Sentencing Law and Policy

"Time to rethink probation and parole"

The title of this post is the headline of this recent commentary authored by Larry Krasner and Miriam Krinsky. (Kranser, as many readers surely know, is the District Attorney of Philadelphia and Krinsky is a former federal prosecutor and Executive Director of Fair and Just Prosecution.) Here are excerpts:

As longtime leaders in criminal justice, we have seen a deeply unsettling trend in the way probation and parole — sometimes called “community corrections” — have become overused and too often serve as a gateway to reincarceration based on the smallest of missteps.  That’s why we recently joined with 45 fellow prosecutors nationwide who believe that community corrections needs to be downsized and made rehabilitative, not only because that will make us safer, but because it will fortify trust in our justice system for millions of Americans.

When community corrections was founded in the 1800s, it was viewed as a highly individualized way to curb the purely punitive sentence of imprisonment with an alternative to incarceration (probation) or a release valve for those who did well during incarceration (parole).  But since 1980, it has grown far beyond what its founders ever could have imagined. The number of people on probation and parole has increased four-fold, peaking at 5 million individuals — or one out of every 53 adults — before declining slightly of late. That is twice as many people as are incarcerated in America, and more people than live in half of all U.S. states.

Often thought of as a grant of mercy or slap on the wrist, parole and probation are a deprivation of liberty and can serve as an unnecessary trip wire back into incarceration. Four out of 10 people entering our prisons and jails were on parole or probation at the time of their reincarceration.  Often that stay behind bars is not for a new arrest, but simply for violating a technical condition of release like missing appointments or drug use....

Pennsylvania has the highest incarceration rate in the Northeast, and the third-highest community corrections rate in the country. The number and rate of people supervised by parole in Pennsylvania is the highest in the nation — three times the national average.  An astonishing one out of 22 Philadelphians is being supervised by probation or parole....

Several states have tried to reduce both the footprint and harmful outcomes of these practices.  When Arizona gave people “earned discharge” time off their probation terms, the state not only reduced probation violations by 29 percent, but achieved a 21 percent decline in arrests of people on probation, realizing $392 million in averted costs.  When Louisiana capped the amount of time someone could receive for technical violations at between 15 and 45 days, there was a 22 percent decline in returns to incarceration for new arrests, saving over 2,000 beds and $17 million.

Pennsylvania State Sen. Anthony Williams and New York Assembly Member Walter Mosely have filed legislation in their respective states to address this issue.  These proposed reforms would shorten probation and parole terms, grant people 30 days of earned discharge time for every 30 days of success under supervision, and cap the amount of time someone could receive for a technical violation.

These are the kinds of sensible policy changes needed to restore faith in our justice system, reduce the overly expansive scope of community corrections, focus assistance on those people most in need, reward people for good performance, and overall, increase public safety and rehabilitation.  We hope that prosecutors around the nation will rally around the need for reform and use their influence to help chart a more positive pathway for all members of our community.

A few juicy SCOTUS relists (to temper the guideline-vagueness denials) for sentencing fans

Over at SCOTUSblog, John Elwood continues his yeoman's work via his "Relist Watch" postings which highlight cases that the Supreme Court considered but did not resolve during  recent certiorari review conferences.  In this week's installment of "Relist Watch," we get started with a review of the news, blogged here, that cert was (somewhat surprisingly) denied on oft-relisted vagueness challenges to pre-Booker mandatory application of career-offender guideline.  But thereafter we get the details on some interesting new additions to the relist watch that should intrigue criminal justice fans (with links from the original):

The court also denied review without comment in a knot of cases involving whether sentence enhancements imposed under the residual clause of the then-mandatory sentencing guidelines’ career offender provision were constitutionally infirm because the clause is similar to an Armed Career Criminal Act provision declared unconstitutionally vague in Johnson v. United States.  So long Allen v. United States, 17-5684; farewell Gates v. United States, 17-6262; auf Wiedersehen, James v. United States, 17-6769; adieu, Robinson v. United States, 17-6877; smell ya later Lester v. United States, 17-1366. It’s curious when cases that have been relisted as many as ten times are denied review without even a short statement respecting denial. But perhaps, just as the most effective dissent from denial of cert is never seen (because the court just decides to go ahead and grant review), maybe someone wrote a killer concurrence.  If this strikes you as maddeningly indeterminate, don’t worry: We’ll all know what happened in about another 70 years when the current justices’ papers are released....

Clark v. Louisiana, 16-9541, is a capital case involving a prisoner convicted of murder in connection with the death of a correctional officer during an attempt to escape from the Louisiana State Penitentiary at Angola.  The case raises four issues, but it’s safe to assume one is the particular focus of the Supreme Court.  Issue number one turns on the fact that Louisiana law requires jurors to “find beyond a reasonable doubt that at least one statutory aggravating circumstance exists,” but does not require the jury to employ that same beyond-a-reasonable-doubt standard applies to making a second determination, whether “the sentence of death should be imposed.”  The second issue is whether the “evolving standards of decency” standard forbids using the death penalty when jurors could not be sure which of several defendants inflicted the blows that caused the victim’s death.  The third issue involves whether Clark was presumptively prejudiced when a deputy monitoring the trial, within view of other jurors, asked an alternate juror how she thought the trial was going.  The fourth issue may explain why the case has been hanging around the docket since last October, and only recently was released and relisted: Clark alleges that his lawyer conceded his guilt in the aggravated escape during his first trial and only contested whether the death penalty should be imposed.  Clark says he represented himself at his second trial, where he was convicted, solely to prevent his counsel from conceding his guilt against his wishes. Because the court held on May 14 that the Sixth Amendment guarantees a defendant the right to insist that his counsel refrain from admitting guilt, even when counsel’s view is that confessing guilt offers the best chance to avoid the death penalty, I expect they’ll be taking a very close look at this case.

The last four new relists consist of two sets of related criminal cases arising out of states whose names begin with the letter O. And all four involve the court’s repeated use of the murky procedure of “rescheduling” cases — ordinarily meaning the court moved them from one conference to another before considering them at conference.  Wood v. Oklahoma, 17-6891, and Jones v. Oklahoma, 17-6943, have been rescheduled nine times each — and both have been rescheduled even since they were relisted.  Lee v. Ohio, 17-7213, and Belton v. Ohio, 17-7233, have both been rescheduled four times.  So perhaps these cases will at last shed some light on the rescheduling procedure.

The first two cases are from a place where, if my sources are to be believed, the wind comes sweepin’ down the plain, where there is plenty of air and plenty of room. In the years around Y2K, Tremane Wood and Julius Jones, two African-Americans, were convicted in central Oklahoma of unrelated murders of white men and sentenced to death. In 2017, after Jones had finished state and federal collateral proceedings, and as Moore would soon complete them, a statistical study on capital-sentencing patterns in Oklahoma was published, concluding that nonwhites accused of killing white males are statistically more likely to receive a death sentence, even controlling for aggravating circumstances. Under Oklahoma’s post-conviction statute, a death-sentenced prisoner has just 60 days to file a second or successive post-conviction application based on newly available evidence.  Both filed post-conviction applications arguing that the study constituted newly discovered evidence that they were convicted and sentenced in violation of the Sixth Amendment right to a fair trial, the Eighth Amendment bar on cruel and unusual punishment, and the 14th Amendment right to due process of law. But the court denied their applications on the basis of a state procedural bar, saying that neither had shown that “the identified patterns of race and gender disparity were not ascertainable through the exercise of reasonable diligence” at the time of their original post-conviction proceedings. The petitions in Wood v. Oklahoma, 17-6891, and Jones v. Oklahoma, 17-6943, present two main questions: First, whether the study indicating a risk that racial considerations entered into Oklahoma’s capital sentencing determinations proves that their death sentences are unconstitutional under the Sixth, Eighth, and 14th amendments; and second, whether Oklahoma’s post-conviction statute, as applied by the Oklahoma courts, denied Wood and Jones an adequate corrective process for the hearing and determination of their federal constitutional claims in violation of their rights under the 14th Amendment’s due process and equal protection clauses.

