Thursday, September 17, 2020

"Public opinion and the politics of collateral consequence policies"

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

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

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

Saturday, September 12, 2020

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

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

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

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

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

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

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

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

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

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

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

Saturday, August 22, 2020

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

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

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

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

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

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

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

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

Wednesday, August 12, 2020

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

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

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

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

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

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

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

Friday, July 31, 2020

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

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

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

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

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

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

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

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

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

Thursday, July 09, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior Michael Cohen posts:

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

Monday, June 29, 2020

"The Limits of Fairer Fines: Lessons from Germany"

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

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

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

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

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

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

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

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

Wednesday, June 17, 2020

"Restorative Justice From Prosecutors' Perspective"

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

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

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

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

Monday, June 15, 2020

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

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

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

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

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

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

Sharon Brett, Neda Khoshkhoo, and Mitali Nagrecha

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

Wednesday, June 10, 2020

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

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

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

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

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

Tuesday, April 28, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

• Establish effective and appropriate supervision conditions....

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

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

• Support community supervision agencies.... 

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

Tuesday, April 21, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Friday, March 27, 2020

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

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

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

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

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

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

Doug — What do you think?   

Readers — What do you think?

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

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

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

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

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

Thursday, March 26, 2020

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

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

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

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

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

Prior related posts:

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

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

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

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

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

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

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

Thursday, March 05, 2020

Will Oregonians vote to decriminalize all drug possession this November?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Friday, February 28, 2020

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

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

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

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

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

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

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

Thursday, February 27, 2020

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

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

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

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

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

Thursday, February 20, 2020

"From Decarceration to E-Carceration"

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

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

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

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

Tuesday, February 18, 2020

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

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

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

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

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

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

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

Friday, February 07, 2020

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

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

New 2019 laws restore voting rights in 11 states

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

Record-breaking number of new expungement laws enacted in 2019

New 2019 laws on diversion and other non-conviction dispositions

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

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

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

Monday, December 09, 2019

"The Problem of Problem-Solving Courts"

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

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

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

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

Thursday, November 21, 2019

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

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

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

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

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

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

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

Saturday, October 26, 2019

Philadelphia Inquirer provides detailed coverage of "The Probation Trap"

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

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

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

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

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

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

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

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

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

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

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

Here are the main articles in the series:

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

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

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

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

Thursday, October 17, 2019

Bold goal for the REFORM Alliance: "get 1 million people out of the criminal justice system in five years"

In this post earlier this year, I blogged about the celebrities and business leaders coming together to form the REFORM Alliance, which is committed to "dramatically reduce the number of people who are unjustly under the control of the criminal justice system – starting with probation and parole."  I have long had great respect for the commitment and vision of this group, but I was especially exciting to see this press article discussion a bold goal for the Alliance.  The piece is headlined "Inspired by Meek Mill, Michael Rubin sets a goal: Get 1 million people out of the criminal justice system," and here are excerpts:

Michael Rubin first encountered the criminal justice system when he saw rapper Meek Mill sentenced to prison for a violation of his probation. “That was a life-changing moment for me," Rubin said.

Speaking at the B.PHL Innovation Festival in the Entercom media headquarters Tuesday, Rubin explained how that moment sparked a movement.  The billionaire entrepreneur made it his mission to get Mill out of prison and, following a massive public outcry and social media campaign (#FreeMeek), he was released after five months.

Now, Rubin and Mill, who have been close friends for years, are working to transform the criminal justice system. In January, Rubin and Mill founded The REFORM Alliance, a partnership of titans in the entertainment, sports and business worlds.  They’re focusing on disrupting the probation system, which oversees 180,000 people in Pennsylvania alone, according to federal figures.

The REFORM Alliance is pushing to change Pennsylvania law to reduce the number of years people can stay on probation and to ensure people can’t be sent back to prison for technical violations.  About one in four prison admissions nationwide are due to probation violations, according to a study by the Council for State Governments Justice Center.

Pennsylvania is just the first step for the REFORM Alliance.  Rubin said the organization’s nationwide mission is to get 1 million people out of the criminal justice system in five years.  Nationwide, there are more than 4.5 million on probation and parole. “One million is a gigantic number,” Rubin said.  But he added, “I’m going to be unrelenting until we accomplish that.”...

Rubin’s got the money and the message to make a difference.  He’s the founder and CEO of Kynetic, the firm which owns online retailers Fanatics, Rue La La and ShopRunner.  He’s also a partner of the Philadelphia 76ers and a minority owner of the New Jersey Devils.

He lined up heavy hitters to build REFORM.  Other founding partners include hip-hop superstar and entrepreneur Jay-Z, New England Patriots owner Robert Kraft and Robert Smith, founder and CEO of Vista Equity Partners and the richest black man in America.  Rubin tapped political activist Van Jones to serve as the CEO of REFORM.  The group now has more raised than $50 million and is working to convince lawmakers and voters of the need for change.

October 17, 2019 in Criminal Sentences Alternatives, Reentry and community supervision, Who Sentences | Permalink | Comments (1)

"Work, Pay, or Go to Jail: Court-Ordered Community Service in Los Angeles"

The title of this post is the title of this notable new report coming from folks at UCLA.  This webpage provides this overview of the report's coverage:

Work, Pay, or Go to Jail: Court-Ordered Community Service in Los Angeles is the first study to analyze a large-scale system of court-ordered community service in the contemporary United States.  It finds that court-ordered community service functions as a system of unregulated and coercive labor, which worsens the effects of criminal justice debt and displaces paid jobs.

Among other discoveries, the report finds:

  • Over 100,000 people in LA County register to perform mandated community service each year.  Because they are classified as volunteers, workers do not receive wages or labor protections from safety hazards, discrimination, or harassment.
  • Workers face widespread barriers to completing their community service.  Over two thirds of people from criminal court and about two in five from traffic court did not complete their hours in time.  Their inability to finish often led to penalties that court-ordered community service was established to avoid.
  • Community service annually supplants approximately 4,900 jobs in LA County, replacing 1,800 positions in the government sector alone.

Report authors recommend rolling back the threats of jail and court debt that force people into community service; expanding alternative sanctions that do not rely on forced, extractive labor; and transforming punitive mandatory community service into economic opportunity through paying jobs.

October 17, 2019 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Monday, August 26, 2019

Shaming and handwriting requirements in sentencing for offenders who falsely claimed to be veterans

As reported in this AP piece, headlined "Montana Men Get Writing Assignment for False Military Claims," a local judge in Montana created a notable set of additional requirements in the sentencing of two defendants who sought the wrong path to leniency.  Here are the details:

Two Montana men who were sentenced to prison for violating the terms of the probation in separate crimes won't be eligible for parole until they complete a writing assignment given because they falsely claimed to have served in the military to have their cases moved to a Veterans Court.

Cascade County District Judge Greg Pinski sentenced Ryan Patrick Morris, 28, and Troy Allan Nelson, 33, on Friday. Morris got 10 years in prison for violating the terms of his probation for felony burglary, while Nelson got five years on a drug possession conviction. Pinski suspended three years of each defendant's sentence.

Before they can be eligible for parole, Pinski ordered both men to hand write the names of all 6,756 Americans killed in Iraq and Afghanistan; write out the obituaries of the 40 Montanans killed in Iraq and Afghanistan and send hand-written letters of apology to several veterans groups identifying themselves as having lied about military service to receive help and possibly a lesser sentence through a Veterans Court....

