Sentencing Law and Policy

"Inside the Black Box of Prosecutor Discretion"

The title of this post is the title of this new article authored by Megan Wright, Shima Baradaran Baughman and Christopher Robertson. Here is its abstract:

In their charging and bargaining decisions, prosecutors have unparalleled and nearly-unchecked discretion that leads to incarceration or freedom for millions of Americans each year.  More than courts, legislators, or any other justice system player, in the aggregate prosecutors’ choices are the key drivers of outcomes, whether the rates of mass incarceration or the degree of racial disparities in justice.  To date, there is precious little empirical research on how prosecutors exercise their breathtaking discretion.  We do not know whether they consistently charge like cases alike or whether crime is in the eye of the beholder.  We do not know what sorts of limits, supervision, or guidelines prosecutors work within. And we do not know what sorts of information prosecutors rely upon, when making their decisions.  Prosecutors’ decisions have accordingly been called a “black box” for their inscrutability.

Until now.  We recruited over 500 prosecutors nationwide, and had them charge an identical case given identical substantive law, specify the plea bargain terms that they would seek, and explain their decisions.  We also learned about their internal office guidelines and procedures, and the information they rely upon when making charging and bargaining decisions.

Our study tells a story of surprising severity in how prosecutors dispose of a relatively mild case with no harm to victims, creating potentially devastating consequences for an offender suffering from apparent mental illness.  Taking advantage of our vignette-survey design, which presents the exact same case to hundreds of prosecutors, we also document wild heterogeneity in prosecutor charging practices, with some dismissing the case out of hand and others demanding months or years of incarceration.  We also find that many prosecutors lack meaningful guidelines or supervision.  Nonetheless, in our review of their qualitative explanations, we also find prosecutors aspiring to do justice, concerned about harm to victims and the rehabilitation of offenders, and considering their mental health and financial wherewithal.  From these findings, we shed light in an otherwise theoretically rich but empirically lacking area of criminal scholarship.

Realizing that Prez Biden is now officially behind Prez Trump's clemency pace

Gearing up for this awesome series of panels later this month on "The Future of the President’s Pardon Power: 2021 Clemency Panel Series," and particularly thinking about Prez Trump's record for this first panel on "Donald Trump’s Theatre of Pardoning," it dawned on me that it was around this time in 2017 that Prez Trump issued his very first clemency grant.  Specifically, as noted in this post, on August 25, 2017, President Donald Trump pardoned former Maricopa County Sheriff Joe Arpaio.  

Fast forward four years, and we are now into September of the first year with President Biden in the oval Office and he has not yet used his clemency pen one single time.  Being behind Prez Trump's unimpressive pace is especially troubling given that candidate Joe Biden promised to "broadly use his clemency power for certain non-violent and drug crimes" and there is an on-going pandemic that continues to harmfully impact a (now growing) federal prison population as well as thousands of low-risk offenders released to home confinement facing possible return to prison. 

I have highlighted in a number of prior posts how disappointing the Biden Administration's criminal justice record has been so far.  But his clemency record (or lack thereof) represents the most tangible and worrisome example of this Administration's apparent affinity for the (broken) political and legal status quo on various federal criminal justice matters.

A few of many prior related posts:

• "Donald Trump’s Theatre of Pardoning: What Did We Learn?" 
• ACLU urging Prez Biden to "use his clemency powers to bring home 25,000 people" from federal prisons 
• Notably advocacy for Prez Biden to use his clemency power to ensure those released into home confinement need not return to prison 
• Uninspired comments and plans emerging from Biden White House concerning clemency vision
• "When Will Joe Biden Start Using His Clemency Powers?" 
• New Federal Sentencing Reporter issue considers "After Trump: The Future of the President’s Pardon Power"

CCJ helpfully details "Recidivism Rates: What You Need to Know"

The Council on Criminal Justice has prepared this terrific new brief about recidivism rates building off the data collected and recently released by the Bureau of Justice Statistics. The brief was prepared by Nancy La Vigne and Ernesto Lopez, and I recommend the full online document. Here are some highlights (with links from the original):

The rate at which people return to prison following release is a key measure of the performance of the nation’s criminal justice system, yet national statistics on recidivism are rare.  The federal Bureau of Justice Statistics (BJS) publishes them only every three years.  This brief summarizes the key takeaways from the most recent report, released in July 2021, and analyzes them in the context of previous findings.

1. The return-to-prison rate has dropped considerably.  People released from state prison in 2012 were much less likely to return to prison than those released in 2005. During the first year following release, 19.9% of the 2012 group returned to prison compared with 30.4% of the 2005 cohort.  The three-year prison return rate — the most commonly used measure — fell from about 50% to 39%. This 11-percentage point reduction persisted through the full five-year tracking period.

2. Rearrest rates remain stubbornly high.  The cumulative five-year rearrest rate of people exiting prison in 2012, at 71%, was six percentage points lower than that of people released in 2005 (77%).  The rate of rearrest for violent offenses was virtually unchanged, while rearrests for property offenses declined by three percentage points, rearrests for drug violations declined by six percentage points, and rearrests for public order offenses declined by four percentage points.

3. Most people are rearrested for public order offenses.  Public order offenses are the most common reason people are rearrested following release, accounting for 58% of 2005 releases who were rearrested and 54% of 2012 releases (Table 9, p. 9; Table 10, p. 10).  Public order is a broad category that includes offenses such as driving under the influence, disorderly conduct, and weapons violations.  The share of rearrests for weapons offenses remained relatively stable between those released in 2005 and 2012 (at 9.1% and 9.4%, respectively), as did rearrests for driving under the influence (from 9.3% to 8.7%)....

6. Criminal activity is not highly specialized.  People released in 2012 who had been serving a prison term for a violent crime were almost as likely to be rearrested for a property crime (28.9%) as a violent crime (32.4%) — Table 11.  Similarly, many people serving time for property crimes (29.6%) were rearrested for violent offenses (51.2%).  This aligns with prior research that suggests that most criminal behavior is not highly specialized and that labeling someone as “violent” or “non-violent” is overly simplistic.

7. Different metrics tell different stories.  Historically, the most common measure of recidivism has been the rate at which people return to prison within three years of release. Because there were long periods of time between national reports over the last few decades, it was commonly though that the three-year state prison recidivism rate was stagnant at about 50%.  That was the return rate of people released in 1994, a finding that wasn’t published until 2002.  It was another dozen years before the next report, in 2014, tracked recidivism of those released in 2005.  More recently, BJS has reported recidivism rates more frequently and has used different measures, including the rearrest rate. While the different measures have their strengths and weaknesses, it is important to compare apples to apples.  In this case, that means distinguishing headlines about rearrest rates that top 70% over a five-year period from three-year re-incarceration rates, which now have fallen below 40%.

