Sentencing Law and Policy

Federal judges give Gov. Brown a six-month reprieve on California prison population deadline

As reported in this Sacramento Bee article, headlined "U.S. judges give California six more months to cut inmate population," the federal judges administering the Plata prison overcrowding litigation in California have modified their orders in the case.  Here are the details:

Three weeks after Gov. Jerry Brown declared the state's prison overcrowding crisis over, a court of three federal judges said Tuesday that state officials can have six more months to reduce the inmate population to the previously ordered level.

The judges noted that California officials have said they cannot meet the court's June 30 deadline for reducing its population to 137.5 percent of design capacity, but the officials believe they can hit that mark by Dec. 31.  "Accordingly, this court modifies the June 30, 2011, order by granting defendants a six-month extension in which to comply with its terms and provisions," said the order from 9th U.S. Circuit Court of Appeals Judge Stephen Reinhardt, U.S. District Judge Lawrence K. Karlton of Sacramento and U.S. District Judge Thelton E. Henderson of San Francisco.

Karlton and Henderson have overseen years of litigation aimed at bringing the level of mental and medical health care for inmates up to constitutional standards.  Following a trial, the three-judge court appointed by the 9th Circuit's chief judge ruled that the crowded conditions of the state's 33 adult prisons were the primary reason for the unconstitutional care.  Prisoners were jammed into areas of the prisons not designed for housing.  At some points, the number of inmates ballooned to double the designed capacity, and the U.S. Supreme Court endorsed the three-judge court's order.

Since the governor instituted his so-called realignment program a year ago to divert nonviolent, nonserious offenders to county jurisdictions, the state has made progress cutting the prison population, but Brown said he cannot release additional inmates without putting the public at risk.  Corrections officials indicated they are pleased with Tuesday's order but are still not satisfied.

"We are pleased the court recognized that releasing thousands of inmates to reach the arbitrary population cap by June would have jeopardized public safety," the state Department of Corrections and Rehabilitation said in a statement.  "However, we believe the court should go further and terminate the population cap entirely, as CDCR is providing a constitutional level of health care at current population levels."...

The federal court wants the prison population cut by the end of the year to about 110,000 inmates, down from about 119,000 currently.  The design capacity of the state's 33 adult prisons is about 80,000....

Michael Bien, lead attorney for the inmates, said Tuesday that "the order's message is the judges are going to hold the state to the numbers. Corrections got an extension, but it didn't get anything else. The question is still 'Are they going to comply?'" Brown and his prison officials "are still saying everything is just fine and the courts should go away and leave us alone," Bien said. "They claim the courts have no more jurisdiction since the constitutional standard has been met.  It's one thing to say that, it's another to prove it," he declared.  "They have a long way to go to do that.  They've made these claims before, but they've never been able to back them up."

US District Judge Gleeson assails drug guidelines in another potent opinon

A number of helpful readers made sure I did not miss the latest doozy of an opinion issued by US District Judge John Gleeson in United States v. Diaz, No. 11-CR-00821-2 (E.D.N.Y. Jan. 28, 2013) (available for download below).  The opinion is a must-read for various reasons — one reader described it to me as an "instant classic" — and these opening points hint at the opinion's coverage:

Last year in United States v. Dossie, I wrote about how the mandatory minimum sentences in drug trafficking cases distort the sentencing process and mandate unjust sentences. This case illustrates a separate but related defect in our federal sentencing regime....

Diaz will be sentenced in a few weeks, and when that happens I will carefully consider all the factors set forth in 18 U.S.C. § 3553(a) except one — the length of imprisonment recommended by the United States Sentencing Commission’s Guidelines Manual. Though I will not ignore Diaz’s Guidelines range, I will place almost no weight on it because of my fundamental policy disagreement with the offense guideline that produces it. In fairness to the government, I write here to explain my belief that the offense guideline for heroin, cocaine, and crack offenses (“drug trafficking offenses”) is deeply and structurally flawed. As a result, it produces ranges that are excessively severe across a broad range of cases, including this one.

The flaw is simply stated: the Guidelines ranges for drug trafficking offenses are not based on empirical data, Commission expertise, or the actual culpability of defendants. If they were, they would be much less severe, and judges would respect them more. Instead, they are driven by drug type and quantity, which are poor proxies for culpability.

These passages from the body of the lengthy Diaz opinion reveal just some of its many flourishes:

If the Commission wants greater adherence to the Guidelines, as it should, it needs to get better at fixing broken offense guidelines.  The drug trafficking offense guideline was born broken.  Many judges will not respect it because as long as the sentences it produces are linked to the ADAA’s mandatory minimums, they will be too severe.  Indeed, as discussed further below, for almost two decades the nation’s judges have been telling the Commission to de-link the drug trafficking offense guideline from those harsh mandatory minimums and to reduce the sentencing ranges.  The Commission should listen and act.  It should use its resources, knowledge, and expertise to fashion fair sentencing ranges for drug trafficking offenses.  That process will take time.  In the meantime, because real people, families, and communities are harmed by the current ranges, it should immediately lower them by a third....

Let those who advocate for longer prison terms, and even a return to the dark days of mandatory Guidelines, go ahead and make their case.  The debate is good for the health of our federal criminal justice system.  But the suggestion that federal sentences should become more severe in the name of racial equality is preposterous.  That case has emphatically not been made, and the Commission’s repeated suggestion that it has insults the entire judiciary and demeans the Commission itself.  If it does nothing else, the Commission should take affirmative steps to remove the race issue, which it unwisely inserted into the discussion of federal sentencing policy, from the debate....

The Commission should use its resources, knowledge, and expertise to fashion fair sentencing ranges for drug trafficking offenses.  If it does, those ranges will be substantially lower than the ranges produced by the current offense guideline.  The deep, easily traceable structural flaw in the current drug trafficking offense guideline produces advisory ranges that are greater than necessary to comply with the purposes of sentencing.  We must never lose sight of the fact that real people are at the receiving end of these sentences.  Incarceration is often necessary, but the unnecessarily punitive extra months and years the drug trafficking offense guideline advises us to dish out matter: children grow up; loved ones drift away; employment opportunities fade; parents die.

Download United States v. Ysidro Diaz

Important reminder that sentencing reform does not always complete offenders' need for help

This notable new local article, headlined "Newly released California 'three-strikers' face new challenges," provides an intriguing report on the new problems facing certain offenders even after they receive the benefits of sentencing reform. Here are excerpts:

In an unforeseen consequence of easing the state's tough Three Strikes Law, many inmates who have won early release are hitting the streets with up to only $200 in prison "gate money" and the clothes on their backs.

These former lifers are not eligible for parole and thus will not get the guidance and services they need to help them succeed on the outside, such as access to employment opportunities, vocational training and drug rehabilitation.  The lack of oversight and assistance for this first wave of "strikers" alarms both proponents and opponents of the revised Three Strikes Law -- as well as the inmates themselves.

