Tuesday, July 20, 2021

"Building exits off the highway to mass incarceration: Diversion programs explained"

The title of this post is the title of this great new report authored by Leah Wang and Katie Rose Quandt for the Prison Policy Initiative. I recommend the report in full, and here is how it gets started:

Our nation’s mass incarceration crisis has led to far too many people locked up in jails and prisons.  As public outrage grows regarding the unfairness of the criminal justice system, counties and municipalities are adopting a wide range of programs that divert people out of the system before they can be incarcerated, pitching these as solutions to reduce the number of people in confinement.  But these programs are not all created equal, and the design and implementation of diversion can be wildly different in its impact on justice-involved people.

We envision the criminal justice system as a highway on which people are heading toward the possibility of incarceration; depending on the state or county, this highway may have exit ramps in the form of diversion programs and alternatives to incarceration.  Diversion is a broad term referring to any means of exiting the criminal justice system without a criminal conviction, while an alternative to incarceration can be offered to someone who has been convicted.

The further someone travels down the highway, the more collateral consequences they will experience: a police encounter that may turn dangerous; the trauma of being booked; their mugshot published on the internet; massive amounts of time spent away from work and family for jail time or court appearances; the financial burden of bail and court costs; and a criminal record that generates numerous other challenges like exclusion from the workforce, ineligibility for public benefits, disenfranchisement, and denial of the right to serve on a jury.

The earlier someone can take an exit ramp, the more devastating impacts they can avoid — and the more we can shrink the massive footprint of the criminal justice system.  This report provides a general overview of diversion and alternative-to-incarceration programs, and key differences in how they might alleviate (or complicate) someone’s experience going through the system.

In an ideal world, a community would implement all or almost all of these programs, to help divert people at every stage.  But when resources — financial or political — are limited, it is important that policymakers make choices that will have the largest impact.  While all diversions are better than incarceration, the most powerful are the earliest interventions (which we’re calling “Exit 1”) that prevent encounters with police and the criminal justice system in the first place.

July 20, 2021 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing | Permalink | Comments (0)

Monday, July 05, 2021

Asking hard (but incomplete) questions about electronic monitoring as an alternative to prison

I am glad to see that NBC News has this lengthy new article about electronic monitoring under the headline "Incarcerated at home: The rise of ankle monitors and house arrest during the pandemic." Unfortunately, the piece only scratches the surface concerning how the pandemic may have enduringly altered sentencing practices and the pros and cons of greater reliance on home confinement with electronic monitoring. I still recommend this piece, but I hope future coverage will gather more data and dig even deeper into  pandemic-era experiences on this important topic. In the meantime, here are excerpts from this lengthy NBC News piece:

During the pandemic, as jails raced to release incarcerated people because prisons became coronavirus hot spots, many judges nationwide responded by putting those who were being released in electronic ankle monitors that tracked their movements 24 hours a day.  Other people were assigned ankle monitors as an alternative to bail as they awaited trial in a backlogged court system that moved online.

Now, early data shows how much the use of electronic ankle monitoring rose nationwide during that time, according to research from Kate Weisburd, a law professor at George Washington University and a former juvenile defender. Researchers are finding that ankle monitors are keeping people connected to the prison system longer than ever, as more remain strapped to the devices for over a year.

“Everyone is looking for ways of getting people out of custody, which obviously is a good thing,” Weisburd said. “But what's happening in some jurisdictions in the adult system is that more and more people are being released on monitors as a response to decarceration.”

In Chicago, the Cook County Sheriff Office's use of ankle monitors for adults who are awaiting trial jumped from 2,600 people in April last year to over 3,500 in December, according to data from the Chicago Appleseed Center for Fair Courts, a research and civil liberties group that advocates to improve court processes and find alternatives to incarceration. Chief Adriana Morales of the sheriff’s office said in a statement that electronic monitoring is always court-ordered and confirmed that during Covid-19 there’s been a “dramatic increase” in orders for them.

Law enforcement departments that use electronic monitoring say the devices are supposed to serve as an alternative to incarceration and help people remain in their community rather than serving time in jail.  But interviews with people who have been incarcerated and then placed on ankle monitors and researchers who study recidivism say the surveillance devices hurt people trying to get their life on track after prison and that there’s no evidence the technology is rehabilitative.  They often drag adults and youth even deeper into the criminal justice system and sometimes back behind bars....

Law enforcement experts find that ankle monitors seem to work best for a targeted population, like adults who are found to be at high risk to reoffend, said Kelly Mitchell, executive director of the Robina Institute of Criminal Law and Criminal Justice at the University of Minnesota. “But for your average drug and property offenses, it’s not a good use at all.”

Mitchell said electronic monitoring can be helpful from a probation officer’s perspective when keeping track of individuals who have committed more serious offenses or violent crimes but would still benefit from being taken out of the jail system. “Electronic monitoring can provide a little bit of extra something to monitor that person for a period of time if we decide that we’re ready to give them a chance in the community,” Mitchell said.

Ankle monitors were first developed by social psychologists in the 1960s in an effort to offer positive reinforcement to juvenile offenders.  They came into use by the justice system in the 1980s and early 1990s.  While they still offer the upside of an alternative to prison or jail, they have in recent years become the focus of growing skepticism — particularly as their use has widened.  Advocates for criminal justice reform say that while ankle monitors may appear preferable for people who hope to get out of jail sooner, they don’t address systemic issues that land so many people behind bars.

“We're not putting resources into their communities to address the issues of violence, to address the issues of unemployment and poverty and structural racism,” said James Kilgore, an author and activist with the Challenging E-Carceration project at the Center for Media Justice. “Instead we’re going to slap this thing on them so we can track them, and we can keep them locked up in their house.”...

Though electronic monitoring is cheaper for municipalities and states than jail, the cost of the surveillance device is often passed on to the people wearing them.  And during the pandemic, when millions of people lost their jobs and unemployment benefits were backlogged, that cost added up.  In at least 30 states, agencies require those who are placed in an electronic monitor to pay between $2 and $20 a day to wear one, not including activation fees that some counties tack on, according to Weisburd’s research.... 

While the cost of incarceration is higher than the cost of an ankle monitor and being on house arrest for many is a better option than being in jail, in places like Chicago, the majority of people who are on electronic monitoring are awaiting trial and have yet to be convicted. But unlike other jurisdictions, Cook County does not charge offenders....

Like so many electronics, ankle monitors also don’t always work. When the electronic monitor senses a violation, whether from not being charged at the right time or when someone steps outside their house at the wrong time, the company running the monitor notifies law enforcement. Then officers may be sent to the wearer’s home or work.

With the dramatic increase of people on ankle monitors during the pandemic in Chicago, local watchdogs say they’re seeing a rise in violations for small infractions. Matthew McLoughlin, an organizer with the Illinois Network for Pretrial Justice, said he’s also seen an increase in more false violations and technical glitches for people whose ankle monitors rely on GPS tracking.

July 5, 2021 in Criminal Sentences Alternatives, Technocorrections | Permalink | Comments (1)

Friday, June 18, 2021

Spotlighting many challenges "winning the peace" after drug decriminalization reform in Oregon

As we mark 50 years waging the drug war in the United States, legal reforms and polls make clear that Americans are eager to embrace public health rather than punitive responses to drug activity.  But a growing political will to end the "war on drugs" does not instantly create a practical way forward.  Growing interest in ending the drug war makes it critical for policy markers and advocates to focus on "winning the peace" as we move beyond criminalization models.  But new NPR article, headlined "Oregon's Pioneering Drug Decriminalization Experiment Is Now Facing The Hard Test," highlights the many challenges lie ahead.  I recommend the piece in the full, and here are excerpts:

Oregonians overwhelmingly passed Measure 110 that makes possession of small amounts of cocaine, heroin, LSD and methamphetamine, among other drugs, punishable by a civil citation — akin to a parking ticket — and a $100 fine. That fee can get waived if you get a health screening from a recovery hotline.

The measure, a major victory for advocates pushing for systemic change in U.S. drug policy, expands funding and access to addiction treatment services using tax revenue from the state's pot industry as well as from expected savings from a reduction in arrests and incarceration....

But five months since decriminalization went into effect, the voter-mandated experiment is running into the hard realities of implementation. Realizing the measure's promise has sharply divided the recovery community, alienated some in law enforcement and left big questions about whether the Legislature will fully fund the measure's promised expansion of care.

Even many recovery leaders here who support ending the criminalization of addiction are deeply concerned the state basically jumped off the decriminalization cliff toward a fractured, dysfunctional and underfunded treatment system that's not at all ready to handle an influx of more people seeking treatment. Advocates for decriminalization "don't understand the health care side, and they don't understand recovery," says Mike Marshall, co-founder and director of the group Oregon Recovers. "Our big problem is our health care system doesn't want it, is not prepared for it, doesn't have the resources for it and honestly doesn't have the leadership to begin to incorporate that [expanded treatment]," says Marshall, who is in long-term recovery himself....

Oregon supporters of decriminalization point to Portugal as a reform model. In 2001, Portugal dramatically changed its approach and decriminalized all drugs. The nation began treating addiction as a public health crisis. There, anyone caught with less than a 10-day supply of any drug gets mandatory medical treatment. But Marshall and others point out that Portugal took more than two years to transition carefully to a new system and replace judges, jails and lawyers with doctors, social workers and addiction specialists. "So we put the cart before the horse," he says. In fact, Marshall and others worry the treatment and harm reduction horse isn't even on its feet in Oregon, which is leaving too many stuck in a dangerous pre-treatment limbo and at potential risk of overdosing. "There were no resources and no mechanisms in [Measure] 110 to actually prepare the health care system to receive those folks," Marshall says.

"Most places that have successfully done decriminalization have already worked on a robust and comprehensive treatment system," says Dr. Reginald Richardson, director of the state Alcohol and Drug Policy Commission. "Unfortunately, here in Oregon, we don't have that. What we have is decriminalization, which is a step in the right direction."

There's also shockingly little state data to determine what programs work best or to track treatment outcomes and share best practices. There's also no agreed upon set of metrics or benchmarks to judge treatment efficacy, both in Oregon and nationally.

Prior recent related post:

June 18, 2021 in Criminal Sentences Alternatives, Drug Offense Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Sunday, June 13, 2021

Unanimous South Carolina Supreme Court decides sex offender registry is "unconstitutional absent any opportunity for judicial review to assess the risk of re-offending"

Last week, the South Carolina Supreme Court issued an interesting opinion about the state's sex offender registry in Powell v. Keel, No. 28033 (S.C. June 9, 2021) (available here), which concludes this way:

Although we find the State has a legitimate interest in requiring sex offender registration and such registration is constitutional, SORA's requirement that sex offenders must register for life without any opportunity for judicial review violates due process because it is arbitrary and cannot be deemed rationally related to the General Assembly's stated purpose of protecting the public from those with a high risk of re-offending.  Therefore, we hold SORA's lifetime registration requirement is unconstitutional absent any opportunity for judicial review to assess the risk of reoffending. We further hold subsection 23-3-490(E) permits dissemination of the State's sex offender registry information on the internet. We hereby reserve the effective date of this opinion for twelve (12) months from the date of filing to allow the General Assembly to correct the deficiency in the statute regarding judicial review.  Nonetheless, because the circuit court has already held a hearing in this case and determined Respondent no longer poses a risk sufficient to justify his continued registration as a sex offender, Appellants shall immediately remove Respondent from the sex offender registry.

June 13, 2021 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (1)

Friday, June 11, 2021

Split Indiana Supreme Court finally rules that forfeiture of Tyson Timbs' Land Rover driven to small drug deal was constitutionally excessive

Well over two years ago, as blogged here, the Supreme Court ruled unanimously in Timbs v. Indiana, 139 S. Ct. 682 (2019), that the that Excessive Fines Clause of Eighth Amendment applies to the states and then said little else about how that limit on punishment was to be applied. Upon remand, as blogged here, the Indiana Supreme Court some months later issued a lengthy opinion explaining its approach to the Clause while remanding case to the state trial court to apply this approach. And yesterday, the case returned to the Indiana Supreme Court as Indiana v. Timbs, No. 20S-MI-289 (Ind. June 10, 2021) (available here), and resulted in a split opinion in favor of Tyson Timbs. Here is how the majority opinion starts:

We chronicle and confront, for the third time, the State’s quest to forfeit Tyson Timbs’s now-famous white Land Rover.  And, again, the same overarching question looms: would the forfeiture be constitutional?

Reminiscent of Captain Ahab’s chase of the white whale Moby Dick, this case has wound its way from the trial court all the way to the United States Supreme Court and back again.  During the voyage, several points have come to light. First, the vehicle’s forfeiture, due to its punitive nature, is subject to the Eighth Amendment’s protection against excessive fines.  Next, to stay within the limits of the Excessive Fines Clause, the forfeiture of Timbs’s vehicle must meet two requirements: instrumentality and proportionality. And, finally, the forfeiture falls within the instrumentality limit because the vehicle was the actual means by which Timbs committed the underlying drug offense.

But, until now, the proportionality inquiry remained unresolved — that is, was the harshness of the Land Rover’s forfeiture grossly disproportionate to the gravity of Timbs’s dealing crime and his culpability for the vehicle’s misuse?  The State not only urges us to answer that question in the negative, but it also requests that we wholly abandon the proportionality framework from State v. Timbs, 134 N.E.3d 12, 35–39 (Ind. 2019).  Today, we reject the State’s request to overturn precedent, as there is no compelling reason to deviate from stare decisis and the law of the case; and we conclude that Timbs met his burden to show gross disproportionality, rendering the Land Rover’s forfeiture unconstitutional.

Justice Slaughter concurs in the judgment with lengthy separate opinion that includes a notable baseball analogy while fretting that the "law we interpret for the public we serve demands more than our subjective 'totality' test can sustain."  And Justice Massa dissents with separate opinion that starts this way:

The Court offers a compelling case for letting the beleaguered Tyson Timbs keep his Land Rover after all these years.  And the opinion, much to its credit, goes the extra mile in its concluding paragraphs to note and predict that Timbs will be the rare heroin dealer able to show gross disproportionality when his car is forfeited.  Still, I respectfully dissent.

The forfeiture here was indeed harsh, perhaps even mildly disproportionate, given all the facts in mitigation.  But I part ways with the Court’s holding that it was grossly so.  Such a conclusion can only be sustained by finding the severity of the underlying felony to be “minimal,” as the Court holds today. I am skeptical that dealing in heroin can ever be a crime of minimal severity.  No narcotic has left a larger scar on our state and region in recent years, whether overly prescribed or purchased illicitly on the street.

June 11, 2021 in Criminal Sentences Alternatives, Drug Offense Sentencing, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Tuesday, June 08, 2021

"Exploring Alternative Approaches to Hate Crimes"

The title of this post is the title of this notable new lengthy report published today by the Brennan Center for Justice at NYU Law and Stanford Law School.  I received an email about the publication, which provided this overview:

Exploring Alternative Approaches to Hate Crimes” [is] a comprehensive report that assesses critiques of hate crime laws from communities of color and other targeted communities, and evaluates potential alternative approaches to respond to hate crimes more effectively.  The report addresses the harm hate crimes inflict and the limitations in keeping track of such crimes.  It finds that the current approach to hate crimes relies on increased law enforcement and imprisonment and that alternative responses centered on restorative justice and social services “may offer a way to identify and mend the unique individual and community harms caused by hate crimes, while demanding meaningful accountability for those who cause harm.”

“Our current hate crimes laws aim to recognize the profound harm to victims and their communities from crimes motivated by bias, but, as our report finds, they fall short in many ways,” said Stanford Law professor Shirin Sinnar, who along with Brennan Center Fellow Michael German, guided the policy practicum, Assessing Alternative Approaches to Hate Crimes, that compiled the report.  “Our goal with this report was to evaluate the traditional hate crime legal model, which focuses on increasing imprisonment for crimes with a proven bias motive, and explore the different approaches that local communities are now trying to counteract the injuries hate crimes inflict.”

