Tuesday, August 11, 2020

Am I crazy to think Joe Biden's pick of Senator Kamala Harris for his running mate bodes well for federal criminal justice reform?

Images (6)As reported in this AP piece, headlined "Biden selects California Sen. Kamala Harris as running mate," Joe Biden has finally made his VP choice. And, perhaps unsurprisingly, my Twitter feed is already chock full of criminal justice reform advocates lamenting various aspects of Senator Harris's criminal justice reform record.  Though I understand the basis for these criticisms, I have been rooting for Harris to get the nod because I think she may have the greatest interest and greatest ability to help advance federal criminal justice reform of any of the folks Biden was seriously considering for the VP slot.

Though many had hoped she would be significantly more progressive while serving as California's Attorney General, Harris's track record and experience in that role will surely give her considerable insights and credibility on various issues if and whenever she gets a chance to advance reforms from the VP's office.  Moreover, since her time in the U.S. Senate, Harris has been quite vocal about the need for criminal justice reform and has likely built many relationships with Senators on both sides of the aisle that might enable her to play an important role in building bipartisan support for various reform initiatives.

Most fundamentally, I want to believe that Senator Harris is likely to be among those most likely to be seriously committed to making progress on criminal justice reform. Someone like Susan Rice would likely be most concerned with foreign affairs in the VP role, and someone like Elizabeth Warren would likely to be most concerned with economic issues.  Harris surely will be and will need to be concerned with lots of issues if she is elected as VP, but I have an inkling that she will really want to help advance some form of federal criminal justice reform early in her tenure.

Last but not least, I can think of at least one notable former California AG who ended up having an extraordinary impact on criminal justice reform (and lots more) after being picked for an important nation position.

Some prior posts on Kamala Harris:

August 11, 2020 in Campaign 2020 and sentencing issues, Who Sentences | Permalink | Comments (0)

"Millennial Futures Are Bleak. Incarceration Is to Blame."

The title of this post is the headline of this interesting Atlantic commentary authored by Jill Filipovic. Here is how it starts:

The oldest Millennials turn 40 this year, and their prospects are not looking much brighter than when they were recession-battered 20-somethings.  Millennials, born from 1980 to 1996, are the best-educated generation in American history, and the most indebted for it.  They are the largest adult generation, at 22 percent of the U.S. population, and yet hold only 3 percent of the country’s wealth (when Boomers were young adults, they held 21 percent).  From 2009 to 2016, Millennial homeownership rates actually fell by 18 percent. A 2015 Census report found that 20 percent of Millennials live in poverty.

The list of answers to “How did Millennials get here?” is long, but one reason stands out: Millennials are the incarceration generation.  From cradle through childhood to parenthood and near middle age, Millennial lives have been shaped and stymied by policing and prisons.

In the single decade from 1980 to 1990, thanks in no small part to the War on Drugs, the number of people in U.S. prisons more than doubled.  It peaked in 2009, having exploded by 700 percent since 1972.  Although incarceration rates are now declining, they are not going down nearly as quickly as they went up.  Indeed, if the pace of decline continues, it will take close to a century for the number of people in prison to reach what it was in 1980.  Even a more modest goal, such as halving the number of current prisoners, wouldn’t be achieved until nearly all Millennials are in their graves.

No living generation has made it through the incarceration explosion unscathed. In 2009, nearly one in five prisoners was a Baby Boomer.  Millennial timing, however, was spectacularly bad.  Born as imprisonment rates were on their meteoric rise, they grew up in a country that was locking up their parents, then were locked up themselves as the number of children behind bars hit a record high, and entered adulthood in an age of still-high incarceration rates and punishments that last long after a person steps out of the cage.

August 11, 2020 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Can someone send Prez candidate Kanye West the Booker ruling making the federal sentencing guidelines advisory?

Maxresdefault (1)The question in the title of this post is part of my reaction to seeing the criminal justice items appearing on this quirky 10-point platform coming from quirky presidential candidate Kanye West.  Though I am inclined to dismiss West's candidacy as a stunt, i believe he will be appearing on some state ballots.  And so here are two of his platform points addressing criminal justice concerns:

5. Reform the legal system to provide true justice, equitable for all citizens, regardless of race or ability to defend oneself in court.  Recognize the disparity in verdicts and prison sentences, caused by the lack of financial resources or legal assistance.

There will not be differing weights and differing measures.  Proverbs 20:10

6. Reform the approach to policing in a manner that treats all Americans the same, regardless of race, color, or ethnicity.  Refocus police forces on real crime.  Eliminate federal sentencing guidelines that tie the hands of judges, resulting in ridiculous sentences for the most minor offenses.

We will speak for those who cannot speak for themselves.  Proverbs 31:8

If the reference here to "federal sentencing guidelines" was instead to "federal mandatory minimum statutes" it would be accurate to lament how they can "tie the hands of judges, resulting in ridiculous sentences for the most minor offenses."  Recall, for example, the case of Edward Young serving a 15-year mandatory minimum Armed Career Criminal Act sentence for the crime of possessing seven shotgun shells in a drawer.  But, as most readers surely know, since the 2005 Booker ruling made the federal sentencing guidelines advisory, these guidelines no longer formally "tie the hands of judges" (though they certainly still influence lots of judges at sentencing).

August 11, 2020 in Campaign 2020 and sentencing issues, Who Sentences | Permalink | Comments (2)

"Prosecutors' Vital Role in Reforming Criminal Justice"

The title of this post is the headline of this recent Governing commentary authored by Lucy Lang.  Here are excerpts:

The nation's criminal-justice system is at a pivotal moment. With rising public revulsion at the brutality inflicted on Black Americans by law enforcement, racial-justice groups have brought conversations around racial disparities and the justice system into the mainstream.

Prosecutors have played a historic role in exacerbating these racial disparities, and they have an equally vital role to play in the systemic reforms that are needed to turn an unfair system around.  To ensure that reforms are set up to succeed, it is incumbent on modern prosecutors to collect as much relevant data as they can and analyze it to measure disparities and evaluate policies that seek to create a more-just system.  To that end, prosecutors will benefit from a careful review of a recently published report from the Council on Criminal Justice (CCJ) in seeking to divert more cases successfully out of the system.

Promisingly, this national study of data from 2000 to 2016 reveals a significant reduction in racial disparities across most facets of the criminal-justice system.  The numbers show that during that period crime declined and, consistent with public demand, so did arrests.  In addition to shrinking the system's impact overall, the CCJ report reflects that front-end policies designed to reduce arrests and divert cases from criminal prosecution early in the process also reduced differences in treatment across race.

