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March 19, 2022

South Carolina joins handful of states authorizing firing squad as execution method

As reported in this local article, "executions by a state-approved firing squad are now able to be carried out in South Carolina." Here is more:

The S.C. Department of Corrections informed the state’s Attorney General Alan Wilson Friday that it is now able to execute death row inmates using a three-person firing squad using live ammunition if an inmate chooses that method.

The Legislature passed a law in 2021 that makes the electric chair South Carolina’s primary method of execution, but gives inmates the option to choose death by firing squad or lethal injection if available. Lethal injection has been unavailable for years in South Carolina.

The executions will be carried out at the department’s Broad River Correctional Institution outside of downtown Columbia, after the agency spent about $53,600 on supplies and materials to make the changes and comply with state law.

To carry out the execution, the agency said the firing squad will stand behind a wall and use rifles.  But the department did not specify what type of rifle or what kind of ammunition.  All firing squad members will be volunteers.  The rifles will not be visible to the witness room, and, unlike the electric chair, the witnesses will only be able to see the right side of the inmate’s profile. Witnesses will be separated from the chamber by bullet-resistant glass.

The inmate, wearing a prison-issued uniform, will be giving the opportunity to make a last statement and then will be strapped into the execution chair and a hood will be placed over their head.  A “small aim point will be placed over his heart by a member of the execution team,” at which point the warden will read the execution order and the team will fire, the department said.  When the inmate is declared dead and the curtain is moved, witnesses will be escorted out.

South Carolina has 35 inmates now on death row.  The last execution was carried out in 2011.  The state has been unable to carry out executions because it lacks the drugs necessary for the lethal injection method. In large part because of the delay, lawmakers added the firing squad option to the law.

South Carolina is now one of four states that offer the firing squad as an execution option, according to the Death Penalty Information Center. The other states are Utah, Mississippi and Oklahoma.

March 19, 2022 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (17)

"Proportionality, Constraint, and Culpability"

The title of this post is the title of this new essay authored by Mitchell Berman now available via SSRN. Here is its abstract:

Philosophers of criminal punishment widely agree that criminal punishment should be “proportional” to the “seriousness” of the offense.  But this apparent consensus is only superficial, masking significant dissensus below the surface.  Proposed proportionality principles differ on several distinct dimensions, including: (1) regarding which offense or offender properties determine offense “seriousness” and thus constitute a proportionality relatum; (2) regarding whether punishment is objectionably disproportionate only when excessively severe, or also when excessively lenient; and (3) regarding whether the principle can deliver absolute (“cardinal”) judgments, or only comparative (“ordinal”) ones.

This essay proposes that these differences cannot be successfully adjudicated, and one candidate proportionality principle preferred over its rivals, in the abstract; a proportionality principle only makes sense as an integrated part of a more complete justificatory theory of criminal punishment.  It then sketches a proportionality principle that best fits the responsibility-constrained pluralist theories of criminal punishment that currently predominate. The proportionality principle it favors provides that punishments should not be disproportionately severe, in noncomparative terms, relative to an agent’s culpability in relation to their wrongdoing.

March 19, 2022 in Purposes of Punishment and Sentencing | Permalink | Comments (0)

March 18, 2022

Federal prison population, now at 154,194, has grown by well over 1100 persons in a short month

In this post last month, I suggested it may be foolish to be obsessed with weekly federal prison population data.  But, I cannot help myself in light of the roller-coaster story of recent times: after historic federal prison population declines over the last two presidential terms (for a wide variety of reasons), the federal prison population slowly climbed through 2021 before another big drop in early 2022 with the implementation of FIRST STEP earned-time credits.

Checking in this week at the federal Bureau of Prisons updated reporting of "Total Federal Inmates," I see that we are back to the up-slope of this roller-coaster ride.  Specifically, "Total Federal Inmates," now clocks in at 154,194, nearly 1150 more prisoners than the total number of federal inmates as of just four weeks ago, February 17, 2022, when the number stood at of 153,053.  

I continue to suspect and assume this new data reflects some "return to normal" operations for the federal criminal justice system, with fewer COVID-related delays in cases and prison admissions (and many fewer COVID-related releases) producing this significant one-month federal prison population growth.  But, whatever the particulars, I will not forget that candidate Joe Biden promised to "take bold action to reduce our prison population" and to "broadly use his clemency power for certain non-violent and drug crimes."  Fourteen months into his administration, I am unaware of any bold action taken by Prez Biden and he has still yet to use his clemency power a single time, let alone broadly.

