Sentencing Law and Policy

Prez Trump reportedly to announce support for FIRST STEP Act with sentencing provisions, greatly increasing its prospects for swift passage

This new CNN article, headlined "President Trump to announce support for criminal justice overhaul proposal," reports on encouraging news regarding efforts to get major federal criminal justice reform enacted in coming weeks. Here are the details:

President Donald Trump is expected to throw his support behind bipartisan criminal justice legislation during an event at the White House on Wednesday, two sources close to the process said.

Trump is scheduled to announce on Wednesday that he is supporting the latest iteration of the First Step Act, a bill that his son-in-law and senior adviser, Jared Kushner, has been working to craft and build support for alongside a bipartisan group of senators, the sources said.  The President will be joined by supporters of the legislation during the White House event, the sources said.

Supporters of the measure expect that Trump's explicit backing will help propel the prison and sentencing overhaul bill through Congress.  The President has wavered on whether to throw his support behind the bill in recent months, but the sources said he was swayed to back the bill on Tuesday after meeting with Kushner.

Trump's support came after several law enforcement associations announced their backing for the legislation.  The National District Attorneys Association, which represents 2,500 district attorneys and 40,000 assistant district attorneys, became the latest law enforcement organization to support the bill, according to a letter the group's president addressed to Trump....

The prosecutors' association's support for the legislation came on the heels of backing from several other law enforcement organizations, including the Fraternal Order of Police, International Association of Chiefs of Police, Law Enforcement Leaders to Reduce Crime and Incarceration and the National Organization of Black Law Enforcement Executives, which also penned a letter of support to Trump.

The Major Cities Chiefs Association and Major County Sheriffs of America also withdrew their opposition to the legislation, writing in a letter to Kushner dated Tuesday that they "endorse the objectives of the First Step Act" and the legislation "strengthens how Federal prisoners may be integrated into the community and set on a path to live positive and productive lives."  Less than two weeks ago, the groups wrote to Kushner to say they could not back the bill.

Opposition from since-ousted Attorney General Jeff Sessions and Republican Sen. Tom Cotton of Arkansas, in particular, served as key stumbling blocks to advancing the legislation, with both touting opposition within law enforcement circles -- an argument that is quickly fading as groups back the proposal.  Sources close to the process said the support from law enforcement associations is key to advancing the measure and securing the President's full-throated support.

Proponents of the bill made several changes to it to win backing from law enforcement groups, including stiffer sentencing guidelines for fentanyl-related offenses and a compromise provision to modestly expand the definition of a serious violent crime.

Now the question is whether enough Democrats will rally to support the compromise package or hold out for a more ambitious overhaul of the nation's sentencing laws. Sen. Cory Booker of New Jersey, who had announced his opposition to a previous version of the bill because he felt it did not go far enough, said Tuesday that he is still looking to get more changes to the bill.

Though I am not going to count any sentencing reform chickens until they are hatched and have been signed into law, I am inclined to start predicting that we are on the verge of a remarkable federal criminal justice reform achievement that will be the most consequential statutory reform in nearly 35 years.  (I am also inclined to recall pieces from late 2016, like the one blogged here, that astutely suggested federal criminal justice reform might still be a real possibility in the Trump era.)  I am not quite yet ready to start patting a whole lot of folks on the back, but I am getting close to wanting to start celebrating the culmination of five years of very hard work by lots of folks inside and outside the Beltway.  Fingers crossed.

Some of many prior related posts:

• House Judiciary Committee approves FIRST STEP Act by a vote of 25-5 after lots of discussion of amendments
• FIRST STEP Act passes US House of Representatives by vote of 360-59(!), but its fate in Senate remains uncertain
• Interesting new US Sentencing Commission analysis of possible impact of Sentencing Reform and Corrections Act of 2017
• Prez Trump pledges to sign prison reform that will be "best in the world"
• Large group of former prisoners urge Senate leaders to move forward with FIRST STEP Act
• An interesting political pitch for the FIRST STEP Act 
• Encouraging news from DC about prospects for prison reform with sentencing reform getting enacted in 2018
• FAMM provides detailed review of SRCA sentencing provisions most likely to be added to FIRST STEP Act
• Senator Cotton delivers faulty arguments to prop up faulty federal sentencing system
• Could enhanced FIRST STEP Act get more than 90 votes in the Senate if ever brought up for a vote?
• Senate Majority Leader Mitch McConnell promises floor vote on FIRST STEP Act after midterm election if more than 60 Senators want to move forward
• Prez Trump reiterates support for prison reform and says AG Jeff Sessions "gets overruled by me"
• Could the FIRST STEP Act, with sentencing reforms added, get through Congress in just a matter of weeks?
• Latest push for passage of FIRST STEP Act with sentencing reforms now afoot

Senator Mike Lee makes the "conservative case for criminal justice reform"

Utah Senator Mike Lee has this new opinion piece at Fox News headlined "A conservative case for criminal justice reform." Here are excerpts:

“Government’s first duty,” President Reagan said in 1981 and President Trump recently tweeted, “is to protect the people, not run their lives.”  The safety of law-abiding citizens has always been a core principle of conservatism.  And it is why we need to take this opportunity to pass real criminal-justice reform now.

Although violent crime rose during the final two years of President Obama’s time in office, it decreased during the first year of Trump’s presidency.  We need to keep that momentum going. And criminal justice reform can help us do that in two ways.

First, commonsense sentencing reform can increase trust in the criminal-justice system, thus making it easier for law enforcement personnel to police communities.  Right now, federal mandatory-minimum sentences for many drug offenses can lead to outcomes that strike many people as unfair, and thus undermine the public’s faith in our justice system....

When the public sees judges handing out unfair punishments, it undermines trust in the entire justice system.  This makes it harder for police to do their job.  As Ronald Reagan explained when he was Governor of California, “[w]ithout respect for the law, the best laws cannot be effective.  Without respect for law enforcement, laws cannot be carried out.  We must have respect, not only for the law, but also for the many who dedicate their lives to the protection of society through enforcement of the law.”  Fairer sentencing laws will increase respect for police, especially in many communities where such respect is currently lacking.

Second, excessive prison sentences break apart families and weaken communities -- the building blocks of American civil society.  Incarceration is tough on any marriage.  Few can survive the loss of marital love and financial strain that happens when a spouse is behind bars.  And the longer the sentence, the more likely a marriage will end in divorce.  One 2011 study found that each additional year behind bars increases the likelihood of divorce by 32 percent.  This has real costs for the families -- and especially the children -- of offenders.

