Sentencing Law and Policy

"Progressive Algorithms"

The title of this post is the title of this notable new paper authored by Itay Ravid and Amit Haim available via SSRN.  Here is its abstract:

Our criminal justice system is broken.  Problems of mass incarceration, racial disparities, and susceptibility to error are prevalent in all phases of the criminal process.  Recently, two dominant trends that aspire to tackle these fundamental problems have emerged in the criminal justice system: progressive prosecution — often defined as elected reform-minded prosecutors that advance systemic change in criminal justice — and algorithmic decision-making — characterized by the adoption of statistical modeling and computational methodology to predict outcomes in criminal contexts.

While there are growing bodies of literature on each of these two trends, thus far they have not been discussed in tandem.  This Article argues that scholarship on criminal justice reform must consider both developments and strive to reconcile them.  We argue that while both trends promise to address similar key flaws in the criminal justice system, they send diametrically opposed messages with respect to the role of humans in advancing criminal justice reform.  Progressive prosecution posits that humans are the solution, while algorithmic tools suggest humans are the problem.  This clash reflects both normative frictions and deep differences in the modus operandi of each of these paradigms.  Such tensions are not only theoretical but have immediate practical implications such that each approach tends to inhibit the advantages of the other with respect to bettering the criminal justice system.

We argue against disjointly embedding progressive agendas and algorithmic tools in criminal justice systems.  Instead, we offer a decision-making model which prioritizes principles of accountability, transparency, and democratization without neglecting the benefits of computational methods and technology.  Overall, this article offers a framework to start thinking through the inherent frictions between progressive prosecution and algorithmic decision-making and the potential ways to overcome them.  More broadly, the Article contributes to the discussions about the role of humans in advancing legal reforms in an era of pervading technology.

Senate Judiciary Committee advances three criminal justice and sentencing reform bills

I noted in this post last month that the US Senate Judiciary Committee had  plans to take three criminal justice bill: the First Step Implementation Act, the COVID-19 Safer Detention Act, and the Prohibiting Punishment of Acquitted Conduct Act.  This Law360 piece from a few weeks ago reported that, "on a 14-8 vote, the Senate Judiciary Committee passed the COVID-19 Safer Detention Act of 2021."  And the other bill moved forward this past week, as reported in this press release from Senator Grassley:

[T]he Senate Judiciary Committee voted to advance two bipartisan criminal justice reform bills authored by U.S. Senate Majority Whip Dick Durbin (D-Ill.), Chair of the Senate Judiciary Committee, and U.S. Senator Chuck Grassley (R-Iowa), Ranking Member of the Senate Judiciary Committee — the Prohibiting Punishment of Acquitted Conduct Act of 2021 and the First Step Implementation Act of 2021. These bills will build on the landmark First Step Act and continue Congress’s bipartisan efforts to make our criminal justice system fairer....

The bipartisan, bicameral Prohibiting Punishment of Acquitted Conduct Act of 2021 would end the unjust practice of judges increasing sentences based on conduct for which a defendant has been acquitted by a jury.  Our criminal justice system rests on the Fifth and Sixth Amendment guarantees of due process and the right to a jury trial for the criminally accused.  These principles require the government to prove a defendant’s guilt beyond a reasonable doubt to a jury.  Under the Constitution, defendants may be convicted only for conduct proven beyond a reasonable doubt.   However, at sentencing, courts may enhance sentences if they find, by a preponderance of the evidence, that a defendant committed other crimes.  The difference in those standards of proof means that a sentencing court can effectively nullify a jury’s verdict by considering acquitted conduct.  The legislation was passed out of Committee by a bipartisan vote of 16-6.  More information on the Prohibiting Punishment of Acquitted Conduct Act of 2021 can be found here.

 

The bipartisan, bicameral First Step Implementation Act would advance the goals of the landmark First Step Act (FSA), by, among other provisions, making eligible for retroactive review some of the FSA’s sentencing reforms. The FSA — authored by Durbin and Grassley and signed into law in 2018 — is bipartisan criminal justice reform legislation designed to make our justice system fairer and our communities safer by reforming sentencing laws and providing opportunities for those who are incarcerated to prepare to reenter society successfully.  The First Step Implementation Act was passed out of Committee by a bipartisan vote of 13-9.  More information on how the First Step Implementation Act of 2021 would further the goals of the FSA can be found here.

I have little sense of whether or when these bills might move through Congress and get to the desk of the President, but I am hope that congressional leadership sees that these bill are worth prioritizing because they have more bipartisan support that almost any other proposals these days.

Some prior related posts:

• Senators Durbin and Grassley introduce new "First Step Implementation Act"
• Senators Durbin and Grassley re-introduce "COVID-19 Safer Detention Act"
• Senators Durbin and Grassley re-introduce "Prohibiting Punishment of Acquitted Conduct Act" 
• Senate Judiciary Committee to mark up three criminal justice and sentencing reform bills
• "Acquitted. Then Sentenced."

Another dive into the ugly BOP realities of federal compassionate release during the pandemic

The Marshall Project has this new piece on federal compassionate release with a full title that captures its essential themes: "31,000 Prisoners Sought Compassionate Release During COVID-19. The Bureau of Prisons Approved 36.  As the pandemic worsened inside federal prisons, officials granted fewer releases." Here are excerpts (with links from the original):

Tens of thousands of federal prisoners applied for compassionate release after the virus began sweeping through lockups. But new Bureau of Prisons data shows officials approved fewer of those applications during the pandemic than they did the year before.  While the BOP director greenlit 55 such requests in 2019, a new director who took over in early 2020 approved only 36 requests in the 13 months since the pandemic took hold in March 2020.  The downturn in approvals came even as the number of people seeking compassionate release skyrocketed from 1,735 in 2019 to nearly 31,000 after the virus hit, according to the new figures.

Because the numbers were compiled for members of Congress, BOP spokesman Scott Taylor said the agency would not answer any questions about the data, “out of respect and deference” to lawmakers.  But Shon Hopwood, a Georgetown law professor, called the bureau’s decrease in compassionate releases during the pandemic “mind-boggling.”...

Federal judges have stepped in to release thousands of people in the face of BOP inaction. And the bureau continues to face intense scrutiny and several lawsuits over its handling of COVID-19.  Since the first reported case last spring, more than 49,000 federal prisoners have fallen ill and 256 have died, according to corrections data tracked by The Marshall Project.  Thirty-five of those who died were waiting for a decision on their release requests....

