Thursday, April 19, 2018

Lots of notable reporting and commentary as federal prison reform tries to move forward

As reported here last week, there was talk of a federal prison reform bill moving forward in the House of Representatives this week.  This article from The Hill, headlined "Prison reforms groups battle over strategy," highlights that folks on the left may be gumming up the works:

Progressive groups fighting for criminal justice reform are divided over legislation that would allow prisoners to finish their sentences in a halfway house, home confinement or under community supervision if they complete education, job training, drug treatment and other programs while behind bars.  The Leadership Conference for Civil Rights, American Civil Liberties Union and NAACP are among the groups saying that legislation that fails to reduce mandatory minimum sentences isn’t worth their support....

But #cut50, a criminal justice reform advocacy group led by Van Jones, the CNN host and former adviser to President Obama, sees the bill sponsored by Reps. Doug Collins (R-Ga.) and Hakeem Jeffries (D-N.Y.) that’s supported by the White House as an opportunity for positive change, even if it’s incremental. “It’s a bill that’s moving that we decided as a group we’ll hop in and try to make stronger because I think this is going to move with or without us,” said Jessica Sloan Jackson, the national director and co-founder of #cut50.

Instead of shooting it down, the group said it’s lobbying to make the Prison Reform and Redemption Act stronger.  Sloan Jackson acknowledged #cut50 would rather have the Collins–Jeffries bill include language that reduces mandatory minimum sentences, but recognized the criminal justice reform movement has shifted under Trump. She said #cut50 would like to at least win some changes to help people in prison.  “At this point in the process, I think it’s stupid not to even engage in conversations with folks on the right and in the White House just because you aren’t getting everything you want,” she said.

To supporters of broader reforms, however, the bill is a significant step down from legislation that nearly won approval in the last Congress.  That bill, sponsored by Sens. Chuck Grassley (R-Iowa) and Dick Durbin (D-Ill.), has been reintroduced and would eliminate certain mandatory minimum sentences for nonviolent drug offenses. It would also give judges more discretion in sentencing.

The Collins–Jeffries bill authorizes $50 million to be appropriated each year from 2018 to 2022 for the Bureau of Prisons to offer education, work training and other programming, but opponents say that’s not enough.  It also lists 48 different categories of crimes that make prisoners ineligible to earn time in pre-release custody for taking these programs, a provision groups backing broader reforms say excludes too many prisoners who are at a high risk of reoffending and need prison programming the most.  “By cutting out or limiting so many people to get incentives to programming you are missing the point,” said Kevin Ring, the president of Families Against Mandatory Minimums.

In a letter to members of the House Judiciary Committee on Friday, dozens of groups opposed to the bill said it would do little good if it does not reduce mandatory minimum sentences.  “Only front-end reforms have the power to significantly stem the tide of incarceration, reduce the exorbitant cost of the prison system, and give redress to those inside who are serving sentences that are disproportionate to the severity of the offense,” the groups wrote.

The Collins–Jeffries bill has won support from groups on the right that have backed minimum sentencing reforms. “We’re big advocates for commonsense sentencing reform as well and we hope that happens, but we want to get the ball rolling and we think prison reform is a great place to start,” said Mark Holden, Koch Industries’s general counsel and senior vice president....

Advocates say Jeffries and Collins have been negotiating possible changes to their bill, and a markup that had been expected this week was pushed back to provide time for their work.  In a joint statement to The Hill, Jeffries and Collins said their bill will reunite families and help thousands of Americans get back on their feet.

Similar report on these debates and developments are in this Politico article, headlined "Kushner’s prison-reform push hits bipartisan resistance: The son-in-law of President Donald Trump is pressing for a criminal justice bill that’s narrower than a bipartisan one that has stalled in Congress."  And Van Jones has this new CNN commentary that highlights his work and his support for a prison-reform-only bill under the headlined "Prison reform is possible even in the Trump era."

As long-time readers likely know, I am a strong believer that the best should not be the enemy of the good.  In this setting, I am especially eager to urge federal criminal justice reform advocates to secure ASAP any and whatever improvements they can.  I still can recall, though it is now nearly five years ago, when commentators were asserting that "momentum for sentencing reform could be unstoppable."  But from 2013 through 2016, despite a President, Attorneys General and many members of both parties advocating all sorts of federal sentencing reforms, not a single statutory change could make it through Congress to the desk of the President.   Meanwhile, hundreds of thousands of defendants have been (often over) sentenced to federal prison since 2013.  And while there, as Craig DeRoche highlights in a letter in the New York Times, these prisoners are stuck within a prison system that "offers drastically less opportunity for prisoners to transition to community corrections before the end of their sentence compared with almost all states."

Advocates are right to complain that a compromise bill with only prison reform is insufficient, but the fact that broader bills have been pushed and stalled for half-a-decade leads me to be more than ready to settle for half a loaf.  I have grow so tired of the reform talk that produces no result, though I am sure I am not as exhausted and frustrated as hundreds of thousands of federal prisoners, defendants and their families who have been clinging on to still empty promises of reform potential for year after year after year after year.  Van Jones has a couple of lines in his commentary that capture well my feelings here, as well as my desire to preserve some hope for this process:

My big heartache -- on this topic and so many others -- is how much common ground there is when you get people talking -- and yet how little we actually do about it.  Taking a small but meaningful step together now could allow us to take more steps together later.

April 19, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Federal Sentencing Guidelines, Prisons and prisoners, Reentry and community supervision, Who Sentences? | Permalink | Comments (0)

Sunday, April 08, 2018

Interesting Vermont Supreme Court ruling on sex-offender probation conditions

As reported in this local press article, the "Vermont Supreme Court ruled on Friday that the state cannot uniformly declare pornography off-limits to sex offenders." Here is more from the press report:

The decision does allow a sex offender’s probation to include such restrictions, but only if they are deemed specifically appropriate to the individual offender.  The 18-page decision dealt with the probation conditions of a man convicted of sexual assault in 2012 in Chittenden County....

[Yetha L. Lumumba] appealed several conditions of his probation, including one that prohibited him from “purchasing, possessing or using pornography or erotica and going to adult bookstores, sex shops, and topless bars,” according to court records.  The condition was described at the sentencing hearing as a standard one for sex offenders because pornography is seen as contributing to an increased risk of reoffending

“Vermont’s probation statute makes it clear that a court cannot prohibit a probationer from engaging in lawful behavior unless the prohibition relates to the defendant’s rehabilitation or public safety,” the Supreme Court justices wrote.  “Other courts have persuasively concluded that a sentencing court must provide at least some support on the record for imposing a probation condition restricting a defendant’s use of pornography, even when the defendant was convicted of a sex offense.”

The full ruling in Vermont v. Lumumba, 2018 VT 40 (Vt. April 6, 2018), is available at this link and covers lots of ground and cites a lot of law beyond the Green Mountain state. Here is how the unanimous opinion gets started:

Defendant challenges so-called standard and special sex-offender probation conditions that the trial court imposed following his conviction for sexual assault.  Defendant argues that this Court should strike a number of the standard conditions imposed by the trial court in its written order because the conditions were not orally pronounced during the sentencing hearing and were not sufficiently connected to his crime or rehabilitation.  He also argues that the sex-offender condition prohibiting defendant from purchasing, possessing, or using pornography or erotica and from going to “adult bookstores, sex shops, topless bars, etc.” is unrelated to his offense and unconstitutionally vague.  We conclude that defendant failed to properly preserve his objections to the standard conditions and review them for plain error.  Based on the particular provisions and the State’s concessions, we strike some conditions, remand some conditions, and affirm the remaining conditions.  We strike the challenged special condition as unsupported by the record.

April 8, 2018 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (4)

George Will commentary assails felon disenfranchisement in Florida

I am very pleased to see this effective commentary by George Will under the headline "There’s no good reason to stop felons from voting." I recommend the short piece in full, and here are parts that struck me as especially effective:

Intelligent and informed people of good will can strenuously disagree about the wisdom of policies that have produced mass incarceration. What is, however, indisputable is that this phenomenon creates an enormous problem of facilitating the reentry into society of released prisoners who were not improved by the experience of incarceration and who face discouraging impediments to employment and other facets of social normality.  In 14 states and the District , released felons automatically recover their civil rights.

Recidivism among Florida’s released felons has been approximately 30 percent for the five years 2011-2015.  Of the 1,952 people whose civil rights were restored, five committed new offenses, an average recidivism rate of 0.4 percent.  This sample is skewed by self-selection — overrepresentation of those who had the financial resources and tenacity to navigate the complex restoration process that each year serves a few hundred of the 1.6 million.  Still, the recidivism numbers are suggestive.

What compelling government interest is served by felon disenfranchisement? Enhanced public safety?  How?  Is it to fine-tune the quality of the electorate?  This is not a legitimate government objective for elected officials to pursue.  A felony conviction is an indelible stain: What intelligent purpose is served by reminding felons — who really do not require reminding — of their past, and by advertising it to their community?  The rule of law requires punishments, but it is not served by punishments that never end and that perpetuate a social stigma and a sense of never fully reentering the community.

April 8, 2018 in Collateral consequences, Purposes of Punishment and Sentencing, Race, Class, and Gender, Reentry and community supervision | Permalink | Comments (4)

Thursday, April 05, 2018

Reviewing some modern felony disenfranchisement realities

Stateline has this new piece providing a crisp accounting of modern felony disenfranchisement realities and concerns. I recommend the full piece, which is headlined "Felony Voting Laws Are Confusing; Activists Would Ditch Them Altogether." Here are excerpts:

Disenfranchised felons are about 2.5 percent of the general voting-age population, but that number triples among African-Americans, according to estimates from the Sentencing Project. The disparity is starkest in the Southeast, where more than 20 percent of black voters are disenfranchised in some states.

In Louisiana, where an estimated 108,000 people are disenfranchised because of past criminal convictions, people aren’t allowed to vote until they have finished their parole. For many, that means decades.

At 72, Checo Yancy has been out of prison for over 14 years.  But he’ll be on parole until 2056 and unlikely to cast a ballot before he dies. He is a plaintiff in a Louisiana case that seeks to restore voting rights to people as soon as they leave prison. The case may be decided as soon as this week....

Activists in Florida collected more than 840,000 signatures to put a measure on the November ballot that would allow people with a felony conviction to vote once they complete probation or parole. The state has imposed a lifetime voting ban on 1.7 million Florida residents with felony convictions.  Only a pardon from the governor can restore their voting rights. And in a separate suit challenging the state’s system, a federal judge called it “crushingly restrictive” and later ordered the clemency board to adopt strict criteria and timelines for reviewing applications.

Many who seek to change the laws say the restrictions are rooted in racism, noting that many states enacted them shortly after blacks gained the right to vote. Robert McDuff, an attorney with the Mississippi Center for Justice, is also challenging the list of crimes in the state constitution that disenfranchises an estimated 218,000 people, “chosen because of the framers’ belief that they were disproportionately committed by African-Americans, and it was part of the larger effort by the framers of the 1890 constitution to eliminate the African-American vote.”...

Those who want to ease the restrictions argue that voting helps former inmates feel included and engaged in the community, reducing the likelihood of recidivism. That’s not the way many governors see it. Nebraska Gov. Pete Ricketts, a Republican, vetoed a bill last year that would have allowed felons to vote once they left prison. “Requiring convicted felons to wait before allowing them to vote provides an incentive to maintain a clean record and avoid subsequent convictions,” Ricketts said in his veto letter. Although the bill was reintroduced this year, a spokesman for the governor said his position has not changed.

In recent years, some conservative states have lifted other restrictions on felons, like those that bar them from receiving professional licenses or food stamps, hoping to reduce recidivism and save money on criminal justice costs such as incarceration, probation and parole.

Louisiana state Rep. Walt Leger, a Democrat who has sponsored criminal justice legislation, said the prospect of saving money can get both parties on board. Restoring voting rights, though, is still seen as politically risky. “That financial conversation is not necessarily a part of the right to vote conversation,” he said. “So for some it continues to be a soft-on-crime versus tough-on-crime issue.”

April 5, 2018 in Collateral consequences, Race, Class, and Gender, Reentry and community supervision | Permalink | Comments (3)

Wednesday, April 04, 2018

Are prisons and jail now, and should they be, our society's modern addiction treatment centers?

The question in the title of this post is prompted by this notable new article in Stateline headlined "Addiction Treatment, for Jails and Prisons, Gains Momentum."  Here are excerpts:

From the moment they are arrested, people with an addiction to heroin and prescription painkillers and those who are taking medications to beat their addictions face the prospect of painful opioid withdrawal.

At least a quarter of the people in U.S. prisons and jails are addicted to opioids. Those who are released rejoin their communities with dangerously reduced tolerance and nothing to blunt their drug cravings, making them highly susceptible to a deadly overdose.

But new scientific evidence and a recently announced federal investigation may soften prison officials’ long-held opposition to medication-assisted treatment.

Rhode Island is the only state that provides all three FDA-approved addiction medications, methadone, buprenorphine and a long-acting, injectable form of naltrexone known as Vivitrol, to all inmates. A recent study in the medical journal JAMA Psychiatry found that opioid overdose deaths dropped by nearly two-thirds among recently incarcerated people in the first year of a new program that screens and provides addiction medicines to all state inmates. According to the study by Brown University researchers, the program not only reduces overdose deaths after the inmates are released, but also increases the likelihood they will stay in treatment and avoid getting arrested again.

Meanwhile in Massachusetts, which doesn’t provide methadone or buprenorphine to inmates, the U.S. Department of Justice is investigating whether corrections officials are violating the Americans with Disabilities Act by forcing inmates who were taking those addiction medicines when they entered prison to stop taking them while incarcerated.

Massachusetts lawmakers are considering a corrections bill that would require the state’s prisons and jails to offer all three FDA-approved medications. A similar proposal is advancing in Connecticut, which has provided methadone to some inmates in some jails for six years. The bill there would expand the program to all medications for all inmates.

And at the federal level, President Donald Trump promised last month to screen every federal inmate — roughly 180,000 people — for opioid addiction and provide Vivitrol in residential treatment centers prior to release. Trump also called for more federal support for state, local and tribal drug courts to help provide “evidence-based treatment as an alternative to or in conjunction with incarceration, or as a condition of supervised release.”

Fewer than 1 percent of the more than 5,000 U.S. prisons and jails, housing more than 2 million inmates, allow access to the FDA-approved medication, even though medical societies, addiction experts and correctional health organizations support their use. Finding the money to fund correctional drug treatment programs is a challenge in many states. But research shows that the cost of providing addiction medications in correctional facilities is outweighed over time by savings in both future health care and incarceration costs....

Standing in the way are sheriffs and other prison officials, who argue that allowing treatment inside prisons with methadone or buprenorphine — both narcotics that can be abused — will lead to the drugs being diverted within the prison and possibly to illicit street markets.

In Barnstable County, Massachusetts, for example, Sheriff James Cummings said he would not allow buprenorphine to be dispensed in his jail because it is considered contraband. “We ruled out buprenorphine because it doesn’t work for the people we deal with,” Cummings said. “Inmates try to smuggle it into the facility every day. It’s a narcotic. They use it until they can get their next heroin fix so they don’t get sick and they sell it to get money to buy more heroin. It’s not a good fit.”

Instead, Barnstable in 2012 added Vivitrol to its re-entry program for opioid-addicted inmates who are scheduled to leave within the next two weeks. Cummings said the program has reduced overdose deaths and repeat offenses. In general, Vivitrol is an easier sell in most prisons and jails, said Andrew Klein, who runs a Justice Department program aimed at getting more drug treatment into correctional facilities. But it’s not the best medication for everyone, he said.

In fact, nearly all corrections officials reject the use of either methadone or buprenorphine behind prison walls. That’s despite a history of research showing both medicines are highly effective at eliminating cravings, preventing overdoses and keeping people in recovery from opioid addiction....

At least 1 in 5 incarcerated people are imprisoned because of drug charges, but in many states, even more inmates are addicted to heroin and other opioids. In Connecticut, for example, at least 30 percent of the state’s 14,000 inmates are addicted to opioids, according to Kathleen Maurer, the medical director for he state’s corrections department. Nationwide, a quarter of heroin addicts pass through the corrections system each year, according to a study in the Journal for Opioid Management....

Five states — Hawaii, New Jersey, New York, Vermont and Washington — offer both methadone and buprenorphine to some inmates at one or more prisons or jails. Only Rhode Island offers all three medications to all inmates in all of its prisons and jails.

April 4, 2018 in Drug Offense Sentencing, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (2)

Saturday, March 31, 2018

Prez Trump declares April 2018 to be "Second Chance Month"

As reported in this official White House statement, President Donald Trump yesterday proclaimed April 2018 as "Second Chance Month." Here is the heart of the statement with a few lines stressed here that will become the basis for some commentary in a future post:

During Second Chance Month, our Nation emphasizes the need to prevent crime on our streets, to respect the rule of law by prosecuting individuals who break the law, and to provide opportunities for people with criminal records to earn an honest second chance. Affording those who have been held accountable for their crimes an opportunity to become contributing members of society is a critical element of criminal justice that can reduce our crime rates and prison populations, decrease burdens to the American taxpayer, and make America safer.

