Friday, February 12, 2016

At debate, Bernie Sanders promises that "at the end of my first term as president we will not have more people in jail than any other country"

The-possibles-bernie-sanderv02I have lost interest not only in blogging before for every Presidential debate, but also in watching most of them.  But, perhaps not surprisingingly as the Prez campaign marches forward to more diverse states than Iowa and New Hampshire, last night's Democratic debate saw Hillary Clinton and Bernie Sanders talking about modern policing, racial disparities in our criminal justice system and mass incarceration.  Of particular note was Sanders making the promise highlighted in the title of this post.  Here is a little bit more of what Senator Sanders had to say on these fronts:

This mandatory sentencing, a very bad idea. It takes away discretion from judges.  We have got to demilitarize local police departments so they do not look like occupying armies.  We have got to make sure that local police departments look like the communities they serve in their diversity.

And, where we are failing abysmally is in the very high rate of recidivism we see. People are being released from jail without the education, without the job training, without the resources that they need to get their lives together, then they end up -- we're shocked that they end up back in jail again.  So, we have a lot of work to do.

But, here is a pledge I've made throughout this campaign, and it's really not a very radical pledge.  When we have more people in jail, disproportionately African American and Latino, than China does, a communist authoritarian society four times our size.  Here's my promise, at the end of my first term as president we will not have more people in jail than any other country. We will invest in education, and jobs for our kids, not incarceration and more jails.

Helpfully, Leon Neyfakh not only noticed this significant promise, but also quickly authored this Slate commentary about it. The headline of the post provides a flavor of its themes: "Sanders Is Delusional if He Thinks He Can Keep His Promise on Mass Incarceration."  Here is the heart of is effective commentary:

What Sanders means by this is that under just four years of his magical leadership, the U.S. will bring down its jail and prison population by about 600,000 people.  Where does that figure come from?  Consider that the No. 2 spot on the list of countries with the most prisoners in the world right now is China, and it has about 1.66 million people behind bars.  The U.S., by comparison, has about 2.3 million.

Sanders did not mention during his remarks how he plans to make the leap from 2.3 million to fewer than 1.66 million. But regardless of what he has in mind, it’s pure fantasy for several reasons. Chief among them is that the president of the United States has no direct control over most of the nation’s correctional facilities.  This is because jails, which currently hold fewer than 745,000 people, are under local control, and state prisons, which hold about 1.35 million, are under state control. That leaves the federal prison system — the only one that the federal government is actually in charge of — with 210,000 people, or about 10 percent of the pie.

It’s true that the president has a “bully pulpit” from which he can say inspiring things that set the tone for officials working at all levels of government.  It’s also true that in theory, the federal government could try to bribe state governments to rely less on incarceration.  But the bottom line is that the feds can only set policy for their own prison system and that means there’s a very low ceiling on the amount of progress that a president, no matter how ambitious he or she is, can do to reduce the prison population....

This would be a good time to remember, also, that Congress’ current efforts to bring down the prison population by enacting very modest sentencing reforms appear to be falling apart in slow motion because there are enough lawmakers in Washington who think it’s too dangerous to set anyone free, ever.  And this is at a time when there’s supposed to be a historic bipartisan consensus over the need for reform.

If Sanders wants to release more than 500,000 people by 2020, he’s going to have to break them out personally.  If he has a more efficient approach in mind, he needs to share it before he makes this ridiculous promise again.

February 12, 2016 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5)

Thursday, February 11, 2016

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

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

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

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

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

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

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

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

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

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

Wednesday, February 10, 2016

"The State of Sentencing 2015: Developments in Policy and Practice"

The title of this post is the title of this great new publication from The Sentencing Project.  Here is a summary of its contents drawn from an email I received earlier today:

[This] new report from The Sentencing Project, The State of Sentencing 2015: Developments in Policy and Practice, [was] authored by Nicole D. Porter, Director of Advocacy.  The report highlights reforms in 30 states that demonstrate a continued trend to reform sentencing policies and scale back the use of imprisonment without compromising public safety.  It provides an overview of recent policy reforms in the areas of sentencing, probation and parole, collateral consequences, and juvenile justice.  Highlights include:

  • Sentencing:  At least 12 states authorized new sentencing laws or modified policy practices including: abolishing the death penalty; reducing criminal penalties; and sentence reduction policies for mandatory sentences.

  • Probation/Parole:  Lawmakers in at least six states modified policies relating to community supervision including statutory guidance designed to reduce returns to prison for technical probation and parole violators.

  • Collateral Consequences:  Officials in at least 14 states authorized changes in policy and practice to the collateral impacts of a conviction including: expanding voting rights; eliminating public benefits bans for felony drug convictions; and addressing employment barriers.

  • Juvenile Justice:  Lawmakers in ten states adopted juvenile justice reforms including: banning mandatory life-without-parole sentences for justice involved youth and limiting prosecutorial discretion in automatic transfer policies for juvenile defendants.

February 10, 2016 in Mandatory minimum sentencing statutes, Offender Characteristics, Reentry and community supervision, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)

Tuesday, February 09, 2016

Is California conducting an "unprecedented experiment in mass forgiveness"?

The question in the title of this post is prompted by the headline of this lengthy new Washington Post article, which suggests the Golden State has become a unique criminal justice laboratory.  Here are excerpts:

[Jose] Gonzalez is among thousands of felons benefiting from a grand experiment, an act of mass forgiveness unprecedented in U.S. history.  In California, once a national innovator in draconian policies to get tough on crime, voters and lawmakers are now innovating in the opposite direction, adopting laws that have released tens of thousands of inmates and are preventing even more from going to prison in the first place.

The most famous is a landmark ballot measure called Proposition 47, which in 2014 made California the first state in the nation to make possession of any drug — including cocaine and heroin — a misdemeanor.  More astonishing is the state’s decision to show leniency toward violent offenders, including murderers like Gonzalez.

For example, the state has ordered parole hearings for longtime inmates convicted of committing violent crimes before they turned 23, requiring authorities to consider anew whether immaturity at the time of the inmates’ offense argues for their release.

Meanwhile, Gov. Jerry Brown (D) has approved parole for roughly 2,300 lifers convicted of murder and about 450 lifers sentenced for lesser offenses — a revolution in a state that released only two lifers during former governor Gray Davis’s entire four-year term.  And more reforms could be in store. Last month, Brown unveiled a ballot measure that, if approved by voters in November, would grant early release to nonviolent felons who complete rehab programs and demonstrate good behavior.

Progressives across the nation have applauded California’s U-turn. “There is a gathering sense that the public is considerably less punitive than people had thought,” said Joe Margulies, a professor of law and government at Cornell University.

But with crime in some of California’s largest cities ticking up after years of sustained decline, many law enforcement leaders and victims’ advocates say the state has gone too far. “Our hope was folks getting out of prisons are going to come out and be model citizens,” said Christine Ward, executive director of the Crime Victims Action Alliance. “Unfortunately, we’re not seeing that.”...

So far, 250 inmates have been released under the Youth Offender Parole law, most of them violent offenders.  As many as 16,000 more remain eligible.  Meanwhile, a study by Stanford Law School found that Proposition 47 had unlocked the cell doors of nearly 4,500 prisoners since taking effect in late 2014.

Sheriffs, police chiefs and prosecutors speculate that Prop 47 has contributed to a recent rise in crime and homelessness in major California cities, arguing that the law eliminated a useful billy club: the threat of a felony conviction to steer addicts into treatment.  “It’s a vicious cycle,” said Kirk Albanese, deputy chief of the Los Angeles Police Department.  “You’ve got an addiction, we are not holding you accountable, and you’re back into the cycle of using. How do you support that habit?  Stealing.  Our burglaries are up, car theft is up, break-ins are up — they are all up.”

Hilary Chittick, a veteran judge for the Superior Court of Fresno County, said Prop 47 has “decimated” her ability to force addicts into treatment. “The public had a house with a leaky roof and bad pipes,” she said. “So they blew up the house.”

Prop 47 supporters acknowledge the problem and say efforts are underway to address it.  More drug courts, for instance, are opening their doors to misdemeanants as well as felons, said Prop 47 co-author Lenore Anderson, executive director of the advocacy group Californians for Safety and Justice. “If you think that you need a stick in order to mandate treatment, that option is available with a misdemeanor,” Anderson said.  But Prop 47 supporters reject the notion that the ballot measure contributed to localized spikes in crime.  Early reports indicate that recidivism among inmates released under the full range of reforms has been low....

In general, more than half of inmates released from California prisons — 54 percent — return to prison within three years. Among lifers paroled under Brown, the Los Angeles Times found, fewer than 2 percent have committed new crimes.  Among the 2,100 inmates released after the softening of the state’s three-strikes law, only about 6 percent have returned to prison. Michael Romano, director and co-founder of the Stanford Law School Three Strikes Project, attributes the success of this cohort in part to extensive rehab, but also to a kind of forgiveness psychology.

Because I do not live in California, it is hard for me to judge whether the state is genuinely engaged in "mass forgiveness" when passing laws designed to reduce its prison population and the severity of its sentncing laws. But there is little doubt that all sorts of significant criminal justice reforms are now playing out in California, and it will be quite valuable and important for criminal justice advoates and researchers to watch and study crime and punishment developments in the state in the months and years to come.

February 9, 2016 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (3)

Mark you calendar for ASKS, a big alternative sentencing summit next month in DC

Logohome99I am pleased to be able to promote an exciting event taking place next month: the Alternative Sentencing Key-Stakeholder Summit (ASKS), at Georgetown University Law Center, DC on March 7-8, 2016. Here is a link for registration, and here is the ASKS gameplan and a Q&A via its website:

Summit Overview: Alternative sentencing has been at the heart of improving public safety and includes successful sentencing, reentry and other fiscally responsible criminal justice policies and programs both in the U.S. and around the globe. As the U.S. starts 2016 with commitments from the President and Congress to pass meaningful federal criminal justice reform legislation, the time is right to evaluate the role alternative sentencing can play in furthering the key objectives of public safety and fiscal responsibility.

More Info: Who will participate in the ASKS Summit? The summit will bring together an unprecedented number of current and former leaders and senior government officials who have served on the front lines of day-to-day operations in the criminal justice system, including law enforcement, government, judiciary, defense, forensic social workers and psychologists, and nonprofits, as well as formerly incarcerated people, victims and advocacy groups.

What are the ASKS Summit objectives? Beyond education, ASKS will use plenary, breakout and interactive sessions to generate substantive dialogue between all delegates and identify key priorities for:

  • Expanding the use of effective alternative sentencing programs while enhancing public safety, including the mechanisms of discretion (police, prosecutorial and judicial) and legislative reforms;
  • Addressing public safety concerns over its broadened use and practical barriers to expansion and launching effective new programs in new jurisdictions, including operational limitations, program evaluation and public education;
  • NGOs that can help to support broader application of effective alternative sentencing, eg. ubiquity of access and other measures and peripheral programs to help ensure successful reentry.

February 9, 2016 in Criminal Sentences Alternatives, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Monday, February 08, 2016

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

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

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

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

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

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

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

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

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

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

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

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

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

Saturday, February 06, 2016

"Instead of building 'super prisons,' let's build super schools"

The title of this post is the headline of this notable commentary by an Alabama state rep in response to a recent proposal by the state's Governor.  Here is how the commentary begins:

During his State of the State Address Tuesday night, Gov. Bentley laid out his four-year plan, which included spending up to $800 million to build four new super prisons.  The next day, the governor announced that he wants to transfer $181 million out of the education budget and put it in the general fund budget, which also pays for prisons.

Don't get me wrong.  There are some very serious problems with our state prisons. What's happening at the Julia Tutwiler Prison for Women is unacceptable!  Changes need to be made, and more prison reform is absolutely needed.

But how can the governor — or any legislators, for that matter — justify spending almost a billion dollars on new accommodations for prisoners while thousands of our children are going to school in run-down facilities that have broken windows and no air conditioning?

Instead of building "super prisons" like what the governor is talking about, how about we build "super schools" instead? Why is the governor willing to invest hundreds-of-millions of dollars in our prison population's future, but wants to cut hundreds-of-millions from our children's future?

Among other points, this commentary highlights the reality that, for states with fixed and limited budgets, any and all extra taxpayer investments in cells can often require a reduction in taxpayer investment in classrooms.

February 6, 2016 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (3)

Wednesday, February 03, 2016

"American Exceptionalism in Probation Supervision"

American-Exceptionalism-in-Probation-Final-1024x663The title of this post is the title of this notable new data brief published by Robina Institute of Criminal Law and Criminal Justice. The core product is this interesting graphic (which is really hard to see here, but is very worth checking out).  Here is some of the Robina Institute's text that explains some of the graphic's data details:

It is well known that the U.S. leads the world in incarceration rates. This Data Brief shows that, compared with Europe, America is similarly “exceptional” for its high rates of probation supervision.  The average probation supervision rate for all fifty states is more than five times the average rate for all European countries included in the most recent Council of Europe data.  Several U.S. States with the highest rates of probation supervision (e.g., Ohio, Rhode Island, Idaho, and Indiana) have rates that are eight-to-nine times the average European rate.  Such stark differences exist despite the fact that many countries in Europe have overall crime rates that are quite similar to the U.S.

This Data Brief demonstrates for the first time that America suffers from “mass probation” in addition to “mass incarceration.”  Although probation has often been thought of as an “alternative” to prison or jail sentences, the U.S. has achieved exceptional levels of punitiveness in both incarceration and community supervision.  Over the past several decades, the number of people under probation supervision in the U.S. has increased greatly.  Nearly 4 million adults were under probation supervision across America at year-end 2013.  In all reporting European countries, with roughly twice the population of the U.S., only 1.5 million adults were under probation supervision.

These findings lead to many important questions of law and policy.  Most states should closely reexamine the numbers of people who are placed on probation each year, and the lengths of terms they are required to serve.  Options for “early termination” of the lowest-risk and most successful probationers should be explored.  Some experts in the field allege that probationary sentences do little to control crime, and frequently do more harm than good.  Community supervision can make offenders’ “reentry” into the law-abiding community more difficult than it needs to be, such as when meetings with probation officers interfere with work responsibilities, or supervision and program fees block probationers’ ability to support themselves and their families.

