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August 14, 2021

Lots of deep thoughts for sentencing fans in Summer 2021 issue of New Criminal Law Review

The latest issue of the New Criminal Law Review is committed to "New Topics in Sentencing Theory."  Here are the articles in the issue:

"Editor’s IntroductionNew Topics in Sentencing Theory" by Jacob Bronsther

"Algorithmic Decision-Making When Humans Disagree on Ends" by Kiel Brennan-Marquez and Vincent Chiao

"The Limits of Retributivism" by Jacob Bronsther

"Prosecutor Mercy" by Lee Kovarsky

"After the CrimeRewarding Offenders’ Positive Post-Offense Conduct" by Paul H. Robinson and Muhammad Sarahne

"The Conventional Problem with Corporate Sentencing (and One Unconventional Solution)" by W. Robert Thomas

"Bringing People DownDegrading Treatment and Punishment" by John Vorhaus

August 14, 2021 in Purposes of Punishment and Sentencing, Recommended reading, Who Sentences | Permalink | Comments (1)

August 13, 2021

Notable look at public health impacts of drug-induced homicide laws in rural North Carolina

I just came across this notable new article in the International Journal of Drug Policy by multiple authored titled "Drug induced homicide laws may worsen opioid related harms: An example from rural North Carolina." Here is its abstract:

Drug-induced homicide (DIH) laws typically allow for the prosecution of drug distribution resulting in an overdose fatality as equivalent to homicide or manslaughter. Despite vigorous debate about the appropriateness of DIH laws as a response to overdose, the public health impacts of this increasingly common prosecutorial strategy remain unknown. In this policy analysis, we take up the question of how DIH prosecutions impact local persons and communities through the lens of a high-profile DIH conviction that took place in Haywood County, a rural county located in the Appalachian region of western North Carolina. Describing insights gained from two unrelated but overlapping studies carried out in Haywood County, we identify several plausible mechanisms through which DIH laws may negatively impact public health. Among these are disruptions to the local drug market and deterrence from calling 911 when witnessing an overdose. With the number of DIH prosecutions growing rapidly, more research on the public health impacts of DIH laws is urgently needed. 

A few of many prior related posts:

August 13, 2021 in Drug Offense Sentencing, Offense Characteristics | Permalink | Comments (0)

"Restorative Retributivism"

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

The current criminal justice moment is ripe for discussion of first principles.  What the criminal law is, what it should do, and why society punishes is as relevant as ever as communities reconsider the reach of the criminal law and forms of punishment like incarceration.  One theory recently put forth — reconstructivism — purports to offer a descriptive and normative theory of the criminal law and punishment while critiquing the ills of the American system.  It comprehends the criminal law and punishment as functional endeavors, with the particular goal of restitching or “reconstructing” the social fabric that crime disrupts.  In particular, reconstructivism is a social theory of the criminal law, prioritizing solidarity rather than a moral conception of the common good.  Drawing from a line of thinkers, from Aristotle to Hegel to Durkheim, reconstructivism claims to be distinctive and uniquely equipped to explain what the criminal law is and what it should do, as opposed to retributivist or utilitarian based theories.  It claims to more richly account for the social effects of punishment that plague the current system, unlike duty-based theories of retribution and the cold instrumentality underlying utilitarian-based punishment that has made criminal justice impersonal and shortsighted.

This Article critiques reconstructivism’s core claims and presents an alternative theory of punishment that contains insights for the current moment.  While reconstructivism critiques the failures of common punishment theories to account for the social nature and effects of punishment, it fails to account for forms of retributivism that are not deontological.  In particular, teleological retributivism, or more simply phrased, “restorative retributivism,” already contains the descriptively and normatively restorative elements present in reconstructivism.  Its conception of the common good rests on the inherently social nature of human affairs and accounts for the solidarity prioritized by reconstructivism.  Whereas the reconstructivist prioritizes the socially and culturally constituted, the restorative retributivist seeks to emphasize shared moral intuitions, which social realities inform, but not to the exclusion of other considerations.  This distinction has implications for how each theory might critique modern criminal law and punishment.  For example, restorative retributivism would view the expansion of the criminal law—both in terms of substance and administration — skeptically, and the modern approach to punishment — both in theory and its carceral form — as contrary to human dignity and too focused on controlling risk rather than promoting individual and social flourishing.  This critique, like reconstructivism, has much to offer in the era of the carceral state and can help to reorient punishment to the broader good.  It shifts the focus away from control and risk management to dignity and flourishing, leaving room for community involvement, humility in judging, and de-criminalization.  In sum, reconstructivism and restorative retributivism are relatives, and both helpfully emphasize the social implications and consequences of the criminal law and punishment.

August 13, 2021 in Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (0)

August 12, 2021

Senators Durbin and Booker write to Prez Biden requesting "immediate action" to prevent home confinement cohort from facing return to prison

As detailed in this new Hill article, "two top Democrats on the Senate Judiciary Committee are calling on President Biden to quickly adopt a plan to keep thousands of federal inmates who were transferred to home confinement during the pandemic out of prison."  Here is more:

Sen. Dick Durbin (D-Ill.), the committee's chairman, and Sen. Cory Booker (D-N.J.), who chairs a subcommittee on criminal justice, are urging Biden in a letter sent to the White House on Thursday to use the "ample executive authority" at his disposal to ensure that those on home confinement are not sent back to prison.

"Given the breadth of available executive authority, no person who has successfully transitioned to home confinement should be required to return to federal prison," Durbin and Booker wrote in the letter, which was shared with The Hill.  "The uncertainty of the current situation unnecessarily interferes with the efforts of those on home confinement to rebuild their lives and participate in our economic recovery.  With the goal of facilitating successful community reentry, we urge you to act immediately to resolve this issue and enable those on release to move forward with their lives."

The full two-page letter is available at this link, and here are excerpts:

We respectfully request that your Administration take immediate action to ensure that thousands of individuals who have successfully transitioned to home confinement from federal prison during the pandemic are not returned to prison without cause.  Your Administration has ample executive authority to immediately provide the certainty these returning citizens deserve as they reintegrate into their communities, reunite with their families, and join in rebuilding our economy....

On January 15, 2021, in the last days of the Trump Administration, the Department of Justice Office of Legal Counsel issued a memorandum opinion entitled “Home Confinement of Federal Prisoners After the COVID-19 Emergency” (“OLC opinion”).  The OLC opinion incorrectly found that following the emergency period of the pandemic, BOP must recall federal inmates released to home confinement pursuant to the CARES Act and require these inmates to complete their sentences at BOP facilities. In fact, the CARES Act does not require or permit BOP to recall these prisoners.

On April 23, 2021, we asked Attorney General Garland to rescind the OLC opinion, and are awaiting his response.  However, the opinion does not prevent you from acting. We urge you to use your unfettered pardon power to immediately commute the sentences of those on home confinement pursuant to the CARES Act.  These individuals, who were released only after careful vetting by BOP, have successfully transitioned to home confinement.  They have reunited with family, obtained jobs, and are abiding by the conditions of their release.

