Saturday, April 02, 2016

"Racial Disparities in Youth Commitments and Arrests"

The title of this post is the title of this notable new policy brief from The Sentencing Project with lots notable data, which gets started this way:

Between 2003 and 2013 (the most recent data available), the rate of youth committed to juvenile facilities after an adjudication of delinquency fell by 47 percent Every state witnessed a drop in its commitment rate, including 19 states where the commitment rates fell by more than half.  Despite this remarkable achievement, the racial disparities endemic to the juvenile justice system did not improve over these same 10 years.  Youth of color remain far more likely to be committed than white youth. Between 2003 and 2013, the racial gap between black and white youth in secure commitment increased by 15%.

Both white youth and youth of color attained substantially lower commitment rates over these 10 years.  For white juveniles, the rate fell by 51 percent (140 to 69 per 100,000); for black juveniles, it fell 43 percent (519 to 294 per 100,000).  The combined effect was to increase the commitment disparity over the decade.  The commitment rate for Hispanic juveniles fell by 52 percent (230 to 111), and the commitment rate for American Indian juveniles by 28 percent (354 to 254).

As of 2013, black juveniles were more than four times as likely to be committed as white juveniles, Americans Indian juveniles were more than three times as likely, and Hispanic juveniles were 61 percent more likely.  Another measurement of disproportionate minority confinement is to compare the committed population to the population of American youth.

Slightly more than 16 percent of American youth are African American. Between 2003 and 2013, the percentage of committed juveniles who were African American grew from 38 percent to 40 percent.  Roughly 56 percent of all American youth are white (non-Hispanic). Between 2003 and 2013, the percent of committed juveniles who were white fell from 39 percent to 32 percent.

April 2, 2016 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

Thursday, March 31, 2016

Extraordinany (and extraordinarily timely) issue of the Annals of the American Academy of Political and Social Science

The March 2016 issue of The ANNALS of the American Academy of Political and Social Science has an extraordinary collections of essays by an extraordinary array of legal scholars and sociologists and criminologists under the issue title "The Great Experiment: Realigning Criminal Justice in California and Beyond." Though many of the articles focus on California's unique and uniquely important recent criminal justice reforms experiences, all folks interested in and concerned about sentencing and corrections reform in the United States ought to find the time to read most or all of the articles in this collection.

The special editors of this issue, Charis Kubrin and Carroll Seron, authored this introduction to the collection under the title "The Prospects and Perils of Ending Mass Incarceration in the United States."  Here is an excerpt from that introduction:

This volume of The ANNALS represents the first effort by scholars to systematically and scientifically analyze what Joan Petersilia (2012) has described as “the biggest criminal justice experiment ever conducted in America.”  She went on to note that “most people don’t even realize it’s happening,” a point underscored by Franklin Zimring in the volume’s concluding remarks.  At a historic moment in which imprisonment patterns across the U.S. are shifting for the first time in nearly 40 years, the California case is ripe for in-depth examination.  The political landscape around decarceration is also shifting in ways that do not fit the debate of the last 40 years.  The initiative behind the prison buildup was largely an offshoot of more conservative, law and order political agendas, but as the nation debates a move toward prison downsizing and decarceration, there is support from both the Left and the Right for this fundamental shift in policy (Aviram, this volume; Beckett et al., this volume) — unusual bedfellows at a time of political polarization.  While this political convergence will no doubt be contested, as Joan Petersilia emphasizes in the volume’s preface, it nonetheless represents an important moment to have a systematic, rigorous, and scientific evaluation of California’s experiment and its implications on hand for policy-makers.

March 31, 2016 in Prisons and prisoners, Purposes of Punishment and Sentencing, Recommended reading, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0)

Wednesday, March 30, 2016

Harvard Law School launches "Fair Punishment Project"

While I was on the road yesterday, I received an email with some exciting news from my law school alma mater.  Here is the text of the email announcement:

We'd like to introduce you to a brand new initiative brought to you by Harvard Law School's Charles Hamilton Houston for Race & Justice and its Criminal Justice Institute called the Fair Punishment Project (FPP).  The Fair Punishment Project will use legal research and educational initiatives to ensure that the U.S. justice system is fair and accountable.  The Project will work to highlight the gross injustices resulting from prosecutorial misconduct, ineffective defense lawyers, and racial bias and exclusion. We are dedicated to illuminating the laws that result in excessive punishment, especially the death penalty and juvenile life without parole.

We'll be releasing our first report in the next day or two, so keep an eye out -- you don't want to miss it.  Future reports will highlight the troubling attributes that outlier death penalty counties have in common, examine America's top 10 deadliest prosecutors, and look deeply into counties that are plagued by prosecutorial misconduct. 

The Charles Hamilton Houston Institute was launched in 2005 by Harvard Law School professor Charles J. Ogletree Jr. The Institute serves as a critical bridge between scholarship, law, policy, and practice to solve the challenges of a multi-racial society.  The Criminal Justice Institute trains Harvard Law School students who will be the next generation of ethical, effective, and passionate defense lawyers.  Led by Ronald S. Sullivan Jr., the Institute leads research of the criminal and juvenile justice systems in order to affect local and national reform.

The Fair Punishment Project will strive to be a valuable resource for anyone and everyone who is interested in bringing about a fair and equitable justice system.  We hope you will visit our website at www.fairpunishment.org to learn more about our work, and that you will join us as we address one of the most critical issues of our time.

And here are titles and links to some of the notable sentencing-related content already up at the FPP website:

March 30, 2016 in Death Penalty Reforms, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

"Sentencing Reductions versus Sentencing Equality"

The title of this post is the title of this interesting and timely new paper by Susan Klein now available via SSRN.  Here is the abstract:

The Sentencing Reform Act of 1984 was enacted by an odd conglomeration of Democrat and Republican who agreed that federal sentences should be based upon relevant offender and offense characteristics, not including such things as race, gender, geography, ideological bent of the sentencing judge, or citizenship. That goal has become lost and less relevant in today’s world of draconian and mandatory minimum sentencing, especially in the drug trafficking, child pornography, and fraud arenas. Mass incarceration has run rampant. Sentences are so out-of-whack with most basic principles justice that the fact that female offenders may receive slightly lower prison terms than their male counterparts should no longer be the very top of our reform agenda.

This is not to suggest that scholars and the public shouldn’t be concerned with sentencing disparity, especially based on race. However, the disparity between federal and state sentences is so much wider (and occurs so much more frequently) than the disparity among similarly-situated federal offenders that the latter appears less of a significant issue in absolute terms. Whatever reform capital policy-makers and scholars retain should be poured into championing alternatives to criminalization (such as fines, drug treatment, and apologies) and alternatives to long prison terms (such as probation and parole). Reforms must focus on discovering what offenses we could safely decriminalize, and what programs are effective in keeping individuals out of prison in the first place (or in curbing recidivism once incarceration has occurred).

If giving judges more discretion at sentencing means lower average prison terms, this will probably rebound to the benefit of our minority populations as a whole, even if it might mean that in particular cases minority defendants receive slightly higher sentences for the same conduct as their white counterparts. Likewise, if sentencing, parole, and probation decisions based upon “risk assessment” leads to lower overall incarceration rates, we may have to tolerate this even if it generates higher risk numbers for certain minority offenders. Critics of every substantive criminal-law and sentencing reform proposal need to remember the big picture, and not lose sight of the forest of mass incarceration for the trees of unwarranted sentencing disparity.

March 30, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1)

Monday, March 28, 2016

Call for Papers for Symposium on "Private Prisons: The Corporatization of Criminal Justice and the New Marketplace for Crime"

I am very pleased to be able to post a timely call for papers sent my way by a former student who is now in law teaching and working hard in the arena of criminal justice reform and sentencing.  Here are the event/paper details sent my way:

Indiana Tech Law School will dedicate its 2016 Annual Symposium to the pressing issue of the prison industrial complex, and specifically the role of private prisons in mass incarceration. The symposium, titled Private Prisons: The Corporatization of Criminal Justice and the New Marketplace for Crime, will seek to contextualize the criminal justice system against the backdrop of the for-profit prison system, particularly the system’s reliance upon high rates of incarceration to sustain its business model.  The symposium seeks to address a broad range of questions, including how the profit-motive of private prisons influences the length and severity of sentences and availability of parole, how private prisons and mass incarceration disproportionately impact communities of color, and how private prisons contribute to social inequality and oppression.

The United States imprisons more people, both per capita and in absolute terms, than any other nation in the world.  Since the 1980’s, the government has increasingly turned to private corporations to build, maintain, and operate prisons to house the burgeoning prison population.  This unprecedented level of incarceration by for-profit corporations has important implications for law and policy, not only in the context of criminal justice but also in immigration detainment and deportation matters. Currently, forprofit prisons detain 6% of state prisoners, 16% of federal prisoners, and nearly half of all immigrants detained for documentation status.

The private prison system raises issues that touch upon criminal sentencing, immigration policy, the legitimacy of delegating carceral policy to the private sector, and fundamental liberty guarantees under the Fourteenth Amendment.  We seek papers that will contribute to the important dialogue about the legal system’s responsibility for both producing and correcting these outcomes.  Papers accepted for the symposium will be published in a special symposium edition of the Indiana Tech Law Review.

Workshop Contacts: andré douglas pond cummings (ADCummings @ indianatech.edu), Adam Lamparello (AXLamparello @ indianatech.edu) and Yvonne Lindgren (YFLindgren @ indianatech.edu)

Submission procedure: Email a proposal of up to 500 words as a Word or PDF document by May 1, 2016. Please include your name, institution, and contact information in the proposal and submit it via email to Lydia LaMont (LGLaMont@indianatech.edu) with the subject line “Symposium Call for Papers.” Decisions will be made by June 1st and working paper drafts are due by October 15th.

Symposium Details: The Symposium will be held at Indiana Tech Law School in Fort Wayne, Indiana on November 11th. The program will consist of panel discussions and a keynote address.

March 28, 2016 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Friday, March 25, 2016

"Poor white kids are less likely to go to prison than rich black kids"

The title of this post is the headline of this Wonkblog posting via the Washington Post discussing some recent empirical research on sentencing outcomes appearing in the latest issue of the journal Race & Social Problems.  Here is the post's discussion of the research:

It's a fact that people of color are worse off than white Americans in all kinds of ways, but there is little agreement on why. Some see those disparities as a consequence of racial discrimination in schools, the courts and the workplace, both in the past and present. Others argue that economic inequalities are really the cause, and that public policy should help the poor no matter their race or ethnicity. When it comes to affirmative action in college admissions, for example, many say that children from poor, white families should receive preferential treatment, as well.

In some ways, though, discrimination against people of color is more complicated and fundamental than economic inequality. A stark new finding epitomizes that reality: In recent decades, rich black kids have been more likely to go to prison than poor white kids. "Race trumps class, at least when it comes to incarceration," said Darrick Hamilton of the New School, one of the researchers who produced the study.

He and his colleagues, Khaing Zaw and William Darity of Duke University, examined data from the National Longitudinal Survey of Youth, a national study that began in 1979 and followed a group of young people into adulthood and middle age. The participants were asked about their assets and debts, and interviewers also noted their type of residence, including whether they were in a jail or prison.

The researchers grouped participants in the survey by their race and their household wealth as of 1985 and then looked back through the data to see how many people in each group ultimately went to prison. Participants who were briefly locked up between interviews might not be included in their calculations of the share who were eventually incarcerated.

About 2.7 percent of the poorest white young people — those whose household wealth was in the poorest 10th of the distribution in 1985, when they were between 20 and 28 years old — ultimately went to prison. In the next 10th, 3.1 percent ultimately went to prison.

The households of young people in both of these groups had more debts than assets. In other words, their wealth was negative. All the same, their chances of being imprisoned were far less than those of black youth from much more affluent circumstances. About 10 percent of affluent black youths in 1985 would eventually go to prison. Only the very wealthiest black youth — those whose household wealth in 1985 exceeded $69,000 in 2012 dollars — had a better chance of avoiding prison than the poorest white youth. Among black young people in this group, 2.4 percent were incarcerated.

Hispanic participants who were less affluent in 1985 were more likely to be eventually incarcerated than their white peers with similar wealth, but less likely than black participants....

It could be that the white participants in the study still had other advantages over their black peers, even if they had been incarcerated. Perhaps they went to better schools, or lived in areas where it was easier to find work. At the same time, another reason for the disparity between black and white wealth could be that employers make negative inferences about black workers' pasts, even those who have never been to prison....

In a way, untangling economic and racial inequalities is a chicken-and-egg problem. In criminal justice, though, you can't just explain away the disproportionate rates at which black and Hispanic youths end up in prison by pointing out that many people of color did not grow up with the same economic advantages as their white peers.

The full research article discussed here, which is titled "Race, Wealth and Incarceration: Results from the National Longitudinal Survey of Youth," can be accessed at this link.

March 25, 2016 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1)

Thursday, March 24, 2016

Pew develops new "punishment rate" metric to provide more nuanced perspective on state incarceration levels

Via email today I learned of this intriguing new report from the folks at Pew Trusts titled "The Punishment Rate: New metric evaluates prison use relative to reported crime." Here is the short data-heavy report starts and ends:

Researchers, policymakers, and the public rely on a variety of statistics to measure how society punishes crime. Among the most common is the imprisonment rate — the number of people in prison per 100,000 residents. This metric allows for comparisons of prison use over time and across jurisdictions and is widely seen as a proxy for punishment. States with high imprisonment rates, for example, are considered more punitive than those with low rates.

A more nuanced assessment of punishment than the ratio of inmates to residents is that of inmates to crime— what The Pew Charitable Trusts calls the “punishment rate.” This new metric gauges the size of the prison population relative to the frequency and severity of crime reported in each jurisdiction, putting the imprisonment rate in a broader context.

Using the punishment rate to examine the U.S. criminal justice system, Pew found that all states became more punitive from 1983 to 2013, even though they varied widely in the amount of punishment they imposed. The analysis also shows that the nation as a whole has become more punitive than the imprisonment rate alone indicates....

The long-term rise in U.S. imprisonment is a familiar story. Although the imprisonment rate is an essential tool in understanding correctional trends, it paints an incomplete picture of the nation’s and individual states’ punitiveness because it does not take crime rates into account. The punishment rate provides a more nuanced assessment by placing each jurisdiction’s imprisonment rate in the context of the severity and frequency of its crime.

Analysis of punishment rates over time and across jurisdictions makes clear that the nation has become more punitive. What’s more, many states punish crime significantly more—or less—than their imprisonment rates alone indicate. States with particularly high or low punishment rates and those that experienced significant increases in their punishment rates over time may benefit from identifying and examining the policy choices responsible for their rankings and trends.

Helpfully, the folks at The Marshall Project have this interesting piece discussing what the new Pew metric does and does not tell us. That piece is headlined "The Tricky Business of Measuring Crime and Punishment: Pew researchers release a new prison scorecard, but it ain’t perfect," and here are excerpts:

We’ve grown accustomed to a quantified world of ever more complicated data available at our fingertips, on everything from how we sleep and eat to how often left-handed pinch hitters hit ground rule doubles on rainy days.  “The incredible databases of what we have for sports just blow away anything there is in criminal justice.  It's kind of crazy,” said Adam Gelb, director of Pew’s Public Safety Performance Project, adding, “We can't answer some of the most basic questions about one of the most important functions of a society.”

Nearly five years ago, Gelb and Pew started by looking at recidivism — how often people released from prisons are arrested again for new offenses. But using recidivism alone to compare how states are doing at rehabilitating prisoners fell short.  One state could have a lower recidivism rate simply because it tended to have more low risk offenders in its prisons.  So then, Gelb said he began thinking about how to assess whether the “right” people are in prison, that is the serious, violent and repeat offenders most likely to commit new crimes.

Pew’s punishment rate focuses on the most serious felony offenses that lead to a year or more in state prison.  The calculation divides each state’s imprisonment rate in a given year by the rate of crimes reported there, using the FBI’s Uniform Crime Reporting system.  To account for some crimes being more serious and more likely to lead to longer prison sentences, Pew weights the annual crime rates by calculating the average time served for those crimes each year.  After all of these calculations, Pew found that as America's imprisonment rate has gone up in the past three decades and as crime has dropped, the “punishment rate” rose by 165 percent.

While the methodology makes sense and is probably the best available considering the shortcomings of federal crime data, the punishment rate is not yet the magic metric. Unpacking the components of Pew’s punishment rate illustrates how tricky measuring criminal justice progress can be.  The punishment rate depends on the number of crimes reported by the FBI.  But the Uniform Crime Report, created in the 1920s, tracks only seven key crimes: murder, assault, rape, robbery, arson, burglary, larceny, motor vehicle theft.  It excludes dozens of offenses — most notably drug crimes, which have been a major factor in the growth of prison populations.  Pew’s report readily acknowledges that the Uniform Crime Report omits crimes for which roughly one-fifth of state prisoners are serving time.

“What that means is not to say that drug trafficking is not a serious crime, just that it's not reported and tracked in a way that you can support adding it to this formula,” Gelb said.  “It does mean that — other things being equal — a state that has a lot of drug enforcement activity and stiff sentencing for drug offenses will have a higher punishment rate.”

The other trouble with the punishment rate is in the lag between crime and judgment.  Pew is comparing the crime rate each year to the current prison population at that moment. It doesn't account for the people being sentenced each year or the prison intakes.  It also doesn't look at what crimes those in prison were convicted of.  So there is an inherent lag between when crimes happen and when someone might go to prison for them. Despite plummeting crime since the 1990s, the growth in the punishment rate didn’t overtake the rise in imprisonment until 2011.  That may be partially explained by the gap in time between crime and incarceration, though Gelb contends that effect is ameliorated by calculating rolling averages for offense severity (but not the crimes themselves or the imprisonment rate). He said the adjustment is meant to be a barometer of the seriousness of crimes in a year rather than a “fine-tuned calculation.”  But that lack of precision could undercut Pew’s implicit argument that in some states we are “punishing for punishment’s sake.”

