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November 17, 2018

"Evaluating Intellectual Disability: Clinical Assessments in Atkins Cases"

The title of this post is the title of this notable new paper authored by James Ellis, Caroline Everington and Ann Delpha. Here is its abstract

The intersection of intellectual disability and the death penalty is now clearly established.  Both under the U.S. Supreme Court’s constitutional decisions and under the terms of many state statutes, individual defendants who have that disability cannot be sentenced to death or executed.  It now falls to trial, appellate, and post-conviction courts to determine which individual criminal defendants are entitled to the law’s protection.

This Article attempts to assist judges in performing that task.  After a brief discussion of the Supreme Court’s decisions in Atkins v. Virginia, Hall v. Florida, and Moore v. Texas, it analyzes the component parts and terminology of the clinical definition of intellectual disability.  It then offers more detailed discussion of a number of the clinical issues that arise frequently in adjudicating these cases.  For each of these issues, the Article’s text and the accompanying notes attempt to provide judges with a thorough survey of the relevant clinical literature, and an explanation of the terminology used by clinical professionals.  Our purpose is to help those judges to become more knowledgeable consumers of the clinical reports and expert testimony presented to them in individual cases, and to help them reach decisions that are consistent with what the clinical literature reveals about the nature of intellectual disability and best professional practices in the diagnostic process. 

November 17, 2018 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

November 16, 2018

Senate Majority Leader McConnell tells Prez Trump that FIRST STEP Act will not get done this year

According to this new New York Times piece, "Senator Mitch McConnell told President Trump in a private meeting on Thursday that there is not likely to be enough time to bring a bipartisan criminal justice bill up for a vote this year, regardless of the support it has in the Senate and the White House, according to people familiar with the meeting." here is more:

Mr. McConnell, who as majority leader controls the Senate floor, delivered the news in a previously scheduled meeting at the White House convened to discuss the chamber’s legislative agenda for the remaining weeks of the term.

Lawmakers from both parties have been working furiously to build support for the compromise legislation that would begin to reverse some of the tough-on-crime federal policies of the 1980s and 1990s that incarcerated African-American offenders at much higher rates than white offenders.

Mr. Trump enthusiastically endorsed the proposal this week, and Speaker Paul D. Ryan, Republican of Wisconsin, pledged to move it across the finish line in the House “this term.” But Mr. McConnell’s conclusion could all but foreclose the possibility that Congress will vote on the bill this year.

Publicly, Mr. McConnell has avoided putting his thumb on the scale for or against the legislation. He told reporters on Wednesday that if proponents secured the support of at least 60 senators, he would be willing to push the bill forward, but cautioned that he would have to “see how it stacks up against our other priorities going into the end of our session.”

Congress must also come to an agreement on how to fund a handful of federal departments, including Homeland Security, and resolve an impasse over a major farm bill, among other smaller issues. Don Stewart, a spokesman for Mr. McConnell, reiterated those points in a statement on Friday, adding, “The support for, and length of time needed to move the new bill is not knowable at this moment.”

But Mr. McConnell told the president that the bill would most likely eat up about 10 days on the Senate floor — time that he did not have between now and the scheduled end of the legislative session on Dec. 14, according to the people familiar with the remarks, who were granted anonymity to describe the private meeting. They were not connected to Mr. McConnell. If the bill had enough support, Mr. McConnell said, he would be willing to bring it up next year, after the new Congress is seated.

Supporters of the legislation, which includes anti-recidivism programs, and the expansion of early release credits and sentencing changes, worry that Mr. McConnell is being a less-than-neutral arbiter. They believe that if consideration slips into January, when Democrats who favor more expansive sentencing changes take control of the House, the current compromise could collapse....

At the Senate Republicans’ weekly caucus luncheon at the Capitol, Mr. McConnell acknowledged that the changes had influential supporters who had worked hard on the issue, but also invited two of its chief critics, Senators Tom Cotton of Arkansas and John Kennedy of Louisiana, to deliver remarks, two Republican congressional officials said.

