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April 5, 2024

"How to Reform Correctional Mental Health Care"

The title of this post is the title of this new report authored by Stephen Eide of the Manhattan Institute.  Here the report's executive summary:

“Trans-institutionalization” refers to the shift of seriously mentally ill adults from the care of psychiatric institutions to correctional institutions.  Beginning in the 1950s, public mental health agencies have pursued the deinstitutionalization of the seriously mentally ill.  These government agencies intended to meet that goal through creating a system of community-based care to replace the asylum-based systems.  Deinstitutionalization did not succeed as planned.  Consequently, jails and prisons became the custodians of hundreds of thousands of seriously mentally ill adults who in previous eras would have been committed to an asylum.

Some dispute the magnitude of trans-institutionalization.  But no one denies the high rate of serious mental illness among the incarcerated, or that jails and prisons are poor settings in which to treat serious mental illness. Correctional mental health care now stands as one of the most important mental health care systems in the nation. Jails and prisons are legally obligated to serve the seriously mentally ill, whereas community-based systems are not. More effective community-based mental health remains an important goal to pursue.  But equally important is the reform of corrections-based systems.  Better correctional mental health care systems will benefit both community systems and the seriously mentally ill themselves.

This report will explain how corrections-based systems function.  It will place those systems in the context of debates around “jail abolition,” explain their workforce and financial challenges, and recommend the following reforms:

  1. State governments should assume more responsibility for funding jail-based mental health care.
  2. Correctional mental health systems have special responsibility to the seriously mentally ill and are justified in targeting resources accordingly.
  3. Collect, keep, and report better data.
  4. Repeal Medicaid’s Institution for Mental Diseases (IMD) exclusion.
  5. Correctional institutions should make more use of long-acting injectables during discharge.
  6. Eliminate overuse of administrative segregation (solitary confinement); do not abolish it.
  7. Do not use telehealth when reliance on onsite clinical staff is feasible.

April 5, 2024 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

April 4, 2024

"Assessing the Early Influence of the Model Penal Code’s Revised Sentencing Provisions"

The title of this post is the title of this book chapter just posted to SSRN and authored by Cecelia Klingele. Here is its abstract:

In 2017, the American Law Institute completed a 15-year revision of the sentencing provisions of the Model Penal Code. This chapter examines early indicators of the revision’s influence in the five years following its adoption.  It examines ways in which the provisions of the Model Penal Code: Sentencing (MPCS) appear to be influencing changes in law, both directly and indirectly, and concludes that the areas in which the MPCS has had the most immediate influence are those in which the Code leads, rather than follows, existing law.  This suggests that, much like the original Code, the MPCS’s most helpful contribution may be the ways in which it is able to offer new ways of approaching sentencing and correctional challenges that do not require states to dramatically alter already-existing state legislation.

April 4, 2024 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, State Sentencing Guidelines, Who Sentences | Permalink | Comments (1)

Prosecutors seek (above-guideline) sentences of at least 10 years for Crumbley parents after state manslaughter convictions

As discussed in this CNN piece, "Michigan prosecutors are asking a judge to sentence the parents of school shooter Ethan Crumbley to at least 10 years in prison, alleging they have both showed a 'chilling lack of remorse' after they were convicted for involuntary manslaughter." Here is more:

In two separate sentencing memorandums dated April 3, Oakland County prosecutors asked the judge to sentence each parent to 10 to 15 years in state prison. The prosecutors allege Crumbley’s father has repeatedly threatened Prosecuting Attorney Karen McDonald and has said “there will be retribution,” while the mother has asked to serve her sentence under house arrest in her defense attorney’s home.

James and Jennifer Crumbley were both found guilty on four counts of involuntary manslaughter in two separate trials this year for their roles in their son’s mass shooting at Oxford High School on November 30, 2021. Jurors found they were both grossly negligent in allowing their teenage son to have a gun and ignoring signs of his spiraling mental health. Ethan, who was 15 at the time, killed four classmates – Madisyn Baldwin, 17; Tate Myre, 16; Hana St. Juliana, 14; and Justin Shilling, 17 – and injured seven other people.

