« October 8, 2023 - October 14, 2023 | Main | October 22, 2023 - October 28, 2023 »

October 20, 2023

Prison Policy Initiative provides new resources on prison discipline policies

The folks at Prison Policy Initiative this week released this new briefing which provides a "collection of prison discipline policies [that] covers all 50 states, Washington, D.C., and the Federal Bureau of Prisons, and highlights how each system classifies the severity of offenses and punishments." Here is a bit more from the briefing:

[T]he Prison Policy Initiative is publishing a collection of discipline policies for all 50 state prison systems, the Washington, D.C. Department of Corrections, and the Federal Bureau of Prisons in our Data toolbox.  It includes the discipline policy for each system, a list of offense severity classifications from most to least severe, and links to additional documents to help you understand each system’s classification scheme.

Advocates, researchers, and lawmakers can use this collection to examine the rules, offenses, procedures, and associated punishments for each prison system, or to answer questions about prison discipline systems such as:

  • What behaviors are considered “violations” in your state’s prisons?
  • How are different violations punished? How does the severity of punishment for certain actions compare to others?
  • How many different rules can be applied to punish a single action, such as a fight, potentially allowing prison staff to pick and choose or “stack” violations?
  • Does your state’s prison system punish people more harshly than others for similar violations?
  • What does the severity of punishment for certain actions — such as refusal to work or organizing a strike — tell us about the culture and priorities of prisons?
  • What is the “justice” process like inside prisons? How do people defend themselves? Is there due process inside?

October 20, 2023 in Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

October 19, 2023

Detailing how sex offenders in New York can imprisoned long past their maximum sentences

The Nation has this notable lengthy new article detailing just how some New York offenders end up incarcerated well past the end of their actual sentences.  The article's full title previews the key points: "They Were Supposed to Be Free.  Why Are They Locked Up?: No one wants a person convicted of a sex offense in their neighborhood.  So New York keeps them in prison long past their release dates."  Here are some excerpts:

[Jory] Smith is one of hundreds of New Yorkers over the past decade whom the state has imprisoned past their maximum sentences, often for months or years.  It’s not because the judicial system is afraid that he’ll commit another crime—a judge had determined that Smith’s “risk of re-offense is low.”  He is caged there, essentially, because he is homeless.

In 2015, Smith was imprisoned for sexually abusing an 8-year-old girl, and state legislation severely restricts where people with such sex-offense convictions are allowed to live.  With few politicians willing to publicly defend people who have been found guilty of sex crimes, authorities have been free to push the boundaries of how to enforce the law.

The state redesignates people convicted of sex offenses who have served their maximum prison sentences as parolees. But unlike others on parole, some of them don’t get released.  They’re kept incarcerated until they can find a legal place to stay or until their parole is up — for Smith, that’s August 2025.  They wear normal prison uniforms.  They abide by prison visitation, meal, and recreation rules. Most sleep in general population units.

Many of them also work a prison job. And the state holds most of their wages in an account that they can access only upon their undetermined and mostly unknowable release date.  For his work assignments, Smith receives between $5 and $10 a week.  He called it “slave wages from slave labor.”

This system of prolonged incarceration started nearly a decade ago—and the number of people subjected to it has increased.  In 2015, it was 37, according to data obtained by Appellate Advocates and shared with New York Focus and The Nation.  By 2017, the number had risen to more than 100, and in the first half of 2019, it was 60 — almost 8 percent of the “parolees.”

New York’s Department of Corrections and Community Supervision, or DOCCS, which runs the state prison and parole systems, wouldn’t offer updated annual numbers but said that, as of late July, it was holding 49 people past their release dates.  In a statement, the department said that it “follows the letter of the law” when it comes to confining people convicted of sex offenses.

Lawmakers have exacerbated the situation. And courts have so far greenlighted the practice — though that could soon change.  A judicial shake-up in New York this year saw one of the few people in power who was willing to criticize it become head of the New York Court of Appeals, the state’s highest court.  And a years-in-the-making lawsuit challenging the practice is set to hit the court’s docket.

That case might be the last hope for change until the politics around sex crimes shift.  “It’s very sensitive — people have very emotional reactions to sex offenders,” said James Bogin, a senior supervising attorney at Prisoners’ Legal Services of New York and part of the team working on the Court of Appeals case.  “The idea that the end of the sentence doesn’t mean anything, that it doesn’t even lead to any change in your circumstance, is pretty unbelievable.”