Notable accounting of federal prosecutions and sentences responding to riots both before and during January 6

This recent AP article, headlined "Records rebut claims of unequal treatment of Jan. 6 rioters," provides a valuable and interesting accounting of some of the federal criminal accountability that has followed various riots in recent times.  Here are excerpts:

An Associated Press review of court documents in more than 300 federal cases stemming from the protests sparked by George Floyd’s death last year shows that dozens of people charged have been convicted of serious crimes and sent to prison.

The AP found that more than 120 defendants across the United States have pleaded guilty or were convicted at trial of federal crimes including rioting, arson and conspiracy. More than 70 defendants who’ve been sentenced so far have gotten an average of about 27 months behind bars. At least 10 received prison terms of five years or more....

To be sure, some defendants have received lenient deals. At least 19 who have been sentenced across the country got no prison time or time served, according to the AP’s review. Many pleaded guilty to lower-level offenses, such as misdemeanor assault, but some were convicted of more serious charges, including civil disorder.

In Portland, Oregon — where demonstrations, many turning violent, occurred nightly for months after a white Minneapolis police officer killed Floyd — about 60 of the roughly 100 cases that were brought have been dismissed, court records show.  Most of those defendants received deferred resolution agreements, under which prosecutors promise to drop charges after a certain amount of time if the defendant stays out of trouble and completes things like community service.  Some Jan. 6 defendants have complained it’s unfair they aren’t getting the same deals.

But President Joe Biden’s Justice Department has continued the vast majority of the racial injustice protest cases brought across the U.S. under Trump and has often pushed for lengthy prison time for people convicted of serious crimes.  Since Biden took office in January, federal prosecutors have brought some new cases stemming from last year’s protests.

Conservatives have sought to equate the attack on the Capitol with the Black Lives Matter protests, accusing Democrats of being hypocrites for not denouncing the violence after Floyd’s death as loudly as the Jan. 6 insurrection.  And some Republicans have seized on the handling of the protest cases in Portland to suggest that the Jan. 6 defendants are being politically persecuted.

That has not been borne out when comparing the sentences that federal judges have given to Jan. 6 defendants and those who are accused of crimes during the protests against police brutality across the country.  Only a handful of the nearly 600 people who’ve been charged in the insurrection have received their punishments so far, and just three people have been sentenced to time behind bars.  The vast majority of the most serious cases — involving those accused of assaulting police officers or conspiring to block the certification of Biden’s victory — remain unresolved.

Some of many prior related posts:

• "Many Capitol rioters unlikely to serve jail time" because some facing only misdemeanor convictions
• Noting the importance of charging policies and practices (and consistency?) as federal rioting charges get resolved from coast-to-coast
• Harsh penal treatment of some Capitol rioters being criticized by notable progressive 
• New plea deals sets possible new precedent for resolving low-level Capitol riot prosecutions with single misdemeanor with 6 month jail maximum
• Notable education efforts prior to sentencing of minor participant in Capitol riot (who seems likely to get probation)
• Feds advocate for (mid-guideline) prison term of 18 months for first Jan 6 defendant due to be sentenced on felony charge 
• First Jan 6 rioter to be sentenced on felony charges gets (below-guideline) sentence of eight months in federal prison 
• Federal judges expressing some concern about lenient plea deals for some Capitol riot defendants

"More Community, Less Confinement: A State-by-State Analysis on How Supervision Violations Impacted Prison Populations During the Pandemic"

The title of this post is the title of a great new analysis by the Council of State Governments Justice Center looking at prison populations as impacted by the pandemic and reactions thereto.  This press release provides this overview (and helpful links at the end):

State prison populations shrank by an unprecedented 14 percent in 2020 due to changes spurred by the COVID-19 pandemic, according to new data released today by The Council of State Governments (CSG) Justice Center.  The study, More Community, Less Confinement, was conducted in partnership with the Correctional Leaders Association (CLA) and with support from Arnold Ventures.
 
Despite the decline in total prison population, supervision violations still drive a substantial share of new admissions — accounting for 42 percent of prison admissions in 2020. This included roughly 98,000 people admitted to prison for technical violations, such as missed curfews or failed drug tests.  The share of the population in prison for supervision violations was 20 percent in 2020, down slightly from 23 percent in 2018.
 
“As these data underscore, during the COVID-19 pandemic, probation and parole agencies made significant changes to the way they do business. These changes protected the health and safety of people in the justice system, including corrections staff,” said Megan Quattlebaum, director of the CSG Justice Center.  “Now, we have a unique and important opportunity to explore which of these policy changes should be retained to maximize success for people serving on community supervision.  Each of the 98,000 people admitted to prison—not for new crimes, but for violating the conditions of their probation or parole — represents 98,000 opportunities to improve public safety while saving states money. When people on probation and parole succeed, it is a win-win-win for them, their communities, and all taxpayers.”
 
In response to the threat of COVID-19, many parts of the criminal justice system halted operations to reduce in-person contact and prevent the spread of the virus.  The CSG Justice Center surveyed corrections leaders in all 50 states to understand the impact of community supervision on state prison populations. The resulting data span 3 years — from 2018 to 2020 — and uncover how the number of people sent to prison for supervision violations changed during and prior to the pandemic. 
 
While some states released people from prisons early to help reduce spread of the virus, the population decline in state prisons was largely driven by a drop in the number of people being admitted to prisons.  Roughly 200,000 fewer people were admitted to prison in 2020 due to changes in offending behaviors, local law enforcement, community supervision, and court operations....
  
Overall, there were roughly 167,000 fewer people in state prisons in 2020. One-third of the total drop (57,000 people) was due to fewer people sitting in prison for supervision violations. In addition, about 73,000 fewer people entered prison for supervision violations in 2020 — a 30 percent drop in a single year.  The cumulative result over this 3-year data collection effort showed that there were 31 percent fewer people in prison for technical supervision violations and 18 percent fewer people in prison for new offense violations, while all other populations (primarily new court commitments) dropped just 12 percent....
 
Learn more:

• Report title: More Community, Less Confinement: A State-by-State Analysis on How Supervision Violations Impacted Prison Populations During the Pandemic
• URL: https://csgjusticecenter.org/publications/more-community-less-confinement/
• What’s included:
  • National Report
  • 50-State Data Reports: View your state’s data
  • Methodology

"States of emergency: The failure of prison system responses to COVID-19"

The title of this post is the title of this notable new report from the Prison Policy Initiative authored by Tiana Herring and Maanas Sharma giving state-by-state grades to pandemic responses in incarceration nation. As the title suggestion, a whole lot of states received failing grades. Here is how the report gets started:

From the beginning of the pandemic, it was clear that densely packed prisons and jails — the result of decades of mass incarceration in the U.S. — presented dangerous conditions for the transmission of COVID-19. More than a year later, the virus has claimed more than 2,700 lives behind bars and infected 1 out of every 3 people in prison.

