« July 26, 2020 - August 1, 2020 | Main | August 9, 2020 - August 15, 2020 »

August 8, 2020

Making sure not to look past or become numb to persistently ugly pandemic realities in incarceration nations

It has now been a couple of weeks since I did a round-up of prison-COVID press pieces. To their credit, the press and commentators keeping reporting and discussing the discouraging tales that keep emerging from our prisons and jails.  But I cannot help but find, as we enter the sixth month of this pandemic, that it has become disconcertingly easier to become numb to these persistently depressing stories.  Eager not to look past these still critical realities, here is a round-up of just a few headlines and pieces catching my eye recently:

From CBS News, "More than 500 inmates at Arizona prison test positive for COVID-19, according to corrections officials"

From the Chicago Tribune, "2 dead at Marion federal prison during COVID-19 surge despite restrictive conditions, say inmates and family members"

From the Cincinnati Enquirer, "COVID cases climb in Ohio prisons, worrying families and those employed to serve prisoners"

From CNN, "Inside the federal prison where three out of every four inmates have tested positive for coronavirus"

From Forbes, "As Bureau of Prisons Enters “Phase 9” Of COVID-19 Plan, BOP Staff Wonder If There Is A Real Plan"

From News Junkie, "Prisons and Parties Drive Connecticut’s Coronavirus Case Numbers"

From the Orlando Sentinel, "Many who have died of COVID-19 in Florida’s prisons were eligible for parole"

From the Washington Post, "The Federal Bureau of Prisons response to the coronavirus has been disastrous and deadly"

August 8, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

"Beyond Unreasonable"

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

The concept of “reasonableness” permeates the law: the “reasonable person” determines the outcome of torts and contracts disputes, the criminal burden of proof requires factfinders to conclude “beyond a reasonable doubt;” claims of self-defense succeed or fail on reasonableness determinations.  But as any first-year law student can attest, the line between reasonable and unreasonable isn’t always clear.  Nor is that the only ambiguity. In the realm of the unreasonable, many of us intuit that some actions are not only unreasonable but beyond the pale — we might say they are beyond unreasonable.  Playing football, summiting Nanga Parbat, and attempting Russian roulette all risk serious injury or death, but most people do not view them the same.  These distinctions raise vexing questions: what is it that makes us feel differently about these activities?  Mere unfamiliarity?  Moral condemnation?  Relative utility?  Or something else altogether?  Moreover, who exactly is the “we” forming these judgments?

This Article explores the vague lines that separate our sense of reasonable, unreasonable, and beyond unreasonable — the reasonableness lines.  Part I examines the general characteristics of these lines.  Part II explores their significance in law, and Part III considers their application in four discrete areas of law: tax policy for medical expenses, criminal punishment, speech restrictions, and tort liability for inherently dangerous sports.  The Article ends by summarizing the implications of the reasonableness lines for our culture and for ourselves.

August 8, 2020 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

August 7, 2020

Notable Prison Policy Initiative update on pandemic changes to prison and jail populations

Prison Policy Initiative published yesterday this great updated analysis (with lots of helpful charts and data visuals) of jail and prison populations changes amid the pandemic.  The full title of this publication captures the essence of the analysis: "Jails and prisons have reduced their populations in the face of the pandemic, but not enough to save lives:  Our updated analysis finds that the initial efforts to reduce jail populations have slowed, while the small drops in state prison populations are still too little to save lives."  Here are some of the data highlights:

At a time when more new cases of the coronavirus are being reported each day, state and local governments should be redoubling their efforts to reduce the number of people in prisons and jails, where social distancing is impossible and the cycle of people in and out of the facility is constant.  But our most recent analysis of data from hundreds of counties across the country shows that efforts to reduce jail populations have actually slowed — and even reversed in some places.

Even as the pandemic has spiked in many parts of the country, 71% of the 668 jails we’ve been tracking saw population increases from May 1st to July 22nd, and 84 jails had more people incarcerated on July 22nd than they did in March.  This trend is particularly alarming since we know it’s possible to further reduce these populations: in our previous analysis, we found that local governments initially took swift action to minimize jail populations, resulting in a median drop of more than 30% between March and May.

Meanwhile, state prisons — where social distancing is just as impossible as in jails, and correctional staff still come and go every day — have been much slower to release incarcerated people.  Since January, the typical prison system had reduced its population by only 5% in May and about 13% as of July 27th....

Some states’ prison population cuts are even less significant than they initially appear, because the states achieved those cuts partially by refusing to admit people from county jails.  (At least two states, California and Oklahoma, did this.)
While refusing to admit people from jails does reduce prison density, it means that the people who would normally be admitted are still incarcerated, but in different correctional facilities that have more population turnover and therefore more chances for the virus to spread.

Other states are indeed transferring people in prison to outside the system, either to parole or to home confinement, but these releases are not enough to protect vulnerable incarcerated populations from COVID-19.  For example, in California, thousands of people have been released weeks and months early, but the state’s prison population has only decreased by about 11% since January, leaving too many people behind bars in the face of a deadly disease.

Of the states with available data, the smaller systems have reduced their populations the most drastically. North Dakota’s prison population had already dropped by 19% in May. (North Dakota was also the state that we found to have the most comprehensive and realistic COVID-19 mitigation plan in our April 2020 survey.) Two months later, North Dakota has continued these efforts, reducing its prison population by a total of 25% since January, a greater percent change than any other state.

August 7, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Effective review of messiness of federal compassionate releases amidst COVID

BuzzFeed News has this great lengthy new piece on the messy realities of federal compassionate release realities during the pandemic. The full headline of the piece, which I recommend in full, provides a summary: "'I Had Hit The Lottery': Inmates Desperate To Get Out Of Prisons Hit Hard By The Coronavirus Are Racing To Court: With little legal precedent for a global pandemic, judges are deciding on a case-by-case basis how to weigh the risks of COVID-19 in prisons."  Here is an excerpt:

A BuzzFeed News review of more than 50 cases filed in the federal district court in DC showed that with little precedent for a flood of release requests during a pandemic, decisions about who gets out of prison and who does not can appear arbitrary. Prisoner advocates and defense lawyers say these cases can come down to the luck of the draw, with some judges proving to be more sympathetic than others.

Judges are making medical assessments about how much of a threat COVID-19 poses to an individual inmate and then deciding how to balance that against the public safety risk of sending that person back into the community; inmates are usually released to home confinement or under the supervision of a probation officer. And judges are reaching different conclusions about how to measure an inmate’s risk of exposure in state and federal prisons, which have seen some of the worst clusters of COVID-19 cases nationwide.

