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November 5, 2022

Rounding up recent disheartening stories in incarceration nation

In recent days, I have seen a number of notable stories and commentaries focused on various discouraging incarceration realities in US prisons and jails:

From The Marshall Project, "Why So Many Jails Are in a ‘State of Complete Meltdown’"

From NBC News, "Tech glitch botches federal prisons' rollout of update to Trump-era First Step Act"

From the New York Post, "Rikers Island detainee is 18th person to die in NYC’s prison system in 2022"

From the New York Times, "‘Dying Inside’: Chaos and Cruelty In Louisiana Juvenile Detention"

From the Omaha World Herald, "‘Waiting on death’: Nebraska prisoners are getting older, and it’s costing taxpayers"

From PennLive, "Sick people in Pa. jails are suffering, dying: ‘The Constitution allows for medical neglect’"

From the Reno Gazette-Journal, "Inmate deaths, drug overdoses on rise at Washoe County Jail"

From Washington Monthly, "Do Prisons Need to Be Hellholes?"

From WSB-TV, "Reality star Joe Exotic says zoo has better living conditions than Atlanta Federal Penitentiary"

November 5, 2022 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

November 4, 2022

Oklahoma Gov extends execution stay for Richard Glossip as courts still consider innocence claim

As reported in this AP piece, "Oklahoma Gov. Kevin Stitt granted another temporary reprieve to death row inmate Richard Glossip, pushing his scheduled execution back until February 2023 so that an appeals court has more time to consider his claim of innocence."  Here is more:

Stitt, who is locked in a tough reelection contest, issued an executive order on Wednesday that delays Glossip’s execution, which was scheduled for Nov. 21. Stitt’s office didn’t immediately respond to a request for comment. A clemency hearing for Glossip that was scheduled before the Oklahoma Pardon and Parole Board next week also will be delayed.

Glossip received the death penalty for the 1997 murder-for-hire killing of his boss, motel owner Barry Van Treese. Prosecutors acknowledge Glossip did not kill Van Treese, but maintain that he paid the hotel maintenance man, Justin Sneed, to do it. Sneed, who received a life sentence but was spared the death penalty, was a key witness in two separate trials in which Glossip was convicted.

Attorney General John O’Connor said in a statement that he respects the governor’s decision but remains confident in Glossip’s guilt. “After 25 years, justice is still on hold for Barry Van Treese and his family,” O’Connor said. “Mr. Van Treese was in a room of the motel he owned when he was brutally murdered with a baseball bat by Justin Sneed, an individual Richard Glossip hired to work at the motel and later enlisted to commit the murder. Two different juries found Glossip guilty of murder for hire.”...

Glossip asked the Oklahoma Court of Criminal Appeals for a new evidentiary hearing following the release of an independent investigation by Houston law firm Reed Smith that raised new questions about his guilt. The firm’s report did not find any definitive proof of Glossip’s innocence, but raised concerns about lost or destroyed evidence and a detective asking leading questions to Sneed to implicate Glossip in the slaying....

A bipartisan group of 62 Oklahoma legislators, led by Republican state Rep. Kevin McDugle, have signed a request that a new evidentiary hearing be granted. Glossip, now 59, has long maintained his innocence.

He has been scheduled to be executed three separate times, only to be spared shortly before the sentence was set to be carried out. He was just hours from being executed in September 2015 when prison officials realized they had received the wrong lethal drug, a mix-up that helped prompt a nearly seven-year moratorium on the death penalty in Oklahoma.

November 4, 2022 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

November 3, 2022

Is the US "on the verge of a new wave of mass incarceration"?

The question in the title of this post is prompted by this notable new Time commentary by Udi Ofer given the headline "Politicians' Tough-on-Crime Messaging Could Have Devastating Consequences."  Here are some extended excerpts from a piece that merits reading in full:

In the majority of hotly contested 2022 midterm races across the country, tough-on-crime rhetoric is at the top of the agenda.  Close to 60% of Republican spending on campaign ads since September has been on the topic of crime, with tens of thousands of ads running on the issue, and Democrats have responded with their own $36 million war chest.  Not since the height of America’s mass incarceration era has the nation seen law and order politics play such an outsized role in candidate races up and down the ballot.  The outcome could put the country in danger of entering a new era of more mass incarceration....

