Monday, July 24, 2017

"Nine Lessons About Criminal Justice Reform: What Washington can learn from the states"

The title of this post is the headline of this extended essay by Bill Keller published last week at The Marshall Project. I recommend the piece in full, and here are excerpts focused on some of Bill's most sentencing-specific lessons:

“Reform” is one of those ambiguous words that mean different things to different people.  I think of reform as something that aims to reduce the numbers of Americans who are removed from society and deprived of their freedom, and to do it without making us less safe.  In 1972, when I was starting my newspaper life at The Oregonian, 93 out of 100,000 Americans were in state or federal prisons.  By 2008 the incarceration rate had grown nearly six-fold, to 536 per 100,000, and it has hovered in that vicinity ever since. That’s not counting the hundreds of thousands held in county jails on any given day or those confined in the juvenile justice system or immigrant detention.

Every year about 650,000 of those prisoners are released back into the world.  We know that most of them will be unemployed a year later, and that two-thirds of them will be rearrested within three years.  We have a corrections system that fails to correct.

Here are a few lessons Washington can learn from the states.

Lesson 1: It is possible to reduce incarceration and crime at the same time. ...

Lesson 3: Probably the most effective way to reduce incarceration is not to lock people up in the first place — at least not so many, and not for so long....

Lesson 4: While the front end is important, don’t neglect the back end....

Lesson 5: Be wary of reformers who suggest you can cut incarceration drastically by releasing low-level, nonviolent offenders. ...

Lesson 6: Prison reform doesn’t necessarily mean a huge windfall for taxpayers. ...

Lesson 8: Many states are finding that incentives work better than mandates.

July 24, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (4)

Tuesday, July 18, 2017

"How California Softened its 'Tough-on-Crime' Approach"

The title of this post is the title of this interesting and effective little "policy study" produced by the R Street Institute and authored by Steven Greenhut. Here is its introduction:

California has a long history of pioneering criminal-justice reforms.  From the 1960s to the early 2000s, such reforms mostly toughened the state’s approach to handling criminals, with some of the most significant policy reforms implemented at the ballot box.  California’s past approaches — especially its “three-strikes” law — have become models for other states, although such policies have led to some troubling results.

More recently, as overall crime rates have fallen to levels not seen since the 1960s, the state has led the way both to soften those earlier approaches and to implement innovative policies that reduce sentences for some offenders. This shift has been driven in part by a prison-overcrowding crisis, but public sentiment has also changed over the years.

Given the high costs — both financially and in terms of civil liberties — the state’s incarceration-heavy approach imposed, these changing policies and attitudes are a welcome development.  Many of the tough-on-crime approaches of the past were driven by the state’s powerful law-enforcement lobby and “public safety” unions, who appeared at times more interested in protecting their budgets (and creating new “customers”) than promoting justice.

Not every new proposal is ideal, of course, and California has yet to embrace the kind of wide-ranging reforms in its corrections bureaucracy that have been implemented by Texas, for instance.  The state also has failed to implement significant reforms to its public-employee pension system and has moved away from outsourcing — measures that could help stretch California’s budget, which is burdened by the highest cost in the nation (total and per capita) for running its prison system.  Notwithstanding such costs, California still has an astoundingly high recidivism rate of approximately 65 percent.

This paper seeks to place these shifts in historical context. It examines a few of the most significant reform policies that have passed through the Legislature or been put to voters through the state’s robust initiative process.  As California goes, so goes the nation.  As such, it is worth seeing where the state is headed on this significant issue.

July 18, 2017 in Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (3)

Friday, July 07, 2017

Texas continues to demonstrate how state "smart on crime" reforms can lead to less imprisonment and less crime

This Dallas Morning News article, headlined "With crime, incarceration rates falling, Texas closes record number of lock-ups," highlights why the Lone Star state should be viewed as a shining star for anyone eager to see states find paths to having less crime and less incarceration.  Here are excerpts:

Texas will shutter more prisons this year than it has in any single year in history, a response to the state's tight budget and shrinking inmate population.  In the state's two-year budget, which lawmakers approved in May, the Texas Department of Criminal Justice was ordered to close four prison facilities by Sept. 1.  When all four are closed, tough-on-crime Texas will have shuttered eight prisons in just six years.

Criminal justice reform advocates, agency officials and lawmakers say the closings are possible because of a combination of factors, including falling crime rates and legislative efforts to reduce the number of people who spend time behind bars.  "This is something we have done incrementally over the last decade," said Derek Cohen, deputy director at the Center for Effective Justice at the right-leaning Texas Public Policy Foundation.  "We're not any less safe publicly for that."

The drop in Texas' prison population began around 2007, when lawmakers were faced with an expensive decision.  The state had spent decades and millions of dollars building hulking prison edifices across rural Texas.  Tens of thousands of cells were quickly filling, and without changing the way Texas operated its criminal justice system, the state would soon be forced to spend millions more to house a burgeoning inmate population.

A state known for its lock-'em-up-and-throw-away-the-key approach to crime began to shift its approach.  Instead of erecting more massive prisons, lawmakers invested in diversion programs to help troubled Texans get back on track and avoid incarceration.  They spent more on initiatives to provide services to people whose mental illnesses landed them crosswise with the law.  Lawmakers in 2015 updated a decades-old property crime punishment scheme that had resulted in felony punishments for thieves who had stolen penny-ante items.  "What we saw was almost within 18 months, just an immediate decrease in the number of people sent to state jail on property offenses," said Doug Smith, a policy analyst with the Texas Criminal Justice Coalition.

At the same time, crime rates fell across the state.  Texas Department of Public Safety data shows that crime rates have fallen each year since at least 2012.  The overall crime rate in Texas fell nearly 6 percent from 2013 to 2014.  And it dropped another 4.7 percent the following year.

Texas closed its first prison in 2011 after much hand-wringing.  The Central Unit was a 79-year-old, sprawling behemoth on valuable land in the growing Houston suburb of Sugar Land. The prison population had begun to fall already, dropping 8 percent from 2004 to 2011. Legislators were facing a budget shortfall of up to $27 billion, and closing the Central Unit could save them about $50 million over two years.  For the first time in Texas history, it made political and fiscal sense to close a prison. It turned out, lawmakers were just getting started.

Two years later, they shuttered the Jesse R. Dawson State Jail in Dallas and a pre-parole unit in Mineral Wells.  Earlier this year, the criminal justice department closed a privately operated intermediate sanctions facility in Houston that was right next to Minute Maid Park.  As the closings continued, inmate population continued to drop, from 156,000 in 2011 to about 146,000 today, according to department spokesman Jason Clark....

It's unclear, though, whether the shuttering trend will continue in Texas.  Lawmakers this year did not approve any changes that criminal justice reform advocates said would keep the prison population on the decline.  Among the measures lawmakers rejected were proposals to reduce drug offense penalties and to keep 17-year-olds in the juvenile justice system, as most states do, instead of sending them to adult prisons.

July 7, 2017 in Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2)

Wednesday, June 21, 2017

Notable look at notably tough sentencing patterns in one rural county in Minnesota

Sentencing, like politics, is ultimately always a local story, and this lengthy new MinnPost article takes a deep dive into the notable local sentencing stories of Polk County, Minnesota.  The lengthy article is headlined "Why tiny Polk County sends so many people to prison," and here are excerpts:

If you’re planning to commit a crime in Minnesota, you might want to steer clear of Polk County. This county of 32,000, which hugs the Red River on the North Dakota border, is sparsely populated and largely agricultural, save for East Grand Forks, Crookston and a handful of other small cities set between soybean, wheat and sugar beet fields.

Yet in 2014 it sent more people to prison, per capita, than any other county in Minnesota, a county-by-county analysis of National Corrections Reporting Program data by the New York Times and Fordham University found. That year, the most recent for which data are available, prison admission rates in northwestern Minnesota’s Polk County stick out across the upper Midwest, more closely resembling some of the counties that form a prison belt across the U.S., from Indiana to Kentucky, Missouri Arkansas, Oklahoma, Louisiana and Texas, than it does most of its neighbors.

For every 10,000 Polk County residents, 50 people were admitted to prison in 2014, an increase from 22 per 10,000 residents in 2006 and 39 per 10,000 residents in 2013, among the highest in Minnesota both years. The high prison admissions rate in Polk stands in sharp contrast to lower rates in nearby counties and the Twin Cities: In 2014, 12 per 10,000 residents in Hennepin County went to prison and 19 per 10,000 residents in Ramsey did. Neither rate increased by more than 3 per 10,000 people from 2006.

Why is Polk County sending so many people to prison? Ask Polk County officials what’s behind the high rate of imprisonment, and they’ll likely have an answer for you: drugs.

To some extent, the data bear that out. While for the most part crime and arrest rates were stable between 2006 and 2014 in Polk County, drug crimes are a big exception. Drug crimes went from a rate of 38.6 per 10,000 residents in 2006 to 61.9 per 10,000 residents in 2014. Drug-related arrest rates, likewise, more than doubled, from 25 per 10,000 residents in 2006 to 55 per 10,000 people in 2014....

In Minnesota, how felony offenders are punished depends on where they fall on the Sentencing Guideline Commission’s grid.... In theory, the sentencing guidelines bring uniformity to criminal sentencing in Minnesota’s 87 counties and 10 judicial districts. But there’s some room for discretion on the part of prosecutors and judges built into the system, too. While sentencing guidelines are followed in the vast majority of cases, courts are allowed to impose a softer or harsher sentences “when substantial and compelling aggravating or mitigating factors are present.” In some counties, departures are used more frequently than others.

In Polk County, 14 percent of felony drug offenders between 2006 and 2015 received “aggravated dispositional departures” — usually prison instead of the probation called for in the sentencing guidelines. In Beltrami County and Clay counties, 6 percent and 8 percent did, respectively. Statewide, less than 9 percent of felony drug offenders for whom the sentencing guidelines prescribe probation receive prison....

Kip Fontaine, assistant public defender ... noticed what seems to be a disproportionate number of third-degree charges for drug possession in a school zone or park. A person, say, found to be driving through one of these areas with drugs on them would, in most counties, be charged with this crime in the fifth-degree, a lesser charge, Fontaine said. Not necessarily in Polk. According to the Minnesota Sentencing Guidelines Commission, of 83 people with criminal history scores of zero through three sentenced with third-degree possession in a school zone or park in Minnesota between 2011 and 2015, 36 — nearly half — were in Polk County....

Andrew Larson, the executive director of Tri-County Community Corrections, the government agency that provides probation and detention services in Polk, Red Lake and Norman counties, said he senses a difference in philosophy in Polk County, too. “The Polk County Attorney’s Office is just more aggressive in their prosecution than perhaps what the other counties are, and it’s literally that simple. It’s not a matter of one being right or the other being wrong, it’s just a difference,” he said.

UPDATE: In the comments, federalist astutely suggests noting a similar article about case-processing toughness in a rural mid-west county.  So: New York Times highlights modern rural incarceration realities 

June 21, 2017 in Drug Offense Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (6)

Friday, June 16, 2017

Historic criminal justice reform signed into law in Louisiana, which has historically been highest incarcerating state

As reported in this local article, "bills signed into law Thursday morning by Gov. John Bel Edwards aim to change Louisiana's reputation as the most imprisoned state in the country." Here are some the sentencing details from the press article (though the folks should be sure to check out this summary of the full package of bills which covers an array of other issues including victim services and reentry concerns):

"With this ambitious package, Louisiana is projected to reduce the prison population by 10 percent and save $262 million over the next decade," according to the bills' package summary [available here]. "Seventy percent of these savings — an estimated $184 million — will be reinvested into programs and policies proven to reduce recidivism and support victims of crime."

The legislation signed into law includes:

Senate Bill 139 [which provides] alternatives to incarceration like drug rehabilitation. Expands probation eligibility to third-time nonviolent offenders, as well as first-time, lower-level violent offenders. It also gives opportunities for release. Consolidates eligibility for parole consideration for prisoners convicted of nonviolent, non-sex offenses at 25 percent of sentence served....

Senate Bill 220 [which alters sentencing rules to make sure law] focuses prison space on serious and violent offenders. It does this by removing less serious crimes to the violent crimes list and merging redundant theft and burglary offenses.

Senate Bill 221 [which addresses] repeat offenders by lowering the mandatory minimum sentence for second and third offenses.

Senate Bill 16 [which provides that] most people sentenced to life as juveniles receive an opportunity for parole consideration after serving a minimum of 25 years in prison.

June 16, 2017 in Mandatory minimum sentencing statutes, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (1)

Friday, May 26, 2017

"U.S. Prison Population Trends 1999-2015: Modest Reductions with Significant Variation"

The title of this post is the title of this brief "Fact Sheet" from The Sentencing Project, which gets started this way:

While states and the federal government have modestly reduced their prison populations in recent years, incarceration trends continue to vary significantly across jurisdictions. Overall, the number of people held in state and federal prisons has declined by 4.9% since reaching its peak in 2009.  Sixteen states have achieved double-digit rates of decline and the federal system has downsized at almost twice the national rate.  But while 38 states have reduced their prison populations, in most states this change has been relatively modest.  In addition, 12 states have continued to expand their prison populations even though most have shared in the nationwide crime drop.

Six states have reduced their prison populations by over 20% since reaching their peak levels:

• New Jersey (35% decline since 1999)

• New York (29% decline since 1999)

• Alaska (27% decline since 2006)

• California (26% decline since 2006, though partly offset by increasing jail use)

• Vermont (25% decline since 2009)

• Connecticut (22% decline since 2007)

Southern states including Mississippi, South Carolina, and Louisiana, which have exceptionally high rates of incarceration, have also begun to significantly downsize their prison populations.  These reductions have come about through a mix of changes in policy and practice designed to reduce admissions to prison and lengths of stay.  Moreover, the states with the most substantial prison population reductions have often outpaced the nationwide crime drop.

The pace of decarceration has been very modest in most states, especially given that nationwide violent and property crime rates have fallen by half since 1991.  Despite often sharing in these crime trends, 15 states had less than a 5% prison population decline since their peak year.  Moreover, 12 states have continued to expand their prison populations, with four producing doubledigit increases since 2010: North Dakota, Wyoming, Oklahoma, and Minnesota.

May 26, 2017 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (0)

Wednesday, May 24, 2017

American Law Institute officially approves revised Model Penal Code: Sentencing provisions

This afternoon I received an email with this exciting news: "Members of the American Law Institute (ALI) voted at their 2017 Annual Meeting in Philadelphia on Wednesday, May 24th to approve the Proposed Final Draft of the Model Penal Code: Sentencing." Here is the context via the email of what I think is a very big deal after a very long process:

Under Reporter Kevin R. Reitz (Co-Director of the Robina Institute of Criminal Law and Criminal Justice and James Annenberg La Vea Land Grant Chair in Criminal Procedure Law at the University of Minnesota Law School), and Associate Reporter Cecelia M. Klingele (Associate Professor of Law, University of Wisconsin, Madison), the project reexamines the sentencing provisions of the 1962 Model Penal Code in light of the many changes in sentencing philosophy and practice that have taken place since its original publication.

The Model Penal Code: Sentencing project provides guidance on some of the most important issues that courts, corrections systems, and policymakers are facing today, including the general purposes of the sentencing system; rules governing sentence severity — including sentences of incarceration, community supervision, and economic penalties; the elimination of mandatory minimum penalties; mechanisms for combating racial and ethnic disparities in punishment; instruments of prison population control; victims’ rights in the sentencing process; the sentencing of juvenile offenders in adult courts; the creation of judicial powers to review many collateral consequences of conviction; and many issues having to do with judicial sentencing discretion, sentencing commissions, sentencing guidelines, and appellate sentence review.