A year after we first graded state responses to COVID-19 in prisons, most state departments of corrections and the federal Bureau of Prisons are still failing on even the simplest measures of mitigation.

In this report, we evaluated departments of corrections on their responses to the pandemic from the beginning of the pandemic to July 2021.  We looked at a range of efforts to:

• Limit the number of people in prisons: States received points for reducing prison populations as well as for instituting policies that reduced admissions and facilitated earlier releases.
• Reduce infection and death rates behind bars: We penalized prison systems where infection and mortality rates exceeded the statewide COVID-19 infection and mortality rates, because some key decisions were based on correctional agencies’ faulty logic that prisons were controlled environments and therefore better positioned to stop the spread of infection than communities outside prison walls.
• Vaccinate the incarcerated population: States were rated higher for including incarcerated people in their vaccine rollout plans, as well as for higher vaccination rates among their prison populations.
• Address basic health (and mental health) needs through easy policy changes: We credited states for waiving or substantially reducing charges for video and phone calls, or providing masks and hygiene products to incarcerated people.  States also received points for suspending medical co-pays (which can discourage people from seeking treatment), requiring staff to wear masks, and implementing regular staff COVID-19 testing.

While some states performed well on one or two of these criteria, no state’s response to COVID-19 in prison has been sufficient.  The highest letter grade awarded was a “C”, and most states completely failed to protect incarcerated people.

Might SCOTUS be interested in taking up victim rights issues surrounding the Jeffrey Epstein case?

I find it somewhat surprising that the US Supreme Court has not yet ever taken up any cases dealing with the Crime Victims' Rights Act (CVRA), the 2004 legislation which significantly expanded the statutory rights of federal crime victims and creates duties on federal courts to ensure these rights are respected.  But, as highlighted by this new Politico article, headlined "Jeffrey Epstein accuser asks Supreme Court to uphold victims' rights," a high-profile case now provides them with a remarkable new opportunity to take up CVRA issues.  Here are the basics:

A woman who accused Jeffrey Epstein of sexually abusing her beginning when she was 14 is asking the Supreme Court to rule that federal prosecutors violated her rights by failing to consult her before cutting what critics have dubbed a sweetheart deal with the since-deceased financier and philanthropist.

The so-called nonprosecution agreement precluded U.S. authorities in south Florida from bringing federal charges against Epstein, despite similar allegations from dozens of women, if Epstein pleaded guilty to two state felonies related to soliciting a minor for sex.

Lawyers for Courtney Wild are asking the justices to overturn an appeals court ruling from June that held that Wild could not use a civil suit to enforce her rights under the Crime Victims’ Rights Act, a law Congress passed in 2004 to guarantee victims of crime certain protections in the federal criminal justice system.

The 7-4 ruling from the full bench of the 11th U.S. Circuit Court of Appeals called the government’s actions in the case “shameful,” but concluded that while the statute gives victims rights to jump into federal criminal proceedings, it doesn’t allow them to sue when no such case was ever filed.

“The en banc decision leaves the Government free to negotiate secret, pre-indictment non-prosecution agreements without informing crime victims,” attorneys Paul Cassell, Brad Edwards and Jay Howell wrote in the high court filing.

Over at The Volokh Conspiracy, Paul Cassell yesterday had this lengthy post about his new cert petition under this full headline: "Was it Lawful for the Justice Department to Reach a Secret Non-Prosecution Agreement with Jeffrey Epstein Without Telling His Victims?: My cert petition to the U.S. Supreme Court asks it review the Eleventh Circuit en banc's decision concluding that Epstein's victims cannot enforce their right to confer with prosecutors under the Crime Victims' Rights Act because the Department never formally filed charges against Epstein." Here is how his post gets started (with links from the original):

Today I filed a cert petition with the U.S. Supreme Court, asking it to review whether crime victims can enforce their rights under the Crime Victims' Rights Act (CVRA) before prosecutors file charges.  The petition, filed by one of the nation's leading crime victims' attorneys, Bradley J. Edwards, and me on behalf of one of Epstein's victims — Courtney Wild — seeks review of a 7-4 en banc decision from the Eleventh Circuit.  The Circuit held that the CVRA is only triggered when prosecutors file federal charges. Before then, according to the Eleventh Circuit, prosecutors are free to conceal from victims any deal that they may strike with the target of a federal investigation — as they did in the Epstein case.  This issue has sweeping implications for the proper enforcement of the CVRA, and we hope that the Court grants Ms. Wild's petition to review this very important legal question.

"Donald Trump’s Theatre of Pardoning: What Did We Learn?"

The title of this post is the title of this online panel now scheduled for two week from today and the first in a terrific series of online panels that will explore in depth the federal clemency powers.   As I detailed in this prior post, this series is jointly organized by the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law, the Collateral Consequences Resource Center, the Federal Sentencing Reporter, and the David F. and Constance B. Girard-diCarlo Center for Ethics, Integrity and Compliance at Villanova University Charles Widger School of Law. 

A whole lot of folks are doing great work putting this series together, and Margaret Love merits extra praise for her efforts and for helping to assemble writings on these timely topics in Volume 33, Issue 5 of the Federal Sentencing Reporter (which largely provides the foundation for these panels).  Here are more details about this first panel:

Donald Trump’s Theatre of Pardoning: What Did We Learn?

Tuesday, September 14, 2021 | 12:30 – 2:00 p.m. EDT | Zoom  (Register here)

This panel will examine the unusual nature of President Donald Trump’s pardoning, looking at the grants themselves and the process that produced them.  Professors Bernadette Meyler and Frank Bowman, both scholars of the pardon power, will look to history for anything comparable to Trump’s use of the pardon power, and comment on its implications for the role that pardon has historically played in the U.S. justice system.  Amy Povah will share her experiences as someone who was personally involved in recommending cases to the White House at the end of the Trump Administration.  Kenneth Vogel will share his experiences as a journalist covering Trump’s pardons for the New York Times.  This panel will set the stage for the two subsequent panels about the future of presidential pardoning, by asking basic questions about the role of a regular pardon process and the result of it having been sidelined by Trump.  It will also consider whether Trump’s pardons were an aberration or the predictable result of trends in pardoning over the past thirty years.

