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March 7, 2020

Citing Williams v. New York repeatedly, NY prosecutors urge judge to consider Harvey Weinstein's "lifetime of abuse" at sentencing

As reported in this USA Today piece, headlined "Harvey Weinstein prosecutors seek tough sentence for his 'lifetime of abuse'," state prosecutors delivered to the sentencing judge in the Weinstein case a notable 11-page letter urging the judge to focus on a whole lot of uncharged conduct at this week's upcoming scheduled sentencing. Here are the basics:

Harvey Weinstein's sentence for his conviction on two sex crimes should reflect his "lifetime of abuse" as shown at his trial and in 36 other cases of sexual harassment and assault, workplace abuse and even physically assaulting a reporter, Manhattan prosecutors said in a letter to the trial judge released Friday.

The 11-page letter from Assistant District Attorney Joan Illuzzi was sent to Judge James Burke in advance of Weinstein's sentencing on March 11, when prosecutors are expected to make an oral statement in court about the sentence.

The trial evidence, the testimony of the six accusers who took the stand, and additional allegations outlined in the letter, Illuzzi said, "show a lifetime of abuse towards others, sexual and otherwise." She asked the judge to "impose a sentence that reflects the seriousness of defendant's offenses, his total lack of remorse for the harm he has caused, and the need to deter him and others from engaging in further criminal conduct."

Weinstein was convicted Feb. 24 of third-degree rape and first-degree sexual assault involving two women, and was acquitted of three more serious charges. He could be sentenced to prison for a term ranging from five years to 25 years....

Prosecutors, who want Weinstein's sentence to fall at the longer end of the spectrum, compiled a list of accusations they collected over two years to demonstrate that Weinstein is a predator, even if he's been convicted of only two crimes. "As this court is well aware, in imposing what it deems to be a fair and just punishment, a sentencing court is not limited to the evidence at trial," Illuzzi wrote, citing precedent to argue that the judge has "wide discretion to consider all circumstances that shed light on a convicted person's background, history and behavior" in considering a sentence.

"Chief among the information considered at sentencing is the defendant's history of 'misconduct, whether or not it resulted in convictions,' " Illuzzi said, citing precedents in several federal cases.

Arthur Aidala, one of Weinstein's defense lawyers, told USA TODAY his team has no comment on the prosecution's letter. He said they expect to issue their own pre-sentencing letter to the judge on Monday....

The prosecution list of 36 allegations is divided into three categories: alleged acts of sexual assault and harassment; alleged abusive behavior in the work environment; and other alleged "bad acts." The earliest alleged sexual assault occurred in 1978 when an employee of his music promotion company in Buffalo said she was forced to share a New York City hotel room with Weinstein and woke up to find him raping her. The most recent alleged assault occurred in 2014 at the Cannes Film Festival where he allegedly trapped a woman in a hotel room bathroom and groped her while masturbating.

The full 11-page letter is available at this link, and it makes quite the interesting read. Hard-core sentencing fans know that, over seventy years ago, the Supreme Court upheld the use of uncharged conduct at sentencing in a case from New York, Williams v. New York, 337 U.S. 241 (1949).  Fittingly, Williams is the cited and quoted repeatedly in this sentencing letter from prosecutors to the sentencing judge.

March 7, 2020 in Celebrity sentencings, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (3)

"Technologies of Crime Prediction: The Reception of Algorithms in Policing and Criminal Courts"

The title of this post is the title of this intriguing and timely new article authored by Sarah Brayne and Angèle Christin just published in the journal Social Problems. Here is its abstract:

The number of predictive technologies used in the U.S. criminal justice system is on the rise.  Yet there is little research to date on the reception of algorithms in criminal justice institutions.  We draw on ethnographic fieldwork conducted within a large urban police department and a midsized criminal court to assess the impact of predictive technologies at different stages of the criminal justice process.

We first show that similar arguments are mobilized to justify the adoption of predictive algorithms in law enforcement and criminal courts.  In both cases, algorithms are described as more objective and efficient than humans’ discretionary judgment.  We then study how predictive algorithms are used, documenting similar processes of professional resistance among law enforcement and legal professionals.  In both cases, resentment toward predictive algorithms is fueled by fears of deskilling and heightened managerial surveillance.  Two practical strategies of resistance emerge: foot-dragging and data obfuscation.  We conclude by discussing how predictive technologies do not replace, but rather displace discretion to less visible — and therefore less accountable — areas within organizations, a shift which has important implications for inequality and the administration of justice in the age of big data.

March 7, 2020 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

March 6, 2020

"Women in Prison: Seeking Justice Behind Bars"

100The title of this post is the title of this nearly 300-page(!) "briefing report" released last week by the United States Commission on Civil Rights. Here is a brief overview of the report from the transmittal letter that fronts it:

This report examines the civil rights of women in United States prisons.  The population of women in prison has increased dramatically since the 1980s, and this growth has outpaced that of men in prison, yet there have been few national-level studies of the civil rights issues incarcerated women experience.  The Commission studied a range of issues that impact incarcerated women, including deprivations of women’s medical needs that may violate the constitutional requirement to provide adequate medical care for all prisoners; implementation of the Prison Rape Elimination Act (PREA); and the sufficiency of programs to meet women’s needs after release.  The Commission also examined disparities in discipline practices for women in prison compared with men, and the impacts of incarcerated women being placed far from home or having their parental rights terminated.

