Sentencing Law and Policy

With eight more executions scheduled, 2024 could conclude with most US executions in nearly a decade

I flagged here last month that a flourish of executions in multiple states had been scheduled over just a week, and all five of those executions were ultimately carried out.  I now see from this Death Penalty Information Center page that eight more executions are scheduled for the final few months of 2024.  If seven of those executions go forward as planned, the US will have completed 26 total execution in 2024, which would be more than in any calendar year since 2015.

Of course, 26 executions in a year is still a relatively paltry number in America's capital punishment history.  In the 1930s, for example, the US averaged well over 150 executions per year.  And from 1995 to 2014, the US states executed, on average, 56 persons per year, and hit a modern peak of 98 executions in 1999.  Still, I find it fascinating that state executions were trending down in the final years of the Trump Administration and now are trending up in the final years of the Biden Administration.  These trends seem especially notable given that candidate Joe Biden pledged to work to "eliminate the death penalty."    

Writing at Inquest, Lee Kovarsky highlights in this new essay how this year's presidential election could prove an inflection point in modern capital punishment history.  The substitle of the piece captures its main theme: "The presidential candidates are worlds apart on the death penalty. The winner could either jolt or sap the energy of the movement to end it."

A deep dive into sentencing patterns for NY felony crime of falsifying business records

This week the New York Times published this lengthy article, headlined "Will Trump Get Jail Time? We Looked at Similar Cases to Find Out," while provides some statistical context regarding sentences in New York for the crimes that Donald Trump will be sentenced for next month.  Here are excerpts from the piece:

The former president’s unruly behavior at the New York trial makes him a candidate for jail time, as does his felony crime of falsifying business records: Over the past decade in Manhattan, more than a third of these convictions resulted in defendants spending time behind bars, The Times’s examination found. Across New York State, the proportion is even higher — about 42 percent of those convictions led to jail or prison time....

Over the past decade or so, the most likely punishment for someone in New York State convicted on a top charge of felony falsification of business records was jail or prison time, according to data from the New York State Division of Criminal Justice Services. The data shows that 204 people ended up behind bars for that crime, while 174 received probation and no jail time.

The Times review of false records convictions in Manhattan alone — which was based on data from state and local agencies and verified by case files retrieved from the clerk’s office — similarly supports the notion that Mr. Trump could spend a few weeks or months in jail.

The Times found 30 cases in Manhattan since 2014 in which a person was convicted and sentenced on a top charge of felony falsification of business records. Of those cases, only five resulted in probation and no jail time, while 11 involved incarceration.

Defendants in nine of the 11 cases were first-time felony offenders like Mr. Trump and received sentences between one week and 364 days in jail, with the most frequent jail sentence being six months. The other two defendants, both of whom had been previously convicted of felonies, received more than a year in prison.

All but one of the other defendants received a so-called conditional discharge, a sentence that allows them to avoid probation or jail if they follow certain conditions, such as maintaining employment or paying restitution. The remaining man received only community service and a fine.

The Sentencing Project releases "Locked Out 2024: Four Million Denied Voting Rights Due to a Felony Conviction"

The Sentencing Project has this timely new report on felon disenfranchisement. Here is the text of the report's "Overview":

Laws in 48 U.S. states ban people with felony convictions from voting. In 2024, an estimated 4 million Americans, representing 1.7% of the voting-age population, will be ineligible to vote due to these laws, many of which date back to the post-Reconstruction era. In this historic election year, questions persist about the stability of democratic institutions, election fairness, and voter suppression in marginalized communities. The systematic exclusion of millions with felony convictions should be front and center in these debates.

This report updates and expands upon a quarter century of work chronicling the scope and distribution of felony disenfranchisement in the United States. As in 2022, we present national and state estimates of the number and percentage of people disenfranchised due to felony convictions, as well as the number and percentage of the Black and Latino populations impacted. This year, we also present state-level data on the degree of disenfranchisement among men and women. Although these and other estimates must be interpreted with caution, the numbers presented here represent our best assessment of the state of U.S. felony disenfranchisement as of the November 2024 election.

Among the report’s key findings:

• An estimated 4 million people are disenfranchised due to a felony conviction, a figure that has declined by 31% since 2016, as more states enacted policies to curtail this practice and state prison, probation, and parole populations declined. Previous research finds there were an estimated 1.2 million people disenfranchised in 1976, 3.3 million in 1996, 4.6 million in 2000, 5.1 million in 2004, 5.7 million in 2010, 5.9 million in 2016, 4.9 million in 2020, and 4.4 million in 2022.
• One out of 59 adult citizens – 1.7% of the total U.S. voting eligible population – is disenfranchised due to a current or previous felony conviction.
• Seven out of 10 people disenfranchised are living in their communities, having fully completed their sentences or remaining supervised while on felony probation or parole.
• In two states – Florida and Tennessee – more than 6% of the adult population, one of every 17 adults, is disenfranchised.
• Florida remains the nation’s disenfranchisement leader in absolute numbers, with over 961,000 people currently banned from voting, often because they cannot afford to pay court-ordered monetary sanctions. An estimated 730,000 Floridians who have completed their sentences remain disenfranchised, despite a 2018 ballot referendum that promised to restore their voting rights.
• One in 22 African Americans of voting age is disenfranchised, a rate more than triple that of non-African Americans. Among the adult African American population, 4.5% is disenfranchised compared to 1.3% of the adult non-African American population. In 15 states, 5% or more of the African American adult population is banned from voting due to a felony conviction.
• More than one in 10 African American adults is disenfranchised in five states – Arizona, Florida, Kentucky, South Dakota, and Tennessee.
• Although data on ethnicity in correctional populations are unevenly reported and undercounted in some states, a conservative estimate is that at least 495,000 Latino Americans or 1.5% of the voting eligible population are disenfranchised.
• Based on available correctional data that records an individual’s sex, approximately 764,000 women are disenfranchised, comprising about 0.6% of the female voting eligible population and approximately one-fifth of the total disenfranchised population.3 We estimate that approximately 3.2 million men or 2.7% of the male voting eligible population is disenfranchised, consistent with the overrepresentation of men in the criminal legal system.

US Sentencing Commission releases still more updated "Quick Facts" publications

To close out September, the US Sentencing Commission released yet another new set of its terrific "Quick Facts" publications.  Regular readers are now used to my praise for the USSC's production of 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 newest sets of postings by the USSC on the "Quick Facts" page from the start of this week:

• NEW Mandatory Minimum Penalties (September 2024)
• NEW Federally Sentenced Native Americans (September 2024)
• NEW Securities and Investment Fraud (September 2024)
• NEW Sexual Abuse (September 2024)
• NEW Escape (September 2024)
• NEW Sentenced Organizations (September 2024)

US Sentencing Commission releases new report on "Cyber Technology in Federal Crime"

The US Sentencing Commission today released this notable new research report titled "Cyber Technology in Federal Crime."  This latest report is introduced on this USSC webpage, which also sets forth "Key Findings" along with some interesting graphics.  Here is the main text from this USSC page:

There has been little analysis on the individuals sentenced for a federal offense who used cyber technology for illegal purposes. In developing this report, the Commission collected information on individuals sentenced for offenses using cryptocurrency, the dark web, and hacking for fiscal years 2014 through 2021.  This report provides demographic and sentencing information for those individuals who used at least one of three types of cyber technology during their offenses — hacking, cryptocurrency, and the dark web — along with the types of offenses committed using these technologies.  The Commission analyzed this data to draw comparisons with all other federally sentenced individuals between fiscal years 2014 and 2021 who did not use these technologies....

Key Findings

Between 2014 and 2021, 2,590 sentenced individuals used at least one of three types of cyber technology — hacking, cryptocurrency, and the dark web — in connection with a federal offense, and the number increased substantially during the time studied from 2014 to 2021.  However, this number represented less than one percent of the total federal caseload....

Individuals who used cyber technology in their offense were more likely to be White, male, younger, and have completed at least some college than other sentenced individuals.

• Over two-thirds (68.6%) of individuals who used cyber technology in their offense were White, compared to 21.5 percent of other sentenced individuals.
• While 94.0 percent of those who used cyber technology were male, 86.8 percent of other sentenced individuals were male.
• Almost a quarter (22.4%) of individuals who used cyber technology had a college degree, compared to 5.8 percent of other sentenced individuals.

Individuals who used hacking, cryptocurrency, or the dark web in their offense had less criminal history than individuals who did not use cyber technology in the commission of a federal crime.  Less than half of other sentenced individuals were in Criminal History Category (CHC) I, the lowest category.

The most common offenses committed by individuals who used cyber technology in their offense were child pornography (28.9%), fraud (27.5%), drug trafficking (20.6%), and money laundering (8.9%).

US Sentencing Commission releases some more updated "Quick Facts" publications

Regular readers are now used to my praise for the US Sentencing Commission for continuing to release new sets of its terrific "Quick Facts" publications.  But ir remains the case that I cannot praise the USSC enough 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."  IHere are the newest sets of postings by the USSC on the "Quick Facts" page from last week:

Offender Groups

• NEW Federally Sentenced Women (September 2024)

Sex Offenses

• NEW Child Pornography (September 2024)

Other Offenses

• NEW Robbery (September 2024)
• NEW National Defense (September 2024)

"In the wake of Miller and Montgomery: A national view of people sentenced to juvenile life without parole"

The title of this post is the title of this new paper from multiple authors recently published in the Journal of Criminal Justice. Here is its abstract:

Objective

The movement to end mass incarceration has largely concentrated on people serving shorter sentences for non-violent offenses.  There has been less consideration for the 1 in 7 people in prison serving life sentences, overwhelmingly for violent offenses, including those serving juvenile life without parole (JLWOP).  Recent U.S. Supreme Court decisions result in a pressing need for data on second chance considerations for JLWOP.  This study tracks outcomes of the national population of juvenile lifers.

Data/methods

We cross-reference data to identify the JLWOP population at the time of Miller (N = 2904) to build a demographic profile and track resentencing, release, and mortality statuses. Statistics and data visualization are used to establish national and state-level baselines.

Results

Findings reveal more than 2500 individuals have been resentenced and more than 1000 have been released.  There is notable state variation in the number of JLWOP sentences, the extent to which JLWOP is still allowed, sentence review mechanisms, and percentage of juvenile lifers released.

Conclusions/implications

The present study provides an important foundation for subsequent work to examine equity in the implementation of Miller and Montgomery within and across states, and to study reentry of an aging population that has spent critical life stages behind bars.