Additional executive authorities are also available. BOP can provide relief for certain individuals through prerelease home confinement, under 18 U.S.C. § 3624(c)(2), and the Elderly Home Detention Pilot Program, pursuant to 34 U.S.C. § 60541(g). For those who do not qualify for those provisions, BOP can recommend, and DOJ should support, compassionate release pursuant to 18 U.S.C. 3582(c)(1)(A).  Compassionate release is authorized whenever extraordinary and compelling reasons warrant a sentence reduction, and the once-in-a-century global pandemic that led to these home confinement placements certainly constitutes such an extraordinary and compelling circumstance.

Some of many prior related posts:

August 12, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Another round of terrific essays at new Inquest website

I am at risk of sounding like a broken record here as I keep blogging about the great new website Inquest, which describes itself as "a forum for advancing bold ideas to end mass incarceration in the United States."  But even though I have already flagged nearly a dozen of the great essays that were at the site before this week, I still feel compelled to add this post to spotlight these three more must-reads added this week:

From Charles Fried, "A Failure of the Imagination: Like torture and the death penalty, mass incarceration is life-destroying. And indefensible."

From Darcy Covert & A.J. Wang, "A Most Carceral Friend: The Justice Department’s top Supreme Court lawyer is far more committed to helping prosecutors win convictions and keep people locked up than to 'doing justice'."

From Colin Doyle, "The Feature Is the Bug: For all the criticism they get, algorithms can be unlikely allies in exposing deep, structural injustices that entrench mass incarceration."

August 12, 2021 in Recommended reading, Who Sentences | Permalink | Comments (0)

Highlighting the persistent problems from the US's high recidivism rate

Liz Benecchi has this effective new piece at the Harvard Political Review under the headline "Recidivism Imprisons American Progress." I recommend the full piece, and here are excerpts:

Each year, more than 600,000 individuals are released from state and federal prisons. Another nine million are released from local jails.  Within three years of their release, two out of three former prisoners are rearrested and more than 50% are incarcerated again.  This process of previously convicted criminals reoffending and reentering the prison system is known as recidivism.

Recidivism clogs the criminal justice system. Without employment opportunities and bare necessities such as housing, food, or clothing, successful reentry into society seems nearly impossible for former prisoners.

America’s recidivism crisis is far more alarming than any other democratic country in a similar economic bracket.  If prison were teaching the “lessons” corrections workers claim it does, it is concerning that so many of the same prisoners end up back behind bars.  The country’s high recidivism rate alone demonstrates that our prisons are as ineffective as they are inefficient, a sobering reality which calls for a reimagined criminal justice system....

Since the 1960s, the U.S. incarceration rate has more than tripled. Defunding rehabilitation in our justice systems directly correlates with the increase in the incarceration rate.

To put it plainly, unhealthy minds can’t make healthy choices.  The reality is 37% of incarcerated individuals and 44% of those in jail have been diagnosed with a mental health illness.  Yet, 66% of prisoners reported not receiving any form of mental health care during the full length of their incarceration.  With more accessible mental health care and substance abuse recovery for prisoners, they can be properly diagnosed and receive comprehensive treatment.  With these revamped forms of relief and stabilization, the probability that those with mental illness relapse into destructive habits is far more unlikely than if they receive no treatment at all. Our justice system has an obligation to prepare prisoners for a safe and successful reintegration, a process which starts with a healthy mind.

Prisoners who participate in education programs have a 43% lower chance of being reincarcerated than those who do not, and for every dollar spent on prison education, the government saves four to five dollars on the costs of reincarceration. Education can do wonders, and if incarcerated people left the system with degrees and hard educational skills, it would be far less difficult for them to secure and maintain steady jobs. Besides allowing the formerly incarcerated to pursue a job, education — whether that be through adult literacy, GED, or post-secondary programs — inherently shapes one’s decision-making abilities....

When prisoners are released in Norway, they stay out of prison. Norway has one of the lowest recidivism rates in the world at 20%.  The U.S. has one of the highest: 76.6% of prisoners are rearrested within five years.  Among Norway’s prison population that was unemployed prior to their arrests, they saw a 40% increase in their employment rates once released.  The country attributes this to its mission of rehabilitation and reemergence into society through its accepting and empathetic approach....

Today’s recidivism crisis calls for a paradigm shift from prisons as punitive institutions to rehabilitative ones. Implementing the rehabilitating practices of prioritizing mental health care, education, and the process of creating a prison-to-work pipeline would lower the rates of recidivism in the United States. Lower rates of recidivism do not singularly benefit society by reducing the rate of crime but also by reducing prison populations, saving taxpayers’ dollars, and most pertinently, ensuring that prisons are serving their purpose of reform and improvement.

August 12, 2021 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (0)

August 11, 2021

Part 3 of Prof Slobogin discussing Just Algorithms

6a00d83451574769e20282e1172fad200b-320wiIn this recent post, I explained that I asked Prof Christopher Slobogin to share in a set of guest posts some key ideas from his new book, Just Algorithms: Using Science to Reduce Incarceration and Inform a Jurisprudence of Risk.  Here is the third and final post of this set (following the first and second).

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In two previous blogs about my new book, Just Algorithms: Using Science to Reduce Incarceration and Inform a Jurisprudence of Risk (Cambridge University Press), I described its thesis that risk assessment instruments (RAIs) can reduce incarceration in a cost-effective manner, and the “jurisprudence of risk” it advances that aims to ensure accurate and fair instruments that, among other things, avoid racially disparate outcomes.  To take full advantage of risk assessment’s potential for curbing incarceration and rationalizing sentencing, however, we must also rethink our current punishment regime, which is another goal of the book.

In the past 50 years, a large number of states have moved away from indeterminate sentences controlled by parole boards toward determinate sentencing, which shifts power to prosecutors who can now essentially dictate the sentence received after trial through the charging decision.  Most of the states that have not adopted determinate sentencing have effectively gone in the same direction by significantly circumscribing the authority of parole boards to make release decisions.  These changes were understandable, given the dispositional disparities that occurred with indeterminate sentencing, the checkered history of parole boards, and the difficulty of assessing risk and rehabilitative potential.

With the advent of more accurate and objective predictive algorithms, however, indeterminate sentencing should be given a second chance. More specifically, while judges should still impose a sentence range that is determined by desert, risk-needs algorithms should be instrumental in determining whether offenders who are imprisoned stay there beyond the minimum term of that sentence.  Sentencing would no longer be based on convoluted front-end calculations which attempt to divine the precise culpability of the offender, tempered or enhanced by the prosecutor’s or the judge’s speculative intuitions about deterrence, risk or rehabilitative goals.  Rather, after the judge imposes the retributively-defined sentence range based on the charge of conviction, offenders would serve the minimum sentence (which for misdemeanors and lower level felonies may not involve prison), and only be subject to prolonged restraint if they are determined to be high risk via a validated RAI.  In this form of limiting retributivism, desert would set the range of the sentence, risk its nature and duration.