I find especially important and notable Gelb's astute comment that the "incredible databases of what we have for sports just blow away anything there is in criminal justice." Especially as I am starting to prepare for my upcoming fantasy baseball draft, it is more than a bit disconcerting that I can easily find dozens of statistical projections for the Cleveland Indians' battery but no on-line sources to help predict how many batteries might be committed in Cleveland.

March 24, 2016 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4)

Tuesday, March 22, 2016

"Looking Forward: A Comprehensive Plan for Criminal Justice Reform in Ohio"

The title of this post is the title of this notable new report produced by the ACLU of Ohio and the Ohio Justice and Policy Center. Here is the report's introduction:

Ohio has a mass incarceration crisis.  There are currently 50,600 Ohioans in prisons designed to hold 38,600; that’s at least 12,000 too many of our neighbors and fellow citizens in cages.  And beyond these inhumane numbers, there is a fundamental misuse of criminal-justice tools to attack social and health problems.  We have responded to poverty, drug and alcohol addiction, mental illness, or an overall lack of opportunities with punishment.

Instead of treating people with mental illness, we criminalize them and block access to the care they so desperately need. We allow low-income people to be victimized by steep fines and costs, with many languishing in local jails because they cannot afford to pay a court fine or make bond.  People who have a small amount of drugs are not given treatment for their addiction, but instead offered prison sentences and a felony conviction.  Those who try to re-enter society have the door slammed shut by mounting collateral sanctions that prevent them from getting a job, housing, education, reliable transportation, and more.

The result is a system that is costing our state in every sense of the word.  Ohio has the sixth largest prison population in the nation. In the last decade, the prison population has increased 12 percent despite the fact that the violent crime rate has reached a 30-year low.  In 2014, taxpayers spent over $1.7 billion to operate the state prison system alone. Every dollar spent on prisons is a dollar not spent on crime-survivor services, schools, addiction treatment, mental healthcare and other services that enrich our communities and that keep people out of the criminal justice system in the first place.  Nowhere are the negative effects of mass incarceration felt more than in communities of color. African Americans account for nearly half the state’s prison population but only a little more than a tenth of the total state population.  Mass incarceration has decimated neighborhoods, leaving many communities of color with countless people unable to find employment and cycling in and out of the justice system.  

State leaders have begun to recognize that mass incarceration is simply not working and must be dismantled.  In 2011, a bi-partisan group of legislators, along with advocates and activists, passed House Bill 86 (HB 86).  This legislation was part of the federal Justice Reinvestment Initiative that sought to reform state criminal justice systems and provide resources for strategies that depopulate prisons and jails.  While HB 86 promised modest reforms, it was never fully implemented or funded, and despite a short plateau, Ohio’s prison population is growing.

The time for modest, incremental steps is over.  We must challenge ourselves to imagine a fundamentally different justice system that is truly just, and not merely focused on punishment.  We must usher in an era of being smart on crime, not just tough on crime, where accountability does not mean punishment for punishment’s sake.  We can create forms of accountability that restore the law-breaker to being a productive member of society while also offering more robust healing and restoration to crime victims.

Currently, the Ohio General Assembly has created a Criminal Justice Recodification Committee that is tasked with rewriting our criminal laws.  Once again, state leaders have invited members of that committee to use this opportunity to change our justice system.  However, the problem does not begin or end simply with the contents of Ohio’s criminal code, nor does the solution reside solely with the Committee.  Their work represents a meaningful opportunity to bring about substantive reform — that opportunity must not be squandered on narrow, technical edits to statutory language.  Now is the chance for the legislature to precisely identify and fundamentally change the policies that drive excessive incarceration.  It is with this approach that we can perhaps finally begin looking forward to a new justice system that makes our communities stronger and lifts up the people of Ohio, rather than keeping them down.

March 22, 2016 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (0)

Thursday, March 17, 2016

Thoughtful nuanced comments from George Will on modern crime and punishment

The Washington Post has published this astute new commentary by Geoge Will under the headline "Sentencing reform alone won’t fix crime and punishment in America." I recommend the full piece, and here is how it starts and ends:

Sen. John Cornyn recalls visiting a Texas prison where some inmates taking shop classes could not read tape measures. Cornyn, who was previously a district court judge and Texas Supreme Court justice, knows that prisons are trying to teach literacy and vocations, trying to cope with the mental illnesses of many inmates and trying to take prophylactic measures to prevent drug-related recidivism by people imprisoned for drug offenses.  “The criminal-justice system,” he says, “has become by default a social services provider.”

It is not, however, equipped to perform so many functions.  Cornyn, a Republican, is part of a bipartisan congressional group negotiating sentencing reform, one of many needed repairs of the criminal-justice system.  What justice requires, frugality encourages: Too many people are in prison for too long, and too often, at a financial cost disproportionate to the enhancement of public safety....

Old theories about the causes of crime need to be rethought.  During the Great Depression, unemployment soared to 25 percent, yet in many cities crime fell.  Demographic factors?  Crime rates often vary with the size of society’s cohort of young males: Crime declined considerably during World War II not just, or even primarily, because unemployment was negligible but also because so many young males were in military discipline.

In 2010, one year after the Great Recession’s jobs destruction doubled the unemployment rate, the property crime rate fell and violent crime reached a 40-year low.  Current high incarceration rates had something to do with that.  But how much?  James Q. Wilson, the most accomplished social scientist since World War II, accepted the estimate that increased incarceration explains “one-quarter or more of the crime decline.”  Wilson also suggested an environmental factor: “For decades, doctors have known that children with lots of lead in their blood are much more likely to be aggressive, violent and delinquent.”  Since the 1970s, lead has been removed from gasoline and paint for new homes, and “the amount of lead in Americans’ blood fell by four-fifths between 1975 and 1991.”  Wilson cited a study that ascribed more than half the 1990s’ decline in crime to the reduction of gasoline lead.  Clearly, sentencing reform is just one piece of a complex policy puzzle.

March 17, 2016 in National and State Crime Data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2)

Wednesday, March 16, 2016

"The Emerging Eighth Amendment Consensus Against Life Without Parole Sentences for Nonviolent Offenses"

The title of this post is the title of this article authored by Bidish Sarma and Sophie Cull recently posted on SSRN. Here is the abstract:

As the nation moves away from the policies that built a criminal justice system bent on mass incarceration, it is an appropriate time to reassess a sentencing regime that has doomed thousands of individuals convicted of nonviolent offenses to die in prison.  Over the last thirty years, those policies have resulted in more than 3,000 offenders across the country receiving life sentences without the possibility of parole when they were convicted of a nonviolent crime. While it seems clear to many today that this harsh punishment is inappropriate for offenses that involved no physical harm to other people, the individuals serving these sentences continue to face life and death in prison.  The Eighth Amendment offers these offenders an opportunity to demonstrate the unconstitutionality of their punishment to the Supreme Court — the institution in the best position to redress these excessive sentences of a bygone era.

This Article analyzes the claim that there is a national consensus against life without parole sentences for individuals convicted of non-violent offenses.  First, it defines the problem, exploring how and why some offenders received life without parole sentences for nonviolent crime.  This entails a look at the historical development of a series of harsh sentencing policies that made nonviolent offenses punishable by life without the possibility of parole.  The historical developments are then traced through to current times to explain the seismic shift in how leaders in all three branches of government approach punishing low-level and nonviolent crimes.

This Article situates the punishment in the Eighth Amendment context.  How have the Supreme Court's previous Eighth Amendment rulings framed the relevant constitutional questions?  And how can a change in the way the Court considers the link between the nature of the offense and the challenged punishment create new possibilities?  This Article explores how treating individuals sentenced to life without parole for nonviolent offenses as a discrete category based on the nature of the crimes can alter the Eighth Amendment framework that the Court will use to determine the punishment's constitutionality.  The unfavorable "gross disproportionality" cases that have previously been considered by the Court do not need to govern the claim and, therefore, do not foreclose the possibility that the Constitution itself prohibits these sentences.

After exploring how to understand the constitutional claim in a way that brings the Supreme Court's categorical approach to bear (rather than the gross disproportionality approach), this Article assesses the factors the Court considers in its consensus-based categorical test.  It sets out, and then evaluates, the various indicators of consensus upon which the Court relies: the number of jurisdictions that legislatively authorize a punishment; the number of sentences actually imposed; and the degree of geographic isolation.  It also evaluates the various considerations that assist the Court in making an independent judgment of the punishment.  Ultimately, based on binding Eighth Amendment precedent, sufficient evidence is available now to enable the Court to strike down life without parole sentences for nonviolent offenses.  In other words, there is an emerging consensus that the Court should recognize.

March 16, 2016 in Offense Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Tuesday, March 15, 2016

Interesting account of effort to take sentencing reform directly to voters in Oklahoma

This article from The Frontier provides an interesting account of sentencing reform efforts in Oklahoma and why supporters of reform are turning to direct democracy to move forward.  The piece is headlined "After several stalled attempts, Oklahoma group taking prison reforms to vote of the people," and here are excerpts:

Kris Steele stepped up to the microphone in a packed room at Tulsa’s Women in Recovery office and declared this time, in 2016, Oklahoma was going to break through the “political gridlock” by taking criminal justice reform to a vote of the people....

For more than five years, Steele, a former speaker of the state House of Representatives, has been talking about the importance of criminal justice reform for Oklahoma’s fiscal bottom line, its citizens and children.  Now, facing a $1.3 billion budget crisis and prisons packed above 120 percent of capacity, it appears Oklahoma is finally ready to listen.

Steele, along with a bipartisan coalition of state power players, is hoping Oklahoma voters will accomplish what elected officials did not in several prior attempts: reducing the state’s staggering prison population.  They hope to redirect some of the savings toward addressing root causes of crime, shifting the state toward a corrections system that focuses on rehabilitation, not solely punishment.

As chairman of Oklahomans for Criminal Justice Reform, Steele is leading efforts to collect more than 65,000 petition signatures that would allow two state questions to be added to November’s ballot.  State question 780 would reclassify certain low-level offenses as misdemeanors instead of felonies, such as drug possession and smaller property crimes. The idea is that reclassification would reduce Oklahoma’s prison population and trigger cost savings, badly needed in a state facing a budget crisis where leaders are considering trimming school days to make ends meet.

State question 781 would then invest those prison cost savings in programs designed to address the root causes of crime — including addiction, mental health issues and poverty — and programs that provide job training and education to offenders as they leave prison....

Other states, including Texas and North Carolina, have used their own Justice Reinvestment Initiatives to realize significant savings on corrections spending.  North Carolina’s reforms, passed in 2011, have helped the state close nine prisons and officials expect to save $560 million in averted costs and cumulative savings by 2017, according to the Council on State Governments.  Those savings have also made it possible for North Carolina to re-invest nearly $4 million into community-based treatment programs, the council reported.

After Texas officials implemented sentencing reforms in 2007, including probation, drug treatment, pre-trial diversion programs and intermediate sanction facilities, cost savings from the measures allowed Texas to close three existing prisons and scrap plans to build three new ones.

As Oklahoma has watched other states — including Texas — implement those reforms, the political climate surrounding criminal justice reform here has changed, Steele told The Frontier in an interview.  Steele, who left office due to term limits, became the executive director of The Education and Employment Ministry in Oklahoma City.

“When we first started having this conversation in 2009 to 2011, our prisons were at 99 percent capacity.  Now, they’re over 122 percent capacity,” he said.  “The fact that the problem has not gone away — in fact, it’s gotten worse — causes us to be more willing to have this conversation.”...

“I think the public is ready to have that conversation.  I think the public is way ahead of the legislature on this issue. There’s actually a pretty significant disconnect between the voters and elected officials on this issue.”  Hence taking the issue to the voters through the two state questions....

Now several bills in the legislature aim to achieve similar goals of the two state questions backed by Oklahomans for Criminal Justice reform.  But Steele’s group wants to put the decision directly in the hands of voters.  And he’s got the backing of organizations like Right on Crime and the ACLU of Oklahoma.

“It’s a little more work, but in the end we think it’s going to be well worth it,” he said.  “The people of Oklahoma ought to be able to have a direct say so in this issue.”  It is the citizens who pay the $500 million each year to fund Oklahoma’s prison system, after all.

The Rev. Ray Owens, pastor of Tulsa’s Metropolitan Baptist Church, was one who offered an “amen” after Steele and Neal spoke to the crowd at Women in Recovery last week.  “Instead of investing more money in prisons, I believe it’s time for us to invest more in our people,” Owens said.

March 15, 2016 in Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)

Saturday, March 12, 2016

Notable example of "prison industrial complex" using "phony-baloney numbers” to grow or protect its budget

Prison-profitsBill Otis here at Crime & Consequences flagged this interesting local article from Indiana headlined "Prison officials say lighter sentences aren't saving money." The article discusses a report issued by the Indiana Department of Correction asserting that "costs have more than tripled since it began diverting low-level offenders out of state prisons and back into their communities" as a result of a sentencing reform law enacted in 2014. Bill seems to think this article reveals that sentencing reforms do not deliver on promised cost savings, but a read of the full article (and not just the parts highlighted by Bill) reveals that some funny math is behind the latest cost claims now coming from the Indiana DOC:

Senate Judiciary Chairman Brent Steele, R-Bedford, calls it “ridiculous” and says the report contains “phony-baloney numbers.”

Lawmakers who pushed to lower penalties for drug-related crimes, such as drug possession and theft, vowed to return anticipated savings from prison costs to communities for treatment programs, community corrections and local lock-ups.  But, according to the department's report, there's no money to send. This despite a reduction in the prison population of more than 5,000 inmates – a 17 percent drop - since the law went into effect in July 2014....

Corrections officials say the new law will cost an additional $400,000 in the first six months of this year - for jail costs alone. That expense is expected to climb before the year’s end. That’s because the state spends about $35 a day to house a convicted, low-level offender in a county jail, according to the Correction Department report. The department claims it can house the same inmate in a prison for just under $10 a day.

Steele and other lawmakers who were deeply involved in crafting the sentencing reform law are irked by those claims. Two years ago, when Correction Department officials asked lawmakers for money, they reported it cost about $60 a day to house a state prisoner.

A year ago, prison officials said they needed an additional $51 million to build a new state prison. Steele and others rejected the proposal, predicting that the state would be able to close a prison – and save millions – as sentencing reform took hold. Steele said the department now is refusing to cooperate with the intent of the sentencing reform law.

Corrections officials don’t see it that way. The department's legislative director, Jon Ferguson, said the $10-a-day rate used in the report is a “marginal per diem” that doesn’t include the fixed, operational costs associated with running big prisons. And the number of those prison facilities the state operates hasn’t gone down since the sentencing reform law was put into place.

Promised savings from sentencing reform was key to getting it passed and to winning support from sheriffs, judges and local officials who feared it presented another unfunded mandate by the state. The Legislature set aside an initial $60 million for communities to offset initial costs. But lawmakers assured critics that the sentencing reform would eventually pay for itself.

House Judiciary Committee Chairman Greg Steuerwald, R-Avon, who helped craft the sentencing reform law with Steele, also questioned the validity of the Corrections Department's report. But, he noted, “We’re in a transition year.” “I expect to see much different numbers by next year," he said.

March 12, 2016 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Thursday, March 10, 2016

Rep Lamar Smith makes case against federal sentencing reform by questioning success of Texas reforms

One recurring theme of many advocates for federal sentencing reform is that state-level reforms, lead notably by Texas, have been successful at reducing incarceration levels without seeing an increase in crime. But at the end of this new Washington Times commentary, headlined "How weak prison terms endanger the innocent: Mandatory minimums keep the guilty behind bars to pay their debt to society," US House Representative Lamar Smith from Texas questions whether Texas reforms have truly been effective. Here are some notable excerpts from the piece:

Congress should be wary of reducing federal prison sentences. Unfortunately, much of the discussion on sentencing laws has focused on the criminals. What about the victims of their crimes? What about the dangers of putting these offenders back out on the streets where many prey again on law-abiding citizens?

The lives and property of innocent Americans are at stake.  Past experience should persuade us not to weaken penalties, which could lead to thousands of dangerous criminals being released into our communities....

Supporters of lower prison sentences also argue that judges need more discretion.  They say that a one-size-fits-all penalty does not allow for consideration of mitigating factors, which might be necessary to determine a fair sentence.

But prior experience with judicial discretion in sentencing counters this claim.  It is exactly the problem of too much discretion in the hands of activist judges that fueled the decades-long crime wave that preceded mandatory minimum sentences.  Furthermore, judicial discretion led to widespread discrepancies in sentences, even when the circumstances were similar.

The minimum sentencing structure ensures that judges apply a uniform penalty based on the crime, not on the judge’s subjective opinion.  Criminals receive equal punishment for equal crimes.  And the removal of hardened criminals from our streets for longer periods of time helps make our neighborhoods safer....

In my home state of Texas, new policies sought to reduce incarceration time and focus resources on treatment and post-release supervision.  Yet almost one-quarter of inmates released have been rearrested and sent back to prison within three years.  Early release programs don’t appear to be working.

Mandatory minimums help keep these individuals behind bars where they belong.  That’s one explanation for why crime rates remain down.  The purpose of criminal law is to punish bad behavior, deter criminal acts and protect the American people.  Releasing prisoners too soon could condemn many Americans to becoming victims of violence.  This can be avoided if prisoners are not released before their sentences have been served.

