Monday, December 20, 2021

Despite lacking a quorum, US Sentencing Commission still has an interesting and productive year

Regular readers are likely tired of hearing me complain about the US Sentencing Commission being crippled by a lack of Commissioners, but I hope some have noted my eagerness to compliment the "short-staffed" USSC for all the data and reports produced and promulgated through 2021.  This morning I received an email from the Commission providing a "year in review," and I was struck again at what the Commission has achieved this past year even absent a quorum.  I cannot find this email in a web form, so I will here just reproduce some highlights (with links from the USSC and to the USSC website):

1. Preliminary FY21 data reveal a continued decline in sentencings and a historic shift in the makeup of the federal drug caseload. Learn more ...
2. With the advent of COVID-19, tens of thousands of offenders sought compassionate release. The Commission tracked and reported this data throughout 2021. Learn more

In early 2022, look for a comprehensive new research report on compassionate release providing even greater analysis regarding the courts’ reasoning for granting or denying motions for compassionate release....

6. The Commission expanded its catalog of interactive tools designed for those working in the federal criminal justice system.
IDA Expansion: Interactive Data Analyzer feedback has been very positive and users continue to #AskIDA for even more data. The Commission has listened to your feedback. IDA is now updated with enhanced filtering capabilities—including a brand new data filter for career offenders. Learn more

JSIN Development: The Judiciary Sentencing INformation (JSIN) platform is an online sentencing data resource specifically developed with the needs of judges in mind. The platform provides quick and easy online access to average prison length and other sentencing data for similarly-situated defendants. Learn more

December 20, 2021 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (1)

Sunday, December 19, 2021

Vera Institute updates its Incarceration Trends website

As discussed in this press release, titled "Vera Institute of Justice Unveils Updated Incarceration Trends Website," the Vera Institute has updated this cool website. Here are the basics as described in the press release:

The Vera Institute of Justice [has] a new, updated version of its Incarceration Trends website, which now includes analysis of more than five decades of local jail and state prison data at the national, state, and county levels.  The updated site brings many of the data points current to spring 2021 and represents the most comprehensive look to date at the growth of mass incarceration across states, counties, and urban-to-rural geographies....

The nation’s biggest cities once had the highest rates of incarceration, but over the past several decades, jail incarceration and state prison admissions have declined in major metro areas as they rose precipitously in smaller cities and rural communities.  Today in the United States, approximately two out of three people in local jails have not been convicted of a crime — many are being detained in civil matters, such as people incarcerated pretrial for immigration cases or those who can’t pay child support or fines and fees.  The updated analysis presented in Incarceration Trends highlights that the disproportionate criminalization and incarceration of Black people and other people of color is also most pronounced in rural counties, as is the rise of women’s incarceration.

The newly visualized data also features the rebound in jail incarceration after an unprecedented 14 percent drop in incarceration in the first half of 2020 (bringing the total incarcerated population from 2.1 million to 1.8 million people) in response to the spread of COVID-19.  As of spring 2021, state prison decarceration had stalled and jail populations continued to trend upward.

Incarceration Trends offers insight on national-, state-, and county-level pages, enabling users to compare county-level data to state and national trends.  The website includes:

  • analysis of the race, ethnicity, and gender of people in the nation’s jails and prisons;

  • visualizations of state incarceration trends across major metros, smaller cities, suburbs, and rural communities;

  • rankings of all of the counties in a given state by the incarceration rate and growth of incarceration;

  • a visualization of each county’s jail population, representing the most recently available data about what proportion is held pretrial, sentenced, and held on behalf of other authorities, including state departments of corrections and federal agencies;

  • the ability to toggle between the average number of people held in a jail on any day and the rate of incarceration, accounting for resident population changes; and

  • data on regional jail systems that serve multiple counties.

The new Incarceration Trends website shows both the significant increase in jail incarceration across the urban to rural spectrum since 1970 and the more recent divergence in incarceration trends, including during the COVID-19 pandemic. Nationally, the rate at which people are incarcerated in local jails declined 26 percent between late 2019 and mid-2020. However, jail incarceration had rebounded sharply by spring 2021.

December 19, 2021 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Thursday, December 16, 2021

New BJS reports on "Probation and Parole in the United States, 2020" and "Profile of Prison Inmates, 2016"

Earlier this week, the Bureau of Justice Statistics released its latest detailed accounting of US prison populations (discussed here), and today brought two more notable data reports from BJS.  Here is a brief summary (with links) via the email I received this morning from the office of Justice Programs:

The Department of Justice’s Bureau of Justice Statistics today released Probation and Parole in the United States, 2020.  The report is the 29th in a series that began in 1981. It includes characteristics of the population such as sex, race or ethnicity and most serious offense of adult U.S. residents under correctional supervision in the community. The report details how people move onto and off community supervision, such as completing their term of supervision, being incarcerated, absconding or other unsatisfactory outcomes while in the community.  Findings are based on data from BJS’s 2020 Annual Probation Survey and Annual Parole Survey.

BJS also released Profile of Prison Inmates, 2016.  This report describes the characteristics of state and federal prisoners in 2016, including demographics, education and marital status.  Findings are based on data from BJS’s 2016 Survey of Prison Inmates (SPI), which is conducted periodically and consists of personal interviews with prisoners.  For the first time, the 2016 SPI measured sexual orientation and gender identity, and those estimates are included in this report.  Statistics on prisoners’ offenses, time served, prior criminal history and any housing status prior to imprisonment, including homelessness, are also presented.  The report concludes with a summary of the family background of prisoners while they were growing up and any family members who have ever been incarcerated.

I am hoping in the weeks ahead to find some time to really mine some interesting factoids from all this notable new BJS data. For now I will be content to flag just a few "highlights" from the start of these two new document:

December 16, 2021 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (0)

DPIC releases year-end report emphasizing "continuing decline of death penalty" in 2021

The Death Penalty Information Center this morning released its annual report here under the heading "The Death Penalty in 2021: Year End Report; Virginia’s Historic Abolition Highlights Continuing Decline of Death Penalty." Here is the starts of the report's introduction, with lots of data and details following thereafter:

The death penalty in 2021 was defined by two competing forces: the continuing long-term erosion of capital punishment across most of the country, and extreme conduct by a dwindling number of outlier jurisdictions to continue to pursue death sentences and executions.

Virginia’s path to abolition of the death penalty was emblematic of capital punishment’s receding reach in the United States.  A combination of changing state demographics, eroding public support, high-quality defense representation, and the election of reform prosecutors in many key counties produced a decade with no new death sentences in the Commonwealth.  As the state grappled with its history of slavery, Jim Crow, lynchings, and the 70th anniversary of seven wrongful executions, the governor and legislative leaders came to see the end of the death penalty as a crucial step towards racial justice.  On March 24, Virginia became the first southern state to repeal capital punishment, and expanded the death-penalty-free zone on the U.S. Atlantic coast from the Canadian border of Maine to the northern border of the Carolinas.

In the West, where an execution-free zone spans the Pacific coast from Alaska to Mexico, the Oregon Supreme Court began removing prisoners from the state’s death row based on a 2019 law that redefined the crimes that constitute capital murder.  Nationwide, mounting distrust of the death-penalty system was reflected in public opinion polling that measured support for capital punishment at near half-century lows.  With Virginia’s abolition, a majority of states have now abolished the death penalty (23) or have a formal moratorium on its use (3).  An additional ten states have not carried out an execution in at least ten years.

2021 saw historic lows in executions and near historic lows in new death sentences.  As this report goes to press, eighteen people were sentenced to death, tying 2020’s number for the fewest in the modern era of the death penalty, dating back to the Supreme Court ruling in Furman v. Georgia that struck down all existing U.S. death-penalty statutes in 1972.  The eleven executions carried out during the year were the fewest since 1988.  The numbers were unquestionably affected by the pandemic but marked the seventh consecutive year of fewer than 50 death sentences and 30 executions.  Both measures pointed to a death penalty that was geographically isolated, with just three states — Alabama, Oklahoma, and Texas — accounting for a majority of both death sentences and executions.

December 16, 2021 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data, Who Sentences | Permalink | Comments (2)

Wednesday, December 15, 2021

New BJS report documents big decrease in prison admissions drove 15% imprisonment rate decline in 2020

The Bureau of Justice Statistics has released its latest detailed accounting of US prison populations in this big report titled "Prisoners in 2020 – Statistical Tables."  The BJS data capture realities at yearend 2020, and thus reflects lots (but not all) COVID-era developments. Here is part of the start of the document, along with some of its "highlights":

In 2020, the number of persons held in state or federal prisons in the United States declined 15%, from 1,430,200 at yearend 2019 to 1,215,800 at yearend 2020. Only Alaska showed an increase (2%) in its prison population, while other jurisdictions showed declines of 7% to 31%.  The number of persons sentenced to more than 1 year in state or federal prison decreased from 1,379,800 in 2019 to 1,182,200 in 2020. Te combined state and federal imprisonment rate for 2020 (358 per 100,000 U.S. residents) represented a decrease of 15% from 2019 (419 per 100,000 U.S. residents) and a decrease of 28% from 2010 (500 per 100,000 U.S. residents).

The COVID-19 pandemic was largely responsible for the decline in prisoners under state and federal correctional authority.  Courts significantly altered operations for part or all of 2020, leading to delays in trials and/or sentencing of persons, and this was refected in the 40% decrease in admissions to state and federal prison from 2019.  While the number of releases also declined during 2020, releases occurred at a slower rate (10%) than the decrease in admissions. Although deaths represented 1% of the total releases from prison in 2020, the number prisoners that died under the jurisdiction of state or federal correctional authorities in 2020 (6,100 prisoners) increased 46% from 2019 (4,200).

From 2019 to 2020, the decline in the number of females sentenced to more than 1 year in prison (down 22%) outpaced the decrease in sentenced male prisoners (down 14%).  The imprisonment rates for U.S. residents in all racial or ethnic categories decreased by 12% to 16% from 2019 to 2020 and by at least 25% from 2010 to 2020.  The imprisonment rate for black U.S. residents decreased 37%, from 1,489 per 100,000 in 2010 to 938 per 100,000 in 2020.

Highlights

  • At yearend 2020, the number of prisoners under state or federal jurisdiction had decreased by 214,300 (down 15%) from 2019 and by 399,700 (down 25%) from 2009, the year the number of prisoners in the United States peaked.
  • Nine states showed decreases in the number of persons in prison of at least 20% from 2019 to 2020.
  • The prison populations of California, Texas, and the Federal Bureau of Prisons each declined by more than 22,500 from 2019 to 2020, accounting for 33% of the total prison population decrease.
  • In 2020, the imprisonment rate was 358 per 100,000 U.S. residents, the lowest since 1992.
  • From 2010 to 2020, the sentenced imprisonment rate for U.S. residents fell 37% among blacks; 32% among Hispanics; 32% among Asians, Native Hawaiians, and Other Pacifc Islanders; 26% among whites; and 25% among American Indians and Alaska Natives.
  • The number of admissions to federal prison (down 19,000) and to state prison (down 211,800) both declined by 40% from 2019 to 2020.
  • Releases from federal and state prisons decreased during 2020 (down 58,400 or almost 10% from 2019), but at a lower rate than the decrease in admissions.

I find it fascinating and telling that our nation actually did not release more people from prison during an historic pandemic, but it did have a harder time continuing to send a massive number of new people to prison. I am thus tempted to joke that, like lots of other segments of our society, America's mass incarceration system has also had "supply chain" issues that has impacted its usual functioning. Whether these patterns have continued into 2021 and beyond as this pandemic lingers on will be worth watching closely.

December 15, 2021 in Data on sentencing, Detailed sentencing data, Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Friday, December 10, 2021

"Bureau of Justice Statistics releases "Capital Punishment, 2020 – Statistical Tables"

Today the Justice Department's Bureau of Justice Statistics has released this new report with data on the administration of capital punishment in the United States through the end of 2020. (As I have noted before, though BJS provides great data on criminal justice administration, in the capital punishment arena the Death Penalty Information Center tends to have more up-to-date and more detailed data on capital punishment.)

This new BJS report provides notable and clear statistical snapshots about the death penalty in the US, and the document starts with this introduction and these "highlights" on the first two pages of a 26-page document:

At yearend 2020, a total of 28 states and the Federal Bureau of Prisons (BOP) held 2,469 prisoners under sentence of death, which was 94 (4%) fewer than at yearend 2019.  During 2020, the number of prisoners under sentence of death declined for the twentieth consecutive year.  California (28%), Florida (14%), and Texas (8%) held half of the prisoners under sentence of death in the United States on December 31, 2020.  The BOP held 51 prisoners under sentence of death at yearend.

Five states and the BOP executed a total of 17 prisoners in 2020.  The BOP executed 10 prisoners, which accounted for 59% of the executions carried out in 2020.

This report presents statistics on persons who were under sentence of death in 2020, state and federal death penalty laws in 2020, and historical trends in executions.  At yearend 2020, a total of 31 states and the federal government authorized the death penalty.

  • Colorado repealed the death penalty provision of its first-degree murder statute in July 2020, and the governor commuted the death sentences of the three prisoners under previously imposed sentences of death to life without the possibility of parole. ƒ
  • Seven states received a total of 14 prisoners under sentence of death in 2020, the smallest annual number reported since the U.S. Supreme Court invalidated capital punishment statutes in several states in 1972 (see Furman v. Georgia, 408 U.S. 238 (1972)).
  • ƒNineteen states removed a total of 91 prisoners from under sentence of death by means other than execution in 2020.
  • ƒDuring 2020, 17 states and the BOP reported a decrease in the number of prisoners held under sentence of death, 16 states reported no change, and no states reported an increase in the number of prisoners held under sentence of death.
  • ƒThe largest declines in the number of prisoners under sentence of death in 2020 occurred in California (down 24 prisoners) and Pennsylvania (down 14).
  • ƒThe majority (98%) of prisoners under sentence of death were male.
  • ƒAt yearend 2020, about 56% of prisoners under sentence of death were white and 41% were black.
  • Among prisoners under sentence of death at yearend 2020 with a known ethnicity, 15% were Hispanic. ƒ
  • Prisoners under sentence of death on December 31, 2020 had been on death row for an average of 19.4 years.
  • ƒPrisoners executed during 2020 had been on death row for an average of 18.9 years.

December 10, 2021 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data | Permalink | Comments (2)

Wednesday, December 08, 2021

US Sentencing Commission releases FY 2021 fourth quarter sentencing data showing growth in cases and in average sentence severity

US Sentencing Commission yesterday published here its latest quarterly data report which is described as a "4th Quarter Release, Preliminary Fiscal Year 2021 Data Through September 30, 2021." These new data provide another official accounting of how COVID realities appear to be continuing to reduce the usual total number of federal sentences imposed, though in this latest quarter we are seeing a return almost to pre-pandemic norms for most offense categories other than immigration cases.

Specifically, as reflected in Figure 2, in pre-pandemic years, quarterly cases sentenced generally averaged around 17,000 to 19,000. But in the three quarters closing out 2020, amid the worst early periods of the pandemic, there were only between about 12,000 and 13,000 cases being sentenced each quarter.  In the most recent quarter here reported, running from July 1 to September 30, 2021, it appears that more than 15,000 cases were sentenced in federal court.  Figure 2 also shows that, relative to pre-pandemic trends, the only major caseload decline now is in the total number of immigration cases sentenced while the other big federal case categories — Drug Trafficking, Firearms and Economic Offenses — now have the total number of cases sentenced in recent quarters not off that much from recent historical norms.

Consistent with what I have noted in prior post about pandemic era USSC data, these data continue to show a notable jump in the percentage of below-guideline variances granted in the last five quarters (as detailed in Figures 3 and 4).  But I suspect these data may reflect the altered mix of cases now that the number of immigration cases being sentenced has declined dramatically rather than significantly different behaviors by sentencing judges.  And, notably, Figure 5 in this data run reveals that the "Average Guideline Minimum" as well as the "Average Sentence" were higher in this last quarter than in recent history, with a particularly notable uptick in these measures of average sentence severity over the last two quarters.

