Tuesday, March 19, 2019

Important new empirical work on expungement realities in Michigan

Via this great new post at the Collateral Consequences Resource Center, I see that Sonja Starr and J.J. Prescott have this great new article titled "Expungement of Criminal Convictions: An Empirical Study."  Here is the article's abstract:

Laws permitting the expungement of criminal convictions are a key component of modern criminal justice reform efforts and have been the subject of a recent upsurge of legislative activity.  This debate has been almost entirely devoid of evidence about the laws’ effects, in part because the necessary data (such as sealed records themselves) have been unavailable.  We were able to obtain access to deidentified data that overcomes that problem, and we use it to carry out a comprehensive statewide study of expungement recipients and comparable non-recipients.

We offer three key sets of empirical findings.  First, among those legally eligible for expungement, just 6.5% obtain it within five years of eligibility.  Drawing on patterns in our data as well as interviews with expungement lawyers, we point to reasons for this serious “uptake gap.”  Second, those who do obtain expungement have extremely low subsequent crime rates, comparing favorably to the general population — a finding that defuses a common public-safety objection to expungement laws.  Third, those who obtain expungement experience a sharp upturn in their wage and employment trajectories; on average, within two years, wages go up by 25% versus the pre-expungement trajectory, an effect mostly driven by unemployed people finding jobs and very minimally employed people finding steadier or higher-paying work.

The CCRC posting about this article highlights that the good news in the form of positive outcomes for those who get records expunged are dimmed by the bad new of low rate of expungement. The CCRC posting goes on:

Finally, and perhaps most disturbingly, few of the people who are intended beneficiaries of Michigan’s expungement law actually obtain this relief, either because they don’t apply for it or because their applications for expungement are not approved.  The authors find six reasons that account for this “uptake gap” (which is greater for people with misdemeanors than felonies):

  • lack of information about the availability of relief;
  • administrative hassle and time constraints;
  • cost (including court filing fees, lost wages, and transportation costs);
  • distrust and fear of the criminal justice system;
  • lack of access to counsel; and
  • insufficient motivation to remove conviction.

In addition, while not a part of the “uptake gap” strictly speaking, the authors note that “every advocate that we spoke to also emphasized the stringency of the eligibility requirements, which in their view exclude a great many worthy candidates.” 

March 19, 2019 in Collateral consequences, Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

"Misdemeanor Appeals"

The title of this post is the title of this notable new empirical article authored by Nancy King and Michael Heise. Here is its abstract:

Misdemeanor cases affect far more people than felony cases, outnumbering felony cases by more than three to one.  Yet very little empirical information exists on many aspects of misdemeanor prosecutions.  This Article provides the first quantitative look at appellate review in misdemeanor cases, nationwide.  It uses data drawn from a random sample of direct criminal appeals decided by every state appellate court in the nation, unpublished aggregate data on misdemeanor trial court cases provided by the Court Statistics Project, and published state court statistics.

We provide the first estimate of the rate of appellate review for misdemeanors, concluding that appellate courts review no more than eight in 10,000 misdemeanor convictions, and disturb only one conviction or sentence out of every 10,000 misdemeanor judgments.  This level of oversight is much lower than that for felony cases, for reasons we explain.  To develop law and regulate error in misdemeanor cases, particularly in prosecutions for the lowest-level offenses, courts may need to provide mechanisms for judicial scrutiny outside the direct appeal process.

Additional findings include new information about the rate of felony trial court review of lower court misdemeanor cases, ratios of appeals to convictions for various misdemeanor-crime categories, detailed descriptive information about misdemeanor cases that reach state appellate courts, the results of a complete statistical analysis examining which features are significantly associated with a greater or lesser likelihood of success, including crime type, claim raised, judicial-selection method, and type of representation, and the first quantitative look at how misdemeanor appeals differ from felony appeals.

March 19, 2019 in Data on sentencing, Detailed sentencing data, Offense Characteristics, Sentences Reconsidered | Permalink | Comments (0)

Monday, March 11, 2019

In praise of Collateral Consequences Resource Center for new major study of non-conviction records

Regular readers know I have regularly urged folks to regularly check out the work and commentary over at the Collateral Consequences Resource Center, and today brings a new post at CCRC that seems important to highlight because it talks about filing a very important gap in our understanding of modern law, policy and practice.  Here is the start of the post:

CCRC is pleased to announce that we are undertaking a major study of the public availability and use of non-conviction records – including arrests that are never charged, charges that are dismissed, deferred dispositions, and acquittals.   Law enforcement agencies and courts frequently make these records available to the public through background checks, and allow their widespread dissemination on the internet.  This can lead to significant discrimination against people who have not been judged guilty of any wrong-doing, and result unfairly in barriers to employment, housing, education, and many other opportunities.  While almost every U.S. jurisdiction makes some provision for limiting public access to non-conviction records through mechanisms like sealing or expungement, such relief provisions vary widely in availability and effect, and are often hard to take advantage of without a lawyer.  What’s more, arrest records may remain accessible on the internet long after official files have been made confidential or even destroyed.  While CCRC’s Restoration of Rights Project now includes state-by-state information on how non-conviction records may be sealed or expunged, our new project will examine applicable laws more closely.

The first phase of this project, which is nearing completion, will produce a detailed inventory of the laws in each U.S. jurisdiction for limiting public access to arrests and/or judicial proceedings that do not result in conviction.  Among other things, this inventory will examine eligibility criteria, procedures (including any filing fees), and scope of relief.  We will also note where state law or court rulings permit sealing of dismissed charges where one or more charges in a case do result in conviction.  In a second phase of this project, we will consult with policy experts to conduct a nationwide analysis, examining specific issues across all jurisdictions, identifying patterns and gaps in existing policies.  The goal of a third phase will be to produce model legislation.

March 11, 2019 in Collateral consequences, Data on sentencing | Permalink | Comments (0)

Saturday, March 09, 2019

Notable review of juvenile lifers in Tennessee

This local article, headlined "3 takeaways from our review of all 185 Tennessee teen lifers," provides an effective review of the maxed-out incarceration of certain youth in the Volunteer State. Here are excerpts:

In December, activists confronted former Gov. Bill Haslam at an education event and demanded that he grant clemency to Cyntoia Brown, a Nashville woman serving a life sentence in prison for a murder she committed at 16.

At the time, the outgoing Republican governor said he wanted to treat the case fairly, along with cases that were similar but had not received the same level of publicity as Brown's case.  Indeed, Brown had celebrities — including Rihanna and Kim Kardashian West — advocating on her behalf, and she had a team of powerful lawyers who volunteered to pursue her freedom.

Ultimately, Haslam decided to grant Brown clemency, calling her sentence too harsh.  And he acknowledged her case was not unique, saying he hoped "serious consideration of additional reforms will continue, especially with respect to the sentencing of juveniles."

In the wake of his decision, the USA TODAY NETWORK - Tennessee spent weeks reviewing the cases of each of the 185 men and women serving a life sentence — or life without parole — for crimes they committed as teens....

Nearly three-quarters of those serving life sentences for crimes they committed before the age of 18 are African-American men.

Here are some of the other breakdowns of the 185 people serving life.  Seven are serving life sentences for crimes committed at age 14; 26 were 15 years old at the time of their crimes; 53 were 16. The rest were 17.  Ten are women.

Fourteen are serving life sentences without the possibility of parole, while the remainder face at least 51 years behind bars before their first chance for a parole hearing.  The oldest is Robert Walker, sentenced to life in prison for murder in 1972 at age 16. He is now 63....

State Sen. Raumesh Akbari, D-Memphis, said many young defendants face childhood hardships and traumas that can be overcome with time and treatment. “There are so many others like Cyntoia,” Akbari said. “It’s so complicated when you’re dealing with loss of life, but we are talking about children,” she said. “As horrific as it sounds that a child committed murder, the person they are now is not the person they will be in 20 years.”

Indeed, in many of the cases the USA TODAY NETWORK - Tennessee reviewed, court records document a history of abuse suffered by the convicted teens.

A 16-year-old girl sentenced to life in prison in the stabbing death of her mother was repeatedly forced to watch her mother have sex with multiple men.

A 15-year-old boy whose stepfather regularly beat his mother got into a confrontation with the man while asking if he would let them peacefully leave. The boy beat the stepfather to death with a baseball bat.

A 17-year-old boy killed his father after what he and his mother described as years of physical and emotional abuse that had been reported to the state. The father threatened to beat the boy after a suicide attempt and withheld mental health medication, according to the mother. The boy shot his father with a rifle and stole his truck.

The U.S. Supreme Court issued a pair of rulings in recent years that found mandatory life sentences for juveniles are unconstitutional except in rare circumstances....  In Tennessee, the Supreme Court's rulings have not had an impact because there is no mandatory life sentence. Life sentences with the possibility of parole include a mandatory review after at least 51 years served — a length of time advocates call a virtual life sentence.

This companion article, headlined "In Tennessee, 185 people are serving life for crimes committed as teens," includes this discussion of some talk of legislative change:

Sen. Raumesh Akbari, D-Memphis, said many young defendants face childhood hardships and traumas that can be overcome with time and treatment. “There are so many others like Cyntoia,” Akbari said....

Gov. Bill Lee's spokeswoman said he is “open to proposals addressing juvenile sentencing,” and a new state panel is considering future reforms. But there remains little consensus among Tennessee policymakers on what to do when children kill.

Akbari is trying to change Tennessee law to lower the minimum time served before a chance for parole to as low as 30 years for juveniles. The proposal could give many of the 185 a second chance at life outside prison walls for the first time in their adult lives.

Her effort is grounded in research about adolescent brain development that shows people do not fully develop rational decision-making abilities until their 20s. Other research has highlighted the impact of adverse childhood experiences on the developing brain, including sexual and physical abuse, poverty and incarcerated parents — events that can negatively wire some children’s brains.

March 9, 2019 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Data on sentencing, Offender Characteristics, Scope of Imprisonment | Permalink | Comments (1)

Thursday, February 21, 2019

"Juvenile Life Without Parole in North Carolina"

The title of this post is the title of this new paper available via SSRN and authored by Ben Finholt, Brandon Garrett, Karima Modjadidi and Kristen Renberg.  Here is its abstract:

Life without parole is “an especially harsh punishment for a juvenile,” and as the U.S. Supreme Court noted in Graham v. Florida.  The United States is the only country in the world that imposes juvenile life without parole sentences. Many of these individuals were sentenced during a surge in LWOP sentences in the 1990s.  In the past decade, following several Supreme Court rulings eliminating mandatory sentences of LWOP for juvenile offenders, juvenile LWOP sentencing has declined.  This Article aims to empirically assess the rise and then the fall in juvenile LWOP sentencing in a leading sentencing state, North Carolina, to better understand these trends and their implications.

We examine the cases of 94 people in North Carolina who were sentenced to LWOP as juveniles.  Their ages at the time of the offense ranged from 13 to 17.  Of those, 51 are currently serving LWOP sentences (one more is currently pending a new trial).  These cases are detailed in the Appendix.  In North Carolina, JLWOP sentencing has markedly declined.  Since 2011, there have been only five such sentences.  Of the group of 94 juvenile offenders, 42 have so far been resentenced to non-LWOP sentences, largely pursuant to the post-Miller legislation in North Carolina.  Over one third of the juveniles sentenced to LWOP, or 32 individuals, were not the killers, but were convicted under a felony murder theory. 

These sentences are concentrated in a small group of counties.  A total of 61% or 57 of the 94 juvenile LWOP sentences in North Carolina were entered in the eleven counties that have imposed more than three such sentences.  We find an inertia effect: once a county has used a JLWOP sentence they have a higher probability of using a JLWOP sentence again in the future.  In contrast, homicide rates are not predictive of JLWOP sentences. 

We ask whether it makes practical sense to retain juvenile LWOP going forward, given what an unusual, geographically limited, and costly sentence it has become.  In conclusion, we describe alternatives to juvenile LWOP as presently regulated in states like North Carolina, including a scheme following the model adopted in states like California and Wyoming, in which there is period review of lengthy sentences imposed on juvenile offenders.

