Sentencing Law and Policy

Noting encouraging new federal compassionate release realities

I am pleased to see this CBS News new article headlined "Compassionate release, once seldom used, offers some federal inmates hope."  Here are excerpts:

[C]ompassionate release [was] a once seldom used remedy that allows inmates to receive a reduction in their sentence. The process, which is only used in extraordinary circumstances, has seen an uptick during the coronavirus pandemic....

Petitions for compassionate release were rarely approved prior to the passing of the First Step Act in December 2018, which created a procedural change, making it easier for offenders and their families to bring their request to the court.

There were 145 offenders released in 2019 — about five times more than the year before, when 24 people were granted release, according to a report by the U.S. Sentencing Commission.  On average, the sentences were reduced by 84 months last year, compared to 68 months the year before.  Two-thirds of those who successfully obtained release did so by filing requests through the court, rather than going through the Bureau of Prisons, the report found.

The bureau, in a statement, said it has no direct authority to reduce an inmate's sentence, but rather, a director determines if an inmate is eligible and submits a request to the prosecuting U.S. Attorney's Office to file a motion on behalf of the director.  "Inmates who are found to be ineligible under agency criteria, or who are determined to be inappropriate for agency approval of a reduction in (a) sentence may file a motion themselves directly to the sentencing court per the First Step Act," the statement said.

So far, nearly 1,600 cases have been approved, the bureau said, meaning that in the year of the pandemic, the numbers of those being released have increased tenfold since the year before.

The virus has killed 120 federal inmates, the bureau said.  Saferia Johnson, a 36-year-old with pre-existing health conditions, died from the virus in August after her petitions for release were reportedly denied by a prison warden in Sumterville, Florida.  Johnson was serving a 46-month sentence at the Coleman Federal Correctional Complex for conspiracy to steal public money and for aggravated identity theft.  The bureau declined to comment on her case.

Compassionate release differs from home confinement, a program that Attorney General William Barr directed the Bureau of Prisons to enforce in March, just as the pandemic began to root itself inside the federal prison system.  Home confinement allows current inmates to serve out the remainder of their sentence from the comfort of their home while still remaining under correctional supervision.  The Justice Department prioritized the elderly, those at high-risk, and non-violent offenders for home confinement.  As time went on, the qualifying factors set by the bureau included those who had already served at least half of their sentence.

Since Barr issued the directive, over 7,600 inmates have been placed into home confinement.  Notable recipients include President Trump's former campaign manager, Paul Manafort, and his former personal lawyer, Michael Cohen.  However, in light of the pandemic, judges have been approving more petitions for compassionate release, and organizations like FAMM are helping spearhead the effort.

FAMM, in conjunction with other civil rights groups, created the "Compassionate Release Clearinghouse" in 2019, and has advocated for inmates who qualify for the sentence reduction under the First Step Act.  "We didn't think it was smart to keep sick and elderly people in prison before COVID-19 hit — and it seemed downright immoral to trap them there once it did," said Kevin Ring, the organization's president.

"We don't usually do direct services, but this was a humanitarian emergency.  We are grateful to the hundreds of federal defenders and volunteer attorneys — both in and outside of the Clearinghouse — who helped families get their loved ones out of harm's way."

A few prior recent posts:

• Spotlighting remarkable (but still cursory) data on "compassionate release" after FIRST STEP Act 
• Effective review of messiness of federal compassionate releases amidst COVID 
• FAMM announces notable new campaign focused on a "Second Chances Agenda" 

In (sentencing) memoriam: noting a few major sentencing majority opinions by Justice Ginsburg

Justice Ruth Bader Ginsburg was nominated to be a Justice when I was still in law school, so it has been a very long time since I have thought about a Supreme Court without her voice and views being integral to the Court's work.  And, as I noted in this post last night, she was literally the critical swing vote in US v. Booker to give us the advisory guideline system that has defined the federal sentencing for over fifteen years.

Though Justice Ginsburg did not write an opinion in Booker, she wrote plenty of notable and consequential sentencing opinions for the full Court during her lengthy tenure.  Via this post, I figured I would take a few moments to note and link some sentencing highlights in the remarkable corpus of opinions authored by Justice Ginsburg during her many years on the Court:

Ring v. Arizona, 536 U.S. 584 (2002)

Cunningham v. California, 549 U.S. 270 (2007)

Kimbrough v. United States, 552 U.S. 85 (2007)

Oregon v. Ice, 555 U.S. 160 (2009)

Timbs v. Indiana, 586 U.S. ___ (2019)

By keeping this list focused opinions for the Court, I have left off many of Justice Ginsburg's notable separate opinions and on lots of other criminal law matters.  I suspect readers may recall fondly (or perhaps not so fondly) of other opinions of Justice Ginsburg not listed above, and I welcome thoughts in the comments about Justice Ginsburg's role in shaping modern criminal justice jurisprudence.

Saddened by the passing of Justice Ruth Bader Ginsburg, who gave us advisory federal sentencing guidelines

I was sad to see this news this evening:

Supreme Court Justice Ruth Bader Ginsburg, a diminutive yet towering women’s rights champion who became the court’s second female justice, died Friday at her home in Washington.  She was 87.  Ginsburg died of complications from metastatic pancreatic cancer, the court said....

Chief Justice John Roberts mourned Ginsburg’s passing.  “Our Nation has lost a jurist of historic stature. We at the Supreme Court have lost a cherished colleague.  Today we mourn, but with confidence that future generations will remember Ruth Bader Ginsburg as we knew her — a tireless and resolute champion of justice,” Roberts said in a statement....

Her appointment by President Bill Clinton in 1993 was the first by a Democrat in 26 years.  She initially found a comfortable ideological home somewhere left of center on a conservative court dominated by Republican appointees. Her liberal voice grew stronger the longer she served....

On the court, where she was known as a facile writer, her most significant majority opinions were the 1996 ruling that ordered the Virginia Military Institute to accept women or give up its state funding, and the 2015 decision that upheld independent commissions some states use to draw congressional districts.

Besides civil rights, Ginsburg took an interest in capital punishment, voting repeatedly to limit its use.  During her tenure, the court declared it unconstitutional for states to execute the intellectually disabled and killers younger than 18. In addition, she questioned the quality of lawyers for poor accused murderers....

Ginsburg authored powerful dissents of her own in cases involving abortion, voting rights and pay discrimination against women.  She said some were aimed at swaying the opinions of her fellow judges while others were “an appeal to the intelligence of another day” in the hopes that they would provide guidance to future courts.  “Hope springs eternal,” she said in 2007, “and when I am writing a dissent, I’m always hoping for that fifth or sixth vote — even though I’m disappointed more often than not.”

