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 (0)

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 (0)

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)

Wednesday, January 23, 2019

Parole and probation reforms now the focus for powerful players

A couple of days ago, Amy Solomon of the Laura and John Arnold Foundation and Jake Horowitz of The Pew Charitable Trusts’ public safety performance project together penned this notable Hill commentary headlined "US needs bold reforms to transform probation and parole." Here are excerpts:

The scale of American incarceration has been in the news recently, with growing bipartisan agreement that this challenge needs to be addressed. Yet a related issue continues to operate below the radar: The number of people on probation or parole supervision in the United States, which has tripled in the past three decades.

Although it might seem counterintuitive, this rapid growth in supervision can serve to increase jail and prison populations — an outcome that should concern policymakers and taxpayers alike. While about half of the nearly 4.5 million people on probation or parole will successfully complete their sentences, onerous supervision requirements can become a tripwire, resulting in incarceration. In 2016, for example, 350,000 people exited supervision by entering a jail or prison — often for violating rules such as failing a drug test or missing a required meeting, rather than for a new criminal offense.

In an effort to transform community supervision and shift the focus from punishing failure to promoting success, the Laura and John Arnold Foundation and The Pew Charitable Trusts recently announced an initiative to work with leading experts on community supervision policy, practitioners at the state and local levels, and advocates and stakeholders such as victims’ family members, to adopt evidence-backed reforms.

Over the past two decades, research has shown that current probation and parole practices often deliver less-than-optimal results. We know, for example, that supervision with a large number of conditions can interfere with an individual’s progress of reintegrating into the community. Some jurisdictions have responded to this research. Since the community supervision population reached its peak in 2007, both the crime rate and the rate of community supervision have gone down in 37 states. Texas and South Carolina, among other states, have had declines in crime and supervision of 20 percent or more.

Yet despite the growing body of evidence that supervision can be counterproductive, too many jurisdictions continue to emphasize surveillance and impose standard, one-size-fits-all rules, rather than utilizing an integrated approach with treatment and conditions tailored to the individual. These rules include frequent in-person reporting requirements, which often conflict with job or family responsibilities, and costly fines and fees that disproportionately affect poor people, impeding their ability to rebuild their lives....

The good news is that many states have adopted policy changes aimed at shrinking the number of people on supervision, reducing revocations for technical violations, and investing in community-based treatment. But there’s a long way to go, and we must help states and supervision agencies adopt even bolder reforms.

A new report by our two organizations shows that a smaller correctional footprint and less crime can go hand-in-hand. Supervision for the 21st century will require that probation and parole agencies boost the public safety value of community corrections. That means addressing areas that support reintegration such as strengthening family ties and connections to the community, improving workforce development, and increasing access to drug treatment, as well as repairing the harm inflicted on victims.

On theme, today come the news that a group of celebrities and business leaders have formed a new organization, the REFORM Alliance, to work on these issues. This NBC News piece, headlined "Meek Mill, Jay-Z headline alliance to reform U.S. parole, probation laws," provides these details:

Sports, entertainment and business leaders announced the launch of an organization aimed at reforming the United States’ criminal justice system. Meek Mill and Jay-Z are among the group of leaders who pledged approximately $50 million to create the Reform Alliance.  Its mission is to drastically reduce the number of people living under unjust parole and probation sentences, “while keeping communities safe by changing laws and public opinion.”

Other founding partners include Philadelphia 76ers co-owner Michael Rubin; Kraft CEO and New England Patriots owner Robert Kraft; Brooklyn Nets co-owner Clara Wu Tsai; Vista Equity Partners founder Robert F. Smith; Galaxy Digital founder Michael E. Novogratz; and Third Point LLC founder Daniel S. Loeb. CNN host and activist Van Jones will serve as CEO.

In an interview with NBC News’ Lester Holt, Mill said he hopes the Reform Alliance will shed light on the issues within the criminal justice system. “This is not us going against the system, this is us trying to fix the system,” the rapper said. “These problems affect America, they affect families, they affect taxpayers. ... I hope we bring real change to help fix the problem.”

