Sentencing Law and Policy

"Is the death penalty un-Christian?"

The question in the title of this post is the headline of this recent commentary authored by Mathew Schmalz, ans Associate Professor of Religion at the College of the Holy Cross and published in The Conversation. Here are excerpts:

As a Catholic scholar who writes about religion, politics and policy, I understand how Christians struggle with the death penalty -- there are those who cannot endure the idea and there are others who support its use.  Some Christian theologians have also observed that capital punishment could lead to the conversion of criminals who might repent of their crimes when faced with the finality of death.

Is the death penalty anti-Christian?

In its early centuries, Christianity was seen with suspicion by authorities.  Writing in defense of Christians who were unfairly charged with crimes in second-century Rome, philosopher Anthenagoras of Athens condemned the death penalty when he wrote that Christians “cannot endure even to see a man put to death, though justly.”  But as Christianity became more connected with state power, European Christian monarchs and governments regularly carried out the death penalty until its abolition in the 1950s through the European Convention on Human Rights....

In the Hebrew Bible, Exodus 21:12 states that “whoever strikes a man so that he dies shall be put to death.” In Matthew’s Gospel, Jesus, however, rejects the notion of retribution when he says “if anyone slaps you on the right cheek, turn to him the other also.”  While it is true that the Hebrew Bible prescribes capital punishment for a variety of offenses, it is also true that later Jewish jurists set out rigorous standards for the death penalty so that it could be used only in rare circumstances.

At issue in Christian considerations of the death penalty is whether the government or the state has the obligation to punish criminals and defend its citizens.  Saint Paul, an early Christian evangelist, wrote in his letter to the Romans that a ruler acts as “an avenger who carries out God’s wrath on the wrongdoer.”  The Middle Ages in Europe saw thousands of murderers, witches and heretics put to death.  While church courts of this period generally did not apply capital punishment, the church did turn criminals over to secular authorities for execution.

Thirteenth-century Catholic philosopher Thomas Aquinas argued that the death penalty could be justified for the greater welfare of society.  Later Protestant reformers also supported the right of the state to impose capital punishment.  John Calvin, a Protestant theologian and reformer, for example, argued that Christian forgiveness did not mean overturning established laws....

Among Christian leaders, Pope Francis has been at the forefront of arguing against the death penalty. Saint John Paul II also maintained that capital punishment should be reserved only for “absolute necessity.”  Pope Francis observes that the death penalty is no longer relevant because modern prisons prevent criminals from doing further harm. Pope Francis speaks of a larger ethic of forgiveness.  He emphasizes social justice for all citizens as well as the opportunity for those who harm society to make amends through acts that affirm life, not death.

For many, the debate is about the relationship between Christ’s call for forgiveness and the legitimate powers of the state.  Those Christians who support capital punishment argue that Jesus was talking about heavenly realities, not the earthly matters that governments have to deal with.  Christians who oppose the death penalty say that being Christian means bringing heavenly realities to the here and now.  This debate is not just about capital punishment, but about what it means to be a Christian.

Illinois Law Review creates big online symposium to mark Prez Trump's first 100 Days

Via email I learned of an impressive and well-timed project completed by the Illinois Law Review: publication of this online symposium on President Trump's First 100 Days with 31(!) folks analyzing various aspects of the activities of the new Administration. Sadly, there is no commentary in the collection focused specifically on sentencing and punishment issues, but here is just a handful of the pieces that are connected in various ways to various issues covered on this blog:

• "President Trump and the Judiciary" by Jason Mazzone

• "Federalism Flashpoints in Trump’s First 100 Days" by Vikram David Amar

• "Police Reform During the Trump Administration" by Stephen Rushin

• "The Myth of Millions: Voter Fraud and the Trump Administration’s Impact on Voter-ID Litigation in the First 100 Days" by Lindsey Ruta Lusk

• "Risky Business?: The Trump Administration and the State-Licensed Marijuana Industry" by Robert Mikos

"Rethinking Federal Diversion: The Rise of Specialized Criminal Courts"

The title of this post is the title of this notable new paper authored by Christine Scott-Hayward now available via SSRN. Here is the abstract:

Over the last five years, there has been a proliferation in the federal system of front-end specialized criminal courts. Most of these courts are drug courts, but there are also veterans courts, courts for youthful defendants, and new "alternative to incarceration" courts. Although these courts are often described as "diversion" courts, most of them do not offer true diversion, whereby a defendant does not receive a criminal conviction. They have received significant support from a variety of stakeholders, including former Attorney General Eric Holder.

This paper explores the origins and development of front-end federal specialized criminal courts, and situates them in the existing landscape of diversion and alternative to incarceration laws and programs, particularly those in the federal criminal justice system. It argues that their rapid expansion in such a short time is problematic for a variety of reasons.

First, it is not clear what are the goals of these courts. Second, the use and effectiveness of specialized criminal courts in general is complicated; research on drug and other specialized courts in both the state and federal systems shows mixed results on measures such as recidivism reduction, cost-savings, and treatment outcomes. In addition, there are significant procedural and other equity concerns with specialized criminal courts. Third, although some of these new federal front-end specialized criminal courts show high completion rates, none has been formally evaluated, and publicly available documents about them raise questions about the extent to which they conform to evidence-based practices and their compliance with federal sentencing law. This article discusses the future of federal diversion and alternatives to incarceration, and suggests some ways to ensure that existing and future specialized criminal courts can achieve their goals. It also explores some other reforms that may achieve these same goals.

Arkansas completes fourth execution in a week, but not without apparent problems

As reported in this new NBC News article, the "lawyer of a convicted killer who was put to death by lethal injection Thursday has demanded an investigation after his client repeatedly convulsed during the 'horrifying' execution." Here is more:

Media witnesses reported "coughing, convulsing, lurching, jerking" for a 10 to 20 second period during the execution of Kenneth Williams at the Cummins Unit, where the Arkansas death chamber is housed.

The allegations come amid questions around the use of the controversial lethal injection drug midazolam. The state's stocks of the drug were due to expire and it has been racing to execute a record number of inmates — Williams was the fourth to be executed inside of a week.

"This is the most I've seen an inmate move three or four minutes in," said Associated Press reporter Kelly Kissel, who witnessed his tenth execution Thursday night. Kissel explained that Williams "lurched" 15 times in quick succession, followed by five slower lurches, three minutes after the sedative midazolam was introduced.

Kissel said two other witnesses from local media organizations agreed with his assessment and also said that Williams could be heard after the microphone to the death chamber was turned off. Williams' attorney called for an investigation and called the descriptions "horrifying."

"This is very disturbing, but not at all surprising, given the history of the risky sedative midazolam, which has been used in many botched executions," said Shawn Nolan, an attorney who had taken up Williams case two weeks prior to the execution. "What's important right now is that all the information about tonight's execution must be meticulously documented and preserved so that we can discover exactly what happened in that execution chamber."

State officials pushed back against the allegations that the execution might have been "botched" and allegations it did not follow the protocol. J.R. Davis, spokesman for Arkansas Gov. Asa Hutchinson, described the lurches as "involuntary muscular reaction to the midazolam." Though he had not witnessed the execution, he said the medical community supported the drug's safe use and that this reaction did not mean the procedure had been painful....

Nolan, called Davis' explanation "trying to whitewash the reality of what happened" and he called for a full investigation. "We tried over and over again to get the state to comport with their own protocol to avoid torturing our client to death, and yet reports from the execution witnesses indicate that Mr. Williams suffered during this execution," Nolan said in a statement.