October 19, 2023 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sex Offender Sentencing | Permalink | Comments (10)

Might a real originalist turn in Eighth Amendment jurisprudence help many more criminal defendants than it would hurt?

The question in the title of this post is prompted by this new Reuters article about a recent speech delivered by Judge Thomas Hardiman.  The press piece is headlined "US appeals judge urges new standard on 'cruel and unusual' punishment," and here are excerpts:

A federal appeals court judge on Wednesday argued that the conservative-majority U.S. Supreme Court would have grounds to revisit its interpretation of the U.S. Constitution's prohibition on cruel and unusual punishment and "return to the text and original meaning of the 8th Amendment."  In a speech delivered at Harvard Law School, U.S. Circuit Judge Thomas Hardiman, an appointee of Republican former President George W. Bush on the 3rd U.S. Circuit Court of Appeals, argued that the high court should abandon a decades-old legal test for deciding if a punishment was unconstitutional.

The Supreme Court in a series of cases starting in 1952 interpreted the 8th Amendment's prohibition on cruel and unusual punishment based on what opinions described as the "evolving standards of decency that mark the progress of a maturing society." But Hardiman told the Harvard chapter of the conservative Federalist Society that the standard is a "contrived ratchet" that has fueled a "runaway train of elastic constitutionalism" giving judges too much power to invalidate laws in favor of defendants. "Its inscrutable standards require judges to ignore the law as written in favor of their own moral sentiments," he said. "The only constant is that more and more laws adopted by the people's representatives have been nullified."

Supreme Court rulings that have relied on that standard include one in 2005 barring capital punishment for offenders who were under 18 when they committed crimes and a 2008 decision striking down a Louisiana law allowing the death penalty for the rape of a child when the victim did not die. The court also relied on that standard in a 5-4 decision in 2012 that declared unconstitutional mandatory sentences of life in prison without the possibility of parole for people under age 18 convicted of murder....

The ideological split among justices has since changed, and thanks to three of Republican former President Donald Trump's appointments the court.... That newly constituted court in 2021 put an end to the court's run of decisions that put limits on life sentences without parole for juvenile offenders, making it easier for states to impose such sentences.

The court did so without mentioning the "evolving standards of decency" test, Hardiman said. He questioned whether the court would now "return to the text and original meaning of the 8th Amendment" as it has done in other areas, like the 2nd Amendment. He pointed to last year's Supreme Court ruling in New York State Rifle & Pistol Association v. Bruen, which set a new test for assessing firearms laws, saying restrictions must be "consistent with this nation's historical tradition of firearm regulation."

I have written in the past about the myriad challenges in giving meaning to the Eighth Amendment's prohibition on "cruel and unusual punishments," and I fully understand concerns and disconcert with "evolving standards of decency" test.  But, realistically, as interpreted through the years by the Supreme Court and lower courts, this "decency" test has only provided real constitutional protection to only a handful of capital and juvenile murderers.  As applied in modern times, 99.99% of all criminal defendants have zero chance of making a successful Eighth Amendment claim.

But if there were an originalist turn in Eighth Amendment jurisprudence, and especially if modern punishments were to be judged based on whether they were consistent with the nation's historical tradition, I could imagine a whole lot more criminal defendants having a whole lot more viable Eighth Amendment claims.  In a series of articles, Professor John Stinneford has forcefully argued that sound originalism would give the Eighth Amendment considerable bite.  Specifically, as the abstract of this article summarizes:

The original meaning of the Cruel and Unusual Punishments Clause calls into question the constitutionality of several current punishment practices, including lengthy prison sentences for certain offenses, longterm solitary confinement, the three-drug lethal injection protocol, and certain prison conditions, to name a few.

Professor Michael Mannheimer is another scholar who has made intriguing originalist claims about the Eighth Amendment as a unique and distinctive limit on federal punishments.  And I have seen various other claims and arguments in various other settings that could at least support arguments by various defendants that various modern punishments and not consistent with the nation's historical tradition. 

Notably, the experience of the post-Bruen originalist jurisprudence seems to be giving lower court judges considerable power to invalidate lots of laws in favor of (gun) defendants.  Consequently, I am not sure Judge Hardiman has thought this all through if he really in concerned about a constitutional jurisprudence that gives judges "too much power to invalidate laws in favor of defendants."  I sincerely think a real originalist turn in Eighth Amendment jurisprudence could actually help many more criminal defendants than it would hurt, at least relatively to existing Eighth Amendment jurisprudence.

