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July 20, 2019

"Why the Founders Cherished the Jury"

The title of this post is the title of this essay recently posted to SSRN and authored by Jordan Richardson. Here is its abstract:

The Founders insistence on trial by jury was not just a preference for ritualistic formalities.  It was a prescriptive demand to protect liberty.  It shifted the authority for final decisions from government bureaucrats into the hands of citizens, so that “before an individual can lose her liberty in a criminal case, the people themselves must agree.”  The legislature could propose laws criminalizing behavior, the executive could enforce those laws with appropriate resources, and the judiciary could oversee the process to ensure legality.  But the institution of the jury was the final check to hold all three branches accountable.

July 20, 2019 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Two notable new stories of marijuana's still notable criminal justice footprint

Throughout most of the Unites States, millions of Americans are able to "legally" buy and sell marijuana for medical or recreational purposes.  (Of course, I put "legally" in quotes because all these activities are violations of federal law, but the laws and practices of states and localities define enforcement realities.)  Given all the "legal" marijuana activity, it can be dangerously easy to forget that the criminalization of marijuana is still a significant criminal justice reality for a significant number of individuals.  But these two new stories about arrests in two states provides an important reminder of this reality:

From the Washington Post, "Marijuana arrests in Va. reach highest level in at least 20 years, spurring calls for reform."  An excerpt: 

Nearly 29,000 arrests were made for marijuana offenses in Virginia last year, a number that has tripled since 1999, according to an annual crime report compiled by the Virginia State Police. Marijuana busts account for nearly 60 percent of drug arrests across Virginia and more than half of them were among people who were under 24, according to the data. The vast majority of cases involved simple possession of marijuana....

The Virginia Crime Commission found that 46 percent of those arrested for a first offense for possession of marijuana between 2007 and 2016 were African Americans, who represent about only 20 percent of Virginia’s population....

In Virginia, a first conviction for possessing marijuana is a misdemeanor that can result in up to 30 days in jail and a $500 fine. Subsequent arrests can result in up to 12 months in jail and a $2,500 fine. A defendant’s driver’s license is also revoked for six months for a drug conviction. The Virginia Crime Commission study found that only 31 people were in jail in July 2017 solely for a conviction of possessing marijuana in the state. The libertarian Cato Institute estimated Virginia spent $81 million on marijuana enforcement in 2016.

From Wisconsin Watch, "Blacks arrested for pot possession at four times the rate of whites in Wisconsin." An excerpt:

Almost 15,000 adults in Wisconsin were arrested in 2018 for marijuana possession, a 3% increase from 2017, according to data from the state Department of Justice.  Prison admissions in Wisconsin for marijuana also were higher in 2016 for black individuals than for whites, according to the state Department of Corrections. Some experts believe this disparity can be attributed to policing practices in low-income neighborhoods that tend to have more residents of color....

Under state law, possession of marijuana of any amount for a first-time offense can lead to up to six months in jail and a fine of up to $1,000. Any offense after that is classified as a felony and can result in a sentence of three and a half years in prison with a maximum fine of $10,000. 

I want to believe that recently increases in marijuana arrests are mostly a product of increased marijuana activity and not an extra focus on marijuana enforcement. But whatever the reason, I sincerely wonder if anyone sincerely believes that all of the time, money and energy expended for all these marijuana arrests serves to enhance justice or safety in these jurisdictions.

Cross-posed at Marijuana Law, Policy and Reform.

July 20, 2019 in Data on sentencing, Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Race, Class, and Gender | Permalink | Comments (0)

July 19, 2019

"The First Step Act of 2018: Risk and Needs Assessment System"

The title of this post is the title of this all-important 102-page document which was required by the FIRST STEP Act and was delivered on time by US Attorney General William Barr.  Here is the document's introduction:

On December 21, 2018, President Donald J. Trump signed the First Step Act of 2018 into law.  Title I of the First Step Act of 2018 (FSA or the Act) is focused on reforms to reduce recidivism among the federal prison population.  Many of Title I’s reforms hinge on the creation of a risk and needs assessment system.

Under the FSA, the Attorney General is charged with developing and releasing a risk and needs assessment system for use in the federal prison system.  With this report, Attorney General William P. Barr releases the First Step Act of 2018 Risk and Needs Assessment System.

This report outlines the work of the Department of Justice to develop and implement the Risk and Needs Assessment System (System).  It also introduces the new System that the Federal Bureau of Prisons will deploy in its facilities.  And the report announces the Department of Justice’s strategic plan to evaluate, validate, and enhance the System over time.

Chapter 1

Chapter 1, Developing the First Step Act of 2018 Risk and Needs Assessment System, details the requirements of the FSA regarding the development of a risk and needs assessment system, including the responsibilities of the Attorney General and the Independent Review Committee.  This chapter also summarizes the Department of Justice’s work to fully implement the Act’s requirements in creating the System.

Chapter 2

In Chapter 2, Characteristics of an Effective Risk and Needs Assessment System, this report identifies those characteristics and principles that are fundamental to developing an effective risk and needs assessment system.  This chapter also describes the valuable data and information that the Department of Justice received from our federal and state partners and experts in the field on developing a strong risk and needs assessment system. These characteristics, principles, and data informed the development of the System.

Chapter 3

Chapter 3, Te First Step Act of 2018 Risk and Needs Assessment System, describes the adopted System in detail, including the new assessment tool that will be deployed in the Federal Bureau of Prisons. This chapter then provides an explanation of the strengths of the tool and enhancements offered by the new System.

Chapter 4

Chapter 4, Implementing the First Step Act of 2018 Risk and Needs Assessment System, presents the Department’s strategic plan to fully and completely implement the System in the field. It also includes an agenda for continued engagement with experts, stakeholders, and the public on the System. Te chapter concludes by describing the significant resources that the Department of Justice is expending and will expend to implement the System.

July 19, 2019 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (2)

Highlights from DOJ press release and fact sheet on FIRST STEP Act implementation

The US Department of Justice today released this press release titled "Department Of Justice Announces the Release of 3,100 Inmates Under First Step Act, Publishes Risk And Needs Assessment System."  Here are some highlights:

The Department of Justice today announced three major developments related to the implementation of the First Step Act of 2018 (FSA):

  • Over 3,100 federal prison inmates will be released from the Bureau of Prisons’ (BOP) custody as a result of the increase in good conduct time under the Act. In addition, the Act’s retroactive application of the Fair Sentencing Act of 2010 (reducing the disparity between crack cocaine and powder cocaine threshold amounts triggering mandatory minimum sentences) has resulted in 1,691 sentence reductions.
  • The prioritization of $75 million in existing resources to fully fund the FSA implementation from the 2019 budget. The Department will continue its work with Congress to ensure additional funding is appropriated for FY2020 and future years.
  • The publication of the FSA Risk and Needs Assessment System (RNAS) that will help identify all federal prison inmates who may qualify for pre-release custody by participating in authorized recidivism reduction programming and/or productive activities....