Morris claimed in 2016 he did seven combat tours in Iraq and Afghanistan, had PTSD and had his hip replaced after being injured by an improvised explosive device. He was sentenced to perform 441 hours of community service with a veteran's organization — one for each Montanan killed in combat since the Korean War. Court records said he only completed 10 hours.

Nelson managed to get himself enrolled in the Veterans Treatment Court before it was determined he hadn't served in the military, the Great Falls Tribune reported. Once released from prison, they must perform 441 hours of community service.

Pinski also ordered that during the suspended portions of the sentences the defendants must stand at the Montana Veterans Memorial in Great Falls for eight hours on each Memorial Day and Veterans Day wearing a placard that says: "I am a liar. I am not a veteran. I stole valor. I have dishonored all veterans."

Attorneys for both men objected to the placard condition.... Pinski said he was punishing the men for lying to the court. He also cited Montana Supreme Court rulings that give him discretion to take the stolen valor into account and others that upheld the placard requirements.

August 26, 2019 in Criminal Sentences Alternatives, Reentry and community supervision | Permalink | Comments (0)

Sunday, August 18, 2019

North Carolina Supreme Court holds mandatory lifetime GPS monitoring for some sex offenders violates Fourth Amendment

Four+ years ago as noted in this post, the US Supreme Court issued a short per curiam summary reversals in Grady v. North Carolina, No. 14-593 (S. Ct. March 30, 2015) (available here), in which the Court clarified and confirmed that the Fourth Amendment is applicable to sex offender monitoring.  That case was remanded back to the state courts, and late last week there was a major ruling by the Supreme Court of North Carolina in North Carolina v. Grady, No. 179A14-3 (N.C. Aug 16, 2019) (available here).  This split ruling establishes that persons other than Torrey Grady will benefit from the application of the Fourth Amendment in this setting.  Here is part of the start of the majority opinion (authored by Justice Earls) in this latest version of Grady:

The United States Supreme Court has determined that North Carolina’s satellite-based monitoring (SBM) of sex offenders, which involves attaching an ankle monitor “to a person’s body, without consent, for the purpose of tracking that individual’s movements,” constitutes a search within the meaning of the Fourth Amendment.  Grady v. North Carolina, 135 S. Ct. 1368, 1370 (2015) (per curiam). The Supreme Court remanded the case for an examination of “whether the State’s monitoring program is reasonable — when properly viewed as a search.” Id. at 1371....

In accordance with this decision, this case was ultimately remanded to the superior court, which entered an order determining the SBM program to be constitutional.  The Court of Appeals reversed, but only as to Mr. Grady individually.  We conclude that the Court of Appeals erroneously limited its holding to the constitutionality of the program as applied only to Mr. Grady, when our analysis of the reasonableness of the search applies equally to anyone in Mr. Grady’s circumstances.  Cf. Graham v. Florida, 560 U.S. 48, 82 (2010) (holding that state statutes mandating a sentence of life imprisonment without the possibility of parole are unconstitutional as applied to a specific group, namely juveniles who did not commit homicide).

In North Carolina, “SBM’s enrollment population consists of (1) offenders on parole or probation who are subject to State supervision, (2) unsupervised offenders who remain under SBM by court order for a designated number of months or years, and (3) unsupervised offenders subject to SBM for life, who are also known as ‘lifetime trackers.’ ” State v. Bowditch, 364 N.C. 335, 338, 700 S.E.2d 1, 3 (2010).  Mr. Grady is in the third of these categories in that he is subject to SBM for life and is unsupervised by the State through probation, parole, or post-release supervision.  Additionally, Mr. Grady is a “recidivist,” which makes lifetime SBM mandatory as to him without any individualized determination of the reasonableness of this search.  Because we conclude that the relevant portions of N.C.G.S. §§ 14-208.40A(c) and 14- 208.40B(c) are unconstitutional as applied to all individuals who, like Mr. Grady, are in the third Bowditch category and who are subject to mandatory lifetime SBM based solely on their status as a “recidivist,” we modify and affirm the opinion of the Court of Appeals.

And here is a paragraph from the start of the dissenting opinion authored by Justice Newby:

Using the remand as an opportunity to make a broad policy statement, the majority, though saying it addresses only one statutory classification, recidivist, applies an unbridled analysis which understates the crimes, overstates repeat sex offenders’ legitimate expectations of privacy, and minimizes the need to protect society from this limited class of dangerous sex offenders.  The majority’s sweeping opinion could be used to strike down every category of lifetime monitoring under the SBM statute.

August 18, 2019 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sex Offender Sentencing, Technocorrections, Who Sentences | Permalink | Comments (1)

Sunday, July 21, 2019

"Predictable Punishments"

The title of this post is the title of this new paper authored by Brian Galle and Murat Mungan now on SSRN.  Here is its abstract:

Economic analyses of both crime and regulation writ large suggest that the subjective cost or value of incentives is critical to their effectiveness.  But reliable information about subjective valuation is scarce, as those who are punished have little reason to report honestly.  Modern “big data” techniques promise to overcome this information shortfall, but perhaps at the cost of individual privacy and the autonomy that privacy’s shield provides.

This Article argues that regulators can and should instead rely on methods that remain accurate even in the face of limited information.  Building on a formal model we prove elsewhere, we show that variability in a defendant's subjective costs of punishment should be a key consideration in any incentive system, whether it be criminal law or otherwise. Our model suggests that this variability can be mitigated with some familiar and well-tested tools.  For instance, in some situations ex ante taxes on behavior that creates a risk of harm can be preferable to ex post punitive regimes, such as the criminal law, that target primarily harms that actually arise.

Because of what we show to be the centrality of variation in subjective costs, we also argue that long-standing approaches to criminal theory and practice should be reconsidered. For instance, economic theory strongly prefers fines over other forms of punishment. We argue that this claim is typically right — indeed, it is understated — when applied to firms. But fines can be the wrong choice for incentivizing most humans, while ex ante taxes are a promising alternative.  We also show that this same analysis counsels that, if prison is the most viable punishment available, it can be more efficient to make prisons safer and less alienating.

July 21, 2019 in Criminal Sentences Alternatives, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Sunday, June 16, 2019

Alaska Supreme Court finds due process flaw in state's sex offender registry scheme

Last Friday, the Alaska Supreme Court in Doe v. Alaska Department of Public Safety, No. 7375  (Alaska June 14, 2019) (available here) decided that part of its state’s Sexual Offender Registration Act violates due process.  Here is how the majority opinion starts and concludes:

&This appeal presentstwo questions concerning theAlaska SexualOffender Registration Act (ASORA). The first is whether ASORA’s registration requirements may be imposed on sex offenders who have moved to the state of Alaska after committing sex offenses elsewhere. The second iswhetherASORAviolates due process by requiring all sex offenders to register without providing a procedure for them to establish that they do not represent a threat to the public. We conclude that ASORA’s registration requirements can constitutionally be applied to out-of-state offenders. We also conclude that ASORA violates due process, but its defect may be cured by providing a procedure for offenders to establish their non-dangerousness....

The superior court correctly concluded that Doe must register under ASORA. ASORA has effects that are both punitive and regulatory in nature. The former prevent retroactive application of the act under the ex post facto clause of the Alaska Constitution,but they do not preclude imposing registration duties on out-of-state offenders who are present in the state.

