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.

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)

Tuesday, May 15, 2018

Thoughtful BBC series of articles on "Criminal myths: Misconceptions about criminals and crime"

I just came across this series of special articles via BBC Future under the headine "Criminal Myths."  Here is how this introductory piece sets up what follows:

In both the UK and the US violent crime has recently been rising, records show. There are now also record numbers of individuals behind bars around the world, about 10.35 million, a figure that has increased by 20% in under two decades.  The highest number of these are in the United States, where those convicted are serving increasingly long sentences.

Among the prison population, 70,000 are women and girls, a figure that has been rising higher than for males.  A high proportion of women behind bars have mental health problems and have been victims of abuse.

Despite these rises, we are not living in the most violent era of history (in 1991 the violent crime figures in the US were about double those of today).  While in the UK, although police figures indicate that crime is rising, a national crime survey found that most crimes "either fell or were at a similar level".

Meanwhile in the Netherlands, prisons are closing due to a lack of inmates to fill cells, as our reporter discovered on a visit to a Dutch jail, though this does not necessarily mean that crime is dramatically falling. These examples show that statistics can be confusing, and there is often more going on than the numbers suggest, such as falling police officers, longer jail terms, to a rise in community sentencing.

That's why we are taking a look at some of these issues, to tackle the misconceptions about criminals and the factors that shape crime.

Here are the full headline of some of the articles in this series:

May 15, 2018 in Prisons and prisoners, Scope of Imprisonment, Sentencing around the world | Permalink | Comments (2)

Wednesday, May 09, 2018

Detailed review of Illinois juve offenders serving just barely "less than life"

Less-than-life-featureThe Chicago Sun-Times has published this extensive look by Injustice Watch at how the Illinois has sentenced (and largely failed to resentence) a set of juvenile offenders serving extreme long prison sentences . The full lengthy title of this piece sets forth its essential elements: "Less than life: Across the country, juvenile offenders are being released from prison based on recognition that human brains continue to develop for the first two and a half decades of life.  Nevertheless in Illinois, many who commit crimes as teenagers are likely destined to die in custody."  Here is an excerpt:

In Illinois, it is rare for juveniles who did not receive automatic life prison terms to win new chances at sentencing, leaving most of those with long sentences to languish in prison for decades, an Injustice Watch review found.

A review of custody data from the Illinois Department of Corrections revealed that, as of last December, at least 167 current inmates were arrested for crimes as juveniles and are set to serve 50 years or more in prison without parole eligibility, leaving them likely to die in custody but not eligible for resentencing under the dictates of Miller. (It is not possible to know the exact number of young offenders serving long sentences at the Illinois Department of Corrections because the agency does not specifically keep track of that information.)

The imposition of long sentences is especially harsh in Illinois, a state which does not afford parole to most prisoners and which requires offenders convicted of murder to serve 100 percent of their punishment, with no chance of early release based on factors like good conduct or rehabilitation. Such sentences almost certainly lead these inmates to either spend the rest of their lives incarcerated or be released with precious little life left.

Research indicates that incarceration has a jarring effect on life expectancy. In studying a group of inmates released from New York state correctional facilities over a 10-year period, Vanderbilt University Professor Evelyn Patterson found that the former prisoners could expect to shave two years off of their average life expectancy for every one year of incarceration. Furthermore, Patterson found, undoing the negative effect on longevity takes time. It took former inmates two-thirds of the time spent in custody back on the outside to recover from the harm of incarceration on life expectancy. The United States Sentencing Commission considers a 39-year prison sentence the equivalent of life.

Because Illinois almost entirely abolished parole in 1978, these juvenile offenders do not get the same chance to show rehabilitation and change that they might get in other states. About a third of states do not currently employ the traditional practice of parole for newly convicted inmates, according to a report published by the University of Minnesota’s Robina Institute of Criminal Law and Criminal Justice, but Illinois is one of three states nationwide that stopped utilizing parole four decades ago, making it nearly non-existent for the current prison population.

The approximately 80 juvenile offenders in Illinois who became eligible to have their sentences reconsidered [after Miller] all were convicted of killing more than one person — Illinois law mandates life for anyone convicted of multiple murders. By contrast, Illinois state appellate judges have mostly declined to find that the cases of other violent youthful offenders ... fall under the protections outlined in Miller.

There is no national legal standard on how many years is too many for a juvenile to serve. Courts across the country have differed on the issue, creating varied standards on what length of a prison term can legally be considered a life sentence. “Getting rid of formal life without parole was the tip of the iceberg,” said Marsha Levick, deputy director and chief counsel for the Pennsylvania-based Juvenile Law Center, which has advocated for lesser sentences for juveniles convicted of crimes.

Across the country, about a dozen states have passed laws requiring that young defendants sentenced to long prison terms get a chance at parole. Legislators in Illinois have proposed a bill that would give periodic parole opportunities to newly convicted young offenders; so far those efforts have stalled.

May 9, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0)

Monday, May 07, 2018

Interesting complicated stories of the recidivism impact of California's big modern sentencing reforms

Via email, I received news of this notable new publication, titled "Evaluating the Effects of Realignment Practices on Recidivism Outcomes," authored by Mia Bird and Ryken Grattet emerging from their empirical work funded by the Justice Department.   Sentencing fans know that "realignment" refers to the big statutory sentencing reforms enacted by California in 2011 to address the state's unconstitutional prison overcrowding; but it is only one part of a number of dramatic changes in sentencing laws and practices in that state over the last decade.  Like the state of California, this new research publication defies easy summary, and I will here reprint its closing analysis:

To date, our research has portrayed the changes in the local correctional populations across two major reforms — 2011’s Public Safety Realignment and 2014’s Proposition 47 — and across probation systems and county jails.  Moreover, through the survey data we have compiled, we have been able to explore the way the nature of probation work has changed. And, finally, we have provided an in-depth analysis of how realignment has affected recidivism and are in the preliminary stages of identifying effective program, service, and sanction interventions.

Realignment changed major features of the correctional system by lessening deterrence and incapacitation and aiming to improve rehabilitation.  The results we see here are likely reflective of the impacts of these countervailing changes. The strongest conclusion from this work is that, in the first years under realignment, recidivism outcomes have varied substantially across realignment treatment groups and counties, with some offenders achieving much better outcomes under realignment and others faring worse in comparison to their pre-realignment counterparts.  However, analysis of the first two years of realignment is insufficient to draw policy conclusions because many counties were unprepared to take on the challenges of implementing evidence-based interventions with more serious offender groups.  Given that context, our findings show some promise that improvements can be made over time, particularly if we are able to leverage the diversity of county approaches to identify and disseminate effective practices.

Our work on changes in jail and probation populations has demonstrated that the state and counties have prioritized correctional resources for more serious offenders under Realignment and Prop 47.  This change has reduced overall incarceration levels and criminal justice contact, but has also increased the need for guidance on evidence-based practices at the local level.

May 7, 2018 in Data on sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Saturday, May 05, 2018

Scrutinizing sex offender civil commitment schemes

Investigative reporter Barbara Koeppel has this extensive article in The Washington Spectator under the full headline "Sex Crimes and Criminal Justice: Formerly incarcerated sex offenders say civil commitment programs deny proper rehabilitation."  I recommend the piece in full, and here are excerpts from the start and end of the article:

Since the 1990s, 20 states and the District of Columbia have passed laws that direct the attorneys general in these jurisdictions to appoint professionals to evaluate whether sex offenders who have served their time have a mental abnormality or illness that would make them likely to re-offend.  If the decision is yes, the men are re-incarcerated—not for past crimes but for ones they might yet commit — in prisonlike facilities with barbed wire, cells, guards, and watch towers. While institutionalized, they receive therapy that, theoretically, will help them control their sexual impulses.

The practice is known as civil commitment.... Supporters of the process argue it protects the public.  Critics, however, such as Dr. Richard Wollert, a psychologist at Simon Fraser University in British Columbia, disagree. He says the facts simply don’t support it: “I’ve never seen data that show the 20 states with civil commitment laws have lower rates of sex offenses or re-offenses than the 30 states that don’t.”  Similarly, Dr. Fred Berlin, a psychologist who runs sex offender outpatient programs at Johns Hopkins Hospital, says, “They’re really a ruse to not put the men back in society.” The sex offenses range from obscene phone calls, lewd behavior in public, and sex with underage partners, all the way up to rape and murder.