Incarceration is an essential law enforcement tool that protects communities and keeps families safe.  But it also inflicts costs on communities and families, and at some point the negative impact of incarceration on marriage and family can become too stark to ignore.  And for non-violent offenders, especially those with no prior criminal history, excessive sentences often do far more harm than good.

We now have a rare opportunity to pass criminal justice reform that will help restore trust in law enforcement and protect American families.  In May of this year, the House of Representatives passed the First Step Act, which includes some much-needed prison reform measures that would reduce recidivism.  Unfortunately, it did not include any reforms to address manifestly unjust sentences for non-violent offenders.

The Senate now has a chance to add some of those much-needed prison reform measures into the bill.  We won’t get everything we want, but we have an incredible opportunity to reach a compromise that includes meaningful, commonsense reforms to our nation’s mandatory-minimum drug sentencing laws.

It is unlikely we will get another opportunity to enact meaningful reform anytime soon.  President Obama failed to accomplish criminal-justice reform during his eight years in office.  But President Trump and the Republican Congress can get the job done now.  It would be another big step toward making America great again.

"Women’s Mass Incarceration: The Whole Pie 2018"

The Prison Policy Initiative has today posted an updated version of its remarkable incarceration "pie" graphic and associated report on the particulars of who and how women are incarcerated in the United States.  Here is part of the report's introductory text and subsequent discussion:

With growing public attention to the problem of mass incarceration, people want to know about women’s experience with incarceration.  How many women are held in prisons, jails, and other correctional facilities in the United States?  And why are they there?  How is their experience different from men’s?  While these are important questions, finding those answers requires not only disentangling the country’s decentralized and overlapping criminal justice systems, but also unearthing the frustratingly hard to find and often altogether missing data on gender.

This report provides a detailed view of the 219,000 women incarcerated in the United States, and how they fit into the even broader picture of correctional control.  This 2018 update to our inaugural Women’s Whole Pie report pulls together data from a number of government agencies and calculates the breakdown of women held by each correctional system by specific offense.  The report, produced in collaboration with the ACLU’s Campaign for Smart Justice, answers the questions of why and where women are locked up:

In stark contrast to the total incarcerated population, where the state prison systems hold twice as many people as are held in jails, incarcerated women are much more evenly split between state prisons and local jails.  This has serious consequences for incarcerated women and their families.

Women’s incarceration has grown at twice the pace of men’s incarceration in recent decades, and has disproportionately been located in local jails.  The explanation for exactly what happened, when, and why does not yet exist because the data on women has long been obscured by the larger scale of men’s incarceration....

Looking at the big picture shows that a staggering number of women who are incarcerated are not even convicted: a quarter of women who are behind bars have not yet had a trial.  Moreover, 60% of women under local control have not been convicted of a crime and are awaiting trial....

Avoiding pre-trial incarceration is uniquely challenging for women.  The number of unconvicted women stuck in jail is surely not because courts are considering women, who are generally the primary caregivers of children, to be a flight risk.  The far more likely answer is that incarcerated women, who have lower incomes than incarcerated men, have an even harder time affording cash bail.  When the typical bail amounts to a full year’s income for women, it’s no wonder that women are stuck in jail awaiting trial....

So what does it mean that large numbers of women are held in jail — for them, and for their families?  While stays in jail are generally shorter than in stays in prison, jails make it harder to stay in touch with family than prisons do.  Phone calls are more expensive, up to $1.50 per minute, and other forms of communication are more restricted — some jails don’t even allow real letters, limiting mail to postcards.  This is especially troubling given that 80% of women in jails are mothers, and most of them are primary caretakers of their children.  Thus children are particularly susceptible to the domino effect of burdens placed on incarcerated women....

Too often, the conversation about criminal justice reform starts and stops with the question of non-violent drug and property offenses.  While drug and property offenses make up more than half of the offenses for which women are incarcerated, the chart reveals that all offenses — including the violent offenses that account for roughly a quarter of all incarcerated women — must be considered in the effort to reduce the number of incarcerated women in this country. This new data on women underlines the need for reform discussions to focus not just on the easier choices but on the policy changes that will have the most impact....

Even the “Whole Pie” of incarceration above represents just one small portion (17%) of the women under correctional supervision, which includes over a million women on probation and parole.  Again, this is in stark contrast to the general incarcerated population (mostly men), where a third of all people under correctional control are in prisons and jails.

Some post-election criminal justice commentary from various sources a week later

It is a week after a consequential election, and in some places votes are still being counted. In addition, folks are still doing accountings of what the election (and its aftermath) meant and means for criminal justice reform efforts. Here is a sampling of pieces I have seen on this front from a variety of sources and authors:

From The Brennan Center, "The Big Winners in DA Races: Women and Black Candidates"

From The Brennan Center, "What Does Sessions' Departure Mean for Criminal Justice?"

From The Crime Report, "Post-Midterms Forecast for Justice Reform: Cloudy, But Encouraging"

From The Crime Report, "Are Americans Finally Turning Away From ‘Tough-on-Crime’ Era?"

From The Fix, "Drug Policy and Criminal Justice Reform at the 2018 Midterm Elections"

From The Hill, "The results are in: How the nation voted on criminal justice issues that impact our youth"

From Marijuana Moment, "What The Loss of Marijuana-Friendly Republicans Means For Federal Legalization"

From Marijuana Moment, "Marijuana Got More Votes Than These Politicians In The Midterms"

From The Marshall Project, "Voters Want Criminal Justice Reform. Are Politicians Listening?"

Usual Justices make their usual death penalty points in statements accompanying Florida capital case cert denials

In this post last week, I noted that the Supreme Court had relisted a slew of older Florida death penalty cases in which a death sentence had been imposed using procedures that the Supreme Court in the 2016 Hurst decision said violated the Sixth Amendment's requirement that a jury rather than a judge must find all facts necessary to sentence a defendant to death.  This morning, via this new order list, the Supreme Court appears to have denied cert in all of these Florida cases, and three Justices with well-earned reputations for having a lot to say in capital cases all had something to say about this decision through statements in the case of Reynolds v. Florida.