Compassionate Release. The BOP updated its policies to reflect the new procedures for inmates to obtain “compassionate release” sentence reductions under 18 U.S.C. Section 3582 and 4205(g). Since the Act was signed into law, 51 requests have been approved, as compared to 34 total in 2018.

Expanded Use of Home Confinement. The FSA authorizes BOP to maximize the use of home confinement for low risk offenders. Currently, there are approximately 2,000 inmates on Home Confinement. The legislation also expands a pilot program for eligible elderly and terminally ill offenders to be transitioned to Home Confinement as part of a pilot program. Since enactment of the law, 201 inmates have qualified to be transitioned under the pilot program.

Drug Treatment. The BOP has always had a robust drug treatment strategy. Offenders with an identified need are provided an individualized treatment plan to address their need. About 16,000 BOP inmates are currently enrolled in drug treatment programs, including the well-regarded Residential Drug Abuse Program (RDAP).....

The Risk and Needs Assessment Tool – PATTERN

The Attorney General’s publication of a risk and needs assessment system was a key requirement of the FSA, signed into law by President Trump on Dec. 21, 2018. The publication of the RNAS report makes the changes in the law to good conduct time effective.

The RNAS is among several robust measures the Department has taken to implement the FSA, which seeks to reduce risk and recidivism among the prison population and assist inmates’ successful reintegration into society.  The new system will be used to assess all federal inmates for risk and identify criminogenic needs that can be addressed by evidence-based programs, such as drug treatment, job training, and education. The system was developed in consultation with the FSA-established Independent Review Committee (IRC), the BOP, the National Institute of Justice (NIJ), the Administrative Office of the U.S. Courts, the National Institute of Corrections, and over two dozen stakeholders groups.

The new tool to be used by the BOP is called the Prisoner Assessment Tool Targeting Estimated Risk and Needs (PATTERN). PATTERN is designed to predict the likelihood of general and violent recidivism for all BOP inmates. As required by the FSA, PATTERN contains static risk factors (e.g. age and crime of conviction) as well as dynamic items (i.e. participation or lack of participation in programs like education or drug treatment) that are associated with either an increase or a reduction in risk of recidivism. The PATTERN assessment tool provides predictive models, or scales, developed and validated for males and females separately.

The PATTERN assessment, modeled specifically for the federal prison population, achieves a higher level of predictability and surpasses what is commonly found for risk assessment tools for correctional populations in the U.S.

The RNAS report will be available on the department’s website later today at www.nij.gov.

The RNAS will be subject to a 45-day study period beginning with the publication of the System. Starting Monday, July 22, the public may send comments to FirstStepAct@ojp.usdoj.gov. This study period allows stakeholders to review and analyze the System. After the study period, NIJ will hold a special listening session on the RNAS in early September.

In addition DOJ has released this First Step Act Implementation Fact Sheet, and here is one highlight therefrom:

I. Retroactive Application of Fair Sentencing Act (Crack: Powder)

The Act’s retroactive application of the Fair Sentencing Act of 2010 (reducing the disparity between crack cocaine and powder cocaine threshold amounts triggering mandatory minimum sentences) has resulted in 1,691 sentence reductions

July 19, 2019 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (5)

Big day for the next stage of FIRST STEP Act implementation

July 19, 2019, is a big day in the implementation of the FIRST STEP Act because today marks 210 days since the law was officially enacted. And the Act states "Not later than 210 days after the date of enactment of this subchapter, the Attorney General, in consultation with the Independent Review Committee authorized by the First Step Act of 2018, shall develop and release publicly on the Department of Justice website a risk and needs assessment system...."

This "risk and needs assessment system" will serve as the backbone for the rehabilitative programming and earned time credits that can impact the experiences of every single current and future federal prisoner. In addition, DOJ's release of the risk and needs assessment system (which is widely expected to be today) will mark the time when revised good time credit calculations should become effective and lead to the swifter release from federal prison a few thousand persons.

I will be off line much of today, but I hope tonight I will be able to effectively cover whatever we hear from DOJ and others today. In the meantime, here are a review of just some of my prior posts on FIRST STEP Act implementation from the last 210 days:

On the FIRST STEP Act's good-time fix and DOJ's work:

On the FIRST STEP Act's crack retroactivity provision:

On the FIRST STEP Act's important change to "compassionate release":

UPDATE:  This DOJ press release reports on the latest FIRST STEP news.

July 19, 2019 in FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (0)

July 18, 2019

"Measuring Algorithmic Fairness"

The title of this post is the title of this new paper now available via SSRN authored by Deborah Hellman.  With all the use of risk assessment tools throughout the criminal justice system, as with the risk-and-needs tool required by the FIRST STEP Act due out very soon, this discussion of "algorithmic fairness" cause my eye. Here is its abstract:

Algorithmic decision making is both increasingly common and increasingly controversial.  Critics worry that algorithmic tools are not transparent, accountable or fair.  Assessing the fairness of these tools has been especially fraught as it requires that we agree about what fairness is and what it entails. Unfortunately, we do not.  The technological literature is now littered with a multitude of measures, each purporting to assess fairness along some dimension.  Two types of measures stand out.  According to one, algorithmic fairness requires that the score an algorithm produces should be equally accurate for members of legally protected groups, blacks and whites for example.  According to the other, algorithmic fairness requires that the algorithm produces the same percentage of false positives or false negatives for each of the groups at issue.  Unfortunately, there is often no way to achieve parity in both these dimensions.  This fact has led to a pressing question.  Which type of measure should we prioritize and why?

This Article makes three contributions to the debate about how best to measure algorithmic fairness: one conceptual, one normative, and one legal.  Equal predictive accuracy ensures that a score means the same thing for each group at issue.  As such, it relates to what one ought to believe about a scored individual.  Because questions of fairness usually relate to action not belief, this measure is ill-suited as a measure of fairness.  This is the Article’s conceptual contribution.  Second, this Article argues that parity in the ratio of false positives to false negatives is a normatively significant measure.  While a lack of parity in this dimension is not constitutive of unfairness, this measure provides important reasons to suspect that unfairness exists.  This is the Article’s normative contribution.  Interestingly, improving the accuracy of algorithms overall will lessen this unfairness. Unfortunately, a common assumption that antidiscrimination law prohibits the use of racial and other protected classifications in all contexts is inhibiting those who design algorithms from making them as fair and accurate as possible. This Article’s third contribution is to show that the law poses less of a barrier than many assume. 