She wrote memorably in 2013 that the court’s decision to cut out a key part of the federal law that had ensured the voting rights of Black people, Hispanics and other minorities was “like throwing away your umbrella in a rainstorm because you are not getting wet.”

When I think about Justice Ginsburg's sentencing legacy, I do not think about any single opinion but rather about two notable votes. Specifically, Justice Ginsburg was the sole justice to vote with both remarkable majority opinions in US v. Booker: she was the key fifth vote for the merits opinion finding the mandatory federal guidelines unconstitutional and she was the key fifth vote for the remedial opinion making the guidelines advisory. Notably, Justice Ginsburg did not write any opinion in Booker to explain either vote, but her two votes gave us the advisory guideline system that has now defined the federal sentencing system for well over fifteen years.

"In the Shadows: A Review of the Research on Plea Bargaining"

The title of this post is the title of this great new document from the Vera Institute of Justice.  Here is part of the report's introduction:

In whatever form it takes, plea bargaining remains a low-visibility, off-the-record, and informal process that usually occurs in conference rooms and courtroom hallways — or through private telephone calls or e-mails — far away from the prying eyes and ears of open court.  Bargains are usually struck with no witnesses present and made without investigation, testimony, impartial fact-finding, or adherence to the required burden of proof.  Moreover, little to no documentation exists of the bargaining process that takes place between initial charge and a person’s formal admission of guilt in open court, and final plea deals that close out cases are themselves rarely written down or otherwise recorded.  As such, plea deals, and the process that produces them, are largely unreviewable and subject to little public scrutiny.  Thus, despite the high frequency with which plea deals are used, most people — aside from the usual courtroom actors — understand neither the mechanics of plea bargaining nor the reasons so many people decide to plead guilty.

Plea bargaining has, however, become the central focus of a growing, but still small, body of empirical research.  In recent years, mounting concerns about plea bargaining’s role in encouraging the widespread forfeiture of constitutionally guaranteed trial rights and associated procedural protections — and its critical role in fueling mass incarceration — has stimulated further urgency in understanding how the process works.  Indeed, an array of questions regarding its fairness have emerged.  Over the last few decades, prosecutorial leverage in plea negotiations has increased exponentially as changes in substantive law have bolstered criminal penalties and given prosecutors a wider range of choices to use when filing charges (such as mandatory penalties, sentencing enhancements, and more serious yet duplicative crimes already well covered by existing law).  But increased exposure to harsher penalties has not been matched with increased procedural protections for defendants.  Prosecutors’ wide powers in plea bargaining still go largely unchecked, and there are no meaningful oversight mechanisms or procedural safeguards to protect against unfair or coercive practices, raising fears about arbitrariness and inequality.  Given this lack of regulation, concern has also grown over the extent to which innocent people are regularly being induced to plead guilty, as well as plea bargaining’s role in perpetuating racial and ethnic disparities in criminal case outcomes — for example, plea bargaining practices that send more Black people to prison or jail than similarly situated white people.

Plea bargaining’s full impact on the legal system and justice-involved people remains unknown, but empirical research on this little understood yet immensely influential practice has begun to emerge.  In order to provide an accessible summary of existing research to policymakers and the public, the Vera Institute of Justice (Vera) examined a body of empirical studies that has developed around plea bargaining. Although this review is not exhaustive, it provides a picture not only of the current state of scholarship on plea bargaining, but also of the gaps in knowledge that must be filled.

"Public opinion and the politics of collateral consequence policies"

The title of this post is the title of this notable new article authored by Travis Johnston and Kevin Wozniak recently published in Punishment & Society.  Here is its abstract:

We analyze data from a national sample of the U.S. population to assess public support for policies that deny former offenders’ access to job training programs, food stamps, and public housing. We find that Americans generally oppose benefit restrictions, though support for these policies is higher among Republicans and people with higher levels of racial resentment.  We also find that a legislator’s criminal justice reform positions generally do not significantly affect voters’ evaluation of him or her, and even voters with more punitive attitudes toward collateral consequence policies support legislators who advance particular kinds of reform proposals.  These findings provide little evidence that any group of Americans would be mobilized to vote against a legislator who works to reform collateral consequence policies. We discuss the implications of these findings for American and comparative studies of the politics of punishment.

At re-re-re-sentencing, Amy Locane gets eight years in New Jersey state prison for drunk driving vehicular manslaughter

Because it is such an interesting case (and perhaps because I watched Melrose Place way back when), I have blogged repeatedly about the sentencings saga of Amy Locane after her conviction in a tragic and deadly drunk driving case.  Today, Locane was sentenced for the fourth time in this matter, and this Fox News piece provides the details:

Amy Locane has been resentenced to eight years in state prison for a fatal 2010 drunk driving crash that occurred in New Jersey. The former “Melrose Place” actress, 48, has already served a prison sentence but a judge agreed with prosecutors Thursday that her initial sentence was too lenient.

State Superior Court Judge Angela Borkowski said Locane still refuses to fully acknowledge her culpability in the crash that killed 60-year-old Helene Seeman and severely injured Seeman's husband.  State law requires her to serve more than six years before being eligible for parole.  Locane apologized to the Seeman family in a brief statement.  She was placed in handcuffs and taken into custody by court deputies after the proceeding in state court in Somerville.

It was a startling development in a case that has bounced around the New Jersey court system for nearly a decade and has now featured four sentencings in front of three judges, plus numerous appeals.

Locane — who acted in 13 episodes of the popular 1990s Fox series and has also appeared in several movies — was convicted on several counts including vehicular manslaughter, and faced a sentencing range of five to 10 years on the most serious count. The state initially sought a seven-year sentence, but a trial judge sentenced her to three years in 2013.  An appeals court ruled he misapplied the law, but at a resentencing, the same judge declined to give her additional time.

Last year, a different judge sentenced her to five years, but an appeals court ruled he didn't follow guidelines it had set and ordered yet another sentencing.  Locane's attorney, James Wronko, had argued unsuccessfully that sentencing her again would violate double jeopardy protections since she had already completed her initial sentence and parole term.

According to witnesses, Locane had consumed several drinks before she headed home on the night of the accident and slammed into the Seemans' car as it turned into their driveway in Montgomery Township, near Princeton.  The actress contended a third motorist, whose car Locane had bumped into at a traffic light minutes earlier, distracted her by honking at and chasing her.  Locane wasn't indicted for drunken driving, but a state expert testified her blood alcohol level was likely about three times the legal limit and that she was driving roughly 53 mph (85 kmh) in a 35-mph (56-kmh) zone at the time of the crash.

Fred Seeman, who nearly died from his injuries suffered in the crash, attended Thursday's proceeding and said Locane's shifting of blame "shows contempt for this court and the jury that rendered the verdict.”  The judge took a similar view, and said Locane's past alcohol abuse makes her a risk for reoffending.

