Sentencing Law and Policy

"Can Judges Help Ease Mass Incarceration?"

The title of this post is the title of this new essay appearing in Judicature authored by Jeffrey Bellin. The essaay draws from Bellin's recent book, "Mass Incarceration Nation: How the United States Became Addicted to Prisons and Jails and How it Can Recover."  Here is a section from start and from the close of this essay:

While people readily recognize the contributions of legislators, police, and prosecutors to incarceration rates, the role played by judges is obscured by a variety of factors.  One obscuring factor is that the American criminal justice system is not a system at all, but the illusion of a system generated by the interconnected decision-making of a series of independent officials, each with distinct roles.  This independent interdependence makes it hard to hold any single official actor responsible for over-incarceration.  Legislators enact criminal laws, police make arrests, prosecutors charge, and judges sentence; but each actor can point to someone else to explain why any particular individual gets locked up....

While their individual contributions can get lost in the day-to-day bureaucracy of the modern American “system,” judges play a substantial role in how many people are locked up.  And it is helpful to spotlight that role so that judges can be conscientious in assessing their contributions to the country’s incarceration rate and potential role in reducing it....

Of course, judges do not bear sole responsibility for incarceration rates. Mass Incarceration Nation highlights the role of all the officials in the criminal justice system, including legislators, police, and prosecutors, as well as the important role — spanning the book — played by a transient crime spike and the American public’s reaction to that spike. One of the book’s core arguments is that “it takes a village to send someone to prison.”  Every official actor had to cooperate to fill the nation’s prisons.  In a nutshell, that’s what happened.

But the book includes chapters on the important role played by judges.  After all, it is hardly controversial to recognize that judges matter; elevation to a judicial post is a much sought after, and properly celebrated, pinnacle of a legal career.  No one would seek the position if judges didn’t have a substantial influence on the cases that came before them.  Thus, it should be no surprise that judges played an important role in the country’s incarceration explosion.  The good news is that judges can help the country return to its historical norm of low incarceration rates. When that happens, the American criminal justice system will once again be recognized for its best features, not its bloated incarceration rate.

Feds argue in sentencing memo that "legitimate purposes of punishment require a sentence of 40 to 50 years’ imprisonment" for Sam Bankman-Fried

The federal court in the Southern District of New York is scheduled, in less than two week, to sentence Sam Bankman-Fried following his trial conviction on multiple fraud charnges.  A few weeks ago, as noted here, SBF's lawyers submitted a lengthy sentencing memo arguing that his advisory guideline range is 63-78 months that that "a sentence that returns Sam promptly to a productive role in society would be sufficient, but not greater than necessary, to comply with the purposes of sentencing."  

Unsurprisingly, federal prosecutors have a different sentencing perspective.  And, in the run-up to the March 28 sentencing, it has not filled this even longer sentencing memorandum.  The argue that SBF's guideline range is literally off the charts:

Based on the foregoing, the adjusted offense subtotal is 60.  Because any offense level in excess of 43 is treated as an offense level of 43, 43 is the total applicable offense level. (PSR ¶ 89).  The defendant’s criminal history score is zero, which puts him in Criminal History Category I. (PSR ¶ 92).  Based upon these calculations, Bankman-Fried’s advisory Guidelines imprisonment range is life. (PSR ¶ 129).  However, because the statutorily authorized maximum sentence is 110 years’ imprisonment, which is less than life imprisonment, the applicable Guidelines sentence is 110 years’ (1,320 months) imprisonment. U.S.S.G. §§ 5G1.1(a), 5G1.2(d)

Notably, though, federal prosecutors do not ultimately advocate for a sentence of imprisonment for 110 years for SBF.  As explained at the end of its preliminary statement, the feds think that less than half of this term will do the trick:

The scope, duration, nature, and sheer number of Bankman-Fried’s crimes, the resulting harm they have caused, the willful disregard of the rule of law, and the absence of countervailing mitigating circumstances render him exceptionally deserving of a sentence that is sufficiently severe to provide justice for the defendant’s crimes and to dissuade others from committing similar crimes, and that will permit the defendant to return to liberty only after society can be assured that he will not have the opportunity to turn back to fraud and deceit.  Although it is unlikely (but not impossible) that the defendant will work in finance again, and will likely forfeit all of his ill-gotten gains, justice requires that he receive a prison sentence commensurate with the extraordinary dimensions of his crimes.  For these reasons, the legitimate purposes of punishment require a sentence of 40 to 50 years’ imprisonment.