His parents have been behind bars since they were arrested in December 2021 at a Detroit warehouse after leading authorities on a manhunt following the school shooting. They are scheduled to be sentenced on Tuesday. Shannon Smith, Jennifer Crumbley’s defense attorney, did not comment when reached by CNN. CNN also reached out to an attorney for James Crumbley but has not heard back. Defense pre-sentencing submissions have not yet been filed on the public dockets.

In a rare move, prosecutors released excerpts of the pre-sentencing investigation reports publicly, and included statements from both defendants written after jurors found them culpable for the killings. In the prosecution’s sentencing memorandum for James Crumbley, prosecutors noted “his jail calls show a total lack of remorse, he blames everyone but himself, and he threatened the elected Prosecutor.” They also note the father has repeatedly said he is being persecuted and has referred to himself as a “martyr.”...

In the sentencing memorandum for Jennifer Crumbley, prosecutors pointed to statements she made on the stand during her trial, where she testified, “I’ve asked myself if I would have done anything differently, and I wouldn’t have.”...

In her pre-sentence report, Jennifer Crumbley acknowledged she testified she wouldn’t have done anything different but said “that is true without the benefit of hindsight that I have now.”...

Jennifer Crumbley asked that she be placed under house arrest in her defense attorney’s home, according to prosecutors.  Smith, her attorney, notified the court that Crumbley could stay in her guest house for the duration of her sentence, according to the memorandum. “Such a proposed sentence is a slap in the face to the severity of tragedy caused by defendant’s gross negligence, the victims and their families, and the applicable law that is premised on the concept of proportionate sentencing.”

Prior related post:

April 4, 2024 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (19)

Oklahoma completes execution for double murder committed 20+ years ago

As reported in this AP piece, Michael Dewayne Smith, who was "convicted of shooting and killing two people in Oklahoma City more than two decades ago, was executed Thursday morning." Here is a bit more:

After the first of three lethal drugs, midazolam, was administered, Smith, 41, appeared to shake briefly and attempt to lift his head from the gurney before relaxing. He then took several short, audible breaths that sounded like snores or gasps. Oklahoma DOC Director Steven Harpe said after the execution that Smith “appeared to have some form of sleep apnea.”

A masked doctor entered the execution chamber at 10:14 a.m. and shook Smith several times before declaring him unconscious. Smith appeared to stop breathing about a minute later. The doctor reentered the execution chamber at 10:19 a.m. and checked for a pulse before Harpe announced the time of death.

Smith was sentenced to die in the separate shooting deaths of Janet Moore, 41, and Sharath Pulluru, 22, in February 2002.

He is the first person executed in Oklahoma this year and the 12th put to death since the state resumed executions in 2021 following a nearly seven-year hiatus resulting from problems with executions in 2014 and 2015.

April 4, 2024 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (2)

April 3, 2024

"The New Trial Right as Structural Constitutional Reform"

The title of this post is the title of this notable new paper authored by Jennifer Mascott.  Here is its abstract:

The role of the judge in vacating convictions and awarding a second jury trial is an integral component of the Article III criminal jury trial right.  Scholarship has previously demonstrated that from prior to the Blackstone era, the new trial right was seen as a key facet of the jury institution rather than in tension with it.  The trial judge’s ability to vacate a conviction for a new trial was a welcome, relatively modest, and jury-protective means of addressing juror error in contrast to judicial entry of a judgment of acquittal.

This project takes prior work examining the proper contours of a judge’s role in providing a new trial a step further. It explains how, prompted by differences in constitutional structure, American practice further expanded the pre-Blackstonian era new trial right, such as by making it available in felony criminal cases in addition to criminal misdemeanor and civil jury trials.  This expansion derived in large measure from the separation of powers structure present in American constitutional law, with conviction and liability residing entirely within a separate judicial branch rather than partially under executive supervision.  Unlike its British counterpart, American practice lacked blending of the judicial role and pardon power, and federal executive pardons were less flexible as a means of commutation under American practice than British practice.  The new trial motion was an important means for judges to address unjust verdicts within the judicial branch, without reliance on the entirely separate executive.