With this type of sentencing system, not only will the arbitrariness of the old parole-driven scheme be reduced, but the power structure within the criminal justice system will be profitably re-oriented.  Today, the plea bargaining process allows prosecutors to threaten draconian sentences that bludgeon defendants, even innocent ones, into accepting convictions without trial.  If, instead, post-trial dispositions within the sentence range depend on a parole board’s determination of risks and needs, the ultimate disposition after a trial will be unknowable, and prosecutorial bargaining power inevitably would be reduced. Defendants can turn down prosecutorial offers with virtual impunity if they are considered low risk.  And even high risk defendants might want to roll the dice with the parole board. Innocent people would be much less likely to plead guilty, and guilty people would be much less likely to acquiesce to harshly punitive bargains.  The prosecutor’s main leverage will come from offers of reduced charges or alternatives to prison, because with parole boards controlling release, threats to recommend the maximum sentence to the judge will be meaningless.

These proposals may appear to be radical. But in fact they merely reinstate a version of the sentencing regimes that existed in much of this country before the middle of the twentieth century, when dispositions were more flexible and plea bargaining and guilty pleas were less dominant.  At the same time, a key difference in these proposals, and the primary reason rejuvenating indeterminate sentencing is justifiable, is the reliance on risk assessment algorithms.  Without them, judges and parole boards are simply guessing about dangerousness, and their default judgment — absent heroic efforts to resist public pressure and normal human risk-averseness — will be to find that offenders pose a high risk of reoffending.  With them — and assuming their results are treated as presumptive — judges who refuse to imprison an offender and parole boards that make a release decision can point to known base rates (which, in the case of violent crime, are very low) and can blame the algorithm if things go awry.

The overarching hypothesis of this book is this: Whether implemented prior to trial in lieu of the bail system, or post-conviction in lieu of unstructured predictive decision-making, just algorithms can be a central component of any effort to reduce the human and financial cost of incarceration, without sacrificing public safety.  That hypothesis may be wrong, but it is worth a fair test.  Because when developed and used in a manner consistent with a coherent jurisprudence of risk, algorithms could be the single most potent mechanism we have for bringing about real reform of the American criminal justice system.

I want to thank Doug Berman again for letting me describe my book on his Sentencing Law & Policy Blog.

August 11, 2021 in Procedure and Proof at Sentencing, Recommended reading, Who Sentences | Permalink | Comments (0)

"The Case for Pattern-and-Practice Investigations Against District Attorney’s Offices"

The title of this post is the title of this new article authored by Rory Fleming.  Here is its abstract:

Prosecutorial misconduct is a serious issue and one that is notoriously hard to combat.  Frustrated with the inaction from state bars, reformers have embraced alternative accountability strategies, such as prosecutor elections and civilian review boards.  Another tool for additional accountability is the pattern-and-practice investigation under 42 U.S.C. § 14141.  Frequently used as a federal intervention tool against errant police departments, the statute has only been used the local prosecutor context once.  Even so, it has untapped potential as a tool to make consistently high-problem local prosecutor's offices comply with their ethical duties under the rules in Brady, Batson, and other Supreme Court decisions.  Upon finding that the evidentiary threshold of a pattern of practice of constitutional violations has been met, the Justice Department can negotiate a settlement agreement that legally binds the local prosecutor's office to take action to ameliorate the issues leading to the status quo.  Several factors, such as a local prosecutor's jurisdiction experiencing a particularly high number of reversals due to misconduct and striking a particularly high number of minorities during voir dire, should inform DOJ's priorities, if it decides to act. 

August 11, 2021 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

New Minnesota law provides for prison alternatives for veterans involved in lower-level offenses

In a number of prior posts (some linked below), I have spotlighted discussions and debates over whether and how past military service can and should be brought to bear at sentencing.  Against that backdrop, I was intrigued to see this local report on a new state law headlined "Minnesota officials laud Veterans Restorative Justice Act as an 'opportunity to have another path'."  Here are the particulars:

Minnesota veterans that commit a criminal offense as a result of a service-related condition could be granted a pathway to restitution without jail time under a measure approved by the Legislature and signed into law by Gov. Tim Walz....

The so-called Veterans Restorative Justice Act sets up alternate courses through the criminal justice system for veterans that struggle with injuries, substance abuse, post-traumatic stress disorder, military sexual trauma or chemical exposure.  Veterans facing lower-level offenses would be eligible to be placed on probation and complete rehabilitation and county programming rather than going to jail.  And those who completed their rehabilitation and treatment requirements could see their charges wiped away under the program.

Veterans courts allow for similar opportunities in certain parts of the state, but the law will make those options available statewide, the law's supporters said.  "This is an opportunity for those veterans that are having those difficulties with the reintegration to have some help and assistance, something other than just going to jail, this gives them an opportunity to have another path," Department of Veterans Affairs Commissioner Larry Herke said.

Jeff Johnson, a Ramsey County Veterans Court graduate, said completing the treatment and rehabilitation programs required through the specialty court helped him reacclimate to civilian life after 24 years of active duty service. "When I got out, I'll be honest with you, even though I grew up here in Minnesota ... I felt like a Martian. It takes a lot of adjustment to figure out the society I hadn't participated in in 24 years," Johnson said. "(Veterans Court) is not a place where a veteran gets his or her life back, not in the least. They get a new life."

Advocates spent years attempting to pass the proposal in St. Paul before the divided Legislature agreed to advance it earlier this year.  And both Democrats and Republicans on Tuesday commended the veterans advocacy organizations for keeping up the push to get the proposal through the Statehouse.

Some (of many) prior related posts:

August 11, 2021 in Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0)

Notable accounting of rarity of released juvenile lifers getting in trouble again in Michigan

This local story from Michigan, headlined "Crime by ‘juvenile lifers’ after prison ‘very rare,’ state says," provides an interesting overview of how juve lifers have been faring after release in the Wolverine State. Here are the details:

When a shotgun-toting convicted murderer held police at bay for seven hours in Barry County, it prompted Target 8 to check into the records of other “juvenile lifers” released from prison.

Timothy Riddle was 15 years old when he killed an elderly Wayne County woman in 1988 while robbing her home. Riddle served 28 years in a Michigan prison before he was released in 2017, after the U.S. Supreme Court ruled mandatory life sentences for juveniles unconstitutional. His parole ended in early November 2019 and records show his run-ins with police began less than two months later. Since then, he’s been arrested eight times for crimes ranging from shoplifting to larceny and assault.

Riddle was wanted for a series of break-ins Wednesday when Hastings police spotted him and chased him through Barry County. The 48-year-old ultimately barricaded himself for seven hours inside a gas station in the small town of Woodland. He fired a shot inside the store, but police said it appeared he was not trying to hit anyone. No one was injured and Riddle was arrested.