January 23, 2019 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (1)

Tuesday, January 08, 2019

Spotlighting criminal-justice debt and its profound impact on the poorest Americans

The New York Times magazine has this lengthy new article about criminal justice debt under this full headline: "How Cities Make Money by Fining the Poor: In many parts of America, like Corinth, Miss., judges are locking up defendants who can’t pay — sometimes for months at a time." I recommend the piece in full, and here is a snippet:

No government agency comprehensively tracks the extent of criminal-justice debt owed by poor defendants, but experts estimate that those fines and fees total tens of billions of dollars.  That number is likely to grow in coming years, and significantly: National Public Radio, in a survey conducted with the Brennan Center for Justice and the National Center for State Courts, found that 48 states increased their civil and criminal court fees from 2010 to 2014.  And because wealthy and middle-class Americans can typically afford either the initial fee or the services of an attorney, it will be the poor who shoulder the bulk of the burden....

In areas hit by recession or falling tax revenue, fines and fees help pay the bills.  (The costs of housing and feeding inmates can be subsidized by the state.)  As the Fines and Fees Justice Center, an advocacy organization based in New York, has documented, financial penalties on the poor are now a leading source of revenue for municipalities around the country.  In Alabama, for example, the Southern Poverty Law Center took up the case of a woman who was jailed for missing a court date related to an unpaid utility bill.  In Oregon, courts have issued hefty fines to the parents of truant schoolchildren. Many counties around the country engage in civil forfeiture, the seizure of vehicles and cash from people suspected (but not necessarily proven in court) of having broken the law.  In Louisiana, pretrial diversion laws empower the police to offer traffic offenders a choice: Pay up quickly, and the ticket won’t go on your record; fight the ticket in court, and you’ll face additional fees.

“What we’ve seen in our research is that the mechanisms vary, depending on the region,” says Joanna Weiss, co-director of the Fines and Fees Justice Center.  “But they have one thing in common: They use the justice system to wring revenue out of the poorest Americans — the people who can afford it the least.”  Aside from taxes, she says, “criminal-justice debt is now a de facto way of funding a lot of American cities.”

The jailing of poor defendants who cannot pay fines — a particularly insidious version of this revenue machine — has been ruled unconstitutional since a trio of Supreme Court cases spanning the 1970s and early 1980s....  Still, decades after those cases were decided, the practice of jailing people who cannot pay persists, not least because Supreme Court decisions do not always make their way to local courts.  “Precedent is one thing,” says Alec Karakatsanis, executive director of Civil Rights Corps, a Washington-based nonprofit.  “The way a law is written is one thing. The way a law is actually experienced by poor people and people of color is another.”...

In 2010, the American Civil Liberties Union detailed evidence of what it calls “modern-day ‘debtors’ prisons’ ” — essentially, courts operating in the same way as Judge Ross’s in Corinth — in Georgia, Michigan, Louisiana, Ohio and Washington State.  “If you spent a few weeks driving from coast to coast, you might not find similar policies in place in every single county,” Sam Brooke, the deputy legal director of the Southern Poverty Law Center’s economic-justice program, told me.  “But every other county? Probably.  This is a massive problem, and it’s not confined to the South.  It’s national.”...

In recent years, the Southern Poverty Law Center and other organizations, including the A.C.L.U. and Karakatsanis’s Civil Rights Corps, have been filing class-action lawsuits against dozens of courts across the South and Midwest and West, arguing that local courts, in jailing indigent defendants, are violating the Supreme Court rulings laid down in Williams, Tate and Bearden.  The lawsuits work: As a settlement is negotiated, a judge typically agrees to stop jailing new inmates for unpaid fines or fees.  “No one wants to admit they’ve knowingly acted in this manner,” says Brooke, who partnered with Karakatsanis on lawsuits in Alabama and filed several elsewhere in the South. “So they tend to settle quickly.” The trouble is locating the offending courts.

January 8, 2019 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (0)

Sunday, December 30, 2018

Highlighting continued work (and optimism) on alternatives to incarceration

I have had the great honor and pleasure for many years now of working with folks at the Aleph Institute, a national nonprofit that works on various criminal justice reform and recidivism reduction efforts. Hanna Liebman Dershowitz, who is director of special projects for the alternative sentencing division of the Aleph Institute, has this new New York Law Journal piece headlined "Our Country Grapples With Deepest Challenges Around Sentencing," discussing work on alternatives to incarceration and an event on the topic in the works for summer 2019.  Here is an excerpt:

The nonprofit I work with, the Aleph Institute, harbors a vision we call “Rewriting the Sentence,” wherein the cultural and political shift that has already taken hold in this country produces a complete reordering of our punishment priorities.  Once this shift is complete, we would view incarceration and other separation from community only as an option among many to be used sparingly, only when needed.

