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September 11, 2021

"Expanding Compassion Beyond the COVID-19 Pandemic"

The title of this post is the title of this paper now on SSRN authored by Katie Tinto and Jenny Roberts. Here is its abstract:

Compassionate relief matters.  It matters so that courts may account for tragically unforeseeable events, as when an illness or disability renders proper care impossible while a defendant remains incarcerated, or when family tragedy leaves an inmate the sole caretaker for an incapacitated partner or minor children.  It matters too, as present circumstances make clear, when public-health calamities threaten inmates with literal death sentences.  It matters even when no crisis looms, but simply when continued incarceration would be “greater than necessary” to achieve the ends of justice.

September 11, 2021 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (0)

September 9, 2021

A short de facto execution moratorium?: could other condemned inmates secure a stay until SCOTUS decides new Ramirez case on religious liberty?

As highlighted in this post, the Supreme Court late last night stayed the execution of John Ramirez, who was scheduled to be killed by Texas via lethal injection on Wednesday night.  Importantly, the Justices not only postponed this execution, it also granted certiorari to allow the Court to fully consider on the merits Ramirez’s request that his pastor be allowed to physically touch him and audibly pray in the execution chamber while Ramirez is put to death. 

Notably, the brief SCOTUS order called for an expedited briefing schedule "that will allow the case to be argued in October or November 2021."  But, even if the argument were to take place in (late) October, it seems pretty unlikely that the Court's ultimate ruling in Ramirez v. Collier will be handed down before late November.  And, as detailed here, Texas has six additional executions scheduled for between now and November 17, 2021.  I cannot help but wonder if some or all of these condemned inmates on Texas death row will now request that a religious official be allowed to physically touch them and/or audibly pray in the execution chamber while they are put to death.  If any or all other Texas inmates on death row now make such a religious request and it is denied by prison officials (and/or if Alabama and Missouri inmates scheduled to be executed in October make similar requests), wouldn't the balance of equities support a short stay of these other scheduled executions until the Supreme Court rules in Ramirez?

Perhaps Texas and other state officials will seek to go forward with executions despite any new Ramirez-type requests by other condemned inmates for religious accommodations in the execution chamber by asserting that any new request is not made in good faith and is only a last-minute (and too-late) effort to delay an execution.  But couldn't  an inmate respond, perhaps in good faith, that he did not even think such a religious accommodation was possible until John Ramirez litigated this issue and the Supreme Court decided to take it seriously.  I sense lower courts might be particularly wary of trying to judge whether a dying inmate's religious request is sincere.  Moreover, the fact that SCOTUS has fast-tracked this case might also enable death row inmates and their counsel to argue that any execution postponement to resolve a requested Ramirez-type religious accommodations would likely last only a few months.

Am I missing something and/or am I crazy to think that the SCOTUS cert grant in Ramirez could produce a short de facto execution moratorium until the Justices issue an opinion in Ramirez

September 9, 2021 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (7)

Rounding up another round of terrific new essays at Inquest

It has been a couple of weeks since I blogged 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 while I have been busy on other fronts, the site continues to churn out must-read essays and so I must do another post to spotlight these additional recently added pieces:

From David Alan Sklansky, "An American Invention: In the struggle to end mass incarceration, one must understand how the criminalization of violence is largely a modern creation."

From Marlon Peterson, "A Disruptive Innovation: Dismantling the machine that is mass incarceration requires all of us to think outside the box."

From Katherine Beckett, Forrest Stuart & Monica Bell, "From Crisis to Care: For alternative responses to policing to work and reduce the footprint of the criminal legal system, they must work in concert and holistically to address both immediate and longer-term social needs."

From Kristin Henning, "Fear of the Black Child: American society and its criminal legal system simply won’t let Black kids be kids."

September 9, 2021 in Recommended reading | Permalink | Comments (0)

Is California's overall crime rate really at its lowest level ever recorded?

Image-fullThe question in the title of this post is prompted by this new report from the Center on Juvenile and Criminal Justice which is titled "California’s Crime Rate Falls To A Record Low In 2020; Counties With High Incarceration Rates Have More Crime And Worse Trends."  Here are excerpts from the report (cites preserved, click through for data and sources):

In the weeks leading up to the recall election of California Governor Gavin Newsom, crime has become a hot-button issue (David Binder Research, 2021; Gutierrez, 2021).  Unfortunately, rather than rationally analyzing crime, the press and some candidates and interest groups publicize anecdote-based claims featured in headlines such as, “California is seeing a crime surge,” or “San Francisco’s shoplifting surge” (Fuller, 2021; Walters, 2020).  While some press outlets have helped to correct such deceptive stories, fact checking typically comes after the damage is done (e.g., Neilson, 2021). The real trends in California crime contain reasons for both calm and concern (DOJ, 2021).

