Wednesday, December 02, 2015
"The Promises and Perils of Evidence-Based Corrections"
The title of this post is the title of this notable new paper authored by Cecelia Klingele and now available via SSRN. Here is the abstract:
Public beliefs about the best way to respond to crime change over time, and have been doing so at a rapid pace in recent years. After more than forty years of ever more severe penal policies, the punitive sentiment that fueled the growth of mass incarceration in the United States appears to be softening. Across the country, prison growth has slowed and, in some places, has even reversed. Many new laws and policies have enabled this change. The most prominent of these implement or reflect what have been called "evidence-based practices" designed to reduce prison populations and their associated fiscal and human costs. These practices "which broadly include the use of actuarial risk assessment tools, the development of deterrence-based sanctioning programs, and the adoption of new supervision techniques" are based on criminological research about "what works" to reduce convicted individuals' odds of committing future crimes.
Because evidence-based practices focus on reducing crime and recidivism, they are usually promoted as progressive tools for making the criminal justice system more humane. And while many have the potential to do just that, evidence-based practices are not inherently benign with respect to their effect on mass incarceration and the breadth of the penal state. In their reliance on aggregate data and classification, many such practices have as much in common with the "new penology" that enabled mass incarceration as with the neorehabilitationism they are ordinarily thought to represent.
Without denying the contribution that such practices are making to current reform efforts, this Article seeks to highlight the unintended ways in which evidence-based tools could be used to expand, rather than reduce, state correctional control over justice-involved individuals. It explains what evidence-based practices are, why they have gained traction, and how they fit into existing paradigms for understanding the role of the criminal justice system in the lives of those subject to its control. Finally, it calls on policymakers and practitioners to implement these practices in ways that ensure they are used to improve the quality and fairness of the criminal justice system and not to reinforce the institutional constructs that have sustained the growth of the penal state.
December 2, 2015 in Data on sentencing, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4)
Sunday, November 29, 2015
Pollard, parole and the possibilities for potent sentencing reform
Writing at Salon, Daniel Denvir has this interesting and useful take on the recent release of convicted spy Jonathan Pollard. Here is the full headline of this piece: "People are celebrating this spy’s release from prison. Here’s what they should be doing instead. Jonathan Pollard sold intel to Israel. 30 years later, he's free. But thousands of others have no chance of parole." Here are excerpts:
Last Friday, something extraordinary happened: Jonathan Pollard, a Naval intelligence analyst sentenced to life in prison for extensively spying for Israel, was released from federal prison on parole 30 years after his arrest. Most coverage, now and in recent decades, has focused on the campaign waged by Israeli and Jewish-American leaders to free him, and the vehement opposition mounted by American intelligence figures.
The real scandal, however, is that most federal prisoners, including drug offenders make up nearly half of a federal prison population of nearly 200,000, have no chance at parole. Pollard’s crime was incredibly serious, and many drug offenders who committed crimes orders of magnitude less harmful are serving harsh mandatory minimums of 5, 10 and 20 years, if not life — all without the possibility of parole.
Pollard’s release has been covered in the context of national security intrigue. In fact, his parole reflects a quirk in federal sentencing law: He had a shot at parole because he committed his crime before parole eligibility was abolished for all those convicted of committing a federal crime on or after November 1, 1987, amidst a wave of tough-on-crime politicking.
Pollard is a true anomaly. According to a 2014 Congressional Research Service report, roughly 3 percent of federal prisoners are eligible for parole. When Pollard finally speaks to the media—he is reportedly not allowed to under the conditions of his parole—it would be good of him to express some solidarity with the far less dangerous fellow federal inmates he left behind.
The abolition of federal parole, and its sharp limitation or elimination in many states, has, like the introduction of harsh mandatory minimum sentences, been a major driver of this country’s extraordinary prison population boom. From 1988 to 2012, the average time federal inmates served rose from 17.9 to 37.5 months, according to The Pew Charitable Trusts. The federal prison population rose during that same period from 49,928 inmates to 217,815....
Releasing Pollard was not a bad thing. Few people deserve punishment without end. We punish most every crime far too harshly in the United States, which is how we came to construct a system of human punishment unmatched by any nation on earth. But Pollard’s crimes were extremely serious. Compare his crimes to those committed by Alton Mills, who is serving a life without parole sentence after being convicted of couriering crack because of two prior, extremely minor, drug possession convictions. Mills’ family misses him too. And desperately so.
It’s not just a federal problem but also a matter for the states, where the bulk of American prisoners are incarcerated. Fourteen states joined the federal government in eliminating or severely restricting parole, according to a Marshall Project investigation.
“In the early 1990s, the New York state board voted to parole more than 60 percent of those eligible. That rate then went into a two-decade decline, dipping below 20 percent in 2010,” the investigation found. “In many states, parole boards are so deeply cautious about releasing prisoners who could come back to haunt them that they release only a small fraction of those eligible — and almost none who have committed violent offenses, even those who pose little danger and whom a judge clearly intended to go free.”
Sen. Bernie Sanders, a Democratic candidate for president, has introduced legislation that would reestablish federal parole. Most media attention has been focused on bill provisions banning private prisons. But reestablishing parole would be far more consequential. (The Clinton campaign did not respond to requests for comment.)
Way back in 2009 in this Symposium article published in the Florida Law Review, I made the claim that model modern sentencing reforms should include parole mechanisms because "parole boards possess both the effective legal tools and an ideal institutional perspective to reduce incarceration rates and mitigate extreme punishments." I therefore agree wholeheartedly agree with the suggetion in Denvir's piece that reinstituting robust parole mechanisms and opportunities in many sentencing systems would provide a truly potent path for future sentencing reforms.
Friday, November 27, 2015
"Prisons as Panacea or Pariah?: The Countervailing Consequences of the Prison Boom on the Political Economy of Rural Towns"
The title of this post is the title of this notable new paper by John Major Eason available via SSRN. Here is the abstract:
The nascent literature on prison proliferation in the United States typically reveals negative impacts for communities of color. Given that southern rural communities of color were the most likely to build during the prison boom (1970-2010), however, a more nuanced understanding of prison impact is warranted.
Using a dataset matching and geocoding all 1,663 U.S. prisons with their census appointed place, this study explores the countervailing consequences of the prison boom on rural towns across multiple periods. For example, locales that adopted prisons at earlier stages of the prison boom era received a short-term boon compared to those that did not, but these effects were not lasting. Furthermore, later in the boom, prison building protected towns against additional economic decline. Thus, neither entirely pariah nor panacea, the prison serves as a state-sponsored public works program for disadvantaged rural communities of color but also supports the perverse economic incentives for prison proliferation. Methodological, substantive, theoretical, and policy implications regarding the intersection of race and punishment are explored.
Spotlighting why ending the drug war could make a big dent in mass incarceration
This new Washington Post Wonkblog posting by Christopher Ingraham, headlined "Drug offenders make up nearly one-third of prison admissions, new analysis shows," details one reason why I think ending the so-called "war on drugs" would be a very important first step toward tackling the problem of modern mass incarceration. Here is how it starts (with links from the source):
Drug policy activists long have said that decriminalizing parts of the drug trade would relieve some of the burden on overcrowded prisons. But some researchers have pushed back against this notion in recent years. They point out that drug offenders account for only about 1 in 5 state and federal inmates. The Urban Institute showed earlier this year that cutting drug admissions in half would reduce the state prison population by only about 7 percent. Facts like these have led some to conclude that ending the drug war will do little to end the mass incarceration crisis.
But in a new analysis published this week, Brookings Institution fellow Jonathan Rothwell says that arguments about the impact of drug reforms on prison populations have overlooked one key distinction: the difference between the number of people in prison at any given time, and the number of people moving into and out of prison. Rothwell calls this "stock and flow."
He points out that while drug offenses account for only 20 percent of the prison population, they make up nearly one-third — 31 percent — of the total admissions to prison. The reason for the difference? Drug offenders typically serve shorter sentences than, say, murderers or other violent criminals. So simply looking at the number of people in prison at a given point in time understates the true impact of drug laws on incarceration.
"Drug crimes have been the predominant reason for new admissions into state and federal prisons in recent decades," Rothwell writes. "In every year from 1993 to 2009, more people were admitted for drug crimes than violent crimes."
Rothwell agrees that rolling back the drug war won't totally solve the incarceration problem. "But it could help a great deal, by reducing exposure to prison," he writes. Even a brief jail or prison sentence — even just an arrest — can have dire consequences for people at the poorer margins of society. A 30-day jail term for a pot bust, for instance, can mean the loss of a job, the loss of income, and an eventual turn to crime to survive.
Thursday, November 26, 2015
So thankful for federal judges encouraging prosecutors to reconsider extreme sentence... but...
I wish that such reconsideration of extreme sentences were more the norm than the exception in our modern era of mass incarceration. The notable new judicial trend for which I am thankful was discussed earlier this week in this Wall Street Journal article headlined "Persuasive Judges Win Reduced Sentences for Some Convicts: Federal prosecutors agree to do-overs in a handful of cases, another sign of shifting attitudes about punishment." Here are excerpts:
Francois Holloway became a free man this year three decades earlier than planned, thanks to a well-placed ally. U.S. District Judge John Gleeson in Brooklyn, N.Y., who put Mr. Holloway away in 1996 for participating in armed carjackings, had lobbied prosecutors for years to reduce Mr. Holloway’s 57-year sentence.
Federal trial judges have little leeway in sentencing when prosecutors trigger mandatory-minimum laws that set floors for punishment, and they have few means of revisiting closed cases, unless new evidence comes to light or a major legal error was committed. But they can be persuasive. Federal prosecutors have agreed in recent years to sentence reductions in a handful of cases, most after public pressure from judges.
Such do-overs are another sign of shifting attitudes about punishment and growing bipartisan support for criminal justice policies that emphasize rehabilitation. The practice does have its detractors, who say such relief should come from the White House in the form of commutations and pardons, not from the courthouse.
So far, the cases have tended to involve defendants who rejected plea deals, lost at trial and received prison terms several times larger than they would have if they had they pleaded guilty, sometimes called a “trial penalty.” Mr. Holloway balked at a deal that would have sent him to prison for about 11 years. He ended up receiving a mandatory minimum of 45 years because one of his co-assailants brandished a gun during the three carjackings. He earned the balance for stealing the vehicles, per federal sentencing guidelines that were binding on Judge Gleeson at the time....
After Mr. Holloway lost his appeal, he turned to a federal law frequently used by federal prisoners to challenge their sentences as excessive or to show that their lawyers were ineffective to the point of depriving them of their rights. At the urging of Judge Gleeson, the U.S. attorney’s office in Brooklyn last year withdrew its opposition to Mr. Holloway’s petition, citing his “extraordinary” record while in prison, as well as the responses of Mr. Holloway’s victims, who supported his early release. Attorney General Loretta Lynch headed the U.S. attorney’s office at the time. Judge Gleeson vacated two of Mr. Holloway’s convictions and resentenced him to time served. “Prosecutors are almost never criticized for being aggressive,” he wrote in a July 2014 ruling lauding Ms. Lynch’s move. “Doing justice can be much harder.”
U.S. attorneys have accepted reduced punishments “where prosecutors, the court and victims have agreed that a sentence is unjust,” but such cases are rare, said Melanie Newman, a spokeswoman for Ms. Lynch. “The government nearly always seeks to preserve the finality of sentences where there is no legal flaw,” Ms. Newman said.
Harlan Protass, a partner at Clayman & Rosenberg LLP who represented Mr. Holloway, said the case has become a model for taking a second look at sentences. Mr. Protass and Sam Sheldon, a partner at Quinn Emanuel Urquhart & Sullivan LLP in Washington, D.C., hope to establish a law-school clinic with the mission of persuading the government to allow new sentence hearings and reduced prison terms for certain offenders....
In another New York case, Randy Washington, a crack-cocaine dealer from the Bronx convicted of armed robbery, found a friend in his sentencing judge, who last year admonished prosecutors to consider whether the 52-year mandatory-minimum prison sentence Mr. Washington faced was “worthy of the public’s trust and confidence.” His punishment later was cut in half.
Prosecutors in Oklahoma agreed this year to allow an Army National Guard veteran sentenced to life for cocaine smuggling to leave prison after serving nearly three decades. In Atlanta, the government shortened from life to 25 years the sentence of a man convicted of cocaine distribution. Meanwhile, prosecutors in Montana dismissed several gun and drug counts against a medical-marijuana grower, lopping off 80 years of an 85-year mandatory sentence....
Some federal prosecutors have declined requests by federal judges for shorter sentences. In Philadelphia, U.S. District Judge Jan DuBois recently implored prosecutors for a penalty that “better serves the interests of justice” in the case of Tyrone Trader, who was convicted for his role as a street-level dealer in a cocaine-trafficking conspiracy... Mr. Trader received a mandatory life sentence under federal law, after the Justice Department filed a notice with the court showing Mr. Trader had prior felony drug convictions. The other street-level dealers who took pleas have been released from prison, Judge DuBois noted, adding that the average federal sentence for murder was less than 23 years in fiscal 2014. “It is difficult to see how a sentence of life imprisonment in Trader’s case is just,” Judge DuBois wrote in an August ruling.
U.S. Attorney Zane David Memeger said in a statement that the government carefully considers each case before making charging decisions and that there was “no basis” for reducing Mr. Trader’s sentence.
November 26, 2015 in Examples of "over-punishment", Mandatory minimum sentencing statutes, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)
Monday, November 23, 2015
NY Times editorial: "Cut Sentences for Low-Level Drug Crimes"
This New York Times editorial provides a glimpse into the latest state (and notable criticisms) of federal statutory sentencing reform making slow-but-steady progress in Congress. Here is how it starts and ends:
Now that Congress is within sight of passing the most significant federal sentencing reforms in a generation, it’s worth taking a closer look at where the legislation falls short.
The main driver of the federal prison population is, by far, the dramatic increase in the time people spend behind bars — specifically, those convicted of drug offenses, who account for nearly half of the nation’s 199,000 federal inmates. From 1988 to 2012, the average time served for drug crimes more than doubled in length, according to a new report by the Pew Charitable Trusts. That increase in the length of drug sentences comes at a great expense: an estimated $1.5 billion each year, based on how much it costs to keep a federal inmate behind bars.
The new sentencing-reform bills now moving through the Senate and House would help reduce some of the longest mandatory-minimum sentences, including ending the use of life without parole for drug crimes, and would give judges more power to impose a shorter sentence when the facts of a case warrant it.
But these fixes do not reach to the heart of the problem, which is that the vast majority of federal drug offenders serving outsize sentences are in for low-level, non-violent crimes, and have no serious history of violence. More than half of the current drug-offender population has no violent history at all, according to a new analysis by the Urban Institute and the Charles Colson Task Force on Federal Corrections. Less than 14 percent were sentenced for using or threatening to use violence, or directing its use. And only 14 percent were sentenced for having a high-level or leadership role in a drug operation, the study found....
A critical fix Congress could make right now would be to change the law so that a person’s sentence is determined by his role in a drug operation, and not by the entire amount of drugs found in that operation, which is a poor measure of culpability.
One version of the sentencing reform legislation, introduced in the House by Jim Sensenbrenner, Republican of Wisconsin, and Robert Scott, Democrat of Virginia, would have addressed this issue squarely by applying many mandatory minimum sentences only to the leaders of a drug organization. But that smart idea was heavily watered down in the bills passed by the Senate and House Judiciary Committees in recent days. Congress should resurrect this sensible provision, which would go a long way toward bringing some basic fairness and rationality back into the nation’s horribly skewed drug laws.
Some recent related posts:
- House Judiciary Committee advances its Sentencing Reform Act of 2015 for full House consideration
- SRCA 2015 passes through Senate Judiciary Committee by vote of 15-5
- Will new House Speaker Paul Ryan significantly help getting federal sentencing reform enacted?
- "Prison Time Surges for Federal Inmates"
- "Who Gets Time for Federal Drug Offenses? Data Trends and Opportunities for Reform"
Saturday, November 21, 2015
Latest BJS official data show reduction of offenders on probation and parole
As reported in this official press release, the Bureau of Justice Statistics this past week released this report, titled "Probation and Parole in the United States, 2014," providing the latest official data on offenders under community supervision throughout the nation. Here are some data highlights from the press release:
The one-percent decline in the number of adults supervised in the community on probation or parole between yearend 2013 and 2014 marked the seventh consecutive year of decline in the population, the Bureau of Justice Statistics (BJS) announced today. In the past seven years, adults under community supervision declined between 0.5 percent and 2.6 percent annually, or by nearly 400,000 offenders over the 7-year period.
Between yearend 2008 and 2014, the probation population fell 10 percent, while the parole population increased nearly 4 percent. Probation is a court-ordered period of supervision in the community, generally used as an alternative to incarceration, and parole is a period of conditional supervised release in the community following a prison term.