US Sentencing Commission releases FY 2024 third quarter sentencing data

The US Sentencing Commission last week released on its website its latest quarterly data report, this one labelled "3rd Quarter Release, Preliminary Fiscal Year 2024 Data Through June 30, 2024."  These new data with the latest accounting of federal sentencing trends helps to further define the new normal in federal sentencing patterns.  As I have noted before, and as reflected in Figure 2, the quarters just prior to the COVID pandemic averaged roughly 20,000 federal sentencings per quarter; the "new normal" over the past year is roughly 15,000 and 16,000 total federal cases sentenced each quarter (and Figure 2 shows that declines in immigration sentencings accounts for the decrease in overall cases sentenced).

As I have also noted before, the other big COVID-era trend of historically large numbers of below-guideline variances has persisted for years now (as detailed in Figures 3 and 4). I continue to suspect this trend is mostly a facet of the different caseload and case mixes.  Interestingly, in the most recent two quarters, the official data show a small but notable uptick in the percentage of all federal sentences that are imposed "Within Guideline Range."  But it remains the case that a majority of 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, the modern USSC's data on drug sentencing reflected in Figures 11 and 12 remains fascinating. These figures show, for the last three quarters, that over 46% of all federal drug sentencings involved methamphetamine and the average sentence for all those meth cases is well over eight years in prison.  Also notable is how few marijuana (2.7%) and crack cocaine (4.0%) cases are being sentenced in federal courts.  

As always, there are more big and small stories to mine from the latest USSC data.  But the relative consistency of the system, even with lots of notable recent reforms by the Commission and talk of more, is my consistent take away from these valuable data runs. 

Prison Policy Initiative provides "Mass Incarceration 101: Resources to help students and teachers understand the carceral system"

Prison Policy Initiative have this timely new posting authored by Danielle Squillante with this full title: "Mass Incarceration 101: Resources to help students and teachers understand the carceral system: It’s back to school season, so we’ve curated information and tools for students and teachers to use when researching the carceral system."  The posting serves to highlight a number of PPI's major data reports, and it worth a full read.  Here is how it gets started:

Students and teachers are heading back to the classroom. In addition to math, science, and language arts, many will also focus on the criminal legal system and mass incarceration. Unfortunately for them, the carceral system operates like a black box, making it hard to study what’s happening inside the walls of prisons and jails. Fortunately, we have made it our business to make the data that does exist as accessible and understandable as possible.

To better support the work of students and teachers, we’ve curated a list of publications and tools they can use to better study the carceral system and that can serve as launchpads for further research.

Where to start: The big picture

To start any lesson on mass incarceration, you have to understand the U.S. doesn’t have one criminal legal system; instead, it has thousands of federal, state, local, and tribal systems that incarcerate a combined population of nearly 2 million people.

Our flagship report, Mass Incarceration: The Whole Pie, puts these pieces together to give the “big picture” of mass incarceration by explaining not only the scale of our carceral system but also the policy choices that have driven its expansion.  It provides the most comprehensive picture of how many people are locked up in the U.S., in what types of facilities, and why.  In addition to showing how many people are behind bars on any given day in the U.S., it goes on to bust 10 of the most persistent myths about prisons, jails, crime, and more.

US Sentencing Commission releases more updated "Quick Facts" publications on more economic offenses

The US Sentencing Commission is continuing to release new sets of its "Quick Facts" publications with updates drawing on the USSC's full fiscal year 2023 data. I have flagged these new updated Quick Facts in recent posts  here and here, and the USSC just this week released these additional "Quick Facts"  on additional economic offenses:

• NEW Tax Fraud (August 2024)
• NEW Health Care Fraud (August 2024)
• NEW Government Benefits Fraud (August 2024)
• NEW Credit Card and Other Financial Instrument Fraud (August 2024)

Brennan Center produces short piece "Analyzing the First Step Act’s Impact on Criminal Justice"

I was pleased to see today that the Brennan Center for Justice released this short new "analysis" on the First Step Act titled "Analyzing the First Step Act’s Impact on Criminal Justice."  Though I was hoping that the piece might include some considerable new or detailed "analyzing" of how the First Step Act has impacted justices systems now nearly six years after its passage, this document is really just an overview of the major provisions of the Act along with a review of some basic data on the Act's early implementation from various sources. 

Still, though I was eager to see more, this Brennan Center document provides a clear and effective primer on many key aspects of the First Step Act and on some key implementation data and issues.  In addition, hyperlinks embedded in the report effectively provide ready accesss to a number of major government reports about the First Step Act's implementation.  Though there is a whole lot more that can and should be said about the "First Step Act’s Impact on Criminal Justice," this report still serves as an effective overview resource (especially given what I perceive to be the relative paucity of other writings about the First Step Act by either academics or advocates).  

US Sentencing Commission releases updated "Compassionate Release" data report

I flagged in this recent post the US Sentencing Commission's latest release of new sets of its terrific "Quick Facts" publications with updates drawing on the USSC's full fiscal year 2023 data. But I did not want to forget that the USSC also now has available on this data page its latest "Compassionate Release" data report. Specifically, the USSC describes its "FY 2024 Third Quarterly Report (Published August 15, 2024)" this way:

This report provides an analysis of the compassionate release motions filed with the courts and decided through the third quarter of fiscal year 2024. Table 1 and Figure 1, combine this data with data on compassionate release motions from prior fiscal years to facilitate trend analyses. The data in this report is limited to motions for which the Commission received or obtained court documentation and completed its analysis by August 9, 2024.

Table 1 of this data report reinforces my sense that a rough steady pattern now emerged in recent years for sentence reduction motions in federal courts, with each month a few hundred motions being resolved and a few dozen being granted.

Over at the Sentencing Matters Substack, a few of us have been writing about second-look sentencing more generally.  Here are a couple of the most recent posts in this arena:

"Bryan Stevenson, Second Looks, and Lasting Reverberations"

"Should Second Look Efforts Focus Particularly on Drug Offense Sentences?" 

"Racially Disparate and Disproportionate Punishment of Felony Murder: Evidence from New York"

The title of this post is the title of this new paper authored by Alexandra Harrington and Guyora Binder now available via SSRN. Here is its abstract:

America’s peculiar institution of felony murder liability has long been criticized as cruel and pointless, particularly as applied to defendants who did not kill.  Yet data collection practices in the criminal legal system make felony murder difficult to study empirically.  This article presents recently uncovered evidence of the racially disparate application of felony murder law, as well as increased disparities for those who have been convicted as accomplices.  This study of felony murder arrest and disposition in New York is one of the first to reach beyond dispositions to examine the behavior punished, and to thereby compare patterns in arrest, prosecution, and conviction of accused principals with accomplices not alleged to have killed. 

This study is also one of the first to report the surprising scale of liability under felony murder law for individuals who did not kill — half of all people convicted of felony murder in the years measured — as well as for people who appear to have caused death inadvertently.  It finds substantial racial disparities in arrests and convictions for felony murder compared to other forms of second-degree murder.  These disparities are starker for teens, who make up at least a quarter of the dataset.  Finally, it uncovers a shocking phenomenon: hundreds of arrests — mostly concentrated in New York City — of almost exclusively Black and Hispanic people for the fictitious crime of attempted felony murder.  In New York, it seems, the worst of felony murder is reserved for defendants of color.

US Sentencing Commission continues releasing updated "Quick Facts" publications

I am pleased to see that the US Sentencing Commission is continuing to release new sets of its terrific "Quick Facts" publications with updates drawing on the USSC's full fiscal year 2023 data.  Long-time readers know I cannot praise the USSC enough 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."  I flagged an early set of updated Quick Facts here a few months ago, and here are the newest sets of postings by the USSC on the "Quick Facts" page from June July and August:

Offender Groups

• NEW Non-U.S. Citizens (July 2024)

Drugs

• NEW Powder Cocaine Trafficking (June 2024)
• NEW Crack Cocaine Trafficking (June 2024)
• NEW Marijuana Trafficking (June 2024)
• NEW Oxycodone Trafficking (June 2024)
• NEW Heroin Trafficking (July 2024)

Firearm Offenses

• NEW Section 924(c) (June 2024)
• NEW Section 922(g) (June 2024)

Immigration Offenses

• NEW Illegal Reentry (July 2024)
• NEW Alien Smuggling (July 2024)

Economic Offenses

• NEW Theft, Property Destruction, and Fraud (August 2024)
• NEW Aggravated Identity Theft (August 2024)
• NEW Bribery (August 2024)
• NEW Counterfeiting (August 2024)
• NEW Money Laundering (August 2024)

"Can Prosecutorial Declination End Overincarceration?"

The title of this post is the title of this recent article available via SSRN authored by Shima Baradaran Baughman. Here is its abstract:

We know very little about why prosecutors charge a given case, how frequently they charge, and why they decline to charge cases.  Scholars have discussed this issue despite the acknowledged “black box” around this question.  Some have recently argued that progressive prosecution has influenced prosecutors to decline more cases.  Others discuss rates of individual state and federal declination — showing high rates particularly for federal districts.  One scholar has suggested that private prosecution might be the only viable alternative to public prosecution.  Overall crime has certainly gone down in the U.S. and arrests have also dropped.  But prosecutors have not necessarily reduced charging in commensurate ways.  Given what we know about mass incarceration and prosecutors’ inordinate ability to exercise discretion in the criminal process, are prosecutors inclined to decline cases?  What might factor in their decision?

This Article focuses on the largest national field experiment on prosecutors to provide some insight to how American prosecutors might analyze and decide to charge a given case.  In some respects, the data are insightful because they take away any resource constraints or evidentiary limitations in charging a case.  The data show that prosecutors, when given the opportunity, would almost always charge a case — even when many factors indicate that they should do otherwise.  What this national data tells us about prosecutorial charging and declination may demonstrate that we have not made as much “progress” in terms of prosecution as we might have hoped. Declining to charge might never be a prosecutorial tool to end mass incarceration.

The Sentencing Project releases updated report on “Youth Justice By The Numbers”

The Sentencing Project released today this new version of a report titled, “Youth Justice By The Numbers.”  The first two sentences of this ten-page report spotlights its main themes: "Between 2000-2022, there was a 75% decline in youth incarceration. However, racial and ethnic disparities in youth incarceration and sentencing persist amidst overall decrease in youth offending." Here is how this report gets started with its "introduction":

Youth arrests and incarceration increased in the closing decades of the 20th century but have fallen sharply since.  Public opinion often lags behind these realities, wrongly assuming both that crime is perpetually increasing and that youth offending is routinely violent.  In fact, youth offending is predominantly non-violent, and the 21st century has seen significant declines in youth arrests and incarceration.  Despite positive movement on important indicators, far too many youth — disproportionately youth of color — are incarcerated.  Between 2000 and 2022, the number of youth held in juvenile justice facilities fell from 108,800 to 27,600 — a 75% decline.