"Any amount of movement he might've had was far less than any of his victims," said Jodie Efird, one of the victim's daughters who attended the execution. Williams had been serving a life sentence for the Dec. 1998 murder of a University of an Arkansas-Pine Bluff cheerleader. Then 20, the inmate escaped after only serving a month at the Cummins Unit by hiding inside a barrel of pig slop that a garbage truck had removed from the prison grounds. The former gang member shot and killed Cecil Boren, stole his truck, led police on a high-speed pursuit and killed another man, Michael Greenwood, in a resulting car accident. A jury sentenced Williams to death for the 1999 murder of Boren, a 57-year-old former warden of the prison where Williams was executed....

Arkansas Department of Correction Spokesman Solomon Graves said that the lethal injection was administered at 10:52 p.m. local time (11:52 p.m. ET) and Williams was declared dead at 11:05 p.m. Williams, 38, was scheduled to die at 7 p.m. local time (8 p.m. ET). Williams' execution was delayed more than three hours because of attempts by his lawyers before a state court and the U.S. Supreme Court to stop it. Shortly after 10 p.m. the U.S. Supreme Court declined to stop the execution.

"Criminal Law as Family Law"

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

The criminal justice system has expanded dramatically over the last several decades, extending its reach into family life.  This expansion has disproportionately and negatively impacted Black communities and social networks, including Black families.  Despite these pervasive shifts, legal scholars have virtually ignored the intersection of criminal, family, and racial justice.

This Article explores the gap in literature in two respects.  First, the Article weaves together criminal law, family law, and racial justice by cataloging ways in which the modern criminal justice state regulates family life, particularly for Black families.  Second, the Article examines the depth of criminal justice interference in family life and autonomy through analysis of the impact of community supervision on families.  These explorations reveal that community supervision, and criminal justice more broadly, operate as a de facto family law regime, negatively restructuring Black family autonomy, stability and loyalty, all of which family law seeks to promote.  The Article recommends that the practice of community supervision return to its roots in human services and calls on legal scholars to focus critical attention on criminal law’s creation of disparate and unequal family law systems.

Interesting new survey data on various criminal justice reform issues from Charles Koch Institute

This press release from the Charles Koch Institute reports a few highlights and provides this link to a set of really interesting survey data on a set of criminal justice reform questions.  Here are the basics from the press release:

The Charles Koch Institute (CKI) ... released a poll surveying 1,200 American voters who participated in the 2016 presidential election about their views on criminal justice issues such as civil asset forfeiture, overcriminalization, and mandatory minimum sentencing.

The results, which represent responses from a broad range of Americans — including voters who identify as liberals, moderates, and conservatives — suggest significant support for criminal justice reform. Notably, this support even comes from Trump voters: When asked whether criminal justice reform is a priority for the country, 81 percent of Trump voters described the issue as either “very important” (34 percent) or “somewhat important” (47 percent). Trump voters were also more likely to have experience with the criminal justice system, as 54 percent of them reported knowing someone who is or has been incarcerated.

When asked about civil asset forfeiture, 59 percent of Trump voters either “strongly disagreed” (28 percent) or “disagreed” (31 percent) that police should have the right to seize private assets of a suspect even if that individual is never prosecuted. Furthermore, when asked if judges should have more freedom to assign forms of punishments other than prison (such as civil or community service), 63 percent of Trump voters “strongly agreed” (26 percent) or “agreed” (37 percent).

“There appears to be an appetite among conservatives to get ‘right-on-crime,’” said Vikrant Reddy, a senior research fellow with CKI. “Conservatives have been observing the criminal justice system, and they have opinions on how to make it better. In short, they want reforms that prioritize public safety, respect individual rights, and advance human dignity.”

For any and all would-be criminal justice reform advocates, the detailed particulars of the full poll results are worth checking out.  The poll probed all sorts of interesting concepts by asking whether respondents agreed or disagreed with statements like "it's important to have mandatory minimum sentences" and "possession of drugs should not be met with prison time" and "too many people are in prison for non-violent crimes" and "the current criminal justice system unfairly targets racial minorities."

Does acceptance of a commutation moot a prisoner's collateral legal challenge to a prison sentence he is still serving?

The complicated question in the title of this post is the issue addressed in a complicated set of opinions issued by various members of the en banc Fourth Circuit as the full court dismissed as moot the long-running case of Raymond Surratt in US v. Surratt, No. 14-6851 (4th Cir. April 21, 2017) (available here).  As the latest opinion in Surratt reveals, I was involved in this case as an amicus, but I had largely forgotten that fact given that the Surratt panel opinion, as noted here, was decided nearly two years ago and oral argument before the en banc Fourth Circuit took place more than a year ago. 

I surmise that the en banc Fourth Circuit was deeply divided on the procedural and substantive issues that the complicated Surratt case presented and that a mootness ruling served as a convenient way to dispose of a hard case thanks to the deus ex machina of Prez Obama's grant of clemency to Raymond Surratt.  I am surely biased in this view because I served as an amicus in the case, but also because I think these passages from Judge Wynn's dissent make a pretty solid case against mootness:

Here, there is no dispute that if we vacate Petitioner’s commuted sentence and remand for resentencing, Petitioner will likely face a sentence shorter than that imposed by the commutation. In particular, whereas the President commuted Petitioner’s life sentence to 200 months’ imprisonment, Petitioner’s applicable Guidelines range is 120 to 137 months, less than his time-served.  Accordingly, Petitioner has a continuing “concrete interest” — namely, his liberty — in having us vacate his current sentence and remand for resentencing under the applicable Guidelines.  We and other courts have found arguably substantially less significant interests adequate to preclude mootness. See, e.g., Townes v. Jarvis, 577 F.3d 543, 547 (4th Cir. 2009) (holding that the petitioner’s release from prison did not moot his collateral challenge to his sentence because a favorable appellate decision could “affect the length of his parole”); Richards v. United States, 212 F.2d 453, 454 (D.C. Cir. 1954) (holding that defendant’s collateral challenge to the lower end of his sentencing range was not moot, even though defendant had already served more than that lower end, because “there is some possibility” that having a longer minimum sentence “may in some indirect way affect him adversely in the future”).

I am not alone in my view that an injustice continues by declaring this matter now moot. Indeed, the Seventh Circuit, the only circuit that appears to have squarely addressed the issue, refused to find mootness in analogous circumstances, holding that a petitioner may collaterally challenge his original sentence, notwithstanding that the challenged sentence was commuted during the course of litigating that collateral challenge, when the commuted sentence exceeds the mandatory minimum the petitioner would face if he prevailed on his collateral challenge.  See Simpson v. Battaglia, 458 F.3d 585, 595 (7th Cir. 2006); Madej v. Briley, 371 F.3d 898, 899 (7th Cir. 2004).  In Simpson, for example, after the petitioner filed a habeas petition challenging his death sentence, the Governor of Illinois commuted the petitioner’s sentence from death to life imprisonment without parole. 458 F.3d at 595.  Like the government does here, the State argued that the commutation rendered the petitioner’s collateral challenge to his sentence nonjusticiable, and therefore moot, because of the petitioner’s decreased sentence and “the executive nature of his confinement.” Id.  The Seventh Circuit rejected both arguments, explaining that because the petitioner would face a mandatory minimum of 20 years’ imprisonment if he prevailed on his collateral attack, as opposed to the life sentence imposed by the Governor, “it [wa]s possible for [the petitioner] to obtain relief, and his sentencing claims [we]re not moot.” Id. Put differently, “[a] full remedy for the constitutional shortcoming at the original sentencing hearing entails allowing [the petitioner] to seek that lower sentence now.” Id. (second alteration in original) (quoting Madej, 371 F.3d at 899).