The superior court also correctly recognized that registration may seriously affect Doe’s liberty interests. But the court did not strike a proper balance between Doe’s liberty interests and ASORA’s public safety purposes when it concluded that ASORA may be applied to Doe without affording him the right to a hearing to show that he does not pose a risk to the public sufficient to require continued registration. Doe’s affected liberty interests are fundamental and thus protected from infringement by state action except under a narrowly drawn statute reasonably designed to achieve a compelling state interest. If Doe can show at a hearing that he does not pose a risk requiring registration, then there is no compelling reason requiring him to register, and the fact that ASORA does not provide for such a hearing means that the statute is unnecessarily broad.

The flaw in ASORA identified in this case is that it does not provide Doe with an opportunity to be heard. This can best be cured by providing him with such an opportunity.

June 16, 2019 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (3)

Thursday, June 13, 2019

More on the Rewriting the Sentence Summit

In this post and this post, I flagged this great event, titled "Rewriting the Sentence Summit on Alternatives to Incarceration," taking place next week in New York City hosted by Columbia University and The Aleph Institute at Columbia Law School. Today, Hanna Liebman Dershowitz has this new piece in the New York Law Journal about the event and related work under the headline "Rewriting the Sentence Means Choosing New Words."   Here is an excerpt:

Next week, hundreds of key stakeholders in our criminal legal system are gathering at The Aleph Institute’s Rewriting the Sentence summit on alternatives to incarceration at Columbia Law School. Rewriting the Sentence is part of Aleph’s multi-pronged strategic initiative to drive change in our system of punishment away from the reflexive and harsh overuse of incarceration.

These projects are shining a light on the vast array of innovative alternatives to incarceration springing up all over the country, and bridging gaps in knowledge and research about what are best practices and how to understand the culture shift that is happening. The summit will bring together the very people who make decisions each day that impact the lives of the millions of people who pass through our criminal justice system each year and reexamine the tools available to hold people accountable so that prison is no longer considered the main one. The summit will advance the conversation around how to define and nudge the culture shift already happening in this arena.

Aleph is formally announcing at the summit the establishment of the Center for Fair Sentencing, which will host a digital portal and maintain a clearinghouse on alternatives to incarceration.  This clearinghouse will bind together the community of stakeholders exploring or exemplifying the best practices in alternative programs, providing data and analysis; lift up examples of programs using data-informed approaches and best practices; publish turnkey guides, such as one for establishing alternative programs; proffer policy white papers and reports; and advocate for expansion of the use of non-custodial approaches.

As America’s criminal justice system continues to shift away from an unthinkingly harsh mindset, other terms belong on the rebranding block too, such as “alternatives to incarceration” and “alternative sentencing.”  These phrases lock us into the lock-’em-up mentality we so badly need to escape. What we really should be thinking of is alternatives to punishment, not incarceration.

Prior related posts:

June 13, 2019 in Criminal Sentences Alternatives, Who Sentences | Permalink | Comments (0)

US Commission on Civil Rights releases big report on "Collateral Consequences: The Crossroads of Punishment, Redemption and the Effects on Communities"

Download (29)The US Commission on Civil Rights has today released this huge new report titled "Collateral Consequences: The Crossroads of Punishment, Redemption and the Effects on Communities."  The report runs over 150 pages and provide a comprehensive modern accounting of collateral consequences along with reform recommendations.  The introductory letter from the Commission Chair at the outset of the report provide this summary:

This report provides an overview of the relevant data and arguments for and against the imposition of collateral consequences on people with criminal records.  Each year, federal and state prisons release more than 620,000 people to return to their communities.  While these individuals have often completely exited criminal supervision (for example, through a prison sentence or probation), individuals with criminal records still face potentially thousands of collateral consequences upon reentering society.  These collateral consequences are sanctions, restrictions, or disqualifications that attach to a person because of the person’s criminal history.  For example, individuals with criminal histories can face barriers to voting, jury service, holding public office, securing employment, obtaining housing, receiving public assistance, owning a firearm, getting a driver’s license, qualifying for financial aid and college admission, qualifying for military service, and maintaining legal status as an immigrant.  The reach of each collateral consequence extends past people with criminal records to affect families and communities.

The Commission majority (six Commissioners in favor, one Commissioner in opposition) approved key findings including the following: Collateral consequences exacerbate punishment beyond the criminal conviction after an individual completes the court-imposed sentence.  Valid public safety bases support some collateral consequences, such as limitations on working with children for people convicted of particular dangerous crimes.  Many collateral consequences, however, are unrelated either to the underlying crime for which a person has been convicted or to a public safety purpose. When the collateral consequences are unrelated in this way, their imposition generally negatively affects public safety and the public good.

Evidence shows harsh collateral consequences unrelated to public safety increase recidivism by limiting or by completely barring formerly incarcerated persons’ access to personal and family support.  In addition, the general public, attorneys, and the courts often lack knowledge of what the totality of the collateral consequences are in their jurisdiction, how long they last, and whether they are discretionary or mandatory, or even if they are relevant to public safety or merely an extended punishment beyond a criminal sentence.  This absence of public and judicial awareness of collateral consequences of conviction undermines any deterrent effect that might flow from attaching such consequences, separate and apart from the punishment itself, to criminal convictions.  The processes people must undertake to restore rights, for example through applications for pardon or for judicial record sealing, are often complicated, opaque, and difficult to access.

The Commission majority voted for key recommendations, including the following: Collateral consequences should be tailored to serve public safety.  Policymakers should avoid punitive mandatory consequences that do not serve public safety, bear no rational relationship to the offense committed, and impede people convicted of crimes from safely reentering and becoming contributing members of society.  Jurisdictions that impose collateral consequences should periodically review the consequences imposed by law or regulation to evaluate whether they are necessary to protect public safety and if they are related to the underlying offenses.

The Commission majority specifically calls on Congress to limit discretion of public housing providers to prevent them from categorically barring people with criminal convictions from access to public housing; lift restrictions on access to student loans based on criminal convictions, except for convictions related to financial fraud; eliminate restrictions on TANF and SNAP benefits based on criminal convictions; and require federal courts to give comprehensive notice of federal restrictions on individuals’ rights before guilty plea entry, upon conviction, and upon release from incarceration.

June 13, 2019 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Tuesday, June 11, 2019

Alabama enacts chemical castration mandate for sex offenders with child victims

As reported in this local article, Alabama "Gov. Kay Ivey [yesterday] signed into law a bill to require sex offenders whose victims are younger than 13 to undergo 'chemical castration treatment' as a condition of parole." Here are the details:

The treatment consists of taking a medication to suppress or block the production of testosterone.

The bill was sponsored by Rep. Steve Hurst, R-Munford, and passed on May 30, the next-to-last day of the legislative session. Hurst had sponsored similar bills for more than a decade and said his intention has always been to stop sexual abuse of children.

“I’m very serious,” Hurst said.  “Not only did I want it to pass, I want to follow it on through to the future where we can try to improve it.  One of the ultimate goals that I want to do is for us to track it and to make sure what medication works for what individuals.”

Hurst said he’s heard from many victims of sexual abuse supporting the effort.  “It’s amazing how many phone calls and how many emails I’ve gotten,” Hurst said.  “People not just in the state of Alabama but all over the world, things they went through.”

Other states have passed similar laws, including California and Florida in the 1990s.

The chemical castration law says sex offenders whose victims were younger than 13 will have to take “medroxyprogesterone acetate treatment or its chemical equivalent, that, among other things, reduces, inhibits, or blocks the production of testosterone, hormones, or other chemicals in a person’s body.”

