Friday, October 15, 2021

"Sentencing Commission Data Tool Is Deeply Flawed"

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

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

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

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

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

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

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

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

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

Prior related JSIN posts:

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

Wednesday, October 13, 2021

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

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

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

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

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

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

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

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

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

Some of many prior related posts:

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

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

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

Prior recent related post:

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

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

Tuesday, October 12, 2021

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

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

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

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

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

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

Tuesday, October 05, 2021

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

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

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

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

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

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

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

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

Thursday, September 30, 2021

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, September 28, 2021

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

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

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

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

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

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

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

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

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

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

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

Thursday, September 23, 2021

Notable new report spotlights onerous nature of electronic monitoring in US

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

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

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

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

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

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

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

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

Here is the introduction of the 54-page report:

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

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

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

Monday, September 20, 2021

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

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

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

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

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

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

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

Thursday, September 16, 2021

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

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

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

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

Prior recent related post:

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

Tuesday, September 07, 2021

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, September 01, 2021

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

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

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

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

Monday, August 30, 2021

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

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

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

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

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

View the national dashboard

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

Recent related posts:

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

Wednesday, August 18, 2021

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

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

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

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

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

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

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

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

Prior related posts:

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

Tuesday, August 17, 2021

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

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

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

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

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

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

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

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

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

Monday, August 09, 2021

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

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

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

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

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

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

I’ll take these in turn.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

* * *

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

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

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

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

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

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

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

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

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

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

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

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

A few prior related posts:

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

Friday, July 30, 2021

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

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

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

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

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

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

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

Sunday, July 25, 2021

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

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

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

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

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

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

A few of many prior related posts:

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

Thursday, July 22, 2021

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

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

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

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

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

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

Tuesday, July 20, 2021

Helpful review of some modern US capital punishment realities

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

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

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

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

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

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

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

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

Monday, July 19, 2021

New UNODC report details interesting global realities and trends in incarceration

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

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

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

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

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

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

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

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

Saturday, July 17, 2021

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

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

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

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

Thursday, July 15, 2021

New fact sheets from Sentencing Project on disparities in youth incarceration

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

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

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

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

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

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

Thursday, July 08, 2021

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

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

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

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

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

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

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

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

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

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

Tuesday, June 29, 2021

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

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

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

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

Monday, June 28, 2021

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

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

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

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

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

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

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

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

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

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

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

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

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

Friday, June 18, 2021

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

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

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

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

Thursday, June 17, 2021

Local report on federal compassionate release in Rhode Island raises questions about US Sentencing Commission data

A helpful reader made sure I saw this new reporting about federal compassionate release practices from a local source in the Ocean State under the headline "Federal inmates seeking early release in RI approved 40% of the time in 2020."  Here are excerpts (with a little emphasis added):

More than one of every three federal inmates sentenced in Rhode Island who sought compassionate release last year was let go early from prison, according to data from the U.S. District Court in Rhode Island.

A new report from the U.S. Sentencing Commission found Rhode Island federal judges were second only to jurists in Oregon for districts granting compassionate release requests during 2020.  While data directly from federal court in Providence shows the Sentencing Commission undercounted denials during that time period, U.S. District Judge William Smith said he wasn’t surprised to learn Rhode Island was more likely than other districts to grant early release.  “I think we’ve been really, really aggressive and careful about compassionate release petitions that have come before us,” Smith said. “We’ve paid a lot of attention to them and I am really proud of the way we’ve handled them.”

A Target 12 review of data provided by the federal court found 78 inmates who were sentenced in Rhode Island requested an early release in 2020.  Of those requests, 45 were denied, 30 were granted, and three were withdrawn.

Smith said weighing whether they should grant an early release is a balancing test between the risk to an inmate, and a risk to the community.  “There were various points in the pandemic when some federal prisons were literally on fire with the virus,” Smith said.

He added that the judges were keenly aware that a denial of an early release could be tantamount to a death sentence at the height of the pandemic. “There were times when you would go to bed at night hoping you wouldn’t wake up in the morning to find someone you had under consideration for compassionate release was now on a ventilator in a hospital,” he said. “That was going on all across the country.”

Despite those concerns, the answer was still “no” more often than “yes.” “If [an inmate] is in for a very long period of time for a crime of violence – let’s say – that is much more difficult and probably don’t grant that one,” Smith said.

That was the case with inmates Gregory Floyd and Harry Burdick, who were convicted in the horrific June 2000 execution-style slaying of Jason Burgeson and Amy Scute at a golf course in Johnston. The couple was carjacked after leaving a club in Providence before being gunned down. Both Floyd and Burdick had their compassionate release requests denied.

A Target 12 review of the cases that were granted an early release found none of the inmates were serving time for crimes of violence.  The vast majority of the convictions – 19 of 30 – were primarily drugs cases, five were financial crime convictions, two were firearm possession cases, and one each of art theft, escape from prison, bank robbery, and a conviction of “transportation with intent to prostitute.”...

Thousands of inmates across the country [filed CR motions] as COVID-19 was ripping through congregate care facilities, including prisons. According to the U.S. Federal Bureau of Prisons, more than 44,000 inmates contracted the virus and 238 of them died. Four BOP staff members also succumbed to the disease. “I am really proud to say as far as I know, not a single inmate from Rhode Island died of coronavirus in prison,” Smith said, adding just one inmate who was released committed a violation that sent them back to prison.

With the pandemic seemingly receding, 2021 has been a different story. Of the 23 inmates who have asked for compassionate release since January, just one has been granted. “The medical issues are not as chronic, not as severe, the prisons are in a much better shape in terms of controlling the virus,” Smith said. “Then the third piece is the vaccination rate has been rising.”...

But for those who refused to get the vaccine, especially out of personal preference, Smith said that wouldn’t likely help any of their future arguments for compassionate release on the basis of being at heightened risk of contracting the virus. “I think it is on them,” he said.

I lamented last week in this post that the US Sentencing Commission's data run on CR motions in 2020 provided no information about the persons in prison or the crimes that were resulting in grants and denials of sentence reductions.  It is thus quite valuable to see this local report detail that nearly two-thirds of persons getting sentence reductions were in drug cases and apparently none involved crime of violence.  It will be interesting to see if this pattern holds true if and when we get more details from more districts.