According to the Michigan Department of Corrections, 142 juvenile lifers have been released from prison following resentencing per the U.S. Supreme Court decision. Riddle is the only known arrest. “This is a very rare case,” wrote Chris Gautz, an MDOC spokesperson, in an email exchange with Target 8.

In Michigan, former prisoners are considered recidivists — or repeat offenders — if they end up back in prison within three years of their release. “Most of the (juvenile lifer) releases are too current to be tracked for ‘recidivism,’ (but) overall, this population appears to do well on supervision before discharging from our jurisdiction,” Gautz said.

While MDOC may deem it too early to assess recidivism rates among former juvenile lifers, attorney Deborah Labelle noted the rate would be less than 1%. That’s compared to a 26% recidivism rate among the general prison population.

“Mr. Riddle is the only juvenile lifer that I am aware has even been arrested,” Labelle wrote in an email to Target 8. “(Juvenile lifers’ recidivism) is extraordinarily low,” Labelle said. “There are many who are having spectacular achievements and many more who have reentered and are working and raising families, helping nieces, nephews and siblings, while they build their lives.”

Labelle is an Ann Arbor attorney who fought the state on behalf of hundreds of juvenile lifers in Michigan prisons. So far, the state says 258 people have been resentenced, 142 of whom have since been released from prison.

Labelle spoke of one former juvenile lifer who recently completed college in Arizona and works as a counselor. She said another is working for a prosecutor’s office and applying to law school after getting his master’s in social work....

Even with the many successes, advocates said more resources are needed to help former juvenile lifers make the transition back into society. “What we see time and time again is that people do need one-on-one support,” said Marilena David-Martin of the State Appellate Defender Office. “It’s not easy to come home from prison after serving 40 years and then figure out how to be.”

August 11, 2021 in Assessing Miller and its aftermath, Reentry and community supervision | Permalink | Comments (0)

August 10, 2021

Democratic Senators praise AG Garland's capital moratorium and urge additional steps

As reported in this Hill article, a group of 17 Democratic Senators sent a notable letter to AG Garland this week in which they "voiced their approval of Garland's decision to issue a moratorium on federal executions while the Department of Justice reviews policies and procedures."  This letter is available at this link, and it begins this way:

We commend you for your recent decisions to impose a moratorium on federal executions pending a review of death penalty policies and procedures and to withdraw several notices of intent to seek the death penalty that the Justice Department filed during the Trump Administration.  These are important steps toward ending the injustice of the death penalty.  We urge you to take the additional steps of withdrawing all pending death notices, and authorizing no new death notices, while your review proceeds.

As your memorandum announcing the moratorium recognizes, there are serious concerns about arbitrariness in the application of the death penalty, its disparate impact on people of color, and the alarming number of exonerations in capital cases.  These concerns justify not only a review of the procedures for carrying out the death penalty, but also support halting its use — including prohibiting federal prosecutors from seeking the death penalty — during the review process.

August 10, 2021 in Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

Another reminder that "old law" federal prisoners are still awaiting compassionate equal treatment

A few months ago, I blogged here about an NPR story regrading so-called "old law" federal prisoners, persons who committed federal crimes before November 1987 and who are not currently able to apply to a judge for compassionate release under the FIRST STEP Act. NPR returned to this story recently with this new piece headlined "Some Older Prisoners Aren't Eligible For Compassionate Release. Lawmakers Want Change." Here are excerpts:

COVID-19 has exacted a terrible toll inside America's prisons, spreading there at six times the rate as among the general population. The coronavirus pandemic motivated tens of thousands of incarcerated people to request early release on the grounds that their old age and health troubles made them especially vulnerable.

But the Federal Bureau of Prisons told lawmakers that of the nearly 31,000 prisoners to request compassionate release, the BOP approved just 36. Thanks to Congress, many had another option.  The First Step Act gave them the opportunity to go to court and persuade a judge they should win compassionate release.  More than 3,000 people have won their freedom that way during the pandemic.

But that law overlooks a small group of people in federal prison who were convicted of crimes before November 1987. One of them is Kent Clark.  NPR focused on Clark and other "old law" prisoners in a story this year.  Clark's cousin said Clark had lost his memory during his 31 years in prison.  After the story ran, public defender Rahul Sharma finally got Clark's medical records.

"They showed he has moderate to severe dementia, borderline blindness, tooth loss, severe depressive disorder, gout, cardiac arrhythmia and honestly just severe pain throughout his body," Sharma said.  He said Clark had been wandering into other people's prison cells and kept a list of things he needed to remember to do every day, like going to the bathroom and wearing a mask.  "It was found by the facility, by the prison, that he was a real danger to himself, given the severity of his dementia," Sharma said.

Clark has now been moved to a hospital in Florida where he's guarded by corrections officers, with one arm chained to the hospital bed and irons on his legs.  The warden has denied Clark's request for compassionate release.  Sharma said Clark, now 66, is deteriorating rapidly.

Senate Judiciary Committee Chairman Dick Durbin, D-Ill., is leading efforts to make "old law" prisoners eligible to petition a judge for compassionate release.  A bill moving through Congress would change the law to make "old law" prisoners eligible to petition a judge for compassionate release.  The Senate Judiciary Committee advanced the measure by a bipartisan vote of 14-8 in May.

Democrats hope to bring it to the full Senate this fall, saying the bill would fix a glaring injustice.  Senate Judiciary Committee Chairman Dick Durbin, D-Ill., is leading the charge.  "'Old-law' offenders are some of the most vulnerable and deserving of relief in federal prisons," Durbin said in a written statement.  "There is no logical or moral reason to exclude these offenders from the opportunity to petition the court for compassionate release."  Durbin called it a "modest, but necessary" reform and pointed out that the top Republican on the committee, Chuck Grassley of Iowa, is on board.

But some Republican senators, like Arkansas' Tom Cotton, are resisting.  "Most of this bill is just an expansion of criminal leniency policies for serious offenders under the guise of protecting inmates," Cotton said at a committee meeting this summer.

Mary Price, the general counsel of FAMM, a group that advocates for incarcerated people and their families, said that giving people in prison the option of petitioning a judge for release is not a "get-out-of-jail-free card."  Indeed, Price said, only about 20% of people in prison who sought compassionate release during the pandemic have been approved by judges.

August 10, 2021 in FIRST STEP Act and its implementation, Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (0)

Earned time credits set up by FIRST STEP Act subject to notable litigation

Though easily forgotten with all the COVID era issues and concerns, one the biggest and potentially most consequential elements of the FIRST STEP Act was its creation of a system of "earned time credits."   This part of the Act would enable certain inmates under certain circumstances to earn increased time in pre-release custody (i.e., to move from prison to a halfway house and/or home confinement).  I recall thinking at the time of FIRST STEP enactment that a robust approach to "earned time" could prove to be very consequential for incarcerated individuals while a limited approach to "earned time" could significantly reduce its potential and importance.  Against that backdrop, I am not surprised to see this new Reuters piece headlined "U.S. Justice Dept clashes with inmates over credits to shave prison time."  Here are basics:

The U.S. Justice Department asked a judge on Tuesday to deny a bid by four low-level federal inmates to qualify for early release under a new criminal justice reform law that allows shortened prison terms through recidivism-reduction programs.

