Friday, May 27, 2016
"The Story of Federal Probation"
The title of the post is the title of this notable new paper authored by Brent Newton now available via SSRN. Here is the abstract:
Critics of the modern federal sentencing system regularly assert that the sentencing guidelines promulgated by the United States Sentencing Commission (“the Commission”), pursuant to the Sentencing Reform Act of 1984 (“SRA”), have resulted in unnecessarily harsh prison sentences and overcrowded federal prisons. As a central part of their critique, they specifically claim that the Commission’s policy choices, as reflected in the guidelines, have been responsible for the steep decline in the rate of federal probationary sentences (and other non-incarceration sentences, such as a fine only) imposed during the past three decades. That rate has fallen from around half of all federal sentences in the decades before the guidelines went into effect in late 1987, to slightly less than a quarter of federal sentences shortly after the guidelines were first implemented nationwide in the early 1990s, and to one in ten federal sentences today.
This Article assesses those critics’ claims about federal probation sentences and, in the process, tells the story of federal probation — beginning with a short history of federal probation from its creation in 1925, leading up to when the SRA created the Commission, and continuing through the ensuing three decades to the present time. This Article discusses how the original Commission followed Congress’s directive to increase the overall rate of federal prison sentences (and thus reduce the rate of probation), but also analyzes how several factors unrelated to the guidelines are as much — or even more — responsible for the substantial decrease in the rate of federal probationary sentences since the guidelines went into effect on November 1, 1987.
In particular, the current low rate of federal probationary sentences is in large part explained by: (1) significant changes in the types of federal offenses prosecuted during the past three decades (with two-thirds of federal cases today involving substantial drug-trafficking offenses, firearms offenses, or immigration offenses, which typically do not involve realistic candidates for probation); (2) a significant increase in the average federal defendant’s criminal history during the past three decades; (3) the enactment of several federal penal statutes either requiring a mandatory minimum term of imprisonment or otherwise prohibiting probation as a sentence; (4) the implementation of the Bail Reform Act of 1984, which today results in the pre-sentencing detention of three-quarters of federal offenders (and creates a strong incentive for detained defendants not to ask for probation); and (5) a significant increase in the percentage of non-citizen offenders in the federal criminal justice system (who are not eligible for probation as a practical matter).
May 27, 2016 in Booker in district courts, Criminal Sentences Alternatives, Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (1)
Wednesday, May 25, 2016
DOJ Inspector General report details (impressively?) rare cases of untimely release of federal prisoners
This New York Times article about a new DOJ report carries a headline that at first led me to wonder what is heck is going on with the federal Bureau of Prisons: "Thousands Held in Federal Prisons for Too Long, Report Finds." But then, upon reading quickly the executive summary of the DOJ Inspector General's report reference in the headline, I am actually impressed with how well BOP seems to be doing a key part of its job. This full DOJ Report is titled "Review of the Federal Bureau of Prisons’ Untimely Releases of Inmates," and here is its first two paragraphs:
Following news reports that the Federal Bureau of Prisons (BOP) had confined an inmate for 13 months past his correct release date, the Department of Justice (Department) Office of the Inspector General (OIG) initiated an examination of the BOP’s process for ensuring federal inmates are released on their correct release dates and the incidences of releases before or after the correct release date due to staff error between 2009 and 2014. We found that of the 461,966 inmate releases between 2009 and 2014, the BOP categorized 157 as untimely due to staff error. We also learned that the BOP classifies a far greater number — 4,183 — as untimely for other reasons.
According to the BOP, the vast majority of non-staff error “untimely” releases were due to situations that are beyond its control, such as amended sentences that result in shorter sentences than the time an inmate had already served. Also, data and information we reviewed indicates that other entities inside and outside the Department may sometimes contribute to untimely releases. Although BOP officials told us that it was highly unlikely that staff error on the part of a Department entity contributed to any of the 4,183 cases, they could not rule out the possibility and we found that the BOP does not always have complete information about the circumstances of untimely releases to which other entities contribute. We therefore concluded that the Department should work with all relevant entities, both within and outside the Department, to review the full range of possible reasons for untimely releases and how to address those that are in any way preventable.
While I know lots of folks have lots of sound reasons to criticize BOP, I have a very hard time knocking the agency too much for staff efforts which impacted only roughly 1 out of every 3000 releases. Of course, as the DOJ report explains, every reasonable effort should be made to avoid BOP staff errors leading to untimely releases. But I think we should general celevrate any government agency with a 99.93% accuracy rate in one of its core responsibilities.
Friday, May 20, 2016
Suggesting we suffer from "under-incarceration," Senator Cotton calls federal sentencing reform "dead in this year’s Congress"
As reported in this Politico article, headlined "Sen. Tom Cotton: U.S. has 'under-incarceration problem'," at least one significant opponent of federal sentencing reform is already claiming victory in his efforts to preclude any legislative changes this year to any severe federal statutory mandatory minimums. Here are the basics via Politico:
Sen. Tom Cotton on Thursday slammed his colleagues' efforts to pass sweeping criminal justice reforms, saying the United States is actually suffering from an "under-incarceration problem."
Cotton, who has been an outspoken critic of the bill in Congress that would reduce mandatory minimum sentences, smacked down what he called "baseless" arguments that there are too many offenders locked up for relatively small crimes, that incarceration is too costly, or that "we should show more empathy toward those caught up in the criminal-justice system."
"Take a look at the facts. First, the claim that too many criminals are being jailed, that there is over-incarceration, ignores an unfortunate fact: for the vast majority of crimes, a perpetrator is never identified or arrested, let alone prosecuted, convicted, and jailed," Cotton said during a speech at The Hudson Institute, according to his prepared remarks. "Law enforcement is able to arrest or identify a likely perpetrator for only 19 percent of property crimes and 47 percent of violent crimes. If anything, we have an under-incarceration problem."
Expanding upon his remarks during a question-and-answer session, Cotton said releasing felons under reduced sentences serves only to destabilize the communities in which they are released. “I saw this in Baghdad. We’ve seen it again in Afghanistan," recalled Cotton, who served in the Army during both wars. "Security has to come first, whether you’re in a war zone or whether you’re in the United States of America.” Those advocating for criminal justice reform through such measures appear to have forgotten the high-crime days of the 1980s, Cotton remarked, noting that the federal prison population is declining....
"I believe the criminal-leniency bill in the Senate is dead in this year’s Congress. And it should remain so if future versions allow for the release of violent felons from prison," he went on to say. "I will, though, happily work with my colleagues on true criminal-justice reform — to ensure prisons aren’t anarchic jungles that endanger both inmates and corrections officers, to promote rehabilitation and reintegration for those who seek it, and to stop the over-criminalization of private conduct under federal law. But I will continue to oppose any effort to give leniency to dangerous felons who prey on our communities."
Based on these comments from Senator Cotton (which can be read/seen via this link), I am now growing ever more inclined to agree with Senator Cotton's suggestion that a significant sentencing reform bill will not get through Congress before the 2016 election. Despite efforts to tweak the SRCA to appease some conservative critics, the most vocal opponents of the bill, Senators Cotton and Session, remain vocal in their opposition. In addition, as reported here, Senator Marco Rubio has recently expressed opposition to the SRCA. Perhaps most critically, I have yet to see anyone make a truly forceful political argument that any of the most critical current GOP leaders (namely Donald Trump, Mitch McConnell or Paul Ryan) ought to see great political benefits from now starting to aggressively champion federal statutory sentencing reform efforts.
That all said, I think some of the political calculations here remain fluid. It seems to me possible (though not likely) that the White House and/or leading Democrats might relent on opposition to mens rea reform, which could perhaps jump-start the stalled reform bills in the House of Representatives. Or maybe the even unpredictable Donald Trump will see some poll numbers suggesting he could improve his image with younger and minority voters by claiming he is better than the Clintons on criminal justice reform. And, not to be completely overlooked, it seems to me quite possible that lots of folks uncertain about the current national political mood on crime and punishment would feel comfortable moving forward on reforms during the lame duck period after the Nov 2016 elections.
All those speculations aside, I view Senator Cotton's latest comments as still further confirmation of my own long-standing fear that it continues to be much easier for all sorts of federal political actors to talk a lot about sentencing reform than to actually convert all the sentencing buzzing into actual federal statutory reforms.
A few 2016 related posts:
- Senator Tom Cotton forcefully (and somewhat thoughtfully) makes his case against the current version of SRCA 2015
- GOP empire striking back against federal sentencing reform efforts in Congress
- Mark Holden, GC at Koch Industries, makes "The Factual Case for Criminal Justice Reform"
- Former AG Mukasey delivers "clear" message to GOP on SRCA: "Law enforcement asks you to pass this bill."
- Is the Supreme Court fight already starting to "doom" federal statutory sentencing reform?
- Notable new comments and commitments on criminal justice reform from GOP House Speaker Paul Ryan
- Quick (inside-the-Beltway) reflections on the latest odds of those inside-the-Beltway getting federal sentencing reform done in 2016
- The latest news about the faltering state of federal statutory sentencing reform
- "Senators Announce New Provisions & Cosponsors to Bipartisan Sentencing Reform and Corrections Act"
- Senator Jeff Sessions (and thus Donald Trump?) comes out swinging against revised SRCA
- An effective accounting of why "Sentencing Reform is Seriously Stuck"
Thursday, May 19, 2016
Notable new BJS report on "Aging of the State Prison Population, 1993–2013"
As detailed in this official press release, the Bureau of Justice Statistics has just released this interesting new report with lots of data about the sentencing and incarceration of older offenders. Here are the statistical basics from the press release:
Prisoners age 55 or older sentenced to more than one year in state prison increased from 26,300 in 1993 to 131,500 in 2013, the Bureau of Justice Statistics (BJS) announced today. This represented a growth from 3 percent to 10 percent of the total state prison population during this period. From 1993 to 2013, the median age of state prisoners increased from 30 to 36 years.
Two main factors contributed to the aging of state prisoners between 1993 and 2013: a greater proportion of older prisoners were serving longer sentences, predominantly for violent offenses, and the number of admissions of older persons increased. Both the admission rate and year-end imprisonment rate for state prisoners age 55 or older increased from 1993 to 2013, which indicates that the aging U.S. resident population was not solely responsible for the growth in older offenders in prison.
The imprisonment rate for prisoners age 55 or older sentenced to more than one year in state prison increased from 49 per 100,000 U.S. residents of the same age in 1993 to 154 per 100,000 in 2013. Forty percent of state prisoners who were age 55 or older on December 31, 2013, had been admitted to prison when they were at least age 55, and 60 percent turned age 55 while serving time in prison. Additionally, 40 percent of state prisoners age 55 or older on December 31, 2013, had been imprisoned for at least 10 years, compared to 9 percent in 1993.
Admission to prison of people age 55 or older increased 82 percent between 2003 and 2013. People age 55 or older accounted for 1 percent of state prison admissions in 1993, 2 percent in 2003 and 4 percent in 2013.
In 2013, two-thirds (66 percent) of state prisoners age 55 or older were serving time for a violent offense, compared to a maximum of 58 percent of other age groups. In 2013, nearly half (48 percent) of state prisoners age 55 or older were serving sentences for murder or non-negligent manslaughter or sexual assault, compared to nearly a third (31 percent) of prisoners ages 45 to 54 and more than a quarter (27 percent) of those ages 35 to 44. In 2013, 30 percent of state prisoners age 55 or older were imprisoned for sexual assault, which was more than double the percentage of prisoners age 44 or younger.
The mean sentence length for prisoners age 55 or older admitted on new court commitments was consistently higher than other age groups. Their mean sentence length was 82 months in 2013. In comparison, prisoners ages 18 to 39 had a mean sentence length of 69 months, and the mean sentence length for new inmates ages 40 to 54 was 71 months.
Prisoners age 55 or older convicted of new violent crimes received longer sentences and were expected to serve a higher proportion of their sentences than younger offenders. Prisoners admitted in 2013 when they were age 55 or older could expect to serve an average of 182 months (15 years) for new violent offenses, compared to 116 months (10 years) for those admitted at ages 40 to 54 and 55 months (almost 5 years) for those ages 18 to 39.
"Criminal Justice: The Real Reasons for Reform"
The title of this post is the headline of this effective new National Review commentary authored by Vikrant Reddy, a senior research fellow at the Charles Koch Institute. The piece's subheadline highlights its themes: "There’s no reason to exaggerate the need for it; the true state of affairs is bad enough." And here is how the piece starts and ends:
For all public-policy ideas, there are good arguments and there are bad arguments. The bad arguments sometimes carry flash and sizzle, but they should be resisted. Criminal-justice reform — an issue many prominent conservatives have begun to champion — is particularly rife with bad arguments, but that is no reason to ignore the good ones. In a recent piece in RealClearPolicy, the conservative writer Sean Kennedy expertly filleted some of the worst arguments made by overzealous criminal-justice reformers on both the left and the right. But his takedown was not an argument against thoughtful reform efforts that have improved public safety, saved taxpayer dollars, and advanced individual dignity....
The broadly accepted view among criminologists is that incarceration does bring down crime rates, but it is a tool with diminishing marginal returns. At a certain point, if the goal is to decrease crime, each additional tax dollar is better spent on law enforcement and prevention. Indeed, there is even a point at which incarceration becomes criminogenic, causing more crime than it stops. This happens because, as noted above, some petty criminals spend lengthy stints in prison and emerge with limited reentry options and having learned more bad habits.
The upshot of all of this is simple. First, whether or not America has the world’s highest incarceration rate, it certainly has a rate vastly higher than that of any comparable Western democracy. Second, a slight majority of the prison population consists of violent offenders, but this is hardly an argument for ignoring criminal-justice reforms that would (1) reduce the number of non-violent offenders behind bars and (2) better direct resources at preventing violent crime. Finally, reformers should not forget that our high rates of incarceration, in certain ways, make society less safe, and public-safety considerations must be central to any discussion of criminal-justice reform.
Those are the good arguments in support of criminal-justice reform — and they remain good arguments even when some are making weak arguments.
Of course, not everyone who gets published in the National Review is advocating for sentencing reforms, as evidence by these other two notable recent pieces to be found there:
"Why Trump Should Oppose ‘Criminal-Justice Reform’" by Jeffrey Anderson
"Criminals are unicorns: And that’s why it is so difficult to stop them" by Kevin Williamson
Notable sentencing elements in Oklahoma bill making any and all abortions a felony subject to mandatory imprisonment of at least one year
As reported in this new Washington Post piece, headlined "Oklahoma legislature passes bill making it a felony to perform abortions," legislators in the Sooner State have now sent to the Governor a piece of legislation designed to test the enduring constitutional viability of Roe v. Wade sooner rather than later. Here are the basics (with the sentencing portion that caught my eye highlighted):
Lawmakers in Oklahoma approved a bill Thursday that would make it a felony for anyone to perform an abortion and revoke the medical licenses of any physician who assists in such a procedure. This sweeping measure, which opponents have described as unconstitutional and unprecedented, was sent to Gov. Mary Fallin (R) for her signature.
Fallin has five days to decide whether to sign the bill, and her office did not immediately respond to a request Thursday about her plans. The Oklahoma bill is the first such measure of its kind, according to the Center for Reproductive Rights, which says that other states seeking to ban abortion have simply banned the procedure rather than attaching penalties like this.
According to the bill, anyone who performs or induces an abortion will be guilty of a felony and punished with between one and three years in the state penitentiary. The bill also says that any physician who participates in an abortion will be “prohibited from obtaining or renewing a license to practice medicine in this state.”
The bill passed the Oklahoma House of Representatives with a vote of 59-to-9 last month. On Thursday, the state’s senate passed it with a vote of 33-to-12. State Sen. Nathan Dahm, a Republican who represents Tulsa County, told the Associated Press he hopes the Oklahoma measure could eventually lead to the overturning of Roe v. Wade, the landmark 1973 Supreme Court decision that recognized a woman’s right to an abortion.
The Oklahoma State Medical Association, which has called the measure “troubling,” said it would not take a position on the legality of abortion. However, the group said that it would “oppose legislation that is designed to intimidate physicians or override their medical judgment.”
Ever the sentencing nerd, I found it interesting and notable that Oklahoma would seek to outlaw abortion and make it a felony offense, but then attach to it a mandatory minimum prison sentence of only one year and a mandatory prison maximum of three years. After a little digging, I found the full text of the passed Oklahoma bill going to the Gov here, and I discovered these intriguing criminalization/sentencing terms used to apply only to a prohibition on abortions being performed by anyone other than a licensed physician. But the new bill, as shown below, deletes the language that allows licensed physicians to be excluded from this criminal prohibition:
SECTION 3. AMENDATORY 63 O.S. 2011, Section 1-731, is amended to read as follows:
Section 1-731. No person shall perform or induce an abortion upon a pregnant woman unless that person is a physician licensed to practice medicine in the State of Oklahoma. Any person violating this section shall be guilty of a felony punishable by imprisonment for not less than one (1) year nor more than three (3) years in the State Penitentiary.
Prior (arguably) related post:
- GOP frontrunner Donald Trump says "some form of punishment" would be needed for women who have abortions if procedure is made illegal
Major sentencing reform becomes reality in Maryland
One of the nicknames for Maryland (which happens to be the state where I grew up) is the "Free State." And today, as reported in this new Baltimore Sun article, the state has now enacted criminal justice reforms that help justify the continued appropriateness of this nickname. Here are the details:
Maryland officials are about to take steps to reduce the state prison population by more than 1,000 inmates while plowing millions of dollars into crime prevention.
Gov. Larry Hogan on Thursday signed the state's broadest criminal justice legislation in decades — a package that will reduce sentencing guidelines for drug dealers, thieves and other offenders, while increasing the number of crimes that can be wiped from an offender's record fivefold. Users of illegal drugs will be steered toward treatment, not incarceration. And new rules will help the state go after criminal gangs.
