Friday, August 05, 2016
"Behind the Olympics: Brazil's Dirty Incarceration Secret"
I thought this Ozy article, which has the headline that I am using as a post title, woud make a fiting and timely posting in light of tonight's Opening Ceremonies. Here are excerpts:
“Brazil’s prisons are illegal, and if I wanted to, I could set thousands of prisoners free,” Luis Carlos Valois declares. It is both a comment on the power of judges in Brazil to interpret the law at will, and an insight into Valois’ rebelliousness. Seated behind his huge wooden desk, with an enormous flag of Brazil posted nearby, he cuts an imposing figure. But his shaved head, muscles and tattoos make Valois resemble the Brazilian jujitsu champion he was in 1995 more than an establishment man.
OK, he concedes, he would end up behind bars himself if he really unleashed thousands of prisoners into the streets. But he’s serious about using the system to do just that. His work agitating for better prison conditions and offering lenient sentences for petty drug offenses has earned him at least one death threat and a flurry of bad press. Under Brazilian and international law, prisons in Brazil are supposed to provide inmates access to healthcare, individual cells and protection from death threats. In reality, however, prisons in Manaus are two to three times more crowded than they should be, Valois says, with scores of inmates sharing the same cell. Access to basic healthcare was described as “inadequate” in a 2014 Human Rights Watch report. Inmates sleep in hammocks or in corridors, with cockroaches and rats scuttling past. A study in Rio de Janeiro last year found 54 percent of those in pretrial detention may be innocent.
The conditions recall America’s prison system, overcrowded and rife with drug offenders. Brazil trails only the U.S., China and Russia in size of prison populations, according to Human Rights Watch. The homicide rate among the prison population — totaling half a million — reaches 150 for every 100,000, says Ilona Szabó of think tank Igarapé Institute. Additional terrifying stats: More than half of prisoners are 18 to 29 years old, many of whom are incarcerated for carrying small amounts of drugs. Those young men often remain in prison for five to 15 years. In rural locales, men and women sometimes share cells. Oh, and race: “It seems like they lock up more poor and Black people every time,” Valois says with a sigh. “Many are more afraid of someone who has stolen a cellphone than a politician who has stolen millions from the people.” (This in a nation embroiled in its own debates over the 2,000-plus people, many of them Black, killed by police in 2013, according to the Brazilian Public Security Forum.)...
Meanwhile, Brazil has increased its prison population by 74 percent between 2005 and 2012, according to the UNDP; the charitable explanation of the hard-on-crime stance is chalked up to a society fed up with violent crime and the increasing power and presence of drug gangs across Brazil. A “bullet bench” of mainly ex-military or law enforcement officers is busy whipping up popular hard-line laws lowering the age of criminal responsibility. Yet Valois drives a car that isn’t bulletproof, letting state-funded security men care for his two children instead. He is best seen as local cartoonist Jack Cartoon depicted him: with a gavel in one hand and a bunch of flowers in the other — a pacifist at heart.
Thursday, July 28, 2016
US Sentencing Commission releases big new report urging reform of career offender enhancements
As detailed in this official press release, the US Sentencing Commission today released a big new report (running over 100 pages!) under the title "Report to the Congress: Career Offender Sentencing Enhancements." Here is how the press release summarizes this important new release from the USSC:
The United States Sentencing Commission (“Commission”) issued a Report to the Congress: Career Offender Sentencing Enhancements, analyzing career offenders’ prior criminal history, incarceration terms and recidivism rates.
Chief Judge Patti B. Saris, Chair of the Commission, stated, “The Commission’s research shows that there are important differences between violent career offenders and drug trafficking career offenders. Based on these findings, Congress should amend the statutory criteria such that career offender status would not be based solely on drug trafficking offenses.”
Currently, a defendant qualifies as a career offender if he or she: 1) is convicted of an offense that is either a crime of violence or a controlled substance offense; and 2) has at least two prior felony convictions. Career offenders face longer incarceration terms, receiving an average sentence of more than 12 years (147 months). As a result of these longer sentences, career offenders now account for more than 11 percent of the total federal prison population. Yet, career offenders are increasingly receiving sentences below the federal sentencing guideline range, often at the request of the government. The research also shows that, compared to “drug trafficking only” offenders, violent career offenders generally have a more serious and extensive criminal history, recidivate at a higher rate, and are more likely to commit another violent offense in the future. In fiscal year 2014, 45% of “drug trafficking only” offenders received sentences that were reduced at the government’s request.
In fiscal year 2014, nearly three-quarters (74.1%) of career offenders were convicted of a drug trafficking offense. Drug trafficking offenders often face higher statutory maximum penalties, including life imprisonment. These offenders were also more likely to receive a sentence below the federal sentencing guideline range.
Earlier this year, the Commission voted unanimously to amend the definition of “crime of violence” in the federal sentencing guidelines, with an effective date of August 1, 2016. Chair Saris added, “Based on the report’s findings and recommendations, Congress should adopt a new, single definition of ‘crime of violence’ that is consistent with the Commission’s revised approach.”
New Fair Punishment Project report laments frequent and persistent use of juve LWOP in one Michigan county
In this post earlier this year, I noted the new initiative emerging from Harvard Law School's Charles Hamilton Houston for Race & Justice and its Criminal Justice Institute called the Fair Punishment Project (FPP). And the first big project of the FPP was this interesting report highlighting the history of Philadelphia frequently using life without parole sentences for juvenile murderers. Now, as reported via this blog posting, FPP has another notabe report on this topic focused on another region another northern state. Here are the details (and links) via the start of the blog posting:
A new report [focused on Michigan juvenile sentencing realities] highlights Wayne County’s frequent use of juvenile life without parole (JLWOP) sentences, calling the county an “extreme outlier” in its use of the punishment. The report also criticizes D.A. Worthy’s decision, which was announced Friday, to again seek life sentences for at least one out of three individuals currently serving this sentence.
The report urges District Attorney Kym Worthy to adopt a new approach to dealing with juveniles in response to the U.S. Supreme Court’s recent ruling in Montgomery v. Louisiana, which determined that the court’s prior decision barring mandatory life without parole sentences for youth must be applied retroactively, and that the punishment is only appropriate in the rarest of cases where a juvenile is determined to be “irreparably corrupt.”
The report, Juvenile Life Without Parole in Wayne County: Time to Join the Growing National Consensus?, notes that Wayne County is responsible for the highest number of juvenile life without parole sentences in the country now that Philadelphia District Attorney Seth Williams has recently announced that he will not be seeking LWOP sentences for any of the individuals previously sentenced to JLWOP there.
Currently there are more than 150 individuals serving JLWOP in Wayne County. While Wayne County has just 18% of the statewide population, it has at least 40% of the JLWOP sentences in the state of Michigan. Most incredibly, African-Americans are 39% of Wayne County’s population, but more than 90% of the individuals serving juvenile life with parole sentences from the county are Black. D.A. Worthy’s office obtained 27 JLWOP sentences during her tenure.
Thursday, July 21, 2016
"An Overlooked Key to Reversing Mass Incarceration: Reforming the Law to Reduce Prosecutorial Power in Plea Bargaining"
The title of this post is the title of this paper recently posted to SSRN and authored by Cynthia Alkon. Here is the abstract:
The need to “do something” about mass incarceration is now widely recognized. When President Obama announced plans to reform federal criminal legislation, he focused on the need to change how we handle non-violent drug offenders and parole violators. Previously, former Attorney General Eric Holder announced policies to make federal prosecutors “smart on crime.” These changes reflect, as President Obama noted, the increasing bipartisan consensus on the need for reform and the need to reduce our incarceration rates. However, proposals about what to reform, such as President Obama’s, tend to focus on some parts of criminal sentencing and on prosecutorial behavior as stand-alone issues. These reform suggestions do not consider the fact that ninety-four to ninety-seven percent of criminal cases are resolved through plea bargains and how the use of this process influences incarceration rates. Prosecutors hold extraordinary power in the criminal justice system. They not only decide what cases get filed, they also decide what charges and enhancements are added, and whether there will be a plea offer. The structure of our criminal justice system, at both the state and federal level, strengthens prosecutorial power and create a plea bargaining environment with extreme power imbalances. Prosecutors use this power to put pressure on defendants to accept plea deals, which contribute to the high incarceration rates in the United States. Therefore, any reform intended to make a meaningful reduction in incarceration rates should recognize the power that prosecutors hold and include reform aimed at changing this underlying structure.
