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August 31, 2019

Another indication from Oklahoma of how jurors are keeping the death penalty mostly dormant

With more than 100 executions in the modern capital era, Oklahoma used to be one of the most active death penalty states.  But this new local article, headlined "Jury deadlock latest example of death penalty's decline," highlights how the state has functionally (though not formally) turned away from capital punishments.  Here is an excerpt:

Deputy David Wade died in service to you," District Attorney Laura Austin Thomas told jurors Thursday in asking for the death penalty for his murderer, Nathan LeForce. "Let the punishment fit the crime."

The deputy had been making sure an evicted couple was moving out of a rural residence near Mulhall on April 18, 2017, when LeForce — who was visiting there — pulled out a gun from a piece of furniture and began firing.  The first shot hit the deputy in the vest, spinning him around and knocking him to the ground.  LeForce moved closer, shooting the deputy in the arm, armpit, back and, finally, the mouth, according to evidence presented at the trial.  LeForce fled in the deputy's patrol truck.

Calling the shooting cold-blooded, wicked and vile, the district attorney asked jurors if it did not merit the death penalty than what does. To choose another punishment, she said, would not honor or value the deputy's service.

Jurors, though, struggled with the decision.  After four hours, the foreman told District Judge Phillip Corley they were split 10-2. The judge instructed them to deliberate further.  He told jurors he would decide the sentence if they couldn't agree but explained his options could not include death. About 90 minutes later, jurors reported they were at an impasse, 11-1.  The judge thanked them and discharged them from duty.

The deadlock is the latest example of the death penalty's decline.  Death sentences have become increasingly rare in Oklahoma and nationwide as opposition to the punishment grows.  In May, New Hampshire became the 21st state to abolish the death penalty. Last week, the Ohio House speaker told reporters he's become "less and less supportive" of the death penalty....

Nationwide, a death sentence was imposed only 42 times last year, according to the Death Penalty Information Center.

In Oklahoma, only one death sentence was imposed last year and only one has been imposed so far this year. Executions remain on hold in the state while officials develop a protocol to use nitrogen gas.  The last lethal injection in Oklahoma murderer was on Jan. 15, 2015.

The deadlock Thursday night angered relatives of the victim and upset the sheriff and the almost two dozen deputies in the courtroom. It frustrated prosecutors, who believe the majority of jurors favored death.

August 31, 2019 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (5)

August 30, 2019

Federal district judge finds confinement condition Connecticut's former death row inmates to be unconstitutional

This local article, headlined "U.S. Judge rules former Connecticut death row inmate’s incarceration amounts to cruel and unusual punishment," reports on notable prison rulings handed down by a federal court earlier this week.  Here are the basics:

A federal judge has condemned high security prison conditions in Connecticut, ruling that a convicted cop killer who was confined for years on the state’s death row has been subjected to “cruel and unusual” punishment.

Ruling in one of at least a half dozen federal civil rights suits by former death row inmate Richard Reynolds, U.S. District Judge Stefan Underhill ordered the state to immediately relax the conditions under which he is confined and said he will consider imposing some sort of “damages” on the correction officers Reynolds names in his suit as defendants.

Underhill concludes in a set of decisions released Wednesday, one of them 57 pages long, that the conditions of confinement imposed by the state on former death row inmates — in particular the periods of time during which they are locked alone in their cells — amounts to a Constitutional violation.  “Reynolds committed a heinous crime ― he murdered a law enforcement officer,” Underhill wrote.  “Reynolds was sentenced to death and awaited execution for twenty-one years.  When the death penalty was abolished retroactively in Connecticut, Reynolds was resentenced to life without the possibility of release. The fact that people commit inhumane crimes does not give the state the right to treat them inhumanely. Solitary confinement is an extreme form of punishment with a long history in American penal systems.”

In a related ruling, Underhill gave the Department of Correction a list of instructions that would relax Reynolds’ confinement and he ordered the state to provide him with a progress report in 30 days.  Among other things, Underhill said Reynolds should be allowed to socialize with inmates who have a lower security classification and be allowed “contact” with visitors.  Underhill also said that a “hearing in damages will follow to determine the scope and amount of liability of” the 10 or so correction officers Reynolds named in his suit....

Reynolds was convicted of murder and sentenced to death in 1995 for killing Waterbury police officer Walter Williams three years earlier.  In 2017, he was resentenced to life in prison without the possibility of release after the state Supreme Court ruled the death penalty was unconstitutional.  Reynolds has been confined for 23 years at the Northern Correctional Institution in Somers, the state’s most secure maximum security prison.  He is classified for security purposes as a “special circumstances inmate” — the highest classification — and lives alone in a 12 foot by 7 foot cell.

