Thursday, February 23, 2017
AG Sessions, reversing recent decision made during Obama Administration, signals DOJ return to reliance on private prisons
As reported in this Bloomberg News piece, "U.S. Attorney General Jeff Sessions ordered the Federal Bureau of Prisons to continue using private prisons, rescinding an order by former President Barack Obama’s administration." Here is more context:
Sessions signed the order on Feb. 21, according to a Justice Department statement. The Justice Department last year halted a decade-long experiment of hiring private companies to help manage the soaring prison population. "The memorandum changed long-standing policy and practice, and impaired the Bureau’s ability to meet the future needs of the federal correctional system," Sessions wrote in a new memo released Thursday but dated Feb. 21. "I direct the Bureau to return to its previous approach."
The move comes as President Donald Trump’s administration has pledged to crack down on illegal immigration and crime. The majority of inmates held at private facilities used by the Justice Department are sentenced “criminal aliens,” according to the Bureau of Prisons. That largely encompasses undocumented immigrants convicted of drug offenses or entering the U.S. without proper documentation.
For a variety of reasons, I do not find this development all that surprising or really all that big of a deal. But I know a lot of reform advocates on the left are especially troubled by the private prison industry, and thus I suspect this move will be another talking point for those concerned about the direction of the federal criminal justice system under the new Administration.
Wednesday, February 22, 2017
"The Constitutional Law of Incarceration, Reconfigured"
The title of this post is the title of this notable new paper authored by Margo Schlanger now available via SSRN. Here is the abstract:
As American incarcerated populations grew starting in the 1970s, so too did court oversight of prisons. In the late 1980s, however, as incarceration continued to boom, federal court oversight shrank. This Article addresses the most central doctrinal limit on oversight of jails and prisons, the Supreme Court’s restrictive reading of the constitutional provisions governing treatment of prisoners — the Cruel and Unusual Punishments Clause and the Due Process Clause, which regulate, respectively, post-conviction imprisonment and pretrial detention. The Court’s interpretation of the Eighth Amendment’s ban of cruel and unusual punishment, in particular, radically undermined prison officials’ accountability for tragedies behind bars — allowing, even encouraging, them to avoid constitutional accountability. And lower courts compounded the error by importing that reading into Due Process doctrine as well.
In 2015, in Kingsley v. Hendrickson, a jail use of force case, the Court relied on 1970s precedent, not subsequent caselaw that had placed undue emphasis on the subjective culpability of prison and jail officials as the crucial source of constitutional concern. The Kingsley Court returned to a more appropriate objective analysis. In finding for the plaintiff, the Supreme Court unsettled the law far past Kingsley’s direct factual setting of pretrial detention, expressly inviting post-conviction challenges to restrictive — and incoherent — Eighth Amendment caselaw. The Court rejected not only the defendants’ position, but the logic that underlies 25 years of pro-government outcomes in prisoners’ rights cases.
But commentary and developing caselaw since Kingsley has not fully recognized its implications. I argue that both doctrinal logic and justice dictate that constitutional litigation should center on the experience of incarcerated prisoners, rather than the culpability of their keepers. The takeaway of my analysis is that the Constitution is best read to impose governmental liability for harm caused to prisoners — whether pretrial or post-conviction — by unreasonably dangerous conditions of confinement and unjustified uses of force. In this era of mass incarceration, our jails and prisons should not be shielded from accountability by legal standards that lack both doctrinal and normative warrant.
Thursday, February 16, 2017
"Accounting for Violence: How to Increase Safety and Break Our Failed Reliance on Mass Incarceration"
The title of this post is the title of this notable new report from the Vera Institute of Justice authored by Danielle Sered. Here is an overview of the report from Vera:
In the United States, violence and mass incarceration are deeply entwined, though evidence shows that both can decrease at the same time. A new vision is needed to meaningfully address violence and reduce the use of incarceration — and to promote healing among crime survivors and improve public safety. This report describes four principles to guide policies and practices that aim to reduce violence: They should be survivor-centered, based on accountability, safety-driven, and racially equitable.
This two-page fact sheet sets out the "four principles" referenced above:
Principle 1: Responses to violence should be survivor-centered.
Principle 2: Responses to violence should be based on accountability.
Principle 3: Responses to violence should be safety‑driven.
Principle 4: Responses to violence should be racially equitable.
Tuesday, February 14, 2017
Noting central place of Texas in (incomplete) consensus disfavoring increased use of incarceration
Today's New York Times has this extended commentary about incarceration authored by Tina Rosenberg running under the headline "Even in Texas, Mass Imprisonment Is Going Out of Style." Here are excerpts:
It promises to be a bleak four years for liberals, who will spend it trying — and, most likely, failing — to defend health care, women’s rights, climate change action and other good things. But on one serious problem, continued progress is not only possible, it’s probable. That is reducing incarceration. In an era of what seems like unprecedented polarization and rancor, this idea has bipartisan support. The Koch brothers and Black Lives Matter agree. The American Civil Liberties Union and the American Conservative Union Foundation agree. Bernie Sanders and Newt Gingrich agree.
Here’s what they agree on:
• The United States went overboard on mass incarceration in the 1980s and 1990s.
• This has ruined a lot of lives — of those incarcerated, yes, but also others among their families and communities.
• The evidence says that harsher sentences don’t prevent crime and may even lead to more crime.
• Jailing people is really, really expensive.
• Prison brings no help and much harm to the 80 percent of prisoners who are addicted to drugs or mentally ill.
• There are alternatives to imprisonment that keep Americans safe.
(There are also crime and justice issues that these liberals and conservatives do not agree on, such as the death penalty, the merits of private prisons and, of course, guns.)
Even all this agreement is no guarantee of progress in Washington. President Trump’s policies on crime are whatever slogans get the crowd roaring. Attorney General Jeff Sessions has a D-plus record on this issue as a senator. He supported reducing the disparity in sentencing for cocaine and crack possession. He did vote for the Prison Rape Elimination Act — kudos for that, I suppose. But last year, Mr. Sessions, along with a few other Republican senators, blocked the major bill on this issue, the Sentencing Reform and Corrections Act, from coming to a vote. So the administration can be expected to be unhelpful, with Congress a question mark.
While Washington’s actions are important, however, federal prisons hold only one in eight imprisoned Americans. So mass incarceration is really a state issue. And in the states, momentum is heartening. After quintupling between 1974 and 2007, the imprisonment rate is now dropping in a majority of states. Overall, it fell by 8.4 percent from 2010 to 2015, while crime dropped by 14.6 percent, according to research by the Pew Charitable Trusts.
California slashed its incarceration rate by 27 percent between 2006 and 2014 after a court order. New York cut its rate by 18 percent, largely because of reform of the Rockefeller drug laws that mandated long sentences for possession. New Jersey’s rate dropped by 24 percent.
More remarkable — and probably more persuasive to other states and to Congress now — is the shift in red states, where incarceration rates have been the highest. In the last decade, they have dropped substantially in South Carolina, Mississippi, Georgia and, notably, in lock-’em-up Texas....
The cost of prisons was a huge issue. In 2007, the Texas Legislative Budget Board projected that the state would need more than 17,000 new prison beds over five years, a building project that would cost $530 million, never mind the operating costs. That pushed the ultraconservative House speaker, Tom Craddick, to a breaking point. Jerry Madden, the Republican chairman of the House Corrections Committee, said in an interview that Craddick took him aside. “Don’t build new prisons,” Craddick told him. “They cost too much.”
Madden was an engineer and took that approach, asking: What is proven to work to keep people out of prison? How much of that do we need to buy in order to not build more of them? For ideas, he and his staff talked to research and advocacy groups, including the liberal coalition and the conservative Texas Public Policy Foundation, which gave birth to and houses Right on Crime.
That there was a conservative research group to consult was in itself remarkable. “No one in conservative think tanks worked on criminal justice, other than to advocate for more prisons and more incarceration,” said the foundation’s director, Brooke Rollins, who had been Gov. Rick Perry’s policy director. But in 2004, Rollins got a call from Tim Dunn, an oilman who helps fund the foundation and serves on its board. Dunn has put millions of his own money into pushing the Texas legislature further to the right. Texas Monthly called him “probably the most influential person many Texans have never heard of.”
“Conservatives are wrong on crime,” he told a startled Rollins. “Scripture would not call us to build prisons and forget people.” Dunn believes that crime victims want restitution and repentance, while the prison system merely incapacitates. On his personal website, he wrote that “nonviolent crimes should be recompensed in a way that gets people back into the work force and adding to communities as quickly as possible,” and that Texas should “focus on restoring victims and communities damaged by crime.”
At Dunn’s urging, Rollins hired Levin part time to work on a conservative approach to criminal justice reform. “We found the conservative and liberal think tanks agreed on 70, 80 percent of the stuff,” said Madden. And it’s those areas of agreement that were put in the bill. The reforms passed nearly unanimously — and although Perry had previously vetoed narrower reforms, this time he signed them. (He now endorses the Right on Crime agenda.) Reforms continue today: 16 bills passed in the last legislative session, including one allowing people to erase their criminal records in some circumstances....
The state now has drug courts, veterans’ courts and mental health courts. “They are there to provide help, but at the same time, structure,” said Madden, who is retired from the legislature. “You have a problem and we’re going to help you with your problem.” Many inmates were in prison for technical violations of their probation or parole. Now those violations often bring rapid sanctions and supervision instead of a return to prison.
The rate of incarceration in Texas state prisons fell by 17 percent from 2007 to 2015, according to the coalition, and the juvenile incarceration rate fell by nearly three-quarters. Recidivism is dropping steadily. At the same time, the crime rate has dropped by 27 percent.
Texas still has much to do. It ranks sixth or seventh in the nation in imprisonment rates. Some 8,900 people are in the state jail system for crimes that are neither violent nor sexual. Many are there for drug charges, but they often can’t get treatment in jail. Thousands of people are sent back to prison each year for technical revocation of parole or probation. As for juveniles, 22,000 are in the adult system, where they are at high risk of sexual assault and suicide....
The fall in crime rates — itself a reason incarceration has dropped — has made reform politically possible. Conservative leadership in states like Texas gives everybody cover. And Americans support criminal justice reform by large majorities. One telling example: in his re-election campaign in 2014, Gov. Nathan Deal of Georgia, a Republican, highlighted his reforms that lowered the rate of incarceration among African-Americans by 20 percent. Twenty years ago, a Republican in Georgia would have boasted about the opposite.
If crime rates begin rising again, could hard-line thinking once more prevail? Yañez-Correa doesn’t think so. “Many legislators want to work on these issues jointly because other issues are so polarized,” she said. “People on both sides are genuinely interested and devoted.”
This story is important and encouraging, but it fails I think it connect fully with the import and impact of Prez Trump campaigning on a "law and order" platform and his eagerness to make much of the uptick in murder and other violent crimes in some big cities in recent years. The folks over at Crime & Consequences and many others are quick and keen to link any and every increase in crime to recent decreased use of incarceration, and that perspective is certainly some element of how Prez Trump and AG Sessions think about crime and punishment issues.
I remain hopeful that, especially at the state level, there is continued interest in, and bipartisan support for, an array of "smart on crime" alternatives to incarceration for a range of less serious and less dangerous offenders. But I do not think that Prez Trump and AG Sessions, arguably the two most important criminal justice policy-makers for the next few years, subscribe to all or even most of what is listed above in the commentary as points of agreement. And that is a very big deal that must always be front and center as one considers the future of criminal justice reform at both the federal and state level.
February 14, 2017 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (7)
Wednesday, February 08, 2017
New report details stability of California crime rates during period of huge sentencing reform
This new Fact Sheet produced by the Center on Juvenile and Criminal Justice tells and interesting and important story about crime in California. The main prose of the report provides the data highlights:
Newly released Federal Bureau of Investigation (FBI) statistics for the first six months of 2016 show California’s reported urban crime rate remained stable from 2010 through 2016, despite the implementation of large-scale criminal justice reforms during that period.
• Total urban crime fell in the first half of 2016 compared to the first half of 2015.
The first six months of 2016 saw a decline in California’s urban crime rate compared to the first six months of 2015, though trends in specific crime categories were wide-ranging. During this period, reported crime declined 3 percent overall, driven by a 4 percent reduction in property offenses. Burglary, arson, and theft decreased, while vehicle theft increased, resulting in approximately 7,400 fewer property offenses in early 2016. At the same time, violent crime rose 4 percent, with total violent offenses increasing by approximately 2,800 from early 2015 to early 2016.1
• The statewide urban crime rate stabilized from 2010 to 2016, after decades of decline.
Urban crime rates in California declined precipitously through the 1990s and 2000s (See Appendix A). Since 2010, crime in California has stabilized, hovering near historically low levels. Comparing the first six months of 2016 to the first six months of 2010, total crime rates experienced no net change, while property crime declined by 1 percent and violent crime increased by 3 percent (see Table 1).
• Historically low urban crime rates have persisted through an era of justice reform.
Crime rates have remained low and stable through several major criminal justice reforms, particularly Public Safety Realignment and Proposition 47. Realignment, which was enacted in 2011 through Assembly Bill 109, shifted responsibility for those with nonviolent, non-sexual, and non-serious convictions from the state to the county in an attempt to reduce prison populations. In 2014, California voters passed Prop 47, which reduced six minor drug and property felonies to misdemeanors, prompting the resentencing and release of thousands from jails and prisons across the state. Though each policy was met with some initial concerns over public safety, a seven-year view of the data suggests that no visible change in crime resulted from Realignment (CJCJ, 2015). More data are needed before drawing conclusions about Prop 47’s effect on crime (CJCJ, 2016).
Monday, February 06, 2017
"Why we should free violent criminals"
The title of this post is the headline of this Boston Globe commentary authored by By David Scharfenberg. Here are excerpts:
The drug war, [some experts] say, is not the major force behind America’s huge prison growth over the last several decades. In fact, less than 20 percent of the country’s 1.5 million prisoners are serving time for such offenses. Free them all tomorrow, and the United States would still have the largest prison population in the world — larger than Russia, Mexico, and Iran combined.
Violent crime is a much more important driver, with almost half of prisoners doing time for offenses like murder and robbery. To make a real dent in mass incarceration, experts say, the country will have to do the difficult work of freeing more of these criminals sooner. “We put all of our attention — almost all of our attention — on things that aren’t nearly as important as the things we ignore,” says Fordham Law School professor John Pfaff, author of the forthcoming book “Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform.”
Pfaff says the criminal justice reform movement had to start with talk of greater leniency for nonviolent offenders. It couldn’t leap right to a discussion of, say, cutting murderers’ sentences down to a European-style 10 years. But now, he says, it’s time for something more. Not all “violent crime” is as serious as the phrase would imply. In some states, burglarizing a house when no one is home is considered a violent offense. And what about the 18-year-old robber who was carrying a gun but didn’t actually use it?
As for long sentences, it’s true that they play a role in driving prison growth. “Three strikes” laws, mandatory minimums, and other tough-on-crime measures have increased time served for all kinds of offenders — pot dealers and violent criminals alike. A Pew analysis of state prison data showed that prisoners released in 2009 served 36 percent longer than those who were released in 1990.
But at three years, the average prison term is shorter than the conventional wisdom would suggest. Pfaff argues that the real concern is not sentence length, but serving any time in prison at all. Whether you serve 12 or 16 months, he says, the impact is the same. Upon release, convicted felons have a hard time getting decent jobs or good housing. And with the odds heavily stacked against them, they’re more likely to reoffend.
The criminal justice reform movement, Pfaff argues, needs a reorientation — and a willingness to show mercy for prisoners beyond the proverbial nonviolent drug offender. That means diverting more people — whatever their offenses — away from the system, thereby sparing them from a criminal record. And there’s only one way to do that, he says: Change the behavior of the most powerful actor in the criminal justice system, the prosecutor....
Over the last couple of decades, Pfaff’s research shows, they’ve become ever-more aggressive about seeking jail time. In the mid-’90s, prosecutors filed felony charges against about one in three arrestees. By 2008, it was more like two in three. Why are prosecutors getting more aggressive? Maybe because they’re more politically ambitious, Pfaff theorizes. They may think a tough-on-crime record can be parlayed into a run for higher office. Or maybe the police are developing stronger cases, using more surveillance-camera footage, for example.
Whatever the cause, the impact has been enormous. The push to file more felony charges, Pfaff writes in his forthcoming book, is the single most important factor in the growth in prison admissions since crime started dropping in the early-’90s. One solution: legislate a reduction in prosecutorial power. Pfaff suggests creating detailed charging guidelines that would force prosecutors to steer more offenders away from the prison system.
Getting that sort of thing on the books will be difficult though; prosecutors have substantial clout in state legislatures and don’t want to see their power diminished . Which is why advocates may have better luck urging district and state attorneys’ offices to change from within and produce more flexible prosecutors.
