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December 11, 2021

New Harvard Law Review article details "The Incoherence of Prison Law"

The new issue of the Harvard Law Review has this notable new article authored by Justin Driver and Emma Kaufman and titled "The Incoherence of Prison Law."  Here is its abstract:

In recent years, legal scholars have advanced powerful critiques of mass incarceration.  Academics have indicted America’s prison system for entrenching racism and exacerbating economic inequality.  Scholars have said much less about the law that governs penal institutions.  Yet prisons are filled with law, and prison doctrine is in a state of disarray.

This Article centers prison law in debates about the failures of American criminal justice.  Bringing together disparate lines of doctrine, prison memoirs, and historical sources, we trace prison law’s emergence as a discrete field — a subspeciality of constitutional law and a neglected part of the discipline called criminal procedure.  We then offer a panoramic critique of the field, arguing that prison law is predicated on myths about the nature of prison life, the content of prisoners’ rights, and the purpose of penal institutions.  To explore this problem, we focus on four concepts that shape constitutional prison cases: violence, literacy, privacy, and rehabilitation.  We show how these concepts shift across lines of cases in ways that prevent prison law from holding together as a defensible body of thought.

Exposing the myths that animate prison law yields broader insights about judicial regulation of prisons.  This Article explains how outdated tropes have narrowed prisoners’ rights and promoted the country’s dependence on penal institutions. It links prison myths to the field’s central doctrine, which encourages selective generalizations and oversimplifies the difficult constitutional questions raised by imprisonment.  And it argues that courts must abandon that doctrine — and attend to the realities of prison — to develop a more coherent theory of prisoners’ constitutional rights.

December 11, 2021 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (3)

"Protective State Policies and the Employment of Fathers with Criminal Records"

I just recently saw this recent article, which shares the title of this post, authored by Allison Dwyer Emory and published online via the journal Social Problems.  Here is its abstract:

A criminal record can be a serious impediment to securing stable employment, with negative implications for the economic stability of individuals and their families. State policies intended to address this issue have had mixed results, however.  Using panel data from the Fragile Families study merged with longitudinal data on state-level policies, this study investigates the association between criminal record based employment discrimination policies and the employment of men both with and without criminal records.  These state policies broadly regulate what kinds of records can be legally used for hiring and licensing decisions, but have received little attention in prior research.  Findings indicate that men with criminal records were less likely to be working if they lived in states with more policies in place to regulate the legal use of those records.  Consistent with research linking policies regulating access to records to racial discrimination, black men living in protective states reported this employment penalty even if they did not have criminal records themselves.  Thus, these policies, at best, may fail to disrupt entrenched employment disparities and, at worst, may exacerbate racial discrimination.

December 11, 2021 in Collateral consequences, Race, Class, and Gender, Reentry and community supervision | Permalink | Comments (0)

December 10, 2021

FIX Clemency Act introduced in US House seeking to fix broken federal clemency process

As reported in this new Insider article, headlined "Congressional progressives back new bill to radically change the 'broken' clemency system," today a notable new federal bill was introduced seeking to fix the federal sentencing process.  Here are the basics:

The "FIX Clemency Act," introduced Friday by Rep. Ayanna Pressley, a Democrat from Massachusetts, calls for a nine-person board that would be responsible for reviewing petitions for clemency and issuing recommendations directly to the president. The recommendations would also be made public in an annual report to Congress. At least one member of the panel would be someone who was previously incarcerated.

"Clemency works, but the current system is broken and denies thousands of people the chance of redemption and justice," Pressley told Insider. "It is long overdue that the president uses his clemency authority to address the generations of systemic injustices that have created the mass incarceration crisis," she said, arguing that her bill was a "critical" part of that effort.

The proposal, endorsed by the ACLU and the NAACP, comes as advocates of clemency reform are increasingly frustrated with the administration. Since taking office, President Joe Biden has not used his clemency power — a fact that is not unusual at this point in a new presidency, but a disappointment to those who see it as an area where the White House can immediately and unilaterally reform the criminal justice system....

The bill introduced Friday would eliminate the Office of the Pardon Attorney, transferring its functions to the new board, and guarantee that all requests for pardon or commutation be reviewed within 18 months. Members of the new panel would include a representative from the Department of Justice, but also someone who has worked for a federal public defenders office.

During the 2020 campaign, a "unity" task force composed of Biden supporters and backers of Vermont Sen. Bernie Sanders recommended the creation of an independent clemency review board. The proposal is also in the Democratic Party's platform.

So far, however, the administration has given no indication that it endorses the reform. And its liberal critics say the federal criminal justice system is headed in the wrong direction. "2021 marks the first increase in 8 years of our federal prison population — that's nearly a decade of progress that has been wiped out," Rep. Cori Bush, a Democrat from Missouri and cosponsor of the new legislation, said in a statement....

"Fueled by the failed war on drugs, the mass incarceration epidemic that our nation faces has ruined lives, families and communities," Rep. Hakeem Jeffries, a New York Democrat who leads the House Democratic Caucus, said in a statement. "Our broken clemency system only deepens this pain, and we must transform it in a just, equitable and transparent manner."

Via Rep. Presssly's official website, here are links for the Bill Text and Bill Summary for this quite interesting and important bill.  This press release from that office, titled "Bill Establishes Independent U.S. Clemency Board to Review Applications, Transmit Recommendations Directly to President," starts this way:

Today, Congresswoman Ayanna Pressley (MA-07), along with Congresswoman Cori Bush (MO-01), Congressman Hakeem Jeffries (NY-08) and grassroots advocates, unveiled the Fair and Independent Experts in Clemency (FIX Clemency) Act, historic legislation to transform our nation’s broken clemency system and address the growing mass incarceration crisis. 