“As a matter of recent history in this country, we’re at quite an important moment, where the conversation and political attitudes towards criminal justice policy and sentencing policy have been shifting dramatically at the state level,” said Professor Reitz.  “Despite current uncertainties in the federal government, legislators, policymakers, and lawmakers in state and local criminal justice systems are searching for workable solutions to problems of mass punitiveness that have grown since the 1970s.  This moment in history is particularly fortuitous for the Model Penal Code because we are arriving at the point of completion just as this new or changed nationwide debate is occurring. For lawmakers, judges, and corrections leaders, we can provide the tools they will need to create important and lasting sentencing reforms in their jurisdictions.”

May 24, 2017 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (1)

Thursday, May 18, 2017

Highlighting sentencing reform's momentum in the states despite prosecutorial change of course by US Attorney General

The New York Times has this extended new article detailing recent state sentencing reform realities that stand in contrast to the decision last week by Attorney General Sessions to promulgate tougher charging and sentencing guidelines.  The article is headlined "States Trim Penalties and Prison Rolls, Even as Sessions Gets Tough," and here are excerpts:

Louisiana has the nation’s highest incarceration rate.  But this week, Gov. John Bel Edwards struck a deal to reduce sentences and the prison population, saving millions annually. If lawmakers approve the changes, Louisiana will be following more than 30 states, including Georgia, Texas and South Carolina, that have already limited sentences, expanded alternatives to incarceration such as drug treatment, or otherwise reduced the reach and cost of the criminal justice system.  Many of those states say they have saved money while crime rates have stayed low.

In Washington, though, the nation’s top law enforcement officer, Attorney General Jeff Sessions, has charted the opposite course.  He announced last week that federal prosecutors should aim to put more people in prison for longer periods, adopting the sort of mass-incarceration strategy that helped flood prisons during the war on drugs in the 1980s and 1990s.  His move — which he said would promote consistency and respect for the law — alarmed critics who feared that the Trump administration was embracing failed, even racist, policies.

Even more, Mr. Sessions’s approach conflicted with one of the few major points of bipartisan national agreement over the past decade, that criminal justice could be more effective by becoming less punitive to low-level offenders, treating root causes of crime like drug addiction, and reserving more resources to go after serious, violent criminals.

But if Mr. Sessions’s appointment has dampened the hopes of those wishing for congressional action to reduce incarceration, advocates say it has had little effect on state efforts. “There was a lot of speculation that with the rhetoric from the presidential campaign, there would be a drop in momentum, but we haven’t seen that,” said Marc A. Levin, the policy director for Right on Crime, a group at the fore of conservative efforts to reduce incarceration rates.  “There have been so many successes in the last several years, particularly in conservative states, that it continues to fuel other states to act,” Mr. Levin said.

The consensus began with a cold, objective judgment that taxpayers were not getting a good return on investment for money spent on prisons.  Bloated corrections budgets took money that could be spent on schools, roads or tax breaks, while many of those who went through the prison system went on to offend again.  Among Republicans and Democrats alike, concern also grew that too many nonviolent criminals who were no threat to society were being imprisoned and given little chance to reform and re-enter mainstream society....

It has not hurt that early adopters included tough-on-crime red states like Texas, which began passing major criminal justice revisions in 2003.  “It was a Nixon-goes-to-China thing, and was really helpful in letting other states know, ‘The water is warm; you can do this,’” Mr. Ring said.  In contrast, he added, Mr. Sessions’s directive flies in the face of state-level successes. “We’re going to double down on an approach everybody else has walked away from,” is how Mr. Ring characterized it.

So far this year, Michigan and Georgia, which previously rewrote their criminal justice laws, have already approved a new round of changes.  In Oklahoma, where Mr. Trump handily carried every county in November, another vote was also popular: Residents approved by a 16 percentage point margin a ballot proposal calling on legislators to curb prison rolls and downgrade numerous drug and property crimes to misdemeanors from felonies.

“Basically, in Oklahoma we’re just warehousing people in prison, and we’re not trying to rehabilitate anybody because of budget constraints,” said Bobby Cleveland, a Republican state representative who is chairman of the Public Safety Committee. Oklahoma has the nation’s No. 2 incarceration rate. The state is now considering how to heed the voters’ advice, including debating major criminal justice changes. The effort faces opposition from district attorneys who have slowed some pieces of legislation, but the proposals have the firm backing of Gov. Mary Fallin, a Republican. Supporters acknowledge that it may take a few tries to succeed. “Texas didn’t do it in one year, either,” Representative Cleveland said.

Louisiana is also moving toward change. On Tuesday, Governor Edwards, a Democrat who has made reducing the prison population a centerpiece of his administration, announced that he had reached an agreement with the state’s politically powerful district attorneys to revise criminal justice laws. The deal, which still faces a vote in the Legislature, would reduce penalties for minor drug possession, give judges more power to sentence people to probation instead of prison, limit how many theft crimes qualify as felonies, and reduce mandatory minimum sentences for a number of crimes.

Last year, it also seemed there was a fair chance that even Congress would get in on the action with a bipartisan bill to reduce mandatory minimum sentences for some drug crimes. The bill never got a vote on the floor, and some feared that the appointment of Mr. Sessions, who opposed the legislation as a senator, was a sign that President Trump would never support it. But in March, Mr. Trump’s son-in-law and senior adviser, Jared Kushner, met with pro-reform senators, including Charles E. Grassley, Republican of Iowa and chairman of the Judiciary Committee, signaling he considered the issue a priority....

While Mr. Sessions has warned of what he says is a coming surge in crime, advocates for reducing incarceration say they are frustrated by how their goals are often cast as adverse to public safety. “The states that have most significantly reduced their prison population have also seen the biggest drops in their crime and recidivism rates,” said Holly Harris, a former general counsel of the Kentucky Republican Party who is now executive director of the U.S. Justice Action Network. “Reform makes us safer,” Ms. Harris said. “There’s a misperception with prosecutors that somehow reform is anti-law enforcement, and that couldn’t be further from the truth.”

May 18, 2017 in Drug Offense Sentencing, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2)

Tuesday, May 16, 2017

Is it unconstitutional for a state to allow judges to increase sentences because a felony was committed by someone illegally present in the US who had been previously deported?

The question in the title of this post could be an issue before state (and federal?) judges in Tennessee shortly, because a new state sentencing provision to this effect is on the desk of the Governor of the Volunteer State.   This local article, headlined "Bill gives TN judges more power in sentencing, experts say law is unconstitutional," explains:

State lawmakers are keeping an eye on the clock as time ticks down for Gov. Bill Haslam to act on a bill granting state judges new sentencing authority. The bill allows judges to add more time to a felony sentence if a defendant is in the country illegally. Right now the state of Arizona is involved in a legal battle over a similar issue.

Tennessee lawmakers say this bill would be a hard deterrent against crime. Immigration advocates say it's a burden on local governments that will drive a wedge between the community and the legal system. Haslam has three options when it comes to the sentencing enhancement bill before his desk. He can sign it, veto the bill or allow it to pass into law without his signature.

Lincoln Memorial University Duncan School of Law professor Stewart Harris believes whether it's signed or not, this bill might not be around for long. "My initial reaction is that it's probably unconstitutional,” said Harris.

According to Harris, the U.S. Constitution governs America's immigration laws, not states. That's one reason states don't typically pass immigration laws. "Should California have one set of rules and Massachusetts another? What about all the landlocked states, should they have their own rules as well? That’s why Congress has authority over immigration,” explained Harris.

State Sen. Becky Duncan Massey of Knoxville believes this bill isn't an immigration issue. "The courts are going to decide if something is constitutional or not if it's challenged. I don't believe this really has to do with immigration, it has to do with crime,” said Massey.

Massey says residence is already a factor when considering a person's bond. She believes judges should have all the information about a defendant available to them before sentencing. "They’re already going to jail, they have committed a crime, they've been convicted of a crime and this is just a factor along with another factor determining how long the sentence is,” she said....

This bill passed the House and Senate on May 9. The governor has 10 working days to take action or allow it to pass without his signature.

Though I am not an expert on immigration law or preemption, I am inclined to believe this kind of law is constitutional. I can see a range of reasonable constitutional and policy arguments against this proposed amendment of Tennessee's sentencing laws, but the fact that the provision appear to apply to those in the country illegally AFTER a previous deportation would seem to foster an argument that the law is more like punishing someone based on a certain type of prior criminal history rather than just based on alienage.  But nobody should hold me to that too-quick and relatively uniformed assessment, and everybody should use the comments to help be get better informed on the question in the title of this post.

May 16, 2017 in Offender Characteristics, Procedure and Proof at Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (10)

Tuesday, May 02, 2017

Florida legislative debate provides interesting sign of the modern mandatory-minimum drug sentencing times

This new local article from Florida, headlined "Steube bill aimed at curbing overdoses sparks drug sentencing debate," highlights how legislators even in traditionally "tough" states are starting to have much more nuanced discussions about mandatory minimum sentencing proposals. Here are the interesting details:

Legislation aimed at tackling the opioid epidemic in Florida sparked a debate about mandatory minimum drug sentences in the state Senate Tuesday, prompting an amendment that put the measure sponsored by two Southwest Florida lawmakers in jeopardy.

Rep. Jim Boyd, R-Bradenton, and Sen. Greg Steube, R-Sarasota, have been pushing a bill that would establish penalties for the possession of large amounts of fentanyl — a powerful synthetic opioid often laced with heroin — and its many derivatives.  Manatee and Sarasota counties were the top two communities in the state for fentanyl-related deaths per capita in 2015, according to the Florida Medical Examiners Commission.  Fentanyl was responsible for 911 deaths across Florida in 2015, and continues to be a major health crisis across the state.

But mandatory minimum drug sentences have come under increasing scrutiny nationwide and there is bipartisan concern in the Florida Legislature about what many lawmakers view as overly harsh sentencing laws.  The fentanyl bill — with the mandatory minimums included — already has passed the House, but both Republicans and Democrats in the Senate took aim at the sentencing aspect of the bill Tuesday.

The Senate amended the bill — over Steube’s objections — to strip out the mandatory minimums, which included at least three years in jail for possession of between four and 14 grams, at least 15 years for possession of between 14 and 28 grams and at least 25 years for possession of more than 28 grams. That amendment may kill the bill. Boyd does not seem inclined to push for it now, saying in a text message: “I don’t believe the bill deals with this deadly opioid problem” as amended.

Boyd said if the House takes up the Senate bill he would seek to strip off the sentencing amendment. But that likely would keep it from clearing the Senate. Steube noted that the amended legislation still makes possession of large amounts of fentanyl a crime for the first time.  “We’re still taking — in my opinion — a good step in the right direction,” Steube said of the amended bill.

The Senate debate showed the appetite within the chamber for criminal justice reform, an issue that has been championed by Republican Senate President Joe Negron.

Some lawmakers argued that any reforms tackling mandatory minimum sentences should be done in a comprehensive way and that the fentanyl bill was not the right place to start the discussion. “I have some concerns about how we have these bills come along and we put minimum mandatories on them every year,” said Sen. Rob Bradley, R-Fleming Island. But Bradley added that the Senate needs to have a “global discussion” about the issue and argued against the amendment.

Sen. Jeff Brandes, R-St. Petersburg, countered that “it’s the right conversation to have because minimum mandatories don’t work in my opinion.”  Judges need to have discretion over when to crack down and when to show leniency added Sen. David Simmons, R-Altamonte Springs. Tough drug sentencing laws can destroy lives, he said.

Steube said he is sympathetic to concerns about mandatory minimums but believes reform efforts should start with a drug such as marijuana that is not deadly.  “I certainly didn’t want this bill to be the bill that’s talked about,” he said.

The amendment was proposed by Sen. Randolph Bracy, one of the few Democrats in the chamber to chair a committee.  The Orlando lawmaker was not expecting the amendment to generate such a robust debate.  He hopes to address the issue of mandatory minimums in a broad way in his committee next year.

May 2, 2017 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (1)

Wednesday, April 12, 2017

Effective coverage of the considerable challenges of sentencing reform in Louisiana

Over the last month, The Advocate has done a fine job covering debates over sentencing reforms in Louisiana, and the most recent of the article (listed last below) prompted me to collect come of this reporting in this space:

April 12, 2017 in Prisons and prisoners, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2)

Saturday, April 01, 2017

"Conservatives Are Leading the Way as States Enact Criminal Justice Reform"

The title of this post is the headline of this extended Slate commentary (which is not an April Fool's Day joke). The piece is authored by LawProf Brandon Garrett, and it carries this subheadline: "Can their enthusiasm stop Donald Trump from pushing his backward 'tough on crime' agenda?". Here are excerpts:

The United States incarcerates its citizens at a higher rate than any other country in the world, but over the past few years, there’s finally been some progress. Rates of incarceration have finally begun to decline, mostly due to sweeping changes made in progressive states like California, New Jersey, and New York. According to Pew Charitable Trusts, adult incarceration has declined 13 percent since its peak in 2007, from 1 in 100 to 1 in 115.  Of course, this progress is threatened by Donald Trump and his administration: The president has not only promised to reinstate a long-outdated approach to criminal justice, he’s also made Jeff Sessions, who holds similarly antiquated views, his attorney general.  The two of them are preparing a task force to study violent crime — despite the fact that it’s already at historic lows — and are aiming to focus resources on drug cartels and drug use. They seem determined to return the federal government to the tough-on-crime era of the 1980s and 1990s, the height of the war on drugs.

But criminal justice reform is still marching forward—and the momentum is largely coming from conservatives, working in their state governments.  The conservative case for reform is obvious: Spending billions of dollars on prison expansion and lengthy sentences is outdated and ineffective. And the state level is where reform will be the most effective — the majority of people are incarcerated in state systems. Reducing that number helps states balance their budgets, said Lenore Anderson, president of Alliance for Safety and Justice, a criminal justice reform organization that centers on crime victims. “Continued budget problems mean that regardless of who’s in the White House, [criminal justice] is going to continue to be a ripe issue for reform.”...

Texas is one of several red states, along with Georgia, Kentucky, Mississippi, Oklahoma, and South Carolina, that has adopted a range of progressive initiatives in the past decade. Texas’ reputation as a gung-ho death penalty state may make its reform efforts a surprise, but in the past decade, fiscal conservatives joined forces with civil libertarians and reduced the state’s incarceration rate by 14 percent.  Part of that was thanks to forensic science and eyewitness identifications reforms that ended up putting fewer people behind bars. And rather than spend a half-billion dollars on building three new prisons, Texas instead invested in rehabilitation and re-entry, which has allowed it to close three prisons and saved billions. Crime has fallen to the lowest levels seen in Texas since 1968.

More than 30 other states have passed justice reinvestment legislation similar to Texas’. These laws divert low-level offenders from prison, use evidence-based risk methods to determine who really needs to be behind bars, reduce penalties for crimes, and aim to make it easier to get work after leaving prison. The cost savings from these reforms is then invested in rehabilitation and mental health and drug treatment, reducing crime even further....

But even with all this progress, a 10 percent to 20 percent drop in people going in won’t change the fact that our prisons are still vastly overstuffed — incarceration has risen 500 percent since the 1970s. Currently, more than half of the state prisoners in the country are serving time for violent crimes. Reducing prison populations to a manageable size must also include a closer look at how we legally define, prosecute, and punish violent crimes....

With Trump in charge, it’s possible that [some] will feel more empowered to push back against the progress that was starting to seem inevitable. The states that go back to this approach will likely see higher incarceration rates, and the costs — both human and fiscal — will fall on the public. But most lawmakers (not to mention the public) seem to have learned that these “tough” approaches failed in every way. We wasted billions to become the world’s leading incarceration nation. Such policies are simply an expensive and self-defeating type of posturing by politicians who value their own self-image over the well-being of the constituents. We already know what type of leader Trump is — let’s hope the state resistance is enough to fight him.