New press analysis reports juveniles sentenced as adults in Florida get longer sentences than adults

The Miami Herald has this notable and lengthy new article about juvenile sentencing headlined "‘Very disturbing’: Florida teens get longer prison sentences than adults."  Here are some of the details:

Florida is one of 13 states that give prosecutors unfettered power to try children as adults without getting sign-off from a judge.  And when judges determine the penalties for those kids, they give them higher sentences on average for felony crimes than older, adult offenders, according to a Miami Herald investigation....

Florida judges have the option to give teenage offenders “juvenile sanctions,” which send them to a juvenile facility rather than prison, or classify them as “youthful offenders,” resulting in either probation or being confined at a camp with other convicted young adults for up to six years.... Only one in 10 of the more than 20,000 children tried as adults in Florida were given juvenile sanctions and less than 5% received a “youthful offender” designation, the Herald found in an analysis of the last 15 years of state court system sentencing data from 2008 to 2022....

Children tried as adults were sentenced to a little more than three years in prison on average for third-degree felonies — around 50% longer than the average sentence given to adults for the same class of offense. The vast majority of all felony charges are third-degree offenses, which are the lowest class of felony crimes and include burglary, some types of assault, drug possession and certain DUI offenses. Children and adults had similar average sentences for more serious offenses that fall under first and second-degree felonies.

Overall, a child tried as an adult was sentenced to a little more than five years for a felony charge while an adult received around three-and-a-half years. These trends held even after the Herald adjusted for the most extreme sentences that could skew the figures.

Though it is hard to assess the Herald analysis, I am not sure these data should be all that shocking if Florida prosecutors generally tend to bring only the most aggravated juvenile offenders into adult courts for adult sentencing.  If only the very worst of juvenile offenders in Florida are sentenced like adults in adult courts, it should not be too surprising that their average sentences are longer than the full array of adult offenders, many of whom, comparatively speaking, may be less serious offenders.  (At the risk of providing a confusing (and imperfect) sports analogy, this would be like noting that the top 50 minor league home run hitters, on average, hit more home runs than all average major league hitters.)

"Still Cruel and Unusual: Extreme Sentences for Youth and Emerging Adults"

The title of this post is the title of this new Sentencing Project report authored by Ashley Nellis and Devyn Brown. The short report starts this way:

A wave of reforms since 2010 has changed the trajectory of punishment for young people by substantially limiting the use of juvenile life without parole (JLWOP) sentences. At the sentence’s height of prominence in 2012, more than 2,900 people were serving JLWOP, which provided no avenue for review or release.  Since reforms began, most sentence recipients have at least been afforded a meaningful opportunity for a parole or sentence review. More than 1,000 have come home. 

This progress is remarkable, yet thousands more who have been sentenced to similarly extreme punishments as youth have not been awarded the same opportunity.  Our analysis shows that in 2020, prisons held over 8,600 people sentenced for crimes committed when they were under 18 who were serving either life with the possibility of parole (LWP) or “virtual” life sentences of 50 years or longer.  This brief argues for extending the sentencing relief available in JLWOP cases to those serving other forms of life imprisonment for crimes committed in their youth.

In addition, The Sentencing Project has estimated that nearly two in five people sentenced to life without parole (LWOP) were 25 or younger at the time of their crime.  These emerging adults, too, deserve a meaningful opportunity for a second look because their developmental similarities with younger people reduces their culpability in criminal conduct. The evidence provided in this brief supports bold reforms for youth and emerging adults sentenced to extreme punishments.

"Crime rates are improving. Too bad crime data is not."

The title of this post is the headline of this new Washington Post editorial.  Here are excerpts:

There’s encouraging news about crime rates in the United States. After a spike in both violent crime and property offenses after the pandemic-and-protest year of 2020, statistics show that crime is reverting to 2019 levels. That’s according to a newly released midyear report by the Council on Criminal Justice, a nonpartisan think tank, based on monthly offense rates for 12 violent, property and drug crimes in 39 cities that have consistently reported such data over the past six years....

Even with the recent improvements, it is undeniable that crime, including the worst crime — homicide — spiked nationally in recent years. The trauma and insecurity that this caused lingers. In seven U.S. cities that provide data on carjacking, that offense remains 68 percent more frequent than it was in the first half of 2019, according to CCJ’s report. Shoplifting and car theft also remain at elevated levels.

Given the emotions that inevitably swirl around this subject, public opinion will probably never precisely reflect statistical reality. But at least the government could publish a sufficiently precise and up-to-date picture of statistical reality. Unfortunately, it does not, as another recent CCJ report explained. The lead federal source for national data, the FBI, issues annual reports each October based on numbers gathered up to 18 months previously and reported — voluntarily and with varying degrees of accuracy — to the bureau by some 18,000 police agencies....

In an age of social media and viral video, the government should be able to update the public on crime at least as often as, say, the Bureau of Labor Statistics reports on inflation or unemployment — that is, monthly.  Even reports based on a representative sample of jurisdictions would be an improvement over the status quo.

And yet the FBI’s new incident-reporting platform, intended to improve data quality, has made it more time-consuming and complex for police departments to send information to Washington. It has proven especially difficult for small, local agencies, nearly half of which have 10 or fewer officers on staff....

The Bureau of Justice Statistics gets less money from Congress than almost any other federal statistical agency. Last fiscal year, the bureau received $35 million, far less than the $78 million President Biden had requested and less than the $42 million it received the year prior.  The Bureau of Labor Statistics, by contrast, received $698 million.  Private groups such as CCJ do important work with their limited resources, as its latest report on crime trends, despite unavoidable data limitations, shows.  Keeping citizens fully informed about crime is a public responsibility, however. It deserves public resources to match.

The Sentencing Project releases updated fact sheet on "Incarcerated Women and Girls"

The Sentencing Project today released this updated six-page fact sheet titled "Incarcerated Women and Girls." The document has lots of data and graphics providing details of how and why "female incarcerated population stands almost seven times higher than in 1980." I recommend the full document, and here is some of its text:

Between 1980 and 2022, the number of incarcerated women increased by more than 585%, rising from a total of 26,326 in 1980 to 180,684 in 2022. While 2020 saw a substantial downsizing due to the COVID-19 pandemic, this trend reversed with an 18% increase in 2022....

The rate at which women are incarcerated varies greatly from state to state. At the national level, including both state and federal imprisonment, 49 out of every 100,000 women were in prison in 2022. The state with the highest rate of female imprisonment is Idaho (132) and the state with the lowest incarceration rate of women is Massachusetts (7).

Women in state prisons are more likely than men to be incarcerated for a drug or property offense. Twenty-five percent of women in prison have been convicted of a drug offense, compared to 12% of men in prison; 19% of incarcerated women have been convicted of a property crime, compared to 13% among incarcerated men.

The proportion of imprisoned women convicted of a drug offense has increased from 12% in 1986 to 25% in 2021.

Oklahoma executes man 40 years(!?) after he raped and killed his young stepdaughter

As reported in this AP piece, "Oklahoma executed a man Thursday who was convicted of kidnapping, raping and killing his 7-year-old former stepdaughter in 1984.  Richard Rojem, 66, received a three-drug lethal injection at the Oklahoma State Penitentiary in McAlester and was declared dead at 10:16 a.m., prison officials said."    Here is more:

Rojem, who had been in prison since 1985, was the longest-serving inmate on Oklahoma’s death row....

Rojem was previously convicted of raping two teenage girls in Michigan, and prosecutors said he was angry at Layla Cummings because she reported that Rojem sexually abused her, leading to his divorce from the girl’s mother and his return to prison for violating his parole.

Rojem’s attorneys argued at a clemency hearing this month that DNA evidence taken from the girl’s fingernails did not link him to the crime.... Rojem, who testified at the hearing via a video link from prison, said he wasn’t responsible for the girl’s death. The panel voted 5-0 not to recommend to the governor that Rojem’s life be spared....

Prosecutors said there was plenty of evidence to convict Rojem, including a fingerprint that was discovered outside the girl’s apartment on a cup from a bar Rojem left just before the girl was kidnapped. A condom wrapper found near the girl’s body also was linked to a used condom found in Rojem’s bedroom, prosecutors said.

A Washita County jury convicted Rojem in 1985 after just 45 minutes of deliberations. His previous death sentences were twice overturned by appellate courts because of trial errors. A Custer County jury ultimately handed him his third death sentence in 2007.

Oklahoma, which has executed more inmates per capita than any other state in the nation since the death penalty was reinstated in 1976, has now carried out 13 executions since resuming lethal injections in October 2021 following a nearly six-year hiatus resulting from problems with executions in 2014 and 2015.

With no more executions scheduled in this US for a couple more weeks, the total number of executions nationwide for the first half of 2024 will be nine.

US Sentencing Commission releases latest "compassionate release" data through March 2024

The US Sentencing Commission today updates some of its data on sentence reduction motions on this webpage, particularly though this new Compassionate Release Data Report running through the second quarter of USSC Fiscal Year 2024 (meaning through the end of March 2024).   Notably, the latest data run includes information for nearly six months after the Commission's new "sentence reduction" guideline became law, and nearly a year after the Commission submitted this guideline to Congress.

As I have noted before, the long-term data going back to the height of the COVID pandemic period reveals, unsurprisingly, that we now see many fewer sentence reduction motions filed or granted than in years past.  Though there are month-to-month variations, it would be roughly accurate to say recent months see, on average, a few dozen compassionate release motions granted and a couple hundred  motions denied nationwide.  And the number of motions resolved and the grant rates from various districts remain quite different within and among circuits.

There are all sorts of other interesting data points in this new report relating to both the crimes and backgrounds of defendants bringing these motions and getting sentence reductions.  Especially because there are so many elements to sentence reduction motions and so much discretion in the hands of district judges when considering these motions, I continue to find these data stories fascinating, and I am hopeful researchers (and the USSC) will keep exploring how this part of the First Step Act continue to function.

US Sentencing Commission releases big report on "Methamphetamine Trafficking Offenses in the Federal Criminal Justice System"

Via email, I received news of this big new report from the US Sentencing Commission titled "Methamphetamine Trafficking Offenses in the Federal Criminal Justice System."  This 66-page report provides lots of important facts and figure about the drug offense that is now the basis for the most and most severe federal drug sentences in recent years.  This USSC webpage has an overview and key findings from the report and this USSC news release provide a helpful summary:

A new U.S. Sentencing Commission study found substantial increases in both the prevalence of federal methamphetamine trafficking sentences, and the purity levels of methamphetamine trafficked in the United States.

Over the past 20 years, the number of individuals sentenced federally for methamphetamine trafficking has risen by 168 percent, with methamphetamine now accounting for nearly half (49%) of all federal drug trafficking cases.

The study also revealed that the methamphetamine tested in fiscal year 2022 was on average over 90% pure with a median purity of 98%.  Furthermore, the methamphetamine tested was uniformly highly pure regardless of whether it was sentenced as methamphetamine mixture (91% pure on average), methamphetamine actual (93%) or Ice (98%).  By comparison, in 2000, the Drug Enforcement Administration reported that methamphetamine purity ranged from 10% to 80% depending on location.