December 10, 2021 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (9)

"Bureau of Justice Statistics releases "Capital Punishment, 2020 – Statistical Tables"

Today the Justice Department's Bureau of Justice Statistics has released this new report with data on the administration of capital punishment in the United States through the end of 2020. (As I have noted before, though BJS provides great data on criminal justice administration, in the capital punishment arena the Death Penalty Information Center tends to have more up-to-date and more detailed data on capital punishment.)

This new BJS report provides notable and clear statistical snapshots about the death penalty in the US, and the document starts with this introduction and these "highlights" on the first two pages of a 26-page document:

At yearend 2020, a total of 28 states and the Federal Bureau of Prisons (BOP) held 2,469 prisoners under sentence of death, which was 94 (4%) fewer than at yearend 2019.  During 2020, the number of prisoners under sentence of death declined for the twentieth consecutive year.  California (28%), Florida (14%), and Texas (8%) held half of the prisoners under sentence of death in the United States on December 31, 2020.  The BOP held 51 prisoners under sentence of death at yearend.

Five states and the BOP executed a total of 17 prisoners in 2020.  The BOP executed 10 prisoners, which accounted for 59% of the executions carried out in 2020.

This report presents statistics on persons who were under sentence of death in 2020, state and federal death penalty laws in 2020, and historical trends in executions.  At yearend 2020, a total of 31 states and the federal government authorized the death penalty.

  • Colorado repealed the death penalty provision of its first-degree murder statute in July 2020, and the governor commuted the death sentences of the three prisoners under previously imposed sentences of death to life without the possibility of parole. ƒ
  • Seven states received a total of 14 prisoners under sentence of death in 2020, the smallest annual number reported since the U.S. Supreme Court invalidated capital punishment statutes in several states in 1972 (see Furman v. Georgia, 408 U.S. 238 (1972)).
  • ƒNineteen states removed a total of 91 prisoners from under sentence of death by means other than execution in 2020.
  • ƒDuring 2020, 17 states and the BOP reported a decrease in the number of prisoners held under sentence of death, 16 states reported no change, and no states reported an increase in the number of prisoners held under sentence of death.
  • ƒThe largest declines in the number of prisoners under sentence of death in 2020 occurred in California (down 24 prisoners) and Pennsylvania (down 14).
  • ƒThe majority (98%) of prisoners under sentence of death were male.
  • ƒAt yearend 2020, about 56% of prisoners under sentence of death were white and 41% were black.
  • Among prisoners under sentence of death at yearend 2020 with a known ethnicity, 15% were Hispanic. ƒ
  • Prisoners under sentence of death on December 31, 2020 had been on death row for an average of 19.4 years.
  • ƒPrisoners executed during 2020 had been on death row for an average of 18.9 years.

December 10, 2021 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data | Permalink | Comments (2)

December 9, 2021

Is Jussie Smollett likely to get probation after convictions on five low-level state felony counts of disorderly conduct?

Today seemed to be the day for high-profile convictions of TV stars (or maybe not-quite stars).  Not long after the federal conviction of Josh Duggar in Arkansas (basics here), a state jury in Chicago returned a guilty verdict on 5 of 6 counts brought against Jussie Smollett.  This AP piece provides the basics, as well as a sentencing forecast:

Former “Empire” actor Jussie Smollett was convicted Thursday on charges he staged an anti-gay, racist attack on himself nearly three years ago and then lied to Chicago police about it....

The jury found the 39-year-old guilty on five counts of disorderly conduct — for each separate time he was charged with lying to police in the days immediately after the alleged attack. He was acquitted on a sixth count, of lying to a detective in mid-February, weeks after Smollett said he was attacked.

Outside court, special prosecutor Dan Webb called the verdict “a resounding message by the jury that Mr. Smollett did exactly what we said he did.” Smollett “wreaked havoc here in the city for weeks on end for no reason whatsoever," then compounded the problem by lying under oath to the jury, Webb said....

Judge James Linn set a post-trial hearing for Jan. 27, and said he would schedule Smollett's sentencing at a later date. Disorderly conduct is a class 4 felony that carries a prison sentence of up to three years, but experts have said if convicted, Smollett would likely be placed on probation and ordered to perform community service.

The damage to his personal and professional life may be more severe. Smollett lost his role on the TV program “Empire” after prosecutors said the alleged attack was a hoax, and he told jurors earlier this week, “I’ve lost my livelihood.”

This local article, headlined "Here's what could happen during Jussie Smollett's sentencing after his guilty verdict," also suggests incarceration time is unlikely in this case:

A jury at the Leighton Criminal Court Building decided Smollett was guilty on five of six charges relating to false statements prosecutors said he made to Chicago police.

Those charges are listed as class 4 felonies, which are among the least serious felonies in Illinois, but can still carry potential prison time of up to three years. Experts have said Smollett will likely be placed on probation and ordered to perform community service due to his lack of criminal history.

"Because Mr. Smollett does not have a criminal history, there is a presumption that he would be given a form of probation," said Attorney Anthony Burch. "So I don't suspect that he would be taken into custody."

December 9, 2021 in Celebrity sentencings, Criminal Sentences Alternatives, State Sentencing Guidelines | Permalink | Comments (7)

Oklahoma completes final 2021 scheduled execution in the United States

As reported in this local article, headlined "Bigler Stouffer executed in Oklahoma without problems of previous lethal injections," the latest and last execution in Oklahoma took place this morning and here are the details:

Oklahoma executed inmate Bigler Jobe "Bud" Stouffer II Thursday without the issues that caused the last three lethal injections to be described as botched.

The convicted murderer was pronounced dead at 10:16 a.m. at the Oklahoma State Penitentiary. It was the state's second execution in a month and a half after the practice was halted for more than six years. "No vomiting, no erratic movements or anything like that. Just, you could see his chest moving as he appeared to breathe. That's about it," said one media witness, Sean Murphy of The Associated Press.

