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November 30, 2018

Outgoing California Gov Jerry Brown urged by notable group to commute 742 death sentences

As reported in this Reuters article, a "Catholic group close to Pope Francis and representatives of 25 countries on Wednesday appealed to outgoing California Governor Jerry Brown to commute all the state’s 742 death sentences before laving office." Here is more:

The Sant’ Egidio peace group made the appeal together with the justice ministers of South Africa, Benin, Zimbabwe and Malaysia, and 21 lower-ranking officials from other countries at a conference on the death penalty held in Italy’s parliament. Mario Marazziti, a Sant’ Egidio leader, asked Brown to “declare a moratorium on all executions and begin the process of commuting the sentences into jail terms before leaving office”.

Brown, who once trained to be a priest of the Jesuit order, will leave office after completing his current two terms on Jan. 7, when Governor-elect Gavin Newsom is sworn in.

There are currently 742 people condemned to die in California, where the last execution took place in 2006. Executions since then have been blocked by legal issues.

Sant’ Egidio, which has branches in many countries and hundreds of thousands of followers around the world, is in the forefront of efforts to abolish the death penalty and help migrants. It has found great favor with the pope. Last August, the Roman Catholic Church formally changed its teaching to declare the death penalty inadmissible, whatever the circumstance....

An editorial in the Los Angeles Times last week urged Brown to commute at least the death sentences of those who committed crimes when they were young. The newspaper also urged Newsom to place a new anti-death penalty initiative on a future ballot.

Propositions to end capital punishment were defeated in 2012 [and] 2016 in California.

November 30, 2018 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

November 29, 2018

Latest chapter of FIRST STEP Act massaging and messaging

Just about day now seems to bring a new development in the saga surrounding a possible Senate vote on some possible version of the FIRST STEP Act.  This new Politico article, headlined "Criminal justice reform bill still alive as McConnell deliberates," reports on the very latest of these developments, and here are excerpts:

Chuck Grassley and other advocates of criminal justice reform are desperately trying to sway Mitch McConnell to stay longer in December to finish their bill. And McConnell isn't ruling it out.

The Senate Judiciary chairman said he's still waiting on an official word from the majority leader on whether he will provide floor time to take up a measure that has drawn heated opposition from some Senate Republicans despite earning President Donald Trump's endorsement....

McConnell said the Senate GOP is still deliberating on whether to move forward, though he left the door open in a brief Thursday interview. “We’re trying to figure out how to proceed on it. We’re still trying to figure that out," the Kentucky Republican said....

Meanwhile, even as a bipartisan group of senators is still working on coming up with a new agreement to win more co-sponsors and the support of the National Sheriffs' Association, a Justice Department draft began circulating on Thursday that rewrites a number of key provisions.

The draft, obtained by POLITICO, would still allow many federal inmates to earn time credits and obtain supervised release but would bar people convicted of violent crimes and major drug trafficking crimes. It would also increase penalties for attacking police officers and fentanyl dealers, a key concern of law enforcement groups and senators from states wracked by the opioid crisis.

But the White House pushed back quickly against the draft, reiterating Trump's call for the criminal justice bill to get a vote this year. "The president has endorsed the Senate compromise on the First Step Act, and the White House is not circulating any other version,” White House deputy press secretary Hogan Gidley said. “All reporting to the contrary is false. The White House is committed to passing this legislation in the lame duck."

One person working in favor of criminal justice reform also slammed the draft as reflecting the efforts of a "rogue DOJ official who always hated the bill." Democrats and Republicans have been working to overcome objections from Republican senators, but "this is not what is being considered," the person said....

Senate Minority Whip Dick Durbin (D-Ill.) said supporters are considering excluding people from sentencing reforms that committed arson, certain drug crimes, and "taking care of the sheriffs' concerns" about sex crimes.

November 29, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Prisons and prisoners, Who Sentences | Permalink | Comments (8)

New data show major change in felony filings after Oklahoma initiative defelonized various offenses

This new posting, titled "In its first year, SQ 780 reversed 10 years of growth in felony filings," reports on interesting new data out of Oklahoma concerning the impact of the passage of a criminal justice ballot initiative back in 2016. Here are details:

New data shows that State Question 780 reduced felony filings by over 14,000 across Oklahoma’s District Courts in its first year in a major realignment of how the state deals with low-level offenses.  SQ 780, approved by voters by a wide margin in 2016, reclassified simple drug possession and many minor property crimes as misdemeanors rather than felonies.  Assessing the First Year of SQ 780, a new report from Open Justice Oklahoma, uses original data from aggregated District Court criminal filings in the last ten years to evaluate the impact of the justice reform ballot measure in FY 2018.  Open Justice Oklahoma, a project of the Oklahoma Policy Institute, seeks to improve understanding of our justice system through analysis of public data. The data reveal several trends:

  1. SQ 780 reversed a long trend of increasing felony and decreasing misdemeanor filings across the state.Total felony filings fell by 14,141, or 28.4 percent, in FY 2018, while total misdemeanors rose by 6,437, or 13.6 percent.

  2. Cases involving reclassified charges shifted sharply from felony to misdemeanor in FY 2018. The number of felony cases filed involving simple drug possession fell by 14,164, or 74.9 percent, and felony cases involving property crimes fell by 8,095, or 29 percent, from FY 2017 to FY 2018. Misdemeanor cases involving drug possession rose by over 160 percent, while those involving property crimes rose by over 10 percent.

  3. Filing of other cases showed little change statewide in FY 2018, but felony cases filed with possession with intent to distribute (PWID) charges rose slightly. The number of felony cases involving PWID rose by 431, or 13.6 percent, but the number filed in FY 2018 (3,604) was only slightly more than were filed in FY 2016 (3,515). The number of felony cases involving drug trafficking changed by less than one percent.

  4. The effects of SQ 780 varied across counties and District Attorney districts. Nearly all counties saw declines in felony filings; in some rural counties, like Cotton and Harper Counties, felonies dropped by more than 50 percent. Some counties saw increases in PWID cases of 200 percent or more in FY 2018 compared to the average of the previous three years, including Haskell and Dewey Counties; the patterns in these mostly rural counties suggest there could be a shift toward harsher filing practices.