As is well documented, the United States has high incarceration rates and imprisons more people than any nation in the world. African American and Latino communities suffer even higher incarceration rates. Our incarceration rates increased dramatically in the 1980s and into the 1990s. Some commentators identify the “war on drugs” as a major contributor to increasing incarceration rates during this period. Others suggest that the increase is due to a number of factors including changes in criminal codes that increased potential penalties for crimes across the board, not only for drug crimes. One scholar, John F. Pfaff, concludes that the single biggest reason for increased incarceration rates since 1990 is not an increase in arrests, or harsher sentencing, or the drug war, but instead is an increase in the percentage of felony filings per arrest. Pfaff concludes that the reason there are more filings is because prosecutors are filing a higher percentage of cases and therefore prosecutors are the predominate reason for mass incarceration.
This article will begin by briefly describing how plea bargaining works and the often coercive atmosphere of plea bargaining that contributes to mass incarceration. This article will then discuss Pfaff’s conclusions, based on his empirical studies, that prosecutors are the key reason for mass incarceration. Building on Pfaff’s conclusions on the key role prosecutors play in mass incarceration, this article will discuss how the current structure of both state and federal codes reinforce prosecutorial power, particularly in the plea bargaining process. This article will then discuss two proposals for legislative reform that could decrease the coercive atmosphere of plea bargaining. First, this article will recommend revising how crimes are defined, reducing the number of crimes that can be charged as both misdemeanors and felonies and reducing some felonies to misdemeanors. Second, this article will recommend reducing potential punishment ranges by eliminating mandatory minimums for most crimes and for enhancements. Legislative change alone will not reverse mass incarceration, but targeted legislative reform could help to change the overly coercive atmosphere of plea bargaining. This effort can help to change the prosecutorial culture that surrounds plea bargaining and contribute to reducing incarceration rates.
Tuesday, July 19, 2016
Nearly four years(!?!) in federal prison for MLB scout who hacked into rival team's research and notes
As reported in this local article, headlined "Former Cardinals scouting director sentenced to 46 months for hacking Astros database," a notable defendant got a significant federal prison sentence for some illegal corportate espionage. Here are some of the details:
The former St. Louis Cardinals scouting director who admitted he hacked accounts of the Houston Astros to gain insight into their operations was sentenced Monday afternoon to 46 months in prison.
Chris Correa pleaded guilty in January to five counts of unauthorized access to a protected computer. As part of his plea, Correa admitted to using the accounts of three Astros employees to view scouting reports, amateur player evaluations, notes on trade discussions and proposed bonuses for draft picks. The information he accessed was given an estimated value of $1.7 million by the U.S. Attorney’s office.
Correa, 36, also admitted taking measures to conceal his identity. The sentence includes two years of supervised release and restitution payment of $279,038.65. He will remain free until he is to report to prison, in two to six weeks....
During his guilty plea six months ago, Correa contended he hacked into the Astros accounts to see if former Cardinals employees had taken proprietary data or statistical models to use in their new positions with the Astros. Correa told prosecutors he found evidence that it did occur, U.S. Attorney Kenneth Magidson told the Post-Dispatch at that time....
Giles Kibbe, general counsel for the Astros, said after the sentencing that Correa accessed the Houston team’s database 60 times on 35 different days. “I don’t know what he saw or thought he saw,” Kibbe said, adding that what was clear from listening to U.S. District Judge Lynn N. Hughes during the sentencing is this: “The Astros were victims in this case.”...
Houston and its general manager, Jeff Luhnow, who began his baseball career with the Cardinals more than a decade ago, have repeatedly denied that Luhnow or any other former Cardinals employees brought information to the Astros. “The Astros refute Mr. Correa’s statement that our database contained any information that was proprietary to the St. Louis Cardinals,” the team said in a statement in January. Along with the U.S. attorney’s investigation, in which no other member of the Cardinals’ organizations was charged, the team completed an internal investigation; its outcome was Correa’s dismissal a year ago....
Correa read a four-minute statement to the judge before Hughes handed down his sentence. “I behaved shamefully,” Correa said, in apologizing to the Astros. “The whole episode represents the worst thing I’ve ever done by far.”
As he continued reading, offering an apology to his family with the promise to “regain your trust,” Hughes stopped Correa, asking him to turn around and speak directly to family members attending the hearing. Correa did so, his voice breaking as he repeated his apology. Correa said that because of his actions, he lost his career and his house, and he will work with his wife to rebuild “a quiet life of integrity.”
Hughes chastised Correa several times for his actions, comparing them to middle-school behavior. The judge used as an example a teacher asking Correa if he threw the eraser to which Correa would justify the action by saying: “Bobby did, too!”
“I hope it didn’t work then. It’s not going to work now,” Hughes said. The judge likened Correa’s hacking actions to altering a check by adding extra zeroes “and wiping out someone’s bank account.” Hughes also disclosed in court that Correa had been using prescription drugs without a prescription since the hacking charges, and that he could also have been prosecuted for that crime.
Hughes noted that Correa had taken college classes in ethics, asking: “At any time did you think hacking the Astros’ computers and using other people’s passwords was ethical?”
“No, your honor,” Correa said. Correa left the courthouse without comment, climbing into the passenger seat of a white SUV that was quickly driven away....
As part of his plea in January, Correa admitted to illicitly accessing Houston’s database through three accounts from at least March 2013 to the end of June 2014. He began by accessing the email account of one Astros employee who used to work for the Cardinals, referred to in the documents as “Victim A.” Although never mentioned by name in the documents, two of the former employees being described are believed to be Luhnow and Sig Mejdal. Both were key architects in the early days of the Cardinals’ analytic departments, and both are now baseball operations execs in Houston.
Correa took advantage of the fact that “Victim A” had used a password for his Astros email that was similar to the one he used with the Cardinals. He had gained the password when “Victim A” turned in his Cardinals laptop before leaving the team. Correa was able to access the accounts of two other Houston employees and through them see information in a database nicknamed “Ground Control.” On March 24, 2013, Correa viewed an Excel file of every amateur player eligible for the draft as well as the Astros’ internal evaluations and the scouts’ proposed bonuses to offer the players. He also looked at the Astros’ evaluations of Cardinals’ prospects.
That June, during the draft, Correa entered Ground Control and filtered the Astros’ information on players not yet drafted. He also looked at specific pages for two players, neither of whom the Cardinals drafted.
During that visit he looked at Houston’s scouting information for three of the eight players the Cardinals’ selected the previous day in rounds three through 10. At baseball’s trade deadline, July 31, Correa peered into Houston’s notes on trade discussions. In March 2014, he again entered the database and looked at 118 pages of what court documents called “confidential information.”
Cardinals general manager John Mozeliak and other team officials have stated they did not know about the breaches until investigators alerted them in early 2015.
I have reprinted the details of this "hacker's crime" because I am struggling to see what aggravating factors justified a nearly four-year prison sentence for a white-collar offenders who would appear to present no obvious risk to public safety and who has admitted his misdeeds and seems to show genuine remorse for his computer crimes. I sumrise from the press description here that the the defendant's federal sentencing guidelines range was driven up significantly by the U.S. Attorney's determination that the "estimated value" of corporate information accessed here was $1.7 million. But the fact that the defendant was ordered to pay less than $300K in restitution suggest that the actual harm to the Cardinals was far less than the economic number that appears to have driven the defendant's sentence up so much under the applicable sentencing guidelines.
Because I have not done a careful study of lots of recent computer crime cases, I am not sufficiently informed about whether this particular defendant's crime was distinctly bad or whether his sentence is distinctly severe. But I do know that modern problems in the US with mass incarceration is aggravated when we now have persons who pose no threat to public safety and who commit crimes that seem to have a relatively small impact on a huge rich company getting sent away to federal prison for a really long period of time.