Methamphetamine is one of only five controlled substances where purity affects federal statutory and guideline penalties, resulting in higher penalties when purity levels are confirmed by laboratory testing.  By federal statute, it takes ten times as much mixture compared to actual methamphetamine to trigger mandatory minimum penalties.

Because methamphetamine penalties are based in part on purity, penalty exposure and sentencing outcomes are impacted by confirmed purity levels.  The Commission’s study found that testing practices varied across the nation and that testing rates across judicial circuits were inconsistent — ranging from under 60% to over 80% of the time.  Notably, methamphetamine seized in southwest border districts was more likely to undergo laboratory testing (85%) than in non-border districts (70%).

Methamphetamine trafficking sentences averaged 91 months in fiscal year 2022, the longest among the major federal drug trafficking offenses, including fentanyl (65 months) and heroin (66 months). In addition, methamphetamine trafficking offenses carried mandatory minimum penalties more often (74%) than all other drug trafficking offenses (57%).

Notable Washington Post "Abused by the badge" investigation includes notable data on sentencing outcomes

The Washington Post today released a series of remarkable pieces as part of an investigative series it calls "Abused by the badge."  The subheadline of this main piece summarizes the main themes: "A Washington Post investigation found hundreds of law enforcement officers in the United States have sexually exploited kids. Many avoid prison time."  Here are additional links to the newest pieces in the series:

• "An officer sexually abused a teen in his police car. How will he be punished?"
• "How The Post investigated police officers accused of sexually abusing kids"
• "Read the responses from convicted police officers and their agencies"

This Reason piece about the Post's findings helpfully summarizes some of the key sentencing stories:

The investigation revealed a staggering lack of accountability for officers who sexually abuse minors — finding not only that convicted officers often received paltry sentences, but that police departments sometimes rehired officers with child sex abuse convictions.

The Post's analysis looked at thousands of court filings, as well as The Henry A. Wallace Police Crime Database, the county's most comprehensive database of police arrests.  The authors found that, between 2005 and 2022, around 17,700 police officers were charged with crimes — and 1 in 10 of those were charged with a crime involving the sexual abuse of minors.

The crimes officers were charged with varied, though most charges were for a few specific offenses. According to the Post's analysis, 39 percent of officers charged with child sexual abuse crimes were charged with rape.  Twenty percent were charged with crimes related to child sexual abuse material (another term for child pornography) and 19 percent were charged with forcible fondling.

Eighty-three percent of charged officers were convicted.  However, only 61 percent of convicted officers received prison time.  Fifteen percent received local jail sentences, and a striking 24 percent received sentences as light as probation, fines, and community service.  But even those imprisoned received relatively light sentences. Half were sentenced to less than five years in jail.

Why did so many officers seem to get off easy for heinous sex crimes?  According to the Post, it comes down to how prosecutors and judges treat police officers. "Prosecutors have broad discretion in the types of charges they bring, the plea bargains they offer and the cases they are willing to take to trial," the Post's analysis reads. "Judges play a critical role at sentencing hearings in determining what punishment officers deserve."

Because there is no national data about sentencing outcomes in cases involving other types of persons sexually abusing minors, it is impossible to compare the outcomes detailed by the Post for officers to other sets of offenders.  But the Post's suggestion that these officer offenders are being treated relatively leniently seems sound.  And many might reasonably argue that secual abuse of a minor committed my an officer ought to lead to even harsher punishment than would be given to other offenders, especially if the officer used his position to facilitate the crime.

BJS releases small accounting with "Preliminary Data Release - Jails (2023)"

THe Bureau of Justice Statistics sent me a couple emails today making sure I saw it published online here its latest data on jail populations in the US.  Here is the text that starts the report:

The Bureau of Justice Statistics provides key jail statistics prior to release of the annual jails report.  The statistics below include the number of persons held in local jails, by inmate demographics and conviction status; the number of admissions to jail; and jail incarceration rates, from 2013 to 2023.

Statistics from 2023, the latest data year, are preliminary and may be updated once BJS publishes the final data in Jail Inmates in 2023 – Statistical Tables, which is scheduled for release in late 2024.  

Key findings

• At midyear 2023, local jails held 664,200 persons in custody, similar to the year before (663,100).
• Jails reported 7.6 million admissions from July 1, 2022 to June 30, 2023.  While this represents a 4% increase over the 7.3 million admissions the year before, annual admissions were 35% lower than 10 years ago (11.7 million).
• Local jails held 95,100 females at midyear 2023, accounting for 14% of the confined population.
• At midyear 2023, 70% of the jail population (467,600) was unconvicted and awaiting court action on a current charge or being held in jail for other reasons.  The remaining 30% (196,600) was convicted and either serving a sentence or awaiting sentencing on a conviction.

US Sentencing Commission starts releasing latest "Quick Facts" publications

I noticed that the US Sentencing Commission has started releasing a new set of its terrific "Quick Facts" publications with updates drawing on the USSC's full fiscal year 2023 data.  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 newesr postings by the USSC on the "Quick Facts" page:

Offender Groups

• NEW Individuals in the Federal Bureau of Prisons (May 2024)
• NEW Career Offenders (May 2024)

Drugs

• NEW Drug Trafficking (May 2024)
• NEW Methamphetamine Trafficking (May 2024)
• NEW Fentanyl Trafficking (May 2024)
• NEW Fentanyl Analogue Trafficking (May 2024)

There are any number of interesting factual nuggets in these documents that are fascinating, but I continue to be struck by how much of the federal caseload (and federal prison population) is consumed by drug cases and especially methamphetamine and various opioid. Crack cocaine and marijuana cases, which have long garnered so much attention, are now just a tiny piece of an otherwise still large federal drug war reality.

BJS releases two big new (and dated) reports on 2022 correctional populations and probation/parole populations

Via email, I learned that the Justcie Department's Bureau of Justice Statistics today released these two big new data reports: "Correctional Populations in the United States, 2022 – Statistical Tables" and "Probation and Parole in the United States, 2022." Here is how BJS describes these reports:

[The correctional populations] report summarizes data on populations supervised by probation or parole agencies and those incarcerated in state or federal prisons or in the custody of local jails from 2012 to 2022. It also includes tables on sex and race or ethnicity of persons supervised by correctional systems. BJS has published statistics on correctional populations since 1985....

[The probation and parole] report provides data on adult U.S. residents under correctional supervision in the community. It includes characteristics of this population, such as sex, race or ethnicity, and most serious offense. The report details how people move onto and off community supervision, such as completing their term of supervision, being incarcerated, absconding, or other unsatisfactory outcomes while in the community. It is the 31st in a series that began in 1981.

Though it is alwaus a bit disappointing that these great data reports are already nearly 18 months behind present day realities, the BJS always deserves thanks for the great, rigorous job it does collecting and publishing these complicated data.

"Regressive White-Collar Crime"

The title of this post is the title of this new article authored by Stephanie Holmes Didwania available via SSRN. Here is its abstract:

Fraud is one of the most prosecuted crimes in the United States, yet scholarly and journalistic discourse about fraud and other financial crimes tends to focus on the absence of so-called “white-collar” prosecutions against wealthy executives.  This Article complicates that familiar narrative. It contains the first nationwide account of how the United States actually prosecutes financial crime.  It shows — contrary to dominant academic and public discourse — that the government prosecutes an enormous number of people for financial crimes and that these prosecutions disproportionately involve the least advantaged U.S. residents accused of low-level offenses.  This empirical account directly contradicts the aspiration advanced by the FBI and Department of Justice that federal prosecution ought to be reserved for only the most egregious and sophisticated financial crimes.  This Articles argues, in other words, that the term “white-collar crime” is a misnomer.

To build this empirical foundation, the Article uses comprehensive data of the roughly two million federal criminal cases prosecuted over the last three decades matched to county-level population data from the U.S. Census.  It demonstrates the history, geography, and inequality that characterize federal financial crime cases, which include myriad crimes such as identity theft, mail and wire fraud, public benefits fraud, and tax fraud, to name just a few.  It shows that financial crime defendants are disproportionately low-income and Black, and that this overrepresentation is not only a nationwide pattern, but also a pattern in nearly every federal district in the United States.  What’s more, the financial crimes prosecuted against these overrepresented defendants are on average the least serious.  This Article ends by exploring how formal law and policy, structural incentives, and individual biases could easily create a prosecutorial regime for financial crime that reinforces inequality based on race, gender, and wealth.

Notable (and notably unclear) accounting of possible impact of retroactive application of new guideline amendments

The US Sentencing Commission has sent to Congress a handful of new guideline amendments that reduce the guideline range for some individuals (details here).  That means the USSC is statutorily required to decide whether these amendments should be applied retroactively to persons currently incarcerated.  Before a vote on retroactivity, the USSC staff typically prepares a retroactivity impact analysis to aid the USSC's deliberation over retroactivity, and this past Friday the USSC made public this 21-page document titled "Analysis of the Impact of Certain 2024 Guideline Amendments if Made Retroactive" (hereinafter "retroactivity memo").

The highest-profile amendment to be considered for retroactivity is on acquitted conduct, which redefines relevant conduct to exclude conduct for which the defendant was criminally charged and acquitted in federal court.  The retroactivity memo notes that the USSC staff estimated "that 1,971 persons currently incarcerated in the BOP were acquitted of one or more of the charges against them."  (Notably, that's not much more than 1% of the current federal prison population.)  But, as the retroactivity memo further explains, USSC research staff were "unable to determine whether and to what extent the courts may have relied upon any of the offense conduct related to the charge or charges for which the individual was acquitted in determining the guideline range; therefore, staff cannot estimate what portion of approximately 1,971 persons might benefit from retroactive application of the amendment."

I suspect only a limited percentage of persons who were acquitted of some charge could show that their guideline ranges were enhanced based on acquitted conduct.  But this reality, in my view, should make the Commission all that much more willing to have its new acquitted conduct guideline applied retroactively.  Though acquitted conduct guideline enhancements are relatively rare, those now serving prison time based on acquitted conduct ought to have a chance to argue for a reduced sentence.

Interesting, the retroactivity memo also details at length that all the other guideline amendments that might be made retroactive this year also have all sorts of data uncertainty regarding the reach of retroactivity.  Here is a cursory accounting drawn from the retroactivity memo: (a) one amendment restricting a 4-level enhancement applicable when a firearm's serial number of a firearm has been “altered or obliterated” could apply to as many as 1,452 current federal prisoners, but the amendment functions so that USSC "staff cannot determine in which of the 1,452 cases" might be impacted by the amendment"; (b) another amendment concerning the grouping rules for firearm offenses could impact "102 cases that met the criteria" of the new guideline, but the fact-specific nature of the grouping rules [meant] staff cannot determine with precision the cases in which the grouping rules might have been applied in a manner inconsistent with the amendment"; (c) another amendment to restrict how the drug guidelines should be calculated could impact "538 of those persons [who] were sentenced using a Base Offense Level" a certain way, but "staff cannot determine in which of the 538 cases the court may have applied a BOL" this way.