Concerns of this kind should be carefully evaluated by lawmakers in every state.  If some uses of probation are counterproductive to the reentry process, or outright “criminogenic,” it should be a high priority everywhere to discontinue them.  The financial expense and opportunity costs of “mass probation” should also be assessed nationwide.  High probation supervision rates cost American taxpayers a great deal of money, and not just in the funding of probation agencies.  National data suggest that a large share of all prison admissions come from probation revocations — a substantial number of which are for “technical” violations of sentence conditions rather than new criminal conduct.  Far from being an “alternative” to incarceration, probation has been a “feeder” institution or a “conduit” to our prisons and jails.  In this respect, misguided probation policy has almost certainly been a major contributor to America’s excesses in prison policy.  The problems of mass incarceration and mass probation are intimately linked, and they must be tackled together.

February 3, 2016 in Criminal Sentences Alternatives, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (3)

Tuesday, February 02, 2016

"The Irrationality of Natural Life Sentences"

The title of this post is the headline of this New York Times Opinionator column authored by Jennifer Lackey.  Here are excerpts:

[Personal] transformations can be seen most clearly by considering the two ends of the spectrum of life.  On the early side, it is often noted that the prefrontal cortex of the brains of adolescents is still developing, and so they are more likely than adults to act on impulse, engage in dangerous or risky behavior, and misread social cues and emotions.  This raises a host of questions about the level of responsibility that juveniles bear for their crimes and the appropriate punishments that should be handed out to them.  If the underdeveloped brains of adolescents at least partly explain their criminal behavior, then holding them fully responsible for their actions, and punishing them as adults, seems wildly off the mark.

On the later side of the spectrum, only 1 percent of serious crime is committed by people over the age of 60. According to Jonathan Turley, a professor of public interest law at George Washington University: “Everyone agrees on what is the most reliable predictor of recidivism: age.  As people get older, they statistically become less dangerous.” Turley refers to this period as “criminal menopause,” a phenomenon that raises serious questions about the rationale for incarcerating the elderly.  Still, researchers project that the elderly prison population in the United States will be over 400,000 in 2030, compared with 8,853 in 1981.

At the early end of the spectrum of life, then, there is the possibility that prisoners might change; at the later end, there is the reality that they have changed.  Both facts bump up against natural life sentences.  A sentence of “natural life” means that there are no parole hearings, no credit for time served, no possibility of release.  Short of a successful appeal or an executive pardon, such a sentence means that the convicted will, in no uncertain terms, die behind bars.

Many types of arguments have been leveled against natural life sentences.  Economic ones focus on the ballooning costs of mass incarceration and the toll this takes on government budgets, especially as the age and medical expenses of prisoners rapidly increase.  Legal ones ask whether such sentences are cruel and unusual and therefore violate the Eighth Amendment, particularly for juveniles.  Social arguments ask whether natural life sentences discourage reform by providing no incentive for rehabilitation.  Moral concerns are grounded in the dignity and rights of prisoners, while psychological objections call attention to the myriad causes of deviant behavior and their responsiveness to appropriate treatment.

But one argument that is surprisingly absent from these conversations is an epistemic one that has to do with us.  For natural life sentences say to all involved that there is no possible piece of information that could be learned between sentencing and death that could bear in any way on the punishment the convicted is said to deserve, short of what might ground an appeal.  Nothing.  So no matter how much a juvenile is transformed behind bars, and no matter how unrecognizable an elderly prisoner is from his earlier self, this is utterly irrelevant to whether they should be incarcerated.  Our absence of knowledge about the future, our ignorance of what is to come, our lack of a crystal ball, is in no way a barrier to determining now what someone’s life ought to be like decades from now.

Moreover, prisoners aren’t the only ones who can change: victims and their families can come to see the convicted as being worthy of forgiveness and a second chance, and public attitudes can evolve, moving away from a zealous “war on crime” approach to one that sees much criminal activity as the result of broader social problems that call for reform.  Even if we set aside the other arguments against natural life sentences — economic, legal, moral and so on — the question I want to ask here is this: how is it rational to screen off the relevance of this information?  How, that is, is it rational to say today that there can be no possible evidence in the future that could bear on the punishment that a decades­-from-­now prisoner deserves?...

Notice that nothing in the epistemic argument here suggests that no prisoners should, in fact, spend the rest of their natural lives behind bars.  Instead, the point is that rationality requires that we leave the epistemic door open to acquiring new information.  Put bluntly, the argument says that it is irrational for the possibility of parole to be taken off the table at the outset of any sentence.

If Hume is right that “a wise man proportions his belief to the evidence,” then our beliefs about the punishment a person deserves at any given time need to be sensitive to the evidence available at that time.  But if we screen off huge amounts of potentially relevant information decades before the beliefs about what a prisoner deserves are even formed, then it is impossible for them to be proportioned to the evidence.

February 2, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (4)

Sunday, January 31, 2016

Highlighting the highlights of the Colson Task Force report on improving federal justce system

As reported in this recent post, last week the Charles Colson Task Force on Federal Corrections issued numerous recommendations to reform the federal criminal justice system in a big report titled Transforming Prisons, Restoring Lives.  The helpful folks at Vice subsequently published this helpful overview of the report in an article headlined "A Bipartisan Congressional Panel Just Agreed on Ways to Send Fewer Americans to Prison."  Here are excerpts: 

Chief among the recommendations of the nine person, bipartisan Charles Colson Task Force on Federal Corrections is sending fewer low-level drug offenders to federal prison, and sentencing offenders to far fewer years behind bars, which would reverse two of the changes that have driven the federal prison population to grow by 700 percent since 1980.

But the task force also dug into the minutiae of how the prison system is operated, including how it evaluates the success of its programs, the recidivism rate, and how it uses its resources.  In their final report, members suggest that the prisons should actually devote more resources to addiction treatment, cognitive behavioral therapy, classes, and faith programs, and incentivize participation by offering offenders reducing time from their sentences and a "second look" at their cases by a federal judge after they've served certain number of years.

"If their behavior is good in the program, they've taken part in programs, they can have their sentence looked at again. It's an incentive to have people behave well and participate in programs that are evidence-based to improve behavior," said Laurie Robinson, a criminal justice professor and former Assistant Attorney General who served on the task force....

Robinson described her experience working with the task force as "terrific."  Despite 30 years working in the criminal justice system, she said she learned both from the diverse viewpoints of her colleagues and the federal prisoners she met on site visits.  "Some were in their late 60s or 70s, and at least one of those individuals was in very bad health and said he had applied several times for compassionate release," she said.  "And it just made you think: Why are we spending so much in the way of taxpayer dollars to keep people behind bars?"...

Robinson and her colleagues were meeting with senior staff at the White House ... to brief them on the report and point out which actions could be taken without a Congressional vote or legislation.  "There are things in there that the director of the BOP could do tomorrow, she said, noting that there are also steps the DOJ and president could take that focus on management, resource allocation, and best practices.  Others of them I think might not happen necessarily quickly but maybe are things that will get into the public conversation that will have to happen at a later time," she said....

Going forward, the report says, sentences should be individualized, policy should emphasize public safety, data should guide policies, and the costs should be more carefully considered.  Most importantly, the report says, the lawmakers who receive the recommendations "must capitalize on this rare moment in time" of political will and public awareness to make effective change.

Prior related post:

January 31, 2016 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (0)

Thursday, January 28, 2016

California Gov Jerry Brown proposes state ballot initiative to expand parole and make other reforms

As reported in this Los Angeles Times article, headlined "Gov. Brown to seek November ballot initiative to relax mandatory prison sentences," the chief executive of the largest state in our Union is asking voters to give certain executives and judges more power to reduce state sentences after their imposition. Here are the basic details:

Almost four decades after he signed a law mandating strict sentences for the most serious crimes, Gov. Jerry Brown on Wednesday moved to ease its effect, proposing inmates convicted of nonviolent offenses be given a chance at early release.  “Let's take the basic structure of our criminal law and say, when you've served fully the primary sentence, you can be considered for parole,” Brown said in announcing a November ballot initiative to streamline the rules — one he estimated could affect thousands of current inmates.

Rather than change sentencing policy, the proposal would allow corrections officials to more easily award credits toward early release based on an inmate's good behavior, efforts to rehabilitate or participation in prison education programs. “It's well-balanced,” Brown said. “It's thoughtful.”

The effort is largely in response to the lingering effects of a 2009 federal order for California to reduce its prison population, Brown said.  But he made clear that it also is meant to improve a criminal justice system that offers too few chances at rehabilitation. “By allowing parole consideration if they do good things,” the governor said of some inmates, “they will then have an incentive … to show those who will be judging whether or not they're ready to go back into society.”

Brown had been hinting for months that he was considering a key change in criminal justice policy, and consulted with a number of academics and inmate advocates on how to proceed.  He was joined Wednesday by a handful of prominent law enforcement and religious leaders.  While it was unclear whether they were ready to fully embrace each detail of the measure, they praised Brown's focus on weeding out those serving time for nonviolent offenses. “I think this will effectively open bed space for those who richly deserve to be there,” Los Angeles Police Chief Charlie Beck said.

The initiative also would authorize the state parole board to consider early release for nonviolent inmates who complete a full sentence for their primary offense and it would require a judge to decide whether felons as young as 14 should be tried in juvenile or adult court.  That final element of the initiative would undo a system approved by voters in 2000 that handed that power to prosecutors.

Once the measure is given a formal title and summary by the attorney general's office, Brown and his political team will need to gather more than 585,000 valid voter signatures to qualify it for the Nov. 8 statewide ballot. The governor likely has the needed resources: Campaign funds left over from his 2014 reelection bid and previous successful ballot measures total some $24 million....

Patrick McGrath, district attorney of Yuba County, said Brown's plan — by offering more pathways to parole — also may send the wrong message to crime victims who believe their perpetrators received a certain punishment. “Now, down the line, they're told 10 year [sentences] are not really 10 years,” he said. “I think this is very, very corrosive to the faith that the public has ultimately in the criminal justice system.”  Loyola Law professor Laurie Levenson, a former federal prosecutor, said the proposal would make a judge's sentence only a starting point. “People could be released from prison years earlier based on what the parole board wants to do,” she said....

Of particular interest will be how Brown shapes the narrative of the political campaign in support of his parole initiative. The fall statewide ballot already is expected to be one of the longest in more than a decade, which will mean voters are deluged with a flood of advertisements, mailers and messages. The ballot also likely will feature other high-profile public safety debates, including a gun violence initiative promoted by Lt. Gov. Gavin Newsom and perhaps dueling initiatives to either eliminate or strengthen California's death penalty.

Prof David Ball, who has researched and written a lot about California sentencing realities, provides a deeper dive into what all this could really mean in this Reality-Based Community post. Here is how this post starts:

Governor Jerry Brown introduced the Public Safety and Rehabilitation Act of 2016 (link to initiative text), a sentencing reform ballot initiative slated to appear on the November ballot.  This is potentially huge news — if nothing else, it may signal that the political calculation on crime could be changing — but I have some caveats about how significant it could end up being. The PRSA expands the potential for parole release, expands good-time credits, and puts judges, not DA’s, in charge of deciding whether a given juvenile offender can be tried in adult court.

The most significant part of the PRSA, in my opinion, is the expanded role of parole. California never quite did away with indeterminate sentencing, as I have written about here, reserving X-years-to-life sentences for non-capital murder, three strikes offenses, and some sex offenses. This proposal is definitively not a return to the Indeterminate Sentencing Law of the early 1970’s, where sentences could be as vague as “one year to life.”  Instead, it makes all those who have served their primary (determinate) sentence eligible for parole. The key here is how primary sentence is defined: it “exclude[es] the imposition of an enhancement, consecutive sentence, or alternative sentence.” As I wrote about here, (see this page for a link to the article and the data on sentencing), there are many people serving very long consecutive sentences (100 years plus).  More importantly, the tail-wagging-the-dog enhancement structure of the California penal code means a lot of time actually served is from enhancements.  I expect this to be the main source of pushback, since so much of plea bargaining is, in fact, charge bargaining, and so much of charge bargaining is about enhancements.

January 28, 2016 in Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Tuesday, January 26, 2016

"Congressionally Mandated Task Force Calls for Bold Transformation of Federal Corrections System"

CCTFThe title of this post is the headline of this press release which summarized the contents and import of a new report released this morning by the Charles Colson Task Force on Federal Corrections.  Here are excerpts from the press release (which includes a link to the report):

Today, the Charles Colson Task Force on Federal Corrections issued a set of bold recommendations to reform the federal justice system, enhance public safety, and save the government billions of dollars. In a new report, Transforming Prisons, Restoring Lives, the Congressionally mandated blue-ribbon panel released the findings of its year-long investigation into the nation’s overcrowded and costly federal prisons....

“We have laid out a detailed roadmap of ambitious, consensus-based recommendations that place public safety first while reserving prison for those who truly need it,” said task force chair, former Republican congressman from Oklahoma J.C. Watts, Jr. “If taken together, these reforms are projected to reduce the federal prison population by 60,000 people in the coming years and save more than $5 billion.”

Congress established the bipartisan panel in 2014 in response to mounting concerns about the scale and cost of the federal Bureau of Prisons (BOP), which currently houses 197,000 people with a budget of almost $7.5 billion this year. Alan Mollohan, the task force’s vice-chair, said that the seven-fold increase in the BOP’s population since the 1980s is unsustainable. 

"The BOP has been operating at crisis levels for decades," said Mollohan, a former Democratic congressman from West Virginia. "As a result, its policies and practices have not kept up with best practice in the field, presenting a missed opportunity to rehabilitate those who are confined in federal prisons and thus promote public safety.”...

In the report, the task force recommends that the federal justice system move away from its current “one size fits all” approach to meting out punishment and delivering treatment and programs. Instead, they advise that sentencing decisions and correctional responses be based on the individual case–an approach grounded in research evidence as the most effective means of reducing recidivism.

Observing that prison is expensive and imposes tremendous harm to individuals, families, and communities, the Task Force recommends that prison sanctions be used sparingly and long terms of incarceration be reserved for only the most serious federal crimes. They advise incentivizing participation in programs that are proven to lower recidivism and increase the odds of success for individuals reentering society. And, in following the example of successful reforms in states like Texas, Utah, Georgia, South Carolina, and Pennsylvania, they advocate for a more diversified, evidence-based approach to criminal justice that delivers public safety at less cost.

