Friday, May 13, 2022

Federal prison population up a lot more than another 1,500 persons in a little more than a month

Regular readers are now used to my regular monthly posts about the federal prison population based on Bureau of Prison data.  These posts of late have regularly noted significant and steady population growth in recent months  In this post on March 18, I noted that the federal prison population had grown by over 1,100 persons in just four weeks from mid February and mid March.  And this post on April 8 noted that it then took only three weeks for another 1000+ person surge of federal prisoners between mid March and early April. 

The federal Bureau of Prisons now has updated reporting of "Total Federal Inmates" as of May 12, 2022, and these basic growth trends are continuing.  As of April 7, 2022, the official BOP count was at 155,274, but now as of May 12, the total number of federal inmates is at 156,939.  So, in just the last five weeks, there has been another 1,655 more federal prisoners added to the population compared to the total in early April.  If this pace of federal prison growth continues in coming months, it is quite possible that 2022 could experience a level of federal incarceration growth we have not seen in decades. 

As I have said before, I am inclined to guess that this recent spike in the number of federal prisoners reflects some "return to normal" operations for the federal criminal justice system, with fewer COVID-related delays in cases and prison admissions (and fewer COVID-related releases).  Such a development (especially after 2021 being a year of notable federal prison population growth) would be particularly significant given that candidate Joe Biden promised to "take bold action to reduce our prison population" and to "broadly use his clemency power for certain non-violent and drug crimes."   To his credit, since my last posting on prison population, Prez Biden did grant 75 commutation to federal inmates (most of whom were already serving their time on home confinement).  But a one-time grant of 75 clemencies necessarily looks somewhat paltry in the face of week-over-week-over-week-over-week federal prison population growth averaging more than 300 persons.

May 13, 2022 in Data on sentencing, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Monday, May 09, 2022

US Sentencing Commission releases latest detailed "Compassionate Release Data Report"

Cr-line-chart-2022_cropVia email, I got word that the US Sentencing Commission today published this updated compassionate release data report.  Here is the very brief accounting of the report from the email (as well as a reprinting of the graphic that appears as Figure 1 of the report):

With the advent of the COVID-19 pandemic, the courts received thousands of compassionate release motions, most filed by offenders.  This report provides an analysis of the compassionate release motions filed with the courts during the COVID-19 pandemic.

The Commission received the following information from the courts on motions decided during fiscal years 2020 and 2021 (October 1, 2019 – September 30, 2021):

  • 3,867 offenders were granted compassionate release. This represents 17.2% of motions.

  • 18,653 offenders were denied compassionate release. This represents 82.8% of motions.

There are lots and lots of interesting data points throughout this data report, including data highlighting that people sentenced long ago (and before the guidelines became advisory) had significantly higher success in getting a sentence reduction.  Also interesting is the data detailing the reasons that courts provided for granting these sentencing reduction motions, which suggests some small evolution in stated reasons from FY 2020 to FY 2021.

But most striking data are those details the dramatic variations in grant rates from various districts. As but one of many remarkable examples, consider the three districts of Georgia: the Southern District of Georgia granted only 5 out of 248 sentence reduction motions for a 2% grant rate; the Middle District of Georgia granted only 4 out of 217 sentence reduction motions for a 1.8% grant rate; but the Northern District of Georgia granted 76 out of 170 sentence reduction motions for a 44.7% grant rate.  One could also tell an island variation story, and no motions were granted (out of only six) in the Virgin Island district; but that lovely island district of Puerto Rico saw 79.2% of motions (19 of 24) granted. 

Remarkably, the District of Maryland — with a total of 211 sentencing reduction motions granted (though "only" a grant rate of 32.7% with 646 motions) — granted more of these motions that all the courts of the Fifth Circuit!  (The Fifth Circuit had the lower total circuit grant rate of 9.3% with only 204 motions granted out of 2,197 total brought.) 

May 9, 2022 in Data on sentencing, Detailed sentencing data, FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, May 05, 2022

Important new report explores "The Limits of Recidivism: Measuring Success After Prison"

26459-0309276977-450The quoted portion of this post is the title of this important new report released by the National Academies of Sciences, Engineering and Medicine.  Here is an account of this report from the NAS website:

Nearly 600,000 people are released from state and federal prisons annually. Whether these individuals will successfully reintegrate into their communities has been identified as a critical measure of the effectiveness of the criminal legal system.  However, evaluating the successful reentry of individuals released from prison is a challenging process, particularly given limitations of currently available data and the complex set of factors that shape reentry experiences.

The Limits of Recidivism: Measuring Success After Prison finds that the current measures of success for individuals released from prison are inadequate.  The use of recidivism rates to evaluate post-release success ignores significant research on how and why individuals cease to commit crimes, as well as the important role of structural factors in shaping post-release outcomes.  The emphasis on recidivism as the primary metric to evaluate post-release success also ignores progress in other domains essential to the success of individuals returning to communities, including education, health, family, and employment.

In addition, the report highlights the unique and essential insights held by those who have experienced incarceration and proposes that the development and implementation of new measures of post-release success would significantly benefit from active engagement with individuals with this lived experience.  Despite significant challenges, the report outlines numerous opportunities to improve the measurement of success among individuals released from prison and the report’s recommendations, if implemented, will contribute to policies that increase the health, safety, and security of formerly incarcerated persons and the communities to which they return.

The full report runs a full 200 pages, and this three-page pdf provides highlights.  And this press release also provides this additional overview and more summary details, and here is an excerpt:

Recidivism is an inadequate measurement of success after release from prison, says a new report from the National Academies of Sciences, Engineering, and Medicine. The report recommends researchers develop supplementary measures that evaluate success across multiple areas of a person’s life after prison — including employment, housing, health, social support, and personal well-being — and that measure interactions with the criminal justice system with more nuance. Federal efforts should be directed to developing national standards for recidivism data and new measurements....