At present, we are such an outlying world incarcerator that we rank with the most heartless regimes on the planet.  It always bears repeating that we are not 5% of the world population and yet are responsible for almost a quarter of the world’s imprisoned population.  Across history, incarceration has not always dominated the punishment landscape — indeed, in Biblical law there is no such punishment as incarceration because of the inhumane collateral damage it wreaks.

We at Aleph think there are often legal and humanitarian reasons for the avoidance of custodial methods of correction at every stage of our system — from bail reform and law enforcement assisted diversion upfront to diversion programs, specialty courts and sentencing advocacy at the disposition stage to clemency, reentry support and compassionate release toward the back.

A system that uses evidence-based tools at each stage can deliver the optimal levels of supervision and services to allow each person to thrive and stay out of trouble.  Ideally — and I truly get that all of this sounds idealistic — we can use freed-up incarceration resources to support healthy communities, understanding that equity and thriving neighborhoods are the best prevention tools for crime.

What Aleph has learned from delivering care and support to thousands of individuals and families in prisons and jails all over the country for decades is that helping people function better is superior to an outmoded and misguided approach that inexorably leads to negative results, especially for the children left behind.

Here’s why I am not idealistic, but actually a pragmatist. If we don’t envision how we want the system to work, we will continue to incarcerate people none of us ever intended to incarcerate and to not know who we are incarcerating in a meaningful way.....

Why do I think I will see a true culture change in my lifetime on alternatives to incarceration too? Because we are already seeing the seeds of the change, to wit: in a recent meeting with the chief of alternatives for a major metropolitan district attorney, I was told that in recent years incoming prosecutors ask whether there are alternatives they can offer to defendants. In a decade, perhaps they will expect them.

So policy wonks and idealists alike, please stay tuned as we seek to rewrite a legacy of sentencing myopia. Aleph is convening criminal justice stakeholders next June at Columbia Law School for the Rewriting the Sentence 2019 Summit, and we will announce significant new initiatives thereafter. For more information, please visit askssummit.com.

December 30, 2018 in Criminal Sentences Alternatives, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (0)

Tuesday, December 18, 2018

Convicted poacher sentenced to watch Bambi (really) ... and imagining other crime and Disney movie pairings

Bambi-860x726A couple of helpful colleagues have already made sure I did not miss this local story of a Missouri sentencing.  The press account is headlined "'Bambi' as punishment?  Sentence in SW Missouri poaching case includes mandated viewings," and here are the details:

Four members of a southwest Missouri family have been caught in a multi-year poaching case where authorities say hundreds of deer were killed illegally. “The deer were trophy bucks taken illegally, mostly at night, for their heads, leaving the bodies of the deer to waste," said Lawrence County Prosecuting Attorney Don Trotter.

Conservation agents are calling it one of Missouri's largest cases of deer poaching. The case was so egregious that Lawrence County Judge Robert George ordered a special addition to the jail time one of the poachers received.

Court records show the defendant "is to view the Walt Disney movie Bambi, with the first viewing being on or before December 23, 2018, and at least one such viewing each month thereafter, during Defendants incarceration in the Lawrence County Jail."

The southwest Missouri case involves David Berry Sr. of Springfield, David Berry Jr. of Brookline, and Kyle Berry of Everton. The trio were involved in a multi-year investigation by state, federal and Canadian law enforcement agencies and conservation officers involving suspects in Kansas, Missouri, Nebraska and Canada. David Berry Jr. is the defendant who was ordered to watch Bambi....

On Thursday, Dec. 13, David Berry Jr. received a 120-day sentence in Barton County Circuit Court for a felony firearms probation violation. On Dec. 6, he received a one-year jail sentence in Lawrence County Associate Court after pleading guilty to taking wildlife illegally on Oct. 11. The 120-day sentence Berry Jr. received in Barton County Circuit Court will be served in addition to the one-year sentence he received in Lawrence County.

