Tuesday, October 16, 2018

"'Second Looks, Second Chances': Collaborating with Lifers on a Video about Commutation of LWOP Sentences"

The title of this post is the title of this notable new article authored by Regina Austin now available via SSRN. Here is its abstract:

In Pennsylvania, life means life without the possibility of parole (“LWOP”) or “death by incarceration.”  Although executive commutation offers long serving rehabilitated lifers hope of release, in the past 20 years, only 8 commutations have been granted by the state’s governors.  This article describes the collaboration between an organization of incarcerated persons serving LWOP and the law-school-based Penn Program on Documentaries and the Law that produced a video supporting increased commutations for Pennsylvania lifers.  The article details the methodology of collaborative videomaking employed, the strategic decisions over content that were impacted by the politics of commutation, and the contributions of visual criminology to the video’s portrayal of the lifers who participated in the project.

October 16, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Vera Institute of Justice urges "Reimagining Prison"

Download (2)The Vera Institute of Justice has recently produced this big new report as part a big new project under the label "Reimagining Prison." Here is how the report's executive summary gets started:

The United States holds approximately 1.5 million people in its state and federal prisons.  Although this number has declined since its peak in 2009, mass incarceration is hardly a thing of the past.  Even if the nation returned to the incarceration rates it experienced before 1970, more than 300,000 people — approximately one per 1,000 residents— would still be held in U.S. prisons.  And the conditions of that confinement are dismal. Prison in America is a place of severe hardship — a degree of hardship that is largely inconceivable to people who have not seen or experienced it themselves or through a loved one.  It is an institution that causes individual, community, and generational pain and deprivation. For those behind the walls, prison is characterized by social and physical isolation, including severe restriction of personal movement, enforced idleness, insufficient basic care, a loss of meaningful personal contact and the deterioration of family relationships, and the denial of constitutional rights and avenues to justice. Those who work in prisons suffer too, with alarming rates of post-traumatic stress disorder and suicide compared to the general population.

Beyond the walls of prison, incarceration’s impact is broad: mass imprisonment disrupts social networks, distorts social norms, and hollows out citizenship.  Over this country’s long history of using prisons, American values of fairness and justice have been sacrificed to these institutions in the name of securing the common good of public safety.  But the harsh conditions within prisons have been demonstrated neither to ensure safety behind the walls nor to prevent crime and victimization in the community.

The story of American prisons is also a story of racism.  We as a nation have not yet fully grappled with the ways in which prisons — how they have been used, the purposes they serve, who gets sent to them, and people’s experiences inside them — are intimately entwined with the legacy of slavery and generations of racial and social injustice. Built on a system of racist policies and practices that has disproportionately impacted people of color, mass incarceration has decimated the communities and families from which they come. It is time to acknowledge that this country has long used state punishment generally — and incarceration specifically — to subordinate racial and ethnic minorities.

The recent prison incident in South Carolina that left seven dead, as well as prison strikes across the country in 2016 and 2018 protesting inhumane treatment, serve as tragic wake-up calls that something is fundamentally wrong inside America’s prisons.  With a few limited exceptions, correctional practice today remains underpinned by retribution, deterrence, and incapacitation.  These realities beg the question: isn’t there another way? We have failed to ask this question with sufficient seriousness and thoroughness.  The time for us to do so is now.  And so, to take a truly decisive step away from the past, America needs a new set of normative values on which to ground prison policy and practice — values that simultaneously recognize, interrogate, and unravel the persistent connections between racism and this country’s system of punishment.

In this report, the Vera Institute of Justice (Vera) reimagines the how, what, and why of incarceration. And in so doing, we assert a new governing principle: human dignity. This principle dictates that “[e]very human being possesses an intrinsic worth, merely by being human.” It applies to people living in prison as well as the corrections staff who work there.

October 16, 2018 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Friday, October 12, 2018

Noting the latest data on use of solitary confinement in the US

This recent post at Reason, titled "U.S. Prisons Held At Lest 61,000 Inmates in Solitary Confinement Last Year," by C.J. Ciaramella reports on the latest accounting of extreme version of incarceration in the US. I recommend the full post, which starts this way:

The number of U.S. prison inmates held in solitary confinement has dropped over the past five years, according to a new report, but an estimated 61,000 people last year still faced imprisonment in tiny cells for up to 22 hours a day in conditions that many former inmates, mental health professionals, and at least one sitting U.S. Supreme Court justice say amount to torture.

A longitudinal survey co-authored by the Association of State Correctional Administrators (ASCA) and the Arthur Liman Center for Public Interest Law at Yale Law School found that, in the federal prison system and 43 state prison systems that provided data, 49,000 inmates in the fall of 2017 were confined to what is commonly known as "solitary." Extrapolating for the remaining states, the study estimates the total number to be 61,000.

The census asked jurisdictions to report, as of the fall of 2017, both their total prison populations and the number of prisoners held in restrictive housing. It includes federal and state inmates placed in any form of "restricted housing" for at least 22 hours a day for more than 15 consecutive days. In 2011, the United Nations Special Rapporteur on torture concluded that solitary confinement beyond 15 days constituted cruel and inhumane punishment.

The study's authors attribute the reduction to stricter state requirements for when inmates can be sent to solitary and how long they may be kept there. Colorado, for instance, has almost completely eliminated its use of solitary confinement. The Obama administration also banned the use of solitary confinement for juveniles in the federal prison system and limited the amount of time adults can spend in solitary.  "But the picture is not uniform," the ASCA warned in a press release. "In more than two dozen states, the numbers of prisoners in restrictive housing decreased from 2016 to 2018, but in eleven states, the numbers went up."

October 12, 2018 in Data on sentencing, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Tuesday, October 09, 2018

Despite fear-mongering opposition ads, drug sentencing and prison reform initiative polling strong in Ohio

I have blogged here and elsewhere about the interesting and intricate drug sentencing and prison reform initiative on the November 2018 ballot here in Ohio.  Originally called the "Neighborhood Safety, Drug Treatment and Rehabilitation Amendment," the initiative now is just known within Ohio as Issue 1. The Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law has been hosting public panels about Issue 1 under the title Ballot Insights, and has created a Resources Page for Issue 1 and a Commentary Page on Issue 1

I have not previously noted here the notable fear-mongering about Issue 1 that has emerged in recent months focused particularly on its effort to reduce drug possession offenses to misdemeanors and to allow prisoners to earn more time off their prison sentences.  In late August, Ohio Supreme Court Chief Justice Maureen O'Connor wrote a public letter warning of “catastrophic consequences" for Ohio if Issue 1 passes, and last week Gubernatorial candidate Mike DeWine began running a campaign ad involving local sheriffs stating "If you’re not scared [by Issue 1], you should be."  Lots of other judges and prosecutors and law enforcement official have used similar language their advocacy against Issue 1.

But, perhaps signalling just how strong the public supports significant drug sentencing and prison reform, the first big public poll on Issue 1 was released today and it shows the initiative with a nearly 18 point lead.  Here is a basic report on this poll:  

A criminal justice reform question on the Ohio statewide ballot has support from nearly 48 percent of likely voters while 30.5 percent oppose it and 21.7 percent aren’t sure how they’ll vote on the matter, according to a new poll released Tuesday by Baldwin Wallace University Community Research Institute....

The Baldwin Wallace poll, which was conducted Sept. 28 to Oct. 8, shows DeWine has 39.7 percent, Cordray 37.1 percent, Libertarian Travis Irvine has 4.3 percent, Ohio Green Party candidate Constance Gadell-Newton has 3.4 percent and 15.4 percent of voters are undecided. The poll has a margin of error of plus or minus 3.5 percent.

Notably, the full poll results indicate women voters favor Issue 1 by a 22 point margin (49 to 27) and Democrats favor Issue 1 by a 35 point margin (57 to 22). Assuming this poll numbers are solid, this results suggest to be that Issue 1 is quickly likely to pass if it turns out that women and/or Democrats end up being those especially motivated to show up to vote this November.

 Prior related posts:

UPDATE: Another (smaller) poll was released on October 10 concerning Issue 1, and it showed a much closer contest. This press article provides these details:

Ohio voters support a constitutional amendment to reduce penalties for some drug crimes and make other criminal justice reforms, according to a new poll released on the first day of early voting.

Issue 1 has the support of 43 percent of likely midterm voters surveyed in a Suffolk University/Enquirer poll; 38 percent oppose the measure. Nearly one in five said they had not yet decided how to vote....

The poll surveyed 500 likely Ohio voters by landline and cell phone from Oct. 4 to 8. The poll has a margin of error of 4.4 percentage points....

Issue 1 backers didn’t intend for the measure to become partisan but it has become a dividing line in the race for governor. Democrat Rich Cordray supports it as a way to reduce overcrowded prisons and funnel more money toward drug addiction treatment. His Republican opponent, Ohio Attorney General Mike DeWine, has said Issue 1 will allow drug dealers to avoid prison time and lead to more drug overdose deaths.

Among likely Cordray voters, 53 percent said they also support Issue 1 compared to only 33 percent of DeWine voters. 

October 9, 2018 in Drug Offense Sentencing, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

Sunday, October 07, 2018

You be the Illinois judge: what sentence for Jason Van Dyke after second-degree murder conviction in slaying of Laquan McDonald?

Though somewhat eclipsed by Supreme Court confirmation controversies, a high-profile criminal case culminated with a murder conviction on Friday when a jury found Chicago police Officer Jason Van Dyke guilty Friday of second-degree murder in the 2014 shooting of 17-year-old Laquan McDonald.  This CNN article about the verdict details that Van Dyke was also "found guilty of 16 counts of aggravated battery with a firearm [but] found not guilty of official misconduct."  And this AP piece, headlined "With conviction, Van Dyke likely avoided decades behind bars," highlights some of the sentencing realities that attend this verdict:

Jurors convicted Chicago police Officer Jason Van Dyke for murder and aggravated battery in the slaying Laquan McDonald, the black teenager who was shot 16 times as he walked away carrying a knife on Oct. 20, 2014.  But a legal expert explained that the 40-year-old Van Dyke is likely looking at less than 10 years in prison for killing the teen rather than many decades because jurors opted to convict him of second- and not first-degree murder.

After less than two full days deliberating on three weeks of testimony, jurors returned Friday with 17 guilty verdicts and one acquittal. By far the most serious charge Van Dyke faced originally was first-degree murder.  But Judge Vincent Gaughan told jurors before they started deliberations that they had the option of replacing first-degree murder with second-degree murder.

First-degree required a finding that Van Dyke's use of deadly force wasn't justified — that it was both unnecessary and unreasonable.  But Gaughan said jurors could find that Van Dyke truly believed his life was in jeopardy but that that belief wasn't reasonable.  That's the criteria for second-degree murder.

The jury also found Van Dyke guilty of all 16 counts of aggravated battery with a firearm. Each count corresponded to every bullet Van Dyke shot into McDonald. They acquitted him on the least serious charge, official misconduct....

First-degree murder carries a maximum sentence of life imprisonment. And with enhancements for having used a gun, Van Dyke would have faced a mandatory minimum of 45 years, according to Chicago defense attorney Steve Greenberg, who has defended clients at more than 100 murder trials.  Such a sentence, at Van Dyke's age, could have amounted to life.  The punishment for second-degree murder is no less than four years but no more than 20 years behind bars.

Jurors weren't told anything about the range of punishments for each charge. The judge did tell them that whether one charge might carry a greater or lesser sentence shouldn't factor at all into their decisions.

Each count of aggravated battery carries a mandatory minimum six years and a maximum of 30 years in prison. If Van Dyke had to serve six for each of the 16 counts — and do so one sentence after another - that would add up to 96 years. But Greenberg said judges almost always order defendants to serve such sentences simultaneously.  So, if Van Dyke gets the minimum for each count, he'd serve six years for all the battery convictions.

Another possibility is that the defense will ask, under complicated legal rules, for the judge to merge the crimes for which Van Dyke is convicted for sentencing purposes since they were all tied to a single event, Greenberg said.  That could mean Van Dyke is effectively sentenced only for second-degree murder, with its lower four-year mandatory minimum.

For a man convicted with no previous criminal record, Greenberg said the mandatory minimum is his best guess for a sentence handed down on Van Dyke.  "I would be shocked if he got a day over the four or six years," Greenberg said.

Greenberg said prison conditions for an officer, like Van Dyke, could be rougher than for average convicts. As a white officer convicted of killing a young African-American, prison authorities are likely to conclude he has to be kept away from other prisoners for his own safety. "He will probably be in a cell by himself," Greenberg said.  "It will be very hard time." That may have already started.  At prosecutors' request, Van Dyke's bond was revoked minutes after the verdicts were announced and Judge Gaughan ordered he be held in jail pending sentencing. He stood up from the defense table, then put his arms behind his back as two deputies led him away.

I am not an expert on Illinois sentencing law, but presuming this article has the law corrected, I am struck that the mandatory minimum prison term for second-degree murder in the state is 50% less than mandatory minimum for aggravated battery with a firearm. It is also notable and telling that if the sentencing judge here were permitted and inclined to run the various sentences consecutively rather than concurrently, the defendant here would be facing 100 years in prison as the applicable mandatory minimum.  But if the crimes are found to be "merged" under Illinois law, four years could become the minimum and 20 years the max.

October 7, 2018 in Gun policy and sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences | Permalink | Comments (8)

Thursday, October 04, 2018

Excited to hear Shon Hopwood speak about earned prison credit as Ohio considers ballot initiative known now as Issue 1

For months I have been flagged here and elsewhere the interesting and intricate drug sentencing and prison reform initiative on the November 2018 ballot here in Ohio.  Originally called the "Neighborhood Safety, Drug Treatment and Rehabilitation Amendment," the initiative now is just known within Ohio as Issue 1.   With early voting in Ohio now just days away, the new Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law has its latest Issue 1 program  taking place today. 

Specifically, at the College of Law at 12noon, is the second of our five public panels under the title Ballot Insights.  (Registration for these panels is available at this link, where you can also find more details on the focus for each of the panels.)  Today's panel is focused on the Issue 1 provisions expanding "earned time credit" for Ohio prisoners to reduce their sentences through rehabilitative programming, and we have the pleasure of hosting Shon Hopwood as one of the panelists. 

In addition to the panels, DEPC has also created a Resources Page for Issue 1, which includes links to the ballot language, position statements from various groups and select media coverage.  DEPC is also building out a Commentary Page on Issue 1 for publishing original commentary that the Center has solicited. 

 Prior related posts:

October 4, 2018 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Tuesday, October 02, 2018

"Sentencing Reform: Fixing Root Problems"

The title of this post is the title of this new paper now available via SSRN authored by Peter Joy and Rodney Uphoff.  Here is its abstract:

In theory, at least, many subscribe to the belief that it is better to let 10 or 100 guilty persons go free rather than convict an innocent person.  Indeed, the American criminal justice system provides criminal defendants a panoply of important rights, including the right to effective assistance of counsel, in large part to ensure that the innocent are not convicted of crimes that they did not commit.  But defense counsel is there not only to protect the innocent, but also to ensure that, if the defendant is found guilty after trial or if the defendant pleads guilty before trial, he or she will receive a fair sentence.

In practice, however, too many criminal defendants receive lackluster representation, and few ever actually exercise their right to trial. Instead, our current criminal justice system is plea-bargain-driven, and the vast majority of state and federal criminal offenders plead guilty — approximately 97% of federal cases and 94% of state cases are resolved by guilty pleas rather than trials. Commenting on the prevalence of negotiated guilty pleas, the U.S. Supreme Court has stated that “plea bargaining is . . . not some adjunct to the criminal justice system; it is the criminal justice system.”

Why, then, are criminal defense lawyers able to persuade the vast majority of their clients to plead guilty, even those who are actually innocent?  Put simply, it is because our system punishes so severely those who go to trial and lose.  If we are serious about both minimizing the conviction of the innocent and sentencing reform, we must address this reality.  This essay, therefore, focuses on two pernicious features of our current criminal justice system — misuse of plea bargaining and misuse of informants — that explain why so few criminal defendants exercise their right to trial.  We conclude with proposals that might ameliorate those features of our system.