The execution process began at 10:01 a m., Corrections Department Director Scott Crow told reporters. Stouffer was declared unconscious at 10:06 a.m. For his last words, Stouffer said, "My request is that my Father forgive them. Thank you," media witnesses reported.

In a policy change, Stouffer was allowed to have his personal spiritual advisor, Baptist minister Howard Potts, in the execution chamber with him. Potts put a hand on Stouffer's foot and read from a Bible, witnesses said. Early in the process, the advisor said something that made Stouffer laugh.

At 79, Stouffer is the oldest inmate in Oklahoma history to be executed. He is the second oldest inmate to be executed in the nation since the U.S. Supreme Court reinstated the death penalty in 1976.

He was put to death by lethal injection for the fatal shooting of Putnam City elementary school teacher Linda Reaves in 1985. He maintained to the end he was wrongfully convicted. "He felt like if he couldn't prove his innocence while alive then his attorneys would prove it after he was gone," said Goforth, who works for The Frontier.

Three more executions are set for next year. As many as 26 more could be scheduled next year if death row inmates lose a legal challenge to the lethal injection process at a trial in Oklahoma City federal court. The trial is set to begin Feb. 28.

Stouffer filed his own legal challenge after his execution was set. He sought to have his execution delayed until after the trial but was turned down in court three times. The U.S. Supreme Court denied his last request for a stay about 8 a.m. Thursday.

His attorneys also had sought clemency for him. Gov. Kevin Stitt last week rejected a recommendation to commute his sentence to life in prison without the possibility of parole.

Stouffer spent more than three decades on death row because he was tried twice. He was first convicted in 1985. He was granted a retrial in 2000 when a federal appeals court agreed his defense attorneys had been inept. He was convicted again in 2003 but did not exhaust his appeals of that conviction until 2017....

After the execution, the family of the murder victim thanked the governor and Attorney General John O'Connor for their willingness to carry justice through. "Although long in coming, justice has prevailed," a cousin, Rodney C. Thomson, told reporters at the penitentiary....

His spiritual advisor told the Oklahoma Pardon and Parole Board in November that Stouffer turned his incarceration into a spiritual ministry and regularly shared his faith with other death row inmates.

According to this Death Penalty Information Center page, there are no more executions scheduled for 2021.  That means the total number of US executions this year was only 11, the lower total yearly number in more than three decades (there were 11 executions in 1988 in the US).  For a host of reasons, I am inclined to predict that execution numbers will start trending back up in coming years.  But, then again, almost everything about the administration of the death penalty in the United States has a way of becoming unpredictable.

December 9, 2021 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (2)

How many years and counting might reality TV star Josh Duggar now get after federal jury convictions on two child pornography charges?

The question in the title of this post is prompted by this celebrity trial news from the AP: "Former reality TV star Josh Duggar was immediately taken into custody Thursday after a federal jury convicted him of downloading and possessing child pornography." Here is more:

The jury in Fayetteville, about 140 miles (225 kilometers) northwest of Little Rock, found the 33-year-old Duggar guilty on one count each of receiving and possessing child pornography.  He faces up to 20 years in prison and fines of up to $250,000 for each count when he’s sentenced.... U.S. District Judge Timothy Brooks said sentencing will happen in about four months, Fayetteville TV station KNWA reported. “We respect the jury’s verdict and we look forward to continuing this fight on appeal,” said Justin Gelfand, one of Duggar’s defense attorneys.

Duggar and his large Arkansas family starred on TLC’s “19 Kids and Counting” until the network canceled the show in 2015 following revelations that he had molested four of his sisters and a babysitter. Authorities began investigating the abuse in 2006 after receiving a tip from a family friend but concluded that the statute of limitations on any possible charges had expired.

Duggar’s parents said he had confessed to the fondling and apologized . At the time, Duggar apologized publicly for unspecified behavior and resigned as a lobbyist for the Family Research Council, a conservative Christian group. Duggar later apologized for a pornography addiction and for cheating on his wife, calling himself “the biggest hypocrite ever.” The judge in the child porn case ruled that jurors could hear testimony about how in 2003, Duggar admitted to molesting four girls.  A family friend testified that Duggar told her about the abuse.

Federal authorities said they began investigating after a Little Rock police detective found child porn files were being shared by a computer traced to Duggar.  A federal agent testified in May that images depicting the sexual abuse of children, including toddlers, were downloaded in 2019 onto a computer at a car dealership Duggar owned.  Duggar’s attorney argued that someone else downloaded or uploaded the images onto Duggar’s computer.  But the jury wasn’t swayed.

This DOJ press release, titeld "Federal Jury Convicts Former Reality Television Personality for Downloading and Possessing Child Sexual Abuse Material," provides these additional offense details and more of the sentencing specifics:

According to court documents and evidence presented at trial, Joshua James Duggar, 33, of Springdale, repeatedly downloaded and viewed images and videos depicting the sexual abuse of children, including images of prepubescent children and depictions of sadistic abuse.  Duggar, a former reality television personality who appeared with his family on the TLC series “19 Kids and Counting,” installed a password-protected partition on the hard drive of his desktop computer at his used car lot in Springdale to avoid pornography-detecting software on the device.  He then accessed the partition to download child sexual abuse material from the internet multiple times over the course of three days in May 2019.  The password for the partition was the same one he used for other personal and family accounts.  Duggar downloaded the material using the dark web and online file-sharing software, viewed it, and then removed it from his computer....

Duggar was convicted of receipt and possession of child pornography. His sentencing date has not been scheduled yet.  Receipt of child pornography is punishable by a term of imprisonment of five to 20 years. Possession of child pornography depicting prepubescent children has a maximum penalty of 20 years of imprisonment as well.  A federal district court judge will determine any sentence after considering the U.S. Sentencing Guidelines and other statutory factors.

