Sentencing Law and Policy

"The policy lessons learned from the criminal justice system response to COVID-19"

The title of this post is the title of this notable new essay authored by Alex Piquero just published by Criminology & Public Policy.  Here is part of the essay's introduction (with cites removed):

Since the onset of the novel coronavirus, criminologists have researched how the virus and its policy responses have affected crime and criminal justice, with the most significant findings indicating: (1) a steady increase in specific forms of violence, including primarily homicides/community gun violence and domestic violence; (2) reductions or stability in virtually all property crimes, but the acceleration of certain types of offending, such as fraud and cybercrime, due in large part to increased reliance on the internet and related platforms; (3) the emergence of new crime types, such as public health violations for breaking COVID-19 safety protocols; (4) a reduction in prison and jail populations — especially in the first 6–9 months of the pandemic; (5) a rapid spread of viral infections in jails and prisons; (6) a substantial increase in opioid use and fatalities; (6) the creation of gaps in the delivery of needed medical and mental health screening and treatment; and (7) an initial reduction in police stops, citations, and arrests — particularly in the first few months of the pandemic as many departments pulled back on patrol and limited contact with the public in large part due to viral spread, lockdowns — leading to fewer persons out in public, and a lack of protective equipment.

These research efforts have been important in documenting changes in crime and the criminal justice response and have provided important baseline information to compare against as criminologists continue to track changes in crime in the COVID-19 era.  Yet, one of the glaring omissions from the research accumulated thus far — and not necessarily the fault of criminologists per se — has been the lack of policy-relevant discussion surrounding the effects of all-things-COVID on the criminal justice system.  This essay takes a step in that direction.

In the sections that follow, I highlight what was the nonexistent policy playbook and initial response by the various actors of the criminal justice system and the subsequent policy decisions and lessons learned as the system navigated the viral outbreak in real time with little — or constantly changing guidance — from state and federal officials.  Not only were communities ravaged by the virus — and the racial/ethnic health injustices brought to light, but so to were police, court, and correctional systems and personnel as many became infected, hospitalized, and died — all the while the wheels of the justice system continued at a slower pace (with respect to policing) and in some cases stalled or stopped altogether for a period of time (such as the court system).  Following this section, I turn to some of the early experiences as to how policing, courts, and corrections made decisions to adapt to the spread of the virus.  The essay closes with some lessons learned by criminal justice agencies, some policy considerations, and importantly how the COVID-19 pandemic in concert with calls for social and racial justice within the justice (and health) system(s) have hopefully moved the dial to reform and reimagine what criminal justice could look like and should like with respect to trust, legitimacy, accountability, and transparency.

Will guilty pleas and apology reduce odds that Nikolas Cruz is sentenced to death for Parkland school mass murder?

The question in this post is prompted by today's events in a Florida courtroom covered in this CNN article headlined "Nikolas Cruz pleads guilty to murder charges and apologizes for Parkland high school massacre."  Here are excerpts:

Nikolas Cruz, the gunman who carried out the massacre of students and faculty members at Marjory Stoneman Douglas High School in February 2018, pleaded guilty in a Florida courtroom Wednesday to 17 counts of murder and 17 counts of attempted murder.  Cruz, 23, faces a minimum of life in prison and maximum of the death penalty, which will be decided by a jury in the upcoming sentencing phase of the trial.  The prosecution has said they plan to seek the death penalty.

In court, Cruz wore a collared shirt, black vest, face mask and large, thick-framed glasses. He stood at the court lectern and answered Judge Elizabeth Scherer's series of questions with a "yes ma'am" or "no ma'am," and assured her, "I know what's going on." He said he had depression and anxiety, and that he was experiencing anxiety in court, but he said he was able to proceed.

Cruz then responded "guilty" when each of the 34 charges were read to him. Afterward, he apologized to the victims in a short speech.  "I am very sorry for what I did, and I have to live with it every day.  If I were to get a second chance, I would do everything in my power to try to help others," he said. "I am doing this for you, and I do not care if you do not believe me.  And I love you, and I know you don't believe me, but I have to live with this every day, and it brings me nightmares and I can't live with myself sometimes, but I try to push through because I know that's what you guys would want me to do.

"I hate drugs, and I believe this country would do better if everyone would stop smoking marijuana and doing all these drugs and causing racism and violence out in the streets," he continued.  "I'm sorry, and I can't even watch TV anymore.  And I'm trying my best to maintain my composure, and I just want you to know I'm really sorry, and I hope you give me a chance to try to help others.  I believe it's your decision to decide where I go, and whether I live or die.  Not the jury's.  I believe it's your decision. I'm sorry."

The judge then asked Cruz if he understood that a jury, and not the victims' families, would have the legal power to decide his sentence, and he confirmed that he understood. "What I meant was I believe they should have the right to choose, the victims themselves, on whether I should take life or death," Cruz said.

He was then placed in handcuffs, fingerprinted and escorted from the courtroom.  Jury selection in the penalty phase is scheduled for January 4.

The plea comes more than three and a half years after the Valentine's Day shooting in Parkland, Florida, in which he killed 17 students and faculty members and injured 17 others in what is the deadliest high school shooting in US history.  A dozen law enforcement officers filled the courtroom Wednesday while media, victims, and the family of victims watched the proceedings, some of whom were seen wiping their eyes as the judge detailed the counts and penalties to Cruz.

Tony Montalto, the father one of the slain students, Gina Montalto, called Cruz's apology "ridiculous." "If he wanted to apologize, he shouldn't have murdered Gina and 16 other people that day," Tony Montalto told CNN. Asked about the prospect of the death penalty for Cruz, Montalto said, "We need to deprive these mass murderers of the notoriety they seek. . . . We need to remember the victims for the wonderful and vibrant people that they were.  I think he deserves as much of a chance as he gave my daughter and everyone else on February 14 of 2018."

