« January 24, 2021 - January 30, 2021 | Main | February 7, 2021 - February 13, 2021 »

February 6, 2021

New AP report concludes "Federal executions likely a COVID superspreader"

This new Associated Press article details the conclusions of its investigation concerning the spread of COVID-19 in and around the federal facilities responsible for executions at the tail end of the Trump Administration.  Here is how the lengthy piece gets started:

As the Trump administration was nearing the end of an unprecedented string of executions, 70% of death row inmates were sick with COVID-19.  Guards were ill.  Traveling prisons staff on the execution team had the virus.  So did media witnesses, who may have unknowingly infected others when they returned home because they were never told about the spreading cases.

Records obtained by The Associated Press show employees at the Indiana prison complex where the 13 executions were carried out over six months had contact with inmates and other people infected with the coronavirus, but were able to refuse testing and declined to participate in contact tracing efforts and were still permitted to return to their work assignments.  Other staff members, including those brought in to help with executions, also spread tips to their colleagues about how they could avoid quarantines and skirt public health guidance from the federal government and Indiana health officials.

The executions at the end of Donald Trump’s presidency, completed in a short window over a few weeks, likely acted as a superspreader event, according to the records reviewed by AP.  It was something health experts warned could happen when the Justice Department insisted on resuming executions during a pandemic.

It’s impossible to know precisely who introduced the infections and how they started to spread, in part because prisons officials didn’t consistently do contact tracing and haven’t been fully transparent about the number of cases.  But medical experts say it’s likely the executioners and support staff, many of whom traveled from prisons in other states with their own virus outbreaks, triggered or contributed both in the Terre Haute penitentiary and beyond the prison walls.

Of the 47 people on death row, 33 tested positive between Dec. 16 and Dec. 20, becoming infected soon after the executions of Alfred Bourgeois on Dec. 11 and Brandon Bernard on Dec. 10, according to Colorado-based attorney Madeline Cohen, who compiled the names of those who tested positive by reaching out to other federal death row lawyers. Other lawyers, as well as activists in contact with death row inmates, also told AP they were told a large numbers of death row inmates tested positive in mid-December.

In addition, at least a dozen other people, including execution team members, media witnesses and a spiritual adviser, tested positive within the incubation period of the virus, meeting the criteria of a superspreader event, in which one or more individuals trigger an outbreak that spreads to many others outside their circle of acquaintances.  The tally could be far higher, but without contact tracing it’s impossible to be sure.

February 6, 2021 in Death Penalty Reforms, Impact of the coronavirus on criminal justice | Permalink | Comments (0)

Notable new research on criminal justice impact of a safe consumption site

Policies and attitudes toward so-called "safe consumption sites" for drugs may serve as one of many interesting tests for whether the Biden Administration is prepared to take a whole new approach to the drug war.  If inclined to be more supportive of these sites, the Biden folks might want to make much of this notable new research recently published in the journal Drug and Alcohol Dependence.  Produced by multiple authors under the title "Impact of an unsanctioned safe consumption site on criminal activity, 2010–2019," here is the article's abstract:

Background

Health and social impacts of safe consumption sites (SCS) are well described in multiple countries.  One argument used by those opposed to SCS in the US is that findings from other countries are not relevant to the US context.  We examined whether an unsanctioned SCS operating in the US affected local crime rates.

Methods

Controlled interrupted time series (ITS) analysis of police incident reports for five years before and five years after SCS opening, comparing one intervention and two control areas in one city.

Results

Narcotic/drug incidents declined across the pre- and post-intervention periods in the intervention area and remained constant in both control areas, preventing an ITS analysis but suggesting no negative impact.  On average, incident reports relating to assault, burglary, larceny theft, and robbery in the post-intervention period steadily decreased at a similar rate within both the Intervention area and Control area 1.  However the change in rate of decline post-intervention was statistically significantly greater in the Intervention area compared to Control area 1 (difference in slope -0.007 SDs, 95 % CI: −0.013, −0.002; p = 0.01).  The Intervention area had a statistically significant decline in crime over the post-intervention period compared to Control area 2 (difference in slope −0.023 SDs, 95 % CI: −0.03, −0.01; p < 0.001).

Conclusions

Documented criminal activity decreased rather than increased in the area around an unsanctioned SCS located in the US in the five years following SCS opening.

February 6, 2021 in Drug Offense Sentencing, National and State Crime Data | Permalink | Comments (0)

February 5, 2021

Virginia, the state "that since Colonial times has executed more people than any other," is on verge of abolishing the death penalty

As reported in this local article, headlined "House of Delegates backs abolishing death penalty, signaling end of capital punishment," the Commonwealth of Virginia is on the cusp of historic criminal justice reform.  Here are the details: 

In a landmark vote Friday, the Virginia House of Delegates passed a bill to abolish the death penalty in the state that since Colonial times has executed more people than any other.  With the Senate approving similar legislation Wednesday and Gov. Ralph Northam backing both measures, the action all but ends the death penalty in Virginia, which will now join 22 other states without a capital punishment law on the books.