Seeking to further these front-end decreases, a new set of materials from the Institute for Innovation in Prosecution and Criminal Law Practitioner about prosecutor-led diversion details data-collection processes in different district attorneys' offices and how data can inform diversion programs for low-level crimes....

A vital area for data analysis related to the potential for diversion programs for violent crime is the role that a charged person's criminal history should play in indictment, sentencing and release decisions.  A person who has prior convictions often faces ever-increasing penalties for new crimes, subject to the exercise of prosecutorial discretion.  A first-time arrest for a felony may result, for example, in the offer of a pre-indictment misdemeanor plea by the prosecutor, while a second or third felony arrest is more likely to result in an indictment.  At the pleading stage, someone with no prior convictions facing a felony indictment is more likely to avoid incarceration compared to a person with prior convictions.

This undermines the notion that once someone has done his or her time, they have repaid whatever debt to society the crime purportedly incurred.  Given the uneven application of the system across demographic categories, such practices may contribute to racially disparate sentence recommendations from prosecutors as well as disparate denials of release by parole boards.

Criminal-justice reformers face some hard questions. Chief among these are how to appropriately respond to crimes of violence and whether racial disparities might be reduced by removing the criminal history of a person charged with a crime as a substantial factor during sentencing. It is incumbent upon prosecutors to look carefully at their data and consider diversion options at each stage of their decision-making.

August 11, 2020 in Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Monday, August 10, 2020

What should we make of a "significant decline" in white-collar criminal enforcement during the Trump Administration?

The question in the title of this post is prompted by this new Bloomberg article, headlined "Trump Oversees All-Time Low in White Collar Crime Enforcement," which I find puzzling in many ways.  Here are excerpts:

Donald Trump calls himself the “law and order” president, but when it comes to white collar crime, he has overseen a significant decline in enforcement.  The prosecution of securities fraud, antitrust violations and other such crimes has hit a record low as the pandemic slows the courts, according to one tracking service. But even before the coronavirus, the numbers were falling under the Trump administration.

The average annual number of white collar defendants was down 26% to 30% for Trump’s first three years in office from the average under President Barack Obama, according to data from the Justice Department and Syracuse University, respectively.  The trend also shows up in fines on corporations, which fell 76% from Obama’s last 20 months to Trump’s first 20 months, according to Duke University law professor Brandon Garrett. 

“Mr. Trump sets the tone,” said John Coffee, a professor at Columbia Law School whose new book, “Corporate Crime and Punishment: The Crisis of Underenforcement,” analyzes the decline.  Trump’s Justice Department has even presided over a plunge in deferred-prosecution agreements, Coffee said.  In a DPA, a company is charged with a crime but prosecutors agree to drop the case later if it admits wrongdoing, pays a penalty and makes required reforms.  The administration has also brought fewer white collar racketeering and money-laundering cases, crimes that carry harsher penalties, he said. “All that is an indication that white collar crime is not a priority,” Coffee said....

The Justice Department says it hasn’t eased up at all.  Prosecutors “continue to bring federal charges in white collar and other cases according to facts, the law and the principles of federal prosecution,” said Peter Carr, who was a spokesman for the department’s Criminal Division until moving recently to the Department of Homeland Security. The Department of Justice “can’t vouch for TRAC’s methodology,” Carr said, referring to Syracuse University’s Transactional Records Access Clearinghouse, which monitors trends in federal law enforcement and whose records reflect a decline of about 30% in prosecutions under Trump....

DOJ spokesman Matt Lloyd said the Criminal Division’s Fraud Section, which focuses on white collar crime, “has achieved record numbers of individual and corporate criminal cases and resolutions over the past three years,” including a 59% increase in individuals charged between 2016 and 2019 and a jump of more than a quarter in those convicted.  He didn’t comment specifically on the 26% decline reflected in the data published by the U.S. attorney offices nationwide, which cover a much larger set of white collar prosecutions, but called the Fraud Section’s achievements “a key indicator of the department’s commitment” to the issue.

Prosecutions have been declining for the past decade but have never been so low.  The Justice Department under Trump has shifted its focus from traditional white collar cases, like big securities prosecutions, to immigration and the sort of corporate espionage targeted by the DOJ’s China Initiative, said Robert Anello, a white collar defense lawyer in New York....

The Internal Revenue Service's ... Criminal Investigation division helps send people to prison for crimes such as tax evasion, money laundering and identity theft.  The agency saw a 36% decrease in new criminal investigations from fiscal 2015 to 2019, IRS records show.

One factor in the decline in traditional white collar prosecutions is an important change to what’s known as the Yates memo.  In 2015, under Obama, Deputy Attorney General Sally Yates required companies seeking leniency to help develop evidence against their employees and turn over possible suspects.  In 2018, under Trump, the Justice Department softened the criteria. 

So is there an on-going white-collar crime "crisis"?  How would we know?  Why is it that we now see a whole lot of media reporting increases in shootings in urban areas, but we do not see any media looking at possible increases in securities fraud in suburban areas?  I ask these questions not to be cheeky, but rather to note how much more we generally focus upon and tend to better understand "crime in the streets" rather than "crime in the suites."

August 10, 2020 in Offense Characteristics, White-collar sentencing, Who Sentences | Permalink | Comments (0)

A global look at pandemic-driving decarceration realities

Vice has this notable new piece headlined "COVID Has Reduced Prison Populations Around the World—Creating a Rare Chance to Fix the System."  The subheadline summaries its coverage: "The United States, United Kingdom, Australia and Europe have all reported significant decreases in prisoner numbers since the pandemic began.  Experts want it to stay that way." And here are excerpts:

A number of countries — including the United States, the United Kingdom and Australia — have reported major decreases in prisoner numbers as a result of pandemic-related factors such as reductions in crime, more leniency from authorities on bail applications, and tighter regulations around incarceration.  Legal experts have heralded the statistics as a cause for optimism, while at the same time warning that the numbers could rise again once societies return to some semblance of the old normal.  And many have therefore suggested that, if nothing else, the coronavirus pandemic could signal an opportunity for nations to rethink the way they operate their criminal justice systems.

These are the facts. Between March and June, more than 100,000 people were released from state and federal prisons in the United States—a decrease of 8 percent, according to a nationwide analysis by The Marshall Project and The Associated Press.  In the whole of 2019, that same prison population decreased by just 2.2 percent.

