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January 10, 2020

"The Trouble with Crime Statistics: It’s surprisingly hard to say what makes crime go up or down"

The title of this post is the title of this extended New Yorker piece authored by Matthew Hutson. I recommend the full piece, and here is an excerpt:

Given the high stakes of the question, it’s tempting to take sides: either legalizing pot leads to more crime or it doesn’t.  And yet the truth may be unknowable.  “We do not have a good mechanism in place for tracking why a person commits crime,” Timothy Tannenbaum, a sheriff’s lieutenant in Washington County, Oregon, told me.  “I’m not sure most of the data you seek is available.”  In an e-mail, the spokesman for Sheriff Joseph McDonald, of Plymouth, Massachusetts, cautioned that “it’s often hard to identify marijuana as either the cause or the deterrent for criminal conduct.” I brought all these responses to David Weisburd, a criminologist at George Mason University. “The sheriffs raise an important question,” Weisburd said.  In his view, marijuana’s effects on crime are likely to remain hazy; in fact, the effect of pretty much anything on crime is rarely crystal clear.

Certainly, we know a few things about what causes and prevents crime.  The “Handbook of Crime Correlates,” from 2009, a reference book compiled by three criminologists, lists more than a hundred demographic, economic, relational, institutional, cognitive, and biological risk factors; in aggregate, they suggest that young men in hard times find trouble.  A 2015 report from the Brennan Center for Justice identifies a dozen plausible explanations for the major decline in crime that unfolded across America from 1990 to 2010 — among them, more police officers, a decline in alcohol consumption, a stronger economy, and the adoption of CompStat, a statistics-based approach to managing police departments, pioneered by the N.Y.P.D.  But each of these factors can explain only a few per cent of the broader change.  After analyzing a hundred and sixty-nine criminology studies published from 1968 to 2005, Weisburd found that, on average, each study — despite combining many variables — could explain only a third of a given change in crime.  A 2018 report in the Annual Review of Criminology concluded that the findings in one out of ten crime studies couldn’t be replicated, and that another fifteen per cent were only partially replicable.

“The world is complicated,” Weisburd said.  Many people are sure that they know how to reduce crime.  They urge the adoption or repeal of laws based on that conviction.  But crime and crime statistics are more mysterious than they seem.

January 10, 2020 in National and State Crime Data | Permalink | Comments (1)

Reviewing uncertainty still surrounding earned-time credits created by the FIRST STEP Act

Alan Ellis, Mark Allenbaugh, and Nellie Torres Klein have this new Bloomberg Law piece headlined "The First Step Act — Earned Time Credits on the Horizon." The piece is an important reminder that, even a full year after the enactment of the FIRST STEP Act, there is still uncertainty surrounding the operation of one of the biggest part of the legislation.  Here are excerpts:

One of the remaining programs to be implemented under the First Step Act is set to begin shortly, enabling some prisoners to earn time credits. But some impediments still exist. As of January, all inmates in the Bureau of Prisons (BOP) custody will have undergone an initial assessment pursuant to implementing a new risk and needs assessment program pursuant to the First Step Act.

By January 2022, it is anticipated the BOP will begin providing all eligible inmates recidivism reduction programming based on their identified needs.  As an incentive for participating in such programming, the First Step Act directs that eligible inmates be able to earn time credits which, while not expressly reducing their sentence, under some circumstances can be used toward increasing pre-release custody (e.g., halfway house and/or home confinement).  The BOP has stated it will post available programming opportunities on its website soon....

In theory, these time credits can then be redeemed by eligible inmates for early transfer into a halfway house, home confinement, or supervised release.  Earned time credits thus do not reduce a prisoner’s sentence, per se, but rather allow eligible prisoners to serve their sentence outside prison walls.

Importantly, potentially large categories of inmates will not be eligible to receive earned time credits based on the crime they committed.  Additionally, non-citizens with immigration detainers will not be able to benefit.... Offenders who complete rehabilitative programs serving sentences for offenses not eligible to receive earned time credits are nonetheless eligible for other incentives including increased telephone and email time, expanded visitation and more options at the commissary.  Incentives for privileges will be decided by individual wardens at each institution.