Though I support the sentiments of much of this commentary, I am disappointed that it fails to directly confront the tangible increase in violent crime over the last few years and the various ways in which this increase provides critical fodder for those eager to resist a move away from past "tough and tougher" approaches to crime and punishment. I surmise that AG Sessions and many of those around him sincerely believe crime remains low today only because of the laws, policies and practices of the "tough-on-crime era of the 1980s and 1990s," and these folks can and do now readily suggest that recent reforms to these laws, policies and practices may account in large part for recent crime increases. Past crime declines and now recent crime increases will likely lead these folks to persistently resist even the suggestion that a commitment to tough-and-tougher approaches is "self-defeating" in any way. In turn, they will contend that academics and other reformers are far too eager to put the interests of criminals ahead of victims.

April 1, 2017 in Elections and sentencing issues in political debates, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (3)

Thursday, March 02, 2017

Washington Supreme Court rules Eighth Amendment precludes applying mandatory minimum adult sentencing scheme to juvenile offenders

The Supreme Court of Washington issued a very significant new ruling expanding the reach of the Eighth Amendment as adumbrated by the Supreme Court in Graham and Miller. The extended ruling in Washington v. Houston-Sconiers, No. 92605-1 (Wash. March 2, 2016) (available here), gets started this way:

"[C]hildren are different." Miller v. Alabama,_ U.S. _, 132 S. Ct. 2455, 2470, 183 L. Ed. 2d 407 (2012). That difference has constitutional ramifications: "An offender's age is relevant to the Eighth Amendment, and [so] criminal procedure laws that fail to take defendants' youthfulness into account at all would be flawed." Graham v. Florida, 560 U.S. 48, 76, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010); U.S. CONST. amend. VIII.  The defendants in this case -- Zyion Houston-Sconiers and Treson Roberts -- are children. On Halloween night in 2012, they were 17 and 16 years old, respectively.  They robbed mainly other groups of children, and they netted mainly candy.

But they faced very adult consequences.  They were charged with crimes that brought them automatically into adult (rather than juvenile) court, without any opportunity for a judge to exercise discretion about the appropriateness of such transfers.  They had lengthy adult sentencing ranges calculated under adult Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, rules.  And they received lengthy adult firearm sentence enhancements, with their mandatory, consecutive, flat-time consequences, without any opportunity for a judge to exercise discretion about the appropriateness of that sentence increase, either.

As a result, Houston-Sconiers faced a sentencing range of 501-543 months (41.75-45.25 years) in prison.  Clerk's Papers (Houston-Sconiers) (CPHS) at 227.  Of that, 3 72 months (31 years) was attributable to the firearm sentence enhancements and would be served as '"flat time,"' meaning "in total confinement" without possibility of early release. Id.; RCW 9.94A.533(3)(e).  Roberts faced a sentencing range of 441-483 months (36.75-40.25 years) in prison. Clerk's Papers (Roberts) (CPR) at 154.  Of that, 312 months (26 years) would be "'flat time"' attributable to the firearm sentence enhancements. Id.

To their credit, all participants in the system balked at this result. But they felt their hands were tied by our state statutes.

We now hold that the sentencing judge's hands are not tied.  Because "children are different" under the Eighth Amendment and hence "criminal procedure laws" must take the defendants' youthfulness into account, sentencing courts must have absolute discretion to depart as far as they want below otherwise applicable SRA ranges and/or sentencing enhancements when sentencing juveniles in adult court, regardless of how the juvenile got there.  We affirm all convictions but remand both cases for resentencing.

March 2, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, State Sentencing Guidelines | Permalink | Comments (10)

Thursday, February 23, 2017

Florida legislators talk of repealing mandatory minimums for nonviolent offenses

As reported in this local article, headlined "In major Tallahassee reversal, mandatory sentences called a waste of taxpayer money," there is a notable movement to repeal some mandatory minimum sentences in the Sunshine State.  Here are the details:

Cynthia Powell is serving a 25-year sentence for selling 35 pills for $300 in 2002. Her incarceration at Homestead Correctional Institution costs taxpayers an average of $18,064 per year — or $451,600 by the time she is released in 2023.

The Florida Senate Criminal Justice Committee concluded Tuesday that’s money poorly spent. It voted unanimously for SB 290, which would end minimum mandatory sentences for nonviolent offenses like Powell’s.  The measure represents a major shift from the tough-on-crime bills of the last two decades that filled prisons and created what both liberals and conservatives now believe has been a subclass of lifers in jail and a waste of tax money.  The “prison diversion bill” would save the state $131 million in avoided costs and put 1,001 fewer people in jail, said Sen. Daryl Rouson, D-St. Petersburg, the bill’s sponsor.

The measure would allow judges to depart from the 118 minimum mandatory sentences in Florida law but excludes drug traffickers.  It restores the Florida Sentencing Commission, which existed from 1982 to 1997, but limits its scope to determining the severity ranking that adds points to an offender’s record based on certain offenses. Anyone who commits a violence offense, is not eligible for the court’s leniency.

Reforming Florida’s legacy of harsh sentencing is one of several reforms being pushed by a coalition of liberal and conservative advocates that were passed unanimously by the Senate committee on Tuesday. “We are in an interesting juncture in our society and the Legislature, where Democrats and Republicans in both chambers agree that it’s really time to look at our criminal justice system and start to make some reforms,” said Sen. Randolph Bracy, D-Orlando, chairman of the committee....

Greg Newburn, director of Families Against Mandatory Minimums, a conservative group that supports ending mandatory minimum sentences for nonviolent crimes, said “dozens of states have already made the decision to move in this area.” They include Georgia, Oklahoma and North Carolina. “The results are uniform,” he said. “We get lower crime. We get smaller prison populations. They’ve closed prisons and saved tens of millions of dollars.”

If Powell, the Homestead inmate, had sold two fewer pills in 2002, she would have gotten a 15-year sentence, he said. If she sold them today, it would be a seven-year sentence. Instead, she won’t be released until 2023. “There are many other people in similar situations who simply don’t need to be there,” he said. “It’s a waste of money. We receive no public safety benefit whatsoever.”

His organization supports full repeal of mandatory minimum drug laws — as states such as Michigan, New York and Delaware have done — but he considers the piecemeal progress proposed by the Senate “a good reform.”

Jim DeBeaugrine of the Center for Advanced Justice, a sentencing reform advocacy group, warned the committee that giving drug offenders shorter sentences will only keep them out of prison if they receive treatment for substance abuse and mental health issues. “If you try to do it on the cheap, the results of this outcome are compromised,” he said. “The only way you will ever end the issue of mass incarceration is you’ve got to stop putting so many people in prison.”

February 23, 2017 in Mandatory minimum sentencing statutes, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (23)

Tuesday, February 14, 2017

Noting central place of Texas in (incomplete) consensus disfavoring increased use of incarceration

Today's New York Times has this extended commentary about incarceration authored by Tina Rosenberg running under the headline "Even in Texas, Mass Imprisonment Is Going Out of Style."  Here are excerpts:

It promises to be a bleak four years for liberals, who will spend it trying — and, most likely, failing — to defend health care, women’s rights, climate change action and other good things.  But on one serious problem, continued progress is not only possible, it’s probable. That is reducing incarceration.  In an era of what seems like unprecedented polarization and rancor, this idea has bipartisan support. The Koch brothers and Black Lives Matter agree.  The American Civil Liberties Union and the American Conservative Union Foundation agree.  Bernie Sanders and Newt Gingrich agree.

Here’s what they agree on:

• The United States went overboard on mass incarceration in the 1980s and 1990s.

• This has ruined a lot of lives — of those incarcerated, yes, but also others among their families and communities.

• The evidence says that harsher sentences don’t prevent crime and may even lead to more crime.

• Jailing people is really, really expensive.

• Prison brings no help and much harm to the 80 percent of prisoners who are addicted to drugs or mentally ill.

• There are alternatives to imprisonment that keep Americans safe.

(There are also crime and justice issues that these liberals and conservatives do not agree on, such as the death penalty, the merits of private prisons and, of course, guns.)

Even all this agreement is no guarantee of progress in Washington.  President Trump’s policies on crime are whatever slogans get the crowd roaring. Attorney General Jeff Sessions has a D-plus record on this issue as a senator.  He supported reducing the disparity in sentencing for cocaine and crack possession. He did vote for the Prison Rape Elimination Act — kudos for that, I suppose.  But last year, Mr. Sessions, along with a few other Republican senators, blocked the major bill on this issue, the Sentencing Reform and Corrections Act, from coming to a vote.  So the administration can be expected to be unhelpful, with Congress a question mark.

While Washington’s actions are important, however, federal prisons hold only one in eight imprisoned Americans.  So mass incarceration is really a state issue. And in the states, momentum is heartening. After quintupling between 1974 and 2007, the imprisonment rate is now dropping in a majority of states.  Overall, it fell by 8.4 percent from 2010 to 2015, while crime dropped by 14.6 percent, according to research by the Pew Charitable Trusts.

California slashed its incarceration rate by 27 percent between 2006 and 2014 after a court order. New York cut its rate by 18 percent, largely because of reform of the Rockefeller drug laws that mandated long sentences for possession. New Jersey’s rate dropped by 24 percent.

More remarkable — and probably more persuasive to other states and to Congress now — is the shift in red states, where incarceration rates have been the highest. In the last decade, they have dropped substantially in South Carolina, Mississippi, Georgia and, notably, in lock-’em-up Texas....

The cost of prisons was a huge issue.  In 2007, the Texas Legislative Budget Board projected that the state would need more than 17,000 new prison beds over five years, a building project that would cost $530 million, never mind the operating costs. That pushed the ultraconservative House speaker, Tom Craddick, to a breaking point. Jerry Madden, the Republican chairman of the House Corrections Committee, said in an interview that Craddick took him aside. “Don’t build new prisons,” Craddick told him. “They cost too much.”

Madden was an engineer and took that approach, asking: What is proven to work to keep people out of prison? How much of that do we need to buy in order to not build more of them? For ideas, he and his staff talked to research and advocacy groups, including the liberal coalition and the conservative Texas Public Policy Foundation, which gave birth to and houses Right on Crime.

That there was a conservative research group to consult was in itself remarkable. “No one in conservative think tanks worked on criminal justice, other than to advocate for more prisons and more incarceration,” said the foundation’s director, Brooke Rollins, who had been Gov. Rick Perry’s policy director. But in 2004, Rollins got a call from Tim Dunn, an oilman who helps fund the foundation and serves on its board. Dunn has put millions of his own money into pushing the Texas legislature further to the right. Texas Monthly called him “probably the most influential person many Texans have never heard of.”

“Conservatives are wrong on crime,” he told a startled Rollins. “Scripture would not call us to build prisons and forget people.” Dunn believes that crime victims want restitution and repentance, while the prison system merely incapacitates. On his personal website, he wrote that “nonviolent crimes should be recompensed in a way that gets people back into the work force and adding to communities as quickly as possible,” and that Texas should “focus on restoring victims and communities damaged by crime.”

At Dunn’s urging, Rollins hired Levin part time to work on a conservative approach to criminal justice reform. “We found the conservative and liberal think tanks agreed on 70, 80 percent of the stuff,” said Madden.  And it’s those areas of agreement that were put in the bill. The reforms passed nearly unanimously — and although Perry had previously vetoed narrower reforms, this time he signed them. (He now endorses the Right on Crime agenda.)  Reforms continue today: 16 bills passed in the last legislative session, including one allowing people to erase their criminal records in some circumstances....

The state now has drug courts, veterans’ courts and mental health courts. “They are there to provide help, but at the same time, structure,” said Madden, who is retired from the legislature.  “You have a problem and we’re going to help you with your problem.”  Many inmates were in prison for technical violations of their probation or parole. Now those violations often bring rapid sanctions and supervision instead of a return to prison.

The rate of incarceration in Texas state prisons fell by 17 percent from 2007 to 2015, according to the coalition, and the juvenile incarceration rate fell by nearly three-quarters. Recidivism is dropping steadily. At the same time, the crime rate has dropped by 27 percent.

Texas still has much to do. It ranks sixth or seventh in the nation in imprisonment rates. Some 8,900 people are in the state jail system for crimes that are neither violent nor sexual. Many are there for drug charges, but they often can’t get treatment in jail.  Thousands of people are sent back to prison each year for technical revocation of parole or probation.  As for juveniles, 22,000 are in the adult system, where they are at high risk of sexual assault and suicide....

The fall in crime rates — itself a reason incarceration has dropped — has made reform politically possible. Conservative leadership in states like Texas gives everybody cover. And Americans support criminal justice reform by large majorities.  One telling example: in his re-election campaign in 2014, Gov. Nathan Deal of Georgia, a Republican, highlighted his reforms that lowered the rate of incarceration among African-Americans by 20 percent.  Twenty years ago, a Republican in Georgia would have boasted about the opposite.

If crime rates begin rising again, could hard-line thinking once more prevail? Yañez-Correa doesn’t think so. “Many legislators want to work on these issues jointly because other issues are so polarized,” she said. “People on both sides are genuinely interested and devoted.”

This story is important and encouraging, but it fails I think it connect fully with the import and impact of Prez Trump campaigning on a "law and order" platform and his eagerness to make much of the uptick in murder and other violent crimes in some big cities in recent years.  The folks over at Crime & Consequences and many others are quick and keen to link any and every increase in crime to recent decreased use of incarceration, and that perspective is certainly some element of how Prez Trump and AG Sessions think about crime and punishment issues.

I remain hopeful that, especially at the state level, there is continued interest in, and bipartisan support for, an array of "smart on crime" alternatives to incarceration for a range of less serious and less dangerous offenders.  But I do not think that Prez Trump and AG Sessions, arguably the two most important criminal justice policy-makers for the next few years, subscribe to all or even most of what is listed above in the commentary as points of agreement.  And that is a very big deal that must always be front and center as one considers the future of criminal justice reform at both the federal and state level.

February 14, 2017 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (7)

Thursday, January 19, 2017

"State Advances in Criminal Justice Reform, 2016"

The title of this post is the title of this helpful new "Policy Brief" coming from The Sentencing Project.  Here is the brief introductory paragraph to the four-page documents helpful accounting of state-level reforms in the year that was:

During 2016, reforms were adopted in at least 17 states targeted at reducing prison populations and addressing collateral consequences for persons with criminal convictions.  The issue of mass incarceration has gained broader attention among diverse constituencies, including lawmakers, faith leaders, and civil rights advocates, contributing to a more receptive political environment for criminal justice reform.  Highlighted below are the most significant state reforms of 2016 in the areas of sentencing and rights restoration for people with criminal records.

January 19, 2017 in State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)

Monday, January 16, 2017

"How the states can show the way: Participating in criminal justice reform, the states have saved over a billion dollars"

The title of this post is the headline given to this new Washington Times commentary authored by Marc Levin.  Here is how it gets started:

While the nation is still waiting to see if Congress will take up criminal justice reform, states have been quietly getting the job done. A new Urban Institute report shows that states participating in the Justice Reinvestment Initiative (JRI) have saved over a billion dollars thus far through smart reforms to sentencing laws, pretrial practices, and prison release policies. Moreover, this has enhanced public safety.

It’s a direction deserving of praise on both sides of the aisle. Reforms curb prison growth and relieve unsustainable costs for the states, while giving states the opportunity to reinvest funds into programs that will reduce crime and reoffending, such as community behavioral health treatment, and services for victims. And they have reinvested, at least $450 million so far.