These convictions were made with information obtained from Operation Game Thief, a hotline sponsored by the Missouri Department of Conservation and the Conservation Federation of Missouri. “It is unknown how many deer the main group of suspects has taken illegally over the past several years,” Lawrence County Conservation Agent Andy Barnes said. “It would be safe to say that several hundred deer were taken illegally.”

Prior to the July 2016 interviews, David Berry Sr. and Eric Berry, 20, Everton, were convicted of taking gamefish by hand in Dade County. During the 2017 firearms deer season, while awaiting his court appearance for violations from the 2016 investigation, Eric Berry and an accomplice were caught spotlighting in Lawrence County. To date, this group of poachers has paid $151,000 in bonds and $51,000 in fines and court costs and collectively served 33 days in jail.

David Berry Sr. and David Berry Jr. had their hunting, fishing and trapping privileges revoked for life by the Missouri Conservation Commission. Eric Berry and Kyle Berry had hunting and fishing privileges revoked for 18 years and 8 years, respectively. Jerimiah Cline, of Republic, who took wildlife illegally and assisted the Berrys, had hunting privileges revoked for five years....

Why take just the deer heads and leave the rest to rot? "In situations like this, with serial poachers who have no regard for the animals, rules of fair chase, or aren’t bothered by the fact that they’re stealing from others, it’s all about greed and ego," said Randy Doman, MDC Protection Division Chief. "Taking just the heads is their version of obtaining a 'trophy' and leaving the carcass behind is merely an afterthought. While there are some cases where poachers go after the antlers for profit, with this bunch it was more about the thrill of the kill itself."

The report that some of these defendants had previously gotten in trouble for "taking gamefish by hand" has me thinking (only half-jokingly) that they should have been ordered to watch Disney's Little Mermaid. And, of course, Disney's Lion King should be a must-watch for that infamous guy who went hunting illegally for Cecil the Lion.  

Especially when we all could use an extra bit of levity in our lives, I have in the title of this post sought to encourage everyone to come up with clever crime and Disney movie pairings.   Would it be so wrong to suggest that Michael Cohen should have been ordered to watch Disney's Robin Hood?  Or that anyone convicted of conducting illegal experiments has to watch Disney's Lilo & Stitch?  (I know that last one is really a stretch, but I wanted to suggest I will no judge silly efforts to spotlight a lesser-known Disney movie in this parlor game).

So, dear readers, what crime and Disney movie sentencing would you find fitting and amusing?

December 18, 2018 in Criminal Sentences Alternatives, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Wednesday, December 12, 2018

Prison Policy Initiative produces "Correctional Control 2018: Incarceration and supervision by state"

National_correctional_control2018The fine folks at the Prison Policy Initiative a few years ago produced this first version of a report that sought to aggregate "data on all of the kinds of correctional control: federal prisons, state prisons, local jails, juvenile incarceration, civil commitment, Indian Country jails, parole and, lastly but importantly, probation."  PPI's latest version of this report, now called "Correctional Control 2018: Incarceration and supervision by state," gets started this way:

The U.S. has a staggering 2.3 million people behind bars, but even this number doesn’t capture the true scale of our correctional system.  For a complete picture of our criminal justice system, it’s more accurate to look at the 6.7 million people under correctional control, which includes not only incarceration but also probation and parole.

The vast majority of people under correctional control are on probation and parole, collectively known as community supervision (or community corrections).  An estimated 4.5 million adults are under community supervision, nearly twice the number of people who are incarcerated in jails and prisons combined. Yet despite the massive number of people under their control, parole and probation have not received nearly as much attention as incarceration.  Only with recent high-profile cases (such as rapper Meek Mill’s probation revocation) has the public begun to recognize the injustices plaguing probation and parole systems, which set people up to fail with long supervision terms, onerous restrictions, and constant scrutiny.  Touted as alternatives to incarceration, these systems often impose conditions that make it difficult for people to succeed, and therefore end up channeling people into prisons and jails.

Understanding correctional control beyond incarceration gives us a more accurate and complete picture of punishment in the United States, showing the expansive reach of our criminal justice system.  This is especially true at the state level, as some of the states that are the least likely to send someone to prison are the most likely to put them under community supervision.  Given that most criminal justice reform will need to happen at the state and local levels, it is crucial for states to assess not only their incarceration rates, but whether their “alternatives” to incarceration are working as intended.

