Thursday, November 01, 2018

Pew reports on persons on probation or parole in US

The folks at Pew have this new posting titled in full "1 in 55 U.S. Adults Is on Probation or Parole: Better strategies can cut that rate while protecting public safety, decreasing drug misuse, and reducing incarceration." Here is how the posting gets started:

More than a decade ago, policymakers around the country seeking to protect public safety, improve accountability, and save taxpayer dollars initiated a wave of bipartisan reforms that has reduced the number of people behind bars in many states. Because of their high costs and visibility, prisons garnered substantial public attention on criminal justice, while relatively little was paid to the largest part of the correctional system: community supervision.

Probation and parole populations grew 239 percent from 1980 to 2016, and with that came a dramatic rise in the per capita rate of community supervision, which was 1 in 55 U.S. adults — nearly 2 percent — in 2016.  Although the community corrections population declined 11 percent since its all-time peak in 2007, it is still twice the size of the population incarcerated in state and federal prisons and local jails, combined. Notably, supervision rates vary considerably by state, from 1 in 18 in Georgia to 1 in 168 in New Hampshire, reflecting the difference in practices and policies across the nation.

This massive scale has too often prevented the community supervision system from effectively delivering on its mission to promote public safety through behavioral change and accountability.  Although about half of the roughly 2.3 million people who complete their probation and parole terms each year do so successfully, nearly a third fail for a range of reasons, and almost 350,000 of those individuals return to jail or prison, often for violating the rules rather than committing new crimes.

November 1, 2018 in Criminal Sentences Alternatives, Data on sentencing, Detailed sentencing data, Reentry and community supervision | Permalink | Comments (0)

Sunday, October 14, 2018

"Unstitching Scarlet Letters? Prosecutorial Discretion and Expungement"

In this post last week, I noted a New York Times article headlined "Convicts Seeking to Clear Their Records Find More Prosecutors Willing to Help." A helpful reader made sure I also posted about this article on SSRN with the title of this post authored by Brian Murray. Here is its abstract:

Criminal record history information pejoratively brands those who contact the criminal justice system, whether they were guilty or not.  In theory, the remedy of expungement is designed to mitigate the unanticipated, negative effects of a criminal record.  But the reality is that prosecutors — driven by a set of incentives that are fundamentally antithetical to expungement — control many of the levers that determine who is able to obtain expungement.  The disjunction between the prosecutorial mindset and the minister of justice ideal could not be starker and the consequences can be significant. 

Prosecutors, as agents of the state, can either argue forcefully for the retention or deletion of such information, dramatically affecting the situation of an arrestee or ex-offender given the pervasive web of collateral consequences associated with a criminal record.  This discretion, as it relates to theories of punishment, prosecutorial discretion overall, the ethical responsibilities of prosecutors to do justice, and public policy interests, has been grossly under-analyzed despite the serious implications it has for the prosecutorial role within the criminal justice system and for reentry efforts. 

While many scholars have paid attention to how prosecutorial incentives conflict with the theoretical responsibilities of prosecutors in charging, plea-bargaining, and post-conviction situations involving innocence, none have provided a theoretical framework focused on the role of the prosecutor during expungement.  Many of the complicated incentives that undermine holistic prosecution during those earlier phases exist during the expungement process as well.  But scholarly responses to those incentives are not adequate given the range of considerations during the expungement phase.  As such, this Article argues that scholarly discussions related to prosecutorial discretion need to extend their focus beyond the exercise of prosecutorial judgment pre-trial or the questions of factual and legal guilt.

Given that the primary role of the prosecutor is to do “justice,” this Article calls for increased attention to the exercise of discretion after the guilt phase is complete, specifically in the context of expungement of non-conviction and conviction information.  In doing so, it hopes to provide a framework for exercising such discretion, and to initiate additional conversation about the role of prosecutors during the phases following arrest and prosecution.

October 14, 2018 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Wednesday, October 10, 2018

"Reconceptualizing Criminal Justice Reform For Offenders With Serious Mental Illness"

The title of this post is the title of this notable new paper authored by E. Lea Johnston and available via SSRN. Here is its abstract:

Roughly 14% of male inmates and 31% of female inmates suffer from one or more serious mental illnesses, such as schizophrenia, bipolar disorder, and major depressive disorder. Policymakers and the public widely ascribe the overrepresentation of offenders with serious mental illness in the justice system to the “criminalization” of the symptoms of this afflicted population.  The criminalization theory posits that the criminal justice system has served as the primary agent of social control over symptomatic individuals since the closure of state psychiatric hospitals in the 1950s and the tightening of civil commitment laws.  The theory identifies untreated mental illness as the origin of individuals’ criminal justice involvement and mental health treatment as the clear solution to breaking their cycle of recidivism.  This article evaluates the three main bodies of evidence offered in support of the criminalization theory: individuals’ movement from psychiatric hospitals to jails and prisons (“transinstitutionalization”), the heightened policing of individuals with serious mental illness, and the science linking mental illness and crime. This evaluation reveals that the criminalization theory — the understanding that animates most current policies aimed at offenders with serious mental illness—largely rests on intuitive assumptions that are often unverified and sometimes false.

A growing body of behavioral sciences literature constructs an alternative account of the relationship between mental illness and crime.  Coined the “normalization theory,” it relies upon decades of research that demonstrate that clinical factors, such as diagnosis and treatment history, are not predictive of criminal activity.  Instead, the same risks and needs that motivate individuals without mental illness also drive those with mental disorders to commit crimes.  These “criminogenic risks” include, among others, substance abuse, employment instability, family problems, and poorly structured leisure time. Behavioral science researchers reject the premise that individuals with serious mental illness are overrepresented in the justice system because these individuals’ illnesses directly lead to criminal behavior. Instead, they theorize that serious mental illnesses fuel the greater accumulation and concentration of typical criminogenic risk factors.  This recognition holds dramatic potential for the redesign of criminal justice programs.  Programs that target the criminal behavior of offenders with mental illness should principally focus on addressing criminogenic risk factors that can be mitigated.  Officials should also address mental health needs, but only to the extent necessary to facilitate a better criminogenic risk profile and fulfill constitutional obligations.  Moreover, correctional experience suggests that institutions should allocate scarce programmatic resources according to offenders’ risk of reoffending and potential to achieve programmatic goals. These insights, which federal agencies are beginning to recognize, hold radical implications for the redesign — and possibly the existence — of jail diversion, mental health courts, specialized probation and parole, and reentry programs for offenders with serious mental illness. 

October 10, 2018 in Criminal Sentences Alternatives, Offender Characteristics, Prisons and prisoners, Who Sentences | Permalink | Comments (1)

Tuesday, September 25, 2018

New Pew issue brief reviews probation and parole in the US

The folks at Pew have this interesting new Issue Brief titled "Probation and Parole Systems Marked by High Stakes, Missed Opportunities: 1 in 55 adults is under community supervision." Here are excerpts from its "Overview":

Incarceration has long dominated the national conversation on criminal justice, because the U.S. prison population skyrocketed between the 1980s and late 2000s.  Starting in 2007, policymakers seeking to protect public safety, improve accountability, and save taxpayer dollars initiated a wave of bipartisan reforms that has reduced the number of people behind bars in many states.  Yet this movement has largely overlooked the largest part of the correctional system: community supervision.

Nationwide, 4.5 million people are on probation or parole—twice the incarcerated population, including those in state and federal prisons and local jails.  The growth and size of the supervised population has undermined the ability of local and state community corrections agencies to carry out their basic responsibilities to provide the best public safety return on investment as well as a measure of accountability.  Although research has identified effective supervision and treatment strategies, the system is too overloaded to implement them, so it sends large numbers of probationers and parolees back to prison for new crimes or for failure to follow the rules.

As part of a collaborative effort to improve the nation’s community corrections system, The Pew Charitable Trusts and the Laura and John Arnold Foundation analyzed the leading research and identified the most pressing problems and some promising solutions.  The available data leave many questions unanswered, but this review reveals key insights and challenges many assumptions about supervision.  Among the findings:

Community corrections is marked by considerable growth and scale, disproportionate representation of men and people of color, and a majority of people who committed nonviolent offenses....

Improvements in supervision offer opportunities to enhance public safety, decrease drug misuse, and reduce incarceration....

Policy changes can reduce correctional control and improve public safety.

These findings demonstrate the need for greater scrutiny of the community corrections system by policymakers and the public.  They also reinforce an emerging consensus among leading practitioners for a fundamental change in the vision and mission of supervision: from punishing failure to promoting success.

September 25, 2018 in Criminal Sentences Alternatives, Data on sentencing, Reentry and community supervision | Permalink | Comments (0)

Tuesday, September 11, 2018

"Digital Expungement"

The title of this post is the title of this paper I just saw on SSRN authored by Eldar Haber.  Here is its abstract:

Digital technology might lead to the extinction of criminal rehabilitation.  In the digital era, criminal history records that were expunged by the state remain widely available through commercial vendors (data brokers) who sell this information to interested parties, or simply through a basic search of the Internet.  The wide availability of information on expunged criminal history records increases the collateral consequences a criminal record entails, thereby eliminating the possibility of reintegration into society. Acknowledging the social importance of rehabilitation, policymakers attempted to regulate the practices of data brokers by imposing various legal obligations and restrictions, usually relating to the nature and accuracy of criminal records and the purposes for which they may be used.  These regulations have been proven insufficient to ensure rehabilitation. But regardless of future outcomes of such regulatory attempts, policymakers have largely overlooked the risks of the Internet to expungement.  Many online service providers and hosting services enable the wide dissemination and accessibility of criminal history records that were expunged.  Legal research websites, websites that publish booking photographs taken during an investigation (mugshots), social media platforms, and media archives all offer access to expunged criminal histories, many times without charge, and all with the simple use of a search engine. Without legal intervention, rehabilitation in the digital age in the U.S. has become nearly impossible.

This Article offers a legal framework for reducing the collateral consequences of expunged criminal records by offering to re-conceptualize the public nature of criminal records. It proceeds as follows.  After an introduction, Part II examines rehabilitation and expungement as facets of criminal law.  Part III explores the challenges of digital technology to rehabilitation measures.  Part IV evaluates and discusses potential ex-ante and ex-post measures that could potentially enable rehabilitation in the digital age.  It argues that while ex-post measures are both unconstitutional and unrealistic for enabling digital expungement, ex-ante measures could be a viable solution.  Accordingly, this Article suggests implanting a graduated approach towards the public nature of criminal history records, which would be narrowly tailored to serve the interests of rehabilitation-by-expungement. Finally, the last Part concludes the discussion and warns against reluctance in regulating expunged criminal histories.

September 11, 2018 in Collateral consequences, Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Reentry and community supervision, Technocorrections | Permalink | Comments (0)

Monday, September 10, 2018

Events and resources covering Ohio sentencing and prison reform ballot initiative known now as Issue 1

Depc_testA few months ago, I flagged here the interesting and intricate drug sentencing and prison reform initiative headed for the November 2018 ballot here in Ohio.  Originally called the "Neighborhood Safety, Drug Treatment and Rehabilitation Amendment," the initiative now is just known within Ohio as Issue 1.   With early voting in Ohio now just a month away and Election Day 2018 not much more than 50 days away, the new Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law has a lot of Issue 1 programming about to begin and has a lot of resources already assembled on its website.

This Thursday, September 13 at 12noon, starts a series five public panels under the title Ballot Insights.  Registration for these panels is available at this link, where you can also find more details on scheduled speakers and on which aspects of the Issue 1 will be the focus for particular panels (e.g., a first panel in October is focused on the Issue 1 provisions expanding "earned time credit" for Ohio prisoners to reduce their sentences through rehabilitative programming; a second panel in October looks at how to ensure any increased funding for drug treatment is utilized effectively). 

I have the pleasure of moderating the first Issue 1 panel this coming Thursday, which is titled simply "Neighborhood Safety, Drug Treatment and Rehabilitation Amendment: Step in the Right Direction."  This panel will include a leading proponent of Issue 1 (Steven JohnsonGrove of the Ohio Justice & Policy Center), a leading opponent of Issue 1 (Louis Tobin of the Ohio Prosecuting Attorneys Association), and a leading Ohio criminal justice reform expert (Daniel Dew of The Buckeye Institute).  The bios of the presenters are detailed at this link.

In addition to all the panels, DEPC has also created a Resources Page for Issue 1, which includes links to the ballot language, position statements from various groups and select media coverage.  DEPC is also building out a Commentary Page on Issue 1 for publishing original commentary that the Center has solicited. (A pair of public health scholars submitted this first commentary for publication on the DEPC site.)

 Prior related posts:

September 10, 2018 in Criminal Sentences Alternatives, Drug Offense Sentencing, Elections and sentencing issues in political debates, Prisons and prisoners, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Saturday, August 18, 2018

Discussions of criminal justice supervision and collateral consequences that merit extended conversations

This past week I saw two notable commentaries over at The Conversation. Here are links and brief excerpts:

Vincent Schiraldi, "Parole and probation have grown far beyond resources allocated to support them"

Today, there are twice as many people supervised on parole or probation as are incarcerated in the U.S....

Thousands of probation and parole officers supervise nearly 5 million people across the U.S. However, as the number of people under community corrections has swelled, resources for officers have lagged. While twice as many people are supervised in the community as are incarcerated, 9 out of 10 correctional dollars is funneled to prisons according to a report from 2009, the most recent year with available data....

In 2017, every major community corrections association in the U.S., along with 45 elected or appointed prosecutors and 35 probation and parole officials as well as myself wrote in a statement: “Designed originally as an alternative to incarceration, community corrections has become a significant contributor to mass incarceration” that should be downsized while reinvesting the savings in “improving community based services and supports for people under supervision.”

Stanley Andrisse, "I went from prison to professor — here’s why criminal records should not be used to keep people out of college"

Beginning next year, the Common Application – an online form that enables students to apply to the 800 or so colleges that use it – will no longer ask students about their criminal pasts.

As a formerly incarcerated person who now is now an endocrinologist and professor at two world-renowned medical institutions — Johns Hopkins Medicine and Howard University College of Medicine — I believe this move is a positive one.  People’s prior convictions should not be held against them in their pursuit of higher learning.

While I am enthusiastic about the decision to remove the criminal history question from the Common Application, I also believe more must be done to remove the various barriers that exist between formerly incarcerated individuals such as myself and higher education.