To avoid further depressing our reader, we will refrain from quoting songs about our second O-state– at least beyond the upbeat kind that just spell its name.  Ohio’s legislature has enacted a statute that requires that minors be tried as adults when the defendant is a 16-year-old (or a 14- or 15-year-old recidivist) who is charged with homicide or a handful of other serious offenses (kidnapping, rape, and the aggravated forms of arson, robbery and burglary), generally either while using a firearm or as a recidivist.  In 2016, the Supreme Court of Ohio invalidated the statute as unconstitutional. After two justices retired, Ohio successfully sought rehearing, and less than a year later issued a decision upholding the mandatory transfer law as constitutional. To make things more confusing, Justice Kennedy wrote the majority opinion reversing course, while Justice O’Connor (actually, Chief Justice O’Connor) wrote the dissent — just not the ones you think.  The petitioners in Lee v. Ohio, 17-7213, and Belton v. Ohio, 17-7233, both were convicted of killing people in botched robberies.  Both argue that mandatory trial as an adult violates the Constitution, relying on recent Supreme Court decisions emphasizing the lesser culpability of juvenile offenders and their greater potential for rehabilitation.

Explaining the sudden resignation last week of federal Bureau of Prisons chief

As reported in this post last week, Mark Inch, the director of the federal Bureau of Prisons abruptly resigned on the very day that the White House was having a big event promoting prison reform.  Now the New York Times has this big article explaining why under the headline "Turf War Between Kushner and Sessions Drove Federal Prisons Director to Quit." Here are excerpts: 

When Jared Kushner hosted a high-profile summit meeting on federal prison reform at the White House last Friday, some in attendance noticed that the man who was ostensibly in charge of the federal prison system, Mark S. Inch, a retired Army major general, was nowhere in sight.

Only Mr. Kushner and a few others knew that Mr. Inch, a genial former military police commander appointed to oversee the Federal Bureau of Prisons and its more than 180,000 inmates just nine months ago, had two days earlier submitted his resignation as the bureau’s director to Deputy Attorney General Rod J. Rosenstein. By the time President Trump entered the East Room, Mr. Inch had already been ordered to vacate his office and had begun packing up books and memorabilia from his 35-year military career.

Mr. Inch told Mr. Rosenstein he was tired of the administration flouting “departmental norms.” And he complained that Attorney General Jeff Sessions had largely excluded him from major staffing, budget and policy decisions, according to three people with knowledge of the situation. Mr. Inch also felt marginalized by Mr. Kushner, the president’s son-in-law and senior adviser, in drafting prison reform legislation, the officials said.

He found himself caught in an ideological turf war between Mr. Kushner and Mr. Sessions. Mr. Kushner has championed reforms to the corrections system and more lenient federal sentencing, and Mr. Sessions, a law-and-order conservative and former Alabama attorney general, has opposed significant parts of the bipartisan prison reform bill that Mr. Kushner backs, according to officials.

Mr. Kushner, with the president’s support, has been pushing prison reform legislation meant to reduce recidivism by incentivizing inmates — with the possibility of early release to halfway houses or home confinement — to take part in job training and other rehabilitation programs. Early in the administration, Mr. Kushner and Mr. Sessions came to an agreement, according to a former administration official involved in their talks. Mr. Kushner would press ahead with prison reforms but avoid a politically divisive issue he cared even more strongly about, sentencing reform, which the attorney general and Senator Mitch McConnell, the majority leader, both adamantly oppose.

But Mr. Sessions, not Mr. Kushner, controls the prison bureau. And he has quietly worked to ensure that any reforms that might be seen as excessively lenient toward inmates are put into place only after time-consuming study, according to officials....

But some see Mr. Inch’s exit as an opening for Mr. Trump to take a more sweeping approach that would include sentencing reform — one of the few issues that offer him a chance for the kind of big, bipartisan deal he promised during the 2016 campaign. “The rap against General Inch is that he wasn’t a real reformer. In that sense, his departure is an opportunity,” said Kevin Ring, president of Families Against Mandatory Minimums, a Washington-based advocacy organization that is broadly supportive of Mr. Kushner’s reform efforts. “There’s a real struggle going on now about whether or not to reform the bureau, and it was increasingly clear that he wasn’t in a position to reform that agency.”...

Two senior White House officials said Mr. Kushner made a point of inviting Mr. Inch to meetings on the proposed legislation, but Mr. Sessions and his staff often sent other officials in his place. “The attorney general firmly stands behind the principles of prison reform,” said Sarah Isgur Flores, a spokeswoman for Mr. Sessions. “On this specific bill, we have worked closely with the team to offer suggestions that we believe will protect safety and improve rehabilitative outcomes.”...

For now, the Bureau of Prisons will be run by its former assistant director, Hugh J. Hurwitz, a career bureau official. Mr. Sessions was taken by surprise when Mr. Inch resigned and has not begun his search for a permanent successor, according to a Justice Department official.

Even without some form of prison reform legislation passing, the leader of the Bureau of Prisons is in a very important position for any and every federal defendant sentenced to any period of incarceration.  Who AG Sessions seeks to install in that role becomes even more important if (and I hope when) some form of federal prison reform gets enacted in the coming months.

Prez Trump posthumously pardons boxer Jack Johnson

As reported in this new CNN piece, "President Donald Trump on Thursday granted a posthumous pardon to boxer Jack Johnson on the advice of actor Sylvester Stallone."  Here is more:

"Today I've issued an executive grant of clemency, a full pardon, posthumously, to John Arthur 'Jack' Johnson ... The first African-American heavyweight champion of the world, a truly great fighter. Had a tough life," Trump said.  Trump was joined in the Oval Office by Stallone, current heavyweight champion Deontay Wilder, and Johnson's great-great niece Linda Bell Haywood, among others.

"We have done something today that was very important, because we righted a wrong," Trump said. "Jack Johnson was not treated fairly, and we have corrected that, and I'm very honored to have done it." Last month, Trump said he was considering the pardon....

Johnson, the first African-American world heavyweight boxing champion, was convicted in 1913 under the Mann Act for taking his white girlfriend across state lines for "immoral" purposes.  The Mann Act purported to prevent human trafficking for the purpose of prostitution, but critics have argued it was applied inconsistently to criminalize African Americans and those with dissenting political views. 

Johnson was convicted by an all-white jury in less than two hours and was imprisoned for a year.  The sentence and imprisonment destroyed the boxing career of the "Galveston Giant."  He died in 1946.

Stallone called Johnson an "inspirational character." "It's incredible that you've done this," the "Rocky" star told the President....

In 2016, then-Sen. Harry Reid, D-Nevada, and Sen. John McCain, R-Arizona, along with Reps. Peter King, R-New York, and Gregory Meeks, D-New York, petitioned the Obama administration to grant a pardon to Johnson. The bipartisan group of lawmakers sent a letter to the White House asking that the pardon be given in honor of the 70th anniversary of the boxer's death. "While it is unfortunate that this unjust conviction was not corrected during the boxer's lifetime, a posthumous pardon today represents the opportunity to reaffirm Jack Johnson's substantial contributions to our society and right this historical wrong," the letter said.

In March 2017, Sen. Cory Booker, D-New Jersey, joined with McCain, King and Meeks to reintroduce a resolution urging Johnson's pardon. "Despite this resolution passing both chambers of Congress several times in recent years, no pardon has been issued to date," McCain said in a statement at the time. "I hope President Trump will seize the opportunity before him to right this historical wrong and restore a great athlete's legacy."

In an era in which there are so many living people subject to excessive sentences and unfair convictions and collateral consequences, I am generally not a huge fan of posthumous pardons. But these kinds of actions reveal that a chief executive knows and is willing to acknowledge mistakes and injustices in the operation of the justice system, and (one hopes) they can serve as a precursor to more meaningful use of the clemency power on behalf of people still alive to benefit from it.

