Monday, October 12, 2015

"The Reverse Mass Incarceration Act"

Mass_Inc_CoverThe 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.

October 12, 2015 in Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Sunday, October 11, 2015

"Number of Older Prisoners Grows Rapidly, Threatening to Drive Up Prison Health Costs"

StatelineAgingPrisonersLineGraphThe 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:

October 11, 2015 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (3)

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).

October 8, 2015 in Prisons and prisoners, Recommended reading, Scope of Imprisonment | Permalink | Comments (1)

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.

October 6, 2015 in Drug Offense Sentencing, Federal Sentencing Guidelines, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0)

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:

October 4, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

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:

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.

September 30, 2015 in Criminal justice in the Obama Administration, Procedure and Proof at Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

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.

September 28, 2015 in Drug Offense Sentencing, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Sunday, September 27, 2015

VICE special prison report, "Fixing the System," to premire tonight on HBO

Images (3)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.

September 27, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (7)

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!”

September 26, 2015 in Criminal Sentences Alternatives, Scope of Imprisonment, Technocorrections, Who Sentences? | Permalink | Comments (5)

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.

September 25, 2015 in National and State Crime Data, Offender Characteristics, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (8)

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.

September 25, 2015 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6)

Wednesday, September 23, 2015

Prez candidate Bernie Sanders: "We Must End For-Profit Prisons"

BernieAs 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.

Here's why:

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:

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"

Social2The 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)

Sunday, September 20, 2015

"Mass Incarceration Has Become the New Welfare"

The title of this post is headline of this interesting recent Atlantic commentary authored by Alex Lichenstein. It is, in part, a response to this major Altantic piece by Ta-Nehisi Coates, titled "The Black Family in the Age of Mass Incarceration," but it has lots more too it.  Here are excerpts:

When Ta-Nehisi Coates says that America’s bloated and enormously expensive dependence on imprisonment has created a “social service program … for a whole class of people,” he hits the nail on the head.  Perhaps correctional expenditures — police, courts, jails, prisons, halfway houses, parole offices, and all the rest — are better classified as “welfare” expenditures.

Mass incarceration is not just (or even mainly) a response to crime, but rather a perverse form of social spending that uses state power to address a host of social problems at the back end, from poverty to drug addiction to misbehavior in school.  These are problems that voters, taxpayers, and politicians — especially white voters, taxpayers, and politicians — seem unwilling to address in any other way.  And even as this spending exacts a toll on those it targets, it confers economic benefits on others, creating employment in white rural areas, an enormous government-sponsored market in prison supplies, and cheap labor for businesses.  This is what the historian Mike Davis once called “carceral keynesianism.”

What created this system? Coates suggests that 50 years ago policymakers and pundits refused to heed — or willfully misread — Daniel Patrick Moynihan’s dire warnings about the dissolution of the “Negro family” and his rather inchoate “case for national action.” Rather than redressing the problem of racism and “Negro” poverty, instead they turned to the expansion of a criminal justice system in the name of “law and order.”  Although Coates is justifiably hard on Moynihan — for his sexism and faith in patriarchy, for his subsequent reactionary politics, and most of all for lacking the courage of his convictions — like the historian Daniel Geary, he sees the Moynihan of 1965 as a closet supporter of affirmative action.

But, in characteristic fashion, he goes beyond this, asking readers to think in new ways about disturbing phenomena that they may take for granted.  Bringing together Moynihan’s concerns about black family structure with the cold fact of mass incarceration produces a striking conclusion: Mass incarceration actually causes crime.  In its long-term impact on the black family, mass incarceration has many of the disintegrative effects that Moynihan attributed to slavery.  It certainly has a similar multigenerational impact; the children of imprisoned people have a much higher chance of themselves being incarcerated as adults....

The terrible failures of America’s criminal-justice system can actually, from a certain perspective, be seen as policy successes.  The high rate of recidivism suggests that prisons fail to rehabilitate those who are locked up.  Yet if two-thirds of parolees return to prison, perhaps it is because the economy offers them no jobs and the welfare state excludes them as ex-felons.  Their return to the social services provided by incarceration, from this angle, makes a degree of sense.  And the point of Coates’s essay is that these people the economy has no room for and the state is unwilling to care for are, as they have always been, disproportionately of African descent.... 

Coates is right: To reform criminal justice requires “reforming the institutional structure, the communities, and the politics that surround it.”  Mustering the requisite political and social resolve to make those changes may seem impossible.  But consider this: How would the nation react if one out of every four white men between the ages of 20 and 35 spent time in prison? 

September 20, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Friday, September 18, 2015

"Cuba to release 3,522 prisoners on the eve of Pope Francis’ visit; why can’t Obama do the same?"

PopeFrancisIsis-v2The provocative question in the title of this post is the title of this notable San Francisco Bay View commentary. Here is how it starts:

Just prior to the visit of Pope Francis to Cuba on Sept. 19, the Cuban government has announced the release of 3,522 people being held in the country’s jails.  This humanitarian gesture will include prisoners who are over 60 years of age, younger than 20, those with chronic illnesses, women and those who are close to their release dates.

Why couldn’t Obama follow the Cuban example before Pope Francis continues on his tour to the U.S. on Sept. 22?  The United States, which has the dubious distinction of having the largest per capita prison population in the world, is overflowing with people who are primarily incarcerated for nonviolent offenses, on drug charges, or being mentally ill and poor.  Of the 2.5 million people in jails and prisons in this country, a vastly disproportionate number are people of color.

As the Obama presidency winds down, with nothing to lose, he could do the right thing by releasing an equal percentage of the prison population as the Cubans did.  Now that would be a humanitarian gesture that a war torn world could appreciate and a gesture of peace with justice to the visiting Pope.  It would amount to the freedom of tens of thousands of people.

Though I am suspect of any accounting of Cuba's incarceration levels (or its propaganda about recent releases), the latest estimate of its imprisoned population is around 57,500.  Consequently, its release of more than 3,500 prisoners amounts to freeing more than 6% of its incarcerated population.  A comparable effort by President Obama, if we focus on the entire local, state and federal incarcerated US population, would require the release of more than 135,000 persons imprisoned in the United States. Even if Prez Obama only released 6% of the current federal prison population, he would still need to grant over 12,000 federal offenders their freedom to make a gesture for the Pope comparable to what Cuba is claiming it has done.

I am not expecting to Prez Obama (or any state's Governor) to make a mass clemency gesture like this for the Pope's visit to the US.  But, as this new NPR story highlights, there are a number of criminal justice reform advocates who are hopeful that, at the very least, the Pope's visit will help kick-start federal criminal justice reform efforts. The NPR piece is headlined "Pope's U.S. Visit Spurs Catholic Support For Criminal Justice Reform," and it highlights that the "Pope will visit a prison in Pennsylvania next week and ... and faith leaders are using the opportunity to press Congress for action."

Some prior related posts on Pope Francis and criminal justice reform:

September 18, 2015 in Clemency and Pardons, Prisons and prisoners, Religion, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5)

Thursday, September 17, 2015

Lots of new data from BJS on prisoners and from USSC on federal sentencing

Sentencing and corrections data junkies have the opportunity for heavy dose of notable new data runs from two federal sources.  Both of these recently released reports have a number of interesting and important modern sentencing stories buried inside lots of notable new numbers:

From the Justice Department’s Bureau of Justice Statistics, "Prisoners in 2014"

From the US Sentencing Commission, "FY 2015 Third Quarterly Sentencing Data Report"

Importantly, the BJS prisoners document has data on only prison populations and thus does not include total incarcerated persons in the US because jail populations are not in the statistics.  With that important statistical reality in mind, here are some highlights identified by BJS concerning "Prisoners in 2014" that I found particularly noteworthy:

September 17, 2015 in Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Wednesday, September 16, 2015

"The Literal Cost of Solitary Confinement: Why are prisoners forced to pay fines when they are put in isolation?"

The title of this post is the headline of this notable New Republic piece, and here is an excerpt:

The United Nations has determined that solitary confinement may amount to torture: It can destroy the mind, sometimes the spirit.  And yet many jails and prisons around the country have decided that this punishment alone is not harsh enough.  It’s not widely known, but inmates who are determined to have committed a disciplinary infraction are regularly subjected to fines that can range into the hundreds of dollars on top of weeks or months-long solitary sentences.  Both the psychological damage caused by extreme isolation and the financial burden of the jail debt can hang over these people once they’re released, often making re-entry into society nearly impossible.

“When the system is built on punishment, you find every chance you get to damage people more,” said Glenn Martin, who spent six years in New York state prisons and founded the criminal justice reform group JustLeadershipUSA.  “Unfortunately, prisons in America have evolved into places that are devoid of values such as rehabilitation, fairness and human dignity.”

Prison officials in at least six state systems have the authority to impose fines in addition to solitary for a single rule violation.  Wyoming charges up to $50, Georgia up to $100, Oregon as much as to $200.  Fees in the states of New York, Kansas, and South Dakota range between $5 and $20.  (Wyoming, New York State, Georgia, and Kansas dismiss fines once an inmate is released or put them on hold in case the person returns. South Dakota said it doesn’t use solitary confinement, but the ACLU contends that the state’s isolation policies fit the definition.)...

While some of the state disciplinary fees may sound insignificant, small fines can pile up fast.  They pile up on people who often were homeless or unemployed before they were incarcerated and will face the same situations upon release.  The ACLU of Kansas said inmates could easily rack up thousands of dollars of debt just from disciplinary fines....

For many inmates and their families, disciplinary fines accumulate on top of court and attorney fees, court-ordered restitution, and child support.  And around the country, inmates may be obligated to pay for a seemingly infinite number of additional charges. Some of those costs: drug and alcohol abuse treatment; medical, dental, and psychiatric services; vocational training; toilet paper, laundry, and clothing; phone and video calls, food from the jail store, booking fees, drug testing, and fingerprinting.  In some jurisdictions, inmates pay “room and board” for the time they spend in jail awaiting trial.  Ninety percent of local jails collect revenue from incarcerated people. Those inmates pay an average of $1,259 per person per year to local facilities, according to a recent study by the Vera Institute of Justice.

Prisoners can even be charged for trying to kill themselves.  “I’ve seen it multiple times,” said Elisabeth Owen, the managing director of the Prisoners’ Justice League of Colorado.  “Someone hangs themselves and then they get a medical bill for thousands of dollars.”

September 16, 2015 in Fines, Restitution and Other Economic Sanctions, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

"Who Pays? The True Cost of Incarceration on Family"

Download (1)The title of this post is the title of this new report based on research by a number of public policy groups.  Here is the executive summary:

For decades, individuals, families, and communities—especially low-income people and communities of color—have faced destabilizing and detrimental impacts as a result of our nation’s unfair criminal justice policies. The repercussions of these policies extend far beyond sentencing and incarceration, affecting the employment, education, housing, and health of individuals and their families for years to come. A unique contribution to the body of research, the study explores the ways in which women support their incarcerated loved ones, often jeopardizing their own stability. Our nation can no longer afford the devastating financial and familial costs of incarceration if we truly want to foster communities that are healthy, sustainable, and just.