Mr. Cotton, who has been perhaps the loudest critic of the bill’s sentencing changes in the Senate, urged colleagues to slow down the process, saying that the bill’s impact and implications were too expensive to push through without hearings, according to another official familiar with his remarks. He stressed opposition by some law enforcement groups and warned that a draft version of the bill he had seen would lead to the immediate release of thousands of felons onto the streets.

Senator Mike Lee, a Utah Republican who helped write the legislation, pushed back against Mr. Cotton’s characterization. So did Senator Charles E. Grassley, the Iowa Republican who is chairman of the Judiciary Committee and led the compromise effort. Mr. Grassley said that Mr. Cotton’s remarks made him sound like “some sort of pinko commie.”...

The delay in bringing up the legislation described to Mr. Trump is not the first time that proponents of changes in the sentencing and prison systems have bumped up against Mr. McConnell. A similar coalition of lawmakers and outside groups made a higher-profile and more expansive attempt to overhaul the criminal justice system during the final years of the Obama administration, and had support from Mr. Ryan and other Republicans. But Mr. McConnell did not allow a vote on the bill before the 2016 elections, worried about sowing divisions among Republicans.

This is quite disappointing, but not surprising, and I am now inclined to fear that no significant form of federal criminal justice reform will be completed as long as Senator McConnell is the Senate's majority leader.

November 16, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (5)

"Reentry Matters: Strategies and Successes of Second Chance Act Grantees"

The title of this post is the title of this new publication from the National Reentry Resource Center and the CSG Justice Center. This webpage provides this summary and additional related materials:

The National Reentry Resource Center and the CSG Justice Center released a new edition of Reentry Matters: Strategies and Successes of Second Chance Act Grantees in celebration of the 10th anniversary of the Second Chance Act (SCA).  Enacted with bipartisan support, SCA helps state, local, and tribal governments and nonprofit organizations in their work to reduce recidivism and improve outcomes among people who have been in the criminal justice system.  Since its passage 10 years ago, SCA has supported more than 900 grants for adult and youth reentry programs, as well as systemwide improvements to help jurisdictions better address the needs of people who are incarcerated.  Featuring 21 stories from programs across 19 states, Reentry Matters profiles the impact of SCA grant-funded programs through both the practitioners who run them and the people who are impacted by them.

For analysis of the most up-to-date recidivism data in 11 states, read Reducing Recidivism: States Deliver Results, which profiles states showing significant declines in their three-year return-to-prison rates and details how SCA grant awards have helped the 11 featured states to test recidivism-reduction strategies, invest in evidence-based practices, and increase the capacity and scale of programs.

Related materials

November 16, 2018 in Reentry and community supervision | Permalink | Comments (0)

News and notes from the front lines of the debate over the FIRST STEP Act

The decision by President Donald Trump to support the FIRST STEP Act, discussed here and here, was a critical necessary development for the law to have a chance to passage.  But it was not alone sufficient to ensure the bill even gets a vote, especially as there is talk of Senate Majority Leader Mitch McConnell still being less than eager to advance the bill to the Senate floor.  Various political players and possible ups-and-downs surrounding the bill are well covered in these new articles from the New York TimesPolitico and the Washington Post:

I want so very, very badly to be optimistic about the prospects for the FIRST STEP Act, in any form, to become law very, very soon.  But the pessimistic bet has been a winning one on the federal statutory criminal justice reform front for the last eight years, as politics and gridlock have trumped effective policy advancement.  One would hope that, in a properly functioning democracy, a bill with the support of the President and probably close to 90% of all members of Congress could and would become law.  But I am fearful that these reality may still not be enough to get the FIRST STEP Act into law.  Time will tell (and likely in the next few weeks).