This USA Today article from last month provides an interesting review of two previous exampled of posthumous Prez pardons: "Bill Clinton and the Buffalo soldier" and "George W. Bush and the godfather of the Israeli air force"

Amazing new empirical research in federal sentencing outcomes detailing disparities based on political background

This week brought this amazing new working paper by Alma Cohen and Crystal Yang titled simply "Judicial Politics and Sentencing Decisions." I did not want to blog about the paper until I had a chance to read it, and doing so make me want to now do dozens of blog posts to capture all the issues the paper covers and raises. The paper's simple abstract provides a hint of why the paper is so interesting and provocative:

This paper investigates whether judge political affiliation contributes to racial and gender disparities in sentencing using data on over 500,000 federal defendants linked to sentencing judge.  Exploiting random case assignment, we find that Republican-appointed judges sentence black defendants to 3.0 more months than similar non-blacks and female defendants to 2.0 fewer months than similar males compared to Democratic-appointed judges, 65 percent of the baseline racial sentence gap and 17 percent of the baseline gender sentence gap, respectively.  These differences cannot be explained by other judge characteristics and grow substantially larger when judges are granted more discretion.

Each of these three sentences could alone justify multiple postings on just research particulars: e.g., I believe a database with over 500,000 sentencings might be the largest ever assembled and analyzed; I wonder if the data looks different for Clinton and Obama judges among the Ds, for Nixon and Reagan and others judges among the Rs; I fear many judge characteristics like prior jobs and connections to certain communities are really hard to control for.  In other words, just the scope and methods of this research is fascinating.

Moreover and more importantly, there is great richness in the findings of the full paper.  For example, the authors find "statistically significant differences in racial gaps in base offense level and final offense level by judge political affiliation."  In other word, the authors have discovered worrisome disparities in how guideline ranges are set/calculated, not just in how judges sentence in reaction to a particular guideline range.   Some additional notable findings are summarized in this recent WonkBlog piece at the Washington Post headlined "Black defendants receive longer prison terms from Republican-appointed judges, study finds."  Here are excerpts:

Federal judges appointed by Republican presidents give black defendants sentences that are, on average, six to seven months longer than the sentences they give to similar white defendants, according to a new working paper from Alma Cohen and Crystal Yang of Harvard Law School.  That racial sentencing disparity is about twice as large as the one observed among judges appointed by Democrats, who give black defendants sentences that are three to four months longer than the sentences they give to white defendants with similar histories who commit similar crimes....

They did find, however, that the gap between sentences for black and white defendants was smaller for more-experienced judges than for less-experienced ones.  They also found that differences between how Republican and Democratic judges treat black and white defendants grew larger after the Supreme Court's 2005 decision in United States v. Booker, which gave federal judges much more leeway to depart from federal sentencing guidelines.

Importantly, however, they found that growing differences between Democratic and Republican judges in the post-Booker era are due to Democratic judges reducing disparities in how they sentence black and white defendants.  Given more discretion, in other words, Democratic judges treated defendants of different races more equally, while Republican judges continued to carry on as they had before.

Cohen and Yang also found one important geographical effect: Black defendants fared particularly poorly in states with high amounts of population-level racial bias, measured here by the percentage of white residents in a given state who believe there should be laws against interracial marriage.  These states tend to be clustered in the South, and previous research has shown a similar racial sentencing bias in these states when it comes to capital punishment.

Finally, they also observed an opposite effect in how Democratic and Republican judges treated female defendants: While all judges tended to hand down shorter sentences to women than to men charged with similar crimes, Republican judges were considerably more lenient to women.  “Overall, these results indicate that judicial ideology may be a source of the persistent and large racial and gender disparities in the criminal justice system,” Cohen and Yang conclude.

Anyone with any experience in the federal sentencing system knows full well how judicial ideology may be a source of the persistent and large disparities in the operation of the system. But reflecting on my own experiences as a defense attorney and expert in a number of federal sentencing settings, I am eager here to highlight how the impact of judicial ideology may be impacted by the work of other actors involved in the federal sentencing process. I often sense that those judges (perhaps disproportionately Republican Appointees) with an earned reputation as a "by the guideline" type may not consistently receive the same type of mitigating information from probation officers and defense attorneys as do those judges known often to depart or now vary.

If readers are as intrigued and engaged by this new paper as I am, please say so in the comments, and I may try to see if I can encourage some folks to write up some guest-postings about this research.

UPDATE: A helpful reader sent me this link to the full paper in case folks are not able to access it via the NEBR site.

"The Company Store: A Deeper Look at Prison Commissaries"

The title of this post is the title of this notable new report from the folks at the Prison Policy Initiative.  This press release describes the report as a "first-of-its-kind data analysis [of] the economics of prison commissaries in three states."  Here is how the report gets started:

Prison commissaries are an essential but unexamined part of prison life.  Serving as the core of the prison retail market, commissaries present yet another opportunity for prisons to shift the costs of incarceration to incarcerated people and their families, often enriching private companies in the process.  In some contexts, the financial exploitation of incarcerated people is obvious, evidenced by the outrageous prices charged for simple services like phone calls and email.  When it comes to prison commissaries, however, the prices themselves are not the problem so much as forcing incarcerated people — and by extension, their families — to pay for basic necessities.

Understanding commissary systems can be daunting.  Prisons are unusual retail settings, data are hard to find, and it’s hard to say how commissaries “should” ideally operate.  As the prison retail landscape expands to include digital services like messaging and games, it becomes even more difficult and more important for policymakers and advocates to evaluate the pricing, offerings, and management of prison commissary systems.

To bring some clarity to this bread-and-butter issue for incarcerated people, we analyzed commissary sales reports from state prison systems in Illinois, Massachusetts, and Washington.  We chose these states because we were able to easily obtain commissary data, but conveniently, these three states also represent a decent cross section of prison systems, encompassing a variety of sizes and different types of commissary management.  We found that incarcerated people in these states spent more on commissary than our previous research suggested, and most of that money goes to food and hygiene products.  We also discovered that even in state-operated commissary systems, private commissary contractors are positioned to profit, blurring the line between state and private control.

Lastly, commissary prices represent a significant financial burden for people in prison, even when they are comparable to those found in the "free world."  Yet despite charging seemingly "reasonable" prices, prison retailers are able to remain profitable, which raises serious concerns about new digital products sold at prices far in excess of market rates.

Two great new long reads from The Marshall Project

The Marshall Project is for me a regular must-read: my weekdays mornings start most days with its "Opening Statement" email full of all sorts of original and linked criminal justice stories.  Many days I find the "Opening Statement" a bit frustrating because it has more amazing content than I have time to read, and this morning was especially challenging because there were these two original pieces that are lengthy and more than worth the time:

"The Billionaire's Crusade: Broadcom's Henry Nicholas is spending millions to give victims a bigger voice, but not everyone agrees."

An excerpt: Six states have now passed some version of Marsy’s Law, which Nicholas shaped and named for his murdered sister. He has spent upwards of $25 million so far, according to campaign filings, and plans to spend millions more in pursuit of his goal: to get the amendment passed across the country and ultimately, onto the U.S. Constitution.

He’s on his way. This November, the measure will be on ballots in five more states: Oklahoma, Nevada, Kentucky, Georgia and Florida. At least five additional states are considering putting Marsy’s Law before voters in upcoming election seasons — efforts backed almost single-handedly by Nicholas. The measure promises an equal voice for victims in a system where the rights of defendants are constitutionally guaranteed. “We can all agree that no rapist should have more rights than the victim,” the Marsy’s Law website says. It is meant to protect people who have suffered a good deal already, and its appeal to voters is obvious: who is against victims?

But however well-intentioned, Marsy’s Law is drawing criticism from some unexpected quarters, including prosecutors and some victims’ rights advocates.

"Prosecutor Elections Now a Front Line in the Justice Wars"

In most district attorney elections, the campaign playbook is clear: Win over the local cops and talk tough on crime. But in California this year, the strategy is being turned on its head.  Wealthy donors are spending millions of dollars to back would-be prosecutors who want to reduce incarceration, crack down on police misconduct and revamp a bail system they contend unfairly imprisons poor people before trial.