A few prior recent related post:

December 8, 2021 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Impact of the coronavirus on criminal justice | Permalink | Comments (0)

Wednesday, December 01, 2021

US Sentencing Commission issues new report on "Recidivism of Federal Firearms Offenders Released in 2010"

Cover_recidivism-firearms-2021The US Sentencing Commission has this week published some new findings from its big eight-year recidivism study of 32,000+ offenders released in 2010.  This new 98-page report is titled "Recidivism of Federal Firearms Offenders Released in 2010," and this USSC webpage provides this overview with key findings:

Overview

(Published November 30, 2021) This report is the second in a series continuing the Commission’s research of the recidivism of federal offenders. It provides an overview of the recidivism of federal firearms offenders released from incarceration or sentenced to a term of probation in 2010, combining data regularly collected by the Commission with data compiled from criminal history records from the Federal Bureau of Investigation (FBI). This report provides an overview of recidivism for these offenders and information on key offender and offense characteristics related to recidivism. This report also compares recidivism outcomes for federal firearms offenders released in 2010 to firearms offenders released in 2005. In the future, the Commission will release additional publications discussing specific topics concerning recidivism of federal offenders.

The final study group of 5,659 firearms offenders satisfied the following criteria:

  • United States citizens
  • Re-entered the community during 2010 after discharging their sentence of incarceration or by commencing a term of probation in 2010
  • Not reported dead, escaped, or detained
  • Have valid FBI numbers that could be located in criminal history repositories (in at least one state, the District of Columbia, or federal records)
  • Sentenced under §2K2.1, sentenced as armed career criminals or career offenders, or convicted under 18 U.S.C. § 924(c)

Key Findings

  • This study observed substantial consistency in the recidivism of firearms offenders across the two time periods, 2005 and 2010, despite two intervening major developments in the federal criminal justice system: the Supreme Court’s decision in Booker and increased use of evidence-based practices in federal supervision.
  • Firearms offenders recidivated at a higher rate than all other offenders.  Over two-thirds (69.0%) of firearms offenders were rearrested for a new crime during the eight-year follow-up period compared to less than half of all other offenders (45.1%).
  • Firearms offenders and all other offenders who recidivated were rearrested for similar crimes. Of the firearms offenders who recidivated, assault was the most serious new charge for 25.9 percent of offenders followed by drug trafficking (11.0%). Similarly, of the all other offenders who recidivated, assault was the most common new charge (19.0%) followed by drug trafficking (11.4%).
  • Firearms offenders have higher recidivism rates than all other offenders in every Criminal History Category (CHC). Within most CHCs, this difference was about ten percentage points.
    • In CHC I, 39.7 percent of firearms offenders recidivated compared to 29.6 percent of all other offenders.
    • In CHC VI, 82.8 percent of firearms offenders recidivated compared to 72.9 percent of all other offenders.
  • Firearms offenders recidivated at a higher rate than all other offenders in every age-at-release grouping. Firearms offenders recidivated at over twice the rate of all other offenders among those released after age 59 (31.1% compared to 14.5%).
  • The recidivism rates for firearms and all other offenders were highly similar for both the 2010 release cohort in this report and the 2005 release cohort previously studied. In the 2005 release cohort, 68.1 percent of firearms offenders recidivated compared to 46.3 percent of all other offenders. Similarly, 69.0 percent of firearms offenders in the 2010 release cohort recidivated compared to 45.1 percent of all other offenders.

December 1, 2021 in Data on sentencing, National and State Crime Data, Reentry and community supervision | Permalink | Comments (2)

Tuesday, November 30, 2021

ACLU sues Biden Administration for data on CARES home confinement cohort

This ACLU press release reports on a notable new lawsuit: "The American Civil Liberties Union and ACLU of the District of Columbia today filed a lawsuit against the Department of Justice and the federal Bureau of Prisons under the Freedom of Information Act, seeking information about the federal government’s potential plan to force people placed on home confinement under the CARES Act back to prison after the pandemic subsides, even if they have followed all requirements of home confinement, been reunited with their families, and successfully reintegrated into society."  Here is more:  

Recognizing the dangers of COVID spread in federal prisons, Congress provided, as part of the March 2020 Coronavirus Aid, Relief, and Economic Security (CARES) Act, that the Bureau of Prisons (BOP) could place incarcerated people in home confinement as a way of reducing the population of crowded prisons and mitigating the virus’ spread.  As a result, BOP has placed more than 34,000 people — including many elderly or medically vulnerable — on home confinement since March 2020.  BOP evaluated every single person and determined that none of them would pose a threat to public safety while on home confinement. While most have now completed their sentences, 7,769 are on home confinement currently. Many have found gainful employment and have reunited with spouses, children, and other loved ones.

In June 2020, the BOP director and medical director testified in the Senate that people released under the CARES Act would be on home confinement “for service of the remainder of their sentences.”  But in the last days of the Trump administration, the Justice Department’s Office of Legal Counsel (OLC) issued a memorandum saying that when the pandemic ends, people on home confinement must be ordered back to prison unless they are in the final months of their sentences, even if they have been completely law-abiding.  Such an order would disrupt their lives and the lives of their loved ones and would destroy the successful efforts they have made to reintegrate into society.

The BOP has not disclosed how many of the 7,769 people currently on home confinement may be forced back to prison. Although the Biden administration has said that the president will consider granting clemency to a subset of this group so that they will not be sent back to prison, he has not yet granted any such petitions.  The ACLU has repeatedly called on President Biden to grant clemency to everyone who is on home confinement under CARES and following the rules.

Under the Freedom of Information Act, the ACLU requested records providing information about people BOP moved to home confinement under the CARES Act. The ACLU also asked for any final DOJ and BOP policies implementing the OLC memorandum.  The government failed to provide the materials by the deadline.  Our lawsuit, filed today in federal court in the District of Columbia by the ACLU and the ACLU of the District of Columbia, asks the court to enforce the law against the Justice Department and the BOP and order them to immediately produce the requested records.

The full complaint is available here

November 30, 2021 in Criminal Sentences Alternatives, Data on sentencing, Impact of the coronavirus on criminal justice, Who Sentences | Permalink | Comments (0)

Monday, November 29, 2021

"The population prevalence of solitary confinement"

Th title of this post is the title of this notable new research article in the new issue of the journal Science Advances and authored by Hannah Pullen-Blasnik, Jessica T. Simes and Bruce Western.  Here is its abstract:

Solitary confinement is a severe form of incarceration closely associated with long-lasting psychological harm and poor post-release outcomes.  Estimating the population prevalence, we find that 11% of all black men in Pennsylvania, born 1986 to 1989, were incarcerated in solitary confinement by age 32.  Reflecting large racial disparities, the population prevalence is only 3.4% for Latinos and 1.4% for white men.  About 9% of black men in the state cohort were held in solitary for more than 15 consecutive days, violating the United Nations standards for minimum treatment of incarcerated people.  Nearly 1 in 100 black men experienced solitary for a year or longer by age 32.  Racial disparities are similar for women, but rates are lower.  A decomposition shows that black men’s high risk of solitary confinement stems primarily from their high imprisonment rate.  Findings suggest that harsh conditions of U.S. incarceration have population-level effects on black men’s well-being.

November 29, 2021 in Data on sentencing, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (3)

Tuesday, November 23, 2021

Bureau of Justice Statistics releases "Federal Prisoner Statistics Collected under the First Step Act, 2021"

I was excited to receive new of this new Bureau of Justice Statistics' publication with lots of rich new data about the federal prisoner population.  This website provides this overview and a few key findings from "Federal Prisoner Statistics Collected under the First Step Act, 2021":

Description

This is the third report as required under the First Step Act of 2018 (FSA; P.L. 115-391). It includes data on federal prisoners provided to BJS by the Federal Bureau of Prisons (BOP) for calendar year 2020. Under the FSA, BJS is required to report on selected characteristics of persons in prison, including marital, veteran, citizenship, and English-speaking status; education levels; medical conditions; and participation in treatment programs. Also, BJS is required to report facility-level statistics, such as the number of assaults on staff by prisoners, prisoners’ violations of rules that resulted in time credit reductions, and selected facility characteristics related to accreditation, on-site health care, remote learning, video conferencing, and costs of prisoners’ phone calls.

Highlights

  • The federal prison population decreased 13%, from 174,391 at yearend 2019 to 151,283 at yearend 2020.
  • In 2020, a total of 91 pregnant females were held in BOP-operated prison facilities, which was half the number held in 2019 (180).
  • In 2020, a total of 14,791 persons held in federal prison participated in a nonresidential drug abuse program, 10,868 in a residential drug abuse program, and 1,268 in a treatment challenge program for a substance use disorder.
  • In 2020, a total of 418 federal prisoners received medication-assisted treatment (approved by the U.S. Food and Drug Administration) to treat a substance use disorder.

The full document has a lot more interesting highlights, including these notable data points about the work of the federal risk assessment tool used by BOP known as PATTERN:

November 23, 2021 in Data on sentencing, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Sunday, November 21, 2021

Detailing "Mellowed Federal Enforcement" and other federal stories from Marijuana Law, Policy & Reform

In a recent post over at Marijuana Law, Policy & Reform, I have already noted a new essay, "How State Reforms Have Mellowed Federal Enforcement of Marijuana Prohibition" that I had the pleasure of co-authoring with my colleague Alex Fraga.  The forthcoming short piece is now up on SSRN, and here is part of its abstract:

Over [a] quarter century of state reforms, blanket federal marijuana prohibition has remained the law of the land. Indeed, though federal marijuana policies have long been criticized, federal prohibition has now been in place and unchanged for the last half century.  But while federal marijuana law has remained static amidst state-level reforms, federal marijuana prohibition enforcement has actually changed dramatically.  In fact, data from the U.S. Sentencing Commission (USSC) reveals quite remarkable changes in federal enforcement patterns since certain states began fully legalizing marijuana in 2012.

This essay seeks to document and examine critically the remarkable decline in the number of federal marijuana sentences imposed over the last decade.  While noting that federal sentences imposed for marijuana offenses are down 83% from 2012 to 2020, this essay will also explore how the racial composition of persons sentenced in federal court has evolved as the caseload has declined....  The data suggest that whites are benefiting relatively more from fewer federal prosecutions.

Reports from the Drug Enforcement Administration indicate that marijuana seizures at the southern US border have dwindled as states have legalized adult use and medicinal use of marijuana, and the reduced trafficking over the southern border likely largely explain the vastly reduced number of federal prosecutions of marijuana offenses. Nonetheless, though still shrinking in relative size, there were still more than one thousand people (and mostly people of color) sentenced in federal court for marijuana trafficking in fiscal year 2020 and over 100 million dollars was committed to the incarceration of these defendants for activities not dissimilar from corporate activity in states in which marijuana has been legalized for various purposes. 

In addition to welcoming feedback on this short piece, I also figure it would be useful to highlight a few additional posts with other recent coverage of federal reform issues and dynamics over at MLP&R:

November 21, 2021 in Data on sentencing, Marijuana Legalization in the States, Offender Characteristics, Offense Characteristics, Pot Prohibition Issues, Who Sentences | Permalink | Comments (0)

Tuesday, November 16, 2021

"The Secret Success of Federal Probationers"

The title of this post is the headline of this important recent commentary authored by Jacob Schuman over at The Crime Report.  I recommend the full piece, and here are excerpts (with links from the original):

Several times a year, the United States Sentencing Commission (USSC) publishes research reports on the federal criminal justice system.  These reports are part of the Commission’s statutory mandate and provide vital information and analysis to attorneys, scholars and the public.  Over the past 10 years alone, the Supreme Court has cited Commission reports in more than half-a-dozen cases.

Unfortunately, the Commission’s July 2020 report on Federal Probation and Supervised Release Violations contains a major mistake that greatly overstates the dangerousness of federal probationers.  To correct that mistake, I used the Commission’s data to re-run the analysis and found that probationers were more successful than previously reported.

The Commission claimed that approximately one-in-five defendants violated their supervision every year; yet the rate for federal probationers was just one-in-20.  Similarly, the Commission found that nearly half of supervision violators engaged in new felony conduct, but the figure for probation violations was only one-third.

Acknowledging the success of federal probationers is especially important, given current efforts to reduce incarceration and stem COVID-19 transmission by allowing defendants to serve terms of supervision in the community.  If judges are led to believe that probationers are more likely to commit violations, then they may be less willing to impose supervision as an alternative to imprisonment.  The Commission’s error thus not only threatens to taint its own research, but also to mislead the courts to the detriment of criminal defendants and the public.

The Commission deserves credit for publishing the Violations report, which marks the “first time” the agency collected and analyzed data on revocation hearings.  The report includes a publicly accessible database of 108,115 hearings in federal district courts between 2013-2017.  In analyzing this database, the Commission combined defendants sentenced to probation with those sentenced to supervised release, describing them together as “offenders sentenced to supervision.” That was a significant blunder....

Because probation is limited to low-level defendants, whereas supervised release can be imposed in all cases, probationers are likely to have been convicted of less serious crimes and to have shorter criminal records than people on supervised release.  And since criminal history is a strong predictor of recidivism, it stands to reason that this difference may also affect the violation rates of each group of offenders....

The Violations report is roughly accurate when it comes to violations of supervised release, which dominate the database.  In 2019, there were 112,500 people on supervised release, compared to just 14,500 on probation.  Similarly, the Commission found that 95 percent of violations were by people on supervised release, compared to just 5 percent on probation.  The Commission failed to recognize, however, that because the data is overwhelmingly violations of supervised release, its analysis would reflect the behavior of those defendants, while obscuring the outcomes for federal probationers....

I draw three conclusions from these results.  First, judges should not let the findings in the Violations report deter them from imposing probation instead of imprisonment on worthy candidates.  While the report suggests a ~20 percent annual violation rate, of which approximately half were new felonies, the data for federal probationers is more promising.  Federal probationers were 95 percent likely to comply with the terms of their supervision, and when they did misbehave, two-thirds of the time it was for a misdemeanor or technical violation.  The report largely reflects the outcomes for supervised-release violators, and is not accurate as to federal probationers.

Second, Congress should consider expanding probation eligibility.  While the low violation rates for federal probationers in part reflect the limited availability of the sentence, their success also suggests that probation might be expanded without serious risk to the public.  Federal judges have proven their ability to select the strongest candidates for supervision over incarceration, and Congress should give them the discretion to do so in more cases.  Revocation always remains a deterrent to violations – in fact, probationers received harsher sentences than reported by the Commission, perhaps to compensate for the leniency they were originally granted.

Finally, the Sentencing Commission should avoid repeating the same mistake in future research.  Probation and supervised release are not just conceptually distinct sentences, but also as a result of their legal differences apply to different populations in ways that impact empirical analysis.  If the Commission does not separate these populations when it studies federal sentencing data, then the much larger number of defendants on supervised release will overwhelm and conceal the outcomes for defendants on probation.

While I commend the Commission for casting light into this murky corner of the federal criminal justice system, it is important to correct the record on behalf of federal probationers and ensure their success does not remain a secret.

November 16, 2021 in Data on sentencing, Detailed sentencing data, Reentry and community supervision | Permalink | Comments (3)

Sunday, November 14, 2021

New US Sentencing Commission podcast discusses new Judiciary Sentencing INformation (JSIN) Tool

In this post two monts ago, titled "USSC releases interesting (but problematic?) new JSIN platform providing data on sentencing patterns," I reported on the release by the US Sentencing Commission of a new sentencing data tool for federal sentencing judges.  Though I have flagged in prior posts a few concerns about the construction and possible use of the Judiciary Sentencing INformation (JSIN) data tool in federal sentencing (see posts linked below), I still view JSIN as quite interesting and important data work by the USSC. 