The Commission majority approved key findings including the following: Many prison policies and facilities are not designed for women or tailored to their specific needs. Rather, many policies were adopted from men’s prison institutions without evaluating their application to women’s prison institutions.  Incarcerated women report extremely high rates, and much higher rates than men, of histories of physical, sexual, and mental trauma.  Notwithstanding federal statutory legal protections such as the Civil Rights of Institutionalized Persons Act (CRIPA) and the Prison Rape Elimination Act (PREA), aimed at protecting incarcerated people, many incarcerated women continue to experience physical and psychological safety harms while incarcerated and insufficient satisfaction of their constitutional rights.  Department of Justice (DOJ) litigation against prison systems involving sexual abuse among other wrongs has secured important changes to safeguard incarcerated women’s rights.

Classification systems that are not calibrated for gender-specific characteristics have been shown to classify incarcerated women at higher security requirement levels than necessary for the safety and security of prisons; women classified at higher security levels may receive fewer vocational and educational, community placement, and reentry opportunities than they would have received had they been classified at lower security levels.  Many incarcerated women are placed at facilities far from their families, limiting visitation opportunities.  Many prison policies do not prioritize family visits, such as by permitting extremely limited family visitation hours that often do not reflect distances visiting family must travel.

Some prisons provide adequate healthcare specific to women, such as gynecological and prenatal care, while others do not.  The high rates at which incarcerated women report past trauma results in the need for mental health care and treatment while incarcerated. Sexual abuse and rape remain prevalent against women in prison. Incarcerated women who report sexual assault have experienced retaliation by their institutions and prison personnel in violation of the law.

The Commission majority voted for key recommendations, including the following: DOJ should continue to litigate enforcement of the civil rights of incarcerated women in states that violate these mandates and the rights of incarcerated women.  Prison officials should adopt validated assessment tools, currently available, to avoid inaccurately classifying incarcerated women to a higher security level than appropriate.  Prison officials should give strong preference to placing incarcerated women in as close proximity as possible with location of their family, provide free video and lowcost phone services to incarcerated persons, and not ban in-person visits for non-safety reasons.

Prison officials should implement policies to address women’s specific healthcare needs, including gynecological and prenatal care, as is constitutionally required. Prisons should have adequate mental health care staff and treatment programs available to meet the needs of the many incarcerated women with mental health challenges, such as past trauma.  Congress should enact stricter penalties for non-compliance with PREA standards focused on inmate safety and consistently appropriate funding sufficient to ensure correctional agencies comply with PREA.  Prisons should implement evidence-based, trauma-informed discipline policies to avoid harsh punishments for minor infractions, and recognizing the significant harms that can result from placement in restrictive housing.  Prisons should ensure restrictive housing is not used against people of color, LGBT people, and people with mental health challenges in a discriminatory manner.

March 6, 2020 in Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1)

The new SSRN adventures of some older writings

Some recent posts on topic ranging from second-look sentencing mechanisms to drug policy in part led me to make sure some older writings of mine were posted to SSRN for accessibility in that forum.  Specifically, I have recently had posted the following "old" papers in this "new" setting:

Encouraging (and Even Requiring) Prosecutors to Be Second-Look Sentencers

Sentencing is Dang Hard... And So...

Reflecting on Parole's Abolition in the Federal Sentencing System

Teaching Drugs: Incorporating Drug Policy into Law School Curriculum

In addition to welcoming feedback on these works, I would also welcome thoughts on whether folks find SSRN a particularly useful (or not-so-great) online repository.  I have many (though not all) of my longer scholarly writings available via SSRN, but I have not made a sustained effort to upload a lot of amicus briefs and shorter pieces to the site.  I sense not a lot of practicing lawyers and other non-academics use SSRN regularly, but perhaps I am not quite right on that assessment.

March 6, 2020 in On blogging, Recommended reading | Permalink | Comments (1)

March 5, 2020

Despite prominent calls for clemency, Alabama completes execution of Nathaniel Woods

As reported in this local article, Nathaniel Woods "was executed Thursday evening on a 2005 conviction of being an accomplice to the murder of three police officers." Here is more about a case that had receive considerable attention prior to tonight's execution:

Nathaniel Woods, 43, was pronounced dead at 9:01 p.m. after an execution that lasted 15 minutes.  The three Birmingham police officers — Charles Bennett; Carlos "Curly" Owen and Harley Chisholm III — were killed on June 17, 2004 with a semi-automatic rifle while entering a drug house.

Woods was put to death amid a storm of appeals and protests from supporters, who noted that Woods did not actually kill the officers; that Woods' attorneys missed key deadlines in his appeals, and that the trigger man — also on death row — said Woods was not involved....

Family members of the officers who attended the execution said Woods was as guilty as the man who pulled the trigger.  "Our loved ones took their last breath while upholding the law to make (Birmingham) a safer place," said Rhonda Hembd, the sister of Harley Chisholm, after the execution.  "Our families will not have closure until Kerry Spencer’s execution date. May God have mercy on their souls.  Until then may our loved ones rest in peace."...

The Woods family and hundreds of thousands of people appealed to Gov. Kay Ivey to extend clemency to Woods....  In a statement Thursday night, Ivey accused Woods of luring the police officers into the house, and said two other individuals had been executed in Alabama since 1983 "for being an accomplice to capital murder."

“After thorough and careful consideration of the facts surrounding the case, the initial jury’s decision, the many legal challenges and reviews, I concluded that the state of Alabama should carry out Mr. Woods’ lawfully imposed sentence this evening," the statement said.

Though Woods acknowledged he and Spencer sold drugs, he is not accused of actually killing the officers and by all accounts did not have a gun at the time of the shooting.  But at his 2005 trial, prosecutors argued that Woods had "conspired" with the shooter, Kerry Spencer.  Alabama law makes a person legally accountable for the behavior of another person if he or she "procures, induces or causes such other person to commit the offense."  Prosecutors did not provide evidence that Woods held or fired a gun during the incident.