I presume Raymond Surratt could opt to seek Supreme Court review of the Fourth Circuit's decision that his collateral challenge to his old/new sentence is moot. But, ironically, the Fourth Circuit's mootness claim may arguably get stronger in the very process of cert review, at least functionally if not legally, because Surratt likely will have finished serving his 200 months in federal prison by the time the Supreme Court could get around to taking up and hearing Surratt's challenge to the Fourth Circuit's mootness conclusion.

Noting state efforts to reform probation sentences and practices

Though considerable attention is now given the the two million plus individuals incarcerated in the United States, much less attention is typically given to the significantly larger population subject to probation.  (This latest BJS accounting details that at year-end 2015, an estimated 2,173,800 persons were incarcerated, while 3,789,800 were on probation.)  But this new lengthy Stateline article, headlined "Doing Less Time: Some States Cut Back on Probation," reports that some states are starting to give more attention to this important part of criminal punishment practices. Here are excerpts:

In Georgia, one in 16 adults is on probation. That’s almost four times the national average.  And offenders there spend more than twice as long on probation as in the rest of the country, sometimes as long as 20 years or life.  Meanwhile, probation officers juggle as many as 400 cases at a time.  The state is looking to change all that.

At the behest of Republican Gov. Nathan Deal, who has focused his efforts on revising the state’s criminal justice system, Georgia lawmakers passed a probation reform bill in March. The bill would, among other things, shorten probation sentences and reduce the caseloads of probation officers who are spread thin.  If Deal signs the bill as expected, the new law will go into effect July 1.

Georgia joins several other states that are looking for ways to reduce the time that offenders spend on probation or parole, as they’ve sought to reduce sentences for lesser crimes, and reduce jail and prison overcrowding.  The idea is to ease burdens on probation officers, devote resources to monitoring more dangerous offenders, help offenders re-enter society, and reduce recidivism rates.

Michigan Gov. Rick Snyder, a Republican, last month signed into law a package of bills that will, among other things, minimize punishments for “technical violations” of probation and allow judges to shorten probation time for good behavior.  Meanwhile, South Dakota, which has worked to update its probation system since 2014, last month enacted a law that allows people convicted of lesser crimes to be discharged from probation after a year for good behavior.

Minnesota lawmakers proposed bills last month that would reduce probation time for certain offenses such as misdemeanors and give courts the power to end probation terms early. Oklahoma and Louisiana have bills pending that would cut the time offenders spend on probation or parole.  Since 2012, Alabama and Hawaii have shortened probation terms.

Changing probation laws is popular with many lawmakers, from fiscal conservatives worried about the rising costs of criminal justice to social justice advocates concerned that too many people are locked up. The bills typically pass with overwhelmingly bipartisan support — measures in Georgia and Michigan, for example, passed unanimously. “It benefits the state as a whole, no matter who you are and what perspective you come from,” said Republican state Sen. John Proos, who sponsored the Michigan bill.

The moves also are favored by probation officers, who monitor people on probation or parole.  “I see this as a good thing. Shorter terms and fewer conditions for probation allow people to become more productive citizens,” said Marcus Hodges, president of the National Association of Probation Executives.

Too often, he said, people on probation are saddled with too stringent conditions, which make it more likely that they will violate the terms of their probation and end up back behind bars.  “I’ve got to ask the question, ‘Are we setting them up for failure?’ ” Hodges said.  “This whole notion of the probation to prison pipeline is something that we’ve got to look at.”...

Most states cap the amount of time that a person can be put on probation.  But in Georgia, felony probation can stretch on indefinitely, said Marissa McCall Dodson, the policy director of the Southern Center for Human Rights who helped craft the Georgia bill.  That’s one of the contributing factors that make Georgia the state with the highest probation rate in the country.  Under the new law, probationers will have the right to ask to have their probation terminated after three years. And for certain low-level offenses, probation officers will automatically put in a request for early termination of probation after three years. Probationers still have to meet the terms of their probation....

The push to overhaul probation comes in the wake of efforts to reduce jail and prison populations by reducing sentences for lesser offenses and moving many offenders to probation instead of serving jail or prison time.  “Probation has been touted as a better option than incarceration, particularly for states struggling with unsustainable prison growth,” said Rebecca Silber of the Vera Institute, a research organization that advocates for changes in the criminal justice system.  “But it doesn’t come without costs.  And one of those costs is that probation can keep people in very serious legal jeopardy for very minor violations.”...

One approach that states have used to reduce their probation populations is using “earned discharge,” which allows probationers to earn time off for complying with the conditions of their sentences, such as completing a drug treatment program.  Missouri started using this approach in 2012, and in three years, 36,000 probationers and parolees were able to reduce their probation terms by an average of 14 months.  Caseloads dropped by 18 percent, with no increase in recidivism rates.

"Mandatory Minimum Policy Reform and the Sentencing of Crack Cocaine Defendants: An Analysis of the Fair Sentencing Act"

The title of this post is the title of this notable new article by David Bjerk just published by the Journal of Empirical Studies. Here is the abstract:

The Fair Sentencing Act of 2010 (FSA) affected the U.S. federal mandatory minimum sentencing laws for crack cocaine offenders, and represented the first congressional reform of sentencing laws in over 20 years.  A primary goal of this legislation was to lessen the harshness of sentences for crack cocaine offenders and decrease the sentencing gap between crack defendants and powder cocaine defendants.  While the mean sentence length for crack offenders fell following the implementation of the FSA, these changes appear to primarily reflect the continuation of ongoing sentencing trends that were initiated by a variety of noncongressional reforms to federal sentencing policy that commenced around 2007.  However, the FSA appears to have been helpful in allowing these trends to continue past 2010.

Sixth Circuit to review en banc Ohio's execution protocol ... on a pace likely to preclude executions for at least a few more months

As indicated in this short order, yesterday the Sixth Circuit announced that it would be rehearing en banc the State of Ohio's appeal of the lower court stay issued earlier this year which blocked Ohio from using its latest three-drug protocol to execute condemned murderers.  A few weeks ago, a divided three-judge panel upheld the trial court's stay, but now the full Sixth Circuit (apparently absent one recused judge) will hear oral argument on these matters on June 14.

One key issue in the Ohio lethal injection litigation concerns that state's plan to use midazolam as the first drug in the execution process.  The apparent recent success that Arkansas has had with a similar protocol using midazolam now seems likely to be part of the discussion and debate before the full Sixth Circuit.

Because the lower court stay remains in place as the full Sixth Circuit take up this issue, Ohio's Gov Kasich is certainly going to have to reschedule at least two slated executions.  As detailed on this Execution Schedule page from the Ohio Department of Rehabilitation & Correction, Ronald Phillips is currently scheduled for execution on May 10, and another inmate has a June 13 execution date.  Though it seems likely the en banc Sixth Circuit will seek to rule not long after it hears oral argument (and it usually makes sense to assume that a vote for en banc review will lead to a different outcome than the prior panel decision), I am not sure it would be wise for Ohio to assume it will have an execution green light by its July 26 execution date.

As the Ohio DRC execution page details, Ohio has already scheduled executions for 33 Ohio inmates(!) running all the way through 2021(!).  So if the Sixth Circuit (and ultimately the Supreme Court) eventually upholds the state's latest execution protocol, Ohio could be on a path to having more executions in the next few years than perhaps any and every other state in the nation.