The Sentencing Commission, on this webpage introducing JSIN, has provided an FAQ that explains the tool a bit.  But now one can also find on the USSC website this new podcast (called "Commission Chats") featuring a discussion of JSIN.  The short podcast (about 12 minutes) is described this way:

In this special episode, U.S. District Court Judge Charles R. Breyer, Acting Chair of the Commission, and Glenn Schmitt, Research and Data Director, discuss the origin and particulars of JSIN, the Commission's new online data tool developed specifically for sentencing judges. 

Though the podcast does not go much beyond a description of the basic elements of JSIN, it still makes for an interesting listen and Judge Breyer gives an explanation for some of the data choices reflected in JSIN.

Prior related JSIN posts:

November 14, 2021 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Friday, November 12, 2021

"Two Strikes and You’re in Prison Forever: Why Florida leads the nation in people serving life without chance of parole."

The title of this post is the headline of this important new reporting (and accounting) from the Marshall Project. I recommend the full piece, and here is a taste:

The number of people serving life-without-parole sentences has soared across the country in the last two decades, rising to 56,000, according to The Sentencing Project, an advocacy group.  Some people received these penalties as an alternative to capital punishment, which has fallen out of favor with many prosecutors and the public.  The number of death sentences dwindled to 18 last year, and only 2,500 people are now on death row, down from almost 3,600 two decades ago.

But there’s another reason for the increase: A handful of states have embraced life-without-parole sentences to punish “repeat offenders” — even if their crimes didn’t cause physical injury, an investigation by The Marshall Project and The Tampa Bay Times found.

Washington passed the first “three strikes” law in 1993, allowing prosecutors to give life sentences to people convicted even of nonviolent felonies if they met the criteria for “persistent offenders.”  At least two dozen states followed suit, including Florida in 1995.  In many states, people sentenced to life used to become eligible for parole after 15 years. But Florida and others virtually ended parole a generation ago, so that life sentences became permanent.

Today, Florida has more than 13,600 people serving life without parole, far more than any other state and almost a quarter of the total nationwide.  Though this sentence is widely seen as an alternative to the death penalty, which is used in murder cases, 44% of the people serving it in Florida were not convicted of that crime, according to our analysis of state data.

Part of the reason Florida’s numbers are so high is that it went further than any other state in 1997 by passing an unusual “two strikes” law known as the Prison Releasee Reoffender Act. The law directs prosecutors to seek the maximum sentence for someone who commits a felony within three years of leaving prison, which often means a lifetime behind bars. The law also takes sentencing discretion away from judges.  About 2,100 of the state’s permanent lifers, or about 15%, are in prison because of the law, our investigation found.  The crimes that netted life without parole included robbing a church of a laptop, holding up motel clerks for small amounts of cash and stealing a television while waving a knife....

The two-strikes punishment has been disproportionately applied to Black men, who account for almost 75% of those serving time because of the 1997 law, our analysis found; about 55% of all prisoners in the state are Black. Their most common charge was armed robbery, not homicide. Housing its life-without-parole population, including those locked up under the two-strikes law, cost Florida at least $330 million last year, according to our analysis of state data.

“This is an incredibly punitive law that is totally arbitrary,” said Jeff Brandes, a Republican who represents St. Petersburg in the Florida Senate and is trying to repeal the two-strikes law, so far without much support from his colleagues. He said Florida wastes too much taxpayer money locking people up forever on burglary, robbery and theft. “A sentence that is too long is just as unjust as a sentence that is too short,” he said.

The Marshall Project has this companion piece headlined "He Got a Life Sentence When He Was 22 — For Robbery: Black men are most affected by Florida’s two-strikes law." Here is a snippet:

The two-strike punishment has been disproportionately applied to Black men, an analysis of state data by The Marshall Project and Tampa Bay Times found. Among all prisoners serving life in Florida, 54% are Black; but among those serving life with enhancements like two strikes, 74% are Black.

In some counties, the racial disparities regarding sentence enhancements were glaring, the analysis found: In Leon County, home to the state capital of Tallahassee, among people serving life sentences for crimes committed within three years of release from prison, 96 of 107 were Black.  In Pinellas County, where Mackeroy grew up, 75% of prisoners serving life with two-strikes sentences are Black.

November 12, 2021 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Wednesday, November 10, 2021

BJS releases "Census of State and Federal Adult Correctional Facilities, 2019 – Statistical Tables"

Via email, I learned that the Bureau of Justice Statistics has released this new report providing a US correctional census with "data collected from state, federal, and private adult correctional facilities on the characteristics of facilities by type, operator, size, physical security level, capacity, court orders, and programs." This report provides a pre-COVID era snapshot o f US carceral realities, as decribed at the start of the 24-page report:

At midyear 2019, there were a total of 1,677 adult correctional facilities in the United States.1 Of these, 111 were operated by the Federal Bureau of Prisons (BOP), 1,155 were operated by state correctional authorities, and 411 were privately operated (table 1).  Confinement facilities made up 69% of all adult facilities, and community-based facilities made up the remaining 31% (figure 1).

Confinement facilities held about 95% of all prisoners reported at midyear 2019.  About 8 in 10 (83%) confinement facilities were operated by state authorities, and those facilities held a comparable percentage of prisoners in confinement facilities (82%) (figure 2).  About 2 in 3 (64%) community-based facilities were privately operated, and those private facilities housed about half (51%) of prisoners reported in community-based facilities at midyear 2019.

Statistics in this report are based on the 2019 Census of State and Federal Correctional Facilities (CCF).  The CCF covers adult correctional facilities operated by state departments of corrections, BOP, and private contractors in all 50 states, including the combined jail and prison systems in Alaska, Connecticut, Delaware, Hawaii, Rhode Island, and Vermont.

November 10, 2021 in Data on sentencing, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Thursday, October 28, 2021

"Federal Offenders Who Served in the Armed Forces"

Cover_armed-forcesThe title of this post is the title of this fascinating new report from the US Sentencing Commission released today.  This USSC webpage provides this overview and key findings:

The Department of Veterans Affairs estimates that there are more than 19 million Americans who are veterans. Over 10,000 veteran offenders were in the custody of the Federal Bureau of Prisons at the end of 2019, accounting for almost six percent of all BOP inmates.

This report provides an analysis of the relatively small number of veterans each year who are sentenced for a federal felony or Class A misdemeanor offense, most often committed well after they left military service.  In particular, the report examines federal offenders with prior military service who were sentenced in fiscal year 2019, the crimes they committed, and an assessment of whether that prior service was given special consideration at sentencing.

Key Findings

  • In fiscal year 2019, 4.4 percent of all U.S. citizens sentenced in the Federal courts for a felony or Class A misdemeanor had served in the military.  For these offenders, the average length of time between separation from the military and the sentence for the federal offense was 23 years.

  • The most common crime type committed by both veteran offenders and citizen offenders overall was drug trafficking (25.0% and 37.6%, respectively).  Veteran offenders, however, committed child pornography offenses more than four times as often as citizen offenders overall, 11.6 percent compared to 2.7 percent, and sex abuse offenses more than twice as often, 6.7 percent compared to 2.4 percent.

  • The sentences imposed on veteran offenders and citizen offenders overall were similar in terms of type of sentence imposed and average sentence imposed.  For veteran offenders, 79.2 percent received a sentence of imprisonment compared to 83.9 percent of all citizen offenders, and the average sentence for veteran offenders was 64 months compared to 62 months for all citizen offenders.

  • Although veteran offenders were more likely to be sentenced below the applicable guideline range (38.9% received a downward variance compared to 31.8% of all citizen offenders), military service does not appear to have a significant influence on the sentences imposed.  The court specifically cited an offender’s military service as a reason for the sentence imposed in only 15.0 percent of cases involving veteran offenders.

  • When the court did cite an offender’s military service as a reason for the sentence, it was almost always for service that the military had characterized as honorable.

  • Only two other offender characteristics were correlated with sentences where a court cited the offender’s military service as a reason.  Two-thirds (66.9%) of the offenders whose military service was cited by the court indicated that they had some history of mental health problems, compared to 51.1 percent for veteran offenders generally.  Also, more than half (54.8%) of the offenders whose service was cited by the court had served in a combat zone, compared to 22.6 percent for all veteran offenders.

October 28, 2021 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offender Characteristics | Permalink | Comments (0)

BJS releases "Federal Justice Statistics, 2019" with immigration and drugs dominating federal dockets

Via email this morning I learned of the release of this notable new data report from the Bureau of Justice Statistics titled simply "Federal Justice Statistics, 2019."  The email summarized the report this way:

This report, the 33rd in an annual series which began in 1979, provides national statistics on the federal response to crime. It describes case processing in the federal criminal justice system for fiscal year 2019, including—

  • investigations by U.S. attorneys
  • prosecutions and declinations
  • convictions and acquittals
  • sentencing
  • pretrial release
  • detention
  • appeals
  • probation and parole
  • prisons.

Findings are based on BJS’s Federal Justice Statistics Program (FJSP).  The FJSP collects, standardizes, and reports on administrative data from six federal justice agencies: the U.S. Marshals Service, Drug Enforcement Administration, Administrative Office of the U.S. Courts, Executive Office for U.S. Attorneys, Federal Bureau of Prisons, and U.S. Sentencing Commission.

Covering a period from Oct. 1 2018 to Sept. 30, 2019, this report captures the last full yearly snapshot of the federal criminal justice system before COVID hit in early 2020.  And, though federal data always reveal that the modern federal justice system is focused particularly on immigration and drug cases, these new data from the report still paint a notable picture of our federal criminal justice system in operation while highlighting how arrest patterns and sentencing patterns diverge for the two biggest crime categories:

During FY 2019, 8 in 10 federal arrests were for immigration, drug, or supervision violations (165,123). Immigration (117,425 arrests) was the most common arrest offense in FY 2019.  More than half (57%) of federal arrests involved an immigration offense as the most serious arrest offense.  The next most common arrest offenses were for drug offenses (12% of all arrests) and supervision violations (11%)....

In FY 2019, a total of 58,886 federally sentenced persons were admitted to federal prison.  Of these, 45,425 entered federal prison on U.S. district court commitments.  Another 13,461 persons were returned to federal prison for violating conditions of probation, parole, or supervised release, or were admitted for a reason other than a U.S. district court commitment.  In FY 2019, 21,075 persons entered federal prison for drug offenses, most of whom (15,574, or 74%) had been sentenced to more than 1 year.

In 2009 and 2019, most people in federal prison were serving time for a drug offense.  Persons with a drug offense as the most serious commitment offense made up 47% of the prison population at fiscal year-end 2019, down from 53% at fiscal year-end 2009.  Persons serving time for a weapon offense increased from 15% of the prison population in 2009 to 19% in 2019.  Persons serving time for a violent offense remained at 6% in 2009 and 2019, and persons serving time for an immigration offense decreased from 12% in 2009 to 6% in 2019.

October 28, 2021 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Offender Characteristics, Offense Characteristics | Permalink | Comments (0)

Monday, October 25, 2021

"Open Prosecution"

The title of this post is the title of this notable new paper now on SSRN authored by Brandon L. Garrett, William Crozier, Elizabeth Gifford, Catherine Grodensky, Adele Quigley-McBride and Jennifer Teitcher. Here is its abstract:

The U.S. Supreme Court has recognized, where the vast majority of criminal cases are resolved without a trial, that: “criminal justice today is for the most part a system of pleas, not a system of trials.”  While a plea, its terms, and the resulting sentence entered in court are all public, how the outcome was negotiated remains almost entirely nonpublic. Prosecutors may resolve cases for reasons that are benign, thoughtful, and well-calibrated; or discriminatory, self-interested, and arbitrary, with very little oversight or sunlight.

For years, academics and policymakers have called for meaningful plea-bargaining data to fill this crucial void.  In this Article, we describe opening the “black box” of prosecutorial discretion by tasking prosecutors with documenting detailed case-level information concerning plea bargaining.  This is not a hypothetical or conceptual exercise, but rather the product of theory, design, and implementation work by an interdisciplinary team.  We began collecting systematic data in two prosecutor’s offices, with a third to follow shortly.  We describe how the data collection system was designed, piloted, and implemented, and what insights it has generated.  The system developed can readily be adapted to other offices and jurisdictions.  We conclude by developing implications for prosecutors’ practices, defense lawyering, judicial oversight, and public policy.  Open prosecution has further constitutional and ethical implications, as well as still broader implications for democratic legitimacy.  An open prosecution approach is feasible, and, for the first time in the United States, it is in operation.

October 25, 2021 in Data on sentencing, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Friday, October 15, 2021

"Sentencing Commission Data Tool Is Deeply Flawed"

The title of this post is the headline of this new Law360 commentary by Michael Yeager which provides an important and critical discussion of the US Sentencing Commission's new JSIN sentencing tool.  This piece develops and details some of the concerns flagged here when JSIN was first released, and here are excerpts from the piece:

In some respects, [JSIN] an improvement from the Sentencing Commission's annual reports and past data tools. For example, past annual reports have provided an average of all fraud sentences; that method lumps all frauds together, whether they involve $1 million or $100 million.

JSIN is more focused than that and thus closer to the guidelines calculation that judges must actually perform at sentencing. But the most important numbers that JSIN reports — the average and median sentences for a particular position on the sentencing table — are inflated by a series of choices to exclude large chunks of the commission's own dataset.

First, JSIN excludes all sentences for cooperating witnesses, meaning cases in which the government filed and the court granted a Section 5K1.1 motion for a substantial assistance departure....

Second, JSIN includes mandatory minimum sentences, which by definition are not examples of how judges have exercised discretion. In fact, they're the opposite....

Third, and most important, JSIN excludes all nonimprisonment sentences: not just nonimprisonment sentences due to a Section 5K1.1 motion, or application of Section 5K3.1's safety valve, but rather all nonimprisonment.  That is, all sentences that are probation only, fine only, alternative confinement only (such as home confinement) or any combination of those options that doesn't also include prison time.

At positions on the sentencing table where the range is zero to six months, that means that JSIN is excluding sentences within the advisory range.  And even at many higher positions on the sentencing table, a substantial portion of cases are nonimprisonment.  Yet, JSIN excludes all of them from its averages and medians.

The effect of these choices can be dramatic. When JSIN is queried for stats on the position of the sentencing table for U.S. Sentencing Commission Section 2T1.1 — tax evasion, offense level 17 and criminal history I — JSIN reports the median sentence as 18 months.  But when one uses the commission's full dataset to calculate the median on that same cohort (Section 2T1.1, level 17, history I, no 5K1.1) and includes sentences of probation, the median is significantly lower.  Instead of JSIN's 18 months, the median is just 12 months. That's a whole six months lower — and a 33% decrease....

[B]y conducting a more complete study of the Sentencing Commission's data than the JSIN provides, the defense could also examine particular aspects of a guidelines calculation, such as loss or drug weight.  The defense could strip out mandatory minimum sentences or do an analysis of 10 or 15 years of cases, not just five.  They could also break down cases by circuit or district, not just nationally.  Now that JSIN is available, defense attorneys should consider all the above.  It was already a good idea to use accurate and complete data analysis of similarly situated defendants. But now the need has increased. The defense now has to counter JSIN and the false impression it creates.

Prior related JSIN posts:

October 15, 2021 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)

Wednesday, October 13, 2021

Coverage and commentary as 100th guilty plea entered for federal charges in January 6 riots

Zoe Tillman at BuzzFeed News has an impressive extended report with all sorts of linked documents to chronicle pleas entered so far on federal charges stemming from the January 6 riot at the US Capitol.  This main article is fully  headlined: "100 Capitol Rioters Have Pleaded Guilty. Here’s What Their Cases Show About The Jan. 6 Investigation.  Guilty pleas are stacking up. Here’s what rioters are admitting to, and what they and the government are getting out of these deals."  Here is a snippet:

One hundred is an arguably arbitrary number, since the total number of people charged with participating in the riots keeps growing and prosecutors haven’t announced a target for when the investigation will end. The FBI has hundreds of photos posted online of people they’re still trying to identify.