March 10, 2016 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (3)

Wednesday, March 09, 2016

US Sentencing Commission released big new and timely report on "Recidivism Among Federal Offenders"

I just received via e-mail an alert concerning an important new publication by the US Sentencing Commission, and here is the full text of the email with links from the original:

Today, the United States Sentencing Commission issued a report on the recidivism of federal offenders. The study is groundbreaking in both its breadth—studying all 25,431 U.S. citizen federal offenders released in 2005, and in its duration—following the releasees over an eight year period. News release.

The Commission found that nearly half (49.3%) of offenders released from prison or placed on a term of probation in 2005 were rearrested within eight years for either a new crime or for some other violation of the technical conditions of their probation or release. Summary and key findings.  

The Commission also found that:

  • Most offenders who recidivated did so within the first two years of the follow up period;
  • Assault was the most common serious rearrest offense but most rearrest offenses were non-violent in nature;
  • An offender’s criminal history as calculated under the federal sentencing guidelines was closely correlated with recidivism rates (rearrest rates ranged from 34% for offenders in the lowest criminal history category to 80% for offenders in the highest criminal history category);
  • An offender’s age at the time of release was also closely correlated with recidivism (rearrest rates ranged from 67% for offenders younger than 21 to 16% for offenders older than 60).

Download the full report.

I am going to need some time to really dig into this document to assess what it could and should mean for on-going debates over federal sentencing reforms. But even before I do a deep dive, I am eager to robustly compliment the Commission for producing such a data-rich and timely report for the benefit of everyone thinking about the current state and future direction of the federal sentencing system.

March 9, 2016 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Saturday, March 05, 2016

"From Mass Incarceration to Mass Control, and Back Again: How Bipartisan Criminal Justice Reform May Lead to a For-Profit Nightmare"

The title of this post is the title of this notable new and timely article now available via SSRN and authored by Carl Takei.  Here is the abstract:

Since 2010, advocates on the right and left have increasingly allied to denounce mass incarceration and propose serious reductions in the use of prisons.  This alliance serves useful shared purposes, but each side comes to it with distinct and in many ways incompatible long-term interests. I f progressive advocates rely solely on this alliance without aggressively building our own vision of what decarceration should look like, the unintended consequences could be serious.
This Article describes the current mass incarceration paradigm and current left-right reform efforts. It then outlines how, if progressives do not set clear goals for what should replace mass incarceration, these bipartisan efforts risk creating a nightmare scenario of mass control, surveillance, and monitoring of Black and Brown communities.  Finally, the Article explains why this mass control paradigm would lay the groundwork for a heavily-privatized, extraordinarily difficult-to-end resurgence of mass incarceration in subsequent decades.

March 5, 2016 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Scope of Imprisonment, Who Sentences? | Permalink | Comments (7)

Thursday, March 03, 2016

Indiana county prosecutor seeks re-election by bragging about "proudly over-crowding our prisons"

-radleybalkoflickrAs reported in this Reason blog posting, a local prosecutor in Indiana is pursuing reelection by bragging about being proud to overcrowd the state's prisons. The full headline of the posting, along with the picture, provides the essentials of this notable story: "Indiana Prosecutor Bradley Cooper Is 'Proudly Over-Crowding our Prisons': Cooper's new campaign flyer brags about the people he's put in prison for decades over drug sales and minor theft." Here is more from the blog post about this local prosecutor and his record:

As American conservatives and liberals alike embrace criminal justice reform, those opposed are blatantly bragging about their overcriminalization agendas. One particularly gross example: a new campaign mailer from Johnson County, Indiana, Prosecutor Bradley D. Cooper, which announces that he has been busy "proudly over-crowding our prisons."

The flyer also features mugshots from convicted criminals, along with what they were found guilty of and what prison sentence they were given. It includes a man who was sentenced to 40 years in prison for selling meth, a man convicted of manslaughter who died while in prison, and a man who received a 40-year sentence for burglary.

In the latter case, William A. Russell was arrested after breaking into someone's home and stealing $52. For that offense, he was sentenced to 20 years in prison. A trial court also determined that he was a "habitual offender," which qualified him for a sentencing enhancement of 20 years.

Another of the offenders featured is Amanda Smith, a schizophrenic woman who drowned her son in 2012 while he was on a court-ordered overnight visit from foster care; she claimed it was God's will and turned herself in immediately afterward. Smith's lawyers argued for her to be sent to a state mental hospital, but a judge sentenced her to 55 years in state prison instead.

Last year, Cooper made a fuss that a man accused of forcible rape was only eligible to receive 63 years behind bars, pursuant to a 2014 change to Indiana's criminal code. Previously, the man could have received a maximum sentence of 168 years in prison. Cooper called the sentencing-reform measure the "hug a thug" law and accused the state of coddling violent criminals.

For more about this local prosecutor professional history and accomplishments, his office's website includes this bio and this resume for Bradley D. Cooper. Interestingly, I believe that Prosecutor Bradley attended the same law school as frequent blog commentor federalist, and thus I would be especially eager to hear from federalist (or others) whether they think this kind of campaign slogan is unsavory or perhaps even unethical.

March 3, 2016 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (8)

Wednesday, March 02, 2016

Mark Holden, GC at Koch Industries, makes "The Factual Case for Criminal Justice Reform"

As regular readers know, various groups and persons associated with the wealthy and politically active Koch brothers have been very supportive of state and federal sentencing reform efforts. Continuing in that tradition, Mark Holden, who is senior vice president and general counsel at Koch Industries, Inc., has authored this new Medium commentary titled "The Factual Case for Criminal Justice Reform."  I recommend the piece is full (with all its links), and here are excerpts:

These days, it’s hard to find legislation in Washington, D.C. that has bipartisan support. It’s even harder to find legislation that will help people improve their lives instead of making their lives worse.

Yet that’s exactly what both houses of Congress are currently doing through criminal justice reform legislation.  The Senate is considering the Sentencing Reform and Corrections Act.  It contains a series of long overdue reforms that have been tried at the state level and have been proven to reduce crime, lower spending on incarceration, reduce incarceration rates, and give people a better chance at leading a productive and fulfilling life once they’re released from prison.

There’s little doubt that the current system is dysfunctional.  American criminal justice is too often inconsistent with the promises of the Bill of Rights.  We have a two-tiered system, with the wealthy and the well-connected experiencing a much better system than the poor, oftentimes regardless of guilt or innocence.  A growing number of Americans recognize this  —  nearly 80 percent of the country supports reform.  So do many prosecutors and judges.  For example, liberal federal Judge Rakoff of the Southern District of New York and conservative Judge Kozinski of the Ninth Circuit Court of Appeals have raised awareness that innocent people are pleading guilty to crimes they didn’t commit because they cannot effectively defend themselves against the power of the government.  That is why calls for reform are growing so loud from both ends of the political spectrum that Congress can no longer ignore these problems, which have festered for more than three decades.

The numbers speak for themselves. Over the past decades more and more Americans are put behind bars, sometimes for crimes they didn’t commit or with punishments that are not consistent with the crime. The result has been a skyrocketing prison population that ruins lives and wastes money. At the federal level alone, the number of prisoners has increased by 795 percent in the past 35 years. Federal and state spending on prisons also increased over this timeframe to $8 billion annually, which is 3 to 4 times more per capita than we spend on education. America is now the world’s largest jailer, with only 5 percent of the world’s population but a whopping 25 percent of the world’s prisoners. And there are as many Americans with a college degree as there are Americans with a criminal record.

As more people get caught in this system, it breaks apart families, destabilizes communities, increases poverty, and makes it harder — if not impossible — for people to rejoin society after they’ve served their sentence. Why? Because criminal convictions are accompanied by countless collateral consequences that burden people for the rest of their lives.

Unfortunately, not everyone recognizes the need for reform. As demand for reform grows louder, the defenders of the status quo are mobilizing. Their argument is simple: Reforming the criminal justice system will endanger society and put people’s lives at risk. But these claims have no basis in reality. In fact, the Sentencing Reform and Corrections Act will have the opposite effect.

Many of its most important provisions are modeled after successful reforms from states such as Georgia, Utah, Kentucky, and Texas. In the past decade, more than half of states have passed a variety of changes to their criminal justice systems. Some lowered mandatory minimums  —  non-negotiable sentences that can run into the decades  —  for low-level offenders.  Others gave judges greater discretion in sentencing. And still more tried a variety of other worthwhile reforms, including prison reform and expungement of past criminal records so worthy individuals seeking redemption could put their past mistakes behind them and have a fresh start when leaving prison.

The results speak for themselves.  While the federal imprisonment rate increased by 15 percent over the last decade, the state rate fell by 4 percent.  This didn’t lead to an increase in crime, either.  No less than 32 states saw drops in both the percentage of people imprisoned and the overall crime rate.  Put another way: Criminal justice reform made society safer.

We need federal reforms along the same lines. That’s what the Sentencing Reform and Corrections Act would do, which is why it has broad support from law enforcement.  It contains a variety of reforms that would enhance public safety and make the criminal justice system more fair and humane....

Will lawmakers seize this opportunity to make people’s lives better, or will they fall prey to fear-mongering?  For the sake of the least fortunate in society, I certainly hope they make the right choice.

Some prior related posts on Koch family efforts in support of criminal justice reform:

March 2, 2016 in Aspects and impact of Sentencing Reform and Corrections Act, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Tuesday, March 01, 2016

Former AG Mukasey delivers "clear" message to GOP on SRCA: "Law enforcement asks you to pass this bill."

The Hill has now published this notable new op-ed authored by Michael Mukasey and Ronal Serpas under the headline "Federal sentencing reform will aid law enforcement." Here are excerpts:

The Senate is back in session amid recent warnings from Sens. Ted Cruz (R-Texas), Tom Cotton (R-Ark.) and Jeff Sessions (R-Ala.) that federal sentencing reform would jeopardize public safety. They say the country cannot risk reform.

As a former attorney general under President George W. Bush who has overseen thousands of prosecutions, and a police chief with three decades of experience, we have dedicated our lives to the safety of this country.

We can firmly say that sentencing reform done right will not harm public safety. In fact, it will enhance it. We were some of the original supporters of the 1990s “tough on crime” laws. After decades of enforcing them, we and our colleagues — police chiefs and U.S. attorneys — now recognize many provisions, like overly harsh sentencing, went too far.

Much has been learned in the last 25 years about who should be locked up and for how long. The Sentencing Reform and Corrections Act recalibrates sentencing policy to meet the needs of the 21st century. Lowering mandatory minimum sentences for low-level crimes will reduce unnecessary incarceration. This will allow us to better direct law enforcement resources to arresting, prosecuting, and punishing the most serious and violent criminals.

That’s why we and 130 of our law enforcement colleagues wrote to congressional leadership urging them to pass the act. Those standing with us include two former U.S. attorneys general, two directors of the FBI, 21 sitting police chiefs and 68 former U.S. attorneys.

Our message to Republican leadership is clear: Law enforcement asks you to pass this bill. Targeted and appropriate sentencing is a superior approach to controlling crime....

The Sentencing Reform and Corrections Act offers a better path forward. It would reduce mandatory minimum sentences for repeat nonviolent drug offenders. And it would allow judges more discretion to depart from mandatory minimums for low-level offenders if — after hearing specific circumstances of the crime — they feel it is appropriate.

Contrary to what opponents have claimed, the Sentencing Reform and Corrections Act will not swing open the prison doors and release thousands of hardcore violent criminals onto the streets. Every single prisoner eligible for early release will be carefully scrutinized by judges. And only if the judges feel it’s appropriate will they release them. This judicial check ensures the worst criminals will remain where they belong — in prison — while those who pose little threat can get off the taxpayers’ tab and begin productively contributing to society.

The bill would also expand the use of mandatory minimums for offenders with previous convictions for violent crimes, and it creates new mandatory minimums for terrorism-related crimes, giving federal law enforcement additional mechanisms to keep those most dangerous behind bars.

Now is the time for Congress to act. Reducing the population of our overcrowded prisons is one of the few goals on which those on the left and right agree. We want to make it clear where law enforcement stands: Not only is passing federal legislation to reform mandatory minimum sentences necessary to reduce incarceration, it will also help us keep crime at its historic low.

Some recent prior related posts on SRCA:

March 1, 2016 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

Monday, February 29, 2016

Highlighting the enduring lack of transparency about pleas and the work of prosecutors ... and the problems this may create

The folks at The Crime Report continue to do a lot of notable reporting about a lot of the notable issues discussed at the recent Harry Frank Guggenheim Symposium on Crime in America at John Jay College of Criminal Justice.  This recent piece, headlined "A 'Draconian' System Where the Innocent Plead Guilty," reports on a keynote speech by Judge Jed Rakoff and discussion of the need to bring more light to the dark spaces of plea bargaining and prosecutorial practices. I recommend the piece in full, and here are some excerpts:

The U.S. criminal justice system is broken and needs to be fixed is a message you rarely hear from a well-respected senior federal judge. But that’s exactly what Judge Jed Rakoff of the Southern District of New York detailed during a keynote address at the 11th Annual Harry Frank Guggenheim Symposium on Crime in America at John Jay College of Criminal Justice on Friday

“We created this monster and it’s taken on a life of its own,” said Rakoff, speaking critically of judges who everyday impose “terrible sentences” and send people to prison for extremely long periods of time without questioning the system....

Rakoff detailed how he’s seen the system change in the past few decades, from a time where a much higher percentage of court cases went to trial (15 percent of court cases at the federal level 20 percent at the state level) to now where, after tough-on-crime laws swept the nation, only 3 percent of federal cases, and 5 to 6 percent of state cases, go to trial.  The rest are settled with plea bargains.  He called the plea bargaining process a “system of totally secret justice” where prosecutors, hold all the cards and are able to get a vast majority of defendants to plead guilty to charges when faced with extremely long sentences — imposed through sentencing guidelines or mandatory minimums.

Julie Seaman, a professor at the Emory University School of Law and Board President of the Georgia Innocence Project, said it’s now a system where “it’s completely rational for an innocent person to plead guilty,” because there is so much risk involved in going to trial.

The panel — also featuring Keir Bradford-Gray of the Philadelphia Defender Association, Matthew Johnson of John Jay College, exoneree Rodney Roberts and moderated by John Hollway, executive director of the Quattrone Center for the Fair Administration of Justice at the University of Pennsylvania Law School — detailed problems of this “assembly-line” style form of justice where police are under pressure to solve cases quickly, prosecutors are under pressure to clear cases and public defenders are overworked and under resourced.

And it’s all done behind closed doors, they say, away from public scrutiny.  “This is a system, because it’s so totally un-transparent, is it inevitably going to lead to some serious mistakes,” Rakoff said.

There has arguably never been more data and more transparency in the U.S. criminal justice system than there is now.  Researchers, journalists, politicians and the public have more access to data on prison and jail populations, as well as crime statistics including the number of reported crimes and arrests.  That data has played a large part in changing peoples’ minds about mass incarceration — and arguably without that data, you wouldn’t see elected officials of both parties rolling back sentencing laws. But data doesn’t exist for plea deals, which is where the decisions that dramatically impact millions of lives are made.  There is a plethora of information available to the public on how offenders enter the system and where they end up, but missing is information on what happens in the middle.

Rakoff says this is a problem that has fueled mass incarceration – and also because when innocent people decide to plead guilty in order to avoid long sentences, we never know the truth. He said there is too much disparity in pleas that are offered and we don’t know enough about what goes on behind closed doors. “No one ever knows what the truth is, no one ever knows what the facts are,” Rakoff said.

February 29, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

Sunday, February 28, 2016

Profiling a federal district judge eager to make the case for federal sentencing discretion

The Atlantic has this lengthy new article profiling a notable federal district judge and his notable disaffinity for rigid sentencing rules. The piece's full title highlights is themes: "One Judge Makes the Case for Judgment: John Coughenour says federal sentencing guidelines are overly punitive, coldly algorithmic measures that strip the courtroom of nuance. Without discretion, what’s the judiciary for?". Here is part of the start and middle of a piece that merits a full Sunday read:

Judge John Coughenour is a rebel. It’s not because — or not only because — he rides a Harley or spends his free time in prisons. It’s that the Reagan-appointed U.S. District Court judge has rebelled against federal sentencing guidelines ever since they were established in the mid-1980s.

But Coughenour had never earned national attention for his nonconformist ideas about sentencing and punishment — until, that is, al-Qaeda trainee Ahmed Ressam appeared in his courtroom in the spring of 2001. Over the course of the next 11 years, Coughenour would sit down to sentence Ressam to prison on three separate occasions, all for the same crime — two times to huge uproar and one time to clarify the sentence once and for all....

Coughenour was appointed during President Ronald Reagan’s first year in office, a few years before the federal sentencing guidelines were created.  The new system was meant to counteract the wild inconsistencies in the sentences handed down in different courts.  Instead of going simply by intuition, federal judges would now refer to a handbook that established a sentencing range.  And any discretion on the part of judges was intended to be restricted to the limits of that range.  But what some saw as a reasonable step toward greater justice, Coughenour saw as inhumane and robotic.  What’s the point of a judge if he is discouraged from offering his judgment?

Once on the fringe, Coughenour’s argument against sentencing guidelines is now gaining traction.  At the heart of the debate is an undecided question: Which is scarier — a world where a person’s actions are treated as part of a mathematical equation blind to context, or a world where political appointees decide people’s fates based on gut feelings?

Coughenour’s position is clear.  He believes that the standardization of sentences has resulted in less justice, not more, and that the way the nation sentences criminals today has created greater inequality, not less....

[T]wice a year for almost 20 years, Coughenour rode his Harley from Seattle to Sheridan to meet one on one with each of the men he had sentenced.  And then, he started visiting prisons all over the country with the same purpose.  To ensure candor, he insisted that the prisoners be unshackled and that the meetings be private.  A corrections officer stood outside just in case, but in two decades, Coughenour only had to call the officer in once.