Boykin is one of more than 800 inmates who have been granted compassionate release by a federal judge since March, according to data from the Federal Bureau of Prisons. Another 7,000 federal inmates have been released by the BOP to home confinement in the same period, after Attorney General Bill Barr directed the bureau to prioritize using its own release power for eligible inmates to minimize the spread of COVID-19. More than 150,000 federal inmates remain incarcerated.

Thousands of inmates are still exploring options to get out. Families Against Mandatory Minimums, just one of the groups that connect inmates with pro bono legal assistance, has fielded more than 3,000 requests for help since the start of the pandemic. They’ve been able to match approximately 1,200 inmates and family members with lawyers.

“We were hoping ... that judges would not want to be a party to this ongoing, slow massacre in the prisons. And they’re not, and that’s good,” said FAMM President Kevin Ring. However, he said, when it comes to how judges are analyzing release requests, “it’s not consistent across jurisdictions — there are some judges who have been stricter and some who have been more lenient.”

August 7, 2020 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

August 6, 2020

"Labeling Violence"

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

In recent years, federal and state-level criminal justice reforms have softened the punitive responses to crime that defined the quarter-century from 1980–2005.  The main beneficiaries of these reforms have been non-violent criminals, who are increasingly eligible for pre- and post-charge diversion, expungement, early release from custody and early discharge from community supervision.  For those convicted of violent offenses, not much has changed: sentences remain long; opportunities for release remain few; and conditions of post-release supervision are tightly enforced, leading to high rates of return to prison.

The justification for a harsh response to violent crime is that such crime inflicts significant harm and represents a dramatic deviation from standards of acceptable behavior. In fact, “violent” behavior — that is, behavior that is intended to cause, or does in fact cause, physical injury to another person — is hardly anomalous.  Across the life-course, and particularly in youth and young adulthood, such behaviors frequently occur among a broad spectrum of the population and rarely lead to criminal conviction. This Article explores why only some behavior is labeled violent, and what implications this fact has for sentencing and correctional management of people convicted of violent crimes, and for the broader management of the criminal justice system.

August 6, 2020 in Offense Characteristics, Recommended reading | Permalink | Comments (1)

Ugly summer stories of southern justice in the form of extreme over-sentencing

The dog days of summer seems especially doggy this year, and here are a couple of notably ugly summer sentencing stories are part of this reality:

From CNN, "Louisiana Supreme Court upholds Black man's life sentence for stealing hedge clippers more than 20 years ago."  An excerpt:

A Black Louisiana man will spend the rest of his life in prison for stealing hedge clippers, after the Louisiana Supreme Court denied his request to have his sentence overturned last week.

Fair Wayne Bryant, 62, was convicted in 1997 on one count of attempted simple burglary. In his appeal to the Second Circuit Court of Louisiana in 2018, his attorney, Peggy Sullivan, wrote that Bryant "contends that his life sentence is unconstitutionally harsh and excessive."  
 
Last week, though, the state Supreme Court disagreed -- with five justices choosing to uphold the life sentence. The lone dissenter in the decision was Supreme Court Chief Justice Bernette Johnson, who wrote that "the sentence imposed is excessive and disproportionate to the offense the defendant committed."

From Fox News, "Disabled Iraq veteran faces five years in Alabama prison for legally prescribed medical marijuana." An excerpt:

By all accounts, Sean Worsley is a war hero. He earned a Purple Heart, along with a laundry list of additional military accolades, for clearing roadside bombs in Iraq. He also earned a lifetime of post-service ailments, including post-traumatic stress disorder (PTSD) and a traumatic brain injury (TBI). As a result of his injuries, Worsley was given a 100 percent disability rating from the Department of Veteran’s Affairs. He treated the worst symptoms of both injuries with medical marijuana prescribed to him legally in Arizona.

Now, Worsley sits in an Alabama jail facing five years in the state’s notoriously violent prison system after admitting to an officer he was in possession of medical marijuana while driving through Alabama and a subsequent probation violation for missing a court date.

UPDATE: I now realize that the headline of this local version of the Fox story more clearly summarizes the ugly sentencing reality: "Black disabled veteran sentenced to spend 60 months in prison for medical marijuana."

August 6, 2020 in Examples of "over-punishment", Offender Characteristics, Offense Characteristics | Permalink | Comments (1)

"Man is Opposed to Fair Play': An Empirical Analysis of How the Fifth Circuit Has Failed to Take Seriously Atkins v. Virginia"

The title of this post is the title of this notable new article now on SSRN authored by Michael L. Perlin, Talia Roitberg Harmon and Sarah Wetzel.  Here is its abstract:

In 2002, for the first time, in Atkins v. Virginia, 536 U.S. 304 (2002), the United States Supreme Court found that it violated the Eighth Amendment to subject persons with intellectual disabilities to the death penalty.  Since that time, it has returned to this question multiple times, clarifying that inquiries into a defendant’s intellectual disability (for purposes of determining whether he is potentially subject to the death penalty) cannot be limited to a bare numerical “reading” of an IQ score, and that state rules based on superseded medical standards created an unacceptable risk that a person with intellectual disabilities could be executed in violation of the Eighth Amendment.

Atkins provides a blueprint, but the question remains as to whether it will, in the long run, be more than a “paper victory.”  Until these issues are carefully considered, the true legacy of Atkins and its progeny will not be at all clear, and it will similarly not be clear if the case’s revolutionary potential will be fulfilled.  In this paper, we seek to answer this question: to what extent has the Fifth Circuit given meaningful life to Atkins and its progeny?  Our research reveals that, in the universe of 70 “Atkins cases” (that is, cases in the Fifth Circuit in which colorable Atkins-based arguments had been raised by defendants on habeas corpus applications), in only nine cases (12%) was any actual and meaningful relief granted to defendants (their sentences being commuted to life in prison, with one of those defendants having a parole hearing scheduled).  In 40 of the 70 cases (57%), the Circuit affirmed a decision below, in most cases, denying applications for writs of habeas corpus. Eight cases (11%) are still pending, that is, there was a remand from the Fifth Circuit or a grant of a certificate of appealability, and further proceedings are currently taking place or being scheduled.  In 13 cases (18.5%), although preliminary relief had been granted, defendants were ultimately unsuccessful; as of the writing of this paper, ten have been executed, one defendant’s execution has been stayed because of Covid-related reasons, one died in prison and one remains on death row. In short, if every one of the defendants in pending cases is successful (an outcome that, based on the Fifth Circuit’s global track record, is certainly not likely), that will mean that Atkins’ claims were successful in just 24% of all cases.