March 18, 2022 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (11)

March 17, 2022

Contextualizing Judge Jackson's mainstream sentencing record in federal child porn cases

A tweet stream by Senator Josh Hawley about writings, comments and sentencings by SCOTUS nominee Judge Jackson has kicked off a robust discussion of her attitudes toward sex offenders and those who download child pornography (CP). Senator Hawley's tweets referenced Judge Jackson's law school Note in the Harvard Law Review and questions she asked while on the US Sentencing Commission.  What the Senator references in these tweets struck me as not especially sensational nor ultimately a strong basis for questioning her judicial temperament or philosophy.  But he thereafter discussed Judge Jackson's below-guideline sentencing decisions in CP cases when she served as a federal district judge, and I certainly consider reviews of sentencing decisions to be a fair and sound component of assessing Judge Jackson's record as a jurist.

But, to be truly fair and sound, any review of Judge Jackson's CP sentencings must include proper context regarding the federal sentencing guidelines for CP which are widely recognized as dysfunctional and unduly severe.  As this recent US Sentencing Commission report explains, the CP guideline (2G2.2) "fails to distinguish adequately between more and less severe offenders" (p. 19), and "most courts believe §2G2.2 is generally too severe and does not appropriately measure offender culpability in the typical non-production child pornography case" (p. 22).  With the CP guidelines "too severe" and poorly designed to "measure offender culpability" in the digital age, federal judges nationwide rarely follow them.  Indeed, data in recent (and past) USSC reports document that Judge Jackson's record of imposing below-guideline CP sentences is quite mainstream because: (1) federal judges nationwide typically sentence below the CP guideline in roughly 2 out of 3 cases (p. 23), and (2) federal judges nationwide, when deciding to go below the CP guideline, typically impose sentences around 54 months below the calculated guideline minimum (p. 25).

Reviewing a brief accounting of nine CP cases sentenced by Judge Jackson (which I believe was produced by GOP Senators and/or staff and was forwarded to me), I was first struck by the fact that in a majority of these cases (5 of 9) the prosecution advocated for a below-guideline sentence and in three others the prosecution advocated for only the guideline minimum.  In other words, Judge Jackson was generally sentencing CP defendants in cases in which even the prosecution concluded mitigating factors meant that the guidelines were not a proper benchmark range in light of congressional sentencing purposes.  Notably, the recent USSC report indicates that the government formally moves for a below-range sentence in roughly 1 out of every 5 CP cases (p. 23); it is not clear if prosecutors made formal motions for departures or variances in Judge Jackson's CP cases, but it is clear that in the majority of these cases the prosecutors were the ones who requested a sentence below the CP guidelines.

In the nine cases, Judge Jackson followed the prosecutors' sentencing recommendations in two cases, and sentenced below the prison term suggested by the government in seven others.  One case, US v. Hillie, distorts the average deviation from the prosecutors' recommendations, as the government there sought a sentence of 45 years and Judge Jackson imposed a sentence of "only" 29.5 years. Leaving that case out of the average, in the other eight cases, Judge Jackson's sentence was only about 1.8 years below the recommendation of prosecutors (and about .6 years above the defense recommendations).  In those cases, Judge Jackson did sentence, on average, about 54 months below the calculated guideline minimum, but that degree of reduction from the guideline minimum is almost identical to the national average reduction according to the USSC report (p. 25).

In other words, Judge Jackson's record in these CP cases does show she is quite skeptical of the ranges set by the CP guidelines, but so too were prosecutors in the majority of her cases and so too are district judges nationwide (appointed by presidents of both parties).  I use the word "mainstream" to describe Judge Jackson's sentencing patterns here because they strike me as not at all out of the ordinary; there are surely federal judges who have sentenced CP offenders more harshly, but there are also surely federal judges who have sentenced CP offenders more leniently.  Judge Jackson's sentencing record in CP cases reflects the fundamental flaws of the CP guidelines (and perhaps a relatively mitigated group of offenders she was tasked with sentencing).  As I see it, these cases do not really reveal any kind of unique or uniquely concerning sentencing jurisprudence.

There is more to say on this topic — e.g., I suspect that Judge Jackson's views in these cases were usefully informed by (1) the unanimous bipartisan USSC report authored in 2012 which stressed "the current sentencing scheme results in overly severe guideline ranges for some offenders based on outdated and disproportionate enhancements" and (2) the Justice Department's 2013 follow-up letter that "joined in the call for a critical review of the existing sentencing guidelines for non-production child pornography crimes" — and I suspect we will hear a lot more on this topic in the days ahead.  For now, I will conclude where the title of this post starts: if and when we properly contextualize Judge Jackson's sentencing record in federal child porn cases, it looks pretty mainstream.