Guided by the U.S. Department of Justice and the Pew Charitable Trusts, JRI catalyzes change in both process and policy through intensive technical support to bipartisan groups of key criminal justice players. Where states typically address criminal penalties on ad hoc basis, JRI brings together a task force of judges, prosecutors, victims’ advocates, and other stakeholders to analyze data about the state’s prison population and use it as the basis to collaboratively develop a comprehensive plan that will cut growth and reduce reoffending.  The policy reforms embrace accountability for both offenders and the justice system, better distinguishing between those who must be incarcerated due to the danger they pose to society and those who can be rehabilitated in the community.

Here in Texas, success with this type of criminal justice reform was part of what prompted broad investment in JRI.  Texas reforms have yielded an incredible $3 billion in savings and averted costs over almost 10 years, providing opportunities to reinvest hundreds of millions of dollars into treatment and diversion programs.  Among the most successful interventions that Texas expanded in its 2007 justice reinvestment plan were drug courts, which led to lower re-arrest rates and reincarceration rates while costing the state a fraction of the amount Texas spends on incarceration.

Alongside declines in imprisonment we see a decline in crime rate.  From 2010 to 2015 in the 10 states with the largest imprisonment declines, the crime rate fell an average of 14.4 percent, compared with 8.1 percent in the 10 states with the biggest growth in imprisonment.  For example, the FBI index crime rate in South Carolina is now 15.7 percent lower than when the state’s justice reinvestment plan was adopted in 2010.  Similarly, Texas’ crime rate has fallen 30 percent since its 2007 justice reinvestment plan.

January 16, 2017 in Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (1)

Thursday, January 05, 2017

Lamenting big criminal justice problems in the little state of Delaware

This new local commentary from Delaware authored by Jack Guerin, headlined "A perfect storm of failure in criminal justice," tell a pretty disconcerting story about the First State. Here is how the commentary gets started:

By every conceivable measure, Delaware’s criminal justice system is a failure. The Wall Street Journal recently reported that “Delaware has one of the highest violent crime rates in the country.”  The article found that our state ranked third highest among all states in robberies, and that the rate of crime in Wilmington is “one of the highest of any large city in the country.”

In November, the Delaware Criminal Justice Council issued its annual report on recidivism in Delaware, finding that “by the end of three years, about 76 percent of offenders in each cohort had been rearrested for a serious offense.”  Most recidivism events occurred in the first two years after release.

In December, the Bureau of Justice Statistics issued a report ranking Delaware’s prison system fifth highest among states in overcrowding at 154.7 percent of design capacity.  A recent report by the Liman Program at the Yale Law School ranked Delaware (tied with Tennessee) as having the third highest percentage of prisoners in solitary confinement in the nation.

With high rates of crime, incarceration, recidivism, overcrowding and solitary confinement, Delaware represents the perfect storm of failure for the “tough on crime” policies initiated more than 40 years ago. Our enormous investment in punitive incarceration is not making us safer.

January 5, 2017 in Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (10)

Monday, January 02, 2017

Great report on Texas justice reviewing why Lone Star State is a "leader in criminal justice reform"

Images (4)Via this local press article, headlined "Report: Don't cut funding for inmate rehabilitation," I came across this terrific new report from the Texas House of Representatives Committee on Corrections.  These excerpts from the press piece provides a partial summary of the report:

When lawmakers return to Austin in 10 days to begin grappling with what appears will be a bare-bones state budget, a legislative panel that oversees the Texas prison system is urging them to resist cutting funding for programs that help former inmates and probationers adjust to free-world life.

“As (the prison system) cannot cut back on the security and public safety components of their mission, it is likely that many of the programs that are making a real difference will face the axe,” says a report released over the holidays by the Texas House Corrections Committee.

“The state that leads the nation in executions also leads the nation in providing alternatives to incarceration,” the report adds. “An American state that used to be infamous for its ‘lock 'em up and throw away the key’ approach to crime is now providing an unlikely inspiration to other states and countries.”

The 68-page report that the panel will likely use as a blueprint for legislative initiatives once 2017 session begins Jan. 10 makes several recommendations, include lowering the fees that probationers must pay, opting out of a federal program that requires the suspension of a driver’s license for anyone convicted of possessing even a small amount of marijuana and sealing the criminal records for qualifying former inmates who remain out of trouble for a specified period of time.

The report comes some 20 years after Texas leaders frustrated by rising crime rates completed a massive prison building program that tripled the system’s capacity. It even uses a phrase once thought to be politically toxic is describing the state’s approach for helping lawbreakers return to society. “Texas is a leader by being ‘softer on crime,’ although we prefer the word ‘smarter,’” it says. “It's something to think about as we head into the next legislative session.”....

The committee report says probation revocations, while still relatively high, have been steadily dropping for about a decade as lawmakers began devoting more resources to programs aimed at reducing inmates’ and probationers’ substance addictions and arming them with job skills. During that period, the report says, Texas’ crime rate has dropped about 20 percent while recidivism rates declined from 28 percent to 21 percent.

During a hearing in February, Corrections Committee Chairman Jim Murphy said it’s important that inmates and probationers believe that the state is committed to programs aimed at minimizing the chance that they’ll be back behind bars. “I am thinking about the dynamic of someone being in the system, wanting to improve themselves, and being told ‘you're not a priority,’” said Murphy, a Houston Republican. “If we're trying to get someone not to recidivate, that's exactly opposite of what I think the intended result would be.”

According to the report, which Murphy signed in early December before its release last week, the fees associated with being on probation can be insurmountable for offenders struggling to find employment. Probationers are charged upward of $60 a month to help cover the cost of supervision. Many are required to take and pay for classes aimed at fighting addiction or controlling anger and violence. Probationers who lose driving privileges can be required to take a class to have the license reinstated and pay up to $325 before being allowed to drive, even if it’s just to and from work.

The list goes on. “There are fees for records management, for juries, for judicial support, for court security, and for indigent defense,” the committee’s report says. “Pages and pages of fees. It boggles the mind to read it. Think of what it must be like to live it.” Often, the report continues, judges who impose the costs have little information regarding an offender’s ability to pay them. “In an era when you can find out your credit score for free on the internet, would it be that difficult to determine if a person is indigent prior to appearing before a judge?” the report asks.

The committee’s report points out that in April 2016, Pennsylvania enacted legislation, allowing criminal records of qualified nonviolent offenders to be sealed for offenders who remain free of legal trouble for 10 years. The records of those charged but not convicted of a crime can be sealed after 60 days.

As this partial summary should highlight, any and everyone interested in state or national criminal justice reform ought to have this across this important new Texas government report high on their New Year's reading list.

January 2, 2017 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (4)

Sunday, December 25, 2016

Holiday pitch from NY Times editorial board for "Cutting Prison Sentences, and Costs"

With Christmas on a Sunday this year, I will have to guess whether it was a holiday spirit or an end of year spirit that inspired this new New York Times editorial headlined "Cutting Prison Sentences, and Costs."  Here are excerpts, with a little commentary to follow:

States across the country have rushed to trim prison costs by backing away from the draconian sentencing policies that drove up the national prison population from 200,000 at the start of the 1970s to a peak of about 1.6 million in 2009.  While the total inmate population has declined by 2.9 percent since then, several states that approached reform more aggressively have already reduced their prison populations by far more. California, New Jersey, New York and Rhode Island have done so by more than 20 percent.

These states have shown that it is possible to shorten sentences — or divert offenders to community supervision — without compromising public safety.  But even bolder reforms to the sentencing system will be necessary to bring the prison census down to where it should be and reverse the corrosive effects of mass incarceration....

A new report by the Brennan Center for Justice at New York University School of Law provides a blueprint for further reforms.  It calls on states to mandate alternative sentences like drug treatment, probation or community service for low-level crimes like drug possession, minor drug trafficking, minor fraud, forgery and theft, which account for 25 percent of the nation’s prison population.  Judges would have the flexibility to hand down prison sentences in exceptional circumstances, as in the case of serious, repeat offenders.

The report also recommends a reduction in sentences for major crimes that account for a majority of the prison population — aggravated assault, murder, nonviolent weapons offenses, robbery, serious burglary and serious drug trafficking. (Under such a system, the typical inmate convicted of, say, robbery would serve 3.1 years, as opposed to 4.2.)  If these reforms were retroactively applied, the authors estimate, more than 200,000 people serving time for these crimes would be eligible for release.

Under a saner system, the report says, nearly 40 percent of the country’s inmate population could be released from prison without jeopardizing public safety. This would save states $200 billion over the first 10 years — enough to hire 270,000 new police officers, 360,000 probation officers or 327,000 teachers.

The preliminary reforms that many states already have enacted reflect a growing realization that mass incarceration is economically unsustainable and socially disastrous. But to reverse four decades of bad policy, state lawmakers will have to adopt a more decisive and systematic approach to sentencing reform.

Though I am inclined to embrace the essential elements of this editorial, it strikes me as politically and practically tone-deaf in many respects. Politically, the editorial could and should have emphasized the significant number of "red states" that have reduced their prison populations, states like Texas and Georgia and South Carolina and Mississippi. Practically, the editorial could and should have acknowledged that some violent crime (especially murder) and heroin problems have been increasing in recent years, which in turn suggests and demands that states and the federal government focus on fighting crime smarter and not just tougher.

December 25, 2016 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2)

Friday, December 23, 2016

Seeing the state of criminal justice reform through the lens of state reforms

Though the federal criminal justice system always gets lots of attention, the reality is that most of the real criminal justice "action" takes place at the state (and local) level.  Consequently, this Medium commentary by Jenna Moll, Deputy Director, U.S. Justice Action Network, titled "2016: States Home to Success on Effective Justice Reforms," serves as a useful year-end review of the state of our criminal justice reform union. Here is how the lengthy piece gets started, its middle headings, and its ending:

In 2016, the U.S. Justice Action Network made an aggressive push in 12 states to safely reform sentencing laws, reduce mandatory minimums, expand effective treatment and rehabilitation options, and improve the reentry process for returning citizens in our justice system.

With more than 1.3 million of the Americans currently behind bars in state facilities, our state work is crucial in order to actually impact the country’s incarceration rate. And every time we add another state, red or blue, to our list of successes, we make it harder for Congress to ignore the bipartisan calls for action.

The reason for our success is no secret but it is unique. We have used our right-left coalition and national allies to bring together law enforcement officials, faith-based community leaders, and stakeholders from all walks of life who recognize the pressing need to make changes.

We’ve had great successes throughout the year — and we haven’t taken our foot off the gas yet. Just last week in Ohio, the legislature passed fixes to the civil asset forfeiture system in the state that better protect due process and property rights for Ohio residents. A victory, right before the buzzer in 2016. Here’s where we and our allies made the most progress this year:

Removing Barriers to Employment...

Changing Laws, Changing Lives...

Refocusing Our Justice System ...

Bringing State Successes to D.C....

2017

Looking ahead, we’re already focused on long-term success, educating lawmakers and interest groups in states and pressing them to coalesce around robust legislative recommendations that can make the change voters seek. We’re involved in this process across the country — in Illinois with the bipartisan State Commission on Criminal Justice and Sentencing Reform, in Louisiana and Pennsylvania with their Justice Reinvestment Initiatives, and in Ohio through the Criminal Justice Recodification Committee.

In 2016, a clear roadmap for passing successful reforms at the state level was created, strengthened, and expanded. We know that by harnessing the power of bipartisan, state-based coalitions and engaging law enforcement, the business community and faith leaders, we can set the agenda for justice reform and gain a consensus that few other issues can achieve in the current political climate. That’s why in 2017, our organization is continuing efforts in almost a dozen states and expanding our efforts on the state level to include Tennessee, Texas, and Wyoming.

At times, progress on the legislative level seems to move at a snail’s pace, in light of the overwhelming levels of bipartisan support from voters. But it’s clear that 2016 was a successful year for the justice reform movement at the state level. Across eleven states, we’ve seen thirty-six bills that we and our coalitions championed signed into law by Governors from the right and the left, and we are incredibly proud of this work. And even more proud of those allies with whom we’ve had the honor of standing side-by-side.

I call that progress — and I look forward to even more in 2017.

December 23, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)

Tuesday, December 20, 2016

"Wisconsin Sentencing in the Tough-on-Crime Era: How Judges Retained Power and Why Mass Incarceration Happened Anyway"

5493-165wThe title of this post is the title of this new book by my FSR colleague and LawProf Michael O’Hear. For sentencing fans, this new book would surely make a great stocking stuffer, as this text from the publisher's website suggests:

The dramatic increase in U.S. prison populations since the 1970s is often blamed on the mandatory sentencing required by “three strikes” laws and other punitive crime bills. Michael M. O’Hear shows that the blame is actually not so easy to assign. His meticulous analysis of incarceration in Wisconsin — a state where judges have considerable discretion in sentencing — shows that the prison population has ballooned anyway, increasing nearly tenfold over forty years.

O’Hear tracks the effects of sentencing laws and politics in Wisconsin from the eve of the imprisonment boom in 1970 up to the 2010s. Drawing on archival research, original public-opinion polling, and interviews with dozens of key policymakers, he reveals important dimensions that have been missed by others.  He draws out lessons from the Wisconsin experience for the U.S. as a whole, where mass incarceration has cost taxpayers billions of dollars and caused untold misery to millions of inmates and their families.

Praise

“Serious students of modern sentencing reforms — as well as everyone eager to understand the roots of, and potential responses to, modern mass incarceration — must have this book on their reading list. O’Hear thoroughly canvasses the dynamic story of Wisconsin’s uniquely important sentencing reform history.”
—Douglas Berman, author of the Sentencing Law and Policy Blog

“Fascinating political and social history. O’Hear puts national criminal justice trends into a single-state frame, providing much sharper insights than often come from trying to look at the entirety of this very big country. This is first-rate work.”
—Frank O. Bowman III, University of Missouri School of Law

December 20, 2016 in Procedure and Proof at Sentencing, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)

Thursday, December 15, 2016

Interesting review of impact of Prop 47 on drug cases and offenders in California

Prop-47-jpgThis lengthy local article takes a remarkable and effective deep dive into the impact and import of California's Prop 47 two years after its passage. The piece carries a lengthy headline that serves as a kind of summary: "Two years after Prop 47, addicts walk free with nowhere to go: In 2014, California Voters Freed About 13,500 Low-Level Offenders From Crowded Prisons and Jails. But Many Ex-inmates Have Traded Incarceration for a Cycle of Homelessness, Drug Abuse and Petty Crime." Here are excerpts:

Two years after it was approved by California voters, Prop 47 has scaled back mass incarceration of drug addicts, but successful reform is woefully incomplete.  Proponents celebrate how the law freed at least 13,500 inmates like Lopez from harsh sentences in crowded prisons and jails, but Prop 47 has done little to help these people restart their lives. Instead, the unprecedented release of inmates has exposed the limits of California’s neglected social service programs: Thousands of addicts and mentally ill people have traded a life behind bars for a churning cycle of homelessness, substance abuse and petty crime.

Prop 47 earmarked millions saved in prison costs for inmate rehabilitation, but not a penny has been spent. Meanwhile, the state’s shortage of treatment programs is more glaring than ever. Expanding rehab would be expensive, but it is still a cheaper, more effective and more humane strategy for addressing addiction than locking drug abusers in prison.

"The problem is, if you don’t actually do anything to change conditions of their lives, they’re going to be back on the streets anyway," said Elliot Currie, a University of California, Irvine criminologist.  "What’s to prevent them from going back to the same old ways when they get out? The answer is nothing."