People in federal prisons seeking release during the pandemic have two main ways to get out early.  One is home confinement, which allows low-risk prisoners to finish their sentences at home or in a halfway house.  They’re still considered in custody, and the decision to let them out is entirely up to the Bureau of Prisons.  As COVID shutdowns began last March, Congress expanded the eligibility criteria and then-Attorney General Bill Barr ordered prison officials to let more people go.  Since then, more than 23,700 people have been sent to home confinement — though several thousand of them may have to return to prison once the pandemic ends.

The other way to get out early is through compassionate release.  If a warden endorses a prisoner’s request, the case goes to BOP’s central office, which usually rejects it.  But if a warden denies a request or 30 days pass with no response, then the incarcerated person can ask a judge to reduce the sentence to time served.  The new data showed 3,221 people have been let out on compassionate release since the start of the pandemic — but 99% of those releases were granted by judges over the bureau’s objections.

Last fall, The Marshall Project published data showing that the Bureau of Prisons rejected or ignored more than 98% of compassionate release requests during the first three months of the pandemic.  Citing that reporting, federal lawmakers in December wrote to the agency to demand more data on both compassionate release and home confinement.

The updated figures outlined in the agency’s response to Congress in April showed that BOP wardens actually endorsed slightly fewer compassionate release requests as the pandemic progressed.  In the first three months, wardens approved 1.4% of release applications.  The central office rejected most of those, with Director Michael Carvajal ultimately approving just 0.1%.  By the end of April — more than a year into the pandemic, and after more than 200 prisoner deaths — wardens had approved 1.2% of applications, and Carvajal again accepted just 0.1%.

By comparison, federal judges approved 21% of compassionate release requests they considered in 2020, according to a recent report from the U.S. Sentencing Commission....

For the most part, the bureau has offered little insight into its reasons for denying compassionate release. According to the information BOP sent to Congress, wardens denied nearly 23,000 requests because the person “does not meet criteria.”  Roughly 3,200 people were denied because their cases were “not extraordinary and compelling,” while a little over 1,200 were rejected for not providing enough information or documentation.  Four people met the criteria but were denied due to “correctional concerns,” the agency said.

Of the 374 prisoners that wardens recommended for compassionate release during the pandemic, the agency’s central office rejected or did not respond to just over 90%, apparently without making any note as to why.  “The BOP does not track the specific reasons for approval or denial of a compassionate release request at the Central Office level, as there can be several reasons for a particular decision,” wrote General Counsel Ken Hyle.  Some of those reasons, he added, could be opposition from federal prosecutors, a lack of release plan or fear that letting someone out would “minimize the severity of the inmate’s offense.”

A few of many prior related posts:

• US Sentencing Commission releases fascinating (and bare bones) "Compassionate Release Data Report" 
• Notable data on BOP resistance to compassionate release requests from federal prisoners
• "How Compassionate? Political Appointments and District Court Judge Responses to Compassionate Release during COVID-19" 
• Tangible example of continuing big sentence reductions in COVID era thanks to the FIRST STEP Act 
• Spotlighting remarkable (but still cursory) data on "compassionate release" after FIRST STEP Act 
• Notable new review and accounting of COVID and federal compassionate release results 

Split Indiana Supreme Court finally rules that forfeiture of Tyson Timbs' Land Rover driven to small drug deal was constitutionally excessive

Well over two years ago, as blogged here, the Supreme Court ruled unanimously in Timbs v. Indiana, 139 S. Ct. 682 (2019), that the that Excessive Fines Clause of Eighth Amendment applies to the states and then said little else about how that limit on punishment was to be applied. Upon remand, as blogged here, the Indiana Supreme Court some months later issued a lengthy opinion explaining its approach to the Clause while remanding case to the state trial court to apply this approach. And yesterday, the case returned to the Indiana Supreme Court as Indiana v. Timbs, No. 20S-MI-289 (Ind. June 10, 2021) (available here), and resulted in a split opinion in favor of Tyson Timbs. Here is how the majority opinion starts:

We chronicle and confront, for the third time, the State’s quest to forfeit Tyson Timbs’s now-famous white Land Rover.  And, again, the same overarching question looms: would the forfeiture be constitutional?

Reminiscent of Captain Ahab’s chase of the white whale Moby Dick, this case has wound its way from the trial court all the way to the United States Supreme Court and back again.  During the voyage, several points have come to light. First, the vehicle’s forfeiture, due to its punitive nature, is subject to the Eighth Amendment’s protection against excessive fines.  Next, to stay within the limits of the Excessive Fines Clause, the forfeiture of Timbs’s vehicle must meet two requirements: instrumentality and proportionality. And, finally, the forfeiture falls within the instrumentality limit because the vehicle was the actual means by which Timbs committed the underlying drug offense.

But, until now, the proportionality inquiry remained unresolved — that is, was the harshness of the Land Rover’s forfeiture grossly disproportionate to the gravity of Timbs’s dealing crime and his culpability for the vehicle’s misuse?  The State not only urges us to answer that question in the negative, but it also requests that we wholly abandon the proportionality framework from State v. Timbs, 134 N.E.3d 12, 35–39 (Ind. 2019).  Today, we reject the State’s request to overturn precedent, as there is no compelling reason to deviate from stare decisis and the law of the case; and we conclude that Timbs met his burden to show gross disproportionality, rendering the Land Rover’s forfeiture unconstitutional.

Justice Slaughter concurs in the judgment with lengthy separate opinion that includes a notable baseball analogy while fretting that the "law we interpret for the public we serve demands more than our subjective 'totality' test can sustain."  And Justice Massa dissents with separate opinion that starts this way:

The Court offers a compelling case for letting the beleaguered Tyson Timbs keep his Land Rover after all these years.  And the opinion, much to its credit, goes the extra mile in its concluding paragraphs to note and predict that Timbs will be the rare heroin dealer able to show gross disproportionality when his car is forfeited.  Still, I respectfully dissent.

The forfeiture here was indeed harsh, perhaps even mildly disproportionate, given all the facts in mitigation.  But I part ways with the Court’s holding that it was grossly so.  Such a conclusion can only be sustained by finding the severity of the underlying felony to be “minimal,” as the Court holds today. I am skeptical that dealing in heroin can ever be a crime of minimal severity.  No narcotic has left a larger scar on our state and region in recent years, whether overly prescribed or purchased illicitly on the street.

How many federal prisoners might now be serving illegal sentences after Borden?

