Sentencing Law and Policy

Federal judge orders Mississippi jail into receivership

As reported in this AP article, a "federal judge has seized control of a Mississippi jail after citing 'severely deficient' conditions at the facility." Here is more about a notable ruling:

In a Friday ruling, U.S. Southern District of Mississippi Judge Carlton Reeves placed Hinds County’s Raymond Detention Center in Raymond into receivership. The judge will soon appoint an expert, known as a “receiver,” to temporarily manage the facility in hopes of improving its conditions.

“After ample time and opportunity, regretfully, it is clear that the county is incapable, or unwilling, to handle its affairs,” the judge wrote. “Additional intervention is required. It is time to appoint a receiver.” Reeves said that deficiencies in supervision and staffing lead to “a stunning array of assaults, as well as deaths.” Seven individuals died last year while detained at the jail, he said.

County officials said they’re still digesting the order and are determining whether they will appeal, WLBT-TV reported.

Federal and state judges have ordered receiv­er­ships or a similar trans­fer of control for pris­ons and jails only about eight times, according to Hernandez Stroud, an attorney at the Brennan Center for Justice at NYU School of Law. “What this receivership order looks like is totally within the court’s discretion,” Stroud said. “What powers to give the receiver, how long the receivership should last — those are matters that Judge Reeves will figure out.”

Judge Reeves's 26-page opinion in this matter is available at this link, and here is a portion of its conclusion:

Nearly six years ago, the County entered into a Consent Decree, and later, a Stipulated Order, with the United States to ameliorate the unconstitutional conditions of confinement in its jail system.  Its efforts succeeded at the Work Center. That facility is no longer under federal supervision.  At RDC, however, the dire circumstances that drove this settlement persist.

The County refuses to take responsibility. Instead, it offers a litany of excuses.  But each of these excuses ultimately boils down to the same argument: conditions at RDC are out of the defendants’ hands.  The County wishes to abdicate responsibility for ensuring the health and safety of detainees in its custody.  The Court is compelled to grant that wish. We can’t wait for continued destruction of the facilities.  We can’t wait for the proliferation of more contraband.  We can’t wait for more assaults.  We can’t wait for another death.  The time to act is now.  There is no other choice, unfortunately.

Upon appointment of a receiver, RDC shall no longer languish in the County’s inadequate grip.  The Court will appoint a federal receiver to oversee operations at RDC, who shall begin work as soon as possible, but no later than November 1, 2022.

Though not directly relevant to this ruling, I still think it worth reminding everyone that Judge Reeves is Prez Biden's nominee to be the Chair of the US Sentencing Commission.

Another ugly report on the ugly implementation of the FIRST STEP Act

NBC News has another notable and depressing report on the implementation (or lack thereof) of the prison reform aspects of the FIRST STEP Act.  The full headline provides a summary: "Staffing shortages and deficient training leave First Step Act floundering, federal prison employees say: 'This is the biggest failure I've seen of something that's a law. It's pathetic,' one prison counselor said."  I recommend the piece in full, and here are excerpts:

Chronic staffing shortages in federal prisons and a lack of training have impeded implementation of a Trump-era law designed to give nonviolent inmates the opportunity for early release, locking some up longer and contributing to eroding morale, union leaders and rank-and-file staff members said in interviews....

Staff members at some of the country's largest federal prisons said carrying out the First Step Act, a bipartisan law signed in 2018 by then-President Donald Trump, has been taxing, if not impossible. "It's not going at all," Joe Rojas, the literacy coordinator at the Coleman Federal Corrections Complex in Florida, said of the First Step Act's implementation. "I'm the education department, and we're never open, and if we are, it's barely," said Rojas, who is also the president of the American Federation of Government Employees' Local 506 at Coleman....

Bureau officials say they have worked to identify inmates who qualify for early release and "have no data which suggests inmates had their release dates delayed."

Rojas said employees like him who should be operating programs that can help inmates earn time credits aren't able to do so because they're being diverted to other correctional officer-type duties during the staffing shortage — a practice known as augmentation. "Most of us are augmented," Rojas said. "There's no programming. If there's no programming, you can't do the First Step Act."

Some prior related posts:

• Thousands of federal prisoners finally to get FIRST STEP Act credits as DOJ implements earned time rules
• Articulating concerns while celebrating implementation of FIRST STEP earned-time credits
• Highlighting continuing struggles with implementing the FIRST STEP Act's earned time credits
• Highlighting the challenging issues of implementing the FIRST STEP Act's earned time credits
• Another account of continuing struggles with FIRST STEP Act implementation 

Via multiple rulings, Michigan Supreme Court places new restrictions on when juveniles can receive life sentences

The Michigan Supreme Court yesterday issued five(!) rulings addressing, and generally restricting, whether, when, and how juveniles convicted of homicide can receive sentences of life with or without parole.  Some of the most notable of the rulings are discussed in these press pieces that have headlines providing a basic summary:

"Mich. court bars automatic life sentences for 18-year-olds"

"State Supreme Court rules life with parole for juveniles who commit 2nd-degree murder violates MI Constitution"

"Michigan high court extends juvenile age for first-degree murder sentences; Ruling in Macomb County case also places burden on prosecutors for juvenile life sentences"

Here are links to all of the Michigan Supreme Court rulings, all of which are quite lengthy and divided:

154994, People v Robert Taylor 7/28/2022

162425, People v Montez Stovall 7/28/2022

162086, People v Kemo Parks 7/28/2022

157738 & 158695, People v Demariol Boykin, People v Tyler Tate 7/28/2022

Because Michigan has long had a significant juvenile lifer population, I suspect these rulings can and will lead to a notable number of resentencing in the state.  I would be eager to hear from Michigan experts about just how consequential these rulings might prove to be.