November 29, 2018 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Lots of interesting data from BJS on "Time Served in State Prison, 2016"

The Bureau of Justice Statistics released this interesting new document titled simply "Time Served in State Prison, 2016," which has lots of interesting data on how much time offenders serve in state prisons. Here is what BJS lists as "Highlights":

November 29, 2018 in Offense Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (3)

Michael Cohen, former lawyer to Prez trump, pleads guilty to lying to Congress

As reported in this AP piece, "Michael Cohen, President Donald Trump's former lawyer, made a surprise appearance before a federal judge in New York on Thursday to plead guilty to lying to Congress about work he did on an aborted project to build a Trump Tower in Russia." Here is more:

Flanked by his lawyers, Cohen admitted making false statements in 2017 to the U.S. Senate Select Committee on Intelligence about the project. Cohen told the judge he lied about the timing of the negotiations and other details to be consistent with Trump's "political message."

Cohen and prosecutors referred to Trump as "individual one" throughout Thursday's proceedings and said he lied "to be loyal to Individual One." Among other lies, Cohen said he told Congress that all discussions of the Moscow Trump Tower project ended by January 2016, when they had actually continued until June of that year....

In August, Cohen pleaded guilty to other federal charges involving his taxi businesses, bank fraud and his campaign work for Trump. Reacting to the plea to the new charges, House Speaker Paul Ryan said Cohen "should be prosecuted to the extent of the law. That's why we put people under oath."

Cohen gave a statement to congressional committees last year saying the president's company pursued a project in Moscow during the Republican primary but that the plan was abandoned "for a variety of business reasons." Cohen also said he sent an email to the spokesman for Russian President Vladimir Putin as part of the potential deal. In his statement, he said that he worked on the real estate proposal with Felix Sater, a Russia-born associate who he said claimed to have deep connections in Moscow.

The discussions about the potential development began after Trump had declared his candidacy. Cohen had said the talks ended when he determined that the project was not feasible. Cohen had also disclosed that Trump was personally aware of the deal, signing a letter of intent and discussing it with Cohen on two other occasions.

As readers may recall and as detailed in this post, Cohen other plea deal from this past summer included an agreement not to challenge any sentence imposed in the range of 46 to 63 months of imprisonment. The folks at Lawfare now have collected here the criminal information, and plea agreement in the latest version of US v. Michael Cohen.  The nine-page plea agreement has lots of sentencing talk but none of that talk is that interesting because the guideline range for this offense seems clearly to be just zero to six months of imprisonment.  Consequently, from a sentencing perspective, it seems that this otherwise notable development is unlikely to significantly change Cohen's sentencing exposure.  And his ultimate sentence is likely to turn on how he cooperates with the Special Counsel team and how that team portrays his cooperation at sentencing.

Prior related posts:

November 29, 2018 in Celebrity sentencings, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (6)

"The Death Penalty & The Fundamental Right to Life"

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

For over forty years, the Supreme Court has held that the death penalty is not invariably cruel and unusual in violation of the Eighth Amendment.  But the Court has never addressed—let alone decided—whether the death penalty per se deprives the fundamental right to life in violation of substantive due process.  The legal literature has followed suit, scarcely addressing the issue.

This Article makes the case for why the death penalty violates the fundamental right to life.  It first argues that the condemned have a fundamental right to life based on a history and tradition of diminished support for the death penalty nationally and worldwide, the dignity of the condemned, and the negative right not to be killed by one’s government.  It next argues that the death penalty deprives this right in violation of substantive due process because the State cannot prove that the death penalty is narrowly tailored to achieve deterrence or retribution: arbitrariness, delay, and unreliability deprive the death penalty of a compelling purpose, and execution belies narrow tailoring.  Lastly, this Article argues that the right-to-life challenge is not inconsistent with the Fifth Amendment’s text or the elephant in the room: abortion rights.

Although the Eighth Amendment has paved the road toward judicial abolition of the death penalty, there remains no end in sight, no welcome sign on the horizon.  The road less traveled is substantive due process: the right to life of the condemned.  On the long road toward abolition, this Article argues that two lanes are better than one.

November 29, 2018 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

November 28, 2018

SCOTUS argument in Timbs suggest agreement on incorporation of Excessive Fines Clause and perhaps little else

In this post yesterday previewing today's SCOTUS oral argument in Timbs v. Indiana, I confidently predicted that the Justices will decide that the Excessive Fines Clause applies to the states, and further suggested that the Court may be too divided to say much more about the application of the EFC.   My prediction was not especially bold, but reports on the argument suggest that it is on the right track.

From SCOTUSblog: Argument analysis: Court appears ready to rule that Constitution’s bar on excessive fines applies to the states:

Although the only question before the justices in Timbs’ case was whether the Eighth Amendment’s excessive fines clause applies to the states, the justices spent very little time on that question, because there appeared to be broad agreement on the court that it does....

There seemed to be significantly less agreement among the justices on the scope of the right – that is, whether fines like the forfeiture of Timbs’ car do indeed violate the excessive fines clause. Chief Justice John Roberts was unsympathetic, telling attorney Wesley Hottot, who represented Timbs, that Timbs’ Land Rover “was an instrumentality of the crime. This is how he got to the deal place and how he carried the drugs.” If a defendant was carrying the drugs in his car, Roberts stressed, “I think it’s pretty well-established” that the car can be forfeited....

Given the near consensus on the Supreme Court that the excessive fines clause applies to the states, the justices are likely to say so, but without much more. That could still be good news for Timbs, because two lower courts agreed with him that the forfeiture of the Land Rover was excessive; the Indiana Supreme Court ruled only that the excessive fines clause does not apply to the states at all.

From The Volokh Conspiracy: Today's Supreme Court Oral Argument in Timbs v. Indiana Suggests Justices are Likely to Apply Excessive Fines Clause to State Asset Forfeitures:

Today's oral argument makes clear that the Court will almost certainly rule that the Excessive Fines Clause does indeed apply to the states.  The justices also seem likely to rule that at least some state asset forfeitures violate the Clause.  Both liberal and conservative justices seemed to support Timbs on these two issues, especially incorporation.  It is hard to say, however, what — if anything — the Court will do on the question of how to define "excessive."  The justices could well decide to leave it to the lower courts, at least for the time being.

The full transcript of oral argument in Timbs v. Indiana is available at this link.

Prior (somewhat) related posts:

November 28, 2018 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"Lessons for Sentencing Reform and Reentry: A Case Study of Project New Opportunity"

The title of this post is the title of this new Center for Community Alternatives' Justice Strategies report. Here is its executive summary:

This study looks at the development and implementation of Project New Opportunity (PNO).  PNO was created to provide reentry support to people being released from federal prison under President Obama’s Clemency Initiative and the United States Sentencing Commission’s (USSC) 2014 reduction in drug sentencing guidelines.