Long story short, it is clear that not very many current federal prisoners could possibly be impacted by making new guidelines retroactive (likely less than 2% of the current BOP population), but it is actually quite unclear if any significant number of current prisoners would benefit.  Whether and how these small numbers and the data uncertainty might impact the Commission's retroactivity decision remains to be seen.

New US Sentencing Commission data on retroactive application of criminal history amendments

Last year, US Sentencing Commission voted for (delayed) retroactive application of its Guideline amendments relating to criminal history.  There were two major parts to these amendment that reduced the sentencing range for certain defendants with "status" points (Part A) and for other defendants who would now be deemed "zero-point" offenders (Part B).   And last week, the Commission release some new data on how retroactivity is playing out in district courts.  Here are links to the USSC's data reports:

NEW Retroactivity Data on Part A

NEW Retroactivity Data on Part B

There are lots of interesting little stories in these data runs, but I figured I might  here highlight the top-line numbers. Specifically, for the Part A "status point" amendment, a total of 2,988 defendants have received sentence reductions averaging 10 months.  For the Part B "zero point" amendment, a total of 2,143 defendants have receive sentence reductions averaging 13 months.

Adding this up, we get at total of 57,738 months of reduced federal prison time (which is a little over 4800 years of imprisonment for those not great at dividing by 12).  Given that the average annual cost of federal incarceration is over $42,000, we might reasonably calculate a savings of over $200 million to US taxpayers resulting from the Commission's decision to make its new criminal history guidelines retoractive.

I presume future retroactivity data runs will report in some more defendants getting reductions under the new guidelines, and I also expect other data will also show a significant number of newly sentenced defendants also benefiting from these new criminal history guidelines.  And especially since there were built on the USSC's copious revidivism data, I am hopeful that there reduction do not come at any real public safety costs. 

US Sentencing Commission's new compassionate release data suggest (small) uptick in sentence reduction grants to close 2023

The US Sentencing Commission yesterday released this new compassionate release data report, which includes data on "the compassionate release motions filed with the courts and decided during the first quarter of fiscal year 2024."  (For the USSC, the first quarter of FY 2024 is actually the last three months of 2023.)   I noticed some interesting data points in this report comparing the sentence reduction grants and grant rates of the last three months of 2023 to prior months in 2023 and even earlier years.

Specifically, the months of October and December 2023 saw the highest grant rates for these motions (22.3% and 23% respectively) than for any month since the heart of the COVID pandemic in summer 2020.  Indeed, as Table 1 in the new USSC data shows, the only other month with a greater than 20% grant rate for these motions since August 2020 was in December 2022.  In addition, the total number of sentence reduction grants in Q1 of FY 2024 was also up as compared to recent prior quarters: there were 119 total grants in Q1 of 2024 compared to 81 in Q4 and 111 in Q3 and 114 in Q2 of FY 2023.

What explains the uptick in grants of compassionate release motions in Q1 of FY 2024?  I have two working hypotheses, one general and one 2023 specific: (1) maybe judges are slightly more likely in general to grant these sentence reductions toward the end of the year during the holiday season; and/or (2) maybe judges were influenced a bit by the new US Sentencing Commission policy statement governing compassionate release, § 1B1.13, which became formally effective on November 1, 2023.

Also, as I have noted before in this space, some other notable data points here come from the variations in grant rates from various circuits and districts.  Here is one example in this latest data: in the Second Circuit in this quarter, nine of 12 total resolved sentence reduction motions were granted; in the Third Circuitthis quarter only one of 23 motions were granted.

Critically, my eyeball assessment of these latest data (which reflect small numbers and lots of potential confounding factors) may just be an effort to encourage more systematic analysis of how federal district judges are continuing to use their sentence reduction authority.  Especially with COVID-based reasons likely no longer driving a large number of requests or grants for compassionate release, I hope we start to learn more about what facts and factors are providing most consequential in this form of federal judicial (re)sentencing decision-making.

"A Randomization-based Analysis of the Effects of Electoral Pressure on Judges' Sentencing Decisions"

The title of this post is the title of this new paper authored by Benjamin Lu and available via SSRN. Here is its abstract:

Until recently, studies have consistently found that judges sentence more harshly under electoral pressure.  We add to growing evidence complicating that account.  We analyze an open dataset of felony cases prosecuted in Cook County, the second-most populous county in the United States, between 2011 and 2018 and an original dataset of county judges’ electoral histories.  Unlike previous work in this area, we leverage the fact that some cases in the county are randomly assigned to judges to conduct explicitly causal analyses without conditional ignorability or functional form assumptions. We do not find strong evidence that judges in the county sentence more harshly in response to electoral pressure.

Prison Policy Initiative releases new briefing with new data and visuals on modern jail growth

Emily Widra of the Prison Policy Initiative has authored tbis new briefing titled "New data and visualizations spotlight states’ reliance on excessive jailing."  The subtitle provides context: "We've updated the data tables and graphics from our 2017 report to show just how little has changed in our nation's overuse of jails: too many people are locked up in jails, most detained pretrial and many of them are not even under local jurisdiction."   Here is how the report starts (with links from the original, but footnotes omitted):

One out of every three people behind bars is being held in a local jail, yet jails get almost none of the attention that prisons do. In 2017, we published an in-depth analysis of local jail populations in each state: Era of Mass Expansion: Why State Officials Should Fight Jail Growth. We paid particular attention to the various drivers of jail incarceration — including pretrial practices and holding people in local jails for state and federal authorities — and we explained how jails impact our entire criminal legal system and millions of lives every year. In the years since that publication, many states have passed reforms aimed at reducing jail populations, but we still see the same trends playing out: too many people are confined in local jails, and the reasons for their confinement do not justify the overwhelming costs of our nation’s reliance on excessive jailing.

People cycle through local jails more than 7 million times each year and they are generally held there for brief, but life-altering, periods of time. Most are released in a few hours or days after their arrest, but others are held for months or years, often because they are too poor to make bail. Fewer than one-third of the 663,100 people in jails on a given day have been convicted and are likely serving short sentences of less than a year, most often for misdemeanors.  Jail policy is therefore in large part about how people who are legally innocent are treated, and how policymakers think our criminal legal system should respond to low-level offenses.

"State Sentencing Reforms Had Little Impact on Racial Disparities in Imprisonment, Analysis Finds"

The title of this post is the the title of this new press release from the Council on Criminal Justice (CCJ) discussing the latest findings of research it has been conducting looking at incarceration disparities.  Here is part of the press release, with lnks from the original providing access to the underlying research:

The Black-White disparity in imprisonment has narrowed substantially over the past 20 years but very little of the progress can be attributed to state sentencing reforms, according to a series of reports released today by the Council on Criminal Justice (CCJ).

Following on previous analyses that documented a 40% drop in the Black-White imprisonment disparity between 2000 and 2020, researchers at CCJ, Georgia State University, and the Crime and Justice Institute examined more than 700 statutes adopted in 12 states between 2010 and 2020, seeking to understand how sentencing reforms might have influenced the reduction.  Laws included for study related to violent, property, and drug crimes, as well as parole release and technical violation practices.  The study states (Arizona, California, Colorado, Florida, Georgia, Illinois, New York, North Dakota, Pennsylvania, South Carolina, Texas, and Utah) varied by region, demographic composition, sentencing structure, and the political party in power.

With minor exceptions, the analysis found that the sentencing reforms had negligible impacts on reducing racial disparities, and instead largely codified changes to enforcement, policing, charging, and sentencing practices that had occurred before the laws were enacted. In addition, many sentencing law changes that took effect during the study period addressed fairly infrequent crimes and therefore had a minimal effect on disparity. 

The findings suggest that factors beyond sentencing laws were mostly responsible for the Black-White imprisonment disparity declining from 8.2-to-1 in 2000 to 4.9-to-1 in 2020. Though the study did not statistically assess alternative explanations, the authors offered several other possible reasons for the shrinking disparity, including changes in policing practices, drug use (from cocaine to opioids), how drugs are sold (from open-air markets to the use of GPS-equipped smartphones), and the types of crimes people commit (from burglary to cybercrime, for example)....

The 12-state analysis is part of a sweeping package on racial disparities released by CCJ’s Pushing Toward Parity project. It includes an in-depth look at the legislative changes in each of the 12 study states as well as two reports examining disparities in imprisonment through other lenses.

One analysis examined state imprisonment disparities between Hispanic and non-Hispanic White people.  It found that disparity in imprisonment rates declined during the first two decades of the century, but that the precise size of the drop is unclear because of a conflict between data sources. In 2020, data collected from state corrections departments showed a Hispanic-White disparity ratio of 1.5-to-1; data from a federal prison survey, however, produced a ratio that was 2.7-to-1, or 80% larger. 

The gap in disparity ratios derived from each source has increased over time.  In 2000, the two disparity ratios were roughly equivalent, but by 2020 the federal data disparity ratio was 80% larger.  The measurement gap stems from how race and ethnicity are recorded and classified in each source.  The choice of measurement method makes a large difference in the projected achievement of parity: if current trends continue, the Hispanic-White disparity measure drawn from state data would reach parity by about 2026, while the measure from federal data would reach parity about 30 years later.

Another analysis focused on disparities in female prison populations. It found that state imprisonment disparity between Black and White women fell by 71% between 2000 and 2020, decreasing from 6.3-to-1 to 1.8-to-1 and exceeding the drop for men.  The decline was driven by a 56% decline in the imprisonment rate for Black women and a 57% increase for White women.  Hispanic-White female imprisonment rate disparity also fell (by 56%) over the two-decade period, data from state corrections departments showed; it has been at or below parity since 2010 and reached 0.7-to-1 in 2020, meaning that White women were more likely to be imprisoned than Hispanic women.

Female imprisonment disparity fell across violent, property, and drug offense categories, with the largest drop recorded for drug crimes.  From 2000 to 2020, Black-White drug offense imprisonment disparity among women dropped from 8 to 0.6, reaching parity in 2016.  Hispanic-White drug offense imprisonment disparity fell from 2.4 in 2000 to 0.5 in 2020. Changes in the demographic composition of prison admissions drove the trends.  From 2000 to 2019, admissions decreased 47% for Black females, increased 15% for Hispanic females, and rose 138% for White females. 