Prior recent related posts:

• Ohio planning to use new three-drug execution protocol to get its machinery of death operative in January 2017
• Defense attorneys assert Ohio's new execution protocol is akin to "burning at the stake"
• Federal magistrate judge rules Ohio's new 3-drug lethal injection protocol is unconstitutional and blocks coming scheduled executions
• Split Sixth Circuit panel upholds injunction blocking Ohio lethal injection protocol

Noting reasons for the recent drop in the federal prison population mitigating overcrowding at BOP facilities

The US Courts yesterday posted this notable short piece under the heading "Policy Shifts Reduce Federal Prison Population." The piece details the significant decline in the federal prison population in the last few years and also highlights reasons for it:

A decline in the number of federal prosecutions and in the severity of sentences for drug-related crime in recent years has resulted in a significant drop in the federal prison population, according to statistics from the Judiciary, the U.S. Sentencing Commission (USSC), and the Bureau of Prisons (BOP).

The federal prison population fell from a peak of nearly 219,300 inmates in 2013 to 188,800 in April 2017, a nearly 14 percent reduction, according to BOP statistics.  The decrease reflects a dramatic shift in federal policies away from stiff penalties for drug trafficking and other drug-related offenses in recent years.  It also has mitigated overcrowding at BOP facilities -- the inmate population, once at 37 percent overcapacity, is now at 13 percent overcapacity.

Changes in sentencing guidelines are a major contributor to the inmate population decline.  In 2011, the USSC implemented lower crack cocaine penalties in line with the Fair Sentencing Act passed by Congress the year before.  The new guidelines were made retroactive, which resulted in the release of prisoners who had already served their time under the new guidelines.  Because drug crimes account for nearly a third of all criminal filings in federal courts, changes in drug sentences have a big impact on the federal prison population....  In 2014, the commission took the step of cutting the length of sentences for all drug trafficking offenses, not just crack cocaine.  Sentences were reduced by about 25 percent, and the changes were also made retroactive....

Other factors contributing to the decreasing prisoner population:

• Federal prosecutions for all crimes have declined over the past five years.  Criminal cases were brought against 77,357 defendants in fiscal year 2016, the lowest total since fiscal 1998, according to the Administrative Office of the U.S. Courts.  Last year, 67,742 defendants were convicted and sentenced, compared to 86,201 in 2011, the USSC reports.  However, the trend could slow or reverse in the coming months as new Attorney General Jeff Sessions and the Trump administration step up prosecutions of drug-related crime and immigration offenses.

• Two Supreme Court rulings since 2015 resulted in sentence reductions for about 1,200 inmates.  The court in Johnson v. United States found that one of the definitions of a violent felony under the Armed Career Criminal Act was unconstitutionally vague.  A subsequent high court decision made the Johnson ruling retroactive, which prompted thousands of prisoners to petition for review of their cases.  Many of those cases are still under review by the lower courts.

ACLU announces "new multi-year initiative to overhaul the power wielded by prosecutors"

Via email I learned of this notable new ACLU press release describing a notable new ACLU initiative.  Here are the details from the release:

As part of its effort to achieve a 50 percent reduction in the U.S. jail and prison population, the ACLU Campaign for Smart Justice today announced a new multi-year initiative to overhaul the power wielded by prosecutors.  District attorneys are major drivers of mass incarceration, lacking accountability and transparency, and posing obstacles to criminal justice reform. The ACLU's initiative includes a series of high-impact, locally driven prosecutorial reform campaigns in a number of states across the country, beginning in Philadelphia where #VoteSmartJustice is underway to educate voters about the district attorney race in the May 16 primary. #VoteSmartJustice is working closely with the ACLU state affiliate and on-the-ground advocates to pursue litigation, legislative advocacy, and nonpartisan voter education — a model that other prosecutorial reform campaigns will follow.

“We will never truly transform our nation’s criminal justice system and end our addiction to mass incarceration until we hold prosecutors accountable,” said Udi Ofer, director of the ACLU’s Campaign for Smart Justice.  “Prosecutors are the most powerful, unaccountable, and least transparent actors in the criminal justice system.  This new effort seeks to not only rid our justice system of bad actors who exploit and abuse unchecked powers, but also to elevate and empower a new generation of prosecutors committed to reducing incarceration.  Particularly during the era of President Trump and Attorney General Sessions, the nation needs local prosecutors who will stand up to unjust federal initiatives and build a smarter and fairer criminal justice system.”

Approximately 3,000 prosecutors throughout the country are responsible for making decisions that affect the lives of millions of people.  The public knows too little about prosecutors and their impact on communities.

Although the mandate of prosecutors is to advance justice, many district attorneys have focused on punishment at any cost.  This approach has increased the jail and prison population; led to sentences that are too severe for the offenses; produced more wrongful convictions and more death sentences; and sent people with addictions, disabilities, and mental health conditions into jails and prisons who should receive treatment or other social services instead. These consequences of unchecked prosecutorial power burden people of color and the poor disproportionately.

To redirect prosecutors’ focus towards reducing mass incarceration, the Campaign for Smart Justice will use its prosecutorial reform initiative to pursue a series of high-impact, locally driven efforts. Together with the ACLU’s state affiliates and on-the-ground advocates, the initiative will follow a three-prong strategy:

• Litigation: The initiative is hiring new litigators to file ten lawsuits aimed at holding prosecutors accountable and changing their policies and practices.

• Legislative advocacy: The initiative will serve as a clearinghouse for prosecutor reform legislation, actively supporting the passage of key reform measures in ten states.

• Voter education: The initiative will engage in nonpartisan efforts in ten prosecutorial elections, conducting voter education about the role that local prosecutors play in fueling mass incarceration.

The first of the initiative’s efforts is underway in Philadelphia, where the Campaign for Smart Justice is working closely with the ACLU of Pennsylvania to conduct an aggressive voter education effort before the May 16 primary.  Dubbed #VoteSmartJustice, this effort has trained dozens of canvassers, most of whom are formerly incarcerated individuals advocating for criminal justice reform, to blanket neighborhoods throughout the city to inform voters about the election and underscore the importance of holding prosecutor candidates accountable for their records.  Among the people to be targeted are the 11,000 ACLU members who are registered to vote in Philadelphia.

“Pennsylvania has the highest rate of incarceration in the Northeast, costing taxpayers $2.5 billion on prisons in 2015 alone,” said Reggie Shuford, of the ACLU of Pennsylvania.  “The impact of that staggering high incarceration rate is felt the hardest here in Philadelphia, and prosecutors have been a major driver of that reality.  This campaign will ensure voters are equipped with information about where the candidates stand on critical issues, and encourage them to demand that, in exchange for their support at the ballot box, candidates must commit to using their power responsibly, fairly, and justly.”

For more information about #VoteSmartJustice: https://votesmartjustice.org/home

"Penal Incapacitation: A Situationist Critique"

The title of this post is the title of this recent paper authored by Guyora Binder. The piece appears to have come out on SSRN earlier this year, but I just now came across it. Here is its abstract:

Incapacitation of offenders has been an influential goal of criminal justice policy during the era of mass incarceration. The Supreme Court’s Eighth Amendment Jurisprudence has accepted incapacitation alone as a justifying purpose for recidivist sentencing enhancements. Yet recent Eighth Amendment decisions have required that severe sentences of incarceration be justified by reference to all purposes of punishment cumulatively, and have tested claims of incapacitative benefits against empirical evidence.