Setting my DVR for "Solitary: Inside Red Onion State Prison"
HBO is premiering a notable new documentary tonight, "Solitary: Inside Red Onion State Prison." Here is how HBO describes the movie:
Located on an Appalachian mountaintop in Wise County, Va., Red Onion State Prison is a “supermax” facility built to house individual inmates in 8’x10’ solitary-confinement cells, 23 hours a day, for months, years and sometimes decades. Directed by Kristi Jacobson, Solitary: Inside Red Onion State Prison explores life on both sides of the bars, raising provocative questions about punishment in America today.
Drawing on unprecedented, unrestricted access, Solitary: Inside Red Onion State Prison was filmed over the course of one year, chronicling a new reform program intended to reduce the number of solitary-confinement inmates. The recently initiated “Step-Down Program” has allowed more than 350 inmates a chance to return to the general population. But all too often, after months of solitary isolation, prisoners are ill-equipped to deal with the stresses of being a part of the regular prison population – let alone life on the outside.
This unflinching, immersive documentary features intimate interviews with several inmates who reflect on their violent childhoods, open up about the dangers of prison life and articulate their struggles to maintain sanity in the unrelenting monotony and isolation of confinement. Interwoven with these stories are observations of corrections officers, who describe the toll their stressful jobs can take in a community with few employment opportunities.
Solitary: Inside Red Onion State Prison captures the chilling sounds and haunting atmosphere of daily life at Red Onion, focusing on the effect of loneliness and isolation on the prisoners’ mental health.
The filmmaker website has this little blurb to describe the movie:
SOLITARY is a daring exploration of the lives of inmates and corrections officers in one of America's most notorious supermax prisons, built to hold inmates in 8x10 cells, 23-hours-a-day, for months, years and sometimes decades. With unprecedented access, the film captures a complex, unexpected and deeply moving portrait of life inside.
Friday, February 03, 2017
Oklahoma Governor's task force urging significant sentencing reform to deal with surging prison population
As reported in this lengthy local article, "faced with a rapidly growing prison population in a state with the second-highest incarceration rate in the nation, a task force created by Oklahoma Gov. Mary Fallin issued a report Thursday calling for dramatic decreases in sentences for nonviolent drug dealers and manufacturers." Here is more:
Without reform, Oklahoma is on pace to add 7,218 inmates over the next 10 years, requiring three new prisons and costing the state an additional $1.9 billion in capital expenditures and operating costs, the report said. But task members said those costs can be averted and the prison population can be reduced 7 percent over the next decade through a combination of sentence reductions and other reforms, including increased funding for alternative mental health and substance abuse treatment programs.
Oklahoma currently has 61,385 individuals in its overcrowded prison system. That includes 26,581 incarcerated in state facilities and private prisons, 1,643 awaiting transfer from county jails and 33,161 on some form of probation, parole, community sentencing or GPS monitoring, said Terri Watkins, spokeswoman for the Department of Corrections.
Oklahoma's prison population, which is at 109 percent of capacity, has grown 9 percent in the past five years and is now 78 percent higher than the national average. Only Louisiana has a higher rate, the report said.
Oklahoma's female incarceration rate remains the highest in the nation, a distinction the state has held for 25 years, task members said. The state's female population grew 30 percent between 2011 and 2016 and Oklahoma now incarcerates women at a rate more than 2 1/2 times the national average.
In a 38-page report that contains 27 recommendations, the governor's task force on justice reform recommends a number of dramatic changes to stave off a looming state financial crisis, including sharply reducing sentences for nonviolent drug dealers and manufacturers. The report also calls for sweeping changes in the parole system, including allowing many inmates to become eligible for parole after serving a fourth of their sentences. Currently, inmates typically serve about a third of their sentences before becoming eligible for parole for most nonviolent crimes.
Many of the task force's recommendations would require legislative action. The task force is recommending that the penalty for possession of methamphetamine, heroin or crack cocaine with intent to distribute be lowered to zero to five years for nonviolent first-time felony drug offenders, said Jennifer Chance, the governor's general counsel and a member of the task force. It is recommending that the penalty for manufacturing be lowered to zero to eight years.
Possession of methamphetamine with intent to distribute currently carries a sentence of two years to life in prison for a first-time felony drug conviction, while possession of crack cocaine with intent to distribute carries a term of five years to life and heroin seven years to life.
Oklahoma's criminal justice system has exacerbated the state's prison crowding crisis by repeatedly sentencing more nonviolent offenders — particularly drug offenders — to longer terms than neighboring states like Texas and Missouri, the report says. Many states have been far ahead of Oklahoma in reforming their justice systems, the task force found. "Since 2010, 31 states across the country have decreased imprisonment rates while reducing crime rates," the report states.
Reducing Oklahoma prison sentences for nonviolent drug crimes is critical to reversing those trends because nearly a third of all Oklahoma prison admissions are for drug crimes and those prison sentences are often lengthy, the task force said.
Chance said most of the 21 task force members were in agreement with the group's findings, but acknowledged that the two district attorneys on the panel, David Prater and Mike Fields, have strong disagreements with some of the report's recommendations. Prater is the chief prosecutor for Oklahoma County, while Fields is the chief prosecutor for Canadian, Garfield, Blaine, Grant and Kingfisher counties and president of the Oklahoma District Attorneys Association....
If the state cuts prison sentences for drug manufacturing, distributing and trafficking without dramatically increasing funding for drug addiction treatment programs, Prater predicted it will lead to more home and auto break-ins and other crimes. "This is such a dishonest report," Prater said. "It's going to make Oklahoma a much more dangerous place."
Prater said the report's backers like to point to Texas as a state that has simultaneously reduced its incarceration and crime rates through similar justice reforms, but he noted that Texas appropriated $241 million up front in 2007 to pay for a package of prison alternatives that included more intermediate sanctions and substance abuse treatment beds, drug courts and mental illness treatment slots. Unless Oklahoma dramatically increases upfront funding for substance abuse treatment and parole supervision programs, the state's experience is more likely to parallel that of Utah, Prater said.
That state drastically cut sentences without providing sufficient funding for community programs and police officers and judges there have complained about offenders repeatedly being released out on the street with little or no supervision, he said. Critics of Utah's reform efforts have cited the January 2016 slaying of Unified police officer Doug Barney as a reason for re-evaluating changes that were made. Barney's shooter, Corey Henderson, went through the revolving door of prison and many have argued he shouldn't have been out of jail when Barney was killed....
The Oklahoma Attorney General's Office was noncommittal about the report. “The Attorney General's Office was invited to take part in the Oklahoma Justice Reform Task Force, and members of our team were in attendance," Lincoln Ferguson, spokesman for Atty. Gen. Scott Pruitt, said in a prepared statement. "The AG's office takes no position on the merits or demerits of the proposal.”
The full report is an interesting read and is available here at this link.
Wednesday, February 01, 2017
"Constitutional Liberty and the Progression of Punishment"
The title of this post is the title of this notable new article authored by Robert J. Smith and Zoe Robinson. Here is the abstract:
The Eighth Amendment’s prohibition on cruel and unusual punishment has long been interpreted by scholars and judges to provide very limited protections for criminal defendants. This understanding of the Eighth Amendment claims that the prohibition is operationalized mostly to prevent torturous methods of punishment or halt the isolated use of a punishment practice that has fallen into long-term disuse.
This Article challenges these assumptions. It argues that while this limited view of the Eighth Amendment may be accurate as a historical matter, over the past two decades, the Supreme Court has incrementally broadened the scope of the cruel and unusual punishment clause. The Court’s contemporary Eighth Amendment jurisprudence — with its focus on categorical exemptions and increasingly nuanced measures of determining constitutionally excessive punishments — reflects an overt recognition that the fundamental purpose of the Eighth Amendment is to protect vulnerable citizens uniquely subject to majoritarian retributive excess.
Animating these developments is a conception of constitutional liberty that transcends the prohibition on cruel and unusual punishment. Indeed, 2015’s same-sex marriage decision, Obergefell v. Hodges, reflects a similar trajectory in the Court’s substantive due process jurisprudence. Taken together, these doctrinal developments illustrate a concerted move to insert the Court as the independent arbiter of legislative excesses that undermine the basic right to human dignity by virtue of unnecessarily impinging upon individual liberty. Ultimately, these liberty-driven developments signal new possibilities for the protection of defendant rights in a variety of contemporary contexts, including juvenile life without parole for homicide offenses, life without parole for non-violent drug offenses, the death penalty, certain mandatory minimum sentences, and the prolonged use of solitary confinement.
Tuesday, January 31, 2017
"Delaying a Second Chance: The Declining Prospects for Parole on Life Sentences"
The title of this post is the title of this notable new report released today by The Sentencing Project. Here is the first part of the report's Executive Summary:
Amid growing public support for criminal justice reform, policymakers and criminal justice practitioners have begun to scale back prison sentences for low-level, nonviolent crimes. Although the results have been modest — a 5% reduction in the overall U.S. prison population between 2009 and 2015 — this shift follows almost four decades of prison expansion. But so far, criminal justice reform has largely excluded people in prison with life sentences. This growing “lifer” population both illustrates and contributes to the persistence of mass incarceration.
Most people serving life sentences were convicted of serious crimes. Their incarceration was intended to protect society and to provide appropriate punishment. But many were sentenced at a time when “life with the possibility of parole” meant a significantly shorter sentence than it has become today. Many remain incarcerated even though they no longer pose a public safety risk.
Researchers have shown that continuing to incarcerate those who have “aged out” of their crime-prone years is ineffective in promoting public safety. Long sentences are also limited in deterring future crimes given that most people do not expect to be apprehended for a crime, are not familiar with relevant legal penalties, or criminally offend with their judgment compromised by substance abuse or mental health problems. Unnecessarily long prison terms are also costly and impede public investments in effective crime prevention, drug treatment, and other rehabilitative programs that produce healthier and safer communities.
Despite this body of criminological evidence, the number of people serving life sentences has more than quadrupled since 1984 — a faster rate of growth than the overall prison population. Even between 2008 and 2012, as crime rates fell to historic lows and the total prison population contracted, the number of people serving life sentences grew by 12%. By 2012, one in nine people in U.S. state and federal prisons — nearly 160,000 people — were there under life sentences. Two factors have driven this growth: the increased imposition of life sentences, particularly those that are parole-ineligible, and an increased reluctance to grant parole to the 110,000 lifers who are eligible. MO
January 31, 2017 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)
Sunday, January 29, 2017
"A Better Approach to Violent Crime"
The title of this post is the headline given by the Wall Street Journal to John Pfaff's extended weekend commentary about crime and punishment in the United States. The subheadline provides a better summary of the themes of the extended essay: "If we’re going to end mass incarceration in the U.S., it will mean figuring out better ways to prevent violent crimes and to deal with those who commit them." John's analysis of modern mass incarceration is always in the must-read category, and here are some extended excerpts from this latest piece that help highlight why:
If we are serious about ending mass incarceration in the U.S., we will have to figure out how to lock up fewer people who have committed violent acts and to incarcerate those we do imprison for less time.
There is an obvious rejoinder, of course: Don’t we need to keep people convicted of violence locked up for long periods? Isn’t this how we’ve kept the crime rate down for so long? The answer to both of those questions is, “No, not likely.” Simply put, long prison sentences provide neither the deterrence nor the incapacitation effects that their proponents suggest. (There may be moral arguments for long sentences, but that is a separate issue from public safety.)...
Violence is a phase, not a state. People age into violent behavior and age out of it: A 24-year-old is more violent than a 7-year-old or a 60-year-old. It’s true that some people are more prone to violence than their peers, but almost everyone exhibits some sort of bell-curved trajectory of violence over their lives. Young men are simply more prone to violence than any other demographic group.
It is almost impossible, however, to predict how violent a young person will be in the future. Imposing harsh sanctions for a first violent act needlessly detains many people who are not serious future risks. In addition — and somewhat counterintuitively — by the time a person in his 30s has generated a long criminal history suggesting that he poses a continuing risk, he is likely to have started “aging out” of crime, violent behavior in particular.
A prominent study of hundreds of at-risk men that tracked their behavior from ages 7 to 70, for example, found that most started to engage in crime in their late teens and began to stop in their mid to late 20s. Only about 10% continued to offend consistently into their 30s, and only about 3% did so at high rates.
California has tested this proposition. Since 2012, the state has granted early release to over 2,000 people convicted under its harsh three-strikes law, and their recidivism rate has been about a 10th of the state average (4.7% vs. 45%) — due in no small part to the fact that those released early are often in their 40s and 50s and thus no longer likely to offend.
Whether aimed at younger or older defendants, lengthy incapacitation often imposes substantial, avoidable costs — not just on prison budgets but on society at large, which loses many people who might otherwise be productive citizens. A long prison sentence also undermines someone’s ability to find the stabilizing influence of a job or a spouse, thus increasing the long-run risk that he will reoffend.
The good news is that a growing number of proven tactics can keep violent crime low, and perhaps reduce it even further, without relying as much on prison. If governments lock up fewer people for violent crimes, they can use some of the savings to help fund these alternatives.
One widely adopted approach is what experts call “focused deterrence,” which was first tried, with great success, in Boston in the mid-1990s. Aimed at reducing the violence associated with gang membership, the program brings gang members together with the police, social-service providers and respected members of the local community. They are told that if violence continues, the police will crack down quickly and severely. Those who agree to put violence behind them, however, are offered help with housing, education, drug and alcohol treatment and other services, and community leaders make a moral plea to them. Such programs have had a significant effect on street violence in many places. Nine of the 10 high-quality studies that have been done on focused deterrence report strong impacts — a 63% decline in youth homicides in Boston, a 35% decline in murders among “criminally active group members” in Cincinnati and so on.
A related but less conventional approach called “Cure Violence” has been tried in New York City and Chicago (and even as far afield as Rio de Janeiro and Basra, Iraq). This program treats gun violence as a public-health problem: If left “untreated,” a shooting will be transmitted to another victim, thanks to retaliation. The idea is to interrupt that cycle, relying on people like former gang members (as opposed to the police) to help shooting victims and their friends and family find other, nonviolent ways to resolve the conflict.
Like focused deterrence, this approach also seeks to provide at-risk youth with access to resources, ranging from housing to entertainment. In New York City, a study conducted between 2010 and 2012 found that areas where Cure Violence operated had experienced 20% fewer shootings as compared with similar areas. Conversely, shootings in Chicago began to rise sharply shortly after a stalemate over the state budget resulted in a drastic cut in funding for Cure Violence in March 2015. The biggest increases in lethal violence occurred in those neighborhoods where the program had been used most widely.
Another key tactic is “hot-spot policing.” Crime is generally concentrated in particular neighborhoods. Some studies have found that half of all urban crimes take place in under 10% of all city blocks. In Chicago, nearly 45% of the increase in murders between 2015 and 2016 occurred in only five neighborhoods, home to just 9% of the city’s population. Hot-spot policing identifies these high-crime blocks and significantly increases patrols and community involvement there.
It has produced significant results, even in nearby neighborhoods not subject to increased enforcement, which suggests that people are not simply changing where they commit crimes. The Philadelphia Foot Patrol Experiment, for example, identified 120 blocks that had high levels of violent crime and then assigned additional patrol officers to 60 randomly selected blocks for three months. Hot spots with extra patrols experienced a 23% drop in violent crime relative to those that didn’t. A comprehensive review of the hot-spot literature found that 20 out of 25 tests reported “noteworthy crime control gains.”...
Prison, in short, is by no means the only effective way to respond to violent behavior. In fact, compared with these programs, prison is likely one of the least efficient approaches that we have. The declines in incarceration over the past six years are worth celebrating. But they are modest, in no small part because politicians are understandably afraid to confront a fundamental source of prison growth: our shortsighted policies on violent crime.
If we really hope to scale back our sprawling prison system, we must send fewer people to prison for violent crimes and keep those we do lock up for less time. Fortunately, we can preserve the tremendous reductions of violence we have experienced over the past 25 years with smarter, safer and more humane approaches.
January 29, 2017 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Scope of Imprisonment | Permalink | Comments (2)
Wednesday, January 25, 2017
"Following the Money of Mass Incarceration"
The title of this post is the title of this notable new report and infographic from the folks at the Prison Policy Initiative. Here is part of the text of the report:
The cost of imprisonment — including who benefits and who pays — is a major part of the national discussion around criminal justice policy. But prisons and jails are just one piece of the criminal justice system and the amount of media and policy attention that the various players get is not necessarily proportional to their influence.
In this first-of-its-kind report, we find that the system of mass incarceration costs the government and families of justice-involved people at least $182 billion every year. In this report:
• we provide the significant1 costs of our globally unprecedented system of mass incarceration and over-criminalization,
• we give the relative importance of the various parts,
• we highlight some of the under-discussed yet costly parts of the system, and then
• we share all of our sources so that journalists and advocates can build upon our work.