"In the 20th century, few would have thought this was likely to happen at all, much less that Virginia would be the first in the South to eliminate capital punishment," said Larry Sabato, a political analyst at the University of Virginia. "This is a watershed moment. It shows dramatically how different the new Virginia is from the old," he said.

The House passage, 57-41, was largely along party lines, with three Republicans — Dels. Carrie Coyner, R-Chesterfield, Roxann Robinson, R-Chesterfield and Jeff Campbell, R-Smyth — voting with the Democrats who hold the majority in the House.  The votes followed passionate debate in each chamber this week over the government's ultimate sanction.

Since 1608, Virginia has executed almost 1,400 people — 113 of them since the U.S. Supreme Court allowed capital punishment to resume in 1976, the second-highest toll in the U.S. in modern times.

Speaking Thursday on behalf of the bill he sponsored, Del. Mike Mullin, D-Newport News, a prosecutor in Hampton, said, "There are many arguments for why we should abolish the death penalty. These arguments touch on everything from the moral implications of the death penalty, to the racial bias in how it is applied, to its ineffectiveness, to the extraordinary cost."

"But perhaps the strongest argument for abolishing the death penalty is that a justice system without the death penalty allows us the possibility of being wrong," he said. He cited the case of Earl Washington Jr., Virginia's only death row exoneree among 174 across the U.S.  Washington came within days of execution in 1985 for a rape and murder that DNA later proved was committed by another man. "How many people are we willing to sacrifice to vengeance," Mullin asked.

Shortly before the House vote Friday, Del. Jay Jones, D-Norfolk, who is vying for the Democratic nod to run for attorney general, urged passage, saying the United States is the only Western country that still has the death penalty. "The death penalty is the direct descendant of lynching.  It is state-sponsored racism and we have an opportunity here to end this today," he said....

Supporters of the death penalty did not have the backing of the Virginia Association of Commonwealth's Attorneys this year as the organization decided to let each member argue their own cases.  A dozen top prosecutors in the state favored abolition.

Michael Stone, executive director of Virginians For Alternatives to the Death Penalty, said, Friday's vote in the House, "is a repudiation of the long and violent policy of 1,390 executions carried out by the Commonwealth since 1608.  We look forward to Governor Northam signing this bill into law." Northam, following the Senate passage Wednesday, said, "The practice is fundamentally inequitable.  It is inhumane.  It is ineffective. And we know that in some cases, people on death row have been found innocent."...

There have been no now new death sentences imposed in the state since 2011 and no executions since 2017.  Under the legislation approved this week, the two men remaining on Virginia's death row — both convicted in Norfolk — will have their death sentences changed to life without parole....

If made law, the legislation would mean that all the current 15 types of capital murder — such as murder in the commission of a rape or robbery or the slaying of a law enforcement officer — would become aggravated murder punishable by life in prison without parole. However, as many critics point out, when sentencing, a judge — except in the case of the murder of a police officer — could suspend part or all of such a sentence.  That was a sticking point for some Republicans, particularly Sen. Bill Stanley, R-Franklin, who opposes the death penalty but said he could not vote for the legislation if it meant such a killer might someday be free.

WOW!

February 5, 2021 in Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

"Narrating Context and Rehabilitating Rehabilitation: Federal Sentencing Work in Yale Law School’s Challenging Mass Incarceration Clinic"

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

The Challenging Mass Incarceration Clinic (CMIC) at Yale Law School has been representing clients in federal sentencing and state postconviction cases since 2016.  Drawing on a blueprint I set forth in a 2013 article, the clinic teaches a model of noncapital sentencing practice that builds on the best capital defense sentencing practices and seeks to transform judges’ and prosecutors’ assumptions about criminal sentencing.

In this article, I set forth CMIC’s theoretical underpinnings and detail our interdisciplinary, trauma-informed approach to sentencing advocacy and clinical practice.  I then describe CMIC’s case outcomes, including variances which have reduced each of our clients’ prison time an average of five years below the United States Sentencing Guidelines range and more than 18 months below prosecutors’ recommended sentences.  CMIC’s work has also produced innovations to traditional client-centered, holistic lawyering; enhanced approaches to working with experts; and yielded insights into the incorporation of defense-based victim outreach in appropriate cases.

Our experiences in CMIC raise several areas for future research, including whether the model will produce the kind of fundamental sentencing reform I predicted in my earlier work, and questions about fairness, risks, data, and scalability.  I am publishing this article with the hope and intention that other law school clinics will borrow from and improve on CMIC’s model.