But while pleased for this additional data from Rhode Island, I am troubled to see that the US Sentencing Commission may be (drastically?) under-reporting denials of relief.  I do not want to assume anything hinky is going on, because there may be valid data collection question and challenges here explaining the discrepancy between the USSC data report and the data reported by the local news source.  For example, if a defendant is initially denied a motion for a sentence reduction, perhaps on procedural grounds, and then a month later prevails on such a motion, is this is coded as just one grant or is it one denial and one grant?

For all sort of reasons, I think it will prove very important to try to be very careful assembling accurate data here on all sorts of sentence reduction particulars.  The US Sentencing Commission, if and when it ever has Commissioners, will at some point need to modify various policy statements about these matters, and good data will be critical for the USSC and others advising the USSC to do their work in sound ways.

A few of many prior related posts:

June 17, 2021 in Data on sentencing, Detailed sentencing data, FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, June 16, 2021

Massive new RAND report provides "Statistical Analysis of Presidential Pardons"

I received an email yesterday from the Bureau of Justice Statistics with a link to this 220+ page report produced by RAND Corporation titled "Statistical Analysis of Presidential Pardons."  The report is so big and intricate that the introduction runs 40 pages with lots of complicated data.  And, disappointingly, it seems the detailed statistical analysis includes data only running through April 2012 (through most of Prez Obama's first term) and so does not include the flush of pardons and commutations granted over the last decade. Still, the report provides a lot of coverage that should be of great interest to those who follow the use of federal clemency powers and possibilities.  Here is a snippet from Chapter 1 of the report that details its coverage:

Chapter 2 presents a model of the deliberative process employed by OPA in evaluating incoming pardon petitions.  Chapter 3 provides descriptive statistics on measures collected during our abstraction of sample petition files.  Chapter 4 reports on the findings from our statistical analysis intended to identify petitioner and petition characteristics most strongly associated with grants of pardon — with a special emphasis on the effects of race and ethnicity on final actions — and also describes the assumptions and techniques utilized for this work.  In Chapter 5 we discuss what these descriptions and findings may reveal about OPA’s pardon petition processing.

June 16, 2021 in Clemency and Pardons, Data on sentencing, Detailed sentencing data, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, June 14, 2021

More good coverage of the not-so-good (but still not-so-bad) realities of federal compassionate release realities

As noted here, last Thursday the US Sentencing Commission released some fascinating (and bare bones) data on compassionate release motions in 2020 in this short data report.  In this post, I flagged coverage by the Marshall Project lamenting that the Bureau of Prisons approved so very few compassionate release applications.  I have since seen three more press piece noting ugly stories in the data:

I am quite pleased to see a a series of articles based on the new USSC data that rightly assail the BOP for being so adverse to supporting sentence reduction 3582(c)(1)(a) motions and that highlights broad variations in how compassionate release is functioning in different federal judicial districts.  But, those persistent problems notwithstanding, I hope nobody loses sight of what the FIRST STEP Act accomplished by allowing federal courts to directly reduce sentences without awaiting a motion by the BOP.  As of this writing, BOP reports on this data page that nearly 3500 federal defendants have now received "Compassionate Releases / Reduction in Sentences" since the FIRST STEP Act became law. (For point of reference, that is more than the total number of prisoners in New Hampshire and Vermont combined.)  

I am eager for more details from the US Sentencing Commission about who is and is not receiving sentence reductions because there are surely some uneven (and likely ugly) patterns to be found in all the data.  But the one pattern that is clear and should be appreciated is that judges are regularly using their new powers to reduce sentences that are excessive.  As I suggested in this recent post, new legal rulings and all sorts of other developments can and should continue to provide sound reasons for federal judges to keep reconsidering extreme past federal sentences.  I hope they continue to do so, and I hope we do not lose sight of a beautiful compassionate release forest even when we notice a some ugly trees.

A few of many prior related posts:

June 14, 2021 in Data on sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, June 10, 2021

How many federal prisoners might now be serving illegal sentences after Borden?

I will be blogging in a future post about just how current federal prisoners serving Armed Career Criminal Act sentences might seek relief from now-illegal long sentences based on the Supreme Court's important ruling in Borden v. US, No. 19–5410 (S. Ct. June 10, 2021) (available here), limiting applicable ACCA precedents.  (Spoiler: they should not forget "compassionate release" as a means of seeking relief.)  But my inquiry for this post is the preliminary question in the title of this post: can we figure out how many federal prisoners might now be serving illegal sentences after Borden because they were sentenced on the basis of a reckless predicate ACCA offense?

Figuring out a precise answer to this question is very intricate, though it is aided greatly by this recent US Sentencing Commission report detailing in Figure 1 how many ACCA sentences have been handed down over the last decade.  Based on that data and with a bit of extrapolation, I think it possible that there could be as many as 10,000 persons (though likely somewhat fewer) in federal prison now serving ACCA sentences.  [UPDATE with better numbers: an astute commentor notes that the USSC report actually has a Figure 7 reporting that a "total of 3,572 offenders in
Federal Bureau of Prisons (BOP) custody as of June 27, 2020 were sentenced pursuant to the ACCA."  A year later, I would guess that number is about the same.] However, I suspect the vast majority of those prisoners would not have clear or even viable Borden claims.  In fact, I would be tempted to guest that less than 1 out of every 10 ACCA prisoners has a strong Borden-based claim for undoing his sentence. 

But I am truly making a wild guess here, and I am eager to hear from folks in the field about whether they agree that only hundred of sentences may be potentially disrupted by Borden or if in fact it could end up being thousands.  Whatever the exact number, as I will explain in a future post, every ACCA defendant with a viable Borden claim should be thankful for the FIRST STEP Act making "compassionate release" motions available o bring directly to court.  But more on that will come in a future post.

June 10, 2021 in Data on sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

US Sentencing Commission releases fascinating (and bare bones) "Compassionate Release Data Report"

I just received an email from the US Sentencing Commission with an alert about new data reports from the USSC.  Any new data from the USSC gets me excited, and I got even more jazzed upon seeing the heading "Compassionate Release Data" followed by this text in the email:

With the advent of the COVID-19 pandemic, the courts received thousands of compassionate release motions. This report provides an analysis of those compassionate release motions decided through December 31, 2020 for which court documentation was received, coded, and edited at the U.S. Sentencing Commission by May 27, 2021.