"I feel like the Terminator, showing up in a different time zone completely naked, with nothing," said Greg Wilks, 48, a San Jose man who is poised to be released after serving more than 13 years of a 27-years-to-life sentence for stealing laptops from Cisco, where he secretly lived in a vacant office while working as a temp in shipping and receiving.

Experts say California voters didn't have this situation in mind when they approved Proposition 36 in November by an overwhelming margin.  Under the new law, judges cannot impose a life sentence on most repeat offenders who commit minor crimes. But the law also allows about 3,000 inmates whose last strike was a minor crime to petition for early release or shorter sentences -- as long as a judge finds they don't pose a serious risk to public safety.

Because of the way the state's complex sentencing laws work, many of those strikers have already been locked up longer than their newly calculated terms and usual period of parole, leaving many to fend for themselves without supervision or assistance once they are released.

So far, none of three dozen or so strikers who have been resentenced since November or with the help of the Three Strikes Project before the election has been rearrested.   But some say it's only a matter of time.   "It's pretty clear if you release people early without any supervision, there's an increased ability of them to re-offend," said Mike Reynolds, a Fresno man who helped draft the Three Strikes Law after his daughter was slain in 1992 by two repeat offenders. "It's a very, very dangerous policy."

Supporters of the revised three strikes policy are concerned that a notable uptick in crime -- even minor crimes by strikers -- will make the new law look like an ill-advised failure.

To reduce the risk, the same Stanford University Law School instructors who co-wrote Proposition 36 are now organizing a statewide effort to create re-entry plans for strikers using a combination of public and private services.  They're planning to meet with operators of homeless shelters and innovative transitional programs from around the state, like San Francisco's Delancey Street Foundation, one of the country's leading residential self-help organizations for former substance abusers, ex-convicts, homeless people and others who have hit bottom.

"We want these people to succeed," said Michael Romano, director of Stanford's Three Strikes Project. "We don't want them committing crimes and creating more victims." Proponents say the main reason they didn't foresee the situation is that the rules regarding parole changed significantly -- after officials had already approved the ballot language for Proposition 36....

Three-strikers face greater re-entry challenges than normal inmates, said Joan Petersilia, a Stanford law professor.  About 38 percent receive some level of mental health treatment in prison, compared with 22 percent of the general population.

Romano and his group are hoping to turn to the same donors who funded Proposition 36 for help in creating a statewide re-entry program.  A lot rides on the strikers' success. If they do well -- with the help of people like liberal billionaire George Soros, who donated heavily to Proposition 36 -- advocates could use their success to advance the cause of prison reform. If they fail, it could weaken the national effort to reduce mass incarceration.

"Sentenced to Confusion: Miller v. Alabama and the Coming Wave of Eighth Amendment Cases"

The title of this post is the title of this recently published essay by Craig Lerner, which gets started this way:

In Miller v. Alabama, the Supreme Court held unconstitutional roughly 2,000 life-without-parole sentences,which had been imposed on juveniles by twenty-eight states and the federal government.  The nominal license for the exercise of this power was the Constitution’s Eighth Amendment, which proscribes “cruel and unusual punishments.”  The astute (or perhaps naïve) reader will wonder: how can 2,000 sentences imposed by a majority of U.S. jurisdictions be unusual?  For that matter, is it possible that a majority of U.S. jurisdictions countenance a “cruel” punishment?

These questions are premised on the now-quaint idea that the phrase “cruel and unusual punishments” was relevant to the Court’s decision in Miller. Although the Court has touted adherence to the Constitution’s text and its historical understanding as a basic interpretive principle in decisions examining the Second, Fourth, and Sixth Amendments, this even-numbered originalism collapses at“eight.”  The jurisprudence of he Eighth Amendment was long ago untethered from its text, and as a consequence, the decision in Miller came as little surprise.

More notable talk of more notable sentencing reforms (and a sentencing commission) in Texas

For many years and for many reasons, Texas has been among the most interesting and dynamic modern sentencing reform states.  And this new article from the Austin American-Statesman, headlined "Prison reform outlook improves with business group’s involvement," details why the past, present and future of sentencing in the Lone Star State merits close attention from all sentencing fans. Here are snippets from this new article:

Now, with an influential business lobby group and a leading conservative organization leading the charge, some legislative leaders are wondering whether this year’s 140 days of lawmaking could rival the 2007 session.  That year, lawmakers approved a historic $240 million initiative to provide addiction treatment and rehabilitation programs for convicts rather than building new prisons, a gamble that has since paid off — and become a national model.

This year, just two weeks into the legislative session, there are active discussions about expanding a variety of community-based corrections programs with state funds, changing state laws to rehabilitate low-level drug offenders in programs rather than in expensive state prisons, and even to ease laws that limit ex-convicts’ employment.

“The Legislature this year has an opportunity to take the next step,” said Marc Levin, director of the Center for Effective Justice at the conservative Texas Public Policy Foundation.  Levin helped bring in the support of the Texas Association of Business to push the smarter-on-crime agenda.   “The current system is a drag on our vitality as a state. The more people we can get into less costly treatment and rehabilitation programs that are successful, the better off we’ll be,” he said.

Bill Hammond, a former legislator who is president of the Texas Association of Business, agrees: “The current system costs too much. We’re looking at this from a business standpoint, that some changes are good public policy.”  Even state Sen. John Whitmire, a Houston Democrat who is an architect of many of the previous reforms, says he is hopeful that meaningful reforms could be in the offing, thanks to an unexpected new ally....

Proposals sparking the most discussion so far include:

• Allowing more low-level offenders caught with small amounts of certain drugs to be sentenced to local rehabilitation and treatment programs instead of prison, and letting shoplifters and other petty criminals serve their sentences under community-based supervision. ...

• Making prostitution a misdemeanor offense, rather than a low-level felony. The change could eventually remove several hundred women from state lockups and place them in local rehab programs that have been highly successful elsewhere. The difference in cost: $15,500 a year for a state cell vs. $4,300 for a bunk in a community program.

• Creating a new commission of judges, prosecutors and other officials to review sentencing practices across the state.  The panel was recommended by a recent government-efficiency report by the Legislature Budget Board.  If adopted, it would be the first time the state’s criminal laws have been reviewed for streamlining since 1993....

• Allowing dozens of terminally ill and bedridden offenders to be more easily paroled, a move that could save the state millions of dollars in prison medical costs.  At $700 million a year, the medical tab is one of the fastest-growing items in the state budget. The 10 sickest convicts in 2011 cost taxpayers nearly $2 million....

Crime victims and police groups that have campaigned to increase criminal penalties say they will be watching for any changes that might be too soft on crime.  But some acknowledge that discussion of successful, less costly alternatives to prison is timely. “As long as public safety remains the most important priority, I’m sure there’s room for improvement,” said Kat Peterson, a Dallas resident who been a frequent fixture at legislative hearings over the past decade — both as a onetime victim of violent crime and an advocate for her cousin who is serving a long sentence in a state prison.  “Even a good system can be reformed to make it better.”