In more specific terms, the Task Force recommends that:

  • Mandatory minimum penalties for drug offenses should be reserved for “drug kingpins”–those found to have served a leadership role in a large cartel;
  • Program and treatment participation in prison should be incentivized through earned time off one’s sentence; and
  • The BOP should better assess the risks, needs, and assets of its population and align programming and treatment accordingly to reduce recidivism and enhance public safety.

Along with the release of this important report, J.C. Watts, the chair of the Charles Colson Task Force on Federal Corrections, authored this Washington Post commentary headlined "Prisons are full of low-level offenders. It’s time to rethink federal sentencing laws.: Americans believe in redemption, but for too long, our reflexive reliance on incarceration has left us little room to show it."

January 26, 2016 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4)

Monday, January 25, 2016

Helpful accounting by Pew Charitable Trusts of huge state-level reforms resulting from Justice Reinvestment Initiative

The good folks at Pew recently released these two helpful mini-reports that provide a summary accounting of lots of the criminal justice reform work that has been done by states in recent years through the so-called Justice Reinvestment Initiative:

The first of these linked documents has a pdf version with huge chart with lots of interesting specifics under the heading "Sentencing and Corrections Reforms in Justice Reinvestment States."  Anyone eager to get a feel for just some of the massive criminal justice reforms that have taken place in the states over the last decade ought to check out this document.  And the document has this overview discussion at the outset:

Since 2007, 31 states have reformed their sentencing and corrections policies through the Justice Reinvestment Initiative, a public-private partnership that includes the U.S. Justice Department’s Bureau of Justice Assistance, The Pew Charitable Trusts, the Council of State Governments Justice Center, the Crime and Justice Institute, the Vera Institute of Justice, and other organizations.  Although reforms vary from state to state, all aim to improve public safety and control taxpayer costs by prioritizing prison space for serious and repeat offenders and investing some of the savings in alternatives to incarceration for low-level offenders that are effective at reducing recidivism.

Justice reinvestment policies generally fall into four categories: sentencing laws that instruct courts about how to sanction convicted defendants; release laws that determine the conditions for offenders’ departure from prison; supervision laws that guide how those on probation or parole are monitored; and oversight laws that track the progress of these changes.

In the years since the wave of reforms began, the total state imprisonment rate has ticked downward while crime rates have continued their long-term decline.  At the same time, states that have enacted justice reinvestment laws expect to save billions of dollars as a result of their reforms. 

The second document linked above drills down a little deeper into sentencing-specific reforms, and a quick review of the state-by-state changes suggests that even more "red" states have been involved in making sentencing reforms through the Justice Reinvestment Initiative than "blue" states.

January 25, 2016 in Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)

Friday, January 22, 2016

"Incarceration Incentives in the Decarceration Era"

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

After forty years of skyrocketing incarceration rates, there are signs that a new “decarceration era” may be dawning; the prison population has leveled off and even slightly declined.  Yet, while each branch of government has taken steps to reduce the prison population, the preceding decades of mass incarceration have empowered interest groups that contributed to the expansion of the prison industry and are now invested in its continued growth.  These groups, which include public correctional officers and private prison management, resist decarceration-era policies, and they remain a substantial obstacle to reform.

This Article scrutinizes the incentives of these industry stakeholders in the new decarceration era. Drawing on interviews with a wide range of industry actors, it develops a “taxonomy of resistance” to identify how and why these actors resist reform efforts and uncovers understudied parallels between private and public prison stakeholders.  This fine-grained analysis grounds the Article’s recommendations for changes to compensation and assessment structures to better align industry incentives with decarceration-era goals.  Ultimately, the future of the decarceration era is precarious but not doomed.  The detailed incentives unearthed by this study demonstrate the significant hurdles facing emerging decarceration policies and the urgent challenge of accounting for, overcoming, and co-opting entrenched prison industry stakeholders.

January 22, 2016 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Thursday, January 14, 2016

"More Prison, Less Probation for Federal Offenders"

The title of this post is the title of this short Pew Charitable Trusts "Fact Sheet" publication which includes a graph highlighting how many more federal offenders are sentenced to prison and how many fewer get just probation in recent years.  Here is the heart of the text of the document (with my emphasis added):

Over the past three decades, imprisonment has become the dominant sanction in the federal criminal justice system. Nine in 10 federal offenders received prison sentences in 2014, up from less than half in 1980, as the use of probation declined steadily. (See Figure 1.) Federal courts sentenced 2,300 fewer offenders to probation in 2014 than in 1980, even though their caseload nearly tripled during that span.

Changes in the kinds of offenses and offenders prosecuted in federal court may have contributed to the shift toward prison and away from probation. But sentencing policies established during the 1980s and 1990s also played an important role by mandating prison time for many offenses for which probation had routinely been ordered in the past.

Congress increased imprisonment and decreased the use of probation in several ways. During the 1980s and 1990s, for example, lawmakers enacted dozens of laws prohibiting probation and requiring prison terms for many common federal crimes, including drug trafficking and illegal firearms possession.

In 1984, Congress created the U.S. Sentencing Commission, an independent agency within the judicial branch, and charged it with establishing guidelines that federal judges were required to follow during sentencing. The guidelines, which were intended to promote consistency in federal criminal penalties and took effect in November 1987, mandated imprisonment for a variety of offenses — including fraud, embezzlement, and tax evasion — for which probation was a routine sanction in the past.

January 14, 2016 in Data on sentencing, Federal Sentencing Guidelines, Scope of Imprisonment | Permalink | Comments (5)

Friday, January 08, 2016

Is mass incarceration contributing to the dumbing down of America?

Section2_Fig7The question in the title of this post is prompted by this local article headlined "Oregon Spends Nearly Four Times More on Incarceration than Higher Education."  As these excerpts reveal, the article focuses on just one state's investment of more taxpayer resources on locking up young people than on educating them:

According to new data released near the end of 2015, Oregon is among the states with the lowest ratio of higher education spending to prison and incarceration spending.  Criminal justice and higher education experts, advocates and reformers told GoLocal that, the state’s disparity in funding is a major issue that needs to be addressed.

According to a study entitled Public Research Universities: Changes in State Funding, published by the American Academy for Arts and Sciences, Oregon spends $204 million in higher education each year, only fifth from the bottom in the United States.  Meanwhile, the state spends nearly four times that, $802 million in total, on corrections.

That gives them the second largest disparity in the country, trailing only Michigan and leading Arizona, Vermont and Colorado in the top five. According to the Academy, the lack of funding can have major impacts on the U.S. and state economy in the future....

The Partnership for Safety and Justice is also calling for a decrease in the amount of money spent on prisons. The group fights for a decrease in crime and a change in the way the criminal justice system is funded. In an interview with GoLocal, Shannon Wight, Vice President of the Partnership for Safety and Justice, said that recent actions taken by the State of Oregon to cut prison spending should be only the beginning....

Business leaders told GoLocal that more spending for schools is crucial, especially given Oregon’s issues with education. "First and foremost, we need to improve the reputation of our education system," John Taponga, President of ECONorthwest, told GoLocal.

In order to do so, groups like the Partnership for Safety and Justice recommend taking a closer look at funding for education and incarceration. “A few years ago Pew did a similar analysis and what we learned from that is that it’s important to note is how much of our general fund we are spending on corrections vs education,” Wight said. “Certainly as a state we want to emphasize education over incarceration if we want to see the state, and its residents, thrive.”

Wight cautioned, however, that spending should be shifted gradually to avoid taking important resources away from those already serving time behind bars. “It’s important to remember that we can’t just spend less on prison and put all that money into schools right away,” Wight said. “We have to thoughtfully reduce the number of people in our correctional systems by evaluating who should be under correctional control and who shouldn’t; who should instead be receiving help from mental health or addiction services and who can be held accountable without doing prison time. Counties need the state investment to do that work effectively.”

The full report published by the American Academy for Arts and Sciences referenced in this article is available at this link.  The figure reprinted here comes from the report (which also details how increased spending on health care is another key factor reshaping how states spend limited resources).

January 8, 2016 in Data on sentencing, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2)

Wednesday, January 06, 2016

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

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

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

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

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

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

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

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

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

Monday, January 04, 2016

Excessive federal sentencing and strict mandatory minimums at center of armed "militia" occuptation in Oregon

23rd_Ohio_Volunteer_Infantry_Color_GuardBecause I am back to full-time teaching this week, I have not yet had much time to research closely the sentencing backstory seemingly inspiring a group of Americans to take up arms against the federal government in Oregon.  But a number of readers have made sure I did not miss that federal sentencing outcomes, and particularly the application of a 5-year mandatory minimum sentencing term, have been a central catalyst for what is now going on.  Helpful, this new lengthy Washington Post piece, headlined "What spurred the armed occupation of a federal wildlife refuge in southeast Oregon," provides some of the key sentencing details:

The several-hundred-person procession through Burns, Ore., concluded at Dwight Hammond’s doorstep early Saturday evening. In a town of less than 3,000 tucked in Oregon’s southeast corner, it was a massive show of support for Hammond, 73, and his son Steven, 46, as they prepared to report to federal prison Monday.

“I thank everyone who came out here today,” Dwight Hammond told the supporters after he and his wife hugged each of them. “See you in five years.” The father and son had been sentenced last year for setting fires on federal land, the conclusion of two decades of clashes between the Hammond family and the federal government that have made the ranchers a cause celebre for some on the right.

For their supporters, the Hammonds represent the latest battle in a struggle as old as the American settlement of the northwest: pitting poor cattle farmers against the federal government and its land regulations in states such as Oregon, where the government owns more than half of the land.

“Most Americans, if they knew the story of the threats and the charges brought against these ranchers, they would say this isn’t right,” said Jeff Roberts, one of the organizers of Saturday’s rally. “We really wanted to show the family support and let them know that they’re not alone. That Americans don’t turn their backs on them.”

But there is a stark divide among the ranks over how to best remedy the plight of the cattle rancher. Some activists, such as Roberts, think the battle will be won through a deliberate public awareness campaign, rallies and town hall meetings. Others, including some armed militias, have another tact in mind: armed resistance.

As Saturday’s rally concluded, a small subsection of attendees, led by Ammon Bundy, began launching into impromptu speeches and, to the horror of many of the rally’s primary organizers, declared that it was time for the group to take up arms. “Those who want to go take a hard stand, get in your trucks and follow me!” Bundy declared to the group at the conclusion of the event, according to several people who were in attendance. “We were just aghast,” Roberts said.

Within the hour, Bundy and about a dozen armed supporters had seized Malheur National Wildlife Refuge, posting armed men at the front gate and vowing to occupy the federal land for “years.”

His father, Cliven Bundy, a Nevada rancher who in 2014 had an armed standoff with federal agents who were attempting to prevent him from illegally grazing his cattle on federal land, who is not himself inside the refuge, told a reporter in Oregon that “150 militia men” had occupied the federal land. As of 6 p.m. Sunday, the armed men remained at the refuge. “There were absolutely not 150 of them,” Roberts said Sunday morning. “He had a small handful of supporters, maybe a dozen. I saw them as they pulled out in their trucks.”...

After a two-week trial, Dwight and Steven Hammond were convicted by jury. They were sentenced in October to five years in prison for committing arson on federal land in 2001 and 2006. The pair had been sentenced and served time previously, but on appeal a federal judge ruled that their initial sentences had been too short.

In the 2001 incident, the men, who had leased grazing rights to the land for their cattle, said they had started the fires on their own land to try to prevent the spread of an invasive species of plant, and that the fire had inadvertently burned onto public land. Prosecutors said the fire consumed 139 acres of public land, and was set in an attempt to hide evidence after the men were part of a hunting party that illegally killed several deer on the federal land.

In 2006, the Hammonds allegedly set a “back fire” meant to protect their land after a series of lightning storms had started a fire on the federal property. Prosecutors said that fire then spread onto the federal land.

“We all know the devastating effects that are caused by wildfires. Fires intentionally and illegally set on public lands, even those in a remote area, threaten property and residents and endanger firefighters called to battle the blaze” Acting U.S. Attorney Billy Williams said in a statement issued after the Hammonds were sentenced. “Congress sought to ensure that anyone who maliciously damages United States’ property by fire will serve at least 5 years in prison. These sentences are intended to be long enough to deter those like the Hammonds who disregard the law and place fire fighters and others in jeopardy.”

The sentence outraged many fellow ranchers and constitutionalist groups in the northwest, who considered the case an overreach of federal regulation and of the federal prosecutors. “We don’t agree with the sentencing, so we came out to stand in solidarity and support,” said Brandon Curtis, president of the Idaho chapter of Three Percent, a constitutionalist group that was heavily involved in organizing the rally for the Hammonds.

Most infuriating about the Hammond case, their supporters say, is that the two men were charged under a federal terrorism statute that requires a five-year mandatory minimum sentence for anyone convicted of arson on federal property. “I don’t think anybody would argue that arson took place . . . but to sentence this family as terrorists, we think that is absolutely egregious,” Roberts said. “These are just country folk, they’re not terrorists.”

Roberts, Curtis and others traveled to the Hammond home in recent weeks and began holding town hall meetings to try to build more local support for them — assuring residents that they were not there to “upend the town.” Despite encountering a lot of local skepticism, the men eventually found some allies — who started an organization called Harney County Committee of Safety and participated in Saturday’s rally.

But at the same time, the Bundy family had begun speaking out on behalf of the Hammonds. In early November, Ammon Bundy began posting updates on the case to his Facebook pages and website. “This last Wednesday I spent a good part of the day in the Hammond’s home. We spoke for hours. Several times, I found the Hammond’s in tears when they explained the injustices that has destroyed their lives,” Ammon Bundy wrote on Nov. 21. “They were hopeful that the American people were going to stand for them. And that, just maybe, they would be able to return to the life they once knew.”