This paper also provides a firmer foundation for some of the claims made in earlier studies of the new trial right by comprehensively canvassing references to new trials in the documentary histories of the ratification of the Constitution and the First Federal Congress.  The historical understanding of the role of new criminal jury trial motions and the standard for granting them remains vitally important in modern practice.  Evidence from the time of Blackstone up through adoption of the Federal Rules of Criminal Procedure suggests that the “interest of justice” standard to award new trials is significantly broader than that applied by several contemporary circuit courts, and the Supreme Court continues to receive recurrent petitions from both little-resourced everyday criminal defendants and well-resourced corporate defendants asking it to weigh in on the deep disparity in federal appellate review of new trial grants.

April 3, 2024 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

Encouraging homicide data as the first quarter of 2024 comes to a close

A few days ago, I received an alert from my local paper about this article reporting that "data from the Columbus Division of Police showed that the city is experiencing some of the lowest levels of violence in a decade."  According to this press piece, the biggest city in Ohio has recorded only 18 murders in this calendar year, compared to 41 at this time last year.  The article also flagged that a number of other cities have also seen significant homicide declines.  

Conveniently and encouragingly, Jeff Asher posted yesterday this new substack entry detailing that Columbus, Ohio is not alone in experiencing a significant homicide decline to start 2024.  Folks should read his full posting for lots more context and details, but here are some highlights:

[M]urder is down around 20 percent in 2024 in more than 180 cities with available data this year compared to a comparable timeframe last year (as of the moment of this piece's publication).  Murder is down 20.5 percent in 183 cities with available data through at least January, down 20.2 percent in 174 cities with data through at least February, and down 20.8 percent in 59 cities with data through at least March 20....

We could still see, and perhaps should expect to see the sample's murder decline to regress towards a more normal rate of decline as the year goes on.  It's only April and there is a ton of time left in 2024 for these figures to regress, but murder is down roughly twice as much with a sample that’s twice as large as what we had last year at this time.... Murder is down more than 30 percent at the moment in Washington DC, New Orleans, Las Vegas, Cleveland, Milwaukee, Detroit, Columbus, Nashville, Philadelphia, and I could keep going....

It's not just murder data in cities pointing to a large decline.  Shooting data from the Gun Violence Archive shows a decline of around 12 percent in terms of shooting victims through March compared to 2023.  This matches the trend of declining shootings in 20 of the 25 cities with available shooting data through at least February this year. 

As readers may recall from prior posts, 2023 saw a considerable (perhaps historic) decline in homicides in the US compared to 2022 (which had itself recorded a small decline in homicides after significant increases in homicides throughout the US in 2020 and 2021).  But the latest AH Datalytics' collection of homicide data for 2024 from a large number of US cities shows now over a 20% cumulative decline(!) in murders across the nation's cities through roughly the first quarter of 2024.  Of course, these remarkable homicide numbers could change in the months ahead, but the many hundreds of fewer murders to start 2024 is certainly something to celebrate and hope it will continue.

Though not mentioned by Asher, I will note that the notable 2023 and 2024 declines in homicide come at a time of relatively low use of the death penalty and relatively lower rates of incarceration by US standards.  The last eight or so years, as detailed in this DPIC fact sheet, have seen historically few death sentences and executions across the US for the modern capital punishment era.  Also national incarceration totals and rates have been in relative (slow) decline for about a decade, and the US likely now has its lowest total incarceration rate since the mid 1990s.  Critically, I do not think these punishment trends can in any way directly explain recent homicide declines, but I had seen some claims that the spike in homicides in 2020 and 2021 might be atributed in part to these punishment trends.  Recent homicide declines would seem to partial couner worries that recent punishment trends a chief cause past homicide increases.  And if homicide levels keep dropping at the pace we have seen in 2023 and so far in 2024, we may soon hit modern record low levels in both homicides and severe punishments in the US. 