The Justice Reinvestment Act, a document of more than 100 pages, is a seismic shift from policies adopted during the late-20th century war on drugs, which critics say led to governments wasting money on incarceration that did little to increase public safety. By reducing the Maryland prison population by about 1,100 people over the next 10 years, officials expect to save an estimated $80 million that can be redirected toward programs intended to prevent crime.
The bill was a compromise reached among Republicans and Democrats, prosecutors and defenders, civil libertarians and victims' rights advocates. Hogan said the bill "represents the largest and most comprehensive criminal justice reform to pass in Maryland in a generation."
But some officials and advocates say Hogan's approval, which came as he signed 144 bills in the final such ceremony this year, should begin an evaluation process. Some say doing away with mandatory minimum sentences was a mistake, as was reducing sentences for some drug offenses. Others bemoan the increased penalty for second-degree murder, and say not enough other penalties have been reduced. Most of the bill's provisions go into effect in October 2017. Some will become law this October....
Supporters say the legislation helps only nonviolent offenders. Del. Herb McMillan, an Anne Arundel County Republican, disagrees. "Pushing heroin and other opioids isn't nonviolent," McMillan told the House during debate last monh. "Reducing jail time for heroin pushers, during an opioid epidemic, does not send the message heroin pushers need to hear."
Maryland is the 30th state to pursue Justice Reinvestment, a concept pushed by Senate President Thomas V. Mike Miller and Del. Kathleen Dumais, both Democrats. pushed after learning about it at legislative conferences. In 2015, the two sponsored successful legislation that created a council to recommend sweeping changes to lawmakers. From those recommendations, the Senate and House of Delegates crafted significantly different bills. The Senate's version was friendlier toward prosecutors. It took a marathon negotiation session two days before the end of the session to reconcile the bills.
The House backed off some of its proposed sentence reductions. The Senate agreed, reluctantly, to the repeal of mandatory minimums.
Sen. Robert A. Zirkin, who as chairman of the Senate Judicial Proceedings Committee led that chamber's work on the legislation, called its passage one of the best moments of his 18 years in the legislature. "There's never been a bill that I can recall of that magnitude, and it was a completely bipartisan, roll-up-your-sleeves and get-to-work effort," the Baltimore County Democrat said. He pointed to his close collaboration with Sen. Michael Hough, a Frederick County Republican.
Zirkin said one of the most important provisions specifies that treatment, rather than incarceration, should be the sentence for a person convicted of possessing drugs such as heroin or cocaine. "That's a more effective way to get that individual out of the criminal realm and back to being a law-abiding, tax-paying citizen," Zirkin said.
Zirkin said the bill also includes "the single largest expansion of expungement, possibly in this state's history." He said it expands the list of offenses that may be erased from public records from nine to about 50. They include misdemeanors related to theft and drug possession. The change is intended to make it easier for ex-offenders to qualify for jobs, housing and education....
Baltimore County State's Attorney Scott Shellenberger, who represented the state's prosecutors through the process, said he had to swallow hard to accept reductions to mandatory minimum sentences. He said such minimums were an effective tool in striking plea bargains.
Still, Shellenberger said, the legislation moves in the right direction. He said prosecutors have sought the increase in the maximum sentence for second-degree murder to 40 years for years. And he's pleased that lawmakers included Hogan's proposal to adopt a state version of the federal Racketeer-Influenced and Corrupt Organizations (RICO) bill to go after criminal gangs.
Paul DeWolfe, Maryland's chief public defender, served on the council that made recommendations. He said he hopes lawmakers continue to build on the reinvestment process in the coming years. An oversight commission created by the bill will make recommendations for further reforms. "I do see this as a first step, and I hope that most members of the commission and the legislature think that way as well," he said.
Shellenberger, a Democrat known for his tough approach to crime, said he hopes the oversight panel will take it slow and let the state absorb the many changes in the bill over several years. "This is such a large change to the criminal justice system that I think we need to take a break and see what savings [result] and what happens as a result of this change," he said.
Wednesday, May 18, 2016
New CBO report indicates federal statutory sentencing reform would save many, many millions
This new Reuters article, headlined "Congress forecasters see major savings from sentencing reforms," reports on this new report from the Congressional Budget Office providing a "Cost Estimate" on S. 2123, the proposed Sentencing Reform and Corrections Act. Here are the basics via the Reuters report:
A criminal justice bill awaiting a vote by the U.S. Senate would reduce federal prison costs by $722 million over the next 10 years by releasing thousands of federal prisoners early, congressional forecasters said on Wednesday.
Federal benefits received by the newly released prisoners would increase direct spending by $251 million and reduce revenues by $8 million over the same period, according to the estimate by the U.S. Congressional Budget Office.
The new savings estimate buoyed supporters of the bipartisan measure to lower mandatory minimum sentences for some non-violent federal drug offenders, which is central to President Barack Obama's efforts to overhaul the country's federal criminal justice system and reduce prison overcrowding.
"We have an obligation to change the way we think about incarceration, and today’s CBO report shows that we have a fiscal obligation as well," said the bill's co-authors, U.S. senators Charles Grassley, a Republican from Iowa, and Richard Durbin, a Democrat from Illinois, in a statement.
The bill was revised last month to exclude prisoners convicted of violent crimes in an effort to garner more support among conservatives.
Friday, May 13, 2016
"Was 1960'S Liberalism the Cause of Today's Overincarceration Crisis?"
The title of this post is the headline of this notable book review by Lauren-Brooke Eisen of the Brennan Center for Justice of this notable new book by Elizabeth Hinton "From the War on Poverty to the War on Crime: The Making of Mass Incarceration in America." Here is how the review starts and concludes:
The statistics are stunning. This very second, more than 2.2 million people sit behind bars in America. To put this into perspective, the United States is home to the largest prison system on the planet. But corrections today encompasses more than just metal bars. An estimated 6,851,000 people are under some sort of correctional supervision, such as probation or electronic monitoring. If you do the math, it’s about one in 36 adults. The racial disparities are striking: according to the Sentencing Project, one in every 10 African-American men in his thirties is in prison or jail on any given day.
Elizabeth Hinton, professor of history and African American studies at Harvard University, examines how mass incarceration happened in America in her new book, appropriately titled From the War on Poverty to the War on Crime: The Making of Mass Incarceration in America. Hinton’s approach is novel. Most criminal justice experts cite President Ronald Reagan’s War on Crime as the driver for today’s current levels of incarceration. Hinton argues that President Lyndon Johnson’s Great Society policies — which aimed at improving conditions for the most impoverished Americans — laid the foundation for mass incarceration and its attendant racial injustices. Reagan’s policies, she says, were merely “the fulfillment of federal crime control priorities that stemmed initially from one of the most idealistic enterprises in American history during the era of civil rights.”
This may be a surprising claim, but it is not a unique one: there are a growing number of academics today who are blaming liberals for creating mass incarceration and for the sizable racial disparities that exist in the justice system. Naomi Murakawa, political scientist and associate professor of African American studies at Princeton, made this argument in her recent book The First Civil Right: How Liberals Built Prison America. Murakawa points to federal legislation written by liberals to reduce discretion in sentencing and parole. The liberals’ goal was to avoid racially disparate punishment — judges, they argued, generally used their discretion in ways that hurt racial minorities. Time has shown, however, that reducing judicial discretion only resulted in more racial disparities, as African-Americans ended up spending more time in prison as a result.
University of Pennsylvania professor of political science Marie Gottschalk, made a similar case in her 2015 book Caught: The Prison State and the Lockdown of American Politics. Gottshalk contends that African-American advocacy groups have not always led the way in criminal justice reform and have in fact, at various points in history, supported measures that created more punitive criminal justice policies that have harmed African-Americans. She notes that the majority of the Congressional Black Caucus supported the Anti-Drug Abuse Act of 1986, a law that notoriously, and controversially, punished crack cocaine use (a crime African-Americans are more likely to be convicted of) 100 times more harshly than powder cocaine use (which skews more white).
Building on this theme, Hinton’s well-researched book is filled with historical anecdotes painting a colorful picture of the nation’s persistent struggle with crime since President Johnson coined the phrase “War on Crime” more than fifty years ago. A year before President Johnson declared this war, Congress passed his Economic Opportunity Act of 1964, which Hinton calls “the most ambitious social welfare program in the history of the United States." The Economic Opportunity Act, which invested almost $1 billion in fighting poverty, would prove to be one of the most important parts of President Johnson’s War on Poverty, and his larger Great Society initiative, in which billions of dollars were spent on dozens of antipoverty programs. Hinton, however, criticizes President Johnson for not spending more money on job creation measures and revamping public schools in poor, urban areas. What came next, in her opinion, set the stage for decades of punitive measures that ultimately resulted in today’s phenomenon of mass incarceration....
From the War on Poverty to the War on Crime is smart, engaging, and well-argued. Its one flaw, however, is that it does not adequately recognize that many of the policies it criticizes, with 50 years of hindsight, were well-intentioned at the time – and, their implications for criminal justice aside, did a great deal of good. It is not until the very end of the book — pages 335 and 340 to be exact — that Hinton throws some morsels of recognition their way, conceding that these policies may have been “a product of their time” and that there are “questions of intent”. But the concession is a grudging one — Hinton writes that these questions of intent “are only relevant to a certain extent” as the real issue is to “uncover the series of decisions that made contemporary mass incarceration possible.”
The last 50 years have brought valuable research about crime, evidence-based programs, and how to improve the lives many Americans through education, community support, and mental health and drug treatment services. To give short shrift to the well-meaning efforts of so many of the nation’s academics, researchers, and policymakers is an unfortunate blind spot in an otherwise well-researched and provocative analysis of the causes of our mass incarceration crisis.
Tuesday, May 10, 2016
New study suggests California's prison population reduction via realignment has been generally successful
This new entry at The Crime Report, headlined "California's Prison Downsizing Offers a Model for Other States, Study Says," reports on notable new research suggesting that crime has not increased dramatically after California was force in the wake of the Plata ruling to reduce its prison population. Here is the start of the entry describing the research:
The success of California's Public Safety Realignment Act in reducing state prison populations without a corresponding increase in crime suggests that other jurisdictions around the country can enact similar reforms without endangering public safety, according to a study published in the latest issue of Criminology & Public Policy, an American Society of Criminology journal.
The study, entitled “Is Downsizing Prisons Dangerous? The Effect of California’s Realignment Act on Public Safety” [available here], cites already published data showing that the 17 percent reduction in the size of California’s prison population over a 15-month period, beginning with the Act's implementation in 2011, did not have an effect on aggregate rates of violent crime or property crime.
"Moreover, 3 years after the passage of Realignment, California crime rates remain at levels comparable to what we would predict if the prison population had remained at 2010 levels," write authors Jody Sundt of Indiana University, Emily J. Salisbury of University of Nevada, Las Vegas, and Mark G. Harmon of Portland State University.
The California results demonstrate that "we make a mistake...when we assume that prisons are the only meaningful or viable response to crime,” the authors add.
According to the data referenced in the study, the California Realignment Act reduced the size of the state’s prison population by 27, 527 inmates within 15 months. Many of the inmates were transferred to local jails or released into the community. Critics of the Act linked the policy to recorded increases in offenses such as auto theft. But the authors argued that the slight uptick in such offenses leveled off over time--and was not necessarily linked to realignment.
These results should serve as an object lesson for other jurisdictions, said the authors. "For the first time in decades it appears that a 'window of opportunity' for justice reform is opening to allow for a reevaluation of the effectiveness and wisdom of policies that have created the largest prison population in the world," they wrote, citing a phrase used by criminologist Michael Tonry.
Saturday, May 07, 2016
Drug war and tough-on-crime legislation (and even more judicial discretion) keeping Ohio's prison population growing
My own Columbus Disptach has this article about Ohio's continued struggles to keep its prison population under control. The piece is headlined "Ohio prison population could hit record high this summer," and here are excerpts:
Ohio's prison population is rising, threatening to set a new record as soon as July, despite repeated efforts to divert inmates from state lockups. The number of inmates in Ohio prisons increased 15.1 percent from 2005 to 2016, according to a report released today by the Correctional Institution Inspection Committee, a legislative prison watchdog agency. At the same time, prison overcrowding hit 132.1 percent, up from 114.8.
This is happening at a time when the overall crime rate in Ohio has gone down roughly 15 percent. Gary Mohr, director of the Department of Rehabilitation and Correction, sounded the alarm at statewide opiates conference earlier this week. "I think it’s a pretty safe bet that by July 1 of this year we will set an all-time historic record of incarcerated Ohioans.”
The population stood at 50,899 on May 2; the all-time record is 51,273, set in Nov. 2008. “The day I started in this business, there were 291 women Ohio women locked up in the prison system in Ohio." Mohr said. "Today we’re at 4,300.”...
Mohr has said repeatedly he will not build another prison during his time as prisons director, which could end when Gov. John Kasich leaves office at the end of 2018. State officials have been vigorously trying for a decade to reduce the prison population, largely by diverting non-violent inmates to community-based correction and substance abuse treatment programs.
But the CIIC report points out those efforts have been undercut by new "tough on crime" laws, many of them dealing with sex offenders, passed by the General Assembly, as well as a 2006 Ohio Supreme Court ruling that relaxed requirements for judges to state specific reasons for meting out maximum sentences. As a result, the number of inmates sentenced to the maximum term increased dramatically, requiring an extra 6,700 prison beds.
Drug offenses make up 27 percent of all crimes, the largest single category, followed by crimes against person (24.7 percent), property offenses (12.6 percent), burglary (11.2 percent), and sex offenses (7.5 percent). While men still far outnumber women behind bars, women are coming to prison at a much faster rate, mostly for non-violent drug and property crimes, the report showed.
The (reader-friendly) report that provides the data for this new story can be accessed at this link.
Thursday, May 05, 2016
"Congress Should Follow the Red States’ Lead on Criminal-Justice Reform"
The title of this post is the headline of this notable National Review commentary authored by prominent conservatives Adam Brandon, Timothy Head, Marc Levin and Grover Norquist. Here are excerpts:
Nearly ten years ago, in 2007, Texas faced $527 million in immediate prison-construction costs, and $2 billion in additional costs by 2012. Even for a large and wealthy state, the sticker shock was staggering. Texas had seen its prison population rise dramatically. Between 1990 and 2010, the number of inmates jumped from around 50,000 to more than 155,000 — incarcerating so many inmates began to crowd out other vital areas of the budget.
Texas House Corrections Committee chairman Jerry Madden approached House speaker Tom Craddick and asked what he should do to address the rising costs. “Don’t build new prisons,” Craddick said. “They cost too much.” Madden, a Republican, got to work and, along with his colleagues from both sides of the aisle, devised a plan to tackle the state’s growing prison population. With an investment of $241 million, lawmakers created drug courts to divert low-level, nonviolent offenders into treatment programs as an alternative to incarceration and funded rehabilitation programs to reduce prisoners’ risk of recidivism when they reentered society.
The results of the Texas model are difficult to ignore: The state’s prison population declined by 14 percent and, even more importantly, crime rates dropped by 29 percent. One might argue that crime rates were dropping all over the country at the time — which is true — but if one were to listen to those in rabid opposition to justice reform, wouldn’t the reverse have happened? Instead, Texas now has its lowest crime rate since 1968 and recidivism is 9 percent less than before Texas’s 2007 reforms.
The results were so encouraging that other states sought to replicate Texas’s success. Most of the states that have moved on substantive justice reform are traditionally conservative ones. More than two dozen states — including Georgia, Mississippi, and South Carolina — have passed justice-reform packages.
Interestingly, it wasn’t until multiple Republican-controlled states moved on the issue that traditionally blue states felt that they could: They all waited for red states to move first. Hawaii, Oregon, and Rhode Island, three of the most progressive states in the country, followed the lead of conservative states. Since then, even more red states — including Alabama, Oklahoma, and Utah — have passed justice reform. Red states, and Texas in particular, provided a blueprint for other states to follow while Barack Obama was still the junior senator from Illinois....
Now is the time to bring these conservative reforms to the federal level. The federal prison population grew by nearly 800 percent between 1980 and 2013, and the Bureau of Prisons’ budget increased by almost 600 percent, from $970 million to $6.7 billion. Opponents of justice reform point to the high recidivism rate of federal prisoners as one of the reasons Congress shouldn’t act, but this is exactly why we, like so many conservative states, should act to get smarter on crime.
Moreover, there is also another angle that congressional Republicans may not have considered: There are no guarantees this fall. Conservatives could be facing four or eight more years of a Democrat in the White House, Democratic control of the Senate, and, quite possibly, the House could swing back to left-wing control. While there is more bipartisanship on criminal justice than any other issue, conservatives understand we cannot reduce the prison population without also strengthening alternatives like probation and drug courts. So, for example, there should be swift and certain sanctions — such as a weekend in jail — when someone blows off their probation officer. Some on the far left simply don’t recognize the “stick” part of the carrot-and-stick approach and want to divert savings on prisons to welfare programs rather than following Texas’s proven record by reinvesting the savings in supervision strategies that can help continue crime declines.
It’s time for congressional conservatives to reclaim the narrative that’s rightfully theirs. Justice reform is our issue. They would never admit it, but Democrats are following conservatives’ lead.
Tuesday, May 03, 2016
An (unhelpful?) exploration of how a troubled young man gets 50 years in Mississippi prison for first felony convictions
The Clarion-Ledger is starting a series of articles titled "Blinded Justice" that will "examine how justice and punishment are dispensed across Mississippi in wildly varying ways." This first piece, headlined "50 years for first-time felon? Tyler Moore's story," tells an interesting tale of a troubled youngster seemingly getting slammed on felony burglary charges because local prosecutors seemingly got tired of his many (misdemeanor-level?) crimes. But the article does not really explore just why prosecutors ultimately were so eager to throw the book at this particular offender. Here are excerpts from the lengthy piece which, for me, raises more state sentencing questions than answers:
Tyler Moore is serving 50 years in prison. It was the first felony conviction for the 24-year-old man, struggling to beat a drug addiction and his bipolar disorder. According to the Mississippi Department of Corrections, his tentative release date is 2061. “I’ll be dead and gone by then,” said his mother, Lisa. So how does a first-time offender who pleaded guilty to burglary get 50 years in prison? This is his story....