February 5, 2021 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

February 4, 2021

"After the Sentence, More Consequences: A National Report of Barriers to Work"

The title of this post is the title of this notable new report authored by Chidi Umez and Joshua Gaines of the Council for State Government Justice Center.  Here is its introduction:

The negative effects of a conviction rarely end when a person has completed their criminal sentence.  A complex web of local, state, and federal statutes and regulations—known as collateral consequences of conviction — can make it all but impossible for some people with criminal records to truly rebuild their lives.  While these consequences can affect everything from housing to public benefit eligibility, no area is more impacted than the ability to find and retain meaningful employment.  Some of these barriers to work may be responsive to legitimate public safety concerns, but many others pose unnecessary barriers to employment opportunities that are critical in reducing recidivism and supporting the long-term success of people in the justice system.

In this report, The Council of State Governments (CSG) Justice Center presents a national overview of the scope, features, and operation of the employment-related collateral consequences imposed by state and federal law.  The data were gathered from the National Inventory of Collateral Consequences of Conviction (NICCC), a searchable online database that catalogs these provisions across the country.  This analysis also provides a blueprint for policymakers seeking to mitigate the impact of these increasingly significant barriers to work.

February 4, 2021 in Collateral consequences, Recommended reading | Permalink | Comments (0)

Eighth Circuit panel affirms (within-guideline) sentence of 2.5 years for illegal possession of a single bullet

Decade of study can make one nearly numb to the variety of remarkable stories involving our criminal justice systems ordering people to live long periods in cages for what seems like relatively minor crimnal activity.  But I was still struck by an Eighth Circuit ruling this week in US v. Brown, No. 20-1377 (8th Cir. Feb 2, 2021) (available here), highlighting how minor convicted conduct can lead to major federal prison time.  Here are the basics fron a unanimous per curiam unpublished opinion (with cites removed):

The district court1 sentenced Deaviea David Brown to 30 months of imprisonment after Brown pled guilty to being a felon in possession of ammunition—a single bullet. See 18 U.S.C. §§ 922(g)(1), 924(a)(2). On appeal, Brown contends that sentence is substantively unreasonable and violates the Eighth Amendment. We affirm....

Because Brown’s sentence is at the bottom of the Guidelines range, we presume the sentence is reasonable. Brown did not rebut that presumption.  We also note that during the sentencing hearing, the district court specifically addressed the § 3553(a) factors.  We see no basis to conclude either that the district court improperly weighed the § 3553(a) factors or that the sentence it imposed was substantively unreasonable....

[T]he proportionality principle in Eighth Amendment law is quite limited. Under this standard, the proportionality argument presented simply lacks sufficient basis for this court to conclude that Brown’s sentence — which was at the bottom of the recommended Guidelines range — is one of those “exceedingly rare” cases that raises the gross-disproportionality inference.  While 30 months of imprisonment for possession of a single bullet may seem, on its surface, disproportionate, the penalty relates to the prohibition on convicted felons possessing ammunition of any amount. The sentence does not violate the Eighth Amendment.

I have not yet found any more information about the district court sentencing online, but I would guess there is a significant backstory as to why Mr. Brown was federal prosecuted and sentenced to 2.5 years in federal prison for possession of a single bullet. (There was a significant backstory when the Sixth Circuit affirmed a 15-year ACCA sentence for possession of seven shotgun shells some years ago.)  But I am always troubled when a serious sentence is based on some unclear backstory rather than on the seriousness of the actual offense conduct that produced the conviction.

Notably and annoyingly, the panel keeps stressing that the 30-month sentence here was at the bottom of the applicable guideline range.  For me, that fact serves to condemn the federal sentencing guidelines, not justify this extreme sentence.  It is also an important reminder that, even 15+ years after Booker made the guidelines advisory, they still have an adverse impact on justice and still need a thorough rewrite.

I am especially troubled by the facile rejection of the Eighth Amendment claim by the panel in these terms: "While 30 months of imprisonment for possession of a single bullet may seem, on its surface, disproportionate, the penalty relates to the prohibition on convicted felons possessing ammunition of any amount."  This strike me as tantamount to a statement that there could never be a constitutionally disproportionate sentence for shoplifting a candybar because a severe penalty is critical to keep people from stealing any amount of goods.  Put simply, 30 months of imprisonment for possession of a single bullet does seem disproportionate, and the Eighth Circuit panel should have at least conducted a full Eighth Amendment proportionality analysis (which would show, I think, that this this behavior is not even criminal in many states and not a felony in most).

February 4, 2021 in Gun policy and sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (7)

February 3, 2021

Federal judge in Oregon orders state to vaccinate inmates along with correctional workers

As reported in this local press piece, "A federal judge ordered Oregon officials late Tuesday to immediate offer state prison inmates COVID-19 vaccines."  Here is more about this notable ruling:

U.S. Magistrate Judge Stacie Beckerman granted a temporary restraining order as part of a larger case by a group of prison inmates. They’ve criticized the state’s response to the pandemic inside prisons and argue it’s violated the U.S. Constitution. Beckerman’s ruling applies to more than 12,000 inmates who live in one of the state’s 14 prisons. “Defendants shall offer all [Adults in Custody] housed in [Oregon Department of Corrections] facilities, who have not been offered a COVID-19 vaccine, a COVID-19 vaccine,” she wrote....