“Hate crimes clearly remain a serious problem affecting uncounted individuals and communities across the U.S., and the law enforcement-centric approach we've employed over the last several decades has not provided satisfactory outcomes, or properly accounted for the harms,” said German.

New York City, Oakland, Calif., and other communities across the country have been trying some of the alternatives covered in Exploring Alternative Approaches to Hate Crimes. The report calls for greater investments in such programs to allow communities to experiment with methodologies that might more effectively mitigate the harms from hate crimes.

The report, put together by Stanford Law School students enrolled in the policy practicum, drew on findings from a March 2020 convening at Stanford Law School of experts in the fields of criminal law, civil rights, community advocacy and restorative justice. It also includes research from law, criminology, and other fields.  For the report, the Stanford Law School policy lab defined a “hate crime” as a criminal offense motivated by hostility against certain actual or perceived characteristics of a victim’s identity, including race or ethnicity, religion, gender, national origin, and sexual orientation, among others.

Most states and the federal government have enacted laws that create “stand-alone” offenses or impose sentence enhancements for crimes with a bias motive.  But in recent years, some community groups and racial justice advocates have questioned whether this approach relies too heavily on carceral solutions, especially through sentence enhancements, and whether current solutions sufficiently respond to the unique individual and community harms of hate crimes....

The report assessed restorative justice programs for hate crimes and social services programs for individuals and communities that are increasingly piloted across the country, both as substitutes for, or to exist alongside, the traditional legal approach.  The report found that, while challenging questions remain as to program design, restorative justice programs may offer a promising alternative to the traditional law enforcement approach to hate crimes.  It notes that “these programs should be subjected to rigorous study, to ensure they are implemented with the necessary attention to the constitutional rights of accused parties and the safety and well-being of impacted individuals and communities.

The report also found that support for social services and grant programs can be established, retooled, and better staffed and funded to ensure that individuals and communities affected by hate crimes receive adequate, culturally competent resources.  “Our work details alternative approaches that impacted communities are beginning to explore, which are designed to repair more directly the harms bias-motivated crimes inflict,” said German.  “We hope this report becomes a resource for communities looking for more effective methods of responding to hate crimes."

June 8, 2021 in Criminal Sentences Alternatives, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (0)

Sunday, May 16, 2021

"Drug Supervision"

The title of this post is the title of this notable new article authored by Jacob Schuman now available via SSRN. Here is its abstract:

Criticism of harsh drug sentencing laws in the United States typically focuses on long prison sentences.  But our criminal justice system also inflicts a significant volume of drug-related punishment through community supervision — probation, parole, and supervised release.  Over one million people are under supervision due to a drug conviction, and drug violations are among the most common reasons for revocations. In an age of “mass supervision,” community supervision is a major form of drug sentencing and drug policy.

In this Article, I show that drug sentencing is central to the federal system of supervised release.  While Congress created supervised release as a program of transitional support for former prisoners, the system has instead become a drug- control network focused on public safety.  The mandatory revocation provision at 18 U.S.C. § 3583(g) in particular was designed to immediately imprison people with drug addiction at the first sign of drug use.  This targeting of drug activity for enhanced punishment is so extreme that it violates the jury right under the Supreme Court’s 2019 decision in United States v. Haymond.

May 16, 2021 in Collateral consequences, Criminal Sentences Alternatives, Drug Offense Sentencing, Procedure and Proof at Sentencing, Reentry and community supervision | Permalink | Comments (0)

Monday, May 10, 2021

Effective review of (just some) issues surrounding home confinement for the Biden Justice Department

This new extended Hill article, headlined "DOJ faces big decision on home confinement," provide an effective accounting of the building discussion around the status of home confinement in the federal system as it appears the pandemic is winding down.  I recommend the full piece, and here are excerpts:

The Biden administration will soon have to decide whether to send back to prison thousands of inmates who were transferred to home confinement after the start of the COVID-19 pandemic.  President Biden and Attorney General Merrick Garland have been facing mounting calls to rescind a policy implemented in the final days of the Trump administration that would revoke home confinement for those inmates as soon as the government lifts its emergency declaration over the coronavirus.

Advocates and lawmakers argue that the program has been a resounding success, and that it would be unjust to reincarcerate thousands of individuals who abided by the terms of their home confinement.  “If you're one of these people, you're trying to figure out, 'Do I go back to college? Do I start a new job? Do I start a family? Do I sign a lease? I mean, what can I do, not knowing where I'm going to be in six months?’ That's cruel to keep somebody in that doubt and uncertainty for this long and to say, ‘You know, don't worry about it, it's not going to happen tomorrow,’” said Kevin Ring, president of the advocacy group Families Against Mandatory Minimums.

Last year, in response to the CARES Act, then-Attorney General William Barr directed the federal Bureau of Prisons (BOP) to prioritize home confinement for certain inmates in order to limit the spread of the coronavirus within the prison system.  According to the BOP, about 24,000 inmates have been released to home confinement since the beginning of the pandemic. Advocates say there are now about 4,500 people facing uncertainty about whether they might have to go back to prison after months of reintegrating into society.

BOP Director Michael Carvajal told a House Appropriations subcommittee in March that just 21 inmates released to home confinement were sent back to prison for alleged rule violations. And in the program overall, only one person has committed a new crime....

The uncertainty about the program’s fate began in January, a few days before President Biden's inauguration, when the Justice Department's Office of Legal Counsel issued a memo stating that under federal law, those inmates released under the CARES Act must report back to prison when the coronavirus emergency is over, unless they are nearing the end of their sentence.

Randilee Giamusso, a BOP spokesperson, said the Biden administration had recently expanded the eligibility for home confinement.  “This is an important legal issue about the language Congress used in the CARES Act,” Giamusso said in a statement.  “It is important to recognize even under the Office of Legal Counsel's (OLC) reading of the statute, the BOP will have discretion to keep inmates on home confinement after the pandemic if they’re close to the end of their sentences.  For the more difficult cases, where inmates still have years left to serve, this will be an issue only after the pandemic is over.”

Giamusso added that Biden recently extended the national emergency regarding COVID-19, and that the Department of Health and Human Services expects the public health crisis to last at least through December.  “The BOP is focused right now on expanding the criteria for home confinement and taking steps to ensure individualized review of more inmates who might be transferred,” Giamusso said.

Still, some lawmakers and advocates argue that the Trump-era policy would unnecessarily upend the lives of those deemed low-risk enough to be sent home and who have since abided by the terms of their home confinement.  Biden and Garland are facing pressure to rescind the policy memo, receiving letters from Sen. Dick Durbin (D-Ill.), the chairman of the Senate Judiciary Committee; a bipartisan group of 28 House lawmakers; and a coalition of advocacy groups....

This past week, the White House told advocates that Biden is preparing to use his clemency powers, in what would be a rare early exercise of the power to commute or pardon incarcerated people.  Ring said rescinding the home confinement policy, or using another tool to keep those affected by it out of prison, is an easy way for Biden to show that he’s serious about taking on mass incarceration.

“They've said they want to use the clemency authority more robustly to let people out of prison who don't need to be there,” said Ring, who has served time in federal prison. “Well, here's 4,500 people that Bill Barr and Donald Trump cleared as the lowest of low risk. So if you can't find a way to keep these people home, I mean, how discouraging will it be for those who are hoping for clemency?”...

Experts and advocates alike see the home confinement policy as a radical experiment that yielded positive results, potentially adding more momentum to criminal justice reform efforts that have seen a growing bipartisan consensus against the tough-on-crime policies of the late 20th century.  Ring, of Families Against Mandatory Minimums, said lawmakers should consider the success of the home confinement program as a potential alternative to incarceration.  “I think this is still a good model or a good use of natural experiment to show that we can keep more people in the community, and not keep them in prison,” he said. “Congress should use what happened here as evidence for expanding home confinement going forward.”

But in the meantime, Ring said, the priority is for the Biden administration to make clear that it does not intend to re-incarcerate those who are serving their sentences out at home. “Not only do they need to fix it, they need to fix it immediately,” he said. “They need to announce to these people, ‘You're not going back. We're not making you go back. We'll rescind the memo or we'll use some other authority we have to fix this.' But these people need to get on with their lives.”

I am grateful for this effective review of not just the COVID-driven home confinement changes, but also the broader issue of whether this unfortunate "natural experiment" justifies a robust rethinking of home confinement as an alternative punishment.  And I think that issue need to be explored even further because I surmise that home confinement can end up meaning lots of different things for lots of different persons.  And, in addition to the wonderfully low number of problems with the COVID home confinement transfers, it will be interesting and important to track long-term recidivism rates for these groups. 

Some prior recent related posts:

May 10, 2021 in Criminal justice in the Biden Administration, Criminal justice in the Trump Administration, Criminal Sentences Alternatives, Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (1)

Thursday, April 29, 2021

"Reckless Lawmaking: How Debt-Based Driver's License Suspension Laws Impose Harm and Waste Resources"

The title of this post is the title of this new ACLU research report.  Here is the start of its executive summary:

There is a growing movement by advocates, organizers, and lawmakers to address the ineffective and unfair system and collection of court ordered monetary obligations, or “fines and fees.”  The system of fines and fees is inextricably linked to over-policing, criminalization, and mass incarceration.  While it is nearly impossible to know the exact number of people charged with fines and fees on an annual basis due in part to a lack of standardized data collection policies, a recent study estimated there could be well over 30 million cases for misdemeanors, violations, and infractions punishable by fines and fees filed per year.  That number does not even include civil traffic offenses.  The punishment for such offenses may include hundreds or thousands of dollars in fines and fees.

When people cannot afford to pay their fines and fees on time, a warrant may be issued for their arrest and/ or their driver’s license may be suspended.  People arrested on such warrants are typically brought to jail and held until they can see a judge.  If they still cannot pay, the cycle of criminalization continues.  The system of fines and fees not only criminalizes poverty, but also exacerbates racial disparities in policing and prosecution.

Driver’s license suspension for failure to pay or failure to appear in court (i.e. debt-based suspension) is one of the most commonly imposed sanctions.  This penalty is particularly harmful because of the sheer number of people affected and because of the way these suspensions lead to further penalties.  The severity of the punishment far outweighs the underlying offense, which may not even be related to driving.  Currently, all but three states (Idaho, Mississippi, and Virginia) suspend for either failure to pay and/or failure to appear.  As a result, at least 11 million people are not allowed to drive simply because they cannot afford to pay fines and fees, while people who can afford to pay are spared. And the brunt of these policies falls disproportionately on people of color, contributing to existing racial disparities in the criminal legal system.

Since 2017, California, Hawai′i, Idaho, Maine, Maryland, Michigan, Mississippi, Montana, New York, Oregon, Texas, Virginia, West Virginia, and D.C. have enacted legislative reforms to curb the practice of debt-based suspensions for either failure to pay or failure to appear.  As of the publication of this report, similar legislation has been proposed in 11 additional states.  Related legislation has also been introduced at the federal level.

Proposed legislation to end the harmful practice of debt-based suspensions is often met with a challenge: overcoming fiscal notes that mistakenly predict significant negative fiscal impacts from ending debt-based driver’s license suspensions.  Fiscal notes for bills to end debt-based driver’s license suspensions tend to rely on assumptions based on imprecise data and more importantly, do not account for a number of other relevant factors that could offset the revenue generated from fines and fees such as the cost of collecting and enforcing payment.  Furthermore, fiscal notes tend to deprioritize, and in some cases ignore altogether, the toll debt-based suspensions have on people affected by this policy.

In this report we highlight the individual and systemic costs that are often ignored in these types of fines and fees reform bills.  Specifically, this report discusses the penalty of suspending driver’s licenses as a consequence for unpaid fines and fees and the devastating consequences it imposes on impacted individuals.  We also make recommendations for lawmakers to more accurately consider the value of continuing to fund government services through predatory fines and fees in light of the consequent harm.

April 29, 2021 in Collateral consequences, Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Reentry and community supervision | Permalink | Comments (1)

Sunday, April 18, 2021

Interrogating recent research indicating nonprosecution of certain misdemeanors lowers reoffense

A few weeks ago in this post I flagged the notable new empirical research indicating that nonprosecution of nonviolent misdemeanor offenses produced a large reductions in the likelihood of new criminal complaints.  This research is rightly getting a lot of attention, though this new National Review piece wonders if it might be getting too much attention.  The piece, by Charles Fain Lehman, is headlined "Progressives Are Overreacting to a Startling Crime Study."  And though I might dicker with some points made in the piece, I recommend the full discussion.  Here are excerpts:  

Every year, something like 13 million misdemeanor charges are filed in the United States. These charges, ranging from traffic violations to serious assaults, may be less flashy than felonies, but they are the main way Americans experience the criminal-justice system.

We prosecute misdemeanors because, among other things, we want there to be fewer of them, and we believe prosecution deters reoffending.  But a recent blockbuster paper makes a startling claim to the contrary: Prosecuting misdemeanants actually increases the likelihood that they will offend again.

The paper has been heralded by supporters of progressive district attorneys who have used their position to unilaterally impose reforms on the criminal-justice system, including refusing to prosecute many misdemeanants.  Boston D.A. Rachael Rollins, who provided the data for the study, has claimed it confirms the wisdom of her approach.  So have other reformers such as Chicago-area state’s attorney Kim Foxx and San Francisco district attorney Chesa Boudin.

Policy-makers, however, should exercise caution before reaching such expansive conclusions.  The paper can just as easily be read to endorse more modest reforms — especially keeping in mind long-established principles of criminal justice on which it is silent....

Most of the non-prosecution effect they measure is the result of first-time offenders, who become much more likely to commit crime if prosecuted.  By contrast, prosecuting repeat offenders of any sort has little discernible effect on the likelihood they will offend again in the future....  Diverting [first-time misdemeanants] offenders, with the threat of more serious punishment if they reoffend, could help clear dockets while minimizing crime. It would also free ADAs to focus on repeat misdemeanants....

The above approach is different from the idea that we should in general prosecute misdemeanants a lot less — a valid interpretation of the paper’s findings, but not necessarily the right one, for two reasons.

First, deterrence is not the only reason to prosecute an offender.  Advocates of not prosecuting misdemeanors tend to invoke “victimless” crimes such as drug possession and prostitution. But misdemeanors can also include offenses such as simple assault and auto theft — crimes that harm others.  Such crimes reasonably elicit a demand for retributive justice. It offends our moral sensibilities to think that a person who commits a serious but not felonious assault could get off scot-free.

Second, systematic reductions in leniency may affect all criminals’ decision-making, increasing their propensity to offend in the long-run. The paper shows that Rollins’s move toward non-prosecution of misdemeanors did not in the aggregate increase misdemeanor offenses, but the data it uses account only for the period between her election in January 2019 and March 2020, when the coronavirus crisis began.  It’s entirely possible that criminals will adapt, and misdemeanor offending will increase, in the long run....

Coming face to face with the justice system can be time-consuming and exhausting, and may, at the margins, increase rather than reduce a person’s propensity to offend.  Even those of us highly concerned with public safety should be interested in creative solutions that minimize crime and disorder.

At the same time, policy-makers should not get ahead of themselves — as some have in the rush to defund police departments and decrease the use of more serious charges.  Good research is the basis of good policy, and this research makes a valuable contribution to public-safety policy.  But we should be cautious in how far we go with it — careful changes around the edges are always safer than blanket transformations.

Prior recent related post:

April 18, 2021 in Criminal Sentences Alternatives, Data on sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Wednesday, April 14, 2021

Noting the importance of charging policies and practices (and consistency?) as federal rioting charges get resolved from coast-to-coast

A few weeks ago, as blogged here, Politico spotlighted some case processing realities surrounding the on-going federal prosecutions of persons involved in the insurrection on January 6, 2021.  That lengthy piece highlighted reasons why it could turn out, in the words of the headline, that "Many Capitol rioters [are] unlikely to serve jail time."  Politico now has this additional interesting piece on the same beat headlined "Leniency for defendants in Portland clashes could affect Capitol riot cases."  I also recommend this piece in full, in part because the piece showcases how differing charging policies and practices — both at the national level and in individual districts — can lead to differing case outcomes:

Federal prosecutors’ show of leniency for some defendants charged in the long-running unrest in the streets of Portland could have an impact on similar criminal cases stemming from the Capitol riot, lawyers say.