UPDATE Here are some more discouraging headlines and stories for those who may have become unduly optimistic after Prez Trump's endorsement:

November 16, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

November 15, 2018

Senator Tom Cotton, rather than argue against FIRST STEP Act, makes case for what should be in a SECOND STEP Act

Senator Tom Cotton, who has been the main and most vocal opponents of federal criminal justice reform, has this notable new USA Today commentary.  I was expecting the piece to argue against the FIRST STEP Act that has been endorse by Prez Trump and has wide bipartisan support.  But, as these excerpts highlight, Senator Cotton in this piece primarily articulates what further statutory reforms are needed to fix a broken federal criminal justice system:

Here’s what genuine criminal-justice reform would do: reduce arbitrary government power over lives and protect us from the drug epidemic ravaging our community. Congress can take three simple steps to achieve these goals.

First, we need to clean out the federal criminal code. Today, no one even knows for sure how many federal crimes are on the books. One estimate found between 10,000 and 300,000 regulations that can be enforced criminally, in addition to the more than 5,000 federal criminal laws.

Many of those federal crimes would be funny, if they weren’t so dangerous to our liberty. For example, there’s a federal law against selling “Turkey Ham” as “Ham Turkey.” Think such laws are never enforced? Think again. Gibson Guitars was prosecuted under a century-old law at a cost of millions of dollars to the taxpayers and the company because it allegedly transported wood in a way that may have violated laws of India. We should scrub the federal criminal code and remove such outdated and arbitrary laws. And we should create a transparent database of this shorter, more concise criminal code.

Second, many federal crimes do not require mens rea, or a “guilty mind.” Mens rea, a common element of most state crimes, means that the offender must have a certain state of mental culpability to be charged with the crime. Coupled with the vast and confusing criminal code, the lack of mens rea leaves Americans at risk of arbitrary prosecution for trivial conduct. Senator Orrin Hatch has been a champion for mens rea reform to ensure that, at a minimum, a defendant should have known his conduct was wrong before facing criminal charges. Congress should incorporate these concepts into criminal-justice legislation.

Third, the federal criminal code hasn’t kept up with the opioid crisis, allowing the epidemic to spread across the country.  For example, current law doesn’t reflect the potency of fentanyl, a highly lethal opioid responsible for killing tens of thousands of Americans each year. A trafficker can carry enough fentanyl to kill 5,000 Americans before the lowest mandatory minimum sentence applies, and these traffickers receive a mere five-year sentence for distributing enough poison to kill more Americans than died on 9/11.

Unfortunately, the legislation moving through Congress includes no mens rea reform, no reduction in the criminal code, and no crackdown on deadly drug traffickers. Astonishingly, the bill goes soft on some of the worst crimes — trafficking heroin and fentanyl — by allowing most traffickers to spend up to a third of their sentence at home, where many of them will no doubt return to dealing drugs.

At this point, it’s best for Congress to pause on criminal-justice legislation and take the time to reform our criminal code, include mens rea as an element of most crimes, and strengthen the sentences for dangerous drug crimes. Congress can also focus on how to rehabilitate felons to help them get off on the right foot after serving their sentence. What Congress ought not do is rush through flawed legislation in a lame-duck session.

I agree with Senator Cotton that we need to reduce the number of federal crimes, include strict mens rea protections in all federal criminal provisions, and better respond to the opioid crisis (although I think history has shown that increased federal mandatory minimums are an ineffective way to respond to drug problems). For that reason, I sincerely hope Senator Cotton is busy drafting bills to address these matters that Congress can and should consider swiftly after the passage of the FIRST STEP Act.  But, as the name suggests, the FIRST STEP Act does not claim to fix all the myriad problems of federal criminal law, and so Congress can and should address Senator Cotton's (second step) concerns right after they take a critical first step.