According to the Bureau of Justice Statistics, each year, approximately 650,000 individuals complete prison sentences and rejoin society. Unfortunately, two-thirds of these individuals are re-arrested within 3 years of their release.  We must do more ‑‑ and use all the tools at our disposal ‑‑ to break this vicious cycle of crime and diminish the rate of recidivism.

For the millions of American citizens with criminal records, the keys to successful re-entry are becoming employable and securing employment. Beyond the income earned from a steady paycheck, gainful employment teaches responsibility and commitment and affirms human dignity. As a Nation, we are stronger when more individuals have stable jobs that allow them to provide for both themselves and their loved ones.

I am committed to advancing reform efforts to prevent crime, improve reentry, and reduce recidivism. I expressed this commitment in my 2018 State of the Union Address and reinforced it by signing an Executive Order to reinvigorate the “Federal Interagency Council on Crime Prevention and Improving Reentry.”  In the spirit of these efforts, I call on Federal, State, and local prison systems to implement evidence-based programs that will provide prisoners with the skills and preparation they need to succeed in society. This includes programs focused on mentorship and treatment for drug addiction and mental health issues, in addition to job training.

This month, we celebrate those who have exited the prison system and successfully reentered society.  We encourage expanded opportunities for those who have worked to overcome bad decisions earlier in life and emphasize our belief in second chances for all who are willing to work hard to turn their lives around.

NOW, THEREFORE, I, DONALD J. TRUMP, President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim April 2018 as Second Chance Month.  I call on all Americans to commemorate this month with events and activities that raise public awareness about preventing crime and providing those who have completed their sentences an opportunity for an honest second chance.

A few prior recent related posts:

March 31, 2018 in Criminal justice in the Trump Administration, Prisons and prisoners, Reentry and community supervision, Who Sentences? | Permalink | Comments (4)

Thursday, March 22, 2018

Noting how Ohio judges and prison officials are sparring over law seeking to reduce prison readmissions

This new AP article, headlined "Judges, Ohio prison system at odds over bed reduction plan," reports on an interesting new difficulty within on-going Buckeye state efforts to reduce the prison population. Here are excerpts:

Judges and the state prison system are at odds over a new law meant to lower Ohio's inmate population by limiting the amount of time behind bars for low-level offenders who commit minor probation violations. At issue is a mandate capping the amount of time judges can send offenders to prison for violations like missing counseling appointments or committing misdemeanors.  The law enacted last year is part of a broader effort to save money and reduce crime by lowering Ohio's inmate population.  It affects inmates convicted of non-violent crimes such as drug possession, theft and fraud.

Under the law, judges can send inmates to prison for only 90 days for the least serious felony and 180 days for the next most serious.  But some judges say the law is unclear and are sending offenders to prison for longer sentences, often a year or more, according to the Department of Rehabilitation and Correction.  Judges also contend that the short sentencing caps lessen the incentive for repeat offenders to follow probation rules at all.

The state had counted on the law to decrease Ohio's inmate population by about 400 this year and as much as 1,100 next year, the prison system said.  Cynthia Mausser, the prison system's managing director of courts and community, noted that the longer such low-level offenders are "sitting in prison not becoming better people," the more time they spend "away from those pro-social programs and relationships and connections" that could help them... 

North Carolina put similar caps on certain probation violations in 2011 as part of changes to its sentencing laws. Colorado, Nevada and Tennessee have created stand-alone facilities for probation violators as alternatives to prison sentences, according to the National Conference of State Legislatures.

Ohio's prison system sent about 300 letters to judges in recent months alerting them that they went over the caps.  Prison officials don't have the authority to overrule judges, however, and so the longer sentences stayed in place. 

In southern Ohio, Robert Chambers violated his probation for a 2017 drug possession conviction in multiple ways, including admitted drug use and refusal to enter drug treatment, according to court records.  Chambers' attorney didn't return messages seeking comment.  Adams County Judge Brett Spencer finally sentenced Chambers to a year in prison, and was then singled out by the prison system for surpassing the three-month cap. "For not trying to become productive citizens, we give them a 75 percent bonus," Spencer said of the sentencing caps.

Mahoning County Judge John "Jack" Durkin said judges know it's better to focus on offenders' substance abuse problems, help them find jobs and complete their education. But at some point, especially after several violations, prison must be an option "to protect the public and punish the defendant," Durkin said.

March 22, 2018 in Procedure and Proof at Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (2)

Interesting new US Sentencing Commission analysis of possible impact of Sentencing Reform and Corrections Act of 2017

I just noticed on the US Sentencing Commission's website this recent letter from the USSC's Director of its Office of Research and Data to an analyst at the Congressional Budget Office. Here is how the letter gets started:

The Congressional Budget Office has requested the U.S. Sentencing Commission to assist it in its assessment of the budgetary impact of S. 1917, the Sentencing Reform and Corrections Act of 2017, were it to be enacted.  Enclosed with this letter is the Commission’s estimate of the impact of several sections of this bill on the sentences that would be imposed on federal offenders as well as the impact on the size of the federal prison population.

As you can see on the enclosed, the Commission has estimated the number of offenders who would be affected by each section of the bill for which an estimate was possible. Some of those sections have both prospective and retroactive impacts.  For the provisions that have both, the Commission has provided separate estimates of the number of offenders affected. The data used for this analysis was Commission data, however the retroactive analyses were based, in part, on information from the Federal Bureau of Prisons (BOP) as to offenders who were incarcerated as of October 28, 2017.

The detailed "Sentence and Prison Impact Estimate Summary" serves to confirm my long-standing belief that the corrections provisions of SRCA could and would impact many tens of thousands more prisoners than the sentencing reform provisions.  In rough particulars, the USSC analysis suggests about 7,000 current prisoners could benefit from the retroactive sentencing provisions of Title I of the SRCA, whereas over 75,000 current federal prisoners could be eligible for the corrections credits of Title II of the SRCA.  (Prospectively, according to the USSC analysis, a few thousand new offenders would benefit from the sentencing provisions of Title I of the SRCA.  And, though not discussed by the USSC, it is also likely tens of thousands of new offenders would also be able to benefit from the corrections credits of Title II of the SRCA.)

As previously reported, though the SRCA passed the Senate Judiciary Committee by a 16-5 vote last month, the White House has formally expressed support only for the prison reform components of the bill.  Senate Judiciary Chair Charles Grassley has indicated he wants to keep pushing the SRCA in its current form, but other important GOP leaders in the Senate and elsewhere seem prepared and eager only to move forward with prison reform at this time.  In light of these new USSC data, I sincerely hope Senator Grassley and lots of criminal justice reform advocates will appreciate that a huge number of current and future federal prisoners could and would benefit from enacting just the corrections piece of the SRCA.  Given widespread support for reform provisions that could have widespread impact, I hope we see some movement on the corrections front soon.  But, sadly, given an array of problematic personalities and politics, I am not optimistic.

A few prior related posts:

March 22, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Reentry and community supervision | Permalink | Comments (0)

Wednesday, March 21, 2018

"Measuring Change: From Rates of Recidivism to Markers of Desistance"

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

Reducing the incidence of crime is a primary task of the criminal justice system, and one for which it rightly should be held accountable.  The system’s success is frequently judged by the recidivism rates of those who are subject to various criminal justice interventions, from treatment programs to imprisonment.  This Article suggests that, however popular, recidivism alone is a poor metric for gauging the success of the criminal justice interventions, or of those who participate in them.  This is true primarily because recidivism is a binary measure, and behavioral change is a multi-faceted process. Accepting recidivism as a valid stand-alone metric imposes on the criminal justice system a responsibility outside its capacity, demanding that its success turn on transforming even the most serious and intractable of offenders into fully law-abiding citizens.  Instead of measuring success by simple rates of recidivism, policymakers should seek more nuanced metrics. 

One such alternative is readily-available: markers of desistance. Desistance, which in this context means the process by which individuals move from a life that is crime-involved to one that is not, is evidenced not just by whether a person re-offends at all, but also by increasing intervals between offenses and patterns of de-escalating behavior.  These easily-obtainable metrics, which are already widely relied on by criminologists, can yield more nuanced information about the degree to which criminal justice interventions correlate to positive (or negative) life change.  They also resemble more closely the ways in which other fields that address behavioral change, such as education, attempt to measure change over time.

Measuring the success of criminal justice interventions by reference to their effects on desistance would mean seeking evidence of progress, not perfection.  Such an approach would allow criminal justice agencies to be held accountable for promoting positive change without asking them to do the impossible, thereby creating new pathways by which the criminal justice system could be recognized for achieving real and measurable progress in crime reduction.

March 21, 2018 in Data on sentencing, National and State Crime Data, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (1)

Friday, March 09, 2018

"The Reintegrative State"

The title of this post is the title of this timely paper authored by Joy Radice that has just been posted to SSRN.  Here is its abstract

Public concern has mounted about the essentially permanent stigma created by a criminal record. This is no small problem when the U.S. criminal history database currently stores seventy-seven million criminal records, and poor people and people of color constitute a severely disproportionate number of them.  A criminal record makes it harder for people to find housing, get hired, attend college, and reunite with their families.  Yet these very things have the greatest chance of helping people lead law-abiding lives and reducing recidivism.  Scholars, legislators, and advocates have confronted this problem by arguing for reforms that give people with a conviction a second chance.  States have responded.  By one count, from 1994 to 2014, over forty state legislatures passed 155 statutes to mitigate the civil collateral consequences of a criminal record.  Although states have recognized that they have an interest in reintegrating their citizens with convictions, most people with criminal records cannot return to full citizenship.  The stigma of a conviction follows them for a lifetime, even for the most minor crimes.

This Article takes a systematic look at state reforms and integrates them into a more workable and effective whole, which I call the Reintegrative State.  It makes four contributions to the growing literature on collateral consequences and criminal records.  First, it argues that there is a state interest, if not obligation, to create an intentional and sequenced process to remove civil legal disabilities triggered by a conviction and to mitigate the permanency of public criminal records.  Second, this Article argues that reintegrating people with convictions back into society is consistent with the state’s interest in punishment and public safety, especially in light of criminology research showing that a significant number of people stop committing crimes.  Third, it critiques current state experiments with reentry initiatives as piecemeal, discretionary, inadministrable, and limited to a narrow segment of people with criminal records.  Fourth and finally, this Article argues that the state can and should be the external force that destigmatizes a person with a conviction by reestablishing that person’s legal status.  To do so effectively, the state must incorporate reintegration approaches throughout the criminal justice system — not just after sentencing or after release.  The Reintegrative State envisions a holistic framework for helping those with criminal records re-assimilate into society.

March 9, 2018 in Collateral consequences, Purposes of Punishment and Sentencing, Race, Class, and Gender, Reentry and community supervision | Permalink | Comments (1)

Thursday, March 08, 2018

"Turn Prisons Into Colleges" ... and urging colleges to invest in prisoner education

The quoted portion title of this post is the headline of this recent New York Times commentary authored by Elizabeth Hinton.  Here are excerpts (with a little commentary at the end from me):

Imagine if prisons looked like the grounds of universities. Instead of languishing in cells, incarcerated people sat in classrooms and learned about climate science or poetry — just like college students.  Or even with them.

This would be a boon to prisoners across the country, a vast majority of whom do not have a high school diploma. And it could help shrink our prison population. While racial disparities in arrests and convictions are alarming, education level is a far stronger predictor of future incarceration than race.

The idea is rooted in history. In the 1920s, Howard Belding Gill, a criminologist and a Harvard alumnus, developed a college-like community at the Norfolk State Prison Colony in Massachusetts, where he was the superintendent. Prisoners wore normal clothing, participated in cooperative self-government with staff, and took academic courses with instructors from Emerson, Boston University and Harvard. They ran a newspaper, radio show and jazz orchestra, and they had access to an extensive library....

Researchers from the Bureau of Prisons emulated this model when they created a prison college project in the 1960s. It allowed incarcerated people throughout the country to serve their sentences at a single site, designed like a college campus, and take classes full-time. Although the project was never completed, San Quentin State Prison in California created a scaled-down version with support from the Ford Foundation, and it was one of the few prisons then that offered higher education classes.

Today, only a third of all prisons provide ways for incarcerated people to continue their educations beyond high school. But the San Quentin Prison University Project remains one of the country’s most vibrant educational programs for inmates, so much so President Barack Obama awarded it a National Humanities Medal in 2015 for the quality of its courses.

The idea of expanding educational opportunities to prisoners as a way to reduce recidivism and government spending has again gained momentum. That’s partly because of a study published in 2013 by the right-leaning RAND Corporation showing that inmates who took classes had a 43 percent lower likelihood of recidivism and a 13 percent higher likelihood of getting a job after leaving prison.

Lawmakers have rightly recognized the wisdom in turning prisons into colleges. In 2015, Mr. Obama created the Second Chance Pell Pilot Program, which has enrolled more than 12,000 incarcerated students in higher education programs at 67 different schools. The Senate Committee on Health, Education, Labor and Pensions is considering permanently reinstating Pell Grants for incarcerated students, who lost access to federal scholarships under the 1994 crime bill. Even Education Secretary Betsy DeVos calls providing prisoners with the chance to earn a degree “a very good and interesting possibility.”...

Mass incarceration is inextricably linked to mass undereducation in America. Yale, Princeton, Cornell, Georgetown, Wesleyan and New York University are among a handful of institutions that realize this and have begun to create ways for incarcerated people to take college classes.  These universities recognize that they have a moral responsibility to pursue educational justice for prisoners, a group that has disproportionately attended under-resourced public schools.

College presidents across the country emphasize the importance of “diversity, inclusion and belonging,” and they are reckoning with their institutions’ ties to slavery.  Expanding prison education programs would link those two ventures in a forward-thinking way.  It’s clear that education will continue to be a central part of criminal justice reform.  The question we should ask ourselves is not “Will incarcerated students transform the university?” The better question is, “Will colleges begin to address and reflect the world around them?”

I very much like that this commentary is not merely suggesting prisons ought to foster educational opportunities, but also that it calls upon "college presidents across the country" to commit to "expanding prison education programs."  I blogged here last month about the new program in New York through which the company JPay will provide all New York state prison inmates with a electronic tablet, through which prisoners can purchase programming. I know many colleges and universities have a range of on-line degree programs and ample on-line education content.  I would love to see some higher education institutions partnering with JPay or other like companies to provide education content to prisons for free or at the lowest possible cost. 

As I see it, lots of the needed infrastructure and substantive content already exists to make college-level educational opportunities available to more prisons, if university administrators and prison official are truly committed to making a difference in this way.  In other words, I think there already is a way, the only question is whether there is the will.

March 8, 2018 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Technocorrections, Who Sentences? | Permalink | Comments (6)

Via executive order, Prez Trump creates new Federal Interagency Council on Crime Prevention and Improving Reentry

Images (8)As reported in this Axios piece, "President Trump on Wednesday launched, by executive order, the Federal Interagency Council on Crime Prevention and Improving Reentry." Here is more:

The president enacted the council with the aim of reducing crime while looking for ways to "provide those who have engaged in criminal activity with greater opportunities to lead productive lives."...

“We applaud President Trump for following through on his stated commitment to reducing crime, reforming our prisons and rehabilitating individuals who are hungry for a second chance,” [said] Mark Holden, general counsel at Koch Industries who recently launched the Safe Streets and Second Chances prison reform initiative, told Axios. Holden said he is particularly encouraged that Jared Kushner will be one of the co-chairs.

While she thinks this is a good step from the administration, Inimai Chettiar, director of the justice program at the Brennan Center for Justice told Axios, "there can be no real criminal justice reform without reducing the number of people entering prison. The President and Attorney General are attempting to kill bipartisan sentencing reform in Congress, and offering incremental reentry reforms instead."...

The executive order calls for "mental health, vocational training, job creation, after-school programming, substance abuse, and mentoring," for inmates. "Incarceration is necessary to improve public safety, but its effectiveness can be enhanced through evidence-based rehabilitation programs." The order asks for a report from the council within 90 days that will outline a timeline for ways to reduce crime and recidivism.

The council will be co-chaired by Jared Kushner, Attorney General Jeff Sessions and the Assistant to the President of Domestic Policy Andrew Bremberg.  The council will include the heads of: The Department of the Treasury, the Department of the Interior, the Department of Agriculture, the Department of Commerce, the Department of Labor, the Department of Health and Human Services, the Department of Housing and Urban Development, the Department of Education, the Department of Veterans Affairs, the Office of Management and Budget, and the Office of National Drug Control Policy.

The executive order asks for ways to reduce recidivism and better re-entry for those coming out of the criminal justice system, but does not suggest looking at changes to sentencing guidelines. 