But 100 is a nice round number, and a large enough pool to understand the deals that prosecutors have offered in the months since the attack on the Capitol, who is taking them, and what both sides are getting in return.  BuzzFeed News is publishing a database of documents filed in connection with these pleas, including the agreements that outline the terms and separate statements of the criminal conduct that defendants are admitting to....

Defendants taking early deals are avoiding the greater legal risk and public exposure they’d face if they went to trial; they’re hoping to walk away with little to no time behind bars.  Prosecutors are securing a steady stream of convictions as they continue to track down more suspects and defend against legal challenges to some of the more complex cases they’ve already brought.

Judges, meanwhile, are using some of their final encounters with rioters at plea hearings and sentencings to denounce the post-election conspiracy theories that motivated the riots and the right-wing rhetoric downplaying the severity of what happened at the Capitol in the months that followed.  They’ve insisted defendants fully admit the role they played — not just the individual criminal activity they’re pleading guilty to, but also enabling the attack on Congress and bolstering Trump’s effort to disrupt the peaceful transfer of power after he lost in November.

This companion article, headlined "How To Read The Capitol Riot Plea Deals: A judge accepted the 100th guilty plea in the Jan. 6 cases on Wednesday," provides a nice primer on how to understand the particulars of all the federal filings in these cases.

And, somewhat relatedly, Carissa Byrne Hessick has this effective new Lawfare piece titled "Are the Jan. 6 Plea Deals Too Lenient?".  Here is its concluding paragraph:

In short, it may be too soon to judge how federal prosecutors are using their plea bargaining leverage in the Jan. 6 cases.  Only a small fraction of those cases have resulted in guilty pleas at this point.  And it appears that so far the government has been prioritizing those defendants who did little more than enter the Capitol, walk around and leave. More generally, defendants who plead guilty sooner tend to get shorter sentences than those who plead guilty later. In fact, some prosecutors make “exploding” plea offers that expire if a defendant takes too long to plead guilty.  All of these factors suggest that the bulk of the Jan. 6 defendants may end up receiving far less lenient plea bargains than we’ve seen so far.  Although it seems like a safe prediction that other Jan. 6 defendants will get lenient plea deals, whether that is what actually happens is in the hands of the government.  When it comes to plea bargaining, prosecutors hold all the cards, and so while a handful of Jan. 6 defendants may choose to go to trial, prosecutors will get to dictate what the guilty pleas look like for the rest of them.

Some of many prior related posts:

October 13, 2021 in Celebrity sentencings, Data on sentencing, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

US Sentencing Commission issues new report on "Federal Sentencing of Child Pornography: Production Offenses"

Back in June 2021, as detailed in this post, the US Sentencing Commission released this big report, running nearly 100 pages, titled "Federal Sentencing of Child Pornography: Non-Production Offenses."  A follow-up report, running "only 72 pages" was released today here under the title "Federal Sentencing of Child Pornography: Production Offenses."  This USSC website provides some "key findings" from the report, and here are some of those findings:

Prior recent related post:

US Sentencing Commission issues big new report on "Federal Sentencing of Child Pornography: Non-Production Offenses" 

October 13, 2021 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (0)

Tuesday, October 12, 2021

What do we know about JSIN and its use in federal sentencing proceedings two weeks after its release?

In this post two weeks ago, titled "USSC releases interesting (but problematic?) new JSIN platform providing data on sentencing patterns," I reported on the release by the US Sentencing Commission of a new sentencing data tool for federal sentencing judges. The Judiciary Sentencing INformation (JSIN) data tool is described this way by the USSC:

The Judiciary Sentencing INformation (JSIN) platform is an online sentencing data resource specifically developed with the needs of judges in mind.  The platform provides quick and easy online access to sentencing data for similarly-situated defendants.  JSIN expands upon the Commission’s longstanding practice of providing sentencing data at the request of federal judges by making some of the data provided through these special requests more broadly and easily available....
JSIN provides cumulative data based on five years of sentencing data for offenders sentenced under the same primary guideline, and with the same Final Offense Level and Criminal History Category selected.

I mentioned in my prior post that JSIN seemed relatively easy to navigate and quite useful, but I also expressed concern that the JSIN tool was possibly constructed with built-in and systemic "severity biases" due to certain data choices.  I keep hoping some others might soon write about JSIN and the role it could or should play in federal sentencings, but to date I have seen no press coverage or any other commentary about JSIN.  I have heard some positive review from a few federal district judges, though that may just reflect the tendency of all thoughtful sentencing judges to find any and all additional sentencing data to be helpful to their work.

Given that well over 1000 persons are sentenced ever average week in the federal sentencing system, I am now wondering if the USSC or anyone else is collecting any data on whether and how JSIN is being used in current federal sentencings.  Are any probation offices including JSIN data in presentencing reports?  Are federal prosecutors and defense attorneys using JSIN data in sentencing briefs and arguments?  Are federal sentencing judges referencing JSIN data in their sentencing decision-making?

October 12, 2021 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)

Tuesday, October 05, 2021

"But What Does It Mean? Defining, Measuring, and Analyzing Desistance From Crime in Criminal Justice"

The title of this post is the title of this new NIJ-published chapter authored by Michael Rocque.  Here is part of its executive summary

Research on crime over the course of an individual’s life has increased in the last 30 years both in scope and specificity.  One focus area that has emerged from this work is what scholars call “desistance from crime.”  Generally, desistance is understood to mean the reduction in criminal behavior that occurs after a person reaches adulthood.

But exactly what desistance is remains unclear, as varying definitions and measurement strategies have evolved over time. Early scholarship tended to view desistance as an event — that is, the termination of offending or end of a criminal career.  More recent definitions suggest that desistance is instead a process by which criminality declines over time.  Because inconsistent definitions lead to varying measurement strategies, it is difficult to come to conclusions about desistance.

The overall goal of this white paper is to provide grounded recommendations for policy and practice.  To do that, the paper reviews definitions of desistance used in the literature and then offers an updated, theoretically grounded definition as a foundation for future work: Desistance is “the process by which criminality, or the individual risk for antisocial conduct, declines over the life-course, generally after adolescence.”

The paper discusses how researchers have measured and modeled desistance and explores the implications of these strategies.  Which ways of measuring desistance get closest to the phenomenon of interest?  Which are most likely to advance our understanding of why people exit a criminal life and how we can facilitate that process?  These guiding questions provide a framework for the paper.

Finally, this white paper provides an overview of unresolved issues — such as the choice between surveys and official records, quantitative and qualitative methods, types of samples, and various modeling techniques — and offers detailed recommendations for policymakers, practitioners, and scholars who are seeking to examine and promote desistance from crime.

October 5, 2021 in Data on sentencing, Reentry and community supervision | Permalink | Comments (0)

Thursday, September 30, 2021

Examining "life-or-death lottery for thousands of federal inmates" from compassionate release

Ai2html-graphic-desktop.93a75d10This lengthy new CNN article, Headlined "Compassionate release became a life-or-death lottery for thousands of federal inmates during the pandemic," takes a deep dive into the realities of compassionate release processes and outcomes. Here are excerpts:

Judge Danny Reeves ... has denied compassionate release motions from at least 90 inmates since the beginning of the coronavirus pandemic, a CNN review of court records found. In Reeves' district, the Eastern District of Kentucky, judges granted about 6% of compassionate release motions in 2020 and the first half of 2021, according to data released by the US Sentencing Commission this week. In some judicial districts, the approval rate was even lower.

But elsewhere in the country, compassionate release is a different story: Nearly 50% of compassionate release motions decided by the federal court in Massachusetts and more than 60% decided by the court in Oregon were approved during the same time period -- including some for inmates with far less serious medical conditions.... [The image shows darker colors based on percentage of motions for compassionate release that were granted, by judicial district.]

Federal judges in all of these districts are applying the same laws, which allow compassionate release in "extraordinary and compelling" cases. But those wide disparities show that whether defendants get released early during the pandemic has had almost as much to do with which courts are hearing their motion as it does with the facts of their cases, legal advocates and researchers say.

The compassionate release process, expanded by Congress in a landmark 2018 criminal justice reform bill, has acted as a safety valve for the federal prison system during the pandemic, with more than 3,600 inmates being released in 2020 and the first half of 2021. But it has given judges broad discretion to interpret which sentences should be reduced, leading to a national patchwork of jarringly different approval rates between federal courts.

The reasons behind the disparities have to do with variations in sentence length and legal representation for inmates, as well as differing approaches between more liberal and conservative judges, according to interviews with more than a dozen lawyers, advocates and experts studying compassionate release.

More broadly, the percentage of motions granted nationwide has fallen this year, as judges and Department of Justice lawyers have been pointing to inmates' vaccination status as a reason to oppose their release. "Judges are looking at the same law and policy but interpreting it differently," said Hope Johnson, a researcher with the UCLA School of Law who's studied compassionate release cases. "There's an arbitrariness in the way these decisions are being made."...

Overall, 17.5% of compassionate release motions were granted in 2020 and the first six months of 2021, newly released sentencing commission statistics show. But that rate ranged from a low of 1.7% in the Southern District of Georgia, where all but four of 230 motions were denied, to a high of 77.3% in the District of Puerto Rico, where 17 of 22 motions were granted.

Judge Charles Breyer, the only current member of the sentencing commission, said in an interview that he thought the lack of updated compassionate release guidelines was exacerbating the wide disparities between districts. He said he would like the commission to pass a new standard urging judges to take "the pernicious effect of Covid" into account in deciding compassionate release cases. "You need a national standard," Breyer told CNN, adding that without one, "it creates a vacuum and it creates uncertainty, and most importantly it creates disparity."

September 30, 2021 in Data on sentencing, Detailed sentencing data, FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

TRAC releases intriguing new report on "Equal Justice and Sentencing Practices Among Federal District Court Judges"

The Transactional Records Access Clearinghouse (TRAC) at Syracuse University is a research center that keeps track of a lot of federal criminal case processing data. Today TRAC released this notable short data report under the title "Equal Justice and Sentencing Practices Among Federal District Court Judges." Here are snippets from the start and end of the report:

This report examines very recent data on federal trial judges and their sentencing practices. The existence of judge-to-judge differences in sentences of course is not synonymous with finding unwarranted sentencing disparity....  But a fair court system always seeks to provide equal justice under the law, working to ensure that sentencing patterns of judges not be widely different when they are handling similar kinds of cases.

In reality, sometimes the goal of equal justice under the law is achieved, and other times the actual sentences handed down depart markedly from this goal. Using case-by-case, judge-by-judge, data updated through December 2020, a new analysis by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University identifies federal courthouses where wide judge-to-judge sentencing differences currently occur, and courthouses where there is wide agreement in sentencing among judges.

While special circumstances might account for some of these differences, half of the courthouses in the country had median differences in prison sentences of 16 months or more, and average differences of 21 months or more.

Results further showed that currently seven (7) federal courthouses out of 159 compared had perfect agreement among judges in the typical or median sentences assigned. In an additional thirty (30), judge-to-judge sentences differed by six months or less.... At the other extreme, five (5) courthouses showed more than 60 months difference in the median prison sentence handed out across judges serving on the same bench....

This study largely replicates the findings from TRAC's first national judge-by-judge examination of the differences among federal judges in sentencing practices that appeared in the Federal Sentencing Reporter. That study was published almost a decade ago. While it is true that some specific courthouses show greater agreement today, others show less agreement. Many of these changes appear to reflect changes in the judges currently serving there.

Yet answering the question of whether significant intra-judge differences in sentencing practices exist is not sufficient to establish that such differences are indeed unwarranted sentencing disparities. Much more research and a great deal more time is needed for a thorough examination of the actual details of judge-by-judge sentencing patterns.

September 30, 2021 in Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Tuesday, September 28, 2021

USSC releases interesting (but problematic?) new JSIN platform providing data on sentencing patterns

Jason-voorhees-friday-the-13th_1I had heard rumors that the US Sentencing Commission was working on a new sentencing data tool for federal sentencing judges, and today the USSC unveiled here what it calls the Judiciary Sentencing INformation (JSIN).  Here is how the USSC generally describes JSIN (which is called "jason" in the helpful video the USSC has on its site):  

The Judiciary Sentencing INformation (JSIN) platform is an online sentencing data resource specifically developed with the needs of judges in mind.  The platform provides quick and easy online access to sentencing data for similarly-situated defendants.  JSIN expands upon the Commission’s longstanding practice of providing sentencing data at the request of federal judges by making some of the data provided through these special requests more broadly and easily available....

JSIN provides cumulative data based on five years of sentencing data for offenders sentenced under the same primary guideline, and with the same Final Offense Level and Criminal History Category selected.  

This all sounds great and interesting, and JSIN seems relatively easy to navigate and quite useful until one notices these notable data choices spelled out in the FAQ provided by the USSC (with my emphasis added):

After excluding cases involving a §5K1.1 substantial assistance departure, JSIN next provides a comparison of the proportion of offenders sentenced to a term of imprisonment to those sentenced to a non-imprisonment sentence....

JSIN reports the average and median term of imprisonment imposed in months for cases in which a term of imprisonment was imposed. Probation sentences are excluded.

Though I am not a data maven, I can understand the general logic of excluding the 5K and probation cases from the JSIN data analysis. But, perhaps because I am not a data maven, I greatly fear that these data exclusion choices result in the JSIN platform being systematically skewed to report statistically higher average and median terms of imprisonment.  For example, if 94 imprisonment cases have an average prison term of, say, 50 months and 6 more cases were given probation, I think the true average sentence is 47 months, but JSIN is seemingly built to report an average of 50 months.  Though less predictable, I fear the exclusion of 5K cases also may create a kind of severity bias in the data reporting.

IN addition, I did not see any way to control for the application of mandatory minimum statutes, which also serve to skew judicial sentencing outcomes to be more severe.  If a case have a guideline range of 30 for a first offender, meaning a range of 97-121 months under the guidelines, but a 10-year mandatory minimum applies, the judge is duty-bound to impose a sentence of at least 120 months even if he might want to give 97 months or something a lot lower.  If that sentence of 120 months is treated in the averages like every other sentence, it looks like the judge wanted to give the top of the guideline range even though he gave the lowest sentence allowed by law.  In other words, without controlling for the distorting impact of mandatory minimums, these averages may not really reflect judicial assessments of truly justified sentencing outcomes but rather averages skewed upward by mandatory minimums.

I am not eager to beat up on the USSC for creating a helpful and easy-to-use data tool and for making this tool accessible to everyone online.  And I am hopeful that the exclusions and mandatory minimum echoes may only impact the data runs in relatively few cases and only a small amount.  But even if the impact is limited, I think it quite worrisome if this JSIN tool has a built-in and systemic "severity biases" due to its data choices.  If it does, when hear about JSIN, I am not going to imagine the heroic Jason Bourne, but rather the nightmarish Jason Voorhees.

September 28, 2021 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4)

Thursday, September 23, 2021

Notable new report spotlights onerous nature of electronic monitoring in US

This new NBC News piece, headlined "Other than prison, electronic monitoring is 'the most restrictive form' of control, research finds" report on this interesting new report from folks at George Washington University Law School, titled "Electronic Prisons: The Operation of Ankle Monitoring in the Criminal Legal System."  Here are excerpts from the press piece:

In the past 18 months, as the judicial system has increasingly used electronic monitoring instead of prisons to monitor inmates through the coronavirus pandemic, newly released data confirm what activists and advocates have long argued: Ankle monitors are onerous, and they often subject wearers to vague rules, like avoiding people of “disreputable character.”  The ankle monitoring business, the research found, is also dominated by four profit-seeking companies, and it ultimately could drive more people back to prison.