Though the exact sentencing range that Duggar will now face under the guidelines will depend on a lot of the particulars of his downloading activities, he is now certain to receive a federal prison term of at least five years due to his conviction on a receipt charge.  In addition, because the child porn guideline §2G2.2 has so many significant enhancement, he could be facing a guideline sentencing range of well over decade.  (Some USSC data for Fiscal Year 2020 here shows in Table 7 that the average national child porn sentence was about 8.5 years and the average sentence for child porn in the Western District of Arkansas was a few months over 7 years.  Though the child porn guidelines are quite harsh, they are the guidelines that judges depart down from most frequently.)

December 9, 2021 in Celebrity sentencings, Federal Sentencing Guidelines, Sex Offender Sentencing | Permalink | Comments (7)

Another reminder that Prez Biden has so far decided to forget using his clemency powers

The headline of this new Insider article, "Despite promises, Biden has yet to issue a single pardon, leaving reformers depressed and thousands incarcerated," captures the themes of the full piece effectively.  Regular readers will not find anything too new in this article, but it still serves as a useful review of where federal clemency matters stand as we approach the close of 2021.  I recommend this lengthy piece in full, and here are a few excerpts:

Nkechi Taifa, an attorney, activist, and leader of the progressive Justice Roundtable, ... [had an] early December meeting with Susan Rice, director of the Domestic Policy Council, and staff from the Office of the White House Counsel, [where] she implored the administration to act now [on clemency].

More than 7,700 federal inmates are currently on home confinement, granted release from prison on the grounds that they pose no security threat and are at a heightened risk of suffering severe complications from COVID-19. When the public health emergency is declared over, they could be forced to return. Leading Democrats, including Senate Whip Dick Durbin of Illinois, have argued it would be an injustice to send them back, urging the White House to consider granting clemency en masse.

In the meeting, White House staff appeared to agree, Taifa said. That's not the problem. "Their rhetoric says that they understand what we're saying, and that they're working on it," she said. The issue is the conversation is taking place in December. "If it's going to take this long for a first step, how long is it going to take for the rest?"...

"What we've got is this bureaucratic morass," Mark Osler, a former federal prosecutor, said in an interview. "There's seven levels of review, one after the other, and the first four levels are all in the Department of Justice, which of course is conflicted because they're the ones who sought the sentence in the first place."

The first step is the Office of the Pardon Attorney, which is currently led, on an acting basis, by Rosalind Sargent-Burns, a career department lawyer former Attorney General William Barr appointed. They then present their recommendations on who should get clemency to the deputy attorney general's office, where another staffer reviews it and passes it on — maybe — to their boss. Then it goes to the staff for the White House counsel, then the actual counsel, then an aide to the president and then, if all goes well, to Biden himself.

The president could, at any time, bypass this process. Trump did when he pardoned Arpaio and his other allies, such as Roger Stone and Steve Bannon. If anything, Osler, now a professor at the University of Saint Thomas, told Insider he thinks Biden is too committed to the way things were. It's one thing to respect the Justice Department's career bureaucracy when it comes to deciding who deserves prosecution but, he said, "it doesn't make sense in terms of clemency."

A White House official told Insider the president is "exploring the use of his clemency power" for non-violent drug offenders who were moved to home confinement at the start of the pandemic, a transfer authorized by the March 2020 CARES Act — specifically, those with fewer than four years left on their sentences (one activist who has engaged the White House expects those with less than two years remaining will also be excluded).  "At the same time," the official said, Biden "continues to consider requests for pardon and commutation that are submitted in the ordinary course."...

The Department of Justice declined to comment on how many petitions for clemency have received favorable recommendations within the department or have been referred to the White House. It is impossible to say for sure, then, how much the delay in granting pardons is due to bureaucracy or stalling by political actors.

But sticking with the opaque status quo is itself a political decision — the president could unilaterally discard it — and it's a disappointment, if not a surprise, to people like Osler. He's not expecting big things.  "I haven't heard anything from the administration that gives me hope," he said.

Some of many prior related posts:

December 9, 2021 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (8)

More research to support notion that spike in gun sales contributed to spike in gun crimes

As detailed in a number of prior posts (some linked below), because guns crimes but not many other crimes have spiked since the start of the pandemic, I have figured the pandemic spike in gun sales likely had some role in our modern crime trends.  This new piece from The Trace, headlined "New Data Suggests a Connection Between Pandemic Gun Sales and Increased Violence," seems to provide further support for my (simplistic?) thinking here.  Here are excerpts:

In March 2020, as the first COVID-19 outbreaks rippled across the U.S., Americans flocked to gun stores.  In total, civilians purchased some 19 million firearms over the next nine months — shattering every annual sales record.  At the same time, shootings across the country soared, with dozens of cities setting grim records for homicides.

As the pandemic progressed, and gun sales continued to climb alongside shootings, researchers have puzzled over the connection between these two intersecting trends.  Was the surge in violent crime related to the uptick in guns sold last year? We may not get a definitive answer to that question for years, but fresh data from the Bureau of Alcohol, Tobacco, Firearms and Explosives provides some of the first evidence that a relationship exists.

ATF data shows that in 2020, police recovered almost twice as many guns with a short “time-to-crime” — in this case, guns recovered within a year of their purchase — than in 2019.  Law enforcement officials generally view a short time-to-crime as an indicator that a firearm was purchased with criminal intent, since a gun with a narrow window between sale and recovery is less likely to have changed hands.  Altogether, more than 87,000 such guns were recovered in 2020, almost double the previous high.  And almost 68,000 guns were recovered in 2020 with a time-to-crime of less than seven months (meaning they were less likely to have been purchased the previous year).