Between March and July, 4,435 people were released from prisons in England and Wales — a decrease of about five percent. Between March and June, France released some 14,000 inmates — a decrease of about 23 percent — and between February and May, Italy, one of the first countries to experience the devastation of the pandemic on a national scale, released some 7,850 inmates — a decrease of about 15 percent.

Australia, meanwhile, saw the adult prison population drop by almost 11 percent in the state of New South Wales between mid-March and mid-May, and almost 13 percent in the state of Victoria between the end of February and the end of June.  These are the two most populous states in the country, as well as the two worst-affected by COVID-19....

Taken altogether, these figures reveal that the global pandemic has, overall, led to a positive development in the way criminal justice systems operate around the world.  The disruptions caused by COVID-19 have meant less people being incarcerated and detained unnecessarily.  And experts are calling for it to stay that way.

“This is absolutely a chance for countries to rethink the way they run their justice system,” Professor Lorana Bartels, Program Leader of Criminology at the Australian National University, told Vice News via email. “It should compel renewed attention to addressing underlying factors that contribute to crime and reoffending, including insecure housing, mental health (in particular, trauma), substance abuse, education, and employment.

“Especially as economies struggle, finding equally effective but much cheaper alternatives to prison will be imperative.”...

“This is a positive development,” said Professor Bartels. “There is no clear link between imprisonment rates and crime rates, and these decreases are a reminder that an inexorable rise in our use of imprisonment is neither beneficial, nor inevitable… there are better (and cheaper) ways of approaching criminal justice issues.”

August 10, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Sentencing around the world | Permalink | Comments (0)

Sunday, August 9, 2020

"Supervised Release Is Not Parole"

The title of this post is the title of this notable new paper authored by Jacob Schuman just posted to SSRN. Here is its abstract:

The United States has the largest prison population in the developed world.  Yet outside prisons, there are almost twice as many people serving terms of criminal supervision in the community — probation, parole, and supervised release.  At the federal level, this “mass supervision” of convicted offenders began with the Sentencing Reform Act of 1984, which abolished parole and created a harsher and more expansive system called supervised release.  Last term in United States v. Haymond, the Supreme Court took a small step against mass supervision by striking down one provision of the supervised release statute as violating the right to a jury trial.  But the Justices did not consider all the differences between parole and supervised release, which have far broader consequences for the constitutional law of community supervision.

The current consensus among the courts of appeals is that supervised release is “constitutionally indistinguishable” from parole and therefore governed by the same minimal standard of due process.  Closer inspection, however, reveals three significant differences between parole and supervised release.  First, parole was a relief from punishment, while supervised release is an additional penalty. Second, parole revocation was rehabilitative, while supervised release revocation is punitive.  Finally, parole was run by an agency, while supervised release is controlled by courts.  Because of these differences, revocation of supervised release should be governed by a higher standard of due process than revocation of parole.  In particular, defendants on supervised release deserve more protection against delayed revocation hearings, which may deny them the opportunity to seek concurrent sentencing.

August 9, 2020 in Procedure and Proof at Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (2)

Oregon drug decriminalization initiative would produce "significant reductions in racial/ethnic disparities" according to state commission

Download (12)As reported in this local press piece, headlined "Oregon Criminal Justice Commission: Initiative Petition 44 Will Nearly Eliminate Racial Disparities for Drug Arrests, Convictions," a notable state commission has reported that a notable state ballot initiative will have a notable impact on equity in the criminal justice system. Here are the basics from the press piece:

Racial disparities in drug arrests will drop by 95% if Oregon voters pass a drug treatment and decriminalization measure in November.  That’s according to a new, independent government research report written by the Oregon Criminal Justice Commission.  Oregon voters will see a summary of the report in the voter pamphlet that the Oregon Secretary of State mails to every registered Oregon voter in November.

In addition to a reduction in arrest disparities, conviction disparities would be “narrowed substantially” if Initiative Petition 44 passes, the report said, and overall convictions would fall.  For example, convictions of Black and Indigenous Oregonians would drop by 94%....

The analysis by the Oregon Criminal Justice Commission is the first one ever prepared for a ballot measure.  Lawmakers have had the ability to ask for such an analysis since 2014 and did this year after being urged to do so by the More Treatment campaign, which supports Initiative Petition 44....

Initiative Petition 44, which will soon get a ballot measure number, changes Oregon’s approach to drugs.  The initiative would expand access around the state to drug addiction treatment and recovery services, paid for with a portion of taxes from legal marijuana sales. In addition, the measure decriminalizes low-level drug possession.  It does not legalize drugs.

About 8,900 Oregonians are arrested every year in cases where simple drug possession is the most serious offense, according to the latest numbers from the Oregon Criminal Justice Commission.  That’s the equivalent of about one arrest an hour.  Black and Indigenous Oregonians are disproportionately targeted....

In addition to decriminalizing drug possession, Initiative Petition 44 would specifically provide funding for treatment, peer support, housing, and harm reduction. Marijuana tax revenue that’s in excess of $45 million a year would help pay for it.  Oregon expects to collect roughly $284.2 million in marijuana tax revenue during the 2021-2023 biennium, or roughly $140 million a year.

Initiative Petition 44 has received more than 70 endorsements from organizations across the state, including the Coalition of Communities of Color, NAACP Portland, Eugene-Springfield NAACP, Unite Oregon, Central City Concern, the Confederated Tribes of Grand Ronde and more.  The MoreTreatment campaign to pass Initiative Petition 44 does not face any organized opposition.

The full seven-page analysis by the Oregon Criminal Sentencing Commission is available at this link, and here is part of the conclusion:

Overall, if IP 44 were to pass, the Oregon Criminal Justice Commission estimates that approximately 1,800 fewer Oregonians per year would be convicted of felony PCS [possession of controlled substances]  and nearly 1,900 fewer Oregonians per year would be convicted of misdemeanor PCS.  Prior research suggests this drop in convictions will result in fewer collateral consequences stemming from criminal justice system involvement (Ewald and Uggen, 2012), which include the reduced ability to find employment, reduced access to housing, restrictions on the receipt of student loans, inability to obtain professional licensure, and others.

The CJC estimates that IP 44 will likely lead to significant reductions in racial/ethnic disparities in both convictions and arrests....

Similarly, it is estimated that disparities in arrests for PCS would fall as well. If arrests follow the same trends as were estimated for convictions, then the overall number of PCS arrests would fall from just over 6,700 to 615. In this case, the significant overrepresentation of Black Oregonians as measured by the RDR among those arrested for PCS would fall substantially, being reduced by nearly 95 percent. In addition, Native American Oregonians would go from being overrepresented, to underrepresented compared to white individuals.