October 2, 2018 in Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Monday, October 01, 2018

California reduces reach of its broad felony-murder law, and provides for retroactive sentence reductions accordingly

In my Criminal Law class, we just finished a unit on mens rea and are about to start on homicide laws.  This interesting legal news out of California, headlined "California sets new limits on who can be charged with felony murder," comes at a very convenient time for me. Much more importantly, the law might mean less time in prison for others who got convicted of murder despite having no intent to kill. Here are the basic details:

Gov. Jerry Brown signed legislation on Sunday that limits who can be prosecuted for felony murder to those who commit or intend to commit a killing.  The new law, which goes into effect on Jan. 1, scales back California’s current felony murder rule, which allows defendants to be convicted of first-degree murder if a victim dies during the commission of a felony — even if the defendant did not intend to kill, or did not know a homicide took place.

For defendants facing prosecution for the crime, the new law could mean a shot at less time in prison. Hundreds of inmates serving time will be able to petition the court for a reduced sentence.

The new felony murder law, a bipartisan proposal co-authored by Sen. Nancy Skinner (D-Berkeley) and Sen. Joel Anderson (R-Alpine), is among a series of criminal justice policies enacted under the Brown administration to reduce the numbers of those incarcerated, and give prisoners more chances of early release and services to better prepare them to enter society.  State lawmakers this legislative session also eliminated the use of money bail and reduced punishment for teens under 15.

Defense lawyers and other supporters say the new prosecution standards requiring proof of intent will make the state’s felony murder law similar to how prosecutors charge other crimes. Cases in which an officer was killed will not be subject to the new law, which goes into effect on Jan. 1.  But law enforcement groups opposed the changes, arguing it could lead to more violent people on the streets....

Lawmakers who supported Senate Bill 1437 called the state’s felony murder law archaic and blamed it for disproportionately long sentences imposed on people who did not kill anyone. A 2018 survey that found 72% of women serving a life sentence for felony murder in California did not commit the homicide.  The average age of people charged and sentenced under the statute was 20, according to the report from the Anti-Recidivism Coalition and Restore Justice, a nonprofit that helps offenders reenter society....

On Sunday, Skinner called the law a historic and reasonable fix, bringing California in line with other states such as Arkansas, Kentucky, Hawaii, Massachusetts and Michigan that have narrowed the scope of their felony murder rules.  “California’s murder statute irrationally treated people who did not commit murder the same as those who did,” she said in a statement released Sunday.  “SB 1437 makes clear there is a distinction, reserving the harshest punishment to those who directly participate in the death.”

October 1, 2018 in Offense Characteristics, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1)

Sunday, September 30, 2018

Former Illinois Gov Rod Blagojevich makes "plea for prison reform"

The federal prison inmate formerly known as Blago has authored in the Washington Examiner this commentary published under the headline "Rod Blagojevich: My plea for prison reform." Here are excerpts:

I am living the reverse American dream — a bad dream that I share with other inmates at a prison in Colorado where I am currently serving a 14-year sentence.  So what happened?

Carved in stone on the front portico of the U.S. Supreme Court building are the words “Equal Justice Under Law.” But as I sit here in prison, I can’t help but reflect on those four words and feel an overwhelming sense of sadness — not just for me, but for many of my fellow inmates as well.  Here’s why.

It is not equal justice under law when over-sentencing is the rule rather than the exception; when our incarceration rate has increased by more than 500 percent over the last forty years; when an American citizen in good faith trusts the integrity of the courthouse, but to their horror discovers that the game is rigged, and that they are being denied a fair trial before proceedings even begin.

The national debate in Congress on prison and sentencing reform is a conversation that is long overdue.  And as that debate heats up, I’d like to offer a few points of my own and share some things I’ve learned on this painful journey.

As a dishwasher, I start work at 3:30 each morning and earn a total of $8.40 a month.  Did you know that the average wage for an inmate is 23 cents to $1.15 an hour?  In some states, inmates have to work for free.  I never expected to get rich in prison, but am I wrong in viewing this rock-bottom wage as society's way of showing its contempt, telling us that we are all worthless? Is that a good message to send to people we plan to release someday, and whom we'd rather not see offend again?  To people we hope will survive on their own without resorting again to crime?...

Did you know that the average cost to the taxpayer to house each inmate is around $33,000 a year?  In California, taxpayers pay $75,000 a year per inmate. In total, taxpayers are left with a $39 billion invoice each year.  And what’s the government’s solution? Increase our prison population and force hard working Americans to pay even higher taxes.

Did you know that federal prosecutors like to boast about their 97 percent conviction rate?  Yet when you think about it, shouldn't that fact raise an alarm bell to all freedom loving people? Michael Jordan, as great as he was, only made half the shots he attempted.  And knowing what I now know through my experience, this almost perfect success rate is convincing proof that the federal criminal justice system works against the accused.  It is neither a place to expect a fair trial nor is it a place where the promise of justice for all is a promise kept.

Did you know that from 2013 to 2017, the Federal Bureau of Prisons denied 94 percent of the applications from inmates requesting a “compassionate release” due to a terminal illness? And in all of these cases, instead of dying with dignity surrounded by loved ones, terminally ill inmates were left to die alone in prison.  Did you know that if a spouse or child passes away while you are in prison, that you’re not even allowed a furlough to attend the funeral services?  Did you know that when incarcerated women give birth, that they are chained and handcuffed to the hospital bed?

My time in prison has taught me that we need serious reforms.  It’s also taught me that there are a lot of people in here with good hearts.  Instead of creating a system that punishes and dehumanizes inmates, let’s create a system that rehabilitates prisoners and prepares them for life outside of prison.  So here is my message: We can never reach our potential until we as a people rise up and demand that our elected representatives bring about reform; until freedom is safeguarded by a renewed and unwavering commitment to the rule of law; until mercy seasons justice, and fair play governs those who govern us.

September 30, 2018 in Celebrity sentencings, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Thursday, September 27, 2018

"'You Miss So Much When You’re Gone': The Lasting Harm of Jailing Mothers Before Trial in Oklahoma"

Download (20)The title of this post is the title of this big new report produced by Human Rights Watch and the ACLU. Here is part of the report's starting summary:

Every day in Oklahoma, women are arrested and incarcerated in local jails waiting — sometimes for weeks, months, a year, or more — for the disposition of their cases.  Most of these women are mothers with minor children.

Drawing from more than 160 interviews with jailed and formerly jailed mothers, substitute caregivers, children, attorneys, service providers, advocates, jail officials, and child welfare employees, this report shows how pretrial detention can snowball into never-ending family separation as mothers navigate court systems and insurmountable financial burdens assessed by courts, jails, and child welfare services....

While most women admitted to jails are accused of minor crimes, the consequences of pretrial incarceration can be devastating.  This report finds that jailed mothers often feel an added, and unique, pressure to plead guilty so that they can return home to parent their children and resume their lives.  These mothers face difficulties keeping in touch with their children due to restrictive jail visitation policies and costly telephone and video calls.  Some risk losing custody of their children because they are not informed of, or transported to, key custody proceedings.  Once released from jail, they are met with extensive fines, fees, and costs that can impede getting back on their feet and regaining custody of their children.

Women are the fastest growing correctional population nationwide and since the 1990s, Oklahoma has incarcerated more women per capita than any other US state.  Local jails (which typically house people prior to conviction, sentenced to short periods of incarceration, or awaiting transfer to prisons for longer sentences) are a major driver of that growth.  On a single day, the number of women in jails across the US has increased from approximately 8,000 in 1970 to nearly 110,000 in 2014, a 1,275 percent increase, with rural counties accounting for the largest growth rate. Many times more are admitted to jail over the course of a year.

The growth in women’s incarceration also means growth in the number of jailed mothers, which has doubled since 1991.  Nationwide, more than 60 percent of women in prisons and nearly 80 percent of women in jails are mothers with minor children.  A study conducted by the US Bureau of Justice Statistics reported that a majority of incarcerated mothers lived with and were the sole or primary caretaker of minor children prior to their incarceration.

This means that when mothers go to jail or prison, their children are more likely not to have a parent left at home, and can either end up with other relatives or in foster care. One in 14 children in the US, or nearly six million children, have had a parent behind bars, which researchers identify as an adverse childhood experience associated with negative health and development outcomes.  Children of color are disproportionately impacted by parental incarceration, with one in 9 Black children having had an incarcerated parent compared to one in 17 white children.

Jailed mothers are often dealing with a myriad of issues prior to their incarceration, which is why comprehensive support is essential to keep families together, disrupt cycles of incarceration, and to preserve human rights to liberty, due process, equal protection, and family unity.  Losing contact with and custody of their minor children should not be a consequence of arrest and criminal prosecution.

While nationally and in Oklahoma the rate of women’s incarceration is garnering increasing attention, many barriers to achieving necessary reforms remain.

Human Rights Watch and the ACLU urge Oklahoma and other states to require the consideration of a defendant’s caretaker status in bail and sentencing proceedings, expand alternatives to incarceration, facilitate the involvement of incarcerated parents in their children’s lives and proceedings related to child custody, and substantially curb the imposition of fees and costs, which can impede reentry and parent-child reunification.

September 27, 2018 in Collateral consequences, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1)

Monday, September 24, 2018

Official FBI crime data for 2017 reports violent and property crime in decline in United States

Early markers hinted that crime was back to declining in 2017, after violent crime had increases in 2015 and 2016 in the United States.  This official FBI press release provides these basics on the latest official FBI data:

After two consecutive years of increases, the estimated number of violent crimes in the nation decreased 0.2 percent in 2017 when compared with 2016 data, according to FBI figures released today. Property crimes dropped 3.0 percent, marking the 15th consecutive year the collective estimates for these offenses declined.

The 2017 statistics show the estimated rate of violent crime was 382.9 offenses per 100,000 inhabitants, and the estimated rate of property crime was 2,362.2 offenses per 100,000 inhabitants. The violent crime rate fell 0.9 percent when compared with the 2016 rate; the property crime rate declined 3.6 percent.

These and additional data are presented in the 2017 edition of the FBI’s annual report Crime in the United States. This publication is a statistical compilation of offense, arrest, and police employee data reported by law enforcement agencies voluntarily participating in the FBI’s Uniform Crime Reporting (UCR) Program....

Of the 18,547 city, county, university and college, state, tribal, and federal agencies eligible to participate in the UCR Program, 16,655 agencies submitted data in 2017. A high-level summary of the statistics submitted, as well as estimates for those agencies that did not report, follows:

  • In 2017, there were an estimated 1,247,321 violent crimes.  The estimated number of robbery offenses decreased 4.0 percent, and the estimated number of murder and nonnegligent manslaughter offenses decreased 0.7 percent when compared with estimates from 2016.  The estimated volume of aggravated assault and rape (revised definition) offenses increased 1.0 percent and 2.5 percent, respectively.
  • Nationwide, there were an estimated 7,694,086 property crimes.  The estimated numbers for two of the three property crimes showed declines when compared with the previous year’s estimates.  Burglaries dropped 7.6 percent, larceny-thefts decreased 2.2 percent, but motor vehicle thefts rose 0.8 percent.
  • Collectively, victims of property crimes (excluding arson) suffered losses estimated at $15.3 billion in 2017.
  • The FBI estimated law enforcement agencies nationwide made 10.6 million arrests, (excluding those for traffic violations) in 2017.
  • The arrest rate for violent crime was 160.7 per 100,000 inhabitants; the arrest rate for property crime was 388.7 per 100,000 inhabitants.
  • By violent crime offense, the arrest rate for murder and nonnegligent manslaughter was 3.8 per 100,000 inhabitants; rape (aggregate total using the revised and legacy definition), 7.2; robbery, 29.3; and aggravated assault, 120.4 per 100,000 inhabitants.
  • Of the property crime offenses, the arrest rate for burglary was 61.7 per 100,000 inhabitants; larceny-theft, 296.0; and motor vehicle theft, 28.2. The arrest rate for arson was 2.8 per 100,000 inhabitants.

As I have said in the past and will say in the future, reports of declining crime rates is something that everyone should celebrate while continuing to consider how we can continue to do better both with crime and punishment.  As reported here last week, data from the Brennan Center suggests we are continuing to do better on crime issues in 2018.  Given that the latest prisoner statistics suggesting continued declining prison populations through 2017 and 2018 — e.g., as of September 20, 2018, the federal prison population was reported at 181,800, down more than 5% from the reported population of 192,170 in 2016 and down almost 20% from the 219,298 federal prisoners reported in 2013 — it seems we may be finding ways to have less reported crimes and less prison punishment. 

September 24, 2018 in National and State Crime Data, Scope of Imprisonment | Permalink | Comments (0)

Wednesday, September 19, 2018

Opportunities for law students and recent law grads interested in prisoners’ rights

Sharon Dolovich, Professor of Law and Director of the Prison Law & Policy Program at the UCLA School of Law asked me to post the following.  It is my pleasure to do so:

Below are two announcements for law students and recent law grads interested in prisoners’ rights:

  1. About 18 months ago, the UCLA Prison Law and Policy Program launched Prison Law JD, a listserv for current law students and young lawyers interested in prisoners’ rights. The list is currently used to share job and fellowship announcements and other information of interest, and we are in the midst of creating mechanisms to allow members to connect to one another directly over issues of mutual interest.  The ultimate aim is to forge a community among the next generation of prisoners’ rights advocates. If you know any law students or young lawyers who might want to join Prison Law JD, please invite them to contact me at dolovich@law.ucla.edu

  2. The National Prisoners’ Advocates Conference will take place at University of Denver College of Law Oct 5-6, 2018.  The day before, Thursday Oct 4, Prison Law JD will be hosting a pre-conference program. If you know anyone you think might like to participate in either part of this program, whether in person or remotely, please share this information with them.

From 3:30-5:15pm, there will be a panel discussion geared toward law students and recently graduated lawyers interested in doing this work. The panel will feature Sarah Grady of Loevy and Loevy on the nuts and bolts of prisoner litigation, Deb Golden of the Human Rights Defense Center on the Prison Litigation Reform Act (PLRA), and Bret Grote of the Abolitionist Law Center on non-obvious routes to doing prisoners' rights work.

For those unable to attend in person, this panel will be broadcast at the link below:

Starting out as a Prisoners’ Rights Lawyer: What You Need to Know, 10/4/2018 (Thu)

https://du-denverlaw.hosted.panopto.com/Panopto/Pages/Viewer.aspx?id=4a5ba04a-1669-4c85-929b-a95f0112fd67

Live stream from classroom starts at 3:20pm and ends at 5:30pm.

At 5:45pm, there will be a working group strategy session to think about how to build out the Prison Law JD community and best support the next generation of prisoners’ rights lawyers. Those who can’t be there in person are welcome to participate remotely. Here’s the call-in info:

Zoom Conference Call in Number and Meeting ID Number (Meeting Starts at 5:45 pm and Ends at 8:00 pm MDT)

Telephone: Dial(for higher quality, dial a number based on your current location):    US: +1 646 558 8656  or +1 669 900 6833

    Meeting ID: 568 249 890     International numbers available: https://zoom.us/u/aewKZAGStV

Any questions? Please contact Sharon Dolovich at dolovich@law.ucla.edu

September 19, 2018 in Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

"A Way Out: Abolishing Death By Incarceration in Pennsylvania"

AlcThe title of this post is the title of this lengthy new report released this week by the Abolitionist Law Center.  Here are excerpts from its executive summary:

Over the last 25 years, the number of people serving life-without-parole, or death-by-incarceration (DBI), sentences in the United States has exploded from 12,453 people in 1992 to over 53,000 people today — 10% of whom are incarcerated in Pennsylvania.

With over 5,300 people sentenced to DBI and one of the highest per capita DBI sentencing rates in the country, Pennsylvania stakes a strong claim as the U.S. and world leader in this distinctively harsh form of punishment and permanent exclusion of its citizens. Philadelphia, with nearly 2,700 people serving DBI sentences, is the world’s leading jurisdiction in sentencing people to die in prison —more than any county or parish in the United States and far more than any individual country in the world.

In 1974, fewer than 500 people were serving DBI sentences in Pennsylvania.  As of September 2017, 5,346 people are serving death-by-incarceration sentences in Pennsylvania. Despite a 21% decline in violent crime between 2003 and 2015, Pennsylvania’s population of people sentenced to DBI has risen by 40% between 2003 and 2016.6 Pennsylvania ranks near the top of every measure of DBI sentences across the country....