Panelists:

Frank Bowman, Floyd R. Gibson Missouri Endowed Professor of Law, University of Missouri School of Law
Bernadette Meyler, Carl and Sheila Spaeth Professor of Law, Stanford Law School
Amy Povah, founder, CAN-DO Justice through Clemency
Kenneth Vogel, New York Times

Moderator:

Margaret Love, executive director, Collateral Consequences Resource Center and former U.S. Pardon Attorney

Might any Justices be intrigued by notion that Eighth Amendment originalism makes the Boston Marathon bomber's death sentence suspect?

I have always been intrigued by writings by Michael J.Z. Mannheimer making originalist claims about the Eighth Amendment as a unique and distinctive limit on federal punishments.  As he explains in "Cruel and Unusual Federal Punishments," the framers and ratifiers of the Eighth Amendment were particularly concerned about an oppressive federal government imposing  excessive punishments, and so they expected that "state law should be the benchmark for determining whether a federal punishment is 'cruel and unusual'."  Particularly because many federal  criminal laws and sentencing provisions are now particularly harsh when compared to state benchmarks — think many federal drug and gun mandatory minimums — Mannheimer's approach to the Eighth Amendment could have considerable modern purchase.  And, since this idea seems firmly grounded in originalism, one might hope that serious originalists might at least consider this idea when considering a notable federal punishment.

These matters are on my mind today because Professor Mannheimer just filed this interesting amicus brief in  US v. Tsarnaev, which just happens to involve a notable federal punishment for a notable criminal defendant.  Here is part of the brief's summary of argument:

In 1783, faced with a request by the Articles of Confederation Congress for unanimous consent by the States to implement a new impost on goods, Massachusetts assented.  But it did so only with conditions.  One condition was that, in enforcing the proposed impost within Massachusetts, the central government must not impose upon a violator of the impost law any “punishments which are either cruel or unusual in this Commonwealth.”  Georgia, New Hampshire, and South Carolina set the same condition, substituting “State” for “Commonwealth.”  Thus, a scant six years before the Bill of Rights was proposed by Congress and submitted to the States, we see a precursor to the Eighth Amendment in these state impost ratifications, which used language nearly identical to that which would appear in the Eighth Amendment.  And that language was State-specific; the measure of what punishments qualified as “cruel or unusual” was to be determined on a State-by-State basis, according to what qualified as “cruel or unusual” punishment in each State.

When the Eighth Amendment was drafted only a few years later, the State-specific understanding of this phrase remained. Coupled with the word “cruel,” unusual meant “harsher than is permitted by the law of long usage and custom,” i.e., the common law. And, of course, the common law differed in each State. More importantly, the framers and ratifiers of the Eighth Amendment understood that the common law differed by State.

This State-specific understanding of the term “cruel and unusual punishments” follows directly from the goals of the Anti-Federalists in demanding a bill of rights. The Anti-Federalists initially opposed ratification of the Constitution because they feared that the outsized power of the proposed new federal government would lead to both the annihilation of the States as sovereign entities and the destruction of individual rights. These two fears were intertwined: If the new central government were to create a parallel and plenary system of laws, it would render the States irrelevant and permit the central government to sidestep the common-law rights Americans had fought and died for only a few years before. These common-law rights had been enshrined in state constitutions and laws, but because the proposed federal government would be acting on the citizens directly, it would not be bound to observe those rights.

The Anti-Federalists’ solution was to constrain the new federal government in the same ways that the States constrained themselves. This meant, in some instances, calibrating federal rights to state norms, thereby preserving state power and individual rights simultaneously by retaining the primacy of the States in protecting common-law rights.  This is how the Cruel and Unusual Punishments Clause was to operate, protecting the common-law right against punishments unknown to the law by positing state law as the reference point, the benchmark of “unusualness.” “Cruel and unusual” meant “harsher than is permitted in the particular jurisdiction.”  With this understanding in place, moderate Anti-Federalists gave their assent to ratification and a Nation was born...

The people of Massachusetts have effectively turned their face against the death penalty, believing it to be an inappropriate method of punishment within their Commonwealth.  Just like the Commonwealth’s conditional assent to the 1783 confederal impost, the Anti-Federalists’ assent to ratification on condition that a bill of rights be adopted preserves the Commonwealth’s authority to set the outer bounds of punishment for crimes committed entirely within its borders.  The core, irreducible meaning of the Eighth Amendment is that this judgment is the Commonwealth’s to make.

The federal government may not impose capital punishment in this case because the death penalty, in the most fundamental, literal meaning of the words, is “cruel and unusual punishment” in Massachusetts.

Of course, substantive Eighth Amendment issues are not directly in front of the Supreme Court in Tsarnaev because the First Circuit reversed the Boston Marathon bomber's death sentence on procedural grounds. But the good professor urges SCOTUS to instruct the lower courts to address this matter if it were to at some point remand the case to the First Circuit.

Notable response to notable attack on conservatives role in modern criminal justice reform

Lars Trautman and Brett Tolman have this interesting new Washington Examiner commentary headlined, "No, criminal justice reform isn’t causing the current crime wave." Here are excerpts (with links from the original):

Conservative criminal justice reformers have faced occasional skepticism over our tried-and-true criminal justice solutions, but never something quite so outlandish as a recent suggestion, by an avowed conservative, no less, that conservative reformers somehow bear blame for rising violent crime in liberal bastions such as New York City and Portland.

Sean Kennedy, in his recent Washington Examiner article , attacks our organization, Right on Crime, using just such an argument.  Kennedy actually acknowledges our record of helping Texas and other conservative states simultaneously reduce their crime rates, prison populations, and criminal justice spending.  But he then claims, without evidence and employing a classic logical fallacy , that this activity then caused subsequent increases in crime in Texas.  Note that he makes this claim even though crime spiked at exactly the same time he refers to in many states where none of our reforms were enacted....

But those of us who have served in law enforcement, as prosecutors or in corrections, have learned that if you invest properly in police, evidence-based programming, and prison alternatives, you can consequently achieve reductions in crime, recidivism, and ultimately prison construction costs.  Further, the evidence is clear that it is the certainty and not the severity of punishment that deters potential criminals.  A few more years on a potential sentence doesn’t change many minds about crime — it’s the long odds of getting away with it entirely.

Too often, people do get away with murder and a host of other crimes.  Homicide clearance rates nationally hover around 50%. Whether a killer meets justice is a coin flip . If you’re worried about public safety, it’s more productive to spend your time improving clearance rates, not bemoaning the elimination of ineffective mandatory minimums for nonviolent offenses.