UPDATE:  Ashley Nellis of the Sentencing Project has this new tweet noting part of the likely impact of these state rulings:

Michigan #LWOP ban for 18 yr olds should ease the excessive sentences imposed on ~300 people sentenced for first and second degree murder.

Alabama completes execution despite opposition from victim's family

As reported in this AP piece, an "Alabama inmate convicted of killing his former girlfriend decades ago was executed Thursday night despite pleas from the victim’s family to spare his life." Here is more:

Joe Nathan James Jr. received a lethal injection at a south Alabama prison after the U.S. Supreme Court denied his request for a stay.

James was convicted and sentenced to death in the 1994 shooting death of Faith Hall, 26, in Birmingham. Hall’s daughters have said they would rather James serve life in prison, but Alabama Gov. Kay Ivey said Wednesday that she planned to let the execution proceed.

Prosecutors said James briefly dated Hall and he became obsessed after she rejected him, stalking and harassing her for months before killing her. On Aug. 15, 1994, after Hall had been out shopping with a friend, James forced his way inside the friend’s apartment, pulled a gun from his waistband and shot Hall three times, according to court documents...

The execution began a few minutes after 9 p.m. CDT following a nearly three-hour delay that the state did not immediately explain. James did not open his eyes or any show visible movements before the execution began. He did not move or speak when the warden asked if he had any final words. His breathing slowed until it was not visible and he was pronounced dead at 9:27 p.m.

Hall’s two daughters, who were 3 and 6 when their mother was killed, had said recently that they would rather James serve life in prison. The family members not attend the execution. “Today is a tragic day for our family. We are having to relive the hurt that this caused us many years ago,” the statement issued through state Rep. Juandalynn Givan’s office read. Givan was a friend of Hall’s.

“We hoped the state wouldn’t take a life simply because a life was taken and we have forgiven Mr. Joe Nathan James Jr. for his atrocities toward our family. ... We pray that God allows us to find healing after today and that one day our criminal justice system will listen to the cries of families like ours even if it goes against what the state wishes,” the family’s statement read.

Alabama Gov. Kay Ivey said she would not intervene. In a statement Thursday night, Ivey said she deeply considers the feelings of the victim’s family and loved ones, but “must always fulfill our responsibility to the law, to public safety and to justice.”... She said the execution sends an,” unmistakable message was sent that Alabama stands with victims of domestic violence.”

Prior related post:

• Victim's family opposing death sentence as Alabama prepares for execution next week 

"Death After Dobbs: Addressing the Viability of Capital Punishment for Abortion"

The title of this post is the title of this new paper authored by Melanie Kalmanson now available via SSRN. Here is its abstract:

Pre-Dobbs legislative efforts and states’ reactions in the immediate aftermath of Dobbs indicate the post-Dobbs reality that extreme conservative states will seek to criminalize abortion and impose extreme sentences for such crimes, up to and including death.  This Article addresses that reality.  Initially, this Article illustrates that abortion and capital punishment are like opposite sides of the same coin, and it is a handful of states leading the counter majoritarian efforts on both topics.  After outlining the position of each state in the nation that retains capital punishment on capital sentencing and abortion, the Article identifies the most extreme states on both issues, referenced as “Punitive States.”

Then, addressing the post-Dobbs reality that Punitive States could attempt to punish abortion by death, this Article shows that the current capital sentencing framework used across the country is incompatible with abortion offenses.  The aggravating factors and mitigating circumstances, if applied to abortion offenses, would not serve their constitutional purposes.  Therefore, this Article argues, capital sentences imposed under the current framework for abortion offenses would stand in violation of the Sixth and Eighth Amendments to the U.S. Constitution.  Further, this Article argues that attempts to write abortion-specific capital sentencing proceedings would prove to be acts in futility.  Thus, the Article ultimately concludes that death is not a viable punishment for abortion.

Latest CCJ accounting of crime trends shows good news and bad news for first half of 2022

The Council on Criminal Justice (CCJ) is continuing to do important and timely work on modern crime trends through an on-going series of reports under the heading "Pandemic, Social Unrest, and Crime in U.S. Cities."  The latest version of this report, titled "Pandemic, Social Unrest, and Crime in U.S. Cities: Mid-End 2021 Update," was just released this week and is flagged in this new CCJ press release.  Here is an excerpt:

Murders and gun assaults in major American cities fell slightly during the first half of 2022, while robberies and some property offenses posted double-digit increases, according to a new analysis of crime trends released today by the Council on Criminal Justice (CCJ).

Examining homicides in 23 cities that make data readily available, the study found that the number of murders in the first half of the year dipped by 2% compared to the first half of 2021 (a decrease of 54 homicides in those cities). Gun assaults also fell, by 6%, during the first six months of this year compared to the same timeframe last year, while overall aggravated assault counts rose 4%. Robbery jumped by 19%....

In other findings, trends in most property crimes reversed from the first two years of the pandemic.  Residential burglaries (+6%), nonresidential burglaries (+8%), and larcenies (+20%) all rose in the first half of 2022.  Motor vehicle thefts increased (+15%) but that trend began during the early months of the pandemic.  The number of drug offenses fell in the first half of 2022 (-7%), continuing earlier pandemic patterns.