Gov. Kate Brown is also named in the lawsuit. Brown’s communications director, Charles Boyle, confirmed Wednesday that the state won’t appeal the decision. “The court’s decision is clear,” Boyle said in a written statement. “We will move ahead with a weekly approach that will integrate adults in custody into our Phase 1a distribution plans.”...

Beckerman’s order comes as the Oregon Department of Corrections has struggled to combat the COVID-19 pandemic. More than 3,000 inmates have tested positive for the virus. Of those, 42 people in custody have died; including 20 in January alone. “From the beginning of the COVID-19 pandemic, it was clear that our country’s prisons were uniquely vulnerable to the transmission and spread of the virus,” Beckerman wrote in her 34-page order. “Oregon prisons have not been spared from this reality, as COVID-19′s toll continues to mount behind bars.”

The full 34-page ruling is available at this link, and the press coverage does not fully highlight the important point that Oregon was prioritizing vaccinations for prison workers but not for people confined to prison.  Here are a few paragraphs from the start of the opinion:

Defendants are aware of the higher risk of COVID-19 exposure and infection to individuals living and working in congregate living facilities, and do not dispute that vaccination is an essential component of protecting against COVID-19 exposure.  For these reasons, defendants Governor Brown and Oregon Health Authority (“OHA”) Director Patrick Allen (“Allen”) have prioritized in Phase 1A of Oregon’s COVID-19 Vaccination Plan the vaccination of those living and working in congregate care facilities and those working in correctional settings.  Yet, Governor Brown and Allen have excluded from Phase 1A individuals living in correctional settings.

The Court acknowledges the difficult and unenviable task faced by defendants Allen and Governor Brown: they must determine the order in which Oregon citizens will receive a lifesaving vaccine that is limited in supply during a global pandemic.  The question of which groups of Oregonians should receive priority is best left to the policymakers, and is not the question before this Court.  The narrow question before the Court is whether prioritizing those living and working in congregate care facilities and those working in correctional settings to receive the vaccine, but denying the same priority for those living in correctional settings, demonstrates deliberate indifference to the health and safety of those relying on the state’s care.

Our constitutional rights are not suspended during a crisis.  On the contrary, during difficult times we must remain the most vigilant to protect the constitutional rights of the powerless.  Even when faced with limited resources, the state must fulfill its duty of protecting those in its custody.  See Estelle v. Gamble, 429 U.S. 97, 104 (1976) (“It is but just that the public be required to care for the prisoner, who cannot, by reason of the deprivation of his liberty, care for himself.”) (quotation marks and citation omitted).  For the reasons that follow, the Court finds that the law and facts clearly favor Plaintiffs’ position, and therefore grants Plaintiffs’ request for preliminary injunctive relief.

February 3, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (2)

Disconcerting new data on pandemic parole practices from the Prison Policy Initiative

The Prison Policy Initiative has this new briefing authored by Tiana Herring that provides some notable data on parole realities in 2022. Authored by Tiana Herring, the full title of the piece highlights its themes: "Parole boards approved fewer releases in 2020 than in 2019, despite the raging pandemic: Instead of releasing more people to the safety of their homes, parole boards in many states held fewer hearings and granted fewer approvals during the ongoing, deadly pandemic."  Here is much of the exposition (click through to see data):

Prisons have had 10 months to take measures to reduce their populations and save lives amidst the ongoing pandemic.  Yet our comparison of 13 states’ parole grant rates from 2019 and 2020 reveals that many have failed to utilize parole as a mechanism for releasing more people to the safety of their homes.  In over half of the states we studied —Alabama, Iowa, Michigan, Montana, New York, Oklahoma, Pennsylvania, and South Carolina — between 2019 and 2020, there was either no change or a decrease in parole grant rates (that is, the percentage of parole hearings that resulted in approvals).

Granting parole to more people should be an obvious decarceration tool for correctional systems, during both the pandemic and more ordinary times.  Since parole is a preexisting system, it can be used to reduce prison populations without requiring any new laws, executive orders, or commutations.  And since anyone going before the parole board has already completed their court-ordered minimum sentences, it would make sense for boards to operate with a presumption of release.  But only 34 states even offer discretionary parole, and those that do are generally not set up to help people earn release.  Parole boards often choose to deny the majority of those who appear before them.

We also found that, with the exception of Oklahoma and Iowa, parole boards held fewer hearings in 2020 than in 2019, meaning fewer people had opportunities to be granted parole.  This may be in part due to boards being slow or unwilling to adapt to using technology during the pandemic, and instead postponing hearings for months.  Due to the combined factors of fewer hearings and failures to increase grant rates, only four of the 13 states — Hawaii, Iowa, New Jersey, and South Dakota — actually approved more people for parole in 2020 than in 2019.