The new, comprehensive collection of hundreds of electronic monitoring-related rules, policies and contracts, obtained through public records requests across 44 states, demonstrates that four companies that make millions of dollars a year account for 64 percent of the contracts examined in the study.  The companies — Attenti, BI Inc., Satellite Tracking of People LLC and Sentinel Offender Services LLC, according to the report — also keep location data indefinitely, even after monitoring is completed, which is within the law.  Governments also often require family members or employers to act as agents of the government and report potential violations, putting them in an awkward position in which they must be both supportive and supervisory.

Crucially, wearers must pay both one-time and ongoing fees for the monitors, which can be $25 to over $8,000 a year.  The report argues that such costs “undermine financial security when it is needed most.”  By comparison, the Justice Department’s Bureau of Prisons said in 2018 that it costs just under $100 per day to incarcerate a federal inmate, or over $36,000 a year....

“This is a form of incarceration that happens outside of prison walls,” said Kate Weisburd, an associate professor of law at George Washington University, who led a team of 10 law students that filed and analyzed the trove of documents . “It’s always intended to be a positive alternative to incarceration.  But based on what we found, it’s doing the opposite.  More rules and more surveillance generally leads to higher incarceration.”...

Put another way, people on monitors are subject to a vast number of government rules, which “makes compliance difficult,” according to the report.  Some of the rules are quite vague.  For example, the Alabama Bureau of Pardons and Parole mandates that wearers “shall abandon evil associates and ways,” while the New Mexico Corrections Department says parolees must “maintain acceptable behavior.”...

Weisburd’s research found that because the results are open to interpretation and wearers can be hit with “technical violations” of the rules, “people are more likely to be reincarcerated for minor infractions that previously would have been invisible and ignored.”  In most cases, electronic monitoring is coupled with a form of house arrest — wearers must stay at or near their homes for a certain amount of time. They cannot leave without permission in advance.  But according to the policies and contracts that Weisburd and her team obtained, most agencies do not clearly explain how far in advance such permission must be sought. “Basically, every record we looked at had a negative impact, and by every measure it undermines people’s ability to survive outside of prison,” she said. “Just having to comply with the sheer number of rules, vague and broad rules, it means people are getting dinged more easily.”...

The most recent data from the Pew Charitable Trust, released in 2016, found that about 131,000 people were on monitors during a single day.   Weisburd and her team say in the report that “it is likely that the numbers are higher considering the pressure to release people from incarceration because of the pandemic.”...  The frequency with which such monitoring is assigned varies wildly across the country.  For example, Weisburd’s research shows that over 11,000 people who are on probation are also on monitors in Marion County, Indiana, alone, while the entire state of Florida has less than half that number, at just over 5,400.

Here is the introduction of the 54-page report:

The use of surveillance technology to tag and track people on pretrial release, probation and parole is on the rise.  The COVID-19 crisis in prisons and jails, bail reform efforts and bipartisan support for curbing mass incarceration accelerated interest in purported alternatives to incarceration.  As a result, the use electronic monitoring devices, including GPS-equipped ankle monitors, went up dramatically.

Thanks to the leadership of community organizers and advocates, the harmful and racialized nature of this type of carceral surveillance has been exposed.  This report seeks to add to those efforts by examining the specific policies, procedures, contracts and rules that govern the use of electronic monitoring of people on probation, parole and pretrial release.  Drawing on over 247 records from 101 agencies across 44 states and the District of Columbia, this report focuses on the operation of electronic monitoring and reveals the degree to which monitoring impacts all aspects of everyday life and undermines the ability of people to survive and thrive.  In particular, this report focuses on the specific rules and policies governing people on monitors and how they restrict movement, limit privacy, undermine family and social relationships, jeopardize financial security and result in repeated loss of freedom.  Unlike traditional models of probation and parole, electronic surveillance is more intensive, restrictive and dependent on private surveillance companies that are driven by profit motive.  The findings in this report demonstrate what advocates have long said: Electronic surveillance is not an alternative to incarceration, it’s an alternative form of incarceration.  And like incarceration, the deprivations and restrictions of electronic monitoring further entrench race and class-based subordination.

September 23, 2021 in Criminal Sentences Alternatives, Data on sentencing, Race, Class, and Gender, Reentry and community supervision, Technocorrections | Permalink | Comments (1)

Monday, September 20, 2021

Two notable new Forbes pieces on the state of federal sentencing and clemency practices

Though both piece merit their own posts, a busy time means I have to combine my coverage of two recent Forbes piece that are worth full reads.  I will be content with a link and a paragraph to whet appetites:

From Brian Jacobs, "The U.S. Sentencing Commission’s Inadequate Response To Covid-19":

For the past 18 months, federal courts have grappled with the impact of Covid-19 on sentencing proceedings, and a curious disparity has emerged.  On the one hand, anecdotal evidence suggests that federal judges are imposing more lenient sentences in recognition of how the pandemic has made imprisonment harsher and more punitive than in the past. On the other hand, reports available from the U.S. Sentencing Commission tell a different story — at least for now — suggesting that courts have to a great extent ignored the pandemic when imposing sentence.  I have written in the past (here and here) about how the body of sentencing law is effectively hidden from public view (as it exists primarily in court transcripts).  This dearth of readily accessible sentencing law is particularly problematic during the Covid-19 pandemic, as courts are grappling with novel issues in hundreds of cases.  The U.S. Sentencing Commission is uniquely positioned to fill this gap, but so far has largely failed to do so.

From Walter Palvo, "Biden Considering Options To Avoid Returning Federal Inmates To Prison Post Covid-19":

The Biden administration’s Department of Justice has started sending out applications to inmates at home under the CARES Act for consideration of a presidential clemency. To be eligible, the inmate must be home under CARES Act, have been convicted of a drug offense and have 4 years or less remaining in their sentence. I spoke with Amy Povah who runs the non-profit Can Do for Clemency program to help prisoners achieve freedom from federal prison through changing laws and clemency. “President Biden has been handed an easy political gift. There are 4,000 inmates functioning in society, obeying the laws, bonding with family and held accountable for their past actions. There is no better group vetted to be given clemency than this group of CARES Act inmates.

September 20, 2021 in Data on sentencing, Federal Sentencing Guidelines, Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Thursday, September 16, 2021

US Sentencing Commission releases FY 2021 third quarter sentencing data showing COVID's continued (but reduced) impact on federal sentencings

I just noticed that the US Sentencing Commission this week published here its latest quarterly data report which is described as a "3rd Quarter Release, Preliminary Fiscal Year 2021 Data, Through June 30, 2021."  These new data provide another official accounting of how COVID challenges continued to reduce the usual total number of federal sentences imposed, though in the latest quarter we are seeing a return almost to pre-pandemic norms. 

Specifically, as reflected in Figure 2, in pre-pandemic years, quarterly cases sentenced generally averaged around 17,000 to 19,000.  But in the three quarters closing out 2020, amid the worst early periods of the pandemic, there were only between about 12,000 and 13,000 cases being sentenced each quarter.  In the most recent quarter report, which ran from April 1 to June 30, 2021, about 15,000 cases were sentenced in federal court.  Figure 2 also shows that major declines in the total number of immigration cases sentenced are what primarily accounts for the decrease in overall federal cases sentenced.  For the other big federal case categories -- Drug Trafficking, Firearms and Economic Offenses -- the total number of cases sentenced in recent quarters are not off that much from recent historical norms.

Consistent with what I noted in this prior post about pandemic era USSC data, these data show an interesting jump in the percentage of below-guideline variances granted in the last four quarters (as detailed in Figures 3 and 4).  But I remain unsure if these data reflect significantly different behaviors by sentencing judges over the last year or is just primarily a product of the altered mix of cases now that the number of immigration cases being sentenced has declined dramatically.

Prior recent related post:

September 16, 2021 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Impact of the coronavirus on criminal justice | Permalink | Comments (0)

Tuesday, September 07, 2021

"Life lessons: Examining sources of racial and ethnic disparity in federal life without parole sentences"

The title of this post is the title of this notable new article published in Criminology and authored by Brian Johnson, Cassia Spohn and Anat Kimchi.  Here is its abstract:

Alongside capital punishment, sentences to life without the possibility of parole are one of the most distinctive aspects of the American system of criminal punishment.  Unlike the death penalty, though, almost no empirical work has examined the decision to impose life imprisonment.  The current study analyzes several years of recent federal sentencing data (FY2010–FY2017) to investigate underlying sources of racial disparity in life without parole sentences.  The analysis reveals disparities in who receives life imprisonment, but it finds these differences are attributable mostly to indirect mechanisms built into the federal sentencing system, such as the mode of conviction, mandatory minimums, and guidelines departures.  Both Black and Hispanic offenders are more likely to be eligible for life sentences under the federal guidelines, but conditional on being eligible, they are not more likely to receive life sentences.  Findings are discussed in relation to ongoing debates over racial inequality and the growing role that life imprisonment plays in American exceptionalism in punishment.

September 7, 2021 in Data on sentencing, Federal Sentencing Guidelines, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

Noting that, with fewer executions, those on death row are growing even older

This new piece at The Crime Report authored by Maria DiLorenzo, which is titled "Growing Old on Death Row," highlights that many of those on death row these days are really serving a sentence of "a long confined aged" life behind bars.  Here are excerpts:

In the 36 years that David Carpenter has been on death row at San Quentin State Prison in California, his routine has rarely changed. He awakens early in the morning and exercises, despite suffering from arthritis, in the cramped space of his single-bunk cell before eating breakfast.  Three days a week, he has access to a yard outside.

Once a month he attends a church service, one of the few activities that allows him time out of his cell, aside from medical appointments and visiting with friends and family, which he used to do regularly prior to COVID restrictions that have made the prison more isolated.  But most of the time, he stays inside his cell, which he’s grateful he does not have to share with anyone else. “I control my lights,” he tells The Crime Report in an interview via snail mail.  “I have my 15-inch color television.  I can go to sleep when I want to at night, take a nap during the day, and write letters and read when I want to.  I have the freedom in a single cell that I would not have in a two-man cell.”

At the age of 91, there’s one other thing he can be grateful for.  In 2019, California Gov. Gavin Newsom suspended capital punishment. As long as Newsom remains governor, executions will not occur, which has effectively given Carpenter a lease on life.  He is keenly aware of the irony.  “Because no one has been executed in California, death row inmates (in this state) have grown older with each passing year,” he acknowledged in his note to The Crime Report. “If California was like Texas, [which] executes people shortly after being found guilty and [sentenced to death] I would have been executed years ago.”

In 1984, Carpenter, also known as The Trailside Killer, was sentenced to death for shooting and killing two women.  Then, in 1988, he was found guilty of murdering five women, raping two others, and attempting to rape a third.  He was later tried and convicted of two additional murders and an attempted murder....

Carpenter, now one of the oldest individuals awaiting execution in the U.S., belongs to a growing segment of the prison demographic. In 2019, according to the Death Penalty Information Center, some 574 prisoners on death row in the U.S. were aged 60 or over. In 1996 that figure was just 39....

Some 1,200 of the 2,800 inmates awaiting execution are aged 50 and over.  Demographic trends suggest that over-50 population will increase, as America’s death rows are increasingly transformed into high-cost homes for senior citizens....  [A]s courts scrutinize details of appeals, men and women condemned to death are not only growing old, but becoming afflicted with dementia or other disabling diseases of age.  Since 2000, 11 death row inmates ranging in age from 65 to 77 have been executed.  Some, according to scholars.org, ‘were disabled, demented, or both.”

And as more states reject or sidestep capital punishment, the issue of what do with aging prisoners on death row presents a dilemma with moral, constitutional and economic dimensions.  Some critics argue that keeping ailing and enfeebled individuals behind bars―some with no memory of the crime they are in for ― is a violation of the Eighth Amendment prohibition against cruel and unusual punishment.

But it also raises questions about whether a system in which capital punishment is invariably accompanied by a long appeals process that leaves people to grow old on Death Row makes sense. “One way is just to substitute life without parole for death,” Fox told The Crime Report. “You keep them off the street, which is the desire that people have, and keep them in prison longer… I understand that people are worried about the cost, (but) death row trials are very expensive. They’re longer, they have more witnesses, more experts.”

It is not quite right to say that Texas executes people shortly after they are found guilty.  This website listing the next eight Texas execution dates (one of which is tomorrow) reveals that all eight of these condemned men have been on death row for more than a decade and a few have been there for a quarter century or longer.  Still, with California having over 700 persons on its death row, while not having completed a single execution in over 15 years, it is fitting that someone like The Trailside Killer from the Golden State is the featured focal point for a discussion of aging on death row.

September 7, 2021 in Data on sentencing, Death Penalty Reforms, Offender Characteristics, Prisons and prisoners | Permalink | Comments (2)

Wednesday, September 01, 2021

"More Community, Less Confinement: A State-by-State Analysis on How Supervision Violations Impacted Prison Populations During the Pandemic"

The title of this post is the title of a great new analysis by the Council of State Governments Justice Center looking at prison populations as impacted by the pandemic and reactions thereto.  This press release provides this overview (and helpful links at the end):

State prison populations shrank by an unprecedented 14 percent in 2020 due to changes spurred by the COVID-19 pandemic, according to new data released today by The Council of State Governments (CSG) Justice Center.  The study, More Community, Less Confinement, was conducted in partnership with the Correctional Leaders Association (CLA) and with support from Arnold Ventures.
 
Despite the decline in total prison population, supervision violations still drive a substantial share of new admissions — accounting for 42 percent of prison admissions in 2020. This included roughly 98,000 people admitted to prison for technical violations, such as missed curfews or failed drug tests.  The share of the population in prison for supervision violations was 20 percent in 2020, down slightly from 23 percent in 2018.
 
“As these data underscore, during the COVID-19 pandemic, probation and parole agencies made significant changes to the way they do business. These changes protected the health and safety of people in the justice system, including corrections staff,” said Megan Quattlebaum, director of the CSG Justice Center.  “Now, we have a unique and important opportunity to explore which of these policy changes should be retained to maximize success for people serving on community supervision.  Each of the 98,000 people admitted to prison—not for new crimes, but for violating the conditions of their probation or parole — represents 98,000 opportunities to improve public safety while saving states money. When people on probation and parole succeed, it is a win-win-win for them, their communities, and all taxpayers.”
 
In response to the threat of COVID-19, many parts of the criminal justice system halted operations to reduce in-person contact and prevent the spread of the virus.  The CSG Justice Center surveyed corrections leaders in all 50 states to understand the impact of community supervision on state prison populations. The resulting data span 3 years — from 2018 to 2020 — and uncover how the number of people sent to prison for supervision violations changed during and prior to the pandemic. 
 
While some states released people from prisons early to help reduce spread of the virus, the population decline in state prisons was largely driven by a drop in the number of people being admitted to prisons.  Roughly 200,000 fewer people were admitted to prison in 2020 due to changes in offending behaviors, local law enforcement, community supervision, and court operations....
  
Overall, there were roughly 167,000 fewer people in state prisons in 2020. One-third of the total drop (57,000 people) was due to fewer people sitting in prison for supervision violations. In addition, about 73,000 fewer people entered prison for supervision violations in 2020 — a 30 percent drop in a single year.  The cumulative result over this 3-year data collection effort showed that there were 31 percent fewer people in prison for technical supervision violations and 18 percent fewer people in prison for new offense violations, while all other populations (primarily new court commitments) dropped just 12 percent....
 