Justice Breyer authored a four-page statement regarding the denial of cert that sets the tone starting this way:

This case, along with 83 others in which the Court has denied certiorari in recent weeks, asks us to decide whether the Florida Supreme Court erred in its application of this Court’s decision in Hurst v. Florida, 577 U. S. ___ (2016).  In Hurst, this Court concluded that Florida’s death penalty scheme violated the Constitution because it required a judge rather than a jury to find the aggravating circumstances necessary to impose a death sentence.  The Florida Supreme Court now applies Hurst retroactively to capital defendants whose sentences became final after this Court’s earlier decision in Ring v. Arizona, 536 U. S. 584 (2002), which similarly held that the death penalty scheme of a different State, Arizona, violated the Constitution because it required a judge rather than a jury to find the aggravating circumstances necessary to impose a death sentence.  The Florida Supreme Court has declined, however, to apply Hurst retroactively to capital defendants whose sentences became final before Ring.  Hitchcock v. State, 226 So. 3d 216, 217 (2017).  As a result, capital defendants whose sentences became final before 2002 cannot prevail on a “Hurst-is-retroactive” claim.

Many of the Florida death penalty cases in which we have denied certiorari in recent weeks involve — directly or indirectly — three important issues regarding the death penalty as it is currently administered.

Folks who follow the Supreme Court's modern capital punishment discussions can probably guess what Justice Breyer considers the "three important issues" raised by these Florida cases. Similarly, SCOTUS followers likely can also imagine what Justice Thomas had to say when concurring in the denial of cert in Reynolds.  His opinion runs five pages and here are two key paragraphs:

JUSTICE BREYER worries that the jurors here “might not have made a ‘community-based judgment’ that a death sentence was ‘proper retribution’ had they known” of his concerns with the death penalty. Ante, at 4 (statement respecting denial of certiorari). In light of petitioner’s actions, I have no such worry, and I write separately to alleviate JUSTICE BREYER’s concerns....

JUSTICE BREYER’s final (and actual) concern is with the “‘death penalty itself.’” Ante, at 4. As I have elsewhere explained, “it is clear that the Eighth Amendment does not prohibit the death penalty.” Baze v. Rees, 553 U. S 35, 94 (2008) (opinion concurring in judgment); see Glossip, supra, at ___–___, and n. 1 (THOMAS, J., concurring) (slip op., at 1–2, and n. 1). The only thing “cruel and unusual” in this case was petitioner’s brutal murder of three innocent victims.

Last but certainly not least, Justice Sotomayor needs seven pages to explain why she dissents from the denial of certiorari, and here opinion starts this way:

Today, this Court denies the petitions of seven capital defendants, each of whom was sentenced to death under a capital sentencing scheme that this Court has since declared unconstitutional.  The Florida Supreme Court has left the petitioners’ death sentences undisturbed, reasoning that any sentencing error in their cases was harmless.  Petitioners challenge the Florida Supreme Court’s analysis because it treats the fact of unanimous jury recommendations in their cases as highly significant, or legally dispositive, even though those juries were told repeatedly that their verdicts were merely advisory.  I have dissented before from this Court’s failure to intervene on this issue.  Petitioners’ constitutional claim is substantial and affects numerous capital defendants.  The consequence of error in these cases is too severe to leave petitioners’ challenges unanswered, and I therefore would grant the petitions.

Latest push for passage of FIRST STEP Act with sentencing reforms now afoot

The New York Times and CNN are reporting this evening on the latest chapter in efforts to enact significant federal criminal justice reforms.  This lengthy New York Times piece is headlined "Bipartisan Sentencing Overhaul Moves Forward, but Rests on Trump," and here are excerpts:

A bipartisan group of senators has reached a tentative deal on the most substantial rewrite of the nation’s sentencing and prison laws in a generation, giving judges more latitude to sidestep mandatory minimum sentences and easing drug sentences that have incarcerated African-Americans at much higher rates than white offenders.  The lawmakers believe they can get the measure to President Trump during the final weeks of the year, if the president embraces it.

The compromise would eliminate the so-called stacking regulation that makes it a federal crime to possess a firearm while committing another crime, like a drug offense; expand the “drug safety valve” allowing judges to sidestep mandatory minimums for nonviolent drug offenders; and shorten mandatory minimum sentences for nonviolent drug offenders, according to draft text of the bill obtained by The New York Times.

It would also retroactively extend a reduction in the sentencing disparity between crack and powder cocaine signed into law in 2010, potentially affecting thousands of drug offenders serving lengthy sentences....

The support of the famously mercurial Mr. Trump is by no means guaranteed.  But if they can secure an endorsement, senators say they can move quickly on the kind of bipartisan achievement that has eluded Mr. Trump — and bedeviled senators and outside advocates of the overhaul for years....

If Mr. Trump supports the package, senators will still be up against a rapidly closing legislative window — Congress is set to break in mid-December — and certain opposition from conservative Republicans in both the Senate and the House. Democrats could also throw up roadblocks if liberals think they could get a better deal once Democrats take control of the House....

Lawmakers may have also gotten a boost with the departure of Jeff Sessions as attorney general last week. Mr. Sessions had used his post to order federal prosecutors to pursue the toughest possible charges and sentences for crime suspects, reversing Obama-era efforts to ease such penalties for some nonviolent drug offenders.  And he vigorously opposed legislative compromise, going head-to-head not only with Mr. Grassley but also with Mr. Kushner.

Mr. Kushner has had several meetings with Matthew G. Whitaker, the new acting attorney general, who has signaled that he is open to the changes.  The effort could be revived in the next Congress if he and allies are unable to succeed in the short term. Mr. Kushner has also traveled with Vice President Mike Pence in recent days to brief the vice president on the latest developments, the administration official said.

This CNN report is headlined "Senators, Kushner prepare to launch sentencing overhaul push in lame duck session," and starts and ends this way:

White House officials and a bipartisan group of senators are mounting an ambitious effort to push criminal justice legislation through Congress by the end of the year, four sources close to the process told CNN.

But first, Jared Kushner, President Donald Trump's son-in-law and senior adviser, who has been leading the White House's prison and sentencing overhaul push, must ensure the President is on board with the latest version of the measure.  Kushner is slated to meet with Trump on Tuesday to press him to back the legislation, a senior administration official said....

One person close to the matter said that while the prospects for the measure several weeks ago seemed glum, its odds of passing now are above 50%.  The White House and Republican leaders on Capitol Hill agreed in August to postpone the legislation until after the midterm elections.

One source close to the process said that after the midterms -- which will bring shifting partisan dynamics to Congress in January -- White House officials working on the effort recognized they needed to move forward now.  "It's the lame duck or never strategy," one source close to the process said.

"The Effects of Holistic Defense on Criminal Justice Outcomes"

The title of this post is the title of anew article which I learned about via this Penn Law press release.  Here is the start of the release, providing a link to the article:

A groundbreaking new study by researchers at RAND and the University of Pennsylvania Law School finds that by adopting an innovative holistic approach to defending poor clients in criminal cases, jurisdictions can significantly reduce incarceration and save taxpayer dollars, without harming public safety.