This CCJ webpage provides a link to the full report and a bit full overview of the report's methodology and key findings.  One can find plenty of heartening and disheartening data in the graphs and other information in this full report.  The recent decline in homicides and gun assaults still leave us a long way from the lower pre-pandemic rates of these harmful crime.  But the recent uptick in various property crimes still leave us well below the higher pre-pandemic rates of these crimes.  And there is still an extraordinary diversity of of crime patterns in cities large and small throughout the US.

Great new Robina Institute report on "Examining Prison Releases in Response to COVID"

I was so pleased to see this week that the Robina Institute of Criminal Law and Criminal Justice has this great big new report titled "Examining Prison Releases in Response to COVID: Lessons Learned for Reducing the Effects of Mass Incarceration."  The full 86-page report is a must read and it so rich and intricate, I can only here excerpt a portion of the executive summary:

In response to the global pandemic in 2020, states and the federal government began to make non-routine releases from prison in order to reduce prison populations to allow for social distancing in prison facilities. This report is aimed at describing where such prison releases occurred, the legal mechanisms used to achieve these releases, and the factors within jurisdictions that made non-routine prison releases more or less likely to occur. We write this report, not to examine the national response to the pandemic, but to better understand when and how extraordinary measures may be used to effect prison release, and to determine whether there are lessons from this experience that can be applied to reducing the effects of mass incarceration.

Prevalence of Release:

• We estimate that a total of 80,658 people were released from prisons in 35 jurisdictions (34 states and the federal prison system) due to COVID-related policies, which was equivalent to about 5-1/2% of the total state and federal prison population in 2019.
• Most COVID-related releases were quite modest, amounting to the equivalent of less than 10% of the 2019 prison populations in 27 of the 35 jurisdictions in which releases occurred (Figure 2).

Legal Mechanisms:

• The legal mechanisms used most frequently to release people from prison during the pandemic were parole (11 jurisdictions), compassionate release (10 instances in 9 jurisdictions), home confinement (8 jurisdictions), commutation (7 jurisdictions), and good time or earned time credits (6 jurisdictions) (Figure 3).

Criteria for Release:

• Type of crime, COVID health risk, and time left to serve on one’s sentence were the criteria most frequently used — either alone or in combination — to determine eligibility for release due to COVID-related policies.
• Most release groups (39 of 73) required that a person had to have been convicted of a non-violent offense (Figure 4).
• COVID health risks — addressing both medical vulnerability and age — were used as criteria in 38 of 73 release groups (Figure 6).
• Most release groups (37 of 73) required that a person have a short time left to serve on their sentence (Figure 7). Though the amount of time varied from 30 days in New Mexico to 5 years in Kentucky, the average was 9 months, and the most frequently used time period was 12 months.

Political and Structural Influences:

• Gubernatorial leadership played a larger role in whether the jurisdictions made releases, with fewer jurisdictions with Republican leadership making releases. However, determinacy may have affected how many releases were possible, with indeterminate jurisdictions making larger releases than determinate jurisdictions regardless of political leadership.
• All but three Democratic-led jurisdictions (21 of 24) made COVID-related prison releases while only about half of Republic-led jurisdictions (14 of 27) did so (Table 4).
• Nearly all of the jurisdictions (7 of 8) with the largest COVID-related releases — those greater than 10% of the 2019 prison population — were indeterminate in structure.

New Sentencing Project paper explores "Voting in Jails: Advocacy Strategies to #UnlocktheVote"

The Sentencing Project just released a new briefing paper, available here, focused on voting from jails.  Here is how the short paper is described by The Sentencing Project:

Each new election cycle presents an opportunity to improve voter access for persons who are legally eligible to vote among the approximately 549,000 individuals in U.S. jails. The vast majority of persons in jails are eligible to vote because they are not currently serving a sentence for a felony conviction, but are incarcerated pretrial or sentenced to a misdemeanor offense.  However, incarcerated voters often experience significant barriers to voting because of misinformation, institutional bureaucracy that varies from one county/city to another, and deprioritization among government officials.

In most states there are underdeveloped practices for people incarcerated in prisons and jails to register or access absentee ballots and/or polling locations.  Many incarcerated residents cannot freely communicate via phone or email with election officials to monitor their voter registration or ballot applications.  Voter education for justice-impacted citizens is often limited and varies across states and results in too many Americans being left behind each election season.

Recent reforms and a growing civic infrastructure offer opportunities to strengthen voting access and ensure the franchise for every individual, regardless of their incarceration status.  This briefing paper provides cases that support expansion of voting access and can inform state and local advocacy efforts.

Recapping some notable Senate hearings on prisons and pot

Yesterday saw two notable hearing on Capitol Hill on criminal justice concerns, and here is some press coverage providing a partial summary of some of what transpired:

From the AP, "Prisons chief deflects blame for failures, angering senators":

With just days left in his tenure, the embattled director of the federal prison system faced a bipartisan onslaught Tuesday as he refused to accept responsibility for a culture of corruption and misconduct that has plagued his agency for years.

Bureau of Prisons Director Michael Carvajal, testifying before the Senate’s Permanent Subcommittee on Investigations, insisted he had been shielded from problems by his underlings — even though he’d been copied on emails, and some of the troubles were detailed in reports generated by the agency’s headquarters.

Carvajal, who resigned in January and is set to be replaced next week by Oregon’s state prison director Colette Peters, blamed the size and structure of the Bureau of Prisons for his ignorance on issues such as inmate suicides, sexual abuse, and the free flow of drugs, weapons and other contraband that has roiled some of the agency’s 122 facilities.