Data Overview

Through December 31, 2020, the Commission received the following information from the courts:

  • 2,549 offenders were granted compassionate release. This represents 21% of compassionate release motions.
  • 9,589 offenders were denied compassionate release. This represents 79% of compassionate release motions.
  • 96% of granted motions were made by the defendant.

Somewhat disappointingly, the full report linked here provides precious little additional data beyond circuit and district breakdowns of these motions and their dispositions. I would be especially interested in seeing a lot more offender demographic information (e.g., race, gender, age of movant) and sentence modification information (e.g., primary sentenced offense and amount of sentence reduction).  But I am excited to learn that the USSC data staff is keeping track of these matters and seemingly planning to regularly report of what it is tracking.   

June 10, 2021 in Data on sentencing, Detailed sentencing data, FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, June 09, 2021

A different assessment of "America’s Dangerous Obsession" with innocence on death row

Thirteen years ago, in an article titled Reorienting Progressive Perspectives for Twenty-First Century Punishment Realities, 3 Harv. L.& Pol'y Rev. Online (2008), I explained the basis for my concern that "progressive criminal justice reform efforts concerning innocence issues, abolition of the death penalty, and sentencing disparities may contribute to, and even exacerbate, the forces that have helped propel modern mass incarceration."  That old article feels fresh again upon seeing this new lengthy Atlantic piece by Elizabeth Bruenig titled "America’s Dangerous Obsession With Innocence."  Here are a few excerpts from the piece:

It goes without saying that the state should not kill innocent people, and that it is a good thing to save the innocent from a fate no one thinks they deserve.  I believe it is a good thing, too, to save the guilty from a fate some would argue they have earned.  That the one stance may occlude the other reflects the death penalty’s bizarre moral universe....

According to the national Registry of Exonerations, more than 1,000 people have been exonerated for murder in the United States since 1989.  Many of these cases were initially decided when forensic techniques and technologies were less advanced and less accurate than they are now.  People with plausible innocence claims have, in some instances, been able to bring new technology to bear on preserved evidence to great effect.  That phenomenon spurred the innocence movement in capital-punishment advocacy as we know it.

“Around the year 2000, there’s this ferment all over the place to create innocence programs,” David R. Dow, the founder and director of one such program, the Texas Innocence Network, told me. “They’re kind of sexy. Funders want to fund them. People are beginning to pay attention to the fact that there are innocent people in prison.”

Marissa Bluestine, the assistant director of the Quattrone Center for the Fair Administration of Justice at the University of Pennsylvania Carey Law School, told me that more than 50 innocence organizations now operate in the United States.  They differ in size, scope, region, and budget, but they “all have the same goals: They work to identify people who did not commit the underlying crime they were convicted of and they try to exonerate them.”

That’s well and good, except that the number of innocence claims that can be confidently settled in labs is not infinite, and may in fact be dwindling. Dow, who teaches law at the University of Houston, has represented more than 100 clients on death row in his 30 years of practice; out of that number, he counts only eight as credibly innocent. He doesn’t suspect that his future will hold many more....

More generally, a 2014 published by the National Academy of Sciences found that if all of American death-row inmates were to remain condemned indefinitely, approximately 4.1 percent would eventually be exonerated — a proxy for the share of innocent inmates. That’s an admittedly conservative estimate. But even if the number of innocent inmates were doubled, the number of guilty ones would still make up more than 90 percent of death row....

To put it succinctly: Innocence cases indicate that some capital sentences are unfair, but decades of studies on death-qualified juries; race, gender, and immigration-status bias among jurors; law enforcement and prosecutorial misconduct; weak forensic science and poor representation at trial all suggest that a fair capital sentence is virtually impossible.  Ultimately the fight should be waged not against particular injustices, but against the unjust system itself.

Especially for those inclined toward capital abolition, I fully understand the logic of speculating that there many not be that many innocent persons left on death row and so even more fight needs to be directed toward the guilty on death row.  However, the fight against against all of death row has been pretty robust and pretty effective over the last 20 years (surely aided by the innocence movement).  Nationwide, since 2000, death row has shrunk about 30%, the number of executions has shrunk about 75%, and the number of death sentences imposed has shrunk 85%.

But, shifting our focus from formal death sentences to what are sometimes called "death in prison" sentences, the modern story changes dramatically.  As detailed in a recent Sentencing Project report (discussed here), the "number of people serving life without parole — the most extreme type of life sentence — is higher than ever before, a 66% increase since ... 2003."   Moreover, while there are currently around 2500 people on death row who have all been convicted of capital murder, there are now roughly 4000 people "serving life sentences [who] have been convicted for a drug-related offense."  And well over 200,000 persons are now "serving a life sentence, either life without parole (LWOP), life with parole (LWP) or virtual life (50 years or more)."  

If we keep the focus on innocence, and use the 4% number discussed in this Atlantic article and extrapolate, these data mean we could have 100 innocent persons on death row, but also 160 innocent persons serving life for a drug-related offense and over 8000 innocent persons serving LWOP or LWP or virtual life.  If there are lots of innocent groups and not a lot of "good" capital client, there would seem to be no shortage of innocent lifers needing help.  (And, on the data, I am always inclined to speculate that there are now an even larger number of innocent persons serving life than death because capital cases historically get more scrutiny.)

That all said, I obviously share this article's sentiment that guilty persons ought not endure unfair sentences and its advocacy for assailing "the unjust system itself."  However, the capital punishment system, for all its persistent flaws, still strikes me as somewhat less unjust than so many other parts of our sentencing system.  There are no mandatory death sentences, jurors play a central role in every death sentence, and state and federal appellate judges often actively review every death sentence.  There are nearly 100 people serving some type of life sentence for every person serving a death sentence in large part because life sentences are imposed so much more easily as subject to so much less scrutiny. 

Put simply, and I have said before, I worry it is a continued obsession with the death penalty, and not with innocence, that may be problematic in various ways.  But since that very obsession is largely what accounts for capital punishment's modern decline, I am disinclined to be too critical of capital obsessives.

