Sunday, October 19, 2014

Reviewing Alabama's (somewhat successful) use of sentencing guidelines to reduce prison growth

ImagesAs highlighted in this lengthy local article, headlined "Sentencing reform has slowed, not stopped, inmate growth," sentencing and sentencing reform in Alabama has been a dynamic process that includes sentencing guidelines intended to steer more offenders away from prison. Here are some details:

The state's sentencing structure has a huge impact on the prison population, which is at about 190 percent the capacity it was designed for. A 24-member panel — the Prison Reform Task Force — is working with the Council of State Governments Justice Center to analyze the system and find ways to reduce overcrowding, reduce recidivism and improve public safety.

Andy Barbee, research manager of the CSG's justice center, said Alabama's switch in October 2013 to presumptive guidelines — which judges are required to use unless there's a mitigating or aggravating factor to be considered — has accelerated a downward trend in the number of sentences to prison and the lengths of those sentences. Those guidelines, however, only apply to drug and theft cases.

That trend started in 2006, when voluntary guidelines were made available for judges to use. Judges still had the option to choose existing sentencing laws, but had to acknowledge for the record that voluntary guidelines were considered, Barbee said. The state took those guidelines a step forward when they approved legislation in 2012 that established the presumptive guidelines....

The new guidelines use a point system that weighs factors such as past criminal history and facts of the crime to impose a sentence, said Bennet Wright, executive director of the Alabama Sentencing Commission. The commission is the research arm of the criminal justice system. It's responsible for implementing changes when laws change and making annual recommendations for improvements to the governor, Legislature, chief justice and attorney general.

Wright said the purpose of creating the presumptive guidelines was to provide uniform sentencing practices across Alabama counties, and to make sure the system is fair, effective and encourages community supervision for nonviolent offenders.

But because there are scarce drug rehabilitation and mental health resources and those vary county by county, more structured and uniform assessments of those in the criminal justice system need to be in place to make sure services are effective. "At some point, the state will have to make a bigger investment in community services and supervision programming," Wright said. "Matching offenders with the right services lowers the likelihood that they'll commit more crimes."

The presumptive guidelines are binding unless a judge decides to downgrade the sentence based on facts, or unless an aggravating factor that might warrant a harsher sentence is proved, Wright said. Barbee said the switch to presumptive guidelines was a bold move in the right direction that took political courage, but the next step is to make sure the structure in place continues to evolve. He said similar changes need to happen with parole.

Although the number of arrests, sentences to prison and lengths of sentence are decreasing, the prison population is still on the rise. However, the presumptive guidelines are projected to slow the tremendous growth that the prison population would have seen otherwise, Wright said. "The presumptive guidelines are not going to drastically lower the prison population," Wright said. "It would be a modest reduction at best, but more than likely, it would result in a stabilization. The point is, if you didn't have them, the prison population would just grow, grow, grow."

Much of the current prison population was punished under a set of laws that provided more serious punishments to a larger class of offenses, Barbee said. "Simply waiting on the guidelines to have an effect won't get the system where it wants to be until many years out," Barbee said. "Therefore it's critical, if the state wants to have a near-term impact on the crisis level of overcrowding, it looks beyond sentencing."

Barbee said there are some caveats with the state's sentencing guidelines. Burglary is considered a violent crime, regardless of whether anyone else was involved during the burglary.... He also said Alabama has one of the lowest felony theft thresholds in the country at $500. The threshold was recently raised from $250, he said, and most states are at about $1,000 or $2,000.

The fact that the state's laws don't consider weight or amount when it comes to drug crimes also makes it more likely that punishment might not match the crime. He said any amount of drug possession other than marijuana — whether it's one pill or a pound of cocaine — is a felony.

October 19, 2014 in Advisory Sentencing Guidelines, Offense Characteristics, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (1) | TrackBack

Friday, October 17, 2014

"Cities Look for Ways to Get Free of Empty Jails"

The title of this post is the headline of this intriguing Wall Street Journal piece from earlier this week, which carried the subheading "Drop in Crime and Lighter Sentences Swell the Number of Jails for Sale."  Here are excerpts:

After rising rapidly for decades, the number of people behind bars peaked in 2009 and has been mostly falling ever since. Inmates at federal and state prisons stood at 1.57 million in 2013, down 2.7% from a peak of 1.62 million in 2009, according to the Bureau of Justice Statistics.

In some states, the decline has been more pronounced, including New York, which saw an 8.8% decline in federal and state inmates, and California, which saw a 20.6% drop. The inmate population in city and county jails has also fallen, even as some states have shifted prisoners to those facilities....

The incarceration rate is declining largely because crime has fallen significantly in the past generation. In addition, many states have relaxed harsh sentencing laws passed during the tough-on-crime 1980s and 1990s, and have backed rehabilitation programs, resulting in fewer low-level offenders being locked up. States from Michigan to New Jersey have changed parole processes, leading more prisoners to leave earlier. On a federal level, the Justice Department under Attorney General Eric Holder has pushed to reduce sentences for nonviolent drug offenders.

While the reduction in crime and incarceration has many social benefits, municipalities are having a tough time finding new uses for prisons. Old office buildings can be converted to apartment buildings or hotels. Outdated government buildings can be used for retail or as schools. Even some prisons, mainly those with historic architecture and located in city centers, have been converted in recent years to hotels, including Boston’s Charles Street Jail, which is now known as the Liberty Hotel.

But most prisons are drab structures located in rural areas, offering few opportunities for reuse. The result is that the number of prison properties on the market is rising. New York state has closed 17 prisons and juvenile-justice facilities since 2011, following the rollback of the 1970s-era Rockefeller drug laws, which mandated lengthy sentences for low-level offenders.

So far, the state has found buyers for 10 of them, at prices that range from less than $250,000 to about $8 million for a facility in Staten Island, often a fraction of what they cost to build. It hopes to sell most of the remainder.

In Texas, where more nonviolent offenders are being put in rehabilitation programs, the state has closed three prisons since 2011. Among them is a 1,060-bed facility called the Central Unit that the city of Sugar Land is seeking to buy from the state and convert to an aviation-focused business park, given its proximity to an airport.

October 17, 2014 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Tuesday, October 14, 2014

Does the Constitution limit the age at which a juve killer can be tried as an adult?

The question in the title of this post is promopted by this AP story emerging from Pittsburgh sent my way by a helpful reader.  The story is headlined "Boy, 10, Charged As Adult In Death Of 90-Year-Old Woman," and here are the details:

A 10-year-old boy has been charged as an adult in the beating death of a 90-year-old woman over the weekend in northeastern Pennsylvania. Prosecutors in Wayne County said the boy was visiting his grandfather, the caretaker of Helen Novak, in Tyler Hill on Saturday, when county emergency responders got a call reporting her death.

District Attorney Janine Edwards said in a statement that the boy’s mother brought him in to the state police barracks at Honesdale the same afternoon and reported that her son had told her that he had gone into the woman’s room and she yelled at him. The boy told his mother that “he got mad, lost his temper and grabbed a cane and put it around Novak’s throat,” police said. Advised of his rights and interviewed by a trooper, he said he “pulled Novak down on the bed and held the cane on her throat and then punched her numerous times,” authorities said.

State police said the boy told them that he went to his grandfather and told him that the woman was “bleeding from her mouth” but denied he had harmed her, but later told him that he had punched the woman and put a cane around her neck. Police said an autopsy done Monday at Wayne Memorial Hospital in Honesdale indicated blunt force trauma to the victim’s neck, and the death was ruled a homicide....

The boy was charged as an adult with criminal homicide and aggravated assault, with the prosecutor’s office noting that the crime of homicide “is specifically excluded from the juvenile act” and therefore “a juvenile who commits the crime of homicide is charged as an adult.”  The boy was held without bail pending an Oct. 22 preliminary hearing.

I am pretty sure that, prior to the Supreme Court's Eighth Amendment ruling in Miller, this 10-year-old killer would have be facing a mandatory LWOP sentence under Pennsylvania law. Now, I believe, state law provides only a mandatory minimum of 20 or 25 years for this kind of killer. Especially for those still troubled by the Miller ruling and eager to have some juve killers get LWOP sentences (such as folks talking here over at Crime & Consequences), I wonder if they would assert that even a kid still in elementary school could and should never even have a chance to live outside a cage for a crime like this.