“Our report draws on the expertise of individuals who have experienced reentry, those who work in corrections and reentry services, as well as victims’ advocates and many other communities — and it’s clear that it’s time we recognize the numerous shortcomings of relying exclusively on recidivism data,” said Richard Rosenfeld, Curators’ Distinguished Professor Emeritus of Criminology and Criminal Justice at the University of Missouri-St. Louis, and chair of the committee that wrote the report. “Better measures could open many doors for better decision-making and policy.”...

Recidivism is also limited in that it is a binary measure, says the report. Decades of research have shown that ceasing criminal activity is a process and may involve setbacks. Recidivism rates fail to capture indicators of progress toward the cessation of criminal activity, such as reductions in the seriousness of criminal activity or increases in time between release and a criminal event. Researchers should supplement recidivism rates with these measures of moving away from crime, the report says.

The report recommends the development of new measures of post-release success that take into account a number of factors in people’s lives after incarceration, including personal well-being, education, employment, housing, family and social supports, health, civic and community engagement, and legal involvement.  In particular, significant efforts — including by federal agencies — should be directed to developing national standards for measuring post-release success.  Creating national standards could make data easier to compare across programs and jurisdictions. Creating a website that contains core measures and data collection instruments could hasten development of these standards, the report says.

Federal agencies, including the National Institute of Justice, Bureau of Justice Statistics, Bureau of Justice Assistance, and National Institutes of Health, should convene research panels to assess new measures of post-release success.  These agencies should also solicit grant proposals from researchers and practitioners who work collaboratively with formerly incarcerated people to review new measures.

Researchers should also develop new ways to measure barriers to and facilitators of post-release success, which could help improve understanding of how to best serve those released from prison. Individuals released from prison face a number of significant barriers, such as returning to communities without adequate employment opportunities, or lacking access to mental health counseling, among others — and better measures could enhance our understanding of which community and policy factors make post-release success more or less likely.

May 5, 2022 in Data on sentencing, Detailed sentencing data, Reentry and community supervision | Permalink | Comments (0)

Sunday, May 01, 2022

"Abolishing the Evidence-Based Paradigm"

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

The belief that policies and procedures should be data-driven and “evidence-based” has become criminal law’s leading paradigm for reform.  This evidence-based paradigm, which promotes quantitative data collection and empirical analysis to shape and assess reforms, has been widely embraced for its potential to cure the emotional and political pathologies that led to mass incarceration.  It has influenced reforms across the criminal procedure spectrum, from predictive policing through actuarial sentencing.  The paradigm’s appeal is clear: it promises an objective approach that lets data – not politics — lead the way and purports to have no agenda beyond identifying effective, efficient reforms.

This Article challenges the paradigm’s core claims.  It shows that the evidence-based paradigm’s objectives, its methodology, and its epistemology advance conventional assumptions about what the criminal legal system should strive to achieve, whom it should target, and whose voices and interests matter.  In other words, the evidence-based paradigm is political, and it does have an agenda.  And that agenda, informed by neoliberalism and the enduring legacy of white supremacy in the criminal legal system, strengthens — rather than challenges — the existing system.

The Article argues that, if left unchallenged, the evidence-based paradigm will continue to reproduce the system’s disparities and dysfunctions, under the veneer of scientific objectivity.  Thus, it must be abolished and replaced with a new approach that advances a true paradigm shift about the aims of criminal legal reform and the role and definition of data and empiricism in advancing that vision.

May 1, 2022 in Data on sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (3)

Tuesday, April 26, 2022

US Sentencing Commission releases "Overview of Federal Criminal Cases, Fiscal Year 2021"

The US Sentencing Commission, despite the persistent lack of a quorum, continues churn out federal sentencing data and helpful reports about that data.  This week brings its regular annual review of federal criminal case data, released under the title "Overview of Federal Criminal Cases, Fiscal Year 2021."  The full 32 page report is available at this link, and the Commission describes and summarizes the report on this webpage in this way:

Summary

The United States Sentencing Commission received information on 57,377 federal criminal cases in which the offender was sentenced in fiscal year 2021.  Among these cases, 57,287 involved an individual offender and 90 involved a corporation or other “organizational” offender.  The Commission also received information on 4,680 cases in which the court resentenced the offender or otherwise modified the sentence that had been previously imposed.  This publication provides an overview of these cases.

Highlights

A review of cases reported to the Commission in fiscal year 2021 reveal the following:

  • The 57,287 individual original cases reported to the Commission in fiscal year 2021 represent a decrease of 7,278 (11.3%) cases from fiscal year 2020, and the lowest number of cases since fiscal year 1999.  The number of offenders sentenced in the federal courts reached a peak in fiscal year 20114 and the number of cases reported in fiscal year 2021 was 33.5 percent below that level.
    • Despite the decrease in overall caseload, sizeable increases were reported in drug trafficking, firearms, sex abuse, child pornography and money laundering cases.
  • Cases involving drugs, immigration, firearms, and fraud, theft, or embezzlement accounted for 83.1% of all cases reported to the Commission.
  • Drug offenses overtook immigration offenses as the most common federal crime in fiscal year 2021, accounting for 31.3% of the total caseload.
    • Drug possession cases continued a five-year downward trend, decreasing 29.6 percent from fiscal year 2020, while the number of drug trafficking cases rose 7.4 percent after reaching a five-year low in 2020.
    • Two-thirds (67.7%) of drug trafficking offenders were convicted of an offense carrying a mandatory minimum penalty.
    • Methamphetamine remained the most prevalent drug type. The 8,494 methamphetamine cases accounted for 48.0 percent of all drug crimes. The proportion of methamphetamine cases has increased steadily since fiscal year 2017, when those cases accounted for 36.6 percent of all drug cases.
    • The number of fentanyl cases increased 45.2 percent from the year before and now constitute the fourth most numerous drug type. In contrast, the proportion of the drug caseload involving heroin and marijuana has steadily decreased over the last five years.