Lots of notable new items on the US Sentencing Commission's website including geographic FY 2023 sentencing data

Though we are still a week away from hearing from the US Sentencing Commission about possible new amendments to the US Sentencing Guidelines, I noted that the Commission has updated its website with a bunch of new items that seemed worth flagging.  These are drawn from the new items scroll from the USSC website homepage:

TRAINING SESSIONS ARCHIVE (April 8, 2024)

You can now explore an archive of the Commission's recorded training sessions. Use the filters within the archive to find the training session that meets your specific needs. Learn More

PROBLEM-SOLVING COURTS PODCAST MINISERIES (April 9, 2024)

In this podcast miniseries, Commission staff chat with the federal judges who lead the problem-solving court programs available around the country. Parts One through Seven are out now!  Listen Here

FY23 GEOGRAPHIC SENTENCING DATA (April 8, 2024)

These data reports compare fiscal year 2023 sentencing statistics for each federal circuit, district, and state to the nation as a whole. Learn More

BASICS OF CRIMINAL HISTORY (April 8, 2024)

This updated eLearning module uses real-world scenarios to illustrate the basics of the criminal history rules as amended in 2023. Learn More

I find all the USSC's materials and content interesting, but my data nerdiness really gets hit by the data reports page with fiscal year 2023 sentencing statistics for each federal circuit, district, and state.  That page includes a US map that allows you to see that the border district of Maine had only 116 federal sentencings in FY 2023, whereas the border district of the Western District of Texas had 7,539 federal sentencings in FY 2023.  And that the District Utah had more federal sentencings in FY 2023 sentencings (761) than did New Jersey (723), even though New Jersey has nearly three times the overall population as Utah.  

Intriguing new accounting of recent crime trends and related data

Though I cannot find any detailed information about the Coalition for Law, Order and Safety, this Fox News article alerted me to this new report from the group titled "Assessing America’s Crime Crisis: Trends, Causes, And Consequences."  The report gathers crime and criminal justice in some distinct ways, and here is the report's introduction:

American communities are less safe than they were a decade ago.  That fact is undeniable.  Similarly, the evidence is clear that over the last decade, serious — especially violent — crime rose in 2015 and 2016, then briefly fell before rising again since 2020.  Early indications suggest that the steep rise in homicides in 2020-2021 has slowed, if not reversed, but not returned to levels recorded five or ten years ago.

In other words, to say crime is down is like descending from a tall peak and standing on a high bluff, saying you are closer to the ground — a true but misleading statement. The truth is that violent crime is substantially elevated in major cities (and nationally) compared to pre-2020 levels.

For other crimes, the data is often inconsistent, unreliable, or unavailable making trends difficult — but not impossible  — to discern.  The evidence we do have suggests some serious offenses (i.e., carjacking and auto theft) have continued to rise dramatically.  Other aggregate data suggests some offenses have continued their decades-long decline.

Meanwhile, Americans support for greater law enforcement and stiffer criminal penalties has increased as polls show that the public believes crime has risen, and they feel less safe.

This paper seeks to answer two important questions about public safety in America: 

• What do we know about recent crime trends and how; and
• What is contributing to this trend and why?

To answer those questions, this study will first examine the available data on crime over the past decade, analyze its value and limitations, and assess its meaning for public safety policymakers. Second, the study will analyze what policies and phenomena are driving these crime trends.

Encouraging homicide data as the first quarter of 2024 comes to a close

A few days ago, I received an alert from my local paper about this article reporting that "data from the Columbus Division of Police showed that the city is experiencing some of the lowest levels of violence in a decade."  According to this press piece, the biggest city in Ohio has recorded only 18 murders in this calendar year, compared to 41 at this time last year.  The article also flagged that a number of other cities have also seen significant homicide declines.  

Conveniently and encouragingly, Jeff Asher posted yesterday this new substack entry detailing that Columbus, Ohio is not alone in experiencing a significant homicide decline to start 2024.  Folks should read his full posting for lots more context and details, but here are some highlights:

[M]urder is down around 20 percent in 2024 in more than 180 cities with available data this year compared to a comparable timeframe last year (as of the moment of this piece's publication).  Murder is down 20.5 percent in 183 cities with available data through at least January, down 20.2 percent in 174 cities with data through at least February, and down 20.8 percent in 59 cities with data through at least March 20....

We could still see, and perhaps should expect to see the sample's murder decline to regress towards a more normal rate of decline as the year goes on.  It's only April and there is a ton of time left in 2024 for these figures to regress, but murder is down roughly twice as much with a sample that’s twice as large as what we had last year at this time.... Murder is down more than 30 percent at the moment in Washington DC, New Orleans, Las Vegas, Cleveland, Milwaukee, Detroit, Columbus, Nashville, Philadelphia, and I could keep going....

It's not just murder data in cities pointing to a large decline.  Shooting data from the Gun Violence Archive shows a decline of around 12 percent in terms of shooting victims through March compared to 2023.  This matches the trend of declining shootings in 20 of the 25 cities with available shooting data through at least February this year. 

As readers may recall from prior posts, 2023 saw a considerable (perhaps historic) decline in homicides in the US compared to 2022 (which had itself recorded a small decline in homicides after significant increases in homicides throughout the US in 2020 and 2021).  But the latest AH Datalytics' collection of homicide data for 2024 from a large number of US cities shows now over a 20% cumulative decline(!) in murders across the nation's cities through roughly the first quarter of 2024.  Of course, these remarkable homicide numbers could change in the months ahead, but the many hundreds of fewer murders to start 2024 is certainly something to celebrate and hope it will continue.

Though not mentioned by Asher, I will note that the notable 2023 and 2024 declines in homicide come at a time of relatively low use of the death penalty and relatively lower rates of incarceration by US standards.  The last eight or so years, as detailed in this DPIC fact sheet, have seen historically few death sentences and executions across the US for the modern capital punishment era.  Also national incarceration totals and rates have been in relative (slow) decline for about a decade, and the US likely now has its lowest total incarceration rate since the mid 1990s.  Critically, I do not think these punishment trends can in any way directly explain recent homicide declines, but I had seen some claims that the spike in homicides in 2020 and 2021 might be atributed in part to these punishment trends.  Recent homicide declines would seem to partial couner worries that recent punishment trends a chief cause past homicide increases.  And if homicide levels keep dropping at the pace we have seen in 2023 and so far in 2024, we may soon hit modern record low levels in both homicides and severe punishments in the US. 

Lots of (little?) news and updates from the US Sentencing Commission

This morning I received an email from the US Sentencing Commission with some items that seemed blogworthy:

Meeting Rescheduled

Notice of Public Meeting

The Commission has rescheduled its last public meeting of the 2023-2024 amendment year for April 17 at 1:30 pm (ET).  At the meeting, Commissioners may vote to promulgate amendments to the federal sentencing guidelines. The meeting will be held in the Thurgood Marshall Federal Judiciary Building and will be streamed live.

New Data

IDA and JSIN Updates

The Commission has updated the Interactive Data Analyzer (IDA) and Judiciary Sentencing Information (JSIN). IDA now offers a brand new section presenting information on the prior convictions of individuals sentenced in the federal system. Visitors can also explore new data by the economic crime subtypes found under §2B1.1.

As previously noted in this post, the USSC had initially scheduled its concluding public meeting of the 2023-2024 amendment cycle, which includes "Vote to Promulgate Proposed Amendments," for April 10.  But now we have to wait another week to see if we get a vote on an acquitted conduct amendment and perhaps others from the Commission.

In the meantime, federal sentencing data junkies have the USSC's FY24 First Quarterly Data Report to check out, and this is a "preliminary data report [that] reflects information received on individuals sentenced through the first quarter of fiscal year 2024 (October 1, 2023 through December 31, 2023)."  My too-quick review of the data suggested that there are not big surprises (save perhaps a little dip in the total number of cases sentenced).

New and notable BOP data on relative success of the CARES home confinement cohort

This new Forbes piece by Walter Pavlo, headlined "Bureau Of Prisons Releases Encouraging Study On CARES Act," reports on new data from BOP showing the extremely low recidivism rae for those moved from federal prison into home confinement during the pandemic. Pavlo provides some of the context and key findings for this BOP report:

Congress passed the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) on March 25, 2020 just as the pandemic reached the United States. CARES Act allowed individuals in federal correctional facilities who were a Low or Minimum security risk with underlying health conditions to serve their sentence in home confinement earlier than they would have been eligible for without the CARES Act.

Prior to the CARES Act, the Federal Bureau of Prisons (BOP) allowed inmates to serve 10% of their sentence imposed, up to a maximum of 6 months, on home confinement as part of completing their sentence.  This program too is a success and allows inmates of all security levels to transition back into society.  Many of those in federal custody, about 90%, will eventually be released from custody. Transition back to society is an important part of the corrections process.

The BOP has now completed a study on the inmates who were transferred to home confinement under CARES Act and the results are encouraging. In a press release from the BOP, it stated, “These findings suggest that the CARES Act’s provision for early and extended home confinement did not negatively impact recidivism rates. In fact, it may have contributed to a reduction in post-release recidivism, offering a promising direction for justice-involved stakeholders seeking effective strategies to reduce incarceration and its associated costs, while also promoting public safety and successful reintegration into society.”...

The BOP has the policies to move more Minimum and Low security inmates back into society sooner. Under the Second Chance Act, signed by George W. Bush, inmates can be placed on prerelease custody for up to a year of their sentence. Prerelease custody includes halfway house and home confinement.  However, the BOP has struggled recently with halfway house capacity, leaving many of inmates in institutional prisons far longer than necessary.  This problem of shortages of halfway house space is problematic because the First Step Act allows inmates to earn credits toward additional home confinement based on the time served.  The maximum amount of time an inmate can earn each month is 15 days per month but there is no limit to the amount of credits that can be earned over the term of incarceration.  This means that inmates in the future could be on home confinement for years....

The study found that overall, the use of the CARES Act to send individuals to home confinement sooner and for longer periods did not have an apparent negative impact on their recidivism rates compared to others in home confinement. Results indicate that while in home confinement individuals with a CARES assignment fail no more or less than comparable persons in home confinement.  And those with a CARES assignment fail less often than comparable persons after release.

This study matters because there are currently 78,000 out of roughly 156,000 inmates who are minimum and low security inmates in federal prison. Supervision of inmates in home confinement is significantly less costly for the BOP than housing inmates in secure custody.  According to a Federal Register report on the CARES Act, in Fiscal Year (FY) 2019, the cost of incarceration fee (COIF) for a Federal inmate in a Federal facility was $107.85 per day; in FY 2020, it was $120.59 per day.  In contrast, according to the Bureau, an inmate in home confinement costs an average of $55 per day — less than half of the cost of an inmate in secure custody in FY 2020.  Although the BOP’s decision to place an inmate in home confinement is based on many factors, where the BOP deems home confinement appropriate, that decision has the added benefit of reducing the expenditures.  Such cost savings were among the intended benefits of the First Step Act.