For this report, we compiled data on each state’s various systems of correctional control to help advocates and policymakers prioritize targets for reform.  This report includes data on federal prisons, state prisons, local jails, juvenile confinement, involuntary commitment, Indian Country jails, parole, and probation. We make the data accessible in one nationwide chart and 100 state-specific pie charts.  In this update to our original 2016 report, we pay particular attention to the harms of probation and parole, and discuss how these systems might be reworked into more meaningful alternatives to incarceration.

December 12, 2018 in Collateral consequences, Criminal Sentences Alternatives, Data on sentencing, Detailed sentencing data, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (1)

Tuesday, December 11, 2018

Michael Flynn in sentencing memo requests probation "not to exceed one year ... along with 200 hours of community service."

As reported in this Politico article, headlined "Flynn pleads with judge for no jail time," a high-profile defendant is asking for a low-impact sentencing outcome. Here are the basics:

Michael Flynn’s attorneys asked a federal judge on Tuesday to spare the former Trump national security adviser any jail time because of his “extensive cooperation” with special counsel Robert Mueller.

In a 178-page sentencing memo, Flynn’s attorneys pleaded for leniency by citing their client’s “exceptional record of military service” and “his genuine contrition for the uncharacteristic error in judgment that brought him before this court.”

Flynn, who pleaded guilty last December to lying to the FBI during the early stages of its counterintelligence investigation into Russian meddling in the 2016 election, should instead be sentenced to one year of probation with minimal supervision conditions and 200 hours of community service, his lawyers said.

The retired Army general, his lawyers added, has shown he has a “deep respect for the law, as reflected in his extensive cooperation with the government’s efforts to get to the truth and to enforce the laws.”

U.S. District Court Judge Emmet Sullivan is scheduled to sentence Flynn on Dec. 18 for his guilty plea for making false statements to the FBI. Mueller’s office last week highlighted Flynn’s cooperation — including 19 interviews with the special counsel and other Justice Department prosecutors — in their own memo suggesting that Flynn get little or no jail time for his behavior.

The full filing is available at this link, and it runs 178 pages due to dozens of exhibits mostly in the form of letters in his support. The memo itself runs only just over a dozen pages and it starts with this "Preliminary Statement":

The defendant, through his attorneys, submits this Memorandum in Aid of Sentencing and respectfully requests that the Court grant the Government’s Motion for Downward Departure pursuant to § 5K1.1 of the United States Sentencing Guidelines, and sentence him to a term of probation not to exceed one year, with minimal conditions of supervision, along with 200 hours of community service.  General Flynn has accepted responsibility for his conduct.  He has cooperated extensively with several Department of Justice investigations, as detailed in the addendum to the Government’s Memorandum in Aid of Sentencing.  As the Government has made clear, his cooperation was not grudging or delayed.  Rather, it preceded his guilty plea or any threatened indictment and began very shortly after he was first contacted for assistance by the Special Counsel’s Office. Following extraordinary public service in the United States Army, during which his innovations as a highly decorated intelligence officer saved countless American lives, and a lifetime of faithful devotion to his family and fellow service members and veterans, as described in the powerful letters of support that accompany this submission, a sentence of non-incarceration is both appropriate and warranted.

Prior related posts:

December 11, 2018 in Booker in district courts, Celebrity sentencings, Criminal Sentences Alternatives, Federal Sentencing Guidelines | Permalink | Comments (1)

Monday, December 10, 2018

Congress finally enacts "Paroline fix" that should improve victim restitution in federal child porn cases

Long-time readers may recall regularly blogging here about federal district and circuit opinions struggling to figure out whether and how courts could impose restitution awards/punishments on federal offenders convicted only of downloading child pornography images.  Because the child porn restitution questions produced various splits in the lower courts, the Supreme Court took up and "resolved" these issues in Paroline v. US, No. 12-8561 (Apr. 23, 2014) (available here).  But because Paroline required federal judges, in the words of one district court, to make "essentially a wild-ass guess" when trying to determine the appropriate level of restitution for a victim in a child porn downloading case, this issue continued to cry out for a legislative fix in the wake of the Paroline ruling.