August 9, 2020 in Data on sentencing, Drug Offense Sentencing, Offender Characteristics, Race, Class, and Gender | Permalink | Comments (0)

Saturday, August 8, 2020

Making sure not to look past or become numb to persistently ugly pandemic realities in incarceration nations

It has now been a couple of weeks since I did a round-up of prison-COVID press pieces. To their credit, the press and commentators keeping reporting and discussing the discouraging tales that keep emerging from our prisons and jails.  But I cannot help but find, as we enter the sixth month of this pandemic, that it has become disconcertingly easier to become numb to these persistently depressing stories.  Eager not to look past these still critical realities, here is a round-up of just a few headlines and pieces catching my eye recently:

From CBS News, "More than 500 inmates at Arizona prison test positive for COVID-19, according to corrections officials"

From the Chicago Tribune, "2 dead at Marion federal prison during COVID-19 surge despite restrictive conditions, say inmates and family members"

From the Cincinnati Enquirer, "COVID cases climb in Ohio prisons, worrying families and those employed to serve prisoners"

From CNN, "Inside the federal prison where three out of every four inmates have tested positive for coronavirus"

From Forbes, "As Bureau of Prisons Enters “Phase 9” Of COVID-19 Plan, BOP Staff Wonder If There Is A Real Plan"

From News Junkie, "Prisons and Parties Drive Connecticut’s Coronavirus Case Numbers"

From the Orlando Sentinel, "Many who have died of COVID-19 in Florida’s prisons were eligible for parole"

From the Washington Post, "The Federal Bureau of Prisons response to the coronavirus has been disastrous and deadly"

August 8, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

"Beyond Unreasonable"

The title of this post is the title of this notable new paper authored by John Inazu and now posted to SSRN. Here is its abstract:

The concept of “reasonableness” permeates the law: the “reasonable person” determines the outcome of torts and contracts disputes, the criminal burden of proof requires factfinders to conclude “beyond a reasonable doubt;” claims of self-defense succeed or fail on reasonableness determinations.  But as any first-year law student can attest, the line between reasonable and unreasonable isn’t always clear.  Nor is that the only ambiguity. In the realm of the unreasonable, many of us intuit that some actions are not only unreasonable but beyond the pale — we might say they are beyond unreasonable.  Playing football, summiting Nanga Parbat, and attempting Russian roulette all risk serious injury or death, but most people do not view them the same.  These distinctions raise vexing questions: what is it that makes us feel differently about these activities?  Mere unfamiliarity?  Moral condemnation?  Relative utility?  Or something else altogether?  Moreover, who exactly is the “we” forming these judgments?

This Article explores the vague lines that separate our sense of reasonable, unreasonable, and beyond unreasonable — the reasonableness lines.  Part I examines the general characteristics of these lines.  Part II explores their significance in law, and Part III considers their application in four discrete areas of law: tax policy for medical expenses, criminal punishment, speech restrictions, and tort liability for inherently dangerous sports.  The Article ends by summarizing the implications of the reasonableness lines for our culture and for ourselves.

August 8, 2020 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Friday, August 7, 2020

Notable Prison Policy Initiative update on pandemic changes to prison and jail populations

Prison Policy Initiative published yesterday this great updated analysis (with lots of helpful charts and data visuals) of jail and prison populations changes amid the pandemic.  The full title of this publication captures the essence of the analysis: "Jails and prisons have reduced their populations in the face of the pandemic, but not enough to save lives:  Our updated analysis finds that the initial efforts to reduce jail populations have slowed, while the small drops in state prison populations are still too little to save lives."  Here are some of the data highlights:

At a time when more new cases of the coronavirus are being reported each day, state and local governments should be redoubling their efforts to reduce the number of people in prisons and jails, where social distancing is impossible and the cycle of people in and out of the facility is constant.  But our most recent analysis of data from hundreds of counties across the country shows that efforts to reduce jail populations have actually slowed — and even reversed in some places.

Even as the pandemic has spiked in many parts of the country, 71% of the 668 jails we’ve been tracking saw population increases from May 1st to July 22nd, and 84 jails had more people incarcerated on July 22nd than they did in March.  This trend is particularly alarming since we know it’s possible to further reduce these populations: in our previous analysis, we found that local governments initially took swift action to minimize jail populations, resulting in a median drop of more than 30% between March and May.

Meanwhile, state prisons — where social distancing is just as impossible as in jails, and correctional staff still come and go every day — have been much slower to release incarcerated people.  Since January, the typical prison system had reduced its population by only 5% in May and about 13% as of July 27th....

Some states’ prison population cuts are even less significant than they initially appear, because the states achieved those cuts partially by refusing to admit people from county jails.  (At least two states, California and Oklahoma, did this.)
While refusing to admit people from jails does reduce prison density, it means that the people who would normally be admitted are still incarcerated, but in different correctional facilities that have more population turnover and therefore more chances for the virus to spread.

Other states are indeed transferring people in prison to outside the system, either to parole or to home confinement, but these releases are not enough to protect vulnerable incarcerated populations from COVID-19.  For example, in California, thousands of people have been released weeks and months early, but the state’s prison population has only decreased by about 11% since January, leaving too many people behind bars in the face of a deadly disease.

Of the states with available data, the smaller systems have reduced their populations the most drastically. North Dakota’s prison population had already dropped by 19% in May. (North Dakota was also the state that we found to have the most comprehensive and realistic COVID-19 mitigation plan in our April 2020 survey.) Two months later, North Dakota has continued these efforts, reducing its prison population by a total of 25% since January, a greater percent change than any other state.

August 7, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Effective review of messiness of federal compassionate releases amidst COVID

BuzzFeed News has this great lengthy new piece on the messy realities of federal compassionate release realities during the pandemic. The full headline of the piece, which I recommend in full, provides a summary: "'I Had Hit The Lottery': Inmates Desperate To Get Out Of Prisons Hit Hard By The Coronavirus Are Racing To Court: With little legal precedent for a global pandemic, judges are deciding on a case-by-case basis how to weigh the risks of COVID-19 in prisons."  Here is an excerpt:

A BuzzFeed News review of more than 50 cases filed in the federal district court in DC showed that with little precedent for a flood of release requests during a pandemic, decisions about who gets out of prison and who does not can appear arbitrary. Prisoner advocates and defense lawyers say these cases can come down to the luck of the draw, with some judges proving to be more sympathetic than others.