The effort is part of a years-long campaign by liberal groups to reshape the nation’s criminal justice system.  New York billionaire George Soros headlines a consortium of private funders, the ACLU and other social justice groups and Democratic activists targeting four of the 56 district attorney positions up for election on June 5.  Five other California candidates are receiving lesser support.

The cash infusion turns underdog challengers into contenders for one of the most powerful positions in local justice systems, roiling conventional law-and-order politics.  The challengers have matched or surpassed the millions of dollars, largely from police, prosecutors and local business, flowing to incumbents unaccustomed to such organized liberal opposition.

"Capitalizing on Criminal Justice"

The title of this post is the title of this notable new article authored by Eisha Jain now available via SSRN. Here is its abstract:

The U.S. criminal justice system “piles on.”  It punishes too many for too long.  Much criminal law scholarship focuses on the problem of excessive punishment.  Yet for the low-level offenses that dominate state court workloads, much of the harm caused by arrests and convictions arises outside the formal criminal sentence.  It stems from spiraling hidden penalties and the impact of a criminal record.  The key question is not just why the state over-punishes, but rather why so many different institutions — law enforcement institutions as well as civil regulatory agencies and private actors — find it valuable to do so.

This Article argues that the reach of the criminal justice system is not just the product of overly punitive laws, but also the product of institutions capitalizing on criminal law decisions for their own ends.  Criminal law is meant to serve a public purpose, but in practice, key institutions create, disseminate, and rely on low-level criminal records because they offer a source of revenue or provide a cost-effective way of achieving discrete administrative objectives.  These incentives drive and expand the reach of the criminal justice system, even as they work in tension with the state’s sentencing goals.  This dynamic creates obvious harm.  But it also benefits key actors, such as municipalities, privatized probation companies, background check providers, employers, and others who have incentives to maintain the system as it is.  This Article identifies how organizational incentives lead a host of institutions to capitalize on criminal law decisions, and it argues that reform efforts must, as a central goal, recognize and respond to these incentives.

Disconcerting updated data on state prisoner recidivism from the Bureau of Justice Statistics

The Bureau of Justice Statistics has just released this notable "Special Report" that updates its data on criminal justice interactions of a huge cohort of state prisoners released in 2005.  This new report is titled "2018 Update on Prisoner Recidivism: A 9-Year Follow-up Period (2005-2014)." Here is how the document get started:

Five in 6 (83%) state prisoners released in 2005 across 30 states were arrested at least once during the 9 years following their release. The remaining 17% were not arrested after release during the 9-year follow-up period.

About 4 in 9 (44%) prisoners released in 2005 were arrested at least once during their first year after release. About 1 in 3 (34%) were arrested during their third year after release, and nearly 1 in 4 (24%) were arrested during their ninth year.

This report examines the post-release offending patterns of former prisoners and their involvement in criminal activity both within and outside of the state where they were imprisoned.  The Bureau of Justice Statistics analyzed the offending patterns of 67,966 prisoners who were randomly sampled to represent the 401,288 state prisoners released in 2005 in 30 states.  This sample is representative of the 30 states, both individually and collectively, included in the study (see Methodology).  In 2005, these 30 states were responsible for 77% of all persons released from state prisons nationwide.

There is lots more data in this report, and the data I always want to look at closely in there recidivism settings is what type of crime or activity led to re-arrest for these released prisoners. It appears, if I am reading the data correctly, that rearrests were significantly more common for drug or property crime than for violent crime. But still the data show a significant number of rearrests for violent crimes.

As is true for any detailed criminal justice data, these latest recidivism numbers can be spun in support of all sorts of sentencing argument. Some can say (and some surely will say) that disconcerting recidivism data shows why it is so important to enact meaningful sentencing and prison reform at all levels. Others can say (and surely will say) that disconcerting recidivism data shows why any reduction in prison sentences will result in more crime sooner.

FIRST STEP Act passes US House of Representatives by vote of 360-59(!), but its fate in Senate remains uncertain

The prospect of at least partial federal statutory criminal justice reform got that much brighter this afternoon when the US House of Representatives voted overwhelmingly in favor of the FIRST STEP Act.  The vote was 360-59, with Republicans voting 226 to 2 in favor of the bill (not doubt in part because of Prez Trump's strong advocacy for prison reform), and Democrats voting 134 to 57 in favor of the bill. Democratic opposition was certainly based on the failure of the bill to include any sentencing reforms, and this Reason article highlights why this reality might bode ill for the bill's prospects in the Senate.  The Reason piece has this fitting headline: "Prison Reform Bill Passes The House; Is Prison Reform Dead? The House passed a major, bipartisan prison reform bill backed by the White House, but it’s being attacked from all sides."  Here are excerpts:

The House passed legislation that would introduce several significant reforms to the federal prison system today, but the bill's future is uncertain and its passage has openly divided a criminal justice coalition that has worked together, at least in public, for the past several years.

The FIRST STEP Act, which includes a number of substantive changes to the federal prison and reentry system, passed by a vote of 360-59 and now goes to the Senate, but advancing to the White House is not a sure thing. Democrats are split on it, old-school conservatives are drumming up opposition from law enforcement groups, and progressive advocacy groups are attacking it from the left. Sen. Chuck Grassley (R-Iowa), the chair of the Senate Judiciary Committee and the Republican pointman on criminal justice reform, says the bill is dead in the water unless it includes major reforms to federal sentencing law as well.

Trying to keep the whole thing from falling apart are a bipartisan group of House members, the White House—where prison reform has been a priority for President Trump's son-in-law and senior adviser Jared Kushner—and criminal justice groups who say some progress is better than none.

"I think unfortunately there are groups that would like to see sentencing reform happen right now and are not willing to settle for less," says Jessica Jackson Sloan, co-founder of #Cut50, a group that works to lower the U.S. prison population. "In some ways it's strategic because they helped us to make this bill as good as it can be, but at this point it's splitting the Democrat vote and we need a strong show of support to have this taken up in the Senate."...

The bill has sharply divided Democrats. On one side is Rep. Hakeem Jeffries (D-N.Y.), the bill's co-sponsor, and others who say it would provide better conditions and the possibility of earlier release for the roughly 180,000 inmates serving time in federal prison. "Any objective reading of this bill is that it will improve inmates' quality of life," Jeffries said on the House floor prior to the vote.

On the other side are Democrats who say the good provisions in the bill are outweighed by core concerns over how the overcrowded, underfunded Bureau of Prisons system would handle the new programs and changes. In a "dear colleague" letter released last week, Sen. Dick Durbin (D-Ill.), Sen. Cory Booker (D-N.J.), Sen. Kamala Harris (D-Calif.), Rep. John Lewis (D-Ga.), and Rep. Sheila Jackson-Lee (D-Tx.) wrote that the reforms would fail without broader sentencing reforms....

Meanwhile in the Senate, Grassley and a bipartisan group of co-sponsors are pushing the Sentencing Reform and Corrections Act, which includes reductions to federal mandatory minimum sentences. The bill is the result of years of negotiation between Senate Republicans and Democrats, and the lead negotiators don't want to see their work languish.

"With the President's encouragement, I believe we can reach a deal on criminal justice reform," Grassley said in a statement Tuesday. "For that deal to pass the Senate, it must include sentencing reform. This is necessary for practical as well as political reasons."

However, sentencing reform is a non-starter for the White House, where Attorney General Jeff Sessions — a staunch opponent of criminal justice reforms — holds sway....

For supporters of the bill, the last few months have felt like an unending game of whack-a-mole. "One obstacle pops up and you knock it down," says Holly Harris, Executive Director at the U.S. Justice Action Network. "This has been a delicate dance from the beginning.  I think this will be the most well-vetted bill that Congress has seen in years. It's been a long time coming, and those who stand in the way of progress, those will be the losers in this situation."