March 17, 2022 in Federal Sentencing Guidelines, Sex Offender Sentencing, Who Sentences | Permalink | Comments (13)

"Reasonable Moral Doubt"

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

Sentencing outcomes turn on moral and evaluative determinations.  For example, a finding of “irreparable corruption” is generally a precondition for juvenile life without parole.  A finding that the “aggravating factors outweigh the mitigating factors” determines whether a defendant receives the death penalty.  Should such moral determinations that expose defendants to extraordinary penalties be subject to a standard of proof?  A broad range of federal and state courts have purported to decide this issue “in the abstract and without reference to our sentencing case law,” as the Supreme Court recently put it.  Kansas v. Carr, 577 U.S. 108, 119 (2016).  According to these courts, “it would mean nothing” to ask whether the defendant “deserves mercy beyond a reasonable doubt” or “more-likely-than-not deserves it” because moral questions are not “factual.” Instead, moral determinations are highly subjective “value calls” to which concepts of doubt and certainty do not intelligibly apply.

Implicit in these rulings is a controversial view of the nature of moral judgment.  This Article traces the contours of the view and argues that it is out of step with the way the broader public thinks about morality and fails to address the issues defendants have raised. Courts should avoid wading into such controversial waters for two reasons.  First, the judiciary has historically maintained neutrality on issues of significant public concern.  Second, even if moral determinations are not factual, applying a standard of proof to at least some moral decisions at sentencing would change the outcome of the sentencer’s deliberations, and improve the legitimacy of the legal system.  For the “reasonableness” of doubt depends on context; and moral questions — "are you certain the defendant deserves death?” — make salient the stakes relative to which a person should decide what to believe about ordinary empirical matters.  On the resulting view, reasonable doubt in the final moral analysis is not just intelligible, but essential for correcting a bias in the structure of the bifurcated criminal trial that systematically disadvantages defendants: the tendency for de-contextualized “factual findings” in the guilt phase to control outcomes at sentencing.

March 17, 2022 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Pleased to see SCOTUS nomination of Judge Jackson bringing more attention to US Sentencing Commission

As folks gear up for next week's Supreme Court confirmation hearing in the Senate, I have been quite pleased to see a number of recent news stories focused on the US Sentencing Commission and the ways in which nominee Judge Jackson's service on the USSC might impact her work on SCOTUS.  Here is a round-up of the most recent pieces:

From Law360, "Sentencing-Commission Years Prepped Jackson for High-Court Job"

From USA Today, "Supreme Court pick Ketanji Brown Jackson could have 'profound' impact on sentencing"

From the Wall Street Journal, "Once Home to Ketanji Brown Jackson, Sentencing Commission Now Sits Quiet as Issues Go Unresolved"

The last of these pieces effectively reviews the broader concern of the USSC lacking a quorum of Commissioners for many years, while flagging how important this body could and should be while the FIRST STEP Act is still being implemented and there remains considerable bipartisan support for some forms of sentencing reform.  Here is an excerpt from the WSJ piece:

President Biden is in position to appoint the whole commission anew, when there is bipartisan support for making some aspects of federal sentencing less harsh. The president, however, hasn’t yet nominated a slate of commissioners and the White House declined to comment on when he may do so.  “The potential for the commission to do big things with the right set of people is huge,” said New York University law professor Rachel Barkow, a former commissioner.

The commission’s acting chairman and lone member, U.S. District Judge Charles Breyer, said he hopes a new commission will conduct a comprehensive review of the federal guidelines. “Science and evidence has come forward suggesting that lengthy sentences do not necessarily result in community safety,” said Judge Breyer, who will remain on the commission until the end of the year.

UPDATE: Though I wanted this post to focus mostly on the USSC, I figure an afternoon update is justified in light of more notable headlines and articles concerning Judge Jackson history and position as an historic SCOTUS nominee:

From the New York Times, "As Jackson Faces Senators, Her Criminal Defense Record Is a Target"

From The Hill, "Hawley says sentences in 10 child porn cases raise red flags on Supreme Court pick"

From Politico, "Durbin, White House slam emerging GOP attack on KBJ sex offender rulings"

From Forbes, "Americans Support Jackson’s Supreme Court Nomination 2-To-1, Study Finds"

March 17, 2022 in Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (7)

March 16, 2022

"Ruined"

The title of this post is the title of this intriguing new article authored by Maybell Romero now available via SSRN. Here is its abstract:

Judges play a critical role in one of the most important states of a criminal case’s adjudication — sentencing.  While there have been substantial limitations placed on the discretion judges can exercise in devising punishments, there are little to none on what judges say at such hearings when articulating their rationales for the sentences they impose on convicted defendants.  This Article examines the language judges use when sentencing defendants convicted rape, sexual assault, and sexual abuse that describes victims of those crimes and the harms they have sustained, especially language that describes victims as “ruined,” “broken,” or “destroyed.”  The use of such language, while apparently meant to be empathetic, only serves to uphold misogynistic understandings of rape and sexual assault and actively harms victims. Judges trying to justify harsh sentences for defendants convicted of sex crimes also engage in shaming and exploitation of victims when saying that defendants have left victims “ruined” at sentencing.