In the U.S. District Court in Oregon, federal prosecutors said no program or activity the inmates took part in qualify for earned time credits. The inmates' public defender and some lawmakers have said the Bureau of Prisons' (BOP) criteria are too strict....

At issue is a provision from the 2018 First Step Act, which aims to ease harsh sentencing for non-violent offenders and reduce recidivism. The BOP may award 10 or 15 days' credit for every 30 days of participation in recidivism-reduction or activities such as academic classes or certain prison jobs. In a January 2020 proposal, the BOP defined a day of participation as 8 hours and limited the menu of qualifying programs.

"The math speaks for itself," federal defenders wrote in a January 2021 letter to BOP. "It would take 219 weeks, or over 4 years to earn a full year of credit under the BOP's proposed rule."

In Tuesday's case, lead plaintiff Adrian Cazares is serving a 71-month sentence for cocaine importation. He has held prison jobs such as a painter and an HVAC worker, and completed courses such as anger management, entrepreneurship, and a residential drug abuse program. None of those are on the BOP's approved list, prosecutors said.

"If HVAC work doesn't qualify, what kinds of jobs do?" asked Magistrate Judge John Acosta, noting the program's goal of reducing recidivism and facilitating reintegration into society.

"The ones that are identified by the Bureau of Prisons," federal prosecutor Jared Hager replied, noting the inmates have "not shown entitlement to any credit." The list of qualifying programs and activities will be updated by Attorney General Merrick Garland, he added.

A few prior related posts:

August 10, 2021 in FIRST STEP Act and its implementation, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Another rounds of terrific new essays in Brennan Center's "Punitive Excess" series

highlighted here a few months a terrific new essay series assembled by the Brennan Center for Justice under the title "Punitive Excess."  I am pleased to see that new essays are continuing to be added to the series, and here are the three most recent entries everyone should be sure to check out:

Prior related posts:

August 10, 2021 in Recommended reading | Permalink | Comments (0)

August 9, 2021

Guest post: another critical look at provocative paper claiming to identify the "most discriminatory" federal sentencing judges

Guest-Posting-ServiceI expressed concerns in this recent post about a new empirical paper making claims regarding the "most discriminatory" federal sentencing judges.  Upon seeing this Twitter thread by Prof. Jonah Gelbach about the work, I asked the good professor if he might turn his thread into a guest post. He obliged with this impressive essay:

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This post will comment on the preprint of The Most Discriminatory Federal Judges Give Black and Hispanic Defendants At Least Double the Sentences of White Defendants, by Christian Michael Smith, Nicholas Goldrosen, Maria-Veronica Ciocanel, Rebecca Santorella, Chad M. Topaz, and Shilad Sen.  Doug Berman blogged about it here, and I’m grateful to him for the opportunity to publish this post here.

As I explained in a Twitter thread over the weekend, I have serious concerns about the study.  The most important concerns I raised in that thread fall into the following categories:

  1. Incomplete data
  2. Endogeneity of included regressors
  3. Small numbers of observations per judge
  4. Use of most extreme judge-specific disparity estimates

I’ll take these in turn.

(1) Incomplete Data.  It’s complicated to explain the data, whose construction involve merging multiple large data sets.  In fact, a subset of the authors have a whole other paper about data construction.  In brief, the data are constructed by linking US Sentencing Commission data files to those in the Federal Judicial Center’s Integrated Data Base, which gives them enough to form docket numbers. They then use the Free Law Project’s Juriscraper tool (https://free.law/projects/juriscraper/) to query PACER, which yields dockets with attached judges’ initials for most cases that merged earlier in the authors’ pipeline.  The authors use those initials to identify the judge they believe handled sentencing, using public lists of judges by district.

As involved as the data construction is, my primary concern is simple: the share of cases included in the data set the authors use is very low.  For 2001-2018, there were 1.27 million sentences in USSC data and 1.46 million in FJC data (these figures come from the data-construction paper, which is why they apply to the 2001-2018 period rather than the 2006-2019 period used in the estimation of “Most Discriminatory” judges).  Of these records, the authors were able to match 860k sentences, of which they matched 809k to dockets via Juriscraper.  After using initials to match judges, they have 596k cases they think are matched.  That’s a match rate of less than 50% based on the USSC data and barely 40% based on the FJC data.  The authors can’t tell us much about the characteristics of missing cases, and it’s clear to me from reading the newer paper that the match rate varies substantially across districts.

I think this much alone is enough to make it irresponsible to report estimates that purport to measure individually named judges’ degrees of discrimination.  As a thought experiment, suppose that (i) the authors have half the data, and (ii) if they were able to include the other half of the data they would find that there was no meaningful judge-level variation in estimated racial disparities in sentencing.  By construction, that would render any discussion of the “Most Discriminatory” judges pointless.  Because the authors can’t explain why cases are missed, they have no way to rule out even such an extreme possibility.  Nor do they determine what share of cases they miss for any judge in the data, because they have no measure of the denominator (perhaps they could do this with Westlaw or similar searches for some individual judges).  Their approach to the issue of missing data is to simply assume that missing cases are missing at random:

“One unknown potential source of error is that we cannot determine what percentage of each judge’s cases were matched in the JUSTFAIR database. If this missingness is as-if random with respect to sentencing variables of interest, that should not bias our results, but we have little way of determining this.” (Pages 18-19, emphasis added.)

I believe it is irresponsible to name individual judges as “The Most Discriminatory” on the basis of data as incomplete as these.

(2) Endogeneity.  The authors include as controls in their model each defendant’s guideline-minimum sentence, variables accounting for the type of charge, & various defendant characteristics.  They argue that these variables are enough to deal not only with the enormous amount of missing data (with unknown selection mechanism; see above) but also any concerns that would arise even if all cases were available.  As Doug Berman previously noted here, if prosecutors offer plea deals of differing generosity to defendants of different races, then the guideline minimum doesn’t account for heterogeneity in cases.  And note that if that happens in general, it’s a problem for all the model’s estimates. In other words, even if the particular mechanism Doug hypothesized (sweet plea deals for Black defendants in the EDPA) doesn’t hold, the whole model is suspect if the guidelines variable is substantially endogenous.

There are other endogeneity concerns, e.g., the study includes as regressors variables that capture reasons why a sentence departed from the guidelines — an outcome that is itself partly a function of the sentence whose (transformed) value is on the left hand side of the model.  And as a friend suggested to me after I posted my Twitter thread, the listed charges are often the result of plea bargains, whose consummation can be expected to depend on the expected sentence.  So the guideline minimum variable, too, is potentially endogenous.