Judges are making medical assessments about how much of a threat COVID-19 poses to an individual inmate and then deciding how to balance that against the public safety risk of sending that person back into the community; inmates are usually released to home confinement or under the supervision of a probation officer. And judges are reaching different conclusions about how to measure an inmate’s risk of exposure in state and federal prisons, which have seen some of the worst clusters of COVID-19 cases nationwide.

Boykin is one of more than 800 inmates who have been granted compassionate release by a federal judge since March, according to data from the Federal Bureau of Prisons. Another 7,000 federal inmates have been released by the BOP to home confinement in the same period, after Attorney General Bill Barr directed the bureau to prioritize using its own release power for eligible inmates to minimize the spread of COVID-19. More than 150,000 federal inmates remain incarcerated.

Thousands of inmates are still exploring options to get out. Families Against Mandatory Minimums, just one of the groups that connect inmates with pro bono legal assistance, has fielded more than 3,000 requests for help since the start of the pandemic. They’ve been able to match approximately 1,200 inmates and family members with lawyers.

“We were hoping ... that judges would not want to be a party to this ongoing, slow massacre in the prisons. And they’re not, and that’s good,” said FAMM President Kevin Ring. However, he said, when it comes to how judges are analyzing release requests, “it’s not consistent across jurisdictions — there are some judges who have been stricter and some who have been more lenient.”

August 7, 2020 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, August 6, 2020

"Labeling Violence"

The title of this post is the title of this notable new paper authored by Cecelia Klingele now available via SSRN. Here is its abstract:

In recent years, federal and state-level criminal justice reforms have softened the punitive responses to crime that defined the quarter-century from 1980–2005.  The main beneficiaries of these reforms have been non-violent criminals, who are increasingly eligible for pre- and post-charge diversion, expungement, early release from custody and early discharge from community supervision.  For those convicted of violent offenses, not much has changed: sentences remain long; opportunities for release remain few; and conditions of post-release supervision are tightly enforced, leading to high rates of return to prison.

The justification for a harsh response to violent crime is that such crime inflicts significant harm and represents a dramatic deviation from standards of acceptable behavior. In fact, “violent” behavior — that is, behavior that is intended to cause, or does in fact cause, physical injury to another person — is hardly anomalous.  Across the life-course, and particularly in youth and young adulthood, such behaviors frequently occur among a broad spectrum of the population and rarely lead to criminal conviction. This Article explores why only some behavior is labeled violent, and what implications this fact has for sentencing and correctional management of people convicted of violent crimes, and for the broader management of the criminal justice system.

August 6, 2020 in Offense Characteristics, Recommended reading | Permalink | Comments (0)

Ugly summer stories of southern justice in the form of extreme over-sentencing

The dog days of summer seems especially doggy this year, and here are a couple of notably ugly summer sentencing stories are part of this reality:

From CNN, "Louisiana Supreme Court upholds Black man's life sentence for stealing hedge clippers more than 20 years ago."  An excerpt:

A Black Louisiana man will spend the rest of his life in prison for stealing hedge clippers, after the Louisiana Supreme Court denied his request to have his sentence overturned last week.

Fair Wayne Bryant, 62, was convicted in 1997 on one count of attempted simple burglary. In his appeal to the Second Circuit Court of Louisiana in 2018, his attorney, Peggy Sullivan, wrote that Bryant "contends that his life sentence is unconstitutionally harsh and excessive."  
 
Last week, though, the state Supreme Court disagreed -- with five justices choosing to uphold the life sentence. The lone dissenter in the decision was Supreme Court Chief Justice Bernette Johnson, who wrote that "the sentence imposed is excessive and disproportionate to the offense the defendant committed."

From Fox News, "Disabled Iraq veteran faces five years in Alabama prison for legally prescribed medical marijuana." An excerpt:

By all accounts, Sean Worsley is a war hero. He earned a Purple Heart, along with a laundry list of additional military accolades, for clearing roadside bombs in Iraq. He also earned a lifetime of post-service ailments, including post-traumatic stress disorder (PTSD) and a traumatic brain injury (TBI). As a result of his injuries, Worsley was given a 100 percent disability rating from the Department of Veteran’s Affairs. He treated the worst symptoms of both injuries with medical marijuana prescribed to him legally in Arizona.

Now, Worsley sits in an Alabama jail facing five years in the state’s notoriously violent prison system after admitting to an officer he was in possession of medical marijuana while driving through Alabama and a subsequent probation violation for missing a court date.

UPDATE: I now realize that the headline of this local version of the Fox story more clearly summarizes the ugly sentencing reality: "Black disabled veteran sentenced to spend 60 months in prison for medical marijuana."

August 6, 2020 in Examples of "over-punishment", Offender Characteristics, Offense Characteristics | Permalink | Comments (1)

"Man is Opposed to Fair Play': An Empirical Analysis of How the Fifth Circuit Has Failed to Take Seriously Atkins v. Virginia"

The title of this post is the title of this notable new article now on SSRN authored by Michael L. Perlin, Talia Roitberg Harmon and Sarah Wetzel.  Here is its abstract:

In 2002, for the first time, in Atkins v. Virginia, 536 U.S. 304 (2002), the United States Supreme Court found that it violated the Eighth Amendment to subject persons with intellectual disabilities to the death penalty.  Since that time, it has returned to this question multiple times, clarifying that inquiries into a defendant’s intellectual disability (for purposes of determining whether he is potentially subject to the death penalty) cannot be limited to a bare numerical “reading” of an IQ score, and that state rules based on superseded medical standards created an unacceptable risk that a person with intellectual disabilities could be executed in violation of the Eighth Amendment.

Atkins provides a blueprint, but the question remains as to whether it will, in the long run, be more than a “paper victory.”  Until these issues are carefully considered, the true legacy of Atkins and its progeny will not be at all clear, and it will similarly not be clear if the case’s revolutionary potential will be fulfilled.  In this paper, we seek to answer this question: to what extent has the Fifth Circuit given meaningful life to Atkins and its progeny?  Our research reveals that, in the universe of 70 “Atkins cases” (that is, cases in the Fifth Circuit in which colorable Atkins-based arguments had been raised by defendants on habeas corpus applications), in only nine cases (12%) was any actual and meaningful relief granted to defendants (their sentences being commuted to life in prison, with one of those defendants having a parole hearing scheduled).  In 40 of the 70 cases (57%), the Circuit affirmed a decision below, in most cases, denying applications for writs of habeas corpus. Eight cases (11%) are still pending, that is, there was a remand from the Fifth Circuit or a grant of a certificate of appealability, and further proceedings are currently taking place or being scheduled.  In 13 cases (18.5%), although preliminary relief had been granted, defendants were ultimately unsuccessful; as of the writing of this paper, ten have been executed, one defendant’s execution has been stayed because of Covid-related reasons, one died in prison and one remains on death row. In short, if every one of the defendants in pending cases is successful (an outcome that, based on the Fifth Circuit’s global track record, is certainly not likely), that will mean that Atkins’ claims were successful in just 24% of all cases.