I will be blogging in a future post about just how current federal prisoners serving Armed Career Criminal Act sentences might seek relief from now-illegal long sentences based on the Supreme Court's important ruling in Borden v. US, No. 19–5410 (S. Ct. June 10, 2021) (available here), limiting applicable ACCA precedents.  (Spoiler: they should not forget "compassionate release" as a means of seeking relief.)  But my inquiry for this post is the preliminary question in the title of this post: can we figure out how many federal prisoners might now be serving illegal sentences after Borden because they were sentenced on the basis of a reckless predicate ACCA offense?

Figuring out a precise answer to this question is very intricate, though it is aided greatly by this recent US Sentencing Commission report detailing in Figure 1 how many ACCA sentences have been handed down over the last decade.  Based on that data and with a bit of extrapolation, I think it possible that there could be as many as 10,000 persons (though likely somewhat fewer) in federal prison now serving ACCA sentences.  [UPDATE with better numbers: an astute commentor notes that the USSC report actually has a Figure 7 reporting that a "total of 3,572 offenders in
Federal Bureau of Prisons (BOP) custody as of June 27, 2020 were sentenced pursuant to the ACCA."  A year later, I would guess that number is about the same.] However, I suspect the vast majority of those prisoners would not have clear or even viable Borden claims.  In fact, I would be tempted to guest that less than 1 out of every 10 ACCA prisoners has a strong Borden-based claim for undoing his sentence. 

But I am truly making a wild guess here, and I am eager to hear from folks in the field about whether they agree that only hundred of sentences may be potentially disrupted by Borden or if in fact it could end up being thousands.  Whatever the exact number, as I will explain in a future post, every ACCA defendant with a viable Borden claim should be thankful for the FIRST STEP Act making "compassionate release" motions available o bring directly to court.  But more on that will come in a future post.

Some early coverage of big new SCOTUS ruling limiting ACCA in Borden

A busy day on other matters means I have only had a chance to skim Borden v. US, No. 19–5410 (S. Ct. June 10, 2021) (available here), the big win for the defendant today in an ruling limiting the reach of the Armed Career Criminal Act.  I hope in the coming days to have a lot to say about Borden ruling itself and its possible aftermath, but for now I can and will round up some early press and blog coverage:

From Bloomberg Law, "Divided High Court Sides With Defense on Repeat-Offender Law"

From Crime & Consequences, "Fractured Supreme Court Cripples Armed Career Criminal Act"

From The Hill, "Gorsuch, Thomas join liberal justices in siding with criminal defendant"

From Law & Crime, "Kagan Goes After Kavanaugh for Lengthy Footnote: There’s Nothing ‘Unfair’ About This Outcome"

From the New York Times, "Supreme Court Limits Sweep of Law on Mandatory Minimum Sentences"

From SCOTUSblog, "Court limits definition of 'violent felony' in federal gun-possession penalty"

From The Volokh Conspiracy, "Justice Thomas Takes One For The Team in Borden v. U.S."

US Sentencing Commission releases fascinating (and bare bones) "Compassionate Release Data Report"

I just received an email from the US Sentencing Commission with an alert about new data reports from the USSC.  Any new data from the USSC gets me excited, and I got even more jazzed upon seeing the heading "Compassionate Release Data" followed by this text in the email:

With the advent of the COVID-19 pandemic, the courts received thousands of compassionate release motions. This report provides an analysis of those compassionate release motions decided through December 31, 2020 for which court documentation was received, coded, and edited at the U.S. Sentencing Commission by May 27, 2021.

Data Overview

Through December 31, 2020, the Commission received the following information from the courts:

• 2,549 offenders were granted compassionate release. This represents 21% of compassionate release motions.
• 9,589 offenders were denied compassionate release. This represents 79% of compassionate release motions.
• 96% of granted motions were made by the defendant.

Somewhat disappointingly, the full report linked here provides precious little additional data beyond circuit and district breakdowns of these motions and their dispositions. I would be especially interested in seeing a lot more offender demographic information (e.g., race, gender, age of movant) and sentence modification information (e.g., primary sentenced offense and amount of sentence reduction).  But I am excited to learn that the USSC data staff is keeping track of these matters and seemingly planning to regularly report of what it is tracking.   

In 5-4 decision, SCOTUS limits reach of ACCA mandatory minimum "violent felony" predicates by holding a "reckless offense cannot so qualify"

The last big SCOTUS sentencing ruling of this Term that I have been eagerly awaiting was (yet another) one concerning application of the Armed Career Criminal Act.  Today the wait was over, as this morning the Court handed down it opinion in Borden v. US, No. 19–5410 (S. Ct. June 10, 2021) (available here).  And it is a big win for the defendant with Justice Kagan authoring the key opinion for four Justices (with Justices Breyer, Sotomayor and Gorsuch joining), which starts this way:

The Armed Career Criminal Act (ACCA), 18 U.S.C. §924(e), mandates a 15-year minimum sentence for persons found guilty of illegally possessing a gun who have three or more prior convictions for a “violent felony.”  The question here is whether a criminal offense can count as a “violent felony” if it requires only a mens rea of recklessness — a less culpable mental state than purpose or knowledge.  We hold that a reckless offense cannot so qualify.

Justice Thomas writes a concurring opinion that starts this way:

This case forces us to choose between aggravating a past error and committing a new one. I must choose the former.  Although I am “reluctant to magnify the burdens that our [erroneous] jurisprudence imposes,” Ring v. Arizona, 536 U.S. 584, 610 (2002) (Scalia, J., concurring), I conclude that the particular provision at issue here does not encompass petitioner’s conviction for reckless aggravated assault, even though the consequences of today’s judgment are at odds with the larger statutory scheme.  The need to make this choice is yet another consequence of the Court’s vagueness doctrine cases like Johnson v. United States, 576 U.S. 591 (2015).

Justice Kavanaugh writes a lengthy dissenting opinion (which is longer than the other two opinions combined) which concludes its opening discussion this way:

In my view, the Court’s decision disregards bedrock principles and longstanding terminology of criminal law, misconstrues ACCA’s text, and waves away the Court’s own recent precedent. The Court’s decision overrides Congress’s judgment about the danger posed by recidivist violent felons who unlawfully possess firearms and threaten further violence. I respectfully dissent.

There is a lot here to take in, but I hope to figure all this out before too long. The key takeaway is that, thank to Justices Gorsuch and Thomas, Borden is the slimmest of victories for the defendant here and likely the start of yet another chapter of uncertainty about what comes next in ACCA jurisprudence.