• California’s overall crime rate fell 6 percent in 2020, reaching its lowest level ever recorded.

Of the eight Part I felonies in the FBI’s index of crime, four increased from 2019 to 2020 and four declined.  Overall, the Part I crime index has fallen steadily over the last 20 years (including a 6 percent decline in 2020, amid the COVID-19 pandemic), with all eight index offenses showing declines during that period.  The state’s index crime rate in 2020 was the lowest ever recorded since the index was created in 1969.

• Homicide rates rose 31 percent in 2020 but remain below levels seen from 1968 through 2008.

California, then, is not experiencing an overall “crime surge.”  The state did, however, suffer a 31 percent increase in both homicide deaths and reported homicides in 2020 compared to 2019. However, rates remain well below levels for the entire 40-year period from 1968 through 2008, during the state’s “tough-on-crime” era. Homicide, though a rare crime, profoundly affects communities’ sense of safety.

• Low-incarceration counties have half as many homicides per capita as high-incarceration counties.

An examination of jail (BSCC, 2021), prison (CDCR, 2021), and crime data shows that counties with the lowest rates of incarceration also have lower rates of homicide and shoplifting—two offenses that have garnered the most media attention.  This counters an assumption by recall proponents, too often echoed uncritically in the press, that counties with progressive district attorneys have pursued policies they label “lenient” and “no-consequence” that are responsible for more crime (see Arango, 2021; Levenson, 2021; Stringini, 2021; Wallace-Wells, 2021).

September 9, 2021 in National and State Crime Data | Permalink | Comments (0)

Interesting look at efforts to shine more light on, and get better results from, New York parole practices

Via email I learned of this lengthy article in the Fordham Law magazine discussing the interesting work of Fordham Law's Parole Information Project.  Here is part of the article (with links from the original):

Just as the pandemic has revealed racial disparities in access to health care (and vaccines), dig into New York State’s parole process and you will find racial disparities in access to justice.  An analysis by Albany’s Times-Union newspaper found that of 19,000 parole decisions made in New York State over the past two years, 41 percent of white inmates in New York State prisons were granted parole, while only 34 percent of Black inmates and 33 percent of Hispanic inmates were paroled.  And an earlier study by The New York Times found that fewer than one in six Black or Hispanic men were released at their first hearing, compared with one in four white men.

Overall, 12,000 incarcerated individuals are considered for parole in New York State every year, and a large majority are denied.  Worse, most of the families and pro bono lawyers who are trying to help these prisoners will never know why — the process is that opaque....

“Too often, with issues around mass incarceration, we look at the beginning of the system: who is getting arrested, the sentences they are getting,” says [Martha] Rayner, {who co-directs Fordham Law School’s Criminal Defense Clinic].  “But more and more, there’s a new understanding that if we are going to decarcerate [the prison population], parole is a key area of reform.”

Fordham Law School is on the cutting edge of that reform with its Parole Information Project, a unique database of parole documents that aims to make the archaic, Byzantine parole and parole-appeal process in New York State easier to navigate and more transparent.

With nearly 1,000 parole board transcripts and interviews, assessment reports, and appeal decisions online, all in a searchable, free, and publicly accessible database, it’s possible for families, advocates, attorneys, and, really, anyone, to discover which parole commissioners are making what decisions and exactly what happens in those once-mysterious parole and parole-appeal meetings, and to look for patterns and precedents that can aid anyone focused on parole be more effective and powerful in their efforts.

Now, in the wake of Black Lives Matter as well as two pending New York State laws aimed at reforming the parole system, Fordham Law’s parole project is ramping up. A $100,000 grant from Goldman Sachs will pay for a fellow focused on parole work and add crucial resources to expand the program. “The stars are aligned,” says Rayner, referring to both the grant and the aforementioned two New York State laws up for consideration that could make it easier for those eligible for parole to get it: the Fair and Timely Parole bill and The Elder Parole Bill.

The grant will also go a long way toward helping the parole project team overcome a number of challenges, as well as continue to grow the database. “For any meaningful statistical information, you need a certain volume of documents, and it takes time to get them, to redact names of individuals for privacy, and to revise the database to stay up to date with the most current laws,” explains Yael Mandelstam, the Maloney Library’s associate librarian for technical services.

