Sentencing Law and Policy

Prison Policy Initiative provide updated data on "incarceration stats by race, ethnicity, and gender" in all states

Prison Policy Initiative has this new briefing by Leah Wang fully titled "Updated data and charts: Incarceration stats by race, ethnicity, and gender for all 50 states and D.C.: New data visualizations and updated tables show the national landscape of persistent racial disparity in state prisons and local jails."  here is how the briefing begins (with links from the original):

The best and latest criminal legal system data are often scattered across different government agencies, in incompatible formats, and difficult to compare.  To make the most useful information more accessible, we make the underlying data for our timely reports and briefings available in our Data Toolbox, and create state-specific graphics on our comprehensive State Profiles pages.  Today, we’ve added a rich new series of resources for our users of our work:

First, we now have a downloadable spreadsheet of the most recently available incarceration data for people in state prisons and in local jails, by race and ethnicity and by sex, for all 50 states and D.C.  Unlike other datasets, ours provides apples-to-apples state comparisons in three formats (counts, rates, and percentages): We’ve done the math to standardize incompatible measurements found in the various original data sources.

Second, we’ve updated over 100 of the key graphics on our State Profiles pages showing prison and jail incarceration rates by race and ethnicity, and how the racial composition of each state’s prisons and jails compare to the total state population.

New US Sentencing Commission report covers "Federal Escape Offenses"

The US Sentencing Commission this morning released this new 30+-page report titled simply "Federal Escape Offenses."  This USSC webpage provides a summary and key findings, and here and highlights from the highlights:

This new publication expands upon the Commission’s previous research on federal escape offenses. In this report, the Commission combines data it regularly collects with data from a special coding project to provide a deeper understanding of escape offenses and the individuals who commit those crimes.  The report provides the characteristics of individuals who commit escape offenses, then chronologically examines their criminal histories before the instant offense through their alleged criminal behavior while on escape status. Next it provides information on their subsequent sentencing.  Finally, this report examines their criminal behavior after being released into the community by the recidivism rates of a cohort of individuals released from federal custody in 2010.

• Escape offenses accounted for less than one percent (0.4%) of all federal offenses between fiscal years 2017 and 2021.

• Individuals sentenced for escape offenses had extensive and serious criminal histories....

• Most federal escapes were from non-secure custody. The majority (89.0%) of individuals escaped from a Residential Reentry Center (i.e., a halfway house)....

• Nearly all (99.2%) individuals sentenced for an escape offense received a sentence of imprisonment. The average term of imprisonment was 12 months.

• Nearly two-thirds (65.0%) of individuals sentenced for an escape offense were sentenced within the guideline range for their escape crime, compared to 40.2 percent of all other federally sentenced U.S. citizens.

• The majority (85.7%) of individuals sentenced for an escape offense and released in 2010 were rearrested during an eight-year follow-up period, which was higher than individuals sentenced for any other type of federal offense.  By comparison, one-half (49.2%) of other individuals released in 2010 were rearrested during the same time period.

  • Individuals sentenced for escape offenses were rearrested sooner after release compared to other sentenced individuals. Their median time to rearrest was ten months, compared to 19 months for the remaining 2010 cohort.

US Sentencing Commission releases FY 2023 third quarter sentencing data (and the stories of crack sentencing continues to evolve)

Earlier this week, the US Sentencing Commission released on its website its latest quarterly data report which is labelled "3rd Quarter Release, Preliminary Fiscal Year 2023 Data Through June 30, 2023."  These new data provide the latest accounting of how federal sentencing is working toward a new normal in the wake of a COVID pandemic and related evolutions in the federal criminal justice system.  For example, as reflected in Figure 2, while the three quarters prior to the pandemic averaged roughly 20,000 federal sentencings per quarter, the three quarters closing out 2020 had only between about 12,000 and 13,000 cases sentenced each quarter.  Calendar year 2021 had a partial rebounding of total cases sentenced, but the "new normal" seems to be between 15,000 and 17,000 total federal cases sentenced each quarter (and Figure 2 shows that a decline in immigration cases accounts for the decrease in overall cases sentenced).

As I have noted before, the other big COVID era trend was a historically large number of below-guideline variances being granted, and this trend has now extended over the last 12 quarters of official USSC data (as detailed in Figures 3 and 4).  I suspect this trend is mostly a facet of the different caseload and case mixes.  In the most recent quarters, the official data show that only around 42.5% of all federal sentences are imposed "Within Guideline Range."  This number continues the modern reality that, since the pandemic hit, significantly more federal sentences are being imposed outside the guideline range (for a wide array of reasons) than are being imposed inside the calculated range.

As I have also flagged before, for anyone who has long followed federal sentencing data and debates, the USSC's latest data on drug sentencing reflected in Figures 11 and 12 should be especially striking.  These figures show, for the last three quarters, that over 47% of all federal drug sentencings involved methamphetamine, which is more of the drug sentencing caseload than powder and crack cocaine, heroin and fentanyl combined.  Moreover, the average sentence for all those meth cases is well over eight years in prison (and has been rising in recent quarters), whereas the average for all the other drug cases is around six years or lower.  In other words, the federal "war on drugs" these days is much more focused upon, and imposes longer prison sentences upon, the meth defendants than anyone else. 

Especially notable is how few crack cases are being sentenced and how relatively low average crack sentences now are.  Back in FY 2008 (a little before the sentencing reforms of the Fair Sentencing Act), the USSC data showed that over 6000 crack defendants were been federally sentenced that year with an average sentence approaching 10 years in prison.  But now, with only 4.6% of the federal drug sentencing caseload involving crack cases, it seems likely that fewer than 1000 crack defendants will be sentenced in federal court in FY 2023 and in the latest quarter the average crack sentence was well under 5 years.  In other words, the crack caseload has gone down by more than 80% and the average sentence has gone done by more than 50%.  Remarkable.

CCJ publishes big new data resource, "The Footprint," which seeks to track the size of America's criminal justice system

The Council of Criminal Justice (CCJ) today published this notable new data resource titled "The Footprint: Tracking the Size of America's Criminal Justice System."  Here is how the resource introduces the data it covers on its landing page:

The overall size, or “footprint,” of the American criminal justice system remains well above historical levels, but it has shrunk substantially in recent years.  This series of interactive charts summarizes trends in crime, arrests, and correctional control (incarceration and community supervision), comparing current levels with their most recent peaks or valleys.  Time periods vary due to data availability, and where reliable data are available, trends in race and sex are also presented.

COVID-19 resulted in significant changes in crime patterns and the operations of law enforcement agencies, courts, correctional agencies, and paroling authorities.  Because of the unique influence of the pandemic across the system, analyses also examine the early effects of the pandemic on crime, arrests, and correctional control.

The first section provides a high-level overview of crime, arrest, and incarceration trends in recent decades. The following sections take a closer look at trends in each area, broken down by age, crime type, race, and sex.

The data assembled here, which provides historical national data trends based on already reported public data, are great to have in one place. Sentencing fans may be especially interested in the data trends regarding probation, parole, jails, state prisons and federal prisons, but all the data is really fascinating in all sorts of particulars.

Notable new resource provides "Data for Defenders"

Though I am institutionally disinclined to praise anything emerging from the school up north, I am still quite pleased to highlight and compliment a new UM resource brought to my attention by Eve Brensike Primus, who is a Prof at the University of Michigan Law School and Director of the Public Defender Training Institute.  Here is the full description from an email I received earlier today:

Data for Defenders is a new database that collects briefs, motions, and transcripts focused on social science research and data helpful to public defenders. It includes information on topics like the science of eyewitness memory; problems with racism and bias in the criminal legal system; and the use of unreliable, seemingly scientific evidence.

The project is sponsored by the University of Michigan’s MDefenders program along with a number of partners — including public defender offices and organizations around the country — to ensure that the database remains relevant and up to date.  In addition to including completed briefs and motions submitted by defenders, defense experts at Michigan Law will regularly draft language for new briefs and motions, incorporating novel social science research to help defenders advocate with and for their indigent clients.

The database is organized in a user-friendly way. For every document in the database, there is a description that will pinpoint exactly which pages have the relevant information. It’s also searchable by a number of different categories — date, jurisdiction, topic, key terms.  And because it has succinct summaries, perusing the database by category can also generate ideas for defenders about different kinds of issues they can raise that they might not have thought of.

Instead of having defenders around the country waste precious time reinventing the wheel, this database will collect and share sample motions and briefs to help public defenders bring data, research, and statistics into the courtroom.  We encourage you to take a look at this new resource, use it when helpful, and contribute materials to it.  And if there are subjects that you’d like to see covered that are not currently included, feel free to send your ideas to mdefendersinfo @ umich.edu.

I noticed that two of the documents in the database are on sentencing, and I am sure there are also others that will be of interest to sentencing fans.

New research suggests justice delayed results in justice more severe

This new Scientific American article provides a short account by researchers about thier interesting studies on delayed justice.  The article is fully headlined "Why Delays in Delivering Justice Lead to Harsher Sentencing: People want swift punishment and will even penalize perpetrators for delays outside their control," and here are excerpts:

It occurred to us that people in a position to determine justice — whether they are judges or other evaluators — often expect swift consequences.  When this process is disrupted, we reasoned, they may find it unfair. Did they seek to correct for a process that they believed had unfairly benefited the transgressor? In a series of studies, we discovered that is indeed the case.  Delays in arrests or sentencing increased punishment severity.

We began by accessing more than 150,000 felony sentencing decisions from Cook County, Illinois. Cook County, which encompasses Chicago, is the second-most populous county in the U.S.  The data, which were released to offer more transparency into the prosecution process, provided a detailed view of how delays may influence sentencing. Importantly, some of the crimes occurred back in the 1980s, meaning that justice may have been delayed for years or even decades after the crime was committed.

We uncovered a consistent pattern: the more time that passed before the judgment of a crime, the longer the sentence a transgressor received.  This occurred regardless of whether we computed delays from the time span between the crime and the arrest or sentencing or between the arrest and the sentencing.  We also controlled for the number of charges and the severity of crimes committed, which ruled out alternative explanations.

Still, we wanted to replicate these findings in another context.  Instead of looking at civilian sentencing, we acquired a data set of police misconduct cases from the New York Police Department.  These data included such examples as an officer’s use of excessive force and abuse of authority. As before, our results revealed a consistent effect: the more time that elapsed between the report of misconduct and the closure of a case, the more severe the recommended punishment was.  These results held even after accounting for the number of charges officers faced, the number of officers associated with the accusation and the type of accusation.  Together these two studies showed robust support for the effect of delays on punishment.

But we still wanted to understand why time delays seemed to increase punishment severity. We therefore designed a series of experiments with 6,029 adult participants recruited via online panels.  In these studies, people learned about a hypothetical crime, such as shoplifting, and then decided how many months they would sentence the transgressor to prison for.... Once again, we found that participants punished the transgressor significantly more severely in the long-time-delay condition....

Our studies reveal an interesting and important pattern.  We should not assume that the passage of time has healing properties.  In fact, it can potentially exacerbate punishment.  Moreover in cases where the time delay is not the fault of the transgressor — as with the backlog of court cases during the COVID pandemic — people need to recognize that time delays may lead to biased sentencing.  That’s something that should concern all of us.

The full research from the authors of this piece was published earlier this month in the journal Psychological Science under the title "Time and Punishment: Time Delays Exacerbate the Severity of Third-Party Punishment."  Here is its abstract:

Punishments are not always administered immediately after a crime is committed.  Although scholars and researchers claim that third parties should normatively enact punishments proportionate to a given crime, we contend that third parties punish transgressors more severely when there is a time delay between a transgressor’s crime and when they face punishment for it.  We theorize that this occurs because of a perception of unfairness, whereby third parties view the process that led to time delays as unfair.  We tested our theory across eight studies, including two archival data sets of 160,772 punishment decisions and six experiments (five preregistered) across 6,029 adult participants.  Our results suggest that as time delays lengthen, third parties punish transgressors more severely because of increased perceived unfairness.  Importantly, perceived unfairness explained this relationship beyond other alternative mechanisms. We explore potential boundary conditions for this relationship and discuss the implications of our findings.