Through the retroactive application of the guideline reforms, about 6,000 individuals were eligible to be released on November 1, 2016.  Another 1,928 were released though the Clemency Initiative. Yet except for probation supervision and Bureau of Prison (BOP) halfway houses, there were no reentry supports available to these individuals, many of whom had served decades in prison.

The Center for Community Alternatives (CCA) worked with Project Director Malcolm Young to design the PNO project to provide a model of reentry support for people released under these criminal justice reform efforts.  PNO is based on research both about the challenges that accompany the transition from prison to community and the role that formerly incarcerated people can play in helping newly released people make this transition.  Imprisonment leaves scars including post-traumatic stress responses, a lack of familiarity with the routines of daily life, and forms of culture shock as one confronts technological and other changes that have occurred during one’s time in prison.  These adjustment issues contribute to recidivism, which is highest within the first 6 months of release.

The key elements of PNO’s model are: 1) a staffing plan that relies on formerly incarcerated people as Reentry Consultants, and 2) an “inside/outside” connection that introduces incarcerated people to their Reentry Consultant six months prior to their release and continues after release.  The majority of PNO participants cited this pre-release connection with someone who will be there when they get out as the primary benefit of the program.

PNO adds yet another example to the growing body of evidence that shows that sentencing reform, shorter sentences and early release mechanisms are reasonable and humane without jeopardizing public safely.  While PNO was unable to track recidivism of its participants through official data, it was able to follow up through the Reentry Consultants and/or participants themselves.  The information, while informal, is very encouraging: there were no known incidents or reports of rearrests, violations of the terms of probation supervision, or incarceration from the consultants or participants.  This suggests that PNO was able to help people stabilize and avoid new encounters with the criminal justice system in the immediate aftermath of release.

November 28, 2018 in Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Despite push by Prez and VP and support of at least 70 senators, odds of a Senate vote on FIRST STEP Act still reportedly "less than 50/50"

Politico has this lengthy report, headlined "White House makes last-ditch push on criminal justice reform bill," on the state of debate among Senate Republicans concerning the FIRST STEP Act.  Here are details:

The Trump administration and a bloc of Republican senators are making a last-ditch attempt to pass a criminal justice reform bill in the lame duck session.

In a closed-door party lunch on Tuesday, Vice President Mike Pence made a strong endorsement of the bill to Senate Republicans, senators said, emphasizing that the GOP could take a clear win in the lame duck with passage.  And supporters said they picked up votes during the discussion; one supportive GOP senator said they’ve accrued more than 20 hard “yes” votes and that another dozen or so GOP senators are gettable, which would likely be enough to easily pass the bill — if leadership will bring it up.

Senate Majority Leader Mitch McConnell (R-Ky.) maintained his poker face at the meeting, other than to reiterate the Senate’s short calendar.  Asked to assess the prospect that McConnell will put the sentencing and prison reform bill on the floor, one attendee said: “Less than 50/50.”...

“A lot of people like me are still trying to understand what it does,” said Sen. Bob Corker (R-Tenn.), who characterized Tuesday’s critical meeting as a “higher level discussion of whether we should attempt to do it.”

As they assess the bill‘s prospects, GOP leaders are also asking senators whether they'd prefer to deal with the bill next year after Democrats take over the House, according to two sources familiar with the matter.  That would dismantle a fragile bipartisan agreement and require Republicans and Democrats alike to essentially start over.

Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) is still trying to garner more support for the bill, which would lower mandatory minimum sentences for some drug-related felonies, expand a program for early release, promote training programs in prison and require inmates be placed in prisons closer to their homes. He and other advocates say they are open to changing the bill’s treatment of some criminals in order to win new supporters.

“We’re still working on getting additional yeses or additional cosponsors,” Grassley said, noting that the only way to overcome opposition from Sen. Tom Cotton (R-Ark.) and others was to increase co-sponsorship. He added that “we’re talking about no announcement before a couple days.”

McConnell is loath to take up the bill on the floor to prevent a circular firing squad among Republicans. But that’s already happening both in public and private: After trading blows on Twitter in recent days, Sen. Mike Lee (R-Utah) and Cotton each gave opposing speeches about the bill in the lunch.

But supporters said they have the momentum and estimated only a half-dozen Republicans will be difficult to convince: Cotton, Sen. John Kennedy (R-La.), Ben Sasse (R-Neb.), Jim Risch (R-Idaho) and Deb Fischer (R-Neb.).  “Over half of the Republicans are for it, and maybe 80 percent, 90 percent, maybe all of the Democrats support it,” Sen. Rand Paul (R-Ky) said. “Things are all moving in the right direction.”

Still, Sen. Marco Rubio said that he is skeptical of the bill, particularly when it comes to classification of crimes and said he is “not sure there is anything” that could win him over. And a small bloc of Republicans, led by Cotton and Kennedy, are vocally going after the bill.  Kennedy called it “ass backwards” in an interview and said he had “serious philosophical problems with the criminal justice bill.” It “takes all our authority and gives it to a bunch of bureaucrats,” he said.

The Senate also needs to pass a spending bill by Dec. 7 to avoid a partial government shutdown, and lawmakers are trying to wrap up negotiations around the Farm Bill. The criminal justice bill is regarded as a “maybe” that could potentially wait until next year. A version of the bill has already passed the House.

Senate Majority Whip John Cornyn (R-Texas) said that the bill “is still being evaluated and people are still trying to figure out where they stand.” He said McConnell has made no final decision....

But no matter what, there will be detractors.  Cotton told reporters Tuesday that while the House’s version of the bill was “fixable,” the Senate’s draft of the legislation has “gone consistently to the left.” 

If only a handful of Republicans supported this bill, I could understand why (but would still be frustrated) the Senate Majority Leader would not want to bring forward a bill favored more by his opposing party than by his own party.  But this Politico report reinforces my sense that a majority of GOP Senators would vote for the FIRST STEP Act and that a super-majority of all Senators (representing a super-super majority of the nation's population) want this legislation enacted.  That a few Senators from a few states can, in essence, exercise a heckler's veto highlights why thoughtful federal criminal justice reform has been so very hard.  Sigh.

Some of many prior related posts:

November 28, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Drug Offense Sentencing, Marijuana Legalization in the States, Prisons and prisoners, Who Sentences | Permalink | Comments (6)

November 27, 2018

New York Court of Appeals rules noncitizen defendants have Sixth Amendment jury trial right when charges carry potential penalty of deportation

The top court in New York issued an interesting opinion today concerning the application of the Sixth Amendment's jury trial right, as reported here via Courthouse News Service: 

Since noncitizens can be deported after convictions on mere misdemeanors, they are entitled to have those charges decided in jury trials, New York’s highest court ruled 5-2 Tuesday.

