Wednesday, November 05, 2014

California sentencing reform initiative Prop 47 wins big getting almost 60% support

As repoted in this Huffinton Post piece, "California approved a major shift against mass incarceration on Tuesday in a vote that could lead to the release of thousands of state prisoners."  Here are the basics from a piece headlined "California Voters Deal Blow To Prisons, Drug War":

Nonviolent felonies like shoplifting and drug possession will be downgraded to misdemeanors under the ballot measure, Proposition 47.  As many as 10,000 people could be eligible for early release from state prisons, and it's expected that courts will annually dispense around 40,000 fewer felony convictions.

The state Legislative Analyst's Office estimates that the new measure will save hundreds of millions of dollars on prisons.  That money is to be redirected to education, mental health and addiction services -- a novel approach that reformers hope will serve as a model in the larger push against mass incarceration.

This official webpage with California ballot measure voting results reports that Prop 47 received 58.5% of votes in support. This big margin of victory strikes me as big news that can and should further propel the political narrative that, at least in some places, significant numbers of voters are significantly interested in significant sentencing reform.

November 5, 2014 in Drug Offense Sentencing, Offense Characteristics, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1) | TrackBack

Saturday, November 01, 2014

Documenting modern state investments in schools and prisons

OriginalAs reported in this Huffington Post piece, headlined "States Are Prioritizing Prisons Over Education, Budgets Show," a new analysis of state-level spending highlights that states have devoted taxpayer resources in recent years a lot more to prisons relative to schools. Here are the basics from a new report via the HuffPost's summary:

If state budget trends reflect the country's policy priorities, then the U.S. currently values prisoners over children, a new report suggests.

A report released this week by the Center on Budget and Policy Priorities shows that the growth of state spending on prisons in recent years has far outpaced the growth of spending on education. After adjusting for inflation, state general fund spending on prison-related expenses increased over 140 percent between 1986 and 2013. During the same period, state spending on K-12 education increased only 69 percent, while higher education saw an increase of less than six percent.

State spending on corrections has exploded in recent years, as incarceration rates have more than tripled in a majority of states in the past few decades. The report says that the likelihood that an offender will be incarcerated has gone up across the board for all major crimes. At the same time, increases in education spending have not kept pace. In fact, since 2008, spending on education has actually declined in a majority of states in the wake of the Great Recession....

Michael Mitchell, a co-author of the report and a policy analyst with the Center on Budget and Policy Priorities, suggested that education spending could actually help lower incarceration rates. “When you look at prisoners, people who get sent to prison and their educational levels, [the levels are] typically much lower than individuals who are not sent to prison," he told The Huffington Post. “Being a high school dropout dramatically increases your likelihood of being sent to prison.”

“Spending so many dollars locking up so many people, those are dollars that inevitably cannot be used to provide pre-K slots … or financial aid for those who want to go to college,” Mitchell added.

The report suggests that states' spending practices are ultimately harming their economies, while not making the states especially safer. The authors ultimately conclude that if “states were still spending the same amount on corrections as they did in the mid-1980s, adjusted for inflation, they would have about $28 billion more available each year for education and other productive investments.”

“The types of investments to help people out of poverty and break that school-to-prison pipeline are investments in early education, helping youth stay in school and getting them college campuses,” said Mitchell.

The full 21-page report from the Center on Budget and Policy Priorities, titled "Changing Priorities: State Criminal Justice Reforms and Investments in Education," can be accessed at this link.

November 1, 2014 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (3) | TrackBack

Notable account of all the advocacy and interests surrounding California's Prop. 47

Today's Los Angeles Times has this lengthy discussion of the advocacy interests surrounding the big criminal justice initiative on the California ballot this election season. The piece is headlined "Prop. 47 puts state at center of a national push for sentencing reform," and here are excerpts:

The statewide initiative on Tuesday's ballot to reduce penalties for illicit drug use and petty theft is part of a multimillion-dollar campaign to revise sentencing laws in California and across the nation.

Five major foundations, headlined by a philanthropic group run by New York billionaire George Soros, have poured millions of dollars to push for changes in California's policies on crime and imprisonment.  The campaign is aimed at shaping public opinion, media coverage, research and grass-roots activism on the issue.

