Sunday, August 20, 2017

Is it important to have laws barring sex offenders from living anywhere near their victims?

The question in the title of this post is prompted by this new AP piece headlined "Sex offenders can live next door to victims in many states." Here are excerpts:

A convicted sex offender who molested his niece when she was 7 years old moved in next door to his victim nearly a dozen years after he was sent to prison for the crime. Outraged, the Oklahoma woman, now 21, called lawmakers, the police and advocacy groups to plead with them to take action.  Danyelle Dyer soon discovered that what Harold Dwayne English did in June is perfectly legal in the state — as well as in 44 others that don't specifically bar sex offenders from living near their victims, according to the National Conference of State Legislatures.

"I always felt safe in my home, but it made me feel like I couldn't go home, I couldn't have my safe space anymore," Dyer told The Associated Press, which typically doesn't identify victims of sexual assault, but is doing so in Dyer's case because she agreed to allow her named to be used in hopes of drawing attention to the issue.  "He would mow in between our houses.  Him moving in brought back a lot of those feelings."

Advocacy groups say the Oklahoma case appears to be among the first in the U.S. where a sex offender has exploited the loophole, which helps explain why dozens of other states have unknowingly allowed it to exist. "This is something that I would dare say was never envisioned would happen," said Richard Barajas, a retired Texas judge and executive director of the nonprofit National Organization for Victim Assistance.  "In all the years that I've been involved with the criminal justice system, I've never seen a case like this."

Alabama, Arkansas, Indiana, Tennessee and West Virginia have laws dictating how far away sex offenders must stay from their victims — 1,000 feet in Tennessee, for example, and 2,000 feet in Arkansas. Other states haven't addressed the issue, though like Oklahoma they have laws prohibiting sex offenders from living within a certain distance of a church, school, day care, park or other facility where children are present.

"You assume it can't happen and then realize there is no provision preventing it from happening," said one Oklahoma prosecutor, Rogers County District Attorney Matt Ballard, whose agency is responsible for keeping tabs on sex offenders in his area. "To have even the possibility of an offender living next to the victim is extremely troubling."

Arkansas passed its provision in 2007. State Sen. Jeremy Hutchinson, a former prosecutor, said lawmakers drafted the provision out of "common sense," not as a response to a situation like Dyer's. But Barajas, whose group discussed the loophole with attendees at its annual training event this past week, said support for such laws typically gain traction "when someone who was impacted steps up," like Dyer. "Legislation is never created in a vacuum," he said.

Oklahoma lawmakers have now drafted legislation to close the loophole, using Dyer as their champion.  "Of the 70,000 square miles in Oklahoma, this individual happened to choose a place next door to the victim," said state Rep. Kyle Hilbert, who represents Dyer's mostly rural district and is sponsoring the legislation....

Advocacy groups said most legislatures across the U.S. would be able to close the loophole in their laws relatively easily, and said such measures typically receive strong backing from victims, clergy, parents and police.  "I don't see any legal reason why those statutes cannot be amended to ensure that the actual victims are protected; it's no different than prohibiting sex offenders from living 1,000 feet from a church or school," Barajas said. "It's not that the legislation (already on the books) is anti-victim, it's just that we have lacked the voice. We certainly have a megaphone, but when you talk about victims of (sexual abuse), you can't have a megaphone big enough."

Dyer, who is attending the University of Central Oklahoma in the Oklahoma City suburb of Edmond, said she hopes her story will help other victims who may think they're trapped in similar situations. "I think a lot of people feel like they are alone and that nobody cares," Dyer said. "The biggest thing is that they're not alone."

I fully understand the desire and need to protect victims from those who criminally victimized them, not only in sex offense cases but also in other settings.  But if the problem highlighted in this article is rare, I would urge legislatures to be cautious before passing broad new laws that would impact a broad swath of offenders.  With research suggesting that broad sex offender residency restrictions may be doing much more harm than good, I worry about one disconcerting case prompting states to embrace more broad collateral consequences that could create some unexpected consequences.

August 20, 2017 in Collateral consequences, Reentry and community supervision, Sex Offender Sentencing, Victims' Rights At Sentencing | Permalink | Comments (14)

Thursday, August 17, 2017

"Do Criminal Defendants Have Web Rights?"

The title of this post is the headline of this new piece at The Crime Report authored by James Trusty.  The piece provides a review of the Supreme Court's First Amendment work in Packingham v. North Carolina and its possible impact.  Here are excerpts:

Court-imposed web restrictions applied to criminal defendants may be going the way of dial-up internet service. In June, the Supreme Court issued a unanimous ruling in Packingham v. North Carolina that invalidated a state law banning registered sex offenders from accessing websites that could facilitate direct communications with minors.

While the majority opinion and concurrence seems grounded in — and specific to — sex offender restrictions, the evolving communications technology that operates in cyberspace today suggests that the ruling will have an impact on attempts to restrict web access for all criminal defendants in state or federal courts....

Lester Packingham ... [was] convicted of violating a North Carolina statute that prohibits convicted sex offenders from using social-networking websites, such as Facebook and Twitter. The unanimous Supreme Court opinion, written by Justice Anthony Kennedy, reversed the conviction on First Amendment free speech grounds. According to Kennedy, the North Carolina statute was too broad, in that it effectively prevented sex offenders from accessing the “vast democratic forums of the Internet” that serve as principal sources of information on employment opportunities, current events, and opinions or ideas that have no connection to criminal plans or the potential victimization of children.

Justice Samuel Alito agreed, pointing out that the statute’s definition of social networking sites would in effect encompass even Amazon, the Washington Post, and WebMD — all of whom provide opportunities for visitors to connect with other users. In his concurrence, he noted that states were entitled to draft narrower, and constitutionally valid, restrictions because of their legitimate interest in thwarting recidivist sex offenders.

But it’s not at all clear that a state legislature can follow Justice Alito’s guidance and sufficiently narrow its sights on offender/child communication to the point where the law has its intended effect, while still passing constitutional muster.  There may undoubtedly be pedophiliac versions of Tinder or Match.com which could fit the definitions of sites where access can be restricted without harm to First Amendment protections. But today’s internet does not lend itself easily to such narrow definitions.  Even mainstream sites like The Washington Post or Amazon could be considered portals that might be compromised by criminal behavior.  Such sites encourage the kind of user engagement that, while they may not be fairly called a “chat room,” is close enough to a “bulletin board” to bring us right back into the perils of North Carolina’s now-invalidated law.

And what of the defendants facing internet restrictions for reasons other than molestation or child pornography violations?  There are numerous defendants who are bounced off the internet as a condition of probation or supervised release because the internet was an instrumentality for their crimes.  For instance, internet-based fraud, identity theft, or using pro-terrorism websites to construct weapons or murderous plans, are all offenses that have led judges to impose some form of web restriction on defendants.

Web restrictions for these defendants are now also in play in a post-Packingham world. The intention of the judges seeking to restrict web access in these cases is understandable.  They want to remove potential tools of victimization from the hands of convicted criminals.  But the Supreme Court’s recognition of the vast, evolving and multi-purpose nature of today’s internet has brought legitimate First Amendment considerations into almost every web-limiting decision.

We may soon see that the only web restrictions that are lawful and practically enforceable are ones stemming from the defendant volunteering to withdraw from the net — likely because of the perceived trade-off between more time in jail and the judge’s comfort level as to assurances that re-victimization by internet will not occur when the defendant is returned to the community.

In the meantime, Packingham may shape the battlefield when web-restricted defendants are alleged to have violated parole or probation by visiting websites. Judges facing considerably more ominous violations than Lester’s on-line celebration of beating a traffic ticket may find that website-messaging technology and powerful First Amendment concerns leave them with little recourse but to ban outright all attempts to restrict access.  To some, this may be an uncomfortably high price to pay for web freedom.

On a practical level, technology has largely out-paced the now-antiquated view that the Internet can be surgically sliced into “safe” websites and “unsafe” ones, and the unanimity of Packingham suggests that the Court did not struggle much with its rationale.  While the absence of web-restrictions would lead to the release of offenders to the community with an unavoidable dose of discomfort with their access to computers, it may also result in judges finding themselves increasingly satisfied with lengthy prison terms because of the lack of a satisfactory, less-restrictive condition of supervised release....

Perhaps the safer bet here is on technology — that some program, some application, or some web-alternative pops up in the future and revitalizes the possibility of judges restricting web access without violating First Amendment rights. 

August 17, 2017 in Collateral consequences, Reentry and community supervision, Sentences Reconsidered, Technocorrections | Permalink | Comments (3)

Wednesday, August 16, 2017

"Let Prisoners Learn While They Serve"

The title of this post is the headline of this new New York Times editorial.  Here are excerpts:

Criminal justice officials across the country are struggling to break the recidivism cycle in which prisoners are released only to land right back behind bars.  These prisoners are among the most poorly educated people in the country, and that fact holds the key to a solution.  Decades of research has shown that inmates who participate in prison education programs — even if they fail to earn degrees — are far more likely to stay out of prison once they are freed.

That prison education programs are highly cost effective is confirmed by a 2013 RAND Corporation study that covered 30 years of prison education research.  Among other things, the study found that every dollar spent on prison education translated into savings of $4 to $5 on imprisonment costs down the line.  Other studies suggest that prisons with education programs have fewer violent incidents, making it easier for officials to keep order, and that the children of people who complete college are more likely to do so themselves, disrupting the typical pattern of poverty and incarceration.

Findings like these have persuaded corrections officials in both Democratic and Republican states to embrace education as a cost-effective way of cutting recidivism. But Republican legislators in New York — which spends about $60,000 per inmate per year — remain mired in know-nothingism and argue that spending public money on inmates insults taxpayers.  They have steadfastly resisted Gov. Andrew Cuomo’s common-sense proposal for making a modest investment in prison education programs that have already proved highly successful on a small scale in New York’s prisons....

Prison education programs were largely dismantled during the “tough on crime” 1990s, when Congress stripped inmates of the right to get the federal Pell grants that were used to pay tuition.  The decision bankrupted many prison education programs across the country and left private donors and foundations to foot the bill for those that survived.

Despite limited and unreliable funding, these programs have more than proved their value.  New York lawmakers who continue to block funding for them are putting ideology ahead of the public interest.

August 16, 2017 in Prisons and prisoners, Reentry and community supervision, Who Sentences? | Permalink | Comments (2)

Tuesday, August 15, 2017

Two notable new commentaries on how we define violent offenders and what to do with them

My twitter feed yesterday was filled with links to these two notable new commentaries about violent offenders that are both worth the time to read in full:

Here is how Balko's piece wraps up:

[P]aroling more people convicted of violent crimes will inevitably, at some point, somewhere down the line, produce a repeat offender.  The data overwhelmingly suggest that such incidents will be rare enough to be drastically overwhelmed by the benefits of a more generous and forgiving parole policy.  But those rare incidents will be easy to exploit. Advocates should be prepared for them.

In the end, this is a question of what sort of society we want to be. We can be a punitive society that believes in retribution, no matter the costs.  We can be a society that believes in redemption, regardless of cost.  Or we can be a society of people who strive for a rational, data-driven system that will never be perfect, but that will strive to protect us from truly dangerous people while also recognizing that, as the attorney and activist Bryan Stevenson puts it, “each of us is more than the worst thing we’ve ever done.”

August 15, 2017 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (9)

Sunday, August 13, 2017

Making a case against sex offender registries

Newsweek has posted this new opinion piece authored by Professor Trevor Hoppe under the headlined "Are Sex Offender Registries Too Strict?." As evidenced by these excerpts, it seems the author believes the answer to this question is yes:

In my work on sex offender registries, I have found that black men in the U.S. were registered at rates twice that of white men—resembling disparities found in the criminal justice system at large. However, these findings speak to the scope of the problem of American sex offender registries, as approximately 1 percent of black men in the U.S. are now registered sex offenders.  My research suggests that inequality is deeply tied to sex offender policies....

Imagine being punished for something you did three decades ago.  You served your time and thought it was in the past. Under American sex offender laws, moving on is nearly impossible: Most state policies are retroactive, meaning they apply to offenders who committed offenses before these laws were put in place.  While these laws are the subject of several ongoing court battles, most remain in effect.

Offenders are subject to extensive public notification requirements, which include state-run search engine listings that feature their address, mugshot, criminal history and demographic information. In some cases, offenders are also required to publicly post flyers with their pictures or run newspaper notices advertising their residency.  Some states, such as Louisiana, stamp “SEX OFFENDER” in large red script on driver’s licenses.

Having a mugshot disseminated across internet search engines is only the tip of the iceberg; once registered, offenders are subject to a wide array of housing and employment restrictions.  In many places in the U.S., sex offenders are effectively zoned out of cities and towns because there are no residential areas that satisfy all of the numerous regulations. For example, offenders may be prohibited from living within a certain number of feet from a playground. They are often left with no choice but to live under highways or in improvised communities, such as the one in Pahokee, Florida depicted in the New York Times 2013 short film, “Sex Offender Village.”...

Lawmakers ... argue that more invasive policies are necessary because sex offenders are highly likely to commit future crimes. In their view, informing the public of their criminal history will offer protection.  But as the U.S. federal government’s Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering and Tracking notes, sex offender registration requirements “have been implemented in the absence of empirical evidence regarding their effectiveness.”

Now that all 50 U.S. states and Washington, D.C. have developed such registries, the evidence testing the effectiveness of sex offender registries is beginning to mount. It is mixed, at best.

One study followed sex offenders who were labeled “high-risk” for reoffending and who were released from Wisconsin prisons in the late 1990s. That study compared offenders who were subjected to limited public notification requirements with those who were subjected to extensive requirements.  The researchers found no significant difference in the average time between release and a future offense.  In other words, extensive public notification did not deter future offenses.

However, another study evaluated the likelihood of reoffending for sexual offenders labeled “high risk” released from Minnesota state correctional facilities. Here researchers found that offenders subject to community notification were somewhat less likely to commit another sexual offense.

Finally, a recent study found that sex offenders released in Florida between 1990 and 2010 had lower rates of recidivism than offenders of other types of crime -- 6.5 percent for sex offenses, as compared to 8.3 percent for nonsexual assaults and 29.8 percent for drug offenses.  Moreover, that study found that recidivism rates increased after the state legislature implemented sex offender registration requirements in 1997.

While the evidence is mixed that these policies are effective at deterring crime, the evidence of their collateral consequences is more consistent.  Several studies of registered sex offenders have revealed how registries reinforce class inequality by creating patterned experiences of unemployment, harassment and homelessness.