During these meetings, the judge always asked the same questions: “How much time do you have left?  What are you doing to prepare yourself for getting out?  Are you dealing with anything you can’t handle?  Do you feel safe?” Sometimes, he’d compare notes about motorcycles — word traveled fast that the judge rode a Harley — and sometimes he’d just commiserate about prison food.  The next prisoner would be escorted in 15 minutes later, and the judge would start over again. Coughenour resists the implication that his visits — and the hundreds of hours he has spent asking hundreds of prisoners about their lives — have influenced his judicial philosophy.  But at the same time, Coughenour insists that the prisoners’ stories all carry a clear moral lesson: Too many people are in prison for too long.

February 28, 2016 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4)

Friday, February 26, 2016

"Internalizing Private Prison Externalities: Let's Start with the GED"

The title of this post is the title of this interesting and timely new piece by David Siegel recently posted on SSRN. Here is the abstract:

Prison education is a remarkably good investment for society, yet an increasing proportion of inmates have no access to it because the operators of the prisons in which they are held have a powerful incentive not to provide it: they make more money that way.  Critics and analysts of private prison operators have suggested various incentive structures to improve their performance, but most jurisdictions focus on the operator’s cost to the contracting entity. The social costs imposed by foregoing prison education are not part of the arrangement between a private prison operator and a jurisdiction with which it contracts.  Although these costs are real and substantial to the inmates who bear them, because the inmates are not parties to the contract, these costs are externalities.

Imposing these social costs on prison operators could improve the conditions for inmates in their custody and is very likely to improve these inmates’ success after release. Unlike more complex strategies for imposing incentives on correctional programs to reduce recidivism, prison education is a known, straightforward rehabilitative strategy whose provision can be measured quite easily at the point of release.  There is even a well-accepted metric for prison education administered by an independent third party: the General Educational Development Test (GED).  This article proposes using the GED to internalize the cost of reduced or poor inmate education by imposing financial penalties on private prison operators whose inmates do not obtain, or make progress toward, a GED during their incarceration. This would provide the social benefits of inmate education, alter private prison operators’ behavior at minimal administrative cost, and most importantly, benefit inmates being released.

February 26, 2016 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Thursday, February 25, 2016

"Does Smarter Sentencing Equal Lower Prison Numbers?"

The title of this post is the headline of this lengthy new piece by Adam Wisnieski at The Crime Report, which is largely a report on what various experts are saying about the impact of modern sentencing reforms on prison populations.  I recommend the piece in full, and here are some excerpts (with a few of the original's links preserved):

Most analysts agree that states have been much further ahead than the feds on these issues.  For the past year, members of Congress have been debating a variety of bills that would make changes to federal sentencing guidelines similar to some of the revisions already underway at the state level.  The proposed Sentencing Reform and Corrections Act has received widespread bipartisan support — but is now stalled by the resurgence of concerns that relaxing punishment standards would lead to an increase in crime.

There’s no shortage of voices about what type of impact that bill would have.  But few seem to look to states for lessons, regardless of the well-worn phrase about them being “laboratories of democracy.”  Have states been successful?  Experts contacted by The Crime Report had different views. 

Adam Gelb, director of The Pew Charitable Trusts’ Public Safety Performance Project said that the national conversation on criminal justice is undergoing a transformation. “We are really starting to see a culture shift in which policymakers are becoming eager to base decisions on data and evidence rather than emotion or ideology,” Gelb said in an interview. “There’s been a tremendous amount of progress but there’s still a long way to go.”

Other researchers disagree, saying there is more smoke than fire in state efforts.  Minor tweaks to sentencing policies, which they say is largely what states have done, have not worked to significantly impact the nation’s mass incarceration problem. “Most states have not made any progress,” says James Austin, who runs the Washington, D.C.- and California-based JFA Institute, a criminal-justice consulting firm. “Those that are making some progress, it’s been pretty miniscule.”

Michael Tonry, director of the Institute on Crime and Public Policy of the University of Minnesota argues the same thing.  In his new book, Sentencing Fragments: Penal Reform in America, 1975-2025, Tonry describes states’ approach to reducing prison population through minor changes to sentencing and release policies as “nibbling” around the edges of the problem.  “What’s being done is these little tiny tweaking around the edges, and then making big projections,” he said in an interview with The Crime Report. “That’s not how the world is going to change.”...

About 13 percent of our country’s prisoners are serving time in federal prisons. The other 87 percent, more than 1.3 million people according to the Bureau of Justice Statistics, are in state prisons.

That number of state prisoners hasn’t changed dramatically in the last decade; it’s leveled off. The number of people in state prisons is about the same as it was ten years ago.  From 2004 to 2014, the state prison population went up from roughly 1.32 million to 1.35 million, according to the Bureau of Justice Statistics.

That most recent number (1.35 million state prisoners in 2014) is down from its high water mark, 1.41 million in 2008.  Critics suspect the leveling off could be attributed to harsh sentences imposed in the 1980s and 1990s finally coming to an end. But defenders point to the nation’s decreased incarceration rate as real progress.  The nation’s adult incarceration rate, which includes offenders in not only state prisons, but federal prisons and local jails, dropped 10 percent from 2007 to 2014, from 1 in 100 to 1 in 111.  “The incarceration rate has declined steadily each year since 2008,” notes the most recent report on the correctional populations in the U.S. by the Bureau of Justice Statistics.

Last week, The Sentencing Project released an analysis on how well states have handled the problem of growing prison populations. “Relatively modest,” the report concluded.  “While 39 states have experienced a decline since reaching their peak prison populations within the past 15 years, in most states this reduction has been relatively modest,” reads the report. “The overall pace of change, though, is quite modest given the scale of incarceration.”

Tonry says one reason why reforms in certain states haven’t achieved projected gains is that stakeholders like prosecutors, judges and parole boards are not invested in changing the system.  “The problem with tweaking things is they have to be implemented by somebody,” he said....

One state that has gotten a lot of press recently for figuring out how to successfully reform harsh sentencing laws is Georgia.  In 2011, Georgia Gov. Nathan Deal signed a bill that modified mandatory minimum sentences on drug charges, gave judges more discretion in drug sentencing, raised the felony threshold for certain theft crimes.  Since the bill was signed, Georgia’s prison population has gone down every year, from 55,944 in 2011 to 52,949 in 2014, a slight decrease but a decrease nonetheless.

If that bill, along with another bill on juvenile justice in 2012, had not been passed, the state says its prison population would have gone up by 8 percent and cost $264 million more to expand capacity.  The policy change has saved the state millions, but according to a report last year by the state’s Council on Criminal Justice Reform, Georgia’s prison population is projected to go up every year over the next five years.

So at least for Georgia, success seems to be measured on figuring out how to slow the increase, but not to reverse the trend. There is reason for optimism, though. Despite those projections, the prion population has actually continued its downward trend — and policymakers haven’t given up. After initial reforms were passed in 2011, Georgia has passed reforms every year since 2011, something states like Kentucky haven’t done.   “Georgia is back year after year,” said Gelb. “That kind of reform-minded environment can have an impact well beyond specific changes to law and policy.”

February 25, 2016 in Data on sentencing, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (2)

Wednesday, February 24, 2016

Vera Institute of Justice launches "The Human Toll of Jail"

6a00d83451574769e201bb08323a26970dI received an email this morning announcing the launch of a notable new project by The Vera Institute of Justice. Here is the heart of the email (with a few links) detailing what the project is all about:

The Human Toll of Jail [is] a national storytelling project about the uses and abuses of jails in the United States, supported by the John D. and Catherine T. MacArthur Foundation’s Safety and Justice Challenge.

The Human Toll of Jail uses poignant essays, videos, comics, and photojournalism to tell the stories of Americans who have been caught up in local justice systems as well as highlight unexpected voices for reform from the frontlines — including judges, prosecutors, healthcare providers, and others.  Along with every story featured here, the project offers additional resources with research, policy analyses, and best practices that address the larger questions and issues around local jails.  Stories in the project include:

  • INSIDE THE MASSIVE JAIL THAT DOUBLES AS CHICAGO’S LARGEST MENTAL HEALTH FACILITY — Since drastic budget cuts left thousands of Chicagoans without access to reliable mental health care, all too many are getting their only real treatment when they land behind bars.

  • RETURN TO RIKERS — After two decades of incarceration, Patrick went back to Rikers Island for the first time in 20 years — to visit his son.  His story is told here as comics journalism.

  • THE JAIL WITHOUT BARS — At one Idaho correctional facility, an innovative approach is built on a commitment to the site’s workers and an investment in the inmates’ success.  The result is a jail that looks nothing like the ones you’ve seen on TV.

  • A NEW APPROACH TO PROSECUTION — Local prosecutors across the country wield enormous power to make decisions that affect the flow of people in and out of often-overcrowded jails. With that power in mind, the district attorney in one California county wants to upend the way we think about his job responsibilities.

  • JUDGING WITHOUT JAIL — Many states have made moves to end the fruitless cycle of arrest and incarceration by moving nonviolent defendants out of prosecution and into more productive intervention programs. One New Orleans judge has seen just how effective this approach can be.

February 24, 2016 in Offender Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (1)

Friday, February 19, 2016

Making the case for criminal justice "frugality"

The quoted portion of the title of this post is from the last line of this new USA Today commentary authored by criminologist James Alan Fox and sociologist Richard Moran.  The commentary is given the headline "that "Soft on crime turns out to be smart on crime," but I am not sure that really captures what the commentary is trying to say.  Here are excerpts so readers can judge for themself:

The shame of wrongful conviction has captured the public's imagination.... Many of the hundreds who have been exonerated and released from prison in the past several decades were prosecuted during a period of high crime rates and unprecedented fear.  At a time when a no-nonsense, "lock 'em up" criminal justice policy carried the day, the nation largely turned a blind eye to injustices.  We were far more intent on ensuring public safety than protecting the rights of the accused.  Meanwhile, a booming economy afforded close to a ten-fold expansion in state and federal prison populations.

Times have changed.  Crime rates are at a 50-year low, and, in part due to runaway correctional expenditures, a majority of states are struggling to balance their budgets.  This dire financial situation has forced politicians to seek out cost-saving measures, and the low crime rate has allowed them to do so without much public opposition.

The focus on innocence and exoneration actually reflects a much broader rethinking of our criminal justice policies in the context of low crime and limited resources.  When crime rates were rising, the cops were handed a mandate to do whatever it took to arrest criminals.  Now the police are being held accountable like never before. We are questioning their use of deadly force, and equipping them with body cameras to monitor their every move.

Similarly, the 1990s panic over youth and gang violence had us characterizing juvenile offenders as "superpredators" who were beyond redemption.  The popular slogan "adult time for adult crime" echoed a "get-tough" approach for punishing kids.  Recently, however, the U.S. Supreme Court abolished mandatory life sentences for minors.  And policy makers have recommitted to the original philosophy of juvenile justice, prioritizing the needs of young offenders rather than what punishment is deserved.

The 1990s also saw the rapid spread of a penal policy patterned after a well-known baseball refrain — "three strikes and you're out."  This metaphorical approach to sentencing felons helped nearly bankrupt many states, especially California where "three strikes" was most enthusiastically adopted.

Thousands upon thousands of Americans were taken prisoner in the "War on Drugs" declared in the early 1970s when crime rates soared.  Having surrendered this misguided campaign, the nation is now looking more toward treatment for addicts than punishment, and releasing nonviolent drug offenders from prison.

Many, if not all, of the recent shifts in philosophy reflect the fact that we simply can't afford to keep millions of Americans locked behind bars.  Mass incarceration may have contributed marginally to bringing down the crime rate, but it was hardly a cost-effective strategy.  Rehabilitation, despite its limitations, is significantly cheaper and far more attractive to cost-conscious lawmakers and their constituents.

For several decades, ever since Richard Nixon won the White House on a "law and order" platform, the predominant response to crime was decidedly punitive.  Today's proposed criminal justice reforms — from deincarceration to exoneration — would have been condemned as soft on crime.  Whether they will prove to be smart on crime, as reformers have promised, one thing is for sure: They are frugal, and frugality is definitely in fashion these days.

February 19, 2016 in Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Thursday, February 18, 2016

"U.S. Prison Population Trends 1999-2014: Broad Variation Among States in Recent Years"

The title of this post is the title of this notable short "fact sheet" from The Sentencing Project.  Here is the text that goes with the graphical state-by-state data in the document

The number of people in prison in the United States has stabilized in recent years, but incarceration trends among the states have varied significantly. While 39 states have experienced a decline since reaching their peak prison populations within the past 15 years, in most states this reduction has been relatively modest.  In addition, 11 states have had continuing rises in imprisonment.

Twelve states have produced double-digit declines within this period.  Four states have reduced their prison populations by over 20%: New Jersey (31% since 1999), New York (28% since 1999), Rhode Island (25% since 2008), and California (22% since 2006, though partly offset by increasing jail use).  Southern states including Mississippi and South Carolina, which have historically had high rates of incarceration, have also significantly downsized their prison populations.  These reductions have come about through a mix of changes in policy and practice designed to reduce admissions to prison and lengths of stay.  Moreover, the states with the most substantial reductions have had no adverse effect on public safety.

The overall pace of change, though, is quite modest given the scale of incarceration.  The total U.S. prison population declined by 2.9% since its peak in 2009.  Of those states with declining prison populations, 20 have had less than a 5% decline since their peak years.  The reduction in the federal prison population has been of this magnitude as well, 2.9% since 2011.  And of the states with rising prison populations, four have experienced double-digit increases in the last five years, led by Nebraska (22%) and Arkansas (18%). While sharing in the national crime drop, these states have resisted the trend toward decarceration.

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

February 18, 2016 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

Wednesday, February 17, 2016

Is federal bail reform key to making a serious dent in mass incarceration?

The question in the title of this post is prompted by this notable This Week commentary by Ryan Cooper, headlined "President Bernie Sanders couldn't stop mass incarceration by himself. But this one reform would be a very good start."  Here are excerpts (with a few links from the original):

[Many have] badly understated the extent to which federal policy affects incarceration outside of federal prisons — particularly jails.  It's a great opportunity for Sanders to clarify his message [about reducing incarceration] and seize on bail reform — a vastly overlooked part of the mass incarceration problem.  While it probably wouldn't move the U.S. from the top spot by itself, bail reform could make an enormous difference....

First, federal crime policy exerts a strong gravitational pull on state behavior.  Federal sentencing guidelines heavily influenced the state versions; state-level lawyers, judges, and policymakers tend to look to the higher-status federal system for cues and ideas, and there is much back-and-forth staff movement.  Hence, if the federal criminal justice system were to make a sharp turn against harsh punishments, it's virtually certain that would percolate through some if not most of the state systems and thus reduce the prison population over time.  Federal leadership matters here.

This effect also holds for bail policy, which is the primary determinant of the size of the jail population. As I covered extensively last year, about 62 percent of the people in jail are legally innocent.  A major reason why is the Bail Reform Act of 1984, which made it dramatically easier to keep people locked up before federal trials; most of the states followed suit.  Today, roughly two-thirds of the people in jail are there either because they are too poor to make bail, or because they've just been arrested and will make bail in the next few days.  Over the last 15 years, fully 99 percent of the growth in the jail population is due to increased incarceration of the legally innocent.

This is a human rights atrocity for many reasons, but perhaps the biggest one is that the first 48 hours or so in jail is extremely traumatic for people with no experience in the prison system. It's why the suicide rate in jails is 2.5 times greater than in actual prisons — witness Sandra Bland, an ordinary middle-class person who apparently committed suicide very soon after being thrown in jail.

Now, it would be unconstitutional for Congress to simply force states to change the way they do bail.  But there are four less direct avenues to pursue: First, pursue reform for federal prisoners, to take advantage of the percolation effect mentioned above.  Second, put conditions on the many grants the feds dole out for the states' criminal justice systems, requiring bail reform as a condition of getting the money. Third, pass a law declaring current use of money bail a violation of the 14th Amendment's due process protection, which Congress has power to protect.  Fourth, there is a very strong case that current bail policy is a violation of the 8th Amendment, so the Department of Justice could pursue a lawsuit and attempt to get a Supreme Court ruling allowing the feds to step in.  The last two of these are a bit of a long shot, but taken together this would be a powerful package.

But what would bail reform look like? There are two basic principles: First, work to make sure arrestees are processed as fast as possible — ideally within 24 hours, as many jurisdictions are moving towards.  Second, very sharply reduce the use of money bail. If used, it should never be beyond a person's ability to pay.  No person should ever rot in jail waiting for a trial because he can't scrounge up the cash to make bail — poverty should not be a crime.  Besides, research from the Vera Institute of Justice shows that bail is largely worthless for making sure that accused criminals show up to trial.  In most cases, it simply isn't needed — basic pretrial supervision works much better.

There is tremendous churn in and out of the jail system — 11.4 million people were admitted in 2014.  Bail reform would thus be more about diverting the flow of prisoners rather than releasing lots of long-term ones. A new federal law mandating speedy processing of arrestees, and sharply restricting the use of money-bail, would erode the jail population from two directions at once.  It could be combined with incentives to use alternatives to arrest, like citation-and-release or pre-booking diversion, to further slow the rate of jail entry.  At a very rough guess, such a reform done well could knock about a third — perhaps 200,000 people — off the jail population.

At any rate, even very aggressive bail reform wouldn't get us to the Chinese figure of 1.66 million prisoners quoted above, and it would require congressional action.  But bail reform would be a gigantic step in the right direction. When it comes to fighting mass incarceration, it's the easiest and most obvious first step.