February 3, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

New Urban Institute briefs on improving prison-related research

Via a helpful email, I learned about two recent topical briefs produced by the Urban Institute's relatively new Prison Research and Innovation Initiative.  I believe both of these briefs are part of broader research agenda for the an initiative that seeks to "leverage research and evidence to shine a much-needed light on prison conditions and pilot strategies to promote the well-being of people who live and work behind bars."  Here are the titles, authors, links and abstracts:

"Conducting Prison Research with a Racial-Equity Frame" by Cassandra Ramdath

Abstract: The history of slavery in America shapes the experience of incarceration for Black people and must therefore inform strategies to remediate institutional harms.  This brief sets forth guiding values and recommendations for grounding prison research in principles of racial equity.  These values are intended to help researchers more accurately capture and measure racial biases, and design and conduct research that can elevate and disrupt systemic biases.

"Using Research to Improve Health and Health Care in US Correctional Facilities" by Alexandra Kurland

Abstract: To implement policies and practices that foster positive health outcomes and fulfill the US government’s constitutional obligation to provide adequate health care to people who are incarcerated, researchers and practitioners must understand their health needs and the nature and quality of the care they receive.  This brief provides an overview of what is known about health and health care in correctional settings and what must be investigated to improve treatment and health outcomes in correctional settings.

February 3, 2021 in Prisons and prisoners, Race, Class, and Gender | Permalink | Comments (0)

The Sentencing Project releases new report documenting "Racial Disparities in Youth Incarceration Persist"

Josh Rovner has authored this new report for The Sentencing Project titled " "Racial Disparities in Youth Incarceration Persist." Here is its executive summary:

In an era of declining youth incarceration, Black and American Indian youth are still overwhelmingly more likely to be held in custody than their white peers.

In ten years, the United States has cut youth incarceration in half. While the reduction is impressive, youth involvement in the juvenile justice system continues to impact youth of color disproportionately.

In every state, Black youth are more likely to be incarcerated than their white peers, about five times as likely nationwide. American Indian youth are three times as likely to be incarcerated as their white peers. For Latinx youth disparities are smaller but still prevalent; Latinx youth are 42 percent more likely than their white peers to be incarcerated.

Nationally, disparities are essentially unchanged from 10 years’ prior for Black and American Indian youth, but represent a 21 percent decrease in incarceration disparities for Latinx youth. In state rankings, New Jersey warrants special mention due to its number one and number three status for highest Black-white and Latinx-white disparities in youth incarceration, respectively.

These disparities are not only caused by differences in offending but also by harsher enforcement and punishment of youth of color.  White youth are less likely to be arrested than other teenagers, which is partly attributable to unequal policing and partly to differential involvement in crime.

After arrest, youth of color are more likely to be detained pre-adjudication and committed post adjudication.  They are also less likely to be diverted from the system.  These patterns hold across a range of offenses.

Advancement of racial justice priorities with youth decarceration efforts has proven elusive.  More steps must be taken to invest in youth and communities in order to prevent crime and to protect youth from overly punitive system responses to misbehavior.

Recommendations

1. Racial impact statements

States and localities should require the use of racial impact statements to educate policymakers about how changes in sentencing or law enforcement policies and practices might impact racial and ethnic disparities in the justice system.

2. Publish demographic data quarterly

States and counties should publish demographic data quarterly on the number of incarcerated or justice-system involved youth, including race and ethnicity. The federal government should disseminate this information nationwide.

3. Invest in communities

States and localities must invest in communities to strengthen public infrastructures, such as schools and medical and mental health services, with particular focus on accommodating the needs of children of color.

February 3, 2021 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1)

February 2, 2021

"Local Spending on Jails Tops $25 Billion in Latest Nationwide Data"

The title of this post is the title of this new report from the Pew Charitable Trust folks.  Here are excerpts from the report's overview:

Historically, the roughly 3,000 local jails operating in the United States have received less public and policymaker attention than prisons.  But now, the COVID-19 pandemic has put jails — secure correctional facilities, generally operated by county or municipal governments, where people are detained before trial or confined post-conviction for periods usually lasting less than a year — under additional scrutiny.  Jails rely on close confinement and so are high risk for disease transmission.  Local governments are also confronting the budget implications of the pandemic and looking for potential savings, especially in costly areas such as corrections.

This environment provides an opportunity to examine correctional expenditures and consider strategies that may offer enduring public safety and fiscal benefits.  The available data indicates that to mitigate COVID-19 exposure risk, jurisdictions reduced jail populations by about 31% nationwide from March to May 2020, and although those populations partially rebounded, they were still 15% below March levels as of October 2020.  Further, people released from jail in March were readmitted less often over the ensuing six months than those released in January, suggesting that the pandemic-related decreases in jail populations did not affect public safety.  These reductions may not yield immediate savings, but a sustained commitment to safely cutting the number of people in jail could provide long-term financial benefits.  The recent experience of reducing prison populations offers a glimpse of the potential cost savings: The 9% drop in the prison population from 2008 to 2018 virtually flattened corrections spending, which had averaged 5.4% annual growth from 1991 to 2007.