Because a "split the difference" approach often serves as a reasonable first guess for a contested sentencing outcome, I am tempted to put the over/under for an imprisonment term here at 25 years.  I am not familiar enough with Judge Lewis Kaplan's sentencing history to make a bolder prediction; folks in the comments are certainly welcome to do so.

Prior related posts:

• You be the judge: what federal sentence for Sam Bankman-Fried after guilty verdict on seven criminal fraud counts? 
• Some early chatter and speculation about Sam Bankman-Fried's coming federal sentencing 
• Should a bounce in crypto markets mean a much lower federal sentence for Sam Bankman-Fried? 
• Lawyers for Sam Bankman-Fried in lengthy memo request "a sentence that returns Sam promptly to a productive role in society"
• Some notable developments and commentary on Sam Bankman-Fried's coming sentencing

In notable 6-3 split, SCOTUS rules in Pulsifer that "and" means "or" for application of FIRST STEP safety valve

The Supreme Court this morning handed down its opinion in the sentencing case of this Term I have been watching most closely to date, Pulsifer v. United States, a statutory interpretation matter dealing with a (too) complicated sentencing provision of the FIRST STEP Act.  The Court ruled for the government in an unusual 6-3 split (though a division that was somewhat foreshadowed by the oral argument way back onthe first day of this Term).  Specifically, Justice Kagan authored the opinion for the Court, while Justice Gorsuch filed a dissenting opinion joined by Justices Sotomayor and Jackson.  Here is how the Court's lengthy opinion (available here) gets started: 

The “safety valve” provision of federal sentencing law exempts certain defendants from mandatory minimum penalties, thus enabling courts to give them lighter prison terms.  To qualify for safety-valve relief, a defendant must meet various criteria, one of which addresses his criminal history.  That criterion, in stylized form, requires that a defendant “does not have A, B, and C” — where A, B, and C refer to three ways in which past criminality may suggest future dangerousness and therefore warrant a more severe sentence.  In brief (with details below), A, B, and C are “more than 4 criminal history points,” a “3-point offense,” and a “2-point violent offense.”

The question presented is how to understand the criminal-history requirement. The Government contends that the phrase “does not have A, B, and C” creates a checklist with three distinct conditions.  On that view, a defendant meets the requirement (and so is eligible for safety-valve relief ) if he does not have A, does not have B, and does not have C.   Or stated conversely, a person fails to meet the requirement (and so cannot get relief ) if he has any one of the three.  The petitioner here instead contends that the phrase “does not have A, B, and C” sets out a single, amalgamated condition for relief.  On his reading, a defendant meets the requirement (and is eligible for relief ) so long as he does not have the combination of A, B, and C.  Or put conversely, he fails to meet the requirement (and cannot get relief ) only when he has all three.  Today, we agree with the Government’s view of the criminal-history provision.

Justice Gorsuch's dissent, which runs even longer than the Court's opinion, kicks off:

The First Step Act of 2018 may be “‘the most significant criminal justice reform bill in a generation.’” Brief for Sen. Richard J. Durbin et al. as Amici Curiae in Terry v. United States, O. T. 2020, No. 20–5904, p. 9.  Through the 1980s and 1990s, Congress adopted an ever-increasing number of ever-longer mandatory minimum prison sentences.  In part due to these policies, the federal prison population grew by more than 100% in less than a decade.  In the First Step Act, Congress sought to recalibrate its approach.  It did so by promising more individuals the chance to avoid one-sizefits-all mandatory minimums and receive instead sentences that account for their particular circumstances and crimes.