“You made a conscious decision to drink that day and continued to drink, recognizing at the onset that you needed a ride but didn’t obtain one," Borkowski said.  "If you hadn’t gotten behind the wheel of your vehicle on this night, the incident never would have happened.” Wronko called the sentence “outrageous.  She has always taken full responsibility," and criticized the judge for not taking into account Locane's current sobriety and her work counseling others against alcohol abuse.

Locane has 45 days to appeal her sentence. Wronko said he is waiting to see if the state Supreme Court decides to hear his appeal on the double jeopardy question.

Prior related posts:

• High-profile New Jersey case highlights many challenges of sentencing drunk drivers who kill (and appellate review of sentences)
• Round three of sentencing in high-profile New Jersey deadly drunk driving case still provides no closure
• Never-ending New Jersey drunk driving case highlights fundamental reason why sentencing is so dang hard

Finding a silver lining in new report on Prez Trump's disappointing nominees to US Sentencing Commission

The Marshall Project has this new mostly depressing article about the troubling slate of US Sentencing Commission nominees announced by Prez Trump last month (basics here).  Even the headline of the piece, "Before Election, Trump Tries To Stack Prison-Sentencing Agency With Right Wing Allies," is telling and depressing since the US Sentencing Commission should be a whole lot more than a "Prison-Sentencing Agency" even though this is a disconcertingly fitting descriptor. 

In any event, ever eager to find a silver lining, I found a few passages in the article somewhat indirectly encouraging.  I have bolded below what seems "not so bad" amdist an otherwise disconcerting piece: 

The commission is required by law to be bipartisan and to represent a diversity of backgrounds.  But Trump has broken from that precedent by proposing to fill the agency’s five empty seats with appointees who are nearly all white male former law enforcement officials.  And Senate Majority Leader Mitch McConnell may, in the final months before the end of the president’s term, try to confirm these nominees, according to five Senate Judiciary Committee staffers as well as several advocacy groups.

“We’re worried they’re trying to cram these appointments through in case Trump loses,” said Kevin Ring, president of the advocacy group Families Against Mandatory Minimums....  The president’s nominees include Judge Henry E. Hudson, a federal judge in Virginia known as “Hang ‘Em High Henry,” who once said, “I live to put people in jail.”  Hudson, a former prosecutor and former director of the U.S. Marshals Service, led a Reagan administration anti-pornography commission that claimed that viewing sexual images causes sex crimes....

Also among the president’s picks for the commission is Judge K. Michael Moore of Florida, another former prosecutor and another former director of the U.S. Marshals.  In 2015, Moore sent a nonviolent first-time drug offender to prison for 20 years, a sentence so extreme that Trump commuted it four years later.

Other nominees include Judge Claria Horn Boom of Kentucky, a former prosecutor championed by McConnell, and John G. Malcolm, a former prosecutor who is now the director of a judicial studies program at the conservative Heritage Foundation.  The lone non-prosecutor in the group is Judge Luis Felipe Restrepo of Pennsylvania, a former public defender nominated to the federal bench by former President Obama....

Trump has said little publicly about his nominees, perhaps to avoid drawing media attention that could complicate their confirmation by the Senate Judiciary Committee.  Senator Kamala Harris, the Democratic vice presidential nominee, is a member of that committee, as are some Republicans — including Chuck Grassley of Iowa and Mike Lee of Utah — who have supported some efforts to moderate harsh sentencing.

Judiciary Committee staffers said that one or two of Trump’s picks may get confirmed, but probably not all.  Reform advocates say there is not enough time to properly evaluate the candidates, and that any vote on them should wait until next year.  “During normal times, the wonkiness of nominees to the Sentencing Commission might have allowed the package to move forward,” said David Safavian, general counsel of the American Conservative Union and an advocate of sentencing reform.  “But it’s too easy for Democrats to demagogue Henry Hudson.” 

Spokespeople for McConnell and for Sen. Lindsey Graham, the chairman of the Judiciary Committee, did not respond to requests for comment as to whether there will be a confirmation hearing in the coming months....

Legal experts see William Barr’s hand in this slate of nominees consisting of nearly all former Justice Department prosecutors. “Prosecutors always say, ‘We don’t make the law, we just enforce it,’” said Safavian of the American Conservative Union.  But choosing this group of appointees to set federal sentencing rules, he said, “is one of many examples of how that is not at all true.”

The fact that this piece indirectly quotes Senate staffers indicating that "one or two of Trump’s picks may get confirmed, but probably not all" seems to me a sign that this slate of nominees in this form is very unlikely to be "rubber stamped" by the current GOP-led Senate anytime soon.  In addition, the fact Prez Trump and Senators Graham and McConnell do not seem to be at all eager to talk up these nominees is another reason to think they are unlikely to sail through the confirmation process.  And if ultimately just a couple of nominees, especially John Malcolm and Judge Restrepo, were to get through the process, we might even hope to see this dormant judicial agency moving in the right direction sooner rather than later.

But this optimistic tea-leaf reading from someone way outside the Beltway may be just a kind of naive wishful thinking about what is really afoot with USSC nominations inside the Beltway.  Regardless of the election results, I could still imagine a world in which the current GOP-led Senate uses the lame duck months to confirm many if not all of this Trumpian slate.  And I presume if Trump is reelected and the Senate remains in GOP control, this folks in this slate of nominees are functional front-runners for the USSC's open slots even if those slots do not get filled into 2021 or beyond.

Prior related posts:

• Prez Trump makes (tough) nominations to US Sentencing Commission 
• Lots of notable reaction to Prez Trump's nominations to the US Sentencing Commission
• Another round of criticisms of Prez Trump's decision to nominate Bill Otis to US Sentencing Commission 
• FAMM writes extended letter to Prez Trump to "strongly discourage" re-nomination of Bill Otis to US Sentencing Commission 
• With his return to blogging, is Bill Otis no longer a potential nominee for the US Sentencing Commission? 
• Notable new talk of (badly needed) new nominees for the US Sentencing Commission
• Prez Trump finally announces full slate of (unlikely to be confirmed?) new nominees for the US Sentencing Commission 
• FAMM urges Senators to "refrain from filling the vacancies" on the US Sentencing Commission until next year
• Reviewing reservations about Prez Trump's latest slate of US Sentencing Commission nominees
• Leadership Conference urges Senate Judiciary Committee "not to advance" Prez Trump's slate of nominee to the US Sentencing Commission

BOP reported federal prison population ticks up for first time in COVID era

Regular readers know that I have been closely watching COVID-era changes in the federal prison population because of dramatic declines in the federal Bureau of Prisons' weekly updated "Total Federal Inmates" numbers.  At the start if the COVID era, the reported federal prison population was around 175,000.  But, as I highlighted in a series of prior posts, according to BOP's reporting, most weeks through much of the spring the federal prison population shrunk around or over 1,000 persons per week.  Into and through the summer months, weekly declines continued but at a rate closer to about 500.  As of last week, as reported in this post, the BOP reported "Total Federal Inmates" was down to 155,483. 