July 18, 2019 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (0)

Federal judge gives first-person account of FIRST STEP Act's impact through retroactive crack provision

The New York Times has this notable new first-person account of the FIRST STEP Act coming from a judge who was able to reduce a life sentence thanks to the Act's crack retroctivity provisions.  The piece is authored by Robin Rosenberg, and carries the headline "In ’99 He Was Sentenced to Life. Twenty Years Later, I Set Him Free." Here are excerpts:

In January 1999, Robert Clarence Potts III was sentenced to life in prison. He was 28, and had been convicted of drug and weapons charges. The federal judge sentencing him seemed to express some regret at the gravity of the penalty. But under the law at the time, Mr. Potts faced a mandatory sentence of life imprisonment without release because of the type of offenses and his two previous convictions for drug and other offenses.

“You are facing a very tough sentence here, and it is very regrettable that you are,” the judge, James C. Paine of the United States District Court of the Southern District of Florida, told him. The judge added that “we are governed by the law and the guidelines and we are going to have to go by those.” And the law and sentencing guidelines meant “a term of life imprisonment,” he explained.

To that, Mr. Potts responded, “Sir, there is not much I can say.”  But it was what he did afterward that ultimately made the difference.

On Friday, Mr. Potts, now 49, is scheduled to be released from prison after more than 20 years — a turn of events made possible by the First Step Act, passed by Congress and signed by President Trump last year.  Among other things, the law expanded early-release programs, modified sentencing laws and allowed defendants like Mr. Potts to seek a reduction in their sentence, a step toward correcting the country’s history of disproportionate sentences.

The decision whether to reduce his sentence fell to me when I was randomly assigned his case.  The twist was that I had been Judge Paine’s law clerk in 1989, 10 years before Mr. Potts was sent away.  Now I was a federal judge in the same courthouse where Judge Paine had served and where he had sentenced Mr. Potts two decades before....

Mr. Potts had served over 20 years in a high-security federal penitentiary when the First Step Act became law last December.  The First Step Act made the Fair Sentencing Act — signed by President Barack Obama in 2010 to reduce the disparity in sentencing for powder cocaine and crack cocaine offenses — applicable to past cases.  The First Step Act also allowed a defendant like Mr. Potts to seek a sentence reduction even when the original sentence was for life.  The law provides wide discretion to the court to determine whether to reduce a sentence and by how much.

At his sentence reduction hearing, Mr. Potts had much more to say than he did back in 1999.  Before me, he was remorseful, dignified and hopeful.  He was proud of all that he had accomplished in over two decades in prison — proud of the courses he took in personal growth, responsible thinking, legal research and software, proud of his participation in nearly every health, nutrition and fitness class available.  Perhaps he derived his greatest pride from conquering a debilitating addiction and maintaining his sobriety.  As his lawyer explained to me, sobriety is not a foregone conclusion in prison, where drugs are widely available....

The true marker of a person’s character is what he does when he thinks no one is watching.  Because Mr. Potts was sentenced to life, no one had really been looking at what he had been doing.  But his unwavering dedication to improve himself over the last two decades, despite his circumstances, convinced me that his hope in his own future isn’t misplaced.

After a long hearing, I concluded that 20 years was more than sufficient as punishment for his past — and serious — crimes, and ordered his release. To help his transition, he will spend six months in a residential re-entry center.  I believe Mr. Potts’s story is one of redemption through self-improvement.  His case speaks to the importance of criminal justice reforms such as the First Step and Fair Sentencing Acts. His story illuminates the human impact of such reforms and a person’s capacity for hope and redemption.

July 18, 2019 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

US Sentencing Commission begins new "Research Notes" publication

At a time of great interest and great change in the federal sentencing system, the US Sentencing Commission for many years now has lacked a full complement of Commissioners.  And throughout 2019, because there are only two Commissioners in place, the USSC lacks a quorum needed to do any "official" work involving changes to the federal sentencing guidelines.  But the USSC staff clearly remains hard at work with the regular production of research reports.  And, as detailed on this webpage, the USSC is now producing a new set of research documents:

RESEARCH NOTES

Research Notes give background information on the technical details of the Commission’s data collection and analysis process. They are designed to help researchers use the Commission’s datafiles by providing answers to common data analysis questions.

Research Notes

  • Issue 1: Collection of Individual Offender Data This first edition of Research Notes explains how the Commission collects and analyzes sentencing information, and describes the Commission’s many datafiles. (Published July 17, 2019)

July 18, 2019 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

July 17, 2019

Fascinating Fourth Circuit en banc debate over constitutional challenges to Virginia's "habitual drunkard" law

A helpful colleague made sure I saw the Fourth Circuit's split en banc ruling yesterday in Manning v. Caldwell,  No. 17-1320 (4th Cir. July 16, 2019) (available here), concerning a lawsuit challenging a peculiar Virginia law.  This AP article summarizes the ruling and provides helpful context:

A lawsuit challenging an unusual Virginia law that allows police to arrest and jail people designated as “habitual drunkards” was reinstated Tuesday by a deeply divided federal appeals court. The 4th U.S. Circuit Court of Appeals ruled that the challenge to Virginia’s so-called interdiction law can move forward.

The court voted 8-7 to allow the lawsuit to proceed, finding that Virginia’s law is unconstitutionally vague. The ruling from the full court reverses earlier rulings from a judge and a three-judge panel dismissing the lawsuit.

The Legal Aid Justice Center argues that the law targets homeless alcoholics and violates the 8th Amendment prohibition against cruel and unusual punishment. The Virginia attorney general’s office, in defending the law, argues that the state has a legitimate interest in discouraging alcohol and drug abuse.

The law allows prosecutors to ask a civil judge to declare someone a “habitual drunkard.”  Police can then arrest that person for being publicly intoxicated, possessing alcohol or even smelling of alcohol.  Violators face up to a year in jail.

In its written opinion, the court found that the law does not give homeless people who struggle with alcohol fair notice under the law.  “While necessary changes in the law may not alter the choices that they make or enhance the quality of their life, at least the government will not be compounding their problems by subjecting them to incarceration based on the arbitrary enforcement of ambiguous laws or, at best, the targeted criminalization of their illnesses,” Judges Diana Gribbon Motz and Barbara Milano Keenan wrote for the majority.