June 9, 2021 in Data on sentencing, Death Penalty Reforms, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (3)

Tuesday, June 08, 2021

Prison Policy Initiative highlights data showing "State prisons are increasingly deadly places"

Prison Policy Initiative published today this new report (with helpful charts and data visuals) under the title "New data: State prisons are increasingly deadly places." The subtitle of this report captures the essence of the data discussed in the report: "New data from the Bureau of Justice Statistics shows that state prisons are seeing alarming rises in suicide, homicide, and drug and alcohol-related deaths." Here are some excerpts from the start of the report (with links from original):

The latest data from the Bureau of Justice Statistics (BJS) on mortality in state and federal prisons is a reminder that prisons are in fact “death-making institutions,” in the words of activist Mariame Kaba.  The new data is from 2018, not 2020, thanks to ongoing delays in publication, and while it would be nice to see how COVID-19 may have impacted deaths (beyond the obvious), the report indicates that prisons are becoming increasingly dangerous — a finding that should not be ignored.  The new numbers show some of the same trends we’ve seen before — that thousands die in custody, largely from a major or unnamed illness — but also reveal that an increasing share of deaths are from discrete unnatural causes, like suicide, homicide, and drug and alcohol intoxication....

Deaths in jail receive considerable attention in popular news, and here on our website — which they should, given the deplorable conditions that lead to tragedy among primarily unconvicted people.  State prisons, on the other hand, are regarded as more stable places, where life is slightly more predictable for already-sentenced people.  Why, then, are suicides up 22 percent from the previous mortality report, just two years prior?  Why are deaths by drug and alcohol intoxication up a staggering 139 percent from the previous mortality report, just two years prior?

The answer isn’t just because there are more incarcerated people.  The very slight net change in the state prison population since 2001 pales in comparison to the increase in overall deaths occurring in these facilities. (Prison populations have actually decreased since peaking in 2009, but they’re still larger in 2018 compared to 2001.)  Prisons have been, and continue to be, dangerous places, exposing incarcerated people to unbearable physical and mental conditions.  State prison systems must greatly improve medical and mental healthcare, address the relationship between correctional officers and the health of their populations, and work with parole boards to accelerate release processes.  Then, maybe, a state prison sentence would not become a death sentence for so many....

In 2018, state prisons reported 4,135 deaths (not including the 25 people executed in state prisons); this is the highest number on record since BJS began collecting mortality data in 2001.  Between 2016 and 2018, the prison mortality rate jumped from 303 to a record 344 per 100,000 people, a shameful superlative.  It may seem like a foregone conclusion that more people, serving decades or lifetimes, will die in prison.  But for at least 935 people, a sentence for a nonviolent property, drug, or public order offense became a death sentence in 2018.

June 8, 2021 in Data on sentencing, Prisons and prisoners | Permalink | Comments (0)

Bureau of Justice Statistics releases "Capital Punishment, 2019 – Statistical Tables"

This morning the Justice Department's Bureau of Justice Statistics released this new report with data on the administration of capital punishment in the United States through the end of 2019. As I have noted before, though BJS sometimes provides the best available 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.  In any event, this new BJS report still provides notable and clear statistical snapshots about the death penalty, and the document sets out these initial "highlights":

June 8, 2021 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data, Offender Characteristics | Permalink | Comments (0)

Monday, June 07, 2021

Vera Institute reports on "People in Jail and Prison in Spring 2021" and finds US total below 1.8 million

The Vera Institute of Justice is continuing to do terrific work on the challenging task of collecting (close-to-real-time) data on the number of people in state and federal prisons and jails.  Vera is now regularly reporting much more timely information on incarceration than the Bureau of Justice Statistics, which often releases data that lags a full year or more behind.  Impressively, and as reported in this post, Vera produced a great report titled "People in Jail and Prison in 2020" in January, and now it already produced this updated report titled "People in Jail and Prison in Spring 2021" with the latest nationwide prison and jail population headcounts. Here is part of the start of the report (with a few sentences I have emphasized):

When the COVID-19 pandemic was first detected in the United States, it was clear that the virus would cause widespread suffering and death among incarcerated people. Advocates were quick to call for prison and jail releases. However, a little more than a year later, decarceration appears to have stalled.  After an unprecedented 14 percent drop in incarceration in the first half of 2020 — from 2.1 million people to 1.8 million — incarceration declined only slightly from fall 2020 to spring 2021.  Generally, states that started 2020 with higher incarceration rates made fewer efforts to reduce incarceration through spring 2021. This pattern speaks to the political, economic, and social entrenchment of mass incarceration.

At the federal level, the number of people in civil custody for U.S. Immigration and Customs Enforcement (ICE) is less than one-third of the 2019 population, while the number of people detained for the U.S. Marshals Service (USMS) facing federal criminal charges reached an all-time high.

Jail populations in rural counties dropped by 27 percent from 2019 through March 2021, the most of any region.  The historic drop in the number of people incarcerated was neither substantial nor sustained enough to be an adequate response to the pandemic, and incarceration in the United States remains a global aberration.

Recent evidence from the Bureau of Justice Statistics also shows that racial inequity worsened as jail populations declined through June 2020.  Vera Institute of Justice (Vera) researchers collected data on the number of people incarcerated throughout 2020 and into early 2021 to provide timely information about how incarceration is changing in the United States during the COVID-19 pandemic.  Vera researchers estimated the incarcerated population using a sample of approximately 1,600 jail jurisdictions, 50 states, and the Federal Bureau of Prisons, the USMS, and ICE.

I find all this data fascinating, and I am actually encouraged that prison populations as reported by Vera is now below 1.2 million, which is the lowest it has been in over 25 years (and probably the lowest per capital in more than three decades).  This Vera report is clearly eager to stress that incarceration is still "mass" in the US, but I am still eager to note that we are still generally trending in the right direction.  Whether that will hold as we get closer to getting past COVID, as as murders and gun assaults are spiking, is the story I will be watching closely in the months and years ahead.