Our findings also revealed important patterns of why certain defendants were successful, and the majority were unsuccessful. It was more likely that at least preliminary relief was granted in those cases in which defendants were able to rebut allegations that they were “malingering,” in which effort to raise the so-called “Flynn effect” were prevalent, and in which the WAIS IQ test was relied upon; if all three were present, that seemed to heighten the likelihood of success.  On the other hand, the findings also revealed that it was less likely that a defendant would be successful if the WISC IQ test were used, if there was no rebuttal for malingering claims or if the subsequently-discredited testimony of one forensic psychologist was used by the state.

Our roadmap is this: First, we discuss the Atkins case and the significance of how post-Atkins cases modified and reinforced some of Atkins’ most salient points.  Following this, we will examine the universe of Fifth Circuit cases applying (often, misapplying) Atkins, explaining our methodology and revealing our findings.  We then consider this entire area of law and policy through the lens and filter of therapeutic jurisprudence, and then subsequently apply that doctrine’s principles to the database of the cases in question.  We conclude by offering some modest suggestions focusing on how we can finally, some 17 years after one of us used this phrase in a title of another law review article about Atkins, “giv[e] life” to this case.

August 6, 2020 in Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Reviewing how California got under 100,000 prisoners, a huge cut from modern high and the lowest since the 1980s (but still above designed capacity)

This lengthy San Francisco Chronicle piece, headlined "How California reduced its inmate population to a 30-year low," reports on the remarkable modern decline in the prison population in the state of California. Here are some highlights:

California’s prison population of 99,000 is its lowest since 1990 and 74,000 below its peak in 2006. Court rulings, new state laws and policies on imprisonment, and changes in voters’ attitudes have all contributed to the reduction, which has not led to any statewide increase in crime.  But the events look somewhat different through a broader historical lens. In 1976, the state’s prison population was 20,000, and the crime rate was only slightly higher than it is today.

What followed were decades of lockup laws, ballot measures — notably the “three strikes” initiative of 1994 — and policies by a series of governors, starting with Jerry Brown, whose more recent actions were crucial to the state’s turnaround. The surge in incarceration drove California to open 22 new prisons between 1984 and 2013, bringing the total to 35.  Gov. Gavin Newsom has announced plans to close two prisons in the next three years.

“California was at the forefront of both the prison building boom and tough-on-crime sentencing,” said Michael Romano, who teaches law at Stanford, directs the law school’s Three Strikes Project, and has been appointed by Newsom to head a committee examining possible further rollbacks in the state’s sentencing laws.  “To this day, people are serving life sentences for shoplifting batteries, stealing a kid’s bike, possession of drugs.”

When Brown first took office in 1975, prison sentences in California were largely controlled by the parole board — a felony was punishable by 1 to 5 years in prison, 5 to 10, or 7 to life, for example — and the board decided when an inmate was suitable for release, based on the inmate’s record and prison conduct.  The system, in effect since 1917, had become unpopular on both sides of the aisle.  Conservatives said inmates convicted of serious crimes were released too early, while many liberals said the parole board was biased against minorities and the poor.

In 1976, with bipartisan support, Brown signed a “determinate sentencing” law that established a range of fixed terms for nearly all crimes — two, four or six years, for example — and let the judge choose the sentence. The inmate could get time off for good behavior in prison, but, except for some convicted murderers and a few other categories, would never see a parole board.

While the new system made sentences more uniform, it also invited lawmakers, and voters, to increase punishment. A steady stream of laws over the next three decades made imprisonment mandatory for many crimes and added years to sentences for a defendant’s past convictions, gang affiliation, drug dealing and gun use, expanding five-year terms to 20 or 25 years in some cases. Initiatives bearing titles such as the Victims’ Bill of Rights (1982) and the Crime Victims’ Justice Reform Act (1990) limited defendants’ rights to challenge prosecutions and police conduct.  And in 1994, after 12-year-old Polly Klaas was kidnapped from her Petaluma home and murdered by a man with a felony record, state lawmakers and voters passed the nation’s first three strikes law. For defendants with two previous convictions for serious or violent felonies, the law required a sentence of 25 years to life for a new felony conviction, which could include shoplifting in some cases. If the defendant had one prior serious or violent felony conviction, the sentence for a new felony would be doubled.

The sentencing overhaul “was well-meaning and there was some rationale in trying to create equity among sentences and avoid disparities, particularly racial disparities,” said Stanford’s Romano, whose panel is scheduled to make its proposals to Newsom in January. “But it created this one-way ratchet of longer and longer sentences.”  Unsurprisingly, California’s prison population soared, exceeding 100,000 in 1990 and topping out at 173,000 in 2006....

The pushback began in the early 1990s, when prisoners filed class-action suits over prison health care and treatment of disabled and mentally ill inmates. Federal judges initially ordered improvements in the care systems, but saw little progress in prisons with too many inmates and too few resources.

In 2005, a federal judge in San Francisco ordered the state to transfer prison health care management to a court-appointed receiver, saying shoddy care was killing more than one inmate per day.  Although the state had reduced its prison population after Gov. Arnold Schwarzenegger declared an emergency, in 2009 a three-judge panel, citing ongoing health care deficiencies, ordered California to lower imprisonment by an additional 40,000, to 137.5% of designed capacity — an order upheld by the U.S. Supreme Court in 2011.

Brown, after being elected to his third term as governor in 2010, responded to the court order with a legislatively approved plan to sentence thousands of lower-level felons to county jails instead of state prisons, an approach titled “realignment” that lowered the prison population without reducing sentences.  But the governor also supported some rollbacks in sentencing laws, and three measures have won approval from voters:

  • Proposition 36 of 2012, which narrowed the three strikes law by imposing a 25-to-life sentence only if the third felony was serious or violent.
  • Prop. 47 of 2014, which reduced nonviolent, small-scale property thefts and drug crimes from felonies to misdemeanors.
  • Prop. 57 of 2016, a Brown-sponsored measure that allowed the parole board to consider releasing inmates who were convicted of nonviolent felonies and have completed their sentences for those crimes, before serving additional years for past convictions and other increases tacked on by post-1976 sentencing laws.