From a public safety perspective, scholars note that registries provide the public with a false sense of security: While the existence of sex offender registries reinforces a myth of “stranger danger,” most offenders in reality are acquaintances or family members.  Balancing the thin support of the registries’ effectiveness against the more robust evidence of their negative effects, one scholar recently concluded these policies do more harm than good.

My research suggests there is also a racialized dimension to the war on sex offenders that complicates arguments in their favor. The evidence does not strongly suggest registries are effective at deterring crime. Rather, their most lasting impact may be their exacerbation of inequalities based on race, class and gender.

August 13, 2017 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (7)

Friday, August 11, 2017

"Certain Certiorari: The Digital Privacy Rights of Probationers"

The title of this post is the title of this new paper available via SSRN authored by Daniel Yeager. Here is the abstract:

In a recent oral argument, a judge on the California Court of Appeal told me they had “at least 50” pending cases on the constitutionality of probation conditions authorizing suspicionless searches of digital devices.  As counsel of record in three of the cases, I feel positioned to comment on this hot topic within criminal law.  My intention here is less to reconcile California’s cases on suspicionless searches of probationers’ digital devices than to locate them within the precedents of the United States Supreme Court, which is bound before long to pick up a case for the same purpose.

Specifically, the Court is bound to hear whether Riley v. California — its 2014 ruling excluding content found on digital devices in warrantless searches of arrestees’ grab-area — applies to probationers.  David Riley’s case arose out of his 2009 arrest by San Diego police, who had lawfully found firearms under the hood of his car.  Incident to Riley’s arrest, police found evidence of his gang membership in a search of his cell phone, which placed itself at an unsolved shooting.  Riley’s subsequent convictions were based on that evidence, which he sought without success to exclude until the Supreme Court reversed in Chief Justice Roberts’s hommage to cell phones — life-altering instruments which a “visitor from Mars might conclude were an important feature of human anatomy.”  Riley has since been cited over 3,000 times as a Fourth Amendment tract that privileges the “privacies of life” over the “often competitive enterprise of ferreting out crime.”

But what, exactly, are Riley’s implications? Is it just a technical ruling on the privacy interests only of arrestees, with no specific applicability to post-conviction phases of criminal cases?  Because the Court’s most on-point precedents — one involving a probationer (United States v. Knights), the other a parolee (Samson v. California) — indicate no stance on Riley’s applicability beyond the arrest context, California courts improvidently consider those precedents legal non-events.  One way or another, the Court will inevitably settle the matter itself, almost certainly within one of the seven electronics-conditions cases now on review in the California Supreme Court.  This Essay details why and how.

August 11, 2017 in Collateral consequences, Reentry and community supervision, Who Sentences? | Permalink | Comments (2)

Tuesday, August 08, 2017

"The Practical Case for Parole for Violent Offenders"

The title of this post is the headline of this notable new New York Times op-ed authored by Marc Morjé Howard.  Here are excerpts:

The American criminal justice system is exceptional, in the worst way possible: It combines exceptionally coercive plea bargaining, exceptionally long sentences, exceptionally brutal prison conditions and exceptionally difficult obstacles to societal re-entry. This punitiveness makes us stand out as uniquely inhumane in comparison with other industrialized countries.
To remedy this, along with other changes, we must consider opening the exit doors — and not just for the “easy” cases of nonviolent drug offenders.  Yes, I’m suggesting that we release some of the people who once committed serious, violent crimes....
[S]entencing reform — mainly consisting of reduced penalties for drug-related crimes — has received bipartisan support at both the federal and state levels. But this isn’t enough. We should also bring back discretionary parole — release before a sentence is completed — even for people convicted of violent crimes if they’ve demonstrated progress during their imprisonment.
Other democracies regularly allow such prisoners to be granted reduced sentences or conditional release. But in the United States the conversation about this common-sense policy became politicized decades ago. As a result, discretionary parole has largely disappeared in most states and was eliminated in the federal system. Prisoners whose sentences include a range of years — such as 15 to 25 years, or 25 years to life — can apply to their state’s parole board for discretionary parole, but they almost always face repeated denials and are sent back to wither away behind bars despite evidence of rehabilitation. (Inmates who have served their maximum sentence are released on what is called mandatory parole.)
Rejection is usually based on the “nature of the crime,” rather than an evaluation of a person’s transformation and accomplishments since they committed it. The deeper reason for the rejection of discretionary parole requests is simple: fear. Politicians and parole board members are terrified that a parolee will commit a new crime that attracts negative media attention.
But this fear-driven thinking is irrational, counterproductive and inhumane. It bears no connection to solid research on how criminals usually “age out” of crime, especially if they have had educational and vocational opportunities while incarcerated.  It permanently excludes people who would be eager to contribute to society as law-abiding citizens, while taxpayers spend over $30,000 a year to house each prisoner.  And it deprives hundreds of thousands of people of a meaningful chance to earn their freedom.
But are prisoners who have served long sentences for violent crimes genuinely capable of reforming and not reoffending?  The evidence says yes.  In fact, only about 1 percent of people convicted of homicide are arrested for homicide again after their release. Moreover, a recent “natural experiment” in Maryland is very telling.  In 2012, the state’s highest court decided that Maryland juries in the 1970s had been given faulty instructions. Some defendants were retried, but many others accepted plea bargains for time served and were released.  As a result, about 150 people who had been deemed the “worst of the worst” have been let out of prison — and none has committed a new crime or even violated parole....
Until recently the political situation was favorable to bipartisan criminal justice reform.  But the election of a self-described “law and order candidate,” the doubling of the stock prices of private-prison companies and the return of the discredited war on drugs gives an indication of the direction of the current administration.
But whenever a real discussion about reform does come, policy makers should look beyond the boundaries of the United States.  To be clear, I am not suggesting that all long-term prisoners should be released nor that the perspectives of crime victims should be ignored.  Serious crimes warrant long sentences.  But other democracies provide better models for running criminal justice and prison systems.  Perhaps we could learn from them and acquire a new mind-set — one that treats prisons as sites to temporarily separate people from society while creating opportunities for personal growth, renewal and eventual re-entry of those who are ready for it.

August 8, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (4)

Thursday, July 27, 2017

Some notable coverage of felon disenfranchisement via Take Care blog

The Take Care blog continues to be a must-read for anyone eager to get a range of law professor perspectives on a range of legal issues related to activities by the Trump Administration and other topics of the era.  And, thanks to a comment by Joe, I just saw that Nancy Leong has recently been covering the issue of felon disenfranchisement there via these teo postings:

Here is an excerpt from the latter of these posts:

Investigators have found a correlation between voting behavior and likelihood of recidivism. In one study, former felons who voted in 1996 were only half as likely to be rearrested during the years 1997-2000 as those who did not vote. Of course, correlation is not causation, and the study neither proves nor disproves that voting caused the rehabilitation of felons who voted. But this information does suggest that voting forms part of an overall pattern of behavior that, collectively, may help to prevent former felons from reoffending. The researchers who conducted the study acknowledged that “the single behavioral act of casting a ballot is unlikely to be the single factor that turns felons’ lives around,” yet also suggest that “it is likely the act of voting is tapping something real, such as a desire to participate as a law-abiding stakeholder in a larger society.”

Other researchers concur. Criminologist Shadd Maruna explains that “ex-offenders who desist seem to find some larger cause that brings them a sense of purpose,” which might include involvement in public affairs. He argues that re-enfranchisement can serve as a “reintegration ritual” that helps a former offender become part of law-abiding society. In a similar vein, legal scholars Guy Padriac Hamilton-Smith and Matt Vogel reason as follows: “if ex-offenders are not deserving of the protections of the law, then there is even less reason for them to abide by it.”

July 27, 2017 in Collateral consequences, Reentry and community supervision | Permalink | Comments (1)

Monday, July 17, 2017

PBS Frontline and the New York Times explore "Life on Parole"

The PBS series Frontline has this new documentary titled "Life on Parole," which will premiere at 10pm on Tuesday July 18 on most PBS stations (and the full film is available online now). Here is how the PBS site briefly describes the documentary:

With unique access, go inside an effort in Connecticut to change the way parole works and reduce the number of people returning to prison.  In collaboration with The New York Times, the film follows four former prisoners as they navigate the challenges of their first year on parole.

The New York Times series in this collaboration is titled "On the Outside," and it is described this way:

We followed 10 people after they were released from prison in a partnership with the PBS series "Frontline." These articles and videos look at the challenges that sent six of them back behind bars.

July 17, 2017 in Procedure and Proof at Sentencing, Reentry and community supervision | Permalink | Comments (6)

Tuesday, July 11, 2017

"It’s time to refocus the punishment paradigm"

The title of this post is the headline of this notable new commentary in The Hill authored by Adam Gelb and Barbara Broderick. Here are excerpts:

[O]ne of the most powerful findings in criminology is that rewards are better shapers of behavior than punishments. But that’s not typically how it works for the 4.7 million Americans on probation or parole, the community supervision programs founded for the purpose of redirecting troubled lives.

Instead, supervision has become mostly about enforcing the rules — report to your probation officer, attend treatment, etc. — and locking people up when they don’t obey.  Corrections professionals call it “Trail ’em, nail ’em, and jail ’em.”

People who commit crimes need to be held accountable for their actions, of course, but the criminal justice system serves a much wider purpose: protecting public safety.  In order to cut crime and recidivism rates — and rein in corrections spending — we need to harness what the research says about changing behavior.  That means refocusing the punishment model and making the primary mission of supervision to promote success, not just punish failure.

This fundamental transformation is one of a set of proposed paradigm shifts in community corrections highlighted in a report set to be released later this month from Harvard’s Kennedy School of Government and the National Institute of Justice — the product of three years of discussions among leading experts in criminal justice, of which we were a part.

Our group sought to identify strategies for probation, parole, and other programs that can both promote public safety and build trust between communities and justice institutions.  Other shifts include moving from mass to targeted supervision, concentrating resources on more serious offenders, and swapping intuition-based policies for evidence-based practices (such as focusing treatment on changing characteristics that contribute to offending, like poor impulse control, and avoiding those that don’t.)

Making supervision more reward-based holds great potential.  A probation officer’s job has traditionally been defined as reactive: wait until something bad happens and then impose a sanction, often a return to prison. This not only costs state taxpayers an average of $30,000 per year for each inmate, it also ignores a good part of what we know works best when it comes to steering ex-offenders away from continued criminality....

Drug courts have helped pioneer reward-based practices by holding graduation ceremonies to commemorate program completion.  Many graduates say it’s the first time in their lives that they’ve achieved something and been publicly acknowledged for it, and studies suggest that this type of recognition inspires them to persist in their sobriety.

Such ceremonies shouldn’t be limited to specialized courts or programs, which handle only a small fraction of the millions of people on community supervision.  They should be expanded and accompanied by other rewards for progress along the way.  Local communities and businesses can chip in with small gift cards and other tokens of recognition.

At least 15 states have passed laws that establish “earned compliance credits,” which typically permit offenders to earn a month off of their supervision terms for each month that they’re in compliance.  This tactic could be expanded and used in new ways.  For instance, for each month they obey the rules, parolees or probationers could have a reduction or elimination of the monthly fee (typically about $50) that they’re required to pay.

Another potentially promising method would capture the power of social media to push positive messages to probationers and parolees when they do well.  Pass a drug test, complete a phase of treatment, or get a job — and you’d receive a batch of digital pats on the back from your treatment team and circle of family and friends.

It’s human instinct to punish wrongdoing, and accountability won’t — and shouldn’t — vanish from the criminal justice system.  We can’t just reward people when they do right but fail to respond when they do wrong. But by shifting the emphasis from retribution to rewards, we can make a greater impact on behavior.

July 11, 2017 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (5)

Sunday, July 09, 2017

"Death Row Dogs, Hard Time Prisoners, and Creative Rehabilitation Strategies: Prisoner-Dog Training Programs"

The title of this post is the title of this recently published article authored by Paul Larkin. Here is the abstract:

More and more prisons have witnessed the success of Prisoner-Dog Training Programs (PDPs) in the last few years.  PDPs entail a prisoner training an animal (usually a dog) to be a service animal for the disabled or a well-behaved household pet.  PDPs at state and federal prisons have turned out to be a win-win-win.  The animals involved in the program are typically those at risk of being euthanized, giving those animals a second chance at life; the community benefits because people adopt well-behaved and trained animals; and the prisoner-trainers learn what it means to contribute to society in a material way, to develop emotional connections, and to care for others.  At first glance, these programs seem perfect—which begs the question: Why are they not in every prison?

This article examines PDPs and the success of those programs in the case studies that have been conducted.  The Article suggests that in order for more successful PDPs to be launched, more data needs to be collected.  In analyzing PDPs, this Article looks at the history of criminal punishment through the lens of rehabilitation versus retribution, then proceeds to an overview of PDPs and their promising initial data.  Finally, this Article discusses the need for further examination of PDPs and their effectiveness, as well as possible mechanisms that could be used to expand their uses. Ultimately, this Article encourages the Department of Justice and Congress to lend greater support to PDPs in federal and state prisons. 

July 9, 2017 in Criminal Sentences Alternatives, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (2)

Saturday, July 08, 2017

DOJ urges SCOTUS not to review Sixth Circuit panel decision finding retroactive application of Michigan sex offender law unconstitutional

As reported in this post from last summer, a Sixth Circuit panel concluded in Does v. Snyder, No. 15-1536 (6th Cir. Aug. 25, 2016) (available here), that Michigan's amendments to its Sex Offender Registration Act (SORA) "imposes punishment" and thus the state violates the US Constitution when applying these SORA provisions retroactively.  Michigan  appealed this decision to the US Supreme Court, and SCOTUS in March asked for the US Acting Solicitor General to express its views on the case.