February 21, 2019 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Data on sentencing, Detailed sentencing data, Offender Characteristics, Offense Characteristics | Permalink | Comments (0)

Thursday, February 14, 2019

"The Dark Figure of Sexual Recidivism"

The title of this post is the title of this new paper authored by Nicholas Scurich and Richard John now available via SSRN.  Here is its abstract:

Empirical studies of sexual offender recidivism have proliferated in recent decades. Virtually all of the studies define recidivism as a new legal charge or conviction for a sexual crime, and these studies tend to find recidivism rates on the order of 5-15% after 5 years and 10-25% after 10+ years.  It is uncontroversial that such a definition of recidivism underestimates the true rate of sexual recidivism because most sexual crime is not reported to legal authorities, the so-called “dark figure of crime.”

To estimate the magnitude of the dark figure of sexual recidivism, this paper uses a probabilistic simulation approach in conjunction with a.) victim self-report survey data about the rate of reporting sexual crime to legal authorities, b.) offender self-report data about the number of victims per offender, and c.) different assumptions about the chances of being convicted of a new sexual offense once it is reported.  Under any configuration of assumptions, the dark figure is substantial, and as a consequence, the disparity between recidivism defined as a new legal charge or conviction for a sex crime and recidivism defined as actually committing a new sexual crime is large.  These findings call into question the utility of recidivism studies that rely exclusively on official crime statistics to define sexual recidivism, and highlight the need for additional, long-term studies that use a variety of different measures to assess whether or not sexual recidivism has occurred.

February 14, 2019 in Data on sentencing, National and State Crime Data, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (13)

Friday, February 01, 2019

"Unusual: The Death Penalty for Inadvertent Killing"

The title of this post is the title of this paper authored by Guyora Binder, Brenner Fissell and Robert Weisberg that was just posted to SSRN. Here is its abstract:

Can a burglar who frightens the occupant of a house, causing a fatal heart attack, be executed?  More generally, does the Eighth Amendment permit capital punishment of one who causes death inadvertently?  This scenario is possible in the significant minority of American jurisdictions that permit capital punishment for felony murder without requiring a mental state of intent to kill or reckless indifference to human life.  Thus far, Eighth Amendment death penalty jurisprudence has required a culpable mental state of recklessness for execution of accomplices in a fatal felony but has not yet addressed the culpability required for execution of the actual killer.

In this Article, we urge the recognition of a new Eighth Amendment norm against executing even actual killers who lack a culpable mental state of at least recklessness, with respect to the victim’s death.  Using the methods employed by the Supreme Court for determining “evolving standards of decency,” we survey the pertinent homicide and sentencing laws of the fifty-three criminal law jurisdictions in the United States.  Second, we evaluate the facts of the cases that resulted in the nearly five hundred executions that have taken place since 1973, when the post-Furman statutes became operative, and 2016, in those jurisdictions permitting execution for inadvertent killing. We did the same for the facts of the 1755 cases of all death row inmates convicted in those jurisdictions and alive at the time of the study (2016).  This analysis shows that capital punishment for inadvertent killing has become “truly unusual,” and therefore, unconstitutional.

February 1, 2019 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data, Offense Characteristics | Permalink | Comments (0)

Thursday, January 31, 2019

US Sentencing Commission releases new report titled "Revocations Among Federal Offenders"

Research reports are coming so fast and furious from the US Sentencing Commission, it seems that all I have time for on a busy Thursday is to blog about yet another notable USSC report. Yesterday, as flagged in this post, the new USSC report was on economics crimes; today, the USSC released this 41-page report titled "Revocations Among Federal Offenders." This USSC webpage provides this "Summary" and "Key Findings":

Summary

This publication explores a subset of the Commission’s criminal history rules—those regarding the revocation of terms of probation, parole, supervised release, special parole, and mandatory release.  These rules affect an offender’s criminal history score and Criminal History Category.  This report analyzes the nature and prevalence of revocations, and explores the impact of revocations upon safety valve relief and the career offender guideline.

Key Findings

The key findings of the Commission’s study of revocations are that:

  • Only a minority of offenders (35.0%) with criminal history points under the federal sentencing guidelines had at least one scored conviction with a revocation. Most often such offenders had only one such conviction.

  • For the minority of offenders who did have at least one scored conviction with a revocation, it often increased their criminal history score and resulting Criminal History Category. Among offenders with at least one scored conviction in their criminal history, three-fifths (60.2%) received additional criminal history points, and just under a third (30.9%) received an increase in Criminal History Category. For those offenders who received an increase into a higher Criminal History Category, the impact was generally limited to one Criminal History Category.

  • The rate at which offenders had at least one scored conviction with a revocation varied significantly depending on the type of federal offender. Firearms offenders were the most likely (54.3%) and immigration offenders the least likely (20.9%) to have at least one scored conviction with a revocation. However, the impact of such convictions on their criminal history scores and Criminal History Categories varied much less. Among offenders with at least one such conviction, firearms offenders were the most often (66.2%) and immigration offenders least often (55.9%) to receive additional criminal history points. Furthermore, among offenders who received additional criminal history points, those points resulted in a higher Criminal History Category most often for drug trafficking offenders (53.1%) and least often for firearms offenders (42.9%).

  • The Commission cannot state with certainty how often revocations are based on new crimes versus technical violations because the underlying basis for the revocation could not be determined in 38.7 percent of the cases studied. However, between 38.9 percent and 77.5 percent of the revocations studied were for new crimes, and between 22.5 and 61.1 percent were for technical violations.

  • Prior revocations did not significantly limit offender eligibility for the statutory safety valve, which relieves certain drug trafficking offenders from otherwise applicable statutory mandatory minimum penalties. Of the drug trafficking offenders studied, only 2.3 percent appear to be ineligible for the safety valve based solely on scored convictions with revocations.

  • Prior revocations had a more significant impact on offenders who received the career offender enhancement at §4B1.1. Of the career offenders studied, 10.7 percent qualified for the career offender enhancement in part because of scored convictions with revocations.

January 31, 2019 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (0)

US Sentencing Commission releases new report titled "What Does Federal Economic Crime Really Look Like?"

Cover_2019-econ-crimeContintuing its steady production of research reports to start 2019, the US Sentencing Commission yesterday released this 87-page report under the title ""What Does Federal Economic Crime Really Look Like?". This USSC webpage provides this "Summary" and "Key Findings":

Summary

This publication provides data on the broad variety of economic crime sentenced under §2B1.1.  The Commission undertook a project to systematically identify and classify the myriad of economic crimes sentenced under §2B1.1 using offenders' statutes of conviction and offense conduct.  The Commission used this two-step methodology to assign the 6,068 offenders sentenced under §2B1.1 in fiscal year 2017 to one of 29 specific types of economic crime.

This publication provides, for the first time, data from this new project as well as a brief description of the study's methodology.

Key Findings

  • The economic crime guideline (§2B1.1) accounts for approximately ten percent of the federal caseload and encompasses a wide variety of conduct.

  • Embezzlement and theft offenders consistently accounted for about one-quarter of all economic crime offenders, ranging from 24.6 to 28.3 percent during the five years studied.  Financial institution fraud and government benefits fraud offenders have also been among the top five most prevalent type of economic crime offenders.

  • The offense severity, as measured by several guideline enhancements, varied significantly across the 17 specific types of economic crime that were the focus of this report.  In particular, median loss amounts varied substantially, with four specific offense types involving median losses far exceeding the median loss amount for all economic crime offenders of $131,750: securities and investment fraud ($2,105,620), health care fraud ($1,086,205), mortgage fraud ($999,721), and government procurement fraud ($739,455) and two specific offense types with the lowest median loss amounts: mail related fraud ($1,815) and false statements ($0).  These differences are particularly noteworthy because the loss calculation is the primary driver of the guideline calculation under §2B1.1.

  • The application rates of other guideline provisions measuring offense severity and offender culpability also varied significantly across the specific types of economic crime. For example, the victims enhancement applied in 78.1 percent of securities and investment fraud compared to 2.4 percent of false statements offenses, and the sophisticated means enhancement applied in 37.5 percent of advanced fee fraud compared to 0.6 percent of mail related fraud.

  • The average sentences varied significantly across the specific types of economic crime. Securities and investment fraud offenders received the longest average sentences at 52 months, more than twice as long as the average sentence for all economic crime offenders of 23 months.  False statements offenders received the shortest average sentence at five months.

  • Offender characteristics also differed across economic crime types.  For example, White offenders accounted for a substantial majority of securities and investment fraud (79.9%), computer related fraud (70.5%), and government procurement fraud (62.3%), while Black offenders accounted for the largest proportion of tax fraud (55.0%), identity theft (49.4%), and credit card fraud (45.0%).

January 31, 2019 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, White-collar sentencing | Permalink | Comments (1)

Friday, January 25, 2019

Timely questions on enduringly important topics via The Crime Report

I have praised and promoted work done over at The Crime Report for many years, and the site remains a daily must-read for criminal justice fans.  And in the last few days, TCR has had two new pieces headlined with two questions that are timely and enduring.  Here are the headlines, links and brief excerpts:

"Can the U.S. Abolish Life Sentences?" (Q&A with Ashley Nellis)

TCR: You write, “Perhaps the most glaring omission of relevant data was the failure of the Bureau of Justice Statistics (BJS), the well-regarded research arm of the Department of Justice, to document the scale of life imprisonment.” Do you think this omission was on purpose or by accident?  And why?

Nellis: I think it’s not on purpose, there just a lack of resources in the research arms.  There’s also a lack of general interest from the public, so there was no incentive to document the expansion of life sentences. We shouldn’t be surprised that there hasn’t been data on the expansion because it goes along with laws and policies of the 1990s.

[The BJS] is not a political entity, but it seems to be. If you pass legislation at federal level that is bound to increase your incarcerated population… you should probably document the impact of those policies.  If you pass mandatory minimums with the elimination of parole, it seems wise to document how many people go to prison because you did that. Once a lot of the public sees the dramatic growth of life sentences— nearly five-fold increase over time — then they ask “why did nobody notice this before?” The answer is because nobody was recording it.

"Do We Really Need Probation and Parole?" (commentary by Vincent Schiraldi): 

Although “mass supervision” on probation or parole has not yet garnered the attention of “mass incarceration,” its impact is no small matter.  There are 4.5 million people under community supervision in America, twice as many as are incarcerated, a figure that amounts to more than the population in half of all U.S. states.  About four in ten people entering America’s prisons and jails each year are under supervision.  Many of those are incarcerated, not for committing new crimes, but for breaking a wide array of supervision rules.

January 25, 2019 in Criminal Sentences Alternatives, Data on sentencing, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (1)

Thursday, January 24, 2019

US Sentencing Commission releases big new report on "Recidivism Among Federal Violent Offenders"

Cover_recidivism-violenceThe US Sentencing Commission has just released its fifth major report in a series reviewing the recidivism rates of federal offenders released back in 2005.  This 74-page report is titled simply "Recidivism Among Federal Violent Offenders.This USSC webpage provides links, and this "Report Summary" and "Key Findings":

Report Summary

Recidivism Among Federal Violent Offenders is the fifth report in a series examining a group of 25,431 federal offenders who were released from federal custody in calendar year 2005. This report analyzes the recidivism rates of federal offenders who engaged in violent criminal activity. The study identifies two groups of violent offenders:

  • "Violent instant offenders" who engaged in violent criminal conduct as part of their instant federal offense; and 
  • "Violent prior offenders" who were not categorized as violent offenders based on their instant federal offense, but who had been arrested for a violent offense in their past.

Taken together, these 10,004 “violent offenders” are analyzed in comparison to the remaining 15,427 “non-violent offenders” released from federal custody in calendar year 2005.  (Published January 24, 2019)

Key Findings

Consistent with the Commission’s previous research, this report shows that offenders who engaged in violent criminal activity — whether during the instant federal offense or as part of prior criminal conduct — generally recidivated at a higher rate, more quickly, and for more serious crimes than non-violent offenders.

Key findings of the Commission’s study of recidivism among violent offenders are: 

  • A substantial number of the 25,431 U.S. offenders released in calendar year 2005 — 39.3 percent — engaged in violent criminal activity as part of their instant federal offense or prior criminal conduct.

  • Violent offenders recidivated at a higher rate than non-violent offenders.  Over 60 percent (63.8%) of violent offenders recidivated by being rearrested for a new crime or for a violation of supervision conditions.  This compares to less than 40 percent (39.8%) of non-violent offenders who were rearrested during the follow-up period.