A jury convicted Woods and voted 10-2 to sentence him to death.  Spencer told The Appeal last month that Woods was not involved and that "there was no plan to kill the police."...

U.S. Sen. Doug Jones of Alabama said in a statement Thursday he called Ivey's office to express concerns about the case.  "Given the questions and mitigating issues involved in this case — and the finality of a death sentence — a delay is warranted to provide time for a thorough review of all the facts and circumstances to truly ensure that justice is done," the statement said.

Kim Kardashian West sent a tweet urging Ivey to commute Woods' sentence, and later shared a number for Gov. Ivey's office.  The rapper and actor T.I. also called on followers to contact Ivey. The family of former Alabama and Green Bay Packers quarterback Bart Starr also called for clemency.

March 5, 2020 in Death Penalty Reforms, Who Sentences | Permalink | Comments (5)

Federal prosecutors and hundred of victims write in opposition to Bernie Madoff's compassionate release motion

Last month, as noted in this post, Bernie Madoff filed a motion for compassionate release thanks to a provision of federal law modified by the FIRST STEP Act.  This week, filings in response came from federal prosecutors.  This USA Today piece has the filing and reports on it  starting this way:

Federal prosecutors on Wednesday night objected to Ponzi scheme mastermind Bernard Madoff's bid for release from prison, arguing that the reviled and ailing ex-financier should continue serving his 150-year sentence.

Charging that the 81-year-old convict who ran one of history's biggest scams has "demonstrated a wholesale lack of understanding of the seriousness of his crimes and a lack of compassion for his victims," the U.S. Attorney's Office for the Southern District of New York urged a judge to keep him in prison.

"Madoff's crimes were 'extraordinarily evil.' His sentence was appropriately long. It should not be reduced," Assistant U.S. Attorneys Drew Skinner and Louis Pellegrino wrote in the filing to U.S. Circuit Court Judge Denny Chin, who sentenced Madoff more than a decade ago.

I think the first paragraph of the filing is effective:

The Government respectfully submits this memorandum of law in opposition to defendant Bernard L. Madoff’s request for 92% reduction in his sentence.  The nature of Madoff’s crime — unprecedented in scope and magnitude — wholly justified the 150-year sentence this Court imposed and is by itself a sufficient reason to deny Madoff’s motion.  Furthermore, since his sentencing, Madoff has demonstrated a wholesale lack of understanding of the seriousness of his crimes and a lack of compassion for his victims, underscoring that he is undeserving of compassionate release himself.  Finally, the Section 3553(a) factors weigh heavily against his release.

This CNBC piece report on some of the victim letters opposing Madoff's motion. Here is how this article gets started:

Hundreds of victims of Ponzi scheme kingpin Bernie Madoff really don’t want him to get out of prison despite his claim that he is dying. They recently told a judge their reasons in often-heartbreaking letters.

“Our lives, and not just financially, also emotionally, mentally, and physically . . . were Destroyed,” wrote one victim, who noted that her husband lost $850,000 to Madoff.

Another woman wrote, “I lost all my money and my husband of 40 years committed suicide because of his horrific crimes. As far as I am concerned, he should spend the rest of his life in jail,” she wrote to Judge Denny Chin in U.S. District Court in Manhattan.

Releasing Maddoff, a third victim told Chin, “would be to put another knife in the hearts of his victims.”

Those three letters are among the approximately 520 that Madoff victims sent Chin on the heels of Madoff’s court filing last month seeking early release from his 150-year prison sentence because he has terminal kidney disease.

Prior related posts:

March 5, 2020 in FIRST STEP Act and its implementation, Offender Characteristics, Offense Characteristics, Sentences Reconsidered, Victims' Rights At Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (0)

"The Saga of Pennsylvania’s 'Willie Horton' and the Commutation of Life Sentences in the Commonwealth"

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

In 1994, Reginald McFadden’s sentence of life without the possibility of parole was commuted by the governor of Pennsylvania, and he was shipped to New York to be supervised by a bunch of amateurs.  Within roughly 90 days, he murdered two people, raped and kidnapped a third, and possibly murdered a fourth. McFadden proved to be Lieutenant Governor Mark Singel’s “Willie Horton.”  Singel, who had voted for McFadden’s release as a member of the Board of Pardons, lost the gubernatorial election to his Republican opponent who ran on a “life-means-life” platform. Compounding the tragedy of McFadden’s actions, the Pennsylvania Constitution was amended to require a unanimous vote of the pardon board for the commutation of life sentences.

In the last 25 years, only 25 lifers have won commutation, 19 of whom were freed by the current chief executive, Governor Wolf.  Drawing on materials culled from the state archives and right-to-know requests, this article, which has the makings of a serial podcast, explores the bureaucratic blunders and biased judgments that have left a large number of aging rehabilitated lifers to await death by incarceration.  The Article ends with proposals for reform the commutation process to counter the fear of the “Willie Horton Effect” experienced by public officials involved in pardon decisions.

March 5, 2020 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Will Oregonians vote to decriminalize all drug possession this November?

The question in the title of this post is prompted by this local news piece, headlined "Oregon Voters Could Decide This Year Whether To Decriminalize Drugs," about a ballot proposal that likely will be getting more and more attention in the months ahead.  Here are the basic details:

The proposed ballot measure, which has been financed by the New York-based Drug Policy Alliance, would make Oregon the first state to remove criminal penalties on possession of illegal drugs....