Proposition 47 would reclassify possession of heroin, methamphetamine and other illegal drugs, and theft of $950 or less, as misdemeanors in California. If the measure passes, California will become the first state to "de-felonize" all drug use, opening the door for similar efforts in other states.

"We hope we're setting a precedent for the nation," said Lynne Lyman, state director of the National Drug Policy Alliance, an active supporter of Proposition 47.  "We are hoping it will signal that we don't need to be so tough on crime all the time."  Proponents of the ballot measure have raised $9 million — at least $2 million of which came from two of the foundations — for their campaign thus far.  Opponents have raised just $526,000, state election records show....

Since 2011, the foundations have awarded at least $14 million in grants to almost three dozen California-based groups that are earmarked for "criminal justice reform" or to influence public opinion. Soros' Open Society Foundations in 2012 also gave a $50-million grant to the National Drug Policy Alliance to "advance drug policy reform" in states across the nation.

The coordination by a few wealthy foundations to change public policy represents a legitimate but worrying form of political influence, said Robert McGuire, who tracks such activity for the Center for Responsive Politics.  The foundation grants are not disclosed publicly in the same way campaign contributions are reported.  Foundation nonprofit tax filings often do not become public until two years after money is spent.  "Nonprofits are allowed to do this, but voters have a right to know what interest is trying to get them to vote a certain way," McGuire said.

The California effort was initiated by Tim Silard, who ran alternative sentencing programs for California Atty. Gen. Kamala Harris when she was San Francisco district attorney, and Dan Zingale, who was chief of staff to then-first lady Maria Shriver....  Silard and Zingale said they sought a strategy that could break the grip of "tough on crime" politics in California....

Coalition members say they are driven by a belief that California — and the rest of the nation — locks up too many people for too long and that public safety would be better served by putting resources toward job training, mental health and drug addiction treatment.  An opening to change that trend surfaced in the U.S. Supreme Court's 2011 ruling that conditions in California's overcrowded prisons were unconstitutionally dangerous, upholding a lower-court order to reduce the prison population....

In 2013, Soros provided money to create a new organization called Vote Safe to launch Proposition 47.  Soros, a hedge fund manager widely known for bankrolling progressive campaigns and a decade-long battle against the war on drugs, has a representative on Vote Safe's three-member advisory board.  The campaign manager for both Citizens for Safety and Justice and Vote Safe is Lenore Anderson, another former aide to Kamala Harris who once ran the public safety offices in San Francisco and Oakland. Anderson said the ballot initiative was encouraged by polls that showed a softening in public attitudes toward criminal punishment.  "The whole country right now is going through transformation in attitudes on criminal justice," she said. "We felt it was a big moment."

Violent crime in California had dropped precipitously, hitting a 45-year low in 2011. In the fall of 2012, California voters passed another Soros-backed initiative to lift three-strikes penalties for nonviolent felons....

Supporters of Proposition 47 also emphasize that drug laws have a disparate impact on Latino and African American communities. Lyman of the Drug Policy Alliance hammered on that point during a Proposition 47 rally at a Los Angeles church a week ago. "The war on drugs and mass incarceration is just an extension of slavery," she said.

Prior related posts on California's Prop 47:

November 1, 2014 in Elections and sentencing issues in political debates, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Friday, October 31, 2014

New reduced federal drug sentencing guidelines about to become official

Hard core federal sentencing nerds know that November 1 is a special day because it is the official date on which any proposed changes to the sentencing guidelines proposed by the US Sentencing Commission become official in the absence of congressional rejection thereof.  Tomorrow, November 1, 2014, is especially notable because it will make official the most significant and consequential reduction in guideline sentencing ranges in history.  This USSC press release, which includes a statement from the chair of the USSC, provides background context for why this is such a big deal: 

[Background:] The United States Sentencing Commission, an independent agency in the judicial branch charged with setting federal sentencing guidelines, voted unanimously in April to reduce sentencing guidelines levels for most drug trafficking offenses and voted unanimously again in July to make that change retroactive.  Because Congress has not acted to disapprove the Commission’s actions, the amendment becomes effective tomorrow.  Offenders sentenced after tomorrow will be sentenced under the new, reduced guidelines, and current prisoners may begin petitioning courts for sentence reductions based on retroactive application of the reduced guidelines. Prisoners can have their sentences reduced if courts determine that they are eligible and a reduction is appropriate, and they may not be released pursuant to such reductions before November 1, 2015.