The ruling stems from the 2012 prosecution of Saylor Suazo with numerous assault and harassment crimes.  Suazo, who remained in the United States illegally after his visa expired, was accused of throwing the mother of his children to the floor, and then choking and beating her.  A month later he was charged with criminal contempt after he violated a restraining order.

Before trial, prosecutors had the charges reduced to class-B misdemeanors, which are usually punishable by 90-day maximum sentences and qualify as petty crimes that can be tried summarily without a jury.  Suazo nevertheless could face deportation proceedings if convicted, but the trial judge disagreed that this entitled him to a jury trial.

After the bench trial concluded in 2012, Suazo was found guilty of the assault charge, as well as menacing, obstruction of breathing or blood circulation, and attempted criminal contempt.  A three-judge appellate panel affirmed the judgment, finding that deportation is a collateral consequence of conviction, but the New York Court of Appeals reversed 5-2 on Tuesday.

Writing for the majority, Judge Leslie Stein called it technically correct that deportation is a civil collateral consequence of a state conviction.  She also noted, however, that deportation is practically inevitable when noncitizens face even class-B misdemeanors.  “Detention — which closely resembles criminal incarceration — may last several days, or it may last months or years,” Stein wrote.  “A noncitizen who is adjudicated deportable may first face additional detention, followed by the often-greater toll of separation from friends, family, home, and livelihood by actual forced removal from the country and return to a land to which that person may have no significant ties,” the 22-page opinion continues....

Judges Michael Garcia and Rowan Wilson dissented separately from the majority.  In his dissent, Garcia wrote that the threat of deportation does not automatically transport petty crimes into serious ones covered by the Sixth Amendment, and that the U.S. Supreme Court must weigh in on the issue.  Garcia also noted the majority’s ruling carves out special treatment for deportation and could also lead to a right to jury trials in other class-B misdemeanor cases, such as those that result in the loss of public housing....

Attorney Mark Zeno of the Center for Appellate Litigation, who represented Suazo, praised the ruling and noted that the D.C. Circuit also has upheld the right to jury trials for noncitizens facing deportation.

A spokeswoman for the Bronx District Attorney Office meanwhile said that the ruling conflicts with U.S. Supreme Court precedent.  “We understand that while the Court of Appeals addresses the harsh realities presented by the possible consequence of deportation for noncitizens, its decision presents conflicts with existing Supreme Court precedent that must be resolved,” the spokeswoman said in a statement.  “This decision creates ramifications, including serious backlogs and disparities in the administration of justice, for the courts of this state.  We are considering taking the case to the Supreme Court to address the crucial questions this decision presents.”

November 27, 2018 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0)

Previewing SCOTUS consideration of civil forfeiture in Timbs v. Indiana from many sources

On Wednesday morning, the Supreme Court will hear oral argument in Timbs v. Indiana to consider whether the Eighth Amendment's prohibition of excessive fines applies to the states.  I am reasonably confident that the Justices will decide that the Excessive Fines Clause does apply to the states, but I am not so confident about what more the Court will say about the application of the EFC to the interesting (and fairly simple) facts surrounding the forefeiture of Tyson Timbs' Land Rover. 

Because there is a whole lot worth saying about the facts and law surrounding Timbs, I figured I would link to a whole bunch of folks from a whole bunch of sources discussing this case.  So:

Prior (somewhat) related posts:

November 27, 2018 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Meek Mill continues to shine a light on the need for criminal justice reform

As noted in this post, after being released from prison earlier this year, rapper Meek Mill pledged to use his spotlight to "shine a light" on how America's criminal justice systems treat people of color.  He has made good on that pledge in various ways, including through this recently published New York Times opinion piece with this extended headline: "Meek Mill: Prisoners Need a New Set of Rights; Like many who are now incarcerated, I was the victim of a miscarriage of justice.  I got lucky, but because of dysfunctional, discriminatory rules, most don’t."  Here is an excerpts from this commentary:

Like many who are currently incarcerated, I was the victim of a miscarriage of justice — carried out by an untruthful officer, as determined by the Philadelphia District Attorney’s office, and an unfair judge.

My crime? Popping a wheelie on a motorcycle in Manhattan. Even though the charge was dismissed in a New York City court, a Philadelphia-based judge still deemed my interaction with the police to be a technical violation of my probation — stemming from a 2007 arrest — and sentenced me to two to four years in prison despite the fact that I didn’t commit a crime. The judge also refused my motion for bail, calling me a “danger to the community” and a “flight risk.”

The ordeal cost me my most precious commodity: my freedom. I served five months. With the help of friends and the intervention of the Pennsylvania Supreme Court, I was released on bail this past April and was able to resume my life.

But I know I’m the exception to the rule — a lucky one. It’s clearer than ever that a disproportionate number of men and women of color are treated unfairly by a broken criminal justice system. The system causes a vicious cycle, feeding upon itself — sons and daughters grow up with their parents in and out of prison, and then become far more likely to become tied up in the arrest-jail-probation cycle. This is bad for families and our society as a whole....

We all need to hold our lawmakers accountable for supporting unfair or inhumane policies and all practices that perpetuate injustice, especially for the blacks and Latinos who fall prey to them most frequently. The reality is African-Americans and Latinos who come from poverty-stricken neighborhoods are assigned public defenders too overburdened to do anything in most cases other than negotiate the most favorable plea deal, regardless of guilt or innocence.

Soon, some friends and I will be announcing a foundation dedicated to achieving real change. In the meantime, if you’re interested in joining us and lending your support to solving what is the moral crisis of our time, please visit www.reformnow.com and sign up.

Together, we will demand stronger prison rehabilitation programs, updated probation policies — including shortened probationary periods — an improved bail system and balanced sentencing structures.

It’s a shame that model probationers can be immediately put back behind bars simply for missing curfew, testing positive for marijuana, failing to pay fines on time or, in some cases, not following protocol when changing addresses. Our lawmakers can and should do away with these “technical violations.”

And more broadly, if they’re serious about reducing mass incarceration and unnecessary government surveillance, they should introduce legislation that allows people on probation to earn a reduction in probation time for good behavior so that entire swaths of people aren’t spending the majority of their adult lives on probation as I did.