As a result of this research, recommendations are made for three key categories of critical reforms necessary to change the criminal justice system and to help stabilize and support vulnerable families, communities, and formerly incarcerated individuals: Restructuring and Reinvesting, Removing Barriers, and Restoring Opportunities.

Restructuring and Reinvesting: Following the lead of states like California, all states need to restructure their policies to reduce the number of people in jails and prisons and the sentences they serve. The money saved from reducing incarceration rates should be used instead to reinvest in services that work, such as substance abuse programs and stable housing, which have proven to reduce recidivism rates. Additionally, sentencing needs to shift focus to accountability, safety, and healing the people involved rather than punishing those convicted of crimes.

Removing Barriers: Upon release, formerly incarcerated individuals face significant barriers accessing critical resources like housing and employment that they need to survive and move forward. Many are denied public benefits like food stamps and most are unable to pursue training or education that would provide improved opportunities for the future. Families also suffer under these restrictions and risk losing support as a result of their loved one’s conviction. These barriers must be removed in order to help individuals have a chance at success, particularly the many substantial financial obligations that devastate individuals and their families. On the flip side, when incarcerated people maintain contact with their family members on the outside, their likelihood of successful reunification and reentry increases, and their chances of recidivating are reduced. For most families the cost of maintaining contact is too great to bear and must be lowered if families are to stay intact. Removing cost and other barriers to contact is essential.

Restoring Opportunities: Focusing energy on investing and supporting formerly incarcerated individuals, their families, and the communities from which they come can restore their opportunities for a brighter future and the ability to participate in society at large. Savings from criminal justice reforms should be combined with general budget allocations and invested in job training and subsidized employment services, for example, to provide the foundation necessary to help individuals and their families succeed prior to system involvement and upon reentry.

Our nation’s criminal justice system has dramatic impacts on the lives of individuals who are incarcerated and the lives of those they touch. These effects wreak financial, physical, and emotional havoc on women, families, and communities, undermining potential for a better life. The true costs of our criminal justice system are complex, deeply rooted, and demand a closer look at the multiple impacts on individuals and families. When these costs are understood and acknowledged, it becomes clear that the system — and society more broadly — must change.

September 16, 2015 in Collateral consequences, Prisons and prisoners, Race, Class, and Gender, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (1)

Tuesday, September 15, 2015

Two very interesting (and very different) long reads about mass incarceration and drug dealing

I recently noticed two new (and very different) long-form commentary pieces that both ought to be of interest to deep thinkers about crime and punishment. Both defy easy summarization, so I will just provide links and the extended headline of the pieces and encourage readers in the comments to highlight important themes in either or both:

September 15, 2015 in Drug Offense Sentencing, Offense Characteristics, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Monday, September 14, 2015

Montgomery wards: gearing up for SCOTUS juve LWOP retroactivity case

In four weeks, the US Supreme Court will hear oral argument in Montgomery v. Louisiana.  Here, via this SCOTUSblog posting and this official SCOTUS page, are the questions that the Justices will be considering in Montgomery:

Do we have jurisdiction to decide whether the Supreme Court of Louisiana correctly refused to give retroactive effect in this case to our decision in Miller v. Alabama, 567 U.S. ____ (2012)?

Whether Miller v. Alabama adopts a new substantive rule that applies retroactively on collateral review to people condemned as juveniles to die in prison.

Because both of these questions engage many interesting, important and dynamic issues, I am planning to do a (lengthy?) series of posts about this case and the various arguments that have been presented to the Justices via amicus briefs (including one I filed thanks to the efforts of good folks at the Columbus offices of Jones Day).  As the title of this post reveals, I have decided to use "Montgomery wards" as the cheeky title for this coming series of posts.

Notably, as this new SCOTUSblog posting highlights, it would now appear that the Justices share my sense that the Montgomery case raises many interesting, important and dynamic issues because they have now scheduled additional argument time for the case.  Here are the basics via Lyle Denniston's SCOTUSblog report:

The Supreme Court on Monday added fifteen minutes to the argument schedule for its hearing October 13 on Montgomery v. Louisiana, a case that could decide which juveniles convicted of murder can take advantage of a 2012 decision limiting sentences of life without parole for minors.  The added time will allow a Court-appointed attorney to argue a question about the Court’s authority to actually rule on the legal issue in the case.

In March, the Justices agreed to hear the appeal of Henry Montgomery of Baton Rouge, who is seeking retroactive application of the Court’s decision in Miller v. Alabama, which had all but eliminated states’ power to sentence youths to life without parole, as punishment for committing a murder when they were under the age of eighteen.  In taking on the case, however, the Court also added the question whether it has jurisdiction to review and rule on the Louisiana Supreme Court decision refusing to apply the Miller precedent to cases that had become final before June 25, 2012, when Miller was decided.   Louisiana had raised that issue in a filing in an earlier case on the juvenile sentencing question. 

Instead of the usual one hour of argument time, the Court in the Montgomery case will hear seventy-five minutes.  The time will be divided this way: the Court-appointed attorney, Richard Bernstein of Washington, D.C., will have fifteen minutes to argue against the Court’s jurisdiction, Montgomery’s attorney will have fifteen minutes to argue both points, an attorney from the office of the U.S. Solicitor General will have fifteen minutes to argue both issues, and a lawyer for the state of Louisiana will have thirty minutes of time to argue both questions.  The order also said that Bernstein and Montgomery’s lawyer will be allowed to save time for rebuttal.

The federal government, in a brief filed by the Solicitor General, supported Montgomery’s plea to apply Miller retroactively and argued that the Court does have jurisdiction to decide that question.  The brief noted that there are twenty-seven inmates in federal prisons whose sentences could be affected by the retroactivity issue.

September 14, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Sunday, September 13, 2015

Alabama Chief Justice laments mandatory LWOP drug sentence for 76-year-old offender

As reported in this AP article, "Alabama Chief Justice Roy Moore says the case of a 76-year-man sentenced to life without parole for a drug offense shows the need to change sentencing laws."  Here is more about the notable separate opinion authored by the top jurist of the the Cotton State:

Moore issued a special writing Friday as the Supreme Court refused to overturn the case of Lee Carroll Brooker. "I believe Brooker's sentence is excessive and unjustified," Moore wrote.

Brooker lived with his son in Houston County, and court documents show police found a marijuana-growing operation there during a search in 2013. The elderly man was convicted of drug trafficking last year, and a judge sentenced him to life without parole because of past robbery convictions in Florida. His son was also convicted. Moore writes that the life-without-parole sentence for a non-violent drug offense shows "grave flaws" in Alabama's sentencing system.

"A trial court should have the discretion to impose a less severe sentence than life imprisonment without the possibility of parole," Moore added. "I urge the legislature to revisit that statutory sentencing scheme to determine whether it serves an appropriate purpose."

The full opinion by Chief Justice Moore is available at this link.

September 13, 2015 in Drug Offense Sentencing, Examples of "over-punishment", Offender Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

Friday, September 11, 2015

"Dignity and the Eighth Amendment: A New Approach to Challenging Solitary Confinement "

The title of this post is the headline of this notable new Issue Brief authored by Laura Rovner released today by the American Constitution Society for Law and Policy. Here are excerpts from the start of the brief (with footnotes omitted:  

Solitary confinement irreparably harms people.  For those who have endured long-term isolation, it is not an overstatement to describe it as a living death: “Time descends in your cell like the lid of a coffin in which you lie and watch it as it slowly closes over you. When you neither move nor think in your cell, you are awash in pure nothingness. . . . Solitary confinement in prison can alter the ontological makeup of a stone.”  U.S. Supreme Court Justice Samuel Miller, who was a physician as well as a lawyer, recognized the harms of solitary confinement as far back as 1890....

[I]t was more than a century ago, as Justice Kennedy recently reminded us, that the Supreme Court first recognized the harm solitary confinement causes and nearly declared it unconstitutional.  Yet, despite this unequivocal condemnation of solitary confinement by the nation’s highest court, over the course of the century that followed — and especially the last three decades — most states and the federal government have significantly increased their use of penal isolation.  Today, conservative estimates place the number of people in solitary confinement at over 100,000.  And they are there largely with the blessing of the federal courts.

While the Eighth Amendment’s prohibition against cruel and unusual punishment appears to provide mechanisms to challenge the use of long-term solitary confinement, the way the federal courts have interpreted the amendment in the past two decades has rendered judicial review virtually meaningless, resulting in an unprecedented number of people being held in conditions of extreme solitary confinement.  Part I of this Issue Brief examines the nature of solitary confinement and how it developed in the U.S.  Part II discusses (in broad outlines) the current jurisprudence of Eighth Amendment solitary confinement litigation.  Finally, Part III offers some reasons for optimism going forward and one promising path to achieving meaningful reforms through constitutional challenges to the practice.

September 11, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (7)

Thursday, September 10, 2015

Notable collective makes plans for "smart on crime" criminal code reform in Ohio

My local Columbus Dispatch has this new Ohio criminal justice reform story headlined, "Statehouse leaders push for shorter prison sentences, reducing prison population."  Here are the (still a bit fuzzy) details concerning what is afoot in the Buckeye state:

Ohio officials are undertaking a sweeping reform of the state’s criminal justice code, potentially resulting in shorter prison sentences and fewer people going to prison for non-violent drug crimes.

An unusual bipartisan coalition, including top legislative leaders, tax reformer Grover Norquist, an American Civil Liberties Union official, and Piper Kerman, author of Orange is the New Black: My Year in a Women's Prison, announced plans today to overhaul Ohio’s lengthy and cumbersome criminal code top-to-bottom.

“No one is here to say today that criminals should not be punished. We are here to say that not all crimes or criminals are created equal,” Senate President Keith Faber, R-Celina, said at a Statehouse press conference. “This is not about being hard or soft on crime. It’s about being smart on crime.”

No specifics were announced. Exactly how the criminal code will be overhauled will be up to the 24-member Ohio Criminal Justice Recodification Committee appointed by the legislature. Faber said he told the committee to “swing for the fences” when it comes to big picture reform ideas. But he balked when asked about two specific areas: revising parole standards for current inmates and marijuana legalization.

The consensus of speakers was that the reform goals are reducing the prison population by incarcerating fewer non-violent drug offenders and people with mental health issues, eliminating mandatory, flat sentences, and removing barriers for ex-offenders to return to society....

Speaker after speaker criticized the burdensome incarceration rate in Ohio and the U.S., the highest in the world. “Locking people in cages is extreme and dehumanizing,” said Allison Holcomb, head of the ACLU’s national Smart Justice program. “This is the top priority for us.”

Norquist, president of the conservative Americans for Tax Reform, said he views reform from more of an economic standpoint. “We have too many people in prison and not the right people in prison,” he said. That is costing taxpayers far too much, he said.