  • Violent offenders recidivated more quickly than non-violent offenders.  Of those violent offenders who recidivated, the median time from release to the first recidivism event was 18 months.  Comparatively, the median time from release to the first recidivism event for non-violent offenders was 24 months.

  • Violent offenders recidivated for more serious crimes than non-violent offenders. Over one-fourth (28.4%) of the violent offenders who recidivated had assault as their most serious new charge, followed by public order crimes (15.6%) and drug trafficking (11.1%).  Of the non-violent offenders who recidivated, public order crimes were the most common new charge (20.9%), followed by assault (17.9%) and drug trafficking (12.0%).

  • Violent offenders have higher recidivism rates than non-violent offenders in every Criminal History Category, however, the difference in recidivism rates between violent and non-violent offenders is most pronounced in the lower Criminal History Categories and among offenders designated as career offenders or armed career criminals.

  • Recidivism rates for violent offenders in every age group at the time of release from custody were higher than the rates for non-violent offenders.  Violent offenders recidivated at twice the rate of non-violent offenders among those released after age 40.

  • Analyzed separately, violent instant offenders and violent prior offenders both recidivated at a higher rate and for more serious crimes than non-violent offenders.

January 24, 2019 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Reentry and community supervision | Permalink | Comments (3)

Tuesday, January 08, 2019

US Sentencing Commission releases big new report on "Intra-City Differences in Federal Sentencing Practices"

Cover_intra-city-differencesThe US Sentencing Commission has just released its second big research report of the new year with this 138-page report titled "Intra-City Differences in Federal Sentencing Practices." (The main text of the report is less than 30 pages, with the other 100+ full of detailed appendices.)  This USSC webpage provides links, an overview and conclusions from the report:

Overview

This report examines variations in sentencing practices — and corresponding variations in sentencing outcomes — in the federal courts since the Supreme Court’s 2005 decision in United States v. Booker.  The United States Sentencing Commission analyzed the sentencing practices of federal district judges in 30 major cities located throughout the country to determine the extent of the judges’ variations in imposing sentences in relation to the city average.

This report is the second in a series of reports updating the analyses and findings of the Commission’s 2012 Report on the Continuing Impact of United States v. Booker on Federal Sentencing.

Conclusions

Although the trend of increasing differences among judges slowed after 2011, the increasing differences in sentencing practices first reported at the district level in the Commission’s 2012 Booker Report generally persist to this day, even within the same courthouse. In particular, the Commission finds that:

  • From the Booker to Gall Periods, 23 of the 30 cities had increases in their total spreads, and 22 of 27 cities (those with at least five judges in all three periods) had increases in their standard deviations.  From the Gall to the Post-Report Periods, 20 of the 30 cities had increases in their total spreads, and 16 of the 27 cities (those with at least five judges in all periods) had increases in their standard deviations, although the magnitude of the increases was less than the magnitude of the increases from the Booker Period to the Gall Period.

  • In terms of the overall changes during the 13 years, from the Booker Period to the Post-Report Period, 25 of the 30 cities saw a net increase in their total spreads and 23 cities of the 27 with reported standard deviations saw a net increase in their standard deviations.

  • Considering all 30 cities together as a representative sample of the country as a whole, the average total spreads for all 30 cities in the three periods increased from 18.2 in the Booker Period to 23.7 in the Gall Period to 27.6 in the Post-Report Period.  The average standard deviations for the 27 cities (those with at least five judges) grew from 5.8 to 7.7 to 8.3 during the same three periods.

  • In most cities, the length of a defendant’s sentence increasingly depends on which judge in the courthouse is assigned to his or her case.

Once I have a chance to review this data a bit more, I may have more to say about its findings and other takeaways.  But it seems already worth noting that any justified concerns about data showing that "the length of a defendant’s sentence increasingly depends on which judge in the courthouse is assigned to his or her case" are at least a bit mitigated by the passage of the FIRST STEP Act.  Those defendants unfairly receiving longer sentences because their cases were assigned to distinctly harsh sentencing judges are now generally going to be able to earn a greater portion of time off their long sentences (and have more opportunities to seek earlier release through other means) thanks to various new provisions of the the FIRST STEP Act.

January 8, 2019 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Who Sentences | Permalink | Comments (1)

Wednesday, January 02, 2019

US Sentencing Commission releases big new report on "Mandatory Minimum Penalties for Federal Sex Offenses"

The US Sentencing Commission has kicked of the new year with this 81-page report titled ""Mandatory Minimum Penalties for Federal Sex Offenses." This USSC webpage provides this summary and key findings from the report:

Summary

This publication examines the application of mandatory minimum penalties specific to federal sex offenses; it is the sixth and final release in the Commission's series of publications on mandatory minimum penalties.

Using fiscal year 2016 data, this publication includes analyses of the two types of federal sex offenses carrying mandatory minimum penalties, sexual abuse offenses and child pornography offenses, as well their impact on the Federal Bureau of Prisons population. In addition to analyzing child pornography offenses generally, this publication analyzes child pornography offenses by offense type, exploring differences in frequency, offender characteristics, and sentencing outcomes for distribution, receipt, and possession offenses. Where appropriate, the publication highlights changes and trends since the Commission’s 2011 Mandatory Minimum Report.

Key Findings

  • Mandatory minimum penalties for sex offenses are applied less often in the federal system compared to other mandatory minimum penalties.
    • Offenders convicted of a sex offense comprised only 4.2 percent (n=2,633) of federal offenders sentenced in fiscal year 2016.
    • Sex offenses accounted for 19.4 percent of offenses carrying a mandatory minimum penalty in fiscal year 2016.
  • Sex offenses, however, increased in number and as a percentage of the federal docket, and sex offenders were more frequently convicted of an offense carrying a mandatory minimum penalty.
    • Offenders convicted of a sex offense increased from 3.2 percent (n=2,317) of federal offenders, in fiscal year 2010, to 4.2 percent (n=2,633) in fiscal year 2016.
    • The number of offenders convicted of sexual abuse offenses has steadily increased since the Commission’s 2011 Mandatory Minimum Report, from 639 offenders in fiscal year 2010 to a high of 1,148 offenders in fiscal year 2016. Additionally, the percentage of sexual abuse offenders convicted of an offense carrying a mandatory minimum penalty also increased substantially, from 21.4 percent in fiscal year 2004, to a high of 63.2 percent in fiscal year 2016.
    • While also increasing over time since 2004, the number of child pornography offenders has remained relatively stable since the Commission’s 2011 Mandatory Minimum Report, decreasing slightly from 1,675 offenders in fiscal year 2010 to 1,565 in fiscal year 2016. The percentage of child pornography offenders convicted of an offense carrying a mandatory minimum penalty, however, has generally increased, from 50.2 percent in fiscal year 2010 to a high of 61.2 percent in 2014, before leveling off to 59.6 percent in fiscal 2016.
  • Sex offenders are demographically different than offenders convicted of other offenses carrying mandatory minimum penalties.
    • In fiscal year 2016, Native American offenders comprised a larger percentage of sexual abuse offenders than of any other offense carrying a mandatory minimum penalty. They constituted 11.7 percent of sexual abuse offenders overall and represented the largest portion (28.2%) of sexual abuse offenders convicted of an offense not carrying a mandatory minimum penalty.
    • White offenders constituted over 80 percent of offenders convicted of any child pornography offense (80.9%), convicted of a child pornography offense carrying a mandatory minimum penalty (83.0%), and those subject to that penalty (83.2%).  In comparison, White offenders comprised 22.7 percent, 27.2 percent, and 31.1 percent of all federal offenders, federal offenders convicted of any offense carrying a mandatory minimum penalty, and federal offenders subject to any mandatory minimum penalty, respectively.
    • The average age for all child pornography offenders and child pornography offenders convicted of an offense carrying a mandatory minimum penalty was 42, five years older than the average age for federal offenders convicted of an offense carrying any mandatory minimum penalty. Nearly half of all child pornography offenders were 41 or older (48.0%).
    • While the average age for sexual abuse offenders was the same as the average age of federal offenders overall (37), of those convicted of a mandatory minimum penalty, 17.6 percent were older than 50 and 20.5 percent were between 41 and 50.
  • Offenders convicted of sex offenses carrying a mandatory minimum penalty are sentenced to longer terms than those convicted of sex offenses not carrying a mandatory minimum penalty.
    • In fiscal year 2016, the average sentence for offenders convicted of a sexual abuse offense carrying a mandatory minimum penalty was nearly three times longer than the average sentence for offenders convicted of a sexual abuse offense not carrying a mandatory minimum penalty (252 months compared to 86 months).
    • The average sentence for child pornography offenders who faced a ten-year mandatory minimum penalty because of a prior sex offense conviction (136 months) was substantially longer than the average sentence for those offenders who were convicted of a possession offense (without a prior sex offense), which does not carry a mandatory minimum penalty (55 months).
    • Child pornography offenders convicted of distribution (140 months) and receipt offenses (93 months), which carry a five-year mandatory minimum penalty, also had a longer average sentence than offenders convicted of possession offenses (55 months), who did not face a mandatory minimum penalty.
  • Although Commission analysis has demonstrated that there is little meaningful distinction between the conduct involved in receipt and possession offenses, the average sentence for offenders convicted of a receipt offense, which carries a five-year mandatory minimum penalty, is substantially longer than the average sentence for offenders convicted of a possession offense, which carries no mandatory minimum penalty.
    • In fiscal year 2016, the average sentence for receipt offenders (without a prior sex offense conviction) was two and a half years longer (85 months) than the average sentence length for possession offenders (without a prior sex offense conviction) (55 months).
  • While still constituting a relatively small percentage of the overall prison population, the number of both sexual abuse offenders and child pornography offenders in Federal Bureau of Prisons custody has steadily increased, with both reaching population highs as of September 30, 2016.
    • Sexual abuse offenders accounted for only 3.5 percent (n=5,764) of the federal prison population as of September 30, 2016, but the number of sexual abuse offenders in a federal prison has steadily increased since fiscal year 2004, from 1,640 offenders to a high of 5,764 in fiscal year 2016. The number of offenders convicted of a sexual abuse offense carrying a mandatory minimum penalty in the federal prison population has increased at a similar rate, from 276 to 4,055, during the same time period.
    • Child pornography offenders accounted for only 5.1 percent (n=8,508) of the federal prison population as of September 30, 2016, but the number of child pornography offenders in federal prison has steadily increased since fiscal year 2004, from 1,259 offenders to a high of 8,508 in fiscal year 2016. The number of offenders convicted of a child pornography offense carrying a mandatory minimum penalty in the federal prison population has increased at a similar rate, from 118 to 6,303 during the same time period.

January 2, 2019 in Data on sentencing, Detailed sentencing data, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (4)

Monday, December 31, 2018

Federal criminal caseload highlights from Chief Justice's "2018 Year-End Report on the Federal Judiciary"

The Chief Justice of the United States always closes out a calendar year by releasing a year-end report on the federal judiciary. The 2018 version from Chief Justice John G. Roberts is available here, and it includes an Appendix on the Workload of the Courts with some notable federal criminal justice details. Here are those details:

Criminal appeals fell one percent, appeals of administrative agency decisions decreased one percent, and bankruptcy appeals declined 10 percent.

Original proceedings in the courts of appeals, which include prisoner requests to file successive habeas corpus proceedings in the district court, dropped eight percent this year, continuing the decline from last year.  These filings had spiked in 2016 after the Supreme Court’s decision in Welch v. United States, 578 U.S. ___, No. 15-6418 (Apr. 16, 2016), which provided a new basis for certain prisoners convicted under the Armed Career Criminal Act to challenge their sentences....

Filings for criminal defendants (including those transferred from other districts) increased 13 percent to 87,149. Defendants charged with immigration offenses rose 37 percent, largely in response to a 40 percent increase in defendants charged with improper reentry by an alien.  The southwestern border districts received 78 percent of national immigration defendant filings.  Drug crime defendants, who accounted for 28 percent of total filings, grew two percent, although defendants accused of crimes associated with marijuana decreased 19 percent.  Filings for defendants prosecuted for firearms and explosives offenses rose 21 percent, the highest total since 2004.  The district courts saw increased filings involving general offenses, violent offenses, and sex offenses, and reduced filings involving justice system offenses, traffic offenses, and regulatory offenses....