The study, “The Effects of Holistic Defense on Criminal Justice Outcomes,” to be published in the Harvard Law Review, examined over half a million cases in the Bronx over a 10-year period involving poor criminal defendants who received court-appointed lawyers.  The study was authored by James Anderson and Mary Buenaventura of RAND, and Paul Heaton, Academic Director of Quattrone Center for the Fair Administration of Justice at Penn Law.

Heaton and his co-authors compared holistic representation — wherein an interdisciplinary team that includes a lawyer working alongside other advocates such as a social worker, housing advocate, investigator, etc. addresses the wider needs of the client enmeshed in the criminal justice system — to the more traditional public defense model focused around criminal attorneys and criminal case advocacy.  They found that the holistic approach reduced the likelihood of a prison sentence by 16 percent, and actual prison sentence length by 24 percent.

Here is the article's abstract:

Debates over mass incarceration emphasize policing, bail, and sentencing reform, but give little attention to indigent defense.  This omission seems surprising, given that interactions with government-provided counsel critically shape the experience of the vast majority of criminal defendants.  This neglect in part reflects our lack of evidence-based knowledge regarding indigent defense, making it difficult to identify effective reforms.

One newer model gaining support is the holistic defense model, in which public defenders work in interdisciplinary teams to address both the immediate case and the underlying life circumstances — such as drug addiction, mental illness, or family or housing instability — that contribute to client contact with the criminal justice system.  This holistic model contrasts with the traditional public defense model which emphasizes criminal representation and courtroom advocacy. Proponents contend holistic defense improves case outcomes and reduces recidivism by better addressing clients’ underlying needs, while critics argue that diverting resources and attention from criminal advocacy weakens results.  Although widely embraced, there is no systematic evidence demonstrating the relative merits of the holistic approach.

This Article offers the first large-scale, rigorous evaluation of the impact of holistic representation on criminal justice outcomes.  In the Bronx, a holistic defense provider (the Bronx Defenders) and a traditional defender (the Legal Aid Society) operate side-by-side within the same court system, with case assignment determined quasi-randomly based on court shift timing.  Using administrative data covering over half a million cases and a quasi-experimental research design, we estimate the causal effect of holistic representation on case outcomes and future offending.  Holistic representation does not affect conviction rates, but it reduces the likelihood of a custodial sentence by 16% and expected sentence length by 24%.  Over the ten-year study period, holistic representation in the Bronx resulted in nearly 1.1 million fewer days of custodial punishment.

As of one year post-arraignment and beyond, holistic representation has neither a positive or adverse effect on criminal justice contacts.  While holistic representation does not dramatically reduce recidivism, as some proponents have claimed, strengthening indigent defense apparently offers considerable potential to reduce incarceration without harming public safety.  Indigent defense thus deserves a more prominent place in conversations about how to address mass incarceration, and future research should examine the effects of this promising model beyond the criminal justice system and in other jurisdictions.

More encouraging clemency news in Oklahoma in wake of 2016 sentencing reform ballot initiative

In this post a few month ago, I noted the important work of lawyers and law students in seeking commutations for dozens of Oklahoma inmates in the aftermath of the state's passage of Question 780, which  made nonviolent drug possession offenses and low-level property offenses misdemeanors instead of felonies.  A helpful reader alerted me to notable additional news on this front reported in this two local articles:

"Board recommends clemency for 22 drug possession offenders." Excerpts:

Nearly two dozen offenders were recommended for clemency Wednesday, the first wave of hopefuls for early release from lengthy felony prison sentences for simple drug possession two years after voters approved turning that crime into a misdemeanor. State Question 780 isn’t retroactive, so Project Commutation sought deserving prisoners who were considered ideal candidates to have their sentences drastically shortened in line with the sentencing reform measure.

Kris Steele, chairman of Oklahomans for Criminal Justice Reform, is spearheading the movement and a member of the board voting on the commutation requests. Steele said a governor’s staff member was present for Wednesday’s all-day proceedings and expressed to him that Gov. Mary Fallin is committed to signing off on the cases before the new year.

The commutations modify sentences but don’t erase convictions. Fallin has final authority to approve, deny or modify the Oklahoma Pardon and Parole Board’s recommendations within 90 days. “Gov. Fallin has been monitoring these cases closely and has taken an interest in trying to expedite the process of the governor’s approval, with the intent, as I understand it, to get these individuals home together with their families by the end of the year,” Steele said.

Twenty-three offenders had their cases for commutations heard Wednesday by the five-member pardon and parole board. Only one offender failed to garner a simple majority vote, with concerns about misconduct in prison perhaps influencing decisions. Oklahomans for Criminal Justice Reform launched Project Commutation in partnership with the Tulsa County Public Defender’s Office. Another eight applicants — the final ones in this commutation campaign — will be on the docket in December.

Starting July 1, 2017, State Question 780 made nonviolent drug possession offenses and low-level property offenses misdemeanors instead of felonies. The maximum sentence for simple drug possession now is one year in jail.  Sentences considered Wednesday were for between 10 years and 40 years long, with time served from five months to nearly three years.  “Twenty-two of 23 of the people that we helped with applications were mothers in prison serving decades had they not gone through this process,” said Corbin Brewster, Tulsa County chief public defender.  “The impact beyond the incarceration on their families is just enormous.”...

University of Tulsa law students helped to interview and whittle down a field of 700 applicants to 49 for the first stage of the commutation process. There are 31 who made it through to the second and final stage before the governor’s desk.

"Oklahoma group wants to build on success of commutation project for prisoners with drug possession charges." Excerpts:

During commutation hearings last week, offenders offered numerous reasons for why they were unable to succeed in alternative drug courts. Failing stuck them with lengthy prison sentences for possessing drugs.

Project Commutation has been an opportunity for a handful of convicts to earn another shot at a new life, advocating for clemency after State Question 780 turned simple drug possession into a misdemeanor rather than a felony.  But Oklahomans for Criminal Justice Reform wants more — the advocacy group intends to encourage lawmakers in the upcoming legislative session to apply the law retroactively.

“The Legislature will kick off in early February, and we are urging them to look at these sentences,” said Danielle Ezell, an OCJR board member, as she stood outside the correctional center where the commutation hearings took place Wednesday. “There’s over 1,000 folks in for simple drug possession that, if charged today, would not be incarcerated. And we would like to see those charges (retroactively addressed).”