Our goal with this report is to give a hint as to how the criminal justice system works by identifying some of the key stakeholders and quantifying their “stake” in the status quo. Our visualization shows how wide and how deep mass incarceration and over-criminalization have spread into our economy. We find:
• Almost half of the money spent on running the correctional system goes to paying staff. This group is an influential lobby that sometimes prevents reform and whose influence is often protected even when prison populations drop.
• The criminal justice system is overwhelmingly a public system, with private prison companies acting only as extensions of the public system. The government payroll for corrections employees is over 100 times higher than the private prison industry’s profits.
• Despite the fact that the Constitution requires counsel to be appointed for defendants unable to afford legal representation, the system only spends $4.5 billion on this right. And over the last decade, states have been reducing this figure even as caseloads have grown.
• Private companies that supply goods to the prison commissary or provide telephone service for correctional facilities bring in almost as much money ($2.9 billion) as governments pay private companies ($3.9 billion) to operate private prisons.
• Feeding and providing health care for 2.3 million people — a population larger than that of 15 different states — is expensive.
This report and infographic are a first step toward better understanding who benefits from mass incarceration and who might be resistant to reform. We have no doubt that we missed some costs, and we did not include some costs because they are relatively small in the big picture or are currently unknowable. But, by following the money, one can see that private prison corporations aren’t the only ones who benefit from mass incarceration.
Some of the lesser-known major players in the system of mass incarceration and over-criminalization are:
• Bail bond companies that collect $1.4 billion in nonrefundable fees from defendants and their families. The industry also actively works to block reforms that threaten its profits, even if reforms could prevent people from being detained in jail because of their poverty.
• Specialized phone companies that win monopoly contracts and charge families up to $24.95 for a 15-minute phone call.
• Commissary vendors that sell goods to incarcerated people — who rely largely on money sent by loved ones — is an even larger industry that brings in $1.6 billion a year.
A graphic like this shows the relative economic cost of different parts of mass incarceration, but it can also obscure the fact that we don’t have a single monolithic system. Instead, we have a federal system, 50 state systems, and thousands of local government systems. Sometimes these systems work together, although often they do not; and looking at just the national picture can obscure the importance of state and local policy decisions. For example, while state government spending makes up the majority (57%) of corrections costs, local governments make up almost a third (32%). Local governments are largely enforcing state law, and local discretionary arrest and bail policies can have tremendous influence on both the state budget and justice outcomes. For example, more than half ($13.6 billion) of the cost of running local jails is spent detaining people who have not been convicted.
To be sure, there are ideological as well as economic reasons for mass incarceration and over-criminalization. But at this moment, when crime is near record lows and there is increasing attention to the role of privatization in the justice system, we need a far more expansive view of how our criminal justice system works, whom it hurts, and whom it really serves. If we are to make our society safer and stronger, we’ll need to be making far smarter investments than we are today.
Tuesday, January 24, 2017
"Orange is the New Black: Inequality in America's Criminal Justice System"
The title of this post is the title of this great event taking place on my own Ohio State University campus tomorrow afternoon. And that title should cue most everyone into the reality that the event is a speech to be delivered by Piper Kerman. Here is how the event is being described:
Bringing her message to Ohio State in this free talk and Q&A presented as part the university’s COMPAS program, Piper Kerman will speak about her own experiences in prison and shed light on the wide-ranging collateral damage of America’s criminal justice practices—particularly on family stability, women, children, and minorities.
Piper Kerman is the author of Orange Is the New Black: My Year in a Women’s Prison (Spiegel & Grau), a bestselling book that has been adapted by Jenji Kohan into an Emmy and Peabody Award–winning original series for Netflix. A hit TV show wasn’t Piper Kerman’s goal when she wrote her memoir about her 13 months in the Danbury Federal Correctional Institution, but its success has led to a life of advocacy for criminal justice reform.
The United States has the highest incarceration rate in the world. There are 2.2 million people in the nation’s prisons and jails—a 500% increase over the last 40 years disproportionately affecting people of color. During this time the number of incarcerated women has increased by more than 700%. Though many more men are imprisoned than women, the rate of growth for female imprisonment has outpaced men by more than 50% between 1980 and 2014. According to sentencingproject.org, there are now 1.2 million women under the supervision of the criminal justice system.
Kerman is the recipient of Harvard's Humanist Heroine Award (2015), as well as the Constitutional Commentary Award from The Constitution Project (2014) and John Jay College's Justice Trailblazer Award (2014). She has testified before Congressional Committees and been invited to present on reentry issues at The White House. She has lectured to hundreds of audiences across the US ranging from justice reform groups, corrections professionals, universities, policymakers, and business leadership events.
A series of year-long conversations on morality, politics, and society, Ohio State’s COMPAS program hopes to promote sustained reflection on the ethical challenges that unify various projects within the university’s Discovery Themes Initiative.
Two Governors dealing with prison overcrowding problems in distinct ways
I covered some midwest prison stories here yesterday, and today brings these interesting state prison reform stories from the south and west:
From Alabama here, "Gov. Robert Bentley says new prisons top priority this year"
As of September, Alabama had about 23,000 prisoners in facilities designed for about 13,000, an occupancy rate of about 175 percent. Overcrowding is not a new problem but makes it harder to deal with other pressing concerns.
In October, the U.S. Justice Department announced it was investigating the state's prisons. U.S. District Judge Myron Thompson is conducting a trial on claims that mental health care for inmates fails to meet constitutional standards. A trial on similar claims about medical care is expected later this year.
Department of Corrections Commissioner Jeff Dunn told lawmakers in November that prison violence was rising and the number of corrections officers had dropped by 20 percent in five years. Bentley and Dunn say the plan to build four new prisons, called the Alabama Prison Transformation Initiative, would be the most cost effective way to alleviate the overcrowding, under-staffing and other problems.
From Nevada here, "Sandoval wants to streamline parole process to fight prison overcrowding"
Nevada Gov. Brian Sandoval is pursuing creative solutions to a potential prison overcrowding challenge that could see capacity exceeded by 700 inmates by the end of the next budget without prompt action. “Our goal is to not construct a new prison,” Mike Willden, chief of staff to Sandoval, said in a budget briefing last week.
Prison construction is not cheap, and it has to be paid with state general funds. In 2007, the Legislature approved $300 million for prison construction projects. Sandoval’s solution rests primarily with the Division of Parole and Probation and the Parole Commission, which will be given new resources to speed up parole for as many as 300 to 400 eligible inmates....
At the Prison Board meeting, it was reported that one-third of paroled inmates being returned to prison were there for parole violations only. Crowding is a problem within the prison system.
Corrections Director James Dzurenda said at the meeting that 13,742 inmates were housed in the system — well over capacity if only regular housing beds were used. But the department has converted large areas of prisons, created for other purposes, into dormitory-style beds.
In addition to seeking to expedite paroles, the Department of Corrections has a capital construction project worth about $6 million to add 200 beds at the Southern Desert Correctional Center. A third element of the plan, if needed, sets aside about $12 million to temporarily house some Nevada inmates out-of-state while the parole efforts get up to speed, Willden said.
State lawmakers will get a first look at the corrections and parole budget proposals at a hearing Jan. 31, a week ahead of the start of the 2017 session on Feb. 6. Sandoval said in his budget that his goal is to reduce prison inmate recidivism by 10 percent through education programs and intervention services and resources, particularly in the areas of behavioral health, drug addiction and workforce training.
Monday, January 23, 2017
Rounding up some diverse prison stories from the industrial midwest
A handful of new stories about prisons emerging from a handful of industrial midwest states recently caught my eye and prompts this round-up:
From Indiana here, "Chief Medical Officer Of Indiana Prisons Held Overlapping Position"
From Michigan here, "Prison food contractor hit with $2M in penalties"
From Ohio here, "Pagans, Wiccans, Satanists can now practice religion in Ohio prisons
From Pennsylvania here, "'New normal:' With crime rates down, Pa. set to close 2 prisons"
The last of these listed stories seems like the biggest news, especially for those hoping state will be able to lead the way on reducing modern mass incarceration.
Saturday, January 21, 2017
"Mass Incarceration: Where Do We Go From Here?"
The title of this post is the title of this notable new report produced by the New York City Bar Association’s Task Force on Mass Incarceration. Here is how its introduction gets started:
The devastating consequences of mass incarceration have drawn unprecedented attention over the past few years. Journalists, academics and public interest groups have published extensive research, written compelling articles and lobbied politicians on both sides of the aisle to take concrete steps to reduce both our nation’s prison population and the terrible toll mass incarceration continues to inflict on vulnerable communities. As we show in this Report, progress has been made in the year since our Task Force was established, but much remains to be done. There also is considerable uncertainty about whether successful past initiatives will be carried forward by the Trump administration.
This Report therefore aims, in section II below, to chronicle past successes (as well as frustrations) at both the federal and state/local levels in reducing the country’s prison population and the harmful consequences and burdens of mass incarceration. Then, in section III below, we look ahead to areas for potential further action, again at the federal and the state/local levels. We close with a plea to public officials to use the information and initiatives highlighted here to recognize the enormous economic and social costs of over-incarceration, to emulate the promising examples of progress and reform recounted here, and to be creative in seeking to reduce the public cost and burden of our overreliance upon incarceration while still maintaining public order and safety in all communities.
Wednesday, January 18, 2017
"Dear President Trump: Here’s How to get Right on Crime, Part 1"
The title of this post is the headline of this notable new Marshall Project piece that is the start of a timely three-part series. Here is how the Marshall Project editors set up the series:
The election of Donald Trump, who ran a swaggering tough-on-crime campaign, disheartened many advocates of bipartisan criminal justice reform. The Marshall Project invited conservatives active in that cause to make a case to the president-elect — a conservative case — for ways to make the system more fair, humane and effective. This is the first of three commentaries.
The commentary to kick this off comes from Pat Nolan and carries the subheadline "Focus on intent, tailor the punishment to the crime, prepare prisoners for life after incarceration." Here is how it gets started:
Conservatives believe that the core function of government is keeping the public safe from harm within the constraints of individual liberty and limited government. We know it is the nature of bureaucracy that government agencies grow in size and inefficiency. The justice system must be held accountable for wise use of tax dollars just as it holds offenders accountable for their actions.
Crime is more than lawbreaking — it is victim harming. Victims should be involved at all stages of the justice process, and the system should aim to repair the harm caused by the crime whenever possible. Offenders should be held accountable to make restitution to their victims.
Evil intent (mens rea) has long been an essential element of all crimes. In recent years, however, the mens rea requirement has been dropped in favor of finding criminality even if there is no intent to break the law. Thus, an act committed in good faith can become the basis for a criminal conviction and a prison sentence. This is wrong, and mens rea must be restored as a key element of every crime.
The greatest power we cede to government is the ability to put someone in prison. While prisons are necessary to isolate offenders who threaten the safety of the community, there is a growing tendency to overuse prisons even when the public is not endangered. There are proven ways to hold non-dangerous offenders accountable without sending them to prison. We should use costly prison beds for the truly dangerous. Prisons are for people we are afraid of, but too often they are used for people we are merely mad at.
Cases should be decided individually, not as an assembly line of one-size-fits-all sentences. The harm done by a sentence should never be greater than the harm caused by the crime.
Crime that crosses state lines and national borders is the proper purview of federal laws. Other than those limited situations, crime is an inherently local problem and should be governed by local and state laws. However, in recent years Congress has federalized many crimes such as carjacking which have no national scope merely to strike a politically popular pose. Only those crimes that have a national reach should be federalized. Other crimes should be left to local law enforcement that is more responsive to their residents.
We recommend greater use of problem-solving courts, such as drug courts, veterans’ courts and mental health courts tailored to the special problems faced by these populations.
Prisons should do more than warehouse inmates. They should prepare offenders for their return to society by providing educational programs such as GED classes, drug treatment, anger management, and job skills. The cost of these programs is far exceeded by the savings from the resulting drop in crime rates.
January 18, 2017 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)
Tuesday, January 17, 2017
Extended dissent laments First Circuit panel's rejection of Eighth Amendment attack on 160-year sentence for stash house participant
I just notices a lengthy and blog-worthy opinion issued by the First Circuit late last week in US v. Rivera-Ruperto, No. 12-2364 (1st Cir. Jan 13, 2017) (available here). The start and final substantive paragraphs of the majority opinion provides the factual background for the Eighth Amendment claim and its formal fate:
This case arises out of a now-familiar, large-scale FBI investigation known as "Operation Guard Shack," in which the FBI, in an effort to root out police corruption throughout Puerto Rico, orchestrated a series of staged drug deals over the course of several years. For his participation in six of these Operation Guard Shack drug deals, Defendant- Appellant Wendell Rivera-Ruperto stood two trials and was found guilty of various federal drug and firearms-related crimes. The convictions resulted in Rivera-Ruperto receiving a combined sentence of 161-years and 10-months' imprisonment.....
At oral argument, counsel for Rivera-Ruperto argued that we should be swayed by the fact that, in this case, the crime involved fake drug deals. A near two life-term punishment where no real drugs and no real drug dealers were involved, he contended, is a punishment that is grossly disproportionate on its face. But in coming to this sentence, the judge below was guided by and correctly employed a sentencing scheme that is written into statute -- a statute that makes no distinction between cases involving real versus sham cocaine. At each of the six stings, in fact, Rivera-Ruperto repeatedly and voluntarily showed up armed and provided security services for what he believed to be illegal transactions between real cocaine dealers. The crime of possessing a firearm in furtherance of such a drug trafficking offense is a grave one, and Congress has made a legislative determination that it requires harsh punishment. Given the weight of the case law, we see no Eighth Amendment route for second-guessing that legislative judgment.
We thus cannot conclude that Rivera-Ruperto has established that his sentence, which is largely due to his consecutive sentences under § 924(c), is grossly disproportionate to the crime, so as to trigger Eighth Amendment protections.
The start and end of Judge Torruella's 35+-page dissent provides a much fuller primer on the Eighth Amendment and one judge's concerns about its application in this case:
The majority today affirms a sentence of 160 years and one month without the possibility of parole for Rivera-Ruperto. The transgression for which Rivera-Ruperto was punished in such an extreme manner was his participation as a security guard in several fake transactions, while the FBI duped Rivera-Ruperto into believing that the composite was actually illegal drugs. The FBI ensured that more than five kilograms of composite moved from one agent's hands to another at each transaction; the FBI also made sure that the rigged script included Rivera-Ruperto's possession of a pistol at each transaction. This combination -- more than five kilograms of composite, a pistol, and separate transactions -- triggered the mandatory consecutive minimums of 18 U.S.C. § 924(c), which make up 130 years of Rivera-Ruperto's sentence.
In a real drug transaction, all participants would be guilty of a crime. And, in general, the greater their knowledge of the crime would be, the harsher the law would punish them. In the fictitious transaction we are faced with today, however, only the duped participants, who had no knowledge of what truly transpired, are punished. The other participants are not only excused, but indeed rewarded for a job well done.
If Rivera-Ruperto had instead knowingly committed several real rapes, second-degree murders, and/or kidnappings, he would have received a much lower sentence; even if Rivera-Ruperto had taken a much more active role in, and brought a gun to, two much larger real drug deals, he would still have received a much lower sentence. For these and many other crimes Rivera-Ruperto would have received sentences that would see him released from prison during the natural term of his life. For the fictitious transgressions concocted by the authorities, however, Rivera- Ruperto will spend his entire life behind bars -- a sentence given to first-degree murderers, 18 U.S.C. § 1111, or those who cause death by wrecking a train carrying high-level nuclear waste. 18 U.S.C. § 1992.
From the majority's approval of the draconian sentence imposed in this case, I respectfully dissent. Rivera-Ruperto's sentence is grossly disproportionate to his offense, and therefore violates the Eighth Amendment to the Constitution. While some seemingly excessively harsh sentences have withstood Eighth Amendment challenges, such harsh sentences have been sanctioned only in the context of recidivists or those who otherwise dedicated themselves to a life of crime -- a context that explained the severity of the sentences. But Rivera-Ruperto has no criminal record, nor has he dedicated himself to a life of crime. Not even under the infamous § 924(c) has a first-time offender like Rivera-Ruperto ever been condemned to spend his entire life in jail....
Never before has a first-time offender who has not dedicated his life to crime been condemned to spend his entire life in prison for a transgression such as Rivera-Ruperto's, not even in cases in which the transgression was real -- and Rivera's-Ruperto's transgression is fictitious.