Like most measures of the criminal legal system, death-by-incarceration sentences disproportionately impact communities of color.  Black Pennsylvanians are serving death-by-incarceration sentences at a rate more than 18-times higher than that of White Pennsylvanians.

Latinx Pennsylvanians are serving DBI sentences at a rate 5-times higher than White Pennsylvanians. Racial disparities in DBI sentences are even more pronounced than among the overall Pennsylvania prison population, in which 47% of those incarcerated are Black, compared to 11% of the state’s population. Of those serving DBI sentences, however, 65% are Black while 25% are White.

Among other interesting aspects of this big report is this introductory note about terminology:

Throughout this report we use the term Death By Incarceration (DBI) when referring to life-withoutparole (LWOP) sentences.  We do this for several reasons.  First, it is the preferential term selected by incarcerated people that we work with who are serving these sentences, and we are a movement-lawyering organization that is accountable to the movements we work with.  Second, it focuses on the ultimate fact of the sentence, which is that the only way it ends, barring extraordinary relief from a court or the Board of Pardons, is with death.  Third, DBI invokes the social death experienced by the incarcerated, as they are subject to degraded legal status, diminished rights, excluded from social and political life, tracked with an “inmate number” like a piece of inventory, and warehoused for decades in this subjugated status.  Finally, although DBI in this report is used to refer to LWOP sentences, the DBI label indicates that our concern is not merely with LWOP sentences, but inclusive of other term-of-years sentences that condemn a person to die in prison.

September 19, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1)

Office of Inspector General assails how federal Bureau of Prisons manages female prisoners

As reported in this Washington Times piece, "A critical shortage of correctional officers plaguing the nation’s prison system is having a disparate effect on female inmates, a government watchdog said Tuesday." Here is more about the report and reactions to it:

The Justice Department’s inspector general, Michael E. Horowitz, concluded the dearth of trained prison employees is restricting the access of female prisoners to necessary care and services. “The lack of sufficient staff is most noticeable at larger female institutions,” Mr. Horowitz wrote in a report....

The report also concluded that 90 percent of the female inmate population would benefit from trauma treatment, but staffing shortages make it nearly impossible to provide eligible inmates with the care they need, according to the report....

Kara Gotsch, director of Strategic Initiatives at the Sentencing Project, said she was “not shocked” by the inspector general’s findings. “There is a staffing shortage system-wide,” she said.  “But staff shortages are more complicated with women prisoners because it’s compounded when you have male correctional officers in positions where women are required to do the strip searches.”

The inspector general recommended the Bureau of Prisons improve the allocation of staff across the country’s correctional facilities and ensure that all staffers have received proper training.  In a response attached to the report, Hugh Hurwitz, acting director for the Federal Bureau of Prisons, said he agrees with the inspector general’s recommendations and vowed to improve both staffing and training.  “The BOP will determine the appropriate level of staffing that should be allocated to the Women and Special Populations Branch, based on an analysis of its broad mission and responsibilities,” Mr. Hurwitz wrote.

Ms. Gotsch said the best solution to the issue is sentencing reform to reduce the number of women incarcerated for low-level offenses.  “We are putting too many women in prison for low-level offenses for too long,” she said.  “There is never enough money in the federal budget to adequately care for prisoners if we have significant overcrowding and maintain these high levels of incarceration.”

The full 60-page OIG report is titled "Review of the Federal Bureau of Prisons’ Management of Its Female Inmate Population," and it is available at this link.  Here is a paragraph from its introduction:

We concluded that BOP has not been strategic in its management of female inmates.  We determined that BOP needs to take additional steps at the Central Office level to ensure that female inmate needs are met at the institution level.  Our review identified instances in which BOP’s programming and policy has not fully considered the needs of female inmates, which has made it difficult for inmates to access certain key programs and supplies.  Further, while BOP is adhering to federal regulations and BOP policies requiring that only female Correctional Officers conduct strip searches of female inmates, BOP’s method for ensuring compliance with these requirements assigns staff inefficiently.  Finally, we found that BOP’s conversion of Federal Correctional Institution (FCI) Danbury to house male inmates negatively affected certain female inmates who had been housed there.

September 19, 2018 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

Sunday, September 16, 2018

Making the case for a bill to end juve LWOP in the federal system

Marc Levin and Jody Kent Lavy have this new commentary in The Hill under the headline "Sentencing reform is critical for youth in the justice system." Here are excerpts:

As states across the country move to right-size their prison systems, managing to reduce incarceration, costs and crime, it is important to consider reform at the federal level as well.  And when it comes to reforming our sentencing laws, there seems no better place to start than with the most vulnerable among us: our children.  The United States is the only country known to impose life without the possibility of parole on people under the age of 18.

Congressman Bruce Westerman (R-Ark.) took the lead on reform by introducing HR 6011, which would end life-without-parole and de facto life sentences for children in the federal criminal justice system.  Westermanhas been joined by a bipartisan team of co-sponsors — Karen Bass (D-Calif.), Tony Cardenas (D-Calif.) and Lynn Jenkins (R-Kansas) — but other members of Congress must also show their support in this policy rooted in redemption, rehabilitation, and second chances....

Imposing excessive sentences on children ignores what adolescent development research has documented.  And in just the last five years, conservative states like North Dakota, Utah, and Westerman’s native Arkansas have led the way in banning life-without-parole for children.  The Arkansas legislation, now titled Act 539, affects more than 100 people in the state and received broad bipartisan support in the legislature.  Nineteen other states and the District of Columbia prohibit youth from being sentenced to a life in prison with absolutely no hope of re-entering as a productive member of society and no goal to work toward.

Should it pass, HR 6011 would ensure that children sentenced in the federal system have the opportunity to petition a judge to review their sentence after they have served 20 years in prison.  They would then be afforded counsel at each of their review hearings — a maximum of three — where the judge would consider, among other factors, their demonstrated maturity, rehabilitation, and fitness to re-enter society. In other words, this bill does not guarantee release for anyone, but would ensure that children prosecuted and convicted of serious crimes in the federal system are afforded an opportunity to demonstrate whether they are deserving of a second chance.  HR 6011 holds children accountable while providing a reason to pursue self-betterment.  It gives hope to those who would otherwise be staring down a hopeless life sentence without the possibility of a second chance....

We hope other members of Congress will join Congressman Westerman’s bipartisan efforts to create a more fair and just system for our children who are convicted of serious crimes in the federal system.  Mercy is justice, too, and no one is more deserving of our mercy and the opportunity for a second chance than our children.

September 16, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

Thursday, September 13, 2018

"Can We Downsize Our Prisons and Jails Without Compromising Public Safety? Findings from California's Prop 47"

The title of this post is the title of this new article in Criminology & Public Policy authored by Bradley Bartos and Charis Kubrin. Here is its abstract:

Research Summary

Our study represents the first effort to evaluate systematically Proposition 47's (Prop 47's) impact on California's crime rates.  With a state‐level panel containing violent and property offenses from 1970 through 2015, we employ a synthetic control group design to approximate California's crime rates had Prop 47 not been enacted.  Our findings suggest that Prop 47 had no effect on homicide, rape, aggravated assault, robbery, or burglary.  Larceny and motor vehicle thefts, however, seem to have increased moderately after Prop 47, but these results were both sensitive to alternative specifications of our synthetic control group and small enough that placebo testing cannot rule out spuriousness.

Policy Implications

As the United States engages in renewed debates regarding the scale and cost of its incarcerated population, California stands at the forefront of criminal justice reform.  Although California reduced its prison population by 13,000 through Prop 47, critics argue anecdotally that the measure is responsible for recent crime upticks across the state.  We find little empirical support for these claims. Thus, our findings suggest that California can downsize its prisons and jails without compromising public safety.

The authored of this research also have this new commentary in Governing headlined "The Myth That Crime Rises as Prisons Shrink: California's dramatic reduction in its prison populations hasn't compromised public safety." Here is an excerpt:

Approved by the voters in 2014, Prop 47 was controversial from the start. It downgraded the lowest-level non-violent drug and petty-theft crimes from felonies to misdemeanors. Critics warned that the measure would embolden would-be criminals as felony arrests throughout the state plummeted.  After Prop 47 went into effect in 2014, lowering prison populations by 13,000, that controversy only escalated.  Soon law-enforcement officials were calling for the measure to be repealed.  They blamed rising crime rates on Prop 47.

But the science doesn't support the assertion that Prop 47 is to blame. We recently published a study that was the first effort to systematically evaluate Prop 47's impact on crime in California.  Our research found that the proposition had no appreciable impact on crime in the year following its enactment.

September 13, 2018 in Data on sentencing, Detailed sentencing data, National and State Crime Data, Scope of Imprisonment | Permalink | Comments (2)

Wednesday, September 05, 2018

ACLU Campaign for Smart Justice launches "Smart Justice 50-State Blueprints"

As detailed in this ACLU press release, titled "Smart Justice Blueprints Launch With 24 State Reports And Interactive Web Tool, Remaining 27 To Be Rolled Out In Coming Months," the folks at the ACLU have an interesting new set of state-focused national resources advocating for criminal justice reform. Here are portions of the press release:

The American Civil Liberties Union’s Campaign for Smart Justice today unveiled the Smart Justice 50-State Blueprints, a comprehensive, state-by-state analysis of how states can transform their criminal justice system and cut incarceration in half.

The Smart Justice 50-State Blueprints are the first-ever analysis of their kind and will serve as tools for activists, advocates, and policymakers to push for transformational change to the criminal justice system.  They are the result of a multi-year partnership between the ACLU, its state affiliates, and the Urban Institute to develop actionable policy options for each state that capture the nuance of local laws and sentencing practices.

The 51 reports — covering all 50 states and the District of Columbia — will be released in multiple phases, beginning with an initial rollout of 24 state reports.  The reports are all viewable on an interactive website that allows users to visualize the reductions in jail and prison population that would result from the policy decisions that states pursue.  The interactive feature is here.

Each blueprint includes an overview of the state’s incarcerated populations, including analysis on who is being sent to jail and prison and the racial disparities that are present, what drives people into the system, how long people spend behind bars, and why people are imprisoned for so long.  The blueprints offer a calculation on the impact of certain reforms by 2025 on racial disparities in the prison population, fiscal costs, and overall prison population.  They also show precisely how a 50 percent decarceration goal could be achieved.

While more than 2 million people are behind bars in the United States, only about 10 percent are in federal prisons. Approximately 90 percent of the people incarcerated in the United States are held in local jails and in state prisons.  “Mass incarceration is a nationwide problem, but one that is rooted in the states and must be fixed by the states,” said Udi Ofer, director of the ACLU Campaign for Smart Justice.  “We hope that the Smart Justice 50-State Blueprints provide necessary guideposts for activists and policymakers as they pursue local solutions that will address the stark racial disparities in our criminal justice system and dramatically reduce their jail and prison populations.  Some of the reforms contained in the blueprints are readily achievable, while others are going to require audacious change. But all are needed to prioritize people over prisons.”

The state reports provide a snapshot of how reformers cannot take a one-size-fits-all approach to ending mass incarceration.  For example, in Louisiana, because more than one in three people admitted to prison in 2016 were convicted of property offenses and 30 percent of all admissions were for drug offenses, one road that Louisianans could take for reducing their prison population would be reclassifying drug and many property offenses as misdemeanors rather than felonies.

In Pennsylvania, the number of people entering prison for parole violations grew by 56 percent between 2006 and 2016, suggesting that the state’s decarceration strategy should include the improvement of parole and release policies and the implementation of reforms that would drive down the number of people sent to prison due to supervision violations.

Finally, in Michigan, 16 percent of prison admissions are for drug offenses, and a majority of the people (74 percent) imprisoned in Michigan are serving time for offenses involving violence. Thus, to reduce significantly the prison population in Michigan, policymakers must focus more heavily on transforming the way the criminal justice system responds to offenses like robbery and assault, which lead to sentences that have become harsher and longer over the past decade.

The website and the reports were created by utilizing a forecasting tool developed by the Urban Institute, which can be viewed here.

September 5, 2018 in Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences | Permalink | Comments (6)

"Decarceration Strategies: How 5 States Achieved Substantial Prison Population Reductions"

The title of this post is the title of this new 50-page report by The Sentencing Project. Here is the start of its executive summary:

From 1980 until its peak in 2009, the total federal and state prison population of the United States climbed from about 330,000 to more than 1.6 million — a nearly 400% increase  — while the total general population of the country grew by only 36%, and the crime rate fell by 42%.  The catalyst of this prison expansion was policy changes that prioritized “getting tough” on crime. 

The national prison population began a gradual descent after 2009, lessening by nearly 113,000 (6%) from 2009 through 2016.  Several factors contributed to this decline: ongoing decreases in crime rates leading to fewer felony convictions; scaling back “war on drugs” policies; increased interest in evidence-based approaches to sentencing and reentry; and growing concerns about the fiscal cost of corrections and its impact on other state priorities.  The state of California alone was responsible for 36% of the overall population decline, a function of a 2011 U.S. Supreme Court ruling declaring its overcrowded prison system to be unconstitutional and subsequent legislative responses to reduce the use of state incarceration.

Despite the decline, the overall pace of change is quite modest.  A recent analysis documents that at the rate of change from 2009 to 2016 it will take 75 years to reduce the prison population by half.  And while 42 states have experienced declines from their peak prison populations, 20 of these declines are less than 5%, while 8 states are still experiencing rising populations.

To aid policymakers and criminal justice officials in achieving substantial prison population reductions, this report examines the experience of five states – Connecticut, Michigan, Mississippi, Rhode Island, and South Carolina — that have achieved prison population reductions of 14-25%.  This produced a cumulative total of 23,646 fewer people in prison with no adverse effects on public safety. (While a handful of other states have also experienced significant population reductions — including California, New York, and New Jersey —  these have been examined in other publications, and so are not addressed here.

The five states highlighted in this report are geographically and politically diverse and have all enacted a range of shifts in policy and practice to produce these outcomes.  All five were engaged in the Justice Reinvestment Initiative process, spearheaded by the Pew Charitable Trusts and the Council on State Governments, which was designed to work with stakeholders to respond to the driving forces of prison expansion in each state and to develop strategies for change in policy and practice.

This report seeks to inform stakeholders in other states of the range of policy options available to them for significantly reducing their prison population.  While we provide some assessment of the political environment which contributed to these changes, we do not go into great detail in this area since stakeholders will need to make their own determinations of strategy based on the particularities of their state.  We note, though, that the leaders of reform varied among states, and emerged among governors, legislators, criminal justice officials, and advocacy organizations, often benefiting from media coverage and editorial support.

The prison population reductions in these five states were achieved through data-driven policy reforms that pursued bipartisan consensus.  Changes were advanced in the areas of risk and needs assessment, community supervision, alternatives to incarceration, sentencing and sanctions, prison release mechanisms, prisoner reentry and community reintegration.

Five key strategies and practices that were employed in these states are summarized below, followed by extensive reviews for each of the five states.

September 5, 2018 in Data on sentencing, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Tuesday, September 04, 2018

Federal district court finds Louisiana LWOP sentence for low-level recidivist unconstitutionally excessive under Eighth Amendment (and local DA will not appeal to Fifth Circuit)

A helpful reader made sure I did not miss this local press report, headlined "Judge orders release or resentencing of St. Tammany man serving life for burglary," discussing a notable ruling from the federal district court in New Orleans.  Here are the basics:

When he went before a judge in 2010, Patrick Matthews was a 22-year-old father of two who had a criminal record but had never spent a day in prison. But to the office of former north shore District Attorney Walter Reed, he was a hardened criminal who deserved a life sentence as a habitual offender for the crime of simple burglary. Matthews received that sentence with no chance at parole in a state where “life means life.”

Eight years later, Reed is a convicted federal felon, though his case is on appeal. The Legislature has changed the law so that no one could receive a sentence like Matthews’ today, but Matthews himself, now 31, remains behind bars at a prison in St. Gabriel.

On Wednesday, however, U.S. District Judge Nannette Jolivette Brown said Matthews’ life sentence violates the U.S. Constitution’s ban on “cruel and unusual” punishment. She ordered him to be resentenced to a lesser term or released within 120 days.

Current 22nd Judicial District Attorney Warren Montgomery’s office is not appealing Brown’s decision, although prosecutors could still seek to keep him in prison for several years more. Attorney Justin Harrell said his client’s family is ecstatic. “At least there’ll be an end to it, as opposed to that indefinite life sentence,” Harrell said.