Organizations and professionals familiar with the abuses of civil commitment are its harshest critics.  The American Psychiatric Association told its members to “vigorously oppose” it. Two judges, from Minnesota and Missouri, found the laws “punitive and unconstitutional.”  Tapatha Strickler, a clinical psychologist who worked at the civil commitment facility in Larned, Kansas, calls it “an abomination.”  But the practice persists at huge cost to individuals and taxpayers....

The men I interviewed frankly admitted to their offenses, but they asked to be treated as others who commit crimes and not be re-incarcerated after they serve their prison sentences.  Also, since most state and federal prisons run mental health therapy programs, the men said they’d already participated in them throughout their original sentences — which could be 20 or 25 years — yet were made to start from scratch in the civil commitment facilities.

Today, about 5,400 men are held in civil commitment. [Lawyer Donald] Anderson told me, “It’s hard to wrap my head around it.  I sympathize greatly with the men’s victims and their families because I have two daughters and I understand people’s fears.  But I’ve dealt with these guys for years and I’m very fond of some of them.  Their look of being utterly beaten, knowing they’ll be here until they die, is very sad.  The program is inhumane.”

May 5, 2018 in Criminal Sentences Alternatives, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sex Offender Sentencing | Permalink | Comments (16)

Wednesday, May 02, 2018

Spotlighting modern tendency to invest more in prisons than in schools

Marc Schindler has this new commentary at The Hill headlined "Taxing our kids to fund prisons." Here are excerpts:

What do schools and prisons have in common? They each require budget allocations, which establish and demonstrate our priorities. And each affects crime prevention. But the commonalities end there. Studies show that while quality education decreases crime, imprisonment actually increases crime; the ROI on prison spending is a losing proposition. In 2015, the United States placed 40th in the world in math and 25th in science. We need well-educated kids to become productive and law-abiding adults, and an educated workforce to remain competitive in a global economy. This requires significant investment in education....

Research demonstrates that education is one of the soundest investments we can make, but we spend smaller portions of our budgets on it every year. If our kids and future actually are a priority, we need to reflect that in how we allocate limited resources.  Yet, policymakers repeatedly send scarce tax dollars to one of the least effective investments — prisons.

At a time when more than half of Americans are willing to pay higher taxes to support education, states are spending extraordinary amounts to lock people up, even though incarceration has been shown to make us less safe, and is significantly more expensive, than community-based alternatives.  And, in an ironic and troubling twist, Colorado legislators introduced a bill to jail striking teachers.  Not only would Colorado be spending money on incarceration at the expense of education, Colorado would be spending money on locking up teachers who are protesting this failed public policy approach.

In the past 30 years, we’ve seen a shift in the way we allocate resources — spending on education has grown painfully slowly, compared to spending on incarceration. Between 1980 and 2013, education budgets grew by 58 percent in West Virginia, 69 percent in Oklahoma, and 102 percent in Kentucky; during that time there was an explosive growth of spending on incarceration with an increase of 483 percent in West Virginia, 341 percent in Oklahoma and 259 percent in Kentucky. Other states showed similar patterns during those years: Colorado saw a growth of 103 percent for education but 513 percent for corrections; Arizona spent 188 percent more for education but 491 percent more for corrections.

The explosion in prison costs isn’t because we’ve improved the quality of life in prison, but because we’ve implemented policies that needlessly warehouse more people, particularly poor people of color.  We’ve seen that spending more to warehouse people doesn’t lead to safer communities — for example, Oklahoma and Louisiana have among the highest incarceration rates while still having comparatively high crime rates.

This spending disparity isn’t inevitable.  We have community-based programs that are significantly more effective, and cheaper, than incarcerating somebody.  We could free up millions of dollars to invest in teachers and schools if we reduce our reliance on incarceration by shifting to community-based alternatives.

We must do this if we are to effectively spend our limited tax dollars. It’s time we held elected officials accountable for decisions that waste money, make us less safe and penalize our kids with a second-rate education.  If we are serious about creating safer and healthier communities, where our kids can find good jobs and build healthy lives as responsible adults, we cannot keep spending our limited resources on incarceration at the expense of funding the best education in the world.  We need to get our priorities straight if we want to create a better, safer, future for ourselves and our kids.

May 2, 2018 in Scope of Imprisonment, Who Sentences | Permalink | Comments (8)

"Revisiting the Role of Federal Prosecutors in Times of Mass Imprisonment"

The title of this post is the title of this recent article authored by Nora Demleitner recently posted to SSRN. Here is the abstract:

The article highlights how the Department of Justice and its leadership can change even long-standing prosecutorial orthodoxy and prevailing approaches when they set out a clear mission and empower and guide prosecutors in implementing it.  To decrease the number of federal prisoners, the Obama administration adopted a tri-partite strategy that included prevention and re-entry, co-equal with prosecutions.  Yet the collection and analysis of relevant data continued to fall short which privileged old practices that emphasized the number of convictions and prison years imposed.

A substantial investment in data is needed to support and reinforce a shift away from prison terms.  Perhaps most importantly, the article questions the role federal prosecutors should play at a time prisons remain overcrowded despite a historically low crime rate.  The criminal justice paradigm may not be an appropriate avenue for addressing social problems.

May 2, 2018 in Data on sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Thursday, April 26, 2018

Bureau of Justice Statistics reports 2016 declines in number incarcerated and subject to community supervision in United States

This press release from the Bureau of Justice Statistics reports on the notable data appearing in two notable new BJS publications:

The number of adults supervised by the U.S. correctional system dropped for the ninth consecutive year in 2016. The correctional population includes persons supervised in the community on probation or parole and those incarcerated in prisons or local jails. This report from the Bureau of Justice Statistics is the latest official snapshot of the state of the U.S. correctional population.

From 2007 to 2016, the proportion of the adult population under the supervision of U.S. correctional authorities decreased by 18 percent, from 3,210 to 2,640 adults under correctional supervision per 100,000 residents. The number of adults under correctional supervision per 100,000 U.S. adult residents was lower in 2016 (2,640) than at any time since 1993 (2,550). Overall, about 1 in 38 adults were under some form of correctional supervision at year-end 2016.

An estimated 6,613,500 persons were under correctional supervision on December 31, 2016, about 62,700 fewer persons than on January 1. The total correctional population declined 0.9 percent during 2016 due to decreases in both the community supervision population (down 1.1 percent) and the incarcerated population (down 0.5 percent).

The incarcerated population decreased from 2,172,800 in 2015 to 2,162,400 in 2016. All of the decrease in the incarcerated population was due to a decline in the prison population (down 21,200), while the jail population remained relatively stable. The number of persons held in prison or local jail per 100,000 U.S. adult residents (incarceration rate) has declined since 2009 and is currently at its lowest rate (860 per 100,00 in 2016) since 1996 (830 per 100,000).

During 2016, the community supervision population fell from 4,586,900 on January 1 to 4,537,100 at year-end. All of the decrease in the community supervision population in 2016 was due to a decline in the probation population (down 52,500). The parole population increased 0.5 percent in 2016 (up 4,300 persons). More than two-thirds (69 percent) of the correctional population were supervised in the community at year-end 2016, similar to the percentage observed in 2007.

These data and a whole lot more appear in these two new BJS publications:

UPDATE: Keith Humphryes has here his typically sharp WonkBlog commentary here focused on these new data under the headline "The U.S. prisoner population continued to shrink in 2016, new data show." Here concludes this way (with links from the original):

A smaller correctional population is a dividend of lower crime rates combined with a national wave of sentencing and rehabilitation reforms at the state level.  Because the current generation of adolescents and adults is committing significantly less crime than did prior generations at their age, there will be ample opportunity to shrink the correctional system even further in the coming years.