January 4, 2016 in Mandatory minimum sentencing statutes, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (7)

Sunday, January 03, 2016

"Taking Another Look at Second-Look Sentencing"

The title of this post is the headline of this notable new article authored by Meghan Ryan and recently posted SSRN.  Based on the abstract alone, I am a big fan of this paper because it appears to explore rigorously a sentencing topic which I believe merits much more attention in an era marked by a record-high numbers of LWOP and other lengthy prison sentences: whether, why and how a sentence imposed long ago can and should be reconsidered anew.  Here is the abstract:

A historically unprecedented number of Americans are currently behind bars.  Our high rate of incarceration, and the high bills that it generates for American taxpayers, has led to a number of proposals for sentencing reform.  For example, bills were recently introduced in both the House and Senate that would roll back federal mandatory minimum sentences for certain drug offenders, and the Obama Administration has announced a plan to grant clemency to hundreds of non-violent drug offenders.

Perhaps the most revolutionary proposal, though, is one advanced by the drafters of the Model Penal Code, namely that judges be given the power to resentence offenders who have been serving long sentences on the ground that societal views about the seriousness of the offenses these individuals committed have changed.  These evolved societal views, the drafters have asserted, might justify reducing the offenders’ sentences.  The drafters of the Code have suggested that this position is based in part on retributivism — on what these particular defendants deserve as a result of committing these crimes.  

But an offender’s desert ordinarily does not change as time progresses; it is societal views of desert that change.  This raises a new question in criminal law about whether the original sentencer — the one imposing punishment at the time of trial — or a new sentencer — one imposing punishment over a decade after the offense was committed — is better positioned to determine the offender’s desert.  The drafters of the Code have proffered that a new sentencer is best because it can be more representative of modern values.  But the new sentencer does not represent the public against which the offense was committed.  And the new sentencer may not be well positioned to assess the offender’s culpability or the harm he caused.  

The new sentencer may be in a better position to know whether, as time has passed, the offender has been rehabilitated or whether he still poses a danger to society, but these factors are not based on the offender’s desert.  While these other utilitarian considerations may certainly justify second-look sentencing, and while second-look sentencing may very well be a useful innovation, this new approach to sentencing overlooks the important desert-based restraints of limiting retributivism upon which the Code is based.  Reliable assessments of an offender’s desert generally best lie with the decisionmakers in place around the time the crime was committed.

January 3, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Tuesday, December 29, 2015

New BJS data show continued (very) slow decline in correctional populations in US

One of the many joys of the holiday season for data junkies is new releases of new official reports from the Bureau of Justice Statistics.  This latest one, excitingly titled "Correctional Populations in the United States, 2014," was released today at this BJS webpage where one can also find this summary of the report's basic coverage main findings:

Presents statistics on persons supervised by adult correctional systems in the United States at yearend 2014, including offenders supervised in the community on probation or parole and those incarcerated in state or federal prison or local jail. The report describes the size and change in the total correctional population during 2014. It details the downward trend in the correctional population and correctional supervision rate since 2007. It also examines the impact of changes in the community supervision and incarcerated populations on the total correctional population in recent years. Findings cover the variation in the size and composition of the total correctional population by jurisdiction at yearend 2014. Appendix tables provide statistics on other correctional populations and jurisdiction-level estimates of the total correctional population by correctional status and sex for select years.

Highlights:

  • Adult correctional systems supervised an estimated 6,851,000 persons at yearend 2014, about 52,200 fewer offenders than at yearend 2013.
  • About 1 in 36 adults (or 2.8% of adults in the United States) was under some form of correctional supervision at yearend 2014, the lowest rate since 1996.
  • The correctional population has declined by an annual average of 1.0% since 2007.
  • The community supervision population (down 1.0%) continued to decline during 2014, accounting for all of the decrease in the correctional population.
  • The incarcerated population (up 1,900) slightly increased during 2014.

December 29, 2015 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Recuenco and review of Blakely error, Scope of Imprisonment | Permalink | Comments (1)

Tuesday, December 22, 2015

"To forgive prisoners is divine — or as close as government gets"

The title of this post is the sub-headline of this notable new commentary published by the American Conservative and authored by Chase Madar under the main headline "The Case for Clemency."  I recommend the lengthy piece in full, and here are excerpts:

President Obama’s recent announcement that he would commute the sentences of 95 federal prisoners and fully pardon two others is welcome news.  So is a holiday press release from New York Governor Andrew Cuomo, who has hitherto been miserly with clemency, but will pardon nonviolent offenses committed by 16 and 17 year olds (who will continue to be automatically tried as adults, a harshness almost unique among the fifty states).  But we should see these gestures for what they are: small trickles of clemency where what is demanded is a rushing, roaring pipeline scaled to the globally unprecedented size of our prison population and incarceration rate. We need industrial-scale clemency.  Here is why and how....

At the federal level — which only accounts for about 12 percent of U.S. prisoners — mild sentencing reform has both bipartisan support and bipartisan resistance in the Senate.  Looking to the states, a much hyped “moment” of criminal-justice reform is more than countervailed by the deeply ingrained punitive habits of governors and legislatures across the land, from Massachusetts, whose liberal governor signed a tough “three strikes” law in 2012, to Louisiana, where Bobby Jindal upped penalties for heroin-related offenses.

Whether we admit it or not, we are in quite a spot: our hyper-incarceration is unprecedented in U.S. history.  Rectifying this will require changes in policing, a cutting back of what we criminalize, and serious revision of our sentences, which far outstrip their deterrent value.  Another part of the solution will have to be clemency on a massive scale: pardons, which all but expunge a criminal record; commutations, which shorten a prison sentence; parole; geriatric and compassionate release; and retroactive sentencing reform.

As of this writing, Obama has issued more commutations than any other president since Lyndon Johnson.  But the supply of imprisoned Americans is orders of magnitude greater than it was in Johnson’s day, and Obama has only granted pardons or commutations at the exceedingly stingy rate of one out of 136, in line with the steep plummet in clemency since World War II. The Department of Justice has promised to routinize clemency, issuing new guidelines for nonviolent offenders who have served 10 years already, but the results so far have been bonsai-scaled in comparison to the magnitude of the federal prison population....

So much for Washington, which despite much misty-eyed self-congratulation has not shown itself up to the task of scaling back our prison state.  Washington’s timidity means less than it first appears however: despite lazy media focus on the federal justice system, the real action is at the state level, which handles most policing, sentencing, and imprisoning.  Alas, here too the general trend has been towards greater stinginess with clemency. 

Take the example of Minnesota, a state that has, by U.S. standards, a low incarceration rate and arguably the most humane penal system in the country, with perhaps more in common with Denmark and Germany than with Texas and Louisiana.  Yet it says something that Mark Dayton, one of the most progressive governors in the country, has a more merciless default setting than virtually all of his executive predecessors from the mid-20th century.  Minnesota used to grant pardons and commutations by the barrelful: from 1940-89, the state granted 741 commutations and nearly 90 percent of all pardon applications.  Minnesota’s clemency process began to tighten in the 1970s, only to be choked off further in the 1980s. From 2000-10, the number of pardons plummeted. In the past quarter-century, Minnesota has not issued a single commutation.

The barriers to mercy are dug deeply into American politics and intellectual culture.  At the same time there is a rich tradition of clemency in this country, which can and should be tapped into.... Devotion to the Rule of Law has an ugly side in resentment of executive acts of mercy, at the level of practice and high theory.... Overall, the thrust of American legalism militates against executive clemency, which seems to many a kind of short circuit, a deus ex machina, an insult to the rule of law, smelling of elitism and monarchical whims....  (And it has to be said, occasionally this image of executive mercy as sleazy end-run around the justice system is correct: think of Bill Clinton granting a full pardon to felonious oil trader Marc Rich, whose ex-wife had been a major Democratic fundraiser.)

But in the face of this hostility to the pardon power there is a great counter-tradition of American clemency.  At the founding of the country, executive power was seen not as a violation of our self-image as a “nation of laws not men” but as a necessary and healthily legitimate part of any popular government. As Hamilton wrote in Federalist 74: “the benign prerogative of pardoning should be as little as possible fettered.”  Without pardon power, “justice would wear a countenance too sanguinary and cruel.”...

U.S. history turns out to be generously littered with acts of mass clemency.  In the 1930s, Mississippi Governor Mike Conner went to Parchman Farm, the state penitentiary, and held impromptu “mercy courts” that freed dozens of African-American prisoners, in an act that entered national folklore — as did Texas Governor Pat Neff’s pardon in 1925 of Huddie “Lead Belly” Ledbetter, who issued his clemency request in song.  In the 20th century, Governors Lee Cruce of Oklahoma, Winthrop Rockefeller of Arkansas, and Toney Anaya of New Mexico all commuted their states’ death rows down to zero upon leaving office.  Among presidents, according to political scientist P.S. Ruckman Jr’s excellent blog Pardon Power, Abraham Lincoln granted clemency every single month of his administration as an act of mercy and a canny political strategy.  Woodrow Wilson, though a teetotaler himself, pardoned hundreds convicted of booze-related infractions to signal his disapproval of Prohibition....

Reversing course on hyper-incarceration and clemency will be a generational project, and an Augean one at that. Judges and prosecutors are not the most self-effacing career group, and many would sooner eat their Civil Procedure books than admit error.... But for most people, clemency in cases of judicial and prosecutorial error is a no brainer: the law’s finality should not come at the expense of justice.   The type of clemency we need today, however, is to remedy a problem several orders of magnitude larger, admitting not legal or judicial error but political or legislative disaster.  A rushing, roaring clemency pipeline would be an explicit recognition that the various state and federal tough-on-crime policies, virtually all of which passed with broad bipartisan support, were dead wrong....

Our incarcerated population is also aging rapidly, and though older prisoners have far lower recidivism rates, few states are availing themselves of geriatric release. For instance, Virginia in 2012 granted geriatric release to less than 1 percent of about 800 prisoners eligible, according to the state parole board. Meanwhile, as the Virginian Pilot reported, “during the same period, 84 inmates died in state prisons.” Running high-security nursing homes is neither compassionate nor fiscally sound—another reason to restore and expand clemency.

What is needed is a restoration of the kind of clemency that was once the everyday norm in this country, expanded to meet the needs of our enormous 21st-century prison population.  There will surely be stentorian howling that industrial-scale clemency is the invasive hand of overweening government power.  These fault-finders ought to be reminded that our incarceration regime is on a scale rarely seen in human history: our only competitors are third-century BC “legalist” China; the late, off-the-rails Roman Empire; and the Soviet Union from 1930-55.  Routinized clemency on a grand scale will be necessary to tame this beast.

To say that mass incarceration is an issue best addressed by the legislature, not by the executive, is theoretically correct.  But procedural rectitude should not be taken to the point of sadism, ignoring the tens of thousands of harshly sentenced prisoners who are already stuck halfway through the penal snake’s digestive tract.  Besides, this would hardly be the first time that elected officials have used the pardon power as a tool to alter policy.  To give one more glorious example, on Christmas Day in 1912, Governor George Donaghey of Arkansas pardoned 360 state prisoners as a condemnation of the state’s brutal and corrupt “convict leasing” system, making national headlines and dealing a death blow to the corrupt practice.

The time is as ripe as it will ever be for industrial-scale clemency . Even with an 11 percent average increase in homicides in big American cities for 2015 so far (bringing the nation back to 2012 murder levels), violent crime is as low as it’s been since the early 1960s....  How we proceed with clemency is not just about how we treat thousands of prisoners..., it is about how we treat ourselves. According to Shakespeare’s most famous courtroom speech, mercy “blesseth him that gives and him that takes: ‘Tis mightiest in the mightiest: it becomes the throned monarch better than his crown.” With an expansion of the pardon power, we have the opportunity to rule ourselves as monarchs, with all the magnanimity and grace that implies. Or we can remain a nation of vindictive jailers that lectures the rest of the world about freedom.

December 22, 2015 in Clemency and Pardons, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Monday, December 21, 2015

Federal judge enjoins Tennessee county's privatized probation system operating like debtors' prison

As reported in this local article, "Judge's order frees 13 held for not paying probation fees," a group of probationers got a holiday gift in the form of a significant federal judicial order preventing a locality for jailing low-level offenders for failing to pay fines or court costs. Here are the basics:

Heather Keller is looking forward to spending Christmas with her children after a federal judge's order set her free from the Rutherford County Detention Center Friday afternoon. A day earlier, a federal judge in Nashville granted an injunction that prevented officials and probation supervisors in Rutherford County from holding people in jail for certain violations or only because they could not pay fees. It also said that anyone being held for those reasons should be let go.

Keller, 35, was one of 13 inmates released from the jail in Murfreesboro who were held there because they could not pay fees to the private company contracted to oversee the Rutherford County misdemeanor probation system. The injunction that won Keller’s release was part of a lawsuit filed against Providence Community Corrections, which has changed its name to Pathways Community Corrections.

The suit was filed in October and accuses Rutherford County and PCC of working together to extort people on probation there by charging excessive fees. Many of the seven people named in the lawsuit rely on government assistance and have said in court testimony or documents that PCC's excessive fees leave them struggling to pay bills and facing extended probation terms because they cannot pay court costs.

It is a practice Alec Karakatsanis, attorney for the plaintiffs, likens to the operation of a debtors' prison. Karakatsanis said Sharp's order is only the beginning of possible probation reform in Rutherford County.

“We will fight to end permanently what we believe to be the rise of a modern debtors' prison system in which the poor and destitute are jailed and threatened with jail solely because of their inability to make monetary payments to a private company and their local government,” Karakatsanis said. “This is a very important ruling for impoverished people in Tennessee.”

The injunction was granted by Chief District Judge Kevin Sharp in Nashville. In addition to freeing these prisoners, Sharp also ordered PCC immediately stop the practice of violating probationers solely for non-payment of fees.

Keller was originally arrested for driving on a suspended license and since has been jailed twice for non-payment of probation fees, she said. “I’ve spent more time in jail for non-payment than the original charge,” Keller said.

And Sharp ordered Rutherford County Sheriff Robert Arnold to free any inmates held on violation of probation charges stemming solely from non-payment of fees and fines.