April 3, 2024 in Data on sentencing, National and State Crime Data | Permalink | Comments (16)

April 2, 2024

"Excessive Punishment: How the Justice System Creates Mass Incarceration"

9780231212175The title of this post is the title of this new book edited by Lauren-Brooke Eisen and published this month by Columbia University Press. Eisen is Justice Program Senior Director at the Brennan Center for Justice, and this Brennan Center webpage provides this overview of the book:

Excessive Punishment contains 38 essays, by 45 contributors — practitioners, activists, academics, and thought leaders — who contributed their critical voices to highlighting the harms of the status quo and providing valuable insight into how we can move toward a criminal legal system that is smaller, more effective, and more humane.

The United States has by far the world’s largest population of incarcerated people. More than a million Americans are imprisoned; hundreds of thousands more are held in jails. This vast system has doled out punishment — particularly to people from marginalized groups — on an unfathomable scale. At the same time, it has manifestly failed to secure public safety, instead perpetuating inequalities and recidivism. Why does the United States see punishment as the main response to social harm, and what are the alternatives?

This book brings together essays by scholars, practitioners, activists, and writers, including incarcerated and formerly incarcerated people, to explore the harms of this punitive approach.  The chapters address a range of issues, from policing to prosecution, and from how people are treated in prison to the consequences of a criminal conviction.  Together, they consider a common theme: we cannot reduce our dependence on mass incarceration until we confront our impulse to punish in ways that are excessive, often wildly disproportionate to the harm caused.

Essays trace how a maze of local, state, and federal agencies have contributed to mass incarceration and deterred attempts at reform.  They shed light on how the excesses of America’s criminal legal system are entwined with poverty, racism, and the legacy of slavery.  A wide-ranging and powerful look at the failures of the status quo, Excessive Punishment also considers how to reimagine the justice system to support restoration instead of retribution.

April 2, 2024 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (14)

Various takes on how much time Sam Bankman-Fried will likely serve on his 25-year federal prison sentence

The federal sentencing of FTX founder Sam Bankman-Fried to 25 years in prison for his frauds last Thursday has already generated a lot of discussion in blog comments, in various podcasts and in numerous press pieces.  I have a number of commentaries worth checking out (and worth skipping), but I have found especially interesting some pieces exploring the question in the headline of this Fast Company article, "How much jail time will Sam Bankman-Fried actually serve?"  Here are a few other pieces in the genre:

From Bitrades, "SBF Will Likely Serve Less Than His Full 25-Year Sentence"

From Business Insider, "Sam Bankman-Fried could go to a low-security prison and get out early if he plays his cards right, prison consultants say"

From Decrypt, "SBF Sentenced to 25 Years in Prison — How Many Will He Actually Serve?"

From the New York Post, "Sam Bankman-Fried was sentenced to 25 years in prison — but how much will he actually serve?"

These pieces generally do a reasonable job explaining that SBF will get credit for the nearly eight months he has already been in jail, and also will likely get 15% off for "good time" credit, and also can get "earned time" credits thanks to the FIRST STEP Act.  But the cummulative impact of all these potential credits has clearly been added up differently by different folks as reported in the Bitrades article: "Some experts believe Sam Bankman-Fried could spend between 12.5 and 18.5 years in prison for his crimes at FTX."

Determining precisely how much time SBF "will serve" is challenging in part because the bulk of "earned time" credits from the FIRST STEP Act that he might accrue will not formally reduce his sentence, but will allow his earlier transfer from prison into home confinement.  (The USSC recently created this helpful page about "earned time" credits.)  If SBF were to leave prison, say, after 14 years, but then must be in home confinement for the next four, one perhaps could claim he "will serve" either 14 years or 18 years.  In the end, I suspect most people focus primarily on SBF's actual time spent in federal prison (and there surely will be more press about SBF leaving prison (likley in the late 2030s) than about the official end of his term (likely some time in the early 2040s).

I sense that the entire federal sentencing and correction system is still adjusting to the new realities in time "served" created by the FIRST STEP Act.  And for another SBF-inspired take on how the FSA now alters certain notions of equality in sentencing, Eric Fish has this new Hill commentary headlined "Why is Sam Bankman-Fried treated more leniently than someone facing illegal immigration charges?"