August 18, 2018 in Collateral consequences, Criminal Sentences Alternatives, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (0)

"Divided We Fall: Parole Supervision Conditions Prohibiting Inter-Offender Associations"

The title of this post is the title of this new article recently posted on SSRN and authored by James Binnall. Here is the abstract:

In the United States, almost all criminal offenders who serve a term of imprisonment are subject to a period of post-incarceration supervision.  Commonly known as parole, this form of supervision requires former inmates to comply with a variety of conditions.  A nationwide survey of standard parole conditions reveals that a vast majority of jurisdictions categorically restrict parolees’ associations with other parolees, convicted criminals, and/or convicted felons.  These blanket offender no-association conditions ostensibly presume that former offenders are irreparably flawed, homogenous, and that inter-offender relationships are uniformly criminogenic.

This article questions those presumptions, suggesting that offender no-association conditions endorse an untenable conceptualization of former offenders, a rejection of evidence-based parole practices, an uninformed view of inter-offender associations, and a superficial application of criminological theory.  This article further argues that by categorically prohibiting all inter-offender associations, offender no-association conditions foreclose strengths-based approaches to reentry and inhibit mechanisms that can foster criminal desistance. In this way, such conditions unnecessarily subvert the rehabilitative goal of parole, likely making them impermissibly overbroad in their current form.

August 18, 2018 in Collateral consequences, Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (0)

Friday, August 17, 2018

New research finds racial bias infects sex-offender classification system under SORNA

A helpful reader made sure I did not miss this Crime Report piece headlined "Sex Offender Registration Influenced by Racial Bias, Ohio Study Claims." Here are excerpts:

The classification of sex offenders based on the risks they pose to the community following their release from prison is subject to racial bias, according to a study published in the Criminal Justice Policy Review.  African-American sex offenders were found to be two-and a half times likelier to be inaccurately designated as high-risk than their Caucasian counterparts by a state-sponsored risk-assessment instrument, said the study, which was based on a sample of 673 sex offenders in the state of Ohio who were convicted of a sex crime and released between 2009 and 2011.

Risk assessments that were overly weighted towards prior criminal records led to the skewed assessments, argued the authors, Bobbie Ticknor of Valdosta State University, and Jessica J. Warner of Miami University Regionals.  “Approximately 85 percent of the individuals classified in the highest tier, who theoretically posed the greatest danger, did not have a conviction for a new sex offense after the five-year follow up period,” the study found, adding that 15 percent of “Tier 1” offenders were under-classified, meaning their threat-level was underestimated.

The sample was limited to offenders who had received a classification under the Sex Offender Registration and Notification Act (SORNA) system established by the 2006 Adam Walsh Child Protection and Safety Act.  The law established guidelines aimed at protecing communities from convicted sex offenders who might pose continued threats to their community following release. SORNA is an offense-based classification system where offenders are assigned to one of three tiers according to “dangerousness.”  Tier designation is determined by prior offenses and the severity of the charge and conviction.... 

The reason why racial bias may influence the accuracy of SORNA designations lies in the fact that SORNA relies heavily on the criminal history of an individual, said the authors. The study cites prior research which produced evidence that “black defendants are less likely to accept a plea deal due to mistrust in the system…”  Going to trial increases the chances of being found guilty of more severe charges and receiving lengthier sentences, especially for minority defendants, according to the authors.

The study being discussed here is available at this link and is published under the title "Evaluating the Accuracy of SORNA: Testing for Classification Errors and Racial Bias." Here is its abstract:

Since its enactment in 2006, several researchers have explored whether the Sex Offender Registration and Notification Act (SORNA) classification system under the Adam Walsh Act improves outcomes such as increasing public safety and lowering recidivism of sexual offenders.  This study adds to the growing body of literature by exploring how accurate this offense-based classification system is in terms of recidivism and if there is any racial bias in tier designation.

Specifically, results from contingency analyses suggest that several sex offenders are overclassified, meaning that they were given a classification status that included more supervision and oversight although they did not commit another offense. Furthermore, African Americans were two-and-a-half times more likely to be overclassified than Caucasians which suggests racial bias may exist in this government-sponsored classification system.  Implications for communities and the continued use of the SORNA are presented.

August 17, 2018 in Collateral consequences, Criminal Sentences Alternatives, Data on sentencing, Detailed sentencing data, Race, Class, and Gender, Sex Offender Sentencing | Permalink | Comments (0)

Thursday, August 02, 2018

"The Digital Wilderness: A Decade of Exile & the False Hopes of Lester Packingham"

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

The United States Supreme Court’s decision in Packingham v. North Carolina announced that people who have been convicted of sex offenses have a First Amendment right to access social media platforms.  In reaching its conclusion, the Court reasoned that the public square — and the communicative activity that the First Amendment protects — now exists on these platforms “in particular.”

Despite Packingham’s promise of free speech for arguably the most despised, feared, and misunderstood group of people in America, it did not directly address ways in which both the state and private actors keep Packingham’s beneficiaries in digital darkness.  As the rolls of America’s sex offense registries swell to near one million people in 2018, sustained exclusion from platforms that society increasingly relies on for civic engagement functionally cripples the ability of an enormous population of people to reintegrate, participate, and effectively challenge laws and policies that target them long after they have exited the criminal justice system.  Far from being dangerous or illicit, the voices of people directly impacted are necessary to properly balance a system which has all but foreclosed redemption, and thus their inclusion gives life not only to the values at the heart of Packingham, but to our conception of justice as well.

August 2, 2018 in Collateral consequences, Criminal Sentences Alternatives, Sex Offender Sentencing, Technocorrections, Who Sentences | Permalink | Comments (3)

Wednesday, August 01, 2018

Prez Trump says he thinks "we’ll be able to" get the FIRST STEP Act passed into law

President Donald Trump had a White House meeting with inner-city pastors today, and the even made headlined because on pastor said, as reported here, that Prez Trump may go down as the "most pro-black president" in recent history. Rather than engage with that comment, I am eager to note some of Prez Trump's comments about prison reform at the event. This link provides a transcript, and here are statements by Prez Trump that caught my eye:

Our focus on opportunity for every citizen includes helping former prisoners.  These citizens reentering society have had a tough time.  We want them to get jobs so they don’t have to return to a life of crime and go back into the same prison where they just got out....

We passed the First Step Act through the House, and we’re working with the Senate to pass that into law.  And I think we’ll be able to do it. When we say “hire American,” we mean all Americans — every American, everybody.

And, you know, it’s something that should have been done a long time ago — prison reform....  But a lot of people are saying, “You mean it’s the Trump administration that’s doing this?”  You understand.  They don’t believe it.  But we’re really making a tremendous amount of progress, and it’s a beautiful thing to watch.

I am not prepared to praise the Trump Administration for "making a tremendous amount of progress" unless and until I see laws enacted and real reforms implemented. But as Prez Trump continues to talk the talk on prison reform, I want to remain hopeful that real action will follow.

August 1, 2018 in Criminal Sentences Alternatives, Prisons and prisoners, Who Sentences | Permalink | Comments (1)

"What Is Prison Abolition?"

The title of this post is the headline of this article in The Nation, which carries the subtitle "The movement that is trying to think beyond prisons as a tool to solve society’s problems." Here is an excerpt:

The prison-abolition movement is a loose collection of people and groups who, in many different ways, are calling for deep, structural reforms to how we handle and even think about crime in our country.  There are de facto figureheads (such as Angela Davis and Ruth Wilson Gilmore, the most famous contemporary abolitionists) and organizations (such as Critical Resistance, INCITE!, the Movement for Black Lives, the National Lawyers Guild, and Incarcerated Workers Organizing Committee — all of which, if not explicitly abolitionist, at least engage in abolitionist ethics), and there are converging or at least overlapping political ideologies (anarchist, socialist, libertarian), but there is no structured organizing group or coalition.  Masai Ehehosi, a co-founder of Critical Resistance and longtime member of the New Afrikan Independence Movement, pointed me to the overlap between organizations promoting civil rights and abolitionists: “We want freedom” can just as easily be applied to ending Jim Crow or the New Jim Crow, to unlocking iron shackles or swinging open prison doors.

The “movement” thus operates with affinity groups, with various organizations working in prisoner support, prisoner advocacy, political advocacy, or community education. “And when something big happens,” as Azzurra Crispino, prison labor activist and philosopher, explained to me, “we all show up as a coalition, and we don’t interfere” with each other’s work.

Abolitionists believe that incarceration, in any form, harms society more than it helps.  As Angela Davis argues, prisons are an obsolete institution because they exacerbate societal harms instead of fixing them.  “Are we willing to relegate ever larger numbers of people from racially oppressed communities to an isolated existence marked by authoritarian regimes, violence, disease, and technologies of seclusion that produce severe mental instability?” Davis has written.  Even if we were to greatly diminish the current prison population, even if we were to cut it in half but keep the prison complex intact, we would still be consigning millions of people to isolation and violenc e— and that’s a form of inhumanity that abolitionists can’t abide.  Moreover, Davis contends, mass imprisonment “reproduce[s] the very conditions that lead people to prison.”

August 1, 2018 in Criminal Sentences Alternatives, Prisons and prisoners, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (3)

Monday, July 23, 2018

"Beyond Strict Scrutiny: Forbidden Purpose and the 'Civil Commitment' Power"

The title of this post is the title of this new paper that I just noticed on SSRN that was authored by Eric Janus. Here is the abstract:

Sex offender civil commitment (SOCC) is a massive deprivation of liberty as severe as penal incarceration.  Because it eschews most of the "great safeguards" constraining the criminal power, SOCC demands careful constitutional scrutiny.  Although the Supreme Court has clearly applied heightened scrutiny in judging civil commitment schemes, it has never actually specified where on the scrutiny spectrum its analysis falls.

This article argues that standard three-tier scrutiny analysis is not the most coherent way to understand the Supreme Court’s civil commitment jurisprudence.  Rather than a harm-balancing judgment typical of three-tier scrutiny, the Court’s civil commitment cases are best understood as forbidden purpose cases, a construct that is familiar in many areas of the Court’s constitutional analysis.  But the Court’s civil commitment cases tie the search for punitive purpose to another genre of constitutional analysis, the application of the substantive boundaries on governmental power most commonly associated with the specific grants of federal power.  In contrast to the normal conception of state power as plenary, limited only by the specific constraints of the bill or rights and the amorphous limits of "substantive due process," the Court has posited a narrowly limited "civil commitment" power. The search for the forbidden purpose maps directly onto the inquiry into the limits of this discrete and special state power.  Finally, the article argues that the forbidden purpose/discrete power analysis provides clarity on another vexing issue, the facial/as-applied distinction.

July 23, 2018 in Criminal Sentences Alternatives, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (2)

Sunday, July 22, 2018

"Can a criminal be sentenced to run a 'help desk'?"

The question in the title of this post is the first line of this New York Times article about a high-profile upcoming federal (re)sentencing.  The piece is headlined "What Sentence Should Sheldon Silver Get? His Lawyers Get Creative," and here are excerpts:

Sheldon Silver, the former powerful speaker of the New York State Assembly who was convicted of public corruption charges in May, hopes [he can be sentenced to help-desk duty].

Mr. Silver, 74, is to be sentenced on July 27 in Manhattan, and federal prosecutors asked the judge on Friday to impose a sentence “substantially in excess” of 10 years. But Mr. Silver’s lawyers had a more creative proposal for how he could pay his debt to society.

After a “meaningful custodial sentence,” they suggested, he should be ordered to perform “rigorous” community service, like running a special help desk. In that role, they said, he would be helping New Yorkers “navigate their way through the state bureaucracy to answer their questions, and maximize their chances of receiving benefits to which they may be entitled.” He would be expressing his remorse, they said, and using “his unique skills to assist his fellow New Yorkers.”...

Evidence at the trial showed Mr. Silver obtained nearly $4 million in illicit payments in exchange for taking actions that helped a prominent cancer researcher at Columbia University and two real estate developers.... Mr. Silver, a Democrat, was originally convicted in 2015 and sentenced to 12 years by the judge, Valerie E. Caproni of Federal District Court. After his conviction was overturned on appeal, he was retried this year and found guilty.

“Mr. Silver is a broken man,” his lawyers wrote. “He has been humiliated and disgraced. Most of his assets are gone, either to forfeiture or fine.” But he “is also an intelligent man, with virtually unparalleled knowledge of New York State government,” they noted. Their proposal would allow the judge to exercise discretion “in a way that punishes Mr. Silver, but takes advantage of his unique talents and still affords the possibility of his living the end of his life in freedom.”

To provide a direct answer to the question in the title of this post, I would look to 18 U.S.C. § 3563(b)(12) which states that the court may provide that the defendant work "in community service as directed by the court” as a condition of supervised release. In other words, I think a federal defendant can be sentenced by a federal judge to run a help desk as a form of community service during a period of supervised release. Whether a federal judge will be inclined to do so for Sheldon Silver is another question.

Prior related posts prior to Sheldon Silver's initial sentencing:

July 22, 2018 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (3)

Monday, July 16, 2018

Big Massachusetts Supreme Judicial Court upholds "drug free" condition of probation

The Massachusetts Supreme Judicial Court handed down this morning a decision in the closely-watched case of Massachusetts v. Eldred, No. SJC--12279 (Mass. July 16, 2018) (available here). The opinion starts this way:

Following a probation violation hearing, a judge in the District Court found that the defendant, Julie A. Eldred, had tested positive for fentanyl, in violation of a condition of her probation requiring her to abstain from using illegal drugs. The judge ordered that the conditions of her probation be modified to require her to submit to inpatient treatment for drug addiction. The defendant appeals from that finding and disposition.  The judge also reported a question drafted by the defendant concerning whether the imposition of a "drug free" condition of probation, such as appeared in the original terms of defendant's probation, is permissible for an individual who is addicted to drugs and whether that person can be subject to probation violation proceedings for subsequently testing positive for illegal drugs.

We conclude that, in appropriate circumstances, a judge may order a defendant who is addicted to drugs to remain drug free as a condition of probation, and that a defendant may be found to be in violation of his or her probation by subsequently testing positive for an illegal drug. Accordingly, we affirm the finding that the defendant violated her probation and the order requiring her to submit to inpatient treatment for her addiction.

July 16, 2018 in Criminal Sentences Alternatives, Drug Offense Sentencing, Offender Characteristics, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (2)

Saturday, July 07, 2018

Judge Jack Weinstein laments overuse of federal supervised release (and especially its revocation for marijuana use)

As regular readers know, US District Judge Jack Weinstein regularly produces interesting and important sentencing opinions, and his latest effort focuses on supervised release as well as marijuana reform. This New York Times article about this opinion, headlined "Brooklyn Judge Vows Not to Send People Back to Prison for Smoking Marijuana," starts with this accounting of the effort:

Noting that marijuana has become increasingly accepted by society, a federal judge in Brooklyn made an unusual promise on Thursday: He pledged he would no longer reimprison people simply for smoking pot.