In court the prosecution laid out the harrowing timeline of the shooting, which began when Cruz, then 19, grabbed his AR-15-style rifle and magazines and rode in an Uber to his former high school. There, he took out his rifle and loaded it, and when a student walked near, Cruz offered a warning. "You better get out of here," he told the student. "Something bad is about to happen." Cruz then wandered through the halls of the school and fired indiscriminately at various students and staff in hallways and classrooms, prosecutors said. He eventually left the school and was taken into custody several miles away....

Cruz's defense team had long ago offered a guilty plea in exchange for life in prison without the possibility of parole -- but only if prosecutors took the death penalty off the table. Prosecutors had rejected that, saying they were seeking the death penalty....

Cruz's guilty plea comes just after a $25 million settlement was reached between the Broward County School Board and 52 victims of the massacre, according to an attorney for some of the victims.  Attorney David Brill said the settlement of the lawsuit includes all of the families of the 17 who died, 16 of 17 victims who were shot but survived, and 19 victims who suffer from PTSD or other ailments.

Some prior related posts:

• Contemplating the capital prosecution of Parkland school shooter Nikolas Cruz
• In shadow of Parkland, a notable discussion with victim families about capital prosecutions in Florida
• "Nikolas Cruz’s birth mom had a violent, criminal past. Could it help keep him off Death Row?" 
• A year after tragedy, taking stock of the agony (and wondering about the costs) already surrounding the capital prosecution of Parkland shooter Nikolas Cruz
• Father of Parkland school shooting victim urges state prosecutors to abandon capital prosecution of shooter 

Rounding up some recent postings from Marijuana Law, Policy & Reform

I have not done a round-up of posts from my blogging over at Marijuana Law, Policy & Reform in quite some time, so here is a sampling of some posts in recent months at intersection of criminal justice reform and marijuana reform from MLP&R:

• "Smoke and Fears: The Effects of Marijuana Prohibition on Crime"

• Drug Policy Alliance's federal marijuana reform recommendations

• Medical marijuana prisoner cites recent Justice Thomas statement questioning federal prohibition in support of sentence reduction

• Is marijuana legalization likely to be a staple of all major Democratic campaigns in 2022?

• Senators Booker and Warren call upon DOJ to "decriminalize cannabis using its existing authority"

• Full policy brief version of "Blowing Smoke at the Second Amendment"

• "Targeted Marijuana Law Enforcement in Los Angeles, 1914-1950"

• California Supreme Court rules Prop 64 did not undo criminalization of possession of cannabis in prison

• "Legalization Without Disruption: Why Congress Should Let States Restrict Interstate Commerce in Marijuana"

New report examines aftermath of Baltimore's no-prosecution policy for minor drug possession and prostitution

As reported in this new release, a "new report from researchers at Johns Hopkins Bloomberg School of Public Heath found that Baltimore’s no-prosecution policy for minor drug possession and prostitution, enacted at the start of the COVID-19 pandemic, led to fewer new low-level drug and prostitution arrests, almost no rearrests for serious crimes for those who had charges dropped, and fewer 911 calls."  Here is more:

The findings suggest the new policies did not result in increased public complaints about drug use or sex work, and that those who had charges dropped did not go on to commit serious crimes.

Baltimore State’s Attorney Marilyn Mosby announced that Baltimore would stop prosecuting low-level drug and drug paraphernalia possession and prostitution in March 2020, chiefly as an infection-reduction measure at the start of the COVID-19 pandemic.  A year later she announced that the policy would remain in place — even after the pandemic winds down — as a way of reducing the burdens on city police and on the poorer, predominantly Black city residents who are traditionally arrested for such crimes....

The report’s key findings, covering the 14 months following the policy change (April 2020 to May 2021), include:

• An estimated 443 new drug/paraphernalia-possession and prostitution arrests were averted as a result of the new no-prosecution policy, 78 percent of which were averted in the Black community. This analysis was based on Baltimore Police Department arrest data.
• Of the 741 people whose drug and prostitution charges were dropped, six—less than 1 percent—had new arrests for serious crimes during the study period. This analysis was based on Maryland Courts Judicial Information System data.
• Calls to 911 about drug/paraphernalia and prostitution declined significantly in the post-policy change period.

The full report, titled Evaluation of Prosecutorial Policy Reforms Eliminating Criminal Penalties for Drug Possession and Sex Work in Baltimore, Maryland,” is available at this link.

"Plea Bargaining in the Shadow of a Retrial: Bargaining Away Innocence"

The title of this post is the title of this notable new empirical paper now available via SSRN and authored by Keith A. Findley, Camila Angulo Amaya, Gibson Hatch and John Smith. Here is its abstract:

Critics of plea bargaining have long contended that it has an innocence problem — that the imbalanced and coercive nature of plea negotiations can induce even innocent defendants to plead guilty.  While laboratory studies confirm that innocent individuals can indeed be induced to plead guilty, little real-world empirical evidence exists about the nature and extent of plea bargaining's innocence problem.

Utilizing original empirical data, this article begins to fill that void.  Looking at cases in a post-conviction context, we study the extent to which prosecutors in real cases utilize their plea-bargaining power to preserve convictions, even when the convictions appear to be deeply flawed and the chances the defendants are innocent are high.  We also examine the degree to which innocence-claiming defendants succumb to those pressures and accept the deals.  To address these questions, we collected a wide-range of data from U.S.-based member organizations of the Innocence Network about the cases they litigated from 2010-2020.

In broadest terms, the data reveal that, in post-conviction litigation involving defendants with a high likelihood of being actually innocent and wrongly convicted, prosecutors offered plea bargains in 23 percent of the cases.  Moreover, when prosecutors made plea offers, the plea concessions they offered were uniformly steep.  Prosecutors on average offered to knock off close to half of the original sentences (45 percent off the original sentence).  The effect was that they offered to erase more than 90 percent of the total time the defendants had left to serve; the remaining years the defendants had to serve represented on average 6 percent of the original maximum imposed sentence.  Indeed, in 88 percent of the cases, the effective remaining years on the sentence derived from the plea offer was zero, as most prosecutors offered time served.  The data also show that in total, 56 percent of the defendants accepted these hard-to-refuse bargains.  Finally, in most cases in which defendants rejected plea offers prior to adjudication of their post-conviction motions, and in every case in which they rejected plea offers made after they had won a new trial, they nonetheless prevailed in obtaining relief from their convictions.