A total of 129,706 persons were under post-conviction supervision on September 30, 2018, a reduction of four percent from one year earlier.  Of that number, 113,189 persons were serving terms of supervised release after leaving correctional institutions, a three percent decrease from the prior year.  Cases activated in the pretrial services system, including pretrial diversion cases, increased 13 percent to 99,931.

December 31, 2018 in Data on sentencing | Permalink | Comments (0)

Wednesday, December 19, 2018

US Sentencing Commission provides latest "Sentence and Prison Impact Estimate" for FIRST STEP Act

Back in March of this year, as reported in this post, US Sentencing Commission posted on its website this letter from the USSC's Director of its Office of Research and Data to an analyst at the Congressional Budget Office.  This document included a detailed "Sentence and Prison Impact Estimate Summary" of the impact of S.1917, the Sentencing Reform and Corrections Act of 2017.  That analysis not only detailed the expected impact of an array of provisions in the SRCA, but also confirmed my sense that the prison-reform provisions of that bill could be in many ways more important and impactful than many of its sentencing-reform provisions. 

The FIRST STEP Act, notably, has preserved and even expanded upon some of the prison-reform provisions that were in the SRCA, but it only now has a few of its sentencing-reform provisions.  Still, its impact is likely to be considerable (with just how considerable depending upon its implementation).  And, helpfully, the US Sentencing Commission has now produced this new, updated document titled "Sentence and Prison Impact Estimate Summary, S. 756, The First Step Act of 2018 (as passed by the Senate on December 18, 2018)."  Here is that document's basic accounting of the three biggest impact items of the bill: 

Section 101: Risk and Needs Assessment System

Retroactive Impact: 106,114 eligible offenders were in BOP custody as of May 26, 2018.

Section 402: Broadening of Existing Safety Valve (to offenders with up to 4 criminal history points)

Prospective Impact: 2,045 Offenders Annually; -21.8% Sentence Reduction; Decrease of 1,072 beds in BOP 5 years after effective date.

Retroactive Impact: Not authorized in bill.

Section 404: Retroactive Application of Fair Sentencing Act (to defendants previously sentenced)

Impact: 2,660 eligible offenders were in BOP custody as of May 26, 2018.

December 19, 2018 in Assessing Graham and its aftermath, Data on sentencing, FIRST STEP Act and its implementation, Prisons and prisoners | Permalink | Comments (0)

Friday, December 14, 2018

DPIC releases year-end report noting that 2018 was "fourth consecutive year with fewer than 30 executions and 50 death sentences"

SentencesByYearThis press release from the Death Penalty Information Center, titled "2018 Marked the Fourth Consecutive Year with Fewer than 30 Executions and Less than 50 Death Sentences," provides a summary of the DPIC's 2018 year-end report on the administration of the death penalty in the United States.  Here are excerpts from the press release:

With 25 executions and 42 death sentences expected this year, the use of the death penalty remained near historic lows in 2018, according to a report released today by the Death Penalty Information Center (DPIC).  2018 marked the fourth consecutive year with fewer than 30 executions and 50 death sentences, reflecting a long-term decline of capital punishment across the United States. Court decisions and election results signaled continuing low death-penalty use as Washington State declared its capital punishment statute unconstitutional and voters ousted prosecutors in seven counties known for aggressive death-penalty usage.

In 2018, 14 states and the federal government imposed death sentences, with 57% of the projected 42 sentences coming from just four states: Texas and Florida (both with seven) and California and Ohio (both with five). No county imposed more than two death sentences for the first time in the modern era of the death penalty (after the U.S. Supreme Court struck down all death penalty statutes in 1972).

The death penalty remained geographically isolated as only eight states carried out the 25 executions: Alabama, Arkansas, Florida, Georgia, Nebraska, South Dakota, Tennessee, and Texas. Texas accounted for more than half of all executions (13); there were fewer executions in the rest of the country than in any year since 1991. 2018 was the fourth year in a row with fewer than 30 executions. Before 2015, 1991 was the last year with fewer than 30 executions.

The cases in which the death penalty was imposed or carried out continued to raise questions about the fairness of its application. More than 70% of the people executed showed evidence of serious mental illness, brain damage, intellectual impairment, or chronic abuse and trauma, and four were executed despite substantial innocence claims....

On October 11, Washington became the 20th state to abolish the death penalty when its Supreme Court unanimously ruled that capital punishment violates the state constitution because it “is imposed in an arbitrary and racially biased manner.” Governors in Oregon and Pennsylvania who had imposed or extended moratoria on the death penalty were reelected and Colorado, the third state with a moratorium, elected a governor who campaigned on repealing the death penalty.

Prosecutorial candidates who ran on reform platforms won elections in several counties with a history of aggressive use of the death penalty. Reform candidates were elected district attorney in two Texas counties – Bexar and Dallas – that are among the two percent of counties responsible for the majority of executions. Voters in Orange and San Bernardino counties in California, two of the nation’s most prolific producers of death sentences, ousted their long-time incumbent district attorneys.

December 14, 2018 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data, Who Sentences | Permalink | Comments (0)

Wednesday, December 12, 2018

Prison Policy Initiative produces "Correctional Control 2018: Incarceration and supervision by state"

National_correctional_control2018The fine folks at the Prison Policy Initiative a few years ago produced this first version of a report that sought to aggregate "data on all of the kinds of correctional control: federal prisons, state prisons, local jails, juvenile incarceration, civil commitment, Indian Country jails, parole and, lastly but importantly, probation."  PPI's latest version of this report, now called "Correctional Control 2018: Incarceration and supervision by state," gets started this way:

The U.S. has a staggering 2.3 million people behind bars, but even this number doesn’t capture the true scale of our correctional system.  For a complete picture of our criminal justice system, it’s more accurate to look at the 6.7 million people under correctional control, which includes not only incarceration but also probation and parole.

The vast majority of people under correctional control are on probation and parole, collectively known as community supervision (or community corrections).  An estimated 4.5 million adults are under community supervision, nearly twice the number of people who are incarcerated in jails and prisons combined. Yet despite the massive number of people under their control, parole and probation have not received nearly as much attention as incarceration.  Only with recent high-profile cases (such as rapper Meek Mill’s probation revocation) has the public begun to recognize the injustices plaguing probation and parole systems, which set people up to fail with long supervision terms, onerous restrictions, and constant scrutiny.  Touted as alternatives to incarceration, these systems often impose conditions that make it difficult for people to succeed, and therefore end up channeling people into prisons and jails.

Understanding correctional control beyond incarceration gives us a more accurate and complete picture of punishment in the United States, showing the expansive reach of our criminal justice system.  This is especially true at the state level, as some of the states that are the least likely to send someone to prison are the most likely to put them under community supervision.  Given that most criminal justice reform will need to happen at the state and local levels, it is crucial for states to assess not only their incarceration rates, but whether their “alternatives” to incarceration are working as intended.

For this report, we compiled data on each state’s various systems of correctional control to help advocates and policymakers prioritize targets for reform.  This report includes data on federal prisons, state prisons, local jails, juvenile confinement, involuntary commitment, Indian Country jails, parole, and probation. We make the data accessible in one nationwide chart and 100 state-specific pie charts.  In this update to our original 2016 report, we pay particular attention to the harms of probation and parole, and discuss how these systems might be reworked into more meaningful alternatives to incarceration.

December 12, 2018 in Collateral consequences, Criminal Sentences Alternatives, Data on sentencing, Detailed sentencing data, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (1)

Monday, November 26, 2018

"Layers of Bias: A Unified Approach for Understanding Problems With Risk Assessment"

The title of this post is the title of this article recently published by the journal Criminal Justice and Behavior and authored by Laurel Eckhouse, Kristian Lum, Cynthia Conti-Cook and Julie Ciccolini.  Here is the article's abstract:

Scholars in several fields, including quantitative methodologists, legal scholars, and theoretically oriented criminologists, have launched robust debates about the fairness of quantitative risk assessment. As the Supreme Court considers addressing constitutional questions on the issue, we propose a framework for understanding the relationships among these debates: layers of bias.

In the top layer, we identify challenges to fairness within the risk-assessment models themselves.  We explain types of statistical fairness and the tradeoffs between them.  The second layer covers biases embedded in data.  Using data from a racially biased criminal justice system can lead to unmeasurable biases in both risk scores and outcome measures. The final layer engages conceptual problems with risk models: Is it fair to make criminal justice decisions about individuals based on groups?  We show that each layer depends on the layers below it: Without assurances about the foundational layers, the fairness of the top layers is irrelevant.

November 26, 2018 in Data on sentencing, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Tuesday, November 13, 2018

"Women’s Mass Incarceration: The Whole Pie 2018"

Pie_2018_womenThe Prison Policy Initiative has today posted an updated version of its remarkable incarceration "pie" graphic and associated report on the particulars of who and how women are incarcerated in the United States.  Here is part of the report's introductory text and subsequent discussion:

With growing public attention to the problem of mass incarceration, people want to know about women’s experience with incarceration.  How many women are held in prisons, jails, and other correctional facilities in the United States?  And why are they there?  How is their experience different from men’s?  While these are important questions, finding those answers requires not only disentangling the country’s decentralized and overlapping criminal justice systems, but also unearthing the frustratingly hard to find and often altogether missing data on gender.

This report provides a detailed view of the 219,000 women incarcerated in the United States, and how they fit into the even broader picture of correctional control.  This 2018 update to our inaugural Women’s Whole Pie report pulls together data from a number of government agencies and calculates the breakdown of women held by each correctional system by specific offense.  The report, produced in collaboration with the ACLU’s Campaign for Smart Justice, answers the questions of why and where women are locked up:

In stark contrast to the total incarcerated population, where the state prison systems hold twice as many people as are held in jails, incarcerated women are much more evenly split between state prisons and local jails.  This has serious consequences for incarcerated women and their families.

Women’s incarceration has grown at twice the pace of men’s incarceration in recent decades, and has disproportionately been located in local jails.  The explanation for exactly what happened, when, and why does not yet exist because the data on women has long been obscured by the larger scale of men’s incarceration....

Looking at the big picture shows that a staggering number of women who are incarcerated are not even convicted: a quarter of women who are behind bars have not yet had a trial.  Moreover, 60% of women under local control have not been convicted of a crime and are awaiting trial....

Avoiding pre-trial incarceration is uniquely challenging for women.  The number of unconvicted women stuck in jail is surely not because courts are considering women, who are generally the primary caregivers of children, to be a flight risk.  The far more likely answer is that incarcerated women, who have lower incomes than incarcerated men, have an even harder time affording cash bail.  When the typical bail amounts to a full year’s income for women, it’s no wonder that women are stuck in jail awaiting trial....

So what does it mean that large numbers of women are held in jail — for them, and for their families?  While stays in jail are generally shorter than in stays in prison, jails make it harder to stay in touch with family than prisons do.  Phone calls are more expensive, up to $1.50 per minute, and other forms of communication are more restricted — some jails don’t even allow real letters, limiting mail to postcards.  This is especially troubling given that 80% of women in jails are mothers, and most of them are primary caretakers of their children.  Thus children are particularly susceptible to the domino effect of burdens placed on incarcerated women....

Too often, the conversation about criminal justice reform starts and stops with the question of non-violent drug and property offenses.  While drug and property offenses make up more than half of the offenses for which women are incarcerated, the chart reveals that all offenses — including the violent offenses that account for roughly a quarter of all incarcerated women — must be considered in the effort to reduce the number of incarcerated women in this country. This new data on women underlines the need for reform discussions to focus not just on the easier choices but on the policy changes that will have the most impact....

Even the “Whole Pie” of incarceration above represents just one small portion (17%) of the women under correctional supervision, which includes over a million women on probation and parole.  Again, this is in stark contrast to the general incarcerated population (mostly men), where a third of all people under correctional control are in prisons and jails.

November 13, 2018 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

Thursday, November 01, 2018

Pew reports on persons on probation or parole in US

The folks at Pew have this new posting titled in full "1 in 55 U.S. Adults Is on Probation or Parole: Better strategies can cut that rate while protecting public safety, decreasing drug misuse, and reducing incarceration." Here is how the posting gets started:

More than a decade ago, policymakers around the country seeking to protect public safety, improve accountability, and save taxpayer dollars initiated a wave of bipartisan reforms that has reduced the number of people behind bars in many states. Because of their high costs and visibility, prisons garnered substantial public attention on criminal justice, while relatively little was paid to the largest part of the correctional system: community supervision.