April 26, 2022 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines | Permalink | Comments (0)

Sunday, April 24, 2022

US Sentencing Commission releases FY 2022 first quarter sentencing data (with notably low percentage of within-range sentences)

This weekend I noticed that the US Sentencing Commission just published here its latest quarterly data report which sets forth "1st Quarter 2022 Preliminary Cumulative Data (October 1, 2021, through December 31, 2021)."  These new data provide another official accounting of how the COVID pandemic has impacted federal sentencing.  Specifically, as reflected in Figure 2, while the three quarters prior to the pandemic averaged roughly 20,000 federal sentencings per quarter, the three quarters closing out 2020 had only between about 12,000 and 13,000 cases sentenced each quarter.  Calendar year 2021 has seen a rebounding of total cases sentenced, but this latest quarter had just over 15,000 total federal cases sentenced.  Figure 2 also shows that a steep decline in immigration cases continues to primarily accounts for the decrease in overall cases sentenced.

As I have noted before, the other big COVID era trend is a historically large number of below-guideline variances being granted, and this trend has now extended over the last six quarters (as detailed in Figures 3 and 4).  Though one possible explanation for this trend is that more federal judges are imposing lower sentences because of COVID-related concerns, other data suggest that other factors may be in play.  Specifically, Figure 5 shows that the average guideline minimum and average sentences for all cases has been historically high during the COVID era, which is likely a product of the altered case mix with fewer immigration case and perhaps also because federal prosecutors during COVID are more likely to be moving forward with the most aggravated of cases.  With the "Average Guideline Minimum" and also the "Average Sentence" higher in all COVID-era quarters, we may be seeing a higher percentage of below-guideline sentences largely because the guideline benchmarks are particularly high. 

Whatever the full explanation, in this most recent quarter the data show that only 41.6% of all federal sentences are imposed "Within Guideline Range."  I think this number around the lowest it may have ever been.  And yet, this still mean that more than two out of every five cases are imposed within the guidelines while all the others are still sentenced in the shadow of the guidelines.  (Figure 5 shows how closely the sentences actually imposed and guideline ranges track each other.)  So, even with a notably low percentage of within-range sentences, the guidelines still matter a lot (and many of them remain badly broken).  We should all hope that there will be appointments to the US Sentencing Commission soon so that the government agency tasked by Congress with establishing and improving "sentencing policies and practices for the Federal criminal justice system" can finally get back into full swing.

April 24, 2022 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (8)

Wednesday, April 13, 2022

Prison Policy Initiative releases new report providing a "deep dive into state prison populations"

As detailed in this press release, today the "the Prison Policy Initiative published Beyond the Count, a report that examines the most recent and comprehensive demographic data about people in state prisons and provides a groundbreaking view of the lives of incarcerated people before they were locked up."  Here is more about the report from the press release:

The report analyzes data from the Bureau of Justice Statistics’ “Survey of Prison Inmates,” collected in 2016 and released in late 2020.  The data show what many in the criminal justice reform movement already know: that the U.S. criminal justice system today locks up the least powerful people in society.  Key takeaways include:

  • Many, if not most, people in prison grew up struggling financially. 42% of survey respondents said their family received public assistance before they were 18. Respondents also reported uncommonly high levels of homelessness, foster care, and living in public housing before the age of 18.

  • Most individuals in state prisons report that their first arrest happened when they were children. 38 percent of the people BJS surveyed reported a first arrest before age 16, and 68% reported a first arrest before age 19. The average survey respondent had been arrested over 9 times in their life.

  • The typical person in state prison is 39 years old and has a 10th grade education, a fact that is most likely linked to youth confinement, which disrupts a young person’s life and schooling.

  • Half (49%) of people in state prisons meet the criteria for substance use disorder (SUD), and 65% were using an illicit substance in the immediate lead-up to their incarceration, suggesting that many people who are not locked up for drug offenses are still victims of our country’s choice to criminalize substance use rather than treat it as a health issue.

The Prison Policy Initiative’s report includes more than 20 detailed data tables that allow readers to better understand the people who are in state prisons and the challenges they have faced in their lives.  Beyond the Count also includes a section diving into the data on the race, age, gender identity, and sexual orientation of people in state prisons, explaining that a disproportionate number of incarcerated people are racial minorities, very young or very old, or LGBTQ.  Many of the key demographic findings in Beyond the Count (such as incarcerated people’s age at first arrest) are also broken down by race or gender.  While the data in this report is about people in state prisons, it does not allow statistics to be broken out for individual states.

April 13, 2022 in Data on sentencing, Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (2)

Tuesday, April 12, 2022

Could a shortage of state prosecutors put a further dent in mass incarceration?

Professor John Pfaff effectively documented the important insights, discussed in this article about his 2017 book Locked In, that more prosecutors filing more felony charges was an important contributor to modern mass incarceration.  Against that backdrop, this new Reuters article has me wondering if fewer prosecutors filling fewer charges might further contribute now to declining incarceration.  The article is headlined "Prosecutors wanted: District attorneys struggle to recruit and retain lawyers," and here are excerpts:

District attorneys’ offices across the U.S. are struggling to recruit and retain lawyers, with some experiencing vacancies of up to 16% and a dearth of applicants for open jobs, according to interviews with more than a dozen top prosecutors and five state and national prosecutors’ associations.

