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December 15, 2023

Noting the already notable echoes of SCOTUS cert grant in Fischer Jan 6 case

A couple of days ago, as noted in this post, the Supreme Court granted cert in Fischer v. USNo. 23-5572Fischer arises from a Jan 6 prosecution in DC and raised issues as to the scope and reach of 18 U.S.C. § 1512(c), which prohibits obstruction of congressional inquiries and investigations.  I believe there are hundreds of other Jan 6 defendants who have or had faced such a charge, and this new CBS News article highlights how the SCOTUS grant is already having ripples in other cases:

Just days after the Supreme Court agreed to examine the breadth of an obstruction law used to prosecute hundreds of defendants for their alleged actions during the Jan. 6, 2021, Capitol riot, the court's very consideration of the law is already being invoked in both federal district court proceedings and by those already convicted in high-profile Jan. 6 cases.  In one such hearing Friday, U.S. District Judge Beryl Howell warned of a possible backlog of cases involving the federal statute, known as 1512, which accuses defendants of obstructing an official proceeding....

The Justice Department has charged more than 327 defendants with the crime, which carries a maximum of 20 years in prison, and more than 50 have pleaded guilty to the count, according to a CBS News review of court documents and proceedings. Former President Donald Trump has also been charged with two counts under the obstruction law — conspiracy to obstruct an official proceeding and obstruction of an official proceeding — by special counsel Jack Smith. He has pleaded not guilty to both of these counts, as well as two others that arose over his alleged actions in the wake of the 2020 presidential election.

Howell said from the bench Friday she has heard from fellow judges in Washington's federal district court that they have already come across requests from Jan. 6 defendants who are either charged with or have pleaded guilty to the obstruction charge and are now asking to pause proceedings until the Supreme Court determines whether the statute can be applied to Jan. 6-related conduct.  Howell said that such requests are not "unreasonable" and suggested a federal prosecutor narrow a plea offer involving the 1512 count to focus on another charge to avoid delaying the case.  Howell indicated the judges in the court could encounter backlogs in scheduling because of the high court's review....

Gene Rossi, a former federal prosecutor who went on to represent a member of the Oath Keepers charged for his conduct on Jan. 6, said a Supreme Court ruling that is favorable to defendants could benefit those who either pleaded guilty to obstruction or were convicted of violating the statute.  Defendants whose cases have already been adjudicated can return to the trial court and request either new trials or lesser sentence. The obstruction charge "permeated" every major Jan. 6 trial in the district court in Washington, he said.  "The 1512 charge for the prosecutors was their gold standard, it was their North Star. It was the capstone of their prosecutions," Rossi told CBS News. "If the Supreme Court removes that capstone, that gold star, that North Star, that could be a tremendous game-changer for many defendants."

For defendants whose cases are in earlier stages and have not yet gone to trial, Rossi said the Supreme Court's decision to hear the case helps them, and may change how prosecutors pursue plea agreements.  "The Supreme Court's acceptance of this case for argument is a significant bargaining chip because any smart, wise and seasoned prosecutor would say listen, I'm not going to insist on 1512 because there's a risk, and if the defendant wants to plead to lower charges, lower felonies or misdemeanors, I'd rather have a bird in the hand than risk not having anything," Rossi said....

Already, high-profile defendants have asked for temporary remedies in their cases as the justices consider Fischer's appeal.  On Wednesday, former Oath Keepers affiliate Thomas Caldwell asked the federal judge overseeing his case to delay his sentencing scheduled for later this month.  Caldwell was acquitted of more serious charges but convicted of the 1512 obstruction statute after standing trial with leader Stewart Rhodes.

"The government is requesting a 14-year sentence for Caldwell based almost entirely upon his finding of guilt" on the obstruction charge, his attorney David Fischer wrote, asking the judge to put a hold on the sentencing until the high court rules.  "We believe that Mr. Caldwell will ultimately be exonerated by a favorable ruling in the Supreme Court, and therefore believe it is appropriate to delay his sentencing," Fischer told CBS News in a statement.