October 14, 2014 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (5) | TrackBack

Friday, October 10, 2014

Oklahoma has impressive early success with revised earned credit program

This local article, headlined "Most Oklahoma inmates granted early release since March have stayed out of trouble," reports on another positive state criminal justice reform effort. Here are the details:

Santajuan M. Stepney was released from prison in March after serving less than half of a 10-year sentence for possession of marijuana.  By mid-July, he was back in prison, this time sentenced to two years for beating his wife in Canadian County.

Stepney, 31, was among about 1,500 inmates granted an early release by the Corrections Department after they had good-behavior credits restored through the once-obscure Earned Credits program.  The releases in question began in March, according to the agency.

A state lawmaker recently questioned the program, saying restoration of good-behavior credits and early release is in the name of saving money, while Corrections Department officials have defended its expanded use....

Jerry Massie, a spokesman for the Corrections Department, said Stepney and inmate Brian Harvey, who was granted early release in March, are the only members of the group who’ve returned to prison since being set free under the Earned Credits program....

Last week, Rep. Aaron Stiles told The Oklahoman he believes Robert Patton, who was hired as the Corrections Department’s executive director earlier this year, is directing staff to release inmates by restoring the good behavior credits that had been lost due to infractions while behind bars.  Stiles said Patton is doing so to save money as the cash-strapped prison system continues to struggle with tight budgets and overcrowded prisons.

The lawmaker said “several” Corrections Department employees have contacted him about the mass release of inmates with good behavior credits restored.  He said some of the employees, who feared speaking openly, “made recommendations that certain people not be released, but they get overruled by upper level DOC administration.”

“It is all about saving money,” Stiles said last week. “They had 1,800 inmates in county backup. So how do you make room for 1,800 prisoners? Release 1,800 convicts early.”

The Earned Credits program has been around about 20 years, officials say, but it’s never been as widely used as it is now.  Essentially, the program allows inmates to have good-behavior credits restored if they’ve been lost as a result of misconduct. The program does not apply to inmates who are required to serve a minimum amount of their sentence, such as 85 percent crimes like rape, murder, and many sex crimes.

Terri Watkins, a spokeswoman for the Corrections Department, said increased use of the program isn’t all about saving money. She said it’s part of a series of changes made by Patton, and that those changes will continue in the future.

This partial report about early success with a revised corrections program in one state does not, obviously, prove conclusively that significant early releases can be achieved without a huge public safety impact. Nevertheless, given the ugly reality that recidivism rates for released prisoners can often exceed 40%, the folks in Oklahoma must be doing something right if only less than 0.15% of prisoners released early this year have committed a crime requiring requiring being sent back to prison so far.

October 10, 2014 in Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

Wednesday, October 08, 2014

Distinctive religious perspective on the drug war for the season

High-Holy-Days-the-Basics-cover500In the wake of the recent Jewish high holy days, I found especially notable and timely this recent commentary appearing in The Forward authored by Hanna Liebman Dershowitz.  The piece is headlined "A Drug Policy That Denies Repentance: We Are Ruining The Lives of Small Time Users," and here are excerpts:

We are emerging from the Day of Repentance — a time for contrition for misdeeds, focusing on self-improvement and making a fresh start.  But what about people who don’t have the luxury of wiping their slates clean, even for minor transgressions? Are our laws and policies robbing millions of citizens of their own opportunities to turn toward good, to achieve the possibility of teshuvah, atonement, that we claim for ourselves each year?

For decades this country has pursued a policy of mass arrest and imprisonment of people for possessing drugs. The consequences of being prosecuted for simple drug possession — conduct that does not harm other people’s bodies or property — can affect people for the rest of their lives, and wreak untold cost on our country and our society.

A criminal record can cripple job prospects and much more. Individuals with a record are often denied child custody, voting rights, business financing, professional licenses, student loans and public housing....

The United States has a higher level of incarceration than any other country. Today, more than 2.3 million people are behind bars in America. Almost one in four of them are there for drug offenses, many serving extensive mandatory minimum sentences. It is costing us dearly in lives and dollars.

And what has been gained? No appreciable reduction in use or in rates of addiction. By contrast, we have degraded the conditions that promote recovery for those who are addicted — such as access to treatment, access to support networks, gainful employment and education. It feels like we are tearing apart communities when we don’t need to. In 2012, upward of 1.5 million Americans were arrested for drugs. More than 80% of those arrests were for possession of small amounts.

Meanwhile, focusing too much attention on drug possessors often leads to perverse results. For example, in 2008, in California alone, 61,000 people were arrested for possession of small amounts of marijuana; that same year, 60,000 violent crimes in California went unsolved. When drug arrests are made, testing the drugs in crime labs often jumps ahead of testing rape kits and other evidence from violent crimes, because there is a suspect in custody and the courts need evidence to sustain the prosecution. In various ways, the focus on arresting drug users has atrophied our ability to address violent crime and other public safety threats.

Equally troubling, penalties for drug use fall disproportionately on people of color. Arrest rates of African-Americans for marijuana possession (the bulk of drug arrests) are many times higher — in some areas, as much as 10 times higher — than for whites in most United States cities, despite the fact that black and white people use drugs at similar rates. Although they make up 13% of America’s population, blacks make up fully 31% of arrests for drug offenses and more than 40% of incarcerations. A recent study found that prosecutors are twice as likely to pursue a mandatory minimum sentence for blacks as they are for whites. This is about dehumanizing and demoralizing large numbers of citizens and stripping them of their dignity. We as Jews should recognize and strenuously oppose these unfair and discriminatory practices.

Is this how we want our system to respond to this kind of nonviolent conduct? What does it mean to be a law-abiding citizen if a person cannot make the conscious choice to walk a positive path even after a transgression? Continuing consequences, especially for minor nonviolent acts, seem to render hollow the concepts of forgiveness, redemption and community healing.

The implications of policies should be particularly resonant to us during this season of renewal. We have fasted, made our amends and hoped we were inscribed in the book of life. We should abhor a system that erases other people’s chances to atone simply because those people chose an action we have singled out for disdain.

October 8, 2014 in Purposes of Punishment and Sentencing, Religion, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

Tuesday, October 07, 2014

Rolling Stone laments enduring casualties of drug war's mandatory minimums

ImagesRolling Stone magazine has just published this extensive "special report" titled "The Nation's Shame: The Injustice of Mandatory Minimums." The piece details the stories of seven notable low-level drug defendants serving high-level prison sentences. The piece has this subheading: "For decades, lawyers, scholars, and judges have criticized mandatory drug sentencing as oppressive and ineffective. Yet tens of thousands of nonviolent offenders continue to languish behind bars."  And here is a portion of the lead into the seven cases profiled:

Widely enacted in the Eighties and Nineties amid rising crime and racially coded political fearmongering, mandatory penalties — like minimum sentences triggered by drug weight, automatic sentencing enhancements, and three-strikes laws — have flooded state and federal prisons with nonviolent offenders.  Intended to ensure uniform discipline, these policies simply shifted discretion to prosecutors.  Judges lost latitude to tailor sanctions based on whether someone was a kingpin or courier, for example, while [Professor Mark] Osler says, prosecutors gained "a big hammer.  The easy way of doing things is to threaten people with a lot of time, and then plead them out," he says.  "But easy and justice don't go together very well."...

[T]he drug war is entrenched in decades of prison buildup. Between 1980 and 2010, state incarceration rates for drug crimes multiplied tenfold, while the federal drug prisoner population ballooned by a factor of 20.  Every year, taxpayers shell out $51 billion for drug war spending.  Meanwhile, 2.2 million people — or a quarter of the world's prisoners — crowd a system that exacts its harshest toll on the most vulnerable. Racism undermines the justice process from initial stop to sentence, and 60 percent of those incarcerated are people of color.  Rates of illiteracy, addiction, and mental illness are disproportionately high.

Amid utter congressional deadlock, sentencing reform is the only issue that has cut across partisan bickering to unite such normally irreconcilable voices as Rand Paul, Dick Durbin, Ted Cruz, Elizabeth Warren, Paul Ryan and John Conyers.  Yet the proposed Smarter Sentencing Act, which passed the Senate Judiciary Committee in January, has since run aground. The bill would halve key mandatory minimums, make relief under the Fair Sentencing Act available to 8,800 federal crack defendants locked up before 2010 and save $4 billion in the process.  More than 260,000 people have been imprisoned under federal drug mandatory minimums, and more will continue to cycle through the system — even as others are granted clemency — as long as reforms remain stalled.  At the state level, reforms without retroactive application strand drug defendants in prison even after the laws that put them there are reassessed as unjust.  The following seven cases epitomize the rigid regimes of the past, and the challenges involved in dismantling them.