September 9, 2021 in Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

September 8, 2021

SCOTUS stays Texas execution and grants cert on death row inmate's request for pastor's touch during execution

Texas was scheduled to execute John Ramirez this evening, but the Supreme Court blocked the effort as reported here at SCOTUSblog:

The Supreme Court agreed to postpone the execution of John Ramirez, who was scheduled to die on Wednesday night in Texas.  The last-minute respite will allow the justices to fully consider Ramirez’s request that his pastor be allowed to physically touch Ramirez and audibly pray in the execution chamber while Ramirez is put to death.

Ramirez’s emergency application was the latest in a series of shadow-docket requests in the past two years involving spiritual advisers at executions. But the justices are now poised to weigh in more definitively on the rights of inmates to have spiritual advisers at their side in their final moments: In the brief order putting Ramirez’s execution on hold, the court agreed to hear Ramirez’s appeal on its regular docket this fall.

Ramirez, who was sentenced to death for the 2004 murder of convenience-store clerk Pablo Castro, asked to have his Baptist pastor, Dana Moore, put his hands on Ramirez’s body and pray out loud as Ramirez is executed.  After Texas refused to grant that request, Ramirez went to federal court in August.  The district court rejected Ramirez’s bid to postpone his execution last week, and the U.S. Court of Appeals for the 5th Circuit turned down his plea to intervene.

The four cases that have previously reached the court centered on whether spiritual advisers could be present in the execution chamber at all....  Ramirez’s case involved a slightly different issue: what kind of aid a spiritual adviser can (and cannot) provide during an execution.  Ramirez came to the Supreme Court on Tuesday, asking the justices to put his execution on hold and to review his case on the merits.  He stressed that his filing was not a last-minute effort to delay his execution, because he had first raised the spiritual-adviser question over a year ago.  The state’s refusal to allow Moore to touch him and pray out loud, Ramirez argued, violates both his constitutional rights and the federal law guaranteeing religious rights for inmates.  Under the Texas policy, Ramirez emphasized in his reply brief on Wednesday, the execution chamber would be “a godless vacuum,” with Moore “no different from a potted plant.”...

In an order issued shortly before 10 p.m. EDT, the justices agreed to stay Ramirez’s execution and to hear his appeal on the merits. The court indicated that the case should be fast-tracked, with oral argument set for either October or November. There were no public dissents from Wednesday’s order.

September 8, 2021 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

"States of Incarceration: The Global Context 2021"

The title of this post is the title of this notable new report from the Prison Policy Initiative authored by Emily Widra and Tiana Herring.  Here is part of the start of the report:

Louisiana once again has the highest incarceration rate in the U.S., unseating Oklahoma to return to its long-held position as “the world’s prison capital.”  By comparison, states like New York and Massachusetts appear progressive, but even these states lock people up at higher rates than nearly every other country on earth.  Compared to the rest of the world, every U.S. state relies too heavily on prisons and jails to respond to crime....

If we imagine every state as an independent nation ... every state appears extreme.  24 states would have the highest incarceration rate in the world — higher even than the United States.  Massachusetts, the state with the lowest incarceration rate in the nation, would rank 17th in the world with an incarceration rate higher than Iran, Colombia, and all the founding NATO nations.

In fact, many of the countries that rank alongside the least punitive U.S. states, such as Turkey, Thailand, Rwanda, and Russia, have authoritarian governments or have recently experienced large-scale internal armed conflicts. Others struggle with “violent crime” on a scale far beyond that in the U.S.: South Africa, Panama, Costa Rica, and Brazil all have murder rates more than double that of the U.S.  Yet the U.S., “the land of the free,” tops them all....

The incarceration rates in every U.S. state are out of line with the entire world, and we found that this disparity is not explainable by differences in crime or “violent crime.”  In fact, there is little correlation between high rates of “violent crime” and the rate at which the U.S. states lock people up in prisons and jails.

When we compare U.S. states and other nations in terms of both “violent crime” and incarceration, we find ourselves more closely aligned with nations with authoritarian governments or recently large-scale internal armed conflicts.  Rather than any of the founding NATO member countries traditionally compared to the United States, the only countries that approach the incarceration rate and “violent crime” rates of the 50 states are El Salvador, Panama, Peru, and Turkey.  Every U.S. state, and the United States as a nation, is an outlier in the global context.  No other country incarcerates as many people, including countries with similar rates of “violent crime.”