From Courthouse News Service, "Marijuana decriminalization takes center stage at Senate hearing":

[Senator Cory] Booker, chairman of the subcommittee and the only Black senator on the Senate Judiciary Committee, said that the federal criminalization of cannabis has “miserably failed” and has led to a “festering injustice” of selectively enforced drug laws disproportionately targeting Black and brown communities.  Nationally, according to a 2020 report by the ACLU, a Black person is nearly four times more likely to be arrested for possession of marijuana than a white person, despite the fact that marijuana use is equally common among racial groups. “Cannabis laws are unevenly enforced and devastate the lives of those most vulnerable,” Booker said during the Tuesday hearing....

Republican Senator Tom Cotton of Missouri hit out against the legislation, alleging it “would wipe clean the criminal records of illegal alien traffickers.”  “When these criminals trafficked marijuana, they broke the law. Whether some find that law unfashionable or even unfair, what they did was illegal,” Cotton said.

Weldon Angelos, who was sentenced to 55 years in prison for possessing several pounds of marijuana as well as a firearm and was later pardoned by former President Donald Trump, told the committee that expungement is a critical part of the legislation in order to address what he sees as a racially motivated ban on marijuana.  “Each arrest, prosecution, conviction and sentence makes the world a little bit smaller for those bearing the modern scarlet letter,” Angelos said, referring to what it’s like to live with a drug conviction....

Edward Jackson, chief of the Annapolis Police Department, testified in support of the bill, saying “there is nothing inherently violent” about cannabis.  Jackson asserted that decriminalization would both improve community trust in police and allow officers to focus on higher priority and violent crimes.  “I have spent far too much time arresting people for selling and possessing cannabis,” Jackson said.

Another notable lengthy sentence imposed on another Jan 6 rioter

This Washington Post article, headlined "D.C. man is 2nd to receive longest sentence in Jan. 6 police assault; Mark K. Ponder, 56, was handed a 63-month prison term for attacking police in the Capitol riot," reports on yet another notable sentencing in yet another January 6 riot case.  Here are excerpts:

A District man who assaulted three police officers and shattered a riot shield with a pole was sentenced to 63 months in prison Tuesday, matching the longest sentence handed down to a defendant convicted in the Jan. 6, 2021, Capitol attack.

Mark K. Ponder, 56, admitted to fighting with police in video-recorded confrontations between 2:31 p.m. and 2:48 p.m. that day in the area of the lower west terrace of the Capitol, which was overrun by a violent mob angered by President Donald Trump’s false claims that the 2020 election was stolen.  Ponder pleaded guilty April 22 to one count of assaulting an officer using a dangerous weapon.

“He was leading the charge,” U.S. District Judge Tanya S. Chutkan said, reciting at sentencing how Ponder smashed a thin pole against an officer’s riot shield so hard that the pole broke and the shield shattered, then found a thicker pole, colored red, white and blue, and resumed fighting.  “He wasn’t defending himself or anybody else. He was attempting to injure those officers, and we are lucky [someone] was not killed with the force Mr. Ponder is swinging those poles,” the judge said.

Chutkan in December handed down a similar 63-month sentence to Robert S. Palmer, 54, of Largo, Fla., who joined the front of the mob and hurled a fire extinguisher, plank and pole at police. Like Palmer, Ponder was “part of a group who, when they couldn’t get what they wanted, decided they were going to take it.  And they were going to take it with violence,” Chutkan said, saying they felt entitled “to attack law enforcement officers who were just doing their jobs.”...

Chutkan has emerged as the toughest sentencing judge in Capitol riot cases and exceeded prosecutors’ request to sentence Ponder to five years in prison, the low end of a federal advisory sentencing range of 57 to 71 months, in keeping with a plea deal.  Assistant U.S. Attorney Jocelyn P. Bond said a five-year term was justified by the seriousness of the offense as well as by Ponder’s return to the scene at 4 and 5 p.m. after he was tackled, handcuffed and then told to leave by police because officers needed to reinforce other parts of the Capitol complex....

Former U.S. Capitol Police sergeant Aquilino Gonell gave an in-person victim impact statement, telling the court as one of the officers struck by Ponder that there is “no doubt” he understood he was hitting police officers and “had the will and the intent to continue doing harm.”  The former sergeant said that he took early retirement as a result of the attack, that he was left with mental and physical injuries and that “my family has suffered, emotionally and financially.” Gonell told Chutkan that Ponder’s claim that he got “caught up” in the violence “is BS, and please don’t fall for it.” “He has changed my life,” said Gonell, a 16-year police veteran who served with the U.S. Army in Iraq.

Ponder asked for mercy, saying that while like Palmer he had a criminal history, he was a “changed person for the last 12 years” since his release from prison after convictions for bank and armed robbery. “I never meant for this to happen. I went there with the intention of going on a peaceful protest,” Ponder said. But he said that he “wasn’t thinking” after he was pepper-sprayed by police, and after the tension and anger in the crowd stoked by the former president erupted into “chaos.”...

Defense attorney Joseph R. Conte added that Ponder, a lifelong resident of the Washington area, overcame a crack cocaine addiction and before Jan. 6 had no contact with police since his incarceration. Ponder was the product of a broken home and suffered abuse as a child “as severe as any I’ve seen in my career,” Conte said, to which Chutkan responded, “I don’t disagree.” The judge waived any fine and said she would recommend that Ponder be allowed to serve his sentence near Washington, saying she hoped the defendant “will be able to get mental health treatment and counseling and be able to live the rest of his life without getting into trouble with law enforcement.”