This dispute concerns who is eligible for individualized sentencing and who remains subject to mandatory minimums after the First Step Act.  Before the Act, a defendant seeking to avoid a mandatory minimum had to satisfy five stringent statutory tests.  After the Act, all those tests remain, only the first is now less demanding.  As revised, it provides that a defendant may be eligible for individualized sentencing if he “does not have” three traits: (A) more than 4 criminal history points, (B) a 3-point offense, and (C) a 2-point violent offense.  In lower court proceedings, the government admitted that this new test is “most natural[ly]” read to mean what it says: A defendant may be eligible for individualized sentencing unless he possesses all three listed traits — A, B, and C. Brief for United States in No. 19–50305 (CA9), p. 7 (Government CA9 Brief ); id., at 10–11; accord, Brief for United States in No. 21–1609 (CA8), p. 11 (Government CA8 Brief ).  Despite its admission, however, the government urges us to adopt a different construction. It asks us to read the First Step Act as promising a defendant a chance at individualized sentencing only when he does not have any of the three listed traits — A, B, or C.

If this difference seems a small one, it is anything but.  Adopting the government’s preferred interpretation guarantees that thousands more people in the federal criminal justice system will be denied a chance — just a chance — at an individualized sentence.  For them, the First Step Act offers no hope.  Nor, it seems, is there any rule of statutory interpretation the government won’t set aside to reach that result.  Ordinary meaning is its first victim.  Contextual clues follow.  Our traditional practice of construing penal laws strictly falls by the wayside too. Replacing all that are policy concerns we have no business considering.  Respectfully, I would not indulge any of these moves.

Though I will need some time to read and re-read these opinions before having firm thoughts, this ruling serves as still more evidence that SCOTUS is no longer one of the most pro-defendant sentencing appeals courts.  I got in the habit of making this point for a number of years following the Apprendi/Blakely/Booker line of rulings during a time when most federal circuit courts were often consistently more pro-government on sentencing issues than SCOTUS (sometimes led by Justice Scalia or Justice Stevens or Justice Kennedy reversing circuit rulings for the government).  But we are clearly in a different time with different Justices having different perspectives on these kinds of sentencing matters.

"Toward a Better Criminal Legal System: Improving Prisons, Prosecution, and Criminal Defense"

The title of this post is the title of this new piece available via SSRN from David A. Harris.  Here is its abstract:

During the Fall 2023 semester, 15 law (Outside) students from the University of Pittsburgh School of Law and 13 incarcerated (Inside) students from the State Correctional Institution – Greene, in Waynesburg, Pennsylvania, took a full semester class together called Issues in Criminal Justice and Law.  The class, occurring each week at the prison, utilized the Inside-Out Prison Exchange pedagogy, and was facilitated by Professor David Harris.  Subjects include the purposes of prison, addressing crime, the criminal legal system and race, and issues surrounding victims and survivors of crime.  The course culminated in a Group Project; under the heading “improving the criminal legal system,” students selected the topics of improving prisons, improving prosecution, and improving criminal defense.  The frame of “improving” these aspects of the system marked a deliberate choice; while many members of the class argued that the system as a whole or particular parts of it were beyond redemption, the task was to find ways to address the most egregious shortcomings as the systems currently exist.

This paper represents the ideas and approaches that all of the members of the class proposed, explored, and hammered out across weeks of work together.  Were all of the suggestions here to be implemented, the class concedes that the system would not be even close to perfected.  But the class believes these suggestions would result in considerable improvement, a more humane system, and a greater degree of fairness.

Prison Policy Initiative releases tenth edition of its flagship report, now "Mass Incarceration: The Whole Pie 2024"

It is pi day, which for the last decade has meant a special treat for sentencing fans and criminal justice data fans: the Prison Policy Initiative's latest, greatest version of its amazing incarceration "pie" graphic and associated report. The latest report "Mass Incarceration: The Whole Pie 2024" provides a spectacular accounting of the particulars of who and how of incarceration in the United States. As I have said in the past, the extraordinary "pies" produced by PPI impart more information in a few images than just about any other single resource I know about (and this PPI press release has the main visual and other highlights). Here is part of this latest pie report's introductory text and  overview (links and format from the original):

The various government agencies involved in the criminal legal system collect a lot of data, but very little is designed to help policymakers or the public understand what’s going on. The uncertainty that results muddies the waters around our society’s use of incarceration, giving lawmakers and lobbyists the opportunity to advance harmful policies that do not make us safe. As criminal legal system reforms become increasingly central to political debate — and are even scapegoated to resurrect old, ineffective “tough on crime” policies — it’s more important than ever that we get the facts straight and understand the big picture.