July 19, 2016 in Examples of "over-punishment", Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, White-collar sentencing | Permalink | Comments (30)
Monday, July 18, 2016
"Disabled Behind Bars: The Mass Incarceration of People With Disabilities in America’s Jails and Prisons"
The title of this post is the title of this notable new report from the Center for American Progress. Here is an excerpt from the report's introduction:
America’s four-decade-long experiment with mass incarceration and overcriminalization is widely recognized as a failure. We lock up a greater share of our citizens than any other developed nation, destroying lives and separating families at an annual cost of more than $80 billion. In addition, we do little to prepare individuals behind bars for their eventual release, yet are surprised when some two-thirds return to our jails and prisons.
The crushing impact of the criminal justice system’s failure is felt acutely in communities across the United States. Significant and growing research shows how certain populations — including communities of color; residents of high-poverty neighborhoods; and lesbian, gay, bisexual, and transgender, or LGBT, individuals — have been particularly hard hit. But rarely discussed is the impact of the criminal justice system on Americans with disabilities.
The past six decades have seen widespread closure of state mental hospitals and other institutional facilities that serve people with disabilities — a shift often referred to as deinstitutionalization. The number of Americans residing in such institutions dropped sharply from nearly 560,000 in 1955 to only about 70,000 in 1994. While widely regarded as a positive development, deinstitutionalization was not accompanied by the public investment necessary to ensure that community-based alternatives were made available. As a result, while people with disabilities — and particularly those with mental health conditions — were no longer living in large numbers in institutions, many began to be swept up into the criminal justice system, often due to minor infractions such as sleeping on the sidewalk. Indeed, federal and state jails and prisons are now home to three times as many people with mental health conditions as state mental hospitals.
People with disabilities are thus dramatically overrepresented in the nation’s prisons and jails today. According to the Bureau of Justice Statistics, people behind bars in state and federal prisons are nearly three times as likely to report having a disability as the nonincarcerated population, those in jails are more than four times as likely. Cognitive disabilities — such as Down syndrome, autism, dementia, intellectual disabilities, and learning disorders — are among the most commonly reported: Prison inmates are four times as likely and jail inmates more than six times as likely to report a cognitive disability than the general population. People with mental health conditions comprise a large proportion of those behind bars, as well. The Bureau of Justice Statistics reports that fully 1 in 5 prison inmates have a serious mental illness.
Mass incarceration of people with disabilities is unjust, unethical, and cruel. But it is also penny-wise and pound-foolish, as community-based treatment and prevention services cost far less than housing an individual behind bars. According to a 2014 study of Los Angeles County, the average cost of jailing an individual with serious mental illness exceeds $48,500 per year. By comparison, the price tag for providing Assertive Community Treatment, or ACT, and supportive housing — one of the most intensive, comprehensive, and successful intervention models in use today — amounts to less than $20,500 annually, just two-fifths the cost of jail.
Thursday, July 14, 2016
Alaska joins ever-growing list of "red states" enacting significant sentencing reforms
As reported in this local article, headlined "Alaska gov. signs bill to cut down on incarceration using data analytics," earlier this week the largest US state by land mass became the latest "red state" to enact significant data-driven sentencing reforms intended to reduce prison populations. Governor Bill Walker penned this op-ed in conjunction with his bill signing, which includes these notable passages highlighting the successes of reforms in other "red states":
The criminal justice reform bill makes a number of very positive changes. A 13-member criminal justice commission — comprised of judges, prosecutors and members of the law enforcement community — spent seven months participating in a rigorous, data-driven process that led to 21 recommendations.
Each recommendation was rooted in research, and most were modeled after successful policies in other states. Those recommendations became SB 91. The bill was vetted through more than 50 hearings in five legislative committees. It passed with two-thirds majorities in both the House and the Senate.
For the past decade, criminal justice policy has been developed without data or research. That needed to be changed. Senate Bill 91 is a reform effort aimed at maximizing the public safety return for each dollar spent.
Alaska has the highest per-capita rate of violent crime and one of the highest recidivism rates in the country. Rather than continue to spend more money on longer sentences that did not change criminal behavior or reduce crime, the Justice Reinvestment Initiative redirects some of those resources into proven strategies.
Senate Bill 91 reinvests $99 million over six years into crime-reduction programs, such as substance abuse treatment, re-entry services, pretrial supervision, violence prevention and victims’ services. Senate Bill 91 is expected to produce significant savings to the state by averting projected growth in the prison population and reducing the current prison population by 13 percent over the next decade. The reforms are estimated to save a total of $380 million ($211 million in direct net savings; $169 in savings from averted growth).
These reforms are working in other states:
• South Carolina has seen a 12 percent reduction in crime since reform was adopted in 2010.
• Kentucky has seen a 17 percent reduction in crime since adopting reform in 2011.
• South Dakota has seen an 8 percent reduction in crime since adopting reform in 2013.
• Texas stopped building more prisons and invested instead on programs proven to reduce recidivism. The state has now averted $3 billion in prison costs, and crime has declined 26 percent — the lowest since 1968.
All of these states reduced their prison populations and reinvested in crime-reduction strategies.
The current approach in Alaska is not working. It can be likened to taking a broken car to a mechanic who only has a wrench and a screwdriver. More time in the shop with the same limited tools won’t fix the car. Senate Bill 91 provides more tools.
About 9 in 10 of our prisoners will eventually return to our communities. Our task is to ensure proper supervision and treatment to change criminal behavior. Lower recidivism rates mean fewer prisoners and fewer victims, and a healthier, safer Alaska for all of us.
Law Enforcement Leaders write letter to Prez candidates Trump and Clinton to urge sentencing reform
As reported via this press release from Law Enforcement Leaders to Reduce Crime & Incarceration, in a letter addressed "to Republican Donald J. Trump and Democrat Hillary Clinton, leading groups representing more than 30,000 current and former police chiefs, sheriffs, prosecutors, district attorneys, attorneys’ general and U.S. Attorneys from all 50 states call for sensible steps to address burgeoning prison populations." According to the press release, this letter "marks the first time the law enforcement community has united with one voice to ask major party candidates to support reducing imprisonment" and thus represents "a powerful reversal from law enforcement’s past support of rigid sentencing laws, and signatories asked the candidates to consider the expertise and perspective that led them to the change of heart."
The full letter is available at this link and it gets started this way
Dear Mr. Trump and Secretary Clinton:
We write to you as representatives of our nation’s largest law enforcement organizations. Collectively our membership includes more than 30,000 law enforcement professionals — current and former police chiefs, sheriffs, district and assistant district attorneys, attorneys’ general and U.S. Attorneys from all 50 states.
As the presumptive nominees for President of the United States, we hope that you will take into consideration the perspective of law enforcement as you set your policies. We believe there is an urgent need for the next Administration to help promote the public safety of this country, reduce recidivism, and reform sentencing policies.
As the men and women who dedicate our lives each day to protect this country’s people, public safety and the administration of justice is our utmost priority. Every day, we are required to make tough judgment calls. Sometimes, that judgment call involves locking-up individuals for a long period of time for a heinous crime that damaged a community. We want dangerous offenders off our streets, and behind bars. We want to make sure the people in the communities we serve are protected. Today we are proud that our country is safer than it has been in a generation, and we work hard every day to ensure it remains that way.
However, we also know that our burgeoning prison population is creating a new public safety challenge. Though this may seem counterintuitive, we know from our experience as law enforcement officials that over-relying on incarceration does not deter crime. As prison budgets have continued to rise, funding for state and local law enforcement has been slashed, negatively impacting innovative work in the field including diversion programs, updating information-sharing systems, and smart policing tactics. With finite prison space, we believe prison should be used for the most dangerous offenders.
Budget aside, law enforcement across the country has shifted to embrace rehabilitation and the opinion that certain individuals in our prison system are serving sentences that are too long for the crime they committed. We also realize that, as we see the same offenders reenter the criminal justice system time and time again, we must be creative and devise innovative programs to reduce recidivism, including job training, addiction counseling, and other productive activities.
Thursday, July 07, 2016
Does Massachusetts have a problem with under-punishment of convicted rapists?
The question in the title of this post is prompted by this new Boston Globe article headlined "Dozens of convicted rapists in Mass. have avoided prison. " Here are excerpts:
More than three dozen people convicted of rape in Massachusetts in recent years have received no prison time for their crimes, state data show, including several who had lengthy criminal histories. A Globe review of Massachusetts court system statistics on 305 rape convictions in the 12-year period that concluded at the end of June 2013 found that in 42 cases, or about 14 percent of the time, defendants received no prison time.