Today, on the cusp of fall 2020, the new BOP numbers at this webpage report "Total Federal Inmates" at 155,741.  In other words, there is reason to wonder whether we may have hit "the bottom" as to COVID era federal population declines, as this week we see an increase in the reported population of just ver 250 persons.  

I have wondered repeatedly in these posts whether COVID-delayed sentencings and stalled federal prison transfers may account for most of these declines.  But a persistent lack of any real-time sentencing data from the US Sentencing Commission and the opaque nature of BOP data make it hard for me to be sure just what these reported population numbers represent.  As I have said before, I am hopeful we may eventually get some timely sentencing data from the USSC.  But we are now well over six months into the pandemic, and the USSC still seems in no rush to provide any inkling of how the federal criminal sentencing process has been impacted by and adjusting to the COVID era.

A few of many prior related posts:

• Federal prison population, thanks in part to the FIRST STEP Act, hits lowest level in over 15 years (from July 2019)
• Federal prison population, due seemingly to COVID responses, hits another modern low (which is still very high) (from April 2020)
• Federal prison population drops below 170,000 for first time in nearly two decades (from May 2020)
• As federal prison population continues remarkable decline, can anyone predict what might be a new normal? (from May 2020)
• "Total Federal Inmates," as reported by BOP, drops below 165,000 (from June 2020)
• Federal prison population, per BOP report of "Total Federal Inmates," drops below 160,000 (from early July 2020)
• Federal prison population, per BOP reporting, now down to 157,862 (from late July 2020)
• Federal prison population, per BOP report of "Total Federal Inmates," now down to 156,415 (from mid Aug 2020)
• Federal prison population now down to 155,483 according to BOP reporting (from Sept 10, 2020)

Can a modest federal bail reform bill with bipartisan sponsorship become law in these crazy times?

I do not blog much about bail reforms issues, though these topics were quite "hot" even before the pandemic and these issues seem even more pressing now.  And given notable research documenting a link between federal pretrial release and sentencing outcomes, I am particular interested in the new bill filed earlier this month as discussed in this press release:

U.S. Senators Dick Durbin (D-IL), Mike Lee (R-UT), and Chris Coons (D-DE), members of the Senate Judiciary Committee, today introduced the bipartisan Smarter Pretrial Detention for Drug Charges Act of 2020, a targeted bill that would eliminate the blanket presumption of pretrial detention for most federal drug charges.  Pretrial detention rates in the federal system are at record high levels and on an upward trend across all demographic groups.  This legislation would permit federal courts to make individualized determinations regarding whether pretrial detention is appropriate for each defendant charged with a nonviolent drug offense.  Any defendant found to be a flight risk or a threat to public safety would be detained.

This supportive one-pager from the Due Process Institute provides a great account of this bill and its wisdom.  Here is an excerpt:

When a person is arrested and accused of a crime, a judge must determine whether he or she will be released with certain conditions pending resolution of their case or be detained until their conviction or acquittal occurs.  In federal court, the judge’s decision whether to release or detain someone pretrial is governed by 18 U.S.C. § 3142, which sets forth several factors for the judge to take into consideration.  The main directive of the statute is that judges should release persons accused of unproven crimes who are not flight risks and who do not “pose a danger to any other person or the community.”  The federal bail statute also, however, includes a small list of offenses for which a legal presumption in favor of incarceration is imposed based solely on the criminal charge instead of any specific assessment of the accused.  While many of the offenses included in this presumptive list might make sense given the gravity of the accusation, the list also unfortunately includes many nonviolent federal drug offenses.

Persons accused of drug offenses represent over 42% of those charged with non-immigration federal crimes.  Statistics show that for them — the second largest group of people in the federal system — it is difficult to overcome this presumption.  In fact, recent federal data show that more than 60% of those charged with drug offenses will be incarcerated before trial.  In addition, data show that pretrial detention puts these defendants at a greater sentencing disadvantage if convicted versus those who are granted pretrial release.  There is also persuasive evidence that the statutory presumption has failed to correctly identify which defendants actually even present a risk.  Unfortunately, the racial disparities we see throughout the criminal system also appear in pretrial release rates in drug cases.  Moreover, some of the most vulnerable people in our society are those currently locked inside jails amid the COVID-19 pandemic — people who have not been found “guilty” of anything and are merely incarcerated while they defend or resolve their charges.  And this pro-carceral presumption is extremely costly.

The Smarter Pretrial Detention for Drug Charges Act presents a simple, effective solution supported by leaders and organizations from both sides of the aisle.  It would merely remove the presumption of pretrial incarceration that currently applies to those charged with nonviolent drug offenses.  The passage of this bill will not mean that all, or even most, accused federal drug offenders will be released before trial.  It would, however, simply permit a federal judge to make a more individualized determination of whether to detain someone based on the same factors they use to evaluate practically everyone else.  Anyone deemed a flight risk or a danger to public safety will still be detained.  Anyone released can still be subject to multiple conditions and community supervision by pretrial services.

"Toward Shared Safety: The First-Ever National Survey of America’s Safety Gaps"

The title of this post is the title of this notable new report from the Alliance for Safety and Justice.  Here is how the report's Executive Summary gets started:

Toward Shared Safety: The First-Ever National Survey of America’s Safety Gaps is a first-of-its-kind national study of Americans’ unmet safety needs and public safety policy preferences.  In a moment of unprecedented change — and growing consensus on the need for new approaches to public safety — this report aims to fill critical gaps in information, to help point decision-makers toward a new set of safety solutions that can better serve vulnerable Americans, improve public safety and stop the cycle of crime.

Despite dramatic increases in safety and justice spending over the last several decades, few of those expenditures are informed by the needs of Americans lacking safety or consistently aligned with Americans’ policy preferences.  As concerns about spending and criminal justice grow, there’s never been a more important time to ask some fundamental questions about safety.  What are the gaps in safety that people impacted by crime, violence and criminal justice experience?  What are the priority safety investments that matter the most to Americans of all walks of life?

In June of 2020, over 4,000 Americans were surveyed about their experiences with safety and attitudes about safety policy.  In particular, the survey engaged with people vulnerable to the cycle of crime, including crime victims, people experiencing mental health or substance abuse challenges, and those living with past convictions, as well as voters of all backgrounds, regardless of experience.