October 7, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

Monday, October 06, 2014

Reviewing California's debate over lowering sentences through Prop 47

I have noted in a few prior posts some of the details of California's Proposition 47, which seeks to reduce penalties for certain offenders convicted of low-level property and drug crimes.  This new New York Times article, headlined "California Voters to Decide on Sending Fewer Criminals to Prison," discusses the current state of debate over Prop. 47.  Here are excerpts:

Twenty years ago, amid a national panic over crime, California voters adopted the country’s most stringent three-strikes law, sentencing repeat felons to 25 years to life, even if the third offense was a minor theft.  The law epitomized the tough-on-crime policies that produced overflowing prisons and soaring costs.

Now California voters appear poised to scale back the heavy reliance on incarceration they once embraced, with a measure that would transform several lower-level, nonviolent felonies into misdemeanors punishable by brief jail stays, if that, rather than time in a state penitentiary.  The referendum on Nov. 4 is part of a national reappraisal of mass incarceration.

To its advocates — not only liberals and moderates, but also an evangelical conservative businessman who has donated more than $1 million to the campaign, calling it “a moral and ethical issue” — the measure injects a dose of common sense into a justice system gone off the tracks. 

“Law enforcement has been on an incarceration binge for 30 years, and it hasn’t worked,” said George Gascón, the San Francisco district attorney and a former police chief who, bucking most of his counterparts around the state, is the main sponsor along with a former police chief of San Diego. For the large numbers of nonviolent offenders with mental health or substance abuse problems, Mr. Gascón said, “Incarceration doesn’t fix the problem.”

California has already been forced by federal courts to trim its prison population because of inhumane crowding, which it did mainly by sending more offenders to county jails.  Two years ago, in a previous referendum, voters took the worst sting off the three-strikes law, shortening the sentences of those whose third crime was a minor one.

The new initiative would have wider effects, altering penalties for low-level theft and drug-possession crimes that result in felony convictions, and sometimes prison terms, for thousands of nonviolent offenders each year.  Proposition 47, as it is called, would redefine thefts, forgery and other property crimes involving less than $950, and possession for personal use of drugs including heroin and cocaine, as misdemeanors — punishable by at most one year in a county jail, and often by probation and counseling. The changes would apply retroactively, lightening the penalties for thousands already in prison or jails....

The proposals here are modest compared with changes recently taken by other states to curb prison growth.  But Proposition 47 has drawn harsh attack from law enforcement officials, including most district attorneys and the association of police chiefs, which calls it “a dangerous and radical package” that will “endanger Californians.”...

In a poll in September conducted by the Public Policy Institute of California, 62 percent of voters said they supported the initiative, and only 25 percent said they opposed it. Proponents like Mr. Gascón and Darrell Steinberg, the Democratic president pro tem of the State Senate, say this shows that the public is far ahead of timid legislators, necessitating the unusual step of a ballot initiative....

But opinions could change, especially if the two sides mount television campaigns in coming weeks. One of the most outspoken opponents, Shelley Zimmerman, the chief of police in San Diego, has already gone on the offensive.  “Virtually all of law enforcement is opposed,” Chief Zimmerman said.  “It’s virtually a get-out-of-jail-free card” for 10,000 felons, many with violent histories.  She and other opponents have zeroed in on two details: Stealing a gun worth less than $950 and possessing date-rape drugs would no longer be automatic felonies....

So far, supporters of the proposal have a large financial advantage, raising more than $4 million as of last week, half of which had been used to get the measure on the ballot, compared to less than $300,000 for the opponents, with most of that donated by a law enforcement officers’ association.  Large donations in support have come from the Open Society Policy Center, a Washington-based group linked to George Soros; the Atlantic Advocacy Fund, based in New York; Reed Hastings, the chief executive of Netflix; and Sean Parker, the former president of Facebook. 

But the largest single donor is B. Wayne Hughes Jr., a conservative Christian businessman and philanthropist based in Malibu. In one of the most tangible signs yet of growing concern among conservatives about the cost and impact of incarceration, Mr. Hughes has donated $1.255 million....

Even if Proposition 47 passes, California will still lag behind many other states, including some that are politically conservative, in reforms that have achieved prison cuts with no increase in crime, said Adam Gelb, director of the Public Safety Performance Project of the Pew Charitable Trusts.  Just looking at the dollar threshold for theft or forgery felonies, he noted, Mississippi recently raised its cutoff to $1,000, and South Carolina to $2,000. “This reform may be modest,” Mr. Gascón acknowledged. “But California led the way early on in draconian sentencing, and now I’m hoping that these reforms, too, will have an impact on the state and the nation.”

Prior related posts:

October 6, 2014 in Offense Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Friday, October 03, 2014

SCOTUS preview guest-post: "Measuring the Dangerousness of Felonies for Sentencing Purposes"

ThIn this post I lamented that the Supreme Court this week did not grant cert on any new sentencing cases.  But there is still some sentencing fun on the SCOTUS docket thanks to the Justices seemingly never having enough fun with interpretations of the Armed Career Criminal Act.  Helpfully, Professor Stephen Rushin, who filed in an amicus brief in the latest ACCA case, was kind enough to prepare for posting here a thoughtful preview of a case to be argued to the Justices in early November.

With kudos and thanks to Prof Rushin for this material, here is his preview:

------

What criminal offenses pose the greatest risk of injury to others? This is the empirical question at issue in a case, Johnson v. United States, before the U.S. Supreme Court this coming term. The case stems from the Armed Career Criminal Act (ACCA), which provides for punishment enhancements for offenders previously convicted of burglary, arson, extortion, use of explosives, and any other felony that presents “serious potential risk of injury to another.”

Since the passage of the ACCA, courts and litigants have struggled to determine which felonies pose such a “serious potential risk of injury to another.” The Court has interpreted this so-called residual clause of the ACCA to cover a range of felonies, including attempted burglary and fleeing from a police officer in a motor vehicle.    

In Johnson, the Court must now decide whether the residual clause also covers the possession of a short-barreled shotgun. So how dangerous is mere possession of an unlawful weapon? Professors Evan Lee, Eric Johnson, and I recently submitted an amicus brief in the Johnson case, arguing that the ACCA ought to cover these sorts of weapons law violations. 

At first, our argument may seem counter-intuitive. How, after all, can mere possession ever pose a “serious potential risk of injury to another?” Well that depends on how you define a “potential risk of injury.” Admittedly, offenses like weapons possession cannot, or usually do not, injure another person directly. But that does not mean that such offenses do not pose “serious potential risk of injury to another.” Congress’s use of the word “potential” in conjunction with the word “risk” suggests that a felony need not be the direct or exclusive source of an injury in order to qualify under the residual clause. We read the ACCA to mean that any offense that facilitates or is otherwise meaningfully associated with highly injury-prone offenses “poses a serious potential risk of injury.”

Of course, this raises the next obvious question—to what extent are weapons law violations, like possession of a short barreled shotgun, associated with injuries to victims? In previous ACCA cases, the Court has turned to a wide range of statistical data to measure the dangerousness of various felony offenses. In each case, the Court has attempted to find accurate statistical measures of how frequently a particular felony offense leads to injuries. The Court then compares this to the approximate injury frequency of injuries stemming from the offenses explicitly enumerated in the ACCA—burglary, arson, extortion, and use of explosives. 

This basic methodology makes perfect sense. Since Congress specifically enumerated a small number of offenses as “violent felonies” in the ACCA, the Court should presume that any offense of equal or greater dangerousness also warrants inclusion under the residual clause. But in employing this methodology, the Court has often relied on weak statistical data.