Further complicating matters is the fact that the U.S. doesn’t have one criminal legal system; instead, we have thousands of federal, state, local, and tribal systems. Together, these systems hold over 1.9 million people in 1,566 state prisons, 98 federal prisons, 3,116 local jails, 1,323 juvenile correctional facilities, 142 immigration detention facilities, and 80 Indian country jails, as well as in military prisons, civil commitment centers, state psychiatric hospitals, and prisons in the U.S. territories — at a system-wide cost of at least $182 billion each year.

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

While this pie chart provides a comprehensive snapshot of our correctional system, the graphic does not capture the enormous churn in and out of our correctional facilities, nor the far larger universe of people whose lives are affected by the criminal legal system. In 2022, about 469,000 people entered prison gates, but people went to jail more than 7 million times. Some have just been arrested and will make bail within hours or days, while many others are too poor to make bail and remain in jail until their trial. Only a small number (about 102,700 on any given day) have been convicted, and are generally serving misdemeanors sentences of under a year. At least 1 in 4 people who go to jail will be arrested again within the same year — often those dealing with poverty, mental illness, and substance use disorders, whose problems only worsen with incarceration.

US Sentencing Commission releases latest "compassionate release" data through Sept 2023

The US Sentencing Commission has now released its very latest data on sentence reduction motions on this webpage, which also includes additional graphics and context about court dispositions of what are typically known as "compassionate release" motions.  This Fiscal Year 2023 data run includes information through September 2023 (which is technically before the Commission's new guideline became law, but after it had been submitted to Congress).

As I have noted before, the long-term data going back to the height of the COVID pandemic period reveals, unsurprisingly, that we now see in FY 2023 many fewer sentence reduction motions filed or granted.  Though there are month-to-month variations, it would be roughly accurate to say that an average month of FY 2023 had a few dozen compassionate release motions granted and a few hundred of these motions denied nationwide.  In will be interesting to see if the relatively stable monthly patterns here change in any significant way in FY 2024 when the Commission's new guideline became the new law of the land (as of November 2023).

As I have noted before, among the striking stories in these data are the variations in application and grant rates from various districts.  As one example from the FY 2023 data, the Eastern District of Michigan granted half of a small number of sentence reduction motions (5 of only 10), whereas the Western District of Michigan granted none of a large number of sentence reduction motions (0 of only 60).  Similarly, the Northern District of Illinois granted nearly half of these motions in FY 2023 (13 of 27), whereas the Central and Southern District of Illinois each granted only one such motion out of a pool of 44 motions. 

There are all sorts of other interesting data points in this new report.  For example, it seems that a distinctively larger number of drug defendants secured sentencing reductions in FY 2023 (making up roughly 60% of the reduction grants while comprising only roughly 45% of the federal prison population).  Also, reasons reported by judges for granting these motions are also intriguing.

You be the judge: what state sentence for "Rust" movie armorer convicted of manslaughter in fatal shooting

As detailed in this AP article, state sentencing in a high-profile "Hollywood" case is now scheduled for next month.  I am interested to hear what folks might consider the appropriate sentece based on these facts:

A judge has scheduled sentencing next month for a movie set armorer convicted of involuntary manslaughter in the fatal shooting of a cinematographer by Alec Baldwin on the set of the Western film “Rust,” court records indicated Wednesday.

Armorer Hannah Gutierrez-Reed was convicted by a jury last week in the shooting on the outskirts of Santa Fe, New Mexico, during a rehearsal in October 2021.  Baldwin was indicted by a grand jury in January and has pleaded not guilty to an involuntary manslaughter charge, with trial set for July.

Santa Fe-based Judge Mary Marlowe Sommer set aside two hours for Gutierrez-Reed’s sentencing hearing on the morning of April 15....  Involuntary manslaughter carries a felony sentence of up to 18 months in prison and a $5,000 fine. Gutierrez-Reed is being held pending sentencing at the Santa Fe County Adult Detention Facility.

Baldwin was pointing a gun at cinematographer Halyna Hutchins when the revolver went off, killing Hutchins and wounding director Joel Souza.  Baldwin has maintained that he pulled back the gun’s hammer, but not the trigger.