Recapping some recent notable reports on prison realities and more from the Prison Policy Initiative

I recently received a helpful review of just some of the remarkable materials and data assembled by the Prison Policy Initiative on an array of prison- and punishment-related topics.  I am pretty sure I have blogged about some or even most of these reports, but I thought it still helpful to reprint here links to the reports and the brief summaries sent my way:

• Punishment Beyond Prisons: Incarceration and supervision by state -- The criminal punishment system is much bigger than jails and prisons. Our report shows that all states -- even those that consider themselves progressive leaders -- put significant numbers of their citizens on probation and parole, systems that often replicate prison conditions in the community. Two 50-state charts comparing states' rates of supervision and incarceration show that when probation and parole are taken into account, progressive states like Rhode Island don't appear too different than famously "tough" states like Louisiana.
• The aging prison population: Causes, costs, and consequences -- The share of people in prison aged 55 and older has skyrocketed over the last 30 years, from 3% in 1991 to 15% in 2021. What caused this huge shift in the prison population and what can be done about it? In a new briefing, we explain what has caused the national "greying" of prisons, highlight the harmful consequences of locking up so many older people, and point to solutions. (Includes 50-state data.)
• New data on HIV in prisons during the COVID-19 pandemic underscore links between HIV and incarceration -- Recent data from the Bureau of Justice Statistics show that the rate of HIV among people in prisons is three times higher than the general U.S. population. We break down the rates of HIV in all 50 state prison systems, exploring the root causes of this health disparity. We also discuss the criminalization of HIV across the U.S.: 35 states still have laws on the books criminalizing actions that can potentially expose another person to HIV, even if no transmission occurs.
• SMH: The rapid and unregulated growth of e-messaging in prisons -- With a growing number of incarcerated people and their families able to use e-messaging services to keep in touch, we examined how much these services cost in all 50 states and the federal Bureau of Prisons, finding that the cost per message ranges from being free (or just a few cents) in some states to a high of 50c in states like Arkansas. We also explore other concerns with electronic messaging, including privacy issues and "bulk pricing" schemes, and lay out our recommendations for how to make this service work for incarcerated people, their families, and even prisons.
• Heat, floods, pests, disease, and death: What climate change means for people in prison -- The summer of 2023 may be the mildest summer of the rest of our lives if governments do not take action to halt climate change. In this briefing, we discuss new research that proves the connection between extreme heat in prisons and higher mortality rates, with one surprising finding: During heat waves, incarcerated people in Northeast and Western states fare the worst. We also dive into how other aspects of climate change -- such as mosquito infestations and infectious diseases -- stand to impact people in prison.

CCJ releases encouraging new short report on "First Step Act: An Early Analysis of Recidivism"

This morning I received an email from the Council on Criminal Justice (CCJ) linking me to this notable new report authored by Avinash Bhati and titled ""First Step Act: An Early Analysis of Recidivism."   This CCJ press release about the short report provides this effective review of its highlights:

Previous comparisons between FSA releases and the overall federal prison population have not accounted for differences in the groups, including levels of risk of reoffending, tracking periods, and other characteristics. The CCJ analysis estimates recidivism rates among individuals released from the federal Bureau of Prisons (BOP) prior to the FSA who had similar risk profiles and were tracked for similar periods of time (“similarly situated”) as those released under the FSA.

According to data published by the U.S. Department of Justice, 29,946 people were released from BOP facilities under the FSA from 2020 to 2022.  The Council’s analysis of this data finds that, when compared to similarly situated individuals released from the BOP prior to the Act’s implementation, individuals released under the FSA have:

• An estimated 37% lower recidivism rate. According to BOP data, the recidivism rate for FSA releases is 12.4%, compared to an estimated recidivism rate of 19.8% for similarly situated pre-FSA releases.

• An estimated 3,125 fewer arrests incurred. With a recidivism rate of 12.4%, the people released under the FSA over three years could have accounted for between 3,712 and 4,330 arrests. With an estimated recidivism of 19.8%, an equal number of similarly situated pre-FSA releases could have accounted for between 5,918 and 7,455 arrests over the same three-year period.

US Sentencing Commission releases more "Quick Facts" data on economic offenses

This week, the US Sentencing Commission has released another set of its "Quick Facts" publications.  Long-time readers have long heard me praise the USSC for producing these convenient and informative short data documents, which are designed to "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format."  Here are the latest postings by the USSC on this  "Quick Facts" page:

• Theft, Property Destruction, & Fraud (August 2023)
• Aggravated Identity Theft (August 2023)
• Bribery (August 2023)
• Counterfeiting (August 2023)
• Money Laundering (August 2023)
• Tax Fraud (August 2023)
• Health Care Fraud (August 2023)
• Government Benefits Fraud (August 2023)
• Credit Card and Other Financial Instrument Fraud (August 2023)
• Securities and Investment Fraud (August 2023)
• Organizational Offenses (August 2023)
• Robbery (August 2023)
• Escape (August 2023)

Reviewing latest data on Jan 6 riot prosecutions and sentencings

This Fox News piece, headlined "More than 1K people charged over Jan 6 riot, 366 received prison time: DOJ," summarizes some of the latest data from the US Justice Department about its prosecutions of persons involved in the storming of the US Capitol on January 6, 2021.  Here are details:

The Justice Department has charged more than 1,100 people in relation to the Jan. 6, 2021 Capitol riot, and about a third of that number were sentenced to prison time, the Biden administration announced over the weekend. The DOJ released its latest statistics about Jan. 6 on Sunday, exactly 31 months after rioters stormed the U.S. Capitol to protest former President Trump’s election loss.

Of all the charges listed, the majority of defendants – 967 – were accused of trespassing on restricted federal grounds. Just over 100 of the people in that group face additional charges for illegally entering federal grounds with a weapon.

The DOJ said 372 people were charged with "assaulting, resisting, or impeding officers or employees." Roughly a third of those were accused of using a deadly weapon against an officer or "causing serious bodily injury" to an officer. It said about 64 people have been charged with destruction of government property, and 51 were charged with theft of government property.

The DOJ said 632 people have pleaded guilty to various charges – mostly misdemeanors, although 198 have pleaded guilty to felonies. The department said 597 people have received sentences for their activities on Jan. 6, and 366 of those were sentenced to incarceration....

"Under the continued leadership of the U.S. Attorney’s Office for the District of Columbia and the FBI’s Washington Field Office, the investigation and prosecution of those responsible for the attack continues to move forward at an unprecedented speed and scale. The Department of Justice’s resolve to hold accountable those who committed crimes on January 6, 2021, has not, and will not, wane," the department said.

Florida complete its fifth execution of 2023, more than its total in prior five years

As reported in this AP piece, a "Florida man who recently dropped all legal appeals was executed Thursday for the 1988 murder of a woman who was sexually assaulted, killed with a hammer and then set on fire in her own bed." Here is more:

James Phillip Barnes, 61, was pronounced dead at 6:13 p.m. following a lethal injection at Florida State Prison in Starke.... The 61-year-old inmate was sentenced to death for the murder of nurse Patricia “Patsy” Miller. It was the fifth execution in Florida this year....

Barnes was serving a life sentence for the 1997 strangulation of his wife, 44-year-old Linda Barnes, when he wrote letters in 2005 to a state prosecutor claiming responsibility for killing Miller years earlier at her condominium in Melbourne on Florida’s east coast.

Barnes represented himself in court hearings where he offered no defense, pleaded guilty to killing Miller and did not attempt to seek a life sentence rather than the death penalty. Miller, who was 41 when Barnes killed her on April 20, 1988, had some previous unspecified negative interactions with him, according to a jailhouse interview he gave German film director Werner Herzog. “There were several events that happened (with Miller). I felt terribly humiliated, that’s all I can say,” Barnes said in the interview....

Barnes killed his wife in 1997 after she discovered that he was dealing drugs. Her body was found stuffed in a closet after she was strangled, court records show. Barnes has claimed to have killed at least two other people but has never been charged in those cases....

Though unusual, condemned inmates sometimes don’t pursue every legal avenue to avoid execution. The Death Penalty Information Center reports that about 150 such inmates have been put to death since the U.S. Supreme Court reaffirmed the death penalty as constitutional in 1976.

According to this DPIC page, Florida had no executions between 2020 and 2022, and only two each year in the prior two years.  The single-year record for executions in the Sunshine state is eight, though it seems no more executions are as of now yet scheduled in the state.  There are more than 300 people on the state's death row, though I am un sure how many have exhausted their appeals.

"Conviction, Incarceration, and Recidivism: Understanding the Revolving Door"

The title of this post is the title of this new paper that looks to provide a notable (and lengthy) empirical account of contributions to recidivism.  The piece was recently posted to SSRN and is authored by John Eric Humphries, Aurelie Ouss, Kamelia Stavreva, Megan T. Stevenson and Winnie van Dijk.  Here is its abstract:

We study the effects of conviction and incarceration on recidivism using quasi-random judge assignment.  We extend the typical binary-treatment framework to a setting with multiple treatments, and outline a set of assumptions under which standard 2SLS regressions recover causal and margin-specific treatment effects.  Under these assumptions, 2SLS regressions applied to data on felony cases in Virginia imply that conviction leads to a large and long-lasting increase in recidivism relative to dismissal, consistent with a criminogenic effect of a criminal record.  In contrast, incarceration reduces recidivism, but only in the short run.  The assumptions we outline could be considered restrictive in the random judge framework, ruling out some reasonable models of judge decision-making.  Indeed, a key assumption is empirically rejected in our data.  Nevertheless, after deriving an expression for the resulting asymptotic bias, we argue that the failure of this assumption is unlikely to overturn our qualitative conclusions.  Finally, we propose and implement alternative identification strategies.  Consistent with our characterization of the bias, these analyses yield estimates qualitatively similar to those based on the 2SLS estimates. Taken together, our results suggest that conviction is an important and potentially overlooked driver of recidivism, while incarceration mainly has shorter-term incapacitation effects.

A sign of the capital times?: Buckeye State marks five years without any executions

This local article, headlined "Ohio’s death penalty: Today marks five years since last inmate executed," notes a notable temporal landmark is Ohio's fascinating history with capital punishment.  Here are the details:

Inmate Robert Van Hook was executed at the Southern Ohio Correctional Facility in Lucasville on July 18, 2018.  An inmate has not been put to death in Ohio since.

Robin Maher, executive director of the Death Penalty Information Center in Washington, D.C., said the trend will likely continue.  “Ohio was once a pretty prolific executioner, so this is a real change,” she said....

Van Hook’s execution took place more than 30 years after he stabbed a man to death in Cincinnati after meeting him at a bar.  The 58-year-old had no remaining appeals, and Republican Gov. John Kasich rejected his request for clemency without comment.  At the time of the killing, Van Hook was suffering from long-term effects of untreated mental, physical and sexual abuse as a child and was depressed that his life seemed to be falling apart, his attorneys argued.

Between 1976 and 2018, what Maher refers to as the “modern era of the death penalty,” 56 inmates were executed in Ohio.  Currently, 123 inmates sit on Ohio’s death row, making it the sixth largest in the country, according to the Death Penalty Information Center....

Ohio joins the ranks of the majority of states who have either abolished the death penalty or have the option but have not used it in five years, or in most cases, even longer. Arkansas also has not used the death penalty in five years. Nebraska will join the list in August....

In Ohio, there are a number of reasons for the decline in executions, including access to the drugs used. “Ohio has been informed by drug companies that if their products are used in executions in Ohio, those same products will be withheld from all state agencies, including state-run hospitals and medical facilities,” according to a statement from the Department of Rehabilitation and Corrections. This effectively eliminates those companies as sources for the prison system to obtain drugs listed in the execution protocol.

As some readers may know, there has been robust litigation over execution protocols in the Buckeye State, and some extraordinary work by defense attorneys in this litigation seemed to have contributed to some Ohio leaders being content with a de facto moratorium on executions.  Because Governor Mike DeWine (and perhaps other state leaders) seem generally disinclined to try to get the state's machinery of death back in action, I would predict that the state is unlikely to have an execution before 2027.  But the death penalty has always been unpredictable in the state, and so I am disinclined to make any firm assertions about what the capital future holds.

US Sentencing Commission releases more "Quick Facts" data on wide range of topics

I have been noticing in recent weeks that the US Sentencing Commission has been releasing a lot more new short data reports in the form of its "Quick Facts" publications. (Long-time readers have long heard me praise the USSC for producing these convenient and informative short data documents, which are designed to "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format").  Here is just a sampling of recent postings by the USSC on this  "Quick Facts" page:

• NEW  Career Offenders (July 2023)
• NEW  Non-U.S. Citizens (July 2023)
• NEW  Women in the Federal Offender Population (July 2023)
• NEW  Native Americans in the Federal Offender Population (June 2023)

• NEW  Methamphetamine Trafficking (June 2023)
• NEW  Powder Cocaine Trafficking (July 2023)
• NEW  Crack Cocaine Trafficking (June 2023)
• NEW  Heroin Trafficking (July 2023)
• NEW  Marijuana Trafficking (July 2023)
• NEW  Oxycodone Trafficking (July 2023)

• NEW  Sexual Abuse (June 2023)
• NEW  Child Pornography (June 2023)
• NEW  Illegal Reentry (June 2023)
• NEW  Alien Smuggling (June 2023)

There are so many notable and interesting little data items in these little documents, and I welcome folks highlighting any interesting data points in the comments.  I am eager to flag the continued drop in federal prosecutions for marijuana trafficking, as the FY 2022 shows only 806 persons being federal sentenced for this offense.  (I co-authored an article a few years ago looking at federal marijuana data, titled "How State Reforms Have Mellowed Federal Enforcement of Marijuana Prohibition," which noted that a decade ago nearly 7000 persons were being federal sentenced for marijuana trafficking.) 