In a written opinion that was part legal document, part mea culpa, the judge, Jack B. Weinstein, 96, acknowledged that for too long, he had been sending people sentenced to supervised release back into custody for smoking pot even though the drug has been legalized by many states and some cities, like New York, have recently decided not to arrest those who use it. Under supervised release, inmates are freed after finishing their prison time, but are monitored by probation officers.

“Like many federal trial judges, I have been terminating supervision for ‘violations’ by individuals with long-term marijuana habits who are otherwise rehabilitated,” Judge Weinstein wrote. “No useful purpose is served through the continuation of supervised release for many defendants whose only illegal conduct is following the now largely socially acceptable habit of marijuana use.”

The full 42-page opinion in US v. Trotter, No. 15-CR-382 (E.D.N.Y. July 5, 2018) (available here), is an interesting read and important for lot of reasons beyond the connections of criminal justice supervision and marijuana reform.  This first part of the introduction provides a taste for all the full opinion covers:

This case raises serious issues about sentencing generally, and supervised release for marijuana users specifically: Are we imposing longer terms than are needed for effective supervised release?  Should we stop punishing supervisees for a marijuana addiction or habit?

After revisiting and reconsidering these issues, I conclude: (1) I, like other trial judges, have in many cases imposed longer periods of supervised release than needed, and I, like other trial judges, have failed to terminate supervised release early in many cases where continuing supervision presents such a burden as to reduce the probability of rehabilitation; and (2) I, like other trial judges, have provided unnecessary conditions of supervised release and unjustifiably punished supervisees for their marijuana addiction, even though marijuana is widely used in the community and is an almost unbreakable addiction or habit for some.  As a result of these errors in our sentencing practice, money and the time of our probation officers are wasted, and supervisees are unnecessarily burdened.

In summary, in this and my future cases I will: (1) impose shorter terms of supervised release as needed; (2) give greater consideration to the appropriateness of conditions; (3) provide for earlier termination where indicated; and (4) avoid violations of supervised release and punishment by incarceration merely for habitual marijuana use.

July 7, 2018 in Criminal Sentences Alternatives, Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Tuesday, July 03, 2018

"Study after study shows ex-prisoners would be better off without intense supervision"

The title of this post is the title of this notable new Brookings commentary authored by Jennifer Doleac.  I recommend the piece in full, and here is how it starts and concludes:

Two-thirds of those released from prison are re-arrested within three years.  This incarceration cycle hurts families and communities — and also costs a lot of money. Governments and nonprofits have tried many programs to reduce recidivism, but most are not successful.  In a recent review of the literature on prisoner reentry, I summarized the best evidence on how to improve the lives of the formerly incarcerated.  One of the most striking findings was that reducing the intensity of community supervision for those on probation or parole is a highly cost-effective strategy.  Several studies of excellent quality and using a variety of interventions and methods all found that we could maintain public safety and possibly even improve it with less supervision — that is, fewer rules about how individuals must spend their time and less enforcement of those rules.  Less supervision is less expensive, so we could achieve the same or better outcomes for less money.

For instance, Hennigan, et al. (2010), measured the effects of intensive supervision using a randomized controlled trial (RCT) in Los Angeles.  Juveniles sentenced to probation were randomly assigned to intensive supervision—in the form of a community-based after-school program—or standard probation.  Five years later, there were no significant differences in outcomes between the treatment and control groups, with one exception: Low-risk boys (ages 15 or younger) who were randomized to intensive supervision were worse off. Intensive supervision for that group led to more incarceration and a higher likelihood of continued criminal justice involvement in the years ahead.  That is, intensive supervision increased criminal activity by this group, without reducing criminal activity by other groups.

Barnes, et al. (2012) used an RCT to study supervision levels in Philadelphia.  Low-risk probationers were randomized to probation as usual or low-intensity supervision by parole officers with high caseloads (which forced them to pay less attention to each individual case).  Less supervision means probationers may be less likely to get caught for technical violations, such as using drugs or breaking curfew.  But these requirements of probation are a means to an end: what really matters for public safety is the number of new offenses committed.  Eighteen months after randomization, there were no significant differences between the treatment and control groups in the likelihood of being charged for a new offense.  In other words, low-intensity supervision did not result in more recidivism....

These studies show that current efforts to reduce recidivism through intensive supervision are not working.  Why is intensive supervision so ineffective?  Requiring lots of meetings, drug tests, and so on can complicate a client’s life, making it more difficult to get to work or school or care for family members (meetings are often scheduled at inconvenient times and may be far away).  A heavy tether to the criminal justice system can also make it difficult for individuals to move on, psychologically.  Knowing that society still considers you a criminal may make it harder to move past that phase of your life.  These difficulties may negate the valuable support that probation and parole officers can provide by connecting clients to services and stepping in to help at the first sign of trouble.

It is unclear what the optimal level of supervision is for those on parole or probation, but these studies demonstrate that current supervision levels are too high.  We could reduce the requirements of community supervision — for low-risk and high-risk offenders alike — and spend those taxpayer dollars on more valuable services, such as substance abuse treatment or cognitive behavioral therapy.  This would be a good first step toward breaking the vicious incarceration cycle.

July 3, 2018 in Collateral consequences, Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (1)

Wednesday, June 20, 2018

"Fourth Amendment Constraints on the Technological Monitoring of Convicted Sex Offenders"

The title of this post is the title of this new paper available via SSRN authored by Ben McJunkin and J.J. Prescott.  Here is its abstract:

More than forty U.S. states currently track at least some of their convicted sex offenders using GPS devices.  Many offenders will be monitored for life.  The burdens and expense of living indefinitely under constant technological monitoring have been well documented, but most commentators have assumed that these burdens were of no constitutional moment because states have characterized such surveillance as “civil” in character — and courts have seemed to agree.

In 2015, however, the Supreme Court decided in Grady v. North Carolina that attaching a GPS monitoring device to a person was a Fourth Amendment search, notwithstanding the ostensibly civil character of the surveillance.  Grady left open the question whether the search — and the state’s technological monitoring program more generally — was constitutionally reasonable.  This Essay considers the doctrine and theory of Fourth Amendment reasonableness as it applies to both current and envisioned sex offender monitoring technologies to evaluate whether the Fourth Amendment may serve as an effective check on post-release monitoring regimes.

June 20, 2018 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sex Offender Sentencing, Technocorrections | Permalink | Comments (3)

Tuesday, June 19, 2018

Georgia Supreme Court rules individual has essentially no procedural rights before being placed on state's child abuse registry

I saw yesterday a notable ruling by the Georgia Supreme Court in Georgia Department of Human Services v. Steiner, No. S18A0281 (Ga. June 18, 2018)(available here).  As I read the case, a 13-year-old's written statement that an older individual (age 52) hugged her and twice "started to hump me a way a dog would" led to his placement on the Georgia child abuse registry.  Upon getting a subsequent notice of his placement on the registry, Steiner challenged the (lack of) procedures on various grounds, and prevailed in lower courts. But on appeal to the Georgia Supreme Court, Steiner loses and the majority opinion gets started this way:

The Georgia Department of Human Services, Division of Family and Children Services (“DFCS”) appeals from the decision of the Lamar County Superior Court finding that Georgia’s central child abuse registry is unconstitutional, both on its face and as applied to appellee Christopher Steiner.  The trial court also found that DFCS failed to prove that Steiner committed an act of child abuse by a preponderance of the evidence as required to maintain Steiner’s listing in the registry.  This Court granted DFCS’s application for discretionary review. 

We hold that Steiner failed to demonstrate a constitutionally protected liberty or property interest sufficient to trigger the due process protections that he claims were violated by operation of the registry, and because the Act was constitutionally applied to Steiner, he lacks standing to bring his facial challenge on that ground.  We further hold that the child abuse registry is not criminal in nature, and that the superior court therefore erred in finding it to be so.  And because an abuse investigator’s determination about whether a report of child abuse is supported by the evidence is not a judicial function, the superior court erred in finding that the statute requiring the investigator to report such cases to DFCS for inclusion in the child abuse registry violates the separation of powers provision of the Georgia Constitution.  Finally, because at least “some evidence” supported the administrative hearing officer’s conclusion that DFCS had proved an act of child abuse as defined for purposes of the child abuse registry, the superior court erred in reversing the administrative law court.  We reverse.

June 19, 2018 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (6)

Wednesday, June 13, 2018

"When Tribal Disenrollment Becomes Cruel and Unusual"

The title of this post is the title of this new article available on SSRN authored by Judith Stinson. Here is the abstract:

In the past two decades, Native American tribes have disenrolled — permanently removed from tribal citizenship — thousands of tribal members, mainly because of lineage concerns or for political reasons.  In these instances, scholars generally decry disenrollment.  But there is a growing trend to disenroll tribal citizens for criminal conduct, and scholars (and even tribal members themselves) assume this is proper.  This paper argues that tribal disenrollment for criminal conduct violates the Indian Civil Rights Act’s prohibition on cruel and unusual punishment.

The Supreme Court held that denationalization as a result of criminal conduct is cruel and unusual punishment in violation of the Eighth Amendment.  Congress applied that same prohibition to Native American tribes in the Indian Civil Rights Act.  And traditionally, tribes, who had the inherent power to impose any sanction necessary, focused on restoring harmony rather than punishing offenders; permanent expulsion was almost never imposed.  Tribes are nations, and tribal membership is a voluntary compact equivalent in all meaningful respects to United States citizenship — hence, tribes cannot disenroll members for criminal behavior.  Yet Congress also severely limited tribes’ ability to punish criminal defendants by capping incarceration at one year, and crime in Indian country is a significant problem.  To allow tribes to battle crime and yet protect against cruel and unusual punishment, Congress should remove the limit on incarceration and individual tribal members can decide whether they are willing to submit to their tribe’s inherent power — and greater sentences — or voluntarily renounce their tribal citizenship.

June 13, 2018 in Collateral consequences, Criminal Sentences Alternatives, Sentences Reconsidered | Permalink | Comments (3)

Friday, June 08, 2018

ACLU brings novel lawsuit against Kansas DA for failing to disclose diversion options to defendants

Late last year, the ACLU of Kansas last year produced this report titled "Choosing Incarceration" lamenting that prosecutors in Kansas often sought incarceration over available diversion programs.  Now, as details in this press release, the ACLU has taken its complaints to court:

The American Civil Liberties Union and the ACLU of Kansas filed a lawsuit today on behalf of a faith-based organization against a county prosecutor for failing to implement diversion programs in accordance with Kansas law and for pursuing the expensive and disproportionately harsh prosecution of individuals posing minimal community risks.

The lawsuit was filed today in the Kansas Supreme Court against Montgomery County Attorney Larry Markle. At a time when Kansas prisons have swelled beyond capacity, costing taxpayers millions of dollars, Markle and Montgomery County drastically underutilize diversion compared to the national and state average, despite the fact that diversion programs that allow defendants to seek incarceration alternatives such as treatment, community service, or restitution have proven financial and social benefits.

“These programs are essential to establish a rehabilitative rather than punitive criminal justice system,” said Somil Trivedi, staff attorney with the ACLU’s Trone Center for Justice. “Ignoring the legal requirements to provide notice to defendants of the existence of these programs, and to not discuss these options with those who qualify, is against the law. We’re taking action in Kansas to send a message to prosecutors that it’s their obligation to uphold the law and serve their community, not just rack up as many convictions as they can.”

Markle’s failure to follow Kansas diversion law negatively impacted the work the Kansas Crossroads Foundation, a faith-based organization that provides drug rehabilitation and economic development services to Wilson and Montgomery County defendants convicted of drug offenses. Since many KCF clients were likely not given the opportunity to apply for diversion, KCF has had to divert critical resources away from rehabilitation programs to conduct jail counseling sessions and help defendants comply with the terms of their probation or parole....

Following efforts in New Orleans and Orange County, California, today’s lawsuit is the third the ACLU has filed against active district attorneys since October as a part of nationwide efforts to reform prosecutorial practices nationwide.

The complain in his matter is available at this link.  

June 8, 2018 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Thursday, June 07, 2018

"Treatment of sex offenders depends on whether they've challenged rules"

The title of this post is the headline of this lengthy new Detroit Free Press article. I recommend the piece in full, and here is how it gets started and additional excerpts:

Eight months after the U.S. Supreme Court effectively upheld a decision saying parts of Michigan's sex offender registry law — one of the toughest in the nation — were unconstitutional, thousands of former sex offenders who thought they'd be off the registry by now, or facing less severe restrictions, have seen no changes.

The law remains in place, unchanged, with the state defending it in more than three dozen lawsuits — many of which it has already lost.  The controversy involves a ruling two years ago by the U.S. 6th Circuit Court of Appeals in Cincinnati that said provisions enacted in 2006 and 2011 and applied to offenders convicted before then violates constitutional protections against increasing punishments after-the-fact.  Last October, the U.S. Supreme Court declined to hear the state's challenge to that ruling, effectively upholding it.

The rules prohibit offenders — many of whom have gone years if not decades without committing any crimes — from legally living, working or even standing within 1,000 feet of a school, a regulation that many say makes it hard for them to work, or to pick up or see their kids at school, and has forced some to give up jobs and homes.  The rules also require offenders to immediately register email addresses or vehicles and report to police as often as four times a year, in some cases, for the rest of their lives.

Because the appeals court decision came in civil cases and not class action lawsuits, the state has maintained those rulings apply only to the specific plaintiffs who brought them. And with the state Legislature failing to change the law, registrants find themselves in a legal morass, with the requirements they must comply with almost wholly contingent on whether the offender has successfully gone to court.  Michigan now has the fourth-largest sex offender registry in the country, with 43,623 registrants on its database, more than the state of New York, which has 40,623.

The disparities can be wide.  One man convicted 17 years ago of eight counts of sexual contact with several girls under the age of 13 sued prosecutors, arguing that the rules keeping him on the registry — with his photo, name, address listed publicly — for life were unconstitutional.  Last November, after the Supreme Court declined to take up the 6th Circuit decision, the state Court of Appeals agreed, saying those rules no longer apply to him.