Prior related posts:

• Interesting account of effort to take sentencing reform directly to voters in Oklahoma
• In Oklahoma, ballot initiative on death penalty wins big and sentencing reform initiatives also win
• Interesting commutation developments in wake of initiative reform in Oklahoma

"US Criminal Justice Policy and Practice in the Twenty‐First Century: Toward the End of Mass Incarceration?"

The title of this post is the title of this new paper now available via SSRN and authored by Katherine Beckett, Lindsey Beach, Emily Knaphus and Anna Reosti.  Here is its abstract:

Although the wisdom of mass incarceration is now widely questioned, incarceration rates have fallen far less than what would be predicted on the basis of crime trends.  Informed by institutional studies of path dependence, sociolegal scholarship on legal discretion, and research suggesting that “late mass incarceration” is characterized by a moderated response to nonviolent crime but even stronger penalties for violent offenses, this article analyzes recent sentencing‐related reforms and case processing outcomes.  Although the legislative findings reveal widespread willingness to moderate penalties for nonviolent crimes, the results also reveal a notably heightened system response to both violent and nonviolent crimes at the level of case processing.

These findings help explain why the decline in incarceration rates has been notably smaller than the drop in crime rates and are consistent with the literature on path dependence, which emphasizes that massive institutional developments enhance the capacity and motivation of institutional actors to preserve jobs, resources, and authorities.  The findings also underscore the importance of analyzing on‐the‐ground case processing outcomes as well as formal law when assessing the state and fate of complex institutional developments such as mass incarceration.

How about a few clemency grants, Prez Trump, to really honor vets in need on Veterans Day?

Five years ago in this post, I noted that on Veterans Day I often find myself thinking about veterans who, after serving our country in the military and thereby supporting of our nation's commitment to liberty and freedom, return home and discover the hard way that these constitutional values are not always paramount in our modern criminal justice systems.  This 2015 report on "Veterans in Prison and Jail, 2011–12" found that in "2011–12, an estimated 181,500 veterans (8% of all inmates in state and federal prison and local jail excluding military-operated facilities) were serving time in correctional facilities."

In my Veterans Day 2013 post, I asked "How about a few clemency grants, Prez Obama, to really honor vets in need on Veterans Day?".  Five years later, especially after Prez Trump talked up possibly granting thousands of clemencies earlier this year, it seems fitting to pose the same question to Prez Obama's successor.  It also seems worthwhile to link to posts from the summer and thereafter highlights reports and comments by Prez Trump which generated lots of clemency optimism on which he has yet to deliver.

A few of many recent related posts: 

• Kimme’s accomplishment: Prez Trump commutes LWOP sentence of Alice Johnson!!
• Prez Trump reportedly "obsessed" with pardons and "may sign a dozen or more in the next two months"
• Prez Trump now says he is looking at "3,000 names" for possible clemency and will seek more 
• Another notable report on clemency suggesting Prez Trump will be "pardoning a lot of people — pardons that even Obama wouldn’t do"
• Will Prez Trump deliver on all the clemency "tidal wave" of hopefulness he has engendered?
• Can Kanye West help jump-start now dormant clemency and criminal justice reform activity in White House?

Fraternal Order of Police now supporting FIRST STEP Act with some sentencing reform provisions

Roughly nine months ago, the President of the Fraternal Order of Police (FOP) wrote this three-page letter to the President of the United States expressing opposition to the Sentencing Reform and Corrections Act.  But yesterday, in what seems to me to be a important and encouraging development, the FOP released this one-page statement headed "FOP Partners with President Trump on Criminal Justice Reform."

The new FOP release should be read in full, as it indicates support for adding modest sentencing reforms to the FIRST STEP Act bill that was passed by the House earlier this year.  In addition, the sub-heading of the press release says "Revised and amended First Step Act to be introduced next week." This strongly suggests that "Beltway insiders" are prepared and planning to try to get big federal statutory sentencing reform done in a matter of weeks.

"Farewell to the Felonry"

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

Bastard.  Idiot.  Imbecile.  Pauper.  Felon.  These terms, medieval in origin, have served as formal legal designations and also the brands of substantial social stigma.  As legal designations, the terms marked persons for different sorts of membership in a political community.  The rights and privileges of these persons could be restricted or denied altogether. Today, most of these terms have been abandoned as labels for official classifications.  But the terms felon and felony remain central to American criminal law, even after other developed democracies have formally abolished the felon/felony category.  “Felony” has connotations of extreme wickedness and an especially severe crime, but the official legal meaning of felony is a pure legal construct: any crime punishable by more than a year in prison.  So many and such disparate crimes are now felonies that there is no unifying principle to justify the classification.  And yet, the designation of a crime as a felony, or of a person as a felon, still carries great significance.  Even beyond the well-documented “collateral” consequences of a felony conviction, the classification of persons as felons is central to the mechanics of mass incarceration and to inequality both in and out of the criminal justice system.  American law provides the felonry —the group of persons convicted of felonies — a form of subordinate political membership that contrasts with the rights and privileges of the full-fledged citizenry.

The felon should go the way of the bastard, into the dustbins of legal history.  If that outcome seems unlikely, it is worth asking why a category long known to be incoherent should be so difficult to remove from the law.  This Article examines felony in order to scrutinize more broadly the conceptual structure of criminal law.  Criminal laws, and even their most common critiques and arguments for reform, often appeal to the same naturalistic understanding of crime and punishment that gives felon its social meaning.  When we imagine crime as a natural, pre-legal wrong and the criminal as intrinsically deserving of suffering, we displace responsibility for the law’s burdens from the community that enacts the law and the officials that enforce it.  To bid farewell to the felonry could be a first step toward reclaiming responsibility for our criminal law.

Michelle Alexander frets about "The Newest Jim Crow"

Michelle Alexander has this notable new New York Times opinion piece headlined ""The Newest Jim Crow: Recent criminal justice reforms contain the seeds of a frightening system of 'e-carceration'." I recommend the piece in full, and here are excerpts:

Since 2010, when I published “The New Jim Crow” — which argued that a system of legal discrimination and segregation had been born again in this country because of the war on drugs and mass incarceration — there have been significant changes to drug policy, sentencing and re-entry, including “ban the box” initiatives aimed at eliminating barriers to employment for formerly incarcerated people.

This progress is unquestionably good news, but there are warning signs blinking brightly. Many of the current reform efforts contain the seeds of the next generation of racial and social control, a system of “e-carceration” that may prove more dangerous and more difficult to challenge than the one we hope to leave behind.