[In] 2010 ..., [after a charge of] misdemeanor possession of marijuana paraphernalia, Brandon police knocked on the door one morning about 5 and took him to jail on a hit-and-run charge. The charge against him arose from a party where a young man claimed Moore had run his car into him. Moore denied the claim, saying the young man jumped on his hood.
On April 1, 2011, the judge reduced the charge to leaving the scene of an accident, and Moore was fined. While walking out of the courtroom that day, he muttered to someone, “You lying sack of s---.” The judge sentenced him to 10 days in jail.
The misdemeanors kept coming — contributing to the delinquency of a minor and then shoplifting when he walked out of Belk’s with a pair of sunglasses. Moore apologized to the judge and admitted he had a drug problem. He spent two days in jail, and the judge ordered drug tests for the next six months.
In August 2011, Moore’s family opted for a change in scenery, moving to Branson, Missouri.... He passed all the court-ordered drug tests. What his family didn’t know was his drug addiction now included spice, which couldn’t be detected by the tests....
As months passed, Moore grew homesick, and an old girlfriend wanted to see him. He made it back to Mississippi before Christmas. “I return and have like no money, so what do I do?” he wrote in a sworn statement. “I decide to steal out of some cars to get some money.” In a Reservoir neighborhood, he went from car to car, stealing University of Alabama floor mats, an iPod, a University of Florida gator decal and other items.
On Feb. 2, 2012, the Rankin County Sheriff’s Department arrested him and charged him with breaking into six cars.... After two weeks in jail, the judge released him on bond with the understanding he would go to a drug rehabilitation center, where he stayed 30 days. He admitted using crack cocaine, marijuana and alcohol.
A day after his release in April 2012, deputies responded to a call, where they questioned Moore about a mother saying he had sex with her 15-year-old girl. They arrested him, and he sat in jail for two weeks on a statutory rape charge. He insisted on his innocence, but he failed his polygraph test. Once again, the judge sent him for 30 days to drug rehab.
After his release, his mother witnessed an improvement. He got a job at a car dealership... [but] when his employer learned of his burglary arrest, he was fired. Devastated, he sank into depression. A psychiatrist diagnosed him with bipolar disorder and prescribed medication. His mother said her son continued to struggle and began hanging out with the wrong crowd....
On a Thursday morning, Jan. 10, 2013, Moore discovered he had 21 missed calls on his cell phone. When he talked with his mother, she told him deputies were looking for him. “They say you’ve been breaking into houses.”... That evening, deputies showed up a second time, jailing his mother, father and 14-year-old brother on accessory after the fact charges after learning he was in Louisiana.
Moore’s grandmother decided to turn him in to the Rankin County jail on Sunday, a day before his court appearance. When they arrived in Brandon, he bolted. Deputies pursued him and caught him in a Reservoir subdivision, charging him with five counts of house burglary. With his family behind bars, he confessed to the burglaries.
In a March 4, 2013, memo, the district attorney’s office gave Moore two options: He could plead guilty to auto and home burglaries and receive 50 years, or he could plead guilty to the burglaries and statutory rape, and receive 30 years. Moore refused to plead guilty to statutory rape.
Ten days later, his new defense lawyer, John Colette of Jackson, proposed to prosecutors an alternative of 25 years in prison, with 25 suspended.... In response to the 50-year offer from prosecutors, Colette told them in a July 26, 2013, email, “Nobody was killed.”
The district attorney’s office didn’t budge. Moore faced a new charge, this time of escape, after his bunkmate tried to pry open a window in the Rankin County jail. Colette spoke with the sheriff and prosecutors, who agreed to dismiss the charge.
On Aug. 5, 2013, Moore pleaded guilty to five counts of auto burglary and one count of house burglary. “I just wanted to tell everyone I hurt I’m sorry, and my family,” he told the judge. “I’m not a bad guy. I’ve made some mistakes and I’m on drugs and I ran with the wrong crowd.”... He confessed, “I don’t understand anything anymore, and I need help.”....
In keeping with the plea bargain, the judge sentenced him to 60 years in prison, suspending 10 of those years, with each sentence running consecutively. Circuit Judge John Emfinger dismissed the other burglary charges and the statutory rape charge. Because authorities recovered nearly all of the items, the judge ordered less than $300 in restitution.
Moore thought his sentences would run concurrently. “It did not seem real,” he wrote, “and to this day, it does not seem real.”... When Moore arrived at the Central Mississippi Correctional Facility, a correctional officer thought the 50 years of time were a mistake and double-checked with Rankin County Circuit Court to make sure the burglary sentences were indeed consecutive, not concurrent....
Moore's new lawyer, veteran defense attorney Tom Fortner, said the 50 years “seems like an awfully harsh sentence for a young person without a prior felony. There are a lot of people convicted for worse crimes who aren’t getting 50 years in prison.” Fortner asked Judge Emfinger to reconsider his client’s case, saying his then-defense lawyer, Colette, failed to make clear to Moore how soon he would be eligible for parole. Moore initially believed he would be eligible for parole as early as 2017, but it turned out he won’t be eligible until at least 2025. His tentative release date is 2061.
I find this case so very interesting and blogworthy because it strikes me as a a kind of Rorschach test for assessing the state and problems with modern sentencing systems. Though the article focuses on the severe sentence Moore got at the end of this story, one could reasonably complain about all the sentencing leniency he received for his considerable prior low-level offending. Similarly, though the article suggests it was peculiar and worrisome the local DA pushed for a 50-year sentence in a plea deal, one could reasonably wonder why a sentencing judge did not seem troubled by imposing this sentence. And while a 50-year prison term seems quite extreme for just a series of (minor?) burglary offenses, one could argue that this case was sentence just right if Moore can work hard to improve himself while incarcerated so as to earn parole after serving only 12 years.
Monday, May 02, 2016
Digging deeply into Virginia's crowded prisons and parole paractices
A local public radio station in Virginia now has available at this link a detailed look as corrections practices in the state. The umbrella title for all the coverage is "Crowded Prisons, Rare Parole: A Five Part Series," and here are the subheadings and introductions for each part of the series:
Part One: Virginia Has Lowest Parole Rate in the Nation: It’s been more than 20 years since Virginia abolished parole, and over that time the prison population has grown to more than 30,000 people. Just over 10% of them committed crimes before the law changed, so they’re still eligible for parole, but few of them are getting out, and the state now spends more than a billion dollars a year on prisons and correctional programs.
Part Two: Secret Proceedings Offer Little Hope of Parole: Virginia abolished parole in 1995, but people who committed crimes before then — more than 3,300 of them — are still eligible, and a board of five people decides who gets out.
Part Three: Why the Parole Board Rarely Paroles: In a survey of 1,000 Virginians, 75% said the prison population is costing too much — nearly $28,000 per inmate per year. Two-thirds thought the correctional system should reinstate parole, allowing early release for those inmates who are unlikely to commit new crimes. Even people who considered themselves conservative supported that idea by a margin of two to one. Still, Republicans in the legislature oppose parole, and the board empowered to release people who were convicted before parole was abolished frees only a few inmates each year.
Part Four: Paring Virginia's Prison Population: Last year, Governor McAuliffe set up a commission to explore the possibility of reinstating parole — a system of early release for prisoners who follow the rules and are unlikely to commit new crimes. After months of hard work, the group decided not to make a recommendation. Republicans in the legislature had already made it clear they would not support parole. Instead, the commission issued a 50-page report on other ways to reduce its prison population.
Conclusion: Five Years in Prison for Pot: Lawmakers who oppose liberalizing Virginia’s marijuana laws claim no one goes to jail for possessing small amounts of the drug, but a second offense or selling pot does put people in prison. With four states now allowing businesses to profit from the sale of marijuana — and taxing those transactions, some Virginians now question the wisdom of spending nearly $28,000 a year to lock people up for using or even selling marijuana.
Would prosecutors be less aggressive if significantly more monies were devoted to indigent criminal defense?
The question in the title of this post is the big question that lingers for me after review of this important New York Times op-ed authored by John Pfaff over the weekend. The piece provides data to back up John's frequent Twitter lament that problems with indigent defense funding do not get enough attention nor play a sufficient role in analyses of problems with modern criminal justice systems. The commentary, headlined "A Mockery of Justice for the Poor," merits a full read and here are a few key excertps:
In the landmark case Gideon v. Wainwright, the Supreme Court held in 1963 that the state or local government had to provide a lawyer to any defendant facing prison time who could not afford his or her own. This was no minor decision. Approximately 80 percent of all state criminal defendants in the United States qualify for a governmentprovided lawyer.
Yet despite this constitutional guarantee, state and county spending on lawyers for the poor amounts to only $2.3 billion — barely 1 percent of the more than $200 billion governments spend annually on criminal justice. Worse, since 1995, real spending on indigent defense has fallen, by 2 percent, even as the number of felony cases has risen by approximately 40 percent.
Not surprisingly, public defense finds itself starved of resources while facing impossible caseloads that mock the idea of justice for the poor. In Fresno, Calif., for instance, public defenders have caseloads that are four times the recommended maximum of around 150. In Minnesota, one public defender followed by a reporter estimated that he had about 12 minutes to devote to each client that day. There is no way these lawyers can manage the cases being thrown at them.
In New Orleans, caseloads are so high that the parish’s public defender office has started to refuse to take cases, including murder cases. Public defender offices in other states, including Florida, Missouri, New York and Pennsylvania, have taken similar steps when caseloads have grown too heavy. To make things worse, 43 states now require indigent defendants to pay at least a portion of their lawyers’ fees, even though these defendants are by definition indisputably poor....
There is, however, a way out of this, one that the presidential candidates of both parties should embrace, one that should have broad bipartisan appeal. And it is an approach that no one is talking about.
The federal government, which now provides just a few million dollars per year to prop up local indigent defense services, could make an annual grant of $4 billion to state and local governments for indigent defense. This is a mere 0.3 percent of the federal government’s approximately $1.2 trillion discretionary budget. This money would triple spending on indigent defense, especially if the grant was tied to preexisting spending by local governments so they couldn’t just cut their own spending one-for-one with the grant.
For Democrats, this plan would target a major cost of poverty and inequality and, because of the correlation between wealth and race, it would tackle at least some of the racial imbalances that permeate the criminal justice system. For Republicans, who worry about state overreach and the government’s ability to oppress its citizens, meaningful public defense ensures that the poor, too, are able to check the state when it is acting in its most powerful capacity.
Funding indigent defense would also help scale back mass incarceration, a goal both parties share. My research has shown that the primary source of prison growth in the 1990s and 2000s has been prosecutors’ filing of felony charges against more and more arrestees, many of whom in the past would have faced misdemeanor charges or no charges at all. Ensuring that prosecutors’ opponents are able to do their jobs competently would dampen prosecutorial aggressiveness.
Tellingly, as public defender caseloads have soared amid shrinking budgets, prosecutor caseloads appear to have held relatively steady, as funding and hiring of prosecutors generally rose over roughly the last 20 years. Public defenders find themselves at an increasing disadvantage, surely contributing to our nation’s inability to really rein in prison population growth. If defendants had well-funded, effective representation, our adversarial system would do what it is intended to do. What we have right now, however, simply is not adversarial: relatively well-funded, well-staffed prosecutor offices square off against public defenders whose caseloads defy imagination.
Funding public defense would ensure that poor people’s constitutional rights are protected, would advance a commitment to justice shared by liberals and conservatives alike, and would help roll back our staggering prison population. It is also feasible, cheap by federal standards, and would have powerful, longlasting effects.
I agree 100% with John's call for much greater funding of public defense — although I would much prefer a federal law that urged states to link criminal defense funding/spending to criminal prosecution funding/spending. I am not keen to have federal taxpayers provide an expensive "justice bailout" for all states disinclined to tax their own citizens to pay for constitutionally-required services for those they seek to (over)prosecute. (Indeed, I fear that at least some states now doing significant sentencing reform because of prison bills coming due might use clever accounting to afford more prison beds for more offenders if they get a massive yearly influx of federal cash to cover defense services.)
But I really question the notion that greater funding of public defense "would dampen prosecutorial aggressiveness" based on what I see in the operation of the federal criminal justice system. Though certainly not perfectly funded, federal public defenders seem to me to be among the best funded (and certainly the most consistently dedicated and capable and knowledgeable and experienced) of all defense phalanxes that I have seen. And yet I have seen precious little evidence that federal prosecutors are less aggressive because they are frequently facing these defense attorneys in federal criminal cases. (And, of course, we the very largest increase in any jurisdiction's prison population and the lengthy of sentences served over the last 30 years has been at the federal level.)
Moreover, in a few cases in which I have served as an expert witness or amicus at sentencing, I have sometimes perceived that certain federal prosecutors get even more aggressive when they realize that a particular defendant has the resources and personnel needed to put up an especially vigorous defense. (Indeed, I expressly warn some defense attorneys when they seek my formal assistance in a low-profile case that they should consider whether my involvement may risk doing more harm than good due to possible prosecutorial reaction to my involvement.) I do not mean to assert that federal prosecutors are distinctly unfair or uniquely aggressive when going after well-defended defendants, but I do mean to question whether it is really likely that prosecutors will be generally less likely to "strike hard blows" if they know the other side has more ability to defend against those blows.
That said, I do think better funding of state criminal defense is likely to better deter (or later identify) prosecutorial misconduct, and it also could and should have salutory effects on other aspects of state criminal justice systems --- e.g., better funded indigent defense services should be better able to focus on parole systems and expungement efforts and other back-end services for indigent defendants, and perhaps they also would bring more needed strategic constitutional litigation to assail particularly troublesome practices in some state systems. But, to wrap up, I think the only sure-fire way to "dampen prosecutorial aggressiveness," other than to reduce the number of prosecutors, is to dramatically reduce the number of crimes on the books and make sure (through mens rea and jury reforms) that prosecutors have a little more fear of losing when they first think about filing felony charges.
Reviewing the type of federal drug case that the SRCA should most impact
This lengthy new NBC news piece, headlined "As Drug Sentencing Debate Rages, 'Ridiculous' Sentences Persist," focuses on one notable federal drug defendant subject to a notable federal drug mandatory minimum that could be impacted by federal statutory sentencing reform. Here are excerpts:
When he was an addict and petty criminal, Leo Guthmiller knew little, and cared less, about the federal government's harsh drug sentencing laws. The worst he'd endured was 90 days at the county lockup in Lincoln, Nebraska.
Then, last April, nearly two years after he'd stopped popping painkillers and smoking methamphetamine, Guthmiller was arrested by two federal agents as he headed for a drug counseling session. He later learned why: a junkie and his girlfriend, facing stiff prison sentences, had told investigators that Guthmiller had introduced them to his meth dealer around the time he was getting sober. That made him the middleman in a street-level drug distribution scheme.
Because this was a federal case, and the amount of meth exceeded 500 grams, or 1.1 pounds, Guthmiller was suddenly facing at least 10 years behind bars as a co-conspirator.... The charge thrust him, unwittingly, into a raging debate over a pillar of America's war on drugs: mandatory-minimum sentences. Intended to sideline high-level traffickers, the laws have been used to sweep thousands of nonviolent, small-time offenders into epic prison terms....
Guthmiller didn't dispute the couple's accusation. But he bristled at the government's portrayal of him as a scheming operative. Besides, he was a changed man: sober, working, studying for his GED, leading AA meetings, completing a drug court program, newly married. Still, he pleaded guilty, unwilling to risk a trial that could end in an even longer prison term. "I'm not an innocent person, but at the same time this is all a bit much, I feel," Guthmiller told NBC News.
At his sentencing in mid-February, U.S. District Court Judge John Gerrard agreed. He praised Guthmiller's turnaround, but said federal drug statutes gave him no choice. He called the case "Exhibit A" on why Congress needed to pass The Sentencing Reform and Corrections Act, which would give judges more flexibility. "A 10-year mandatory minimum sentence in a case like this is absolutely ridiculous," Gerrard said from the bench. "And the only reason I am imposing the sentence that I am imposing today is because I have to."...
The judge's remarks caught the attention of the Washington, D.C., advocacy group Families Against Mandatory Minimums. As he prepared to spend the next decade behind bars, Guthmiller found himself cast as a case study in America's unforgiving drug laws. "The whole idea is these 10-year sentences were written by Congress to go after serious drug offenders, and they're being applied to a guy who is home and is going to drive himself to prison," said Kevin Ring, the group's vice president. "He obviously isn't this major criminal that everyone should be so scared of."
This is a key point in the drug-law reform effort, which has inspired an unlikely alliance among Democrats and Republicans, many of whom gathered at the White House last week to discuss their campaign. Mandatory minimum sentences, toughened during 1980s crime panics, established criteria under which judges had to impose lengthy prison terms for drug trafficking. The penalties depended on the type of drug, the amount of it, the offender's criminal history and the nature of the crime — including whether the offense involved violence, weapons or children. The new laws triggered an explosion in the U.S. prison population, contributing to a dramatic decline in crime rates but also costing taxpayers millions.
That cost-benefit balance has since tipped. Researchers now say that mass incarceration's impact on the crime rate has ebbed. Studies show that the likelihood of punishment, rather than the length of a prison sentence, is more likely to deter criminals. And there are now millions of nonviolent ex-offenders — a disproportionate number of whom are black — unable to contribute to the economy, including many who return to crime. Reformers argue that the money America spends on prisons would be better used for cops, schools and alternatives to jail, such as probation and drug courts.
In a 2011 report to Congress, the U.S. Sentencing Commission found that mandatory minimums focused too heavily on the amount of drugs and not enough on the offender's role in the trafficking operation. The commission has since loosened some of its guidelines retroactively, allowing thousands of nonviolent, low-level drug offenders to leave prison early. President Barack Obama joined the effort by granting clemency to many others.