Examining these patterns through the lens of the shadow-of-the-trial theory of plea bargaining, our data provide preliminary evidence that some prosecutors do indeed bargain strategically in the shadow of a trial, discounting the maximum sentence sought by the perceived likelihood of conviction, and they do so even when the likelihood of conviction appears virtually nil.  Hence the data also offer support for the concern that some prosecutors are using their leverage in plea bargaining to preserve convictions in serious cases, even when they know the chances of conviction at trial are quite low and therefore the possibility of innocence is unusually high.  Finally, this article explores possible reforms to mitigate the harmful consequences of these patterns in a system ostensibly designed to seek the truth and protect the innocent.

Recordings of "Understanding Drug Sentencing" symposium’s panels now available

Regular readers surely recall various prior posts promoting the terrific conference organized by the Drug Enforcement and Policy Center and the Academy for Justice which took place earlier this month on October 7-8, 2021, titled "Understanding Drug Sentencing and its Contributions to Mass Punishment."   I am now pleased to be able to report that Recordings for six of the Understanding Drug Sentencing symposium’s panels are now available on the event site here. You can also find recordings via the DEPC playlist on YouTube here.

Notable new essays in Brennan Center's "Punitive Excess" series focused on responding to violent crime and mandatory minimums

I highlighted here back in April the terrific essay series assembled by the Brennan Center for Justice under the title "Punitive Excess."  I have blogged about sets of new essays repeatedly (as linked below) because each new set of new essays are must reads (like all that come before).  The latest pair of piece ought to be of particular interest to sentencing fans:

• "Addressing Violent Crime More Effectively: Excessive punishment is the wrong response to rises in homicide rates" by David Alan Sklansky

• "End Mandatory Minimums: Inflexible, harsh sentences exacerbate crime and racial disparities alike" by Alison Siegler

Both of these pieces are must reads, and the piece on mandatory minimums has links to research and other materials that might be useful for those litigating against such sentences or seeking reductions therefrom.  Here is a segment (with links) from that piece:

[P]rosecutors’ power over mandatory minimums in turn creates racial disparities, obliterating any pretense of an unbiased system.  A recent study finds that prosecutors’ mandatory minimum charges resulted in Black individuals spending more time in prison than whites for the exact same crimes.  In fact, prosecutors bring mandatory minimums 65 percent more often against Black defendants, all else remaining equal. Another study similarly finds that some federal prosecutors charge Black and Latino individuals more often than white individuals with possession or sale of a quantity of drugs just sufficient to trigger a mandatory minimum; the disparity is highest “in states with higher levels of racial animus.”

Finally, mandatory minimums do not promote community safety.  Rather, any prison time at all increases the risk of future crime because “incarceration is inherently criminogenic”; mandatory minimums only exacerbate this situation.  Florida experienced a 50 percent spike in crime after enacting mandatory minimums.  Long sentences also make it more difficult for people to reintegrate into society.  And our overreliance on prisons makes us less safe by diverting resources from other critical public safety needs.  In contrast, studies show that shorter sentences in drug cases neither diminish public safety nor increase drug abuse.

The dominant paradigm is vulnerable, and instituting a new paradigm is both possible and crucial. President Biden and his attorney general have denounced mandatory minimums, as did former Attorney General Eric Holder.  Even though federal prosecutors — all of whom are subject to supervision by the Department of Justice — have long been the primary proponents of mandatory minimums, Attorney General Merrick Garland affirmed this position during his confirmation hearings: “We should . . . , as President Biden has suggested, seek the elimination of mandatory minimum[s].”

However, despite Garland’s testimony, his Department of Justice has given no sign that it will stop pursuing mandatory minimums. In fact, earlier this year, Garland reinstated a 2010 Holder policy that incorporated a long-standing directive to federal prosecutors: “Where two crimes have the same statutory maximum and the same guideline range, but only one contains a mandatory minimum penalty, the one with the mandatory minimum” should be charged.  To make matters worse, Garland chose not to reinstate a 2013 Holder policy that both directed prosecutors to decline to charge a mandatory minimum in “low-level, non-violent drug offenses” and explicitly acknowledged that such sentences “do not promote public safety, deterrence, and rehabilitation.”  After twenty years defending people charged with federal crimes, I’ve learned that prosecutors are rarely agents of change.  This is unfortunate because Garland has real power to reduce racialized mass incarceration. He can and should instruct federal prosecutors to refrain from charging and seeking mandatory sentences, especially in drug cases, where popular opposition to mandatory minimums is strongest.

Prior related posts:

• Brennan Center launches notable new essay series titled "Punitive Excess"
• More notable new essays in Brennan Center's "Punitive Excess" series
• Three more great new essays in Brennan Center's "Punitive Excess" series 
• Still more great new essays in Brennan Center's "Punitive Excess" series
• Another rounds of terrific new essays in Brennan Center's "Punitive Excess" series 
• Yet more must-read new essays in Brennan Center's "Punitive Excess" series 

"Towards A New Framework for Achieving Decarceration: A Review of the Research on Social Investments"

The title of this post is the title of this new paper from the Square One Project at Columbia University authored by Laura Hawks, Evangeline Lopoo, Lisa Puglisi and Emily Wang. Here is a portion of the long paper's introduction:

[T]his paper aims to examine the science behind sustainable decarceration — and the extent to which there is scientific support for how community organizations and societal entities can lead decarceration efforts in concert with continued legal reforms to descale facility-based and community corrections populations.  To be sure, academics of disparate ideology have previously studied sections of this road map.  Some support the need for improving correctional programming, including a risk-needs-responsivity model of correctional programming, which aims to optimize resources within correctional systems to rehabilitate those incarcerated.  Others, including Professors Angela Davis and Ruth Wilson Gilmore, conceptually reject reforms within the correctional sector and propose a framework for dismantling the prison industrial complex that emphasizes investments in alternate sectors, prioritizing economic and political liberation of the historically oppressed (Davis 2005; Wilson Gilmore 2007).  With this paper, we intend to add to this latter school of thought by systematically cataloguing community investments detached from the criminal legal system which promote decarceration.  We then highlight what academics have not yet sought to study.  We undertake this study with the belief that decarceration is as worthy of careful study and investment as the prevention of cardiovascular disease and warrants experimentally designed studies at the individual and community level which tests the short and long-term benefits of intervention, dose of intervention, and the costs and benefits to society.