Bail reform is a case in point.  Thanks in part to new laws and policies — as well as actions like the mass bailout of inmates in New York City jails that’s underway — the unconscionable practice of cash bail is finally coming to an end. In August, California became the first state to decide to get rid of its cash bail system; last year, New Jersey virtually eliminated the use of money bonds.

But what’s taking the place of cash bail may prove even worse in the long run. In California, a presumption of detention will effectively replace eligibility for immediate release when the new law takes effect in October 2019.  And increasingly, computer algorithms are helping to determine who should be caged and who should be set “free.”  Freedom — even when it’s granted, it turns out — isn’t really free.

Under new policies in California, New Jersey, New York and beyond, “risk assessment” algorithms recommend to judges whether a person who’s been arrested should be released. These advanced mathematical models — or “weapons of math destruction” as data scientist Cathy O’Neil calls them — appear colorblind on the surface but they are based on factors that are not only highly correlated with race and class, but are also significantly influenced by pervasive bias in the criminal justice system.  As O’Neil explains, “It’s tempting to believe that computers will be neutral and objective, but algorithms are nothing more than opinions embedded in mathematics.”

Challenging these biased algorithms may be more difficult than challenging discrimination by the police, prosecutors and judges. Many algorithms are fiercely guarded corporate secrets.  Those that are transparent — you can actually read the code — lack a public audit so it’s impossible to know how much more often they fail for people of color.

Even if you’re lucky enough to be set “free” from a brick-and-mortar jail thanks to a computer algorithm, an expensive monitoring device likely will be shackled to your ankle — a GPS tracking device provided by a private company that may charge you around $300 per month, an involuntary leasing fee.  Your permitted zones of movement may make it difficult or impossible to get or keep a job, attend school, care for your kids or visit family members. You’re effectively sentenced to an open-air digital prison, one that may not extend beyond your house, your block or your neighborhood.  One false step (or one malfunction of the GPS tracking device) will bring cops to your front door, your workplace, or wherever they find you and snatch you right back to jail.

Who benefits from this?  Private corporations.  According to a report released last month by the Center for Media Justice, four large corporations — including the GEO Group, one of the largest private prison companies — have most of the private contracts to provide electronic monitoring for people on parole in some 30 states, giving them a combined annual revenue of more than $200 million just for e-monitoring.  Companies that earned millions on contracts to run or serve prisons have, in an era of prison restructuring, begun to shift their business model to add electronic surveillance and monitoring of the same population.  Even if old-fashioned prisons fade away, the profit margins of these companies will widen so long as growing numbers of people find themselves subject to perpetual criminalization, surveillance, monitoring and control....

Many reformers rightly point out that an ankle bracelet is preferable to a prison cell.  Yet I find it difficult to call this progress.  As I see it, digital prisons are to mass incarceration what Jim Crow was to slavery.

If you asked slaves if they would rather live with their families and raise their own children, albeit subject to “whites only signs,” legal discrimination and Jim Crow segregation, they’d almost certainly say: I’ll take Jim Crow.  By the same token, if you ask prisoners whether they’d rather live with their families and raise their children, albeit with nearly constant digital surveillance and monitoring, they’d almost certainly say: I’ll take the electronic monitor.  I would too.  But hopefully we can now see that Jim Crow was a less restrictive form of racial and social control, not a real alternative to racial caste systems.  Similarly, if the goal is to end mass incarceration and mass criminalization, digital prisons are not an answer. They’re just another way of posing the question.

Some insist that e-carceration is “a step in the right direction.”  But where are we going with this? A growing number of scholars and activists predict that “e-gentrification” is where we’re headed as entire communities become trapped in digital prisons that keep them locked out of neighborhoods where jobs and opportunity can be found.

If that scenario sounds far-fetched, keep in mind that mass incarceration itself was unimaginable just 40 years ago and that it was born partly out of well-intentioned reforms — chief among them mandatory sentencing laws that liberal proponents predicted would reduce racial disparities in sentencing.  While those laws may have looked good on paper, they were passed within a political climate that was overwhelmingly hostile and punitive toward poor people and people of color, resulting in a prison-building boom, an increase in racial and class disparities in sentencing, and a quintupling of the incarcerated population.

Despite Issue 1's overwhelming defeat, Ohio leaders still talking optimistically about state criminal justice reforms

I have been worried that this week's overwhelming defeat of the interesting and intricate drug sentencing and prison reform initiative on the November 2018 ballot in Ohio, known as Issue 1, could mean that long-stalled major reform efforts in Ohio would remain stalled.  But this local article, headlined "After Issue 1 fails, state leaders vow to take up criminal justice reform," provides an encouraging outlook on the prospects of reform in the Buckeye state through the usual legislative channels. Here are excerpts:

After voters statewide rejected Issue 1 this week, state lawmakers are ready to move forward on criminal justice reforms, legislative leaders said Thursday.

Ohio’s “big three” political leaders — Senate President Larry Obhof, House Speaker Ryan Smith, and Gov.-elect Mike DeWine — each applauded the failure of State Issue 1, a proposed constitutional amendment that would have changed criminal sentences. Voters rejected it 36.6 percent to 63.4 percent, according to unofficial results. Judges and elected Republicans largely opposed Issue 1, saying it was a flawed proposal that didn’t belong in the Ohio Constitution.

Obhof, R-Medina, said Thursday he will introduce a bill in the upcoming weeks that calls for reducing low-level drug felony offenses to misdemeanors; install a presumption for probation over prison if the offender agrees to drug treatment; allow people currently incarcerated for certain drug crimes to petition the court to be re-sentenced.

The bill will be based on a proposal developed by Franklin County Prosecutor Ron O’Brien, a Republican, and Columbus City Attorney Zach Klein, a Democrat. The two ran against one another in 2016.

Obhof wants to take quick action on the bill, before Gov. John Kasich leaves office and the current legislative session ends. However, if it doesn’t get through by the end of the year, he plans to bring it back next year.

DeWine said criminal justice reform would be a priority for his administration, which starts in January, but he did not provide details of how that might take shape.

For the past year, policy leaders have been doing a deep dive into Ohio’s interconnected criminal justice issues: prison overcrowding, the opiate crisis, mental health treatment, falling crime rates, rising murder and assault rates, recidivism rates and more. A final report will make recommendations for lawmakers to consider in 2019.

Nearly 60 percent of all felony sentences in Ohio are for drug and property crimes, according to the Council of State Governments analysis of Ohio Bureau of Criminal Investigation and Identification data.