A few days after the Supreme Court ruled in Paroline, I asked in a post "Will Congress fix (quickly? ever? wisely?) the "puzzle of paying Amy" after Paroline?".  And a few years after the Supreme Court ruled in Paroline, victim advocates Paul Cassell and James Marsh talking through these issues in a law review article "Full Restitution for Child Pornography Victims: The Supreme Court's Paroline Decision and the Need for a Congressional Response".  Now, a little more than 55 months after the Supreme Court ruled in Paroline, Congress managed to get a Paroline fix done in a bipartisan fashion. 

Specifically, Congress used its lame duck session to finalize a long-discussed Paroline fix in the form of an amendment to federal restitution statutes called the "Amy, Vicky, and Andy Child Pornography Victim Assistance Act of 2018."   President Trump, as reported in this press release, on Friday signed this legislation into law.  Senator Orrin Hatch, who played a leading role in getting this enacted, released this press statement celebrating and explaining this new legislation:

Senator Orrin Hatch (R-UT), the senior Republican and President Pro Tempore of the US Senate, released the following statement after the President signed the Amy, Vicky, and Andy Child Pornography Victim Assistance Act into law. Senator Hatch introduced the legislation alongside Senators Dianne Feinstein (D-CA), Chuck Grassley (R-IA), Amy Klobuchar (D-MN), John Cornyn (R-TX), and Pat Toomey (R-PA). This bill recognizes the unique kind of harm caused by child pornography and requires restitution in a manner that will support victims.

“I’m thrilled the President has signed the Amy, Vicky, and Andy Act into law. This is a momentous day and many years in the making.” Hatch said. “This bipartisan legislation will provide meaningful assistance for child pornography victims to support their recovery and allow them to reclaim their lives. I am proud of this legislation and look forward to seeing it change the world for good.” The legislation establishes more relevant standards for child pornography victims who seek restitution from defendants and gives victims the alternative of a one-time fixed compensation payment from the existing Crime Victims Fund. The bill also allows victims access to the images depicting them, which can be important for victim identification, expert testimony, forensic review, and treatment.

The bill passed in the Senate by unanimous consent in January. With the help of Congressman Trey Gowdy (R-SC), the House sponsor of the bill, and House Judiciary Chairman Bob Goodlatte (R-VA), the House of Representatives passed an amended version of the bill by unanimous consent. In November, the Senate passed the amended bill by unanimous consent, and ... was signed by the President into law.

The bill is named after victims depicted in some of the most widely circulated child pornography series in the world. “Amy,” “Vicky,” and “Andy” all strongly support the bill.

The Amy, Vicky, and Andy Child Pornography Victim Assistance Act includes the following provisions:

  • Findings that focus on the unique nature of child pornography crime and how it harms victims
  • A more relevant and predictable definition of “full amount of a victim’s losses”
  • Restitution: --- Child pornography production: victims receive full amount of their total losses; ----Child pornography trafficking: victims receive from each defendant a minimum of $3,000
  • Compensation: --- Victims of child pornography trafficking are entitled to receive a one-time payment of $35,000 in defined monetary assistance (which is indexed to inflation) from a Child Pornography Victims Reserve (CPVR) within the federal Crime Victims Fund (CVF); --- Caps fees for attorneys representing a victim seeking defined monetary assistance at 15%; --- The court must assess defendants in child pornography cases to contribute to the CPVR: up to $17,000 for possession, up to $35,000 for distribution, and up to $50,000 for production crimes; --- The CPVR will be capped at $10 million
  • Victims of child pornography trafficking will enjoy the same priority in restitution payments as victims in other restitution statutes
  • Child pornography victims have equal rights with criminal defendants to review the child pornography depicting them at a government facility or court for the purposes of furnishing expert testimony
  • The Department of Justice must deliver a report to Congress within two years after passage about the Act’s implementation including an assessment of the funding levels for the Child Pornography Victims Reserve

I have long been a support of more effective and predictable restitution mechanisms in these  kinds of cases and others, so I welcome this overdue development.  Because few have been reporting consistently on the impact of the Paroline ruling in federal cases, I am especially glad this legislation give the Justice Department a responsibility to report on this new legislation's effectiveness.