An estimated 4.7 million adults were under correctional community supervision in the United States on December 31, 2014, down 45,300 offenders from the same day in 2013. The decline in community supervision was due to a drop in the number on probation that was offset by an increase in the number on parole. Between yearend 2013 and 2014, the probation population decreased by 46,500 offenders (from 3,910,600 to 3,864,100 offenders) while the parole population increase by 1,700 offenders over the same period (from 855,200 to 856,900 offenders)....
Other probation findings include —
- About 25 percent of probationers were female in 2014, up from 22 percent in 2000....
- Of all persons on probation during 2014, the incarceration rate (5 percent) among those violating their conditions of supervision — including incarceration for a new offense, a revocation and other reasons — was similar to the rate observed in 2013 (5.4 percent).
Other parole findings include —
- Twelve percent of parolees were female in 2014, unchanged from 2000.
- In 2014, nearly a third (31 percent) of parolees were being supervised for violent offenses, about a third (31 percent) for drug crimes and nearly a quarter (22 percent) for property offenses....
- Among all persons on parole during the year, an estimated 9 percent were reincarcerated in 2014, a rate similar to 2013.
Friday, November 20, 2015
"Prison Time Surges for Federal Inmates"
The title of this post is the headline of this notable Issue Brief released this wqeek by the Pew Public Safety Performance Project. Here is how it gets started (with notes omitted):
The average length of time served by federal inmates more than doubled from 1988 to 2012, rising from 17.9 to 37.5 months. Across all six major categories of federal crime — violent, property, drug, public order, weapon, and immigration offenses — imprisonment periods increased significantly. (See Figure 1.) For drug offenders, who make up roughly half of the federal prison population, time served leapt from less than two years to nearly five.
Mandatory minimum sentencing laws, the elimination of parole, and other policy choices helped drive this growth, which cost taxpayers an estimated $2.7 billion in 2012 alone. Despite these expenditures, research shows that longer prison terms have had little or no effect as a crime prevention strategy — a finding supported by data showing that policymakers have safely reduced sentences for thousands of federal offenders in recent years.
Two factors determine the size of any prison population: how many offenders are admitted to prison and how long they remain. From 1988 to 2012, the number of annual federal prison admissions almost tripled, increasing from 19,232 to 56,952 (after reaching a high of 61,712 in 2011). During the same period, the average time served by released federal offenders more than doubled, rising from 17.9 to 37.5 months. These two upward trends ...caused a spike in the overall federal prison population, which jumped 336 percent, from 49,928 inmates in 1988 to an all-time high of 217,815 in 2012. One study found that the increase in time served by a single category of federal offenders — those convicted of drug-related charges — was the “single greatest contributor to growth in the federal prison population between 1998 and 2010.”
The long-term growth of this population has driven a parallel surge in taxpayer spending. As Pew reported in February 2015, federal prison spending rose 595 percent from 1980 to 2013, from $970 million to more than $6.7 billion in inflation-adjusted dollars. Taxpayers spent almost as much on federal prisons in 2013 as they spent in 1980 on the entire U.S. Justice Department — including the Federal Bureau of Investigation, the Drug Enforcement Administration, and all U.S. attorneys.
Thursday, November 19, 2015
"States of Women's Incarceration: The Global Context"
The title of this post is the title of this effective new on-line report by the Prison Policy Initiative. Here is how it gets started:
We already know that when it comes to incarceration, the United States is truly exceptional. As we have reported previously, the United States incarcerates 716 people for every 100,000 residents, more than any other country. Worldwide, and within the U.S., the vast majority of those incarcerated are men. As a result, women's incarceration rates are overshadowed and often lost in the data. As a first step in documenting how women fare in the world's carceral landscape, this report compares the incarceration rates for women of each U.S. state with the equivalent rates for countries around the world.
Across the globe, the 25 jurisdictions with the highest rates of incarcerating women are all American states. Thailand, at number 26, is the first non-U.S. government to appear on this high-end list, followed closely at number 27 by the Unites States itself. The next 17 jurisdictions are also American states.
Overall, with the exception of Thailand and the U.S. itself, the top 44 jurisdictions throughout the world with the highest rate of incarcerating women are individual American states. Nearly 30% of the world's incarcerated women are in the United States, twice the percentage as in China and four times as much as in Russia.
Putting U.S. states in a global context is sobering; even the U.S. states that have comparatively low rates of incarceration far out-incarcerate the majority of the world. Illinois' incarceration rate for women is on par with El Salvador, where abortion is illegal and women are routinely jailed for having miscarriages. New Hampshire is on par with Russia, and New York with Rwanda.
Rhode Island, which has the lowest incarceration rate for women in the U.S., would have the 15th highest incarceration rate in the world if it were a country. In other words, only 14 countries (not including the United States) incarcerate women at a higher rate than Rhode Island, the U.S. state that incarcerates women at the lowest rate of imprisonment.
Tuesday, November 17, 2015
"Aging in Prison: Reducing Elder Incarceration and Promoting Public Safety"
The title of this post is the title of this notable new report from published by the Center for Justice at Columbia University. Here is the report's executive summary:
Columbia University’s Center for Justice, with Release Aging People in Prison/ RAPP, the Correctional Association of New York, the Osborne Association, the Be the Evidence Project/Fordham University, and the Florence V. Burden Foundation, coordinated a symposium in Spring of 2014 to discuss the rapidly growing population of elderly and aging people in prison. In attendance at the symposium were researchers, policy advocates, current and former policy makers and administrators, elected and appointed officials, and those who have directly experienced incarceration.
All agreed that while the overall prison population of New York State has declined in the past decade, the number of people aged 50 and older has increased at an alarming rate. The symposium provided the time and space for key stakeholders and actors to think critically about how best to address the phenomenon of New York’s aging prison population without compromising public safety.
A series of papers emerged from the symposium. Together, they provide a rich overview and analysis of aging people in prison from some of the best thinkers in this field. While the authors differ in opinion over some issues, they share several key observations and recommendations:
In New York State, the aging prison population continues to rise. The population of incarcerated people aged 50 and older has increased by 81% since the early 2000’s. Currently, people aged 50 and older comprise more than 17% of the prison population. The well-documented racial disparities in the criminal justice system are also reflected in the aging prison population — a vastly disproportionate percentage of aging people in prison are Black men and women.
Prisons were not meant to be nursing homes and are poorly equipped to house an aging population. Basic structural limitations create formidable difficulties for elderly people in prison who often have limited mobility. The lack of medical or correctional staff with specialized knowledge in geriatric care significantly impairs prisons from providing appropriate care to people experiencing chronic medical problems.
Incarcerating the elderly has serious financial implications. The cost of incarcerating someone aged 50 and older is two to five times the cost of incarcerating someone 49 and younger. An economist who presented at the symposium estimated that the United States spends at least $16 billion annually on incarcerating elderly people.
The explosion in the aging prison population undermines basic fairness, justice, and compassion.
The boom in the aging prison population is largely the result of tough-on-crime sentencing laws and release policies. Legislators across the political spectrum are rethinking such policies because they have proved ineffective at addressing crime and have a deleterious impact on the wellbeing and safety of poor people and people of color.
Public safety does not require that we keep aging people in prison when they pose no risk to society. People in prison aged 50 and older are far less likely to return to prison for new crimes than their younger counterparts. For example, only 6.4% of people incarcerated in New York State released age 50 and older returned to prison for new convictions; this number was 4% for people released at the age of 65 and older. Nationally, arrest rates are just over 2% for people aged 50+ and are almost 0% for people aged 65+.
There are several measures New York State should implement to reform parole policy and release aging people from prison. These measures are consistent with public safety and will result in significant cost savings for New York State. In addition, there are several measures New York State must implement if it is to provide humane care for its aging prison population. Lastly, reentry services specifically tailored to elders released from prison will help ensure the protection of their human rights and dignity, as well as enhancing public safety and preventing any risk of recidivism.
We are pleased to report that the symposium resulted in the creation of a model pilot project for discharge planning and reentry — the report on this pilot is attached to this series of papers as an appendix. We hope that the knowledge collected in the symposium, the pilot on reentry, and our continued commitment to improving New York State’s justice system serve as resources for you in your efforts to create a safer and healthier New York for all its residents. The groups and individuals who participated in the symposium and the Aging Reentry Task Force remain ready to provide expertise and resources to help our policy makers in these efforts.
Fitting follow-up to cursory Dem debate comments about criminal justice
As the numerous Prez debates all start to blend into one another, I am no longer making a habit of blogging about questions I would like to see asked or about the occasional tepid comment about criminal justice reform from one candidate or another. Nevertheless the Democratic debate over the weekend had one of the most extended (and yet still cursory) discussions of criminal justice issues, and these two recent article provide an effective review and commentary of what was said and of what still needs to be discussed a lot more:
From The New Republic here, "The Democrats Have Learned to Say, "Black Lives Matter." Now What?: Why Democrats can't get complacent about police brutality."
From Vox here, "Next time, Democrats should debate these Black Lives Matter and criminal justice questions"
I especially liked these proposed debate questions from the Vox article:
Experts say undoing mass incarceration would likely require imprisoning fewer violent offenders and even releasing some of them. Is that something you'd be willing to consider?
Has the Obama administration done enough to prevent aggressive prosecutions by US attorneys? What would you do differently?
More than 86 percent of prisoners are in state facilities. What can the federal government do to encourage decarceration in the states?
Should drug courts mandate rehabilitation and treatment with the threat of incarceration?
November 17, 2015 in Elections and sentencing issues in political debates, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)
Sunday, November 15, 2015
"Who's Really Sentenced to Life Without Parole?: Searching for 'Ugly Disproportionalities' in the American Criminal Justice System"
The title of this post is the title of this interesting and important new paper by Craig Lerner digging deeply into the realities of LWOP sentencing in eight states. Here is the abstract:
Critics argue that the American criminal justice system is rife with “ugly disproportionalities” and “brutal penalties on the undeserving.” One particularly brutal punishment is the sentence of life without the possibility of parole (LWOP). The punishment, conceived decades ago as a substitute for the death penalty, scarcely exists in the rest of the world. Today, while capital punishment wanes in the United States, steadily increasing numbers of defendants are sentenced to LWOP. Furthermore, according to a recent ACLU Report, over 3,000 of the 50,000 inmates serving LWOP were convicted of nonviolent offenses. There is no uglier disproportionality than a defendant, guilty of a minor crime, banished to prison for the remainder of his life.
This Article questions this narrative and therewith the contemporary wisdom as to the brutality of American criminal justice, at least in its imposition of LWOP sentences. The author conducted a detailed study of every inmate sentenced to LWOP in eight states. In a few states, it is impossible to find a single inmate sentenced to LWOP for any crime other than murder or the most serious violent crimes. Even in jurisdictions that impose LWOP for crimes labeled “nonviolent,” the inmates are few in number and often present aggravating factors, such as extensive criminal histories or previous violent crimes. Inevitably, criminals sentenced to LWOP will vary in culpability, and some will appear not to merit this punishment. Drawing attention to their plight can spur executive clemency in individual cases. But accusations that the American legal system is rife with “ugly disproportionalities,” at least insofar as this claim is applied to LWOP sentences in the states, appear to have little merit.
New York Times editorial makes case that California prison releases are working
The New York Times had this notable recent editorial, headlined "California’s Prison Experiment," highlighting why California is the most dynamic state to watch amidst the national debate over sentencing reform and mass incarceration. Building on two recent reports, the editorial makes the case that California is finding success with decarceration reforms. Here are excerpts:
Until recently, California locked up more people per capita than any other state. It has been under federal court order since 2009 to bring its severely overcrowded prison system below 137.5 percent of capacity, or about 114,000 inmates.
It met that modest goal in February, thanks in part to a 2014 ballot initiative that reclassified six lowlevel offenses as misdemeanors instead of felonies. The initiative, Proposition 47, was expected to lead to the release of thousands of inmates, and cut new admissions by about 3,300 per year. It also required that the cost savings — estimated to be more than $150 million this year — be reinvested into anticrime services like drug rehabilitation, antitruancy efforts and mental health treatment. Victims’ services receive funding, too.
Proposition 47 followed two other major reforms: A 2011 law diverted lowlevel offenders from state prisons into county jails, and a 2012 ballot initiative scaled back a “three strikes” law. The latter led to the release of more than 2,100 people who had been sentenced to life without parole, some for a third strike as minor as shoplifting.
After each reform, law enforcement officials predicted that crime would rise, but it continued to drop around the state. Recidivism rates of those released under the three-strikes reform are far below the state average.
Now, two new reports, by the American Civil Liberties Union and the Stanford Justice Advocacy Project, look at the effect of Proposition 47. The most easily measurable impact is on the state’s prison and county jail population, which has fallen by about 13,000, with more than 4,400 prison inmates released by the end of September. But the law remains controversial. Some in law enforcement argue that they can’t arrest people for small crimes anymore, and point to crime upticks in some counties.
In fact, crime rates vary widely throughout the state. In Los Angeles County, property crime is up 8 percent, while the rate for all crime remains at record lows in San Diego County. One sign that Proposition 47 is working is the recidivism rate. It is less than 5 percent for people released under the law; the state average is 42 percent....
It may be too soon to understand the full impact of Proposition 47, but the damage done by the indiscriminate and lengthy lockup of lowlevel offenders is all too clear. California’s voters, who have in the past given in to their most punitive impulses, have now opened the door to a more intelligent and humane justice system.
A few (of many) prior related posts on Prop 47 and its impact:
- "Proposition 47 Progress Report: Year One Implementation"
- Notable new ACLU report on impact of California's Prop 47 one year later
- Interesting takes on California developments since passage of Prop 47
- Spotlighting significant back-end impact of Prop 47 sentencing reform in California
Thursday, November 12, 2015
Notable new ACLU report on impact of California's Prop 47 one year later
In this prior post last week, I reported on this Stanford Justice Advocacy Project report providing one perspective on the impact and import of California voters' embrace of criminal justice reform last year through Proposition 47. I have just seen that the ALCU of California has this week released its own report on this important topic. This report, titled "Changing Gears: California’s Shift to Smart Justice," covers lots of ground about local implementation of Prop 47. Here are excerpts from its six main findings (which has its numbering a bit off):
For this survey, the ACLU obtained and reviewed public records from sheriffs, probation chiefs, district attorneys, and behavioral health departments from around the state. The findings below are offered as a starting point for policymakers and advocates working to better understand the choices local agencies are making in responding to Prop 47 and the voter mandate behind it – and begin to evaluate whether those choices are appropriate.
1. Thousands are waiting for their Prop 47 resentencing/ reclassification petitions to be reviewed. Under Prop 47, people who may be eligible to change the felony on their record to a misdemeanor have a limited time to ask the court to make the change. The November 2017 deadline to apply is now just two years away. As of June 2015, courts statewide had reported a total of about 160,000 applications for Prop 47 relief – both for resentencing and reclassification.29 Responding to public records requests by the ACLU, many counties were unable to provide accurate data on how many people may still be incarcerated or under supervision awaiting resentencing. Although most counties acted quickly to establish a process for resentencing eligible incarcerated people, it is less clear how many people eligible for Prop 47 resentencing are still serving felony sentences under community supervision. According to Californians for Safety and Justice, there may be up to one million Californians who have an old felony on their record that may be eligible for reclassification....
2. Jail populations fell after Prop 47, but they are rising again. Due to overcrowding, jail populations in California are largely determined by jail administrators’ decisions about how to manage jail capacity. They determine who will be booked into jail and who will be released, how and under what conditions. Following enactment of Prop 47, jail populations statewide dropped by almost 11% from October 2014 to March 2015. During the same period, the number of people who were released early due to jail overcrowding dropped by one-third. However, jail populations soon began to increase again as administrators adjusted detention policies and practices....
3. Some in law enforcement have prioritized low-level arrests while others de-prioritized them. The ACLU obtained several county sheriff departments’ arrest numbers for low-level drug and property offenses for each month in 2014 through mid-2015. (Sheriff’s departments represent a small sample of the hundreds of law enforcement agencies in the state.) Changes in arrests in the fi rst six months of 2014 compared to the fi rst six months of 2015 demonstrate that local agencies are applying their discretion to arrest for Prop 47 offenses very differently....
4. Some county jails are making room for people charged with low-level offenses. The facts belie the claim by some in law enforcement that people facing misdemeanor charges cannot be jailed. In 2015, people facing misdemeanor charges are taking up a growing number of jail beds....
4. A majority of counties already require supervision for some people convicted of a low-level offense. In response to ACLU inquiries, 38 county probation departments reported supervising some people for misdemeanor convictions. Other counties put misdemeanants on court probation (which does not involve active monitoring). Following Prop 47, some counties reported putting people who have been resentenced from a felony to a misdemeanor under the supervision of the probation department. Other counties have chosen not to provide formal supervision....