At the center of Underhill’s ruling is the assertion that a variety of conditions imposed in prison on former death row inmates — extended periods locked alone in their cells, prohibition against mingling with lower security inmates and their inability to touch visitors amounts in Reynolds’ case to psychological torture and it could be damaging his mental health.

Underhill wrote that Reynolds is allowed out of his cell for two 15-minute periods to eat lunch and dinner.  He is allowed to take one 15-minute shower each day, two hours of recreation each day for six days a week and two hours of weekly indoor gym recreation. Reynolds may, upon request, receive visits from clergy, attorneys, or prison medical staff. “Other than those periods, Reynolds remains isolated with no contact with anyone but the six other inmates on special circumstances status,” Underhill wrote.  “Although he is allowed social visits with family members, no physical contact is permitted during those visits, which occur through Plexiglass.”

August 30, 2019 in Prisons and prisoners, Who Sentences | Permalink | Comments (0)

August 29, 2019

"The Gendered Burdens of Conviction and Collateral Consequences on Employment"

The title of this post is the title of this notable new paper recently posted to SSRN and authored by Joni Hersch and Erin Meyers.  Here is its abstract:

Ex-offenders are subject to a wide range of employment restrictions that limit the ability of individuals with a criminal background to earn a living.  This Article argues that women involved in the criminal justice system likely suffer a greater income-related burden from criminal conviction than do men.  This disproportionate burden arises in occupations that women typically pursue, both through formal pathways, such as restrictions on occupational licensing, and through informal pathways, such as employers’ unwillingness to hire those with a criminal record.  In addition, women have access to far fewer vocational programs while incarcerated.

Further exacerbating this burden is that women involved in the criminal justice system tend to be a more vulnerable population and are more likely to be responsible for children than their male counterparts, making legal restrictions on access to public assistance that would support employment more burdensome for women.  We propose programs and policies that may ameliorate these gendered income burdens of criminal conviction, including reforms to occupational licensing, improved access to public assistance, reforms to prison labor opportunities, improvements in labor market information sharing, and expanded employer liability protection.

August 29, 2019 in Collateral consequences, Race, Class, and Gender | Permalink | Comments (3)

"Higher Education Programs in Prison: What We Know Now and What We Should Focus on Going Forward"

The title of this post is the title of this notable new RAND publication authored by Lois Davis.  This webpage provides this overview of the 16-page document:

Each year, more than 700,000 incarcerated individuals leave federal and state prisons and return to local communities where they will have to compete with individuals in those communities for jobs.  In today's economy, having a college education is necessary to compete for many jobs, and the stakes for ex-offenders are higher than they are for others. There are different perspectives about whether postsecondary programs in prison should lead to academic degrees or industry-recognized credentials.  Drawing on past RAND research on correctional education and focusing on the Second Chance Pell Experimental Sites Initiative and the Pathways from Prison to Postsecondary Education initiative in North Carolina, this Perspective summarizes research on the effectiveness of educational programs in helping to reduce recidivism, key lessons learned in providing college programs to incarcerated adults, and remaining issues that need to be addressed, including how to ensure long-term funding of in-prison college programs and the need for an outcomes evaluation to learn from the Experimental Initiative.

Key Findings

Providing access to college education for incarcerated adults can help reduce the nation's substantial recidivism rates

  • For successful reentry, the educational and skills deficits of incarcerated individuals need to be addressed.
  • Correctional education and postsecondary programs are effective in reducing recidivism.
  • Correctional education is also cost-effective.
  • There are a number of challenges to implementing prison education programs.
  • Restoring access to Pell Grants will help address some, but not all, of the funding support needed for in-prison college programs.

Recommendations

  • Besides restoring Pell Grant eligibility, other options should be considered for ensuring long-term funding of in-prison college programs.
  • An outcomes evaluation of in-prison college programs and the Pell Experimental Initiative is needed to inform how best to provide these programs.

August 29, 2019 in Prisons and prisoners, Reentry and community supervision | Permalink | Comments (0)

August 28, 2019

Highlighting the need for community supervision to focus on rewarding success

Marc Levin has this new Hill commentary under the headline "Our justice system must reward success."  Here are excerpts:

Given that 4.5 million Americans are on community supervision, the question of how many of them no longer require government control has far-reaching implications, both from a government fiscal standpoint and societally.  Fortunately, policymakers are increasingly focused on creating standards for whether continued supervision is needed that focus not on the past, but on the future.  Since 2007, 18 states have implemented policies allowing individuals on probation to earn time for exemplary performance.