Some of many prior related posts:

• "Many Capitol rioters unlikely to serve jail time" because some facing only misdemeanor convictions
• Noting the importance of charging policies and practices (and consistency?) as federal rioting charges get resolved from coast-to-coast
• Federal judges expressing some concern about lenient plea deals for some Capitol riot defendants
• Recent Jan 6 rioter sentencings showcase different judges with different sentencing perspectives
• Feds get 41 months for one high-profile January 6 rioter and seek 51 months for another
• Accounting for the first 50 sentences imposed on January 6 rioters 
• January 6 riot prosecutions continuing to spotlight realities of federal criminal justice case processing 
• Fascinating new AP accounting of all sentences given to January 6 rioters so far
• Politico provides new review of "Where Jan. 6 prosecutions stand, 18 months after the attack" 
• Feds seeking (above-guideline) sentence of 15 years for first Jan 6 defendant to be sentenced after trial convictions

US Sentencing Commission reports on "Older Offenders in the Federal System"

I received an email this morning spotlighting two interesting and important new data reports from the US Sentencing Commission. One of these new USSC reports is this 68-page effort titled "Older Offenders in the Federal System." Highlights are provided via this USSC webpage where one can find this "Summary" and "Key Findings":

Congress requires courts to consider several factors when determining the appropriate sentence to be imposed in federal cases, among them the “history and characteristics of the defendant.”  The sentencing guidelines also specifically authorize judges to consider an offender’s age when determining whether to depart from the federal sentencing guidelines.  In this report, the Commission presents information on relatively small number of offenders who were aged 50 or older at the time they were sentenced in the federal system.  In particular, the report examines older federal offenders who were sentenced in fiscal year 2021 and the crimes they committed, then assesses whether age was given a special consideration at sentencing.  This report specifically focuses on three issues that could impact the sentencing of older offenders: age and infirmity, life expectancy, and the risk of recidivism.

Older offenders commit fraud and sexual offenses at higher rates than all other offenders.

• Older offenders had roughly three times the rate of fraud offenses (17.8%) and a greater proportion of sex offenses (7.3%), compared to offenders under age 50 (6.4% and 4.1%, respectively).
• The rate of offenders committing sex offenses increased incrementally as the age of the offender increased. Offenders 70 and older committed sex offenses at nearly three times the rate (11.9%) of offenders under the age of 50 (4.1%).

Roughly 40 percent (40.7%) of older offenders had a physical disability prior to arrest for the instant offense.

• The rate of offenders with a disability increased incrementally as offenders' age at sentencing increased, so that roughly two-thirds (63.3%) of offenders 70 and older had a physical disability.

About one-third (31.2%) of older offenders had used drugs or misused prescription drugs in the year prior to arrest.

• Among older drug users, the most used substances were marijuana (32.4%) and methamphetamine (28.5%).

Older offenders have less extensive criminal histories, compared to all other federal offenders.

• More than half (52.5%) of older offenders were in Criminal History Category (CHC) I, the lowest criminal history category, compared to 37.5 percent of offenders under 50 years of age.

The overwhelming majority (80.1%) of older offenders were sentenced to prison. However, older offenders were also more likely to receive fines and alternative sentences, compared to offenders under age 50.

• The oldest offenders were the most likely to receive an alternative sentence or fine; roughly a third (31.3%) of offenders 65 through 69 and more than 40 percent (42.1%) of offenders 70 and older received an alternative sentence or fine.
• The oldest offenders were most likely to have received sentences that exceed life expectancy.

Nearly forty percent (38.6%) of offenders who were sentenced at 70 years of age or older received a sentence that exceeds their life expectancy, compared to 7.1 percent of offenders 65 through 69, and less than one percent of offenders under the age of 50.

In fiscal year 2021, a nearly equal proportion of older offenders (36.7%) were sentenced within the guideline range as received a below range variance (35.5%).

• The proportion of offenders receiving variances increased as an offender’s age at sentencing increased, with the oldest offenders being the most likely to receive a variance.
• Offenders 65 and older were nearly as likely to receive a variance (48.9%) as they were to receive a sentence under the Guidelines Manual (51.1%).

The recidivism rate of older offenders (21.3%) was less than half that of offenders under the age of 50 (53.4%).

• As offenders’ age at sentencing increased, recidivism rates decreased.
• Recidivism events for older offenders were less serious, compared to offenders under the age of 50.
• Older offenders take a longer time to recidivate, compared to their younger peers.

"Inmate Assistance Programs: Toward a Less Punitive and More Effective Criminal Justice System"

The title of this post is the title of this new paper now available via SSRN and authored by Murat C. Mungan, Erkmen Giray Aslim and Yijia Lu.  Here is its abstract:

High recidivism rates in the United States are a well-known and disturbing problem.  In this article, we explain how this problem can be mitigated in a cost-effective manner through reforms that make greater use of humane methods that help inmates rather than using more punitive measures.

We focus on Inmate Assistance Programs (IAPs) adopted by many states.  Some of these programs provide inmates with valuable skill sets to utilize upon their release while others are geared towards treating mental health and substance use disorder problems.  IAPs are likely to reduce recidivism by lowering ex-convicts’ need to resort to crime for income as well as reducing their likelihood of committing crimes impulsively under the influence of substances and mental disturbances.  However, those who oppose IAPs quickly point out that they involve significant costs, and may reduce the general deterrence effects of criminal punishment.  These objections are based on simple economic theories which suggest that IAPs can reduce general deterrence by providing inmates with benefits that partially off-set the expected costs of punishment.  Thus, whether IAPs can be used in a cost-effective manner is an empirical question, whose answer depends on the trade-off between its recidivism reducing effects on the one hand, and its financial and general deterrence costs on the other.