Those measures showed that “the people were way ahead of the politicians in focusing on rehabilitation and in ending mass incarceration,” said Donald Specter, executive director of the nonprofit Prison Law Office, which represents inmates in the health care case.

That assessment will be tested in November when voters will consider Prop. 20, an initiative sponsored by prosecutors and police groups that would repeal many of the sentencing changes in Prop. 47.

The final factor in the recent reduction in imprisonment was the coronavirus pandemic. With infections soaring in still-crowded penal institutions and heightened by a bungled transfer of infected prisoners to San Quentin, Newsom has temporarily halted transfer of newly sentenced inmates from county jail to state prison and ordered early releases that have reduced inmate totals statewide by 8,000.

Despite the changes, California prisons are still more than 16% above their designed capacity of 89,663, according to state officials. Further reductions would require further changes in sentencing and treatment of certain categories of inmates — for example, the mentally ill. “Are we ready to say that people with serious mental illness and health problems should be cared for in society?” asked Michael Bien, a lawyer for mentally ill inmates who initially sued the state over their treatment in 1990.

August 6, 2020 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Wednesday, August 5, 2020

Iowa Gov, via executive order, restores voting rights to thousands with felony convictions

As reported in this lengthy local article, headlined "Gov. Kim Reynolds signs executive order restoring felon voting rights, removing Iowa's last-in-the-nation status," fans of democracy has some good news to celebrate today out of the great state of Iowa.  Here are the details:

Thousands of Iowans with felony convictions who have served their sentences can now participate in November's presidential election after Gov. Kim Reynolds signed an executive order Wednesday restoring their voting rights.

Reynolds, a Republican, signed the executive order Wednesday morning in her office at the Iowa Capitol, flanked by a group of local leaders and legislators.  "Quite simply, when someone serves their sentence and pays the price our justice system has set for their crimes, they should have their right to vote restored, automatically, plain and simple," she said.

Iowa was the last state in the nation that still banned all people with felony convictions from voting — even after the completion of their sentences — unless they applied individually to the governor's office to have their rights restored.

Reynolds has spent the past two years advocating for the Iowa Legislature to pass a constitutional amendment that would restore voting rights but had resisted calls to sign an executive order, saying she believes a constitutional amendment is the best solution because it can't be changed by a future governor.  This summer, after Republicans in the Iowa Senate did not pass the amendment and after George Floyd's death prompted increased advocacy on racial justice issues, she announced she would sign the order.

Iowa's felon voting ban was estimated to affect tens of thousands of people.  The Iowa Department of Corrections has discharged an average of 5,000 people with felony convictions annually in recent years, according to Sam Langholz, the governor's legal counsel.  A 2016 report from The Sentencing Project found that the ban affected nearly one in 10 African-American adults....

Reynolds' order states that felons must have discharged their sentence, including any parole and probation, before their voting rights will be restored.  Anyone still serving a prison sentence for a felony conviction will not be able to vote.

The order does not automatically grant voting rights to people convicted of felonies outlined in Iowa Code chapter 707, which includes murder and manslaughter.  People convicted of serious sexual abuse crimes will need to complete any special sentences before their voting rights are restored.  Those special sentences last either 10 years or for life, depending on the crime, meaning people convicted of the most serious sexual crimes will never automatically regain their voting rights. Those whose voting rights are not automatically restored under the order can still petition the governor individually to have them restored.

The executive order does not require people with felony convictions to fully pay back any restitution payments owed to their victims before regaining their rights, as was included in a bill introduced by Republicans in the Iowa Senate earlier this year. But the order does not relieve them from making their payments.  Nearly one in four Iowa felony convictions in the last two years came with a judgment ordering restitution to be paid to victims.  The average tab for those nearly 4,000 convictions is $11,607....

Matthew Bruce, an organizer with Des Moines Black Lives Matter, said he didn't agree with how the executive order prevents automatic restoration for people on probation or parole.  But he said he was encouraged to see that the order doesn't require payment of restitution.  "I was very glad about the restitution piece, and I thought that was the biggest victory out of all of this," he said.

In her remarks, Reynolds again emphasized her commitment to eventually restoring voting rights through a constitutional amendment. “Let me be clear, an executive order is at best a temporary solution,” she said.  “It can be changed with the stroke of a pen by the next governor, which is not good enough.  Something that is fundamentally right should not be based on the benevolence of a single elected official.”

August 5, 2020 in Collateral consequences, Who Sentences | Permalink | Comments (1)

By 5–4 vote, Supreme Court stays Orange County jail to implement certain COVID safety measures

This evening the Supreme Court, voting 5-4 along the "usual" lines, issued a stay to block an order requiring a local jail in California to implement certain safety measures to provide greater COVID protection to inmates.  The majority's order is just a paragraph and includes no reasoning, but Justice Sotomayor's eight-page dissent has a lot to say.  Here is how it starts and ends:

Today, this Court steps in to stay a preliminary injunction requiring Sheriff Don Barnes and Orange County (collectively, the Orange County Jail, or Jail) to implement certain safety measures to protect their inmates during the unprecedented COVID–19 pandemic.  The injunction’s requirements are not remarkable.  In fact, the Jail initially claimed that it had already implemented each and every one of them.  Yet, apparently disregarding the District Court’s detailed factual findings, its application of established law, and the fact that the Court of Appeals for the Ninth Circuit has twice denied a stay pending its review of the District Court’s order, this Court again intervenes to grant a stay before the Circuit below has heard and decided the case on the merits....  The Jail’s application does not warrant such extraordinary intervention.  Indeed, this Court stays the District Court’s preliminary injunction even though the Jail recently reported 15 new cases of COVID– 19 in a single week (even with the injunction in place), even though the Jail misrepresented under oath to the District Court the measures it was taking to combat the virus’ spread, and even though the Jail’s central rationale for a stay (that the injunction goes beyond federal guidelines) ignores the lower courts’ conclusion that the Jail’s measures fell “well short” of the Centers for Disease Control and Prevention (CDC) Guidelines...