The current limits on time in a halfway house (up to 12 months) and home confinement (six months or 10% of the sentence, whichever is less) will not apply to earned time credits.  Thus, a person can be released to a halfway house and/or home confinement even earlier, meaning, inmates can spend more than 12 months in a halfway house or more than ten percent of their sentence in home confinement after accumulating earned time credits....

If properly implemented, this aspect of the First Step Act could not only significantly lower the number of inmates in an already over-crowded and under-staffed system, but actually reduce recidivism and thereby provide important insights to criminal justice professionals and legislators on best practices for keeping people out of prison.  As of now, no one can earn time credits for completing the program or productive activities until the DOJ completes and releases PATTERN, and the BOP creates or expands existing evidence-based programming or productive activity.  As a result, earned time credits received prior to the implementation of the Risk Assessment Tool will not be eligible for redemption until the Tool is implemented.

Unfortunately, the ability to start earning credits may not actually come for most prisoners until even later than that, depending on how long it takes the BOP to apply PATTERN and create programming and productive activities and assign prisoners to them.  PATTERN was the subject of a House Judiciary Committee Oversight Hearing where some experts expressed concern about its “racial bias and lack of transparency, fairness, and scientific validity.” 

The DOJ has been somewhat circumspect as to how close PATTERN is to being finalized, stating only that it “is currently undergoing fine-tuning.”  Nonetheless, indications are that inmates will begin being scored under a preliminary version soon.

Another potential impediment to full implementation will be the availability of half-way house beds.  In certain parts of the country, there is a shortage of available half-way house beds for federal inmates.  The act did not mention any additional funding or resources for the BOP to implement this program.  This obviously could potentially delay or otherwise limit the implementation of other aspects of the program.  Congress’ intent under the First Step Act is well-intentioned, but without adequate funding, it may not benefit qualifying inmates it was designed to serve.

January 10, 2020 in FIRST STEP Act and its implementation, Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (1)

January 9, 2020

"Should Judges Have to Weigh the Price Tag of Sending Someone to Prison?"

The title of this post is the title of this new Mother Jones piece with this subheadline: "A handful of reformist DAs think so. But they’re meeting plenty of resistance."  Here is the start of a long piece (with good links) that merits a full read:

There’s one trial that Buta Biberaj will never forget. Biberaj, a former defense attorney, remembers how Virginia jurors in 2017 requested 132 years of prison for a man who stole car tires.  The jurors may have been unaware that taxpayers could pay more than $25,000 a year to keep someone incarcerated — so by proposing their sentence, they were also suggesting that society fork over $3 million. For tires.

Last week, Biberaj started her term as district attorney in Virginia’s Loudoun County. As part of a wave of progressive candidates that swept district attorney elections in Virginia in November, Biberaj is calling for changes that reformers elsewhere have championed, like ending cash bail and letting marijuana crimes go.  But she’s also touting a proposal that goes a step beyond what most liberal district attorneys have floated: She wants courts to grapple with the financial toll of incarcerating people.

Normally, if someone commits a felony like rape or murder, a prosecutor from a district attorney’s office tells a jury or judge why the victim deserves to see the offender locked away.  Prosecutors are often evaluated by the number of convictions they receive and the types of lengthy sentences they secure, with some touting their toughness to win reelection.

Biberaj, during her 25-plus years as a defense lawyer and more than a decade as a substitute judge, came to believe that the sentencing process is flawed. So now as district attorney, she wants her office to tell juries exactly how expensive it is to send people to prison.  “If we don’t give them all the information, in a certain way we are misleading and lying to the community as to what the cost is,” she said in an interview before the election.

Biberaj is not the first prosecutor to suggest such a policy.  In 2018, Philadelphia District Attorney Larry Krasner, one of the country’s most famous progressive prosecutors, launched a similar experiment.  Shortly after his election, he instructed his office’s attorneys to tell judges how much recommended prison sentences would cost, noting that a year of unnecessary incarceration in the state rang in at about $42,000—around the salary of a new teacher, police officer, or social worker.  “You may use these comparisons on the record,” he told them. Chesa Boudin, the former public defender elected as district attorney in San Francisco in November, says he plans to implement a similar policy after taking office this week....