“By removing harsh criminal penalties, we want to bring people into the light,” said Anthony Johnson, a Portland political consultant who is a chief sponsor of the measure.  “We want people to be willing to talk to their friends and families and loved ones and get the treatment they need.”

The measure, now technically known as Initiative Petition 44, would reduce possession of illegal drugs — including heroin, methamphetamine and cocaine — to a non-criminal, $100 citation. And that citation could be waived if a person agrees to get a health assessment at a drug recovery center.  Drug trafficking and possession of large amounts of illegal drugs would continue to carry the same criminal penalties.

The proposed ballot measure also calls for providing a big increase in funding for drug treatment, which surveys suggest is more poorly funded in Oregon than in almost any state in the country. Most notably, the measure would divert most cannabis tax revenues away from schools and other services to provide at least $57 million a year for drug treatment. In addition, the measure calls for the state to take savings from reduced incarceration rates for drug crimes and put them into treatment programs.

Those efforts to boost treatment funding have been emphasized by measure petitioners. Several treatment advocates have endorsed the measure, including Richard Harris.  He founded Central City Concern in Portland and once headed the state’s office of Addictions and Mental Health Services. “The reality of it is that the effort to punish people because they have an addiction has always been a misplaced public policy,” Harris said.

But the initiative, which was first filed last August, has also raised concerns among many providers. Heather Jefferis is executive director for the Oregon Council for Behavioral Health, which represents many of the state’s major treatment providers. She said in a statement that, “We are not confident this proposal will address Oregon’s longstanding access crisis for Substance Use Disorder or Mental Health treatment services.”...

The decriminalization measure has met vociferous opposition from some law enforcement officials. Clackamas County District Attorney John Foote said he worries decriminalization would make it more socially acceptable to use dangerous drugs. “The trick is to not get people hooked in the first place,” he said. “If you get involved in heroin and methamphetamine, the road back is filled with failure.”

Oregon has already taken several steps toward reducing drug penalties. In 2017, the Legislature lowered several drug-possession charges from felonies to misdemeanors. And in many localities, prosecutors have increasingly focused on diverting drug offenders out of the criminal justice system and into treatment programs.

The Drug Policy Alliance, which helped fund Oregon’s 2104 cannabis legalization measure, has received major funding from billionaire investor George Soros. The group has so far provided virtually all the $850,000 donated to the measure campaign. Johnson said the campaign would be run by Oregonians and expects to attract many in-state donors.

The official website supporting Initiative Petition 44 (IP 44) is available at this link.  Here is how it describes the effort:

People suffering from addiction need help, not criminal punishments.  The Drug Addiction Treatment and Recovery Act, or IP 44, is a citizen initiative that Oregonians will vote on in November.  The idea is straightforward: instead of arresting and jailing people for drugs, we would begin using some existing marijuana tax money to pay for expanded addiction and recovery services, including supportive housing, to help people get their lives back on track.

This ballot measure doesn’t legalize any drugs.  Rather, it removes criminal penalties for small amounts of personal possession of drugs and directs people to drug treatment and recovery services.

March 5, 2020 in Criminal Sentences Alternatives, Drug Offense Sentencing, Offense Characteristics, Who Sentences | Permalink | Comments (0)

March 4, 2020

"Deal Jumpers"

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

Fundamental fairness dictates that when a criminal defendant enters a plea in exchange for the prosecutor’s sentence concession, the defendant should actually receive the sentence for which he or she bargained.  Surprisingly, however, many states permit the judicial practice of deal jumping: the judge can accept the defendant’s plea, disregard the sentence concession that induced the plea in the first place, and then sandbag the defendant with any punishment the judge wishes to impose.  Worse yet, the hapless defendant is left without recourse, unable to withdraw his or her plea.

Deal jumping is fundamentally unfair to defendants and harmful to the criminal justice system—a system that relies on plea bargains for more than 95 percent of its convictions.  To ensure fairness, transparency, and integrity in plea bargaining, state legislatures should eliminate deal jumping and require judges to approve or reject sentence concessions at the same time they approve or reject charge concessions: before accepting the defendant’s plea.  Alternatively, if a judge accepts the defendant’s plea but then decides to exceed the agreed-upon sentence, the defendant should be allowed to withdraw his or her plea and proceed to trial.

Legal reform to eliminate deal jumping is simple to implement and has garnered broad-based support; nonetheless, state legislatures often resist change, clinging blindly to the status quo.  Therefore, this Article also provides defense lawyers with a practical plea-bargaining strategy to protect their clients.  Defense counsel should consider invoking little-known but effective legal rules — rules which exist in many states — to constrain judicial abuse, provide greater certainty at sentencing, and even ensure the defendant receives the actual benefit for which he or she bargained.

March 4, 2020 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

US House Judiciary Committee to hold hearing March 5 to explore "Presidential Clemency and Opportunities for Reform"

I am quite pleased to see that the Subcommittee on the Constitution, Civil Rights, and Civil Liberties of the Committee of the Judiciary of the US House of Representatives has this hearing scheduled for 9am on the morning of March 5, 2020 to address ""Presidential Clemency and Opportunities for Reform."  I am even more pleased to see, from this witness list, who will be the scheduled witnesses:

Ms. Rachel Barkow, Vice Dean and Segal Family Professor of Regulatory Law and Policy and Faculty Director, Center on the Administration of Criminal Law, New York University School of Law<

Mr. Mark Osler, Professor and Robert and Marion Short Distinguished Chair in Law, University of St. Thomas School of Law

Ms. Cynthia Roseberry, Deputy Director, National Policy Advocacy Department, American Civil Liberties Union

Ms. Kemba Smith Pradia, Founder, Kemba Smith Foundation

March 4, 2020 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Prez Trump has another meeting about criminal justice reform with Kim Kardashian West and women who have recently received clemency

As reported in this ABC News piece, "Kim Kardashian West met with President Donald Trump and several women whose prison sentences he commuted at the White House on Wednesday, multiple administration officials confirmed to ABC News." Here is more:

She announced the visit on Twitter Wednesday morning saying the visit would not only bring "light to these women" but open discussion for "more change that our justice system desperately needs!"