Put more plainly, thousands of guns purchased in 2020 were almost immediately used in crimes — some as soon as a day after their sale. That was the case of the 9mm Beretta pistol purchased by an Arlington man from Uncle Dan’s Pawn Shop and Jewelry in Dallas, according to police records.  Officers seized the gun from its owner during a drug arrest 24 hours later. In another example, a Laredo, Texas, man assaulted his mother, then opened fire on police with his Smith & Wesson M&P 15-22 rifle in July 2020.  The gun had been purchased at a Cabela’s in Ammon, Idaho, just three months earlier.

“Overall, I think we can say that the gun sale surge may have contributed to a surge in crime,” said Julia Schleimer, a researcher in the Violence Prevention Research Program at the University of California, Davis, after reviewing the ATF’s data....

Researchers interviewed for this story cautioned that the number of guns recovered and traced by law enforcement does not always indicate the amount of gun crime in a given year.  In other words, factors driving increases in the amount of short-time-crime guns in the ATF’s data may be separate from the factors contributing to gun violence.

Still, no sales bump compares to 2020, when gun buying soared to unprecedented heights, Schleimer said, substantially widening the pool of recently purchased guns that could potentially turn up at crime scenes....

Jim Bueermann, a former California police chief who serves as a senior fellow at the George Mason University Center for Evidence-Based Crime Policy, said that while the new data may not provide conclusive evidence of a causal relationship between gun sales and gun crime, it does signal the importance of additional exploration.  “Data like this asks more questions than it answers, but this is a clarion call for criminologists to conduct research in this space.”

A few of many prior related posts:

December 9, 2021 in Gun policy and sentencing, Impact of the coronavirus on criminal justice, National and State Crime Data | Permalink | Comments (6)

December 8, 2021

"The Effects of College in Prison and Policy Implications"

The title of this post is the title of this notable new piece authored by Matthew G.T. Denney and Robert Tynes newly published in the journal Justice Quarterly. Here is its abstract:

Despite the policy relevance of college-in-prison, the existing research on these programs has important flaws, failing to address selection and self-selection bias.  We address an important policy question: what are the effects of college-in-prison program?  To do this, we provide the largest study published to-date of a single college-in-prison program. 

We analyze the effects of the Bard Prison Initiative (BPI) in New York, a liberal arts program that has offered college courses to incarcerated students since 2001.  By leveraging the BPI admissions process, we employ a design-based approach to infer the causal effect of participation in BPI.  We find a large and significant reduction in recidivism rates.  This reduction is consistent across racial groupings.  Moreover, people with higher levels of participation recidivate at even lower rates.  In light of these findings, we provide policy recommendations that support college-in-prison programs.

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

US Sentencing Commission releases FY 2021 fourth quarter sentencing data showing growth in cases and in average sentence severity

US Sentencing Commission yesterday published here its latest quarterly data report which is described as a "4th Quarter Release, Preliminary Fiscal Year 2021 Data Through September 30, 2021." These new data provide another official accounting of how COVID realities appear to be continuing to reduce the usual total number of federal sentences imposed, though in this latest quarter we are seeing a return almost to pre-pandemic norms for most offense categories other than immigration cases.

Specifically, as reflected in Figure 2, in pre-pandemic years, quarterly cases sentenced generally averaged around 17,000 to 19,000. But in the three quarters closing out 2020, amid the worst early periods of the pandemic, there were only between about 12,000 and 13,000 cases being sentenced each quarter.  In the most recent quarter here reported, running from July 1 to September 30, 2021, it appears that more than 15,000 cases were sentenced in federal court.  Figure 2 also shows that, relative to pre-pandemic trends, the only major caseload decline now is in the total number of immigration cases sentenced while the other big federal case categories — Drug Trafficking, Firearms and Economic Offenses — now have the total number of cases sentenced in recent quarters not off that much from recent historical norms.

Consistent with what I have noted in prior post about pandemic era USSC data, these data continue to show a notable jump in the percentage of below-guideline variances granted in the last five quarters (as detailed in Figures 3 and 4).  But I suspect these data may reflect the altered mix of cases now that the number of immigration cases being sentenced has declined dramatically rather than significantly different behaviors by sentencing judges.  And, notably, Figure 5 in this data run reveals that the "Average Guideline Minimum" as well as the "Average Sentence" were higher in this last quarter than in recent history, with a particularly notable uptick in these measures of average sentence severity over the last two quarters.

A few prior recent related post:

December 8, 2021 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Impact of the coronavirus on criminal justice | Permalink | Comments (0)

The Sentencing Project releases "Successes in Criminal Legal Reforms, 2021"

Nicole Porter at The Sentencing Project has authored a short report reviewing state-level legislative criminal justice reforms under the title "Successes in Criminal Legal Reforms, 2021." This webpage has a link to the full four-page document, and it sets up the report's coverage this way:

The United States continues to lead the world in incarceration given that over 6.3 million persons are under correctional control.  More than 2.1 million are in prison or jail, and 4.4 million are under community surveillance on probation or parole.  At least 19 million persons are living with a felony conviction while an estimated 70-100 million have a criminal record. The persistence of extremely punitive sentencing laws and policies, not increases in crime rates, sustain the nation’s high rate of incarceration.

Ending mass incarceration requires a transformative change to sentencing policies and practices aligned with the scaling back of collateral consequences of conviction, and challenging racial disparities in the criminal justice system.  This briefing paper highlights key reforms undertaken in 2021 prioritized by The Sentencing Project.

December 8, 2021 in State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

December 7, 2021

Hard to keep up with all the great new Inquest pieces

Regular readers recall lots of prior blogging about Inquest, "a decarceral brainstorm," which continues to publish lots of must-read essays and other great materials.  I am behind in reading and blogging about all new great new reads from the site, so I will have to be content to just flag here just a few of the many newer pieces worth checking out:

From Christopher Blackwell & Jessica Sandoval, "Seeing the Light: We can't end mass incarceration without first ending solitary confinement once and for all."