This Article critiques penal incapacitation as both theoretically and empirically flawed. Incapacitation theory underestimates situational factors contributing to crime, over-attributes dangerousness to individuals, and fails to account for crime committed in prison. These flaws preclude incapacitation from rationally justifying recidivist sentence enhancements as preventive. In addition, they support a critical interpretation of penal incapacitation as an expressive practice of segregating and stigmatizing offenders on the basis of status and disposition rather than conduct and desert. These weaknesses may prevent incapacitation from justifying lengthy recidivist sentences under the more demanding proportionality standard applied in recent Eighth Amendment cases.

Oklahoma commission recommends continued moratorium on executions due to "volume and seriousness of the flaws" in state's capital punishment system

As reported in this local article, "two years after the state of Oklahoma last carried out an execution, a commission spearheaded by former Gov. Brad Henry has recommended extending a current moratorium on the death penalty in Oklahoma."  Here is more:

"Due to the volume and seriousness of the flaws in Oklahoma's capital punishment system, Commission members recommend that the moratorium on executions be extended until significant reforms are accomplished," Henry said in a news release.

Executions in Oklahoma have been on hold since Oct. 1, 2015, the day after Richard Glossip received his third stay of execution because the Oklahoma Department of Corrections did not have the right drugs as specified in the DOC’s lethal injection protocol. A multicounty grand jury issued a highly critical report nearly a year ago related to multiple agencies’ handling of Glossip’s case and the January 2015 execution of Charles Warner, and it doesn’t appear as though anyone involved is any closer to being able to resume the use of capital punishment.

The Oklahoma Death Penalty Review Commission had 10 full-day meetings, held numerous conference calls, commissioned independent studies and conducted interviews with people from all sides of the issue, including with family members of people who were wrongfully convicted. "Many of the findings of the Commission's investigation were disturbing and led members to question whether the death penalty can be administered in a way that ensures no innocent person is put to death," Henry said in the release.

The commission is making 40 recommendations to address systemic problems in forensics, innocence protection, the execution process, and the roles of the prosecution, defense, jury and judiciary, according to the news release.

The full report from the Oklahoma Death Penalty Review Commission runs nearly 300 pages and is available at this link.  Here is a passages from the report's executive summary:

In light of the extensive information gathered from this year-long, in-depth study, the Commission members unanimously recommend that the current moratorium on the death penalty be extended.

The Commission did not come to this decision lightly. While some Commission members had disagreements with some of the recommendations contained in this report, there was consensus on each of the recommendations.  Due to the volume and seriousness of the flaws in Oklahoma’s capital punishment system, Commission members recommend that the moratorium on executions be extended until significant reforms are accomplished.

Many of the findings of the Commission’s year-long investigation were disturbing and led Commission members to question whether the death penalty can be administered in a way that ensures no innocent person is put to death. Commission members agreed that, at a minimum, those who are sentenced to death should receive this sentence only after a fair and impartial process that ensures they deserve the ultimate penalty of death.  To be sure, the United States Supreme Court has emphasized that the death penalty should be applied only to “the worst of the worst.”  Unfortunately, a review of the evidence demonstrates that the death penalty, even in Oklahoma, has not always been imposed and carried out fairly, consistently, and humanely, as required by the federal and state constitutions.  These shortcomings have severe consequences for the accused and their families, for victims and their families, and for all citizens of Oklahoma.

"Designed to Break You: Human Rights Violations on Texas' Death Rows"

The title of this post is the title of this new report released yesterday by the Human Rights Clinic of the University of Texas School of Law. Here is part of its executive summary:

This report demonstrates that the mandatory conditions implemented for death row inmates by the Texas Department of Criminal Justice (TDCJ) are harsh and inhumane. Particular conditions of relevance include mandatory solitary confinement, a total ban on contact visits with both attorneys and friends and family, substandard physical and psychological health care, and a lack of access to sufficient religious services. Investigation into these conditions reveals that current TDCJ policy violates international human rights norms and standards for confinement.  Conditions on death row at TDCJ’s Polunsky Unit must be remedied posthaste.

In 1999, Texas reintroduced the practice of mandatory solitary confinement for every individual convicted of capital murder.  Solitary confinement involves total segregation of individuals who are confined to their cells for twenty-two to twenty-four hours per day, with a complete prohibition on recreating or eating with other inmates.  An average cell is no bigger than 8 feet by 12 feet, and contains only a sink, a toilet, and a thirty-inch-wide steel bunk with a thin plastic mattress.  Inmates are rarely provided with adequate blankets and often suffer from ongoing physical pain due to the mattress provided.  The majority of cells include a small window, but inmates are only able to see out by rolling up their mattress and standing on it.  This fact paired with the lack of adequate outdoor recreation time means that daily exposure to natural light is rare.  Every individual on Texas’ death row thus spends approximately 23 hours a day in complete isolation for the entire duration of their sentence, which, on average, lasts more than a decade.  This prolonged solitary confinement has overwhelmingly negative effects on inmates’ mental health, exacerbating existing mental health conditions and causing many prisoners to develop mental illness for the first time.  In addition to the detrimental effects of isolation, the practice of setting multiple execution dates means that many prisoners are subjected to the psychological stress of preparing to die several times during their sentence.

Inmates on death row experience severe barriers to accessing medical care, in part due to being housed in solitary confinement and being less able to effectively self-advocate. Inmates are not offered regular physical or psychological check-ups, and must rely on the guards to communicate and facilitate any healthcare appointments.  Such requests for care are, at best, responded to within a few days, but can go several weeks without a response and are often ignored or forgotten about.  In terms of psychological healthcare -- an issue of great importance given that a large majority of inmates on death row suffer from some form of psychological illness -- only inmates who were already taking psychiatric medication are able to meet regularly with psychiatrists.  Of those inmates who are eventually given access to psychological care, they are generally only prescribed some form of psychiatric medication, thus exacerbating the unmet need for some form of counseling or non-pharmaceutical therapy. Inmates with mental illness who do not necessarily want or need prescription drugs are essentially provided with only two options: take unwanted medication, or forgo psychological healthcare entirely.

Another major issue of concern is the lack of access to religious services on death row.  The extent to which inmates are able to access religious text is limited, as Christian bibles are the only material available from the prison chaplain.  Although Christian inmates can request such materials, they are rarely given access to ministers until the holiday season.  For inmates of different faiths, such as Islam or Judaism, the situation is more difficult as they must solely rely on outside sources for their religious materials.  They are provided with no access to practice their chosen faith, and are often met with contempt when seeking such access.  This has created a harsh environment for inmates who do not adhere to Christianity, and has enabled a discriminatory system on the basis of religion on Texas’ death row.

This report, prepared by the Human Rights Clinic at the University of Texas School of Law, concludes that current conditions in TDCJ facilities constitute a violation of Texas’s duty to guarantee the rights to health, life, physical integrity, and dignity of detainees, as well as its duty to prevent cruel, inhuman or degrading treatment of its inmates. These duties are recognized by human rights instruments such as the Universal Declaration of Human Rights, and the American Declaration on the Rights and Duties of Man.  The Inter-American Commission on Human Rights and other human rights bodies have repeatedly issued opinions decrying the inhumane conditions present at the Polunsky Unit. Particularly, international human rights bodies had considered that the prolonged and mandatory use of solitary confinement is “disproportionate, illegitimate, and unnecessary”.