5. Agencies have been focused on individual agency roles, rather than collaborative planning. In records provided to the ACLU, communication among criminal justice agencies at the county level have focused on the individual roles of each agency rather than on how best to maintain the county’s overall public safety goals. Few counties appear to have made the space to discuss how various agencies and the county as a whole should adjust policies and practices to ensure that counties adhere both to the legal requirements and the voter intent behind Prop 47.
A few (of many) prior related posts on Prop 47 and its impact:
- "Proposition 47 Progress Report: Year One Implementation"
- Interesting takes on California developments since passage of Prop 47
- Spotlighting significant back-end impact of Prop 47 sentencing reform in California
"How Parental Incarceration Affects a Child’s Education"
The title of this post is the headline of this notable new Atlantic article, which summarizes some of the findings from this research report titled "Parents Behind Bars: What Happens to Their Children?" authored by David Murphey and P. Mae Cooper. Here are excerpts from the Atlantic article:
Research has long found that children who have (or have had) a parent behind bars tend to suffer from problems including poor health, behavior challenges, and grade retention, but it’s been difficult to suss out the degree to which those issues are attributable more generally to other realities common in communities with high incarceration rates. “It can be challenging to disentangle the effects of parental incarceration from … other risk factors, such as extreme poverty,” Murphey and Cooper write. “Complicating matters further, parental incarceration can also exacerbate these associated risk factors, through loss of income, for example.”...
The researchers also found that a child who’s had a parent in prison is more likely than one who hasn’t to experience additional “adverse childhood experiences,” or ACEs—long-term, “toxic” circumstances such as witnessing domestic or community violence, suffering from extreme poverty, or living with someone who’s mentally ill. Research has shown that ACEs, especially when they’re cumulative, often cause childhood trauma, which can ultimately result in poor immunity and mental-health problems in adulthood and even early mortality. As James Perrin, the president of the American Academy of Pediatrics, told The Atlantic’s Olga Khazan last year, “If you have a whole bunch of bad experiences growing up, you set up your brain in such a way that it’s your expectation that that’s what life is about.”
Parental incarceration often acts as one such ACE because it causes a confusing, troubling loss of an attachment figure and involves ongoing contact with law enforcement, the corrections system, and child-welfare officials. But what Murphey and Cooper find is that having a parent in prison is likely to coincide with even more traumatic experiences: Children who’ve undergone parental incarceration suffer from 2.7 ACEs on average, according to their analysis of of the National Survey of Children’s Health, which lists 8 ACEs total. Children who haven’t experienced parental incarceration suffered from 0.7 ACEs on average.
Ultimately, the researchers conclude that “the harm associated with parental incarceration can compound the already difficult circumstances of vulnerable children,” a reality that’s particularly evident in their schooling. Yet, as the University of Minnesota paper shows, education policy has done little to address these kids’ particular needs. And in this age of mass incarceration, perhaps it should. In his recent cover story for The Atlantic about the topic, Ta-Nehisi Coates described mass incarceration as a vicious cycle that victimizes entire families, holding them “in a kind of orbit, on the outskirts, by the relentless gravity of the carceral state.” “Through it all,” Coates wrote, “children suffer.”
Wednesday, November 11, 2015
How many vets, after serving to secure liberty, are now serving LWOP sentences?
The question in the title of this post, in addition to raising an important empirical question on a day devoted to honoring our veterans, seeks to highlight my view that even more disconcerting than the number of veterans who many be on death row (as dicusses in this new DPIC report) is the surely much larger number of vets who are serving a sentence ensuring they will never experience true freedom again after they served to protect that very freedom.
The DPIC report indicates that around 300 veterans may be on death row, which would make vets a little less than 10% of the condemned population. Using that rough percentage and knowing that at least 100,000 persons (and likely many more) are serving LWOP sentences in the United States, it think it would be reasonable to guess that as many as 10,000 veterans might be serving the ultimate American liberty-depriving sentence after having devoted part of their life to protecting American liberties.
"What Mass Incarceration Looks Like for Juveniles"
The title of this post is the headline of this New York Times op-ed by Vincent Schiraldi. Here are excerpts:
After two decades of researching mass incarceration — and advocating for its demise — I decided in 2005 to take more direct action and accepted a job running corrections departments, first in Washington, D.C., then in New York City. It was a rude awakening.
The juvenile corrections department in Washington had about 1,000 clients, about 200 of whom were confined to a detention facility, and a staff of 800. For the previous 19 years, the department had been under a court order for unconstitutional conditions; I was the 20th leader in that time. In the year prior, two scathing reports, one by the district’s inspector general and another from plaintiffs’ experts, detailed appalling conditions: Beatings of children in custody were commonplace, inmates stuffed clothing around the toilets to keep out rats and cockroaches, young people were locked up for so long that they often defecated or urinated in their cells. Youths who came in clean tested positive for marijuana after 30 days of confinement, suggesting that it was easier to score drugs in my facility than on the streets of the District of Columbia.
My staff and I quickly uncovered more abuses. Staff members were sexually harassing the kids and one another. One of my corrections officers married a youth shortly after the boy was released from custody. A teacher who had been confined in the facility when she was a teenager confided to us that she had been sexually assaulted by a staff member who was still in our employ years later. The female staff members widely complained that, if they didn’t perform sexually for their supervisors, they were threatened with finding themselves alone and unaided with the facility’s inmates in dangerous situations.
These abuses are not meted out equally in the United States, with African-Americans and Latinos incarcerated at far higher rates than whites. In my five years running the Washington system, I never saw one white youth (other than volunteers) in my correctional facility....
In New York, where I ran the probation department, I didn’t witness the same hairraising institutional abuse, mostly because we didn’t run any facilities. But probation officers reported that they routinely reincarcerated people on their caseloads for technical, noncriminal violations largely because they were afraid that if they didn’t, and their client was rearrested, they’d be held to account. As a result, our clients were frivolously deposited into New York’s jail and juvenile facilities, both of which were sued by the Justice Department during my tenure for conditions chillingly similar to what I had witnessed in Washington. When we put a stop to the over-incarceration, crime did not spike and there was a remarkably low felony rearrest rate of 4 percent a year for people who completed probation.
Two things surprised me about my experiences on the inside. First, horrific institutional conditions are common, not exceptional.... Since 1970, systemic violence, abuse and excessive use of isolation and restraints have been documented in juvenile institutions in 39 states, the District of Columbia and Puerto Rico, according to the Annie E. Casey Foundation, a philanthropic group devoted to children’s poverty issues....
The second major surprise was how much I liked many of my staff members. I charged into my job with an air of moral superiority. Surely, I thought, such conditions could be created only by ethically bankrupt characters who would wear their depravity on their sleeves. But it was far more complicated. Just about everyone in my Washington facility knew who was beating the kids, having sex with them and selling them drugs. After all, our facility housed only about 200 young people, roughly the size of a small middle school.
Yet many of the church-going people on my staff were ostensibly very friendly people who, despite their silence, believed they were advancing public safety. They attended our football games and plays and cheered the youths on, sitting in the stands with their parents. They were the good guys, rendered complicit by years in a corrupt system....
From what I witnessed during my decade on the inside, the end of mass incarceration can’t come soon enough; conditions poison staff members and kids alike and harm, rather than improve, public safety. Incarceration should be the backstop, not the backbone, of our crime-control efforts.
Saturday, November 07, 2015
Thanks to retroactive drug guidelines, federal prison population under 200,000 for first time in nearly a decade
I was pleased to discover from this webpage providing a weekly updating of the official federal prisoner headcount that, for the first time in nearly a decade, the federal prison population is now officially under 200,000. I believe that the official count last week was around 205,000, and thus it would seem that this milestone was achieved officially as a result of the implementation of the first set of drug-2 retroactivity early prisoner releases.
I have heard talk in various settings of an interest in having the federal prison population down eventually to 150,000 (which, I believe, would still have the facitlities officially a bot above their standard capacity). I think the passage and effective implementation of the bipartisan federal sentencing reform bills now in Congress would likely go a long way to getting to that goal in a responsible way.
Friday, November 06, 2015
"How Federal Judges Contribute to Mass Incarceration and What They Can Do About It"
The title of this post is the title of this notable new article by US District Judge Lynn Adelman and his clerk Jon Deitrich now available via SSRN. Here is the abstract:
Talk of reforming federal sentencing law by eliminating some mandatory minimum sentences is much in the air. The fact is, however, that many federal offenders are unnecessarily imprisoned in cases where there is no mandatory minimum.
This article attempts to expand the conversation about excessive imprisonment by discussing first how the federal sentencing guidelines place far too much emphasis on prison and far too little on sentences served in the community. Next, we discuss federal judges' excessive attachment to the guidelines despite their deep flaws and even after the Supreme Court has made clear that judges are free to reject them. Finally, we propose an approach to federal sentencing that is much less deferential to the guidelines and places much more emphasis on 18 U.S. § 3553(a), the parsimony statute, which requires judges to impose the least punitive sentence necessary to achieve the goals of sentencing.
Thursday, November 05, 2015
"Proposition 47 Progress Report: Year One Implementation"
The title of this post is the title of this recently-released report from the Stanford Justice Advocacy Project, which "was involved in the drafting of Proposition 47 and currently assists its implementation, including litigation on behalf of individual prisoners seeking reduced sentences under the new law." Perhaps unsurprisingly, this report tells a much more positive story about the impact of Proposition 47 than has been reported by law enforcement officials and various others. Here are the short report's "Key Findings" (without the many footnotes):
Since the enactment of Proposition 47 on November 14, 2014, the number of people incarcerated in California’s prisons and jails has decreased by approximately 13,000 inmates, helping alleviate crowding conditions in those institutions. Proposition 47 has also reduced the number of jail inmates released from custody early due to overcrowding and should generate over $150 million in state savings this fiscal year. County governments stand to save even more money: over $200 million annually, in aggregate.
According to the Legislative Analyst’s Office, prior to Proposition 47 approximately 40,000 people per year received felony sentences for the drug and property crimes targeted by the initiative. Those offenses are now punished as misdemeanors, significantly reducing sentence lengths and costs for incarceration, litigation and law enforcement.
According to the Department of Corrections, 4,454 state prisoners have been released under Proposition 47 as of September 30, 2015. In addition, the state will incarcerate an estimated 3,300 fewer prisoners every year because these offenders will receive misdemeanor jail sentences under Proposition 47 rather than new prison terms. In February, the prison population dropped below the capacity level ordered by the U.S. Supreme Court in Plata v. Brown, one year ahead of schedule.
According to the Board of State Community Corrections, the total statewide jail population has dropped by almost 9,000 inmates since the enactment of Proposition 47.9 Early releases from county jails due to overcrowding are down approximately 35 percent statewide.
Financial savings to the state from reduced prison costs under Proposition 47 is estimated at over $156 million this fiscal year. Long term annual savings are estimated at $93.4 million. These savings will be directed to the Safe Neighborhoods and Schools Fund to support mental health and drug treatment, K-12 public schools, and services for crime victims. In May, the Governor cut over $70 million dollars from the state prison budget because of population reductions from Proposition 47.
Fewer than five percent of state prisoners released early under Proposition 47 have been convicted of a new crime and returned to prison. Although law enforcement officials in some jurisdictions have recently complained about increasing crime rates, there is no evidence that state prisoners released early under Proposition 47 are committing those crimes. Statewide data on crime rates is not currently available, making it impossible to measure any impact on crimes rates by Proposition 47.
Tuesday, November 03, 2015
Sign of the sentencing reform times: Louisiana Gov candidates spar over prison reform plans
This local article, headlined "Gubernatorial candidates spar about Louisiana’s high incarceration rate," provides a report on the notable and telling political debate over prison policies now going on in the Bayou. Here are details:
Republican David Vitter’s first television ad against his Nov. 21 runoff opponent Democrat John Bel Edwards takes aim at Edwards’ position on criminal justice — specifically, Edwards’ talking points about Louisiana’s high incarceration rate. The ad claims Edwards, who is being backed by the Louisiana Sheriffs Association, wants to release “5,500 violent thugs” from prison — a position that Edwards says has been misconstrued and taken out of context.
In reality, both candidates support some form of prison reform, including the expansion of early release programs for nonviolent offenders. Edwards and Vitter won the top two spots in Louisiana’s Oct. 24 primary, sending them to a head-to-head runoff to succeed Gov. Bobby Jindal, who can’t seek re-election due to term limits and has set off on a presidential campaign.
Lafayette Parish Sheriff Michael Neustrom, one of the sheriffs backing Edwards in the governor’s race, said he thinks progressive programs that aim to reduce the prison population responsibly are needed in Louisiana. “We have to do things differently,” he said. He said Louisiana prisons are overcrowded with minor, nonviolent offenders and that reform would be both economical and smart for the state. He noted that Texas could be a model for the types of reform that should be implemented here.
Louisiana has earned the dubious distinction of having — not just the nation’s — the world’s highest incarceration rate. There are nearly twice as many people jailed in Louisiana per capita as the national average. As of 2014, there were nearly 40,000 people behind bars in the state. The prison system costs Louisiana nearly $350 million a year. It’s an issue that the Louisiana Legislature has grappled with for several years, slowly winnowing away some of the mandatory minimum sentencing requirements implemented decades ago.
“We have to look at proven strategies that have been implemented elsewhere,” Edwards said in an interview Friday. He said he thinks Louisiana should take a serious look at pretrial diversion programs, including sobriety and drug courts, as well as special programs for the mentally ill and veterans. Edwards is a military veteran. “That’s the type of approach we should take,” he said, adding that the reduced costs on incarceration could be reinvested to reduce crime.
He said Vitter’s characterization of his views is misleading. The 5,500 figure, which Edwards has noted in several speeches — not just the Southern University speech the Vitter ad cites — is the number of prisoners that puts Louisiana above the state with the No. 2 incarceration rate. He’s used it as a hypothetical number that Louisiana would need to reduce by just to get out of the No. 1 spot. “I have never said I have a plan to release anybody,” he said, noting that the state has to set goals that it would like to achieve.
Asked about his views on sentencing reform and Louisiana’s high incarceration rate, Vitter referred reporters to his policy plan, “Together, Louisiana Strong.” The plan includes a chapter on “fighting violent crime and reforming criminal justice,” but it doesn’t specifically outline efforts to reduce Louisiana’s prison population. It mentions that Vitter wants to implement “cost-effective work release and monitoring programs,” but doesn’t provide details on those ideas. “I support common sense,” Vitter said Friday. “It is fundamentally different from John Bel Edwards.”
Vitter said he had not read recent legislative proposals that have aimed to reduce penalties for nonviolent offenses as a way to rein in the prison population. He repeatedly characterized Edwards’ comments as a “proposal” that his opponent has made and said his main objection is to the figure named. “We don’t need to pick an arbitrary number,” he said. “That’s a completely irresponsible proposal.”
Monday, November 02, 2015
House Judiciary Chair Goodlate makes case for sentencing reform by attacking sentencing reform
The somewhat curious title of this post is prompted by this somewhat curious new National Review commentary authored by Representative Bob Goodlatte, chair of the House Judiciary Committee. The piece is headlined "Reduce Prison Sentences, but Not for Violent Offenders: The release of dangerous criminals shows why Congress needs to act on criminal-justice reform." Here are excerpts from the piece (with a few patently false phrases emphasized):
Starting this month, thousands of federal inmates are set to be released early from federal prison, including serious violent felons and criminal aliens. This action is not the result of legislation passed by the people’s elected representatives in Congress. Rather, it is a result of a decision made by unelected officials appointed to the United States Sentencing Commission.
In early 2014, the Sentencing Commission adopted an amendment to reduce the sentences for certain drug-trafficking and distribution offenses, including trafficking offenses that involve drug quantities substantial enough to trigger mandatory minimum sentences. The Sentencing Commission made these reductions retroactive, applying them to tens of thousands of inmates in the Bureau of Prisons’ custody who are serving sentences for drug offenses. Since then, thousands of federal inmates have filed motions with their courts of jurisdiction for sentence reductions and have been granted approval for early release.
The problem with the Sentencing Commission’s changes to federal drug-sentencing requirements is that they are applied without regard to the inmate’s criminal history and public safety. Consequently, criminals set to be released into our communities as a result of the Sentencing Commission’s amendment include inmates with violent criminal histories, who have committed crimes involving assault, firearms, sodomy, and even murder.
There is growing consensus in Congress that certain federal drug sentences, such as mandatory life imprisonment for a third drug-trafficking offense, are unnecessarily harsh and contribute to prison overcrowding and a ballooning federal prison budget. However, the Sentencing Commission is going about sentencing reform the wrong way. Its new guidelines blindly apply sentencing reductions to all federal inmates without considering the impact an early release would have on the safety of our communities.