In entering into this ongoing debate, my coauthors and I make a simple recommendation to the Court in our amicus brief. We suggest that the Court should use the National Incident Based Reporting System (NIBRS) in measuring the dangerousness of offenses under the ACCA residual clause. For the unfamiliar, we have traditionally recorded crime data in the U.S. via the Uniform Crime Reports (UCR), which primarily record aggregate-level information on the prevalence of eight major criminal offenses—homicide, aggravated assault, rape, burglary, larceny, arson, and auto-theft. With the exception of homicides, these UCR records little to no details about the circumstances surrounding each offense. Recently, though, the FBI has begun collecting additional crime data through the database known as NIBRS. This system requests information from local law enforcement agencies on 46 different offense categories. NIBRS also groups together criminal offenses into incident-level data. This means that if an offender commits two different offenses as part of a single criminal incident, NIBRS groups these two offenses together for data analysis purposes. For example, suppose that an offender commits an assault in the course of committing a burglary. Traditionally, the UCR would register that event as two separate criminal events. By contrast, NIBRS groups together these two criminal offenses into a single incident. Police agencies that use NIBRS also report information on the circumstances of each criminal incident, including whether the incident resulted in any physical injuries to victims.

Of course NIBRS is not perfect. The NIBRS database is not perfectly representative of the United States. Although NIBRS greatly expands on the number of offense categories traditionally used in the UCR, it still cannot capture every single offense category. Nevertheless, NIBRS represents perhaps the best statistical resource available for measuring the “potential risk of injury” associated with felony offenses. For one thing, NIBRS represents the largest and most comprehensive database on injuries associated with criminal offenses. In addition, because NIBRS groups together multiple offenses into incidents, it allows researchers to measure more accurately the risk associated with criminal offenses. And NIBRS allows the Court to compare the dangerousness of different felony offenses accurately because it uses a consistent methodology across reporting jurisdictions.

So how do weapons law violations stack up compared to the explicitly enumerated felonies listed in the ACCA? In a previous study, Evan Lee, Lynn Addington, and I found that weapons law violations like possession of a short-barreled shotgun were more frequently associated with injuries than burglaries, arsons, or extortions. 5.36 percent of incidents involving weapons law violations in 2010 led to some type of physical injury to a victim, compared to just 4.41 percent of extortions, 1.11 percent of arsons, and 1.02 percent of burglaries.

Of course, these sorts of statistics alone cannot resolve the question before the Court. But we argue that this data cuts in favor of including weapons law violations under the ACCA residual clause.

October 3, 2014 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (5) | TrackBack

Should advocates of federal criminal justice reform be rooting for Republicans to take control of Senate?

The question in the title of this post is prompted by the closing paragraphs of this new National Journal article. The article is headlined "How Republicans Stopped Being 'Tough on Crime': GOP lawmakers in Congress are moving toward prison reform. Is this the final frontier for bipartisanship?". Here are some extended excerpts from an article that reinforcement my sense that reform advocate might be wise to root for Republicans to have lots of success on Election Day next month:

[M]any Republicans in Congress are moving away from the tough-on-crime philosophy that dominated the Nixon, Reagan, and Bush eras. At a time when people complain about historic levels of gridlock, there is more bipartisan support for reforming the criminal-justice system than there has been in the past four decades.

This newfound Republican support isn't just the product of tokenism. Among the members of Congress who have cosponsored legislation on this issue are Sens. Rand Paul, John Cornyn, Chuck Grassley, Mike Lee, Rob Portman, and Orrin Hatch, along with Reps. Raul Labrador, Paul Ryan, and Jason Chaffetz.

"This certainly is something that has gained momentum among many Republicans — not all," Lee told National Journal. "There's still a number of Republicans who don't agree with me on this, that this ought to be a priority. But I've been pleased by the number of Republicans who have joined me in this effort."

Of course, that doesn't mean the Republican colleagues always agree with each other. Grassley recently blasted the Smarter Sentencing Act, which was introduced by Lee and Sen. Dick Durbin. The bill would allow federal judges to use their discretion when sentencing some nonviolent drug offenders, instead of having to obey mandatory minimums. Grassley said the bill would "put taxpayers on the hook for close to $1 billion in entitlement spending." What Grassley didn't mention was that the bill would also lead to $4 billion in budget savings over the next 10 years, according to the Congressional Budget Office.

Levin, the Right on Crime founder, says the financial burdens imposed by the justice system — which often disproportionately targets minorities and hamstrings those not wealthy enough to afford their own attorney — should especially outrage conservatives. "Look, I'm a free-market guy, so I say the fact that rich people can get a better car, nicer jewelry, that's all well and good. But here we're talking about justice," Levin said. "Conservatives ought to be particularly receptive to these things, and I think they are, because at some point it just becomes like a tax."

But Lee emphasized that sentencing reform isn't just a fiscal issue for Republicans. "There's no question that reforming our sentencing system could save us money. I want to point out, though, that that is not our primary objective in this," Lee told National Journal. "An even more important objective involves not the financial costs, but the human costs."

That human cost is very real. The violent-crime rate is the lowest it's been in 20 years, yet there hasn't been a corresponding decrease in incarceration. Nearly a third of the world's female prisoners are incarcerated in the U.S. Between 1991 and 2007, the number of children with a parent in prison increased by 80 percent—so widespread that Sesame Street recently aired a segment dealing with the issue.

The prison population is the oldest it's ever been. In West Virginia, 20 percent of the prison population is over the age of 50. This raises the question: What is the advantage of the U.S. spending billions of dollars to house prisoners who may not present any real public danger?...

Criminal-justice reform has united other odd couples like [Senators Rand] Paul and [Cory] Booker. In March, the Senate Judiciary Committee approved a bill put forward by Republican Sen. John Cornyn of Texas and Democratic Sen. Sheldon Whitehouse of Rhode Island that would try to triage the likelihood that a prisoner would commit another crime, if released. The law would also give time credits to "low-risk" offenders and allow some to complete their prison sentences under "community supervision."

Cornyn said it's time to move away from the one-size-fits-all approach to treating American prisoners. "When I went to law school, we'd learn in criminal law class that rehabilitation was always one of the goals of our criminal justice system. But honestly, in my lifetime, we've done a lousy job at rehabilitating people," Cornyn told National Journal. "Instead, they have taken an approach that's more like warehousing people."

Cornyn said he's confident that if the GOP retakes the Senate in November, prison reform will be one area where they will be able to work with the White House. Even Whitehouse — Cornyn's Democratic counterpart on this legislation — sees this as an upside to a possible Republican-controlled Congress. "Frankly, I think the biggest danger to these bills is not really on their substance. It's just the threat of partisan and obstructive mischief by the more extreme Republican senators," Whitehouse told National Journal. "The motivation for that mischief evaporates once they're in control."

There you have it — prison reform, the final frontier of bipartisan legislation. But as Levin points out, there's just one last thing for Republicans and Democrats working on the issue to sort out: "The only disagreement sometimes is who's gonna get the credit."

A few recent and older related prior posts:

October 3, 2014 in Elections and sentencing issues in political debates, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6) | TrackBack

Wednesday, October 01, 2014

"Prison bankers cash in on captive customers: Inmates' families gouged by fees"

The title of this post is the headline of this one part of some impressive reporting about the economic realities facing prisoners and their families being done by the Center for Public Integrity and CNBC.  Here is an excerpt from this piece that provides a basic summary:

JPay and other prison bankers collect tens of millions of dollars every year from inmates’ families in fees for basic financial services. To make payments, some forego medical care, skip utility bills and limit contact with their imprisoned relatives, the Center for Public Integrity found in a six-month investigation.

Inmates earn as little as 12 cents per hour in many places, wages that have not increased for decades. The prices they pay for goods to meet their basic needs continue to increase.

By erecting a virtual tollbooth at the prison gate, JPay has become a critical financial conduit for an opaque constellation of vendors that profit from millions of poor families with incarcerated loved ones.

JPay streamlines the flow of cash into prisons, making it easier for corrections agencies to take a cut. Prisons do so directly, by deducting fees and charges before the money hits an inmate’s account. They also allow phone and commissary vendors to charge marked-up prices, then collect a share of the profits generated by these contractors.

Taken together, the costs imposed by JPay, phone companies, prison store operators and corrections agencies make it far more difficult for poor families to escape poverty so long as they have a loved one in the system.

Here are links to additional related reporting as part of this project:

October 1, 2014 in Fines, Restitution and Other Economic Sanctions, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

Peculiar (judicial?) screed against evidence-based sentencing "fad" based on the "need to be realistic"?!!?