I often look to Grits for Breakfast when I want to know more about the latest comingsand goings on Texas criminal justice issues, and Grits had had these recent notable posts on this front:

• LBB recommends sentencing commission to enhance consistency, contain costs of criminal sentences
• Central Unit not 100% closed: Targeting prison closures based on economic, budget benefits
• On ideology and overincarceration: Explaining conservative support for criminal-justice reform

Talk in Vermont of requiring judges to consider directly costs of sentence

This local article, headlined "Sentencing in Vt: Factor in cost?," reports on an interesting sentencing debate now taking place in the Green Mountain State.  Here are highlights:

As part of an effort to curb rising corrections budgets, the Senate is contemplating legislation that would require Vermont judges to consider the cost of a sentence before handing down jail time.  Sen. Dick Sears, chairman of the Senate Judiciary Committee, said it would be up to individual judges to decide whether to allow the information to influence their sentencing decisions.  But with the annual cost of incarcerating an inmate in Vermont at $45,000, Sears said judges at least ought to be aware of the financial consequences of their decisions.

“I’m not suggesting we shouldn’t lock somebody up for 20 years,” Sears said Tuesday. “But if we do, it’s going to cost us $650,000, in today’s dollars, and we need people in the system to be asking themselves: Is that a good investment?”

Requiring judges to consider the cost of their sentences is the most controversial provision in a bill that seeks broader reforms to the sentencing process. The bill would provide judges information about the average sentences for certain crimes — a measure aimed at remedying the disparity in sentencing across county lines. The bill also would institute a risk assessment for offenders, before sentencing, as a means of helping judges evaluate the merits of various options.

Bram Kranichfeld, the new executive director of the Department of State’s Attorneys and Sheriffs, said cost should have no bearing on sentencing.  “You can end up with unfair results, you can end up with arbitrary results, if a judge is required in every case to take cost into account,” Kranichfeld said.

He said state’s attorneys support efforts to track the costs of various sentencing options, and to come up with metrics that might help determine how “successful” various sentences are.  But he said issues of cost should be used to shape policy, not to influence the length of a sentence in a specific case.

“If a judge was otherwise going to give someone life in prison for a horrible crime, would it be appropriate to give them less than that solely because of the cost?” Kranichfeld said. “On lower-level cases, it’s the same sort of issue. Would it be appropriate for a judge to give someone 20 days in jail if he or she thought 30 days in jail was appropriate and equitable, simply because the 10 extra days is going to cost more?”

Sears said the issue of price shouldn’t play a role in sentencing for violent crimes.
“But it maybe should have some impact on some crimes that are nonviolent in nature, which is an area we’ve been working over the past eight years trying to lower recidivism,” Sears said.  “OK, I can put this baggy-pant kid in jail for awhile and it’s going to cost me $75,000, or I can put him in drug treatment and it’ll cost me $10,000. If he’s been breaking into cars and stealing stuff, you need a punishment. But with such limited resources now, maybe cost ought to be a factor in what you want to do with him.”...

Defender General Matt Valerio, who oversees a public defense system that represents the vast majority of defendants in criminal cases, said lawyers in his office have in the past sought to use cost as a factor in sentencing.  In every case, Valerio said, they have “roundly been … shot down.”

Valerio said cost should be a factor in sentencing, especially in instances when courts are weighing retribution versus rehabilitation.  “If you feel like you want to take out society’s anger with a situation on a person, rather than getting them a rehabilitative sentence, then we ought to know what that’s going to cost so you know how much you’re going to spend for society to impose its punishment,” he said.

More proof mandatory sentencing laws are never really mandatory and can enhance disparities

One typical argument for mandatory sentencing provisions, whether in the form of statutory minimums or rigid guideline structures, is that they ensure all persons who commit a certain kind of crime will be sure to get a certain kind of sentence. But even if one believes such one-size-fits-all approach to sentencing can be justified normatively in some settings, real-world evidence reveals again and again and again that criminal justice actors will devise various ways (some hidden, some in the open) to avoid consistent application of these mandates. The latest proof of this reality appears in this lengthy article from yesterday's New York Times, which is headlined "Prison Isn’t as Mandatory as State’s Gun Laws Say." Here are excerpts:

The last time New York State’s gun laws were tightened, Mayor Michael R. Bloomberg rolled out a graphic reminder of what would happen to anyone caught carrying a loaded, illegal weapon. “Guns = Prison,” public service posters proclaimed categorically.  In 2006, the mandatory prison sentence was increased to 3.5 years from 1 year.

Five years later, though, that equation seemed decidedly more equivocal.  In 2011, the latest year for which sentencing statistics are available, fewer than half the defendants who had been arrested for illegal possession of a loaded gun in New York City received a state prison sentence, according to an analysis of criminal justice statistics by the mayor’s office.  In the Bronx, as few as 31 percent were imprisoned. In Brooklyn the rate was 41 percent; in Staten Island it was 47 percent; in Manhattan it was 68 percent; and in Queens it was 76 percent.

Still, the proportion of defendants sentenced to prison represents an improvement over previous years, said John Feinblatt, the mayor’s chief policy adviser and criminal justice coordinator.  “Before the new law in 2006, which required anyone convicted of felony possession of an unlicensed loaded gun to serve three and a half years, the prison rate was 28 percent,” he said.  “We’ve made a lot of progress.”

But the fact that only half the suspects arrested wind up in state prison also demonstrates that the prerogatives of prosecutors and judges still create a lot of wiggle room, particularly in cases that are weaker or have mitigating circumstances.   Mr. Feinblatt said the laws had what he called a “gigantic loophole”: prison sentences are mandatory except where the interests of justice would dictate otherwise. “You could drive a Mack truck through that,” he said.

Sometimes, he said, prosecutors reduce the charges appropriately as a result of plea bargaining, which spares the time and expense of going to trial in a marginal case, as when a weapon is found in a car carrying several people and it is difficult to prove who had physical possession, or the seizure is subject to constitutional challenges over its reasonableness.  In pressing for a stricter assault weapons ban last month, Gov. Andrew M. Cuomo said the law had “more holes than Swiss cheese.”

Even some of the more stringent assault weapons provisions rushed through the Legislature last week, while raising minimum penalties, have left some prosecutors puzzled.  For example, the new law says those penalties “shall” be imposed, not “must be.”  The law also leaves some latitude if a judge, “having regard to the nature and circumstances of the crime and to the history and character of the defendant,” finds that meting out consecutive sentences for multiple offenses “would be unduly harsh and that not imposing such sentence would be consistent with the public safety and would not deprecate the seriousness of the crime.”

Richard A. Brown, the district attorney in Queens, has taken the word “mandatory” more literally.  “The statistics bear out the effectiveness of the supply-and-demand strategy that we have been following for some time here in Queens,” he said.  “On the one hand, we aggressively go after the gun supply by going after those who traffic in illegal weapons, and on the other hand we concentrate on controlling the demand for illegal guns by making it clear that if you illegally possess a gun in Queens County, there is a very strong likelihood that you are going to state prison.”...