Robust earned time and early termination policies for community supervision have proven effective for both public safety and taxpayers who fund probation and parole agencies. In 2008, Arizona enacted a law giving people on probation 20 days credit for each month they make progress on their treatment plan and avoid new arrests.  In the subsequent two years, the number of people on probation convicted of new crimes substantially declined.

This is not surprising given that research reveals that most recidivism occurs during the initial part of the supervision period.  Multiple studies show that people are most likely to recidivate right after being released than at the end of their supervision.  Similarly, after New York City early terminated low-risk people on probation, they were less likely to be re-arrested for a new felony during their first year off supervision than similar individuals who had remained on supervision.

Moreover, removing people for whom monitoring isn’t likely to improve public safety from the supervision rolls frees up probation and parole officers to supervise those who are at greater risk of committing a new crime.  This means these officers can do more than shuffle the files of 100 people on their caseload and instead provide interventions such as motivational interviewing that addresses the attitudes and behaviors of those most at risk to recidivate.

Despite the progress some jurisdictions have made in providing incentives for success and focusing supervision on those who need it, many others do not allow earned time or early termination.  Additionally, excessive supervision periods remain, ranging from up to 40 years on probation for some in Minnesota to lifetime parole sentences in Nebraska.

When it comes to community supervision, we must focus on how well the system achieves rehabilitation, not on maximizing its duration.  Let’s reward success by allowing people to demonstrate they are not a threat and earn their way off supervision.  Intensive supervision has a place for those most at risk of going back to their old ways, but in many cases, government can accomplish more by doing less.

August 28, 2019 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (1)

"Translating Crimes"

The title of this post is the title of this notable new article now available on SSRN authored by Eric Fish.  Here is its abstract:

Criminal history is all-important in the criminal and immigration systems.  A person’s past convictions dictate whether they will face new criminal charges, make bond, suffer a lengthy sentence, be targeted for immigration enforcement, lose or keep their immigration status, and face or avoid deportation, among many other consequences.  Yet despite the vital role that criminal history plays, judges, prosecutors, and other government lawyers know surprisingly little about the past crimes of the people they process.  Factually rich accounts of a person’s prior convictions are rarely available, and the system instead relies on rap sheets that record minimal facts — the charge, the date of conviction, and the sentence imposed.

Because of this information scarcity, the criminal and immigration systems use criminal history heuristics when determining the consequences of prior convictions.  Such heuristics include the number of past convictions, the types of crime charged, and the sentences imposed.  These heuristics are inputted into mechanical formulas that translate them into often-severe consequences like deportations and mandatory minimum sentences.  This way of using criminal history creates a number of serious problems in our system.  It causes irrational and unjust results, renders the system arbitrary to the people being processed, exacerbates racial disparities, and makes access to a competent lawyer vital.  This Article diagnoses these problems and proposes a number of reforms, including ending the convention of “time served” sentencing and rewriting state criminal laws to limit their immigration consequences.

August 28, 2019 in Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0)

August 27, 2019

Making the case for exempting juvenile offenders from being subject to adult mandatory minimums

Nila Bala and James Dold have this new commentary at The Hill under the headline "Mandatory minimums harm children." Here are excerpts:

An estimated 76,000 children are tried as adults every year.  These children end up in a system that is poorly equipped to serve them.  Children are fundamentally different from adults, which is why we do not let children vote in elections, join the military, or buy cigarettes.  Young people often make bad decisions without pausing to think about the consequences. But because their brains are still developing, they also have an incredible capacity for change, and who they are when they are teenagers is certainly not who they will be for the rest of their lives.  This is why the Supreme Court, in a series of rulings, has struck down the use of the death penalty for those under 18 and declared life without parole an impermissible sentence for the vast majority of children.

Yet, many children still face incredibly long sentences that are harmful to them and provide no commensurate benefit to public safety.  A few decades ago, a group of academics propagated the false notion that some young people could not be rehabilitated because they were so evil and remorseless that they should be termed “superpredators.”  This idea has been completely debunked.  Unfortunately, the bad policies that allowed children to be easily transferred into the adult criminal justice system in the wake of the superpredator era had a lasting impact across the country.  Children continue to be subject to lengthy mandatory minimum sentences when they are tried as adults, and their status as children is often not considered during sentencing.

The adult system is not the right place for children, who grow up without educational opportunities, age appropriate services, or treatment if they are placed in it.  In the adult system, they face far greater risks of physical and sexual abuse, and are far more likely to commit suicide than youth committed to the juvenile justice system.  Long sentences driven by mandatory minimums further compound the harm these children suffer.  When we prosecute children in the adult system, where the focus is on punishment instead of on treatment, we continue failing to address why kids end up committing crimes in the first place....