The Sentencing Commission’s unilateral changes show why it is imperative that Congress act on sentencing reform and other criminal-justice issues. If Congress does not act, the matter is left in the hands of an entity that has demonstrated it cannot be trusted to act responsibly. Fortunately, leaders in the House of Representatives and the Senate agree that our nation’s criminal-justice system needs improvement and are working on bipartisan legislation to do just that....
Recently, I joined several leaders of the committee in introducing our first piece of bipartisan legislation to reform federal sentencing requirements and simultaneously prevent serious violent criminals from getting out early.
That bill — the Sentencing Reform Act — makes the criminal-justice system more fair, efficient, and fiscally responsible. It reduces certain mandatory minimums for drug offenses, including cutting the third-strike mandatory life sentence to 25 years and the second-strike mandatory sentence from 20 to 15 years. The bill also broadens the mechanism for non-violent drug offenders to be sentenced below the mandatory minimum sentence and provides judges in those cases with greater discretion in determining appropriate sentences. These changes will help save taxpayer dollars and take an important step toward reducing crowding in our federal prisons and the amount of federal taxpayer dollars spent on incarceration each year.
Our criminal-justice system is in need of reform, but we must ensure that changes to the system do not compromise the safety of the American people. Most important, the bill contains major limitations on the retroactive application of these reforms, to ensure that serious violent criminals serve the full time for their crimes in federal prison and do not get out of prison early. This is in stark contrast with what the Sentencing Commission has done to federal sentencing requirements....
While the fruit of the Sentencing Commission’s reckless changes is laid bare beginning this month, the House Judiciary Committee will move forward with the Sentencing Reform Act so that sentencing reform is done responsibly. Our criminal-justice system is in need of reform, but we must ensure that changes to the system do not compromise the safety of the American people.
The phrases I have highlighted are patently false because the instructions that the US Sentencing Commission giver to judges when deciding whether to reduce a defendant's sentence based on lowered guidelines includes an express requirement that the "court shall consider the nature and seriousness of the danger to any person or the community that may be posed by a reduction in the defendant's term of imprisonment in determining: (I) whether such a reduction is warranted; and (II) the extent of such reduction." In other words, the USSC does not call for retroactive application of reduced guidelines without regard for public safety. Rather, the USSC expressly calls for judges to consider, on a case by case basis, whether reducing a sentence for an inmate poses a danger to any person or the community.
That all said, while this op-ed seems to me to be taking unfair pot shots at the US Sentencing Commission, I think it is wise to suggest that Congress can and should feel urgency to enact its own federal sentencing reform if it is concerned in any way with how the US Sentencing Commission has been trying to reduce the federal prison population. Both the Sentencing Commission and the US Department of Justice have been telling Congress for a number of years that federal prisons are badly overcrowded and are using up too much of the federal crime control budget. The Commission's decision to reduce drug sentences across the board and to make these changes retroactive reflect, in part, a wise recognition by the Commission that it needed to do something significant ASAP to reduce federal prison overcrowding. Notably, though many members of Congress have now been talking seriously about federal sentencing reforms for nearly three years, no actually refoms have become law.
November 2, 2015 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)
Sunday, November 01, 2015
"Bar None? Prisoners' Rights in the Modern Age"
The title of this post is the title of this notable paper by Daniel Medwed available via SSRN. Here is the abstract:
The American public is perhaps more sensitized to the flaws in our criminal justice system than at any time in our history. News accounts of wrongful convictions, racial profiling, violent police-citizen encounters, and botched executions have called into question the policies of a nation that imprisons more people than any other developed nation — upwards of 1.5 million people housed in state or federal prisons according to the Bureau of Justice Statistics. To some extent, this period of questioning and reflection has produced gains; we have witnessed a modest shift away from mandatory minimum sentencing and toward the decriminalization of some narcotics. Parole boards have shown a rising awareness that inmates’ claims of innocence should not be held against them in their release decisions. Even more, some states — most notably, Michigan — have formulated innovative re-entry programs to assist prisoners in making the perilous transition from their cell blocks to residential and commercial blocks in neighborhoods throughout the country. These events have prompted some observers to envision an end to mass incarceration in the United States.
Yet this vision is a mirage. Despite all of the talk about criminal justice reform and “decarceration,” we still live in a country where large swaths of people, especially young men of color, languish behind bars or under the restrictions of probation, parole, or some other form of community supervision. This is likely to remain the case absent dramatic changes to policing practices, wealth inequalities, and the lobbying tactics of corrections officials and affiliated industries. The danger with the decarceration rhetoric is that it deflects attention from those who continue to suffer under horrid conditions of confinement. Indeed, this Symposium explores the contemporary prison experience against this complicated backdrop and asks a fundamental question: what are the gravest problems that inmates face during an era in which many people might naively think that the situation has improved?
Thursday, October 29, 2015
"Saving the United States from Lurching to Another Sentencing Crisis: Taking Proportionaltiy Seriously and Implementing Fair Fixed Penalties"
The title of this post is the title of this notable new paper authored by Mirko Bagaric and Sandeep Gopalan now available via SSRN. Here is the abstract:
Unabated tough-on-crime policies in the United States for the past two decades in response to a crime problem have now produced another crisis: too many prisoners. Prison gates are currently literally being opened to release prisoners in a bid to ameliorate the unsustainable cost of detaining more than two million Americans. More than 40,000 drug offenders may be released early from prison pursuant to retrospective sentence reductions which have been implemented for no greater reason than the prison walls are crumbling from overuse. Sentencing is the sharp end of the criminal law. It is the domain where the State acts in its most coercive manner against citizens. The cardinal interests at stake are too important for it to continue to be dictated by reflexive legislative hunches. Yet, it is the area of law where there is the biggest gap between what is implemented and what theory informs us is achievable.
This Article attempts to correct that failing and in the process makes concrete proposals to prevent the United States making another macro-political and social error by over-reacting to the present crisis. Mandatory harsh penalties have caused the incarceration crisis. The solution to the problem involves maintaining the overarching architecture of this approach but fundamentally alerting its content. The core problem with the current approach to sentencing in United States is not its prescriptive nature. It is that the sanctions are generally too severe; devoid of any attempt to match the gravity of the crime to the harshness of the penalty. Proportionality is the missing component in United States sentencing. Drug traffickers, for example, deserve punishment, but any system that treats them as severely as murderers is afflicted with a fundamental doctrinal deformity.
This Article proposes a model to remedy such flaws. It gives meaning and content to proportionality. As a result, it is suggested that most non-violent and non-sexual offenses should be dealt with less harshly. This is especially because the cost and burden of imprisonment to the community needs to be factored into the sentencing calculus. Moreover, prison should be principally reserved for offenders who are a threat to public safety; not those whom we simply dislike. This will result in a rapid emptying of many prisons, but it will be principled -- not reflexive. To illustrate the manner in which our recommendations should operate we develop a sentencing grid which, if implemented, would make United States sentencing fair, efficient and profoundly less expensive to the taxpayer.
US Sentencing Commission provides estimates on likely impact of sentencing reforms in SRCA 2015
I have been remiss for failing to highlight in this space the notable analysis recently done by the US Sentencing Commission in conjunction with the Senate's work on the Sentencing Reform and Corrections Act of 2015 (basics of SRCA 2015, S. 2123, here). That analysis appears in full form in this extended statement by USSC Chair Patti Saris to the Senate Judiciary Committee, and it appears in summary form in this USSC news release praising the Committee's passage of SRCA 2015 through to the full Senate. Here are the key data appearing in short form in the press release:
According to the Commission’s analysis, key provisions of S. 2123 would:
• Provide retroactive application of the Fair Sentencing Act (FSA), which could allow 5,826 offenders currently in prison to receive an approximate 20 percent reduction in sentence.
• Permit certain offenders who are currently subject to the 10-year mandatory minimum penalty to be subject to the 5-year mandatory minimum instead, which would reduce the sentence of 550 offenders annually by approximately 19.3 percent.
• Broaden the safety valve to provide greater relief to more low-level, non-violent offenders, which would reduce the sentence of 3,314 offenders annually by nearly 20 percent and save 1,593 federal prison beds within 5 years of enactment.
• Reduce mandatory minimum penalties for recidivist drug offenders with prior drug felony convictions from 20 years to 15 years, and reducing the mandatory life imprisonment penalty for certain offenders to 25 years while both narrowing and expanding the types of prior offenses that could trigger a mandatory minimum.
• Reduce the mandatory minimum sentencing enhancement for using a firearm in the commission of a violent crime or drug offense from 25 years to 15 years, and narrow the circumstances in which multiple sentencing enhancements apply, which would reduce the sentence of 62 offenders annually by 30.4 percent.
• Reduces the mandatory minimum penalty under the Armed Career Criminal Act from 15 to 10 years, which would reduce the sentence of 277 offenders each year by approximately 21.6 percent. The bill would apply this provision retroactively, which, if granted, could result in a sentence reduction for 2,317 offender currently in federal prison.
Recent prior related posts on SRCA 2015:
- Bipartisan federal sentencing reform bill due to emerge from Senate today
- Basic elements of Sentencing Reform and Corrections Act of 2015
- Leading distinct GOP Senators make the case for federal sentencing reform via SRCA 2015
- Senate Judiciary Committee moving forward next week on Sentencing Reform and Corrections Act of 2015
- Submitted testimony from witnesses at SRCA 2015 hearing (and member statements) now available
- SRCA 2015 passes through Senate Judiciary Committee by vote of 15-5
- Noting the potential sentencing reform benefit from the latest budget deal
October 29, 2015 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Offense Characteristics, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)
NY Times debates "Will Crime Rise If More People Are Kept Out of Prison?"
The Room for Debate section of the New York Times has this new set of pieces exploring the potential crime impact of reduced use of incarceration. Here is the section's set up (with links from the source):
Even many of the nation’s police chiefs have called for reducing the number of people, particularly minorities, sent to prison. But the news that a man suspected of murdering a New York City police officer had been given break after break, and was free because he had been allowed to enter a diversion program rather than be jailed on drug charges, have led even supporters of such programs to raise questions about them.
With some already saying that crime may be rising, are we moving too fast to embrace limits on incarceration, such as diversion programs and drug courts? Could such measures actually increase the risk of crime?
Here are the contributions, with links via the commentary titles:
"Safety and Justice Complement Each Other" by Glenn E. Martin,
"Prison Alternatives Have Been Tried and Found Wanting" by Heather MacDonald
"Don’t Let a Hero’s Death End a Vital Program" by P. David Soares
"Incarceration Helped Bring Crime Down" by Michael Rushford
"Mass Incarceration Is a Horrible Failure" by Allegra M. McLeod
Monday, October 26, 2015
Interesting takes on California developments since passage of Prop 47
I have long asserted that California has long been among the most interesting states to watch closely when it comes to crime and punishments. The latest round of developments involve the state's passage of an initiative, Proposition 47, reducing the severity of many offenses and subsequent reactions thereto. This new Los Angeles Times op-ed, authored by Robert Greene and headlined "California's Prop. 47 revolution: Were the voters duped?," provides a notable take on all this and a preview of more to commentary come. Here are exerpts:
Police and prosecutors have lately attempted to link increases in crime to last year's Proposition 47. Based on their overwrought statements, it would be understandable for Californians to start wondering whether they had been duped into completely decriminalizing drug possession and petty theft....
As is the case with all large bureaucracies, it is difficult for courts and for city and county agencies — police departments, sheriff's departments, district attorneys, probation officers, county supervisors — to understand and constructively respond to changed circumstances. And Proposition 47 no doubt brought change, by converting six felonies to misdemeanors and allowing many people serving sentences for those crimes, and those who served their time long ago, to be resentenced and have their rap sheets adjusted....
Crime in Los Angeles and some other communities throughout the state has increased this year after many years of decline. But is that because of Proposition 47? Other American cities, where Proposition 47 has no effect, have seen similar increases.
If the ballot measure is connected to rising crime, that's probably because public officials have been too slow to recognize the options that the measure gives them. And it's likely that their decisions — a deputy's decision not to arrest, for example, or the sheriff's not to make room in the jail for a recidivist offender pending trial, or county supervisors' not to use any of the hundreds of millions of dollars currently available for non-jail alternatives — are based on suppositions about how the other links in the public safety chain will react....
The gist of the reaction against Proposition 47 is that we as a society simply have no choice but to make possession of drugs and petty theft into felonies punishable by more than a year in prison if we want to control more serious crime. Similar warnings were issued about the consequences of modifying the three-strikes law, yet recidivism among strikers released from prison after voters adopted Proposition 36 is astonishingly low. And similar arguments were made against redirecting some felons from state prison and state parole to county jail and county probation, yet crime rates after realignment continued to fall.
In the coming week, The Times' Opinion section — the Opinion L.A. blog, the editorial board and the Op-Ed page — will explore the repercussions of Proposition 47, and compare this episode in criminal justice history with similar recent changes that also produced periods of adjustment. The goal is not to defend the voters' decision but rather to seek some honest talk, some accountability and some effective action on the part of public officials who are responsible for providing public safety, justice and wise and effective spending.
These follow-up opinion pieces provide, as their headlines suggest, pro and con views of the pros and cons of Prop 47:
Saturday, October 24, 2015
Justice Anthony Kennedy condemns extreme US punishments as "ongoing injustice of great proportions"
This new piece in the Harvard Gazette, headlined "Kennedy assails prison shortcomings," highlights that an especially notable Supreme Court justice is saying some especially notable things about the US criminal justice system. Here is how the piece gets started:
Without mincing words, U.S. Supreme Court Justice Anthony Kennedy disparaged the American criminal justice system on Thursday for the three prison scourges of long sentences, solitary confinement, and overcrowding.
“It’s an ongoing injustice of great proportions,” said Kennedy during a conversation with Harvard Law School (HLS) Dean Martha Minow at Wasserstein Hall, in a room packed mostly with students.
Kennedy criticized long prison sentences for the high costs associated with them. (In California, where Kennedy comes from, the cost per prisoner is $35,000 per year, he said.) He also said long sentences have appalling effects on people’s lives.
Solitary confinement, he said, “drives men mad.” He called mandatory minimum sentences “terrible” and in need of reform. Sentences in the United States, he said, are eight times longer than sentences in some European countries for equivalent crimes. With more than 1.5 million prisoners in federal, state, and local jails, the United States has the world’s largest prison population.
The worst of the matter, he said, is that nobody pays attention to this wrong, not even lawyers. “It’s everybody job to look into it,” he said.
Kennedy, LL.B. ’61, whose views on the court reflect a preoccupation with liberty and dignity, has often been described as the high court’s swing vote on major issues. But during his talk with Minow, he said he hated to be depicted that way. “Cases swing. I don’t,” he quipped, as the room erupted in laughter.
Thursday, October 22, 2015
Looking closer at (unexpected?) states investing more in incarceration than higher education
I often worry that some offenders when sent to prison will primarily learn about how to be a better criminal. For that reason and others, I am troubled when government authorities invest more taxpayer resources sending young adults to correctional institutions than to educational institutions. That concern is spotlighted by this recent Deseret News article headlined "11 states that spend more on prisons than on colleges." Among other virtues, this article highlights that the list of states investing more in incarceration than higher education is not composed of the "usual" states that get the most criticisms for criminal justice systems (although this may because a lot of those usual states seek to cut so many economic corners in the operation of their prison systems). Here is how the article gets started:
A new report by the American Academy of Arts and Sciences [available here] makes the case that state investment in higher education has fallen dramatically over the past decades. Many states are now contributing only a small fraction of the cost of "state" colleges and universities.
One finding in particular stood out: There are now 11 states that spend more on prisons than on higher education. It's an arresting factoid, so to speak. But it could also be deceptive. To dig into those numbers, we looked at the 11 states on the list, plus four large states that weren't on the list — Louisiana, Texas, Florida and California — as comparisons.
In each, we compared the state to the national average on five measures: incarceration rates, per prisoner spending, higher-education spending per capita in 2013 and the change in higher-education spending per student from 2008-14. In every case, the numbers are expressed as the percent higher or lower than the national average.
We found that beneath the headline, those 15 states actually were quite varied. Some clearly underinvest in higher education, while others have high incarceration rates. Some states balance high incarceration rates by spending very little per prisoner, with troubling policy implications in its own right. Other states have low incarceration rates but still make the blacklist because they spend more per prisoner while underspending on higher ed.
Some of the states that underspend will surprise you. Reputations do not always match reality.
Wednesday, October 21, 2015
"Separation by Bars and Miles: Visitation in state prisons"
Less than a third of people in state prison receive a visit from a loved one in a typical month [according to] a new report by the Prison Policy Initiative, Separation by Bars and Miles: Visitation in state prisons. The report finds that distance from home is a strong predictor for whether an incarcerated person receives a visit.