Some of many prior related posts:

• House Judiciary Committee approves FIRST STEP Act by a vote of 25-5 after lots of discussion of amendments
• Mapping out the politics for the path forward for federal prison (and sentencing?) reform
• A fittingly depressing account of the current state and potential fate of federal statutory criminal justice reform
• Interesting new US Sentencing Commission analysis of possible impact of Sentencing Reform and Corrections Act of 2017
• On eve of House Committee consideration, distinct advice from criminal justice reform groups on latest federal prison reform proposal 
• Five prominent congressional Democrats write in opposition to federal statutory prison reform without broader sentencing reform
• The latest political back and forth, on both sides of the aisle, as federal prison reform efforts gain momentum 
• Prez Trump pledges to sign prison reform that will be "best in the world"
• "President Trump supports prison reform" 
• On eve of planned House vote on FIRST STEP Act, NY Times editorial misguidedly asserts a "partial bill could end up being worse than nothing" 

Two new short essays providing ideas in criminal justice administration to think about for a long time

I have noticed these two notable new essays on SSRN that have the benefit of both being short reads with ideas worth thinking long and hard about:

"Classical Liberal Criminal Law" by Rachel Barkow

Abstract: This essay, written for a festschrift for Richard Epstein, argues that classical liberals should support robust constitutional protections in criminal matters.  It specifically highlights the need for robust Eighth Amendment review.

"Approaches to Federal Judicial History: The Federal Courts and Criminal Justice" by Sara Mayeux

Abstract: Mass incarceration has long constituted not only a sociological fact and a moral disaster in the United States, but also a major sector of the public and private economy; a significant component of ideologies of race, gender, and sexuality; and a distorting influence upon electoral processes and deliberative democracy.  What role has the federal judiciary played in this complex history?  This short historiographical essay provides a brief and necessarily selective introduction to exemplary scholarship addressing the relationship between the federal courts and criminal justice in U.S. history, and seeks to encourage historians of the carceral state — even or especially those who do not define themselves primarily as legal historians — to join the conversation.  The essay is structured around three of the most significant ways in which the federal judiciary has historically made and enforced criminal justice policy: by adjudicating federal criminal prosecutions; by reviewing state-court convictions, via federal habeas jurisdiction; and by reforming state prisons and local jails, via constitutional conditions-of-confinement litigation.  This essay was prepared at the invitation of the Federal Judicial History Office for a forthcoming volume.

Interesting report touts the potential economicy benefits of restoring felon voting rights in Florida

As regular readers know, I think there are an array of strong moral, social and political arguments for ending felon disenfranchisement.  But this local article from Florida, headlined "Price tag for restricting felons' rights after prison put at $385 million a year," reports on an interesting effort to make an economic argument for a ballot initiative in the state to expand the franchise. Here are the details:

Seven years after Gov. Rick Scott and the Florida Cabinet voted to end the state policy that automatically restored the civil rights of nonviolent offenders after they complete their sentences, a price tag has emerged.  Florida lost an estimated $385 million a year in economic impact, spent millions on court and prison costs, had 3,500 more offenders return to prison, and lost the opportunity to create about 3,800 new jobs.

Those are just some of the conclusions of a new economic research report prepared by the Republican-leaning Washington Economics Group of Coral Gables for proponents of Amendment 4, the proposal on the November ballot that asks voters to allow the automatic restoration of civil rights for eligible felons who have served their sentences.  The report was commissioned by the Alliance for Safety and Justice, a national criminal justice reform organization that works with crime survivors, to show the economic impact of approving the amendment.

But the findings show more than the economic impact of what could happen if voters approve it. They also estimate the cost of the policy that was fast-tracked into law by the governor and Cabinet a month after taking office in 2011, its impact on crime and its cost to taxpayers. Scott, Attorney General Pam Bondi, Agriculture Commissioner Adam Putnam, and then-Chief Financial Officer Jeff Atwater repealed the automatic restoration of rights that had been in place for four years and replaced it with a plan requiring a minimum five-year waiting period before offenders could start the application process to have their voting and civil rights restored.

The action reversed the policy approved by the Cabinet in 2007 at the urging of then-Gov. Charlie Crist. Now, the only way a convicted felon can regain his or her civil rights is to wait five years and apply for a review at the state Office of Executive Clemency, which has limited resources and can take years....

The proposed amendment would restore rights automatically, except for those convicted of murder or a felony sexual offense. To come up with a price tag for the policy, economists looked at the data from 2007 to 2011 and compared it with current data. They focused on the recidivism rate, the number of released felons who returned to prison after being released and projected the costs and the impact those felons would have on the economy if they went to work instead.... By contrast, research shows that felons who have their voting rights restored, "have a greater ability to become full members of Florida’s society and economy, leading to a reduced rate of recidivism,'' the report said.

Before 2007, the recidivism rate for all felons was 33 percent, according to a 2011 report by the Florida Clemency Board. After Crist's policy, the average two-year recidivism rate for felons who had their rights restored was 12.4 percent, lower than the three-year average recidivism rate of all felons, which was 26.3 percent.

Under Crist, 155,315 offenders who were released got their rights restored. Under Scott, just 4,352 offenders have had their rights restored. Of those felons who have had their rights restored, less than 1 percent of them returned to crime and the average three-year recidivism rate for all felons in Florida in 2013 — the last year available — was 25.4 percent.

The governor's office disputes the claim that recividism rates dropped when more felons had rights restored. It argues the recidivism rate has been dropping in recent years in spite of the restrictive approach to rights restoration. Scott's office notes that the three-year recidivism rate has decreased from 30.5 percent for inmates released in 2007, the first year of Crist's policy, to 25.2 percent for inmates released in 2013, which is the latest data available and includes the last year of Crist's policy....

The report calculated the impact on the prison system and the courts using existing data on offenders and recidivism rates. It calculated the economic impact of their labor patterns on Florida using a model that considers the link between the demand one industry has on other industries. The report cites research that shows that felons earn less than average wages, and felons who do not have their voting rights restored earn 12 percent less than that.

"With higher incomes, eligible felons would be able to afford living in less-disadvantaged areas, which is associated with better employment outcomes after release and less recidivism,'' the report states. It estimates that employed eligible felons who had their rights restored would see an $88 million direct increase in income. That will ripple through the rest of the Florida economy, the economists said, "ultimately benefiting employment in many industries and Household Income for Florida residents, not just for the eligible ex-felon population."

The full research report referenced in this article is available at this link.

Updated archive of European Union engagement concerning death penalty in the United States

I have the great honor and pleasure of talking today about the application of the death penalty in Ohio to a delegation of the European Union to the United States. Prior to the meeting, the EU delegation drew my attention to this online archive of (past) EU engagement in the US on death penalty.

This archive includes letters of appeal, official statements and the link, and it has been recently modified to update all the links, going back 18 years. Here is the description that sets up the links that follow:

The EU unconditionally supports the right to life and the right not to be subject to cruel, inhuman, and degrading treatment or punishment— standards recognized in the Universal Declaration of Human Rights, other international human rights agreements, and many national constitutions.

Abolition of the death penalty is a prerequisite for EU membership, and the European Union actively promotes a global moratorium on the use of the death penalty and protests against the practice in individual cases throughout the world.  The EU has insisted that bilateral extradition treaties with non-EU countries automatically preclude the use of the death penalty in all cases of extradited prisoners from EU Member States.

As a global leader in the fight against torture and other forms of ill treatment, the EU works to prevent and eliminate torture and to end the impunity of those responsible.  Through its Guidelines on Torture and Other Cruel, Inhuman and Degrading Treatment, the EU strives to persuade non-EU countries to produce and apply effective measures to outlaw torture.  The EU also champions anti-torture initiatives in international forums, consistently raises its concerns with other countries through political dialogue and bilateral initiatives, and provides substantial funding for relevant projects by civil society organizations.

"Against Life Without Parole"

The title of this post is the title of this new paper authored by Judith Lichtenberg available via SSRN. Here is the abstract:

Over 40,000 people in the United States today are serving life without parole sentences (LWOP) — more than triple the number in 1992.  This figure understates the case, since parole has become increasingly rare for the 140,000 prisoners serving life sentences that ostensibly permit parole. I argue that LWOP sentences should be abolished.

After reviewing the facts about LWOP, I show that of the standard reasons for punishment only retributivism can hope to justify it.  I investigate the varieties of retributivism and argue that plausible versions do not entail or even recommend it.  So, we can reject LWOP without abandoning retributivism — an important point, strategically and perhaps morally as well.