At the time of the injunction, there were nearly 3,000 inmates still in the Jail’s care, 488 of whom were medically vulnerable to COVID–19.  “[H]aving stripped them of virtually every means of self-protection and foreclosed their access to outside aid, the government and its officials” must “‘take reasonable measures to guarantee the[ir] safety.’”  Farmer, 511 U.S., at 832–833; see also Valentine v. Collier, 590 U.S. ___, ___–___ (2020) (statement of SOTOMAYOR, J.) (slip op., at 6–7) (“It has long been said that a society’s worth can be judged by taking stock of its prisons. That is all the truer in this pandemic, where inmates everywhere have been rendered vulnerable and often powerless to protect themselves from harm”).  The District Court found that, despite knowing the severe threat posed by COVID–19 and contrary to its own apparent policies, the Jail exposed its inmates to significant risks from a highly contagious and potentially deadly disease.  Yet this Court now intervenes, leaving to its own devices a jail that has misrepresented its actions to the District Court and failed to safeguard the health of the inmates in its care.  I respectfully dissent.

August 5, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

ACLU launches "The Redemption Campaign - Embracing Clemency" seeking release of 50,000 from state prisons via clemency

This new press release reports on a notable new national clemency initiative.  Here are the highlights and links:

The American Civil Liberties Union today launched The Redemption Campaign -- Embracing Clemency, a first of its kind nationwide effort to release 50,000 people from state prisons over the next five years by executing state-level campaigns that push governors to use their existing clemency powers in new and transformational ways.  The campaign will work with governors to confront mass incarceration and racial injustice by granting commutations to large groups of people who are unjustifiably imprisoned.

A poll released by the ACLU today finds widespread support for governors to use their clemency authority to correct past injustices.  Eighty percent of voters support ending or shortening the prison sentences of certain people in prison. This includes 80 percent of Democrats, 73 percent of Republicans, and 81 percent of independents. Among those who have personally been a victim of a crime, 82 percent support clemency.

The ACLU’s efforts will initially focus on urging governors to release: 

  • People who, if convicted under current laws, would serve a lesser sentence than what they are currently serving;
  • People convicted of drug distribution and possession offenses, regardless of underlying substance;
  • People incarcerated for technical probation or parole violations; and
  • Older incarcerated people.

In the coming months, the ACLU will launch state-level campaigns to ensure governors use their clemency powers to release people in their states.  This will include direct candidate engagement and voter education in upcoming gubernatorial races as well as mobilization of constituents in states across the nation....

The ACLU will kick off the campaign with a live town hall event featuring leading activists who have received clemency, Cyntoia Brown Long and Jason Hernandez.  The town hall will begin at 7:00 p.m. ET on August 5, 2020 and will discuss the need for our leaders to recognize the power of clemency in correcting the harms caused by the decades long war on drugs and tough-on-crime era.

Racial disparities in prison populations are rampant.  Black and Latinx people make up 57 percent of the state prison populations despite comprising just 29 percent of the overall population, and those disparities exist across various convictions and sentences.  Nearly 50 percent of people serving life sentences, and nearly 60 percent of people serving life without parole, are Black.

Freeing 50,000 people is readily achievable.  Of the 1.3 million people in state prisons, nearly 165,000 people are over the age of 55, and the number of older incarcerated people continues to grow.  Further, there are 280,000 people imprisoned for supervision violations as probation and parole have failed to divert people out of the system and have instead become primary drivers of the mass incarceration crisis.  It is clear from any metric that far too many people are being harmed by the brutal excesses of the criminal legal system — serving sentences that serve no purpose other than to punish and degrade.

The ACLU/BPI poll is here 

A blog post by Jason Hernandez, detailing his experience with clemency, is here

The Corrective Compassion trailer video is here

A blog by former prosecutor Preston Shipp on clemency is here

August 5, 2020 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"#MeToo and the Myth of the Juvenile Sex Offender"

The title of this post is the title of this notable new paper authored by Cynthia Godsoe recently posted to SSRN. Here is its abstract:

The #MeToo movement has brought much needed attention to the widespread and systemic nature of sexual harm. However, the broad, uncritical push to connect “#MeToo” to criminal prosecution has real downsides, revealing the pathologies and ineffectiveness of the criminal system and re-inscribing the very gendered and racialized hierarchies the movement seeks to eradicate.  The mainstream understanding of #MeToo amplifies the omission of sexual harm from most conversations on decarceration and criminal legal reform.  This side of the movement focuses almost exclusively on individual blame and punishment, ignoring the structural causes of gender violence, as well as meaningful survivor healing and offender accountability.  This is true both as to the scope of criminalization, which is ever-expanding particularly as to sexual harms, and to the response once harm occurs, which is almost always to advocate for longer prison sentences and more restrictions post-release, such as sex offender registration.

This Symposium essay explores these issues by thinking through the way that the mainstream #MeToo movement treats and responds to youth who either engage in or are victims of sexual harm.  Despite the fact that much of the #MeToo reckoning has focused on high-profile men who repeatedly exploit minors — think Jeffrey Epstein, R. Kelly, Kevin Spacey — minors themselves, some as young as eight, constitute one third of those adjudicated sex offenders and one quarter of those required to register, sometimes for life.  At the same time, harm to young people who do not fit a mainstream mold is ignored.  Thus, although girls of color are sexually assaulted at much higher rates than white girls, their victimhood continues to be overlooked and their responses to it even criminalized.

In this essay, I join abolitionist advocates in urging caution about the direction the #MeToo movement is taking, particularly with regard to young people.  Our punishment of sexual harm with respect to youth reveals three significant pathologies of the broader criminal legal system.  First, we rely almost exclusively on criminalization and punishment to address societal problems that have multiple causes beyond individual culpability.  Second, the system is immensely costly, in fiscal and, most importantly, human terms, with very low effectiveness, both at preventing and at redressing harm.  Indeed, punishing youth for sex offenses puts them at much greater risk for being sexually abused themselves by adults — undermining the primary stated goal of the sex offense criminal framework.  Third, the criminal treatment of “sex crimes” reinforces the very gendered and racialized hierarchies that animate them.  Girls and women of color continue to be undervalued and unprotected, while male survivors continue to be stigmatized and disbelieved.  Indeed, Tarana Burke, founded the #MeToo movement to recognize non-normative victims, particularly girls and women of color, and recently lamented the current movement’s public face: “We have to shift the narrative that it’s a gender war, that it’s anti-male, that it’s men against women, that it’s only for a certain type of person — that it’s for white, cisgender, heterosexual, famous women.”

I conclude with the counterintuitive suggestion that decriminalization and decarceration efforts should not only include conduct labelled as “sex offenses,” but likely should begin with them. Transforming our approach to sexual harm is one key piece of an abolitionist vision that seeks to move beyond carceral approaches to achieving racial and gender justice.

August 5, 2020 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (0)