Prior related posts:

November 27, 2018 in Celebrity sentencings, Procedure and Proof at Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

FIRST STEP Act, already compromised to cater to tough-on-crime crowd, may be watered down further for Senate vote

The Washington Post is reporting in this new article, headlined "Senate Republicans mull changes to controversial criminal justice bill," that there is talk of further gutting the few sentencing reform provisions in the latest version of the FIRST STEP Act and creating still further prison reform carve outs.  Here are the details:

Senate Republicans are actively discussing changes to a controversial overhaul of the criminal justice system in a bid to win more GOP support that could nonetheless shatter a delicate bipartisan compromise on one of President Trump’s top legislative priorities left for this year.

The changes being mulled, confirmed by senators and others familiar with the talks, reflect in part proposals put forward by the National Sheriffs’ Association, which is opposed to the legislation as written.  Though a slew of law enforcement groups already support the bill, getting more of them on board is almost certain to improve its prospects among Republicans.

One change that has been discussed privately is tightening the “safety valve” provision, which provides more discretion to judges when they issue sentences.  Though the most recent public draft of the bill would allow judges to take advantage of those “safety valves” in more types of cases, Sen. David Perdue (R-Ga.) said senators are talking about reducing the types of convictions that would qualify for the “safety valve” provision.  Perdue also said senators are considering narrowing the kinds of fentanyl-related crimes that would be eligible under the legislation, which broadly is meant to loosen some mandatory minimum sentences and help rehabilitate prisoners.

“I’m probably going to be supportive of it,” said Perdue, who was a vocal opponent of a more expansive version of the legislation two years ago. “It does some things that we’ve been talking about that Georgia and North Carolina and Texas have done, with good results.”

A provision that gets rid of the “stacking” regulation — which is used to add more penalties against those who commit a drug-related crime while possessing a gun, even if the firearm wasn’t used — is also ripe for potential changes to win over Senate Republicans.

The changes under negotiation reflect the messy, closed-door horse-trading that will only grow as Senate leaders begin gauging support for the bill this week, even if attempts to change the legislation are ultimately unsuccessful.  Senate Democrats, who believe they have already made significant concessions, aren’t eager for more changes that would push the bill further to the right, considering it already has Trump’s endorsement and appears it could easily pass the House.

“I’m aware of the discussions, but we have a strong commitment on both sides of the aisle, including the White House, that the bill is what it is,” Sen. Cory Booker (N.J.), one of the main Democratic authors of the bill, said Monday evening of the changes being discussed. “I believe we should all be standing pat and firm.”

The bill’s supporters — both Republicans and Democrats — are also rushing against the clock, scrambling to get the measure signed into law this year before Democrats gain control of the House.  The new majority, particularly the generation of lawmakers partly elected on a message of racial justice, could be more emboldened to push for more sweeping changes than the limited overhaul, upsetting the compromise.

Another change that has been floated privately is including additional categories of sex offenders in the group of inmates who would be ineligible for early release, according to one Senate official....

While the discussions continue, the ranks of publicly opposed senators are growing. Sen. Marco Rubio (R-Fla.) has been privately speaking with Sen. Mike Lee (R-Utah) and Sen. Tim Scott (R-S.C.) — two of his closest allies — but stressed Monday that while he is on board with the overhaul to the prison systems and recidivism programs, he is concerned about the proposed changes to sentencing laws. “Now that we’re getting to the guts of it, I need to have a better understanding,” Rubio said. But “as of now, I can’t support it, given my understanding of it.”

Trump, meanwhile, has not wavered from his public commitment to the First Step Act and overhauling the criminal justice system — the subject of a Monday roundtable in Mississippi that was sandwiched between two campaign rallies. After endorsing the bill with much fanfare at a White House ceremony this month, Trump again pushed Senate Majority Leader Mitch McConnell (R-Ky.) for a floor vote in a private phone call last Tuesday, according to people briefed on the conversation.

“Well, we’re talking to him, and we’re doing a count,” Trump said Monday in Mississippi of his discussions with McConnell. “We want to make sure that we have the votes because we don’t want to bring it if we don’t have the votes, but another thing we’re looking at right now is that we have more than enough. So at a certain point, we’ll have a talk. But we have the votes, and I’m sure that we’ll be voting soon.”

Especially in light of this new reporting, it is worth watching how Prez Trump talked up the FIRST STEP Act again at this Mississippi roundtable event Monday night, and also worth noting how VP Mike Pence and Senator Lindsay Graham also talked up the bill.  Because of how much Prez Trump seems to be leaning into this legislation, I now think it would be a big loss for him if there isn't a vote on the bill (and Prez Trump himself said at the roundtable event the bill could get 80 votes in the Senate).  So, based on all of this buzz, I am now thinking a Senate vote is going to happen, but that Senator Cotton and perhaps a few other hardliners will find various ways to continue watering down the bill up until a vote finally goes forward.

As I have said repeatedly in this space, any positive reform is better than no reform.  So I am continuing to hope we see a bill become law in the weeks ahead.  But I also hope everyone supporting of real reforms takes to heart that this bill will be, as it name connotes, just a small first step in a very long path toward needed federal criminal justice reforms.

Some of many prior related posts:

UPDATE: The White House has provided here the full transcript of "Remarks by President Trump at FIRST STEP Act Roundtable with Governor Bryant and Law Enforcement Leaders." They start substantively this way:

We’re here today to discuss a landmark prison reform bill called the FIRST STEP Act — so important.  This legislation will help former inmates reenter society as productive law-abiding citizens and it has tremendous support no matter where we go. Tremendous support.  Beyond anything I would’ve expected.

November 27, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Mandatory minimum sentencing statutes, Prisons and prisoners, Who Sentences | Permalink | Comments (2)

November 26, 2018

Special counsel saying Paul Manafort is breaching his plea agreement by lying "on a variety of subject matters"

As reported in this ABC News piece, "Prosecutors with special counsel Robert Mueller’s legal team told a judge Monday night that President Donald Trump’s one-time campaign chairman Paul Manafort has breached his cooperation agreement and lied to investigators." Here is more about the latest trouble for Manafort, which became public via this filing:

“After signing the plea agreement, Manafort committed federal crimes by lying to the Federal Bureau of Investigation and the Special Counsel’s Office on a variety of subject matters, which constitute breaches of the agreement,” the filings says.

Manafort’s legal team has disputed that charge, telling a federal judge that the embattled former Trump adviser “believes he has provided truthful information and does not agree with the government’s characterization or that he has breached the agreement.”

The DC court filing brings to a head weeks of speculation that Manafort’ s cooperation with the special counsel could be breaking down. Earlier this month, there were mounting tensions between Mueller and Manafort over Manafort’ s apparent lack of cooperation with the investigation, multiple sources familiar with the matter told ABC News. 