I then make the positive case for abolition, on three main grounds.  First, few (if any) people are fully culpable for their criminal acts; we should mitigate their punishment accordingly.  Second, abolishing life without parole — and indeed all life sentences — is likely to bring many benefits: to prisoners, their loved ones, the community in general, and to those who decide for abolition and who carry it out.  Among these is the promotion of certain attitudes it is good for people to have, including faith in humanity.  Finally, there’s a certain pointlessness in continuing to punish a person who has undergone changes of character that distance them greatly from the person who committed the crime many decades earlier.

On eve of planned House vote on FIRST STEP Act, NY Times editorial misguidedly asserts a "partial bill could end up being worse than nothing"

The on-going debate over competing proposals for federal statutory criminal justice reform continues to fascinate me, but I am getting ever more troubled by suggestions from certain folks that the FIRST STEP Act is so bad and that the Sentencing Reform & Corrections Act is a so much better.  This new New York Times editorial, headlined "The Right Way to Fix the Prisons," reflects this thinking, and here are excerpts with passages stressed that particularly concern me:

For more than a decade, states of every political hue — from Texas and Louisiana to Connecticut and California — have been overhauling their criminal justice systems, to reverse the effects of decades of harsh and counterproductive policies.  But Congress has watched this revolution from the sidelines, thanks to reactionary lawmakers, including Mr. Sessions when he was in the Senate.  Comprehensive federal legislation has been foiled again and again, as states forge ahead, reducing both prison populations and crime rates through bipartisan reforms....

One bill backed by the White House, known as the First Step Act, would improve some prison conditions and help smooth the path to re-entry for people behind bars. It would, for example, require that inmates be housed within 500 miles of their families, prohibit the brutal but disturbingly common practice of shackling pregnant women and expand rehabilitative programs in which prisoners can participate to earn good-time credits.  These are all important and long-overdue fixes to existing law.

But the bill would leave it up to individual prison wardens to decide who gets to use their credits and when, which means inmates would be treated differently based on where they’re locked up.  The bill also restricts early release to halfway houses, even though as many as 40 percent of people behind bars pose no risk to public safety, according to a study by the Brennan Center for Justice, and would do fine with less intensive oversight, such as electronic monitoring.  On top of that, federal halfway houses are so underfunded that even inmates who are eligible for immediate release can’t go anywhere, because there aren’t enough beds available.

The biggest problem with the First Step Act, however, isn’t what’s in it; it’s what’s left out.  Specifically, sentencing reform.  Harsh sentencing laws passed in the 1980s and 1990s, like mandatory minimums of 10 or 20 years even for low-level drug crimes, have been among the main drivers of the nation’s exploding prison population....

Mr. Grassley is sponsoring the Sentencing Reform and Corrections Act, which would reduce the harshest sentences for nonviolent drug crimes and give judges more discretion to issue lighter sentences.  The bill nearly passed Congress in 2016, only to be killed by then-Senator Jeff Sessions.... Mr. Grassley’s bill has the support of top senators of both parties, as well as law-enforcement leaders and the Leadership Conference on Civil and Human Rights, a coalition of more than 200 civil-rights organizations.  It’s not perfect, but it’s far preferable to the First Step Act, which could get a vote in the House as soon as this week.

Meanwhile, liberal backers of the First Step Act, like Representative Hakeem Jeffries, the New York Democrat who is sponsoring the bill, argue that it’s better than nothing, especially in the current political environment. “We have a Republican president. Republicans control the House of Representatives and the Senate,” Mr. Jeffries wrote in letter to his colleagues on Friday. “Those are the facts.”

He’s right.  And yet a partial bill could end up being worse than nothing, especially if its benefits don’t live up to expectations, and if Congress, which has many other pressing matters to attend to, decides it’s had enough of the topic.  “Get a bill to my desk,” Mr. Trump said on Friday. “I will sign it.” If he means this, and if he genuinely cares about reforming the federal justice system, he’ll demand a bill that addresses the system’s most pressing problems.

Though this Times editorial references Rep. Hakeem Jeffries' extended letter defending the FIRST STEP Act, I wonder if the details of this important missive was fully understood.  That letter highlights that many of the prison reform provisions are MUCH improved in the FIRST STEP Act as compared to the SRCA.  Of particularly importance, the FIRST STEP Act includes the "Good Time Credit" fix, which serves functionally as a 2% across the board cut to prison terms for all current and all future federal prisoners.  There is no proper way to claim that a permanent and retroactive 2% cut in all federal prison terms "could end up being worse than nothing."  Moreover, it bears noting that the SRCA is anything but major sentencing reform, as it is only forecast to impact less than 5% of all cases annually under the US Sentencing Commission's estimates.  

In other words, the SRCA offers a worse version of prison reform cobbled together with a weak version of sentencing reform.  Even on the substantive merits, I am not sure I would prefer SRCA to the FIRST STEP Act.  (And of course, Congress has been trying to pass variant on the SRCA for now nearly half a decade to no avail.)   Most critically, the passage of the SRCA would be much more likely to bring what the NY Times fears, namely a reform bill that does not live up to expectations and yet allows Congress to feel it can move on after having done something "comprehensive."  In contrast, the FIRST STEP Act, if passed, will be in both name and spirit just what is needed here: a real improvement that is widely understood as only the first of many needed steps toward fixing a deeply flawed federal sentencing and prison system.

Some of many prior related posts:

• House Judiciary Committee approves FIRST STEP Act by a vote of 25-5 after lots of discussion of amendments
• Mapping out the politics for the path forward for federal prison (and sentencing?) reform
• Puzzling through the current politics of pursuing federal statutory criminal justice reforms 
• A fittingly depressing account of the current state and potential fate of federal statutory criminal justice reform
• Interesting new US Sentencing Commission analysis of possible impact of Sentencing Reform and Corrections Act of 2017
• More criticism of prison-reform only efforts, while failing to explain a path forward for broader federal sentencing reforms
• On eve of House Committee consideration, distinct advice from criminal justice reform groups on latest federal prison reform proposal 
• Five prominent congressional Democrats write in opposition to federal statutory prison reform without broader sentencing reform
• The latest political back and forth, on both sides of the aisle, as federal prison reform efforts gain momentum 
• Prez Trump pledges to sign prison reform that will be "best in the world"
• "President Trump supports prison reform" 

UPDATE: This Politico article from Monday night, headlined "Trump-backed prisons bill DOA in the Senate," suggests that neither the FIRST STEP Act or the SRCA has much of a chance to make it through the Senate no matter what happens in the House.  Though the headline of this Politico piece is disconcerting, the full article is not quite so pessimistic and reinforces that Judiciary Chair Senator Chuck Grassley and Senate Leader Senator McConnell are the critical players for the future of any federal statutory criminal justice reforms for the foreseeable future. 

"Sex offender registry: More harm than good?"

The title of this post is the headline of this lengthy report appearing in The Connecticut Mirror. The piece is focused mostly on the history of, and debate over, the sex offender registry in The Constitution State, but much of the discussion has a universal quality to it.  Here is how it gets started:

In the 1990s, in response to a number of horrific and highly publicized crimes against children, states and the federal government created stringent penalties for sex offenders, notably registries where offenders’ names and addresses are available to the public.  But now critics across the country are demanding review and revision of these policies, saying they are based on false assumptions, are a waste of money and do more harm than good.

The registries and related policies “are absolutely and fundamentally flawed. They do nothing to support prevention, are not a deterrent and do nothing for people who have survived sexual violence,” said Prof. Alissa Ackerman of California State University Fullerton, a criminologist and national expert on the treatment of sex offenders.

In 2015 the Connecticut Sentencing Commission, at the behest of the General Assembly, began a lengthy examination of Connecticut’s “system of assessment, management, treatment, and sentencing of sex offenders.”  After a two-year study, the commission recommended changing the state’s public registry from one based on the offense — commit most sex-related crimes and you go on the registry — to one based on the risk an offender poses to the community, as determined by a new, eight-member Sex Offender Registration Board.  Individuals found to be low-risk — and some adjudged moderate-risk — would be on a registry only available to law enforcement personnel.