As the law stands now, the hands of judges are tied when sentencing under statutes that require harsh mandatory minimums that do not consider the capacity of children to change.  Under House Resolution 1949, however, judges would be required to consider how children are fundamentally different from adults and would be authorized, but would not be required, to depart up to 35 percent from the otherwise applicable mandatory minimum sentence.  Similar legislation has been championed at the state level by members of both parties, and most recently by Republican state lawmakers in Arkansas and Nevada.

I believe this commentary means to reference this bill, H.R. 1949.  But the text of the bill, though it does allow a judge "to impose a sentence that is 35 percent below a level established by statute as a minimum sentence so as to reflect the juvenile’s age and prospect for rehabilitation," does not actually expressly require a judge to consider how juvenile offender are different than adult.  

August 27, 2019 in Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (0)

"Arrest, Release, Repeat: How police and jails are misused to respond to social problems"

The title of this post is the title of this notable new report from the Prison Policy Initiative authored by By Alexi Jones and Wendy Sawyer.  Here is how the report gets started:

Police and jails are supposed to promote public safety. Increasingly, however, law enforcement is called upon to respond punitively to medical and economic problems unrelated to public safety issues.  As a result, local jails are filled with people who need medical care and social services, many of whom cycle in and out of jail without ever receiving the help they need.  Conversations about this problem are becoming more frequent, but until now, these conversations have been missing three fundamental data points: how many people go to jail each year, how many return, and which underlying problems fuel this cycle.

In this report, we fill this troubling data gap with a new analysis of a federal survey, finding that at least 4.9 million people are arrested and jailed each year, and at least one in 4 of those individuals are booked into jail more than once during the same year. Our analysis shows that repeated arrests are related to race and poverty, as well as high rates of mental illness and substance use disorders.  Ultimately, we find that people who are jailed have much higher rates of social, economic, and health problems that cannot and should not be addressed through incarceration.

August 27, 2019 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Race, Class, and Gender, Who Sentences | Permalink | Comments (2)

Yet another great set of new Quick Facts publications from US Sentencing Commission

I am always eager to praise the US Sentencing Commission for continuing to produce a steady stream of its insightful little data documents in its terrific series of reader-friendly "Quick Facts" publications (which are designed to "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format").  In this post four week ago, I noted a whole bunch of new Quick Facts released in July 2019.  I now see the USSC has this month released a bunch more Quick Facts on a lot of major federal sentencing topics based on the USSC's recently released 2018 fiscal year data.  Here are these newer releases:

Sentencing Issues

Offender Groups

Immigration

Economic Crime

Other Chapter Two Offenses

August 27, 2019 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines | Permalink | Comments (0)

"Prosecutors Need to Take the Lead in Reforming Prisons"

The title of this post is the headline of this lengthy new Atlantic commentary authored by Lucy Lang.  The piece has the subtitle "Attorneys on the front lines of the criminal-justice system should be pressing for a drastically different model of incarceration."  And here are excerpts:

My years of prosecuting violent street crime and working with crime survivors and their families had deeply sensitized me to the devastating impact of violent crime on individuals and communities.  In fact, not so long ago, it was crime victims who were the forgotten ones in the criminal-justice system.  But [a victim] mother’s astounding display of empathy made me question whether I had given adequate thought to the impact of incarceration on individuals and, in turn, affected communities. I had focused on crime, but had I thought enough about punishment? I was myself the mother of two young children.  If a mother could find compassion for the men who killed her son, then surely I could too....

While the criminal-justice system, nationally and locally, has undergone significant reforms in recent years, the system requires far more extensive change.  Reform-minded prosecutors in jurisdictions across the country are working to tailor responses to crime to address its underlying causes and reduce our reliance on prisons while still encouraging accountability for those who cause harm.  They are looking to public-health and harm-reduction models as they try to keep many people out of prison and to identify ways to carefully tailor the appropriate amount of prison time for others.

It is not enough, though, for prosecutors to decline prosecution of low-level offenses and to create alternatives to incarceration for appropriate cases.  These work-arounds are important, but the majority of incarcerated Americans are imprisoned for crimes of violence.  Simply diverting nonviolent offenders and reducing sentence lengths will not solve mass incarceration.  And the use of these increasingly politically popular strategies for shrinking the footprint of the criminal-justice system ought not delay addressing the unconscionable state of American prisons....

[P]rosecutors should create Civil Rights Enforcement Units, just as many have created Alternatives to Incarceration Units and Conviction Integrity Bureaus.  Such units should focus on the development and maintenance of humane prison conditions, including advocating for the prisons on which they rely to implement trauma-informed training borrowed from medical and social work institutions, designed to encourage prison staff to treat residents with dignity and to create a culture of mutual respect.