This alarming lack of support services is one key finding in a landmark investigation by USA TODAY Network-California journalists who spent seven months analyzing the impacts of Prop 47, a sweeping criminal justice reform law that has been debated and demonized but rarely understood. To uncover the ramifications of the law, reporters from four publications — The Desert Sun, The Ventura County Star, The Record Searchlight and The Salinas Californian — filed 65 records requests, scrutinized thousands of pages of public documents and performed over 50 interviews with policymakers, academics, police, district attorneys, public defenders, drug addicts and former felons. Among our findings:

  • California police have dramatically deprioritized drug busts in the wake of Prop 47, arresting and citing about 22,000 fewer people in 2015, a 9.5 percent decrease in the first year since the possession of meth, heroin and cocaine was downgraded to a misdemeanor.

  • Nearly 200,000 felony convictions have been retroactively erased by Prop 47 as of September, according to a first-ever analysis.  Government agencies were not required to track how many convictions were reduced, so journalists gathered public records from 21 counties to calculate a statewide estimate.  Many former felons will be slow to take advantage of their restored rights because they are unaware their convictions have been downgraded.

  • For those who are aware, however, Prop 47 offers an unparalleled chance for better jobs.  Tens of thousands of people no longer have to report felony convictions on job applications, making them drastically more employable than they’ve been in years or decades.

Michael Romano, a Stanford law expert who helped write Prop 47, stressed in a recent interview the law has been "amazingly successful" in its primary goal, which was always to get low-level drug offenders out of California’s crowded, damaging prison system.  But tackling drug addiction and mental illness, which plague so many who were released under the law, is a task that will require investing hundreds of millions of dollars in community treatment programs across the state.   "It is incumbent on local governments to engage this problem," Romano said. "Prop 47 was not a cure-all. It’s not a panacea.  It is one piece in an extraordinarily complicated puzzle — perhaps the most complicated puzzle in our communities."

December 15, 2016 in Drug Offense Sentencing, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (1)

Tuesday, December 13, 2016

A deep look into Alabama's new sentencing systems and their impacts

6a00d83451574769e2019affbb5974970cBecause our next Attorney General (and perhaps also our next Supreme Court justice) emerged from and still have roots in the Alabama legal system, I thought it timely and valuable to spotlight this lengthy local article about Alabama sentencing reforms headlined "How has prison reform impacted Alabama?" Here are excerpts:

The criminal justice system has historically relied on human judgment for sentencing, but Alabama’s recent criminal justice reforms are attempting to equate human error to a quantifiable number. Crimes now equal a score that effectively decides an offender’s punishment. A similar score sheet labels parolees as high, medium or low risk.

Alabama is a bit of a trendsetter — for better or for worse — on the criminal justice front, said Bennet Wright, executive director of the Alabama Sentencing Commission tasked with both implementing the 2013 and 2015 reforms as well as crunching the data. “With the passage of the 2015 reforms, I think you’re seeing Alabama acknowledge for the first time that data driven decisions need to be the driving force of all criminal justice policy,” Wright said. “That’s a huge shift in policy. Obviously that’s not something everybody will jump on board with, but I think it’s important to make decisions, particularly ones that have huge price tags attached to them, to much more of a data driven process.”

The reforms are not without controversy. Attorneys remain critical of the sentencing guidelines, and judges are split on whether or not the score sheets rob them of their ability to adjudicate, but the reforms have shown promising returns in popping the balloon on Alabama’s prison population and the data collected over the next few years could continue to spur progressive criminal reform.

The two-pronged reform began with the implementation of presumptive sentencing guidelines in 2013 that essentially reduced sentencing decisions to a score sheet in an effort to be more selective and consistent about who gets locked away. For drug offenses, eight or more points — perhaps a distribution of marijuana charge (6 points) and a possession with intent to distribute charge (5 points) — will land that person in prison barring mitigating factors. For property crimes, 15 points is required for a prison sentence. Both sheets also add points for prior adult convictions, incarcerations, probation revocations and juvenile delinquencies, but the idea was — and still is — to send fewer non-violent offenders to prison to relieve the burden on a prison system that, at the time the guidelines were implemented, housed nearly twice the inmate population (25,299) than it was designed for (13,318).

The guidelines also made sentencing consistent across the state. A possession of marijuana charge, for instance, no longer relies on the presiding judge’s views of the drug. “Some judges are heavy on possession of marijuana. They detest it and (before the guidelines) would give harsher sentences than other judges would,” said former Montgomery County Circuit Judge William Shashy who retired this past month.

The 2015 prison reform, also known as Senate Bill 67 sponsored by Sen. Cam Ward, R-Alabaster, focused more on fighting the bloated prison system. A new class of felony, Class D, was created for sentencing guidelines to include non-violent offenses such as minor drug possession and third-degree theft. Those crimes now carry the lowest point totals as legislators are more concerned with locking up violent offenders. “They’re focused on felony offenses the Alabama Legislature has deemed non-violent. Mostly drug and property offenses,” Wright said.

If fewer non-violent offenders are going to prison, more are naturally going to parole and probation. The bill accounted for that by injecting funding into the state parole system to hire 100 more parole officers. Darrell Morgan, assistant executive director of the Board of Pardons and Paroles, said they have hired 71 additional parole officers as of the end of October. Seventeen more are currently being interviewed, and Morgan said more officers will be added using their general fund in an effort to reduce parole officers’ caseloads. “When this began we were around 200 cases per officer. Our target is to have everybody down to 100 offenders per officer by the end of the fiscal year (Sept. 30),” Morgan said. “That was one of the biggest issues with previous parole boards was we didn’t have the adequate staff. Now that these numbers have increased we’re able to better manage our caseloads and we can manage more people.”...

Montgomery County Deputy District Attorney Ben McGough said the sheets and implementation of Class D felonies have incentivized crime and taken the teeth out of the justice system. “When a defendant looks at their sheet and their score is two and it takes 15 to go to prison, they’re guaranteed from the beginning. You’re not going to prison no matter what happens,” McGough said. “Then they look at the sheet and think, ‘I’ve got 13 points to burn.’ they can look at the sheet, do the math, and think, ‘I can do four more non-violent offenses before the judge even has the option to send me to prison.’ And we’re literally giving them the figures.”

On the defense side, Public Defender’s Office Director Aliya McKee said the sheets reduce her clients to a figure instead of treating each case as a unique situation. “Our clients, from my perspective, get reduced to a number,” McKee said. “I’m somewhat comfortable with that being the starting point, but it’s not the solution. We want the court to see the person behind the charge. The name, not the case number.”...

As judges and attorneys feel their way through the reforms, all eyes are keen to judge what impact reforms have had on key statistics such as prison population, crime rate, parole caseload and recidivism. It’s still too soon to make definitive claims, but Wright said some early data returns are promising. State prison population, for example, has dropped from 25,299 in 2013 (189.9 percent capacity) to 23,318 this year (175 percent). “I think the initial results of the presumptive sentencing standards are promising,” Wright said. There has been a steady decrease in the prison population averaging 80-100 fewer inmates per month.”

State crime rate has also dropped during the period going from nearly 174,000 total crimes in 2013 (about 3,586 crimes per 100,000 people) to just over 162,000 this year, however, that rate was already falling from 191,318 in 2011 and 181,752 in 2012, according to Alabama Law Enforcement Agency.

Parole caseload has also begun to dip slightly. Morgan said it took longer than expected to hire new officers but active caseload is down to about 145 cases per officer. When adding inactive cases, that decline looks much smaller (about 215 per officer to about 195), but Morgan said the reform has had a noticeable impact. “(Adding inactive cases) makes the numbers still look high, but the hiring of the officers have gotten our active caseload down to a manageable level, which is lower than it was. But we still have to hire more people,” Morgan said....

On a local level, one particular statistic has the District Attorney’s Office concerned that the guidelines may be doing more harm than good for public safety. Montgomery has seen 530 more thefts this year than last year, and many in the DA’s office, including Chief Deputy District Attorney Lloria James, see the lenient sentencing guidelines as the blame.

“Those statistics don’t surprise us at all. It’s almost like a revolving door,” James said. “The problem is sort of like word travels fast on a college campus or neighborhood or things like that, in the criminal community word travels fast, and I think it’s gotten out there that pretty much if it’s non-violent — thefts, burglaries things like that — there’s almost zero chance you’re going to see some prison time, so it’s worth it to them.”

Whether or not there is a connection remains up for debate, but that hasn’t stopped District Attorney Daryl Bailey from reaching out to Sen. Ward in recent weeks about possibly making some changes. “We’ll continue looking at it, but we’ve done a lot of reform already,” Ward said. “Obviously that’s a point being made by the district attorneys, but if there's any changes needed to be made in the guidelines we need to do that. We need to make sure it's prudent for the safety of the public.”

The reforms have shown themselves not to be perfect, but Wright said that should engender further study and support in his ideal scenario. The reforms were put in place after studying prison reform in other Republican states such as Texas and North Carolina, but implementing front-to-back change is “trendsetting,” Wright said.

For now, the state must wait and see what the numbers hold. “It’s a little daunting, but that’s trendsetting to have this big of a process going on at one time,” Wright said. “That’s also why I tell people both for it and against it to take a deep breath and let’s do our best to implement it. I think with a lot of things, people get in the way of things before they implement it. We owe it to ourselves to embrace what the Legislature passed and what the intent was. Let’s give it our best good faith effort, wait a while and then sit around the table and talk about it then.”

December 13, 2016 in Procedure and Proof at Sentencing, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)

Thursday, December 08, 2016

Fascinating accounting of considerable racial disparity in Florida sentencing

A helpful reader altered me to an extraordinary series of articles now in the Sarasota Herald-Tribune examining disparities in Florida's sentencing system, all under the heading "Bias on the Bench."  The lead article is headlined "Florida’s broken sentencing system: Designed for fairness, it fails to account for prejudice," and it starts this way:

Justice has never been blind when it comes to race in Florida. Blacks were first at the mercy of slave masters. Then came Jim Crow segregation and the Ku Klux Klan. Now, prejudice wears a black robe.

Half a century after the civil rights movement, trial judges throughout Florida sentence blacks to harsher punishment than whites, a Herald-Tribune investigation found. They offer blacks fewer chances to avoid jail or scrub away felonies. They give blacks more time behind bars — sometimes double the sentences of whites accused of the same crimes under identical circumstances.

Florida lawmakers have struggled for 30 years to create a more equitable system. Points are now used to calculate sentences based on the severity of the crime, the defendant’s prior record and a host of other factors. The idea is to punish criminals in Pensacola the same as those in Key West — no matter their race, gender or wealth. But the point system has not stopped discrimination.

In Manatee County, judges sentence whites convicted of felony drug possession to an average of five months behind bars. They gave blacks with identical charges and records more than a year. Judges in the Florida Panhandle county of Okaloosa sentence whites to nearly five months for battery. They lock up blacks for almost a year. Along the state’s northeast shore, judges in Flagler County put blacks convicted of armed robbery away for nearly triple the time.

“It’s unconscionable,” said Wengay Newton Sr., a former St. Petersburg city commissioner and Democrat, who was elected to the Florida House of Representatives in November. “That’s like running a red light in a white car and your ticket is $100 and running a red light in a black car and your ticket is $300.”

The Herald-Tribune spent a year reviewing tens of millions of records in two state databases — one compiled by the state’s court clerks that tracks criminal cases through every stage of the justice system and the other by the Florida Department of Corrections that notes points scored by felons at sentencing.

Reporters examined more than 85,000 criminal appeals, read through boxes of court documents and crossed the state to interview more than 100 legal experts, advocates and criminal defendants. The newspaper also built a first-of-its-kind database of Florida’s criminal judges to compare sentencing patterns based on everything from a judge's age and previous work experience to race and political affiliation.

No news organization, university or government agency has ever done such a comprehensive study of sentences handed down by individual judges on a statewide scale. Among the findings:

• Florida’s sentencing system is broken. When defendants score the same points in the formula used to set criminal punishments — indicating they should receive equal sentences — blacks spend far longer behind bars. There is no consistency between judges in Tallahassee and those in Sarasota.

• The war on drugs exacerbates racial disparities. Police target poor black neighborhoods, funneling more minorities into the system. Once in court, judges are tougher on black drug offenders every step of the way. Nearly half the counties in Florida sentence blacks convicted of felony drug possession to more than double the time of whites, even when their backgrounds are the same.

• Florida's state courts lack diversity, and it matters when it comes to sentencing. Blacks make up 16 percent of Florida’s population and one-third of the state’s prison inmates. But fewer than 7 percent of sitting judges are black and less than half of them preside over serious felonies. White judges in Florida sentence black defendants to 20 percent more time on average for third-degree felonies. Blacks who wear the robe give more balanced punishments.

• There’s little oversight of judges in Florida. The courts keep a wealth of data on criminal defendants. So does the prison system. But no one uses the data to review racial disparities in sentencing. Judges themselves don’t know their own tendencies.

Without checks to ensure equality, bias reigns.

Here are links to the other pieces in the series:

December 8, 2016 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (11)

Wednesday, November 02, 2016

Advisory Nevada commission advises the creation of a sentencing commission to create advisory sentencing guidelines

This new local article, headlined "Panel calls for commission to set Nevada sentencing guidelines for criminal offenses," reports on a recommendation by one commission to create another commission to make sentencing recommendations. Here is how the article begins:

A criminal justice advisory panel agreed Tuesday to recommend that state lawmakers establish a special commission to set statewide sentencing guidelines for crimes.  Creation of a sentencing commission, which would work to bring consistency to sentencing practices statewide, was one of several recommendations of the Advisory Commission on the Administration of Justice for consideration by the 2017 Nevada Legislature.

The commission, led by state Supreme Court Justice James Hardesty, has met numerous times since the last legislative session to scrutinize Nevada’s criminal justice system and recommend reforms.  Hardesty envisioned a sentencing commission modeled after one adopted in Connecticut that considers a crime’s severity and a defendant’s criminal history.  Judges could deviate from recommended sentencing guidelines but would have to explain their reasoning, which would be subject to possible appellate review.

He said it would make the criminal justice system fairer and reduce racial disparity. “This is something that we can do now,” Hardesty said. “This is something the Legislature can do now.”

He noted a previous study that showed a wide gap in sentences around the state. Some judges, he said, sentenced defendants to prison 30 percent of the time and other defendants more than 60 percent of the time for similar crimes.

November 2, 2016 in State Sentencing Guidelines, Who Sentences? | Permalink | Comments (1)

Tuesday, November 01, 2016

"Reducing the Prison Population: Evidence from Pennsylvania"

The title of this post is the title of this new paper authored by Lindsay Bostwick now available via SSRN. Here is the abstract:

Four decades of rapid growth in the US incarceration rate has met with bipartisan support for reforming sentencing policies and calls to reduce the prison population. However, there is little consensus on how to achieve the reductions suggested. In this paper we project how the Pennsylvania prison population and age demographics may change through 2054 as a result of alternative sentencing policies. One consequence of the prison population growth in recent years has been the aging of those incarcerated and these increasingly older populations strain correctional resources for healthcare and other needs.

Our study finds reducing the prison population requires significant changes to the number of people sentenced to prison along with reducing the sentence length of those incarcerated. In particular, to reduce the prison population by a meaningful amount, we will have to reduce admissions to prison to 1980 rates and the sentence lengths for violent offenders to those seen in 1990. A focus on drug and low-level offenses will do little to change the population in the long run.