But it's different for another man convicted of touching two girls under the age of 16 while drunk 24 years ago in another state but who has had a clean record since.  Last September, as a "Tier 2" offender, he was expecting to come off the registry after nearly a quarter century. But he was abruptly told by police that his case had been reviewed and that since one of those girls was under 13, he’d stay on the list — and be listed among the worst offenders on "Tier 3" — for life.  To this day, under Michigan law, he's subject to all those restrictions from which the first man has been freed....

In Michigan, any legal certainty about what is required of thousands of sex offenders is almost nil.

While some local prosecutors — like those in Wayne and Oakland counties — no longer enforce cases involving retroactive applications of the law, it's far from certain that others are following suit. Macomb County prosecutors, for instance, declined to answer the Free Press' questions about whether they are still enforcing those restrictions. And Michigan State Police — which oversees the registry — says, legally, all restrictions remain in place.

The state’s top law enforcement official, Attorney General Bill Schuette — who is running for governor — won’t say whether the 6th Circuit Court decision should be applied statewide, his office refusing comment.

Prior related post:

June 7, 2018 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sex Offender Sentencing, Who Sentences | Permalink | Comments (4)

Friday, June 01, 2018

"Challenging the Punitiveness of 'New-Generation' SORN Laws"

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

Sex offender registration and notification (SORN) laws have been in effect nationwide since the 1990s, and publicly available registries today contain information on hundreds of thousands of individuals.  To date, most courts, including the Supreme Court in 2003, have concluded that the laws are regulatory, not punitive, in nature, allowing them to be applied retroactively consistent with the Ex Post Facto Clause.  Recently, however, several state supreme courts, as well as the Sixth Circuit Court of Appeals, addressing challenges lodged against new-generation SORN laws of a considerably more onerous and expansive character, have granted relief, concluding that the laws are punitive in effect. 

This symposium contribution examines these decisions, which are distinct not only for their results, but also for the courts’ decidedly more critical scrutiny of the justifications, purposes, and efficacy of SORN laws.  The implications of the latter development in particular could well lay the groundwork for a broader challenge against the laws, including one sounding in substantive due process, which unlike ex post facto-based litigation would affect the viability of SORN vis-à-vis current and future potential registrants.

June 1, 2018 in Collateral consequences, Criminal Sentences Alternatives, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (3)

Tuesday, May 29, 2018

SCOTUS limits reach of Mandatory Victims Restitution Act in Lagos ... and talks about Fourth Amendment

The US Supreme Court handed down two opinions and a dismissal this morning, all from the criminal side of its docket.  The one sentencing decision came in Lagos v. United States, No. 16-1519 (S. Ct. May 29, 2018) (available here).  Here is hope the unanimous opinion by Justice Breyer gets started:

The Mandatory Victims Restitution Act of 1996 requires defendants convicted of a listed range of offenses to

“reimburse the victim for lost income and necessary child care, transportation, and other expenses incurred during participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense.” 18 U.S.C. §3663A(b)(4) (emphasis added).

We must decide whether the words “investigation” and “proceedings” are limited to government investigations and criminal proceedings, or whether they include private investigations and civil proceedings.  In our view, they are limited to government investigations and criminal proceedings.

Got that? The short Lagos opinion goes on to provide a mini-primer on federal restitution statutes, but both the issue and the opinion here ensures this ruling will not be too long remembered.

Also not to be too long remembered is a DIG (dismissed as improvidently granted) from SCOTUS today in City of Hays, Kansas v. VogtNo. 16-1495.  The only SCOTUS decision today likely to get any real attention is a Fourth Amendment ruling in Collins v. Virginia, No. 16-1027 (S. Ct. May 29, 2018) (available here).  Justice Sotomayor starts the opinion for the Court off succintly: "This case presents the question whether the automobile exception to the Fourth Amendment permits a police officer, uninvited and without a warrant, to enter the curtilage of a home in order to search a vehicle parked therein. It does not."  Justice Alito dissents alone, starting this way: "The Fourth Amendment prohibits 'unreasonable' searches. What the police did in this case was entirely reasonable. The Court’s decision is not."

The merits aside, the Collins decision will really garner attention because of a lengthy concurrence by Justice Thomas.  Writing alone, he urges the Court to reconsider the reach of the exclusionary rule.  Here is how his opinion starts and ends:

I join the Court’s opinion because it correctly resolves the Fourth Amendment question in this case.  Notably, the only reason that Collins asked us to review this question is because, if he can prove a violation of the Fourth Amendment, our precedents require the Virginia courts to apply the exclusionary rule and potentially suppress the incriminating evidence against him. I write separately because I have serious doubts about this Court’s authority to impose that rule on the States.  The assumption that state courts must apply the federal exclusionary rule is legally dubious, and many jurists have complained that it encourages “distort[ions]” in substantive Fourth Amendment law, Rakas v. Illinois, 439 U.S. 128, 157 (1978) (White, J., dissenting)....

In sum, I am skeptical of this Court’s authority to impose the exclusionary rule on the States.  We have not yet revisited that question in light of our modern precedents, which reject Mapp’s essential premise that the exclusionary rule is required by the Constitution.  We should do so.

May 29, 2018 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentences Reconsidered, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (3)

Saturday, May 26, 2018

"Time to rethink probation and parole"

The title of this post is the headline of this recent commentary authored by Larry Krasner and Miriam Krinsky. (Kranser, as many readers surely know, is the District Attorney of Philadelphia and Krinsky is a former federal prosecutor and Executive Director of Fair and Just Prosecution.) Here are excerpts:

As longtime leaders in criminal justice, we have seen a deeply unsettling trend in the way probation and parole — sometimes called “community corrections” — have become overused and too often serve as a gateway to reincarceration based on the smallest of missteps.  That’s why we recently joined with 45 fellow prosecutors nationwide who believe that community corrections needs to be downsized and made rehabilitative, not only because that will make us safer, but because it will fortify trust in our justice system for millions of Americans.

When community corrections was founded in the 1800s, it was viewed as a highly individualized way to curb the purely punitive sentence of imprisonment with an alternative to incarceration (probation) or a release valve for those who did well during incarceration (parole).  But since 1980, it has grown far beyond what its founders ever could have imagined. The number of people on probation and parole has increased four-fold, peaking at 5 million individuals — or one out of every 53 adults — before declining slightly of late. That is twice as many people as are incarcerated in America, and more people than live in half of all U.S. states.

Often thought of as a grant of mercy or slap on the wrist, parole and probation are a deprivation of liberty and can serve as an unnecessary trip wire back into incarceration. Four out of 10 people entering our prisons and jails were on parole or probation at the time of their reincarceration.  Often that stay behind bars is not for a new arrest, but simply for violating a technical condition of release like missing appointments or drug use....

Pennsylvania has the highest incarceration rate in the Northeast, and the third-highest community corrections rate in the country. The number and rate of people supervised by parole in Pennsylvania is the highest in the nation — three times the national average.  An astonishing one out of 22 Philadelphians is being supervised by probation or parole....

Several states have tried to reduce both the footprint and harmful outcomes of these practices.  When Arizona gave people “earned discharge” time off their probation terms, the state not only reduced probation violations by 29 percent, but achieved a 21 percent decline in arrests of people on probation, realizing $392 million in averted costs.  When Louisiana capped the amount of time someone could receive for technical violations at between 15 and 45 days, there was a 22 percent decline in returns to incarceration for new arrests, saving over 2,000 beds and $17 million.

Pennsylvania State Sen. Anthony Williams and New York Assembly Member Walter Mosely have filed legislation in their respective states to address this issue.  These proposed reforms would shorten probation and parole terms, grant people 30 days of earned discharge time for every 30 days of success under supervision, and cap the amount of time someone could receive for a technical violation.

These are the kinds of sensible policy changes needed to restore faith in our justice system, reduce the overly expansive scope of community corrections, focus assistance on those people most in need, reward people for good performance, and overall, increase public safety and rehabilitation.  We hope that prosecutors around the nation will rally around the need for reform and use their influence to help chart a more positive pathway for all members of our community.

May 26, 2018 in Criminal Sentences Alternatives, Reentry and community supervision, Who Sentences | Permalink | Comments (4)

Monday, May 21, 2018

"Sex offender registry: More harm than good?"

The title of this post is the headline of this lengthy report appearing in The Connecticut Mirror. The piece is focused mostly on the history of, and debate over, the sex offender registry in The Constitution State, but much of the discussion has a universal quality to it.  Here is how it gets started:

In the 1990s, in response to a number of horrific and highly publicized crimes against children, states and the federal government created stringent penalties for sex offenders, notably registries where offenders’ names and addresses are available to the public.  But now critics across the country are demanding review and revision of these policies, saying they are based on false assumptions, are a waste of money and do more harm than good.

The registries and related policies “are absolutely and fundamentally flawed. They do nothing to support prevention, are not a deterrent and do nothing for people who have survived sexual violence,” said Prof. Alissa Ackerman of California State University Fullerton, a criminologist and national expert on the treatment of sex offenders.

In 2015 the Connecticut Sentencing Commission, at the behest of the General Assembly, began a lengthy examination of Connecticut’s “system of assessment, management, treatment, and sentencing of sex offenders.”  After a two-year study, the commission recommended changing the state’s public registry from one based on the offense — commit most sex-related crimes and you go on the registry — to one based on the risk an offender poses to the community, as determined by a new, eight-member Sex Offender Registration Board.  Individuals found to be low-risk — and some adjudged moderate-risk — would be on a registry only available to law enforcement personnel.

The proposal was crystalized into a bill introduced during the immediate past session of the General Assembly, though it failed to make it out of the Judiciary Committee.

State Sen. Paul Doyle, co-chair of the committee, said the complexity and emotional nature of the issue made it more appropriate for the longer session next year. “We never got to the merits. Leadership was not prepared to deal with it in a short session.” He said he personally would have had to do more research before deciding how to vote.

In a related matter, the nonprofit Connecticut for One Standard of Justice, which advocates for the civil rights of sex offenders, filed a federal lawsuit on April 4 seeking to overturn a Windsor Locks ordinance which bars persons on the sex offender registry from most public places in town. The town’s “child safety zones” include a “park, school, library, playground, recreation center, bathing beach, swimming pool or wading pool, gymnasium, sports field, or sports facility” either owned or leased by the town. The suit claims banning a group of people from these facilities is unconstitutional....

The registry and laws such as child protection zones are based on a set of assumptions that research indicates are highly questionable or outright false. The Sentencing Commission’s 204-page report calls them “myths.”  They include:

  • Nearly all sex offenders reoffend.
  • Treatment does not work.
  • The concept of “stranger danger” — that most sexual assaults are the work of people unknown to the victims.

“Research does not support these myths, but there is research to suggest that such policies may ultimately be counterproductive,” the commission’s report says.

May 21, 2018 in Collateral consequences, Criminal Sentences Alternatives, Sex Offender Sentencing | Permalink | Comments (6)

Thursday, May 17, 2018

"How should we deal with wrongdoing? And you can’t say ‘prison.’"

The title of this post is the headline of this notable new Washington Post commentary authored by Danielle Allen. I recommend the full piece, and here are excerpts:

How should a kid like Michael [involved in multiple armed robberies at age 15] be sentenced? How, more generally, should we respond to wrongdoing? Here’s my challenge to you: In my thought experiment, you can’t answer “prison.”

Given that constraint, what punishment should Michael receive? Here are our goals: We want to respond to wrongdoing so as to ensure that victims are made whole, that society is made whole, and that the wrongdoer, too, becomes whole and, having paid recompense, is prepared to contribute productively to society.

Does your mind draw a blank? If so, you are like most of us, accustomed to a system that thinks incarceration is the only way to respond to wrongdoing.

In the United States, 70 percent of our criminal sanctions consist of incarceration.  That’s why it’s all we can think of. But a world that operates without an extensive reliance on prison is not a utopia; it is only a plane ride away.  In Germany, incarceration is used for 6 percent of sanctions; in the Netherlands, it’s 10 percent, according to a 2013 Vera Institute report comparing our criminal-justice system with theirs.

Germany and the Netherlands rely predominantly on fines, linked to the offender’s ability to pay, and “transactions” or community sanctions — for instance, work orders that benefit the community, or training orders, or a combination. Halfway houses connect residential oversight with supervised work opportunities, which can be connected to paying restitution to victims and the community.  The penal systems are built around the principles of rehabilitation, re-socialization and “association.”  This is the idea that a criminal sanction is more likely to result in a wrongdoer’s successful reentry to society if it works to strengthen, not damage, the wrongdoer’s positive connections to family and community....

Currently, two criminal-justice-reform strategies are moving through Congress. Last fall, Sens. Charles E. Grassley (R-Iowa) and Richard J. Durbin (D-Ill.) introduced the Sentencing Reform and Corrections Act.  The act tackles the problem of mandatory minimums and seeks to “improve fairness in sentencing of low-level, nonviolent offenders,” so as to permit law enforcement to focus on “violent offenders, major drug traffickers and criminal masterminds.” This month, Sens. John Cornyn (R-Tex.) and Sheldon Whitehouse (D-R.I.), alongside Reps. Douglas A. Collins (R-Ga.) and Hakeem Jeffries (D-N.Y.), introduced a prison reform bill called the First Step Act.  This bill would offer individualized recidivism-reduction plans to all people incarcerated in federal prisons, and increase access to vocational training and educational support, as well as substance-abuse and mental-health resources. The bill would also introduce halfway houses or home confinement for the final phase of incarceration.

These bills have wrongly been cast as competitors.  If we are to undo mass incarceration, we have to envision viable alternatives to incarceration.  By making halfway houses and rehabilitative strategies central to our sanctioning system, the First Step Act would help the American public see new possibilities.  It could thereby lay the foundation for true transformation of sentencing.

Policymakers too often forget that three-quarters of their work should be winning the hearts and minds of the public.  To win sustainable, unwavering, widespread support for meaningful sentencing reform, we have to show that strategies of rehabilitation and restorative justice work.  Lawmakers should embrace the First Step Act as a necessary part of painting that new picture.  The Sentencing Reform and Corrections Act would benefit from our collective ability to imagine alternatives to incarceration.  