But so far, other than Biberaj and Boudin, the idea hasn’t caught on widely.  While more progressives are running, about 80 percent of prosecutors go unopposed in elections, meaning that many tough-on-crime district attorneys maintain their seats.

And some judges don’t want to know how much a prison term will cost. They argue that money has no place in decisions about punishment and justice.  Choosing a sentence, they say, should involve weighing the specific situation and needs of the offender and victim, irrespective of budget. And if elected judges feel pressure to save money for taxpayers, it could skew their opinions, argues Chad Flanders, a professor at Saint Louis University School of Law.  “Asking judges to make budgetary decisions in sentencing is just another way of asking them to be politicians,” he wrote in a paper on the subject in 2012.  Some judges in Philadelphia have asked Krasner’s attorneys not to share the cost data with them.

January 9, 2020 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (5)

Lots of items of capital interest at Death Penalty Information Center

I frequent the Death Penalty Information Center website on a regular basis for all sorts of data and other detailed information about the administration of the death penalty in the modern era. But the site also keeps up with some capital punishment news and research (with DPIC's abolitionist bent), and the last few weeks have had a number of notable new postings. Here is a sampling that seemed worth flagging here:

"Louisiana Reaches Ten Years Without an Execution"

"Criticism by Government Leaders, Victim’s Son Fuel Growing Doubts About Viability of Ohio’s Death Penalty"

"Death Sentences Decline by More than Half in Decade of the 2010s"

"Report Addresses Death-Row Family Members’ Barriers to Mental Health Care"

"Law Review: New Article Highlights Decline of Judicial Death Sentences"

"Controversial Mississippi Prosecutor Recuses Himself from Further Involvement in Curtis Flowers’ Case"

January 9, 2020 in Data on sentencing, Death Penalty Reforms, Who Sentences | Permalink | Comments (1)

January 8, 2020

Might the 2020 campaign bring back "law and order" as a political wedge issue?

The question in the title of this post is prompted by this extended new New York Times opinion piece authored by Thomas Edsall. The piece's full headline captures its main point: "Trump Wants Law and Order Front and Center; The president and his allies are trying to make Democratic plans to reform law enforcement a potent campaign issue." The piece merits a full read, and here are excerpts:

Unexpectedly, the 2020 presidential campaign is drilling down on petty crime and homelessness.  Donald Trump and his Republican allies are reviving law-and-order themes similar to those used effectively by Richard Nixon and Spiro Agnew in the late 1960s and early 1970s to demonize racial minorities.

To this end, Republicans seek to discredit liberalized law enforcement initiatives adopted by a new breed of Democratic prosecutors.  These Democratic district attorneys — in cities, counties and suburbs from Philadelphia, Orlando, Chicago and St. Louis to Contra Costa County, Calif., Suffolk County, Mass., and Durham County, N.C. — are pursuing policies intended to decriminalize vagrancy, and eliminate cash bail, and they are aggressively pursuing charges in cases of shootings by police officers.

They are playing a key role in a hotly politicized movement to curb mass incarceration and to roll back what has become known as “the carceral state.”  The decarceration movement is backed by a wide array of organizations tightly aligned with the progressive wing of the Democratic Party: the Real Justice PAC, Black Lives Matter, the Brennan Center for Justice, the ACLU, Justice Democrats, MoveOn.org and Brand New Congress....

At the same time, as this movement has been gaining momentum, it has provided ammunition for a powerful counterattack from President Trump, his attorney general, William Barr, and other law-and-order Republicans.

The result is that the 2020 election is expanding the 50-year-old culture war into new territory as Democrats — often under pressure from younger voters — seek to extend broader rights to those who have been previously stigmatized or marginalized, now moving beyond protection for minorities, women and gays, to provide more freedom to criminal defendants, the homeless, the mentally ill and unknown numbers of men and women imprisoned through prosecutorial misconduct, judicial error or other forms of systemic failure.

Republicans, in turn, are betting that the Democratic presidential candidates have moved substantially farther to the left on issues of crime and punishment than the voting public. Leading Democratic presidential candidates, for their part, are not shying away from the challenge, endorsing in whole or in part the decarceration and decriminalization agenda.