November 1, 2016 in Prisons and prisoners, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (0)

Thursday, October 20, 2016

GOP Gov explains how sentencing reform has "Georgia's criminal justice system smarter, fairer, more effective and less costly, while in no way sacrificing public safety"

This Washington Times commentary, headlined "Georgia’s story of redemption: Criminal justice reform is saving lives and preserving families, is authored by Georgia's Republican Governor Nathan Deal. Here are excerpts:

When I took office in January 2011, Georgia was in the midst of a criminal justice system crisis.  The state’s prison population and incarceration budget had doubled in the previous two decades and taxpayers were spending $1 billion per year to keep tens of thousands of inmates behind bars.  The recidivism rate hovered at 30 percent for adults and 65 percent for juveniles, indicating that efforts to rehabilitate offenders were not working as they should have been.

To address this crisis, I established a task force to examine reform initiatives that eventually led to the creation of accountability courts, improvements to the juvenile justice system and expanded efforts to facilitate a smoother re-entry process for returning citizens.  The Georgia General Assembly used these recommendations to enact two rounds of reforms in 2012 and 2013 that have made Georgia’s criminal justice system smarter, fairer, more effective and less costly, while in no way sacrificing public safety.  These reforms were approved with overwhelming bipartisan consensus in the Georgia General Assembly.

Since then, Georgia has seen a decrease of about 10.3 percent in the state’s prison inmate population, from roughly 60,000 to about 53,800.  Before reform initiatives had been enacted, Georgia’s inmate population was projected to grow by 8 percent in the ensuing five years, presenting taxpayers with an additional $264 million bill in that time frame.  Not only did we shred that price tag, but we were also able to forgo the construction of two additional prisons as a result of effective reforms.

The cost to incarcerate one adult offender is about $18,000 per year, which is far more expensive than an addiction rehabilitation program or mental health counseling — so it makes fiscal sense to seek alternatives to prison for nonviolent offenders whenever feasible.  Without the sentencing alternatives of the state’s 105 accountability courts, which give offenders a second chance and an opportunity to reverse the cycle of failure, thousands of nonviolent offenders with underlying addiction and mental health issues would likely be in prison.  Beyond fiscal considerations, criminal justice reform is essential to providing the successful rehabilitation to prevent former offenders from becoming repeat offenders.  Perhaps most important of all, these reforms have the long-term potential to positively change the dynamics of families, as crime is often generational....

Georgia’s criminal justice reforms have saved hundreds of millions of taxpayer dollars and will continue to do so. At the same time, we have saved lives and preserved families, and that’s what is important.

October 20, 2016 in Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)

Wednesday, August 24, 2016

Important "Real Clear" debate explores whether Texas "smart on crime" reforms have really been successful

A series of dueling posts over at the Real Clear Policy blog has been engaging with crime and punishment data from Texas to provide different views on whether so-called "smart on crime" reforms in the Lone Star State have proven truly effective at reducing both crime and imprisonment.  The discussion is too intricate to summarize here, so I encourage readers interested in this important debate to check out these post in order:

August 24, 2016 in Data on sentencing, Detailed sentencing data, National and State Crime Data, Prisons and prisoners, State Sentencing Guidelines | Permalink | Comments (0)

Monday, August 22, 2016

Noticing that the Big Apple has lately been a big nothing when it comes to major criminal justice reforms

These two new article appearing in today's New York Times provides a useful reminder that New York City and state have lately not been progressive vanguards when it comes to recent criminal justice reforms:

Here are snippets from the first article which highlight reasons why repeated and persistent criminal justice reform can often be such a significant "uphill climb" even for reform-minded political leaders:

Lawmakers across the country are experimenting with a range of criminal justice reforms, driven by protests, a reckoning with the effects of mass incarceration and anger over police killings.  But this legislative momentum has mostly stalled in an unexpected place: New York, a state led by Democrats that outlawed the death penalty more than a decade ago and did away with the last of the Rockefeller Drug Laws, which mandated strict sentences for low-level drug offenses, in 2009.

There has been hardly any legislation under the rubric of criminal justice reform passed in Albany since the governor, Andrew M. Cuomo, a Democrat, came to office in 2011, or in New York City since the Democratic mayor, Bill de Blasio, and many members of the City Council came to office in 2014 promising to overhaul police-community interactions....

Their reluctance is, in some ways, tethered to an enduring unease about public safety in New York, particularly in New York City.  Statistics show street crime at historic lows, but many people say in polls that crime is worsening. Any effort to place new limits on law enforcement or to reduce punishments could prove perilous for politicians should a spike in crime occur.

“We have to be fair to victims of crime,” State Senator Patrick Gallivan, a Republican who leads the Crime Victims, Crime and Correction Committee, said in defending the state’s unusually low age of criminal responsibility, 16. “And we need to hold people accountable.”  Though Governor Cuomo has backed raising the age to 18, the legislation has not moved forward. New York remains the only state other than North Carolina to routinely prosecute 16-year-olds as adults.

In New York City, the Police Department has successfully opposed efforts to decriminalize certain petty offenses or put legal limits on a variety of police behaviors. The Council adopted a new system for handling some minor crimes, but left the decision of when to use that system to the police. A court-ordered body-camera program, which a federal judge mandated in 2013 after finding that the police had engaged in unconstitutional street stops of black and Hispanic residents on a vast scale, has been repeatedly delayed....

If New York’s recent interest in legislating criminal justice reform lags that of other states, it is quite likely because New York had something of a head start. It is often cited by some advocates as a model.

The state has no death penalty.  The state has slashed its prison population by some 20,000 inmates from its high point in 1999, in large part because of the repeal of the Rockefeller laws. It now has an incarceration rate well below the national average. In the last five years, 13 prisons have closed. “We changed the paradigm long ago,” Alphonso David, the counsel to Mr. Cuomo, said.  “The changes that other states are now making, we’ve already made.”...

Elsewhere in the country it is often Republicans, citing the need to reduce government spending, who are providing momentum for such reforms.  That dynamic is particularly striking in the South, a region known for its high rates of incarceration and frequent executions.  A number of the laws aimed at reducing prison rates in recent years have been passed in the South or in states elsewhere with Republican-controlled legislatures.

August 22, 2016 in Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)

Thursday, July 14, 2016

Scouting Mike Pence on criminal justice: likely Trump VP pick with notably mixed reform record

According to the latest headlines and alerts Mike-pence on my smart phone, the word today is that GOP Prez candidate Donald Trump is poised to select Indiana Gov Mike Pence as his running mate.  As a supporter of sentencing reform, I am disappointed a bit that Newt Gingrich did not make the cut, as he has been a recent vocal and repeated supporter of the "Right on Crime" sentencing reform efforts.  (That said, Newt often sounded like a member of the tough-and-tougher GOP crowd in the past, and thus I would not have felt confident that even a Newt pick would signal a Trumpian affinity for sentencing reform.)

Gov Pence's record on criminal justice reform is decidedly mixed, and these linked press stories about various aspects of his work as Indiana's chief executive document the basics:

From May 2013 here, "Indiana Gov. Mike Pence signs sentencing, expungement bills into law":

Indiana Gov. Mike Pence has signed bills to revamp the state's felony sentencing laws and give some offenders the ability to expunge their records. "Indiana should be the worst place in America to commit a serious crime and the best place, once you've done your time, to get a second chance," Pence said in a statement.

The sentencing legislation — House Bill 1006 — is the product of three years of work by lawmakers, judges, prosecutors and others. It's the first wholesale overhaul of the criminal code since the 1970s. It will move Indiana's system of four felony classes to one that has six felony levels. It also requires offenders to serve 75 percent of their sentences instead of the 50 percent currently required....

Pence had expressed concerns about an earlier version of the bill, saying it was too soft on offenders convicted of drug crimes. But lawmakers made changes that appeased the governor. Pence said Monday that the bill will "reform and strengthen Indiana's criminal code by focusing resources on the most serious offenses."

House Bill 1482 gives those Hoosiers previously convicted of crimes the opportunity to essentially have their records wiped clean — if they've had a sustained period without a new offense. The bill sets different standards for different crimes.

Pence the bill will strengthen their opportunities for gainful employment. Businesses will no longer be able to ask applicants if they've been convicted of felonies. Instead, they'll have to ask if they've been convicted of felonies that have not been expunged. The new law "will give a second chance to those who strive to re-enter society and become productive, law-abiding citizens," Pence said. 

From March 2016 here, "Pence reinstates mandatory minimum prison terms for some drug crimes":

Gov. Mike Pence is toughening his stance toward drug dealers ahead of a likely bruising re-election campaign where he'll have to answer for Indiana becoming the nation's methamphetamine capital on his watch. The Republican signed into law House Enrolled Act 1235 on Monday, reinstating a 10-year mandatory minimum prison term for a person convicted of dealing meth or heroin who has a prior conviction for cocaine, meth or heroin dealing.

"Drug-abuse problems are not unique to our state, but I'm determined to meet this challenge head-on," Pence said. "We need to make it clear that Indiana will not tolerate the actions of criminals, and I'm pleased to sign into law HEA 1235 to increase penalties on drug dealers."

An analysis of drug-dealing convictions since criminal sentencing reform was enacted in 2014, conducted by the nonpartisan Legislative Services Agency, found just four of the 119 individuals convicted of meth or heroin dealing had a prior conviction and were sentenced to less than 10 years in prison — receiving on average 7.5 years.

More concerning for some lawmakers, including state Sen. Karen Tallian, D-Ogden Dunes, is Pence reversing course on his past actions to eliminate mandatory minimums by now reducing the ability of judges to issue the appropriate sentence for each criminal and giving prosecutors the upper hand in plea bargaining with an accused.

Given this governing histry, I am inclined to call Gov Pence comparable to Prez candidate Trump (and also Prez candidate Clinton) in the arena of criminal justice reform: if you try hard enough, you can readily find a basis to be very encouraged or a basis to be very discouraged by his statements and record.

July 14, 2016 in Campaign 2016 and sentencing issues, Mandatory minimum sentencing statutes, Reentry and community supervision, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)

Alaska joins ever-growing list of "red states" enacting significant sentencing reforms

As reported in this local article, headlined "Alaska gov. signs bill to cut down on incarceration using data analytics," earlier this week the largest US state by land mass became the latest "red state" to enact significant data-driven sentencing reforms intended to reduce prison populations. Governor Bill Walker penned this op-ed in conjunction with his bill signing, which includes these notable passages highlighting the successes of reforms in other "red states":

The criminal justice reform bill makes a number of very positive changes.  A 13-member criminal justice commission — comprised of judges, prosecutors and members of the law enforcement community — spent seven months participating in a rigorous, data-driven process that led to 21 recommendations.

Each recommendation was rooted in research, and most were modeled after successful policies in other states. Those recommendations became SB 91.  The bill was vetted through more than 50 hearings in five legislative committees. It passed with two-thirds majorities in both the House and the Senate.

For the past decade, criminal justice policy has been developed without data or research.  That needed to be changed. Senate Bill 91 is a reform effort aimed at maximizing the public safety return for each dollar spent.

Alaska has the highest per-capita rate of violent crime and one of the highest recidivism rates in the country.  Rather than continue to spend more money on longer sentences that did not change criminal behavior or reduce crime, the Justice Reinvestment Initiative redirects some of those resources into proven strategies.

Senate Bill 91 reinvests $99 million over six years into crime-reduction programs, such as substance abuse treatment, re-entry services, pretrial supervision, violence prevention and victims’ services.  Senate Bill 91 is expected to produce significant savings to the state by averting projected growth in the prison population and reducing the current prison population by 13 percent over the next decade.  The reforms are estimated to save a total of $380 million ($211 million in direct net savings; $169 in savings from averted growth).

These reforms are working in other states:

• South Carolina has seen a 12 percent reduction in crime since reform was adopted in 2010.

• Kentucky has seen a 17 percent reduction in crime since adopting reform in 2011.

• South Dakota has seen an 8 percent reduction in crime since adopting reform in 2013.

• Texas stopped building more prisons and invested instead on programs proven to reduce recidivism. The state has now averted $3 billion in prison costs, and crime has declined 26 percent — the lowest since 1968.

All of these states reduced their prison populations and reinvested in crime-reduction strategies.

The current approach in Alaska is not working.  It can be likened to taking a broken car to a mechanic who only has a wrench and a screwdriver.  More time in the shop with the same limited tools won’t fix the car.  Senate Bill 91 provides more tools.

About 9 in 10 of our prisoners will eventually return to our communities.  Our task is to ensure proper supervision and treatment to change criminal behavior.  Lower recidivism rates mean fewer prisoners and fewer victims, and a healthier, safer Alaska for all of us.

July 14, 2016 in Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (1)

Thursday, July 07, 2016

Does Massachusetts have a problem with under-punishment of convicted rapists?

The question in the title of this post is prompted by this new Boston Globe article headlined "Dozens of convicted rapists in Mass. have avoided prison. " Here are excerpts:

More than three dozen people convicted of rape in Massachusetts in recent years have received no prison time for their crimes, state data show, including several who had lengthy criminal histories.  A Globe review of Massachusetts court system statistics on 305 rape convictions in the 12-year period that concluded at the end of June 2013 found that in 42 cases, or about 14 percent of the time, defendants received no prison time.

They included two defendants who had a record of either “repetitive” or “violent” convictions, and three had a “serious record.” Seven had a “moderate record” of convictions, while 30 had either never been convicted of a crime or had been convicted of what the court system considered minor offenses. The figures come from annual reports by the Executive Office of the Trial Court.

“If you look at any other violent, serious felony, this would never happen,” said Colby Bruno, an attorney at the Victim Rights Law Center in Boston.  Rapists should not be given leniency when it comes to sentencing, Bruno said.

In Massachusetts, state sentencing guidelines call for anyone convicted of certain serious crimes, including rape, to be sentenced to some period of incarceration. For rape, the minimum recommended sentence is five years. But judges aren’t required to follow the guidelines.  The Massachusetts data reviewed by the Globe showed that convicted rapists who were incarcerated were typically sentenced to between five and 10 years in prison, and that defendants with more troubling criminal histories usually received lengthier sentences....

National statistics on criminal sentencing are limited. But a federal study on cases that began in 2009 in large urban US counties found 11 percent of convicted rapists were not sentenced to jail or prison time. For those who were incarcerated, the median prison sentence length was 10 years....

The Globe’s review of the data focused on convictions under Massachusetts’ definition of rape, which is described as nonconsensual sex with someone by using force or the threat of bodily injury. The review did not look at other classifications of the crime, such as aggravated, statutory, or child rape. The reports did not detail specific cases. The state trial court office, which is exempt from public record disclosure laws, declined to release further details. The most recent year for which data was available was fiscal year 2013.

Defense attorneys, as well as former judges and prosecutors, offered several potential reasons why someone convicted of rape might not get prison time. One of the most likely scenarios, experts said, would be a plea bargain.  A prosecutor with a weak case could offer, in exchange for a guilty plea, to recommend a lesser sentence such as probation to the judge.

Getting a conviction and at least some punishment for the defendant is sometimes viewed as a better option than risking losing the case at trial.  It also removes the possible need to bring a traumatized victim to testify. “The ultimate goal is to decrease crime and hold people responsible, and sometimes that can come in different forms and packages,” said law professor Mary G. Leary, a former prosecutor whose focus included sexual assault cases.

In another possible scenario, a victim might ask the judge not to incarcerate the assailant. “Sometimes, when you have parties who know each other, they want the person convicted, but they don’t want them to be incarcerated,” said Christine Cole, executive director of the Crime & Justice Institute, part of the Boston-based nonprofit Community Resources for Justice.

In addition, judges carefully weigh many factors when making sentencing decisions. Factors can include the specific facts of the crime, and whether the defendant cooperated with prosecutors, showed remorse, has a criminal past, and is likely to reoffend, specialists said. The details of each case are critical, said Nancy Gertner, a former federal judge in Boston and a former defense attorney. For example, Gertner said, she routinely encountered cases where defendants, particularly those with drug addiction problems, “wound up with these very long rap sheets, but of relatively minor offenses.”