Those moves are considered Band-Aids compared to the larger fix offered by the Sentencing Reform Act, legislation that would allow judges to impose shorter prison terms for bit players. But the bipartisan bill is bogged down by election-year politics. The Justice Department, meanwhile, has tried to change the system from within, ordering federal prosecutors to focus on high-level dealers. It appears to be working: the number of mandatory-minimum cases has dropped to 45 percent of all federal drug cases, down from 66.8 percent in 2007.
John Higgins, chief of the narcotics unit at the U.S. Attorney's Office in Nebraska, said in a statement that his prosecutors followed the Justice Department's advice, seeking mandatory minimums "only in those cases that warrant it." That included Guthmiller's, he said. He declined to go into detail, but pointed to court hearings in which prosecutors alleged that Guthmiller's 2013 matchmaking between the dealer and the couple led to the sale of 15-pounds of meth. "Methamphetamine is the number one drug threat in Nebraska," Higgins said.
Thursday, April 28, 2016
Oklahoma joins long list of "red states" enacting significant sentencing reforms
As reported in this local article, headlined "Criminal justice reform bills signed into law by Oklahoma governor," another state known for its conservative politics should now also be known as another state that has enacted significant reforms intended to soften its sentencing system and reduce its prison population. Here are the details:
Four criminal justice reform measures were signed into law by Gov. Mary Fallin on Wednesday. The action comes at a time when the state’s prison system is operating at 122 percent of capacity.
“We want to be tough on crime, but we want to be smart on crime,” Fallin said.
The criminal justice reform bills she signed Wednesday are:
- House Bill 2472, which gives prosecutors discretion to file charges for crimes that are not subject to the 85 percent rule as misdemeanors instead of felonies. The 85 percent rule requires that those convicted of certain crimes, including rape and murder, serve at least 85 percent of their sentences before they can be considered for release.
- HB 2479, which reduces the mandatory minimum sentence for drug offenders charged only with possession.
- HB 2751, which raises the threshold for property crimes classified as felonies to $1,000 from $500.
- HB 2753, which would broaden defendants’ eligibility for drug courts and community sentencing. The measures are designed to curb the growing prison population.
“These measures are just the beginning,” said Rep. Pam Peterson, R-Tulsa, the House author of the bills. Fallin said it costs just under $20,000 a year to incarcerate an offender and about $5,000 a year for one defendant in drug court.
House Speaker Jeff Hickman, R-Fairview, said the state still has a crisis in corrections and incarceration. “This is not the end of the mission,” he said, adding that other criminal justice reform bills are working their way through the legislative process.
Former Tulsa County District Attorney Tim Harris attended the bill signing in the Blue Room at the Capitol. The measures give the state more options to prevent Oklahomans from becoming convicted felons and help them get the treatment they need, Harris said. “It is not soft on crime,” he said. “It holds criminals accountable without breaking the bank. It is cost neutral to the taxpayer right now.”
Oklahoma County District Attorney David Prater said the state needs to take steps to move mental health and substance abuse treatment to the front end. “With measures like this, I do believe that ultimately we will see a decrease in the prison population while not increasing violent crime, and actually this will have a positive impact, I believe ultimately, on public safety,” Prater said.
Monday, April 25, 2016
Notable dissent from Eighth Circuit panel ruling affirming re-imposed stat-max 10-year sentence for possessing unregistered sawed-off shotgun
A helpful reader alerted me to an intriguing ruling by a split Eighth Circuit panel today in US v. Webster, No. 15-3020 (8th Cir. April 25, 2016) (available here). Here is the key substantive paragraph from the majority per curiam ruling in Webster:
Webster’s challenge to the substantive reasonableness of his sentence is reviewed under a deferential abuse-of-discretion standard. See United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc). As Webster notes, the district court imposed the same sentence on remand as Webster received in the first sentencing, and this court identified in the first appeal several mitigating sentencing factors that indicated a reasonable probability Webster would have received a shorter sentence but for the sentencing error. See Webster, 788 F.3d at 893. However, the fact that this court “‘might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court.’” Feemster, 572 F.3d at 462 (quoting Gall v. United States, 552 U.S. 38, 51 (2007)). While “substantive review exists, in substantial part, to correct sentences that are based on unreasonable weighing decisions,” United States v. Kane, 639 F.3d 1121, 1136 (8th Cir. 2011) (quotation omitted), this court “must give due deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance.” Feemster, 572 F.3d at 461-62 (quoting Gall, 552 U.S. at 51). In reimposing the 120-month sentence, the district court commented in part that the Guidelines did not adequately take into account the seriousness of the offense: Webster had discharged the subject firearm into a fleeing vehicle, narrowly missing the driver. See U.S.S.G. § 5K2.6 (stating that court may depart if weapon was used in commission of offense; extent of increase depends on dangerousness of weapon, manner it was used, and extent its use endangered others; discharge of firearm may warrant “substantial sentence increase”). In short, after careful review, this court cannot say that this is the “unusual case” where the district court’s sentence will be reversed as substantively unreasonable. See Feemster, 572 F.3d at 464.
Judge Bright's dissent from this decision by the majority is what really makes Webster worth a full read by sentencing fans. Here are excerpts that provide a taste for why (with emphasis in the original and some cites omitted):
[O]ur reversal on the basis of substantive unreasonableness is often left to a district court’s decision to vary below the Guideline range. Rarely, if ever, do we hold sentences above the Guideline range substantively unreasonable. The pattern of failing to reverse above-Guideline sentences on the basis of substantive unreasonableness perpetuates our broken sentencing system.
As discussed by Former Attorney General Eric Holder, the problem with the federal sentencing system is the “outsized, unnecessarily large prison population.” See Eric Holder, Attorney Gen. of the U.S., U.S. Dep’t of Justice, Remarks at the Annual Meeting of the American Bar Association’s House of Delegates (Aug. 12, 2013), available at http://www.justice.gov/iso/opa/ag/speeches/2013/ag-speech- 130812 .html. As the Attorney General stated, “too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason.” Id. Our sentencing policy has also resulted in “harsher punishments” for “people of color” throughout the United States. Id. The White House recently highlighted the “decades of overly punitive sentencing policies” through the commutation of numerous prison terms....
Webster is an African-American man with a high school education. At the time of the offense, Webster had no employment record and came from a broken home. In spite of his adverse life circumstances, Webster has a limited criminal record with the lowest category criminal history score. At the resentencing hearing, Webster also informed the district court of his completion of a 14-hour drug treatment program, and attendance at both anger management and victim impact classes. (Resent’g Tr. 11- 12). Thus, in the year between Webster’s original sentence and the resentencing hearing, Webster showed the ability for successful rehabilitation....
Further, Webster was 20-years-old at the time of the offense. Since 2005, the Supreme Court, has consistently held young people are most likely to change during a period of incarceration. In fact, psychological research indicates the human brain does not reach its ultimate stage of development until adolescents reach their mid-twenties....
Based on the current move in this country to shorten federal sentences, coupled with Webster’s age , criminal history, education level, remorse, and efforts to rehabilitate himself, the district court’s punishment may well be excessive “under the totality of the circumstances in this case, judged in light of all of the § 3553(a) factors.” Kane, 639 F.3d at 1136. Therefore, I would vacate Webster’s sentence and remand for reconsideration consistent with this opinion.
"A Shared Sentence: The Devastating Toll of Parental Incarceration on Kids, Families and Communities"
The title of this post is the title of this recently-released policy report from The Annie E. Casey Foundation. Here is how the report's introduction get started:
The saying is all too familiar: Do the crime, do the time. But in America’s age of mass incarceration, millions of children are suffering the consequences of their parents’ sentences and our nation’s tough-on-crime practices.
These children feel the absence of that adult — whether it is several nights in jail or years in prison — in myriad ways, even if they weren’t sharing a home. They feel it when their refrigerator is bare because their family has lost a source of income or child support. They feel it when they have to move, sometimes repeatedly, because their families can no longer afford the rent or mortgage. And they feel it when they hear the whispers in school, at church or in their neighborhood about where their mother or father has gone.
Incarceration breaks up families, the building blocks of our communities and nation. It creates an unstable environment for kids that can have lasting effects on their development and well-being. These challenges can reverberate and multiply in their often low-income neighborhoods, especially if they live in a community where a significant number of residents, particularly men, are in or returning from jail or prison. And different obstacles emerge once parents are released and try to assume their roles as caregivers, employees and neighbors.
This report recommends policies and practices that put the needs of children of incarcerated parents first. We call on correctional systems, communities and state and local public agencies to help stabilize families and preserve their connections during incarceration — and successfully move forward once parents come home.
Saturday, April 23, 2016
White House Counsel on Economic Advisors releases big report providing "Economic Perspectives on Incarceration and the Criminal Justice System"
As highlighted in this prior post, Jason Furman, chairman of the White House Council of Economic Advisers, co-authored a New York Times commentary this past week headlined "Why Mass Incarceration Doesn’t Pay." Today, the full Council of Economic Advisers released this big new report titled "Economic Perspectives on Incarceration and the Criminal Justice System." Here is part of the lengthy report's lengthy executive summary:
Calls for criminal justice reform have been mounting in recent years, in large part due to the extraordinarily high levels of incarceration in the United States. Today, the incarcerated population is 4.5 times larger than in 1980, with approximately 2.2 million people in the United States behind bars, including individuals in Federal and State prisons as well as local jails. The push for reform comes from many angles, from the high financial cost of maintaining current levels of incarceration to the humanitarian consequences of detaining more individuals than any other country.
Economic analysis is a useful lens for understanding the costs, benefits, and consequences of incarceration and other criminal justice policies. In this report, we first examine historical growth in criminal justice enforcement and incarceration along with its causes. We then develop a general framework for evaluating criminal justice policy, weighing its crime-reducing benefits against its direct government costs and indirect costs for individuals, families, and communities. Finally, we describe the Administration’s holistic approach to criminal justice reform through policies that impact the community, the cell block, and the courtroom....
Criminal justice policies have the capacity to reduce crime, but the aggregate crime-reducing benefits of incarceration are small and decline as the incarcerated population grows.
- Given that the U.S. has the largest prison population in the world, research shows that further increasing the incarcerated population is not likely to materially reduce crime.
- Economic research suggests that longer sentence lengths have little deterrent impact on offenders. A recent paper estimates that a 10 percent increase in average sentence length corresponds to a zero to 0.5 percent decrease in arrest rates.
- Emerging research finds that longer spells of incarceration increase recidivism. A recent study finds that each additional sanction year causes an average increase in future offending of 4 to 7 percentage points.
Investments in police and policies that improve labor market opportunity and educational attainment are likely to have greater crime-reducing benefits than additional incarceration.
- Expanding resources for police has consistently been shown to reduce crime; estimates from economic research suggest that a 10 percent increase in police force size decreases crime by 3 to 10 percent. At the same time, more research is needed to identify and replicate model policing tactics that are marked by trust, transparency, and collaborations between law enforcement and community stakeholders.
- Labor market conditions and increased educational attainment can have large impacts on crime reduction by providing meaningful alternatives to criminal activity. Estimates from research suggest that a 10 percent increase in the high school graduation rate leads to a 9 percent drop in arrest rates, and a 10 percent increase in wages for non-college educated men leads to a 10 to 20 percent reduction in crime rates....
Given the total costs, some criminal justice policies, including increased incarceration, fail a cost-benefit test.
- Economic researchers have evaluated the costs and benefits of policies in different criminal justice areas and find that relative to investments in police and education, investments in incarceration are unlikely to be cost-effective.
- Moreover, cost-benefit evaluations of incarceration and sentencing often fail to consider collateral consequences, which would render these policies even more costly.
- CEA conducted “back-of-the-envelope” cost-benefit tests of three policies: increasing incarceration, investing in police, and raising the minimum wage.
- We find that a $10 billion dollar increase in incarceration spending would reduce crime by 1 to 4 percent (or 55,000 to 340,000 crimes) and have a net societal benefit of -$8 billion to $1 billion dollars.
- At the same time, a $10 billion dollar investment in police hiring would decrease crime by 5 to 16 percent (440,000 to 1.5 million crimes) have a net societal benefit of $4 to $38 billion dollars.
- Drawing on literature that finds that higher wages for low-income individuals reduce crime by providing viable and sustainable employment, CEA finds that raising the minimum wage to $12 by 2020 would result in a 3 to 5 percent crime decrease (250,000 to 510,000 crimes) and a societal benefit of $8 to $17 billion dollars.
Friday, April 22, 2016
Iowa Supreme Court requires giving reasons for even a presumptive consecutive sentence, and concurrence laments when "sentencing is given short shrift"
I helpful reader alerted me to an interesting little decision from the Supreme Court of Iowa today that makes me fell extra good going into the weekend. For starters, the majority opinion in Iowa v. Hill, No. 15–0030 (Iowa April 22, 2016) (available here), reaches the important and valuable conclusion that a sentencing court must give reasons to justify a consecutive sentence even if the law creates a presumption for such a sentence. Second, a special concurring opinion by Justice Appel cites some of my scholarship to stress the point that sentencing proceedings should generally get a lot more attention.
Here is the start of the majority opinion in Hill:
In this appeal, we must decide whether the presumption for consecutive sentences in Iowa Code section 908.10A (2013) excuses the district court from the general requirement to state why it imposed a consecutive sentence and, if not, whether the district court’s stated reason for this consecutive sentence was adequate. The defendant pled guilty to failure to comply with sex-offender registry requirements, an offense he committed while on parole for the underlying sex crime. The district court imposed a two-year prison sentence consecutive to his parole revocation and stated, “The reason for the sentence is protection of the community, seriousness of the crime, and the nature and circumstances of the offense.” The defendant appealed on grounds that the sentencing court failed to give reasons for imposing a consecutive sentence. The court of appeals affirmed, concluding the statutory presumption for consecutive sentences obviated any need to give reasons for imposing the consecutive sentence. The dissenting judge disagreed, noting section 908.10A allows discretion to impose concurrent or consecutive sentences, requiring the sentencing court to give reasons for its choice. On further review, we hold the district court must give reasons for imposing a consecutive sentence under section 908.10A and that the reasons given in this case were insufficient. Accordingly, we vacate the decision of the court of appeals, vacate the sentencing order, and remand the case for resentencing.
And here are snippets from Justice Appel's special concurring opinion in Hill:
In this era of plea bargains, sentencing is often the most critical phase of a criminal proceeding.... But too often in our courtrooms, sentencing is given short shrift by the participants. There often seems to be an assumption that the process that led to the determination of guilt is generally sufficient to inform the court of the necessary information for sentencing....
Once a lawyer has fulfilled the distinct professional responsibilities related to sentencing, the district court must exercise its discretion in setting the sentence. Even in a case that seems less consequential than other matters on a court’s crowded docket, the impact on the parties with a stake in the sentencing decision is substantial and requires a careful, thoughtful discretionary decision by the district court. Sentencing is not a time to cut corners....
The decision regarding whether sentences are served concurrently or consecutively ... is often of great moment and, as the court recognizes, must be made separately from the underlying sentence on each count. A decision to impose a lengthy prison term for the underlying crimes is not the same as the geometric increase in incarceration that may result from a decision to run sentences consecutively. In considering the distinct question of whether to run sentences consecutively or concurrently, the district court must be careful to avoid mere boilerplate recitation and demonstrate an exercise of reasoned judgment.
Just how should sentencing law deal with a truly habitual petty criminal?
This morning I came across this recent Huffington Post piece lamenting in its headline a seemingly a very severe application of Louisiana's habitual offender law: "Louisiana Man May Face Life For Shoplifting Snickers Bars: Critics say the case shows how habitual-offender laws can bully small-time crooks into pleading guilty rather than risking the consequences of a trial." To its credit, the HuffPo piece use this latest shoplifting case story to talk more generally about how severe mandatory sentencing laws can functionally place tremendous pressure on a defendant to plead guilty to try to avoid an extreme prison term.
But, rather use this story to reiterate my long-standing disaffinity for severe mandatory sentencing provisions (especially because of the often unchecked power it can place in the hands of prosecutors), I did a bit of digging into the story behind the habitual offender now in big trouble for his candy caper, and what I found prompted the question in the title of this post. Consider specifically the factual backstory reported in this local piece headlined "Accused New Orleans candy thief, facing 20 years to life, turns down deal for 4 years":
New Orleans shoplifter Jacobia Grimes, facing a possible sentence of 20 years to life for stuffing $31 worth of candy bars into his pockets at a Dollar General store, has rejected a plea offer from District Attorney Leon Cannizzaro’s office that would have seen him serve a four-year sentence as a double offender, his attorney said Friday.
The offer was the same sentence that Grimes agreed to serve when he pleaded guilty in 2010 to swiping socks and trousers in a similar shoplifting attempt. Grimes, 34, did not appear in court for a hearing Friday. He remains jailed on a violation of his $5,000 bond, having tested positive last week for opiates, cocaine, oxycodone and marijuana.
But Criminal District Court Judge Franz Zibilich again suggested to prosecutors and Grimes’ attorneys that they work out a deal for less jail time, followed by probation and drug treatment. Zibilich noted Grimes’ lengthy criminal record, which includes more than a dozen arrests since 2000. Most of the nearly nine years he has spent in prison since 2001 were the result of shoplifting convictions, records show. “I agree he has to pay the consequences, even though it’s candy. I would like to see some sort of split sentence,” Zibilich said.
However, Assistant District Attorney Iain Dover said state law may not allow it, given Grimes’ status as a potential “quad” offender under the state’s habitual offender law. “I can’t see how we get there under the law,” Dover said.
Cannizzaro’s office charged Grimes in a bill of information Feb. 3 under a state statute for theft of goods by someone with multiple convictions for the same thing. His earlier convictions elevated his alleged candy heist, on Dec. 9 at a Dollar General store on South Claiborne Avenue, to a felony. Whether Grimes would face 20 years to life if he’s convicted of the candy theft would be up to Cannizzaro’s office. State laws give prosecutors discretion following a conviction to raise the ante by filing a “multiple bill.”