Another high-profile defendant, Kevin Seefried, who rose to prominence after he was seen carrying a Confederate flag throughout the Capitol at the height of the breach, asked a federal judge in Washington to release him from his three-year prison sentence as the case is considered. Seefried was convicted of five counts including obstruction of an official proceeding and disorderly conduct last year and has since challenged the legality of the 1512 statute himself.  His lawyers argued in court filings Friday that if the obstruction count is dismissed, his prison sentence should be substantially reduced. "A favorable resolution of the substantial question raised by Mr. Seefried is very likely to result in a sentence less than the total of the time he has already served given the expected duration of the appeal process," the attorney wrote.

A lawyer for Donovan Crowl, a member of the Oath Keepers who was convicted in July of conspiracy to obstruct an official proceeding and civil disorder, asked Judge Amit Mehta on Friday to pause his sentencing, set for Jan. 12, pending the Supreme Court's resolution of Fischer's case.  If the 1512 conviction is tossed out as a result of a ruling from the high court, Crowl's sentencing "would be materially impacted," as a number of factors that courts consider at sentencing would be more favorable to Crowl, his lawyer Carmen Hernandez argued in a filing.  Hernandez told CBS News she sought to have Crowl's sentencing pushed back because she thinks the Supreme Court case "bodes well" for Jan. 6 defendants.

December 15, 2023 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (4)

Fascinating new Slate series on "how technology is changing prison as we know it"

This week I came across this notable new series of articles at Slate titled "Time, Online: How technology is changing prison as we know it."  The series as of this writing has nine extended pieces by an array of authors covering topics at the intersection of modern technology and modern prison.  I have only started reading a few of the piece, and they are all really interesting.   This piece by Mia Armstrong-Lopez serves as an introduction under this full title: "For Years, Prison Life Was Isolated From Tech. Now Tech Is Beginning to Define It: Introducing Time, Online, a new Future Tense package that explores how technology is changing prison as we know it." Here is an excerpt from that piece (with links from the original):

Around 1.9 million people are currently incarcerated in the United States, and an estimated 45 percent of Americans have at some point experienced the incarceration of an immediate family member.  (For Black Americans, that number increases to 63 percent.)  For many years, prisons have largely been tech bunkers, keeping incarcerated people isolated from the world outside.  But things have started to change.  In some cases, they changed because prison leaders recognized the need to connect incarcerated people to their communities. In other cases, they changed because, in relationship with private companies, prisons found a way to profit.

The pandemic accelerated this trend. Activities like visitation and education programs were paused and in many cases replaced by video callse-messaging, and other virtual activities, facilitated in part by glitchy, specially made tablets distributed by private companies.  As a result, things like tablets and e-messaging — which may seem trivial to those of us on the outside but can be transformational on the inside — are now popular in prisons and jails across the country. Instead of being isolated from technology, big parts of incarcerated people’s lives are now being mediated through it.

Time, Online, a new package from Future Tense, attempts to document this moment.  Through a series of essays that were (with one exception) written by currently and formerly incarcerated people, we’ll examine how tech is changing what it means to be in prison.  We’ll explore what happens when streaming comes to prison and how e-messaging is affecting romantic relationships.  We’ll look at how incarcerated people are finding ways to jailbreak tablets and how you Google from the inside.  We’ll look at what it’s like to wear an ankle monitor and to get access to a laptop after 17 years in prison.  We’ll share diaries that document how incarcerated people interact with tech hour by hour, in three different state prison systems, and how much it costs.  And we’ll dig into the who’s who of prison tech companies and the powerful financial forces behind them.