"An Indigent Criminal Defendant is Entitled to 'An Expert of His Own'"

The title of this post is the title of this short and timely new piece authored by Fredrick Vars now available via SSRN. Here is the abstract:

The Supreme Court yesterday (April 24, 2017) heard the case of an Alabama death row inmate, James McWilliams. A thus far overlooked argument could save his life and help level the playing field in other capital cases. The Court in 1985 promised independent expertise. Now is its chance to make good on that promise.

For more on the issue presented and SCOTUS oral argument in McWilliams v. Dunn, folks can check out this recent SCOTUSblog posting by Amy Howe titled "Argument analysis: Nine justices, with five votes for death row inmate?" and/or this new Slate commentary by Dahlia Lithwick titled "Back at the Supreme Court, After Garland: It’s strange being back in this place, and stranger still to hear them debate lunacy."

Arkansas successfully completes two execution in one night

As reported in this AP article, Arkansas has completed the nation's first double execution in nearly two decades.  Here are the basic details:

Arkansas has put to death inmate Marcel Williams, marking the first double execution in the United States since 2000.

Williams was pronounced dead at 10:33 p.m. Monday, 17 minutes after the procedure began at the Cummins Unit in southeast Arkansas. Inmate Jack Jones was executed earlier in the evening.

Williams was sent to death row for the 1994 rape and killing of 22-year-old Stacy Errickson, whom he'd kidnapped from a gas station in central Arkansas....

Attorneys for Marcel Williams had questioned whether the night's first execution of Jack Jones went properly. U.S. District Judge Kristine Baker issued the stay for Williams, then, lifted it about an hour later — at 9:22 p.m....

Jones was pronounced dead at 7:20 p.m. Monday at the state's Cummins Unit in southeast Arkansas.... Jones was sent to death row for the 1995 rape and killing of Mary Phillips.  He was also convicted of attempting to kill Phillips' 11-year-old daughter and was convicted in another rape and killing in Florida.

UPDATE:  Bill Otis over at Crime & Consequences has this extended new post contending that the double execution in Arkansas "may be remembered as the moment the movement to abolish the death penalty started back downhill after many years of gaining ground."

Marshall Project highlights tens of thousands imprisoned for minor parole violations

The Marshall Project has this interesting new report on technical parole violations and their consequences headlined "At Least 61,000 Nationwide Are in Prison for Minor Parole Violations." Here is how it starts:

Among the millions of people incarcerated in the United States, a significant portion have long been thought to be parole violators, those who were returned to prison not for committing a crime but for failing to follow rules: missing an appointment with a parole officer, failing a urine test, or staying out past curfew.

But their actual number has been elusive, in part because they are held for relatively short stints, from a few months to a year, not long enough for record keepers to get a good count.   To help fill the statistical gap, The Marshall Project conducted a three-month survey of state corrections departments, finding more than 61,250 technical parole violators in 42 state prison systems as of early 2017.

These are the inmates who are currently locked up for breaking a rule of parole, rather than parolees who have been convicted of a new crime; the number does not include those in county and local jails, where thousands more are likely held. (The eight remaining states — Alabama, Connecticut, Louisiana, North Carolina, Oklahoma, South Carolina, Tennessee, and Virginia — said either they did not keep current state-level data or it would be too costly to generate.)

The total, 61,250, seems small, given the 2.3 million people behind bars in this country. Imprisoning fewer technical violators would make only a dent in the effort to reduce mass incarceration. “But still,” said Marc Mauer, executive director of The Sentencing Project, “the numbers aren’t trivial.”

To Mauer and other experts on what drives prison and jail populations, the fact that tens of thousands of people are incarcerated for infractions such as traveling without permission or frequenting a bar that serves alcohol is significant in itself.  That may be all the more true in seven states — Arkansas, Georgia, Illinois, Kentucky, Missouri, New York, and Pennsylvania — which, according to the Marshall Project data, have more technical parole violators in their prisons than the other 35 states combined.

An empirical dive into federal "Health Care Fraud Sentencing"

The quoted title of this post is the title of this notable new Note authored by Kyle Crawford. Here is the abstract:

Health care fraud convictions are on the rise, but little is known about how health fraud offenders are sentenced.  This Note offers the first comprehensive empirical account of sentencing decisions in health fraud cases based on a new dataset constructed from United States Sentencing Commission data.  This analysis shows that there is a large disparity in how health fraud offenders are sentenced compared to other white collar offenders and general crimes offenders.  Between 2006 and 2014, health fraud offenders received fewer Guidelines-range sentences and more below-Guidelines sentences than other offenders.  This is because: (1) health fraud offenders are older, whiter, more educated, and less likely to have a criminal record than other offenders, which are demographic characteristics associated with lighter sentences; (2) judges are dissatisfied with the loss table, which is used to sentence most health fraud offenders; and (3) judges view the collateral consequences of sentencing health fraud offenders — many of whom are health professionals — as a mitigating factor.

This analysis also shows a stark difference in the number of health fraud cases brought in districts across the country.  The ten districts with the highest proportion of health fraud convictions account for nearly a quarter of all health fraud convictions. In addition, health fraud offenders go to trial more often than other offenders.  This results from the threat of severe collateral consequences — exclusion from Medicare and Medicaid and possible loss of a medical license.  These offenders have a larger incentive to go to trial than other offenders, especially because pleading guilty does not allow health fraud offenders to avoid these collateral consequences.

Capital procedure day at SCOTUS .... perhaps from early morning until late at night thanks to Arkansas

The Supreme Court this morning is hearing oral argument in two capital cases.  Here are the basics and previews via SCOTUSblog:

McWilliams v. Dunn: 

Issue: Whether, when this court held in Ake v. Oklahoma that an indigent defendant is entitled to meaningful expert assistance for the “evaluation, preparation, and presentation of the defense,” it clearly established that the expert should be independent of the prosecution.

Argument preview: What kind of help does the Constitution require for defendants in capital cases?

Davila v. Davis:

Issue: Issue: Whether the rule established in Martinez v. Ryan and Trevino v. Thaler, that ineffective state habeas counsel can be seen as cause to overcome the procedural default of a substantial ineffective assistance of trial counsel claim, also applies to procedurally defaulted, but substantial, ineffective assistance of appellate counsel claims.

Argument preview: Another Texas capital case raising a nested ineffective assistance of counsel issue 

Meanwhile, as detailed in this AP report, two condemned inmates scheduled to be executed tonight in Arkansas have been pressing unsuccessfully a variety of claims in an effort to halt their executions.  Here are the basics on two cases now all but certain to be before the Justices of the Supreme Court in some posture before the night is over:

Two Arkansas inmates scheduled to be put to death Monday in what could be the nation's first double execution in more than 16 years asked an appeals court on Sunday to halt their lethal injections because of poor health that could cause complications. Lawyers for Jack Jones and Marcel Williams asked the 8th Circuit Court of Appeals on Sunday to grant them stays of execution.

Jones' lawyers say he suffers from diabetes and is on insulin, has high blood pressure, neuropathy and had one leg amputated below the knee. He is on heavy doses of methadone and gabapentin. They say he may be resistant to the lethal injection drug midazolam because of the drugs he is taking for his maladies and could suffer a "tortuous death." Lawyers for Williams say he weighs 400 pounds and it will be difficult to find a vein for lethal injunction, so the drugs are unlikely to work as intended.

The state said the appeals are just delaying tactics and should be denied. It was not clear when the appeals court will rule....