February 17, 2016 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Tuesday, February 16, 2016

"Texas prisons are filling up with the old and the ill — at enormous expense"

The title of this post is the sub-headline of this lengthy new Texas Observer article. Here are excerpts:

Benito Alonzo is a short, 140-pound 80-year-old. His quiet-spoken manner, drooping jowls and gray hair, trimmed in a buzz, give him the appearance of a benevolent grandfather, and indeed, he is a grandfather.  In thick-framed black eyeglasses, he bears a resemblance to the defanged and aging Henry Kissinger.  But Alonzo is neither a celebrity nor a statesman. He’s a convict who has lately grown infirm.  He says he’s been diagnosed with prostate cancer and he’s afflicted with Hepatitis C. For several years he’s been prescribed a drug called Lactulose, which Dr. Owen Murray, chief of medical affairs for the Texas penal system, says “we use for people whose livers are at the end of their lives.”...

Alonzo has been waiting since at least March for the start of a 12-week course of a new liver drug that might keep him alive for years to come. He’s been told that the treatment will cost $94,500.  Were he back on the streets, Medicare would pick up the tab.  But because federal courts have ruled that states must guarantee the safety and health of their inmates, Texas will have to pay.  Alonzo frets that because of the expense, prison bureaucrats will stall the treatment until it’s too late.

The state of Texas operates 109 prisons holding about 148,000 inmates.  Some 27,000 of them are, like Alonzo, over the age of 50.  They account for about 18 percent of the prison population, and are the fastest-growing demographic group among prisoners.  By most estimates, they are also the most expensive to keep under lock and key. According to TDCJ spokesman Robert Hurst, the average cost of housing Texas inmates is about $20,000 a year, but medical and end-of-life expenses hike that figure to some $30,000 for elderly inmates.  In other jurisdictions, the cost is even higher.  A 2012 report from the ACLU calculates the average national expense for keeping a prisoner at $34,000 per year — and twice that much, $68,000, for inmates older than 50.

Both demographic factors and get-tough sentencing have transformed what were once mere penal institutions into hospitals, assisted living centers and nursing homes, too.  The University of Texas Medical Branch operates a freestanding hospital in Galveston for TDCJ, which also contracts with UTMB and the Texas Tech medical school to send prisoners to 146 community hospitals.  Texas prisons now boast of “respiratory isolation rooms,” “brace and limb services” and hospice facilities in which 90 Texas inmates were eased into eternity last year.  More than 300 inmates in Texas prisons use wheelchairs, Dr. Murray says....

Alonzo’s life has been one of alternating spans of heroin addiction and confinement. He served three separate stints in prison — for theft, burglary and heroin possession — from 1958 to 1974. After his parole in 1974, allegedly under the influence of two of his brothers, Pedro and Adolfo, he delivered a pair of pistols to a warden’s trustee who then smuggled them into Huntsville’s Walls Unit. San Antonio gangster Fred Carrasco used those guns in an 11-day hostage-taking and stand-off that culminated in a shootout. Alonzo is serving a life sentence for his connection to the incident....

The state of Texas does have a process for releasing old and infirm prisoners on humanitarian parole, but the record is underwhelming.  A bureaucracy dating to 1987, the Texas Correctional office on offenders with Medical or Mental Impairments, usually named by the clunky acronym TCOOMMI, was assigned to process medically recommended intensive supervision, or MRIS, paroles.  MRIS is a way to move inmates rendered harmless by their frailty or age back into the civilian world.

TCOOMMI reports to the Texas Board of Pardons and Paroles on an inmate’s health status, leaving the final parole decision to the board.  In a February 2015 biennial report, TCOOMMI reported that of the 1,133 MRIS applications that had been submitted in fiscal year 2014, 318 had been found sufficiently meritorious for presentation to the parole board. Of those, the board had granted 67 releases — a mere 6 percent approval rate.

In a 2012 statement, TDCJ admitted that “the Parole Board’s approval rates of MRIS cases remain low.” But the board’s performance hasn’t shown signs of improvement. In the 2015 fiscal year, 445 prisoners older than 60 filed for medical paroles — but only 24 paroles were granted, all of them on the basis of infirmity, none on the basis of age. The roadblock is a provision of the law allowing the parole board to conclude that a prisoner constitutes a threat despite what doctors say....

Benito Alonzo would today have a hard time exacting any revenge or harming anybody, and whether he lives or dies is of little concern except to a coterie of kin and perhaps in the circles of the Mexican Mafia. If he dies in prison, as we must currently expect, though he’d prefer to be interred in San Antonio, his corpse will be eligible for a casket and a grave at public expense, in the prison cemetery, of course.

February 16, 2016 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1)

Monday, February 15, 2016

US Sentencing Commission to conduct hearing on compassionate release and conditions of supervision

As reported in this official notice, the US Sentencing Commission is scheduled to conduct a public hearing the morning of Wednesday, February 17, 2016.  This hearing agenda suggests that the main focus of the hearing is so-called "Compassionate Release" and that all of the leading and most important voices in this space will be speaking to the USSC.  

Some prior related posts:

February 15, 2016 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Friday, February 12, 2016

At debate, Bernie Sanders promises that "at the end of my first term as president we will not have more people in jail than any other country"

The-possibles-bernie-sanderv02I have lost interest not only in blogging before for every Presidential debate, but also in watching most of them.  But, perhaps not surprisingingly as the Prez campaign marches forward to more diverse states than Iowa and New Hampshire, last night's Democratic debate saw Hillary Clinton and Bernie Sanders talking about modern policing, racial disparities in our criminal justice system and mass incarceration.  Of particular note was Sanders making the promise highlighted in the title of this post.  Here is a little bit more of what Senator Sanders had to say on these fronts:

This mandatory sentencing, a very bad idea. It takes away discretion from judges.  We have got to demilitarize local police departments so they do not look like occupying armies.  We have got to make sure that local police departments look like the communities they serve in their diversity.

And, where we are failing abysmally is in the very high rate of recidivism we see. People are being released from jail without the education, without the job training, without the resources that they need to get their lives together, then they end up -- we're shocked that they end up back in jail again.  So, we have a lot of work to do.

But, here is a pledge I've made throughout this campaign, and it's really not a very radical pledge.  When we have more people in jail, disproportionately African American and Latino, than China does, a communist authoritarian society four times our size.  Here's my promise, at the end of my first term as president we will not have more people in jail than any other country. We will invest in education, and jobs for our kids, not incarceration and more jails.

Helpfully, Leon Neyfakh not only noticed this significant promise, but also quickly authored this Slate commentary about it. The headline of the post provides a flavor of its themes: "Sanders Is Delusional if He Thinks He Can Keep His Promise on Mass Incarceration."  Here is the heart of is effective commentary:

What Sanders means by this is that under just four years of his magical leadership, the U.S. will bring down its jail and prison population by about 600,000 people.  Where does that figure come from?  Consider that the No. 2 spot on the list of countries with the most prisoners in the world right now is China, and it has about 1.66 million people behind bars.  The U.S., by comparison, has about 2.3 million.

Sanders did not mention during his remarks how he plans to make the leap from 2.3 million to fewer than 1.66 million. But regardless of what he has in mind, it’s pure fantasy for several reasons. Chief among them is that the president of the United States has no direct control over most of the nation’s correctional facilities.  This is because jails, which currently hold fewer than 745,000 people, are under local control, and state prisons, which hold about 1.35 million, are under state control. That leaves the federal prison system — the only one that the federal government is actually in charge of — with 210,000 people, or about 10 percent of the pie.

It’s true that the president has a “bully pulpit” from which he can say inspiring things that set the tone for officials working at all levels of government.  It’s also true that in theory, the federal government could try to bribe state governments to rely less on incarceration.  But the bottom line is that the feds can only set policy for their own prison system and that means there’s a very low ceiling on the amount of progress that a president, no matter how ambitious he or she is, can do to reduce the prison population....

This would be a good time to remember, also, that Congress’ current efforts to bring down the prison population by enacting very modest sentencing reforms appear to be falling apart in slow motion because there are enough lawmakers in Washington who think it’s too dangerous to set anyone free, ever.  And this is at a time when there’s supposed to be a historic bipartisan consensus over the need for reform.

If Sanders wants to release more than 500,000 people by 2020, he’s going to have to break them out personally.  If he has a more efficient approach in mind, he needs to share it before he makes this ridiculous promise again.

February 12, 2016 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Scope of Imprisonment, Who Sentences? | Permalink | Comments (8)

Thursday, February 11, 2016

Notable data on racial and gender dynamics of recent changes in incarceration rates

This new Wonkblog post via the Washington Post reports on provides an interesting analysis of modern incarceration data under the headline "There’s been a big decline in the black incarceration rate, and almost nobody’s paying attention." Here are the details:

After decades of growth, the U.S. imprisonment rate has been declining for the past six years.  Hidden within this welcome overall trend is a sizable and surprising racial disparity: African-Americans are benefitting from the national de-incarceration trend but whites are serving time at increasingly higher rates.

The pattern of results, evident in a series of reports from the Bureau of Justice Statistics, is most stark among women. Since 2000, the imprisonment rate among African-American women has dropped 47 percent, while the rate among white women has risen by 56 percent.  These trends have combined to shrink the racial disparity in women’s imprisonment by two-thirds.

A similar pattern emerges for men, who compose a much larger share of the prison population.  The rate of imprisonment among African-American men remains very high, but nonetheless it has tumbled 22 percent since 2000. The rate for white men in contrast is 4 percent higher than it was in 2000.  As a result, the racial disparity has shrunk by nearly one quarter.

In responding to the data, Fordham University Professor John Pfaff echoed several criminologists when he said that“This is one of the most surprising pattern of results I have seen in corrections in a long time.”  Pfaff said that “law enforcement attitudes getting tougher in rural areas and softer in urban areas may be contributing to this change."

Adam Gelb, who directs the public safety performance project of the Pew Charitable Trusts, suggested that “changes in drug use and enforcement over the past 15 years could be at play.”  Gelb said the methamphetamine, prescription opioid and heroin epidemics have affected whites more than did the crack cocaine epidemic, which increased incarceration among blacks in the 1980s and 1990s but has since waned.

Stanford Law School Professor Joan Petersilia noted another possible cause: “sex offenders, who are disproportionately white and tend to receive long sentences, are a new target for the war on crime.”  Consistent with this explanation, a larger proportion of white inmates have been convicted of sex crimes (16.4 percent) than have black inmates (8 percent)....

Whatever cultural and macroeconomic forces are producing these changes could conceivably also be driving increased involvement in the criminal justice system by whites, including rising imprisonment in an era of de-incarceration.

February 11, 2016 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (2)

Wednesday, February 10, 2016

"The State of Sentencing 2015: Developments in Policy and Practice"

The title of this post is the title of this great new publication from The Sentencing Project.  Here is a summary of its contents drawn from an email I received earlier today:

[This] new report from The Sentencing Project, The State of Sentencing 2015: Developments in Policy and Practice, [was] authored by Nicole D. Porter, Director of Advocacy.  The report highlights reforms in 30 states that demonstrate a continued trend to reform sentencing policies and scale back the use of imprisonment without compromising public safety.  It provides an overview of recent policy reforms in the areas of sentencing, probation and parole, collateral consequences, and juvenile justice.  Highlights include:

  • Sentencing:  At least 12 states authorized new sentencing laws or modified policy practices including: abolishing the death penalty; reducing criminal penalties; and sentence reduction policies for mandatory sentences.

  • Probation/Parole:  Lawmakers in at least six states modified policies relating to community supervision including statutory guidance designed to reduce returns to prison for technical probation and parole violators.

  • Collateral Consequences:  Officials in at least 14 states authorized changes in policy and practice to the collateral impacts of a conviction including: expanding voting rights; eliminating public benefits bans for felony drug convictions; and addressing employment barriers.

  • Juvenile Justice:  Lawmakers in ten states adopted juvenile justice reforms including: banning mandatory life-without-parole sentences for justice involved youth and limiting prosecutorial discretion in automatic transfer policies for juvenile defendants.

February 10, 2016 in Mandatory minimum sentencing statutes, Offender Characteristics, Reentry and community supervision, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)

Tuesday, February 09, 2016

Is California conducting an "unprecedented experiment in mass forgiveness"?

The question in the title of this post is prompted by the headline of this lengthy new Washington Post article, which suggests the Golden State has become a unique criminal justice laboratory.  Here are excerpts:

[Jose] Gonzalez is among thousands of felons benefiting from a grand experiment, an act of mass forgiveness unprecedented in U.S. history.  In California, once a national innovator in draconian policies to get tough on crime, voters and lawmakers are now innovating in the opposite direction, adopting laws that have released tens of thousands of inmates and are preventing even more from going to prison in the first place.

The most famous is a landmark ballot measure called Proposition 47, which in 2014 made California the first state in the nation to make possession of any drug — including cocaine and heroin — a misdemeanor.  More astonishing is the state’s decision to show leniency toward violent offenders, including murderers like Gonzalez.

For example, the state has ordered parole hearings for longtime inmates convicted of committing violent crimes before they turned 23, requiring authorities to consider anew whether immaturity at the time of the inmates’ offense argues for their release.

Meanwhile, Gov. Jerry Brown (D) has approved parole for roughly 2,300 lifers convicted of murder and about 450 lifers sentenced for lesser offenses — a revolution in a state that released only two lifers during former governor Gray Davis’s entire four-year term.  And more reforms could be in store. Last month, Brown unveiled a ballot measure that, if approved by voters in November, would grant early release to nonviolent felons who complete rehab programs and demonstrate good behavior.

Progressives across the nation have applauded California’s U-turn. “There is a gathering sense that the public is considerably less punitive than people had thought,” said Joe Margulies, a professor of law and government at Cornell University.

But with crime in some of California’s largest cities ticking up after years of sustained decline, many law enforcement leaders and victims’ advocates say the state has gone too far. “Our hope was folks getting out of prisons are going to come out and be model citizens,” said Christine Ward, executive director of the Crime Victims Action Alliance. “Unfortunately, we’re not seeing that.”...

So far, 250 inmates have been released under the Youth Offender Parole law, most of them violent offenders.  As many as 16,000 more remain eligible.  Meanwhile, a study by Stanford Law School found that Proposition 47 had unlocked the cell doors of nearly 4,500 prisoners since taking effect in late 2014.

Sheriffs, police chiefs and prosecutors speculate that Prop 47 has contributed to a recent rise in crime and homelessness in major California cities, arguing that the law eliminated a useful billy club: the threat of a felony conviction to steer addicts into treatment.  “It’s a vicious cycle,” said Kirk Albanese, deputy chief of the Los Angeles Police Department.  “You’ve got an addiction, we are not holding you accountable, and you’re back into the cycle of using. How do you support that habit?  Stealing.  Our burglaries are up, car theft is up, break-ins are up — they are all up.”

Hilary Chittick, a veteran judge for the Superior Court of Fresno County, said Prop 47 has “decimated” her ability to force addicts into treatment. “The public had a house with a leaky roof and bad pipes,” she said. “So they blew up the house.”

Prop 47 supporters acknowledge the problem and say efforts are underway to address it.  More drug courts, for instance, are opening their doors to misdemeanants as well as felons, said Prop 47 co-author Lenore Anderson, executive director of the advocacy group Californians for Safety and Justice. “If you think that you need a stick in order to mandate treatment, that option is available with a misdemeanor,” Anderson said.  But Prop 47 supporters reject the notion that the ballot measure contributed to localized spikes in crime.  Early reports indicate that recidivism among inmates released under the full range of reforms has been low....

In general, more than half of inmates released from California prisons — 54 percent — return to prison within three years. Among lifers paroled under Brown, the Los Angeles Times found, fewer than 2 percent have committed new crimes.  Among the 2,100 inmates released after the softening of the state’s three-strikes law, only about 6 percent have returned to prison. Michael Romano, director and co-founder of the Stanford Law School Three Strikes Project, attributes the success of this cohort in part to extensive rehab, but also to a kind of forgiveness psychology.

Because I do not live in California, it is hard for me to judge whether the state is genuinely engaged in "mass forgiveness" when passing laws designed to reduce its prison population and the severity of its sentncing laws. But there is little doubt that all sorts of significant criminal justice reforms are now playing out in California, and it will be quite valuable and important for criminal justice advoates and researchers to watch and study crime and punishment developments in the state in the months and years to come.

February 9, 2016 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (3)

Mark you calendar for ASKS, a big alternative sentencing summit next month in DC

Logohome99I am pleased to be able to promote an exciting event taking place next month: the Alternative Sentencing Key-Stakeholder Summit (ASKS), at Georgetown University Law Center, DC on March 7-8, 2016. Here is a link for registration, and here is the ASKS gameplan and a Q&A via its website:

Summit Overview: Alternative sentencing has been at the heart of improving public safety and includes successful sentencing, reentry and other fiscally responsible criminal justice policies and programs both in the U.S. and around the globe. As the U.S. starts 2016 with commitments from the President and Congress to pass meaningful federal criminal justice reform legislation, the time is right to evaluate the role alternative sentencing can play in furthering the key objectives of public safety and fiscal responsibility.

More Info: Who will participate in the ASKS Summit? The summit will bring together an unprecedented number of current and former leaders and senior government officials who have served on the front lines of day-to-day operations in the criminal justice system, including law enforcement, government, judiciary, defense, forensic social workers and psychologists, and nonprofits, as well as formerly incarcerated people, victims and advocacy groups.

What are the ASKS Summit objectives? Beyond education, ASKS will use plenary, breakout and interactive sessions to generate substantive dialogue between all delegates and identify key priorities for:

  • Expanding the use of effective alternative sentencing programs while enhancing public safety, including the mechanisms of discretion (police, prosecutorial and judicial) and legislative reforms;
  • Addressing public safety concerns over its broadened use and practical barriers to expansion and launching effective new programs in new jurisdictions, including operational limitations, program evaluation and public education;
  • NGOs that can help to support broader application of effective alternative sentencing, eg. ubiquity of access and other measures and peripheral programs to help ensure successful reentry.