Even Joe Biden, one of the more moderate 2020 candidates, argued at the September Democratic presidential debate that “We should be talking about rehabilitation. Nobody should be in jail for a nonviolent crime” and that “Nobody should be in jail for a drug problem. We build more rehabilitation centers, not prisons.” Once a strong supporter of the death penalty, Biden now calls for its elimination....

While many of the Democratic presidential candidates have effectively joined the decarceration movement, the same unity cannot be found among House and Senate Democrats. At this level, the movement is one more source of conflict between the Alexandria Ocasio-Cortez wing and the many members of the House and Senate who must fight for re-election in more moderate districts and states, including those that cast majorities for Trump in 2016....

Republicans are responding to the initiatives of progressive prosecutors with a vengeance. In a fiery speech on Aug. 12 at the Grand Lodge Fraternal Order of Police’s conference in New Orleans, Barr warned that progressive prosecutors in cities across the nation are “demoralizing to law enforcement and dangerous to public safety.”...

Three days later, William M. McSwain, the Trump-appointed United States Attorney for the Eastern District of Pennsylvania, called a news conference to explicitly attack the Philadelphia district attorney, Larry Krasner.... Most recently, President Trump, at a rally on Dec. 10 in Hershey, Pa., told the crowd “You have the worst district attorney,” referring to the Philadelphia D.A., roughly 95 miles east. “I’ve been hearing about this guy, he lets killers out almost immediately. You better get yourself a new prosecutor.”

Turning the decarceration movement into a 2020 campaign issue fits into Trump’s go-to strategy of inflaming divisive conflicts, especially those involving disputed rights — particularly those benefiting minorities — in order to activate racial resentment, to mobilize his core voters and to goad swing voters into lining up against the Democratic Party....

Over the past four years, many progressive Democrats have turned sharply against the aggressive policing that broken windows enforcement produced, arguing that it has contributed to excessive incarceration that results in the disproportionate imprisonment of African-Americans and other minorities.  At the presidential debate in September, virtually every candidate voiced strong opposition to mass incarceration and support for the release or sentence reduction of those convicted of nonviolent crime....

On this issue, one of Trump’s key allies is Tucker Carlson.  Every night this week, Carlson is devoting segments of his Fox News show to homelessness. His show will reinforce the 2020 Republican election theme that Democrats are fostering endemic social disorder.  On Jan. 3, Carlson tweeted: “Drugs.  Homelessness.  Third world inequality.  San Francisco’s radical left wing government has turned their city into an American Dystopia.”

This week’s series is the second time in less than a year that Carlson has devoted five straight nights to homelessness, with footage of men and women injecting themselves, evidence of public defecation, the vagrant mentally ill, and sidewalks in California lined for blocks with tents....

The Trump campaign is gambling that Democrats are outside the mainstream of public opinion on these issues, while the leading Democratic candidates are convinced that enough of the electorate has become sufficiently skeptical of law-and-order strategies — and the accompanying racial undertones (and overtones) — to produce a Democratic victory on Nov. 3, 2020.  Over the past 50 years, Democratic strategies based on the presumption of increasing liberalism among voters at large have rarely succeeded. Perhaps 2020 will be different.

January 8, 2020 in Campaign 2020 and sentencing issues, Criminal justice in the Trump Administration, Elections and sentencing issues in political debates | Permalink | Comments (1)

A notable judicial pitch for better sentencing data in the Buckeye State

In this post yesterday, I noted a recent commentary discussing the role of Ohio's Chief Justice in advocating against certain state sentencing reform.  Today I can spotlight another kind of sentencing reform advocacy by two different Ohio jurists, Justice Michael Donnelly and 8th Ohio District Court of Appeals Judge Ray Headen, which appears in this new cleveland.com opinion piece headlined "Create centralized criminal-sentencing database to reduce mass incarceration in Ohio."  Here are excerpts:

As two members of our state’s judiciary, we write to include our names in support along with the Ohio Criminal Sentencing Commission for the creation of a centralized criminal database and repository to track all criminal sentences in Ohio.  The commission has stated that criminal justice data in Ohio “is disparate, mismatched, and complex, and lacks the capacity to fully and completely narrate the comprehensive criminal justice story in Ohio.”