Our findings also revealed important patterns of why certain defendants were successful, and the majority were unsuccessful. It was more likely that at least preliminary relief was granted in those cases in which defendants were able to rebut allegations that they were “malingering,” in which effort to raise the so-called “Flynn effect” were prevalent, and in which the WAIS IQ test was relied upon; if all three were present, that seemed to heighten the likelihood of success.  On the other hand, the findings also revealed that it was less likely that a defendant would be successful if the WISC IQ test were used, if there was no rebuttal for malingering claims or if the subsequently-discredited testimony of one forensic psychologist was used by the state.

Our roadmap is this: First, we discuss the Atkins case and the significance of how post-Atkins cases modified and reinforced some of Atkins’ most salient points.  Following this, we will examine the universe of Fifth Circuit cases applying (often, misapplying) Atkins, explaining our methodology and revealing our findings.  We then consider this entire area of law and policy through the lens and filter of therapeutic jurisprudence, and then subsequently apply that doctrine’s principles to the database of the cases in question.  We conclude by offering some modest suggestions focusing on how we can finally, some 17 years after one of us used this phrase in a title of another law review article about Atkins, “giv[e] life” to this case.

August 6, 2020 in Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Reviewing how California got under 100,000 prisoners, a huge cut from modern high and the lowest since the 1980s (but still above designed capacity)

This lengthy San Francisco Chronicle piece, headlined "How California reduced its inmate population to a 30-year low," reports on the remarkable modern decline in the prison population in the state of California. Here are some highlights:

California’s prison population of 99,000 is its lowest since 1990 and 74,000 below its peak in 2006. Court rulings, new state laws and policies on imprisonment, and changes in voters’ attitudes have all contributed to the reduction, which has not led to any statewide increase in crime.  But the events look somewhat different through a broader historical lens. In 1976, the state’s prison population was 20,000, and the crime rate was only slightly higher than it is today.

What followed were decades of lockup laws, ballot measures — notably the “three strikes” initiative of 1994 — and policies by a series of governors, starting with Jerry Brown, whose more recent actions were crucial to the state’s turnaround. The surge in incarceration drove California to open 22 new prisons between 1984 and 2013, bringing the total to 35.  Gov. Gavin Newsom has announced plans to close two prisons in the next three years.

“California was at the forefront of both the prison building boom and tough-on-crime sentencing,” said Michael Romano, who teaches law at Stanford, directs the law school’s Three Strikes Project, and has been appointed by Newsom to head a committee examining possible further rollbacks in the state’s sentencing laws.  “To this day, people are serving life sentences for shoplifting batteries, stealing a kid’s bike, possession of drugs.”

When Brown first took office in 1975, prison sentences in California were largely controlled by the parole board — a felony was punishable by 1 to 5 years in prison, 5 to 10, or 7 to life, for example — and the board decided when an inmate was suitable for release, based on the inmate’s record and prison conduct.  The system, in effect since 1917, had become unpopular on both sides of the aisle.  Conservatives said inmates convicted of serious crimes were released too early, while many liberals said the parole board was biased against minorities and the poor.

In 1976, with bipartisan support, Brown signed a “determinate sentencing” law that established a range of fixed terms for nearly all crimes — two, four or six years, for example — and let the judge choose the sentence. The inmate could get time off for good behavior in prison, but, except for some convicted murderers and a few other categories, would never see a parole board.

While the new system made sentences more uniform, it also invited lawmakers, and voters, to increase punishment. A steady stream of laws over the next three decades made imprisonment mandatory for many crimes and added years to sentences for a defendant’s past convictions, gang affiliation, drug dealing and gun use, expanding five-year terms to 20 or 25 years in some cases. Initiatives bearing titles such as the Victims’ Bill of Rights (1982) and the Crime Victims’ Justice Reform Act (1990) limited defendants’ rights to challenge prosecutions and police conduct.  And in 1994, after 12-year-old Polly Klaas was kidnapped from her Petaluma home and murdered by a man with a felony record, state lawmakers and voters passed the nation’s first three strikes law. For defendants with two previous convictions for serious or violent felonies, the law required a sentence of 25 years to life for a new felony conviction, which could include shoplifting in some cases. If the defendant had one prior serious or violent felony conviction, the sentence for a new felony would be doubled.

The sentencing overhaul “was well-meaning and there was some rationale in trying to create equity among sentences and avoid disparities, particularly racial disparities,” said Stanford’s Romano, whose panel is scheduled to make its proposals to Newsom in January. “But it created this one-way ratchet of longer and longer sentences.”  Unsurprisingly, California’s prison population soared, exceeding 100,000 in 1990 and topping out at 173,000 in 2006....

The pushback began in the early 1990s, when prisoners filed class-action suits over prison health care and treatment of disabled and mentally ill inmates. Federal judges initially ordered improvements in the care systems, but saw little progress in prisons with too many inmates and too few resources.

In 2005, a federal judge in San Francisco ordered the state to transfer prison health care management to a court-appointed receiver, saying shoddy care was killing more than one inmate per day.  Although the state had reduced its prison population after Gov. Arnold Schwarzenegger declared an emergency, in 2009 a three-judge panel, citing ongoing health care deficiencies, ordered California to lower imprisonment by an additional 40,000, to 137.5% of designed capacity — an order upheld by the U.S. Supreme Court in 2011.

Brown, after being elected to his third term as governor in 2010, responded to the court order with a legislatively approved plan to sentence thousands of lower-level felons to county jails instead of state prisons, an approach titled “realignment” that lowered the prison population without reducing sentences.  But the governor also supported some rollbacks in sentencing laws, and three measures have won approval from voters:

  • Proposition 36 of 2012, which narrowed the three strikes law by imposing a 25-to-life sentence only if the third felony was serious or violent.
  • Prop. 47 of 2014, which reduced nonviolent, small-scale property thefts and drug crimes from felonies to misdemeanors.
  • Prop. 57 of 2016, a Brown-sponsored measure that allowed the parole board to consider releasing inmates who were convicted of nonviolent felonies and have completed their sentences for those crimes, before serving additional years for past convictions and other increases tacked on by post-1976 sentencing laws.

Those measures showed that “the people were way ahead of the politicians in focusing on rehabilitation and in ending mass incarceration,” said Donald Specter, executive director of the nonprofit Prison Law Office, which represents inmates in the health care case.

That assessment will be tested in November when voters will consider Prop. 20, an initiative sponsored by prosecutors and police groups that would repeal many of the sentencing changes in Prop. 47.

The final factor in the recent reduction in imprisonment was the coronavirus pandemic. With infections soaring in still-crowded penal institutions and heightened by a bungled transfer of infected prisoners to San Quentin, Newsom has temporarily halted transfer of newly sentenced inmates from county jail to state prison and ordered early releases that have reduced inmate totals statewide by 8,000.