As the report details, there is remarkable alignment between gaps in safety that vulnerable people face and the public safety policy preferences that most all Americans support  — policy preferences that would address those very gaps.  Broad consensus exists at the neighborhood level and across different demographics: public safety policies and investments should prioritize violence prevention, recovery, mental health, reentry and the most effective strategies to stop the cycle of crime, more than incarceration.  It’s time for federal, state and local expenditures to match these urgently needed and popularly supported priorities.  It’s time for Shared Safety.

"Conviction, Imprisonment, and Lost Earnings: How Involvement with the Criminal Justice System Deepens Inequality"

The title of this post is the title of this notable new report from the Brennan Center. A Foreword to report was authored by Joseph Stiglitz, and here is part of its text:

America is approaching a breaking point.  For more than four decades, economic inequality has risen inexorably, stunting productivity, weakening our democracy, and leaving tens of millions struggling to get by in the world’s most prosperous country.  The crises that have rocked the United States since the spring — the coronavirus pandemic, the resulting mass unemployment, and a nationwide uprising for racial justice — have made the inequities plaguing American society more glaring than ever.

This year’s intertwined emergencies have also driven home a reality that some would rather ignore: that the growing gap between rich and poor is a result not just of the market’s invisible hand but of a set of deeply misguided policy choices.  Among them, this groundbreaking report reveals, is our entrenched system of mass incarceration.  Mass incarceration reflects and exacerbates so many dimensions of this country’s divides — in income and health, in voice and power, in access to justice, and most importantly, over race.

The number of people incarcerated in America today is more than four times larger than it was in 1980, when wages began to stagnate and the social safety net began to be rolled back.  We’ve long known that people involved in the criminal justice system — a group that’s disproportionately poor and Black — face economic barriers in the form of hiring discrimination and lost job opportunities, among other factors.  This report demonstrates that more people than previously believed have been caught up in the system, and it quantifies the enormous financial loss they sustain as a result; those who spend time in prison miss out on more than half the future income they might otherwise have earned.

Ascertaining through careful statistical analyses just how costly the mass incarceration system has been to the people ensnared by it is a major achievement.  These findings reframe our understanding of the issue: As a perpetual drag on the earning potential of tens of millions of Americans, these costs are not only borne by individuals, their families, and their communities.  They are also system-wide drivers of inequality and are so large as to have macroeconomic consequences....

These costs come on top of other enormous costs imposed on society by our mass incarceration system.  Some states have spent as much on prisons as on universities.  The pandemic will make public funds even scarcer.  More money spent on incarcerating more people will weaken our future, while the same money spent on expanding our universities will lead to a stronger 21st century economy.

Mass incarceration has been a key instrument in voter suppression, because people with criminal records are deprived of the right to vote in some states, and in many states former prisoners are responsible for re-registering once they are released.  This undermines democracy: since poor and Black people suffer from mass incarceration disproportionately, they will be underrepresented in our electorate.

Meanwhile, a nationwide reckoning over deep-rooted racial injustice is forcing our country to come to terms with the ways in which these injustices have been perpetuated in the century and a half since the end of slavery.  For the past four decades, mass incarceration — with the deprivation of political voice and economic opportunity that is so often associated with it — has been at the center.  It renders economic mobility for so many Black Americans nearly impossible....

This report shows what needs to be done to stop mass incarceration. Equally important, it shows how to deal with its legacy: the large number of American citizens with criminal records.  It was wrong that they lost so many of their formative years, often for minor infractions. It is doubly wrong that they suffer for the rest of their lives from the stigma associated with imprisonment.  For them, and for our entire society, we need to minimize the consequences of that stigma.

There is much that has to be done if our society is to fully come to terms with our long history of racial injustice.  Stopping mass incarceration is an easy place to begin.  This report makes a compelling case for the enormous economic benefits to be derived from doing so.

DPIC releases big new report on "Enduring Injustice: the Persistence of Racial Discrimination in the U.S. Death Penalty"

The Death Penalty Information Center this morning released this big new report highlighting the history of racialized application of the ultimate punishment in the US.  This DPIC press release partially summarizes its coverage and context, and here are excerpts:

As social movements pressure policymakers to redress injustices in the criminal legal system and to institute reforms to make the process more fair and equitable, the Death Penalty Information Center (DPIC) today released, “Enduring Injustice: the Persistence of Racial Discrimination in the U.S. Death Penalty.”  This report provides an in-depth look at the historical role that race has played in the death penalty and details the pervasive role racial discrimination continues to play in the administration of capital punishment today.

“The death penalty has been used to enforce racial hierarchies throughout United States history, beginning with the colonial period and continuing to this day,” said Ngozi Ndulue, DPIC’s Senior Director of Research and Special Projects and the report’s lead author.  “Its discriminatory presence as the apex punishment in the American legal system legitimizes all other harsh and discriminatory punishments.  That is why the death penalty must be part of any discussion of police reform, prosecutorial accountability, reversing mass incarceration, and the criminal legal system as a whole.”  Ms. Ndulue previously served as the NAACP’s Senior Director of Criminal Justice Programs and as a capital appeals lawyer.

“Racial disparities are present at every stage of a capital case and get magnified as a case moves through the legal process,” said Robert Dunham, DPIC’s Executive Director and the report’s editor.  “If you don’t understand the history — that the modern death penalty is the direct descendant of slavery, lynching, and Jim Crow-segregation — you won’t understand why. With the continuing police and white vigilante killings of Black citizens, it is even more important now to focus attention on the outsized role the death penalty plays as an agent and validator of racial discrimination.  What is broken or intentionally discriminatory in the criminal legal system is visibly worse in death-penalty cases. Exposing how the system discriminates in capital cases can shine an important light on law enforcement and judicial practices in vital need of abolition, restructuring, or reform.”

Racial bias persists today, as evidenced by cases with white victims being more likely to be investigated and capitally charged; systemic exclusion of jurors of color from service in death-penalty trials; and disproportionate imposition of death sentences against defendants of color. The report provides compelling evidence of racial bias in the modern death penalty, including:

• A 2015 meta-analysis of 30 studies showed that the killers of white people were more likely than the killers of Black people to face a capital prosecution.

• A study in North Carolina showed that qualified Black jurors were struck from juries at more than twice the rate of qualified white jurors. As of 2010, 20 percent of those on the state’s death row were sentenced to death by all-white juries.

• Since executions resumed in 1977, 295 African-Americans defendants have been executed for the murder of a white victim, while only 21 white defendants have been executed for the murder of an African-American victim.

• A 2014 mock jury study of more than 500 Californians found that white jurors were more likely to sentence poor Latinx defendants to death than poor white defendants.

• Exonerations of African Americans for murder convictions are 22 percent more likely to be linked to police misconduct.