To support state and local efforts to reduce jail spending and protect public safety, The Pew Charitable Trusts undertook an analysis of jail costs, using expenditure data for all U.S. localities, primarily from 2007 and 2017, and related criminal justice data..... 

Key findings include:

Local governments spend billions on jails.  As of the end of 2017:

  • Jail and other local corrections costs had risen sixfold since 1977, with jail costs reaching $25 billion.
  • Almost 2 in 5 dollars spent on state and local correctional institutions went to jails.
  • About 1 in 17 county dollars was spent on jails.
  • The average annual cost of holding a person in jail was about $34,000.
  • Roughly a third of jail facility capacity was more than 30 years old, and about 20% of jails were overcrowded, which could present significant capital challenges to local budgets.

Jail costs rose even as crime and admissions to jail fell.  As of the end of 2017:

  • A 20% decrease in crime and a 19% drop in jail admissions since 2007 had not led to reduced jail spending.
  • The portion of local budgets spent on jails did not correlate with state crime rates.
  • Small localities spent more per capita on jails than most other jurisdictions, despite having lower crime rates.

Nationwide, counties and cities are seeking to address budgetary pressures during these difficult fiscal times and for the long term.  New policies and practices — including many they already have embraced in response to the pandemic — can safely reduce jail populations and associated costs and help them achieve those goals.

February 2, 2021 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Another round of coverage of Prez Trump's clemency grants (and some folks left behind)

It is now nearly two full week since former Prez Trump issued his large batch of clemencies in his final hours in office.  As I mentioned in this post last week, Trump's entire clemency record is full of fascinating and frustrating stories with respect to individual cases and the body of clemency work.  I did a round-up of recent pieces assessing Trump's clemency activities law week, but another week of press coverage reveals another set of interesting stories about both clemencies granted and not granted:

From CBS News, "Man serving life sentence for non-violent crime reunites with family after Trump pardon: 'A piece of me is back'"

From CNN, "This former prisoner had an unlikely supporter: the judge who sentenced him"

From Forbes, "The Inside Story Of A Trump Pardon Gone Wrong"

From Newsday, "How the plan to grant clemency to Sheldon Silver was scuttled"

From Politico, "The Real Scandal Is the Pardon Trump Didn’t Give: Rufus Rochell checked all the right boxes for clemency: an exemplary record in prison, advocacy out of it, and a friendship with a famous Trump booster. So why didn’t he get it?"

From SF Weekly, "Meet the Cannabis Offenders Pardoned by Trump"

I hope it will not be too long before we have some clemency action by Prez Biden to talk about, but I am not really all that optimistic on that front. 

February 2, 2021 in Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

February 1, 2021

Highlighting bipartisan accomplishments and opportunities in the arena of criminal justice reform

Marc Levin has this notable new Hill commentary headlined "Build a bridge, not a wall, between administrations on justice reform," which emphasizes ground for bipartisan criminal justice reform work past and present.  I recommend the full piece and here are excerpts:

Few would dispute that the First Step Act was the crown jewel of bipartisan achievements over the last four years.  It contributed to the shrinking of the federal prison population through provisions such as lowering mandatory minimum penalties for drug offenses and making retroactive a reduction in the crack and powder sentencing law disparity.  Additionally, the CARES Act earlier this year expanded medical parole eligibility in the face of the wrenching impact of COVID-19 on incarcerated people and staff.

Other bipartisan accomplishments flew under the radar.  In 2018, the Juvenile Justice and Delinquency Prevention Act was reauthorized with provisions added to phase out the shackling of pregnant girls, require the separation of jailed youth from incarcerated adults, and ensure that racial disparities are tracked and addressed. In 2019, legislation was passed to stop abusive IRS prosecutions for “structuring,” which put some law-abiding small business owners through a dragnet simply because they made bank deposits of $10,000 or more.

Just two days before leaving office, Trump took action on another justice-related topic, overcriminalization.  In an effort to rein in the proliferation of obscure criminal penalties that can unwittingly trip up individuals and businesses, Trump issued an executive order mandating that when federal agencies create criminal offenses through regulations, they specify the culpable mental state required for conviction.

While the Biden administration should seek continuity in these areas, there is no shortage of work to do on other aspects of criminal justice reform.  In June 2020, the Council on Criminal Justice convened a bipartisan Task Force on Federal Priorities, chaired by former Georgia Gov. Nathan Deal, that issued numerous recommendations, including the reinstatement of Pell grants for people in prison that was adopted in December.  Among the most important items deserving action by the White House and Congress are Task Force recommendations to abolish federal drug mandatory minimums, expand record sealing, and allow courts to take a second look at certain sentences after individuals have spent many years behind bars.