Functional life sentence finally becomes actual life (with eligibility for parole) sentence for person serving longest on death row

Because I love sports statistics and trivia (especially baseball, of course), I cannot avoid being intrigued by records and data even in the much-less-fun world of sentencing.  Consequently, this AP story caught my eye this morning under the headline, "Longest serving death row inmate in US resentenced to life."  Unsurprisingly, the story behind the statistic is fascinating: 

The longest serving death row inmate in the U.S. was resentenced to life in prison on Wednesday after prosecutors in Texas concluded the 71-year-old man is ineligible for execution and incompetent for retrial due to his long history of mental illness.

Raymond Riles has spent more than 45 years on death row for fatally shooting John Thomas Henry in 1974 at a Houston car lot following a disagreement over a vehicle. He is the country's longest serving death row prisoner, according to the Death Penalty Information Center.

Riles was resentenced after the Texas Court of Criminal Appeals ruled in April that his “death sentence can no longer stand” because jurors did not properly consider his history of mental illness. Riles attended his resentencing by Zoom from the Polunsky Unit in Livingston, which houses the state’s death row inmates.  He said very little during the court hearing....

In a statement, Harris County District Attorney Kim Ogg said Riles is incompetent and “therefore can’t be executed.” “We will never forget John Henry, who was murdered so many years ago by Riles, and we believe justice would best be served by Riles spending the remainder of his life in custody of the Texas Department of Criminal Justice,” Ogg said.

During his time on death row, Riles has been treated with heavy antipsychotic medications but was never deemed mentally competent to be executed, according to prosecutors and his attorneys.  He had been scheduled for execution in 1986 but got a stay due to competency issues.  While Riles spent more than 45 years on death row in Texas, prisoners in the U.S. typically spend more than a decade awaiting execution, according to the Death Penalty Information Center.

[District Judge Ana] Martinez was not able to resentence Riles to life in prison without parole because it was not an option under state law at the time of his conviction. Riles’ new sentence means he is immediately eligible for parole.  The Texas Board of Pardons and Paroles will automatically conduct a parole review in his case, [Riles’ attorney Jim] Marcus said.

The district attorney’s office as well as Henry’s family have indicated they will fight any efforts to have Riles released on parole. “Mr. Riles is in very poor health but, if the Board of Pardons and Paroles sees fit to grant parole, he has family with the capacity to care for him,” Marcus said.

A co-defendant in the case, Herbert Washington, was also sentenced to death, but his sentence was overturned, and he later pleaded guilty to two related charges. He was paroled in 1983.

When Riles was tried, state law did not expect jurors to consider mitigating evidence such as mental illness when deciding whether to choose the death sentence. The U.S. Supreme Court ruled in 1989 that Texas jury instructions were unconstitutional because they didn’t allow appropriate consideration of intellectual disability, mental illness or other issues as mitigating evidence in the punishment phase of a capital murder trial.

But Riles’ case remained in limbo because lower courts failed to enforce the Supreme Court’s decision until at least 2007, according to his attorneys. That then gave Riles a realistic chance to prevail on this legal issue, but it wasn’t until recently that he had contact with attorneys who were willing to assist him, his lawyers said.

While prosecutors argued at Riles’ trial that he was not mentally ill, several psychiatrists and psychologists testified for the defense that he was psychotic and suffered from schizophrenia. Riles’ brother testified that his “mind is not normal like other people. He is not thinking like other people.”

While the Supreme Court has prohibited the death penalty for individuals who are intellectually disabled, it has not barred such punishment for those with serious mental illness, according to the Death Penalty Information Center. In 2019, the Texas Legislature considered a bill that would have prohibited the death penalty for someone with severe mental illness. The legislation did not pass.

A different assessment of "America’s Dangerous Obsession" with innocence on death row

Thirteen years ago, in an article titled Reorienting Progressive Perspectives for Twenty-First Century Punishment Realities, 3 Harv. L.& Pol'y Rev. Online (2008), I explained the basis for my concern that "progressive criminal justice reform efforts concerning innocence issues, abolition of the death penalty, and sentencing disparities may contribute to, and even exacerbate, the forces that have helped propel modern mass incarceration."  That old article feels fresh again upon seeing this new lengthy Atlantic piece by Elizabeth Bruenig titled "America’s Dangerous Obsession With Innocence."  Here are a few excerpts from the piece:

It goes without saying that the state should not kill innocent people, and that it is a good thing to save the innocent from a fate no one thinks they deserve.  I believe it is a good thing, too, to save the guilty from a fate some would argue they have earned.  That the one stance may occlude the other reflects the death penalty’s bizarre moral universe....

According to the national Registry of Exonerations, more than 1,000 people have been exonerated for murder in the United States since 1989.  Many of these cases were initially decided when forensic techniques and technologies were less advanced and less accurate than they are now.  People with plausible innocence claims have, in some instances, been able to bring new technology to bear on preserved evidence to great effect.  That phenomenon spurred the innocence movement in capital-punishment advocacy as we know it.

“Around the year 2000, there’s this ferment all over the place to create innocence programs,” David R. Dow, the founder and director of one such program, the Texas Innocence Network, told me. “They’re kind of sexy. Funders want to fund them. People are beginning to pay attention to the fact that there are innocent people in prison.”

Marissa Bluestine, the assistant director of the Quattrone Center for the Fair Administration of Justice at the University of Pennsylvania Carey Law School, told me that more than 50 innocence organizations now operate in the United States.  They differ in size, scope, region, and budget, but they “all have the same goals: They work to identify people who did not commit the underlying crime they were convicted of and they try to exonerate them.”

That’s well and good, except that the number of innocence claims that can be confidently settled in labs is not infinite, and may in fact be dwindling. Dow, who teaches law at the University of Houston, has represented more than 100 clients on death row in his 30 years of practice; out of that number, he counts only eight as credibly innocent. He doesn’t suspect that his future will hold many more....

More generally, a 2014 published by the National Academy of Sciences found that if all of American death-row inmates were to remain condemned indefinitely, approximately 4.1 percent would eventually be exonerated — a proxy for the share of innocent inmates. That’s an admittedly conservative estimate. But even if the number of innocent inmates were doubled, the number of guilty ones would still make up more than 90 percent of death row....