In recent weeks, prosecutors have approved deals in at least half a dozen federal felony cases arising from clashes between protesters and law enforcement in Oregon last summer.  The arrangements — known as deferred resolution agreements — will leave the defendants with a clean criminal record if they stay out of trouble for a period of time and complete a modest amount of community service, according to defense attorneys and court records.

Some lawyers attribute the government’s newfound willingness to resolve the Portland protest cases without criminal convictions to the arrival of President Joe Biden’s administration in January and to policy and personnel changes at the Justice Department.  Those moves seemed to step away from the highly public, throw-the-book-at-them stance that President Donald Trump and then-Attorney General William Barr adopted toward lawbreakers involved in racial justice protests that swept across the country last year following the death of George Floyd during an encounter with Minneapolis police.

“Obviously there was a change in direction from Washington, and once they changed the U.S. attorney, that seemed to change the tone,” said John Kolego, a defense attorney based in Eugene, Ore., who handled one of the Portland cases. “They had their marching orders from Barr before, but the tone is definitely changed,” Kolego said.

Five of the Portland cases in which deals were recently struck involved a felony charge of interfering with police during civil disorder.  Some defendants are accused of punching or jumping on police officers during the street battles.  One individual was charged after being accused of shining a high-powered green laser into the eyes of officers seeking to disperse a riot outside a police union building.

The civil disorder cases are notable because the charge of police interference is also being wielded by prosecutors in dozens of the criminal cases brought over the storming of the Capitol on Jan. 6 by pro-Trump protesters.  In the Washington cases, prosecutors have filed the felony anti-riot charge in tandem with others, like obstructing an official proceeding or assaulting police officers.

Some of the assaults described in the Portland cases bear similarities to the Capitol violence.  Prosecutors said one of the civil disorder defendants, Alexandra Eutin, used a wooden shield and hoses to strike a Portland police officer in the head while he was trying to make an arrest.  Several Capitol riot suspects are accused of using riot shields to shove police or obstruct their efforts to secure the building from the mob....

While Justice Department headquarters in Washington loudly touted the arrests and indictments related to last summer’s unrest, a spokesperson for the U.S. Attorney’s Office in Portland said the resolutions it is reaching in those cases were not being approved by officials in Washington.  “There is no across-the-board standard being used to rule our protest cases in or out of consideration for a deferred prosecution agreement, and our office does not consult with Main Justice on when to use them,” said Kevin Sonoff, the spokesperson.

However, Sonoff said the Portland prosecutors were acting under the authority that then-Attorney General Eric Holder granted to assistant U.S. attorneys a decade ago to craft resolutions they considered appropriate in criminal cases.  Trump’s first attorney general, Jeff Sessions, revoked that policy in 2017, but days after Biden’s inauguration in January, the Justice Department returned to the Holder standards that Portland prosecutors are now citing.  “Under the 2010 Holder memo on charging and sentencing, AUSAs have broad discretion on how cases are resolved,” the spokesperson said, referring to assistant U.S. attorneys.

Laurie Levenson, a former federal prosecutor who is now a law professor at Loyola Marymount University in Los Angeles, said: “Undoubtedly, defense lawyers will point to everything they can to get the most favorable resolution for their clients. Now, one thing they can point to will be the deferred prosecutions in Portland.”  Still, prosecutors in D.C. can argue that what happened there is more serious even if the physical actions of the defendants were comparable. “Attacking the Capitol is sui generis — it’s in a category of its own,” Levenson said. “One is the seat of government and the other is not.”

One defense attorney in Washington representing Capitol riot defendants said he planned to raise the Portland cases as negotiations begin between the government and defendants over those arising from the Capitol “I think they’re very relevant,” said the defense lawyer, who spoke on the condition of anonymity.  “The individual conduct is actually not all that different: You’re at a protest that turns into a riot. … The core conduct is the same, so if people out there are getting deferred prosecution for that conduct, then my guy should be.”

Nancy Gertner, a former federal judge, said she expected Portland comparisons as defense lawyers and the government jockey over the terms of potential plea deals. “Sure, it would be relevant … but that feels very different than entering into the Capitol,” said Gertner, now a lecturer at Harvard Law School.  Gertner said many of the Capitol cases were headed for what she called a “no-time resolution,” meaning no prison time. But she emphasized that offering a deferred prosecution with no criminal record — like the Portland deals — was really up to prosecutors, who may be reluctant to agree to them amid lingering outrage over the Jan. 6 takeover. “I can see prosecutors not wanting to give them — and a judge can’t,” she said....

The ad hoc resolutions in the Portland cases — some of which involve postponing action on the charges for as long as a year — are similar to more formal pretrial diversion programs in place at federal courts in Los Angeles, Seattle and Boston.  “Federal courts have programs to allow people to show they have been rehabilitated,” Lisa Hay, the chief federal defender in Oregon, told POLITICO.  “I think the government should always look at the facts of the case and the individual charges.  We are encouraged that the government is doing that in the cases here.”

The federal District Court in D.C. where the Capitol riot defendants are charged does not have such a program, chiefly because less-serious cases in the nation’s capital are typically routed to D.C. Superior Court, which does have a diversion program of its own....  Deferred prosecution or resolution agreements are often used in state and local courts, but are more rare in federal courts.  The Justice Department has generated controversy in recent years by using such deals to resolve investigations into corporations accused of being involved in criminal activity.  That led to calls by some criminal justice reformers to offer such arrangements to individuals more frequently in federal criminal cases, although they have not become widespread. 

Prior related post:

April 14, 2021 in Criminal Sentences Alternatives, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Wednesday, April 07, 2021

"When Animus Matters and Sex Offense Underreporting Does Not: The Sex Offender Registry Regime"

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

In Romer v. Evans the Court drew a constitutional distinction between civil laws enacted for a broad public purpose that justifies "the incidental disadvantages they impose on certain persons," and laws that have "the peculiar property of imposing a broad and undifferentiated disability on a single named group".  Laws of the second kind "raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected."  The difficulty lies in deciding when the inference properly becomes a conclusion that the law violates the Equal Protection Clause.  The more sweeping and unusual the burdens imposed on the targeted group, the more difficult it may be to discern a common policy explaining them other than the forbidden purpose of harming their targets.  At some point the animus inference may be strong enough to require scrutiny of the laws' purported rationale, including whether it has any actual basis in fact.

An astonishingly broad array of burdens are imposed today on anyone ever convicted of almost any sexual offense of any kind or seriousness, including but extending far beyond their simple inclusion in publicized websites listing "sex offenders."  No similar regime has ever been imposed on any other group of law-abiding former felons who have fully served the sentence for the crime they committed years earlier.  This "registry regime" raises as strong an inference of animus as there was in any of the four cases in which the Court sustained such claims, and the claim that it is justified by the clearly valid purpose of reducing the incidence of sexual offending does not survive the scrutiny of scientific studies which find the registry ineffective and often counterproductive.  Nor does the fact that many sexual offenses are never reported to law enforcement authorities cast any doubt on the validity of those studies or on the legal or policy analyses relying on them.  Much of the registry regime must therefore fall under an Anti-Animus principle.

April 7, 2021 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sex Offender Sentencing, Who Sentences | Permalink | Comments (3)

Friday, April 02, 2021

ONDCP releases "Biden-Harris Administration’s Statement of Drug Policy Priorities for Year One"

The Executive Office of The President Office Of National Drug Control Policy yesterday released this detailed 11-page document titled "The Biden-Harris Administration’s Statement of Drug Policy Priorities for Year One."  For folks interesting in the potential future of the drug war at the federal level, the document makes for an interesting read.  Here is how it gets started (endnotes omitted):

The overdose and addiction crisis has taken a heartbreaking toll on far too many Americans and their families.  Since 2015, overdose death numbers have risen 35 percent, reaching a historic high of 70,630 deaths in 2019.  This is a greater rate of increase than for any other type of injury death in the United States.  Though illicitly manufactured fentanyl and synthetic opioids other than methadone (SOOTM) have been the primary driver behind the increase, overdose deaths involving cocaine and other psychostimulants, like methamphetamine, have also risen in recent years, particularly in combination with SOOTM.  New data suggest that COVID-19 has exacerbated the epidemic, and increases in overdose mortality6 have underscored systemic inequities in our nation’s approach to criminal justice and prevention, treatment, and recovery.

President Biden has made clear that addressing the overdose and addiction epidemic is an urgent priority for his administration.  In March, the President signed into law the American Rescue Plan, which appropriated nearly $4 billion to enable the Substance Abuse and Mental Health Services Administration and the Health Resources and Services Administration to expand access to vital behavioral health services.  President Biden has also said that people should not be incarcerated for drug use but should be offered treatment instead.  The President has also emphasized the need to eradicate racial, gender, and economic inequities that currently exist in the criminal justice system.

These drug policy priorities — statutorily due to Congress by April 1st of an inaugural year — take a bold approach to reducing overdoses and saving lives.  The priorities provide guideposts to ensure that the federal government promotes evidence-based public health and public safety interventions.  The priorities also emphasize several cross-cutting facets of the epidemic, namely by focusing on ensuring racial equity in drug policy and promoting harm-reduction efforts.  The priorities are:

  • Expanding access to evidence-based treatment;
  • Advancing racial equity issues in our approach to drug policy;
  • Enhancing evidence-based harm reduction efforts;
  • Supporting evidence-based prevention efforts to reduce youth substance use;
  • Reducing the supply of illicit substances;
  • Advancing recovery-ready workplaces and expanding the addiction workforce; and
  • Expanding access to recovery support services.

ONDCP will work closely with other White House components, agencies and Congress to meet these priorities.  ONDCP will also work closely with State, local, and Tribal governments, especially around efforts to ensure that opioid lawsuit settlement funds are used on programs that strengthen the nation’s approach to addiction.

April 2, 2021 in Criminal justice in the Biden Administration, Criminal Sentences Alternatives, Drug Offense Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Saturday, March 27, 2021

Great coverage of recent "second chance" reforms and scholarship at CCRC

Regular readers are used to my regular reminders to regularly check out work over at the Collateral Consequences Resource Center.  Doing so recently brings up a number of posts over the last month or so covering recent "second chance" reforms and scholarship:

March 27, 2021 in Collateral consequences, Criminal Sentences Alternatives, Recommended reading, Reentry and community supervision | Permalink | Comments (1)

Thursday, March 25, 2021

"Punitive Surveillance"

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

Is there a “punishment exception” to the Constitution?  That is, can the deprivation of fundamental rights — such as the right to protest, to visit a mosque, or consult a lawyer — be imposed as direct punishment for a crime, so long as such intrusions are not “cruel and unusual” (under the Eighth Amendment)?  On the one hand, such intrusions seem clearly unconstitutional unless narrowly tailored to meet a compelling state interest; on the other hand, they seem less harsh than prison.  Surprisingly, the answer is not obvious. But the answer is critical as courts increasingly impose new forms of non-carceral punishment, such as GPS-equipped ankle monitors, smart phone tracking, and suspicionless searches of electronic devices.  This type of monitoring, what I term “punitive surveillance,” allows government officials and for-profit companies to track, record, search and analyze the location, biometric data and other meta-data of thousands of people on probation and parole.  With virtually no oversight or restraint, punitive surveillance strips people of fundamental rights, including privacy, speech, and liberty.  Thus far, courts have assumed that such intrusions are merely “conditions” of punishment or “regulatory” measures.  As a result, punitive surveillance is subject to almost no limitations.

This Article is the first to argue that these restrictive and invasive surveillance measures are — just like a prison sentence — punishment, and subject to constitutional limits.  The Article makes three contributions.  First, drawing on original empirical research of almost 300 state and local policies, it reveals the punitive and rights-stripping nature of electronic surveillance of those on court supervision.  Second, it explains why courts’ labeling of such surveillance as a “condition” of punishment or a regulatory measure stems from a misunderstanding of this surveillance and the law of punishment.  Finally, it makes the case that punishment is still subject to constitutional limits beyond the Eighth Amendment and the Ex Post Facto Clause, as well as other limits.  Given the rights at stake, and that punitive surveillance entrenches race and class-based subordination, limiting punitive surveillance is crucial.

March 25, 2021 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Technocorrections | Permalink | Comments (0)

Tuesday, March 23, 2021

"The Gender of Gideon"

The title of this post is the title of this notable new paper authored by Jessica Steinberg and Kathryn Sabbeth now available via SSRN. Here is its abstract:

This Article makes a simple claim that has been overlooked for decades and yet has enormous theoretical and practical significance: the constitutional guarantee of counsel adopted by the Supreme Court in Gideon v. Wainwright accrues largely to the benefit of men.  In this Article, we present original data analysis, which demonstrates that millions of women face compulsory and highly punitive encounters with the justice system but do so largely in the civil courts, where no right to counsel attaches.  The demographic picture that emerges is one in which the right to counsel skews heavily against women’s interests.  As this Article shows, the gendered allocation of the right to counsel has individual and systemic consequences that play an underappreciated role in perpetuating gender inequality.

We revisit well-known doctrine, and, in contrast to all prior literature, we place gender at the center of the Court’s jurisprudence on the right to counsel.  Liberty principles have been paramount in the Court’s opinions, but the liberty interests of women have been devalued.  In Lassiter v. Department of Social Services, the Court refused to recognize the termination of a Black mother’s relationship with her child as deserving the right to counsel.  Prior scholars have shown that the Gideon Court aimed to protect Black men from abuses of state power, but protecting Black women from such abuse is nowhere in the Court’s jurisprudence.

Since Lassiter, the Court has refused to recognize a constitutional guarantee of representation for civil defendants with fundamental interests at stake, and the largest categories of these cases — family law, eviction, and debt collection — all disproportionately affect Black women.  As we show, the gendered deprivation of a right to counsel relegates women to a secondary legal status and impinges on the functioning of American democracy.  Drawing on the example of housing deprivation, a highly visible collateral effect of the pandemic, we illustrate how lawyerless defendants are now the norm in the civil justice system, with women most severely impacted by this crisis.  First, their individual rights are routinely trampled.  Powerful governmental and private adversaries of these women have captured the civil courts, with the result that judges regularly fail to enforce even well-established law.  Second, without lawyers, appeals are scarce, and the law fails to evolve in areas of particular importance to women’s lives.  Third, women’s ability to act in the world, protected by the rule of law, has been disproportionately compromised, resulting in women’s entrenched subordination.  Finally, without lawyers to serve as watchdogs in the civil courts, constitutional doctrine has rendered women’s most important legal problems invisible.  This has undermined opportunities to identify the system’s shortcomings and agitate for reform.

March 23, 2021 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (1)

Wednesday, March 03, 2021

"Procedural Due Process, Drug Courts, and Loss of Liberty Sanctions"

The title of this post is the title of this notable new article authored by Michael Sousa ow available via SSRN.  Here is its abstract:

The exponential growth of problem-solving courts across the United States in the past several decades represents a paradigm shift in the American criminal justice system.  These specialized courts depart from the traditional adversarial model commonly found in the judicial system towards a collaborative model of justice that endeavors to treat and rehabilitate offenders with underlying conditions as an alternative to incarceration.  Drug treatment courts focus on providing drug addiction treatment services to offenders suffering from severe use disorders.  As a condition of participating in drug court, offenders agree to be bound by a system of sanctions imposed by the court in response to certain proscribed behaviors.