Half way through 2023, is US on pace for the most executions in nearly a decade?

As we turn past the half-way point in the year, I thought it interesting to note that the first half of 2023 had a total of 13 executions and that at least ten more "serious" execution dates have already been set for the the second half of 2023 (according to this accounting from the Death Penalty Information Center).  A quick glance at this DPIC fact sheet shows that we have already had more executions in 2023 than took place in all of 2021.  And, if just a few more 2023 execution dates get set and most get carried out, this year could end up with more total executions in the United States than any year since 2015 (when there were 28) or even 2014 (when there were 35).

Of course, these yearly execution totals are a far cry from what the US experienced around the turn of the millennium: during the second term of Bill Clinton and the first term of George W. Bush (from 1997 through 2004), the US averaged over 73 executions per year (with a peak of 98 executions in 1999).  Stated a bit differently, while 2023 seems to be putting the US back on a pace for around two executions per month on average, not long ago this country was averaging over six executions per month.

These numbers strike me as especially interesting as another notable US Supreme Court Term comes to an end without much SCOTUS engagement with capital punishment jurisprudence.  The US Supreme Court's evolving doctrines and scrutiny of capital convictions and sentences over the last half-century have profoundly impacted the size and nature of death rows and whose death sentences get carried out.  I suspect the current group of Justices will not be inclined to get in the way if more states start showing even more interest in completing even more executions.  But I also sense other legal actors (eg, state courts and prosecutors) and various political and practical realities may still keep the US execution rate well below past recent peaks for the foreseeable future. 

Notable RAND review of data and research on "justice-involved veterans"

I just saw this intriguing new publication from the RAND Corporation titled "Identifying Promising Prevention Strategies and Interventions to Support Justice-Involved Veterans."  I recommend the full piece, and here some excerpts:

The research on veterans who have come into contact with the criminal justice system — whom we refer to as justice-involved veterans — is extremely limited. Over the past decade, there have been very few rigorous studies with large sample sizes. It has been historically difficult to secure funding for research on the needs of incarcerated and formerly incarcerated populations (Boch et al., 2023).  However, there has been renewed interest at the national level in how military service and military-to-civilian transitions affect the risk of justice system involvement, as well as the specific needs of formerly incarcerated veterans as they reenter their communities.  In 2022, the Council on Criminal Justice launched the nonpartisan Veterans Justice Commission, chaired by former Secretary of Defense Chuck Hagel, to explore these questions and issue evidence-based recommendations for policy change...

Not all justice-involved veterans are incarcerated in jails and prisons.  There are no reliable statistics on the total number of justice-involved veterans (Council on Criminal Justice, 2022).  Across the population of justice-involved veterans, we have the clearest picture of the differences between incarcerated veterans and their nonveteran counterparts, in part because the Bureau of Justice Statistics conducts periodic surveys and publishes reports specific to incarcerated veterans.  These survey data are among the best sources of information about justice-involved veterans.  The bureau's most recent survey, conducted in 2016, showed that 98 percent of veterans in state and federal prisons were men and that they were older and more likely to be White and serving longer sentences than incarcerated nonveterans (Maruschak and Bronson, 2021)....

Although questions remain about veterans' pathways to criminal justice involvement, the public is generally supportive of rehabilitative approaches for these individuals (Atkin-Plunk and Sloas, 2019). A National Institute of Corrections report referenced the frequent refrain that offering alternatives to incarceration for veterans was the "right thing to do" (Edelman, Berger, and Crawford, 2016); the country has an obligation to address the enduring effects of military service, and this sense of responsibility has led to innovative interventions....

Perhaps the most well-researched intervention for justice-involved veterans is the veteran treatment court (VTC) model. VTCs follow a similar model to other problem-solving courts, such as drug courts and mental health courts, where the emphasis is on providing treatment to justice-involved individuals with substance use or mental health needs rather than incarcerating them....

The number of VTCs has expanded significantly since the first court was founded in 2008, and recent estimates suggest that there are more than 620 operating across the country (VA, 2022a).  However, there is substantial variability in policies and practices across VTCs (Baldwin, 2015; Henderson and Stewart, 2016; Douds et al., 2017; McCall, Tsai, and Gordon, 2018), making it difficult to know what models are most effective.  Some studies have yielded promising findings (Hartley and Baldwin, 2019), but most have been limited by their small scale, focus on a single court, and lack of a comparison group (e.g., Derrick et al., 2018; Shannon et al., 2017).  Estimates of recidivism rates following VTC participation range widely, from 2.5 percent to 56 percent (McCall, Tsai, and Gordon, 2018).  And beyond recidivism, there is also a need for research on ongoing treatment engagement and clinical outcomes associated with court participation.

Highlighting data on how very few federal defendants go to trial (and even fewer who get acquitted)

The federal indictment of former Prez Trump seems sure to bring every more attention to the dynamics, and perhaps the day-to-day realities, of the federal criminal justice system.  To that end, John Gramlich of the Pew Research Center has this notable new item headlined "Fewer than 1% of defendants in federal criminal cases were acquitted in 2022."  I recommend the full (short) piece, and here are excerpts:

Former President Donald Trump pleaded not guilty this week to federal criminal charges related to his alleged mishandling of classified documents after his departure from the White House in 2021.  The unprecedented charges against Trump and his subsequent plea raise the question: How common is it for defendants in federal criminal cases to plead not guilty, go to trial and ultimately be acquitted?

In fiscal year 2022, only 290 of 71,954 defendants in federal criminal cases – about 0.4% – went to trial and were acquitted, according to a Pew Research Center analysis of the latest available statistics from the federal judiciary. Another 1,379 went to trial and were found guilty (1.9%).

The overwhelming majority of defendants in federal criminal cases that year did not go to trial at all.  About nine-in-ten (89.5%) pleaded guilty, while another 8.2% had their case dismissed at some point in the judicial process, according to the data from the Administrative Office of the U.S. Courts....

Trump’s case is being heard in the U.S. District Court for the Southern District of Florida, where acquittal rates look similar to the national average.  In fiscal 2022, only 12 of 1,944 total defendants in the Southern District of Florida – about 0.6% – were acquitted at trial. As was the case nationally, the vast majority of defendants in Florida’s Southern District (86.2%) pleaded guilty that year, while 10.7% had their cases dismissed.

It’s not clear from the federal judiciary’s statistics how many other defendants nationally or in the Southern District of Florida faced the same or similar charges that Trump is facing or how those cases ended.

Broadly speaking, however, the charges against Trump are rare. In fiscal 2022, more than eight-in-ten federal criminal defendants in the United States faced charges related to one of four other broad categories of crime: drug offenses (31%), immigration offenses (25%), firearms and explosives offenses (16%) or property offenses (11%).  In Florida’s Southern District, too, more than eight-in-ten defendants faced charges related to these four categories.

US Sentencing Commission releases FY 2023 second quarter sentencing data

Last week, the US Sentencing Commission released on its website this latest quarterly data report setting forth the "2nd Quarter Release, Preliminary Fiscal Year 2023 Data Through March 31, 2023."  These new data suggest that persisting impacts of COVID era developments are still echoing through federal sentencing caseloads.  For example, as reflected in Figure 2 of this data report, while the year prior to the pandemic averaged roughly 20,000 federal sentencings per quarter, the "new normal" now seems to be 16,000 total federal cases sentenced each quarter (with a decline in immigration cases primarily accounting for the decrease in overall cases sentenced).

As I have noted before, the other big COVID era trend was a historically large percentage of below-guideline variances being granted, and this trend has now extended over the last 11 quarters of official USSC data (as detailed in Figures 3 and 4).  I suspect this trend is just another facet of the different caseload and case mix.  Over the last two quarters, the official data show that only 42.7% of all federal sentences are being imposed "Within Guideline Range."  This number is not historically low, but it continues the modern statistical reality that considerably more federal sentences are imposed outside the guideline range (for a wide array of reasons) than are imposed inside the range.

Among other interesting data and stories within the data, I continue to be struck by the data on drug sentencing reflected in Figures 11 and 12.  These figures show, for the latest two quarters, that nearly 47% of all federal drug sentencings involved methamphetamine and that the fentanyl caseload has recently grown considerably.  (In FY 21, less than 10% of the drug sentencing caseload involved fentanyl; for the first half of FY 23, the fentanyl caseload is over 16%.) Still, the average sentence for all the meth cases is over eight years in prison, whereas the average for all the other drugs is under six years.  As I have put it before, the federal "war on drugs" these days is much more focused upon, and imposes longer prison sentencing upon, meth defendants than anyone else. 

New Sentencing Project report reviews "Adults 25 and Younger Sentenced to Life without Parole"

The Sentencing Project today released this new report on certain LWOP sentencing patterns titled "“Left to Die in Prison: Emerging Adults 25 and Younger Sentenced to Life without Parole.” Here are excerpts from the report's "Executive Summary" (with endnotes removed):

Beginning at age 18, U.S. laws typically require persons charged with a crime to have their case heard in criminal rather than juvenile court, where penalties are more severe.  The justification for this is that people are essentially adults by age 18, yet this conceptualization of adulthood is flawed.  The identification of full criminal accountability at age 18 ignores the important, distinct phase of human development referred to as emerging adulthood, also known as late adolescence or young adulthood.  Compelling evidence shows that most adolescents are not fully matured into adulthood until their mid-twenties.

The legal demarcation of 18 as adulthood rests on outdated notions of adolescence.  Based on the best scientific understanding of human development, ages 18 to 25 mark a unique stage of life between childhood and adulthood which is recognized within the fields of neuroscience, sociology, and psychology.  Thus, there is growing support for providing incarcerated people who were young at the time of their offense a second look at their original sentence to account for their diminished capacity.  A 2022 study found similar levels of public support for providing a second look at prison sentences for crimes committed under age 18 as for those committed under age 25.... 

Two in five people — 11,600 individuals — sentenced to LWOP between 1995 and 2017 were under 26 at the time of their sentence.  In Michigan, Pennsylvania, and California, nearly half of those sentenced to LWOP were younger than 26.  Nationally, the peak age at conviction was age 23, which is well within the period between youth and adulthood.

Moreover, two thirds (66%) of people under 26 years old sentenced to LWOP are Black compared with 51% of persons sentenced to LWOP beyond this age. As we show in this report, our analysis finds that being Black and young has produced a substantially larger share of LWOP sentences than being Black alone. This fact reinforces the growing understanding that extreme sentences disproportionately impact Black Americans.

The report’s findings support a recent sentencing trend recognizing emerging adulthood as a developmental stage; more than a dozen states have introduced or passed legislative reforms or adopted jurisprudential restrictions in recent years to protect emerging adults from extreme punishment.  These reforms utilize the latest scientific understanding of adolescence and young adulthood to recognize emerging adulthood as a necessary consideration in assigning culpability. 

In light of strong evidence showing the unique attributes of emerging adulthood, sentences that allow no review once adolescent development is concluded are especially egregious.

US Sentencing Commission releases a few updated "Quick Facts" and latest "compassionate release" data

The US Sentencing Commission has recently released some new sentencing data reports.  Long-time readers have long heard me praise the USSC for producing insightful little data documents in the form of its "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").  The USSC recent posted these four new entries:

• NEW  Offenders in the Federal Bureau of Prisons (May 2023)
• NEW  Drug Trafficking (May 2023)
• NEW  Fentanyl Trafficking (May 2023)
• NEW  Fentanyl Analogue Trafficking (May 2023)

There are so many notable and interesting little data items in these little documents, and I hope to find time to mine a few data notes in the days ahead.  In addition, the USSC's website promises "more updated Quick Facts coming soon."

In addition, the USSC also recently published this updated "Compassionate Release Data Report." This report, which has information covering from October 2019 through March 2023, includes new data on sentence reduction motions under section 3582(c)(1)(A) filed with the courts and decided during the first two quarters of fiscal year 2023. Not surprisingly, this data report shows continued month-over-month declines in the number of sentence reduction motions filed and granted since the heights of the COVID pandemic. And yet, the USSC data show that there are still more of these motions being filed and being granted in recent times than was being granted before the pandemic.