To put it succinctly: Innocence cases indicate that some capital sentences are unfair, but decades of studies on death-qualified juries; race, gender, and immigration-status bias among jurors; law enforcement and prosecutorial misconduct; weak forensic science and poor representation at trial all suggest that a fair capital sentence is virtually impossible.  Ultimately the fight should be waged not against particular injustices, but against the unjust system itself.

Especially for those inclined toward capital abolition, I fully understand the logic of speculating that there many not be that many innocent persons left on death row and so even more fight needs to be directed toward the guilty on death row.  However, the fight against against all of death row has been pretty robust and pretty effective over the last 20 years (surely aided by the innocence movement).  Nationwide, since 2000, death row has shrunk about 30%, the number of executions has shrunk about 75%, and the number of death sentences imposed has shrunk 85%.

But, shifting our focus from formal death sentences to what are sometimes called "death in prison" sentences, the modern story changes dramatically.  As detailed in a recent Sentencing Project report (discussed here), the "number of people serving life without parole — the most extreme type of life sentence — is higher than ever before, a 66% increase since ... 2003."   Moreover, while there are currently around 2500 people on death row who have all been convicted of capital murder, there are now roughly 4000 people "serving life sentences [who] have been convicted for a drug-related offense."  And well over 200,000 persons are now "serving a life sentence, either life without parole (LWOP), life with parole (LWP) or virtual life (50 years or more)."  

If we keep the focus on innocence, and use the 4% number discussed in this Atlantic article and extrapolate, these data mean we could have 100 innocent persons on death row, but also 160 innocent persons serving life for a drug-related offense and over 8000 innocent persons serving LWOP or LWP or virtual life.  If there are lots of innocent groups and not a lot of "good" capital client, there would seem to be no shortage of innocent lifers needing help.  (And, on the data, I am always inclined to speculate that there are now an even larger number of innocent persons serving life than death because capital cases historically get more scrutiny.)

That all said, I obviously share this article's sentiment that guilty persons ought not endure unfair sentences and its advocacy for assailing "the unjust system itself."  However, the capital punishment system, for all its persistent flaws, still strikes me as somewhat less unjust than so many other parts of our sentencing system.  There are no mandatory death sentences, jurors play a central role in every death sentence, and state and federal appellate judges often actively review every death sentence.  There are nearly 100 people serving some type of life sentence for every person serving a death sentence in large part because life sentences are imposed so much more easily as subject to so much less scrutiny. 

Put simply, and I have said before, I worry it is a continued obsession with the death penalty, and not with innocence, that may be problematic in various ways.  But since that very obsession is largely what accounts for capital punishment's modern decline, I am disinclined to be too critical of capital obsessives.

"Acquitted. Then Sentenced."

The title of this post is the terrifically economical title of this new commentary authored by Shana O’Toole is the founder and president of the Due Process Institute.  As regular readers surely realize, the commentary focuses on a remarkable sentencing reality that has long troubled me and it discusses the possibility that a legislative fix may be in the works.  Here are excerpts from a piece I recommend (including a footnote that I consider especially important):

Imagine being accused of robbery and murder, but ultimately being found not guilty by a jury of your peers.  Now imagine that just two years later, you are indicted again for a wholly unrelated and less serious criminal offense. You voluntarily plead guilty, expecting to receive a fair sentence. The prosecutors, the probation office, and your defense lawyer all agree that current law sets an appropriate prison sentence ranging between 2.5 years to 3.5 years.

Your case is then assigned to the same judge who presided over your first case.  She sentences you to eight years in prison — more than double the highest end of the range that anyone else involved in the criminal legal system would have told you to expect.  And when she does so, she explains that when she went back over her old notes from your first trial, she determined there is a 51% chance that you should have been found guilty of those crimes, so she’s ignoring the jury’s earlier verdicts and now basing your sentence for this crime on those past unproven crimes.

If you think this describes what happens in a bad movie or under some authoritarian regime, you're wrong.  This describes a real case, and the practice is known as acquitted conduct sentencing.

Earlier this year, a bipartisan group of senators introduced legislation that will provide much-needed reform.  Tomorrow, this bill, the Prohibiting Punishment of Acquitted Conduct Act, will face its first major hurdle: a Senate Judiciary Committee markup.

The bill is a first step to addressing the many injustices caused by acquitted conduct sentencing.  It will prohibit federal judges from increasing a person’s prison sentence for one offense on the basis of another offense for which a jury had found the person not guilty.

Perhaps the most apparent problem with acquitted conduct sentencing is that it erodes our system’s presumption of innocence and the fundamental principles of fairness and justice.  Many lawyers and activists argue that it undermines the Sixth Amendment right to a jury trial — a pillar of the American criminal legal system, which requires that juries, not judges, determine the facts essential to a prison sentence.

Yet acquitted conduct sentencing remains permissible in every federal court and a majority of state courts. While the actual number of impacted persons has yet to be quantified,[FN1] based on the number of federal appeals we know that the practice is widespread.  At my organization, the Due Process Institute, our office mailbag is full of letters from those trapped behind prison walls who are serving sentences well past what their actual convictions should have brought them.

[FN1] It is almost impossible to say how many people have been directly impacted by the practice since no entity in our federal legal system currently tracks that data. No judge in any of our 94 distinct federal judicial districts is required to document when he or she relies on acquitted conduct in their sentencing decision. And there is often inadequate documentation of acquitted conduct sentencing placed on the public trial record....

Some members of the Supreme Court have raised concerns.... The view that acquitted conduct sentencing is unconstitutional has also won support from lower court judges across the political spectrum.  But the majority of the Supreme Court appears to remain unconvinced.

Without Supreme Court action, we must look to Congress for a remedy.  Thankfully, the legislative fix for this problem is relatively easy. Congress need only amend the law to explicitly exempt the use of acquitted conduct as a basis for increasing a person’s sentence.  The congressional history of 18 U.S. Code § 3661 — the part of the law dealing with the use of information for sentencing — indicates that the law was enacted to provide broad discretion to federal judges when considering information during sentencing.  But it does not appear that the statute was explicitly enacted to permit the specific practice of acquitted conduct sentencing.

The political case for abolishing the use of acquitted conduct at sentencing should appeal to sensibilities on both sides of the political aisle.  That’s why the Senate bill and a similar one in the House of Representatives have each received support from Democrats and Republicans.  In an era in which such bipartisan agreement is increasingly rare, this is an opportunity for Congress to pass meaningful legislation that will make our justice system more fair and effective.