The law requires the treatment to begin at least one month before a parolee is released.  The parolee is required to pay for the treatment unless a court determines he cannot. The Alabama Department of Public Health will administer the treatments.

Randall Marshall, executive director of the ALCU of Alabama, said the chemical castration treatment has been rarely used in other states that have authorized it through law. Marshall thinks it likely violates the ban on cruel and unusual punishment.  “It’s not clear that this actually has any effect and whether it’s even medically proven,” Marshall said. “When the state starts experimenting on people, I think it runs afoul of the Constitution.”

Hurst said children who are victims of child abuse are affected for the rest of their lives and said those who abuse children should face lifelong consequences. "What’s more inhumane than molesting a small, infant child?' Hurst asked.

Hurst said he has been haunted by the issue since he read an account from a foster care organization about an infant child being molested.  His legislation initially called for surgical castration.

Sen Cam Ward, R-Alabaster, who handled Hurst’s bill in the Senate, said the law will apply to a small number of offenders because many who molest children won’t be considered for parole.  He believes the treatments will work for those who are.  “I think it’s a good law,” Ward said.  “I think it’s a good deterrent.”

A search of this blog's archives reveals that chemical (or physical) castration of sex offenders is often discussed, but not often utilized, in both the United States and around the world.  But there historically has been little reliable evidence as to whether this novel punishment "works" to reduce recidivism.  It will be interesting to see if this new law actually ends up being applied and well studied in Alabama, though I suspect litigation and other administrative matters may keep it from being used with regularity.

Some of many prior related posts:

June 11, 2019 in Criminal Sentences Alternatives, Sex Offender Sentencing, Who Sentences | Permalink | Comments (3)

Wednesday, June 05, 2019

Spotlighting the "modern-day gulags" that hold sex offenders indefinitely in "civil commitment"

A helpful reader made sure I did not miss this new extended Washington Spectator piece headlined "Modern-Day Gulags In the Golden State."  I recommend the full piece, which gets started this way:  

Back in 1997, the Supreme Court ruled that the practice known as civil commitment was legal.  This meant that 20 states — which had passed laws permitting the ongoing incarceration of sex offenders — could continue to keep the men confined even after they completed their prison terms.  (See “Sex Crimes and Criminal Justice,” from the May 2018 issue of The Washington Spectator, available here.)

All it took (and still takes) is for two psychologists to claim the men might commit a new crime and a judge to say their cases can move forward.  They are then labeled sexually violent predators (SVPs) and reincarcerated in prisonlike facilities until new trials are held — supposedly to determine if they will be civilly committed or released.  The result? Some men have been waiting for their day in court for 15 to 20 years. In the meantime, many have died.

No matter that the men already served their prison time.  Or that psychologists, psychiatrists and lawyers I interviewed insist that very few should be confined — that instead, the vast majority, many of whom are elderly or ill, should be let out.

Eric Janus, former president and dean of Mitchell Hamline Law School in St. Paul, Minn., says that continuing to incarcerate the men to comfort fearful constituents doesn’t make the public safer.  The bottom line?  “I’ve never seen numbers that show there are fewer sex offenses or re-offenses in the 20 states that have the SVP laws than in the other 30 states that don’t,” Janus says.

Then why are roughly 2,500 men still stashed away across the country?  Locking up sex offenders is always good politics, but it is also extraordinarily profitable.  And since California has the biggest budget and locks up the biggest number — three times the next three states’ combined — the Golden State offers the biggest boondoggle to explore.

To document a system awash in double-talk and dollars, I interviewed 45 lawyers, psychologists, psychiatric technicians, rehabilitation therapists, nurses, journalists, prison reform advocates and civilly committed men over eight months. Nearly all feared retaliation and asked not to be named.

As the first paragraph above indicates, this is the second piece in a series, and folks should be sure to also check out this first piece "Sex Crimes and Criminal Justice."

June 5, 2019 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (1)

Monday, May 27, 2019

Three years after Michigan sex offender law deemed punitive and unconstitutional for retroactive application, law's application and revision still uncertain

This recent local article, (imperfectly) headlined "Michigan lawmakers ordered to revise the Sex Offender Registry Act," highlights persistent challenges in the implementation of the Sixth Circuit's big 2016 ruling in Does v. Snyder finding constitutionally problematic the retroactive application of Michigan's severe sex offender laws.  Here are the details, with links from the original:

A U.S. district court judge is giving Michigan lawmakers 90 days to change the state's sex offender registry law, almost three years after it was first ruled unconstitutional by federal appeals court.   U.S. District Judge Robert H. Cleland issued an order that the law must be changed on Thursday. 

The ruling stems from an August 2016 decision by the U.S. 6th Circuit Court of Appeals in Cincinnati which found that Michigan's Sex Offender Registry Act was unconstitutional.

Under Michigan's law:

  • Offenders have been prohibited from living, working or even standing within 1,000 feet of a school.
  • They must immediately register email address or vehicles, plus report to the police as often as four times a year.
  • The rules currently apply to all offenders on the registry — even if they've gone decades without committing and crimes. 

The appeals court found the law in violation of constitutional protections against increasing penalties for a crime after its commission and adjudication.  The state appealed to the U.S. Supreme Court, which declined to hear the case — effectively upholding the 6th Circuit ruling. 

But the state has kept the law in place. It argued that the rulings only applied to the specific plaintiffs who brought them — because the appeals court decision came in civil cases instead of class-action lawsuits.  In essence, whether or not offenders needed to completely comply with the act depended on if they'd been able to successfully plead for their individual case in court.

The ACLU, the University of Michigan Clinical Law Program and the Oliver Law Group filed a class-action lawsuit last June that asked that the appeals court to apply the ruling to all Michigan registrants....  In a news release, the ACLU of Michigan said research shows sexual violence and the harm it causes are effectively reduced by prevention programs.  “The Legislature now has both the opportunity and the obligation to use evidence-based research to get this right and provide truly effective tools that enable law enforcement to carry out their work," Shelli Weisberg, ACLU Political Director said in a statement.

Sen. Peter J. Lucido (R-Shelby Township), chairman of the Judiciary and Public Safety Committee told the Free Press discussions with the state police, as well as the ACLU of Michigan have been ongoing, and he sees this as an opportunity to take another look at whether or not SORA is doing the job it was intended to do....

Attorney General Dana Nessel echoed these sentiments in a statement shared with the Free Press Friday afternoon.  “For months now many individuals have been offering input into possible revisions to Michigan’s SORA.  That valuable work is now on a timetable.  In my view, these revisions are long overdue and will bring justice to many who have suffered significant burdens imposed by the obligations and requirements of this bloated registration scheme, which is out of touch with practical ramifications, with the needs of law enforcement, and with a more reasoned understanding of recidivism," Nessel said. 

Clicking through to the federal court order reveals that the district judge has not ordered the Michigan legislature to do anything, but rather the on-going implementation litigation has been put on hold for 90 days because the "parties believe that the Michigan Legislature should be given a further opportunity to revise the statute before this Court addresses the Plaintiffs’ request for injunctive relief on the ex post facto claim, or the parties litigate the other claims."  