Although the federal court ruling hinged on the specific facts of Matthews’ case, it is in line with a larger shift in the past decade away from Louisiana’s strict mandatory minimum sentences. In 2013, the American Civil Liberties Union estimated that 429 people in Louisiana were serving sentences of life without possibility of parole for nonviolent offenses — more than in any other state. Criminal justice reform advocates like the ACLU singled out Matthews as an egregious example of the state’s penchant for sending people away for life for nonviolent offenses.

The Legislature changed the habitual offender law in 2017 to make it less strict. However, those changes did not affect sentences already in place. With his appeals in state court exhausted, Matthews had only the federal courts to ask for mercy.

Brown agreed to adopt the recommendation of Magistrate Judge Janis van Meerveld, who acknowledged that it was rare for the federal courts to weigh in on a state sentence. However, Meerveld said, Matthews presented an unusual case.... Meerveld said she had “no hesitation in finding that a sentence of life imprisonment without the possibility of parole for a youthful, drug-addicted offender guilty of nothing more than two clusters of minor, nonviolent property crimes crosses the line from merely harsh to grossly disproportionate.”

Prosecutors under both Reed's and Montgomery’s administrations consistently opposed Matthews’ appeals, but lately their stance has changed. In a short brief filed in July, Assistant District Attorney Matthew Caplan replied to a question from the judge as to whether the sentence was grossly disproportionate. “It appears that way,” he said.

As this press account reveals, US District Judge Nannette Jolivette Brown granted relief on "Matthews' excessive sentence claim" on the basis of the recommendation of US Magistrate Judge Janis van Meerveld.  Judge van Meerveld wrote an extended opinion explaining her recommendation in Matthews v. Cain, No. 2:15-cv-00430-NJB (E.D. La. Aug. 13, 2018), and that opinion can be downloaded below (and merits a full read).  Here are some key passages therein (emphasis in original):

Of course, the mere fact that a sentence is harsh does not mean that it is disproportionate.  Nevertheless, the undersigned has no hesitation in finding that a sentence of life imprisonment without the possibility of parole for a youthful, drug-addicted offender guilty of nothing more than two clusters of minor, nonviolent property crimes crosses the line from merely harsh to grossly disproportionate.  As one scholar has noted: “[T]here is no uglier disproportionality than a man, guilty of a minor crime, banished to a cage for the remainder of his life.”  Craig S. Lerner, Who’s Really Sentenced to Life Without Parole?: Searching for the “Ugly Disproportionalities” in the American Criminal Justice System, 2015 Wis. L. Rev. 789, 793 (2015) (footnote omitted)....

[A]at the time Matthews was sentenced, Louisiana law punished a wide swath of fourth offenders identically, regardless of the nature of their criminal histories.  Accordingly, a fourth offender with a history of nonviolent property crimes, such as Matthews, was treated no differently than a fourth offender with a history of violent crimes and/or serious sex offenses. However, the impropriety of equating such disparate offenders was so apparent that the state has now abandoned that practice.  In fact, as Matthews noted and the respondent did not dispute, an individual with Matthews’ criminal history would not even be eligible for a life sentence as a habitual offender under current Louisiana law.

The undersigned therefore finds that an interjurisdictional comparative analysis likewise supports a conclusion that Matthews’ sentence is unconstitutionally excessive.  It must be noted that this conclusion neither calls into question the general constitutionality of Louisiana’s habitual offender law nor impugns the state’s decision to employ a harsher recidivist sentencing structure than those employed by the vast majority of its sister states.  Rather, it is simply a recognition that even among the minority of states that vigorously punish recidivism, a sentence of life imprisonment without parole for a young, drug-addicted, nonviolent, sporadic burglar who had never been sentenced to a single day in prison for his prior offenses is such an anomaly as to be unconstitutional.

Download Matthews v. Cain excessiveness opinion

September 4, 2018 in Assessing Graham and its aftermath, Offender Characteristics, Offense Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Friday, August 31, 2018

"Judging Risk"

The title of this post is the title of this article authored by Brandon Garrett and John Monahan now available via SSRN. Here is its abstract:

Risk assessment plays an increasingly pervasive role in criminal justice in the United States at all stages of the process — from policing, to pre-trial, sentencing, corrections, and parole.  As efforts to reduce mass incarceration have led to adoption of risk-assessment tools, critics have begun to ask whether various instruments in use are valid and whether they might reinforce rather than reduce bias in the criminal justice system.  Such work has largely neglected how decisionmakers use risk assessment in practice.  In this Article, we explore the judging of risk assessment.  We study why decisionmakers so often fail to consistently use quantitative risk assessment tools.

We present the results of a novel set of studies of both judicial decisionmaking and attitudes towards risk assessment.  We studied Virginia because it was the first state to incorporate risk assessment in sentencing guidelines.  Virginia has been hailed as a national model for doing so.  In analyzing sentencing data in Virginia, we find that judicial use of risk assessment is highly variable.  Second, in the first comprehensive survey of its kind, we find judicial attitudes towards risk assessment in sentencing practice quite divided.  Even if, in theory, an instrument can better sort offenders in less need of jail or prison, in practice, decisionmakers may not use it as intended.

Still more fundamentally, in criminal justice, unlike in other areas of the law, one typically does not have detailed regulations concerning the use of risk assessment, specifying the content of assessment criteria, the peer review process, and standards for judicial review.  We make recommendations for how to better convey risk assessment information to judges and other decisionmakers, but also how to structure that decisionmaking based on common assumptions and goals.  We argue that judges and lawmakers must revisit the use of risk assessment in practice.  We conclude by setting out a roadmap for use of risk information in criminal justice.  Unless judges and lawmakers regulate the judging of risk assessment, the risk revolution in criminal justice will not succeed in addressing mass-incarceration.

August 31, 2018 in Procedure and Proof at Sentencing, Race, Class, and Gender, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

Thursday, August 30, 2018

Prison chief explains his "non-political approach" to sentencing and prison reforms

John Wetzel, who serves as chair of The Council of State Governments Justice Center, president of the Association of State Correctional Administrators and Secretary of Pennsylvania’s Department of Corrections, has this new Hill commentary under the headline "A non-political approach focused on what works is key to solving prison crisis."  I recommend the piece in full, and here are excerpts:

[W]hile criminal justice reform currently occupies the rarified airspace of being mutually appealing to both sides of the political spectrum at the macro level, there remains a split on whether sentencing reform — the front end of the criminal justice system — should be included as a component of the First Step Act.  As written, the legislation focuses solely on reforms to back end within the Federal Bureau of Prisons.

With the caveat that any improvements to the federal corrections system – even incremental improvements — should be welcomed with open arms, the factual answer is that to realize actual, quantifiable improvement, sentencing reform is essential. It’s easy and common to embrace the notion that recidivism reduction is a back end issue and one owned solely by corrections professionals like me.  This notion is dead wrong.

As a Republican appointed as Secretary of Corrections by a Republican governor (Tom Corbett) and who was asked to continue in the role by a Democratic governor (Tom Wolf), I would argue that good sentencing, and by extension, prison policy, can rise above party politics.

I believe the formula for recidivism reduction is this: Incarcerate the right people for the right amount of time and provide them with the programming they need that specifically addresses the criminogenic factors that led to them committing a crime and, finally, provide the individualized reentry support to start them on a path to good citizenship....

Governor Tom Wolf, in kicking off Pennsylvania’s most recent criminal justice reform initiative, exemplifies the outcomes measure: less crime, fewer victims.  Achieving that goal requires our system to make good decisions every step of the way — from who we incarcerate to how long, including what conditions we incarcerate them in through what supports we offer to restore them to society.

August 30, 2018 in Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (2)

Wednesday, August 29, 2018

"More Cops, Fewer Prisoners?"

The title of this post is the title of this notable new paper authored by Jacob Kaplan and Aaron Chalfin now available via SSRN. Here is the abstract:

A large literature establishes that hiring police officers leads to reductions in crime and that investments in police are a relatively efficient means of crime control compared to investments in prisons.  One concern, however, is that because police officers make arrests in the course of their duties, police hiring, while relatively efficient, is an inevitable driver of “mass incarceration."  This research considers the dynamics through which police hiring affects downstream incarceration rates.

Using state-level panel data as well county-level data from California, we uncover novel evidence in favor of a potentially unexpected and yet entirely intuitive result — that investments in law enforcement are unlikely to markedly increase state prison populations and may even lead to a modest decrease in the number of state prisoners.  As such, investments in police may, in fact, yield a “double dividend” to society, by reducing incarceration rates as well as crime rates.

August 29, 2018 in Data on sentencing, Scope of Imprisonment | Permalink | Comments (4)

Tuesday, August 28, 2018

"Incapacitating Motherhood"

The title of this post is the title of this new paper authored by Priscilla Ocen now available via SSRN.  Here is its abstract:

Incapacitation, the removal of dangerous people from society, is one of the most significant penal rationales in the United States.  Mass incarceration emerged as one of the most striking applications of this theory, as policymakers shifted from rehabilitative efforts toward incapacitation in jails and prisons across the country . Women have been uniquely devastated by this shift toward incapacitation.  Indeed, the United States is home to the largest and fastest growing women’s prison population in the world.

Of the women incarcerated in jails and prisons, nearly seventy percent were the primary caretakers of small children at the time of their arrest and approximately eighty percent are of reproductive age. Notwithstanding these alarming trends, the gendered dimensions of incapacitation have largely been underexplored in the scholarly literature. Rather, women’s incarceration has been theorized as an unintended consequence of the punitiveness directed toward Black men.

This Article aims to bridge this discursive gap by highlighting the specific ways in which incapacitation has been used as a means to regulate the bodies and reproductive capacities of marginalized women.  The Article advances this claim in three ways. First, by mapping the historical function of women’s prisons as a mechanism to restore and regulate “fallen women” who deviated from traditional norms associated with femininity and motherhood.  Second, by examining the ways in which contemporary women’s prisons similarly regulate women’s identities as mothers.  Instead of attempting to rehabilitate women, however, contemporary women’s prisons incapacitate women who engage in behavior or possess characteristics that diverge from traditional maternal norms.  Indeed, through what the Article terms the “incapacitation of motherhood,” women prisoners are alienated from their children, denied reproductive care, humiliated during pregnancy and postpartum recovery, and in some cases, sterilized. 

Lastly, contesting these practices and the incapacitation of motherhood, this Article calls for the use of a robust legal framework, informed by the principles of reproductive justice that are more protective of the reproductive capacities of incarcerated women.

August 28, 2018 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1)

Monday, August 27, 2018

Lots of notable pieces in August 2018 issue of Criminology & Public Policy

I just saw the contents of the August 2018 issue of the journal Criminology & Public Policy, and now I have at least half-dozen new pieces to add to my reading list. The issue has collections of pieces on timely topics such as "Risk Assessment And Juvenile Justice" and "Victim Compensation And White -Collar Crime" and "Downsizing Our Prisons And Jails" and "Prison Length Of Stay And Recidivism." Here are just a few of the article on these topics that seem worth checking out:

August 27, 2018 in Prisons and prisoners, Recommended reading, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Thursday, August 16, 2018

Senator Cotton delivers faulty arguments to prop up faulty federal sentencing system

With Jeff Sessions now in the role of Attorney General, Senator Tom Cotton is one of the last members of Congress eager to push a tough-and-tougher agenda.  Despite the US position as world leader in incarceration, Senator Cotton asserted a few years ago, as noted here, that "we have an under-incarceration problem."  His thinking today finds expression in this new Wall Street Journal article headlined "Reform the Prisons Without Going Soft on Crime: Proposals to give judges more discretion and cut mandatory minimums endanger public safety."  Regular readers will be familiar with many of the moves in this piece (even though we've not heard much from Bill Otis lately).  Here is a sample:

The U.S. faces a drug epidemic today, exactly the wrong time to go soft on crime.  According to the National Institute on Drug Abuse, in 2017 more than 72,000 Americans died of drug overdoses, a 37% increase from 2015 and a nearly 100% increase since 2008.  Violent crime has declined since the 1980s because mandatory minimums adopted then locked up violent criminals.  But in 2015-16, the most recent years for which full data are available, violent crime increased at its fastest rate in a quarter-century, though preliminary data suggest it might have leveled off in 2017....

This naive policy ignores the reality of recidivism.  Five out of six prisoners end up rearrested within nine years, according to a recent Justice Department study. In fact, on average reoffenders are rearrested five times — and not for minor crimes.  Only a handful of ex-convicts return to prison exclusively for parole violations, whereas 77% of drug offenders are rearrested for serious nondrug crimes, such as murder and rape.  Most criminals will commit more crimes after being released from prison, even with improved rehabilitation programs.  The last thing Congress should do is shorten their sentences or allow them to “serve time” in home confinement....

What is the logic of such leniency?  Activists say they want to reverse “mass incarceration.”  That is a curious characterization when less than half of crimes are even reported to police and more than 80% of property crimes and 50% of violent crimes that are reported go unsolved, according to Pew Research Center.  Tell those victims denied justice that the U.S. locks up too many criminals.

Virtually no one goes to federal prison for “low-level, nonviolent” drug offenses, especially mere drug use or possession. In 2015, there were 247 inmates in federal prison for drug possession. In these rare cases, the inmates usually pleaded down from a more serious offense.  In the extreme case of a manifestly unjust sentence, the pardon power is a better instrument of justice than broad sentencing reductions. President Trump has shown himself more than willing to intervene to redress such cases.

Some fiscal conservatives believe that America spends too much on the prison system.  Yet the Bureau of Prisons costs taxpayers less than $8 billion a year, or about 0.2% of the entire federal budget.  After national security, the government’s most basic responsibility is to protect its citizens from crime. The costs of crime and disorder — personal and economic — far outweigh the downsides of putting serious criminals behind bars.

Mandatory minimums and truth-in-sentencing laws work. Rather than eliminate them, Congress should improve access to faith-based and other antirecidivism programs in federal prisons.  American families deserve safe communities and protection from drugs and crime.  Criminals, especially first-time offenders who grew up in rough environments, deserve second chances — once they have done their time.

I suspect most readers can readily see logical flaws in Senator Cotton's advocacy here (e.g., how do poor clearance rates for violent crimes justify excessive drug sentences?).  Most fundamentally, the bills with a chance for passage in Congress do not get anywhere close to "eliminating"  mandatory minimums or truth-in-sentencing laws, and they in fact sadly do not really do all that much more than enhance antirecidivism programs in federal prisons.  But even the modest bills with a shot at passage (which have the support of Prez Trump) are too much for Senator Cotton.

John Pfaff has this twitter thread in which he describes the effort as "horrifically dishonest." John attacks various numbers in the op-ed, and I will just stress a telling flip-flop on the clemency front. Senator Cotton says "the pardon power is a better instrument of justice than broad sentencing reductions," but many folks on the right criticized Prez Obama's use of clemency at the end of the term by saying it should be Congress in charge of granting any serious sentencing relief.  Senator Cotton here also says here "President Trump has shown himself more than willing to intervene to redress such cases," but he has so far only commuted two extreme federal sentences (roughly .001% of the federal prison population).  Prez Trump has promised to do more, but he can not be expected to nor depended upon to do the kind of reform via clemency that Congress should be doing in the first instance.

UPDATE: Mark Holden has this new commentary, headlined "Correcting the Record About Sentencing Reform and Mandatory Minimums," which goes point-by-point through key claims made by Senator Cotton and provides different perspective on his assertion.

ANOTHER UPDATE:  Derek Cohen over at Right on Crime also has this notable response to Senator Cotton's piece under the headline "Setting the Record Straight"

August 16, 2018 in Criminal justice in the Trump Administration, Mandatory minimum sentencing statutes, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Thursday, August 02, 2018

"Capitalizing on Mass Incarceration: U.S. Growth in Private Prisons"

The title of this post is the title of this new report from The Sentencing Project. Here is part of its "Overview" and "Key Findings":

From 2000 to 2016 the number of people housed in private prisons increased five times faster than the total prison population. Over a similar timeframe, the proportion of people detained in private immigration facilities increased by 442 percent.