This is why we are so adamant about reducing our overreliance on prison beds and other costly, unproductive interventions so that we can redirect this money and focus toward law enforcement and other strategies that actively improve our crime prevention and investigative capabilities.  Practically speaking, this means more funding for police departments, especially homicide and other specialized units focusing on serious and violent crime — a commonsense solution backed by research.  It also means helping shift to others, such as social workers and truant officers, at least a few of the dozen different jobs we currently expect law enforcement to complete, so that police can concentrate on actual police work.

Sixth Circuit invents another extra-textual limit on what can permit a sentence reduction under 3582(c)(1)(A), including one in contradiction of USSC guidelines

In this post earlier today, I noted and criticized the Third Circuit's work in US v. Andrews, No. 20-2768 (3d Cir. Aug. 30, 2021) (available here), for its embrace of extra-textual categorial exclusions as to what might qualify as extraordinary and compelling reasons to support a sentence-reduction motion under 18 U.S.C. § 3582(c)(1)(A).  Turns out, today was a special day for this kind of extra-textual policy work by the courts, as the Sixth Circuit in US v. Hunter, No. 21-1275 (6th Cir. Aug. 30, 2021) (available here), also decided to make up rules in this context:

As explained further below, the text and structure of § 3582(c)(1)(A) limit a district court’s discretion to define “extraordinary and compelling” in two ways relevant to this case. First, non-retroactive changes in the law, whether alone or in combination with other personal factors, are not “extraordinary and compelling reasons” for a sentence reduction. Second, facts that existed when the defendant was sentenced cannot later be construed as “extraordinary and compelling” justifications for a sentence reduction.

I have explained in a number of prior posts why the "first" point made by the Hunter court is unsupported by the text of 3582(c)(1)(A) (see here)  But the "second" point from the Hunter panel seems especially problematic and an especially misguided policy invention.  Congress instructed, in 28 U.S.C. § 994(t), that the US Sentencing Commission "describe what should be considered extraordinary and compelling reasons for sentence reduction," and the USSC has expressly stated, in USSG §1B1.13 application note 2, that facts that existed when the defendant was sentenced can later support a finding of "compelling and extraordinary" reasons for a reduction.  Here is this USSC application note in full:

2. Foreseeability of Extraordinary and Compelling Reasons. — For purposes of this policy statement, an extraordinary and compelling reason extraordinary and compelling reasons need not have been unforeseen at the time of sentencing in order to warrant a reduction in the term of imprisonment.  Therefore, the fact that an extraordinary and compelling reason reasonably could have been known or anticipated by the sentencing court does not preclude consideration for a reduction under this policy statement.

So, to review, Congress tasked the Sentencing Commission with describing how district courts should assess extraordinary and compelling reasons for a sentence reduction, and the USSC said that there is no preclusion on the consideration of facts known at the time of sentencing.  But, in contravention of the instructions of Congress and the work of the USSC, this Sixth Circuit panel has decided it can and should make up its own misguided rule that facts that existed when the defendant was sentenced cannot contribute to providing extraordinary and compelling reasons for a reduction.

As I see the Hunter opinion, it really seems like the panel was troubled by a murderer getting his sentence reduced to "only" 21 years in prison.  If the substantive merits of the reduction  so bothered the panel, I sure wish it would have explained its concerns with a focus on how the 3553(a) factors were weighed, rather than by making up a lot of problematic law concerning what cannot serve as the basis for finding an extraordinary and compelling reason.   As I have noted before, Congress set forth one (partial) express exclusion in § 994(t): "Rehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason."  In light of this clear (and limited) statutory command, all other limits created by circuit courts appear to me to be extra-textual policy-making, not textual statutory interpretation.

Prez Biden reportedly considering, for home confinement cohort, clemency only for "nonviolent drug offenders with less than four years" left on sentence

The New York Times has this notable new report, headlined "White House Weighs Clemency to Keep Some Drug Offenders Confined at Home," which suggests a limited subclass of the home confinement cohort may the focal point for clemency efforts by the Biden White House.  Here are the details, many of which are not that new, but all of which are important as efforts move slowly forward to help this cohort:

President Biden is considering using his clemency powers to commute the sentences of certain federal drug offenders released to home confinement during the pandemic rather than forcing them to return to prison after the pandemic emergency ends, according to officials familiar with internal deliberations.

The legal and policy discussions about a mass clemency program are focused on nonviolent drug offenders with less than four years remaining in their sentences, the officials said. The contemplated intervention would not apply to those now in home confinement with longer sentences left, or those who committed other types of crimes.

The notion of clemency for some inmates is just one of several ideas being examined in the executive branch and Congress. Others include a broader use of a law that permits the “compassionate release” of sick or elderly inmates, and Congress enacting a law to allow some inmates to stay in home confinement after the pandemic.

Interviews with officials in both the executive branch and Congress, most of whom spoke on the condition of anonymity to discuss sensitive deliberations, suggest there is broad support for letting nonviolent inmates who have obeyed the rules stay at home — reducing incarceration and its cost to taxpayers. But officials in each branch also foresee major challenges and have hoped the other would solve the problem....

Inmate advocates and some Democratic lawmakers have urged the Biden legal team to rescind the Trump-era memo and assert that the bureau can lawfully keep the prisoners in home confinement even after the pandemic ends.

But The New York Times reported last month that the Biden legal team had concluded that the memo’s interpretation of the law was correct, according to officials briefed on the internal deliberations. Officials have subsequently characterized that scrutiny as a preliminary review and said that a more formal one was underway, but suggested that a reversal of the Trump-era legal interpretation continued to be highly unlikely.

Against that backdrop, in a little-noticed comment at a press briefing this month, the White House press secretary, Jen Psaki, let slip that Mr. Biden was taking a closer look at clemency to help the subgroup who are nonviolent drug offenders....  In interviews, officials have subsequently confirmed that focus.  As a first step, the Justice Department will soon begin requesting clemency petitions for drug offenders who have less than four years left on their sentence, which will then be reviewed by its pardon office, they said.

It is unclear whether the Biden team is leaning toward commuting the sentences of the nonviolent drug offenders to home confinement, reducing the length of their sentences to bring them within the normal window for home confinement or a mix of the two.  The officials said focusing on nonviolent drug offenders, as opposed to other types of criminals, dovetailed with Mr. Biden’s area of comfort on matters of criminal justice reform. In his campaign platform, Mr. Biden had said he pledged to end prison time for drug use alone and instead divert offenders to drug courts and treatment.

Inimai Chettiar, the federal director of the Justice Action Network, called the idea a good start but also questioned the basis for limiting it to some nonviolent drug offenders, saying there was “no scientific evidence” for restricting the help to that category.  She suggested another explanation. “Politically, it’s an easier group to start with,” Ms. Chettiar said.