May 17, 2018 in Criminal Sentences Alternatives, Purposes of Punishment and Sentencing | Permalink | Comments (15)

Wednesday, May 16, 2018

Encouraging findings from big study of 16 prosecutor-led diversion programs in 11 jurisdictions

I saw today a big report from a big National Institute of Justice study on the topic of diversion programs.  This big report has this full title: "NIJ’s Multisite Evaluation of Prosecutor-Led Diversion Programs Strategies, Impacts, and Cost-Effectiveness."  And here is part of its executive summary:

In recent years, a growing number of prosecutors have established pretrial diversion programs, either pre-filing—before charges are filed with the court—or post-filing—after the court process begins but before a disposition. Participating defendants must complete assigned treatment, services, or other diversion requirements. If they do, the charges are typically dismissed. With funding from the National Institute of Justice, the current study examined 16 prosecutor-led diversion programs in 11 jurisdictions across the country and conducted impact evaluations of five programs and cost evaluations of four programs....

Case Outcomes, Recidivism, and Cost

  • Case Outcomes: All five programs participating in impact evaluations (two in Cook County, two in Milwaukee, and one in Chittenden County, VT) reduced the likelihood of conviction — often by a sizable magnitude.  All five programs also reduced the likelihood of a jail sentence (significant in four and approaching significance in the fifth program).

  • Re-Arrest: Four of five programs reduced the likelihood of re-arrest at two years from program enrollment (with at least one statistically significant finding for three programs and at least one finding approaching significance in the fourth).  The fifth site did not change re-arrest outcomes.

  • Cost: All four programs whose investment costs were examined (two in Cook County and one each in Chittenden and San Francisco) produced sizable cost and resource savings.  Not surprisingly, savings were greatest in the two pre-filing programs examined, which do not entail any court processing for program completers.  All three programs whose output costs were examined (i.e., omitting the San Francisco site) also produced output savings, mainly stemming from less use of probation and jail sentences.

Conclusions

There were a number of important study limitations, including a focus on 16 high-volume diversion programs mainly located in large jurisdictions, a smaller number of study sites for the impact and cost evaluations, and limitations in the scope and quality of quantitative data available in some of the impact sites.  Understanding these limitations, we generally found that today’s prosecutor-led diversion programs pursue a wide range of goals, not limited to rehabilitation and recidivism reduction.  We also found that these programs serve a mix of target populations — including felonies as well as misdemeanors and, in virtually all programs we examined, including defendants with a prior criminal record.  Although it bears noting that we evaluated program impacts in a limited number of sites, meaning that our findings may not be generalizable to other sites and programs that we did not study, our research yielded positive results. Across five programs in three sites, diversion participants benefited from a reduced likelihood of conviction and incarceration; and in four of the five programs, pretrial diversion participation led to reduced re-arrest rates.  In addition, in all four programs where a cost evaluation was conducted, diversion cases involved a lesser resource investment than similar comparison cases.

May 16, 2018 in Criminal Sentences Alternatives, Data on sentencing, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Saturday, May 05, 2018

Scrutinizing sex offender civil commitment schemes

Investigative reporter Barbara Koeppel has this extensive article in The Washington Spectator under the full headline "Sex Crimes and Criminal Justice: Formerly incarcerated sex offenders say civil commitment programs deny proper rehabilitation."  I recommend the piece in full, and here are excerpts from the start and end of the article:

Since the 1990s, 20 states and the District of Columbia have passed laws that direct the attorneys general in these jurisdictions to appoint professionals to evaluate whether sex offenders who have served their time have a mental abnormality or illness that would make them likely to re-offend.  If the decision is yes, the men are re-incarcerated—not for past crimes but for ones they might yet commit — in prisonlike facilities with barbed wire, cells, guards, and watch towers. While institutionalized, they receive therapy that, theoretically, will help them control their sexual impulses.

The practice is known as civil commitment.... Supporters of the process argue it protects the public.  Critics, however, such as Dr. Richard Wollert, a psychologist at Simon Fraser University in British Columbia, disagree. He says the facts simply don’t support it: “I’ve never seen data that show the 20 states with civil commitment laws have lower rates of sex offenses or re-offenses than the 30 states that don’t.”  Similarly, Dr. Fred Berlin, a psychologist who runs sex offender outpatient programs at Johns Hopkins Hospital, says, “They’re really a ruse to not put the men back in society.” The sex offenses range from obscene phone calls, lewd behavior in public, and sex with underage partners, all the way up to rape and murder.

Organizations and professionals familiar with the abuses of civil commitment are its harshest critics.  The American Psychiatric Association told its members to “vigorously oppose” it. Two judges, from Minnesota and Missouri, found the laws “punitive and unconstitutional.”  Tapatha Strickler, a clinical psychologist who worked at the civil commitment facility in Larned, Kansas, calls it “an abomination.”  But the practice persists at huge cost to individuals and taxpayers....

The men I interviewed frankly admitted to their offenses, but they asked to be treated as others who commit crimes and not be re-incarcerated after they serve their prison sentences.  Also, since most state and federal prisons run mental health therapy programs, the men said they’d already participated in them throughout their original sentences — which could be 20 or 25 years — yet were made to start from scratch in the civil commitment facilities.

Today, about 5,400 men are held in civil commitment. [Lawyer Donald] Anderson told me, “It’s hard to wrap my head around it.  I sympathize greatly with the men’s victims and their families because I have two daughters and I understand people’s fears.  But I’ve dealt with these guys for years and I’m very fond of some of them.  Their look of being utterly beaten, knowing they’ll be here until they die, is very sad.  The program is inhumane.”

May 5, 2018 in Criminal Sentences Alternatives, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sex Offender Sentencing | Permalink | Comments (16)

Monday, April 30, 2018

New York Court of Appeals upholds most serious sex offender registration despite defendant's acquittal on most serious charges

Over at Reason, Jacob Sullum has this effective new review of a notable example of "acquitted conduct" being used to justify a severe collateral consequence.  The posting's full headline provides the basic story: "A Jury Rejected the Charges, but He Still Has to Register As a Sex Offender for Life: New York's highest court says accusations can be considered for registration purposes even when the defendant was acquitted." Here are some of the particulars:

Quinn Britton's 13-year-old niece, identified in court documents as A.B., accused him of raping her during a Thanksgiving Day visit to her grandmother's home in Brooklyn, where her uncle lived, when she was 11. Britton denied any inappropriate behavior, and his mother said A.B. had spent the whole evening watching TV in the living room with her.... The jurors struggled to make sense of these conflicting accounts.  Since there was no physical evidence, the case came down to a question of whether to believe A.B. or Britton. During three days of deliberations, the jurors sent the judge three notes indicating that they were deadlocked. Each time he told them to keep deliberating.

Finally the jurors emerged with a verdict that seemed to split the difference between those inclined to believe Britton and those inclined to believe A.B.  They found Britton guilty of second-degree sexual abuse, a misdemeanor, based on the allegation that he kissed A.B.'s breasts, but not guilty of three felonies: first-degree rape, based on the allegation of penetrative sex, and two counts of a first-degree sexual act, based on allegations that he performed oral sex on the girl and forced her to perform oral sex on him.

During a post-trial hearing, the judge nevertheless assumed that Britton had committed the felonies and therefore assigned him to risk level two under New York's Sex Offender Registration Act (SORA), which triggers lifetime registration. Had the judge considered just the crime of which Britton was convicted, he would have been assigned to risk level one, which requires registration for 10 years.

In a 6-to-1 ruling last week, the New York Court of Appeals upheld Britton's classification, noting that it was supposed to be based on "clear and convincing evidence," a less demanding standard than the proof beyond a reasonable doubt required for a criminal conviction.  It is possible, in other words, for an alleged crime to figure in a defendant's risk level even when there is not enough evidence for a guilty verdict.

Writing in dissent, Judge Jenny Rivera charges her colleagues with improperly applying the "clear and convincing evidence" standard, which requires "a high degree of probability" that an allegation is true. A.B.'s testimony should not be treated as reliable under SORA, Rivera argues, because the jury did not find it credible.

April 30, 2018 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (5)

Wednesday, April 25, 2018

New Jersey Supreme Court finds unconstitutional requiring juveniles to be subject to lifetime sex-offender registration

The Supreme Court of New Jersey yesterday handed down a lengthy unanimous opinion in Interest of C.K., No. A-15-16 (N.J. April 24, 2018) (available here) declaring that the state's sex-offender registry law is unconstitutional as applied to some juvenile offenders. Here is how the opinion begins:

Juveniles adjudicated delinquent of certain sex offenses are barred for life from seeking relief from the registration and community notification provisions of Megan’s Law. N.J.S.A. 2C:7-1 to -11, -19; N.J.S.A. 2C:7-2(g).  That categorical lifetime bar cannot be lifted, even when the juvenile becomes an adult and poses no public safety risk, is fully rehabilitated, and is a fully productive member of society.  Defendant C.K. was adjudicated delinquent for sex offenses committed more than two decades ago and now challenges the constitutionality of N.J.S.A. 2C:7-2(g)’s permanent lifetime registration and notification requirements as applied to juveniles.

Subsection (f) of N.J.S.A. 2C:7-2 subjects all sex offenders, including juveniles, to presumptive lifetime registration and notification requirements.  Unlike subsection (g), however, subsection (f) allows a registrant to seek relief from those requirements fifteen years after his juvenile adjudication, provided he has been offense-free and is “not likely to pose a threat to the safety of others.”  Subsection (g) imposes an irrebuttable presumption that juveniles, such as defendant, are irredeemable, even when they no longer pose a public safety risk and are fully rehabilitated.

The record in this case reveals what is commonly known about juveniles -- that their emotional, mental, and judgmental capacities are still developing and that their immaturity makes them more susceptible to act impulsively and rashly without consideration of the long-term consequences of their conduct.  See State v. Zuber, 227 N.J. 422 (2017).  The record also supports the conclusion that juveniles adjudicated delinquent of committing sex offenses, such as C.K., who have been offense-free for many years and assessed not likely to reoffend, pose little risk to the public. Indeed, categorical lifetime notification and registration requirements may impede a juvenile’s rehabilitative efforts and stunt his ability to become a healthy and integrated adult member of society.

We conclude that subsection (g)’s lifetime registration and notification requirements as applied to juveniles violate the substantive due process guarantee of Article I, Paragraph 1 of the New Jersey Constitution. Permanently barring juveniles who have committed certain sex offenses from petitioning for relief from the Megan’s Law requirements bears no rational relationship to a legitimate governmental objective.  In the absence of subsection (g), N.J.S.A. 2C:7-2(f) provides the original safeguard incorporated into Megan’s Law: no juvenile adjudicated delinquent will be released from his registration and notification requirements unless a Superior Court judge is persuaded that he has been offense-free and does not likely pose a societal risk after a fifteen-year look-back period.

Defendant may apply for termination from the Megan’s Law requirements fifteen years from the date of his juvenile adjudication, and be relieved of those requirements provided he meets the standards set forth in N.J.S.A. 2C:7-2(f).

April 25, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (2)

Saturday, April 21, 2018

"Techno-Policing"

The title of this post is the title of this interesting new piece authored by I. Bennett Capers now available via SSRN.  Here is the abstract:

In July 2017, the New York Times reported that Three Square Market, a Wisconsin based technology company, was asking its employees to have a microchip injected between their thumb and index finger.  More than half of the employees consented to the implant, which would function as a type of swipe card.  As one employee put it, “In the next five to 10 years, this is going to be something that isn’t scoffed at so much, or is more normal.  So I like to jump on the bandwagon with these kind of things early, just to say that I have it.”

What might the implanting of microchips portend for criminal justice issues?  Might we one day implant chips in convicted felons, or arrestees?  Or if not all arrestees, perhaps those released on bail?  Indeed, at a time when many scholars and legislators are rethinking bail, might the availability of removable chips strengthen the argument against pretrial detention, and against money bail?  And what are the implications for sentencing, especially algorithmic risk-based sentencing?  Or perhaps a closer fit, what are the implications for releasing defendants who have completed their sentences and are eligible for parole? 

At a time when the Court has given its blessing to civil commitment for sex offenders, how might the availability of microchips to monitor the coming and going of individuals — like a wireless fence — change the analysis?  Finally, and perhaps most central to this essay, what are the possibilities when we couple the availability of microchips with access to Big Data?  This short essay, written for the “Big Data and Policing” symposium issue of the Ohio State Journal of Criminal Law, begins a conversation about these and other questions.

April 21, 2018 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Technocorrections | Permalink | Comments (0)

Wednesday, April 18, 2018

SCOTUS examining reach of restitution awards under MVRA in Lagos v. United States 

A somewhat non-traditional sentencing issue is the subject of Supreme Court oral argument this morning.  SCOTUSblog has this argument preview authored by Cortney Lollar which started and ends this way:

Next week, the Supreme Court has another opportunity to consider the scope of criminal restitution. Lagos v. United States raises the question of whether private investigation costs and a victim’s attorney’s fees are considered compensable losses under 18 U.S.C. §3663A, the Mandatory Victim Restitution Act....

In recent years, both Congress and the Supreme Court have taken an increasingly expansive approach toward criminal restitution.  Although the MVRA’s language is undoubtedly distinct from that in other restitution statutes, the court may yet again take this opportunity to interpret the language capaciously, requiring a defendant to reimburse increasingly attenuated costs through restitution.

April 18, 2018 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Tuesday, April 17, 2018

"Will the Supreme Court Rein in Civil Forfeiture?"

The title of this post is the title of this new piece by Matt Ford at The Atlantic, and the question it poses strikes me as particularly timely in light of the notable discussion of civil sanctions by Justice Gorsuch in a concurring opinion this morning in Dimaya.  Here is part of the piece:

The state of Indiana really wants to take Tyson Timbs’s Land Rover, as punishment for dealing just a few hundred dollars’ worth of drugs. He’s now asking the U.S. Supreme Court to let him keep it.

Stories about civil forfeiture injustices are unfortunately common. What sets Timbs’s case apart is his legal argument: that the Eighth Amendment’s ban on excessive fines should shield his property from confiscation at the state level. If the Supreme Court takes up the case and agrees, the justices could impose some much-needed barriers on state and local governments’ voracious appetites for fees, fines, and forfeitures....

Undercover officers solicited from Timbs, buying just under four grams of heroin for less than $400. He was arrested and charged with dealing a controlled substance and conspiracy to commit theft. Timbs pleaded guilty and received a six-year sentence to be served outside prison walls. The state also tried to seize his Land Rover, kicking off the legal battle that ultimately brought him to the Supreme Court.

The trial court refused to authorize the seizure. Indiana law only allowed a $10,000 fine for Timbs’s sentence, and the court concluded that seizing a vehicle worth four times as much as that threshold would be “grossly disproportionate” relative to Timbs’s crime. The Indiana Court of Appeals upheld the decision after their own review of the circumstances. But the Indiana Supreme Court intervened and approved the seizure.