December 15, 2023 in Prisons and prisoners, Technocorrections | Permalink | Comments (0)

December 14, 2023

Some early celebrations of the FIRST STEP Act at five

In May 2018, the US House of Representatives under the leadership of House Speaker Paul Ryan (remember him?) voted by a margin of 360-59 to pass the Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act or the FIRST STEP Act.   After much debate over the reach of the bill, in mid December 2018, the US Senate under the leadership of Senate Majority Leader Mitch McConnell (remember him?) voted by a margin of 87-12 to pass a somewhat bigger and broader version of the First Step Act.  After the House blessed the new version by a vote of 358-36, the final First Step Act went to the desk of President Donald Trump for signature on December 21, 2018.

I bring up this history because, arguably, the fifth anniversary of the First Step Act might be celebrated at many times.  But, techinically, we are still a week away from the official signing day for this consequental law.  But I have seen various reports of various forms of celebration and commentary as we approach the First Step at five, and I figured I could usefully do a quick round up here:

From the US Senate Judiciart Committe, "Durbin, Booker Celebrate Fifth Anniversary of the First Step Act on Senate Floor"

From Kevin Ring writing in The Hill, "The First Step Act wasn’t a mistake — but criminal justice reformers dropped the ball"

From Puck, "A Night for First Steps"

From Reason, "Colleen Eren: Why Donald Trump Signed the FIRST STEP Act"

December 14, 2023 in FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (0)

US Sentencing Commission publishes for comment 755 pages(!) of "Proposed Amendments to the Sentencing Guidelines (Preliminary)"

USSC-Seal_vFFAs summarized in this press release, this afternoon "the U.S. Sentencing Commission voted to seek comment on several proposals that would, among other things, limit the federal courts’ consideration of acquitted conduct and youthful convictions under the federal sentencing guidelines."  Here is more from the press release:

The bipartisan Commission voted today to publish for public comment several options to address the use of acquitted conduct for sentencing purposes. The proposed amendment comes after the Commission took up the issue during last year’s abbreviated amendment cycle but determined that more time and public comment was needed before promulgating amendments.  The U.S. Supreme Court recently denied several petitions for writs of certiorari related to the use of acquitted conduct.  In issuing the denials, four Justices indicated their support for the denial, in part, to give the Commission time to address the issue.

U.S. District Judge Carlton W. Reeves, Chair of the Commission, said, “When the Supreme Court tells us to address an issue, the Commission listens.  From continuing the use of acquitted conduct to restricting (or even eliminating) its use in sentencing, all options are on the table.  We need the input of stakeholders — from seasoned federal judges to the individuals who have been directly impacted by sentencing and incarceration — to settle on the best course of action.” (Access the Comment Portal.)

Prompted by evolving brain development research, the Commission also proposed changes that would limit the impact of prior juvenile convictions on criminal history scoring and expand consideration of an individual’s youthful age at sentencing.  Judge Reeves said, “Congress directed the Commission to draft fair and equitable guidelines that reflect advancements in knowledge of human behavior as it relates to the criminal justice process.  We look forward to the public’s input on how to ensure that federal sentencing reflects all of the relevant data and research around age, crime, and justice.”

The Commission also proposed an amendment that would simplify the current “three-step process” followed by judges at sentencing by effectively removing step two — consideration of departures under the Guidelines Manual.  The proposal would also more closely align Commission guidance regarding consideration of individual characteristics with the factors set forth by Congress in section 3553(a).

“The Commission has reported on the impact of the Booker decision on multiple occasions.  Today’s proposed amendment acts on these observations and, after nearly 20 years, would update the Guidelines Manual to more fully reflect the advisory sentencing guidelines system established by the Supreme Court in Booker,” said Judge Reeves.

As part of this year’s policy work, the Commission has also worked to compile and disseminate information on court-sponsored programs relating to diversion, alternatives-to-incarceration, and reentry.  While the Commission did not propose amendments on this priority, the Commission published program documentation and background information on its website.  The Commission has also released its first podcast episode in a miniseries highlighting the various problem-solving courts around the country. It is the Commission’s intent to continue to develop and update these resources throughout the amendment year.

Several other technical or clarifying amendments were proposed today, including amendments addressing the guidelines commentary, new laws, and several circuit conflicts.