The full Executive Order creating the Federal Interagency Council on Crime Prevention and Improving Reentry can be accessed at this link. The first section of the EO provides as follows:

Section 1. Purpose. The Federal Government must reduce crime, enhance public safety, and increase opportunity, thereby improving the lives of all Americans. In 2016, the violent crime rate in the United States increased by 3.4 percent, the largest single-year increase since 1991. Additionally, in 2016, there were more than 17,000 murders and nonnegligent manslaughters in the United States, a more than 20 percent increase in just 2 years. The Department of Justice, alongside State, local, and tribal law enforcement, has focused its efforts on the most violent criminals. Preliminary statistics indicate that, in the last year, the increase in the murder rate slowed and the violent crime rate decreased.

To further improve public safety, we should aim not only to prevent crime in the first place, but also to provide those who have engaged in criminal activity with greater opportunities to lead productive lives.  The Federal Government can assist in breaking this cycle of crime through a comprehensive strategy that addresses a range of issues, including mental health, vocational training, job creation, after-school programming, substance abuse, and mentoring. Incarceration is necessary to improve public safety, but its effectiveness can be enhanced through evidence-based rehabilitation programs.  These efforts will lower recidivism rates, ease incarcerated individuals’ reentry into the community, reduce future incarceration costs, and promote positive social and economic outcomes.

I am not going to get too excited by this new Council until I see what kind of "recommendations for evidence-based programmatic and other reforms" appear in the various reports it is tasked to issue. But this order provides still more reason to believe that the Trump White House wants to (and wants to be able to claim) it is doing something productive in the arena of criminal justice reform.

Notably, President Barack Obama formally acted in a fairly similar manner via this Presidential Memorandum in late April 2016 discussing "Federal Interagency Reentry Council." That memorandum noted that "in 2011, the Attorney General formed the Federal Interagency Reentry Council, a Cabinet-level working group dedicated to the rehabilitation and reintegration of individuals returning to their communities from prisons and jails" and said the 2016 memorandum was being issued to "ensure that the Federal Government continues the important work of this council and builds on its successes." This new Executive Order by Prez Trump formerly states that it revokes Prez Obama's 2016 memorandum, but in substance it looks quite similar.

March 8, 2018 in Collateral consequences, Criminal justice in the Trump Administration, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (0)

Friday, February 16, 2018

New GAO report explores "Federal Prisons: Information on Inmates with Serious Mental Illness and Strategies to Reduce Recidivism"

The United States Government Accountability Office yesterday released this lengthy report with the title that is the quoted portion of the title of this post.  This "Highlights" page summarizes "What GAO Found":

About two-thirds of inmates with a serious mental illness in the Department of Justice's (DOJ) Federal Bureau of Prisons (BOP) were incarcerated for four types of offenses — drug (23 percent), sex offenses (18 percent), weapons and explosives (17 percent), and robbery (8 percent) — as of May 27, 2017.  GAO's analysis found that BOP inmates with serious mental illness were incarcerated for sex offenses, robbery, and homicide/aggravated assault at about twice the rate of inmates without serious mental illness, and were incarcerated for drug and immigration offenses at about half or less the rate of inmates without serious mental illness.  GAO also analyzed available data on three selected states' inmate populations and the most common crimes committed by inmates with serious mental illness varied from state to state due to different law enforcement priorities, definitions of serious mental illness and methods of tracking categories of crime in their respective data systems.

BOP does not track costs related to incarcerating or providing mental health care services to inmates with serious mental illness, but BOP and selected states generally track these costs for all inmates.  BOP does not track costs for inmates with serious mental illness in part because it does not track costs for individual inmates due to resource restrictions and the administrative burden such tracking would require.  BOP does track costs associated with mental health care services system-wide and by institution.  System-wide, for fiscal year 2016, BOP spent about $72 million on psychology services, $5.6 million on psychotropic drugs and $4.1 million on mental health care in residential reentry centers.  The six state departments of corrections each used different methods and provided GAO with estimates for different types of mental health care costs.  For example, two states provided average per-inmate costs of incarceration for mental health treatment units where some inmates with serious mental illness are treated; however, these included costs for inmates without serious mental illness housed in those units.

DOJ, Department of Health and Human Service's Substance Abuse and Mental Health Services Administration (SAMHSA), and criminal justice and mental health experts have developed a framework to reduce recidivism among adults with mental illness.  The framework calls for correctional agencies to assess individuals' recidivism risk and substance abuse and mental health needs and target treatment to those with the highest risk of reoffending.  To help implement this framework, SAMHSA, in collaboration with DOJ and other experts, developed guidance for mental health, correctional, and community stakeholders on (1) assessing risk and clinical needs, (2) planning treatment in custody and upon reentry based on risks and needs, (3) identifying post-release services, and (4) coordinating with community-based providers to avoid gaps in care.  BOP and the six states also identified strategies for reducing recidivism consistent with this guidance, such as memoranda of understanding between correctional and mental health agencies to coordinate care.  Further, GAO's literature review found that programs that reduced recidivism among offenders with mental illness generally offered multiple support services, such as mental health and substance abuse treatment, case management, and housing assistance.

February 16, 2018 in Offender Characteristics, Reentry and community supervision | Permalink | Comments (1)

Wednesday, February 14, 2018

"Reentry Court Research: An Overview of Findings from the National Institute of Justice’s Evaluation of Second Chance Act Adult Reentry Courts"

The title of this post is the title of this new report on findings about eight programs that received funding and technical assistance from the Bureau of Justice Assistance under the Second Chance Act of 2007.  Here is part of the report's abstract:

Background: There are myriad challenges associated with the reentry of formerly incarcerated individuals, coupled with a dearth of rigorous research examining reentry courts. It is well known that formerly incarcerated individuals face overwhelming obstacles, such as limited occupational or educational experiences to prepare them for employment, drug and alcohol addictions, mental and physical health challenges, strained family relations, and limited opportunities due to the stigma of a criminal record.  Reentry courts seek to address these challenges by assessing the individuals for risks and needs; linking them to appropriate community-based services; and overseeing the treatment process through ongoing court oversight, probation or parole supervision, and case management.  Under the Second Chance Act (SCA) of 2007 (Pub. L. 110-199), the Bureau of Justice Assistance funded reentry programs including the eight sites participating in this National Institute of Justice Evaluation of SCA Adult Reentry Courts.  This document provides a summary overview of the evaluation and complements three annual reports that provide more detailed information on the program processes and populations, research methods, and findings....

Results: Results were mixed across sites.  One site consistently demonstrated positive outcomes across the interview, recidivism, and cost analyses with the reentry court successfully delivering more substance abuse treatment and other services than what was received by the comparison group.  In addition, reentry court participants out-performed the comparison group in reduced recidivism (re-arrests and re-conviction) and reincarceration (revocation and time in jail or prison).  Two sites had neutral, trending toward positive, results with reduced participant re-arrests but with other outcomes (such as convictions and re-incarceration) not significantly different between the participants and the comparison group.  Two other sites had mixed results (e.g., participants had significantly fewer re-arrests but significantly increased re-incarceration) and two had negative results (e.g., participants had significantly more re-arrests and incarceration while other outcomes were no different between groups).  Cost findings were similarly mixed with two sites experiencing cost savings due mainly to lower recidivism costs and fewer victimization costs for reentry court participants ($2,512 and $6,710 saved per participant) and the remainder experiencing loss (ranging from just over -$1,000 to almost -$17,000 loss per participant). The research protocol and process evaluation findings are documented in three annual project reports; research caveats include a lack of detailed treatment service data. Also, reentry court program investment costs are described, but the comparison of cost estimates is limited to outcomes and does not include net benefits based on investment in non-reentry court case processing in the comparison group.

Conclusions: Key processes that set the one site with positive outcomes apart from the other sites was the high level of consistency and intensity of substance abuse treatment, wraparound services for multiple criminogenic needs, high intensity supervision, as well as an increased use of praise from the judge along with other incentives and sanctions.  In addition, the eligibility criteria for this site required that participants have a substance use disorder with risk levels ranging from moderate to high (based on their local risk assessment with a three point scale that ranged from low to high).  In contrast, other site eligibility criteria did not require a substance use disorder and participant risk levels were mostly high to very high (depending on the assessment tool used and their specific scoring and risk category criteria).  It is possible that the sites with less positive results did not have the appropriate level and type of services consistently available to best serve the varying risk levels of their participants.

This detailed report reinforces yet again the conclusion I often, somewhat depressingly, reach when looking at careful research on an important topic: many of our most pressing criminal justice problems are really complicated and lack simple solutions.

February 14, 2018 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (0)

Monday, February 12, 2018

"Yes, Trump is embracing criminal justice reform"

The title of this post is the headline of this new opinion piece that struck me as notable for any number of reasons: the piece appears in the right-leaning Washington Examiner and is authored by well-known conservatives Ken Blackwell and Ken Cuccinelli.  The piece also ends with a call for Congress to catch up to states in the criminal justice reform arena.  Here are excerpts:

Throughout the last election cycle, there came fevered predictions from many commentators on the Left that, given candidate Donald Trump’s frank messaging about returning to "law and order" and confronting violent crime in American cities, criminal justice reform efforts were officially dead in the water.  Criminal justice reform appears “bleak in the age of Trump,” stated one article. “How Criminal Justice Reform Died,” intoned another.

Such fatalism was both misplaced and inaccurate. Misplaced, because the lion’s share of successful criminal justice reforms over the last ten years have advanced at the state and local levels, not in D.C.— mainly by southern red states. With oversight over roughly 90 percent of the country’s incarcerated population, the states will always be the primary mover of criminal justice policies, not the federal government.

But such predictions have now been proven inaccurate as well, given recent remarks made by now-President Trump about the need for federal prison reform....

Society is justified in expecting individuals to take ownership not just for their actions, but also for their reformation. This is hampered, however, when the weight of accumulated barriers to re-entry becomes a millstone. Research has been clear that getting a job upon release is among the most critical steps to reducing a person’s likelihood for recidivism. When President Trump and others say society has a “great interest” in helping ex-offenders get on the path of self-sufficiency, he’s speaking a well-established truism.

Fortunately, conservative states have long since begun helping ex-offenders land on their feet upon release. Chief among them: Texas, long known as a “tough on crime” stalwart. In 2007, state lawmakers passed a $241 million “justice reinvestment” package to increase capacity for substance abuse and mental health treatment and expand probation and parole services, as well as community-based diversion programs. This avoided the immediate need for $2.1 billion in spending just to meet their expected needs for new prison capacity.

More recently, Texas has passed indemnity laws to insulate employers and landlords from liability when they extend a job or lease to ex-offenders.  This makes it less likely that a criminal record will be an insuperable barrier to work or finding a place to live. Communities in Texas have been getting safer at the same time.  Crime rates have fallen by 31 percent, while incarceration rates have fallen by more than 20 percent. Eight prisons have been shuttered even as Texas’ population has soared, saving millions in annual operating costs.

In 2012, Georgia began investing in efforts aimed at reducing recidivism, including an expansion of in-prison educational resources.  They’ve since reduced their prison population and nearly eliminated its backlog of inmates awaiting transfer, all the while reducing crime by 8 percent and saving $25 million.  A large reform package passed in Louisiana last year has similar aims of steering less serious offenders away from incarceration and into more effective community-based programs. South Carolina, Utah, Alaska, Kentucky, and others have passed comprehensive reforms, as well.

As we mentioned above, the states are the natural gatekeepers for criminal justice reform.  But Congress has shortcomings within its own prison system to address, and is quickly running out of excuses for doing so.  President Trump, whom so many on the Left falsely assumed would spell the end of reform, has instead sounded a clarion call to advance it. He was right for doing so, as many conservative states have proved, and it's time Congress took up that challenge as well.

February 12, 2018 in Criminal justice in the Trump Administration, Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (4)

Wednesday, February 07, 2018

Sentencing Reform and Corrections Act of 2017 on the agenda for the Senate Judiciary Committee coming meeting

A helpful colleague made sure I saw the exciting news appearing at the very bottom of this agenda for an Executive Business Meeting of the United States Senate Committee on the Judiciary.  After a long list on nominees, we see on that agenda this item:


II. Bills
S.1917 Sentencing Reform and Corrections Act of 2017 (Grassley, Durbin, Graham, Feinstein, Lee, Leahy, Flake, Whitehouse, Klobuchar, Booker)   

I think this notice means that there is now some tangible movement (dare I say momentum) on one very significant federal criminal justice proposal.  Clicking though to the text of S.1917 Sentencing Reform and Corrections Act of 2017, one discovers that this bill has a whole lot of stuff stuffed into its three big sections. For example, "TITLE I — SENTENCING REFORM" includes, inter alia:

Sec. 101. Reduce and restrict enhanced sentencing for prior drug felonies."

Sec. 102. Broadening of existing safety valve....

Sec. 106. Mandatory minimum sentences for domestic violence offenses....

Sec. 108. Inventory of Federal criminal offenses.

Sec. 109. Fentanyl.

And "TITLE II — CORRECTIONS ACT" includes, inter alia:

Sec. 202. Recidivism reduction programming and productive activities.

Sec. 203. Post-sentencing risk and needs assessment system....

Sec. 207. Promoting successful reentry.

Sec. 208. Parole for juveniles.

Sec. 209. Compassionate release initiative.  

And "TITLE III — NATIONAL CRIMINAL JUSTICE COMMISSION ACT" would create another notable federal criminal justice entity.

I can state with confidence that Attorney General Jeff Sessions is surely opposed to the provisions in Title I of this bill, but I he may be supportive of Title II and maybe even Title III. And, of course, since he is no longer in the Senate, Jeff Sessions does not get a vote on legislation, and it will be interesting to see (assuming there is a vote tomorrow of sometime soon) whether there are many (or any) strong opponents of this bill even in this huge form.

February 7, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Reentry and community supervision, Who Sentences? | Permalink | Comments (2)

Monday, February 05, 2018

Reviewing the potential import and impact of Prez Trump's talk of prison reform

Matt Ford at The New Republic has this new piece with this full headline" "A Chance for Criminal Justice Reform Under Trump: Despite his fear-mongering over crime, the president recently promised to help ex-prisoners 'get a second chance at life'."  Can he deliver?"  Here are excerpts from the second half of the piece (with a particular paragraph stressed for additional comment):

Some Republican leaders in deep-red states have taken aggressive steps in recent years to reshape how their own states approach crime and punishment. Georgia has overhauled its criminal code and juvenile-justice system, leading to noticeable declines in its prison population. Texas rewrote its probation and parole guidelines and expanded treatment options for mental health and drug addiction. Kentucky expanded its pretrial services programs as part of a broader push towards bail reform.

At the same time, conservative policy organizations have taken up the cause. The Koch brothers and their network of nonprofit advocacy groups are reform’s most prominent backers on the right, drawing some skepticism from the left. The result is an unusually broad alliance in modern American politics that brings together the Heritage Foundation and the American Conservative Union alongside the ACLU and the left-leaning Center for American Progress.

Credit for this trend’s arrival at the White House apparently goes to Jared Kushner, the president’s son-in-law and and a close adviser. In recent months, Kushner has met with key Democratic and Republican lawmakers in Congress, reform-oriented governors, and advocacy groups. The issue may also carry some personal resonance for Kushner: His father, Charles Kushner, received a two-year prison sentence for tax evasion and other crimes in 2005.

So far, the administration is keeping mum on its exact vision for reform. When asked for more details about the president’s plan, the White House provided a factsheet that described the depth of the problem as well as Trump’s meetings with Republican state officials who’ve tackled the issue in their own backyard. The document contained no specific policy proposals, but those meetings could still provide a window into what sort of policy proposals the Trump administration might favor from Congress. “Kansas improved its juvenile justice system to help make sure young offenders do not become repeat offenders,” Trump noted at a criminal justice summit he hosted at the White House in January. “Kentucky is providing job training to inmates and helping them to obtain professional licenses upon release, and it’s been very successful.”

Proposals like those overlap with policies favored by Democrats, to an extent.  Liberals typically focus on preventing or limiting how Americans enter prison in the first place, through sentencing reform, diversion programs, or decriminalization for nonviolent drug offenses.  Conservative policymakers, on the other hand, tend to gravitate toward measures that help prisoners successfully reenter society like prison education and work-release programs.

But Trump’s rhetoric of late gives hope for bipartisan efforts in Congress to push through a criminal-justice reform bill this year.  While Trump prides himself as a master dealmaker, he’s been content to let Republican lawmakers and his top advisers sketch the details of major legislation on health care, tax reform, and immigration. As long as he’s not actively hostile to whatever lawmakers send him, reformers could find Trump more amenable to the final package if they can convince him it’s a win.

More important, Trump’s lip service to prison reform could be a political boost for reformers in deep-red states.  Any serious effort to reverse mass incarceration will take place in the state criminal-justice systems, where roughly 90 percent of American prisoners are housed.  By endorsing some type of reform, the president could bolster local efforts against challenges from the right.