Kerman, now living in Columbus, came to public attention as author of her real-life story that led to the Netflix series, Orange is the New Black. “I’m fairly confident I’m the only person up here with a felony,” Kerman said opening her remarks. Following her release from a Connecticut prison on a drug-related money laundering charge, she became an advocate for sentencing and parole reform. She is teaching writing to inmates at two Ohio prisons.

Faber said the recodification committee, which is chaired by Auglaize County Common Pleas Judge Fred Pepple, does not have a specific deadline for completing its work. The final recommendations must be passed by the General Assembly.

September 10, 2015 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)

"No Reason to Blame Liberals (or, the Unbearable Lightness of Perversity Arguments); Review of the First Civil Right: How Liberals Built Prison America, by Naomi Murakawa"

The title of this post is the title of this new review by Margo Schlanger available via SSRN discussing a provocative book about the American political left's role in mass incarceration.  Here is the abstract:

This is a review of The First Civil Right: How Liberals Built Prison America, by political scientist Naomi Murakawa.  Murakawa takes as her target a conventional wisdom that explains the rise of mass incarceration as a victory of Republican law-and-order over Democratic civil rights.  Rather, she argues, starting right in her subtitle, “liberals built prison America.”  It was liberals, she claims, who “established a law-and-order mandate: build a better carceral state, one strong enough to control racial violence in the streets and regimented enough to control racial bias in criminal justice administration.”  Her major point along these lines is that the liberal preoccupation with using fair, non-racist procedures has contributed importantly to the growth of the carceral state, taming reform urges, entrenching the punitive regime.  This argument sounds in perversity — on Murakawa’s account, liberalism’s attempt to improve racial justice using procedural tools not only fails, it is counter-productive, entrenching and worsening the system’s inequities.

The review critiques Murakawa's focus on federal crime policy as missing the more important state and local dynamics.  In addition, it argues that Murakawa's perversity argument is essentially aesthetic — that she adduces only post-hoc/propter-hoc kind of evidence that the liberal proceduralism she highlights has accompanied the ballooning of the incarcerated population.  That is far from enough to convict generations of liberals — many though not all of whom decried overincarceration, as well as the unfair procedures that accompanied it — of the charge that they “built prison America.”

Prior related posts:

September 10, 2015 in Elections and sentencing issues in political debates, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

Wednesday, September 09, 2015

Noting federal prison reforms possible without statutory changes

A helpful reader alerted me to this notable Forbes article by Walter Pavlo which highlights ways the federal prison population could be lowered without waiting for whatever Congress might (or still might not) end up doing to reform federal sentencing statutes.  The piece is headlined "Prison Reform Is All The Rage, But A Real Opportunity For Change Might Be Missed," and here are excerpts:

Many past U.S. Congress’s have drafted criminal reform bills, only to have them lay dormant in committee.  Traditionally, the press releases and sound-bites have only provided false hope to those serving time.  The SAFE Act is the most recent and has received some positive press but lacks significant sponsorship in Congress.  Then there’s the Smarter Sentencing Act and the Second Chance Reauthorization Act that has recently lost some momentum.  There are others, but none worth mentioning....

There are many ways to use existing legislation and policies to reduce populations that need more focus and advocacy.  First, we need to allow more old and sick inmates to go home under compassionate release programs by crediting “earned” good conduct time towards program eligibility.  Second, rather than building new prisons, the federal government should divert the funding to build out of the Residential Reentry Centers (RRC) infrastructure and allow for more direct community placement designations, which was the true intent of the Second Chance Act under 18 USC 3624.  Next, early deportation options should also be explored for those who are in the U.S. illegally.

We have a problem of aging, sick inmates in the federal prison system.  There are currently six (6) major medical facilities that offer treatments for inmates for various ailments ranging from dialysis to chemotherapy.  It’s expensive with some estimates being as high as $57,000 per year per inmate.  The recidivism studies show far lower rates of recidivism for elderly offenders.

Halfway house, RRCs, offer a chance for inmates to serve the remainder of their time in the community working in a regular job, integrating with their family and learning skills. According to [Jack] Donson [a retired BOP employee], the BOP has the statutory authority to place offenders directly in halfway house at any time because the Federal Courts have made clear that RRC’s are penal or correctional facilities within the meaning of the applicable statues.  “Having a person in a community correctional treatment program including a job and integrating with their family is far better than any program the BOP could ever offer and inmate.”  So an RRC is basically a prison where inmates serve their debt to society … except that it would be MORE beneficial to most everyone....

While we wait for the next prison reform bill, let’s hope it is a comprehensive Omnibus Crime bill with both front end and back end (retroactive) measures that can be quickly implemented with a simultaneous build out of the RRC infrastructure. Congressmen and senators would do us all a service by putting pressure on the Department of Justice to use the existing policies and laws to begin changing prisons now.

September 9, 2015 in Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

Monday, September 07, 2015

Lots of interesting criminal-justice reading for the long weekend

As I enjoy the tail end of a lovely holiday weekend, I will seek to honor laborers by here labroing to assemble links to a number of recent criminal-justice articles and commentaries from various media outlets.  Each of these pieces could merit its own separate post, but I am content today to throw them all together (in no particular order) with a hope that readers might flag whichever of the pieces they think justify special attention:

September 7, 2015 in Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

Thursday, September 03, 2015

Julie Stewart of FAMM goes hard after Bill Otis for being "proven wrong time and time again"

Regular readers know I often note and express respect for the work and writings of both former federal prosecutor Bill Otis, who now writes most regularly at Crime & Consequences, and Julie Stewart, who is the President and Founder of Families Against Mandatory Minimums.   Today I must note and express amazement at the concerted efforts of one of these two taking on the other: Julie Stewart has this notable new Reason commentary headlined "The Former Prosecutor Who Consistently Gets Criminal Justice Reform Wrong: Former prosecutor Bill Otis has been mistaken over and over again when advising legislators against reducing drug sentences."  Here are excerpts mostly from the start and end of the piece:

No one expects our elected representatives to be experts in every area of public policy. At the same time, we have every right to expect that our representatives will consult policy analysts and experts who know what they're talking about, not someone who has been proven wrong time and time again. In the world of criminal justice, that someone is former federal prosecutor and Georgetown Law adjunct William Otis.

Over the past two decades, Bill Otis has become the Paul Ehrlich of criminal sentencing reform.  He is always certain in his convictions and nearly always wrong.  Moreover, like Ehrlich, Otis likes to scare the public with predictions of certain and impending doom, and he is immune to feelings of embarrassment or humiliation despite being proven spectacularly wrong over and over again....

[W]hereas Ehrlich saw overpopulation as the culprit, Otis thinks shortening sentences for nonviolent drug offenders will be America's undoing.  Indeed, every time Congress or the U.S. Sentencing Commission has considered even mild sentence reductions over the past two decades, Otis has gone full Chicken Little.  He has been wrong every time....

The nationwide drop in crime and prison crowding should be celebrated.  Less violent crime means fewer murder victims, fewer robbery victims, and fewer assault victims. Smaller prison populations means savings for taxpayers and more money to spend on what actually does reduce crime — community policing and supervision practices like "short, swift, and certain."  None of these gratifying results would have been possible if Otis's theory were correct — or if any lawmakers outside the Beltway had heard of Otis and took his views seriously.  While Otis has been consistently wrong, thankfully lawmakers have ignored him....

Committed to his prison-is-always-the-answer ideology, Otis derided the [Fair Sentencing Act], saying it should be called the "Crack Dealers Relief Act."  When the U.S. Sentencing Commission lowered the crack guideline and made it retroactive in accord with the FSA, Otis predicted it would lead to an increase in crime....  On his blog, Otis cranked up the fear machine. He predicted "misery" when "thousands of crack dealers" would be "put back on the street prematurely" to terrorize their communities.

Fortunately for those of us concerned about public safety, Otis was wrong again — amazingly wrong.  Since passage of the FSA, the crime rate, the prison population, and crack usage are all down!  It bears repeating.  Otis said the changes would cause "misery" and "inevitably lead to more crime."  Instead, while thousands of offenders have received fairer sentences, the crime rate has fallen, crack use is down, and taxpayers have saved millions from being wasted on unnecessary prison costs....

Otis is impervious to facts and evidence.  He will quote Professor Steven Levitt's finding that greater reliance on incarceration helped reduce crime in the 1990s and then ignore Levitt's later conclusion that the country has gone too far and that prisons should reduce their populations by one-third.  Otis will say, as he does in National Review, that the movement for sentencing reform "is strictly interest-group — and billionaire — driven, inside-the-Beltway," which would be fine if you did not already know that the reform movement began in the states and is being promoted in Washington, DC by insiders like Senators Ted Cruz (R-Tx.), Rand Paul (R-Ky.), and Mike Lee (R-Utah).

Otis's amazing record of wrongness would be interesting and perhaps even funny if he, like fellow fear-peddler Paul Ehrlich, were exiled from the world of rational public policy making.  But media reports have suggested that some members of Congress actually listen to Otis.  If that's true, then we really do have a good reason to be scared.

Yowsa.   Because I consider both Julie Stewart and Bill Otis to be personal friends, I am going to be trying hard to stay out of this sentencing sparring.  But I am also going to try to report fairly on any rounds of this fight, and thus will be quick to post any response that Bill Otis provides in his own defense in the days ahead. 

UPDATE:  Bill Otis has a response up at Crime & Consequences: Are Sentencing "Reformers" Getting Worried?.  Here is a snippet from Bill's introduction to his brief substantive refutation of points made by Julie Stewart:

I think it unbecoming and unwise to get caught up in this sort of thing.  If you hold a controversial position, you can expect some heat.  And if you spend all your time answering your critics, you'll never do anything else.  You'll certainly abandon any hope of making your own points. Accordingly, with the exceptions noted below, I am not going to engage with Ms. Stewart. (If she seeks a live debate with me, that would be another matter).

I'm quite sure she is sincere. But, for reasons stated in hundreds of things I have said on this blog and elsewhere, I believe she is in error.

September 3, 2015 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, National and State Crime Data, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (22)

"The simple truth about why mass incarceration happened"

The title of this post is the headline of this effective recent Vox piece by German Lopez. Here are excerpts:

How could US politicians possibly think it was a good idea to incarcerate millions of Americans starting in the 1980s, creating the system of mass incarceration we have today?

It's a question that gets tossed around a lot nowadays, with varied answers — from claims it was an attempt to control the population to arguments that private prisons created a profit motive for locking up millions of Americans.

But there's a much simpler explanation: The public wanted mass incarceration. It's easy to forget now, but the politics of crime were huge in the 1990s.  According to data from Gallup, never before or after the nineties have so many Americans said that crime is the most important problem facing the country today.

Americans had a very good reason for these concerns.  From the late 1960s to the early 1990s, crime was unusually high.  The country was still coming off what was perceived as a crack cocaine epidemic, in which the drug ran rampant across urban streets and fueled deadly gang violence.  So Americans, by and large, demanded their lawmakers do something — and politicians reacted with mass incarceration and other tough-on-crime policies.