The federal district judge's 20-page injunction order in Rodriguez v. Providence Community Corrections is available for download here:  Download Opinion Granting Injunction

December 21, 2015 in Fines, Restitution and Other Economic Sanctions, Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Friday, December 18, 2015

"Dignifying Madness: Rethinking Commitment Law in an Age of Mass Incarceration"

The title of this post is the title of this notable new paper available via SSRN authored by Jonathan Simon and Stephen Rosenbaum. Here is the abstract:

Modern nation-states have been trapped in recurring cycles of incarcerating and emancipating residents with psychiatric disabilities.  New cycles of enthusiasm for incarceration generally commence with well-defined claims about the evils of allowing “the mad” to remain at liberty and the benefits incarceration would bring to the afflicted.  A generation or two later, at most, reports of terrible conditions in institutions circulate and new laws follow, setting high burdens for those seeking to imprison and demanding exacting legal procedures with an emphasis on individual civil liberties.  Today, we seem to be arriving at another turn in the familiar cycle.  A growing movement led by professionals and family members of people with mental health disabilities is calling for new laws enabling earlier and more assertive treatment.

December 18, 2015 in Offender Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (3)

Effective accounting of how hard it is to account accurately for intricacies of modern mass incarceration

1-OdMX2oryFZyj4uCuqW5n8wThe strangely named Xenocrypt on the website Medium has a terrific new posting titled "Why You Don’t Understand Mass Incarceration." I recommend a full read of this lengthy post, and here are excerpts highlighting why:

“Mass incarceration” usually refers to the historically high U.S. incarceration rate, which is the share of the population in state and federal prison at any given time.  Starting in 1980 or so, incarceration rates had huge growth after decades of relative consistency....

But there’s a big problem.  The incarceration rate  —  who’s in prison right now — follows from two basic questions, which those famous graphs (and phrases like “the prison population”) mash together:

1. Who did we send to prison in the first place, and for what?  How much has “mass incarceration” meant expanded incarceration?  Which people are going to prison who’d never have gone under other policies? There’s a moral version of the question, too: What should we send people to prison for?

2. How long were they in prison for?  How much has “mass incarceration” meant deepened incarceration?  Which people would have gone to prison anyway but are spending more time incarcerated, either serving longer sentences or cycling through the system over and over again?  Again, there’s a moral version of the question: How long should people be in prison for?

Both of those questions are important, but they’re distinct topics, at right angles to each other analytically and morally: “should drug offenders go to prison at all?” is pretty different from “how long should convicted murderers serve in prison?”.  The next time you read an article about incarceration in the popular press or on social media, though, try to see if it’s even aware of the distinction. (For example, “reducing the prison population” is a pretty meaningless phrase  —  does it mean having fewer people go to prison or having people go to prison for less time?  One reason you don’t understand mass incarceration: the phrase “the prison population”.)

It’d be hard enough to understand how those two questions interact if we knew how to answer both of them, but no one knows how to answer either one.  There’s been a lot of impressive, interesting work trying to answer who goes to prison for how long (John Pfaff has been a big influence on this piece) and even the best of it is hampered by limited or unreliable data and difficult inferences, while obviously there isn’t much consensus on who should....

Quick: How many people really were sent to state or federal prison in the United States since 1978?  Don’t be surprised if you don’t know, since as far as I can tell no one else does either.

If you care about incarceration, then that should trouble you. This is, after all, the set of human beings that we’re talking about when we talk about mass incarceration. If we really understood mass incarceration then we would know a great deal about them.  We would know how many were African-American or white, how many served one, two, or ten terms in total, how many had different kinds of criminal histories prior to incarceration, how many only went to prison on drug offenses, how many went to prison on drug offenses then went back on violent offenses, and so on (and how all of those things changed over time and between different states and places).

But we don’t know any of that.  We don’t even know how to count them.  And if we don’t know how to count how many people have been to prison, then we don’t really know how mass incarceration affected real human beings....

We have some idea of how many prison terms there have been. The Bureau of Justice Statistics (BJS) lists about 12.7 million “new court commitments” to state and federal prison since 1978 in their National Prisoner Statistics (NPS) data, which is my main source here. Of course, that doesn’t mean that 12.7 million different people were sent to prison between 1978 and 2014, since some people had multiple prison terms....

Let’s say I’m right that around 7.5 million people were sent to state and federal prison since 1978.  Here’s another question that should be simple: How many of them wouldn’t have gone to prison without “mass incarceration” policies  — and what does that mean, anyway?  It’s clear that new prison terms did increase after 1978, so presumably a lot fewer people would have gone to prison without whatever it was that changed, but how many fewer people?  More like two million or more like six million?

Nobody knows, but we can make up some numbers, and maybe that’s a start.  For example we can consider a somewhat arbitrary hypothetical: What if new prison terms (new court commitments) had stayed constant per capita since 1978, when the rate was 57 in 100,000?  Under that hypothetical, there would have been about 5.6 million new prison terms since 1978, not 12.7 million.  I’ve illustrated this in the [reprinted] chart, which has the incarceration rate since 1978 in black, the rate of new prison terms in red, and the hypothetical of constant new terms per capita in blue.

December 18, 2015 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Wednesday, December 16, 2015

Two notable new papers looking at life sentences from two notable perspectives

Via SSRN, I have recently noticed two new papers providing different perspectives on life sentences. Here are titles, links and the abstracts for both interesting pieces:

"Irreducible Life Sentences: What Difference Have the European Convention on Human Rights and the UK Human Rights Act Made?" by Andrew Dyer

Abstract:  A comparison between United Kingdom (UK) and Australian law concerning irreducible life sentences indicates that human rights charters and/or other strong human rights guarantees in a jurisdiction can produce improved protections for offenders against penal populism. In a series of challenges to draconian state laws that remove any possibility of parole from ten notorious murderers, the Australian courts steadfastly refused to intervene. Without clear authority to consider such legislation’s effect on human rights, the judges were careful to avoid creating any perception that they were undemocratically overriding Parliament’s will. But while the UK approach to irreducible life sentences is more desirable than that prevailing in Australia – especially concerning child offenders – Vinter v United Kingdom and succeeding events demonstrate that even courts that have explicitly been empowered to resolve human rights controversies possess far from a complete freedom, or ability, to effect change in this emotive area.

 

"Some Facts About Life: The Law, Theory, and Practice of Life Sentences" by Melissa Hamilton

Abstract: A diverse band of politicians, justice officials, and academic commentators are lending their voices to the hot topic of correcting the United States’ status as the world’s leader in mass incarceration. There is limited focus, though, upon the special role that life sentences play in explaining the explosion in prison populations and the dramatic rise in costs that result from providing for the increased needs of aging lifers. This Article highlights various ways in which life sentences occupy unique legal and political statuses. For instance, life sentences are akin to capital punishment in likely ending in death within prison environs, yet enjoy few of the added procedural rights and intensity of review that capital defendants command. In contrast to term prisoners, lifers cannot expect to reenter civil society and thus represent an exclusionist ideological agenda. The paper reviews whether life penalties remain justified by fundamental theories of punishment in light of new evidence on retributive values, deterrence effects, and recidivism risk. It also situates life sentences within an international moral imperative that reserves life penalties, if permitted at all, for the most heinous offenders and, in any event, demands period review of all long-term prison sentences.

This article provides a novel perspective, too, by presenting an empirical study in order to further investigate the law and practice of life sentences. Utilizing federal datasets, descriptive statistics and a multiple regression analysis offer important insights. The study makes an original contribution to the literature by exploring the salience of certain facts and circumstances (including demographic, offense-related, and case processing variables) in accounting for life sentence outcomes in the federal system. While some of the attributes of life sentenced defendants are consistent with current expectations, others might be surprising. For example, as expected, sentencing guideline recommendations, the presence of mandatory minimums, and greater criminal history predicted life sentences. Results also supported the existence of a trial penalty. On the other hand, lifers in the federal system were not representative of the most violent offenders or worst recidivists. Life sentences were issued across a variety of violent and nonviolent crimes, and in recent years a substantial percentage presented with minimal criminal histories. Regional disparities in the use of life sentences were also indicated. In concluding, this Article reviews potential remedies to the overreliance upon life penalties in the American justice system.

December 16, 2015 in Prisons and prisoners, Recommended reading, Scope of Imprisonment | Permalink | Comments (0)

Thursday, December 10, 2015

NAAUSA sends letter opposing federal sentencing reforms on behalf of forty former federal officials

As reported in this new Washington Examiner article, "[f]orty former top federal law enforcement officials want senators to hit the breaks on bipartisan legislation that would roll back mandatory minimum sentences for drug dealing and other crimes." Here is more:

The group, which includes former New York mayor and U.S. Attorney Rudy Giuliani, former Attorney General John Ashcroft and drug control czar William Bennett, say sentencing laws enacted in the 1980s and 1990s led to the dramatic dip in crime rates that began 25 years ago, a claim disputed by many liberals and criminologists.

"Our system of justice is not broken," the former officials wrote in a Dec. 10 letter sent by the National Association of Assistant United States Attorneys to Senate leaders. "Mandatory minimums and proactive law enforcement measures have caused a dramatic reduction in crime over the past 25 years, an achievement we cannot afford to give back." The officials call for leaving the current sentencing regime alone.

"Our current sentencing structure strikes the right balance between congressional direction in the establishment of sentencing levels and the preservation of public safety," they write. The former officials express alarm about proposals to retroactively alter previously applied sentencing guidances, a step they say would cause the release of "thousands of armed career criminals."...

Some senior Republicans, including Senate Judiciary Committee Chairman Charles Grassley, R-Iowa, support scraping some minimum sentencing laws, though Grassley backs a less sweeping bill than [Senator Rand] Paul. The GOP support has helped make sentencing reform a popular issue, widely hailed as a rare area where bipartisan cooperation is possible.

But the law enforcement officials' letter shows reports of an emerging bipartisan consensus are exaggerated. The letter's signatories include officials who helped enact the tough sentencing laws now under fire. Michele Leonhart, who headed the Drug Enforcement Agency under Obama, is a notable Democratic appointee who broke with her former boss by signing on.

Sens. Jeff Sessions, R-Ala., and Marco Rubio, R-Fla., another a presidential hopeful, are among conservatives gearing up to oppose to sentencing reform, raising the chance the issue could divide Republicans.

I cannot yet find a copy of this NAAUSA letter on-line, but I will try to post it when I can get access to a copy.

UPDATE:  A helpful colleague sent me a copy of the letter for posting here:  Download Former_Official_Ltr_1210-2015-FINAL (1)

December 10, 2015 in Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5)

"Mass Incarceration: The Whole Pie 2015"

Pie2015The title of this post is the title of this valuable new on-line report from the Prison Policy Initiative. Everyone interested in the details essentials of modern mass incarceration ought to check out the full report (and the larger version of the pie graphic reprinted here). Here is part of the report's introductory text and subsequent discussion:

Wait, does the United States have 1.4 million or more than 2 million people in prison? And do the 636,000 people released every year include the people getting out of local jails?  Frustrating questions like these abound because our systems of federal, state, local, and other types of confinement — and the data collectors that keep track of them — are so fragmented.  There is a lot of interesting and valuable research out there, but varying definitions and other incompatibilities make it hard — for both people new to criminal justice and for experienced policy wonks — to get the big picture.

This report offers some much needed clarity by piecing together this country’s disparate systems of confinement.  The American criminal justice system holds more than 2.3 million people in 1,719 state prisons, 102 federal prisons, 2,259 juvenile correctional facilities, 3,283 local jails, and 79 Indian Country jails as well as in military prisons, immigration detention facilities, civil commitment centers, and prisons in the U.S. territories.  And we go deeper to provide further detail on why people in the various systems of confinement are locked up.

While the numbers in each slice of this pie chart represent a snapshot of our correctional system, the graphic does not capture the enormous churn in and out of our correctional facilities and therefore the many more lives that are affected by the criminal justice system.  In addition to the 636,000 people released from prisons each year, over 11 million people cycle through local jails each year.  Jail churn is particularly high because at any given moment a majority of the people in local jails have not been convicted and are in jail because they are either too poor to afford bail and are being held pretrial, or because they have just been arrested and will make bail in the next few hours or days.  The remainder of the people in jail — almost 200,000 — are serving time for minor offenses, generally misdemeanors with sentences under a year.... 

Now, armed with the big picture of how many people are locked up in the United States in the various types of facilities and for what offenses, we have a better foundation for the long overdue conversation about criminal justice reform.  For example, the data makes it clear that ending the War on Drugs will not alone end mass incarceration, and it demonstrates why the policymakers and advocates who see ending the War on Drugs as a politically acceptable first step towards ending mass incarceration must take great care that their actions both constitute actual progress for people with drug offenses and do not make further reforms more difficult.  Looking at the “whole pie” also opens up other conversations about where we should focus our energies:

  • What is the role of the federal government in ending mass incarceration? The federal prison system is just a small slice of the total pie, but the federal government can certainly use its financial and ideological power to incentivize and illuminate better paths forward.

  • Are state officials and prosecutors willing to rethink both the War on Drugs and the reflexive policies that have served to increase both the odds of incarceration and length of stay for “violent” offenses?

  • Do policymakers and the public have the focus to also confront the geographically and politically dispersed second largest slice of the pie: the 3,283 local jails? Given that the people behind bars in this country are disproportionately poor and shut out of the economy, does it make sense to lock up millions of people for a few days at a time for minor offenses? Will our leaders be brave enough to ask the public to support smarter investments in community-based drug treatment and job training? Or will they support the continued use of jails as mass incarceration’s front door?

December 10, 2015 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2)

Monday, December 07, 2015

Notable new BJS data on veterans in state and federal prisons and local jails

As reported in this official press release, titled "Fewer Veterans In Prison And Jail In 2011-12 Than 2004," the Bureau of Justice Statistics released a new report on incarcerated vets. Here are excerpts from the first page of this detailed, data-heavy report:

In 2011–12, an estimated 181,500 veterans (8% of all inmates in state and federal prison and local jail excluding military-operated facilities) were serving time in correctional facilities. This represented a decrease from the estimated 206,500 incarcerated veterans (9% of the total incarcerated population) in 2004, and was consistent with the decline in the number of veterans in the U.S. general population. While the number of veterans in prison and jail increased along with growth in the overall number of persons incarcerated between 1980 and 2008, the proportion of incarcerated veterans has declined, down from an estimated 24% of all persons incarcerated in state prison and jail in 1978 (federal inmates were not surveyed in 1978).

In 1978, 19% of U.S. adult residents, 24% of prisoners, and 25% of jail inmates were military veterans. By 2011–12, veterans accounted for 9% of the general population, 8% of state and federal prisoners, and 7% of jail inmates....