Some prior related posts:

May 27, 2019 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences | Permalink | Comments (1)

Monday, May 20, 2019

Exciting agenda for "Rewriting the Sentence Summit on Alternatives to Incarceration"

In this post a few weeks ago, I flagged this great event, titled ""Rewriting the Sentence Summit on Alternatives to Incarceration," taking place next month in New York City hosted by Columbia University and The Aleph Institute at Columbia Law School.  In my prior post, I spotlighted the many great speakers scheduled to be at the event (as detailed at this link), and noted that the event website provides this overview

I now see that this link provides the detailed schedule for all the panels, and I think sentencing fans will find interesting and important every one of the planned panels.  Here are just a few panel titles from the detailed agenda to whet appetites (click through to see all the big names under each panel title):

A New Wave of Prosecutorial Thinking: Views of Recently Elected District Attorneys

A Federal Legislative Look: The First Step Act, and the Next Steps

Risk Assessment: A Feature or a Bug? Perspectives on A Complex Debate

Sentencing Second Chances: Addressing Excessive Sentencing With Escape Valves

The Role of Mercy and Dignity in Criminal Justice: From Restoration to Clemency

May 20, 2019 in Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Sunday, May 19, 2019

Two great new policy briefs from Right on Crime discussing best practices for parole and probation

Marc Levin, who serves as Vice President for Right on Crime, has two great new "Policy Perspective" briefs on parole and probation systems. Below are the titles, links and "Key Points" from the start of both great documents:

Ten Tips for Policymakers for Parole

Key Points

• The criteria for deciding who is paroled should be objective and focused on reducing risks to public safety going forward.

• Parole boards should possess a diverse range of relevant areas of expertise and provide opportunities for meaningful participation by parole candidates and others with an interest in the outcome.

• Parole supervision and reentry should emphasize removing barriers to employment, incentives for performance, quality interactions between parole officers and those they supervise, and avenues for community-based organizations to assist people coming out of prison.

Ten Tips for Policymakers for Improving Probation

Key Points

• Probation can be an alternative or gateway to incarceration.

• Probation should be right-sized to serve only those individuals who require supervision for only the limited time period that their assessment and conduct indicate a continued need for supervision.

• Incentives should drive probation policy, both for agencies and those they supervise.

May 19, 2019 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (0)

Wednesday, May 15, 2019

An illuminating study highlighting bright ways to deter and prevent crime other than through prison punishments

Some of the (shrinking?) fans of incarceration, if pressed about the utilitarian crime-control value of this costly form of punishment, can sometimes be heard to say that even if prison does not effectively deter or rehabilitate offenders, at least it serves to incapacitate and prevent repeat offenses.  One important response to such a claim is that prisoners can and do still commit crimes in prison.  But an even more important and satisfying response is that monies used to imprison might often be much better used on other government activities that will better deter and prevent crime, and that kind of response is supported by this interesting new National Bureau of Economic Research Working Paper.  The paper, titled "Reducing Crime Through Environmental Design: Evidence from a Randomized Experiment of Street Lighting in New York City," is authored by Aaron Chalfin, Benjamin Hansen, Jason Lerner and Lucie Parker, and here is its abstract:

This paper offers experimental evidence that crime can be successfully reduced by changing the situational environment that potential victims and offenders face.  We focus on a ubiquitous but surprisingly understudied feature of the urban landscape — street lighting — and report the first experimental evidence on the effect of street lighting on crime. Through a unique public partnership in New York City, temporary streetlights were randomly allocated to public housing developments from March through August 2016.  We find evidence that communities that were assigned more lighting experienced sizable reductions in crime.  After accounting for potential spatial spillovers, we find that the provision of street lights led, at a minimum, to a 36 percent reduction in nighttime outdoor index crimes.

May 15, 2019 in Criminal Sentences Alternatives, Purposes of Punishment and Sentencing | Permalink | Comments (2)

Friday, May 10, 2019

Split Eighth Circuit panel explores lifetime supervised release conditions for child porn offender

A helpful reader made sure I did not miss an Eighth Circuit panel's work today in US v. Carson, No. 17-3589 (8th Cir. May 10, 2019) (available here). Like many federal sentencing cases, there are lots of small stories wrapped within the numbing reality of an offender with an affinity for child porn and teenage girls receiving mass punishment: e.g., the defendant here got "only" 20 years in prison when his guideline range called for 30 years; even though facing the real possibility of imprisonment until nearly 2045, for some reason "Carson did not submit his own sentencing memorandum"; counsel at sentencing did not object to broad conditions of lifetime supervised release, so they get reviewed only for plain error.

The heart of the legal dispute on appeal is defendant's claim that sentencing court should have had to provide a distinct analysis and justifications for his special conditions of supervised release, one of which included social media restrictions seemingly comparable to what the Supreme Court stuck down as unconstitutional in Packingham v. North Carolina. Here is a portion of the majority's rejection of the claims on appeal:

We next turn to Carson’s argument that Special Condition 16 (the social media restriction) “suffers the same flaws as the North Carolina statute held to be unconstitutional in Packingham.”  The Supreme Court in Packingham considered the constitutionality of a statute prohibiting registered sex offenders from “access[ing] a commercial social networking Web site where the sex offender knows that the site permits minor children to become members” or from “creat[ing] or maintain[ing] personal Web pages” on such sites.  Packingham, 137 S. Ct. at 1733 (quoting N.C. Gen. Stat. Ann. § 14-202.5(a), (e)).  The Supreme Court held the statute burdened substantially more speech than necessary to further the government’s interests in protecting minors from sexual abuse.  Id. at 1737–38.  The Court reasoned that “to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights,” given the importance of social media for accessing information and communicating with others. Id. at 1737.  Carson argues his court-imposed inability to maintain or create a user account on any social media site falls squarely under the holding of Packingham.

We disagree.  Several of our sister circuits have rejected a similar argument in challenges to supervised release conditions forbidding access to the internet — and effectively to social media sites — without prior approval or monitoring by a court or probation officer.  See United States v. Antczak, 753 F. App’x. 705, 715 (11th Cir. 2018) (unpublished); United States v. Halverson, 897 F.3d 645, 657–58 (5th Cir. 2018); United States v. Browder, 866 F.3d 504, 511 n.26 (2d Cir. 2017); United States v. Rock, 863 F.3d 827, 831 (D.C. Cir. 2017).  These courts have noted Packingham invalidated only a post-custodial restriction and expressed concern that the statute applied even to “persons who have already served their sentence.”  Halverson, 897 F.3d at 658 (quoting Packingham, 137 S. Ct. at 1737).  Because supervised release is part of a defendant’s sentence, Packingham does not render a district court’s restriction on access to the internet during a term of supervised release plain error.  See id.; Rock, 863 F.3d at 831.  We find this reasoning applies with equal force here.  Thus, even assuming the district court’s prohibition on creating or maintaining a social media profile implicates the same First Amendment interests as a restriction on accessing social media altogether, the district court did not commit plain error by imposing Special Condition 16.

And here is the closing paragraph of Judge Kelly's dissent:

I do not minimize the seriousness of Carson’s crimes.  For those he will serve a twenty-year prison term followed by a lengthy term of supervised release.  I also recognize the need to monitor Carson’s conduct upon release.  But Carson was thirty- three at the time of his arrest, and his lifetime term of supervised release could very well last decades. We can only imagine the universe of internet-reliant electronic devices that will pervade everyday life by then.  The length and conditions of Carson’s supervised release may well be justified, but such punishment deserves, at minimum, some reasoned explanation from the sentencing court.  Accordingly, I respectfully dissent.

May 10, 2019 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing, Who Sentences | Permalink | Comments (0)

Wednesday, May 08, 2019

"Rewriting the Sentence Summit on Alternatives to Incarceration"

The title of this post is the title of this great event taking place next month in New York City hosted By Columbia University and The Aleph Institute at Columbia Law School.  Though I have played a small role in helping to plan the event, some folks much more talented than me have arranged for an extraordinary array of great speakers to be at the event (as detailed at this link). The event website provides this overview:

What is the Rewriting the Sentence Summit on Alternatives to Incarceration?