It's very easy in hindsight to consider this an overreaction — now that we know crime began its decades-long decline in the early 1990s, and now that research has shown that mass incarceration only partly contributed to this decline.  But people didn't know that at the time. They didn't know crime was about to begin its long-term drop, and the research on mass incarceration was far from conclusive. Politicians thought crime would get worse, not better.

In fact, there were warnings at the time that things were on the verge of getting worse. One prominent concern in the 1990s — based on what turned out to be very bad social science research — suggested that there was an incoming epidemic of superpredators, violent youth who would rob and kill people....

In this context, it was expected that all politicians — liberal and conservative — take a tough stance on crime.  That's partly why liberals like Hillary Clinton, Joe Biden, and Bernie Sanders supported the 1994 crime law that contributed to mass incarceration.  It's why dueling candidates for governor in the liberal state of New York campaigned on who could be tougher on crime.  And it's why practically every state passed tough-on-crime policies throughout the 1980s and 1990s....

Popular demand for tough-on-crime laws in the past doesn't in any way excuse the devastation lawmakers inflicted on millions of people through mass incarceration and other policies.  But based on voters' concerns in the 1990s, if a politician didn't contribute to the problem back then, he or she may not be prominent enough to run for president today.  That's how America ended up with mass incarceration — and the seemingly contradictory Democratic presidential candidates for 2016.

September 3, 2015 in Elections and sentencing issues in political debates, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6)

Wednesday, September 02, 2015

Prison administrators contribute to new report on solitary confinement

AscatanAs detailed in this press release, the Association of State Correctional Administrators has joined with researchers at Yale to produce an important new report about solitary confinement. Here are the basics via the press release: 

Prolonged isolation of individuals in jails and prisons is a grave problem in the United States. The insistence on change comes not only from legislators across the political spectrum, judges, and a host of private sector voices, but also from the directors of correctional systems at both state and federal levels.  Even as a national outcry has arisen about isolation, relatively little information exists about the actual number of people held in restrictive housing, the policies determining their placement, and whether and how conditions vary in different jurisdictions.  Indeed, the figures cited on the number of people held in isolation vary from 25,000 to more than 80,000.  But that information comes from a decade and more ago.

To rectify the absence of data and to pave the way for changes, the Association of State Correctional Administrators (ASCA) joined with the Arthur Liman Public Interest Program at Yale Law School to develop a national database of the policies and practices on what correctional officials call “restricted housing” and is frequently referred in the media as “solitary confinement.”  ASCA is the only national organization of persons directly responsible for the administration of correctional systems and includes the heads of each state’s corrections agencies, as well as the Federal Bureau of Prisons, the District of Columbia, New York City, Philadelphia and Los Angeles County.

The result is the new report Time-in-Cell: The Liman-ASCA 2014 National Survey of Administrative Segregation in Prison, which is the first to provide updated information, as of the fall of 2014, on both the numbers and the conditions in restrictive housing nationwide.  This Report represents the commitments of correctional leaders to make such changes.  But without a baseline, it is not possible to know the impact of the many efforts underway. Time-in-Cell provides one way to measure and to learn whether the hoped-for changes are taking place, to reduce and to eliminate the isolation of prisoners, so as to enable prisoners and staff to live and work in safe environments, respectful of human dignity. 

This important report, which runs nearly 100 pages, is available in full at this link. Some of its findings and the broaded policy discourse now surrounding solitary confinement are effectively covered in new stories via the New York Times and the Wall Street Journal here and here, respectively.

September 2, 2015 in Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (3)

Prison realities and reform insights from "Mr. Smith Goes to Prison"

51Qm5bXG9NL._SY344_BO1,204,203,200_Politico magazine has this fascinating excerpt from a new book titled "Mr. Smith Goes to Prison: What My Year Behind Bars Taught Me About America’s Prison Crisis."  The book is authored by Jeff Smith, a former Missouri state senator, who spent a year in federal prison for violating federal election laws, and parts of the excerpt read a bit like the Y-chromisone version of Orange is the New Black. But, as these passage highlight, it appears the book covers much more than just the fish-out-of-water elements of prison life for a white-collar offender:

Long story short: Five years after losing the election, I pleaded guilty to two counts of obstruction of justice for impeding the federal investigation Carnahan had initiated. But I requested an unorthodox sentence: two years of home confinement and full-time community service during which I would be allowed to leave my house only to teach civics and coach basketball at a St. Louis charter school I’d co-founded a decade earlier. It would’ve saved taxpayers about $175,000: two years of a teacher’s salary, plus the cost of housing a federal prisoner, since I would’ve paid for my electronic monitoring. More than 300 people, including a bipartisan group of the state’s top elected officials, wrote public letters to the to the judge requesting clemency and arguing that — as the prison counselor in Kentucky would later note — locking me up would be a waste. But the Feds portrayed me as the mastermind of a “textbook case of political corruption” and pushed for a harsh sentence at the top of the federal guidelines. The judge gave me a year and a day in federal prison.

Six months later, I was adrift in a sea of sharks — a professor-turned-politician-turned-felon forced to learn prison patois and the politics of survival. Among other areas, I’d studied and taught criminal justice policy as a political scientist for a decade. But in prison I would be the student, not the teacher.

This is the story of what I learned — about my fellow prisoners, the guards and administrators, and the system in which we operated. It is a cautionary tale of friendship and betrayal. It is a story of how politics prepared me — and didn’t — for prison, and how prison prepared me for life. But more broadly, it is a scathing indictment of a system that teaches prisoners to be better criminals instead of better citizens, and a prescription for how America can begin to decarcerate and harness the untapped potential of 2.2 million incarcerated people through programs that will transform offenders’ lives, infuse our economy with entrepreneurial energy, increase public safety and save taxpayers billions by slashing sky-high recidivism rates....

Prisons have been called “training grounds for rapists,” and according to one estimate based on two decades of surveys, nearly 300,000 rapes occur annually in U.S. prisons. The most recent Justice Department data concluded that from 2003 to 2012, nearly 2 million inmates were sexually assaulted, costing society as much as $51.9 billion annually, including the costs of victims’ compensation and increased recidivism. Advocates hoped that passage of the 2003 Prison Rape Elimination Act (PREA), which sought to prevent, uncover and address sexual assault, would help, but many large states have refused to comply with it (with little consequence). In 2011, a typical prisoner’s likelihood of being raped was roughly 30 times higher than that of a given woman on the outside, suggesting a depressingly steady trendline despite PREA’s passage. And since reporting assaults will only bring more trouble from fellow prisoners and COs alike, most victims remain quiet, rendering official prison data unreliably low.

Exacerbating this is a dearth of post-rape psychological treatment during incarceration and reentry, which increases the likelihood that victims will suffer from PTSD as well as their odds of recidivism — especially for crimes involving sexual assault. Tragically, prison rape often causes compensatory aggression as untreated victims commit rapes upon release to reclaim their manhood in the same way they imagine it was lost. This vicious cycle by which (frequently) nonviolent offenders become violent is the opposite of the duty that “correctional institutions” are meant to perform....

I spent less than a year in prison. In the words of my first cellie, I had less time in prison than he had done on the prison toilet. I had every advantage upon re-entry: I was a white guy with a Ph.D. from a top school, community and family support, and financial savings. Yet getting a decent job was a struggle. I often think about the re-entry of the guys I was locked up. Most had a GED earned in prison; some hadn’t had a visit in years, or even a decade, and had no one to call on the phone; few had savings to fall back on. They would be coming home to a world in which four of five landlords and nine of 10 employers run criminal background checks on prospective tenants and employees to screen out felons, in which many are not allowed to vote or use food stamps and in which they must immediately find money to pay for a halfway house room and urinalysis tests even as they cannot afford clothes for a job interview.

Mass incarceration is driven in large part by sky-high recidivism rates, and when one contemplates the myriad obstacles to successful prisoner re-entry, one grasps that the system is not, as many claim, broken at all; rather, it appears to be a well-oiled machine, keeping millions of people out of our economic mainstream. And only a shift in our cultural mindset — a realization that people who are incarcerated could, to paraphrase President Obama after his recent prison visit to a federal prison, be our brothers, our sons, our mothers, or ourselves — will change that.

September 2, 2015 in Offender Characteristics, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, White-collar sentencing | Permalink | Comments (1)

Tuesday, September 01, 2015

California settles prisoner lawsuit by agreeing to limit use of solitary confinement

As reported in this local AP piece , headlined "California to end unlimited isolation for most gang leaders," a lawsuit concerning California's use of solitary confinement culminated today in a significant settlement. Here are the details:

California agreed Tuesday to end its unlimited isolation of imprisoned gang leaders, restricting a practice that once kept hundreds of inmates in notorious segregation units for a decade or longer.

The state is agreeing to segregate only inmates who commit new crimes behind bars and will no longer lock gang members in soundproofed, windowless cells solely to keep them from directing illegal activities by gang members.  "It will move California more into the mainstream of what other states are doing while still allowing us the ability to deal with people who are presenting problems within our system, but do so in a way where we rely less on the use of segregation," Corrections and Rehabilitation Secretary Jeffrey Beard told The Associated Press.

The conditions triggered intermittent hunger strikes by tens of thousands of inmates throughout the prison system in recent years.  Years-long segregation also drew criticism this summer from President Barack Obama and U.S. Supreme Court Justice Anthony Kennedy.

"I think there is a deepening movement away from solitary confinement in the country and I think this settlement will be a spur to that movement," Jules Lobel, the inmates' lead attorney and president of the Center for Constitutional Rights, said in a telephone interview.

The lawsuit was initially filed in 2009 by two killers serving time in the security housing unit at Pelican Bay.  By 2012, Todd Ashker and Danny Troxell were among 78 prisoners confined in Pelican Bay's isolation unit for more than 20 years, though Troxell has since been moved to another prison. More than 500 had been in the unit for more than 10 years, though recent policy changes reduced that to 62 inmates isolated for a decade or longer as of late July.

The suit contended that isolating inmates in 80-square-foot cells for all but about 90 minutes each day amounts to cruel and unusual punishment.  About half the nearly 3,000 inmates held in such units are in solitary confinement.  Inmates have no physical contact with visitors and are allowed only limited reading materials and communications with the outside world.

The settlement will limit how long inmates can spend in isolation, while creating restrictive custody units for inmates who refuse to participate in rehabilitation programs or keep breaking prison rules....  Lobel said the new units, by giving high-security inmates more personal contact and privileges, should be an example to other states to move away from isolation policies that he said have proven counterproductive in California....

Nichol Gomez, a spokeswoman for the union representing most prison guards, said it was disappointing that "the people that actually have to do the work" weren't involved in the negotiations, so she couldn't immediately comment.

Beard said he will work to ease the unions' previously expressed concerns that guards could face additional danger. He said the settlement expands on recent changes that have reduced the number of segregated inmates statewide from 4,153 in January 2012 to 2,858 currently.