October 19, 2023 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (10)

Sydney Powell, legal adviser to former Prez Trump, cuts plea deal to avoid incarceration in Georgia election prosecution

As reported in this new AP piece, "Sidney Powell pleaded guilty to reduced charges Thursday over efforts to overturn Donald Trump’s loss in the 2020 election in Georgia, becoming the second defendant in the sprawling case to reach a deal with prosecutors." Here is more:

Powell, who was charged alongside Trump and 17 others with violating the state’s anti-racketeering law, entered the plea just a day before jury selection was set to start in her trial. She pleaded guilty to six misdemeanors accusing her of conspiring to intentionally interfere with the performance of election duties.

As part of the deal, she will serve six years of probation, will be fined $6,000 and will have to write an apology letter to Georgia and its residents. She also agreed to testify truthfully against her co-defendants at future trials....

Powell, 68, was initially charged with racketeering and six other counts as part of a wide-ranging scheme to keep the Republican president in power after he lost the 2020 election to Democrat Joe Biden. Prosecutors say she also participated in an unauthorized breach of elections equipment in a rural Georgia county elections office. The acceptance of a plea deal is a remarkable about-face for a lawyer who, perhaps more than anyone else, strenuously pushed baseless conspiracy theories about a stolen election in the face of extensive evidence to the contrary....

Powell was scheduled to go on trial on Monday with lawyer Kenneth Chesebro after each filed a demand for a speedy trial. The development means that Chesebro will go on trial by himself, though prosecutors said earlier that they also planned to look into the possibility of offering him a plea deal. Jury selection was set to start Friday. Chesebro’s attorneys didn’t immediately respond to messages seeking comment Thursday on whether he would also accept a plea deal.

A lower-profile defendant in the case, bail bondsman Scott Graham Hall, last month pleaded guilty to five misdemeanor charges. He was sentenced to five years of probation and agreed to testify in further proceedings.

October 19, 2023 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (12)

October 18, 2023

Urging the Justice Department to respect the US Sentencing Commission's new guidelines for compassionate release

When Congress enacted the Sentencing Reform Act (SRA) in 1984, it created the notable 18 USC § 3582(c)(1)(A) provision authorizing a judge, upon a finding of "extraordinary and compelling reasons," to reduce a term of imprisonment.  The SRA further provided that the US Sentencing Commission was to set out policy statements describing what judges should consider extraordinary and compelling reasons. Specifically, 28 USC § 994(t) states:

The Commission, in promulgating general policy statements regarding the sentencing modification provisions in section 3582(c)(1)(A) of title 18, shall describe what should be considered extraordinary and compelling reasons for sentence reduction, including the criteria to be applied and a list of specific examples. Rehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason.

I read this provision to mean that Congress sought to make the Commission the primary expositor of what factors "should be considered extraordinary and compelling reasons for sentence reduction."  And the Commission earlier this year promulgated new amendments to its "compassionate release" policy statement.   As blogged here and here, one key provision concerned the authority of judges to sometimes consider "changes in the law" as a basis to satisfy the statutory requirement of finding "extraordinary and compelling reason" for a sentence reduction.  See proposed USSG § 1B1.13(b)(6).

I have heard talk that, notwithstanding the text of § 994(t), the Justice Department is planning to contest the new guideline once it become effective on November 1.  And that serves as the backstory for this new USA Today piece authored Erica Zunkel and Nathaniel Berry. I recommend the piece in full, which is headlined "First Step Act advanced prison reform, but hundreds are still serving unjust sentences; New Sentencing Commission guidelines will give them a chance for compassionate release. But DOJ threatens to stand in the way." Here are excerpts:  

Under new guidance from the U.S. Sentencing Commission, the agency responsible for setting federal sentencing policy, individuals like Walker can now ask judges to reduce their “unusually long sentences."  The underlying legal basis is a law passed by Congress in 1984 — informally known as "compassionate release" — that permits judges to reduce a sentence when an individual can show an “extraordinary and compelling” reason for doing so.

The Sentencing Commission’s commonsense expansion of compassionate release makes us hopeful that our federal criminal system can carve out a little space for redemption, mercy and a recognition that we don’t always get it right the first time around.