April 26, 2018 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (2)

Federal criminal justice reform bogs down again in fight over whether prison reform or broader sentencing reform moves forward

Politico has this lengthy and discouraging article about the state of federal criminal justice reform under the headline "Kushner-backed prison reform bill stumbles in House."  Here are excerpts:

The House Judiciary Committee scrapped plans to vote on a prison reform proposal Wednesday, potentially dooming one of the few remaining prospects for significant bipartisan compromise this Congress.

The last-minute postponement of the measure came as President Donald Trump’s son-in-law and adviser Jared Kushner visited Capitol Hill to rally support for it.  But the delay also followed what multiple House sources described as a behind-the-scenes opposition campaign from two Senate heavyweights, one from each party.

Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) and Senate Minority Whip Dick Durbin (D-Ill.) have told House Judiciary panel members to oppose a narrower prison reform bill without the addition of a sentencing overhaul they spent months negotiating, House sources said.

The Trump administration and GOP leaders want to see a prison-only bill move, not the broader criminal justice bill, but that’s not stopping Grassley and Durbin from what one Republican portrayed as meddling in the House debate.  “Frankly, I respect the two senators, but they have enough problems in the Senate,” said Rep. Doug Collins (R-Ga.), the House GOP’s lead author of the prison reform legislation, in a Wednesday interview. “I wish they would actually focus on passing bills over there. That would be nice.”

Durbin denied that he was telling the House to slow down on the prison-only approach: “We’re just saying that over here, the two need to be together.” But Durbin confirmed Wednesday that he has talked to the House Judiciary panel’s top Democrat, Rep. Jerry Nadler of New York, about the importance of keeping the two bills together while Grassley has reached out to Republicans to pitch a comprehensive approach....

The Senate’s lobbying threatens to kill momentum for the Kushner-backed House bill, which would provide training programs to prisoners in hopes of discouraging repeat offenses.  The omission of sentencing changes is opposed not only by Grassley and Durbin but by dozens of powerful progressive groups including the ACLU and the NAACP. Those groups say the bill doesn’t go far enough and should also include language that would reduce sentences for some prisoners.

House Judiciary Chairman Bob Goodlatte (R-Va.) blamed Wednesday’s delayed vote on “time constraints” and said the postponement will give negotiators more time to work out “minor issues.” The panel is now scheduled to consider the bill during the week of May 7.

But the impasse doesn’t show any signs of being resolved soon. In his statement at the beginning of the hearing Wednesday, Nadler said negotiators should consider including sentencing reform in their discussions.  “In my view, considering prison reform without consideration of sentencing reform has the process backward, and avoids the difficult but necessary legislating on that critical issue,” Nadler said.

Nadler later told POLITICO he would be "very reluctant” to support any bill that didn’t include sentencing reform but wouldn’t say whether his opposition, as the top Democrat on the panel, was enough to sink the proposal: “Never say never, but I’d be very reluctant."

But supporters of the narrower prison reform push say a comprehensive strategy is a futile effort and would nix the chances of any bipartisan bill getting to the president’s desk this year.  Attorney General Jeff Sessions, a staunch critic of sentencing reform, opposed a similar proposal before Trump tapped him to lead DOJ and has publicly clashed with Grassley over the issue this year.

However, there’s lingering distrust among House Democrats that Sessions is operating in good faith. Democrats successfully nixed multiple “poison pill“ amendments they said were floated by DOJ during talks on the bill but said privately they’re concerned that Sessions does’'t actually want to see any criminal justice legislation come to fruition.

Grassley also acknowledged in an interview with POLITICO this week that he has yet to persuade Senate Majority Leader Mitch McConnell (R-Ky.) to bring the comprehensive criminal justice bill to the floor.  “It’s my job to show McConnell that this bill has got plenty of support at the grass roots, that it’s got good bipartisan support,” Grassley said. “It’s something that a president needs a bipartisan bill to sign and there’s all kinds of reasons why this bipartisan bill should be brought up, whether the House passes a bill or not.”...

Senate Majority Whip John Cornyn (R-Texas), who supported Grassley’s efforts on a broader criminal justice package during the Obama administration but has narrowed his sights given the Trump administration’s opposition, delivered a floor speech Wednesday urging the two camps to come together on a prison-only approach. “I know other people have other ideas, perhaps about sentencing reform and the like,” Cornyn said, “but in this political environment, I’m for doing what we can do rather than spinning our wheels being frustrated about what we can’t do because there’s simply not the political support in the House and the Senate and at the White House to get it done.”

I am glad that Senators Grassley and Durbin remain deeply committed to getting a bigger criminal justice reform bill passed, but I continue to fear that Senate Majority Leader McConnell will continue to be unwilling to allow a floor vote on the Sentencing Reform and Corrections Act.  Senator McConnell has shown in other settings his ability to be stubborn, and his enduring resistance to the SRCA leads me to be pessimistic about any sentencing reforms getting through Congress this year.

I surmise Senators Grassley and Durbin, and perhaps many reform advocates who have come out against a prison-reform-only bill, believe that passage of a broad bill through the House might make it more likely that Senator McConnell will allow a floor vote.  Perhaps so, and I hope they can get it done.  But I am not optimistic, and I continue to think that getting prison reform done ASAP can be a needed and useful first step toward an array of badly-needed statutory reform of our federal criminal justice system.

A few of many prior related posts:

April 26, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

Tuesday, April 24, 2018

"The Prison Industrial Complex: Mapping Private Sector Players"

The title of this post is the title of this new report from the Corrections Accountability Project at the Urban Justice Center.  Here is its introduction:

In 1983, CoreCivic received its first contract to operate a correctional facility, marking the birth of the private prison industry.  The following year, The GEO Group also entered the private prison market.  Over the next 35 years, as the U.S. carceral population mounted from roughly 660,000 to more than 2.2 million, the competitors would grow to own and operate roughly 130 correctional facilities with over 150,000 beds.

By 2017, CoreCivic and The GEO Group were generating combined annual revenues of $4 billion on the more than 45 million individual nights that people spend incarcerated in their correctional facilities every year.

But CoreCivic and The GEO Group, the most recognized, discussed, and targeted for-profit entities operating in the prison industrial complex, are far from the only companies that recognized an opportunity in the prison boom that started in the1970s. In fact, they were not even the first.

Today, more than half of the $80 billion spent on incarceration annually in the U.S. is used to pay the thousands of vendors that serve the criminal legal system. They are healthcare providers, food suppliers, commissary merchants, and more. Focused on their bottom line and advantaged by an obscure and often monopolistic environment, the private, for-profit corporations that operate in the prison industrial complex raise particular concerns for the incarcerated population, vulnerable to corporate abuse.

This report exposes over 3,100 corporations that profit from the devastating mass incarceration of our nation’s marginalized communities. It serves as the largest lens into the prison industrial complex ever published. While this report still far from covers all the private sector companies in this space, it captures all the major players.

At the Corrections Accountability Project, our hope is that advocates, litigators, journalists, investors, and the public will use the report to further understand the expansive nature of the prison industrial complex and familiarize themselves with its players. This report should serve as a resource in the fight against the commercialization of our criminal legal system.

April 24, 2018 in Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

Friday, April 20, 2018

Interesting new survey on crime and punishments from Vera Institute with a focus on rural Americans

This new Vera Institute blog posting by Jasmine Heiss and Jack Norton reports on an interesting new poll. The posting it titled "United Toward Justice: Urban and Rural Communities Share Concerns about Incarceration, Fairness of the Justice System, and Public Spending Priorities," and here are excerpts (with links from the original):

New polling conducted for Vera by Greenberg Quinlan Rosner Research (GQR) shows that a 67 percent majority overall agree that “building more jails and prisons to keep more people in jail does not reduce crime,” including 61 percent of rural Americans.  What’s more, neither people in rural nor urban areas across America consider crime a major problem: only 27 percent of people living in rural areas cite it as a major problem in their communities, as compared to 26 percent overall.  And people in communities of all sizes appear disinterested in spending limited taxpayer resources on prisons and jails.  Building prisons and jails ranks a distant last (35 percent) as a strategy to improve quality of life — trailing behind measures such as providing more jobs and job training (91 percent); investing more in schools and youth programs (88 percent); providing more community-based mental health treatment (86 percent) and drug and alcohol treatment (83 percent); and emphasizing community-based violence reduction programs (78 percent). (See GQR’s memo for complete details.)