A few (of many) prior posts on Paroline and child porn restitution issues mostly from some years ago:

December 10, 2018 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (2)

Tuesday, November 27, 2018

New York Court of Appeals rules noncitizen defendants have Sixth Amendment jury trial right when charges carry potential penalty of deportation

The top court in New York issued an interesting opinion today concerning the application of the Sixth Amendment's jury trial right, as reported here via Courthouse News Service: 

Since noncitizens can be deported after convictions on mere misdemeanors, they are entitled to have those charges decided in jury trials, New York’s highest court ruled 5-2 Tuesday.

The ruling stems from the 2012 prosecution of Saylor Suazo with numerous assault and harassment crimes.  Suazo, who remained in the United States illegally after his visa expired, was accused of throwing the mother of his children to the floor, and then choking and beating her.  A month later he was charged with criminal contempt after he violated a restraining order.

Before trial, prosecutors had the charges reduced to class-B misdemeanors, which are usually punishable by 90-day maximum sentences and qualify as petty crimes that can be tried summarily without a jury.  Suazo nevertheless could face deportation proceedings if convicted, but the trial judge disagreed that this entitled him to a jury trial.

After the bench trial concluded in 2012, Suazo was found guilty of the assault charge, as well as menacing, obstruction of breathing or blood circulation, and attempted criminal contempt.  A three-judge appellate panel affirmed the judgment, finding that deportation is a collateral consequence of conviction, but the New York Court of Appeals reversed 5-2 on Tuesday.

Writing for the majority, Judge Leslie Stein called it technically correct that deportation is a civil collateral consequence of a state conviction.  She also noted, however, that deportation is practically inevitable when noncitizens face even class-B misdemeanors.  “Detention — which closely resembles criminal incarceration — may last several days, or it may last months or years,” Stein wrote.  “A noncitizen who is adjudicated deportable may first face additional detention, followed by the often-greater toll of separation from friends, family, home, and livelihood by actual forced removal from the country and return to a land to which that person may have no significant ties,” the 22-page opinion continues....

Judges Michael Garcia and Rowan Wilson dissented separately from the majority.  In his dissent, Garcia wrote that the threat of deportation does not automatically transport petty crimes into serious ones covered by the Sixth Amendment, and that the U.S. Supreme Court must weigh in on the issue.  Garcia also noted the majority’s ruling carves out special treatment for deportation and could also lead to a right to jury trials in other class-B misdemeanor cases, such as those that result in the loss of public housing....

Attorney Mark Zeno of the Center for Appellate Litigation, who represented Suazo, praised the ruling and noted that the D.C. Circuit also has upheld the right to jury trials for noncitizens facing deportation.

A spokeswoman for the Bronx District Attorney Office meanwhile said that the ruling conflicts with U.S. Supreme Court precedent.  “We understand that while the Court of Appeals addresses the harsh realities presented by the possible consequence of deportation for noncitizens, its decision presents conflicts with existing Supreme Court precedent that must be resolved,” the spokeswoman said in a statement.  “This decision creates ramifications, including serious backlogs and disparities in the administration of justice, for the courts of this state.  We are considering taking the case to the Supreme Court to address the crucial questions this decision presents.”

November 27, 2018 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0)

Thursday, November 01, 2018

Pew reports on persons on probation or parole in US

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

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

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

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

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

Sunday, October 14, 2018

"Unstitching Scarlet Letters? Prosecutorial Discretion and Expungement"

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

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

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

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

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

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

Wednesday, October 10, 2018

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

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

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

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

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

Tuesday, September 25, 2018

New Pew issue brief reviews probation and parole in the US

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

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

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

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

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

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

Policy changes can reduce correctional control and improve public safety.

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

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

Tuesday, September 11, 2018

"Digital Expungement"

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

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

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

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

Monday, September 10, 2018

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

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

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

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

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

 Prior related posts:

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

Saturday, August 18, 2018

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Friday, August 17, 2018

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

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

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

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

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

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

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

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

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

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

Thursday, August 02, 2018

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

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

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

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

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

Wednesday, August 01, 2018

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

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

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

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

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

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

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

"What Is Prison Abolition?"

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

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

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

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

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

Monday, July 23, 2018

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

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

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

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

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