During arguments before the 4th Circuit in January, an attorney representing people designated as “habitual drunkards” argued that the law criminalizes addiction by targeting people who are compelled to drink because they are alcoholics and are forced to drink in public because they are homeless.  People without the habitual-drunkard designation can also be arrested for public intoxication, but they don’t face any jail time.

In a strongly worded dissenting opinion, Judge J. Harvie Wilkinson III chastised the majority for asking the court to find “that addiction gives rise to an Eighth Amendment right to abuse dangerous substances without the imposition of any criminal sanctions.”

“As my colleagues apparently see it, consuming alcohol, even by those with a documented history of alcohol abuse, is just not the sort of conduct that warrants criminal sanctions. Given the comprehensive body of research pointing to the harms of alcohol abuse, I cannot agree,” Wilkinson wrote....

Virginia and Utah are the only two states with interdiction laws that make it a crime for people designated as habitual drunkards to possess, consume or purchase alcohol, or even attempt to do so, according to a survey of state laws done by the legal aid center.

The full opinion runs 83 pages, so I will need some time to assess whether it is as consequential a ruling as the dissent seemingly fears. But folks who follow the intersection of criminal justice and public health will surely want to check this one out.

July 17, 2019 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Following his conviction on all counts, Joaquín "El Chapo" Guzmán receives an LWOP (plus 30 years!) federal sentence

As reported in this USA Today piece, "drug lord Joaquín 'El Chapo' Guzmán Loera was formally sentenced Wednesday to life in prison plus 30 years on drug trafficking and weapons charges." Here is more:

Guzmán, 62, a leader of Mexico's Sinaloa narcotics cartel, briefly spoke at the hearing, claiming his trial was "stained" by juror misconduct.

U.S. District Court Judge Brian Cogan imposed the sentence amid bomb-sniffing dogs, automatic rifle-toting agents and other extra security measures at the Brooklyn federal courthouse. Guzman, who wore a gray suit to the proceedings, has a history of complex and spectacular escapes from Mexican jails.

Guzman was also ordered to forfeit $12,666,191,704 based on the quantity and the value of the drugs in his crimes. There were no details available on how much, if any, money is actually available.

Guzmán, who did not testify in his own defense during the trial, complained to the judge Wednesday about conditions in jail, saying the water was unsanitary and that he was denied sufficient access to his wife and young daughters.

Defense lawyers have signaled that they plan to appeal the conviction, as well as Cogan's recent denial of a motion for an evidentiary hearing and new trial based on what they viewed as potential evidence of misconduct.

“My case was stained and you denied me a fair trial when the whole world was watching,” Guzman said in court through an interpreter. “When I was extradited to the United States, I expected to have a fair trial, but what happened was exactly the opposite.”

In a sentencing letter filed last week, prosecutors reiterated that life behind bars is the mandatory punishment for one of the crimes on which a federal jury found Guzmán guilty five months ago. The case has drawn international attention, and the line to get into the proceeding started forming Tuesday. By dawn on Wednesday, more than 50 media representatives and spectators lined the sidewalk outside the courthouse.

Guzmán is best known as a former leader of Mexico's Sinaloa drug cartel who gained fame by twice breaking out of high-security prisons in his native country – a feat he has thus far been unable to replicate in the U.S. Depending on U.S. Bureau of Prisons decisions, he could be sent to the so-called Alcatraz of the Rockies, the "administrative maximum" prison in Florence, Colorado. There he would join, but likely never meet, fellow inmates such as Unabomber Ted Kaczynski, Boston Marathon bomber Dzhokhar Tsarnaev, Sept. 11 conspirator Zacarias Moussaoui and Oklahoma City bombing accomplice Terry Nichols.

Guzmán's nearly 12-week trial ended in February with a jury of eight women and four men finding the defendant guilty on all counts during the sixth day of deliberations. The charges against Guzmán included drug trafficking and weapons counts stemming from his leadership role in the cartel's smuggling tons of cocaine and other drugs into major U.S. cities during a criminal career that stretched for decades....

The guilty verdict on the charge he engaged in a continuing criminal enterprise mandated a life prison term because of the jury's separate guilty votes on three sentencing enhancements. In a legal quirk, Guzmán's conviction for unlawful use of a machine gun in tandem with the drug crimes means he also faces the mandatory but likely unnecessary 30-year sentence that must run consecutively with the life term.

The sentencing seemingly marks an official end of Guzmán's reign as one of the world's most notorious drug lords, though his more than two years in solitary confinement in U.S. jails before the conviction had already removed him from the narcotics trafficking fray.

By many accounts, however, the Sinaloa cartel continues to thrive as it competes with other international drug trafficking organizations and diversifies into other businesses.

July 17, 2019 in Celebrity sentencings, Drug Offense Sentencing, Gun policy and sentencing | Permalink | Comments (0)

July 16, 2019

Recalling some big sentencing opinions of the late great Justice John Paul Stevens

John Paul Stevens, as reported here, passed away at age 99 today. Justice Stevens was appointed in 1975 by President Gerald Ford and was the third-longest-serving Justice in US history. His lengthy tenure and jurispridence cannot be easily summarized, but his extraordinarily consequential sentencing work, particularly in the Apprendi and Booker lines of cases, are defining elements of the modern history of sentencing jurisprudence. And in this post, I am eager to take a few moments to note and link a few highlights in the corpus of significant sentencing opinions authored by Justice Stevens during his 35 years on the high court:

Gregg v. Georgia, 428 U.S. 153 (1976),

Thompson v. Oklahoma, 487 U.S. 815 (1988)

United States v. Watts, 519 U.S. 148 (1997)

Apprendi v. New Jersey, 530 U.S. 466 (2000)

Atkins v. Virginia, 536 U.S. 304 (2002)

United States v. Booker, 543 U.S. 220 (2005)

Gall v. United States, 552 U.S. 38 (2007)

July 16, 2019 in Who Sentences | Permalink | Comments (3)

US House Subcommittee hearing spotlights "Women and Girls in the Criminal Justice System"

Last week, as noted over at my marijuana blog, the Crime, Terrorism and Homeland Security Subcommittee of the Committee of the Judiciary of the US House of Representatives conducted a notable hearing titled "Marijuana Laws in America: Racial Justice and the Need for Reform."   This week, that subcommittee continue to spotlight the need for criminal justice reform through a hearing this morning titled "Women and Girls in the Criminal Justice System."  This ABC News piece, headlined "House Judiciary subcommittee meets on growing population of women behind bars," provides a an effective summary of parts of the hearing, and here are excerpts:

Like 80% of women incarcerated in the U.S., Cynthia Shank was a mother when she went to prison.  Shank was pregnant when she was indicted and like many incarcerated women, she served time for nonviolent offenses -- in her case, she was sentenced to 15-years for federal conspiracy charges related to crimes committed by her deceased ex-boyfriend.  Nearly 150,000 women are pregnant when they are admitted into prison.