The Government has effectively asked this court to pronounce the Eighth Amendment dead for sentences for a term of years. I respectfully refuse to join in this pronouncement. "Unless we are to abandon the moral commitment embodied in the Eighth Amendment, proportionality review must never become effectively obsolete." Graham, 560 U.S. at 85 (Stevens, Ginsburg, Sotomayor, JJ., concurring).
Monday, January 16, 2017
"How the states can show the way: Participating in criminal justice reform, the states have saved over a billion dollars"
The title of this post is the headline given to this new Washington Times commentary authored by Marc Levin. Here is how it gets started:
While the nation is still waiting to see if Congress will take up criminal justice reform, states have been quietly getting the job done. A new Urban Institute report shows that states participating in the Justice Reinvestment Initiative (JRI) have saved over a billion dollars thus far through smart reforms to sentencing laws, pretrial practices, and prison release policies. Moreover, this has enhanced public safety.
It’s a direction deserving of praise on both sides of the aisle. Reforms curb prison growth and relieve unsustainable costs for the states, while giving states the opportunity to reinvest funds into programs that will reduce crime and reoffending, such as community behavioral health treatment, and services for victims. And they have reinvested, at least $450 million so far.
Guided by the U.S. Department of Justice and the Pew Charitable Trusts, JRI catalyzes change in both process and policy through intensive technical support to bipartisan groups of key criminal justice players. Where states typically address criminal penalties on ad hoc basis, JRI brings together a task force of judges, prosecutors, victims’ advocates, and other stakeholders to analyze data about the state’s prison population and use it as the basis to collaboratively develop a comprehensive plan that will cut growth and reduce reoffending. The policy reforms embrace accountability for both offenders and the justice system, better distinguishing between those who must be incarcerated due to the danger they pose to society and those who can be rehabilitated in the community.
Here in Texas, success with this type of criminal justice reform was part of what prompted broad investment in JRI. Texas reforms have yielded an incredible $3 billion in savings and averted costs over almost 10 years, providing opportunities to reinvest hundreds of millions of dollars into treatment and diversion programs. Among the most successful interventions that Texas expanded in its 2007 justice reinvestment plan were drug courts, which led to lower re-arrest rates and reincarceration rates while costing the state a fraction of the amount Texas spends on incarceration.
Alongside declines in imprisonment we see a decline in crime rate. From 2010 to 2015 in the 10 states with the largest imprisonment declines, the crime rate fell an average of 14.4 percent, compared with 8.1 percent in the 10 states with the biggest growth in imprisonment. For example, the FBI index crime rate in South Carolina is now 15.7 percent lower than when the state’s justice reinvestment plan was adopted in 2010. Similarly, Texas’ crime rate has fallen 30 percent since its 2007 justice reinvestment plan.
UCLA Prison Law & Policy Program launches Prison Law JD, a new listserv for connecting new folks to prisoners' rights lawyers.
The UCLA Prison Law & Policy Program has just launched Prison Law JD, a new listserv designed for law students and young lawyers interested in prisoners’ rights. It will be used to share job and fellowship announcements and other information of interest, and for discussion and mutual support. There is already an active listserv connecting practicing prisoners’ rights lawyers around the country, which has enabled the building of a strong and supportive national community of people doing this work. Prison Law JD aims to build out this community to include the next generation of prisoners’ rights advocates.
If you know any law students or young lawyers who might want to join, please invite them to contact Sharon Dolovich at dolovich @ law.ucla.edu.
Thursday, January 12, 2017
New Jersey Supreme Court addresses Miller's application to all serious juve sentencings
As reported in this local article, the top court in the Garden State "ruled unanimously Wednesday to overhaul the way New Jersey judges sentence juveniles convicted in violent crimes that could keep them in prison until they are elderly or dead." Here is more from the press report on the opinion:
The state's highest court ruled 7-0 that judges must consider a number of factors -- including age, family environment, and peer pressure -- before issuing lengthy sentences to youths in serious cases. Peter Verniero, a former state Supreme Court justice and state attorney general, said this is "one of the most significant sentencing decisions" the court has made in "many years."
And in a rare move, the court also urged the New Jersey Legislature to revise the state's current law on juvenile sentencing to "avoid a potential constitutional challenge in the future," according to the decision, written by Chief Justice Stuart Rabner.
The decision is the result of appeals filed by a pair of men who were convicted separately of violent crimes years ago in Essex County when they were 17 and were sentenced to decades in prison. Ricky Zuber was convicted for his role in two gang rapes in 1981 and was sentenced to 110 years in prison. He would not have been eligible for parole for 55 years -- a time when he would be 72. James Comer was convicted of four armed robberies in 2000, including one where an accomplice shot and killed a victim. He would have become eligible for parole when he was 85 -- after having served 68 years.
Rabner wrote that judges in both cases did not take "age or related circumstances" into account when issuing the sentences. But, Rabner said, the U.S. Supreme Court has since "sent a clear message" that "children are different" from adults and that "youth and its attendant characteristics" must be considered when sentencing a juvenile to life in prison without parole.
"Because of their young age at the time of their crimes, both defendants can expect to spend more than a half century in jail before they may be released -- longer than the time served by some adults convicted of first-degree murder," Rabner wrote.
Rabner cited how in a 2012 decision called Miller v. Alabama, the U.S. Supreme Court ruled that judges presiding over cases involving juveniles facing life sentences without parole must consider a number of factors before sentencing. Those include immaturity; family and home environment; family and peer pressures; an"inability to deal with police officers or prosecutors" or their own attorney; and "the possibility of rehabilitation."
But New Jersey's Supreme Court went further, saying those standards must be applied not only to sentences of life without parole but also to youths who face lengthy sentences. The court also cited a the Eighth Amendment of the U.S. Constitution, which protects defendants from "cruel and unusual punishment."
"Youth matters under the constitution," Rabner wrote.
The full opinion is available at this link, and it covers a lot of important post-Graham and post-Miller ground concerning juvenile sentencing.
January 12, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)
Wednesday, January 11, 2017
Great political and practical "state of reform" reviews via Jacobin
The magazine Jacobin has recently run two effective pieces by two effective writers about the politics and practicalities of modern sentencing reform efforts. Here are links to the lengthy pieces, both of which I recommend in full, with their introductions:
Many are mourning the death of comprehensive criminal justice reform at the federal level in the wake of the election of Donald Trump, who unabashedly campaigned as the law-and-order candidate. They fear we may be at the beginning of the end of the “smart-on-crime” era, in which historic adversaries across the political spectrum joined forces to reverse the punitive policies and politics that have turned the United States into the world’s leading warden.
Some have sought solace in the belief that Trump’s victory will have a limited impact because most people are apprehended, tried, and sentenced subject to state and local statutes and authorities, not federal ones, and that 90 percent of the more than 2 million people incarcerated today in the United States are serving their time in state prisons and county jails, not federal penitentiaries. They view Trump as a political meteorite that may have blown up the elite bipartisan reform coalition in Washington as it blazed through an uncharted political universe but left promising reform coalitions at the state and local levels largely intact.
This conventional postmortem paradoxically overestimates Trump’s responsibility for imperiling criminal justice reform at the national level while underestimating his likely impact on state and local reform efforts.
Trump’s outsized personality and spectacular victory obscure the reality that the smart-on-crime approach had severe limitations and weaknesses that have been hiding in plain sight for years. The politics that gave birth to this strange bedfellows coalition engineered by Right on Crime — a group of brand-name conservatives and libertarians that included Newt Gingrich, Grover Norquist, and Charles and David Koch — helps explain both its limited accomplishments and the triumph of Trumpism.
A ray of sunshine recently poked through the otherwise gloomy holiday headlines: “US prison population falling as crime rates stay low.” The prison population has indeed fallen, and crime rates are still down. But while the crime that politicians exploited to create mass incarceration has plummeted, the number of prisoners locked up in the name of public safety has only budged.
Mass incarceration, in short, remains a durable monstrosity.
As of 2015, an estimated 2,173,800 Americans were behind bars — 1,526,800 in prison and 728,200 in jails — according to recently released data from the Bureau of Justice Statistics. That’s 16,400 fewer people in jail and 35,500 fewer prisoners than in 2014 — a 2.3 percent decline and, for prisoners, the largest single-year drop since 1978. The 2015 figure also marks the lowest overall prison population since 2005. Crime rates have plunged, falling “to levels not seen since the late 1960s.”
But even as the US becomes a much safer country, it still incarcerates its citizens at much higher rates than most any other on earth. To put things in perspective, our prison archipelago today confines a population similar in size to the city of Houston or the borough of Queens.
At the dawn of mass incarceration in 1980, the US’s already-quite-large prison population was estimated at 329,821. To return to that number, the governments would have to replicate the recent 35,500-prisoner reduction for roughly thirty-four years in a row. That’s a very long time to wait for the poor communities — particularly but not exclusively brown and black ones — that mass incarceration devastates.
The criminal justice reform movement has stopped losing. But it hasn’t really started to win.
January 11, 2017 in Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)
Thursday, January 05, 2017
Lamenting big criminal justice problems in the little state of Delaware
This new local commentary from Delaware authored by Jack Guerin, headlined "A perfect storm of failure in criminal justice," tell a pretty disconcerting story about the First State. Here is how the commentary gets started:
By every conceivable measure, Delaware’s criminal justice system is a failure. The Wall Street Journal recently reported that “Delaware has one of the highest violent crime rates in the country.” The article found that our state ranked third highest among all states in robberies, and that the rate of crime in Wilmington is “one of the highest of any large city in the country.”
In November, the Delaware Criminal Justice Council issued its annual report on recidivism in Delaware, finding that “by the end of three years, about 76 percent of offenders in each cohort had been rearrested for a serious offense.” Most recidivism events occurred in the first two years after release.
In December, the Bureau of Justice Statistics issued a report ranking Delaware’s prison system fifth highest among states in overcrowding at 154.7 percent of design capacity. A recent report by the Liman Program at the Yale Law School ranked Delaware (tied with Tennessee) as having the third highest percentage of prisoners in solitary confinement in the nation.
With high rates of crime, incarceration, recidivism, overcrowding and solitary confinement, Delaware represents the perfect storm of failure for the “tough on crime” policies initiated more than 40 years ago. Our enormous investment in punitive incarceration is not making us safer.
Prez Obama produces lengthy Harvard Law Review article titled "The President’s Role in Advancing Criminal Justice Reform"
I am intrigued and surprised (and concerned that I will soon be very aggravated) by this lengthy new Harvard Law Review article authored by Barack Obama. In style (because the article runs 50+ pages with 300+ footnotes), the article hints that Prez Obama is interested in going back to being a law professor after he finishes his current gig. In substance, the article's introduction provides this overview:
Part I details the current criminal justice landscape and emphasizes the urgent need for reform. It would be a tragic mistake to treat criminal justice reform as an agenda limited to certain communities. All Americans have an interest in living in safe and vibrant neighborhoods, in raising their children in a country of equal treatment and second chances, and in entrusting their liberty to a justice system that remains true to our highest ideals. We simply cannot afford to spend $80 billion annually on incarceration, to write off the seventy million Americans — that’s almost one in three adults — with some form of criminal record, to release 600,000 inmates each year without a better program to reintegrate them into society, or to ignore the humanity of 2.2 million men and women currently in U.S. jails and prisons and over 11 million men and women moving in and out of U.S. jails every year. In addition, we cannot deny the legacy of racism that continues to drive inequality in how the justice system is experienced by so many Americans.
Part II shows how the President can drive significant reform at the federal level. Working with Congress, my Administration helped secure bipartisan sentencing reform legislation reducing the crack-topowder-cocaine disparity. As an executive branch, we’ve been able to make important changes to federal charging policies and practices, the administration of federal prisons, and federal policies relating to reentry. And through the presidential pardon power, I have commuted the sentences of more than 1000 prisoners. Even though there are important structural and prudential constraints on how the President can directly influence criminal enforcement, these changes illustrate that presidential administrations can and do shape the direction of the federal criminal justice system in lasting and profound ways.
Part III details the approaches that Presidents can take to promote change at the state and local level, recognizing that the state and local justice systems tend to have a far broader and more pervasive impact on the lives of most Americans than does the federal justice system. While the President and the executive branch play a less direct role in these systems, there are still opportunities — as my Administration’s work demonstrates — to advance reform through a combination of federal-local partnerships, the promulgation of best practices, enforcement, federal grant programs, and assembling reform-minded jurisdictions struggling with similar challenges.
Part IV highlights some of the work that remains, focusing on reforms that are supported by broad consensus and could be completed in the near term. These include passing bipartisan criminal justice reform legislation in Congress, adopting commonsense measures to keep firearms out of the hands of those who are a threat to others or themselves, finding better ways to address the tragic opioid epidemic in this country, implementing critical reforms to forensic science, improving criminal justice data, and using technology to enhance trust in and the effectiveness of law enforcement.
I fear I will be aggravated by this article because it will confirm that Prez Obama (or his staff who helped author this article) truly understands the need to major criminal justice reforms and yet so relatively little got achieved on this front during Prez Obama's eight yesr in office. Also, I know I am already going to be troubled by what is not said in this article because a quick word search reveals that the word "marijuana" is not mentioned once even though state-level marijuana reform is by far the biggest criminal justice reform story of the Obama era (which, to the Obama Administration's credit, was in part fueled by his Justice Department's express hands off policy).
January 5, 2017 in Clemency and Pardons, Prisons and prisoners, Purposes of Punishment and Sentencing, Race, Class, and Gender, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (10)
Thursday, December 29, 2016
BJS releases three big reports on correctional populations throughout the United States
Via email today I received news of and links to a bunch of big data reports from the Bureau of Justice Statistics (which is part of the Office of Justice Programs at the U.S. Department of Justice). Here are the titles, links and descriptions of these notable new publications:
This report presents statistics on persons supervised by adult correctional systems in the United States at yearend 2015, including persons 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 2015. Appendix tables provide statistics on other correctional populations and jurisdiction-level estimates of the total correctional population by correctional status and sex for selected years.
This report presents final counts of prisoners under the jurisdiction of state and federal correctional authorities at yearend 2015, including admissions, releases, noncitizen inmates, and inmates age 17 or younger. The report describes prisoner populations by—
- most serious offense
- demographic characteristics.
Selected findings on prison capacity and prisoners held in private prisons, local jails, and the U.S. military and territories are also included. Findings are based on data from BJS's National Prisoner Statistics program, which collects data from state departments of correction and the Federal Bureau of Prisons.
This report presents information on changes in the jail inmate population between 2000 and 2015 by—
- demographic characteristics
- conviction status
- average daily population
- rated capacity of local jails
- percent of capacity occupied.
It also includes statistics, by jurisdiction size, on changes in the number of inmates, admissions, and weekly turnover rate from 2014 to 2015. Estimates and standard errors were based on BJS's Annual Survey of Jails.
Tuesday, December 27, 2016
Making the fiscal, anti-government-waste case against excessive incarceration
This commentary authored by a business columnist in Texas makes a "government waste" case against having too many persons in prison. The piece is headlined "Misused prisons waste capital, labor and real estate," and here is how it gets started:
An executive can commit no greater sin in business than to misuse capital, labor or real property, the foundations of wealth. No government program wastes all three more than the prison system, where taxpayer money is spent to lock people up in publicly owned facilities. That's why societies must make sure prisons are used only for those we fear, and not for those with whom we are only angry.
Texas, though, spends too much money imprisoning people who should be rehabilitated by other means, according to Bill Hammond, president and CEO of the Texas Association of Business. The state's chamber of commerce has joined conservative and liberal organizations to create the Smart-on-Crime Coalition to demand better. "Texas has the largest prison population of any state in the country. Nearly 145,000 are incarcerated, and a significant percentage of those are low-level offenders. People who are being held for violating parole or minor drug crimes," Hammond said. "Violent criminals, rapists and sexual offenders do belong in prison. However, there are some people whom we do not think belong in prison because of the cost."
Texas spends about $3 billion a year on prisons. Keeping someone behind bars costs about $50 a day, compared with $3 a day for supervised probation. With Texas lawmakers facing an $8 billion shortfall to maintain the current level of government services in 2018-2019, they need to find savings, and criminal justice is overdue for an overhaul.
Hammond explained at an Austin news conference that it's not just about saving taxpayer money, though. It's about keeping nonviolent offenders employed and providing for their families while making restitution. Diversion programs and alternative sentencing can also force offenders to get treatment for drug addiction and mental health problems that underlie most crimes today. "You are talking about individuals who are working, who are paying taxes, who are paying child support. They should be part of the community and part of the workforce instead of rotting in some prison at a high cost to taxpayers," Hammond said.