Unfortunately, even with the promise of and need for the commission’s new guidance, the future of compassionate release is uncertain.  The Department of Justice has objected to the commission’s recognition that legal changes resulting in an unjust sentence can qualify as an extraordinary and compelling reason justifying relief.

With the Sentencing Commission’s new guidance soon to be in effect and binding on federal judges, the DOJ and Attorney General Merrick Garland must decide whether they will support the commission — or whether they will fight to keep people such as Walker behind bars.

We urge AG Garland to follow the commission’s example and allow compassionate release to “rekindle” “the light of redemption (that) has almost been extinguished from our federal prisons,” as Commission Chair Judge Carlton W. Reeves explained when announcing the new sentencing guidelines....

The commission’s “unusually long sentences” provision is good policy.  Far from a get-out-of-jail free card, as some have suggested, it is instead a narrow recognition that a sentence imposed decades ago may, upon review today, be longer than necessary.

The provision applies in limited instances where, among other things, the person has served at least 10 years in prison and there is a “gross disparity” between their sentence and the one likely to be imposed today.  Even then, an individual still must demonstrate that they will not pose a danger to the community, and that their individualized circumstances weigh in favor of a sentence reduction....

We celebrate the Sentencing Commission for giving them that chance and urge the DOJ not to stand in the way when individuals like Walker take it.

October 18, 2023 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (19)

"A Comprehensive Analysis of the Effect of Crime-Control Policies on Murder"

The title of this post is the title of this notable new paper authored by Carlisle Moody recently posted on SSRN.  Here is its abstract:

This study investigates the effects of most of the major firearm and crime control policies on murder.  We use two-way fixed-effects models based on state-level panel data from 1970-2018.  We include a comprehensive list of relevant policy variables to control for their influence in determining the effect of each.  We do a specification search using four commonly used econometric methods to estimate three models of the crime equation.  A Bonferroni correction is used to control for false rejections. A robustness check using new difference-in-differences estimators confirms the results.  We find that, with the possible exception of constitutional carry laws, no firearm policy can be shown to have a significant long-run effect on murder.  However, we find that the traditional policies of prison incarceration and police presence significantly reduce murder in the long run.  We also find that executions have no significant long-run effect on murder.  Finally, there is considerable evidence that three-strikes laws increase murder in the long run.

October 18, 2023 in Data on sentencing, Gun policy and sentencing, National and State Crime Data, Scope of Imprisonment | Permalink | Comments (1)

Sentencing Project releases new report on felony disenfranchisement reform

Via email this morning, I learned that The Sentencing Project has just published this notable new report titled "Expanding the Vote: State Felony Disenfranchisement Reform, 1997-2023." Here is part of the "overview" from the report:

Voting eligibility and a person’s involvement in the criminal legal system have a historical but unnatural association in the United States. Some state laws dating back over 100 years, and motivated by racist ideology, permanently ban people convicted of a felony from voting, and almost all states have long prevented voting by people in prison.  Over the last 50 years the country’s investment in mass incarceration not only staggeringly increased the prison population and the community of people with a criminal record but increased the number of people banned from voting due to a felony conviction.  As a result, over 4.6 million Americans with a felony conviction were disenfranchised as of 2022, disproportionately impacting Black and Latinx residents.

Despite the stark consequences of mass incarceration and voter disenfranchisement, the advocacy of incarcerated and formerly incarcerated activists, organizers, legislative champions, and others have successfully fought to pass reforms to expand voting rights to justice-impacted individuals.  These changes, both administrative and statutory in recent decades, coupled by recent modest declines in the population of incarcerated people and those under community supervision reduced the total number of people disenfranchised by 24% since reaching its peak in 2016.

Understanding the origins of this progress to restore voting rights is beneficial for democracy and justice.  This report provides a state-by-state accounting of the changes to voting rights for people with felony convictions and measures its impact.  Since 1997, 26 states and the District of Columbia have expanded voting rights to people living with felony convictions or amended policies to guarantee ballot access.  These reforms were achieved through various mechanisms, including legislative reform, executive action, and ballot measures....

Over 2 million Americans have regained the right to vote since 1997.  These changes to expand and guarantee voting rights demonstrate national momentum to reform the nation’s restrictive and racially discriminatory voting laws.