It’s time to put an end to acquitted conduct sentencing, and the Senate’s legislation is a good start.  Tomorrow, the Judiciary Committee should vote to move this legislation forward unamended and allow it to come to the Senate floor for a vote.

GOP Gov and former DEA chief calls for Congress to "finally and fully end the disparity between crack and cocaine offenses"

In this new Fox News commentary, Arkansas Gov Asa Hutchinson makes a notable pitch for the EQUAL Act (discussed here).  The piece is headlined "It's time to fix an old wrong and end the disparity between crack and cocaine offenses," and I recommend it in full.  Here are excerpts:

In America, the principles of fairness and equal treatment are fundamental to the rule of law.  When we fall short of these principles, we lose confidence in our justice system and weaken the foundation of our country.  Since 1986, there has been a substantial difference in prison sentences for crack and powdered cocaine offenses, a disparity that has not only encouraged a misapplication of limited law enforcement resources, but has also been the source of unequal punishment for basically identical crimes....

During my time in Congress in the 1990s, and as the head of the Drug Enforcement Administration (DEA) from 2001-2003, I saw first-hand the impact of this disparity, and found it was failing on three fronts.  First, it rarely led to the prosecution of major drug traffickers and sellers.  Instead, it led to increased prosecutions of small-time dealers and peripheral supporters, almost all of whom were replaced immediately.

Second, it became clear that the disparity was built on a misunderstanding of crack cocaine’s chemical properties and effects of the body.  Crack and powdered cocaine were chemically the same, and the violence that was linked to crack cocaine was not related to the properties of the drug.  Instead, it was the general product of the drug trade and the historically violent trends in areas where crack is predominantly used and sold.

Third, it undermined community confidence in the fairness of the criminal justice system. I talked with drug task force officers and front-line agents at the DEA who said this sense of injustice had a real impact in the fight against illegal drugs; it made it more difficult for agents to build trust and work with informants in the areas most impacted by the crack epidemic.  The disparity in sentencing led to more harm than help in our federal anti-crime efforts.

The bipartisan Fair Sentencing Act, sponsored by Sens. Dick Durbin, D-Ill., and Jeff Sessions, R-Ala., dramatically reduced the disparity, from 100:1 to 18:1.  In 2018, the First Step Act, signed into law by President Donald Trump, made that reduced disparity retroactive.

Those were important steps, but the new sentencing laws continue to cause disproportionate harm and decreased trust in communities of color.  For example, in 2019, Black people accounted for 81% of all federal crack cocaine convictions. Those convictions led to prison terms 18 times longer than they would have been for equivalent amounts of chemically identical powdered cocaine.

It is time for Congress to finish what it started, and finally and fully end the disparity between crack and cocaine offenses.  The bipartisan Equal Act would bring federal sentencing law in line with most states that have eliminated, reduced or never instituted, these unjust disparities. That includes my home state of Arkansas, where possession of crack and powdered cocaine are treated the same under state law....

The strength of our justice system is totally dependent on the perception of fairness and the concept that punishments should fit the crimes.  The clear and pernicious injustice of crack and powdered cocaine sentencing disparities harms our communities, limits law enforcement in their fight against illegal drugs, and weakens the foundation of our entire system of justice.

Congress has the opportunity to fully and finally eliminate this injustice by passing the Equal Act.  To get it done, lawmakers of all different backgrounds will need to put partisanship aside and work in the best interests of the American people.  I can’t think of a worthier cause than preserving our founding principle — that all Americans are treated equally under the law.

I am fully supportive of efforts to equalize federal crack and powder sentencing rules which are now based largely around the quantity of drugs involved in the offense.  But, for truly effective reform, I believe we need to not only move entirely away from any quantity-based approaches to drug offense sentencing, but also start moving away from punitive criminal justice responses to drug activities.

A few prior related posts:

• New efforts to fix the ugly old problem of sentencing disparity for federal crack and powder cocaine offenses 
• Small, and not quite steady, reform progress in a not quite new era for criminal justice reform 

Prison Policy Initiative highlights data showing "State prisons are increasingly deadly places"

Prison Policy Initiative published today this new report (with helpful charts and data visuals) under the title "New data: State prisons are increasingly deadly places." The subtitle of this report captures the essence of the data discussed in the report: "New data from the Bureau of Justice Statistics shows that state prisons are seeing alarming rises in suicide, homicide, and drug and alcohol-related deaths." Here are some excerpts from the start of the report (with links from original):

The latest data from the Bureau of Justice Statistics (BJS) on mortality in state and federal prisons is a reminder that prisons are in fact “death-making institutions,” in the words of activist Mariame Kaba.  The new data is from 2018, not 2020, thanks to ongoing delays in publication, and while it would be nice to see how COVID-19 may have impacted deaths (beyond the obvious), the report indicates that prisons are becoming increasingly dangerous — a finding that should not be ignored.  The new numbers show some of the same trends we’ve seen before — that thousands die in custody, largely from a major or unnamed illness — but also reveal that an increasing share of deaths are from discrete unnatural causes, like suicide, homicide, and drug and alcohol intoxication....

Deaths in jail receive considerable attention in popular news, and here on our website — which they should, given the deplorable conditions that lead to tragedy among primarily unconvicted people.  State prisons, on the other hand, are regarded as more stable places, where life is slightly more predictable for already-sentenced people.  Why, then, are suicides up 22 percent from the previous mortality report, just two years prior?  Why are deaths by drug and alcohol intoxication up a staggering 139 percent from the previous mortality report, just two years prior?

The answer isn’t just because there are more incarcerated people.  The very slight net change in the state prison population since 2001 pales in comparison to the increase in overall deaths occurring in these facilities. (Prison populations have actually decreased since peaking in 2009, but they’re still larger in 2018 compared to 2001.)  Prisons have been, and continue to be, dangerous places, exposing incarcerated people to unbearable physical and mental conditions.  State prison systems must greatly improve medical and mental healthcare, address the relationship between correctional officers and the health of their populations, and work with parole boards to accelerate release processes.  Then, maybe, a state prison sentence would not become a death sentence for so many....

In 2018, state prisons reported 4,135 deaths (not including the 25 people executed in state prisons); this is the highest number on record since BJS began collecting mortality data in 2001.  Between 2016 and 2018, the prison mortality rate jumped from 303 to a record 344 per 100,000 people, a shameful superlative.  It may seem like a foregone conclusion that more people, serving decades or lifetimes, will die in prison.  But for at least 935 people, a sentence for a nonviolent property, drug, or public order offense became a death sentence in 2018.