The ratio of arrests to prison sentences is only one measure of the law’s effectiveness.  By another measure, of the 448 defendants sentenced in New York State in 2011 after conviction on the top illegal gun possession charge, 437 received a term of at least three and a half years.  That same year, 3,018 people were arrested on that charge in the state. State Division of Criminal Justice Services officials caution that comparisons between arrests and convictions can be imprecise because not all the cases are adjudicated in one calendar year.

Steven Reed, spokesman for the Bronx district attorney, said the comparison of arrests and prison sentences of three and a half years also did not account for the number of shorter prison sentences imposed after guilty pleas, or after the many convictions in the cases that prosecutors chose to try.  “When those numbers are included, the incarceration rate for gun cases in the Bronx is nearly 85 percent,” he said.  (In Queens that rate is 98 percent.)...

Still, Mr. Feinblatt, the mayor’s criminal justice coordinator, suggested that the 50 percent mandatory minimum imprisonment rate remained too low.  “Maybe I can’t answer what should it be,” he said, “but when I look and see that one borough is doing 76 percent, I certainly see what it can be.”

Though a bit confusing in its data reporting, this article still is so very telling as to how the "prerogatives of prosecutors" ultimately determine whether and how mandatory sentencing provisions are applied and how the policies and practices of different local prosecutors can have more profound impact on sentencing outcomes in the shadow of mandatory sentencing laws than any other factor. And the final comment by the mayor’s criminal justice coordinator here is especially telling when he says he "can’t answer what should" be the imprisonment rate for offenders who break a law which is supposed to indicate a legislative and executive commitment to the principle that 100% of persons who commit a certain crime should get prison time.

Though sophisticated criminal justice participants already know this story well, this article provide still more evidence about the real import and impact of so-called mandatory sentencing laws: they dramatically impact the power of prosecutors to control sentencing outcomes and thus increase prosecutors' leverage to shape all prior stages of the criminal justice system. In turn, unless and until the discretionary decisions of prosecutors are subject to greater regulation, scrutiny, accountability and review, mandatory sentencing laws are likely to enhance (and hide from view) sentencing disparites.

Big business joins sentencing reform bandwagon in Texas

A telling and important sign of modern sentencing reform times can be found in this recent article from the Austin American Statesman, which is headlined "Big-business lobby enters fray on criminal justice reforms."   Here is how the article gets started:

In a significant shift in lobbying clout, Texas’ most powerful business group has decided to make criminal-justice reforms a key focus of its priorities for legislative action, seeking ways to spend taxpayer money more efficiently and to improve the state’s economic future.

Bill Hammond, president of the Texas Association of Business, said the group plans to push to expand successful rehabilitation and community-based corrections programs; to change Texas’ drug-sentencing laws to put more low-level offenders in local treatment programs and reduce penalties for small amounts of drugs; and to modify state licensing laws that keep some ex-convicts from ever becoming certified for various trades.

“We’re sending too many people to the slammer,” Hammond said. “The taxpayers and the business community are both being harmed.”

On Wednesday, the business group will meet to plan its strategy to persuade the Legislature to enact changes that Hammond said are designed to keep more low-level, nonviolent lawbreakers on probation and in treatment and rehabilitation programs in their communities, “rather than sending them all to Huntsville.”

The entry of an influential lobby group such as TAB — which represents many of the state’s largest employers — promises to change the likelihood that significant reforms could pass into law. It could also portend a showdown with some victims’ rights groups who lobbied for passage of many of the tough-on-criminals measures of the past 20 years.

Even so, the move is part of a national trend just beginning to emerge that has seen business executives weighing in on justice reforms — another sign that the tough-on-crime era, which saw a wave of “three-strikes” laws that put felons away for life and prison funding that was focused mostly on punishment, has ended.

Business leaders from Florida to Kentucky to Oregon have endorsed corrections reforms on limited issues within the past year.  But TAB’s new role could be the biggest entry by a business group into systemic justice reform.

I have long viewed incarceration as a costly and not-always-cost-effective public safety expenditure; it is nice to see an important big business lobbying group in what is thought to be America's toughest state to be in agreement and committed to sentencing reform efforts.

"African Americans suffer from high rates of incarceration and crime. Here’s how to drastically reduce both."

The title of this post is the provocative subheading of this lengthy new feature article in the latest issue of Washington Monthy. Authored by Professor Mark Kleiman, the article's main headline is "A New Role for Parole," and here is how the must-read piece starts and ends:

American crime rates, especially violent crime rates, and American incarceration rates are twin national disgraces.  We have five times the homicide rate and five times the incarceration rate of other economically advanced countries.  Both crime and incarceration are appallingly concentrated among poor African Americans; in the same neighborhoods where homicide is the leading cause of death for young men, more than half of those men will do prison time before they turn thirty.

The concentration of incarceration by race is by now a well-worn topic.  Some activists and scholars allege a concerted effort to replace older forms of racial oppression with the penitentiary.  The concentration of incarceration by social class is less well known, but no less worrisome.

What that critique leaves out is the concentration of crime.  Violent crime has fallen 67 percent from its peak in the early 1980s and early ’90s, but remains more than twice as common as it was before the great crime wave of the ’60s.  And crime is just as concentrated as incarceration: blacks are about six times as likely as whites to be imprisoned, and also about six times as likely to be murdered.  Almost all of those homicides are intraracial.  The Crips and the Bloods killed more African Americans in the last quarter of the twentieth century than the Ku Klux Klan killed in its entire history. Homicide rates have fallen sharply over the past two decades, but that may have more to do with improved shock-trauma medicine than with reduced criminality; the rate of gunshot wounds has not fallen.

The actual bloodshed may not be the worst of it.  The costs of crime are both enormous and underappreciated, because they consist primarily not of the direct losses to victims of crimes but of the costs people and businesses incur, and inflict on one another, in attempting to avoid victimization.  Every store that moves away from a poor neighborhood for fear of robbery takes with it both services and jobs, leaving the neighborhood that much poorer and more socially isolated....

A sensible crime-control agenda would satisfy neither the conservative impulse to punish as many people as possible as severely as possible nor the liberal impulse to substitute services for coercion and social reform for law enforcement.  Liberals will have to swallow the idea that improved coercion is as necessary as improved conditions. Conservatives will have to swallow the ideas that punishment is a cost and not a benefit and that the measure of the efficacy of a threat is how often it does not need to be carried out....

Criminal justice institutions need to give crime control priority over institutional comfort and habit. Public and nonprofit agencies that do not have crime control in their mission statements need to acknowledge that they are nonetheless in the crime-control business, whenever their actions and omissions can make the crime problem better or worse.

The bad news is that current policies leave us with unnecessarily and unforgivably high levels of both crime and incarceration. The good news is that we now know how to do better.

This same issue also has this lengthy piece by Professor Glenn Loury with this headline and subheading: "Prison’s Dilemma: Even if every convict were rightly sentenced, America’s vast, racially skewed incarceration system would still be morally indefensible."