Vera’s In Our Backyards research adds a human dimension to these results and anchors them in the lived experiences of communities.  In Pueblo County in Southern Colorado, for example, voters have twice rejected jail expansion.  There are competing narratives about the beliefs underlying the rejection of jail expansion.  The criminal justice stakeholders who were proponents of expansion saw the “no” vote as a reflection of most voters’ general apathy about conditions endured by the people incarcerated and working in the county jail.  But many citizens who voted against expansion saw their votes as a choice about the conditions of the community writ large. As one person who voted against expansion put it: “They need a new treatment center, not a jail. This is a poor place; there’s a drug problem like all these poor places across the country. We don’t need a new jail.”...

Residents not only disapprove of investing in newer or bigger jails and prisons — they’re also concerned about the rate at which their friends and neighbors are being locked up.  A 40 percent plurality believes that the level of incarceration in their communities is too high, as opposed to just nine percent of people who believe that it is too low.  Moreover, 66 percent of people confirmed that they would be concerned if they learned that their community had a higher rate of incarceration than similar communities in their state; 55 percent of whom would be very concerned.  In rural counties, those numbers dip only slightly to a 60 percent majority of residents who would be concerned about outsize rates of incarceration; 45 percent of whom would be very concerned.             

Misgivings about the justice system’s ability to deliver on the promise of equal justice also became clear: 55 percent of respondents agreed that the nation’s justice system discriminates against poor people.  This was affirmed by 76 percent of people who described themselves as “lower class,” and 84 percent of black Americans.

Furthermore, when asked specifically about their perceptions of judges — among the most visible actors in the local justice system — a 47 percent plurality disagreed with the statement “Local judges are fair to all people, regardless of background,” including 63 percent of black Americans.  These perceptions might be understood in tandem with the overrepresentation of black and poor Americans in the nation’s jails: despite a narrowing racial gap, black people are still 3.6 times more likely to be jailed than white people. What’s more, an estimated 80 percent of people in jail are indigent....

As the movement to reverse mass incarceration and elect reform-minded candidates continues to gain momentum, it’s clear that the same energy that has propelled America’s biggest cities toward reform is infusing small-town America.  And while the nation’s smallest communities are often overlooked, they are poised to be a force for change.

April 20, 2018 in Race, Class, and Gender, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Tuesday, April 17, 2018

"The Consensus Myth in Criminal Justice Reform"

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

It has become popular to identify a “bipartisan consensus” on criminal justice reform, but how deep is that consensus, actually?  This Article argues that the purported consensus is largely illusory. Despite shared reformist vocabulary, the consensus rests on distinct critiques that identify different flaws and justify distinct policy solutions.  The underlying disagreements transcend traditional left/right political divides and speak to deeper disputes about the state and the role of criminal law in society.

The Article offers a typology of the two prevailing, but fundamentally distinct, critiques of the system:

(1) the quantitative approach (what I call the “over” frame); and

(2) the qualitative approach (what I call the “mass” frame).

The “over” frame grows from a belief that criminal law has an important and legitimate function, but that the law’s operations have exceeded that function.  This critique assumes that there are optimal rates of incarceration and criminalization, but the current criminal system is sub-optimal in that it has criminalized too much and incarcerated too many. In contrast, the “mass” frame focuses on the criminal system as a socio-cultural phenomenon.  This reformist frame indicates that the issue is not a mere miscalculation; rather, reforms should address how the system marginalizes populations and exacerbates both power imbalances and distributional inequities.

To show how these frames differ, this Article applies the “over” and the “mass” critique, in turn, to the maligned phenomena of mass incarceration and overcriminalization.  The existing literature on mass incarceration and overcriminalization displays an elision between these two frames. Some scholars and reformers have adopted one frame exclusively, while others use the two interchangeably.  No matter how much scholars and critics bemoan the troubles of mass incarceration and overcriminalization, it is hard to believe that they can achieve meaningful reform if they are talking about fundamentally different problems.

While many reformers may adopt an “over” frame in an effort to attract a broader range of support or appeal to politicians, “over” policy proposals do not reach deeper “mass” concerns.  Ultimately, then, this Article argues that a pragmatic turn to the “over” frame may have significant costs in legitimating deeper structural flaws and failing to address distributional issues of race, class, and power at the heart of the “mass” critique.

April 17, 2018 in Elections and sentencing issues in political debates, Scope of Imprisonment, Who Sentences | Permalink | Comments (2)

Monday, April 16, 2018

"Marijuana legalization can’t fix mass incarceration" ... but it should help a bit

German Lopez has this short piece on Vox, which carries the headline appearing in quotes in this post title and this subtitle: "A Republican and Democrat pointed to marijuana prohibition to explain mass incarceration. They’re both wrong." Here are key excerpts:

Over the past week, prominent political figures from both sides of the aisle have suggested that the prohibition of marijuana is to blame for mass incarceration.

Former House Speaker John Boehner, a Republican from Ohio, claimed, “When you look at the number of people in our state and federal penitentiaries, who are there for possession of small amounts of cannabis, you begin to really scratch your head.  We have literally filled up our jails with people who are nonviolent and frankly do not belong there.”  Sen. Brian Schatz, a Democrat from Hawaii, tweeted, “More than 2 million in jail, mostly black and brown, many for holding a small amount of marijuana.”

The suggestion, however, is wrong. It is true that a lot of people are arrested each year for marijuana. In 2016, nearly 600,000 people were arrested for simple marijuana possession. These arrests on their own can create huge problems — leading to criminal records that can make it harder to get a job, housing, or financial aid for college.

But these arrests are only a small part of America’s mass incarceration problem. First, most people in jail or prison are not in for drug charges at all. According to the Prison Policy Initiative, around 21 percent of people in jail or prison are in there for a drug crime, including marijuana possession....

How many of the 21 percent of drug offenders are in for marijuana possession? Unfortunately, we don’t have good data for jails, where people are held before they’re convicted of a crime and for shorter sentences. We also don’t have good data for state prisons, where more than 87 percent of US prison inmates are held, based on federal data. But we do know that a minority of state prisoners are in for drugs: In 2015, 3.4 percent of all state prisoners were in for drug possession and 11.7 percent were in for other drug-related crimes. So only a fraction of prisoners are locked up due to drug prohibition in general, much less marijuana prohibition in particular.

We do have some good data for the federal system. According to the US Sentencing Commission, 92 of nearly 20,000 people — fewer than half a percent — sentenced for drug offenses during fiscal year 2017 were locked up due to simple possession of marijuana.

I am glad to see efforts to correct (all-too-common) claims that much of mass incarceration can be attributed to marijuana prohibition, and it is especially galling to see Boehner and Schatz suggest that a significant portion of persons are imprisoned for mere possession of small quantities of marijuana. That is not the reality now, nor has it ever been.

That said, as the arrest data highlight, a whole lot of people get entangled with the criminal justice system because of marijuana prohibition. And trafficking in marijuana (which becomes legal with marijuana legalization) has landed tens of thousands of people in US prison in recent decades. The latest data from the US Sentencing Commission, interestingly, shows that the number of persons federally prosecuted for marijuana trafficking dropped from 6792 in Fiscal Year 2012 to only 3381 in Fiscal Year 2016.  These data suggest to me that the era of marijuana legalization in the states has had a real impact on marijuana prosecutions (and imprisonment) at the federal level.

So while marijuana legalization (nor any other single reform) will alone fix mass incarceration, there is a basis to believe it could help a bit.  (Also, I must add that if former House Speaker John Boehner was sincerely concerned about the number of people in our state and federal penitentiaries, there is a lot more he should be doing besides now advising a marijuana company.)