Yesterday, the Acting SG filed this brief with SCOTUS stating that in "the view of the United States, the petition for a writ of certiorari should be denied." The discussion section of the brief begins this way:

Michigan’s sex-offender-registration scheme contains a variety of features that go beyond the baseline requirements set forth in federal law and differ from those of most other States.  After applying the multi-factor framework set out in Smith v. Doe, 538 U.S. 84 (2003), the court of appeals concluded that the cumulative effect of SORA’s challenged provisions is punitive for ex post facto purposes.  While lower courts have reached different conclusions in analyzing particular features of various state sex-offender-registration schemes, the court of appeals’ analysis of the distinctive features of Michigan’s law does not conflict with any of those decisions, nor does it conflict with this Court’s holding in Smith.  Every court of appeals that has considered an ex post facto challenge to a sex-offender-registry statutory scheme has applied the same Smith framework to determine whether the aggregate effects of the challenged aspects of that scheme are punitive.  And although most state sex-offender-registry schemes share similar features, they vary widely in their form and combination of those features.  Accordingly, to the extent the courts of appeals have reached different outcomes in state sexoffender-registry cases, those outcomes reflect differences in the statutory schemes rather than any divergence in the legal framework.  Finally, petitioners’ concern (Pet. 26-29) that the court of appeals’ decision will prevent the State from receiving some federal funding does not warrant review.  That concern is premature, as it may well be the case that Michigan can continue to receive federal funds notwithstanding this decision.  And the decision does not prevent the State from implementing a sex-offender-registration scheme that is consistent with federal law.  Further review is therefore not warranted.

July 8, 2017 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (16)

Saturday, July 01, 2017

UK study finds greater recidivism among sex offenders who received treatment in prison

As reported in this BBC article, the "main sex offender treatment programme for England and Wales has been scrapped after a report found it led to more reoffending." Here is more:

Researchers found prisoners completing the programme were slightly more likely to offend than a control group.  The Ministry of Justice (MOJ) replaced the scheme in March after research confirmed evidence of its weaknesses. The main programme to psychologically treat the highest-risk offenders has also been replaced, the ministry said.

The MOJ confirmed the change in treating sex offenders following publication on Friday of its own study which suggested the Core Sex Offender Treatment Programme (SOTP) could be making the situation worse. The scheme, designed to challenge the behaviour of male sex offenders with psychological techniques to change their thinking, was first approved in 1992.

Researchers followed what happened to 2,562 prisoners who took part in the 180 hours of group sessions before their later release from prison. They then compared their behaviour over the following years with more than 13,000 comparable offenders.

"More treated sex offenders committed at least one sexual re-offence [excluding breach of conditions of release] during the follow-up period when compared with the matched comparison offenders (10% compared with 8%)," said the study. "More treated sex offenders committed at least one child image re-offence when compared with the matched comparison offenders (4.4% compared with 2.9 %).

"The results suggest that while Core SOTP in prisons is generally associated with little or no changes in sexual and non-sexual reoffending ... the small changes in the sexual reoffending rate suggest that either Core SOTP does not reduce sexual reoffending as it intends to do, or that the true impact of the programme was not detected.

"Group treatment may 'normalise' individuals' behaviour. When stories are shared, their behaviour may not be seen as wrong or different; or at worst, contacts and sources associated with sexual offending may be shared." An earlier version of the scheme, in place in 2000, had appeared to reduce the offending of medium-risk men. But a study seven years later, after Core SOTP had been expanded, suggested the sessions had become too generic and based around a "detailed manual", rather than tailored to each offender.

The full Ministry of Justice study is available at this link.

July 1, 2017 in Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (9)

Wednesday, June 28, 2017

Impressive refreshment of Restoration of Rights Project

CcrcIn this post nearly five years ago, I noted the creation by the National Association of Criminal Defense Lawyers (NACDL) of a terrific on-line resource profiling the law and practice in each US jurisdiction relating to relief from the numerous civil rights and other consequences of criminal conviction.  Now, as detailed in this news release, this resource has gotten an impressive new update. Here are the details via the release:

The Collateral Consequences Resource Center and its partner organizations, the National Association of Criminal Defense Lawyers, the National Legal Aid and Defender Association, and the National HIRE Network, are pleased to announce the launch of the newly expanded and fully updated Restoration of Rights Project.

The Restoration of Rights Project is an online resource that offers state-by-state analyses of the law and practice in each U.S. jurisdiction relating to restoration of rights and status following arrest or conviction.  Jurisdictional "profiles" cover areas such as loss and restoration of civil rights and firearms rights, judicial and executive mechanisms for avoiding or mitigating collateral consequences, and provisions addressing non-discrimination in employment and licensing. Each jurisdiction's information is separately summarized for quick reference.

In addition to the jurisdictional profiles, a set of 50-state comparison charts summarizes the law and illustrates national patterns in restoration laws and policies.  We expect to supplement these resources in weeks to come with jurisdiction-specific information about organizations that may be able to assist individuals in securing relief, and information on other third-party resources.

The resources that comprise the Restoration of Rights Project were originally published in 2006 by CCRC Executive Director Margaret Love, and the profiles and comparison charts have expanded over the years to broaden their scope and to account for the many changes in this complex area of the law.  The project has recently been hosted by CCRC and NACDL, and its resources have been published in the treatise on collateral consequences published jointly by NACDL and Thompson Reuters (West).

Project resources have now been re-organized into a unified online platform that makes them easier to access, use, and understand.  The short "postcard" summaries of the law in each state -- which serve as a gateway to more detailed information -- have also been reviewed and revised to provide a more current and accurate snapshot of applicable law in each state.

The Project is intended as a resource for practitioners in all phases of the criminal justice system, for courts, for civil practitioners assisting clients whose court-imposed sentence has exposed them to additional civil penalties, for policymakers and advocates interested in reentry and reintegration of convicted persons, and for the millions of Americans with a criminal record who are seeking to put their past behind them.

The Restoration of Rights Project is available now at: http://restoration.ccresourcecenter.org

June 28, 2017 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Who Sentences? | Permalink | Comments (0)

Wednesday, June 21, 2017

A misdirected attack on two notable sentences in Justice Alito's Packingham concurrence

There is a lot worth discussing concerning the Supreme Court's decision in Packingham earlier this week (basics here), and this new Washington Post "Fact Checker" piece decides to give particular attention to two lines from Justice Alito's concurrence in a piece headlined "Justice Alito’s misleading claim about sex offender rearrests."  I find the WaPo piece itself somewhat misleading (or really misdirected) because it is focused too much on the second of these two sentences in Justices Alito's opinion rather than the first:

“Repeat sex offenders pose an especially grave risk to children. ‘When convicted sex offenders reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault.’”

After reviewing a bunch of statistics, this WaPo piece comes to this conclusion:

The reference to sex offender rearrest trends in Alito’s opinion is quite misleading.  It measures the likelihood of sex offenders to be arrested for sex crimes after release from prison, and compares it to the likelihood of non-sex offenders to be arrested for sex crimes after release.  This makes it seem like recidivism among sex offenders to be a uniquely bad problem, but it is an apples-to-oranges comparison.

This opinion cites previous opinions that use outdated data going back to the 1980s — more than 30 years ago.  Moreover, it obscures the fact according to 2005 data, the percentage of sex offenders getting rearrested for the same crime is low compared to non-sex offenders, with the exception of people convicted of homicide.   It does the public no service when the Supreme Court justices make a misleading characterization like this.  We award Three Pinocchios.

I find disconcerting that what this WaPo piece is calling " quite misleading" is a sentence (the second one above) that is factually accurate.  The piece strikes me as especially problematic because it fails to stress that what might make the second sentence about "sex offender rearrest trends" potentially misleading is that it follows the forceful assertion that "repeat sex offenders pose an especially grave risk to children."  In my reading, it is the phrase "especially grave risk to children" that contributes to the impression that "recidivism among sex offenders [is] a uniquely bad problem."

That all said, the ever bigger problem with the law at issue in Packingham and lots of other similar laws and the WaPo commentary itself is use of the always-way-too-broad offender category of "sex offender."  This board label necessarily lumps together some relatively minor adult offenders and some relatively very serious offenders who consistently victimize children.  There are certainly some serious sex offender who do pose an "especially grave risk to children," but many folks on sex offender registries may pose less of a risk to children than do the average person.

Ultimately, these are challenging issues to discuss with precision both conceptually and statistically.  And though I am always pleased to see detailed discussion of crime data in the Washington Post, I am troubled by its decision to "award Three Pinocchios" to a statement that is factually true. 

UPDATE: I just noticed that Ed Whelan over at Bench Memos has this more thorough review of this WaPo piece under the titled "Fact-checking the fact Checker."

June 21, 2017 in Data on sentencing, Reentry and community supervision, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (25)

Monday, June 19, 2017

SCOTUS declares unconstitutional North Carolina criminal law restricting sex offender access to social media

Today was a big day for the First Amendment in the US Supreme Court.  In addition to a notable First Amendment trademark ruling, the Court handed down a widely anticipated ruling in Packingham v. North Carolina, No. 15–1194 (S. Ct. June 19. 2017) (available here), dealing with a state law restricting internet access for sex offenders.  Here is how the Court's majority opinion in Packingham, authored by Justice Kennedy, gets started and a key closing paragraph:

In 2008, North Carolina enacted a statute making it a felony for a registered sex offender to gain access to a number of websites, including commonplace social media websites like Facebook and Twitter.  The question presented is whether that law is permissible under the First Amendment’s Free Speech Clause, applicable to the States under the Due Process Clause of the Fourteenth Amendment....

In sum, to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights. It is unsettling to suggest that only a limited set of websites can be used even by persons who have completed their sentences.  Even convicted criminals — and in some instances especially convicted criminals — might receive legitimate benefits from these means for access to the world of ideas, in particular if they seek to reform and to pursue lawful and rewarding lives.

The majority opinion in Packingham is quite short, but that does not mean it does not pack a punch.  In fact, Justice Alito authored an extended concurrence which was joined by the Chief Justice and Justice Thomas in order to lament some of the "undisciplined dicta" in Justice Kennedy's short majority opinion.  Here is how the concurrence begins:

The North Carolina statute at issue in this case was enacted to serve an interest of “surpassing importance.” New York v. Ferber, 458 U.S. 747, 757 (1982) — but it has a staggering reach.  It makes it a felony for a registered sex offender simply to visit a vast array of websites, including many that appear to provide no realistic opportunity for communications that could facilitate the abuse of children.  Because of the law’s extraordinary breadth, I agree with the Court that it violates the Free Speech Clause of the First Amendment.

I cannot join the opinion of the Court, however, because of its undisciplined dicta.  The Court is unable to resist musings that seem to equate the entirety of the internet with public streets and parks.  Ante, at 4–5.  And this language is bound to be interpreted by some to mean that the States are largely powerless to restrict even the most dangerous sexual predators from visiting any internet sites, including, for example, teenage dating sites and sites designed to permit minors to discuss personal problems with their peers.  I am troubled by the implications of the Court’s unnecessary rhetoric.

(Though the issues in Packingham are no laughing matter, I am getting a giggle thinking about whether the phrase "undisciplined dicta" would better serve as my stage name if I was part of a nerdy rap band or just ought to be made into a rubber-stamp to help all my students add that commentary to course evaluations.)

June 19, 2017 in Criminal Sentences Alternatives, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing, Technocorrections, Who Sentences? | Permalink | Comments (16)

Tuesday, June 13, 2017

Notable prisoner makes notable case for prison education and programming ... only for some

I have been following the work an writings of Jeremiah Bourgeois, a juvenile offender sentenced to LWOP (but now eligible for parole) in Washington State, since he authored this thoughtful and personal essay for the Ohio State Journal of Criminal Law a few years ago. His latest column for The Crime Report, headlined "Educate a Prisoner, Save a Life," begins by stressing that the reason for [his personal] change is not hard to find: the higher education courses [he has] been taking during my incarceration." As he goes on to put it: "It is amazing what an education can do. It can transform the violent and ignorant into the peaceful and intelligent."

But, intriguingly, while using his own story to make the case for "making higher education available in correctional facilities," his column also suggests that reform advocates and public officials need to urge "correctional systems [to] finally abandon[] efforts to change those who — quite simply — are content to continue the behavior which led them to prison in the first place." Here is part of his explanation for what he suggests should be a kind of modern prison programming triage:

I have never been able to wrap my mind around why correctional officials believe they can force change on those who are committed to wrongdoing. Nevertheless, they keep trying. One of the purposes of punishment in Washington State is to “offer the offender an opportunity to improve himself or herself.”  In practice, the state’s Department of Corrections (DOC) has transformed this legislative decree into a Don Corleone-esque offer that prisoners cannot easily refuse.

DOC uses a carrot and stick approach. Prisoners can earn a small reduction in their sentence for every month that they follow the dictates of the Facility Risk Management Team (FRMT), which is a group comprised of the prisoner’s counselor and other unit staff, and outlines the programs the prisoner must complete in order to receive this “earned time.” This is the carrot.  The stick involves disciplinary sanctions for refusing to abide by the expectations established by the FRMT. Enough of these, and the prisoner will be transferred to ever more secure facilities until, in the end, he is confined in long-term administrative segregation.

All of this is done in an effort to mitigate the risk that prisoners will commit crimes upon being freed.  The belief is that requiring prisoners to work or go to school or undergo treatment interventions will reduce their likelihood of re-offending. On its face, such policies are rational.  Nobody wants prisoners to rejoin society in the same sorry state they were in when removed from it.

But the fact remains that resources are often devoted toward recalcitrant prisoners whose words and deeds manifest their commitment to the criminal subculture.  Having watched the same people cycle through prison over and over again, it’s clear to me that this subset of individuals are a bad investment — with diminishing returns.  Moreover, history has demonstrated that even the rack-and-screw is no match against the conviction of true believers, and many prisoners are just stubbornly unwilling to repent for a life of crime.

You can spot them throughout the penitentiary, begrudging the policies that compel them to work or go to school or to participate in treatment programs meant to change them. He is the slacker in the dish tank talking about how much “paper” he used to make on the streets.  He is the 20-something in the Adult Basic Education classroom spending the school-day freestyle rapping and sleeping.  He is the man in chemical dependency treatment tweaking on methamphetamines....

The time has come for rehabilitative efforts to be devoted toward prisoners who have the most likelihood of being rehabilitated.  Once upon a time, correctional systems had the luxury of trying to change such men. But those days are over. There is no money left to continue such social experiments.

Arrogance and paternalism is a combination that is antithetical to fiscal responsibility and sound correctional policies.  The time has come for rehabilitative efforts to be devoted toward prisoners who have the most likelihood of being rehabilitated, rather than those who are most likely to re-offend.  Moreover, such programs should be made available to those who seek it rather than mandating prisoners to participate in them.

Take the University Beyond Bars (UBB) for example.  Every participant in the UBB is there because they want to be, for this higher education program at MCC is entirely voluntary. Even when college credit cannot be offered due to lack of funding, prisoners readily sign up simply for self-enrichment.  As a member of the Prisoner Advisory Committee for the UBB, I saw such men come to recognize their capacity to complete college studies; and, more importantly, conceive of living lives removed from criminality.