The district attorneys said the effects of the COVID-19 pandemic and increasing concern about racial inequities in the criminal justice system — compounded by long-standing issues with relatively low pay and burnout — have made a career as a state prosecutor a tougher sell in the past several years.

“We're seeing a prosecutor shortage throughout the country; it's not limited to large jurisdictions versus small jurisdictions,” said Nelson Bunn, executive director of the National District Attorneys Association, a trade group with 5,000 members....

Staffing shortages are affecting prosecutors’ decisions about whether to bring certain criminal cases to trial, according to Anthony Jordan, president of the District Attorneys Association of the State of New York. "We don’t get to choose the crimes that come in," said Jordan, who is the district attorney in Washington County, New York. "But if you don’t have enough people to prosecute them then you have to let certain ones go.”

Data from the Maricopa County Attorney's Office in Phoenix, Arizona illustrate that challenge.  The number of cases the office prosecuted dropped from nearly two-thirds of felonies referred by law enforcement in 2018 to under half in 2020. And the number of vacancies in the office of 338 attorneys continues to rise — increasing nearly 53% between July 2020 and April 2022.

Recent BJS data, flagged here, indicate that the national prison population has declined nearly 25% from 2010 to 2020, although a good portion (but not all) of this prison population decline has been a consequence of COVID pandemic dynamics.  Ultimately, a number of legal and extra-legal forces have been contributing to a decline in incarceration in recent years.  And Pfaff's work suggests that, if there is a sustained period of fewer prosecutors filling fewer charges nationwide, we should expect some continued declines (or at least reduced likelihood of US prison populations growing significantly in coming years).

April 12, 2022 in Data on sentencing, Who Sentences | Permalink | Comments (5)

Thursday, March 31, 2022

BJS releases new report on "Correctional Populations in the United States, 2020 – Statistical Tables"

I just noticed that last week the Bureau of Justice Statistics released a new accounting of correctional populations in this document titled ""Correctional Populations in the United States, 2020 – Statistical Tables." The first page of the 14-page document provides this overview and "highlights":

At yearend 2020, an estimated 5,500,600 persons were under the supervision of adult correctional systems in the United States, 11% fewer than at the same time the previous year.  This was the first time since 1996 that the total correctional population dropped to less than 5.6 million.  About 1 in 47 adult U.S. residents (2.1%) were under some form of correctional supervision at the end of 2020, a decrease from 1 in 40 (2.5%) at the end of 2019.  This 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. 

  • About 7 in 10 persons under correctional supervision were supervised in the community (3,890,400) at yearend 2020, while about 3 in 10 (1,691,600) were incarcerated in a state or federal prison or local jail.
  • The decline in the correctional population during 2020 was due to decreases in both the community supervision population (down 276,700 or 6.6%) and the incarcerated population (down 294,400 or 18.9%).
  • From 2010 to 2020, the correctional population decreased 22.4% (down 1,588,400 persons).
  • From 2010 to 2020, the decrease in the probation population accounted for 63.1% of the total decline in the correctional population.
  • Among persons under community supervision at yearend 2020, the majority were on probation (3,053,700), while a smaller portion were on parole (862,100).
  • During the past decade, the parole population was the only segment of the correctional population to increase, growing from 11.9% of those under correctional supervision in 2010 to 15.7% in 2020.
  • At yearend 2020, about 2,140 per 100,000 adult U.S. residents were under correctional supervision.
  • The incarceration rate dropped each year during the last decade, from 960 per 100,000 adult U.S. residents at yearend 2010 to 660 per 100,000 at yearend 2020.

March 31, 2022 in Data on sentencing, Detailed sentencing data, Prisons and prisoners | Permalink | Comments (4)

Wednesday, March 16, 2022

US Sentencing Commission publishes 2021 Annual Report and Sourcebook of Federal Sentencing Statistics

I received news via email today that the US Sentencing Commission has now published its 2021 Annual Report and Sourcebook of Federal Sentencing Statistics. Here are the links and highlights that appeared in the USSC email:

FY21 Fast Facts

The Sourcebook presents information on the 57,287 federal offenders sentenced in FY21 (October 1, 2020 through September 30, 2021)—a sentencing caseload that decreased by more than 7,000 from the previous fiscal year.

  • Drug trafficking, immigration, firearms, and fraud crimes together comprised 83% of the federal sentencing caseload in FY21.  
  • Drug trafficking was the most common federal crime type sentenced, accounting for 31% of the caseload. 
  • Immigration cases accounted for the next largest group (30%) but decreased by more than one-third from the number of those cases in FY20. 
  • Methamphetamine continued to be the most common drug type in the federal system, and a steadily growing portion of the drug caseload (up from 31% of drug cases in FY16 to 48% in FY21).
    • In FY21, Fentanyl moved into the top five drug types in the federal caseload. The Commission has added it to the Drug Offenses section of the Sourcebook
  • Methamphetamine trafficking continued to be the most severely punished federal drug crime (90 months).
  • Two-thirds (67%) of drug offenders were convicted of an offense carrying a mandatory minimum penalty, holding steady from the previous year.
  • 69% of federal offenders were sentenced under the Guidelines Manual (either within range or outside the range for departure reasons in the manual). 

Agency Highlights

The Annual Report presents an overview of the Commission's work in FY21.