[Comment by USSC Chair Patti Saris:] “The reduction in drug guidelines that becomes effective tomorrow represents a significant step toward the goal the Commission has prioritized of reducing federal prison costs and overcrowding without endangering public safety.  Commissioners worked together to develop an approach that advances the causes of fairness, justice, fiscal responsibility, and public safety, and I am very pleased that we were able to agree unanimously on this reasonable solution.  I am also gratified that Congress permitted this important reform to go forward.

This amendment is an important start toward addressing the problem of over-incarceration at the federal level. Commission researchers estimate that applying the amendment going forward may reduce the prison population by 6,500 in five years and far more over time, while more than 46,000 current prisoners could be eligible to have their sentences reduced by retroactive application of the amendment.  Still, only Congress can act to fully solve the crisis in federal prison budgets and populations and address the many systemic problems the Commission has found resulting from mandatory minimum penalties.  I hope that Congress will act promptly to pass comprehensive sentencing reform legislation.”

October 31, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

"Shrinking Prisons: Good Crime-Fighting and Good Government"

the title of this post is the headline of this thoughtful new piece from The Atlantic. Here are excerpts:

Liberals have long advocated prison reforms like reduced sentence lengths and alternatives to incarceration. Recently, however, conservatives have put these ideas on the congressional agenda — and their inspiration comes from that bastion of tough-on-crime conservatism, Texas.

Surprising? Perhaps. But seeing this coming didn’t require any sort of crystal ball. One had only to notice the forces driving every trend today: less money, higher expectations, and lower “weight.” Around the world and especially in the United States, both the public and private sectors have been under pressure since the Great Recession to cut costs and make the most of constrained resources. At the same time, consumers have become accustomed to expect better and better performance for their dollars. Many people have dismissed as “immature” or unrealistic the electorate’s expectation that governments provide both lower taxes and more services, but it’s not unreasonable given what the private sector has been able to deliver over the last generation.....

It’s overdue, then, for the public sector to revisit the costliest, least productive, and least “weightless” business lines in its portfolios—human services generally, and the corrections system in particular. What smacks more of outdated big government than large, costly, coercive institutions?

Incarceration as we know it today was originally a “progressive” idea. Compared to the days when every offense was punishable by execution — or at least corporal punishment — and prisons were simply a slow form of death, the modern penitentiary was conceived as a humane instrument of rehabilitation, not just punishment: The idea was that sitting alone in a cell and contemplating one’s transgressions — like a penitent — would lead to self-improvement. A close cousin, historically and conceptually, of the poorhouse and insane asylum, the penitentiary proved as much a misnomer, however, as today’s “corrections.” Nonetheless, along with the notion of redemption through hard work, the concept appealed to Jacksonian reformers and launched the first great era of prison construction in America. The second wave peaked, similarly, with the advent of the Progressive Era, which refined the concept with such additions as parole, probation, and indeterminate sentencing.

The third and latest wave of prison enthusiasm, however, was a reaction—against both liberal modifications to incarceration regimes and the social tumult of the ’60s. The War on Drugs increased the numbers of prisoners and lengthened the duration of sentences. The surge in incarceration also has been directly related to race: African-American males are jailed at about six times the rate of whites and three times the rate of Hispanics.

As a result, the United States today has the highest documented incarceration rate in the world: 743 adults per 100,000 population, or nearly 2.3 million adults, nearly one-quarter of the world’s total prison population. More than twice that number are on probation or parole, with more than 70,000 juveniles in detention, as well — roughly one in every 30 Americans is under supervision of some sort, a seven-fold increase since 1980....