Despite the changes, California prisons are still more than 16% above their designed capacity of 89,663, according to state officials. Further reductions would require further changes in sentencing and treatment of certain categories of inmates — for example, the mentally ill. “Are we ready to say that people with serious mental illness and health problems should be cared for in society?” asked Michael Bien, a lawyer for mentally ill inmates who initially sued the state over their treatment in 1990.

August 6, 2020 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

August 5, 2020

Iowa Gov, via executive order, restores voting rights to thousands with felony convictions

As reported in this lengthy local article, headlined "Gov. Kim Reynolds signs executive order restoring felon voting rights, removing Iowa's last-in-the-nation status," fans of democracy has some good news to celebrate today out of the great state of Iowa.  Here are the details:

Thousands of Iowans with felony convictions who have served their sentences can now participate in November's presidential election after Gov. Kim Reynolds signed an executive order Wednesday restoring their voting rights.

Reynolds, a Republican, signed the executive order Wednesday morning in her office at the Iowa Capitol, flanked by a group of local leaders and legislators.  "Quite simply, when someone serves their sentence and pays the price our justice system has set for their crimes, they should have their right to vote restored, automatically, plain and simple," she said.

Iowa was the last state in the nation that still banned all people with felony convictions from voting — even after the completion of their sentences — unless they applied individually to the governor's office to have their rights restored.

Reynolds has spent the past two years advocating for the Iowa Legislature to pass a constitutional amendment that would restore voting rights but had resisted calls to sign an executive order, saying she believes a constitutional amendment is the best solution because it can't be changed by a future governor.  This summer, after Republicans in the Iowa Senate did not pass the amendment and after George Floyd's death prompted increased advocacy on racial justice issues, she announced she would sign the order.

Iowa's felon voting ban was estimated to affect tens of thousands of people.  The Iowa Department of Corrections has discharged an average of 5,000 people with felony convictions annually in recent years, according to Sam Langholz, the governor's legal counsel.  A 2016 report from The Sentencing Project found that the ban affected nearly one in 10 African-American adults....

Reynolds' order states that felons must have discharged their sentence, including any parole and probation, before their voting rights will be restored.  Anyone still serving a prison sentence for a felony conviction will not be able to vote.

The order does not automatically grant voting rights to people convicted of felonies outlined in Iowa Code chapter 707, which includes murder and manslaughter.  People convicted of serious sexual abuse crimes will need to complete any special sentences before their voting rights are restored.  Those special sentences last either 10 years or for life, depending on the crime, meaning people convicted of the most serious sexual crimes will never automatically regain their voting rights. Those whose voting rights are not automatically restored under the order can still petition the governor individually to have them restored.

The executive order does not require people with felony convictions to fully pay back any restitution payments owed to their victims before regaining their rights, as was included in a bill introduced by Republicans in the Iowa Senate earlier this year. But the order does not relieve them from making their payments.  Nearly one in four Iowa felony convictions in the last two years came with a judgment ordering restitution to be paid to victims.  The average tab for those nearly 4,000 convictions is $11,607....

Matthew Bruce, an organizer with Des Moines Black Lives Matter, said he didn't agree with how the executive order prevents automatic restoration for people on probation or parole.  But he said he was encouraged to see that the order doesn't require payment of restitution.  "I was very glad about the restitution piece, and I thought that was the biggest victory out of all of this," he said.

In her remarks, Reynolds again emphasized her commitment to eventually restoring voting rights through a constitutional amendment. “Let me be clear, an executive order is at best a temporary solution,” she said.  “It can be changed with the stroke of a pen by the next governor, which is not good enough.  Something that is fundamentally right should not be based on the benevolence of a single elected official.”

August 5, 2020 in Collateral consequences, Who Sentences | Permalink | Comments (1)

By 5–4 vote, Supreme Court stays Orange County jail to implement certain COVID safety measures

This evening the Supreme Court, voting 5-4 along the "usual" lines, issued a stay to block an order requiring a local jail in California to implement certain safety measures to provide greater COVID protection to inmates.  The majority's order is just a paragraph and includes no reasoning, but Justice Sotomayor's eight-page dissent has a lot to say.  Here is how it starts and ends:

Today, this Court steps in to stay a preliminary injunction requiring Sheriff Don Barnes and Orange County (collectively, the Orange County Jail, or Jail) to implement certain safety measures to protect their inmates during the unprecedented COVID–19 pandemic.  The injunction’s requirements are not remarkable.  In fact, the Jail initially claimed that it had already implemented each and every one of them.  Yet, apparently disregarding the District Court’s detailed factual findings, its application of established law, and the fact that the Court of Appeals for the Ninth Circuit has twice denied a stay pending its review of the District Court’s order, this Court again intervenes to grant a stay before the Circuit below has heard and decided the case on the merits....  The Jail’s application does not warrant such extraordinary intervention.  Indeed, this Court stays the District Court’s preliminary injunction even though the Jail recently reported 15 new cases of COVID– 19 in a single week (even with the injunction in place), even though the Jail misrepresented under oath to the District Court the measures it was taking to combat the virus’ spread, and even though the Jail’s central rationale for a stay (that the injunction goes beyond federal guidelines) ignores the lower courts’ conclusion that the Jail’s measures fell “well short” of the Centers for Disease Control and Prevention (CDC) Guidelines...

At the time of the injunction, there were nearly 3,000 inmates still in the Jail’s care, 488 of whom were medically vulnerable to COVID–19.  “[H]aving stripped them of virtually every means of self-protection and foreclosed their access to outside aid, the government and its officials” must “‘take reasonable measures to guarantee the[ir] safety.’”  Farmer, 511 U.S., at 832–833; see also Valentine v. Collier, 590 U.S. ___, ___–___ (2020) (statement of SOTOMAYOR, J.) (slip op., at 6–7) (“It has long been said that a society’s worth can be judged by taking stock of its prisons. That is all the truer in this pandemic, where inmates everywhere have been rendered vulnerable and often powerless to protect themselves from harm”).  The District Court found that, despite knowing the severe threat posed by COVID–19 and contrary to its own apparent policies, the Jail exposed its inmates to significant risks from a highly contagious and potentially deadly disease.  Yet this Court now intervenes, leaving to its own devices a jail that has misrepresented its actions to the District Court and failed to safeguard the health of the inmates in its care.  I respectfully dissent.