Trump’s electoral victory, driven by his fear-mongering over crime, raised fears among many reformers that the moment for taking substantive, bipartisan steps against mass incarceration has passed.  Instead, he’s proving that the shift could be more durable than expected.

The paragraph that I have emphasized here strikes me as an especially important aspect of Prez Trump's recent reform talk even if major or significant federal statutory reform fails to emerge from Congress anytime soon.  Just as the "Right on Crime" movement has helped enable state-level politicians feel comfortable supporting criminal justice reform consistent with conservative principles, the avowed commitment by Prez Trump to prison reform allows state-level politicians to feel they can support prison reform consistent with supporting the President.  Indeed, effective criminal justice advocates in red states now may be able to call out any opponents of prison and reentry reform for seeking to undermine or resist what President Trump says is important for Making America Great Again.

February 5, 2018 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Prisons and prisoners, Reentry and community supervision, Who Sentences? | Permalink | Comments (1)

Thursday, February 01, 2018

Prez Trump speaks again about prison reform at the 2018 House and Senate Republican Member Conference  

As noted here a few days ago, President Donald Trump in his very first State of the Union address said that prior reform was on his agenda for the coming year.   Lest anyone think he was not serious about this issue, today in remarks at the 2018 House and Senate Republican Member Conference he spoke again about the topic.  From this official transcript, here is what Prez Trump had to say today:

We can reform our prison system to help those who have served their time get a second chance at life.  And I’ve watched this, and I’ve seen it, and I’ve studied it.  And people get out of prison, and they made a mistake.  And not all — some are very bad, but many are very good.  And they come home and they can’t get a job.  It’s sad.  They can’t — there’s — they can’t get a job.

Now, the best thing we’ve done to fix that, Paul, is the fact that the economy is just booming.  I mean, that fixes it better than any program we can do, anything we can do at all.  But the economy is so strong now and so good, and so many companies are moving in that I really believe that problem — it’s a big problem — is going to solve itself.  But we’re working on it.

I find notable (and a bit amusing) Prez Trump's assertion about prison reform that he has "studied it" (and I am not quite sure what "it" he is referencing).  Moreover, because I hope to see significant reforms coming out of Congress, I am bit concerned that Prez Trump is here also suggesting that the prisoner reentry problem "is going to solve itself."

Still, with Prez Trump's two statements this week about prison reform, following a White House meeting on this issue a few weeks ago, it now seems he is genuinely interested in this topic. That reality bodes well for the prospect of some measure of federal reform making it through Congress and to his desk.  But what developing reform might specifically look like, and just how it gets implemented, are the critical follow-up realities.  And, of course, nothing should be considered a done deal in DC until it is truly a done deal.

A few prior recent related posts:

February 1, 2018 in Criminal justice in the Trump Administration, Prisons and prisoners, Reentry and community supervision, Who Sentences? | Permalink | Comments (0)

Wednesday, January 31, 2018

"Top Trends in State Criminal Justice Reform, 2017"

The title of this post is the title of this short "Policy Brief" from The Sentencing Project.  Here is how it gets started:

The United States is a world leader in incarceration rates and keeps nearly 7 million persons under criminal justice supervision.  More than 2.2 million are in prison or jail, while 4.6 million are monitored in the community on probation or parole.  Changes in sentencing law and policy, not changes in crime rates, have produced the nation’s high rate of incarceration.  Scaling back incarceration will require changing policy and practice to reduce prison populations, address racial disparity, and eliminate barriers to reentry. In recent years a number of states have enacted reforms designed to reduce the scale of incarceration and impact of the collateral consequences of a felony conviction.  This briefing paper describes key reforms undertaken in 2017.

SENTENCING REFORMS

Lawmakers in several states enacted reforms to reduce the number of persons in prison and improve fairness in the criminal justice system.  Most notably, Louisiana authorized legislation, Senate Bill 139, which expanded probation eligibility to people convicted of third-time nonviolent offenses and first-time low-level violent offenses. The bill also expanded eligibility for treatment alternatives and drug courts.  The state amended parole practices, including lowering time served requirements before parole consideration, and authorized parole consideration for those sentenced to life at a time when their offense-type qualified for parole.  Other states — Arkansas, Hawaii, Michigan, and Montana — adopted a range of reforms, including expanding probation eligibility, reclassifying low-level felonies to misdemeanors, streamlining parole review mechanisms, and limiting prison admissions for technical violations.

January 31, 2018 in Data on sentencing, Reentry and community supervision, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2)

Monday, January 29, 2018

Two notable new reports urging big reductions in population on probation and parole

Capture jllAs detailed in this press release, "two new reports were released today – one national in scope and one focused on New York City and State — looking at probation and parole as key drivers of mass incarceration with minimal benefit to public safety or individual rehabilitation."  Here is more from the release:

The reports argue that the tremendous growth of people locked up for probation and parole violations — many of which are for minor, technical violations — is financially taxing on the corrections system and should be cut in half.

The national report, Too Big to Succeed was released by the Justice Lab at Columbia University and signed by 20 of the nation’s leading corrections administrators. According to the new report, there are nearly five million adults under community corrections supervision in America (more than double the number in prison and jail).  The almost four-fold expansion of community corrections since 1980 without a corresponding increase in resources has strained many of the nation’s thousands of community supervision departments, often unnecessarily depriving clients of their liberty without improving public safety.

Underfunded and with few alternatives, community corrections officers have learned to default to the most available option they have for those who violate the terms of their supervision — prison.  Many are reincarcerated for nothing more than a technical violation.  Regrettably, these punishments fall most heavily on young African American men....

The New York report, Less is More in New York, notes that while crime is declining in the City and jail populations have dipped below 9,000 for the first time in 35 years, only one population has increased — those in city jails for state parole violations (by 15%).  And 81% of those incarcerated in city jails for parole violations are either in for technical violations, misdemeanors, or non-violent felony arrests.

As state and city leaders agree that the jail complex on Rikers Island should be closed requiring a reduction in the NYC jail population, the report argues that the solution could be reducing unnecessary incarceration of persons on parole as well as to shrink the overall parole population and focus supervision and supports on those who need it the most.

Here are the full titles of these reports and links thereto:

January 29, 2018 in Criminal Sentences Alternatives, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (0)

Friday, January 26, 2018

New poll suggests strong bipartisan support for criminal justice reforms

JAN_Web-LogoThis new article from The Hill, headlined "Poll: 3/4 of Americans support criminal justice reform," provides highlights from a notable new survey:

Three-quarters of Americans think the nation’s criminal justice system needs to be significantly improved, according to a new poll out Thursday....

A Justice Action Network poll conducted by Robert Blizzard, a partner at the Republican-leaning Public Opinion Strategies, found a majority of Americans surveyed, 76 percent, believe that the country’s criminal justice system needs significant improvements.

Of the 800 registered voters polled between Jan. 11 and 14, 87 percent of Americans agree that some of the money being spent on locking up nonviolent offenders should be shifted to alternatives like electronic monitoring, community service and probation.

Two-thirds of voters — 65 percent — support fair chance hiring, and 87 percent of voters strongly support replacing mandatory minimum prison sentences for non-violent offenders with a system that allows judges more discretion.  Eighty-five percent of voters, meanwhile, agree that the main goal of the nation’s criminal justice system should be rehabilitating people to become productive law-abiding citizens.

Many more of the poll particulars are available via this Justice Action Network press release and through this PowerPoint.  The press release emphasizes reasons why politicians should be paying attention to these issues:

[V]oter support for bipartisan justice reforms is overwhelmingly high, especially among women, who remain a crucial voting bloc heading into the 2018 midterm elections, and may determine the makeup of the House in November....

“This is not a partisan issue–voters strongly believe that the country’s criminal justice system needs serious improvements,” said Robert Blizzard, Partner at Public Opinion Strategies. “Significant majorities of Republican and Democratic voters across the country favor these reforms, including key 2018 target constituencies like independent voters and women voters. I can’t emphasize enough how strongly voters support these reforms. As a political pollster looking towards 2018 I think all politicians should pay attention. Go back to 2006, women voted for the democratic candidate by double digits. In 2010, women favored the GOP candidate and helped deliver the house to Republicans. Key constituencies are strong on these reforms and they can help give a lift to candidates everywhere.”

January 26, 2018 in Elections and sentencing issues in political debates, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

Wednesday, January 24, 2018

Encouraging new report on prospects for prison reform legislation emerging from Congress

This report from The Hill, headlined "Prison reform gains new momentum under Trump," suggests that recent talk from the White house about prison reform might soon become real action from Congress.  Here are the details of an encouraging story:

Momentum is building under the Trump administration for criminal justice reform. The path forward, however, is looking a little different than it has in the past.

Previous efforts to reform the justice system have focused on cutting prison time for convicted felons. But those taking part in the current discussions say the focus has shifted to preventing ex-convicts from returning to jail, suggesting this approach has the best chance of winning approval from both Congress and the White House.

A source familiar with the talks between the White House and GOP members of Congress said a bipartisan prison-reform bill offered by Rep. Doug Collins (R-Ga.) is expected to be marked up in the House Judiciary Committee before the first quarter ends in April.

The Prison Reform and Redemption Act, co-sponsored by eight Democrats and seven Republicans, allows prisoners to serve the final days of their sentences in halfway houses or home confinement. To do so, prisoners have to complete evidence-based programs while in prison that have been shown to reduce recidivism rates. The legislation directs the attorney general to identify the most effective programs, which could include everything from job and vocational skills training to education and drug treatment....

Senate Majority Whip John Cornyn (R-Texas) has introduced similar legislation in the Senate along with Sen. Sheldon Whitehouse (D-R.I.). Collins and Cornyn are working closely together to ensure any differences between their bills are reconciled, the source familiar with talks said.

President Trump and Jared Kushner, Trump’s son-in-law and senior adviser, have met with lawmakers and advocates to talk about prison reform and the success states have had in the last few months, signaling there’s White House support for legislation. “The administration strongly believes that prison reform is a conservative issue that will help reduce crime and save taxpayer dollars and has the potential to gain bipartisan support,” a White House source said.

Bipartisan criminal justice reform efforts until now have largely focused on proposals to reduce mandatory minimum sentencing for certain nonviolent drug offenders and armed career criminals.  While talks now appear focused on prison reform, advocates say sentencing reform isn’t off the table just yet.

Brooke Rollins, president and CEO of the Texas Public Policy Foundation, which started the national Right on Crime campaign, said there’s more divisiveness around sentencing reform. “My best educated guess is that at some point that will become part of the discussion, but right now there is an encouraging [group] coalescing around prison reform.”

Rollins notes that criminal justice reform is a big issue and commended the administration for tackling it one piece at a time. “When trying to get it done all at once, you often end up with nothing,” she said. “I think this administration is smart to focus on prison reform for now.”

I share the view that an effort to get everything in one big reform bill can sometimes prevent getting any bill through the legislative process. And given that a good prison reform bill with lots of potential sentence-reduction credits could prove even more consequential for current and future federal prisoners than even broad mandatory minimum reforms, I am especially encouraged by the prospect of a prison reform bill being the first priority for Congress in the months ahead.  Of course, as with all parts of sentencing reform, the devil is in the details; I will not get to revved up about possible reform until the particulars are made public.  But this report heightens my hope that some significant federal reform may actually get done in the first part of 2018.

Recent related post:

January 24, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6)

Notable new initiative, Safe Streets & Second Chances, taking "evidence-driven approach to the chronic issues of recidivism"

Sssc_socialAs reported in this new article from The Hill, the "donor network helmed by billionaire brothers Charles and David Koch is putting $4 million behind a pilot program aimed at reducing recidivism rates among former prisoners." Here is more: 

The effort, called Safe Streets and Second Chances, launches Wednesday in four trial states — Texas, Florida, Pennsylvania and Louisiana.  The 1,000 participants will come from a mix of rural and urban communities and will receive “individualized reentry” programs and have their progress tracked.

The program is led by the Texas Public Policy Foundation and Dr. Carrie Pettus-Davis, an author and professor who says the U.S. prison system is focused too much on punishment and not enough on rehabilitation.

“This unique initiative marries research-driven policy and reentry services reforms,” Pettus-Davis said in a statement.  “Even though incarceration and reentry impacts millions of people’s lives in our country, there is a huge void in research on creating a successful transition of people from prison back home to our communities. We’re closing the gap.”

The webpage announcing the launch of the new Safe Streets & Second Chances initiative provides this additional information:

Today, a new initiative is being launched to reduce the high rate of recidivism by effectively rehabilitating and equipping incarcerated individuals with the tools they need to return home and become productive members of our communities. Called Safe Streets & Second Chances, the new effort uses proven approaches underpinned by academic research to develop comprehensive reentry activities for those releasing from prison to ensure they are successful once home in our communities.

Nearly 700,000 Americans will be released from prison this year, yet close to 70 percent of them are expected to return to prison within five years. This alarmingly high rate of recidivism endangers America’s communities, traps individuals — many of them non-violent offenders — in a cycle of incarceration, and costs taxpayers billions of dollars each year. It’s a problem largely due to criminal justice policies that focus on punishment, but too often fail to implement effective interventions that correct people both in prison and upon release.

Safe Streets & Second Chances takes an evidence-driven approach to the chronic issues of recidivism. This initiative crafts individualized reentry approaches informed by the latest academic research to shift the outcome focus of our criminal justice system from whether individuals are punished to whether they are improved, rehabilitated, and capable of redemption.

Led by author and renowned scholar Dr. Carrie Pettus-Davis, the research component of the new effort will include a four-state, eight-site, randomized controlled trial involving more than 1,000 participants in a mix of urban and rural communities. The four states being examined include Florida, Texas, Pennsylvania and Louisiana.

DISCLOSURE: As detailed in this prior post, the new Drug Enforcement and Policy Center (DEPC) I am helping to get started at The Ohio State University Moritz College of Law was made possible by a gift from the Charles Koch Foundation.

January 24, 2018 in Data on sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (1)

Thursday, January 18, 2018

New research findings by computer scientists "cast significant doubt on the entire effort of algorithmic recidivism prediction"

F1.mediumThis notable new research article in the latest issue of Science Advances provides a notable new perspective on the debate over risk assessment instruments. The article is authored by computer scientists Julia Dressel and Hany Farid and is titled "The accuracy, fairness, and limits of predicting recidivism."  Here are parts of its introduction:

In the criminal justice system, predictive algorithms have been used to predict where crimes will most likely occur, who is most likely to commit a violent crime, who is likely to fail to appear at their court hearing, and who is likely to reoffend at some point in the future.

One widely used criminal risk assessment tool, Correctional Offender Management Profiling for Alternative Sanctions (COMPAS; Northpointe, which rebranded itself to “equivant” in January 2017), has been used to assess more than 1 million offenders since it was developed in 1998. The recidivism prediction component of COMPAS — the recidivism risk scale — has been in use since 2000.  This software predicts a defendant’s risk of committing a misdemeanor or felony within 2 years of assessment from 137 features about an individual and the individual’s past criminal record.

Although the data used by COMPAS do not include an individual’s race, other aspects of the data may be correlated to race that can lead to racial disparities in the predictions. In May 2016, writing for ProPublica, Angwin et al. analyzed the efficacy of COMPAS on more than 7000 individuals arrested in Broward County, Florida between 2013 and 2014.  This analysis indicated that the predictions were unreliable and racially biased.  COMPAS’s overall accuracy for white defendants is 67.0%, only slightly higher than its accuracy of 63.8% for black defendants.  The mistakes made by COMPAS, however, affected black and white defendants differently: Black defendants who did not recidivate were incorrectly predicted to reoffend at a rate of 44.9%, nearly twice as high as their white counterparts at 23.5%; and white defendants who did recidivate were incorrectly predicted to not reoffend at a rate of 47.7%, nearly twice as high as their black counterparts at 28.0%. In other words, COMPAS scores appeared to favor white defendants over black defendants by underpredicting recidivism for white and overpredicting recidivism for black defendants....

While the debate over algorithmic fairness continues, we consider the more fundamental question of whether these algorithms are any better than untrained humans at predicting recidivism in a fair and accurate way.  We describe the results of a study that shows that people from a popular online crowdsourcing marketplace — who, it can reasonably be assumed, have little to no expertise in criminal justice — are as accurate and fair as COMPAS at predicting recidivism. In addition, although Northpointe has not revealed the inner workings of their recidivism prediction algorithm, we show that the accuracy of COMPAS on one data set can be explained with a simple linear classifier.  We also show that although COMPAS uses 137 features to make a prediction, the same predictive accuracy can be achieved with only two features. We further show that more sophisticated classifiers do not improve prediction accuracy or fairness. Collectively, these results cast significant doubt on the entire effort of algorithmic recidivism prediction.