Prosecutors blamed Gutierrez-Reed at a two-week trial for unwittingly bringing live ammunition onto the set of “Rust” where it was expressly prohibited.  They also said she failed to follow basic gun-safety protocols.

“Rust” assistant director and safety coordinator Dave Halls last year pleaded no contest to negligent handling of a firearm and completed a sentence of six months unsupervised probation.

Latest issue of Federal Sentencing Reporter now (partially freely) available

This new latest issue of the Federal Sentencing Reporter includes a number of pieces on alternatives to incarceration, which I have described as a topic that seems at once forgotten and yet ever-present in the federal sentencing system.  FSR's publishers have graciaiously agree to make some of the materials in this new issue free to download for a limited time.  Since I help edit FSR, I view all the pieces in this new issue as "must reads," though folks may be especially interested in FSR's reprinting of notable speeches by US Sentencing Commission Chair Judge Carlton W. Reeves and BOP director Colette Peters which were delivered at the Center for Justice and Human Dignity’s October 2023 Summit “Rewriting the Sentence II.”

My brief introduction to this FSR issue, which is titled "A New Alternatives Agenda for the U.S. Sentencing Commission?," starts this way:

Data from the U.S. Sentencing Commission indicate that over a third of all sentenced federal defendants have no criminal history and that the vast majority of federal sentencings are for nonviolent offenses.  These realities might lead one to expect a significant number of federal sentences to involve alternatives to imprisonment, particularly given Congress’s instruction to the Commission that the sentence guidelines should ‘‘reflect the general appropriateness of imposing a sentence other than imprisonment in cases in which the defendant is a first offender who has not been convicted of a crime of violence or an otherwise serious offense.’’  But, in fact, over nine of every ten federal sentences involve a term of imprisonment; nearly all federal sentencings focuses on how long a defendant will be sent to prison, not whether he could be adequately punished without imprisonment.

Masschusetts Gov announces plans for mass pardon of all misdemeanor marijuana possession convictions in state

As repotted in this local article, Masschusetts "Gov. Maura Healey on Wednesday unveiled plans to pardon all people convicted of simple marijuana possession in Massachusetts." Here is more:

Her pardon was met with a round of applause from state elected officials, criminal justice reform advocates, people impacted by simple possession convictions and members of law enforcement who joined Healey for the announcement on the grand staircase steps inside the Massachusetts State House.  Though the exact number is unknown, Healey's office said the pardon could affect "hundreds of thousands" of people in Massachusetts.

Healey's pardon forgives all state court misdemeanor convictions for possession of marijuana before March 13, 2024. It does not apply to charges of distribution, trafficking, or operating a motor vehicle under the influence. Healey said the pardon will be automatic for most people, but those who need proof of the pardon before their record is updated or believe they may have been passed over can apply through an online form.  The plan still needs sign-off from the Governor's Council, the elected eight-member body that approves pardons and judicial confirmations.

Healey said the decision was about equity, noting that communities of color have been disproportionately targeted by law enforcement for drug possession. A 2016 report from the ACLU of Massachusetts found that while Black people represented only 8% of the state's population, they comprised 24% of marijuana possession arrests. "We can be certain that this pardon will redress some of the harm those disparities have caused in Massachusetts and we'll continue to do all that we can to eliminate racial injustice throughout our systems," Healey said.

Middlesex District Attorney Marian Ryan said the move is a prime example of how the state has been reforming the criminal justice system. “We've been working really hard in Massachusetts to be much more thoughtful about how can we really be smart about preserving public safety, but at the same time lessening the impact of the criminal system on people's lives," Ryan told WBUR. "And being able to do this is an important part of that.”

Healey in her 2022 campaign for governor had promised to pardon state convictions for simple marijuana possession. This week's announcement came after President Biden ordered pardons for people with federal simple possession convictions, and encouraged governors across the country to do the same.

People in Massachusetts are already able to expunge certain marijuana-related convictions after a landmark 2018 criminal justice reform law. But advocates criticize the process as bureaucratic and inaccessible, and multiple reports find it's rarely used. Past marijuana convictions and charges — even charges that were eventually dismissed — can show up on background checks, making it hard for those affected to secure jobs or housing....