Also on Sunday, two lower court federal judges ruled against inmates in separate cases. Judge Kristine Baker denied a request from several inmates, including Jones and Williams, that the rules for witnesses to view the executions be changed. Judge J. Leon Holmes denied a stay of execution for Williams saying that the matter should be dealt with by the 8th Circuit Court of Appeals, because the inmate had already been appealed to the higher court.

Jones and Marcel Williams are scheduled to die on Monday and another inmate, Kenneth Williams, is set for execution Thursday. Both Jones and Williams have admitted they are guilty. Williams was sent to death row in 1994 for the rape and murder of Stacy Errickson. Jones was given the death penalty for the 1995 rape and murder of Mary Phillips.

Interesting final phrase in Justice Breyer's latest pitch for SCOTUS to consider whether whether capital punishment is now unconstitutional

Via a dissent in Glossip v. Gross back in 2015, Justice Breyer explained at great length why he thought "it is now time to reopen the question" of "whether the death penalty violates the Constitution."  Since that time, Justice Breyer has made a fairly regular habit of dissenting or commenting on the denial of certiorari in capital cases with administrative problems along the lines he stressed in his Glossip dissent.  Today's SCOTUS order list includes another such statement by Justice Breyer in Smith v. Ryan, a case that involves a prisoner who has been on death row in Arizona for more than 40 years.  Here is a paragraph from the heart of Justice Breyer's statement that captures the essence of many of his capital statements since Glossip:

What legitimate purpose does it serve to hold any human being in solitary confinement for 40 years awaiting execution?  What does this case tell us about a capital punishment system that, in my view, works in random, virtually arbitrary ways?  I have previously explored these matters more systematically, coming to the conclusion that this Court should hear argument as to whether capital punishment as currently practiced is consistent with the Constitution’s prohibition of “cruel and unusual punishment.”  Amdt. 8. See Glossip v. Gross, 576 U. S. ___, ___ (2015) (BREYER, J., dissenting).  The facts and circumstances of Smith’s case reinforce that conclusion.

Because statements by Justice Breyer like this one have become fairly common, I would not have blogged about this latest effort save for one little phrase in Justice Breyer's final sentence that struck me as new and unusual.  Here is the final sentence with my emphasis added on the phrase that caught my attention:

Smith’s confinement reinforces the need for this Court, or other courts, to consider in an appropriate case the underlying constitutional question.

I took a quick look at some other capital case statements from this Term by Justice Breyer and did not see this "other courts" phrase anywhere in his prior calls for the Supreme Court to take up the constitutionality of capital punishment.  I suspect that Justice Breyer has now come fully to realize, perhaps due in part to the new addition of Justice Gorsuch, that he is not going to be able to cajole his colleagues into taking up the constitutionality of capital punishment on their own and now the issue will likely get before SCOTUS only if a lower court takes up the issue in a bold, high-profile way.

I suspect I am reading way too much into three words in a little single Justice statement concerning the denial of cert.  Still, especially with talk of a new SCOTUS vacancy this summer, I do not think I am wrong to view the next few months and years as a potential turning point in the history of capital punishment in the US.  Justice Breyer has demonstrated his interest in playing a central role in defining the future of the death penalty, and this latest little statement perhaps reflects a realization that his window of opportunity to do so may be closing.

Six months after voting to speed executions, is California really getting any closer to carrying out death sentences?

The question in the title of this post is prompted by this new AP article headlined "California moves — slowly — toward resuming executions."  Here are excerpts:

California has long been what one expert calls a “symbolic death penalty state,” one of 12 that has capital punishment on the books but has not executed anyone in more than a decade.

Prodded by voters and lawsuits, the nation’s most populous state may now be easing back toward allowing executions, though observers are split on how quickly they will resume, if at all.

Corrections officials expect to meet a Wednesday deadline to submit revised lethal injection rules to state regulators, trying again with technical changes after the first attempt was rejected in December.

The California Supreme Court, meanwhile, is expected to rule by August on challenges to a ballot initiative narrowly approved by voters in November that would speed up executions by reducing the time allowed for appeals....

California could come close to resuming executions in the next year, said law professor Robert Weisberg, co-director of the Stanford Criminal Justice Center, though others say too many variables and challenges remain to make a prediction.... The state’s proposed lethal injection regulations are patterned after a single-drug process that already passed muster with the U.S. Supreme Court, Weisberg said.

Corrections officials submitted the regulations only after they were forced to act by a judge’s ruling on behalf of crime victims angered at the state’s three-year delay. But the regulations replacing California’s old three-drug method are likely to be approved at some point, Weisberg said.

Deborah Denno, a professor at Fordham University School of Law and an expert on lethal injections, was among those who said recent revisions to the state’s proposed regulations still don’t cure underlying problems that can lead to botched executions....

California voters have eased penalties for many crimes in recent years but have repeatedly rejected efforts to end the death penalty. They did so again in November, when 51 percent approved Proposition 66, designed to speed up death penalty cases. Fifty-three percent of voters defeated a competing measure that would have abolished the death penalty. The state Supreme Court quickly blocked Proposition 66 while it considers challenges.

Appellate lawyer Kirk Jenkins, who studies the court, expects the justices will reject the proposition’s five-year deadline for deciding death row appeals because it violates the separation of powers. Death penalty appeals average at least a decade from the time a condemned inmate is assigned a post-trial lawyer to a final decision by the state’s high court, he said, and the justices already have a backlog of about 300 capital cases. “There is no possible way that the court could meet the deadlines in Prop. 66” without putting aside virtually all other decisions, Jenkins said.

The initiative also makes it easier for corrections officials to adopt new lethal injection procedures. But even a complete rejection of Proposition 66 would not derail the executions of inmates whose appeals are exhausted, Weisberg said. Those executions could proceed once the state has an approved lethal injection process.

Experts said the delays may give opponents time to mount another campaign next year asking voters again if they want to abolish the death penalty. “In California, it’s become a symbolic death penalty state,” Denno said. “Whether that is going to change or not is unpredictable.”

Making the case that older punishments may not be so much crueler than current ones

Columnist Ross Douthat has this notable new New York Times commentary headlined "Crime and Different Punishments." Here are excerpts:

The tendency in modern criminal justice has been to remove two specific elements from the state’s justice: spectacle and pain.  During the 19th and early 20th centuries, pillories and stocks and whipping posts became museum pieces, the hangman and the firing squad were supplanted by more technical methods, and punishment became something that happened elsewhere — in distant prisons and execution chambers, under professional supervision, far from the baying crowd.

All of this made a certain moral sense.  But the civilizing process did not do away with cruelty and in some ways it could exacerbate it.  With executions, the science was often inexact and the application difficult, and when it went wrong the electric chair or the gas chamber could easily become a distinctive kind of torture.  During the last century lethal injection, now the execution method of choice, had a higher “botch rate” by far than every other means of killing the condemned. Meanwhile, the lowest rate of failure (albeit out of a small sample size) belonged to that old standby: the firing squad.

Few prisoners face execution, and anti-death penalty activists may yet reduce that number to zero.  But botched injections are not the only ways in which we pile cruelties on the condemned.  Our prison system, which officially only punishes by restraint, actually subjects millions of Americans to waves of informal physical abuse — mistreatment by guards, violence from inmates, the tortures of solitary confinement, the trauma of rape — on top of their formal years-long sentences.

It is not clear that this method of dealing with crime succeeds at avoiding cruel and unusual punishment so much as it avoids making anyone outside the prison system see it.  Nor is it clear that a different system, with a sometimes more old-fashioned set of penalties, would necessarily be more inhumane....