Learn more:

September 1, 2021 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (0)

Monday, August 30, 2021

Justice Counts officially unveils its new 50-State scan of all sorts of criminal justice data

7ee4529a-2a57-c490-a090-f44255823417I have previously blogged about the need for better national criminal justice data, and also about a new effort to fill data gaps by the Council of State Governments (CSG) Justice Center through a project called "Justice Counts."  (Some of many posts on these topics can be found below.)  I was pleased this morning to get a new email about the CSG effort under the heading "Justice Counts Unveils a New 50-State Scan of Criminal Justice Data."  This email is available at this link, and here is some of its texts and links:

Policymakers are often forced to make critical decisions using limited or stale criminal justice data.  Over the past year, every trend from crime to revocations has shifted quickly and dramatically.  Facing significant challenges, state leaders need up-to-date information from across the justice system, presented in a digestible way.

As part of the Bureau of Justice Assistance’s Justice Counts initiative, researchers from Recidiviz and The Council of State Governments Justice Center conducted a 50-state scan of publicly available, aggregate-level corrections and jails data.

The national dashboard demonstrates that while policymakers in several states have access to up-to-date information, data collection still has a long way to go. 

View the national dashboard

Each state’s data dashboard provides a central, practical resource for stakeholders to identify gaps and inconsistencies in data reporting.
 
View your state’s dashboard
 
The scan looked at the availability of eight core corrections indicators scattered across hundreds of agency reports, as well as a review of statewide and county jail confinement rates across all 50 states.  The scan shows how much — and how little — state policymakers have to work with.

Recent related posts:

August 30, 2021 in Data on sentencing, Detailed sentencing data, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Wednesday, August 18, 2021

Authors of provocative paper retract judge-specific claims about "most discriminatory" federal sentencing judges

I expressed concerns in this post last month about a new empirical paper making claims regarding the "most discriminatory" federal sentencing judges under the title "The Most Discriminatory Federal Judges Give Black and Hispanic Defendants At Least Double the Sentences of White Defendants."  In addition to articulating some first-cut concerns in my initial post, I also solicited and published here an extended post by Prof. Jonah Gelbach about the work based on this Twitter thread criticizing the paper.  

This new Twitter thread by one of the authors reports that the paper has now been revised to remove judge-specific claims as to the "most discriminatory" sentencing judges, and it is now re-titled "Racial Disparities in Criminal Sentencing Vary Considerably across Federal Judges."  This new New Jersey Law Journal article, headlined "Backpedaling: Authors of Study on Racist Rulings Retract Their Claims Against Pennsylvania, New Jersey Judges," provides some more details:

The authors of a study that accused some federal judges of extreme racial and ethnic bias in sentencing have withdrawn their conclusions about specific jurists following criticism of their methodology.

An earlier version of the study, published in July by the Institute for the Quantitative Study of Inclusion, Diversity and Equity, said two Eastern District of Pennsylvania judges and one from New Jersey give Black and Hispanic defendants sentences that are twice as long as those they give to whites.

But a revised version of the study, posted Tuesday, asks readers to disregard the references to specific judges....  “A previous version of this work included estimates on individually identified judges. Thanks to helpful feedback, we no longer place enough credence in judge-specific estimates to make sufficiently confident statements on any individual judge.  We encourage others not to rely upon results from earlier versions of this work,” the revised version of the study said.

The study’s lead author, Christian Michael Smith, explained on Twitter that, “while our initial paper appreciated how random chance, systematic missing data patterns, and/or hidden structural factors for sentencing could affect judge rankings, we now regard the following possibility as less remote than we initially regarded it: that a judge who is actually unproblematic could end up on the extreme end of our discrimination estimates, due to random chance, systematic missing data patterns, and/or hidden structural factors for sentencing.”...

Gelbach, in an email, said of the retraction, ”I applaud the authors for removing the ranking of judges’ sentencing practices and for making clear that people should not rely on those rankings. Given the data limitations, that was the right decision for them to make.”

Prior related posts:

August 18, 2021 in Data on sentencing, Detailed sentencing data, Race, Class, and Gender, Who Sentences | Permalink | Comments (2)

Tuesday, August 17, 2021

Highlighting the need and value of investing in criminal justice infrastructure in the form of good data

Amy Bach and Jeremy Travis have this notable new Hill commentary headlined "Don't ignore the infrastructure of criminal justice." I recommend the piece in full, and here are excerpts:

Advocates for criminal justice reform from different fields and backgrounds are all reaching the same conclusion: Any attempt at real, lasting change will require a significant investment in our ability to collect, store, and share data. We cannot confirm that new policies work without tracking their outcomes.  We cannot address racial injustice without data about policing practices, court processes, jail populations, and prison systems....

The country’s criminal justice data infrastructure is antiquated and crumbling.  State by state, we cannot track information about the people who are processed through our courts and jails.  Measures for Justice recently released a report documenting the extent of the country’s criminal justice data gap based on an analysis of 20 states.  In seventeen, court data on indigent defendants was entirely unavailable. In eighteen, data about the pretrial process, such as bail, detention and release practices, were practically nonexistent.  These findings scratch the surface of a nationwide problem: We can’t access information necessary to measure the success (or failure) of politically controversial reforms, such as the elimination of cash bail, or hold informed, productive debates about the next steps.

Similarly, as the nation grapples with the spike in gun violence, it remains striking how little we actually know about the use — and misuse — of firearms.  Last year the Expert Panel on Firearms Data Infrastructure, convened by the nonpartisan and objective research organization NORC at the University of Chicago, released a report documenting how the federal government can repair and expand our disordered and segmented gun data systems.  Any reasoned debate on firearms policy requires a shared set of facts — and the nation simply doesn’t have those facts....

[Current political debates] all underscore the need to improve data infrastructure for our sprawling, uncoordinated, and incredibly expensive criminal justice system.  State and federal spending on criminal justice has grown almost 400 percent over the past 20 years — one of the fastest-growing line items in state budgets — yet we remain unable to answer simple questions about how it functions....

Closing the country’s data gap will require setting national standards for data collection and release.  Congress also needs to provide support and incentives for the local agencies that all too often rely on outdated data collection systems — if they have a system at all.  The task may seem daunting, but it is well within the abilities — and budget — of Congress and the White House to tackle....

But without a solid foundation for evidence-based policy making, it becomes impossible to track outcomes.  Reform is stifled.  Racial discrepancies continue.  Failed promises and opaque systems undermine public trust.  In the same way that roads or education are foundational to a larger economic project, good data serve as a foundation for the larger project of public safety and racial justice.  It is a project that Congress cannot ignore.

August 17, 2021 in Data on sentencing, Who Sentences | Permalink | Comments (0)

Monday, August 09, 2021

Guest post: another critical look at provocative paper claiming to identify the "most discriminatory" federal sentencing judges

Guest-Posting-ServiceI expressed concerns in this recent post about a new empirical paper making claims regarding the "most discriminatory" federal sentencing judges.  Upon seeing this Twitter thread by Prof. Jonah Gelbach about the work, I asked the good professor if he might turn his thread into a guest post. He obliged with this impressive essay:

---------------

This post will comment on the preprint of The Most Discriminatory Federal Judges Give Black and Hispanic Defendants At Least Double the Sentences of White Defendants, by Christian Michael Smith, Nicholas Goldrosen, Maria-Veronica Ciocanel, Rebecca Santorella, Chad M. Topaz, and Shilad Sen.  Doug Berman blogged about it here, and I’m grateful to him for the opportunity to publish this post here.

As I explained in a Twitter thread over the weekend, I have serious concerns about the study.  The most important concerns I raised in that thread fall into the following categories:

  1. Incomplete data
  2. Endogeneity of included regressors
  3. Small numbers of observations per judge
  4. Use of most extreme judge-specific disparity estimates

I’ll take these in turn.

(1) Incomplete Data.  It’s complicated to explain the data, whose construction involve merging multiple large data sets.  In fact, a subset of the authors have a whole other paper about data construction.  In brief, the data are constructed by linking US Sentencing Commission data files to those in the Federal Judicial Center’s Integrated Data Base, which gives them enough to form docket numbers. They then use the Free Law Project’s Juriscraper tool (https://free.law/projects/juriscraper/) to query PACER, which yields dockets with attached judges’ initials for most cases that merged earlier in the authors’ pipeline.  The authors use those initials to identify the judge they believe handled sentencing, using public lists of judges by district.

As involved as the data construction is, my primary concern is simple: the share of cases included in the data set the authors use is very low.  For 2001-2018, there were 1.27 million sentences in USSC data and 1.46 million in FJC data (these figures come from the data-construction paper, which is why they apply to the 2001-2018 period rather than the 2006-2019 period used in the estimation of “Most Discriminatory” judges).  Of these records, the authors were able to match 860k sentences, of which they matched 809k to dockets via Juriscraper.  After using initials to match judges, they have 596k cases they think are matched.  That’s a match rate of less than 50% based on the USSC data and barely 40% based on the FJC data.  The authors can’t tell us much about the characteristics of missing cases, and it’s clear to me from reading the newer paper that the match rate varies substantially across districts.

I think this much alone is enough to make it irresponsible to report estimates that purport to measure individually named judges’ degrees of discrimination.  As a thought experiment, suppose that (i) the authors have half the data, and (ii) if they were able to include the other half of the data they would find that there was no meaningful judge-level variation in estimated racial disparities in sentencing.  By construction, that would render any discussion of the “Most Discriminatory” judges pointless.  Because the authors can’t explain why cases are missed, they have no way to rule out even such an extreme possibility.  Nor do they determine what share of cases they miss for any judge in the data, because they have no measure of the denominator (perhaps they could do this with Westlaw or similar searches for some individual judges).  Their approach to the issue of missing data is to simply assume that missing cases are missing at random:

“One unknown potential source of error is that we cannot determine what percentage of each judge’s cases were matched in the JUSTFAIR database. If this missingness is as-if random with respect to sentencing variables of interest, that should not bias our results, but we have little way of determining this.” (Pages 18-19, emphasis added.)

I believe it is irresponsible to name individual judges as “The Most Discriminatory” on the basis of data as incomplete as these.

(2) Endogeneity.  The authors include as controls in their model each defendant’s guideline-minimum sentence, variables accounting for the type of charge, & various defendant characteristics.  They argue that these variables are enough to deal not only with the enormous amount of missing data (with unknown selection mechanism; see above) but also any concerns that would arise even if all cases were available.  As Doug Berman previously noted here, if prosecutors offer plea deals of differing generosity to defendants of different races, then the guideline minimum doesn’t account for heterogeneity in cases.  And note that if that happens in general, it’s a problem for all the model’s estimates. In other words, even if the particular mechanism Doug hypothesized (sweet plea deals for Black defendants in the EDPA) doesn’t hold, the whole model is suspect if the guidelines variable is substantially endogenous.

There are other endogeneity concerns, e.g., the study includes as regressors variables that capture reasons why a sentence departed from the guidelines — an outcome that is itself partly a function of the sentence whose (transformed) value is on the left hand side of the model.  And as a friend suggested to me after I posted my Twitter thread, the listed charges are often the result of plea bargains, whose consummation can be expected to depend on the expected sentence.  So the guideline minimum variable, too, is potentially endogenous.

(3) Small numbers of observations per judge. The primary estimates on which the claim about particular judges’ putative discriminatory sentencing are based are what are known as random effect coefficients on race dummies.  It’s lengthy to explain all the machinery here, but I’ll take a crack at a simplified description.

The key model output on which the authors make their “Most Discriminatory” designations are judge-level estimated Black-White disparities (the same type of analysis applies for Hispanic-White disparity).  Very roughly speaking, you can think of the estimated disparity for Judge J as an average of two things: (i) the overall observed Black-White disparity across all judges — call this the “overall disparity”, and (ii) the average disparity in the subset of cases in which Judge J did the sentencing — call this the “judge-specific raw disparity”.

For example, suppose that over all defendants, the average (transformed) sentence is 9% longer among Black defendants than among White ones; then the overall disparity would be 9%.  Now suppose that among defendants assigned to Judge J, average sentences were 20% longer for Black than White defendants; then the judge-specific raw disparity would be 20%.

The judge-level estimated disparity that results from the kind of model the authors use is a weighted average of the overall disparity and the judge-specific raw disparity. So in our example, the estimated disparity for Judge J would be a weighted average of 9% (overall disparity) and 20% (judge-specific raw disparity).  What are the weights used to form this average?  They depend on the variance across judges in the true judge-specific disparity and the “residual” variance of individual sentences — the variance that is unassociated with factors that the model indicates help explain variation in sentences.

The greater the residual variance, the less weight will be put on the judge-specific raw disparity.  This is what’s known as the “shrinkage” property of mixed models — they shrink the weight placed on judge-specific raw disparities in order to reduce the noisiness of the model’s estimated disparity for each judge. (I noted this property in a follow-up tweet to part of my thread.)

However, all else equal, greater residual variance also means that variation in judge-specific raw disparities will be more driven by randomness in the composition of judges’ caseload. Because these raw disparities contribute to the model-estimated disparity, residual variance creates a luck-of-the-draw effect in the mode estimates: a judge who happens to have been assigned 40 Black defendants convicted of very serious offenses and 40 White defendants convicted of less serious ones will have a high raw disparity due to this luck factor, and that will be transmitted to the model’s estimate disparity.

How important this effect of residual variance is context-sensitive. The key relevant factors are likely to be the numbers of cases assigned to each judge for each racial group and the size of residual variance relative to the size of variance across judges in true judge-level disparities.

As I wrote in my Twitter thread, I used the authors’ posted code and data to determine that Hon. C. Darnell Jones II, the judge named by the authors as the “Most Discriminatory”, had a total of 103 cases with Black (non-Hispanic) defendants, 37 cases with Hispanic defendants, and 67 with White defendants. Hon. Timothy J. Savage, the judge named as the second “Most Discriminatory”, sentenced 155 Black (non-Hispanic) defendants included in the estimation, 58 Hispanic defendants, and 93 White defendants.  These don’t strike me as very large numbers of observations, which is another way of saying that I’m concerned residual variance may play a substantial role in driving the model-estimated disparities for these judges.

My replication of the authors’ model shows that true judge-specific disparities in the treatment of Blacks and Whites have an estimated variance of 0.055, whereas the estimated residual variance is nearly 30 times higher — 1.59 for a single defendant.  For a judge who sentenced 40 Black and 40 White defendants, this would mean that residual variance would be 2(1.59)/40~0.08 — which is larger than the 0.055 estimated variance in true judge-level disparity.  It’s more complicated to assess the pattern for judges with different numbers of defendants by race, but I would not be surprised if the residual variance component is roughly the same size as the variance in judge-level effects.

In other words, even given the effect of shrinkage, I suspect that “bad luck” in terms of the draw of defendants might well be quite important in driving the judge-specific estimates the authors provide. Even leaving aside the missing-data problem, I think that makes the authors’ choice to name individual judges as “Most Discriminatory” problematic.

Another issue is that the judge-specific estimated disparity (remember, this is the model’s output, formed by taking the weighted average of overall and judge-specific raw disparities) is itself only an estimate, and thus a random variable.  Thus if one picked a judge at random from the authors’ data, it would be inappropriate to assume that the estimated disparity for that judge was the true value. To compare the judge-specific estimated disparity to other judges’ estimated disparities, or to some absolute standard, would require one to take into account the randomness in estimated disparity.  The authors do not report any such estimates.  Nor does the replication code they posted along with their data indicate that they calculated standard errors of the judge-specific estimated disparities.  There is no indication that I can find in either the code or the paper that they investigated this issue before posting their preprint.

(4) The many-draws problem.  Consider a simple coin toss experiment.  We take a fair coin and flip it 150 times. Roughly 98% of the time, this experiment will yield a heads share of 41.6% or greater (in other words, 41.6% is the approximate 2nd percentile for a fair coin flipped 150 times).  So if we flipped a fair coin once, it would be quite surprising to observe a heads share of 41.6% or lower.  But now imagine we take 760 fair coins and flip each of them 150 times. Common sense suggests it would be a lot less surprising to observe some really low heads shares, because we’re repeating the experiment many times.