The BOP intends to build on the information from this study and others on home confinement.  Prisons remain crowded and many inmates are serving longer sentences in expensive institutions than are necessary.  Home confinement, which is a major benefit to both inmates and tax payers, is a big part of the First Step Act.  Whether the BOP can fully implement the program to get inmates out of prisons and into the community faster remains a challenge.

Lots of perspectives at Vital City around criminal justice research

This new issue of the journal Vital City has a large collection of essays engaging with the rich topic of criminal justice research and practice.  There are too many intriguing pieces to flag or summarize them all here, but this Editors’ Note by Elizabeth Glazer and Greg Berman sets up the context and much of what follows. Here is an excerpt:

Starting in earnest during the Clinton administration, there has been a concerted effort by a range of important actors to try to encourage “evidence-based” criminal justice policy and programs — a phrase at once hilarious and poignant....

But the phrase does have a meaning, if coded.  The subtext, rarely spoken aloud, is an attempt to reduce the temperature of the public discourse about criminal justice, moving policymaking away from the realm of politics and into the realm of science as much as possible.  In the years before evidence-based reform emerged as a concept, high-profile tragedies — cases of child abduction or random murders — had been used to make the case for more punitive lawmaking throughout the country. At the federal level, the infamous Willie Horton campaign advertisement in 1988 performed similar work.

The evidence-based policy movement, in criminal justice and other fields, sought to move away from such demagoguery.  During the era of reduced crime that began in the 1990s, it proved reasonably successful. “Follow the data” became a rallying cry that appealed to both Democrats and Republicans.  One sign of the movement’s success was the creation of CrimeSolutions.gov, a website administered by the U.S. Department of Justice that summarizes academic research in an effort to help policymakers and practitioners figure out which criminal justice programs and practices work and which do not.

Recent years, however, have seen the emergence of a palpable backlash to the evidence-based movement.  Perhaps the most extreme expression of this backlash has been the argument by prison abolitionists and other radical activists that the evidence-based paradigm “strengthens the influence of neoliberalism, punitive impulses, and white supremacy over criminal system policy and procedure.”  They point to the fact that the United States is still plagued by levels of violence, racial disparities and incarceration rates that dwarf peer nations.  What use is social science evidence if it cannot prevent, or meaningfully ameliorate, these kinds of problems?

Earlier this year, Megan Stevenson, an economist at the University of Virginia Law School, published an essay in the Boston University Law Review raising further questions about evidence-based reform.  In “Cause, Effect, and the Structure of the Social World,” Stevenson reviews a half-century of randomized controlled trials (“RCTs” are known as the “gold standard” of social science) and finds that, “Most reforms and interventions in the criminal legal space are shown to have little lasting impact when evaluated with gold-standard methods of causal inference.”  For Stevenson, this is a reflection of the immutable social structures of the world that make change hard to engineer, at least when using the kinds of “limited-scope interventions” that lend themselves to randomized trials.  Provocatively, Stevenson argues that it may be necessary to abandon narrow, evidence-based reform and instead “seek systemic reform, with all its uncertainties.”

Stevenson’s essay got us thinking.  Is the notion that we can meaningfully address social problems a myth?  Does it really make sense to rely on evidence to guide policy?  And if so, what should this look like?

At the same time, our friends at Hypertext, the journal of the Niskanen Center — recently named the “most interesting think tank in American politics” by Time magazine — were wrestling with similar questions. So we decided to join forces. Together, we asked more than a dozen leading scholars, philanthropists, journalists and government policymakers to discuss the role of evidence in policymaking, using Stevenson’s article as a jumping-off point. The result of this exploration makes up the bulk of this issue of Vital City.

US Sentencing Commissions publishes 2023 Annual Report and new retroactivity data on 2023 criminal history amendments

This afternoon, the US Sentencing Commission sent out an email that flagged a bunch of notable new materials on the USSC's website.  Data fans will be especially interested in a lot of these new items, which I link below.  But everyone should mark their calendars for April 10, 2024; the USSC has now created a key date though this Public Meeting Notice.  This will be the last scheduled public meeting of the 2023-2024 amendment cycle for the Commission and on the agenda is "Vote to Promulgate Proposed Amendments."  I am hoping an acquitted conduct amendment will be among those getting a positive vote from the Commission, but we will need to tune in on April 10 to see.

In the meantime, USSC and federal sentencing data junkies have some new items to check out, and here is how the USSC's email reports on these new materials:

(Published March 25, 2024) - The 2023 Annual Report highlights the Commission’s major activities and accomplishments during fiscal year 2023.  The Annual Report also includes a new in-depth analysis of federal sentencing trends and noteworthy shifts in the caseload.

(Published March 25, 2024) - The Commission has published its first analysis of motions for a reduced sentence pursuant to retroactive application of Parts A and B of Amendment 821, relating to Criminal History (effective November 1, 2023).

• NEW Retroactivity Data Relating to Part A, "Status Points"
• NEW Retroactivity Data Relating to Part B, "Zero-Point Offenders"

(Published March 25, 2024) - The Commission continues to release additional fiscal year 2023 federal sentencing data following publication of the 2023 Sourcebook of Federal Sentencing Statistics earlier this month.

• Final FY23 Quarterly Data Report 

"Misdemeanor Enforcement Trends in New York City, 2016–2022"

The title of this post is the title of this notable and lengthy new research report released today by the Brennan Center.  The report's homepage includes links to data and fact sheets and all sort of other interesting materials.  And the report's introduction highlights the importance of greater data gathering in this space, and here are a few paragraphs therefrom (with footnotes omitted):

When people think of the American criminal justice system, they think of prisons, lengthy sentences, and parole hearings. They also think of serious offenses such as murder, aggravated assault, and rape. But the majority of cases are less serious offenses, as defined in statute, including drug possession, shoplifting, gambling, public drunkenness, disorderly conduct, vandalism, speeding, simple assault, and driving with a suspended license.  For many Americans, minor offenses — that is, misdemeanors, violations, and infractions — are the primary entry point into the criminal justice system. Entanglement in this part of the system is anything but minor....

Despite its broad reach, the minor offense system is difficult to quantify.  Government officials often do not collect data on infractions, civil violations, and other offenses they consider too trivial to count. The data that is collected — typically data on misdemeanors — is likely an undercount.  Even so, in the United States, misdemeanors amount to roughly three-quarters of all criminal cases filed each year. Every day, tens of thousands of people are ticketed, arrested, or arraigned for a misdemeanor, making it a central feature of the United States’ crisis of overcriminalization and an engine of its overreliance on incarceration.

In recent years, scholars and legal practitioners have brought attention to the need to rein in the sprawling minor offense system.  Misdemeanor adjudication has earned a reputation of assembly-line justice that lacks meaningful public defense or due process protections.  Some researchers have described it as a means to mark and manage disadvantaged groups deemed potential risks, whereby the “process is punishment.” In addition to the degradation of arrest, the imposed obligations and sanctions — frequent court appearances, the opportunity cost of lost wages, fines and fees, collateral consequences of a criminal record, and even jail detention — are frequently disproportionate to the severity of the crime....

As concern about the minor offense system has grown, efforts to shrink it have proliferated.  At the same time, since the start of the Covid-19 pandemic, many people in urban areas have perceived or experienced increased physical and social disorder in public spaces — petty theft, open drug use, public intoxication, people suffering mental health crises, homeless encampments, defacement of property, transit fare evasion, and public urination.  Petty and nuisance offenses, visible poverty, and public displays of disorderly and unpredictable behavior, coupled with high-profile media coverage of violent crimes and harassment, have renewed calls for stronger enforcement of lower-level offenses.

This report seeks to shed light on minor offense enforcement — what has changed in recent years, what has not, and what can be done to fix it.  Building on previous scholarship, it offers an updated national snapshot of the scale of misdemeanor cases filed between 2018 and 2021, highlighting changes over the Covid-19 pandemic.

Prison Policy Initiative releases tenth edition of its flagship report, now "Mass Incarceration: The Whole Pie 2024"

It is pi day, which for the last decade has meant a special treat for sentencing fans and criminal justice data fans: the Prison Policy Initiative's latest, greatest version of its amazing incarceration "pie" graphic and associated report. The latest report "Mass Incarceration: The Whole Pie 2024" provides a spectacular accounting of the particulars of who and how of incarceration in the United States. As I have said in the past, the extraordinary "pies" produced by PPI impart more information in a few images than just about any other single resource I know about (and this PPI press release has the main visual and other highlights). Here is part of this latest pie report's introductory text and  overview (links and format from the original):

The various government agencies involved in the criminal legal system collect a lot of data, but very little is designed to help policymakers or the public understand what’s going on. The uncertainty that results muddies the waters around our society’s use of incarceration, giving lawmakers and lobbyists the opportunity to advance harmful policies that do not make us safe. As criminal legal system reforms become increasingly central to political debate — and are even scapegoated to resurrect old, ineffective “tough on crime” policies — it’s more important than ever that we get the facts straight and understand the big picture.

Further complicating matters is the fact that the U.S. doesn’t have one criminal legal system; instead, we have thousands of federal, state, local, and tribal systems. Together, these systems hold over 1.9 million people in 1,566 state prisons, 98 federal prisons, 3,116 local jails, 1,323 juvenile correctional facilities, 142 immigration detention facilities, and 80 Indian country jails, as well as in military prisons, civil commitment centers, state psychiatric hospitals, and prisons in the U.S. territories — at a system-wide cost of at least $182 billion each year.

This report offers some much-needed clarity by piecing together the data about this country’s disparate systems of confinement. It provides a detailed look at where and why people are locked up in the U.S., and dispels some common myths about mass incarceration to focus attention on overlooked issues that urgently require reform....

While this pie chart provides a comprehensive snapshot of our correctional system, the graphic does not capture the enormous churn in and out of our correctional facilities, nor the far larger universe of people whose lives are affected by the criminal legal system. In 2022, about 469,000 people entered prison gates, but people went to jail more than 7 million times. Some have just been arrested and will make bail within hours or days, while many others are too poor to make bail and remain in jail until their trial. Only a small number (about 102,700 on any given day) have been convicted, and are generally serving misdemeanors sentences of under a year. At least 1 in 4 people who go to jail will be arrested again within the same year — often those dealing with poverty, mental illness, and substance use disorders, whose problems only worsen with incarceration.

US Sentencing Commission releases latest "compassionate release" data through Sept 2023

The US Sentencing Commission has now released its very latest data on sentence reduction motions on this webpage, which also includes additional graphics and context about court dispositions of what are typically known as "compassionate release" motions.  This Fiscal Year 2023 data run includes information through September 2023 (which is technically before the Commission's new guideline became law, but after it had been submitted to Congress).