In addition, officials said, the Justice Department is studying other options that could help keep different groups from being forced back into prison.  Another idea under consideration is to petition the courts to let some individual inmates stay in home confinement under a “compassionate release” law. While the compassionate release law is normally used to permit terminally ill inmates to rejoin their families shortly before dying, the statute includes a broad standard for what a judge could decide warrants a sentence reduction — “extraordinary and compelling reasons” — that is not defined and might be applied to the pandemic-era home confinement population.

Kristie Breshears, a spokeswoman for the Bureau of Prisons, said additional options included expanding a pilot program that allows for the early release of older inmates in order to keep some who are over the ago of 60 in home confinement, and placing some inmates in halfway houses for 12 months.

Separately, Senators Richard J. Durbin of Illinois and Charles E. Grassley of Iowa — the top Democrat and Republican on the Senate Judiciary Committee — have also been discussing potential bipartisan legislation that would solve the problem in a simpler way by explicitly authorizing the Justice Department to extend home confinement after the pandemic.

At a hearing in April, Mr. Grassley joined Democrats in voicing support for allowing inmates in home confinement to stay there.  Taylor Foy, a spokesman for Mr. Grassley, said his office had drafted legislation that month that would let “inmates moved to home confinement during the pandemic complete their sentences there rather than returning to prison after the pandemic ends.”

Mr. Durbin had been among those who urged the Biden administration to instead reinterpret existing law as permitting perpetual home confinement for those inmates who were placed there during the emergency period. In a statement, Mr. Durbin embraced the idea of new legislation, but also said he did not think it would be easy — or necessary.  The prospects for legislation in “an evenly divided Senate are uncertain,” he said, reiterating his view that “the Biden administration has ample executive authority to immediately provide the certainty” to the inmates.

I would be eager it see an "all of the above" and more approach move forward in the months ahead. Prez Biden should certainly consider commuting many of the sentences of nonviolent drug offenders on home confinement (and also many others) AND there should be a continued push to seek sentence reductions in the courts for others on home confinement (and also many others) AND BOP should expand its pilot program for releasing older offenders into home confinement AND Senators Grassley and Durbin should keep pushing forward with legislation to expand the authority for placement into home confinement and to prevent those so placed from having to return to prison absent misbehavior.

When campaigning for his current job, Prez Biden promised that he would "take bold action to reduce our prison population."  But the federal prison population has so far grown significantly in the first seven month of the Biden Administration.  Specifically, the federal prison population has grown by over 4000 persons according to BOP numbers, from 151,646 total inmates on Jan 21, 2021 to 155,730 total inmates on Aug 26, 2021.  To date, I cannot really think of any actions (let alone bold ones) that Prez Biden has taken to reduce the federal prison population.  Talk of some clemency action is heartening, but just a start.  And whatever clemency efforts are made, they should extend beyond just a limited group who are already home.

"A History of Early Drug Sentences in California: Racism, Rightism, Repeat"

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

For the past 100 years, harsh drug sentences have had extraordinary support from the public.  Historically enthusiasm for drug prohibition often coincides with affinities for summary justice and authoritarian social control.  Escalations of drug sentences in California from 1881 to 1961 followed a pattern of collective myth making and value signaling that insisted opiates, cocaine, and cannabis were extremely dangerous, led to other crime, and prevalently were used and sold by immigrants and other despised groups.  Demands for severe punishment seemed to peak twice, in the 1920s and 1950s, in response to exaggerated threats such as “dope peddlers” targeting children and profitable “dope rings” controlled by subversive foreigners.  Amplified by a self-seeking, robust news media and a multitude of fraternal, civic, and religious organizations, the frightful construction of illicit drugs seemed to demand an uncompromising response. Increasing terms of incarceration seemed direct, simple, and quantifiable.

But white voters always understood that drug laws targeted immigrants and communities of color, and law enforcers used extreme penalties as leverage to pursue corrupt and racist prerogatives unrelated to reducing drug use.  Drug penalties in California were developed over many decades with almost extreme levels of participation by anti-drug activists and law enforcers.  Appearing somehow scientific, the resulting arrays of penalties implied that the cruelest sentences were reserved for the truly blameworthy, when in fact they were reserved for the marginalized.  Moreover, several legal conventions born of these penalty structures — mandatory minimums, the distinction between user and seller, punishment of addiction itself, and presumptions arising from drug quantities — still exacerbate the oppressive nature of drug statutes.  As California’s drug sentences increased and complexified over the first half of the 20th century, a destructive drug law enforcement regime sanctioned by white voters was unleashed on marginalized communities in Los Angeles.

Third Circuit invents some extra-textual limits on what might permit a sentence reduction under 3582(c)(1)(A)

Over the last year, the federal circuits have started issuing various opinions concerning what factors may serve as the basis for compassion release in the wake of the FIRST STEP Act allowing courts to consider sentence-reduction motions under 18 U.S.C. § 3582(c)(1)(A) without awaiting a motion by the Bureau of Prisons.  Of course, Congress long ago expressly instructed, in 28 U.S.C. § 994(t), that the US Sentencing  Commission "shall describe what should be considered extraordinary and compelling reasons for sentence reduction, including the criteria to be applied and a list of specific examples."  But the Commission has not had a quorum in the nearly three years since the FIRST STEP Act became law, so courts have had to figure out these matters on their own for now.

Given the statutory text enacted by Congress in 1984 and in 2018, I think the first big circuit ruling in this space had it right.  Specifically, the Second Circuit in September 2020 was the first circuit to rule in Zullo/Brooker, quite rightly in my view, that district courts now have broad discretion to consider "any extraordinary and compelling reason for release that a defendant might raise" to justify a sentence reduction under 3582(c)(1)(A).  That seemed right because Congress nowhere placed in the statutory text any categorical limits on what kinds of factors could qualify as "extraordinary and compelling."  Congress did set forth one (partial) express exclusion in § 994(t): "Rehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason."  But this clear statutory command always led me to conclude that (1) any other factor could possibly be considered an extraordinary and compelling reason, and also (2) that rehabilitation of the defendant combined with other factors could be considered an extraordinary and compelling reason.