Probation and parole populations grew 239 percent from 1980 to 2016, and with that came a dramatic rise in the per capita rate of community supervision, which was 1 in 55 U.S. adults — nearly 2 percent — in 2016.  Although the community corrections population declined 11 percent since its all-time peak in 2007, it is still twice the size of the population incarcerated in state and federal prisons and local jails, combined. Notably, supervision rates vary considerably by state, from 1 in 18 in Georgia to 1 in 168 in New Hampshire, reflecting the difference in practices and policies across the nation.

This massive scale has too often prevented the community supervision system from effectively delivering on its mission to promote public safety through behavioral change and accountability.  Although about half of the roughly 2.3 million people who complete their probation and parole terms each year do so successfully, nearly a third fail for a range of reasons, and almost 350,000 of those individuals return to jail or prison, often for violating the rules rather than committing new crimes.

November 1, 2018 in Criminal Sentences Alternatives, Data on sentencing, Detailed sentencing data, Reentry and community supervision | Permalink | Comments (0)

Tuesday, October 30, 2018

US Sentencing Commission releases FY 2018 third quarter (repackaged) sentencing data

US Sentencing Commission has now released here its "3rd Quarter ... Preliminary Fiscal Year 2018 Data."  As previously noted in this post when the USSC released data on offenders sentenced during the first half of fiscal year 2018, the Commission has altered how it accounts and reports sentencing data.  This new data run explains "the Commission is again updating the way it presents quarterly data. In this report, all analyses that involve a comparison of the position of the sentence imposed to the guideline range that applied in the case are presented in a new way. Sentences are now grouped into two broad categories: Sentences Under the Guidelines Manual and Variances."  As I see it, this means within-guideline and "traditional departure" sentences are grouped together, while all Booker-allowed variances are broken out distinctly.

As I have said before, nothwithstanding this repackaging aside, we can still look at the "within-guideline" number on Tables 8 and 8A for direct comparisons on this front between the first three quarters of of FY 2018 and all federal sentencing data from the last full year of the Obama Administration (in this FY 2016 data report).  Doing so shows that the within-guideline sentencing rate has increased from 48.6% in FY 2016 up to 50.5% in the first three-quarters of FY 2018.  Without a more intricate and sophisticated analysis controlling for caseloads and other factors, this upward movement in within-guideline sentences does not alone provide conclusive evidence that "Trump era" changes in prosecutorial policies and practices is having a direct impact on federal sentencing outcomes.  But these new data continue to be suggestive of trends to watch as more cases more through the pipeline and as new federal prosecutors and judges are impacted by new commands and advocacy from Main Justice.

Prior related post:

October 30, 2018 in Booker in district courts, Criminal justice in the Trump Administration, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Sunday, October 21, 2018

"Reforming Restrictive Housing: The 2018 ASCA-Liman Nationwide Survey of Time-in-Cell"

The title of this post is the title of this big new report now available here via SSRN. Here is its abstract:

Reforming Restrictive Housing: The 2018 ASCA-Liman Nationwide Survey of Time-in-Cell is the fourth in a series of research projects co-authored by the Association of State Correctional Administrators (ASCA) and the Arthur Liman Center at Yale Law School.  These monographs provide a unique, longitudinal, nationwide database.  The topic is “restrictive housing,” often termed “solitary confinement,” and defined as separating prisoners from the general population and holding them in cells for an average of 22 hours or more per day for 15 continuous days or more.

The 2018 monograph is based on survey responses from 43 prison systems that held 80.6% of the U.S. prison population.  They reported that 49,197 individuals — 4.5% of the people in their custody — were in restrictive housing.  Extrapolating, we estimate that some 61,000 individuals were in isolation in U.S. prisons.  This number does not include people in most jails or juvenile, military, or immigration facilities.

Two areas of special concern are the impact of mental illness and the length of time individuals spend in restrictive housing.  Correctional systems use a variety of definitions for serious mental illness.  Using their own descriptions, jurisdictions counted more than 4,000 prisoners identified as seriously mentally ill and in restrictive housing.  Within the 36 jurisdictions that reported on the length of time people had been in segregation, most people were held for a year or less.  Twenty-five jurisdictions counted more than 3,500 individuals held more than three years.

Reforming Restrictive Housing details policy changes tracking the impact of the 2016 American Correctional Association’s (ACA) Restrictive Housing Performance Based Standards. The ACA Standards call for limiting the use of isolation for pregnant women, juveniles, and seriously mentally ill individuals.

This monograph also compares the responses of the 40 prison systems that answered the ASCA-Liman surveys in both 2015 and 2017.  See ASCA-Liman, Aiming to Reduce Time-in-Cell (Nov. 2016), SSRN No. 2874492. The number in restrictive housing was reported to have decreased from 56,000 in 2015 to 47,000 in 2017.  Looking at specific states, in more than two dozen systems, the numbers in segregation decreased. In 11 systems, the numbers went up.

A related monograph, Working to Limit Restrictive Housing: Efforts in Four Jurisdictions to Make Changes, details the work of four correctional administrations to limit — and in one state abolish — holding people in cells 22 hours a day for 15 days or more.

October 21, 2018 in Data on sentencing, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Wednesday, October 17, 2018

"Evidence-Informed Criminal Justice"

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

The American criminal justice system is at a turning point.  For decades, as the rate of incarceration exploded, observers of the American criminal justice system criticized the enormous discretion wielded by key actors, particularly police and prosecutors, and the lack of empirical evidence that has informed that discretion.  Since the 1967 President’s Commission on Law Enforcement and Administration of Justice report, The Challenge of Crime in a Free Society, there has been broad awareness that the criminal system lacks empirically informed approaches.  That report unsuccessfully called for a national research strategy, with an independent national criminal justice research institute, along the lines of the National Institutes of Health.  Following the report, police agencies continued to base their practices on conventional wisdom or “tried-and-true” methods.  Prosecutors retained broad discretion, relying on their judgment as lawyers and elected officials.  Lawmakers enacted new criminal statutes, largely reacting to the politics of crime and not empirical evidence concerning what measures make for effective crime control.  Judges interpreted traditional constitutional criminal procedure rules in deference to the exercise of discretion by each of these actors.  Very little data existed to test what worked for police or prosecutors, or to protect individual defendants’ rights.

Today, criminal justice actors are embracing more data-driven approaches.  This raises new opportunities and challenges.  A deep concern is whether the same institutional arrangements that produced mass incarceration will use data collection to maintain the status quo. Important concerns remain with relying on data, selectively produced and used by officials and analyzed in nontransparent ways, without sufficient review by the larger research and policy community.  Efforts to evaluate research in a systematic and interdisciplinary fashion in the field of medicine offer useful lessons for criminal justice.  This Article explores the opportunities and concerns raised by a law, policy, and research agenda for an evidence-informed criminal justice system.

October 17, 2018 in Data on sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Monday, October 15, 2018

"How Statistics Doomed Washington State’s Death Penalty"

The title of this post is the title of this new commentary at The Atlantic by Garrett Epps.  Here is an excerpt (with links from the original):

Last week, the Washington Supreme Court, in a fairly pointed opinion, declared that, at least in its jurisdiction, numbers have real meaning.  And to those who have eyes to see, numbers make clear the truth about death-sentencing: It is arbitrary and racist in its application.

The court’s decision was based on two studies commissioned by lawyers defending Allen Gregory, who was convicted of rape and murder in Tacoma, Washington, in 2001 and sentenced to death by a jury there. The court appointed a special commissioner to evaluate the reports, hear the state’s response, and file a detailed evaluation.  The evidence, the court said, showed that Washington counties with larger black populations had higher rates of death sentences—and that in Washington, “black defendants were four and a half times more likely to be sentenced to death than similarly situated white defendants.” Thus, the state court concluded, “Washington’s death penalty is administered in an arbitrary and racially biased manner” — and violated the Washington State Constitution’s prohibition on “cruel punishment.”

The court’s opinion is painstaking — almost sarcastic — on one point: “Let there be no doubt — we adhere to our duty to resolve constitutional questions under our own [state] constitution, and accordingly, we resolve this case on adequate and independent state constitutional principles.”  “Adequate and independent” are magic words in U.S. constitutional law; they mean that the state court’s opinion is not based on the U.S. Constitution, and its rule will not change if the nine justices in Washington change their view of the federal Eighth Amendment.  Whatever the federal constitutionality of the death penalty, Washington state is now out of its misery.  

 Last spring, a conservative federal judge, Jeffrey Sutton of the Sixth Circuit, published 51 Imperfect Solutions: States and the Making of American Constitutional Law,  a book urging lawyers and judges to focus less on federal constitutional doctrine and look instead to state constitutions for help with legal puzzles.  That’s an idea that originated in the Northwest half-a-century ago, with the jurisprudence of former Oregon Supreme Court Justice Hans Linde.  It was a good idea then and it’s a good idea now.  State courts can never overrule federal decisions protecting federal constitutional rights; they can, however, interpret their own state constitutions to give more protection than does the federal Constitution.  There’s something bracing about this kind of judicial declaration of independence, when it is done properly.

Prior related posts:

October 15, 2018 in Data on sentencing, Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, October 12, 2018

Noting the latest data on use of solitary confinement in the US

This recent post at Reason, titled "U.S. Prisons Held At Lest 61,000 Inmates in Solitary Confinement Last Year," by C.J. Ciaramella reports on the latest accounting of extreme version of incarceration in the US. I recommend the full post, which starts this way:

The number of U.S. prison inmates held in solitary confinement has dropped over the past five years, according to a new report, but an estimated 61,000 people last year still faced imprisonment in tiny cells for up to 22 hours a day in conditions that many former inmates, mental health professionals, and at least one sitting U.S. Supreme Court justice say amount to torture.

A longitudinal survey co-authored by the Association of State Correctional Administrators (ASCA) and the Arthur Liman Center for Public Interest Law at Yale Law School found that, in the federal prison system and 43 state prison systems that provided data, 49,000 inmates in the fall of 2017 were confined to what is commonly known as "solitary." Extrapolating for the remaining states, the study estimates the total number to be 61,000.

The census asked jurisdictions to report, as of the fall of 2017, both their total prison populations and the number of prisoners held in restrictive housing. It includes federal and state inmates placed in any form of "restricted housing" for at least 22 hours a day for more than 15 consecutive days. In 2011, the United Nations Special Rapporteur on torture concluded that solitary confinement beyond 15 days constituted cruel and inhumane punishment.

The study's authors attribute the reduction to stricter state requirements for when inmates can be sent to solitary and how long they may be kept there. Colorado, for instance, has almost completely eliminated its use of solitary confinement. The Obama administration also banned the use of solitary confinement for juveniles in the federal prison system and limited the amount of time adults can spend in solitary.  "But the picture is not uniform," the ASCA warned in a press release. "In more than two dozen states, the numbers of prisoners in restrictive housing decreased from 2016 to 2018, but in eleven states, the numbers went up."

October 12, 2018 in Data on sentencing, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Wednesday, October 10, 2018

"Unequal Justice: How Obsolete Laws and Unfair Trials Created North Carolina’s Outsized Death Row"

The title of this post is the title of a new report from the Center for Death Penalty Litigation. Here is a summary of the report from this page at the CDPL website:

The death penalty is all but extinct in North Carolina.  Juries have recommended only a single new death sentence in the past four years.  The state hasn’t carried out an execution since 2006.  Yet, North Carolina has the sixth largest death row in the nation, with more than 140 men and women.  It is a relic of another era.

More than 100 of N.C.’s death row prisoners — about three-quarters — were sentenced in the 1990s, under wildly different laws.  During those years, North Carolina juries sent dozens of people a year to death row, more than Texas. The state’s courtrooms were dominated by prosecutors like Ken Honeycutt in Stanly County, who celebrated new death sentences by handing out noose lapel pins to his assistant prosecutors.

Beginning in 2001, after investigations and DNA testing began to reveal innocent people on death row, a wave of reforms transformed the landscape.  New laws guaranteed capital defendants such basic rights as trained defense attorneys and the right to see all the evidence in their cases.  A court mandate requiring prosecutors to seek death for virtually every first-degree murder — the only such requirement in the nation — was ended.