One concern with the quotidian operations of drug treatment courts is whether, and to what degree, procedural due process applies in situations where a participant receives a sanction amounting to a loss of liberty, either a short-term jail stay or an order to attend a residential treatment facility for a designated period of time. Despite their thirty-year existence, these issues remain unresolved.  This Article highlights the current state of the law regarding procedural due process and liberty sanctions in drug treatment courts and then offers qualitative empirical data regarding how these knotty issues play out in action in the context of one adult drug treatment court located in a Western state.  Ultimately, I assert that based upon the very special context in which these problem-solving courts operate, judicial precedent requires only minimal due process protections prior to the imposition of loss of liberty sanctions, and such protections can be satisfied by having drug court clients sign a knowing waiver of these rights prior to the imposition of such sanctions – a practice not presently done in large measure in drug treatment courts nationwide.

March 3, 2021 in Criminal Sentences Alternatives, Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (1)

Tuesday, February 16, 2021

Drug Policy Alliance launches "Uprooting the Drug War" to highlight myriad harms of drug criminalization

As detailed in this press release, "the Drug Policy Alliance announced the launch of a major new initiative — Uprooting the Drug War — with the release of a series of reports and interactive website that aim to expose the impact of the war on drugs beyond arrest and incarceration."  Here is more on this important effirt:

The project is designed to engage activists across sectors and issues in understanding and dismantling the ways in which the war on drugs has infiltrated and shaped many other systems people encounter in their daily lives — including education, employment, housing, child welfare, immigration, and public benefits.... 
 
The goal of the new initiative — a natural extension of DPA’s decriminalization advocacy work — is to collaborate with aligned movements and legislators through meetings, webinars, convenings, and organizing to explore the ways the drug war has infected the systems and institutions that are at the core of their policy advocacy and create momentum for concrete policy proposals that begin to end the drug war in all its forms.
 
The project, which lives at UprootingtheDrugWar.com, includes analysis of six different systems through first-hand stories, data spotlights, and reports that take a deep dive into how drug war policies have taken root and created grave harm in the fields of education, employment, housing, child welfare, immigration, and public benefits.  Each report explores the history of how the drug war is waged (or enforced) in each system, as well as the underlying assumptions of drug war policies, through an examination of federal and New York state law.  In addition to the reports, six ‘Snapshots’ provide a brief overview of how drug war punishment and logic show up in these systems at a national level and make policy recommendations that would begin to extract the drug war from these systems.  Finally, the site offers six ‘Advocacy Assessment Tools,’ which give partners and legislators the opportunity to evaluate drug war policies and practices in their own community so they can take action to uproot the drug war locally.

February 16, 2021 in Collateral consequences, Criminal Sentences Alternatives, Drug Offense Sentencing, Reentry and community supervision | Permalink | Comments (0)

Wednesday, December 30, 2020

"The Treatment-Industrial Complex: Alternative Corrections, Private Prison Companies, and Criminal Justice Debt"

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

Out of the 6.7 million adults caught up in the criminal legal system, approximately 4.5 million are under correctional control outside of prisons and jails.  Within this hidden world of “alternative corrections,” people who are arrested, detained, imprisoned, put on probation or diversion, and even released are forced to pay a growing amount of money to various for-profit “criminal justice” actors.  Alternatives to incarceration are conditioned on fines, fees, and other forms of wealth extraction, causing a vicious cycle of poverty and indebtedness that is virtually impossible to escape. 

This Article explores and analyzes the little-researched area of criminal justice debt arising from alternative corrections: how private corrections companies profit from supervising those individuals released, paroled, sent to rehabilitation or diversion, placed on probation, or subject to forensic or civil commitment.  These under-examined forms of for-profit correctional supervision — the treatment-industrial complex — have turned supposedly progressive alternatives to incarceration into cash-register justice. 

December 30, 2020 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Monday, December 28, 2020

Reviewing remarkable recent criminal justice reforms in the state of Michigan

Ohio and Michigan have a long-standing rivalry on a number of fronts, but this local article highlights why I do not think any state could rival the state of up north with regard to its recent achievements in criminal justice reform.  This piece, headlined "Michigan lawmakers made big inroads on criminal justice reform, but advocates say there’s more to be done," merits a full read, and here is how it gets started:

In a legislative session dominated by disagreements over how best to handle the COVID-19 pandemic, there was one policy arena that united conservatives and progressives alike — criminal justice reform.  Over the course of two years, lawmakers were able to see through several criminal justice policy changes that have eluded previous legislatures for years, as well as several new recommendations made by a task force that had buy-in from experts, advocates, law enforcement, business groups, Gov. Gretchen Whitmer’s administration and Michigan Supreme Court Chief Justice Bridget Mary McCormack.

Those who worked closely on the reforms are quick to say the work isn’t over.  But soon, thousands of people with old criminal convictions on their records will be able to apply to seal those records from public view — and in a couple of years, some of those records will be expunged automatically if they don’t commit any new crimes.  Others who might otherwise have served a stint in county jail may not have to in the future due to legislation decriminalizing many traffic offenses and providing alternatives to jail time for low-level crimes.

“There will be effects that we don’t see right now...we will only see decades later,” outgoing House Speaker Lee Chatfield — who has credited his father’s work in jail ministry to his longstanding interest in making changes to the criminal justice system — said in his farewell speech on the House floor.  “We gave people a second chance,” he continued. “We gave people a fresh start, we gave people the opportunity to now be contributing members of society.”

Some of the major criminal justice legislation passed by both chambers with bipartisan support this session include:

  • Civil asset forfeiture bills requiring a person be convicted of a crime prior to permanent property seizure by law enforcement in most cases. The concept was introduced as a top priority in both legislative chambers in early 2019, and Whitmer signed the legislation in May of that year.

  • Legislation to raise the age of people automatically charged as adults in Michigan’s criminal justice system from 17 to 18. Michigan was one of the few remaining states where 17-year-olds are automatically tried, sentenced and incarcerated as adults if they’re charged with or convicted of a crime.  Whitmer signed the bills in October 2019, and they take effect in October 2021.

  • “Clean Slate” legislation designed to simplify and expand expungement options for people who have gone several years without committing another offense.  The package, signed by Whitmer in October, opens up the expungement process to low-level marijuana convictions and many traffic offenses, increases the overall number of expungements a person can receive and allows consolidations of multiple convictions that occurred in the same 24-hour time period.  Lawmakers included a two-year window for the state to set up a system for processing automatic expungement, and other bills in the package are written to take effect 180 days after they’re enacted.

  • Additional expungement-related bills passed in the legislature’s “lame duck” session, including adding first-time drunken-driving convictions and certain crimes committed by minors to the list of what could be wiped from criminal records.  Another bill sent to the governor’s desk this month directs $24 million from the Marihuana Registry Fund to the Michigan Set Aside Fund.

  • A House package redefining the term “good moral character” in state law to remove barriers to obtaining many occupational licenses for people with a prior criminal conviction. Under existing law, any criminal conviction can be taken into consideration by a licensing board when determining a person’s fitness for a profession — under the bill package, only serious crimes that posed a threat to public safety or were directly related to the occupation in question could be taken into consideration.

  • House legislation reducing penalties for a number of low-level offenses from misdemeanors to civil infractions, including driving on a suspended license.  Other related bills would limit driver’s license suspensions to offenses related specifically to dangerous driving and eliminate mandatory sentencing for a variety of offenses.

  • Senate legislation expanding law enforcement discretion to issue citations for most misdemeanors in lieu of arrest and creating a presumption of a sentence other than jail for most misdemeanors and certain felonies.  Other bills would ensure summonses are used for most first-time failure to appear in court and reforms the state’s probation and parole policies, capping jail sanctions for technical probation violations and allowing more discretion to assess risks and needs.

  • A Senate bill lifting a ban on food assistance for people with more than one drug-related felony on their record.

December 28, 2020 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Saturday, December 19, 2020

Ohio Supreme Court strikes down "anti-procreation community-control condition" for man convicted for failing to pay child support to mothers of his 11 children

The Ohio Supreme Court yesterday rendered an interesting decision, by a 6-1 vote, striking down an interesting community control condition in Ohio v. Chapman, No. 2020-Ohio-6730 (Ohio Dec. 18, 2020) (available here). Here is the start and key concluding paragraphs from the majority opinion:

A man was convicted for failing to pay child support to the mothers of his 11 children and sentenced to community control.  One of the conditions of community control imposed by the court was that the man “make all reasonable efforts to avoid impregnating a woman” during his sentence.  The question before us is whether that condition was appropriate.  We conclude that it was not....

Chapman’s failure to properly prioritize his obligations toward his children and pay support as he is able could prompt several conditions of community-control sanctions that would reasonably relate to his offense.  The trial court properly ordered Chapman to obtain and maintain full-time employment.  It could have gone further in this direction: it might have ordered him to participate in job training, placed him in a program that would ensure that he was working and that child support was being deducted from his paycheck, required that he undergo education in financial planning and management, or placed restrictions on his spending.  All of these would be reasonably related to Chapman’s crime of nonpayment of child support.  But as long as the crime of nonsupport depends on an offender’s ability to pay, a prohibition requiring Chapman to “make reasonable measures” to avoid fathering another child during his term of community control is not.

The lack of a fit between the offense of which Chapman was convicted and the availability of other more effective conditions leads to the conclusion that the condition “unnecessarily impinge[d] upon the probationer’s liberty.”  Jones at 52.  On remand, the trial court must remove the anti-procreation condition, but may impose other conditions that are appropriately tailored to the goals of community control.

Justice French was the lone dissenter, and her opinion concluded with these points:

In Talty, 103 Ohio St.3d 177, 2004-Ohio-4888, 814 N.E.2d 1201, at ¶ 20-21, this court concluded that an anti-procreation community-control condition was overly broad because it did not contain a mechanism for lifting the condition.  But here, the trial court required only that Chapman make reasonable efforts to avoid impregnating another woman during his five-year community-control period.  The trial court then outlined a minimum of 12 ways by which Chapman could have the condition lifted.  This is not a case in which the trial court decided to impose an anti-procreation community-control condition for minor instances of failure to pay child support.  Chapman currently has at least 11 children that he is not supporting, and his child-support arrearage at the time of his 2018 resentencing was already over $200,000.  The trial court found that Chapman’s violations of his prior child-support obligations were “egregious and systemic.”  Under these facts, its anti-procreation condition is not overly broad.

December 19, 2020 in Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (2)

Monday, December 07, 2020

New Los Angeles County DA wastes no time making big policy and sentencing changes

SJM-L-GASCON-1207As detailed in this new Los Angeles Times article, headlined "On first day as L.A. County D.A., George Gascón eliminates bail, remakes sentencing rules," a prominent prosecutor is kicking off his new job in a potent way. Here are some details:

George Gascón embarked Monday on a plan to reimagine criminal prosecutions in Los Angeles County, announcing sweeping policy changes he’ll make as district attorney that include an end to cash bail, a ban on prosecutors seeking enhanced prison sentences and showing leniency to many low-level offenders.

The dramatic reversals of deeply ingrained, traditional law enforcement strategies in the nation’s largest district attorney’s office, also will include a review of thousands of old cases to determine whether lighter sentences or prisoner releases should be sought, Gascón said in a speech during his swearing-in ceremony.

“I recognize for many this is a new path … whether you are a protester, a police officer or a prosecutor, I ask you to walk with me. I ask you to join me on this journey,” he said.  “We can break the multigenerational cycles of violence, trauma and arrest and recidivism that has led America to incarcerate more people than any other nation.”

The reforms announced Monday added to a list of moves Gascón vowed to make during a contentious election against the incumbent district attorney, Jackie Lacey, including a promise to bar his prosecutors from seeking the death penalty in new cases and to end the practice of trying juveniles as adults. He followed through on both issues Monday, announcing them among the slew of new policies he is implementing....

While Gascón’s victory over Lacey was widely viewed as a repudiation by voters of more traditional, “tough on crime” policies, his focus on reducing incarceration rates could meet resistance at a time when violent crime is surging in Los Angeles.  The city has recorded more than 300 homicides for the first time in over a decade this year, and shootings are up more than 30% compared with 2019, according to L.A. Police Department records....

Of all the policy changes Gascón laid out, the end to cash bail, which is set to go into effect Jan. 1, is perhaps the most seismic.  Instead of seeking to hold criminal defendants in custody unless they can afford to post an amount of cash determined by a judge, prosecutors will be directed to ask judges to release them, except when someone is charged in a homicide or other violent felony. In those cases, prosecutors will seek to have defendants kept in custody....

On Monday, Gascón also ordered L.A. County prosecutors to stop prosecuting first-time offenders accused of a wide array of nonviolent crimes, including criminal trespass, disturbing the peace, public intoxication and loitering.

Defense attorneys contend such low-level nuisance crimes disproportionately affect homeless and mentally ill defendants, and can have long-term implications when those people try to find work and housing later in life. Instead of seeking plea deals or convictions, prosecutors will be expected to steer such defendants into pre-trial diversion programs that resolve cases through counseling or other forms of rehabilitation....

Gascón went on Monday to say he would put an end to the use of sentencing enhancements, which prosecutors have long used to win longer sentences against defendants with prior felony convictions or who had been accused of being in a gang.  Sentencing enhancements have come under fire in recent years for being excessively punitive and, in some cases, reliant on faulty police work.  In the last year, for example, several Los Angeles police officers were charged with falsely labeling people as gang members.  That bogus information was fed into a statewide database that is sometimes used to justify imposing enhanced sentences on someone.

The district attorney’s office, he said, will also review “thousands” of cases in which defendants in L.A. County were sentenced under the enhancement rules — a move that could lead to prisoners having their sentences reduced or, in some cases, being released....

Gascón acknowledged that the changes might seem enormous and asked doubters to trust him. “For those of you at home who may be skeptical, I want to ask you to take a moment, close your eyes, and imagine your ideal safe neighborhood. I imagine most of you will imagine a neighborhood with parks, playgrounds and manicured laws. With kids playing and after-school programs flourishing. I don’t imagine most of you are imagining a neighborhood with a police officer on every corner,” he said. “We know what safety looks like. But we don’t offer it to every community equally.”

UPDATE: I have found online some of DA Gascon's new policy commitments in memos called "Special Directies."  These all make for interesting reads:

DA Gascon Special Directive 20-06: PRETRIAL RELEASE POLICY

DA Gascon Special Directive 20-11: DEATH PENALTY POLICY

DA Gascon Special Directive 20-12: VICTIM SERVICES

DA Gascon Special Directive 20-14: RESENTENCING

December 7, 2020 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

Saturday, December 05, 2020

"Banishing ‘Sex Offenders': How Meaningless Language Makes Bad Law"

The title of this post is the title of this notable new paper authored by Guy Padraic Hamilton-Smith.  Here is its abstract:

An essay on how the term "sex offender" is functionally meaningless, and invites policy responses that are out of step with the reality of sexual harm.  These policy responses, in turn, hobble our efforts to reckon with sexual harm, foreclose accountability and redemption, and elide more effective approaches.

December 5, 2020 in Criminal Sentences Alternatives, Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (0)

Thursday, December 03, 2020

New Pew report highlights how "States Can Shorten Probation and Protect Public Safety"

Shorten_Probation_and_Public_Safety_Report_650px_Figure2This important new report from The Pew Charitable Trusts, titled "States Can Shorten Probation and Protect Public Safety," provides a great accounting of key data and good policy in the probation area.  Here are excerpts from the report's overview:

More than 3.5 million, or 1 in 72, adults were on probation in the United States at the end of 2018 — the most recent year for which U.S. Bureau of Justice Statistics (BJS) data is available — more than triple the number in 1980.  Nationwide, on any given day, more people are on probation than in prisons and jails and on parole combined.

At its best, probation — court-ordered correctional supervision in the community — gives people the opportunity to remain with their families, maintain employment, and access services that can reduce their likelihood of reoffending while serving their sentences.  But, as previous research by The Pew Charitable Trusts has shown, the growth and size of this population have overloaded local and state agencies and stretched their resources thin, weakening their ability to provide the best return on taxpayers’ public safety investments, support rehabilitation, and ensure a measure of accountability.