While Republicans are leading this charge, both parties are playing with fire, as the political rhetoric being deployed this election season has the potential to trigger a new surge in incarceration, as occurred following previous election cycles that starred tough-on-crime rhetoric.  Between 1973-2009, the nation saw an exponential growth in incarceration, from approximately 200,000 people in prisons and jails in 1973 to 2.2 million by 2009, making the U.S. the largest incarcerator in the world, with a rate 5 to 10 times higher than Western Europe and other democracies.  Hundreds of new laws and practices passed at the local, state, and federal levels, including new mandatory minimums with harsh sentences, more cash bail and pretrial detention, and more aggressive prosecutorial and policing practices like stop-and-frisk....

Along with mass incarceration came extreme racial inequities that spread well beyond the carceral system.  A Black boy born in the 2000s had a 1 in 3 chance of ending up incarcerated, compared to a 1 in 17 chance for a white boy.  Mass incarceration has contributed significantly to the racial achievement gap, poorer health outcomes in Black communities, and economic hardship for Black families....

This crisis in mass incarceration, which only recently began to dip, has roots that run deep in efforts to politicize and racialize crime.  Mass incarceration has been fueled by moments like the one we are living in today, where following years of gains on civil rights, a backlash ensues and crime is conflated with reforms and civil rights protests....

It wasn’t until the past 10 years that a bipartisan movement for criminal justice reform formed, pushing for an alternative approach.  This movement by Democrats and Republicans has worked together in states across the country to pass bipartisan reforms, such as sentencing reform in Louisiana and Oklahoma, bail reform in New Jersey and Colorado, second chance laws in Georgia, Michigan, Pennsylvania and Utah, drug law reform in Oregon and Rhode Island, and much more.  The nationwide prison population began to drop to 1.2 million, and the U.S. moved from first to fifth place in the global ranking of imprisonment rates, right between Cuba and Panama.  Families were reunited with their loved ones, and some of the states that have seen the largest decrease in incarceration are also some of the safest states in the nation, like New Jersey.

But today, just as nationwide incarceration rates were beginning to slowly drop, public anxiety over crime is being turned into a wedge issue between the two political parties to undermine progress made on civil rights and criminal justice reform.  Bail reform, police reform, parole reform, and sentencing reform are wrongfully being blamed for a rise in crime....

Candidates for office can resist the tough-on-crime impulse that has grown so common since Barry Goldwater’s 1964 run for office. They can provide a new vision for safety, one that many communities have been calling for — one the emphasizes prevention and investments in public health, schools, jobs, housing and community support structures, and relegates incarceration to the last possible option, after all other intervention efforts have failed.

In fact, research conducted by organizations like Vera Action and HIT Strategies has found that while voters care deeply about crime, they want more than the one-dimensional tough-on-crime message being delivered.  Candidates benefit by articulating a vision that recognizes that public safety is achieved when we provide people with the resources they need to thrive, like earning a living wage, receiving a good education, and having stable housing.  Voters understand that police shouldn’t be the ones charged with solving every social problem, from kids skipping school to mental health needs to homelessness. Instead, voters are seeking long term solutions rooted in prevention, like a good education and a good job.

So far, too few politicians on both the right and left are moving away from the reflexive tough-on-crime rhetoric that has proven to be so devastating in the past.  It won’t be clear until after the midterms how much this rhetoric has impacted voter choices, but the damage may have already been done.  Unless more politicians change course, the U.S. is on the verge of a new wave of mass incarceration — as history repeats itself.