Institutionalized correction, while more expensive, is less effective in reducing most crime than virtually any alternative. A 2001 report by New Jersey’s State Commission on Criminal Resentencing found that alternative sanctions and prisons have very similar effects on recidivism, while alternative sanctions free up prison bed space for more violent offenders. Similarly, a 2002 Justice Policy Institute report on Community Corrections programs in Ohio found shorter stays and lower recidivism or re-incarceration rates for clients from community-based correctional programs than for prison inmates.

As a result, many states — mostly Southern — are changing their approach, and saving money. Oklahoma, which was recently in the spotlight for its hard line on executions, has reduced its prison population by nearly 1,800 prisoners, projected to save the state approximately $120 million over the next 10 years. Georgia has become a leader in the use of “drug courts,” which divert offenders into alternatives to prison.

The Urban Institute reports that eight states — Arkansas, Hawaii, Louisiana, Kentucky, New Hampshire, North Carolina, Ohio, and South Carolina — have reliable enough data to provide preliminary findings on the effects of system reforms. These show early successes in slowing and even reducing prison-population-growth rates.

But the poster child is Texas. In 2007, conservative legislators in Austin were staggered by projections for how much it would cost to run the Department of Criminal Justice if the system went unchanged. The state faced the prospect of building approximately 17,000 new prison beds within five years at a cost of nearly $1.15 billion.  Instead, the legislature budgeted approximately $250 million for community-treatment programs and increased the number of inmates served by in-prison treatment and rehabilitation programs.  In 2009, the state added reentry-program coordinators to help reduce the number of released inmates who return to prison.  Texas’s effort now forms the basis for the bipartisan prison-reform legislation moving through Congress.

This has implications beyond prison reform. Governments today face increasing pressure to cut costs, but their citizens still want and need government services. Elected officials everywhere must figure out how to square this circle—to deliver better service at lower cost.  A major part of the answer will lie in moving from costly, outdated “solutions” based on large one-size-fits-all institutions to individualized, dispersed, home- and community-based solutions that use new technologies and evidence-based strategies....

The corrections field shows most starkly that the conservative critique of liberal programs — large, outdated, costly, and one-sized-fits-all — is valid, but also that the solutions liberals have been advocating for the past several decades, with the benefits of years of experimentation and evidence, provide a path forward.

October 31, 2014 in Elections and sentencing issues in political debates, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Thursday, October 30, 2014

New York Times editorial makes the case for California's Prop 47

Today's New York Times has this editorial headlined "California Leads on Justice Reform: Prop 47 Could Take the State a Step Further in Reducing Overcrowding." Here are excerpts:

For a long time, the conventional political wisdom was that no one ever lost an election for being too tough on crime.  That wisdom has been turned on its head in recent years, as both politicians and the public are realizing how much damage the lock-’em-up mind-set has caused....

A familiar retort is that crime is down precisely because the prisons are full, but that’s simply not true.  Multiple studies show that crime has gone down faster in states that have reduced their prison populations.

An encouraging example comes from California, the site of some the worst excesses of the mass incarceration era, but also some of the more innovative responses to it.  For five years, the state has been under federal court order to reduce extreme overcrowding in its prisons.  In response, voters in 2012 overwhelmingly approved a ballot measure to scale back the state’s notorious “three-strikes” law, leading to the release, so far, of more than 1,900 prisoners who had been serving life in prison — in some cases, for petty theft.

Dire warnings that crime would go up as a result were unfounded.  Over two years, the recidivism rate of former three-strikes inmates is 3.4 percent, or less than one-tenth of the state’s average.  That’s, in large part, because of a strong network of re-entry services.

The 2012 measure has provided the model for an even bigger proposed release of prisoners that California voters will consider on the ballot next week.  Under Proposition 47, many low-level drug and property offenses — like shoplifting, writing bad checks or simple drug possession — would be converted from felonies to misdemeanors.

That would cut an average of about a year off the sentences of up to 10,000 inmates, potentially saving the state hundreds of millions of dollars annually.  To keep people from returning to prison, or from going in the first place, the savings would be invested in anti-truancy efforts and other programs like mental health and drug-abuse treatment. Some would go to victims’ services, a perennially underfinanced part of the justice system.