Shank, along with other prison reform advocates, appeared in front of the House Judiciary subcommittee for a hearing on women in the criminal justice system to discuss ways to make sure women are not overlooked in the conversation on criminal justice reform.  "Prison destroyed my small young family," Shank said.  "Prison is set up to separate and destroy bonds."...

Piper Kerman, author of the novel turned Netflix series "Orange is the New Black," also shared what her experience was like while imprisoned and why there needs to be a shift in policy to directly impact the growing number of women in prison.  "Policies, not crime, drive incarceration," Kerman said.

Women are now the fastest growing segment of the incarcerated population and initiatives to slow and even reverse the growth of the prison population have had disproportionately less effect on women, according to the Prison Policy Initiative.  The total number of men incarcerated in state prisons fell more than 5% between 2009 and 2015, while the number of women in state prisons fell only a fraction of a percent, 0.29% "In a number of states, women's prison populations are growing faster than men's, and in others, they are going up while men's are actually declining," said Aleks Kajstura, legal director of the Prison Policy Initiative.

The war on drugs is what many of the panelists and lawmakers pointed to as part of the reason there are such high rates of women incarcerated.  "Much of the growth of women in prisons can be attributed to the war on drugs," said Jesselyn McCurdy, deputy director of the Washington legislative office for the American Civil Liberties Union.

"Addressing this unfair issue is important because the war on drugs appears to be a large driver of the incarceration rates of women, as illustrated by the fact that the proportion of women in prison for a drug offense has increased from 12% in 1986 to 25% in more recent years." Rep. Jerry Nadler, D-N.Y., said.

An estimated 61% of women are incarcerated for nonviolent crimes, according to The Sentencing Project.  McCurdy touched on what many women, including Shank, fall victim to in the criminal justice system -- conspiracy charges as they relate to a significant other, also known as the "Girlfriend problem."

"You don't have to necessarily have dealt drugs, you have to have some role in a conspiracy and that role is very little," McCurdy said. "You can pick up the phone in your house that you live in with your partner and that's enough to implicate you in a conspiracy."

Family trauma was also a major focal point of the hearing, as lawmakers turned to the panel to seek their insight on the best ways to address the trauma of family separation. Shank told the subcommittee members that while she was incarcerated in a federal prison in Florida, she was only able to see her children once a year and that her children would beg her not to hang up the phone when they spoke.  "I'm an adult, I accepted the consequences of my sentencing, but my children were the innocent victims of this," Shank said.

The committee also spent time discussing the relationship between male prison guards and female inmates, with both Shank and Kerman saying that there needs to be more attention on the safety of women who are behind bars with male guards. "I never felt safe changing," Shank said.  "Guards know your schedule, and if they want to single you out they will."

Panelists were also asked to speak on the need of bail reform for women behind bars, as 1 in 4 women who are incarcerated have not been convicted and over 60% of women who could not make bail are parents of minor children, according to the Prison Policy Initiative.  Kerman said that there needs to be primary care consideration in the courts that require judges to consider the impact on families in both pre-trial hearings and sentencing.

"Women will no longer be overlooked in the criminal justice conversation," Rep. Karen Bass, D-Calif., said. "We must have an overall approach to criminal justice reform that specifically considers women.

The full two-hour+ hearing, along with the written testimony submitted by the official witnesses, can all be found at this official webpage.  And Piper Kerman's written testimony has a first footnote that provides this statistical basis for heightened concerns about the modern treatment of women and girls in the criminal justice system: "Since 1978, women’s state prison populations have grown 834%, while men’s state prison populations have grown 367%."

July 16, 2019 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1)

New Pew report spotlights state changes in community supervision and revocations

The folks from Pew have this notable new report fully titled "To Safely Cut Incarceration, States Rethink Responses to Supervision Violations: Evidence-based policies lead to higher rates of parole and probation success." Here is the document's "Overview":

Recent research from The Pew Charitable Trusts found that about 4.5 million people in the United States are on community supervision as of 2016.  Probation and parole provide a measure of accountability while allowing those who would otherwise have been incarcerated or have already served a term behind bars to meet their obligations to their families, communities, and victims.

People under supervision are expected to follow a set of rules, such as keeping appointments with probation or parole officers, maintaining employment, not using alcohol or other drugs, and paying required fees. Failure to follow the rules — referred to as technical violations—may result in revocation of the supervision and in some cases a term of incarceration.  A 2019 report by the Council of State Governments showed that technical violations account for almost 1 in 4 admissions to state prison and $2.8 billion in annual incarceration costs.

Such technical revocations are costly, and failure to comply with supervision conditions does not necessarily indicate that a person presents a public safety threat or will engage in new criminal activity.  Further, although studies have not demonstrated that incarcerating people for breaking the rules of supervision reduces recidivism, they have found that long periods of incarceration can make re-entry more difficult, causing people to lose their jobs, homes, and even custody of their children.

This brief examines policies that states implemented through the Justice Reinvestment Initiative (JRI) that have reduced technical revocations, highlights some of the results of those changes, and provides sample legislation for each policy.  JRI is a public-private partnership among Pew, the U.S. Department of Justice’s Bureau of Justice Assistance, state governments, and technical assistance providers; it seeks to improve public safety and control costs by prioritizing prison space for people sentenced for the most serious offenses and investing in evidence-based alternatives to incarceration and other programs shown to reduce recidivism.  These state efforts have not been without challenges, and more can be done to improve supervision outcomes.  Nevertheless, the examples provided show that states can take meaningful steps to reduce prison populations and protect public safety while strengthening systems of supervision and services in the community.

July 16, 2019 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

FAMM releases materials in support of new "Second Look Act" proposed by Senator Cory Booker

As noted in this post, Senator Cory Booker is now promoting a notable new second look provision to be added to federal sentencing laws.  The group FAMM has marked this development with this press release that includes notable new materials helping to make the case for a second look provision in federal law.  Here is part of the press release and its linked materials:

This week Sen. Cory Booker (D-New Jersey) and Rep. Karen Bass (D-Calif.) will be introducing the Matthew Charles and William Underwood Act. The bill would create a second look sentencing provision to allow judges to reduce lengthy sentences if a person has served more than 10 years, has made significant strides toward rehabilitation, and is no longer a risk to public safety.