His case, given the nature of the crime and the possible penalty, has gained wide attention, prompting Cannizzaro to publicly dismiss the notion that he would seek such a heavy sentence for a shoplifter. Dover argued that Grimes’ criminal record shows that slaps on the wrist don’t seem to work. “It’s not the state’s fault. It’s this guy’s fault. He’s had a chance. He’s had the opportunities,” Dover said.
Zibilich suggested that both sides could agree to go below the mandatory minimum prison sentence in a plea deal that includes treatment, so long as nobody challenged it. “Do we have to be married to every single syllable of this book?” he asked of the state’s penal code.
Grimes’ trial is scheduled for May 26. His attorneys, Miles Swanson and Michael Kennedy, have opted to forgo a jury and let Zibilich decide the case.
This only things that seems really obvious to me in this case is that even some extended stints in state prison are not working to help Jacobia Grimes stop being a petty criminal. Even recognizing that incapacitating this petty criminal via incarceration is likely not especially cost effective for the taxpayers of Louisiana, at this point what other punishment options would you suggest the prosecutor and judge seriously consider under these circumstances?
April 22, 2016 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)
Thursday, April 21, 2016
"Restoring Human Capabilities After Punishment: Our Political Responsibilities Toward Incarcerated Americans"
The title of this post is the title of this lengthy paper by Kony Kim now available via SSRN. Here is the abstract:
Why should non-incarcerated Americans invest in the wellbeing of incarcerated Americans? To date, our public discourse about penal reform has avoided this question, focusing on pragmatic reasons for facilitating “prisoner reentry” and “reintegration” while shelving unresolved, and deeply contested, philosophical questions about criminal justice and punishment. As a result, we as a society have engaged in much data-driven policy talk about the economic costs and benefits of reducing recidivism, but little normative reflection about the rights and responsibilities held by incarcerated adults who are at once human beings, members of society, persons convicted of crimes, victims of inhumane punishment — and, often, survivors of poverty.
Thus, my first task is to clarify the individual and collective obligations that apply within our context of mass incarceration: the moral responsibilities that are held by and toward incarcerated Americans, non-incarcerated Americans, and our shared public institutions. My second task is to draw out implications for policy and discourse: to explain not only what reform measures we should prioritize, but how we should frame and assess them. In particular, I call for systemic changes that would provide all incarcerated Americans with opportunities to pursue higher education and to develop redemptive self-narratives; and I argue that we should frame and assess such measures not primarily as cost-saving devices, but as ethically significant efforts to secure capabilities that are essential to human flourishing and required by justice.
In setting forth these arguments, my purpose is to spark deeper ethical reflection about correctional reform, and specifically to invite meaningful engagement with one key normative question: What do we, as a civilized society with a history of social and penal injustice, owe incarcerated Americans? Ultimately, I wish to underscore that the people confined in our prisons have legitimate moral claims upon us – insofar as they remain human beings and members of society and, as such, bearers of rights as well as responsibilities. Equally, I wish to establish that, in our collective efforts to repair the harms of mass incarceration, we can and should empower those Americans most directly harmed by our penal system to lead the way in transforming it.
Economists explain "Why Mass Incarceration Doesn’t Pay"
Jason Furman, chairman of the White House Council of Economic Advisers, and Douglas Holtz-Eakin, a former director of the Congressional Budget Office, have this new New York Times commentary headlined "Why Mass Incarceration Doesn’t Pay." Here are excerpts:
Congress is considering bipartisan legislation to loosen tough sentencing laws. The bill faces resistance from some lawmakers. As economists who differ on many issues, we both agree that costbenefit analysis provides a useful framework for analyzing complicated questions. And in this case, we agree that the verdict of such analysis is clear: Our sentencing rules are failing and need to be changed.
On the benefit side of the equation, prisons and jails play an essential role in managing violent criminals and reducing crime, particularly helping people in poor communities who are the most likely to be victims of murder, robbery or other violent crimes.
But a general rule in economics — the law of diminishing marginal benefits — applies to incarcerating additional people or adding years to sentences. Research finds that more incarceration has, at best, only a small effect on crime because our incarceration rate is already so high. As the prison population gets larger, the additional prisoner is more likely to be a less risky, nonviolent offender, and the value of incarcerating him (or, less likely, her) is low.
The same general principle applies to the length of prison sentences, which in many cases have gotten longer as a result of sentence enhancements, repeatoffender laws, “three strikes” laws and “truth-in-sentencing” laws. Longer sentences do not appear to have a deterrent effect; one study finds, for example, that the threat of longer sentences has little impact on juvenile arrest rates. Other studies have found that sentencing enhancements have only modest effects on crime. They are unlikely to meaningfully affect the overall crime rate or generate meaningful gains in public safety.
Moreover, in many cases the analysis suggests that adding prisoners or years to sentences can be harmful. A growing body of research shows that incarceration and longer sentences could increase recidivism. Individuals may build criminal ties while incarcerated, lose their labor-market skills and confront substantial obstacles to reentry after release. A new study finds that each additional year of incarceration increases the likelihood of reoffending by four to seven percentage points after release.
The bottom line: The putative benefits of more incarceration or longer sentences are actually costs. Those costs are not confined to the prison population. Time in prison not only means a loss of freedom, but it also means a loss of earnings, risks to the health and safety of the incarcerated, and prolonged absences from family that can strain marriages and increase behavioral problems in children. The probability that a family is in poverty increases by nearly 40 percent while a father is incarcerated....
Finally, more than $80 billion is spent annually on corrections, or over $600 per household. The annual cost of imprisoning one person averages approximately $30,000 for adults and $110,000 for juveniles, higher than the cost of a year of college. At the federal level, the Bureau of Prisons budget grew 1,700 percent from 1980 to 2010 and now devours more than 25 percent of the entire Department of Justice budget.
There are other tools that can reduce crime more cost-effectively, including promoting employment and wage growth and investing in education. That is one reason that between 2008 and 2012, a majority of states were able to reduce incarceration and crime. Incarceration plays an important role in promoting public safety, and imposing prison sentences for criminal conduct has moral and practical dimensions. But the criminal justice system should be designed to ensure that the benefits of incarceration exceed the costs. Individuals incarcerated for nonviolent drug crimes — 50 percent of the federal prison population — pose a low risk, and the costs of incarcerating these people outweigh the benefits.
Similarly, since criminal behavior declines and costs increase with age, releasing older individuals who have already served lengthy sentences is also likely to yield net benefits.
Wednesday, April 20, 2016
Graphic portrayal of the sentencing price of prosecutorial misconduct in post-Katrina shooting case
As reported in this local article, headlined "Ending decade-long Danziger Bridge case, federal judge accepts guilty pleas from 5 ex-NOPD officers," today a set of significant pleas were entered in a high-profile local police misconduct prosecution that ultimately resulted in high-profile federal prosecutorial misconduct. The reprinted graphic from the piece and these excerpts from the press article highlight why this all became (like so many matters) ultimately a sentencing story:
Five former New Orleans police officers involved in the Danziger Bridge shootings after Hurricane Katrina, or the coverup that followed, pleaded guilty in federal court in New Orleans on Wednesday, taking reduced sentences and avoiding another trial after their previous convictions were thrown out.
The plea deals bring an end to a case that has stretched on for more than a decade and come to symbolize the chaos and government negligence that followed the storm. The former officers received dramatically shorter prison terms than they did after a federal jury convicted them on numerous charges in 2011. The original sentences ranged from six years to 65. Those read out in court on Wednesday ranged from 3 years to 12.
The original convictions were tossed out in 2013 by U.S. District Judge Kurt Engelhardt over the online commenting scandal that by then had engulfed the office of former U.S. Attorney Jim Letten. In his ruling, Engelhardt said the anonymous comments that Letten’s top lieutenants had been making on news websites amounted to “grotesque prosecutorial misconduct,” even though those prosecutors were not on the trial team that convicted the Danziger defendants.
On Wednesday, Engelhardt outlined guilty pleas from the five officers, all but one of whom have remained behind bars while lawyers on both sides of the case prepared for the possibility of another trial. Arthur “Archie” Kaufman has been free on bond; Kenneth Bowen, Robert Gisevius, Robert Faulcon and Anthony Villavaso were brought to court from prison in orange jumpsuits.
Preparations for Wednesday’s hearing took place with an unusual amount of secrecy. It was not until Wednesday morning that documents were unsealed in the court record showing that the re-arraignment and sentencing would take place. In the meantime, extra security and an overflow room had been arranged at the downtown federal court building, where family members of the victims gathered to watch the conclusion of a decade-long ordeal.
The following are the original prison terms handed down to each of the five officers, and the new terms outlined on Wednesday. All of the officers will receive credit for time served.
Kenneth Bowen: originally 40 years, now 10 years.
Robert Gisevius: originally 40 years, now 10 years.
Robert Faulcon: originally 65 years, now 12 years.
Anthony Villavaso: originally 38 years, now 7 years.
Arthur Kaufman: originally 6 years, now 3 years.
The only remaining loose ends in the Danziger case are the charges pending against Former Sgt. Gerard Dugue, who was charged with abetting the coverup and was tried separately from the other officers in 2012. Engelhardt called a mistrial after a prosecutor mentioned an unrelated case that was supposed to be off-limits, and the government has not sought to retry the case since.
Tuesday, April 19, 2016
Taking full stock of the Prez Clinton's punishment legacy by looking at PLRA (and AEDPA and ....)
Though I have enjoyed seeing the 1994 Clinton Crime bill getting lots and lots of attention recently (example here and here), there is so much more to legacy of the "Clinton years" to the full story of US punishment practices. This new New Republic commentary, headlined "Another Clinton-Era Law that Needs to Be Repealed: The Prison Litigation Reform Act is still trampling on prisoners' legal rights," tells another piece of the story, and here are excerpts:
Signed into law by President Bill Clinton in 1996 as a rider to the annual congressional appropriations bill, the PLRA laid waste to the ability of incarcerated people to bring prison officials to court for violations of their constitutional rights, whether it be racial discrimination, lack of medical care, or brutality by prison guards. The act was championed as a solution to the thousands of supposed “frivolous lawsuits” by prisoners, with barely any discussion by Congress about its far-reaching effects.
Locked away, those in prison are easily demonized, unable to refute any exaggerations or myths created by those on the outside. One story publicly hyped by members of Congress leading up to the act’s passage had a prisoner filing suit after receiving crunchy peanut butter instead of creamy. But when a federal judge researched the case later, he found that the issue wasn’t about that prisoner’s taste in condiments, but that the prisoner had never been reimbursed after returning the item. The price of a jar of peanut butter might seem trivial to those of us on the outside, but most people in prison are poor and are often deeply in debt. Plus, many prisons overcharge for simple items (the jar of peanut butter cost $2.50, significantly more than the average cost at the time). Looking back, the PLRA did not solve a problem of “frivolous” litigation, rather it masked and discredited the legitimate claims of people with nowhere else to turn.
Since the PLRA became law, tremendous burdens have been placed on prisoners wishing to file suit for violations of their constitutional rights. For example, one of the law’s provisions forces you to go through the prison’s administrative complaint procedures before bringing an actual lawsuit. This can take months. Imagine a prisoner who is in pain and in need of medical treatment, but ignored by prison staff: She must not only file her complaint with the same staff that is denying her treatment, but wait for a refusal, appeal that decision, and only after a judgment on that appeal can she then file a legal case beyond prison walls. By that time, it may be too late for a court to do anything.
As the title of this post is meant to suggestion, lots of other Clinton-era federal criminal laws and developments, particularly the Anti-terrorism and Effective Death Penalty Act (AEDPA) and Prez Clinton's decision to sign-on to Congress's rejection of the US Sentencing Commission's crack/powder amendment to equalize the guidelines, ought to be a continuing topic of conversation as we consider putting another Clinton in the White House this year.
Prior related posts:
- The many challenges of a fully nuanced understanding of the Clintons, crime, punishment and the 1994 Crime Bill
- Continued compelling commentary on the Clintons, crime, punishment and the 1994 Crime Bill
"The Meaning of Life in Criminal Law"
Like many sentient beings, I have long wondered about the meaning of life. Helpfully, this new article by Eldar Haber posted to SSRN, which has the same title as the title of this post, talks throught life's meaning in the context of criminal law. Here is the abstract:
Inflation and deflation change the value of money. Policymakers have used this rationale to amend legislation fixed to a monetary value. What is not acknowledged is that increase in life expectancy could also be a form of inflation, and, accordingly, could affect “the value” of nonmonetary sanctions — chiefly, imprisonment and capital punishment. Under a utilitarian approach to criminal law, with an increase in life expectancy, nonmonetary sanctions with confined-terms reduce their deterrent value, while nonmonetary sanctions with finite-terms, inter alia, life-imprisonment without parole and capital punishment, increase their deterrent value and severity. Under a retributive approach to criminal law, changes in life expectancy also affect the magnitude of nonmonetary criminal sanctions and change the proportionality between the criminal conduct and the punishment. Nevertheless, although life expectancy in the United States has increased substantially, legislators have not adjusted nonmonetary criminal sanctions accordingly. At the least, scholars and policymakers failed to recognize the role of life expectancy in the formation of criminal sanctions. Hence, current criminal punishments have not been recalibrated properly.
This Article revisits theories of criminal punishments while offering a new perspective on determining nonmonetary criminal sanctions that recognizes life expectancy considerations. It examines the current and desirable approach toward life expectancy considerations in criminal punishment theories while reviewing statistical data on the increase of life expectancy in the United States since independence. After discussing criminal punishment theories, and evaluating the role of life expectancy considerations under them, I conclude that criminal law theories, to a great extent, support life expectancy considerations. Under both utilitarian and retributive approaches, lack of practical considerations of life expectancy in criminal punishments could lead to a misconception of criminal law theories and erode the important role played by criminal sanctions. Accordingly, this Article examines consequences of failing to apply life expectancy considerations in practice and proposes modest solutions to overcome this perceived problem.
Thursday, April 14, 2016
Two timely stories of marijuana reform not yet helping those serving "Outrageous Sentences For Marijuana"
From two very different media sources today, I see two very notable stories of defendants convicted of marijuana-related offenses serving extreme sentences for a type of behavior that is now "legal" at the state level in some form throughout much of the United States.
First, the New York Times has this new editorial headlined "Outrageous Sentences for Marijuana," which starts this way:
Lee Carroll Brooker, a 75-year-old disabled veteran suffering from chronic pain, was arrested in July 2011 for growing three dozen marijuana plants for his own medicinal use behind his son’s house in Dothan, Ala., where he lived. For this crime, Mr. Brooker was given a life sentence with no possibility of release.
Alabama law mandates that anyone with certain prior felony convictions be sentenced to life without parole for possessing more than 1 kilogram, or 2.2 pounds, of marijuana, regardless of intent to sell. Mr. Brooker had been convicted of armed robberies in Florida two decades earlier, for which he served 10 years. The marijuana plants collected at his son’s house — including unusable parts like vines and stalks — weighed 2.8 pounds.
At his sentencing, the trial judge told Mr. Brooker that if he “could sentence you to a term that is less than life without parole, I would.” Last year, Roy Moore, chief justice of the Alabama Supreme Court, called Mr. Brooker’s sentence “excessive and unjustified,” and said it revealed “grave flaws” in the state’s sentencing laws, but the court still upheld the punishment.
On Friday, the United States Supreme Court will consider whether to hear Mr. Brooker’s challenge to his sentence, which he argues violates the Eighth Amendment’s ban on cruel and unusual punishments. The justices should take the case and overturn this sentence.
Second, AlterNet has this new piece with this lengthy headline, "As Marijuana Goes Mainstream, California Pioneers Rot in Federal Prison: Luke Scarmazzo and Ricardo Montes opened a dispensary in Modesto. Now they're doing 20 years in federal prison. Their families want them home. " Here is how it starts:
Behind the headlines about President Obama’s historic visit to federal prisons and highly publicized releases of non-violent drug offenders, the numbers tell a different story. Despite encouraging and receiving more clemency petitions than any president in U.S. history — more than the last two administrations combined, nearly 20,000 — very few federal prisoners are actually being granted clemency.
Nowhere is this irony more glaring than in the world of legal cannabis. Cannabis is now considered the fastest-growing industry in the nation, yet remains federally illegal. The sea change from the Department of Justice since 2009 has allowed state-legal cannabis industries to thrive. Federal solutions seem to be around the corner and for the first time cannabis businesses are being publicly traded and receiving legal Wall Street investment.
Ricardo Montes and Luke Scarmazzo are two of the 20,000 federal prisoners appealing to President Obama for clemency. They have exhausted their appeals and are serving 20-year mandatory minimum sentences for openly running a dispensary in the early days of California’s pioneering medical cannabis law. The irony isn’t lost on them that their crimes are now legal and profitable, but their appeals for clemency aren’t based on justice anymore — they just want to be home with their kids. Their daughters, Jasmine Scarmazzo, 13, and Nina Montes, 10, are appealing directly to President Obama to release their fathers via a Change.org petition.
Given that the Supreme Court has often stated and held that the Eighth Amendment's "scope is not static," but "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society,” Trop v. Dulles, 356 U.S. 86, 101 (1958), I think both these cases should be pretty easy constitutional calls if courts and/or executive branch officials took very seriously a commitment to updating and enforcing Eighth Amendment limits on lengthy prison terms in light of the obviously "evolving standards of decency" concerning medical use of marijuana throughout the United States and the world. But, while hoping for some judicial or executive action in this arena, I am not holding my breath that any of these medical marijuana offenders will be free from incarceration anytime soon.
April 14, 2016 in Drug Offense Sentencing, Marijuana Legalization in the States, Offense Characteristics, Pot Prohibition Issues, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1)
"Costs of Pretrial Detention"
The title of this post is the title of this notable new piece authored by Shima Baradaran Baughman now available via SSRN. Here is the abstract:
Spending on U.S. incarceration has increased dramatically over the last several decades. Much of this cost is on incarcerating pretrial detainees — inmates not convicted of a crime — which constitute the majority of individuals in our nation’s jails.