GalI have long been intrigued and generally impressed by the writings and work of Colorado state judge Morris Hoffman.  However, this new USA Today commentary by Judge Hoffman, headlined "Emptying prisons is no panacea: Deterring others matters as much as rehabilitation," has me scratching my head about what prompted a thoughtful judge to produce a peculiar screed against evidence-based sentencing.  At the risk of making this post much too long, I will reprint the whole commentary before explaining why it made my head hurt this morning:

Just days before Attorney General Eric Holder announced his resignation, the Department of Justice announced one of his signature achievements. After growing for decades, the federal prison population has started to decline.  The new data were greeted with wide acclaim, but before we embrace the idea that fewer prisoners is always good, let's step back and consider whether at least one of the drivers of our declining prison population is a good idea.

Like all humans, judges are susceptible to fads.  Anger management became a popular feature of American probationary sentences in the 1980s.  Teen courts and drug courts followed.  The new fad is "evidence-based sentencing."  It is both a refreshing attempt at rationality and a dangerous rejection of human nature.

Evidence-based sentencing purports to redirect judges' attention from old-fashioned retribution to enlightened deterrence and rehabilitation.  Judges across the country are attending innumerable evidence-based sentencing conferences that focus on how incarceration affects recidivism rates.  The claim is that incarceration costs much more than its deterrent benefits.  Judges should think twice before throwing away the key.

We don't need conferences to make that point.  One of the hidden truths of criminal justice is that most judges, including me, give criminals chance after chance before we sentence them to prison.  There are exceptions, such as serious violent crimes and drug crimes that carry mandatory prison sentences.  But, for the most part, defendants have to really work hard to land in prison.

We should applaud efforts to put data over gut instinct when trying to predict the future behaviors of our defendants.  But we also need to be realistic.  There's a reason science stinks at predicting individual behavior.  An almost infinite number of bits of data contribute to human decision-making, including the billions of base pairs in our DNA and a lifetime of brain-changing individual experiences, among other things.  Not to mention that unscientific interloper: free will.

There is a much more serious problem with evidence-based sentencing.  It ignores the most important reason we punish wrongdoers.  When I sentence a bank robber to prison, the idea is not just to deter him from robbing again ("specific deterrence").  I also want to deter other people who might be considering robbing a bank ("general deterrence").

General deterrence is what makes us a civilized society.  It is the glue that holds us together under the rule of law.  It is so deeply engrained, every human society that has left a record shows evidence it punished its wrongdoers.  Indeed, our tendency to punish wrongdoers is most likely an evolved trait, which we needed in order to keep our intensely social small groups from unravelling in selfishness.  By focusing on specific deterrence, evidence-based sentencing mavens ignore 5,000 years of civilized wisdom and 200,000 years of human evolution.

They seem to recognize this failing, but only half-heartedly.  They tend to downplay crimes such as rape and murder to focus on low-harm crimes.  But burglary and theft tear the social fabric more broadly simply because they are more frequent.  Indeed, low-harm crimes are often crimes of cold economic predation rather than hot emotion.  For them, deterrence can be more effective.  Giving thieves and burglars a stern lecture and probation, just because some social scientists tell us prison doesn't rehabilitate them, is a surefire way to increase thefts and burglaries.

Those of us fortunate enough to live in civilized societies owe that civilization to the rule of law, which means nothing without the bite of punishment.  Punishment must be merciful, but it should not be abandoned to misguided claims that it does not deter.

Candidly, this commentary has so many disconnected and illogical assertions, I have too many criticisms to fit into this blog space. But I can start by highlighting how curious it is that the AG's discussion of the reduction in the federal prison population, brought about largely through changes in federal drug sentencing policies and practices, leads to a state judge worrying we risk not punishing "thieves and burglars" enough to achieve general deterrence.  Moreover, AG Holder was bragging last week that in recent years we have lowered prison populations AND lowered crime rates.  What evidence-based sentencing seeks to do is find ways to better achieve both specific and general deterrence without continue to rely so heavily on the very costly and too-often-ineffective punishment of imprisonment.

More fundamentally, what really troubled me about Judge Hoffman's analysis is his misguided and harmful perspectives (1) that focused attention to data and evidence about imprisonment's impact on crime is a "fad," and (2) that only lengthy terms of incarceration constitute "real" punishment that can deter.  On the first point, I wonder if Judge Hoffman urges his doctors not to be caught up in the "fad" of practicing "evidence-based" medicine.  After all, given that  "almost infinite number of bits of data contribute" to human health (not to mention that "unscientific interloper, free will"), perhaps Judge Hoffman encourages his doctors to be "realistic" that he is going to die eventually anyway.  Indeed, perhaps we ought to be suspect about all efforts to improve and extend human life by "evidence-based [medicine] mavens [who] ignore 5,000 years of civilized wisdom and 200,000 years of human evolution" which shows we all end up dead anyway.

Truth be told, what is truly a "fad" in light of "5,000 years of civilized wisdom and 200,000 years of human evolution" is the extreme use of extreme terms of imprisonment that has come to define the modern American experience with punishment.  Brutal physical punishments and public shaming punishment have been the norm and the means use to deter crime in most other societies throughout human history (and in the US until fairly recently).  Moreover, all serious social and scientific research on human behavior has demonstrated that the swiftness and certainty of punishment, not its severity, is critical to achieving both specific and general deterrence.  That is one (of many) reasons evidence-based sentencing makes long-terms of imprisonment look a lot less effective, at least relative to its high costs, than various other possible punishments.

I could go on and on, but I will conclude by encouraging everyone to appreciate that evidence-based reforms in lots of settings often provoke these kinds of old-world reactions: typically, folks who benefit from or prefer an old-world "faithful" view about how they think the world works will be eager to question and seek to discredit reformers who suggest science and data provides a new perspective that requires significant reform and changes to the status quo.  And though I always hope to show respect for old-world "faithful" perspectives, I get worked up by attacks on evidence-based reforms because I am ultimately much more a creature of science than a creature of faith.

October 1, 2014 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (18) | TrackBack

"The Curious Disappearance of Sociological Research on Probation Supervision"

The title of this post is the title of this new paper available via SSRN. The piece strikes me as timely, intriguing and important. It is authored by sociologist Michelle Phelps, and here is the abstract:

At the start of the prison boom, scholars in the U.S. vigorously debated the future of “alternative” sanctions, particularly community supervision, and whether they represented a true avenue for potential decarceration or a widening of the net of social control.  Community supervision, particularly probation, was central to these debates and the empirical literature.  Yet as the carceral state ballooned, sociological scholarship on punishment shifted almost entirely to imprisonment (and, to a lesser extent, parole supervision), despite the fact that probationers comprise nearly 60 percent of the correctional population.

This article invites criminologists to turn their attention to sociological or macro-level questions around mass probation.  To help start this new wave of research, I provide an intellectual history of sociological research on probation and parole, review the national-level data available on probationers and probationer supervision today, and outline an agenda for future research.

October 1, 2014 in Criminal Sentences Alternatives, Data on sentencing, Detailed sentencing data, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

Wednesday, September 24, 2014

Is California's Prop. 47 a "common-sense" or a "radical" reform to the state's criminal laws?

The question in the title of this post is prompted by this lengthy new FoxNews piece headlined "California voters weigh 'radical' changes to justice system as prisons fill up." Here are excerpts:

Voters this fall, however, could approve big -- and some say "dangerous" -- changes to the state’s sentencing system, aimed in part at easing the overcrowding.  On the state ballot is a proposal that would dramatically change how the state treats certain “nonserious, nonviolent” drug and property crimes, by downgrading them from felonies to misdemeanors.

The measure, known as Prop 47, also would allow those currently serving time for such offenses to apply for a reduced sentence, as long as they have no prior convictions for more serious crimes like murder, attempted murder or sexual offenses. 

Businessman B. Wayne Hughes Jr., who has donated hundreds of thousands of dollars to push the ballot measure, told FoxNews.com the changes would affect Californians who are “over-incarcerated and over-unpunished.” 

“I saw Prop 47 as common-sense reform,” Hughes said. “I don’t see it as a radical reform.”

However, the measure is being slammed as dangerous by members of California’s law enforcement, including San Diego Police Chief Shelley Zimmerman.   Zimmerman told FoxNews.com “virtually the entire law enforcement community opposes Prop 47.”

“It will require the release of thousands of dangerous inmates,” she said. 

The proposition would reduce penalties for an array of crimes that can be prosecuted as either felonies or misdemeanors in California. This includes everything from drug possession to check fraud to petty theft to forgery.  Prop 47 would, generally, treat all these as misdemeanors, in turn reducing average jail sentences.  According to a state estimate, there are approximately 40,000 people convicted each year in California who would be affected by the measure.