Monday, December 26, 2016
"Society must not forget those it incarcerates"
The title of this post is the headline given to this new commentary authored by my colleague Steven Chanenson (who is also co-managing editor of the Federal Sentencing Reporter and a former chair of the Pennsylvania Commission on Sentencing). Here are excerpts:
Prisons are usually hidden and often grim places. Supreme Court Justice William J. Brennan, Jr.'s observation nearly 30 years ago still rings true today: "Prisoners are persons whom most of us would rather not think about. Banished from everyday sight, they exist in a shadow world that only dimly enters our awareness." It should not and need not be that way.
Although there is a vigorous debate over when and to what extent they should be used, prisons are a key public safety tool. Whenever used, incarceration must be effective, safe, and humane. Prisoners are not popular, but how we treat our criminals is, in the words of Winston Churchill, "one of the most unfailing tests of the civilization of any country."
Society has a right and an obligation to protect itself, but it needs to do so while considering both the short- and the long-term consequences for all involved. Most prisoners eventually return to our communities. Last year, almost 20,000 people were released from the Pennsylvania Department of Corrections. They are once again our neighbors across the commonwealth.
Thus, it is in everyone's interest for people who return from prison to come back better equipped to succeed than when they arrived there. If we want to slow the revolving door of incarceration and crime, we must provide meaningful access to treatment, training, and, yes, hope. We must hold the prisons accountable for meeting those goals, including through independent oversight. Both society and the inmates themselves deserve no less.
We must also celebrate the positive work done in prisons. One especially bright ray of hope was on display this month at the State Correctional Institution at Chester. The inmates and staff at the Chester prison partnered with other stakeholders to present a series of TEDx talks focused on the children of incarcerated parents.... Under the able leadership of Corrections Secretary John Wetzel, this was the fourth set of TEDx talks from a Pennsylvania prison. Like the earlier sessions, the discussions in Chester highlighted challenges faced and progress made by the speakers. While talking about the more than 81,000 Pennsylvania children who have a parent in a Pennsylvania prison, they provided a glimpse of some constructive energy that may eventually benefit those of us outside the prison walls....
Particularly during the holiday season, many of us think about the humanity of our fellow men and women. That is a sentiment we should nurture. We need to remember people in prison, how they are treated and what will happen to everyone when they return to our neighborhoods. There was a clear demonstration of hope — for safer communities and our collective humanity — at the State Correctional Institution at Chester. For that, we should all be thankful.
Sunday, December 25, 2016
Holiday pitch from NY Times editorial board for "Cutting Prison Sentences, and Costs"
With Christmas on a Sunday this year, I will have to guess whether it was a holiday spirit or an end of year spirit that inspired this new New York Times editorial headlined "Cutting Prison Sentences, and Costs." Here are excerpts, with a little commentary to follow:
States across the country have rushed to trim prison costs by backing away from the draconian sentencing policies that drove up the national prison population from 200,000 at the start of the 1970s to a peak of about 1.6 million in 2009. While the total inmate population has declined by 2.9 percent since then, several states that approached reform more aggressively have already reduced their prison populations by far more. California, New Jersey, New York and Rhode Island have done so by more than 20 percent.
These states have shown that it is possible to shorten sentences — or divert offenders to community supervision — without compromising public safety. But even bolder reforms to the sentencing system will be necessary to bring the prison census down to where it should be and reverse the corrosive effects of mass incarceration....
A new report by the Brennan Center for Justice at New York University School of Law provides a blueprint for further reforms. It calls on states to mandate alternative sentences like drug treatment, probation or community service for low-level crimes like drug possession, minor drug trafficking, minor fraud, forgery and theft, which account for 25 percent of the nation’s prison population. Judges would have the flexibility to hand down prison sentences in exceptional circumstances, as in the case of serious, repeat offenders.
The report also recommends a reduction in sentences for major crimes that account for a majority of the prison population — aggravated assault, murder, nonviolent weapons offenses, robbery, serious burglary and serious drug trafficking. (Under such a system, the typical inmate convicted of, say, robbery would serve 3.1 years, as opposed to 4.2.) If these reforms were retroactively applied, the authors estimate, more than 200,000 people serving time for these crimes would be eligible for release.
Under a saner system, the report says, nearly 40 percent of the country’s inmate population could be released from prison without jeopardizing public safety. This would save states $200 billion over the first 10 years — enough to hire 270,000 new police officers, 360,000 probation officers or 327,000 teachers.
The preliminary reforms that many states already have enacted reflect a growing realization that mass incarceration is economically unsustainable and socially disastrous. But to reverse four decades of bad policy, state lawmakers will have to adopt a more decisive and systematic approach to sentencing reform.
Though I am inclined to embrace the essential elements of this editorial, it strikes me as politically and practically tone-deaf in many respects. Politically, the editorial could and should have emphasized the significant number of "red states" that have reduced their prison populations, states like Texas and Georgia and South Carolina and Mississippi. Practically, the editorial could and should have acknowledged that some violent crime (especially murder) and heroin problems have been increasing in recent years, which in turn suggests and demands that states and the federal government focus on fighting crime smarter and not just tougher.
Saturday, December 24, 2016
Louisiana appeals court find LWOP sentence unconstitutionally excessive for fourth minor offense
As reported in this lengthy local article, headlined "Appeals court vacates 'unconscionable' life sentence for New Orleans man over theft of $15 from 'bait vehicle'," this past week brought a notable state constitutional ruling from the Louisiana Fourth Circuit Court of Appeal. Here are the basics from the press report:
Walter Johnson was walking down a street in Uptown New Orleans a week before Thanksgiving in 2013 when he noticed a Jeep Cherokee with the driver's side window down. He glanced inside and saw a laptop and $15 in cash -- a $10 bill and a $5. Johnson snatched the bills. He left the computer.
As it turns out, the Jeep was a law enforcement "bait vehicle," and Johnson was the catch of the day. He was found guilty of simple burglary and illegal possession of stolen things at a trial in April 2015, and Orleans Parish District Attorney Leon Cannizzaro's office promptly invoked the state's habitual-offender law.
Johnson, who had prior convictions for simple burglary, heroin possession and cocaine distribution, was deemed a four-time felon. Criminal District Court Judge Karen Herman sentenced him in October 2015 to a mandatory life prison term with no parole.
But on Wednesday, an appeals court panel threw out Johnson's life sentence, finding his street heist "shockingly minor in nature," the amount "extraordinary in its triviality" and Johnson's life sentence an "unconscionable" punishment that "shocks our sense of justice." The appeals court sent the case back to Herman, telling her to resentence Johnson "to a term that is not unconstitutionally excessive."
The 10-page opinion, written by 4th Circuit Court of Appeal Judge Paul Bonin, marks the latest bid to limit the discretion that state law grants prosecutors to ratchet up sentences for low-level drug offenders and other nonviolent criminals with multiple convictions.
Judges have little control over such decisions, and the Louisiana Supreme Court has been loath to step on the Legislature's toes by overriding one of the nation's stiffest habitual-offender laws. The state's high court has ruled that departures below the law's mandatory minimum sentences must be limited to "exceedingly rare" cases.
But occasionally it has seen fit to do so. Last year, for instance, the Supreme Court found a 30-year sentence "unconscionable" for Doreatha Mosby, a 73-year-old New Orleans woman who was found with a crack pipe tucked in her bra. Yet in the case of Bernard Noble, a father of seven who was found with the equivalent of two joints of marijuana, the court found he wasn't unusual enough to allow a sentence below the mandatory 13-year minimum under the statute.
Both of those cases, as well as Johnson's, came out of Orleans Parish, where Cannizzaro employs the habitual-offender law far more than any other prosecutor in the state. In 2015, Cannizzaro's office sent 154 convicts off to long prison sentences under the statute — almost one of every four offenders who were shipped to state prisons from New Orleans that year, according to state data analyzed by the Pew Charitable Trusts.
"You're dealing with different crime problems, socioeconomic levels, and you're dealing with different judges, different sentencing dispositions," Christopher Bowman, a spokesman for Cannizzaro's office, said in explaining the office's penchant for deploying the statute. "If you were dealing with a situation where a prosecutor feels probation is being given too freely, then the district attorney is required to use the habitual-offender law."
The full majority ruling in Louisiana v. Johnson is available at this link. Notably, the rule s based on the Louisiana state constitutional provision prohibiting "cruel, excessive, or unusual punishment." La. Const. art. 1, § 20. Here is one notable passage (with some cites removed) from the Johnson decision:
Despite its legality, however, we find the life-without-parole sentence imposed upon Mr. Johnson unconstitutionally excessive. Mr. Johnson reached into the open window of a bait-vehicle and took fifteen dollars. He is now condemned to die in prison for that crime.
We acknowledge that Mr. Johnson's life sentence, under the habitual offender law, is intended as punishment not only the current conviction, but all prior convictions as well. Legitimate sentencing goals notwithstanding, Mr. Johnson's status as a fourth felony offender "cannot be considered in the abstract." Solem, 463 U.S. at 296. As previously noted, the trial judge found that all his prior felonies were for nonviolent crimes. And the instant offense, the one which set in motion the habitual offender proceedings, is shockingly minor in nature. No person was harmed, nor any property damaged. Had Mr. Johnson taken the fifteen dollars but not by entry into a vehicle or other structure listed in the simple burglary statute, he would have been convicted of misdemeanor theft.
Wednesday, December 21, 2016
"The Obama Legacy: Chipping Away at Mass Incarceration" ... but ...
The quoted portion of the title of this post is the headline of this notable new commentary authored by Marc Mauer. Perhaps appropriately given the "Obama Legacy" label, the piece is focused mostly on the federal sentencing system. And, in my view inappropriately, the piece gives Prez Obama a little too much credit for some of what I consider to be his "day late and dollar short" work in this arena. With that set up, here are excerpts (with two lines emphasized that really rankles me, as I will explain after the excerpt):
As President Obama prepares to leave office, the United States still holds the dubious honor of having the highest incarceration rate in the world, with 2.2 million people behind bars. In order to assess his impact on the criminal justice system, it’s necessary to examine the policy shifts that got us here in the first place.
In 1980 there were 24,000 people in the federal prison system, about 25% of whom were serving time for a drug offense. By the time Obama was elected in 2008, that number had ballooned to 201,000 people, nearly half of whom were locked up for a drug offense.
There are two key reasons for the population explosion — both rooted in the war on drugs. First, President Reagan encouraged federal law enforcement agencies and prosecutors to emphasize drug arrests. Second, Congress adopted mandatory sentencing policies — frequently applied to drug offenses — that established a “one size fits all” approach to sentencing. Federal judges were obligated to impose prison terms of 5, 10, 20 years — or even life — largely based on the quantity of drugs involved. They were not permitted to take any individual factors, such as histories of abuse or parenting responsibilities, into account to mitigate those sentences. The racial disparities from these sentencing policies were particularly extreme.
The most egregious of these policies were tied to crack cocaine offenses. Someone possessing as little as five grams of the drug (about the weight of a sugar packet) would face a minimum of five years in prison. That threshold was significantly harsher than the mandatory penalty for powder cocaine, which required a sale of 500 grams of the drug (a little over a pound) to receive the same penalty. Since 80% of crack cocaine prosecutions were brought against African Americans, the racial disparities from these sentencing policies were particularly extreme.
Momentum for reforming the crack cocaine mandatory minimum laws predated the Obama administration, and had growing bipartisan support when the President took office. The President signed the Fair Sentencing Act into law in 2010, reducing sentencing severity in a substantial number of crack cases. Then in 2013, Attorney General Eric Holder issued a memorandum to federal prosecutors calling on them to avoid seeking mandatory prison terms in low-level drug cases, which has cut the number of cases with such charges by 25%.
While the changes in sentencing laws have helped to reduce the federal prison population, the highest profile of Obama’s reforms is his use of executive clemency to reduce excessively harsh drug sentences. That is a story of both politics and policy. During Obama’s first term he used his clemency power far less than his predecessors — a pattern that was sharply criticized by many reform groups and editorial boards. But after launching a “clemency initiative” in 2014, the President has commuted the drug sentences of more than 1,100 individuals (with promises of substantially more by the time he leaves office). Notably, in about a third of these cases, the individuals had been sentenced to life without parole due to mandatory sentencing policies....
Perhaps the most significant aspect of President Obama’s work in regard to criminal justice reform has been his role in changing the way we talk about the issue. After a disappointing first term in which these issues received only modest attention, Obama’s last years in office framed criminal justice reform as a top priority. Among a series of high-profile events during his second term was the President’s address on mass incarceration at the NAACP national convention, at which he concluded that “mass incarceration makes our country worse off.”
Mass incarceration did not come about because there is a shortage of ideas for better approaches to public safety — it was the result of a toxic political environment where legislators favored political soundbites over evidence. By using the bully pulpit to frame justice reform as a major issue, Obama provided some coverage for mainstream legislators to support sound policy options.
It is difficult to be optimistic that the incoming administration will look favorably on criminal justice reform. Leading Republicans, such as House Speaker Paul Ryan, may be persuasive in making the conservative argument for reform. But President-elect Trump’s “tough on crime” rhetoric, which paints many incarcerated people as “bad dudes,” suggests progress at the federal level will be a challenge. Realistically, opportunities for justice reform are more likely at the state level. Many local officials are already convinced of the need for sentencing reform and reentry initiatives, and they may be less influenced by the political climate in Washington. If so, such changes at the local level may ultimately gain traction in a Trump White House as well.
1. The first line emphasized above makes me extra crazy because it falsely portrays Prez Obama as a bold leader who used the bully pulpit in order to provide "coverage for mainstream legislators to support sound policy options." This could not be more backwards: Prez Obama was a timid and disappointing follower here, as his July 2015 NAACP speech about the need for reform came only AFTER "mainstream" politicians ranging from Rand Paul to Corey Booker, from Ted Cruz to Patrick Leahy, from Rick Perry to Deval Patrick, from Bobby Jindal to Jim Webb, from Chuck Grassley to Dick Durbin, from Jim Sensenbrenner to Bobby Scott, from Raul Labrador to Elijah Cummings, from Judy Chu to Mia Love, from Newt Gingrich to even Chris Christie had all spoken in some significant ways about the need for significant criminal justice reform and especially sentencing reform (and I am sure I am leaving out many others).
2. The second line emphasized above makes me crazy for more "inside baseball" reasons: given that this commentary makes much of the "egregious" crack/powder cocaine sentencing policies that were only partially fixed by the FSA, the commentary ought to take a moment to note that Prez-Elect Trump has nominated as Attorney General the most prominent and vocal GOP Senator who was complaining loudly about the 100-1 crack/powder laws before doing so was popular or comment. As noted in this post and recently reported by the Wall Street Journal, " Mr. Sessions was for years Congress’s most avid supporter of cutting the disparity between sentences for crack and powder cocaine, at a time when other lawmakers were loath to be seen as soft on crime."
I really respect so much of the work Marc Mauer does in his commentary and through The Sentencing Project, but these troublesome statements reflect what I am seeing as the worst tendencies of the "commentariat class" since the election. Specifically, even though Prez Obama's record on sentencing reform is relatively unimpressive (especially as compared to his record on lots of other issues), many on the left seem eager to assert that Prez Obama really achieved a lot in this arena and then go on to gnash teeth about reform momentum being halted now that there is a new sheriff in town. This narrative entirely misses, in my opinion, not only (a) the reality that Prez Obama himself retarded reform momentum in many ways (e.g., by getting such a late start on clemency, by resisting mens rea reforms that could have been included in bipartisan sentencing reform bills), but also (b) the (significant?) possibility that many GOP leaders in Congress who have actively promoted and worked hard on federal sentencing reform bills will keep up that work in the years to come.
December 21, 2016 in Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Scope of Imprisonment, Who Sentences? | Permalink | Comments (17)
Tuesday, December 20, 2016
"Wisconsin Sentencing in the Tough-on-Crime Era: How Judges Retained Power and Why Mass Incarceration Happened Anyway"
The title of this post is the title of this new book by my FSR colleague and LawProf Michael O’Hear. For sentencing fans, this new book would surely make a great stocking stuffer, as this text from the publisher's website suggests:
The dramatic increase in U.S. prison populations since the 1970s is often blamed on the mandatory sentencing required by “three strikes” laws and other punitive crime bills. Michael M. O’Hear shows that the blame is actually not so easy to assign. His meticulous analysis of incarceration in Wisconsin — a state where judges have considerable discretion in sentencing — shows that the prison population has ballooned anyway, increasing nearly tenfold over forty years.
O’Hear tracks the effects of sentencing laws and politics in Wisconsin from the eve of the imprisonment boom in 1970 up to the 2010s. Drawing on archival research, original public-opinion polling, and interviews with dozens of key policymakers, he reveals important dimensions that have been missed by others. He draws out lessons from the Wisconsin experience for the U.S. as a whole, where mass incarceration has cost taxpayers billions of dollars and caused untold misery to millions of inmates and their families.