"Exploring Alternative Approaches to Hate Crimes"

The title of this post is the title of this notable new lengthy report published today by the Brennan Center for Justice at NYU Law and Stanford Law School.  I received an email about the publication, which provided this overview:

“Exploring Alternative Approaches to Hate Crimes” [is] a comprehensive report that assesses critiques of hate crime laws from communities of color and other targeted communities, and evaluates potential alternative approaches to respond to hate crimes more effectively.  The report addresses the harm hate crimes inflict and the limitations in keeping track of such crimes.  It finds that the current approach to hate crimes relies on increased law enforcement and imprisonment and that alternative responses centered on restorative justice and social services “may offer a way to identify and mend the unique individual and community harms caused by hate crimes, while demanding meaningful accountability for those who cause harm.”

“Our current hate crimes laws aim to recognize the profound harm to victims and their communities from crimes motivated by bias, but, as our report finds, they fall short in many ways,” said Stanford Law professor Shirin Sinnar, who along with Brennan Center Fellow Michael German, guided the policy practicum, Assessing Alternative Approaches to Hate Crimes, that compiled the report.  “Our goal with this report was to evaluate the traditional hate crime legal model, which focuses on increasing imprisonment for crimes with a proven bias motive, and explore the different approaches that local communities are now trying to counteract the injuries hate crimes inflict.”

“Hate crimes clearly remain a serious problem affecting uncounted individuals and communities across the U.S., and the law enforcement-centric approach we've employed over the last several decades has not provided satisfactory outcomes, or properly accounted for the harms,” said German.

New York City, Oakland, Calif., and other communities across the country have been trying some of the alternatives covered in Exploring Alternative Approaches to Hate Crimes. The report calls for greater investments in such programs to allow communities to experiment with methodologies that might more effectively mitigate the harms from hate crimes.

The report, put together by Stanford Law School students enrolled in the policy practicum, drew on findings from a March 2020 convening at Stanford Law School of experts in the fields of criminal law, civil rights, community advocacy and restorative justice. It also includes research from law, criminology, and other fields.  For the report, the Stanford Law School policy lab defined a “hate crime” as a criminal offense motivated by hostility against certain actual or perceived characteristics of a victim’s identity, including race or ethnicity, religion, gender, national origin, and sexual orientation, among others.

Most states and the federal government have enacted laws that create “stand-alone” offenses or impose sentence enhancements for crimes with a bias motive.  But in recent years, some community groups and racial justice advocates have questioned whether this approach relies too heavily on carceral solutions, especially through sentence enhancements, and whether current solutions sufficiently respond to the unique individual and community harms of hate crimes....

The report assessed restorative justice programs for hate crimes and social services programs for individuals and communities that are increasingly piloted across the country, both as substitutes for, or to exist alongside, the traditional legal approach.  The report found that, while challenging questions remain as to program design, restorative justice programs may offer a promising alternative to the traditional law enforcement approach to hate crimes.  It notes that “these programs should be subjected to rigorous study, to ensure they are implemented with the necessary attention to the constitutional rights of accused parties and the safety and well-being of impacted individuals and communities.

The report also found that support for social services and grant programs can be established, retooled, and better staffed and funded to ensure that individuals and communities affected by hate crimes receive adequate, culturally competent resources.  “Our work details alternative approaches that impacted communities are beginning to explore, which are designed to repair more directly the harms bias-motivated crimes inflict,” said German.  “We hope this report becomes a resource for communities looking for more effective methods of responding to hate crimes."

Bureau of Justice Statistics releases "Capital Punishment, 2019 – Statistical Tables"

This morning the Justice Department's Bureau of Justice Statistics released this new report with data on the administration of capital punishment in the United States through the end of 2019. As I have noted before, though BJS sometimes provides the best available data on criminal justice administration, in the capital punishment arena the Death Penalty Information Center tends to have more up-to-date and more detailed data on capital punishment.  In any event, this new BJS report still provides notable and clear statistical snapshots about the death penalty, and the document sets out these initial "highlights":

• Eleven states and the BOP received a total of 31 prisoners under sentence of death in 2019.

• Twenty-one states and the BOP removed a total of 65 prisoners from under sentence of death by means other than execution.

• The New Hampshire legislature repealed the death penalty provision of the capital murder statute, but the repeal was prospective, leaving one male prisoner under a previously imposed sentence of death.

• The New Mexico Supreme Court declared the state capital statute unconstitutional, and the two prisoners under sentence of death were resentenced to life.

• The largest decline in the number of prisoners under sentence of death in 2019 occurred in California (down 11 prisoners), followed by Pennsylvania (down 8), Texas (down 7), and Tennessee (down 6).

• During 2019, the number of prisoners held under sentence of death increased in three states: North Carolina (up 3), Ohio (up 2), and South Carolina (up 1).

• Ninety-eight percent of prisoners under sentence of death were male.

• Among prisoners under sentence of death at year-end 2019, about 56% were white and 41% were black.

• Among prisoners under sentence of death at year-end 2019 with a known ethnicity, 15% were Hispanic.

• As of December 31, 2019, prisoners under sentence of death had been on death row for an average of 18.7 years.

• Prisoners executed during 2019 had been on death row for an average of 22 years.

Three more great new essays in Brennan Center's "Punitive Excess" series

I highlighted here last month a new essay series assembled by the Brennan Center for Justice titled "Punitive Excess."  I am pleased to see that a essays continue to be added to the series on a regular basis, and here are the three most recent entries everyone should be sure to check out:

• "Treating All Kids as Kids" by Kim Taylor-Thompson

• "What Did You Call Me?" by Rahsaan “New York” Thomas

• "The Federal Funding that Fuels Mass Incarceration" by Lauren-Brooke Eisen

Prior related posts:

• Brennan Center launches notable new essay series titled "Punitive Excess"
• More notable new essays in Brennan Center's "Punitive Excess" series

FAMM urges AG Garland to prevent those on home confinement during pandemic from being returning to federal prison

In various prior posts (some linked below), I have covered the Office of Legal Counsel memo released at the very end of the Trump Administration which interprets federal law to require that certain persons transferred from federal prison to home confinement pursuant to the CARES Act be returned to federal prison when the pandemic ends.  The folks at FAMM have done a great job spotlighting the problems this OLC memo creates, and Kevin Ring at FAMM today sent this new extended letter to Attorney General Garland urging him to address these matters "as quickly as possible."  Here are excerpts from the letter:

Dozens of members of Congress who voted for the CARES Act have written to you, clarifying that they did not intend people on home confinement to return to prison.  The BOP did not tell people who were transferred to home confinement that they might have to return. Corrections officers were unaware of the possibility....