“For far too long, the national data on prison visits has been limited to incarcerated parents. We use extensive yet under-used Bureau of Justice Statistics data to shed light on the prison experience for all incarcerated people, finding that prisons are lonely places,” said co-author Bernadette Rabuy, who recently used the same BJS dataset for Prisons of Poverty: Uncovering the pre-incarceration incomes of the imprisoned.
Separation by Bars and Miles finds that most people in state prison are locked up over 100 miles from their families and that, unsurprisingly, these great distances — as well as the time and expense required to overcome them — actively discourage family visits. Given the obvious reluctance of state prison systems to move their facilities, the report offers six correctional policy recommendations that states can implement to protect and enhance family ties. Rabuy explained, “At this moment, as policymakers are starting to understand that millions of families are victims of mass incarceration, I hope this report gives policymakers more reasons to change the course of correctional history.”
Notable new group advocating for sentencing reforms: Law Enforcement Leaders to Reduce Crime and Incarceration
I was intriguing and pleased to receive this press release this morning, titled "130 Top Police Chiefs and Prosecutors Urge End to Mass Incarceration." The release explains the creation and commitments of a notable new public policy group. Here are excerpts from the press release (with links and emphasis from original):
Today 130 police chiefs, sheriffs, prosecutors, and attorneys general from all 50 states join together as a surprising new voice calling for the end to unnecessary incarceration in the U.S. while maintaining public safety.
The new group, Law Enforcement Leaders to Reduce Crime and Incarceration, marks an unprecedented partnership among the nation’s top law enforcement leaders to push reforms to reduce incarceration and strengthen public safety. At a press conference today in Washington, D.C., police chiefs from six of the largest U.S. cities, including New York, Los Angeles, Chicago, Washington, D.C., Houston, and New Orleans, will announce their policy agenda, featured in a Statement of Principles.
President Barack Obama will host members of the group at the White House tomorrow, where group leaders will speak on why they believe reducing imprisonment while protecting public safety is a vital national goal....
“As the public servants working every day to keep our citizens safe, we can say from experience that we can bring down both incarceration and crime together,” said Law Enforcement Leaders Co-Chair Garry McCarthy, Superintendent of the Chicago Police Department. “Good crime control policy does not involve arresting and imprisoning masses of people. It involves arresting and imprisoning the right people. Arresting and imprisoning low-level offenders prevents us from focusing resources on violent crime. While some may find it counterintuitive, we know that we can reduce crime and reduce unnecessary arrests and incarceration at the same time.”
Members of the group will work within their departments as well as with policymakers to pursue reforms around four policy priorities:
• Increasing alternatives to arrest and prosecution, especially mental health and drug treatment. Policies within police departments and prosecutor offices should divert people with mental health and drug addiction issues away from arrest, prosecution, and imprisonment and instead into proper treatment.
• Reducing unnecessary severity of criminal laws by reclassifying some felonies to misdemeanors or removing criminal sanctions, where appropriate.
• Reducing or eliminating mandatory minimum laws that require overly harsh, arbitrary sentences for crimes.
• Strengthening ties between law enforcement and communities by promoting strategies that keep the public safe, improve community relations, and increase community engagement.
“Our decision to come together reflects the deep commitment among law enforcement’s ranks to end unnecessary, widespread incarceration,” said Law Enforcement Leaders Co-Chair Ronal Serpas, former Superintendent of the New Orleans Police Department. “As leaders of the law enforcement community, we are committed to building a smarter, stronger, and fairer criminal justice system. We do not want to see families and communities wrecked by our current system. Forming this new organization will allow us to engage policymakers and support changes to federal and state laws, as well as practices, to end unnecessary incarceration.”
Saturday, October 17, 2015
Remarkable Fusion series on "Prison Kids"
The multi-platform media company Fusion puts a number of its platforms to great use in this massive series of videos and articles under the banner "Prison Kids: A crime against America's children." Here is just a partial list (with links) of some of the pieces in the series:
Making a case for prison abolition, not just sentencing and prison reform
This notable article in The Nation authored by Mychal Denzel Smith seeks to make the case for a prison abolition movement that would go far beyond the kinds of sentencing reform garnering bipartisan support these day. This commentary is headlined, "The Senate’s Bipartisan Criminal Justice Reform Bill Only Tackles Half the Problem: If we don’t face the injustice of the very existence of prisons, the root causes of mass incarceration will go unaddressed." Here are excerpts:
The Sentencing Reform and Corrections Act, as it is currently known, reduces mandatory minimum sentences for some nonviolent drug offenders, replaces life sentences for “three strikes” violations with 25 years, provides judges more discretion in sentencing low-level drug offenders, mostly ends solitary confinement for juveniles, and funds reentry programs, among other reforms. The bill is expected to pass in the Senate, be supported in the House (which introduced its own reform bill earlier this year), and ultimately be signed into law by President Obama.
In the immediate future, it will mean shorter sentences for some nonviolent drug offenders in federal prison; when applied retroactively, it will lead to the release of others. The prison population will shrink slightly, and the federal government will save a bit of money. But the United States will remain free to continue locking away millions of people.
Many reform advocates have praised the Senate proposal, and understandably so. Organizing around prisons and incarcerated people — those written off as the dregs of society—is tough, and any win is a welcome one, particularly one that will directly benefit people currently serving unjust sentences.... [But]changes only affect federal sentencing guidelines and don’t end mandatory minimums (in fact, the bill imposes new minimums, on certain crimes related to domestic violence and gun possession or sale linked to terrorist activity). Despite such moderate reforms, it is being hailed as “historic,” “major,” and a “game changer.” Why? Because a true agenda for change has been ceded to the language of reform. The debate started and has effectively ended without considering the injustice of the very existence of prisons. We never considered abolition....
Abolition makes sense, though, only if we see prisons as a site of injustice in and of themselves. And they are — not only because of the violence of rape and murder that exists within prison walls, the psychological damage, the lack of educational opportunities, and the denial of due process that locks up innocent people. Prison is the means by which we tell ourselves we are dealing with our societal ills, but only creating more. Prison makes us lazy thinkers, hungry for revenge instead of justice. Prison is a violent representation of our failure to fight inequality at all levels. In abolishing prison, we force ourselves to answer the difficult question: How do we provide safety and security for all people?
Abolition will not win right now. But an abolitionist framework for crafting reforms would lead to more substantial changes in the US prison system. An abolitionist framework makes us consider not only reducing mandatory minimums but eliminating them altogether. An abolitionist framework would call for us to decriminalize possession and sale of drugs. Abolition would end the death penalty and life sentences, and push the maximum number of years that can be served for any offense down to ten years, at most.
With these reforms in place, we as a society would have a huge incentive to rehabilitate those in prison, and we would ensure the incarcerated are capable of socialization when they are released. And without being able to depend on prison as a site of retribution, we would have to find new ways to address things like gender-based violence, sexual assault, and domestic violence. And we could then start making the kinds of investments in alleviating poverty that [advocates] call for.
But we can’t do that so long as prison exists as a fail-safe. Abolition may not win today, but neither did it win when it was first introduced as solution for slavery or segregation. So long as we allow the terms of the debate to be shaped by what is politically possible, we’ll only ever be taking tiny steps and calling them major.
Thursday, October 15, 2015
"Ending the war on drugs would not end mass incarceration" ... but it would help, perhaps a lot
The title of this post is the headline of this new Washington Post opinion piece authored by Charles Lane, plus a little commentary from me. The piece serves as fitting fact-check of recent sloppy statements about prison populations by Prez candidates (as do other recent similar pieces via PolitiFact and The Marshall Project). But, like lots of commentary highlighting the statistical realities of modern prison populations, I fear Lane here underplays the potential import and impact of significant changes in state and federal drug laws. Here are excerpts, with my extended commentary at the end:
It seems that no presidential debate this year would be complete without denunciations of the drug laws, which, it is alleged, result in long prison terms for thousands of people, disproportionately African Americans, who are guilty only of low-level offenses, thus fueling “mass incarceration.”
At the last Republican debate, on Sept. 16, former Hewlett-Packard chief executive Carly Fiorina charged that “two-thirds of the people in our prisons are there for nonviolent offenses, mostly drug-related.”
Apropos of former Florida governor Jeb Bush’s admitted youthful marijuana use, Sen. Rand Paul (Ky.) observed that “there is at least one prominent example on the stage of someone who says they smoked pot in high school, and yet the people going to jail for this are poor people, often African Americans and often Hispanics, and yet the rich kids who use drugs aren’t.”
When Democrats faced off Tuesday night, Sen. Bernie Sanders (I-Vt.) said he is for marijuana legalization, “because I am seeing in this country too many lives being destroyed for nonviolent offenses. We have a criminal justice system that lets CEOs on Wall Street walk away, and yet we are imprisoning or giving jail sentences to young people who are smoking marijuana.”
“I agree completely with the idea that we have got to stop imprisoning people who use marijuana. . . . We have a huge population in our prisons for nonviolent, low-level offenses that are primarily due to marijuana,” the front-running former secretary of state, Hillary Clinton, chimed in.
Too bad this bipartisan agreement is contradicted by the evidence. Fiorina’s numbers, for example, are exaggerated: In 2014, 46 percent of all state and federal inmates were in for violent offenses (murder, rape, robbery and aggravated assault), according to the latest Justice Department data. And this is a conservative estimate, since the definition of violent offense excludes roughly 30,000 federal prisoners, about 16 percent of the total, who are doing time for weapons violations.
Drug offenders account for only 19.5 percent of the total state-federal prison population, most of whom, especially in the federal system, were convicted of dealing drugs such as cocaine, heroin and meth, not “smoking marijuana.”
Undeniably, the population of state prisons (which house the vast majority of offenders) grew from 294,000 in 1980 to 1,362,000 in 2009 — a stunning 363 percent increase — though it has been on a downward trajectory since the latter date. But only 21 percent of that growth was due to the imprisonment of drug offenders, most of which occurred between 1980 and 1989, not more recently, according to a review of government data reported by Fordham law professor John Pfaff in the Harvard Journal of Legislation. More than half of the overall increase was due to punishment of violent offenses, not drugs, Pfaff reports....
Given the relatively small share of drug offenders, ending the war on drugs would not significantly alter the racial disparity in incarceration rates, contrary to the conventional wisdom. Blacks make up 37.5 percent of all state prisoners, about triple their share of the population as a whole, according to the Justice Department. If we released all 208,000 people currently in state prison on a drug charge, the proportion of African Americans in state prison would still be 37 percent. In short, ending the “war on drugs” is not quite the panacea for mass incarceration that politicians imply.
Marijuana legalization could help reduce arrest rates, to be sure; and to the extent fewer people get busted for smoking pot, that would, indeed, cut down on the resulting undue negative personal and social consequences. Otherwise, the bipartisan consensus in favor of looser drug laws is just the latest political free lunch, served up by politicians who would rather discuss anything except real public policy trade-offs.
Republicans and Democrats alike are propounding the crowd-pleasing notion that we can have less incarceration — saving the country billions of dollars and international shame — without risking an increase in violent crime, or other harms. In truth, if we released all 300,000 drug offenders from state and federal prison, the U.S. incarceration rate would still be far higher than it was three decades ago, and far higher than the rates of other industrial democracies.
The only way to lower it dramatically would be to reduce the frequency and duration of imprisonment for violent crimes, while continuing to reduce violent crime itself. If any of the candidates has a plan to do that, he or she should speak up.
Lane is quite right to highlight the statistical reality that lots more imprisoned offenders are behind bars for violent offenses than for drug crimes. But he fails to ackowledge that a considerable amount of violent crime is related to black market turf wars and that the failure to treat effectively drug addictions and related woes often drive property crimes. American legal and social history should provide a ready reminder of these realities: violent and property crimes (and incarceration rates) spiked considerably during alcohol Prohibition not because of greater alcohol use but due to enhanced incentives for otherwise law-abiding people to profit in the black market from others' desire for a drink.
Regular followers of this blog likely recall the case of (my former client) Weldon Angelos, which provides a clear example of a low-level marijuana dealer serving decades in federal prison based technically on "violent firearm crimes." The modern federal drug war explained why an informant (himself fearing a long federal drug sentence) told authorities Angelos was a major drug dealer, why federal prosecutors threated Angelos with over 100 years mandatory imprisonment if he did not forgo his right to a trial after te informant arranged to buy marijuana from Angelos, and why even after his acquittal on some charges, a federal judge was bound by law to give Angelos 55 years in federal prison for having firearms nearby as he sold the informant a relatively small amount of marijuana.
I bring all this up because, again to recall American history, four score ago the ending of alcohol Prohibition indeed did itself significantly help to "reduce violent crime itself." I am cautiously hopeful that ending marijuana prohibition will help have the same effect in the modern era. More broadly, I sincerely believe we would further reduce violent crime by ending a drug war that relies on state violence and condemnation and investing monies saved (and taxes earned) into a significant public-health commitment to address serious drug addictions using evidence-based treatments.
Tuesday, October 13, 2015
Could local DA elections be a critical means to fighting mass incarceration?
Lots of sophisticated analyses of the roots and causes of modern mass incarceration, especially the empirical work done by John Pfaff, rightly suggest that the activities of local prosecutors are a critical part of the overall story. Consequently, I find both notable and astute this new Economist commentary which suggests local elections for district attorneys can and should be a focal point for advocates looking to combat mass incarceration. The piece is headlined "Two cheers: The best way to reduce the prison population," and here are excerpts:
In 2013 Charles Hynes, Brooklyn’s district attorney, was voted out of office after 24 years on the job. The ousting of an elected local prosecutor is rare in America. Incumbents who run for re-election win 95% of the time. Until Mr Hynes got the boot, no incumbent DA had lost a vote in Brooklyn since 1911. Mr Hynes’s fate needs to be more common, however, if America is to cease to be the world’s leading jailer. At present, it accounts for 5% of the world’s population and nearly 25% of its prisoners. Elected public prosecutors, such as Brooklyn’s Mr Hynes, are largely to blame.
The incarceration rate is like the water level in a bathtub. If the tap runs faster than the water drains, the level rises. The mandatory minimum sentences and truth-in-sentencing laws passed in the 1980s and 1990s blocked the outflow from America’s prison system. Proposals for sentencing reform, such as the bipartisan bill introduced by Chuck Grassley, a Republican senator from Iowa who chairs the Senate Judiciary Committee, would clear it a bit, by returning some discretion to judges and parole boards. But it would be even better to turn down the gushing tap.
Although the crime rate began to decline in the 1990s, the rate of admissions to prisons continued to climb for two decades, until it peaked in 2006. The criminal-justice system managed to put more and more people behind bars for 15 years, even though fewer and fewer people were committing crimes. The admissions rate has now reverted to the level in the late-1990s, but remains three times greater than it was 30 years ago when the crime rate was higher than it is today....
DAs can decide whether charges will be filed against arrested persons and, if so, what they will be charged with. Less than 5% of criminal cases go to trial: most end in plea bargains. And it is DAs who decide which plea deals to offer and accept, in effect determining whether offenders will be sent to prison and, if so, for how long. By and large, they are not a merciful lot.
They are also usually elected at county level, whereas prisons are run at state level. Short sentences — less than a year in most jurisdictions — are often served in county jails, putting county taxpayers on the hook. Punitive DAs can take the fiscal burden off the people who elect them by foisting the cost of imprisonment onto states.
If legislators cannot rein in DAs, that job must fall to voters. Because unseating an incumbent is so unusual, and because there are more than 3,000 county and state district attorneys, this may seem an unpromising path to a lower incarceration rate. But more than half of state prisoners, who make up the vast majority of the incarcerated, are housed in just ten states. Within those states, most prisoners come from a few large metropolitan jurisdictions. Moreover, these areas tend to contain lots of rehabilitation-minded liberals as well as minority voters, who are more likely to have family members in prison. Prosecutors in California and New York have already changed tack, and incarceration rates in those states have fallen.
Kenneth Thompson, Brooklyn’s first black DA, managed to knock Mr Hynes off his perch by highlighting a couple of dodgy murder convictions and speaking out against aggressive police tactics. And though sentencing reform is obviously needed too, the election of just a handful of “smart-on-crime” DAs in and around big cities like Houston, Chicago, Miami and Los Angeles could cut America’s incarceration rate even more dramatically.
I am not convinced that local DA elections are the "best way" to attack mass incarceration, but I do think that the work of all prosecutors (local, state and federal) should be subject to a lot more scrutiny and accountability and should be a concern for all those interested in modern criminal justice reforms.
October 13, 2015 in Elections and sentencing issues in political debates, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6)
Monday, October 12, 2015
"The Reverse Mass Incarceration Act"
The title of this post is the title of this intriguing new idea/report coming today from the Brennan Center for Justice. Here is the report's introduction:
Leaders across the political spectrum agree: The United States must end mass incarceration. But how? What bold solutions will achieve this change?