September 8, 2021 in Prisons and prisoners, Scope of Imprisonment, Sentencing around the world | Permalink | Comments (0)

BJS releases more notable new recidivism data, examining arrests over 10 years for state prisoners released in 2008

In this post from July, I flagged the Bureau of Justice Statistics' notable new report about the recidivism rates over five years for a set of state prisoners released in 2012. Today BJS released another new "special report" on recidivism, this one titled "Recidivism of Prisoners Released in 24 States in 2008: A 10-Year Follow-Up Period (2008–2018)."  Here is the introduction and "Highlights" from the first page of the report:

Among persons released from state prisons in 2008 across 24 states, 82% were arrested at least once during the 10 years following release.1 The annual arrest percentage declined over time, with 43% of prisoners arrested at least once in Year 1 of their release, 29% arrested in Year 5, and 22% arrested in Year 10.

The Bureau of Justice Statistics (BJS) used prisoner records from the National Corrections Reporting Program and criminal history data to analyze the post-release offending patterns of former prisoners both within and outside of the state where they were imprisoned.  This report presents findings from BJS’s first study of prisoner recidivism over a 10-year period.  The study randomly sampled about 73,600 released prisoners to represent the approximately 409,300 state prisoners released across 24 states in 2008.  These states provided prisoners’ records and the FBI or state identification numbers that are needed to obtain criminal history data on the released prisoners.

These 24 states were responsible for 69% of all persons released from state prisons that year nationwide.

HIGHLIGHTS:

  • About 66% of prisoners released across 24 states in 2008 were arrested within 3 years, and 82% were arrested within 10 years.

  • The annual arrest percentage among prisoners released in 2008 declined from 43% in Year 1 to 22% in Year 10.

  • About 61% of prisoners released in 2008 returned to prison within 10 years for a parole or probation violation or a new sentence.

  • Sixteen percent of prisoners released in 2008 were arrested within 10 years outside of the state that released them.

  • Ninety percent of prisoners who were age 24 or younger at the time of release in 2008 were arrested within 10 years of release. A smaller percentage of those who were ages 25 to 39 (85%) and age 40 or older (75%) at the time of release were arrested within 10 years of release.

  • Seventy-five percent of drug offenders released from prison in 2008 were arrested for a nondrug crime within 10 years.

  • During the 10-year follow-up period, an estimated 2.2 million arrests occurred among the approximately 409,300 prisoners released in 2008.

A few of many prior recent related posts:

September 8, 2021 in National and State Crime Data, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (0)

September 7, 2021

After being a modern criminal justice reform success story, is Texas back to its "tough and tougher" past?

The question in the title of this post is prompted by this notable new Texas Monthly article fully  headlined "Who Killed Criminal Justice Reform?: The state was once a model of how to safely move away from mass incarceration.  Now the old politics of 'law and order' are back."  The lengthy piece is worth reading in full, in part because it details some political dynamics that extend far past the Lone Star State. Here are excerpts:

Rick Perry ... often boasted about his role in downsizing the Texas prison system.  When he became governor in 2000, the Texas prison population had quintupled over the previous twenty years — swelled by thousands of small-time drug offenders and others convicted of nonviolent crimes, who cost the state hundreds of millions of dollars a year to incarcerate with little clear benefit to public safety. Faced with this profligate use of tax dollars, Perry explained, he had had no choice but to speak truth to power.  “Let my people go,” the governor said, like Moses to Pharaoh.  Armed with this conviction, he signed dozens of bills that helped free the wrongfully convicted and kept nonviolent offenders from going to jail. 

The incarcerated population declined enough that Texas was able to close three prisons. The state’s reforms became a model for others, and justice rolled down like water.  As lawmakers were quick to point out, however, Perry was hardly parting the seas.  Mostly, he managed not to stand in the way of bills passed by the Legislature.  But even that was significant.  While the rest of the country was still carrying on in the tradition of the tough-on-crime nineties, Texas stood apart.

How times have changed.  If Perry’s successor, Governor Greg Abbott, launches his own presidential run, he will do so while proudly proclaiming that, like Pharoah to Moses, he held his ground and said, “Not so fast.” Abbott has joined a counterrevolution, allowing his antipathy toward Democratic officials to outweigh the effectiveness of policies embraced by much of his party.  Take, for instance, his treatment of Dallas judge John Creuzot, who years earlier convinced Perry to support drug courts, which offer treatment rather than incarceration for low-level offenders. In 2018 Creuzot was elected Dallas County district attorney and soon announced that his office would no longer prosecute small-time drug offenses and other petty crimes that often involve the poor, mentally ill, and unhoused.  He was quickly pilloried by Abbott and Attorney General Ken Paxton, who accused him of “abandon[ing] the rule of law.”