The federal government and 27 states utilized private prisons operated by for-profit and non-profit entities during 2016. New Mexico and Montana led the nation in their reliance on private prisons with 43 percent and 39 percent of their prison populations, respectively, housed within them (See Table 2).  Between 2000 and 2016, eight states – Arkansas, Kentucky, Maine, Michigan, Nevada, North Dakota, Utah and Wisconsin -- eliminated their use of private prisons due to concerns about safety and cost cutting.  In 2016, Louisiana changed the classification of its contracted beds and reported its private prison population as zero for the first time during this period.  Alternatively, five states -- Alabama, Connecticut, Pennsylvania, South Carolina and Vermont -- began contracting with private prisons between 2000 and 2016.

The federal government is the single largest user of private prisons in the United States but has reduced its population in private prisons in recent years.  However, in 2017 Attorney General Jeff Sessions withdrew an Obama-era directive to phase out private prison contracting because of concern for the federal correctional system’s ability “to meet future needs.”

This report provides a portrait of private prisons as a component of the American corrections landscape and assesses its impact on mass incarceration.  Among its most striking features is the broad variation found across jurisdictions in reliance on private prisons.  As outlined in the state case studies examining the history of prison privatization in Florida, New Mexico, New York, North Carolina and Texas (available in the appendix), those corrections systems most committed to the industry have faced controversy, including riots, deaths, and allegations of improper financial influence from for-profit prison companies....

KEY FINDINGS:

• Of the total U.S. prison population, one in 12 people (128,063) was incarcerated in private prisons in 2016; an increase of 47 percent since 2000.

• 26,249 people were also confined in privately-run immigration detention facilities in fiscal year 2017; a 442 percent increase since 2002.

• Federal prisons incarcerated the largest number of people in private prisons, 34,159, marking a 120 percent increase since 2000.

• The largest private prison corporations, Core Civic and GEO Group, collectively manage over half of the private prison contracts in the United States with combined revenues of $3.5 billion as of 2015.

• Companies often trim prison budgets by employing mostly non-union and lowskilled workers at lower salaries and offer limited benefits compared to staff at publicly run institutions.

• Cost savings claims associated with prison privatization are unfounded according to decades of research.

August 2, 2018 in Data on sentencing, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Sunday, July 15, 2018

"Incarceration, Recidivism, and Employment"

The title of this post is the title of this paper recently posted to SSRN authored by a group of economists. Here is its abstract:

Understanding whether, and in what situations, time spent in prison is criminogenic or preventive has proven challenging due to data availability and correlated unobservables. This paper overcomes these challenges in the context of Norway’s criminal justice system, offering new insights into how incarceration affects subsequent crime and employment. We construct a panel dataset containing the criminal behavior and labor market outcomes of the entire population, and exploit the random assignment of criminal cases to judges who differ ystematically in their stringency in sentencing defendants to prison. Using judge stringency as an instrumental variable, we find that imprisonment discourages further criminal behavior, and that the reduction extends beyond incapacitation.

Incarceration decreases the probability an individual will reoffend within 5 years by 29 percentage points, and reduces the number of offenses over this same period by 11 criminal charges. In comparison, OLS shows positive associations between incarceration and subsequent criminal behavior. This Sharp contrast suggests the high rates of recidivism among ex-convicts is due to selection, and not a consequence of the experience of being in prison. Exploring factors that may explain the preventive effect of incarceration, we find the decline in crime is driven by individuals who were not working prior to incarceration. Among these individuals, imprisonment increases participation in programs directed at improving employability and reducing recidivism, and ultimately, raises employment and earnings while discouraging further criminal behavior. For previously employed individuals, while there is no effect on recidivism, there is a lasting negative effect on employment. Contrary to the widely embraced ‘nothing works’ doctrine, these findings demonstrate that time spent in prison with a focus on rehabilitation can indeed be preventive for a large segment of the criminal population.

July 15, 2018 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (5)

Saturday, July 14, 2018

The American Conservative reviews how "Law-and-Order Texas Takes on Criminal Justice Reform"

I spotlighted in this post last week this lengthy commentary in The American Conservative under the full headline "Where the Right Went Wrong on Criminal Justice: Ending our 'incarceration nation' would help return conservatives to their roots, acting on principles most of them already hold."  Now comes the second extended piece in a series appears here under the full headline "Law-and-Order Texas Takes on Criminal Justice Reform:Seeking alternatives to bloated prison populations and recidivism, the Lone Star state leads others to pursue to the same." Here are excerpts

Though Jerry Madden had no prior background in corrections or law enforcement, he helped change the course of both fields. Madden was serving in the Texas House in 2005 when he got called into the speaker’s office. Speaker Tom Craddock, a fellow conservative Republican, told Madden he would be chairing the corrections committee. Madden asked Craddock what he should do. Craddock uttered eight words that changed Madden’s life and altered the course of American corrections policy: “Don’t build new prisons, they cost too much.”

Texas, even more than most other states at the time, had been on a prison-building spree. It had reached a point where the return on investment was low. Madden used his training as a statistical engineer to hunt down the data about what wasn’t working, or could easily be changed, throughout the corrections system. Along with his counterpart in the state Senate, John Whitmire, Madden put together a package to overhaul parts of the state’s criminal justice system....

Recidivism fell quickly in Texas. Back in 2005, the state was paroling 21,000 prisoners, 11,000 of whom returned. A decade later, the state paroled 28,000 prisoners and about 4,500 came back. “It’s an effort to continue getting the gains in public safety we’ve been getting for 20 years now, while also reducing our extraordinarily high levels of incarceration,” says Vikrant Reddy, a senior fellow at the Charles Koch Institute.

The success of the Texas model stirred other states to replicate it, beginning with Kansas, Ohio, and South Carolina. The fact that Texas had a “hang ’em high” reputation, built not just on high incarceration rates but also on its status as the nation’s most active executioner, helped convince conservative legislators in other states that the idea of providing treatment for prisoners wasn’t some bleeding-heart proposal. Rather it was a skeptical redirection of government funds away from a strictly brick-and-mortar approach that demonstrably had not worked.

And so the Texas experiment became a model elsewhere. Cost savings and statistics that might on paper have been just as impressive out of California or Vermont wouldn’t have swayed so many red-state legislators, Reddy says, particularly the Deep South converts the criminal justice reform movement has found in places such as Louisiana, Mississippi, and Georgia. “It was a tremendous stroke of luck for the country that Texas was the first to step out of the gate,” says Adam Gelb, who directs the Pew Charitable Trusts’ public safety performance project, which provides technical assistance to states on criminal justice policies.

Nearly three-dozen states have now enacted policies that mirror, to a greater or lesser extent, the Texas template. Every state has done something to address prisoner reentry programs and employment. The impact of these efforts is now being felt in Washington.

Prior related post:

July 14, 2018 in Elections and sentencing issues in political debates, Scope of Imprisonment, Who Sentences | Permalink | Comments (6)

Friday, July 13, 2018

Detailing how recent reforms have helped Louisiana shrink its incarceration rate to no longer be nation's leader

Ranking have a way of capturing attention, and this new Pew article reporting on a notable change in state rankings caught my eye.  The piece is headlined "Louisiana No Longer Leads Nation in Imprisonment Rate: New data show impact of 2017 criminal justice reforms," and here are excerpts:

Louisiana no longer leads the nation in imprisonment, one year after enacting a landmark package of 10 criminal justice reform laws. In June 2018, Oklahoma became the U.S. state with the highest imprisonment rate, replacing Louisiana, which had been the nation’s prison capital for nearly 20 years.

The numbers are based on calculations by The Pew Charitable Trusts, which analyzed data from the state corrections departments and population estimates from the U.S. Census Bureau. At the beginning of June, the imprisonment rate in Louisiana was 712 per 100,000 residents, compared with 719 per 100,000 residents in Oklahoma. Louisiana now ranks second in imprisonment. The numbers in both states far exceeded the national rate, including state and federal prisoners, which was 450 per 100,000 residents at the end of 2016.

The latest data reinforce a central lesson of criminal justice reform in the past decade: States’ policy choices can help control the size and cost of their prison systems and protect public safety. Although implementation of Louisiana’s reforms is still in the early stages, the Department of Public Safety and Corrections and the Commission on Law Enforcement released a report in June with some initial results that show quick and solid progress since the first pieces of legislation went into effect in August 2017....

After a year’s worth of data analysis and study by the task force, the Legislature in 2017 passed and the governor signed the most significant overhaul of criminal justice laws in state history. The package of 10 bills — sponsored by six Republicans, two Democrats, and one independent — steers people convicted of less serious crimes away from prison, strengthens incarceration alternatives, reduces prison terms for those who can be safely supervised in the community, removes barriers to re-entry into the community, and bolsters programs that support victims of crime.

Louisiana’s landmark reforms are perhaps the most dramatic example of a state taking greater control of its prison growth and spending, but many others have acted as well. More than 30 states have adopted reforms, spurring shifts in imprisonment rate rankings. In 2007, for example, Texas began investing hundreds of millions of dollars in various treatment and diversion programs.  The state dropped from third place in 2008 to seventh by the end of 2016, the most recent year for which complete national data are available. In South Carolina, comprehensive reforms enacted in 2010 helped move the state from ninth to 20th.

Pew also this week released this Fact Sheet on state reform efforts under the heading "35 States Reform Criminal Justice Policies Through Justice Reinvestment."

July 13, 2018 in Prisons and prisoners, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences | Permalink | Comments (3)

Sunday, July 01, 2018

With Justice Kennedy retiring, overturning Harmelin should become a focal point for criminal justice reformers

Afa20c10520c365bf6ac550a70c058e6There are lots of important Supreme Court precedents that lots of people will be discussing in the wake of Justice Anthony Kennedy's announced retirement from the Court.  Decisions like Roe v. Wade and Obergefell v. Hodges are, obviously, of great concern to a great many.  But for criminal justice reformers, there is one particular precedent, Harmelin v. Michigan, 501 U.S. 957 (1991), that I think should become a focal point for aggressive advocacy seeking to overrule a lousy Eighth Amendment precedent.

Harmelin, as many know, was the Supreme Court's 1991 fractured decision that rejected an Eighth Amendment challenge to Michigan's imposition of a (1) mandatory (2) life without parole sentence for (3) mere possession of 672 grams of cocaine.  I have numerically labeled the three potent essentials of Harmelin, because each part has worked in modern times to functionally preclude any successful constitutional challenges to just about (1) any mandatory sentencing statutes or (2) any life without parole sentences or (3) any drug possession sentences.  (Thanks to the recent Graham and Miller rulings, some juvenile offenders have some (small) protection against some extreme sentences, but those Eighth Amendment rulings have not been of any help to older offenders.)

As discussed here a few months ago, in a terrific recent First Circuit opinion while denying rehearing en banc in United States v. Rivera-Ruperto, No. 12-2364 (1st Cir. Feb 27, 2018) (available here), Judge David Barron lamented how judges "have no choice but to approve mandatory 'forever' sentences ... so long as they can hypothesize a rational reason for the legislature to have thought that the underlying criminal conduct was as serious as the large quantity drug possession at issue in Harmelin."  In so doing, Judge Barron highlighted not only questionable elements of the Harmelin ruling, but also stressed the possible impact of "two lines of Supreme Court precedent that have developed since Harmelin was decided" (referring to Alleyne and Graham/Miller).  Though not quite calling for Harmelin to be overruled, Judge Barron, writing on behalf of the entire First Circuit, makes clear that he is urging SCOTUS to reconsider the "three-decades old, three-Justice concurrence in Harmelin."

The author of the key "three-Justice concurrence in Harmelin" was, of course, Justice Anthony Kennedy, and no other member of the current Court was serving when Harmelin was decided.  So, once Justice Kennedy's replacement is seated, it will be a whole new Court available to reconsider Harmelin without any existing member eager to make the case that Harmelin was right.  Moreover, as the retired Justice Stevens noted in this interesting 2010 speech about Harmelin, Chief Justice Roberts' concurrence in Graham could be read as an indication he might be open to a return to the more defendant-friendly Eighth Amendment approach as set forth in Solem.  And, as noted in this prior post, the newest Justice, Neil Gorsuch, is seemingly more often voting in favor of federal criminal defendants in contested cases than against them.   We know Justice Thomas does not like the Harmelin precedent, but that is because he does not think the Eighth Amendment limits the length of prison sentences at all.  And Justice Alito seems unlikely to want to expand the reach of the Eighth Amendment (though I have long believed he nearly signed on to Chief Justice Roberts' Graham concurrence).  We do not know who will be replacing Justice Kennedy, so we cannot yet make informed speculations about how he or she might vote on this issue.  But if Prez Trump picks someone in the mold of Justice Gorsuch, that could mean yet another Justice with an open mind on these kinds of issues.

Notably, the Justices have already decided to take up a case concerning the Eighth Amendment for next Term, Timbs v. Indiana.  Though that case only technically concerns "whether the Eighth Amendment's excessive fines clause is incorporated against the states under the Fourteenth Amendment," perhaps Justices engaged already by the topic of possibly excessive financial sanctions might want to give some more thought to possibly excessive prison punishments.  More to my main point, I sincerely think criminal defense lawyers and advocates should be trying regularly and persistently to "litigate against" each of the three potent essentials of Harmelin by arguing against the constitutionality of (1) extreme applications of mandatory sentences and/or (2) extreme applications of life without parole sentences and/or (3) extreme applications of drug possession sentences.  Shrewd arguments for those facing extreme sentences ought to include a claim of unconstitutionality even applying Harmelin, but also be sure to preserve a claim that Harmelin is no longer good law.

I am not confident the Court will be eager to reconsider Harmelin anytime soon, but very slim chances may have gone up just a little with Justice Kennedy's retirement.  And the best and really only chance to get Harmelin before the Court is to keep asking and asking and seeking and seeking and knocking and knocking.

July 1, 2018 in Assessing Graham and its aftermath, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Saturday, June 30, 2018

CNN premiering new film "American Jail"

As detailed at this link, CNN Films will premiere on Sunday, July 1 at 8 pm on CNN a feature titled "American Jail." Here is the website's brief description of the film: "In this provocative and personal film, Academy Award-winning director Roger Ross Williams explores the forces that fuel America's sprawling prison system." The film weblink has additional content assembled, including links to these short excerpts from the film:

CNN also has this new article headlined "5 facts behind America's high incarceration rate," and here are the "5 facts" this article reports:

June 30, 2018 in Prisons and prisoners, Scope of Imprisonment, Television | Permalink | Comments (0)

Wednesday, June 27, 2018

Recommending FAMM's great new report "Everywhere and Nowhere: Compassionate Release in the States"

FammFamilies Against Mandatory Minimums (FAMM) now has at this link its big new report on compassionate release programs authored by Mary Price under the title "Everywhere and Nowhere: Compassionate Release in the States."  Here is how the report and related resources are introduced:

“Everywhere and Nowhere: Compassionate Release in the States,” is a comprehensive, state-by-state report on the early-release programs available to prisoners struggling with certain extraordinary circumstances, such as a terminal or age-related illness.

The report takes a deep dive into the regulations and requirements of these programs in each state, including the varying categories of release, eligibility criteria, and reporting. The analysis also reveals a troubling number of barriers faced by prisoners and their families when applying for early release.

The report is accompanied by a comparison chart, 21 recommendations for policymakers, and 51 individual state memos.

Here are more links to the resources from this report:

And here is an excerpt from the Executive Summary:

We were gratified to learn that 49 states and the District of Columbia provide some means for prisoners to secure compassionate release.  But we were dismayed to discover that very few prisoners actually receive compassionate release.

This report summarizes our findings. It describes the barriers and the best practices we uncovered and illustrates them with selected examples drawn directly from our research on individual states. Above all, we found that every state could improve compassionate release. Accordingly, this report closes with a set of recommendations for policymakers interested in bringing their state programs in line with best practices.

June 27, 2018 in Offender Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

The Sentencing Project effectively reviews "Trends in U.S. Corrections"

The folks at The Sentencing Project late last week published this document, titled "Trends in U.S. Corrections," which serves as an effective fact sheet compiling major developments regarding the scope of imprisonment in the US criminal justice system over the past several decades. The short document has lots of effective graphs reporting on lots of demographic realities of prison populations, and here is a bit of its prose on two particular issues:

Sentencing policies of the War on Drugs era resulted in dramatic growth in incarceration for drug offenses.  Since its official beginning in the 1980s, the number of Americans incarcerated for drug offenses has skyrocketed from 40,900 in 1980 to 450,345 in 2016.  Furthermore, harsh sentencing laws such as mandatory minimums keep many people convicted of drug offenses in prison for longer periods of time: in 1986, people released after serving time for a federal drug offense had spent an average of 22 months in prison.  By 2004, people convicted on federal drug offenses were expected to serve almost three times that length: 62 months in prison.