Making the case for independent oversight of the federal Bureau of Prisons

Kevin Ring has this effective new Hill commentary headlined "Congress should support independent oversight of federal prisons." I recommend the full piece, and here are excerpts:

If the federal Bureau of Prisons (BOP) can ignore a United States senator with impunity, what chance does an average citizen with a loved one in prison have of getting their concerns addressed?  The answer is likely none.  It’s time for Congress to address the BOP’s lack of accountability and transparency by creating an independent body to oversee the agency.

Nine months ago, Sen. Marco Rubio (R-Fla.) learned of allegations that women were being sexually assaulted by corrections staff at the Coleman federal prison complex in his state.  He also had heard reports that Legionnaire’s disease was spreading throughout the complex.  He wrote to Attorney General William Barr to ask what the BOP, which the Justice Department oversees, was doing to protect women and stop the disease’s spread.  Nine months later, Rubio still had not gotten a response.

What Rubio experienced is what nearly 160,000 families with people in the BOP’s custody experience every day: maddening silence or, if they’re lucky, getting the run-around in response to inquiries about a loved one’s health, safety, or sometimes even their location.  If a U.S. senator cannot get answers from the BOP, imagine what doing so is like for an average person with no political connections.

The media, lawmakers, taxpayers and families are left in the dark about how the BOP runs its 122 prison facilities.  Prisoners and their families regularly must resolve problems small, large and life-threatening with the agency, for the years or decades that a sentence lasts.  Congress’s judiciary committees hold BOP oversight hearings, but they are rarely in-depth or revealing.  At a recent Senate Judiciary Committee hearing, committee members were unable to get data from the BOP about basic issues such as coronavirus testing, demographics of people released, and the agency’s response to ongoing federal litigation.  An agency that is constitutionally required to maintain the health, safety, and rehabilitation of 160,000 people deserves continuous oversight, not a hearing once or twice a year....

Several states have established effective prison oversight offices to great success. These offices, sometimes called “ombudsmen,” typically are independent from state Departments of Corrections.  Their powers include the ability to enter and inspect prisons without notice, conduct confidential interviews with incarcerated people and prison staff, recommend improvements and monitor their implementation, access data and records, and even help resolve complaints from families and prisoners.

Oversight such as this helps identify and prevent problems (and costly lawsuits) and makes prisons safer places for those who reside and work there.  This year, New Jersey Gov. Phil Murphy signed a law greatly expanding the powers of the state’s oversight office.  Washington State, Pennsylvania and New York also have prison oversight bodies, and Texas has a statewide jail oversight body.

Bureau of Justice Statistics reports encouraging crime declines in release of results of 2019 National Crime Victimization Survey

As reported in this press release and as fully detailed in this 53-page report, the Bureau of Justice Statistics has just published the results from its annual survey of households about their experiences with crime. Notably, most other reports about crime rates are based on crimes reported to police, but this annual survey in different: "TheNCVS is the nation's largest crime survey and collects data on nonfatal crimes both reported and not reported to police." Here are some of the statistical highlights via the press release:

After rising from 1.1 million in 2015 to 1.4 million in 2018, the number of persons who were victims of violent crime excluding simple assault dropped to 1.2 million in 2019, the Bureau of Justice Statistics announced today. Statistics on crimes that have occurred in 2020, during the coronavirus pandemic, are being collected now and will be reported next year....

The rate of violent crime excluding simple assault declined 15% from 2018 to 2019, from 8.6 to 7.3 victimizations per 1,000 persons age 12 or older.  Among females, the rate of violent victimization excluding simple assault fell 27% from 2018 to 2019, from 9.6 to 7.0 victimizations per 1,000 females age 12 or older.  Violent crimes other than simple assault are those that are generally prosecuted as a felony.

From 2018 to 2019, the portion of U.S. residents age 12 or older who were victims of one or more violent crimes excluding simple assault fell from 0.50% to 0.44%, a 12% decrease.  There were 880,000 fewer victims of serious violent or property crimes (generally felonies) in 2019 than in 2018, a 19% drop. From 2018 to 2019, 29% fewer black persons and 22% fewer white persons were victims of serious crimes.  Victims of serious crimes are those who experienced a serious violent crime or whose household experienced a completed burglary or completed motor-vehicle theft.

This year, BJS provides new classifications of urban, suburban and rural areas, with the goal of presenting a more accurate picture of where criminal victimizations occur. Based on the NCVS’s new classifications, the rate of violent victimization in urban areas declined from 26.5 victimizations per 1,000 persons age 12 or older in 2018 to 21.1 per 1,000 in 2019, a 20% decrease from 2018 to 2019.

Nationally, rape or sexual assault victimizations declined from 2.7 per 1,000 persons age 12 or older in 2018 to 1.7 per 1,000 in 2019. Across all crime types, victimizations reflect the total number of times people or households were victimized by crime. Based on the 2019 survey, less than half (41%) of violent victimizations were reported to police. The percentage of violent victimizations reported to police was lower for white victims (37%) than for black (49%) or Hispanic victims (49%).

In 2019, there were 5.4 million total violent incidents involving victims age 12 or older. The portion of violent incidents involving black offenders (25%) was 2.3 times the portion involving black victims (11%), while the portion involving white offenders (50%) was 0.8 times the portion involving white victims (62%) and the portion involving Asian offenders (1.0%) was 0.4 times the portion involving Asian victims (2.3%).

The 2019 survey found that an estimated 12.8 million U.S. households experienced one or more property victimizations, which include burglaries, residential trespassing, motor-vehicle thefts and other thefts. The rate of property crime declined 6% from 2018 (108.2 victimizations per 1,000 households) to 2019 (101.4 per 1,000).

This decline in property crime was partly due to a 22% decrease in burglary from 2018 to 2019 (from 15.0 to 11.7 burglary victimizations per 1,000 households). Moreover, the rate of burglary victimization declined to the lowest level since the NCVS was redesigned in 1993.

In addition to being eager to celebrate this report of important crime declines in 2019, I am tempted to highlight that the FIRST STEP Act became law at the very tail end of 2018 and was in effect for all of 2019.  I do not want to seriously claim, based only on this data, that there is likely a cause-and-effect relationship between modest federal sentencing and prison reforms in December 2018 and national crime declines in 2019.  But I still think it quite notable given that some prominent critics of criminal justice reform loudly called part of the Act a "foolish ... jailbreak that would endanger communities" or regularly asserted that this "leniency legislation inevitably would lead to more crime."  As long-time students of crime and punishment know well, it is almost impossible to make simple and accurate predictions about what kinds of sentencing legislation will or will not end up having an impact (positive or negative) on crime.