Prior related posts:

April 2, 2024 in Celebrity sentencings, FIRST STEP Act and its implementation, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

April 1, 2024

"Context Is Everything In Justices' Sentencing Relief Decision"

The title of this post is the title of this new Law360 commentary that I authored regarding the Supreme Court's work in its recent Pulsifer ruling.  Here is how the commentary starts and closes:

"Context is everything." This adage could have been a mantra for both the U.S. Supreme Court majority and the dissenters in Pulsifer v. U.S., decided March 15. Pulsifer resolved an intricate statutory interpretation issue turning on a single word in a provision of the First Step Act.  The dispute concerned how to interpret the word "and" in the FSA's expansion of the "safety valve" provision of federal sentencing law, which exempts certain drug defendants from severe mandatory minimum sentences.

According to the Pulsifer majority, the narrow context of surrounding words and the provision's function called for reading "and" to limit the safety valve.  The dissent stressed the broader context of federal sentencing reform and practices to argue that "and" should be read to loosen that valve.  In the end, some even broader contexts help account for Pulsifer's resolution and the court's division....

The court repeatedly acknowledges that there "are two grammatically permissible" ways to interpret the revised safety valve, but the government's interpretation is to be adopted because it will "function without a hitch" as it "sorts defendants for relief (or not)."  A particular vision of how Congress would want the safety valve to "function" — and especially the notion that Congress likely would not want too many defendants eligible for a sentence below mandatory minimums — provides a critical undercurrent for the majority's application of the word "and" in this context.

In notable contrast, the dissent stresses individual liberty throughout: early on, the dissent highlights that "the lives and liberty of thousands of individuals" are at issue, and the importance of interpreting laws "in favor of liberty" is stressed at the close.  For the dissent, a particular vision of the court's role in protecting individual liberty — especially given that doing so here means only that a sentencing judge will have the usual authority to "'consider every convicted person as an individual' and pick punishments that 'fit the offender and not merely the crime'" — constitutes a purpose more transcendent than figuring out what interpretation of a criminal statute may "function" better. 

In the end, then, the justices' divergent visions of the judiciary's role may best account for their divergent visions of the meaning of the word "and" in Pulsifer.  The majority, comfortable having the court serve as a kind of agent of Congress, excogitated an interpretation of "and" that ensures not too many defendants "escape from otherwise applicable mandatory minimums."  The dissent, believing the court's work should always advance how a "free nation operates against a background presumption of individual liberty," castigates the majority for adopting "an interpretation that restricts safety-valve relief to thousands more individuals."  And these divergent visions are sure to influence how these justices interpret other words in other statutes in the future.

April 1, 2024 in Mandatory minimum sentencing statutes, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Lots of (little?) news and updates from the US Sentencing Commission

This morning I received an email from the US Sentencing Commission with some items that seemed blogworthy:

Meeting Rescheduled

Notice of Public Meeting

The Commission has rescheduled its last public meeting of the 2023-2024 amendment year for April 17 at 1:30 pm (ET).  At the meeting, Commissioners may vote to promulgate amendments to the federal sentencing guidelines. The meeting will be held in the Thurgood Marshall Federal Judiciary Building and will be streamed live.

New Data

IDA and JSIN Updates

The Commission has updated the Interactive Data Analyzer (IDA) and Judiciary Sentencing Information (JSIN). IDA now offers a brand new section presenting information on the prior convictions of individuals sentenced in the federal system. Visitors can also explore new data by the economic crime subtypes found under §2B1.1.

As previously noted in this post, the USSC had initially scheduled its concluding public meeting of the 2023-2024 amendment cycle, which includes "Vote to Promulgate Proposed Amendments," for April 10.  But now we have to wait another week to see if we get a vote on an acquitted conduct amendment and perhaps others from the Commission.

In the meantime, federal sentencing data junkies have the USSC's FY24 First Quarterly Data Report to check out, and this is a "preliminary data report [that] reflects information received on individuals sentenced through the first quarter of fiscal year 2024 (October 1, 2023 through December 31, 2023)."  My too-quick review of the data suggested that there are not big surprises (save perhaps a little dip in the total number of cases sentenced).