One key factor driving the size of the probation population is how long individuals remain on supervision.  A growing list of high-quality studies have shown that long probation sentences are not associated with lower rates of recidivism and are more likely than shorter ones to lead to technical violations — noncompliance with one or more supervision rules, such as missing appointments or testing positive for drug use.  Recent research from the Council of State Governments has found that such violations contribute significantly to state incarceration rates and correctional costs: More than 1 in 10 state prison admissions are the result of technical violations of probation rather than convictions for a new crime.  To date, the average length of probation has not been well documented, because data on individual terms has been lacking.

To begin addressing this gap and help criminal justice stakeholders better understand how long people spend on probation — as well as the effects of term length on individual recidivism outcomes — The Pew Charitable Trusts conducted an in-depth analysis of BJS data from 2000 through 2018.  Additionally, Maxarth LLC examined Oregon and South Carolina data to quantify the potential to reduce probation lengths without increasing re-offending in those states, and the National Conference of State Legislatures (NCSL) reviewed probation sentencing statutes in all 50 states.  This report provides a first-of-its-kind national and state-level portrait of the average length of probation and explores whether term lengths can be safely reduced and what options are available for state policymakers looking to improve their system’s outcomes....

No national standard exists for how long probation should be for any given case.  Rather, the findings of this and other research suggest that probation should be only long enough to meet its basic objectives of providing accountability proportional to the underlying criminal offense, connecting people to needed treatment and services, and enabling individuals to complete programs such as cognitive behavioral therapy and counseling that have been shown to reduce the risk of re-offending.

Research indicates that people are at the highest risk of re-offending early in their probation terms; for example, among people on felony probation in Oregon who were rearrested within three years of entering probation, 69% were arrested in the first year.  Further, studies show that after the first year, many supervision provisions, such as reporting requirements and community-based services, have little effect on the likelihood of rearrest, so keeping probation terms short and prioritizing resources for the early stages of supervision can help improve success rates among people on probation, reduce officer caseloads, and protect public safety.

Although probation was originally conceived as an alternative to incarceration, criminal justice officials, policymakers, and other stakeholders increasingly acknowledge that keeping people on probation longer than is needed to deliver public safety benefits carries unnecessary and unproductive costs and wastes scarce resources. This report aims to help state and local leaders better understand and address the critical issue of probation length by providing essential data and offering policies and practices that can improve outcomes for probation departments and the people they supervise across the U.S.

December 3, 2020 in Criminal Sentences Alternatives, Reentry and community supervision | Permalink | Comments (1)

Wednesday, November 18, 2020

County in Washington State approves new diversion program focused on community restoration

This local article, headlined "King County Council OKs plan to let community groups decide some punishment -- not judges," reports on a notable new diversion program just approved in Seattle's county.  Here are the interesting details:

The King County Council on Tuesday voted Tuesday to approve funding for a groundbreaking criminal justice diversion program that will let community groups decide what punishment -- if any -- should be handed out for a select group of accused felons.

The county council voted 9-0 to approve a program known as Community Restorative Pathways, adding funding for it in the county's $12.59 million biennium budget. Instead of facing a judge, juveniles and adults accused of a first-time, non-violent felony offense will be offered an alternative where a non-profit community panel will decide how the accused person can be held accountable for their crime.

Suspects accused of violent crimes and crimes against persons would not be eligible for the diversion program, and if the offender fails to follow through with the community groups recommended punishment or accountability, the original criminal charges could still be pursued in court.

“We can send that person instead (of jail) to a community accountability group, who will define what they think accountability means,” said King County Prosecutor Dan Satterberg. It’s a new concept for King County Superior Courts and the King County Prosecutor’s Office, which has 7,000 cases waiting for disposition, double the amount in a normal year. Accountability would not include jail or even a conviction, said Satterberg, who declined to define what accountability means.

“That’s up to the community groups,” he said, adding that it would target 800 juveniles and 1,000 adults to start. “These are low-level felonies, property offenses, no domestic violence, no sexual assault cases (and) decisions you would make if you were in my shoes.”

The program is slated to begin in mid-2021 and be implemented no later than the start of 2022. The budget for the program is set at $6.2 million, money that would have gone to the King County Sheriff’s Office.

King County Executive Dow Constantine proposed the idea along with Satterberg. Constantine has pledged to phase out the King County Jail after the pandemic is over, what he described as a cost-cutting move. “Locking people up is very costly and it’s not affirmative for people's lives,” King County Councilmember and Budget Chairperson Jeanne Kohl-Welles told KOMO News just before the budget vote. “But we also have to make sure to protect the public, so this is hard, it’s not going to be easy."

November 18, 2020 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Thursday, October 01, 2020

Lots and lots of notable (and very consequential?) new criminal justice reforms now law in California

CaliforniaflagCalifornia has long been a very big and very interesting and very complicated state when it comes to criminal justice and sentencing reform. This fascinating state story continued with a lot of new bills being signed yesterday by Gov Gavin Newsom. This local article (which somewhat tracks this official document from the Governors office) provides some of the details and provides especially helpful links to the underlying legislation.  Here are excerpts focused on criminal justice reforms with my bolding added for follow-up comments:

Gov. Gavin Newsom signed landmark bills into law on Wednesday, the last day available for the governor to sign legislation.  The docket included racial justice, criminal justice, and policing reform, as well as legislation related to cannabis, rental housing, and banning hazardous chemicals and ingredients in cosmetics. 

This long list of signed bills has my head spinning, and the title of this post highlights that I am particularly curious and particularly uncertain about how consequential all these bills are likely to be.  I have bolded the two bills that, as a sentencing fan, strike me as particularly intriguing and potentially very consequential. 

AB 1950, which caps the duration of probation terms, has been described by REFORM Alliance as the "most transformative probation reform bill in the country."  This new Fox News article, headlined "Jay-Z, Meek Mill's REFORM Alliance celebrate 'major victory' with Calif. Gov. Newsom passing probation bill," talks about this new bill and the efforts and people behind making it law.  Here is a snippet:

On Wednesday, REFORM announced on Instagram it was celebrating a "MAJOR REFORM VICTORY." Through its verified Instagram account, the alliance thanked California Gov. Gavin Newsom for signing AB 1950 into law.  "This bill will help put hundreds of thousands of Californians on probation in positions to succeed and exit the criminal justice system for good.  Thank you @GavinNewsom!" the Instagram post reads.  In a follow-up post, the organization wrote, "This is just the beginning. This is how we #fightdifferent."...

REFORM's CEO Van Jones explained in a video statement that the law will essentially "make people be on probation for much less time" and will "give people a much better shot at getting out of that system, getting what they need and getting on their way."  The premise is to reduce the number of probation violations.

AB 2542, which provides for a California Racial Justice Act, seems to be the biggest and broadest racial justice act ever passed by any state because it seems to apply to all convictions and sentences and not just death sentences as did comparable Racial Justice Act passed in Kentucky and North Carolina years ago.  Notably, Michelle Alexander wrote this op-ed last week endorsing this bill and explaining its reach this way (with my emphasis added):

The new law will make it possible for a person charged or convicted of a crime to challenge racial, ethnic, and national-origin bias in their case through relevant evidence, including: 

▪ Explicit racial bias by an attorney, judge, law enforcement officer, expert witness, or juror involved in the case.

▪ Use of racially discriminatory language in court and during the criminal proceedings, whether or not intentional.

▪ Racial bias in jury selection, such as removing all or nearly all Black, brown, Native, Indigenous and people of color from the jury.

▪ Statistical disparities in charging and convictions — that is, evidence that people of one race are disproportionately charged or convicted of a specific crime or enhancement.

▪ Statistical disparities in sentencing — that is, evidence that people of one race receive longer or more severe sentences, including the death penalty or life without parole.

I believe that the new California Racial Justice Act only applies prospectively, and so we will not see extensive litigation over past sentences as we did in North Carolina (and which led to the repeal of that state's Racial Justice Act). But even as just a prospective measure, I am inclined to predict that this new statute could prove highly consequential in all sorts of ways.

I am hopeful that smart folks who focus on the California criminal justice system might soon blog about to these bills and their potential impacts. And, of course, another wave of reform in California might not be far away: as this article highlights under the headline "Three ballot measures test attitudes on crime in California," a set of criminal justice initiatives being put to California voters next month will add to this remarkable 2020 reform chapter in the Golden State.

October 1, 2020 in Criminal Sentences Alternatives, Race, Class, and Gender, Reentry and community supervision, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Thursday, September 17, 2020

"Public opinion and the politics of collateral consequence policies"

The title of this post is the title of this notable new article authored by Travis Johnston and Kevin Wozniak recently published in Punishment & Society.  Here is its abstract:

We analyze data from a national sample of the U.S. population to assess public support for policies that deny former offenders’ access to job training programs, food stamps, and public housing. We find that Americans generally oppose benefit restrictions, though support for these policies is higher among Republicans and people with higher levels of racial resentment.  We also find that a legislator’s criminal justice reform positions generally do not significantly affect voters’ evaluation of him or her, and even voters with more punitive attitudes toward collateral consequence policies support legislators who advance particular kinds of reform proposals.  These findings provide little evidence that any group of Americans would be mobilized to vote against a legislator who works to reform collateral consequence policies. We discuss the implications of these findings for American and comparative studies of the politics of punishment.

September 17, 2020 in Collateral consequences, Criminal Sentences Alternatives, Elections and sentencing issues in political debates, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Saturday, September 12, 2020

Highlighting the need for, and the support for, reforming mass community supervision

Jessica Jackson's new USA Today piece, headlined "The expensive burden of parole, probation unjustly places people in a second prison," highlights why community supervision is another form of mass punishment that needs reform attention.  Here are excerpts:

According to the Bureau of Justice Statistics, nearly 4.4 million Americans were on probation or parole in 2018, approximately twice the number of people incarcerated in the United States.  [And] more than 75% were under supervision for nonviolent offenses, according to The Pew Charitable Trusts.  Since 1990, the number of women on parole or probation has almost doubled to more than 1 million in 2016. And though African Americans make up just 13% of the U.S. adult population, they account for 30% of those on community supervision.

Sadly, almost 350,000 of people who exit probation or parole each year return to jail or prison, often for technical violations rather than for committing new crimes.  In fact, probation and parole failures account for 45% of state prison admissions nationwide.

Collectively, states spend $2.8 billion annually to incarcerate people for noncriminal rule violations.  This is money that could be better used to help people gain the skills and treatment they need to successfully reenter their communities after incarceration, something that has strong public support.   A new Morning Consult survey conducted in eight states on behalf of my organization, the REFORM Alliance [reported here], found:

► A majority of voters in six of the eight states think it is important to reduce the number of people on probation or parole supervision.

► A plurality of voters in all eight states think the United States spends too much incarcerating people for violating the conditions of their probation or parole.

► At least half of voters in seven of the eight states would be more likely to support a public official who wants to reform the probation and parole system.

Perhaps most important, a majority of voters in all eight states support commonsense probation and parole reforms, such as: decreasing caseloads for probation officers; providing mentorship programs for those on parole or probation; allowing people on probation to report to their supervisors remotely; incentivizing and encouraging supervised people to participate in rehabilitative programs; and investing savings from a smaller supervised population into reentry programs.

Simply put, people want a smarter system that balances accountability and public safety with rehabilitation and redemption. We know it's possible.  Crime and incarceration dropped at the same time in 37 states over a nine-year period, according to data from the Pew Charitable Trusts.  Red and blue states, alike, are continuing that progress, with legislatures in Mississippi, California and Louisiana passing parole and probation reform legislation this year.

September 12, 2020 in Criminal Sentences Alternatives, Reentry and community supervision | Permalink | Comments (0)

Saturday, August 22, 2020

"Civil-Asset Forfeiture Should Be an Easy Place to Start on Criminal-Justice Reform"

The title of this post is the title of this new National Review commentary authored by Isaac Schorr.  Here are excerpts:

Civil-forfeiture reform is the principal focus of the FAIR Act, and for good reason: The process is broken.  Under this form of forfeiture, the government brings charges against the property itself without leveling any against the property owner.  On a federal level, criminal behavior need not be proven for law enforcement to initiate civil-asset-forfeiture proceedings; mere suspicion is considered reason enough.  It’s worth noting that as California’s attorney general, Democratic vice-presidential nominee Kamala Harris strongly supported handing this same power to local law enforcement — for the people, of course.

Once proceedings have been initiated, the government needs to prove, by a preponderance of the evidence (51 percent sure), only that the property is subject to forfeiture.  The burden of proof then belongs — in most states — to the owners of the property, who must show that they were neither involved in any criminal activity nor aware that their property was being used for criminal purposes, or that, if it were, then they took steps to end that criminal activity.  Worst of all, property owners are not even necessarily entitled to legal representation. Whether they are granted this basic right is left to the discretion of the presiding judge.

Why has civil-asset forfeiture, which flies in the face of American expectations of due process and the presumption of innocence, been allowed to persist in its current form? It’s all about the Benjamins.  The federal government takes in net revenues exceeding $1 billion annually from asset forfeiture, and states share in the cash cow through “equitable sharing.”  This practice, which sounds innocent enough, provides local authorities with perverse incentives.  Per the Institute for Justice, equitable sharing allows law enforcement to “bypass state laws that limit civil forfeiture.  By collaborating with a federal agency, they can move to forfeit property under federal law and take up to 80 percent of what the property is worth,” which gives them “a direct financial stake in forfeiture encourag[ing] profiteering and not the pursuit of justice.”  What police department would not take advantage of such a profitable opportunity, particularly when those profits are not subject to the same oversight as taxpayer dollars?

The problems with civil-asset forfeiture are many; the FAIR Act addresses nearly all of them.  It would raise the evidentiary standards that the government needs to meet to the “clear and convincing” level.  It would place the burden of proof on the government to show a property owner’s knowledge of criminal activity rather than asking property owners to make the case for their innocence.  It would guarantee property owners the right to legal representation.  Perhaps most important, it would end equitable sharing, incentivizing police departments to stop spending their time pursuing frivolous forfeiture claims.  The act’s changes to the reporting structure are also important.  The Justice Department does not currently provide a public breakdown of how much of their annual seizures are criminal, administrative, and civil forfeiture, respectively.  The FAIR Act would mandate such a breakdown....

The FAIR Act has been endorsed by the Heritage Foundation and American Civil Liberties Union and is cosponsored by legislators as liberal as 2016 Bernie Sanders backer Tulsi Gabbard and as conservative as Freedom Caucus member Paul Gosar.  A functioning Congress acting in the best interest of the American people would take notice of this broad consensus and act swiftly to pass this piece of commonsense legislation.

August 22, 2020 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Wednesday, August 12, 2020

"Blanket Exclusions, Animus, and the False Policies They Promote"

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

Saying something is true does not make it so. A nd saying it louder does not make it truer.  But such is the legislative posture behind modern day sex offense registration laws that punish those who commit sex crimes because of entrenched myths that overstate the laws’ positive impact on public safety and exaggerate recidivism rates of offenders.  And it is not only registration schemes themselves that have been scaffold-ed by these myths, but numerous ancillary laws that exclude benefits to offenders strictly because they have committed sex offenses.

Sadly, this sticky, but false, narrative has provided the animus that galvanized implementation of registration and notification regimes. And in its most recent chapter, the narrative has been formalized into blanket exclusions — or what this article calls “all except for” provisions — that have inserted into a myriad of criminal justice reform efforts without much notoriety.

The effect?  Registrants and their families have been prohibited from broad-based and important ameliorative changes to the carceral state, many to which they should be entitled, and to which they are denied only because of their status as registrants.  Indeed, within comprehensive legislation covering numerous crime and sentencing reforms, these ubiquitous blanket exclusions have the markings of boilerplate language that have been introduced even where the new legislation has no rational relationship to the protection of the public’s safety or the prior sex offense conviction.