To illustrate this point, I used a computer to do a simulation of exactly the just-described experiment — 760 fair coins each flipped 150 times. In this single meta-experiment I found that there were 13 “coins” with heads shares of less than 41.6%, just under two percent of the 760 “coins”, roughly as expected.  Given that we know all 760 “coins” are fair, it would make no sense to say that “the most biased coin is coin number 561”, even though in my meta-experiment it had the lowest heads share (36.7%, more than 3 standard deviations below the mean).  We know the coin is fair; it’s just that we did 760 multi-toss experiments, and with that much randomness we’re going to see some things that would be very unlikely with only one experiment.

Leaving aside differences across judges in the number of cases heard, this is not that different from what the authors’ approach entails.  If all judges had the same number of sentences, then they’d all have the same weights on their raw disparities, and so differences across judges would be entirely due to variation in those raw disparities.  If the residual variance component of these raw disparities is substantial (see above), then computing judge-specific model-estimated disparities for each of 760 judges would involve an important component related to idiosyncratic variation.  Taking the most extreme out of 760 model-estimated disparities is a lot like focusing on “coin” number 561 in my illustrative experiment above.

Another way to say this is that even if there were zero judge-specific disparity — even if all judges were perfectly fair — we might not be surprised to see substantial variation in the authors’ model-estimated disparities.

Now, it’s not really the case that all judges gave the same number of sentences, so there’s definitely some heterogeneity due to shrinkage as discussed above, which complicates the simpler picture I just painted for illustrative purposes.  But I suspect there is still a nontrivial “many-tosses problem” here.  Note that this is really an instance of a problem sometimes referred to as “multiple testing” in various statistics literatures; as responders to my Twitter thread noted, one place it comes up is in attempts to measure teachers’ value added in education research, and another is in ranking hospitals and/or physicians.  In other words, this isn’t a problem I’ve made up or newly discovered.

* * *

In sum, I think the paper has several serious problems.  I do not think anyone should use its reported findings as a basis for deciding which judges are discriminatory, or how much.  This is as true for people who lack confidence in the fairness of the system as for any people who doubt there is discrimination.  In other words, the criticisms I offer do not require one to believe federal criminal sentencing is pure and fair.  These criticisms are about the quality of the data and the analysis.

I want to make one final point, as I did in my Twitter thread.  Like the authors of the study, I believe that PACER should be made available to researchers.  Indeed, I recently have written a whole paper taking that position.  But I am very concerned about the impact of their work on that prospect.  The work involves problematic methods and choices and then calls out individual judges for shaming.  In my experience there’s nontrivial opposition to data openness within the federal judiciary, and I fear this paper will only harden it.

August 9, 2021 in Data on sentencing, Detailed sentencing data, Race, Class, and Gender, Who Sentences | Permalink | Comments (14)

Tale of two sentencings highlights disparity and need for for better data

This lengthy new article from Cleveland.com spotlights a local example of sentencing disparity and highlights how this tale contributes to calls for statewide data-focused reforms.  The headline of the article provides a preview: "White woman who stole $250K gets probation, while Black woman who stole $40K goes to jail.  Disparate sentences spark calls for reform."  Here is how the article gets started:

Two Cuyahoga County Common Pleas Court judges doled out disparate sentences this week to women who stole public money in separate cases, reigniting calls to create a statewide sentencing database to ensure judges mete out fair punishments.

A white woman stole nearly $250,000 from the village of Chagrin Falls.  Judge Hollie Gallagher sentenced her on Monday to two years of probation.  A Black woman who stole $40,000 from Maple Heights City Schools went before Judge Rick Bell, who sentenced her Tuesday to 18 months in prison.

Leaders of Black faith organizations, labor organizations, current and former judges and social activist groups all told cleveland.com and The Plain Dealer that the stark difference between the sentences damaged the credibility of the criminal justice system and reinforced the sentiment that judges disproportionately punish people of color or those without means.

All of the leaders called on Cuyahoga County’s judges and judges around the state to join an Ohio Supreme Court pilot project that would create a public database to make transparent how judges sentence defendants and provide guardrails on judicial discretion that often results in unequal justice.  Only 10 of Cuyahoga County Common Pleas Court’s 34 judges have said they plan to sign on to the program. Six of those judges are in their first term on the bench.

“It’s kind of hard to figure how you can end up with results that are so different for similar kinds of actions,” former longtime Cleveland Municipal Court Judge Ronald Adrine said.  “Cases like these point out the need for the system to do a better job of reviewing the data because there’s lots of disparity between the way that people of color and white people are treated. But it doesn’t get captured because nobody’s really looking.”

Ohio Supreme Court Justice Michael Donnelly, who spent 14 years on the Cuyahoga County Common Pleas bench before ascending to the state’s highest court in 2019, and 8th District Court of Appeals Judge Sean Gallagher said the adoption of the database would move the state closer to identifying and correcting issues that contribute to disparities in sentencing.  “Are we satisfied with a system that would allow for two extremely different results like this?” Donnelly asked.  “Is that good policy? Does it make the community more safe, when our sentencing laws allow for that disparity? We need to ask that question in Ohio.”

Both judges said that, while judicial discretion is important, the reaction to this week’s differing sentences shows the state needs to do more to ensure that judges punish people who commit similar crimes more equally.  “If there isn’t faith in the justice system that you’re going to get a fair shake, then that’s the biggest indictment against keeping the things the way they are,” Gallagher said.

A few prior related posts:

August 9, 2021 in Data on sentencing, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Friday, July 30, 2021

Provocative new empirical paper claims to identify the "most discriminatory" federal sentencing judges

Via Twitter, I was altered to this notable new empirical paper by multiple authors titled "The Most Discriminatory Federal Judges Give Black and Hispanic Defendants At Least Double the Sentences of White Defendants."  The paper's title alone likely explains why I describe it as provocative, and this abstract provides more context about the paper's contents:

In the aggregate, racial inequality in criminal sentencing is an empirically well- established social problem. Yet, data limitations have made it impossible for researchers to systematically determine and name the most racially discriminatory federal judges.  The authors use a new, large-scale database to determine and name the observed federal judges who impose the harshest sentence length penalties on Black and Hispanic defendants.  Following the focal concerns framework, the authors (1) replicate previous findings that conditional racial disparities in sentence lengths are large in the aggregate, (2) show that judges vary considerably in their estimated degrees of racial discrimination, and (3) list the federal judges who exhibit the clearest evidence of racial discrimination.  This list shows that several judges give Black and Hispanic defendants double the sentences they give observationally equivalent white defendants.  Accordingly, the results suggest that holding the very most discriminatory judges accountable would yield meaningful improvements in racial equality.

The "new, large-scale database" used for this study is this JUSTFAIR data source published online last year.  I have not previously blogged about the JUSTFAIR data because I have never been sure of its representativeness since the source says it includes nearly 600,000 cases over a recent 18-year period (from 2001 to 2018), but more than twice that number of persons have been sentenced in federal courts during that span.  I fear I lack the empirical chops to know just whether to be reasonably confident or highly uncertain about the JUSTFAIR data, and that broader concern colors my thinking about this provocative new paper's claims that the authors have been able to identify the "most racially discriminatory federal judges."

I would love to hear from readers with strong empirical backgrounds about whether this new paper effectively demonstrates what it claims to identify.  I am initially skeptical because the the two judges labelled "most discriminatory" come from the same federal judicial district and only a few districts are among those that have all the identified "discriminatory" judges.  That reality leads me to wonder if case-selection realities, rather than "discrimination," may at least in part account for any observed racial differences in sentencing outcomes.  Relatedly, when I dig into the local data at the JUSTFAIR data site, the judges identified in this new paper as the "most discriminatory" do not seem to have anywhere close to the most racially disparate rates of above/below guideline sentencing outcomes even within their own districts.

In short, without a much better understanding of the empirics at work here, I am not confident about what this new empirical paper is claiming.  But I am confident that I would like to hear from readers as to what they think about this provocative new paper on an always important topic.

July 30, 2021 in Data on sentencing, Federal Sentencing Guidelines, Offender Characteristics, Race, Class, and Gender, Who Sentences | Permalink | Comments (3)

Sunday, July 25, 2021

US Sentencing Commission releases more detailed "Compassionate Release Data Report" for 2020

As detailed in this post, last month the US Sentencing Commission released a short data report titled "Compassionate Release Data." That report provided notable but very basic numbers on the grants and denials of federal compassionate release motions nationwide for calendar year 2020.  The report revealed, as further discussed in this follow-up post, that judges granted a good number of these motions once COVID hit, but that the Bureau of Prisons approved stunningly few compassionate release applications and that there were considerable disparities in grant rates in different judicial districts.

I was quite pleased to see the USSC promulgate any compassionate release data, but I was eager for additional data beyond circuit and district breakdowns of these motions.  In my prior post, I hoped we might at some point see "a lot more offender demographic information (e.g., race, gender, age of movant) and sentence modification information (e.g., primary sentenced offense and amount of sentence reduction)."  Excitingly, the USSC has now released this updated expanded data report that provides a lot more details about compassionate release grants for calendar year 2020.

Specifically, this latest report includes data on "Demographic Characteristics Of Offenders Receiving Compassionate Release" and on "Selected Sentencing Factors For Offenders Receiving Compassionate Release" and on "Type Of Crime For Offenders Receiving Compassionate Release" and on "Original Sentence Length For Offenders Receiving Compassionate Release." I am so very pleased to see this additional data, although the extent of sentence reductions is still a data point not covered which seems to me to be important to understand the full compassionate release story (e.g.,ten granted sentence reduction motions that reduce sentences by five months seem quite different than ten granted motions reducing sentences by five years.)   

Upon first glace, it is hard to see if there are any particularly distinctive or disturbing patterns in this enhanced USSC compassionate release data.  Interestingly, looking at the demographics, I noticed that the percentage of black prisoners securing a sentence reduction in 2020 (which was 45.2% according to the USSC data) appears to be greater than the percentage of black prisoners in federal prison (which was 34.9% as of this USSC report with March 2021 data).  Likewise, I was intrigued to see that the percentage of prisoners convicted of drug trafficking securing a sentence reduction in 2020 (which was 53% according to the USSC data) appears to be greater than the percentage of such prisoners in federal prison (which was 43% as of this same USSC report).   

I hope that the US Sentencing Commission not only continues to release more and more granular data about sentencing reduction grants.  I also hope the USSC will (a) track recidivism rates for this population over time, and (b) learn about which guidelines might be seen to produce excessively long sentencing in retrospect as documented through these grants.  The kind of second-look sentencing mechanism now operating the the federal system is not only valuable and important as a means to achieve better justice in individual cases, but also should serve as an important feedback loop providing a kind of on-going audit of the operation of the entire federal sentencing system. 

A few of many prior related posts:

July 25, 2021 in Data on sentencing, Detailed sentencing data, FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (1)

Thursday, July 22, 2021

BJS releases new reports on "Correctional Populations in the United States, 2019" and "Probation and Parole in the United States, 2019"

Justice Department's Bureau of Justice Statistics always produces terrific reports on national criminal justice realities, though there is necessarily a time lag in the data reported.  But given they ways the COVID pandemic has changed (and not changed) our criminal justice systems, I think it is especially timely that BJS has just released to big new reports on the state of US correctional populations at the end of 2019, just before the pandemic hit.  Via email, I got news and short descriptions of these new BJS reports:

The Department of Justice’s Bureau of Justice Statistics today released two reports that present statistics on adults in the U.S. correctional system. Correctional Populations in the United States, 2019 – Statistical Tables provides data on both incarcerated persons and those on probation or parole, while Probation and Parole in the United States, 2019 focuses on persons under community supervision on probation or parole.

Correctional Populations in the United States, 2019 – Statistical Tables presents statistics on persons supervised by U.S. adult correctional systems at year-end 2019, including those supervised in the community on probation or parole and persons incarcerated in state or federal prison or local jail.  It describes the size and change in the total correctional population from 2009 to 2019.  Findings are based on various BJS data collections, including the Annual Probation Survey, Annual Parole Survey, Annual Survey of Jails, Census of Jails, National Prisoner Statistics program and Survey of Jails in Indian Country.

Probation and Parole in the United States, 2019 presents national data on adult offenders under community supervision on probation or parole in 2019.  It includes characteristics of the population such as sex, race or Hispanic origin, and most serious offense.  The report details how offenders move onto and off community supervision, such as completing their term of supervision, being incarcerated, absconding or other unsatisfactory outcomes while in the community.  Findings are based on data from BJS’s 2019 Annual Probation Survey and Annual Parole Survey.

July 22, 2021 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Tuesday, July 20, 2021

Helpful review of some modern US capital punishment realities

FT_21.07.15_DeathPenaltyFacts_2Over at the Pew Research Center, John Gramlich has this effective new piece headlined "10 facts about the death penalty in the U.S." In fact, many of the "facts" discussed in this article are facts about polling regarding the death penalty in the U.S. (which makes sense given Pew's recent poll work on this topic). Nevertheless, the piece is well worth a read in full, and here are a few of the highlights I though most bloggy-notable:

1. Six-in-ten U.S. adults strongly or somewhat favor the death penalty for convicted murderers, according to the April 2021 survey. A similar share (64%) say the death penalty is morally justified when someone commits a crime like murder....

5. Support for the death penalty is consistently higher in online polls than in phone polls. Survey respondents sometimes give different answers depending on how a poll is conducted. In a series of contemporaneous Pew Research Center surveys fielded online and on the phone between September 2019 and August 2020, Americans consistently expressed more support for the death penalty in a self-administered online format than in a survey administered on the phone by a live interviewer. This pattern was more pronounced among Democrats and Democratic-leaning independents than among Republicans and GOP leaners, according to an analysis of the survey results....

7. A majority of states have the death penalty, but far fewer use it regularly. As of July 2021, the death penalty is authorized by 27 states and the federal government – including the U.S. Department of Justice and the U.S. military – and prohibited in 23 states and the District of Columbia, according to the Death Penalty Information Center. But even in many of the jurisdictions that authorize the death penalty, executions are rare: 13 of these states, along with the U.S. military, haven’t carried out an execution in a decade or more.

A growing number of states have done away with the death penalty in recent years, either through legislation or a court ruling. Virginia, which has carried out more executions than any state except Texas since 1976, abolished capital punishment in 2021. It followed Colorado (2020), New Hampshire (2019), Washington (2018), Delaware (2016), Maryland (2013), Connecticut (2012), Illinois (2011), New Mexico (2009), New Jersey (2007) and New York (2004)....

8. Death sentences have steadily decreased in recent decades. There were 2,570 people on death row in the U.S. at the end of 2019, down 29% from a peak of 3,601 at the end of 2000, according to the Bureau of Justice Statistics (BJS). New death sentences have also declined sharply: 31 people were sentenced to death in 2019, far below the more than 320 who received death sentences each year between 1994 and 1996....

9. Annual executions are far below their peak level. Nationally, 17 people were put to death in 2020, the fewest since 1991 and far below the modern peak of 98 in 1999, according to BJS and the Death Penalty Information Center. The COVID-19 outbreak disrupted legal proceedings in much of the country in 2020, causing some executions to be postponed.

July 20, 2021 in Data on sentencing, Death Penalty Reforms, Elections and sentencing issues in political debates | Permalink | Comments (0)

Monday, July 19, 2021

New UNODC report details interesting global realities and trends in incarceration

A section of the United Nations Office on Drugs and Crime has released this interesting new data report highlighting on its cover page "Nearly twelve million people imprisoned globally; nearly one-third unsentenced; with prisons overcrowded in half of all countries."  This release about the report provides some context and highlights: 

One in every three prisoners worldwide are held without a trial, which means that they have not been found guilty by any court of justice, according to the first global research data on prisons published by the United Nations Office on Drugs and Crime.