To our knowledge, no review has identified and synthesized the experimental evidence to determine which community investment efforts effectively support ongoing decarceration efforts and which do not.  To fill this gap, we have conducted a scoping review to identify interdisciplinary interventions, detached from the correctional control system, in the domains of education, housing, healthcare, employment, and social support programs that help reduce incarceration by reducing likelihood of becoming involved in the criminal legal system (referred to in this paper as incident incarceration) or repeat involvement in the criminal legal system (referred to in this paper as recidivism).  We centered our review on the following research question:

Which interventions (including social policies) grounded in community investment have been shown to achieve decarceration as measured by reduced incident incarceration or reduced recidivism?

Bureau of Justice Statistics releases 2020 National Crime Victimization Survey data indicating over a 20% decline in violent victimization from 2019 to 2020

Crime data is always complicated, and the pandemic era adds a huge extra dimension to figuring out just what is happening with crime in the US and how policymakers should respond. The latest data report from the Bureau of Justice Statistics on crime victimization in 2020 seems to add another complicated piece to the complicated puzzle. Via an email I received this morning, here is some more interesting data:

Today, the Bureau of Justice Statistics released findings from the 2020 National Crime Victimization Survey (NCVS), which show a 22% decline in the total violent victimization rate from 2019 to 2020. The rate of violent crime dropped from 21.0 to 16.4 victimizations per 1,000 persons age 12 or older.

Violent victimization in the NCVS includes rape or sexual assault, robbery, aggravated assault, and simple assault. It does not include homicide as the survey is based on in-person interviews with persons age 12 or older in a representative sample of households in the United States.

The decrease in violent victimization was driven primarily by a decline in simple and aggravated assault. The rate of simple assault fell from 13.7 to 10.7 victimizations per 1,000 persons age 12 or older from 2019 to 2020, while the rate of aggravated assault decreased from 3.7 to 2.9 victimizations per 1,000. The rate of violent crime, excluding simple assault, declined 23% from 7.3 to 5.6 victimizations per 1,000.

The rates of rape or sexual assault (1.2 victimizations per 1,000 persons age 12 or older) and robbery (1.6 per 1,000) in 2020 were not significantly different from the rates in 2019.

The rate of property crime victimization declined for the second year in a row, from 101.4 to 94.5 victimizations per 1,000 households from 2019 to 2020. The decline in property crime (burglary, residential trespassing, motor vehicle theft, and other types of household theft) during this period was due to decreases in the rates of burglary and trespassing. Burglary declined 19% (from 11.7 to 9.5 per 1,000), and trespassing declined 24% (from 5.5 to 4.1 per 1,000). From 2019 to 2020, there were no statistically significant changes in the rates of motor vehicle theft and other household theft.

The NCVS and FBI Uniform Crime Reporting (UCR) program measure an overlapping, but not identical, set of offenses, which leads to differences in estimates of crime between the two sources.  The NCVS interviews victims, while the UCR collects data on crime recorded by law enforcement agencies. Victims reported about 40% of violent victimizations and 33% of property victimizations to the police in 2020. Restricting the NCVS to violent crime reported to police, and excluding simple assault, offers a comparable measure to the UCR.  From 2019 to 2020, the rate of violent crime, excluding simple assault, that victims reported to police decreased 18%, from 3.4 to 2.8 victimizations per 1,000 persons age 12 or older.  During this same period, the rate of property crime that victims reported to police did not change significantly (31.2 property crimes per 1,000 households reported to law enforcement in 2020).  However, the rate of burglary reported to police by victims declined from 6.0 to 4.2 per 1,000 households from 2019 to 2020.

By comparison, the FBI reported an increase in violent crimes from 2019 to 2020 (3.8 to 4.0 violent crimes per 1,000 persons) and a decrease in property crimes (21.3 to 19.6 per 1,000).  The FBI also reported a decrease in burglary from 2019 to 2020 (3.41 to 3.14 per 1,000 persons).

The BJS report, Criminal Victimization, 2020 (NCJ 301775), was written by BJS statisticians Rachel E. Morgan, Ph.D., and Alexandra Thompson. The report, related documents and additional information about BJS’s statistical publications and programs are available on the BJS website at bjs.ojp.gov.

The accompanying summary report, The National Crime Victimization Survey and Uniform Crime Reporting program: A complementary picture of crime in 2020, was written by BJS statisticians Rachel E. Morgan, Ph.D., and Alexandra Thompson.

BJS also released a third-party report, National Crime Victimization Survey: Assessment of Outlier Weights (NCJ 302186), that was produced by RTI International for BJS under award number 2020-85-CX-K017 and is also available on the BJS website.

Federal double jeopardy cert grant and two summary reversals awarding police qualified immunity on new SCOTUS order list

After two weeks hearing oral argument (including a short holiday week), the Supreme Court has the next two weeks "off" before its November sitting.  But a final bit of SCOTUS action today comes in the form of this order list with two cert grants, a lot of cert denials, and two summary reversals.  The cert grants are in one civil and one criminal "Indian" case, and the question presented in Denezpi v. US, 20-7622, from this cert petition is:

Is the Court of Indian Offenses of Ute Mountain Ute Agency a federal agency such that Merle Denezpi’s conviction in that court barred his subsequent prosecution in a United States District Court for a crime arising out of the same incident?