These days, the Legislature isn’t doing much reforming either.  During recent sessions, proposed improvements to the criminal justice system have been blocked by powerful police lobbies and their supporters in state government.  One of the most anticipated pieces of legislation this year would have barred police from arresting Texans for most Class C misdemeanors — including traffic violations, such as the one that prompted the confrontation that led to Sandra Bland being placed in the Waller County jail cell where she reportedly killed herself.  A somewhat watered-down version of the bill passed the House during the regular session with the support of the Republican Speaker — the culmination of years of effort from disparate groups. But it never even received a hearing in the Senate, where Lieutenant Governor Dan Patrick has revived the law-and-order crusade of decades past.  Its demise marked the third time in three sessions that a version of the bill has failed to pass.

Reformers have watched with a mixture of disbelief and dismay as the bipartisan consensus has crumbled. “This year it became evident that police reform of even the smallest sort cannot occur in Texas while Greg Abbott and Dan Patrick remain in office,” Austin writer Scott Henson recently noted on his criminal justice blog, Grits for Breakfast.

And it’s not just on police reform that progress has stalled. During the special sessions he called this summer, Abbott pushed legislation intended to reverse some of the gains made in fixing Texas’s archaic bail system.  For years, Texas cities, particularly Houston, have taken strides to reduce their reliance on cash bail, which ensures that many poor and mentally ill defendants arrested for comparatively minor crimes stay stuck in county jails for months. Bail reform is supported not just by criminal justice activists and Democratic local elected officials; Nathan Hecht, the Republican chief justice of the Supreme Court of Texas, has called for a complete overhaul of the way courts handle pretrial detention. But the bail bill pushed by state leaders aimed to strengthen the role cash bail plays.

Abbott and his allies are responding to a real issue, as well as a political opportunity.  Rising rates of violent crime, especially in large cities, have prompted politicians of all stripes to offer solutions.  For many, and particularly for conservatives, a well-worn playbook — more police, less tolerance toward even petty crimes — is an obvious answer.  In addition, the racialized backlash to the Black Lives Matter protests of last year has made some Republicans skittish about criminal justice reform.  Calls by some progressives to “defund” the police at a time when crime is rising have handed Republicans a winning campaign issue....

Many conservatives are wobbling because of larger political dynamics.  Police reform went from a relatively sleepy matter to a supercharged issue intertwined with the culture wars.  Republicans in Austin are peeved with the state’s big-city mayors, district attorneys, and county officials.  These figures, mostly Democrats, now serve as the face of the reform movement, loudly declining to prosecute low-level offenses and attempting to hold police responsible for misconduct.  The conservative news outlets and Facebook feeds that have amplified an endless stream of footage of protests and riots have made many viewers feel as if anarchy were descending on the country — and that the thin blue line needed to be strengthened, not “defunded.”

The rising murder rates in most Texas cities during the pandemic haven’t helped the movement either.  Violent crimes such as homicide and robbery are still less common than during much of the seventies, eighties, and nineties.  But that doesn’t make much of a difference in public perception.

There’s another significant factor contributing to the backsliding.  “This is a Trump thing,” Henson says.  During his time in office, the former president — who, on the campaign trail, exploited fears of crime, especially when suspects were Black or Latino — promised to punish wrongdoers and maintain order in ways that Republicans had recently deemphasized.  Henson says Trump’s approach rubbed off.  Patrick and Abbott have started talking tougher.  Speaker Dade Phelan, meanwhile, often talks like a reformer of the Perry era.

Those brief years may have been an aberration, rather than a fundamental shift in the state’s approach to criminal justice, Henson says.  The post–Civil War era saw the introduction of a regime of forced labor designed to control freed slaves and others who were regarded as undesirable.  During the sixties the Legislature responded to the civil rights movement by effectively trying to criminalize nonviolent protest.  In the nineties, Ann Richards bragged that she had added 75,000 prison beds and “cut parole by two thirds.”  And it’s easy to overstate how much progress Texas has made: Yes, the number of Texans who are incarcerated as a percentage of the state’s population continues to decrease.  But according to the most recent figures, our incarceration rate ranks higher than that of all but five other U.S. states.