"Fighting Crime Requires More Police and Less Prosecution"

The title of this post is the headline of this notable new Bloomberg opinion piece by Justin Fox than is built around an interview with Jennifer Doleac (WaPo reprint here).  Here is the set up to the Q&A in the article:

The nationwide jump in shootings and homicides early in the pandemic and the rise in other crimes that followed in some places have made crime a hot topic again in the US.  It has been a prominent one for academic research for a while, with economists in particular flocking to the field as a testing ground for research strategies that aim to sift causes from data. To get a sense of how recent findings fit with the national discussion on crime, I talked to Jennifer Doleac, an economist at Texas A&M University who not only studies crime but hosts a podcast on new research, Probable Causation, and has organized the Criminal Justice Expert Panel, which sums up expert opinion on crime questions.  This summer, Doleac, who has also written a few columns for Bloomberg Opinion, will become executive vice president of criminal justice at Arnold Ventures, a leading funder of crime research.  Following is a much-abridged transcript of our conversation and a list of research papers referred to in it.

I highly recommend the full piece, but here are snippets of likely interest to sentencing fans:

JD: [Research shows] first-time offenders are sort of at a fork in the road.  We can either hope it’s enough of a wake-up call that they’ve been arrested and had to come into court, and they’ll change course on their own, or we can pull them into the system.  I’ve become a big proponent of erring toward leniency in those sorts of situations.

There’s been other work to suggest similar things with nonviolent felony defendants. There’s a whole bunch of work on pretrial detention and the fact that locking people up pretrial has a really detrimental, causal effect on their future trajectories.  They’re more likely to plead guilty in that initial case but also more likely to re-offend in the future....

The main thing I try to point out to policymakers is we don’t have to fully understand why we are here to come up with ideas of what to do about it.  We can have ideas about what to do about violent crime that don’t require us solving this problem that we might never solve.

JF:  What are some top candidates?

JD: Putting more police on the streets reduces homicide, reduces violent crime.  There’s plenty of research on that. There are also plenty of discussions now about the potential social costs of over-policing, so it’s reasonable to have conversations about whether that is the route you want to go.  Also, it’s really hard to recruit police right now.

We know that increasing the probability of getting caught for crimes has a big deterrent effect in a way that potentially locking people up for 20 years on the back end does not.  No one is looking that far ahead.  Putting cameras everywhere, adding more people to DNA databases will increase the probability that you get caught if you offend.  We have lots of good evidence that would deter crime....

Leniency toward first-time offenders in the long run is probably a good investment.  Another thing is increasing access to mental health care.  There’s this amazing paper using data from South Carolina showing that when we kick kids off Medicaid at age 19, when it becomes much harder to stay on Medicaid, you just see all the kids get kicked off and then in the other graph you see everyone immediately locked up.  It’s these kids who were using Medicaid to get mental health treatment, they’re the ones that are now at very high risk of being locked up.

"Debt Sentence: How Fines and Fees Hurt Working Families"

The title of this post is the title of this new report from the the Wilson Center for Science and Justice and the Fines and Fees Justice Center. Here is the report's executive summary:

Food, healthcare, and shelter are essential for basic survival.  Beyond mere survival, we all have other fundamental needs, such as employment, access to transportation, or education.  No one would choose to forgo any of these necessities, unless there was a greater danger threatening their well-being.  For millions of families across the United States, court fines and fees threaten these basic building blocks of survival and stability.

Across the United States, courts impose fines as a punishment for minor traffic infractions, municipal code violations, misdemeanors, and felonies.  State and local governments then tax people with fees, surcharges, and other costs used to fund the justice system and other government services.  The entire fee system is designed for one purpose: raising revenue for governments.

We know the impact of court fines and fees is not just limited to those families living in or close to poverty; it is felt by working families across economic, racial, and political demographic groups. Court-related debt can often be in the hundreds — if not thousands or even tens of thousands — of dollars, which makes paying it off a struggle for many.  The Federal Reserve Board found that nearly one in four adults in the United States were just one unexpected $400 bill away from severe financial hardship (U.S. Fed. Reserve, 2022).  A report by the lending industry also found that in 2022 “[t]he share of those earning less than $50,000 who live paycheck to paycheck rose to 82%” (PYMNTS.com & Lending Club, 2022).

Despite the breadth of data showing how much U.S. families are struggling financially, there has been a lack of consistent and reliable data on the impact of monetary sanctions on those same families.  This study is the first to present a comprehensive, national overview of how court-imposed fines and fees are affecting people across the country.  Using data from a nationally representative survey, we examine the impacts of court-imposed debt on peoples’ daily lives.

Our findings reveal a disturbing trend unfolding among working families impacted by fines and fees: money needed for necessities like food, housing, and healthcare is often being redirected to pay off court debt.  Advocates for fines and fees reform have collected thousands of stories of families sacrificing basic necessities for fear of being jailed and arrested on account of outstanding court debt.  But for the first time, with this survey, we have national data documenting the extent to which fines and fees are destabilizing families and jeopardizing their ability to access the building blocks that support survival, stability, and a chance at success.

Notable sentencing research in recent special issue of "Law and Human Behavior"

I just tripped across the February 2023 issue of the journal "Law and Human Behavior," which is labeled as "Special Issue: Racial Justice in the Criminal Justice and Legal Systems."  This issue has lots of notable research, and sentencing fans might be especially interested in these pieces:

"The trial tax and the intersection of race/ethnicity, gender, and age in criminal court sentencing" by Peter S. Lehmann

"The eye of the beholder: Increased likelihood of prison sentences for people perceived to have Hispanic ethnicity" by Erik Girvan and Heather Marek

"Does 'Jamal' Receive a Harsher Sentence Than 'James'? First-Name Bias in the Criminal Sentencing of Black Men" by Dushiyanthini (Toni) Kenthirarajah, Nicholas P. Camp, Gregory M. Walton, Aaron C. Kay and Geoffrey L. Cohen

Prison Policy Initiative details "Punishment Beyond Prisons 2023: Incarceration and supervision by state"

Prison Policy Initiative has produced this intricate new report detailing how many folks are under correctional control in every state and throughout the entire US.  The report is titled "Punishment Beyond Prisons 2023: Incarceration and supervision by state," and here is how it gets started:

The U.S. has a staggering 1.9 million people behind bars, but even this number doesn’t capture the true reach of the criminal legal system.  It’s more accurate to look at the 5.5 million people under all of the nation’s mass punishment systems, which include not only incarceration but also probation and parole.

Altogether, an estimated 3.7 million adults are under community supervision (sometimes called community corrections) — nearly twice the number of people who are incarcerated in jails and prisons combined.  The vast majority of people under supervision are on probation (2.9 million people), and over 800,000 people are on parole.  Yet despite the massive number of people under supervision, parole and probation do not receive nearly as much attention as incarceration.  Policymakers and the public must understand how deeply linked these systems are to mass incarceration to ensure that these “alternatives” to incarceration aren’t simply expanding it.

We’ve designed this report specifically to allow state policymakers and residents to assess the scale and scope of their entire correctional systems.  Our findings raise the question of whether community supervision systems are working as intended or whether they simply funnel people into prisons and jails — or are even replicating prison conditions in the community.  The report encourages policymakers and advocates to consider how many people under correctional control don’t need to be locked up or monitored at all, and whether high-need individuals are receiving necessary services or only sanctions.

In this update to our 2018 report, we compile data for all 50 states and D.C. on federal and state prisons, local jails, jails in Indian Country, probation, and parole.  We also include data on punishment systems that are adjacent to the criminal legal system: youth confinement and involuntary commitment.  Because these systems often mirror and even work in tandem with the criminal legal system, we include them in this broader view of mass punishment. We make the data accessible in one nationwide chart, 100+ state-specific pie charts and a data appendix, and discuss how the scale and harms of these systems can be minimized.

New Human Rights for Kids report documents those imprisoned for crimes committed as children

The group Human Rights for Kids has released this big new report titled "Crimes Against Humanity: The Mass Incarceration of Children in the US." Here is part of the report's executive summary:

The extensive negative impact on children from our practice of transferring them into the adult criminal justice system and treating them as if they were adults has been well-documented by state and federal government agencies, researchers, advocates and the press. What has not been documented to date, is the extent of the impact of these policies. This report provides the first ever snapshot and national estimate of the number of people in our prisons who have been there since they were children.

We gathered data from 45 states on every individual currently incarcerated who was under the age of 18 at the time of their offense. Our findings revealed that U.S. prisons are filled with at least 32,359 individuals whose crimes were committed as children....

Beginning in the summer of 2021, we requested data from departments of corrections in all 50 states and the District of Columbia on individuals who are currently incarcerated in adult prisons who committed their offense when they were under the age of 18. We received data from 45 states. Our analysis surfaced trends and findings across sentence length, decade of incarceration, gender, race and ethnicity. In addition to aggregating the data, we also conducted a comparative analysis to highlight which state practices constituted the worst human rights violations across categories.

We are currently incarcerating approximately 32,359 individuals in ourprisons for crimes they committed as children.  Some were so young they were still subject to truancy laws, and an astonishing number weren’t even teenagers.  They comprise a full 3.1% of the United States’ overall state prison population –- the equivalent of an entire prison full of children in every state in the country.  Notably, this is close to the total number of children in youth prisons of 36,469.  We incarcerate more children as adults in our prison system than the total combined prison populations of Denmark, Iceland, Ireland, Northern Ireland, Norway, Sweden and Scotland.  In fact,there are more people in our prisons for crimes they committed as children than people in prison who committed their crimes as adults in 76.68% of the countries and independent territories in the world.

US Sentencing Commission releases "geographic sentencing data" from FY22

I just saw that the US Sentencing Commission this week posted here its "geographic sentencing data" for Fiscal Year 2022.  The USSC webpage has links to localized data reports that provide all sorts of fascinating "data slices" about the federal sentencing world. Here is how the webpage explains the over 100 localized reports:

These reports examine federal sentencing statistics from each judicial district, the districts within each judicial circuit, and the districts within each state. Each report compares the statistics from the respective district, circuit, or state to the nation as a whole. Each set consists of the following figure and tables:

• Figure A - Federal Offenders by Type of Crime
• Figure B - Distribution of Primary Drug Type in Federal Drug Cases
• Table 1 - Distribution of Federal Offenders by Type of Crime
• Table 2 - Guilty Pleas and Trials in Each Circuit and District
• Table 3 - Guilty Pleas and Trials by Type of Crime
• Table 4 - Sentence Type by Type of Crime (National)
• Table 5 - Sentence Type by Type of Crime (District)
• Table 6 - Incarceration Rate of U.S. Citizen Offenders Eligible for Non-Prison Sentences by Type of Crime
• Table 7 - Sentence Length by Type of Crime
• Table 8 - Sentence Imposed Relative to the Guideline Range
• Table 9 - Sentence Imposed Relative to the Guideline Range in Each Circuit and District
• Table 10 - Sentence Imposed Relative to the Guideline Range by Type of Crime

Just a few clicks on some of the circuit reports and glances at Figure A highlight some interesting (though perhaps unsurprising) data about how very different caseload mixes can be in different regions.  For example, in the Fifth Circuit's district courts, nearly 60% of federal cases sentenced in FY 2022 were immigration cases, while about 20% were drug cases and less than 8% were firearm cases.  But, in the First Circuit's district courts, nearly 50% of the federal cases sentenced in FY 2022 were drug cases, while nearly 13% were firearm cases and less than 6% were immigration cases.

"Racial Bias, Accomplice Liability, and the Felony Murder Rule: A National Empirical Study"

The title of this post is the title of this new paper authored by G. Ben Cohen, Justin Levinson and Koichi Hioki now available via SSRN. Here is its abstract:

Inside the fraught history of American homicide law sit two long-criticized doctrines, felony murder and accomplice liability.  Though each of these rules have separately faced intense criticism for their resistance to the supposedly foundational principles of moral culpability and individual responsibility, their legacy must also be defined by the way they function symbiotically and specifically to heighten racialized punishment.  This Article addresses the weighty combined reach of the accomplice liability and felony murder doctrines and proposes that racial bias has fueled the operation and survival of the rules.  Specifically, it suggests that implicit racial bias has led to the automatic individuation of white men who are involved in group crimes, while at the same time created automatic de-individuation for Black and Latino men in similar situations, rendering these two doctrines complicit in state sanctioned racialization.