The research brief, released ahead of Nelson Mandela International Day on 18 July, examines the long-term trends of imprisonment, stating that over the past two decades, between 2000 and 2019, the number of prisoners worldwide has increased by more than 25 per cent, with a global population growth of 21 per cent in the same period, with 11.7 million people incarcerated at the end of 2019.  This is a population comparable in size to entire nations such as Bolivia, Burundi, Belgium, or Tunisia.

At the end of 2019 — the latest year data is available — there were around 152 prisoners for every 100,000 population. While Northern America, Sub-Saharan Africa and Eastern Europe have experienced a long-term decrease in imprisonment rates of up to 27 per cent, other regions and countries, such as Latin America and Australia and New Zealand, have seen growth over the last two decades of up to 68 per cent.

At 93 per cent, most of the persons detained in prison globally are men.  Over the past two decades, however, the number of women in prisons has increased at a faster pace, with an increase of 33 per cent versus 25 per cent for men.

For those concerned about mass incarceration in the US and elsewhere, this report provides a terrific global snapshot of recent trends and some of the latest data. For example:

As of 2019, there were an estimated 152 prisoners for every 100,000 population globally.  This global rate has not changed much over the last two decades — it stood at 151 prisoners in 2000.  There is, however, considerable sub-regional variation: as of 2019, a much larger share of the population was imprisoned in Northern America (577 per 100,000 population), Latin America and the Caribbean (267) and Eastern Europe (262), than in Sub-Saharan Africa (84), Melanesia (78), or Southern Asia (48).  Furthermore, gender-specific rates also vary substantially across sub-regions. The high male imprisonment rate in the Northern American sub-region (1,048 male prisoners per 100,000 male population) is particularly noteworthy.

July 19, 2021 in Data on sentencing, Prisons and prisoners, Scope of Imprisonment, Sentencing around the world | Permalink | Comments (0)

Saturday, July 17, 2021

"Reducing Racial Inequalities in Criminal Justice: Data, Courts, and Systems of Supervision"

The title of this post is the title of this short report from the National Academies of Sciences, Engineering, and Medicine capturing the proceedings of a notable workshop. Here is how the report is described:

The Committee on Reducing Racial Inequalities in the Criminal Justice System of the National Academies of Sciences, Engineering, and Medicine convened a workshop in April 2021 as part of its exploration of ways to reduce racial inequalities in criminal justice outcomes in the United States.  This workshop, the third in a series of three, enabled the committee to gather information from a diverse set of stakeholders and experts to inform the consensus study process. Speakers at the workshop presented on deeply rooted inequalities within the criminal justice system, which exist not only in readily measured areas such as incarceration, but also in a much larger footprint that includes contact with police, monetary sanctions, and surveillance and supervision.  This publication highlights the presentations and discussion of the workshop.  

July 17, 2021 in Data on sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Thursday, July 15, 2021

New fact sheets from Sentencing Project on disparities in youth incarceration

Via email this morning, I received details and links about notable new data assembled by The Sentencing Project. Here is the heart of the email:

Profound racial and ethnic disparities in youth incarceration define the American juvenile justice system. New publications released today by The Sentencing Project detail the scope of the problem and should raise alarms among policymakers and advocates committed to racial justice.

Our new fact sheets show state-by-state incarceration rates by race and ethnicity and highlight where the problem is getting worse and better. 

  • Black Disparities in Youth Incarceration
    • Black youth are more than four times as likely as their white peers to be held in juvenile facilities, a modest improvement since 2015’s all-time high.
    • In New Jersey, Black youth are more than 17 times as likely to be incarcerated than their white peers. 
  • Latinx Disparities in Youth Incarceration
    • Latinx youth are 28 percent more likely to be incarcerated than their white peers, a sharp improvement over the course of the decade.
    • In Massachusetts, Latinx youth are five times more likely to be incarcerated than their white peers.
  • Tribal Disparities in Youth Incarceration
    • Tribal youth’s disparities have grown worse over the course of the decade, and they are now more than three times as likely to be incarcerated than their white peers.
    • In Minnesota, Tribal youth are 12 times more likely to be incarcerated than their white peers.

The Sentencing Project has long recommended the use of racial impact statements to divulge the source of disparities such as these. To overcome them, states and localities must invest heavily in community programs that address inequality at all stages of life, with particular focus on accommodating the needs of children of color.

July 15, 2021 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

Thursday, July 08, 2021

Another notable round of new Quick Facts publications from US Sentencing Commission

In a number of prior post, I have praised the US Sentencing Commission for continuing to produce a steady stream of its insightful little data documents in its terrific series of reader-friendly "Quick Facts" publications (which are designed to "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format"). This is another such post intended to flag these newest publications:

July 8, 2021 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offense Characteristics | Permalink | Comments (0)

"Prosecutors, court communities, and policy change: The impact of internal DOJ reforms on federal prosecutorial practices"

Crim12275-fig-0007-mThe title of this post is the title of this important and impressive new empirical federal criminal justice research just published in Criminology and authored by Mona Lynch, Matt Barno and Marisa Omori. Here is the article's abstract:

The current study examines how key internal U.S. Department of Justice (DOJ) policy changes have been translated into front-line prosecutorial practices. Extending courts-as-communities scholarship and research on policy implementation practices, we use U.S. Sentencing Commission data from 2004 to 2019 to model outcomes for several measures of prosecutorial discretion in federal drug trafficking cases, including the use of mandatory minimum charges and prosecutor-endorsed departures, to test the impact of the policy changes on case processing outcomes. We contrast prosecutorial measures with measures that are more impervious to discretionary manipulation, such as criminal history, and those that represent judicial and blended discretion, including judicial departures and final sentence lengths. We find a significant effect of the policy reforms on how prosecutorial tools are used across DOJ policy periods, and we find variation across districts as a function of contextual conditions, consistent with the court communities literature. We also find that a powerful driver of changes in prosecutorial practices during our most recent period is the confirmation of individual Trump-appointed U.S. Attorneys at the district level, suggesting an important theoretical place for midlevel actors in policy translation and implementation.

This article includes a data set of over 300,000(!) federal drug cases, and the findings are extremely rich and detailed. I have reprinted one of many interesting charts above, and here is the article's concluding paragraphs (without references):

Recent developments call into question whether the existing workgroup dynamics in the federal system that we have documented here — with prosecutors generally pushing for more punitive outcomes, and judges and defense attorneys acting as a counter to this punitiveness — are likely to persist in the future.  Although there was bipartisan Congressional support for the First Step Act, suggesting that the late twentieth-century punitive policies may continue to wane in appeal, the federal criminal system has also undergone significant change, particularly in the judiciary where lifetime appointments prevail.  The Trump administration was extremely active in appointing new judges to existing vacancies, and as a result, nearly a quarter of active federal judges were appointed during his presidency.  Given the conservative political leanings of many of these judges, it is fair to question whether these judges might in fact oppose a move toward less punitive practices among federal prosecutors.

Even if the Biden administration is successful in scaling back punitive policies and installs U.S. Attorneys who are in ideological alignment with such reforms, prosecutorial power is not limitless in determining case outcomes.  Under advisory guidelines, judges have considerable power to sentence above the guidelines, as long as it is within the generous statutory limits that characterize federal criminal law.  In the face of this possibility, federal prosecutors may opt to exercise their most powerful tool—the discretionary decision to file charges, or not.  Thus, should the dynamics shift to where the current roles are reversed, prosecutors could come to rely on their discretion not to charge in those drug cases where they seek to eliminate the chance that those potential defendants receive long sentences.  In any case, as our results suggest, we should expect that any potential future conflicts among federal prosecutors and judges are likely to play out differently across different court contexts, depending on the conditions and make-up of each local district.

July 8, 2021 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (0)

Tuesday, June 29, 2021

US Sentencing Commission issues big new report on "Federal Sentencing of Child Pornography: Non-Production Offenses"

Cover_CP-non-prodDespite only having a single commissioner, the US Sentencing Commissioner is continuing to produce interesting federal sentencing data and reports.  This latest USSC report, running nearly 100 pages, was released today under the titled "Federal Sentencing of Child Pornography: Non-Production Offenses."   This report drills into data from fiscal year 2019, and this webpage sets out these "key findings" from the report:

  • Facilitated by advancements in digital and mobile technology, non-production child pornography offenses increasingly involve voluminous quantities of videos and images that are graphic in nature, often involving the youngest victims.
    • In fiscal year 2019, non-production child pornography offenses involved a median number of 4,265 images, with some offenders possessing and distributing millions of images and videos.
    • Over half (52.2%) of non-production child pornography offenses in fiscal year 2019 included images or videos of infants or toddlers, and nearly every offense (99.4%) included prepubescent victims.
  • Constrained by statutory mandatory minimum penalties, congressional directives, and direct guideline amendments by Congress in the PROTECT Act of 2003, § 2G2.2 contains a series of enhancements that have not kept pace with technological advancements.  Four of the six enhancements — accounting for a combined 13 offense levels — cover conduct that has become so ubiquitous that they now apply in the vast majority of cases sentenced under § 2G2.2.
    • For example, in fiscal year 2019, over 95 percent of non-production child pornography offenders received enhancements for use of a computer and for the age of the victim (images depicting victims under the age of 12).
    • The enhancements for images depicting sadistic or masochistic conduct or abuse of an infant or toddler (84.0% of cases) or having 600 or more images (77.2% of cases) were also applied in most cases.
  • Because enhancements that initially were intended to target more serious and more culpable offenders apply in most cases, the average guideline minimum and average sentence imposed for nonproduction child pornography offenses have increased since 2005.
    • The average guideline minimum for non-production child pornography offenders increased from 98 months in fiscal year 2005 to 136 months in fiscal year 2019.
    • The average sentence increased more gradually, from 91 months in fiscal year 2005 to 103 months in fiscal year 2019.
  • Although sentences imposed remain lengthy, courts increasingly apply downward variances in response to the high guideline ranges that apply to the typical non-production child pornography offender.
    • In fiscal year 2019, less than one-third (30.0%) of non-production child pornography offenders received a sentence within the guideline range.
    • The majority (59.0%) of non-production child pornography offenders received a variance below the guideline range.
    • Non-government sponsored below range variances accounted for 42.2 percent of sentences imposed, and government sponsored below range variances accounted for 16.8 percent.
  • Section 2G2.2 does not adequately account for relevant aggravating factors identified in the Commission’s 2012 Child Pornography Report that have become more prevalent.
    • More than forty percent (43.7%) of non-production child pornography offenders participated in an online child pornography community in fiscal year 2019.
    • Nearly half (48.0%) of non-production child pornography offenders engaged in aggravating sexual conduct prior to, or concurrently with, the instant nonproduction child pornography offense in fiscal year 2019.  This represents a 12.9 percentage point increase since fiscal year 2010, when 35.1 percent of offenders engaged in such conduct.
  • Consistent with the key aggravating factors identified in the Commission’s 2012 Child Pornography Report, courts appeared to consider participation in an online child pornography community and engaging in aggravating sexual conduct when imposing sentences, both in terms of the length of sentence imposed and the sentence relative to the guideline range.
    • In fiscal year 2019, the average sentence imposed increased from 71 months for offenders who engaged in neither an online child pornography community nor aggravating sexual conduct, to 79 months for offenders who participated in an online child pornography community, to 134 months for offenders who engaged in aggravating sexual conduct.
    • In fiscal year 2019, offenders who engaged in aggravating sexual conduct were sentenced within their guideline ranges at a rate nearly three times higher than offenders who did not participate in online child pornography communities or engage in aggravating sexual conduct (44.3% compared to 15.6%).
  • As courts and the government contend with the outdated statutory and guideline structure, sentencing disparities among similarly situated non-production child pornography offenders have become increasingly pervasive. Charging practices, the resulting guideline ranges, and the sentencing practices of judges have all contributed to some degree to these disparities.
    • For example, the sentences for 119 similarly situated possession offenders ranged from probation to 228 months though these 119 possession offenders had the same guideline calculation through the application of the same specific offense characteristics and criminal history category.
    • The sentences for 52 similarly situated receipt offenders ranged from 37 months to 180 months though these 52 receipt offenders had the same guideline calculation through the application of the same specific offense characteristics and criminal history category.
    • The sentences for 190 similarly situated distribution offenders ranged from less than one month to 240 months though these 190 distribution offenders had the same guideline calculation through the application of the same specific offense characteristics and criminal history category.
  • When tracking 1,093 nonproduction child pornography offenders released from incarceration or placed on probation in 2015, 27.6 percent were rearrested within three years.
    • Of the 1,093 offenders, 4.3 percent (47 offenders) were rearrested for a sex offense within three years.
    • Eighty-eight offenders (8.1% of the 1,093) failed to register as a sex offender during the three-year period.

June 29, 2021 in Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offense Characteristics, Post-Libby commutation developments, Sex Offender Sentencing | Permalink | Comments (1)

Monday, June 28, 2021

Updating the Buckeye State's progress creating a needed felony sentencing database

In a few posts at the start and end of last year, I flagged the work of some Ohio jurists in advocating for the development of a statewide sentencing database. See :A notable judicial pitch for better sentencing data in the Buckeye State" (from Jan. 2020) and "Making a great case for greater data to improve sentencing decision-making and sentencing systems" (from Dec. 2020).  Since then, work on, and debates over, such a database have picked up steam and also garnered some press attention:

From the Columbus Dispatch, "Can a spreadsheet improve fairness and justice in sentencing in Ohio courts? Some judges say yes"

From the Court News Ohio, "Justice, Judges Stand By Value Of Sentencing Database"

Also from the Court News Ohio, "New Platform Provides Path to Accessible Sentencing Data"

From The Plain Dealer editorial board: "Should Cuyahoga County run a pilot to show a criminal sentencing database can work?"

Here are excerpts from the the Dispatch article, which appears in today's papers, providing an update on the efforts:

Ohio Supreme Court Justice Michael Donnelly is spearheading a project to collect criminal sentencing data in a uniform way across courts.  And Chief Justice Maureen O'Connor is backing it as well.  "I've become convinced that this isn't just a good idea, it's an absolute necessity to deal with the problem of disparate treatment and implicit bias that permeates our sentencing laws," Donnelly said....

The goal is to be able see how similar cases compare county to county, court to court.  It isn't as simple as it sounds.  The courts operate with antiquated information technology systems. There isn't a uniform way that courts collect information.  Ohio has 723 elected judges across 88 counties — some of whom may be worried about what trends the data may show, Donnelly said....

Ohio is making some progress.  The Ohio Sentencing Data Platform project now has a template so courts can collect the same information in the same fields — a crucial early step for building a common database.  

Courts in Allen and Lawrence counties are testing the project and courts in Highland, Lake and Summit counties are scheduled to join in the coming months.  Courts in 11 other counties including Hamilton, Warren, Franklin and Stark are holding meetings about joining.

 The April 2021 issue of the Federal Sentencing Reporter, which is available online here, includes discussions of efforts to build out the Ohio Sentencing Data Platform.

June 28, 2021 in Data on sentencing, Detailed sentencing data, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Friday, June 18, 2021

"Bargained Justice: Plea Bargaining and the Psychology of False Pleas and False Testimony"

The title of this post is the title of this new essay authored by Lucian Dervan now available via SSRN Here is its abstract:

Plea bargaining is an institution that has come to dominate the American criminal justice system.  While little psychological research was done in the decades following the 1970 Supreme Court decision that approved the practice of plea bargaining, many advances have been made in this field in the last decade.  We now know, for example, that a significant number of defendants will falsely plead guilty in return for the benefits of a bargain.  Further, we know that the presence of counsel can actually increase, not decrease, the prevalence of false pleas of guilty.  We also know that pretrial detention can drastically increase the rate of false pleas of guilty by the innocent.  Finally, we know that defendants will not only falsely plead guilty, but that they will also falsely testify against a co-defendant in return for the benefits of the deal.  This piece examines each of these findings and considers what this research means for the future of bargained justice. 

June 18, 2021 in Data on sentencing, Procedure and Proof at Sentencing | Permalink | Comments (0)