Several members of the Governor's Council stood behind Healey during her announcement Wednesday. "It's the right thing to do," council member Paul DePalo said after the speech. "I can't speak for the other members but I do know that I'm not the only one who's enthusiastic about this." The Governor's Council is set to meet again at the end of the month.

An official press release from the Governor's office, titled "Governor Healey Announces Nation-Leading Effort to Pardon Marijuana Possession Misdemeanor Convictions," is available at this link.  In addition, the Governor’s Office has made available this FAQ about this proposed pardon plan. 

On Pulsifer watch again after SCOTUS indicates opinions are coming to close this week.

Regular readers likely recall that I have been watching closely the Supreme Court sentencing case of Pulsifer v. United States, a statutory interpretation matter dealing with a (too) complicated sentencing provision of the FIRST STEP Act.  A resolution of the issue in Pulsifer — which can be imperfectly summarized as a question of whether "and" means "and" or "or" in the context of the Act's expansion of the safety-value mandatory minimum exception — has long been needed and has been a long time coming.

Pulsifer was argued before SCOTUS back in early October 2023 on the very first day of its current Term, and it is relatively rare for a lower-profile case from the start of the Term to still be unresolved by now.  That said, the Justices have been notably slow to issue opinions this Term, and all sorts of emergency matters have surely impacted their usual work flow.   Still, today the SCOTUS hopepage includes a notice that the "Court may announce opinions on Friday, March 15."  This is Court-speak alerting us to the fact that they will hand down at least one opinion (and likely more) Friday morning at 10am, though how many and which one are still matters for speculation.

The last time I was on Pulsifer watch, in early February, I correctly speculated it was likely a bit too soon to expect an opinion given that the oral argument in Pulsifer suggested a divided court, with at least a couple Justices appearing to have strong views on each side of the case.  That reality might still caution against getting hopes up for the Pulsifer opinion this Friday.  Also, though long in coming, there is no obvious time urgency to Pulsifer that might lead the Justices to want to relese this opinion on a Friday rather than just wait until the following week.  But with so much work ahead for the Justices, perhaps the Ides of March might prove to be just the right time for this ruling.  As the Bard of Avon migh caution: "beware."

A few prior related posts about SCOTUS Pulsifer case:

• SCOTUS grants certiorari to review reach of FIRST STEP Act's expansion of statutory safety valve 
• Top-side SCOTUS briefs in Pulsifer address FIRST STEP Act's expansion of statutory safety valve 
• Reviewing the big little and/or case, Pulsifer v. US, that will kick off the new Supreme Court Term
• On first Monday in October, another round of previews for SCOTUS's starting sentencing case, Pulsifer v. US 
• Rounding up some accounts of lengthy SCOTUS oral argument in Pulsifer safety valve case
• With possible opinions this week, might SCOTUS soon answer if "and" means "or" in Pulsifer safety valve case?

"An Overview of Intermittent Confinement and Weekend Incarceration in the U.S."

The title of this post is the title of this research document now available via SSRN that I helped with through the Drug Enforcement and Policy Center along with Peter Leasure and Jana Hrdinova. Here is its abstract:

In the current study, we provide an overview of federal law on intermittent confinement, present data on the use of intermittent confinement in the federal system and weekend incarceration in the state system, discuss existing research on intermittent confinement and weekend incarceration, and present results of a survey of federal probation officers on their opinions of intermittent confinement.  Overall, the results of the study indicated that intermittent confinement and weekend sentences are rarely used in federal and state systems (relative to traditional incarceration sentences). Additionally, we found that a single federal district (Texas West) accounted for the majority of federal intermittent confinement cases across several years of data.  Results of the survey of federal probation officers showed that logistical issues with intermittent confinement and incarceration facility availability may be a cause for low numbers of intermittent confinement sentences.  The finding about logistical issues with intermittent confinement was consistent with previous research.  Informed by these findings, directions for future research are discussed in detail.

A "ratchet ... not a pendulum"?: taking stock of latest round of criminal justice reforms

USA Today has this notable lengthy new piece reviewing recent criminal justice reforms that are taking a tougher approach to crime and punishments.  The piece, which i recommend in full, is headlined "'A stunning turnabout': Voters and lawmakers across US move to reverse criminal justice reform."  Here are some excerpts, along with a closing quote that informs the title of this post:

Less than four years after George Floyd's murder sparked a mass awakening to the inequities of the criminal justice system, political leaders across the country are returning to a tough-on-crime approach. In some cases, voters and lawmakers are opting to reverse reforms passed years ago.