While legislative and judicial power exist to constrain regimes that unfairly expand criminal liability while ignoring criminal responsibility, the Article argues that the phenomenon of white individualization sustains these doctrines when they would otherwise have been discarded.  A national empirical study the authors conducted supports the claim of racialized group liability in the felony murder rule, demonstrating that Americans automatically individualize white men, yet automatically perceive Black and Latino men as group members. In addition to this core finding, the study also found that mock jurors disproportionately penalized men with Latino-sounding names compared to men with white or Black-sounding names, ascribing to them the highest levels of intentionality and criminal responsibility in a group robbery and ensuing homicide.  Contextualized within the troubled history of the felony murder and accomplice liability rules, the Article concludes by calling for the abandonment of the felony-murder doctrine in group liability situations.

"Mental Illness as a Sentencing Determinant: a Comparative Case Law Analysis Based on a Machine Learning Approach"

The title of this post is the title of this new paper authored by Mia Thomaidou and Colleen Berryessa now available via SSRN.  Here is its abstract:

This study identifies factors that contribute to sentencing outcomes for criminally sentenced individuals experiencing mental disorders, in two U.S. states with divergent sociopolitical ideologies.  Recent case law (n = 130) from appellate courts in New York and Kansas (from 2020 to 2021) was analyzed using regression and machine learning to predict sentence severity for individuals experiencing mental disorders.  Across both states, trauma-related and personality disorders led to the most severe sentences, while paraphilia, addiction, and mood disorders had the lowest probability of imprisonment.  Sentencing outcomes in Kansas were significantly more severe as compared to New York.  A classification analysis identified important patterns of sentencing determinants that predicted which mental disorders were more likely to lead to incarceration.  Findings and implications are discussed in relation to punishment disparities, as well as the potentials and pitfalls regarding the use of machine learning approaches in criminal justice research and policy. 

US Sentencing Commission releases FY 2023 first quarter sentencing data

Today the US Sentencing Commission released on its website its latest quarterly data report which sets forth "Preliminary Fiscal Year 2023 Data Through December 31, 2022."  These new data provide the latest accounting of how the COVID era continues to echo through federal sentencing.  For example, as reflected in Figure 2, while the three quarters prior to the pandemic averaged roughly 20,000 federal sentencings per quarter, the three quarters closing out 2020 had only between about 12,000 and 13,000 cases sentenced each quarter.  Calendar year 2021 had a partial rebounding of total cases sentenced, but the "new normal" seems to be just over 15,000 total federal cases sentenced each quarter (and Figure 2 shows that a decline in immigration cases primarily accounts for the decrease in overall cases sentenced).

As I have noted before, the other big COVID era trend was a historically large number of below-guideline variances being granted, and this trend has now extended over the last 10 quarters of offiical USSC data (as detailed in Figures 3 and 4).  I suspect this trend is just another facet of the different caseload and case mix.  In this most recent quarter, the official data show that only 42.2% of all federal sentences are imposed "Within Guideline Range."  This number is not an historic low, but it continues the modern statistical reality that now more federal sentences are imposed outside the guideline range (for a wide array of reasons) than are imposed inside the range.

There are a lot of interesting data and stories to mine from the last USSC data report, but for some reaosn I was especially struck by the data on drug sentencing reflected in Figures 11 and 12.  These figures show, for the latest quarter, that over 47% of all federal drug sentencings involved methamphetamine, which is more of the drug sentencingcaseload than powder and crack cocaine, heroin and fentanyl combined.  Morever, the average sentence for all those meth cases is over eight years in prison, whereas the average for all the others is under six years.  In other words, the federal "war on drugs" these days is much more focused upon, and imposes longer prison sentencing upon, the meth defendants than anyone else. 

"Judicial Scarring"

The title of this post is the title of this new empirical paper authored by Karthik Srinivasan available via SSRN.  Here is its abstract:

I document that experienced decision makers can be influenced by irrelevant events in a high stakes setting, felony sentencing in Cook County.  Using a stacked difference-in-differences design, I estimate that judges hand down sentences that are 13% longer after sentencing a first degree murder.  The effect is twice as large for defendants who resemble the murderer along the dimensions of race and charge severity.  The bias affects 6% of defendants on an ongoing basis and temporarily increases the Black sentencing penalty by 91%.

"Is Expanding Eligibility Enough?: Improving Record Sealing Access and Transparency in Ohio Courts"

The title of this post is the title of this notable new report authored by Jana Hrdinova and now available via SSRN. (Through my work at the Drug Enforcement and Policy Center, I was able to review a prior draft of this important paper about record sealing data.)  Here is the paper's abstract:

The collateral consequences stemming from a criminal conviction are far reaching and long-lasting, affecting people’s ability to obtain housing, diminishing employment opportunities, and limiting educational attainment.  In the last decade, some research has shown that record sealing and record expungement can have significant benefits for individuals through increased economic prosperity and for communities through reduced recidivism.  Unfortunately, research also indicates that in states that require individuals to file a petition to get their record sealed, only a small percentage of eligible individuals take advantage of this remedy.

Over the last decade, the Ohio General Assembly significantly broadened eligibility criteria for record sealing and expungement.  But whether laws focused solely on broadening eligibility have a significant impact on record sealing utilization remains an understudied topic.  The data from our research indicates a 55% increase in the number of granted record sealing applications in the state of Ohio from 2011 to 2021, but also suggests a relatively low rate of uptake when compared to the potential pool of eligible residents.  Additionally, we report on the lack of jurisdiction specific data resulting in inability to compare utilization rate across jurisdictions, as well as lack of accurate and up to date information about eligibility criteria and record sealing forms on court websites. In conclusion we provide a set of recommendations for addressing identified challenges.

"Prosecutors as punishers: A case study of Trump-era practices"

The title of this post is the title of this notable new article authored by Mona Lynch for the journal Punishment & Society that is now available online. Here is its abstract:

Recent punishment and society scholarship has addressed the limits of policy reforms aimed at reducing mass incarceration in the U.S.  This work has focused in particular on the political dimensions of penal legal reform and policy-making, and the compromises and shortcomings in those processes.  Nearly absent in this scholarship, however, has been empirical and theoretical engagement with the role of front-line prosecutors as facilitators and/or resistors to downsizing efforts.

Using the case of the U.S. federal criminal legal system's modest efforts to decrease the system's racially disparate and punitive outcomes, this paper elucidates the fragile nature of such reforms by delineating the critical role that front-line prosecutors play in maintaining punitive approaches.  Focusing specifically on federal prosecutorial policy and practices in the Trump era, I draw on a subset of data from an interdisciplinary, multi-methodological project set in distinct federal court jurisdictions in the U.S. to examine how front-line prosecutors were able to quickly reverse course on reform through the use of their uniquely powerful charging and plea-bargaining tools.  My findings illustrate how federal prosecutors pursued more low-level defendants, and utilized statutory “hammers,” including mandatory minimums and mandatory enhancements to ensure harsh punishments in a swift return to a war-on-crime.

"Proving Actionable Racial Disparity Under the California Racial Justice Act"

The title of this post is the title of this new article authroed by Colleen V. Chien, W. David Ball and William A. Sundstrom now available via SSRN. Here is its abstract:

Racial disparity is a fact of the US criminal justice system, but under the U.S. Supreme Court’s holding in McCleskey v. Kemp, racial disparities — even sizable, statistically significant disparities — do not establish an Equal Protection violation without a showing of “purposeful discrimination.”  The California Racial Justice Act (CRJA), enacted in 2020 and further amended in 2022, introduced a first-of-its kind test for actionable racial disparity even in the absence of a showing of intent, allowing for relief when the “totality of the evidence demonstrates a significant difference” in charging, conviction, or sentencing across racial groups when compared to those who are “similarly situated” and who have engaged in “similar conduct.”

Though the CRJA was enacted over two years ago, two obstacles have made its promised remedies exist largely on paper — confusion about how to apply its new test and a lack of access to the data needed to demonstrate a significant difference.  This article overcomes these obstacles by exploring and interpreting the significant difference test and by analyzing a database of disparities that enables controls for criminal history and geography (similarly situated) and overlapping elements (similar conduct) based on comprehensive data from the California Department of Justice.  We also present two case studies that demonstrate how defendants might establish an initial showing of significant difference sufficient to successfully move for discovery.

USSC publishes 2022 Annual Report and latest Sourcebook of Federal Sentencing Statistics

Via email this morning, I learned that the US Sentencing Commission published on its website today its 2022 Annual Report and latest Sourcebook of Federal Sentencing Statistics.  Both data-rich publications have lots of interesting statistics providing lots of interesting views of the realities of (fiscal year) 2022 federal sentencing.  The email I received from the USSC flagged these "FY22 Fast Facts":

The Sourcebook presents information on the 64,142 federal offenders sentenced in FY22 (October 1, 2021 through September 30, 2022) — a sentencing caseload that increased by 6,855 from the previous fiscal year.

• Drug trafficking, immigration, firearms, and fraud crimes together comprised 82% of the federal sentencing caseload in FY22.  

• Methamphetamine continued to be the most common drug type in the federal system (49% in FY22).

• The portion of drug cases involving fentanyl increased markedly over the last year, such that fentanyl cases were the third most common among all drug cases. 

• Methamphetamine trafficking continued to be the most severely punished federal drug crime (94 months, representing an increase of 4 months from the previous year).

• 65% of drug offenders were convicted of an offense carrying a mandatory minimum penalty, holding relatively steady from the previous year.

New Mexico seemingly poised to be latest state to elimination juvenile LWOP (after new press report about lost juve LWOPers)

This local press piece, headlined "Proposal to end juvenile life sentences in New Mexico on its way to governor," reports on notable new legislative developments in Land of Enchantment.  Here are some details:

In the early-morning hours Monday, the state House signed off on legislation that would abolish the possibility of a life sentence without parole for someone who committed a serious crime before they turned 18.  It would ensure that juveniles sent to prison would get a parole hearing 15 to 25 years into their sentence, depending on the severity of the underlying conviction.  Release wouldn’t be guaranteed, just a parole hearing.

The proposal picked up more support this year among legislators — following the failure of a similar proposal last year — and is now on its way to the desk of Gov. Michelle Lujan Grisham.  “A lot of meaningful work has happened in people’s hearts this year,” Long said in an interview.

She was in the gallery as the House took up debate on the proposal about 11pm Sunday and adopted the measure at 2:15am Monday, the last approval necessary to send it to the governor.  The House passed the bill on an 37-25 vote.  “Children are works in progress,” said House Majority Leader Gail Chasey, D-Albuquerque, “and we need sentencing options that leave room for their potential to experience positive transformations.”

Republican lawmakers blasted the proposal. Some crimes, they said, are so heinous that a parole hearing shouldn’t even be possible.  Rep. Stefani Lord, R-Sandia Park, said the hearings will reopen trauma for families.  “I don’t see how this is good for grieving parents or our community,” she said....

In the Senate, six Republicans support the bill. But the House vote was along party lines, with Democrats in favor and Republicans opposed. A year ago, the proposal died in the House without reaching the floor for a vote by the full chamber.

This year’s proposal makes changes intended to address the opposition. It establishes a tiered schedule of parole hearings based on the severity of the crime, rather than calling for hearings at 15 years across the board. And this year lawmakers have encountered plenty of advocates in person, including parents speaking about their own children and young adults sharing stories of redemption....

About 75 people would be affected by the bill, according to the American Civil Liberties Union of New Mexico, making them eligible for parole earlier than they would otherwise....  If approved by the governor, New Mexico would become the 27th state to end juvenile life sentences without parole, according to the Sentencing Project, an advocacy group.

Interestingly, ProPublica has this notable recent piece about juvenile LWOPers in New Mexico headlined "New Mexico Has Lost Track of Juveniles Locked Up for Life. We Found Nearly Two Dozen."  Here are short excerpts from the lengthy piece:

Gov. Michelle Lujan Grisham’s office has indicated that she will likely sign the legislation, if it is passed, by early April; it would go into effect this summer. In the meantime, officials in her administration could not answer basic questions about the number of prisoners affected and were unclear about which office is responsible for maintaining that information.

Carmelina Hart, spokesperson for the corrections department, initially sent ProPublica the names of 13 people in New Mexico’s prison system who were sentenced to life as children, which she said was the extent of the cohort. But a disclaimer below the list read, “Due to inconsistencies and mistakes over decades of data entry, as well as ensuing attempts of varying success to fix previous inaccuracies over that time, it is virtually impossible to conclude that all of these data are entirely correct.”...

Hart emphasized that the agency does have records of every person serving in its facilities, and that if the bill becomes law, NMCD will take the appropriate steps to ensure that it is in compliance....