  • Beginning in FY21 and continuing into FY22, the Commission has operated with only one voting commissioner, lacking the quorum required to promulgate guideline amendments. The Commission’s other statutory duties are unaffected by the lack of four voting commissioners.
  • The Commission published new findings from its largest recidivism study yet—combining Commission and FBI data to study more than 32,000 federal offenders over an 8-year follow-up period.
    • The Commission has now released reports on firearms, drug trafficking, and violent offenders with more reports forthcoming.
  • The Commission also continued to research specific issues of ongoing congressional concern and deliberation—releasing a report on the emerging problem of fentanyl and fentanyl analogues, and two reports updating its 2012 report to Congress on child pornography offenses.
  • In late September 2021, the Commission released the Judiciary Sentencing INformation (JSIN) tool—an online sentencing data resource developed for judges but made available to the public at large. The platform provides quick and easy online access to sentencing data for similarly-situated defendants, including the types of sentences imposed and average and median sentences.
  • In FY21, the Commission conducted 115 virtual training sessions and more than 13,000 individuals attended live, online, or on-demand prerecorded training sessions—a three-fold increase over the number of trainees in a typical year.

March 16, 2022 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Tuesday, March 15, 2022

New Sentencing Project report details scope of youth confinement

This new report from The Sentencing Project, titled "Too Many Locked Doors" and authored by Josh Rovner, documents the "wide and deep footprint of youth incarceration." Here is the start of its Executive SUmmary:

The United States incarcerates an alarming number of children and adolescents every year.  Disproportionately, they are youth of color.

Given the short- and long-term damages stemming from youth out of home placement, it is vital to understand its true scope. In 2019, there were more than 240,000 instances of a young person detained, committed, or both in the juvenile justice system.  However, youth incarceration is typically measured via a one-day count taken in late October.

This metric vastly understates its footprint: at least 80% of incarcerated youth are excluded from the one-day count.

This under-count is most prevalent for detained youth, all of whom have been arrested but have yet to face a court hearing. The following are examples of the systemic under-representation of detained youth in the one-day count:

• Thirty-one youths charged with drug offenses are detained for each one measured in the one-day count.

• Twenty-five youths charged with public order offenses are detained for each one measured in the one-day count.

• Seventeen youths charged with property offenses are detained for each one measured in the one-day count.

• Eleven youths charged with person offenses are detained for each one measured in the one-day count.

The variances in commitment are smaller but still noteworthy: more than three youth are committed each calendar year for each youth appearing in the one-day count.

The decade-long drop in detention and commitment masks how common detention remains for youth in conflict with the law. Hundreds of thousands of youth are referred to juvenile courts annually; roughly one-quarter of the time, they are detained.  That proportion has crept upward over a decade in which arrests have declined dramatically.

Data on youth detentions and commitment reveal sharp racial and ethnic disparities. Youth of color encounter police more often than their white peers and are disproportionately arrested despite modest differences in behavior that cannot explain the extent of arrest disparities.  Disparities in incarceration start with arrests but grow at each point of contact along the justice system continuum. In roughly one-quarter of delinquency cases throughout the decade, a youth was detained pre-adjudication. When youth of color are arrested, they are more likely to be detained than their white peers.

March 15, 2022 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Scope of Imprisonment | Permalink | Comments (0)

Monday, March 14, 2022

Prison Policy Initiative releases "Mass Incarceration: The Whole Pie 2022"

Wholepie22_twittercard_800x418Many folks like calling March 14 "Pi Day," and for sentencing fans today is especially worth celebrating because the amazing folks at the Prison Policy Initiative have today posted their latest, greatest version of PPI's amazing incarceration "pie" graphic and associated report. "Mass Incarceration: The Whole Pie 2022" provides a spectacular accounting of the particulars of who and how people are incarcerated in the United States.  As I have said in the past, the extraordinary "pies" produced by PPI impart more information in one image than just about any other single resource.  Here is part of the report's introductory text and the concluding discussion:

Can it really be true that most people in jail are legally innocent? How much of mass incarceration is a result of the war on drugs, or the profit motives of private prisons? How has the COVID-19 pandemic changed decisions about how people are punished when they break the law? These essential questions are harder to answer than you might expect. 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. As public support for criminal justice reform continues to build — and as the pandemic raises the stakes higher — 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 justice system;” instead, we have thousands of federal, state, local, and tribal systems. Together, these systems hold almost 2 million people in 1,566 state prisons, 102 federal prisons, 2,850 local jails, 1,510 juvenile correctional facilities, 186 immigration detention facilities, and 82 Indian country jails, as well as in military prisons, civil commitment centers, state psychiatric hospitals, and prisons in the U.S. territories.

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 modern myths to focus attention on the real drivers of mass incarceration and overlooked issues that call for reform....

The United States has the dubious distinction of having the highest incarceration rate in the world. Looking at the big picture of the 1.9 million people locked up in the United States on any given day, we can see that something needs to change. Both policymakers and the public have the responsibility to carefully consider each individual slice of the carceral pie and ask whether legitimate social goals are served by putting each group behind bars, and whether any benefit really outweighs the social and fiscal costs.

Even narrow policy changes, like reforms to bail, can meaningfully reduce our society’s use of incarceration. At the same time, we should be wary of proposed reforms that seem promising but will have only minimal effect, because they simply transfer people from one slice of the correctional “pie” to another or needlessly exclude broad swaths of people. Keeping the big picture in mind is critical if we hope to develop strategies that actually shrink the “whole pie.”