Current statutory schemes give judges almost complete discretion to order pretrial detention based on unexplained or unidentified factors. With this discretion, judges tend to make inconsistent decisions in every jurisdiction, some releasing almost all defendants — including the most dangerous — and others detaining most defendants — even those who are safe to release. There are constitutional and moral reasons to evaluate our current detention scheme, but even the fiscal impact of pretrial detention alone calls for an empirical analysis.
Although legal scholarship has applied cost-benefit analysis to other areas of criminal law, this Article is the first attempt at conducting such analysis in the pretrial arena. This Article compares the risk posed by each defendant and the cost of any crimes they may potentially commit while released with the costs incurred by detaining these defendants. The results show that relying on the cost-benefit model provided here, judges could bring significant savings — approximately $78 Billion, increased safety, and potentially more equitable pretrial detention decisions.
Wednesday, April 13, 2016
Important drug offender data begging hard normative policy question regarding noncitizen US prisoners
I just came across this interesting posting and data analysis via NumbersUSA, a group that describes itself as "moderates, conservatives & liberals working for immigration numbers that serve America's finest goals." The posting is titled "Sentencing Reform Legislation Would Disproportionately Favor Non-Citizens," and here are some excerpts (with one very critical line emphasized by me toward the end of this excerpt):
U.S. prisoner data clearly shows two things. One, the majority of low-level drug offenders are serving their sentences in state, not federal prisons. Two, most of those incarcerated in federal prison for drug charges are non-citizens....
[Only] 3.6 percent of all prisoners, or 48,600, under state jurisdiction are serving time for drug possession. The remaining drug offenders were convicted for trafficking and other related offenses, such as facilitating the illicit drug trade. The distribution of drug prisoners in state prisons is fairly evenly divided among Whites, Blacks, and Hispanics. A higher proportion of females (24%) than males (15%) are incarcerated for drugs in state prisons.
As of April 7, 2016, there were 196,285 prisoners in the custody of the Federal Bureau of Prisons, with 46.5 percent of these prisoners, (91,270) sentenced for drug offenses. The percentage of prisoners incarcerated for drugs is just over two and half times greater than the state prison population. However, overall, there are fewer prisoners serving time in federal prison for drug charges than in state prisons (212,000).
The Federal government collects data differently for state and federal prisoners. In order to get the breakdown of offenses for federal drug prisoners, data from the U.S Sentencing Commission is available. Looking at sentencing statistics from FY2007 to FY2015, a clear distinction between federal and state prison populations is that the proportion of federal prisoners serving time for drug possession is much higher than for state prisoners, and Hispanics are disproportionately represented among federal drug inmates.
There is a higher ratio of Hispanics serving drug sentences for both trafficking and possession convictions in federal prisons. As Daniel Horowitz pointed out, this is because many of the drug offenders in federal prison are serving sentences for drug convictions related to the illicit drug trade on the U.S.-Mexico border.
In response to a congressional request regarding sentencing data for federal drug offenses, the U.S. Sentencing Commission sent data showing that 95% of the 305 individuals serving time in federal prison for simple drug offenses are non-citizens and 95.7 % were sentenced in southwest border districts — virtually all of them in Arizona. Furthermore, 95.7 % of the simple possession drug crimes for which offenders are incarcerated involved marijuana and the median weight of the drug involved in cases from border districts was 22,000 grams (approximately 48 pounds). Only 13 simple possession cases were tried in non-border districts in FY 2014.
In a letter sent to Sen. Jeff Sessions last fall, the Federal Bureau of Prisons reported that 77% of individuals convicted of federal drug possession charges and more than 25% of individuals convicted of federal drug trafficking charges in FY2015 were non-citizen.
The profile for federal drug prisoners is different than at the state level, and this is why Congress needs to recognize and address these differences when crafting legislation that will effect this population. Federal drug and immigration enforcement are for now inextricably tied together....
Sentencing reform bills reducing penalties for some federal prisoners (S. 2123 and H.R. 3713) are being portrayed by their supporters as a long overdue corrective to harsh sentencing laws for individuals who violate federal drug laws, which they argue create racial disparities in the nation’s prison population.
Reforming drug sentencing laws is one thing. Releasing criminal aliens back into U.S. interior, is quite another. The Obama Administration has already shown its willingness to do the latter, including those who were deemed to be criminal threats to the public. Without a bill with strong, clear language and, most importantly, a Congress willing to extend oversight over the executive branch, it is plain that the sentencing reform legislation likely to soon come before Congress will accomplish little more than to provide an early release for dangerous criminal aliens, while still failing to hold President Obama to account for his failure to enforce U.S. immigration law.
This data discussion is a bit confusing because of its many references to both federal and state prisoners and both trafficking and possession offense and both percentages and absolute numbers. But, data particulars and confusions aside, the piece rightly highlights a very important data reality integral to any sophisticated discussion of efforts to reduce the federal prison population, especially for drug offenses: a significant percentage (and thus a large total number) of imprisoned and future federal drug offenders who would benefit from federal sentencing reform (perhaps up to 35% or even higher) would be noncitizens.
It understandable that persons deeply concerned about illegal immigration, and likely eager for policy changes always to prioritize benefits to US citizens over noncitizens, would find troublesome the statistical reality that federal sentencing reforms would benefit noncitizens significantly. However, this perspective may change if one realizes that noncitizen serious federal drug offenders who would get reduced sentences under any proposed sentencing reform would not get released "back into the US interior." Rather, any and every noncitizen serious federal drug offender who gets a reduced sentence is always going to be subject to immediate deportation once release from prison.
The important reality the many imprisoned and future noncitizen federal drug offenders are all to be deported after serving their federal prison sentences raises the hard normative policy question that is begged in any discussion of this data. That question is: What normative policy goal are we really achieving — other than spending billions of federal taxpayer dollars to house, feed and provide medical care to criminal noncitizens — by having noncitizens serve extra long federal prison terms if they are all to be deported at the end of these their terms no matter what?
Bill Otis and many others opposing proposed federal reforms are quick to stress the risk of increased domestic crime if we reduce current and future federal sentences and thereby release former offenders back into US communities sooner. But that argument really does not hold up when we are talking about noncitizen offenders who will be forcibly deported to another nation after finishing whatever length of sentence they serve at federal taxpayer expense. (Indeed, I suspect imprisoning noncitizens in the US for long terms actually leads criminal noncitizens to become ever-more connected to US citizens and makes them even more likely to seek illegal return to the US after they are deported).
April 13, 2016 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Offender Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (33)
Continued compelling commentary on the Clintons, crime, punishment and the 1994 Crime Bill
In this post over the weekend, titled "The many challenge of a fully nuanced understanding the Clintons, crime, punishment and the 1994 Crime Bill," I highlighted nearly a dozen articles and commentary to stress that there are many nuances essential to a full understanding of just what the 1994 Crime Bill did (and did not) achieve, and just what has been the role and record of former Prez Bill Clinton (and Prez candidate Hillary Clinton) on criminal justice reforms past and present. And because these stories are so nuanced, and I glad we are continuing to see lots of worthy commentary on these fronts, such as these recent pieces from various sources:
I am very pleased to see this important 20-year-old story is getting some useful attention now as part of the 2016 campaign. But, for a variety of reasons, I hope attention soon turns to the more recent (very mixed) records of Presidents George W. Bush and Barack Obama on crime and punishment with focused questions to all the remaining 2016 candidates about whether, why and how they will be eager to continue or to change various modern federal criminal justice policies and practices.
Sunday, April 10, 2016
The many challenges of a fully nuanced understanding of the Clintons, crime, punishment and the 1994 Crime Bill
The notable interchange a few days ago between former Prez Bill Clinton and protestors (noted here) has brought renewed attention to the contributions of the 1994 "Clinton" Crime Bill to mass incarceration and the massive reduction in modern crime rates. Like every other important criminal justice story, there is considerable nuance to fully understanding (1) just what the 1994 Crime Bill did (and did not do), and (2) just what this single piece of federal legislation has produced with respect to crime and punishment two decades later. Also full of considerable nuance is the role and record of Prez Bill Clinton (and now Prez candidate Hillary Clinton) on criminal justice reforms past and present.
All the political, policy and practical dynamics of the Clintons' record and the 1994 Crime Bill justifies considerable scholarly commentary, and lots of important nuances cannot be fully captured by soundbites or brief blog postings. Nevertheless, I thought it might be useful here, in service to encouraging a richer understanding of all these matters, to collect below a number of notable commentaries I have seen that help highlight why any simple account of the Clintons, crime, punishment and the 1994 Crime Bill is likely to be simply wrong:
"Former CBC Chair Who Voted For 1994 Crime Bill Tries to Cover Up His Role: Kweisi Mfume had boasted the CBC put its 'stamp' on the bill, the largest crime bill in U.S. history, which provided new cops and prisons."
UPDATE: Here is another recent addition to this list via the New York Times: "Prison Rate Was Rising Years Before 1994 Law"
Thursday, April 07, 2016
Former Prez Clinton takes on protestors complaining about his tough-on-crime policies
This new Reuters article, headlined "Bill Clinton confronts protesters who say his crime reforms hurt blacks," reports on a notable exchange about crime and punishment involving former President Bill Clinton today. Here are the details:
Former President Bill Clinton faced down protesters angry at the impact his crime reforms of 20 years ago have had on black Americans and defended the record of Hillary Clinton, his wife, who is relying on the support of black voters in her quest for the presidency. The former president spent more than 10 minutes confronting the protesters at a campaign rally in Philadelphia for his wife on Thursday over criticisms that a 1994 crime bill he approved while president led to a surge in the imprisonment of black people....
In Philadelphia, several protesters heckled the former president mid-speech and held up signs, including one that read "CLINTON Crime Bill Destroyed Our Communities."
Video footage of Hillary Clinton defending the reforms in 1994 has been widely circulated during the campaign by activists in the Black Lives Matter protest movement. In the footage she calls young people in gangs "super-predators" who need to "be brought to heel." Hillary Clinton, 68, who also has faced protesters upset by her remarks, in February said she regretted her language.
Bill Clinton, 69, who was president from 1993-2001, on Thursday defended her 1994 remarks, which protesters say were racially insensitive, and suggested the protesters' anger was misplaced. "I don't know how you would characterize the gang leaders who got 13-year-old kids hopped on crack and sent them out on the street to murder other African-American children," he said, shaking his finger at a heckler as Clinton supporters cheered, according to video of the event. "Maybe you thought they were good citizens. She (Hillary Clinton) didn't."
"You are defending the people who kill the lives you say matter," he told a protester. "Tell the truth."
Hillary Clinton promised to end "mass incarceration" in her first major speech of her campaign last year. She has won the support of the majority of black voters in every state nominating contest so far, often by a landslide....
Bill Clinton said last year that he regrets signing the Violent Crime Control and Law Enforcement Act into law because it contributed to the country's high incarceration rate of black people for nonviolent crimes. On Thursday, he did not explicitly recant those regrets, but appeared to be angry at any suggestion the bill was wholly bad.
The legislation imposed tougher sentences, put thousands more police on the streets and helped fund the building of extra prisons. It was know for its federal "three strikes" provision that sent violent offenders to prison for life. The bill was backed by congressional Republicans and hailed at the time as a success for Clinton....
Bill Clinton's remarks on Thursday drew criticism online. Some saw him as dismissive of the Black Lives Matter movement, a national outgrowth of anger over a string of encounters in which police officers killed unarmed black people.
Tuesday, April 05, 2016
"Keeping Track: Surveillance, Control, and the Expansion of the Carceral State"
The title of this post is the title of this new article by Kathryne Young and Joan Petersilia which reviews a trio of criminal justice books. Here is the abstract:
This Review argues that an important root cause of our criminal justice ails can be found in the social processes that comprise the system’s daily activities and forms of control over individual Americans — processes largely taken for granted. To explore the ground level interpersonal interactions that underpin the criminal justice system, we engage three recent books: Pulled Over: How Police Stops Define Race and Citizenship by Professors Charles Epp, Steven Maynard-Moody, and Donald Haider-Markel; On the Run: Fugitive Life in an American City by Professor Alice Goffman; and The Eternal Criminal Record by Professor James Jacobs.
Substantively and methodologically, the books might first seem an odd trio. But together, they reveal the importance of a key phenomenon: “surveillance” in the word’s broadest sense — keeping track of people’s movements, histories, relationships, homes, and activities.
Sunday, April 03, 2016
Might the US be willing to learn from the German prison experience?
The question in the title of this post is prompted by this new Huffington Post commentary by Vincent Schiraldi, headlined "What we can learn from German prisons." The commentary provides a bit of a preview of this segment to air tonight on 60 Minutes under the title "This is prison? 60 Minutes goes to Germany: Germany's prison system keeps convicts comfortable, costs less and has lower recidivism rates, but would Americans ever accept it?". Here is the start of the Huffington Post piece:
On Sunday, April 3, 60 Minutes will air a story on several U.S. delegations to German prisons by advocates, researchers and public officials that should be mandatory viewing for anyone who works in or cares about America’s massive prison problem. In a country that has only a fraction of our incarceration rate, even Germany’s deepest-end prisons are humane and decent in ways that, at least at present, are difficult to fathom in the U.S. context.
The groups who funded or organized the trips - the Vera Institute of Justice, John Jay College of Justice, and the Prison Law Office - hope to change that. Inspired by these delegations, when I was working for Mayor Bill de Blasio’s Office of Criminal Justice, I organized a study tour to one of the prisons they had visited - the Neustrelitz Prison near Berlin, which houses adolescents and young adults.
The place couldn’t have been more different than a U.S. prison or juvenile facility. In fact, it was a bit of both, because young people are allowed to be tried in Germany’s juvenile courts up to age 21, unlike U.S. juvenile courts whose jurisdiction expires somewhere between ages 16 and 18, depending on the state.
The young people we met were all involved in programming from farming, to wood shop, to metal work, to in-depth therapy. The freedom of movement was extraordinary, with most youth sleeping in unlocked rooms at night and eventually going on home visits and transitioning out to daytime work, returning to the facility at night. Sentences were much shorter than those experienced by people locked up in the U.S., which partially explains why only 79 out of every 100,000 Germans are behind bars, compared to America’s world-leading incarceration rate of 700 per 100,000.
Saturday, April 02, 2016
"Unfinished Project of Civil Rights in the Era of Mass Incarceration and the Movement for Black Lives"
The title of this post is the title of this newly published article authored by Nicole Porter. Here is the piece's introduction:
American criminal justice system has been dominated by relentless growth for the last forty years. The culture of punishment, in part driven by political interests leveraging “tough on crime” policies and practices marketed as the solution to the “fear of crime,” has been implemented at every stage of the criminal justice process: arresting, charging, sentencing, imprisonment, releasing, and post-incarceration experiences in the era of mass incarceration.
While it may not excuse criminal offending, the destructive effects of mass incarceration and excessive punishment are visited disproportionately upon individuals and communities of color and reinforce that the project of the civil rights revolution remains unfinished. In recent years, there has been growing consensus across ideological lines to address mass incarceration. Yet, policy changes are incremental in approach and do not achieve the substantial reforms needed to significantly reduce the rate of incarceration and its collateral impacts. Incremental policy reforms include: reducing the quantity differential between crack and powder cocaine that results in racially disparate sentencing outcomes at the federal level and in certain states; reclassifying certain felony offenses to misdemeanors; expanding voting rights and access to public benefits for persons with felony convictions; and adopting fair chance hiring policies for persons with criminal records.
The Movement for Black Lives, or Black Lives Matter, offers a new public safety framework to finish the project of civil rights in the era of mass incarceration. This movement has a sophisticated analysis that seeks to address the underlying structural issues that result in poor policy outcomes for communities of color, including high rates of incarceration. The public safety framework does not excuse criminal offending, but offers a new approach of viewing justice-involved persons — a disproportionate number of whom are African American and Latino — as worthy recipients of public safety responses not dominated by arrests, admissions to prison, or collateral consequences.
Aligning a Black Lives Matter framework with public safety strategies expands policy responses beyond the criminal justice system to evidence-based interventions demonstrated to reduce criminal offending. Research shows that early childhood education, quality healthcare, and targeted employment programs can help reduce recidivism and prevent justice involvement. More importantly, the Black Lives Matter framework can help to shift norms away from the punitiveness that dominates U.S. criminal justice policy.
Noticing the notable nature of states now categorically banning LWOP for juvenile murderers
This Washington Post piece by Amber Phillips spotlights an interesting reality as states continue to engage with some of the Supreme Court's recent Eighth Amendment jurisprudence. This piece is headlined "States are getting rid of life sentences for minors. And most of them are red states." Here are excerpts:
As America revisits its tough-on-crime policies from decades past, much of how to fix our criminal justice system is still up for debate. Most prominently, a bipartisan bill to rewrite the nation's sentencing laws is slogging through Congress and may well get stuck there.
But criminal justice reform advocates are celebrating a surprising amount of success in one area largely off the radar of the national debate: banning the practice of sentencing minors to life in prison without parole.
Twenty-one states ban entirely or in most cases the practice of sentencing minors to life without parole. Many of those bans have been instituted in the past decade. Lately, Republican-leaning states have been picking up the cause, an indication that the sentencing practice instituted in the 1990s is on its way out.
On Tuesday, Utah became the second state this year to ban such sentences, after South Dakota. And in the past few years, Wyoming, Nevada and West Virginia have instituted some version of the ban. Since a critical 2012 Supreme Court decision on this issue, the number of states that have banned the practice has more than tripled, said Jody Kent Lavy, director of the Campaign for the Fair Sentencing of Youth.
The debate, like many others in criminal justice reform, is hard to separate from race; advocates say the minors who have been sentenced to life without parole are 10 times as likely to be black than white. "There's clearly been a shift and a recognition that young people need to be held accountable in more age-appropriate ways, and we've really gone too far in our approach to youth sentencing," Lavy said....
In Utah, the debate to eliminate the practice from the books went pretty smoothly, said state Rep. Lowry Snow (R), who sponsored the bill. "I didn't have to twist a lot of arms," he said.