A few (of many) prior related posts on risk assessment tools:

January 18, 2018 in Data on sentencing, Procedure and Proof at Sentencing, Race, Class, and Gender, Reentry and community supervision, Who Sentences? | Permalink | Comments (4)

Wednesday, January 17, 2018

"Breaking Down Barriers: Experiments into Policies That Might Incentivize Employers to Hire Ex-Offenders"

The title of this post is the title of this notable new Rand Corporation research report. Here is its summary and some of its key findings and recommendations:

The rate of criminal punishment in the United States has had far-reaching economic consequences, in large part because people with criminal records are marginalized within the labor market. Given these negative economic implications, federal, state and local officials have developed a host of policies to encourage employers to hire ex-offenders, with varying degrees of success.  To inform policies and programs aimed at improving employment rates for ex-offenders, we examined employer preferences regarding policy options targeted to incentivize hiring individuals with one nonviolent felony conviction.

In our experiments, we found employers were 69 percent more likely to consider hiring an ex-offender if a hiring agency also provides a guaranteed replacement worker in the event the ex-offender was deemed unsuitable and 53 percent more likely to hire an ex-offender who can provide a certificate of validated positive previous work performance history.  Having consistent transportation provided by a hiring agency increased the likelihood of being considered for hire by 33 percent. 

Employers also were found to be 30 percent more likely to consider an ex-offender for hire if the government increases the tax credit from 25 percent of the worker’s wages (up to $2,500) to 40 percent (up to $5,000) — double the current maximum amount allowed by the Work Opportunity Tax Credit — and 24 percent more likely to hire an ex-offender if the government completed all tax-related paperwork.

Key Findings

Worker Replacement and Fee Discounts Increase Hiring Prospects for Ex-Offenders...

Tax Credits Have a Similarly Positive Effect...

Employer Access to Previous Performance Could Factor into Hiring...

Recommendations

  • Staffing agencies and reentry or reintegration programs could increase the likelihood of employment for people with a criminal record if they guarantee prospective employers a replacement employee.
  • State policymakers should consider expanding post-conviction certification programs. Across both the tax credit and staffing agency discount experiments, employers demonstrate a clear preference for wanting to know whether an ex-offender job candidate has a consistent work history and verifiable positive employment references versus simply knowing whether the person follows company codes of conduct.
  • Tax agencies should consider reducing the paperwork that companies have to fill out for credits. Government agencies could also consider providing help to prepare and submit the forms.
  • Ensuring reliable transportation to and from a job site for candidates with a criminal record increases the likelihood an employer will support hiring such individuals. As with reducing paperwork, the impact of this policy is more limited than many of our other tested policy features.

January 17, 2018 in Collateral consequences, Offender Characteristics, Reentry and community supervision, Who Sentences? | Permalink | Comments (6)

Thursday, January 11, 2018

Press reports indicate White House listening session to be focused only on reentry issues, not sentencing reform

As noted here yesterday, there are plans for an afternoon meeting at the White House on criminal justice issues.  But, as this new Newsweek article details, it seems that sentencing reform is not going to be part of the discussion.  The article's headline provides the essentials, "Trump and Kushner's Prison Reform Plan Not Expected to Reduce Sentences or Fix Prison Conditions," and here are the details:

President Donald Trump will hold a listening session on prison reform Thursday that will focus on improving prisoner reentry – the process of preparing inmates for release–with a conservative approach, multiple people in talks with the administration told Newsweek.

The session is only expected to include politicians and religious and nonprofit leaders from the right. It is not expected to include discussion on topics like prison conditions or sentencing reform.

In attendance will be three Republican governors who instituted criminal justice reform in their states–Governor Nathan Deal of Georgia, Governor Matt Bevin of Kentucky and Governor Sam Brownback of Kansas–along with televangelist Paula White, according to Derek Cohen, the director of Right on Crime at the Texas Public Policy Foundation, which has been in discussions about conservative reentry reform methods with the Trump administration. “All the policy issues we’ve discussed with the administration have a conservative orientation,” said Cohen, who added that prison ministries are crucial to a successful release. “Faith is going to be an integral part of any reentry plan.”

The Texas Public Policy Foundation and the Trump administration have discussed cutting government regulation to make it easier for former prisoners to get jobs, Cohen said. Getting rid of restrictions that bar ex-cons from working as barbers, for example, allow inmates to more easily get a job upon release and reduce the likelihood of recidivism, he added.

Koch Industries general counsel Mark Holden will also attend the meeting, which he said will be at 1:30 p.m. in the White House’s Roosevelt Room. “Our point of view at Koch is prisoner reentry needs to begin at day one of the sentence” and not “60 or 90 days out” from release, said Holden, who had also been involved in the prison reform talks that Trump senior adviser and son-in-law Jared Kushner began last summer. Holden added that mental health and drug treatment, along with vocational training, need to happen inside prisons so inmates are prepared for life outside when they are released.

“I’m delighted that the president has made this a priority,” said Pat Nolan, director of the American Conservative Union Foundation’s Center for Criminal Justice Reform, which has also been in prison reform talks with the Trump administration. “I’ve been working since 1996 to help build a conservative movement in criminal justice reform, and this is a very important turning point.” Cohen and Nolan will not be at the Thursday session, but others from their organizations are attending....

Kushner’s Office of American Innovation is also working on an apprenticeship plan for released prisoners that could match inmates with employers, according to a conservative leader who has been working with the White House on the reforms, but it’s unclear whether that initiative will be announced Thursday.

Excluding organizations that are seen as liberal, like the ACLU or the NAACP, and leaving out sentencing reform was necessary to gain the support of “old guard conservatives” like U.S. Attorney General Jeff Sessions, who will also attend the meeting, the conservative leader said. “Reading the tea leaves, I think what they’ve done is sat down with Mr. Sessions and got him to agree to part of the reforms,” said the conservative leader, who requested anonymity in order to freely discuss the issue. He added that he expects White House Chief of Staff John Kelly to attend and that Housing Secretary Ben Carson and Labor Secretary Alexander Acosta came to previous meetings on the issue.

The White House did not respond to a request for comment late Wednesday evening.

Recent related post:

January 11, 2018 in Criminal justice in the Trump Administration, Prisons and prisoners, Reentry and community supervision, Who Sentences? | Permalink | Comments (4)

Tuesday, January 09, 2018

Making the case against juvenile sex offender registration requirements

Rebecca Fix has this new commentary that caught my eye under the headlined "Young Sex Offenders Shouldn’t Have to Register; It’s Ineffective and Hurts Everyone Around Them." The whole piece (and its many links) are worth checking out, and here is how it gets started:

Sex offender registration policies were initially developed for adults with sexual offenses, but have recently been extended to include youth with sexual offenses as well.  At first glance, sex offender registration and notification (hereafter referred to as SORN) may make us feel safer, produce relief knowing that these individuals are being punished.

However, many of us don’t realize that these practices don’t protect our children.  Required registration of and notification about youth with illegal sexual behavior, in particular, has resulted in serious economic and psychological burdens at multiple levels, affecting not only the youth who have to register (e.g., increase in suicidal ideation), but also their families (e.g., judgment from others, loss of job), neighbors (e.g., devaluation of home value) and communities (e.g., stress levels, potential changes in reputation).

Mental health providers and child advocates like myself and colleagues at the Moore Center for the Prevention of Child Sexual Abuse who have examined policies concerning sexual offending among youth know that SORN requirements stem from an ill-fitting classification system that has deleterious consequences.

January 9, 2018 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (3)

Monday, January 08, 2018

Interesting comments on reform and rehabilitation from Deputy AG Rosenstein

Deputy Attorney General Rod Rosenstein today delivered these lengthy remarks at the American Correctional Association's Winter Conference.  Folks interested in prison policies and practices, as well as the messages being delivered by the US Justice Department these days, should make time to  read the entire speech.  And sentencing fans (including students in the Sentencing class I start teaching today) may be especially interested in these interesting comments about reform and rehabilitation from the early part of the speech:

The American Correctional Association has a proud history of supporting the work of prison and jail officials.  More than 147 years ago, in 1870, corrections officials from the United States and abroad met in Cincinnati, Ohio and adopted a “Declaration of Principles” they believed should guide the field of corrections.  One of your principles is that the purpose of incarcerating criminals is “the protection of society.”

One of the most important management principles is that it is essential to articulate the big-picture goal for an organization.  That vision filters down into how other managers understand their mission, and ultimately into everything that our employees do. In law enforcement, our goal is to reduce crime.

Correctional agencies play a critical role in achieving that goal.  By providing inmates with structure, and teaching them discipline and skills during their incarceration, you increase the probability that they will become productive members of society and reduce the likelihood of recidivism.

When I read the original version of your principles, I noticed that the word “reform” appears 27 times.  The word “rehabilitate” does not appear at all.  Rehabilitation came into vogue as a sentencing goal in the 20th century.  Many people ultimately concluded that rehabilitation was not a realistic goal for prisons.

After spending almost three decades in law enforcement, I agree that we need to focus on reform of criminals, not rehabilitation.  The reason is that “re-habilitation,” by definition, is about restoring a person’s good reputation and ability to work.

There are some criminals for whom rehabilitation is a reasonable goal.  They are people who lived law-abiding lives and were productive members of society, before something went wrong and caused them to go astray.

But many of the career criminals housed in our prisons unfortunately were not properly habilitated before they offended.  The criminals who were not productive members of society need reform, not rehabilitation.

Admitting that most of our inmates need reform is not a way of disparaging the criminals.  It is instead a frank way to acknowledge that our task is more than just helping them overcome a few mistakes.  Many inmates do not just lack self-restraint.  They lack job skills.  They lack education.  They lack family structure.  They lack discipline.

While they are under governmental supervision, you have the chance to help them reform by imposing discipline and offering opportunities for improvement.  The most important thing for many inmates to learn is the discipline of following a schedule: wake up at a particular time, report to work when required, eat meals at the designated hours, and go to bed early enough to start fresh the next morning.

Some of the programs you offer also may be useful to reform inmates and set them on the right path. Programs such as institutional work assignments, prison industries, substance abuse treatment, and educational or vocational training.  Your work makes our communities safer.

The principles from 1870 also codify the professionalism that defines corrections officials.  They explain that “[s]pecial training, as well as high qualities of head and heart, [are] required to make a good prison or reformatory officer.”

January 8, 2018 in Criminal justice in the Trump Administration, Offender Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (1)

Sunday, December 24, 2017

Interesting (and sound?) outcome for juve who pled guilty to Slender Man stabbing

Serious crimes committed by young kids present a range of difficult sentencing issues, and a high-profile case of this variety was resolved on quite interesting terms last week.  This ABC News article, headlined "Teen who pleaded guilty in Slender Man stabbing case to remain in institutional care for 25 years, judge says," provide this account of the outcome:

A judge has sentenced one of the two Wisconsin teenagers accused of stabbing their friend in the woods to please the online fictional character Slender Man. Anissa Weier, 16, will now spend 25 years under a mental health institution’s supervision, with credit for her 1,301 days already spent in incarceration.  More than two years and six months of her sentence will be spent in a mental hospital before she can petition the court for release every six months.  If released, Weier will remain under institutional supervision until year 2039 and will be 37 years old.

“I just want everyone involved in this to know that I do hold myself accountable for this,” Weier told the court.  “I want everybody involved to know that I deeply regret everything that happened that day, and that I know that nothing I say is going to make this right, your honor, and nothing I say is going to fix what I broke.  I am just hoping that by holding myself somewhat accountable and making myself responsible for what I took part in that day, that I can be responsible and make sure this doesn’t happen again. I’m never going to let this happen again.”

Weier pleaded guilty earlier this year to attempted second-degree intentional homicide, as a party to a crime, with the use of a dangerous weapon as part of a plea deal.  A jury then found Weier not guilty by reason of mental disease or defect. Earlier this year the court also accepted a plea deal for co-defendant Morgan Geyser, who pleaded guilty to attempted first-degree intentional homicide.  In accordance with the plea deal, the court also found Geyser not guilty by reason of mental disease or defect despite her earlier guilty plea. Geyser’s sentencing is set for 2018.

In a victim impact statement, Stacie Leutner, mother of the stabbing survivor Payton Leutner, wrote that she and her family accept the plea deals but petitioned Judge Michael Bohren to “consider everything Payton and those closest to her have endured over the last three-and-a-half years” prior to the sentencing. In the victim impact statement, Stacie Leutner wrote that some of her daughter’s wounds from the attack still “tingle and ache and remind her of their presence every day.”...

“We accepted the plea deals for Morgan and Anissa for two reasons,” Stacie Leutner wrote. “First, because we believed it was the best thing to do to ensure Payton would not have to testify.  Traumatizing her further didn’t seem worth it. She has never talked about her attack so asking her to testify and relive her experience in front of a courtroom of strangers felt cruel and unnecessary. And second, because Payton felt placement in a mental health facility was the best disposition for both girls.”  Although she has accepted the plea deals, Stacie Leutner writes that her daughter “still fears for her safety.”

Weier and Geyser were arrested May 31, 2014, after the stabbing of Payton Leutner, whom they left in the woods in Waukesha, Wisconsin.  Leutner crawled to a nearby road and was helped by a passing bicyclist before she was hospitalized with life-threatening injuries but survived. Weier, Geyser and Payton Leutner were 12 years old at the time. Prosecutors have said that both girls were obsessed with the character Slender Man, who is often depicted in fan fiction stories online as a horror figure who stalks children.

In January, Weier's parents told “Good Morning America” that their daughter had expressed remorse. Her mother, Kristi Weier, said that according to police interview tapes of Geyser and her daughter, "They thoroughly believed that Slender Man was real and wanted to prove that he was real."

December 24, 2017 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (1)

Thursday, December 14, 2017

"Second Chance Reforms in 2017: Roundup of new expungement and restoration laws"

2017-Report-Cover-Image-791x1024The title of this post is the title of this notable new publication from the Collateral Consequences Resource Center documenting how states are, in various ways, expanding opportunities to avoid or mitigate the adverse effects of a criminal record. Here is the report's executive summary following the start of its "overview" section:

The national trend toward expanding opportunities for restoration of rights and status after conviction, first documented in Four Years of Second Chance Reforms, 2013 – 2016, has accelerated in 2017. In the past year, 23 states broadened existing second chance laws or enacted entirely new ones, enhancing the prospects for successful reentry and reintegration for many thousands of Americans.  Some of these laws significantly expanded the availability of relief, while others involved relatively minor changes to existing law.

The most frequent type of reform involved limiting public access to criminal records: new sealing or expungement laws were enacted in several states that previously had none, eligibility requirements were relaxed for many existing record-sealing authorities, and new limits were imposed on access to non-conviction and juvenile records -- all making it easier for more individuals to get relief at an earlier date.  However, there is remarkably little consistency among state record-closing schemes, and most states extend relief only to less serious offenses after lengthy eligibility waiting periods.  Moreover, eligibility criteria are frequently so complex as to defeat the sharpest legal minds. Other recurring reforms limit employer inquiries into criminal history at the application stage.  A few states enacted administratively enforceable standards for consideration of criminal history in employment and licensing. To date there has been very little empirical research into the relative effectiveness of different forms of relief, so it is perhaps not surprising that experimentation seems to be the order of the day.

This report documents changes in state restoration laws in 2017, many of which are quite significant.  It is based on research from the Restoration of Rights Project (RRP), an online resource maintained by the CCRC that catalogs and analyzes the restoration laws of all fifty states, the District of Columbia, and the federal system.  Following an overview of 2017 reforms, specific changes to the law in each state are briefly described along with relevant citations. More detailed information about each state’s laws is available in the RRP state profiles.

• In 2017, 23 states enacted laws aimed at reducing barriers faced by people with criminal records in the workplace and elsewhere.  Some of these laws significantly expanded the availability of relief, while others involved relatively minor changes to existing laws.

• Most of the new laws involved either restrictions on public access to records or limits on employer inquiries into criminal history.  A few states enacted administratively enforceable standards for consideration of criminal history in employment and licensing.

• Important new record-sealing schemes were enacted in Illinois, Montana and New York, and nine other states either relaxed eligibility requirements or otherwise supplemented their existing sealing or expungement authorities to make relief more broadly available at an earlier date.  Of these nine, the most ambitious reforms were enacted by Nevada, which was one of several states that created a presumption in favor of relief for eligible persons.

• Seven states enacted substantial revisions to their juvenile expungement and sealing laws in 2017, some of which require courts to order relief automatically after a brief waiting period.

• Ten states enacted state-wide “ban-the-box” laws limiting inquiries into criminal record by public employers at preliminary stages of the hiring process.  California, Connecticut and Vermont extended these limits to private employers as well.

• In California and Nevada, restrictions on application-stage inquiries are part of a broader nondiscrimination scheme that prohibits consideration of certain kinds of criminal records, and establishes standards for individualized determinations in all other cases.  Both states provide additional procedural protections.

• While reforms are moving at a fast pace, there is no consensus about the most effective way to avoid or mitigate the adverse effects of a criminal record, and very little relevant empirical research.