These are the prisoners worth saving.  It may seem cruel, but in an emergency, triage is about not wasting one’s time and efforts on the hopeless.  Correctional systems should adopt the same sense of mission and purpose.

The uniquely informed perspective behind this commentary makes me eager to endorse its notable message, and yet I wonder and worry about the ability of correction officials and other to fairly and effectively figure out which prisoners are "worth saving" and which are "hopeless."  Like so many sound and sensible suggestions in the arena of sentencing and corrections, the devil would seem to be in the details here if and when corrections officials only made prison education and programming available to those who appeared worthy of these resources.

June 13, 2017 in Offender Characteristics, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (6)

Friday, June 02, 2017

Considering the unique housing challenges for aging sex offenders

This new Atlantic article explores the questions that now attend an ever-growing and ever-aging sex offender population.  The piece is headlined "The Puzzle of Housing Aging Sex Offenders: States are grappling with how to care for a growing population of registered offenders in long-term care facilities."  Here are excerpts:

When state officials finally released William Cubbage from the Iowa Mental Health Institute in 2010, they predicted he was too sick to hurt anyone again. But the octogenarian only became an even more notorious sex offender....

And while Cubbage’s case is extreme, he’s symptomatic of a larger puzzle in America’s long-term care facilities that no one’s managed to solve.  As lawmakers in Oklahoma and Ohio have found, isolating aging sex offenders is easier planned than achieved.

“The problem is that you’re talking about a project that’s uniquely difficult when it comes to structural needs and safety,” says Amy McCoy, a public-information officer with the Iowa Department of Human Services. “You’re talking about things like hallways without corners. You’re also talking about building a place that isn’t a prison. It’s something entirely different from a traditional care facility. You want people in the least restrictive setting, but you also want to be able to respond if something does happen.”

Local lawmakers have been sounding alarms for at least a decade whenever sex offenders strike.  With no federal regulations dictating how long-term care centers should handle offenders, solutions vary state to state. In 2012, Iowa’s Governor pushed a bill requiring nursing homes to notify residents if an offender moved in, but it died in the legislature.  California’s Department of Corrections notifies nursing homes if anyone on the sex-offender registry applies for residency, and the nursing homes are required to notify residents and employees.  Illinois facilities forbid offenders from having roommates and tests them for any special care needs before sending the results to local police and the Department of Public Health. (Requests to interview multiple nursing homes in Iowa, Ohio, and Illinois for this story went unanswered.)

Just as Iowa’s now considering, Oklahoma passed law in 2008 to create a specialized nursing home for offenders.  But not a single bid to construct the property was submitted.  A contractor’s reluctance to be involved with such a property could be due to its specialized requirements, but in the view of the sex-offender advocate Derek Logue, it’s just as likely another case of people not wanting any connection to the registry. Logue is the founder of Once Fallen, which calls itself the “leading reference & resource site for Registered Citizens.” A Cincinnati resident, Logue himself is registered in Ohio for a 2001 conviction of First Degree Sexual Abuse against an underage girl. At age 40, he calls himself “one of the younger guys”; most offenders who call for help finding a place to live or a job are in their 50s or 60s.

“If you look at the nursing homes that do take registered citizens, they tend to have below-average grades,” Logue says. “It’s the same issue [offenders] face when they’re trying to find a place to live.  You’ll never be anywhere decent, you always end up with some landlord who doesn’t care about the property.  We don’t exactly get quality service.”

Logue knows you won’t cry over his failure to score a luxury penthouse, but he counters that he’s served his time.  And it’s his tribe’s pariah statues, he says, that makes registered offenders likely to need extra medical attention in their declining years.  Beyond the Gordian knot that is the ongoing argument over the sex-offender registry’s effectiveness, constitutionality, and methods of inclusion, offenders are less likely to be employed, more likely to live in poverty if they do have full-time work, and subsequently less likely to have access to preventive care.

It’s also hard to gauge exactly how much of a danger they pose as seniors. Sexual assaults are already underreported crimes, and recidivism rates among all ages vary from study by study. Karl Hanson and Kelly Morton-Bourgon, a pair of sex-crimes researchers who work for the Canadian government, estimate that the average rate is likely around 13.7 percent. Meanwhile, multiple recent studies suggest recidivism rates seem to decline among the elderly....

Another blind spot is that almost no one is counting how many sex offenders require end-of-life care. Back in 2006, the U.S. Government Accountability Office counted 700 registered sex offenders living in nursing homes or intermediate care facilities. More recent numbers among the nation’s 15,600 long-term care facilities and their 1.4 million residents are hard to come by.

June 2, 2017 in Collateral consequences, Reentry and community supervision, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (9)

"From Grace to Grids: Rethinking Due Process Protection for Parole"

The title of this post is the title of this notable new paper available via SSRN authored by Kimberly Thomas and Paul Reingold. Here is the abstract:

Current due process law gives little protection to prisoners at the point of parole, even though the parole decision, like sentencing, determines whether or not a person will serve more time or will go free.  The doctrine regarding parole, which developed mostly in the late 1970s, was based on a judicial understanding of parole as an experimental, subjective, and largely standardless art — rooted in assessing the individual “character” of the potential parolee.

In this Article we examine the foundations of the doctrine, and conclude that the due process inquiry at the point of parole should take into account the stark changes in sentencing and parole practice over the years.  Since the development of the parole due process doctrine in the 1970s, two seismic shifts have occurred.  First, the constitutional protections provided at the initial sentencing have vastly increased.  Second, the parole process itself has been transformed by the move to evidence-based parole guidelines and the use of actuarial risk-assessment instruments as the norm in parole decision-making.

In this Article we document the changes in this under-scrutinized area and assert that the liberty interest in parole should more closely match the present-day legal account of the liberty interest that courts afford defendants at sentencing. 

June 2, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Thursday, June 01, 2017

“Using Time to Reduce Crime: Federal Prisoner Survey Results Show Ways to Reduce Recidivism”

Prison-Report_Website-BannerThe title of this post is the title of this notable new report from the folks at Families Against Mandatory Minimums. This FAMM press release provides this overview of the report and its key findings:

Families Against Mandatory Minimums (FAMM) today released the findings of the first-ever independent survey of federal prisoners, which focused on the type and quality of educational and vocational training programs, as well as substance abuse and mental health treatment, currently available in America’s federal prisons. “Using Time to Reduce Crime: Federal Prisoner Survey Results Show Ways to Reduce Recidivism” offers unique insights from inside federal prisons and includes 13 recommendations for reform.

“Roughly 94 percent of federal prisoners are going to go home one day.  If they leave smarter, sober, and job-ready, they will be much more likely to thrive — and our country will be safer and more prosperous,” said FAMM President Kevin Ring.  “Unfortunately, our survey found that the federal government is failing to make recidivism-reducing programming available to all prisoners who need it.  President Trump’s new budget proposal, which slashes the Bureau of Prisons’ staff and corrections officers, will only make the problem worse.”

FAMM regularly corresponds with more than 39,000 prisoners via email, and more than 2,000 inmates responded to the survey.  This report quantifies, analyzes, and confirms the numerous stories we have heard from prisoners over the years.  FAMM found that too many prisoners are not getting access to the programs that have been proven to reduce recidivism....

Key findings from the report include:

  • Access to quality education is scarce.  Most classes lack rigor and substance and are taught by other prisoners. Inmates reported taking classes such as crocheting and one based on the TV show Jeopardy.  Attaining a college degree is difficult, if not impossible, for most prisoners.

  • Most jobs afforded to inmates are “make work” jobs to service the prisons, such as cleaning bathrooms and living spaces or dining hall services.  Vocational training is popular and coveted, but is limited and only offered to prisoners who are close to their release dates.

  • Not all inmates who need substance abuse or mental health services are getting help.  Two-thirds of respondents said they entered prison with a drug or alcohol addiction.  In addition, more than two-thirds said they had not received mental or behavioral health treatment in prison.  These types of programs should be expanded to help all prisoners in need of treatment, no matter the length or duration of their sentence.

  • Most prisoners are housed too far away from their families to maintain connections.  Family connections have been proven to reduce recidivism, yet most prisoners are housed more than 500 air miles away from home.

June 1, 2017 in Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (1)

Monday, May 29, 2017

"Predicting Sex Offender Recidivism: Using the Federal Post-Conviction Risk Assessment Instrument to Assess the Likelihood of Recidivism Among Federal Sex Offenders"

The title of this post is the title of this new article available via SSRN authored by Thomas Cohen. Here is the abstract:

Sex offenses are among the crimes that provoke serious public concern.  The federal response to the problem of sex offending has resulted in an exponential increase in the number of sex offenders on federal post-conviction supervision; however, relatively few studies have explored whether and how well the actuarial risk instrument currently used by federal probation officers — the federal Post Conviction Risk Assessment instrument or PCRA for short — accurately predicts reoffending behavior among the federal sex offender population.

This study provided an exploration of the PCRA’s capacity to effectively predict subsequent recidivism activity for convicted federal sex offenders.  Results show that the PCRA accurately predicts recidivistic behavior involving the commission of any felony or misdemeanor offenses, violent offenses, and probation revocations for this population. However, the PCRA’s predicative capacities deteriorate when the instrument is used to assess the likelihood of sexual recidivism.  In addition, this study showed that offenders convicted of online child pornography offenses presented some challenges in terms of predicting their reoffending behavior because they manifested lower PCRA risk scores and recidivism rates compared to offenders convicted of other major federal sexual offenses that typically involve more hands-on behavior.

May 29, 2017 in Data on sentencing, Offender Characteristics, Offense Characteristics, Reentry and community supervision | Permalink | Comments (2)

Friday, May 19, 2017

US Commission on Civil Rights conducting big hearing on collateral consequences

As detailed in this official meeting notice, the United States Commission on Civil Rights is having a big public "briefing" focused on "Collateral Consequences: The Crossroads of Punishment, Redemption, and the Effects on Communities." The event in DC begins at 9:30 am and will be live-streamed at this link. Here is the scheduled run-down of the panels and speakers:

Panel One: Overview of Collateral Consequences of Incarceration:

National experts provide an overview of the long-lasting effects of incarceration after a prison sentence has ended. Panelists will discuss how these continuing barriers impact recidivism and particular communities. Speakers’ Remarks:

  • Margaret Love, Executive Director, Collateral Consequences Resource Center
  • Vikrant Reddy, Senior Research Fellow, Charles Koch Institute
  • Traci Burch, Associate Professor of Political Science, Northwestern University
  • John Malcolm, Vice President of the Institute for Constitutional Government, Heritage Foundation
  • Naomi Goldberg, Policy and Research Director, Movement Advancement Project

Panel Two: Access to Civil Participation after Incarceration:

National experts and professors discuss the barriers to civil participation following incarceration, specifically focusing on the right to vote and jury participation. Speakers’ Remarks:

  • Marc Mauer, Executive Director, The Sentencing Project
  • Hans von Spakovsky, Senior Legal Fellow, Meese Center for Legal and Judicial Studies, Heritage Foundation
  • James Binnall, Assistant Professor of Law, Criminology, and Criminal Justice, California State University at Long Beach
  • Anna Roberts, Assistant Professor, Seattle University School of Law and Faculty Fellow, Fred T. Korematsu Center for Law and Equality

Panel Three: Access to Self-Sufficiency and Meeting Basic Needs:

National experts discuss the barriers to self-sufficiency and meeting basic needs after incarceration. Panelists will focus on employment, housing and access to public benefits. Speakers’ Remarks:

  • Maurice Emsellem, Program Director, National Employment Law Project
  • Kate Walz, Director of Housing Justice, Sargent Shriver National Center on Poverty Law
  • Amy Hirsch, Managing Attorney, North Philadelphia Law Center; Welfare, Aging and Disabilities Units, Community Legal Services
  • Marc Levin, Director, Center for Effective Justice; Texas Public Policy Foundation; Right on Crime

May 19, 2017 in Collateral consequences, Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (2)

Tuesday, May 16, 2017

New lifetime GPS tracking for old sex offenders raising concerns in Missouri

This lengthy local article, headlined "Hundreds of Missouri sex offenders now required to wear GPS monitoring devices for life," reports on a new sex offender monitoring law that is causing consternation. Here are excerpts:

A sex offender from St. Charles County thought he had moved on with his life after successfully completing five years of probation for sending webcam photographs of his genitals to an undercover police officer posing as a 13-year-old girl.  Now he’s among hundreds of people in Missouri who are learning they must attach GPS monitoring systems to their ankles for life, even though such a requirement wasn’t part of their sentencing agreement.

The devices send out alerts if an offender lingers near a school or a park.  Cut the wide black strap and the waterproof device will tell on them. It beeps to prompt a verbal command from state officials, say to make a payment or report to probation officers immediately.

The retroactive requirements are part of a revised state criminal code that went into effect Jan. 1.  Offenders either found guilty or who pleaded guilty to 13 various sex crimes in question based on an act committed on or after Aug. 28, 2006, are subject to the added security measures.  Previously, the monitoring technology was used for a more limited class of high-risk offenders.

The St. Charles man is among several sex offenders who are suing and challenging the state. In the lawsuit, in which he is named only as D.G., the 40-year-old argues that the law didn’t exist when he pleaded guilty.  He claims he’s no longer “legally subject” to the jurisdiction of state prison authorities. He argues that he shouldn’t be required to pay monthly supervision fees for decades, nor have travel or residency restricted for life.

“I don’t think a lawyer can make a straight-faced argument that it’s constitutional,” said Clayton-based attorney Matt Fry, who is suing the state on behalf of D.G. and has many other plaintiffs in the wings.

A March 29 “Dear Sir/Madam” letter from chief state supervisor Julie Kempker lays out the law, including threat of a class D felony if conditions are violated.  “We understand that this change may be unexpected,” Kempker said in the letter.  “Rather than being detracted by the lifetime supervision requirements, you are encouraged to remain focused on your daily supervision responsibilities and to do those things that improve your life and positively impact your family and the community in which you live.”

Many sex offenders panicked and started calling lawyers. Some are confused: for instance, those no longer on supervision who moved away from Missouri.

A 41-year-old sex offender from south St. Louis County said he sees the changes as unlawful, too costly and ineffective.  “Lifetime. For the rest of your life. I can’t even comprehend it,” said the man, who didn’t want to be identified to avoid bringing more unwanted attention to himself.