February 9, 2016 in Criminal Sentences Alternatives, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Monday, February 08, 2016

"Their 'compassion' is seriously flawed: Politicians care about white addicts — but still love the racist drug war"

The title of this post is the headline of this notable new Salon article authored by Daniel Denvir.  Here are excerpts:

It’s a new day for American drug policy, at least as far as drug users are concerned. In New Hampshire, Jeb Bush, Carly Fiorina and Chris Christie are speaking to the wrenching pain of losing loved ones to opioid addiction and death, and making the case that drug abuse should be treated by health professionals and not jails....

Republicans on the campaign trail are opening their hearts to addicts and their families, and policymakers from both major parties are backing harm reduction measures like increasing access to the overdose-reversing drug naloxone.  The shift in tone and policy is important, and it has understandably caught reporters’ attention. “In speaking about their own experiences, Republican candidates are not only allowing themselves to be vulnerable in front of voters, they’re also straying from the just-say-no message of Ronald Reagan, whose legacy includes a tough legislative stance on drugs and drug sentencing,” writes the New York Times’ Emma Roller.

The seeming about-face, however, also reveals a troubling problem: Heroin user demographics have changed dramatically in recent years, from heavily black to overwhelmingly white; and it seems that for politicians, it is the opioid crisis’ newly white face that has lent it a relatable quality as far as drug users are concerned.  This has not so much been the case for drug dealers....

And therein lies the rub: While many have noted the racial double standard at work, little attention has been paid to its ongoing and pernicious consequence — policy makers are often still approaching drug dealers with ruthlessly punitive measures, and those drug dealers are likely to be black and Hispanic.  At least, that is, those for drug dealers who are serving prison time: studies have found that in reality whites are more likely to sell drugs than blacks.

It turns out that Bush and company are not straying as far from drug war orthodoxy as it might seem at first blush. “For dealers, they ought to be put away forever as far as I’m concerned,” said Bush, summarizing the new compassionate consensus’s harsh edge. “But users — I think we have to be a second-chance country.”

While the face of drug users is becoming white, the image of drug dealers often remains black or Hispanic, as blunt-speaking Maine Gov. Ron LePage recently made clear. “These are guys with the name D-Money, Smoothie, Shifty – these types of guys – they come from Connecticut and New York, they come up here, they sell their heroin, they go back home,” said LePage. “Incidentally, half the time they impregnate a young white girl before they leave, which is a real sad thing because then we have another issue we have to deal with down the road.”

LePage’s comments prompted outrage and ridicule because they were racist. But the policy implications go beyond rhetorical offense, because the growing empathy toward white heroin users could actually reinforce or even increase hostility toward drug dealers, especially if they are perceived as being black and Hispanic. Ted Cruz, for one, blamed drug problems on borders left open for “undocumented Democrats.” The upshot is that growing compassion toward drug users won’t necessarily lead to a major reduction in the number of drug offenders behind bars. Drug dealers already made up the bulk of people serving time for drug crimes, and so the only way to sharply reduce the number of drug offenders in prison is to stop imprisoning so many drug dealers.

Instead, some officials appear to be heading in the opposite direction. Around the country, federal and local prosecutors are pointing to the opioid epidemic as a pretext to charge drug dealers with murder-type offenses in fatal overdoses. In reality, the sort of dealers who Bush and others want to put away for life include both small-time operators and drug users who appear to have shared a small amount of drugs with a friend. One man was sentenced to 20 years in federal prison for selling two-tenths of a gram of heroin, $30 worth, to a man who later overdosed. Many dealers, major and minor, are still subject to sentences harsher that what many countries reserve for murderers....

It’s not just a problem for Republicans, either. Democratic candidates for president Hillary Clinton and Bernie Sanders have yet to put forward a plan that would actually end the mass incarceration of drug offenders (let alone mass incarceration more generally, which is driven in significant part by the imprisonment of violent offenders). Both have bigger plans than Republicans, however, and Sanders has outdone Clinton by calling for an end to the federal prohibition of marijuana and supporting the reinstatement of federal parole. Both pledge to do something about harsh mandatory minimum sentences. But neither candidate has argued that most drug dealers should not be imprisoned, or suggested more radical but useful alternatives like broad-based legalization and regulation....

There is some movement to relax harsh punishments for nonviolent drug dealers and create programs to divert low-level dealers from prison. In Congress, bipartisan legislation would modestly reform some of the harshest mandatory minimums for drug dealers, President Obama has commuted the sentences of some drug offenders serving incredibly long federal sentences, and the racist discrepancy between federal crack and powder cocaine sentences have been narrowed (but not at all eliminated). But until politicians’ rethinking of the drug war extends to drug dealers, hundreds of thousands of people, disproportionately people of color, will be remain bars in the name of a drug war that by all honest accounts has failed to stop people from using drugs.

February 8, 2016 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Saturday, February 06, 2016

"Instead of building 'super prisons,' let's build super schools"

The title of this post is the headline of this notable commentary by an Alabama state rep in response to a recent proposal by the state's Governor.  Here is how the commentary begins:

During his State of the State Address Tuesday night, Gov. Bentley laid out his four-year plan, which included spending up to $800 million to build four new super prisons.  The next day, the governor announced that he wants to transfer $181 million out of the education budget and put it in the general fund budget, which also pays for prisons.

Don't get me wrong.  There are some very serious problems with our state prisons. What's happening at the Julia Tutwiler Prison for Women is unacceptable!  Changes need to be made, and more prison reform is absolutely needed.

But how can the governor — or any legislators, for that matter — justify spending almost a billion dollars on new accommodations for prisoners while thousands of our children are going to school in run-down facilities that have broken windows and no air conditioning?

Instead of building "super prisons" like what the governor is talking about, how about we build "super schools" instead? Why is the governor willing to invest hundreds-of-millions of dollars in our prison population's future, but wants to cut hundreds-of-millions from our children's future?

Among other points, this commentary highlights the reality that, for states with fixed and limited budgets, any and all extra taxpayer investments in cells can often require a reduction in taxpayer investment in classrooms.

February 6, 2016 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (3)

Wednesday, February 03, 2016

"American Exceptionalism in Probation Supervision"

American-Exceptionalism-in-Probation-Final-1024x663The title of this post is the title of this notable new data brief published by Robina Institute of Criminal Law and Criminal Justice. The core product is this interesting graphic (which is really hard to see here, but is very worth checking out).  Here is some of the Robina Institute's text that explains some of the graphic's data details:

It is well known that the U.S. leads the world in incarceration rates. This Data Brief shows that, compared with Europe, America is similarly “exceptional” for its high rates of probation supervision.  The average probation supervision rate for all fifty states is more than five times the average rate for all European countries included in the most recent Council of Europe data.  Several U.S. States with the highest rates of probation supervision (e.g., Ohio, Rhode Island, Idaho, and Indiana) have rates that are eight-to-nine times the average European rate.  Such stark differences exist despite the fact that many countries in Europe have overall crime rates that are quite similar to the U.S.

This Data Brief demonstrates for the first time that America suffers from “mass probation” in addition to “mass incarceration.”  Although probation has often been thought of as an “alternative” to prison or jail sentences, the U.S. has achieved exceptional levels of punitiveness in both incarceration and community supervision.  Over the past several decades, the number of people under probation supervision in the U.S. has increased greatly.  Nearly 4 million adults were under probation supervision across America at year-end 2013.  In all reporting European countries, with roughly twice the population of the U.S., only 1.5 million adults were under probation supervision.

These findings lead to many important questions of law and policy.  Most states should closely reexamine the numbers of people who are placed on probation each year, and the lengths of terms they are required to serve.  Options for “early termination” of the lowest-risk and most successful probationers should be explored.  Some experts in the field allege that probationary sentences do little to control crime, and frequently do more harm than good.  Community supervision can make offenders’ “reentry” into the law-abiding community more difficult than it needs to be, such as when meetings with probation officers interfere with work responsibilities, or supervision and program fees block probationers’ ability to support themselves and their families.

Concerns of this kind should be carefully evaluated by lawmakers in every state.  If some uses of probation are counterproductive to the reentry process, or outright “criminogenic,” it should be a high priority everywhere to discontinue them.  The financial expense and opportunity costs of “mass probation” should also be assessed nationwide.  High probation supervision rates cost American taxpayers a great deal of money, and not just in the funding of probation agencies.  National data suggest that a large share of all prison admissions come from probation revocations — a substantial number of which are for “technical” violations of sentence conditions rather than new criminal conduct.  Far from being an “alternative” to incarceration, probation has been a “feeder” institution or a “conduit” to our prisons and jails.  In this respect, misguided probation policy has almost certainly been a major contributor to America’s excesses in prison policy.  The problems of mass incarceration and mass probation are intimately linked, and they must be tackled together.

February 3, 2016 in Criminal Sentences Alternatives, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (3)

Tuesday, February 02, 2016

"The Irrationality of Natural Life Sentences"

The title of this post is the headline of this New York Times Opinionator column authored by Jennifer Lackey.  Here are excerpts:

[Personal] transformations can be seen most clearly by considering the two ends of the spectrum of life.  On the early side, it is often noted that the prefrontal cortex of the brains of adolescents is still developing, and so they are more likely than adults to act on impulse, engage in dangerous or risky behavior, and misread social cues and emotions.  This raises a host of questions about the level of responsibility that juveniles bear for their crimes and the appropriate punishments that should be handed out to them.  If the underdeveloped brains of adolescents at least partly explain their criminal behavior, then holding them fully responsible for their actions, and punishing them as adults, seems wildly off the mark.

On the later side of the spectrum, only 1 percent of serious crime is committed by people over the age of 60. According to Jonathan Turley, a professor of public interest law at George Washington University: “Everyone agrees on what is the most reliable predictor of recidivism: age.  As people get older, they statistically become less dangerous.” Turley refers to this period as “criminal menopause,” a phenomenon that raises serious questions about the rationale for incarcerating the elderly.  Still, researchers project that the elderly prison population in the United States will be over 400,000 in 2030, compared with 8,853 in 1981.

At the early end of the spectrum of life, then, there is the possibility that prisoners might change; at the later end, there is the reality that they have changed.  Both facts bump up against natural life sentences.  A sentence of “natural life” means that there are no parole hearings, no credit for time served, no possibility of release.  Short of a successful appeal or an executive pardon, such a sentence means that the convicted will, in no uncertain terms, die behind bars.

Many types of arguments have been leveled against natural life sentences.  Economic ones focus on the ballooning costs of mass incarceration and the toll this takes on government budgets, especially as the age and medical expenses of prisoners rapidly increase.  Legal ones ask whether such sentences are cruel and unusual and therefore violate the Eighth Amendment, particularly for juveniles.  Social arguments ask whether natural life sentences discourage reform by providing no incentive for rehabilitation.  Moral concerns are grounded in the dignity and rights of prisoners, while psychological objections call attention to the myriad causes of deviant behavior and their responsiveness to appropriate treatment.

But one argument that is surprisingly absent from these conversations is an epistemic one that has to do with us.  For natural life sentences say to all involved that there is no possible piece of information that could be learned between sentencing and death that could bear in any way on the punishment the convicted is said to deserve, short of what might ground an appeal.  Nothing.  So no matter how much a juvenile is transformed behind bars, and no matter how unrecognizable an elderly prisoner is from his earlier self, this is utterly irrelevant to whether they should be incarcerated.  Our absence of knowledge about the future, our ignorance of what is to come, our lack of a crystal ball, is in no way a barrier to determining now what someone’s life ought to be like decades from now.

Moreover, prisoners aren’t the only ones who can change: victims and their families can come to see the convicted as being worthy of forgiveness and a second chance, and public attitudes can evolve, moving away from a zealous “war on crime” approach to one that sees much criminal activity as the result of broader social problems that call for reform.  Even if we set aside the other arguments against natural life sentences — economic, legal, moral and so on — the question I want to ask here is this: how is it rational to screen off the relevance of this information?  How, that is, is it rational to say today that there can be no possible evidence in the future that could bear on the punishment that a decades­-from-­now prisoner deserves?...

Notice that nothing in the epistemic argument here suggests that no prisoners should, in fact, spend the rest of their natural lives behind bars.  Instead, the point is that rationality requires that we leave the epistemic door open to acquiring new information.  Put bluntly, the argument says that it is irrational for the possibility of parole to be taken off the table at the outset of any sentence.

If Hume is right that “a wise man proportions his belief to the evidence,” then our beliefs about the punishment a person deserves at any given time need to be sensitive to the evidence available at that time.  But if we screen off huge amounts of potentially relevant information decades before the beliefs about what a prisoner deserves are even formed, then it is impossible for them to be proportioned to the evidence.

February 2, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (4)

Sunday, January 31, 2016

Highlighting the highlights of the Colson Task Force report on improving federal justce system

As reported in this recent post, last week the Charles Colson Task Force on Federal Corrections issued numerous recommendations to reform the federal criminal justice system in a big report titled Transforming Prisons, Restoring Lives.  The helpful folks at Vice subsequently published this helpful overview of the report in an article headlined "A Bipartisan Congressional Panel Just Agreed on Ways to Send Fewer Americans to Prison."  Here are excerpts: 

Chief among the recommendations of the nine person, bipartisan Charles Colson Task Force on Federal Corrections is sending fewer low-level drug offenders to federal prison, and sentencing offenders to far fewer years behind bars, which would reverse two of the changes that have driven the federal prison population to grow by 700 percent since 1980.

But the task force also dug into the minutiae of how the prison system is operated, including how it evaluates the success of its programs, the recidivism rate, and how it uses its resources.  In their final report, members suggest that the prisons should actually devote more resources to addiction treatment, cognitive behavioral therapy, classes, and faith programs, and incentivize participation by offering offenders reducing time from their sentences and a "second look" at their cases by a federal judge after they've served certain number of years.

"If their behavior is good in the program, they've taken part in programs, they can have their sentence looked at again. It's an incentive to have people behave well and participate in programs that are evidence-based to improve behavior," said Laurie Robinson, a criminal justice professor and former Assistant Attorney General who served on the task force....

Robinson described her experience working with the task force as "terrific."  Despite 30 years working in the criminal justice system, she said she learned both from the diverse viewpoints of her colleagues and the federal prisoners she met on site visits.  "Some were in their late 60s or 70s, and at least one of those individuals was in very bad health and said he had applied several times for compassionate release," she said.  "And it just made you think: Why are we spending so much in the way of taxpayer dollars to keep people behind bars?"...

Robinson and her colleagues were meeting with senior staff at the White House ... to brief them on the report and point out which actions could be taken without a Congressional vote or legislation.  "There are things in there that the director of the BOP could do tomorrow, she said, noting that there are also steps the DOJ and president could take that focus on management, resource allocation, and best practices.  Others of them I think might not happen necessarily quickly but maybe are things that will get into the public conversation that will have to happen at a later time," she said....

Going forward, the report says, sentences should be individualized, policy should emphasize public safety, data should guide policies, and the costs should be more carefully considered.  Most importantly, the report says, the lawmakers who receive the recommendations "must capitalize on this rare moment in time" of political will and public awareness to make effective change.

Prior related post:

January 31, 2016 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (0)

Thursday, January 28, 2016

California Gov Jerry Brown proposes state ballot initiative to expand parole and make other reforms

As reported in this Los Angeles Times article, headlined "Gov. Brown to seek November ballot initiative to relax mandatory prison sentences," the chief executive of the largest state in our Union is asking voters to give certain executives and judges more power to reduce state sentences after their imposition. Here are the basic details:

Almost four decades after he signed a law mandating strict sentences for the most serious crimes, Gov. Jerry Brown on Wednesday moved to ease its effect, proposing inmates convicted of nonviolent offenses be given a chance at early release.  “Let's take the basic structure of our criminal law and say, when you've served fully the primary sentence, you can be considered for parole,” Brown said in announcing a November ballot initiative to streamline the rules — one he estimated could affect thousands of current inmates.

Rather than change sentencing policy, the proposal would allow corrections officials to more easily award credits toward early release based on an inmate's good behavior, efforts to rehabilitate or participation in prison education programs. “It's well-balanced,” Brown said. “It's thoughtful.”

The effort is largely in response to the lingering effects of a 2009 federal order for California to reduce its prison population, Brown said.  But he made clear that it also is meant to improve a criminal justice system that offers too few chances at rehabilitation. “By allowing parole consideration if they do good things,” the governor said of some inmates, “they will then have an incentive … to show those who will be judging whether or not they're ready to go back into society.”

Brown had been hinting for months that he was considering a key change in criminal justice policy, and consulted with a number of academics and inmate advocates on how to proceed.  He was joined Wednesday by a handful of prominent law enforcement and religious leaders.  While it was unclear whether they were ready to fully embrace each detail of the measure, they praised Brown's focus on weeding out those serving time for nonviolent offenses. “I think this will effectively open bed space for those who richly deserve to be there,” Los Angeles Police Chief Charlie Beck said.

The initiative also would authorize the state parole board to consider early release for nonviolent inmates who complete a full sentence for their primary offense and it would require a judge to decide whether felons as young as 14 should be tried in juvenile or adult court.  That final element of the initiative would undo a system approved by voters in 2000 that handed that power to prosecutors.

Once the measure is given a formal title and summary by the attorney general's office, Brown and his political team will need to gather more than 585,000 valid voter signatures to qualify it for the Nov. 8 statewide ballot. The governor likely has the needed resources: Campaign funds left over from his 2014 reelection bid and previous successful ballot measures total some $24 million....