Still, not everyone is as pessimistic as Henson. Marc Levin, the former Right on Crime policy director, thinks the sour national political climate could shift.  “We’re kind of seeing the crime rate level off” in major cities, he says.  (Though the murder rate has continued to climb, statisticians say the growth in the rate has slowed in the first six months of this year.)  It’s possible, he says, that last year’s crime spike was caused in large part by the disruptions of the pandemic and that things will soon settle down.

Though Trump’s rhetoric was often harsh, he signed important reforms into law, notably the First Step Act, which reduced some draconian federal prison sentences and sought to improve conditions in federal lockups.  Conservatives are now more willing to make substantial investments in the mental health-care system (such as updating the state’s aging psychiatric hospitals) and other alternatives to incarceration, Levin says.  He believes that the elements of the criminal justice debate that seem to trigger right-leaning voters — “antifa” and “defunding” the police — may lose their power to terrify.

September 7, 2021 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (1)

"Life lessons: Examining sources of racial and ethnic disparity in federal life without parole sentences"

The title of this post is the title of this notable new article published in Criminology and authored by Brian Johnson, Cassia Spohn and Anat Kimchi.  Here is its abstract:

Alongside capital punishment, sentences to life without the possibility of parole are one of the most distinctive aspects of the American system of criminal punishment.  Unlike the death penalty, though, almost no empirical work has examined the decision to impose life imprisonment.  The current study analyzes several years of recent federal sentencing data (FY2010–FY2017) to investigate underlying sources of racial disparity in life without parole sentences.  The analysis reveals disparities in who receives life imprisonment, but it finds these differences are attributable mostly to indirect mechanisms built into the federal sentencing system, such as the mode of conviction, mandatory minimums, and guidelines departures.  Both Black and Hispanic offenders are more likely to be eligible for life sentences under the federal guidelines, but conditional on being eligible, they are not more likely to receive life sentences.  Findings are discussed in relation to ongoing debates over racial inequality and the growing role that life imprisonment plays in American exceptionalism in punishment.

September 7, 2021 in Data on sentencing, Federal Sentencing Guidelines, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

Noting that, with fewer executions, those on death row are growing even older

This new piece at The Crime Report authored by Maria DiLorenzo, which is titled "Growing Old on Death Row," highlights that many of those on death row these days are really serving a sentence of "a long confined aged" life behind bars.  Here are excerpts:

In the 36 years that David Carpenter has been on death row at San Quentin State Prison in California, his routine has rarely changed. He awakens early in the morning and exercises, despite suffering from arthritis, in the cramped space of his single-bunk cell before eating breakfast.  Three days a week, he has access to a yard outside.

Once a month he attends a church service, one of the few activities that allows him time out of his cell, aside from medical appointments and visiting with friends and family, which he used to do regularly prior to COVID restrictions that have made the prison more isolated.  But most of the time, he stays inside his cell, which he’s grateful he does not have to share with anyone else. “I control my lights,” he tells The Crime Report in an interview via snail mail.  “I have my 15-inch color television.  I can go to sleep when I want to at night, take a nap during the day, and write letters and read when I want to.  I have the freedom in a single cell that I would not have in a two-man cell.”

At the age of 91, there’s one other thing he can be grateful for.  In 2019, California Gov. Gavin Newsom suspended capital punishment. As long as Newsom remains governor, executions will not occur, which has effectively given Carpenter a lease on life.  He is keenly aware of the irony.  “Because no one has been executed in California, death row inmates (in this state) have grown older with each passing year,” he acknowledged in his note to The Crime Report. “If California was like Texas, [which] executes people shortly after being found guilty and [sentenced to death] I would have been executed years ago.”

In 1984, Carpenter, also known as The Trailside Killer, was sentenced to death for shooting and killing two women.  Then, in 1988, he was found guilty of murdering five women, raping two others, and attempting to rape a third.  He was later tried and convicted of two additional murders and an attempted murder....

Carpenter, now one of the oldest individuals awaiting execution in the U.S., belongs to a growing segment of the prison demographic. In 2019, according to the Death Penalty Information Center, some 574 prisoners on death row in the U.S. were aged 60 or over. In 1996 that figure was just 39....

Some 1,200 of the 2,800 inmates awaiting execution are aged 50 and over.  Demographic trends suggest that over-50 population will increase, as America’s death rows are increasingly transformed into high-cost homes for senior citizens....  [A]s courts scrutinize details of appeals, men and women condemned to death are not only growing old, but becoming afflicted with dementia or other disabling diseases of age.  Since 2000, 11 death row inmates ranging in age from 65 to 77 have been executed.  Some, according to scholars.org, ‘were disabled, demented, or both.”