December 14, 2017 in Collateral consequences, Data on sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (2)

Monday, December 11, 2017

"Graduating Economic Sanctions According to Ability to Pay"

The title of this post is the the title of this new and timely article authored by Beth Colgan now available via SSRN. Here is the abstract:

There is growing recognition that economic sanctions — fines, surcharges, fees, and restitution — are routinely imposed at rates many people have no meaningful ability to pay, which can exacerbate financial instability and lead to the perception that economic sanctions are unfairly punitive to people of limited means.  Concerns triggered primarily by highly punitive tactics, including incarceration and long-term probation of low-income debtors for the failure to pay, have led to increasing calls for reform.  While much attention is now being paid to the back-end of the system, and particularly limitations on punitive responses for the failure to pay due to poverty, this Article considers the problem from the front-end.  In particular, this Article focuses on a potential reform with increasing bipartisan support: the graduation of economic sanctions according to a person’s financial circumstances.

To that end, this Article explores several key considerations essential to designing a system of graduation, relying heavily on a largely-forgotten experiment in seven geographically, demographically, and politically diverse jurisdictions in the United States with the “day-fine.”  A day-fine is calculated using a penalty unit assigned based on the seriousness of the offense of conviction.  The penalty unit is then multiplied by the defendant’s adjusted daily income to determine the day-fine amount.  The result is an economic sanction adjusted to offense seriousness and simultaneously graduated to the defendant’s financial condition.  This Article mines the historical record of the American day-fines experiments — complemented by recent interviews with people involved in the design and implementation of the projects and experiences with means-adjustment in the consumer bankruptcy, tax, and public benefits contexts — for lessons on the design of graduating economic sanctions.  What emerges from this review is promising evidence that a properly designed and implemented system for graduation is consistent with efficient court administration, revenue generation, and equality in sentencing. 

December 11, 2017 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (1)

Thursday, December 07, 2017

"The Effects of Aging on Recidivism Among Federal Offenders"

The title of this post is the title of this notable new report released today by the US Sentencing Commission. Here is how the USSC describes the report and its highlights on this webpage:

The Effects of Aging on Recidivism Among Federal Offenders is the fourth report in a series examining a group of 25,431 federal offenders who were released from prison or placed on probation in calendar year 2005. This report analyzes the impact of the aging process on federal offender recidivism and, once age is accounted for, the impact of other offense and offender characteristics. The findings included in this report build on those in the Commission’s 2016 Recidivism Overview report. (Published December 7, 2017)...

Report Highlights

Older offenders were substantially less likely than younger offenders to recidivate following release.  Over an eight-year follow-up period, 13.4 percent of offenders age 65 or older at the time of release were rearrested compared to 67.6 percent of offenders younger than age 21 at the time of release.  The pattern was consistent across age groupings, and recidivism measured by rearrest, reconviction, and reincarceration declined as age increased.

For federal offenders under age 30 at the time of release, over one-fourth (26.6%) who recidivated had assault as their most common new charge.  By comparison, for offenders 60 years old or older at the time of release, almost one quarter (23.7%) who recidivated had a public order offense6 as their most serious new charge.

Age and criminal history exerted a strong influence on recidivism.  For offenders in Criminal History Category I, the rearrest rate ranged from 53.0 percent for offenders younger than age 30 at the time of release to 11.3 percent for offenders age 60 or older.  For offenders in Criminal History Category VI, the rearrest rate ranged from 89.7 percent for offenders younger than age 30 at the time of release to 37.7 percent for offenders age 60 or older.

Education level influenced recidivism across almost all categories.  For example, among offenders under age 30 at the time of release, college graduates had a substantially lower rearrest rate (27.0%) than offenders who did not complete high school (74.4%).  Similarly, among offenders age 60 or older at the time of release, college graduates had a somewhat lower rearrest rate (11.6%) than offenders who did not complete high school (17.2%).

Age exerted a strong influence on recidivism across all sentence length categories.  Older offenders were less likely to recidivate after release than younger offenders who had served similar sentences, regardless of the length of sentence imposed.  In addition, for younger offenders there was some association between the length of the original federal sentence and the rearrest rates, as younger offenders with sentences of up to six months generally had lower rearrest rates than younger offenders with longer sentences. However, among all offenders sentenced to one year or more of imprisonment, there was no clear association between the length of sentence and the rearrest rate.

For certain major offense types, the type of federal offense that offenders had committed also had an effect on recidivism across age groups.  For example, firearms offenders had a substantially higher rearrest rate across all age categories than drug trafficking offenders, who in turn had a higher rearrest rate across all age categories than fraud offenders.  For example, for offenders under age 30 at the time of release, the rearrest rates were 79.3 percent (firearms), 62.5 percent (drug trafficking), and 53.6 percent (fraud).  Similarly, for offenders age 60 and older at the time of release, the rearrest rates were 30.2 percent (firearms), 17.5 percent (drug trafficking), and 12.5 percent (fraud).

At every age group, federal prisoners had a substantially lower recidivism rate than state prisoners who also were released in 2005 and tracked by the Bureau of Justice Statistics.  For example, for offenders age 24 or younger at the time of release, 63.2 percent of federal prisoners were rearrested within five years compared to over four-fifths (84.1%) of state prisoners.  Like federal prisoners, older state prisoners were less likely to recidivate than younger state prisoners.

December 7, 2017 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Reentry and community supervision | Permalink | Comments (2)

Friday, December 01, 2017

Looking into the politics and personnel of state-level criminal justice reforms

The December 2017 issue of the ABA Journal has this lengthy article on state-level reform efforts, giving particular attention to recent reforms in Louisiana and Alaska. In the magazine the article has the headline "“Rallying for Reform: Criminal justice reform may be languishing at the federal level, but it’s becoming a reality in the states with bipartisan support," and here is an excerpt:

Adam Gelb, director of the Pew Charitable Trusts’ Public Safety Performance Project, says 36 states have enacted some kind of criminal justice reform — eight of them more than once — over the past 10 years.

And although those reforms can be a struggle to get through legislatures, they tend to win approval — even in “red” states such as Louisiana — because they have bipartisan support. They bring together legislators with diverse backgrounds and interests, including controlling crime, reducing corrections costs, embracing religious ideas about redemption, reducing the size of government, grappling with the effect of imprisonment on families and minority communities, and questioning the morality of locking up so many people.

“The reason that it is so bipartisan and cross branch is that it meets many objectives,” says Alison Lawrence, Criminal Justice Program director for the National Conference of State Legislatures. “I would say behind all of it, everybody cares about public safety, and that’s the underlying factor.”...

According to the Urban Institute, which studies the outcomes of justice reinvestment, achieving a better return can be met in several ways.  Reducing sentences, in a thoughtful and politically palatable way, is one component.  But so are reducing the number of people held in lieu of bail and the time they’re held, expanding eligibility for parole and other ways to be released from prison, and providing alternatives to prison for probation and parole violations.

By reducing the number of prisoners, states save money — often hundreds of millions of dollars.  Then, states “reinvest” some of that money in programs they believe will reduce crime, and therefore the need for prisons.  That includes prison-based re-entry or job training programs, more probation and parole officers, and grants to community groups that help with re-entry-related problems like mental health and substance abuse.  States may also lift the legal restrictions they place on former offenders, such as eligibility for professional licenses.

States are receptive, Gelb says, in part because they’ve seen the success of earlier adopters — especially Texas, which is the widely acknowledged godfather of justice reinvestment.  In 2007, the Texas Department of Public Safety, which handles corrections, anticipated that it would need 14,000 to 17,000 more prison beds over the next five years.  So it asked the legislature for $2 billion.  Legislators blanched at that cost and instead tried to make the new prison beds unnecessary by spending $241 million on behavioral health and alternative sanctions programs.

Ten years — and several more bills — later, Texas has actually closed several prisons.  State authorities estimate that Texas has reduced its incarceration rate by 20 percent and its crime rate by 30 percent, all while avoiding $4 billion in costs.  It’s also become a model for other states, particularly its Southern neighbors.

December 1, 2017 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4)

Wednesday, November 29, 2017

"Disrupting the Cycle: Reimagining the Prosecutor’s Role in Reentry - A Guide to Best Practices"

The title of this post is the title of this big new report from the NYU Center on the Administration of Criminal Law.  Here is the report's executive summary:

The report provides concrete recommendations that prosecutors can implement in order to focus on reentry and target the risk of recidivism.  The report proceeds in four parts:

PART I focuses on reforms that prosecutors can implement at the “front end” of the process, including considering how prosecutorial discretion at various stages of a criminal case can impact defendants’ risk of recidivism and affect their reentry process.  This includes using discretion to make screening and charging decisions, considering diversion and other alternatives to incarceration, supporting pretrial release of defendants where appropriate, and considering the use of creative sentencing alternatives;

PART II focuses on reforms that prosecutors can implement at the “back end” of the process to begin preparing for an incarcerated individual’s eventual reentry to their community.  This includes prerelease reentry planning, and removing barriers that interfere with their ability to reintegrate into their communities, such as obtaining identification and drivers’ licenses, providing them opportunities to expunge their convictions and reduce fines that may burden them upon release, and collaborating with employers and community-based resources;

PART III focuses on the prosecutor as office leader and highlights office-wide reforms that can shift office culture to include anti-recidivism concerns as part of a broader focus on public safety; and

PART IV focuses on the prosecutor’s role in the larger community and how he or she can use his or her power to engage a diverse group of stakeholders in outreach and education initiatives, including legislative reforms designed to target recidivism at the front and back ends of the justice system.

November 29, 2017 in Collateral consequences, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (1)

Friday, November 17, 2017

"The Criminal Justice System Stalks Black People Like Meek Mill"

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

This month Meek Mill was sentenced to two to four years in prison for violating his probation. #FreeMeek hashtags have sprung up, and hundreds of his fans rallied near City Hall in Philadelphia to protest the ruling.

On the surface, this may look like the story of yet another criminal rapper who didn’t smarten up and is back where he started. But consider this: Meek was around 19 when he was convicted on charges relating to drug and gun possession, and he served an eight-month sentence.  Now he’s 30, so he has been on probation for basically his entire adult life. For about a decade, he’s been stalked by a system that considers the slightest infraction a justification for locking him back inside.

What’s happening to Meek Mill is just one example of how our criminal justice system entraps and harasses hundreds of thousands of black people every day.  I saw this up close when I was growing up in Brooklyn during the 1970s and 1980s. Instead of a second chance, probation ends up being a land mine, with a random misstep bringing consequences greater than the crime. A person on probation can end up in jail over a technical violation like missing a curfew.

Taxpayers in Philadelphia, Meek Mill’s hometown, will have to spend tens of thousands of dollars each year to keep him locked up, and I bet none of them would tell you his imprisonment is helping to keep them safer. He’s there because of arrests for a parole violation, and because a judge overruled recommendations by a prosecutor and his probation officer that he doesn’t deserve more jail time....

Look at what he’s being punished for now: In March, he was arrested after an altercation in a St. Louis airport. After video of what had actually happened was released, all charges were dropped against Meek. In August, he was arrested for popping a wheelie on a motorcycle on his video set in New York.  Those charges were dismissed after he agreed to attend traffic school. Think about that.  The charges were either dropped or dismissed, but the judge sent him to prison anyway....

[I]t’s time we highlight the random ways people trapped in the criminal justice system are punished every day. The system treats them as a danger to society, consistently monitors and follows them for any minor infraction — with the goal of putting them back in prison.

As of 2015, one-third of the 4.65 million Americans who were on some form of parole or probation were black. Black people are sent to prison for probation and parole violations at much higher rates than white people.  In Pennsylvania, hundreds of thousands of people are on probation or parole.  About half of the people in city jails in Philadelphia are there for probation or parole violations.  We could literally shut down jails if we treated people on parole or probation more fairly....  Probation is a trap and we must fight for Meek and everyone else unjustly sent to prison.

Prior related post:

November 17, 2017 in Celebrity sentencings, Criminal Sentences Alternatives, Prisons and prisoners, Procedure and Proof at Sentencing, Race, Class, and Gender, Reentry and community supervision | Permalink | Comments (7)

Thursday, November 16, 2017

"Justice reform is real and conservative governors are leading the way"

The title of this post is the headline of this recent Fox News commentary authored by Kentucky Governor Matt Bevin.  Here are excerpts:

During the 2016 Republican National Convention in Cleveland, I participated in a national panel on criminal justice reform with like-minded, conservative governors Nathan Deal of Georgia and Mary Fallin of Oklahoma.  It was an honor for me to discuss how best to create second chance opportunities with these two veterans of criminal justice reform.

When I was elected as governor in 2015, it was my intention that Kentucky would also be making significant changes to our criminal justice system. That is exactly what we have been doing.  With a rising prison population, severely depleted workforce participation rates, and the highest percentage in the nation of children with at least one incarcerated parent, we unfortunately had plenty of room for improvement. For years Kentucky had maintained an outdated, “lock-em-up and throw away the key” approach. That was unsustainable from both a societal and financial cost and we were determined to shake up the status quo.

Transforming our justice systems, supporting policies that safely reduce our jail and prison populations, putting ex-offenders back to work, creating safer communities—doing what is right for the people we represent is not a political statement. We began by making it easier for formerly incarcerated people to get back to work, passing a comprehensive felony expungement bill that allows certain former offenders, who have been crime-free for five years, to wipe their slates clean.  We also passed a bold reentry initiative that provides for more job training and eliminates regulatory barriers to employment for people with criminal records.

Our administration implemented “ban the box” for state government agencies to give ex-offenders a fair shot at employment, and launched the “Justice to Journeyman” initiative, which paves a pathway for inmates and detained youth to earn nationally recognized credentials in a skilled trade.  Kentucky’s success as the center for engineering and manufacturing excellence in America is only being enhanced as we pioneer changes in criminal justice policy....

I ... encourage ... all governors to tackle criminal justice reform policy with a sense of urgency and purpose. Some political advisors still speak passionately about being “tough on crime”, and caution that supporting criminal justice reform policy could be politically dangerous at election time.

This is a ridiculous notion. After all, more than 90 percent of those now incarcerated will eventually re-enter society.  We either pave a path towards second opportunities or we settle for recidivism. Which is better for our communities?

If we want voters to continue electing conservatives, we must offer serious solutions. We can no longer afford to cling to the outdated idea that prison alone is the only way to hold people accountable for their crimes.  Instead, we need to take a smarter, more measured approach to criminal justice.  More than simply removing lawbreakers from society, we must also rehabilitate and re-assimilate them back into society.

In the midst of national division in many fronts, a community of conservative governors are uniting to build trust and offer real solutions to some of our country’s greatest problems.  Transforming our justice systems, supporting policies that safely reduce our jail and prison populations, putting ex-offenders back to work, creating safer communities — doing what is right for the people we represent is not a political statement.

America has always been a land of opportunity and second chances.  When we hold individuals fully accountable for their actions while treating them with respect in the process, all of society benefits.

November 16, 2017 in Elections and sentencing issues in political debates, Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2)

New report asserts California could and should cut its prison population by another 30,000

SquarelogoThis notable report by Californians for Safety and Justice, titled "Safe and Sound: Strategies to Save a Billion in Prison Costs and Build New Safety Solutions," makes the case that California could and should reduce its prison population by another 30,000 in order to close prisons and free up resources to spend on drug rehabilitation, mental health, job training and other programs. Here is an excerpt from the long report's executive summary:

Between 2006 and 2016, California has seen: A 25% drop in state prison incarceration.  A 10% statewide average drop in county jail populations.  A 64% drop in the number of people on state parole and a 22% drop in the number of felony filings in criminal courts annually.  Today more than 1.5 million Californians are eligible to remove nonviolent felony convictions from their old conviction records — opening the door to new opportunities for stability and empowerment. Rehabilitation programs are becoming more available to people in the justice system to help stop the cycle of crime. Trauma recovery centers are expanding across the state — from just one five years ago to eleven centers today—providing crisis care and help for underserved survivors of violent crime.  And, with the incarceration declines, hundreds of millions of dollars are finally being reallocated from bloated, costly prisons to community-based treatment and prevention....

Despite this progress, the Golden State’s incarceration rate is still so high that it remains a historic anomaly. California still spends more than $11 billion a year on state prisons.  That’s a 500% increase in prison spending since 1981.  In fact, California spends as much today on prisons as every state in the United States combined spent on prisons in 1981 and it has increased annual prison spending at a rate that has significantly outpaced other states.  When local crime response costs in California are factored in, such as the cost of county jails, that figure is nearly doubled from $11 billion to $20 billion annually....

In the next five years, California leaders must commit to further reducing state incarceration and prison spending to finally achieve a balanced approach to public safety.  If California leaders can continue to rightsize the state’s incarceration rate — and substantially reduce prison spending — the state would have increased capacity to invest in new safety solutions that more effectively support people vulnerable to crime, prevent crime from happening in the first place and stop the cycle from continuing.