Today’s proposals are all drawn from the final policy priorities the Commission unanimously approved in August 2023.  The proposed amendments and issues for comment will be subject to a public comment period running through February 22, 2024. A public hearing on the proposed amendments will be scheduled in Washington, D.C., at a later date.

The Commission will soon post information about public hearings as well as a data presentation on today’s Proposed Youthful Individuals Amendment.  Official text of proposed amendments and issues for comment will also be published in a forthcoming edition of the Federal Register.

December 14, 2023 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

The Bureau of Justice Statistics releases "Jail Inmates in 2022 -- Statistical Tables"

The Bureau of Justice Statistics this morning published a lot of new data about jail populations as of 2022.  This press release, titled "Local jails held 4% more people in 2022 than in 2021," provides these highlights regarding the data detailed in this 30-page report:

At midyear 2022, local jails held 663,100 persons in custody, 4% more than the year before and 21% more than at midyear 2020.  The number of persons in jail custody saw a 25% decline from 2019 to 2020 as local authorities reduced admissions in response to the COVID-19 pandemic. “Though the jail population declined during the pandemic, by midyear 2022 it was back to 90% of its midyear 2019 size,” said BJS Acting Director Kevin M. Scott, PhD.

At midyear 2022, there were:

• 505,700 inmates held for a felony offense, accounting for 76% of the jail population

• 199 jail inmates per 100,000 U.S. residents, down from 237 per 100,000 at midyear 2012

• 915,900 jail beds in the United States, 72% of which were occupied

• 4.0 jail inmates for every correctional officer, up from 3.6 at midyear 2021 and 3.0 at midyear 2020.

From July 1, 2021 to June 30, 2022, persons admitted to jails spent an average of 32 days in custody before release, longer than the 23-day average a decade prior.  About 1,300 persons served weekend-only sentences on the weekend before the last weekday in June 2022, down from 10,400 in 2012. 

There were 92,900 females in local jails at midyear 2022, who accounted for 14% of the jail inmate population. From 2021 to 2022, the number of females in jail increased 9%, while the number of males increased 3%. From 2012 to 2022, the number of persons age 17 or younger in jail decreased from 5,400 to 1,900, averaging a 10% decline each year.

The racial and ethnic composition of the jail population remained stable from 2021 to 2022. At midyear 2022, about 48% of all persons held in jail were white, 35% were black and 14% were Hispanic.  American Indian or Alaska Native persons, Asian persons, Native Hawaiian or Other Pacific Islander persons and persons of two or more races together accounted for 3% of the total jail population.  From midyear 2012 to midyear 2022, the jail incarceration rate for Hispanic persons decreased at an average annual rate of 3.7%.  The rate decreased, on average, at 2.4% a year for black persons and 0.7% a year for white persons.

December 14, 2023 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

December 13, 2023

"Democratizing the Eighth Amendment"

The title of this post is the title of this new article recently posted to SSRN and authored by Erin Braatz. Here is its abstract:

The concept of evolving standards of decency has long been an important component of the Supreme Court’s interpretation of the Eighth Amendment’s prohibition on cruel and unusual punishment.  Yet the Court’s recent decisions problematically conceive of standards of decency as something static and capable of precise measurement.  This Article proposes a theoretically robust and empirically grounded account of evolving standards of decency, drawing on scholarship in the fields of history, sociology, and anthropology. This literature reveals that rather than constituting a static state, standards of decency develop through a process dependent upon interpersonal interactions.  While the Supreme Court’s earliest invocations of the concept of evolving standards of decency relied upon arguments similar to those found in this literature, the Court has lost sight of the concept’s dynamic nature.