Such units would serve as liaisons with departments of corrections, state attorneys general, and other relevant agencies to break down the silos that have enabled modern American prisons to damage their residents and employees alike for far too long, and thereby perpetuated the cycles of violence in our communities.  These units could lobby state legislatures to reform conditions, assist in allocating resources to prison programs and education, and communicate with parole and probation departments.  And finally, they could do the important work of educating prosecutors about the realities of the prison system, so that every time a prosecutor recommends a jail or prison sentence, she does so with full knowledge of what that sentence is likely to entail.

Prosecutors are, of course, neither solely responsible for, nor alone capable of solving the civil-rights crisis of mass incarceration.  Judges, police officers, defense attorneys, corrections officers, community advocates, and others have all contributed to the steep increase in people incarcerated and under correctional supervision in the United States during the latter part of the 20th century.  Each of these groups must step up to identify solutions.  And there will always be some people who cannot appropriately and safely remain in the community after committing an offense.  But prison must not inflict undue suffering....

Everyone who takes the oath of a prosecutor’s office in this country should come to work feeling the moral weight of our unacceptable prison conditions.  District attorneys can profoundly transform the criminal-justice system if they recognize their own role in perpetuating the harms of prison and commit to fixing American prisons.  Prosecutors should proactively employ their considerable power to investigate and prosecute abuse, other criminal conduct, and civil-rights violations behind bars, and use their bully pulpits to speak out loudly in favor of a drastically different prison model.  Prosecutors can promote long-term public safety and accountability, while also manifesting the empathy that has been too long absent in our system. The integrity of the system depends on it.

August 27, 2019 in Prisons and prisoners, Who Sentences | Permalink | Comments (0)

August 26, 2019

Feds officially commit to seeking death penalty for Pittsburgh synagogue mass murderer

As reported in this local article, the "Justice Department said Monday that it will seek the death penalty for Robert Bowers, accused of killing 11 at Tree of Life synagogue in Squirrel Hill and wounding six others last year in the worst attack on Jews in U.S. history." Here is more:

The move was expected. Within days of the Oct. 27 massacre, the U.S. attorney's office said it had started the approval process for seeking death for Mr. Bowers in consultation with DOJ's capital crimes unit and the U.S. attorney general, Jeff Sessions at the time.

In a court filing Monday, prosecutors said Mr. Bowers qualifies for the death penalty because he allegedly targeted vulnerable people out of religious hatred, killed multiple victims and tried to kill others, chose the site to make an impact and showed no remorse, among other factors.

The decision to seek death comes despite a request by two of the Jewish congregations targeted in the shootings to spare Mr. Bowers' life.  In a recent letter to Attorney General William Barr, the groups cited religious and personal objections to capital punishment.  They also expressed concern about a trial and penalty phase that would require testimony from survivors, exposing them to further trauma.

Stephen Cohen, co-president of New Light Congregation, who had written to Attorney General Barr urging he accept a guilty plea with a guaranteed life sentence, said it was “absolutely the wrong decision” to seek the death penalty.  A trial will not bring closure to victims, he said. They will have to testify in court and sit there while “this heinous person tries to prove he didn’t do something he obviously did,” Mr. Cohen said. There’s no guarantee of a conviction, he said, and even if there is a finding of guilt, “people stay on death row for years and years.”...

Death penalty cases are rare in the federal system and executions almost never occur. Only three people have been put to death federally since the death penalty was reinstated in 1988....  Mr. Bowers is only the fourth person to face death in the history of the Western District of Pennsylvania, which comprises 25 counties.  None was executed.

August 26, 2019 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Shaming and handwriting requirements in sentencing for offenders who falsely claimed to be veterans

As reported in this AP piece, headlined "Montana Men Get Writing Assignment for False Military Claims," a local judge in Montana created a notable set of additional requirements in the sentencing of two defendants who sought the wrong path to leniency.  Here are the details:

Two Montana men who were sentenced to prison for violating the terms of the probation in separate crimes won't be eligible for parole until they complete a writing assignment given because they falsely claimed to have served in the military to have their cases moved to a Veterans Court.

Cascade County District Judge Greg Pinski sentenced Ryan Patrick Morris, 28, and Troy Allan Nelson, 33, on Friday. Morris got 10 years in prison for violating the terms of his probation for felony burglary, while Nelson got five years on a drug possession conviction. Pinski suspended three years of each defendant's sentence.

Before they can be eligible for parole, Pinski ordered both men to hand write the names of all 6,756 Americans killed in Iraq and Afghanistan; write out the obituaries of the 40 Montanans killed in Iraq and Afghanistan and send hand-written letters of apology to several veterans groups identifying themselves as having lied about military service to receive help and possibly a lesser sentence through a Veterans Court....