Manafort had been fielding questions about a wide range of topics since September when he initially agreed to cooperate, the sources said. But special counsel prosecutors were “not getting what they want,” one source with knowledge of the discussions said.

As noted in this post from September, Manafort's plea deal seemed to cap his sentencing exposure at 10 years despite a calculated guideline sentencing range much higher. This latest filing does not ensure that the feds will now seek or secure a sentence higher than 10 years for Manafort, but it certainly suggests that the special counsel office will object strongly to Manafort's likely arguments for a much lower sentence.

Some prior related posts:

November 26, 2018 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, White-collar sentencing, Who Sentences | Permalink | Comments (2)

Senator Tom Cotton continuing to do everything he can to try to keep the FIRST STEP Act from moving forward

Senator Tom Cotton continues to work with all his might to halt Congress from taking any reform steps via the FIRST STEP Act, and his latest efforts involve this new National Review commentary and what is reported here by Politico under the headline "Cotton wields sex offender report to tank prisons bill."  Here is how Senator Cotton himself gets started at NR:

It remains to be seen whether the lame-duck 115th Congress will debate a sweeping overhaul of our federal criminal-justice system before we adjourn for the year. You may have heard about the legislation at hand, the FIRST STEP Act. I oppose it. I urge my fellow conservatives to take the time to read and understand the bill before signing on in support of this flawed legislation.

The 103-page bill that was released the Friday before Thanksgiving has some good parts, and I don’t question the intentions of the bill’s proponents. But you may have noticed that they talk more about their intentions than about the consequences of the bill. As conservatives, we know that good intentions say little about actual consequences. And to paraphrase Thomas Sowell, intellectuals who generate ideas with good intentions rarely have to face the consequences of those ideas personally.

When proponents of the bill discuss the substance, they claim that “nothing in the FIRST STEP Act gives inmates early release.” Instead of early release, proponents say, it merely provides incentives for inmates to participate in programs. This is nothing but a euphemism. Let there be no doubt: If the bill is passed, thousands of federal offenders, including violent felons and sex offenders, will be released earlier than they would be under current law. Whatever word games the bill’s proponents use will make no difference to the future victims of these felons.

Here is what Politico is reporting:

GOP Sen. Tom Cotton is locked in an awkward fight with fellow Republicans over their push to change federal prison sentencing guidelines. And now he has a new attack line intended to make his rivals squirm: Warnings that sex offenders could get off easy.

A new Justice Department analysis — conducted at Cotton‘s request — found that the Senate’s bipartisan sentencing and prison reform bill could make people convicted of some sex crimes eligible for early release. And though President Donald Trump supports the bill, Cotton says the DOJ confirmation underpins his argument that convicts of certain sex-related crimes could accrue credits making them eligible for supervised release or “pre-release” to a halfway house.

While GOP leaders are beginning to assess the prospects of the bill on the Senate floor, the Arkansas Republican argues that the latest version of the bill has been rushed and contains significant flaws and is hoping to sway undecided Republicans to join him. Cotton and Sens. Chuck Grassley (R-Iowa) and Mike Lee (R-Utah) have been battling over the specifics of the bill since it was released in mid-November, exactly the type of intraparty firefight Senate Majority Leader Mitch McConnell (R-Ky.) has been hoping to avoid.

The argument over the bill's treatment of sex offenders took center stage on Monday, drawing the latest public shots between the warring Republican senators. “Now that the Department of Justice has confirmed that the Senate FIRST STEP Act offers early release to multiple categories of sex offenders in several provisions of the bill, Congress should fix these problems instead of ramming this bill through. There is no such thing as a ‘low-risk violent sex offender’ who deserves earlier release than under current law," Cotton said in an emailed statement.

A spokesman for Lee defended the legislation in response to the DOJ analysis on Monday and accused the bill’s opponents of “spreading fake news” about the bill. “Just because a federal offense is not on the specific list of ineligible offenses doesn’t mean inmates who committed non-specified offense will earn early release. All inmates must first pass a DOJ risk assessment before they can even begin earning good time credits. And then they must secure certification from their warden that they are not a threat to safety before they can be released,” said Conn Carroll, a Lee spokesman. Carroll added that Lee is open to revising the bill if it turns opponents into supporters: “If adding to the list of specifically forbidden offenses would get some senators to yes, we would love to help them do that on the Senate floor.”

Their colleagues are watching closely. Sen. Marco Rubio (R-Fla.) said that a Cotton op-ed panning the bill made a "compelling argument" and indicated his vote is in play. A number of Trump's allies, from Grassley to Sen. Rand Paul (R-Ky.) to Lindsey Graham (R-S.C.) are behind the bill, but in the Senate even a small band of opposed senators can make a floor debate stretch out for a week — all while lobbing attacks at fellow Republicans for being soft on crime.

"I'd like to get it through but we still have a few problems that we ought to work out," said Sen. Orrin Hatch (R-Utah). "I'm for doing it if we can. We have a shot at it but we're going to have a lot of cooperation."

Senior Senate Republicans said on Monday they could not predict what McConnell will do. The president has lobbied McConnell to bring up the bill, but the GOP leader has told Trump the Senate's schedule is crowded over the next month. McConnell has emphasized that funding the federal government by the Dec. 7 deadline and finishing a farm bill are his top priorities. And the House would probably have to vote on whatever the Senate passes on criminal justice reform, and ousted House Republicans may want to head home as soon as the funding bill is finished.

November 26, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (2)

An notable debunking of "Three Myths From Critics of Criminal Justice Reform"

Ken Cuccinelli, the former Attorney General of Virginia, has this lengthy new commentary at The American Spectator headlined "Three Myths From Critics of Criminal Justice Reform: They need to be knocked down." I recommend the piece in full, and here are some excerpts:

Criminal justice reform — thanks, in part, to an overwhelming 360-59 vote in the House on the FIRST STEP Act — has quickly gained momentum, championed by conservatives as a down payment towards ensuring that prisoners re-entering society do so with the tools they need to succeed. President Trump, who campaigned on restoring law and order, has been a vocal supporter of prison reform since earlier this year, and has recently signaled support for various sentencing proposals, as well.