This is a high-level summit that aims to highlight the range of alternative sentencing policies and programs that are currently operating in the U.S. and abroad, and look more deeply at their effectiveness and functional requirements.  It will include a wide range of perspectives on these issues.

Who will participate in the summit?

The summit will bring together an unprecedented number of current and former leaders and senior government officials who have served on the front lines of day-to-day operations in the criminal justice system, including law enforcement, government, judiciary, defense, forensic social workers and psychologists, and nonprofits, as well as formerly incarcerated people, victims and advocacy groups.

What are the summit’s objectives?

Beyond education, The Rewriting the Sentence Summit on Alternatives to Incarceration will use plenary, breakout and interactive sessions to generate substantive dialogue between all delegates and identify key priorities for:

  • Expanding the use of effective alternative sentencing programs while enhancing public safety, including the mechanisms of discretion (police, prosecutorial and judicial) and legislative reforms;
  • Addressing public safety concerns over its broadened use and practical barriers to expansion and launching effective new programs in new jurisdictions, including operational limitations, program evaluation and public education;
  • NGOs that can help to support broader application of effective alternative sentencing, e.g., ubiquity of access and other measures and peripheral programs to help ensure successful reentry.

What sets the summit apart from other events?

The number of high-level participants; the balance between reformers and healthy skeptics; the interactive session; and the focus on making connections and producing outcomes that include the development of a database of best practices and an informal network for future coordination and support.

May 8, 2019 in Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (3)

Monday, May 06, 2019

Urging Prez candidates to urge bold criminal justice changes looking beyond incarceration levels

Sara Wakefield and Kristin Turney have this notable new Hill commentary headlined "In 2020, we need bold ideas for criminal justice reform too."  Here are excerpts:

As the 2020 election quickly approaches, Democratic candidates are presenting bold ideas about a wide variety of issues including climate change, inequality, national paid leave, filibuster reform, student loans, and Medicare for All. Few ideas are too ambitious for the base, even though many would require major structural changes to American institutions and civic life.

Then, there’s the issue of justice. Criminal justice reform and mass incarceration get talked about, correctly, as racial justice issues that need to be addressed, but no one has proposed radical changes to how we approach crime and punishment in America. It’s time for 2020 candidates to think as boldly about criminal justice as they are about health care and climate change.

Sen. Cory Booker’s (D-N.J.) “Next Step Act” currently comes closest to a bold proposal, taking on police officer training, the conditions of confinement, and expungement procedures. Yet, even this proposal includes the sentencing reforms and reentry assistance proposals we’re used to seeing. Our collective focus, and the focus of popular criminal justice reform laws like the FIRST STEP Act, remains on a late stage of criminal justice contact: incarceration.

Prison incarceration is, of course, a consequential event, but many more millions of people engage with our inefficient and repressive criminal justice system — through arrests, misdemeanor convictions, parole and probation, the bail industry, and the accumulation of fines and fees. People don’t have to be sentenced to prison to have life-altering interactions with the criminal justice system, and our leaders need to think about these experiences too. In 2016, for example, 70 percent of the roughly 646,000 Americans in local jails on any given day had not been convicted of anything, largely remaining in jail due to their inability to make bail or because they violated the conditions of probation and parole....

Presidential candidates should also consider how much our criminal justice system impacts lives after someone has served time. In 2016, almost 7 million people were under some form of correctional supervision, such as parole or probation. The most common reentry proposals are aimed at improving the labor market prospects of the formerly incarcerated. We applaud these efforts, but people who lack health care and a stable home may struggle to find and keep a job. Discussions of health care and housing policy that ignore the formerly incarcerated ignore a population with the most significant health care problems and housing instability in the country....

By focusing on reforming incarceration only, we are obscuring a broader landscape of pain for millions of Americans. To truly begin on a path toward criminal justice reform, we need our leaders to think in terms of new deals, guarantees, and sweeping legislation that could impact more Americans, like they do on climate and health care. The type of country we want to have depends on these decisions.

May 6, 2019 in Campaign 2020 and sentencing issues, Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Tuesday, March 26, 2019

Suffolk County DA produces remarkable new prosecutorial polices memo

Around this time last year, as discussed in this post, Philadelphia DA Larry Krasner made public a remarkable five-page memo setting forth an array of remarkable progressive prosecutorial policies.  This week, Suffolk County DA has produced an even more remarkable statement of policies via this remarkable 66-page document titled simply "The Rachel Rollins Policy Memo." The document is not easily summarized, and is worth a complete read. These excerpts from the first section, titled "A New Lens," provides a feel for some of the particulars that follow:

A dramatic shift in thinking around criminal justice is occurring in the United States. Sweeping advances in data science and public health have revealed that decades of punitive incarceration are not effectively preventing recidivism and promoting public safety. A large number of criminal convictions secured by prosecutors nationally are for drug, property, and public order offenses, which are often driven by economic, mental health, and social needs....

Data show that a carceral approach to low-level, non-violent offenses can do more harm than good. A criminal record often presents barriers to education, future income, housing, and many other necessary assets and supports proven to help people thrive and succeed in society.

As a result, jurisdictions across the country are taking a smarter approach to punishment and accountability. Law enforcement agencies and prosecutors’ offices are collecting and analyzing new and varied sources of data, and they are safely beginning to move all but the most serious offenses away from carceral punishment and its downstream collateral harms.

In place of traditional criminal justice system outcomes such as arrest, detention, prosecution, probation, and incarceration, criminal justice practitioners and policymakers are working in collaboration with community partners to develop and implement innovative, evidence-driven diversionary alternatives that data show are more likely to promote safer and healthier communities....

[Recent data] shows that the Suffolk County District Attorney’s Office can file fewer criminal charges, divert more people who need help into services and treatment, send fewer people to jail and prison, all while improving the health and public safety of Suffolk County residents.  I am pleased to announce, effective immediately, the following official guidelines and policies of the Suffolk County District Attorney’s Office.  These guidelines and policies, as with all of our office’s policies and decisions going forward, will be grounded in science and data, modeled after the best known local and national practices, and will build upon and expand the important work and relationships begun under the leadership of my predecessors

Prior related post:

March 26, 2019 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Tuesday, March 05, 2019

Georgia Supreme Court unanimously declares state's approach to lifetime GPS monitoring for sex offenders violates Fourth Amendment

The Supreme Court of Georgia issued a notable unanimous opinion yesterday in Park v. Georgia, No. S18A1211 (Ga. March 4, 2019) (available here), declaring unconstitutional the state's lifetime GPS monitoring requirement for certain sex offenders. The opinion for the court authored by Chief Justice Melton starts this way:

We granted an interlocutory appeal in this case to address Joseph Park’s facial challenge to the constitutionality of OCGA § 42-1-14, which requires, among other things, that a person who is classified as a sexually dangerous predator – but who is no longer in State custody or on probation or parole – wear and pay for an electronic monitoring device linked to a global positioning satellite system (“GPS monitoring device”) that allows the State to monitor that individual’s location “for the remainder of his or her natural life.” Id. at (e). For the reasons that follow, we conclude that OCGA § 42-1-14(e), on its face, authorizes a patently unreasonable search that runs afoul of the protections afforded by the Fourth Amendment to the United States Constitution, and, as a result, subsection (e) of the statute is unconstitutional to the extent that it does so.