April 16, 2018 in Marijuana Legalization in the States, Pot Prohibition Issues, Scope of Imprisonment, Who Sentences | Permalink | Comments (5)

Thursday, April 12, 2018

Stoked for the OSU's Reckless-Dinitz Lecture featuring Professor John Pfaff

I have had the pleasure of spending a good part of today hanging out with Fordham Law Professor John Pfaff, who is on the Ohio State campus today to deliver the 29th Annual Walter C. Reckless - Simon Dinitz Memorial Lecture.  John's talk today is titled "Moving Past the Standard Story: Rethinking the Causes of Mass Incarceration," and here is the abstract for this lecture:

Reducing America's exceptional reliance on incarceration is one of the few issues of genuine bipartisan cooperation these days.  Yet despite years of work, change has been slow and halting.  One critical reason is that the story we tell about what has driven prison growth often emphasizes causes that matter less at the expense of those that matter more.
We talk about the impact of long sentences — which certainly matter — but end up overlooking the even more important role of prosecutorial charging behavior in the process.  We emphasize the need to stop sending people to prison for drugs, but as a result fail to talk about changing how we punish those convicted of violence — even though only 15% of the prison population is serving time for drugs, compared to over 50% for violence.  And reformers frequently direct their attention on private prisons, and thus don't focus on the fact that public institutions hold over 90% of all inmates, and that (public) correctional officer unions and legislators with public prisons in their districts play far bigger roles than the private prison firms in pushing back against reform efforts.  Even the modest reductions in prison populations since 2010 are something to celebrate, but more substantive cuts will require us to start asking tougher questions about the sorts of changes we need to demand.

April 12, 2018 in Scope of Imprisonment | Permalink | Comments (8)

Tuesday, April 10, 2018

Looking into the modern state of the private prison industry in the states

The New York Times has this new extended article on the private prison industry as it operates in the states under the headline "Escapes, Riots and Beatings. But States Can’t Seem to Ditch Private Prisons." Here are excerpts:

In Arizona in 2015, a riot broke out in a private prison where previously three inmates had escaped and murdered a vacationing couple. After order was restored, the state revoked the contract of Management & Training Corporation and hired another private prison firm, the GEO Group.

Three years earlier, the GEO Group had surrendered its contract to run a Mississippi prison after a federal judge ruled that the inmates had not been protected from gang violence. The replacement: Management & Training Corporation.

The staying power of the two companies shows how private prisons maintain their hold on the nation’s criminal justice system despite large-scale failures.  The field is dominated by a handful of companies who have swallowed the competition and entrenched their positions through aggressive lawyering, intricate financial arrangements and in some cases, according to lawsuits by the Mississippi attorney general, bribery and kickbacks....

Private prison companies can be found at every level of government, housing 9 percent of the nation’s prisoners.  They emerged in the 1980s, when the number of inmates was quickly outstripping capacity, and they have an outsize influence in certain states, including Arizona, Florida, Hawaii, Mississippi and New Mexico.

Despite hundreds of lawsuits, findings that private prisons save taxpayers little to no money, and evidence of repeated constitutional violations, the number of privately housed inmates has risen faster since 2000 than the overall number of prisoners.  In 2016, the number rose by about 1.5 percent, according to Justice Department figures....

Even states that have sworn off private prisons, or tried to cut back on their use, have found it difficult to extricate themselves.  After the prisoners escaped in Arizona, the state tried to reduce the number of inmates held in that prison. But MTC claimed the state was violating its contract, which guaranteed a certain number of beds would be filled. Arizona had to pay the company $3 million. MTC still operates a facility in the state.

States that use private prisons can find themselves limited to a few big players. The largest are GEO Group, based in Florida; CoreCivic (formerly Corrections Corporation of America), based in Tennessee; and MTC, based in Utah. Two of the past four directors of the Federal Bureau of Prisons were later hired by CoreCivic.... The companies employ a variety of strategies, including hiring former corrections officials in high-level positions and giving what are sometimes enormous campaign contributions. GEO Group and CoreCivic gave close to half a million dollars to support Mr. Trump’s candidacy and inauguration. After he was elected, their stock prices soared.

Industry officials say they provide cost-effective ways to house inmates, and that they continue to expand into rehabilitation programs as more states seek alternatives to prison. CoreCivic says about 10,000 people in its facilities have obtained high school equivalency diplomas in the past five years, reflecting the company’s efforts to improve the ability of inmates to re-enter society.  But some lawmakers say the claims of cost savings and other benefits do not check out. “There is no convincing argument of why we should have private prisons,” said Mike Fasano, a former Republican state senator from Pasco County, Fla., who voted against a 2012 measure to privatize much of Florida’s prison system....

Much of the industry’s power, critics say, is linked to campaign donations. GEO Group and CoreCivic have given nearly $9 million over the past fifteen years to state candidates and parties across the United States, with the overwhelming majority to Republicans, according to the National Institute on Money in State Politics.  The two companies have also spent between $3 million and $4 million annually on lobbying, according to data from the institute and from the nonprofit Center for Responsive Politics.  Steve Owen, a CoreCivic spokesman, said the magnitude of lobbying and campaign contributions was not unusual for an industry of its size.

The industry also promises savings.  But such claims have been disputed, partly because many contracts allow the private prisons to cherry-pick the healthiest inmates while leaving those who need more care to publicly run facilities, making private prisons appear to be cheaper to run, critics say.  The Justice Department’s inspector general concluded in 2016 that it could not accurately compare costs, partly because of “the different nature of the inmate populations and programs offered in those facilities.”

The department ordered a phasing-out of private facilities that year, saying they “compare poorly” with government prisons and citing a lack of substantial cost savings. One month after Mr. Trump’s inauguration, the department rescinded the decision....

In some communities, private prisons have become such large taxpayers and employers that backers have forecast economic doom in arguing against their closing. Perhaps no town is now as dependent as Eloy, Ariz., where four private prisons pay $2 million of the town’s $12.5 million annual operating budget, according to the city manager, Harvey Krauss.

Last week the NY Times had this other article looking at private prison realities under the headline "Inside a Private Prison: Blood, Suicide and Poorly Paid Guards."

April 10, 2018 in Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (2)

Friday, April 06, 2018

Making the case for making the best of federal sentencing changes in the form of prison reform

Lars Trautman has this notable new Hill commentary, headlined "Incentivized early release the right path to sentencing reform under Trump-Sessions," making the argument that advocates ought to pursue even limited prison reform if that is the only form of politically viable federal sentencing reform. Here are excerpts:

The heated “tough-on-crime” rhetoric of the president and many in his administration has greatly complicated criminal justice reform efforts and left Congress scrambling to figure out how to make sentencing reform palatable to the White House.  The problem has become particularly acute after the attorney general summarily dismissed one of the Senate’s leading proposals and the White House sent Congress a set of criminal justice priorities that pointedly ignored front-end sentencing reforms.

So how can Congress possibly move the needle on something as controversial as federal sentencing reform under this administration?

By passing sentencing reform that doesn’t look like sentencing reform.  Plans that reduce the potential penalties for certain offenses or provide other sentencing safety valves have struggled because they focus on the crime committed, essentially forcing proponents to argue that an individual deserves less punishment for a given offense. This is a fundamentally moral issue that has no easy answer.  It’s particularly susceptible to emotional appeals that couple a shared sense of outrage at criminal behavior with a fear of emboldening criminals.

As long as the focus remains on the wrong perpetrated, opponents are able to falsely claim that it’s impossible to be in favor of both victims and criminals, and then portray themselves as defenders of the former....  As worthy and necessary as this kind of front-end reform may be, demanding its inclusion is much more likely to frustrate than achieve any criminal justice reform.

So, if traditional sentencing reform is dead in the water, what’s left?  Reentry programs that offer prisoners the opportunity to shorten their sentences on the back-end would be a good place to begin.  Rather than trimming sentences from the start, these programs allow prisoners to earn credits toward early release by participating in programs intended to help reintegrate them into society and reduce their propensity to reoffend.  Although they face some of the same political resistance as front-end sentencing reductions, it is significantly easier to overcome.