Our prison crisis has many causes. One major contributor: a web of perverse financial incentives across the country that spurred more arrests, prosecutions, and prison sentences. A prime example is the 1994 Crime Bill, which authorized $12.5 billion ($19 billion in today’s dollars) to states to increase incarceration. And 20 states did just that, yielding a dramatic rise in prison populations.
To reverse course, the federal government can apply a similar approach. It can be termed a “Reverse Crime Bill,” or the “Reverse Mass Incarceration Act.” It would provide funds to states to reduce imprisonment and crime together.
The United States has 5 percent of the world’s population, yet has 25 percent of the world’s prisoners. If the prison population were a state, it would be the 36th largest — bigger than Delaware, Vermont, and Wyoming combined. Worse, our penal policies do not work. Mass incarceration is not only unnecessary to keep down crime but is also ineffective at it. Increasing incarceration offers rapidly diminishing returns.The criminal justice system costs taxpayers $260 billion a year. Best estimates suggest that incarceration contributes to as much as 20 percent of the American poverty rate.
During the crime wave of the 1970s and 1980s, lawmakers enacted stringent laws to instill law and order in devastated communities. But many of these laws went too far. The federal government played an outsize role by financially subsidizing states to incarcerate more people. Today, the federal government sends $3.8 billion to states and localities each year for criminal justice.These dollars are largely focused on increasing the size of our justice system.
But times have changed. We now know that mass incarceration is not necessary to keep us safe. We now know that we can reduce both crime and incarceration. States like Texas, New York, Mississippi, and California have changed their laws to do just that. For the first time in 40 years, both crime and incarceration have fallen together, since 2008.
How can this momentum be harnessed into action? Just as Washington encouraged states to incarcerate, it can now encourage them to reduce incarceration while keeping down crime. It can encourage state reform efforts to roll back prison populations. As the country debates who will be the next president, any serious candidate must have a strong plan to reform the justice system.
The next president should urge Congress to pass the Reverse Mass Incarceration Act. It would encourage a 20 percent reduction in imprisonment nationwide. Such an Act would have four components:
- A new federal grant program of $20 billion over 10 years in incentive funds to states.
- A requirement that states that reduce their prison population by 7 percent over a three-year period without an increase in crime will receive funds.
- A clear methodology based on population size and other factors to determine how much money states receive.
- A requirement that states invest these funds in evidence-based programs proven to reduce crime and incarceration.
Such an Act would have more reach than any of the other federal proposals. It could be implemented through budgeting procedures. It could be implemented as a stand-alone Act. Or, it could be introduced as an amendment to a pending bill.
Sunday, October 11, 2015
"Number of Older Prisoners Grows Rapidly, Threatening to Drive Up Prison Health Costs"
The title of this post is the title of this informative Stateline posting from The Pew Charitable Trusts. Here are the primary passages:
In a year when the nation’s overall prison population dropped, the number of older inmates grew rapidly in 2014, continuing a trend that translates into higher federal and state prison health care spending....
In 1999, inmates age 55 and above — a common definition of older prisoners — represented just 3 percent of the total population. By 2014, that share had grown to 10 percent.
Like senior citizens outside prison walls, older inmates are more likely to experience dementia, impaired mobility, and loss of hearing and vision, among other conditions. In prisons, these ailments present special challenges and can necessitate increased staffing levels and enhanced officer training, as inmates may have difficulty complying with orders from correctional officers. They can also require structural accessibility adaptions, such as special housing and wheelchair ramps. For example, in Florida, four facilities serve relatively large populations of older inmates. These units help meet special needs, such as palliative and long-term care.
Additionally, older inmates are more susceptible than the rest of the prison population to costly chronic medical conditions. In 2011-12, for example, 73 percent of state and federal prisoners age 50 years or older reported to the Bureau of Justice Statistics that they had experienced a chronic medical condition such as hypertension, arthritis, asthma, or diabetes, among others. Younger inmates age 18 to 24 (28 percent) or 25 to 34 (41 percent) were much less likely to have reported such a condition.
All of these challenges create additional health and non-health expenses for prisons, which are constitutionally required to provide adequate medical attention and respond to the unique needs of these inmates.
The National Institute of Corrections pegged the annual cost of incarcerating prisoners 55 and older with chronic and terminal illnesses at, on average, two to three times that of the expense for all other inmates. More recently, other researchers have found that the cost differential may be wider.
In May, the Department of Justice’s inspector general found that within the Federal Bureau of Prisons, institutions with the highest percentages of aging inmates spent five times more per inmate on medical care — and 14 times more per inmate on medication — than institutions with the lowest percentage of aging inmates.
A few (of many) recent and older related posts:
- Examining the sources of an ever-aging US prison population
- New major report documents costs and concerns with aging prison populations
- Big new ACLU report highlights the high cost of high numbers of elderly prisoners
- "Aging Prisoners, Increasing Costs, and Geriatric Release"
- What should Florida and other states do with all their old sex offenders?
- Are all states going to need to create old-age prisons?
- The high costs of an aging prison population
- The story of prisons becoming nursing homes in Virginia
- "Frail and Elderly Prisoners: Do They Still Belong Behind Bars?"
- The never-aging (and ever-costly) story of ever-aging US prison populations
Thursday, October 08, 2015
"Mass Incarceration: An Annotated Bibliography"
The title of this post is the title of this notable new document prepared by Nicole Dyszlewski, Lucinda Harrison-Cox and Raquel Ortiz now available via SSRN. Here is the abstract:
This annotated bibliography is a scholarly supplement to the 2015 Roger Williams University School of Law Symposium "Sounding the Alarm on Mass Incarceration: Moving Beyond the Problem and Toward Solutions." It contains texts selected to facilitate further study by symposium attendees, researchers, lawyers, policy analysts, law librarians, public officials, law students, criminologists, casual readers, undergraduate professors and activists. The selected monographs have been briefly summarized and critiqued by the authors.
A quick scan of this scholarly supplement reveals it to be an extraordinary resource that I am likely to use on a regular basis. I highly recommend this document (and I hope it will get updated and re-posted periodically).
Tuesday, October 06, 2015
Early prisoner release following reduced drug guideline retroactivity about to be reality
It seems like a real long time ago that the US Sentencing Commission suggested it might reduced the severity of its drug sentencing guidelines across the board. (In fact, it was way back in early January 2014, as reported in this post.) That USSC proposal a few month later became a formal guideline amendment known as drugs -2 (as reported here in April 2014); some months after that, the USSC formally voted to make this reduced guideline fully retroactive to those already serving long federal drug prison sentences (as reported here in July 2014).
But when making its reduced drug guidelines retroactive, the USSC also provided that no federal drug prisoner should be released until fall 2015 in order to give courts and prisons time to process all thousands of folks who would not be eligible to seek early release. Now, as this new Washington Post piece reports, all this USSC reform is finally going to mean thousands of prisoners actually securing early releases:
The Justice Department is set to release about 6,000 inmates early from prison — the largest one-time release of federal prisoners — in an effort to reduce overcrowding and provide relief to drug offenders who received harsh sentences over the past three decades.
The inmates from federal prisons nationwide will be set free by the department’s Bureau of Prisons between Oct. 30 and Nov. 2. Most of them will go to halfway houses and home confinement before being put on supervised release.
The early release follows action by the U.S. Sentencing Commission — an independent agency that sets sentencing policies for federal crimes — which reduced the potential punishment for future drug offenders last year and then made that change retroactive....
The panel estimated that its change in sentencing guidelines eventually could result in 46,000 of the nation’s approximately 100,000 drug offenders in federal prison qualifying for early release. The 6,000 figure, which has not been reported previously, is the first tranche in that process.
“The number of people who will be affected is quite exceptional,” said Mary Price, general counsel for Families Against Mandatory Minimums, an advocacy group that supports sentencing reform. The Sentencing Commission estimated that an additional 8,550 inmates would be eligible for release between this Nov. 1 and Nov. 1, 2016....
The U.S. Sentencing Commission voted unanimously for the reduction last year after holding two public hearings in which members heard testimony from former attorney general Eric H. Holder Jr., federal judges, federal public defenders, state and local law enforcement officials, and sentencing advocates. The panel also received more than 80,000 public comment letters, with the overwhelming majority favoring the change.
Congress did not act to disapprove the change to the sentencing guidelines, so it became effective on Nov. 1, 2014. The commission then gave the Justice Department a year to prepare for the huge release of inmates.
The policy change is referred to as “Drugs Minus Two.” Federal sentencing guidelines rely on a numeric system based on different factors, including the defendant’s criminal history, the type of crime, whether a gun was involved and whether the defendant was a leader in a drug group. The sentencing panel’s change decreased the value attached to most drug-trafficking offenses by two levels, regardless of the type of drug or the amount.
An average of about two years is being shaved off eligible prisoners’ sentences under the change. Although some of the inmates who will be released have served decades, on average they will have served 8 1/2 years instead of 10 1/2 , according to a Justice Department official.
“Even with the Sentencing Commission’s reductions, drug offenders will have served substantial prison sentences,” Deputy Attorney General Sally Yates said. “Moreover, these reductions are not automatic. Under the commission’s directive, federal judges are required to carefully consider public safety in deciding whether to reduce an inmate’s sentence.”
In each case, inmates must petition a judge, who decides whether to grant the sentencing reduction. Judges nationwide are granting about 70 sentence reductions per week, Justice officials said. Some of the inmates already have been sent to halfway houses.
In some cases, federal judges have denied inmates’ requests for early release. For example, U.S. District Judge Royce C. Lamberth recently denied requests from two top associates of Rayful Edmond III, one of the District’s most notorious drug kingpins. Federal prosecutors did not oppose a request by defense lawyers to have the associates, Melvin D. Butler and James Antonio Jones, released early in November. But last month Lamberth denied the request, which would have cut about two years from each man’s projected 28 1/2 -year sentence....
Critics, including some federal prosecutors, judges and police officials, have raised concerns that allowing so many inmates to be released at the same time could cause crime to increase.
But Justice officials said that about one-third of the inmates who will be released in a few weeks are foreign citizens who will be quickly deported. They also pointed to a study last year that found that the recidivism rate for offenders who were released early after changes in crack-cocaine sentencing guidelines in 2007 was not significantly different from the rate for offenders who completed their sentences.
Sunday, October 04, 2015
Highlighting how state education spending decreases as state corrections spending increases
Following on the heels of the Education Secretary urging states to spend less of prisons and more on schools (noted here), this Christian Science Monitor article notes reports on the relationship between different kinds of human capital investments states have made in recent years. The article is headlined "The hidden costs of funding prisons instead of schools: As state incarceration rates continue to rise across the country, so are cuts in higher education funding." Here are excerpts (with links from the original):
Lawmakers in 11 states are spending more on prisons and jails than their public colleges, according to a report compiled by the American Academy of Arts and Sciences. According to the report, state budgets for public universities have been cut about 20 percent since 2008 when recession hit, while funding for prisons has spiked 141 percent.
That's solving the wrong side of the problem, argued Secretary of Education Arne Duncan during a speech this week. "The linkage between education, or a lack thereof, and incarceration is powerful," he said. "More than two-thirds of state prison inmates are high school dropouts," said Secretary Duncan, "and an African-American male between the ages of 20 and 24 without a high school diploma or GED has a higher chance of being imprisoned than of being employed."A 2014 report from the Center on Budget and Policy Priorities (CBPP) shows a direct correlation between increased prison spending and cuts in education. Not surprisingly, states with the highest incarceration rates pull the most money from their schools. And that drives up tuition at public universities, reports CNN. State funding "accounts for about half of a typical school's budget," CNN reports. "The other half comes from the federal government and tuition and fees."
According to the new AAAS report, the states that spend more on prisons than universities are Michigan, Oregon, Arizona, Vermont, Colorado, Pennsylvania, New Hampshire, Delaware, Rhode Island, Massachusetts, and Connecticut.
Prior recent related post:
- Education Secretary calls on state and local governments to "put a new emphasis on schools rather than jails"
Thursday, October 01, 2015
Basic elements of Sentencing Reform and Corrections Act of 2015
As I write this, I am watching (at this link) the tail end of speeches being given by a series of US Senators discussing their pleasure and thanks concerning the bipartisan agreement to propose the Sentencing Reform and Corrections Act of 2015 (which I will start calling SRCA 2015). Here are links to two documents provided by the Senate Judiciary Committee summarizing what appears in this bill:
Here ais the full text of the summary document:
Reforms and Targets Enhanced Mandatory Minimums for Prior Drug Felons: The bill reduces the enhanced penalties that apply to repeat drug offenders and eliminates the three-strike mandatory life provision, but it allows those enhanced penalties to be applied to offenders with prior convictions for serious violent and serious drug felonies.
Broadens the Existing Safety Valve and Creates a Second Safety Valve: The bill expands the existing safety valve to offenders with more extensive criminal histories but excludes defendants with prior felonies and violent or drug trafficking offenses unless a court finds those prior offenses substantially overstate the defendant’s criminal history and danger of recidivism. The bill also creates a second safety valve that gives judges discretion to sentence certain low-level offenders below the 10-year mandatory minimum. But defendants convicted of serious violent and serious drug felonies cannot benefit from these reforms.
Reforms Enhanced Mandatory Minimums and Sentences for Firearm Offenses: The bill expands the reach of the enhanced mandatory minimum for violent firearm offenders to those with prior federal or state firearm offenses but reduces that mandatory minimum to provide courts with greater flexibility in sentencing. The bill also raises the statutory maximum for unlawful possession of firearms but lowers the enhanced mandatory minimum for repeat offenders.
Creates New Mandatory Minimums for Interstate Domestic Violence and Certain Export Control Violations: The bill adds new mandatory minimum sentences for certain crimes involving interstate domestic violence and creates a new mandatory minimum for providing weapons and other defense materials to prohibited countries and terrorists.
Applies the Fair Sentencing Act and Certain Sentencing Reforms Retroactively
Provides for Prison Reform based on the Cornyn-Whitehouse CORRECTIONS Act: The bill requires the Department of Justice to conduct risk assessments to classify all federal inmates and to use the results to assign inmates to appropriate recidivism reduction programs, including work and education programs, drug rehabilitation, job training, and faith-based programs. Eligible prisoners who successfully complete these programs can earn early release and may spend the final portion (up to 25 percent) of their remaining sentence in home confinement or a halfway house.
Limits Solitary Confinement for Juveniles in Federal Custody and Improves the Accuracy of Federal Criminal Records
Provides for a Report and Inventory of All Federal Criminal Offenses
WOWSA!! And the more detailed section-by-section analysis suggests that lots and lots of badly over-sentenced federal offenders subject to extreme mandatory minimum sentencing provisions in not-so-extreme cases (including folks I have represented or filed amicus briefs on behalf of like Weldon Angelos and Edward Young) might be able to get retroactive relief if this legislation becomes law!! Thus, to summarize, just the introduction of SRCA 2015 is a huge development, and I strongly believe its provisions can will significantly reshape the federal sentencing and prison system if (and I hope when) it becomes law.
Though I will still need to see the precise text before I will be in a position to really assess all that appears in this bill, these summary documents confirm my hope that this bill was likely to be among the biggest and most ambitious federal sentencing reform efforts we have seen since the enactment of the Sentencing Reform Act more than three decades ago. Mega-kudos to all involved, Senators and staffers and advocates of all stripes, and now let's see if all the good mojo that this SRCA 2015 represents might get this bill through the Congress in the coming weeks!!
UPDATE: The full text of the SRCA runs 141 pages, and the folks at FAMM have it available at this link.
October 1, 2015 in Elections and sentencing issues in political debates, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (24)
Wednesday, September 30, 2015
Education Secretary calls on state and local governments to "put a new emphasis on schools rather than jails"
Secretary of Education Arne Duncan today gave this notable speech at the National Press Club. The lengthy speech covers a lot of ground, but it is especially focused on the "linkage between education, or a lack thereof, and incarceration" and calls upon government to reorient funding to prioritized education over criminalization. Here are excerpts from the speech, which merits a read in full:
I want to lay out an idea today that will strike some as improbable or impractical, but which I think is essential. It's about setting a different direction as a society, a different priority — one that says we believe in great teaching early in our kids' lives, rather than courts, jails and prisons later....
The bet we're making now is clear. In the last three decades, state and local correctional spending in this country has increased almost twice as fast as spending on elementary and secondary education. Ask yourself, "What does that say about what we believe?"
Leaders at the state and local levels have the power to change that — to place a bet on getting it right with kids from the start, and on the power of great teaching in particular.
I'm not pretending for a second that schools can do this alone — that they can replace efforts to deal with poverty, hunger, homelessness, or other ills that affect our young people. But the facts about the impact of great teaching are too powerful to ignore....
The linkage between education, or a lack thereof, and incarceration is powerful. More than two-thirds of state prison inmates are high school dropouts. And an African-American male between the ages of 20 and 24 without a high school diploma or GED has a higher chance of being imprisoned than of being employed.