Applying this account of standards of decency to the history of penal reform in the United States, this Article contends that the extreme privatization and isolation of penal practices beginning in the mid-twentieth century prevents the public from evaluating whether prison practices in the United States violate the Eighth Amendment’s prohibition on cruel and unusual punishment.  It also stymies the process through which standards of decency might evolve.  The development of penal practices outside of the public eye thereby contributes to the Supreme Court’s struggle to apply the concept of evolving standards of decency to imprisonment cases.  In contrast, recent reform movements, such as prison abolitionism, community control, and democratic criminal justice all rely implicitly on some version of a process-oriented notion of standards of decency.  In varying ways, they reflect a belief that building and facilitating robust interpersonal relationships will lead to a radical reimagining of how individuals can and should be treated in response to harms they may have caused.  Rather than rely on the Supreme Court to ensure that punishments in the twenty-first century are not cruel and unusual, this Article concludes that we must democratize the Eighth Amendment by adopting public policy choices that enable public engagement with penal spaces and the development of the interpersonal relationships through which standards of decency can be engaged.

December 13, 2023 in Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Four criminal cases of note in latest SCOTUS cert grants

The Supreme Court put out what I assume will be their last order list with cert grants for 2023, and this list had lots of notable cases from criminal justice fans.  The case sure to get the most attention is not a (quite) criminal case, with the Justices taking up a Fifth Circuit ruling that partially restricted access to mifepristone, the drug widely used in medication abortions.  But, as this SCOTUSblog post details, one of the crimnal case grants is sure to get a lot of attention and grants in three two other cases are also of note in a term shaping up to be heavy with criminal case:

Two days after Special Counsel Jack Smith asked the justices to decide quickly whether former President Donald Trump can face criminal charges for conspiring to overturn the results of the 2020 elections, the Supreme Court agreed to hear a case that could affect the charges against Trump even if the court ultimately rules that he is not immune from prosecution.  The justices on Wednesday agreed to weigh in on the use of a federal law — also at issue in Trump’s case — that makes it a crime to “corruptly” obstruct congressional inquiries and investigations to prosecute participants in the Jan. 6 attacks on the U.S. Capitol.

The announcement that the justices would hear argument in Fischer v. United States... The defendant in the case, Joseph Fischer, says he was only briefly inside the Capitol on Jan. 6 but was charged with (among other things) assaulting a police officer, disorderly conduct in the Capitol, and obstruction of a congressional proceeding.

Fischer sought to have the charge at the center of his Supreme Court case dismissed, and U.S. District Judge Carl Nichols agreed.  He reasoned that the law, which was enacted in the wake of the Enron collapse, was only intended to apply to evidence tampering that obstructs an official proceeding.

The U.S. Court of Appeals for the District of Columbia Circuit reversed and reinstated the charges against Fischer (as well as those against two other men).  It ruled that “[u]nder the most natural reading of the statute,” the law “applies to all forms of corrupt obstruction of an official proceeding, other than the conduct that is already covered by” the evidence-tampering provision.  In a dissenting opinion, Judge Gregory Katsas countered that the government’s interpretation of the law would render it “both improbably broad and unconstitutional in many of its applications.”

Fischer came to the Supreme Court in September, asking the justices to hear his appeal, which they agreed to do on Wednesday.

The justices also agreed to review a ruling by the U.S. Court of Appeals for the 9th Circuit in favor of Danny Lee Jones, who was sentenced to death for the murders of Robert Weaver and Weaver’s seven-year-old daughter, Tisha.  A federal district court in Arizona rejected Jones’s claims that his lawyer had provided inadequate assistance, but a federal appeals court in California reversed that decision. Over two dissents joined by 10 judges in total, the full court declined to rehear the case.

The state came to the Supreme Court in the spring, asking the justices to summarily — that is, without additional briefing or oral argument — reverse the 9th Circuit’s ruling. It argued that the lower court had misapplied the Supreme Court’s 1984 decision in Strickland v. Washington, which sets out the test to determine whether a lawyer’s performance was so inadequate that it violated the Constitution.  After considering the case at every conference since late September (and requesting the record from the lower court, which often suggests either that the court is drafting a summary reversal or that one or more justices is writing a dissent or a statement regarding the court’s decision not to hear the case), the justices finally announced on Wednesday that they would hold briefing and oral argument on the merits in the case.