With a sentencing database, the Ohio General Assembly would be arming judges, prosecutors, defense attorneys, and Ohio’s citizens with information that is currently unavailable to them, and that would make the administration of justice more fair, equitable, and most importantly, transparent.  Without this information, many criminal defendants will continue to believe that whether they receive a five-year or a 20-year sentence is largely determined by which judge is assigned to their case at arraignment, rather than the actual record of their case....

A sentencing database and repository developed and maintained by the Ohio Criminal Sentencing Commission -- among data-gathering reforms the 19-year-old commission recommended a year ago -- would provide all stakeholders and appellate courts charged with reviewing sentences with the ability to ensure that criminal sentences are consistent with what our General Assembly has indicated are the overall purposes and principles of felony sentencing, as embodied in Ohio Revised Code 2929.11 and 2929.12. Those purposes and principles are to punish the offender, protect the community, set the offender on a course towards rehabilitation, and use the least amount of state resources necessary to achieve these goals. Uniformity and proportionality of sentences are essential to maintaining the public’s confidence in our courts.

We agree with the Ohio Criminal Sentencing Commission’s view that policymakers and enforcers must be able to access comprehensive criminal justice information to maximize public safety and develop effective policies.  A criminal sentencing database and repository will help reduce mass incarceration and will be an investment in a safer, fairer, and more cost-efficient justice system.

January 8, 2020 in Data on sentencing, Detailed sentencing data, Who Sentences | Permalink | Comments (0)

January 7, 2020

Federal prosecutors, now soured on Michael Flynn, note that "similarly situated defendants have received terms of imprisonment"

As reported in this Washington Post piece, "Federal prosecutors Tuesday recommended that former national security adviser Michael Flynn serve up to six months in prison, reversing their earlier recommendation of probation after his attacks against the FBI and Justice Department." Here is more on the latest filing by prosecutors:

The government revoked its request for leniency weeks after Flynn’s sentencing judge categorically rejected Flynn’s claims of prosecutorial misconduct and that he had been duped into pleading guilty to lying to FBI agents about his Russian contacts after the 2016 U.S. election. “In light of the complete record . . . the government no longer deems the defendant’s assistance ‘substantial,’ ” prosecutor Brandon Van Grack wrote in a 33-page court filing.  He added, “It is clear that the defendant has not learned his lesson. He has behaved as though the law does not apply to him, and as if there are no consequences for his actions.”

Flynn faces sentencing Jan. 28 before U.S. District Judge Emmet G. Sullivan in Washington. Flynn defense attorney Sidney Powell is scheduled to file his sentencing request Jan. 22.

The request marked the latest twist in the legal saga of the former Army lieutenant general and adviser to President Trump, whose rocky path after his candidate won the White House included serving the shortest tenure of a national security adviser on record — just 24 days — before resigning in February 2017. He then became a key witness in a probe into the administration, before breaking with the prosecutors who had credited him with helping them.

Flynn’s change of heart came after the end of special counsel Robert S. Mueller III’s probe of Russian election interference. Some Trump allies at that time pushed the president to pardon figures in the probe, particularly Flynn. A potential prison term could renew such calls.

Flynn, 61, pleaded guilty Dec. 1, 2017, to lying about his communications with then-Russian Ambassador Sergey Kislyak during the presidential transition, becoming the highest-ranking Trump official charged and one of the first to cooperate with Mueller’s office.

Flynn faces up to a five-year prison term under the charge, which included his misrepresentation of work advancing the interests of the Turkish government. However, ahead of Flynn’s initially scheduled sentencing in December 2018, prosecutors said he deserved probation for his “substantial assistance” in several ongoing investigations. In a November 2018 filing, Mueller wrote that Flynn’s guilty plea “likely affected the decisions of related firsthand witnesses to be forthcoming . . . and cooperate.” The special counsel noted Flynn’s “early cooperation was particularly valuable because he was one of the few people with long-term and firsthand insight regarding events and issues under investigation.”...