West has worked with the White House on criminal justice reform issues since 2018, when she appealed to the president directly to secure the commutation of Alice Marie Johnson, who served 21 years for a nonviolent drug offense, and has stayed in touch with the president’s son-in-law and adviser Jared Kushner -- who led the administration's push for prison reform legislation -- ever since.

Following the visit, Johnson said the women shared their stories and advocated for those who "deserve a second chance."

The three ex-prisoners Trump met were recommended to him as candidates for clemency by Johnson, who has herself gone on to become an advocate for criminal justice reform since her own commutation and has become the administration's de facto poster child on the criminal justice reform. Johnson received a standing ovation at the president's 2019 State of the Union Address and was the star of his reelection campaign Super Bowl ad last month.

The meeting also came about at her request after seeing the president at a recent White House event related to Black History Month, a person familiar with the matter said. Johnson thanked the president for granting the requested commutations at that time and asked him if she could bring the three women back to the White House with her for an in-person visit.

The three ex-prisoners who met with the president for the first time today are Tynice Hall, Judith Negron and Crystal Munoz. Ahead of Wednesday's meeting, West also posted a series of tweets about the women to bring attention to their cases.

A few prior related posts:

March 4, 2020 in Clemency and Pardons, Who Sentences | Permalink | Comments (0)

March 3, 2020

"Going Back to Jail When You Haven’t Committed a Crime: Early Findings From a Multi-State Trial"

The title of this post is the title of this new report from the Institute for Justice Research and Development (IJRD) prepared by Carrie Pettus-Davis and Stephanie Kennedy. This report is part of a series of quarterly reports designed to provide real-time results of a multistate study on prisoner reentry currently being conducted in over 100 correctional facilities and 21 urban and rural counties in 7 states.  The full report itself is a reader-friendly 17 pages, and there is also this one-pager with key takeaways.  Here are excerpts from the one-pager:

Although the general public often thinks about recidivism as individuals leaving incarceration and committing new crimes, technical violations contribute to the strikingly high rates of recidivism reported for individuals released from prisons and jails across the United States....

• Research suggests that 45% of the more than 600,000 annual state prison admissions across the nation are due to probation or parole revocations.

• While probation or parole can be revoked for committing new crimes, 26% of new prison admissions are due solely to technical violations. Unpaid fines and fees also contribute to technical violations and may lead individuals back to incarceration.

• Our goal was to explore the circumstance of re-arrest among our study participants.  At this early point in the study, data are incomplete or unavailable.

• This report examines the reasons for re-arrest provided by study participants as these data were the most complete.  They describe a range of technical violations for expected events — missing check-ins with supervising officers and violating curfew — and unexpected events – being arrested, having one’s charges dropped, and returning to jail for coming into contact with law enforcement. Though not the focus of this report, other common technical violations were related to substance use, carrying guns, and reengagement in crime. We will have more complete data on these rates in the future.

• The 35 individuals highlighted in this report were re-arrested for non-drug related, non-criminal technical violations.

• We ask stakeholders to consider whether current policy and practices are meeting the stated purpose and goals of conditional release.  Are the non-criminal behaviors described in this report reason enough to send someone to jail?  Is it worth the financial costs and associated social costs?

March 3, 2020 in Collateral consequences, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Reentry and community supervision | Permalink | Comments (0)

Connecting realities of incarceration to the outbreak of coronavirus

I have now seen a handful of notable stories connecting incarceration and coronavirus.  Here is a sampling:

UPDATE: On the afternoon of March 4, I receive via email this press release from NACDL titled "Nation’s Criminal Defense Bar Calls for Prompt Implementation of Comprehensive, Concrete, and Transparent COVID-19 Coronavirus Readiness Plans for Nation’s Prisons, Jails, and Other Detention Facilities."

March 3, 2020 in Prisons and prisoners, Sentencing around the world | Permalink | Comments (4)

Making the case for algorithms to help with criminal justice decision-making

This new Washington Post piece by a group of California professors and data scientists, headlined "In the U.S. criminal justice system, algorithms help officials make better decisions, our research finds," makes a notable case for using algorithms in criminal justice decision-making.  Here are excerpts:

Should an algorithm help make decisions about whom to release before trial, whom to release from prison on parole or who receives rehabilitative services?  They’re already informing criminal justice decisions around the United States and the world and have become the subject of heated public debate.  Many such algorithms rely on patterns from historical data to assess each person’s risk of missing their next court hearing or being convicted of a new offense.

More than 60 years of research suggests that statistical algorithms are better than unaided human judgment at predicting such outcomes.  In 2018, that body of research was questioned by a high-profile study published in the journal Science Advances, which found that humans and algorithms were about equally as good at assessing who will reoffend. But when we attempted to replicate and extend that recent study, we found something different: Algorithms were substantially better than humans when used in conditions that approximate real-world criminal justice proceedings....