June 7, 2021 in Data on sentencing, Detailed sentencing data, Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Tuesday, June 01, 2021

Arnold Ventures releases detailed reports from multi-year community initiatives on Data-Driven Justice

Via this new press release, today "three pilot sites, Arnold Ventures, and the National Association of Counties publish findings and recommendations from a multi-year initiative aimed at using data and community coordination to better align resources to respond to people with complex health and social needs." Here is more from the release:

Arnold Ventures is proud to release the final reports from Data-Driven Justice (DDJ). These documents include a DDJ Insights brief that provides an overview of the pilot initiative and recommendations to policymakers, and an updated DDJ Playbook that provides detailed implementation guidance — a suite of materials that will help communities, both in the DDJ network and across the country, better respond to their most vulnerable residents. The three DDJ pilot test sites — Middlesex County, Massachusetts, Johnson County, Iowa and the City of Long Beach, California — are also releasing their final reports.

DDJ is a project of the National Association of Counties (NACo) and AV that aims to help local jurisdictions use data to better align resources to respond to people with complex health and social needs, particularly those who are frequent utilizers of justice, health, and human services systems....

These reports are key for practitioners and stakeholders charged with introducing DDJ in their own communities to gain insights into the details and processes behind implementation.  They will be especially helpful in demonstrating how DDJ can improve outcomes for frequent utilizers in communities starting with little to no capacity to share, integrate, and analyze data.

The lessons from the three pilot sites are incorporated into two overarching documents: the Insights Report, by AV, and a Playbook, by AV and NACo.

The Insights report presents an overview of the DDJ Pilot Site Initiative.  It reflects on the successes and challenges of the pilot initiative and provides recommendations for policymakers who seek to sustain and scale similar efforts. It is intended for use by the DDJ Network communities, funders, and policymakers interested in sustaining and scaling similar efforts to the pilot initiative.

The DDJ Playbook outlines step-by-step how communities and governments can use data and coordinate across criminal justice, behavioral health, and service providers to better align resources to respond to people with complex health and social needs for communities, and apply these lessons to community-specific contexts.

It can be used to inform DDJ Network communities and communities nationwide, provide recommendations for policymakers and funders, provide key insights into data analysis and integration, and further resources to explore and learn about how to improve outcomes for frequent utilizers through data integration and analysis.

June 1, 2021 in Data on sentencing, Detailed sentencing data, Offender Characteristics | Permalink | Comments (0)

Tuesday, May 25, 2021

Latest Federal Sentencing Reporter issue explores data and sentencing from many perspectives

M_fsr.2021.33.4.coverI am so very pleased to report on that the latest issue of the Federal Sentencing Reporter is now available online here.  This issue is titled "Making Sense of Sentencing Data" and it has a number of terrific articles from an array of authors examining sentencing data issues from a number of perspectives.  I highly encourage everyone to check out the full issue, and here is a list of the original articles in this FSR issue:

Deciphering Data by Steven L. Chanenson & Douglas A. Berman

Mapping The Modern Sentencing Data Landscape From the Bird’s Eye: The Sixth Circuit’s Efforts to Breathe Life into Substantive Reasonableness Review by Xiao Wang

Harnessing the Power of Data: The Role of Sentencing Commissions in the Information Age by Mark H. Bergstrom, Brett A. Miller & Jordan T. Zvonkovich

The Ohio Data Story in Three Part: The Setup, the Confrontation, and the Resolution by Sara Andrews

The Relationship of Judicial and Prosecutorial Elections to the Availability of Sentencing Data in the United States by Niki Hotchkiss

Anticipating the Judicial Response to Ohio’s Proposed Statewide Sentencing Database by Scott A. Anderson

Here Come the Judges: A Judicial Response to Anticipated Concerns over a Statewide Criminal Sentencing Database—Aligning Algorithmic Risk Assessments with Criminal Justice Values by Justice Michael P. Donnelly, Judge Gene A. Zmuda & Judge Pierre H. Bergeron

Under a Microscope? Show Them the Data by Judge Jeffrey L. Reed

Overview of State Sentencing Commissions’ Drug Data Reporting Practices by Benjamin L. Chanenson

Why and How We Need to Fill Criminal Justice Data Gaps by Arthur Rizer & Dan King

Good Data, Good Law by John Tilley, Serena Chang & Richard J. Peay

Using Data to Achieve Justice Reform by Ashley Nellis

Seeking Racial Justice Through Data in 2021 and Beyond by Melba V. Pearson

COVID-19 Vaccine Refusal and Related Factors: Preliminary Findings from a System-Wide Survey of Correctional Staff by Jordan M. Hyatt, Valerio Baćak & Erin M. Kerrison

Juveniles Are Not So Different: The Punishment of Juveniles and Adults at the Crossroads by Mugambi Jouet

May 25, 2021 in Data on sentencing, Recommended reading | Permalink | Comments (0)

Wednesday, May 19, 2021

US Sentencing Commission releases lots of notable new data and "Quick Facts" reports

I was pleased to receive an email from the US Sentencing Commission today titled "What's New in Federal Sentencing?".  This email provided links and brief highlights of a lot of new items and data just posted to the USSC's website.  Here is a sampling from the email:

NEW First Step Act Data

The U.S. Sentencing Commission published updated data on sentence reductions pursuant to Section 404 of the First Step Act of 2018. Under Section 404, defendants sentenced before the Fair Sentencing Act of 2010 are eligible for a retroactive sentence reduction. 

Data Highlights

Through September 30, 2020, the Commission received the following information from the courts: 

  • 3,705 offenders were granted a sentence reduction under Section 404.
  • 65% were assigned to the highest Criminal History Category (VI). 
    • 56% were Career Offenders.
  • 45% received a weapon-related sentencing enhancement.
  • Offenders received an average decrease of 6 years in their sentence. 
    • The original average sentence was 274 months.
    • The new average sentence was 202 months.
  • 87% of granted motions were made by the defendant, 9% by the attorney for the government, and 4% by the court.

Quick Facts 

The Commission continues to update QuickFacts with new data. Recently updated QuickFacts include:

QuickFacts publications give readers basic facts about a single area of federal crime in an easy-to-read, two-page format. The Commission releases new QuickFacts periodically.