This article examines the moral panic and false data used to buttress blanket exclusion provisions — their inflated importance obvious. It concludes that these measures, which are un-tethered to public safety concerns, and only supported by governmental and community animus, violate fourteenth amendment protections.

August 12, 2020 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (2)

Friday, July 31, 2020

Big new ACLU and HRW report details "How Probation and Parole Feed Mass Incarceration in the United States"

The quoted portion of the title of this post is part of the title of this huge new report by Human Rights Watch and the American Civil Liberties Union fully titled "Revoked: How Probation and Parole Feed Mass Incarceration in the United States." This important 200+ page report includes these passages in its "summary":

Probation, parole, and other forms of supervision are marketed as alternatives to incarceration in the United States. Supervision, it is claimed, will keep people out of prison and help them get back on their feet.

Throughout the past 50 years, the use of probation (a sentence often imposed just after conviction) and parole (served after incarceration) has soared alongside jail and prison populations. As of 2016, the last year for which supervision data is available, 2.2 million people were incarcerated in United States jails and prisons, but more than twice as many, 4.5 million people — or one in every 55 — were under supervision.  Supervision rates vary vastly by state, from one in every 168 people in New Hampshire, to one in every 18 in Georgia.

Over the past several decades,arbitrary and overly harsh supervision regimes have led people back into US jails and prisons — feeding mass incarceration.  According to the Bureau of Justice Statistics (BJS), in the late 1970s, 16 percent of US state and federal prison admissions stemmed from violations of parole and some types of probation.  This number climbed to a high of 36 percent in 2008, and, in 2018, the last year for which data is available, was 28 percent.  A different set of data for the previous year from the Council of State Governments, which includes all types of probation violations — but is limited to state prison populations — shows that 45 percent of all US state prison admissions stemmed from probation and parole violations.  These figures do not include people locked up for supervision violations in jails, for which there is little nationwide data.  Black and brown people are both disproportionately subjected to supervision and incarcerated for violations.

This report documents how and why supervision winds up landing many people in jail and prison — feeding mass incarceration rather than curtailing it.  The extent of the problem varies among states, and in recent years multiple jurisdictions have enacted reforms to limit incarceration for supervision violations.  This report focuses on three states where our initial research indicated that — despite some reforms — the issue remains particularly acute: Georgia, Pennsylvania, and Wisconsin.

Drawing on data provided by or obtained from these states, presented here for the first time, and interviews with 164 people incarcerated for supervision violations, family members, government officials, practitioners, advocates, and experts, we document the tripwires in these states leading to incarceration.  These include burdensome conditions imposed without providing resources; violations for minor slip-ups; lengthy incarceration while alleged violations are adjudicated; flawed procedures; and disproportionately harsh sentences for violations.  The report shows that, nationwide,most people locked up for supervision violations were not convicted of new offenses — rather, they were incarcerated for breaking the rules of their supervision, such as for using drugs or alcohol, failing to report address changes, or not following the rules of supervision-mandated programs.  Of those who were incarcerated for new offenses, in our focus states, many were for conduct like possessing drugs; public order offenses such as disorderly conduct or resisting arrest; misdemeanor assaultive conduct; or shoplifting....

The root causes of these violations, the report documents, are often a lack of resources and services, unmet health needs, and racial bias.The report also draws attention to marked racial disparities in who is subjected to supervision and how authorities enforce it. In practice, supervision in many parts of the US has become a system to control and warehouse people who are struggling with an array of economic and health-related challenges, without offering meaningful solutions to those underlying problems.

July 31, 2020 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Reentry and community supervision, Who Sentences | Permalink | Comments (1)

Thursday, July 09, 2020

Michael Cohen, Prez Trump's former lawyer, sent back to federal prison because he "refused the conditions of his home confinement"

As reported in this new AP piece, "President Donald Trump’s former personal lawyer and fixer, Michael Cohen, was returned to federal prison Thursday, weeks after his early release to serve the remainder of his sentence at home because of the coronavirus pandemic, the federal Bureau of Prisons said."  Here is more:

In a statement to The Associated Press, the Bureau of Prisons said Cohen had “refused the conditions of his home confinement and as a result, has been returned to a BOP facility.” His return to prison comes days after the New York Post published photos of him and his wife enjoying an outdoor meal with friends at a restaurant near his Manhattan home.

Roger Adler, one of Cohen's attorneys, called his jailing an “overly draconian response to what was at worst poor judgment.”  He said it was Cohen's belief that being on medical furlough “did not prohibit venturing beyond his apartment and dining out.”

“It's not a crime to eat out and support local businesses," Adler told the AP, adding Cohen had been “thrown back into a petri dish of coronavirus.”

Cohen, who pleaded guilty to tax evasion, campaign finance fraud and lying to Congress, had been released May 21 on furlough as part of an attempt to slow the spread of the virus in federal prisons. Cohen, 53, began serving his sentence in May 2019 and had been scheduled to remain in prison until November 2021.

Cohen’s convictions were related to crimes including dodging taxes on $4 million in income from his taxi business, lying during congressional testimony about the timing of discussions around an abandoned plan to build a Trump Tower in Russia, and orchestrating payments to two women to keep them from talking publicly about alleged affairs with Trump.  Prosecutors said the payments amounted to illegal campaign contributions.  Trump, who denied the affairs, said any payments were a personal matter....

A federal judge had denied Cohen’s attempt for an early release to home confinement after serving 10 months in prison and said in a May ruling that it “appears to be just another effort to inject himself into the news cycle.” But the Bureau of Prisons can move prisoners to home confinement without a judicial order.

Intriguingly, this New York Daily News article, headlined "Michael Cohen arrested after refusing gov’t demand to not publish Trump book during sentence: friend," suggests that Cohen's decision to eat out at a restaurant is not the real reason he is headed back to federal prison:

Michael Cohen was thrown back into prison on Thursday after refusing to sign a home confinement agreement requiring him to not publish a tell-all book about President Trump for the duration of his sentence, according to Lanny Davis, his friend and former attorney.

Cohen was presented with the hush contract while sitting down with his probation officer in downtown Manhattan for a meeting that he expected to be about fitting an electronic surveillance bracelet to his ankle, Davis told reporters on a conference call.  In addition to not publishing a book, the agreement required Cohen to not talk to any media outlets for the remainder of his three-year sentence, according to Davis, who wasn’t present but said he got the play-by-play recounted to him by Cohen attorney Jeffrey Levine.

“That disturbed him because he pointed out that he could talk to the media when he was in Otisville — why not in home confinement?” Davis said, referring to the upstate New York prison where Cohen was doing hard time.  After making clear he would not sign, the probation officer left the room, Davis said.  “The next thing that they saw coming out of an elevator was three U.S. marshals holding shackles,” Davis continued....

“The next thing that happened is the marshals said they had an order signed by somebody from BOP and the order was to arrest him and put him in jail and they started to put shackles on him,” Davis said, using an acronym for the Bureau of Prisons.  Having a change of heart, Cohen told the marshals: “I’ll sign exactly what you want me to sign so I don’t have to go back to jail,” according to Davis. 

But the marshals didn’t budge, Davis said.  “It’s out of our hands,” one of them told Cohen, according to Davis. Davis said Cohen was taken to either the Metropolitan Correctional Center in Manhattan or the Metropolitan Detention Center in Brooklyn.

A spokesman for BOP confirmed Cohen had been taken into custody for having “refused the conditions of his home confinement,” but declined to elaborate.

Prior Michael Cohen posts:

July 9, 2020 in Celebrity sentencings, Criminal Sentences Alternatives, Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (3)

Monday, June 29, 2020

"The Limits of Fairer Fines: Lessons from Germany"

The title of this post is the title of this new report from the The Criminal Justice Policy Program at Harvard Law School.  Here is a small part of the start and end of the long "Executive Summary" from the 156-page report:

Over the last few decades, advocates in the United States have exposed the injustices of high fines and fees that courts charge people sentenced to criminal and civil violations. Courts impose fines as punishment for offenses — often in addition to other punishment such as probation or jail — and they charge fees (also referred to as costs or surcharges) to fund the court and other government services.  The number of fees and the amounts assessed have been increasing over the last decades, in part because fees are being used to generate revenue for local and state governments.  Rarely, if ever, do U.S. courts consider people’s ability to pay before imposing these sanctions.  When people are unable to pay, they can become trapped in the system, facing a cycle of consequences including additional fees, court hearings, warrants, arrest, and incarceration.

In response to advocacy exposing how these punitive practices harm people and communities, jurisdictions have begun to reform.  The most direct efforts seek to repeal revenue-raising fines and fees.  More common, however, is the adoption of requirements that courts assess people’s ability to pay at the sentencing hearing, and/or before punishing people for nonpayment.  Though high monetary sanctions are prevalent in all courts, much of this reform attention has focused on misdemeanor courts that sentence ordinance violations and misdemeanor crimes. This is because fines are a common component of misdemeanor criminal sentences, and because there are clearer conflicts of interest inherent in the structure of some lower level courts that rely on fines and fees to fund their operations.

It is in this reform context that academics, advocates, and government leaders have considered day fines as a potential model for the United States.  Day fines are used in over 30 countries in Europe and Latin America to calculate fine amounts that are tailored to people’s ability to pay.   Day fines are set using a two-part inquiry.  Courts first consider the nature and seriousness of the offense, measured in units or days.  For example, a common low-level misdemeanor may receive 20 units.  Courts then calculate how much the person can pay per day/unit based on their individual financial circumstances.  The amount a person must pay per day is called the daily rate.  Someone earning very little may be required to pay $5 per unit for a total fine of $100, while someone earning more may be required to pay $20 per unit for a total fine of $400.  Day fines provide a framework for setting a fine based not just on the nature of the offense, but also on how much a fine will impact the person given their financial circumstances.  The resulting fines are theoretically more fair because people of different means experience the fines similarly.  A $400 fine affects a person earning that amount per week differently than a person who earns that amount in one day. In the United States, day fines hold the promise not only of making fines more fair, but also of making fines affordable to avoid the spiral of negative consequences that people face upon nonpayment.

Despite the theoretical resonance of day fines as a potential solution, there has been very limited information available about how this model works in practice.  This project fills this knowledge gap....

Germany’s example provides a useful starting point for jurisdictions in the United States that are considering the day fines model.  Germany’s experience demonstrates the need for strong political support, public education, and judicial buy-in, as well as a robust daily rate formula that will ensure day fines can be set at levels that people can afford to pay.  Germany also shows us that considering ability to pay at sentencing in every case is possible without being unduly cumbersome.  When considering day fines, jurisdictions should be thoughtful about their own political, socio-economic, and cultural realities, as well as the specific problems they are trying to address and how day fines would fit into their existing misdemeanor system.

This Report begins with a detailed overview of day fines in Germany, including specific policy details about the system’s design.  In the second part, we analyze that system and identify areas of consideration for those who might implement day fines in the United States.  We conclude with a decision guide for jurisdictions and advocates considering day fines.

June 29, 2020 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Sentencing around the world | Permalink | Comments (0)

Wednesday, June 17, 2020

"Restorative Justice From Prosecutors' Perspective"

The title of this post is the title of this new article now available via SSRN and authored by Lara Bazelon and Bruce Green. Here is its abstract:

Restorative justice processes have been promoted as an alternative to criminal adjudication for many years outside the United States and, in recent years, in the United States as well.  In the United States, restorative justice processes are used in some jurisdictions in cases involving juvenile offenders or low-level, nonviolent offenses by adults, but they have rarely been used in cases of adult felony offenders charged with serious violent crimes.  Whether restorative justice processes will be used more broadly depends largely on whether prosecutors become receptive to their use.

A handful of newly elected “progressive prosecutors” have expressed interest in applying restorative justice processes in these and other kinds of felony cases involving adult defendants.  But conventional prosecutors generally remain uninterested in or hostile to restorative justice, even though most accept problem-solving courts and other alternatives to prosecution and incarceration.  This Article explores why mainstream U.S. prosecutors are disposed against restorative justice and suggest how their concerns might best be addressed by restorative justice proponents.

June 17, 2020 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (1)

Monday, June 15, 2020

"Paying on Probation: How Financial Sanctions Intersect with Probation to Target, Trap, and Punish People Who Cannot Pay"

The title of this post is the title of this lengthy new report released today by the Harvard Law School Criminal Justice Policy Program.  Here is the text of an email I received today concerning the release:

Today, CJPP releases its latest report entitled Paying on Probation: How Financial Sanctions Intersect with Probation to Target, Trap, and Punish People Who Cannot Pay.  In this report, we highlight how jurisdictions use probation to collect and enforce fines, fees, and restitution, and how linking these two systems together exacerbates the harms caused by each.  When payment of outstanding financial sanctions is made a condition of probation, failure to pay can result in being found in violation of probation and punished accordingly.

Through a 50 state survey and interviews with over 100 lawyers, judges, probation officers, and advocates, we explore how linking probation to financial sanctions leads to increased debt amounts, longer system involvement, and highly punitive responses to nonpayment.  On the basis of these and other findings, we call for a complete decoupling of probation and financial sanctions systems.

We release this report amidst a historic outcry for meaningful change in the wake of more senseless deaths at the hands of law enforcement.  As momentum on that front continues to build, we hope that this report can serve as a resource to advocates, lawmakers, and others who are thinking broadly about necessary and long overdue changes, including changes to other harmful aspects of our criminal legal system.

We’ve included a one-page summary of our findings, as well as the full report.  We hope this report can help you in your work.

Sharon Brett, Neda Khoshkhoo, and Mitali Nagrecha

June 15, 2020 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Reentry and community supervision | Permalink | Comments (0)

Wednesday, June 10, 2020

"Sentenced to Surveillance: Fourth Amendment Limits on Electronic Monitoring"

The title of this post is the title of this notable new paper authored by Kate Weisburd and recently posted to SSRN.  Here is its abstract:

As courts and legislatures increasingly recognize that “digital is different” and attempt to limit government surveillance of private data, one group is conspicuously excluded from this new privacy-protective discourse: the five million people in the United States on probation, parole, or other forms of community supervision.  This Article is the first to explore how warrantless electronic surveillance is dramatically transforming community supervision and,as a result, amplifying a growing privacy-protection disparity: those in the criminal legal system are increasingly losing privacy protections even while those not in the system are increasingly gaining privacy protections.  The quickly expanding use of GPS-equipped ankle monitors, as well as other forms of electronic searches, reflects unprecedented government surveillance that has yet to be regulated, scrutinized, or limited in any meaningful way.

This Article explores this phenomenon in its own right but also contends that the expanding disparity in privacy protections is explained by two underappreciated but significant shifts in Fourth Amendment jurisprudence.  First, on the theory that defendants “choose” surveillance in exchange for avoiding incarceration, courts increasingly invoke consent to justify otherwise unconstitutional surveillance of people on community supervision.  While the debate over criminal justice bargaining is not new, the expanded reliance on consent in this context reveals blind spots in the existing debate.  Second, courts also increasingly accept government arguments in favor of otherwise unconstitutional electronic monitoring under a general “reasonableness” standard, as opposed to the traditional “special needs” doctrine.  This insidious shift toward “reasonableness” threatens to jeopardize the precise interests the Fourth Amendment was designed to protect.  But even under a reasonableness standard, electronic surveillance of people on community supervision should be more circumscribed.  Ultimately, this Article reveals how the significance of these two shifts extends beyond electronic surveillance and represents a new frontier of sanctioning warrantless searches without any level of suspicion or exception to the warrant requirement.

June 10, 2020 in Criminal Sentences Alternatives, Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Technocorrections, Who Sentences | Permalink | Comments (0)

Tuesday, April 28, 2020

"Policy Reforms Can Strengthen Community Supervision: A framework to improve probation and parole"

Figure1_650The title of this post is the title of this lengthy new report produced by The Pew Charitable Trusts Public Safety Performance Project. Here are excerpts from the report's "Overview":

Since 1980, the nation’s community supervision population has ballooned by almost 240 percent. As of 2016, 1 in 55 U.S. adults (nearly 4.5 million people) are on probation or parole, more than twice the number incarcerated in state and federal prisons and local jails. Historically, probation and parole were intended to provide a less punitive, more constructive alternative to incarceration, but a growing body of evidence suggests that a frequent emphasis on surveillance and monitoring of people under supervision rather than on promoting their success, along with the resource demands of ever-larger caseloads, has transformed community supervision into a primary driver of incarceration. This shift has produced an array of troubling consequences, not only for individuals on probation and parole but for taxpayers and communities as well.