The total incarceration rate in 2011–12 for veterans (855 per 100,000 veterans in the United States) was lower than the rate for nonveterans (968 per 100,000 U.S. residents). „

Non-Hispanic black and Hispanic inmates made up a significantly smaller proportion of incarcerated veterans (38% in prison and 44% in jail), compared to incarcerated non-Hispanic black and Hispanic nonveterans (63% in prison and 59% in jail). „

A greater percentage of veterans (64%) than nonveterans (48%) were sentenced for violent offenses....

„ More than three-quarters (77%) of incarcerated veterans received military discharges that were honorable or under honorable conditions.... „

„ A quarter of veterans in prison (25%) and less than a third of veterans in jail (31%) reported that they had been in combat while in the military. „

About half of all veterans in prison (48%) and jail (55%) had been told by a mental health professional they had a mental disorder. „ Incarcerated veterans who saw combat (60% in prison and 67% in jail) were more likely than noncombat veterans (44% in prison and 49% in jail) to have been told they had a mental disorder.

December 7, 2015 in Data on sentencing, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Sunday, December 06, 2015

Latest USSC retroctivity data suggest prison savings over $1.4 billion from drugs-2 guideline amendment retroactivity

I just noticed on the US Sentencing Commission's website this new document titled simply "2014 Drug Guidelines Amendment Retroactivity Data Report." This report, dated December 2015, provides "information concerning motions for a reduced sentence pursuant to the retroactive application of Amendment 782 [the so-called drugs -2 amendment]. The data in this report reflects all motions decided through September 30, 2015 and for which court documentation was received, coded, and edited at the Commission by November 30, 2015.

The subsequent official data indicate that, thanks to the USSC's decision to make its "drugs -2" guideline amendment retroactive, well over 20,000 federal prisoners have had their federal drug prison sentences reduced by an average of just about two years.

So, using my typical (conservative) estimate of each extra year of imprisonment for federal drug offenders costing on average $35,000, the USSC's decision to make its "drugs -2" guideline amendment retroactive so far appears to be on track to save federal taxpayers over $1.4 billion dollars. As I have said before and will say again in this context, kudos to the US Sentencing Commission for providing at least some proof that at least some government bureaucrats inside the Beltway will sometimes vote to reduce the size and costs of the federal government.

December 6, 2015 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Thursday, December 03, 2015

"The government is abusing mandatory minimums: How law enforcement is ruining a generation of Americans"

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

The Obama administration has called for the criminal justice system to be reformed and for the population of our enormous prison system to be reduced, encouraging reform efforts in Congress and pledging to speed up a moribund clemency process so that people serving unjustly harsh sentences can be freed.  The Department of Justice has taken a lead role, forcing local police departments to clean house and, under former Attorney General Eric Holder, pledging to restrict federal prosecutors’ use of harsh mandatory minimums....

There is growing concern, however, that federal prosecutors in the 94 U.S. Attorneys’ Offices nationwide are implementing Holder’s directives unevenly — or even resisting implementation entirely.  David Patton and Jon Sands, co-chairs of the Federal Defender Legislative Committee, wrote in a recent letter to House Judiciary Committee leadership that “there is widespread disregard of DOJ policy among line federal prosecutors about when to trigger those severe enhancements.  And the enhancements are regularly used for no other reason than to force people to waive their trial rights.”

 851 enhancements double five- and ten-year mandatory minimum drug sentence for offenders with one prior “felony” drug conviction, and impose a life without parole sentence for offenders with two drug priors facing a ten-year sentence.  What counts as a so-called felony, however, is remarkably broad [and] it can include state convictions so minor that they did not result in jail time. It can even include state misdemeanors...

Steve Cook, the president of the National Association of Assistant U.S. Attorneys ... is leading a campaign against sentencing reform legislation in Congress, and he disagrees that prosecutors use 851s to coerce cooperation. “One of the criticisms I hear frequently from commentators is prosecutors want these mandatory minimums and 851s so they can strong arm guilty pleas. Well, that isn’t the case,” Cook said. “851s, those were designed to put recidivists in prison for longer.”

There is evidence, however, to suggest that that is often precisely how they are used. Judge Gleeson detailed one such instance in a 2013 opinion protesting his own sentencing of Lulzim Kupa, and the prosecutorial abuse of mandatory minimums more generally. Based on more than five kilograms of cocaine alone, Kupa faced a 10-year mandatory minimum sentence. But Kupa had two prior marijuana trafficking convictions.  If prosecutors so decided, they would trigger life without parole upon conviction.

On March 5, 2013, prosecutors offered Kupa a plea deal.  The government would withdraw the 10-year mandatory minimum and instead recommend a sentence of between 110-137 months.  With good time credits, Kupa could serve seven years and ten months, Gleeson wrote.  But Kupa had just one day to think the agreement over, and he didn’t accept it.  And so prosecutors twisted the screws tighter, filing the 851 information detailing his two prior marijuana convictions. Unless prosecutors withdrew the notice, he would be automatically sentenced to life without parole upon conviction. “Just like that, a defendant for whom the government, only ten days earlier, was willing to recommend an effective sentence of less than eight years was looking at life in prison without the possibility of parole,” wrote Gleeson.

December 3, 2015 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

Wednesday, December 02, 2015

"The Promises and Perils of Evidence-Based Corrections"

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

Public beliefs about the best way to respond to crime change over time, and have been doing so at a rapid pace in recent years.  After more than forty years of ever more severe penal policies, the punitive sentiment that fueled the growth of mass incarceration in the United States appears to be softening. Across the country, prison growth has slowed and, in some places, has even reversed.  Many new laws and policies have enabled this change. The most prominent of these implement or reflect what have been called "evidence-based practices" designed to reduce prison populations and their associated fiscal and human costs.  These practices "which broadly include the use of actuarial risk assessment tools, the development of deterrence-based sanctioning programs, and the adoption of new supervision techniques" are based on criminological research about "what works" to reduce convicted individuals' odds of committing future crimes.

Because evidence-based practices focus on reducing crime and recidivism, they are usually promoted as progressive tools for making the criminal justice system more humane. And while many have the potential to do just that, evidence-based practices are not inherently benign with respect to their effect on mass incarceration and the breadth of the penal state.  In their reliance on aggregate data and classification, many such practices have as much in common with the "new penology" that enabled mass incarceration as with the neorehabilitationism they are ordinarily thought to represent.

Without denying the contribution that such practices are making to current reform efforts, this Article seeks to highlight the unintended ways in which evidence-based tools could be used to expand, rather than reduce, state correctional control over justice-involved individuals. It explains what evidence-based practices are, why they have gained traction, and how they fit into existing paradigms for understanding the role of the criminal justice system in the lives of those subject to its control.  Finally, it calls on policymakers and practitioners to implement these practices in ways that ensure they are used to improve the quality and fairness of the criminal justice system and not to reinforce the institutional constructs that have sustained the growth of the penal state.

December 2, 2015 in Data on sentencing, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4)

Sunday, November 29, 2015

Pollard, parole and the possibilities for potent sentencing reform

Writing at Salon, Daniel Denvir has this interesting and useful take on the recent release of convicted spy Jonathan Pollard. Here is the full headline of this piece: "People are celebrating this spy’s release from prison. Here’s what they should be doing instead. Jonathan Pollard sold intel to Israel. 30 years later, he's free. But thousands of others have no chance of parole." Here are excerpts:

Last Friday, something extraordinary happened: Jonathan Pollard, a Naval intelligence analyst sentenced to life in prison for extensively spying for Israel, was released from federal prison on parole 30 years after his arrest. Most coverage, now and in recent decades, has focused on the campaign waged by Israeli and Jewish-American leaders to free him, and the vehement opposition mounted by American intelligence figures.

The real scandal, however, is that most federal prisoners, including drug offenders make up nearly half of a federal prison population of nearly 200,000, have no chance at parole. Pollard’s crime was incredibly serious, and many drug offenders who committed crimes orders of magnitude less harmful are serving harsh mandatory minimums of 5, 10 and 20 years, if not life — all without the possibility of parole.

Pollard’s release has been covered in the context of national security intrigue. In fact, his parole reflects a quirk in federal sentencing law: He had a shot at parole because he committed his crime before parole eligibility was abolished for all those convicted of committing a federal crime on or after November 1, 1987, amidst a wave of tough-on-crime politicking.

Pollard is a true anomaly. According to a 2014 Congressional Research Service report, roughly 3 percent of federal prisoners are eligible for parole. When Pollard finally speaks to the media—he is reportedly not allowed to under the conditions of his parole—it would be good of him to express some solidarity with the far less dangerous fellow federal inmates he left behind.

The abolition of federal parole, and its sharp limitation or elimination in many states, has, like the introduction of harsh mandatory minimum sentences, been a major driver of this country’s extraordinary prison population boom. From 1988 to 2012, the average time federal inmates served rose from 17.9 to 37.5 months, according to The Pew Charitable Trusts. The federal prison population rose during that same period from 49,928 inmates to 217,815....

Releasing Pollard was not a bad thing. Few people deserve punishment without end. We punish most every crime far too harshly in the United States, which is how we came to construct a system of human punishment unmatched by any nation on earth. But Pollard’s crimes were extremely serious. Compare his crimes to those committed by Alton Mills, who is serving a life without parole sentence after being convicted of couriering crack because of two prior, extremely minor, drug possession convictions. Mills’ family misses him too. And desperately so.

It’s not just a federal problem but also a matter for the states, where the bulk of American prisoners are incarcerated. Fourteen states joined the federal government in eliminating or severely restricting parole, according to a Marshall Project investigation.

“In the early 1990s, the New York state board voted to parole more than 60 percent of those eligible. That rate then went into a two-decade decline, dipping below 20 percent in 2010,” the investigation found. “In many states, parole boards are so deeply cautious about releasing prisoners who could come back to haunt them that they release only a small fraction of those eligible — and almost none who have committed violent offenses, even those who pose little danger and whom a judge clearly intended to go free.”

Sen. Bernie Sanders, a Democratic candidate for president, has introduced legislation that would reestablish federal parole. Most media attention has been focused on bill provisions banning private prisons. But reestablishing parole would be far more consequential. (The Clinton campaign did not respond to requests for comment.)

Way back in 2009 in this Symposium article published in the Florida Law Review, I made the claim that model modern sentencing reforms should include parole mechanisms because "parole boards possess both the effective legal tools and an ideal institutional perspective to reduce incarceration rates and mitigate extreme punishments." I therefore agree wholeheartedly agree with the suggetion in Denvir's piece that reinstituting robust parole mechanisms and opportunities in many sentencing systems would provide a truly potent path for future sentencing reforms.

November 29, 2015 in Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Friday, November 27, 2015

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

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

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

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

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

Spotlighting why ending the drug war could make a big dent in mass incarceration

This new Washington Post Wonkblog posting by Christopher Ingraham, headlined "Drug offenders make up nearly one-third of prison admissions, new analysis shows," details one reason why I think ending the so-called "war on drugs" would be a very important first step toward tackling the problem of modern mass incarceration.  Here is how it starts (with links from the source):

Drug policy activists long have said that decriminalizing parts of the drug trade would relieve some of the burden on overcrowded prisons.  But some researchers have pushed back against this notion in recent years.  They point out that drug offenders account for only about 1 in 5 state and federal inmates.  The Urban Institute showed earlier this year that cutting drug admissions in half would reduce the state prison population by only about 7 percent.  Facts like these have led some to conclude that ending the drug war will do little to end the mass incarceration crisis.

But in a new analysis published this week, Brookings Institution fellow Jonathan Rothwell says that arguments about the impact of drug reforms on prison populations have overlooked one key distinction: the difference between the number of people in prison at any given time, and the number of people moving into and out of prison.  Rothwell calls this "stock and flow."

He points out that while drug offenses account for only 20 percent of the prison population, they make up nearly one-third — 31 percent — of the total admissions to prison.  The reason for the difference?  Drug offenders typically serve shorter sentences than, say, murderers or other violent criminals.  So simply looking at the number of people in prison at a given point in time understates the true impact of drug laws on incarceration.

"Drug crimes have been the predominant reason for new admissions into state and federal prisons in recent decades," Rothwell writes.  "In every year from 1993 to 2009, more people were admitted for drug crimes than violent crimes."

Rothwell agrees that rolling back the drug war won't totally solve the incarceration problem. "But it could help a great deal, by reducing exposure to prison," he writes.  Even a brief jail or prison sentence — even just an arrest — can have dire consequences for people at the poorer margins of society.  A 30-day jail term for a pot bust, for instance, can mean the loss of a job, the loss of income, and an eventual turn to crime to survive.

November 27, 2015 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Thursday, November 26, 2015

So thankful for federal judges encouraging prosecutors to reconsider extreme sentence... but...

I wish that such reconsideration of extreme sentences were more the norm than the exception in our modern era of mass incarceration.  The notable new judicial trend for which I am thankful was discussed earlier this week in this Wall Street Journal article headlined "Persuasive Judges Win Reduced Sentences for Some Convicts: Federal prosecutors agree to do-overs in a handful of cases, another sign of shifting attitudes about punishment."  Here are excerpts:

Francois Holloway became a free man this year three decades earlier than planned, thanks to a well-placed ally. U.S. District Judge John Gleeson in Brooklyn, N.Y., who put Mr. Holloway away in 1996 for participating in armed carjackings, had lobbied prosecutors for years to reduce Mr. Holloway’s 57-year sentence.

Federal trial judges have little leeway in sentencing when prosecutors trigger mandatory-minimum laws that set floors for punishment, and they have few means of revisiting closed cases, unless new evidence comes to light or a major legal error was committed. But they can be persuasive.  Federal prosecutors have agreed in recent years to sentence reductions in a handful of cases, most after public pressure from judges.

Such do-overs are another sign of shifting attitudes about punishment and growing bipartisan support for criminal justice policies that emphasize rehabilitation.  The practice does have its detractors, who say such relief should come from the White House in the form of commutations and pardons, not from the courthouse.

So far, the cases have tended to involve defendants who rejected plea deals, lost at trial and received prison terms several times larger than they would have if they had they pleaded guilty, sometimes called a “trial penalty.” Mr. Holloway balked at a deal that would have sent him to prison for about 11 years. He ended up receiving a mandatory minimum of 45 years because one of his co-assailants brandished a gun during the three carjackings. He earned the balance for stealing the vehicles, per federal sentencing guidelines that were binding on Judge Gleeson at the time....