May 19, 2021 in Data on sentencing, Detailed sentencing data, Who Sentences | Permalink | Comments (3)

Sunday, May 16, 2021

More details on "Justice Counts," a notable (and needed) criminal justice data collection effort

Justice-Counts-Powerpoint2-scaled-500x500-c-defaultI flagged in this post a few weeks ago the great online panel event hosted by the Drug Enforcement and Policy Center, in collaboration with National Association of Sentencing Commissions, titled "Justice Counts: Using Data to Inform Policy and Bolster Public Safety."  I am pleased to be able to now report that the video and transcript of this event are now available at this DEPC webpage, and the discussion has me quite excited for the Justice Counts data collection efforts that, as this website explains, aspires to provide "public, aggregate criminal justice data, which will provide policymakers in every state with timely information about their criminal justice systems, existing gaps in data collection, and opportunities to do better." 

Helpfully, the folks at ASU Crime and Justice News covered this event and provided an effective written summary of the discussion at this link.  Here are excerpts of this accounting of efforts to account for justice:

Criminal justice policy makers long have been plagued by a lack of good data on how the justice system operates, from arrests to imprisonments. In an effort to fill many of the gaps, the Council of State Governments Justice Center (CSG) has launched a project called Justice Counts that will provide state-by-state numbers on important parts of the justice process.  A website under development for the last year is expected in June to begin displaying numbers from state corrections systems, including counts of prisoners and people on probation and parole. 

In the past, such national data has been available on a consistent basis from the U.S. Bureau of Justice Statistics, which collects it from the states but often publishes it a year or more later, making it immediately out of date....  The new corrections data to be published should be timely after a year in which there have been more shifts than usual in prison and jail populations during the coronavirus pandemic, with many states and localities freeing inmates in advance of their expected release dates.

CSG staffers gave a preview of the new site on Tuesday to a webinar sponsored by the National Association of Sentencing Commissions and the Drug Enforcement and Policy Center at The Ohio State University. 

All states were asked to provide data to the central site. It is not yet available on a uniform basis because states compile it at different intervals, whether daily, weekly or monthly.

As of now, CSG has current prison population data from 36 states and numbers on various aspects of corrections, such as the number of state prisoners sent by courts or behind bars because they violated parole conditions, from varying numbers of states, ranging from seven in one category to 19 in another.  Eventually, the website will feature metrics such as the cost of corrections systems and whether they are achieving their goals.

Some recent related posts:

May 16, 2021 in Data on sentencing, Detailed sentencing data, Recommended reading, Who Sentences | Permalink | Comments (0)

Thursday, May 13, 2021

"Sentence Length and Recidivism: A Review of the Research"

The title of this post is the title of this notable new working paper authored by Elizabeth Berger and Kent Scheidegger of the Criminal Justice Legal Foundation.  Here is the paper's abstract:

In response to increasing concerns about jail and prison overcrowding, many officials and legislatures across the U.S. have undertaken different efforts aimed at reducing the prison population, such as reduced sentence lengths and early release of prisoners.  Thus, there is currently a high degree of public interest regarding how these changes in policy might affect recidivism rates of released offenders.  When considering the research on the relationship between incarceration and recidivism, many studies compare custodial with non-custodial sentences on recidivism, while fewer examine the impact of varying incarceration lengths on recidivism.  This article provides a review of the research on the latter.

While some findings suggest that longer sentences may provide additional deterrent benefit in the aggregate, this effect is not always consistent or strong.  In addition, many of the studies had null effects, while none of the studies suggested a strong aggregate-level criminogenic effect.  Overall, the literature on the impact of incarceration on recidivism is admittedly limited by important methodological considerations, resulting in inconsistency of findings across studies.  In addition, it appears that deterrent effects of incarceration may vary slightly for different offenders.  Ultimately, the effect of incarceration length on recidivism appears too heterogenous to be able to draw universal conclusions.  We argue that a deepened understanding of the causal mechanisms at play is needed to reliably and accurately inform policy.

May 13, 2021 in Data on sentencing, National and State Crime Data, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (0)

Thursday, May 06, 2021

Federal prison population holding steady at just over 152,000 through first 100 days of the Biden Administration

The day after Joe Biden was inaugurated as President, I authored this post posing a question in the title: "Anyone bold enough to make predictions about the federal prison population — which is now at 151,646 according to BOP?".  That post highlighted notable numerical realties about the the federal prison population (based on BOP data) during recent presidencies: during Prez Obama's first term in office, the federal prison population (surprisingly?) increased about 8%, climbing from 201,668 at the end of 2008 to 218,687 at the end of 2012; during Prez Trump's one term in office, this population count (surprisingly!) decreased almost 20%, dropping from 189,212 total federal inmates in January 2017 to 151,646 in January 2021.

Of course, lots of factors play can and do play lots of different expected and unexpected roles in shaping federal prosecutions and sentencings, and these case processing realities in turn can have unpredictable impacts on the federal prison population.  Consequently, I was disinclined in this January 2021 post to make any bold predictions about what we might see in the Biden era, though I suggested we should expect the federal prison population to be relatively steady at the start because it could take months before any major DOJ policy changes and many more months before any big policy changes start impacting the federal prison population.  

Sure enough, we are now well past the "100 days" milestone for the Biden Administration, and the prison population numbers that the federal Bureau of Prisons updates weekly at this webpage show little change.  Specifically, as of May 6, 2021, the federal prison population clocks in at 152,085. 

Given that the federal prison population has not been anywhere near 150,000 in over two decades, folks troubled by modern mass incarceration should perhaps be inclined to celebrate that the considerable yearly population declines that got started in 2014, and that kicked into a higher gear during to the pandemic, may now have set something of a "new normal" for these population totals.  But, few should forget that, in historical and comparative terms, the modern federal prison population is still quite massive, that almost half of this population is incarcerated for a drug offense, that almost a third of this population has "little or no prior criminal history," and that only around a quarter of this group is "serving a sentence for an offense involving weapons" (details drawn from this USSC quick facts as of June 2020).

A few prior related posts:

May 6, 2021 in Data on sentencing, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

Tuesday, May 04, 2021

"Tip of the Iceberg: How Much Criminal Justice Debt Does the U.S. Really Have?"

The title of this post is the title of this notable new report from The Fines and Fees Justice Center.  Here are some excerpts from the report's "Introduction and Executive Summary":

Over the past two decades, advocates, researchers, government agencies and the media have drawn increasing attention to the dangerous effects of fines and fees, particularly on communities of color and low-income people.  While those moving through the criminal justice system often experience fines and fees as a single, ongoing burden, there are key distinctions between how each of these revenue sources are assessed and imposed.