October 18, 2023 in Collateral consequences | Permalink | Comments (5)

October 17, 2023

New Heritage report asserts "Red State Murder Problem Becomes the Blue County Murder Problem"

The Heritage Foundation today released this new report authored by Kevin Dayaratna and Alexander Gage which responds to prior reports about murder rates in "red" and "blue" states.  Here is the summary of this new report:

In January 2023, the Third Way think tank published a report claiming that homicide rates have been higher in “red” states than in “blue” states for the past 20 years. The argument is critically flawed in a number of ways. First, the report’s authors fail to acknowledge that crime is a local phenomenon and that any meaningful analysis needs to be undertaken at the local level. Second, the authors neglected to mention the fact that the electoral map changes over time. States that were “red” and “blue” in 2020 did not necessarily vote the same way in prior years. Correcting for these errors shows that crime has been higher in blue counties than in red counties.

Here is part of the report's analysis:

The Third Way authors claim that there is a difference between the murder rates in “red” states and “blue” states. Averaging these rates between the years 2014 and 2020 across states that voted for Donald Trump during the 2020 election yields an aggregate homicide rate of 6.48 per 100,000 people, while averaging across states that voted for Joe Biden yields a homicide rate of 4.83 per 100,000 people.

However, drawing conclusions from state-level homicide data in such a manner is flawed, as each state consists of a combination of federal, state, county, and local law enforcement agencies, as well as prosecutors with different approaches to law enforcement often based on highly divergent political beliefs.  Violations of state law are prosecuted largely at the county or city level and, thus, amalgamating data across such units neglects important variation in these different approaches.  Looking at homicide rates by county, states show skewed distributions with many counties having little or no homicides, and a handful of counties with excessively high homicide rates.  Thus, state homicide rates can be heavily influenced by a few counties. When those counties have different politics from the rest of the state, it can flip the conclusion about the association between political identifications and homicides.

As a result, after averaging homicide rates across counties during the same time horizon, a markedly different story from the Third Way’s narrative emerges.  Averaging across all counties that voted for Donald Trump yields an aggregate homicide rate of 4.06 per 100,000 people, while averaging across counties that voted for Joe Biden yields a homicide rate of 6.52 per 100,000 people.

Prior related post:

October 17, 2023 in Elections and sentencing issues in political debates, National and State Crime Data | Permalink | Comments (4)

New CAP report asserts "Cities in Blue States Experiencing Larger Declines in Gun Violence in 2023"

Yesterday, the Center for American Progress Action Fund released this new report which it claims "shows that, on average, cities in blue states have lower rates of gun homicides and shooting incidents than comparably sized cities in red states and are seeing larger single-year decreases in gun violence rates in 2023."  Here is the report's "Introduction and Summary" (with footnotes removed):

Gun violence anywhere is unacceptable. Yet increasingly, Americans are forced to grieve the unimaginable horrors of school and hate-motivated shootings in innocent communities, in addition to the daily occurrence of gun violence across the United States.  It is no wonder that Americans see gun violence as a top issue for Congress.  To stop gun violence in this country, every lawmaker at every level of government must come together to pass commonsense gun laws and stop violence before it happens.  Unfortunately, this has not been the case.

Even though gun violence is an epidemic — touching the lives of Americans everywhere — instead of passing stronger gun laws, Republican leaders are choosing to weaponize the issue for political gain by using misinformation to stoke fears of “Democrat-controlled” cities.  In 2022, for example, after a shooter took the lives of 19 children and two teachers at Robb Elementary School in Uvalde, Texas, Gov. Greg Abbott (R-TX) claimed that gun violence in the cities of New York, Los Angeles, and Chicago is evidence that tougher gun laws are “not a real solution.”  Similarly, despite evidence that New York City actually has relatively low rates of gun violence when controlling for its size, in April 2023, Rep. Jim Jordan (R-OH) used his powers as the House Judiciary Committee chair to hold a field hearing on violent crime in Manhattan to disrepute Manhattan District Attorney Alvin Bragg after Bragg brought charges against former President Donald Trump.  These examples demonstrate a larger coordinated effort by conservatives to make violent crime a “Democrat” issue while at the same time diverting attention from their own public safety failures to address gun violence, including neglecting to make it harder for individuals with violent intentions to obtain a gun.

However, despite the millions of dollars spent on this misinformation campaign, the data on gun violence homicides in America paint an entirely different picture. Original analysis conducted by the Center for American Progress Action Fund on the 300 most populous U.S. cities comparing gun homicide rates from January 2015 to August 2023 finds that, after controlling for population size:

  • Cities in blue states, based on how a state voted in the 2020 presidential election, are consistently safer from guns than cities in red states, regardless of which party is represented in city leadership.
  • From 2018 to 2021, red-state cities experienced larger increases in gun violence rates than blue-state cities.
  • In 2023, blue-state cities are experiencing larger declines in gun violence rates than red-state cities.