The proposal was crystalized into a bill introduced during the immediate past session of the General Assembly, though it failed to make it out of the Judiciary Committee.

State Sen. Paul Doyle, co-chair of the committee, said the complexity and emotional nature of the issue made it more appropriate for the longer session next year. “We never got to the merits. Leadership was not prepared to deal with it in a short session.” He said he personally would have had to do more research before deciding how to vote.

In a related matter, the nonprofit Connecticut for One Standard of Justice, which advocates for the civil rights of sex offenders, filed a federal lawsuit on April 4 seeking to overturn a Windsor Locks ordinance which bars persons on the sex offender registry from most public places in town. The town’s “child safety zones” include a “park, school, library, playground, recreation center, bathing beach, swimming pool or wading pool, gymnasium, sports field, or sports facility” either owned or leased by the town. The suit claims banning a group of people from these facilities is unconstitutional....

The registry and laws such as child protection zones are based on a set of assumptions that research indicates are highly questionable or outright false. The Sentencing Commission’s 204-page report calls them “myths.”  They include:

• Nearly all sex offenders reoffend.
• Treatment does not work.
• The concept of “stranger danger” — that most sexual assaults are the work of people unknown to the victims.

“Research does not support these myths, but there is research to suggest that such policies may ultimately be counterproductive,” the commission’s report says.

In shadow of Parkland, a notable discussion with victim families about capital prosecutions in Florida

This local article from Florida, headlined "For victims' families, no easy answer on whether the ordeal of a death penalty case is worth it," take a thoughtful look at what a death penalty prosecution can mean for the families of murder victims. I recommend the piece in full, and here are excerpts:

The parents of the murdered students of Marjory Stoneman Douglas High School have been asked — directly by prosecutors, indirectly by defense lawyers, and while talking amongst themselves — whether the young man responsible for mercilessly slaughtering their children should be executed for the crime.

At stake is more than just the life of the killer, Nikolas Cruz.  Whenever the death penalty is ordered in Florida, the case is automatically appealed, guaranteeing the victims’ families will be locked with Cruz in a lengthy process that can take years or even decades to resolve. It’s a position no one envies, but some who have been through similar ordeals say the Parkland parents cannot give a wrong answer, no matter what they decide.

The South Florida Sun Sentinel talked to family members of three victims whose accused killers faced the death penalty. They agreed that the process is long, grueling and takes an emotional toll. Yet none regret their decisions to ask prosecutors to seek a death sentence.

The Broward State Attorney’s Office already announced that it plans to seek the death penalty against Cruz, 19, who killed 14 students and three staff members at the Parkland high school.  Prosecutors won’t say whether the families’ input could change the strategy.  And Broward Public Defender Howard Finkelstein, whose office is representing Cruz, has offered to have him plead guilty in exchange for a sentence of life in prison.

Fred Guttenberg, whose daughter Jaime was among the dead, said Finkelstein’s offer is tempting. “I support the death penalty,” he said. “But I don’t want to pursue it in the case of my daughter’s killer. … If there’s a chance Cruz is willing to take a plea deal, I say go for it.”  Guttenberg said his main concern is having to relive the case at every stage — a trial, followed by a penalty phase, followed by appeals, the specter of a retrial, repeating the process from the beginning, “only to end up at what is likely to be a life sentence anyway.”...

For Chris Crowley, staying away wasn’t an option.  Crowley waited 27 years to see his sister’s killer executed in 2013. William Frederick Happ confessed in the execution chamber and begged for forgiveness before he was put to death by lethal injection.  His victim, Angela Crowley, had lived in Lauderdale Lakes for just a few months and was working at a travel agency in the spring of 1986.  She was on her way to visit a friend in Citrus County when she was abducted and murdered by Happ.

Chris Crowley, 61, said watching Happ die gave him a kind of closure he never could have gotten had he known the killer was in a cell getting three meals a day. “He would have had the possibility to kill again,” Crowley said. “The possibility of escape. The possibility of a commuted sentence. With the death sentence, there’s finality.”...

Deborah Bowie calls her situation “the textbook case for everything that is dysfunctional about capital punishment.”  Bowie’s sister, Sharon Anderson, was murdered in 1994 along with two others in what became known as the Casey’s Nickelodeon murders.  The other victims were Casimir "Butch Casey" Sucharski, former owner of the popular Pembroke Park bar that gave the case its nickname, and Marie Rogers....  “It’s a marathon every time,” said Bowie. “I feel for any family that is starting a death penalty case at the beginning. They have no idea what they’re in for.” 

"President Trump supports prison reform"

The title of this post is the heading of the lead item on "1600 Daily," the daily promotional email coming from the White House.  Here is what appears under the heading:

Crime imposes a significant burden on Americans' well-being and taxpayer-financed resources. These costs are amplified by re-arrest rates for released American prisoners that exceed 50 percent. Many programs have been tried to reverse this trend over the past few decades. Some of them work; some don't.

President Donald J. Trump supports prison reform legislation that builds on evidence-based programs to reduce prisoner recidivism rates. The President has called on Congress to help former inmates who have completed their sentences to have a second chance to become contributing members of society.

The White House hosted a summit on prisons last week. "Prison reform is an issue that unites people from across the political spectrum," President Trump said. "It's an amazing thing. Our whole nation benefits if former inmates are able to reenter society as productive, law-abiding citizens."

Learn how President Trump wants to fix America's prison system.

Watch: Highlights from the President's remarks at the White House summit

This Fact Sheet (which is the first link above) strikes me as a reasonably detailed statement of reasonably progressive federal prison reforms (e.g., there is discussion of the need to "Expand access to prison work programs to allow all eligible inmates who want to work to gain job skills while incarcerated and prepare for successful reentry into society" and "Allowing BOP to place low-risk offenders in home confinement for the maximum amount of time permitted when appropriate" and "Requiring BOP to make female-healthcare products available for female prisoners").  I would be eager to hear from experts who are especially informed about prison reform and the federal system as to what particular prison reforms they see missing from these White House talking points.

Of course, criminal justice reform advocates are rightly troubled by this Administration's disaffinity for any front-end sentencing reforms.  The Fact Sheet notable states: "Rather than lowering sentences, the President supports reforms that empower prisoners participating in recidivism-reducing programming to obtain 'earned-time' credits."  I am not sure if this statement intimates that Prez Trump would veto a bill that included sentencing reforms, but I am sure this statement accounts from why so many GOP leaders are much more bullish on the FIRST STEP Act than on the SCRA.  

Some of many prior related posts:

• House Judiciary Committee approves FIRST STEP Act by a vote of 25-5 after lots of discussion of amendments
• Mapping out the politics for the path forward for federal prison (and sentencing?) reform
• Puzzling through the current politics of pursuing federal statutory criminal justice reforms 
• A fittingly depressing account of the current state and potential fate of federal statutory criminal justice reform
• More criticism of prison-reform only efforts, while failing to explain a path forward for broader federal sentencing reforms
• On eve of House Committee consideration, distinct advice from criminal justice reform groups on latest federal prison reform proposal 
• Five prominent congressional Democrats write in opposition to federal statutory prison reform without broader sentencing reform
• Prez Trump pledges to sign prison reform that will be "best in the world"
• The latest political back and forth, on both sides of the aisle, as federal prison reform efforts gain momentum 

Without explanation, SCOTUS rejects vagueness challenges to pre-Booker mandatory application of career-offender guideline

It was a "civil" morning for US Supreme Court today, with two opinions from the civil side of its docket (one big, one little) and four cert grants on matters that are mostly civil and somewhat procedure (although one, Royal v. Murphy, deals with tribal jurisdiction over a capital prosecution).   But there was still some interesting news for sentencing fans in today's SCOTUS order list in the form of somewhat surprising denials of certiorari in cases dealing with the residue of the Johnson vagueness ruling for guideline-sentenced defendants before Booker make the guidelines advisory.