This year Flynn switched defense lawyers, and his new team asked Sullivan to find prosecutors in contempt, alleging Flynn had been entrapped into pleading guilty and prosecutors wrongfully withheld evidence. Flynn also broke with prosecutors in the July federal trial of his former business partner Bijan Rafiekian, on charges of illegally lobbying for Turkey. Flynn was set to be the star witness against Rafiekian. He told a grand jury he and Rafiekian campaigned “on behalf of elements within the Turkish government,” a project that included an op-ed under Flynn’s name on Election Day in 2016. But just before the trial, Flynn claimed prosecutors wanted him to lie. A jury convicted Rafiekian without Flynn’s testimony, but a judge threw out those convictions in part because he found “insufficient” evidence of a conspiracy between the two men or of the Turkish government’s role....

In withdrawing their request for leniency, Flynn’s prosecutors highlighted his hindrance of Rafiekian’s prosecution, the only cooperation they had initially deemed “substantial.” The government recommended zero to six months of incarceration for Flynn, citing “the serious nature of the defendant’s offense, his apparent failure to accept responsibility, his failure to complete his cooperation in — and his affirmative efforts to undermine — the prosecution of Bijan Rafiekian.”

Prosecutors backed their claim Tuesday by filing dozens of pages detailing Flynn and his lobbying firm’s misconduct, including grand-jury transcripts and FBI interview reports. Overall, prosecutors said Flynn participated in 19 interviews with federal prosecutors and turned over documents and communications. The substance of his cooperation was initially hidden, but most has come out in Mueller’s final report, subsequent trials or public records released as a result of lawsuits filed by news organizations.

The Government's 33-page "supplemental memorandum in aid of sentencing" in US v. Flynn is available at this link and makes for quite an interesting read. Lots of headlines concerning the filing suggest that the feds are seeking a prison term for Flynn and one as long as six months.  But the final phrase of the submission's introduction simply states that "the government recommends that the court sentence the defendant within the applicable Guidelines range of 0 to 6 months of incarceration."  A sentence of zero months for Flynn would technically be within the applicable guideline range and comply with the government's recommendation.  Highlighting the nuance of the Government's work here, consider the final section of the submission, which start and ends this way:

The factors enunciated in Section 3553(a) all favor the imposition of a sentence within the Guidelines range.  The defendant’s offense is serious, his characteristics and history present aggravating circumstances, and a sentence reflecting those factors is necessary to deter future criminal conduct.  Similarly situated defendants have received terms of imprisonment....

In the above cases, a term of imprisonment was imposed.  The government acknowledges that the defendant’s history of military service, and his prior assistance to the government, though not substantial, may distinguish him from these other defendants.  The government asks the Court to consider all of these factors, and to impose an appropriate sentence within the Guidelines range.

Prior related posts (all from over one year ago):

January 7, 2020 in Celebrity sentencings, White-collar sentencing, Who Sentences | Permalink | Comments (1)

"Why Is the Chief Justice of Ohio's Supreme Court Lobbying Against Sentencing Reforms?"

The question in the title of this post is the headline of this Reason commentary from a few weeks ago that I just came across today. Here are excerpts from a piece worth reading in full:

Ohio lawmakers trying to pass sentencing reforms have faced opposition this year from the usual suspects, such as lobbyists for prosecutors and law enforcement. But they've also run into vocal criticism from an unexpected source: Ohio Supreme Court Chief Justice Maureen O'Connor.

It is unusual — and it may damage the objectivity and independence of the court system — for sitting Supreme Court justices to lobby for or against legislation.  But that hasn't stopped O'Connor from jumping into the middle of the legislature's deliberations over a pair of criminal justice reform proposals. In newspaper op-eds, public appearances, and letters to members of the state Senate, O'Connor, who happens to be a former prosecutor and lobbyist, has repeatedly argued against a bill that would downgrade some felony drug possession charges to misdemeanor offenses.

O'Connor, of course, has a First Amendment right to speak about legislation and to criticize the legislative process if she wants.  But she seems to recognize the unusual nature of her advocacy. "You may think it unprecedented to receive a letter from me, as Chief Justice, that addresses my concerns about [Senate Bill 3]," O'Connor wrote in a December 3 missive to state legislators, a copy of which was obtained by Reason.  But, she adds, it is "my duty" to speak out about issues that "affect the administration of criminal justice and the operation of Ohio's courts."...