Some observers, including Cole and Gertner, said they believe judges sentence appropriately in the vast majority of cases. Martin Rosenthal, a longtime criminal defense attorney and Massachusetts Sentencing Commission member, agreed, saying that while “it’s certainly unusual for someone to be convicted of rape and not get incarcerated . . . I don’t think that rape is being diminished in any way” by judges or the justice system.  “The idea that we’re being soft on rape as a society is just not true,” he said.

July 7, 2016 in Offense Characteristics, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (1)

Tuesday, June 28, 2016

Overview of state-level sentencing and criminal justice reform developments

The Pew Charitable Trusts has this new Stateline report headlined "Prisons, Policing at Forefront of State Criminal Justice Action." Here are excertps:

Faced with overcrowded prisons and evidence that lengthy sentences don’t deter crime, more states opted this year to revamp sentencing laws and send some people convicted of lesser, nonviolent crimes to local jails, if they’re locked up at all.

In an about-face after a half-century of criminal justice policies that favored long-term incarceration, Alaska, Kansas and Maryland this year joined at least 25 other states in reducing sentences or keeping some offenders out of prison.

The move to end lengthy prison stays for low-level offenders is one of several steps states took this year in reevaluating criminal justice policies during legislative sessions that have wrapped up in all but a few places. Other measures would help offenders transition back into their communities after release and hold police more accountable.

For years, many lawmakers were wary of appearing soft on crime. But states have recently retooled their criminal justice policies in response to tight post-recession budgets, shifting public opinion and court rulings demanding they ease prison overcrowding....

Alaska, Maryland and Kansas passed bills this year that divert all shoplifting and first-time DUI offenders away from prison, eliminate mandatory minimum sentences for low-level drug offenders, expand parole eligibility, and establish diversion programs for youth offenders, respectively.... And in Tennessee, lawmakers changed standards for property theft charges to help reduce the prison population, and established alternatives to re-incarceration for offenders who violate conditions of their parole or probation.

Many of the proposals enacted this year strike a complicated balance between boosting support for ex-offenders and ensuring that those convicted of crimes are held accountable. Relaxing sentencing and increasing the amount of good-time credits prisoners can earn toward an early release means hardened criminals might get out of prison sooner than they should, said Maryland Del. John Cluster, a retired police officer.

But he said his state could have gone farther to help offenders with job training and other re-entry assistance once they serve their time. “You clean an addict up and you let him out,” Cluster, a Republican, said. “[If] he doesn’t have a job, in less than a year he’s going to be back on the drugs.”

Many lawmakers are eager to reduce the expenses that come with running prisons. For example, prison systems cost taxpayers 14 percent more than state budgets indicate because they do not factor in expenses like benefits for correctional employees and hospital care for inmates. Prisons also strain local social services, child welfare and education programs.

But still, some elected officials want to build more. In Alabama, Republican Gov. Robert Bentley proposed spending $80 million to consolidate some of the state’s existing prisons and build four new ones. The state has one of the most overcrowded prison systems in the country, operating at 180 percent of capacity.

June 28, 2016 in Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)

Friday, June 03, 2016

Appellate judges certify to Florida Supreme Court whether state sentencing scheme violates Due Process Clause or Eighth Amendment

A helpful reader alerted me to a remarkable decision handed down earlier this week by the Florida's Fourth District Court of Appeals. The reader provided this helpful summary that I could reprint here (with my emphasis added):

The Fourth District Court of Appeal wrote a decision that (in essence) asks our Supreme Court to revisit the constitutionality of our sentencing scheme, a scheme that gives judges complete discretion to sentence a defendant anywhere between a calculated "lowest permissible sentence" and the statutory maximums stacked end to end. This system of nearly unlimited sentencing discretion is everything Judge Frankel decried, and the sentence the court reviewed is a case in point: the defendant was 55 years old, he had no prior record, and his "lowest permissible sentence" was 23.7 months in prison.  For trying and failing to steal three boat motors he was sentenced to 35 years in prison (the statutory maximums stacked end to end), effectively a life sentence.

Judge Gross wrote a thoughtful and scholarly concurring opinion that begins with the history of sentencing in Florida, talks about the evils of unfettered sentencing discretion, and ends with Judge Frankel and his modest proposal that judges be required to explain their sentencing decisions (at present they need say nothing).

Here is the question the court certified to Florida Supreme Court as one of great public importance:

Does a sentence within the statutory maximum under the Criminal Punishment Code violate either the Due Process Clause or Eighth Amendment when it is significantly greater than the lowest permissible sentence on the defendant’s scoresheet or the offered plea and grossly disproportionate to the median sentence imposed for similar crimes within the jurisdiction?

Alfonso-Roche v. Florida, No. 4D13-3689 (Fla. 4th DCA June 1, 2016) (available here).

I do not know enough about Florida's appellate procedures to know if the Florida Supreme Court will now have to, or at least is now very likely to, take up these important constitutional issues.  But for anyone and everyone working in state or federal systems worried about the exercise of unfettered sentencing discretion, this Alfonso-Roche decision is today's must-read.

June 3, 2016 in Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (7)

Wednesday, June 01, 2016

"Correctional Control: Incarceration and supervision by state"

The title of this post is the title of this notable new data-rich report from the fina folks at the Prison Policy Initiative. Here are excerpts from the text at the start of the report (with links from the original):

Prisons are just one piece of the correctional pie. When states are judged solely on their incarceration rates, we are ignoring the leading type of correctional control: probation. In fact, some of the states that appear to be least punitive are the most likely to put their residents under some other form of correctional control. Other states are making changes to their criminal justice systems that shift large numbers of people from one part of the correctional pie to another.

For the first time, this report aggregates data on all of the kinds of correctional control: federal prisons, state prisons, local jails, juvenile incarceration, civil commitment, Indian Country jails, parole and, lastly but importantly, probation.  We make the data accessible in one nationwide chart and 100 state-specific pie charts.

Incarceration rates do not always tell the complete story of the criminal justice system in each state.  Notably, some of the states that are the least likely to send people to prison, such as Rhode Island and Minnesota, are among the most punitive when other methods of correctional control are taken into account.  Other states that rank in the bottom half of incarceration rates nationwide, such as Ohio and Idaho, end up surpassing Louisiana — the state notorious for being the global leader in incarceration — in rates of correctional control.  Georgia is punitive from any angle, as the only state that is both a top jailer and leader in probation.

We find that this tremendous variation between the states is largely driven by differences in the use of probation, which is the leading form of correctional control nationally. A majority (56%) of people under the control of the American criminal justice system are on probation. Despite receiving little public attention, probation is a significant component of each state’s criminal justice system. While states vary when it comes to their use of prisons and jails, there is far greater variation in their use of probation. For example, in Nevada, 31% of the people under correctional control are on probation whereas in Georgia, a whopping 78% of people under correctional control are on probation.

Georgia’s rate of probation is more than double every other states’ rate of probation and greater than every other states’ total rates of correctional control. One reason why Georgia’s use of probation has ballooned to these levels is that the state uses privatized probation, which unnecessarily puts Georgia residents with extremely minor offenses on probation.

Parole (a type of conditional release from prison) makes up 11% of the correctional population nationally and also varies widely between states, sometimes in ways unrelated to the size of the state prison population.  We find that for every 100 people incarcerated in a state prison in that state:

  • Maine has 1 person on parole.
  • Florida has 4 people on parole.
  • Arkansas has 117 people on parole.
  • Pennsylvania has 198 people on parole.

June 1, 2016 in Criminal Sentences Alternatives, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)

Monday, May 30, 2016

New Vera Institute report reviews trends in state sentencing and corrections

Download (3)The folks at The Vera Institute of Justice's Center on Sentencing and Corrections released last week a terrific report on state sentencing developments under the title "Justice in Review: New Trends in State Sentencing and Corrections 2014-2015." The full 72-page report (with lots of charts) is available at this link; a short summary is available here and includes this text: 

Prompted by dissatisfaction with stubbornly high rates of return among those released from prison, and encouraged by public opinion polls that show a majority of the electorate believes that prison growth has yielded insufficient public safety gains, there is an emerging consensus across the political divide that America’s over-reliance on prison has been too costly and ineffective. Driven by the need to find better solutions, policymakers over the past several years have embraced decades of research and analysis examining what works in corrections to reduce recidivism and improve public safety.

Informed by this research and analysis, 46 states in 2014 and 2015 enacted at least 201 bills, executive orders, and ballot initiatives to reform at least one aspect of their sentencing and corrections systems. These included laws to

  • create or expand opportunities to divert people away from the criminal justice system: States increased the use of alternative case dispositions, such as deferred adjudication programs, which allow people with first-time or low-level charges to avoid entering a guilty plea or ending up with a record of conviction if they serve a crime-free probationary period. States also expanded or strengthened the use of problem-solving courts that channel people with specific treatment needs, such as mental illness or substance abuse issues, into alternative judicial settings that provide intensive supervision in the community and treatment in lieu of prosecution or sentencing. Still other states passed laws that empower arresting officers to divert certain defendants—especially those with an identified mental health need—into treatment instead of detention;

  • reduce prison populations: States enacted laws to reduce or contain prison populations by 1) making certain offenses eligible for community-based sentences; 2) reducing the length and severity of custodial sentences by redefining or reclassifying crimes or repealing mandatory penalties; 3) shortening lengths of stay in prison by expanding opportunities to earn sentence credits, which shave off time in custody and advance parole eligibility; and 4) reducing the influx of people into prison for violations of community supervision by implementing evidence-based practices such as graduated responses to violations; and

  • support people’s successful reentry into the community: To reduce recidivism, states changed their reentry systems to provide better coordination between prisons and community supervision agencies and to increase programming and treatment. In addition, states are supporting family relationships by facilitating family visitation, supporting relationships between incarcerated parents and their children, and ensuring that children of incarcerated people receive care and support. States are also helping people who are justice-involved obtain benefits, state identification, and exercise their voting rights; improving employment prospects by limiting bars on professional licenses and providing certificates of rehabilitation and employability; waiving fines and fees that often create economic obstacles to reintegration; and making it easier for people to expunge prior convictions and more difficult for private entities to disseminate criminal-records data.

May 30, 2016 in Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)

Thursday, May 19, 2016

Major sentencing reform becomes reality in Maryland

S-l300One of the nicknames for Maryland (which happens to be the state where I grew up) is the "Free State." And today, as reported in this new Baltimore Sun article, the state has now enacted criminal justice reforms that help justify the continued appropriateness of this nickname. Here are the details:

Maryland officials are about to take steps to reduce the state prison population by more than 1,000 inmates while plowing millions of dollars into crime prevention.

Gov. Larry Hogan on Thursday signed the state's broadest criminal justice legislation in decades — a package that will reduce sentencing guidelines for drug dealers, thieves and other offenders, while increasing the number of crimes that can be wiped from an offender's record fivefold. Users of illegal drugs will be steered toward treatment, not incarceration. And new rules will help the state go after criminal gangs.

The Justice Reinvestment Act, a document of more than 100 pages, is a seismic shift from policies adopted during the late-20th century war on drugs, which critics say led to governments wasting money on incarceration that did little to increase public safety.  By reducing the Maryland prison population by about 1,100 people over the next 10 years, officials expect to save an estimated $80 million that can be redirected toward programs intended to prevent crime.

The bill was a compromise reached among Republicans and Democrats, prosecutors and defenders, civil libertarians and victims' rights advocates. Hogan said the bill "represents the largest and most comprehensive criminal justice reform to pass in Maryland in a generation."

But some officials and advocates say Hogan's approval, which came as he signed 144 bills in the final such ceremony this year, should begin an evaluation process. Some say doing away with mandatory minimum sentences was a mistake, as was reducing sentences for some drug offenses. Others bemoan the increased penalty for second-degree murder, and say not enough other penalties have been reduced. Most of the bill's provisions go into effect in October 2017. Some will become law this October....

Supporters say the legislation helps only nonviolent offenders. Del. Herb McMillan, an Anne Arundel County Republican, disagrees. "Pushing heroin and other opioids isn't nonviolent," McMillan told the House during debate last monh. "Reducing jail time for heroin pushers, during an opioid epidemic, does not send the message heroin pushers need to hear."

Maryland is the 30th state to pursue Justice Reinvestment, a concept pushed by Senate President Thomas V. Mike Miller and Del. Kathleen Dumais, both Democrats. pushed after learning about it at legislative conferences. In 2015, the two sponsored successful legislation that created a council to recommend sweeping changes to lawmakers. From those recommendations, the Senate and House of Delegates crafted significantly different bills. The Senate's version was friendlier toward prosecutors. It took a marathon negotiation session two days before the end of the session to reconcile the bills.

The House backed off some of its proposed sentence reductions. The Senate agreed, reluctantly, to the repeal of mandatory minimums.

Sen. Robert A. Zirkin, who as chairman of the Senate Judicial Proceedings Committee led that chamber's work on the legislation, called its passage one of the best moments of his 18 years in the legislature. "There's never been a bill that I can recall of that magnitude, and it was a completely bipartisan, roll-up-your-sleeves and get-to-work effort," the Baltimore County Democrat said. He pointed to his close collaboration with Sen. Michael Hough, a Frederick County Republican.

Zirkin said one of the most important provisions specifies that treatment, rather than incarceration, should be the sentence for a person convicted of possessing drugs such as heroin or cocaine. "That's a more effective way to get that individual out of the criminal realm and back to being a law-abiding, tax-paying citizen," Zirkin said.

Zirkin said the bill also includes "the single largest expansion of expungement, possibly in this state's history." He said it expands the list of offenses that may be erased from public records from nine to about 50. They include misdemeanors related to theft and drug possession. The change is intended to make it easier for ex-offenders to qualify for jobs, housing and education....

Baltimore County State's Attorney Scott Shellenberger, who represented the state's prosecutors through the process, said he had to swallow hard to accept reductions to mandatory minimum sentences. He said such minimums were an effective tool in striking plea bargains.

Still, Shellenberger said, the legislation moves in the right direction. He said prosecutors have sought the increase in the maximum sentence for second-degree murder to 40 years for years. And he's pleased that lawmakers included Hogan's proposal to adopt a state version of the federal Racketeer-Influenced and Corrupt Organizations (RICO) bill to go after criminal gangs.

Paul DeWolfe, Maryland's chief public defender, served on the council that made recommendations. He said he hopes lawmakers continue to build on the reinvestment process in the coming years. An oversight commission created by the bill will make recommendations for further reforms. "I do see this as a first step, and I hope that most members of the commission and the legislature think that way as well," he said.

Shellenberger, a Democrat known for his tough approach to crime, said he hopes the oversight panel will take it slow and let the state absorb the many changes in the bill over several years. "This is such a large change to the criminal justice system that I think we need to take a break and see what savings [result] and what happens as a result of this change," he said.

May 19, 2016 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)

Monday, May 16, 2016

Smart-on-crime sentencing reforms about to become law in Alaska

A number of helpful readers have made sure I did not miss news of significant criminal justice reforms making their way through the Alaska legislature, and this recent Alaska Dispatch News piece briefly summarizes what is about to become law:

A landmark criminal justice reform bill will go to Gov. Bill Walker for his signature after the Alaska Senate on Friday agreed to changes made to the legislation by the House. Senate Bill 91, sponsored by North Pole Republican Sen. John Coghill, aims to reduce Alaska’s rising prison population and save money from the state’s corrections budget — which consumed $280 million of the state’s $4.1 billion agency operating budget this year.