The judges’ unanimous opinion rested on a precedent, or lack thereof: The U.S. Supreme Court has never applied the Eighth Amendment’s Excessive Fines Clause to the states. Other lower courts have chosen to do so without waiting for the top justices, but Indiana’s Supreme Court was uninterested in following that path for Timbs’s benefit. “Indiana is a sovereign state within our federal system, and we elect not to impose federal obligations on the State that the federal government itself has not mandated,” the court declared. Timbs, with his petition in January, is now asking the U.S. Supreme Court to overturn that ruling.... But the Excessive Fines Clause is ripe for consideration in the age of mass incarceration. Impoverished Americans often lack the resources to pay off the fines and fees that can come from even a casual brush with the criminal-justice system. In a cruel twist, the inability to pay these costs can result in jail time itself. Keeping oneself out of trouble is also no guarantee of immunity: A 2014 Washington Post investigation, for example, found that police in multiple states use “highway interdiction” to target thousands of motorists for seizures of cash and property....

Civil-asset forfeiture, though still common, has come under increasing scrutiny across the political spectrum. Attorney General Jeff Sessions’s push last year to revive the practice at the federal level drew harsh rebukes from the ACLU and congressional Republicans alike. Justice Clarence Thomas set off a signal flare of sorts last April suggesting he had doubts about the practice’s constitutionality.

The Indiana case revolves around different legal questions that the ones Thomas was asking last year, but the underlying injustices are the same. Taking up the issue would give the justices a chance to set new limits on excessive fines and forfeitures for cash-hungry counties and cities. For Timbs and thousands of other Americans, that intervention would be a welcome relief.

April 17, 2018 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, April 08, 2018

Interesting Vermont Supreme Court ruling on sex-offender probation conditions

As reported in this local press article, the "Vermont Supreme Court ruled on Friday that the state cannot uniformly declare pornography off-limits to sex offenders." Here is more from the press report:

The decision does allow a sex offender’s probation to include such restrictions, but only if they are deemed specifically appropriate to the individual offender.  The 18-page decision dealt with the probation conditions of a man convicted of sexual assault in 2012 in Chittenden County....

[Yetha L. Lumumba] appealed several conditions of his probation, including one that prohibited him from “purchasing, possessing or using pornography or erotica and going to adult bookstores, sex shops, and topless bars,” according to court records.  The condition was described at the sentencing hearing as a standard one for sex offenders because pornography is seen as contributing to an increased risk of reoffending

“Vermont’s probation statute makes it clear that a court cannot prohibit a probationer from engaging in lawful behavior unless the prohibition relates to the defendant’s rehabilitation or public safety,” the Supreme Court justices wrote.  “Other courts have persuasively concluded that a sentencing court must provide at least some support on the record for imposing a probation condition restricting a defendant’s use of pornography, even when the defendant was convicted of a sex offense.”

The full ruling in Vermont v. Lumumba, 2018 VT 40 (Vt. April 6, 2018), is available at this link and covers lots of ground and cites a lot of law beyond the Green Mountain state. Here is how the unanimous opinion gets started:

Defendant challenges so-called standard and special sex-offender probation conditions that the trial court imposed following his conviction for sexual assault.  Defendant argues that this Court should strike a number of the standard conditions imposed by the trial court in its written order because the conditions were not orally pronounced during the sentencing hearing and were not sufficiently connected to his crime or rehabilitation.  He also argues that the sex-offender condition prohibiting defendant from purchasing, possessing, or using pornography or erotica and from going to “adult bookstores, sex shops, topless bars, etc.” is unrelated to his offense and unconstitutionally vague.  We conclude that defendant failed to properly preserve his objections to the standard conditions and review them for plain error.  Based on the particular provisions and the State’s concessions, we strike some conditions, remand some conditions, and affirm the remaining conditions.  We strike the challenged special condition as unsupported by the record.

April 8, 2018 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (4)

Thursday, April 05, 2018

Supreme Court of Illinois rejects claim that state prohibition on sex offenders in parks is violative of substantive due process

The Supreme Court of Illinois today in Illinois v. Pepitone, 2018 IL 122034 (Ill. April 5, 2018) (available here), overturned a lower court ruling that found a sex offender restriction to violate substantive due process.  Here is how the opinion starts and concludes:

Section 11-9.4-1(b) of the Criminal Code of 2012 provides, “It is unlawful for a sexual predator or a child sex offender to knowingly be present in any public park building or on real property comprising any public park.” 720 ILCS 5/11-9.4-1(b) (West 2016). The sole issue in this case is whether that statute is facially violative of substantive due process. The trial court rejected defendant Marc Pepitone’s due process claim, but the appellate court majority accepted it and reversed his conviction. 2017 IL App (3d) 140627. For the reasons that follow, we reverse the judgment of the appellate court and affirm the defendant’s conviction and sentence....

We conclude that there is a rational relation between protecting the public, particularly children, from sex offenders and prohibiting sex offenders who have been convicted of crimes against minors from being present in public parks across the state.  Avila-Briones and Pollard correctly identified a constitutional nexus.  In Avila-Briones, 2015 IL App (1st) 132221, ¶ 84, the appellate court stated: “[B]y keeping sex offenders who have committed offenses against children away from areas where children are present ***, the legislature could have rationally sought to avoid giving certain offenders the opportunity to reoffend.”  The Avila-Briones court added that whether the statutory scheme covering sex offenders is “a finely tuned response to the threat of sex offender recidivism is not a question for rational-basis review; that is a question for the legislature.” Id.  And in Pollard, 2016 IL App (5th) 130514, ¶ 41, the appellate court concluded, “There is also a direct relationship between the *** presence restrictions of sex offenders and the protection of children.” See Standley v. Town of Woodfin, 661 S.E.2d 728, 731 (N.C. 2008) (upholding a municipal ordinance barring registered sex offenders from entering town parks and stating that the town “has a legitimate government interest in desiring to decrease and eliminate sexual crimes in its parks, and prohibiting those most likely to commit criminal sexual acts — persons previously convicted of such conduct — from entering the town’s parks is a rational method of furthering that goal”).  Because section 11-9.4-1(b) is rationally related to a legitimate government interest, the appellate court erred in holding that the statute is facially unconstitutional under substantive due process. People v. Jackson, 2017 IL App (3d) 150154, which followed the appellate court’s decision in this case, is overruled to the extent that it also found section 11-9.4-1(b) unconstitutional.

April 5, 2018 in Collateral consequences, Criminal Sentences Alternatives, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (13)

Thursday, March 29, 2018

"The Excessive Fines Clause: Challenging the Modern Debtors' Prison"

The title of this post is the title of this new article by Beth Colgan now available via SSRN.  Here is the abstract:

In recent years, the use of economic sanctions-statutory fines, surcharges, administrative fees, and restitution-has exploded in courts across the country.  Economic sanctions are imposed for violations as minor as jaywalking and as serious as homicide, and can range from a few dollars to millions.  When a person is unable to immediately pay off economic sanctions, "poverty penalties" are often imposed, including interest and collections fees and probation.  Failure to pay economic sanctions can result in serious consequences, including prohibitions on obtaining or suspensions of driver's and occupational licenses, restrictions on public benefits, and even incarceration.  Even when poverty penalties are not employed, an inability to pay off criminal debt means that the punishment imposed, even for very minor offenses, can effectively be perpetual. Desperate to avoid these repercussions, people go to extremes to pay. In an alarming number of cases people report having to forego basic necessities like food, housing, hygiene, or medicine, in order to pay what little they can, even if just a few dollars at a time.  These and countless other stories of people trapped in persistent debt are becoming ubiquitous, and have raised the specter that current practices amount to modern day debtors' prisons.

Constitutional challenges to such practices have primarily focused on the narrow window of the post-sentencing collections context, relying on a series of Fourteenth Amendment cases prohibiting the automatic conversion of economic sanctions to incarceration where a debtor has no meaningful ability to pay.  While these challenges can provide an important post hoc protection against the use of incarceration as a penalty for the failure to pay, they do not address the financial instability exacerbated by and ongoing threat of incarceration raised by debt from unmanageable economic sanctions.

A separate, albeit underdeveloped, constitutional provision that may be better suited to addressing the debtors' prison crisis lies in the Eighth Amendment's Excessive Fines Clause, which provides protection at sentencing.  To date, the United States Supreme Court has only determined that criminal and civil forfeitures constitute fines.  This Article examines the key concerns underlying those determinations, explicating the Court's interest in treating economic sanctions as fines where they are used by the government to punish-evidenced by a link to prohibited conduct or treatment of economic sanctions like other recognized forms of punishment-as well as the Court's desire that the Clause serve as a bulwark against the risk that the prosecutorial power will be abused due to the revenue generating capacity of economic sanctions.  Applying these core concerns supports the conclusion that common forms of economic sanction (including statutory fines, surcharges, administrative fees, and restitution) constitute fines for purposes of the Clause.

In addition, this Article examines the meaning of excessiveness, arguing that one's ability to pay is relevant to the question of whether a fine is constitutional.  The Court has adopted the Cruel and Unusual Punishments Clause's gross disproportionality test for measuring excessiveness.  Attending to financial circumstances in the excessiveness inquiry is in harmony with key principles animating the proportionality doctrine: equality in sentencing, comparative proportionality between offenses of different seriousness, the expressive value of punishment, concern for the criminogenic effect of and other social harms caused by punishment, and the prohibition on punishments that unreasonably infringe on human dignity.

March 29, 2018 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (1)

Thursday, March 08, 2018

Highlighting that registries are not only for sex offenders in many states

This new Marshall Project piece, headlined "Convicted of a Drug Crime, Registered with Sex Offenders," focuses on the broad reach of the offender registry employed in Kansas and debate over its reform.  I recommend the piece in full, and here are excerpts from the piece:

Lawmakers have long justified sex offender registries as a way to notify people about potentially dangerous neighbors or acquaintances, while critics say they fail to prevent crime and create a class of social outcasts.  Over the years, several states have expanded their registries to add perpetrators of other crimes, including kidnapping, assault, and murder.  Tennessee added animal abuse.  Utah added white collar crimes.  A few states considered but abandoned plans for hate crime and domestic abuse registries.  At least five states publicly display methamphetamine producers.

But Kansas went furthest, adding an array of lesser drug crimes; roughly 4,600 people in the state are now registered as drug offenders.  As deaths from opioids rise, some public officials have focused on addiction as a public health issue.  Kansas offers a different approach, as law enforcement officials argue that the registry helps keep track of people who may commit new offenses and cautions the public to avoid potentially dangerous areas and individuals.  At the same time, many registrants say it can be hard to move on when their pasts are just a click away for anyone to see.

The Kansas legislature is currently considering a bill proposed by the state’s sentencing commission that would remove drug offenders from the registry.  “It is a drain on resources with no science, studies, or data to justify it,” defense lawyer Jennifer Roth told lawmakers at an early February hearing.

The Kansas law, first passed in 2007, now requires anyone convicted of manufacturing, distributing, or possessing “with intent to distribute” drugs other than marijuana to remain on the registry for a minimum of 15 years (and a maximum of life, for multiple convictions.)  During that time, they must appear at their county sheriff’s office four times a year, as well as any time they move, get a new job, email address, vehicle, or tattoo.  Most of this information is online, searchable by name or neighborhood, and members of the public can sign up to be emailed when an offender moves in or starts work near them.  (In 2013, when businesses expressed fear of vigilantes targeting registrants at work, lawmakers removed employment addresses from the website.)  During the quarterly sheriff visits, they must pay $20 and have their picture retaken; if they work or go to school in another county, they must register there as well.  “Any time I get a new job, I have to say, ‘Sorry, I need time off’ in the first 72 hours,” said Juston Kerns, 35, arrested for involvement in the sale of methamphetamine in 2014.

A few years ago, Wesley Harden — convicted in 2008 of selling methamphetamine after he led police on a high-speed chase — was arrested and charged with “failure to register.” Harden, 35, showed up as required, but he’d recently failed to report a jet ski as a new vehicle.  He doesn’t know for sure how the authorities discovered the jet ski, but thinks it has to do with pictures he posted on Facebook.  Harden received three years of probation, but the punishment for failing to register can include prison time, even if the original conviction was handled without incarceration.  Last year, 38 people were sent to prison over their failure to register for drug crimes, and the Kansas Sentencing Commission estimates that removing drug crimes would save the state roughly a million dollars each year....

Many law enforcement officials support the registry on public safety grounds. “People who sell drugs, there tends to be dangerous activity that takes place around their residence,” said Ed Klumpp, a retired Topeka police chief who lobbies for law enforcement at the legislature and opposes the current bill. “If you’re raising children in the neighborhood, it’s good to know there is someone down the street convicted of selling or manufacturing, so maybe they won’t send the kids to get candy there on Halloween.”

In recent years, lawyers around the country have argued to increasing success that registration requirements are unconstitutional.  One county in Colorado recently took its registry offline after a judge found it to be cruel and unusual punishment. California recently passed a law allowing sex offenders to be removed from the registry after 10 to 20 years if they have not committed another serious or violent felony or sex crime.

But beyond the legal questions are practical ones.  Little is known about whether registries prevent crime, and University of Michigan law professor J.J. Prescott has speculated that they may even facilitate crimes that involve buyers and sellers.  “Imagine I move to a new city and I don't know where to find drugs,” he said.  “Oh, I can just look up people on the registry!”

Evidence to support this theory is scant — and law enforcement leaders in Kansas say they have not encountered the problem — but at the February legislative hearing, Scott Schultz, the executive director of the Kansas Sentencing Commission, said he had learned of one registrant who found people at her door, looking to buy drugs.  They’d seen her address online. “I’ve called it, tongue in cheek, state-sponsored drug-dealing,” Schultz said, describing the registry as an “online shopping portal for meth and other drugs.”

March 8, 2018 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (4)

Monday, March 05, 2018

Making a fulsome case on the merits against sex offender registries

This morning, the US Supreme Court granted cert in Gundy v. US to consider whether Congress's delegation to the attorney general the power to issue regulations interpreting the federal Sex Offender Notification and Registration Act violates the nondelegation doctrine. That grant on that issue right has Con Law fans buzzing. But sentencing fans more interested in the substance of sex offender registries will want to check out this new commentary by Jesse Kelley in The Hill under the headline "The Sex Offender Registry: Vengeful, unconstitutional and due for full repeal." Here are excerpts:

The Bureau of Justice Statistics reports that at least 95 percent of all state prisoners will be released from prison at some point. However, convicted sex-offenders almost exclusively face the vengeful, additional punishment of registration under the Sex Offender Registry and Notification Act (SORNA).