Here, we provide the first empirical analysis of IAPs’ general deterrence effects after explaining why these effects are likely to be insignificant under a more complete economic theory which accounts for knowledge hurdles; discounting of future outcomes; impulsive behavior; and loss aversion.  Our empirical analysis focuses on the impact of increased welfare benefits provided to certain inmates by states which chose to opt out of the 1996 federal ban under the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA).  This act prevented drug offenders from using welfare benefits and food stamps.  Consistent with our theoretical predictions, and using a difference-in-differences design, we find no statistically significant impact of states’ decisions to opt out of the PRWORA bans on the general deterrence of drug crimes.

Subsequently, we build on prior economic theories as well as our empirical observations to explain how the criminal justice reforms that use shorter imprisonment sentences and more frequent use of IAPs can reduce crimes as well as the costs of administering the criminal justice system.  The cost savings from reducing sentences for repeat offenders can be used to finance IAPs without significantly affecting deterrence due to the ineffectiveness of lengthy imprisonment sentences.  Thus, our analysis suggests IAPs can, in fact, be used in a cost-effective manner to reduce crime, and are valuable and humane tools that policy makers ought to consider as alternatives to punitive measures.

US Sentencing Commission reports on "Life Sentences in the Federal System"

I received an email this morning spotlighting two interesting and important new data reports from the US Sentencing Commission. One of these new USSC reports is this 40-page effort titled simply "Life Sentences in the Federal System." Highlights are provided via this USSC webpage where one can find this "Summary" and "Key Findings":

There are numerous federal criminal statutes authorizing a sentence of life as the maximum sentence allowed, such as for offenses involving drug trafficking, racketeering, and firearms crimes.  While convictions under these statutes are common, sentences of life imprisonment are rare, accounting for only a small proportion of all federal offenders sentenced. 

In February 2015, the Commission released Life Sentences in the Federal Criminal Justice System, examining the application of life sentences by federal courts during fiscal year 2013.  Using data from fiscal years 2016 through 2021, this report updates and augments the Commission’s previous findings by examining the offenses that led to the life sentences imprisonment imposed, along with offender demographics, criminal histories, and victim-related adjustments.

Offenders Sentenced to Life Imprisonment

• During fiscal years 2016 through 2021, there were 709 federal offenders sentenced to life imprisonment, which accounted for 0.2 percent of the total federal offender population.
• Almost half (48.7%) of offenders sentenced to life imprisonment were convicted of murder.
• Approximately half (47.5%) of offenders sentenced to life imprisonment were found to either have possessed a weapon in connection with their instant offense or were convicted under 18 U.S.C. § 924(c) — for possession or use of a firearm in furtherance of a crime of violence or drug trafficking crime.  This is almost five times the rate for offenders who were sentenced to less than life imprisonment (9.8%).
• Nearly one-third (31.4%) of offenders sentenced to life imprisonment received an aggravating role enhancement as an organizer, leader, manager, or supervisor in the offense, which is approximately eight times higher than those sentenced to less than life imprisonment (4.2%).
• Offenders sentenced to life imprisonment qualified as repeat and dangerous sex offenders in 11.8 percent of cases, in comparison to 0.6 percent of offenders sentenced to less than life imprisonment.
• The trial rate of offenders sentenced to life imprisonment was 75.6 percent, which was over thirty times higher than the 2.3 percent trial rate for all other federal offenders.

Offenders Sentenced to De Facto Life Imprisonment

• There were 799 offenders sentenced to de facto life imprisonment, which accounted for 0.2 percent of the total federal offender population.
• Half (50.6%) of offenders sentenced to de facto life imprisonment were convicted of sexual abuse.
• One-third (33.2%) of offenders sentenced to de facto life imprisonment were found to either have possessed a weapon in connection with their instant offense or were convicted under 18 U.S.C. § 924(c) — for possession or use of a firearm in furtherance of a crime of violence or drug trafficking crime.
• More than one-in-seven (15.4%) offenders sentenced to de facto life imprisonment received an aggravating role enhancement as an organizer, leader, manager, or supervisor in the offense.
• Offenders sentenced to de facto life imprisonment qualified as repeat and dangerous sex offenders in 39.4 percent of cases.
• The trial rate of offenders sentenced to de facto life imprisonment was 39.4 percent.

New NY Gov so far has ugly clemency record like last NY Gov

Roughly a year ago, anticipating the resignation of disgraced NY Gov Andrew Cuomo, I wondered in this post whether a change in New York leadership might lead to a better record on clemency.  As noted in that post, Cuomo had talked big about NY clemency efforts in 2015 and again in 2017, but he never thereafter delivered any significant results.  This new press piece, headlined "Governor Hochul’s ‘Rolling’ Clemency Process Has Set Just One Person Free," suggests that there is little reason for new clemency optimism with the new NY Gov.  Here is an excerpt:

In 2015, Cuomo announced the formation of the state’s executive clemency bureau to identify people who might be worthy of commutation. His announcement encouraged thousands serving decades-long sentences across the state to ask for clemency.  By the time Cuomo left office last year, the clemency bureau had received more than 10,000 applications ... [but] Cuomo issued only a total of 41 commutations in response.