March 14, 2022 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Thursday, March 10, 2022

Highlighting some disparities identified in recent "Dealing in Lives" report on federal life sentences for drug offenses

In this post a few days ago, I spotlighted this terrific new research paper authored by Alex Fraga, who serves as a Senior Research Associate at Ohio State's Drug Enforcement and Policy Center (DEPC).  The paper, titled "Dealing in Lives: Imposition of Federal Life Sentences for Drugs from 1990–2020," is the focal point of this new Filter article titled "Federal Life Sentences for Drugs: Unconscionable and Massively Biased." Here is some of the coverage:

Studying federal life and de facto life sentences for drugs in federal courts from 1990 to 2020, Dr. Fraga found stunningly awful racial disparities.  Federal life sentences are practically reserved for defendants who are Black (62.4 percent) or Hispanic (22 percent).  Crack cocaine was the drug involved in roughly half of federal life sentences, yet the disparities held independent of drug type.

In addition, many people were punished more harshly for wanting to exercise their constitutional rights.  As Fraga writes, “An astonishing 72% percent of those sentenced to life or de facto life for drug trafficking exercised their right to trial.”

When the system is largely a conveyor belt of plea bargains, with over 90 percent of cases never going to trial, “astonishing” is right.  Defendants who demand that prosecutors meet their burden of proof are often hit with harsher charges and sentencing outcomes.... 

Yet another layer of inconsistency and arbitrariness in federal drug sentencing exposed by the report covers is geography-based. Just five districts — three in Florida, one in Virginia and one in South Carolina — accounted for 25 percent of all federal life and de facto life sentences imposed for drug trafficking during the study period.  For context, there are 93 federal court districts in the nation. Each has its own presidentially-appointed US attorney, who enjoys a wide band of discretion on who to charge and with what.

How could this happen? Despite ostensible efforts toward uniformity, federal courthouses in different parts of the country have developed their own local legal cultures. For example, in southern Georgia, there is no public defender office for impoverished people charged with federal crimes; they receive appointed attorneys who are often uninvested and lack expertise in criminal law.  That district also has some of the harshest sentencing outcomes in the country.

I am grateful to see this engagement with some of the data in the new report, and there are so many other interesting findings therein.  As mentioned previously, a number of the paper's key findings (and visuals) can be viewed at this DEPC webpage.

Prior related post:

March 10, 2022 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Offender Characteristics, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (12)

Thursday, February 24, 2022

"Social Trust in Criminal Justice: A Metric"

The title of this post is the title of this notable new paper now available via SSRN authored by Joshua Kleinfeld and Hadar Dancig-Rosenberg. Here is its abstract:

What is the metric by which to measure a well-functioning criminal justice system?  If a modern state is going to measure performance by counting something — and a modern state will always count something — what, in the criminal justice context, should it count?  Remarkably, there is at present no widely accepted metric of success or failure in criminal justice.  Those there are — like arrest rates, conviction rates, and crime rates — are deeply flawed.  And the search for a better metric is complicated by the cacophony of different goals that theorists, policymakers, and the public bring to the criminal justice system, including crime control, racial justice, retributive justice, and social solidarity.

This Article proposes a metric based on the concept of social trust.  The measure of a well- or poorly functioning criminal system is its marginal effects on (1) the level of trust a polity’s members have toward the institutions, officials, laws, and actions that comprise the criminal justice system; (2) the level of trust a polity’s members have, in virtue of the criminal system’s operations, toward government generally (beyond the criminal justice system); and (3) the level of trust a polity’s members have toward one another following incidents of crime and responses to crime.  Social trust, we argue, both speaks to an issue at the philosophical core of crime and punishment and serves as a locus of agreement among the many goals people bring to the criminal justice system.  The concept can thus be a site of overlapping consensus, performing the vital function of enabling liberal societies to make policy despite disagreement about first principles.

February 24, 2022 in Data on sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (1)

Thursday, February 17, 2022

"Criminal Violations"

The title of this post is the title of this notable new article authored by Jacob Schuman and now available via SSRN. Here is its abstract:

Violations of community supervision are major drivers of incarceration.  Four million people are on probation, parole, or supervised release, and one-third of them will eventually be found in violation, sending 350,000 people to prison each year.  To reduce incarceration rates, criminal-justice reformers have called to lower sentences for non-criminal “technical violations” like missed meetings, skipped curfews, etc.

In this Article, I offer the first comprehensive analysis of “criminal violations,” the other half of cases where people violate their supervision by committing new crimes.  Based on an original empirical study of U.S. Sentencing Commission data and an examination of federal caselaw, I make three novel observations.  First, despite the popular focus on technical violations, criminal violations are the primary drivers of punishment via revocation of supervised release, accounting for two-thirds of the total prison time imposed. Second, while technical violations allow the government to punish non-criminal behavior, criminal violations give the government an additional justification for penalizing criminal conduct and an easier alternative to criminal prosecution.  Third, the immigration crime of illegal reentry is the basis for as many as one-third of all felony violations, revealing that supervised release is not just a program of surveillance and support, but also a tool of immigration enforcement.

After describing these observations, I critique the law by arguing that revocation for criminal violations inflicts unfair double punishment and erodes constitutional rights. Revoking supervised release for criminal violations triggers an exception to the ordinary rules of prosecution, which federal law has generalized into a standard practice of government.  When defendants on supervised release commit new crimes, prosecution without revocation is a better and fairer way to punish them.