And as more states reject or sidestep capital punishment, the issue of what do with aging prisoners on death row presents a dilemma with moral, constitutional and economic dimensions.  Some critics argue that keeping ailing and enfeebled individuals behind bars―some with no memory of the crime they are in for ― is a violation of the Eighth Amendment prohibition against cruel and unusual punishment.

But it also raises questions about whether a system in which capital punishment is invariably accompanied by a long appeals process that leaves people to grow old on Death Row makes sense. “One way is just to substitute life without parole for death,” Fox told The Crime Report. “You keep them off the street, which is the desire that people have, and keep them in prison longer… I understand that people are worried about the cost, (but) death row trials are very expensive. They’re longer, they have more witnesses, more experts.”

It is not quite right to say that Texas executes people shortly after they are found guilty.  This website listing the next eight Texas execution dates (one of which is tomorrow) reveals that all eight of these condemned men have been on death row for more than a decade and a few have been there for a quarter century or longer.  Still, with California having over 700 persons on its death row, while not having completed a single execution in over 15 years, it is fitting that someone like The Trailside Killer from the Golden State is the featured focal point for a discussion of aging on death row.

September 7, 2021 in Data on sentencing, Death Penalty Reforms, Offender Characteristics, Prisons and prisoners | Permalink | Comments (2)

September 6, 2021

"If Democrats don't think Robert Kennedy’s assassin deserves parole, do they really support criminal justice reform?"

The question in the title of this post is the subtitle of this new MSNBC commentary authored by Chris Geidner.  The main headline is "California may parole Robert Kennedy's assassin. Liberals aren't happy."  Here are excerpts:

Sirhan Sirhan, who was convicted of murdering Robert F. Kennedy 53 years ago, has been recommended for release by the California Board of Parole Hearings.  But, in a misguided effort that serves to reinforce the harsh practices that led to our incarceration explosion, some Democrats are fighting against the 77-year-old’s release. In doing so, they’re helping fuel the tough-on-crime rhetoric most often voiced these days by Republicans.

Sirhan was originally sentenced to death for murdering the presidential candidate and former attorney general as he campaigned in Los Angeles, but in 1972 his sentence was commuted to life in prison with the possibility of parole.

Sirhan has been denied parole 15 times — most recently in 2016. But on Aug. 27, the California parole board recommended his release.  After that recommendation, we quickly were reminded that the assassination from 53 years ago remains a present and painful memory to many Americans. It also became clear that some Democrats and progressives are willing to make exceptions to the criminal justice reforms they’ve claimed to support.

“I can’t pretend to know what’s going on in people’s minds,” Sirhan’s lawyer, Angela Berry, told me after the parole board’s recommendation.  “I think that wound is just so strong for people. They just can’t see that the board followed the law.”

That “they” includes opportunistic, “tough on crime” conservatives — but also liberal and progressive Democrats. “The news of Sirhan’s potential release hit me hard this weekend,” filmmaker Michael Moore wrote. “No, this assassin must not be set free.”

Few have voiced their opposition as loudly as Harvard Law School Professor Emeritus Laurence Tribe.  A longtime prominent liberal voice, Tribe has been on a nonstop campaign to stop Sirhan’s parole. Before the parole panel even met — with no apparent investigation, let alone evidence — Tribe, referring to Sirhan, wrote on Twitter, “Even at 77, he could be a threat.”...

Sirhan has been eligible for parole for several decades.  “The law presumes release unless the person poses a current unreasonable risk to the public,” Berry said.  “There wasn’t one iota of evidence to suggest this man is still dangerous.” The documents Sirhan submitted to the parole board included evidence from the state’s own experts that Sirhan “represents a Low risk for violence” and noted that his current age qualifies him for “elderly prisoner consideration” and the age at which he committed his crime means he should be treated as a “youthful offender.”...

Our system has become extremely carceral, but in 1972, when Sirhan was sentenced to life with the possibility of parole, the idea that someone would serve more than 50 years in prison was way outside the norm.  As his submission to the parole board noted, “The proscribed punishment for first degree murder in 1968 was life with parole eligibility after 7 years.”  Throughout the country, we've not only increased sentences exponentially since then, but we've also decreased the use and availability of parole and clemency and deemed more activities criminal.