Notable new research exploring connections between incarceration and mental health

Via The Crime Report, I just learned that the December 2012 issue of the Journal of Health and Social Behavior has two notable new research articles concerning links between incarceration and psychiatric disorders. (Having just recently seen Silver Linings Playbook, which I recommend, I am tempted to call these articles companion pieces to that intriguing movie in which criminal justice realities play a more important role than football.)  Here are links to the articles, along with their abstracts:

Jason Schnittker, Michael Massoglia, & Christopher Uggen, "Out and Down: Incarceration and Psychiatric Disorders":

Psychiatric disorders are unusually prevalent among current and former inmates, but it is not known what this relationship reflects.  A putative causal relationship is contaminated by assorted influences, including childhood disadvantage, the early onset of most disorders, and the criminalization of substance use. Using the National Comorbidity Survey Replication (N = 5692), we examine the relationship between incarceration and psychiatric disorders after statistically adjusting for multidimensional influences.

The results indicate that (1) some of the most common disorders found among former inmates emerge in childhood and adolescence and therefore predate incarceration; (2) the relationships between incarceration and disorders are smaller for current disorders than lifetime disorders, suggesting that the relationship between incarceration and disorders dissipates over time; and (3) early substance disorders anticipate later incarceration and other psychiatric disorders simultaneously, indicating selection. Yet the results also reveal robust and long-lasting relationships between incarceration and certain disorders, which are not inconsequential for being particular.  Specifically, incarceration is related to subsequent mood disorders, related to feeling “down,” including major depressive disorder, bipolar disorder, and dysthymia.  These disorders, in turn, are strongly related to disability, more strongly than substance abuse disorders and impulse control disorders. Although often neglected as a health consequence of incarceration, mood disorders might explain some of the additional disability former inmates experience following release, elevating their relevance for those interested in prisoner reintegration.

Kristin Turney, Christopher Wildeman, & Jason Schnittker "As Fathers and Felons: Explaining the Effects of Current and Recent Incarceration on Major Depression":

Dramatic increases in the American imprisonment rate since the mid-1970s have important implications for the life chances of minority men with low educational attainment, including for their health.  Although a large literature has considered the collateral consequences of incarceration for a variety of outcomes, studies concerned with health have several limitations: Most focus exclusively on physical health; those concerned with mental health only consider current incarceration or previous incarceration, but never both; some are cross-sectional; many fail to consider mechanisms; and virtually all neglect the role of family processes, thereby overlooking the social roles current and former prisoners inhabit.

In this article, we use stress process theory to extend this research by first considering the association between incarceration and major depression and then considering potential mechanisms that explain this association. Results from the Fragile Families and Child Wellbeing Study (N = 3,107) show current and recent incarceration are substantially associated with the risk of major depression, suggesting both immediate and short-term implications.  In addition, consistent with stress proliferation theory, the results show the well-known consequences of incarceration for socioeconomic status and family functioning partly explain these associations, suggesting the link between incarceration and depression depends heavily on the consequences of incarceration for economic and social reintegration, not only the direct psychological consequences of confinement.

How do puppy rapists get treated in prison?

It is often reported that child rapists are often treated as pariahs even among the most hardened criminal is prison.   Consequently, this stunning local sentencing story prompted the (serious?) question in the title of this post. The article — which has an ending that led me to double-check it wasn't from The Onion — is headlined "N.Y. super who had sex with dog gets prison."  Here are the details:

An apartment building superintendent who was caught on tape entering a unit and having sex with the tenant's puppy was sentenced to prison Tuesday.

Kujtim Nicaj, 44, was sentenced Tuesday by Westchester County Judge Barry Warhit to 6.5 years in prison and 7 years' probation after pleading guilty in October 2012 to burglary and sexual misconduct charges.  "This case was unusual to say the least," Warhit said.  "You exhibited cruelty to the animal.  Your behavior was inexcusable."

Alan Kachalsky thought something in his apartment was amiss for months — blinds drawn that had not been, a window left open that he had left shut.  But nothing ever went missing, and, fearing he may come off as paranoid, Kachalsky never went to the police. Instead, he set up three cameras and waited.  Kachalsky shared his apartment at the Rye Colony Cooperative Apartments with a male Labrador puppy, Gunner, who, unbeknownst to Kachalsky, was the real target of the burglar.

The burglar, it turned out, wasn't there to steal anything, Kachalsky said Tuesday, but for something far more unimaginable.  Kachalsky, an attorney, said it never occurred to him that someone was returning to have sex with his dog.  Kachalsky turned over the video to police, who questioned and arrested Nicaj on Feb. 9, 2012, for sex acts against the 1-year-old dog committed the day before.

Nicaj, who wore a blue-striped gray sweater and blue jeans Tuesday in Westchester County Court, spoke little in court before his sentence, only telling Warhit that he had nothing to say.  Steven Davidson, a lawyer for Nicaj, indicated after the proceedings that he might appeal the sentence, calling it unfair.  "We'll do everything we can to protect his interests," Davidson said, adding that Nicaj was doing well under the circumstances, "other than what his family is going through."...

Nicaj, a 15-year resident of Rye, worked at the apartment complex for six years before his arrest, and Kachalsky said that the super seemed like a normal guy until one day, a few weeks before Kachalsky had set up the cameras, when the two had an odd run-in outside Kachalsky's apartment.   "He said he had stopped by to check the gas," Kachalsky said, even though the gas had been on for some time.

Finally, Kachalsky set up three cameras, which provided indisputable evidence — "a naked man, in your apartment, having sex with your dog," Kachalsky said.  "I was wondering why someone would keep coming in here," Kachalsky said. "I never noticed anything to make me think."

A subsequent examination of Gunner by a veterinarian revealed no permanent physical damage, Kachalsky said, and the vet even expressed surprise that the soon-to-be 2-year-old pup could still interact normally with men.  The dog had always eagerly greeted visitors at the door, Kachalsky said, and still does, but on the video, with Nicaj, Gunner was abnormally passive.  "Gunner just sat on the couch," Kachalsky said.  "He did not get up."

Now, Kachalsky said, Gunner is mostly back to his old self.  He turns 2 years old Jan. 25. "Anytime anyone comes in, he's all over 'em," Kachalsky said.  "He's a terrific dog."

Given the apparent happy ending for the victims of this crime, I am not sure whether to encourage off-color jokes about this case or to engage in serious analysis of the prosecution of this peculiar puppy rapist.  Thus, I pose this dilemma to readers:

• should we ponder, rigorously or comically, whether and how the victim dog's tender age impacted the seemingly severe sentencing outcome?

• should we worry, genuinely or jokingly, whether there are other puppy victims of this defendant who lacked the courage (and ability) to speak up about their abuse?

• should we question, meaningfully or mirthfully, what the human victim here has now done with the contraband puppy porn than he inadvertently produced?

• should we wonder, seriously or facetiously, whether upon release from prison the offender will be barred from going within 1000 feet of a pet store without prior approval of his probation officer?