In this Article I use traditional scholarly methods of reviewing and analyzing cases and legal doctrine to show why the use of such language is harmful to victims and flouts the purposes of criminal punishment.  However, I also engage in autoethnographic methods, relying on my own experiences of rape and sexual assault, as well as prosecuting such cases. This Article considers at how other fields such as medicine and public health have approached destigmatizing other historically stigmatized conditions like substance use and mental illness, arguing that judges should take similar steps to destigmatize being a victim of rape and sexual assault by more carefully considering their language use at sentencing.  I conclude by reflecting on the use of personal narrative in legal scholarship and in the classroom and argue that it can be a powerful tool that scholars should more openly embrace.

March 16, 2022 in Procedure and Proof at Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (0)

US Sentencing Commission publishes 2021 Annual Report and Sourcebook of Federal Sentencing Statistics

I received news via email today that the US Sentencing Commission has now published its 2021 Annual Report and Sourcebook of Federal Sentencing Statistics. Here are the links and highlights that appeared in the USSC email:

FY21 Fast Facts

The Sourcebook presents information on the 57,287 federal offenders sentenced in FY21 (October 1, 2020 through September 30, 2021)—a sentencing caseload that decreased by more than 7,000 from the previous fiscal year.

  • Drug trafficking, immigration, firearms, and fraud crimes together comprised 83% of the federal sentencing caseload in FY21.  
  • Drug trafficking was the most common federal crime type sentenced, accounting for 31% of the caseload. 
  • Immigration cases accounted for the next largest group (30%) but decreased by more than one-third from the number of those cases in FY20. 
  • Methamphetamine continued to be the most common drug type in the federal system, and a steadily growing portion of the drug caseload (up from 31% of drug cases in FY16 to 48% in FY21).
    • In FY21, Fentanyl moved into the top five drug types in the federal caseload. The Commission has added it to the Drug Offenses section of the Sourcebook
  • Methamphetamine trafficking continued to be the most severely punished federal drug crime (90 months).
  • Two-thirds (67%) of drug offenders were convicted of an offense carrying a mandatory minimum penalty, holding steady from the previous year.
  • 69% of federal offenders were sentenced under the Guidelines Manual (either within range or outside the range for departure reasons in the manual). 

Agency Highlights

The Annual Report presents an overview of the Commission's work in FY21.

  • Beginning in FY21 and continuing into FY22, the Commission has operated with only one voting commissioner, lacking the quorum required to promulgate guideline amendments. The Commission’s other statutory duties are unaffected by the lack of four voting commissioners.
  • The Commission published new findings from its largest recidivism study yet—combining Commission and FBI data to study more than 32,000 federal offenders over an 8-year follow-up period.
    • The Commission has now released reports on firearms, drug trafficking, and violent offenders with more reports forthcoming.
  • The Commission also continued to research specific issues of ongoing congressional concern and deliberation—releasing a report on the emerging problem of fentanyl and fentanyl analogues, and two reports updating its 2012 report to Congress on child pornography offenses.
  • In late September 2021, the Commission released the Judiciary Sentencing INformation (JSIN) tool—an online sentencing data resource developed for judges but made available to the public at large. The platform provides quick and easy online access to sentencing data for similarly-situated defendants, including the types of sentences imposed and average and median sentences.
  • In FY21, the Commission conducted 115 virtual training sessions and more than 13,000 individuals attended live, online, or on-demand prerecorded training sessions—a three-fold increase over the number of trainees in a typical year.

March 16, 2022 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

New Third Way report details "The Red State Murder Problem"

The "center-left" think tank Third Way has this interesting new accounting of the increase in murders in 2020 in a new report titled "The Red State Murder Problem."  I recommend the full report and its linked data, and here is an excerpt:

The US saw an alarming 30% increase in murder in 2020.  While 2021 data is not yet complete, murder was on the rise again this past year. Some “blue” cities, like Chicago, Baltimore, and Philadelphia, have seen real and persistent increases in homicides.  These cities — along with others like Los Angeles, New York, and Minneapolis — are also in places with wall-to-wall media coverage and national media interest.