The two SCOTUS per curiam summary reversals both involve short unanimous decisions overturning rulings by the Ninth and Tenth Circuits that denied qualified immunity to police officers. The Ninth Circuit case, Rivas-Villegas v. Cortesluna, No. 20-1539 (S. Ct. Oct. 18, 2021) (available here), is described by the Justices as involving "Rivas-Villegas plac[ing] his knee on Cortesluna for no more than eight seconds and only on the side of his back near the knife that officers were in the process of retrieving."  The Tenth Circuit case, City Tahlequah v. Bond, No. 20-16689 (S. Ct. Oct. 18, 2021) (available here), is described by the Justices as involving two officers shooting to death a suspect who "raised the hammer [which he grabbed during a tense encounter] higher back behind his head and took a stance as if he was about to throw the hammer or charge at the officers."

Though I do not follow discussions and debates over policing doctrines closely, I know that there has been considerable interest in encouraging the Supreme Court to cut back (or even eliminate) the judge-created doctrine of qualified immunity.  These two new decisions would seem to suggest that this current Court seems just fine with applying qualified immunity and that any significant changes to the doctrine for the police will need to come from other branches.

New special issue of Science explores "Criminal Injustice: Mass Incarceration in the United States"

This new issue of Science includes a special section of articles exploring the deep roots and deep consequences of mass incarceration in the United States.  This introduction, titled "An outlier of injustice," sets up what follows this way:

For much of the 20th century, the incarceration rate in the US was relatively stable.  But beginning in the early 1970s, several decades of “tough on crime” policies contributed to a dramatic rise in incarceration.  Today, despite recent declines, the US incarceration rate remains a global outlier.  This system of mass incarceration is particularly hostile to Black Americans, who have been imprisoned in stunningly disproportionate numbers. 

Amid burgeoning interest in scholarship on criminal justice, this special issue examines social science research on the state of mass incarceration in the US: its origin and expansion, its far-reaching effects on families and communities, and why the public tolerates and encourages it.  Tracing the system’s roots back to slavery, researchers examine the interplay between incarceration, labor demand, and racial domination in the labor market.  As criminal justice infrastructure has grown more costly and vast, the system has extracted wealth from poor communities that it preys upon to fiscally survive. 

This ever-expanding web of incarceration entangles extraordinary numbers of people of all racial groups, with close to half of all Americans having a spouse or coparent, parent, sibling, or child that is or has been incarcerated.  To support such a system, many Americans psychologically deny that structural racism is at the heart of criminal justice.  Government responses to social justice protests often ignore root social causes and possible remedies and instead rely on policing.  Also, law enforcement increasingly draws upon commercial technologies that challenge public oversight and democratic policing.  Research on these topics is critical to reveal how we got here, as well as to inform and inspire change.

Here are links to the articles that follow, all of which are worth checking out:

"Policing social unrest and collective violence" by Elizabeth Hinton

"The corporate shadow in democratic policing" by Elizabeth E. Joh

"Assessing mass incarceration’s effects on families" by Hedwig Lee and Christopher Wildeman

"Exclusion and exploitation: The incarceration of Black Americans from slavery to the present" by Christopher Muller

"Toward an understanding of structural racism: Implications for criminal justice" by Julian M. Rucker and Jennifer A. Richeson

"The predatory dimension of criminal justice" by Joshua Page and Joe Soss

"Doing Justice in Sentencing"

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

Anyone who would read a paper on this subject or with this title knows that sentences received by people convicted of crimes in American courts, especially serious ones, are much too often cruelly severe, racially disparate, and reflective more of a prosecutor’s or judge’s idiosyncrasies than of a reasoned assessment of what considerations of justice concerning this offense by this person require or permit.  The process is ultimately casual, as if invasive intrusion into someone’s life is a matter of no great importance.  To people sentenced, their families, and others who love them it is devastatingly important.  Relatively simple ideas about justice, fairness, equality, and parsimony provide a framework to replace contemporary casual justice with a jurisprudence that takes human dignity seriously.

Continuing capital commentary as SCOTUS considers Marathon bomber's capital process

In prior posts here and here, I rounded up press coverage just before and just after the Supreme Court heard oral argument in US v. Tsanaev to consider whether the First Circuit erred when reversing the death sentence given to the bomber who killed three and injured hundreds during the 2013 version of the Boston Marathon.  Not surprisingly, the SCOTUS argument has prompted a number of thoughtful folks to have thoughtful comments on the case and much that surrounds it.  Here is a partial round-up of some of this recent commentary:

From Erwin Chemerinsky, "Biden’s death penalty hypocrisy"

From Chris Geidner, "Supreme Court couldn't consider death penalty case if not for Biden's broken promise"

From Thaddeus Hoffmeister, "Tsarnaev Supreme Court appeal: Do unbiased jurors exist in an age of social media?"

From Karen J. Pita Loor, "The perplexing case of Biden, Tsarnaev and the death penalty"

From Amelia Wirts, "Death penalty can express society’s outrage – but biases often taint the verdict"

"Sentencing Commission Data Tool Is Deeply Flawed"

The title of this post is the headline of this new Law360 commentary by Michael Yeager which provides an important and critical discussion of the US Sentencing Commission's new JSIN sentencing tool.  This piece develops and details some of the concerns flagged here when JSIN was first released, and here are excerpts from the piece:

In some respects, [JSIN] an improvement from the Sentencing Commission's annual reports and past data tools. For example, past annual reports have provided an average of all fraud sentences; that method lumps all frauds together, whether they involve $1 million or $100 million.

JSIN is more focused than that and thus closer to the guidelines calculation that judges must actually perform at sentencing. But the most important numbers that JSIN reports — the average and median sentences for a particular position on the sentencing table — are inflated by a series of choices to exclude large chunks of the commission's own dataset.

First, JSIN excludes all sentences for cooperating witnesses, meaning cases in which the government filed and the court granted a Section 5K1.1 motion for a substantial assistance departure....

Second, JSIN includes mandatory minimum sentences, which by definition are not examples of how judges have exercised discretion. In fact, they're the opposite....