And while Ohio’s recidivism rate — those returning to prison within three years of release — is lower than the national rate, it crept up 1.5 percentage points to 30.73 percent, according to the Ohio Department of Rehabilitation and Correction. “That concerns me but it’s good that we’re still substantially better than the national average. I still think that our prison population is too high,” Obhof said.

"The Death Penalty as Incapacitation"

The title of this post is the title of this new paper available via SSRN authored by Marah Stith McLeod.  Here is its abstract:

Courts and commentators give scant attention to the incapacitation rationale for capital punishment, focusing instead on retribution and deterrence.  The idea that execution may be justified to prevent further violence by dangerous prisoners is often ignored in death penalty commentary.  The view on the ground could not be more different.  Hundreds of executions have been premised on the need to protect society from dangerous offenders.  Two states require a finding of future dangerousness for any death sentence, and over a dozen others treat it as an aggravating factor that turns murder into a capital crime.

How can courts and commentators pay so little heed to this driving force behind executions? The answer lies in two assumptions: first, that solitary confinement and life without parole also incapacitate, and second, that prediction error makes executions based on future risk inherently arbitrary.  Yet solitary confinement and life without parole entail new harms — either torturous isolation or inadequate restraint. Meanwhile, the problem of prediction error, while significant, can be greatly reduced by reevaluating future dangerousness over time.

This Article illuminates the remarkable history, influence, and normative import of the incapacitation rationale, and shows how serious engagement with the incapacitation rationale can lead to practical reforms that would make the death penalty more fair.  It concludes by highlighting several of the most promising reforms.

Interesting talk of prison reform amidst talk of Chris Christie as possible Attorney General replacement

This new CNN article includes lots of interest for federal criminal justice reform fans under the headline "Trump considering Christie, Bondi for attorney general." Here are excerpts:

President Donald Trump is considering former New Jersey Gov. Chris Christie and Florida Attorney General Pam Bondi to replace fired Attorney General Jeff Sessions, sources familiar with the matter said.

Trump fired Sessions on Wednesday without immediately naming a replacement, instead installing Sessions' chief of staff Matthew Whitaker as acting attorney general. Both Christie and Bondi are longtime political allies of the President's and were initially considered contenders for the Justice Department perch during the transition.

Given Trump's longstanding frustrations with Sessions, other potential contenders have cropped up in Trump-friendly circles in recent months, including Whitaker, Solicitor General Noel Francisco, Rep. John Ratcliffe, R-Texas, former Judge John Michael Luttig, Judge Edith Jones, former Judge Janice Rogers Brown, retiring Rep. Trey Gowdy, R-South Carolina and Sen. Lindsey Graham, R-South Carolina.

If nominated, Christie, a former US attorney, could face similar calls to the ones Sessions faced to recuse himself from special counsel Robert Mueller's investigation given his role as a prominent 2016 campaign surrogate for Trump. But unlike Sessions, there is no indication he had contacts with Russian officials during the 2016 campaign or transition.

Christie attended a previously scheduled law enforcement roundtable on prison reform efforts at the White House on Thursday morning, an administration official and source familiar with the meeting said.

Christie then met privately with the President's son-in-law and senior adviser Jared Kushner to further discuss prison reform issues, an administration official who works on the prison reform effort said.

Kushner and Christie have long been reported to have bad blood stemming from Christie's role as US attorney in prosecuting Kushner's father on 18 counts of tax evasion, witness tampering and illegal campaign donations.

But the administration official said Kushner and Christie have a good relationship. "They've been working really closely on this for months," the administration official said. "Despite the fact that people have suggested otherwise, the two have a really close and good working relationship, particularly as it relates to prison reform."...

Prison reform has been a key agenda item for Kushner and Christie would likely be an important ally in that effort were he to be tapped for attorney general.

While Christie has been a friend of Trump's since before the 2016 campaign, the former New Jersey governor has been critical of Trump's handling of the Mueller investigation and instead praised Mueller amid the President's public criticism of the special counsel. "I've told him (Trump) many times that there's no way to make an investigation like this shorter, but there's lots of ways to make it longer, and he's executed on a number of those ways to make it longer," Christie said in May at the University of Chicago, while calling Mueller "an honest ... hard-working guy."

Christie has also rejected arguments by Trump's personal legal team that the President cannot obstruct justice, calling it "an outrageous claim" on ABC this summer.

Brennan Center wasting no time advocating for sentencing reforms after election and ouster of AG Jeff Sessions

The folks over at the Brennan Center already have two short pieces up making the case for Congress to move forward with federal sentencing reforms and for the Senate Judiciary Committee to seek to ensure the next Attorney General cares about criminal justice reform.  Here are links to the pieces with some excerpts:

"Sentencing Reform Should Be a Top Post-Election Priority for Congress" 

As Congress prepares to enter a lame-duck session following yesterday’s midterm elections, it has a rare opportunity to pass bipartisan legislation that will help reform our criminal justice system and end mass incarceration. And sentencing reform must be included in any meaningful effort to reduce the number of people entering the federal prison system....

Criminal justice reform is a rare point of bipartisan consensus in today’s polarized climate. In fact, 71 percent of Americans surveyed – including a majority of Trump voters – agree that it’s important to reduce the country’s prison population. And there’s substantial support from key members of Congress – both Republican and Democrat – for comprehensive reform. In fact, Senate Majority Leader Mitch McConnell has signaled he would call a vote after the midterm election if more than 60 senators support the bill.

With that momentum, one of Congress’s first agenda items for this year’s “lame-duck” session should be to pass legislation that will help reduce mass incarceration. And any successful effort will start with sentencing reform.

"With Sessions Gone, the GOP Can Show It Cares About Criminal Justice Reform"

Sen. Chuck Grassley (R-Iowa) is a reliable and trusted ally for criminal justice reform advocates, both right and left.  So when President Trump nominated Jeff Sessions to lead the Justice Department, it came as something of a surprise that Grassley, as chair of the Senate Judiciary Committee, cleared the deck for him, ensuring a quick and easy Senate confirmation.

If Grassley later came to regret that — and there’s reason to believe he did — today offers a chance to correct it.  Against the backdrop of our looming, slow-burning constitutional crisis, Grassley can and should make support for criminal justice reform a litmus test for the next attorney general.  He has that power.  Now is the time to use it....

[I]f Trump is serious about criminal justice reform, he should simply refuse to nominate someone who doesn’t support sentencing reform.  And whether or not he follows through, Grassley should refuse to confirm anyone who will oppose or sabotage similar reform efforts.