“Serious students of modern sentencing reforms — as well as everyone eager to understand the roots of, and potential responses to, modern mass incarceration — must have this book on their reading list. O’Hear thoroughly canvasses the dynamic story of Wisconsin’s uniquely important sentencing reform history.”
—Douglas Berman, author of the Sentencing Law and Policy Blog
“Fascinating political and social history. O’Hear puts national criminal justice trends into a single-state frame, providing much sharper insights than often come from trying to look at the entirety of this very big country. This is first-rate work.”
—Frank O. Bowman III, University of Missouri School of Law
Monday, December 19, 2016
"Mass incarceration and children’s outcomes: Criminal justice policy is education policy"
The title of this post is the title of this intriguing report released late last week by the Economic Policy Institute (EPI). This press release from EPI provide a kind of report summary under the heading "Mass incarceration contributes significantly to the racial achievement gap," and here is its text:
In Mass incarceration and children’s outcomes, EPI research associates Leila Morsy and Richard Rothstein outline the connections between mass incarceration and racial achievement gaps. There is overwhelming evidence that having an incarcerated parent leads to an array of cognitive and noncognitive outcomes known to affect children’s performance in school. Independent of other social and economic characteristics, children of incarcerated parents are more likely to misbehave in school, drop out of school, develop learning disabilities, experience homelessness, or suffer from conditions such as migraines, asthma, high cholesterol, depression, anxiety, and post-traumatic stress disorder.
“Simply put, criminal justice policy is education policy,” said Morsy. “It is impossible to disentangle the racial achievement gap from the extraordinary rise in incarceration in the United States. Education policymakers, educators, and advocates should pay greater attention to the mass incarceration of young African Americans.”
African American children are six times as likely as white children to have a parent who is or has been incarcerated. One-in-four African American students have a parent who is or has been incarcerated, and as many as one-in-ten have a parent who is currently incarcerated. Because African American children are disproportionately likely to have had an incarcerated parent, the authors argue, the United States’ history of mass incarceration has contributed significantly to gaps in achievement between African American and white students.
“Despite increased national interest in criminal justice reform, President-elect Trump has promised to move in the opposite direction by advocating for a nationwide “stop-and-frisk” program,” said Rothstein. “While the chance of reform on a federal level may have stalled, advocates should look for opportunities for reform at the state and local levels, because many more parents are incarcerated in state than in federal prisons.”
The authors advocate for a number of policies to address this problem by reducing incarceration, including eliminating disparities between minimum sentences for possession of crack versus powder cocaine, repealing mandatory minimum sentences for minor drug offenses and other nonviolent crimes, and increasing funding for social, educational, and employment programs for released offenders.
Thursday, December 15, 2016
Interesting review of impact of Prop 47 on drug cases and offenders in California
This lengthy local article takes a remarkable and effective deep dive into the impact and import of California's Prop 47 two years after its passage. The piece carries a lengthy headline that serves as a kind of summary: "Two years after Prop 47, addicts walk free with nowhere to go: In 2014, California Voters Freed About 13,500 Low-Level Offenders From Crowded Prisons and Jails. But Many Ex-inmates Have Traded Incarceration for a Cycle of Homelessness, Drug Abuse and Petty Crime." Here are excerpts:
Two years after it was approved by California voters, Prop 47 has scaled back mass incarceration of drug addicts, but successful reform is woefully incomplete. Proponents celebrate how the law freed at least 13,500 inmates like Lopez from harsh sentences in crowded prisons and jails, but Prop 47 has done little to help these people restart their lives. Instead, the unprecedented release of inmates has exposed the limits of California’s neglected social service programs: Thousands of addicts and mentally ill people have traded a life behind bars for a churning cycle of homelessness, substance abuse and petty crime.
Prop 47 earmarked millions saved in prison costs for inmate rehabilitation, but not a penny has been spent. Meanwhile, the state’s shortage of treatment programs is more glaring than ever. Expanding rehab would be expensive, but it is still a cheaper, more effective and more humane strategy for addressing addiction than locking drug abusers in prison.
"The problem is, if you don’t actually do anything to change conditions of their lives, they’re going to be back on the streets anyway," said Elliot Currie, a University of California, Irvine criminologist. "What’s to prevent them from going back to the same old ways when they get out? The answer is nothing."
This alarming lack of support services is one key finding in a landmark investigation by USA TODAY Network-California journalists who spent seven months analyzing the impacts of Prop 47, a sweeping criminal justice reform law that has been debated and demonized but rarely understood. To uncover the ramifications of the law, reporters from four publications — The Desert Sun, The Ventura County Star, The Record Searchlight and The Salinas Californian — filed 65 records requests, scrutinized thousands of pages of public documents and performed over 50 interviews with policymakers, academics, police, district attorneys, public defenders, drug addicts and former felons. Among our findings:
California police have dramatically deprioritized drug busts in the wake of Prop 47, arresting and citing about 22,000 fewer people in 2015, a 9.5 percent decrease in the first year since the possession of meth, heroin and cocaine was downgraded to a misdemeanor.
Nearly 200,000 felony convictions have been retroactively erased by Prop 47 as of September, according to a first-ever analysis. Government agencies were not required to track how many convictions were reduced, so journalists gathered public records from 21 counties to calculate a statewide estimate. Many former felons will be slow to take advantage of their restored rights because they are unaware their convictions have been downgraded.
For those who are aware, however, Prop 47 offers an unparalleled chance for better jobs. Tens of thousands of people no longer have to report felony convictions on job applications, making them drastically more employable than they’ve been in years or decades.
Michael Romano, a Stanford law expert who helped write Prop 47, stressed in a recent interview the law has been "amazingly successful" in its primary goal, which was always to get low-level drug offenders out of California’s crowded, damaging prison system. But tackling drug addiction and mental illness, which plague so many who were released under the law, is a task that will require investing hundreds of millions of dollars in community treatment programs across the state. "It is incumbent on local governments to engage this problem," Romano said. "Prop 47 was not a cure-all. It’s not a panacea. It is one piece in an extraordinarily complicated puzzle — perhaps the most complicated puzzle in our communities."
"Repurposing: New Beginnings for Closed Prisons"
The title of this post is the title of this new Sentencing Project policy brief, which gets started this way:
Since 2011, at least 22 states have closed or announced closures for 92 state prisons and juvenile facilities, resulting in the elimination of over 48,000 state prison beds and an estimated cost savings of over $333 million. The opportunity to downsize prison bed space has been brought about by declines in state prison populations as well as increasing challenges of managing older facilities. Reduced capacity has created the opportunity to repurpose closed prisons for a range of uses outside of the correctional system, including a movie studio, a distillery, and urban redevelopment.
The U.S. prison population numbered 1,508,636 at year end 2014 — a reduction of approximately 1% since 2013. Thirty-nine states have experienced a decline since reaching their peak prison populations within the past 15 years; in most states this reduction has been relatively modest. Four states — New Jersey, New York, Rhode Island, and California – have reduced their prison populations by over 20%. Southern states like Mississippi and South Carolina have reduced their prison populations by 18% and 11% respectively. The political environment shaping criminal justice policy has been moving in a direction emphasizing evidence-based approaches to public safety for more than a decade. This has involved efforts to address the unprecedented growth and correctional costs resulting from several decades of policy initiatives.
In recent years, 29 states adopted reforms that scaled back the scope and severity of their mandatory sentencing policies. Voters in California approved ballot initiatives in 2012 and 2016; the former curbed the state’s notoriously broad “three strikes and you’re out” law and the latter expanded parole eligibility and limits the process governing juveniles tried as adults. California and Oklahoma voters also authorized reclassifying certain felonies as misdemeanors. In other states, policymakers have become increasingly supportive of initiatives that reduce parole revocations, establish treatment courts, and divert prison bound defendants through alternatives to incarceration.
Declines in state prison populations and the shifting politics underlying incarceration have created an opportunity to downsize prison bed space for a range of reasons, including excess capacity and the challenge of managing older facilities.
Wednesday, December 14, 2016
"Why All Americans Should Go To Prison: Out of sight, out of mind isn’t good enough."
The title of this post is the extended headline of this new Ozy commentary. Here are is how it starts and ends:
Americans love their prison entertainment. How could they not lap up the best moments of Orange Is the New Black, what with the lesbianness and the realness … the prison wars, the guards’ criminality, the racial commentary and, um, the lesbianness.
Sure, it feels authentic, but how would the audience know? Safe to say that few of OITNB’s millions of fans have spent even a moment in a lockup — although probably half are engaged in the illicit sharing of Netflix passwords. Remote and security-sensitive, prisons aren’t exactly accessible to the general public. States consider visits a privilege, doled out for the incarcerateds’ good behavior. To enter, one must be on the prisoners’ approved visitor list or in an organized volunteer program. Even the Supreme Court has come down in favor of strict visitation policies.
This is wrongheaded. We believe every American should be required to visit a prison. After all, some two million of their fellow citizens are incarcerated — that’s almost 1 percent of the population. For the most part, those on the outside ignore this significant minority: Inmates don’t much figure into discussions about policy, which is one reason it took decades for politicians to start dismantling mass-incarceration policies that had long ago been deemed expensive and ineffective.
Isn’t it weird that the first sitting president to visit a federal prison was … Barack Obama, in the last year of his second term? While there, he was surprised to discover that three fully grown men were housed in a minuscule 9 x 12 cell.
The idea of mandatory prison visits isn’t ours; law professor Neal Katyal tweeted about it this fall. “The bottom line is, until you experience it and understand the total disconnect between life inside and life outside, it’s really hard to understand who you want to punish and how,” Professor Katyal told us on the phone....
Katyal tells of one Iowa judge who visits every single prisoner he puts behind bars to see how they’re doing. Instead of mandatory minimums, how about mandatory visits from all?
I have been to a handful of prisons to visit clients over the last two decades (and I also got to tour a local jail as part of serving on a grand jury). But I often think I ought to make more of a habit of visiting active prisons and jails, especially because I often go out of my way to tour famous old prisons (e.g., Eastern State, Alcatraz, Moundsville) whenever my travels allow it.
Remarkably, and usefully for those unlikely to be able to head right now to any nearby graybar hotel, this lead piece this morning from The Marshall Project is headlined "Let’s Go to Prison!: A national field trip to Incarceration Nation, under the shadow of Donald Trump." The lengthy article does not substitute for a prison visit, but it highlights a project by the Vera Institute of Justice very much in the spirit of the Ozy commentary. Here is a passage providing the backstory:
[Last month brought] the Vera Institute of Justice's "National Prison Visiting Week." Through a series of field trips to 29 facilities in 17 states, Vera welcomed a diverse array of community members — from bankers to prosecutors to real estate agents to teachers, doctors, and clergy — into Incarceration Nation. The goal was to promote the value of transparency: to demonstrate that if corrections officials allowed people in, the sky wouldn't fall. In the process, the organizers hoped, both staff and visitors would engage in a "re-imagining" of the very purpose of a prison: Is it punishment? Incapacitation? Deterrence? Rehabilitation?
The event was conceived during the administration of the first president ever to visit a federal prison, and in anticipation of a next president who had vowed she would reform criminal justice “from end-to-end.” So the election of Donald J. Trump, less than a week earlier, left many participants wondering whether this field trip would still be the new beginning that was intended, or rather a last gasp of idealism about reform.
Tuesday, December 13, 2016
Vice series takes close look from multiple perspectives at "The Future of Imprisonment"
The media outlet Vice has a big collection of article that should be of interest to sentencing fans assembled here under the heading "THE FUTURE OF INCARCERATION: Exploring what's next for criminal justice reform in America." Here are links and the full headlines for just some of the interesting-looking pieces that are part of the series:
A deep look into Alabama's new sentencing systems and their impacts
Because our next Attorney General (and perhaps also our next Supreme Court justice) emerged from and still have roots in the Alabama legal system, I thought it timely and valuable to spotlight this lengthy local article about Alabama sentencing reforms headlined "How has prison reform impacted Alabama?" Here are excerpts:
The criminal justice system has historically relied on human judgment for sentencing, but Alabama’s recent criminal justice reforms are attempting to equate human error to a quantifiable number. Crimes now equal a score that effectively decides an offender’s punishment. A similar score sheet labels parolees as high, medium or low risk.
Alabama is a bit of a trendsetter — for better or for worse — on the criminal justice front, said Bennet Wright, executive director of the Alabama Sentencing Commission tasked with both implementing the 2013 and 2015 reforms as well as crunching the data. “With the passage of the 2015 reforms, I think you’re seeing Alabama acknowledge for the first time that data driven decisions need to be the driving force of all criminal justice policy,” Wright said. “That’s a huge shift in policy. Obviously that’s not something everybody will jump on board with, but I think it’s important to make decisions, particularly ones that have huge price tags attached to them, to much more of a data driven process.”
The reforms are not without controversy. Attorneys remain critical of the sentencing guidelines, and judges are split on whether or not the score sheets rob them of their ability to adjudicate, but the reforms have shown promising returns in popping the balloon on Alabama’s prison population and the data collected over the next few years could continue to spur progressive criminal reform.
The two-pronged reform began with the implementation of presumptive sentencing guidelines in 2013 that essentially reduced sentencing decisions to a score sheet in an effort to be more selective and consistent about who gets locked away. For drug offenses, eight or more points — perhaps a distribution of marijuana charge (6 points) and a possession with intent to distribute charge (5 points) — will land that person in prison barring mitigating factors. For property crimes, 15 points is required for a prison sentence. Both sheets also add points for prior adult convictions, incarcerations, probation revocations and juvenile delinquencies, but the idea was — and still is — to send fewer non-violent offenders to prison to relieve the burden on a prison system that, at the time the guidelines were implemented, housed nearly twice the inmate population (25,299) than it was designed for (13,318).
The guidelines also made sentencing consistent across the state. A possession of marijuana charge, for instance, no longer relies on the presiding judge’s views of the drug. “Some judges are heavy on possession of marijuana. They detest it and (before the guidelines) would give harsher sentences than other judges would,” said former Montgomery County Circuit Judge William Shashy who retired this past month.
The 2015 prison reform, also known as Senate Bill 67 sponsored by Sen. Cam Ward, R-Alabaster, focused more on fighting the bloated prison system. A new class of felony, Class D, was created for sentencing guidelines to include non-violent offenses such as minor drug possession and third-degree theft. Those crimes now carry the lowest point totals as legislators are more concerned with locking up violent offenders. “They’re focused on felony offenses the Alabama Legislature has deemed non-violent. Mostly drug and property offenses,” Wright said.
If fewer non-violent offenders are going to prison, more are naturally going to parole and probation. The bill accounted for that by injecting funding into the state parole system to hire 100 more parole officers. Darrell Morgan, assistant executive director of the Board of Pardons and Paroles, said they have hired 71 additional parole officers as of the end of October. Seventeen more are currently being interviewed, and Morgan said more officers will be added using their general fund in an effort to reduce parole officers’ caseloads. “When this began we were around 200 cases per officer. Our target is to have everybody down to 100 offenders per officer by the end of the fiscal year (Sept. 30),” Morgan said. “That was one of the biggest issues with previous parole boards was we didn’t have the adequate staff. Now that these numbers have increased we’re able to better manage our caseloads and we can manage more people.”...
Montgomery County Deputy District Attorney Ben McGough said the sheets and implementation of Class D felonies have incentivized crime and taken the teeth out of the justice system. “When a defendant looks at their sheet and their score is two and it takes 15 to go to prison, they’re guaranteed from the beginning. You’re not going to prison no matter what happens,” McGough said. “Then they look at the sheet and think, ‘I’ve got 13 points to burn.’ they can look at the sheet, do the math, and think, ‘I can do four more non-violent offenses before the judge even has the option to send me to prison.’ And we’re literally giving them the figures.”
On the defense side, Public Defender’s Office Director Aliya McKee said the sheets reduce her clients to a figure instead of treating each case as a unique situation. “Our clients, from my perspective, get reduced to a number,” McKee said. “I’m somewhat comfortable with that being the starting point, but it’s not the solution. We want the court to see the person behind the charge. The name, not the case number.”...
As judges and attorneys feel their way through the reforms, all eyes are keen to judge what impact reforms have had on key statistics such as prison population, crime rate, parole caseload and recidivism. It’s still too soon to make definitive claims, but Wright said some early data returns are promising. State prison population, for example, has dropped from 25,299 in 2013 (189.9 percent capacity) to 23,318 this year (175 percent). “I think the initial results of the presumptive sentencing standards are promising,” Wright said. There has been a steady decrease in the prison population averaging 80-100 fewer inmates per month.”
State crime rate has also dropped during the period going from nearly 174,000 total crimes in 2013 (about 3,586 crimes per 100,000 people) to just over 162,000 this year, however, that rate was already falling from 191,318 in 2011 and 181,752 in 2012, according to Alabama Law Enforcement Agency.