According to court records, he pleaded guilty in 2012 to first-degree child molestation for touching the genitalia of a friend’s 7-year-old daughter.  The first-time offender was sentenced to 10 years in prison. He spent four months behind bars before he was let out to undergo treatment in the community. So long as he did well, he’d be done with state supervision after five years on probation, not including registering as a sex offender for life.  But during a monthly visit to his probation officer in April, he found out about being subject to the added layer of oversight.

He said he argued that lifetime GPS monitoring wasn’t part of his sentencing agreement. Still, the device was attached April 26.  He’s still getting used to wearing it. He said the device puts his job stocking snack machines in jeopardy and that he’s too embarrassed to wear shorts in public . He said it seemed like extra punishment added after the fact.

Kim Kilgore, the St. Louis County prosecutor who handled his case, disagreed. “It’s a collateral consequence of his plea,” Kilgore said. “The legislature has spoken that, in the interest to the public, he should be required to wear this. Mind you, his victim was 7 years old.”

She said sex offenses are a public health issue and should be handled accordingly, similar to people with a contagious disease who are quarantined. “Think of the burden that my victim suffers every day of her life for something he chose to do,” she said.

Officials have tried to notify at least 432 sex offenders like the man from south St. Louis County about the new monitoring requirements, according to the Department of Corrections, which oversees the division of probation and parole.  At the end of April, 364 of them had been placed on GPS monitoring.  They were already on state supervision. About 800 prison inmates are on deck. So are 500 people who already completed their sentences and are considered free.

May 16, 2017 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sex Offender Sentencing, Technocorrections | Permalink | Comments (25)

Sunday, May 14, 2017

Notable review of Colorado's recent experiences and concerns with polygraph testing of sex offenders

The Denver Post has this interesting article about the monitoring and testing of sex offenders in the Centennial State.  The piece is headlined "Colorado’s pricey polygraph testing of sex offenders under fire as critics target accuracy, expense: Psychologist calls state’s $5 million polygraph program 'grossly excessive' as state legislature examines cost."  Here are some excerpts from the extended piece:

Colorado has spent more than $5 million to administer polygraphs on convicted sex offenders over the last seven years despite concerns that the tests are so unreliable they can’t be used as evidence during civil or criminal trials.

Polygraphs help officials decide which prisoners convicted of sex offenses are suited for release from prison by probing their sexual history, attitudes about their crimes and whether they are committing new offenses.  They also guide how offenders on parole or probation are supervised.  “The polygraph really gives useful information,” said Lenny Woodson, administrator for the Colorado Department of Corrections’ Sex Offender Treatment and Monitoring Program. “And we’ve made it clear in our standards that it isn’t to be used in isolation. We’re using as many avenues as possible to make treatment decisions.”

But a bipartisan cross-section of legislators and a retired judge have joined with offenders and their families to question the validity of the tests.  They contend too much weight is placed on what they argue is little more than junk science.  Flawed polygraphs can complicate efforts for low-risk sex offenders to get paroled and lead to new restrictions for parolees or probationers, critics say.  Failure to take the tests can lead to sanctions, including eventual revocation to prison.

Studies show that up to 70 percent of U.S. states polygraph sex offenders, but experts have testified that Colorado uses the tests aggressively, even polygraphing juvenile offenders for consensual sexting.  Critics contend an entrenched and profitable cottage industry, rife with conflicts of interests, has grown up around polygraphing sex offenders in Colorado.  “To me, there is no question that it borders on a scam,” said Senate President pro tem Jerry Sonnenberg, R-Sterling.  “We incentivize the people who give the polygraph tests to have inconclusive results so an offender has to go back and pay for another one on a more regular basis.”

Colorado’s polygraphing is “grossly excessive,” said Deirdre D’Orazio, a psychologist who serves as an expert on a high-risk sex-offender task force in California, during testimony in federal court in Denver in 2015.  D’Orazio led a team of consultants that issued a report for the Colorado department of corrections in 2013 blasting how it manages sex offenders and how it uses polygraphs.  She returned to the state to testify for Howard Alt, then 51, who a decade earlier was convicted for having sex with a 15-year-old girl and possessing nude computer images of teenage girls.

After his release from prison, Alt had taken 28 polygraphs, often with competing results.  The treatment provider that tested Alt had a “fiduciary incentive conflict” to fail him, D’Orazio said.  The firm was “making money on outcomes that are not in the offender client’s favor” by requiring him to pay for more tests and treatment, she said.

A deceptive finding on one sex-history polygraph had prompted supervision officials to bar Alt, a former software developer, from accepting a job that would raise his salary from $60,000 to $200,000 annually.  Months later, the polygrapher found Alt to be truthful on the same questions even though he did not change his answers, showing the sanction against him was unwarranted, D’Orazio said.  “It is not a scientifically valid procedure,” D’Orazio testified.  “It has a high false-positive rate, which means misclassifying people who are telling the truth as being deceitful. So there is a lot of controversy about using the polygraph in high-stakes decisions.”...

The state of Colorado, relying on court fees paid by those convicted of sex crimes, picks up the tab of the polygraphs for those who are in prison and also often for the indigent who are out on parole or probation.  But when the state fund that pays for the tests runs out of money, parolees and probationers who don’t have the money to pay for them risk running afoul of their supervision requirements.  Revocation to prison can occur for refusing to take the polygraphs, defense lawyers say....

In addition to the legislators, C. Dennis Maes, former chief judge of Pueblo District Court, has criticized the use of polygraphs in Colorado.  He has written to the chief judges of all judicial districts in the state and to Nancy Rice, chief justice of the Colorado Supreme Court, urging a halt to polygraphing sex offenders, pointing out the results can’t be admitted as evidence during civil or criminal trails.  After his retirement, he represented a sex offender on probation, and was shocked when the results of his polygraph were admitted as evidence during a court hearing.

“The Constitution applies to everyone,” Maes said.  “It doesn’t apply to everyone except sex offenders.  The Constitution was designed to protect those that might be the most easily attacked by the government, even sex offenders.  You don’t see polygraphs in any other area of the law.  You can be the most prolific bad-check writer ever and you don’t have to take them, but you do if you’re a sex offender.”

The Denver Post has this companion article headlined "Professional polygrapher holds position of power on state’s sex-offender treatment board: Jeff Jenks’ firm will receive $1.9 million to test sex offenders in Colorado prisons as he sits on the Colorado Sex Offender Management Board"

May 14, 2017 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (7)

Friday, May 05, 2017

"Mass Monitoring"

The title of this post is the title of this notable new paper authored by Avlana Eisenberg and now available via SSRN. Here is the abstract:

Business is booming for criminal justice monitoring technology: these days “ankle bracelet” refers as often to an electronic monitor as to jewelry.  Indeed, the explosive growth of electronic monitoring (“EM”) for criminal justice purposes — a phenomenon which this Article terms “mass monitoring” — is among the most overlooked features of the otherwise well-known phenomenon of mass incarceration.

This Article addresses the fundamental question of whether EM is punishment.  It finds that the origins and history of EM as a progressive alternative to incarceration — a punitive sanction — support characterization of EM as punitive, and that EM comports with the goals of dominant punishment theories.  Yet new uses of EM have complicated this narrative.  The Article draws attention to the expansion of EM both as a substitute for incarceration and as an added sanction, highlighting the analytic importance of what it terms the “substitution/addition distinction.”  The Article argues that, as a punitive sanction, EM can be justified when used as a substitute for incarceration, but that its use as an added sanction may result in excessive punishment and raises significant constitutional and policy concerns.

The Article’s findings have crucial implications for hotly contested questions over whether monitoring can be imposed retroactively and whether pretrial house arrest plus monitoring (which resembles the post-conviction use of monitoring as a substitute for incarceration) should count toward time served.  The Article provides a framework for addressing these questions and, at the same time, offers practical policy guidance that will enable courts and policymakers to ensure that EM programs are genuinely a cost-saving, progressive substitute for incarceration rather than another destructive expansion of government control.

May 5, 2017 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Technocorrections | Permalink | Comments (4)

Tuesday, April 04, 2017

"Criminal Employment Law"

The title of this post is the title of this new article authored by Benjamin Levin available via SSRN. Here is the abstract:

This Article diagnoses a phenomenon, “criminal employment law,” which exists at the nexus of employment law and the criminal justice system. Courts and legislatures discourage employers from hiring workers with criminal records and encourage employers to discipline workers for non-work-related criminal misconduct. In analyzing this phenomenon, my goals are threefold: (1) to examine how criminal employment law works; (2) to hypothesize why criminal employment law has proliferated; and (3) to assess what is wrong with criminal employment law.

This Article examines the ways in which the laws that govern the workplace create incentives for employers not to hire individuals with criminal records and to discharge employees based on non-workplace criminal misconduct. In this way, private employers effectively operate as a branch of the criminal justice system.  But private employers act without constitutional or significant structural checks.  Therefore, I argue that the criminal justice system has altered the nature of employment, while employment law doctrines have altered the nature of criminal punishment.  Employment law scholars should be concerned about the role of criminal records in restricting entry into the formal labor market.  And criminal law scholars should be concerned about how employment restrictions extend criminal punishment, shifting punitive authority and decision-making power to unaccountable private employers.

April 4, 2017 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (5)

Spotlighting new research and realities at the Collateral Consequences Resource Center

As regular readers know, I have made a habit of noting here some posts from the Collateral Consequences Resource Center because the topics covered there are so interesting and get so little attention in the mainstream media (or many other places in the blogosphere).  In addition, I have noted lately an uptick of important empirical research and scholarly analysis of issues related to collateral consequences, and CCRC is effectively covering this important and encouraging new trend.  Against that backdrop, here is a sampling of some recent posts of note from CCRC:

April 4, 2017 in Collateral consequences, Data on sentencing, Reentry and community supervision | Permalink | Comments (0)

Tuesday, March 28, 2017

"Statistical (and Racial) Discrimination, 'Banning the Box', and Crime Rates"

The title of this post is the title of this notable new paper authored by Murat Mungan now available via SSRN.  Here is the abstract:

This article presents law enforcement models where employers engage in statistical discrimination, and the visibility of criminal records can be adjusted through policies (such as ban the box campaigns).  I show that statistical discrimination leads to an increase in crime rates under plausible conditions.  This suggests that societies in which membership to disadvantaged groups is salient (e.g. through greater racial or religious heterogeneity) are, ceteris paribus, likely to have higher crime rates.  Attempting to fix the negative impacts of statistical discrimination through policies that reduce the visibility of criminal records increases crime rates further.  Moreover, such policies cause a greater negative effect for law abiding members of the disadvantaged group than members of the statistically favored group.

March 28, 2017 in Collateral consequences, Reentry and community supervision | Permalink | Comments (1)

Sunday, March 26, 2017

"Recognizing Redemption: Old Criminal Records and Employment Outcomes"

The title of this post is the title of this new essay authored by Peter Leasure and Tia Stevens Andersen available via SSRN. Here is the abstract:

Upon completion of their sentences and when attempting to ‘reenter’ society, offenders face large barriers, often referred to as the ‘collateral consequences’ of conviction.  One of the largest barriers, given the stigma of a criminal record, is finding employment.  The problem primarily arises because of increases in the use of background checks by employers and the use of a criminal record to eliminate candidates.  Such a practice is partly understandable for employers, as a recent conviction is one of the best predictors of future criminal activity.

However, recent evidence suggests that an offender’s risk of reoffending decreases over time and can eventually come “close enough” to that of one who has never offended, even becoming lower than that risk for a random person within the general population.  However, no study has examined whether such knowledge has reached potential employers.  Our study sought to determine whether knowledge such as this has reached potential employers and asked whether there are employment outcome differences for hypothetical applicants with older criminal records.  Results indicate that those possessing older criminal records still face barriers when seeking employment.  Based on these findings, we present policy considerations.

March 26, 2017 in Collateral consequences, Reentry and community supervision, Who Sentences? | Permalink | Comments (13)

Friday, March 24, 2017

Thanks to voter approval of Prop 57, "California prisons to free 9,500 inmates in 4 years" based on new early-release credit rules

The middle title of this post quotes the title of this new AP article and provides a bit of context.  For more explanation, here is more from the AP article:

Corrections officials adopted new criminal sentencing rules on Friday that aim to trim California’s prison population by 9,500 inmates after four years.

They include steps like reducing inmates’ sentences up to six months for earning a college degree and by up to a month each year for participating in self-help programs such as alcohol and substance abuse support groups and counseling, anger management, life skills, victim awareness, restorative justice, and parenting classes. Virtually any inmate except those on death row or those serving life-without-parole sentences is eligible to earn the credits and lower the sentence.

It’s the latest step in a years-long drive to dramatically lower the state’s prison population in response to federal court orders stemming from lawsuits by prison advocates and pressure to turn away from mass incarceration.

The changes follow voters’ approval of Proposition 57 in November. The initiative lets certain felons seek parole more quickly and gave corrections officials broad discretion to grant early release credits. “I think that it’s a monumental change for the organization and I think across the state, across the nation, I don’t think that anybody has altered how they are incarcerating offenders as much as what Prop 57 does,” Corrections Secretary Scott Kernan told The Associated Press.  The goal, he said, is to encourage inmates to start “doing something with their incarceration and not just sitting on their bunks.”

The changes in parole eligibility will take effect April 12 if they win initial approval from state regulators, with final approval by October after a public comment period. The earlier release credits and earlier parole consideration will be phased in starting May 1 while the public review is underway.

Police and particularly prosecutors fought the ballot initiative, arguing that it will release dangerous offenders sometimes years earlier than called for in their sentences. It also will put convicts more quickly into county probation systems that already are stretched. Kernan said he took some of their objections into account, for instance by barring sex offenders and third-strike career criminals from seeking earlier parole.

The changes are projected to eventually lower California’s prison population by about 7 percent and keep the state below the federal court-ordered population of about 116,000 inmates in the 34 adult prisons. The changes also will let the state phase out a long-running program that currently keeps nearly 4,300 inmates in private prisons in other states.

[T]he bulk of the reductions would come from steps like doubling the credits inmates receive for completing education and training programs, to a maximum of three months in any 12-month period, and expanding them to include violent offenders. Inmates would also start getting expanded credits for not violating prison rules starting May 1. That would typically reduce a violent offender’s sentence by 19 days each year, Kernan said, calling the reduction “relatively modest.”