These programs avoid many of the usual pitfalls that sentencing reform legislation encounters because they shift the narrative from one of retribution to redemption, from past wrong to future promise.  Instead of getting bogged down on issues like whom to punish and for how long, politicians are able to talk about what comes next.  Leaving the nominal sentence unchanged insulates these reforms from charges that they don’t adequately reflect the egregiousness of a given crime or that they will negatively impact deterrence.  Public safety and prison budgets are both improved as prisoners are given the tools to leave prison and never return.

Reentry programs also represent a more targeted approach to early release that is eminently easier to defend. This further moves the debate to more favorable terrain by limiting discussion only to those prisoners who have taken the initiative and successfully completed programs to reduce their risk of reoffending. Instead of having to defend the early release of all offenders, including those who may be unrepentant or otherwise incorrigible, proponents need only support those who have actively taken steps to better reintegrate themselves into society....

With opportunities for movement on criminal justice reform likely few and far between under this administration, reformers need to pick their fights more wisely. Demanding upfront sentencing reductions may feel righteous, but in the face of our current political intransigence it will likely do little to help those serving unnecessarily long sentences. Such energies are better spent working to expand the use of incentivized early release and ensure that it actually results in the conclusion of a sentence in legislation such as Rep. Doug Collins' (R-Ga.) Prison Reform and Redemption Act.

While there is much more that can and should be done on sentencing reform, for now at least, Congress should focus on progress that might actually garner a presidential signature.

April 6, 2018 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Scope of Imprisonment, Who Sentences | Permalink | Comments (8)

Tuesday, April 03, 2018

A window into carceral concerns in incarceration nation: "build another prison" to deal with "loss of coal work"

A helpful reader sent me this AP story headlined "Federal prison project in Kentucky wins final approval," which highlights how the building of cages gets celebrated as a form of economic development (using federal tax dollars).  Here are excerpts from the piece:

Federal officials have approved a long-discussed plan to build another prison in eastern Kentucky, sealing a deal to bring hundreds of jobs to an area hard hit by the loss of coal work.

U.S. Rep. Hal Rogers said he was notified Friday by Attorney General Jeff Sessions that the Letcher County project had cleared a final hurdle with federal prisons officials.  The Republican congressman said the project will be a "long-term economic shot in the arm" for the region.

"With funding in place and the completion of environmental studies, today's announcement is a tremendous milestone for Letcher County and the surrounding area," Rogers said Friday.... The prison is expected to have 300 to 400 employees, Rogers said. A 700-acre site on reclaimed mine land in Roxana was selected for the facility by federal officials....

The announcement comes as the area's economy has been reeling from a big downturn in the coal sector.  "We certainly need the job growth around here since the coal industry has dried up," Letcher County Jailer Don McCall said Saturday in praising the announcement.  "I think it's going to be a real economic boost for our little area."...

It could take four to five years to build the prison, but an estimated 1,000 or more construction jobs will provide a quick boost for the area's economy, Letcher County Judge-Executive Jim Ward told the Lexington Herald-Leader.  The prison project had drawn resistance from some local residents uncomfortable about connecting the county's economy to a prison.

Rogers was the driving force behind landing federal money for the project.  He secured an initial $5 million in the federal budget in 2006 to search for potential sites.  The veteran congressman steered nearly $500 million needed to build the prison while he was the powerful chairman of the House Appropriations Committee.

The Letcher County project marks the fourth prison that Rogers had helped bring to his district during his time in Congress.  The others are in McCreary, Martin and Clay counties.

UPDATE: A helpful reader made sure I saw this terrific lengthy NBC News piece from last week covering this same story under the headline "DOES AMERICA NEED ANOTHER PRISON?"  Here is an excerpt from a piece that merits a full read:

Around the country, impoverished rural communities have pursued prisons in the hope that they will deliver them from economic hardship. This began three decades ago, when America’s rush to imprison coincided with the loss of farms, factories and other traditional sources of work that bolstered rural life. The need hasn’t diminished, as rural America still seeks a path out of the Great Recession. But the exchange of land is no longer as promising what it once was.

As incarceration rates have fallen, and the country re-evaluates whether locking people up is sound criminal justice policy, many states are closing prisons, forcing rural towns that invested their futures in bars and barbed wire to find new uses for the buildings, as well as new economic engines.

Letcher County, with 22,700 people in the southern Appalachian Mountains, appears stuck with no other solution.

“In much of rural America we get our identity from what we used to do: We used to be miners, farmers, loggers, we used to work at the plant. And as that work goes away, we want to feel like we’re part of the American story and we’re making a contribution,” said Dee Davis, president of the Center for Rural Strategies, a nonprofit based in Whitesburg that advocates for rural communities. “Politicians have just a few arrows in their quiver, and one of them is prisons, which, whether they work or not, they seem like they’re a big deal. It’s the one thing they give to rural.”

April 3, 2018 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (9)

Friday, March 30, 2018

US District Judge concludes Miller applies to 18-year-old murderer to find his mandatory LWOP sentence violates the Eighth Amendment

I just saw this fascinating federal ruling handed down yesterday by US District Judge Janet C. Hall, the Chief Judge of the US District Court for the District of Connecticut, in Cruz v. US, No. 11-CV-787 (D. Conn. March 29, 2018) (available here). The ruling runs 50+ pages, so I will need to read it carefully before opining about it at length. But these excerpts from the start art end of the opinion should reveal why it is worth attention:

Cruz turned 18 on December 25, 1993. On May 14, 1994, when Cruz was 18 years and 20 weeks old, Cruz and another member of the Latin Kings, Alexis Antuna, were given a mission by gang leader Richard Morales. See United States v. Diaz, 176 F.3d 52, 84 (2d Cir. 1999). The mission was to kill Arosmo “Rara” Diaz. See id. Carrying out that mission, Cruz and Antuna shot and killed Diaz and his friend, Tyler White, who happened to be with Diaz at the time. See id. Cruz testified at the hearing before this court that he now admits to committing both murders. See Cruz Tr. at 27. He further testified that Antuna informed him at the time that the leaders of the Latin Kings were debating what would happen to him as a result of his attempt to leave the gang. See id. at 19. According to his testimony, Cruz believed that, if he did not carry out the mission, he himself would be killed. See id....

[W]hen the Roper Court drew the line at age 18 in 2005, the Court did not have before it the record of scientific evidence about late adolescence that is now before this court.

Thus, relying on both the scientific evidence and the societal evidence of national consensus, the court concludes that the hallmark characteristics of juveniles that make them less culpable also apply to 18-year-olds.  As such, the penological rationales for imposing mandatory life imprisonment without the possibility of parole cannot be used as justification when applied to an 18-year-old.

The court therefore holds that Miller applies to 18-year-olds and thus that “the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole” for offenders who were 18 years old at the time of their crimes.  See Miller, 567 U.S. at 479.  As applied to 18-year-olds as well as to juveniles, “[b]y making youth (and all that accompanies it) irrelevant to imposition of that harshest prison sentence, such a scheme poses too great a risk of disproportionate punishment.” See id.  As with Miller, this Ruling does not foreclose a court’s ability to sentence an 18-year-old to life imprisonment without parole, but requires the sentencer to take into account how adolescents, including late adolescents, “are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.” See id. at 480.

I think it a near certainty that the feds will appeal this consequential ruling to the Second Circuit and it will be interesting to watch how that court approaches this issue. And, in all likelihood, whatever the outcome in the Second Circuit, a cert petition would follow. So, stay tuned.

March 30, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Monday, March 26, 2018

"Deviancy, Disability, and Dependency: The Forgotten History of Eugenics and Mass Incarceration"

The title of this post is the title of this new paper authored by Laura Appleman now available via SSRN. Here is the abstract:

Racism, harsh drug laws, and prosecutorial overreach have formed three widely-discussed explanations of the punitive carceral state.  These three narratives, however, only partially explain where we are.  Neglected in our discussion of mass incarceration is our largely-forgotten history of the long-term, wholesale institutionalization of the disabled.  This form of mass detention, motivated by a continuing application of eugenics and persistent class-based discrimination, provides an important part of our history of imprisonment, shaping key contours of our current supersized correctional system.  Only by fully exploring this forgotten narrative of long-term detention and isolation will policy makers be able to understand, diagnose, and solve the crisis of mass incarceration.