Parole caseload has also begun to dip slightly. Morgan said it took longer than expected to hire new officers but active caseload is down to about 145 cases per officer. When adding inactive cases, that decline looks much smaller (about 215 per officer to about 195), but Morgan said the reform has had a noticeable impact. “(Adding inactive cases) makes the numbers still look high, but the hiring of the officers have gotten our active caseload down to a manageable level, which is lower than it was. But we still have to hire more people,” Morgan said....
On a local level, one particular statistic has the District Attorney’s Office concerned that the guidelines may be doing more harm than good for public safety. Montgomery has seen 530 more thefts this year than last year, and many in the DA’s office, including Chief Deputy District Attorney Lloria James, see the lenient sentencing guidelines as the blame.
“Those statistics don’t surprise us at all. It’s almost like a revolving door,” James said. “The problem is sort of like word travels fast on a college campus or neighborhood or things like that, in the criminal community word travels fast, and I think it’s gotten out there that pretty much if it’s non-violent — thefts, burglaries things like that — there’s almost zero chance you’re going to see some prison time, so it’s worth it to them.”
Whether or not there is a connection remains up for debate, but that hasn’t stopped District Attorney Daryl Bailey from reaching out to Sen. Ward in recent weeks about possibly making some changes. “We’ll continue looking at it, but we’ve done a lot of reform already,” Ward said. “Obviously that’s a point being made by the district attorneys, but if there's any changes needed to be made in the guidelines we need to do that. We need to make sure it's prudent for the safety of the public.”
The reforms have shown themselves not to be perfect, but Wright said that should engender further study and support in his ideal scenario. The reforms were put in place after studying prison reform in other Republican states such as Texas and North Carolina, but implementing front-to-back change is “trendsetting,” Wright said.
For now, the state must wait and see what the numbers hold. “It’s a little daunting, but that’s trendsetting to have this big of a process going on at one time,” Wright said. “That’s also why I tell people both for it and against it to take a deep breath and let’s do our best to implement it. I think with a lot of things, people get in the way of things before they implement it. We owe it to ourselves to embrace what the Legislature passed and what the intent was. Let’s give it our best good faith effort, wait a while and then sit around the table and talk about it then.”
Monday, December 12, 2016
"Trump should reform criminal justice system to foster economic growth"
The title of this post is the headline of this new commentary published in The Hill and authored by Eric Sterling, who is now the executive director of the Criminal Justice Policy Foundation and long ago was counsel to the U.S. House Judiciary Committee. Here are excerpts:
President-elect Trump has expressed a commitment to fostering economic growth and preserving American jobs. In that pursuit, he would be well advised to work towards reforming the criminal justice system. If he embraced a bankruptcy-like program to restore clean criminal records to the millions of Americans who have not been in trouble for many years, he could generate hundreds of thousands jobs – many more than were saved by his intervention and promises to Carrier and United Technologies.
One of the first measures of any economy is employment and job growth. Surprisingly (and unbeknownst to most politicians), our criminal justice system, and its focus on punishment instead of prevention, is one of the biggest drags on our economy because its long-term impact on employment. Once you have a criminal conviction, your ability to get a job is slashed for the rest of your life. If you can get a job, it is likely be “off-the-books.” One Department of Justice study estimated that the average wage loss is 50 percent.
The Bureau of Justice Statistics reported a decade ago that about 68 million Americans have a criminal record. Many of these records are not convictions, but some estimate that about one-third of American working age adults have a criminal conviction.
More than two-thirds of the U.S. gross domestic product is based on the activity of consumers. Cumulatively, the "under-earning" by perhaps one-third of American consumers means lost purchases of everything that every American company makes and sells. Imagine how many Americans could get a mortgage and buy a home if millions of Americans no longer had a criminal record (and imagine how many new Carrier furnaces and air conditioners would be sold and installed).
We have a prison population of 1.8 million (that excludes the jail and juvenile detention populations). In 1970, that number was about .25 million. We know that none of the men and women in prison bought a Ford or Chevrolet last year. We also know that most of those in prison are not there for violent offenses. If they were home – yes, with their liberty restricted, and under supervision – they could work, and many of them would need and could buy a car....
Imagine what the Social Security trust fund would like if millions more American men and women were working, instead of in prison or unemployed or underemployed. Trump should direct his economic team to fully calculate the large-scale economic benefits of smart on crime justice reform.
Trump is proud of his mastery of bankruptcy laws. A criminal record clean slate law is like a bankruptcy. Instead of wiping your financial debts away, such a law would wipe away your criminal record after five or seven years of verifiable good conduct. Bankruptcy, which is in the Constitution, is a useful model for rebuilding the records of formerly convicted persons to re-enter the economy by the millions and help build economic growth for all Americans.
December 12, 2016 in Criminal justice in the Trump Administration, Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (0)
Friday, December 09, 2016
"How Many Americans Are Unnecessarily Incarcerated?"
The question in the title of this post is the title of this notable new report from The Brennan Center. The report's preface serves as a useful overview of its coverage and findings, and here are extended excerpts from the preface:
While mass incarceration has emerged as an urgent national issue to be addressed, the reforms currently offered are dwarfed by the scale of the problem. The country needs bolder solutions. How can we significantly cut the prison population while still keeping the country safe? This report puts forth one answer to that question. Our path forward is not offered as the only answer or as an absolute. Rather, it is meant to provide a starting point for a broader discussion about how the country can rethink and revamp the outdated sentencing edifice of the last four decades.
This report is the product of three years of research conducted by one of the nation’s leading criminologists, experienced criminal justice lawyers, and statistical researchers. First, we conducted an in-depth examination of the federal and state criminal codes, as well as the convictions and sentences of the nationwide prison population (1.46 million prisoners serving time for 370 different crime categories) to estimate how many people are currently incarcerated without a sufficient public safety rationale. We find that alternatives to incarceration are more effective and just penalties for many lower-level crimes. We also find that prison sentences can safely be shortened for a discrete set of more serious crimes.
Second, based on these findings, we propose a new, alternative framework for sentencing grounded in the science of public safety and rehabilitation. Many have argued that regimented sentencing laws should be eliminated and replaced with broad judicial discretion. Others counter that this would reinstate a system wherein judges are free to deliver vastly divergent sentences for the same crime, potentially exacerbating racial disparities and perpetuating the tradition of harsh sentences. This report proposes a new solution, building on these past proposals. We advocate that today’s sentencing laws should change to provide default sentences that are proportional to the specific crime.
Many have argued that regimented sentencing laws should be eliminated and replaced with broad judicial discretion. Others counter that this would reinstate a system wherein judges are free to deliver vastly divergent sentences for the same crime, potentially exacerbating racial disparities and perpetuating the tradition of harsh sentences.
This report proposes a new solution, building on these past proposals. We advocate that today’s sentencing laws should change to provide default sentences that are proportional to the specific crime committed and in line with social science research, instead of based on conjecture. These defaults should mandate sentences of alternatives to incarceration for lower-level crimes. For some other crimes that warrant incarceration, they should mandate shorter sentences. Judges should have discretion to depart from these defaults in special circumstances, such as a defendant’s criminal history, mental health or addiction issues, or specifics of the crime committed. This approach is grounded in the premise that the first principle of 21st century sentencing should be to protect public safety, and that sentences should levy the most effective, proportional, and cost-efficient sanction to achieve that goal. It aims to create more uniform sentences and reduce disparities, while preserving judicial discretion when needed....
Based on these findings, this report issues the following recommendations to safely reduce the prison population....
Eliminate Prison for Lower-Level Crimes Barring Exceptional Circumstances: State legislatures and Congress should change sentencing laws to mandate alternatives to prison as the default sentences for certain lower-level crimes. These include drug possession, lesser burglary, minor drug trafficking, minor fraud or forgery, minor theft, and simple assault — offenses that now account for 25 percent of the prison population. Alternative sanctions — such as community service, electronic monitoring, probation, restitution, or treatment — should be the default for such crimes instead. Judges should have flexibility to depart and impose a prison sentence if certain enumerated factors are present — for example, repeat serious offenses or heinous circumstances of the crime.
Reduce Sentence Minimums and Maximums by Law: State and federal legislatures should reduce the current minimums and maximums prison stays set by laws, or guidelines. These ranges should be proportional to the crimes committed, with judges retaining discretion to depart when appropriate. We recommend that legislators consider a 25 percent cut as a starting point to determine how to reduce sentences for the six major crimes that make up the bulk of the current prison population: aggravated assault, murder, nonviolent weapons offense, robbery, serious burglary, and serious drug trafficking. Sentences would be shorter, but still substantial. For example, the average inmate convicted of robbery now serves 4.2 years. A 25 percent cut would reduce the prison stay to 3.1 years. A similar analysis can be applied to other crimes for which prison may be warranted to determine whether sentences can be safely shortened.
Retroactively Apply Reforms: Current inmates should be permitted to petition judges for retroactive application of the two reforms above, on a case-by-case basis. This would allow for safe release of prisoners whose sentences no longer serve a justifiable public safety purpose.
Complementary Recommendations: Prosecutors should use their discretion to seek alternatives to incarceration or shorter prison stays in line with the recommendations of this report. Further, the nearly $200 billion in savings from implementing this report’s recommendations can be reinvested in proven crime prevention tactics and in alternatives to incarceration proven to reduce recidivism. While the first steps many states have taken toward prison reform are welcome, they have not gone far enough. It took roughly four decades to build mass incarceration. Yet, at current rates of decline, it will take even longer to undo it.
Tuesday, December 06, 2016
"The Link Between Race and Solitary Confinement: Men of color are overrepresented in isolation, while whites are typically underrepresented."
The title of this post is the full headline of this new Atlantic piece. Here is how it gets started (with links from the original):
Stark disparities in prisoners’ treatment are embedded into criminal-justice systems at the city, county, state, and federal levels, and have disproportionate, negative effects on men of color. A new analysis from the Association of State Correctional Administrators and Yale Law School provides a fresh trove of information with which to explore the racial dynamics in state and federal prisons — specifically through their findings on solitary confinement.
“People of color are overrepresented in solitary confinement compared to the general prison population,” said Judith Resnik, a professor at Yale Law School and one of the study’s authors. “In theory, if race wasn’t a variable, you wouldn’t see that kind of variation. You worry. It gives you a cause to worry.”
The study concluded that, overall, black male prisoners made up 40 percent of the total prison population in those 43 jurisdictions, but constituted 45 percent of the “restricted housing population,” another way to describe those in solitary confinement. In 31 of the 43, the percentage of black men who spent time in solitary wasn’t proportional to their slice of the general population — it was greater. Latinos were also disproportionately represented in solitary: On the whole, 21 percent of inmates in confinement were Latino, even though this group constituted only 20 percent of the total population. Overall, in 22 of the 43 jurisdictions, Latinos were overrepresented in relation to their general-population numbers.
At the same time, figures for white inmates were largely inverse, with 36 of the 43 jurisdictions reporting that whites were underrepresented in solitary. (Women prisoners also undergo solitary confinement, though not as frequently as their male counterparts; this article focuses on the men’s data.)
The numbers look slightly different at the state level. In some states, the racial makeup of prisons and their solitary-confinement populations appeared more balanced — like in Kentucky, where white prisoners made up 70 percent of both the general and restricted-housing populations. Black prisoners represented 28 percent of those imprisoned and 27 percent of those in solitary. The dynamic is similar in the District of Columbia, with whites representing 2 percent of both the general and solitary-confinement populations, and blacks representing 90 percent and 94 percent of those groups, respectively.
By and large, similarly aligned figures can be found throughout the country. But in some states, the racial disproportions are startling.
For example, in a handful of states where Latinos represent a large swath of the overall population, the racial disparities are significant. In California, Latinos made up 42 percent of the general prison population, but 86 percent of those in solitary confinement. Whites, by contrast, were 22 percent of the general population, but only nine percent of those in solitary. And in Texas, Latinos made up 50 percent of those in solitary, but only 34 percent of the overall prison population. Yet again, whites’ figures were lower: They represented 32 percent of the general prison population, but 25 percent of the population in solitary confinement. Mississippi, too, had dissimilar numbers among the racial groups.
Monday, December 05, 2016
Shining spotlight on ugly dark racial realities of New York State's prison and parole systems
The New York Times has an important new series of articles examining biases in New York State's prison and parole systems. Here are links to and key passages from the first two articles:
A review by The New York Times of tens of thousands of disciplinary cases against inmates in 2015, hundreds of pages of internal reports and three years of parole decisions found that racial disparities were embedded in the prison experience in New York.
In most prisons, blacks and Latinos were disciplined at higher rates than whites — in some cases twice as often, the analysis found. They were also sent to solitary confinement more frequently and for longer durations. At Clinton, a prison near the Canadian border where only one of the 998 guards is African-American, black inmates were nearly four times as likely to be sent to isolation as whites, and they were held there for an average of 125 days, compared with 90 days for whites.
A greater share of black inmates are in prison for violent offenses, and minority inmates are disproportionately younger, factors that could explain why an inmate would be more likely to break prison rules, state officials said. But even after accounting for these elements, the disparities in discipline persisted, The Times found.
The disparities were often greatest for infractions that gave discretion to officers, like disobeying a direct order. In these cases, the officer has a high degree of latitude to determine whether a rule is broken and does not need to produce physical evidence. The disparities were often smaller, according to the Times analysis, for violations that required physical evidence, like possession of contraband.
An analysis by The New York Times of thousands of parole decisions from the past several years found that fewer than one in six black or Hispanic men was released at his first hearing, compared with one in four white men.
It is a disparity that is particularly striking not for the most violent criminals, like rapists and murderers, but for small-time offenders who commit property crimes like stealing a television from a house or shoplifting from Duane Reade — precisely the people many states are now working to keep out of prison in the first place.
Since 2006, white inmates serving two to four years for a single count of third-degree burglary have been released after an average of 803 days, while black inmates served an average of 883 days for the same crime.
Thursday, November 10, 2016
Did death penalty initiatives make it easier for significant prison reforms to pass in California and Oklahoma?
The sets of death penalty initiatives on state ballots this year received lots of attention, and the pro-death-penalty side received lots of voter support in both "red states" like Nebraska and Oklahoma as well as in the in "blue state" of California. (And I am very excited, as previewed here, that tomorrow at Northwestern Law I be part of a symposium that will be seeking to sort out what this means for the future of the death penalty in the US.) But, as Randy Balko notes in this Washington Post piece headlined "Believe it or not, it was a pretty good night for criminal-justice reform," the death penalty outcomes should be looked at in the context of other criminal justice reform measure that also got significant support from voters in both red and blue states. Here are excerpts from his piece with one word highlighted by me for commentary to follow:
The death penalty was on the ballot in three states last night, by way of four separate initiatives. In all of them, the death penalty won.... But it wasn’t just in red states. California voters weighed in on two death penalty initiatives — one to repeal it, and one to speed it up. The former failed, the latter passed. This is a state that Hillary Clinton won by 28 points. Americans still revere the death penalty....
But there was also a lot of good news last night. Marijuana won in 8 of the 9 states in which it was on the ballot — including outright legalization in California, Massachusetts and Nevada. Those states all went blue in the presidential race, but red states Montana, Florida, Arkansas and North Dakota all legalized medicinal marijuana. The lesson here appears to be that pot has finally transcended the culture wars, but the death penalty hasn’t. [My other blog, Marijuana Law, Policy and Reform, is where I obsess on this reality.]
There are a couple of other important reform measures that passed. Ironically, both were in states that strengthened the death penalty. California voters approved Prop 57, which expands parole (as opposed to prison) and time off for good behavior for nonviolent offenses, and lets judges (instead of prosecutors) determine whether juveniles should be tried in adult courts. And in Oklahoma, voters approved of a measure to reclassify certain property and drug possession crimes from felonies to misdemeanors. They also approved a measure that would use the money saved from reclassifying such crimes to fund rehabilitation, mental health treatment and vocational training for inmates. New Mexico voters passed a bail reform measure that, while poorly drafted, at least indicates that there’s an appetite in the electorate for such reforms.
As the question in the title of this post is meant to suggest, I do not think it "ironic" that the very different states of California and Oklahoma with very different voters acted in the same way here. Indeed, I think it quite sensible for voters to be eager to, at the same time while voting, express support for tougher sentencing for the very worst criminals (terrible murderers) and for smarter sentencing for the lesser criminals (nonviolent and drug offenders). I make this point to stress not only that (1) these results make perfect sense to "average" voters at this moment in our national criminal justice discourse, but also that (2) it was practically shrewd for politicians in California and Oklahoma to put prison reforms in front of voters at the same time they were considering death penalty issues.