Surprised by the finding, we redid and extended the Dartmouth study with about 600 participants similarly recruited online.  This past month, we published our results.  The Dartmouth findings do not hold in settings that are closer to real criminal justice situations

The problem isn’t that the Dartmouth study’s specific results are wrong. We got very similar results when we reran the study by asking our own participants to read and rate the same defendant descriptions that their researchers used. It’s that their results are limited to a narrow context. We repeated the experiment by asking our participants to read descriptions of several new sets of defendants and found that algorithms outperformed people in every case. For example, in one instance, algorithms correctly predicted which people would reoffend 71 percent of the time, while untrained recruits predicted correctly only 59 percent of the time — a 12 percentage point gap in accuracy.

This gap increased even further when we made the experiment closer to real-world conditions. After each question, the Dartmouth researchers told participants whether their prediction was correct — so we did that, too, in our initial experiments. As a result, those participants were able to immediately learn from their mistakes. But in real life, it can take months or years before criminal justice professionals discover which people have reoffended. So we redid our experiment several more times without this feedback. We found that the gap in accuracy between humans and algorithms doubled, from 12 to 24 percentage points. In other words, the gap increased when the experiment was more like what happens in the real world. In fact, in this case, where immediate feedback was no longer provided, our participants correctly rated only 47 percent of the vignettes they read — worse than simply flipping a coin.

Why was human performance so poor? Our participants significantly overestimated risk, believing that people would reoffend much more often than they actually did. In one iteration of our experiment, we explicitly and repeatedly told participants that only 29 percent of the people they were assessing ultimately reoffended, but our recruits still predicted that 48 percent would do so. In a courtroom, these “judges” might have incorrectly flagged many people as high risk who statistically posed little danger to public safety.

Humans were also worse than algorithms at exploiting additional information — something that criminal justice officials have in abundance. In yet another version of our experiment, we gave humans and algorithms detailed vignettes that included more than the five pieces of information provided about a defendant in the original Dartmouth study. The algorithms that had this additional information performed better than those that did not, but human performance did not improve.

Our results indicate that statistical algorithms can indeed outperform human predictions of whether people will commit new crimes. These findings are consistent with the findings of an extensive literature, including field studies, that show that algorithmic predictions are more accurate than those of unaided judges and correctional officers who make life-changing decisions every day.

I blogged about the prior study in this post, and here are some (of many, many) prior related posts on risk assessment tools:

March 3, 2020 in Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Soliciting ideas (and seeking new voices) for Criminal Justice panels at the AALS Annual Meeting

Cara Drinan, who is now serving as Secretary of the Association of American Law School's Criminal Justice Section, asked if I would post the following "AALS Criminal Justice Section 2021 Call for Panel Proposals."  I am very happy to do so:

On behalf of the Executive Committee of the AALS Criminal Justice Section, I invite you to submit panel abstracts for consideration for our 2021 AALS Annual Meeting program in San Francisco (Jan. 5 - Jan. 9). As in previous years, we anticipate organizing two panels, as well as a session on pedagogy.

As part of our ongoing efforts to expand the topics addressed by our section and to engage more members, we are especially interested in considering panel proposals that are innovative and include new voices.  Attached [below] is a document listing topics and speakers at recent AALS gatherings that you may wish to consider as you formulate your proposal.

To submit a proposal, please email me ( drinan @ law.edu ) a short description of the proposed panel and a list of proposed speakers. We will issue a call for participation and determine the final speakers after topics are selected.

Proposals are due by Friday, March 20.  We look forward to receiving your submissions!

Download AALS List of Past CJS Panels as of 2020

March 3, 2020 in Who Sentences | Permalink | Comments (0)

"Trump's three-track clemency process just might work"

The title of this post is the headline of this new Hill commentary authored by Mark Osler. I recommend the full piece, and here are excerpts:

Once upon a time, there was only one way to have the president consider your petition for a pardon (which mitigates the effects of a conviction) or a commutation (which shortens a sentence) — and it was terrible.  That process required that a petition go through seven levels of sequential review, mostly within the Department of Justice.  It was so inefficient and biased towards rejection that even President Obama, who seemed to have genuine concern for those in prison, granted just one commutation in his first five years in office.

Eventually, Obama got fed up and forced through over 1,700 commutations by cranking the broken machine harder and attempting to marshal an army of volunteer lawyers to advocate for petitioners.  Unfortunately, though, he did not repair or replace that machine itself, and left to his successor a process which remains in the clutches of the very body of prosecutors who sought over-long sentences in the first place.

That successor, of course, was Donald Trump. Within his first year in office he had set a template for action by pardoning Joseph Arpaio, the former sheriff in Maricopa County, Ariz.  This was the beginning of a second track for clemency within the Trump administration, one which favored right-wing heroes whose cases had been trumpeted by Fox News and Trump advisors like Alan Dershowitz and Rudy Giuliani.  That second track developed even as the official path, or first track, continued to flounder and nearly 14,000 petitions piled up in the broken system.

Most recently, that second track produced clemency for eight people on Feb. 18.... In a remarkable press release, the Trump administration actually listed the celebrity insiders who endorsed each grant... For the normally opaque field of federal clemency, that press release displayed remarkable transparency. We may be unsettled by this method of discernment, but it is consistent with the character and history of the man we elected president.

Hidden beneath those high-profile grants of mercy, though, was the emergence of a third track to clemency — one which should give hope to those of us who would like the pardon power to address the chronic over-sentencing of poor and working-class people who don’t have access to the media or celebrities.

Crystal Munoz, Tynice Hall, and Judith Negron — women who have little in common with the likes of Michael Milken — were all granted commutations from long prison terms.  According to an investigative report by the Washington Post, Trump has assembled a small group of advisors who are feeding him the cases of people like Munoz, Hall, and Negron, who were not Fox News darlings.  This could be the start of something very good.