Law-enforcement officials, not surprisingly, oppose the measure, warning that crime will go up.  But they’ve already been proved wrong on three-strikes reform.  Californians — who support the proposition by a healthy margin, according to polls — have now seen for themselves that they don’t have to choose between reducing prison populations and protecting public safety.

It is very rare for lawmakers anywhere to approve legislation to shorten sentences for people already in prison; it is virtually unheard-of to do it by ballot measure. California’s continuing experiment on sentencing can be a valuable lesson to states around the country looking for smart and safe ways to unravel America’s four-decade incarceration binge.

Prior related posts on California's Prop 47:

October 30, 2014 in Elections and sentencing issues in political debates, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Notable criticism of Pope's advocacy against LWOP and "nurturing mommy" approach to government

9780829441703_p0_v2_s260x420As noted in this post last week, Pope Francis spoke out last week against life imprisonment and harsh sentencing systems focused more on punishment than social justice.  This intriguing new American Spectator commentary by Mark Tooley takes issue with this papal advocacy, and concludes with complaints about governments failing to balance a "nurturing mommy" role with a "stern father role." Here are excerpts from an interestinf read:

Opposing life imprisonment raises questions. Should mass murderers be freed during their active lifetime? And what if they show no sign of remorse or rehabilitation? (My questions come respectfully from a Protestant who appreciates Catholic teaching.)

The Pope’s remarks acknowledged that official Catholic teaching still accepts the state’s rightful power to execute, quoting the Catechism that “the traditional teaching of the church does not exclude recourse to the death penalty, if this is the only possible way of effectively defending human lives against the unjust aggressor.” News reports say he quoted the Catechism that “cases in which the execution of the offender is an absolute necessity are very rare, if not practically nonexistent.” It is not clear but presumably he also included the Catechism phrase immediately before those words, which cites the “possibilities which the state has for effectively preventing crime, by rendering one who has committed an offense incapable of doing harm.”

What power does the state have for “rendering one who has committed an offense incapable of doing harm” except for the option of life imprisonment for recalcitrant murderers? It seems unlikely that many Americans, Catholic or otherwise, will advocate abolishing life imprisonment for heinous crimes. But recently Colorado’s pro-death penalty Republican gubernatorial candidate, a Catholic, recalled that Denver’s former bishop, Charles Chaput, had assured him that church doctrine is not against the death penalty....

The subtleties of Catholic teaching on capital punishment are difficult to translate into media sound bites or political explanations. Pope Francis’s comments against life imprisonment seem to go beyond the letter of the Catechism. Some activist American religionists, Catholic or otherwise, may latch on to them for a new campaign. But such an effort potentially would provoke a backlash and embolden defense of the death penalty.

Much of the American religious political witness today is totally uncomfortable with the state’s divine vocation for punitive action, much less lethal force. The New Testament offers little direct counsel on civil government’s responsibilities except, in St. Paul’s Romans 13, which warns that that “if you do wrong, be afraid, for rulers do not bear the sword for no reason. They are God’s servants, agents of wrath to bring punishment on the wrongdoers.” This language is pretty punitive.

But so much of modern American religious political witness prefers a highly non-punitive version of government. Their preferred vision likens the state to an indulgent, nurturing mommy, whose primary role is to feed, clothe, and ensure health care for all her children, while also welcoming all illegal immigrants, protecting the environment, lecturing against politically incorrect “hate speech,” and offering universal love, while simultaneously disarming in a way ironically that likely inhibits physical protection for her children.

Most of this mommy work the Scriptures and Christian tradition actually assign chiefly to the church, which is metaphorically a mother and the Bride of Christ. The Romans 13 focus for the state more resembles a stern father, who dispenses impartial but severe justice for the protection of his children. This sort of paternal state, unlike the sensitive mommy, reserves its interventions for dangerous misconduct. And it lets its charges pick themselves up from their stumbles, that they might grow strong, not remain immature through ceaseless coddling.

A true balance in society aligns nurturing mommy with stern father, both fulfilling their complementary roles in creation. The absence of one distorts human reality and creates corruption and tragedy. Pope Francis doubtless has earnest reasons for speaking against even life imprisonment. But his sentiments will likely only inspire the chronic mommy vision of the state already preferred by so many do-gooding religionists.