There is much to commend in this piece (including in parts I did not reprint here), and I think there is a very sound basis to expect and fear that heightened concerns about crime and the new wave of political rhetoric being deployed this election season likely will slow or even impede various parts of the agenda in the bipartisan movement for criminal justice reform.  One obvious "for example" here is the now-stalled effort to equalize crack and powder cocaine sentences at the federal level.  The US House of Representatives voted overwhelmingly in Sept 2021, by a tally of 361-66, to pass the EQUAL Act to equalize powder and crack cocaine sentences, but concerns about "soft-on-crime" attacks have seemingly kept the Senate from moving forward.  

But slowing down on-going reform efforts is a long way from "a new wave of mass incarceration."  As this commentary suggests, both voters and their representatives now understand the importance of a variety of policy responses to crime concerns.  More broadly, we now generally see a far more nuanced discussion of mandatory minimum sentences, drug policy issues and even the death penalty than we did a generation ago.  For example, though a number of GOP Senators have now come out against the EQUAL Act, their competing bill still involves reducing crack sentences a good deal (while also raising cocaine sentences a bit).  And at least one GOP Senator, Mike Lee, is still actively campaigning on his bipartisan criminal justice reform work in the FIRST STEP Act.  In other words, while we may only see a "one-dimensional tough-on-crime message" in 30-second TV ads, I sense most policy-makers still recognize the need for so-called "smart-on-crime" reform efforts.

Ultimately, a lot of political and policy forces that developed over decades provided the infrastructure for modern mass incarceration, and a lot of countering political and policy forces also developing over decades have contributed to the (slow) decline in incarceration rates in recent years.  I do not think one political cycle alone will dramatically change all the trends and dynamics that have brought us to this somewhat fraught moment.  But I do think, as this commentary stresses in many ways, there are plenty of political and policy lessons to learn from both older and more recent developments.  Interesting times.

November 3, 2022 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (4)

Some more criminal justice policy and politics as 2022 mid-term election approaches

There are any number of commentaries about crime and punishment issues in this mid-term election cycle as we close in on a final vote.  Here a few pieces that caught my eye recently:

From The Marshall Project, "Why Millions of Americans Will Be Left Out of the Midterms"

From the Niskanen Center, "Voters care about crime. Here’s what lawmakers should do about it."

From Stateline, "The Push to Decriminalize Marijuana Possession Continues, Town by Town"

From the Vera Institute, "How Mass Incarceration Shapes Our Elections"

From Vox, "The reason Republican attacks on crime are so potent"

From the Washington Examiner, "Democrats struggle against Republicans on crime issue"

UPDATE: I just saw this notable new American Prospect piece headlined "How Democrats Mishandled Crime: The most effective issue for Republicans in this midterm is a result of Democratic elites failing to understand what their diverse base of working-class voters wants."

November 3, 2022 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

November 2, 2022

After victims's statements, Parkland shooter formally sentenced to life without parole

As detailed in this NBC News piece, headlined "Parkland school shooter sentenced to life in prison without parole after emotional victims’ statements," a high-profile sentencing was completed today in Florida. Here are some details:

Following dramatic statements from victims and victims' families, a Florida judge formally sentenced Parkland school shooter Nikolas Cruz to life in prison without parole Wednesday for the 2018 campus massacre that killed 14 students and three staff members.

Circuit Judge Elizabeth Scherer followed the jury’s recommendation to spare the 24-year-old the death penalty, instead sentencing him to a lifetime behind bars. Last month, in a 9-3 vote, a jury leaned toward sending Cruz to death row, but Florida law dictates that anything less than a unanimous vote automatically shifts the sentence to life without parole.

Prosecutors had sought the death penalty, while the defense had asked for life in prison. The jury’s decision on Oct. 13 shook family members of victims who were visibly distraught by the verdict....

Ilan Alhadeff, father of Alyssa Alhadeff, 14, who was killed in the shooting, said Wednesday during his victim impact statement, Cruz’s inevitable life sentence brings him little satisfaction. He deserved death, Alhadeff said.