NYU Professor Rachel Barkow and I have long advocated that the clemency process be taken out of the Department of Justice and put in the hands of a bipartisan commission that would make recommendations directly to the president.  The informal group gathered by Trump has some of the characteristics of what we have suggested, and the potential to grow into something of historic significance....

The problem with this working group, though, is that it leaves in limbo the nearly 14,000 people who followed the rules and submitted their petitions to the Pardon Attorney through the official first-track system.  These petitions sit in purgatory, ignored, even though many are for people similar to Munoz, Hall, and Negron.

The solution should be to enlarge the clemency working group and give it the resources it needs to address that backlog systemically.  Trump should sign an executive order that takes the Acting Pardon Attorney and her staff out of the Department of Justice and brings them into the White House, to report directly to the clemency working group. Meanwhile, that working group should be given official status by executive order, and allowed to continue the good work they began on Feb. 18.

President Trump did not invent discord over clemency.  But, somehow, he has created what can be a path to a better way. That path should be followed.

A few prior related posts:

March 3, 2020 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Split SCOTUS ruling concludes IRCA does not preempt state prosecution for identify theft for SSN fraud

The Supreme Court handed down a criminal law ruling this morning in Kansas v. Garcia, No. 17-834 (S. Ct. March 3, 2020) (available here), that may ultimately interest federalism fans more than sentencing fans. The majority opinion is authored by Justice Alito, and it starts this way:

Kansas law makes it a crime to commit “identity theft” or engage in fraud to obtain a benefit.  Respondents — three aliens who are not authorized to work in this country — were convicted under these provisions for fraudulently using another person’s Social Security number on state and federal tax-withholding forms that they submitted when they obtained employment.  The Supreme Court of Kansas held that a provision of the Immigration Reform and Control Act of 1986 (IRCA), 100 Stat. 3359, expressly preempts the Kansas statutes at issue insofar as they provide a basis for these prosecutions.  We reject this reading of the provision in question, as well as respondents’ alternative arguments based on implied preemption. We therefore reverse.

Justice Thomas, joined by Justice Gorscuh, concurs in an opinion that starts this way:

I agree that Kansas’ prosecutions and convictions of respondents for identity theft and making false information are not pre-empted by §101(a)(1) of the Immigration Reform and Control Act of 1986, 8 U. S. C. §1324a.  I write separately to reiterate my view that we should explicitly abandon our “purposes and objectives” pre-emption jurisprudence.

Justice Breyer filed an opinion concurring in part and dissenting in part joined by Justices Ginsburg, Sotomayor and Kagan:

I agree with the majority that nothing in the Immigration Reform and Control Act of 1986 (IRCA), 100 Stat. 3359, expressly preempts Kansas’ criminal laws as they were applied in the prosecutions at issue here. But I do not agree with the majority’s conclusion about implied preemption.

March 3, 2020 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

March 2, 2020

SCOTUS grants cert in Borden ACCA case to replace Walker case after death of petitioner

As noted in this prior post, back in November the Supreme Court granted cert in Walker v. United States to consider whether a criminal offense that can be committed with only a reckless mens rea can qualify as a "violent felony" under the Armed Career Criminal Act.  After seeing the facts in the Walker, case, which involved to possession of ammunition and not the possession of a gun, I reached out to some law professor colleagues and we filed this this SCOTUS amicus brief in US v. Walker in early January.

But Mr. Walker died in late January, and so his petition for a writ of certiorari was dismissed.  Today SCOTUS took up a replacement case, Borden v United States, which will given the Justices another chance to decide whether a crime that can be committed by being reckless can be a “violent felony” for purposes of the Armed Career Criminal Act.  Disappointingly, the Borden case involves gun possession, not just ammunition possession, so our amicus brief won't quite work for this new case.  Bummer.

In any event, though sentencing fans have to be excited about yet another ACCA case on the docket, the truly big SCOTUS cert news today concerns ACA, not ACCA.

March 2, 2020 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

New questionnaire explores what criminal justice reforms Democratic candidates would prioritize

A couple of helpful folks have made sure I did not miss this new New York Times piece that helps thicken our understanding of what leading Democratic candidates for Prez consider the most pressing of their criminal justice reform proposals. The full headline of the piece provide an ideal teaser: "Quandary for 2020 Democrats: Which Criminal Justice Changes Get Priority?: The Democratic presidential candidates are united in seeking a major overhaul of the criminal justice system, but a new questionnaire asked them to choose what they would do first." I recommend the piece in full, and here is a taste:

Justice Action Network — a bipartisan coalition of bedfellows as strange as the Center for American Progress, a liberal think tank, and Grover Norquist’s Americans for Tax Reform, a conservative group — ... asked the Democratic candidates to identify, for instance, the first criminal justice legislation they would propose, the first executive action they would take, and their top priority among several bills pending in Congress.

Five of the six remaining candidates — all but Representative Tulsi Gabbard of Hawaii — completed the questionnaire, and the Justice Action Network shared their responses with The New York Times....

The candidates all spoke about criminal justice as a matter of racial justice, and most said that was the primary reason they supported an overhaul. They argued unanimously for aggressive new policies, not small steps....

The candidates focused heavily on changes to sentencing, such as reversing harsh mandatory minimums and expanding diversion programs to keep low-level offenders out of jail. Most indicated that a top priority would be to give states financial incentives to reduce incarceration: a direct repudiation of the 1994 crime bill, which gave incentives to increase incarceration....