From Jessica T. Simes, "Vulnerable Places: Entire communities are singularly exposed to punishment. Understanding how is key to combating mass incarceration."

From Tewkunzi Green, "Surviving Everywhere: Clemency gave me a chance to tell my truth — a truth the criminal legal system made invisible."

From Rachael Bedard & Zachary Rosner, "Treating Unfreedom: Practicing correctional medicine is fundamentally an exercise in harm reduction. And it’s no match for liberty itself."

December 7, 2021 in Recommended reading | Permalink | Comments (0)

"'No idea whether he's Black, White, or purple': Colorblindness and cultural scripting in prosecution"

The title of this post is the title of this notable new research authored by R. R. Dunlea and just published in the journal Criminology.  Here is its abstract:

Prosecutors maintain immense power over criminal case processing.  Yet, they have not historically been a major target for reforms designed to foster equality and reduce racial disparity in criminal justice outcomes.  Using in-depth interviews with 47 line prosecutors, this study explores how prosecutors think about race in criminal justice, and what they believe their role should be in addressing racial disparities. 
Results show that prosecutors broadly embrace a colorblind approach to prosecution and argue that race should be disregarded in case processing.  Their support for colorblind prosecution is reinforced by race-neutral cultural scripts that can be linked to the social and operational realities of prosecutors’ work environment.  These findings suggest that efforts to improve fairness in case processing will be more effective if they are accompanied by widespread prosecutorial culture change.  Such efforts may also benefit from the consideration of structural features of the prosecutor's office that currently lead line agents to embrace colorblindness and reject a larger role in alleviating racial disparities.

December 7, 2021 in Race, Class, and Gender, Who Sentences | Permalink | Comments (3)

December 6, 2021

Noting differing perceptions of whether prison time is too long or too short or just right in the US

FT_21.11.17_TimeInPrison_1Over at the Pew Research Center, John Gramlich has this interesting new piece under the headline "U.S. public divided over whether people convicted of crimes spend too much or too little time in prison."  The graphic reprinted here captures the heart of the story, and here is some of the text (with links from the original):

Americans are closely divided over whether people convicted of crimes spend too much, too little or about the right amount of time in prison, with especially notable differences in views by party affiliation, ideology, race and ethnicity.

Overall, 28% of U.S. adults say people convicted of crimes spend too much time in prison, while 32% say they spend too little time and 37% say they spend about the right amount of time, according to a Pew Research Center survey of 10,221 adults conducted in July 2021.  The question was asked as part of a broader survey examining differences in Americans’ political attitudes and values across a range of topics.  The survey asked about prison time in a general way and did not address penalties for specific crime types.

Democrats and Democratic-leaning independents are much more likely to say people convicted of crimes spend too much time in prison than to say they spend too little time behind bars (41% vs. 21%).  The reverse is true among Republicans and Republican-leaning independents: 44% of Republicans say people convicted of crimes spend too little time in prison, while 14% say they spend too much time behind bars.  Around a third of Democrats and Democratic leaners (35%) and a slightly higher share of Republicans and GOP leaners (39%) say people convicted of crimes spend about the right amount of time in prison.

Views differ by ideology within each partisan group.  Liberal Democrats are more likely than conservative and moderate Democrats (54% vs. 30%) to say convicted people spend too much time in prison.  Conservative Republicans are more likely than moderate and liberal Republicans (49% vs. 35%) to say people convicted of crimes spend too little time in prison.

Democrats who describe their political views as very liberal and Republicans who describe their views as very conservative stand out even more.  Very liberal Democrats are much more likely than Democrats who describe their views as simply liberal (70% vs. 47%) to say convicted people spend too much time in prison.  And very conservative Republicans are more likely than Republicans who describe their views as simply conservative (56% vs. 47%) to say people convicted of crimes spend too little time in prison.

Attitudes about many aspects of the U.S. criminal justice system differ by race and ethnicity, as previous Pew Research Center surveys have shown, and a similar pattern appears in views of time spent in prison.  Black adults (40%) are more likely than White (26%), Asian (26%) and Hispanic adults (25%) to say people convicted of crimes spend too much time in prison.  Conversely, White adults (36%) are more likely than Hispanic (28%) and Black adults (17%) to believe that convicted people spend too little time behind bars.  Around a third of Asian adults (34%) also say convicted people do not spend enough time in prison, but their views are not statistically different from those of White and Hispanic adults.

Among Democrats, similar shares of Black and White adults say prisoners spend too much time behind bars, even as Black and White Democrats express different views on some other survey questions related to criminal justice.  Black Democrats, for example, are modestly more likely than White Democrats to favor increased funding for police in their area, according to a September Pew Research Center survey.

December 6, 2021 in Elections and sentencing issues in political debates, Race, Class, and Gender, Who Sentences | Permalink | Comments (7)

SCOTUS to wrap up 2021 oral arguments with two more criminal cases

With big cases concerning abortion (Hobbs) and gun rights (Bruen), the start of the SCOTUS Term has had plenty of big arguments involving big issues that probably could be viewed through a criminal justice lens.  And, with arguments on the Boston Marathon bomber's sentence (Tsarnaev) and the right to a pastor in the execution chamber (Ramirez), the death penalty has also been on the SCOTUS docket.  And, of course, what would a SCOTUS Term be without the requisite ACCA case (Wooden) and a case dealing with habeas procedure (Davenport).

But my SCOTUS criminal justice cup cannot run over, and thus it is worth nothing that the Justice have two more criminal cases on the docket for its last two days of scheduled oral argument for 2021.  With thanks to SCOTUSblog, here are the basics:

US v. TaylorNo. 20-1459, to be argued on Tuesday, December 7, 2021 

Issue(s): Whether 18 U.S.C. § 924(c)(3)(A)’s definition of “crime of violence” excludes attempted Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a).
 