Today, the death penalty is seen as a tool to be used sparingly, instead of a bludgeon to be wielded in virtually every first-degree murder case.  Yet, new laws and shifting public opinion have had little impact on prisoners sentenced in another era.  The bulk of North Carolina’s death row is now made up of people who were tried 15, 20, even 25 years ago. They are prisoners of a state that has moved on, but has refused to reckon with its past.

CDPL’s report, Unequal Justice, finds that out of 142 death row prisoners in North Carolina:

92% (131) were tried before a 2008 package of reforms intended to prevent false confessions and mistaken eyewitness identifications, which have been leading causes of wrongful convictions across the country.  The new laws require interrogations and confessions to be recorded in homicide cases and set strict guidelines for eyewitness line-up procedures.

84% (119) were tried before a law granting defendants the right to see all the evidence in the prosecutor’s file — including information that might help reduce their sentence or prove their innocence.

73% (104) were sentenced before laws barring the execution of people with intellectual disabilities.  Despite a promise of relief for these less culpable defendants, disabled prisoners remain on death row.

73% (103) were sentenced before the creation of a statewide indigent defense agency that drastically improved the quality of representation for poor people facing the death penalty, and a law ending an unprecedented requirement that prosecutors pursue the death penalty in every aggravated first-degree murder.  Before these changes, prosecutors did not have the ability to seek life sentences in these cases and poor people often received a sub-standard defense.

October 10, 2018 in Data on sentencing, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Wednesday, October 03, 2018

Attorney General Jeff Sessions boasts about federal prosecutors now "running up the score against the criminals"

As of September 27, 2018, the federal prison population was reported at 181,726, the lowest level in more than a dozen years.  But this new speech that Attorney General Jeff Sessions delivered today in Utah suggests it may be only a matter of time before this population is heading up again.  Here is an excerpt that leads me to this view:

Forging new relationships with local prosecutors and building on existing relationships will ensure that the most violent offenders are prosecuted in the most appropriate jurisdiction. Our goal is not to fill up the courts or fill up the prisons.  Our goal is to reduce crime, just as President Trump directed us to do.  Our goal is to make every community safer — especially the most vulnerable....

Our prosecutors in Utah are running up the score against the criminals.  They charged 29 percent more defendants in 2017 than they did in 2014.  That includes 64 percent more drug trafficking defendants, 44 percent more violent crime defendants, and 40 percent more illegal re-entries....

In 2018, the Department of Justice prosecuted more violent criminals than in any year on record.  At the same time, we charged the highest number of federal firearm defendants in history.  Fully 41 percent more gun defendants were prosecuted in fiscal year 2017 than they were just five years before.

This past year we broke our own record — and it wasn’t even close.  Over the last fiscal year — October 1 of 2017 up to September 30, 2018 — the Department of Justice brought charges against 15 percent more violent crime defendants than we did in the previous, record-breaking year.  That’s 20 percent more violent crime defendants than we charged in fiscal 2016.

We also charged nearly 20 percent more firearm defendants than we did in 2017 and 30 percent more than we charged in 2016.  We’ve been so tough on illegal guns that we’re actually getting attacked in the press for it — if you can believe that.

Here’s what the critics don’t understand: we are going after violent felons.  We are targeting the most dangerous people in the most violent areas who have guns....

Law enforcement pays dividends — because when we have safer streets, businesses are more likely to invest and create jobs, property values go up, and the people we serve are more likely to flourish.  And so we are going to keep up this pace.  We are going to keep supporting Utah’s state and local police.  We’re going to keep arming them with the tools, resources, and expertise that they need to protect the people of this city and this state.

October 3, 2018 in Data on sentencing, National and State Crime Data, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (4)

Wednesday, September 26, 2018

Interesting look at data collection and use in prosecutorial decision-making

The folks at the Urban Institute have this interesting new issue brief titled "Collecting and Using Data for Prosecutorial Decisionmaking: Findings from 2018 National Survey of State Prosecutors’ Offices."  Here is how it starts and concludes:

Prosecutorial data collection, data use, and data-driven decisionmaking are subjects of emerging interest among prosecutors, other criminal justice stakeholders, advocates, and policymakers.  How much data are prosecutors collecting?  How are they using data (if at all), and how has that helped decisionmaking?  What resources and infrastructure do prosecutors use, and what barriers prevent effective uses of data?  In early 2018, the Urban Institute surveyed prosecutors’ offices across the country to seek answers to these questions.  Elected prosecutors and staff members responded from 158 offices representing jurisdictions of all sizes, from sparsely populated rural parts of the country to urban areas with more than a million residents....

Across the country, prosecutors and other criminal justice system stakeholders are grappling with how to best use data to improve outcomes.  The findings presented here demonstrate that many prosecutors’ offices collect and use data throughout the case decisionmaking process, from screening to sentencing.  And, many respondents express interest in and a desire to learn more about data collection and how it can be used to improve prosecutorial practices.  Some offices have implemented innovative, data-driven initiatives to better manage their offices and address system-wide trends such as rising crime rates. Nevertheless, significant barriers stand in the way of broader collection and use of data.  A lack of resources and concerns about data accuracy inhibit offices who want to pursue data collection from doing so.  Further investigation into these barriers, as well as the development of innovative solutions to address them, will help expand the practice of data-driven decisionmaking in interested offices.

The analyses presented here demonstrate a relationship between data collection and use. Offices that want to realize the benefits associated with data use must begin by collecting relevant metrics.  By increasing data collection efforts, and later using that data in decisionmaking, prosecutors’ offices can better identify and respond to trends, demonstrate their successes, and link their decisions to safety and justice goals.

September 26, 2018 in Data on sentencing, Detailed sentencing data, Who Sentences | Permalink | Comments (0)

Tuesday, September 25, 2018

New Pew issue brief reviews probation and parole in the US

The folks at Pew have this interesting new Issue Brief titled "Probation and Parole Systems Marked by High Stakes, Missed Opportunities: 1 in 55 adults is under community supervision." Here are excerpts from its "Overview":

Incarceration has long dominated the national conversation on criminal justice, because the U.S. prison population skyrocketed between the 1980s and late 2000s.  Starting in 2007, policymakers seeking to protect public safety, improve accountability, and save taxpayer dollars initiated a wave of bipartisan reforms that has reduced the number of people behind bars in many states.  Yet this movement has largely overlooked the largest part of the correctional system: community supervision.

Nationwide, 4.5 million people are on probation or parole—twice the incarcerated population, including those in state and federal prisons and local jails.  The growth and size of the supervised population has undermined the ability of local and state community corrections agencies to carry out their basic responsibilities to provide the best public safety return on investment as well as a measure of accountability.  Although research has identified effective supervision and treatment strategies, the system is too overloaded to implement them, so it sends large numbers of probationers and parolees back to prison for new crimes or for failure to follow the rules.

As part of a collaborative effort to improve the nation’s community corrections system, The Pew Charitable Trusts and the Laura and John Arnold Foundation analyzed the leading research and identified the most pressing problems and some promising solutions.  The available data leave many questions unanswered, but this review reveals key insights and challenges many assumptions about supervision.  Among the findings:

Community corrections is marked by considerable growth and scale, disproportionate representation of men and people of color, and a majority of people who committed nonviolent offenses....

Improvements in supervision offer opportunities to enhance public safety, decrease drug misuse, and reduce incarceration....

Policy changes can reduce correctional control and improve public safety.

These findings demonstrate the need for greater scrutiny of the community corrections system by policymakers and the public.  They also reinforce an emerging consensus among leading practitioners for a fundamental change in the vision and mission of supervision: from punishing failure to promoting success.

September 25, 2018 in Criminal Sentences Alternatives, Data on sentencing, Reentry and community supervision | Permalink | Comments (0)

Monday, September 24, 2018

US Sentencing Commission releases new report on application of mandatory minimum penalties specific to federal identity theft offenses

6a00d83451574769e201b8d28f7af6970c-320wiVia email, I learned that the US Sentencing Commission has released another big report as part of its terrific series of recent reports diving into the application of federal mandatory minimum sentencing provisions.  This latest report is titled "Mandatory Minimum Penalties for Federal Identity Theft Offenses," and its basic coverage and key findings are outlined on this USSC webpage.  Here are excepts from the summary:

This publication examines the application of mandatory minimum penalties specific to identity theft offenses. Using fiscal year 2016 data, this publication includes analyses of 18 U.S.C. § 1028A, which provides for a two-year mandatory minimum penalty, as compared to identity theft offenses that do not carry mandatory minimum penalties, as well as the impact of these offenses on the Federal Bureau of Prisons (BOP) population....

Key Findings

Mandatory minimum penalties for identity theft offenses are applied less often in the federal system compared to other mandatory minimum penalties.

Offenders convicted under section 1028A comprised only 1.6 percent (n=978) of federal offenders sentenced in fiscal year 2016....

The percentage of identity theft offenders convicted under section 1028A has steadily increased, more than doubling from 21.9 percent in fiscal year 2006 to 53.4 percent in fiscal year 2016. This percentage is more than ten percentage points higher than reported in the Commissions 2011 Mandatory Minimum Report, when it was 42.6 percent....

Sentences imposed pursuant to section 1028A are longer than sentences imposed for identity theft offenses not carrying a mandatory minimum penalty.

In fiscal year 2016, the average sentence length for offenders convicted of at least one count under section 1028A was more than double the average sentence length for offenders convicted of an identity theft offense not carrying a mandatory minimum penalty (51 months compared to 22 months)....

In addition, other charging and plea decisions also play a role in the application and impact of identity theft mandatory minimum penalties....

The average sentence for offenders who were convicted under section 1028A and another statute was more than double the average sentence for offenders convicted only under section 1028A (54 months compared to 22 months)....

The section 1028A mandatory minimum penalty impacts Black offenders more than any other racial group.

Black offenders were convicted under section 1028A at a higher rate than any other racial group. In fiscal year 2016, Black offenders represented 49.8 percent of all identity theft offenders, yet accounted for 58.7 percent of offenders convicted under section 1028A....

Black offenders were also convicted under section 1028A at the highest rate when considering identity theft offenders within each racial group.  In fiscal year 2016, a majority (63.1%) of Black identity theft offenders were convicted under section 1028A, which was higher than the rate for White offenders (47.8%), Other Race offenders (42.0%), and Hispanic offenders (41.1%).

Black offenders were also most likely to be convicted of multiple counts under section 1028A, comprising 58.5 percent of such offenders, followed by White offenders (25.5%), Hispanic offenders (13.2%), and Other Race offenders (2.8%).

Because I do not follow this area of federal sentencing all that closely, I do not know just what to make of the racial data reported here. But I must admit to being persistently discouraged by criminal justice data that persistently shows more application of our toughest penalties against persons of color.

September 24, 2018 in Data on sentencing, Detailed sentencing data, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Race, Class, and Gender | Permalink | Comments (0)

Friday, September 21, 2018

Spotlighting ever-increasing overdose casualties amidst the last four decades of the war on drugs

F2.largeA new article in Science presents some notable data and observations about drug overdoses over the last 40 years in the US.  This article by six public health researchers is titled "Changing dynamics of the drug overdose epidemic in the United States from 1979 through 2016." Here is its full abstract:

INTRODUCTION

The epidemic of substance use disorders and drug overdose deaths is a growing public health crisis in the United States.  Every day, 174 people die from drug overdoses. Currently, opioids (including prescription opioids, heroin, and synthetic opioids such as fentanyl and its chemical analogs) are the leading cause of overdose deaths.  The overdose mortality data can reveal the complex and evolving dynamics of drug use in the United States.

RATIONALE

Reports on the U.S. drug overdose epidemic tend to focus on changes in yearly statistics. Improved understanding of the long-term dynamics of the overdose epidemic may aid in the development of more effective epidemic prevention and control strategies.  At present, there are no reliable methods to forecast the likely future course of the epidemic. We focused on deaths from overdoses as a relatively reliable metric of the epidemic because all deaths are required to be reported in all U.S. states and territories using the standardized International Classification of Diseases.  In an effort to understand the epidemic dynamics and perhaps predict its future course, we analyzed records of 599,255 deaths from 1979 through 2016 from the National Vital Statistics System where unintentional drug poisoning was identified as the main cause of death.  We examined the time course of the overall number of deaths; the contributions of individual drugs (prescription opioids, heroin, synthetic opioids like fentanyl, methadone, cocaine, methamphetamine) to the overall curve; changes in the populations most affected by each drug as measured by demographic factors of age, sex, race, and urbanicity; and changes in the geographic distribution of deaths due to each drug as measured by the county of residence of each decedent.