(3) Small numbers of observations per judge. The primary estimates on which the claim about particular judges’ putative discriminatory sentencing are based are what are known as random effect coefficients on race dummies.  It’s lengthy to explain all the machinery here, but I’ll take a crack at a simplified description.

The key model output on which the authors make their “Most Discriminatory” designations are judge-level estimated Black-White disparities (the same type of analysis applies for Hispanic-White disparity).  Very roughly speaking, you can think of the estimated disparity for Judge J as an average of two things: (i) the overall observed Black-White disparity across all judges — call this the “overall disparity”, and (ii) the average disparity in the subset of cases in which Judge J did the sentencing — call this the “judge-specific raw disparity”.

For example, suppose that over all defendants, the average (transformed) sentence is 9% longer among Black defendants than among White ones; then the overall disparity would be 9%.  Now suppose that among defendants assigned to Judge J, average sentences were 20% longer for Black than White defendants; then the judge-specific raw disparity would be 20%.

The judge-level estimated disparity that results from the kind of model the authors use is a weighted average of the overall disparity and the judge-specific raw disparity. So in our example, the estimated disparity for Judge J would be a weighted average of 9% (overall disparity) and 20% (judge-specific raw disparity).  What are the weights used to form this average?  They depend on the variance across judges in the true judge-specific disparity and the “residual” variance of individual sentences — the variance that is unassociated with factors that the model indicates help explain variation in sentences.

The greater the residual variance, the less weight will be put on the judge-specific raw disparity.  This is what’s known as the “shrinkage” property of mixed models — they shrink the weight placed on judge-specific raw disparities in order to reduce the noisiness of the model’s estimated disparity for each judge. (I noted this property in a follow-up tweet to part of my thread.)

However, all else equal, greater residual variance also means that variation in judge-specific raw disparities will be more driven by randomness in the composition of judges’ caseload. Because these raw disparities contribute to the model-estimated disparity, residual variance creates a luck-of-the-draw effect in the mode estimates: a judge who happens to have been assigned 40 Black defendants convicted of very serious offenses and 40 White defendants convicted of less serious ones will have a high raw disparity due to this luck factor, and that will be transmitted to the model’s estimate disparity.

How important this effect of residual variance is context-sensitive. The key relevant factors are likely to be the numbers of cases assigned to each judge for each racial group and the size of residual variance relative to the size of variance across judges in true judge-level disparities.

As I wrote in my Twitter thread, I used the authors’ posted code and data to determine that Hon. C. Darnell Jones II, the judge named by the authors as the “Most Discriminatory”, had a total of 103 cases with Black (non-Hispanic) defendants, 37 cases with Hispanic defendants, and 67 with White defendants. Hon. Timothy J. Savage, the judge named as the second “Most Discriminatory”, sentenced 155 Black (non-Hispanic) defendants included in the estimation, 58 Hispanic defendants, and 93 White defendants.  These don’t strike me as very large numbers of observations, which is another way of saying that I’m concerned residual variance may play a substantial role in driving the model-estimated disparities for these judges.

My replication of the authors’ model shows that true judge-specific disparities in the treatment of Blacks and Whites have an estimated variance of 0.055, whereas the estimated residual variance is nearly 30 times higher — 1.59 for a single defendant.  For a judge who sentenced 40 Black and 40 White defendants, this would mean that residual variance would be 2(1.59)/40~0.08 — which is larger than the 0.055 estimated variance in true judge-level disparity.  It’s more complicated to assess the pattern for judges with different numbers of defendants by race, but I would not be surprised if the residual variance component is roughly the same size as the variance in judge-level effects.

In other words, even given the effect of shrinkage, I suspect that “bad luck” in terms of the draw of defendants might well be quite important in driving the judge-specific estimates the authors provide. Even leaving aside the missing-data problem, I think that makes the authors’ choice to name individual judges as “Most Discriminatory” problematic.

Another issue is that the judge-specific estimated disparity (remember, this is the model’s output, formed by taking the weighted average of overall and judge-specific raw disparities) is itself only an estimate, and thus a random variable.  Thus if one picked a judge at random from the authors’ data, it would be inappropriate to assume that the estimated disparity for that judge was the true value. To compare the judge-specific estimated disparity to other judges’ estimated disparities, or to some absolute standard, would require one to take into account the randomness in estimated disparity.  The authors do not report any such estimates.  Nor does the replication code they posted along with their data indicate that they calculated standard errors of the judge-specific estimated disparities.  There is no indication that I can find in either the code or the paper that they investigated this issue before posting their preprint.

(4) The many-draws problem.  Consider a simple coin toss experiment.  We take a fair coin and flip it 150 times. Roughly 98% of the time, this experiment will yield a heads share of 41.6% or greater (in other words, 41.6% is the approximate 2nd percentile for a fair coin flipped 150 times).  So if we flipped a fair coin once, it would be quite surprising to observe a heads share of 41.6% or lower.  But now imagine we take 760 fair coins and flip each of them 150 times. Common sense suggests it would be a lot less surprising to observe some really low heads shares, because we’re repeating the experiment many times.

To illustrate this point, I used a computer to do a simulation of exactly the just-described experiment — 760 fair coins each flipped 150 times. In this single meta-experiment I found that there were 13 “coins” with heads shares of less than 41.6%, just under two percent of the 760 “coins”, roughly as expected.  Given that we know all 760 “coins” are fair, it would make no sense to say that “the most biased coin is coin number 561”, even though in my meta-experiment it had the lowest heads share (36.7%, more than 3 standard deviations below the mean).  We know the coin is fair; it’s just that we did 760 multi-toss experiments, and with that much randomness we’re going to see some things that would be very unlikely with only one experiment.

Leaving aside differences across judges in the number of cases heard, this is not that different from what the authors’ approach entails.  If all judges had the same number of sentences, then they’d all have the same weights on their raw disparities, and so differences across judges would be entirely due to variation in those raw disparities.  If the residual variance component of these raw disparities is substantial (see above), then computing judge-specific model-estimated disparities for each of 760 judges would involve an important component related to idiosyncratic variation.  Taking the most extreme out of 760 model-estimated disparities is a lot like focusing on “coin” number 561 in my illustrative experiment above.

Another way to say this is that even if there were zero judge-specific disparity — even if all judges were perfectly fair — we might not be surprised to see substantial variation in the authors’ model-estimated disparities.

Now, it’s not really the case that all judges gave the same number of sentences, so there’s definitely some heterogeneity due to shrinkage as discussed above, which complicates the simpler picture I just painted for illustrative purposes.  But I suspect there is still a nontrivial “many-tosses problem” here.  Note that this is really an instance of a problem sometimes referred to as “multiple testing” in various statistics literatures; as responders to my Twitter thread noted, one place it comes up is in attempts to measure teachers’ value added in education research, and another is in ranking hospitals and/or physicians.  In other words, this isn’t a problem I’ve made up or newly discovered.