After Mr. Holloway lost his appeal, he turned to a federal law frequently used by federal prisoners to challenge their sentences as excessive or to show that their lawyers were ineffective to the point of depriving them of their rights. At the urging of Judge Gleeson, the U.S. attorney’s office in Brooklyn last year withdrew its opposition to Mr. Holloway’s petition, citing his “extraordinary” record while in prison, as well as the responses of Mr. Holloway’s victims, who supported his early release. Attorney General Loretta Lynch headed the U.S. attorney’s office at the time.  Judge Gleeson vacated two of Mr. Holloway’s convictions and resentenced him to time served. “Prosecutors are almost never criticized for being aggressive,” he wrote in a July 2014 ruling lauding Ms. Lynch’s move. “Doing justice can be much harder.”

U.S. attorneys have accepted reduced punishments “where prosecutors, the court and victims have agreed that a sentence is unjust,” but such cases are rare, said Melanie Newman, a spokeswoman for Ms. Lynch. “The government nearly always seeks to preserve the finality of sentences where there is no legal flaw,” Ms. Newman said.

Harlan Protass, a partner at Clayman & Rosenberg LLP who represented Mr. Holloway, said the case has become a model for taking a second look at sentences.  Mr. Protass and Sam Sheldon, a partner at Quinn Emanuel Urquhart & Sullivan LLP in Washington, D.C., hope to establish a law-school clinic with the mission of persuading the government to allow new sentence hearings and reduced prison terms for certain offenders....

In another New York case, Randy Washington, a crack-cocaine dealer from the Bronx convicted of armed robbery, found a friend in his sentencing judge, who last year admonished prosecutors to consider whether the 52-year mandatory-minimum prison sentence Mr. Washington faced was “worthy of the public’s trust and confidence.” His punishment later was cut in half.

Prosecutors in Oklahoma agreed this year to allow an Army National Guard veteran sentenced to life for cocaine smuggling to leave prison after serving nearly three decades.  In Atlanta, the government shortened from life to 25 years the sentence of a man convicted of cocaine distribution.  Meanwhile, prosecutors in Montana dismissed several gun and drug counts against a medical-marijuana grower, lopping off 80 years of an 85-year mandatory sentence....

Some federal prosecutors have declined requests by federal judges for shorter sentences.  In Philadelphia, U.S. District Judge Jan DuBois recently implored prosecutors for a penalty that “better serves the interests of justice” in the case of Tyrone Trader, who was convicted for his role as a street-level dealer in a cocaine-trafficking conspiracy...  Mr. Trader received a mandatory life sentence under federal law, after the Justice Department filed a notice with the court showing Mr. Trader had prior felony drug convictions.  The other street-level dealers who took pleas have been released from prison, Judge DuBois noted, adding that the average federal sentence for murder was less than 23 years in fiscal 2014.  “It is difficult to see how a sentence of life imprisonment in Trader’s case is just,” Judge DuBois wrote in an August ruling.

U.S. Attorney Zane David Memeger said in a statement that the government carefully considers each case before making charging decisions and that there was “no basis” for reducing Mr. Trader’s sentence.

November 26, 2015 in Examples of "over-punishment", Mandatory minimum sentencing statutes, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Monday, November 23, 2015

NY Times editorial: "Cut Sentences for Low­-Level Drug Crimes"

This New York Times editorial provides a glimpse into the latest state (and notable criticisms) of federal statutory sentencing reform making slow-but-steady progress in Congress. Here is how it starts and ends:

Now that Congress is within sight of passing the most significant federal sentencing reforms in a generation, it’s worth taking a closer look at where the legislation falls short.

The main driver of the federal prison population is, by far, the dramatic increase in the time people spend behind bars — specifically, those convicted of drug offenses, who account for nearly half of the nation’s 199,000 federal inmates. From 1988 to 2012, the average time served for drug crimes more than doubled in length, according to a new report by the Pew Charitable Trusts.  That increase in the length of drug sentences comes at a great expense: an estimated $1.5 billion each year, based on how much it costs to keep a federal inmate behind bars.

The new sentencing­-reform bills now moving through the Senate and House would help reduce some of the longest mandatory­-minimum sentences, including ending the use of life without parole for drug crimes, and would give judges more power to impose a shorter sentence when the facts of a case warrant it.

But these fixes do not reach to the heart of the problem, which is that the vast majority of federal drug offenders serving outsize sentences are in for low-level, non-violent crimes, and have no serious history of violence. More than half of the current drug­-offender population has no violent history at all, according to a new analysis by the Urban Institute and the Charles Colson Task Force on Federal Corrections.  Less than 14 percent were sentenced for using or threatening to use violence, or directing its use.  And only 14 percent were sentenced for having a high-­level or leadership role in a drug operation, the study found....

A critical fix Congress could make right now would be to change the law so that a person’s sentence is determined by his role in a drug operation, and not by the entire amount of drugs found in that operation, which is a poor measure of culpability.

One version of the sentencing reform legislation, introduced in the House by Jim Sensenbrenner, Republican of Wisconsin, and Robert Scott, Democrat of Virginia, would have addressed this issue squarely by applying many mandatory minimum sentences only to the leaders of a drug organization. But that smart idea was heavily watered down in the bills passed by the Senate and House Judiciary Committees in recent days.  Congress should resurrect this sensible provision, which would go a long way toward bringing some basic fairness and rationality back into the nation’s horribly skewed drug laws.

Some recent related posts:

November 23, 2015 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Saturday, November 21, 2015

Latest BJS official data show reduction of offenders on probation and parole

As reported in this official press release, the Bureau of Justice Statistics this past week released this report, titled "Probation and Parole in the United States, 2014," providing the latest official data on offenders under community supervision throughout the nation. Here are some data highlights from the press release:

The one-percent decline in the number of adults supervised in the community on probation or parole between yearend 2013 and 2014 marked the seventh consecutive year of decline in the population, the Bureau of Justice Statistics (BJS) announced today.  In the past seven years, adults under community supervision declined between 0.5 percent and 2.6 percent annually, or by nearly 400,000 offenders over the 7-year period.

Between yearend 2008 and 2014, the probation population fell 10 percent, while the parole population increased nearly 4 percent.  Probation is a court-ordered period of supervision in the community, generally used as an alternative to incarceration, and parole is a period of conditional supervised release in the community following a prison term.

An estimated 4.7 million adults were under correctional community supervision in the United States on December 31, 2014, down 45,300 offenders from the same day in 2013. The decline in community supervision was due to a drop in the number on probation that was offset by an increase in the number on parole. Between yearend 2013 and 2014, the probation population decreased by 46,500 offenders (from 3,910,600 to 3,864,100 offenders) while the parole population increase by 1,700 offenders over the same period (from 855,200 to 856,900 offenders)....

Other probation findings include —

  • About 25 percent of probationers were female in 2014, up from 22 percent in 2000....
  • Of all persons on probation during 2014, the incarceration rate (5 percent) among those violating their conditions of supervision — including incarceration for a new offense, a revocation and other reasons — was similar to the rate observed in 2013 (5.4 percent).

Other parole findings include —

  • Twelve percent of parolees were female in 2014, unchanged from 2000.
  • In 2014, nearly a third (31 percent) of parolees were being supervised for violent offenses, about a third (31 percent) for drug crimes and nearly a quarter (22 percent) for property offenses....
  • Among all persons on parole during the year, an estimated 9 percent were reincarcerated in 2014, a rate similar to 2013.

November 21, 2015 in Data on sentencing, Detailed sentencing data, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (2)

Friday, November 20, 2015

"Prison Time Surges for Federal Inmates"

PSPP_PrisonTime_fig1The title of this post is the headline of this notable Issue Brief released this wqeek by the Pew Public Safety Performance Project. Here is how it gets started (with notes omitted):

The average length of time served by federal inmates more than doubled from 1988 to 2012, rising from 17.9 to 37.5 months. Across all six major categories of federal crime — violent, property, drug, public order, weapon, and immigration offenses — imprisonment periods increased significantly. (See Figure 1.)  For drug offenders, who make up roughly half of the federal prison population, time served leapt from less than two years to nearly five.

Mandatory minimum sentencing laws, the elimination of parole, and other policy choices helped drive this growth, which cost taxpayers an estimated $2.7 billion in 2012 alone.  Despite these expenditures, research shows that longer prison terms have had little or no effect as a crime prevention strategy — a finding supported by data showing that policymakers have safely reduced sentences for thousands of federal offenders in recent years.

Two factors determine the size of any prison population: how many offenders are admitted to prison and how long they remain. From 1988 to 2012, the number of annual federal prison admissions almost tripled, increasing from 19,232 to 56,952 (after reaching a high of 61,712 in 2011). During the same period, the average time served by released federal offenders more than doubled, rising from 17.9 to 37.5 months.  These two upward trends ...caused a spike in the overall federal prison population, which jumped 336 percent, from 49,928 inmates in 1988 to an all-time high of 217,815 in 2012.  One study found that the increase in time served by a single category of federal offenders — those convicted of drug-related charges — was the “single greatest contributor to growth in the federal prison population between 1998 and 2010.”

The long-term growth of this population has driven a parallel surge in taxpayer spending.  As Pew reported in February 2015, federal prison spending rose 595 percent from 1980 to 2013, from $970 million to more than $6.7 billion in inflation-adjusted dollars.  Taxpayers spent almost as much on federal prisons in 2013 as they spent in 1980 on the entire U.S. Justice Department — including the Federal Bureau of Investigation, the Drug Enforcement Administration, and all U.S. attorneys.

November 20, 2015 in Data on sentencing, Detailed sentencing data, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Thursday, November 19, 2015

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

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

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

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

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

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

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

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

Tuesday, November 17, 2015

"Aging in Prison: Reducing Elder Incarceration and Promoting Public Safety"

Screen-Shot-2015-11-11-at-12.11.33-PMThe title of this post is the title of this notable new report from published by the Center for Justice at Columbia University.  Here is the report's executive summary:

Columbia University’s Center for Justice, with Release Aging People in Prison/ RAPP, the Correctional Association of New York, the Osborne Association, the Be the Evidence Project/Fordham University, and the Florence V. Burden Foundation, coordinated a symposium in Spring of 2014 to discuss the rapidly growing population of elderly and aging people in prison. In attendance at the symposium were researchers, policy advocates, current and former policy makers and administrators, elected and appointed officials, and those who have directly experienced incarceration.

All agreed that while the overall prison population of New York State has declined in the past decade, the number of people aged 50 and older has increased at an alarming rate. The symposium provided the time and space for key stakeholders and actors to think critically about how best to address the phenomenon of New York’s aging prison population without compromising public safety.

A series of papers emerged from the symposium.  Together, they provide a rich overview and analysis of aging people in prison from some of the best thinkers in this field.  While the authors differ in opinion over some issues, they share several key observations and recommendations:

In New York State, the aging prison population continues to rise.  The population of incarcerated people aged 50 and older has increased by 81% since the early 2000’s. Currently, people aged 50 and older comprise more than 17% of the prison population.  The well-documented racial disparities in the criminal justice system are also reflected in the aging prison population — a vastly disproportionate percentage of aging people in prison are Black men and women.

Prisons were not meant to be nursing homes and are poorly equipped to house an aging population.  Basic structural limitations create formidable difficulties for elderly people in prison who often have limited mobility. The lack of medical or correctional staff with specialized knowledge in geriatric care significantly impairs prisons from providing appropriate care to people experiencing chronic medical problems.

Incarcerating the elderly has serious financial implications.  The cost of incarcerating someone aged 50 and older is two to five times the cost of incarcerating someone 49 and younger. An economist who presented at the symposium estimated that the United States spends at least $16 billion annually on incarcerating elderly people.

The explosion in the aging prison population undermines basic fairness, justice, and compassion.

The boom in the aging prison population is largely the result of tough-on-crime sentencing laws and release policies.  Legislators across the political spectrum are rethinking such policies because they have proved ineffective at addressing crime and have a deleterious impact on the wellbeing and safety of poor people and people of color.

Public safety does not require that we keep aging people in prison when they pose no risk to society.  People in prison aged 50 and older are far less likely to return to prison for new crimes than their younger counterparts. For example, only 6.4% of people incarcerated in New York State released age 50 and older returned to prison for new convictions; this number was 4% for people released at the age of 65 and older. Nationally, arrest rates are just over 2% for people aged 50+ and are almost 0% for people aged 65+.

There are several measures New York State should implement to reform parole policy and release aging people from prison.  These measures are consistent with public safety and will result in significant cost savings for New York State. In addition, there are several measures New York State must implement if it is to provide humane care for its aging prison population. Lastly, reentry services specifically tailored to elders released from prison will help ensure the protection of their human rights and dignity, as well as enhancing public safety and preventing any risk of recidivism.

We are pleased to report that the symposium resulted in the creation of a model pilot project for discharge planning and reentry — the report on this pilot is attached to this series of papers as an appendix.  We hope that the knowledge collected in the symposium, the pilot on reentry, and our continued commitment to improving New York State’s justice system serve as resources for you in your efforts to create a safer and healthier New York for all its residents.  The groups and individuals who participated in the symposium and the Aging Reentry Task Force remain ready to provide expertise and resources to help our policy makers in these efforts.

November 17, 2015 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2)

Fitting follow-up to cursory Dem debate comments about criminal justice

As the numerous Prez debates all start to blend into one another, I am no longer making a habit of blogging about questions I would like to see asked or about the occasional tepid comment about criminal justice reform from one candidate or another.  Nevertheless the Democratic debate over the weekend had one of the most extended (and yet still cursory) discussions of criminal justice issues, and these two recent article provide an effective review and commentary of what was said and of what still needs to be discussed a lot more:

From The New Republic here, "The Democrats Have Learned to Say, "Black Lives Matter." Now What?: Why Democrats can't get complacent about police brutality."

From Vox here, "Next time, Democrats should debate these Black Lives Matter and criminal justice questions"

I especially liked these proposed debate questions from the Vox article:

Experts say undoing mass incarceration would likely require imprisoning fewer violent offenders and even releasing some of them.  Is that something you'd be willing to consider?