Third, and most important, JSIN excludes all nonimprisonment sentences: not just nonimprisonment sentences due to a Section 5K1.1 motion, or application of Section 5K3.1's safety valve, but rather all nonimprisonment.  That is, all sentences that are probation only, fine only, alternative confinement only (such as home confinement) or any combination of those options that doesn't also include prison time.

At positions on the sentencing table where the range is zero to six months, that means that JSIN is excluding sentences within the advisory range.  And even at many higher positions on the sentencing table, a substantial portion of cases are nonimprisonment.  Yet, JSIN excludes all of them from its averages and medians.

The effect of these choices can be dramatic. When JSIN is queried for stats on the position of the sentencing table for U.S. Sentencing Commission Section 2T1.1 — tax evasion, offense level 17 and criminal history I — JSIN reports the median sentence as 18 months.  But when one uses the commission's full dataset to calculate the median on that same cohort (Section 2T1.1, level 17, history I, no 5K1.1) and includes sentences of probation, the median is significantly lower.  Instead of JSIN's 18 months, the median is just 12 months. That's a whole six months lower — and a 33% decrease....

[B]y conducting a more complete study of the Sentencing Commission's data than the JSIN provides, the defense could also examine particular aspects of a guidelines calculation, such as loss or drug weight.  The defense could strip out mandatory minimum sentences or do an analysis of 10 or 15 years of cases, not just five.  They could also break down cases by circuit or district, not just nationally.  Now that JSIN is available, defense attorneys should consider all the above.  It was already a good idea to use accurate and complete data analysis of similarly situated defendants. But now the need has increased. The defense now has to counter JSIN and the false impression it creates.

Prior related JSIN posts:

• USSC releases interesting (but problematic?) new JSIN platform providing data on sentencing patterns
• What do we know about JSIN and its use in federal sentencing proceedings two weeks after its release? 

Latest issue of SMU Law Review focused on criminal justice reforms

I just had a chance to notice and note here that the Summer 2021 issue of the SMU Law Review has a great bunch of articles on a great array of criminal justice topics.  Here are all the pieces in the issue, all of which are relatively short and many of which relate to sentencing issues in various ways:

The Racial Architecture of Criminal Justice by Bennett Capers

Beyond Transparency: Police Union Collective Bargaining and Participatory Democracy by Walter Katz

Reforming State Bail Reform by Shima Baughman, Lauren Boone, and Nathan Jackson

Power and Procedure in Texas Bail-Setting by Amanda Woog and Nathan Fennell

Victims’ Rights in the Diversion Landscape by Kay L. Levine

“Victims’ Rights” and Diversion: Furthering the Interests of Crime Survivors and the Community by Miriam Krinsky and Liz Komar

The Reform Blindspot by Irene Oritseweyinmi Joe, Shelly Richter, and Dayja Tillman

Let’s Move Criminal Justice Reforms Upstream: A Perspective from the Bench by Bridget McCormack

"New York State’s New Death Penalty: The Death Toll of Mass Incarceration in a Post-Execution Era"

The title of this post is the title of this interesting new report from the the Center for Justice at Columbia University which reinforces my sense that we ought to give a lot more attention to functional death sentences (which are relatively frequent) than to formal death sentences (which are relatively rare). Here is the report's introduction (with emphasis in the original and notes removed):

New York State was once an international outlier in its use of capital punishment.  Prior to 1972, when the US Supreme Court outlawed the death penalty, New York ranked second in most executions of any state in the country, executing 1130 people over a 364 year period.  Yet, abolishing the death penalty did not slow death behind bars.  Since 1976 — when the state began compiling data on deaths in custody — 7,504 people died while in the custody of the New York State Department of Corrections and Community Supervision (DOCCS).  This is seven times the number of deaths of those who were executed by the state.  Those who have died in custody over the last 45 years have largely been Black people, and particularly in the last decade, older people and people serving sentences of 15 years or more.  Increasingly, advocates and lawmakers have come to call this devastating reality “death by incarceration,” or “death by incarceration sentences” that ensure that thousands will die in prison and/or face a Parole Board that denies release to the majority of people who appear before it, and disproportionately denies release to Black New Yorkers.

This report compiles and analyzes data on in-custody deaths in New York State between 1976 and 2020 and offers policy recommendations for curtailing the number of deaths behind bars.  Without policy intervention, thousands of currently incarcerated New Yorkers are at risk of dying behind bars in the years and decades to come. 

All lives lost in the New York State correctional system raise questions about the morality and humanity of the state and its governance.  The large proportion of deaths of incarcerated Black New Yorkers highlight the racism of criminal justice policy in the state, and how the need for racial justice is a matter of life and death.  The disproportionate deaths of older adults serving long sentences highlight important questions about the state’s investments in public and community safety.  Incarcerated adults aged 55 and older are the least likely to commit a new crime across all age groups, and yet are kept in prison due to a lack of meaningful opportunities for release and repeated parole denials. Importantly, death by incarceration sentences and repeated parole denials ignore both the reality and possibility of redemption and transformation for people in prison. Older adults in prison are often leaders, mentors and stewards of the community. Of those who are released from prison, many continue their service and leadership in their communities, mentoring young people, providing reentry services for others released from custody, and intervening to prevent and reduce violence.

This report concludes that New York State must end its new de facto death penalty and offers recommendations towards this goal, including policies with large community and legislative support.

Key Findings 

• More people have died in NY State custody in the last decade than the total of number of people executed in the 364 years New York State had the death penalty. 1,278 people died in NY State custody in the last decade compared to 1,130 who were executed in NY State between 1608 and 1972.
• Today, more than 1 in 2 people who die in NY State custody are older adults, compared to roughly 1 in 10 at the beginning of the era of mass incarceration. 
• Every three days someone dies inside a NYS prison, compared to every 12 days in 1976. 
• In 2018, Black people accounted for 45% of all deaths in DOCCS custody, despite only making up 14% of all deaths of New York State residents. 
• People who have already served 15 years in custody account for 9 times more of the total deaths behind bars today than they did in the 1980s, the first full decade of available data. 
• 40% of all deaths behind bars since 1976 of people 55 and older happened in the last ten years. 
• In the most recent decade, roughly 1 in 3 people who died behind bars had served at least 15 years, compared to 1 in 29 in the 1980s.