November 15, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Drug Offense Sentencing, Elections and sentencing issues in political debates, Offense Characteristics, Who Sentences | Permalink | Comments (5)

"Eight Keys to Mercy: How to shorten excessive prison sentences"

The title of this post is the title of this notable new Prison Policy Initiative report.  I recommend the whole report, and here are excerpts from its start and its summary concepts:

After decades of explosive growth, prison populations have mostly flattened. Much of that is due to lawmakers lessening penalties for drug possession or low-level property offenses. While a welcome start, a bolder approach is necessary to truly begin to make a dent in the numbers of individuals who have served and will serve decades behind bars. This approach will take political courage from legislators, judges, and the executive branch of state governments.

Approximately 200,000 individuals are in state prisons serving natural life or “virtual” life sentences.  And as of year’s end 2015, one in every six individuals in a state prison had been there at least for 10 years. 

These are not merely statistics. These are people, sentenced to unimaginably long sentences in ways that do little to advance justice, provide deterrence, or offer solace to survivors of violence. The damage done to these individuals because of the time they must do in prison cells — as well as to their families and their communities — is incalculable.

People should not spend decades in prison without a meaningful chance of release.  There exist vastly underused strategies that policy makers can employ to halt, and meaningfully reverse, our overreliance on incarceration. We present eight of those strategies below....

Our 8 strategies

The eight suggested reforms in this report can shorten time served in different ways:

  • Several ways to make people eligible for release on parole sooner. 
  • One way to make it more likely that the parole board will approve conditional release on parole.
  • Several ways to shorten the time that must be served, regardless of sentencing and parole decisions.
  • One simple way to ensure that people are not returned to prison.

Of course, states vary in many ways, most critically in how they structure parole eligibility, and policymakers reading this report should anticipate tailoring our suggested reforms to their state systems. Each of the reforms laid out in this report could be effective independent of the others.  However, we encourage states to use as many of the following tools as possible to shorten excessive sentences:

  1. Presumptive parole
  2. Second-look sentencing
  3. Granting of good time
  4. Universal parole eligibility after 15 years
  5. Retroactive application of sentence reduction reforms
  6. Elimination of parole revocations for technical violations
  7. Compassionate release
  8. Commutation

November 15, 2018 in Clemency and Pardons, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0)

Interesting new report looking at intersection of risk-assessment tools and judicial selection methods

I received an email today alerting me to this interesting new report titled "Roadblock to Reform" authored by Megan Stevenson and Jennifer Doleac.  This webpage provides a video and a summary of the full report, and here are excerpts therefrom:

How do state court judges’ political incentives affect their willingness to employ criminal justice reforms?  This report, Roadblock to Reform, looks at how judges in Kentucky and Virginia have adopted risk assessment tools to inform incarceration decisions.  It considers whether judges’ willingness to use risk assessment tools is related to how the judge is selected.

The study shows that, in both states, reforms aimed at reducing incarceration for low-risk offenders had little to no impact on incarceration rates.  While these tools clearly recommended less incarceration for a large share of defendants, they had little effect on judges’ incarceration decisions.  However, there is tremendous variation among judges in how closely they follow the risk assessment recommendations.

Even in jurisdictions that require the use of these tools, the effectiveness of the risk assessments relies on how judges use the information provided to them. As is outlined in Roadblock to Reform, reforms that seek to reduce incarceration rates for low-risk offenders had little to no impact on incarceration rates in Kentucky and Virginia....  

Researchers decided to study Kentucky and Virginia because their reforms occurred at the statewide level instead of at the county level which ensures that there are many observations on which to base our analysis. In addition, both states began using algorithmic tools to aid in criminal justice decision making early on.

Kentucky has used some sort of algorithm to aid in the pretrial custody decision since the 1970s and made it mandatory in 2011.  Virginia piloted risk assessment in the late 1990’s and adopted it statewide in 2002.  Finally, both states adopted risk assessment with the explicit goal of reducing jail and prison populations. 

The key findings of Roadblock to Reform reveal that many judges ignore the recommendations associated with the risk assessment tools.  As critics have pointed out, risk assessments are not perfect, but the report serves as an important warning that the pressures placed on judges by politicized selection and retention systems are a barrier to any meaningful criminal justice reform. We will never truly fix the criminal justice system unless we get politics out of the ways judges get and keep their jobs....