At the federal level, people incarcerated on a drug conviction make up just under half the prison population.  At the state level, the number of people in prison for drug offenses has increased ninefold since 1980, although it has begun declining in recent years.  Most of these people are not high-level actors in the drug trade, and most have no prior criminal record for a violent offense....

The number of people serving life sentences continues to grow even while serious, violent crime has been declining for the past 20 years and little public safety benefit has been demonstrated to correlate with increasingly lengthy sentences.  The lifer population has nearly quintupled since 1984.  One in nine people in prison is now serving a life sentence and nearly a third of lifers have been sentenced to life without parole.

June 27, 2018 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Tuesday, June 26, 2018

"For Justice and Decarceration, Enact Second-Look Sentencing"

The title of this post is the headline of this new commentary authored by Steven Zeidman in the Gotham Gazette. Here are excerpts:

Regardless what one thinks of presidential pardons, we should reflect upon a simple truth — convictions and sentences meted out at one point might not be appropriate decades later.  That is especially true for many people currently serving life or massive prison sentences.

Many have argued for sentence commutations for specific classifications of people. In recent years, the Supreme Court has recognized that judges sentencing young people, even for violent crimes, must consider lack of maturity, impulsivity, and the inherent potential for change, and so reformers are asking courts to resentence those serving long prison terms for crimes committed when they were young. Many people advocate for medical parole or compassionate release for the elderly and infirm.  Others focus on people deemed to be low-level, non-violent drug offenders.

At the heart of the problem, however, are all the people serving draconian sentences for crimes committed when they were adults and who are not, at least not yet, suffering from any debilitating illness or in any other “special” category. In fact, it is the “normalcy” of so many cases that highlights the issue we must confront....

Last year, the venerable American Law Institute, a non-governmental organization of judges, lawyers and academics, approved the first-ever revisions to the historic Model Penal Code.  The MPC, taught in virtually every law school, was developed in 1962 to introduce uniformity and coherence to the myriad criminal codes in the 50 states, and serves as a model across the country.  The update to the Code took more than 15 years to complete and yielded a comprehensive 700-page report.

The ALI focused specifically on sentencing in order to address the decades of punitiveness that led to the current state of mass incarceration, made all the more shameful by the significant racial disparities in American jails and prisons. One recommendation in particular addresses the epidemic of 2.2 million people behind bars. The Code now calls for state legislatures to enact a “second look” provision; to create a mechanism to reexamine a person’s sentence after 15 years no matter the crime of conviction or how long the original sentence. If the original sentence remains unchanged, it would be revisited every ten years thereafter.

While many will sound the alarm for “truth-in-sentencing” or the need for finality, the second-look provision asks a very basic question — are the purposes of sentencing better served by a sentence modification or by adhering to the original sentence imposed many years earlier? The commentary to the Code cites a host of utilitarian reasons why long sentences should not be frozen in time, suggesting that “governments should be especially cautious” and act with “a profound sense of humility” when depriving people of their freedom for most of their adult lives.

The commentary notes further that new developments might show that old sentences are no longer empirically valid, as current risk assessment methods claim to be better at predicting risk of recidivism than those previously used. Similarly, new rehabilitative approaches might be discovered for people who at the time of their sentencing were thought resistant to change.

The second-look provision is bold and unprecedented — to actually redress the past 50 years of mass incarceration requires nothing less, as most proposed criminal justice solutions and reforms are prospective and have no impact on those people currently in prison. Further, executive clemency in the form of sentence commutation has also proven to be of limited utility as Presidents and Governors are loath to exercise this power to any serious and meaningful degree.

Second-look allows for mid-course correction if warranted by some measure of changed circumstances -- major changes in the offender, his family situation, the crime victim, or the community — that merit a different sentence.  It is consistent with the growth of restorative justice that seeks to move away from the punishment paradigm of the last several decades.  Second-look also allows the sentencing determination to be made in a calmer atmosphere than existed at the time of the original sentencing, so that any notoriety, outside pressure, or inflamed passions may have abated.

Bills have been introduced in the New York State Legislature regarding parole eligibility for people who are least 55 years old and have served at least 15 years of their sentence, and while the devil may be in the details, they are not insurmountable.  There will be costs associated with establishing second-look processes but money will ultimately be saved as more people are sent home.  Releasing people from prison is often controversial and even one crime committed by a releasee can threaten to shut down any second-look process, so there must be carefully constructed guidelines, created by myriad stakeholders, to ensure the independence of the decision-makers, and that all decisions are consistent, defensible, and transparent.

Mass incarceration is not just about unnecessarily incarcerating masses of people.  It is about unnecessarily keeping masses of people in prison for decades.  A sentence once imposed is not thereby automatically rendered, just, fair and appropriate in perpetuity.  Ultimately, second-look mechanisms are meant to recognize and value the possibility of change and transformation, and to intervene when drastically long sentences are indefensible.

Regular readers should know that I am a big fan of second-look sentencing mechanisms, so I am a fan of this commentary even though it does not fully engage with the reality that second-look provisions in the new MPC are only critical because of the MPC's advocacy for abolishing parole mechanisms. Parole mechanisms (as well as robust use of clemency powers) served for the bulk of the 20th Century to help address many of the problems identified in this commentary. That said, I would favor a world with both a well-structured parole mechanism and second-look sentence provisions so that both the executive branch (via parole) and the judicial branch (via resentencings) can and will review the propriety and necessity of a sentence over time.

I have written about a number of second-look concerns and related issues in a a number of article through the years, and here is just a sampling of these writings:

June 26, 2018 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Monday, June 25, 2018

"Outraged By Kids In Cages? Look At Our Entire Juvenile Justice System."

The title of this post is the headline of this notable new HuffPost commentary authored by lawprof Cara Drinan, who is the author of The War on Kids: How American Juvenile Justice Lost Its Way (and who will be guest-blogging here come this August). Here are excerpts:

Last week, the nation witnessed an abrupt reversal from the White House. After claiming for days that he did not have the authority to address the family separation crisis at the border, President Donald Trump appeared to do just that with the stroke of a pen....

Trump’s reversal this week is progress; it’s a step in the right direction away from the inhumanity that the nation witnessed at the border. But let’s also be clear: There are vulnerable kids in cages in every state across America whose cases will not be affected by the president’s new order. In fact, on any given day there are approximately 50,000 juveniles being held in American correctional facilities, thousands of whom are in adult jails and prisons.

Despite inventing the juvenile court model in the late 19th century, the United States today is an international outlier in the severity of its juvenile justice practices. Today, every jurisdiction has some provision that permits a child to be charged as if they were an adult, and 23 states set no minimum age for employing this legal fiction.

Juveniles convicted in adult court are subject to lengthy mandatory minimums that were drafted with adults in mind. Juveniles can be housed in adult correctional facilities despite being extremely vulnerable to the risks of sexual and physical assault in those locations. Youth are subject to conditions of confinement that were designed for the most dangerous adult offenders, including mechanical restraints and even solitary confinement. Until 2005, we were the only developed nation to execute people for juvenile crimes, and today we are the only country that sentences children to die in prison.

Just like the migrant children crossing the border with their parents, American youth accused of a crime are typically traumatized and vulnerable. Our juvenile justice practices have hit poor, minority communities the hardest. Black youth are five times as likely as white youth to be detained, even as overall detention rates have fallen....

As we seek an end to family separation and the horrors of kids in cages at border facilities, we should also take a moment to reflect on our own domestic practice of keeping kids in cages. We should urge lawmakers to enact age-appropriate sentencing laws that reflect what brain science tells us: that juvenile brains really are different and that most kids simply outgrow delinquent tendencies. At the same time, we should offer education, substance-abuse treatment and therapy to those kids who enter the system rather than simply warehousing them and exacerbating their underlying trauma.

Just like the children of asylum-seekers crossing into America, juveniles accused of a crime are deserving of care and solicitude rather than condemnation and cruelty.

June 25, 2018 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (5)

Friday, June 22, 2018

"Gideon Incarcerated: Access to Counsel in Pre-Trial Detention"

The title of this post is the title of this new article authored by Johanna Kalb now available via SSRN.  Here is the abstract:

As the population of incarcerated persons has swelled in local, state, and federal facilities around the country, the infrastructure supporting the attorney-client relationship is under increasing stress.  The result is an array of new cases about the difficulties of lawyering in jails and prisons.  These cases challenge the lack of private space for legal visits, reductions in visiting hours, remote carceral placements, interference with legal mail, and monitoring of legal phone calls and legal email.  Despite (or perhaps because of) these mounting challenges, many courts have become less receptive to Sixth Amendment claims from people behind bars, putting the right to counsel at risk.

This Article traces the hidden ways in which mass incarceration has worked to degrade the right to counsel, both in fact and in law, for incarcerated criminal defendants.  It then proposes possibilities for reinvigorating the Sixth Amendment’s protections for incarcerated defendants, through intersecting strategies for regulation and structural litigation, with the ultimate goal of breaking our national reliance on pretrial detention.  Building on a 50-state survey of the jail standards governing the attorney-client relationship, the Article illustrates how the Sixth Amendment’s protections are currently understood by those who must facilitate them, and then proposes a new litigation strategy to catalyze reform.

June 22, 2018 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (5)

Wednesday, June 20, 2018

Suggesting home confinement as an incarceration alternative to avoid family separation back home

Tyler Cowen has this notable new commentary bringing home a controversy over immigration policies.  The piece is headlined "American Families Shouldn't Be Separated, Either: What if more parents, when convicted of crimes, were sentenced to house arrest for the benefit of their children?".  Here is how it starts and ends:

One of the worst American policies today is the decision of President Donald Trump’s administration to separate many immigrant parents from their children after they illegally cross the U.S. border.  Obviously, a case can be made for enforcing the border, but deliberate cruelty is never a good idea.  Those children — innocent victims all of them — will likely be traumatized for life.  I am uncomfortably reminded of the U.S.’s long history of separating parents and children from the days of slavery and during Native American removal and extermination.

If you agree with me on this, I’d like to push you one step further.  It’s horrible to forcibly separate lawbreaking parents from their young children, but we do that to American citizens, too.  According to one 2010 study, more than 1.1 million men and 120,000 women in U.S. jails and prisons have children under the age of 17.  These separations can be traumatic, and they help perpetuate generational cycles of low achievement and criminal behavior.

These problems are especially pressing for female prisoners and their children.  From 1991 to 2007, the number of children with a mother in prison more than doubled, rising 131 percent. About two-thirds of the women in state prisons are there for nonviolent offenses.  Sixty percent of those women have children under the age of 18, and in one survey one-quarter of the prisoners’ children were under the age of 4. Forty-one percent of the women in state prison had more than one child.

I have a simple proposal: Let’s take one-tenth of those women and move them from prison to house arrest, combined with electronic monitoring.  That would allow for proximity to their children.  If the U.S. isn’t plagued by a subsequent wave of violent crime — and I don’t think it will be — let us try the same for yet another tenth.  Let’s keep on doing this until it’s obviously not working.  In some of these cases the court might rule that the mother — especially if she is prone to child abuse or substance abuse — will not have full custody rights to her children.  Many other children, though, will benefit, and even visitation rights can help a child....

One estimate suggests that 11 percent of the children of imprisoned mothers end up in foster care.  This is not an area of investigation where data collection has been thorough or systematic, another sign of our neglect of the issue.  Nonetheless it seems that after the arrest of a parent, treatment of the children by the police is irregular across the country and often poorly handled.

In citing this evidence, I don’t mean to normalize the current treatment of illegal immigrant families — I consider it a moral disgrace.  What I am saying is that our treatment of outsiders is rarely an accident, and it so often mirrors how we have been treating each other all along.  That is yet another reason to be nicer to those who are most vulnerable.

June 20, 2018 in Collateral consequences, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (4)

Monday, June 18, 2018

Attorney General Sessions laments state recidivism data and impact of Johnson ACCA ruling

Attorney General Jeff Sessions today delivered these remarks to the National Sheriffs' Association Annual Conference, and his comments covered lots of criminal justice ground that I do not recall him previously speaking about directly. The speech is worth reading in full because of all it reveals about how AG Sessions' looks at crime and criminals, and here are just some of the comments that caught my attention:

This is a difficult job, but when rules are fairly and consistently enforced, life is better for all — particularly for our poor and minority communities.  Most people obey the law. They just want to live their lives. They’re not going to go out and commit violent crimes or felonies.

As my former boss, President Reagan used to say, “Most serious crimes are the work of a relatively small group of hardened criminals.”  That is just as true today as it was back then.  That’s why we’ve got to be smart and fair about how we identify criminals and who we put behind bars and for how long....

I want to call your attention to something important.  A few weeks ago, the Department of Justice’s Bureau of Justice Statistics released a new report on the recidivism rate of inmates released from state prisons in 30 states.  This is the longest-term study that BJS has ever done on recidivism and perhaps the largest.  It was designed by the previous administration. The results are clear and very important. The results are of historic importance.  The reality is grim indeed.

The study found that 83 percent of 60,000 state prisoners released in 2005 were arrested again within nine years.  That’s five out of every six.  The study shows that two-thirds of those — a full 68 percent — were arrested within the first three years. Almost half were arrested within a year — one year — of being released.

The study estimates that the 400,000 state prisoners released in 2005 were arrested nearly 2 million times during the nine-year period — an average of five arrests each.  Virtually none of these released prisoners were arrested merely for probation or parole violations: 99 percent of those arrested during the 9-year follow-up period were arrested for something other than a probation or parole violation.

In many cases, former inmates were arrested for an offense at least as serious — if not more so — as the crime that got them in jail in the first place. It will not surprise you that this is often true for drug offenders.

Many have thought that most drug offenders are young experimenters or persons who made a mistake.  But the study shows a deeper concern.  Seventy-seven percent of all released drug offenders were arrested for a non-drug crime within nine years.  Presumably, many were arrested for drug crimes also.  Importantly, nearly half of those arrests were for a violent crime. We can’t give up....

This tells us that recidivism is no little matter.  It is a fact of life that must be understood.  But overall, the good news is that the professionals in law enforcement know what works in crime.  We’ve been studying this and working on this for 40 years.

From 1964 to 1980, the overall violent crime rate tripled.  Robbery tripled. Rape tripled.  Aggravated assault nearly tripled. Murder doubled.  And then, from 1991 to 2014, violent crime dropped by half. Murder dropped by half.  So did aggravated assault.  Rape decreased by more than a third, and robbery plummeted by nearly two-thirds.

That wasn’t a coincidence.  Between that big rise in crime and that big decline in crime, President Reagan and the great Attorney General Ed Meese went to work.  There was the elimination of parole, the Speedy Trial Act, the elimination of bail on appeal, increased bail for dangerous criminals before trial, the issuing of sentencing guidelines, and in certain cases, mandatory minimum sentences.

We increased funding for the DEA, FBI, ATF, and federal prosecutors. And most states and cities followed Reagan’s lead.  Professionalism and training dramatically increased in local law enforcement.  These were the biggest changes in law enforcement since the founding of this country.  These laws were critical to re-establishing public safety.

When a criminal knows with certainty that he is facing hard time, he is a lot more willing to confess and cooperate with prosecutors.  On the other hand, when the sentence is uncertain and up to the whims of the judge, criminals are a lot more willing to take a chance....

The certainty of a significant and fixed sentence helps us get criminals to hand over their bosses, the kingpins and the cartel leaders — and helps remove entire gangs and criminals from the street.  Left unaddressed these organizations only get richer, stronger, more arrogant and violent placing whole neighborhoods in fear.

Law enforcement officers understand that. Sheriff Eavenson and NSA have been critical allies in the fight to preserve mandatory minimums for a long time — and I want to thank you for your strong advocacy.  Many doubt their value.  Maybe this is obvious, but a recidivist can’t hurt the community if he is incarcerated.  A lot of people who would have committed crimes in the 1990s and 2000s didn’t because they were locked up.  Murders were cut in half after 1980....

Look, our goal is not to fill up the prisons.  Our goal is to reduce crime and to keep every American safe.  We should not as a policy keep persons in prison longer than necessary. But clear and certain punishment does in fact make America safer....