As I have noted before, the long-term data going back to the height of the COVID pandemic period reveals, unsurprisingly, that we now see in FY 2023 many fewer sentence reduction motions filed or granted.  Though there are month-to-month variations, it would be roughly accurate to say that an average month of FY 2023 had a few dozen compassionate release motions granted and a few hundred of these motions denied nationwide.  In will be interesting to see if the relatively stable monthly patterns here change in any significant way in FY 2024 when the Commission's new guideline became the new law of the land (as of November 2023).

As I have noted before, among the striking stories in these data are the variations in application and grant rates from various districts.  As one example from the FY 2023 data, the Eastern District of Michigan granted half of a small number of sentence reduction motions (5 of only 10), whereas the Western District of Michigan granted none of a large number of sentence reduction motions (0 of only 60).  Similarly, the Northern District of Illinois granted nearly half of these motions in FY 2023 (13 of 27), whereas the Central and Southern District of Illinois each granted only one such motion out of a pool of 44 motions. 

There are all sorts of other interesting data points in this new report.  For example, it seems that a distinctively larger number of drug defendants secured sentencing reductions in FY 2023 (making up roughly 60% of the reduction grants while comprising only roughly 45% of the federal prison population).  Also, reasons reported by judges for granting these motions are also intriguing.

"An Overview of Intermittent Confinement and Weekend Incarceration in the U.S."

The title of this post is the title of this research document now available via SSRN that I helped with through the Drug Enforcement and Policy Center along with Peter Leasure and Jana Hrdinova. Here is its abstract:

In the current study, we provide an overview of federal law on intermittent confinement, present data on the use of intermittent confinement in the federal system and weekend incarceration in the state system, discuss existing research on intermittent confinement and weekend incarceration, and present results of a survey of federal probation officers on their opinions of intermittent confinement.  Overall, the results of the study indicated that intermittent confinement and weekend sentences are rarely used in federal and state systems (relative to traditional incarceration sentences). Additionally, we found that a single federal district (Texas West) accounted for the majority of federal intermittent confinement cases across several years of data.  Results of the survey of federal probation officers showed that logistical issues with intermittent confinement and incarceration facility availability may be a cause for low numbers of intermittent confinement sentences.  The finding about logistical issues with intermittent confinement was consistent with previous research.  Informed by these findings, directions for future research are discussed in detail.

Fascinating data on state court criminal cases from the Court Statistics Project

I just came accross this recent data document from the Court Statistics Project, which collects annual caseload data from state courts. The document has notable data on all sorts of notable aspects of state court work, and here are just some of the criminal case highlights and the broader context:

In 2022, state courts handled 64.6 million incoming cases, a 2% increase from 2021, but caseloads are still down by 18.7 million cases when compared to the 2019 total of 83.2 million. As previously reported, 2020 represented a historic low for incoming caseloads. Courts started seeing a rebound in 2021 and 2022. Incoming civil cases were up 5% from 2021 to 2022, domestic relations and criminal cases were up 2%, and incoming traffic cases increased by 1%. Juvenile cases, in contrast to the overall trend, experienced a further decline in incoming cases from 2020 to 2021, before showing a 7% increase in 2022.

Criminal cases saw a slight increase in 2022.  They were up 2% from 2021, although still down 14% from 2019. In total, 46 states reported 13.7 million incoming criminal cases in 2022.  Ten million incoming misdemeanor cases (defined as those crimes with a maximum punishment of one year in jail and/or fines) were reported for 44 states, an increase of 1% from 2021 and a 16% drop from 2019.  Felony cases showed a 4% decrease from 2021 to 2.9 million cases. This is 10% below 2019 levels for incoming felony cases.

I often find it hard to fully wrap my head around these large numbers, and so I sometimes think about what these caseload numbers mean on a daily basis. In rough terms, these annual data mean that on each and every average work day there are 12,000 incoming felony cases and 40,000 incoming misdemeanor cases.

Prison Policy Initiative releases "Women’s Mass Incarceration: The Whole Pie 2024"

The folks at Prison Policy Initiative have released its latest version of in its "Whole Pie" incarceration series with this new report titled "Women’s Mass Incarceration: The Whole Pie 2024" authored by Aleks Kajstura and Wendy Sawyer.  As I always recommend, everyone should click through to see all the great graphics and broader narratives that go with these reports. Here are parts of text from the start and the very end of this report:

With growing public attention to the problem of mass incarceration, people want to know about women’s experiences with incarceration.  How many women are held in prisons, jails, and other correctional facilities in the United States? Why are they there?  How are their experiences different from men’s?  These are important questions, but finding the answers requires not only disentangling the country’s decentralized and overlapping criminal legal systems, but also unearthing the frustratingly limited data that’s broken down by gender.

This report provides a detailed view of the 190,600 women and girls incarcerated in the United States and how they fit into the even broader picture of correctional control.  We pull together data from a number of government agencies and break down the number of women and girls held by each correctional system, by specific offense, in 446 state prisons, 27 federal prisons, 3,116 local jails, 1,323 juvenile correctional facilities, 80 Indian country jails, and 80 immigration detention facilities, as well as in military prisons, civil commitment centers, and prisons in the U.S. territories.  We also go beyond the numbers, including rare self-reported data from a national survey of people in prison to offer new insights about incarcerated women’s backgrounds, families, health, and experiences in prison. This report answers the questions of why and where women are locked up — and much more....

The picture of women’s incarceration is far from complete, and many questions remain about mass incarceration’s unique impact on women. This report offers the critical estimate that a quarter of all incarcerated women are unconvicted. But — since the federal government hasn’t collected the key underlying data in 20 years — is that number growing? And how do the harms of that unnecessary incarceration intersect with women’s disproportionate caregiving to impact families? Beyond these big picture questions, there are a plethora of detailed data points that are not reported for women by any government agencies. In addition to the many data holes and limitations mentioned throughout this report, we’re missing other basic data, such as the simple number of women incarcerated in U.S. territories or involuntarily committed to state psychiatric hospitals because of justice system involvement....

While more data are needed, the data in this report lend focus and perspective to the policy reforms needed to end mass incarceration without leaving women behind.

US Sentencing Commission releases its 2023 Sourcebook of Federal Sentencing Statistics

I received via email this morning some exciting news for federal sentencing data nerds:

Today the U.S. Sentencing Commission released its 2023 Sourcebook of Federal Sentencing Statistics (covering October 1, 2022 through September 30, 2023).

The Sourcebook presents information on the 64,124 individuals sentenced in fiscal year 2023 — a federal caseload that held steady from the previous year.  The Sourcebook provides the public with a comprehensive and timely compilation of information received and analyzed by the Commission and collected from the 300,000+ sentencing documents submitted by the federal courts nationwide.

The Commission typically publishes its yearly Annual Report with its yearly Sourcebook, though the email I received indicted that this report would be forthcoming.  In future posts, I may try to mine some interesting factoids from the official FY2023 federal sentencing data, but I already noticed that it appears the number of sentencings in FY2023 (61,124) appears to be remarkably close to the sentencings completed in FY2022 (61,142 as reported in this prior post).

Notable new analysis of notable (old) data on prison admissions

The data on prison admissions (from 2021) reported in this new Crime and Justice News item caught my eye this afternoon.  Here are the details:

A new analysis from the Council of State Government Justice Center found that despite recent declines, parole-probation violators still make up a large proportion of new prison admissions. In 2021, 44% of state prison admission were people who violated the terms of their parole or probation sentences. And on any given day, 1 in 4 people in state prison were incarcerated because they violated the terms of their supervision. Those proportions have remained constant, even as overall numbers have decreased....

Incarceration for violations of supervision declined in 2020 and, in many states, continued to drop in 2021.  Ten states — Colorado, Minnesota, Hawaii, New Jersey, Kansas, New York, Rhode Island, Maryland, Pennsylvania and Vermont — reduced admissions by 50% or more.  The declines are part of a larger trend: from 2018 to 2021, across the country, the numbers of prison admissions from community supervision decreased by one-third. Part of that was due to decreased criminal activity during the height of the pandemic, with the exception of homicides and intimate-partner violence. It was also affected by changes in supervision practices and court backlogs.

Researchers examining those states where supervision incarcerations fell — and where they didn’t — have found no significant relationship between changes in the number of people incarcerated for supervision violations and changes in violent-crime rates at state levels.  But in 2021, states collectively spent more than $10 billion incarcerating probation-parole violators. More than $3 billion of that was for technical violations, not for new criminal activity....

Racial disparities begin prior to criminal-justice-system contact and persist at all stages of the system.  When looking at parole and disparities, 18 states — including much of the Deep South —  did not exhibit disparities in revocation rates, while 20 states increased the disparities.  Twelve states — including Montana, Wyoming, Nebraska, Colorado, New Mexico, Minnesota, Wisconsin, Iowa, Illinois, Indiana, New Jersey, and Pennsylvania — reincarcerated Black parolees at a 20% or higher rate.

In praise of efforts to develop the new "Real-Time Crime Index"

I am excited to see this new Substack entry from Jeff Asher talking up the development of a new crime data resource. Here is part of the start of the posting (with links from the original):

One of the greatest challenges to understanding crime trends is that data is frequently old and stale by the time it is received. Imagine only learning about the Texas Rangers winning the 2023 World Series winner 9 months after the last out.  That’s essentially the world of crime trends.

The solution to date for crime data has been to collect data from dozens or hundreds of cities that make it publicly available in order to guesstimate what’s happening nationally.  That’s what our YTD murder dashboard attempts to do and it’s also how groups like the Council on Criminal Justice and Major Cities Chiefs Association approach the problem.

The advantages of this methodology are clear: it's fast, it uses publicly available data, and it's reasonably predictive of the national trend.  The disadvantages are equally clear: the data that individual agencies publish is not standardized, there's a decent sized margin of error — especially when the sample is smaller, you’re stuck doing YTD comparisons which aren’t particularly useful for a good chunk of the year, and going beyond murder boosts the difficulty quite a bit.

All of those problems will hopefully be a thing of the past as we start to build a new project called the Real-Time Crime Index (RTCI).  The RTCI is being undertaken thanks to a grant from Arnold Ventures with the objective of creating a repository of crime data from 500 to 1,000 cities that is updated monthly.  The goal is to more or less mimic what BLS does with employment data to create an understanding of national crime trends in as close to real-time as possible.

This project is being done in collaboration with FBI and BJS — the nation’s arbiters of crime data — with a goal of eventually transitioning stewardship of the RTCI to the Federal government by the end of the grant.

Regular readers will not be suprised to hear that I would also love to see a Real-Time Sentencng Data project in the works, but that would be another remarkably hard data project.  Getting lots more real-time crime data would be a great achievement, and I wish the folks working on the RTCI all the best in their important and valuable endeavors.