August 5, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

ACLU launches "The Redemption Campaign - Embracing Clemency" seeking release of 50,000 from state prisons via clemency

This new press release reports on a notable new national clemency initiative.  Here are the highlights and links:

The American Civil Liberties Union today launched The Redemption Campaign -- Embracing Clemency, a first of its kind nationwide effort to release 50,000 people from state prisons over the next five years by executing state-level campaigns that push governors to use their existing clemency powers in new and transformational ways.  The campaign will work with governors to confront mass incarceration and racial injustice by granting commutations to large groups of people who are unjustifiably imprisoned.

A poll released by the ACLU today finds widespread support for governors to use their clemency authority to correct past injustices.  Eighty percent of voters support ending or shortening the prison sentences of certain people in prison. This includes 80 percent of Democrats, 73 percent of Republicans, and 81 percent of independents. Among those who have personally been a victim of a crime, 82 percent support clemency.

The ACLU’s efforts will initially focus on urging governors to release: 

  • People who, if convicted under current laws, would serve a lesser sentence than what they are currently serving;
  • People convicted of drug distribution and possession offenses, regardless of underlying substance;
  • People incarcerated for technical probation or parole violations; and
  • Older incarcerated people.

In the coming months, the ACLU will launch state-level campaigns to ensure governors use their clemency powers to release people in their states.  This will include direct candidate engagement and voter education in upcoming gubernatorial races as well as mobilization of constituents in states across the nation....

The ACLU will kick off the campaign with a live town hall event featuring leading activists who have received clemency, Cyntoia Brown Long and Jason Hernandez.  The town hall will begin at 7:00 p.m. ET on August 5, 2020 and will discuss the need for our leaders to recognize the power of clemency in correcting the harms caused by the decades long war on drugs and tough-on-crime era.

Racial disparities in prison populations are rampant.  Black and Latinx people make up 57 percent of the state prison populations despite comprising just 29 percent of the overall population, and those disparities exist across various convictions and sentences.  Nearly 50 percent of people serving life sentences, and nearly 60 percent of people serving life without parole, are Black.

Freeing 50,000 people is readily achievable.  Of the 1.3 million people in state prisons, nearly 165,000 people are over the age of 55, and the number of older incarcerated people continues to grow.  Further, there are 280,000 people imprisoned for supervision violations as probation and parole have failed to divert people out of the system and have instead become primary drivers of the mass incarceration crisis.  It is clear from any metric that far too many people are being harmed by the brutal excesses of the criminal legal system — serving sentences that serve no purpose other than to punish and degrade.

The ACLU/BPI poll is here 

A blog post by Jason Hernandez, detailing his experience with clemency, is here

The Corrective Compassion trailer video is here

A blog by former prosecutor Preston Shipp on clemency is here

August 5, 2020 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"#MeToo and the Myth of the Juvenile Sex Offender"

The title of this post is the title of this notable new paper authored by Cynthia Godsoe recently posted to SSRN. Here is its abstract:

The #MeToo movement has brought much needed attention to the widespread and systemic nature of sexual harm. However, the broad, uncritical push to connect “#MeToo” to criminal prosecution has real downsides, revealing the pathologies and ineffectiveness of the criminal system and re-inscribing the very gendered and racialized hierarchies the movement seeks to eradicate.  The mainstream understanding of #MeToo amplifies the omission of sexual harm from most conversations on decarceration and criminal legal reform.  This side of the movement focuses almost exclusively on individual blame and punishment, ignoring the structural causes of gender violence, as well as meaningful survivor healing and offender accountability.  This is true both as to the scope of criminalization, which is ever-expanding particularly as to sexual harms, and to the response once harm occurs, which is almost always to advocate for longer prison sentences and more restrictions post-release, such as sex offender registration.

This Symposium essay explores these issues by thinking through the way that the mainstream #MeToo movement treats and responds to youth who either engage in or are victims of sexual harm.  Despite the fact that much of the #MeToo reckoning has focused on high-profile men who repeatedly exploit minors — think Jeffrey Epstein, R. Kelly, Kevin Spacey — minors themselves, some as young as eight, constitute one third of those adjudicated sex offenders and one quarter of those required to register, sometimes for life.  At the same time, harm to young people who do not fit a mainstream mold is ignored.  Thus, although girls of color are sexually assaulted at much higher rates than white girls, their victimhood continues to be overlooked and their responses to it even criminalized.

In this essay, I join abolitionist advocates in urging caution about the direction the #MeToo movement is taking, particularly with regard to young people.  Our punishment of sexual harm with respect to youth reveals three significant pathologies of the broader criminal legal system.  First, we rely almost exclusively on criminalization and punishment to address societal problems that have multiple causes beyond individual culpability.  Second, the system is immensely costly, in fiscal and, most importantly, human terms, with very low effectiveness, both at preventing and at redressing harm.  Indeed, punishing youth for sex offenses puts them at much greater risk for being sexually abused themselves by adults — undermining the primary stated goal of the sex offense criminal framework.  Third, the criminal treatment of “sex crimes” reinforces the very gendered and racialized hierarchies that animate them.  Girls and women of color continue to be undervalued and unprotected, while male survivors continue to be stigmatized and disbelieved.  Indeed, Tarana Burke, founded the #MeToo movement to recognize non-normative victims, particularly girls and women of color, and recently lamented the current movement’s public face: “We have to shift the narrative that it’s a gender war, that it’s anti-male, that it’s men against women, that it’s only for a certain type of person — that it’s for white, cisgender, heterosexual, famous women.”

I conclude with the counterintuitive suggestion that decriminalization and decarceration efforts should not only include conduct labelled as “sex offenses,” but likely should begin with them. Transforming our approach to sexual harm is one key piece of an abolitionist vision that seeks to move beyond carceral approaches to achieving racial and gender justice.

August 5, 2020 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (0)

Advocacy groups urge Congress to include provisions to safeguard incarcerated persons in latest COVID bill

COVID19-State-Prisons-5AUG20-2048x1152A variety of leading advocacy groups sent this detailed letter to congressional leaders yesterday to advocate for "critical provisions to protect the health and safety of incarcerated individuals in the COVID-19 response package currently being negotiated."  Here is a portion of the first part of the six-page letter:

While the Coronavirus Aid, Relief, and Economic Security (CARES) Act expanded the Federal Bureau of Prison’s (BOP) authority to release individuals to home confinement, BOP and the Department of Justice (DOJ) have failed to exercise this authority. BOP and DOJ have been negligent in meeting Congress’ charge to quickly and safely reduce the prison population and minimize the spread and harm of COVID-19 for incarcerated persons and correctional staff.  Therefore, more is urgently required to address the alarmingly high infection rates occurring in correctional facilities across the nation.