“Let me show how angry and frustrated I am with the judicial system. After 4 ½ grueling years, a failed judicial system did not hand down a death sentence to the murderer of my daughter and 16 others,” he said. “Do I see this as accountability? Absolutely not. Do we now have closure? Let me be clear, absolutely not. What I see is that the system values this animal’s life over the 17 now dead. Worse, we sent a message to the next killer out there that the death penalty would not be applied to mass killing. This is wrong and needs to be fixed immediately.”

Sam Fuentes was shot in the leg and struck in the face with shrapnel during the massacre. She said Wednesday in court she watched Cruz kill two of her friends. “You shot me in the leg. If you looked me in the face, like I’m looking at you right now, you would see the scars on it from the hot shrapnel that was lodged into it. Do you remember after you sprayed my classroom with bullets, standing in the door, peering in to see the work you’ve done? Do you remember my little battered, bloody face looking back at you? I could have sworn we locked eyes,” she said....

Cruz wore a mask for the first part of the hearing, until Jennifer Guttenberg, the mother of victim Jaime Guttenberg, admonished the shooter during her victim impact statement. “You shouldn’t be sitting there with a mask on your face. It’s disrespectful to be hiding your expressions under your mask when we as the families are sitting here talking to you,” she told him.

Linda Beigel Schulman, mother of Scott Beigel, who taught geography at the school and coached cross country, said her son saved students' lives before the gunman took his. Beigel Schulman said Wednesday that Cruz has "prison justice" ahead of him. "You will spend the rest of your miserable life having to look over your shoulder worried about every single minute of your day, of your life, and scared out of your mind, fearful for someone to take you out."

On Tuesday, other survivors of the shooting and victims’ loved ones had the chance to deliver impact statements before the sentence was formally announced. Stacey Lippel, a teacher at Parkland who was shot and survived, told Cruz: “You don’t know me but you tried to kill me.” “I will have a scar on my arm and the memory of you pointing your gun at me ingrained in my brain forever,” she said before the court, looking Cruz in the eyes.

Some prior related posts:

November 2, 2022 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)

"Constitutional Limits on the Imposition and Revocation of Probation, Parole, and Supervised Release After Haymond"

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

In its Apprendi line of cases, the Supreme Court has held that any fact found at sentencing (other than prior conviction) that aggravates the punishment range otherwise authorized by the conviction is an “element” that must be proved beyond a reasonable doubt to a jury.  Whether Apprendi controls factfinding for the imposition and revocation of probation, parole, and supervised release is critically important.  Seven of ten adults under correctional control in the United States are serving terms of state probation and post-confinement supervision, and roughly half of all prison admissions result from revocations of such terms.  But scholars have yet to confront the effect of the Court’s Apprendi rulings on the regulation of conditional release in the states.  This Article takes on that project.

The Article makes three contributions.  First, it explains why and how the Apprendi doctrine applies to judicial findings at initial sentencing that either lengthen the term of conditional release an offender must serve or mandate incarceration instead of conditional release.  State courts continue to divide on these questions.

Second, regarding factfinding at the revocation stage, the Article tackles the many questions left open by the Court’s only effort to consider Apprendi in the revocation context — United States v. Haymond.  The Article defends two due process analyses, derived from past precedent and Justice Breyer’s controlling concurrence in Haymond, that are better suited than the Apprendi doctrine to protect against legislative overreach in the revocation context. Scholarship discussing Haymond has barely mentioned Justice Breyer’s analysis.  This Article gives his controlling concurrence the attention it deserves.  Combined, these due process analyses provide a sound middle ground between the rigid application of Apprendi’s rules to conditional release and the limitless use of revocation to punish new criminal conduct.

Third, the Article applies these  analyses to state statutes governing the imposition and revocation of probation and post-confinement supervision. This long-overdue state-centered focus provides needed guidance for policymakers designing conditional release policies that reserve more punitive sentences for more egregious cases.