I provide this backstory to explain why I am troubled by part of the Third Circuit's work today in US v. Andrews, No. 20-2768 (3d Cir. Aug. 30, 2021) (available here).  The very first sentence of the Andrews ruling has a Kafka-esque "only in America" quality to it: "Eric Andrews is serving a 312-year sentence for committing a series of armed robberies when he was nineteen."  That a person at age 19 can get a 312-year sentence for a series of robberies strikes me as quite extraordinary and quite compelling, but the district court did not see matters that way.  Specifically, as described by the panel opinion, the district court decided that "the duration of Andrews’s sentence and the nonretroactive changes to mandatory minimums could not be extraordinary and compelling as a matter of law."  Of course, there is no statutory text enacted by Congress that sets forth this "as a matter of law."  But the Third Circuit panel here blesses the extra-textual notion that courts can and should invent some new categorial exclusions "as a matter of law" regarding what might qualify as extraordinary and compelling.  Sigh.

Here is some of the Third Circuit panel discussion (with some cites and parentheticals removed):

We begin with the length of Andrews’s sentence.  The duration of a lawfully imposed sentence does not create an extraordinary or compelling circumstance.  “[T]here is nothing ‘extraordinary’ about leaving untouched the exact penalties that Congress prescribed and that a district court imposed for particular violations of a statute.” United States v. Thacker, 4 F.4th 569, 574 (7th Cir. 2021). “Indeed, the imposition of a sentence that was not only permissible but statutorily required at the time is neither an extraordinary nor a compelling reason to now reduce that same sentence.” United States v. Maumau, 993 F.3d 821, 838 (10th Cir. 2021) (Tymkovich, C.J., concurring).  Moreover, considering the length of a statutorily mandated sentence as a reason for modifying a sentence would infringe on Congress’s authority to set penalties. See Gore v. United States, 357 U.S. 386, 393 (1958) (“Whatever views may be entertained regarding severity of punishment, whether one believes in its efficacy or its futility, these are peculiarly questions of legislative policy.” (citation omitted)).

The nonretroactive changes to the § 924(c) mandatory minimums also cannot be a basis for compassionate release.  In passing the First Step Act, Congress specifically decided that the changes to the § 924(c) mandatory minimums would not apply to people who had already been sentenced.  See First Step Act § 403(b).  That is conventional: “[I]n federal sentencing the ordinary practice is to apply new penalties to defendants not yet sentenced, while withholding that change from defendants already sentenced.”  Dorsey v. United States, 567 U.S. 260, 280 (2012).  “What the Supreme Court views as the ‘ordinary practice’ cannot also be an ‘extraordinary and compelling reason’ to deviate from that practice.” United States v. Wills, 997 F.3d 685, 688 (6th Cir. 2021).  Interpreting the First Step Act, we must “bear[] in mind the fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 320 (2014)... And when interpreting statutes, we work to “fit, if possible, all parts” into a “harmonious whole.” Brown & Williamson, 529 U.S. at 133 (internal quotation marks omitted) (quoting FTC v. Mandel Bros., Inc., 359 U.S. 385, 389 (1959)).  Thus, we will not construe Congress’s nonretroactivity directive as simultaneously creating an extraordinary and compelling reason for early release.  Such an interpretation would sow conflict within the statute.

This ruling and others like it seem to me to have the framing wrong.  Sure, a lawfully imposed sentence, even one based on now-reduced mandatory minimums, will not and should not alone  always qualify in every single case as the sole basis for compassionate release.  (This is what making a change retroactive will do "as a matter of law," namely make every sentence imposed based on that law always eligible for a reduction in every single case.)  Defendants in these compassionate release cases are not arguing that a lawful, now-changed sentence serves as the sole basis for a reduction in all cases, rather they are just saying such facts can and should be considered by judges along with other factors in assessing whether there are extraordinary and compelling reasons for sentence reduction.  Since Congress has not expressly stated that these are improper factors, they can only become unlawful if and when judges start making up extra-textual limits on application of statutory law here.

A few of many, many prior related posts:

• Compassionate release after FIRST STEP: Should many thousands of ill and elderly federal inmates now be seeking reduced imprisonment in court?
• New District Court ruling confirms that "any extraordinary and compelling reasons" can now provide basis for reducing imprisonment under 3582(c)(1)(A)
• Another thoughtful and thorough opinion finds statutory reform among "extraordinary and compelling reasons" for reducing sentence under 3582(c)(1)(A) 
• A dozen new grants of federal sentence reductions using § 3582(c)(1)(A), including another based on stacking/disparity/trial penalty concerns 
• Second Circuit panel rules unanimously that district courts have broad discretion to consider "any extraordinary and compelling reason for release that a defendant might raise" 
• Sixth Circuit panel rules "courts have full discretion" to determine extraordinary and compelling reasons for 3582(c)(1)(A) motions
• Seventh Circuit panel says old guideline does not limit potential "extraordinary and compelling reasons" for 3582(c)(1)(A) motions after FIRST STEP Act 
• Fourth Circuit becomes the fourth circuit to embrace a robust view of sentence reduction authority under 3582(c)(1)(A) after FIRST STEP Act
• Tenth Circuit becomes the latest circuit to embrace a robust view of sentence reduction authority under 3582(c)(1)(A) after FIRST STEP Act 
• Tenth Circuit issues another notable ruling on federal compassionate release authority after the FIRST STEP Act
• Fifth Circuit latest to issue notable ruling on federal compassionate release authority after the FIRST STEP Act
• Ninth Circuit provides yet another ruling on post-FIRST STEP Act federal compassionate release authority 
• Split Sixth Circuit panel further muddles what grounds can contribute to basis for sentence reduction under § 3582(c)(1)(a) 
• Amicus brief stresses congressional text does not preclude legal change as basis for 3582(c)(1)(a) sentence reduction

Timely new Northwestern University Law Review issue examines Second Amendment from many perspectives

Earlier this month I spotlighted in this post the considerable racial disparities that have been documented in the modern criminal enforcement of gun prohibitions.  I did so because,with the US Supreme Court taking up a major Second Amendment case in the coming Term with New York State Rifle & Pistol Association Inc. v. Corlett, I think it important to never lose sight of how gun control laws are actually enforced in federal and state criminal justice systems.

Against that backdrop, I was intrigued to see that this new Northwestern University Law Review issue is fully devoted to new Second Amendment scholarship, and I was pleased that this issue includes an article titled "The Second Amendment in a Carceral State" authored by Alice Ristroph.  Here is the abstract of this article:

Is an armed citizenry consistent with a carceral state?  Throughout the twentieth century, the Second Amendment cast no shadow on the U.S. Supreme Court as the Court crafted the constitutional doctrines that license America’s expansive criminal legal system.  Under the Court’s interpretation of the Fourth Amendment, the fact or mere possibility that an individual is armed can generate broad powers for police officers, including the power to disarm.  But since the Court embraced an individual right to bear arms in 2008, a few scholars and lower courts have begun to worry that this right contradicts contemporary understandings of police authority. 