Fines are monetary sanctions imposed for violating the law. Fees (also known as costs, assessments and surcharges) are additional charges imposed to fund the criminal legal system and other government services.  Fines and some fees are imposed by courts when a person is convicted of a criminal or traffic offense or a municipal code violation. Typically, these fines and fees are owed to the court.  Fees are also often imposed by local governments or their agencies both before and after a person is convicted.  For example, probation fees may be imposed by a local probation department either before trial or after a conviction.  These fees are typically owed to either a city or county government.

Considerable research has uncovered the financial burden and unintended consequences wreaked on the people charged with paying fines and fees.  Yet there has been little, if any, investigation into how much debt is outstanding or delinquent nationwide.  One of the few studies to address the issue found that none of the eight jurisdictions studied had a central repository where information on the total amount of fines and fees owed could be found.  Understanding the full scope of our nation’s criminal justice debt problem is vital to the task of creating an equitable justice system.  Without this information, we cannot accurately evaluate the true impact of fines and fees as a source of government revenue or, more importantly, as a financial burden on those who owe court debt.  The absence of data also results in the absence of accountability for policymakers and justice system stakeholders who support and enact harmful fines and fees policies.

This report addresses fines and fees imposed at conviction in felony, misdemeanor, traffic and municipal ordinance violation cases.  We refer to these fines and fees as “court debt” because it is debt imposed by the court and typically collected by courts or private collection agencies working on a court’s behalf.

This court debt is just the tip of the iceberg when it comes to monetary sanctions in the criminal justice system.  Depending on the jurisdiction, the fines and fees imposed at conviction can be just a fraction of the total amount of unpaid fines and fees owed by people who are or were involved in the criminal legal system.  California, a state which maintains relatively robust data on fines and fees, serves an example — outstanding debt owed to California from the fines and fees imposed at conviction is equal to roughly $10 billion; roughly $16 billion is owed to the state’s counties for one or more of the 23 administrative fees that counties are authorized by state law to impose; and approximately $360 million was owed to counties in juvenile fees.

We chose to focus our investigation on court debt because courts keep a record of every case, and those records should specify the amount of fines and fees imposed at conviction.  We assumed that courts routinely aggregated that data, allowing them to determine the amount of fines and fees assessed.  We also assumed that courts would track how much of those fines and fees were actually collected.  In an effort to obtain this critical information, the Fines and Fees Justice Center contacted judicial offices and government agencies in all 50 states and the District of Columbia that might have data related to outstanding court debt. In a few states, the information related to the data request was already publicly available, but for most of the jurisdictions, a formal request was submitted....

But for half the country ... the full extent of our nation’s problem with court debt is shockingly untraceable and unknown.  And it’s not just the numbers that matter.  If states do not have the means (technological or otherwise) to determine how much money they are owed, there is a strong possibility that reliable data about who holds that debt may also be out of reach.  Without this vital information, stakeholders cannot appropriately weigh other socio-economic factors (apart from poverty) that may correlate with an inability to settle one’s court debt. How can we intelligently assess policy solutions when we can’t obtain a complete view of the problem?...

Knowing how much court debt exists will also allow us to accurately assess whether government resources are being wasted trying to collect debt that people will never be able to pay.  According to a report published by the Brennan Center for Justice, it costs New Mexico’s largest county, Bernalillo, at least $1.17 to collect every dollar of revenue it raises from fines and fees.  The report also found that some Texas and New Mexico counties spend 121 times what the IRS spends to collect taxes on fines and fees collection efforts.  These are valuable funds that could be invested in our communities....

Based on the information that was received, we can document that at least $27.6 billion of fines and fees is owed across the nation.  This figure grossly understates the amount of court debt that people living in the U.S. cannot afford to pay because only 25 states provided data, and the information that many provided was incomplete.  Information concerning the debt totals for the remaining 25 states and the District of Columbia could not be provided or was not available. 

May 4, 2021 in Data on sentencing, Detailed sentencing data, Fines, Restitution and Other Economic Sanctions, Who Sentences | Permalink | Comments (1)

Thursday, April 29, 2021

US Sentencing Commission releases FY 2021 first quarter sentencing data showing COVID's continued impact on federal sentencings (and USSC data)

A helpful colleague made sure that I did not overlook the fact that the US Sentencing Commission this week published here its latest quarterly data report which covers "Fiscal Year 2021 - 1st Quarter Preliminary Cumulative Data (October 1, 2020, through December 31, 2020)."  These new data provide another official accounting of how COVID challenges continued to dramatically reduce the number of federal sentences imposed through the end of 2020.  Specifically, as reflected in Figure 2, while the three quarters prior to COVID 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.  Figure 2 also shows that it is a steep decline in immigration cases that primarily accounts for the decrease in overall cases sentenced.

Also quite interesting is the big jump reported in these data of the number of below-guideline variances granted in the last two quarters (as detailed in Figures 3 and 4).  My colleague had this to say about this data: 

The overall rate of downward variances shot up recently and is staying up, while not surprisingly, the rate of within Guidelines sentences have dropped considerably.  The only apparent explanation is that judges are varying downward more frequently in light of the pandemic: COVID Variances to help lower the prison population and likelihood of infection spread.  Hopefully, if the Commission ever gets a quorum, it addresses the issue of infectious diseases and variances.  After all, 28 USC 994(g) states that “The sentencing guidelines prescribed under this chapter shall be formulated to minimize the likelihood that the Federal prison population will exceed the capacity of the Federal prisons, as determined by the Commission.”  Currently, 81 of the 193 BOP facilities are over their rated capacities making them that much more susceptible to outbreaks. 

Though I certainly want to believe more federal judges are imposing lower sentences because of COVID issues in prison, other data suggest there may be more to the story.  Specifically, in this new quarterly report, the USSC data still show that only 8.6% of offenders received a sentence of probation (in FY 2019, the last pre-COVID year, 7.7% of offenders receive probation; in FY 2018, 8.4% did).  In addition, the average sentence for drug trafficking and firearms and fraud seem largely unchanged when compared to pre-COVID years (though they have ticked down a month or two).  Still, if federal prosecutors during COVID are only moving forward with the most aggravated of cases, then having a few more more persons getting probation and many getting a few months less in prison may still reflect a real and consequential change in sentencing practices. 