"Mass Incarceration in Three Midwestern States: Origins and Trends"

The title of this post is the title of this new paper now on SSRN authored by the ever-prolific Professor Michael O'Hear. Here is the abstract:

This Article considers how the mass incarceration story has played out over the past forty years in three medium-sized, Midwestern states, Indiana, Minnesota, and Wisconsin.  The three stories are similar in many respects, but notable differences are also apparent.  For instance, Minnesota’s imprisonment rate is less than half that of the other two states, while Indiana imprisons more than twice as many drug offenders as either of its peers.

The Article seeks to unpack these and other imprisonment trends and to relate them to crime and arrest data over time, focusing particularly on the relative importance of violent crime and drug enforcement as drivers of imprisonment growth.

"How sentencing reform is saving SC taxpayers money"

The title of this post is the headline of this lengthy local article which is, I think, a telling sign of the modern sentencing times. The sub-headline of the article is "Fewer offenders are in jail, more on probation," and the main headline emphasizes savings for taxpayers rather than threats to public safety. It is truly a brave new sentencing reform world, and this article gets started this way:

In 2010 – with the state Department of Corrections running a $27 million deficit – South Carolina projected its prison population would swell by 3,200 inmates by 2014, costing taxpayers $175 million to make room for those inmates and $66 million a year to take care of them.

Instead, the number of inmates imprisoned has dropped by more than 2,700, and the Corrections Department has closed two prisons. And taxpayers saved $3 million in 2012 alone.

The reason, officials say, is sentencing reform -- a sweeping 2010 bill that radically changed how South Carolina treats its criminals. Written by a Democratic state senator and signed by a Republican governor, the law strengthened penalties for violent crimes while offering alternative sentences for nonviolent crimes. Passage of the law put South Carolina “at the forefront of states advancing research-driven criminal justice polices,” according to the Pew Center on the States.

“You see a lot of legislation that’s passed that seems to be tough on crime,” said state Sen. Gerald Malloy, D-Darlington, author of the sentencing reform. “We had to get smart on crime.”

But one state department’s budget blessing is another agency’s fiscal burden. While the prison population is falling, the number of South Carolinians on probation is soaring. Agents at the state Department of Probation, Parole and Pardon services now are supervising 1,409 more offenders than they were two years ago. Each probation agent supervises an average of 97 cases, far above the national average of 50 cases.

To help, Gov. Nikki Haley wants to give the agency $1.2 million in additional money next year to hire 25 new probation agents. It is part of the probation department’s three-year plan to hire 156 new agents to bring the average caseload down to 80 cases per agent.

State lawmakers have $263 million in “new” money – money that should recur in future budget years – to spend in the 2013-14 budget. But nearly all of that will be gobbled up by the state’s Medicaid health insurance program for the poor and disabled, and increases in the cost of state employees’ health insurance.

More money for probation services must be a priority, some state officials say. They say the state is just beginning to see the benefits of sentencing reform. Probation, Parole and Pardon Services plays a crucial role in making the reforms work, they add, and not funding it could set the reforms back.

"Why Has Obama Pardoned So Few Prisoners?"

The title of this post is the headline of this new commentary by Sasha Abramsky which will appear in the January 28, 2013 issue of The Nation. (Hat tip: How Appealing.) The piece gives particular attention to the sad case of my former habeas client Weldon Angelos, and here are excerpts:

Six and a half years ago, I drove out to Lompoc federal penitentiary in the hills outside Santa Barbara to interview Weldon Angelos, a young man who had received the improbable sentence of fifty-five years without parole for selling marijuana, ostensibly while carrying a small pistol in an ankle holster.

A rap artist from Salt Lake City and friend to Napoleon and other eminences of the hip-hop world, Angelos had been ensnared by an informant in a series of undercover marijuana purchases that reeked of entrapment. What might have been a two-bit state pot case became a high-stakes federal case. When Angelos — who denied carrying a gun when dealing — refused to enter a guilty plea, the feds played hardball, piling more indictments onto the original charge.  In December 2003, more than a year after he had been arrested, Angelos was found guilty on several counts, though he was acquitted on others.  Because of mandatory minimum statutes linked to the firearms charges, the presiding judge — a George W. Bush appointee named Paul Cassell — was left with no discretion at sentencing. After asking the prosecuting and defense attorneys to advise him on the constitutionality of the sentence, a distraught Cassell handed down the fifty-five-year term, a punishment he called “unjust, cruel and even irrational.”  In his opinion, he urged then-President Bush to pardon the young father of three and right a clear judicial wrong.

Angelos was 23 when he was arrested.  He was in his mid-20s when I met him. It was such an obvious injustice that I thought the odds were pretty good he’d be out of prison by the time he was 30.  Surely one or another president would pardon him or commute his sentence, either reducing it or allowing him to be released on time served.

But today Angelos is in his early 30s and fast approaching his ten-year anniversary behind bars. Bush didn’t pardon him.  Neither has President Obama — despite earlier pleas on Angelos’s behalf from several ex-governors, dozens of ex–federal prosecutors and judges, and four US attorneys general; despite growing concerns over mandatory minimum sentences from members of Congress; despite the pledge by onetime Salt Lake City mayor and civil rights lawyer Rocky Anderson to “do anything I can to remedy this unbelievable injustice”; despite The Washington Post and other leading publications urging clemency; despite the fact that, at least rhetorically, the Obama administration has moved away from the sensational, fearmongering tactics of the drug war, and that drug czar Gil Kerlikowske doesn’t even like to talk about a “war on drugs”; despite the fact that in late 2012 Obama said the feds had “bigger fish to fry” than prosecuting marijuana users in states moving toward legalization; despite the fact that one state after another has rolled back its most draconian mandatory minimum sentences for small-time drug users and dealers....

So why hasn’t Obama done the right thing? Could it be that Angelos has just gotten lost in the shuffle? Possibly — but if that’s the reason, there would be evidence that Obama has used his pardon and commutation powers wisely in other cases. Unfortunately, that’s not true....

A president who talks the talk about more sensible, nuanced drug policy, and whose oratory frequently invokes what is best in the American political imagination, has shown himself remarkably reluctant to use one of the most important of presidential prerogatives—the power to right judicial wrongs. “This president,” says Anderson, “has been unbelievably timid and disinclined to do justice in cases that scream out for commutation.  There’s not a lot of moral or political fortitude in play.”...

In the long run, when it comes to preventing future unjust sentences like the one given Angelos, Congress and state legislatures should be the ones to roll back the excesses of the drug war.  And there’s no doubt that Obama, a constitutional law scholar, understands how much more powerful legislation is than the willful, even capricious, pardon function of the president. (After all, Clinton was excoriated for what appeared to be pardons issued in exchange for campaign and other contributions.  And Bush was heavily criticized for commuting the prison term of his disgraced adviser Lewis Libby.)  But when there’s a massive miscarriage of justice — as has happened all too often during the forty years of the “war on drugs” — the president’s ability to pardon or commute sentences is vital.