Democratic opposition to letting California’s parole system work as intended is a problem for a party that claims to support criminal justice reform.  Reformers in both parties have set goals to end over-sentencing, expand the use of clemency and parole and end overcriminalization.  But when Tribe, and even the Kennedys, speak in opposition to Sirhan’s parole, opponents of reform hear their “tough on crime” refrains being justified....

After initially arguing against Sirhan’s release, Moore wrote that his sister, a public defender, persuaded him to think more deeply about his position.  “If the Governor decides to let him go, I will try to find my peace with that,” Moore wrote.  “While offering my love to Kennedy’s family. And recommitting myself to the efforts of bringing about a more just system.”

A more just system means so many things, but, specifically here, it means letting parole work, and it means understanding that turning prisons into nursing homes for people who were practically children when they committed crimes is not only a financial mistake, it misunderstands our knowledge that people change and that older people overwhelmingly do not commit crimes.

Prior related posts:

September 6, 2021 in Celebrity sentencings, Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

September 5, 2021

A long weekend wrap up with a long reading list

A busy week before a busy long weekend has left me with a long reading list of press and commentary pieces on a variety of sentencing and other criminal justice issues. Here is just part of this list with links:

From CBS News, "Inmates on home confinement could be sent back to prison after the pandemic: "Why make us go back and do it again?""

From The Guardian, "What I learned visiting Alaska’s only maximum-security prison"

From Insider, "Arkansas jail inmates say they were unknowingly given unproven COVID-19 treatment ivermectin: 'They were running experiments on us'"

From Jacobin magazine, "More Criminalization Isn’t the Answer to Gun Violence"

From The Oregonian, "Multnomah County DA Mike Schmidt hires criminal defense lawyer to review past convictions, sentences"

From Politico, "How Progressives Are Knocking Out Local Judges Across the Country"

From NBC News, "Some prison labor programs lose money — even when prisoners work for pennies"

From the New York Times, "In the Eyes of God, Does a State Have the Right to Kill a Man?"

From NPR, "Crowded U.S. Jails Drove Millions Of COVID-19 Cases, A New Study Says"

From Slow Boring, "The rapidly shifting Hispanic experience of American criminal justice"

September 5, 2021 in Prisons and prisoners, Who Sentences | Permalink | Comments (0)

More than two dozen attorneys general urge Congress to extend crack retroactivity to offenders left behind by Terry

Back in June, as discussed here, the Supreme Court embraced a limiting interpretation in Terry v. US, No. 20–5904 (S. Ct. 2021), as to who can secure resentencing based on crack penalties being lowered by the Fair Sentencing Act and then made retroactive by the FIRST STEP Act.  As detailed in this press release from the Michigan Attorney General, this past week "a bipartisan coalition of 25 attorneys general [signed a letter] urging Congress to amend the First Step Act and extend critical resentencing reforms to individuals convicted of the lowest-level crack cocaine offenses."  The full letter is available at this link, and here are excerpts from the start and close of the letter:

As our jurisdictions’ Attorneys General, we are responsible for protecting the health, safety, and well-being of our residents. Although our jurisdictions vary in size, geography, and political composition, we are united in our commitment to an effective criminal justice system that safeguards the communities of our states. To that end, a bipartisan coalition of Attorneys General supported the passage of the First Step Act of 2018 — landmark legislation that brought common sense improvements to myriad aspects of the criminal justice system. Central to these reforms was retroactive relief for individuals sentenced under the discredited 100-to-1 crack-to-powder cocaine ratio that Congress abolished in 2010. Following the Supreme Court’s recent opinion in Terry v. United States, however, the lowest level crack cocaine offenders remain categorically ineligible for resentencing. We write today to urge Congress to amend the First Step Act, and to clarify that its retroactive relief applies to all individuals sentenced under the prior regime....

There is no reason why [lowest-level offenders] — and these individuals alone — should continue to serve sentences informed by the now-discredited crack-to-powder ratio. Discretionary relief is unambiguously available to serious dealers and kingpins sentenced under the prior regime; extending Section 404’s scope would simply allow individual users and other low-level crack cocaine offenders to have the same opportunity for a second chance. We therefore urge Congress to clarify that Section 404 of the First Step Act extends to all individuals convicted of crack cocaine offenses and sentenced under the 100-to-1 ratio—including the lowest level offenders.

September 5, 2021 in Drug Offense Sentencing, FIRST STEP Act and its implementation, New crack statute and the FSA's impact, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)