* * *

In sum, I think the paper has several serious problems.  I do not think anyone should use its reported findings as a basis for deciding which judges are discriminatory, or how much.  This is as true for people who lack confidence in the fairness of the system as for any people who doubt there is discrimination.  In other words, the criticisms I offer do not require one to believe federal criminal sentencing is pure and fair.  These criticisms are about the quality of the data and the analysis.

I want to make one final point, as I did in my Twitter thread.  Like the authors of the study, I believe that PACER should be made available to researchers.  Indeed, I recently have written a whole paper taking that position.  But I am very concerned about the impact of their work on that prospect.  The work involves problematic methods and choices and then calls out individual judges for shaming.  In my experience there’s nontrivial opposition to data openness within the federal judiciary, and I fear this paper will only harden it.

August 9, 2021 in Data on sentencing, Detailed sentencing data, Race, Class, and Gender, Who Sentences | Permalink | Comments (14)

Is it problematic for sentencing judges to require the COVID vaccine as a probation condition?

The question in the title of this post is prompted by this new New York Times article headlined "Get a Covid-19 Vaccine or Face Prison, Judges Order in Probation Cases." Here are excerpts:

As cases of coronavirus infections rise in Ohio, some judges have attached unusual conditions for those released on probation: Get a Covid-19 vaccine or face being sent to prison.

On Aug. 4, Judge Christopher A. Wagner of the Court of Common Pleas in Hamilton County told Brandon Rutherford, who was convicted on drug offenses, that as part of his release on “community control,” or probation, he must receive the vaccination within 60 days.

“I’m just a judge, not a doctor, but I think the vaccine’s a lot safer than fentanyl, which is what you had in your pocket,” the judge told Mr. Rutherford, 21, according to a transcript provided by the judge’s office on Monday. “I’m going to order you, within the next two months, to get a vaccine and show that to the probation office,” the judge said. “You violate, you could go to prison.”

On June 22, another Court of Common Pleas judge, Richard A. Frye in Franklin County, gave Sylvaun Latham, who had pleaded guilty to drugs and firearms offenses, up to 30 days to receive the vaccination, according to court records. If Mr. Latham violated that condition and others, he could go to prison for 36 months. Mr. Latham agreed to be vaccinated, the records show.

The sentences were a unique breakthrough in the public health debate taking place in the United States about how civil liberties intersect with mask and vaccination mandates. The judges’ decisions go to the heart of how personal freedoms are being examined through the lens of public health in a pandemic. David J. Carey, the deputy legal director of the American Civil Liberties Union of Ohio, said he saw no “clear cut” violation of civil rights.

“It is a potentially murky area,” he said. “There is certainly a legitimate concern around ordering someone to do something that pertains to their bodily autonomy. They need to have a compelling reason to have to do so.”...

Asked about his decision, Judge Frye said in an email on Monday that he had issued vaccine orders three times so far, and none of the defendants raised medical or religious objections. “Ohio law allows judges to impose reasonable conditions of probation, intended to rehabilitate the defendant and protect the community,” Judge Frye said. He said that, based on medical evidence, the vaccination would protect others and keep those on probation safer as they search for or keep jobs.

Sharona Hoffman, a professor and co-director of the Law-Medicine Center at Case Western Reserve University’s School of Law, said it was unusual to pair sentencing with the vaccine. “Judges get creative in order to keep people out of jail,” she said. “They impose all sorts of sentences and, again, this is to the benefit of the person. And if you are going to be out in the community, you can’t run around infecting people with Covid.”

In some states, such as Georgia, judges have offered reduced sentences if defendants get vaccinated, WSB-TV in Atlanta reports. Early this year, prisoners in Massachusetts were offered the possibility of reduced prison sentences for receiving the vaccine, but the decision was later rescinded....

Judge Wagner, in response to questions on Monday, said in an email that “judges make decisions regularly regarding a defendant’s physical and mental health, such as ordering drug, alcohol, and mental health treatment.” He added that Mr. Rutherford was in possession of fentanyl, “which is deadlier than the vaccine and COVID 19.”

August 9, 2021 in Criminal Sentences Alternatives, Impact of the coronavirus on criminal justice, Who Sentences | Permalink | Comments (2)

Tale of two sentencings highlights disparity and need for for better data

This lengthy new article from Cleveland.com spotlights a local example of sentencing disparity and highlights how this tale contributes to calls for statewide data-focused reforms.  The headline of the article provides a preview: "White woman who stole $250K gets probation, while Black woman who stole $40K goes to jail.  Disparate sentences spark calls for reform."  Here is how the article gets started:

Two Cuyahoga County Common Pleas Court judges doled out disparate sentences this week to women who stole public money in separate cases, reigniting calls to create a statewide sentencing database to ensure judges mete out fair punishments.

A white woman stole nearly $250,000 from the village of Chagrin Falls.  Judge Hollie Gallagher sentenced her on Monday to two years of probation.  A Black woman who stole $40,000 from Maple Heights City Schools went before Judge Rick Bell, who sentenced her Tuesday to 18 months in prison.

Leaders of Black faith organizations, labor organizations, current and former judges and social activist groups all told cleveland.com and The Plain Dealer that the stark difference between the sentences damaged the credibility of the criminal justice system and reinforced the sentiment that judges disproportionately punish people of color or those without means.

All of the leaders called on Cuyahoga County’s judges and judges around the state to join an Ohio Supreme Court pilot project that would create a public database to make transparent how judges sentence defendants and provide guardrails on judicial discretion that often results in unequal justice.  Only 10 of Cuyahoga County Common Pleas Court’s 34 judges have said they plan to sign on to the program. Six of those judges are in their first term on the bench.

“It’s kind of hard to figure how you can end up with results that are so different for similar kinds of actions,” former longtime Cleveland Municipal Court Judge Ronald Adrine said.  “Cases like these point out the need for the system to do a better job of reviewing the data because there’s lots of disparity between the way that people of color and white people are treated. But it doesn’t get captured because nobody’s really looking.”

Ohio Supreme Court Justice Michael Donnelly, who spent 14 years on the Cuyahoga County Common Pleas bench before ascending to the state’s highest court in 2019, and 8th District Court of Appeals Judge Sean Gallagher said the adoption of the database would move the state closer to identifying and correcting issues that contribute to disparities in sentencing.  “Are we satisfied with a system that would allow for two extremely different results like this?” Donnelly asked.  “Is that good policy? Does it make the community more safe, when our sentencing laws allow for that disparity? We need to ask that question in Ohio.”

Both judges said that, while judicial discretion is important, the reaction to this week’s differing sentences shows the state needs to do more to ensure that judges punish people who commit similar crimes more equally.  “If there isn’t faith in the justice system that you’re going to get a fair shake, then that’s the biggest indictment against keeping the things the way they are,” Gallagher said.

A few prior related posts:

August 9, 2021 in Data on sentencing, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

August 8, 2021

Part 2 of Prof Slobogin discussing Just Algorithms

6a00d83451574769e20224df387165200bIn this recent post, I explained that I asked Prof Christopher Slobogin to share in a set of guest posts some key ideas from his new book, Just Algorithms: Using Science to Reduce Incarceration and Inform a Jurisprudence of Risk.  Here is the second of the set.