Not only do blue-state cities on average experience lower rates of gun violence in each year of the study, but now, gun violence rates appear to be decreasing faster on average in these cities than in red-state cities.  Put simply, the data do not back up the blame-game politics of Republican lawmakers such as Texas Gov. Abbott and Rep. Jordan.

October 17, 2023 in Elections and sentencing issues in political debates, Gun policy and sentencing, National and State Crime Data, Who Sentences | Permalink | Comments (14)

With clemency efforts stalled and new incoming governor, might Louisiana become an active death penalty state again?

Louisiana was once a very active death penalty state with more executions than any state other than Florida and Texas in the 1980s.  Renown capital abolitionist Sister Helen Prejean wrote her famous 1993 book, Dead Man Walking, based on her work ministering to two convicted murderers on Louisiana's death row.

But only one execution has been completed in the Pelican State over the last two decades, and there was much talk about possible efforts by outgoing Louisiana Gov John Bel Edwards to commute all of the state's death row.  But this report from the Louisiana Illuminator spotlights why the state might now be on the verge of another capital punishment shift. The press report should be read in full, but here are the highlights:

The Louisiana state Board of Pardons voted Friday against granting clemency hearings to five Louisiana death row prisoners, ending a monthslong effort to spare the lives of more than 50 people condemned to death.

Over four hours, the four-member panel in Baton Rouge heard impassioned testimony from attorneys, from still-grieving families of murder victims and from friends and relatives of the prisoners themselves.  The board ultimately split the vote 2-2 in four cases, leading to denials, with members Tony Marabella and Bonnie Jackson voting in favor of granting clemency hearings and Curtis Fremin and Alvin Roche, Jr. voting against.  The board denied a fifth case — Winthrop Earl Eaton, convicted in the 1985 killing of Monroe pastor Rev. Lea Joyner — in a 3-1 vote, with Marabella the lone member voting to grant the hearing.

Initial plans to hold clemency hearings — and vote on whether to commute the prisoners’ sentences from death to life — at Friday’s meeting were derailed after conservative Louisiana Attorney General Jeff Landry and several parish district attorneys sued the board.  Under a settlement agreement, rather than voting on whether to commute, the panel met to consider whether allow them to have their cases heard at a future hearing.

There are currently no plans to consider an additional 51 clemency requests, despite Gov. John Bel Edwards’ support of hearings for all 56 death row prisoners who applied.  Edwards, who, as governor, makes the final decision on recommendations from the board, kicked up a political storm earlier this year when he publicly stated his opposition to the death penalty. Capital defense attorneys responded by seeking to have the sentences of up to 56 death row prisoners commuted to life, while a group of pro-death penalty prosecutors, led by Landry, sought to stymie those efforts.

Landry, the leading candidate in the upcoming election for governor, has expressed his desire to move forward with the executions of those on death row, something that hasn’t happened in Louisiana since 2010 due to a shortage of lethal injection drugs.

Notably, as of Saturday night, as reported in this AP article, Landry is not just Louisiana's Attorney General, he is also now governor-elect. And the AP notes he has campaigned on tough-on-crime themes:

Landry has made clear that one of his top priorities as governor would be addressing crime in urban areas. The Republican has pushed a tough-on-crime rhetoric, calling for more "transparency" in the justice system and continuing to support capital punishment. Louisiana has the nation's second-highest murder rate per capita.

Of course, political advocacy for capital punishment does not always convert, quickly or even at any time, to actually completing executions.  But it still seems quite notable that, just earlier this year, there was much talk about mass commutation on Louisiana's death row; now it seems much more likely that Louisiana could be getting back into the execution business.