When Kathy Hochul took office, those seeking clemency — and their loved ones — hoped that she would show more compassion than her predecessor.  On Christmas Eve 2021, Governor Hochul announced plans to devote additional staff resources into clemency and create an advisory panel.  She also declared that she would grant clemency on "a rolling basis" rather than only once each year.  That day she granted nine pardons and one commutation.  The singular commutation devastated many behind bars — and outraged family members and advocates — who had hoped for more.

Seven months later, Hochul has granted no other clemencies. Since becoming governor, her office has received 286 applications for commutations, and 82 for pardons.  At an event in mid-July, the governor told reporters that her office was overhauling the clemency system, including creating uniform applications for commutations and pardons, and instituting a process notifying applicants of their status.  She also said that she was still considering who to appoint for her clemency advisory board.  "It’s not an overnight process, but it’s one that’s going to be thoughtful, and one that will be long-term enduring," Hochul said.

The delays are frustrating advocates who have been working for years to push the governor’s office to fully exercise its executive power to grant more clemencies.  "There are fully vetted, powerful, robust applications, hundreds on her desk, so if she wanted to do it, they’re there," said Steve Zeidman, co-director of the CUNY Law School’s Defenders Clinic Second Look Project.  "We filed some going back four or five years that we supplement from time to time. It's not as if there aren't applications. It's just the will to do it."

Some prior related posts:

• Despite creating lots of clemency hope, NY Gov Cuomo delivers little clemency relief 
• "Cuomo's Clemency and Cruelty of False Hope"
• Might "big change" in New York leadership include a better record on clemency? 

US Senate hearing on "Decriminalizing Cannabis at the Federal Level: Necessary Steps to Address Past Harms"

The quoted portion of the title of this post is the title of this hearing scheduled for tomorrow afternoon by the Subcommittee on Criminal Justice and Counterterrorism of the US Senate Judiciary Committee.  Based on the topic alone, this hearing seemed worth checking out.  But the folks at Marijuana Moment already have the list of planned witnesses, and now I am even more eager to have an eye on this event.  Here are the details (with links from the original):

Senators on a key Judiciary subcommittee are set to hold a hearing on marijuana reform on Tuesday — and the witnesses include former federal cannabis prisoner Weldon Angelos and anti-marijuana proselytizer Alex Berenson.

The Judiciary Subcommittee on Criminal Justice and Counterterrorism, chaired by Sen. Cory Booker (D-NJ), has five witnesses scheduled to testify, according to a list obtained by Marijuana Moment.  The list has not been formally announced by the panel yet, and representatives of the chair and ranking member did not immediately respond to emails from Marijuana Moment.

Here’s the list of witnesses for the hearing, titled “Decriminalizing Cannabis at the Federal Level: Necessary Steps to Address Past Harms.”

MAJORITY WITNESSES:

Malik Burnett, a pro-legalization physician who formerly worked for the Drug Policy Alliance (DPA) and previously testified in favor of reform before the U.S. House of Representatives. He currently serves as the medical director of harm reduction services at the Maryland Department of Health.

Weldon Angelos, a former federal marijuana prisoner who received a presidential pardon under the Trump administration and has continued to push for clemency for other people with federal cannabis convictions through his organization The Weldon Project.

Edward Jackson, chief of police at the Annapolis Police Department and a speaker at the pro-reform group Law Enforcement Action Partnership (LEAP).

MINORITY WITNESSES:

Steve Cook, former federal prosecutor who previously served as president of the National Association of Assistant United States Attorneys. Known as a drug warrior who supports taking a carceral approach in criminal justice, Cook was appointed by then-Attorney General Jeff Sessions to work in DOJ as associate deputy attorney general and led a marijuana review panel for the department ahead of the Trump administration’s rescission of Obama-era cannabis enforcement memos.

Alex Berenson, former New York Times reporter who has faced ample criticism over his questionable research linking marijuana use to serious mental illness and violent crime, and who was at one point banned from Twitter for claims he made about COVID-19 vaccines.

The choice of witnesses offers a preview of the kind of debate that the majority and minority will take up at the hearing.  And the fact that Berenson was picked by Senate Republicans to go before the panel signals that there will be diametrically opposed perspectives represented at the meeting.  More specifically, it hints that there will be drama, as Berenson is not a person who’s known for subtlety and has became notorious on social media for offering contrarian takes on current events, particularly as they concern marijuana and COVID.

I share the view that having Alex Berenson as one of the witnesses here can and will add drama to this hearing, though I think all of the scheduled witnesses could be described as "headliners."  I am hopeful we will get some written statements from these witnesses before the actual hearing, and it will be interesting to see how both questions and answered are presented at the live event.  Interesting times.

Spotlighting the "unheard-of decline in Black incarceration"

Keith Humphreys and Ekow Yankah have this notable new Chicago Tribune commentary headlined "The unheard-of decline in Black incarceration." This piece should be read in full, and here are excerpts:

Two years after George Floyd’s murder, protest-filled streets and countless invocations of a “racial reckoning,” public backlash and boredom have led many people to despair that the criminal justice system will never change.  But that dispiriting illusion is false, maybe even dangerous.  After generations of soul-crushing mass incarceration, African Americans have cause for hope: The Black imprisonment rate is at a 33-year low, having fallen to about half its level of a generation ago. But an inadvertent collaboration of ideological adversaries makes the decline of Black incarceration unspeakable.