Has the Obama administration done enough to prevent aggressive prosecutions by US attorneys?  What would you do differently?

More than 86 percent of prisoners are in state facilities.  What can the federal government do to encourage decarceration in the states?

Should drug courts mandate rehabilitation and treatment with the threat of incarceration?

November 17, 2015 in Elections and sentencing issues in political debates, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Sunday, November 15, 2015

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

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

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

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

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

New York Times editorial makes case that California prison releases are working

The New York Times had this notable recent editorial, headlined "California’s Prison Experiment," highlighting why California is the most dynamic state to watch amidst the national debate over sentencing reform and mass incarceration.  Building on two recent reports, the editorial makes the case that California is finding success with decarceration reforms.  Here are excerpts:

Until recently, California locked up more people per capita than any other state. It has been under federal court order since 2009 to bring its severely overcrowded prison system below 137.5 percent of capacity, or about 114,000 inmates.

It met that modest goal in February, thanks in part to a 2014 ballot initiative that reclassified six low­level offenses as misdemeanors instead of felonies. The initiative, Proposition 47, was expected to lead to the release of thousands of inmates, and cut new admissions by about 3,300 per year.  It also required that the cost savings — estimated to be more than $150 million this year — be reinvested into anticrime services like drug rehabilitation,  antitruancy efforts and mental health treatment.  Victims’ services receive funding, too.

Proposition 47 followed two other major reforms: A 2011 law diverted low­level offenders from state prisons into county jails, and a 2012 ballot initiative scaled back a “three strikes” law. The latter led to the release of more than 2,100 people who had been sentenced to life without parole, some for a third strike as minor as shoplifting.

After each reform, law enforcement officials predicted that crime would rise, but it continued to drop around the state. Recidivism rates of those released under the three­-strikes reform are far below the state average.

Now, two new reports, by the American Civil Liberties Union and the Stanford Justice Advocacy Project, look at the effect of Proposition 47.  The most easily measurable impact is on the state’s prison and county jail population, which has fallen by about 13,000, with more than 4,400 prison inmates released by the end of September.  But the law remains controversial.  Some in law enforcement argue that they can’t arrest people for small crimes anymore, and point to crime upticks in some counties.

In fact, crime rates vary widely throughout the state. In Los Angeles County, property crime is up 8 percent, while the rate for all crime remains at record lows in San Diego County.  One sign that Proposition 47 is working is the recidivism rate. It is less than 5 percent for people released under the law; the state average is 42 percent....

It may be too soon to understand the full impact of Proposition 47, but the damage done by the indiscriminate and lengthy lockup of low­level offenders is all too clear. California’s voters, who have in the past given in to their most punitive impulses, have now opened the door to a more intelligent and humane justice system.

A few (of many) prior related posts on Prop 47 and its impact:

November 15, 2015 in Data on sentencing, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (2)

Thursday, November 12, 2015

Notable new ACLU report on impact of California's Prop 47 one year later

ACLUcaCoverIn this prior post last week, I reported on this Stanford Justice Advocacy Project report providing one perspective on the impact and import of California voters' embrace of criminal justice reform last year through Proposition 47.  I have just seen that the ALCU of California has this week released its own report on this important topic.  This report, titled "Changing Gears: California’s Shift to Smart Justice," covers lots of ground about local implementation of Prop 47.  Here are excerpts from its six main findings (which has its numbering a bit off):

For this survey, the ACLU obtained and reviewed public records from sheriffs, probation chiefs, district attorneys, and behavioral health departments from around the state. The findings below are offered as a starting point for policymakers and advocates working to better understand the choices local agencies are making in responding to Prop 47 and the voter mandate behind it – and begin to evaluate whether those choices are appropriate.

1. Thousands are waiting for their Prop 47 resentencing/ reclassification petitions to be reviewed. Under Prop 47, people who may be eligible to change the felony on their record to a misdemeanor have a limited time to ask the court to make the change. The November 2017 deadline to apply is now just two years away.  As of June 2015, courts statewide had reported a total of about 160,000 applications for Prop 47 relief – both for resentencing and reclassification.29 Responding to public records requests by the ACLU, many counties were unable to provide accurate data on how many people may still be incarcerated or under supervision awaiting resentencing.  Although most counties acted quickly to establish a process for resentencing eligible incarcerated people, it is less clear how many people eligible for Prop 47 resentencing are still serving felony sentences under community supervision.  According to Californians for Safety and Justice, there may be up to one million Californians who have an old felony on their record that may be eligible for reclassification....

2. Jail populations fell after Prop 47, but they are rising again. Due to overcrowding, jail populations in California are largely determined by jail administrators’ decisions about how to manage jail capacity.  They determine who will be booked into jail and who will be released, how and under what conditions.  Following enactment of Prop 47, jail populations statewide dropped by almost 11% from October 2014 to March 2015.  During the same period, the number of people who were released early due to jail overcrowding dropped by one-third. However, jail populations soon began to increase again as administrators adjusted detention policies and practices....

3. Some in law enforcement have prioritized low-level arrests while others de-prioritized them. The ACLU obtained several county sheriff departments’ arrest numbers for low-level drug and property offenses for each month in 2014 through mid-2015. (Sheriff’s departments represent a small sample of the hundreds of law enforcement agencies in the state.)  Changes in arrests in the fi rst six months of 2014 compared to the fi rst six months of 2015 demonstrate that local agencies are applying their discretion to arrest for Prop 47 offenses very differently....

4. Some county jails are making room for people charged with low-level offenses. The facts belie the claim by some in law enforcement that people facing misdemeanor charges cannot be jailed. In 2015, people facing misdemeanor charges are taking up a growing number of jail beds....

4. A majority of counties already require supervision for some people convicted of a low-level offense. In response to ACLU inquiries, 38 county probation departments reported supervising some people for misdemeanor convictions. Other counties put misdemeanants on court probation (which does not involve active monitoring). Following Prop 47, some counties reported putting people who have been resentenced from a felony to a misdemeanor under the supervision of the probation department. Other counties have chosen not to provide formal supervision....

5. Agencies have been focused on individual agency roles, rather than collaborative planning. In records provided to the ACLU, communication among criminal justice agencies at the county level have focused on the individual roles of each agency rather than on how best to maintain the county’s overall public safety goals. Few counties appear to have made the space to discuss how various agencies and the county as a whole should adjust policies and practices to ensure that counties adhere both to the legal requirements and the voter intent behind Prop 47.

A few (of many) prior related posts on Prop 47 and its impact:

November 12, 2015 in Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

"How Parental Incarceration Affects a Child’s Education"

The title of this post is the headline of this notable new Atlantic article, which summarizes some of the findings from this research report titled "Parents Behind Bars: What Happens to Their Children?" authored by David Murphey and P. Mae Cooper.  Here are excerpts from the Atlantic article:

Research has long found that children who have (or have had) a parent behind bars tend to suffer from problems including poor health, behavior challenges, and grade retention, but it’s been difficult to suss out the degree to which those issues are attributable more generally to other realities common in communities with high incarceration rates. “It can be challenging to disentangle the effects of parental incarceration from … other risk factors, such as extreme poverty,” Murphey and Cooper write. “Complicating matters further, parental incarceration can also exacerbate these associated risk factors, through loss of income, for example.”...

The researchers also found that a child who’s had a parent in prison is more likely than one who hasn’t to experience additional “adverse childhood experiences,” or ACEs—long-term, “toxic” circumstances such as witnessing domestic or community violence, suffering from extreme poverty, or living with someone who’s mentally ill. Research has shown that ACEs, especially when they’re cumulative, often cause childhood trauma, which can ultimately result in poor immunity and mental-health problems in adulthood and even early mortality. As James Perrin, the president of the American Academy of Pediatrics, told The Atlantic’s Olga Khazan last year, “If you have a whole bunch of bad experiences growing up, you set up your brain in such a way that it’s your expectation that that’s what life is about.”

Parental incarceration often acts as one such ACE because it causes a confusing, troubling loss of an attachment figure and involves ongoing contact with law enforcement, the corrections system, and child-welfare officials. But what Murphey and Cooper find is that having a parent in prison is likely to coincide with even more traumatic experiences: Children who’ve undergone parental incarceration suffer from 2.7 ACEs on average, according to their analysis of of the National Survey of Children’s Health, which lists 8 ACEs total. Children who haven’t experienced parental incarceration suffered from 0.7 ACEs on average.

Ultimately, the researchers conclude that “the harm associated with parental incarceration can compound the already difficult circumstances of vulnerable children,” a reality that’s particularly evident in their schooling. Yet, as the University of Minnesota paper shows, education policy has done little to address these kids’ particular needs. And in this age of mass incarceration, perhaps it should. In his recent cover story for The Atlantic about the topic, Ta-Nehisi Coates described mass incarceration as a vicious cycle that victimizes entire families, holding them “in a kind of orbit, on the outskirts, by the relentless gravity of the carceral state.” “Through it all,” Coates wrote, “children suffer.”

November 12, 2015 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2)

Wednesday, November 11, 2015

How many vets, after serving to secure liberty, are now serving LWOP sentences?

The question in the title of this post, in addition to raising an important empirical question on a day devoted to honoring our veterans, seeks to highlight my view that even more disconcerting than the number of veterans who many be on death row (as dicusses in this new DPIC report) is the surely much larger number of vets who are serving a sentence ensuring they will never experience true freedom again after they served to protect that very freedom.

The DPIC report indicates that around 300 veterans may be on death row, which would make vets a little less than 10% of the condemned population.  Using that rough percentage and knowing that at least 100,000 persons (and likely many more) are serving LWOP sentences in the United States, it think it would be reasonable to guess that as many as 10,000 veterans might be serving the ultimate American liberty-depriving sentence after having devoted part of their life to protecting American liberties.

November 11, 2015 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (10)

"What Mass Incarceration Looks Like for Juveniles"

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

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

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

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

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

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

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

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

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

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

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

Saturday, November 07, 2015

Thanks to retroactive drug guidelines, federal prison population under 200,000 for first time in nearly a decade

I was pleased to discover from this webpage providing a weekly updating of the official federal prisoner headcount that, for the first time in nearly a decade, the federal prison population is now officially under 200,000.  I believe that the official count last week was around 205,000, and thus it would seem that this milestone was achieved officially as a result of the implementation of the first set of drug-2 retroactivity early prisoner releases.

I have heard talk in various settings of an interest in having the federal prison population down eventually to 150,000 (which, I believe, would still have the facitlities officially a bot above their standard capacity).  I think the passage and effective implementation of the bipartisan federal sentencing reform bills now in Congress would likely go a long way to getting to that goal in a responsible way.     

November 7, 2015 in Drug Offense Sentencing, Federal Sentencing Guidelines, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (2)

Friday, November 06, 2015

"How Federal Judges Contribute to Mass Incarceration and What They Can Do About It"

The title of this post is the title of this notable new article by US District Judge Lynn Adelman and his clerk Jon Deitrich now available via SSRN. Here is the abstract:

Talk of reforming federal sentencing law by eliminating some mandatory minimum sentences is much in the air. The fact is, however, that many federal offenders are unnecessarily imprisoned in cases where there is no mandatory minimum.

This article attempts to expand the conversation about excessive imprisonment by discussing first how the federal sentencing guidelines place far too much emphasis on prison and far too little on sentences served in the community. Next, we discuss federal judges' excessive attachment to the guidelines despite their deep flaws and even after the Supreme Court has made clear that judges are free to reject them. Finally, we propose an approach to federal sentencing that is much less deferential to the guidelines and places much more emphasis on 18 U.S. § 3553(a), the parsimony statute, which requires judges to impose the least punitive sentence necessary to achieve the goals of sentencing.

November 6, 2015 in Booker in district courts, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6)

Thursday, November 05, 2015

"Proposition 47 Progress Report: Year One Implementation"

The title of this post is the title of this recently-released report from the Stanford Justice Advocacy Project, which "was involved in the drafting of Proposition 47 and currently assists its implementation, including litigation on behalf of individual prisoners seeking reduced sentences under the new law."  Perhaps unsurprisingly, this report tells a much more positive story about the impact of Proposition 47 than has been reported by law enforcement officials and various others.  Here are the short report's "Key Findings" (without the many footnotes):

Since the enactment of Proposition 47 on November 14, 2014, the number of people incarcerated in California’s prisons and jails has decreased by approximately 13,000 inmates, helping alleviate crowding conditions in those institutions. Proposition 47 has also reduced the number of jail inmates released from custody early due to overcrowding and should generate over $150 million in state savings this fiscal year. County governments stand to save even more money: over $200 million annually, in aggregate.

According to the Legislative Analyst’s Office, prior to Proposition 47 approximately 40,000 people per year received felony sentences for the drug and property crimes targeted by the initiative.  Those offenses are now punished as misdemeanors, significantly reducing sentence lengths and costs for incarceration, litigation and law enforcement.

According to the Department of Corrections, 4,454 state prisoners have been released under Proposition 47 as of September 30, 2015.  In addition, the state will incarcerate an estimated 3,300 fewer prisoners every year because these offenders will receive misdemeanor jail sentences under Proposition 47 rather than new prison terms. In February, the prison population dropped below the capacity level ordered by the U.S. Supreme Court in Plata v. Brown, one year ahead of schedule.

According to the Board of State Community Corrections, the total statewide jail population has dropped by almost 9,000 inmates since the enactment of Proposition 47.9 Early releases from county jails due to overcrowding are down approximately 35 percent statewide.

Financial savings to the state from reduced prison costs under Proposition 47 is estimated at over $156 million this fiscal year.  Long term annual savings are estimated at $93.4 million.  These savings will be directed to the Safe Neighborhoods and Schools Fund to support mental health and drug treatment, K-12 public schools, and services for crime victims.  In May, the Governor cut over $70 million dollars from the state prison budget because of population reductions from Proposition 47.

Fewer than five percent of state prisoners released early under Proposition 47 have been convicted of a new crime and returned to prison.  Although law enforcement officials in some jurisdictions have recently complained about increasing crime rates, there is no evidence that state prisoners released early under Proposition 47 are committing those crimes. Statewide data on crime rates is not currently available, making it impossible to measure any impact on crimes rates by Proposition 47.

November 5, 2015 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines | Permalink | Comments (1)