How does one tell Weldon Angelos’s kids that their father will not only never walk them to school but that he will never walk their children to school?  That if he survives fifty-five years in prison, he might get out just in time to walk his great-grandchildren to school. It’s unconscionable that such a sentence should stand.  If Angelos and other drug war prisoners with absurd sentences remain in prison through Obama’s second term, it will be a stain on the president’s legacy.

"Barack the Unmerciful: Obama's amazingly stingy clemency record"

The title of this post is the headline of this new commentary by Jacob Sollum over at Reason.com. Here are excerpts:

Will Barack Obama go down in history as our least merciful president? With less than two weeks to go in his first term, this reputedly progressive and enlightened man has a strong shot at winning that dubious distinction.

December, a traditional season for presidential clemency, has come and gone, and still Obama has granted just one commutation (which shortens a prisoner’s sentence) and 22 pardons (which clear people’s records, typically after they've completed their sentences). Barring a last-minute flurry of clemency actions, his first-term record looks weaker than those of all but a few previous presidents.

Which of Obama’s predecessors managed to make less use of the clemency power during their first terms? According to numbers compiled by P.S. Ruckman Jr., a professor of political science at Rock Valley College in Rockville, Illinois, just three: George Washington, who probably did not have many clemency petitions to address during the first few years of the nation’s existence; William Henry Harrison, who died of pneumonia a month after taking office; and James Garfield, who was shot four months into his presidency and died that September.

With the exception of Washington's first term, then, Obama so far has been stingier with pardons and commutations than any other president, especially when you take into account the growth of the federal penal system during the last century, the elimination of parole, the proliferation of mandatory minimums, and the concomitant increase in petitions. This is a remarkable development for a man who proclaims that "life is all about second chances" and who has repeatedly described our criminal justice system as excessively harsh....

The one significant way in which Obama followed through on this rhetoric after being elected was by supporting 2010 legislation that shrank the irrational sentencing gap between crack cocaine and cocaine powder (although there was not much political risk in doing so, since the bill passed Congress almost unanimously). But the Fair Sentencing Act did not apply retroactively, and Obama has used commutation to help just one of the thousands of crack offenders serving mandatory minimums that nearly everyone now admits are unjust.

More generally, Obama has granted clemency petitions at a lower rate than all of his recent predecessors. The odds of winning a pardon from Obama so far are 1 in 59, compared to 1 in 2 under Richard Nixon, 1 in 3 under Gerald Ford and Jimmy Carter, 1 in 5 under Ronald Reagan, 1 in 10 under George H.W. Bush, 1 in 5 under Bill Clinton, and 1 in 13 under George W. Bush, per Ruckman's calculations. The odds for commutation are even longer: 1 in 6,631 under Obama, compared to probabilities under the seven preceding presidents ranging from 1 in 15 (Nixon) to 1 in 779 (Bush II).

As Obama embarks upon a second term, he deserves credit for this amazing accomplishment: He has made Richard Nixon look like a softie.

As Plata ruling welcomed, California seeks modification of prison population reduction order

This front-page article in today's Sacramento Bee, headlined "Halt in inmate releases sought," reports on a significant development in the multi-year -- is it now multi-decade? -- litigation over prison population in California. Here are the details:

Claiming that the state has made substantial progress in solving its prison overcrowding problem, California officials asked a federal court late Monday to dismiss its requirements for huge reductions in inmate populations.

Gov. Jerry Brown's administration, filing court documents just two hours before the court-ordered deadline to explain how the state will reduce inmate populations, said progress made so far is sufficient to warrant the federal court withdrawing its order.   It also said the court-ordered reductions could needlessly force the state to release dangerous or violent inmates.

"The overcrowding and health care conditions cited by this Court to support its population reduction order are now a distant memory," the court papers state.  "California's vastly improved prison health care system now provides inmates with superior care that far exceeds the minimum requirements of the Constitution.

"In the years since the court issued the current population cap order, the state has dramatically reduced the prison population, significantly increased capacity through construction, and implemented a myriad of improvements that transformed the medical and mental health care systems."

A three-judge federal panel had ordered the state to cut population to 137.5 percent of capacity, down from nearly double the prison capacity, and said such reductions were necessary to maintain proper physical and mental health care in the 33 adult prisons.

But Brown's administration said in papers filed late Monday that it has achieved sufficient reductions already through a series of efforts.   "Therefore, this Court must vacate the 137.5 percent population cap order issued when it was believed that quality health care could not be provided at a higher population density," the state contended.

"The population in the state's 33 prisons has been reduced by over 24,000 inmates since October 2011 when public safety realignment went into effect, by more than 36,000 inmates compared to the 2008 population in the record at the evidentiary hearing, and by nearly 42,000 inmates since 2006 when plaintiffs moved to convene the three-judge court....

The court filing was strategically timed.  Facing a Monday deadline at midnight, corrections officials originally scheduled a telephone conference call for this morning to discuss the issue.  But late Monday they scrapped that and announced the governor would hold a press conference this morning to trumpet the effort.   Brown has been at the forefront of inmate reduction efforts since taking office.  The state prison system has been under siege for decades from prisoner lawsuits and federal court orders that have found the state was holding inmates in unsafe conditions.

A year ago, facing unprecedented orders from the federal courts and the U.S. Supreme Court to take action, the Brown administration pushed through its "realignment" plan to shift low-level, nonviolent offenders to the counties. Since then, prison populations have fallen to about 150 percent of capacity, a level still above the court-ordered mandate but one that officials have said they could manage to further reduce.

Monday night, state officials claimed the 137.5 percent limit "cannot be achieved without the early release of inmates serving time for serious or violent felonies."

As stressed in the title of this post, all the rulings with orders for reductions in the California prison population coming from lower courts and upheld by the Supreme Court indicated that California could seek future modifications of the order if and when it took significant steps to remedy the extreme overcrowding problems resulting in unconstitutional prison conditions.  Even without reading the new court papers filed by California, I can say without reservation that the state has taken significant steps in response to the federal courts orders; in turn, this request for a modification in the order seems fully justifiable.

Of course, whether federal courts will embrace or resist this new state to modify existing prison population reduction orders is a distinct question from whether the state's modification request is justifiable.  And it is hard to make a prediction on this front without reading all the papers filed already and sure to be filed later in this litigation.  (That said, I have an inkling some folks may be eager to comment on what has transpired since the SCOTUS Plata ruling without waiting for a chance to read all the latest and future filings.)

California medical marijuana provider gets 10-year mandatory-minimum federal prison term

As reported in this local story, headlined "Medical marijuana: Aaron Sandusky sentenced to 10 years in federal prison," a high-profile case from federal court in California has resulted in a significant prison term today as a result of federal mandatory minimum sentencing laws.  Here are the basics:

Aaron Sandusky has been sentenced to 10 years in federal prison.  The former G3 Holistic Inc. medical marijuana dispensary president was sentenced today in U.S. District Court in Los Angeles for operating medical marijuana dispensaries in Upland, Colton and Moreno Valley.