They included two defendants who had a record of either “repetitive” or “violent” convictions, and three had a “serious record.” Seven had a “moderate record” of convictions, while 30 had either never been convicted of a crime or had been convicted of what the court system considered minor offenses. The figures come from annual reports by the Executive Office of the Trial Court.
“If you look at any other violent, serious felony, this would never happen,” said Colby Bruno, an attorney at the Victim Rights Law Center in Boston. Rapists should not be given leniency when it comes to sentencing, Bruno said.
In Massachusetts, state sentencing guidelines call for anyone convicted of certain serious crimes, including rape, to be sentenced to some period of incarceration. For rape, the minimum recommended sentence is five years. But judges aren’t required to follow the guidelines. The Massachusetts data reviewed by the Globe showed that convicted rapists who were incarcerated were typically sentenced to between five and 10 years in prison, and that defendants with more troubling criminal histories usually received lengthier sentences....
National statistics on criminal sentencing are limited. But a federal study on cases that began in 2009 in large urban US counties found 11 percent of convicted rapists were not sentenced to jail or prison time. For those who were incarcerated, the median prison sentence length was 10 years....
The Globe’s review of the data focused on convictions under Massachusetts’ definition of rape, which is described as nonconsensual sex with someone by using force or the threat of bodily injury. The review did not look at other classifications of the crime, such as aggravated, statutory, or child rape. The reports did not detail specific cases. The state trial court office, which is exempt from public record disclosure laws, declined to release further details. The most recent year for which data was available was fiscal year 2013.
Defense attorneys, as well as former judges and prosecutors, offered several potential reasons why someone convicted of rape might not get prison time. One of the most likely scenarios, experts said, would be a plea bargain. A prosecutor with a weak case could offer, in exchange for a guilty plea, to recommend a lesser sentence such as probation to the judge.
Getting a conviction and at least some punishment for the defendant is sometimes viewed as a better option than risking losing the case at trial. It also removes the possible need to bring a traumatized victim to testify. “The ultimate goal is to decrease crime and hold people responsible, and sometimes that can come in different forms and packages,” said law professor Mary G. Leary, a former prosecutor whose focus included sexual assault cases.
In another possible scenario, a victim might ask the judge not to incarcerate the assailant. “Sometimes, when you have parties who know each other, they want the person convicted, but they don’t want them to be incarcerated,” said Christine Cole, executive director of the Crime & Justice Institute, part of the Boston-based nonprofit Community Resources for Justice.
In addition, judges carefully weigh many factors when making sentencing decisions. Factors can include the specific facts of the crime, and whether the defendant cooperated with prosecutors, showed remorse, has a criminal past, and is likely to reoffend, specialists said. The details of each case are critical, said Nancy Gertner, a former federal judge in Boston and a former defense attorney. For example, Gertner said, she routinely encountered cases where defendants, particularly those with drug addiction problems, “wound up with these very long rap sheets, but of relatively minor offenses.”
Some observers, including Cole and Gertner, said they believe judges sentence appropriately in the vast majority of cases. Martin Rosenthal, a longtime criminal defense attorney and Massachusetts Sentencing Commission member, agreed, saying that while “it’s certainly unusual for someone to be convicted of rape and not get incarcerated . . . I don’t think that rape is being diminished in any way” by judges or the justice system. “The idea that we’re being soft on rape as a society is just not true,” he said.
Tuesday, July 05, 2016
Examining with decades of hindsight a (not-so-violent) violent crime spree resulting in LWOP sentences
The front-page of today's New York Times has this interesting piece examining one notable defendant serving multiple LWOP sentences for violent crimes that do not quite seem to justify the extreme sentence decades later. The piece is headlined "One Robber’s 3 Life Sentences: ’90s Legacy Fills Prisons Today," and it gets started this way:
Lenny Singleton is the first to admit that he deserved an extended stay behind bars. To fuel his crack habit back in 1995, he walked into 13 stores over eight days and either distracted a clerk or pretended to have a concealed gun before stealing from the cash register. One time, he was armed with a knife with a six-inch blade that he had brought from his kitchen.
Mr. Singleton, 28 at the time, was charged with robbery and accepted a plea deal, fully expecting to receive a long jail sentence. But a confluence of factors worked against him, including the particularly hard-nosed judge who sentenced him and the zero-tolerance ethos of the time against users of crack cocaine. His sentence was very long: two life sentences. And another 100 years. And no possibility for parole.
There is a growing consensus that the criminal justice system has incarcerated too many Americans for too many years, with liberals and conservatives alike denouncing the economic and social costs of holding 2.2 million people in the nation’s prisons and jails. And Congress is currently debating a criminal justice bill that, among other provisions, would reduce mandatory minimum sentences for nonviolent offenders.
But a divide has opened within the reform movement over how to address prisoners who have been convicted of violent crimes, including people like Mr. Singleton, who threatened shop owners but did not harm anyone. Groups like the American Civil Liberties Union favor a swift 50 percent reduction in prison populations, while conservative prison reform organizations like Right on Crime prioritize the release of nonviolent offenders and worry that releasing others could backfire and reduce public support.
Nonviolent drug offenders make up only about 17 percent of all state prison inmates around the nation, while violent offenders make up more than 50 percent, according to federal data.
As the prison population has increased sharply over the past 30 years, so too has the number of those sentenced to life. Mr. Singleton is among nearly 160,000 prisoners serving life sentences — roughly the population of Eugene, Ore. The number of such inmates has more than quadrupled since 1984, and now about one in nine prison inmates is serving a life term, federal data shows.
“People are celebrating the stabilization of the prison population in recent years, but the scale of mass incarceration is so substantial that meaningful reduction is not going to happen by tinkering around the edges,” said Marc Mauer, the executive director of the Sentencing Project, a Washington-based nonprofit that advocates changes in sentencing policy.
Tuesday, June 28, 2016
Overview of state-level sentencing and criminal justice reform developments
The Pew Charitable Trusts has this new Stateline report headlined "Prisons, Policing at Forefront of State Criminal Justice Action." Here are excertps:
Faced with overcrowded prisons and evidence that lengthy sentences don’t deter crime, more states opted this year to revamp sentencing laws and send some people convicted of lesser, nonviolent crimes to local jails, if they’re locked up at all.
In an about-face after a half-century of criminal justice policies that favored long-term incarceration, Alaska, Kansas and Maryland this year joined at least 25 other states in reducing sentences or keeping some offenders out of prison.
The move to end lengthy prison stays for low-level offenders is one of several steps states took this year in reevaluating criminal justice policies during legislative sessions that have wrapped up in all but a few places. Other measures would help offenders transition back into their communities after release and hold police more accountable.
For years, many lawmakers were wary of appearing soft on crime. But states have recently retooled their criminal justice policies in response to tight post-recession budgets, shifting public opinion and court rulings demanding they ease prison overcrowding....
Alaska, Maryland and Kansas passed bills this year that divert all shoplifting and first-time DUI offenders away from prison, eliminate mandatory minimum sentences for low-level drug offenders, expand parole eligibility, and establish diversion programs for youth offenders, respectively.... And in Tennessee, lawmakers changed standards for property theft charges to help reduce the prison population, and established alternatives to re-incarceration for offenders who violate conditions of their parole or probation.
Many of the proposals enacted this year strike a complicated balance between boosting support for ex-offenders and ensuring that those convicted of crimes are held accountable. Relaxing sentencing and increasing the amount of good-time credits prisoners can earn toward an early release means hardened criminals might get out of prison sooner than they should, said Maryland Del. John Cluster, a retired police officer.
But he said his state could have gone farther to help offenders with job training and other re-entry assistance once they serve their time. “You clean an addict up and you let him out,” Cluster, a Republican, said. “[If] he doesn’t have a job, in less than a year he’s going to be back on the drugs.”
Many lawmakers are eager to reduce the expenses that come with running prisons. For example, prison systems cost taxpayers 14 percent more than state budgets indicate because they do not factor in expenses like benefits for correctional employees and hospital care for inmates. Prisons also strain local social services, child welfare and education programs.