“We have to stop throwing so many people away. People can change, and our sentencing laws ought to reflect that,” said FAMM President Kevin Ring. “Lengthy prison sentences are not always the right answer, especially when someone has proven their commitment to rehabilitation. Public safety can be improved by taking a second look at those lengthy sentences, reducing them when warranted, and redirecting anti-crime resources where they might actually do some good.”...

The bill is named in honor of Matthew Charles, a FAMM Justice Fellow and the first beneficiary of the First Step Act’s retroactive sentencing reform, and William Underwood, who is currently serving a life without parole sentence for a federal drug conviction....

In support of the new legislation, FAMM is releasing the following:

FAMM has been a longtime supporter of expanding ways to revisit harsh sentences, including executive clemency, compassionate release, and second look. Last month, USA Today published an op-ed co-authored by Ring and former federal judge Kevin Sharp on the need for second look sentencing laws.

July 16, 2019 in Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Reminders of two recent paper calls on SCOTUS and on the CSA

For the next few weeks, I am not going to be able to resist reminding everyone of these two timely call for papers on subjects and projects in my world:

Call for Papers: "The Controlled Substances Act at 50 Years"

Although the federal drug war has been controversial since its inception, the CSA’s statutory framework defining how the federal government regulates the production, possession, and distribution of controlled substances has endured.  As we mark a half-century of drug policy under the CSA, the Academy for Justice at the Arizona State University Sandra Day O'Connor College of Law and the Drug Enforcement & Policy Center at The Ohio State University Moritz College of Law are together sponsoring a conference to look back on how the CSA has helped shape modern American drug laws and policies and to look forward toward the direction these laws could and should take in the next 50 years.

The conference, "The Controlled Substances Act at 50 Years," will take place on February 20-22, 2020, at Arizona State University Sandra Day O'Connor College of Law in Phoenix, Arizona.  As part of this conference we are soliciting papers for the February 22 scholarship workshop. Junior scholars are encouraged to submit, and will be paired with a senior scholar to review and discuss the paper.

Each paper should reflect on the past, present or future of the Controlled Substances Act and drug policy in the United States.  Participants should have a draft to discuss and circulate by February 10.  The papers will be gathered and published in a symposium edition of the Ohio State Journal of Criminal Law, a peer-reviewed publication.  Participants should have a completed version to begin the publication process by March 15.  Final papers may range in length from 5,000 words to 20,000 words.  Deadline: Please submit a title and an abstract of no more than 300 words, to Suzanne.Stewart.1 @ asu.edu by August 15, 2019.  Accepted scholars will be notified by September 15, 2019.

 

Seeking Commentaries for Federal Sentencing Reporter Issue on “The October 2018 SCOTUS Term and the Criminal Justice Work of its Members”

FSR is open and interested in publishing pieces addressing an array of topics relating to the current Supreme Court's work on the criminal side of its docket.  Commentaries can focus on a single case (or even a single opinion in a single case) or they can address a series of cases or a developing jurisprudence.  Contributors are also welcome to discuss the voting patterns and rulings of a particular Justice or of the Court as a whole.  How the Court selects criminal cases for review or what topics should garner the Justices' attention in the years ahead are also fitting topics.  In short, any engaging discussion of the work of the current Court on criminal justice matters will fit the bill.

FSR pieces are shorter and more lightly footnoted than traditional law review pieces; ideally, drafts are between 2000 and 5000 words with less than 50 footnotes.  Drafts need to be received on or before August 1 to ensure a timely publication, and should be sent to co-managing editors Douglas Berman (berman.43 @ osu.edu) and Steven Chanenson (chanenson @ law.villanova.edu) for consideration.

July 16, 2019 in Recommended reading | Permalink | Comments (0)

Philly DA argues, based on study of local capital cases, that "death penalty, as it has been applied, violates the Pennsylvania Constitution"

As reported in this local article, headlined "DA Krasner wants Pa. Supreme Court to strike down state’s death penalty and declare it unconstitutional," a notable local prosecutor has filed a notable state court brief that surely could have national consequences.  Here are the basics:

In a response to a death penalty case that could have far-reaching ramifications, the Philadelphia District Attorney’s Office is asking the Pennsylvania Supreme Court to strike down the state’s death penalty and declare it unconstitutional.  “Because of the arbitrary manner in which it has been applied, the death penalty violates our state Constitution’s prohibition against cruel punishments,” District Attorney Larry Krasner’s office wrote in a motion filed with the court Monday night....

The DA’s Office was responding to a petition filed by federal public defenders representing Philadelphia death-row inmate Jermont Cox, convicted of three separate drug-related murders in 1992 and ordered to die for one of them.  The defense attorneys, who also represent a Northumberland County inmate, Kevin Marinelli, sentenced to death for a 1994 killing, have asked the high court to end capital punishment, arguing that the death penalty violates the state Constitution’s ban on cruel punishment.

Krasner’s office agrees with that assessment.  The office’s position does not come as a surprise — Krasner had campaigned against the death penalty while running for district attorney in 2017, saying he would “never seek the death penalty” — but Monday night’s motion in the Cox case is the first time Krasner has articulated it to the state’s highest court....

The justices’ eventual decision on Cox and Marinelli could affect not just future death-penalty cases, but also the approximately 130 other inmates awaiting execution, potentially forcing the courts to resentence them.  After a June 2018 bipartisan legislative Joint State Government Commission report found troubling deficiencies in the state’s death-penalty system, Philadelphia-based federal defenders in August filed separate petitions for Cox and Marinelli, asking the state high court to find the death penalty unconstitutional.

The defense attorneys asked the high court to invoke its King’s Bench authority, which gives the court the power to consider any case without waiting for lower courts’ rulings when it sees the need to address an issue of immediate public importance.  The court consolidated the two cases in December.  In its February joint petition for Cox and Marinelli, the federal defenders asked the high court to “strike down the Commonwealth’s capital punishment system as a prohibited cruel punishment” and heavily relied on the joint commission’s report in finding problems with the death penalty....

The DA’s Office response to the defense petition was initially expected in March.  City prosecutors three times requested a deadline extension.  The high court then set a July 15 deadline. The court has set a Sept. 11 hearing date for oral arguments on the petition from Cox and Marinelli....  

Pennsylvania’s death penalty has been used three times since it was reinstated by the state in 1978.  The last person executed was Gary Heidnik of Philadelphia in 1999.

The full brief from DA Larry Krasner's office is available at this link, and it is a must-read in part because it makes much of the office's own study of Philadelphia capital cases. Here are a few paragraphs from the the brief's introduction:

To assess whether Pennsylvania’s capital sentencing regime ensures the heightened reliability in capital cases required by our Constitution, there is no better place to start than Philadelphia — the jurisdiction that has sought and secured more death sentences than any other county in the state.  In order to formulate its position in this case, the Philadelphia District Attorney’s Office (DAO) studied the 155 cases where a Philadelphia defendant received a death sentence between 1978 and December 31, 2017.