But not everyone agrees. Senator Tom Cotton, a long-time skeptic of criminal justice reform, penned an article in the Wall Street Journal this summer in which he generally praised rehabilitation efforts in federal prisons but took sentencing reform to task, calling it a “foolish approach” that would “endanger communities.”  Meanwhile, now-former Attorney General Jeff Sessions has been critical of reform efforts as well, claiming that changes in drug sentencing risks allowing violent crime to run amok.  Research and, most importantly, experience — particularly in southern red states — inform us that both arguments lie on shaky, outdated foundations.  As the Senate appended modest sentencing proposals to the FIRST STEP Act, it is worthwhile to separate facts from fiction.

Myth #1: Drug crimes are inherently violent.

Among the subtler tactics that critics of federal sentencing reform employ is a simple progression: begin with discussion of America’s real, ongoing problem with drugs; immediately shift the focus to violent crime, as if the two issues are self-evidently identical; and then argue that the reason for America’s historical reduction in violent crime can be traced to the adoption of lengthy mandatory sentences for drug dealing.

This may make for a neatly packaged argument, but reality spins a far more complicated tale. First, plain observation of drug overdoses and violent-crime trends simply doesn’t lend itself to correlation. Between 1999 and 2016, drug overdose death rates increased by over 200 percent, while violent crime rates fell by over 26 percent. These skyrocketing overdose deaths occurred despite an entire bevy of mandatory sentencing tools available to federal authorities that were ostensibly enacted to curb the worst consequences of drug crimes. Instead, such sentences have had no discernible effect on deaths caused by drugs....

Myth #2: Longer prison sentences equals less crime....

While a simple fact is that research has yet to pinpoint the factor(s) most responsible for our historic reduction in crime, the weight of evidence is clearly against those theories which emphasize imprisonment — particularly imprisonment meant to discourage drug use.

According to a comprehensive analysis of the dramatic rise of incarceration rates and its affects by the National Research Council, there is an outward “plausibility to the belief that putting many more convicted felons behind bars would reduce crime.” However, the authors explain that even a cursory examination of the data reveals the “complexity” of drawing meaningful correlations between crime and incarceration rates:

Violent crime rates have been declining steadily over the past two decades, which suggests a crime prevention effect of rising incarceration rates. For the first two decades of rising incarceration rates, however, there was no clear trend in the violent crime rate — it rose, then fell, and then rose again. While incapacitation effects may be effective when targeted towards “very-high rate or extremely dangerous offenders,” the authors conclude that the “incremental deterrent effect of increases in lengthy prison sentences is modest at best.”...

Criminal justice reform is engineered to incentivize participation in substance-abuse treatment and other recidivism-reduction programs, or otherwise to curb overly-punitive sentences which may extract their pound of flesh but also rapidly lose their effectiveness as one moves down the offense severity ladder.

To summarize, weightier factors besides simply “locking up” criminals must be at play to account for crime reduction. Ascribing that reduction solely to lengthy sentences is a theory that doesn’t play well with the data — especially given the fact that thirty states have recently experienced crime rate reductions while simultaneously reducing their prison populations.

Myth #3: No one goes to federal prison for “low-level, non-violent” drug offenses.

It is easy to produce a statistic that there are relatively few people incarcerated for federal drug possession offenses and then brush one’s hands together with satisfaction, believing that the “we overincarcerate” canard has just been dispelled. But while this immediate fact is indeed true, putting it into context makes this line of argument less salient.

First, consider the composition of all federal drug offenders. In 2017, about 48 percent of drug offenders sentenced at the federal level — a majority of whom are trafficking offenders — were in the lowest criminal-history category, having been previously sentenced for, at most, one low-level offense.  Roughly 60 percent were in the lowest two categories.  To be sure, drug trafficking, which includes street-level dealing, involve more serious offenses.  Even so, there are still tens of thousands of federal inmates being incarcerated — for historically longer periods of time — for lower-level drug offenses.  Recidivism is a real problem, but federal prison is a big stick, and shouldn’t be the front-line corrective for every offense. Too often it is, even for simple possessors (over 80 percent of whom receive a term of imprisonment)....

We must begin shifting the paradigm away from using mandatory sentences as the obvious tool against lawbreaking — as states such as Florida, South Carolina, and Texas have done. Crimes should be punished, but the law loses its legitimacy when it punishes disproportionately.  The FIRST STEP Act — along with modest sentencing reforms — will help regain the law’s moral force and make us safer at the same time.

November 26, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

"Layers of Bias: A Unified Approach for Understanding Problems With Risk Assessment"

The title of this post is the title of this article recently published by the journal Criminal Justice and Behavior and authored by Laurel Eckhouse, Kristian Lum, Cynthia Conti-Cook and Julie Ciccolini.  Here is the article's abstract:

Scholars in several fields, including quantitative methodologists, legal scholars, and theoretically oriented criminologists, have launched robust debates about the fairness of quantitative risk assessment. As the Supreme Court considers addressing constitutional questions on the issue, we propose a framework for understanding the relationships among these debates: layers of bias.

In the top layer, we identify challenges to fairness within the risk-assessment models themselves.  We explain types of statistical fairness and the tradeoffs between them.  The second layer covers biases embedded in data.  Using data from a racially biased criminal justice system can lead to unmeasurable biases in both risk scores and outcome measures. The final layer engages conceptual problems with risk models: Is it fair to make criminal justice decisions about individuals based on groups?  We show that each layer depends on the layers below it: Without assurances about the foundational layers, the fairness of the top layers is irrelevant.

November 26, 2018 in Data on sentencing, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

November 25, 2018

Student SCOTUS preview: starting a series of posts on United States v. Haymond

6a00d83451574769e201b7c9134b4d970b-320wiIn this post last year I noted the interesting constitutional procedure opinion handed down by the Tenth Circuit in US v. Haymond, No. 16-5156 (10th Cir. Aug 31, 2017) (available here), and in this post last month I noted that the  Supreme Court accepted the petition for certiorari filed by the federal government in the case.  I am very lucky to have a great student, Jim McGibbon, who is very interested in the Haymond case, and he has agreed to draft a series of preview posts on the case.  Here is this first one:

The Supreme Court, on October 26, 2018, granted certiorari in United States v. Haymond.  The case concerns the constitutionality of a federal statutory provision which imposes a mandatory minimum prison sentence for federally-convicted sex offenders who commit another sexually-related offense while serving a term of supervised release.