 
Shinn v. RamirezNo. 20-1009, to be argued on Wednesday, December 8, 2021:
 
Issue(s): Whether application of the equitable rule the Supreme Court announced in Martinez v. Ryan renders the Antiterrorism and Effective Death Penalty Act, which precludes a federal court from considering evidence outside the state-court record when reviewing the merits of a claim for habeas relief if a prisoner or his attorney has failed to diligently develop the claim’s factual basis in state court, inapplicable to a federal court’s merits review of a claim for habeas relief.

December 6, 2021 in Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Working through challenges facing CARES home confinement cohort

Charles Burnham and Jonathan Knowles have this new Law360 piece, headlined "Addressing Prison Risk After CARES Act Home Confinement," that talks through the possibilities (and challenges) for individuals placed on home confinement pursuant the CARES Act facing a potential future return to prison. Here are excerpts:

First, people with criminal convictions should remember that they retain political influence, even if many of them are unable to vote. Congress could resolve the issue by enacting law that clarifies the BOP's authority to maintain home confinement. Unfortunately, such legislation does not seem likely.

Many representatives and senators have requested that the Biden administration change its attitude, however, and continued pressure might push the administration to adopt a new approach. Presumably, most people with convictions would like to go further. As always, they can request a pardon from the president, but this process remains unlikely to succeed, except, perhaps, for those specifically invited to apply.

So, what other options are available?

Section 12003(b)(2) of the CARES Act is ambiguous as to what happens when the national emergency ends. It could be read as restricting the authority to place new people on home confinement, while preserving home confinement that has been granted.

There may be other grounds to challenge revocation of home confinement.  Whatever the strength of such challenges, there are numerous obstacles before a court will even hear them.  One issue is timing. In May, a woman named Dianthe Martinez-Brooks attempted to preemptively challenge the OLC memo that threatened to revoke her home confinement. Rather than answering her complaint, the BOP moved to dismiss, arguing that her case was not ripe because the BOP had not recalled her to prison.

At the time of writing, the court has yet to rule on the motion. Yet, if individuals on home confinement are not able to challenge their recall before it occurs, they may have to surrender to prison for many months while their cases are pending. People attempting such preemptive challenges should therefore be prepared to argue that their claims are ripe.

Another issue is the correct procedural vehicle for the challenge. Martinez-Brooks moved under the Administrative Procedure Act. In its motion to dismiss, the BOP asserted that such challenges cannot be brought under the APA because Congress has prohibited people who are incarcerated from using the APA to challenge the BOP's placement decisions.

At least one federal court has ruled that Title 18 of the U.S. Code, Section 3625, the statute cited by the government, prevented individuals who are incarcerated from challenging a denial of home confinement under the CARES Act. The District of New Jersey held as such on Sept. 1 in Goodchild v. Ortiz.

The BOP also asserted that the OLC memo at issue is not final agency action.  Finally, the BOP argues that relief under the APA is unavailable because Martinez-Brooks has another remedy — namely, the motion for compassionate release that she has previously filed.

The obvious alternative would seem to be habeas corpus. Indeed, from around 2005 to 2008, incarcerated individuals in some circuits successfully used habeas corpus to challenge the BOP's categorical denial of community confinement.  Federal courts have reached different conclusions, however, about whether they have jurisdiction to consider requests for home confinement under habeas corpus.

A preemptive challenge under habeas would also raise questions about where to file suit, and against whom.  Attorneys will need to review the law of their circuits carefully to ascertain whether suits can be brought under habeas or Title 42 of the U.S. Code, Section 1983, as well as whether individuals in prison are required to exhaust administrative remedies.

Yet another obstacle is whether the relief sought is within the court's power. In considering the claims of people who are incarcerated, courts have so far held that home confinement is solely within the discretion of the BOP.  Even so, some courts have left open the possibility that they could review a categorical denial of home confinement based on a misreading of a statute.

Finally, people who are incarcerated should be ready to seek relief under other avenues. Some may be within the one-year deadline to move to vacate, set aside or correct a sentence.  In many cases, however, the only option will be to seek compassionate release.

Courts have split as to grounds for compassionate release....

If possible, affected individuals should prepare motions now and submit them to the BOP as soon as it formally rescinds home confinement.  They may even be able to move the court earlier, asking the court to hold the issue in abeyance, although such a procedure would be risky.

Some of many prior related posts:

December 6, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

When exactly in "early 2022" might we expect Prez Biden's nominees to the US Sentencing Commission?

The question in the title of this post is prompted by this new Law360 article, which discusses the quorum-less status of the US Sentencing Commission and includes a prediction from the last remaining Commissioner as to when new USSC nominations may be forthcoming. The piece is headlined "Biden's Inaction Keeps Justice Reform Group Sidelined," and here are a few excerpts:

In November, Reps. Kelly Armstrong, R-N.D., and Jamie Raskin, D-Md., sent a letter to Biden urging him to fill vacancies on the Sentencing Commission, saying that the commission's inability to issue sentencing guidelines for the First Step Act could result in "uneven application of the law."

"It is imperative that the vacancies are expeditiously filled so the commission can continue its work to improve the federal criminal justice system," the pair said in the Nov. 22 letter.

Armstrong told Law360 that he sent the letter to Biden because having the commission's input would be beneficial as the Senate considers advancing the EQUAL Act, or Eliminating a Quantifiably Unjust Application of the Law Act — a proposed law that would completely eliminate sentencing disparities between crack and powdered cocaine offenses.  The bill has passed in the House.

"Nobody's ever lost an election being tough on crime, so if you want reasonable smart policy changes, you need experts to give you the advice, because then, you can utilize that, and you don't take as much political heat," Armstrong said about the Sentencing Commission.