“[Prop 47] allows the criminal justice system to focus in on more serious crimes,” Hughes said.

According to an analysis by the California Budget Project, state and local governments would save hundreds of millions of dollars every year.  The measure dictates the savings be split among three different areas, with 65 percent going to mental health and drug treatment programs, 25 percent going to K-12 school programs and 10 percent going to victim services.  The measure’s supporters say it also would help reduce California’s prison-overcrowding problem, an issue that has dogged the state for years.

The analysis by the California Budget Project found that the California prison population would “likely" decline if Prop 47 were implemented.  “If Proposition 47 reduced the prison population by just 2,300 individuals – through re-sentencing and/or reduced new admissions – the state could meet the court-ordered population threshold via the measure alone,” the analysis said.

However, Zimmerman argued that the proposition would only shift the burden from the state prisons to local law enforcement and communities.   “[Prop 47 is] not a sustainable or responsible way to reduce California’s prison population,” she said.

The California Police Chiefs Association also has come out hard against the proposition.  “Proposition 47 is a dangerous and radical package of ill-conceived policies wrapped in a poorly drafted initiative which will endanger Californians,” the association said....

Former Republican congressional candidate Weston Wamp agreed, saying Prop 47 "might not be perfect, but it’s a breath of fresh air to talk about an issue where there can be some agreement."  Wamp said if passed, he believes Prop 47 could have a positive effect on the nationwide prison reform movement.   "I think it’s realistic if you give people who are not violent criminals, if you give them an opportunity not to just stay behind bars but to make their lives better, you may see over a longer period of time is lower rates in recidivism and a better chance at taking care of the problems and paying the bills," he said. 

For now, it seems like the proposition’s supporters are connecting with voters. An August poll by the Field Research Corporation found that 57 percent of Californians were in favor of the measure, 24 percent were opposed and 19 percent were undecided. 

Prior related post:

September 24, 2014 in Offense Characteristics, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (3) | TrackBack

Tuesday, September 23, 2014

Highlights from AG Holder's big speech today at the Brennan Center for Justice

As noted in this prior post and as detailed in this official Justice Department press release, Attorney General Eric Holder gave a big speech today in New York at the Brennan Center for Justice's conference on the topic of "Shifting Law Enforcement Goals to ​Reduce Mass Incarceration." Here are some highlights from a speech that all sentencing fans will want to read in full:

As you know, we gather this afternoon just over a year after the launch of the Justice Department’s Smart on Crime initiative — a series of important changes and commonsense reforms I set in motion last August.  Already, these changes are fundamentally shifting our response to certain crime challenges —particularly low-level, nonviolent drug offenses.  And this initiative is predicated on the notion that our work as prosecutors must be informed, and our criminal justice system continually improved, by the most effective and efficient strategies available.

After all — as I’ve often said — the United States will never be able to prosecute or incarcerate its way to becoming a safer nation.  We must never, and we will never, stop being vigilant against crime — and the conditions and choices that breed it.  But, for far too long — under well-intentioned policies designed to be “tough” on criminals — our system has perpetuated a destructive cycle of poverty, criminality, and incarceration that has trapped countless people and weakened entire communities — particularly communities of color....

Perhaps most troubling is the fact that this astonishing rise in incarceration — and the escalating costs it has imposed on our country, in terms both economic and human — have not measurably benefited our society.  We can all be proud of the progress that’s been made at reducing the crime rate over the past two decades — thanks to the tireless work of prosecutors and the bravery of law enforcement officials across America.  But statistics have shown — and all of us have seen — that high incarceration rates and longer-than-necessary prison terms have not played a significant role in materially improving public safety, reducing crime, or strengthening communities.

In fact, the opposite is often true.  Two weeks ago, the Washington Post reported that new analysis of crime data and incarceration rates — performed by the Pew Charitable Trusts, and covering the period of 1994 to 2012 — shows that states with the most significant drops in crime also saw reductions in their prison populations.  States that took drastic steps to reduce their prison populations — in many cases by percentages well into the double digits — saw crime go down as well.  And the one state — West Virginia — with the greatest increase in its incarceration rate actually experienced an uptick in crime.

As the Post makes clear: “To the extent that there is any trend here, it’s actually that states incarcerating people have seen smaller decreases in crime.”  And this has been borne out at the national level, as well.  Since President Obama took office, both overall crime and overall incarceration have decreased by approximately 10 percent.  This is the first time these two critical markers have declined together in more than 40 years. And although we have a great deal of work to do — and although, last year, some states continued to record growth in their prison populations — this is a signal achievement....

Over the past year, the federal prison population declined by roughly 4,800 inmates — the first decrease we’ve seen in many ‎decades.  Even more promising are new internal projections from the Bureau of Prisons. In a dramatic reversal of prior reports — which showed that the prison population would continue to grow, becoming more and more costly, overcrowded, and unsafe — taking into account our new policies and trends, our new projections anticipate that the number of federal inmates will fall by just over 2,000 in the next 12 months — and by almost 10,000 in the year after.‎

This is nothing less than historic.  To put these numbers in perspective, 10,000 inmates is the rough equivalent of the combined populations of six federal prisons, each filled to capacity.  Now, these projected decreases won’t result in any prison closures, because our system is operating at about 30 percent above capacity.  But my hope is that we’re witnessing the start of a trend that will only accelerate as our Smart on Crime changes take full effect.

Clearly, criminal justice reform is an idea whose time has come.  And thanks to a robust and growing national consensus — a consensus driven not by political ideology, but by the promising work that’s underway, and the efforts of leaders like Senators Patrick Leahy, Dick Durbin, Mike Lee, and Rand Paul — we are bringing about a paradigm shift, and witnessing a historic sea change, in the way our nation approaches these issues. ...

The Smart on Crime initiative is in many ways the ultimate expression of my trust in the abilities — and the judgment — of our attorneys on the front lines.  And although some have suggested that recent changes in charging and sentencing policies might somehow undermine their ability to induce cooperation from defendants in certain cases, today, I want to make it abundantly clear that nothing could be further from the truth.

As I know from experience — and as all veteran prosecutors and defense attorneys surely recognize — defendant cooperation depends on the certainty of swift and fair punishment, not on the length of a mandatory minimum sentence.  Like anyone old enough to remember the era before sentencing guidelines existed and mandatory minimums took full effect, I can testify to the fact that federal guidelines attempted to systematize the kinds of negotiations that were naturally taking place anyway.  As our U.S. Attorney for the Western District of Wisconsin, John Vaudreuil, often reminds his colleagues, even without the threat of mandatory minimums, it remains in the interests of all attorneys to serve as sound advocates for their clients — and for defendants to cooperate with the government in exchange for reduced sentences.

Far from impeding the work of our prosecutors, the sentencing reforms I’ve mandated have strengthened their discretion.  The contention that cooperation is somehow dependent on mandatory minimums is tied to a past at tension with the empirical present, and is plainly inconsistent with history, and with now known facts.  After all, as the Heritage Foundation observed earlier this year: “[t]he rate of cooperation in cases involving mandatory minimums is comparable to the average rate in all federal cases.”

Of course, as we refine our approach and reject the ineffective practice of calling for stringent sentences against those convicted of low-level, nonviolent crimes, we also need to refine the metrics we use to measure success; to evaluate the steps we’re taking; and to assess the effectiveness of new criminal justice priorities.  In the Smart on Crime era, it’s no longer adequate — or appropriate — to rely on outdated models that prize only enforcement, as quantified by numbers of prosecutions, convictions, and lengthy sentences, rather than taking a holistic view.  As the Brennan Center and many others have recognized — and as your landmark report on Federal Prosecution for the 21st Century makes crystal clear — it’s time to shift away from old metrics and embrace a more contemporary, and more comprehensive, view of what constitutes success....

Your concrete recommendations — that federal prosecutors should prioritize reducing violence, incarceration, and recidivism — are consistent with the aims of the Smart on Crime initiative.  The new metrics you propose — such as evaluating progress by assessing changes in local violent crime rates, numbers of federal prisoners initially found in particular districts, and changes in the three-year recidivism rate — lay out a promising roadmap for us to consider.  And my pledge to you today is that my colleagues and I will not merely carefully study this critical report — we will use it as a basis for discussion, and a vital resource to draw upon, as we engage in a far-reaching process to develop and codify new success measures — with the aim of cementing recent shifts in law and policy.