As will be detailed below, the DAO study revealed troubling information regarding the validity of the trials and the quality of representation received by capitally charged Philadelphia defendants — particularly those indigent defendants who were represented by under-compensated, inadequately-supported court-appointed trial counsel (as distinguished from attorneys with the Defender Association of Philadelphia).  Our study also revealed equally troubling data regarding the race of the Philadelphia defendants currently on death row; nearly all of them are black.  Most of these individuals were also represented by court-appointed counsel, often by one of the very attorneys whom a reviewing court has deemed ineffective in at least one other capital case....

Where nearly three out of every four death sentences have been overturned— after years of litigation at significant taxpayer expense—there can be no confidence that capital punishment has been carefully reserved for the most culpable defendants, as our Constitution requires. Where a majority of death sentenced defendants have been represented by poorly compensated, poorly supported court-appointed attorneys, there is a significant likelihood that capital punishment has not been reserved for the “worst of the worst.” Rather, what our study shows is that, as applied, Pennsylvania’s capital punishment regime may very well reserve death sentences for those who receive the “worst” (i.e., the most poorly funded and inadequately supported) representation....

As this Court observed in Zettlemoyer, our 1978 statute attempted to establish a reliable, non-arbitrary system of capital punishment. Decades of data from Philadelphia demonstrates that, in its application, the system has operated in such a way that it cannot survive our Constitution’s ban on cruel punishment. Accordingly, the DAO respectfully requests this Court to exercise its King’s Bench or extraordinary jurisdiction and hold that the death penalty, as it has been applied, violates the Pennsylvania Constitution.

Some additional good discussion of this brief and its context can be found in discussions at The Appeal and Reason.

July 16, 2019 in Data on sentencing, Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

July 15, 2019

Senator Cory Booker proposes bold "second look" resentencing law

Continuing his pattern of putting forth bold criminal justice reform proposals, Senator Cory Booker is now promoting a notable new second look sentencing law.  This new NBC News article, headlined "Cory Booker aims to give aging prisoners 'a second look': The Democratic presidential candidate is unveiling new legislation to take prison reform another step forward," provides some of the details.  Here are excerpts:

New Jersey Senator Cory Booker is unveiling new legislation that would give more federal prisoners the chance at early release, building on perviously passed criminal justice reform that some supporters say didn't go far enough.

The First Step Act, passed in 2018, was a rare bipartisan feat in Congress, bringing some of the most liberal and conservative lawmakers together with President Donald Trump to enact the biggest reforms to the criminal justice system since the tough-on-crime laws of the 1980s and 1990s.  While the new law led to the release of thousands of federal inmates, thousands more were ineligible.

William Underwood, 65 years years old, is one inmate who wasn't eligible for release under the First Step Act.  He has been in federal prison for 30 years, convicted of conspiracy, racketeering and non-violent drug-related crimes.  Although it was his first felony conviction, he was sentenced to life in prison without parole under mandatory sentencing guidelines.

Booker, who first met Underwood in 2016, says he's a prime example of the kind prisoner who should be eligible for release.  He points to Underwood's age, the time he's already served and his record of good behavior as as reasons why more reforms are needed, noting that even the prison guards have said Underwood doesn’t belong there.

Booker’s legislation would address people like Underwood.  The Matthew Charles and William Underwood Second Look Act, named after Underwood and Charles, the first person released because of the First Step Act, would give those serving long sentences a second chance.

The bill would also give people who have served more than ten years an opportunity to petition the court for release. And for prisoners over the age of 50, they would be offered the presumption of release, which means the the judge would have to show that the inmate should remain behind bars because they are a threat to society.

The measure likely faces an uphill battle in part because it would shift the burden onto the judicial system to make the case that a prisoner should remain locked up. Another component that is expected to be controversial is that there is no exclusions for certain crimes.  (The type of crimes included in the First Step Act encompassed low-level, non-violent crimes.)  Booker’s office argues that it would be much tougher for someone convicted of a violent crime to be released because a court must find that the inmate is not a risk and the inmate must show readiness to re-enter society....

“I hope that this creates a much bigger pathway for people to be released, to save taxpayer dollars, to reunite families,” Booker said.  “This system of mass incarceration that now has more African Americans under criminal supervision than all the slaves in 1850 is an unjust system, and I intend to do everything I can to tear down the system of mass incarceration."

Booker was instrumental in the passage of the First Step Act, which had the support of President Donald Trump under the direction of his son-in-law Jared Kushner, and Kim Kardashian.  As a presidential candidate he’s running against a number of candidates introducing plans revolving around criminal justice and his bill is a direct response to frontrunner, former Vice President Joe Biden, who was critical to the passage of the tough-on-crime bills of the 80s and 90s.  Biden is expected to unveil a criminal justice reform plan in the coming weeks, which is expected to include a prohibition on mandatory minimum sentences.

Prior recent related post:

UPDATE: Over at Crime & Consequences, Kent Scheidegger has this extended post looking into the backstory of William Underwood under the title "A Poster Boy for the Long-Sentenced, Non-Violent Drug Offender?".  Here is a snippet from Kent's review of his underlying conviction:

[Here is part of the] Second Circuit's decision on the original appeal, which is published. See United States v. Underwood, 932 F.2d 1049 (2d Cir. 1991), cert denied 502 U.S. 942 (1991):

"The government's evidence at trial showed that from the 1970's until his arrest in late 1988, Underwood supervised and controlled an extensive and extremely violent narcotics trafficking operation involving a number of murders and conspiracies to murder, a highly organized network for the street-level distribution of heroin and the importation of large quantities of heroin from Europe to the United States.  The government presented the testimony of more than 50 witnesses, including a number of former members of Underwood's street-level distribution organization, and introduced more than 250 exhibits."  Id. at 1051.

July 15, 2019 in Campaign 2020 and sentencing issues, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Another encouraging report on DOJ's commitment to FIRST STEP Act implementation

This new AP piece, headlined "Barr: Justice Dept. is ‘all in’ on criminal justice overhaul," provides another notable report on the work of Justice Department officials as the next stage of FIRST STEP Act implementation is set to get started.  Here are excerpts:

On a visit this past week to Edgefield — a facility with a medium-security prison and minimum-security camp — Attorney General William Barr took a firsthand look at some of the programs in place, from computer skills to cooking, auto mechanic training and factory work. He met with prison staff and a handful of inmates, including some who will be released early under the First Step Act.