Wednesday’s other grants included:

  • Chiaverini v. City of Napoleon – Whether a claim for malicious prosecution can proceed for a baseless criminal charge, even if there was probable cause for prosecutors to bring other criminal charges

  • Snyder v. United States – Whether federal bribery laws make it a crime to accept “gratuities” — that is, payment for something a government official has already done, without any prior agreement to take those actions in exchange for payment

December 13, 2023 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (10)

Alabama documents flags risks to others in plans to pioneer execution with nitrogen gas

NPR has this new story on Alabama's plans to become the first state execute an individual using nitrogen gas under the headline "Alabama's upcoming gas execution could harm witnesses and violate religious liberty."  Here are excerpts from a lengthy piece:

The state of Alabama plans to execute a prisoner in January using nitrogen hypoxia, a process so novel and untested that state officials required the man's spiritual adviser to sign a waiver that said he could be exposed to the gas.  The acknowledgment form, exclusively obtained by NPR, also reveals that the spiritual adviser, Rev. Dr. Jeff Hood, is required to stay at least three feet away from the prisoner, which may violate both their religious liberties.

If Alabama proceeds with the execution, it will be the first time any U.S. state uses nitrogen gas to put a prisoner to death, but the second time Alabama attempts to execute Kenneth Smith.  Alabama's first attempt in 2022 to execute him failed. Before the execution was ultimately called off last year, Smith spent four hours strapped to a gurney as workers tried to insert needles into his veins to inject him with drugs.  Smith's lawyers requested the state use nitrogen gas instead of lethal injection if they attempted another execution.

Hood had an early warning that this execution might be dangerous. "When I first got in touch with Kenny," he said, "one of the first things that he asked me was, 'are you prepared to die to be my spiritual adviser'?"

The Department of Corrections asked Hood to sign a legal document confirming that the new method could put him at risk. The document declared that it was possible, although "highly unlikely," that the hose supplying gas to Smith's mask could detach and "an area of free-flowing nitrogen gas could result, creating a small area of risk (approximately two (2) feet) from the outflow."  It was also possible that nitrogen gas could displace oxygen in the air above Smith's face and head, according to the document, but there would be gas sensors in the room as a safety precaution.  The Department of Corrections asked Hood to agree to remain at least three feet away "from the mask or any outflow of breathing gases discharging from the system."

Critics say the form demonstrates that Alabama has not adequately prepared for the execution and that nitrogen gas may pose serious threats to workers nearby.  "They could start to hyperventilate because their body would detect that they're in a low oxygen environment," said Dr. Joel Zivot, an anesthesiologist and associate professor at Emory University School of Medicine.  "And that severe hyperventilation can lead to a stroke."...

At the time of publication, the agency did not respond to a request for comment about their assessment of the risk to others in the room. NPR requested all other forms the Department of Corrections may have asked workers to sign, but the agency declined to share the documents. A representative said that disclosure would be "detrimental to public interest."...

This year, Hood has been present at four executions in Texas, Oklahoma, and Alabama. He's never been required to acknowledge a risk to his safety before. "There is no doubt in my mind that Alabama is the most ill-prepared, unprofessional execution squad that exists of those three," Hood said.

Despite his reservations, Hood agreed to be Smith's adviser and signed the form on Nov. 15. "I just cling to a real knowledge that, 'greater love hath no one than this, that one would give their life for their friend,'" said Hood, quoting scripture.