But there is a large piece of the homicide story that is missing and calls into question the veracity of the right-wing obsession over homicides in Democratic cities: murder rates are far higher in Trump-voting red states than Biden-voting blue states.  And sometimes, murder rates are highest in cities with Republican mayors.

For example, Jacksonville, a city with a Republican mayor, had 128 more murders in 2020 than San Francisco, a city with a Democrat mayor, despite their comparable populations.  In fact, the homicide rate in Speaker Nancy Pelosi’s San Francisco was half that of House Republican Leader Kevin McCarthy’s Bakersfield, a city with a Republican mayor that overwhelmingly voted for Trump.  Yet there is barely a whisper, let alone an outcry, over the stunning levels of murders in these and other places.

We collected 2019 and 2020 murder data from all 50 states.  (Comprehensive 2021 data is not yet available.)  We pulled the data from yearly crime reports released by state governments, specifically the Departments of Justice and Safety. For states that didn’t issue state crime reports, we pulled data from reputable local news sources.  To allow for comparison, we calculated the state’s per capita murder rate, the number of murders per 100,000 residents, and categorized states by their presidential vote in the 2020 election, resulting in an even 25-25 split.

We found that murder rates are, on average, 40% higher in the 25 states Donald Trump won in the last presidential election compared to those that voted for Joe Biden.  In addition, murder rates in many of these red states dwarf those in blue states like New York, California, and Massachusetts.  And finally, many of the states with the worst murder rates — like Mississippi, Kentucky, Alabama, South Carolina, and Arkansas — are ones that few would describe as urban. Only 2 of America’s top 100 cities in population are located in these high murder rate states.  And not a single one of the top 10 murder states registers in the top 15 for population density.

Whether one does or does not blame Republican leaders for high murder rates, it seems that Republican officeholders do a better job of blaming Democrats for lethal crime than actually reducing lethal crime.

Of course, one does not need to be a criminologist to notice that most "red states" with high murder rates are southern states, and lots of lots of research has identified relationships between higher temperature and and higher violent crime rates. It would be quite interesting (though probably challenging) to try to run these data by comparing states and cities with comparable climates.

Though one might temper reactions to this report with an eye on temperatures, this report still provide a useful reminder (1) that crime challenges are always dynamic nationwide regardless of the political concerns of the moment, and (2) that it will often be much easier for politicians than for data scientists to claim a link between crime policies and crime.

March 16, 2022 in National and State Crime Data, Who Sentences | Permalink | Comments (21)

March 15, 2022

Spotlighting the new widening potential of electronic monitoring

This new Los Angeles Times op-ed authored by Kate Weisburd and Alicia Virani and headlined "The monster of incarceration quietly expands through ankle monitors," spotlights why many are concerned that electronic monitoring and other new supervision tool may expanded rather than reduce our nation's carceral footprint.  I recommend the full piece, and here are excerpts (with links from the original):

In Los Angeles County, the number of people ordered to wear electronic ankle monitors as a condition of pretrial release went up 5,250% in the last six years, according to a recent report by the UCLA Criminal Justice Program. The figure rose from just 24 individuals in 2015 to more than 1,200 in 2021.  This type of carceral surveillance is becoming the “new normal” across the U.S....

It’s widely defended as “better than jail,” but being “better than jail” does not make a criminal justice policy sound — much less humane or legal....  It’s deceptive to even compare jail and ankle monitors as though they are the only two options.  There is a third option: freedom.  In 2015 and before, L.A. judges were unlikely to order electronic monitoring as a condition of release before trial. Judges either set bail, released people on their own recognizance or ordered that people be detained in jail until trial.

Now, judges seem to be defaulting to electronic monitoring, perhaps for people who would — or should — otherwise be free. For people who would otherwise be in jail, monitoring may be preferable.  But for people who are monitored instead of being released on their own recognizance, monitoring reflects a dangerous expansion of the carceral state.

This “E-jail” entails a web of invasive rules and surveillance technologies, such as GPS-equipped ankle monitors, that allow law enforcement to tag, track and analyze the precise locations of people who have not been convicted of any crime....  The difference between E-jails and real jails is a matter of degree, not of kind.  A recent report by researchers at George Washington University School of Law details the myriad ways that monitoring undermines autonomy, dignity, privacy, financial security and social relationships when they are needed most.