Barr’s visit signaled a major policy shift since his first stint as attorney general in the early 1990s, when he exuded a tough-on-crime approach, advocating for more severe penalties, building more prisons and using laws to keep some criminals behind bars longer. Barr has said he will fully support and carry out the law....

During a tour that lasted nearly three hours, Barr also met with a prison psychologist, inmates who act as mentors in faith and drug-treatment programs, and with instructors who help prisoners create resumes and participate in job fairs. Passing through the narrow hallways, Barr peeked through the windows of some classrooms where inmates were completing computer skills and GED programs.  In one room, where older computers and typewriters lined the walls, Barr chatted about re-entry programs and heard from mentors who teach their fellow inmates how to prepare for the job interviews.

But some of the prison’s programs — like the culinary arts and auto repair programs — tend to be very popular among inmates and have wait lists.  As he walked through Edgefield, Barr told Hugh Hurwitz, the acting director of the Bureau of Prisons, they needed to make sure there were enough programs available to a wide swath of inmates.  “We’re focusing on building on the programs, the re-entry programs we need, and getting the funding to do it,” Barr said in an interview this past week with The Associated Press....

The Justice Department has been working to meet the deadlines set by Congress for the First Step Act and is expected to unveil a risk-assessment tool this week that will help to evaluate federal inmates and ultimately could speed up their release.  Barr said the Justice Department and the Bureau of Prisons are both “all in in terms of making it work.”

“I’m impressed with how it’s going,” Barr said of the First Step Act’s implementation. “While there are a few things I probably would have done a little bit different, I generally support the thrust of the First Step Act.”

A few of many prior related posts:

July 15, 2019 in FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (3)

July 14, 2019

"Torture and Respect"

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

There are two well-worn arguments against a severe punishment like long-term incarceration: it is disproportionate to the offender’s wrongdoing and an inefficient use of state resources.  This Article considers a third response, one which penal reformers and theorists have radically neglected, even though it is recognized in the law: the punishment is degrading.  In considering penal degradation, this Article examines what judges and scholars have deemed the exemplar of degrading treatment — torture.  What is torture, and why is it wrong to torture people?  If we can answer this question, this Article maintains, then we can understand when and why certain punishments — like perhaps long-term incarceration — are impermissibly degrading, regardless of their proportionality or social utility otherwise.

This Article develops an original theory of torture.  It argues that torture is the intentional infliction of a suffusive panic and that its central wrongness is the extreme disrespect it demonstrates toward a victim’s capacity to realize value. Humans realize value diachronically, stitching moments together through time to construct a good life as a whole. Torture takes such a being, one with a past and a future, and via the infliction of a make it stop right now panic, converts her into a “shrilly squealing piglet at slaughter,” in Jean Améry’s words, restricting her awareness to a maximally terrible present.

The Article then considers what this theory of torture means for our understanding of degradation more generally.  It argues that punishment is impermissibly degrading, regardless of our other penal considerations, when it rejects an offender’s status as a human.  Punishment reaches this threshold by demonstrating that the offender’s life-building capacity — the very basis of his humanity — is completely absent or fundamentally worthless.  To so thoroughly deny someone’s value, even someone who has committed a heinous crime, violates the liberal commitment to human inviolability.  The Article closes by suggesting that long-term incarceration rejects an offender’s status as a human, and is therefore on a par with penal torture, given that removing someone from free society for decades makes it exceedingly difficult for him to construct a good life as a whole.

July 14, 2019 in Prisons and prisoners, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Capital punishment news and notes from the new Death Penalty Information Center website

The extraordinarily valuable Death Penalty Information Center last month updated the look of its website, which seems worth mentioning because this announcement includes information about new materials and additions at the site:

The Death Penalty Information Center has modernized and expanded its award-winning website.  On June 14, 2019, DPIC launched its redesigned website, culminating a two-year project that involved the transfer and reorganization of information on the Center’s more than 7,000 webpages.  Among the most notable additions of the new website are 20 interactive Tableau graphics, including States With and Without the Death PenaltyPrisoners on Death Row, and a number of graphics on executions, exonerations, and grants of clemency.  The graphics will allow users to filter information in a variety of new ways, including narrowing by year or range of years, geography, race, sex, and, for some graphics, race of victim. 

Thankfully, the site still includes on his homepage its coverage of news, developments and resources, and here are links to a few recent items therefrom:

July 14, 2019 in Death Penalty Reforms | Permalink | Comments (1)

"Some Doubts About 'Democratizing' Criminal Justice"

The title of this post is the title of this new paper authored by John Rappaport and recently posted to SSRN. Here is its abstract:

The American criminal justice system’s ills are by now so familiar as scarcely to bear repeating: unprecedented levels of incarceration, doled out disproportionately across racial groups, and police that seem to antagonize and hurt the now-distrustful communities they are tasked to serve and protect.  Systemic social ailments like these seldom permit straightforward diagnoses, let alone simple cures.  In this case, however, a large, diverse, and influential group of experts — the legal academy’s “democratizers” — all identify the same disease: the retreat of local democratic control in favor of a bureaucratic “machinery” disconnected from public values and the people themselves.  Neighborhood juries, for example, internalize the costs of punishing their own; neighborhood police, “of” and answerable to the community, think twice before drawing their weapons or stopping a local boy on a hunch. The experts and detached professionals who populate our dominant bureaucratic institutions, in contrast, are motivated by different, less salubrious, incentives.  Across the gamut of criminal justice decisionmaking, the democratizers maintain, the influence of the local laity is a moderating, equalizing, and ultimately legitimating one.  A generous dose of participatory democracy won’t solve all our problems, but it’s our best shot to get the criminal justice system back on its feet.

This Article’s warning is plain: don’t take the medicine.  “Democracy” and “community” wield undeniable rhetorical appeal but will not really fix what ails us — and may just make it worse.  The democratization movement, the Article argues, rests on conceptually problematic and empirically dubious premises about the makeup, preferences, and independence of local “communities.”  It relies on the proudly counterintuitive claim that laypeople are largely lenient and egalitarian, contrary to a wealth of social scientific evidence.  And ultimately, democratization’s dual commitments are on a collision course.  The democratizers simultaneously devote themselves to particular ends — amelioration of the biased and outsized carceral state — and to a particular means — participatory democracy.  What happens if, as this Article predicts, the means do not produce the ends? Which commitment prevails?  Worse yet, venerating lay opinion distracts from alternative visions of “democratic” criminal justice that more credibly tackle the critical question of how best to blend public accountability with evidence and expertise.

July 14, 2019 in Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)