In this Essay, I acknowledge these apparent doctrinal contradictions but argue that Fourth and Second Amendment doctrines actually share a common conceptual foundation: carceral political theory.  Carceral political theory divides people into “criminals” and “law-abiding citizens” and does so according to intuitions about natural criminality rather than through positive law.  The supposed distinction between the criminal and the law-abiding is used to rationalize unequal distributions of political power, social goods, and exposure to violence.  In the United States, the naturalized conception of criminality has long been racialized.  Unless we identify and reject the carceral assumptions that underlie both Fourth and Second Amendment doctrine, the new (or newly recognized) right to bear arms is likely to further exacerbate racial inequality in the United States.

Justice Counts officially unveils its new 50-State scan of all sorts of criminal justice data

I have previously blogged about the need for better national criminal justice data, and also about a new effort to fill data gaps by the Council of State Governments (CSG) Justice Center through a project called "Justice Counts."  (Some of many posts on these topics can be found below.)  I was pleased this morning to get a new email about the CSG effort under the heading "Justice Counts Unveils a New 50-State Scan of Criminal Justice Data."  This email is available at this link, and here is some of its texts and links:

Policymakers are often forced to make critical decisions using limited or stale criminal justice data.  Over the past year, every trend from crime to revocations has shifted quickly and dramatically.  Facing significant challenges, state leaders need up-to-date information from across the justice system, presented in a digestible way.

As part of the Bureau of Justice Assistance’s Justice Counts initiative, researchers from Recidiviz and The Council of State Governments Justice Center conducted a 50-state scan of publicly available, aggregate-level corrections and jails data.

The national dashboard demonstrates that while policymakers in several states have access to up-to-date information, data collection still has a long way to go. 

View the national dashboard

Each state’s data dashboard provides a central, practical resource for stakeholders to identify gaps and inconsistencies in data reporting.
 

View your state’s dashboard

 

The scan looked at the availability of eight core corrections indicators scattered across hundreds of agency reports, as well as a review of statewide and county jail confinement rates across all 50 states.  The scan shows how much — and how little — state policymakers have to work with.

Recent related posts:

• DEPC and NASC present "Justice Counts: Using Data to Inform Policy and Bolster Public Safety" 
• New report highlights need for improved criminal justice data and means thereto 
• Making a great case for greater data to improve sentencing decision-making and sentencing systems
• More details on "Justice Counts," a notable (and needed) criminal justice data collection effort 

Spotlighting yet another great array of essays at new Inquest website

I will again risk sounding like a broken record by blogging another time about the great new website Inquest, "a forum for advancing bold ideas to end mass incarceration in the United States."  Though I have previously highlighted over a dozen great essays posted in the first few weeks of the site, I must do another post to spotlight these additional new must-read pieces recently added:

From Renaldo Hudson, "Learning and Liberation: It’s no surprise we don’t want to give people a second chance, because too often we’re overwhelmed with being unforgiving."

From Schuyler Daum, "Maxed Out: Long a reflection of the American carceral system’s worst excesses, the supermax prison serves no just purpose and must cease to exist."

From Jane Bambauer, Sandra Mayson, Andrea Roth & Megan T. Stevenson, "Choosing Freedom: Would you rather have your wallet stolen on the street or spend two weeks in jail? How people answer this question can shed light on whether our detention policies make sense." By

"When You Hear Me, You Hear Us: Incarcerated as children, four gifted poets share their art, their experiences, and themselves."

"What's (Really) Driving Crime in New York"

The title of this post is the title of this interesting new short report produced by New Yorkers United for Justice (NYUJ), a coalition of criminal justice organizations. Here are parts of the introduction and conclusion:

A rise in certain categories of violent crime, most notably gun-related homicides and shootings, in New York State has created public concern and widespread speculation about its causes.  This publication examines possible causes for this uptick and debunks the assertions that New York’s criminal legal reforms — including the bail reform of 2018 — caused increases in these categories of crimes in our state.

The exceptional increase in homicides coupled with the decreases in other crime categories suggests that novel factors, rather than well-studied criminal justice reforms, are at work.  A careful look at the data, set in the context of national and world events, reveals that a complex blend of factors is likely at play — including the pandemic and its significant economic impacts, a drastic increase in gun sales, and the racial reckoning and discourse on policing that have contributed to a deterioration of police and community relations.

Furthermore, the increases in certain categories of crime in 2020 actually came on the heels of decades of steady downward trends in crime, both in New York and across the nation.  And the recent increases in homicides bring New York nowhere near the levels of homicides experienced in the early 1990s, when numbers peaked.  In fact, New York City’s 2020 homicide rates are lower than those of Houston, Philadelphia, and Los Angeles.

Some local opponents of criminal justice reform are pouncing on the increase in some crimes to stoke fear, slow progress, and double down on failed, outmoded policies.  And yet the increase in homicides — particularly those using guns — is national in scope, affecting communities big and small, and those that have instituted criminal justice reforms as well as those that have not.....

NYUJ’s review of the available crime data for New York State reveals the wholesale lack of a connection between recent upticks in certain categories of crime and recently adopted criminal legal reforms, such as pretrial reform.  Rather, similar upticks have been experienced across communities with varied criminal justice strategies, not just ones that have adopted reforms.

As discussed above, the most likely explanation for the crime data fluctuations is not a single explanation at all, but a confluence of conditions — from a once-in-a-century global pandemic and its attendant economic disruptions to a profusion of guns entering communities already on edge to strained relations between communities and law enforcement.  This toxic stew of factors has produced an environment of fear and mistrust.

Unfortunately, the complexity of this data is not readily apparent in many media reports.  As a result, there is a danger that policy decisions will be made based on unsupportable conclusions that defy consistent, longstanding evidence about what works to reduce crime and recidivism.  In presenting this information, NYUJ hopes to engage in a productive dialogue about what is driving the concerning crime numbers, what the existing data show, and the most effective policies indicated by the evidence.

A few of many prior recent related posts:

• CCJ releases June 2021 update on "Pandemic, Social Unrest, and Crime in U.S. Cities." 
• AG Garland announces new(?) federal effort to reduce violent crime
• Amidst more guns and many more gun crimes (especially murders), can sentencing reforms move forward as media predicts "bloody summer"?
• Perhaps more guns explains why we have more gun homicides and more gun crimes
• As we puzzle through gun violence spike, is it too soon to hope a decline is already starting?
• "Is New York’s Wave of Gun Violence Receding? Experts See Reason for Hope" 
• "Crime trends and violence worse in California’s Republican-voting counties than Democratic-voting counties"