Generally, under SORNA, an individual who is required to register as a sex offender must register at least once a year; report any change of address within as little as three days; produce vehicle information, a recent photograph and a DNA sample; and abide by stringent residency restrictions, which can force individuals out of urban areas, away from family and into unemployment.

SORNA violates our nation’s founding documents by singling out a specific category of offenders for unfair, unconstitutional punishment. While the Department of Justice cites public safety as its rationale for continuing to enforce the overreaching requirements of SORNA, the program has metastasized, defacing some of our most treasured rights: the right to due process, the right to be free from double jeopardy and the right to avoid cruel and unusual punishment.....

The Pennsylvania Supreme Court ruled that the state’s version of SORNA violates juvenile offenders’ due process rights because the requirements of satisfying SORNA assume that a juvenile will commit some sex offense in the future without giving him or her the opportunity to challenge that assumption. Equity demands assigning this same ruling to adult reporting requirements.

Another element of due process known as “double jeopardy” appears in the Fifth Amendment and protects an individual from being prosecuted for the same offense twice. It also bars multiple punishments for the same crime. Individuals convicted of crimes who have faced incarceration and then must begin sex registry-reporting are certainly being punished repeatedly.

SORNA requirements punish ex-offenders by inflicting upon them tangible, secondary punishments, like the inability to qualify for housing and increased difficulties securing employment. These secondary punishments effectively banish ex-offenders to a modern leper colony by not only removing re-entry resources but also by affirmatively ostracizing those attempting to rebuild a life after incarceration.

In addition to violating double jeopardy, repeated punishments violate the Eighth Amendment by imposing cruel and unusual punishment. The government is prohibited from imposing a criminal sentence that is either vindictive or far too harsh for the crime committed. Incarceration is intended to be a punishment and a deterrence, so any subsequent punishment can only be vindictive. After incarceration, an ex-offender’s privacy is significantly diminished by the requirement to report one’s name, address, photo, employment status and provide a DNA sample.

Last fall, a federal judge found that the Colorado sex offender registry’s punitive impact outweighed any value it might have had in protecting the public and concluded that registration violates the prohibition against cruel and unusual punishment. As the judge specifically stated, “This ongoing imposition of a known and uncontrollable risk of public abuse of information from the sex offender registry, in the absence of any link to an objective risk to the public posed by each individual sex offender, has resulted in and continues to threaten [sex offenders] with punishment disproportionate to the offenses they committed.”

As Clarence Darrow famously said, “You can only protect your liberties in this world by protecting the other man's freedom. You can only be free if I am free.” Protecting the constitutional rights of everyone, even those convicted of sex offenses, is of the upmost importance for protecting our freedom. Therefore, both legislators — by way of developing and amending laws — and judges — via hearing arguments and creating case law — must re-examine SORNA in order to preserve liberty and uphold the Constitution.

March 5, 2018 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (9)

Monday, January 29, 2018

Two notable new reports urging big reductions in population on probation and parole

Capture jllAs detailed in this press release, "two new reports were released today – one national in scope and one focused on New York City and State — looking at probation and parole as key drivers of mass incarceration with minimal benefit to public safety or individual rehabilitation."  Here is more from the release:

The reports argue that the tremendous growth of people locked up for probation and parole violations — many of which are for minor, technical violations — is financially taxing on the corrections system and should be cut in half.

The national report, Too Big to Succeed was released by the Justice Lab at Columbia University and signed by 20 of the nation’s leading corrections administrators. According to the new report, there are nearly five million adults under community corrections supervision in America (more than double the number in prison and jail).  The almost four-fold expansion of community corrections since 1980 without a corresponding increase in resources has strained many of the nation’s thousands of community supervision departments, often unnecessarily depriving clients of their liberty without improving public safety.

Underfunded and with few alternatives, community corrections officers have learned to default to the most available option they have for those who violate the terms of their supervision — prison.  Many are reincarcerated for nothing more than a technical violation.  Regrettably, these punishments fall most heavily on young African American men....

The New York report, Less is More in New York, notes that while crime is declining in the City and jail populations have dipped below 9,000 for the first time in 35 years, only one population has increased — those in city jails for state parole violations (by 15%).  And 81% of those incarcerated in city jails for parole violations are either in for technical violations, misdemeanors, or non-violent felony arrests.

As state and city leaders agree that the jail complex on Rikers Island should be closed requiring a reduction in the NYC jail population, the report argues that the solution could be reducing unnecessary incarceration of persons on parole as well as to shrink the overall parole population and focus supervision and supports on those who need it the most.

Here are the full titles of these reports and links thereto:

January 29, 2018 in Criminal Sentences Alternatives, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (0)

Tuesday, January 09, 2018

Making the case against juvenile sex offender registration requirements

Rebecca Fix has this new commentary that caught my eye under the headlined "Young Sex Offenders Shouldn’t Have to Register; It’s Ineffective and Hurts Everyone Around Them." The whole piece (and its many links) are worth checking out, and here is how it gets started:

Sex offender registration policies were initially developed for adults with sexual offenses, but have recently been extended to include youth with sexual offenses as well.  At first glance, sex offender registration and notification (hereafter referred to as SORN) may make us feel safer, produce relief knowing that these individuals are being punished.

However, many of us don’t realize that these practices don’t protect our children.  Required registration of and notification about youth with illegal sexual behavior, in particular, has resulted in serious economic and psychological burdens at multiple levels, affecting not only the youth who have to register (e.g., increase in suicidal ideation), but also their families (e.g., judgment from others, loss of job), neighbors (e.g., devaluation of home value) and communities (e.g., stress levels, potential changes in reputation).

Mental health providers and child advocates like myself and colleagues at the Moore Center for the Prevention of Child Sexual Abuse who have examined policies concerning sexual offending among youth know that SORN requirements stem from an ill-fitting classification system that has deleterious consequences.

January 9, 2018 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (3)

Wednesday, January 03, 2018

Detailing increase in felony convictions nationwide in modern times

Stateline has this new piece, headlined "Felony Conviction Rates Have Risen Sharply, But Unevenly," with detailed data on how increases in the number of felony convictions has come to define the modern criminal justice era in the United States. Here are some details:

In recent decades, every state has seen a dramatic increase in the share of its population convicted of a felony, leaving more people facing hurdles in finding a job and a place to live and prompting some states to revisit how they classify crimes.

In Georgia, 15 percent of the adult population was a felon in 2010, up from around 4 percent in 1980. The rate was above 10 percent in Florida, Indiana, Louisiana and Texas. Less than 5 percent of the population in Maine, Nebraska, New Hampshire, New York, Utah and West Virginia were felons, but every state had a large increase between 1980 and 2010, when the felony population ranged from 1 to 5 percent, according to a University of Georgia study published in October....

Proponents of more lenient sentencing tend to focus on imprisonment, where Louisiana and Oklahoma have the highest rates, but probation is more common. There were 1.9 million people on felony probation in 2015, compared to 1.5 million in prison. In 2010, the two figures were about the same, at 1.6 million, according to the latest federal statistics.

Many view probation as a more humane alternative to imprisonment, said Michelle Phelps, an assistant professor of sociology at the University of Minnesota. But in some states probation has become a “net widener” that draws more nonviolent criminals into the stigma and harsh supervision of a felony conviction.

Phelps pointed to Minnesota, which has one of the lowest rates of imprisonment, but ranked 16th for felon population in 2010. That year felons were about 9 percent of Minnesota’s population, or nearly quadruple the rate in 1980. “Though it’s frequently dismissed as a slap on the wrist, probation can entail onerous requirements,” Phelps said. For instance, probation can require a job and good housing as a condition for staying out of prison, but the felony conviction itself can make it hard or impossible to get that job.

Gary Mohr, who heads Ohio’s Department of Rehabilitation and Correction, said a felony conviction can have lifelong consequences, no matter whether the punishment is imprisonment or probation. “Even probation or a six-month sentence is really a life sentence because it affects jobs, it affects housing, it affects everything in their lives,” Mohr said....

The findings may help put probation reform on the front burner in some states. In Georgia, a February 2017 report by a state commission called for shorter probation sentences and lighter caseloads for probation officers. (The Pew Charitable Trusts, which also funds Stateline, assisted with the paper.) Almost 3 percent of Georgia’s adult population was on felony probation as of 2015 — far more than any other state and a 12 percent increase from 2010, according to the latest federal figures from the Bureau of Justice Statistics....

When crime rates rose in the 1980s and early 1990s, local and state leaders hired more police and they made more arrests, including felony arrests, Phelps said. In addition, many states elevated nonviolent crimes like drug possession to felony status, and many district attorneys adopted a get-tough strategy, seeking felony charges whenever possible. Police focused drug enforcement on high-crime neighborhoods, which were often predominantly African-American, Phelps said. As a result, felony convictions rose much faster among blacks than among whites.

In 2010, about 23 percent of the black population had a felony conviction. The number of African-American felons increased more than fivefold between 1980 and 2010, while the number increased threefold for other felons. The University of Georgia study did not calculate separate rates for Hispanics or other minority groups.

In left-leaning states such as Massachusetts, Minnesota and Oregon, one contributor to the growing share of the population with a felony conviction was an increased awareness of new crimes like domestic violence, sexual abuse and animal abuse, said Josh Marquis, a district attorney in Oregon and a 20-year board member of the National District Attorneys Association.

When crime is a major concern in a community, elected district attorneys are especially sensitive to public pressure to file more felony charges, Marquis said. “We are not rewarded for the number of felonies filed,” Marquis said. “But we do face election and accountability to our neighbors who are also our bosses.”

January 3, 2018 in Criminal Sentences Alternatives, Data on sentencing, Detailed sentencing data, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (3)

Tuesday, January 02, 2018

"American Exceptionalism in Crime and Punishment"

9780190203542The title of this post is the title of this new book published by Oxford University Press. The book is an edited collection of essays curated by Kevin Reitz. Here is the publisher's description of the book:

Across the U.S., there was an explosion of severity in nearly every form of governmental response to crime from the 1970s through the 2000s.  This book examines the typically ignored forms punishment in America beyond incarceration and capital punishment to include probation and parole supervision rates-and revocation rates, an ever-growing list of economic penalties imposed on offenders, and a web of collateral consequences of conviction unimaginable just decades ago.  Across these domains, American punitiveness exceeds that in other developed democracies-where measurable, by factors of five-to-ten.  In some respects, such as rates of incarceration and (perhaps) correctional supervision, the U.S. is the world "leader."  Looking to Europe and other English-speaking countries, the book's contributors shed new light on America's outlier status, and examine its causes.  One causal theory examined in detail is that the U.S. has been exceptional not just in penal severity since the 1970s, but also in its high rates of high rates of homicide and other serious violent crimes.

With leading researchers from many fields and national perspectives, American Exceptionalism in Crime and Punishment shows that the largest problems of crime and justice cannot be brought into focus from the vantage point of any one jurisdiction.  Looking cross-nationally, the book addresses what it would take for America to rejoin the mainstream of the Western world in its uses of criminal penalties.

Kevin kindly sent me a copy of the book's Table of Contents and his introductory chapter for posting. That chapter can be downloaded below, following these passages from that chapter's introduction:

One goal of this book is to broaden the scope of American Exceptionalism in Crime and Punishment (AECP) inquiry to include sanctions beyond incarceration and the death penalty.  From what we know, it is reasonable to hypothesize that the United States imposes and administers probation, parole, economic sanctions, and collateral consequences of conviction with a heavier hand than other developed democracies.  Although the inquiries in this book are preliminary, they raise the possibility that AECP extends across many landscapes of criminal punishment — and beyond, to the widespread social exclusion and civil disabilities imposed on people with a conviction on their record.

In addition, the book insists that any discussion of AECP should focus on US crime rates along with US penal severity.  More often than not, American crime is discounted in the academic literature as having little or no causal influence on American criminal punishment.  This is a mistake for many reasons but is especially unfortunate because it truncates causation analyses that should reach back to gun ownership rates, income inequality, conditions in America’s most disadvantaged neighborhoods, and possibilities of joint or reciprocal causation in the production of US crime rates and punitive severity.

This chapter is divided into three segments.  First, it includes a brief tour of the conventional AECP subject areas of incarceration and the death penalty.  Second, it will introduce claims that a wider menu of sanction types should be included in AECP analyses. Third, it will speak to the importance of late twentieth-century crime rates to US punitive expansionism.

Download AECP Reitz Introduction for SSRN

January 2, 2018 in Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentencing around the world, Who Sentences | Permalink | Comments (1)

Wednesday, December 27, 2017

Garden State perspective on sex offender castration ... for no obvious reason

This lengthy new local article from New Jersey, headlined "New Jersey child molesters won’t face castration threat any time soon," provides an example of how castration of sex offenders interests reporters even absent having an obvious reason to focus on the issue.  Here is how the article starts and some additional excerpts:

In a year filled with arrests for sexual crimes against child victims, there is a familiar refrain heard each time one of these arrests is announced.  “Castrate him,” is shouted from all corners of society and social media.

Almost 80 alleged child molesters or kiddie porn collectors were arrested this year by a regional task force.  None of those offenders, however, will ever have to face castration-style penalties if convicted in New Jersey Superior Court.  That’s because New Jersey, unlike a handful of states across America, lacks a law that would require certain sex offenders to be neutered or semi-neutered.

Removing a sex offender’s testicles or doping him up on testosterone-reducing drugs may sound harsh, but that is the law of the land in certain jurisdictions outside the Garden State. Several states across America have laws requiring certain child molesters to take so-called “chemical castration” hormonal drugs that curtail sexual desire by sharply reducing testosterone levels, but New Jersey state lawmakers have not seriously considered that idea since the turn of the century. Surgical castration — a medical procedure that physically removes a male’s testicles — is an option for certain Megan’s Law offenders in California who prefer to voluntarily undergo a permanent, surgical alternative to hormonal chemical treatment....

New Jersey politicians have concerns about the sexual exploitation of children — Republican Gov. Chris Christie on July 21 signed a bill sponsored by Sen. Linda Greenstein (D-Mercer/Middlesex) to strengthen New Jersey’s child pornography laws and establish additional penalties against leaders of child porn networks — but a politician has not introduced a castration bill in the state Legislature in over 20 years.