November 2, 2022 in Procedure and Proof at Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

November 1, 2022

Federal judge orders briefing on whether to appoint historian to resolve challenge to federal felon gun possession ban after Bruen

This new CNN article, headlined "Federal judge blasts the Supreme Court for its Second Amendment opinion," alerted me to a notable new opinion emerging from new challenges to federal felon in possession laws in the wake of the Supreme Court's new Second Amendment standards set forth in Bruen.  Here are the basics from the press piece:

A federal judge based in Mississippi has released a scorching order expressing frustration with the Supreme Court’s Second Amendment opinion issued last summer and ordered the Justice Department to brief him on whether he needs to appoint an historian to help him decipher the landmark opinion.

The opinion in New York State Rifle & Pistol Association v. Bruen changed the framework judges must use to review gun regulations. Going forward, Justice Clarence Thomas said that a gun law could only be justified if it is “consistent with this Nation’s historical tradition of firearm regulation.”

Judge Carlton Reeves — who is considering a case concerning a federal statute prohibiting felons from possessing firearms — said he is not sure how to proceed.  “This court is not a trained historian,” Reeves wrote in an order released last week.  “The justices of the Supreme Court, as distinguished as they may be, are not trained historians,” he continued. “And we are not experts in what white, wealthy and male property owners thought about firearms regulation in 1791,” he said.  The Bruen decision, he said, requires him to “play historian in the name of constitutional adjudication.”

Reeves, who sits on the United States District Court for the Southern District of Mississippi, ordered the parties, including the Justice Department, to brief him on whether he should appoint a historian within 30 days.  “Not wanting to itself cherry-pick the history, the Court now asks the parties whether it should appoint a historian to serve as a consulting expert in this matter,” he said.

The challenger to the felon possession law, Jesse Bullock, says the regulation cannot withstand the Supreme Court’s latest decision interpreting the Second Amendment. “Founding era legislatures did not strip felons of the right to bear arms simply because of their status as felons,” Bullock argued.  

The full six-page order in US v. Bullock is available at this link. Here are a few passages:

Bruen instructs courts to undertake a comprehensive review of history to determine if Second Amendment restrictions are “consistent with the Nation’s historical tradition of firearm regulation.” 142 S. Ct. at 2130. In fact, Justice Alito commends the majority for its “exhaustive historical survey.” Id. at 2157 (Alito, J., concurring).  

But historical consensus on this issue is elusive.  As the Seventh Circuit put it, “scholars continue to debate the evidence of historical precedent for prohibiting criminals from carrying arms.”  United States v. Yancey, 621 F.3d 681, 684 (7th Cir. 2010) (collecting authorities); see also United States v. Skoien, 614 F.3d 638, 650 (7th Cir. 2010) (Sykes, J., dissenting) (“scholars disagree about the extent to which felons — let alone misdemeanants — were considered excluded from the right to bear arms during the founding era.”)....

This Court is not a trained historian.  The Justices of the Supreme Court, distinguished as they may be, are not trained historians. We lack both the methodological and substantive knowledge that historians possess. The sifting of evidence that judges perform is different than the sifting of sources and methodologies that historians perform.  See id. at 2177 (Breyer, J., dissenting) (“Courts are, after all, staffed by lawyers, not historians.”).  And we are not experts in what white, wealthy, and male property owners thought about firearms regulation in 1791.  Yet we are now expected to play historian in the name of constitutional adjudication....

Not wanting to itself cherry-pick the history, the Court now asks the parties whether it should appoint a historian to serve as a consulting expert in this matter.  See Fed. R. Evid. 706.  This Court is acquainted with the historical record only as it is filtered through decisions of the Supreme Court and the Courts of Appeals.  An expert may help the Court identify and sift through authoritative sources on founding‐era firearms restrictions. 

As many of the readers of this blog surely know, the author of this interesting order is not just a federal district judge, he is also the new Chair of the US Sentencing Commission. Interesting times.