One of the key points underscored by your report — and emphasized under the Smart on Crime approach — is the need for the Justice Department to direct funding to help move the criminal justice field toward a fuller embrace of science and data. This is something that we — and especially our Office of Justice Programs and Bureau of Justice Assistance  — have taken very seriously throughout the Obama Administration.  And nowhere are these ideals more fully embodied — or more promisingly realized — than in our Justice Reinvestment Act and Second Chance Act programs....

Thanks to bipartisan support from Congress, funding for the Justice Reinvestment Initiative has more than quadrupled this year.  That, on its own, is an extraordinary indication of the power and importance of this work.  And this additional funding is allowing us to launch a new challenge grant program — designed to incentivize states to take the next major step in their reform efforts.

Today, I am pleased to announce that five states — Delaware, Georgia, Louisiana, Ohio, and Oregon — will be receiving these grants, which can be used to expand pre-trial reforms, to scale up swift and certain sanctions, to institute evidence-based parole practices, or a number of other options.  I am also pleased to announce that five states have been selected to receive new funding under the Second Chance Act to help reduce recidivism. Georgia, Illinois, Iowa, Minnesota, and Vermont will each be awarded $1 million to meet their recidivism reduction goals.  And each will be eligible for an additional $2 million over the next two years if they do so.

September 23, 2014 in Mandatory minimum sentencing statutes, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, September 22, 2014

Brennan Center event on "Shifting Law Enforcement Goals to ​Reduce Mass Incarceration"

As detailed via this webpage, the Brennan Center for Justice has assembled an impressive cast of prominent  public officials to address all day on Tuesday September 23 the topic of "Shifting Law Enforcement Goals to ​Reduce Mass Incarceration."  Among the headliners is US Attorney General Eric Holder, who will give a keynote speech at 1pm.  Here is how the Brennen Center sets up the coming discussion:

The need to reform law enforcement practices is now at the center of American public discourse. Join the Brennan Center and the nation’s leading law enforcement and economic policy experts, including U.S. Attorney General Eric Holder, for a full-day conference focused on transforming prosecutorial practices and federal funding structures to both decrease crime and violence and reduce the nation’s incarcerated population.

Experts will discuss: What role should prosecutors and police play in reform efforts? Should their goal be simply to enforce and prosecute to their fullest authority, or should they also strive to reduce unnecessary arrests and incarceration? How can federal funding help modernize local law enforcement nationwide?

The full agenda for this event is available via this link, and I blieve the event will be live-streamed starting at 8:30am and can be accessed via this weblink.

September 22, 2014 in Scope of Imprisonment, Who Sentences? | Permalink | Comments (2) | TrackBack

Sunday, September 21, 2014

Newt Gingrich helps explain "What California can learn from the red states on crime and punishment"

Newt Gingrich and B. Wayne Hughes Jr. are the co-authors of this notable recent Los Angeles Times op-ed headlined " "What California can learn from the red states on crime and punishment." Among other points, the piece makes the case for a proposition on the ballot in California (Prop 47) that would reduce the severity of a number of California crimes. Here are excerpts:

Imagine you have the power to decide the fate of someone addicted to heroin who is convicted of petty shoplifting. How much taxpayer money would you spend to put that person in prison — and for how long? Is incarceration the right form of punishment to change this offender's behavior?

Those are questions states across the nation are increasingly asking as the costly and ineffective realities of incarceration-only policies have set in. Obviously, we need prisons for people who are dangerous, and there should be harsh punishments for those convicted of violent crimes. But California has been overusing incarceration. Prisons are for people we are afraid of, but we have been filling them with many folks we are just mad at.

Reducing wasteful corrections spending and practices is long overdue in California. The state imprisons five times as many people as it did 50 years ago (when crime rates were similar). And as Californians know, the state's prison system ballooned over the last few decades and became so crowded that federal judges have mandated significant reductions.

Contributing to the growth in the number of prisoners and in prison spending has been a dramatic expansion in the number of felonies. In addition, mandatory minimum sentences have been applied to an increasing number of crimes. These policies have combined to drive up the prison population, as more prisoners serve longer sentences. On top of that, California has an alarmingly high recidivism rate: Six out of 10 people exiting California prisons return within three years.

It makes no sense to send nonserious, nonviolent offenders to a place filled with hardened criminals and a poor record of rehabilitation — and still expect them to come out better than they went in. Studies show that placing low-risk offenders in prison makes them more dangerous when they are released.

Over-incarceration makes no fiscal sense. California spends $62,396 per prisoner each year, and $10 billion overall, on its corrections system. That is larger than the entire state budget of 12 other states. This expenditure might be worth it if we were safer because of it. But with so many offenders returning to prison, we clearly aren't getting as much public safety — or rehabilitation — as we should for this large expenditure.

Meanwhile, California spends only $9,200 per K-12 student, and the average salary for a new teacher is $41,926. And as California built 22 prisons in 30 years, it built only one public university.

California is not alone in feeling the financial (and public safety) consequences of over-incarceration. Several states — politically red states, we would point out — have shown how reducing prison populations can also reduce cost and crime. Most notably, Texas in 2007 stopped prison expansion plans and instead used those funds for probation and treatment. It has reduced its prison population, closed three facilities and saved billions of dollars, putting a large part of the savings into drug treatment and mental health services. Better yet, Texas' violent crime rates are the lowest since 1977.

Another red state, South Carolina, made similar reforms for nonviolent offenses. The drop in the number of prisoners allowed South Carolina to close one prison and also lower its recidivism rate. Other states (Ohio, Georgia, Oklahoma, Kentucky, Missouri, Pennsylvania and Mississippi) have similarly shifted their approach to nonviolent convictions.

Now voters in California will have a chance to do the same, using costly prison beds for dangerous and hardened criminals. It is time to stop wasting taxpayer dollars on locking up low-level offenders. Proposition 47 on the November ballot will do this by changing six nonviolent, petty offenses from felony punishments (which now can carry prison time) to misdemeanor punishments and local accountability.

The measure is projected to save hundreds of millions of taxpayer dollars per year, and it will help the state emphasize punishments such as community supervision and treatment that are more likely to work instead of prison time....

If so many red states can see the importance of refocusing their criminal justice systems, California can do the same. It's not often the voters can change the course of a criminal justice system. Californians should take advantage of the opportunity and vote yes on Proposition 47.

September 21, 2014 in Elections and sentencing issues in political debates, Offense Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Saturday, September 20, 2014

Despite the threat of another Plata, a number of states' prisons remain way over capacity

I expected that one consequence of the Supreme Court's affirmance of the prisoner release order for California in Plata would be that other states would work even harder than usual to keep their prison overcrowding in check so as not to risk Plata-like litigation in their states.  But, as this new Washington Post piece highlights, there are still a significant number of states that are still dealing with significant prison overcrowding problems (though Plata still seems on their minds).  Here are excerpts from a piece headlined "Prisons in these 17 states are over capacity":

The number of Americans in state and federal prisons has exploded over the last three decades, to the point that nearly one in every 200 people is behind bars. And though the rate of growth has slowed, and even declined over the last five years, the tough-on-crime policies and longer sentences that have sent prison rates skyward present a huge problem for states: Where do they put all those people?

That problem is especially acute in 17 states where the prison population is now higher than the capacity of the facilities designed to hold them. Those states, still recovering from a recession that decimated budgets, have to decide whether to build facilities with more beds, turn to private contractors, relax release policies — or simply stuff more prisoners into smaller spaces.

At the end of 2013, Illinois was housing 48,653 prisoners, according to data published by the Bureau of Justice Statistics. The state’s prison facilities are designed to hold just 32,075 prisoners, meaning the system is operating at 151 percent of capacity. North Dakota’s 1,571 prisoners live in space meant for 1,044 people, 150 percent of capacity. Nebraska, Ohio, Delaware, Colorado, Iowa and Hawaii are all holding a prison population equal to more than 110 percent of capacity.

What scares states the most is the prospect of federal courts intervening and ordering new action. California has been under court order since 2009 to reduce its prison population, which is far beyond capacity. The state has spent billions housing inmates in county jails or sending them to facilities run by private for-profit companies.

“No state actively wants the federal courts to come in and take over operation of their state government functions,” said Adam Gelb, director of the Public Safety Performance Project at the Pew Charitable Trusts.