RESULTS

The overall mortality rate for unintentional drug poisonings in the United States grew exponentially from 1979 through 2016.  This exponentially increasing mortality rate has tracked along a remarkably smooth trajectory (log linear R2 = 0.99) for at least 38 years (left panel). By contrast, the trajectories of mortality rates from individual drugs have not tracked along exponential trajectories.  Cocaine was a leading cause in 2005–2006, which was overtaken successively by prescription opioids, then heroin, and then synthetic opioids such as fentanyl. The demographic patterns of deaths due to each drug have also shown substantial variability over time.  Until 2010, most deaths were in 40- to 50-year-old persons, from cocaine and increasingly from prescription drugs. Deaths from heroin and then fentanyl have subsequently predominated, affecting younger persons, ages 20 to 40 (middle panel).  Mortality rates for males have exceeded those for females for all drugs. Rates for whites exceeded those for blacks for all opioids, but rates were much greater among blacks for cocaine.  Death rates for prescription drugs were greater for rural than urban populations. The geographic patterns of deaths also vary by drug. Prescription opioid deaths are widespread across the United States (right panel), whereas heroin and fentanyl deaths are predominantly located in the northeastern United States and methamphetamine deaths in the southwestern United States. Cocaine deaths tend to be associated with urban centers. The online manuscript provides many details of the patterns of mortality in these data.

CONCLUSION

The U.S. drug overdose epidemic has been inexorably tracking along an exponential growth curve since at least 1979.  Although there have been transient periods of minor acceleration or deceleration, the overall drug overdose mortality rate has regularly returned to the exponential growth curve.  This historical pattern of predictable growth for at least 38 years suggests that the current opioid epidemic may be a more recent manifestation of an ongoing longer-term process.  This process may continue along this path for several more years into the future. Paradoxically, there has been substantial variability with which specific drugs have become dominant in varying populations and geographic locales.  This variability all but negates the possibility of confident predictions about the future role of specific drugs.  Indeed, it is possible that a future overdose epidemic may be driven by a new or obscure drug that is not among the leading causes of drug overdose death today. Understanding the forces that are holding multiple subepidemics together onto a smooth exponential trajectory may be important in revealing, and effectively dealing with, the root causes of the epidemic.

Critically, this article makes no effort to suggest any link between overdose data and modern criminal law enforcement efforts described as the "war on drugs." But I still find remarkable that these data in the article start with a relatively low overdose rate right before the Reagan Administration kicked the war on drugs into high gear. If preventing or reducing deaths from drug overdoses is one goal of the the drug war, this article spotlights just how poorly we have been doing on this particular front of the war over the last four decades.

Recent prior related post:

September 21, 2018 in Data on sentencing, Drug Offense Sentencing, National and State Crime Data, Purposes of Punishment and Sentencing | Permalink | Comments (1)

Thursday, September 20, 2018

Brennan Center reports on encouraging 2018 crime data based on preliminary data from largest 30 US cities

The folks at the Brennan Center for Justice have this notable new report, titled "Crime and Murder in 2018: A Preliminary Analysis," which finds that "across the cities where data is available, the overall murder and crime rates are projected to decline in 2018." Here is more from the start of the short and heartening report:

This report analyzes available crime data from police departments in the 30 largest U.S. cities.  It finds that across the cities where data is available, the overall murder and crime rates are projected to decline in 2018, continuing similar decreases from the previous year.  This report is based on preliminary data and is intended to provide an early snapshot of crime in 2018 in the 30 largest cities. This data will be updated in later reports.

Declines in homicide rates appear especially pronounced in cities that saw the most significant spikes during 2015 and 2016.  These findings directly undercut claims that American cities are experiencing a crime wave. Instead, they suggest that increases in the murder rate in 2015 and 2016 were temporary, rather than signaling a reversal in the long-term downward trend....

Murder: The 2018 murder rate in these cities is projected to be 7.6 percent lower than last year.  This estimate is based on data from 29 of the nation’s 30 largest cities. This murder rate is expected to be approximately equal to 2015’s rate, near the bottom of the historic post-1990 decline....

Overall Crime: At the time of publication, full crime data — covering all Part I index crimes tracked by the FBI — were only available from 19 of the 30 largest cities. (Past Brennan Center reports included, on average, 21 cities.) In these cities, the overall crime rate for 2018 is projected to decrease by 2.9 percent, essentially holding stable. If this estimate holds, this group of cities will experience the lowest crime rate this year since at least 1990.  These findings will be updated with new data when available.

This report does not present violent crime data because the authors could not collect sufficient data by the time of publication.

September 20, 2018 in Data on sentencing, National and State Crime Data | Permalink | Comments (0)

Saturday, September 15, 2018

Reviewing the continued ugly realities of the application of the Armed Career Criminal Act

Running this week at The Appeal is this notable piece with stories and data on the application of the federal Armed Career Criminal Act.  The piece is headlined in full "Man Sentenced As ‘Career Criminal’ Gets His First Chance At Freedom In 48 Years: Despite a 2015 Supreme Court ruling limiting the mandatory minimum law, few people are seeing relief." I recommend the piece in full, and found this data discussion especially interesting:

A run of Supreme Court decisions capped by the 2015 ruling brought relief to some prisoners who were sentenced under ACCA.  The ruling found part of the act to be unconstitutionally vague — it wasn’t clear what qualified a defendant as a “career criminal.” The decision made hundreds of prisoners serving ACCA-enhanced sentences eligible for resentencing.

The Supreme Court limited the prior convictions that qualified a person for sentencing under the act. It did not eliminate prosecutors’ ability to seek ACCA-enhanced sentences, and U.S. attorney’s offices in a handful of jurisdictions continue to regularly use the enhancement against defendants with prior convictions for drug dealing and qualifying violent crimes....

Three years after the Supreme Court decision, prosecutors continue to use ACCA mandatory sentences in patterns that vary significantly from state to state. Whether a defendant faces an ACCA sentence depends on who is prosecuting.  Prosecutors in California won just one ACCA sentence in 2016, while New York had only two prosecutions.  Florida had 61; Missouri had 29 and Tennessee had 26.  Washington state had one ACCA prosecution in 2016.

“It is incredibly arbitrary,” said Molly Gill, vice president for policy at FAMM, an advocacy organization opposed to mandatory sentences.  “One of the ideas behind mandatory minimums … is that they increase the certainty of punishment,” Gill told The Appeal. “When you look at how the law’s applied, that’s really not true.”

Black defendants are far more likely to receive ACCA-enhanced sentences.  According to U.S. Sentencing Commission statistics, 70 percent of defendants sentenced under the act in 2016 were Black.  Whites, who outnumbered Black defendants that year, accounted for 24 percent of ACCA-enhanced sentences.

Severe sentences and mandatory minimums have long been faulted as unnecessary; the U.S. Sentencing Commission found them onerous and inconsistently applied. They also deliver a compelling advantage to prosecutors during negotiations.

Questioning the government during oral arguments in Johnson v. United States, the case that resulted in the 2015 ruling, Chief Justice John Roberts commented that defendants facing a 15-year minimum will take a deal. “You said … because there are so many years involved, people will litigate hard,” Roberts remarked to Deputy Solicitor General Michael Dreeben during the April 2015 hearing.  “I think because there are so many years involved, people won’t litigate at all. … It gives so much more power to the prosecutor in the plea negotiations.”

About 97 percent of defendants convicted in federal court plead guilty prior to trial. Though ACCA sentences have been declining in recent years, 304 people were sentenced under the act in 2016.

September 15, 2018 in Data on sentencing, Gun policy and sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing | Permalink | Comments (3)

Thursday, September 13, 2018

"Can We Downsize Our Prisons and Jails Without Compromising Public Safety? Findings from California's Prop 47"

The title of this post is the title of this new article in Criminology & Public Policy authored by Bradley Bartos and Charis Kubrin. Here is its abstract:

Research Summary

Our study represents the first effort to evaluate systematically Proposition 47's (Prop 47's) impact on California's crime rates.  With a state‐level panel containing violent and property offenses from 1970 through 2015, we employ a synthetic control group design to approximate California's crime rates had Prop 47 not been enacted.  Our findings suggest that Prop 47 had no effect on homicide, rape, aggravated assault, robbery, or burglary.  Larceny and motor vehicle thefts, however, seem to have increased moderately after Prop 47, but these results were both sensitive to alternative specifications of our synthetic control group and small enough that placebo testing cannot rule out spuriousness.

Policy Implications

As the United States engages in renewed debates regarding the scale and cost of its incarcerated population, California stands at the forefront of criminal justice reform.  Although California reduced its prison population by 13,000 through Prop 47, critics argue anecdotally that the measure is responsible for recent crime upticks across the state.  We find little empirical support for these claims. Thus, our findings suggest that California can downsize its prisons and jails without compromising public safety.

The authored of this research also have this new commentary in Governing headlined "The Myth That Crime Rises as Prisons Shrink: California's dramatic reduction in its prison populations hasn't compromised public safety." Here is an excerpt:

Approved by the voters in 2014, Prop 47 was controversial from the start. It downgraded the lowest-level non-violent drug and petty-theft crimes from felonies to misdemeanors. Critics warned that the measure would embolden would-be criminals as felony arrests throughout the state plummeted.  After Prop 47 went into effect in 2014, lowering prison populations by 13,000, that controversy only escalated.  Soon law-enforcement officials were calling for the measure to be repealed.  They blamed rising crime rates on Prop 47.

But the science doesn't support the assertion that Prop 47 is to blame. We recently published a study that was the first effort to systematically evaluate Prop 47's impact on crime in California.  Our research found that the proposition had no appreciable impact on crime in the year following its enactment.

September 13, 2018 in Data on sentencing, Detailed sentencing data, National and State Crime Data, Scope of Imprisonment | Permalink | Comments (2)

Thursday, September 06, 2018

Noting the uptick in federal gun prosecutions

This Courthouse News Service piece, headlined "Trump Administration Steps Up Prosecution of Gun Crimes," reports on and contextualizes this recent TRAC data report titled "Weapons Prosecutions Continue to Climb in 2018." Here are excerpts from the press piece:

Though Donald Trump ran on a pro-gun, Second Amendment platform, a recent study from Syracuse University shows the administration has stepped up prosecutions of weapons offenses, bringing 8,403 such cases in the first 10 months of fiscal year 2018, a 22.5 percent increase from the previous year.

TRAC Reports, a data-gathering organization at Syracuse University, also reported last week that that nation’s 94 U.S. Attorney’s Offices have prosecuted 41.3 percent more weapons cases than they did 5 years ago, under the Obama Administration.

Attorney General Jeff Sessions told the National District Attorneys Association in July 2017: “I want to see a substantial increase in gun crime prosecutions. I believe, as we partner together and hammer criminals who carry firearms during crimes or criminals that possess firearms after being convicted of a felony, the effect will be to reduce violent crime.”

The Bureau of Alcohol, Tobacco and Firearms handles the lion’s share of prosecutions, the TRAC study said: 64 percent of the prosecutions were recommended by BATF....

In addition to prosecuting people who use guns during crimes, Sessions said prosecutors also are targeting people who are prohibited from owning firearms, such as felons, and guns that are illegal in themselves, such as those with serial numbers scratched off....

However, David Kennedy, director of the National Network for Safe Communities at John Jay College, said the focus on prosecuting federal firearms offenses to too simplistic, because U.S. Attorney’s Offices do too little on their own to deter crime. Most gun crimes are first handled by state and federal law enforcement, Kennedy said, and federal attorneys prosecute the cases they choose to adopt, which is a fraction of the larger pool of gun-related offenses.

“What goes to federal and what doesn’t is effectively completely unpredictable on the street,” Kennedy told Courthouse News. “So if you’re somebody walking around in the community and you’re thinking whether or not to carry a gun or whether to commit a gun crime, you may not even know that the federal policy has changed. If you’re not aware that the U.S. attorney is taking more of these cases, it’s not going to affect your behavior.”

By the time charges are leveled and the accused is standing in a federal courtroom, it’s too late for them to change their behavior, Kennedy said. He said one unintended consequence of focusing on firearm prosecutions is that young, urban black men are overwhelmingly targeted by prosecutors, which makes the communities in which they live more distrustful of police and law enforcement.