One of the most important laws that President Reagan signed into law was the Armed Career Criminal Act.  That’s the law that requires a minimum 15- year sentence for felons caught with a firearm after their third robbery or burglary conviction.

These are not so-called “low-level, nonviolent drug offenders” who are being picked on.  These are criminals who have committed multiple serious offenses.  In 2015 — after 30 years on the books — one critical line of the law was struck down by the Supreme Court as being too vague.

But because of this impactful ruling, every federal prosecutor lost one of their most valuable tools and they ask me for help regularly.  Just one example is Jeffrey Giddings of Oregon.  He had more than 20 convictions since 1991. He was let out of jail after the Court ruling and only 18 days later shot a police officer and held two fast food employees hostage.  He has now been sentenced to another 30 years in prison.  And the last thing he did before being put back in jail was to lash out in a tirade of profanity at police....

More than 1,400 criminals — each convicted of three felonies — have been let out of jail in the three years since the Court ruling.  And so far, more than 600 have been arrested again.

On average, these 600 criminals have been arrested three times since 2015.  A majority of those who have been out of prison for two years have already been arrested again. Here in Louisiana, nearly half of the released ACCA offenders released because of this court ruling have already been rearrested or returned to federal custody....

In this noble calling, all of us in this room are leaders. The NSA is fulfilling its responsibility in this regard. We must communicate sound principles to our policy leaders and to the American people when it comes to reducing crime:

  • A small number of people commit most of the crimes;
  • Those who are jailed for crimes are very likely to commit more crimes—often escalating to violent crimes — after their release; and
  • Congress and our legislatures must consider legislation that protects the public by ensuring that we incapacitate those criminals and deter others

And so the point is this: we should always be looking for effective and proven ways to reduce recidivism, but we must also recognize that simply reducing sentences without reducing recidivism unfairly creates more victims.

This Department of Justice under President Trump is committed to working with you to deliver justice for crime victims and consequences to criminals. We want to be a force multiplier for you.

The President has ordered us to back the women and men in blue and to reduce crime in America. And that’s what we intend to do. We embrace that mission and enforce the law with you.

There is a bit of rich irony to the Attorney General extolling the importance and value of "clear and certain punishment" just before lamenting a SCOTUS ruling that struck down a punishment as too vague to be clear or certain in any way.  That irony aside, I am not at all surprised to see him highlight the depressing new data, first blogged in this prior post, revealing terrible recidivism numbers among those released from state prisons in 2005.  I am not sure from where the ACCA-post-Johnson-release recidivism data comes, but I am sure all these numbers fuel the AG's belief that we should always be inclined to (over-)incarcerate in efforts to improve public safety.

June 18, 2018 in Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences | Permalink | Comments (2)

Sunday, June 17, 2018

Focus on fathers behind bars on Father's Day

Last month, to mark Mother's Day, I collected in this post a lot of commentary about mothers in prison.  I have noticed far less comparable commentary to mark  Father's Day (perhaps because everyone is busy debating what Phil Mickelson did yesterday).  But I have seen these two new pieces authored by Pat Nolan:

June 17, 2018 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (3)

Thursday, June 14, 2018

"The New Dynamics of Mass Incarceration"

Download (15)The title of this post is the title of this notable new publication from The Vera Institute of Justice.   Here is much of its introduction:

After decades of continuous growth, the United States’ prison population began to plateau in the new millennium as the nation entered an era of criminal justice reform aimed at lowering the footprint of incarceration.  This seemed to herald the beginning of the end for mass incarceration.  Since 2007, when the country hit a peak of nearly 800 people in prison per 100,000 working age adults — over 1.6 million people total — overall prison incarceration has declined by about 1 percent on average each year.  The new downward trajectory of incarceration in the United States has paralleled a reckoning with the mounting costs of confinement and a growing awareness that incarceration in America was — in the words of a 2014 National Research Council report — “historically unprecedented and internationally unique,” and did not have the promised impact on public safety. (See “A brief history of mass incarceration: From unified growth to an era of reform” at page 8.)

Legislative and policy reforms have not brought a swift reversal of mass incarceration, however.  Even prison population trends — long used as convenient barometer of criminal justice reform’s progress — show that unwinding the nation’s overreliance on incarceration will be a longterm endeavor.  At the current pace, it will be 149 years until U.S. prison incarceration rates are as low as they were in 1970. (See Figure 1 at page 6.)

At the same time, while aggregated national prison population data indicates slow decline, it cannot be the sole indicator used to measure the progress made in the nation’s recent efforts to reduce incarceration.  Prison populations are slow to change after the implementation of most policy or practice changes, and thus provide an inadequate metric by which to measure and adjust the immediate impact of reforms — or regressive legislation.  Furthermore, a reliance on aggregate prison data fails to acknowledge or measure the tremendous variation in incarceration trends from state to state and within states, and ignores a significant locus of incarceration: local jails — county- or municipally-run facilities that primarily hold people arrested but not yet convicted of a crime.  For example, while much of the country is locking fewer people in jails and prisons, Kentucky is doing the opposite. If jails and prisons continue to grow in Kentucky as they have since 2000, everyone in the state will be incarcerated in 113 years. A comprehensive look at disparately reported metrics for the nation’s 50 state prison systems and 2,872 local jail jurisdictions is necessary to more accurately account for the headway made thus far in reversing mass incarceration.

To accomplish this goal, this report proposes a wider set of metrics by which to analyze incarceration trends to supplement the old standard of state prison population: 1) prison admissions; 2) jail admissions, 3) pretrial jail populations and 4) sentenced jail populations.  When considered together, this combination of metrics better captures the complexity of contemporary incarceration trends at the state and local level, makes the patterns that underlie national statistics discernable, and provides a starting point for deeper investigation into the particular context of individual counties’ justice systems....

As this report will discuss, studying all the moving parts of the incarceration system reveals a more messy truth: that there is no single way to characterize the current state of mass incarceration. A single trend of unified growth across states and counties, and in both prison and jail incarceration, characterized mass incarceration’s rise. But that has fragmented into four distinct incarceration trends, depending on how and where incarceration is measured:

  • some jurisdictions have seen meaningful overall declines in both prison and jail incarceration; 
  • others have seen stagnation at high incarceration rates; 
  • still others have seen shifts between prisons and jails in place of real reductions to the footprint of incarceration; and 
  • some have seen unchecked growth.
Ultimately, unwinding mass incarceration will require the particular alchemy of data-driven policy and political will, sustained by pressure from grassroots advocates and litigation. But only by acknowledging the realities in thousands of jurisdictions across the country can researchers, policymakers, and the public identify where reform is still only a promise and target attention and resources to drive change. Without understanding how local jail populations and county-level prison admissions have evolved over time, it will be difficult to have a real sense of how state and local systems are interacting, which problems to solve, or if progress is being made at all.

This new Mother Jones article about this new Vera report sums up its takeway via its extended headline: "The Era of Mass Incarceration Isn’t Over. This New Report Shows Why. 'Mass incarceration has a different face.'"

June 14, 2018 in Prisons and prisoners, Recommended reading, Scope of Imprisonment | Permalink | Comments (2)

Lamenting the ripples of Judge Persky's recall

John Pfaff has authored this recent Washington Post commentary under the full headline "California ousts an elected judge. Everybody loses. The recall of Aaron Persky in the Stanford swimmer sexual assault case will make judges harsher, and thwart progress on perils of mass incarceration."  Here are excerpts (and readers should click through to the original for the multitude of links supporting the various points presented):

California voters last week recalled a judge for the first time in more than 85 years.  The politics of punishment are already pathological; the recall will make them worse.... As an academic who studies criminal justice, I have opposed the recall effort since I first heard about it because of potential consequences that reach well past Persky’s now-former courtroom: The recall will make judges more punitive, thwart progress toward scaling back mass incarceration and — though Turner and Persky are both white — hurt minorities disproportionately.

A central reason the United States punishes its citizens more than any other country is that actors in our criminal justice system face more political pressure than they do elsewhere.  Only this country allows judges to be elected, which 39 states choose to do. It’s a consistent theme: We are also the only country that elects its prosecutors. While a concern in the Andrew Jackson era about corrupt appointment processes drove the decision to elect judges, more recent concerns about the costs of a politicized judiciary have led to increasing calls to return to appointing them.

In criminal justice, the costs of politicization are unambiguous: They make judges more punitive.  The empirical studies on judges and crime tell a consistent story.  Judges sentence more aggressively as their election dates near and as their elections become more contested.  Elections make judges nervous, and nervous judges are harsh judges.

This harshness is entirely logical.  Judges are harsh because the costs of mistakes are asymmetric.  There is little downside to harsh sanctions, because the error costs are invisible: How do you show that someone would not have reoffended had they left prison sooner?  The costs of being overly lenient, however, are inescapable.  That sort of failure produces an identifiable victim for political opponents to capitalize upon.

The recall turned on a slightly different asymmetry but one that equally pushes judges toward severity. An overly lenient sentence will be seen as insulting the victim, while an overly harsh one will be seen as unfair to the defendant.  The former error, as the Persky recall demonstrates, is costlier (unless, perhaps, the defendant is politically powerful).

Defenders of the recall dismiss this concern by pointing out that recalls are rare. But the lesson here isn’t only about recalls.  The Persky case makes clear to judges and their detractors alike that judges can lose their jobs — in a recall, in a primary, in a general election — if just one or two decisions anger someone with sufficient political capital to oppose them.  The Persky recall campaign highlighted only five decisions out of thousands that the judge handed down.  Persky was cleared of any wrongdoing by California’s Commission on Judicial Performance, and public defenders in Santa Clara were quick to argue that he was a fair judge.  Even the prosecutor in Santa Clara opposed the recall. [Professor Michele] Dauber, however, is a politically well-connected professor at a nationally acclaimed law school with strong media ties.  The success of her campaign tells judges, and the politically powerful who are unhappy with their decisions, that these campaigns can work even with little evidence, as long as there are one or two bad cases to point to.

The recall’s political costs are already apparent.  Not only did Democratic legislators pass new mandatory minimum sentences for sex offenses in response to the recall to make sure they looked tough enough on crime, but public defenders in California also report that judges seem harsher now, out of fear of being targeted next.

Some defenders of the recall concede that it may make judges harsher, but only regarding sex crimes.  The judges, they say, are smart enough to limit what they have learned to the facts of the recall. But this is overly optimistic. Judges have no idea what issue will trigger the next recall or primary challenge, only that such campaigns can work....

The recall will make judges more aggressive, and in ways that will never be neatly confined to the issues in the Turner and Persky cases.  More people will be sent to prison, and that increase won’t make us safer. And since a majority of people in prison are black or Hispanic, the impact of this toughness will fall disproportionately on minorities.  For those hoping to see the United States become a less punitive place, the recall’s success is disappointing.

A few of many prior posts on the Persky recall:

June 14, 2018 in Scope of Imprisonment, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (6)

Wednesday, June 13, 2018

Notable new analysis of US incarceration levels and recent (modest) changes

Ted Gest over at The Crime Report has this details summary of an even more detailed analysis of US incarceration levels and their changes in recent years. The summary is headlined "Incarceration Decrease? Drop in Prison Numbers Called ‘Anemic’," and here are excerpts:

Although the US prison population has declined over six years, after increasing for nearly four decades, a new analysis by researcher Malcolm C. Young, published by the Center for Community Alternatives, concludes that the nation is not reducing prison populations at a pace that would end mass incarceration in the foreseeable future.

A report issued in January by the Bureau of Justice Statistics of data through 2016 found that prison populations decreased in 33 states that year — more states than had experienced decreases in any recent year. The average decrease was three percent. In 42 states, prison populations were lower than they had been recently.  Just eight states increased their prison populations to record high numbers.

The downturn it documented, while perhaps marking the beginning of an end to three-and-a-half decades of increases, “is anemic to the point of listlessness,” says Young, a longtime advocate of cutting prison populations. If the numbers of inmates continue to decrease only at the rate they did between 2014 and2016, there will still be more than a million people incarcerated in prison in 2042. The nation wouldn’t reach the goal of groups like #Cut50.org to reduce prison populations to half of what they are today for another 50 years, until 2068.

Moreover, the current rate of decrease may not hold, according to Young. The prospects for a more rapid de-incarceration are poor unless and until many more states use strategies that have been effective in the handful of states that are significantly reducing prison numbers, Young believes....

Young found that prospects that most of the 13 states responsible for much of the national decrease will continue to reduce their prison populations are good. For example, Massachusetts has the second-lowest incarceration rate in the nation (after Maine), and the Vera Institute of Justice predicts further decreases. New Jersey will likely continue to reduce its prison population as a result of pretrial reforms signed by Gov. Chris Christie that took effect last year. In New York State, further decreases are likely if officials can encourage fewer prison commitments from areas outside of New York City.

On the other hand, California, which decreased its prison population by 40,926 in six years to comply with a US Supreme Court ruling, increased its prison population in 2016 by 0.9 percent. California corrections officials predict an annual 0.8 percent increase in coming years. In Illinois, Gov. Bruce Rauner cut the prison population, incurring little opposition from the same Republicans who savaged his Democratic predecessor’s more modest efforts. Were he to lose his bid for reelection, it is not a given that a Democratic administration would carry his plan forward.

Since 2010, Texas decreased its prison population by 6,749 (4.1 percent). Prospects that the trend will continue are iffy because state legislators have been considering new sentencing enhancements.

Young found that decreases in the 14 states that have demonstrated a capacity to reduce prison populations have been “episodic.” Recently enacted reforms have encountered opposition. In Louisiana, advocates have been concerned that legislators will roll back recently enacted reforms designed to reduce incarceration. In Utah, reforms that relied on treatment and housing programs are at risk because of a lack of funding for alternative programs. In Florida, legislative reforms have not led to the reductions in prison populations for which advocates hoped....

Young calls for reexamining the effectiveness of prison-reduction strategies. “[Hopes to] to end mass incarceration can’t be grounded in a fiction that an annual one percent reduction in prisoners will get us anywhere, or that limited successes in a few jurisdictions will end mass incarceration in the country as whole.”

His report contends that national, state and local officials should turn for guidance to states that have achieved significant, lasting reductions in prison incarceration and steer clear of approaches that have failed to produce results.

Malcolm Young's full report, which is titled Prisoners in 2016 and the Prospects for an End to Mass Incarceration, is available at this link.

June 13, 2018 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

"The Impact of Proposition 47 on Crime and Recidivism"

ImagesThe title of this post is the title of this notable new report from the Public Policy Institute of California. Here is the report's conclusion:

Proposition 47 continues to be the subject of much debate.  The reform — which reduced penalties for certain lower-level drug and property offenses — has undoubtedly played a significant role in California’s recent efforts to prioritize the state’s prison and jail space for higher-level offenders. Prison and jail incarceration levels declined substantially under Prop 47.  We also observe sudden drops in arrests and jail bookings.

The reduced reliance on incarceration raised concerns among some observers about Prop 47’s impact on public safety. We find no convincing evidence that violent crime increased as a result of Prop 47.  Though there has been a recent uptick in violent crime, this trend appears to have started prior to the reform. Additional factors unrelated to criminal activity — a change by the FBI in 2014 that expanded the definition of rape, and significant under-reporting of violent crimes from 2008 to 2014 by the LAPD — contributed to the observed increase.  Excluding violent crime data from the LAPD shows that recent increases in violent crime rates in California were comparable to those of similar states.

Our analysis does find some evidence of Prop 47’s impact on property crime rates, which went up immediately after the law was implemented.  This increase has been primarily driven by larceny thefts, particularly thefts from motor vehicles and shoplifting.  We find the increase in the larceny theft rate in California to be nearly 9 percent higher than that of similar states. In 2016, reported shoplifting decreased notably, but we do not see signs of a reduction in thefts from motor vehicles. Considering the high costs of incarceration in California, this highlights the need for alternative crime-reducing strategies, consistent with our earlier research assessing the impact of realignment on crime (see Lofstrom and Raphael 2013).

The policy goals of Prop 47 are to reduce contact with the criminal justice system and to reduce recidivism for lower-level drug and property offenders.  Our analysis, using detailed data from 12 California counties, shows declines in jail bookings as well as rearrest and reconviction rates under Prop 47.  We find the policy change reduced jail bookings for Prop 47 offenses by more than one-third.  Prop 47 also lowered the number of people booked into jail by nearly 50,000 in these counties during the year following its passage.