"Revisiting Hate Crimes Enhancements in the Shadow of Mass Incarceration"

The title of this post is the title of this new paper authored by Shirin Sinnar and Beth A. Colgan.  Here is its abstract:

Although civil rights advocates have largely supported hate crimes laws over the last four decades, growing concern over mass incarceration is now leading some to question the focus on enhancing prison sentences.  This Essay explores two alternatives to the traditional sentence enhancement model that might retain the expressive message of hate crimes laws — to convey society’s particular condemnation of crimes of bias — while relying less heavily on police and prisons: the reformation of victim compensation programs to help victims and targeted communities and the application of restorative justice processes to hate crimes.  Each of these alternatives presents complications, but both offer sufficient potential to justify further exploration.

The new death penalty: The Marshall Project reporting COVID prisoner deaths exceed 1000

In this post back in May, I started what became a series of posts in which I noted what might be called a new kind of death penalty for prison and jail inmates in the United States: by killing many hundreds of incarcerated persons, COVID-19 has turned all sorts of other sentences into functional death sentences.  In prior postings, I have often flagged the death data from the UCLA Covid-19 Behind Bars Data Project, but today I see that The Marshall Project has updated data here showing that prisoner deaths have hit another grim milestone:

Deaths

The first known COVID-19 death of a prisoner was in Georgia when Anthony Cheek died on March 26. Cheek, who was 49 years old, had been held in Lee State Prison near Albany, a hotspot for the disease.  Since then, at least 1,016 other prisoners have died of coronavirus-related causes.  By Sept. 8, the total number of deaths had risen by 5 percent in a week.

There have been at least 1,017 deaths from coronavirus reported among prisoners.

Of course, 1000 is just a round number and every single COVID death is individually sad and disconcerting.  I continue to hope that, somehow, we might be getting past the worst of this pandemic that has (predictably) already been so lethal for persons in and around prisons and jails. 

A few of many prior related posts:

• The new death penalty: COVID has now killed more US prisoners in weeks than the US death penalty has in over a decade (from May 2020)
• The new death penalty: COVID has now killed more US prisoners in months than the US death penalty has in the last two decades (from Aug 2020)
• The new death penalty: COVID has now killed more than 500 US prisoners and prison staff according to UCLA Law data 
• The new death penalty: COVID now a leading modern killer of California inmates on death row 
• From drug sentences to death sentences: documenting arbitrary and capricious drug war casualties
• Memorializing more drug war casualties: updating the federal drug sentences that COVID-19 turned into death sentences 

Highlighting the need for, and the support for, reforming mass community supervision

Jessica Jackson's new USA Today piece, headlined "The expensive burden of parole, probation unjustly places people in a second prison," highlights why community supervision is another form of mass punishment that needs reform attention.  Here are excerpts:

According to the Bureau of Justice Statistics, nearly 4.4 million Americans were on probation or parole in 2018, approximately twice the number of people incarcerated in the United States.  [And] more than 75% were under supervision for nonviolent offenses, according to The Pew Charitable Trusts.  Since 1990, the number of women on parole or probation has almost doubled to more than 1 million in 2016. And though African Americans make up just 13% of the U.S. adult population, they account for 30% of those on community supervision.

Sadly, almost 350,000 of people who exit probation or parole each year return to jail or prison, often for technical violations rather than for committing new crimes.  In fact, probation and parole failures account for 45% of state prison admissions nationwide.

Collectively, states spend $2.8 billion annually to incarcerate people for noncriminal rule violations.  This is money that could be better used to help people gain the skills and treatment they need to successfully reenter their communities after incarceration, something that has strong public support.   A new Morning Consult survey conducted in eight states on behalf of my organization, the REFORM Alliance [reported here], found:

► A majority of voters in six of the eight states think it is important to reduce the number of people on probation or parole supervision.

► A plurality of voters in all eight states think the United States spends too much incarcerating people for violating the conditions of their probation or parole.

► At least half of voters in seven of the eight states would be more likely to support a public official who wants to reform the probation and parole system.

Perhaps most important, a majority of voters in all eight states support commonsense probation and parole reforms, such as: decreasing caseloads for probation officers; providing mentorship programs for those on parole or probation; allowing people on probation to report to their supervisors remotely; incentivizing and encouraging supervised people to participate in rehabilitative programs; and investing savings from a smaller supervised population into reentry programs.

Simply put, people want a smarter system that balances accountability and public safety with rehabilitation and redemption. We know it's possible.  Crime and incarceration dropped at the same time in 37 states over a nine-year period, according to data from the Pew Charitable Trusts.  Red and blue states, alike, are continuing that progress, with legislatures in Mississippi, California and Louisiana passing parole and probation reform legislation this year.

A timely reminder that the war on drugs, and even the war on marijuana, is not anywhere close to over

Just last night I flagged here a new article by Michael Vitiello about the "war on drugs" and extreme sentences for drug crimes.  And this morning I saw this news article from Kansas this past week that provides a reminder that the US drug war as operationalized through extreme sentences even for marijuana offenses remains a very current reality for far too many.  The piece is headlined "Man serving 7.5 years on marijuana case says Kansas’ sentencing laws aren’t just," and here are excerpts:

A man sentenced to more than seven years in prison on a marijuana case wants Kansas Gov. Laura Kelly to consider his request for clemency and to see the state change its drug penalty laws.  Donte Westmoreland, 25, had no prior convictions when he was found guilty of possession of marijuana with intent to distribute and conspiracy to distribute in May 2017 in Riley County. Judge John Bosch sentenced him to 92 months....

Kansas has a sentencing range guideline intended to promote uniformity in penalties. Bosch gave Westmoreland the lower end of the range.  But Christopher Joseph, Westmoreland’s attorney during sentencing and his appeal, said many judges across the state depart from the guidelines for marijuana cases, instead handing down probation....

According to a motion filed in the case, probation was given in 95% of the marijuana distribution cases in Kansas involving defendants with low criminal history scores.

On March 8, 2016, police observed two vehicles traveling in close proximity to each other. Officers testified that they believed a Hyundai was an escort vehicle for a Lexus. Westmoreland, of Stockton, California, was a passenger in the Hyundai, which was stopped for an obstructed license plate and searched in Geary County.  A small amount of marijuana was found in the trunk, according to court documents.  The Hyundai was released and it continued to an apartment complex in Riley County, where the Lexus met them about 20 minutes later. Officers followed them to the apartment of Jacob Gadwood, where they searched the Lexus and found packages of drugs.

Westmoreland and the driver of the Hyundai were arrested. Three other co-defendants who fled the scene were later taken into custody. Gadwood agreed to become an informant for prosecutors and testified that Westmoreland came to his apartment to sell marijuana. The five defendants in the case faced varying charges related to possessing and distributing marijuana, court records showed.  Sentences ranged from time served to Westmoreland’s 92 months, which was the longest.