1. As a matter of political mood, I suspect the "average" voter now is not too troubled by historic problems with the administration of the death penalty, largely because some recent big capital cases involve mass murderer with no concerns about a possible wrongful conviction or terrible defense lawyering. High-profile capital cases like James Holmes (the Aurora movie theater mass murderer), Dzhokhar Tsarnaev (the Boston Marathon bomber) and Dylann Roof (the Charleston Church mass murderer) have all involved crimes in which guilt seems clear beyond any doubt and in which the defendants have had the benefit of spectacular defense lawyers.
At the same time, while the "average" voter is seemingly not keen on taking the death penalty completely off the table for mass murderers like Holmes, Tsarnaev and Roof, she seems to be growing much more keen on reducing reliance on incarceration for nonviolent and drug offenders. National discussions of the expense and inefficacy of the drug war and other concerns about modern mass incarceration has, it seems, made prison reform for certain lower-level offenders politically popular even in a red state like Oklahoma.
2. As a matter of practical realities, especially in a state like California in which "tough on crime" prison initiatives have historically garnered vocal support from law enforcement groups and prosecutors and prison unions, I suspect having a death penalty initiative for the "tough-and-tougher" crowd to focus on created a window of opportunity for supporters of prison reforms to dominate the messaging for voters on "lower salience" issues like expanding parole eligibility or reducing some crimes to misdemeanors. Though I was not in California or Oklahoma to experience their initiative campaigns directly, I know just from reading Crime & Consequences that Kent Schneidegger, a very effective tough-on-crime advocate, was much more focused on Prop 62 and 66 (the capital initiatives in California) than on Prop 57 (the parole initiative that he called "Gov. Brown's Jailbreak Initiative").
November 10, 2016 in Death Penalty Reforms, Marijuana Legalization in the States, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)
Wednesday, November 09, 2016
"Prison stocks are flying on Trump victory"
The title of this post is the headline of this notable new CNBC article, which includes these excerpts:
Private prison stocks soared Wednesday after Republicans won control of Congress and the White House.
Corrections Corporations of America and GEO Group had suffered some of their biggest declines over the last several months. But on Wednesday, both stocks recouped some of those losses. Corrections Corporation gained 43 percent, while GEO climbed more than 21 percent.
In August, the Department of Justice instructed its Bureau of Prisons to begin phasing out the use of private contractors for federal corrections facilities. Both stocks tanked on the news, but analysts called the market reaction overblown, and questioned how feasible it would actually be for the federal government to build new housing for displaced prisoners....
The stocks fell particularly far after presidential candidate Hillary Clinton expressed her support for the moves and her intention to build on them. "I'm glad that we're ending private prisons in the federal system," Clinton had said in her first presidential debate with Donald Trump. "I want to see them ended in the state system. You shouldn't have a profit motivation to fill prison cells with young Americans."
Days after Clinton made her remarks, both stocks posted their worst quarters in more than 15 years. Now that Clinton has lost, and Democrats failed to gain control of Congress, it appears investors are more sanguine about the future of the businesses.
Sentencing reform's (uncertain?) future after huge election wins for Republicans, the death penalty, marijuana reform and state sentencing reforms
It is now official that Republican have retained control of both houses of Congress, and it seems now a near certainty that Donald Trump will soon officially be our nation's President Elect. What that might mean for the future of federal sentencing reform will be the subject of a lot of future posts. For now, I just want to wrap up the story of dynamic state ballot initiatives in the states by spotlighting that they showcase a pretty consistent national criminal justice reform message for all local, state and national officials.
1. The death penalty still has deep and broad support in traditionally conservative states like Nebraska and Oklahoma, and clearly still has majority support even in a deep blue state like California.
4. Recreational marijuana reform has seemingly significant support in blue states after winning this year in California and Massachusetts and Nevada and probably Maine, but in the red state in Arizona it could not garner a majority this year.
Fascinating mixed criminal justice initiative results developing in California
Though a little under 40% of all precincts have been reported, the early results on all the criminal justice reform ballot initiatives in California reported here indicate this fascinating mixed bag of criminal justice reform developments:
Proposition 57 reforming "Criminal Sentences & Juvenile Crime Proceedings" is winning 64% to 36%
Proposition 62 "Repeal of Death Penalty" is losing 45% to 55%
Proposition 64 enacting "Marijuana Legalization" is winning 56% to 44%
Proposition 66 providing for "Death Penalty Procedure Time Limits" is winning 51.5% to 48.5%
In other words, the largest state in our Union has voted again against repealing its death penalty and seems to be voting for a competing reform intended to speed up the path of condemned murderers from death row to the execution chamber. At the same time, this state has enacted via initiative yet another significant reform to its non-capital sentencing system that seems likely to further reduce the state's modern heavy reliance on incarceration. And the state with a huge population and a "local" economy that is of truly global significance will now be fully turning away from the criminalization of recreational marijuana use by adults.
Monday, November 07, 2016
"Extreme Prison Sentences: Legal and Normative Consequences"
The title of this post is the title of this intriguing looking new paper authored by Melissa Hamilton now available via SSRN. Here is the abstract:
The American criminal justice system has an obsession with lengthy prison sentences. From theoretical perspectives, harsh penalties may be justified to retributively punish heinous criminals, to incapacitate dangerous people, and to deter potential wrongdoers. But for a penalty to achieve any of these purposes it must still be proportional to the offense and offender. A disproportionately severe sentence is harmful in being unnecessary and tyrannical in nature.
This Article reports on an empirical study of extreme sentences, which is defined to include sentences of imprisonment of at least 200 years. The author compiled an original dataset of extreme sentences issued in the federal sentencing system. Since the year 2000, federal judges sentenced 55 individuals to prison terms ranging from 200 to 1,590 years. At such a length, these sentences may appear irrational as they are beyond any person’s natural lifespan, particularly as the federal system provides no opportunity for parole. Thus, it may be of interest to understand how and why such extraordinary sanctions came to fruition and to confront the consequences thereof in terms of normalizing extreme prison sentences.
The study undertook quantitative and qualitative analyses of a variety of sources related to the cases in the dataset. The sources included statistical databases, case opinions, governmental press releases, and news reports. The study results revealed that the discourses underlying extremely long sentences generally (a) justified them for the theoretical purposes of retribution, incapacitation, and/or deterrence; (b) approved them on proportionality grounds; (c) regarded the penalties as the practical equivalent of life sentences; (d) represented an exclusionist mindset; (e) relied upon dehumanizing caricatures; and (f) presented with cognitive biases, such as anchoring and scaling effects.
In the end, however, the Article still questions whether the extreme nature of these sentences is rational in any circumstance as they represent penalties that no person can possibly complete. And even if a prison term of at least two centuries may be a proper one, the author posits that such a penalty appears disproportionate for multiple cases in the dataset. At least a few of the defendants, for example, were nonviolent, first-time offenders. Further, the federal judiciary’s acceptance of sentences of these extreme lengths has normative consequences that likely will continue to have a ratchet effect in future cases.
Sunday, November 06, 2016
"Life Without the Possibility of Parole for Juvenile Offenders: Public Sentiments"
The title of this post is the title of this new paper authored by Jennifer Gongola, Daniel Krauss and Nicholas Scurich. Here is the abstract:
The United States Supreme Court recently abolished mandatory life in prison without the possibility of parole (LWOP) for juvenile offenders, holding that the practice was inconsistent with the 8th amendment’s cruel and unusual punishment clause, and its “evolving standards of decency” jurisprudence. The Court explicitly left open the question of whether non-mandatory LWOP is consistent with these constitutional standards.
This paper examines the public’s sentiment concerning juvenile LWOP. An online sample (n = 599) weighted to be representative of the U.S. population was queried about juvenile LWOP as a general policy and in response to a specific case in which they had to impose a prison sentence on a juvenile convicted of murder. The age of the juvenile was experimentally manipulated. Overall, 31% of participants favored juvenile LWOP as a general policy while 55% were willing to impose juvenile LWOP in the specific case presented. The age of the juvenile moderated this effect, such that participants were more willing to impose LWOP on a 16-year-old than a 12-year-old both as a general policy matter and in response to the specific case vignette. A majority of participants were consistent in their preferred punishment across both frames, including 30% who selected LWOP.
Political affiliation was the only demographic variable that predicted consistency in preferred punishment across the two frames. Additionally, participants who consistently endorsed juvenile LWOP placed greater emphasis on retribution and deterrence as goals of punishment while individuals who evidenced inconsistent punishment preferences placed a greater emphasis on rehabilitation.
November 6, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (22)
Thursday, November 03, 2016
"Black Studies and the Fight Against Mass Incarceration"
The title of this post is title of this great public event talking placing in a few weeks on my own campus, which is to begins with a showing of Ava DuVernay’s documentary 13th (previously promoted here) and then includes a terrific-looking panel discussion. Here is the official description:
Join professor and civil rights lawyer Michelle Alexander for a screening of Ava DuVernay’s new documentary 13th, which explores the historical foundations and present-day structures of mass incarceration in the United States. After the film, Alexander will lead a panel discussion addressing the importance of Black Studies both for understanding the origins of systems of racial oppression and acquiring the tools needed to effectively combat them. The panel will feature faculty from the Department of African American and African Studies and the Moritz College of Law as well as student activists and community organizers.
A reception with complimentary food and drink will start at 5 PM in Heirloom Café, and the screening will begin at 6 PM.
A few of many, many prior related posts:
- This weekend's must-watch: 13th, Ava DuVernay's new documentary linking slavery and mass incarceration
- "The New Jim Crow: Mass Incarceration in the Age of Colorblindness"
- "Racial Critiques of Mass Incarceration: Beyond the New Jim Crow"
- Oscar speech by John Legend spotlights the New Jim Crow stat about hyperincarceration of blacks in US
- "The New Jim Crow? Recovering the Progressive Origins of Mass Incarceration"
- NPR's Fresh Air celebrates MLK Day by discussing The New Jim Crow
- Should criminal justice reform be the new civil rights movement?
- After Ferguson, can and should marijuana legalization and drug war reform become a unifying civil rights movement?:
Tuesday, November 01, 2016
"Reducing the Prison Population: Evidence from Pennsylvania"
The title of this post is the title of this new paper authored by Lindsay Bostwick now available via SSRN. Here is the abstract:
Four decades of rapid growth in the US incarceration rate has met with bipartisan support for reforming sentencing policies and calls to reduce the prison population. However, there is little consensus on how to achieve the reductions suggested. In this paper we project how the Pennsylvania prison population and age demographics may change through 2054 as a result of alternative sentencing policies. One consequence of the prison population growth in recent years has been the aging of those incarcerated and these increasingly older populations strain correctional resources for healthcare and other needs.
Our study finds reducing the prison population requires significant changes to the number of people sentenced to prison along with reducing the sentence length of those incarcerated. In particular, to reduce the prison population by a meaningful amount, we will have to reduce admissions to prison to 1980 rates and the sentence lengths for violent offenders to those seen in 1990. A focus on drug and low-level offenses will do little to change the population in the long run.
Is California's parole reform initiative, Prop 57, among the most important and consequential sentencing ballot issues?
The question in the title of this post is prompted in large part by this recent Los Angeles Times article headlined "Why Gov. Jerry Brown is staking so much on overhauling prison parole." Here are excerpts (with my emphasis added for later commentary):
Few California voters likely know much, if anything, about the state Board of Parole Hearings — from the qualifications of the 12 commissioners to their success in opening the prison gates for only those who can safely return to the streets. And yet Gov. Jerry Brown’s sweeping overhaul of prison parole, Proposition 57, is squarely a question of whether those parole officials should be given additional latitude to offer early release to potentially thousands of prisoners over the next few years. “I feel very strongly that this is the correct move,” Brown told The Times in a recent interview. “I’m just saying, let’s have a rational process.”
Prosecutors, though, contend the governor’s proposal goes too far after several years of trimming down California’s prison population to only the most hardened criminals. They believe the parole board, whose members are gubernatorial appointees, already is swinging too far away from being tough on crime. “They are recommending release of people we never would have expected would have occurred so soon,” said Los Angeles County Dist. Atty. Jackie Lacey. “I’m concerned about people who really haven’t served a significant amount of time.”
In some ways, Proposition 57 is a proxy for a larger battle over prison sentences. There are sharp disagreements between Brown and many district attorneys over the legacy of California’s decades-long push for new and longer mandatory sentences, a system in which flexibility is often limited to which crimes a prosecutor seeks to pursue in court. The warring sides have painted the Nov. 8 ballot measure in the starkest of terms, a choice for voters between redemption and real danger. “We’re dealing with deep belief systems,” Brown said.
Proposition 57 would make three significant changes to the state’s criminal justice framework. It would require a judge’s approval before most juvenile defendants could be tried in an adult court — reversing a law approved by California voters in 2000. Critics believe prosecutors have wrongly moved too many juveniles into the adult legal system, missing chances for rehabilitation.
What’s most in dispute are two other Proposition 57 provisions, either of which could result in adult prisoners serving less time than their maximum sentences. Brown tacked those two provisions onto the juvenile justice measure in January. One would allow an expansion of good-behavior credits awarded by prison officials; the other gives new power to the state parole board to allow early release of prisoners whose primary sentences were not for “violent” crimes.
In an interview last week, the governor argued that his ballot measure would add a dose of deliberative thought to a process too often driven by elected district attorneys playing to the white-hot politics of sensational crimes. “Do you want the hurly burly of candidates, running for office, being the decision makers in the face of horrible headlines?” Brown asked. “Or would you rather have a quiet parole board, not now but 10 years later, deciding what's right?”
The governor’s plan, which amends the state constitution, would only allow parole after a prisoner’s primary sentence had been served — applying only to the months or years tacked on for additional crimes or enhancements. And like the current system, a governor could override any parole board decision to release a prisoner.
Critics, though, think the parole board is already too eager to approve releases. Greg Totten, district attorney of Ventura County, said he believes parole board members are judged by how many prisoners they release. “We don't have confidence that the parole board will consider our concerns about public safety or the crime victims' concerns,” Totten said. “Those hearings have become much more adversarial than they originally were.” Totten and other prosecutors warn that an influx of new requests for early release would overload parole board commissioners and send too many cases to their deputy commissioners, state civil servants whose decisions are made outside of public hearings.
Prosecutors and Brown have sparred mightily over the assertion that Proposition 57 would only expand parole opportunities for “nonviolent” felons, a term used prominently in the ballot measure’s official title and summary. In truth, the description only means that new parole opportunities wouldn’t apply to prisoners sentenced for one of 23 defined violent crimes in California’s penal code. That list includes crimes most voters would expect to see there, such as murder, sexual abuse of a child and kidnapping. But in many ways, the list is porous. Not all rape crimes, for example, are designated as “violent.” Prosecutors insist prisoners serving time for as many as 125 serious and dangerous crimes would be eligible for parole under Brown’s ballot measure. Not surprisingly, the campaign opposing Proposition 57 is replete with images of felons who prosecutors allege could be released if the measure becomes law....
Brown, whose effort is supported by probation officers and leads in most every recent statewide public poll, suggests two overarching motivations. One is the specter of potential federal court-ordered prison releases, less likely now that massive prison overcrowding has abated after efforts to reduce penalties for less serious crimes and divert low-level offenders to county jails. Still, the governor insists that Proposition 57 is a more thoughtful way to reduce the prison population than what could some day be chosen by federal judges.
The other, to hear him tell it, is an effort to undo some of what he did in the 1970s in pushing California toward more fixed, inflexible sentences for a variety of crimes. Brown said he now believes that many convicted felons are best judged not at the time of sentencing, but once they have had a chance to change their lives. “It allows flexibility,” the governor said. “I think this case is irrefutable to anyone with an open mind.”
The sentences I have highlighted above provide some account for why I think the Prop 57 vote is potentially so important, and not just in California. If California voters strongly support this parole reform initiative (and do so, perhaps, will also supporting the preservation of the death penalty in the state), elected official in California and perhaps other states may start to feel ever more comfortable that significant non-capital sentencing reforms have significant public support even during a period in which a number of prominent folks are talking a lot about an uptick in crime. It also strikes me as quite significant that Gov Brown is still talking about the impact of the Supreme Court's Plata ruling about California prison overcrowding and justifying his reform efforts on these terms.
I have previously highlighted in this post why I think an Oklahoma ballot initiative on sentencing reform is similarly worth watching very closely. (That post from September was titled "Why Oklahoma is having arguably the most important vote in Campaign 2016 for those concerned about criminal justice reforms.") I expect that next week's post-election coverage of criminal justice issues will focus particularly on the results of big death penalty and marijuana reform votes. But I believe folks distinctly concerned about modern mass incarceration should be sure to examine and reflect upon the outcomes of these two non-capital, non-marijuana reform ballot initiatives in California and Oklahoma.
November 1, 2016 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10)