This part of this SCOTUSblog Relist Watch post by John Elwood from a few weeks ago spotlights cases I have had my eye on:

Lester v. United States, 17-1366, would justify readers in feeling a bit of déjà vu all over again. The case presents the question whether the residual clause of the career offender sentencing guideline was unconstitutionally vague back before United States v. Booker when the Sentencing Guidelines were still mandatory.  If that seems as familiar as Indiana Jones 4, that very question is already before the court in a number of serial relists: Allen v. United States, 17-5684, Gates v. United States, 17-6262, James v. United States, 17-6769 (all relisted nine times) and Robinson v. United States, 17-6877 (relisted seven times). 

Sentencing gurus know that the Supreme Court in Beckles decided that the Court's big vagueness ruling in Johnson dealing with a key clause of the Armed Career Criminal Act did not entail constitutional problems for a parallel clause of the sentencing guidelines because the guidelines are now advisory, not mandatory.  But defendants in the cases above, which SCOTUS had been mulling over now for many months, were sentenced with the problematic parallel clause of the sentencing guidelines before Booker made the guidelines advisory.  But because judges could (and sometimes did) depart from the guidelines even before Booker made them mandatory (but cannot depart from applying ACCA), these cases presented an interesting and uncertain push-pull between the Johnson ruling and Beckles' gloss on its application.

I had been hoping that the collection of these cases as "serial relists" meant that SCOTUS was busy looking for the right vehicle for considering these post-Johnson matters.  But today, as noted above, certiorari was denied by the Supreme Court in all these cases without any explanation.  Of course, explanations for cert denials are not common.  But because relists often lead to a cert grant or at least some discussion by some justice of the issue, I am starting my week bummed that an interesting intricate piece of sentencing jurisprudence did not prompt any substantive SCOTUS engagement.

"Punishing Risk"

The title of this post is the title of this new article on SSRN authored by Erin Collins.  Here is the abstract:

Actuarial recidivism risk assessments — or statistical predictions of the likelihood of future criminal behavior — drive a number of core criminal justice decisions, including where to police, who to release on bail, and how to manage correctional institutions.  Recently, this predictive approach to criminal justice has entered a new arena: sentencing.  Actuarial sentencing has quickly gained a number of prominent supporters and is being implemented across the country.  This enthusiasm is understandable.  Its proponents promise that actuarial data will refine sentencing decisions, increase rehabilitation, and reduce reliance on incarceration.

And yet, in the rush to embrace actuarial sentencing, scholars and policy makers have overlooked a crucial point: actuarial risk assessment tools are not intended for use at sentencing.  In fact, their creators explicitly warn that these tools were not designed to aid decisions about the length of a sentence or whether to incarcerate someone.  And yet, that is precisely how those who endorse actuarial sentencing — including the American Law Institute in the recently revised Model Penal Code for Sentencing — suggest they should be used.

Actuarial sentencing is, in short, an unintended, “off-label” application of actuarial risk information.  This Article re-examines the promises of actuarial sentencing in light of this observation and argues that it may cause a number of equally unintended and detrimental consequences.  Specifically, it contends that this practice distorts, rather than refines, sentencing decisions.  Moreover, it may increase reliance on incarceration — and for reasons that undermine the fairness and integrity of the criminal justice system.

US District Judge Bennett explains why meth sentencing guidelines are wrong to treat "drug purity [as] a proxy for culpability"

Long-time readers know that US District Judge Mark Bennett has long made his post-Booker mark with thoughtful opinion explaining why various guidelines ought not merit full respect in light of the purposes of sentencing set forth in 18 USC § 3553(a). Judge Bennett's latest important sentencing work, which a helpful reader made sure I did not miss, comes in US v. Nawanna, No. CR 17-4019-MWB (D. Iowa May 1, 2018) (available here). Like so many of Judge Bennett's opinions, this latest ruling is a must-read for all who follow the federal sentencing system, and it starts and ends this way:

The United States Sentencing Guidelines differentiate between methamphetamine mixture and actual (pure) methamphetamine or "ice."  That difference is the primary basis for the defendant's motion for a downward variance.  Even though he is a first-time drug offender who has never been in prison, he argues that he faces a "breathtakingly high" Guidelines sentencing range of 360 months to life, where the methamphetamine at issue was treated as actual (pure) methamphetamine or ice.  He argues that the harsh methamphetamine Guidelines overstate his culpability and should be rejected on policy grounds.  Specifically, his argument, of first impression for me, is that the methamphetamine Guidelines are based on a flawed premise, set out in U.S.S.G. § 2D1.1, cmt. n.27(C), that drug purity is a proxy for culpability.

The prosecution responds that, although I am free to place whatever weight I wish on the various advisory Guidelines, the defendant's advisory Guidelines sentencing range is appropriate in this case, because it reflects the dangerous role the defendant played in dealing pure methamphetamine . Thus, this case requires me, once again, to consider the question of the merits of the advisory Guidelines sentencing range for a defendant convicted of methamphetamine offenses.  In United States v. Hayes, 948 F. Supp. 2d 1009 (N.D. Iowa 2013), I followed the lead of two other federal district judges by reducing a methamphetamine defendant's advisory Guidelines sentencing range by one third, on the basis of a policy disagreement with the methamphetamine Guidelines.  This sort of variance was for low level, non-violent, addict offenders.  This opinion, which supplements my rationale on the record at the defendant's sentencing hearing, explains why I find that a similar reduction, based on a different calculation, is appropriate in this case....

Exercising my discretion to reject the advisory Guidelines sentencing range for methamphetamine offenses on the basis of a policy disagreement, I determined that a downward variance was appropriate in Nawanna's case.  The reasons for rejecting the methamphetamine Guidelines, here, were independent of the reasons for rejecting the methamphetamine Guidelines set out in my decision in Hayes.  Here, I concluded that the methamphetamine Guidelines are based on a flawed assumption that methamphetamine purity is a proxy for role in the offense, which, like Judge Robert C. Brack of the District of New Mexico, I find "is divorced from reality." Ibarra-Sandoval, 265 F. Supp. 3d at 1255.  Nawanna's advisory Guidelines sentencing range of 360 months to life would be greater than necessary to accomplish the purposes of sentencing under 18 U.S.C. § 3553(a).  Instead, for the reasons stated, above, and on the record during Nawanna's sentencing hearing, Nawanna should be sentenced to 132 months incarceration.

Vera Institute of Justice reports on "People in Prison 2017"

Via this web page and this document, the Vera institute of Justice has now providing a valuable new "up-to-date view of the number of people in state and federal prisons." Here is the summary of their efforts from the print document:

Effective advocacy and policy making require up-to-date information. Vera Institute of Justice (Vera) researchers collected data on the number of people in state and federal prisons on December 31, 2017 to provide timely information on how prison incarceration is changing in the United States.  This report fills a gap until the Bureau of Justice Statistics (BJS) releases its next annual report — likely in late 2018 or early 2019 — which will include additional data, such as population breakdowns by race and sex.

At the end of 2017, there were an estimated 1,489,600 people in state and federal prisons, down 15,800 from yearend 2016 (1 percent decline).

There were 1,306,300 people under state prison jurisdiction, 9,900 fewer than in 2016 (0.7 percent decline); and 183,300 in the federal prison system, 5,900 fewer than in 2016 (3.1 percent decline).  The prison incarceration rate in the United States was 457 people in prison per 100,000 residents, down from 465 per 100,000 in the previous year, representing a 1.8 percent drop. (See Figure 1.)  This brings the rate of prison incarceration down 14 percent since its peak in 2007.

The overall decline in the national prison incarceration rate was driven by the large decrease in the number of people in federal prisons, as well as greater than 5 percent declines in several states with large prison populations, such as Illinois, Louisiana, and Maryland.  However, the declines were not universal.  Mass incarceration is still on the rise in some states, such as Kentucky and Tennessee.  (See Table 1 for a summary of the jurisdictions with the highest and lowest prison population counts, rates, and percent changes from 2016.)

In addition to this summery, this document has a bunch of clear and informative charts with total prison populations and rates and changes for every state and region from 2007 to 2017.