Until recently, gang members could serve unlimited time in isolation.  Under the settlement, they and other inmates can be segregated for up to five years for crimes committed in prison, though gang members can receive another two years in segregation.

September 1, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Monday, August 31, 2015

"The Just-Barely-Sustainable California Prisoners’ Rights Ecosystem"

The title of this post is the title of this interesting new paper by Margo Schlanger now available via SSRN. Here is the abstract:

Nationwide, litigation currently plays a far smaller role as a corrections oversight mechanism than in decades past, a change largely caused by the 1996 Prison Litigation Reform Act (PLRA).  Yet no such decline is evident in the nation’s most populous state, California, where prisoners’ rights litigation remains enormously influential and was the trigger to the criminal justice “Realignment” that is the subject of this symposium. Indeed, every prison in California is subject to numerous ongoing court orders governing conditions of confinement.

This article examines why California is different.  It argues California’s very large bar includes a critical mass of highly expert prisoners’ rights lawyers.  Working for both non-profits and for-profit firms, they benefited from a pipeline of large-scale, pre-PLRA, fees-paying cases that sustained them while they learned to cope with the statutory obstacles. And the Ninth Circuit’s hospitable bench awarded them some favorable fee-related rulings in support of their coping strategies.  In short, they learned how to — just barely — maintain a prisoners’ rights docket nothwithstanding very substantial financial hurdles. They continue to litigate old and new cases, but ongoing challenges pose a real threat to the fragile litigation ecosystem they have created.

August 31, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Sunday, August 30, 2015

Following the industries that follows incareration nation (with only limited concerns about sentencing reform)

Today's New York Times has this interesting article authored by David Segal about various corrections-oriented industries and their (limited) worries about the impact of sentencing reform on their bottom lines.  The article is headlined "Prison Vendors See Continued Signs of a Captive Market," and here are a couple excerpts:

[There were] 264 vendors in booths at the Indiana Convention Center for what is essentially a trade show for the prison industry.  It is the shiny, customer­-friendly face of a fairly grim business. The A.C.A. accredits jails and prisons and is also the country’s largest association for the corrections field, with a membership filled with wardens and state and county correctional administrators.

The convention is where those people window­shop.  The United States currently imprisons about 2.2 million people, making it the world’s largest jailer.  Those in charge of this immense population need stuff: food, gas masks, restraints, riot gear, handcuffs, clothing, suicide prevention vests, health care systems, pharmacy systems, commissary services — the list goes on.  These outlays are a small fraction of the roughly $80 billion spent annually on incarceration, though precise sales figures are hard to come by because most companies in this niche market are private.  Two publicly traded players, the private prison operators Corrections Corporation of America and the GEO Group, have a combined market capitalization of almost $5.8 billion. Both companies had booths in Indianapolis.

For prison vendors, this would appear to be a historically awful moment.  Sentencing reform has been gaining momentum as a growing number of diverse voices conclude that the tough­-on-­crime ethos that was born 40 years ago, and that led to a 700 percent increase in the prison population since 1970, went too far....

My goal ambling through the oddly colorful bazaar in Indianapolis for three days was to see what effect — if any — this much discussed change was having on the hard­nosed bottom line.  Was anyone here experiencing a slump, or even bracing for one?  Nobody wants businesses to suffer financially, but if you think the current incarceration system is a calamity, there is no way around it: Bad news for these companies is good news for the country.  And if change was coming, or had already arrived, these vendors would be among the first to know.

I had no idea what I would find.  But a few days before the exhibition doors opened, I spoke on the telephone to a skeptic, a guy who just didn’t believe that the country was really on the verge of a correctional system makeover. “It’s hard for me not to be cynical about it,” said Jack Cowley, a retired warden who lives in Oklahoma. “Think about the size of our system, all the judges and lawyers, putting their kids through college, people that make leg irons, Tasers. Crime is driving the train. It’s like a business that is too big to fail.”...

In Indianapolis this summer, there were the ingratiating smiles that are always part of sales, but nobody seemed giddy. Concern about sentencing reform was in the air, but more than a few vendors seemed to regard the trend as a business opportunity....

[M]any companies are trying to diversify. In 2013, Corrections Corporation of America, the country’s largest private prison company, purchased Correctional Alternatives, which specializes in re­entry programs, like work furloughs and home confinement. “We have continued to look for opportunities in this service area,” a spokesman for C.C.A. wrote in an email. “It aligns with the needs of our government partners, who are increasingly looking to this type of solution.”

August 30, 2015 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Saturday, August 29, 2015

"Federal Drug Sentencing Laws Bring High Cost, Low Return"

The title of this post is the title of this notable new Pew Public Safety Performance Project Issue Brief, which gets started this way:

More than 95,000 federal prisoners are serving time for drug-related offenses—up from fewer than 5,000 in 1980. Changes in drug crime patterns and law enforcement practices played a role in this growth, but federal sentencing laws enacted during the 1980s and 1990s also have required more drug offenders to go to prison— and stay there much longer—than three decades ago. These policies have contributed to ballooning costs: The federal prison system now consumes more than $6.7 billion a year, or roughly 1 in 4 dollars spent by the U.S. Justice Department.

Despite substantial expenditures on longer prison terms for drug offenders, taxpayers have not realized a strong public safety return. The self-reported use of illegal drugs has increased over the long term as drug prices have fallen and purity has risen. Federal sentencing laws that were designed with serious traffickers in mind have resulted in lengthy imprisonment of offenders who played relatively minor roles. These laws also have failed to reduce recidivism. Nearly a third of the drug offenders who leave federal prison and are placed on community supervision commit new crimes or violate the conditions of their release—a rate that has not changed substantially in decades.

August 29, 2015 in Data on sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Friday, August 28, 2015

Arkansas political corruption case showcases corruptness of federal sentencing guidelines

This local reporting from Arkansas, headlined "Martha Shoffner gets 30 months in bribery case," details today's federal sentencing of a significant political figure in the Natural State. Here are the basics, with some commentary to follow:

Judge Leon Holmes has sentenced former Arkansas Treasurer Martha Shoffner to 30 months in prison for taking bribes for state bond business. It will be followed by some supervised release. No fine was assessed.  The 71-year-old will have to report to a Fort Worth prison in 60 days.

She faced as much as 15 years in prison under federal sentencing guidelines.  Her attorney had asked for 12 to 18 months, with half that in home detention.  U.S. Attorney Chris Thyer, who'd asked for 60 months, said he was satisfied with the outcome....

Judge Leon Holmes said Shoffner had netted little — he ordered restitution of $31,000 she'd kept in bribes — but as a public official should do prison time....

Shoffner's attorney argued that the only loss was $36,000 in bribes, not the value of the bond business of $1.7 million. Holmes held there were multiple payments for multiple actions and the $36,000, paid in six installments, didn't amount to a single payment, which also means a potential enhancement of the sentence. He said [bribe giver Steele] Stephens benefited from the bribes to the tune of $900,000 the amount by which his $1.7 million in commissions exceeded the next biggest bond dealer who did business with Shoffner.

[Defense attorney Chuck] Banks asked the court to show mercy on Shoffner, saying she "made a terrible, terrible error in judgment" and characterizing her as "gullible" and "clueless." He said that she was inclined to accept the bribes from Stephens in large part because she was in a bad financial situation, having underestimated the cost of commuting on a regular basis between Newport and Little Rock.

Banks asked Holmes to consider Shoffner's "good deeds," including her work for the Humane Society. He presented the court with a picture of her dog, Fred, and said he was moved by the fact that after Shoffner was first arrested, she asked Banks to call her sister to check on Fred. He called two character witnesses to the stand to testify on her behalf.

He also said that in her capacity as treasurer, Shoffner's books consistently balanced and audits found no problems in the accounts of the office itself. "She was in all honesty doing a pretty dadgum good job," Banks said. "I'm proud to be standing with this poor woman here at this dark hour ... she really is gullible. She really is naive."...

Banks said Shoffner has experienced the most public vilification that he has ever seen in his career as an attorney.  He compared her haggard appearance today with a picture of her being sworn in a few years ago, to show the physical toll her ordeal has taken.  He said she was now "disgraced," "broke" and "ostracized" and noted that she drove to the courthose in a 2003 Oldsmobile this morning.

He also pointed out that Steele Stephens received complete immunity from prosecution for his cooperation with the FBI.  Stephens got a $25,000 fine and lost his brokers license, and "that's it," Banks said.

The attorney argued that sentencing Shoffner to a long period in jail would not serve the public interest, and urged Holmes to give her only as much punishment needed "to repair people's confidence in the office."  She might not live out a harsh sentence, he said.

Especially because to this day I remain grumpy Bill Clinton never got prosecuted for his crimes while in office, I tend not to be eager to argue for mercy for lawbreaking politicians. But, if I read the facts here right, it seems the bribe-giver netted nearly $1 million dollars in benefits and gets only a small fine for his misdeeds because of his FBI cooperation while the bribe-taker is headed off the prison for a couple years even though she has already been disgraced and likely never posed any real risk to public safety.

That all said, I do not find either the 30-month sentence imposed by the federal judge or even the 5-year sentence recommended by the federal prosecutor too troublesome. What offends me is a guideline structure that would recommend a 15-year(!) prison sentence for a 71-year-old, first-time offender who poses no risk to public safety. That guideline recommendation strikes me as crazy on these facts, and it is reassuring that the prosecutor here had the good sense to only urge a sentence only 1/3 as long as the guidelines recommend and that the judge imposed a sentence only half as long as the prosecutor requested. And it is cases like this that still lead me to consider circuit courts misguided in the post-Booker jurisprudence to embrace any kind of presumption of reasonableness for within-guideline sentences.

August 28, 2015 in Federal Sentencing Guidelines, Scope of Imprisonment, White-collar sentencing | Permalink | Comments (3)

Despite copious reform talk, big and tough federal drug sentencing system churns on

ChartAs regular readers know, talk of federal sentencing reform, especially drug sentencing reform, has been all the rage in recent years.  And yet, as this new report from the US Sentencing Commission details, in the last fiscal year, the federal criminal justice system still sentenced tens of thousands of drug offenders to hundreds of thousands of years of federal imprisonment.

The new report, titled excitingly "Overview of Federal Criminal Cases, Fiscal Year 2014," actually reports a decline in the overall number of federal criminal case sentences in the last fiscal year.  But this overall decline was driven mostly by a significant decline in immigration cases.  Here are some snippets from the report which highlight some of modern federal sentencing trends:

The number of individual offenders sentenced each year grew steadily after the Commission began reporting sentencing data in 1988, reaching a high of 86,201 individual offenders sentenced in fiscal year 2011.  Since then the number of cases has decreased each year.  In fiscal year 2014, the number of individual offender cases reported to the Commission fell by 4,199 (5.2%) cases from the previous year to 75,836.  Since fiscal year 2011, the number of these cases has declined by 12.0 percent....