SCOTUS argument suggests Justices likely to reinstate reversed death sentence for Boston Marathon bomber Dzhokhar Tsarnaev

When the US Supreme Court back in March decided to grant cert on the federal government's appeal of the First Circuit's reversal of Boston Marathon bomber Dzhokhar Tsarnaev's death sentence, a smart bet would have been that a majority of Justices were inclined to reinstate that death sentence.  Such a bet looks even smarter after today's Supreme Court argument where the Justices questions and comments revealed the predictable ideological split and strongly suggested that a majority of Justices will be voting to reinstate Tsarnaev's death sentence.

The headlines from various press and blog coverage reports on most of the essentials:

From CNN, "Supreme Court conservatives appear ready to endorse death sentence for Boston Marathon bomber Dzhokhar Tsarnaev"

From Crime & Consequences, "SCOTUS Appears Poised to Re-Instate Death Penalty for Boston Marathon Bomber"

From Fox News, "Boston Bomber case: Kavanaugh, Kagan clash in rare testy exchange over mitigating evidence"

From NBC News, "Supreme Court appears likely to allow death sentence for Boston Marathon bomber"

From SCOTUSblog, "Justices appear to favor reinstating death penalty for Boston Marathon bomber"

Interestingly, the second of the two questions presented in the case captured most of the Justices' attention as they explored "Whether the district court committed reversible error at the penalty phase of respondent’s trial by excluding evidence that respondent’s older brother was allegedly involved in different crimes two years before the offenses for which respondent was convicted."  Some of the questioning on this issue suggested that the Court might have to, or might want to, say something significant about the evidentiary rules that attend the penalty phase of a capital trial.  If they do speak to this issue broadly, the significance of the Tsarnaev case could extend beyond this defendant's awful crimes and ultimate punishment.

Coverage and commentary as 100th guilty plea entered for federal charges in January 6 riots

Zoe Tillman at BuzzFeed News has an impressive extended report with all sorts of linked documents to chronicle pleas entered so far on federal charges stemming from the January 6 riot at the US Capitol.  This main article is fully  headlined: "100 Capitol Rioters Have Pleaded Guilty. Here’s What Their Cases Show About The Jan. 6 Investigation.  Guilty pleas are stacking up. Here’s what rioters are admitting to, and what they and the government are getting out of these deals."  Here is a snippet:

One hundred is an arguably arbitrary number, since the total number of people charged with participating in the riots keeps growing and prosecutors haven’t announced a target for when the investigation will end. The FBI has hundreds of photos posted online of people they’re still trying to identify.

But 100 is a nice round number, and a large enough pool to understand the deals that prosecutors have offered in the months since the attack on the Capitol, who is taking them, and what both sides are getting in return.  BuzzFeed News is publishing a database of documents filed in connection with these pleas, including the agreements that outline the terms and separate statements of the criminal conduct that defendants are admitting to....

Defendants taking early deals are avoiding the greater legal risk and public exposure they’d face if they went to trial; they’re hoping to walk away with little to no time behind bars.  Prosecutors are securing a steady stream of convictions as they continue to track down more suspects and defend against legal challenges to some of the more complex cases they’ve already brought.

Judges, meanwhile, are using some of their final encounters with rioters at plea hearings and sentencings to denounce the post-election conspiracy theories that motivated the riots and the right-wing rhetoric downplaying the severity of what happened at the Capitol in the months that followed.  They’ve insisted defendants fully admit the role they played — not just the individual criminal activity they’re pleading guilty to, but also enabling the attack on Congress and bolstering Trump’s effort to disrupt the peaceful transfer of power after he lost in November.

This companion article, headlined "How To Read The Capitol Riot Plea Deals: A judge accepted the 100th guilty plea in the Jan. 6 cases on Wednesday," provides a nice primer on how to understand the particulars of all the federal filings in these cases.

And, somewhat relatedly, Carissa Byrne Hessick has this effective new Lawfare piece titled "Are the Jan. 6 Plea Deals Too Lenient?".  Here is its concluding paragraph:

In short, it may be too soon to judge how federal prosecutors are using their plea bargaining leverage in the Jan. 6 cases.  Only a small fraction of those cases have resulted in guilty pleas at this point.  And it appears that so far the government has been prioritizing those defendants who did little more than enter the Capitol, walk around and leave. More generally, defendants who plead guilty sooner tend to get shorter sentences than those who plead guilty later. In fact, some prosecutors make “exploding” plea offers that expire if a defendant takes too long to plead guilty.  All of these factors suggest that the bulk of the Jan. 6 defendants may end up receiving far less lenient plea bargains than we’ve seen so far.  Although it seems like a safe prediction that other Jan. 6 defendants will get lenient plea deals, whether that is what actually happens is in the hands of the government.  When it comes to plea bargaining, prosecutors hold all the cards, and so while a handful of Jan. 6 defendants may choose to go to trial, prosecutors will get to dictate what the guilty pleas look like for the rest of them.

Some of many prior related posts:

• "Many Capitol rioters unlikely to serve jail time" because some facing only misdemeanor convictions
• Noting the importance of charging policies and practices (and consistency?) as federal rioting charges get resolved from coast-to-coast
• Harsh penal treatment of some Capitol rioters being criticized by notable progressive 
• New plea deals sets possible new precedent for resolving low-level Capitol riot prosecutions with single misdemeanor with 6 month jail maximum
• Federal judges expressing some concern about lenient plea deals for some Capitol riot defendants
• Notable accounting of federal prosecutions and sentences responding to riots both before and during January 6
• Recent Jan 6 rioter sentencings showcase different judges with different sentencing perspectives

US Sentencing Commission issues new report on "Federal Sentencing of Child Pornography: Production Offenses"

Back in June 2021, as detailed in this post, the US Sentencing Commission released this big report, running nearly 100 pages, titled "Federal Sentencing of Child Pornography: Non-Production Offenses."  A follow-up report, running "only 72 pages" was released today here under the title "Federal Sentencing of Child Pornography: Production Offenses."  This USSC website provides some "key findings" from the report, and here are some of those findings:

• Although child pornography production cases comprise a small percentage of the overall federal caseload, the expansion of digital and mobile technology has contributed to a 422 percent increase in the number of production offenders sentenced over a 15-year period, from 98 offenders in fiscal year 2005 to 512 offenders in fiscal year 2019.