In recent years, a growing body of evidence on what works in community supervision has revealed a set of key challenges that undermine the system’s effectiveness and merit attention from policymakers:

• Community supervision is a leading driver of incarceration....

• Excessive rules can present barriers to successful completion of supervision....

• Agencies often inappropriately supervise low-risk individuals....

• Overextended supervision officers have less time to devote to high-risk, high-need individuals....

• Many people with substance use or mental health disorders do not receive treatment.... 

To address these problems, some supervision agencies have begun to embrace evidence-based practices that have been shown to improve outcomes and reduce recidivism. These include the use of research-based assessment tools to identify an individual’s level of risk for reoffending, graduated sanctions, such as increased reporting or short-term incarceration, to respond to violations of supervision rules, and incentives to encourage rule compliance.  As a result of these and other policy changes, 37 states have experienced simultaneous reductions in crime and community supervision rates.

Although those results are encouraging, states and agencies need time to analyze their systems and enact reforms on a much larger scale to ensure that probation and parole function more effectively.  To help states meet this challenge, The Pew Charitable Trusts, in partnership with Arnold Ventures, established the Advisory Council on Community Supervision to develop a policy framework for state lawmakers, court officers, and community corrections personnel. The council featured a diverse group of representatives from probation and parole agencies, the courts, law enforcement, affected communities, the behavioral health field, and academia. Drawing on its members’ extensive experience and knowledge, the council agreed on three broad goals for the next generation of community supervision: better outcomes for people on supervision, their families, and communities; a smaller system with fewer people on supervision; and less use of incarceration as a sanction for supervision violations, particularly breaches of the rules.

With those goals in mind, the council developed a menu of policies that state decision-makers and supervision administrators can use to reshape community supervision. Arnold Ventures supported the Robina Institute of Criminal Law and Criminal Justice at the University of Minnesota to examine the research underlying the policies and practices identified by the council, and where such an evidence base exists, it is summarized and cited in this framework. The recommendations are arranged according to seven broad objectives:

• Enact alternatives to arrest, incarceration, and supervision....

• Implement evidence-based policies centered on risks and needs....

• Adopt shorter supervision sentences and focus on goals and incentives....

• Establish effective and appropriate supervision conditions....

• Develop individualized conditions for payment of legal financial obligations....

• Reduce use of and pathways to incarceration.... 

• Support community supervision agencies.... 

April 28, 2020 in Collateral consequences, Criminal Sentences Alternatives, Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (0)

Tuesday, April 21, 2020

FAMM writes to DOJ and BOP to spotlight and lament "ineptness, if not the downright cruelty displayed by the BOP"

FAMM President Kevin Ring today sent this potent three-page letter to US Attorney General William Barr and BOP Director Michael Carvajal.  I recommend the letter in full, and here are some key paragraphs:

Yesterday, we received reports from dozens of people around the country that their loved ones, quarantined with the explicit understanding that they would move to home confinement in two weeks, were instead returned to general population and told that the rules had changed and that they were no longer going home.  At some facilities, family members had already arrived to pick up their loved ones whose quarantine period was ending.  These families were turned away. Many more families received phone calls from crying loved ones informing them that their release date had been revoked because of the abrupt change in rules.

If this were the first time something like this had happened, I might have found it heartbreaking but also a sign that the BOP was still finding its way in dealing with this crisis. But, because we have received identical accounts on multiple occasions over the past couple of weeks, I find myself baffled at the ineptness, if not the downright cruelty displayed by the BOP.  Families with loved ones in BOP facilities are already worried and anxious because of the rising number of COVID-19 infections and deaths.  They are desperate to get their loved ones home, especially those who are medically vulnerable.  To have the promise of early release snatched away under these circumstances is simply inexcusable.  They deserve to know what is happening.

Even before yesterday’s outrageous bait-and-switch, we were growing concerned with the BOP’s response to this crisis.  We have received numerous reports about case managers and counselors giving incorrect information and contradictory answers to people exploring early release options....

Tens of thousands of families across the country are deeply and understandably frightened for the health and safety of their incarcerated loved ones.  The people inside BOP’s facilities are confused, frightened, and vulnerable.  They deserve maximum transparency from the BOP.  Above all, they deserve that you act as Congress intended in the CARES Act: to protect vulnerable people in your care or send them home.

UPDATE: Politico has this new piece providing some more details under the headline "Trump administration reverses prisoner coronavirus release policy, advocates say."  Here are excerpts:

A coronavirus-related policy shift that could have cleared the way for thousands of federal prisoners to be sent home early was abruptly reversed this week, according to friends and family members of inmates.

Prison officials indicated earlier this month that inmates who had served less than half their sentences could still be considered for early release to limit the spread of infection behind bars. However, inmates in various prisons who had been put into prerelease quarantine almost two weeks ago were advised Monday by authorities that the policy had changed, lawyers and associates said. Officials would not waive a requirement that prisoners must have completed 50 percent their sentence to be eligible for early release during the pandemic, the inmates were told.

It was not immediately clear whether the apparent reversal applied across the board or if officials might still waive the policy in the places where the virus has had the most severe impact.

Still, the decision could dash the hopes of several well-known prisoners seeking release from federal custody, including former Trump campaign chairman Paul Manafort and former Trump personal lawyer Michael Cohen. Neither man has served half his sentence....

Bureau of Prisons spokespeople did not respond to requests for comment for this report....

While the initial set of criteria for home confinement included a requirement that inmates had completed half of their sentences, prison officials were told by their superiors on April 9 that rule was expected to be dropped. The decision was cited in a declaration a Bureau of Prisons staffer submitted in connection with a lawsuit challenging the detention of inmates at a federal prison complex in Oakdale, La., that has suffered a serious outbreak of the virus.

That guidance led prisoners at a number of federal facilities nationwide to be put into prerelease quarantine around that date, according to family members of inmates. Some family and friends were making plans to pick up their loved ones this week. Others had purchased air tickets to return home, only to be told Monday that the expected releases had been scuttled.

“They just posted a new BOP Bulletin a few minutes ago, reversing the Barr decision and requiring that those released to home confinement must have served 50% of their sentence,” Stephen Donaldson, son of an inmate at a prison in Georgia, wrote in an email to POLITICO. “I was hoping to have my father home. He tells me a number of other inmates had started the quarantine pre release and then were told of the reversal.”

April 21, 2020 in Criminal Sentences Alternatives, Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (1)

Friday, March 27, 2020

Guest post/question: "Will home confinement become a more (or less) attractive alternative to incarceration?"

6a00d83451574769e201b7c9134b4d970b-320wiA thoughtful and insightful colleague wrote to me this morning to pose the question in the title of this post.  I asked for a fuller write up of the query for posting, and here it is:

Section 5F1.2 of the federal sentencing guidelines defines “home detention” this way —

"Home detention” means a program of confinement and supervision that restricts the defendant to his place of residence continuously, except for authorized absences, enforced by appropriate means of surveillance by the probation office.  When an order of home detention is imposed, the defendant is required to be in his place of residence at all times except for approved absences for gainful employment, community service, religious services, medical care, educational or training programs, and such other times as may be specifically authorized.  Electronic monitoring is an appropriate means of surveillance for home detention. However, alternative means of surveillance may be used if appropriate.

For most of us, the last two weeks have genuinely been a period of home detention.  For me, I’ve been supervised in my confinement not by a probation officer, but my wife and daughters, who, should I venture out too far or too long, are quick to send me an electronic message to return home.  [I think this meets the term “alternative means of surveillance” as used in 5F1.2.]  And of course, I am not approved for absences for gainful employment (telework), religious services (cancelled), or educational or training programs (Zoom).

Later today, the House of Representatives will pass legislation that will expand the use of home confinement for federal prisoners to address the current COVID crisis, and Attorney General Barr has already issued a directive to the Bureau of Prisons to expand its use (see earlier posts here and here).  Many of us for years have advocated for the expanded use of home confinement and electronic monitoring as alternatives to imprisonment and to reduce the nation’s reliance on imprisonment for punishing convicted offenders.  I’m not sure, though, now that we all have experienced home confinement, whether it will be a more — or less— attractive alternative to incarceration.

Doug — What do you think?   

Readers — What do you think?

My first-cut answer to this great question is an answer I have been trotting out a lot these days: "Who the heck knows, but I am eager to find out."

I am certain many people are not enjoying their personal "home confinement," and will be finding it more and more burdensome in the weeks to come.  But I also know that personal "home confinement" still likely would be, and surely should be, seen as much less burdensome than actually being incarcerated. (A recent Marshall Project speaks to this reality: "No, Your Coronavirus Quarantine Is Not Just Like Being in Prison.")   I fear that many persons may be inclined to say, after the pandemic resolves, some version of "Criminals should always face a harder experience than I did during COVID."

That all said, so much of the reality of criminal justice administration can be shaped by economics, especially at the state level where incarceration costs take up a much larger percentage of overall state budgets.  Home confinement surely will always be much cheaper than imprisonment, and finding cheaper punishments may become extremely important (for states in particular) if we are facing a long recession that makes limited state resources even more scarce. 

Last but certainly not least, if some states moved a significant number of current prisoners into home confinement while others do not, we will be starting an interesting and important "natural experiment" on the efficacy of home confinement relative to imprisonment.  Though this "natural experiment" will not be able to give us conclusive data on whether home confinement serves public safety as well as imprisonment, advocacy for decarceration are likely to highlight this experience if we do not see a huge spike in crime in those states that have decarcerated more.

March 27, 2020 in Criminal Sentences Alternatives, Impact of the coronavirus on criminal justice, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (3)

Thursday, March 26, 2020

Will thousands of federal prisoners be eligible for home confinement under AG Barr's new guidelines?

Attorney General William Barr's new directive and guidelines to the Bureau of Prisons to prioritize home confinement for certain at-risk inmates can be seen as a small response to a big emergency.  This CBS News piece notes one response along these lines:

The announcement comes after calls from criminal justice advocacy groups to reduce prison populations nationwide in order to avoid what could be a disastrous and dangerous spread of the virus.  Kevin Ring, the president of Families against Mandatory Minimums, told CBS News his concern is that inmates will die unnecessarily if the bureau does not take "bolder" actions.  Ring says officials should consider other avenues like compassionate release.  "I don't think it's enough," Ring said.  "I think it's a small step in the right direction, but I think it's a peacetime move in a time of war."

Though I share the view that even bolder action is warranted, the extraordinary size and relatively low-risk profile of the federal prison population might still well mean that many thousands of federal inmates could be moved out of prison if BOP robustly implements AG Barr's guidance. The CDC states that "older adults and people of any age who have serious underlying medical conditions may be at higher risk for more serious complications from COVID-19," and possibly as much as 20% of the 175,000+ inmates might reasonably claim to be a-risk under CDC criteria and also claim to meet the other home confinement criteria set out by AG Barr.

Even assuming that only a very small percentage of prisoners, say, only 1 out of every 15 current federal prisoners, meet the home confinement criteria, that would still mean that well over 11,000 federal prisoners would be eligible to head home to serve out the rest of their sentences.  Because BOP has a well-earn reputation for being unwilling or unable to help prisoners get out of federal facilities early, I am not so confident that we will soon be seeing thousands of federal prisoners heading home.  But the directive from AG Barr now would seem to make that more of a possibility.

Prior related posts:

March 26, 2020 in Criminal justice in the Trump Administration, Criminal Sentences Alternatives, Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (7)

FAMM urges AG Barr to use new pending CARES Act provision to move federal prisoners into home confinement

I have not yet seen the exact language of the provision in the sure-to-pass federal CARES Act that expands the authority of the Justice Department and the Bureau of Prisons to move more persons from federal prison into home confinement.  But I have seen this new press release from FAMM, which starts this way:  

FAMM President Kevin Ring sent a letter today urging U.S. Attorney William Barr to immediately use his authority to release eligible people to home confinement as soon as the CARES Act becomes law.  The CARES Act, which was passed by the Senate last night and is expected to be approved by the House and signed by the president, permits the Director of the Federal Bureau of Prisons to lengthen the maximum amount of time that a prisoner may be placed in home confinement, if the U.S. Attorney General finds that emergency conditions will materially affect the functioning of the BOP.

“In order to prevent unnecessary deaths and suffering, the BOP needs to get as many people out of prison as it safely can and get them to home confinement immediately,” Ring said.  “Congress is giving the attorney general the authority to make that happen.  We urge the attorney general to act the moment this bill is signed into law.  Lives are at stake.”

Ring said the use of home confinement would also ease the burden on halfway houses, in which movement has been restricted, employment opportunities have been halted, and people are confined in tight quarters.  As with people in prison, halfway house residents cannot comply with CDC guidance regarding social distancing and good hygiene.

March 26, 2020 in Criminal justice in the Trump Administration, Criminal Sentences Alternatives, Impact of the coronavirus on criminal justice, Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (1)

Thursday, March 05, 2020

Will Oregonians vote to decriminalize all drug possession this November?

The question in the title of this post is prompted by this local news piece, headlined "Oregon Voters Could Decide This Year Whether To Decriminalize Drugs," about a ballot proposal that likely will be getting more and more attention in the months ahead.  Here are the basic details:

The proposed ballot measure, which has been financed by the New York-based Drug Policy Alliance, would make Oregon the first state to remove criminal penalties on possession of illegal drugs....

“By removing harsh criminal penalties, we want to bring people into the light,” said Anthony Johnson, a Portland political consultant who is a chief sponsor of the measure.  “We want people to be willing to talk to their friends and families and loved ones and get the treatment they need.”

The measure, now technically known as Initiative Petition 44, would reduce possession of illegal drugs — including heroin, methamphetamine and cocaine — to a non-criminal, $100 citation. And that citation could be waived if a person agrees to get a health assessment at a drug recovery center.  Drug trafficking and possession of large amounts of illegal drugs would continue to carry the same criminal penalties.

The proposed ballot measure also calls for providing a big increase in funding for drug treatment, which surveys suggest is more poorly funded in Oregon than in almost any state in the country. Most notably, the measure would divert most cannabis tax revenues away from schools and other services to provide at least $57 million a year for drug treatment. In addition, the measure calls for the state to take savings from reduced incarceration rates for drug crimes and put them into treatment programs.

Those efforts to boost treatment funding have been emphasized by measure petitioners. Several treatment advocates have endorsed the measure, including Richard Harris.  He founded Central City Concern in Portland and once headed the state’s office of Addictions and Mental Health Services. “The reality of it is that the effort to punish people because they have an addiction has always been a misplaced public policy,” Harris said.

But the initiative, which was first filed last August, has also raised concerns among many providers. Heather Jefferis is executive director for the Oregon Council for Behavioral Health, which represents many of the state’s major treatment providers. She said in a statement that, “We are not confident this proposal will address Oregon’s longstanding access crisis for Substance Use Disorder or Mental Health treatment services.”...

The decriminalization measure has met vociferous opposition from some law enforcement officials. Clackamas County District Attorney John Foote said he worries decriminalization would make it more socially acceptable to use dangerous drugs. “The trick is to not get people hooked in the first place,” he said. “If you get involved in heroin and methamphetamine, the road back is filled with failure.”

Oregon has already taken several steps toward reducing drug penalties. In 2017, the Legislature lowered several drug-possession charges from felonies to misdemeanors. And in many localities, prosecutors have increasingly focused on diverting drug offenders out of the criminal justice system and into treatment programs.