Fortunately, many of these priorities are already teed up for bipartisan action in Congress.  For example, acquitted conduct legislation backed by lawmakers ranging from Sen. Richard Durbin (D-Ill.) to Sen. Mike Lee (R- Utah) would prohibit prosecutors from contaminating the sentencing phase of a trial with references to conduct that the jury determined the defendant was not guilty of.

Another priority is marijuana reform, which — at a minimum — should include waiving federal laws that interfere with state legalization of medicinal or recreational marijuana. All but six states have now legalized marijuana in some form, and yet federal law inexplicably continues to classify it as a Schedule 1 drug, along with heroin, LSD, and crack cocaine.  This continued federal war on cannabis drives underground what should be legitimate activity going through reputable financial institutions.  The new administration and Congress must not only start a new chapter on marijuana policy, but also remedy the injustices and inequities of the past by authorizing actions such as automatic record clearing of marijuana convictions....

Criminal justice policy is too important to leave to any one political party.

February 1, 2021 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

CCJ's National Commission on COVID-19 and Criminal Justice releases latest "Impact Report: COVID-19 and Crime"

noted here some months ago that the Council on Criminal Justice (CCJ) had launched an important, timely and impressive new commission titled the "National Commission on COVID-19 and Criminal Justice" and headed by two former US Attorneys General.  That commission has already helped produce a number of important works (examples here and here and here), and I see that it released yesterday this new report formally titled "Pandemic, Social Unrest, and Crime in U.S. Cities: 2020 Year-End Update."  This webpage, titled "Impact Report: COVID-19 and Crime," provides this overview:

This report examines changes in crime rates in 34 American cities during calendar year 2020, with a special emphasis on homicide and other violent crimes.  The current study updates previous studies by the authors with additional data through December 2020.  The study was conducted by criminologist and Professor Emeritus Richard Rosenfeld and Ernesto Lopez of the University of Missouri–St. Louis and Thomas Abt, Commission Director and Council on Criminal Justice Senior Fellow.

Methodology

This study examines monthly crime rates for ten violent, property, and drug offenses in  34 U.S. cities. Not all cities reported monthly data for each crime.  The largest city in the sample is New York, with 8.42 million residents.  The smallest is Norfolk, Virginia, with 245,000 residents.  The crime data were obtained from the online portals of city police departments. The data are subject to revision, and offense classifications varied somewhat across the cities.

Findings

  • Homicides rose sharply in 2020, and rates of aggravated assaults and gun assaults increased as well.  Homicide rates were 30% higher than in 2019, an historic increase representing 1,268 more deaths in the sample of 34 cities than the year before.
  • The magnitude of this increase is deeply troubling, but absolute rates of homicide remain well below historical highs.  In 2020, the homicide rate was 11.4 deaths per 100,000 residents in sample cities; 25 years earlier, in 1995, the rate was 19.4 per 100,000 residents.
  • Aggravated assault and gun assault rates in 2020 were 6% and 8% higher, respectively, than in 2019.  Robbery rates declined by 9%.
  • Domestic violence increased significantly during the early months of the pandemic, but these results should be viewed with caution as year-end rates were comparable to year-end rates in 2019, and findings were based on data from just 12 cities.
  • Property and drug crime rates, with the exception of motor vehicle theft, fell significantly in 2020.  Residential burglary decreased by 24%, nonresidential burglary by 7%, larceny by 16%, and drug offenses by 30%.  Motor vehicle theft rose by 13%.
  • Homicides increased in nearly all of the 34 cities in the sample.  In the authors’ view, urgent action is necessary to address these rapidly rising rates.  Subduing the pandemic, increasing confidence in the police and the justice system, and implementing proven anti-violence strategies will be necessary to achieve a durable peace in the nation’s cities.

Fox News has this lengthy discussion of this report under the full headline "America's murder rate increase in 2020 has 'no modern precedent,' crime analyst group finds: New report analyzes crime rates amid coronavirus pandemic, civil unrest across U.S."  Notably, Salon has a different take on the data in this new piece fully headlined "Did 'defund the police' lead to an increase in murder? Almost certainly not: In fact, hardly any cities have 'defunded' cops—the troubling spike in homicide is probably pandemic-related."

As regular readers know, crime trends are challenging to understand and predict even during calm times, and 2020 was surely the antithesis of calm times.  I am inclined to guess that the multi-factors chaos of 2020 contributed in multiple ways to the big increase in violent crimes and the continued decrease in most property crimes.  (I would hypothesize that drug crimes actually increased in 2020, but detection and arrests decreased.)  I would also guess that we will see some regression to the mean in 2021 no matter what happens with the pandemic and policy efforts.

That all said, I continue to wonder how a nation that has now become somewhat acclimated to thousands of COVID deaths every day will react to reports of a few dozen more homicide deaths each week in 2020.  It might be especially interesting to see surveys of community perspectives on the perceived threats of, and possible responses to, COVID and violent crime in a wide array of American neighborhoods.  Stay safe everyone during these remarkable times.