San Francisco voted Tuesday in support of two propositions that give more power to police and require addiction treatment as a condition for welfare assistance. D.C. Council members also passed a package of public safety measures Tuesday, including bringing back "drug-free zones." The Tuesday votes follow movements to roll back reforms in Louisiana and Oregon.

"It's a stunning turnabout, especially so soon after the wave of national protests against the system for being too harsh," says Adam Gelb, President and CEO of the nonpartisan think tank Council on Criminal Justice. Though the 50-year-pattern of reform and restrictions for may seem like we are headed back to highly punitive policies, Gelb said that isn't the full picture. "I think there's very little chance that we return fully to the notion that we can arrest and punish our way to safety."

Gelb said the pattern like a pendulum swinging between restriction and reform starts as early as the 60s when a wave of reform led into a spike in crime in the 70s. The 80s brought in the crack crisis and a "get tough era," Gelb said. Over the next three decades, mandatory sentencing, a boom in prison development and harsher drug enforcement tactics led to a ballooning in the prison population....

Efforts to reduce those populations had bipartisan support, as can be seen by the 2018 First Step Act to improve criminal justice outcomes while keeping crime low, which former President Donald Trump signed into law. But even before that, the Pew Trust reported that more than 30 states had passed laws to reduce the prison populations between 2007 and 2017....

While national data on crime rates is notoriously difficult to track, statistics collected and analyzed from cities across the U.S. show a spike of violent offenses and drop in property crime during the pandemic. But that data, compiled by the CCJ, suggests that most types of crime are reverting back towards pre-pandemic levels. Gelb said the goal should actually be the recent lows in 2014, before the death of Michael Brown in Ferguson, Missouri further ruptured public trust in police....

Gelb also says that even though this wave of tough-on-crime laws may seem like that pendulum is headed back to that era, he doesn't think it will be that extreme. "It is a ratchet. It's not a pendulum," Gelb said. "They're not going back to the way it was before. They're shaving off the most aggressive edges and dialing things back rather than completely rejecting a balanced approach."

I largely agree with the notion that recent reforms represent more of a racheting back rather than a major pendulum swing.  In the 1980s and 1990s, it was quite common to see significant "tough on crime" legislation pass every two years in the run-up to major elections, but that trend abated in recent decades and seems unlikely to return in full form.  Notably, in this new Hill commentary, Austin Sarat predicts that "Crime and the fear of crime will play a prominent role in the 2024 presidential campaign."  But I sense that Donald Trump is going to talk far more about what he calls "migrant crime" than about reversing reforms like the First Step Act that he signed and helped to get passed through Congress. 

Notably, after what appears to have been a historic decline in homicides nationwide in 2023, the homicide data over the first few months of 2024 have been even more enouraging in cities like Chicago, New York, Philadelphia and even Washington DC (which had an awful 2023).  If homicides and other crimes keep trending down, it seems likely that other issues will be at the center or more political talk and action. 

Another look at the challenges prisons face with an aging prison population

NPR has this lengthy new story about an "old" problem for prisons as they figure out how best to deal with an aging prison popultion.  I recommend the full piece, which is headlined "The U.S. prison population is rapidly graying. Prisons aren't built for what's coming."  Here are excerpts:

Prison is a difficult environment, and people behind bars tend to age faster than people on the outside.  For that reason, "geriatric" in prison can mean someone as young as 50, though it varies by state.  Any way you define it, the U.S. prison population is getting grayer — and fast.

The proportion of state and federal prisoners who are 55 or older is about five times what it was three decades ago.  In 2022, that was more than 186,000 people.  In Oklahoma, the geriatric population has quadrupled in the past two decades.  In Virginia, a quarter of the state's prisoners will be geriatric by 2030.  And in Texas, geriatric inmates are the fastest-growing demographic in the entire system.

Prison systems across the U.S. have a constitutional obligation to provide adequate health care, and they're racing to figure out how to care for the elderly in their custody — and how to pay for it....  As that population grows, he says, prisons have to adapt in all kinds of ways: making cells wheelchair accessible, accommodating prisoners who can no longer climb to an upper bunk, providing health care and food inside units when prisoners aren't mobile, installing more outlets for CPAP machines....