Realistically, though, the best chance for guaranteeing a supportive attorney general rests with Grassley and other supporters of criminal justice reform on the Judiciary Committee, like Mike Lee (R-Utah), Dick Durbin (D-Ill.), and even, sometimes, Lindsey Graham (R-S.C.).  By demanding an attorney general who will back their words with action — and faithfully implement rather than sabotage any reform package they pass — Grassley and his committee could effect a major reset, giving the country a chance to move on from at least one aspect of the last two years.

SCOTUS relisting packet of cases dealing with application of Hurst v. Florida to past cases

It has been (too?) many months since I have had occasion to talk about what I have long called the "post-Hurst hydra."  As regular readers may be pained to recall, I coined the term term "post-Hurst hydra" to describe the multi-headed, snake-like litigation that developed in various ways in various courts as state and federal judges tried to make sense of just what the Supreme Court's January 2016 decision in Hurst v. Florida, which declared Florida's death penalty procedures violative of the Sixth Amendment, must mean for past, present and future capital cases.  But the "post-Hurst hydra" is on my mind this morning because of the latest "Rewatch List" from John Elwood at SCOTUSblog, which includes these two paragraphs (with links from the original):

Once again, we have a group of seven relisted cases all presenting the same issue and all involving the same respondent.  Each of the seven involves a Florida man convicted of capital murder and sentenced to the death penalty.  The issue should be familiar to Relist Watch readers. In Hurst v. Florida, the Supreme Court held 8-1 in an opinion by Sotomayor that Florida’s capital-sentencing scheme — under which a jury rendered an “advisory sentence” but a judge had to independently weigh the aggravating and mitigating factors before entering a sentence of life or death — violated the Sixth Amendment’s requirement that a jury rather than a judge must find all facts necessary to sentence a defendant to death.  The Florida Supreme Court later held that Hurst error was harmless because juries had to unanimously find beyond a reasonable doubt all the elements necessary to support imposition of the death penalty.  But since that time, challenger after challenger has argued that the Florida Supreme Court’s harmless-error conclusion cannot be squared with Caldwell v. Mississippi, which held that it is constitutionally impermissible to rest a death sentence on a determination made by a jury that has been led to believe that the responsibility for determining the appropriateness of the death sentence rests with someone else. This issue has yielded multiple dissents from denial of cert, in Truehill v. Florida (Sotomayor dissenting, joined by Justices Ruth Bader Ginsburg and Stephen Breyer; Breyer also dissented separately), Middleton v. Florida (identical lineup), Guardado v. Florida (Sotomayor dissenting alone), and Kaczmar v. Florida (Sotomayor dissenting alone).

Now we have seven more such cases — including one that was the subject of a previous dissent: Guardado v. Florida, 17-9284, Philmore v. Florida, 17-9556, Tanzi v. Florida, 18-5160, Reynolds v. Florida, 18-5181, Franklin v. Florida, 18-5228, Grim v. Florida, 18-5518, and Johnston v. Florida, 18-5793.  The arrival of seven cases at once presents Sotomayor with her best opportunity yet to make the case that the issue is a recurring and important one. The big question now is whether Justice Elena Kagan (or some other justice) is now ready to provide a fourth vote to grant — or whether Sotomayor will be filing yet another dissent from denial on this issue.  And to get into the weeds a bit, these cases provide yet another example of what a good job the Supreme Court and its staff do of tracking related cases on the court’s crowded docket.

Jeff Sessions is no longer Attorney General of the United States

In a development that bodes well for federal criminal justice reform and marijuana reform, Attorney General Jeff Sessions has submitted his resignation in letter to President Donald Trump. Prez Trump has two tweets in response:

We are pleased to announce that Matthew G. Whitaker, Chief of Staff to Attorney General Jeff Sessions at the Department of Justice, will become our new Acting Attorney General of the United States. He will serve our Country well....

....We thank Attorney General Jeff Sessions for his service, and wish him well! A permanent replacement will be nominated at a later date.

UPDATE: This Fox News piece includes the former Attorney General's resignation letter and details about how this came to pass:

Sources told Fox News that Trump did not call Sessions, but rather White House Chief of Staff John Kelly informed him of the president’s request for him to resign.  Sessions is expected to leave the Justice Department by the end of the day and Whitaker is expected to be sworn in Wednesday.

In his resignation letter, Sessions said was “honored to serve” as attorney general and said his Justice Department “restored and upheld the rule of law -- a glorious tradition that each of us has a responsibility to safeguard.”

Method matters: initial thoughts about Issue 1's big loss in Ohio

Regular readers know I had been following closely the debate over the interesting and intricate drug sentencing and prison reform initiative on the November 2018 ballot in Ohio known as Issue 1.  A variety of factors had led me to expect that Issue 1 would lose, but surprisingly strong polling and all the "blue wave" talk had me thinking it might have a shot.   I certainly did not expect that it would get crushed, going down to defeat 63.5% to 36.5%. 

Issue 1's huge 27%-point loss is startling given that Ohio's Democratic Senator Sherrod Brown won re-election by 6% points and its Democratic Governor candidate Richard Cordray, who endorsed Issue 1, lost by only 4% points.  This means that a huge number of progressively minded voters decided to vote for liberal candidates and against Issue 1.  (A county-level analysis highlights this reality in various ways: e.g., in Lucas County (where Toledo is located), Senator Brown prevailed by 33% points, but Issue 1 still lost that county by 4% points.)

Issue 1's huge 27%-point loss is even more startling given that a somewhat similar ballot initiative in 2016 passed in Oklahoma with flying colors, winning by 16% points with a margin of 58% to 42%.  Given that Oklahoma is a seemingly much "redder" state than Ohio and that 2016 was seemingly a somewhat "redder" election than 2018, the 43% difference in outcomes in these initiatives leads me to the (obvious?) conclusion that just how a criminal justice reform is pursued through a ballot initiative can make a VERY big difference.

Of particular significance, it seems, is both the form of the initiative and who is part of the reform team.  In Oklahoma, the 2016 initiative sought a fairly modest statutory change; in Ohio, the 2018 initiative pursued a fairly aggressive set of reforms that would be locked into the state constitution.  Perhaps even more importantly, legislative "insiders" and other state GOP leaders were integrally involved in drafting and getting the Oklahoma initiative on the ballot in 2016.  The same type of insiders seemingly had no role in the Ohio campaign, and thus nearly all of them -- most notably, all the GOP candidates and many prominent judges, prosecutors and police -- actively campaigned against Issue 1.

I am hopeful state-level reformers in Ohio and elsewhere will continue to see the potential that direct democracy provides.  But reformer can and should learn from losses as well as victories, and there seems to be a lot to learn after a big loss in Ohio.