Today, our schools suspend roughly three and a half million kids a year, and refer a quarter of a million children to the police each year. And the patterns are even more troubling for children of color — particularly boys — and for students with disabilities.
We cannot lay our incarceration crisis at the door of our schools. But we have to do our part to end the school to prison pipeline. That's going to force us to have difficult conversations about race, which I'll get to in a moment.
But I want to start by talking about bold new steps our states and cities can take to get great teachers in front of our neediest kids. It's hardly a secret that it's challenging to recruit and keep fantastic teachers in the schools where the needs are greatest. The rewards of that work are extraordinary — but it's an incredibly hard job.
So here's an idea for how you put a new emphasis on schools rather than jails. If our states and localities took just half the people convicted of nonviolent crimes and found paths for them other than incarceration, they would save upwards of $15 billion a year.
If they reinvested that money into paying the teachers who are working in our highest-need schools and communities — they could provide a 50 percent average salary increase to every single one of them. Specifically, if you focused on the 20 percent of schools with the highest poverty rates in each state, that would give you 17,640 schools — and the money would go far enough to increase salaries by at least 50 percent.
I've long said great teachers deserve to be paid far more. With a move like this, we'd not just make a bet on education over incarceration, we'd signal the beginning of a long-range effort to pay our nation's teachers what they are worth. That sort of investment wouldn't just make teachers and struggling communities feel more valued. It would have ripple effects on our economy and our civic life. ...
There are lots of ways to go about this, and ultimately, local leaders and educators will know what's best for their community. But the bottom line is that we must do more to ensure that more strong teachers go to our toughest schools.
Right now, in far too many places, glaring and unconscionable funding gaps create all the wrong incentives. To take just one example — and there are many — the Ferguson-Florissant school district in Missouri spends about $9,000 per student. Eleven miles away, in Clayton, funding is about double, at $18,000 per student. How is that a plan to give kids a fair start?...
Let's invest more in the adults who have dedicated their professional careers to helping young people reach their full potential. And let's place a new emphasis on our young people as contributors to a stronger society, not inmates to pay for and warehouse.
I'm not naïve about doing all of this overnight. And for those already in the system, we can't just walk away from them — we also have to invest in education, career training, treatment, and support programs that help young people who are already involved in the criminal justice system become contributing members of our society. That's why we are starting the Second Chance Pell program, to give those who are incarcerated a better chance at going to college.
To be totally clear, I'll repeat that we are talking about savings that come from alternative paths that involve only nonviolent offenders. This is not about being soft on dangerous criminals — this is about finding ways, consistent with wise criminal justice policies, to reapportion our resources so we prevent crime in the first place....
I'm convinced that making a historic bet on getting it right from the start would pay massive returns for our families, our communities, our society and our nation's economy. According to a 2009 McKinsey report, the achievement gap between us and other top-performing nations is depriving the U.S. economy of more than $2 trillion in economic output every year.
A separate study found that a 10 percent increase in high school graduation rates would reduce murder and assault arrest rates by approximately 20 percent. And a one percent increase in male graduation rates would save up to $1.4 billion in the social costs of incarceration. So you don't have to be a liberal romantic to like the idea of investing up front in our kids. A hard-nosed look at the bottom line will take you to the same place.
I recognize that what I've just laid before you is ambitious. But, if we're serious about eliminating the "school to prison pipeline," a shift in funding is only part of what we need to do. In truth, there's a lot more we need to get right....
Taking the essential steps to expand what we know works in education should be a no-brainer. But there's more to it than just budgets and policies. Perhaps the hardest step of all is taking an unsparing look at our own attitudes and decisions, and the ways they are tied to race and class. In the wake of Ferguson, Baltimore and elsewhere, this has become a central discussion for many in America, and rightly so — if belatedly. Those of us in education cannot afford to sit back.
Let's recognize, up front, that this is among the hardest conversations we can have in education. People enter this field out of love for students and the genuine desire to see them excel and thrive. Yet we also know that suspension, expulsion and expectations for learning track too closely with race and class.
As the author Ta-Nehisi Coates recently pointed out, our high rates of incarceration, our high numbers of high school dropouts, and our high rates of child poverty are not unrelated problems....
It's difficult work, challenging centuries of institutionalized racism and class inequality. But I firmly believe a hard look at ourselves is an essential part of becoming the nation we strive to be — one of liberty and opportunity, regardless of the circumstances of your birth.
Tuesday, September 29, 2015
Is the "don't blame the drug war for mass incarceration" counter-narrative problematically incomplete?
As more serious folks have started to take the problem of modern mass incarceration more seriously, I see a couple key narratives about the problem and potential solutions emerging. The predominant narrative, espoused by Michelle Alexander in The New Jim Crow and by long-time critics of the so-called "war on drugs," is that mass incarceration is principally a product of the drug war and its associated severe sentencing laws. This narrative always struck me as a bit too simplistic and incomplete.
Lately an important counter-narrative has taken hold: fueled by prison population data and prosecutorial practices stressed by John Pfaff and a few others, more folks are asserting that the drug war and its severe sentencing laws are not central to mass incarceration and that their reversal is not really a solution to the problems of mass incarceration. This counter-narrative is today well-explained in this New York Times column by David Brooks. Here are highlights:
Pretty much everybody from Barack Obama to Carly Fiorina seems to agree that far too many Americans are stuck behind bars. And pretty much everybody seems to have the same explanation for how this destructive era of mass incarceration came about.
First, the war on drugs got out of control, meaning that many nonviolent people wound up in prison. Second, mandatoryminimum sentencing laws led to a throw-away-the-key culture, with long, cruel and pointlessly destructive prison terms....
The popular explanation for how we got here, however, seems to be largely wrong, and most of the policy responses flowing from it may therefore be inappropriate. The drug war is not even close to being the primary driver behind the sharp rise in incarceration. About 90 percent of America’s prisoners are held in state institutions. Only 17 percent of these inmates are in for a drug-related offense, or less than one in five.
Moreover, the share of people imprisoned for drug offenses is dropping sharply, down by 22 percent between 2006 and 2011. Writing in Slate, Leon Neyfakh emphasized that if you released every drug offender from state prison today, you’d reduce the population only to 1.2 million from 1.5 million.
The war on drugs does not explain the rocketing rates of incarceration, and ending that war, wise or not, will not solve this problem. The mandatory-minimum theory is also problematic. Experts differ on this, but some of the most sophisticated work with the best data sets has been done by John Pfaff of Fordham Law School....
His research suggests that while it’s true that lawmakers passed a lot of measures calling for long prison sentences, if you look at how much time inmates actually served, not much has changed over the past few decades. Roughly half of all prisoners have prison terms in the range of two to three years, and only 10 percent serve more than seven years. The laws look punitive, but the time served hasn’t increased, and so harsh laws are not the main driver behind mass incarceration, either.
So what does explain it? Pfaff’s theory is that it’s the prosecutors. District attorneys and their assistants have gotten a lot more aggressive in bringing felony charges. Twenty years ago they brought felony charges against about one in three arrestees. Now it’s something like two in three. That produces a lot more plea bargains and a lot more prison terms.
I asked Pfaff why prosecutors are more aggressive. He’s heard theories. Maybe they are more political and they want to show toughness to raise their profile to impress voters if they run for future office. Maybe the police are bringing stronger cases. Additionally, prosecutors are usually paid by the county but prisons by the state, so prosecutors tend not to have to worry about the financial costs of what they do.
Pfaff says there’s little evidence so far to prove any of these theories, since the prosecutorial world is largely a black box. He also points out that we have a radically decentralized array of prosecutors, with some elected and some appointed. Changing their behavior cannot be done with one quick fix.
Some politicians and activists suggest that solving this problem will be easy — just release the pot smokers and the low-level dealers. In reality, reducing mass incarceration means releasing a lot of once-violent offenders. That may be the right thing to do in individual cases, but it’s a knotty problem.
Generally speaking, the "don't blame the drug war for mass incarceration" counter-narrative makes important points and is an essential consideration for serious researchers and reform advocates. Pfaff's data highlights critical factual realities that fully justify the essential message that modern mass incarceration is, in Brooks' phrase, a "knotty problem."
But I fear that the counter-narrative is also too simplistic and incomplete as it fails to consider sufficiently how the the drug war and associated sentencing laws remain at the beating heart of the mass incarceration knot. In my view, federal and state prosecutors were only able to become "more aggressive" in recent decades because the drug war and associated severe sentencing laws made their jobs much, much easier in various ways. The relative simplicity of securing drug convictions (and of threatening severe sanctions for those who fail to plea and cooperate) has made it much, much easier for prosecutors to turn more arrests for drugs and many other crimes into many more charges and convictions. (Tempered constitutional limitations on police, prosecutors and severe sentences through the Rehnquist Supreme Court era is also a part of this story, which I also think can and should be linked directly to the drug war.)
This chart has charging data for the federal system from 1982 to 2010, and it shows federal the number criminal cases commenced (i.e., when federal prosecutors brough charges) doubling from under 33,000 in 1982 to 67,000 in 2002. During those two decades, the number of drug cases commenced jumped from 4,200 in 1982 to over 19,000 in 2002. In my view, the drug war and severe federal sentences not only significantly accounted for why federal prosecutors had the ability/resources to bring 15,000 more drug cases in 2002 than in 1982, but it also significantly contributed to why federal prosecutors had the ability/resources to bring 15,000 more other federal criminal cases in 2002 compared to 1982. I think we would see somewhat similar dynamics playing out in many states during this period, and the federal data further shows that once prosecutors got really good at bringing lots of charges thanks to the help of the drug war, they became consistently adept at bringing lots more of other charges even as the number of drug prosecutions started to level off.
I make these points not to contend that "ending the drug war" (whatever that means) and/or repealing all mandatory minimums will alone "solve" the problem of mass incarceration. The counter-narrative remains very important in highlighting that modern incarceration levels in the US are a complicated matter requiring complicated solutions. But I am now growing concerned that, especially as the counter-narrative grows in significance, serious researchers and reform advocates may sometimes under-appreciate how critical the drug war and associated sentencing laws have been as the source of many troublesome elements in the growth of criminal justice expenditures and significance over the last four decades.
September 29, 2015 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (8)
Monday, September 28, 2015
"The Real Roots of ’70s Drug Laws"
The title of this post is the headline of this new notable New York York Times commentary by Michael Javen Fortner. Here are excerpts:
The number of black males killed by police officers continues to rise: Michael Brown, Eric Garner, John Crawford III, Ezell Ford, Akai Gurley, Tamir Rice. But many more still die at the hands of black neighbors instead of the police. Yet today we rarely ask politicians to speak their names or recognize their dignity and worth.
That’s because some consider talk of black-on-black violence a distraction. This is a natural outgrowth of the view that the over-policing of urban neighborhoods and the scourge of mass incarceration are all the result of a white-supremacist social order, the “New Jim Crow,” born of white backlash against the civil rights movement. But this is too convenient a narrative. It erases the crucial role that African-Americans themselves played in the development of the current criminal justice system.
Today’s disastrously punitive criminal justice system is actually rooted in the postwar social and economic demise of urban black communities. It is, in part, the unintended consequence of African-Americans’ own hardfought battle against the crime and violence inside their own communities. To ignore that history is to disregard the agency of black people and minimize their grievances, and to risk making the same mistake again.
The draconian Rockefeller drug laws, for example, the model for much of our current drug policies, were promoted and supported by an African-American leadership trying to save black lives. During the 1960s, concentrated poverty began to foster a host of social problems like drug addiction and crime that degraded the social and civic health of black neighborhoods. After the Harlem riots of 1964 (which erupted following the shooting of a 15-year-old black male by a white cop), polls showed that many African-Americans in New York City still considered crime a top problem facing blacks in the city, while few worried about civil rights and police brutality....
In 1969, the Manhattan branch of the N.A.A.C.P. issued an anticrime report that railed against the “reign of criminal terror” in Harlem. It warned that the “decent people of Harlem” had become the prey of “marauding hoodlums” and proposed that criminals, including muggers, pushers, vagrants and murderers, be subjected to steep criminal sentences. The civil rights organization reaffirmed its battle against police brutality, but added, “We favor the use of whatever force is necessary to stop a crime or to apprehend a criminal.” Vincent Baker, the author of the report, testified that “the silent majority in Harlem would welcome a police order to get tough.” He even advocated for a “stop and frisk” policy.
Harlem business leaders supported stricter law enforcement and harsher punishments for criminals. In 1973, nearly three-quarters of blacks and Puerto Ricans favored life sentences for drug pushers, and the Rev. Oberia Dempsey, a Harlem pastor, said: “Take the junkies off the streets and put ’em in camps,” and added, “we’ve got to end this terror and restore New York to decent people. Instead of fighting all the time for civil rights we should be fighting civil wrongs.”...
Four decades later, the decline in violent crime has created the space for a new reform discourse — a Black Lives Matter movement that is fighting for much needed change. But, as we rightly rethink punishment, it would be a mistake to ignore crime, both its origins and its effects. Yes, we need robust government action, including economic development, job training programs and renewal of aging housing stock, to reverse a half-century of social and economic decline. But, as the Harvard sociologist Robert J. Sampson notes, “Physical infrastructure and housing are crucial, but so, too, is the social infrastructure.” We need to bolster religious and civic organizations that cultivate stronger social ties, mitigate disorder and fight crime.
But longterm strategies can’t provide immediate relief from the daily horrors of urban crime. In the short run, we need the police. We need aggressive law enforcement methods that do not harass or brutalize the innocent. Ultimately, though, we can’t eliminate the propensity to overpolice and overimprison unless we curb the disorder and chaos that threaten and destroy urban black lives. As the history of the Rockefeller drug laws suggests, if crime rates climb to extraordinary levels, black citizens may once again value public safety more than civil liberty — and all the marching and shouting will have been for naught.
Sunday, September 27, 2015
VICE special prison report, "Fixing the System," to premire tonight on HBO
Tonight on HBO will be the first full premire screening of this special report, "Fixing the System," done in conjuntion with VICE. A partial preview is available here via YouTube, where this summary of the show also apprears:
VICE and HBO's upcoming special on criminal justice in the US: 'Fixing The System' will air September 27. Watch the full trailer [at this link].
In the first clip to go live from the special, we see the moment that President Obama meets the inmates and sits down with them for an in-depth conversation. Stay tuned for more prison coverage in the weeks to come, and watch the full-length special this Sunday on HBO.
The special offers a panoramic perspective on crime and punishment, and will follow all the key characters in America’s sprawling justice system, including prisoners and their families, members of the judiciary, and community reformers.
It will be hosted by VICE founder and correspondent, Shane Smith, and will also feature President Barack Obama's historic tour of El Reno Federal Correctional Institution in Oklahoma in July, where he met with inmates and prison officials.
"There's an emerging consensus in this country — on both the right and the left — that the way we treat criminal offenders is utterly broken and weakening our society in profound ways," Smith said, explaining the significance of the documentary.
In filming the special, President Obama became the first sitting President to visit a federal prison, signaling that criminal justice reform is a top priority in the final stretch of his presidency. At the medium-security prison for male offenders, Obama met with six inmates. He said the men's stories and the mistakes they made were not dissimilar to those the president made in his own youth, when he admittedly smoked pot and used cocaine.
America needs to distinguish between violent criminals and people "doing stupid things," Obama said, adding that many young people who end up in prison for nonviolent drug crimes grew up in environments where drug trafficking is prevalent. Giving those people decades-long sentences is what is contributing to the country's overcrowded prison system, and more resources should be directed to education, support, and rehabilitation, he said.
"I am really interested in the possibilities, the prospect of bipartisan legislation around the criminal justice system," the president told reporters on June 30. "And we've seen some really interesting leadership from some unlikely Republican legislators very sincerely concerned about making progress there."
The special is the latest in VICE's ongoing coverage of what has become a major civil rights and reform issue in the United States.
Saturday, September 26, 2015
"Chain Gang 2.0: If You Can’t Afford This GPS Ankle Bracelet, You Get Thrown In Jail"
The title of this post is the headline of this effective lengthy article from International Business Times discussing the intersection of modern technocorrections and modern criminal justice economics. Here are excerpts:
In Richland County, South Carolina, any person ordered to wear the ankle monitor as a condition of their bail must lease the bracelet from a private, for-profit company called Offender Management Services (OMS), which charges the offender $9.25 per day, or about $300 per month, plus a $179.50 set-up fee, according to county documents obtained through a Freedom of Information Act request made by International Business Times.
This arrangement reflects an opportunistic pitch by prison-oriented technology companies that has found favor with budget-minded government officials. In effect, companies like OMS have allowed municipalities like Richland County to save the costs of monitoring offenders by having the offenders pay themselves. The county wins, the company wins and people like Green find themselves confronting additional drains on their limited means.