Sen. John Eklund (R–Munson), the sponsor of the bill in question and one of the recipients of O'Connor's letter, agrees that it's unusual to get a letter from a sitting Supreme Court justice advocating against a specific piece of legislation. Eklund's bill is one of two major criminal justice reform measures that have been jockeying for legislators' support in Columbus this year. He says says it's rooted in the idea that people deserve a chance to prove they can learn from past mistakes. "We want people to get better and move on to lead productive lives, while also ensuring that traffickers are arrested and stay behind bars," he explains....

At the same time that she's been lobbying against Senate Bill 3, O'Connor has been pushing the legislature to approve the other criminal justice bill it was considering this year: House Bill 1.  In her December 3 letter, O'Connor highlights the House bill's support from law enforcement groups — she specifically name-checks the Ohio Prosecuting Attorneys Association — as a reason to prefer it to the Senate proposal.

The House bill also seeks to shunt some drug offenders into treatment programs, but it does not reclassify some drug felonies as misdemeanors. O'Connor and others claim that the cudgel of a felony charge is necessary to get offenders into treatment. "Downgrading the underlying offenses will only reduce one of these incentives and the likelihood of a lasting recovery," the chief justice wrote in a September 19 letter to Eklund.

There's no law or rule that says judges can't lobby for legislation. Indeed, Jonas Anderson, a professor of law at American University who has written about judicial ethics and lobbying, points out that there are times when judicial input can offer important information to legislators, particularly when they can provide technical information about the workings or needs of the justice system.

But judges should be careful about crossing the line into pushing or opposing specific policies, he adds. "We think of the judicial system as a place where you can get a decision about a dispute that's free from political considerations," says Anderson.

In lobbying against Senate Bill 3, O'Connor has indeed made some technical arguments about how the court system would operate under the new sentencing guidelines proposed by the law.  But her objections are overwhelmingly directed at the underlying policy....

After a career defined by criss-crossing the dividing lines between branches of government — and by advocating for tougher criminal justice legislation both from inside the executive branch and as an outside lobbyist — O'Connor apparently thinks it appropriate to tell state lawmakers what to do.  Indeed, this is not the first time she's tried to stamp out sentencing reforms.  In 2018, she penned op-eds telling voters to oppose a ballot measure that would have reduced drug possession penalties in order to keep low-level nonviolent offenders out of the prison system.  Passage of the measure would be "catastrophic" for Ohio, she wrote.  Not exactly the sort of dispassionate analysis one would hope to read from the head of the state's highest court.  Voters listened, and they defeated that proposal at the ballot box last year....

By using her authority as the state's top jurist to parrot talking points from prosecutors and law enforcement lobbyists, O'Connor may yet succeed in stomping criminal justice reform efforts, but she also undermines her own credibility and that of the state's court system.  The legitimacy of the judiciary survives largely because the system is perceived to be separate from the political machinations that go on within a legislature.  O'Connor's willingness to use her judicial position to help shape policy should make Ohioans wonder about her ability to be an objective arbiter.  "Judges shouldn't be muzzled," says Anderson, "but lobbying as a judge — not as an individual, but as a judge — risks the independence and objectivity of the judicial branch."

January 7, 2020 in Drug Offense Sentencing, Who Sentences | Permalink | Comments (0)

January 6, 2020

"Killer High: A History of War in Six Drugs"

The title of this post is the title of this interesting looking new book authored by Peter Andreas.  Here is the book's description from the publisher's website: 

There is growing alarm over how drugs empower terrorists, insurgents, militias, and gangs.  But by looking back not just years and decades but centuries, Peter Andreas reveals that the drugs-conflict nexus is actually an old story, and that powerful states have been its biggest beneficiaries.

In his path-breaking Killer High, Andreas shows how six psychoactive drugs-ranging from old to relatively new, mild to potent, licit to illicit, natural to synthetic-have proven to be particularly important war ingredients.  This sweeping history tells the story of war from antiquity to the modern age through the lens of alcohol, tobacco, caffeine, opium, amphetamines, and cocaine.  Beer and wine drenched ancient and medieval battlefields, and the distilling revolution lubricated the conquest and ethnic cleansing of the New World.  Tobacco became globalized through soldiering, with soldiers hooked on smoking and governments hooked on taxing it.  Caffeine and opium fueled imperial expansion and warfare.  The commercialization of amphetamines in the twentieth century energized soldiers to fight harder, longer, and faster, while cocaine stimulated an increasingly militarized drug war that produced casualty numbers surpassing most civil wars.