But still, some elected officials want to build more. In Alabama, Republican Gov. Robert Bentley proposed spending $80 million to consolidate some of the state’s existing prisons and build four new ones. The state has one of the most overcrowded prison systems in the country, operating at 180 percent of capacity.
Sunday, June 26, 2016
Mother Jones devotes issue to reporter's four months working as a private prison guard
Going from being just a must-read to perhaps a must-buy, Mother Jones has devoted much of its July/August 2016 issue to the writings of reporter Shane Bauer providing his first-hand account of his four months working as a guard at a private prison in Louisiana.
This Editor's Note sets the tone and provides the context for this work under the full headline "Why We Sent a Reporter to Work as a Private Prison Guard: Legal intimidation has made investigations like this rare. It’s time for journalists to reclaim our roots." Here are excerpts from this Editor's Note:
In 1887, a 23-year-old journalist got herself checked into the Women's Lunatic Asylum on Blackwell's Island in New York City. When she emerged, she wrote about patients tied together with ropes, abusive staff and ubiquitous vermin, "lunatics" treated with nothing more restorative than ice baths, and, perhaps most disturbingly, patients who seemed to be perfectly sane, dumped there by a society that had few safety nets for women who were single, poor, and often immigrants....
Here are the chapter headings and links to this remarkable piece of reporting about private prisons:Bly's work holds up not only for its daring, but for its impact: It prompted a grand jury investigation that led to changes she'd proposed, including a $26 million (in today's dollars) increase to the budget of the city's Department of Public Charities and Correction and regulations to ensure that only the seriously mentally ill were committed....Bly — who'd go on to get herself arrested so she could investigate conditions at a women's prison, and to best Jules Verne's fictional protagonist by circumnavigating the world in 72 days—was not the first journalist to go inside an institution to expose its inner workings. Or the last.... But while such investigations were commonplace in the muckraker era, they've grown increasingly rare. Why? First, there's a real concern over ethics. When is it okay for reporters to not announce themselves as such? There's no governing body of journalism, but a checklist written by Poynter ethicist Bob Steele provides guidelines for assessing when this kind of reporting is acceptable. I'll paraphrase:
- When the information obtained is of vital public interest.
- When other efforts to gain that information have been exhausted.
- When the journalist is willing to disclose the reason and nature of any deception.
- When the news organization applies the skill, time, and funding needed to fully pursue the story.
- When the harm prevented outweighs any harm caused.
- After meaningful deliberation of the ethical and legal issues.
To see what private prisons are really like, Shane Bauer applied for a job with the Corrections Corporation of America. He used his own name and Social Security number, and he noted his employment with the Foundation for National Progress, the publisher of Mother Jones. He did not lie. He spent four months as a guard at a CCA-run Louisiana prison, and then we spent 14 more months reporting and fact-checking.We took these extraordinary steps because press access to prisons and jails has been vastly curtailed in recent decades, even as inmates have seen their ability to sue prisons — often the only way potential abuses would pop up on the radar of news organizations or advocates — dramatically reduced. There is no other way to know what truly happens inside but to go there.But here's the other reason investigations like this one have grown so rare: litigation.... Nondisclosure agreements — once mainly the provenance of people who work on Apple product launches and Beyoncé videos — are now seeping into jobs of all stripes, where they commingle with various other "non-disparagement" clauses and "employer protection statutes." Somewhere along the way, employers' legitimate interest in protecting hard-won trade secrets has turned into an all-purpose tool for shutting down public scrutiny—even when the organizations involved are more powerful than agencies of government.Or when, for that matter, they replace the government. When CCA (which runs 61 prisons, jails, and detention centers on behalf of US taxpayers) learned about our investigation, it sent us a four-page letter warning that Shane had "knowingly and deliberately breached his duty to CCA by violating its policies," and that there could be all manner of legal consequences....
Shane's story will draw a fair bit of curiosity around the newsgathering methods employed. But don't let anyone distract you from the story itself. Because the story itself is revealing as hell.
CHAPTER 1: "Inmates Run This Bitch"
CHAPTER 2: Prison Experiments
CHAPTER 3: The CCA Way
CHAPTER 4: "You Got to Survive"
CHAPTER 5: Lockdown
Saturday, June 25, 2016
Will party platforms include commitment to reduce mass incarceration (and does it really matter)?
The question in the title of this post is prompted by this new Politico article , headlined "Civil rights groups push Dems, GOP to include sentencing reform in their platforms." Here are excerpts:
An influential coalition of civil rights groups pushing for criminal justice reform is pressuring both the Republican National Committee and Democratic National Committee to include the issue in their respective party platforms this summer.
In a new letter, the organizations — including the American Civil Liberties Union, the NAACP, the Urban League and the Brennan Center for Justice — argue that after decades of pushing tougher crime laws, both Democrats and the GOP need a “bold break” toward policies aiming at easing incarceration rates.
“As you convene to set your respective policy agenda, we urge you to include reducing mass incarceration, while increasing public safety, as part of your party platforms,” the groups wrote in the letter, addressed to the respective party chairs and platform committee leaders and provided to POLITICO in advance of its release.
Among the policies called for by the pro-criminal justice reform groups: Revising sentencing laws so the “punishment is proportional to the crime and no longer than necessary to achieve rehabilitation and deterrence,” helping to reduce recidivism rates by promoting job training and educational programs for former inmates, and using federal funds to reward states for policies that reduce both the prison population and crime rates. “While more is needed to fully achieve reform, including these measures in the platforms will signal a significant shift in national policy,” the organizations wrote.
Criminal justice reform has been a lingering issue in Washington, with both President Barack Obama and key Republican leaders in Congress saying they want to pass legislation overhauling sentencing laws and other prison reforms this year. But the issue has also been a divisive one, particularly within the Senate Republican Conference, and its prospects are growing dimmer -- particularly in a contentious election year.
Thursday, June 23, 2016
California legislators introduce bill seeking to mandate that any future Brock Turners face three-year minimum prison terms
As reported in this Reuters piece, headlined "California lawmakers move to change sentencing law following Stanford case," the common legislative reaction by policy-makers to concerns about an unduly lenient sentence is in progress in the wake of the high-profile sexual assault sentencing of Brock Turner. Here are the basics:
Seizing on a nationwide furor over the six-month jail term handed to a former Stanford University swimmer following his conviction for sexual assault on an unconscious woman, California lawmakers on Monday introduced legislation to close a loophole that allowed the sentence. The bill, known as AB 2888, marks the latest response to the sentence given to 20-year-old Brock Turner by Santa Clara County Superior Court Judge Aaron Persky in June, which was widely condemned as too lenient. Prosecutors had asked that Turner be given six years in state prison.
"Like many people across the nation, I was deeply disturbed by the sentence in the Brock Turner case," Assemblyman Bill Dodd, one of two California state legislators who introduced the bill, said in a written statement. "Our bill will help ensure that such lax sentencing doesn't happen again."
Turner was convicted of assault with intent to commit rape, penetration of an intoxicated person and penetration of an unconscious person in the January 2015 attack. Under California law, those charges are not considered rape because they did not involve penile penetration. According to the lawmakers, current California law calls for a mandatory prison term in cases of rape or sexual assault where force is used, but not when the victim is unconscious or severely intoxicated and thus unable to resist.
The new legislation, which was introduced in the state assembly on Monday, would eliminate this discretion of a judge to sentence defendants convicted of such crimes to probation, said Ben Golombek, a spokesman for Assemblyman Evan Low, a co-author of the bill. Golombek said that the effect of the proposed new law, which must still be approved by both houses of the legislature and signed by Governor Jerry Brown, is that Turner would have faced a minimum of three years behind bars.
Prior related posts:
- Lots of seemingly justifiable outrage after lenient California sentencing of privileged man convicted of three felony counts of sexual assault
- Lots more mainstream and new media commentary on lenient sentencing of Stanford sex assaulter
- NY Times debates "Should an Unpopular Sentence in the Stanford Rape Case Cost a Judge His Job?"