One subset of New Mexico’s juvenile lifers who seem to have been disproportionately forgotten are those serving their time in out-of-state prisons.  Jerry Torres and Juan Meraz, for example, are both in the custody of the New Mexico Corrections Department for crimes they committed as juveniles in the state, yet they are locked up in Arizona — in a for-profit prison operated by the company CoreCivic.

"Evaluating the (F)utility of Mandatory Minimum Sentencing Laws in Pennsylvania"

The title of this post is the title of this new article recently published in the Justice Evaluation Journal and authored by Nicole Frisch-Scott, Anat Kimchi and Kristofer Bucklen.  Here is its abstract:

In the current criminal justice policy sphere mandatory minimum sentencing serves two important purposes 1) they are used as a punitive response to immediate crime concerns and 2) their removal is viewed as a tool to conserve resources, decarcerate, and promote fairness in sentencing.  Though much research explores how the passage of these laws relates to crime, the literature has not focused on the public safety implications of removing mandatory minimum sentences. Using a comparative interrupted time-series approach, the present work investigates whether a Pennsylvania Supreme Court decision that invalidated several mandatory minimum sentencing provisions impacted the state’s crime rate.  We find little to no evidence of a discrete shift in overall or type-disaggregated crime rates, or changes in the slope of any crime trend when the state reduced their use of mandatory minimums.  These findings tentatively suggest that many mandatory minimums can be repealed without risking public safety.

BJS releases interesting data on "Employment of State and Federal Prisoners Prior to Incarceration, 2016"

The Bureau of Justice Statistics today released this new web report presenting data on employment of state and federal prisoners in the 30 days prior to arrest for the offense for which they were incarcerated. The findings are based on data collected in 2016, so are a bit dated. They are still interesting, and here are some of the listed "Key Findings."

• More than 6 in 10 state (61%) and federal (63%) prisoners were employed in the 30 days prior to arrest for the offense for which they were incarcerated, with about half (49% state and 54% federal) having a full-time job.

• About a quarter of persons in state (24%) and federal (25%) prison were unemployed and not looking for work in the 30 days prior to arrest.

• Females in state (47%) and federal (55%) prison were less likely to be employed than males in state (62%) and federal (64%) prison.

• Among state prisoners, whites and Hispanics (66% each) were more likely than blacks (54%) to be employed in the 30 days prior to arrest. Among persons sentenced to serve time in federal prison, whites (64%) were more likely than blacks (54%) and American Indians or Alaska Natives (52%) and less likely than Hispanics (71%) and Asians, Native Hawaiians, or other Pacific Islanders (77%) to be employed in the 30 days prior to arrest.

• Non-U.S. citizens in state (81%) and federal (78%) prison were more likely than U.S. citizens in state (60%) and federal (58%) prison to be employed in the 30 days prior to arrest.

• Almost two-thirds of persons in state prison being held for violent (63%) offenses were employed in the 30 days prior to arrest, compared to more than half of those being held for property (57%) or drug (53%) offenses.  Among persons in federal prison, 80% of those serving time for property, 67% for public-order, 60% for drug, and 58% for violent offenses were employed in the 30 days prior to arrest.

• Persons in state and federal prison (59% in each) with one or more prior incarcerations were less likely to be employed than those in state (69%) and federal (73%) prison with no prior incarcerations. More than half of state (54%) and federal (51%) prisoners whose age at first arrest was younger than 18 were employed in the 30 days prior to arrest, compared to more than two-thirds of those in state (69%) and federal (72%) prison whose age at first arrest was 18 or older. through face-to-face interviews with a national sample of state and federal prisoners.

CCJ report explores "The Relationship Between Sentence Length, Time Served, and State Prison Population Levels"

I keep noting this post from last year discussing the Council of Criminal Justice's impressive Task Force on Long Sentences, in part because that Task Force is continuing to produce all sorts of important research and analysis concerning long sentences (see prior posts linked below).  The latest report, which is available here, is authored by Gerald Gaes and Julia Laskorunsky and is titled "The Relationship Between Sentence Length, Time Served, and State Prison Population Levels."  Here is the part of the report's introduction and "key takeaways": 

Previous research for the Task Force shows that in recent years the share of the total U.S. prison population with sentences of 10 or more years has increased, driven by fewer people serving shorter terms.  In 2019, 57% of people in prison were serving a long sentence, up from 46% in 2005.  Over the same period, there was a 60% increase in the average amount of time served by people with long sentences.

This work builds on research conducted as part of the Robina Institute of Criminal Law and Criminal Justice’s Prison Release: Degrees of Indeterminacy (DOI) project, which examined the statutory and administrative policy frameworks that govern prison release (and thus time served) in each state, evaluated how these policies produced sizeable changes to time served in Colorado, and explored how back-end release discretion affects prison population levels across the United States.  This brief summarizes the relevant findings from the DOI project and provides additional analysis of the relationship between sentence length and time served.

Key Takeaways

• Actual time served in prison is often quite different from the sentence length pronounced in court, and therefore sentence length alone only partially explains the individual and policy-level implications of long sentences.
• The relationship between sentence length and time served varies greatly across states and jurisdictions due to the difference in the legal and statutory framework that governs prison release.
• States that have higher than average sentence length also have higher than average time served, but the relationship between these two factors is modest.
• The average judicial maximum sentence in states with highly indeterminate systems (7 years) is twice as long as in highly determinate states (3.5 years). However, the difference in average time served in highly indeterminate and highly determinate states is much narrower, ranging between 2.1 and 2.6 years.
• Some states are much more likely to impose long prison sentences than others. The proportion of people entering prison with long sentences ranges from 2% in Colorado to 66% in Michigan.
• Individuals serving long sentences in states with highly determinate systems spend, on average, nearly three times as long in prison as individuals serving long sentences in states with highly indeterminate systems.
• Nationally, back-end factors such as the allocation of sentence credit discounts, and for paroling states, the parole release framework explain more of the variation (60%) of average time served than variation in average sentence length (40%).
• States with identical average sentence length can have different average time served based on the degree of indeterminacy and back-end factors. For example, Oregon and Texas both had an average sentence length of 4.4 years in 2016, yet the average time served in Texas (2.1 years), a state with a high degree of indeterminacy, was lower than in Oregon (3.5 years), a state with a low degree of indeterminacy.

Prior related posts on CCJ's Task Force on Long Sentences:

• Notable CCJ new task force examining long prison terms
• Council on Criminal Justice releases "Long Sentences by the Numbers" 
• Council on Criminal Justice releases "Long Sentences: An International Perspective" 
• Council on Criminal Justice releases Illinois analysis of "The Public Safety Impact of Shortening Lengthy Prison Terms" 
• CCJ releases "Long sentences, better outcomes: Opportunities to improve prison programming" 

BJS releases data on "Correctional Populations" and "Probation and Parole" at end of 2021

The Bureau of Justice Statistics today released its latest detailed accounting of national correctional populations and populations on probation and parole at the close of 2021. This BJS press release reports on some highlights and provides links to the full documents with lots and lots of data:

The total correctional population in the United States fell 1% from yearend 2020 to 2021, according to statistics in Correctional Populations in the United States, 2021 – Statistical Tables and Probation and Parole in the United States, 2021, two reports released today by the Bureau of Justice Statistics.  The number of persons held in prison or jail or supervised in the community on probation or parole decreased by 61,100, down to an estimated 5,444,900.  Overall, an estimated 1 in 48 U.S. residents age 18 or older were under correctional supervision at yearend 2021, down from 1 in 47 in 2020.

“Although the COVID-19 pandemic caused significant short-term changes in correctional estimates, the overall correctional population continues to decline,” said Dr. Alexis Piquero, Director of the Bureau of Justice Statistics.

Over the 10-year period from 2011 to 2021, the U.S. correctional population declined 22%.  A drop in the number of persons supervised in the community on probation accounted for 65% of this overall change, while decreases in the number of persons incarcerated in state and federal prison accounted for 26% of the change. 

In 2021, the U.S. incarceration rate increased for the first time in 15 years.  However, the rate was still lower than the pre-COVID-19 pandemic rate of 810 per 100,000 in 2019.  The increase in the incarceration rate was driven by a 16% growth in the number of persons housed in local jails, which held an additional 87,200 persons from 2020 to 2021.

In 2021, the community supervision rate fell to a 21-year low of 1,440 persons on probation or parole per 100,000 adult U.S. residents, after declining each year since it peaked at 2,240 persons per 100,000 in 2007. At yearend 2021, an estimated 3,745,000 adults were under community supervision, down 136,600 persons from January 1, 2021. During 2021, the probation population decreased in 31 states and in the U.S. federal system and increased in 18 states and the District of Columbia. The rate of adults on probation in 2021 was at its lowest point in 36 years (1,143 per 100,000 adult U.S. residents)....

Changes in the demographic characteristics of the U.S. correctional population were small from 2020 to 2021 but were greater than 20% over the decade from 2011 to 2021.  The number of males in the total correctional population declined less than 1% (down 28,300) from 2020 to 2021, while the number of females decreased 3% (down 32,800). Compared to 2011, the number of males under correctional supervision in 2021 declined by 21% and females decreased 25%.  Over that same decade, the number of black persons under correctional supervision decreased more than 27%, while the number of Hispanic persons declined 21% and whites declined 20%.

“It is important to note that while blacks and Hispanics remain incarcerated at greater rates than whites, we are seeing long-term reductions in those differences,” said Director Piquero.

Correctional Populations in the United States, 2021 – Statistical Tables was written by BJS Statisticians E. Ann Carson, PhD, and Richard Kluckow, DSW. It provides statistics from several BJS data collections on persons living in the community while supervised by probation or parole agencies and those incarcerated under the jurisdiction of state or federal correctional authorities or in the custody of local jails.

Probation and Parole in the United States, 2021 was written by BJS Statistician Danielle Kaeble. Findings are from BJS’s Annual Probation Survey, Annual Parole Survey and Federal Justice Statistics Program, which are the only national data collections that cover community corrections in all 50 states, the District of Columbia and the U.S. federal system.

CCJ releases "Long sentences, better outcomes: Opportunities to improve prison programming"

I keep noting this post from earlier this year discussing the Council of Criminal Justice's impressive Task Force on Long Sentences, in part because that Task Force is continuing to produce all sorts of interesting documents about long sentences (see prior posts linked below).  The latest report, available here, is authored by Roger Przybylski and is titled "Long sentences, better outcomes: Opportunities to improve prison programming."  Here is the report's introduction: 

People serving long prison sentences — defined as sentences of 10 years or more — make up a large and growing share of the prison population in the United States.  In 2005, roughly 459,000 people were serving long sentences, accounting for 46% of the state prison population.  By 2019, the number had grown to 524,000 and the proportion to 57%.

Policymakers, practitioners, and researchers have long been interested in prison-based programming that prepares people to engage productively in their communities post-release and reduces recidivism (i.e., re-arrest, reconviction, or reincarceration).  Although a robust body of knowledge on the types of prison programs most strongly associated with reduced recidivism has been developed over the past 40 years, research on the effectiveness of these programs has not focused specifically on participants serving long sentences.

Fewer than 10 prison systems have implemented programs specifically for people serving long sentences in recent years; these programs are in their infancy and have not yet been rigorously evaluated for effectiveness.  They focus on enhancing skills for adapting to prison life and/or mentoring younger incarcerated individuals serving shorter sentences — and are not designed to comprehensively meet the therapeutic, reentry, and other needs of people serving long sentences.  As a result, relatively little is known about the development, implementation, and effectiveness of programming that targets the unique needs of those in prison for long periods of time.

This brief describes the specialized needs of individuals serving long sentences, explores how prison-based programming might address those needs, describes existing programs for people serving long sentences, examines common obstacles to program access and engagement for this population, and identifies opportunities to enhance positive outcomes, both during custody and after release.

Prior related posts on CCJ's Task Force on Long Sentences:

• Notable CCJ new task force examining long prison terms
• Council on Criminal Justice releases "Long Sentences by the Numbers" 
• Council on Criminal Justice releases "Long Sentences: An International Perspective" 
• Council on Criminal Justice releases Illinois analysis of "The Public Safety Impact of Shortening Lengthy Prison Terms" 

Sentencing Project releases "Ending 50 Years of Mass Incarceration: Urgent Reform Needed to Protect Future Generations"

The folks at The Sentencing Project have a new website and a new "featured campaign" (with its own webpage) titled "50 Years and a Wake Up: Ending The Mass Incarceration Crisis In America." As explained on the webpage: "The campaign raises awareness about the dire state of the U.S. criminal legal system, the devastating impact of incarceration on communities and families, and proposes more effective crime prevention strategies for our country."