In the end, though, I think the sharp increase in variances is primarily a product of the altered mix of cases now that the number of immigration cases being sentenced has declined dramatically.  Immigration sentences are, generally speaking, the least likely to include a variance; drug and fraud sentences are the most likely to include a variance.  Thus, when the case mix includes significantly fewer immigration cases, the overall sentenced population will have a greater percentage receiving variances.  Notably, this case mix story also surely explains why Figure 5 reports that the "Average Guideline Minimum" and the "Average Sentence" have been higher the last two quarters than any time in the last five years.  Immigration cases, generally speaking, have lower guideline minimums and lower average sentences; take a lot of these cases out of the overall mix, and the average for all the other cases will increase.

Ah, the many joys of complicated sentencing data!

April 29, 2021 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines | Permalink | Comments (0)

Tuesday, April 27, 2021

DEPC and NASC present "Justice Counts: Using Data to Inform Policy and Bolster Public Safety"

NASC-Workshop-Series-May-4_for-web-and-email2I am pleased to report that next week, the Drug Enforcement and Policy Center (DEPC) is kicking off its 2021 Sentencing Workshop Series in collaboration with National Association of Sentencing Commissions (NASC) with a terrific event titled "Justice Counts: Using Data to Inform Policy and Bolster Public Safety."  This is how this event is described on this page (where you can register):

Please join the National Association of Sentencing Commissions and the Drug Enforcement and Policy Center for a series of virtual sentencing workshops that bring together leaders from sentencing commissions, the judiciary, and academia.

Justice Counts: Using Data to Inform Policy and Bolster Public Safety.

Tuesday, May 4, 2021 at 12–1 p.m. CDT / 1–2 p.m. EDT | Zoom

This moderated panel discussion will focus on a new national initiative designed to help states make criminal justice data more accessible, clear, and usable for policymakers.  Backed by a coalition of 21 national partner organizations and funded by the U.S. Department of Justice’s Bureau of Justice Assistance, Justice Counts brings together state and local leaders to reach consensus about a limited set of criminal justice metrics that leaders can use to inform budget and policy decisions. The initiative also includes a scan of public, aggregate-level criminal justice data and identifies existing gaps in data reporting.

Panelists:

Megan Grasso, Deputy Program Director, The Council of State Governments Justice Center

Sarah Lee, Policy Analyst, The Council of State Governments Justice Center

Carl Reynolds, Senior Legal and Policy Advisor, The Council of State Governments Justice Center

Ken Sanchagrin, Executive Director, Oregon Criminal Justice Commission

Scott Schultz, Executive Director, Kansas Sentencing Commission

Moderator:

Bennet Wright, Executive Director, Alabama Sentencing Commission

Resources:

Justice Counts website
Justice Counts project overview document

April 27, 2021 in Data on sentencing, Detailed sentencing data | Permalink | Comments (0)

Monday, April 19, 2021

New report highlights need for improved criminal justice data and means thereto

OG-imgI was very pleased to see that Arnold Ventures has produced this great new report focused on the need for, and means to, better criminal justice data infrastructure. At this webpage, Stuart Buck describes the effort this way:

One of the most notorious process problems with America’s criminal justice system is the lack of data. For an institution charged with administering justice and responsible for decisions that profoundly impact people’s lives, it is frighteningly antiquated when it comes to collecting and analyzing data. Experts say long-term, sustainable change is doomed if we can’t track our changes and their impacts.... For years, criminologists and other experts have made the point that criminal justice data is so scarce or unreliably reported that in most jurisdictions, we can barely come up with a simple count of the number of people charged with misdemeanors each year.

Arnold Ventures released a list of six recommendations for how the new Biden administration could improve criminal justice data and research in order to support reform. The report is the product of an expert roundtable that we organized with the guidance of Jane Wiseman from the Harvard Kennedy School, and it has been signed by over 25 national experts. The report addresses the Biden administration because the federal government must take the leadership role on this issue — indeed, a major problem with criminal justice data is that there are many thousands of county and state agencies reporting data in inconsistent ways (or not at all).

The 25-page report should be read in full, but its executive summary provides a helpful overview.  Here are excerpts from that summary:

The Biden administration has shown a willingness to push for bold ideas, with early executive orders advancing racial equity, making greater use of facts and data in federal policymaking, and ending for-profit federal prisons. Comprehensive criminal justice reform should be an important next step on the Biden administration’s agenda... 

An ambitious criminal justice reform agenda will require a strong commitment to building a modern, nimble, comprehensive data infrastructure.  Accomplishing this goal will serve multiple purposes.  An effective data infrastructure will promote transparency and allow the public to hold its officials accountable.  A modern data architecture will improve the effectiveness and efficiency of justice agencies.  A strong data system will provide a baseline for measuring progress toward better outcomes, in particular progress toward racial equity.

Unfortunately, criminal justice reform is made more difficult by data that is incomplete and fraught with error.  Indeed, due to the lack of reliable data, it is often difficult even to document systemic racism in the justice system (such as racial disparities in misdemeanor arrests), let alone to promote solutions to the fair and impartial administration of justice. 

In this moment of heightened awareness of the fragile compact between the public and those whose job it is to make our communities safe, it is time to reimagine both the system and its underlying data infrastructure.  Recommendations toward that end developed by a group of experts include:

• Recommendation #1: Establish an accurate baseline of facts about the criminal justice system, and envision a 21st century system

• Recommendation #2: Radically increase accountability of the justice system through data transparency

• Recommendation #3: Modernize the production and dissemination of criminal justice statistics

• Recommendation #4: Improve the integrity of data used for decision-making, research, and policy

• Recommendation #5: Make criminal justice data more actionable, by linking data for greater insight, and by building capacity to turn insight into action

• Recommendation #6: Harness modern technology to equip decision-makers with more timely and accurate information

This report describes each recommendation, along with implementation action steps.

April 19, 2021 in Data on sentencing, Detailed sentencing data | Permalink | Comments (0)