If Kentucky judges had followed the recommendations associated with the risk assessment in all cases, the pretrial release rate among low- and moderate-risk defendants would have jumped up by 37 percentage points after risk assessment was made mandatory.  Instead, the pretrial release rate for low- and moderate-risk defendants increased by only 4 percentage points, from 63% to 67%.

  • The median judge in Kentucky grants release without monetary bail to only 37% of defendants with low or moderate risk status. In other words, the median judge overrules the presumptive default associated with the risk assessment about 2/3 of the time.
  • If judges had followed the recommendations associated with the risk assessment, there would have been up to a 25% increase in the diversion rate among risk assessment-eligible offenders after risk assessment was adopted statewide. Instead, the diversion rate remained virtually unchanged, dipping just slightly from 34% to 33%.
  • The median judge in Virginia diverts only about 40% of those who were recommended for diversion by the risk assessment instrument.

November 15, 2018 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

"The Time Frame Challenge to Retributivism"

The title of this post is the title of this notable new paper by Adam Kolber now available via SSRN.  Here is its abstract:

Retributivists believe that criminal offenders should suffer or be punished in proportion to what they morally deserve.  There is, however, an often-ignored debate as to whether desert should be assessed across a person’s life (the “whole life” view) or only for crimes that are the subject of a current sentencing proceeding (the “current crime” view).  Both options are unappealing. 

The whole life view may be superior on theoretical grounds but is hopelessly impractical.  The current crime view is somewhat more practical but has no solid theoretical foundation. The lack of a suitable time frame in which to assess desert represents an important challenge to retributivist conceptions of proportionality.  Even uncertainty about the proper time frame may itself be detrimental to some retributivists’ hopes of justifying the incarcerative sentences of particular offenders.

November 15, 2018 in Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (0)

Texas completes its eleventh execution of 2018, bringing the US total to 21 for the year

In 2016, the United States had only 20 total executions, the lowest number in a quarter century.  And that will remain the recent record low number of yearly executions because last night, as reported in this AP article, Texas completed an execution that took the national total for 2018 up to 21 executions.  Here are the details:

A Mexican citizen on death row in Texas was executed Wednesday night for the sledgehammer killings of his wife and two children more than 26 years ago.

Roberto Moreno Ramos was condemned for the 1992 deaths of his 42-year-old wife Leticia, 7-year-old daughter Abigail, and 3-year-old son Jonathan at their home in Progreso, located along the Mexico border.

When asked by the warden if he had a final statement, Ramos thanked the Mexican consulate for assisting with appeals in his case and said he was grateful for “the humane treatment I got in prison in Texas.”...

As the lethal dose of the powerful sedative pentobarbital began taking effect, the 64-year-old Ramos took a couple of deep breaths, sputtered once and began snoring. Within seconds, all movement stopped. Eleven minutes later, at 9:36 p.m. CST, Ramos was pronounced dead.

He became the 21st inmate put to death this year in the U.S. and the 11th given a lethal injection in Texas, the nation’s busiest capital punishment state. No friends or relatives of Ramos or his victims witnessed the execution.

Mexican officials had called for his execution to be stopped, arguing he was part of a group of Mexican citizens condemned in the U.S. who were never told when first arrested that they could get legal help from the Mexican government.

The U.S. Supreme Court on Wednesday night cleared the way for the punishment when it denied two appeals seeking to halt the lethal injection. Ramos’ attorney on Wednesday asked the Supreme Court to stop his execution, arguing that Ramos’ constitutional rights were violated as lower courts refused to fully review his claims that his trial lawyers failed to present any evidence about his mental illness and abusive childhood that could have persuaded jurors to spare his life.