October 17, 2023 in Clemency and Pardons, Death Penalty Reforms, Who Sentences | Permalink | Comments (1)

October 16, 2023

"No Release: Parole grant rates have plummeted in most states since the pandemic started"

The title of this post is the title of this new briefing from the Prison Policy Initiative authored by Emmett Sanders.  Here is how it gets started (with links from the original):

Earlier this year, Alabama’s Board of Pardons and Paroles made headlines when it denied parole to someone who had died ten days prior to their parole hearing.  This is just one of many threads in the Alabama parole board’s tapestry of dysfunction.  For months, their three-person parole board operated with just two members despite requiring a majority vote to grant parole.  It is no wonder that Alabama is on track to have a parole grant rate — the percent of parole petitions approved — of just 7% for 2023.  This also comes as studies show racial disparities in parole grant rates are widening: for example, non-white people in New York were released at a rate almost 29% less than their white counterparts in 2022 (up from a difference of around 19% between 2016 and 2021).

With parole board practices so much in the news, we thought it was important to look around the country and evaluate the direction in which state parole boards are moving.  We filed dozens of records requests and curated the best research to explore whether state parole boards are helping reduce mass incarceration or whether they are disregarding the hard-learned lessons of the pandemic, when they released even fewer people than before the crisis as people died behind prison walls.

In the 28 states for which we collected 2022 parole approval data, only 7 had grant rates above 50% — Connecticut, Idaho, Nevada, North Dakota, Utah, Vermont, and Wyoming. Wyoming had the highest grant rate of 78%.  At the other end of justice’s sliding scale, Alabama (10%) and South Carolina (7%) have the lowest parole approval grant rates in the nation.

With few exceptions, parole grant rates dropped significantly from 2019 to 2022.  In the 26 states for which Prison Policy Initiative was able to track changes in parole approval rates from 2019-2022, only 6 — Connecticut (+29%), Georgia (+17%), Texas (+11%), Hawai’i (+8%), South Dakota (+6%), and Nevada (+1%) — have seen any increase since 2019.  In the remaining 20 states from which we received data, parole grant rates have seen either no change or have seen a marked decline, with South Carolina (-80%) and Alabama (-67%) seeing the biggest drop offs in grant rates.

But state parole boards did not only choose to release fewer people.  They heard fewer cases as well.  With the exceptions of Oklahoma, South Dakota, and Arkansas, parole boards continued to hear significantly fewer total cases in 2022 than they did in 2019.  The result is that since 2019, the number of people released through discretionary parole has decreased across the board.

October 16, 2023 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

FBI releases crime estimates showing "national violent crime decreased an estimated 1.7% in 2022 compared to 2021"

As reported in this official press release, headlined "FBI Releases 2022 Crime in the Nation Statistics," today brings new estimates of crime data in the US in 2022.  Here are highlights:

The data of Crime in the Nation, 2022 were released via several reports....  Of the 18,884 state, county, city, university and college, and tribal agencies eligible to participate in the UCR Program, 15,724 agencies submitted data in 2022.

The FBI’s crime statistics estimates for 2022 show that national violent crime decreased an estimated 1.7% in 2022 compared to 2021 estimates:

  • Murder and non-negligent manslaughter recorded a 2022 estimated nationwide decrease of 6.1% compared to the previous year.
  • In 2022, the estimated number of offenses in the revised rape category saw an estimated 5.4% decrease.
  • Aggravated assault in 2022 decreased an estimated 1.1% in 2022.
  • Robbery showed an estimated increase of 1.3% nationally....

The complete analysis is located on the UCR’s Crime Data Explorer.

The FBI's report of over a six percent homicide reduction in 2022 is a larger reduction than I have seen in any other reports or estimates.  For example, the Council on Criminal Justice crime accounting in January 2023 reported a 4% homicide reduction in 2022 based on certain key cities.  And the AH Datalytics final year-end spreadsheet reported a 5% reduction in murders in 2022 based on police reports from the biggest US cities.

Of course, as I have stressed in a number of prior posts, reported homicide declines for 2022 followed particularly high homicide rates in many locales in 2021, and we still have a way to go to get back to pre-pandemic homicide levels.  But these latest homicide and violent crime data from the FBI for 2022 are still good news to celebrate, especially since 2023 data from big cities suggest positive recent homicide trends are continuing and perhaps even accelerating. 

October 16, 2023 in National and State Crime Data | Permalink | Comments (15)

Making the case against "mass supervision"

41hG5jF+RfLIn recent weeks, a number of new press pieces have discussed Vincent Schiraldi's notable new book titled "Mass Supervision: Probation, Parole, and the Illusion of Safety and Freedom."  (I have linked to some of those piece below.)  Today, I see that the author has this new opinion piece in the Washington Post under the headline "Parole and probation don’t work. Let’s think of a new approach." Here are excerpts:

There are nearly 4 million people in the United States on parole and probation — about twice as many as are incarcerated in our prisons and jails. These individuals are not quite free in the way that the rest of us take for granted. Their homes can be searched without a warrant; they can be incarcerated without representation and held without bail; they do not have the right to remain silent; and they can be convicted of, and imprisoned for, noncriminal acts based on evidence that does not need to be proved beyond a reasonable doubt.