March 26, 2018 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Sunday, March 25, 2018

"Prison Crime and the Economics of Incarceration"

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

As America’s prison and jail populations have skyrocketed, a wealth of empirical scholarship has emerged to measure the benefits and costs of incarceration.  The benefits, from an empirical perspective, consist of the amount of crime prevented by locking people up, as well as the value of that prevented crime to society.  The costs consist of direct state expenditures, lost inmate productivity, and a host of other collateral harms.  Once these benefits and costs are quantified, empirical scholars are able to assess whether it “pays,” from an economic perspective, to incarcerate more or fewer criminals than we currently do.

Drawing on this academic literature, policymakers at all levels of government have begun using cost-benefit analysis to address a wide range of criminal justice issues. In addition to evaluating broader proposals to increase or decrease incarceration rates, policymakers are assessing the costs and benefits of myriad narrower reforms that implicate the economics of incarceration.  In each of these areas, policymakers rely heavily on empirical scholars’ work, whether by adopting their general methods or incorporating their specific results.

While these economic analyses of incarceration offer important insights, they suffer from a near-universal flaw: they fail to account for crime that occurs within prisons and jails. Instead, when scholars and policymakers measure the benefits of incarceration, they look only to crime prevented “in society.”  Similarly, when they measure the costs, they ignore the pains of victimization suffered by inmates and prison staff.  This exclusion is significant, as prison crime is rampant, both in relative and absolute terms.

To address this oversight, this Article makes several contributions: First, it provides a comprehensive review of the literature on the benefits and costs of incarceration, and it explores a range of ways in which policymakers are applying this economic framework.  Second, it makes a sustained normative argument for the inclusion of prison crime in our economic calculus.  Third, it draws on the scarce available data to estimate the impact that the inclusion of prison crime has on our cost-benefit analyses.  As might be expected, once prison crime is accounted for, the economics of incarceration become significantly less favorable.

March 25, 2018 in National and State Crime Data, Offense Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (3)

Friday, March 23, 2018

Brennen Center releases new report: "Criminal Justice: An Election Agenda for Candidates, Activists, and Legislators"

The Brennan Center today released this notable new report titled, "Criminal Justice: An Election Agenda for Candidates, Activists, and Legislators." Here is its executive summary reprinted here:

This report sets forth an affirmative agenda to end mass incarceration in America.  The task requires efforts from both federal and state lawmakers.

Today, criminal justice reform stands on a knife’s edge.  After decades of rising incarceration and ever more obvious consequences, a powerful bipartisan movement has emerged. It recognizes that harsh prison policies are not needed to keep our country safe.

Now that extraordinary bipartisan consensus is challenged by the Trump administration, through inflammatory rhetoric and unwise action.  Only an affirmative move to continue reform can keep the progress going.

The United States has less than five percent of the world’s population, but nearly one quarter of its prisoners. About 2.1 million people are incarcerated in this country, the vast majority in state and local facilities.  Mass incarceration contributes significantly to the poverty rate. It is inequitable, placing a disproportionate burden on communities of color. It is wildly expensive, in some cases costing more to keep an 18-year-old in prison than it would to send him to Harvard.  Our criminal justice system costs $270 billion annually, yet does not produce commensurate public safety benefits.

Research conclusively shows that high levels of imprisonment are simply not necessary to protect communities.  About four out of every ten prisoners are incarcerated with little public safety justification.  In fact, 27 states have reduced both imprisonment and crime in the last decade.  A group of over 200 police chiefs, prosecutors, and sheriffs has formed, whose founding principles state: “We do not believe that public safety is served by a return to tactics that are overly punitive without strong purpose . . . we cannot incarcerate our way to safety.”

In cities, states, and at the federal level, Republicans and Democrats have joined this effort.  They recognize that today’s public safety challenges demand new and innovative politics rooted in science and based on what works. The opioid epidemic, mass shootings, and cyber-crime all require modern responses that do not repeat mistakes of the past.

Crime is no longer a wedge issue, and voters desire reform.  A 2017 poll from the Charles Koch Institute reveals that 81 percent of Trump voters consider criminal justice reform important.  Another, from Republican pollster Robert Blizzard, finds that 87 percent of Americans agree that nonviolent offenders should be sanctioned with alternatives to incarceration.  And according to a 2017 ACLU poll, 71 percent of Americans support reducing the prison population — including 50 percent of Trump voters.

But the politician with the loudest megaphone has chosen a different, destructive approach.  Donald Trump, and his Attorney General Jeff Sessions, falsely insist there is a national crime wave, portraying a country besieged by crime, drugs, and terrorism — “American carnage,” as he called it in his inaugural address.

But, crime in the United States remains at historic lows.  While violent crime and murder did increase in 2015 and 2016, new data show crime and violence declining again in 2017. The national murder rate is approximately half of what it was at its 1991 peak.  Those who seek to use fear of crime for electoral gain are not just wrong on the statistics; they are also wrong on the politics.

Now, to continue the progress that has been made, it is up to candidates running for office to boldly advance policy solutions backed by facts, not fear.  This report offers reforms that would keep crime low, while significantly reducing incarceration.  Most solutions can be enacted through federal or state legislation.  While most of the prison population is under control of state officials, federal policy matters too.  The federal government’s prison population is larger than that of any state.  Further, Washington defines the national political conversation on criminal justice reform.  And although states vary somewhat in their approach to criminal justice, they struggle with similar challenges. The state solutions in this report are broadly written as “models” that can be adapted.

Steps to take include:

• Eliminating Financial Incentives for Incarceration

• Enacting Sentencing Reform

• Passing Sensible Marijuana Reform

• Improving Law Enforcement

• Responding to the Opioid Crisis

• Reducing Female Incarceration

March 23, 2018 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Recommended reading, Scope of Imprisonment, Who Sentences | Permalink | Comments (6)

Monday, March 19, 2018

Justice Sotomayor suggests "reconsideration of other sentencing practices in the life-without-parole context"

I noted in this prior post denial of cert in the closely-watched capital case of Hidalgo v. Arizona, and Justice Breyer's statement respecting the denial of certiorari in Hidalgo was not even the most interesting such statement on this morning's SCOTUS order list.  That honor goes to Justice Sotomayor's statement respecting the denial of certiorari in Campbell v. Ohio, which suggests importing more of the Eighth Amendment's procedural protections for the death penalty to life without parole sentencing. I recommend this four-page statement in full, and here are snippets:

Because of the parallels between a sentence of death and a sentence of life imprisonment without parole, the Court has drawn on certain Eighth Amendment requirements developed in the capital sentencing context to inform the life-without-parole sentencing context....

The “correspondence” between capital punishment andlife sentences, Miller, 567 U. S., at 475, might similarly require reconsideration of other sentencing practices in the life-without-parole context. As relevant here, the Eighth Amendment demands that capital sentencing schemes ensure “measured, consistent application and fairness to the accused,” Eddings v. Oklahoma, 455 U. S. 104, 111 (1982), with the purpose of avoiding “the arbitrary or irrational imposition of the death penalty,” Parker v. Dugger, 498 U. S. 308, 321 (1991). To that aim, “this Court has repeatedly emphasized that meaningful appellate review of death sentences promotes reliability and consistency.” Clemons v. Mississippi, 494 U. S. 738, 749 (1990)...

Our Eighth Amendment jurisprudence developed in the capital context calls into question whether a defendant should be condemned to die in prison without an appellate court having passed on whether that determination properly took account of his circumstances, was imposed as a result of bias, or was otherwise imposed in a “freakish manner.”  And our jurisprudence questions whether it is permissible that Campbell must now spend the rest of his days in prison without ever having had the opportunity to challenge why his trial judge chose the irrevocability of life without parole overthe hope of freedom after 20, 25, or 30 years.