Lower rearrest rates for individuals released after serving sentences for Prop 47 offenses were driven by a reduction in rearrests for drug possession, while lower reconviction rates were driven by a drop in reconvictions for both Prop 47 property and drug offenses.  We find evidence that Prop 47 reduced both arrests by law enforcement and convictions resulting from prosecutions by district attorneys.  Reduced levels of correctional contact — which may allow for better continuity of employment and improved family and community stability — could be a factor in these lower recidivism rates.  However, given the sudden and noticeable decline in arrests after the reform, we are not able to separate the effects of Prop 47 on individual reoffending behavior from its effects on the practices of criminal justice agencies.

Prop 47 aimed to reduce recidivism rates by shifting resources from incarceration to mental health and substance-use treatment for lower-level drug and property offenders.  This redirection of state correctional savings to treatment interventions has only recently been allocated, and thus our recidivism analysis does not capture individuals released after the implementation of these programs.  A complete assessment of the impacts of Prop 47 will need to account for how increased interventions may affect crime, criminal justice contact, and recidivism, as well as responses by law enforcement to the reform.

Substantial reductions in reoffending as a result of the treatment programs funded by Prop 47 savings seem unlikely as this funding represents a very small share of corrections spending in California.  However, the initiative offers opportunities for local agencies to create or expand promising programs.  It also requires that these programs be objectively evaluated, in hopes of identifying and scaling up successful interventions. As local agencies and the state learn more about which programs are effective in reducing recidivism, Prop 47 could provide a path toward the use of more cost-effective, evidence-based strategies within the criminal justice system.

One of several far-reaching corrections reforms, Prop 47 further decreased California’s reliance on incarceration: the state’s incarceration rate is now at levels not seen since the early 1990s.  Importantly, crime rates remain historically low, comparable to those in the 1960s.  While research so far has not revealed convincing evidence that violent crime has risen as a result of reforms, some property crimes have increased.  And though Prop 47 reduced recidivism rates for lower-level drug and property offenses, it is not clear to what extent this is driven by reduced reoffending, as law enforcement and prosecutorial changes likely contributed to the declines.  To counteract the increases in property crimes like shoplifting and thefts from motor vehicles — and to improve reentry outcomes of released offenders — policymakers and practitioners will need to work together to identify effective programs and policies that will reduce recidivism and maintain public safety

June 13, 2018 in National and State Crime Data, Offense Characteristics, Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (0)

Monday, June 11, 2018

Spotlighting the role of prisons and jails as our modern mental health facilities

Esquire has this lengthy piece on modern prison realities that is notable for both its content and its author.  The full title and subtitled reveals its contents and author:

'THIS PLACE IS CRAZY': Our mental-health-care system is broken.  Ten of every eleven psychiatric patients housed by the government are incarcerated. Here’s what this crisis looks like from the inside—a series of lost lives and a few rare victories—as reported by a prisoner-journalist.

Here is the full bio from the article of the article's author:

John J. Lennon, a contributing writer at The Marshall Project, has written for Vice, The Atlantic, and The New York Times.  He is currently in Sing Sing Correctional Facility in Ossining, New York.  He will be eligible for parole in 2029.

And here is a snippet from the piece worth reading in full:

Nearly 20 percent of the fifty-two thousand prisoners in New York’s prison system — ten thousand in all — have mental illness.  The Department of Corrections and Community Supervision (DOCCS), which runs the state’s correctional facilities and supervises its parolees, is not alone: Nearly four hundred thousand of 2.2 million prisoners nationwide have a psychiatric diagnosis. Compare that with the thirty-eight thousand patients that the country’s state-run psych hospitals can accommodate.  The math is as easy as it is shocking: Ten out of every eleven psychiatric patients housed by the government are behind bars.

The financial toll is enormous: Treating prisoners with mental illness costs twice as much as providing community-based care.  State prisons spend an estimated $5 billion each year to imprison nonviolent offenders with a disorder.  As the National Alliance on Mental Illness says, “In a mental-health crisis, people are more likely to encounter police than get medical help.”  Jails and prisons have become our de facto asylums.

June 11, 2018 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Tuesday, June 05, 2018

"Open Roads and Overflowing Jails: Addressing High Rates of Rural Pretrial Incarceration"

The title of this post is the title of this new report authored by Marc Levin and Michael Haugen. Here is its executive summary:

The axiom that a person is considered innocent of a criminal act until he or she has been proven guilty is a bedrock principle of the American criminal justice system.  Yet in many jurisdictions, it appears to have been forgotten. The pretrial population of defendants has significantly increased — particularly in rural areas of the country. Jails in smaller jurisdictions are responsible for an outsized share of jail population growth.  Indeed, from 1970 to 2014, jail populations grew by almost sevenfold in small counties but only threefold in large counties.

This paper explores why this growth may have occurred and makes numerous recommendations to reduce pretrial populations, particularly in rural America.  The first place to start is by reducing the number of offenses carrying the potential for arrest and jail time — the overcriminalization of our society must be reversed.  The next step is to restore our historical commitment to individual liberty and the presumption of innocence by following these five guiding principles of pretrial justice policy:

•  There should be a presumption of pretrial release without conditions or cash bond, grounded in the American maxim that people are innocent until proven guilty.

•  Conditions of release, if any, should be the least restrictive to ensure public safety and appearance at trial.

•  Courts — after due process — should have the authority to deny bail in the most serious cases involving highly dangerous defendants after determining that a compelling government interest exists and there are no possible conditions under which the defendant could be released that would reasonably protect public safety and ensure re-appearance.

•  The burden should be on the state to prove the need for conditions of release or denial of bond in an adversarial proceeding where the accused is present.

•  Individual judicial consideration should be required for each accused.

For a host of reasons, ranging from limited resources to dispersed populations, addressing pretrial incarceration in rural areas is a particularly complex undertaking.  Also, there are many moving parts to implementing changes in a deliberate manner that produce sustainable results without unintended consequences.  Ultimately, as rural communities across the country take many different paths to addressing the meteoric rise in rural pretrial incarceration over the last few decades, they must not lose sight of the destination: a constitutional system that produces greater public safety with less collateral damage.

June 5, 2018 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (5)

Prison Policy Initiative reports on "States of Incarceration: The Global Context 2018" and "States of Women’s Incarceration: The Global Context 2018"

NATO_OH_2018A pair of new reports from the Prison Policy Initiative compares US states to 166 countries on incarceration in order to highlight how each state relies on prisons and jails relative to the rest of the world. These report are titled "States of Incarceration: The Global Context 2018" and "States of Women’s Incarceration: The Global Context 2018." Here are snippets from the first (and clicking through to see the graphics is a must for both):

Oklahoma now has the highest incarceration rate in the U.S., unseating Louisiana from its long-held position as “the world’s prison capital.”  By comparison, states like New York and Massachusetts appear progressive, but even these states lock people up at higher rates than nearly every other country on earth . Compared to the rest of the world, every U.S. state relies too heavily on prisons and jails to respond to crime....

If we imagine every state as an independent nation, ... every state appears extreme.  23 states would have the highest incarceration rate in the world — higher even than the United States.  Massachusetts, the state with the lowest incarceration rate in the nation, would rank 9th in the world, just below Brazil and followed closely by countries like Belarus, Turkey, Iran, and South Africa.

In fact, many of the countries that rank alongside the least punitive U.S. states, such as Turkmenistan, Thailand, Rwanda, and Russia, have authoritarian governments or have recently experienced large-scale internal armed conflicts.  Others struggle with violent crime on a scale far beyond that in the U.S.: El Salvador, Russia, Panama, Costa Rica, and Brazil all have murder rates more than double that of the U.S.  Yet the U.S., “land of the free,” tops them all....

For four decades, the U.S. has been engaged in a globally unprecedented experiment to make every part of its criminal justice system more expansive and more punitive.  As a result, incarceration has become the nation’s default response to crime, with, for example, 70 percent of convictions resulting in confinement — far more than other developed nations with comparable crime rates.

Today, there is finally serious talk of change, but little action that would bring the United States to an incarceration rate on par with other stable democracies.  The incremental changes made in recent years aren’t enough to counteract the bad policy choices built up in every state over decades.  For that, all states will have to aim higher, striving to be not just better than the worst U.S. states, but among the most fair and just in the world.

June 5, 2018 in Prisons and prisoners, Scope of Imprisonment, Sentencing around the world, Who Sentences | Permalink | Comments (2)

Monday, June 04, 2018

Calling Professor Pfaff: Attorney General Sessions announces 311 new Assistant United States Attorney positions

Though there are many elements and nuances to the teachings of Professor John Pfaff, I think of him first and foremost for the notion that, when concerned about modern mass incarceration, we all ought to pay a lot more attention to the role and work of prosecutors and ought to focus a lot more on how we handle violent crime and criminals.  Thus, I could not help but think of the fine Professor upon seeing this official press release today from the Department of Justice. 

Here is the press release's full title: "On the 500th Day of the Trump Administration, Attorney General Sessions Announces 311 New Assistant United States Attorney Positions: Largest Increase in AUSAs in Decades Allocates Prosecutors to Focus on Violent Crime, Civil Enforcement, and Immigration Crimes."  Here is its full text:  

Today, on the 500th day of the Trump Administration, Attorney General Jeff Sessions announced that the Department of Justice is taking a dramatic step to increase resources to combat violent crime, enforce our immigration laws, and help roll back the devastating opioid crisis.  In the largest increase in decades, the Department of Justice is allocating 311 new Assistant United States Attorneys to assist in priority areas.  Those allocations are as follows: 190 violent crime prosecutors, 86 civil enforcement prosecutors, and 35 additional immigration prosecutors.  Many of the civil enforcement AUSA’s will support the newly created Prescription Interdiction & Litigation Task Force which targets the opioid crisis at every level of the distribution system.

"Under President Trump's strong leadership, the Department of Justice is going on offense against violent crime, illegal immigration, and the opioid crisis — and today we are sending in reinforcements," said Attorney General Jeff Sessions.  "We have a saying in my office that a new federal prosecutor is 'the coin of the realm.'  When we can eliminate wasteful spending, one of my first questions to my staff is if we can deploy more prosecutors to where they are needed. I have personally worked to re-purpose existing funds to support this critical mission, and as a former federal prosecutor myself, my expectations could not be higher. These exceptional and talented prosecutors are key leaders in our crime fighting partnership.  This addition of new Assistant U.S. Attorney positions represents the largest increase in decades."

The statements that this is the largest increase in federal prosecutors in decades leads me to wonder, based largely on Professor Pfaff's work, if this personnel development may be more consequential to defining the future size and composition of the federal prison population than any statutory sentencing reform and prison reform bills being considered in Congress.  

June 4, 2018 in Criminal justice in the Trump Administration, Scope of Imprisonment, Who Sentences | Permalink | Comments (5)

Tuesday, May 22, 2018

"Against Life Without Parole"

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

Over 40,000 people in the United States today are serving life without parole sentences (LWOP) — more than triple the number in 1992.  This figure understates the case, since parole has become increasingly rare for the 140,000 prisoners serving life sentences that ostensibly permit parole. I argue that LWOP sentences should be abolished.

After reviewing the facts about LWOP, I show that of the standard reasons for punishment only retributivism can hope to justify it.  I investigate the varieties of retributivism and argue that plausible versions do not entail or even recommend it.  So, we can reject LWOP without abandoning retributivism — an important point, strategically and perhaps morally as well.

I then make the positive case for abolition, on three main grounds.  First, few (if any) people are fully culpable for their criminal acts; we should mitigate their punishment accordingly.  Second, abolishing life without parole — and indeed all life sentences — is likely to bring many benefits: to prisoners, their loved ones, the community in general, and to those who decide for abolition and who carry it out.  Among these is the promotion of certain attitudes it is good for people to have, including faith in humanity.  Finally, there’s a certain pointlessness in continuing to punish a person who has undergone changes of character that distance them greatly from the person who committed the crime many decades earlier.

May 22, 2018 in Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (12)

Sunday, May 20, 2018

Vera Institute of Justice reports on "People in Prison 2017"

Via this web page and this document, the Vera institute of Justice has now providing a valuable new "up-to-date view of the number of people in state and federal prisons." Here is the summary of their efforts from the print document:

Effective advocacy and policy making require up-to-date information. Vera Institute of Justice (Vera) researchers collected data on the number of people in state and federal prisons on December 31, 2017 to provide timely information on how prison incarceration is changing in the United States.  This report fills a gap until the Bureau of Justice Statistics (BJS) releases its next annual report — likely in late 2018 or early 2019 — which will include additional data, such as population breakdowns by race and sex.

At the end of 2017, there were an estimated 1,489,600 people in state and federal prisons, down 15,800 from yearend 2016 (1 percent decline).

There were 1,306,300 people under state prison jurisdiction, 9,900 fewer than in 2016 (0.7 percent decline); and 183,300 in the federal prison system, 5,900 fewer than in 2016 (3.1 percent decline).  The prison incarceration rate in the United States was 457 people in prison per 100,000 residents, down from 465 per 100,000 in the previous year, representing a 1.8 percent drop. (See Figure 1.)  This brings the rate of prison incarceration down 14 percent since its peak in 2007.

The overall decline in the national prison incarceration rate was driven by the large decrease in the number of people in federal prisons, as well as greater than 5 percent declines in several states with large prison populations, such as Illinois, Louisiana, and Maryland.  However, the declines were not universal.  Mass incarceration is still on the rise in some states, such as Kentucky and Tennessee.  (See Table 1 for a summary of the jurisdictions with the highest and lowest prison population counts, rates, and percent changes from 2016.)

In addition to this summery, this document has a bunch of clear and informative charts with total prison populations and rates and changes for every state and region from 2007 to 2017.

May 20, 2018 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Thursday, May 17, 2018

Updated accounting of America's aging prison population

In this post four years ago, I spotlighted a notable white paper from The Osborne Association titled ""The High Costs of Low Risk: The Crisis of America’s Aging Prison Population." Today, via this Crime Report piece, I see that a new version of this paper is available at this link.  Here is the start of the Crime Report's review of its coverage:

At least one-third of the U.S. prison population will be over 50 by 2030, according to a white paper released Thursday by the Osborne Association.

The association, a New York-based advocacy group that works with justice-involved people and their families, cited figures showing that even as states are working to reduce prison populations, the number of older adults in prison and jail is projected to grow by a “staggering 4,400 percent” in the 50-year period between 1980 and 2030—to an estimated 400,000 people.

According to statistics quoted by the researchers, adults over 50 comprised just three percent of the total incarcerated population in 1993, representing 26,300 individuals.

“Justice isn’t served by keeping elderly people locked up as their bodies and minds fail them and they grow infirm and die,” said Elizabeth Gaynes, president and CEO of the Osborne Association, which advocates for improved conditions in prisons and jails, better discharge planning, and expanded compassionate release of the elderly and infirm. “It’s both inhumane and inefficient.”

According to the report, entitled “The High Cost of Low Risk: The Crisis of America’s Aging Prison Population,” extreme sentences doled out during the tough- on-crime era, as well as limited mechanisms for compassionate release, have driven what is now a costly and inhumane crisis that the corrections system is unequipped to manage.

The medical costs of caring for a burgeoning elderly population behind bars alone will add to the strains of resource-strapped corrections systems, many experts have said. According to data analyzed by the American Civil Liberties Union, it costs twice as much to incarcerate someone over 50; in some cases, it may cost up to five times more when medical costs are added.

Between 40 percent and 60 percent of prisoners over 50 have some type of mental illness or cognitive impairment, according to data from the Bureau of Justice Statistics. Some prisons are setting up makeshift hospice wings and opening nursing wards for people with serious cognitive degeneration.

Elsewhere, inmates suffer from such pronounced dementia that they are unable to follow rules, and may not remember why they are incarcerated. For many with cognitive, visual, or hearing loss, a diminished capacity leads to behaviors that are mistaken for disobedience, subjecting them to punishments such as solitary confinement.

Prisons were never designed to be geriatric care facilities and this surging elder incarceration comes at a high cost,” wrote the authors of the Osborne report. At the same time, research by the Pew Center on the States shows that incarcerated people over 50 pose little public safety risk, and have the lowest recidivism rate as any other inmate demographic.

May 17, 2018 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (15)