Today, there are more people serving a life sentence in prison than there were people in prison at all in 1970, according to a 2021 report from the Sentencing Project, an advocacy organization.

Caring for aging prisoners is expensive, but the data on just how expensive is murky.  A 2013 study estimated it could be anywhere from three to nine times more expensive than for younger prisoners.  And a 2015 report from the Justice Department's Office of the Inspector General found that federal prisons with the highest percentage of elderly prisoners spent five times more per person on medical care than those with the lowest percentage of aging prisoners.

A few (of many) older related posts:

• Examining the sources of an ever-aging US prison population
• New major report documents costs and concerns with aging prison populations
• Big new ACLU report highlights the high cost of high numbers of elderly prisoners
• "Aging Prisoners, Increasing Costs, and Geriatric Release"
• "Frail and Elderly Prisoners: Do They Still Belong Behind Bars?"
• US Sentencing Commission reports on "Older Offenders in the Federal System" 
• "Nothing but Time: Elderly Americans Serving Life Without Parole" 
• Prison Policy Initiative spotlights the "aging prison population"

A week of notable capital punishment stories

A number of capital punishment press pieces caught my eye last week, and here is a quick round up to start a new week:

From the AP, "Oklahoma panel denies clemency for death row inmate, paves way for lethal injection"

From Corrections 1, "La. expands methods of execution"

From Fox News, "Idaho serial killer survives lethal injection attempt, prompting renewed push for firing squad"

From The Guardian, "Three top nitrogen gas manufacturers in US bar products from use in executions"

From the Lexington Herald Leader, "GOP Kentucky attorney general wants to end state’s death penalty ban"

From Newswer, "Case Highlights a Quirk in Georgia's Death Penalty: The state requires intellectual disability be proved 'beyond a reasonable doubt"

From NPR, "Who performs a lethal injection in the U.S.? In some states, they're volunteers"

From Public News Service, "Racial Justice Act case could affect NC death row inmates"

From the San Francisco Chronicle, "Would Newsom’s successor reinstate California’s death penalty? Here’s what candidates said"

From the Tampa Bay Times, "On Florida’s death row, inmates often outlive the judges who sentence them"

UPDATE:  And since this post, I happened to see two more major media stories on the death penalty that seemed worth flagging:

From ABC News/AP, "Georgia readies to resume executions after a 4-year pause brought by COVID and a legal agreement"

From the New York Times, "In Death Penalty Cases, a Texas Court Tests the Supreme Court’s Patience"

"Mercy in Extremis, In-Group Bias, and Stranger Blindness"

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

Our perceptions of what we owe each other turn somewhat on whether we consider “another” to be “an other” — a stranger and not a friend.  In this essay, I examine the pronounced role that such in-group biases play in two distinct contexts.  First, in a legal order, officials tend to prioritize the norms and forms of the profession.  This institutional pride generates a lack of understanding for the actor or approach that operates beyond the bounds of the criminal legal system’s binary rules.  To the law enforcer, all becomes law and outlaw where the outlaw is a threat that must be neutered by punishment.  Second, in extremis, individuals fear outsiders and treat them, thereafter, with apathy or even outright animosity and violence.  In each context, in-group biases challenge epistemic capacities to determine appropriately when mercy and care are warranted.

To illustrate the difficulty, I interweave three case studies — one contemporary, one biblical, and one literary. I focus principally on tragic events at Memorial Medical Center in New Orleans where, in the aftermath of Hurricane Katrina, hospital staff likely euthanized acutely ill patients. I then draw upon “The Parable of the Good Samaritan” and Cormac McCarthy’s post-apocalyptic masterpiece, THE ROAD, to inform my reading of the murder case against a Memorial doctor. I argue that it is not obvious who at the medical center failed to be sufficiently “other”-regarding and, in any event, the criminal legal system is particularly ill-equipped to address the moral complexities of actions (and inactions) undertaken in extreme circumstances.  I conclude that the grand jury therefore did the right thing when it relied upon something like a “presumption of mercy” to refuse to indict the doctor.