The possibility of federal court intervention has spurred Alabama to begin reviewing its corrections procedures. A Justice Department investigation released in January found conditions at the state’s women’s prison violate the Constitution, and DOJ said it would look into conditions at other state prison facilities.

In June, Alabama Gov. Robert Bentley (R) launched the Justice Reinvestment Initiative to study the state’s criminal justice system and make recommendations for easing overcrowding. The state’s prison facilities are designed to house 13,318 inmates, though operationally the facilities can hold 26,145 people. The current prisoner population, 26,271 inmates, is 197 percent of the lowest possible capacity and 100.5 percent of the highest number.

Court intervention “has been a powerful motivator over the last couple of years for Alabama to tackle its situation, independent of all the in-state concerns with overcrowding,” Gelb said.

September 20, 2014 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3) | TrackBack

Thursday, September 18, 2014

"The War on Drugs and Prison Growth: Limited Importance, Limited Legislative Options"

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

Many commentators argue that the War on Drugs has played a major role in the four-decade long explosion in US incarceration rates, but in this paper I demonstrate that these claims do not generally rest on sound empirical footing.  The direct incarceration of drug offenders explains only about 20% of prison growth (compared to over 50% for violent offenders), and drug convictions do not appear to drive parole revocations nor act as prior felonies that trigger harsh repeat offender laws for subsequent non-drug offending. Furthermore, drug offenders also appear to comprise only about 20% of those flowing through prison, which could be a more accurate measure of the War on Drugs' impact, since drug offenders generally serve disproportionately short sentences and thus may be under-represented in the one-day prison counts that are standard metric of prison's scope.

That said, the War on Drugs could still matter, but in more indirect -- and much harder to measure -- ways.  Drug enforcement could contribute to overall social instability in high-crime, high-enforcement communities, or at least to the perception of instability, in ways that may trigger more enforcement by police and prosecutors, even if crime rates are relatively low and falling.  Furthermore, while prior drug offenses do not appear to trigger formal recidivist statutes, they may alter prosecutorial charging decisions for later non-drug offenses, but prosecutorial charging behavior is currently impossible to measure with existing data.

Finally, even though the War on Drugs has played only a secondary role in prison growth, there are over 200,000 people in state prison every day on drug charges, and states appear eager to reduce the scope of drug-related incarcerations.  So I conclude by considering some of the options available to states.  I point out that the leading contenders -- decriminalization and sentence reduction -- will likely have little effect, since few offenders are in prison on marijuana charges (the only drug for which decriminalization is currently feasible), and all drug offenders serve relatively short sentences, well below the statutory maximums.  I then consider broader options, such as proposals that target the financial incentives prosecutors have to send offenders, including drug offenders, to prison.  I also touch on the implications of adopting broader definitions of "drug offenders," such as those who commit violent or property crimes either to support drug habits or in the course of selling drugs.

September 18, 2014 in Drug Offense Sentencing, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

Wednesday, September 17, 2014

Finding an age-based silver lining — or lead lining — in latest BJS prison data

Regular readers know I am very intrigued by the (often overlooked) social science research that suggests lead exposure levels better account for variations in violent crime rates than any other single variable.  Consequently, I am happy an eager to note this new data and analysis sent my way by researcher Rick Nevin who has been talking up the lead-exposure-violent-crime link for many years. 

This short new piece by Nevin, titled "Prisoners in 2013: The News Media Buries the Lead," responds to yesterday's report from the Bureau of Justice Statistics that the US prison population increased in 2013 for first time since 2009. Without vouching for the data, I am eager to highlight Nevin's interesting and encouraging age-based data discussion (with bolding in original and a recommendation to click through here to see charts and all the links):

The news media is reporting on U.S. incarceration data from the Bureau of Justice Statistics (BJS), but the media and BJS have ignored the important news: From 2012 to 2013, the male incarceration rate fell 21% for men ages 18-19, 6% for ages 20-24, and 5% for ages 25-29, but increased by 5% for ages 50-54, 7% for ages 55–59, and 8% for ages 60–64.

BJS Prisoner Series data show an ongoing incarceration rate decline for younger males and an increase for older males that has been ignored by the media for more than a decade.  From 2002 to 2013, the male incarceration rate fell by 61% for men ages 18-19, 34% for ages 20-24, and 25% for ages 25-29, but increased by 30% for ages 40-44.

BJS data for older age groups, reported since 2007, show the same trend through the age of 64. From 2007 to 2013, the male incarceration rate fell 37% for ages 18-19, 28% for ages 20-24, 14% for ages 25-29, and 7% for ages 30-44, as the male incarceration rate increased 22% for ages 45-49, 50% for ages 50–54, and 57% for ages 55–64.  In 2007, men ages 18-19 were twice as likely to be incarcerated as men ages 60-64.  In 2013, men ages 60-64 were almost 20% more likely to be incarcerated than men ages 18-19.

The BJS Prisoners in 2013 report ignores the detailed data on trends in male incarceration rates by age, and highlights an increase in the total prison population of about 4,300 from 2012 to 2013, but notes that the overall incarceration rate (per 100,000 U.S. residents) did fall from 480 in 2012 to 478 in 2013....

The actual BJS data show a long-term trend of falling incarceration rates for younger men that has continued from 2002 through 2013. That decline was the inevitable result of a shift in violent crime arrest rates by age since the 1990s. From 1994 through 2011, the violent crime arrest rate fell by 64% for ages 13-14, 61% t0 52% for ages 15-18, 44% to 39% for ages 19-21, 37% for ages 22-39, and 19% for ages 40-44, as the violent crime arrest rate increased by 6% for ages 45-49, and 13% for ages 50-54.

What is the causal force behind the shift in age-specific violent crime arrest rates and incarceration rates?  The Answer is Lead Poisoning.

Some recent related posts:

September 17, 2014 in Data on sentencing, Detailed sentencing data, National and State Crime Data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Tuesday, September 16, 2014

After a few modest yearly declines, state prison population ticks up in 2013 according to new BJS data

As reported in this New York Times piece, headlined "Number of Prisoners in U.S. Grew Slightly in 2013, Report Finds," a small streak of yearly declines in state prison populations came to a halt in 2013. Here are the details:

Breaking three consecutive years of decline, the number of people in state and federal prisons climbed slightly in 2013, according to a report released Tuesday, a sign that deeper changes in sentencing practices will be necessary if the country’s enormous prison population is to be significantly reduced.

The report by the Justice Department put the prison population last year at 1,574,700, an increase of 4,300 over the previous year, yet below its high of 1,615,487 in 2009. In what criminologists called an encouraging sign, the number of federal prisoners showed a modest drop for the first time in years.

But the federal decline was more than offset by a jump in the number of inmates at state prisons. The report, some experts said, suggested that policy changes adopted by many states, such as giving second chances to probationers and helping nonviolent drug offenders avoid prison, were limited in their reach....

Across the country, drug courts sending addicts to treatment programs rather than jail have proved valuable but are directed mainly at offenders who would not have served much prison time anyway, said Marc Mauer, executive director of the Sentencing Project, a private group in Washington. At the same time, Mr. Mauer said, more life sentences and other multidecade terms have been imposed than ever, offsetting modest gains in the treatment of low-level offenders.

“Just to halt the year-after-year increase in prisoners since the 1970s was an achievement,” said Richard Rosenfeld, a criminologist at the University of Missouri–St. Louis, and that shift came about because of changes in state policies and a drop in crime.

But experts say it will take more far-reaching and politically contentious measures to markedly reduce the country’s rate of incarceration, which is far above that in European nations and has imposed especially great burdens on African-Americans. Mandatory sentences and so-called truth-in-sentencing laws that limit parole have not only put more convicts in costly prison cells for longer stretches but have also reduced the discretion of officials to release them on parole....

The size of the federal prison population is closely tied to federal drug laws and penalties. A majority of the 215,866 offenders in federal prisons in 2013 were there on drug charges, often serving lengthy sentences under get-tough policies that have increasingly come under question. Recent changes in federal drug enforcement — a 2010 law to reduce disparities in sentences for crimes involving crack as opposed to powdered cocaine, and a directive from Attorney General Eric H. Holder Jr. calling for less stringent charges against nonviolent offenders — are too new to have had a large impact in 2013.

The full BJS report, titled excitingly "Prisoners in 2013," is available at this link. I need to grind over the data in the full report before commenting on what this notable new report tells us about the state and direction of modern mass incarceration.

September 16, 2014 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0) | TrackBack