Patrick McGrath, district attorney of Yuba County, said Brown's plan — by offering more pathways to parole — also may send the wrong message to crime victims who believe their perpetrators received a certain punishment. “Now, down the line, they're told 10 year [sentences] are not really 10 years,” he said. “I think this is very, very corrosive to the faith that the public has ultimately in the criminal justice system.”  Loyola Law professor Laurie Levenson, a former federal prosecutor, said the proposal would make a judge's sentence only a starting point. “People could be released from prison years earlier based on what the parole board wants to do,” she said....

Of particular interest will be how Brown shapes the narrative of the political campaign in support of his parole initiative. The fall statewide ballot already is expected to be one of the longest in more than a decade, which will mean voters are deluged with a flood of advertisements, mailers and messages. The ballot also likely will feature other high-profile public safety debates, including a gun violence initiative promoted by Lt. Gov. Gavin Newsom and perhaps dueling initiatives to either eliminate or strengthen California's death penalty.

Prof David Ball, who has researched and written a lot about California sentencing realities, provides a deeper dive into what all this could really mean in this Reality-Based Community post. Here is how this post starts:

Governor Jerry Brown introduced the Public Safety and Rehabilitation Act of 2016 (link to initiative text), a sentencing reform ballot initiative slated to appear on the November ballot.  This is potentially huge news — if nothing else, it may signal that the political calculation on crime could be changing — but I have some caveats about how significant it could end up being. The PRSA expands the potential for parole release, expands good-time credits, and puts judges, not DA’s, in charge of deciding whether a given juvenile offender can be tried in adult court.

The most significant part of the PRSA, in my opinion, is the expanded role of parole. California never quite did away with indeterminate sentencing, as I have written about here, reserving X-years-to-life sentences for non-capital murder, three strikes offenses, and some sex offenses. This proposal is definitively not a return to the Indeterminate Sentencing Law of the early 1970’s, where sentences could be as vague as “one year to life.”  Instead, it makes all those who have served their primary (determinate) sentence eligible for parole. The key here is how primary sentence is defined: it “exclude[es] the imposition of an enhancement, consecutive sentence, or alternative sentence.” As I wrote about here, (see this page for a link to the article and the data on sentencing), there are many people serving very long consecutive sentences (100 years plus).  More importantly, the tail-wagging-the-dog enhancement structure of the California penal code means a lot of time actually served is from enhancements.  I expect this to be the main source of pushback, since so much of plea bargaining is, in fact, charge bargaining, and so much of charge bargaining is about enhancements.

January 28, 2016 in Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

Tuesday, January 26, 2016

"Congressionally Mandated Task Force Calls for Bold Transformation of Federal Corrections System"

CCTFThe title of this post is the headline of this press release which summarized the contents and import of a new report released this morning by the Charles Colson Task Force on Federal Corrections.  Here are excerpts from the press release (which includes a link to the report):

Today, the Charles Colson Task Force on Federal Corrections issued a set of bold recommendations to reform the federal justice system, enhance public safety, and save the government billions of dollars. In a new report, Transforming Prisons, Restoring Lives, the Congressionally mandated blue-ribbon panel released the findings of its year-long investigation into the nation’s overcrowded and costly federal prisons....

“We have laid out a detailed roadmap of ambitious, consensus-based recommendations that place public safety first while reserving prison for those who truly need it,” said task force chair, former Republican congressman from Oklahoma J.C. Watts, Jr. “If taken together, these reforms are projected to reduce the federal prison population by 60,000 people in the coming years and save more than $5 billion.”

Congress established the bipartisan panel in 2014 in response to mounting concerns about the scale and cost of the federal Bureau of Prisons (BOP), which currently houses 197,000 people with a budget of almost $7.5 billion this year. Alan Mollohan, the task force’s vice-chair, said that the seven-fold increase in the BOP’s population since the 1980s is unsustainable. 

"The BOP has been operating at crisis levels for decades," said Mollohan, a former Democratic congressman from West Virginia. "As a result, its policies and practices have not kept up with best practice in the field, presenting a missed opportunity to rehabilitate those who are confined in federal prisons and thus promote public safety.”...

In the report, the task force recommends that the federal justice system move away from its current “one size fits all” approach to meting out punishment and delivering treatment and programs. Instead, they advise that sentencing decisions and correctional responses be based on the individual case–an approach grounded in research evidence as the most effective means of reducing recidivism.

Observing that prison is expensive and imposes tremendous harm to individuals, families, and communities, the Task Force recommends that prison sanctions be used sparingly and long terms of incarceration be reserved for only the most serious federal crimes. They advise incentivizing participation in programs that are proven to lower recidivism and increase the odds of success for individuals reentering society. And, in following the example of successful reforms in states like Texas, Utah, Georgia, South Carolina, and Pennsylvania, they advocate for a more diversified, evidence-based approach to criminal justice that delivers public safety at less cost.

In more specific terms, the Task Force recommends that:

  • Mandatory minimum penalties for drug offenses should be reserved for “drug kingpins”–those found to have served a leadership role in a large cartel;
  • Program and treatment participation in prison should be incentivized through earned time off one’s sentence; and
  • The BOP should better assess the risks, needs, and assets of its population and align programming and treatment accordingly to reduce recidivism and enhance public safety.

Along with the release of this important report, J.C. Watts, the chair of the Charles Colson Task Force on Federal Corrections, authored this Washington Post commentary headlined "Prisons are full of low-level offenders. It’s time to rethink federal sentencing laws.: Americans believe in redemption, but for too long, our reflexive reliance on incarceration has left us little room to show it."

January 26, 2016 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4)

Monday, January 25, 2016

Helpful accounting by Pew Charitable Trusts of huge state-level reforms resulting from Justice Reinvestment Initiative

The good folks at Pew recently released these two helpful mini-reports that provide a summary accounting of lots of the criminal justice reform work that has been done by states in recent years through the so-called Justice Reinvestment Initiative:

The first of these linked documents has a pdf version with huge chart with lots of interesting specifics under the heading "Sentencing and Corrections Reforms in Justice Reinvestment States."  Anyone eager to get a feel for just some of the massive criminal justice reforms that have taken place in the states over the last decade ought to check out this document.  And the document has this overview discussion at the outset:

Since 2007, 31 states have reformed their sentencing and corrections policies through the Justice Reinvestment Initiative, a public-private partnership that includes the U.S. Justice Department’s Bureau of Justice Assistance, The Pew Charitable Trusts, the Council of State Governments Justice Center, the Crime and Justice Institute, the Vera Institute of Justice, and other organizations.  Although reforms vary from state to state, all aim to improve public safety and control taxpayer costs by prioritizing prison space for serious and repeat offenders and investing some of the savings in alternatives to incarceration for low-level offenders that are effective at reducing recidivism.

Justice reinvestment policies generally fall into four categories: sentencing laws that instruct courts about how to sanction convicted defendants; release laws that determine the conditions for offenders’ departure from prison; supervision laws that guide how those on probation or parole are monitored; and oversight laws that track the progress of these changes.

In the years since the wave of reforms began, the total state imprisonment rate has ticked downward while crime rates have continued their long-term decline.  At the same time, states that have enacted justice reinvestment laws expect to save billions of dollars as a result of their reforms. 

The second document linked above drills down a little deeper into sentencing-specific reforms, and a quick review of the state-by-state changes suggests that even more "red" states have been involved in making sentencing reforms through the Justice Reinvestment Initiative than "blue" states.

January 25, 2016 in Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)

Friday, January 22, 2016

"Incarceration Incentives in the Decarceration Era"

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

After forty years of skyrocketing incarceration rates, there are signs that a new “decarceration era” may be dawning; the prison population has leveled off and even slightly declined.  Yet, while each branch of government has taken steps to reduce the prison population, the preceding decades of mass incarceration have empowered interest groups that contributed to the expansion of the prison industry and are now invested in its continued growth.  These groups, which include public correctional officers and private prison management, resist decarceration-era policies, and they remain a substantial obstacle to reform.

This Article scrutinizes the incentives of these industry stakeholders in the new decarceration era. Drawing on interviews with a wide range of industry actors, it develops a “taxonomy of resistance” to identify how and why these actors resist reform efforts and uncovers understudied parallels between private and public prison stakeholders.  This fine-grained analysis grounds the Article’s recommendations for changes to compensation and assessment structures to better align industry incentives with decarceration-era goals.  Ultimately, the future of the decarceration era is precarious but not doomed.  The detailed incentives unearthed by this study demonstrate the significant hurdles facing emerging decarceration policies and the urgent challenge of accounting for, overcoming, and co-opting entrenched prison industry stakeholders.

January 22, 2016 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Thursday, January 14, 2016

"More Prison, Less Probation for Federal Offenders"

The title of this post is the title of this short Pew Charitable Trusts "Fact Sheet" publication which includes a graph highlighting how many more federal offenders are sentenced to prison and how many fewer get just probation in recent years.  Here is the heart of the text of the document (with my emphasis added):

Over the past three decades, imprisonment has become the dominant sanction in the federal criminal justice system. Nine in 10 federal offenders received prison sentences in 2014, up from less than half in 1980, as the use of probation declined steadily. (See Figure 1.) Federal courts sentenced 2,300 fewer offenders to probation in 2014 than in 1980, even though their caseload nearly tripled during that span.

Changes in the kinds of offenses and offenders prosecuted in federal court may have contributed to the shift toward prison and away from probation. But sentencing policies established during the 1980s and 1990s also played an important role by mandating prison time for many offenses for which probation had routinely been ordered in the past.

Congress increased imprisonment and decreased the use of probation in several ways. During the 1980s and 1990s, for example, lawmakers enacted dozens of laws prohibiting probation and requiring prison terms for many common federal crimes, including drug trafficking and illegal firearms possession.

In 1984, Congress created the U.S. Sentencing Commission, an independent agency within the judicial branch, and charged it with establishing guidelines that federal judges were required to follow during sentencing. The guidelines, which were intended to promote consistency in federal criminal penalties and took effect in November 1987, mandated imprisonment for a variety of offenses — including fraud, embezzlement, and tax evasion — for which probation was a routine sanction in the past.

January 14, 2016 in Data on sentencing, Federal Sentencing Guidelines, Scope of Imprisonment | Permalink | Comments (5)

Friday, January 08, 2016

Is mass incarceration contributing to the dumbing down of America?

Section2_Fig7The question in the title of this post is prompted by this local article headlined "Oregon Spends Nearly Four Times More on Incarceration than Higher Education."  As these excerpts reveal, the article focuses on just one state's investment of more taxpayer resources on locking up young people than on educating them:

According to new data released near the end of 2015, Oregon is among the states with the lowest ratio of higher education spending to prison and incarceration spending.  Criminal justice and higher education experts, advocates and reformers told GoLocal that, the state’s disparity in funding is a major issue that needs to be addressed.

According to a study entitled Public Research Universities: Changes in State Funding, published by the American Academy for Arts and Sciences, Oregon spends $204 million in higher education each year, only fifth from the bottom in the United States.  Meanwhile, the state spends nearly four times that, $802 million in total, on corrections.

That gives them the second largest disparity in the country, trailing only Michigan and leading Arizona, Vermont and Colorado in the top five. According to the Academy, the lack of funding can have major impacts on the U.S. and state economy in the future....

The Partnership for Safety and Justice is also calling for a decrease in the amount of money spent on prisons. The group fights for a decrease in crime and a change in the way the criminal justice system is funded. In an interview with GoLocal, Shannon Wight, Vice President of the Partnership for Safety and Justice, said that recent actions taken by the State of Oregon to cut prison spending should be only the beginning....

Business leaders told GoLocal that more spending for schools is crucial, especially given Oregon’s issues with education. "First and foremost, we need to improve the reputation of our education system," John Taponga, President of ECONorthwest, told GoLocal.

In order to do so, groups like the Partnership for Safety and Justice recommend taking a closer look at funding for education and incarceration. “A few years ago Pew did a similar analysis and what we learned from that is that it’s important to note is how much of our general fund we are spending on corrections vs education,” Wight said. “Certainly as a state we want to emphasize education over incarceration if we want to see the state, and its residents, thrive.”

Wight cautioned, however, that spending should be shifted gradually to avoid taking important resources away from those already serving time behind bars. “It’s important to remember that we can’t just spend less on prison and put all that money into schools right away,” Wight said. “We have to thoughtfully reduce the number of people in our correctional systems by evaluating who should be under correctional control and who shouldn’t; who should instead be receiving help from mental health or addiction services and who can be held accountable without doing prison time. Counties need the state investment to do that work effectively.”

The full report published by the American Academy for Arts and Sciences referenced in this article is available at this link.  The figure reprinted here comes from the report (which also details how increased spending on health care is another key factor reshaping how states spend limited resources).

January 8, 2016 in Data on sentencing, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2)

Wednesday, January 06, 2016

Making the case for a "20-Year Maximum for Prison Sentences"

Marc Mauer has this essay in Democracy: A Journal of Ideas which makes the case for a heavy presumption that no prison sentence should be longer than two decades.  Here are excerpts from the piece:

The excessively lengthy incarceration of offenders — yes, even for violent crimes — is counterproductive, costly, and inhumane.  To remedy this problem, Congress and state legislative bodies should establish an upper limit of 20 years in prison as a maximum penalty, except in unusual cases such as a serial rapist who has not been amenable to treatment in prison or a mass murderer.  The rationale for such a policy shift is grounded in both humanitarian and public-safety concerns.  Life sentences ruin families and tear apart communities; they deprive the person of the chance to turn his or her life around.  Moreover, it has long been known that individuals “age out” of crime, and that this occurs at a surprisingly young age.  As is true of all adults, offenders mature in prison as they age and develop a longer-term vision for their lives.  Research by leading criminologists Alfred Blumstein and Kiminori Nakamura demonstrates that an 18-year-old arrested for robbery is no more likely to be arrested for this crime by the age of 26 than anyone in the general population.  Thus, each successive year of incarceration after this decline sets in produces diminishing returns for public safety.

This impact comes at great cost as well.  Estimates are that the cost of imprisoning an elderly offender is double that of a young offender, largely due to high health-care costs. Given that public-safety resources are finite, incarcerating aging prisoners inevitably diverts resources from preschool programs, substance abuse treatments, and mental health interventions that all produce demonstrated and substantial crime-reduction benefits.

Lengthy prison terms also exacerbate the dramatic racial and ethnic disparities that have defined the phenomenon of mass incarceration.  Nationwide, nearly two-thirds of the people serving life in prison are African-American or Latino. The sight of elderly men of color in prison uniforms and bound in wheelchairs only reinforces the racialized nature of incarceration in the modern era.

Some skeptics would argue that while the public-safety argument may apply to many offenders, there are nonetheless individuals who present such a threat to the community that even 20 years in prison is not sufficient for public protection.  That’s certainly correct.  But the problem is that on the day of sentencing, no one — including the judge — can predict who those people are, or how individuals may mature over a 20-year period.

For this reason, policymakers could establish a mechanism to evaluate the public-safety risk of select prisoners as they near the end of their 20-year term.  A review board comprised of psychologists and other professionals could make recommendations either to a judge or a parole board regarding whether continued confinement is necessary for public safety.  And in such cases, they should also propose appropriate treatment interventions designed to produce behavioral change leading to eventual release.

While some might think this is unrealistic, sentences of more than 20 years are quite rare in many democratic nations. Norway, for example, limits prison terms to no more than 21 years, followed by a period of civil confinement when deemed necessary.  Even the worst mass killer in the country’s history, Anders Breivik, who killed 77 people in 2011, is serving such a prison term.  Contrast this to the current practice in the United States, where countless drug offenders are serving far lengthier terms.

January 6, 2016 in Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (5)

Monday, January 04, 2016

Excessive federal sentencing and strict mandatory minimums at center of armed "militia" occuptation in Oregon

23rd_Ohio_Volunteer_Infantry_Color_GuardBecause I am back to full-time teaching this week, I have not yet had much time to research closely the sentencing backstory seemingly inspiring a group of Americans to take up arms against the federal government in Oregon.  But a number of readers have made sure I did not miss that federal sentencing outcomes, and particularly the application of a 5-year mandatory minimum sentencing term, have been a central catalyst for what is now going on.  Helpful, this new lengthy Washington Post piece, headlined "What spurred the armed occupation of a federal wildlife refuge in southeast Oregon," provides some of the key sentencing details:

The several-hundred-person procession through Burns, Ore., concluded at Dwight Hammond’s doorstep early Saturday evening. In a town of less than 3,000 tucked in Oregon’s southeast corner, it was a massive show of support for Hammond, 73, and his son Steven, 46, as they prepared to report to federal prison Monday.

“I thank everyone who came out here today,” Dwight Hammond told the supporters after he and his wife hugged each of them. “See you in five years.” The father and son had been sentenced last year for setting fires on federal land, the conclusion of two decades of clashes between the Hammond family and the federal government that have made the ranchers a cause celebre for some on the right.

For their supporters, the Hammonds represent the latest battle in a struggle as old as the American settlement of the northwest: pitting poor cattle farmers against the federal government and its land regulations in states such as Oregon, where the government owns more than half of the land.

“Most Americans, if they knew the story of the threats and the charges brought against these ranchers, they would say this isn’t right,” said Jeff Roberts, one of the organizers of Saturday’s rally. “We really wanted to show the family support and let them know that they’re not alone. That Americans don’t turn their backs on them.”

But there is a stark divide among the ranks over how to best remedy the plight of the cattle rancher. Some activists, such as Roberts, think the battle will be won through a deliberate public awareness campaign, rallies and town hall meetings. Others, including some armed militias, have another tact in mind: armed resistance.

As Saturday’s rally concluded, a small subsection of attendees, led by Ammon Bundy, began launching into impromptu speeches and, to the horror of many of the rally’s primary organizers, declared that it was time for the group to take up arms. “Those who want to go take a hard stand, get in your trucks and follow me!” Bundy declared to the group at the conclusion of the event, according to several people who were in attendance. “We were just aghast,” Roberts said.