March 19, 2018 in Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Saturday, March 17, 2018

"Mass Incarceration: The Whole Pie 2018"

Pie2018The Prison Policy Initiative has an updated version of its terrific incarceration "pie" graphic and report now at this link. Here is part of the report's introductory text and subsequent discussion:

Can it really be true that most people in jail are being held before trial? And how much of mass incarceration is a result of the war on drugs? These questions are harder to answer than you might think, because our country’s systems of confinement are so fragmented. The various government agencies involved in the justice system collect a lot of critical data, but it is not designed to help policymakers or the public understand what’s going on. Meaningful criminal justice reform that reduces the massive scale of incarceration, however, requires that we start with the big picture.

This report offers some much needed clarity by piecing together this country’s disparate systems of confinement. The American criminal justice system holds almost 2.3 million people in 1,719 state prisons, 102 federal prisons, 1,852 juvenile correctional facilities, 3,163 local jails, and 80 Indian Country jails as well as in military prisons, immigration detention facilities, civil commitment centers, state psychiatric hospitals, and prisons in the U.S. territories. And we go deeper to provide further detail on why people are locked up in all of those different types of facilities.

This big-picture view allows us to focus on the most important drivers of mass incarceration and identify important, but often ignored, systems of confinement. The detailed views bring these overlooked parts of the “pie” to light, from immigration detention to civil commitment and youth confinement. In particular, local jails often receive short shrift in larger discussions about criminal justice, but they play a critical role as “incarceration’s front door” and have a far greater impact than the daily number suggests.

While this pie chart provides a comprehensive snapshot of our correctional system, the graphic does not capture the enormous churn in and out of our correctional facilities and the far larger universe of people whose lives are affected by the criminal justice system. Every year, 626,000 people walk out of prison gates, but people go to jail 10.6 million times each year. Jail churn is particularly high because most people in jails have not been convicted. Some have just been arrested and will make bail in the next few hours or days, and others are too poor to make bail and must remain behind bars until their trial. Only a small number (150,000 on any given day) have been convicted, generally serving misdemeanors sentences under a year.

With a sense of the big picture, a common follow-up question might be: how many people are locked up for a drug offense? We know that almost half a million people are locked up because of a drug offense. The data confirms that nonviolent drug convictions are a defining characteristic of the federal prison system, but play only a supporting role at the state and local levels. While most people in state and local facilities are not locked up for drug offenses, most states’ continued practice of arresting people for drug possession destabilizes individual lives and communities. Drug arrests give residents of over-policed communities criminal records, which then reduce employment prospects and increase the likelihood of longer sentences for any future offenses....

While this “whole pie” provides the most inclusive view of the various systems of confinement in the U.S. justice system available, these snapshots can’t capture all of the important systemic issues. Once we have wrapped our minds around the “whole pie” of mass incarceration, for example, we should zoom out and note that being locked up is just one piece of the larger pie of correctional control. There are another 840,000 people on parole and a staggering 3.7 million people on probation. Particularly given the often onerous conditions of probation, policymakers should be cautious of “alternatives to incarceration” that can easily widen the net of criminalization to people who are not a threat to public safety.

Beyond identifying the parts of the criminal justice system that impact the most people, we should also focus on who is most impacted and who is left behind by policy change. For example, people of color are dramatically overrepresented in the nation’s prisons and jails. These racial disparities are particularly stark for Blacks, who make up 40% of the incarcerated population despite representing only 13% of U.S residents. Gender disparities matter too: rates of incarceration have grown even faster for women than for men. As policymakers continue to push for reforms that reduce incarceration, they should avoid changes that will widen disparities, as has happened with juvenile confinement and with women in state prisons....

[A]rmed with the big picture of how many people are locked up in the United States, where, and why, we have a better foundation for the long overdue conversation about criminal justice reform. For example, the data makes it clear that ending the War on Drugs will not alone end mass incarceration, but that the federal government and some states have effectively reduced their incarcerated populations by turning to drug policy reform. Looking at the “whole pie” also opens up other conversations about where we should focus our energies:

  • What is the role of the federal government in ending mass incarceration? The federal prison system is just a small slice of the total pie, but the federal government can certainly use its financial and ideological power to incentivize and illuminate better paths forward. At the same time, how can elected sheriffs, district attorneys, and judges slow the flow of people into the criminal justice system?
  • Are state officials and prosecutors willing to rethink both the War on Drugs and the reflexive policies that have served to increase both the odds of incarceration and length of stay for “violent” offenses?
  • Do policymakers and the public have the focus to confront the second largest slice of the pie: the thousands of locally administered jails? And does it even make sense to arrest millions of poor people each year for minor offenses, make them post money bail, and then lock them up when they can’t afford to pay it? Will our leaders be brave enough to redirect corrections spending to smarter investments like community-based drug treatment and job training?
  • Can we implement reforms that both reduce the number of people incarcerated in the U.S. and the well-known racial and ethnic disparities in the criminal justice system?

March 17, 2018 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2)

Sunday, March 11, 2018

"More Imprisonment Does Not Reduce State Drug Problems"

The title of this post is the title of this notable new Issue Brief from Pew with a message summarized by the document's subtitle: "Data show no relationship between prison terms and drug misuse." Here is the document's overview:

Nearly 300,000 people are held in state and federal prisons in the United States for drug-law violations, up from less than 25,000 in 1980.  These offenders served more time than in the past: Those who left state prisons in 2009 had been behind bars an average of 2.2 years, a 36 percent increase over 1990, while prison terms for federal drug offenders jumped 153 percent between 1988 and 2012, from about two to roughly five years.

As the U.S. confronts a growing epidemic of opioid misuse, policymakers and public health officials need a clear understanding of whether, how, and to what degree imprisonment for drug offenses affects the nature and extent of the nation’s drug problems.  To explore this question, The Pew Charitable Trusts examined publicly available 2014 data from federal and state law enforcement, corrections, and health agencies.  The analysis found no statistically significant relationship between state drug imprisonment rates and three indicators of state drug problems: self-reported drug use, drug overdose deaths, and drug arrests.

The findings — which Pew sent to the President’s Commission on Combating Drug Addiction and the Opioid Crisis in a letter dated June 19, 2017 — reinforce a large body of prior research that cast doubt on the theory that stiffer prison terms deter drug misuse, distribution, and other drug-law violations.  The evidence strongly suggests that policymakers should pursue alternative strategies that research shows work better and cost less.

March 11, 2018 in Data on sentencing, Drug Offense Sentencing, National and State Crime Data, Scope of Imprisonment | Permalink | Comments (1)

Friday, March 09, 2018

"Can We Wait 75 Years to Cut the Prison Population in Half?"

The title of this post is the title of this short "Policy Brief" from The Sentencing Project.  Here is how it starts and concludes:

The U.S. prison population grew by more than 600% between 1973 and 2009 — from 200,000 people to 1.6 million.  Tough-on-crime policies expanded the number of imprisoned people even while crime rates plunged to 40% below their levels in the 1990s.  In recent years, policymakers and criminal justice professionals have implemented reforms to correct the punitive excesses of the past.  By yearend 2016 the number of people held in U.S. prisons had declined by 6% since a 2009 peak, and crime rates have continued to decline.

But the overall impact of reforms has been quite modest. With 1.5 million people in prison in 2016, the prison population remains larger than the total population of 11 states.3 If states and the federal government maintain their recent pace of decarceration, it will take 75 years — until 2093 — to cut the U.S. prison population by 50%.  Expediting the end of mass incarceration will require accelerating the end of the Drug War and scaling back sentences for serious crimes....

Just as mass incarceration was developed primarily as a result of changes in policy, not crime rates, so too has decarceration reflected changes in both policy and practice.  These have included such measures as drug policy sentencing reforms, reduced admissions to prison for technical parole violations, and diversion options for persons convicted of lower-level property and drug crimes.

The movement to end mass incarceration not only faces political reluctance to meaningfully reduce the U.S. prison population, it has also had to address renewed calls to further expand the prison population, including: increasing prison terms for immigration law violations, reversals of Obama-era reforms in federal sentencing, and punitive responses to the opioid crisis.  While defending the progress made in recent years, we must also strive for criminal justice reforms bold enough to tackle mass incarceration.

March 9, 2018 in Drug Offense Sentencing, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2)