- "The Stanford rape case demonstrates liberal hypocrisy on issues of basic fairness in the criminal justice system"
- Juror involved in trial of Stanford swimmer Brick Turner assails sentence given for sexual assault convictions
- Considering the potential negative consequences of the Stanford rape sentencing controversy and judge recall effort
Wednesday, June 22, 2016
"Making Hard Time Harder: Programmatic Accommodations for Inmates with Disabilities Under the Americans with Disabilities Act"
The title of this post is the title of this interesting new report from the AVID Prison Project. (AVID stand for Amplifying Voices of Inmates with Disabilities, and its website provides more on the report and on the AVID Prison Project.) Here are excerpts from the report's executive summary:
The disproportionate incarceration of people with disabilities in the United States is a serious and growing problem. As the prison population ages, more inmates are reporting physical disabilities. The U.S. has also seen a rise in the number of people with mental illness and developmental and cognitive disabilities in prison. National surveys now indicate that as many as 31 percent of inmates in state prisons report having at least one disability.
While prison is hard for everyone, incarceration is even more challenging for inmates with disabilities. Research shows that inmates with disabilities are sentenced to an average of fifteen more months in prison as compared to other inmates with similar criminal convictions. The time they serve is also harder, with more sanctions imposed and less access to positive programming than other inmates. Prisoners with disabilities are also four times more likely to report recent psychological distress as compared to inmates without disabilities. In a system intended to control and sanction behavior believed to violate the many regulations that govern prison life, inmates with disabilities who need accommodations are often overlooked, ignored, or even punished.
Very few outsiders are allowed into the prisons, and the public rarely gets to witness the conditions in which many inmates are confined. In recent years, protection and advocacy agencies (P&As), organizations granted with special federal authority to enter facilities that serve people with disabilities, have been going behind prison walls to identify issues facing inmates with disabilities.
P&As have received reports of inmates forced to drag themselves across their cell or sleep on the floor because their cane or walker was removed. Inmates with cognitive disorders, intellectual disabilities, or mental illness have sought assistance because they are unable to complete the programming required to move out of restrictive housing, forcing them to remain in segregation for years, if not decades. These same inmates may be punished for failing to follow the written rules of the prison, rules they either cannot read or cannot understand due to a disability, resulting in sanctions, loss of good time, or even additional criminal charges. Inmates in need of therapeutic diets or those who require assistance in activities of daily living often find themselves caught in an endless cycle of institutional grievances and appeals as they seek approval for accommodations in correctional policy and practice.
In recognition of the growing population of inmates with disabilities, in 2012 Disability Rights Washington, the P&A for Washington State, began focusing more attention on the state’s prisons, investigating the conditions of these correctional settings and working on creative solutions to some of the most serious problems faced by inmates with mental illness, brain injuries, and physical and intellectual disabilities. In early 2014, with increased funding through a private grant, Disability Rights Washington created Amplifying Voices of Inmates with Disabilities (AVID), a project with the sole purpose of protecting and advancing the rights of inmates with disabilities and assisting those who are reentering society. In September 2014, AVID brought together staff from the P&As in New York, South Carolina, Arizona, Colorado, Louisiana, and Texas, as well as from the National Disability Rights Network, to strategize about ways to increase national attention on the issues faced by inmates with disabilities.
This report, which has grown out of that collaborative national effort, aims to highlight the difficulties that inmates with disabilities face as they seek to access programs and services in state prison systems. P&As from across the country provided examples of either past or ongoing advocacy to enforce the protections of the Americans with Disabilities Act (ADA) on behalf of inmates with disabilities. By no means exhaustive, this report provides an overview of the protections afforded to inmates with disabilities under the ADA as well as examples in which P&As have advocated effectively on behalf of inmates with disabilities. This advocacy is multi-modal, ranging from routine monitoring, to informal and individual advocacy, to systemic litigation.
This report begins with a brief overview of the P&A system, describes the different types of advocacy P&As use, and outlines the ADA’s application to prisons. Next, this report details the work P&As across the country have done to advance inmates’ rights under the ADA, focusing on three main areas of prison life: (1) hygiene, health, and safety, (2) accommodations in communication, and (3) access to programming and services. A review of this work reveals that while the ADA has been in place for more than 25 years, much remains to be done to bring programs and buildings in the nation’s prisons into compliance with the requirements of the ADA. This report concludes with a series of recommendations for future action....
Ultimately, this report is intended to spur interest and action within the P&A network and other prison advocacy groups and increase focus on what has become a crisis within the nation’s prison system.
Thursday, June 16, 2016
"States of Incarceration: The Global Context 2016"
The title of this post is the title of this notable new report from the folks at the Prison Policy Initiative. This press release from PPI provides an overview of the context and contents of this report:
How does your state compare to the international community when it comes to the use of incarceration? Not very well, says a new report and infographic by the Prison Policy Initiative.
“When compared against each other, some U.S. states appear to be far more restrained in their use of incarceration than high incarcerators like Louisiana,” said Peter Wagner, Executive Director of the Prison Policy Initiative and co-author of the report. “But all U.S. states are out of step with the rest of the world.”
This report, “States of Incarceration: The Global Context 2016,” updates our 2014 briefing that, for the first time, directly situated individual U.S. states in the global context.
“Massachusetts and Vermont have the lowest incarceration rates in the U.S.,” said Alison Walsh, report co-author and Policy & Communications Associate. “Compared to Louisiana, these states look progressive. But if these states were independent nations, they would rank as the 11th and 12th greatest users of incarceration on the planet, following the United States and a group of nations whose recent history often includes wars, military coups and genocides.”
The report includes an interactive graphic showing the incarceration rates for individual U.S. states and the District of Columbia and all countries with a population of at least 500,000. The report also includes a separate graphic comparing the incarceration rates of the U.S. to several NATO nations. “I hope that this data helps all states prioritize further criminal justice reforms. Lower incarceration rates are not only possible, in the rest of the world they are a reality,” said Wagner.
The report and infographic draw international figures on incarceration from the Institute for Criminal Policy Research’s World Prison Brief and state-level figures from the Bureau of Justice Statistics, the Bureau of Prisons and the U.S. Census Bureau.
The Easthampton, Massachusetts-based Prison Policy Initiative was founded in 2001 to expose the broader harm of mass criminalization and spark advocacy campaigns to create a more just society. The organization is most well known for sparking the movement to end prison gerrymandering and for its big picture data visualization “Mass Incarceration: The Whole Pie.”
"Private Prisons and the Marketplace for Crime"
The title of this post is the title of this notable new paper authored by andré douglas pond cummings and Adam Lamparello now available via SSRN. Here is the abstract:
A saner and safer prison policy in the United States begins by ending the scourge of the private prison corporation and returning crime and punishment to public function. We continue by radically reimagining our sentencing policies and reducing them significantly for non-violent crimes. We end the War on Drugs, once and for all, and completely reconfigure our drug and prison policy by legalizing and regulating marijuana use and providing health services to addicts of harder drugs and using prison for only violent drug kingpins and cartel bosses. We stop the current criminalization of immigration in its tracks and block the private prison lobby from influencing legislation in our current immigration policy debates. We provide prisoners a fair wage for work done in prison, allowing them a re-entry account upon release filled with the money they earned while working in prison. We provide humane and habitable prison cells populated by one inmate, as saner and safer crime and punishment policies will imprison far fewer American citizens.
At their core, private prisons reflect a continuation of policies that have tainted the criminal justice system with perceptions of arbitrariness, unfairness, and injustice. As this article has shown, the continued proliferation of private prisons does not save taxpayers money, increase prison safety, or elevate the conditions of the prison environment. Conversely, they do the opposite. Inmates are being physically abused, denied medical care, and forced to endure inhumane living conditions, as corporations like CCA and GEO Group realize higher profits from a marketplace in which prisoners are in high demand. Indeed, CCA is a textbook example of the grave injustices that can occur when profit maximization clashes with human dignity. The time has arrived for private prisons to be eliminated and for legislators and courts to realize that this experiment is one that has failed. Until that time comes, Congress should implement purpose-driven reforms to ensure that private prisons can no longer be institutions where inmates have rights but no remedies.