Within the hour, Bundy and about a dozen armed supporters had seized Malheur National Wildlife Refuge, posting armed men at the front gate and vowing to occupy the federal land for “years.”

His father, Cliven Bundy, a Nevada rancher who in 2014 had an armed standoff with federal agents who were attempting to prevent him from illegally grazing his cattle on federal land, who is not himself inside the refuge, told a reporter in Oregon that “150 militia men” had occupied the federal land. As of 6 p.m. Sunday, the armed men remained at the refuge. “There were absolutely not 150 of them,” Roberts said Sunday morning. “He had a small handful of supporters, maybe a dozen. I saw them as they pulled out in their trucks.”...

After a two-week trial, Dwight and Steven Hammond were convicted by jury. They were sentenced in October to five years in prison for committing arson on federal land in 2001 and 2006. The pair had been sentenced and served time previously, but on appeal a federal judge ruled that their initial sentences had been too short.

In the 2001 incident, the men, who had leased grazing rights to the land for their cattle, said they had started the fires on their own land to try to prevent the spread of an invasive species of plant, and that the fire had inadvertently burned onto public land. Prosecutors said the fire consumed 139 acres of public land, and was set in an attempt to hide evidence after the men were part of a hunting party that illegally killed several deer on the federal land.

In 2006, the Hammonds allegedly set a “back fire” meant to protect their land after a series of lightning storms had started a fire on the federal property. Prosecutors said that fire then spread onto the federal land.

“We all know the devastating effects that are caused by wildfires. Fires intentionally and illegally set on public lands, even those in a remote area, threaten property and residents and endanger firefighters called to battle the blaze” Acting U.S. Attorney Billy Williams said in a statement issued after the Hammonds were sentenced. “Congress sought to ensure that anyone who maliciously damages United States’ property by fire will serve at least 5 years in prison. These sentences are intended to be long enough to deter those like the Hammonds who disregard the law and place fire fighters and others in jeopardy.”

The sentence outraged many fellow ranchers and constitutionalist groups in the northwest, who considered the case an overreach of federal regulation and of the federal prosecutors. “We don’t agree with the sentencing, so we came out to stand in solidarity and support,” said Brandon Curtis, president of the Idaho chapter of Three Percent, a constitutionalist group that was heavily involved in organizing the rally for the Hammonds.

Most infuriating about the Hammond case, their supporters say, is that the two men were charged under a federal terrorism statute that requires a five-year mandatory minimum sentence for anyone convicted of arson on federal property. “I don’t think anybody would argue that arson took place . . . but to sentence this family as terrorists, we think that is absolutely egregious,” Roberts said. “These are just country folk, they’re not terrorists.”

Roberts, Curtis and others traveled to the Hammond home in recent weeks and began holding town hall meetings to try to build more local support for them — assuring residents that they were not there to “upend the town.” Despite encountering a lot of local skepticism, the men eventually found some allies — who started an organization called Harney County Committee of Safety and participated in Saturday’s rally.

But at the same time, the Bundy family had begun speaking out on behalf of the Hammonds. In early November, Ammon Bundy began posting updates on the case to his Facebook pages and website. “This last Wednesday I spent a good part of the day in the Hammond’s home. We spoke for hours. Several times, I found the Hammond’s in tears when they explained the injustices that has destroyed their lives,” Ammon Bundy wrote on Nov. 21. “They were hopeful that the American people were going to stand for them. And that, just maybe, they would be able to return to the life they once knew.”

January 4, 2016 in Mandatory minimum sentencing statutes, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (7)

Sunday, January 03, 2016

"Taking Another Look at Second-Look Sentencing"

The title of this post is the headline of this notable new article authored by Meghan Ryan and recently posted SSRN.  Based on the abstract alone, I am a big fan of this paper because it appears to explore rigorously a sentencing topic which I believe merits much more attention in an era marked by a record-high numbers of LWOP and other lengthy prison sentences: whether, why and how a sentence imposed long ago can and should be reconsidered anew.  Here is the abstract:

A historically unprecedented number of Americans are currently behind bars.  Our high rate of incarceration, and the high bills that it generates for American taxpayers, has led to a number of proposals for sentencing reform.  For example, bills were recently introduced in both the House and Senate that would roll back federal mandatory minimum sentences for certain drug offenders, and the Obama Administration has announced a plan to grant clemency to hundreds of non-violent drug offenders.

Perhaps the most revolutionary proposal, though, is one advanced by the drafters of the Model Penal Code, namely that judges be given the power to resentence offenders who have been serving long sentences on the ground that societal views about the seriousness of the offenses these individuals committed have changed.  These evolved societal views, the drafters have asserted, might justify reducing the offenders’ sentences.  The drafters of the Code have suggested that this position is based in part on retributivism — on what these particular defendants deserve as a result of committing these crimes.  

But an offender’s desert ordinarily does not change as time progresses; it is societal views of desert that change.  This raises a new question in criminal law about whether the original sentencer — the one imposing punishment at the time of trial — or a new sentencer — one imposing punishment over a decade after the offense was committed — is better positioned to determine the offender’s desert.  The drafters of the Code have proffered that a new sentencer is best because it can be more representative of modern values.  But the new sentencer does not represent the public against which the offense was committed.  And the new sentencer may not be well positioned to assess the offender’s culpability or the harm he caused.  

The new sentencer may be in a better position to know whether, as time has passed, the offender has been rehabilitated or whether he still poses a danger to society, but these factors are not based on the offender’s desert.  While these other utilitarian considerations may certainly justify second-look sentencing, and while second-look sentencing may very well be a useful innovation, this new approach to sentencing overlooks the important desert-based restraints of limiting retributivism upon which the Code is based.  Reliable assessments of an offender’s desert generally best lie with the decisionmakers in place around the time the crime was committed.

January 3, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Tuesday, December 29, 2015

New BJS data show continued (very) slow decline in correctional populations in US

One of the many joys of the holiday season for data junkies is new releases of new official reports from the Bureau of Justice Statistics.  This latest one, excitingly titled "Correctional Populations in the United States, 2014," was released today at this BJS webpage where one can also find this summary of the report's basic coverage main findings:

Presents statistics on persons supervised by adult correctional systems in the United States at yearend 2014, including offenders supervised in the community on probation or parole and those incarcerated in state or federal prison or local jail. The report describes the size and change in the total correctional population during 2014. It details the downward trend in the correctional population and correctional supervision rate since 2007. It also examines the impact of changes in the community supervision and incarcerated populations on the total correctional population in recent years. Findings cover the variation in the size and composition of the total correctional population by jurisdiction at yearend 2014. Appendix tables provide statistics on other correctional populations and jurisdiction-level estimates of the total correctional population by correctional status and sex for select years.

Highlights:

  • Adult correctional systems supervised an estimated 6,851,000 persons at yearend 2014, about 52,200 fewer offenders than at yearend 2013.
  • About 1 in 36 adults (or 2.8% of adults in the United States) was under some form of correctional supervision at yearend 2014, the lowest rate since 1996.
  • The correctional population has declined by an annual average of 1.0% since 2007.
  • The community supervision population (down 1.0%) continued to decline during 2014, accounting for all of the decrease in the correctional population.
  • The incarcerated population (up 1,900) slightly increased during 2014.

December 29, 2015 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Recuenco and review of Blakely error, Scope of Imprisonment | Permalink | Comments (1)

Tuesday, December 22, 2015

"To forgive prisoners is divine — or as close as government gets"

The title of this post is the sub-headline of this notable new commentary published by the American Conservative and authored by Chase Madar under the main headline "The Case for Clemency."  I recommend the lengthy piece in full, and here are excerpts:

President Obama’s recent announcement that he would commute the sentences of 95 federal prisoners and fully pardon two others is welcome news.  So is a holiday press release from New York Governor Andrew Cuomo, who has hitherto been miserly with clemency, but will pardon nonviolent offenses committed by 16 and 17 year olds (who will continue to be automatically tried as adults, a harshness almost unique among the fifty states).  But we should see these gestures for what they are: small trickles of clemency where what is demanded is a rushing, roaring pipeline scaled to the globally unprecedented size of our prison population and incarceration rate. We need industrial-scale clemency.  Here is why and how....

At the federal level — which only accounts for about 12 percent of U.S. prisoners — mild sentencing reform has both bipartisan support and bipartisan resistance in the Senate.  Looking to the states, a much hyped “moment” of criminal-justice reform is more than countervailed by the deeply ingrained punitive habits of governors and legislatures across the land, from Massachusetts, whose liberal governor signed a tough “three strikes” law in 2012, to Louisiana, where Bobby Jindal upped penalties for heroin-related offenses.

Whether we admit it or not, we are in quite a spot: our hyper-incarceration is unprecedented in U.S. history.  Rectifying this will require changes in policing, a cutting back of what we criminalize, and serious revision of our sentences, which far outstrip their deterrent value.  Another part of the solution will have to be clemency on a massive scale: pardons, which all but expunge a criminal record; commutations, which shorten a prison sentence; parole; geriatric and compassionate release; and retroactive sentencing reform.

As of this writing, Obama has issued more commutations than any other president since Lyndon Johnson.  But the supply of imprisoned Americans is orders of magnitude greater than it was in Johnson’s day, and Obama has only granted pardons or commutations at the exceedingly stingy rate of one out of 136, in line with the steep plummet in clemency since World War II. The Department of Justice has promised to routinize clemency, issuing new guidelines for nonviolent offenders who have served 10 years already, but the results so far have been bonsai-scaled in comparison to the magnitude of the federal prison population....

So much for Washington, which despite much misty-eyed self-congratulation has not shown itself up to the task of scaling back our prison state.  Washington’s timidity means less than it first appears however: despite lazy media focus on the federal justice system, the real action is at the state level, which handles most policing, sentencing, and imprisoning.  Alas, here too the general trend has been towards greater stinginess with clemency. 

Take the example of Minnesota, a state that has, by U.S. standards, a low incarceration rate and arguably the most humane penal system in the country, with perhaps more in common with Denmark and Germany than with Texas and Louisiana.  Yet it says something that Mark Dayton, one of the most progressive governors in the country, has a more merciless default setting than virtually all of his executive predecessors from the mid-20th century.  Minnesota used to grant pardons and commutations by the barrelful: from 1940-89, the state granted 741 commutations and nearly 90 percent of all pardon applications.  Minnesota’s clemency process began to tighten in the 1970s, only to be choked off further in the 1980s. From 2000-10, the number of pardons plummeted. In the past quarter-century, Minnesota has not issued a single commutation.

The barriers to mercy are dug deeply into American politics and intellectual culture.  At the same time there is a rich tradition of clemency in this country, which can and should be tapped into.... Devotion to the Rule of Law has an ugly side in resentment of executive acts of mercy, at the level of practice and high theory.... Overall, the thrust of American legalism militates against executive clemency, which seems to many a kind of short circuit, a deus ex machina, an insult to the rule of law, smelling of elitism and monarchical whims....  (And it has to be said, occasionally this image of executive mercy as sleazy end-run around the justice system is correct: think of Bill Clinton granting a full pardon to felonious oil trader Marc Rich, whose ex-wife had been a major Democratic fundraiser.)

But in the face of this hostility to the pardon power there is a great counter-tradition of American clemency.  At the founding of the country, executive power was seen not as a violation of our self-image as a “nation of laws not men” but as a necessary and healthily legitimate part of any popular government. As Hamilton wrote in Federalist 74: “the benign prerogative of pardoning should be as little as possible fettered.”  Without pardon power, “justice would wear a countenance too sanguinary and cruel.”...

U.S. history turns out to be generously littered with acts of mass clemency.  In the 1930s, Mississippi Governor Mike Conner went to Parchman Farm, the state penitentiary, and held impromptu “mercy courts” that freed dozens of African-American prisoners, in an act that entered national folklore — as did Texas Governor Pat Neff’s pardon in 1925 of Huddie “Lead Belly” Ledbetter, who issued his clemency request in song.  In the 20th century, Governors Lee Cruce of Oklahoma, Winthrop Rockefeller of Arkansas, and Toney Anaya of New Mexico all commuted their states’ death rows down to zero upon leaving office.  Among presidents, according to political scientist P.S. Ruckman Jr’s excellent blog Pardon Power, Abraham Lincoln granted clemency every single month of his administration as an act of mercy and a canny political strategy.  Woodrow Wilson, though a teetotaler himself, pardoned hundreds convicted of booze-related infractions to signal his disapproval of Prohibition....

Reversing course on hyper-incarceration and clemency will be a generational project, and an Augean one at that. Judges and prosecutors are not the most self-effacing career group, and many would sooner eat their Civil Procedure books than admit error.... But for most people, clemency in cases of judicial and prosecutorial error is a no brainer: the law’s finality should not come at the expense of justice.   The type of clemency we need today, however, is to remedy a problem several orders of magnitude larger, admitting not legal or judicial error but political or legislative disaster.  A rushing, roaring clemency pipeline would be an explicit recognition that the various state and federal tough-on-crime policies, virtually all of which passed with broad bipartisan support, were dead wrong....

Our incarcerated population is also aging rapidly, and though older prisoners have far lower recidivism rates, few states are availing themselves of geriatric release. For instance, Virginia in 2012 granted geriatric release to less than 1 percent of about 800 prisoners eligible, according to the state parole board. Meanwhile, as the Virginian Pilot reported, “during the same period, 84 inmates died in state prisons.” Running high-security nursing homes is neither compassionate nor fiscally sound—another reason to restore and expand clemency.

What is needed is a restoration of the kind of clemency that was once the everyday norm in this country, expanded to meet the needs of our enormous 21st-century prison population.  There will surely be stentorian howling that industrial-scale clemency is the invasive hand of overweening government power.  These fault-finders ought to be reminded that our incarceration regime is on a scale rarely seen in human history: our only competitors are third-century BC “legalist” China; the late, off-the-rails Roman Empire; and the Soviet Union from 1930-55.  Routinized clemency on a grand scale will be necessary to tame this beast.

To say that mass incarceration is an issue best addressed by the legislature, not by the executive, is theoretically correct.  But procedural rectitude should not be taken to the point of sadism, ignoring the tens of thousands of harshly sentenced prisoners who are already stuck halfway through the penal snake’s digestive tract.  Besides, this would hardly be the first time that elected officials have used the pardon power as a tool to alter policy.  To give one more glorious example, on Christmas Day in 1912, Governor George Donaghey of Arkansas pardoned 360 state prisoners as a condemnation of the state’s brutal and corrupt “convict leasing” system, making national headlines and dealing a death blow to the corrupt practice.

The time is as ripe as it will ever be for industrial-scale clemency . Even with an 11 percent average increase in homicides in big American cities for 2015 so far (bringing the nation back to 2012 murder levels), violent crime is as low as it’s been since the early 1960s....  How we proceed with clemency is not just about how we treat thousands of prisoners..., it is about how we treat ourselves. According to Shakespeare’s most famous courtroom speech, mercy “blesseth him that gives and him that takes: ‘Tis mightiest in the mightiest: it becomes the throned monarch better than his crown.” With an expansion of the pardon power, we have the opportunity to rule ourselves as monarchs, with all the magnanimity and grace that implies. Or we can remain a nation of vindictive jailers that lectures the rest of the world about freedom.

December 22, 2015 in Clemency and Pardons, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Monday, December 21, 2015

Federal judge enjoins Tennessee county's privatized probation system operating like debtors' prison

As reported in this local article, "Judge's order frees 13 held for not paying probation fees," a group of probationers got a holiday gift in the form of a significant federal judicial order preventing a locality for jailing low-level offenders for failing to pay fines or court costs. Here are the basics:

Heather Keller is looking forward to spending Christmas with her children after a federal judge's order set her free from the Rutherford County Detention Center Friday afternoon. A day earlier, a federal judge in Nashville granted an injunction that prevented officials and probation supervisors in Rutherford County from holding people in jail for certain violations or only because they could not pay fees. It also said that anyone being held for those reasons should be let go.

Keller, 35, was one of 13 inmates released from the jail in Murfreesboro who were held there because they could not pay fees to the private company contracted to oversee the Rutherford County misdemeanor probation system. The injunction that won Keller’s release was part of a lawsuit filed against Providence Community Corrections, which has changed its name to Pathways Community Corrections.

The suit was filed in October and accuses Rutherford County and PCC of working together to extort people on probation there by charging excessive fees. Many of the seven people named in the lawsuit rely on government assistance and have said in court testimony or documents that PCC's excessive fees leave them struggling to pay bills and facing extended probation terms because they cannot pay court costs.

It is a practice Alec Karakatsanis, attorney for the plaintiffs, likens to the operation of a debtors' prison. Karakatsanis said Sharp's order is only the beginning of possible probation reform in Rutherford County.

“We will fight to end permanently what we believe to be the rise of a modern debtors' prison system in which the poor and destitute are jailed and threatened with jail solely because of their inability to make monetary payments to a private company and their local government,” Karakatsanis said. “This is a very important ruling for impoverished people in Tennessee.”

The injunction was granted by Chief District Judge Kevin Sharp in Nashville. In addition to freeing these prisoners, Sharp also ordered PCC immediately stop the practice of violating probationers solely for non-payment of fees.

Keller was originally arrested for driving on a suspended license and since has been jailed twice for non-payment of probation fees, she said. “I’ve spent more time in jail for non-payment than the original charge,” Keller said.

And Sharp ordered Rutherford County Sheriff Robert Arnold to free any inmates held on violation of probation charges stemming solely from non-payment of fees and fines.

The federal district judge's 20-page injunction order in Rodriguez v. Providence Community Corrections is available for download here:  Download Opinion Granting Injunction

December 21, 2015 in Fines, Restitution and Other Economic Sanctions, Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)