• Child pornography production offenders generally received lengthy sentences. In fiscal year 2019, production offenders received an average sentence of almost 23 years of imprisonment (275 months), ranging from one year to life imprisonment. Furthermore, over three-quarters (78.0%) were convicted under a statute carrying at least a 15-year mandatory minimum penalty. Most child pornography production offenders, however, received a variance below the applicable guideline range (57.2% of the 512 cases).

• A majority (56.6%) of child pornography production cases sentenced in fiscal year 2019 involved a single victim. However, a substantial minority of cases (41.0%) involved more than one minor victim, ranging from two to 440 victims.

• The typical production offender maintains a position of trust over the victim and has physical access to the child during the production of child pornography. Of the 512 child pornography production offenders sentenced in fiscal year 2019, 60.3 percent were related to or otherwise maintained a position of trust over the minor victim, whether through familial relationships or by virtue of the offender’s role as a teacher or a coach, for example.

• Due to technological advancements and the changing nature of production offenses, an increasing proportion of production offenders exploit victims remotely through use of the internet or mobile devices. For example, over one-third (35.4%) of production offenders sentenced in fiscal year 2019 were internet strangers who met their victims through an online platform, more than double the proportion of offenders sentenced in fiscal year 2010 who met their victims online (14.3%)....

• The vast majority of fiscal year 2019 child pornography production offenders (80.9%) were sentenced for an offense that involved sexual contact of a minor....

• Although the average sentence imposed was lengthy for child pornography production offenders (275 months), courts imposed longer sentences (averaging over 300 months) on offenders who:

  • victimized infants or toddlers (average sentences of 364 months and 330 months, respectively);
  • were parents of victims (340 months, on average);
  • engaged in or facilitated the sexual contact of a minor during the offense (307 months, on average); or
  • incapacitated victims (313 months, on average).

Prior recent related post:

US Sentencing Commission issues big new report on "Federal Sentencing of Child Pornography: Non-Production Offenses" 

"The Color of Justice: Racial and Ethnic Disparity in State Prisons"

The title of this post is the title of this new publication by The Sentencing Project authored by Ashley Nellis.  Here are parts of the report's overview:

This report details our observations of staggering disparities among Black and Latinx people imprisoned in the United States given their overall representation in the general population.  The latest available data regarding people sentenced to state prison reveal that Black Americans are imprisoned at a rate that is roughly five times the rate of white Americans.  During the present era of criminal justice reform, not enough emphasis has been focused on ending racial and ethnic disparities systemwide.

Going to prison is a major life-altering event that creates obstacles to building stable lives in the community, such as gaining employment and finding stable and safe housing after release. Imprisonment also reduces lifetime earnings and negatively affects life outcomes among children of incarcerated parents.

These are individual-level consequences of imprisonment but there are societal level consequences as well: high levels of imprisonment in communities cause high crime rates and neighborhood deterioration, thus fueling greater disparities.  This cycle both individually and societally is felt disproportionately by people who are Black. It is clear that the outcome of mass incarceration today has not occurred by happenstance but has been designed through policies created by a dominant white culture that insists on suppression of others....

Truly meaningful reforms to the criminal justice system cannot be accomplished without acknowledgement of its racist underpinnings. Immediate and focused attention on the causes and consequences of racial disparities is required in order to eliminate them.  True progress towards a racially just system requires an understanding of the variation in racial and ethnic inequities in imprisonment across states and the policies and day-to-day practices that drive these inequities.

KEY FINDINGS

• Black Americans are incarcerated in state prisons at nearly 5 times the rate of white Americans.
• Nationally, one in 81 Black adults per 100,000 in the U.S. is serving time in state prison.  Wisconsin leads the nation in Black imprisonment rates; one of every 36 Black Wisconsinites is in prison.
• In 12 states, more than half the prison population is Black: Alabama, Delaware, Georgia, Illinois, Louisiana, Maryland, Michigan, Mississippi, New Jersey, North Carolina, South Carolina, and Virginia.
• Seven states maintain a Black/white disparity larger than 9 to 1: California, Connecticut, Iowa, Maine, Minnesota, New Jersey, and Wisconsin.
• Latinx individuals are incarcerated in state prisons at a rate that is 1.3 times the incarceration rate of whites.  Ethnic disparities are highest in Massachusetts, which reports an ethnic differential of 4.1:1.

RECOMMENDATIONS

1. Eliminate mandatory sentences for all crimes.  Mandatory minimum sentences, habitual offender laws, and mandatory transfer of juveniles to the adult criminal system give prosecutors too much authority while limiting the discretion of impartial judges.  These policies contributed to a substantial increase in sentence length and time served in prison, disproportionately imposing unduly harsh sentences on Black and Latinx individuals.

2. Require prospective and retroactive racial impact statements for all criminal statutes.  The Sentencing Project urges states to adopt forecasting estimates that will calculate the impact of proposed crime legislation on different populations in order to minimize or eliminate the racially disparate impacts of certain laws and policies.  Several states have passed “racial impact statement” laws.  To undo the racial and ethnic disparity resulting from decades of tough-on-crime policies, however, states should also repeal existing racially biased laws and policies.  The impact of racial impact laws will be modest at best if they remain only forward looking.

3. Decriminalize low-level drug offenses.  Discontinue arrest and prosecutions for low-level drug offenses which often lead to the accumulation of prior convictions which accumulate disproportionately in communities of color.  These convictions generally drive further and deeper involvement in the criminal legal system.