March 24, 2017 in Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9)

Wednesday, March 22, 2017

Unanimous New Jersey Supreme Court rejects "categorical Internet blackout" for sex offender

As reported in this local article, headlined "N.J. Supreme Court tosses 'total' internet ban for sex offender," the top court in the Garden State issued a significant ruling yesterday concerning on-line restrictions on sex offenders. Here are the very basics from the press report:

New Jersey's highest court on Tuesday threw out a state-sanctioned ban on internet use for a convicted sex offender, finding it was an arbitrary infringement on the man's rights.

In a unanimous decision, the state Supreme Court found the state Parole Board had improperly issued a "near-total" internet ban for the man, identified only by the initials J.I., who was subject to lifetime supervision after pleading guilty to charges he sexually abused his three daughters.

Calling internet access a "basic need" of modern life, the justices ruled that state authorities could only revoke it after holding a formal hearing to determine if there was a legitimate public safety reason to do so.

The lengthy ruling in J.I. v. New Jersey State Parole Board, No. A-29-15 (N.J. March 21, 2017) (available here), gets started this way:

Today, the Internet plays an essential role in the daily lives of most people -- in how they communicate, access news, purchase goods, seek employment, perform their jobs, enjoy entertainment, and function in countless other ways.

Sex offenders on community supervision for life (CSL) may be subject to restrictive Internet conditions at the discretion of the New Jersey State Parole Board (the Parole Board), provided the conditions promote public safety and/or the rehabilitation of the offender.  In this case, the first issue is whether a total Internet ban imposed on a CSL offender was unnecessarily overbroad and oppressive and whether it served any rational penological purpose.  The second issue is whether the Parole Board improperly denied J.I. a hearing to challenge the Internet restrictions that he claims were arbitrarily imposed.

J.I. is a sex offender subject to community supervision for life. After his release from confinement, J.I. was allowed full access to the Internet, with one exception: he could not visit an Internet social networking site without the approval of his District Parole Supervisor.

After J.I. had served thirteen months on community supervision for life without incident, his District Parole Supervisor totally banned his access to the Internet except for employment purposes.  The District Parole Supervisor justified the ban based not on J.I.’s conduct while on community supervision for life, but rather on his conduct years earlier -- the accessing of pornography sites and the possession of pornography -- that led to a violation of his parole.  A Parole Board panel affirmed, apparently with no input from J.I.

Following imposition of that near-total Internet ban, J.I. accessed several benign websites, such as those of his church and therapist, after repeated warnings not to do so. As a result, the parole authorities completely banned J.I. from possessing any Internet-capable device.  The Parole Board upheld that determination and denied J.I. a hearing.  The Appellate Division affirmed.

We now reverse and remand to the Parole Board. Conditions imposed on CSL offenders -- like those imposed on regular parolees -- are intended to promote public safety, reduce recidivism, and foster the offender’s reintegration into society.  Arbitrarily imposed Internet restrictions that are not tethered to those objectives are inconsistent with the administrative regime governing CSL offenders.  We agree with the position taken by federal courts that Internet conditions attached to the supervised release of sex offenders should not be more restrictive than necessary.

The sheer breadth of the initial near-total Internet ban, after J.I.’s thirteen months of good behavior, cannot be easily justified, particularly given the availability of less restrictive options, including software monitoring devices and unannounced inspections of J.I.’s computer.  After the imposition of the total ban for J.I.’s Internet violations, J.I. should have been granted a hearing before the Parole Board to allow him to challenge the categorical Internet blackout.  The complete denial of access to the Internet implicates a liberty interest, which in turn triggers due process concerns.

Accordingly, we remand to the full Parole Board for a hearing consistent with this opinion.  The Board must determine whether the current total computer and Internet ban imposed on J.I. serves any public-safety, rehabilitative, or other penological goal.

March 22, 2017 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (2)

Friday, March 10, 2017

Collateral Consequences Resource Center provides updated 50-state accounting of judicial sealing and expungement laws

As detailed via this new post at the Collateral Consequences Resource Center, titled "Restrictions on access to criminal records: A national survey," the folks at CCRC have recently revised and brought up to date the 50-state chart comparing laws on judicial sealing and expungement." Here is more background about this important work for the CCRC posting:

This chart provides an overview of the national landscape of laws authorizing courts to restrict public access to criminal records. The chart summaries are illustrated by color-coded maps, and explained in greater detail in the state “profiles” of relief mechanisms that have been part of the Restoration of Rights Resource since that project began in 2004. We hope this research will provide a useful tool for civil and criminal practitioners, policy advocates, and government officials....

A criminal record severely restricts access to many opportunities and benefits that can be indispensable to leading a law-abiding life.  Unwarranted discrimination based on criminal record was recognized as an urgent public policy problem by President Obama when he established the National Clean Slate Clearinghouse.  In the past decade, as the collateral consequences of conviction have increased in severity, state legislatures across the country have been actively exploring ways to set reasonable limits on the use of criminal records for noncriminal justice purposes, consistent with public safety.  One of the most popular measures involves restricting public access to criminal records through measures most frequently described as “expungement” or “sealing.”  Our recent report on “second chance” legislation identified 27 states that just since 2013 have given their courts at least some authority to limit access to records.

At the same time, however, judicial authority to close the record of concluded criminal cases remains quite limited, with only a dozen states authorizing their courts to restrict public access to a substantial number of felony convictions.  The fact that nine of these 12 states have had broad sealing schemes in place for many years underscores how difficult it is to make much legislative progress in a risk-averse environment where criminal background checking has become big business.

March 10, 2017 in Collateral consequences, Reentry and community supervision | Permalink | Comments (0)

Thursday, March 09, 2017

"Shaming the Constitution: The Detrimental Results of Sexual Violent Predator Legislation"

2378_regThe title of this post is the title of this notable new book authored by Michael Perlin and Heather Ellis Cucolo which provides a fitting follow-up to prior posts in this space this week concerning problems with sex offender recidivism data and expanding use of crime registries. Via the publisher's website, here is a summary of the book's coverage:

Convicted sexually violent predators are more vilified, more subject to media misrepresentation, and more likely to be denied basic human rights than any other population. Shaming the Constitution authors Michael Perlin and Heather Cucolo question the intentions of sex offender laws, offering new approaches to this most complex (and controversial) area of law and social policy.

The authors assert that sex offender laws and policies are unconstitutional and counter-productive. The legislation largely fails to add to public safety-even ruining lives for what are, in some cases, trivial infractions. Shaming the Constitution draws on law, behavioral sciences, and other disciplines to show that many of the "solutions" to penalizing sexually violent predators are "wrong," as they create the most repressive and useless laws.

In addition to tracing the history of sex offender laws, the authors address the case of Jesse Timmendequas, whose crime begat "Megan's Law;" the media's role in creating a "moral panic;" recidivism statistics and treatments, as well as international human rights laws. Ultimately, they call attention to the flaws in the system so we can find solutions that contribute to public safety in ways that do not mock Constitutional principles.

March 9, 2017 in Collateral consequences, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (21)

"The Effectiveness of Certificates of Relief as Collateral Consequence Relief Mechanisms: An Experimental Study"

The title of this post is the title of this paper recently posted to SSRN authored by Peter Leasure and Tia Stevens Andersen. Here is the abstract:

Obtaining employment is difficult for ex-offenders due to the stigma of having a criminal record.  In recognition of this difficulty, some state legislatures have created certificates of relief (also known as certificates of recovery), which lift occupational licensing restrictions, limit employer liability for negligent hiring claims, and aim to ensure that employment decisions about certificate holders are made on a case-by-case basis.

The current study, which examines Ohio’s program for certificates of relief, presents the results of the first empirical test of the effectiveness of such certificates.  This test indicates that having a certificate of relief 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 nearly equally likely to receive an interview invitation or job offer.  These promising preliminary results suggest certificates of relief may be an effective avenue for lessening the stigma of a criminal record for ex-offenders seeking employment.

March 9, 2017 in Collateral consequences, Procedure and Proof at Sentencing, Reentry and community supervision | Permalink | Comments (1)

Wednesday, March 08, 2017

"Public Crime Registries Rarely Work, So Why Do They Continue to Grow?"

The question in the title of this post is the headline of this new Pacific Standard commentary authored by Emmanuel Felton. Here are excerpts: 

[T]he idea of making information about offenders public has proven immensely popular. A 2005 Gallup poll showed that virtually all Americans  —  94 percent  — supported public sex offender registries and about two-thirds of those surveyed said they weren’t even somewhat concerned about how the public nature of registries affected those forced to sign up. With the Internet providing states with a cheap and easy way to get information into the hands of citizens, lawmakers soon found registries to be a relatively inexpensive solution to complex problems, says Amanda Agan, a Rutgers University professor who studies the economics of crime.

“These policies were well intentioned and they sounded like they might work. And on top of that they are relatively low cost,” Agan says. “But now we have all of this evidence that they just don’t work, but the problem is it’s very difficult to start pulling back. There would be a public outcry.”

The Murderer and Violent Offender Against Youth Registry started off as a fix for a legislature-made problem. In the mid-1990s, at the height of the tough-on-crime movement, Illinois added a host of offenses against children to their sex offender rolls, including first-degree murder, kidnapping, and child abduction, regardless of whether the crime involved a sex offense. Responding to concerns that it was unfair to include those offenders  —  take, for example, the case of a 13-year-old girl who stabbed her older brother with a kitchen knife after a fight over a shower cap  —  on the sex crime list, the state created this new violent offender registry. That created a registry for people convicted of a set of violent crimes against children. That list was later expanded to include murderers like Armstrong, whose crimes didn’t involve children, when, in 2011, state lawmakers passed Andrea’s Law, named for a college student strangled to death by her ex-boyfriend.

While Illinois lawmakers may be the most zealous employers of public registries  —  the state also maintains an online list of those convicted of making methamphetamine  —  the state is far from alone. Oklahoma also has a violent crime registry similar to Illinois’ and Kansas has a meth registry like Illinois’. Indiana, Kansas, and Montana still have combined sex and violent offender registries. Florida, on the other hand, makes folks convicted of three violent felonies sign up for a public registry. Tennessee also had a meth registry, before expanding it into a much more encompassing drug offender registry. And among the more original uses, Tennessee also has an animal abuser registry and Utah recently launched a registry for people convicted of certain white-collar crimes.

While there isn’t much research about the effectiveness of newer crime registries like those for murderers, there has been a lot of research into sex offender registries. Jill Levenson, a professor of social work at Barry University, says that research has been conclusive: those registries simply haven’t reduced sex crimes. She says that’s because they obscure the real threat to children, being abused by someone close to them, and greatly overemphasize the incredibly rare occurrences of children being abducted by people they don’t know.

“Stranger abductions of children happen just 115 times a year in this country,” says Levenson, who studies the effectiveness of policies that aim to reduce sexual violence. “While there’s no question that that’s 115 too many, there are 80 million children in this country. The problem with sex offender registries is they obscure the real threat — over 90 percent of children who are sexually abused are abused by people they know.”

St. Louis University Law School professor Molly Wilson says the concept of cognitive availability helps explain why threats like stranger danger remain so prominent in the making of our criminal codes. Cognitive availability describes a logical fallacy where decision-makers tend to overemphasize the importance of examples that quickly come to mind. That leads people to overestimate threats with really salacious details, Wilson says. “When you ask someone to estimate how serious a threat is, they search their minds,” says Wilson, who also holds a doctorate degree in psychology. “What they come to first is what is cognitively available, and that’s these really vivid examples that from an empirical standpoint are pretty rare. The human mind is designed to think of the sensory cases that imprint details — an image of the bicycle that a girl was riding sticking out of the bushes.”

Cognitive availability is a particularly compelling explanation for why many registries quickly expanded to murderers despite the fact that just 1 percent of murderers kill again. Similarly, just 6 percent of people convicted of rape or sexual assault repeated in the five-year follow-up period covered by a recent Bureau of Justice Statistics report. That’s compared to a 13 percent same-crime recidivism rate for robbers and a 34 percent rate for those convicted of assault. Despite repeated attempts by researchers to link lower sex offender recidivism rates with the passage of registration laws, there’s been no conclusive evidence supporting that hypothesis. In fact, there is some evidence that these laws actually increase recidivism as they effectively act as anti-re-entry programs.

Arthur Lurigio, a clinical psychologist and a professor of criminal justice and psychology at Loyola University Chicago, says the rise of registries underscores a central failure of America’s criminal justice system: “ We are failing to recognize the possibility of human change.”...

Wayne Logan — whose 2009 book, Knowledge as Power: Criminal Registration and Community Notification Laws in America, charts the rise of crime registries over 75 years — says there has been some relaxing of registration rules for sex offenders in recent years. He points to California’s public registry, which no longer includes those caught soliciting prostitutes and so-called Romeo and Juliet offenses—those are the cases where there’s consensual sex between teenagers, one of whom is a minor. “You see some unwinding,” says Logan, a professor of law at Florida State University. “But the overall trend is expansion. It’s a very flexible technology, it can work for arsonists or meth makers or white-collar criminals. It’s social control on the cheap.”

March 8, 2017 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (3)

Tuesday, March 07, 2017

Reviewing the ugly backstory of SCOTUS dicta on sex offender recidivism

Today's New York Times has this intriguing new Sidebar article by SCOTUS reporter Adam Liptak under the headline "Did the Supreme Court Base a Ruling on a Myth?".  Here are excerpts:

Last week at the Supreme Court, a lawyer made what seemed like an unremarkable point about registered sex offenders. “This court has recognized that they have a high rate of recidivism and are very likely to do this again,” said the lawyer, Robert C. Montgomery, who was defending a North Carolina statute that bars sex offenders from using Facebook, Twitter and other social media services.

The Supreme Court has indeed said the risk that sex offenders will commit new crimes is “frightening and high.” That phrase, in a 2003 decision upholding Alaska’s sex offender registration law, has been exceptionally influential. It has appeared in more than 100 lower-court opinions, and it has helped justify laws that effectively banish registered sex offenders from many aspects of everyday life.

But there is vanishingly little evidence for the Supreme Court’s assertion that convicted sex offenders commit new offenses at very high rates. The story behind the notion, it turns out, starts with a throwaway line in a glossy magazine.

Justice Anthony M. Kennedy’s majority opinion in the 2003 case, Smith v. Doe, cited one of his own earlier opinions for support, and that opinion did include a startling statistic. “The rate of recidivism of untreated offenders has been estimated to be as high as 80 percent,” Justice Kennedy wrote in the earlier case, McKune v. Lile.