Probation (a front-end sentence intended as an alternative to incarceration) and parole (early release from prison for good behavior) have been around since the 1800s. Both originated as alternatives to what was a new but increasingly brutal penitentiary system and were intended to rehabilitate people in the community. They are unsuccessful on both counts.

In the 1970s, rehabilitation became a dirty word in criminal justice, and the system took a sharply punitive turn, setting the country on a march toward mass incarceration and mass supervision. Probation and parole pivoted to a “trail ’em, nail ’em, and jail ’em” approach. This ushered in a mushrooming of hard-to-meet supervision conditions and imprisonment for noncriminal supervision violations. From 1980 to 2008, there was a fivefold increase in the number of people under community supervision — topping 5 million at the peak — alongside a similar expansion in prison populations. Nearly 1 in 4 people entering state prisons are incarcerated for a technical violation of their supervision, not a new offense, costing taxpayers $2.8 billion annually....

Mass supervision has managed to make us less free and no safer, all at great cost. As policymakers look to reform their supervision systems, they should consider reducing — or, for some groups, eliminating — probation and parole supervision, replacing them with services offered by nonprofit and volunteer groups, and carefully studying the outcomes.

A number of states have downsized supervision, saved money and improved public safety. In Missouri, policymakers reduced probation terms by 30 days for every 30 days of compliance while under supervision. In the first three years, 36,000 people were able to reduce their terms by 14 months, the number under supervision dropped by 18 percent, and reconviction rates for those released early were the same as for those discharged from supervision before the policy went into effect. If less supervision has better outcomes at lower cost, it’s plausible that no supervision — and investing the resulting savings in community supports such as housing, employment, and drug and mental health services — might yield even better ones.

After nearly two centuries, probation and parole have failed to prove their worth. Let’s carefully experiment with, and assiduously study, the alternatives instead.

A couple recent press pieces about this book:

From NPR, "Almost 4 million people are on probation or parole. Here's why that matters."

From Slate, "The Largest Form of Criminal Punishment in the United States Is Not Prison. It’s Still Awful."

October 16, 2023 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (6)

October 15, 2023

Extensive account of clemency and the clemency process in Minnesota

The New York Times has this extensive new article on clemency in Minnesota (and elsewhere) titled "‘I Want to Be Forgiven. I Just Want to Be Forgiven.’: When the Minnesota Board of Pardons meets, supplicants have 10 minutes to make the case for mercy." I recommend the long piece's intricate discussion of the Minnesota clemency process, and here is an excerpt from the article discussing clemency more generally:

No one can expect mercy. No one has the right to be forgiven. Pardons live beyond the parameters of the criminal code’s black-and-white text. They are, by nature, extraordinary.

Rooted in part in the ancient doctrine that monarchs derive power directly from God, pardons are a discretionary tool often given to the executive branch — the president and the governor — to override court-ordered sanctions: to shorten a prison sentence, restore civil rights or eliminate the obligation to identify oneself as a felon.

They are intended to provide relief from what Alexander Hamilton, in the Federalist Papers, called the “necessary severity” of the law — a kind of safety valve against injustices inherent in justice systems....

There are other systems for restoring legal and social status, including diversion programs, expungement and record-sealing. Pardons, though, carry the emotional heft of society’s forgiveness. And depending on the jurisdiction, their application can be transparent or mysterious, reasoned or arbitrary — even questionable, with some reformers calling them a capricious relic....

Two generations ago, as drug-related violence plagued many cities, presidents and governors adopted tough-on-crime stances that, among other consequences, led to fewer pardons. The many social benefits that might accrue from mercy were determined not to be worth the political risk. According to the nonprofit Collateral Consequences Resource Center, the pardon became “a shadow of its once-robust self.”

“It is a national struggle in legislatures to figure out how to deal with this enormous number of people with a criminal record who can’t get jobs or housing,” said Margaret Love, the founder of the resource center and a former United States pardon attorney. “We’re trying to reintegrate people, but we still won’t forgive them.”

October 15, 2023 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)