As Andreas demonstrates, armed conflict has become progressively more drugged with the introduction, mass production, and global spread of mind-altering substances.  As a result, we cannot understand the history of war without including drugs, and we similarly cannot understand the history of drugs without including war.  From ancient brews and battles to meth and modern warfare, drugs and war have grown up together and become addicted to each other.

January 6, 2020 in Drug Offense Sentencing, Recommended reading | Permalink | Comments (1)

January 5, 2020

Noting the discouraging connection between criminal justice involvement and overdose deaths

This recent Connecticut Mirror piece, headlined "From prison to the grave: Former inmates now account for more than half of all drug overdose deaths in Connecticut," spotlights the disconcerting link between involvement with the criminal justice system and overdose deaths:

Accidental drug overdose deaths tripled in Connecticut between 2010 and 2018, with the proportion of overdose victims with prior involvement in the criminal justice system slowly increasing during that time.

Former inmates account for more than half of the people who died from drug overdoses between 2016 and 2018, according to an analysis of new state data. In 2015, this same group made up 44% of the people who died from an overdose.

Officials with the Office of Policy and Management’s Criminal Justice Policy and Planning Division discovered the uptick in drug deaths among former inmates when examining data from the Office of the Chief Medical Examiner and the Department of Correction.

While the data shows an overlap between criminal justice involvement and overdose deaths, many details are still missing.  While officials believe the majority of the overdose deaths are from fentanyl, for example, OPM did not specify this in its analysis.  There has been a dramatic increase in fentanyl-related deaths statewide over the past half-decade, according to the Office of the Chief Medical Examiner.  Of 1,017 opioid deaths last year, 75% involved fentanyl. In 2012, fentanyl deaths accounted for 4% of the total.

There are other unanswered questions, as well. “We don’t know whether they were admitted pretrial or served a sentence,” said Marc Pelka, Gov. Ned Lamont’s undersecretary of criminal justice policy and planning. “We don’t know how soon after their release they experienced an accidental drug overdose death.”

Pelka said his office likely would do a deeper dive into the data to learn more about the intersection between arrests and overdose fatalities.  Even without that detail, however, the data is startling, officials said.  “I hope that this whole commission really understands what this shows. Because I’m seeing this come across my desk every day,” Department of Correction Commissioner Rollin Cook told his colleagues on the Criminal Justice Policy Advisory Commission during a recent presentation on the data.  Cook said one of his jobs is to sign off on investigations into overdose deaths of people who have been released from prison but are still under state supervision.

Those reports, Cook said, often show the overdose victims were attending recovery programs and adhering to the terms of their parole.  “They’re doing everything they’re supposed to do,” he said. “Yet we’re still losing them. They’re dying.”

People released from prison are at greater risk of certain early deaths compared to the general population.  Research shows people who get out of prison are 40 times more likely to die of an opioid overdose within two weeks of their release than those who haven’t spent time behind bars.  In Connecticut, white ex-prisoners are more likely to die from drug overdoses, while black former inmates are more likely to die by homicide....

The overlap between criminal justice system involvement and addiction makes sense to Louis Reed, an organizer for the national criminal justice reform group Cut 50.  Criminal records function as scarlet letters, making it hard for people to secure housing or land jobs even after their sentences have ended. “The moment they get a door slammed in their face they most likely are going to go right back to what it is they felt was more comfortable to them,” Reed explained.  Using drugs after a long period of sobriety while incarcerated also poses problems, said Reed. Tolerances decrease when people don’t use for a while.  That puts them at risk of an accidental overdose because their first hit “shocks their system.”

January 5, 2020 in Offender Characteristics, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (1)

Notable reform perspectives via Brennan Center

Over at the Brennan Center for Justice are these two notable new criminal justice reform pieces:

January 5, 2020 in Mandatory minimum sentencing statutes, Recommended reading | Permalink | Comments (0)