Three retired justices who had served on the Texas Court of Criminal Appeals filed court documents with the Supreme Court on Wednesday in support of stopping the execution. The ex-judges alleged the appeals court appointed an incompetent appellate attorney who early in the post-conviction process failed to investigate Ramos’ case....

In court documents, Ramos’ appellate attorney, Danalynn Recer, had argued Ramos suffered from bipolar disorder most of his life, including during the time of his family’s killings, as well as brain damage that affected his ability to control his impulses and regulate his emotions. Recer said Ramos was also brutally beaten as a child by his father. Ramos was born in Aguascalientes, Mexico, and grew up in Guadalajara and Tijuana before his family moved to the United States in 1970. “No fact-finder or decision-maker entrusted with Mr. Moreno Ramos’ life has ever been provided with evidence of (his) ‘diverse human frailties’ to assist them in dispensing the most severe punishment under law,” Recer said.

The Death Penalty Information Center reports here that there are three more executions scheduled for 2018, two in Texas and one in Tennessee.  Even if these executions all go forward, the total number of executions nationwide in the first two years of the Trump Administration will be less than 50 (47 to be exact), while there were 52 executions nationwide in the very first year of the Obama Administration and 66 executions in the first year of the Bush Administration.  Of course, presidents have almost no direct impact on state capital cases and the pace of executions. But given Prez Trump's affinity for talking up the death penalty, this factoid about executions still seems noteworthy.

November 15, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (0)

November 14, 2018

Prez Trump about to "make an announcement on H.R. 5682, the 'First Step Act'" ... which was a strong endorsement

According to this @POTUS_Schedule tweet, we are this afternoon to hear directly from Prez Trump on criminal justice reform: "4:30PM - Roosevelt Room - Announcement regarding H. R. 5682, the 'First Step Act'."  Lots of media are reporting he will endorse reform and push for a bill to be passed ASAP. I am about to watch the Live Stream here or here or here.

UPDATEPrez Trump announces his support for First Step Act, emphasizing its bipartisan nature and law enforcement's support, as well as asserting it would "roll back some of the Clinton crime law."  Trump concludes his remarks by saying, "I'll be waiting with a pen.  We will have done something that hasn't been done in many, many years, and it is the right thing to do."

MORE: Here is new item from the White House under the headlined "President Donald J. Trump Calls on Congress to Pass the FIRST STEP Act." Here are excerpts, with a few especially notable passages emphasized by me:

CALLING FOR BIPARTISAN ACTION: President Donald J. Trump is calling on Congress to take action and support the bipartisan prison reform legislation, the FIRST STEP Act. 

  • President Trump supports the FIRST STEP Act, which will help improve our Nation’s criminal justice system.
  • The FIRST STEP Act enjoys widespread support across the political spectrum.
    • Many of the reforms included in this legislation passed the House in an overwhelming, bipartisan vote of 360–59 in May 2018.
    • Republicans and Democrats in the Senate worked with the White House to craft a bipartisan sentencing reform compromise, which has been added to the legislation.
    • So far, seven major police organizations, more than 2,700 faith and evangelical leaders, and hundreds of conservative organizations and leaders support this legislation.

MAKING AMERICA SAFER AND FAIRER: The FIRST STEP Act will reform America’s prisons to make our communities safer and our justice system fairer.

  • Nearly all incarcerated Americans will one day leave prison, and the goal of this legislation is to make sure they do not return.
    • The FIRST STEP Act uses a targeted approach toward a specific population of Federal prisoners who will eventually be released.
  • The FIRST STEP Act will promote prisoner participation in vocational training, educational coursework, or faith-based programs, and in turn help them successfully reenter society.
    • Prisoners will be able to earn credits that reduce the amount of time spent in prison.
    • As a result, prisoners will gain job skills, drug treatment, and education that prepare them to reenter American communities as productive members of society.
    • The legislation also seeks to place Federal inmates closer to their communities in order to facilitate family visitation.
  • This is a true first step in creating a fairer justice system by reforming mandatory minimums, which have created racially discriminatory outcomes and increased overcrowding and costs.
    • The legislation reduces the enhanced penalties for certain non-violent repeat drug offenders and eliminates the three-strike mandatory life provision.
    • Certain nonviolent offenders will be able to petition courts for a review of their sentence, which can be reduced only after the judge reviews all circumstances, including public safety, criminal history, and the nature of the offense.