February 17, 2022 in Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Tuesday, February 15, 2022

New Pew report spotlights "Drug Arrests Stayed High Even as Imprisonment Fell From 2009 to 2019"

Drug arrests Fig-1The quoted part of the title of this post is the title of this awesome new "issue brief" from the folks at Pew.  The full document merits close and repeated review, because there are stories both good and bad about this effective (pre-pandemic) accounting of the war on drugs. Here is part of the overview:

Fifty years ago, President Richard Nixon declared drug abuse “public enemy No. 1,” and Congress passed legislation that sought to expand treatment and research. However, at the same time, intensified enforcement launched what became known as the “War on Drugs.” The harsher penalties led to a 1,216% increase in the state prison population for drug offenses, from 19,000 to 250,000 between 1980 and 2008.  And although prison populations have since declined, the number of people incarcerated for drug offenses remains substantially larger than in 1980 — more than 171,000 in 2019 — and drug misuse and its harms have continued to grow.  Prior research has found that no relationship exists between state drug imprisonment rates and drug use or drug overdose deaths and that, from 2009 to 2019, past-year illicit drug use among Americans 12 or older increased from 15% to nearly 21% and the overdose death rate more than tripled.

To better identify and understand recent changes in and effects of the use of the criminal legal system to address drug problems, The Pew Charitable Trusts analyzed publicly available national data on drug arrests and imprisonment, drug treatment, and harm from drug misuse from 2009 through 2019 — the most recent decade for which data is available. The study found divergent enforcement trends—high rates of arrest but substantially reduced incarceration — coupled with a lack of treatment options and high mortality rates among people with illicit drug dependence.

  • Drug possession arrests held steady at more than a million a year, in stark contrast with a large reduction in overall arrests, which dropped 29%.

  • Only 1 in 13 people who were arrested and had a drug dependency received treatment while in jail or prison.

  • Racial disparities in drug enforcement declined. Arrests of Black people for drug offenses fell by 37%, more than three times the drop among White people.

  • Increased arrests of White individuals for possession of methamphetamine offset declines in marijuana arrests and drove the reduction in racial disparities.

  • The numbers of people admitted to and held in state prisons for drug offenses both fell by about a third, accounting for 61% of the overall reduction in prison populations and 38% of the total decline in admissions.

  • The decline in the number of Black people incarcerated for drug offenses made up 26% of the decrease in prison admissions and 48% of the drop in the prison population.

  • Drug- and alcohol-related mortality rates increased fivefold in prisons and threefold in jails despite the decreases in the number of people in prison for drug offenses.

These trends indicate both an ongoing reliance on the criminal legal system to address drug misuse and that this strategy is costly and ineffective.  Meaningful reductions in total drug arrests and drug-related deaths may not be achieved without shifting to a public health response that prioritizes evidence-based treatment approaches.

February 15, 2022 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Scope of Imprisonment | Permalink | Comments (9)

Declines in 2021 leaves US death row populations at lowest level in three decades

Thanks to this posting at the Death Penalty Information Center, I just saw that the NAACP Legal Defense and Educational Fund has released its Fall 2021 edition of Death Row USA. The full LDF report runs 61 pages, but the DPIC summary provides these notable highlights:

In its Fall 2021 edition of Death Row USA (DRUSA), released February 7, 2022, LDF reported that the number of people on state, federal, or military death rows or facing possible capital resentencing across the United States had fallen to 2,455 as of October 1, 2021, down by 98 from LDF’s Fall 2020 report.  It is the lowest total since January 1991 when 2,412 people were on U.S. death rows or faced jeopardy of being resentenced to death.  Death row, which peaked at 3,717 in the July 2001 DRUSA report, has declined by 34.0% since then.

LDF found that the capital convictions or death sentences of 219 people listed in its report have been reversed, leaving roughly one in eleven cases awaiting retrial or resentencing or with grants of relief still subject to prosecutorial appeal.  Excluding those individuals, the number people in the United States facing active death sentences fell to 2,236 from its from total of 2,326 in October 2020.

LDF reported that 849 people, or 34.6% of those on death row or facing capital resentencing as of October 1, 2021 were in states with moratoria on executions.  Including those in other states whose death sentences have been reversed, LDF calculated that there were 1,034 currently unenforceable death sentences, comprising 41.4% of all active cases in which a death sentence has been imposed.  That left 1,438 death-row prisoners with currently enforceable death sentences.

California’s death row declined to 695 prisoners but remained more than double the size of death row in any other state. It was followed by Florida (333), Texas (198), and Alabama (170).  Nationwide, 42.4% of death-row prisoners were white, 41.2% were Black, 13.6% Latinx, 1.9% Asian, and 1.0% were Native American. Among states with at least 10 prisoners on death row, Texas (72.2%), Louisiana (72.3%), California (67.2%), Nebraska (66.7%), and Pennsylvania (61.5%) were the states with the highest percentage of individuals of color on death row. Two percent of all death-row prisoners are women.

February 15, 2022 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data | Permalink | Comments (2)

Thursday, February 10, 2022

US Sentencing Commission releases big new report on "Recidivism of Federal Violent Offenders Released in 2010"

As I keep noting in recent years, it is has been great to see the US Sentencing Commission continuing to produce a lot of useful data reports even as its policy work is necessarily on hiatus due to a lack of confirmed Commissioners.  The latest example released today is this 116-page new report titled "Recidivism of Federal Violent Offenders Released in 2010."  This USSC webpage provides an overview of the report along with a bunch of "Key Findings," some of which are reprinted here:

Overview

This report is the third in a series continuing the Commission’s research of the recidivism of federal offenders.  It provides an overview of the recidivism of the 13,883 federal violent offenders released from incarceration or sentenced to a term of probation in 2010, combining data regularly collected by the Commission with data compiled from criminal history records from the Federal Bureau of Investigation.  This report provides an overview of recidivism for these offenders and information on key offender and offense characteristics related to recidivism.  This report also compares recidivism outcomes for federal violent offenders released in 2010 to non-violent offenders in the study group....