Morris claimed in 2016 he did seven combat tours in Iraq and Afghanistan, had PTSD and had his hip replaced after being injured by an improvised explosive device. He was sentenced to perform 441 hours of community service with a veteran's organization — one for each Montanan killed in combat since the Korean War. Court records said he only completed 10 hours.

Nelson managed to get himself enrolled in the Veterans Treatment Court before it was determined he hadn't served in the military, the Great Falls Tribune reported. Once released from prison, they must perform 441 hours of community service.

Pinski also ordered that during the suspended portions of the sentences the defendants must stand at the Montana Veterans Memorial in Great Falls for eight hours on each Memorial Day and Veterans Day wearing a placard that says: "I am a liar. I am not a veteran. I stole valor. I have dishonored all veterans."

Attorneys for both men objected to the placard condition.... Pinski said he was punishing the men for lying to the court. He also cited Montana Supreme Court rulings that give him discretion to take the stolen valor into account and others that upheld the placard requirements.

August 26, 2019 in Criminal Sentences Alternatives, Reentry and community supervision | Permalink | Comments (0)

Making the case for the Fair Chance Act of 2019

John Malcolm and Brett Tolman have this notable new Daily Signal commentary under the headline "A Bill to Give Former Inmates a Second Chance." The lengthy piece is worth the full read, and here are excerpts:

Congress is currently considering the Fair Chance Act of 2019, a bill designed to increase the odds that formerly-incarcerated individuals can get jobs upon their release and prove to the world that they’ve turned a new leaf and are prepared to be law-abiding, productive citizens.  Although hardly a panacea, the bill has a lot of merit and is worthy of serious consideration by Congress....

It is, of course, incredibly important to provide people with the skills they need to become productive workers and to stay on the straight and narrow upon release from prison. But it may all be for naught if no employer will give those formerly-incarcerated individuals a job.  Gainful employment is a key factor for reducing recidivism, as numerous studies have shown.

That’s what led the president to launch his Second Chance Hiring initiative back in June. The president noted that “[t]oo often, former inmates are not considered for jobs even if they’re qualified, rehabilitated, and ready to work.”  He went on to announce the administration was “taking crucial steps to encourage business to expand second chance hiring practices.”  In similar fashion, it is this very issue that the Fair Chance Act seeks to address.

Just how bad is the problem?  Extremely bad.  In 2014, the FBI estimated that 77.7 million individuals — nearly one-third of the people living in this country — had a criminal record, with 10,000 to 12,000 names being added each day, according to the Wall Street Journal.  Even this startling statistic might understate the extent of the problem.  A 2012 study by the Bureau of Justice Statistics of state criminal records determined that over 100 million people living in the United States and its protectorates have a criminal record.

Moreover, the unemployment rate for those with a criminal record is particularly high.  In 2008 (the last year for which such data is available), the unemployment rate for formerly incarcerated individuals was 27.3% — over five times the unemployment rate for the general population.

No doubt, others with arrest records or who were convicted of crimes but never incarcerated struggle to find jobs, too. A 2009 study by Princeton and Harvard researchers indicated that those who check the box on a job application indicating they have a criminal record are 50% less likely to receive a callback than those who do not check the box.

That’s where the Fair Chance Act comes in.  With certain exceptions, the bill would require the federal government and federal contractors to “ban the box” as part of their hiring practices.  This would prevent a prospective employer from conducting a criminal background check or otherwise inquiring about an applicant’s criminal record until such time as a conditional job offer is extended.  Once an offer is made, the employer can then conduct the criminal background check as needed....

The purpose of “ban the box” policies is not to prevent an employer from making the ultimate decision about whether to hire somebody with a criminal record.  The point of such policies is to give someone with a criminal record the opportunity to get a foot in the door and impress a would-be employer with his or her job-related skills during the interview process.  Presumably, if the employer is impressed enough to extend a conditional job offer, the employer will be more likely to engage in a productive conversation with the applicant and ultimately hire him upon learning that he has a criminal history.

Too often, the applications of those who check the criminal record box are immediately discarded, despite the fact that many such applicants may genuinely be contrite about what they have done and be prepared to work exceptionally hard to prove to their employers and to the rest of the world that they deserve another chance.

Many states and localities have already adopted “ban the box” hiring procedures, as have some of the nation’s largest employers, such as Home Depot, Walmart, Starbucks, Target, and Koch Industries.