Notably, a concurring opinion by Justice Blackwell seems interested in helping the state legislature find a work around to this ruling. His opinion starts this way:

The General Assembly has determined as a matter of public policy that requiring some sexual offenders to wear electronic monitoring devices linked to a global positioning satellite system promotes public safety, and it enacted OCGA § 42-1-14(e) to put that policy into practice. The Court today decides that subsection (e) is unconstitutional, and I concur fully in that decision, which is driven largely by our obligation to faithfully apply the principles of law set forth by the United States Supreme Court in Grady v. North Carolina, ___ U.S. ___ (135 SCt 1368, 191 LE2d 459) (2015).  I write separately, however, to emphasize that our decision today does not foreclose other means by which the General Assembly might put the same policy into practice.

Our decision rests in significant part on the fact that subsection (e) requires some sexual offenders to submit to electronic monitoring even after they have completed the service of their sentences.  But nothing in our decision today precludes the General Assembly from authorizing life sentences for the worst sexual offenders, and nothing in our decision prevents the General Assembly from requiring a sentencing court in the worst cases to require GPS monitoring as a condition of permitting a sexual offender to serve part of a life sentence on probation.

March 5, 2019 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (0)

Monday, March 04, 2019

Third Circuit panel rules sex offenders subject to registration laws in Pennsylvania are "in custody" for habeas purposes

Last week, a unanimous panel of the Third Circuit issued what seems to be a groundbreaking ruling about habeas jurisdiction. In Piasecki v. Court of Common Pleas, No. 16-4175 (3d Cir. Feb 27, 2019) (available here), the Third Circuit distinguished a variety of contrary rulings from other circuits to hold that a registered sex offender in Pennsylvania is “in custody” for purposes of having jurisdiction to bring a habeas corpus challenge. Here is how the opinion starts and ends:

We are asked to decide whether a habeas corpus petitioner who was subject only to registration requirements under Pennsylvania’s Sex Offender Registration and Notification Act (“SORNA”) when he filed his petition was “in custody pursuant to the judgment of a State Court,” as required for jurisdiction.  We hold that the registration requirements were sufficiently restrictive to constitute custody and that they were imposed pursuant to the state court judgment of sentence.  Accordingly, we will reverse the District Court and remand for further proceedings.....

The writ of habeas corpus “is not now and never has been a static, narrow, formalistic remedy.”  The scope of the writ has grown in accordance with its purpose — to protect individuals against the erosion of their right to be free from wrongful restraints upon their liberty.  SORNA’s registration requirements clearly constitute a restraint upon liberty, a physical restraint not shared by the public generally.  The restraint imposed on Piasecki is a direct consequence of a state court judgment of sentence, and it therefore can support habeas corpus jurisdiction.  For all of the reasons set forth above, the order of the District Court is vacated and the case is remanded for further proceedings consistent with this opinion.

March 4, 2019 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (3)

Tuesday, February 26, 2019

Haymond seemingly to become major Apprendi progeny altering federal supervised release revocations

Though I have not yet had time to read the full transcript of oral argument in United States v. Haymond, which is now available here, reading Amy Howe's argument analysis at SCOTUSblog suggests the tea-leaves are easy to read after the oral argument. The posting is titled "Court poised to rule for challenger in dispute over constitutionality of sex-offender law," and here are snippets:

This morning the Supreme Court heard oral argument in a dispute over the constitutionality of a federal law that requires convicted sex offenders to return to prison for at least five years – and possibly for the rest of their lives – if a judge finds that they have committed certain crimes. The defendant in the case, an Oklahoma man who served time for possessing child pornography and was then sent back to prison after he violated the terms of his supervised release, argues that the law violates his right to have his sentence determined by a jury, rather than a judge, beyond a reasonable doubt. Today the justices seemed overwhelmingly likely to agree with him, even if it was not entirely clear how they will remedy the constitutional violation....

Eric Feigin, an assistant to the U.S. solicitor general, defended the law on behalf of the federal government. But he was quickly interrupted by a skeptical Justice Sonia Sotomayor, who asked him whether there was any other area of the law in which the United States allows a defendant to be sent to prison based on the preponderance-of-the-evidence standard.

Feigin responded that both parole and probation operate in a similar way, but Sotomayor dismissed that analogy as comparing “apples and oranges.” With parole, she stressed, the state gives a benefit by cutting a sentence short. Where do we allow more prison time based on the preponderance of the evidence, she repeated?

Justice Brett Kavanaugh echoed Sotomayor’s thinking toward the end of Feigin’s initial stint at the lectern. When the government revokes an inmate’s parole, Kavanaugh suggested, it is simply denying a benefit. But when the government revokes an individual’s supervised release, he continued, that’s more like a penalty: The government is “adding a chunk of time on.”

Several justices also questioned the government’s contention that a jury was not required to find the facts leading to the conclusion that Haymond had violated the terms of his supervised release and the imposition of the new five-year sentence....

Only Justice Samuel Alito seemed to be squarely on the government’s side, warning that a ruling for Haymond could potentially “bring down the entire supervised release system.” As a result, much of the second half of the oral argument focused less on whether the law was unconstitutional and more on what should happen next.

I am not surprised, but I am still pleased, to learn that there may now be eight Justices prepared to extended Apprendi/Blakely rights to supervised release revocation. Now we wiat to see just how big the ultimate opinion will be (and how loudly Justice Alito will complain about more procedural rights for criminal defendants).

Some prior related posts:

February 26, 2019 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, February 25, 2019

Will Haymond argument generate any haymaker questions as SCOTUS takes up supervised release?

Tomorrow the Supreme Court has a day of sentencing arguments scheduled, as the Justices will from counsel in United States v. Haymond and Mont v. United States.  Here are the questions presented and argument previews via SCOTUSblog:

United States v. Haymond Issue: Whether the U.S. Court of Appeals for the 10th Circuit erred in holding “unconstitutional and unenforceable” the portions of 18 U.S.C. § 3583(k) that required the district court to revoke the respondent’s 10-year term of supervised release, and to impose five years of reimprisonment, following its finding by a preponderance of the evidence that the respondent violated the conditions of his release by knowingly possessing child pornography.

Mont v. United States Issue: Whether a period of supervised release for one offense is tolled under 18 U.S.C. § 3624(e) during a period of pretrial confinement that upon conviction is credited toward a defendant’s term of imprisonment for another offense.

For hard-core sentencing fans, the Haymond case could be the sleeper of the Term because a major ruling on constitutionally required procedures for revocation of supervised release could have profound implications not only for the federal system, but also potentially for some state systems. 

I doubt that oral argument will provide any big indication of just how big a ruling Haymond could produce, but I will be particular eager to see what the newer Justices might have to say about the kind of judicial factfinding that landed Andre Haymond back in prison for a (mandatory) five years after a judge found by only a "preponderance of the evidence" that he had violated the terms of his supervised release.  I think serious originalists should be troubled by the kinds of procedures used to deprive Haymond of his liberty, but the modern tradition of lax procedures at the "back-end" of sentencing systems is considerable.  I am hoping a number of Justices might take big swings with their questions in Haymond, but lately I am thinking I should not be expecting too much from the Justices.