Key Findings

  • This study demonstrated substantially greater recidivism among violent federal offenders compared to non-violent federal offenders.
    • The recidivism rates of violent and non-violent offenders released in 2005 and 2010 remained unchanged despite two intervening major developments in the federal criminal justice system — the Supreme Court’s decision in Booker and increased use of evidence-based practices in federal supervision.
    • This finding is consistent with other Commission reports demonstrating higher recidivism among violent offenders...
  • Violent offenders recidivated at a higher rate than non-violent offenders.  Over an eight-year follow-up period, nearly two-thirds (63.8%) of violent offenders released in 2010 were rearrested, compared to more than one-third (38.4%) of non-violent offenders.
  • Violent offenders recidivated more quickly than non-violent offenders.  The median time to rearrest was 16 months for violent offenders and 22 months for non-violent offenders.
  • Among offenders who were rearrested, violent offenders were rearrested for a violent offense at a higher rate than non-violent offenders, 38.9 percent compared to 22.0 percent.
    • Assault was the most common type of rearrest for both violent and non-violent offenders, but a larger proportion of violent offenders (24.9%) than non-violent offenders (15.4%) were rearrested for assault.
  • Age at release is strongly correlated with recidivism for both violent and non-violent offenders. Rearrest rates decrease steadily with each age group for both groups of offenders.  However, violent offenders had higher rearrest rates than non-violent offenders in each age group.  Among offenders aged 60 and older, the oldest group of offenders studied, 25.1 percent of violent offenders were rearrested compared to 11.5 percent of non-violent offenders.
  • Criminal History Category (CHC) is strongly correlated with recidivism for both violent and non-violent offenders. Rearrest rates increase steadily with each CHC for both groups of offenders. However, violent offenders had higher rearrest rates than non-violent offenders in every CHC. Analyzed separately, violent instant offenders (59.9%) and violent prior offenders (64.8%) were rearrested at a higher rate than non-violent offenders (38.4%)....
  • The current recidivism findings for violent and non-violent offenders released in 2010 replicate the Commission’s findings for offenders released in 2005. Nearly two-thirds (63.8%) of violent offenders released in 2010 were rearrested, the same rate for violent offenders released in 2005 (63.8%). More than one-third (38.4%) of non-violent offenders released in 2010 were rearrested, a comparable rate to non-violent offenders released in 2005 (39.8%).

February 10, 2022 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Offense Characteristics, Reentry and community supervision | Permalink | Comments (4)

Wednesday, February 02, 2022

"Gender Favoritism Among Criminal Prosecutors"

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

Prosecutors enjoy wide discretion in the decisions they make but are largely unstudied by quantitative empirical scholars. This paper explores gender bias in prosecutorial decision-making.  I find that male and female prosecutors exhibit small and statistically insignificant differences in their treatment of defendants overall but demonstrate relative leniency towards defendants of their own gender.  Such favoritism at charging translates into a sentencing gap of roughly five months of incarceration for defendants who are paired with an own-gender prosecutor versus an opposite-gender prosecutor, which represents a roughly eight percent reduction in sentence length at the mean.  The estimates do not appear to be driven by differences in case assignments for male and female prosecutors.

February 2, 2022 in Data on sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (12)

Monday, December 20, 2021

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

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

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

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

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

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

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

Sunday, December 19, 2021

Vera Institute updates its Incarceration Trends website

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

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

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

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

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

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

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

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

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

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

  • data on regional jail systems that serve multiple counties.

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

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

Thursday, December 16, 2021

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, December 15, 2021

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

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

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

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

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

Highlights

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

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

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

Friday, December 10, 2021

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

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

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

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

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

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

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

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

Wednesday, December 08, 2021

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

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

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

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

A few prior recent related post:

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

Wednesday, December 01, 2021

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

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

Overview

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

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

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

Key Findings

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

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

Tuesday, November 30, 2021

ACLU sues Biden Administration for data on CARES home confinement cohort

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

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

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

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

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

The full complaint is available here

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

Monday, November 29, 2021

"The population prevalence of solitary confinement"

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

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

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

Tuesday, November 23, 2021

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

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

Description

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

Highlights

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

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

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

Sunday, November 21, 2021

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

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

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

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

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

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

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

Tuesday, November 16, 2021

"The Secret Success of Federal Probationers"

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

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

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

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

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

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

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

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

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

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

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

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

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

Sunday, November 14, 2021

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

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

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

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

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

Prior related JSIN posts:

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

Friday, November 12, 2021

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, November 10, 2021

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

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

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

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

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

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

Thursday, October 28, 2021

"Federal Offenders Who Served in the Armed Forces"

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

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

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

Key Findings

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday, October 25, 2021

"Open Prosecution"

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

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

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

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

Friday, October 15, 2021

"Sentencing Commission Data Tool Is Deeply Flawed"

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

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

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

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

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

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

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

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

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

Prior related JSIN posts:

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

Wednesday, October 13, 2021

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

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

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

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

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

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

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

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

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

Some of many prior related posts:

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

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

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

Prior recent related post:

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

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

Tuesday, October 12, 2021

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

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

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

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

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

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

Tuesday, October 05, 2021

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

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

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

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

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

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

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

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

Thursday, September 30, 2021

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, September 28, 2021

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

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

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

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

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

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

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

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

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

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

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

Thursday, September 23, 2021

Notable new report spotlights onerous nature of electronic monitoring in US

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

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

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

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

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

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

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

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

Here is the introduction of the 54-page report:

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

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

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

Monday, September 20, 2021

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

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

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

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

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

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

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

Thursday, September 16, 2021

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

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

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

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

Prior recent related post:

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

Tuesday, September 07, 2021

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

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

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

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