April 1, 2024 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (3)

New and notable BOP data on relative success of the CARES home confinement cohort

This new Forbes piece by Walter Pavlo, headlined "Bureau Of Prisons Releases Encouraging Study On CARES Act," reports on new data from BOP showing the extremely low recidivism rae for those moved from federal prison into home confinement during the pandemic. Pavlo provides some of the context and key findings for this BOP report:

Congress passed the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) on March 25, 2020 just as the pandemic reached the United States. CARES Act allowed individuals in federal correctional facilities who were a Low or Minimum security risk with underlying health conditions to serve their sentence in home confinement earlier than they would have been eligible for without the CARES Act.

Prior to the CARES Act, the Federal Bureau of Prisons (BOP) allowed inmates to serve 10% of their sentence imposed, up to a maximum of 6 months, on home confinement as part of completing their sentence.  This program too is a success and allows inmates of all security levels to transition back into society.  Many of those in federal custody, about 90%, will eventually be released from custody. Transition back to society is an important part of the corrections process.

The BOP has now completed a study on the inmates who were transferred to home confinement under CARES Act and the results are encouraging. In a press release from the BOP, it stated, “These findings suggest that the CARES Act’s provision for early and extended home confinement did not negatively impact recidivism rates. In fact, it may have contributed to a reduction in post-release recidivism, offering a promising direction for justice-involved stakeholders seeking effective strategies to reduce incarceration and its associated costs, while also promoting public safety and successful reintegration into society.”...

The BOP has the policies to move more Minimum and Low security inmates back into society sooner. Under the Second Chance Act, signed by George W. Bush, inmates can be placed on prerelease custody for up to a year of their sentence. Prerelease custody includes halfway house and home confinement.  However, the BOP has struggled recently with halfway house capacity, leaving many of inmates in institutional prisons far longer than necessary.  This problem of shortages of halfway house space is problematic because the First Step Act allows inmates to earn credits toward additional home confinement based on the time served.  The maximum amount of time an inmate can earn each month is 15 days per month but there is no limit to the amount of credits that can be earned over the term of incarceration.  This means that inmates in the future could be on home confinement for years....

The study found that overall, the use of the CARES Act to send individuals to home confinement sooner and for longer periods did not have an apparent negative impact on their recidivism rates compared to others in home confinement. Results indicate that while in home confinement individuals with a CARES assignment fail no more or less than comparable persons in home confinement.  And those with a CARES assignment fail less often than comparable persons after release.

This study matters because there are currently 78,000 out of roughly 156,000 inmates who are minimum and low security inmates in federal prison. Supervision of inmates in home confinement is significantly less costly for the BOP than housing inmates in secure custody.  According to a Federal Register report on the CARES Act, in Fiscal Year (FY) 2019, the cost of incarceration fee (COIF) for a Federal inmate in a Federal facility was $107.85 per day; in FY 2020, it was $120.59 per day.  In contrast, according to the Bureau, an inmate in home confinement costs an average of $55 per day — less than half of the cost of an inmate in secure custody in FY 2020.  Although the BOP’s decision to place an inmate in home confinement is based on many factors, where the BOP deems home confinement appropriate, that decision has the added benefit of reducing the expenditures.  Such cost savings were among the intended benefits of the First Step Act.

The BOP intends to build on the information from this study and others on home confinement.  Prisons remain crowded and many inmates are serving longer sentences in expensive institutions than are necessary.  Home confinement, which is a major benefit to both inmates and tax payers, is a big part of the First Step Act.  Whether the BOP can fully implement the program to get inmates out of prisons and into the community faster remains a challenge.