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In a previous blog post on my new book Just Algorithms: Using Science to Reduce Incarceration and Inform a Jurisprudence of Risk (Cambridge University Press), I made the case for using risk assessments instruments (RAIs) in the pretrial and post-conviction process as a means of reducing incarceration through providing more accurate and cost-effective assessments of the risk of reoffending.  But not all risk assessment instruments are created equal.  Although algorithms, on average, are superior to unstructured judgment when it comes to prediction, many are seriously defective in a number of respects.  A major goal of my book is to provide a set of principles meant to govern the development of these instruments and to guide judges and other criminal justice actors in determining which measures to use and for what purposes.  Influenced by insights gleaned from the algorithms themselves, it advances, in short, a much-needed “jurisprudence of risk” analogous to the jurisprudence of criminal liability that has long governed the definition of crimes and the scope of punishment.

The first part of the book’s title points to one important aspect of this jurisprudence.  If the recommendations in this book are followed, the usual approach taken by legal decision-makers — which is to treat the algorithmic forecast as simply one factor relevant to risk assessment — would generally be impermissible.  “Adjusting” the results of a well-validated RAI, based on instincts and experience, defeats the purpose of using an RAI, especially when the decision-makers’ intuition about risk is based on factors that have already been considered in the tool.  Incorporating human judgment into the risk assessment will usually make matters worse when the RAI meets the basic requirements outlined in this book.  This notion is one meaning — the literal one — of “Just Algorithms.”

The second meaning of that title is even more important.  Properly cabined, predictive algorithms can be just.  Numerous writers have argued to the contrary, pointing in particular to racial disparities among those who are identified as high risk.  But even if such disparities do exist, they do not necessarily make risk algorithms unjust.  This book takes the position that the fairest approach to evaluating risk is to treat people who are of equal risk equally.  The primary goal of an RAI should be to identify accurately those who are high risk and those who are low risk, regardless of color, even if that means that a greater percentage of people of color are identified as high risk.  At the same time, it must be recognized that assessments of risk may be inaccurate if the influence of racialized policing and prosecutorial practices on the validity of assessment instruments is not taken into account.

Another, related complaint about predictive algorithms — one that has special salience at sentencing and other post-conviction settings — is that punishment should never be based on conduct that has not yet occurred, both given the uncertainty of prediction and its insult to human dignity and autonomy.  The point this book makes on this score is, again, a comparative one.  The primary competitor to sentencing that considers risk is a purely retributive system — one that relies solely on backward-looking assessments of criminal conduct and the mental states that accompany it.  But such a system is rife with speculative claims about just desert, and can be remarkably inattentive to the impact of mitigating human foibles.  Properly regulated algorithmic risk assessments, in contrast, can differentiate high and low risk offenders at least as reliably as judges and juries can calibrate culpability, and can do so without abandoning condemnation based on blame, especially if sentences ranges are still based on retributive principles.  The needs part of theassessment can also facilitate the identification of autonomy-affirming and dignity-enhancing treatment programs that help offenders help themselves.

To realize the full potential of RAIs in the sentencing setting, however, the current fixation on determinate sentencing needs to be rethought.  That is the subject of my third and final blog, soon to come.

Prior related post:

August 8, 2021 in Procedure and Proof at Sentencing, Recommended reading, Who Sentences | Permalink | Comments (0)

Highlighting the importance of data to ensure equity in diversion efforts

Regular readers are probably used to hearing me stress the importance of data in various aspects of our criminal justice systems, and so I was pleased to see this new Law360 piece headlined "Data Collection Is Crucial For Equity In Diversion Programs." I recommend the lengthy piece in full, and here is how it starts:

Prosecutorial diversion programs are intended to create equity in the criminal justice system by stopping the incarceration of people who have mental health and substance abuse problems, but without proper data collection, prosecutors can't ensure equity in these programs, experts say.

The Prosecutorial Performance Indicators project, an initiative led by researchers at the Florida International University and Loyola University of Chicago to help prosecutors collect data to improve their methods, recently released a report that looked at racial disparities in the number of people who had their cases diverted from criminal courts to diversion programs, like mental health or drug courts.

According to the report that compared the race and ethnicity of people placed in diversion programs in four prosecutors' offices in Chicago, Jacksonville, Milwaukee and Tampa, even though overall more Black defendants than white were placed in diversion programs in three of the four cities, more white defendants than Black defendants had their felony cases placed in diversion programs in all of the cities.

With this data, prosecutors in these offices can use it to guide their policies and prosecutorial decisions, according to Melba Pearson, director of policy and programs at FIU's Center for Administration of Justice and a PPI co-manager. "While diversion is a great tool, we have to make sure that it's applied equitably, so that includes looking at factors like cost, accessibility [and] how offers are being delivered," Pearson told Law360.

In Jacksonville, the data shows that, from 2017 through 2019, the number of Black defendants that had their misdemeanor cases diverted from prosecution grew because its prosecutor's office implemented a program that gives people charged with misdemeanor traffic violations an opportunity to have their charges dropped.

The full report referenced in this article, which is titled "Race and Prosecutorial Diversion: What we know and what can be done," is available at this link.

August 8, 2021 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Might Alabama become the first state to use nitrogen gas for an execution?

The question in the title of this post is prompted by this new AP article headlined "Alabama says it has built method for nitrogen gas execution."  Here are excerpts:

Alabama told a federal judge this week that it has finished construction of a “system” to use nitrogen gas to carry out death sentences, an execution method authorized by state law but never put into use.

The Alabama Department of Corrections indicated in an Aug. 2 court filing that it is waiting to make sure the nitrogen hypoxia system is ready, before writing procedures for how it will be used. The prison system did not describe how the system would work or give an estimate on when the state may try to use the new execution method.

“The ADOC has completed the initial physical build on the nitrogen hypoxia system. A safety expert has made a site visit to evaluate the system. As a result of the visit, the ADOC is considering additional health and safety measures,” a lawyer for the state attorney general’s office wrote in the court filing.

Alabama in 2018 became the third state — along with Oklahoma and Mississippi — to authorize the untested use of nitrogen gas to execute prisoners. Death would be caused by forcing the inmate to breathe only nitrogen, thereby depriving him or her of oxygen. Lawmakers theorized that death by nitrogen hypoxia could be a simpler and more humane execution method. But critics have likened the untested method to human experimentation.

No state has used nitrogen hypoxia to carry out an execution, and no state has developed a protocol for its use, according to the Death Penalty Information Center.... Alabama currently carries out executions by lethal injections unless an inmate requests the electric chair. As lethal injection drugs become difficult to obtain, states have begun looking at alternative ideas for carrying out death sentences including firing squads and gas.

A few (of many) prior related posts:

August 8, 2021 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (1)