As Congress works to provide additional relief for individuals impacted by the pandemic, it has a moral obligation to extend that relief to all of our most vulnerable — the elderly, the sick, those without medical care, and those unable to protect themselves from the virus — including those who are incarcerated.  We urge you to prioritize the health and wellbeing of incarcerated people and their families by incorporating the five recommendations outlined below in the next stimulus package.

The letter closes with detailed advocacy for these five action items:

It is therefore absolutely critical that Congress act swiftly to address the issues facing incarcerated individuals in the next COVID-19 relief package.  At a minimum, such legislation should include:

1. Provisions that will dramatically reduce pretrial and prison populations....

2. An expansion of court authority to release individuals in BOP Custody....

3. Increases in the availability of home detention for elderly people....

4. Provisions that facilitate essential communication with counsel....

5. Additional support at the federal, state, and local level to prevent, prepare for, and respond to coronavirus....

UPDATE: I just saw this notable new posting by The Council of State Governments Justice Center which highlights the continued urgency of these issues (and has the graphic I have added to this post).  The analysis is titled "COVID-19 Cases in State Prisons Grew by 12 Percent Every Week Last Month," and here is how it begins:

A new analysis by The Council of State Governments Justice Center shows that states are continuing to battle the growing spread of COVID-19 in their correctional facilities, with the number of positive cases in prisons rising 12 percent each week over the last month.

While states with some of the largest prison populations — such as Texas, California, Florida, Georgia, and Ohio—are seeing cases increase, Arkansas, Tennessee, and Delaware appear to have the highest proportion of COVID-19 infections among people incarcerated in their state prisons.

The following graph shows how the total number of cases is growing in state prisons across the country, and the maps below offer state-by-state data on how the virus is taking shape in these facilities.

August 5, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

August 4, 2020

Noting some of McGirt's early and uncertain echoes

Just under a month ago, the Supreme Court, via a 5-4 vote, decided in McGirt v. Oklahoma, No. 18–9526 (S. Ct. July 9, 2020) (available here), that a huge part of the state of Oklahoma "remains an Indian reservation for purposes of federal criminal law."  The start of Chief Justice Roberts' dissent expressed concern about the potential fall-out from this ruling, and a number of recent press pieces are starting to address this story in detail.  Here is a recent round-up:

From the ABA Journal, "After SCOTUS tribal decision, inmates file appeals, prosecutors hand off cases"

From the Marshall Project, "Half of Oklahoma Is Now Indian Territory.  What Does That Mean for Criminal Justice There? Tribal courts and federal prosecutors face a flood of new cases after the Supreme Court ruling."

From the McAlester News-Capital, "Batton: 'More questions than answers' after McGirt ruling"

From the New York Times, "A Historic Supreme Court Ruling Upends Courts in Oklahoma. Local prosecutors are referring criminal cases to the federal and tribal courts, which are now flooded with new cases."

From the Tulsa World, "McGirt ruling 'not a get out of prison free card,' Oklahoma AG says in request for court's guidance"

August 4, 2020 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"The Effect of Incarceration on Mortality"

The title of this post is the title of this notable new paper just posted to SSRN authored by Samuel Norris, Matthew Pecenco and Jeffrey Weaver. Here is its abstract:

This paper analyzes the effect of incarceration on mortality using administrative data from Ohio between 1992 and 2017.  Using event study and difference-in-differences approaches, we compare mortality risk across incarcerated and non-incarcerated individuals before and after pre-scheduled releases from prison.  Mortality risk halves during the period of incarceration, with large declines in murders, overdoses, and medical causes of death.  However, there is no detectable effect on post-release mortality risk, meaning that incarceration increases overall longevity.  We estimate that incarceration averts nearly two thousand deaths annually in the US, comparable to the 2014 Medicaid expansion.

August 4, 2020 in Prisons and prisoners | Permalink | Comments (0)

The newest (not-so-new) data from BJS on parole and probation populations throughout the United States

The Bureau of Justice Statistics just released this 40+-page report, titled "Probation and Parole in the United States, 2017-2018," providing its latest official data on offenders under community supervision throughout the nation.  Though already a bit dated, the report still provides a notable view on the largest group of persons subject to criminal justice control in the US.  Here are data from the "Highlights" section at the start of the report:

August 4, 2020 in Data on sentencing, Detailed sentencing data, Reentry and community supervision | Permalink | Comments (0)

August 3, 2020

"Is Death Different to Federal Judges?"

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

Legal commentators have long believed that federal judges treat capital appeals more favorably than noncapital appeals.  However, due to the bifurcated nature of capital trials and the complexity of the ensuing appeals, no empirical research to date has proven that the guilt-phase claims of capital defendants are more likely to succeed on federal habeas review than the claims of other defendants. 

This Note addresses that gap in the literature.  The Author analyzed 1,368 votes cast by federal appellate judges between 2013 and 2017 in murder cases heard on habeas review.  In each of those cases, the defendant was under a sentence of either death or life in prison. Exploiting this unique dataset, this Note finds that federal appellate judges are significantly more likely to grant guilt-phase relief to capital defendants than they are to similarly situated noncapital defendants.  It then rules out alternative explanations for this finding of a “sentencing effect,” such as differential attorney investment or dissimilarity between capital and noncapital defendants.  After establishing that federal appellate judges do in fact behave differently in capital cases, the Note considers the normative implications of this finding.  It ultimately concludes that the behavior of federal judges on habeas review is consistent with a generally shared principle of capital jurisprudence: preventing the execution of innocents.

August 3, 2020 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Important reminders that federal prisons remain problematic and deadly COVID hotspots

Today my inbox got two dispiriting reminders that federal prisons are still struggling in many awful ways with the coronavirus pandemic.  One reminder came from this new Washington Post piece headlined "Frail inmates could be sent home to prevent the spread of covid-19.  Instead, some are dying in federal prisons." I recommend the full piece (which discusses numerous compassionate release cases), and here are excerpts:

The Bureau of Prisons said 25 people have died in its custody this year while their requests for sentence reduction were under consideration, including 18 since March 1, around the time the coronavirus began spreading in U.S. communities.

To fight the virus’s spread, Attorney General William P. Barr in late March directed federal prisons to send vulnerable, low-risk inmates to home confinement or release them outright. According to the Bureau of Prisons website, about 7,000 inmates, or about 4 percent of its 160,000-inmate population, have been sent home since.

But the bureau has largely disregarded one method it has to release inmates, a procedure that seems ideally suited for the coronavirus pandemic — compassionate release. Part of bipartisan legislation passed in 2018, compassionate release was intended as a way to swiftly grant release to inmates who are terminally ill or for other “extraordinary and compelling reasons.” Yet even as it has released some prisoners to home confinement, the bureau routinely has opposed or not responded to requests for compassionate release.