Friday, June 10, 2016
"The Color of Justice: Racial and Ethnic Disparity in State Prisons"
The title of this post is the title of this notable data-heavy new report from The Sentencing Project. Here is part of the reports "Overview" section:
Growing awareness of America’s failed experiment with mass incarceration has prompted changes at the state and federal level that aim to reduce the scale of imprisonment. Lawmakers and practitioners are proposing “smart on crime” approaches to public safety that favor alternatives to incarceration and reduce odds of recidivism. As a result of strategic reforms across the criminal justice spectrum, combined with steadily declining crime rates since the mid-1990s, prison populations have begun to stabilize and even decline slightly after decades of unprecedented growth. In states such as New Jersey, New York, Rhode Island, and California, prison depopulation has been substantial, declining by 20-30%. Still, America maintains its distinction as the world leader in its use of incarceration, including more than 1.3 million people held in state prisons around the country.
At the same time of productive bipartisan discussions about improving criminal justice policies and reducing prison populations, the U.S. continues to grapple with troubling racial tensions. The focus of most recent concern lies in regular reports of police brutality against people of color, some of which have resulted in deaths of black men by law enforcement officers after little or no apparent provocation.
Truly meaningful reforms to the criminal justice system cannot be accomplished without acknowledgement of racial and ethnic disparities in the prison system, and focused attention on reduction of disparities. Since the majority of people in prison are sentenced at the state level rather than the federal level, it is critical to understand the variation in racial and ethnic composition across states, and the policies and the day-to-day practices that contribute to this variance. Incarceration creates a host of collateral consequences that include restricted employment prospects, housing instability, family disruption, stigma, and disenfranchisement. These consequences set individuals back by imposing new punishments after prison. Collateral consequences are felt disproportionately by people of color, and because of concentrations of poverty and imprisonment in certain jurisdictions, it is now the case that entire communities experience these negative effects. Evidence suggests that some individuals are incarcerated not solely because of their crime, but because of racially disparate policies, beliefs, and practices, rendering these collateral consequences all the more troubling. An unwarranted level of incarceration that worsens racial disparities is problematic not only for the impacted group, but for society as whole, weakening the justice system’s potential and undermining perceptions of justice.
This report documents the rates of incarceration for whites, African Americans, and Hispanics, providing racial and ethnic composition as well as rates of disparity for each state.
Should I really be too troubled by a Texas life sentence (with parole eligibility in 30 years) for nine-time drunk driver?
The question in the title of this post is prompted by this New York Times piece headlined "He Had 8 Convictions for Driving Drunk. On His 9th, He Got Life." Here are the details:
The first eight convictions for driving while intoxicated didn’t stop Donald Middleton of Houston from sliding behind the wheel and getting his ninth conviction. This time, the judge had had enough.
When Mr. Middleton, 56, faced Judge Kathleen Hamilton of the 359th District Court in Texas on Tuesday, she sentenced him to life in prison. He won’t be eligible for parole for 30 years.
Such a harsh sentence is uncommon for drunken-driving convictions, which often lead to temporary license suspensions and prison stays that allow repeat offenders to return to the road. In Mr. Middleton’s case, he still had a valid driver’s license, despite the eight convictions. Mr. Middleton’s case raises the question: How many times does someone have to be caught driving drunk before he or she can no longer legally drive?
He was arrested in May 2015 after he turned into the wrong lane and collided head-on with a vehicle driven by a 16-year-old who was on the way home from work at a grocery store. Mr. Middleton ran into a nearby convenience store and repeatedly asked a clerk to hide him, prosecutors said. He had a blood-alcohol level of 0.184, more than twice the legal limit, 0.08, according to Justin Fowles, a Montgomery County assistant district attorney. Mr. Middleton pleaded guilty to driving while intoxicated last May and has been in jail since.
The teenager, Joshua Hayden, was not injured, but his father, Rowdy Hayden, said in a telephone interview that he appreciated the judge’s harsh sentence. “It angers me, as a father, that this individual skirted the justice system eight times and was still out here endangering our citizens on the roadway by drinking and driving,” said Mr. Hayden, who is a police constable in Montgomery County. “His proven track record showed he was going to continue to drink and drive. And who knows, the next time he may have killed someone.”
Mr. Middleton had four previous stints in prison for driving while intoxicated. His eighth conviction, in 2008, involved rear-ending a car with several people inside; they sustained minor injuries. Mr. Middleton fell out of the car and was unable to stand, Mr. Fowles said.
The conviction from that episode led to a 13-year prison sentence, of which he served four years. After the most recent conviction, he was classified as a habitual offender, which enabled the longer sentence. “He had proven to us that he can’t be trusted with his own freedom, that he’s a danger to our community and that the best thing for everyone else’s safety on the roadways is for him to never be able to drive again,” Mr. Fowles said in a telephone interview.
Rules for stopping habitual drunken drivers vary wildly by state, but repeat offenders tend to get multiple extra chances. The National Highway Traffic Safety Administration estimates that one in three people arrested on drunken-driving charges are repeat offenders. In Minnesota, a 61-year-old man was released from prison last year after a five-year stay for his 27th conviction related to drunken driving. In Pennsylvania, one man was arrested five times in less than a year, but never lost his driver’s license or served more than 10 days in jail....
J. T. Griffin, the chief government affairs officer for Mothers Against Drunk Driving, said the organization had focused on promoting ignition interlock devices, which require anyone convicted of drunken driving to pass a breathalyzer test before starting a car. Twenty-seven states have laws requiring them, including New York, he said. Suspending licenses can be ineffective when many people continue to drive without a valid license, he said.
“We believe in going after D.U.I. the first time, not waiting for the second or third or fourth offense,” Mr. Griffin said. “The first time is unacceptable. And nine times is just ridiculous.”
Thursday, June 09, 2016
Unpacking the (never-simplistic and never-certain) stories of state crimes and incarceration levels
This new Atlantic story, headlined "Crime Is Down, Sort Of: New stats on U.S. imprisonment rates suggest a complicated future for criminal-justice reform," provides a usefully nuanced account of this new Brennen Center report titled simply "Update: Changes in State Imprisonment Rates." Here first is what the Brennan Center sets up its report:
Today, there are 2.3 million people in the nation’s prisons and jails — a 500 percent increase over the last forty years. With almost one in 100 American adults behind bars, our incarceration rate is the world’s highest. This fact sheet provides an update to findings on state imprisonment trends originally outlined in The Reverse Mass Incarceration Act. It analyzes data from all 50 states on imprisonment and crime from 2006 (as bipartisan criminal justice reforms generally began around 2007) through 2014 (the most recent year of data).
Two overarching findings:
1. Many argue that increased incarceration is necessary to reduce crime. Yet the data shows the opposite. Over the last ten years, 27 states have decreased both crime and imprisonment. Not only is this trend possible, it’s played out in the majority of states. Nationally, imprisonment and crime have fallen together, 7 percent and 23 percent respectively since 2006. Crime continued its downward trend while incarceration also decreased.
2. In recent years, states in the South have seen some of the largest decreases in imprisonment. Yet, they also remain the largest incarcerators in the country. Mississippi reduced imprisonment by 10 percent but still has the nation’s 5th highest incarceration rate. Texas has reduced imprisonment by 15 percent yet still has the 7th highest imprisonment rate in the country.
And here is a snippet from the Atlantic's discussion of the report:
Many Americans might make a basic mathematical error in looking at the country’s criminal-justice system: They assume more people in jail or prison always equals less crime, and more crime necessarily calls for putting more people behind bars. Both conclusions are wrong. A new report from the Brennan Center for Justice provides some illuminating data on this point.
The report’s most fascinating finding is that imprisonment and overall crime rates were down 7 percent and 23 percent, respectively, from 2006 to 2014. “States will continue to decrease imprisonment slowly; we might perhaps see crime leveling out,” Chettiar said. “Criminologists say we have reached an all-time low in crime. I expect we’ll continue to see low crime and lowered imprisonment rates.”...
In the analysis, high achievers included Rhode Island, New Jersey, Hawaii, Nebraska, Connecticut, California, Colorado, and South Carolina. All saw double-digit drops in their rates of imprisonment per 100,000 residents. That does not necessarily indicate a dramatic drop in the actual number of people behind bars—an overall decrease in the rate at which a state imprisons people can result from many factors, including the release of current inmates, diversion efforts to keep those arrested out of jail, and the reclassification of low-level crimes that may let some offenders bypass custody....