He cited what seemed to be a good source for the statistic: “A Practitioner’s Guide to Treating the Incarcerated Male Sex Offender,” published in 1988 by the Justice Department. The guide, a compendium of papers from outside experts, is 231 pages long, and it contains lots of statistics on sex offender recidivism rates. Many of them were in the single digits, some a little higher. Only one source claimed an 80 percent rate, and the guide itself said that number might be exaggerated.

The source of the 80 percent figure was a 1986 article in Psychology Today, a magazine written for a general audience. The article was about a counseling program run by the authors, and they made a statement that could be good for business. “Most untreated sex offenders released from prison go on to commit more offenses — indeed, as many as 80 percent do,” the article said, without evidence or elaboration.

That’s it. The basis for much of American jurisprudence and legislation about sex offenders was rooted in an offhand and unsupported statement in a mass-market magazine, not a peer-reviewed journal....

A 2014 Justice Department report found ... that sex offenders generally have low overall recidivism rates for crimes. But they are more likely to commit additional sex offenses than other criminals. In the three years after release from prison, 1.3 percent of people convicted of other kinds of crimes were arrested for sex offenses, compared to 5.3 percent of sex offenders. Those findings are broadly consistent with seven reports in various states, which found that people convicted of sex crimes committed new sex offenses at rates of 1.7 percent to 5.7 percent in time periods ranging from three to 10 years....

Lower courts generally accept what the Supreme Court says. That is true not only about the law but also about facts subject to independent verification.  Last year, though, the federal appeals court in Cincinnati gently suggested that the Supreme Court had taken a wrong turn in its 2003 decision in Smith v. Doe. Judge Alice M. Batchelder, writing for a unanimous three-judge panel, described “the significant doubt cast by recent empirical studies on the pronouncement in Smith that ‘the risk of recidivism posed by sex offenders is “frightening and high.’”  The appeals court struck down a particularly strict Michigan sex-offender law as a violation of the Constitution’s ex post facto clause, saying it retroactively imposed punishment on people who had committed offenses before the law was enacted.  

The state has asked the Supreme Court to consider the case, Does v. Snyder, No. 16-768. The first paragraph of its petition says that the risk of recidivism “remains ‘frightening and high.’”  The constitutional question in the case is interesting and substantial.  And hearing the case would allow the court to consider more fully its casual assertion that sex offenders are especially dangerous.

March 7, 2017 in Procedure and Proof at Sentencing, Reentry and community supervision, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (16)

Tuesday, February 21, 2017

US Sentencing Commission releases big new report on "Recidivism Among Federal Drug Trafficking Offenders"

The US Sentencing Commission today released the second major report emerging from a huge assessment of federal offenders released from prison in 2005.  This USSC webpage provides this background and highlights from this 149-page data-rich report:

This report, Recidivism Among Federal Drug Trafficking Offenders examines a group of 10,888 federal drug trafficking offenders who were released in calendar year 2005. These 10,888 offenders, who were all U.S. citizens, represent 42.8 percent of the 25,431 federal offenders who were released in calendar year 2005 and analyzed in the Commission’s 2016 report, Recidivism Among Federal Offenders: A Comprehensive Overview. In the future, the Commission will release additional publications discussing specific topics concerning recidivism of federal offenders.

Chapter One summarizes the group studied in this report as well as its key findings. It also explains the methodology used in the report. Chapter Two provides an overview of the statutes and guidelines most often applicable to federal drug trafficking offenses, and reports the demographics and recidivist behavior of drug trafficking offenders as a whole. Chapters Three through Seven provide detailed information about offenders as classified by the drug types studied in this report: powder cocaine, crack cocaine, heroin, marijuana, and methamphetamine. Chapter Eight concludes by reviewing the report’s findings.

Some highlights of the Commission’s study are that:

  • Over the eight-year follow-up period, one-half (50.0%) of federal drug trafficking offenders were rearrested (see bar chart). Of those drug trafficking offenders who recidivated, the median time to rearrest was 25 months.

  • In general, there were few clear distinctions among the five drug types studied. One exception is that crack cocaine offenders recidivated at the highest rate (60.8%) of any drug type. Recidivism rates for other drug types were between 43.8% and 50.0% (see table).

  • Nearly one-fourth (23.8%) of drug trafficking offenders who recidivated had assault as their most serious new charge followed by drug trafficking and public order offenses.

  • Federal drug trafficking offenders had a substantially lower recidivism rate compared to a cohort of state drug offenders released into the community in 2005 and tracked by the Bureau of Justice Statistics. Over two-thirds (76.9%) of state drug offenders released from state prison were rearrested within five years, compared to 41.9% of federal drug trafficking offenders released from prison over the same five-year period.

  • A federal drug trafficking offender’s Criminal History Category was closely associated with the likelihood of recidivism. But note that career offenders and armed career criminals recidivated at a rate lower than drug trafficking offenders classified in Criminal History Categories IV, V, and VI. (Related data and policy recommendations are discussed in the Commission's 2016 Report to the Congress on Career Offender Sentencing Enhancements.)

  • A federal drug trafficking offender’s age at time of release into the community was also closely associated with likelihood of recidivism.

February 21, 2017 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (2)

Monday, February 06, 2017

Idaho judge includes celibacy for teen sex offender on intensive probation

As reported in this local article, after "sentencing a 19-year-old Twin Falls man to a year-long therapeutic prison program on a rape charge last week, a judge added an unusual caveat should the teen successfully complete the program and be placed on probation." Specifically:

“If you’re ever on probation with this court, a condition of that will be you will not have sexual relations with anyone except who you’re married to, if you’re married,” 5th District Judge Randy Stoker said.

The judge’s unusual proclamation was made during the sentencing of Cody Duane Scott Herrera, who pleaded guilty to the statutory rape of a 14-year-old girl in March 2015. Now, legal scholars are questioning whether the judge could hold Herrara to his warning.

Stoker said the condition would be put in place in part because Herrera told presentence investigators he’s had 34 sexual partners. “I have never seen that level of sexual activity by a 19-year-old,” Stoker said. Prosecutors also revealed Herrera, who could face more sex-related charges involving an underage girl, has had fantasies about a 13-year-old girl and watches pornography depicting rape.

The Idaho Department of Health and Welfare “did not designate Mr. Herrera as a sexual predator,” Stoker said during his sentencing, “though there seems to be an argument that could be made for that.”

The victim’s mother, making a victim-impact statement, certainly believed Herrera was a predator. “It was his intent from the beginning to take what he wanted from my 14-year-old child — her virginity,” the victim’s mother told the court. “And he stayed around until he got it from her. Cody will never understand what he has done to our family. Cody robbed her of her innocence. He destroyed the child left in her. This can never be returned.”

Stoker sentenced Herrera to an underlying prison sentence of five to 15 years, but suspended the sentence in favor of the year-long rider program. If Herrera successfully completes the program, he’ll be released to probation, and, according to Stoker, a life of celibacy unless he weds.

But that probation condition might be illegal or unenforceable, according to Shaakirrah R. Sanders, an associate professor at the University of Idaho College of Law. “I would suspect (a judge can’t do that),” Sanders said. “I think it infringes on his constitutional rights.” While judges “have quite a bit of discretion” in creating special probation terms, Sanders said, they can’t violate the federal or state constitution. “I think if he appealed, he would win,” Sanders said.

Twin Falls County Prosecutor Grant Loebs said he did think Stoker would be able to impose the probation condition.  “The judge has the ability to tell people to do or not do all sorts of things that are (otherwise) legal and constitutional,” Loebs said, pointing out that abstaining from alcohol is a condition of most probations.

“A judge’s purpose is to keep them from committing another offense,” Loebs said. “A judge has right to order things to keep him from doing that … I don’t think this goes beyond what a judge is allowed to do.”

I have personally always viewed probationary conditions that prohibit alcohol more than a bit suspect, but I know that they are regularly imposed and have often been upheld when sufficiently linked to the offense of conviction. With that background, I think the prosecutor here has a reasonable basis for arguing that this celibacy condition could be upheld if challenged. Then again, even though sex and alcohol often are linked, some significant distinctions might be made in this context were there to be legal appeals by the defendant here.

February 6, 2017 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5)

Tuesday, January 24, 2017

Two Governors dealing with prison overcrowding problems in distinct ways

I covered some midwest prison stories here yesterday, and today brings these interesting state prison reform stories from the south and west:

From Alabama here, "Gov. Robert Bentley says new prisons top priority this year"

As of September, Alabama had about 23,000 prisoners in facilities designed for about 13,000, an occupancy rate of about 175 percent. Overcrowding is not a new problem but makes it harder to deal with other pressing concerns.

In October, the U.S. Justice Department announced it was investigating the state's prisons. U.S. District Judge Myron Thompson is conducting a trial on claims that mental health care for inmates fails to meet constitutional standards. A trial on similar claims about medical care is expected later this year.

Department of Corrections Commissioner Jeff Dunn told lawmakers in November that prison violence was rising and the number of corrections officers had dropped by 20 percent in five years. Bentley and Dunn say the plan to build four new prisons, called the Alabama Prison Transformation Initiative, would be the most cost effective way to alleviate the overcrowding, under-staffing and other problems.

From Nevada here, "Sandoval wants to streamline parole process to fight prison overcrowding"

Nevada Gov. Brian Sandoval is pursuing creative solutions to a potential prison overcrowding challenge that could see capacity exceeded by 700 inmates by the end of the next budget without prompt action. “Our goal is to not construct a new prison,” Mike Willden, chief of staff to Sandoval, said in a budget briefing last week.

Prison construction is not cheap, and it has to be paid with state general funds. In 2007, the Legislature approved $300 million for prison construction projects. Sandoval’s solution rests primarily with the Division of Parole and Probation and the Parole Commission, which will be given new resources to speed up parole for as many as 300 to 400 eligible inmates....

At the Prison Board meeting, it was reported that one-third of paroled inmates being returned to prison were there for parole violations only. Crowding is a problem within the prison system.

Corrections Director James Dzurenda said at the meeting that 13,742 inmates were housed in the system — well over capacity if only regular housing beds were used. But the department has converted large areas of prisons, created for other purposes, into dormitory-style beds.

In addition to seeking to expedite paroles, the Department of Corrections has a capital construction project worth about $6 million to add 200 beds at the Southern Desert Correctional Center. A third element of the plan, if needed, sets aside about $12 million to temporarily house some Nevada inmates out-of-state while the parole efforts get up to speed, Willden said.

State lawmakers will get a first look at the corrections and parole budget proposals at a hearing Jan. 31, a week ahead of the start of the 2017 session on Feb. 6. Sandoval said in his budget that his goal is to reduce prison inmate recidivism by 10 percent through education programs and intervention services and resources, particularly in the areas of behavioral health, drug addiction and workforce training.

January 24, 2017 in Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Friday, January 06, 2017

An optimistic accounting of many areas for bipartisan federal criminal justice reform ... and good lines of inquiry for AG nominee Jeff Sessions

The week brought this extended commentary by Mark Holden at The Hill under the headline "Criminal justice reform is ripe for bipartisan achievement." I recommend the piece in full, and here are highlights of the reforms urged (with Holden's accounting of "reason it could pass" left out so readers will be encouraged to click through):

Criminal justice reform has been one of the few policy areas where Republicans and Democrats have forged bipartisan consensus.  They have come close to passing reform the past two years, and now it’s up to GOP lawmakers to pick up where they left off. Leaders as diverse as Sens. Cory Booker (D-N.J.) and Mike Lee (R-Utah) agree that the current system is broken....

That’s why it’s critical that leaders in Congress take up criminal justice reform. If they focus on six key areas of reform, there’s a real possibility that legislation could pass in both the House and Senate, even with the Senate’s 60-vote threshold, a bar not easily achieved on other issues.

Here are the six areas of reform — and the reasons they have a viable path to becoming law.

First, we need to reform the grand jury process and rein in prosecutorial overreach. As Judge Kozinski has advocated, lawmakers should require open file discovery, so prosecutors hand over all evidence favorable to an accused person, and also establish truly independent prosecutorial review units to investigate abuses....

Second, we must protect every citizens’ Sixth Amendment rights.  When it comes to federal cases, Congress should ensure that all individuals — regardless of income level – have an adequate chance to retain counsel before they appear in court.  It should also explore the model that some states have moved to, which allows defendants to choose a private lawyer from a list of options, rather than being appointed a lawyer who may not offer a competent defense....

Third, the punishment must fit the crime. Congress should reform mandatory minimums that don’t make sense and increase the use of “safety valves,” which allow judges to use their discretion for non-violent offenses if the offender meets certain requirements. These reforms are particularly important for low-level and non-violent offenders (mostly involving drug crimes), who too often languish in prison for years or even decades at a time at great cost to their families and our society at large.....

Fourth, prisons should leave individuals better off than when they came in. Prison rehabilitation programs have proven to reduce the chance of re-offense and save taxpayer dollars....

Fifth, Congress should give worthy individuals a chance to rejoin society and find fulfillment in their lives.  Lawmakers could start by “banning the box” from federal employment applications so that individuals with a record can be considered for government jobs.  Congress, however, should not mandate that companies “ban the box,” but should allow them to voluntarily do so.  Congress should also clear the record of qualifying youth and non-violent federal offenders; limit solitary confinement for juveniles; and establish effective rehab, educational, and vocational programs so that every individual leaves prison a better person than when they came....

Finally, Congress needs to dramatically scale back the federal criminal code and ensure that all criminal laws have adequate criminal intent, also known as “mens rea.”  The criminal code is a stunning 27,000 pages and comprises an estimated 4,500-6,000 criminal laws — and that doesn’t even include the thousands of additional federal regulations that impose criminal punishments. Many penalize people who had no idea they were committing a crime — missing a basic historical requirement that once existed in the criminal law to protect people from being unfairly prosecuted....

Any one of these reforms would improve our federal justice system — and have a profound effect on our society.  Taken together, they will make communities safer, support our brave law enforcement officers, save taxpayer dollars, and empower individuals in need of a second chance.  That’s precisely why Republicans and Democrats alike will have a difficult time answering to their constituents if they resist such reforms.  Doing so would be a clear political move that overlooks the millions of Americans who would be better off as a result of this bipartisan achievement.

If President-elect Trump and the GOP Congress take up criminal justice reform, it will be a sure sign that they are willing to look beyond party lines in order to improve people’s lives.  That would be good start to putting individuals’ safety and wellbeing ahead of partisan politics.