The most recent publication from the campaign is titled "Ending 50 Years of Mass Incarceration: Urgent Reform Needed to Protect Future Generations."  This eight-page document has a number of graphics and charts; its text begins this way (footnotes removed):

By year end 2021, the U.S. prison population had declined 25% since reaching its peak in 2009.  Still, the 1.2 million people imprisoned in 2021 were nearly six times the prison population 50 years ago, before the prison population began its dramatic growth. The United States remains a world leader in incarceration, locking up its citizens at a far higher rate than any other industrialized nation.

At the current pace of decarceration, averaging 2.3% annually since 2009, it would take 75 years — until 2098 — to return to 1972’s prison population.

It is unacceptable to wait more than seven decades to substantively alter a system that violates human rights and is out of step with the world, is racially biased, and diverts resources from effective public safety investments.  To achieve meaningful decarceration, policymakers must reduce prison admissions and scale back sentence lengths — both for those entering prisons and those already there.  The growing movement to take a “second look” at unjust and excessive prison terms is a necessary first step.  As the country grapples with an uptick in certain crimes, ending mass incarceration requires accelerating recent reforms and making effective investments in public safety.

Another longer document in this campaign was released a few weeks ago and is called "Mass Incarceration Trends." Among other part of that document is a chart highlighting that an era of massively increased incarceration also brought massive increases in community supervision:

As depicted in Figure 3, probation and parole have expanded both in the absolute number and length of supervision for several decades now.  Between 1980 and 2020, the number of people on probation nearly tripled and the number of people under parole supervision nearly quadrupled.

Council on Criminal Justice releases Illinois analysis of "The Public Safety Impact of Shortening Lengthy Prison Terms"

I keep noting this post from earlier this year discussing the Council of Criminal Justice's impressive Task Force on Long Sentences.  That Task Force keeps producing all sorts of interesting documents about long sentences (see prior posts here and here), and this latest report is authored by Avinash Bhati and titled "The Public Safety Impact of Shortening Lengthy Prison Terms."  This press release about the report provides this background and some particulars:

Shortening Illinois prison sentences of 10 years or more by modest amounts would result in very few additional arrests, cutting the state prison population significantly without jeopardizing public safety, according to a new analysis for a Council on Criminal Justice (CCJ) task force.

Reducing lengthy prison terms by as much as 30% would result in “a virtually undetectable increase” (less than one tenth of one percent) in annual arrests statewide, according to the report for CCJ’s Task Force on Long Sentences, which was produced in partnership with the Illinois Sentencing Policy Advisory Council (SPAC). Most additional arrests would be for drug, property, and other nonviolent crimes.

More than 1,100 people were released from Illinois prisons during the three-year study period, after serving a decade or more; the group served an average of nearly 19 years. While any additional arrests are cause for concern, the research estimates that reducing prison time served by those in the study group by one, two, or three years would result in between 11 and 37 additional arrests; in 2020, there were 89,173 total index crime and drug arrests in Illinois. No individual in the study group was estimated to have more than one additional arrest....

The research was conducted by the data analytics firm Maxarth LLC, which analyzed detailed arrest history data for the 1,127 people released from Illinois prisons between June 2016 and June 2019. For those who had served 10 years or more, researchers then created “microsimulations” to estimate the number of arrests that were averted due to the individuals’ long prison stays. (Details on the calculations and analysis can be found in the report methodology.)

Reductions in the size of the prison population, the analysis found, would range from a 2.4% drop if prison terms were trimmed by 10% (or 1.9 years), to a 7.2% cut if sentences were shortened by 30% (or 5.7 years). Such reductions represent potential cost savings. A separate 2021 analysis by SPAC found that a 3,000-person reduction in the average daily prison population, along with a reduction in staffing, could represent nearly $148 million in annual state correctional appropriations. Saltmarsh said that while these reductions in and of themselves would not automatically produce cost savings for Illinois, they could lead legislators to make different choices about how to fund IDOC’s general operations.

US Sentencing Commission releases "Weighing the Impact of Simple Possession of Marijuana: Trends and Sentencing in the Federal System"

This morning, the US Sentencing Commission has released this interesting new report titled "Weighing the Impact of Simple Possession of Marijuana: Trends and Sentencing in the Federal System."  This USSC webpage provides this summary and key findings:

The report entitled Weighing the Impact of Simple Possession of Marijuana: Trends and Sentencing in the Federal System updates a 2016 Commission study and examines sentences for simple possession of marijuana offenses in two respects.  Part One of the report assesses trends in federal sentencings for simple possession of marijuana since fiscal year 2014.  The report then describes the demographic characteristics, criminal history, and sentencing outcomes of federal offenders sentenced for marijuana possession in the last five fiscal years and compares them to federal offenders sentenced for possession of other drug types.

Part Two of the report examines how prior sentences for simple possession of marijuana (under both federal and state law) affect criminal history calculations under the federal sentencing guidelines for new federal offenses.  The report identifies how many federal offenders sentenced in fiscal year 2021 — for any crime type — received criminal history points under Chapter Four of the Guidelines Manual for prior marijuana possession sentences.  The report then assesses the impact of such points on those offenders’ criminal history category, one of the two components used to establish the sentencing guideline range.

Key Findings

Federal Sentencings for Simple Possession of Marijuana

• The number of federal offenders sentenced for simple possession of marijuana is relatively small and has been declining steadily from 2,172 in fiscal year 2014 to only 145 in fiscal year 2021.
• The overall trends were largely driven by one district, the District of Arizona, which accounted for nearly 80 percent (78.9%) of all federal marijuana possession sentencings since 2014.  As the number of such cases in the District of Arizona declined from a peak of 1,916 in 2014 to just two in fiscal year 2021, the overall federal caseload followed a similar pattern.
• Federal offenders sentenced for marijuana possession in the last five fiscal years tended to be male (85.5%), Hispanic (70.8%), and non-U.S. citizens (59.8%).  A little over two-thirds (70.1%) were sentenced to prison; the average prison sentence imposed was five months.
• As of January 2022, no offenders sentenced solely for simple possession of marijuana remained in the custody of the Federal Bureau of Prisons.

Impact of Prior Sentences for Simple Possession of Marijuana

• In fiscal year 2021, 4,405 federal offenders (8.0%) received criminal history points under the federal sentencing guidelines for prior marijuana possession sentences.  Most of the prior sentences (79.3%) were for less than 60 days in prison, including non-custodial sentences.  Furthermore, ten percent (10.2%) of these 4,405 offenders had no other criminal history points.
• The criminal history points assigned under the federal sentencing guidelines for prior marijuana possession sentences resulted in a higher criminal history category for 1,765 of the 4,405 offenders (40.1%).
• Of the 1,765 offenders whose criminal history category was impacted by a prior marijuana possession sentence, most were male (94.2%), U.S. citizens (80.0%), and either Black (41.7%) or Hispanic (40.1%).
• Nearly all (97.0%) of the prior marijuana possession sentences were for state convictions, some of which were from states that have changed their laws to decriminalize (22.2%) or legalize (18.2%) marijuana possession, states that allow for expungement or sealing of marijuana possession records (19.7%), or some combination thereof.  Prior sentences for marijuana possession from these states resulted in higher criminal history calculations under the federal sentencing guidelines for 695 offenders.

Reviewing prosecutions and sentencings two years after January 6 Capitol riots

A number of major papers today provide some major reviews of the prosecution and sentencing of January 6 rioters on the two-year anniversary of the storming of the Capitol.  Here are headlines and links, as well as an except from the story most focused on sentencing outcomes:

From the New York Times, "Two Years Later, Prosecutions of Jan. 6 Rioters Continue to Grow: The Justice Department’s investigation of the Capitol attack, already the largest it has ever conducted, has resulted in 900 arrests, with the potential for scores or hundreds more to come."

From USA Today, "More than 950 people have been charged in Jan. 6 Capitol riot, but investigation 'far from over'"

From the Washington Post, "Review of Jan. 6 cases finds judges give harsh lectures, lighter sentences: Judges have gone below prosecutors’ recommendations three-quarters of time, and below federal sentencing guidelines a little less than 40 percent":

Of more than 460 people charged with felonies, only 69 have been convicted and sentenced so far, mostly for assaulting police or obstructing Congress; all but four have received jail or prison time. The average prison sentence for a felony conviction so far is 33 months, according to a Washington Post database....

About half of the arrests so far have been for misdemeanors, and for those given actual jail time, the average sentence has been 48 days. But most of the misdemeanants have not received any jail time: most have received probation, home detention or halfway house time, or a fine. These defendants are typically rioters who entered the Capitol and didn’t engage with the police, but left a trail of social media posts and photos before, during and after Jan. 6.

If we include those who didn’t receive jail time among the misdemeanor sentences, the average jail time drops to 22 days. The number of defendants being held in jail before trial, or awaiting sentencing, is about 50, according to a list provided by the Justice Department....

For the 25 defendants sentenced so far for assaulting law enforcement, the average sentence has been more than 48 months — in line with the nationwide average for that offense in recent years, according to data from the U.S. Sentencing Commission. Former New York City police officer Thomas Webster received a 10-year term for fighting with an officer and helping breach the outer perimeter. There are still nearly 180 defendants whose assault cases are pending.

The most serious charge for those not accused of assaulting the police has been obstruction of an official proceeding. Only 28 people have been sentenced for obstruction or conspiracy to obstruct the certification of the electoral vote, receiving an average sentence of about 42 months....

The judges appointed by Democratic presidents have imposed jail or prison sentences in 61 percent of their cases, and probation in 18 percent of the cases, while judges appointed by Republican presidents have given jail or prison sentences in 48 percent of their cases, and probation in 34 percent of cases. In the remaining cases, judges have sentenced defendants to home detention or a halfway house, or imposed a fine. Judge Tanya Chutkan, an Obama appointee, has handled 22 sentencings and imposed incarceration in every one, but another Obama appointee, Judge Rudolph Contreras, has handled 16 sentencings and jailed only one defendant.

Judges Dabney Friedrich and Trevor N. McFadden, both Trump appointees, have given probation sentences to about half of their Jan. 6 defendants. McFadden is also the only judge to have acquitted a defendant at trial and the only judge to have imposed only a fine on a defendant.

Another year-end report from the Chief Justice with a few federal criminal caseload highlights

The Chief Justice of the United States always closes out a calendar year by releasing a year-end report on the federal judiciary, and that report typically includes some notable federal criminal justice caseload data.  Chief Justice John G. Roberts' 2022 version of the year end report can be found at this link, and here are some data excerpts that might interesting federal criminal justice fans:

In the regional courts of appeals, filings fell six percent from 44,546 to 41,839 in FY 2022.  This represents a 14 percent drop from FY 2019, the last full year prior to the COVID-19 pandemic.  Total civil appeals were down five percent from the prior year to 22,181.  Criminal appeals were down six percent from the prior year to 9,973.... Prisoner petitions accounted for 22 percent of appeals filings (a total of 9,401), and 86 percent of prisoner petitions were filed pro se, compared with 34 percent of other civil filings....

The federal district courts docketed 68,315 criminal defendant filings in FY 2022, eight percent fewer than the prior year. This represents a 26 percent drop from FY 2019.  The largest categories of criminal defendant filings involved drug offenses, which decreased 15 percent to 19,589, and immigration offenses, which decreased one percent to 19,148....

A total of 122,872 persons were under post-conviction supervision on September 30, 2022, an increase of less than one percent from the prior year and a five percent decrease compared to FY 2019.  Of that number, 109,781 were serving terms of supervised release after leaving correctional institutions, an increase of one percent.  Cases activated in the pretrial services system, including pretrial diversions, fell four percent to 73,690. Pretrial case activations were 32 percent lower than in FY 2019.

Bureau of Justice Statistics releases "Federal Justice Statistics, 2021"

This week, the Bureau of Justice Statistics released this big data report titled simply "Federal Justice Statistics, 2019." This press release about the report provides these highglights (which are only a small sample of data reported):

The study found that arrests by federal law enforcement agencies declined 35% from fiscal year (FY) 2020 to FY 2021, reaching the lowest level over the past two decades.  Due to the coronavirus pandemic, federal arrests declined 81% and cases charged in federal court declined 77%, from March to April 2020, with an additional decline of 25% in arrests and 20% in cases charged, from October 2020 to February 2021.

About 6 in 10 federal arrests in 2021 were for immigration, drug, or supervision violations (48,257).  The largest percentage decrease in arrests from FY 2020 to FY 2021 was for immigration offenses (down 72%), from 51,723 to 14,446 arrests.  Arrests for property offenses increased 11% during this time.