In terms of overall crime, Vermont, Minnesota, Pennsylvania, North Carolina, Illinois, Maryland, and Louisiana reduced their rates most. Each saw a decrease of 30 percent or more in their crime rates per 100,000 residents. States such as New Hampshire, North Dakota, and South Dakota each saw big increases in their in crime rates, all 30 percent or higher.
As policymakers are paying increased attention to the shortcomings of the criminal-justice system and more citizens seem to accept the need for policy changes, these facts suggest reform will look very different in different states—and above all, it will be complicated.
Wednesday, June 01, 2016
"Correctional Control: Incarceration and supervision by state"
The title of this post is the title of this notable new data-rich report from the fina folks at the Prison Policy Initiative. Here are excerpts from the text at the start of the report (with links from the original):
Prisons are just one piece of the correctional pie. When states are judged solely on their incarceration rates, we are ignoring the leading type of correctional control: probation. In fact, some of the states that appear to be least punitive are the most likely to put their residents under some other form of correctional control. Other states are making changes to their criminal justice systems that shift large numbers of people from one part of the correctional pie to another.
For the first time, this report aggregates data on all of the kinds of correctional control: federal prisons, state prisons, local jails, juvenile incarceration, civil commitment, Indian Country jails, parole and, lastly but importantly, probation. We make the data accessible in one nationwide chart and 100 state-specific pie charts.
We find that this tremendous variation between the states is largely driven by differences in the use of probation, which is the leading form of correctional control nationally. A majority (56%) of people under the control of the American criminal justice system are on probation. Despite receiving little public attention, probation is a significant component of each state’s criminal justice system. While states vary when it comes to their use of prisons and jails, there is far greater variation in their use of probation. For example, in Nevada, 31% of the people under correctional control are on probation whereas in Georgia, a whopping 78% of people under correctional control are on probation.
Georgia’s rate of probation is more than double every other states’ rate of probation and greater than every other states’ total rates of correctional control. One reason why Georgia’s use of probation has ballooned to these levels is that the state uses privatized probation, which unnecessarily puts Georgia residents with extremely minor offenses on probation.
Parole (a type of conditional release from prison) makes up 11% of the correctional population nationally and also varies widely between states, sometimes in ways unrelated to the size of the state prison population. We find that for every 100 people incarcerated in a state prison in that state:
- Maine has 1 person on parole.
- Florida has 4 people on parole.
- Arkansas has 117 people on parole.
- Pennsylvania has 198 people on parole.
June 1, 2016 in Criminal Sentences Alternatives, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)
Monday, May 30, 2016
New Vera Institute report reviews trends in state sentencing and corrections
The folks at The Vera Institute of Justice's Center on Sentencing and Corrections released last week a terrific report on state sentencing developments under the title "Justice in Review: New Trends in State Sentencing and Corrections 2014-2015." The full 72-page report (with lots of charts) is available at this link; a short summary is available here and includes this text:
Prompted by dissatisfaction with stubbornly high rates of return among those released from prison, and encouraged by public opinion polls that show a majority of the electorate believes that prison growth has yielded insufficient public safety gains, there is an emerging consensus across the political divide that America’s over-reliance on prison has been too costly and ineffective. Driven by the need to find better solutions, policymakers over the past several years have embraced decades of research and analysis examining what works in corrections to reduce recidivism and improve public safety.
Informed by this research and analysis, 46 states in 2014 and 2015 enacted at least 201 bills, executive orders, and ballot initiatives to reform at least one aspect of their sentencing and corrections systems. These included laws to
create or expand opportunities to divert people away from the criminal justice system: States increased the use of alternative case dispositions, such as deferred adjudication programs, which allow people with first-time or low-level charges to avoid entering a guilty plea or ending up with a record of conviction if they serve a crime-free probationary period. States also expanded or strengthened the use of problem-solving courts that channel people with specific treatment needs, such as mental illness or substance abuse issues, into alternative judicial settings that provide intensive supervision in the community and treatment in lieu of prosecution or sentencing. Still other states passed laws that empower arresting officers to divert certain defendants—especially those with an identified mental health need—into treatment instead of detention;
reduce prison populations: States enacted laws to reduce or contain prison populations by 1) making certain offenses eligible for community-based sentences; 2) reducing the length and severity of custodial sentences by redefining or reclassifying crimes or repealing mandatory penalties; 3) shortening lengths of stay in prison by expanding opportunities to earn sentence credits, which shave off time in custody and advance parole eligibility; and 4) reducing the influx of people into prison for violations of community supervision by implementing evidence-based practices such as graduated responses to violations; and
support people’s successful reentry into the community: To reduce recidivism, states changed their reentry systems to provide better coordination between prisons and community supervision agencies and to increase programming and treatment. In addition, states are supporting family relationships by facilitating family visitation, supporting relationships between incarcerated parents and their children, and ensuring that children of incarcerated people receive care and support. States are also helping people who are justice-involved obtain benefits, state identification, and exercise their voting rights; improving employment prospects by limiting bars on professional licenses and providing certificates of rehabilitation and employability; waiving fines and fees that often create economic obstacles to reintegration; and making it easier for people to expunge prior convictions and more difficult for private entities to disseminate criminal-records data.
Sunday, May 29, 2016
"Anti-Incarcerative Remedies for Illegal Conditions of Confinement"
The title of this post is the headline of this notable new article by Margo Schlanger now available via SSRN. Here is the abstract:
Our bloated prisoner population includes many people who are especially likely to face grievous harm in jail and prison--prisoners with mental illness, serious intellectual disabilities, chronic illnesses, and physical disabilities; gay, lesbian, and transgender prisoners; juveniles in adult facilities and others. In this symposium essay, I argue that when such difficulties are manifest, and create conditions of confinement that are illegal under the Eighth Amendment, Americans with Disabilities Act, or other source of law, plaintiffs should seek, and courts should grant, court-enforceable remedies diverting prisoners away from incarceration, in order to keep vulnerable populations out of jail and prison. What’s novel about this proposal is not the diversionary remedies themselves, but the connection of such programs to conditions of confinement litigation. Only rarely have such initiatives — which I label “anti-incarcerative” — been imposed or negotiated as court-enforceable solutions for jail or prisons conditions problems. And when they have, it’s mostly been to facilitate compliance with a court-ordered population cap. What I’m urging is a new generation of anti-incarcerative remedies in conditions lawsuits, unconnected to a population order, whose purpose is to keep vulnerable would-be prisoners out of harm’s way by promoting workable alternatives to incarceration.
In Part I, I describe the history of population caps in conditions of confinement lawsuits. These kinds of direct population limits — still available and valuable, in the right case — constituted a first generation of decarcerative conditions orders. They are important both historically and because they demonstrate that ordinary remedial law allows court orders that keep prisoners out of prison in order to avoid constitutional problems inside. I next highlight in Part II a few pioneering court orders that have specified anti-incarcerative remedies, hooked to alleged or proven unconstitutional conditions caused by crowding. Like the population caps, these orders have aimed explicitly at population reduction. I move in Parts III and IV to two models for anti-incarcerative orders that are not premised on crowding. In Part III, I examine recent remedies addressing unconstitutional solitary confinement. Many of these recent orders have not simply barred prisons from imposing the solitary conditions plaintiffs allege are unconstitutional. Rather, they establish and regulate alternatives to solitary confinement. A final useful model, which I examine in Part IV, can be found in ongoing deinstitutionalization remedies in cases, on the model of Olmstead v. L.C, that enforce the Americans with Disabilities Act, which have focused more on provision of services in the community than on institutional exclusions. The orders in both Parts III and IV support my contention that the ordinary law of remedies allows entry of orders keeping prisoners out of a situation in which they would face unconstitutional harm. Finally, in Part V, I explain why the Prison Litigation Reform Act’s constraints on “prisoner release orders” should not obstruct a new generation of anti-incarcerative orders.
Our national infatuation with incarceration has led to the damaging imprisonment of many vulnerable people in jails and prisons ill-equipped to house them safely — people with mental and physical disabilities, juveniles, the elderly, minor offenders, and others. When a particular facility or system is unable to provide these prisoners with lawful conditions of confinement, plaintiffs should seek, and federal courts should grant, anti-incarcerative orders that facilitate alternatives.
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.