Like in jail, people on monitors lose their liberty. In L.A., as elsewhere, people on monitors are forbidden from leaving their house without pre-approval from authorities days in advance.  Like in jail, people on monitors have little privacy and must comply with dozens of strict rules governing every aspect of daily life. Failing to charge the monitoring device, changing a work or school schedule without permission or making an unauthorized trip to the grocery store can land someone back in jail for a technical violation. It is hardly surprising that in L.A. County, technical rule violations, not new criminal offenses, led to more than 90% of the terminations and reincarcerations applied to people on electronic monitors.

 

Ankle monitoring also further entrenches the very racial and economic inequities that bail reform sought to address. In 2021, 84% of people on pretrial electronic monitoring in L.A. County were either Black or Latinx.  And in most places, though not in L.A., people on ankle monitors before trial are required to pay for the device.   These fees are on top of other costs, such as electric bills (to charge the monitor), cellphone bills (to communicate with the monitoring agency) and the cost of care and transportation for family members that is required because people on monitors often cannot leave home....

There is, however, some reason for optimism.  After years of community organizing, L.A. County’s Board of Supervisors recently passed a motion to develop an independent pretrial services agency within a new Justice, Care and Opportunities Department that takes over the role that probation plays in pretrial services.  This new agency has the ability and authority to end the county’s needless reliance on electronic monitoring.  We urge officials to focus on innovative solutions that rely on community-based support rather than punitive and harmful surveillance technology.

March 15, 2022 in Criminal Sentences Alternatives, Reentry and community supervision, Technocorrections, Who Sentences | Permalink | Comments (8)

Brennan Center reviews "The Landscape of Recent State and County Correctional Oversight Efforts"

The Brennan Center has this notable new resource on prison oversight efforts with themes captured in this subtitle: "Since 2018, many jurisdictions have tried to strengthen transparency and accountability in their correctional systems with mixed results."  Here is part of its start (with links from the original):

Correc­tional insti­tu­tions — pris­ons and jails — are considered closed facil­it­ies. Few visit­ors gain access to these institutions, even though they house people for months, years, decades, and, some­times, entire life­times. As Justice Kennedy wrote in his 2015 concurrence to the Court’s opin­ion in Davis v. Ayala, “Pris­on­ers are shut away — out of sight, out of mind,” while their condi­tions of confine­ment are “too easily ignored” by the public and the legal academy.

These insti­tu­tions are also coer­cive envir­on­ments with marked power differ­en­tials between correc­tions staff and incarcer­ated people that make facil­it­ies ripe for abuse. Because jails and pris­ons exert total author­ity over indi­vidu­als’ bodies and liberty, trans­par­ency and account­ab­il­ity are neces­sary to ensure that facil­it­ies uphold their duty of care to respect the dignity of people who are imprisoned and ensure that pris­ons are safe and secure.

One way to achieve the goals of trans­par­ency and account­ab­il­ity, while ensur­ing safe and humane condi­tions of confinement, is a formal and inde­pend­ent system of over­sight of jail and prison oper­a­tions. As the Bren­nan Center has noted before, although the U.S. has more people behind bars than any other coun­try on the planet, “it lacks a cohes­ive or integ­rated system of over­sight for its vast network of pris­ons and jails.”

The coun­try currently has about 18 entit­ies over­see­ing pris­ons, such as the Correc­tional Asso­ci­ation of New York, the John Howard Asso­ci­ation in Illinois, and the Pennsylvania Prison Soci­ety. There are also a number of inde­pend­ent agen­cies that conduct prison over­sight housed within the exec­ut­ive branch of state govern­ments, such as the Office of the Inspector General in Cali­for­nia. Addi­tion­ally, a hand­ful of inde­pend­ent entit­ies over­see local jails, such as the New York City Board of Correc­tions and the Texas Commis­sion on Jail Stand­ards. Mean­while, most state pris­ons — through their own internal account­ab­il­ity mech­an­isms — rely on monit­ors who work for the very state correc­tional agen­cies that manage these facil­it­ies. The inher­ent prob­lem in this setup is that such internal account­ab­il­ity mech­an­isms lack inde­pend­ence.

This patch­work of over­sight provides insuf­fi­cient cover­age. And the public health crisis result­ing from the highly contagious and deadly Covid-19 virus has shone a spot­light on the preval­ence of inhu­mane condi­tions of confine­ment in America’s correc­tional facil­it­ies. These condi­tions pred­ated the pandemic but worsened in many jails and pris­ons after March 2020....