In 50 cases decided in early July, for example, the bureau opposed 38 compassionate release requests or did not respond to them, and the requests were denied by courts, which make the final decision. The bureau also opposed 10 cases that courts eventually granted. Only in two cases did the agency agree to a release before a court intervened. In an email, bureau spokesman Justin Long said the bureau “has been proceeding expeditiously” on compassionate release requests....

The ACLU and other advocates for prisoners sued the bureau in May, seeking the release of as many Butner inmates as needed to allow for social distancing. “What’s alarming in all these institutional cases is how slow and sluggish the system has been to respond,” said Jonathan Smith of the Washington Lawyers’ Committee, which joined the lawsuit.

In a court document dated June 11, bureau officials said that since Barr’s guidance was released, 42 inmates at Butner — about 1 percent of the prison’s population — were transferred to home confinement, and nine were transferred to halfway houses. The number of compassionate releases from Butner was not readily available, BOP said.

A second reminder came in the form of this new fact sheet from the Federal Public Community Defenders titled "The Worsening COVID-19 Crisis in Federal Detention."  This two-page document (with lots of links) should also be read in full, and here is its opening paragraphs:

COVID-19 is ripping through the Federal Bureau of Prisons (BOP), infecting incarcerated individuals at a rate 5.95 times higher than the general population.  This crisis is occurring in a system that, due to structural racism, is disproportionately populated by Black and Hispanic people.  And Attorney General Barr and BOP are using a risk assessment tool (PATTERN) — that likely has an outsized negative impact on Black men — to prioritize eligibility for home confinement. The Department of Justice (DOJ) has not provided demographic data on the individuals BOP has approved for home confinement, despite congressional demands, and the only public data it has provided on PATTERN indicate just 7% of Black men qualify compared to 30% of white men. As the public rises to demand a reckoning with institutional racism, we cannot allow these conditions to persist.

On June 2, BOP Director Carvajal told Congress “We are beginning to flatten the curve.”  He was wrong.  BOP reports at least 107 deaths of incarcerated individuals.  The highest number of deaths in BOP prisons have occurred in Texas (currently the site of the three worst federal prison outbreaks in the country), North Carolina, California, Ohio, Kentucky, and Louisiana.  Some of these deaths were surely preventable.  BOP’s press releases reveal that the majority of these individuals — 83 — were known to be at higher risk of complications from COVID-19.  Over a quarter of the people who have died in BOP’s care were seventy years old or older. But they were never moved to a place of safety. And at least five died after asking — and some even being approved — for compassionate release or home confinement

August 3, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Study details how Georgia execution rate is "substantially greater" for those convicted of killing white victims than for those convicted of killing black victims

This New York Times article, headlined "A Vast Racial Gap in Death Penalty Cases, New Study Finds," highlights new research on the intersection of race and the death penalty.  Here are excerpts from the press piece with a few of the original links to the original research:

Black lives do not matter nearly as much as white ones when it comes to the death penalty, a new study has found.  Building on data at the heart of a landmark 1987 Supreme Court decision, the study concluded that defendants convicted of killing white victims were executed at a rate 17 times greater than those convicted of killing Black victims.

There is little chance that the new findings would alter the current Supreme Court’s support for the death penalty. Its conservative majority has expressed impatience with efforts to block executions, and last month it issued a pair of 5-to-4 rulings in the middle of the night that allowed federal executions to resume after a 17-year hiatus.

But the court came within one vote of addressing racial bias in the administration of the death penalty in the 1987 decision, McCleskey v. Kemp. By a 5-to-4 vote, the court ruled that even solid statistical evidence of race discrimination in the capital justice system did not offend the Constitution....

The McCleskey decision considered a study conducted by David C. Baldus, a law professor who died in 2011.  It looked at death sentences rather than executions, and it made two basic points.  The first was that the race of the defendant does not predict the likelihood of a death sentence.  The second was that the race of the victim does.  Killers of white people were more than four times as likely to be sentenced to death as killers of Black people, Professor Baldus found.

The new study, published in The Harvard Civil Rights-Civil Liberties Law Review, examined not only death sentences but also whether defendants sentenced to death were eventually executed. “The problematic sentencing disparity discovered by Baldus is exacerbated at the execution stage,” wrote the study’s authors, Scott Phillips and Justin Marceau of the University of Denver. Professor Baldus’s study examined more than 2,000 murders in Georgia from 1973 to 1979, controlling for some 230 variables.

Though some have argued that Professor Baldus did not consider every possible variable, few question his bottom-line conclusion, and other studies have confirmed it. In 1990, the General Accounting Office, now called the Government Accountability Office, reviewed 28 studies and determined that 23 of them found that the race of the victim influenced “the likelihood of being charged with capital murder or receiving a death sentence.” “This finding was remarkably consistent across data sets, states, data collection methods and analytic techniques,” the report said. A 2014 update came to a similar conclusion.

One factor Professor Baldus could not analyze, given the decades that often pass between sentencings and executions, was whether the race of the victim correlated to the likelihood of the defendant being put to death. The new study, the product of exhaustive research, supplied the missing information. It found that 22 of the 972 defendants convicted of killing a white victim were executed, as compared with two of the 1,503 defendants convicted of killing a Black victim.

The new study also confirmed just how rare executions are. Of the 127 men sentenced to death in the Baldus study, 95 left death row thanks to judicial action or executive clemency; five died of natural causes; one was executed in another state; one escaped (and was soon beaten to death in a bar fight); and one remains on death row.

A more general and less granular 2017 study compared two sets of nationwide data: homicides from 1975 to 2005 and executions from 1976 to 2015. Its conclusions were similarly striking. About half of the victims were white, that study found, but three-quarters of defendants put to death had killed a white person. About 46 percent of the victims were Black, but only 15 percent of defendants who were executed had killed a Black person.

Eric M. Freedman, a law professor at Hofstra, said courts and lawmakers had failed to confront the question of racial bias in the administration of capital punishment. “The continuing adherence of the Supreme Court to McCleskey is a continuing statement that Black lives do not matter,” he said. “The continuing failure of Congress and the state legislatures to remedy the situation is a continuing admission that the states are unable to run racially unbiased death penalty systems.”

I always find in-depth exploration of the Baldus study and McClesky so interesting and important, in part because David Baldus discovered that even in Georgia in the 1970s, it appears that the race of the defendant had relatively little or no impact on who was ultimately sentenced to death.  That strikes me as itself a remarkable and encouraging finding, even though he reached the corresponding and discouraging finding that the race of the victim did have a huge impact on who was ultimately sentenced to death.  But, as Prof Randall Kennedy astutely explored in this terrific article published right after the McClesky decision, one logical response to these kinds of race-of-the-victim disparity studies is to call for far more executions of persons who kill black victims to signal in this context that black lives matter as much as white ones.