Drug cases have traditionally been the most common federal cases.  However, beginning in fiscal year 2009, the number of immigration cases steadily increased, reaching a high of 29,717 such cases in fiscal year 2011.  That year immigration cases were the most common offense in the federal system....  In fiscal year 2014, 24,011 drug cases were reported to the Commission, accounting for 31.7 percent of all cases. Most of these cases involved drug trafficking offenses.  That year there were 22,238 immigration cases, accounting for 29.3 percent of the total federal caseload that year....

Several factors affect the average prison sentence for drug offenders, including statutory mandatory minimum punishments, the quantity of the drugs involved in the case, the prior criminal history of the offender, and whether the offender assisted the government in the investigation of his or her crime and other crimes.

For more than 20 years, crack cocaine offenders have been the most severely punished, however the length of imprisonment imposed in these cases has decreased steadily since 2007.  In fiscal year 2014, the average imprisonment for drug crimes involving crack cocaine was 93 months of imprisonment (with a median sentence of 72 months).  This compares to a high of 129 for these offenders in fiscal year 2007.  Methamphetamine offenders are the next most severely punished drug crimes, with an average length of imprisonment of 88 months (and a median sentence of 70 months).  Marijuana offenders have the lowest average imprisonment at 36 months (with a median sentence of 24 months)....

Mandatory minimum penalties enacted by Congress play a large part in determining the sentence for drug offenders, either outright or through the impact of these statutes on the structure of the guidelines.  In fiscal year 2014, half of all drug offenders were convicted of an offense carrying a mandatory minimum penalty, however, this proportion was the lowest it has been since the Commission began reporting data about mandatory minimum penalty application in 1993.  The portion of drug cases carrying a mandatory minimum penalty in fiscal year 2013 was 62.1 percent.  This significant reduction was due, in large part, to a change in the policy of the Department of Justice as to how to charge drug cases.

In fiscal year 2014, powder cocaine offenders and methamphetamine offenders were convicted of an offense that provided for the imposition of a mandatory minimum sentence at the highest rates — 65.4 percent in powder cocaine cases and 61.8 percent in methamphetamine cases.  Mandatory minimum penalties were least common in drug cases involving “other” drugs (mostly prescription drugs) and marijuana, accounting for 4.3 percent and 33.2 percent, respectively, of those cases.

These data highlight that DOJ's new charging policies have a measurable impact of the operation of the federal sentencing system. But that change did not dramatically alter the modern annual pattern of more than 125,000 cumulative years of future federal prison time being imposed on all federal drug defendants. All those years, at a conservative average taxpayer cost of $30,000 per year, means just federal drug sentencing in 2014 served to commit nearly $4,000,000,000 in future federal taxpayer funds to incarcerating those drug defendants sentenced over the last USSC fiscal year.

August 28, 2015 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Thursday, August 27, 2015

"Criminal Justice Reform Begins With Fair Sentencing and Fair Chances"

American-spectator_20070710The title of this post is the headline of this new commentary which strikes me as especially notable because (1) it is authored by the Coaltion for Public Safety's senior policy advisor, Lance Lemmonds, who recently worked for the Association of Prosecuting Attorneys and on a number of Republican campaigns, and (2) it is published by The American Spectator.  Here are excerpts:

Political conservatives who, since at least the Nixon administration, have worn with pride the badge of “tough on crime” are beginning to realize that tough doesn’t necessarily mean the same as being “smart on crime.”

Just as the private sector has embraced the mantra of “working smarter, not harder,” it’s time for federal and state officials to acknowledge the need for a smarter and more cost-effective criminal justice system.

Reducing life-without-parole sentences is one of several planks in the Coalition for Public Safety’s nonpartisan campaign for fair sentencing and fair chances, the overall goal of which is aimed at reducing the nation’s burgeoning jail and prison populations and breaking down the barriers to successful re-entry into society.

The coalition supporting the fair sentencing and fair chances campaign believes that we can dramatically reduce the enormous amount of money — currently $80 billion — that American taxpayers spend annually on incarceration in the state and federal jail and prison systems — and do so without jeopardizing public safety.  That coalition includes the conservative groups Americans for Tax Reform, Faith & Freedom Coalition and FreedomWorks.

In addition to calling for a reduction in the number of life-without-parole sentences, CPS’ fair sentencing and fair chances campaign is also calling for reducing the length of federal mandatory-minimum sentences for nonviolent offenses, so that the punishment fits the crime.  That will help safely alleviate prison overcrowding while also curbing burgeoning costs....

At both the federal and state levels, we also advocate greater use of alternatives to incarceration, where appropriate.  These include restitution, community supervision and residential re-entry centers, both pre-trial and post-sentencing, as well as expanded access to mental health care, substance-abuse treatment, education and job training.

Programs that allow inmates to reduce their sentences through credit for good behavior and participation in recidivism-reduction training should be expanded. So should the sealing of criminal records, where appropriate, to encourage rehabilitation and to make it easier for ex-offenders to find gainful employment and reintegrate into society....

Clearly, something needs to be done when, since 1980, the federal prison population has increased nearly tenfold and the state prison population has quadrupled.  More than 1 percent of all U.S. adults are now behind bars, by far the highest rate of any nation in the world.

By addressing much-needed reforms to the current one-size-fits-all approach to prison sentencing, and by also reducing barriers to education, housing, and employment that so many ex-offenders face, we can protect our communities and increase public safety.  We must seize this unique opportunity for progress to make the justice system smarter, fairer, and more effective.

August 27, 2015 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2)

"When Prisons Need to Be More Like Nursing Homes"

The title of this post is the headline of this new lengthy Marshall Project piece about the challenges posed by an aging prison population.  Here is how it begins:

America’s prison population is rapidly graying, forcing corrections departments to confront the rising costs and challenges of health care in institutions that weren’t designed to serve as nursing homes.

Between 1995 and 2010 the number of inmates aged 55 and up almost quadrupled, owing in part to the tough-on-crime sentencing laws of the 1980s and 90s, according to a 2012 ACLU report. In 2013, about 10 percent of the nation’s prison inmates — or 145,000 people — were 55 or older. By 2030, the report said, one-third of all inmates will be over 55. At the same time, it is widely accepted that prisoners age faster than the general population because they tend to arrive at prison with more health problems or develop them during incarceration. Caring for elderly inmates can cost up to twice as much as caring for younger ones.

In North Carolina, for example, it costs an estimated four times as much. During the fiscal year 2006-2007 — its most recent figures — the state’s corrections department spent $33,824,060 on health care for inmates over 50, a 35% increase from just two years earlier.

Despite these runaway costs, there is no national oversight to determine how prisons handle the challenges of an aging population, says Marc Stern, a consultant in correctional health care.  “If a Medicaid or Medicare auditor walked into [a large urban hospital] to do an audit’’ Stern said, “they would say, ‘O.K., where's your geriatric unit? Where's your dementia unit?’ It's part of the audit process, it's part of the intelligence phase that is part of being part of a national organization.”

But some states are confronting the costs and the problems. Here is a look at some innovative programs in New York, California and Connecticut.

A few (of many) recent and older related posts:

August 27, 2015 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Wednesday, August 26, 2015

New research report examines impact of "Realignment" on crime in California in 2014

Via an email from the Center on Juvenile and Criminal Justice (CJCJ), I received news about this notable new research report titled "Realignment and Crime in 2014: California’s Violent Crime in Decline." Here is how the CJCJ report was summarized in the email I received:

A new report from the Center on Juvenile and Criminal Justice examines the impact of Public Safety Realignment on county crime given newly produced 2014 data. CJCJ finds no causal relationship between Realignment and changes in rates of reported Part I offenses.

• Since Realignment was implemented in 2011, statewide violent crime and property crime have generally decreased. This decline seems to be a continuation of the downward crime trend of the past two decades that has not demonstrably been affected by Realignment.

• Almost all counties experienced a decrease in their rates of state prison commitments for non-violent offenses in 2013 versus 2010. However, these declines showed no correlation with changes in crime rates in individual counties in 2014 versus 2010. For example, Orange County’s rate of non-violent prison admissions decreased by 53 percent along with substantial reductions in crime, while adjacent Riverside County saw a 30 percent decrease in non-violent prison admission rates along with less favorable crime trends.

• Trends in motor vehicle theft, which some researchers have connected to Realignment, were highly erratic among individual counties (for example, down 35 percent in Fresno County; up 102 percent in Shasta County). No correlations between Realignment and motor vehicle theft were apparent.

This report builds on CJCJ's previous county-level analyses finding that no definitive conclusions can be drawn about the impact, if any, of Realignment on crime at this time. Instead, this report highlights nine “model counties” that have shown uniquely large decreases in reliance on state prisons alongside uniquely large reductions in property, violent, and total crime. Policymakers should study the measures taken in these nine counties to better implement effective and safe statewide decarceration strategies.

August 26, 2015 in Data on sentencing, Detailed sentencing data, National and State Crime Data, Reentry and community supervision, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (2)

Tuesday, August 25, 2015

"Federalism in Action: How Conservative States Got Smart on Crime"

Freedomworks-logo_0The title of this post is the title of this notable new paper authored by Jason Pye from the conservative group FreedomWorks.  Here is how the relatively short white-paper concludes:

Conservative states have led the way on justice reform over the last decade. By changing the culture of corrections through sentencing reforms that limit mandatory minimum prison terms to the most serious offenders and rely on treatment as an alternative to incarceration, rehabilitative programs for those who do serve time, and continued assistance when offenders reenter society, lawmakers have reduced recidivism, made communities safer, and saved taxpayers money.

The results from conservative states — these laboratories of democracy — are key as members of Congress look for ways to deal with the federal corrections system, which has seen explosive population and cost growth of its own since 1980. This is federalism in action. Through sentencing reforms and a focus on treatment as an alternative to incarceration, the federal government can lessen the cost-burden on taxpayers by using the lessons from the states to get smart on crime.

Conservatives have embraced the justice reform movement, and they should continue to do so. While passed with the best of intentions, the policies of the past have proven unsustainable, both in terms of the fiscal cost and the negative impact on poor and minority communities. The model that conservative states have provided fundamentally changes the nature of the approach. Punishments are, of course, still meted out by courts, but the sentences given offer a means for offenders to alter the direction of their lives.

One such example is a woman named Sarah Gilleland, whose story was told by Gov. Nathan Deal in a joint session of the Georgia General Assembly in January 2012. “Sarah was a drug addict. The drug use that began as recreation resulted in a destructive cocaine and methamphetamine addiction. It took control of her life. At one point, she had no means of transportation, she lost custody of her little girl, she wound up homeless,” Deal explained. “But I mention Sarah tonight because she exemplifies many of the goals we hold for our corrections system.”

“Under the supervision of a drug court, piece-by-piece, she began rebuilding her life. With help, she beat addiction, she won back her daughter, she is now a sponsor helping other women who face the same trials, and because she provides a powerful example of hope and redemption, I have asked her to join us in this chamber tonight,” he said, pointing to Sarah in the gallery of the chamber.