There are some potential concerns with the bill, however.  While banning the box may be a good idea from a moral perspective and even a business strategy, we generally disfavor imposing new requirements on private employers.  Admittedly, the bill would apply only to employers who seek to become government contractors. And again, there’s nothing in the bill that would prevent would-be employers, including those seeking to become government contractors, from ultimately obtaining the criminal history of applicants and deciding whether to go forward and hire an individual with a criminal record.

The Fair Chance Act is by no means a cure-all.  For instance, out of the nearly 45,000 collateral consequences identified by the Council of State Governments that are frequently imposed on individuals who have been convicted of a crime, a substantial majority of them are employment related.  These collateral consequences can pose a significant impediment to formerly incarcerated individuals — as if they didn’t have enough impediments already—when it comes to obtaining gainful employment.

Moreover, a multitude of other occupational licensing laws explicitly or implicitly exclude formerly incarcerated individuals from obtaining licenses to enter certain professions because they are deemed to lack “good moral character.”  The Fair Chance Act would do nothing to ameliorate this problem.... Nonetheless, there are many positives to consider in the Fair Chance Act, and it is good to see Congress looking for ways to address this serious problem.

The bottom line is that people cannot be permanently marginalized and made to feel like second-class citizens.  Released offenders have a difficult enough time as it is.  If people are pushed into the corner and denied opportunities for gainful employment for too long, they will have little choice but to recidivate, which means wasted lives, ruined families, and more crime.  That is not in anybody’s best interests.

August 26, 2019 in Collateral consequences, Reentry and community supervision | Permalink | Comments (1)

Exploring how compassionate release after FIRST STEP might indirectly help with persistent federal clemency problems

Grant Pardon RatioRJ Vogt over at Law360 has this lengthy new piece discussing both federal clemency and one of my favorite parts of the FIRST STEP Act under the headline "How Courts Could Ease The White House's Clemency Backlog."  I recommend the piece in full, and here are some extended excerpts:

More than 11,430 federal prisoners, many of them nonviolent offenders serving life sentences, have commutation petitions pending at the U.S. Department of Justice’s Office of the Pardon Attorney, or OPA. Another 2,393 applications for presidential pardons, which are generally issued after someone completes a sentence, are also pending.

Both numbers mark record highs for a clemency system that America’s founding fathers designed to be, in the words of Alexander Hamilton, “as little as possible fettered or embarrassed.”

Today, access to clemency is anything but. Sam Morison, a former OPA attorney who now helps clients file petitions, says the Justice Department uses its oversight to stymie petitions before they ever reach the president’s desk. “The DOJ is to blame for the backlog,” Morison said. “They view their role as protecting the prosecutorial prerogative because, let's face it, that's what they do.”

Some legal scholars believe the First Step Act, a landmark criminal justice reform bill President Donald Trump signed into law in December, created a way for inmates to bypass DOJ oversight by asking judges for sentence reductions based on the circumstances of their cases.

But the concept hasn’t been tested in large numbers yet, and in the meantime, the odds of getting presidential relief are approaching zero. The office that granted 41% of all pending and newly filed clemency petitions in 1920 is on track to grant less than 0.1% under Trump....

Much of today’s epic backlog can be traced to President Barack Obama’s 2014 Clemency Initiative.

The project, which was designed to identify nonviolent federal prisoners who would not threaten public safety if released, got off to a rocky start when the DOJ sent the entire federal prison population a notice of the initiative and a survey to gauge inmate interest. The DOJ’s failure to “exclude inmates who were clearly ineligible for consideration” led to an overwhelming response, according to a 2018 inspector general report.

Over the last 33 months of Obama’s presidency, OPA received more commutation petitions than it had in the previous 24 years combined. At the same time, pardon petitions doubled, from a yearly average of 276 to an average of 521....

Shon Hopwood, a professor at Georgetown University Law Center, believes the First Step Act created a new path to commuted sentences... [H]e cited the First Step Act’s expansion of compassionate release as a more accessible option....

Under the First Step Act, a defendant no longer needs the bureau's backing. If the director won’t make the request for an inmate within 30 days of being asked, the new law allows the defendant to file a motion for resentencing directly in court. In a forthcoming law review article, Hopwood writes that judges can now consider “extraordinary” reasons for compassionate release without having to wait for Bureau of Prisons approval.

“Those serving long or life without parole sentences for marijuana trafficking offenses are the first to come to mind,” he wrote. “Another group ... might be those sentenced to harsh mandatory minimum sentences, even though the facts of their crimes made them far less culpable than someone committing a run-of-the-mill offense.”...

Margaret Love, U.S. pardon attorney from 1990-1997, told Law360 that the concept is “the hidden, magical trapdoor in the First Step Act that has yet to come to everyone’s attention.”