UPDATE:  Paul Cassell has a detailed examination of the new CCJ report under a full headline that highlights its main themes: "Explaining the Great 2020 Homicide Spike: While a new report released today by the Council on Criminal Justice downplays the role anti-police protests played in last year's unprecedented homicide spike, a decline in pro-active policing following the protests remains the most likely cause."

February 1, 2021 in Impact of the coronavirus on criminal justice, National and State Crime Data, Offense Characteristics | Permalink | Comments (0)

January 31, 2021

"Undemocratic Crimes"

The title of this post is the title of this new article authored by Paul Robinson and Jonathan Wilt. Here is its abstract:

One might assume that in a working democracy the criminal law rules would reflect the community’s shared judgments regarding justice and punishment.  This is especially true because social science research shows that lay people generally think about criminal liability and punishment in consistent ways: in terms of desert, doing justice and avoiding injustice.  Moreover, there are compelling arguments for demanding consistency between community views and criminal law rules based upon the importance of democratic values, effective crime-control, and the deontological value of justice itself.

It may then come as a surprise, and a disappointment, that a wide range of common rules in modern criminal law seriously conflict with community justice judgments, including three strikes and other habitual offender statutes, abolition or narrowing of the insanity defense, adult prosecution of juveniles, felony murder, strict liability offenses, and a variety of other common doctrines.

In short, democratically elected legislatures have regularly chosen to adopt criminal law rules that conflict with the deep and abiding intuitions of their constituents.  We endeavor to explain how this incongruent situation has arisen.  Using the legislative and political histories of the doctrines noted above, we document four common causes: legislative mistake about the community’s justice judgments, interest group pressure, prioritizing coercive crime-control mechanisms of general deterrence and incapacitation of the dangerous over doing justice, usually at the urging of academics or other supposed experts, and legislative preference for delegating some criminalization decisions to other system actors, such as prosecutors and judges.

Analysis of these reasons and their dynamics suggests specific reforms, including a legislative commitment to reliably determine community justice judgments before enactment and to publicly explain the reasons for enacting any criminal law rule that conflicts.  Creation of a standing criminal law reform commission would be useful to oversee the social science research and to help hold the legislature to these public promises.

January 31, 2021 in Offense Characteristics, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Prison Policy Initiative sets out long list of "Winnable criminal justice reforms" for state systems

Prison Policy Initiative has produced this effective ten-page document titled "Winnable criminal justice reforms: A Prison Policy Initiative briefing on promising state reform issues for 2021."  I count well over two dozen notable suggested reforms on the list, each of which comes with helpful links and additional information.  Check out the whole document, and here are two of the many sentencing items to whet appetites:

Make it easier to change excessive prison sentences

Problem: Nationally, one of every six people in state prisons have been incarcerated for a decade or more. While many states have taken laudable steps to reduce the number of people serving time for low-level offenses, little has been done to bring relief to people needlessly serving decades in prison.

Solutions: State legislative strategies include: enacting presumptive parole, second-look sentencing, and other common-sense reforms, such as expanding “good time” credit policies. All of these changes should be made retroactive, and include people convicted of both violent and nonviolent offenses.

Example bill: The Second Look Act of 2019 https://www.congress.gov/bill/116th-congress/senate-bill/2146, which proposed to allow people to petition a federal court for a sentence reduction afer serving at least 10 years.

More information: See our reports Eight Keys to Mercy: How to shorten excessive prison sentences https://www.prisonpolicy.org/reports/longsentences.html and Reforms Without Results: Why states should stop excluding violent offenses from criminal justice reforms https://www.prisonpolicy.org/reports/violence.html.

Repeal or reform mandatory minimum sentences and automatic “sentencing enhancements”

Problem: Mandatory minimum sentences and similar automatic sentencing structures like “sentencing enhancements” have fueled the country’s skyrocketing incarceration rates, harming individuals and undermining our communities and national well-being, all without significant increases to public safety.

Solutions: The best course is to repeal these laws so that judges can craft sentences to fit the unique circumstances of each crime and individual, but where that option is not  possible, states should adopt sentencing “safety valve” laws, which give judges the ability to deviate from the mandatory minimum under specified circumstances.

Model and example bills: Several examples of state and federal statutes are included in Families Against Mandatory Minimums’ (FAMM) Turning Off the Spigot: How Sentencing Safety Valves Can Help States Protect Public Safety and Save Money https://famm.org/wp-content/uploads/State-Safety-Valve-Report-Turning-Off-the-Spigot.pdf; see also American Legislative Exchange Council’s (ALEC) Justice Safety Valve Act https://www.alec.org/model-policy/justicesafety-valve-act/

More information: See FAMM’s Turning Off the Spigot: How Sentencing Safety Valves Can Help States Protect Public Safety and Save Money and our Geographic Sentencing Enhancement Zones page https://www.prisonpolicy.org/zones.html.

January 31, 2021 in Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (2)