This report outlines the strategies available to local jurisdictions to reduce the flow of people into the justice system and the burdens local criminal justice systems face. It also describes the sentencing and prison length of stay reforms that can continue to safely reduce the number of people in state prison, strategies that are supported by data on what works to reduce recidivism.

If state leaders implement the sentencing and prison length of stay reforms outlined in this report, the state could safely reduce the length of prison terms for the majority of people in prison by 20%, and reduce the number of people in state prison by about 30,000.

November 16, 2017 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (0)

Monday, November 13, 2017

Might last week's voting results in Virginia help lead to voting rights for everyone, including those with criminal records?

The question in the title of this post is prompted by this extended HuffPost piece headlined "Democrats Just Won A Massive Victory For Voting Rights In Virginia." Here are excerpts:

On a night of Democratic victories, one of the most significant wins came in Virginia, where the party held onto the governor’s mansion. Democratic governor-elect Ralph Northam’s victory will enable him to expand voting rights to disenfranchised people and exert some control over the redistricting process.

The election had high stakes for voting rights. Virginia strips people of their right to vote if they are convicted of a felony, and those rights can only be restored by the governor. Gov. Terry McAuliffe (D) moved aggressively to restore rights to more than 168,000 former felons ― a policy Northam has said he is proud of and will continue.

In 2016, the nonprofit Sentencing Project estimated there were 508,680 people in Virginia who remained disenfranchised because of a felony conviction, meaning hundreds of thousands more could benefit from Northam’s policies. More than 1 in 5 people disenfranchised in the commonwealth because of a felony conviction were African-American, according to the organization....

Expanded voting rights restoration will benefit people like LaVaughn Williams and Brianna Ross, who are in their 50s and lost their right to vote decades ago, when they were convicted of felonies. Both women had their rights restored in the last year and voted for the first time in their lives on Tuesday, something they said made them feel like equal citizens. “If you had asked me maybe a year and a half, almost two years ago, I would’ve said ‘No,’ I didn’t never think I would vote,” Williams said on Tuesday after voting.

“Government and governors have come to the conclusion that even though we have not done a lot of good things in our lifetime, as far as I’m concerned, they have decided that they will put those past mistakes in the past and give us that second chance,” she said. “That’s all any person that’s an ex-felon can hope for, that second chance. Me getting my rights back is that second chance.”...

Voting rights became an important issue in the race after Northam’s Republican opponent, Ed Gillespie, used highly misleading television advertisements to criticize the policy of restoring voting rights to former felons. Gillespie also personally oversaw the Republican effort to win state legislators and draw electoral boundaries to the party’s advantage in 2010. The high stakes attracted attention from voting groups like Let America Vote and Holder’s National Democratic Redistricting Committee.

“Ralph Northam’s win tonight is a victory for every Virginian, a victory for the Democratic movement resisting President Trump’s disastrous administration and a victory for the protection of voting rights everywhere,” Jason Kander, the former Missouri secretary of state and president of Let America Vote, said in a statement. “Ralph made his defense of voting rights a campaign priority,” Kander said. “Virginians took notice, which is why they came from all over the commonwealth to join Let America Vote and many other groups to get out the vote.”

Though I am not aware of any exit polling that suggests that Northam swayed a large number of voters with his advocacy for voting rights, I suspect that Gilllespie's attack on restoring voting rights to former felons would have been given too much credit if he had secured a come-from-behind win. More generally, in a nation that rightly takes pride in democratic governance, I am ever hopeful that advocacy for expanding the franchise can and will generally prevail over advocacy for restricting the franchise.

Because I have long thought that the biggest problem with democracy in the US results from too few rather than too many people voting, I continue to adhere to the positions developed here in support of allowing even incarcerated felons the right to political participation through the voting booth. In this context, it is worth recalling that we fought a war for independence based in part on the slogan "no taxation without representation." In that tradition, I think until we hear someone making the case for felons to be exempt from taxation, we ought in turn be ever-suspicious of the case for preventing felons from voting.

November 13, 2017 in Collateral consequences, Reentry and community supervision, Who Sentences? | Permalink | Comments (5)

Saturday, November 11, 2017

"Roughly one in 12 people in America’s prisons and jails is a veteran"

Veterans-day-thank-you-quotesThe title of this post is one of a number of notable facts reviewed in this new webpage up at Families Against Mandatory Minimums. The page carries the simple heading "Veterans Day," and here are excerpts:

Kenny. Ronald. Warren. Michael. All of these men served in our country’s Armed Forces.  Between them, their service extended to all branches of the military and earned them several Purple Hearts and other distinctions. They served bravely and with courage, and we honor them and all veterans today.

Ronald, Michael, Warren, and Kenny are also prisoners and former prisoners.  Roughly one in 12 people in America’s prisons and jails is a veteran.  Often, they’ve ended up in prison because of behavior resulting from injuries and trauma sustained during service.  Many are serving absurdly long sentences for low-level drug offenses, having turned to drugs as a way of coping with PTSD and adjusting to life after tours of duty.  And almost always, they are forgotten on this solemn day.

Our message today is simple:

  • Judges need discretion at sentencing to consider the reasons our country’s veterans ended up on the wrong side of the law.
  • The evidence of America’s failed war on drugs is in heartbreaking relief when you consider the lives of veterans— who put their lives on the line for our country — now serving inhumane mandatory minimum sentences.
  • The service to our country of incarcerated veterans is no less appreciated because of your incarceration. You are not forgotten. Thank you for your service.

Some sobering facts to think about today:

  • More than 75 percent of incarcerated veterans received honorable discharges from the military.
  • An estimated two thirds of those serving prison sentences discharged from service between 1974 and 2000, a period spanning several wars including Vietnam, the Gulf War, Iraq, and Afghanistan.
  • Of the total number of persons incarcerated, about half were diagnosed with a mental disorder, frequently Post Traumatic Stress Disorder (PTSD).
  • Sixty-four percent of incarcerated veterans have been sentenced for violent offenses, as opposed to only 48 percent of other prisoners. (That single fact has resulted in both longer and harsher sentences for veterans.)

Some good news:

  • Overall, the veteran prison population has shrunk.
  • As both the Veterans Administration and the courts have begun to understand this particular issue, the situation for veterans has improved. The veteran prison population has dropped as the Veterans Administration works to provide outreach and support to returning vets, including the provision of Veterans Justice Outreach Specialist.
  • Probation officers and corrections staff are being trained to immediately identify veterans upon sentencing, and then to connect the veteran with a Veterans Justice Outreach Specialist who can advise and support the veteran.

November 11, 2017 in Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (5)

Thursday, October 19, 2017

What may be the future of federal halfway houses in the Trump Administration?

The question in the title of this post is prompted by this Reuters article from last week that a helpful reader made sure I did not miss.  The article is headlined "Trump administration reduces support for prisoner halfway houses," and here are excerpts:

The administration of President Donald Trump has been quietly cutting support for halfway houses for federal prisoners, severing contracts with as many

The Federal Bureau of Prisons spokesman Justin Long confirmed the cuts in response to an email inquiry from Reuters, and said they only affect areas with small populations or underutilized centers. “The Bureau remains firmly committed to these practices, but has had to make some modifications to our programs due to our fiscal environment,” Long said.

Halfway houses have been a part of the justice system since the 1960s, with thousands of people moving through them each year. For-profit prison companies such as Geo Group Inc have moved into the halfway house market, though many houses are run directly by government agencies or non-profit organizations. A Geo spokeswoman declined to comment for this article.

The bureau, which falls under the U.S. Department of Justice, last year had about 180 competitive contracts with “residential reentry centers” run by non-profit and for-profit companies, such as Geo. The International Community Corrections Association says on its website there were about 249 separate halfway houses in communities nationwide that are covered by the 180 contracts.

Federal judges who spoke to Reuters said the cuts are having an impact in their districts, particularly in states with fewer facilities or larger geographic areas where the nearest center might be several hundred miles away. Judge Edmund Sargus of the Southern District of Ohio said it was a real “stumper” when in July the government ended its contract with the Alvis facility serving the Dayton area.

Long said that the cuts have not reduced referral rates or placements, and only impact “about 1% of the total number of beds under contract.”...

In 2016, of the 43,000 inmates released from federal prison, 79 percent were released into a halfway house or home confinement, according to the trade association.

“We need to improve re-entry services ... This move flies in the face of that consensus,” said Kevin Ring, whose non-profit Families Against Mandatory Minimums has recently launched a Twitter campaign to raise awareness of the problem....

For Kymjetta Carr, the cuts have had a personal impact. The 30-year-old from Cincinnati said she had expected her fiance Anthony Lamar to get out of prison and go to a halfway house in November, after serving seven years on a drug charge. But she now has to tell their 10-year-old son his father won’t be out for Christmas or his birthday because Lamar’s release to a halfway house will not come until late July. “It seems like the rug has been pulled out from under us,” she said, in an interview arranged through Families Against Mandatory Minimums, a nonprofit advocacy group.

Halfway houses are low-security residences for thousands of convicted prisoners serving alternative sentences or on release from prison into partial freedom programs on the outside. The facilities are meant to help prisoners reenter their communities, find a job and get their lives back on track. A study commissioned last year by the Justice Department found that centers have come under greater strain in recent years, as more people have been released from prison.

Blair Campmier, executive director of Reality House in Columbia, Missouri, said he was notified in early June that the center’s eight-year-old contract would be terminated. Some of his clients were sent to halfway houses in Kansas City and Springfield, more than two hours away. “They were not happy, and their families were not happy,” said Campmier.

Ricardo Martinez, the Chief U.S. District Judge in the Western District of Washington and Chairman of the Committee on Criminal Law of the Judicial Conference of the United States, told Reuters he has sent a letter to the Bureau of Prisons’ new Director Mark Inch requesting discussions. “From our perspective, these facilities are not only useful - they are essential,” Martinez said.

October 19, 2017 in Criminal justice in the Trump Administration, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Wednesday, October 18, 2017

Reviewing how federal prisons deny rehabilitative programming to undocumented prisoners

Jacob Schuman, a federal public defender, has this new Marshall Project commentary examining federal Bureau of Prisons policies that deny access to rehabilitative programs to a certain notable prison population.  The piece provides a review of policies that are scattered in complicated program statements that can often escape scrutiny.  The piece is fully headlined "Federal Prisons Don’t Even Try to Rehabilitate the Undocumented: The Bureau of Prisons fails to provide basic resources to undocumented prisoners." Here is how it starts:

The federal Bureau of Prisons claims its mission is to “provide work and self-improvement opportunities to assist offenders in becoming law-abiding citizens.” When it comes to undocumented offenders, that’s a lie.

The truth is that the BOP discriminates against undocumented people by denying them access to essential drug counseling and job training in prison.

As President Trump threatens to lock up even more undocumented immigrants, it’s time for the BOP to reform these exclusionary policies, which are both ineffective and inhumane.

The U.S. Sentencing Commission reports that about one-third of all the people sent to federal prison each year are “illegal aliens.” In 2016, more than half of all federal criminal prosecutions involved immigration-related offenses.

Despite the BOP’s rehabilitative promises, the agency excludes these prisoners from its best addiction and vocational programs. The BOP officially bars any prisoner subject to an order of deportation from participating in its “most intensive,” nine-month Residential Drug Abuse Program, as well as from its compensated job-training program, Federal Prison Industries.The BOP similarly shuts out undocumented prisoners from its reentry-focused Release Preparation Program and even from its faith-based Life Connections Program.

The BOP strictly limits the access of undocumented prisoners to its other rehabilitative services. For example, some prisons offer occupational education programs intended to teach inmates marketable skills, but regulations specify that undocumented prisoners may only participate if resources permit after “meeting the needs of other eligible inmates.”

The BOP’s three-month Nonresidential Drug Abuse Program doesn’t officially exclude undocumented prisoners, but officials still sometimes prevent prisoners from participating if they’re subject to deportation.

The only remaining rehabilitative programs are a short drug abuse education course as well as a few literacy and English classes. (Unlike other incarcerated people, however, prisoners subject to deportation aren’t required to attend.)

Even the few programs theoretically open to undocumented people are, in practice, denied to many because the government primarily incarcerates them in for-profit facilities that aren’t required to offer rehabilitative services.

October 18, 2017 in Prisons and prisoners, Reentry and community supervision, Who Sentences? | Permalink | Comments (6)

Thursday, October 12, 2017

Big new report provides state-by-state guide to expungement and rights restoration

Report-coverAs detailed in this new post over at the Collateral Consequences Resource Center, the folks at CCRC have just published this big new report on state expungement and rights restoration practices under the title "Forgiving and Forgetting in American Justice: A 50-State Guide to Expungement and Restoration of Rights." This CCRC post provides this account of the new report's coverage and goals:

This report catalogues and analyzes the various provisions for relief from the collateral consequences of conviction that are now operating in each state, including judicial record-sealing and certificates of relief, executive pardon, and administrative nondiscrimination statutes. Its goal is to facilitate a national conversation about how those who have a criminal record may best regain their legal rights and social status.

Given the millions of Americans who have a criminal record, and the proliferation of laws and policies excluding them from a wide range of opportunities and benefits, there is a critical need for reliable and accessible relief provisions to maximize the chances that these individuals can live productive and law-abiding lives after completion of their court-imposed sentences. Whatever their form, relief provisions must reckon with the easy availability of criminal records, and the pervasive discrimination that frustrates the rehabilitative goals of the justice system.

It is not the report’s purpose to recommend any specific approach to relief. Rather, our goal is simply to survey the present legal landscape for the benefit of the policy discussions now underway in legislatures across the country. We are mindful of the fact that very little empirical research has been done to measure outcomes of the various schemes described, many of which are still in their infancy. It is therefore hard to say with any degree of certainty which approach works best to reintegrate individuals with a record into their communities. At the same time, we hope that our description of state relief mechanisms will inform the work of lawyers and other advocates currently working to assist affected individuals in dealing with the lingering burdens imposed by an adverse encounter with the justice system.

The title of the report provides a framework for analyzing different types of relief provisions. For most of our history, executive pardon constituted the principal way that persons convicted of a felony could “pay their debt to society” and regain their rights as citizens. This traditional symbol of official forgiveness was considered ineffective by mid-20th century reformers, who sought to shift responsibility for restoration to the courts. The reforms they proposed took two quite different approaches: One authorized judges to limit public access to an individual’s record through expungement or sealing, and the other assigned judges something akin to the executive’s pardoning role, through deferred dispositions and certificates of relief. These two approaches to restoration have existed side by side for more than half a century and have never been fully reconciled.

Today, with a new focus on reentry and rehabilitation, policy-makers are again debating whether it is more effective to forgive a person’s past crimes (through pardon or judicial dispensation) or to forget them (through record-sealing or expungement). Despite technological advances and now-pervasive background-checking practices, many states have continued to endorse the forgetting approach, at least for less serious offenses and records not resulting in conviction. At the same time, national law reform organizations have proposed more transparent judicial forgiving or dispensing mechanisms. While the analytical model of “forgiving v. forgetting” is necessarily imperfect given the wide variety of relief provisions operating in the states, it seems to capture the basic distinction between an approach that would mitigate or avoid the adverse consequences of past crimes, and an approach that would limit access to information about those crimes.

The report organizes relief provisions into six categories: executive pardon, judicial record-closing, deferred adjudication, certificates of relief, fair employment and licensing laws, and restoration of voting rights. The judgments made about the availability of each form of relief, reflected in color-coded maps, are in many cases necessarily subjective, and we have done our best to explain our approach in each case.

More detailed information about different forms of relief is available from the state-by-state summaries that are the heart of the report. Citations to relevant laws and comparisons of the laws of each state are included in the 50-state charts in Appendices A & B. Up-to-date summaries and charts are available from the Restoration of Rights Project, which additionally includes in-depth discussions of the law and policy in its state-by-state “profiles.” This information is updated by the authors on a real-time basis, and we expect to republish this report from time to time when warranted by changes in the law.

October 12, 2017 in Clemency and Pardons, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (1)

Thursday, September 28, 2017

Yale Law School clinic report looks at "Parole Revocation in Connecticut: Opportunities to Reduce Incarceration"

A helpful reader alerted me to this new report released by The Criminal Justice Clinic at Yale Law School.  This press release from the school's website provides some background and a kind of summary of the report, which carries the title "Parole Revocation in Connecticut: Opportunities to Reduce Incarceration":

A new report highlights opportunities for the State of Connecticut to reduce the high rate of incarceration attributable to its parole revocation process. The report was written by the Samuel Jacobs Criminal Justice Clinic (“CJC”) at Yale Law School.

The report details the findings of a research project that began in the fall of 2015 after Governor Dannel Malloy announced the Second Chance Society initiative.  To support that initiative, CJC agreed to undertake a study of parole revocation in Connecticut to explore ways to reduce incarceration and to facilitate the reintegration of parolees into society....