Religious leaders need to restore balance by citing Romans 13 and explaining the punitive, morally imperative stern father role of the state that is divinely ordained and essential for human justice.

Prior related post:

October 30, 2014 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (6) | TrackBack

Tuesday, October 28, 2014

Notable pitch for California Prop 47 based in mental health concerns

This new Sacramento Bee commentary, authored by Darrell Steinberg and Rusty Selix, makes an interesting pitch for Proposition 47 in California. The piece is headlined "Prop. 47 can help fix prison mental health crisis," and here are excerpts:

Earlier this year, Stanford Law School reported that the number of mentally ill people in California prisons doubled from 2000 to 2014; currently 45 percent of prisoners have been treated for mental illness within the past year.

The study also echoed findings by the U.S. Justice Department that mentally ill inmates in state prisons serve 15 months longer than other inmates on average. Such inmates are also stuck, without treatment, in cycles of crime and incarceration.  A study in Los Angeles County found that 90 percent of jail inmates who had been incarcerated two or more times had serious mental health problems.

All this adds up to an incredibly expensive and ineffective approach to both public safety and public health.  So how did we arrive at this crisis?  From the 1950s through the 1970s, California passed laws to move responsibility for mental health care from large state institutions to a model of local, community-based care.  But there never was any follow-through to ensure that infrastructure was created and supported.

As local and state leaders battled over other budgets priorities, mental health beds vanished and nothing materialized at the local level.  As a recent example, California cut 21 percent ($586 million) from mental health programs from 2009 to 2012 -- the most in the nation -- according to the National Alliance on Mental Health. By failing to invest in local treatment and recovery options, it is, sadly, no surprise that people with mental health needs have ended up in our jails, courts and prisons.

And while there needs to be accountability for crimes, warehousing mentally ill people in our prisons -- forcing them to live in crowded, violent and solitary conditions -- does not address the underlying factors of their behavior.  In fact, California is currently under a federal mandate to reduce prison crowding partly because of a lawsuit about inadequate mental health care.

If our goal is to change behavior, then accountability must take into account how to prevent future harm.  In other words, treating mental illness is not simply a moral obligation but also a public safety strategy.  Growing consensus for such a strategy inspired us in 2004 to author the California Mental Health Services Act, a successful voter initiative that produced $7.4 billion for mental health needs and that served 400,000 Californians within its first five years.

We are awed by the impact, but 10 years later we still have far too many people with mental illness cycling in and out of our prisons and jails -- and far too much taxpayer money locked in that same system.  That’s why we support Proposition 47, along with the California Psychiatric Association, some law enforcement officials, crime victims, business leaders and many others.

The Safe Neighborhoods and Schools Act would provide $50 million to $100 million each year for mental health and drug treatment.  It would do so through reduced prison costs, specifically by categorizing six nonviolent, low-level felonies as misdemeanors (e.g., drug possession, petty shoplifting and writing a bad check) that can be addressed with county jail terms, treatment requirements and other forms of accountability.

Prior related posts on California's Prop 47:

October 28, 2014 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Thursday, October 23, 2014

"How Changes in American Culture Triggered Hyper-Incarceration: Variations on the Tazian View"

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

American imprisonment rates are far higher than the rates in virtually every Western country, even after taking into account differing rates of crime.  The late Professor Andrew Taslitz suggested that at least one explanation for this puzzle is the relative lack of “populist, deliberative democracy” in the United States.

This article, written for a symposium honoring Professor Taslitz, examines that thesis from a comparative perspective, looking in particular at how differences between American and European attitudes toward populism, capitalism, religiosity, racial attitudes and proceduralism may have led to increased incarceration rates.  It also tries to explain another puzzle that has received little attention: why these cultural differences, which have existed for some time, only had an impact on incarceration rates after the 1960s.

October 23, 2014 in Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentencing around the world | Permalink | Comments (6) | TrackBack

Pope Francis now advocating for total abolition of LWOP sentences as well as the death penalty

As reported in this story from the Catholic News Service, the leader of the Catholic Church can now be added to the list of persons vocally advocating against life without parole sentences.  Here are the details:

Pope Francis called for abolition of the death penalty as well as life imprisonment, and denounced what he called a "penal populism" that promises to solve society's problems by punishing crime instead of pursuing social justice.