A federal district court, in 2010, convicted Haymond of possessing child pornography and sentenced him to thirty-eight months of prison and ten years of supervised release.  A sentencing judge is authorized to impose a supervised release sentence based on 18 U.S.C. § 3583(a), a provision of the Sentencing Reform Act of 1984.   Supervised release has long been considered, in the words of the Tenth Circuit, “part of the sentence” for the original crime as are the various terms and conditions that an offender must comply with during the period of supervised release.  Violation of the conditions of supervised release sometimes can result in revocation and additional prison time, but the Supreme Court in Johnson v. United States, 529 U.S. 694 (2000), described “postrevocation sanctions as part of the penalty for the initial offense.”  Id. at 700.

On April 24, 2013, Haymond was released from prison, and he began serving his 10-year term of supervised release.  Two years into his supervised release, Haymond’s probation officers conducted a surprise search of Haymond’s apartment.  The officers seized a password-protected cellphone and a personal computer belonging to Haymond, as well as other computers belonging to a roommate or in the apartment.  Finding images of child pornography on the phone, the probation officers alleged Haymond violated his terms of supervised release on various grounds. 

Haymond was subject to a supervised release revocation hearing before a district judge, a unique hearing generally considered comparable to parole revocation in which the "full panoply of rights due a defendant ... does not apply.”  Morrisey v. Brewer, 408 U.S. 471, 480 (1972).  The district court found by a preponderance of the evidence that Haymond had violated 18 U.S.C. § 2252 by possessing child pornography.  Based on this finding, the court revoked Haymond’s supervised release and sentenced him to a mandatory five years in prison pursuant to § 3583(k) and an additional five years of supervised release.  The relevant portion of 18 U.S.C. § 3583(k) provides that sex offenders on supervised release who commit “any criminal offense under chapter 109A, 110, or 117, or section 1201 or 1591, for which imprisonment for a term longer than 1 year can be imposed, the court shall revoke the term of supervised release and require the defendant to serve a term of imprisonment … not less than 5 years.”

Haymond appealed to the Tenth Circuit Court of Appeals, arguing that “(1) that the presence of images in his phone cache was insufficient to show by a preponderance of the evidence that he knowingly possessed child pornography, and (2) that 18 U.S.C. § 3583(k) is unconstitutional because it deprives him of due process.”  The Tenth Circuit affirmed the district court’s finding of child pornography possession and the revocation of Haymond’s supervised release, but vacated the mandatory sentence and remanded the case back to the District Court for resentencing.

A split panel of Tenth Circuit held that 3583(k) was unconstitutional for two reasons.  The majority first asserted that the statute impermissibly strips the sentencing judge of discretion established under Booker and its progeny because it imposes a mandatory minimum sentence.  The court also asserted that it unlawfully imposes heightened punishment using  a preponderance of the evidence standard based on new conduct which contradicts the requirements of Apprendi and Alleyne

The government filed a petition for a writ of certiorari on June 15, 2018 posing this question for review:

Whether the court of appeals erred in holding “unconstitutional and unenforceable” the portions of 18 U.S.C. 3583(k) that required the district court to revoke respondent’s ten-year term of supervised release, and to impose five years of reimprisonment, following its finding by a preponderance of the evidence that respondent violated the conditions of his release by knowingly possessing child pornography. 

With certiorari granted last month and the briefs forthcoming, this case poses the potential to impact not only the operation of federal supervised release revocation, but also the future of Apprendi rights. 

In coming posts, the briefs filed by the parties and potential amici will be discussed.

Prior related posts:

November 25, 2018 in Blakely in the Supreme Court, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

"Paroling elderly inmates is humane solution to costly mass incarceration"

The title of this post is the headline of this new Hill commentary authored by Marc Schindler. Here are excerpts:

[G]rowth in long prison sentences has done little to improve public safety, with states that have reduced incarceration levels experiencing larger drops in crime than states that continue to incarcerate people at very high rates.  But it has contributed to a rapidly expanding population of incarcerated elderly people, so that our prisons now essentially function as expensive yet inhumane nursing homes.  In 1993, there were 45,000 incarcerated individuals over 50 years old; with the continuous growth, it is estimated that number will reach 400,000 by 2030.

For policymakers to significantly reduce the growing and costly prison population, strategies must include reform to long sentences for violent crimes.  Focusing reforms on reducing incarceration of geriatric people is an effective way to safely reduce the prison population.  Research indicates they are the least likely to pose a risk to public safety; criminal behavior typically peaks at 17 years old and then drops as an individual develops into adulthood.  While many states, such as California, Texas and New York, have expanded geriatric parole eligibility, it is infrequently used.

A naturally-occurring experiment, just a few miles from the nation’s capital, provides a roadmap for this strategy to safely reduce incarceration, create a more humane justice system and save significant taxpayer dollars.  A landmark court ruling — Unger v. Maryland — and the opportunities it created, offer powerful lessons for policymakers and stakeholders in tackling mass incarceration.  The 2012 case, centered on remedying improper jury instructions, applied to a cohort of 235 people sentenced prior to 1981.  In the six years since the decision, 188 people have been released; at release, the average age of the Ungers was 64, and the average term served was 40 years....

In the six years since the decision, we have learned a number of important lessons, the most significant of which is that the Unger experience proves we can safely release people who have committed a serious, violent offense.  And since they’ve been home, the Ungers have been contributing to their communities; as volunteers and mentors they help keep us all safer by encouraging youths to avoid the mistakes they made when they were younger.

One of the things that make the Ungers unique is that, thanks to an investment by the Open Society Institute-Baltimore, they received specialized reentry programming before and after release.  With that individualized support, the Ungers have had a less than 3 percent recidivism rate, a fraction of the Maryland rate of 40 percent.  This support is a significant advance over what most people receive and should be a model for governments across the country to replicate.

The Ungers were primarily convicted of homicide and rape, yet they have safely returned to the community. Too often we fail to take into consideration a research-based assessment of the risk of reoffending when making release decisions.  It is time to reconsider parole policies and assessment tools that disregard rehabilitation and continue to keep people locked up based solely on the severity of their underlying offense.

Imposing extremely long sentences, alongside low rates of parole, serves political motivations, not increased public safety.  By pivoting away from a parole approach focused solely on the crime committed, to one that assesses the current risk of re-offending and provides tailored re-entry services, states can safely reduce their prison population, save taxpayer money and create a fairer and more effective justice system in the process.  There are hundreds of thousands of geriatric-aged individuals in prisons across the country, many with the same profile as the Ungers.  Maryland alone could save over $100 million in the first year by reducing its low-risk geriatric population.

This commentary builds off this recent report by the Justice Policy Institute titled "The Ungers, 5 Years and Counting: A Case Study in Safely Reducing Long Prison Terms and Saving Taxpayer Dollars."

November 25, 2018 in Offender Characteristics, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (2)