Congress is currently considering several sentencing reform bills in addition to the EQUAL Act.  Though lawmakers are running out of time to pass the proposed laws with its winter recess scheduled to start Dec. 11.  Four of the proposed sentencing reform bills — the Smarter Sentencing Act, the Preventing Unfair Sentencing Act, the RAISE Act and the Ending the Fentanyl Crisis Act — specifically call on the Sentencing Commission to review and revise its sentencing guidelines, if necessary to comply with the legislation.  However, the commission wouldn't be able to comply with these directives as long as it lacks a quorum.

A White House spokesperson did not respond to a request for comment about why Biden hasn't nominated commissioners for the Sentencing Commission yet or when he will announce his nominees.

Breyer, the sole remaining commissioner, told Law360 that he has been in contact with the White House and believes it is currently vetting candidates. He said that he is hoping for a slate of nominees in early 2022.  The White House is "certainly overworked, but I still think that there is some priority in getting this taken care of," Breyer said.

If there truly was "some priority" in staffing the US Sentencing Commission, I think we would have and could have already seen some USSC nominees now 11 months into the Biden Administration.  But I suppose this setting justifies the old saying "better late than never." 

I sincerely hope Judge Breyer's prediction of "nominees in early 2022" means sometime in January or February.  The process of Senate confirmation likely takes a few months even under the best of circumstances, and the prospect of confirmations would seem to diminish as we get closer to the midterm elections.  So even uncontroversial nominations made in January might not result in a full and functioning Commission until Spring 2022.  I fear later and/or controversial nominees could mean we do not get a full and functioning Commission at all in 2022.     

A few of many prior recent related posts:

December 6, 2021 in Criminal justice in the Biden Administration, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (15)

December 5, 2021

Recidiviz forecasts federal marijuana legalization would reduce "federal prison population by 2,807 over 5 years"

Recidiviz has this notable new data analysis titled "Ending Federal Prison Sentences for Marijuana Offenses."  Here is part of its text:

Ending federal marijuana prohibition specifically, ceasing federal prison commitments for marijuana-related offenses could reduce incarceration costs by $571.8M and the federal prison population by 2,807 over 5 years. The policy is also projected to divert roughly 1,120 people from being sent to federal prison each year....

In spite of these shifts in public opinion and state law, marijuana is still prohibited at the federal level, and more than 3,000 individuals are currently serving marijuana-related sentences in federal prison.  Significant racial disparities exist in federal marijuana sentencing; an estimated 60% of people serving time in federal prison for marijuana offenses are of Hispanic descent, and over the past five years, 67% of individuals receiving prison sentences for marijuana offenses were Hispanic.


While the rate of prison sentencing for federal marijuana offenses has declined substantially in the past five years, individuals incarcerated for federal marijuana offenses still face an average sentence of approximately 38 months.  Furthermore, nearly 1 in 4 individuals incarcerated under federal marijuana trafficking offenses will face
reincarceration.

December 5, 2021 in Drug Offense Sentencing, Pot Prohibition Issues, Prisons and prisoners | Permalink | Comments (0)

"Crime and Punishment. Crime Rates and Prison Population in Europe"

The title of this post is the title of this new paper available via SSRN authored by Beata Gruszczyńska and Marek Gruszczyński. Here is its abstract:

We present the attempt of finding association between crime level and prison population across European countries.  We propose observation that Central and Eastern European countries distinctly differ from the rest of Europe.  Building on this we offer justification that is methodologically based on correlations and regressions of country incarceration rates on crime rates, with the reference to governance indicators.  We use data on crime and prisoner rates by offence from Eurostat and SPACE.  Our cross-sectional analysis is confined to year 2018.

The empirical part of the paper is preceded by specifying the challenges of comparing crime between countries in Europe.  Next, we present the review of research concentrated on relationships between incarceration and crime, with the emphasis on deterrence effect and the prison paradox.  This stream of research is typically dedicated to single countries or smaller areas, with the use of microdata.  International comparisons are rare and are usually based on time series and trend analyses.

Quantitative approach applied here is established on recognizing two clusters of countries: Central and Eastern European (CEE) cluster, and Western European (WE) cluster. We show that the observation of higher prisoner rates and lower crime rates for CEE countries is confirmed in a quantitative way. The analysis encompasses four types of offences: assault, rape, robbery and theft.  Final part of the paper presents the attempt to include World Governance Indicators into the analysis of association between incarceration and crime rates.

All results confirm that crime rates in WE countries are distinctly higher than in CEE countries while incarceration rates in WE are significantly lower than in CEE countries. We think it is because of the broader extent of crimes registered and better accuracy of police statistics.  Prison population is largely determined by the criminal and penal policy in each country. Those policies differ substantially between CEE and WE countries, e.g. in terms of frequency of sentencing to the prison and the length of imprisonment.  These result in higher incarceration rates in CEE countries, despite lower crime rates – as compared to WE countries.

December 5, 2021 in Prisons and prisoners, Scope of Imprisonment, Sentencing around the world | Permalink | Comments (0)

Three deep dives into ugly realities of Alabama's justice system

One often hears talk of Texas justice being unique, but there are really distinctive stories to tell about criminal justice realities in every state.  To that end, consider three new lengthy recent pieces about crime and punishment in Alabama.  I recommend all of these deep dives:

From AL.com, "Alabama parole rate far short of board’s own recommended guidelines"

From Politico, "‘A humanitarian crisis’: Why Alabama could lose control of its dangerous prisons: Alabama sends so many people to prison that the state can no longer safely house its inmates, consequences of a tough-on-crime mentality among politicians and the public that keeps aggressive sentencing laws on the books."

From the New York Times, "He Never Touched the Murder Weapon. Alabama Sentenced Him to Die.: Nathaniel Woods was unarmed when three Birmingham police officers were fatally shot by someone else in 2004.  But Woods, a Black man, was convicted of capital murder for his role in the deaths of the three white officers."

December 5, 2021 in Death Penalty Reforms, Prisons and prisoners | Permalink | Comments (7)