As the title of this post suggests, I think this piece's accounting of six areas in need of reform would provide a fantastic guide for questions for Senator Jeff Sessions during his hearings to serve as Attorney General. These questions can be softball (e.g., do you believe prison rehabilitation programs can be valuable?) or tough (e.g., do you think there should be more means for federal inmates to earn sentence reduction for participating in prison rehabilitation programs). And I welcome readers to use the comment to make more suggestions for additional soft or tough questions on these or other fronts.

Critically, and as I hope to outline more fully in a post over the weekend, I feel very strongly that those Senators who support federal criminal justice reforms ought to use the Sessions' confirmation hearing to do much more that just simply attack the Senator for long-ago acts or statements claimed to be evidence of racism or insensitivity.  Instead, by crafting astute questions concerning specific area of the federal criminal justice system in need of reform, members of the Judiciary Committee could and should be able to get Sessions to express support for — or at least a lack of opposition to — many of the bipartisan reforms discussed above and widely embraced inside the Beltway in recent years.

January 6, 2017 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (2)

Thursday, January 05, 2017

Lamenting big criminal justice problems in the little state of Delaware

This new local commentary from Delaware authored by Jack Guerin, headlined "A perfect storm of failure in criminal justice," tell a pretty disconcerting story about the First State. Here is how the commentary gets started:

By every conceivable measure, Delaware’s criminal justice system is a failure. The Wall Street Journal recently reported that “Delaware has one of the highest violent crime rates in the country.”  The article found that our state ranked third highest among all states in robberies, and that the rate of crime in Wilmington is “one of the highest of any large city in the country.”

In November, the Delaware Criminal Justice Council issued its annual report on recidivism in Delaware, finding that “by the end of three years, about 76 percent of offenders in each cohort had been rearrested for a serious offense.”  Most recidivism events occurred in the first two years after release.

In December, the Bureau of Justice Statistics issued a report ranking Delaware’s prison system fifth highest among states in overcrowding at 154.7 percent of design capacity.  A recent report by the Liman Program at the Yale Law School ranked Delaware (tied with Tennessee) as having the third highest percentage of prisoners in solitary confinement in the nation.

With high rates of crime, incarceration, recidivism, overcrowding and solitary confinement, Delaware represents the perfect storm of failure for the “tough on crime” policies initiated more than 40 years ago. Our enormous investment in punitive incarceration is not making us safer.

January 5, 2017 in Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (10)

Prez Obama produces lengthy Harvard Law Review article titled "The President’s Role in Advancing Criminal Justice Reform"

I am intrigued and surprised (and concerned that I will soon be very aggravated) by this lengthy new Harvard Law Review article authored by Barack Obama.  In style (because the article runs 50+ pages with 300+ footnotes), the article hints that Prez Obama is interested in going back to being a law professor after he finishes his current gig.  In substance, the article's introduction provides this overview: 

Part I details the current criminal justice landscape and emphasizes the urgent need for reform.  It would be a tragic mistake to treat criminal justice reform as an agenda limited to certain communities.  All Americans have an interest in living in safe and vibrant neighborhoods, in raising their children in a country of equal treatment and second chances, and in entrusting their liberty to a justice system that remains true to our highest ideals.  We simply cannot afford to spend $80 billion annually on incarceration, to write off the seventy million Americans — that’s almost one in three adults — with some form of criminal record, to release 600,000 inmates each year without a better program to reintegrate them into society, or to ignore the humanity of 2.2 million men and women currently in U.S. jails and prisons and over 11 million men and women moving in and out of U.S. jails every year.  In addition, we cannot deny the legacy of racism that continues to drive inequality in how the justice system is experienced by so many Americans.

Part II shows how the President can drive significant reform at the federal level.  Working with Congress, my Administration helped secure bipartisan sentencing reform legislation reducing the crack-topowder-cocaine disparity.  As an executive branch, we’ve been able to make important changes to federal charging policies and practices, the administration of federal prisons, and federal policies relating to reentry.  And through the presidential pardon power, I have commuted the sentences of more than 1000 prisoners.  Even though there are important structural and prudential constraints on how the President can directly influence criminal enforcement, these changes illustrate that presidential administrations can and do shape the direction of the federal criminal justice system in lasting and profound ways.

Part III details the approaches that Presidents can take to promote change at the state and local level, recognizing that the state and local justice systems tend to have a far broader and more pervasive impact on the lives of most Americans than does the federal justice system.  While the President and the executive branch play a less direct role in these systems, there are still opportunities — as my Administration’s work demonstrates — to advance reform through a combination of federal-local partnerships, the promulgation of best practices, enforcement, federal grant programs, and assembling reform-minded jurisdictions struggling with similar challenges.

Part IV highlights some of the work that remains, focusing on reforms that are supported by broad consensus and could be completed in the near term.  These include passing bipartisan criminal justice reform legislation in Congress, adopting commonsense measures to keep firearms out of the hands of those who are a threat to others or themselves, finding better ways to address the tragic opioid epidemic in this country, implementing critical reforms to forensic science, improving criminal justice data, and using technology to enhance trust in and the effectiveness of law enforcement.

I fear I will be aggravated by this article because it will confirm that Prez Obama (or his staff who helped author this article) truly understands the need to major criminal justice reforms and yet so relatively little got achieved on this front during Prez Obama's eight yesr in office. Also, I know I am already going to be troubled by what is not said in this article because a quick word search reveals that the word "marijuana" is not mentioned once even though state-level marijuana reform is by far the biggest criminal justice reform story of the Obama era (which, to the Obama Administration's credit, was in part fueled by his Justice Department's express hands off policy).

January 5, 2017 in Clemency and Pardons, Prisons and prisoners, Purposes of Punishment and Sentencing, Race, Class, and Gender, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (10)

Monday, December 26, 2016

The latest data from BJS on parole and probation populations throughout the United States

Not long ago, the Bureau of Justice Statistics released this report, titled "Probation and Parole in the United States, 2015," providing the latest official data on offenders under community supervision throughout the nation. Here are some data highlights from the report:

December 26, 2016 in Criminal Sentences Alternatives, Data on sentencing, Detailed sentencing data, Reentry and community supervision | Permalink | Comments (1)

Monday, December 19, 2016

"Mass incarceration and children’s outcomes: Criminal justice policy is education policy"

The title of this post is the title of this intriguing report released late last week by the Economic Policy Institute (EPI).  This press release from EPI provide a kind of report summary under the heading "Mass incarceration contributes significantly to the racial achievement gap," and here is its text:

In Mass incarceration and children’s outcomes, EPI research associates Leila Morsy and Richard Rothstein outline the connections between mass incarceration and racial achievement gaps. There is overwhelming evidence that having an incarcerated parent leads to an array of cognitive and noncognitive outcomes known to affect children’s performance in school. Independent of other social and economic characteristics, children of incarcerated parents are more likely to misbehave in school, drop out of school, develop learning disabilities, experience homelessness, or suffer from conditions such as migraines, asthma, high cholesterol, depression, anxiety, and post-traumatic stress disorder.

“Simply put, criminal justice policy is education policy,” said Morsy. “It is impossible to disentangle the racial achievement gap from the extraordinary rise in incarceration in the United States. Education policymakers, educators, and advocates should pay greater attention to the mass incarceration of young African Americans.”

African American children are six times as likely as white children to have a parent who is or has been incarcerated. One-in-four African American students have a parent who is or has been incarcerated, and as many as one-in-ten have a parent who is currently incarcerated. Because African American children are disproportionately likely to have had an incarcerated parent, the authors argue, the United States’ history of mass incarceration has contributed significantly to gaps in achievement between African American and white students.

“Despite increased national interest in criminal justice reform, President-elect Trump has promised to move in the opposite direction by advocating for a nationwide “stop-and-frisk” program,” said Rothstein. “While the chance of reform on a federal level may have stalled, advocates should look for opportunities for reform at the state and local levels, because many more parents are incarcerated in state than in federal prisons.”

The authors advocate for a number of policies to address this problem by reducing incarceration, including eliminating disparities between minimum sentences for possession of crack versus powder cocaine, repealing mandatory minimum sentences for minor drug offenses and other nonviolent crimes, and increasing funding for social, educational, and employment programs for released offenders.

December 19, 2016 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (1)

Thursday, December 15, 2016

Interesting review of impact of Prop 47 on drug cases and offenders in California

Prop-47-jpgThis lengthy local article takes a remarkable and effective deep dive into the impact and import of California's Prop 47 two years after its passage. The piece carries a lengthy headline that serves as a kind of summary: "Two years after Prop 47, addicts walk free with nowhere to go: In 2014, California Voters Freed About 13,500 Low-Level Offenders From Crowded Prisons and Jails. But Many Ex-inmates Have Traded Incarceration for a Cycle of Homelessness, Drug Abuse and Petty Crime." Here are excerpts:

Two years after it was approved by California voters, Prop 47 has scaled back mass incarceration of drug addicts, but successful reform is woefully incomplete.  Proponents celebrate how the law freed at least 13,500 inmates like Lopez from harsh sentences in crowded prisons and jails, but Prop 47 has done little to help these people restart their lives. Instead, the unprecedented release of inmates has exposed the limits of California’s neglected social service programs: Thousands of addicts and mentally ill people have traded a life behind bars for a churning cycle of homelessness, substance abuse and petty crime.

Prop 47 earmarked millions saved in prison costs for inmate rehabilitation, but not a penny has been spent. Meanwhile, the state’s shortage of treatment programs is more glaring than ever. Expanding rehab would be expensive, but it is still a cheaper, more effective and more humane strategy for addressing addiction than locking drug abusers in prison.

"The problem is, if you don’t actually do anything to change conditions of their lives, they’re going to be back on the streets anyway," said Elliot Currie, a University of California, Irvine criminologist.  "What’s to prevent them from going back to the same old ways when they get out? The answer is nothing."

This alarming lack of support services is one key finding in a landmark investigation by USA TODAY Network-California journalists who spent seven months analyzing the impacts of Prop 47, a sweeping criminal justice reform law that has been debated and demonized but rarely understood. To uncover the ramifications of the law, reporters from four publications — The Desert Sun, The Ventura County Star, The Record Searchlight and The Salinas Californian — filed 65 records requests, scrutinized thousands of pages of public documents and performed over 50 interviews with policymakers, academics, police, district attorneys, public defenders, drug addicts and former felons. Among our findings:

  • California police have dramatically deprioritized drug busts in the wake of Prop 47, arresting and citing about 22,000 fewer people in 2015, a 9.5 percent decrease in the first year since the possession of meth, heroin and cocaine was downgraded to a misdemeanor.

  • Nearly 200,000 felony convictions have been retroactively erased by Prop 47 as of September, according to a first-ever analysis.  Government agencies were not required to track how many convictions were reduced, so journalists gathered public records from 21 counties to calculate a statewide estimate.  Many former felons will be slow to take advantage of their restored rights because they are unaware their convictions have been downgraded.

  • For those who are aware, however, Prop 47 offers an unparalleled chance for better jobs.  Tens of thousands of people no longer have to report felony convictions on job applications, making them drastically more employable than they’ve been in years or decades.

Michael Romano, a Stanford law expert who helped write Prop 47, stressed in a recent interview the law has been "amazingly successful" in its primary goal, which was always to get low-level drug offenders out of California’s crowded, damaging prison system.  But tackling drug addiction and mental illness, which plague so many who were released under the law, is a task that will require investing hundreds of millions of dollars in community treatment programs across the state.   "It is incumbent on local governments to engage this problem," Romano said. "Prop 47 was not a cure-all. It’s not a panacea.  It is one piece in an extraordinarily complicated puzzle — perhaps the most complicated puzzle in our communities."

December 15, 2016 in Drug Offense Sentencing, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (1)

Monday, December 12, 2016

"Trump should reform criminal justice system to foster economic growth"

The title of this post is the headline of this new commentary published in The Hill and authored by Eric Sterling, who is now the executive director of the Criminal Justice Policy Foundation and long ago was counsel to the U.S. House Judiciary Committee. Here are excerpts:

President-elect Trump has expressed a commitment to fostering economic growth and preserving American jobs. In that pursuit, he would be well advised to work towards reforming the criminal justice system. If he embraced a bankruptcy-like program to restore clean criminal records to the millions of Americans who have not been in trouble for many years, he could generate hundreds of thousands jobs – many more than were saved by his intervention and promises to Carrier and United Technologies.

One of the first measures of any economy is employment and job growth. Surprisingly (and unbeknownst to most politicians), our criminal justice system, and its focus on punishment instead of prevention, is one of the biggest drags on our economy because its long-term impact on employment. Once you have a criminal conviction, your ability to get a job is slashed for the rest of your life. If you can get a job, it is likely be “off-the-books.” One Department of Justice study estimated that the average wage loss is 50 percent.

The Bureau of Justice Statistics reported a decade ago that about 68 million Americans have a criminal record. Many of these records are not convictions, but some estimate that about one-third of American working age adults have a criminal conviction.

More than two-thirds of the U.S. gross domestic product is based on the activity of consumers. Cumulatively, the "under-earning" by perhaps one-third of American consumers means lost purchases of everything that every American company makes and sells. Imagine how many Americans could get a mortgage and buy a home if millions of Americans no longer had a criminal record (and imagine how many new Carrier furnaces and air conditioners would be sold and installed).

We have a prison population of 1.8 million (that excludes the jail and juvenile detention populations). In 1970, that number was about .25 million. We know that none of the men and women in prison bought a Ford or Chevrolet last year. We also know that most of those in prison are not there for violent offenses. If they were home – yes, with their liberty restricted, and under supervision – they could work, and many of them would need and could buy a car....

Imagine what the Social Security trust fund would like if millions more American men and women were working, instead of in prison or unemployed or underemployed. Trump should direct his economic team to fully calculate the large-scale economic benefits of smart on crime justice reform.

Trump is proud of his mastery of bankruptcy laws. A criminal record clean slate law is like a bankruptcy. Instead of wiping your financial debts away, such a law would wipe away your criminal record after five or seven years of verifiable good conduct. Bankruptcy, which is in the Constitution, is a useful model for rebuilding the records of formerly convicted persons to re-enter the economy by the millions and help build economic growth for all Americans.

December 12, 2016 in Criminal justice in the Trump Administration, Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (0)

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.

December 5, 2016 in Offender Characteristics, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (4)

Thursday, December 01, 2016

Lame (duck) Obama Administration announces series of "sweeping" reforms at the Federal Bureau of Prisons

Download (5)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.

November 30, 2016 in Drug Offense Sentencing, Reentry and community supervision | Permalink | Comments (3)

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.

November 13, 2016 in Collateral consequences, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (2)