"It is impossible to imagine that states today cannot make use of another means than capital punishment to defend peoples' lives from an unjust aggressor," the pope said Oct. 23 in a meeting with representatives of the International Association of Penal Law.

"All Christians and people of good will are thus called today to struggle not only for abolition of the death penalty, whether it be legal or illegal and in all its forms, but also to improve prison conditions, out of respect for the human dignity of persons deprived of their liberty. And this, I connect with life imprisonment," he said. "Life imprisonment is a hidden death penalty." The pope noted that the Vatican recently eliminated life imprisonment from its own penal code.

According to the Catechism of the Catholic Church, cited by Pope Francis in his talk, "the traditional teaching of the church does not exclude recourse to the death penalty, if this is the only possible way of effectively defending human lives against the unjust aggressor," but modern advances in protecting society from dangerous criminals mean that "cases in which the execution of the offender is an absolute necessity are very rare, if not practically nonexistent."...

The pope denounced the detention of prisoners without trial, who he said account for more than 50 percent of all incarcerated people in some countries. He said maximum security prisons can be a form of torture, since their "principal characteristic is none other than external isolation," which can lead to "psychic and physical sufferings such as paranoia, anxiety, depression and weight loss and significantly increase the chance of suicide." He also rebuked unspecified governments involved in kidnapping people for "illegal transportation to detention centers in which torture is practiced."

The pope said criminal penalties should not apply to children, and should be waived or limited for the elderly, who "on the basis of their very errors can offer lessons to the rest of society. We don't learn only from the virtues of saints but also from the failings and errors of sinners."

Pope Francis said contemporary societies overuse criminal punishment, partially out of a primitive tendency to offer up "sacrificial victims, accused of the disgraces that strike the community." The pope said some politicians and members of the media promote "violence and revenge, public and private, not only against those responsible for crimes, but also against those under suspicion, justified or not."

He denounced a growing tendency to think that the "most varied social problems can be resolved through public punishment ... that by means of that punishment we can obtain benefits that would require the implementation of another type of social policy, economic policy and policy of social inclusion." Using techniques similar to those of racist regimes of the past, the pope said, unspecified forces today create "stereotypical figures that sum up the characteristics that society perceives as threatening."

October 23, 2014 in Purposes of Punishment and Sentencing, Religion, Scope of Imprisonment, Who Sentences? | Permalink | Comments (7) | TrackBack

Wednesday, October 22, 2014

Graphic representation of female prisoners around the world

20140923_Female_Prisoners_Fo

I just tripped across this interesting piece and infographic published last month via Forbes.  The piece is headlined "Nearly A Third Of All Female Prisoners Worldwide Are Incarcerated In The United States," and here is the text that goes along with the infographic:

According to the International Centre for Prison Studies, nearly a third of all female prisoners worldwide are incarcerated in the United States of America.  There are 201,200 women in US prisons, representing 8.8 percent of the total American prison population.

China comes a very distant second to the United States with 84,600 female prisoners in total or 5.1% of the overall Chinese prison population.  Russia is in third position -- 59,000 of its prisoners are women and this comes to 7.8 percent of the total.

Across the world, 625,000 women and children are being held in penal institutions with the female prison population growing on all five continents.

October 22, 2014 in Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, Sentencing around the world | Permalink | Comments (2) | TrackBack

Sunday, October 19, 2014

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Friday, October 17, 2014

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

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

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

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

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

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

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

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

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

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

Tuesday, October 14, 2014

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

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

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

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

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

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

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

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

Friday, October 10, 2014

Oklahoma has impressive early success with revised earned credit program

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, October 08, 2014

Distinctive religious perspective on the drug war for the season

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

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

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

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

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

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

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

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

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

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

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

Tuesday, October 07, 2014

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

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

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

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

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

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

Monday, October 06, 2014

Reviewing California's debate over lowering sentences through Prop 47

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior related posts:

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

Friday, October 03, 2014

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A few recent and older related prior posts:

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