I would rather face the firing squad than be strapped down and injected into eternity, and I would choose a strong dose of pain and shame over years under the thumb of guards and inmates and the state.

We tell ourselves that we have prisoners’ good in mind, and the higher standards of our civilization, because we do not offer them this choice.  But those standards may be less about preventing ourselves from becoming like our sinful ancestors, and more about maintaining the illusion of clean hands — while harsh punishment is still imposed, but out of sight, on souls and bodies not our own.

Notable recent work from the Prison Policy Initiative on prison wages and medical co-pays in prisons

A helpful reader made sure I did not miss some recent pieces from the Prison Policy Initiative on prison wages and medical co-pays in prisons that ought to be of interest to readers.

The piece on wages, "How much do incarcerated people earn in each state?," provides a 50-state survey of wages paid to incarcerated people. Here is a snippet:

One major surprise: prisons appear to be paying incarcerated people less today than they were in 2001.  The average of the minimum daily wages paid to incarcerated workers for non-industry prison jobs is now 87 cents, down from 93 cents reported in 2001.  The average maximum daily wage for the same prison jobs has declined more significantly, from $4.73 in 2001 to $3.39 today.  What changed?  At least seven states appear to have lowered their maximum wages, and South Carolina no longer pays wages for most regular prison jobs -- assignments that paid up to $4.80 per day in 2001.  With a few rare exceptions, regular prison jobs are still unpaid in Alabama, Arkansas, Florida, Georgia, and Texas.

The piece on medical co-pays, "The steep cost of medical co-pays in prison puts health at risk," highlights the hours it would take a low-paid incarcerated worker to earn enough for one co-pay. Here is an excerpt:

The excessive burden of medical fees and co-pays is most obvious in states where many or all incarcerated people are paid nothing for their work: Alabama, Arkansas, Florida, Georgia, Mississippi, South Carolina, and Texas.  Texas is the most extreme example, with a flat $100 yearly health services fee, which some officials are actually trying to double to $200.  People incarcerated in these states must rely on deposits into their personal accounts -- typically from family -- to pay medical fees. In most places, funds are automatically withdrawn from these accounts until the balance is paid, creating a debt that can follow them even after release.

Co-pays that take a large portion of prison wages make seeking medical attention a costly choice.  Co-pays in the hundreds of dollars would be unthinkable for non-incarcerated minimum wage earners.  So why do states think it’s acceptable to charge people making pennies per hour such a large portion of their earnings?  Some might argue that incarcerated people have nothing better to spend wages on than medical care.  But wages allow incarcerated people to buy things they need that the prison does not provide: toiletries, over-the-counter medicine, additional clothes and shoes, as well as phone cards, stamps, and paper to help them maintain contact with loved ones.  Co-pays that take a large portion of prison wages make seeking medical attention a costly choice.

"I used to support legalizing all drugs. Then the opioid epidemic happened."

The title of this post is the headline of this lengthy Vox commentary authored by German Lopez.  I recommend the piece in full even though I take issue with some of its particulars.  Here are some extended excerpts:

In terms of overdoses, the opioid epidemic is deadlier than any other drug crisis in US history — more than crack, meth, and any other heroin epidemic. In total, more than 560,000 people in the US died to drug overdoses between 1999 and 2015 (the latest year of data available) — a death toll larger than the entire population of Atlanta. And while many of these deaths are now linked to illicit drugs like heroin and fentanyl, the source of the epidemic — what got people started on a chain to harder drugs — was opioid painkillers, and legal painkillers are still linked to most opioid overdose deaths.

This was exactly what anti-legalization activists have warned about: Companies got a hold of a dangerous, addictive product, marketed it irresponsibly, and lobbied for lax rules. The government’s regulatory response floundered. The government even worked with the drug companies in some cases — under the influence of lobbying, campaign donations, and drugmaker-funded advocacy groups. And people got addicted and died.

Looking at this crisis, it slowly but surely dawned on me: Maybe full legalization isn’t the right answer to the war on drugs. Maybe the US just can’t handle regulating these potentially deadly substances in a legal environment. Maybe some form of prohibition — albeit a less stringent kind than what we have today — is the way to go.

I should be clear: I am talking about the legalization of harder drugs, so none of this applies to marijuana legalization. While there are real concerns with pot dependence and people doing stupid things on weed, my perspective is that it’s such a relatively harmless drug, according to the best scientific evidence, that the government can afford to screw it up. Especially since the alternative is a prohibition regime that leads to hundreds of thousands of needless arrests in the US each year and fosters violence as traffickers fight over turf or settle other beefs related to the drug trade.

But with the harder drugs, there’s a lot of room to mess up — as the opioid epidemic demonstrates....

Consider the US statistics: In 2015, drug overdoses killed more than 52,000 people, and more than 33,000 of those deaths were linked to opioids. That’s much more than the number of people who died to homicides: nearly 18,000 in 2015, only some of which were linked to violence in the war on drugs. Based on these figures, the legal drug led to a crisis that is killing way more people than black market–related violence possibly could.

while it is true that there are other metrics for suffering under prohibition (such as arrests), the same also applies for the opioid epidemic: There are a lot of people suffering from addiction, along with their friends, family, and broader community, yet haven’t overdosed and may never die of an overdose.

So while it’s hard to draw a perfect comparison in terms of overall suffering, the opioid epidemic, at the very least, seems to be much deadlier than violence related to drug prohibition is in the US.

Still, it’s hard to deny that the current model of prohibition has serious costs. Just like lenient regulation through legalization is dangerous, so too is excessive regulation — via punishment — through prohibition. There’s really little argument that America has been excessive in its punishment: the harsh mandatory minimum sentences, the three-strikes laws that can get someone life for drugs, and the ridiculous probation and parole rules that can get someone thrown back into prison for little more than possession. Not only can these measures cause a lot of human misery, but they also seem to be totally ineffective for actually deterring drug use.

The research is clear on this point: Severity of punishment does little to nothing to deter crime. In particular, a 2014 study from Peter Reuter at the University of Maryland and Harold Pollack at the University of Chicago found there’s no good evidence that tougher punishments or harsher supply-elimination efforts do a better job of driving down access to drugs and substance abuse than lighter penalties. So increasing the severity of the punishment doesn’t do much, if anything, to slow the flow of drugs.

As drug policy experts emphasized in a piece I reported out in 2016, there’s a lot of room for the US to relax its severity of punishment before legalization. One possibility is essentially the Portuguese model: Drugs are decriminalized for personal use, so you can’t be punished with prison time merely for possessing or using illegal substances like cocaine and heroin. But the drugs remain illegal for big companies to produce and sell for profit — effectively stopping the kind of commercialization that’s spurred the tobacco, alcohol, and opioid epidemics....

This milder form of prohibition isn’t a perfect solution. I don’t think there is a perfect solution. As with many policy debates, this is really about picking between a bunch of unsatisfactory options. Faced with an excessively harsh criminal justice system and a legal industry that carelessly causes drug epidemics, I have come down somewhere in the middle of these two extremes.

As Keith Humphreys, a drug policy expert at Stanford University, once told me, “There's always choices. There is no framework available in which there's not harm somehow. We’ve got freedom, pleasure, health, crime, and public safety. You can push on one and two of those — maybe even three with different drugs — but you can’t get rid of all of them. You have to pay the piper somewhere.” After witnessing the opioid epidemic firsthand, I have learned this lesson all too well — and I am genuinely scared of how America would pay for full legalization.;