December 13, 2023 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (3)

December 12, 2023

"The Role of Policy in Prison Growth and Decline"

The title of this post is the title of this notable new working paper available via SSRN and authored by Derek Neal and Armin Rick. Here is its abstract:

Between 1975 and 2008, the US incarceration rate increased by roughly 400 percent.  Trends in crime rates, arrest rates per crime committed, conviction rates per arrest, and expected time-served in prison given conviction all influence trends in incarceration rates.  Available data do not allow researchers to precisely measure the contribution of each of these factors to the US prison boom.  However, increases in expected prison time-served among those arrested for many different offenses were the most important drivers of rising incarceration rates.  We argue that changes in policies that govern sentencing and parole are the likely drivers of these increases.  We also discuss potential reforms that may reduce expected time-served among convicted offenders while minimizing harm to public safety.

December 12, 2023 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

The Sentencing Project produces new fact sheets on "Racial and Ethnic Disparities in Youth Incarceration"

I received via email an alter that The Sentencing Project has produced "new fact sheets show state-by-state incarceration rates by race and ethnicity" with respect to "youth incarceration."  These facts sheets are accessible at this link, and here is how the work is described at that webpage:

Despite significant drops in youth incarceration over a decade, youth of color remain vastly more likely to be incarcerated than their white peers.  New data released today by The Sentencing Project reveal Black youth and Tribal youths’ disproportionate incarceration is largely unchanged compared to 10 years prior, while Latinx youths’ incarceration disparities with their white peers have been reduced.

The Sentencing Project’s new fact sheets show state-by-state incarceration rates by race and ethnicity and highlight where the problem is getting worse and better.

December 12, 2023 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

December 11, 2023

Highlighting the many challenges in assessing recidivism data

Stateline has this effective (and evergreen) article on the difficulties surrounding recedivism data.  The full healine of this piece highlights its themes: "How many inmates return to prison? Inconsistent reporting makes it hard to tell. States define recidivism differently, which can result in misleading interpretations of the statistics." Here are excerpts:

Several states this year have reported lower rates of recidivism, showing that fewer convicted criminals are being re-arrested after leaving prison.  But those statistics hardly tell the full story.

Recidivism rates across the country can vary greatly because of how they’re defined, how the data is collected and how it’s presented to the public.  So it can be difficult to say that, for example, one state is doing better than another in rehabilitating formerly incarcerated residents....

Most states measure recidivism by tracking former inmates who were held in state prisons or facilities and return to the state prison system within three years.  Experts say the absence of a national standard makes it challenging to compare jurisdictions and programs....

In recidivism studies, the act of reoffending may be defined differently.  It can, for example, include violating parole, being arrested, being convicted of a crime or returning to prison.  Some studies consider all these outcomes as recidivism, while others count only one or two. 

Some states only consider felonies as recidivism, excluding less serious misdemeanors that may result in local jail time rather than a state prison sentence.  And states vary in categorizing crimes as felonies or misdemeanors, adding even more complexity....  States also are inconsistent in the time periods covered by recidivism studies.  Most include new offenses within three to five years; others examine a much shorter time frame, such as six months to a year....

Official data also can miss counting former prisoners who break the law but go undetected.  This is why some criminologists argue that recidivism studies should include self-reports of criminal behavior and differentiate among various types of recidivism, such as violent crimes, property crimes and technical violations....

Some advocates say that using alternative factors such as employment or housing provides much better indicators of success after being released from prison. “Recidivism by itself is not a true measure of the success of reentry programming or of incarceration rates,” said Ann Fisher, the executive director of Virginia CARES, a nonprofit organization dedicated to supporting formerly incarcerated people in Virginia. “It’s just not a true picture.”

A 2022 report from the National Academies of Sciences, Engineering, and Medicine suggests pairing recidivism rates with indicators that capture progress away from crime, such as reductions in the seriousness of criminal activity or an increased duration between release and a criminal act, known as “desistance.”  The report also recommends developing new measures of post-release success that consider factors such as personal well-being, education, employment, housing, family and social supports, health, civic and community engagement and legal involvement.