There is no public safety reason to require anyone abiding by the terms of their transfer to be reincarcerated.  The BOP screened each one of the approximately 4,000 people currently on home confinement using strict criteria established by Attorney General William Barr.  Those deemed to pose no danger to the community now wear ankle monitors and are subject to rigorous surveillance.  Some have been home for a full year. Only a vanishingly small percentage have violated the terms of their confinement, according to the BOP....

Attorney General Garland, we urge you to end now the needless suffering and extreme stress these families are experiencing.  You can do so in a number of ways.

First, you have the authority to rescind or overrule the OLC memo.  We, along with a bipartisan group of members of Congress and advocacy organizations, have urged and continue to urge you to do so.

If you feel constrained to follow the OLC’s opinion, you can and should recommend to the president that he act now to grant clemency to anyone who is serving CARES Act home confinement and has complied with the rules of their supervision.  The Department then should do everything it can to support clemency petitions, including ensuring the speedy review and transfer of cases to the president.  The president has expressed a desire to use his clemency authority more robustly.  Commuting the sentences of these extraordinarily low-risk people would be a smart and easy start.

The Department could use its existing authority to keep people home by transferring those eligible for the Elderly Offender Home Detention Program.  It also could use its authority to seek compassionate release for those on CARES Act home confinement, especially those who have years left on their sentences.  At a minimum, the Department should direct that U.S. Attorneys not oppose compassionate release motions brought by people in those circumstances.

In all cases, the Department should direct the BOP to use its furlough authority to prevent anyone whose status is not resolved before the end of the emergency period from having to return to prison.  This approach also would be useful for those people nearing the end of their sentences and for whom the measures discussed above are not necessary because they will shortly be eligible for transfer under 18 U.S.C. § 3624(c).

Some prior recent related posts:

• Notable OLC opinion on "Home Confinement of Federal Prisoners After the COVID-19 Emergency" 
• Headlines providing more reminders of how COVID meets mass incarceration
• Spotlighting effectiveness of home confinement under CARES Act and concerns about OLC memo disruption
• Notable advocacy for Prez Biden to use his clemency power to ensure those released into home confinement need not return to prison 

Vera Institute reports on "People in Jail and Prison in Spring 2021" and finds US total below 1.8 million

The Vera Institute of Justice is continuing to do terrific work on the challenging task of collecting (close-to-real-time) data on the number of people in state and federal prisons and jails.  Vera is now regularly reporting much more timely information on incarceration than the Bureau of Justice Statistics, which often releases data that lags a full year or more behind.  Impressively, and as reported in this post, Vera produced a great report titled "People in Jail and Prison in 2020" in January, and now it already produced this updated report titled "People in Jail and Prison in Spring 2021" with the latest nationwide prison and jail population headcounts. Here is part of the start of the report (with a few sentences I have emphasized):

When the COVID-19 pandemic was first detected in the United States, it was clear that the virus would cause widespread suffering and death among incarcerated people. Advocates were quick to call for prison and jail releases. However, a little more than a year later, decarceration appears to have stalled.  After an unprecedented 14 percent drop in incarceration in the first half of 2020 — from 2.1 million people to 1.8 million — incarceration declined only slightly from fall 2020 to spring 2021.  Generally, states that started 2020 with higher incarceration rates made fewer efforts to reduce incarceration through spring 2021. This pattern speaks to the political, economic, and social entrenchment of mass incarceration.

At the federal level, the number of people in civil custody for U.S. Immigration and Customs Enforcement (ICE) is less than one-third of the 2019 population, while the number of people detained for the U.S. Marshals Service (USMS) facing federal criminal charges reached an all-time high.

Jail populations in rural counties dropped by 27 percent from 2019 through March 2021, the most of any region.  The historic drop in the number of people incarcerated was neither substantial nor sustained enough to be an adequate response to the pandemic, and incarceration in the United States remains a global aberration.

Recent evidence from the Bureau of Justice Statistics also shows that racial inequity worsened as jail populations declined through June 2020.  Vera Institute of Justice (Vera) researchers collected data on the number of people incarcerated throughout 2020 and into early 2021 to provide timely information about how incarceration is changing in the United States during the COVID-19 pandemic.  Vera researchers estimated the incarcerated population using a sample of approximately 1,600 jail jurisdictions, 50 states, and the Federal Bureau of Prisons, the USMS, and ICE.

I find all this data fascinating, and I am actually encouraged that prison populations as reported by Vera is now below 1.2 million, which is the lowest it has been in over 25 years (and probably the lowest per capital in more than three decades).  This Vera report is clearly eager to stress that incarceration is still "mass" in the US, but I am still eager to note that we are still generally trending in the right direction.  Whether that will hold as we get closer to getting past COVID, as as murders and gun assaults are spiking, is the story I will be watching closely in the months and years ahead.

"Election Contestation and Progressive Prosecutors"

The title of this post is the title of this new paper now on SSRN authored by Ronald Wright, Jeff Yates and Carissa Byrne Hessick. Here its abstract:

A group of change-oriented chief prosecutors use the label “progressive prosecutor” to describe their distinctive approach to the prosecutor’s work.  But it is not yet clear how deep those proposed changes go.  Did media accounts focus on vivid but exceptional election campaigns, or did the last decade deliver a widespread change in U.S. prosecution leadership? We explore this question by collecting the results in prosecutor elections in 200 high-population districts in the United States, between 2012 and 2020.  Prosecutor elections have traditionally been sleepy affairs, where incumbents most often ran unopposed and won re-election more often than incumbents in other public offices.  Setting aside the difficult issues of measuring how “progressive” each candidate might be, we simply ask whether prosecutor election campaigns are becoming more contested, now that progressive prosecutors offer an alternative vision of the job.

Based on our data, elections in these high-population districts did in fact become more contested over the last decade.  The likelihood that an incumbent would run unopposed fell by roughly eight percent for each passing year.  This steady disappearance of uncontested elections applied most strongly to non-white incumbents.  The incumbent win rate also fell by significant amounts during this period.  Today, prosecutor elections involve more candidates presenting more varied and viable choices.  Prosecutor elections reveal a growing popular interest in and control over local criminal justice policy.