IMPROVING THE PRISON SYSTEM: Taking steps to better prepare inmates for reentry into our society and communities will help reduce recidivism.

  • We can improve society for all by better equipping prisoners being released for successful reintegration into society.
  • Today, one in three American adults has some type of criminal record and more than two million Americans are in prisons, including 181,000 in Federal prison.
    • More than 95% of these prisoners will eventually leave prison and face the challenge of restarting and reintegrating their lives.
  • Our prisons can do much more to prepare inmates for release, addressing the fact that roughly 77% of State inmates and 38% of Federal inmates are rearrested within five years of release. 

November 14, 2018 in Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (5)

"The Second Chances Gap"

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

Over the last decade, dozens of states have enacted “second chance” reforms that increase the eligibility of individuals charged or convicted of crimes to, upon application, shorten or downgrade their past convictions, clean their criminal records, and/or regain the right to vote.  While much fanfare has accompanied the increasing availability of “second chances,” less is known about their uptake.

This study introduces the concept of the “second chance gap” — the gap between eligibility for and award of certain forms of second chance relief, and sizes it in connection with several initiatives (Obama’s Clemency Initiative, California’s Propositions 47 and 64, and Maryland and Pennsylvania records clearing provisions).  It finds approximate uptake rates to be low (less than 20% in most cases) suggesting that among the studied initiatives, the majority of second chances have been missed chances, apparently due to administrative factors like low awareness and high-cost, high-friction application processes and backlog.

To narrow second chance gaps and unlock opportunities and equal access to benefits for individuals with criminal histories, this Essay argues, policymakers should embrace automation, burden-shifting, centralization, and consistency in the implementation of second chance laws.  Ensuring that the design and administration of second chance laws reflect their intent can help remove the red tape, not steel bars, that stand in the way of second chances.

November 14, 2018 in Collateral consequences, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (0)

November 13, 2018

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

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

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

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

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

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

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

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

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

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

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

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

Some of many prior related posts:

UPDATE: A few other recent press reports reinforce my sense and concern that nothing here is a done deal yet:

From the Washington Post, "Trump receptive to compromise criminal justice overhaul backed by Kushner"

From The Hill, "Criminal justice reform faces a make-or-break moment"

November 13, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Mandatory minimum sentencing statutes, Prisons and prisoners, Scope of Imprisonment, White-collar sentencing | Permalink | Comments (0)

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

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

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

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

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

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

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

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

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

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

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

November 13, 2018 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

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

Pie_2018_womenThe Prison Policy Initiative has today posted an updated version of its remarkable incarceration "pie" graphic and associated report on the particulars of who and how women are incarcerated in the United States.  Here is part of the report's introductory text and subsequent discussion:

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

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

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

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

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

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

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

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

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

November 13, 2018 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

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

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

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

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

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

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

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

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

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

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

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

November 13, 2018 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

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

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

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

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

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

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

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

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

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

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

November 13, 2018 in Blakely in the Supreme Court, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

November 12, 2018

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

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

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

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

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

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

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

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

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

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

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

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

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

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

November 12, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

"The Effects of Holistic Defense on Criminal Justice Outcomes"

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

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

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

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

Here is the article's abstract:

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

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

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

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

November 12, 2018 in Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior related posts:

November 12, 2018 in Clemency and Pardons, Drug Offense Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0)

November 11, 2018

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

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

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

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

November 11, 2018 in Offense Characteristics, Scope of Imprisonment, Who Sentences | Permalink | Comments (2)

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

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

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

A few of many recent related posts: 

November 11, 2018 in Clemency and Pardons, Offender Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)