Criminal justice has become a rare point of bipartisan consensus in recent years, leading to the passage in 2018 of the First Step Act, which expanded early-release programs, increased job training and changed mandatory minimums for nonviolent drug offenses. And that bill, a breakthrough at the time, has now become a floor.

The First Step Act “is now the marker of what a conservative reform is,” said Inimai M. Chettiar, legislative and policy director at the Justice Action Network. “So you see all of these candidates going way beyond that.”

Because most of the candidates support similarly expansive suites of policies, the survey pushed them to do something few politicians want to do: to grapple with the reality that presidents rarely pass an entire agenda in one fell swoop, and to identify the specific components of their plans that they believe will make the biggest difference.

Mr. Sanders and Ms. Warren said their first executive actions on criminal justice would be to end the federal use of private prisons, while Mr. Biden and Mr. Bloomberg said theirs would be to repeal directives from former Attorney General Jeff Sessions that require federal prosecutors to seek the harshest possible penalties.

Asked for their top priority among several bipartisan bills now in Congress, Mr. Biden and Mr. Bloomberg chose the REAL Act, which would let prisoners receive Pell grants for higher education. Ms. Warren’s priority was the Smarter Sentencing Act, which would reduce mandatory minimums for drug possession, while Ms. Klobuchar chose the For the People Act, which would restore voting rights for former prisoners.

March 2, 2020 in Campaign 2020 and sentencing issues, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (0)

March 1, 2020

"The Criminal History of Federal Economic Crime Offenders"

The title of this post is the title of this new report released late last week by the US Sentencing Commission.  Here is a basic summary and key findings from this USSC webpage:

Summary

For the first time, this report provides in-depth criminal history information about federal economic crime offenders, combining the most recently available data from two United States Sentencing Commission projects.

Key Findings
  • The application of guideline criminal history provisions differed among the different types of economic crime offenders.
  • The extent of prior convictions differed among the different types of economic crime offenders.
    • About half of all federal economic crime offenders had at least one prior conviction in their criminal history.
    • Prior convictions were most common among counterfeit and forgery (71.1%), identity theft (70.4%), credit card fraud (68.7%), and financial institution fraud (68.6%) offenders.
    • Prior convictions were least common among computer-related (29.6%) and government procurement (25.4%) fraud offenders.
  • Federal economic crime offenders did not “specialize” in economic crime.
    • Convictions for prior economic offenses were not the predominant types of prior convictions. 
    • Fourteen percent of federal economic crime offenders had convictions for prior economic offenses only, to the exclusion of other types of convictions. 
    • Convictions for prior “other” offenses, such as DUI and public order, were the predominant types of prior convictions.
  • The severity of criminal history differed for offenders in the specific types of economic crime.
    • Financial institution fraud, credit card fraud, identity theft, mail-related fraud, and counterfeit and forgery offenders had relatively serious criminal histories compared to other economic crime offenders.
    • Government procurement and computer-related fraud offenders had comparatively less serious criminal histories compared to other economic crime offenders.
  • Only about one-quarter of federal economic crime offenders with prior convictions were not assigned criminal history points under the guidelines.

March 1, 2020 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Offense Characteristics, White-collar sentencing | Permalink | Comments (0)

Another timely reminder of NY Gov Cuomo ugly clemency record

This recent New York Daily News piece, headlined "Cuomo, miserly on clemencies: Thousands of elderly New Yorkers who pose no risk are locked in state prison," provides another reminder that New York's Gov continues to fail to lead on the clemency front after having talked big in the past.  Here are excerpts:

President Trump’s recent announcement of clemency for a handful of white-collar offenders was a reminder that proudly progressive New York shows much less mercy than the Trump administration to people on the wrong side of the law.

“Donald Trump commuted the sentences of four people in federal prison; representing more commutations than Gov. Cuomo has issued in 2019 and 2020 combined,” said a statement from the advocacy group Release Aging People in Prison. “With more than 9,000 New Yorkers in prison serving life sentences and over 10,000 incarcerated older adults languishing behind bars, there is ample opportunity for Cuomo to do the right thing.”

As the state Legislature heads into the thick of the annual bargaining over funding various programs, lawmakers should press Cuomo to save taxpayer money — and also make a statement of New York values — by granting clemency to more than a tiny handful of state prisoners and taking steps to release sick, aging prisoners who post no threat to public safety.

Right now, nearly 20% of the approximately 46,000 people in New York prisons are serving life sentences.  Many are getting old and sick, needing medical care. Health-care spending on the most seriously ill elderly inmates can exceed $130,000 per patient, according to a 2015 report by the Center for Justice at Columbia.

A lot of these prisoners, mostly men, were convicted of horrific, violent crimes decades ago.  Everything we know about violent crime — including records stretching back to the 1920s — confirms that senior citizens who have been locked away for 20 or 30 years are extremely unlikely to commit additional offenses. So why are we paying top dollar for the increasingly expensive medical care and incarceration of elderly people?...

Better yet, the Legislature should pass the Elder Parole Act, which died in committee last session.  The bill would allow prisoners over 55 — who have served at least 15 years behind bars — to go before the state parole board and argue for their release....

Our state has allegedly eliminated the death penalty, yet we have effectively sentenced people to death by incarceration.  New York’s governor boasts of being progressive, but is showing less mercy than Donald Trump.  And at a time when we face a multi-billion-dollar deficit, New York continues to lock up reformed and rehabilitated people in the name of vengeance.  Surely we can do better.

Prior related posts:

March 1, 2020 in Sentences Reconsidered, Who Sentences | Permalink | Comments (0)