December 11, 2023 in Data on sentencing, National and State Crime Data | Permalink | Comments (1)

Notable new resoures from National Crime Victim Law Institute

Via email I received word from the National Crime Victim Law Institute about two interesting new documents the NCVLI produced to help crime victims understand and safeguard their rights.  Here are links and some explanation from the email I received:

Identifying what remedies exist for a violation of a victim’s right can seem daunting; in fact, at times it can even seem like there are no options.  To help in this process we created a new resource.  Crime Victims' Rights Enforcement & Remedies is designed to answer some frequently asked questions about what rights enforcement can look like, and possible remedies for violations.  The resource includes citations for practitioners interested in reviewing case examples from around the country. In addition, it’s imperative to have an understanding of the most common victims’ rights across the United States when representing or advocating for a victim.  Our Common Victims' Rights resource provides a brief overview of ten of the most common victims’ rights, including a short summary and citations for each.

December 11, 2023 in Procedure and Proof at Sentencing, Victims' Rights At Sentencing | Permalink | Comments (0)

December 10, 2023

Thorough account of sentencing of Michigan school shooter Ethan Crumbley to LWOP

Constitutional law now requires a juveline murderer can be sentenced to life without parole "only if the sentence is not mandatory and the sentencer therefore has discretion to impose a lesser punishment."  Jones v. Mississippi, 141 S.Ct. 1307, 1311 (2021).  Last week in Michigan brought these procedural realities into sharp relief in the sentencing of a high-profile school shooter.  This Detroit Free Press article provides a very lengthy and quite wrenching account of the sentencing and victim statements. Here are a few excerpts focused on some legal particulars:

In the end, whatever mental illness Ethan Crumbley may have, the judge concluded it did not interfere with the teen's ability to plan and carry out the deadliest school shooting in Michigan's history.

Rather, Oakland County Circuit Court Judge Kwame Rowe said in locking up the teenage killer forever, Crumbley has an obsession with violence, planned the massacre for weeks in advance, carried it out — and chose to stay alive so that he could witness the suffering and enjoy the notoriety he desired.

Mental illness, the judge noted, didn't interfere with any of that. “This started with him asking for a better gun to carry out the school shooting," Rowe said of the killer, who was sentenced to life without the possibility of parole Friday for the 2021 massacre that killed four Oxford High School students and injured seven others, including a teacher.

“He could have changed his mind (after shooting his first victim)," Rowe said in handing down the sentence. “But he didn’t. He continued to walk through the school picking and choosing who was going to die.”...

Crumbley's punishment was handed down after a day of gut-wrenching statements from grieving parents, victims who survived and traumatized students whose sense of security has forever been shattered, including a 16-year-old student who looked at the killer in court and said: "Today I want you to look at me.” Crumbley, who kept his head down nearly the entire hearing, briefly glanced up to look at the girl....

In pushing for the harshest punishment possible, Oakland County Prosecutor Karen McDonald argued Crumbley's crimes triggered a tsunami of trauma for scores of students, parents and an entire community. All of it could have been avoided, she said, but the teen chose to keep his plan a secret. "He could have disclosed that he had a gun and was planning to shoot up his school, but he did not," McDonald said.

"Today was about victims. We heard their voices," the prosecutor said. But the trauma was far more severe than what was heard in court, she said, noting the parents suffered far more than what they discussed Friday....

Crumbley pleaded guilty to murder and terrorism charges last year, admitting he planned and carried out the shooting, and meant to cause panic and fear in the school that day. In September, Rowe determined that Crumbley was eligible for a sentence of life without parole following a lengthy and emotional Miller hearing, a mandatory proceeding that helps judges decide whether juveniles should spend the rest of their lives in prison.

Meanwhile, his parents, James and Jennifer Crumbley, continue to maintain their innocence in the unprecedented case as the first parents in America charged in a mass school shooting. They are accused of ignoring their son's mental health troubles and buying him a gun instead of getting him help — the same gun he used in the November 2021 massacre.

The parents maintain they had no way of knowing their son would shoot up his school, and that the gun was safely stored. They will face separate trials in January on involuntary manslaughter charges.

December 10, 2023 in Assessing Miller and its aftermath, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (2)