On the one hand, the good news is hidden by racism. The narrative of inherent Black violence and immorality has been used to terrify white people and justify the oppression of Black people for centuries. As a Media Matters study demonstrated, if a criminal suspect is Black, the case is more likely to be covered on television news. Social media platforms greatly magnify the distortion. Within the narrative of inherent Black criminality, the decline in Black incarceration seems an impossibility: Black people must be in prison because that is where they belong. And even the racists who are aware of the decline in Black imprisonment may decide to keep silent — the truth is less important than the social or political gain offered by continual whispers of the Black boogeyman.

Anti-racist advocates oppose this narrative, emphasizing instead the structural forces that use fear of Black Americans to feed the fire of mass incarceration. But anti-racists may share racists’ unawareness or discomfort with declining Black incarceration. Black hopes have been dashed too many times to trust a change in their oppressor’s character. Other anti-racists are aware of the change but have fears of acknowledging it. White concern for racial justice has a history of evaporating. Two years after police murdered George Floyd, it is disheartening to see how quickly earnest proclamations of a “racial reckoning” withered into a commitment to abolish a pancake mix logo.

To be sure, the disproportionate incarceration of Black Americans remains a national tragedy that cannot be consigned to history if white people become complacent. Reformers understandably fear that focusing on the decline in Black incarceration (or positive comparison with white people) will further slow the dismantling of a system that still destroys countless lives. Still, assuming American racism is intractable creates a narrative that also cannot account for the decline in Black imprisonment.

Despite their competing premises, the racist and anti-racist narratives accidentally reinforce each other. They share a code of silence about Black de-incarceration that misleads Americans about the current racial realities of mass incarceration. In the absence of corrective information from journalists and activists, most people assume incorrectly that prisons continue to gobble up the lives of an increasing number of African Americans.

No matter our politics, we should care about what is true — the Black imprisonment rate has been dropping for a generation.  Hundreds of thousands of African Americans who would have been behind bars are now free.  Callous actors will claim this is too many, and anti-racists will argue it’s too few.  But would anyone argue with a straight face that such a dramatic change in the fate of hundreds of thousands of people warrants no discussion at all?...

In a country where so many — particularly people of color — long to see images of Black excellence celebrated, stories of Black progress should be highlighted rather than buried. Without ever forgetting the work still to be done, Americans of all races should be told of the progress that has and can be won.

I am always glad to see important data about modern incarceration emphasized, though I think op-eds could be written about all sorts of data realities going largely ignored or being misunderstood in many era.  There was precious little public discourse about mass increases in US incarceration for decades, and still very few talk about the remarkable increases and decreases in federal incarceration (and caseloads) over the last 25 years.  Though there is often discourse around private prisons, relatively few highlight what a small part they play in the national incarceration map.  Demographics such as gender and age and class (often combining with racial dynamics) can vary dramatically in incarcerated populations depending on crimes and jurisdictions, and dynamic recent modern changes in urban and rural incarceration rates have also often been overlooked or underexamined.  And, of course, data lags and other factors make it hard to even know how profoundly the COVID pandemic has reshaped our incarceration levels or whether any changes brought by COVID may prove enduring.

Put slightly differently, in this context, I do not see all that many thought-out "narratives" seeking to hide or obscure key data.  Instead, I see many advocates and media with relatively little interest in data combining with a general paucity of clear and effective data resources.  That said, given the considerable attention given to racial issues in broader criminal justice narratives and elsewhere in policy debates, I am still eager to praise Professors Humphreys and Yankah for this important commentary.  But, for me, it is just one small part of a much bigger story of political rhetoric often having little interest in complicated policy data.

A few of many older and newer related prior posts:

• Notable data on racial and gender dynamics of recent changes in incarceration rates (from 2016)
• Some surprising racial realities to discover when taking a deep dive into modern mass incarceration data (from 2016)
• "Racial Disparity in U.S. Imprisonment Across States and over Time" (from 2017)
• Looking at the changing demographics of modern mass incarceration (from 2017)
• Examining gender realities and disparities in modern federal sentencing (from 2018)
• "Mass Incarceration: New Jim Crow, Class War, or Both?" (from 2018)
• Council on Criminal Justice releases new report on "Trends in Correctional Control by Race and Sex"  (from 2019)
• "A Comparison of the Female and Male Racial Disparities in Imprisonment" (from 2020)
• "The Color of Justice: Racial and Ethnic Disparity in State Prisons" (from 2021)
• New Sentencing Project fact sheet highlights rise (and recent declines) in the incarceration of women and girls (from 2022)

Reviewing another round of great new Inquest essays

I have been making a habit of spotlighting some of the many great pieces regularly posted at Inquest (see recent prior posts here and here and here).  Inquest, "a decarceral brainstorm," keeps churning out lots of new must-read essays, and I continue to struggle to keep up with all the great content.  Here are some recent pieces worth checking out:

By Erin Collins, "The Evidence-Based Trap: Data-driven approaches to reform can reinforce aspects of a system that’s rotten to the core."

By Dan Berger, "Changing Everything: Beyond electing progressive prosecutors, decarceration requires an ambitious, multifaceted struggle at all levels of governance."

By Nebil Husayn, "Juneteenth and Black Liberation: Our government's history of oppression compels us to free those Black revolutionaries aging in our prisons."

By Jessica T. Simes & Jaquelyn L. Jahn, "Policing Health: The impact of Medicaid expansion suggests that keeping people healthy also keeps them from the reach of the criminal legal system."