In a statement to The Star, Riley County Attorney Barry Wilkerson said Westmoreland went to Manhattan to sell large amounts of marijuana with three others in two vehicles, one of which was a decoy.  “These were sophisticated dealers of narcotics,” Wilkerson said. “One of the vehicles was a Lexus.  92 months was a fair sentence under the circumstances.”

In Kansas, a defendant could serve a longer sentence for marijuana crimes than violent crimes such as voluntary manslaughter. “The current Kansas law and penalties for marijuana are unjust,” Joseph said. “The law is so out of sync with reality at this point.”

Lauren Bonds, legal director of the ACLU of Kansas, said Kansas is being closed in on.  Recreational marijuana became legal in Colorado in 2014.  Missouri and Oklahoma have passed medicinal marijuana laws and Nebraska has taken steps to decriminalize the drug....

Kansas Sen. Richard Wilborn, R-McPherson, chairs the Judiciary Committee and said sentencing guidelines is one of the topics “in the forefront.” He said he would take any recommendations from the Criminal Justice Reform Commission seriously, but that legislation has to be proportional with other illegal substances and not target a single issue.

Westmoreland said he supports reforms that address racial and sentencing disparities.  Twenty-eight percent of the Kansas Department of Corrections’ population is Black. According to the U.S. Census, Black people make up 6.1% of the state.

Earlier this year, Westmoreland submitted a clemency application to Gov. Laura Kelly’s office. The request included letters of support from Lansing Warden Shannon Meyer, Sen. Randall Hardy, R-Salina, and Rep. John Alcala, D-Topeka....  Kelly’s office is in the process of reviewing the clemency request, spokeswoman Lauren Fitzgerald said.

I fully understand why many advocates for criminal justice reform who are eager to end mass incarceration are now quick to stress that we need to address unduly long sentences for violent crimes.  But I see these kinds of extreme drug sentencing cases and continue to stress that we still need to make a whole lot more progress on reform for so many non-violent crimes, too, while also recognizing that it will be hard to get a place like Kansas to be less harsh in response to violent crimes if state law still provides that "a defendant could serve a longer sentence for marijuana crimes than violent crimes such as voluntary manslaughter."

Moreover, severe drug war attitudes are ultimately more enduring and perhaps even more problematic than even severe drug war laws.  That the prosecutor here is still eager to assert that such a long sentence for mere distribution of marijuana "was a fair sentence under the circumstances" showcases that many drug warriors are seemingly not inclined to rethink even the most severe weapons used to wage this unwinnable and damaging war. 

"The War on Drugs: Moral Panic and Excessive Sentences"

The title of this post is the title of this new article now available via SSRN and authored by Michael Vitiello.  Here is its abstract:

The United States’ War on Drugs has not been pretty. Moral panic has repeatedly driven policy when states and the federal government have regulated drugs.  Responding to that panic, legislators have authorized severe sentences for drug offenses.  By design, Article III gives federal judges independence, in part, to protect fundamental rights against mob rule.  Unfortunately, the Supreme Court has often failed to protect fundamental rights in times of moral panic.  For example, it eroded Fourth Amendment protections during the War on Drugs.  Similarly, it failed to protect drug offenders from excessive prison sentences during the War on Drugs.

This article examines whether it is time for the Supreme Court to rethink its precedent upholding extremely long sentences for drug crimes.  In 1983, in Solem v. Helm, the Supreme Court held that the Eighth Amendment’s Cruel and Unusual Punishment Clause applies to terms of imprisonment.  There, it found the imposition of a true-life sentence imposed on a repeat offender to be grossly disproportionate to the gravity of the defendant’s offense.   Whatever hope Solem created that courts might limit excessive sentences proved to be false.  Two Supreme Court cases dealing with drug sentences, bracketing Solem, demonstrate the Court’s unwillingness to override legislatures’ discretion in imposing sentences.  In 1982, the Court upheld a 40-year term of imprisonment imposed on an offender who possessed less than nine ounces of marijuana.  In 1991, the Court upheld a true-life sentence imposed on an offender who possessed 672 grams of cocaine.  The Court’s refusal to curtail such extreme sentences reflects its willingness to accede to the nation’s moral panic over drug usage.

Since the height of the War on Drugs, Americans have changed their views about drugs.  Significant majorities of Americans favor legalization of marijuana for medical and recreational use.  Many Americans favor a wholesale rethinking of drug policy.  Despite studies in the 1950s and 1960s, demonstrating beneficial use of drugs like LSD and psilocybin, Congress yielded to moral panic and included them in Schedule I when it enacted the Controlled Substances Act of 1970. Efforts are afoot at the state level to legalize the study of and to decriminalize the use of those and other drugs.

This article argues that the Court should rethink its Eighth Amendment caselaw upholding severe drug sentences.  The Court’s Eighth Amendment caselaw balances the severity of punishment against the gravity of an offense.  In turn, the gravity of an offense turns on its social harm and the culpability of the offender.  The Court upheld extreme drug sentences based on the view that drugs were a national scourge.  Moral panic led it to overstate the social harm and the culpability of drug offenders.  Scientifically based examination of drugs and drug policy should compel the Court to rethink its excessive punishment caselaw because the balance between severity of punishment and the gravity of drug offenses looks different when one has a better understanding of true costs and benefits of drug use. 

"Have Problem Solving Courts Changed the Practice of Law?"

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

Drug courts started thirty years ago in the United States.  The introduction of these courts brought high hopes that they would refocus our criminal legal system to therapeutic and rehabilitative methods while moving away from an otherwise largely punitive and punishment-oriented approach.  Has this happened?  Has the problem-solving court movement brought widespread change to how criminal cases are processed and how criminal lawyers, both prosecutors and defense lawyers, approach the practice of law?  Have these courts actually been a “monumental change?”  The simple answer is no.  These courts have changed how some defendants are treated some of the time.  But, the numbers impacted by these courts, even as the number of these courts has grown dramatically, remains small.  And, the rehabilitative approach within these courts has not led to changes in how other courts work within the larger criminal legal system. Problem-solving courts have remained, for the most part, in their own silo while other courts have continued business as usual focusing on punishment, not rehabilitation.

This article will start with a discussion of mass incarceration and offer some reasons why problem-solving courts did not prevent, or lessen, mass incarceration.  Next this article will discuss how problem-solving courts work, focusing on the roles of the professionals, the judges and lawyers, within these courts.  This article will then consider the impact, or lack of impact that these courts have had on how the larger criminal legal system works.  Finally, this article will suggest five key things that problem-solving courts do that would result in “monumental change” if more widely adopted by mainstream criminal courts.