Snow and advocates say the arguments speak for themselves; they cite research that adolescents' brains are still growing and, thus, are not as skilled as adults' in controlling impulses or thinking through long-term actions. "They're not the same people when they're 16, 17, 18 than they are when they're 40 and 50 years old," he said.
Another argument that seems to resonate among more conservative, religious lawmakers is one of redemption. "Utah is very prone to a recognition that there can be redemption and people can be given a second chance," Snow said....
At its basic level, the debate over whether to keep or get rid of life sentences without parole mirrors the debate over the death penalty: What's the most appropriate way to punish someone for a heinous crime? In that sense, there is still opposition to the idea of banning life-without-parole sentences for minors.
Some crimes "are so heinous, so violent, so destructive … that maybe in rare cases they should receive the sentence of life without parole," state Rep. Merrill Nelson (R) said on the floor of the Utah statehouse after he spoke with the father of a teen who was killed by another teen. "Why should we take that discretion away from the judge?"
A victims advocacy group, the National Organization of Victims of Juvenile Murderers, says a ban is out of step for several reasons: The potentially un-ending parole process is often "torture" for a victim's family, and while it doesn't advocate for any specific sentence, it does not see why the life-without-parole option should be taken off the table....
And success, as described here, is relative. More than half of U.S. states still allow the sentence, after all. But given the broader political context in which these bans are coming, criminal justice reform advocates will take what they can get.
"Racial Disparities in Youth Commitments and Arrests"
The title of this post is the title of this notable new policy brief from The Sentencing Project with lots notable data, which gets started this way:
Between 2003 and 2013 (the most recent data available), the rate of youth committed to juvenile facilities after an adjudication of delinquency fell by 47 percent Every state witnessed a drop in its commitment rate, including 19 states where the commitment rates fell by more than half. Despite this remarkable achievement, the racial disparities endemic to the juvenile justice system did not improve over these same 10 years. Youth of color remain far more likely to be committed than white youth. Between 2003 and 2013, the racial gap between black and white youth in secure commitment increased by 15%.
Both white youth and youth of color attained substantially lower commitment rates over these 10 years. For white juveniles, the rate fell by 51 percent (140 to 69 per 100,000); for black juveniles, it fell 43 percent (519 to 294 per 100,000). The combined effect was to increase the commitment disparity over the decade. The commitment rate for Hispanic juveniles fell by 52 percent (230 to 111), and the commitment rate for American Indian juveniles by 28 percent (354 to 254).
As of 2013, black juveniles were more than four times as likely to be committed as white juveniles, Americans Indian juveniles were more than three times as likely, and Hispanic juveniles were 61 percent more likely. Another measurement of disproportionate minority confinement is to compare the committed population to the population of American youth.
Slightly more than 16 percent of American youth are African American. Between 2003 and 2013, the percentage of committed juveniles who were African American grew from 38 percent to 40 percent. Roughly 56 percent of all American youth are white (non-Hispanic). Between 2003 and 2013, the percent of committed juveniles who were white fell from 39 percent to 32 percent.
Thursday, March 31, 2016
Extraordinany (and extraordinarily timely) issue of the Annals of the American Academy of Political and Social Science
The March 2016 issue of The ANNALS of the American Academy of Political and Social Science has an extraordinary collections of essays by an extraordinary array of legal scholars and sociologists and criminologists under the issue title "The Great Experiment: Realigning Criminal Justice in California and Beyond." Though many of the articles focus on California's unique and uniquely important recent criminal justice reforms experiences, all folks interested in and concerned about sentencing and corrections reform in the United States ought to find the time to read most or all of the articles in this collection.
The special editors of this issue, Charis Kubrin and Carroll Seron, authored this introduction to the collection under the title "The Prospects and Perils of Ending Mass Incarceration in the United States." Here is an excerpt from that introduction:
This volume of The ANNALS represents the first effort by scholars to systematically and scientifically analyze what Joan Petersilia (2012) has described as “the biggest criminal justice experiment ever conducted in America.” She went on to note that “most people don’t even realize it’s happening,” a point underscored by Franklin Zimring in the volume’s concluding remarks. At a historic moment in which imprisonment patterns across the U.S. are shifting for the first time in nearly 40 years, the California case is ripe for in-depth examination. The political landscape around decarceration is also shifting in ways that do not fit the debate of the last 40 years. The initiative behind the prison buildup was largely an offshoot of more conservative, law and order political agendas, but as the nation debates a move toward prison downsizing and decarceration, there is support from both the Left and the Right for this fundamental shift in policy (Aviram, this volume; Beckett et al., this volume) — unusual bedfellows at a time of political polarization. While this political convergence will no doubt be contested, as Joan Petersilia emphasizes in the volume’s preface, it nonetheless represents an important moment to have a systematic, rigorous, and scientific evaluation of California’s experiment and its implications on hand for policy-makers.
Wednesday, March 30, 2016
Harvard Law School launches "Fair Punishment Project"
While I was on the road yesterday, I received an email with some exciting news from my law school alma mater. Here is the text of the email announcement:
We'd like to introduce you to a brand new initiative brought to you by Harvard Law School's Charles Hamilton Houston for Race & Justice and its Criminal Justice Institute called the Fair Punishment Project (FPP). The Fair Punishment Project will use legal research and educational initiatives to ensure that the U.S. justice system is fair and accountable. The Project will work to highlight the gross injustices resulting from prosecutorial misconduct, ineffective defense lawyers, and racial bias and exclusion. We are dedicated to illuminating the laws that result in excessive punishment, especially the death penalty and juvenile life without parole.
We'll be releasing our first report in the next day or two, so keep an eye out -- you don't want to miss it. Future reports will highlight the troubling attributes that outlier death penalty counties have in common, examine America's top 10 deadliest prosecutors, and look deeply into counties that are plagued by prosecutorial misconduct.
The Charles Hamilton Houston Institute was launched in 2005 by Harvard Law School professor Charles J. Ogletree Jr. The Institute serves as a critical bridge between scholarship, law, policy, and practice to solve the challenges of a multi-racial society. The Criminal Justice Institute trains Harvard Law School students who will be the next generation of ethical, effective, and passionate defense lawyers. Led by Ronald S. Sullivan Jr., the Institute leads research of the criminal and juvenile justice systems in order to affect local and national reform.
The Fair Punishment Project will strive to be a valuable resource for anyone and everyone who is interested in bringing about a fair and equitable justice system. We hope you will visit our website at www.fairpunishment.org to learn more about our work, and that you will join us as we address one of the most critical issues of our time.
And here are titles and links to some of the notable sentencing-related content already up at the FPP website:
- Life Without Parole – From Bad Lawyers to No Lawyer At All
- Report Finds Juvenile LWOP Sentences Concentrated in a Few Counties, Disproportionately Impact Youth of Color
"Sentencing Reductions versus Sentencing Equality"
The title of this post is the title of this interesting and timely new paper by Susan Klein now available via SSRN. Here is the abstract:
The Sentencing Reform Act of 1984 was enacted by an odd conglomeration of Democrat and Republican who agreed that federal sentences should be based upon relevant offender and offense characteristics, not including such things as race, gender, geography, ideological bent of the sentencing judge, or citizenship. That goal has become lost and less relevant in today’s world of draconian and mandatory minimum sentencing, especially in the drug trafficking, child pornography, and fraud arenas. Mass incarceration has run rampant. Sentences are so out-of-whack with most basic principles justice that the fact that female offenders may receive slightly lower prison terms than their male counterparts should no longer be the very top of our reform agenda.
This is not to suggest that scholars and the public shouldn’t be concerned with sentencing disparity, especially based on race. However, the disparity between federal and state sentences is so much wider (and occurs so much more frequently) than the disparity among similarly-situated federal offenders that the latter appears less of a significant issue in absolute terms. Whatever reform capital policy-makers and scholars retain should be poured into championing alternatives to criminalization (such as fines, drug treatment, and apologies) and alternatives to long prison terms (such as probation and parole). Reforms must focus on discovering what offenses we could safely decriminalize, and what programs are effective in keeping individuals out of prison in the first place (or in curbing recidivism once incarceration has occurred).
If giving judges more discretion at sentencing means lower average prison terms, this will probably rebound to the benefit of our minority populations as a whole, even if it might mean that in particular cases minority defendants receive slightly higher sentences for the same conduct as their white counterparts. Likewise, if sentencing, parole, and probation decisions based upon “risk assessment” leads to lower overall incarceration rates, we may have to tolerate this even if it generates higher risk numbers for certain minority offenders. Critics of every substantive criminal-law and sentencing reform proposal need to remember the big picture, and not lose sight of the forest of mass incarceration for the trees of unwarranted sentencing disparity.
Monday, March 28, 2016
Call for Papers for Symposium on "Private Prisons: The Corporatization of Criminal Justice and the New Marketplace for Crime"
I am very pleased to be able to post a timely call for papers sent my way by a former student who is now in law teaching and working hard in the arena of criminal justice reform and sentencing. Here are the event/paper details sent my way:
Indiana Tech Law School will dedicate its 2016 Annual Symposium to the pressing issue of the prison industrial complex, and specifically the role of private prisons in mass incarceration. The symposium, titled Private Prisons: The Corporatization of Criminal Justice and the New Marketplace for Crime, will seek to contextualize the criminal justice system against the backdrop of the for-profit prison system, particularly the system’s reliance upon high rates of incarceration to sustain its business model. The symposium seeks to address a broad range of questions, including how the profit-motive of private prisons influences the length and severity of sentences and availability of parole, how private prisons and mass incarceration disproportionately impact communities of color, and how private prisons contribute to social inequality and oppression.
The United States imprisons more people, both per capita and in absolute terms, than any other nation in the world. Since the 1980’s, the government has increasingly turned to private corporations to build, maintain, and operate prisons to house the burgeoning prison population. This unprecedented level of incarceration by for-profit corporations has important implications for law and policy, not only in the context of criminal justice but also in immigration detainment and deportation matters. Currently, forprofit prisons detain 6% of state prisoners, 16% of federal prisoners, and nearly half of all immigrants detained for documentation status.
The private prison system raises issues that touch upon criminal sentencing, immigration policy, the legitimacy of delegating carceral policy to the private sector, and fundamental liberty guarantees under the Fourteenth Amendment. We seek papers that will contribute to the important dialogue about the legal system’s responsibility for both producing and correcting these outcomes. Papers accepted for the symposium will be published in a special symposium edition of the Indiana Tech Law Review.
Workshop Contacts: andré douglas pond cummings (ADCummings @ indianatech.edu), Adam Lamparello (AXLamparello @ indianatech.edu) and Yvonne Lindgren (YFLindgren @ indianatech.edu)
Submission procedure: Email a proposal of up to 500 words as a Word or PDF document by May 1, 2016. Please include your name, institution, and contact information in the proposal and submit it via email to Lydia LaMont (LGLaMont@indianatech.edu) with the subject line “Symposium Call for Papers.” Decisions will be made by June 1st and working paper drafts are due by October 15th.
Symposium Details: The Symposium will be held at Indiana Tech Law School in Fort Wayne, Indiana on November 11th. The program will consist of panel discussions and a keynote address.
Friday, March 25, 2016
"Poor white kids are less likely to go to prison than rich black kids"
The title of this post is the headline of this Wonkblog posting via the Washington Post discussing some recent empirical research on sentencing outcomes appearing in the latest issue of the journal Race & Social Problems. Here is the post's discussion of the research:
It's a fact that people of color are worse off than white Americans in all kinds of ways, but there is little agreement on why. Some see those disparities as a consequence of racial discrimination in schools, the courts and the workplace, both in the past and present. Others argue that economic inequalities are really the cause, and that public policy should help the poor no matter their race or ethnicity. When it comes to affirmative action in college admissions, for example, many say that children from poor, white families should receive preferential treatment, as well.
In some ways, though, discrimination against people of color is more complicated and fundamental than economic inequality. A stark new finding epitomizes that reality: In recent decades, rich black kids have been more likely to go to prison than poor white kids. "Race trumps class, at least when it comes to incarceration," said Darrick Hamilton of the New School, one of the researchers who produced the study.
He and his colleagues, Khaing Zaw and William Darity of Duke University, examined data from the National Longitudinal Survey of Youth, a national study that began in 1979 and followed a group of young people into adulthood and middle age. The participants were asked about their assets and debts, and interviewers also noted their type of residence, including whether they were in a jail or prison.
The researchers grouped participants in the survey by their race and their household wealth as of 1985 and then looked back through the data to see how many people in each group ultimately went to prison. Participants who were briefly locked up between interviews might not be included in their calculations of the share who were eventually incarcerated.
About 2.7 percent of the poorest white young people — those whose household wealth was in the poorest 10th of the distribution in 1985, when they were between 20 and 28 years old — ultimately went to prison. In the next 10th, 3.1 percent ultimately went to prison.
The households of young people in both of these groups had more debts than assets. In other words, their wealth was negative. All the same, their chances of being imprisoned were far less than those of black youth from much more affluent circumstances. About 10 percent of affluent black youths in 1985 would eventually go to prison. Only the very wealthiest black youth — those whose household wealth in 1985 exceeded $69,000 in 2012 dollars — had a better chance of avoiding prison than the poorest white youth. Among black young people in this group, 2.4 percent were incarcerated.
Hispanic participants who were less affluent in 1985 were more likely to be eventually incarcerated than their white peers with similar wealth, but less likely than black participants....
It could be that the white participants in the study still had other advantages over their black peers, even if they had been incarcerated. Perhaps they went to better schools, or lived in areas where it was easier to find work. At the same time, another reason for the disparity between black and white wealth could be that employers make negative inferences about black workers' pasts, even those who have never been to prison....
In a way, untangling economic and racial inequalities is a chicken-and-egg problem. In criminal justice, though, you can't just explain away the disproportionate rates at which black and Hispanic youths end up in prison by pointing out that many people of color did not grow up with the same economic advantages as their white peers.
The full research article discussed here, which is titled "Race, Wealth and Incarceration: Results from the National Longitudinal Survey of Youth," can be accessed at this link.
Thursday, March 24, 2016
Pew develops new "punishment rate" metric to provide more nuanced perspective on state incarceration levels
Via email today I learned of this intriguing new report from the folks at Pew Trusts titled "The Punishment Rate: New metric evaluates prison use relative to reported crime." Here is the short data-heavy report starts and ends:
Researchers, policymakers, and the public rely on a variety of statistics to measure how society punishes crime. Among the most common is the imprisonment rate — the number of people in prison per 100,000 residents. This metric allows for comparisons of prison use over time and across jurisdictions and is widely seen as a proxy for punishment. States with high imprisonment rates, for example, are considered more punitive than those with low rates.
A more nuanced assessment of punishment than the ratio of inmates to residents is that of inmates to crime— what The Pew Charitable Trusts calls the “punishment rate.” This new metric gauges the size of the prison population relative to the frequency and severity of crime reported in each jurisdiction, putting the imprisonment rate in a broader context.
Using the punishment rate to examine the U.S. criminal justice system, Pew found that all states became more punitive from 1983 to 2013, even though they varied widely in the amount of punishment they imposed. The analysis also shows that the nation as a whole has become more punitive than the imprisonment rate alone indicates....
The long-term rise in U.S. imprisonment is a familiar story. Although the imprisonment rate is an essential tool in understanding correctional trends, it paints an incomplete picture of the nation’s and individual states’ punitiveness because it does not take crime rates into account. The punishment rate provides a more nuanced assessment by placing each jurisdiction’s imprisonment rate in the context of the severity and frequency of its crime.
Analysis of punishment rates over time and across jurisdictions makes clear that the nation has become more punitive. What’s more, many states punish crime significantly more—or less—than their imprisonment rates alone indicate. States with particularly high or low punishment rates and those that experienced significant increases in their punishment rates over time may benefit from identifying and examining the policy choices responsible for their rankings and trends.
Helpfully, the folks at The Marshall Project have this interesting piece discussing what the new Pew metric does and does not tell us. That piece is headlined "The Tricky Business of Measuring Crime and Punishment: Pew researchers release a new prison scorecard, but it ain’t perfect," and here are excerpts:
We’ve grown accustomed to a quantified world of ever more complicated data available at our fingertips, on everything from how we sleep and eat to how often left-handed pinch hitters hit ground rule doubles on rainy days. “The incredible databases of what we have for sports just blow away anything there is in criminal justice. It's kind of crazy,” said Adam Gelb, director of Pew’s Public Safety Performance Project, adding, “We can't answer some of the most basic questions about one of the most important functions of a society.”
Nearly five years ago, Gelb and Pew started by looking at recidivism — how often people released from prisons are arrested again for new offenses. But using recidivism alone to compare how states are doing at rehabilitating prisoners fell short. One state could have a lower recidivism rate simply because it tended to have more low risk offenders in its prisons. So then, Gelb said he began thinking about how to assess whether the “right” people are in prison, that is the serious, violent and repeat offenders most likely to commit new crimes.
Pew’s punishment rate focuses on the most serious felony offenses that lead to a year or more in state prison. The calculation divides each state’s imprisonment rate in a given year by the rate of crimes reported there, using the FBI’s Uniform Crime Reporting system. To account for some crimes being more serious and more likely to lead to longer prison sentences, Pew weights the annual crime rates by calculating the average time served for those crimes each year. After all of these calculations, Pew found that as America's imprisonment rate has gone up in the past three decades and as crime has dropped, the “punishment rate” rose by 165 percent.
While the methodology makes sense and is probably the best available considering the shortcomings of federal crime data, the punishment rate is not yet the magic metric. Unpacking the components of Pew’s punishment rate illustrates how tricky measuring criminal justice progress can be. The punishment rate depends on the number of crimes reported by the FBI. But the Uniform Crime Report, created in the 1920s, tracks only seven key crimes: murder, assault, rape, robbery, arson, burglary, larceny, motor vehicle theft. It excludes dozens of offenses — most notably drug crimes, which have been a major factor in the growth of prison populations. Pew’s report readily acknowledges that the Uniform Crime Report omits crimes for which roughly one-fifth of state prisoners are serving time.