In Richland County, if offenders don’t -- or simply can’t -- meet their payments, the company is obliged to contact police in order to "return [the offender] to the custody of the [Richland County] Detention Center,” a public facility. In other words, if you can't pay your electronic monitoring bill, you get sent back to jail.
“The electronic monitoring people are like old-fashioned bounty hunters,” says Jack Duncan, a public defender in Richland County, who says some of his clients have been locked up because they can’t make their payments. “It’s a newfangled debtors' prison. People are pleading guilty because it’s cheaper to be on probation than it is to be on electronic monitoring.”
Richland County is far from the only county in the United States that requires people to pay for their own tracking. In the last decade, “offender-funded” electronic monitoring programs -- as they’re known in the business -- have exploded in popularity.
States like Georgia, Arkansas, Colorado, Washington and Pennsylvania now contract with private, for-profit companies that require individuals to pay for their own tracking, according to analysis of county and state records by IBT. While there is no centralized database on how often states charge defendants for their tracking, from 2000 to 2014 the use of electronic monitoring as alternative to jail detention grew by 32 percent, according to figures provided by the Bureau of Justice Statistics in a 2014 annual survey of jails. In 2014, NPR conducted a survey that found that in "all states except Hawaii and the District of Columbia, there's a fee for the electronic monitoring." One industry report now pegs the number of people under electronic monitoring in the United States at 100,000, and that number likely will grow.
Companies routinely use lobbyists -- especially at state and local jurisdictions -- to establish relationships with officials from local corrections departments. The country’s largest private corrections company, GEO Group, spent $2.5 million in lobbying dollars in 2014, in part for its electronic monitoring efforts, according to company statements. In a nod to the high value of local relationships, GEO noted in company documents that “approximately $0.3 million was for lobbying at the Federal level and approximately $2.2 million was for lobbying at the state and local levels.”...
As government agencies look to decrease the financial burden of keeping so many people locked up, the electronic monitoring business appears poised for growth. SuperCom, an Israeli software provider, predicts the industry will balloon to $6 billion in annual revenues by 2018, largely from offender-funded programs.
Clearly, the business is good for businesses and cheaper on taxpayers. But is it fair to charge individuals for their own electronic tracking? Several lawyers interviewed for this story say absolutely not, even though it routinely happens. “The business model itself is blatantly illegal,” said Alec Karakatsanis, a lawyer and the co-founder of Equal Justice Under Law, a nonprofit civil rights organization. “If it were ever challenged in court, it would be struck down immediately.” Cherise Burdeen, executive director of the Pretrial Justice Institute, agreed, saying that “charging of offenders for their supervision conditions, whether that’s electronic monitoring -- all of that is unconstitutional and illegal.” Jack Duncan, the public defender, simply contends that electronic monitoring is “a legal monstrosity.”...
The electronic monitoring pitch is appealing to state and county governments. For example, Behavioral Inc., one of the largest electronic monitoring companies now owned by the private prison behemoth GEO Group, boasts in marketing materials that in Luzerne County, Pennsylvania, offender-funded electronic monitoring “has saved the county ... more than $40 million in jail bed costs by diverting offenders to community supervision.”
In some states, counties don’t only save money by contracting out the monitoring to private companies -- they actually make money from it. For instance, in Mountlake Terrace, a suburb north of Seattle, the city contracts with a small electronic monitoring company, which charges the the town $5.75 “per client.” However, the person placed on electronic monitoring actually pays the city $20 per day, resulting in a net revenue for the city of “approximately $50,000 to $60,000” per year, according to Mountlake Terrace county documents.
“We’re at peak incarceration as a society,” says Karakatsanis. “A lot of these companies are devoting extraordinary efforts to shift their business model and profit off of that growing surveillance and supervision.”...
Like many industries, businesses compete for contracts with a mix of lobbying, marketing and old-fashioned schmoozing. Companies routinely pitch their products' services at trade shows and conferences around the country. “You go to the National Association of Pretrial Services Conference, or the American Parole and Probation Association, and in the vendor room is all this technology for tracking,” says Cherise Burdeen. “They portray it as a great technology, and they tell all these county folks, “This doesn’t cost you anything; the defendant pays for it all!”
Friday, September 25, 2015
Depressing new 2005 released-prisoner recidivism data from BJS (with lots of spin possibiities)
I just received notice of this notable new Bureau of Justice Statistics report titled "Multistate Criminal History Patterns of Prisoners Released in 30 States." Though the BJS report and this BJS press release and this BJS summary are primarily focused on state prisoners released in 2005 who were thereafter arrested in another state, the biggest big-picture message is that for the BJS cohort of roughly 400,000 studied state prisoners released in 2005, nearly 80% were rearrested within the next five years. I cannot help but be depressed and saddened that only about one in five persons released from state prisons in 2005 was able to avoid significant contact with the criminal justice system over the subsequent five years.
Unsurprisingly, Bill Otis and other supporters and advocates of modern American incarceration levels have generally stressed these disconcerting recidivism data to assert crime is certain to increase if we enact reforms to significantly reduce our prison populations and let more folks out of prison sooner. But it bears remembering that these 2005 released prisoners served their time in state prisons and were released when the national prison population was continuing to grow and limited state resources were generally being devoted toward sending more people to prison and spending less money trying to keep people out of prison (or to aid reentry when prisoners were being released). These data thus also suggest what many reform-advocating criminologists have long said: the life disruptions and other impact of a prison term (especially when followed by poor reentry efforts) is itself criminogenic and thus serves to increase the likelihood an offender will commit crimes once released.
However one thinks about these new BJS data, it is depressingly obvious that the experience of prison for those prisoners released in 2005 seems to have done a very poor job of encouraging past offenders from becoming repeat offenders. I am cautiously hopeful that an array of prison and reentry reforms enacted by many states over the last decade will result in a much lower recidivism rate for state prisoners now being released in 2015. But only time (and lots of careful data analysis) will tell.
Former prosecutors' provocative pitch for preserving tough federal drug mandatory minimums
This new commentary authored by J. Douglas McCullough and Eric Evenson, two former North Carolina federal prosecutors, makes notable arguments against reform of federal drug sentencing statutes. The piece is headlined "Keep drug sentencing laws to keep communities safe," and here are excerpts:
The U.S. Senate is finalizing a criminal reform bill that will alter federal drug trafficking laws. Changes center on the mandatory minimum sentencing requirements which have been a key part of federal laws for more than 30 years. As former federal prosecutors, with more than 40 years combined experience, we have seen first-hand the benefits of mandatory minimum sentencing when properly used as a tool in the fight against drug traffickers. We urge Congress to leave this tool intact.
Many of our drug laws were passed by Congress in the 1980s, in response to a growing drug epidemic. These laws, which included mandatory sentences based on drug quantity and criminal history, were part of reform designed to rescue cities from the grip of drug traffickers and the danger it caused to our most vulnerable citizens. Congress correctly recognized that this goal could only be accomplished if sentences were tough for those controlling the distribution of drugs. Incentives were created for lower-level participants to provide evidence against higher-level traffickers in the form of a companion reward for testimony against other traffickers. Tough sentences were designed to remove the worst offenders from our communities; the opportunity to provide evidence in return for a lower sentence mitigated the effect of those sentences for those willing to help investigators get to the leaders of the drug organizations.
In our own district (which include cities, as well as rural areas) we saw crime rates decline, neighborhoods were revitalized, and violence was reduced. As we interviewed hundreds of drug traffickers who decided to provide testimony against higher-level traffickers, they revealed they were motivated to do so in large part by the significant sentences they faced.
Without tough sentencing standards for traffickers, we could not have obtained their testimony and obtained convictions against the large-scale traffickers. We saw our work as a “war on drug traffickers” with the goal of elimination of the traffickers from our communities. We sought cooperation and made appropriate recommendations for lower sentences for those who provided truthful testimony against major traffickers. We viewed the drug users as “victims” of drug traffickers. Drug trafficking produces two things: addicts, with ruined lives, and illegal profits for major drug traffickers.
The vast majority of drug traffickers — those we brought to federal court — were not drug users. They sold drugs because of greed. They were sentenced because of their large-scale distribution, and/or for the use of firearms as part of their activities. Those who argue that federal prisons are full of low-level drug users are simply wrong.
Drug trafficking spawns many other types of crime: gun violence, murder, theft, prostitution, and more. When a drug trafficker sets up his stronghold in a neighborhood, the whole community feels the effects. Many of the community’s most vulnerable citizens — those with limited means — can’t leave their crime-infested areas. They become trapped in the hellish world created by the drug traffickers....
Opponents of mandatory sentencing claim that these sentences are racist, unfair and expensive. That is not true. Mandatory sentencing has helped to rescue communities of color from drug traffickers; mandatory sentencing is equally applied to all drug traffickers, regardless of race, gender and economic status; and, the cost of long prison sentences is minor when compared to the lives saved and the communities rescued as the result of their imposition.
Instead of eliminating mandatory prison terms, why not institute meaningful reforms that will get to the root cause of drug trafficking? The majority of incarcerated drug traffickers we have interviewed were younger men who were the product of fatherless homes. The father is the first example of law and order for a young man. The breakdown of family has done more to lead to our drug epidemic than perhaps any other single cause.
Let’s focus on the causes of family breakdown, and the resulting failure to teach/instill good character in our young people. Public schools could offer character instruction. Religious institutions must be involved in teaching character and family/parental skills. For those serving long sentences, there should be an opportunity for rehabilitation, and to earn sentence reduction. Prisoners need to be taught work skills and character development that was largely overlooked in their earlier years.
Weakening our federal sentencing laws against drug trafficking, though frequently well intended, is naïve, counterproductive, and will adversely affect the communities to which drug traffickers will more quickly return.
Intriguingly, while making the case for preserving federal drug mandatory minimum statutes, these former prosecutors are also making the case for some of the back-end reforms currently being considered by Congress when they advocate for federal prisoners having an "opportunity for rehabilitation, and to earn sentence reduction." Also, I find it interesting that these authors assert that the breakdown of the family best accounts for drug problems and yet they do not acknowledge the role of the drug war in contributing to family disruptions.
Wednesday, September 23, 2015
Prez candidate Bernie Sanders: "We Must End For-Profit Prisons"
As noted in this prior post, last week Senator (and Presidential candidate) Bernie Sanders announced his commitment to ending use of private prison in the United States. This week he has followed up by authoring this Huffington Post commentary under the headline "We Must End For-Profit Prisons." Here are excerpts taken from the start and end of the piece along with its major headings in-between:
The United States is experiencing a major human tragedy. We have more people in jail than any other country on earth, including Communist China, an authoritarian country four times our size. The U.S. has less than five percent of the world's population, yet we incarcerate about a quarter of its prisoners -- some 2.2 million people.
There are many ways that we must go forward to address this tragedy. One of them is to end the existence of the private for-profit prison industry which now makes millions from the incarceration of Americans. These private prisons interfere with the administration of justice. And they're driving inmate populations skyward by corrupting the political process.
No one, in my view, should be allowed to profit from putting more people behind bars -- whether they're inmates in jail or immigrants held in detention centers. In fact, I believe that private prisons shouldn't be allowed to exist at all, which is why I've introduced legislation to eliminate them.
For-profit prisons harm minorities....
For-profit prisons abuse prisoners....
For-profit prisons victimize immigrants....
For-profit prisons profit from abuse and mistreatment....
Prison industry money is corrupting the political process....
For-profit prisons are influencing prison policy ......
... and immigration policy....
For-profit companies exploit prison families....
Young people are being mistreated and exploited....
I have introduced legislation that will put an end to for-profit prisons. My legislation will bar federal, state, and local governments from contracting with private companies to manage prisons, jails, or detention facilities. Regulators will be directed to prevent companies from charging unreasonable fees for services like banking and telecommunications.
My legislation also takes steps to reduce our bloated inmate population. It reinstates the federal parole system, which was abolished in the 1980s, so that officials can individually assess each prisoner's risk and chance for rehabilitation. It ends the immigrant detention quota, which requires officials to hold a minimum of 34,000 people captive at any given time. And it would end the detention of immigrant families, many of whom are currently held in privately-owned facilities in Texas and Pennsylvania.
It's wrong to profit from the imprisonment of human beings and the suffering of their friends and families. It's time to end this morally repugnant practice, and along with it, the era of mass incarceration.
I have long tended to have an agnotic view of the private prison industry, in part because I generally tend to favor free-market solutions to big problems and in part because I view the public prison industry to be chock full the big problems stressed by Sanders in this commentary. Nevertheless, Sanders makes a strong case that private prisons exacerbate public harms in incarceration nation. Moreover, it is now quite interesting and important that a significant rival to Hillary Clinton for the Democratic nomination for President is now making prison reform a big priority on the campaign trail.
Some prior related posts:
- What does new Prez candidate Bernie Sanders have to say about criminal justice reform?
- "Bernie Sanders Announces Bill to Abolish Private Prisons, Hints at Marijuana Policy Platform"
- Prez Candidate Bernie Sanders announces plan to restore federal parole and eliminate private prisons
September 23, 2015 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)
Tuesday, September 22, 2015
"No Hope: Re-Examining Lifetime Sentences for Juvenile Offenders"
The title of this post is the title of this notable new research report released today by Phillips Black, a nonprofit, public interest law office. The report, authored by John Mills, Anna Dorn, and Amelia Hritz, is timely with the Supreme Court due in three weeks to hear oral argument in Montgomery v. Louisiana concerning the retroactivity of its 2012 Miller juve LWOP ruling. In addition, I think this report (and related material assembled here) merits extra attention because it gives extra attention to racial realities that surround juve LWOP sentencing. Here is the report's executive summary:
In a handful of U.S. counties, teenagers are still being sentenced to a lifetime in prison with no chance of release. This harsh and increasingly isolated practice falls disproportionately on black and Hispanic youth and is a remnant of an earlier period of punitiveness based on an unfounded prediction of a new class of superpredators that never actually materialized.
While the use of this sentence has dramatically declined in recent years, it continues to be practiced in a relatively small number of jurisdictions. The Supreme Court now has the opportunity to declare juvenile life without parole a cruel and unusual punishment, far outside our standards of decency in the twenty-first century.
In Miller v. Alabama, the Court took the first step by forbidding mandatory sentences of life without parole for homicide offenses committed by juveniles ( JLWOP). The opinion, however, left open the question of whether the Eighth Amendment prohibits the imposition of life without parole upon juveniles entirely.
That question, the constitutionality of life without parole sentences for juvenile offenders, is being presented to the Court in two cases. In one case to be argued in October, the Court will consider whether its earlier rulings on this subject apply to past cases and not just cases going forward. A brief offered by the Charles Hamilton Institute for Race and Justice urges the Court to tackle the constitutional question of whether the punishment should stand at all. In another case, an inmate serving a JLWOP sentence has directly presented the question: “Does the Eighth Amendment prohibit sentencing a child to life without possibility of parole?”
This report examines the key evidence for answering the question of whether there is now a national consensus against juvenile life without parole. To make this assessment, the Court generally examines legislative enactments and actual sentencing practices. This report catalogs the rapid abandonment of JLWOP, both legislatively and in terms of actual use.
Although JLWOP dramatically expanded between 1992 and 1999—an era of hysteria over juvenile superpredators—since Miller states have rapidly abandoned JLWOP in law and practice.
Nine states have abolished JLWOP after Miller, bringing the current number of jurisdictions completely banning the sentence to fifteen. California and Florida, two of the most frequent users of the sentence, have dramatically limited the reach of JLWOP by restricting its application to a narrow set of circumstances. Moreover, North Carolina, Pennsylvania, and Washington have abolished JLWOP for a category of offenders. This pace of abolition far outstrips those that occurred in the years prior to the high Court’s rulings that the executions of juveniles and the intellectually disabled are unconstitutional. This report provides an in-depth analysis of state and county JLWOP sentencing practices. At the state level, just nine states account for over eighty percent of all JLWOP sentences. A single county, Philadelphia County, Pennsylvania, is responsible for nearly ten percent of all JLWOP sentences nationwide. Orleans Parish, Louisiana, has tenfold the number of JLWOP sentences as its population would suggest. Five counties account for more than one fifth of all JLWOP sentences. JLWOP, in practice, is isolated in a handful of outlier jurisdictions.
Finally, state sentencing practices also show marked racial disparities in JLWOP’s administration. Starting in 1992, the beginning of the superpredator era, a black juvenile offender would be twice as likely to receive a JLWOP sentence as his white counterpart. The disproportionate application of the punishment on juveniles of color is stark. All of Texas’s JLWOP sentences were imposed on persons of color. Pennsylvania has imposed it eighty percent of the time on persons of color.
There is now a growing consensus against JLWOP, calling into question its constitutionality. The policy’s suspect origins and disparate implementation require rigorous examination to determine whether it serves any legitimate penological purpose.
September 22, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1)