According to my quick searching using the DPIC database, it appears that only 3 of 25 persons executed in the United States in 2018 had black victims, whereas in 2019 there were 6 of 22 persons executed in the US who had black victims.  Should we be "celebrating" that black lives mattered more than twice as much in the operation of the US machinery of death in 2019 than in 2018?  Circa 2020 when the feds are now poised to be the most active of executioners, should we all be urging Attorney General Barr, as he continues adding names to the list of condemned to now be marched into the federal death chamber, to be working harder to pick from federal death row those killers with black victims?

My point here is just to recall in this context Prof Kennedy's important insight that the most ready response to these kinds of race-of-the-victim disparities may be to encourage more (capital) punishment, especially if we end up talking about these disparities in terms of certain victims not getting equal justice.   I would also add that I wish there was a lot more of this kind of race-of-the-victim sentencing disparity conducted concerning non-capital crimes.  I suspect and fear that there may be even more pernicious individual and community harms resulting from persistently unequal sentencing for those who commit sexual or property offenses with black victims.  

August 3, 2020 in Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (2)

August 2, 2020

"Criminal Deterrence: A Review of the Missing Literature"

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

This review of the criminal deterrence literature focuses on the questions that are largely missing from many recent, excellent, comprehensive reviews of that literature, and from the literature itself.  By “missing” I mean, first, questions that criminal deterrence scholars have ignored either completely or to a large extent.  These questions range from fundamental (the distributional analysis of the criminal justice system), to those hidden in plain sight (economic analysis of misdemeanors), to those that are well-know yet mostly overlooked (the role of positive incentives, offender’s mental state, and celerity of punishment).  I also use “missing” to refer to the areas where substantial relevant knowledge exists but is largely disregarded within the criminal deterrence research program.  The empirical analysis of environmental and tax compliance are two stark examples.  Finally, I stretch “missing” to describe topics that have been both studied and reviewed, but where substantial challenges remain.  These include the theoretical explanation for the role of offense history, the proper accounting for the offender’s gains, the estimation of the costs of various crimes, and the cost-benefit analysis of crime-reduction policies.

Among the literature’s missing pieces, several stand out both on their own and because they combine to produce a highly unfortunate result.  First, the literature makes only a minor effort to estimate the cost of crime, and essentially no effort to estimate the cost of white-collar offenses.  Combined with no centralized reporting of white-collar crimes and, therefore, no empirical analysis of them, the literature adds to the impression — not supported by the available evidence — that street crime is a great social problem while white-collar crime is a minor one.  Second, the literature fails to treat misdemeanors (and misdemeanor enforcement) as an independent subject of study.  This creates an impression — also unjustified — that thirteen million or so misdemeanor charges a year — and countless millions of stops, frisks, and interrogations that lead to no charges — all heavily skewed by race and class — are not a major social problem either. Third, the literature is only starting to develop a benefit-cost analysis of various crime-reducing strategies.  This analysis almost exclusively considers measures reflected in the optimal deterrence model and, therefore, internal to the criminal justice system.  This creates an impression — almost surely false — that deterrence is the only means of reducing future crime. Finally, the literature ignores distributional analysis altogether, even though the burdens of crime and the criminal justice system vary dramatically, predictably, and disturbingly by race and income.  By disregarding this variation, the literature may be reinforcing it. 

For all these reasons, the criminal deterrence literature may well be contributing to the overwhelming, singular focus of American society and law enforcement on the forceful deterrence of street crime. Addressing the missing pieces would enrich the literature, expand its appeal and policy-relevance, and enable academics to contribute to the effort of setting the US criminal justice system on the path of long-overdue structural reforms.

August 2, 2020 in Purposes of Punishment and Sentencing, Race, Class, and Gender, White-collar sentencing | Permalink | Comments (1)

US Department of Justice sets two execution dates for late September

As I have mentioned before, in this recent post I wondered aloud "How many federal death row prisoners does Attorney General William Barr want to see executed in 2020?".  My central point in that post was that, after the completion of three federal executions earlier this month thanks to SCOTUS lifting lower court stays, there is every reason to believe that AG Barr will be able to complete however many executions he decides to set in the near future.

Thereafter, as reported in this post, DOJ set the execution of Lezmond Mitchell for August 26, 2020.  And late Friday, as detailed in this DOJ press release, AG Barr has decided that he wants to move forward with at least two more executions in 2020.  This release includes these particulars:

Attorney General William P. Barr ... directed the Federal Bureau of Prisons to schedule the executions of two federal death-row inmates who were each convicted of murder.

  • William Emmett LeCroy raped and murdered Joann Lee Tiesler, a 30-year-old nurse, in 2001.  LeCroy had previously served 10 years in federal and state prison for, among other crimes, aggravated assault, burglary, child molestation, and statutory rape.  After his release to supervised probation, LeCroy began planning to flee the country.  In furtherance of that plan, LeCroy broke into Tiesler’s home in Gilmer County, Georgia.  Once she returned home, LeCroy attacked her, bound her hands behind her back, strangled her with an electrical cord, and raped her.  Then he slashed her throat with a knife and stabbed her in the back five times.  LeCroy then stole Tiesler’s vehicle and drove to the Canadian border, where he was arrested....  LeCroy’s execution is scheduled for Sept. 22, 2020.
  • Christopher Andre Vialva murdered youth ministers Todd and Stacie Bagley in 1999.  While stopping to use a payphone in Killeen, Texas, Todd Bagley agreed to give a ride to Vialva and two of his accomplices.  In the victims’ car, Vialva pulled out a gun, forced the Bagleys into the trunk, and drove the vehicle for several hours, stopping at ATMs to withdraw money from the couple’s bank account and trying to pawn Stacie Bagley’s wedding ring.  While locked in the trunk, the couple spoke with their abductors about God and pleaded for their lives.  Vialva eventually parked at a remote site on the Fort Hood, Texas, military reservation, where an accomplice doused the car with lighter fluid as the couple sang and prayed.  Vialva then shot Todd Bagley in the head, killing him instantly, and shot Stacie Bagley in the face, knocking her unconscious and leaving her to die of smoke inhalation after an accomplice set the car on fire.... Vialva’s execution is scheduled for Sept. 24, 2020.

A few of many recent prior related posts:

August 2, 2020 in Death Penalty Reforms, Who Sentences | Permalink | Comments (1)