The bill’s comprehensive reforms to sentencing, bail, probation and parole practices are designed to keep nonviolent criminals out of jail and to generate better results from a state justice system that sees nearly two of every three inmates return to prison within three years of their release. “We've got to break that cycle, and SB 91 is a paradigm shift that will help us do it,” Coghill said in a statement Friday.

The Senate’s concurrence vote Friday was 14 to 5. It drew support from the chamber’s four Democratic minority members and from 10 members of Coghill’s Republican-led majority; all five votes against concurrence came from Republican majority members. Sen. Lyman Hoffman, D-Bethel, was absent.

The legislation was drafted with the help of a newly convened Alaska Criminal Justice Commission, which includes members with experience in the state court system, law enforcement, public defense, mental health and victims' rights. The commission’s work was supported by the Pew Charitable Trusts, which also spent $120,000 this year on a Juneau lobbyist, Kent Dawson....

In a prepared statement, Walker, who endorsed the criminal justice reform effort last year, thanked lawmakers for passing SB 91. He said his administration would review the bill’s technical elements “to make sure the policies can be applied as the Legislature has intended.”

“Alaska has some of the highest recidivism rates in the nation, so I am pleased to see our state’s elected officials taking action to address this problem while considering the balance between accountability, public safety, and achieving better outcomes from our criminal justice system,” the statement quoted Walker as saying.

May 16, 2016 in State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)

Saturday, May 07, 2016

Drug war and tough-on-crime legislation (and even more judicial discretion) keeping Ohio's prison population growing

My own Columbus Disptach has this article about Ohio's continued struggles to keep its prison population under control. The piece is headlined "Ohio prison population could hit record high this summer," and here are excerpts:

Ohio's prison population is rising, threatening to set a new record as soon as July, despite repeated efforts to divert inmates from state lockups. The number of inmates in Ohio prisons increased 15.1 percent from 2005 to 2016, according to a report released today by the Correctional Institution Inspection Committee, a legislative prison watchdog agency. At the same time, prison overcrowding hit 132.1 percent, up from 114.8.

This is happening at a time when the overall crime rate in Ohio has gone down roughly 15 percent. Gary Mohr, director of the Department of Rehabilitation and Correction, sounded the alarm at statewide opiates conference earlier this week. "I think it’s a pretty safe bet that by July 1 of this year we will set an all-time historic record of incarcerated Ohioans.”

The population stood at 50,899 on May 2; the all-time record is 51,273, set in Nov. 2008. “The day I started in this business, there were 291 women Ohio women locked up in the prison system in Ohio." Mohr said. "Today we’re at 4,300.”...

Mohr has said repeatedly he will not build another prison during his time as prisons director, which could end when Gov. John Kasich leaves office at the end of 2018. State officials have been vigorously trying for a decade to reduce the prison population, largely by diverting non-violent inmates to community-based correction and substance abuse treatment programs.

But the CIIC report points out those efforts have been undercut by new "tough on crime" laws, many of them dealing with sex offenders, passed by the General Assembly, as well as a 2006 Ohio Supreme Court ruling that relaxed requirements for judges to state specific reasons for meting out maximum sentences. As a result, the number of inmates sentenced to the maximum term increased dramatically, requiring an extra 6,700 prison beds.

Drug offenses make up 27 percent of all crimes, the largest single category, followed by crimes against person (24.7 percent), property offenses (12.6 percent), burglary (11.2 percent), and sex offenses (7.5 percent). While men still far outnumber women behind bars, women are coming to prison at a much faster rate, mostly for non-violent drug and property crimes, the report showed.

The (reader-friendly) report that provides the data for this new story can be accessed at this link.

May 7, 2016 in Drug Offense Sentencing, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (0)

Saturday, April 30, 2016

Georgia continuing to lead and innovate state sentencing reform with new focus on mass probation

The most astute observers of criminal justice systems realize that tackling mass incarceration will always be an uphill battle if we do not also look closely at the realities of (even more massive) modern probation and other laws and rules that place many persons under significant criminal justice supervision.  Consequently, I am encourage to see that the folks in Georgia, who have already been at the forefront of state-level sentencing reforms, are now turning to this issue. This local article, headlined "Nathan Deal aims to cut ‘extraordinarily high’ number of Georgia offenders on probation," tells the basic story:

Fresh off another round of changes to Georgia’s criminal justice system, Gov. Nathan Deal said he’ll urge lawmakers next year to tackle the stubborn problem of the “extraordinarily high” number of offenders on probation in Georgia. He wants to target the rise of “split sentencing” in Georgia – a practice in which a defendant serves part of the sentence behind bars, and then often a greater time outside prison. He called it an “unusual phenomenon, and we don’t know why it’s happening.”

“We have a significantly high number of people who are under probation supervision – an extraordinarily high number compared with most other states,” he said. “You’re going to see the general area of probation being a focus point.” Georgia led the nation in placing its citizens on probation in 2015 and topped the charts for its probation rate, which critics said reflected an overuse of the system.

The state moved to reform the misdemeanor probation system after an AJC investigation showed courts contract with private probation companies to “supervise” and collect payments from people who can’t afford to pay off expensive traffic tickets and other misdemeanor fines on the day they go to court. Deal’s Council on Criminal Justice Reform has recommended that lawmakers consider taking another step in 2017 by decriminalizing most traffic violations and rethinking the length of probation terms.

April 30, 2016 in Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)

Thursday, April 28, 2016

Oklahoma joins long list of "red states" enacting significant sentencing reforms

As reported in this local article, headlined "Criminal justice reform bills signed into law by Oklahoma governor," another state known for its conservative politics should now also be known as another state that has enacted significant reforms intended to soften its sentencing system and reduce its prison population. Here are the details:

Four criminal justice reform measures were signed into law by Gov. Mary Fallin on Wednesday. The action comes at a time when the state’s prison system is operating at 122 percent of capacity.

“We want to be tough on crime, but we want to be smart on crime,” Fallin said.

The criminal justice reform bills she signed Wednesday are:

  • House Bill 2472, which gives prosecutors discretion to file charges for crimes that are not subject to the 85 percent rule as misdemeanors instead of felonies. The 85 percent rule requires that those convicted of certain crimes, including rape and murder, serve at least 85 percent of their sentences before they can be considered for release.
  • HB 2479, which reduces the mandatory minimum sentence for drug offenders charged only with possession.
  • HB 2751, which raises the threshold for property crimes classified as felonies to $1,000 from $500.
  • HB 2753, which would broaden defendants’ eligibility for drug courts and community sentencing. The measures are designed to curb the growing prison population.

“These measures are just the beginning,” said Rep. Pam Peterson, R-Tulsa, the House author of the bills. Fallin said it costs just under $20,000 a year to incarcerate an offender and about $5,000 a year for one defendant in drug court.

House Speaker Jeff Hickman, R-Fairview, said the state still has a crisis in corrections and incarceration. “This is not the end of the mission,” he said, adding that other criminal justice reform bills are working their way through the legislative process.

Former Tulsa County District Attorney Tim Harris attended the bill signing in the Blue Room at the Capitol. The measures give the state more options to prevent Oklahomans from becoming convicted felons and help them get the treatment they need, Harris said. “It is not soft on crime,” he said. “It holds criminals accountable without breaking the bank. It is cost neutral to the taxpayer right now.”

Oklahoma County District Attorney David Prater said the state needs to take steps to move mental health and substance abuse treatment to the front end. “With measures like this, I do believe that ultimately we will see a decrease in the prison population while not increasing violent crime, and actually this will have a positive impact, I believe ultimately, on public safety,” Prater said.

April 28, 2016 in Drug Offense Sentencing, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)

Tuesday, April 05, 2016

Disconcerting data on racial skew in application of mandatory minimums in Iowa

This lengthy local article, headlined "Blacks hit hard by Iowa's mandatory sentences," reports on the disparity in the application of certain state sentences in the heartland. Here is how the article starts:

More than 1,190 inmates are serving time in Iowa prisons for violent crimes that, by law, require a specific number of years behind bars and at least 70 percent of the sentences be served before they're considered for parole.  And at least 35 percent of those inmates are black — in a state where 3.4 percent of the population is African-American.

If you want to know why Iowa imprisons a larger share of its black residents than almost any other state, mandatory minimum sentencing laws are one place to start, critics say.  Iowa's lopsided statistics have prompted the state’s Public Safety Advisory Board for three consecutive years to recommend that the Legislature ease sentencing mandates on two crimes — first- and second-degree robbery — that have been especially tough on African-Americans, said Thomas Walton, the board’s chairman and a Des Moines attorney.  During a four-decade period, 42 percent of Iowa inmates serving prison time for robbery were black, state data show.

A Des Moines Register review of robbery sentencing guidelines for 11 Midwestern states shows that Iowa’s are the most restrictive.  They allow the least amount of judicial discretion in determining how much time an offender will spend behind bars.  “The theory behind mandatory minimum sentences was, ‘Let’s lock them up for a longer period of time … and then we’ve avoided those re-offenses for the period of time that they’ve been incarcerated,’” Walton said. “Some of those assumptions, based on studies done by our board staff, were not necessarily correct.”

Iowa finds itself embroiled in the same debate raging nationally over the impact of mandatory minimum sentences, which were put in place during the get-tough-on-crime decades of the 1980s and '90s and have ballooned prison populations....

This year, the Iowa House, acting on part of the advisory board’s recommendation, approved a bill that includes loosening the mandatory minimum sentence for second-degree robbery.  Judges would have the discretion to say how much time an offender would serve — from three to seven years — before becoming eligible for parole on the 10-year sentence.  Now, offenders must serve at least seven years.

But Sen. Kevin Kinney, D-Oxford, filed an amendment stripping the proposal from House File 2064, which has not been voted on by the Senate.  “When there is a weapon brandished during a robbery, I have a hard time reducing the sentence,” said Kinney, a retired Johnson County sheriff’s officer.  “I just don’t want to reduce penalties for violent crimes.”

April 5, 2016 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Race, Class, and Gender, State Sentencing Guidelines | Permalink | Comments (3)

Tuesday, March 22, 2016

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

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

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

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

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

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

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

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

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

Tuesday, March 15, 2016

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

"Is Proposition 47 to Blame for California's 2015 Increase in Urban Crime?"

The question in the title of this post is a question a lot of persons who are following the broader national debate over sentencing reform are asking (as highlighted via this post by Bill Otis over at Crime & Consequences). It is also the title of this new research report authored by a researcher at the Center on Juvenile and Criminal Justice. Here is the full textual of the introduction to the eight-page CJCJ report:

In November 2014, nearly 60 percent of California’s electorate voted to pass Proposition 47. This proposition made substantial sentencing reforms by reducing certain nonviolent, non-serious offenses, such as minor drug possession and shoplifting, from felonies to misdemeanors (CJCJ, 2014). Because the changes made by the new law applied retroactively, incarcerated people serving felony sentences for offenses affected by Proposition 47 were eligible to apply for resentencing to shorten their sentences or to be released outright.  Those who already completed felony sentences for Proposition 47 offenses could also apply to change their criminal records to reflect the reforms.

Critics of Proposition 47 contended it would increase crime by releasing those convicted of dangerous or violent felonies early (see “Arguments Against Proposition 47,” 2014). Opponents also suggested that reducing the severity of sentences for certain felonies would fail to deter people from committing crimes or completing court-ordered probation requirements.

In the initial months following the passage of Proposition 47, California’s jail population dropped by about 9,000 between November 2014 and March 2015 (the most recent date for which county jail figures are available at this time) (BSCC, 2016).  State prisons reported over 4,500 releases attributed to Proposition 47 (CDCR, 2016), for a total incarcerated population decline of more than 6 percent — a substantial decrease. Similar to the initial year after Public Safety Realignment took effect, January-June 2015 saw general increases in both violent and property crime in California’s cities with populations of 100,000 or more (Table 1).  During this period, homicide and burglary showed slight declines, while other Part I violent and property offenses experienced increases.

Is Proposition 47 to blame for the increases in reported urban crimes?  This report tests this question by comparing changes in crime rates, from January–June 2014 and January–June 2015, in California’s 68 largest cities to changes in: (a) county jail populations and (b) Proposition 47-related discharges and releases from prison to resentencing counties.

March 15, 2016 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, National and State Crime Data, Reentry and community supervision, State Sentencing Guidelines | Permalink | Comments (4)

Thursday, February 25, 2016

"Does Smarter Sentencing Equal Lower Prison Numbers?"

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, February 10, 2016

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

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

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

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

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

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

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

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

Tuesday, January 26, 2016

What lessons are to be learned from California's recent experiences with sentencing reform?

The question in the title of this post is prompted by this notable new post authored by Michael Rushford at Crime & Consequences (and supplemented by Bill Otis) titled "Congressional Supporters of Sentencing Reform Need to Look at California."  As regular readers know, I have long pointed to California as a state to watch closely in the sentencing reform arena, and thus I am pleased to see this post urging federal legislators to look at California's modern reform experiences.  But while the C&C folks seem to think the California experience should lead Congress to back away from proposed statutory sentencing reforms, I see many of the problems emphasized by the C&C folks to be a result of the abject failure of California's legislature to respond wisely with statutory reforms when there was an obvious need to improve its sentencing structures.

I have previously highlighted some of these California realities in this extended 2014 post titled "Can and should California's enduring CJ problems be blamed on those who've long opposed a state sentencing commission?".  In that post, I stressed that while the tough-on-crime crowd over at C&C is eager to blame recent California developments on recent sentncing reform required by a federal court order in Plata and resulting from voter initiatives, it was this same tough-on-crime crowd that vehemently opposed and effectively blocked efforts to create a California sentencing commission to deal proactively and systematically with the state's enduring sentencing problems before they became so acute that federal court intervention was required.

The critical part of the California reform story left out from the C&C discussion is that the California legislature from 2005 to 2010 completely failed to respond in any sound way to sensible calls by sentencing reformers to deal with the state's unconstitutional prison overcrowding and the statutory sentencing problems aggravating these problems.  The court orders requiring prisoner release in Plata and the voter-approved sentencing reforms passed in subsequent elections were the direct result of federal courts and Californian voters no longer being able to trust the state's elected representatives to move responsibly forward with needed state statutory sentencing reform.   

In some ways, this potentially problematic, reactive-reform dynamic is already playing out in the federal sentencing system.  For example, the US Supreme Court has been saying in various ways for many years that Congress needed to fix various problems with the Armed Career Criminal Act.  Congress long failed to respond, and we ultimately get the Justices in Johnson striking down the ACCA statute as partially unconstitutional (which will now require the release of many offenders previously sentenced as armed career criminals).  Similarly, the US Sentencing Commission and the US Department of Justice have been saying in various ways for many reasons that Congress needs to address record-high federal prison populations.  I suspect the USSC concluded, after Congress failed to heed its repeated calls for broad statutory reforms, that it had to do something big itself (with DOJ's support) and thus voted unanimously to reduce guideline sentences for all drug offenses across the board and to make these reforms retroactive.

Now, after years of failing to heed calls by sentencing reformers (and the bipartisan US Sentencing Commission) to get ahead of statutory sentencing problems, much of Congress (now led by the GOP) has seemingly come to realize that failing to deal proactively and systematically with sentencing and corrections reform could produce even more long-term problems and challenges.  But, yet again, the tough-on-crime crowd at C&C and elsewhere is vehemently opposed to a legislature moving forward proactively and systematically with enduring statutory sentencing problems before we get to a crisis point and other actors feel compelled to get involved due to legislative inaction.

January 26, 2016 in Federal Sentencing Guidelines, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (7)

Monday, January 25, 2016

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

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

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

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

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

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

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

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