While federal arrests declined substantially from FY 2020 to FY 2021, the number of persons charged with a federal offense in U.S. district court decreased less than 1%, from 66,059 to 65,880.  During that period, the number of persons charged with violent offenses increased 18% and the number charged with public order offenses increased 13%, while the number of persons charged with immigration offenses decreased 18%....

Of the 63,380 defendants adjudicated in federal district courts in FY 2021, about 9 in 10 were convicted.  Among those convicted, nearly three quarters (74%) were sentenced to prison.  The median prison sentence for persons convicted was 37 months.  Among persons sentenced to prison, both white and black defendants were sentenced to a median of 60 months.

The type of sentence imposed in FY 2021 varied by sex, race or Hispanic origin and age of defendants.  Convicted males (77%) were sentenced to prison more commonly than convicted females (59%).  Those sentenced to prison had a median age of 35 years, while those sentenced to probation had a median age of 38 years.  A greater percentage of blacks (85%) and American Indians or Alaska Natives (82%) who were convicted were sentenced to prison compared to convicted persons who were white (77% ), Hispanic (71%) or Asian, Native Hawaiian or Other Pacific Islander (69%).

For the 10-year period from fiscal yearend 2011 to 2021, the number of persons under federal correctional control declined 15%, from 410,887 to 350,543.  The proportion in confi nement or community supervision did not change during that period.  Approximately 3 in 5 of these persons were in secure confinement and 2 in 5 were on community supervision in each year.

"Felony Sentencing in New York City: Mandatory Minimums, Mass Incarceration, and Race"

The title of this post is the title of this new report from the Center for Court Innovation authored by Fred Butcher, Amanda B. Cissner, and Michael Rempel.   The full report runs over 30 pages, but this CCI webpage provides this two-page summary which includes this brief accouting of the report's findings:

Of the more than 65,000 such arrests in 2019, we found a third of people arrested were potentially subject to a mandatory minimum.  That doesn’t mean everyone ultimately received a minimum prison sentence, but the wide eligibility confers outsized power on prosecutors; in plea negotiations, prosecutors can wield the threat of a higher charge with guaranteed, generally lengthy, prison time against someone hesitant to accept a plea.

Arrests, and with them exposure to charges eligible for a mandatory minimum, are the formal entry-point to the criminal legal system.  Our analysis found Black people accounted for 51% of people arrested on a felony in New York City in 2019, more than double their representation in the general population; for white people, the figure was 11%. For arrests with exposure to a mandatory minimum, the disparity was even more striking: Black and Hispanic/Latinx New Yorkers combined to make up 91% of such arrests; for white people, the proportion was only 7%.

Looking at the subgroup of those convicted of a felony, Black people were also more likely to suffer imprisonment and almost six of ten convictions carrying a mandatory minimum sentence went to a Black person.

Indeed, while race was a significant predictor of whether someone convicted of a felony received a prison sentence — 58% of Black versus 43% of white people — an even stronger predictor was a prior felony conviction. Here the overlap — or, for people of color, doublebind — is considerable.  Systemic issues such as underinvestment paired with over-policing of Black and Brown communities increase the likelihood that members of these communities will acquire the kind of criminal history that can trigger, not only a sentence of incarceration, but also exposure to a mandatory minimum (whether actualized or used against them to leverage a less favorable plea).

Lots of new data and a notable date from the US Sentencing Commission

The US Sentencing Commission yesterday published two new data reports: (1) this updated compassionate release data report and (2) this FY 2022 fourth quarter sentencing data.  There are lots of stories within all these data, though I still see the top stories to be those discussed here before: there are dramatic district variations in compassionate release grant rates and there are still relatively few "within guideline" sentences" being imposed by judges.

Specifically, on compassionate release, the three districts of Georgia show one notable example of variation: the Southern District of Georgia has granted only 8 out of 296 sentence reduction motions for a 2.7% grant rate; the Middle District of Georgia has granted only 4 out of 265 sentence reduction motions for a 1.5% grant rate; but the Northern District of Georgia has granted 80 out of 174 sentence reduction motions for a 46% grant rate.  On original sentencing more generally, this most recent USSC data show that, for all of FY 22, only 42% of all federal sentences have been imposed "Within Guideline Range" (and the number is under 28% for "Drug Trafficking" cases).

For various reasons and in various ways, all these data in some sense reflect the consequences of the US Sentencing Commission having to function without a quorum and being unable to amend any guidelines for nearly five years.  But, of course, we now have a fully loaded Commission, and the Commissions are clearly hard at work on guidelines reforms.  We know that because the Commission has now officially announced that it will have a public meeting on January 12, 2023, and that announcement notes the meeting agenda is to include "Possible Vote to Publish Proposed Guideline Amendments and Issues for Comment."

The Bureau of Justice Statistics releases data on "Jail Inmates in 2021" and "Prisoners in 2021"

Just in time to ring in 2023, the Bureau of Justice Statistics in the US Department of Justice has a lot of great new data about incarceration levels and rates as of the end of 2021. This press release, titled "U.S. Jail Population Increased While Prison Population Decreased in 2021," provides these highlights (and links) to the lastest data:

The Bureau of Justice Statistics is announcing the release of statistical tables on Jail Inmates in 2021 and Prisoners in 2021. Of note, the two incarcerated populations diverged in 2021, with the number of persons held in local jails increasing by 16% from 2020, while the number of persons in prison decreased 1%.  Both populations decreased from 2019 to 2020 due to the COVID-19 pandemic.

Regarding the jail population, local jails held 636,300 persons on the last weekday in June 2021, up from 549,100 at midyear 2020.  The number of males confined in local jails increased 15% from 2020 to 2021, while females increased 22%.

The racial and ethnic composition of people held in local jails remained stable from 2020 to 2021.  At midyear 2021, about 49% of people in local jails were white, 35% were black, and 14% were Hispanic. American Indians or Alaska Natives; Asians, Native Hawaiians, or Other Pacific Islanders; and persons of two or more races together accounted for 2% of the total jail population.

At midyear 2021, 29% of persons held in jail (185,000) were convicted, either serving a sentence or awaiting sentencing on a conviction, while 71% (451,400) were unconvicted, awaiting court action on a current charge or held in jail for other reasons.  Unconvicted people in jail accounted for 81% of the increase in the jail population from midyear 2020 to midyear 2021.  Three-quarters (76%) of all persons incarcerated in local jails at midyear 2021 were held for felony offenses (485,700 persons) compared to 18% (114,000) for misdemeanors and 6% (36,600) for other types of offenses.

Based on the occupancy rate, jails are still less crowded than about a decade ago.  At midyear 2021, about 70% of jail beds were occupied, which is higher than the occupancy rate of 60% at midyear 2020 but lower than the rates from 2011 to 2019, which ranged from 81% to 85%.

The number of persons supervised by local jails outside of a jail facility increased by 12,100 (31%) from midyear 2020 to midyear 2021.  At midyear 2021, local jails supervised 50,800 persons in various programs, such as electronic monitoring, home detention, day reporting, community service, alcohol or drug treatment programs, and other pretrial supervision and work programs outside of a jail facility.

Regarding the U.S. prison population, for the eighth consecutive year, the number of persons held in U.S. prisons declined, dropping from 1,221,200 at yearend 2020 to 1,204,300 at yearend 2021.  The overall decline reflected a decrease in prison populations in 32 states that was offset by an increase in 17 states and the federal Bureau of Prisons (BOP). This one-year change is vastly different from 2019 to 2020, when 49 states (data for Idaho are not comparable) and the BOP had a decrease in the number of persons in prison, largely due to the COVID-19 pandemic.

The imprisonment rate for adult U.S. residents in state or federal prison serving a sentence of more than one year also declined (down 2%) from yearend 2020 to 2021, from 460 to 449 sentenced prisoners per 100,000 adult U.S. residents.  Over the 10-year period from 2011 to 2021, the adult imprisonment rate declined 30%.

Among racial and ethnic groups, black persons had the highest imprisonment rate in 2021 (1,186 per 100,000 adult black residents), followed by American Indian/Alaska Natives (1,004 per 100,000), Hispanics (619 per 100,00), whites (222 per 100,000) and Asians (90 per 100,000).  Compared to 2011, adult imprisonment rates declined for all racial and ethnic groups in 2021, including a 40% decrease for black persons, 37% for Hispanics, 34% for Asians, 27% for whites, and 26% for American Indian/Alaska Natives.

Regarding the offense for which people were imprisoned, more than 651,800 persons (62% of all state prisoners) were serving sentences in state prison for a violent offense at yearend 2020, the most recent year for which offense data were available.  Forty-seven percent (66,500) of all persons in federal prison were serving time for a drug offense on September 30, 2021 (the most recent date for which federal prison offense data were available), and an additional 20% (28,500) of persons sentenced to federal prison were serving a sentence for a weapons offense.

At yearend 2021, private facilities contracted to state departments of corrections or the BOP held 96,700 persons, a 3% decrease from yearend 2020.  Local jail facilities held an additional 65,400 state or federal prisoners, down 11% from yearend 2020.  Together, private and local facilities housed more than 13% of the total U.S. prison population in 2021.

The findings in the Jail Inmates in 2021 – Statistical Tables report are based on data from BJS’s Annual Survey of Jails, which BJS has conducted annually since 1982, and Census of Jails, which BJS has conducted periodically since 1970. It is the 35th report in a series that began in 1982.  Findings in the Prisoners in 2021 – Statistical Tables report, the 96th report in the series, are based on data from BJS’s National Prisoner Statistics program, which has collected data on the U.S. prison population annually since 1926.

Jail Inmates in 2021 – Statistical Tables (NCJ 304888) was written by BJS Statistician Zhen Zeng, PhD. Prisoners in 2021 – Statistical Tables (NCJ 305125) was written by BJS Statistician E. Ann Carson, PhD. 

DPIC releases year-end report emphasizing botched executions and no 2022 increases in death penalty support

The Death Penalty Information Center this morning released this annual report under the heading "The Death Penalty in 2022: Year End Report; Public Support for Death Penalty at Near-Record Low Despite Perception that Violent Crime is Up."  Here is the start of the report's introduction, with lots and lots of interesting capital punishment data and discussion thereafter:

In a year awash with incendiary political advertising that drove the public’s perception of rising crime to record highs, public support for capital punishment and jury verdicts for death remained near fifty-year lows.  Defying conventional political wisdom, nearly every measure of change — from new death sentences imposed and executions conducted to public opinion polls and election results — pointed to the continuing durability of the more than 20-year sustained decline of the death penalty in the United States.

The Gallup crime survey, administered in the midst of the midterm elections while the capital trial for the 2018 mass shooting at Marjory Stoneman Douglas High School in Florida was underway, found that support for capital punishment remained within one percentage point of the half-century lows recorded in 2020 and 2021.  The 22 new death sentences imposed in 2022 are fewer than in any year before the pandemic, and just 4 higher than the record lows of the prior two years.  With the exception of the pandemic years of 2020 and 2021, the 18 executions in 2022 are the fewest since 1991.

One by one, states continued their movement away from the death penalty.  On December 13, 2022, Oregon Governor Kate Brown announced the commutation of the capital sentences of all 17 death-row prisoners and instructed corrections officials to begin dismantling the state’s execution chamber.  The commutations completed what she called the “near abolition” of the death penalty by the state legislature in 2019.  Thirty-seven states — nearly three-quarters of the country — have now abolished the death penalty or not carried out an execution in more than a decade.

For the eighth consecutive year, fewer than 30 people were executed and fewer than 50 people were sentenced to death.  The five-year average of new death sentences, 27* per year, is the lowest in 50 years.  The five-year average of executions, 18.6 per year, is the lowest in more than 30 years, a 74% decline over the course of one decade.  Death row declined in size for the 21st consecutive year, even before Governor Brown commuted the sentences of the 17 prisoners on Oregon’s death row.

2022 could be called “the year of the botched execution” because of the high number of states with failed or bungled executions. Seven of the 20 execution attempts were visibly problematic — an astonishing 35% — as a result of executioner incompetence, failures to follow protocols, or defects in the protocols themselves.  On July 28, 2022, executioners in Alabama took three hours to set an IV line before putting Joe James Jr. to death, the longest botched lethal injection execution in U.S. history.  Executions were put on hold in Alabama, Tennessee, Idaho, and South Carolina when the states were unable to follow execution protocols.  Idaho scheduled an execution without the drugs to carry it out.  One execution did not occur in Oklahoma because the state did not have custody of the prisoner and had not made arrangements for his transfer before scheduling him to be put to death.