Inhu­mane condi­tions of confine­ment in Amer­ica’s pris­ons and jails continue to persist, and the nation is in dire need of more prevent­at­ive and inde­pend­ent correc­tional over­sight to rein these abuses in. This resource explores the land­scape of prison and jail over­sight reform since 2018. It high­lights both progress in strength­en­ing correc­tional over­sight and failed attempts to improve monit­or­ing of condi­tions inside these insti­tu­tions.

March 15, 2022 in Prisons and prisoners, Who Sentences | Permalink | Comments (1)

New Sentencing Project report details scope of youth confinement

This new report from The Sentencing Project, titled "Too Many Locked Doors" and authored by Josh Rovner, documents the "wide and deep footprint of youth incarceration." Here is the start of its Executive SUmmary:

The United States incarcerates an alarming number of children and adolescents every year.  Disproportionately, they are youth of color.

Given the short- and long-term damages stemming from youth out of home placement, it is vital to understand its true scope. In 2019, there were more than 240,000 instances of a young person detained, committed, or both in the juvenile justice system.  However, youth incarceration is typically measured via a one-day count taken in late October.

This metric vastly understates its footprint: at least 80% of incarcerated youth are excluded from the one-day count.

This under-count is most prevalent for detained youth, all of whom have been arrested but have yet to face a court hearing. The following are examples of the systemic under-representation of detained youth in the one-day count:

• Thirty-one youths charged with drug offenses are detained for each one measured in the one-day count.

• Twenty-five youths charged with public order offenses are detained for each one measured in the one-day count.

• Seventeen youths charged with property offenses are detained for each one measured in the one-day count.

• Eleven youths charged with person offenses are detained for each one measured in the one-day count.

The variances in commitment are smaller but still noteworthy: more than three youth are committed each calendar year for each youth appearing in the one-day count.

The decade-long drop in detention and commitment masks how common detention remains for youth in conflict with the law. Hundreds of thousands of youth are referred to juvenile courts annually; roughly one-quarter of the time, they are detained.  That proportion has crept upward over a decade in which arrests have declined dramatically.

Data on youth detentions and commitment reveal sharp racial and ethnic disparities. Youth of color encounter police more often than their white peers and are disproportionately arrested despite modest differences in behavior that cannot explain the extent of arrest disparities.  Disparities in incarceration start with arrests but grow at each point of contact along the justice system continuum. In roughly one-quarter of delinquency cases throughout the decade, a youth was detained pre-adjudication. When youth of color are arrested, they are more likely to be detained than their white peers.

March 15, 2022 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Scope of Imprisonment | Permalink | Comments (0)

March 14, 2022

"The Constitutional Guarantee of Criminal Justice Transparency"

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

This article identifies and explores a transparency guarantee that permeates the Constitution’s criminal procedure provisions.  This trans-substantive guarantee protects multiple dimensions of transparency — which I categorize as participatory, informational, and corporal — through overlapping structural safeguards and individual rights, and through protections afforded to both the public and the accused. 

Despite the strength and pervasiveness of the overarching transparency guarantee, the discrete provisions from which it is derived are often peripheral in today’s criminal justice system, which is dominated by plea bargaining and incarceration, rather than trials and public-square punishment.  And, because the constitutional transparency protections are viewed in clause-bound isolation, modern transparency deficits are generally viewed as policy problems, not constitutional ones.  I urge that renewed attention to the overarching constitutional transparency guarantee can support doctrinal and legislative efforts to strengthen criminal justice transparency in modern times.

March 14, 2022 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Prison Policy Initiative releases "Mass Incarceration: The Whole Pie 2022"

Wholepie22_twittercard_800x418Many folks like calling March 14 "Pi Day," and for sentencing fans today is especially worth celebrating because the amazing folks at the Prison Policy Initiative have today posted their latest, greatest version of PPI's amazing incarceration "pie" graphic and associated report. "Mass Incarceration: The Whole Pie 2022" provides a spectacular accounting of the particulars of who and how people are incarcerated in the United States.  As I have said in the past, the extraordinary "pies" produced by PPI impart more information in one image than just about any other single resource.  Here is part of the report's introductory text and the concluding discussion:

Can it really be true that most people in jail are legally innocent? How much of mass incarceration is a result of the war on drugs, or the profit motives of private prisons? How has the COVID-19 pandemic changed decisions about how people are punished when they break the law? These essential questions are harder to answer than you might expect. The various government agencies involved in the criminal legal system collect a lot of data, but very little is designed to help policymakers or the public understand what’s going on. As public support for criminal justice reform continues to build — and as the pandemic raises the stakes higher — it’s more important than ever that we get the facts straight and understand the big picture.