As part of the CJC study, students and faculty personally observed 49 parole revocation hearings in Connecticut in November 2015.  Shortly after these observations, they reported the following findings to state officials:

  • The Board of Pardons and Paroles (BOPP) revoked parole in 100% of the observed cases.
  • BOPP imposed a prison sanction in 100% of observed cases.
  • Nearly all parolees in the observed cases waived their due process rights in the parole revocation process.
  • No parolee appeared with appointed counsel, even though several parolees seemed clearly to qualify for state-provided counsel under the constitutional standard.
  • The typical procedures at parole revocation hearings made it difficult for parolees to contest disputed facts or to present mitigating evidence. Without counsel, incarcerated parolees did not have a meaningful opportunity to develop evidence in support of their claims.

In 2016, CJC administered a follow-up survey to parolees whose hearings it had observed.  The survey revealed that most parolees did not understand the rights that they had waived during the parole revocation process.  The survey also revealed that 79% of the parolees interviewed had lost jobs as a consequence of parole revocation....

Over the last two years, BOPP has begun to implement reforms to its parole revocation practices in response to the CJC study. In 2017, BOPP asked that CJC present additional recommendations in writing, which led to the release of this report.

September 28, 2017 in Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Saturday, September 23, 2017

"Mitigating America’s Mass Incarceration Crisis Without Compromising Community Protection: Expanding the Role of Rehabilitation in Sentencing"

The title of this post is the title of this new paper posted to SSRN authored by Mirko Bagaric, Gabrielle Wolf and William Rininger. Here is the abstract:

The United States is in the midst of an unprecedented mass incarceration crisis.  Financially, this is no longer readily sustainable, even for the world’s largest economy.  Further, the human suffering that prison causes is no longer tolerable from the normative perspective.  Nevertheless, lawmakers have failed to propose or adopt coherent or wide-ranging reforms to mitigate this crisis.  The crisis has emerged over the past forty years largely as a result of the emphasis on community protection as the most important objective of sentencing and the fact that the primary means of pursuing community protection during this period has been incapacitation in the form of imprisonment.

In this Article, we argue that policy makers and courts took a profoundly wrong turn by equating community protection almost solely with incapacitation.  A more progressive and often effective means of protecting the community is by rehabilitating offenders.  In theory, rehabilitation is a widely endorsed sentencing objective, so it should already influence many sentencing outcomes, but the reality is otherwise.  Rehabilitation is rarely a dominant or even weighty consideration when courts sentence offenders.  This is attributable, at least in part, to skepticism regarding the capacity of criminal sanctions to reform offenders.  This approach is flawed.  Empirical data establishes that many offenders can be rehabilitated.

In this Article, we argue that sentencing courts should place greater weight on the objective of rehabilitation and that such a change would significantly ameliorate the incarceration crisis, while enhancing community safety. We make three key recommendations in order to implement our proposal.  First, it is necessary to promulgate rehabilitation as a means of protecting the community.  Second, we propose that the role of rehabilitation in sentencing should be expanded.  In particular, and contrary to current orthodoxy, rehabilitation should have a meaningful role even in relation to very serious offenses.  In indicating the role that rehabilitation has played in their decisions, courts should clearly articulate how they have adjusted penalties in light of assessments of offenders’ potential for rehabilitation. Third, it is necessary to ensure that decisions by courts relating to the prospects of rehabilitation are made on the basis of more rigorous, empirically-grounded and transparent criteria.

To this end, we examine the under-researched topic of the role that instruments that predict the likelihood of an offender’s recidivism should play in guiding sentencing decisions.  The solutions advanced in this Article will provide the catalyst for rehabilitation to assume a much larger role in sentencing and thereby significantly ameliorate the incarceration crisis.

September 23, 2017 in Criminal Sentences Alternatives, Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (6)

Wednesday, September 20, 2017

"Does barring sex offenders from church violate RFRA?"

The title of this post is the title of this interesting new article in the Indiana Lawyer discussing interesting litigation working through the Indiana courts. Here is how the piece gets started:

Shortly after the controversial Religious Freedom Restoration Act went into effect in Indiana in 2015, the unlawful entry by a serious sex offender statute, which prohibits certain sex offenders from accessing school property, also became law. Now, those two statutes are at odds with each other as the Indiana Court of Appeals decides whether an interpretation of the statute that prohibits three men from going to church constitutes a RFRA violation.

Under the unlawful entry by a serious sex offender statute, Indiana Code 35-42-4-14, offenders convicted of certain sex offenses cannot knowingly or intentionally enter school property without committing a Level 6 felony. The Boone County sheriff determined that statute meant sex offenders in the county, including John Does 1, 2 and 3, could not attend church if their churches offered programs for children at least 3 years old who are not yet in kindergarten. The Boone Superior Court agreed, determining that anytime churches offer such programs, they are considered “school property,” and, thus, are unavailable to the John Does.

But because each of their churches offer children’s programming simultaneously or nearly simultaneously with adult services or Bible studies, the three men told the Indiana Court of Appeals during oral arguments in the case of John Doe, et al. v. The Boone County Prosecutor, et al., 06A01-1612-PL-02741, the sheriff’s letter effectively prohibits them from attending church at any time. The appellate case turns on two central issues that divided counsel for the state and the offenders: whether churches can be considered “school property” and whether the prohibition against the Does attending church violates their rights under RFRA.

September 20, 2017 in Collateral consequences, Offender Characteristics, Reentry and community supervision, Religion, Sex Offender Sentencing | Permalink | Comments (4)

Monday, September 18, 2017

Noting judicial resistance (and legal questions) as Ohio law pushes judges to avoid state prison sentences for certain offenders

This fascinating article in the Columbus Dispatch, headlined "Some Ohio counties leery of Kasich program to divert low-level offenders from prison," highlights a novel and controversial new  sentencing law in Ohio that some local judges and official plainly dislike. Here are excerpts:

The 43-year-old career criminal broke into three Obetz businesses — a market and two pizza parlors — by smashing windows or door glass with rocks and concrete blocks over a four-day period last summer.  A Franklin County Common Pleas judge sent him to prison for two years, a decision that was upheld last week by the county court of appeals.  But under a program in which Franklin County will be required to participate beginning next July, the state will penalize the county for sending such an offender to prison.

The Targeted Community Alternatives to Prison program, approved by legislators in June as part of the state budget, seeks to reduce the prison population by diverting nonviolent, low-level felons to probation, local jails or community-based programs.  In return, the counties will receive grants from the state Department of Rehabilitation and Correction to offset the cost of supervising, treating or jailing those offenders in their communities.

The program, advocated by prisons Director Gary Mohr and Gov. John Kasich, has received opposition from judges and prosecutors across the state since it was proposed.  Most judges don’t like it because “it infringes on our discretion by telling us there are certain felons we can’t send to prison,” said Judge Stephen L. McIntosh, the administrative judge for Franklin County Common Pleas Court.

Some counties have decided that the grant money being offered by the state won’t be enough to cover the costs of keeping offenders in the community who otherwise would have gone to prison.  Others have offered a harsh assessment of a program that gives grants to judges in exchange for keeping certain offenders out of prison.  “Essentially what judges are being offered is a bribe,” Stark County Common Pleas Judge Kristin Farmer said in August when she and her colleagues on the bench encouraged their county commissioners not to participate in the program this year....

Franklin and Stark are among the state’s 10 largest counties, all of which are mandated under the law to participate in the program beginning July 1, 2018.  Franklin County’s Common Pleas judges will meet Tuesday to decide whether to participate in the program before the mandate kicks in, McIntosh said.  Last week, Cuyahoga County joined Stark in deciding not to implement the program until next summer. “The state’s offer of resources is completely inadequate to the demands that it will put on our local jails and our systems,” Armond Budish, the Cuyahoga County executive, said in a news release....

Under the program, offenders convicted of fifth-degree felonies, the lowest felony level, are not to be sentenced to prison unless they’ve committed a violent offense, a sex crime or a drug-trafficking offense.  The state correction department estimated that 4,000 such offenders were sent to prison last year.  If a participating county sends someone to prison in violation of the criteria, their grant money will be docked $72 a day for each day the offender is held in a state facility.

Clinton County Common Pleas Judge John W. “Tim” Rudduck has been participating since October in a pilot program to test the concept and is a vocal supporter of its benefits. “I’m looking at it from the perspective of a single judge in a semi-rural county with limited resources,” he said.  “The money we have received has been instrumental in developing resources (to support alternatives to prison) that we never had before.”  Before the program was implemented, some offenders were going to prison simply because Clinton County didn’t have the resources to treat or supervise them in the community, he said.

The program is voluntary for 78 counties. So far, 48 counties have agreed to implement the program....  A system in which some Ohio counties follow the program and other don’t is “patently unconstitutional,” said Franklin County Prosecutor Ron O’Brien.  The Ohio Constitution, he said, requires “uniform operation” of all laws.  That concept is violated when a defendant receives a prison sentence in one county for an offense for which he would be prohibited from receiving prison in another.

Those “equal protection” concerns are almost certain to lead to legal challenges for the program, said Paul Pfeifer, executive director of the Ohio Judicial Conference.  “I’d fully expect a test case to be filed on that issue,” said Pfeifer, a former state Supreme Court justice and state senator.  His organization, which represents all judges in Ohio, has expressed concerns about the program, but wants to work with judges to make its implementation as smooth as possible now that it’s the law, he said.

September 18, 2017 in Criminal Sentences Alternatives, Offense Characteristics, Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

Thursday, September 14, 2017

Jared Kushner convening White House meeting on federal prison programming and reentry issues

As reported in this Washington Post piece, headlined "Kushner to gather bipartisan group to come up with ideas for federal prisons," an event scheduled for today in the White House suggests criminal justice reform issues are not completely dormant at the federal level. Here are the details:

President Trump’s son-in-law and senior adviser, Jared Kushner, will convene a roundtable Thursday at the White House to gather recommendations for improving mentoring and job training in federal prisons, a departure from the administration’s focus on more punitive crime-fighting measures.  A bipartisan group of about two dozen elected officials, religious leaders and business leaders were invited to the first major criminal justice-related event held by the Kushner-led Office of American Innovation, which in recent months has brought together technology executives to search for ways to make government more efficient.

Kushner’s interest in corrections policy is personal: His father, Charles Kushner, a real estate executive, was sentenced in 2005 to two years in federal prison after pleading guilty to tax evasion. Jared Kushner has said the experience gave him a glimpse of the challenges inmates and their families face in and outside of prison.  “There is a lot of agreement from the left and the center and the right that once a person has committed a crime we should make sure we give them the best opportunities to try to live a productive life after serving their time,” Kushner told The Washington Post in a telephone interview.  “We’re not looking to train better criminals.”

The event, which had not been officially announced as of Wednesday morning, comes after a months-long push by Trump and Attorney General Jeff Sessions for more aggressive prosecution of drug offenders and illegal immigrants.  In May, Sessions jettisoned an Obama administration policy that instructed federal prosecutors to avoid charging low-level criminals with drug offenses that would trigger severe mandatory-minimum sentences, a shift projected to boost the prison population.  Those efforts are at odds with a growing consensus that the mandatory-minimum sentences that proliferated during the “war on drugs” fueled crowded, costly prisons that unduly burden taxpayers and do not improve public safety.  A number of states, including several led by Republicans, are curbing their inmate populations and even closing prisons by reducing mandatory-minimum sentences and expanding parole and probation.

Kushner’s private discussions in recent months with members of Congress and outside groups have included sentencing reform, according to participants, but Thursday’s meeting is more narrowly focused on preparing inmates to reenter society.  Neither Sessions nor his newly appointed Bureau of Prisons director, retired Army Gen. Mark S. Inch, will attend, although some Justice Department officials are expected to participate.

Criminal justice advocates invited to the roundtable said the gathering is a positive first step, and they called for expanding drug and mental health treatment, vocational training, mentoring programs and placement in halfway houses. “Regardless of what you think about who goes to prison or how long they need to be there, most people come out eventually, so let’s make sure they are better off than when they came in,” said Mark Holden, general counsel for Koch Industries, a leading conservative proponent of reducing incarceration levels.  “Of course I want to see the dialogue on criminal justice issues continue and looked at comprehensively.  We need a holistic solution.”

The federal prison population is expected to grow by 2 percent over the coming year, rising by 4,171 inmates, to a total of 191,493, and reversing the downward trend of the past four years, according to the Trump administration’s proposed budget.  Yet the proposal calls for a 14 percent reduction in federal prison jobs, including 1,850 fewer corrections officers.  Many of those positions are vacant.  The Justice Department is seeking $10 million to cover the costs of food, health care, transportation and programs for the additional inmates, but it’s unclear how much money would be allocated to education and vocational training....

Asked about federal funding, Kushner said, “We’re not at a place where we are prescribing solutions. We’re bringing people together and generating ideas. If prisoner reentry programs are successfully executed, it’s usually a good investment.”  A request for recommendations from participants before the conference said, “While suggestions for the investment of Federal resources are appreciated, please also be sure to highlight opportunities that do not require Federal funding.”

On Capitol Hill, Rep. Douglas A. Collins (R-Ga.) has introduced a bill that would require federal prisons to assess inmates’ needs and offer rehabilitation programs. Co-sponsored by House Judiciary Chairman Bob Goodlatte (R-Va.), the measure requests $250 million over the next five years for prison education programs.

Among the elected officials slated to participate in Thursday’s program are Housing and Urban Development Secretary Ben Carson, Labor Secretary Alex Acosta, Sen. John Cornyn (R-Tex.), Sen. Sheldon Whitehouse (D-R.I.), and Republican Govs. Matt Bevin of Kentucky and Sam Brownback of Kansas.

September 14, 2017 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (5)

Wednesday, September 13, 2017

"Erasing the Mark of a Criminal Past: Ex-Offenders’ Expectations and Experiences with Record Clearance"

The title of this post is the title of this paper recently posted to SSRN authored by Ericka Adams, Elsa Chen and Rosella Chapman. Here is its abstract:

Through the process of record clearance, ex-offenders can have certain minor convictions removed from their criminal record or designated as expunged.  This study analyzes data gathered from semi-structured interviews with 40 past offenders to examine the expectations of individuals who seek record clearance and the extent to which completion of the process facilitates efforts to reintegrate into society and desist from crime.

The analysis finds that record clearance benefits ex-offenders through external effects, such as the reduction of barriers to employment, and internal processes, such as the facilitation of cognitive transformation and the affirmation of a new identity.  These benefits accrue from both the outcomes of the record clearance process and from the process itself.  Increased availability of inexpensive or free opportunities for expungement can contribute to more successful reintegration of ex-offenders into the workforce, families, and communities.  Not only would this improve quality of life for the ex-offenders, but it could also increase public safety and reduce public spending.

September 13, 2017 in Collateral consequences, Reentry and community supervision | Permalink | Comments (4)

Monday, August 28, 2017

"Less Is More: How Reducing Probation Populations Can Improve Outcomes"

Download (3)The title of this post is the title of this notable new paper emerging from the Executive Session on Community Corrections at the Harvard Kennedy School.  Here is the paper's introduction:

This paper will argue that, similar to the growth in prisons that has resulted in our current state of mass incarceration, the tremendous growth in probation supervision in the United States over the past several decades should be reversed, and the entire system of probation significantly downsized.  Specifically, we argue here that while the number of people on probation supervision in the U.S. has declined over the past several years (as have the number of people incarcerated and crime rates), that decline should not only be sustained but significantly increased, with a goal of reducing the number of people under probation supervision by 50 percent over 10 years.  We then discuss New York City as an example of a jurisdiction that has successfully done this.

In many respects, the rationale for this argument mirrors the argument against mass incarceration.  In most jurisdictions, probation is a punitive system that attempts to elicit compliance from individuals primarily through the imposition of conditions, fines, and fees that in many cases cannot be met (Corbett, 2015; Klingele, 2013).  This is not only a poor use of scarce resources; it contributes to a revolving door in which individuals who cannot meet those obligations cycle back and forth between probation and incarceration without necessarily improving public safety.  In fact, the cycle of incarceration and supervision can actually threaten public safety, and it certainly has harmful and farreaching consequences for those who are caught up in it, including job loss, disconnection from family, and housing instability (Council of Economic Advisers, 2015).  Given this, along with national and local data and examples that clearly demonstrate that reducing “mass probation” can go hand in hand with a reduction in the number of people incarcerated and ongoing declines in national and local crime, it begs the question of why so many jurisdictions continue to promulgate this punitive approach.

Because probation is the most severely underfunded and the least politically powerful of all criminal justice agencies, there is no likelihood of any massive infusion of new resources into the field.  Thus, the limited resources saved from this downsizing may be used to invest in community-based programs that provide employment, substance abuse, and mental health treatment to the remaining population — those that pose the highest public safety risk — as a way to significantly reduce that risk and avoid unnecessary monitoring and supervision.  A portion of these savings should also substitute for the rampant use of probation fees used throughout the U.S. as a way to pay for a structurally underfunded system.  These fees are unjust, counter-productive, and antithetical to the legitimacy of any system of justice (Martin, Smith, and Still, 2017).

August 28, 2017 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (1)

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)