The Drug Policy Alliance, which helped fund Oregon’s 2104 cannabis legalization measure, has received major funding from billionaire investor George Soros. The group has so far provided virtually all the $850,000 donated to the measure campaign. Johnson said the campaign would be run by Oregonians and expects to attract many in-state donors.

The official website supporting Initiative Petition 44 (IP 44) is available at this link.  Here is how it describes the effort:

People suffering from addiction need help, not criminal punishments.  The Drug Addiction Treatment and Recovery Act, or IP 44, is a citizen initiative that Oregonians will vote on in November.  The idea is straightforward: instead of arresting and jailing people for drugs, we would begin using some existing marijuana tax money to pay for expanded addiction and recovery services, including supportive housing, to help people get their lives back on track.

This ballot measure doesn’t legalize any drugs.  Rather, it removes criminal penalties for small amounts of personal possession of drugs and directs people to drug treatment and recovery services.

March 5, 2020 in Criminal Sentences Alternatives, Drug Offense Sentencing, Offense Characteristics, Who Sentences | Permalink | Comments (0)

Friday, February 28, 2020

"Changing Course in the Overdose Crisis: Moving from Punishment to Harm Reduction and Health"

The title of this post is the title of this big new Vera Institute of Justice report.  Here is part of its Introduction:

[A]long with the reports and public dialogue about the opioid overdose crisis, there is increasing recognition that relying on criminalizing drug use and enforcement-led approaches does not work.  Indeed, it is now firmly established that the long-running “war on drugs” in the United States has not only failed to reduce illicit drug use and associated crime but has also contributed mightily to mass incarceration and exacerbated racial disparities within the criminal justice system, with a particularly devastating impact on Black communities.

Researchers at the Vera Institute of Justice (Vera) have long been working to provide accurate information about the latest evidence regarding justice system responses to problematic drug use and the opioid overdose crisis.  In so doing, Vera has highlighted innovative strategies that justice system actors are using to move away from enforcement-led approaches to drug use.  Furthermore, Vera, like others, has pushed for a public health approach to problematic drug use — one that simultaneously seeks to reduce contact with the justice system for people who use drugs and ensure that people who use drugs and do have such contact can access harm reduction, treatment, and recovery services to reduce the negative consequences of their drug use.

This report provides a look at the current intersection of problematic drug use and the criminal justice system. It offers practical guidance for practitioners, policymakers, and funders by compiling the wide range of interventions that communities can consider to minimize justice system contact for people who use drugs and to improve public health and safety.  In this report, Vera starts from the perspective that there is an urgent need to transform the criminal justice system’s response to drug use and to implement policies and practices that advance health.  The findings and recommendations in this report are guided by the principles of harm reduction — a set of practical strategies and ideas aimed at reducing the negative consequences of drug use without insisting on cessation of use — and by the conviction that problematic drug use should be addressed primarily as a public health problem rather than a criminal justice issue.

This report addresses the long-standing history of racialized drug policies in the United States and highlights the ways they have fueled mass incarceration and racial disparities at every point along the justice continuum.  It also shows that a new path forward requires not only bold leadership at the local level, where real change is more tangible, but also sustained investment in community organizations led by people who are directly impacted. This report is organized into four main sections.  To begin, it offers a brief overview of the context of the current drug overdose crisis and the ways that an enforcement-led approach to drug use has harmed people and communities.  The report then outlines the spectrum of community-based and justice system-based interventions that are currently applied in response to drug use at the local level.  The third section of the report describes how these interventions come together in two places: Ross County, Ohio, and Atlanta, Georgia.  These case studies describe responses in two different contexts, highlighting successes, common themes, and ongoing challenges.  The report concludes with key strategies and recommendations for changing the trajectory of justice system responses to drug use by drawing on these two case studies and interviews with advocates, scholars, and practitioners in the field.

February 28, 2020 in Criminal Sentences Alternatives, Drug Offense Sentencing | Permalink | Comments (0)

Thursday, February 27, 2020

"The Hidden Cost of the Disease: Fines, Fees, and Costs Assessed on Persons with Alleged Substance Use Disorder"

The title of this post is the title of this new paper authored by Meghan O'Neil and Daniel Strellman and available via SSRN.  Here is its abstract:

The age-old adage “crime doesn’t pay” is true in more ways than one. This article stems from two years of field work in problem-solving treatment courts; circuit, district, and federal courts; addiction treatment centers; and probation offices throughout the State of Michigan.  Persons experiencing substance use disorder (SUD) can rapidly amass criminal charges on any given day, given that the private use of controlled substances is illegal, as is driving while intoxicated.  These repeated behaviors can, and frequently do, culminate in incarceration, supervision (e.g., probation or parole), and hefty fines and fees.  Moreover, persons experiencing SUD are far from uncommon: overdose is now the leading cause of death for Americans under 50, and in 2018, focus groups with state district court judges in Michigan estimated that four out of every five criminal defendants were experiencing problematic substance use, illuminating the overwhelming degree to which SUD permeates our criminal justice system.

Practitioners, academics, and policymakers involved with the justice system ought to be concerned with the costs assessed in SUD cases because they can be potentially expensive to collect, excruciatingly burdensome on vulnerable people involved with the justice system trying to maintain sobriety and re-enter society, and present a generally inefficient method of punishment when the cost of collection outweighs the total amount which is ultimately collected by the state.  While crime doesn’t pay generally, it is particularly costly for vulnerable defendants experiencing SUD.  Identifying best practices for supervision of SUD offenders might present avenues to improve the cost effectiveness and efficiency of fines in ways that actually reduce subsequent offending — as fines were meant to do.

February 27, 2020 in Criminal Sentences Alternatives, Drug Offense Sentencing, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing | Permalink | Comments (0)

Thursday, February 20, 2020

"From Decarceration to E-Carceration"

I am sorry to have missed this article by Chaz Arnett with the title used for the title of this post when it was first posted to SSRN some months ago, but I am glad to have seen it as recently revised. Here is its abstract:

Each year, millions of Americans experience criminal justice surveillance through electronic ankle monitors. These devices have fundamentally altered our understanding of incarceration, punishment, and the extent of the carceral state, as they are increasingly offered as moderate penal sanctions and viable solutions to the problem of mass incarceration. They purportedly enable decarceration, albeit with enhanced surveillance in the community as the compromise. Proponents of the devices tout the public safety and cost benefits while stressing the importance of depopulating prisons and returning individuals to their communities. In recent years, an oppositional movement has developed, focused on highlighting the social harms of electronic monitoring as part of a burgeoning e-carceration regime, where digital prisons arise, not as substitutes to brick and mortar buildings, but as net-widening correctional strategy operationalized to work in tandem.

This Paper examines this debate on the effectiveness of electronic ankle monitors using a social marginalization framework. It argues that the current scholarly debate on the use of electronic ankle monitors is limited because it fails to consider the potential harm of social marginalization, particularly for historically subordinated groups subjected to this form of surveillance. It uses system avoidance theory to elucidate the argument that intensive criminal justice surveillance has the counterproductive effect of causing those subjected to surveillance to avoid institutions necessary for adequate reintegration and reduction in recidivism. It offers a theory of the carceral state as malleable, extending beyond prison walls, expanding our carceral reality, and placing great strains on privacy, liberty, and democratic participation. Ultimately, it stresses that a move from decarceration to e-carceration, or from mass incarceration to mass surveillance, will likely fail to resolve, and may exacerbate, one of the greatest harms of mass incarceration: the maintenance of social stratification. Thus, adequately addressing this challenge will demand a more robust and transformative approach to criminal justice reform that shifts a punitive framework to a rehabilitative one focused on proven methods of increasing defendants’ and former offenders’ connections to their community and civic life, such as employment assistance programming, technical and entrepreneurial skill development, supportive housing options, and mental health services.

February 20, 2020 in Criminal Sentences Alternatives, Prisons and prisoners, Race, Class, and Gender, Reentry and community supervision, Scope of Imprisonment, Technocorrections | Permalink | Comments (0)

Tuesday, February 18, 2020

Effective looks at an effective look at the reality of community supervision

The-second-chance-club-9781982128593_lgI have now seen a number of positive review of the new book by Jason Hardy, The Second Chance Club: Hardship and Hope After Prison.  Here is the description of the book from the publisher's website:

A former parole officer shines a bright light on a huge yet hidden part of our justice system through the intertwining stories of seven parolees striving to survive the chaos that awaits them after prison in this illuminating and dramatic book.  Prompted by a dead-end retail job and a vague desire to increase the amount of justice in his hometown, Jason Hardy became a parole officer in New Orleans at the worst possible moment.  Louisiana’s incarceration rates were the highest in the US and his department’s caseload had just been increased to 220 “offenders” per parole officer, whereas the national average is around 100.  Almost immediately, he discovered that the biggest problem with our prison system is what we do — and don’t do — when people get out of prison.

Deprived of social support and jobs, these former convicts are often worse off than when they first entered prison and Hardy dramatizes their dilemmas with empathy and grace. He’s given unique access to their lives and a growing recognition of their struggles and takes on his job with the hope that he can change people’s fates — but he quickly learns otherwise.  The best Hardy and his colleagues can do is watch out for impending disaster and help clean up the mess left behind.  But he finds that some of his charges can muster the miraculous power to save themselves. By following these heroes, he both stokes our hope and fuels our outrage by showing us how most offenders, even those with the best intentions, end up back in prison — or dead — because the system systematically fails them. Our focus should be, he argues, to give offenders the tools they need to re-enter society which is not only humane but also vastly cheaper for taxpayers.

As immersive and dramatic as Evicted and as revelatory as The New Jim Crow, The Second Chance Club shows us how to solve the cruelest problems prisons create for offenders and society at large.

I hope to find time to read this new book, but in the meantime I have already seen these helpful substantive reviews from some notable reviewers:

February 18, 2020 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Friday, February 07, 2020

Great coverage of new and notable 2019 laws at Collateral Consequences Resource Center

Regular readers are used to my regularly reminder to regularly check out work over at the Collateral Consequences Resource Center.  Doing so recently brings up a terrific on-going series of reviews of new laws in place in 2019 on a range of collateral-consequences-related concerns.  Here are the first four post in the series now available:

New 2019 laws restore voting rights in 11 states

New 2019 laws reduce workplace barriers for people with a criminal record

Record-breaking number of new expungement laws enacted in 2019

New 2019 laws on diversion and other non-conviction dispositions

UPDATE: The fine CCRC folks have now posted "the fifth and final comment on new 2019 laws restoring rights or delivering record relief":

New 2019 laws on immigration consequences and driver’s license suspension

February 7, 2020 in Collateral consequences, Criminal Sentences Alternatives, Who Sentences | Permalink | Comments (0)

Monday, December 09, 2019

"The Problem of Problem-Solving Courts"

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

The creation of a specialized, “problem-solving” court is a ubiquitous response to the issues that plague our criminal legal system.  The courts promise to address the factors believed to lead to repeated interactions with the system, such as addiction or mental illness, thereby reducing recidivism and saving money.  And they do so effectively — at least according to their many proponents, who celebrate them as an example of a successful “evidence-based,” data-driven reform.  But the actual data on their efficacy is underwhelming, inconclusive, or altogether lacking.  So why do they persist?

This Article seeks to answer that question by scrutinizing the role of judges in creating and sustaining the problem-solving court movement.  It contends problem-solving courts do effectively address a problem — it is just not the one we think.  It argues that these courts revive a sense of purpose and authority for judges in an era marked by diminishing judicial power.  Moreover, it demonstrates that the courts have developed and proliferated relatively free from objective oversight.  Together, these new insights help explain why the problem-solving court model endures.  They also reveal a new problem with the model itself — its entrenchment creates resistance to alternatives that might truly reform the system.

December 9, 2019 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Thursday, November 21, 2019

"The Steep Costs of Criminal Justice Fees and Fines: A Fiscal Analysis of Three States and Ten Counties"

The title of this post is the title of this big new notable report published by the Brennan Center for Justice and "produced with research assistance from the Texas Public Policy Foundation and Right on Crime." Here is the first part of the 68-page report's executive summary:

The past decade has seen a troubling and well-documented increase in fees and fines imposed on defendants by criminal courts. Today, many states and localities rely on these fees and fines to fund their court systems or even basic government operations.

A wealth of evidence has already shown that this system works against the goal of rehabilitation and creates a major barrier to people reentering society after a conviction.  They are often unable to pay hundreds or thousands of dollars in accumulated court debt. When debt leads to incarceration or license suspension, it becomes even harder to find a job or housing or to pay child support. There’s also little evidence that imposing onerous fees and fines improves public safety.

Now, this first-of-its-kind analysis shows that in addition to thwarting rehabilitation and failing to improve public safety, criminal-court fees and fines also fail at efficiently raising revenue. The high costs of collection and enforcement are excluded from most assessments, meaning that actual revenues from fees and fines are far lower than what legislators expect. And because fees and fines are typically imposed without regard to a defendant’s ability to pay, jurisdictions have billions of dollars in unpaid court debt on the books that they are unlikely to ever collect. This debt hangs over the heads of defendants and grows every year.

This study examines 10 counties across Texas, Florida, and New Mexico, as well as statewide data for those three states.  The counties vary in their geographic, economic, political, and ethnic profiles, as well as in their practices for collecting and enforcing fees and fines.

November 21, 2019 in Collateral consequences, Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Recommended reading | Permalink | Comments (0)

Saturday, October 26, 2019

Philadelphia Inquirer provides detailed coverage of "The Probation Trap"

The local paper in the City of Brotherly Love has this important new series highlighting that the Keystone State is not very loving when it comes to how it treats people caught up in community supervision. The series is titled "The Probation Trap" and here is the subheading for the coverage: "Pennsylvania has one of the nation's highest rates of supervision, driven by unusual laws that leave judges unchecked.  But many people fail, ending up in jail or in a cycle of ever more probation." 

Here is some of the introduction explaining "The Problem with Probation":

In Pennsylvania, as across the country, crime rates have fallen to their lowest point in decades. But over that same time, the rate of incarceration in Pennsylvania state prisons and county jails nearly quadrupled, while the number on probation or parole also grew almost four times larger, to 290,000 people.

Counting jail, prison, probation, and parole, Pennsylvania now has the nation’s second-highest rate of people under correctional control. Probation and parole account for three-quarters of that — a phenomenon critics of mass incarceration call “mass supervision.”

Nationwide, one in 55 adults is on probation or parole. In Pennsylvania, that’s one in 35 adults. In Philadelphia: one in 23 adults.

African American adults in Philadelphia are disproportionately impacted. One in 14 is under supervision. Philadelphia’s county supervision rate is the highest of any big city — and 12 times the rate of New York City. ‍

What’s driving this? To find answers, we watched hundreds of hearings, interviewed scores of people, and analyzed 700,000 case dockets from 2012 to 2018.

What we found is a system virtually ungoverned by law or policy, resulting in wildly disparate versions of justice from one courtroom to the next.

We found a system that routinely punishes poverty, mental illness, and addiction. We met a woman who was jailed two months for failing to report to probation because she wasn’t permitted to bring her newborn child and couldn’t afford a babysitter. We met a man who was locked up because he didn’t have $227 to pay for a court-ordered drug evaluation.

As a result, some people remain under court control for years after being convicted of low-level crimes, resentenced two, three, four, or five times over for infractions including missing appointments, falling behind on payments, or testing positive for marijuana. Probation and parole violations are flooding the court system, filling city jails and driving up state prison populations.

Many other states, recognizing similar problems, have reformed their systems. Can Pennsylvania?

Here are the main articles in the series:

"Living in Fear:  Probation is meant to keep people out of jail. But intense monitoring leaves tens of thousands across the state at risk of incarceration."

"Judges Rule: When it comes to probation, Pennsylvania has left judges unchecked to impose wildly different versions of justice."

"Punishing Addiction: Courts recognize substance-use disorder is a disease. Yet some judges continue punishing relapse with ever-longer probation and even prison."

October 26, 2019 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Race, Class, and Gender, Reentry and community supervision, Who Sentences | Permalink | Comments (1)