“This has obviated the need for the clemency process to take care of the great majority of commutation cases,” she said.

Hopwood acknowledged that prosecutors are likely to oppose these motions, but said they could provide a safety valve in which the judiciary simultaneously helps alleviate mass incarceration and the OPA’s commutation workload.

A few prior related posts on § 3582(c)(1)(A) after FIRST STEP Act:

August 26, 2019 in Clemency and Pardons, FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

August 25, 2019

Making the case for education as the means "to radically change the lives of the incarcerated"

Sean Pica has this new commentary headlined "The First Step is just the beginning. Here’s how to radically change the lives of the incarcerated." Here are excerpts:

"95 percent of all state prisoners will be released at some point in their lives. This includes most of the estimated 1,800 inmates incarcerated in Sing Sing Correctional Facility — a maximum-security prison located just 30 miles from New York City — and the place where I spent nearly 16 years of my life.

As more and more prisoners are being freed, some are skeptical that the incarcerated and those with criminal records are worthy of a second chance. They ask: is rehabilitation possible?  As a former inmate, I’m living proof that it is possible to reintegrate back into society and lead a productive life.  But to do that, the formerly incarcerated and those with a criminal record need a helping hand.

For me, it was being the beneficiary of bold thinking from the New York State Department of Corrections.  Thanks to their efforts, I was able to earn a college degree inside of Sing Sing through Hudson Link for Higher Education in Prison. The nonprofit, which I now lead, provides a college education and reentry support services to incarcerated men and women in five New York correctional facilities.

Recently, I helped organize Hudson Link’s biggest graduation ceremony to date, 48 graduates in total — most of them minorities — with more than 400 family members, friends, and well-wishers cheering them on....  In its 21-year history, Hudson Link has helped more than 700 men and women earn a college diploma, saving New York state taxpayers over $21 million per year.  The program boasts a recidivism rate of less than 2 percent.

Thanks to partners like the nonprofit Stand Together Foundation and inspiring correctional leaders like Sing Sing Superintendent Michael Capra, Hudson Link is helping put an end to the vicious cycle of recidivism and inter-generational incarceration by breaking down barriers that prevent people from realizing their full potential.

Let’s move away from the tired mentality of seeing prisoners as a punchline and a liability to manage, but instead as men and women with the potential to accomplish great things.

UPDATE: Not long after posting this Pica piece, I came across this similar New York Daily News commentary by Darnell Epps headlined "Help former prisoners learn: Giving the incarcerated access to higher education helps them recover their humanity." Here is a snippet:

This week, classes begin at Cornell University for some 20,000 students, including me. It’s my senior year. I’m probably not the type you expect to see at Cornell, a university that graduated the likes of the Notorious RBG and billionaire magnate Robert Smith; no, my pathway included a 17-year prison sentence, for my role in a shooting.  Yet I hope my presence here — and my future success in pursuing a law degree — sends a powerful message that former prisoners can not only contribute to society, but can do important things....

The Crime Bill, signed into law 25 years ago, ended Pell Grants for folks in prison, eventually drying up funding and causing many colleges to withdraw from prisons altogether. That was a terrible mistake.  Today, federal lawmakers debate the language and scope of the Restoring Education and Learning Act — a measure that would give thousands of prisoners the chance to get some tuition help.  They must think big.

August 25, 2019 in Prisons and prisoners, Reentry and community supervision | Permalink | Comments (2)

"Whom the State Kills"

The title of this post is the title of this notable new empirical paper authored by Scott Phillips and Justin Marceau now available via SSRN. Here is its abstract:

Through original quantitative research we show that persons convicted of killing a white victim and sentenced to death are more likely to be executed than persons convicted and sentenced to death for killing a black victim.  Previous research documents numerous forms of arbitrariness and racial disparity in the administration of the modern death penalty, but focuses exclusively on the charging and sentencing patterns of prosecutors and juries.  Previous research also reveals that implicit bias operates within the institutions tasked with seeking and obtaining sentences of death.  Our original research shows that the problem of disparate racial outcomes is actually exacerbated through the work of our most trusted check on the death penalty, appellate courts.

Building on David Baldus’s storied dataset from Georgia, we demonstrate that the racial disparities he discovered in the penultimate stage of the case — death sentences — were amplified in the ultimate stage of the case — executions.  Combining both phases reveals a stunning pattern: the execution rate is roughly 17 times greater in white victim cases than black victim cases.  Although Baldus could not have known how the cases would unfold post-sentencing, our findings indicate that the racial disparities described in McCleskey v Kemp (1987) underestimated the extent of the death penalty’s arbitrariness problem.

August 25, 2019 in Data on sentencing, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)