“What that means is not to say that drug trafficking is not a serious crime, just that it's not reported and tracked in a way that you can support adding it to this formula,” Gelb said. “It does mean that — other things being equal — a state that has a lot of drug enforcement activity and stiff sentencing for drug offenses will have a higher punishment rate.”
The other trouble with the punishment rate is in the lag between crime and judgment. Pew is comparing the crime rate each year to the current prison population at that moment. It doesn't account for the people being sentenced each year or the prison intakes. It also doesn't look at what crimes those in prison were convicted of. So there is an inherent lag between when crimes happen and when someone might go to prison for them. Despite plummeting crime since the 1990s, the growth in the punishment rate didn’t overtake the rise in imprisonment until 2011. That may be partially explained by the gap in time between crime and incarceration, though Gelb contends that effect is ameliorated by calculating rolling averages for offense severity (but not the crimes themselves or the imprisonment rate). He said the adjustment is meant to be a barometer of the seriousness of crimes in a year rather than a “fine-tuned calculation.” But that lack of precision could undercut Pew’s implicit argument that in some states we are “punishing for punishment’s sake.”
I find especially important and notable Gelb's astute comment that the "incredible databases of what we have for sports just blow away anything there is in criminal justice." Especially as I am starting to prepare for my upcoming fantasy baseball draft, it is more than a bit disconcerting that I can easily find dozens of statistical projections for the Cleveland Indians' battery but no on-line sources to help predict how many batteries might be committed in Cleveland.
Tuesday, March 22, 2016
"Looking Forward: A Comprehensive Plan for Criminal Justice Reform in Ohio"
The title of this post is the title of this notable new report produced by the ACLU of Ohio and the Ohio Justice and Policy Center. Here is the report's introduction:
Ohio has a mass incarceration crisis. There are currently 50,600 Ohioans in prisons designed to hold 38,600; that’s at least 12,000 too many of our neighbors and fellow citizens in cages. And beyond these inhumane numbers, there is a fundamental misuse of criminal-justice tools to attack social and health problems. We have responded to poverty, drug and alcohol addiction, mental illness, or an overall lack of opportunities with punishment.
Instead of treating people with mental illness, we criminalize them and block access to the care they so desperately need. We allow low-income people to be victimized by steep fines and costs, with many languishing in local jails because they cannot afford to pay a court fine or make bond. People who have a small amount of drugs are not given treatment for their addiction, but instead offered prison sentences and a felony conviction. Those who try to re-enter society have the door slammed shut by mounting collateral sanctions that prevent them from getting a job, housing, education, reliable transportation, and more.
The result is a system that is costing our state in every sense of the word. Ohio has the sixth largest prison population in the nation. In the last decade, the prison population has increased 12 percent despite the fact that the violent crime rate has reached a 30-year low. In 2014, taxpayers spent over $1.7 billion to operate the state prison system alone. Every dollar spent on prisons is a dollar not spent on crime-survivor services, schools, addiction treatment, mental healthcare and other services that enrich our communities and that keep people out of the criminal justice system in the first place. Nowhere are the negative effects of mass incarceration felt more than in communities of color. African Americans account for nearly half the state’s prison population but only a little more than a tenth of the total state population. Mass incarceration has decimated neighborhoods, leaving many communities of color with countless people unable to find employment and cycling in and out of the justice system.
State leaders have begun to recognize that mass incarceration is simply not working and must be dismantled. In 2011, a bi-partisan group of legislators, along with advocates and activists, passed House Bill 86 (HB 86). This legislation was part of the federal Justice Reinvestment Initiative that sought to reform state criminal justice systems and provide resources for strategies that depopulate prisons and jails. While HB 86 promised modest reforms, it was never fully implemented or funded, and despite a short plateau, Ohio’s prison population is growing.
The time for modest, incremental steps is over. We must challenge ourselves to imagine a fundamentally different justice system that is truly just, and not merely focused on punishment. We must usher in an era of being smart on crime, not just tough on crime, where accountability does not mean punishment for punishment’s sake. We can create forms of accountability that restore the law-breaker to being a productive member of society while also offering more robust healing and restoration to crime victims.
Currently, the Ohio General Assembly has created a Criminal Justice Recodification Committee that is tasked with rewriting our criminal laws. Once again, state leaders have invited members of that committee to use this opportunity to change our justice system. However, the problem does not begin or end simply with the contents of Ohio’s criminal code, nor does the solution reside solely with the Committee. Their work represents a meaningful opportunity to bring about substantive reform — that opportunity must not be squandered on narrow, technical edits to statutory language. Now is the chance for the legislature to precisely identify and fundamentally change the policies that drive excessive incarceration. It is with this approach that we can perhaps finally begin looking forward to a new justice system that makes our communities stronger and lifts up the people of Ohio, rather than keeping them down.
Thursday, March 17, 2016
Thoughtful nuanced comments from George Will on modern crime and punishment
The Washington Post has published this astute new commentary by Geoge Will under the headline "Sentencing reform alone won’t fix crime and punishment in America." I recommend the full piece, and here is how it starts and ends:
Sen. John Cornyn recalls visiting a Texas prison where some inmates taking shop classes could not read tape measures. Cornyn, who was previously a district court judge and Texas Supreme Court justice, knows that prisons are trying to teach literacy and vocations, trying to cope with the mental illnesses of many inmates and trying to take prophylactic measures to prevent drug-related recidivism by people imprisoned for drug offenses. “The criminal-justice system,” he says, “has become by default a social services provider.”
It is not, however, equipped to perform so many functions. Cornyn, a Republican, is part of a bipartisan congressional group negotiating sentencing reform, one of many needed repairs of the criminal-justice system. What justice requires, frugality encourages: Too many people are in prison for too long, and too often, at a financial cost disproportionate to the enhancement of public safety....
Old theories about the causes of crime need to be rethought. During the Great Depression, unemployment soared to 25 percent, yet in many cities crime fell. Demographic factors? Crime rates often vary with the size of society’s cohort of young males: Crime declined considerably during World War II not just, or even primarily, because unemployment was negligible but also because so many young males were in military discipline.
In 2010, one year after the Great Recession’s jobs destruction doubled the unemployment rate, the property crime rate fell and violent crime reached a 40-year low. Current high incarceration rates had something to do with that. But how much? James Q. Wilson, the most accomplished social scientist since World War II, accepted the estimate that increased incarceration explains “one-quarter or more of the crime decline.” Wilson also suggested an environmental factor: “For decades, doctors have known that children with lots of lead in their blood are much more likely to be aggressive, violent and delinquent.” Since the 1970s, lead has been removed from gasoline and paint for new homes, and “the amount of lead in Americans’ blood fell by four-fifths between 1975 and 1991.” Wilson cited a study that ascribed more than half the 1990s’ decline in crime to the reduction of gasoline lead. Clearly, sentencing reform is just one piece of a complex policy puzzle.
Wednesday, March 16, 2016
"The Emerging Eighth Amendment Consensus Against Life Without Parole Sentences for Nonviolent Offenses"
The title of this post is the title of this article authored by Bidish Sarma and Sophie Cull recently posted on SSRN. Here is the abstract:
As the nation moves away from the policies that built a criminal justice system bent on mass incarceration, it is an appropriate time to reassess a sentencing regime that has doomed thousands of individuals convicted of nonviolent offenses to die in prison. Over the last thirty years, those policies have resulted in more than 3,000 offenders across the country receiving life sentences without the possibility of parole when they were convicted of a nonviolent crime. While it seems clear to many today that this harsh punishment is inappropriate for offenses that involved no physical harm to other people, the individuals serving these sentences continue to face life and death in prison. The Eighth Amendment offers these offenders an opportunity to demonstrate the unconstitutionality of their punishment to the Supreme Court — the institution in the best position to redress these excessive sentences of a bygone era.
This Article analyzes the claim that there is a national consensus against life without parole sentences for individuals convicted of non-violent offenses. First, it defines the problem, exploring how and why some offenders received life without parole sentences for nonviolent crime. This entails a look at the historical development of a series of harsh sentencing policies that made nonviolent offenses punishable by life without the possibility of parole. The historical developments are then traced through to current times to explain the seismic shift in how leaders in all three branches of government approach punishing low-level and nonviolent crimes.
This Article situates the punishment in the Eighth Amendment context. How have the Supreme Court's previous Eighth Amendment rulings framed the relevant constitutional questions? And how can a change in the way the Court considers the link between the nature of the offense and the challenged punishment create new possibilities? This Article explores how treating individuals sentenced to life without parole for nonviolent offenses as a discrete category based on the nature of the crimes can alter the Eighth Amendment framework that the Court will use to determine the punishment's constitutionality. The unfavorable "gross disproportionality" cases that have previously been considered by the Court do not need to govern the claim and, therefore, do not foreclose the possibility that the Constitution itself prohibits these sentences.
After exploring how to understand the constitutional claim in a way that brings the Supreme Court's categorical approach to bear (rather than the gross disproportionality approach), this Article assesses the factors the Court considers in its consensus-based categorical test. It sets out, and then evaluates, the various indicators of consensus upon which the Court relies: the number of jurisdictions that legislatively authorize a punishment; the number of sentences actually imposed; and the degree of geographic isolation. It also evaluates the various considerations that assist the Court in making an independent judgment of the punishment. Ultimately, based on binding Eighth Amendment precedent, sufficient evidence is available now to enable the Court to strike down life without parole sentences for nonviolent offenses. In other words, there is an emerging consensus that the Court should recognize.
Tuesday, March 15, 2016
Interesting account of effort to take sentencing reform directly to voters in Oklahoma
This article from The Frontier provides an interesting account of sentencing reform efforts in Oklahoma and why supporters of reform are turning to direct democracy to move forward. The piece is headlined "After several stalled attempts, Oklahoma group taking prison reforms to vote of the people," and here are excerpts:
Kris Steele stepped up to the microphone in a packed room at Tulsa’s Women in Recovery office and declared this time, in 2016, Oklahoma was going to break through the “political gridlock” by taking criminal justice reform to a vote of the people....
For more than five years, Steele, a former speaker of the state House of Representatives, has been talking about the importance of criminal justice reform for Oklahoma’s fiscal bottom line, its citizens and children. Now, facing a $1.3 billion budget crisis and prisons packed above 120 percent of capacity, it appears Oklahoma is finally ready to listen.
Steele, along with a bipartisan coalition of state power players, is hoping Oklahoma voters will accomplish what elected officials did not in several prior attempts: reducing the state’s staggering prison population. They hope to redirect some of the savings toward addressing root causes of crime, shifting the state toward a corrections system that focuses on rehabilitation, not solely punishment.
As chairman of Oklahomans for Criminal Justice Reform, Steele is leading efforts to collect more than 65,000 petition signatures that would allow two state questions to be added to November’s ballot. State question 780 would reclassify certain low-level offenses as misdemeanors instead of felonies, such as drug possession and smaller property crimes. The idea is that reclassification would reduce Oklahoma’s prison population and trigger cost savings, badly needed in a state facing a budget crisis where leaders are considering trimming school days to make ends meet.
State question 781 would then invest those prison cost savings in programs designed to address the root causes of crime — including addiction, mental health issues and poverty — and programs that provide job training and education to offenders as they leave prison....
Other states, including Texas and North Carolina, have used their own Justice Reinvestment Initiatives to realize significant savings on corrections spending. North Carolina’s reforms, passed in 2011, have helped the state close nine prisons and officials expect to save $560 million in averted costs and cumulative savings by 2017, according to the Council on State Governments. Those savings have also made it possible for North Carolina to re-invest nearly $4 million into community-based treatment programs, the council reported.
After Texas officials implemented sentencing reforms in 2007, including probation, drug treatment, pre-trial diversion programs and intermediate sanction facilities, cost savings from the measures allowed Texas to close three existing prisons and scrap plans to build three new ones.
As Oklahoma has watched other states — including Texas — implement those reforms, the political climate surrounding criminal justice reform here has changed, Steele told The Frontier in an interview. Steele, who left office due to term limits, became the executive director of The Education and Employment Ministry in Oklahoma City.
“When we first started having this conversation in 2009 to 2011, our prisons were at 99 percent capacity. Now, they’re over 122 percent capacity,” he said. “The fact that the problem has not gone away — in fact, it’s gotten worse — causes us to be more willing to have this conversation.”...
“I think the public is ready to have that conversation. I think the public is way ahead of the legislature on this issue. There’s actually a pretty significant disconnect between the voters and elected officials on this issue.” Hence taking the issue to the voters through the two state questions....
Now several bills in the legislature aim to achieve similar goals of the two state questions backed by Oklahomans for Criminal Justice reform. But Steele’s group wants to put the decision directly in the hands of voters. And he’s got the backing of organizations like Right on Crime and the ACLU of Oklahoma.
“It’s a little more work, but in the end we think it’s going to be well worth it,” he said. “The people of Oklahoma ought to be able to have a direct say so in this issue.” It is the citizens who pay the $500 million each year to fund Oklahoma’s prison system, after all.
The Rev. Ray Owens, pastor of Tulsa’s Metropolitan Baptist Church, was one who offered an “amen” after Steele and Neal spoke to the crowd at Women in Recovery last week. “Instead of investing more money in prisons, I believe it’s time for us to invest more in our people,” Owens said.
Saturday, March 12, 2016
Notable example of "prison industrial complex" using "phony-baloney numbers” to grow or protect its budget
Bill Otis here at Crime & Consequences flagged this interesting local article from Indiana headlined "Prison officials say lighter sentences aren't saving money." The article discusses a report issued by the Indiana Department of Correction asserting that "costs have more than tripled since it began diverting low-level offenders out of state prisons and back into their communities" as a result of a sentencing reform law enacted in 2014. Bill seems to think this article reveals that sentencing reforms do not deliver on promised cost savings, but a read of the full article (and not just the parts highlighted by Bill) reveals that some funny math is behind the latest cost claims now coming from the Indiana DOC:
Senate Judiciary Chairman Brent Steele, R-Bedford, calls it “ridiculous” and says the report contains “phony-baloney numbers.”
Lawmakers who pushed to lower penalties for drug-related crimes, such as drug possession and theft, vowed to return anticipated savings from prison costs to communities for treatment programs, community corrections and local lock-ups. But, according to the department's report, there's no money to send. This despite a reduction in the prison population of more than 5,000 inmates – a 17 percent drop - since the law went into effect in July 2014....
Corrections officials say the new law will cost an additional $400,000 in the first six months of this year - for jail costs alone. That expense is expected to climb before the year’s end. That’s because the state spends about $35 a day to house a convicted, low-level offender in a county jail, according to the Correction Department report. The department claims it can house the same inmate in a prison for just under $10 a day.
Steele and other lawmakers who were deeply involved in crafting the sentencing reform law are irked by those claims. Two years ago, when Correction Department officials asked lawmakers for money, they reported it cost about $60 a day to house a state prisoner.
A year ago, prison officials said they needed an additional $51 million to build a new state prison. Steele and others rejected the proposal, predicting that the state would be able to close a prison – and save millions – as sentencing reform took hold. Steele said the department now is refusing to cooperate with the intent of the sentencing reform law.
Corrections officials don’t see it that way. The department's legislative director, Jon Ferguson, said the $10-a-day rate used in the report is a “marginal per diem” that doesn’t include the fixed, operational costs associated with running big prisons. And the number of those prison facilities the state operates hasn’t gone down since the sentencing reform law was put into place.
Promised savings from sentencing reform was key to getting it passed and to winning support from sheriffs, judges and local officials who feared it presented another unfunded mandate by the state. The Legislature set aside an initial $60 million for communities to offset initial costs. But lawmakers assured critics that the sentencing reform would eventually pay for itself.
House Judiciary Committee Chairman Greg Steuerwald, R-Avon, who helped craft the sentencing reform law with Steele, also questioned the validity of the Corrections Department's report. But, he noted, “We’re in a transition year.” “I expect to see much different numbers by next year," he said.
Thursday, March 10, 2016
Rep Lamar Smith makes case against federal sentencing reform by questioning success of Texas reforms
One recurring theme of many advocates for federal sentencing reform is that state-level reforms, lead notably by Texas, have been successful at reducing incarceration levels without seeing an increase in crime. But at the end of this new Washington Times commentary, headlined "How weak prison terms endanger the innocent: Mandatory minimums keep the guilty behind bars to pay their debt to society," US House Representative Lamar Smith from Texas questions whether Texas reforms have truly been effective. Here are some notable excerpts from the piece:
Congress should be wary of reducing federal prison sentences. Unfortunately, much of the discussion on sentencing laws has focused on the criminals. What about the victims of their crimes? What about the dangers of putting these offenders back out on the streets where many prey again on law-abiding citizens?
The lives and property of innocent Americans are at stake. Past experience should persuade us not to weaken penalties, which could lead to thousands of dangerous criminals being released into our communities....
Supporters of lower prison sentences also argue that judges need more discretion. They say that a one-size-fits-all penalty does not allow for consideration of mitigating factors, which might be necessary to determine a fair sentence.
But prior experience with judicial discretion in sentencing counters this claim. It is exactly the problem of too much discretion in the hands of activist judges that fueled the decades-long crime wave that preceded mandatory minimum sentences. Furthermore, judicial discretion led to widespread discrepancies in sentences, even when the circumstances were similar.
The minimum sentencing structure ensures that judges apply a uniform penalty based on the crime, not on the judge’s subjective opinion. Criminals receive equal punishment for equal crimes. And the removal of hardened criminals from our streets for longer periods of time helps make our neighborhoods safer....
In my home state of Texas, new policies sought to reduce incarceration time and focus resources on treatment and post-release supervision. Yet almost one-quarter of inmates released have been rearrested and sent back to prison within three years. Early release programs don’t appear to be working.
Mandatory minimums help keep these individuals behind bars where they belong. That’s one explanation for why crime rates remain down. The purpose of criminal law is to punish bad behavior, deter criminal acts and protect the American people. Releasing prisoners too soon could condemn many Americans to becoming victims of violence. This can be avoided if prisoners are not released before their sentences have been served.