April 1, 2024 in Criminal Sentences Alternatives, Data on sentencing, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (0)

March 31, 2024

"Shocking Sentences"

The title of this post is the title of this new article authored by John B. Meixner Jr. now available via SSRN. Here is its abstract:

Harsh recidivist sentencing penalties, like three-strikes laws, have been criticized heavily among both academics and practitioners on a number of different grounds.  Most arguments focus on how sentences arising from these penalties are disproportionate — that there is no sensible relationship between the wrong committed and the sentence imposed. Those critiques are valid, but there’s another important problem with recidivist sentencing penalties that has been overlooked: they lead to sentences that are totally unexpected — indeed, shocking — to the defendants who face them. Many recidivist sentencing penalties cause large leaps in sentencing exposure that amount to exponential growth when compared with a defendant’s prior sentences.

We can better understand the problem of shocking sentences (and how to solve it) by understanding the psychological phenomenon that likely causes it: the exponential growth bias.  Across a number of domains, people making quantitative decisions tend to presume linear growth will occur, even in light of evidence that the growth is exponential.  I argue that this phenomenon happens in sentencing as well, and explains — at least in part — why defendants don’t anticipate these types of sentences.

Understanding the psychological underpinning of shocking sentences helps us understand why they are harmful: they undermine due process and predictability in the law, they limit potential deterrence, and they’re out of line with everyday intuitions about sentencing.  Flatly, they’re bad sentencing policy, and we should reduce them or eliminate them outright.  But even if eliminating shocking sentences is politically untenable, there may be ways to reduce the effect of the exponential growth bias.  Applying lessons learned from the psychological literature, I suggest ways to provide increased notice of recidivist sentencing provisions aimed to make them less shocking.

March 31, 2024 in Offender Characteristics, Purposes of Punishment and Sentencing, Recommended reading, Scope of Imprisonment | Permalink | Comments (7)

End-of-month round up of all sorts of stories and commentaries

March madness has been something of a work reality for me with all sorts of events and travel keeping me from fully keeping up with all the sentencing and criminal justice news of the month.  (The distractions of great March sports, from golf to college basketball to (fantasy) baseball, are also part of this story.)  As regular readers know well, my not-so-clever trick for catching up here on blog-worthy stories and commentaries is through a big round-up post.  So:

From the ABA Journal, "Eighth Amendment: 5th Circuit rules for prisoner allowed to sleep no more than 3.5 hours per night"

From The Atlantic by Keith Humphreys and Rob Bovett, "Why Oregon’s Drug Decriminalization Failed: The sponsors of the law fundamentally misunderstood the nature of addiction"

From the Brennan Center, "Why Inclusive Criminal Justice Research Matters"

From the Benhind the Bench Newsletter, "The Eugenics Origins of “Habitual Offender” Sentencing Laws"

From CNN by Mark Osler, "Biden’s failures in criminal justice could cost him an election"

From CNN, "The push to put Trump back in the White House is getting a boost from people he pardoned before leaving"

From the Los Angeles Times, "Days before Easter, Newsom announces dozens of pardons and commutations"

From Rick Nevin, "Young male imprisonment rates still falling in 2022, and the Sentencing Project get it wrong again"

From Newsweek by Jeff Hood, "President Biden Should Follow Through on Ending the Death Penalty"

From Newsweek by Cliff Stearns,The Death Penalty Is Important for America"

From the New York Times, "Woman Who Was Charged With Murder After Abortion Sues Texas Prosecutor"

From NPR, "Texas appeals court acquits Crystal Mason's illegal voting conviction"

From R Street by Christi Smith, "Trauma-Informed Corrections: Part Four of a Four-Part Series"

From Scientific American by the editors, "Opinion: Evidence Does Not Support the Use of the Death Penalty"

From USA Today, "'A stunning turnabout': Voters and lawmakers across US move to reverse criminal justice reform"

From WYPR News, "Judges use ‘arbitrary,’ ‘horrendous’ reasons to keep teens in adult court"

This lengthy and eclectic list of items that were piled up in my "to read" queue  do not have any clear themes and certainly do not capture the month that was.  But I hope there is something of interest for everyone, and I always welcome readers to flag additional items of interest.  With proposed sentencing guidelines and more notable SCOTUS action (and even more great sports and an eclipse here in Ohio), I am already gearing up for an exciting April.

March 31, 2024 in Recommended reading, Who Sentences | Permalink | Comments (10)