Prior recent related posts:

November 1, 2022 in Procedure and Proof at Sentencing, Second Amendment issues, Who Sentences | Permalink | Comments (7)

Interesting accounting of what we know about violent crime and voter concerns a week before Election Day 2022

In the first part of most election years, I tend to enjoy seeing early political commercials and commentary to get a flavor for how various policy issues are being framed and engaged by candidates and advocacy groups.  But, once we reach the homestretch in a major election year, I often start counting down the days to the election while growing ever weary of the non-stop political ads and chatter.  So, I am quite pleased we are finally just a week from Election Day 2022, and I am even more pleased about this interesting and timely new Pew Research Center piece titled "Violent crime is a key midterm voting issue, but what does the data say?".  Here is the start and numbered items from the piece (links from the original):

Political candidates around the United States have released thousands of ads focusing on violent crime this year, and most registered voters see the issue as very important in the Nov. 8 midterm elections. But official statistics from the federal government paint a complicated picture when it comes to recent changes in the U.S. violent crime rate.

With Election Day approaching, here’s a closer look at voter attitudes about violent crime, as well as an analysis of the nation’s violent crime rate itself. All findings are drawn from Center surveys and the federal government’s two primary measures of crime: a large annual survey from the Bureau of Justice Statistics (BJS) and an annual study of local police data from the Federal Bureau of Investigation (FBI).

1. Around six-in-ten registered voters (61%) say violent crime is very important when making their decision about who to vote for in this year’s congressional elections....

2. Republican voters are much more likely than Democratic voters to see violent crime as a key voting issue this year....

3. Older voters are far more likely than younger ones to see violent crime as a key election issue....

4. Black voters are particularly likely to say violent crime is a very important midterm issue....

5. Annual government surveys from the Bureau of Justice Statistics show no recent increase in the U.S. violent crime rate....

6. The FBI also estimates that there was no increase in the violent crime rate in 2021....

7. While the total U.S. violent crime rate does not appear to have increased recently, the most serious form of violent crime – murder – has risen significantly during the pandemic....

8. There are many reasons why voters might be concerned about violent crime, even if official statistics do not show an increase in the nation’s total violent crime rate.

November 1, 2022 in Elections and sentencing issues in political debates, National and State Crime Data | Permalink | Comments (0)

"Ohio's Not So Uncommon Punishment: Hold Your Sign in Shame"

The title of this post is the title of this new paper recently posted to SSRN and authored by Jon Michael Hilsheimer, a student at The Ohio State University Moritz College of Law.  This paper is part of a student paper series supported by OSU's Drug Enforcement and Policy Center, and here is its abstract:

Some first-year criminal law courses briefly discuss alternative punishments under the header of “scarlet letter” or “shaming” punishments.  Beyond a brief discussion in class and a case or two in the casebook, students are left without a clear picture of how frequently judges engage with these forms of alternative sentencing.  This paper provides an overview of shaming punishments in Ohio.  While it may not account for all instances of shaming punishments that have been administered, or a complete list of the judges that engage with the practice, this paper shows that the practice is not an infrequent occurrence in Ohio.  After providing a brief overview of the landscape of these punishments, this paper surveys how appellate level courts in other jurisdictions have handled challenges to shaming penalties.  The piece then concludes by applying the majority approach using Ohio’s statutory code and posits that there are insufficient statutory grounds for the current practice.

November 1, 2022 in Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (1)

October 31, 2022

Previewing SCOTUS argument on federal statutory collateral review mechanisms

Though the Supreme Court's oral argument today in the affirmative action cases is understandably garnering lots of attention, criminal justice fans should not forget that tomorrow brings oral argument in a big interesting federal CJ case with Jones v. HendrixThis SCOTUSblog preview, titled "On the narrow road to challenge a federal conviction, when is a vehicle 'inadequate'?," provides a detailed preview that starts this way:

On Tuesday, the justices will hear argument in Jones v. Hendrix, the latest in a string of cases that raise profound questions about the rights of prisoners who claim to be innocent to challenge their convictions. Last year, the court restricted the ability of state prisoners to develop new evidence to support claims that their attorneys failed to investigate leads that could have shown they were factually innocent.  Jones involves a federal prisoner who is legally innocent — the conduct a jury found he committed isn’t a crime.  But should that fact relieve him from his 27-year prison sentence?  In the Supreme Court’s habeas corpus jurisprudence, the answer is never simple.  Indeed, the case comes before the court as a three-way split: the petitioner, Marcus DeAngelo Jones, challenged his conviction in a federal habeas petition under 28 U.S.C. § 2241, arguing that the “motion to vacate” his conviction provided by 28 U.S.C. § 2255 is inadequate to afford him relief.  The U.S. Court of Appeals for the 8th Circuit ruled he cannot pursue a petition because he already filed a motion under Section 2255, which bars him from filing a successive petition, and he should have raised his claim earlier.  The federal government — which prosecuted Jones — says the 8th Circuit got the reasoning wrong but the outcome right: It urges the Supreme Court to correct the lower court’s error but deny Jones relief. 

And here are a couple of additional previews of Jones, which seems to me to be the most important federal criminal law case of the current SCOTUS Term to date:

From JD Supra, "Jones v. Hendrix: An Attempt to Save 28 U.S.C. § 2255’s 'Saving Clause'"

From Law360, "Habeas Case May Open Prison Door For Retroactive Innocents"

October 31, 2022 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

"Guns, Mass Incarceration, and Bipartisan Reform: Beyond Vicious Circle and Social Polarization"

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

Gun violence in modern America persists in the face of irreconcilable views on gun control and the right to bear arms.  Yet one area of agreement between Democrats and Republicans has received insufficient attention: punitiveness as a means of gun control.  The United States has gravitated toward a peculiar social model combining extremely loose regulations on guns and extremely harsh penalties on gun crime.  If someone possesses a gun illegally or carries one when committing another crime, such as burglary or drug dealing, draconian mandatory minimums can apply.  These circumstances exemplify root causes of mass incarceration: overreliance on prisons in reaction to social problems and unforgiving punishments for those labeled as “violent” criminals.  Contrary to widespread misconceptions, mass incarceration does not primarily stem from locking up petty, nonviolent offenders caught in the “War on Drugs.”  Most prisoners are serving time for violent offenses.  Steep sentence enhancements for crimes involving guns illustrate how American justice revolves around counterproductive, costly practices that disproportionately impact minorities.

This multidisciplinary Article envisions future reforms with the capacity to transcend America’s bitter polarization.  A precondition to change is not for conservatives and liberals to wholeheartedly agree on issues like systemic racism or the right to bear arms.  Rather, possibilities for penal reform are likelier when each side can come to the negotiating table for its own reasons.  A paradigm shift in conservative America may prove especially indispensable, as Republicans tend to be more supportive of harsh punishments and Democrats are unlikely to achieve reform nationwide on party-line votes.  This shift has already occurred to an extent given the rise of penal reform in red states.  But both conservatives and liberals have failed to significantly reduce mass incarceration by recurrently excluding “violent” offenders from reform initiatives.

The Article explores how conservatives and liberals could gradually converge toward sentencing reform on gun crime.  This could ultimately have a ripple effect on American sentencing norms, leading them closer to those of Western democracies with more effective and humane penal systems.  Such bipartisanship is less elusive than it might seem.  A rehabilitative approach toward gun crime fits with the evolution of American conservatism, which believes that guns should not be vilified since they are part of the nation’s identity.  Similarly, the rehabilitation of people convicted of gun crime is consistent with cornerstones of modern American liberalism, namely stricter gun control and opposition to mass incarceration as an unjust, racist system.  As opposite sides will probably retain much of their worldview even if their perspectives evolve to a degree, new ways of thinking could help bring reformers together.  These social transformations cannot be predicted but should be theorized.

October 31, 2022 in Elections and sentencing issues in political debates, Gun policy and sentencing, Second Amendment issues, Who Sentences | Permalink | Comments (0)