"In this case, as the defendant was warned, the court's hands are tied," U.S. District Judge Percy Anderson said. "Whether you agree with the defendant's position or not."

Sandusky was found guilty in October of conspiracy to manufacture marijuana plants, to possess with intent to distribute marijuana plants, and to maintain a drug-involved premises; and one count of possession with intent to distribute marijuana plants, according to the U.S. Department of Justice.... 

"I want to apologize to those with me and their families who have been victimized by the federal government who has not recognized the voters of this state," Sandusky said in court.

State voters approved Proposition 215 in 1996, allowing medical marijuana in the state, while state Senate Bill 420, which details the amount of marijuana a person can possess for medical purposes, prevents cities and counties from banning marijuana dispensaries. But federal law says marijuana -- medical or otherwise -- is illegal. "I want to apologize to the families who are suffering and who have to go through this," Sandusky said.  "There are no winners here.  Not the state, not the federal government, not the patients who need medical marijuana."...

Sandusky turns 43 on Tuesday.  "It's not going to be a real happy birthday," G3 Holistic patient Christopher Kenner said.  "I hate to think this is the last time I'll see him."

Federal authorities in June arrested Sandusky and additional operators of the Inland Empire chain of marijuana stores and others associated with a warehouse, where marijuana was cultivated for the stores, on federal drug trafficking charges.  A six-count indictment returned by a federal grand jury charged three owners and operators of G3 Holistic stores. The indictment also charged three people who allegedly worked at a large grow operation in an Ontario warehouse that supplied marijuana to the three G3 stores.

I presume that Aaron Sandusky has preserved all of his potential appellate issues concerning his trial and sentencing and that he will pursue an appeal in the Ninth Circuit. Consequently, I doubt today's federal sentencing is the last chapter in his federal prosecution story.

"Have We Lost the War on Drugs?"

The title of this post is the headline of this lengthy essay which appeared in Saturday's Wall Street Journal and was authored by Gary Becker and Kevin Murphy. The subheading to the piece summarizes its themes: "After more than four decades of a failed experiment, the human cost has become too high. It is time to consider the decriminalization of drug use and the drug market." Here are just a few excerpts:

The direct monetary cost to American taxpayers of the war on drugs includes spending on police, the court personnel used to try drug users and traffickers, and the guards and other resources spent on imprisoning and punishing those convicted of drug offenses. Total current spending is estimated at over $40 billion a year.

These costs don't include many other harmful effects of the war on drugs that are difficult to quantify. For example, over the past 40 years the fraction of students who have dropped out of American high schools has remained large, at about 25%. Dropout rates are not high for middle-class white children, but they are very high for black and Hispanic children living in poor neighborhoods. Many factors explain the high dropout rates, especially bad schools and weak family support. But another important factor in inner-city neighborhoods is the temptation to drop out of school in order to profit from the drug trade.

The total number of persons incarcerated in state and federal prisons in the U.S. has grown from 330,000 in 1980 to about 1.6 million today. Much of the increase in this population is directly due to the war on drugs and the severe punishment for persons convicted of drug trafficking. About 50% of the inmates in federal prisons and 20% of those in state prisons have been convicted of either selling or using drugs. The many minor drug traffickers and drug users who spend time in jail find fewer opportunities for legal employment after they get out of prison, and they develop better skills at criminal activities....

The paradox of the war on drugs is that the harder governments push the fight, the higher drug prices become to compensate for the greater risks. That leads to larger profits for traffickers who avoid being punished. This is why larger drug gangs often benefit from a tougher war on drugs, especially if the war mainly targets small-fry dealers and not the major drug gangs. Moreover, to the extent that a more aggressive war on drugs leads dealers to respond with higher levels of violence and corruption, an increase in enforcement can exacerbate the costs imposed on society....

Usually overlooked in discussions of the effects of the war on drugs is that the illegality of drugs stunts the development of ways to help drug addicts, such as the drug equivalent of nicotine patches. Thus, though the war on drugs may well have induced lower drug use through higher prices, it has likely also increased the rate of addiction. The illegality of drugs makes it harder for addicts to get help in breaking their addictions. It leads them to associate more with other addicts and less with people who might help them quit.

Most parents who support the war on drugs are mainly concerned about their children becoming addicted to drugs rather than simply becoming occasional or modest drug users. Yet the war on drugs may increase addiction rates, and it may even increase the total number of addicts....

The decriminalization of both drug use and the drug market won't be attained easily, as there is powerful opposition to each of them. The disastrous effects of the American war on drugs are becoming more apparent, however, not only in the U.S. but beyond its borders. Former Mexican President Felipe Calderon has suggested "market solutions" as one alternative to the problem. Perhaps the combined efforts of leaders in different countries can succeed in making a big enough push toward finally ending this long, enormously destructive policy experiment.

"Crime, Punishment, and Politics: An Analysis of Political Cycles in Criminal Sentencing"

The title of this post is the title of this new paper by Carlos Berdejo and Noam Yuchtman now available via SSRN.  Here is the abstract:

Whether judges respond to political pressure is an important question occupying social scientists. We present evidence that Washington State judges respond to such pressure by sentencing serious crimes more severely.  Sentences are around 10% longer at the end of a judge's political cycle than the beginning; deviations above the sentencing guidelines increase by 50% across the electoral cycle.  We conduct robustness and falsification exercises and distinguish between judges' election cycles and other officials' by exploring non-linear effects of electoral proximity.  Our findings inform debates over judicial elections, and highlight the interaction between judicial discretion and the influence of judicial elections.

"Incarceration's Incapacitative Shortcomings"

The title of this post is the title of this thoughtful essay by Kevin Bennardo, which is available via SSRN. Here is the abstract:

Incapacitation is the removal of an offender’s ability to commit further crime. This essay identifies two distinct types of incapacitative effects: offense-specific incapacitation and victim-specific incapacitation.  The former focuses on limitations on the offender’s range of conduct.  The latter focuses on limitations on the offender’s access to particular populations.

As a punishment, incarceration incapacitates quite incompletely.  Because imprisonment does not render inmates totally unable to commit crime, it fails to achieve complete offense-specific incapacitation.  And, because it merely substitutes one set of potential victims for another, imprisonment fails on the total victim-specific incapacitation front as well.  Instead, imprisonment achieves partial offense-specific and partial victim-specific incapacitation by inhibiting prisoners from committing certain offenses and separating inmates from certain populations.  When the incapacitative benefit of incarceration is discussed, however, it is not usually described in such a circumscribed way.  Rather, commentators often state that imprisonment fully incapacitates by removing offenders from “society.”  Such statements, which implicitly discount prison crime and its victims to zero, are factually inaccurate and dehumanizing.  To avoid such inaccuracy and inadvertent discounting, this essay endeavors to accurately describe the offense-specific and victim-specific incapacitative benefits and limitations of incarceration.