“Sarah was given a shot a better life and she took it. Her story is not the exception, it is playing out all across Georgia as people reclaim their lives through the work of accountability courts.”

“That is why we must focus on transforming our corrections system into a last resort of opportunity—a place where low-level offenders are reclaimed and restored to society as functioning members of the community—working to support their own families and paying taxes,” he added.

Compelling stories such as this are not just told in Georgia, they are also told in other states that have adopted conservative justice reforms that focus on rehabilitation, rather than incarceration. And as more states and the federal government adopt the effort, more prison space will be reserved for the worst offenders in society, while those who have demonstrated a willingness to change their lives become productive citizens.

August 25, 2015 in Mandatory minimum sentencing statutes, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2)

Saturday, August 22, 2015

"Guns and Drugs"

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

This Article argues that the increasingly prevalent critiques of the War on Drugs apply to other areas of criminal law.  To highlight the broader relevance of these critiques, the Article uses as its test case the criminal regulation of gun possession.

The Article identifies and distills three lines of drug-war criticism, and argues that they apply to possessory gun crimes in much the same way that they apply to drug crimes. Specifically, the Article focuses on: (1) race- and class-based critiques; (2) concerns about police and prosecutorial power; and (3) worries about the social costs of mass incarceration.  Scholars have identified structural flaws in policing, prosecuting, and sentencing in the drug context; in the Article, I highlight the ways that the same issues persist in an area — possessory gun crime — that receives much less criticism.

Appreciating the broader applicability of the drug war’s critiques, I contend, should lead to an examination of the flaws in the criminal justice system that lessen its capacity for solving social problems.

August 22, 2015 in Drug Offense Sentencing, Gun policy and sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1)

Friday, August 21, 2015

"Who Built Prison America? Not Ted Kennedy"

Regular readers may recall a couple posts earlier this year (here and here) noting a fascinating book by Princeton Professor Naomi Murakawa titled The First Civil Right: How Liberals Built Prison in America.  Interestingly, Ron Weich, a prominent former staffer for Senator Ted Kennedy has this new commentary at The Crime Report (with the same headline of this post) asserting it is wrong to lay blame on Senator Kennedy for modern mass incarceration.  Here are excerpts:

One of Kennedy’s most far-reaching bipartisan accomplishments was the Sentencing Reform Act of 1984.  Yet this law serves as Exhibit A for Professor Murakawa’s theory that liberals bear responsibility for the failed criminal justice policies of that era.  She blames the sentencing guideline system established by the Act for contributing to mass incarceration and accuses Sen. Kennedy of advancing unduly punitive policies....

Murakawa has harsh words for all who supported the 1984 Act, but she singles out Kennedy for special criticism.  She decries the fact that the man she calls “the liberal lion of the Senate” included in the law various “carceral” elements such as the abolition of parole and a reduction in the availability of good-time credits for prisoners.  She tracks changes in the sentencing bills Kennedy introduced from 1977 to 1984 and argues that his bills became increasingly punitive.  She regards Kennedy as a “hard test case for my claim that Democrats aided, abetted, and legitimized a punitive law and order regime.”

The first flaw in the Murakawa book is its subtitle: How Liberals Built Prison America. No fair observer of criminal justice policy could conclude that liberals -- or conservatives or Democrats or Republicans -- bear sole responsibility for the spike in incarceration over the past half century. Rather, these disastrous criminal justice policies were a bipartisan misadventure that reflected the nation’s anger and fear about crime.

Every crime bill enacted by Congress in the 1980s and 1990s passed with broad bipartisan majorities and the support of leaders from both political parties.  Only a handful of liberal House Democrats sometimes voiced concern.  The Senate often passed crime bills by unanimous consent.

It is certainly fair to criticize Kennedy and other liberals for supporting bad crime bills. But they did not build “Prison America” by themselves, as the subtitle of Murakawa’s book unfairly suggests.

Murakawa’s narrative also fails to appreciate the complex collaborative nature of the legislative process.  She attributes to Kennedy personally the flaws she perceives in his bills. Yes, he was a lead sponsor of the Sentencing Reform Act, but he did not write the law in a vacuum.  The bill’s text is the product of years of negotiations with [Strom] Thurmond and many other members of the Senate, as well as committee markups and floor debates.

Murakawa acknowledges, but does not emphasize, the huge influence of the Justice Department in shaping the final law.  It is no surprise that a bill first introduced during President Jimmy Carter’s administration became more conservative by the time it was signed into law by President Ronald Reagan.

Too often, Murakawa conflates the role of the guideline system and mandatory minimum sentencing laws in contributing to overincarceration.  Many of the most draconian mandatory minimums for drug and gun crimes were enacted in 1986, after the passage of the Sentencing Reform Act of 1984 but before the guidelines took effect in 1987.  Kennedy recognized that mandatory minimums were unjustified once the guideline system had been established.  He repeatedly argued that guidelines are a reasonable mechanism to restrain judicial discretion, whereas mandatory minimums are blunt and unyielding.

Throughout the 1990s Kennedy fought against mandatory minimum sentencing proposals, as I detailed in my article “The Battle Against Mandatory Minimums: A Report from the Front Lines.”

He championed the safety-valve provision (18 USC 3553(f)) in the 1994 crime bill, which allows certain low-level, nonviolent offenders to be sentenced below applicable mandatory minimums.  In fact, in his 1994 reelection race against Mitt Romney, Kennedy faced brutal ads claiming he was soft on crime because he had opposed mandatory sentencing.

Kennedy and other liberals can be faulted for voting in favor of the 1986 crime bill and other bills which contained mandatory minimums, but they did not lead the charge for those policies as Kennedy had for a guideline system.  In fact, Sen. Kennedy was a leader in opposing mandatory minimums once their effect became clear and their inconsistency with the guideline system became apparent.

More generally, Kennedy was a voice for more rational criminal justice policies.  He always opposed capital punishment and, as Prof. Murakawa notes, led the unsuccessful fight to pass the Racial Justice Act which would have allowed capital defendants to challenge their sentences using statistical evidence of racial bias....

Professor Murakawa has written a thoughtful, comprehensive academic study of federal sentencing policies. A book like hers provides an important service, but it cannot be expected to take account of the rough-and-tumble aspects of the legislative arena.  During his long political career, Sen. Kennedy endured criticism that was a lot harsher and less fair than that contained in Murakawa’s book.

As someone who has been involved in criminal justice policy for many years, both before and after I worked for Sen. Kennedy, I share Murakawa’s concern about America’s overreliance on incarceration.  I also applaud the current trend toward more sensible sentencing policies.

I have no doubt that if Sen. Kennedy were alive today, he would be leading the charge for criminal justice reforms.  And he would be doing so in a bipartisan manner, working with Sens. Rand Paul, Mike Lee and other unlikely bedfellows.  That was his way.

Prior related posts:

August 21, 2015 in Elections and sentencing issues in political debates, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

Monday, August 17, 2015

US Sentencing Commission releases new data on retroactive application of "drugs -2" guideline amendment

I just noticed on the US Sentencing Commission's website this notable new document titled "2014 Drug Guidelines Amendment Retroactivity Data Report." This part of the report's introduction provides the basic back-story for the data which follow:

On April 30, 2014, the Commission submitted to Congress an amendment to the federal sentencing guidelines that revised the guidelines applicable to drug trafficking offenses by changing how the base offense levels in the drug or chemical quantity tables in sections 2D1.1 and 2D1.11 of the Guidelines Manual incorporate the statutory mandatory minimum penalties for drug trafficking offenses (Amendment 782). Specifically, the amendment reduced by two levels the offense levels assigned to the quantities that trigger the statutory mandatory minimum penalties, resulting in corresponding guideline ranges that include the mandatory minimum penalties, and made conforming changes to section 2D1.1. Amendment 782 became effective on November 1, 2014.

On July 18, 2014, the Commission voted to give retroactive effect to Amendment 782 beginning on the effective date of the amendment. The Commission also voted to require that courts not release any offender whose term of imprisonment was reduced pursuant to retroactive applications of Amendment 782 prior to November 1, 2015.  To effectuate these decisions, the Commission promulgated Amendment 788, which added Amendment 782 to the list of amendments in section 1B1.10 (Reduction in Term of Imprisonment as a Result of an Amended Guideline Range)(Policy Statement) that apply retroactively. Amendment 788 also added a new special instruction to section 1B1.10 requiring that the effective date of all orders reducing a term of imprisonment pursuant to retroactive application of Amendment 782 be November 1, 2015 or later.  Amendment 788 became effective on November 1, 2014.

The data in this report represents information concerning motions for a reduced sentence pursuant to the retroactive application of Amendment 782.  The data in this report reflects all motions decided through July 24, 2015 and for which court documentation was received, coded, and edited at the Commission by August 3, 2015.

The subsequent official data indicate that, thanks to the USSC's decision to make its "drugs -2" guideline amendment retroactive, approximately 13,000 federal prisoners have had their federal drug prison sentences reduced by an average of nearly two years.

So, given the (conservative) estimate of each extra year of imprisonment for federal drug offenders costing on average $35,000, the USSC's decision to make its "drugs -2" guideline amendment retroactive so far appears to be on track to save federal taxpayers close to one billion dollars.  Kudos to the US Sentencing Commission for providing at least some proof that at least some government bureaucrats inside the Beltway will sometimes vote to reduce the size and costs of the federal government.

August 17, 2015 in Drug Offense Sentencing, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Sunday, August 16, 2015

"Sex Offenders Locked Up on a Hunch"

The title of this post is the headline of this lengthy New York Times editorial. Here are excerpts:

The essence of the American criminal justice system is reactive, not predictive: You are punished for the crime you committed.  You can’t be punished simply because you might commit one someday.  You certainly can’t be held indefinitely to prevent that possibility.

And yet that is exactly what is happening to about 5,000 people convicted of sex crimes around the country.  This population, which nearly doubled in the last decade, has completed prison sentences but remains held in what is deceptively called civil commitment — the practice of keeping someone locked up in an institution for months, years or even decades for the purpose of preventing possible future offenses.

The authorities have the power to detain people with mental illnesses or disorders who cannot function independently, or who pose a danger to themselves or others.  But since the early 1990s, this power has been used increasingly to imprison one distinct group: sex offenders....

In a decision in June, a federal judge ruled that Minnesota’s civil-commitment law for sex offenders violates the Constitution.  Federal District Judge Donovan Frank said the law imposes “a punitive system that segregates and indefinitely detains a class of potentially dangerous individuals without the safeguards of the criminal justice system.”  For example, local prosecutors — not clinicians or mental health professionals — choose whether to seek continued detention based on a screening test that claims to predict a person’s likelihood of committing another sex offense, though there is no clear evidence such tests are accurate.

Yet based largely on those screening tests, more than 700 Minnesotans who have completed their prison sentences are locked up, at an annual cost of more than $120,000 per person — triple the cost of prison.  This civil commitment rate is by far the highest in the country. Some people have been held for more than 20 years.  During that time, not one person has been released from the program unconditionally.