Further complicating matters is the fact that the U.S. doesn’t have one “criminal justice system;” instead, we have thousands of federal, state, local, and tribal systems. Together, these systems hold almost 2 million people in 1,566 state prisons, 102 federal prisons, 2,850 local jails, 1,510 juvenile correctional facilities, 186 immigration detention facilities, and 82 Indian country jails, as well as in military prisons, civil commitment centers, state psychiatric hospitals, and prisons in the U.S. territories.

This report offers some much-needed clarity by piecing together the data about this country’s disparate systems of confinement. It provides a detailed look at where and why people are locked up in the U.S., and dispels some modern myths to focus attention on the real drivers of mass incarceration and overlooked issues that call for reform....

The United States has the dubious distinction of having the highest incarceration rate in the world. Looking at the big picture of the 1.9 million people locked up in the United States on any given day, we can see that something needs to change. Both policymakers and the public have the responsibility to carefully consider each individual slice of the carceral pie and ask whether legitimate social goals are served by putting each group behind bars, and whether any benefit really outweighs the social and fiscal costs.

Even narrow policy changes, like reforms to bail, can meaningfully reduce our society’s use of incarceration. At the same time, we should be wary of proposed reforms that seem promising but will have only minimal effect, because they simply transfer people from one slice of the correctional “pie” to another or needlessly exclude broad swaths of people. Keeping the big picture in mind is critical if we hope to develop strategies that actually shrink the “whole pie.”

March 14, 2022 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

March 13, 2022

New DOJ memo says plea agreements should generally not require waivers of compassionate release rights

In this post last month, I spotlighted the news report that some federal prosecutors had been seeking to limit defendants' statutory rights to ever seek a sentence reduction or compassionate release under Section 3582(c)(l)(A).  This new NPR piece, headlined "Justice Department ends limiting compassionate release in plea deals after NPR story," reports on the encouraging news that Main Justice has a new directive on this matter to rein in this problematic practice.  Here are the basics:

The Justice Department is directing prosecutors to stop limiting defendants' ability to seek compassionate release in most federal plea agreements, after advocates criticized the practice as cruel and against the intent of Congress.

DOJ officials handed down the order a month after an NPR story detailed the practice, which curtailed peoples' ability to petition for release from prison because of severe illness or other extraordinary circumstances.  That story drew the attention of Attorney General Merrick Garland who this week said it seemed "wrong" and pledged to fix the issue.

In a new letter, members of the U.S. Senate also expressed alarm at the waivers, which they said had been used in Arizona, Indiana, Ohio, Oklahoma, South Carolina, Tennessee, Massachusetts, Maryland, and Illinois.  "This is a particularly pernicious practice because 97 percent of convictions are obtained through plea agreements," said a new letter from Senator Brian Schatz (D-Hawaii) and 15 other lawmakers....

The lawmakers want the Justice Department to share how many people have signed federal plea deals that include those waivers. For now, they're relying on a few stories of people across the country.  One 65-year-old man in Arizona fought for months to withdraw his guilty plea after realizing it included limits to his ability to seek compassionate release. In another case, in northern California, Senior U.S. District Judge Charles Breyer called the limits "unconscionable" and "inhumane."

The new directive, obtained by NPR and signed by Deputy Attorney General Lisa Monaco, said that the majority of U.S. attorneys have not been requiring defendants to waive their rights to ask for compassionate release.  Still, she said, making the change apply nationally is important as a matter of consistency and "in the interests of justice."

"As a general matter, plea agreements should not require broad waivers of the right to file a compassionate release motion," Monaco wrote in a memo dated March 11.  Monaco added that if defendants had already entered a plea, prosecutors should "decline to enforce the waiver."  The Justice Department memo said there are "select instances" where prosecutors still may ask for a "much narrower" waiver, such as "exceptionally rare" terrorism and homicide cases.

The two-page DOJ memo to all federal prosecutors, dated March 11, 2022, is available at this link, and here is its key paragraph: 

In order to ensure a consistent practice across the Department, as well as an approach that accords with the statute, the relevant guidelines promulgated by the Sentencing Commission, and the interests of justice, the Department now issues the following guidance: As a general matter, plea agreements should not require broad waivers of the right to file a compassionate release motion under Section 3582(c)(l)(A). Specifically, prosecutors should not, as a part of a plea agreement, require defendants to waive: (1) the general right to file a compassionate release motion; (2) the right to file a second or successive such motion; or (3) the right to appeal the denial of a compassionate release.  If a defendant has already entered a plea and his or her plea agreement included a waiver provision of the type just described, prosecutors should decline to enforce the waiver.

Prior related posts:

March 13, 2022 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)