Some prior related posts:

February 25, 2019 in Criminal Sentences Alternatives, Offense Characteristics, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Sunday, February 17, 2019

"On probation until 2053? Sentencing disparities, lack of guidelines get long look at Minnesota Legislature"

The title of this post is the headline of this interesting newspaper article from the North Star State focusing on a part of modern sentencing systems that merit a lot more attention than it usually gets.  Here is how the piece gets started:

Since getting clean, Jennifer Schroeder went on to manage the sober living house that nurtured her after a year in jail.  She became the first in her family to graduate from college and, as an addiction counselor, now helps others struggling with the same demons she had to overcome.

Yet Schroeder’s own past will loom large into her 70s.  The 36-year-old St. Paul resident is on probation until 2053 after being caught with 21 grams of meth during a traffic stop one summer in Wright County.  “It’s hard to transform yourself into a new person when you are still labeled as your old self,” Schroeder said.

The same crime would net a fraction of that sentence in Minneapolis or Duluth, a chasm that underscores the disparate nature of punishment in a state with one of the nation’s highest rates of probation but with no clear guidelines for judges to rely on.

With the backing from top officials at the Department of Corrections, state lawmakers from both parties are now pushing new measures to cap probation sentences in Minnesota at five years.  They are also calling on the state’s Sentencing Guidelines Commission to start issuing recommendations for probation like it has for prison sentencing for nearly 30 years. “We are failing the basic test that those convicted of the same crime should receive similar punishment,” said Rep. Jamie Long, D-Minneapolis, who is sponsoring both bills.

Support for changing the state’s probation laws mirrors the national conversation surrounding criminal justice reform, like the recent First Step Act that focused on federal prison sentencing and earned broad bipartisan support. Those testifying at the State Capitol this week included local representatives from both the liberal American Civil Liberties Union and the conservative Americans for Prosperity.

February 17, 2019 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Thursday, February 07, 2019

"The New Amy, Vicky, and Andy Act: A Positive Step Towards Full Restitution for Child Pornography Victims"

The title of this post is the title of this new article authored by Paul Cassell and James Marsh, which is forthcoming in the February 2019 issue of the Federal Sentencing Reporter.  Here is its abstract:

Providing restitution to victims of child pornography crimes has proven to be a challenge for courts across the country.  Child pornography is often widely disseminated to countless thousands of criminals who have a prurient interest in such materials. While the victims of child pornography crimes often have significant financial losses from the crimes (such as the need for long term psychological counseling), allocating a victim’s losses to any particular criminal defendant is problematic.

Five years ago, the Supreme Court gave its answer on how to resolve this issue with its ruling in Paroline v. United States.  Interpreting a restitution statute enacted by Congress, the Court concluded that in a child pornography prosecution, a restitution award from a particular defendant is only appropriate to the extent that it reflects “the defendant’s relative role in the causal process that underlies the victim’s general losses.”

In the ensuing years, lower courts have struggled to implement this holding.  Just recently, Congress stepped in to ensure that victims will receive appropriate restitution. In November 2018, the Senate and House resolved their differences in how to handle the issue, passing the Amy, Vicky, and Andy Child Pornography Victim Assistance Act of 2018 (or “AVAA” for short).  President Trump signed the legislation into law on December 7, 2018.

In this article, we describe the impact of this important new legislation. We set the stage by describing the need for restitution for child pornography victims, using the story of the lead victim in the Act (“Amy”) as an illustration of why restitution is needed.  We then turn to the problematic legal regime that was created by the Supreme Court’s Paroline decision, noting some of the confusion in the lower courts following the ruling.  Against this backdrop, we then discuss the AVAA, explaining how it will be a useful step forward for victims of these crimes.  One even more important possibility is that the Act could set a precedent for expanding restitution for victims in the future.

February 7, 2019 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Sex Offender Sentencing, Who Sentences | Permalink | Comments (9)

Monday, January 28, 2019

"Are Collateral Consequences Deserved?"

The question in the title of this post is the title of this notable new paper authored by Brian Murray now available via SSRN. Here is its abstract:

While bipartisan passage of the First Step Act and state reforms like it will lead to changes in sentencing and release practices, they do little to combat the collateral consequences that ex-offenders face upon release.  Because collateral consequences involve the state infliction of serious harm on those who have been convicted or simply arrested, their existence requires justification.  Many scholars classify them as punishment, but modern courts generally diverge, deferring to legislative labels that classify them as civil, regulatory measures.  This label avoids having to address existing constitutional and legal constraints on punishment.  This Article argues that although collateral consequences occur outside of the formal boundaries of the criminal system, their roots stem from utilitarian justifications for criminal punishment, such as incapacitation.  Legislative justifications relating to creating and reforming collateral consequences and judicial doctrine confirms that decision-makers are operating on utilitarian terrain while cognizant of functional concerns in the criminal system.  Unfortunately, these philosophical roots inhibit broad reform efforts relating to collateral consequences because public-safety and risk prevention rationales chase utility.  The result is extra punishment run amok and in desperate need of constraints.

This Article pivots to a novel, but perhaps counterintuitive, approach to reforming collateral consequences: subjecting them to the constraints of retributivism by first asking whether they are deserved.  Retributivist constraints, emphasizing dignity and autonomy, blameworthiness, proportionality, a concern for restoration, and the obligations and duties of the authority tasked with inflicting punishment, suggest many collateral consequences are overly punitive and disruptive of social order.  Viewing collateral disabilities in this fashion aligns with earlier Supreme Court precedent and accounts for retributivist constraints that already exist in present day sentencing codes.  Proponents of rolling back collateral consequences should consider how utilizing desert principles as a constraint on punishment can alleviate the effects of collateral consequences on ex-offenders.

January 28, 2019 in Collateral consequences, Criminal Sentences Alternatives, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Friday, January 25, 2019

Timely questions on enduringly important topics via The Crime Report

I have praised and promoted work done over at The Crime Report for many years, and the site remains a daily must-read for criminal justice fans.  And in the last few days, TCR has had two new pieces headlined with two questions that are timely and enduring.  Here are the headlines, links and brief excerpts:

"Can the U.S. Abolish Life Sentences?" (Q&A with Ashley Nellis)

TCR: You write, “Perhaps the most glaring omission of relevant data was the failure of the Bureau of Justice Statistics (BJS), the well-regarded research arm of the Department of Justice, to document the scale of life imprisonment.” Do you think this omission was on purpose or by accident?  And why?

Nellis: I think it’s not on purpose, there just a lack of resources in the research arms.  There’s also a lack of general interest from the public, so there was no incentive to document the expansion of life sentences. We shouldn’t be surprised that there hasn’t been data on the expansion because it goes along with laws and policies of the 1990s.

[The BJS] is not a political entity, but it seems to be. If you pass legislation at federal level that is bound to increase your incarcerated population… you should probably document the impact of those policies.  If you pass mandatory minimums with the elimination of parole, it seems wise to document how many people go to prison because you did that. Once a lot of the public sees the dramatic growth of life sentences— nearly five-fold increase over time — then they ask “why did nobody notice this before?” The answer is because nobody was recording it.

"Do We Really Need Probation and Parole?" (commentary by Vincent Schiraldi): 

Although “mass supervision” on probation or parole has not yet garnered the attention of “mass incarceration,” its impact is no small matter.  There are 4.5 million people under community supervision in America, twice as many as are incarcerated, a figure that amounts to more than the population in half of all U.S. states.  About four in ten people entering America’s prisons and jails each year are under supervision.  Many of those are incarcerated, not for committing new crimes, but for breaking a wide array of supervision rules.

January 25, 2019 in Criminal Sentences Alternatives, Data on sentencing, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (1)