A central flaw, Judge Frank said, is that Minnesota does not perform reassessments of risk, so the burden lies with the detainees to prove they no longer pose a danger.  On Aug. 12, Judge Frank ordered the state to come up with constitutionally valid reforms by the end of September, or he “may demand a more forceful solution.”

Despite the public perception that all sex offenders are recidivists — a belief that drove these laws in the first place — sexual re­offense rates are in fact lower than those for other crimes (though an unknown number of sex crimes go unreported).  In addition, while some states’ laws make it easier for detainees to earn their way out, 30 states have no civil­-commitment laws at all, and there is no evidence that a state’s sexual­-violence rate is affected by whether it has such a law....

Public safety would be better served if resources were directed toward community supervision and other services for those leaving prison, rather than toward skirting the edges of the Constitution to keep them locked away.

August 16, 2015 in Criminal Sentences Alternatives, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (12)

Friday, August 14, 2015

In Ohio, "State prisons chief calls for softened hearts"

The quote in the title of this post is the headline of this local AP story about notable recent comments from the Director of Ohio's Department of Rehabilitation and Correction. Here are the details:

Ohio’s prisons chief is calling for more compassion toward wrongdoers as he continues a push to reduce the state’s inmate population.  Too often an “us vs. them” mentality gets in the way of instituting programs to prevent people from going to prison and to keep former inmates from returning, corrections director Gary Mohr told a legislative prison-inspection committee on Thursday in remarks that at times were closer to a sermon than a speech.

“Our hearts need to be softened to some degree,” said Mohr, director of the Department of Rehabilitation and Correction.  “We have to think about the sense of forgiveness.” When Mohr started his prisons career 41 years ago, Ohio had 8,300 inmates in seven prisons, including 291 female inmates.  The total now is holding steady at about 50,000 in 27 prisons, including 4,200 female prisoners.

The state’s incarceration rate was 5.3 per 100,000 citizens, compared with 68.1 today, said Mohr in a 40-minute speech to the bipartisan Correctional Institution Inspection Committee.  Mohr is also dissatisfied that 1 in 4 state employees now work in adult corrections.

Society’s tough-on-crime attitude doesn’t match statistics showing violent crime at historic lows, he added.  But Mohr also sees signs of optimism as commitments from the state’s biggest counties drop thanks to the growth of community alternatives in urban areas.  The next challenge is extending such programs to the 82 counties where commitments have increased.  The state is taking advantage of programs seeking to better integrate prisoners into society, as well, Mohr said. And the expansion of Medicaid will help inmates as they re-enter communities.

Among other issues Mohr said:

• 8,400 Ohio inmates spend less than a year in prison, a short period of time likely better served in communities in some form.

• 1 in 4 inmates is a probation violator, a trend that needs to be reversed by giving judges more discretion when ex-offenders make mistakes.

• The high population of some Ohio prisons raises security concerns.

Under Gov. John Kasich, the state has made efforts to slow the inmate population by easing penalties on first-time offenders, providing some early-release opportunities and boosting community-based options.  At the same time, the state’s painkiller- and heroin-addiction epidemic has led to a rash of thefts, burglaries and other crimes that have increased prosecutions.

August 14, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

Thursday, August 13, 2015

Fourth Circuit reverses district court's conclusion that Eighth Amendment precluded mandatory LWOP for piracy

Thanks to a helpful reader, I saw that the Fourth Circuit today handed down a panel decision in US v. Said, No. 14-4420 (4th Cir. Aug. 13, 2015) (available here), which reverses a district court's prior ruling that the Eighth Amendment precluded the imposition of mandatory LWOP federal sentences on defendants convicted of piracy.  The main opinion in Said ends its Eighth Amendment analysis this way:

Victims of piracy are robbed of their vessels, kidnapped, held hostage, and even tortured and murdered, while pirates are often able to find safe refuge in the territorial waters off Somalia and collect multi-milliondollar ransom payments.  In these circumstances, we agree with the government “that Congress could with reason conclude [that piracy] calls for the strong medicine of a life sentence for those who are apprehended.” See Br. of Appellant 39.

We are satisfied that “the relationship between the gravity of [the defendants’] offenses and the severity of [their proposed] punishment fails to create the threshold inference of gross disproportionality that is required” to satisfy prong one of the Eighth Amendment analysis.  See Cobler, 748 F.3d at 580.  Thus, without moving to prong two, we rule that the district court erred in invalidating § 1651’s mandatory life sentence as to these defendants and is obliged to impose such sentences on remand.

Judge Davis wrote an intriguing little concurring opinion urging Congress to no longer mandate LWOP sentences in all piracy cases because "not all piracy offenses are equal in severity, in heinousness, and in the dire consequences visited on innocent seafarers."  In so doing, Judge Davis dropped this notable footnote:

Indeed, in this case, Mr. Ibrahim, who was “the group’s leader” and who “led the new mission,” ante at 7, would seem to have earned a life sentence.  But he avoided that fate through the magic of “substantial assistance” and the fiction of “acceptance of responsibility,” the coins of the federal prosecutorial realm.  The inference is unavoidable that it is not really those who participate in piracy who receive a life sentence upon conviction (as we imagine Congress might believe), but rather those who are convicted after electing to go to trial.

August 13, 2015 in Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (10)

New juve research suggests punishment certainty matters over severity to achieve deterence

This recent posting via the Juvenile Justice Information Exchange, titled "Report: Certainty, Not Severity, Key in Deterring Juvenile Crime," spotlights recent research on juvenile punishment's impact. Here are excerpts:

Researchers first reported several years ago that a major longitudinal study of serious adolescent offenders showed the severity of their punishments had little effect on their recidivism rates. Digging into the data, the researchers also found that teenagers who commit serious crimes do respond to the threat or risk of sanctions, though not in a one-size-fits-all way.

In a new report released by the federal Office of Juvenile Justice and Delinquency Prevention [available here], researchers say the findings point to the need to devote resources to change risk perceptions, rather than prisons.

The report, “Studying Deterrence Among High-Risk Adolescents,” is one of several OJJDP bulletins based on research from “Pathways to Desistance,” the study that followed more than 1,300 young offenders for seven years after their court involvement.

The resulting research has found no meaningful reduction in offending or arrests due to more severe punishment, such as correctional placement versus probation or longer periods of institutional placement, the researchers said. But it did find that the certainty of punishment can play a role in deterring future crimes. Among adolescents who commit serious offenses, “recidivism is tied strongly and directly to their perceptions of how certain they are that they will be arrested,” the report said.

Edward Mulvey, the principal investigator on the Pathways study, said the idea that adolescents respond to the certainty of punishment, not severity, has found an audience with some policymakers. They are asking whether states should have to justify why the criminal justice system should hold an adolescent offender for a long time....

The new bulletin looks at how young offenders evaluate the risks of crime, which has a deterrence effect. Young people slightly increased their risk perceptions in response to an arrest, it found. The researchers said, though, there is no standard response to the certainty of punishment because risk perceptions vary based on individuals’ prior experiences or history of offenses and other factors.

August 13, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Data on sentencing, Offender Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (4)

Tuesday, August 11, 2015

"Does Plea Bargaining Add to Criminal Court Caseloads?"

The question in the title of this post is the title of this new commentary by LawProf Darryl Brown at Casetext.  Here are excerpts:

Crime rates have been declining for twenty years, and more recently the caseloads in many state and federal courts have been declining as well, although somewhat more modestly. Yet as courts got a little breathing room, the rate of guilty pleas has not declined. Instead, in the federal system and some states, guilty pleas increased—usually from an already-high rate (as a share of total convictions) of 90 or 95 percent.  To legal scholars who have examined plea bargaining for decades, this was not a surprise.  Studies of courts in the 1970s found that plea bargaining did not decline even when caseloads for a local court system sharply fell, leaving prosecutors and judges with proportionately more time to handle the rest.  Federal plea bargaining, it now seems clear, increased as prosecutors gained more bargaining leverage from mandatory sentencing laws and federal guidelines that greatly restricted judges’ sentencing discretion.

Plea bargaining, in short, is not simply of function of crime rates and the criminal caseloads that result from them. It depends many things: whether the parties want to reach a deal, strength of the evidence, and — far from least — how much bargaining leverage the law gives to prosecutors. To say merely that “plea bargaining is essential” begs the real question.  It doesn’t answer whether all plea bargains we now achieve — 95 percent in federal courts — are compelled by caseloads and strapped budgets.  Plea bargaining may be essential, but how many — or what percentage of — cases must be resolved by guilty pleas rather than trials?...

Discretionary decisions play out differently when courts and prosecutors can handle more cases thanks to the efficiency of plea bargaining.  If it doesn’t “cost” as much to charge and convict, it is more tempting to do so.  Police know courts can process some additional petty offenses, and prosecutors know that they can handle more as well.  This doesn’t have to be a conscious recognition in every officials’ mind ... [but] plea bargaining helps to create a new set of norms or baselines — about how many cases prosecutors and judges ought to handle, about which defendants ought to plead guilty, and perhaps about which events deserve to be charged as crimes.  Cases with evidence so weak that a trial conviction is highly uncertain now look worth the effort because, with hard-ball right plea bargaining, they can be turned into convictions.  After years of achieving 95 percent of convictions through guilty pleas, a court system that suddenly had trials in 15 percent of cases would look like it is doing something wrong.  The defendants who insisted on those additional trials would seem like ones whose cases didn’t “deserve” a trial and, consequently, that merit a harsher sentence because they had one.

All of these things are hard to measure.  Empirical researchers have not yet demonstrated that plea bargaining actually drives up the number of cases in criminal courts.  It may be the kind of phenomena that simply can’t be reliably measured. But ... recall that criminal caseloads continue to increase long after crime began to decline in the early 1990s.  More tellingly, Professor John Pfaff has found that evidence that, in many states, prosecutors file charges a higher percentage of cases they receive from police than they did twenty or thirty years ago.  That is, they use their discretion less often to decline to prosecute.  Reasons for this are unclear.  Maybe police now collectively send prosecutors case reports backed by stronger evidence.  Maybe the current generation of prosecutors has tougher-on-crime views than the previous generation did.  But we ought to be concerned that we have made plea bargaining so common, and so efficient, that its effect has not simply been to enable the criminal justice system to process more cases without more judges and prosecutors.  There is a good chance that plea bargaining has also increased the number of criminal cases in the system.

That might be good thing if crime was increasing.  Or if we simply couldn’t afford to increase funding for prosecutors and judges at the same that we do for police and prisons.  Or if we placed no social and political value on trial by jury.  But none of that is true.  What is true is that, as we have increased the rate of guilty pleas from already high levels of 75 or 85 percent of convictions to 90 or 95 percent, the United States also created the single most punitive criminal justice system, with by far the highest incarceration rate, in modern world history.  That alone ought to be reason to worry that our exceedingly efficient system of plea bargaining has triggered “rebound effects.”

August 11, 2015 in Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (7)