A state senator in 1996 wanted New Jersey to force male defendants convicted twice of aggravated sexual assault on a young child to receive chemical castration as punishment. Inspired by California’s example, former State Sen. Joseph L. Bubba (R-Passaic) introduced Senate Bill No. 1568 in the chamber on Oct. 3, 1996. He signed on as the primary sponsor of the bill that, if enacted, would have required chemical castration of certain sex offenders.  The bill was introduced in the New Jersey Senate and referred to the Senate Judiciary Committee, where it died without being acted upon. 

Bubba’s political career then quickly unraveled when he lost a GOP primary in June 1997.  No other politician since Bubba has introduced a chemical castration bill in the New Jersey Legislature.

December 27, 2017 in Criminal Sentences Alternatives, Sex Offender Sentencing, Who Sentences | Permalink | Comments (13)

Sunday, December 24, 2017

Interesting (and sound?) outcome for juve who pled guilty to Slender Man stabbing

Serious crimes committed by young kids present a range of difficult sentencing issues, and a high-profile case of this variety was resolved on quite interesting terms last week.  This ABC News article, headlined "Teen who pleaded guilty in Slender Man stabbing case to remain in institutional care for 25 years, judge says," provide this account of the outcome:

A judge has sentenced one of the two Wisconsin teenagers accused of stabbing their friend in the woods to please the online fictional character Slender Man. Anissa Weier, 16, will now spend 25 years under a mental health institution’s supervision, with credit for her 1,301 days already spent in incarceration.  More than two years and six months of her sentence will be spent in a mental hospital before she can petition the court for release every six months.  If released, Weier will remain under institutional supervision until year 2039 and will be 37 years old.

“I just want everyone involved in this to know that I do hold myself accountable for this,” Weier told the court.  “I want everybody involved to know that I deeply regret everything that happened that day, and that I know that nothing I say is going to make this right, your honor, and nothing I say is going to fix what I broke.  I am just hoping that by holding myself somewhat accountable and making myself responsible for what I took part in that day, that I can be responsible and make sure this doesn’t happen again. I’m never going to let this happen again.”

Weier pleaded guilty earlier this year to attempted second-degree intentional homicide, as a party to a crime, with the use of a dangerous weapon as part of a plea deal.  A jury then found Weier not guilty by reason of mental disease or defect. Earlier this year the court also accepted a plea deal for co-defendant Morgan Geyser, who pleaded guilty to attempted first-degree intentional homicide.  In accordance with the plea deal, the court also found Geyser not guilty by reason of mental disease or defect despite her earlier guilty plea. Geyser’s sentencing is set for 2018.

In a victim impact statement, Stacie Leutner, mother of the stabbing survivor Payton Leutner, wrote that she and her family accept the plea deals but petitioned Judge Michael Bohren to “consider everything Payton and those closest to her have endured over the last three-and-a-half years” prior to the sentencing. In the victim impact statement, Stacie Leutner wrote that some of her daughter’s wounds from the attack still “tingle and ache and remind her of their presence every day.”...

“We accepted the plea deals for Morgan and Anissa for two reasons,” Stacie Leutner wrote. “First, because we believed it was the best thing to do to ensure Payton would not have to testify.  Traumatizing her further didn’t seem worth it. She has never talked about her attack so asking her to testify and relive her experience in front of a courtroom of strangers felt cruel and unnecessary. And second, because Payton felt placement in a mental health facility was the best disposition for both girls.”  Although she has accepted the plea deals, Stacie Leutner writes that her daughter “still fears for her safety.”

Weier and Geyser were arrested May 31, 2014, after the stabbing of Payton Leutner, whom they left in the woods in Waukesha, Wisconsin.  Leutner crawled to a nearby road and was helped by a passing bicyclist before she was hospitalized with life-threatening injuries but survived. Weier, Geyser and Payton Leutner were 12 years old at the time. Prosecutors have said that both girls were obsessed with the character Slender Man, who is often depicted in fan fiction stories online as a horror figure who stalks children.

In January, Weier's parents told “Good Morning America” that their daughter had expressed remorse. Her mother, Kristi Weier, said that according to police interview tapes of Geyser and her daughter, "They thoroughly believed that Slender Man was real and wanted to prove that he was real."

December 24, 2017 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (1)

Wednesday, December 13, 2017

"Opioids: Treating an Illness, Ending a War"

The title of this post is the title of this new report from The Sentencing Project. Here is how the report's executive summary gets started:

More people died from opioid-related deaths in 2015 than in any previous year.  This record number quadrupled the level of such deaths in 1999. Unlike the heroin and crack crises of the past, the current opioid emergency has disproportionately affected white Americans — poor and rural, but also middle class or affluent and suburban.  This association has boosted support for preventative and treatment-based policy solutions. But the pace of the response has been slow, critical components of the solution — such as health insurance coverage expansion and improved access to medication-assisted treatment— face resistance, and there are growing efforts to revamp the failed and costly War on Drugs.

This report examines the sources of the opioid crisis, surveys health and justice policy responses at the federal and state levels, and draws on lessons from past drug crises to provide guidance on how to proceed. The War on Drugs did not play a major role in ebbing past cycles of drug use, as revealed by extensive research and the reflections of police chiefs. In 2014, the National Research Council concluded: "The best empirical evidence suggests that the successive iterations of the war on drugs — through a substantial public policy effort—are unlikely to have markedly or clearly reduced drug crime over the past three decades."

Growing public awareness of the limited impact and devastating toll of the War on Drugs has encouraged many policymakers and criminal justice practitioners to begin its winding down.  The number of people imprisoned nationwide for a drug offense skyrocketed from 24,000 in 1980 to a peak of 369,000 in 2007.

It has since declined by nearly one-quarter, reaching approximately 287,000 people in the most recent count.  The lessons from past drug crises and the evidence base supporting a public health approach can guide policymakers as they seek an end to the current opioid crisis.

December 13, 2017 in Criminal Sentences Alternatives, Drug Offense Sentencing, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Tuesday, December 12, 2017

"Sex Registries as Modern-Day Witch Pyres: Why Criminal Justice Reform Advocates Need to Address the Treatment of People on the Sex Offender Registry"

The title of this post is the title of this notable new In Justice commentary authored by Guy Hamilton-Smith. I quoted the title in full because it is all worthy of reflection, as is the entire commentary that follows. Here is an excerpt:

The sex offender is the modern-day witch: the registry, the contemporary pyre. A scarlet letter for our technocratic era, forcing people to register as sex offenders “is what puritan judges would’ve done to Hester Prynne had laptops been available.” While undoubtedly there are those on the registry who have been convicted of blood curdling crimes, the designation is also extended to those who have been convicted of far more banal ones.

Reformers urgently need to draw public attention to the cruel and unnecessarily harsh treatment afforded to sex offenders within the justice system. Sex offender registries are rapidly proliferating and becoming an increasingly popular back-end tool for feeding people into the carceral state.

In understanding the reasons why sex offenders ought to be a higher priority for mainstream justice reform advocates, a grasp of the evolution and operation of the sex offender registry is critical....

The number of people listed on a sex offender registry in the United States has grown from slightly more than 500,000 in 2005 to 874,725 today. Research has found that sex offender registries have a disproportionate impact on minorities.

While registries and their attendant requirements are sold as enhancing public safety, research consistently indicates that they are exceedingly bad at this goal. One explanation is because, contrary to Smith’s baseless assertion and what most believe, people on the registry have one of the lowest rates of re-offending out of any class of criminal....

As a piece of criminal justice machinery brought to bear on people, the registry can best be thought of as a two-headed beast: a 1–2 punch of distinct effects.

The first head is the direct impact on the lives of those on the registry itself. With no Due Process or Ex Post Facto brakes to slow down the juggernaut, it has become weaponized.  A far cry from its origins as a simple list of purported perverts, it has morphed into a web of prison-without-bars that would make Franz Kafka blush. The oppressiveness, breadth, and lack of due process inherent in these modern day sex offender registries led a federal court in Colorado to label it a cruel and unusual punishment; a legal conclusion virtually unheard of outside of the cloistered world of death penalty litigation.

The second head is the tangle of legal requirements for those on the list: a knot of vague, illogical, ever-expanding, and sometimes contradictory laws that even lawyers, judges, and law enforcement have difficulty interpreting.  Examples can include strict time limits on reporting even minor changes in information (such as online accounts) or residence, residency restrictions, or even the clothing one wears. States promise swift felony prosecutions if individuals do not observe hyper-technical compliance with these requirements.

Unsurprisingly, it is exceedingly easy to run afoul of the requirements, keeping those that do trapped in a cycle of legislatively-crafted “crime” that can be tantamount to a de facto life sentence. “Failure to register” is fast becoming the crime of choice for returning those on the registry to prison.  In 2008 in Minnesota, failure to register charges became the most common reason sex offenders were returned to prison.  Between 2000 to 2016, Texas saw a more than 700% increase in FTR arrests, from 252 in 2005 to 1,497 in 2017. To borrow a phrase from computer programming, this is not some kind of criminal justice bug. It is a feature.

December 12, 2017 in Collateral consequences, Criminal Sentences Alternatives, Sex Offender Sentencing, Who Sentences | Permalink | Comments (11)

Monday, December 11, 2017

"Graduating Economic Sanctions According to Ability to Pay"

The title of this post is the the title of this new and timely article authored by Beth Colgan now available via SSRN. Here is the abstract:

There is growing recognition that economic sanctions — fines, surcharges, fees, and restitution — are routinely imposed at rates many people have no meaningful ability to pay, which can exacerbate financial instability and lead to the perception that economic sanctions are unfairly punitive to people of limited means.  Concerns triggered primarily by highly punitive tactics, including incarceration and long-term probation of low-income debtors for the failure to pay, have led to increasing calls for reform.  While much attention is now being paid to the back-end of the system, and particularly limitations on punitive responses for the failure to pay due to poverty, this Article considers the problem from the front-end.  In particular, this Article focuses on a potential reform with increasing bipartisan support: the graduation of economic sanctions according to a person’s financial circumstances.

To that end, this Article explores several key considerations essential to designing a system of graduation, relying heavily on a largely-forgotten experiment in seven geographically, demographically, and politically diverse jurisdictions in the United States with the “day-fine.”  A day-fine is calculated using a penalty unit assigned based on the seriousness of the offense of conviction.  The penalty unit is then multiplied by the defendant’s adjusted daily income to determine the day-fine amount.  The result is an economic sanction adjusted to offense seriousness and simultaneously graduated to the defendant’s financial condition.  This Article mines the historical record of the American day-fines experiments — complemented by recent interviews with people involved in the design and implementation of the projects and experiences with means-adjustment in the consumer bankruptcy, tax, and public benefits contexts — for lessons on the design of graduating economic sanctions.  What emerges from this review is promising evidence that a properly designed and implemented system for graduation is consistent with efficient court administration, revenue generation, and equality in sentencing. 

December 11, 2017 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (1)

Friday, December 08, 2017

"Invisible Punishment is Wrong – But Why? The Normative Basis of Criticism of Collateral Consequences of Criminal Conviction"

The title of this post is the title of this new piece now on SSRN authored by Christopher Bennett. Here is its abstract:

This article is concerned with the way in which criminal justice systems cause harms that go well beyond the ‘headline’ punishment announced at sentencing.  This is the phenomenon of ‘collateral consequences of criminal conviction’.  This phenomenon has been widely criticised in recent criminological literature.  However, the critics do not normally explore or defend the normative basis of their claims — as they need to if their arguments are to strike home against sceptics.

I argue that the normative basis of the critics’ position should be seen as involving important normative claims about the responsibilities that societies have towards those who break the law.  Some important strands of criticism, I claim, rest on the view that we have associative duties towards offenders (and their dependants and communities) as fellow participants in a collective democratic enterprise, duties that are violated when states impose, or allow, harms that go significantly beyond the sentence.

December 8, 2017 in Collateral consequences, Criminal Sentences Alternatives, Purposes of Punishment and Sentencing | Permalink | Comments (5)

Friday, December 01, 2017

Looking into the politics and personnel of state-level criminal justice reforms

The December 2017 issue of the ABA Journal has this lengthy article on state-level reform efforts, giving particular attention to recent reforms in Louisiana and Alaska. In the magazine the article has the headline "“Rallying for Reform: Criminal justice reform may be languishing at the federal level, but it’s becoming a reality in the states with bipartisan support," and here is an excerpt:

Adam Gelb, director of the Pew Charitable Trusts’ Public Safety Performance Project, says 36 states have enacted some kind of criminal justice reform — eight of them more than once — over the past 10 years.

And although those reforms can be a struggle to get through legislatures, they tend to win approval — even in “red” states such as Louisiana — because they have bipartisan support. They bring together legislators with diverse backgrounds and interests, including controlling crime, reducing corrections costs, embracing religious ideas about redemption, reducing the size of government, grappling with the effect of imprisonment on families and minority communities, and questioning the morality of locking up so many people.

“The reason that it is so bipartisan and cross branch is that it meets many objectives,” says Alison Lawrence, Criminal Justice Program director for the National Conference of State Legislatures. “I would say behind all of it, everybody cares about public safety, and that’s the underlying factor.”...

According to the Urban Institute, which studies the outcomes of justice reinvestment, achieving a better return can be met in several ways.  Reducing sentences, in a thoughtful and politically palatable way, is one component.  But so are reducing the number of people held in lieu of bail and the time they’re held, expanding eligibility for parole and other ways to be released from prison, and providing alternatives to prison for probation and parole violations.

By reducing the number of prisoners, states save money — often hundreds of millions of dollars.  Then, states “reinvest” some of that money in programs they believe will reduce crime, and therefore the need for prisons.  That includes prison-based re-entry or job training programs, more probation and parole officers, and grants to community groups that help with re-entry-related problems like mental health and substance abuse.  States may also lift the legal restrictions they place on former offenders, such as eligibility for professional licenses.

States are receptive, Gelb says, in part because they’ve seen the success of earlier adopters — especially Texas, which is the widely acknowledged godfather of justice reinvestment.  In 2007, the Texas Department of Public Safety, which handles corrections, anticipated that it would need 14,000 to 17,000 more prison beds over the next five years.  So it asked the legislature for $2 billion.  Legislators blanched at that cost and instead tried to make the new prison beds unnecessary by spending $241 million on behavioral health and alternative sanctions programs.

Ten years — and several more bills — later, Texas has actually closed several prisons.  State authorities estimate that Texas has reduced its incarceration rate by 20 percent and its crime rate by 30 percent, all while avoiding $4 billion in costs.  It’s also become a model for other states, particularly its Southern neighbors.

December 1, 2017 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences | Permalink | Comments (4)