Instead of focusing on gun prosecution, Kennedy said, it would be more effective if law enforcement seeks to identify the people most likely to commit violent crime and engage in outreach. He cited Oakland, California’s Operation Ceasefire, which identified the less-than 1 percent of Oakland residents who were associated with two-thirds of the city’s gun violence and provided them with coaching, social services, jobs and other assistance.

September 6, 2018 in Data on sentencing, Gun policy and sentencing, Who Sentences | Permalink | Comments (0)

Wednesday, September 05, 2018

"Decarceration Strategies: How 5 States Achieved Substantial Prison Population Reductions"

The title of this post is the title of this new 50-page report by The Sentencing Project. Here is the start of its executive summary:

From 1980 until its peak in 2009, the total federal and state prison population of the United States climbed from about 330,000 to more than 1.6 million — a nearly 400% increase  — while the total general population of the country grew by only 36%, and the crime rate fell by 42%.  The catalyst of this prison expansion was policy changes that prioritized “getting tough” on crime. 

The national prison population began a gradual descent after 2009, lessening by nearly 113,000 (6%) from 2009 through 2016.  Several factors contributed to this decline: ongoing decreases in crime rates leading to fewer felony convictions; scaling back “war on drugs” policies; increased interest in evidence-based approaches to sentencing and reentry; and growing concerns about the fiscal cost of corrections and its impact on other state priorities.  The state of California alone was responsible for 36% of the overall population decline, a function of a 2011 U.S. Supreme Court ruling declaring its overcrowded prison system to be unconstitutional and subsequent legislative responses to reduce the use of state incarceration.

Despite the decline, the overall pace of change is quite modest.  A recent analysis documents that at the rate of change from 2009 to 2016 it will take 75 years to reduce the prison population by half.  And while 42 states have experienced declines from their peak prison populations, 20 of these declines are less than 5%, while 8 states are still experiencing rising populations.

To aid policymakers and criminal justice officials in achieving substantial prison population reductions, this report examines the experience of five states – Connecticut, Michigan, Mississippi, Rhode Island, and South Carolina — that have achieved prison population reductions of 14-25%.  This produced a cumulative total of 23,646 fewer people in prison with no adverse effects on public safety. (While a handful of other states have also experienced significant population reductions — including California, New York, and New Jersey —  these have been examined in other publications, and so are not addressed here.

The five states highlighted in this report are geographically and politically diverse and have all enacted a range of shifts in policy and practice to produce these outcomes.  All five were engaged in the Justice Reinvestment Initiative process, spearheaded by the Pew Charitable Trusts and the Council on State Governments, which was designed to work with stakeholders to respond to the driving forces of prison expansion in each state and to develop strategies for change in policy and practice.

This report seeks to inform stakeholders in other states of the range of policy options available to them for significantly reducing their prison population.  While we provide some assessment of the political environment which contributed to these changes, we do not go into great detail in this area since stakeholders will need to make their own determinations of strategy based on the particularities of their state.  We note, though, that the leaders of reform varied among states, and emerged among governors, legislators, criminal justice officials, and advocacy organizations, often benefiting from media coverage and editorial support.

The prison population reductions in these five states were achieved through data-driven policy reforms that pursued bipartisan consensus.  Changes were advanced in the areas of risk and needs assessment, community supervision, alternatives to incarceration, sentencing and sanctions, prison release mechanisms, prisoner reentry and community reintegration.

Five key strategies and practices that were employed in these states are summarized below, followed by extensive reviews for each of the five states.

September 5, 2018 in Data on sentencing, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Monday, September 03, 2018

Noticing latest USSC data on retroactive impact of "drugs -2" guideline amendment

Just before the long weekend, I saw that the US Sentencing Commission's website has this new data document titled simply "2014 Drug Guidelines Amendment Retroactivity Data Report." This report, dated August 2018, provides updated "information concerning motions for a reduced sentence pursuant to the retroactive application of Amendment 782. The data in this report reflects all motions decided through July 31, 2018, and for which court documentation was received, coded,and edited at the Commission by August 23, 2018."

The official data in the report indicate that, thanks to the USSC's decision to make Amendment 782 (the so-called "drugs -2" guideline amendment) fully retroactive, now 31,381 federal prisoners have had their federal drug prison sentences reduced by an average of 25 month.  (Notably, this federal register document reports that the "average cost of incarceration for Federal inmates was $34,704.12 ($94.82 per day) in FY 2016 and $36,299.25 ($99.45 per day) in FY 2017."   This "average cost" number is a very imperfect proxy for the actual prison cost savings from reduced sentences resulting from the retroactive drugs-2 guideline amendment, but it suggests federal taxpayers have saved billions in prison costs thanks to drugs -2 retroactivity.)  

Among other impacts, the the drugs -2 amendment and its retroactivity are likely key contributors to a continued decline in the federal prison population.  The amendment was in 2014, and its  retroactivity became effective in November 2015.  In Fiscal Year 2014, the federal prison population clocked in at 214,1495, and in Fiscal Year 2015 the federal prison population was down to 205,723.  By Fiscal Year 2016, the federal prison population dropped all the way down to 192,170; by Fiscal Year 2017, the federal prison population was down further to 185,617.  As as of August 30, 2018, the federal prison population was at 182,797.  (All theses data come from this Bureau of Prisons webpage.)   I keep expecting and waiting for the policies and practices of Attorney General Jeff Sessions to turn around this recent steady decline in the federal prison population, but is seems the "drugs -2" guideline amendment, its retroactivity and other forces have keep a downward pressure on the federal prison population for the time being.

September 3, 2018 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines | Permalink | Comments (2)

Sunday, September 02, 2018

"Prosecuting in the Shadow of the Jury"

The title of this post is the title of this new paper authored by Anna Offit available via SSRN. Here is its abstract:

This article offers an unprecedented empirical window into prosecutorial discretion drawing on long-term participatory research between 2013 and 2017.  The central finding is that jurors play a vital role in federal prosecutors’ decision-making, professional identities, and formulations of justice.  This is because even the remote possibility of lay scrutiny creates an opening for prosecutors to make common sense assessments of (1) the evidence in their cases, (2) the character of witnesses, defendants and victims, and (3) their own moral and professional character as public servants.

By facilitating explicit consideration of the fairness of their cases from a public vantage point, I argue that imagined jurors serve as an ethical resource for prosecutors.  Part I reviews contemporary legal and interdisciplinary research on the declining number of jury trials and prosecutorial discretion in the United States.  Part II describes the ethnographic research method deployed in this case study, noting its unique capacity to document off the record decision-making practices.  Part III presents the empirical findings of this study with attention to how hypothetical jurors inform prosecutors' evaluations of their cases, evidence, investigations, and plea agreement discussions.  Part IV considers several explanations for hypothetical jurors' perceived relevance to prosecutors' work beyond their instrumental and strategic value.  Part V concludes that the U.S. Attorney’s Office that is the subject of this study models the democratizing potential of lay decision-makers, even in hypothetical form.  This finding contributes a novel rationale for fortifying the U.S. jury system and a novel perspective to the study of prosecutorial ethics.

September 2, 2018 in Data on sentencing, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Wednesday, August 29, 2018

"More Cops, Fewer Prisoners?"

The title of this post is the title of this notable new paper authored by Jacob Kaplan and Aaron Chalfin now available via SSRN. Here is the abstract:

A large literature establishes that hiring police officers leads to reductions in crime and that investments in police are a relatively efficient means of crime control compared to investments in prisons.  One concern, however, is that because police officers make arrests in the course of their duties, police hiring, while relatively efficient, is an inevitable driver of “mass incarceration."  This research considers the dynamics through which police hiring affects downstream incarceration rates.

Using state-level panel data as well county-level data from California, we uncover novel evidence in favor of a potentially unexpected and yet entirely intuitive result — that investments in law enforcement are unlikely to markedly increase state prison populations and may even lead to a modest decrease in the number of state prisoners.  As such, investments in police may, in fact, yield a “double dividend” to society, by reducing incarceration rates as well as crime rates.

August 29, 2018 in Data on sentencing, Scope of Imprisonment | Permalink | Comments (4)

Monday, August 20, 2018

"America’s Favorite Antidote: Drug-Induced Homicide in the Age of the Overdose Crisis"

The title of this post is the title of this notable and timely new paper authored by Leo Beletsky and now available via SSRN.  Here is its abstract:

Nearing the end of its second decade, the overdose crisis in the United States has gone from bad to worse.  Despite the advent of a supposed “public health” approach to this epidemic, progress on scaling up evidence-based prevention and response measures remains slow.  Meanwhile, criminal law and its enforcement continue to dominate the arsenal of policies invoked to address the crisis.

This Article examines the surging popularity of one such approach. Now on the books in the majority of U.S. states and federally, drug-induced homicide laws and their analogues implicate dealers in accidental overdose fatalities.  By engaging criminal law theory and empirical legal research, I articulate an interdisciplinary instrumentalist critique of these measures in response to the overdose crisis.  Data systematically extracted from reports on 263 drug-induced homicide prosecutions informs concerns about facial and as-applied defects.  Patterns identified suggest rapid, accelerating diffusion in these prosecutions in many hard-hit jurisdictions; pronounced enforcement and sentencing disparities by race; and broad misclassification of drug-using partners, family members, and others as “dealers.”

Aside from crowding out evidence-based interventions and investments, these prosecutions run at complete cross-purposes to efforts that encourage witnesses to summon lifesaving help during overdose events.  This analysis illustrates an urgent opportunity to critically re-assess the architecture and mechanisms of drug control in the U.S., reframing criminal justice reform as a public health imperative vital to improving the response to the worst drug crisis in America’s history.

UPDATE: Over at The Crime Report, this short report discusses this article under the headline "Prosecuting Dealers for Opioid Deaths Called ‘Bad Justice Policy’."

August 20, 2018 in Data on sentencing, Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (1)

Friday, August 17, 2018

New research finds racial bias infects sex-offender classification system under SORNA

A helpful reader made sure I did not miss this Crime Report piece headlined "Sex Offender Registration Influenced by Racial Bias, Ohio Study Claims." Here are excerpts:

The classification of sex offenders based on the risks they pose to the community following their release from prison is subject to racial bias, according to a study published in the Criminal Justice Policy Review.  African-American sex offenders were found to be two-and a half times likelier to be inaccurately designated as high-risk than their Caucasian counterparts by a state-sponsored risk-assessment instrument, said the study, which was based on a sample of 673 sex offenders in the state of Ohio who were convicted of a sex crime and released between 2009 and 2011.

Risk assessments that were overly weighted towards prior criminal records led to the skewed assessments, argued the authors, Bobbie Ticknor of Valdosta State University, and Jessica J. Warner of Miami University Regionals.  “Approximately 85 percent of the individuals classified in the highest tier, who theoretically posed the greatest danger, did not have a conviction for a new sex offense after the five-year follow up period,” the study found, adding that 15 percent of “Tier 1” offenders were under-classified, meaning their threat-level was underestimated.

The sample was limited to offenders who had received a classification under the Sex Offender Registration and Notification Act (SORNA) system established by the 2006 Adam Walsh Child Protection and Safety Act.  The law established guidelines aimed at protecing communities from convicted sex offenders who might pose continued threats to their community following release. SORNA is an offense-based classification system where offenders are assigned to one of three tiers according to “dangerousness.”  Tier designation is determined by prior offenses and the severity of the charge and conviction.... 

The reason why racial bias may influence the accuracy of SORNA designations lies in the fact that SORNA relies heavily on the criminal history of an individual, said the authors. The study cites prior research which produced evidence that “black defendants are less likely to accept a plea deal due to mistrust in the system…”  Going to trial increases the chances of being found guilty of more severe charges and receiving lengthier sentences, especially for minority defendants, according to the authors.

The study being discussed here is available at this link and is published under the title "Evaluating the Accuracy of SORNA: Testing for Classification Errors and Racial Bias." Here is its abstract:

Since its enactment in 2006, several researchers have explored whether the Sex Offender Registration and Notification Act (SORNA) classification system under the Adam Walsh Act improves outcomes such as increasing public safety and lowering recidivism of sexual offenders.  This study adds to the growing body of literature by exploring how accurate this offense-based classification system is in terms of recidivism and if there is any racial bias in tier designation.

Specifically, results from contingency analyses suggest that several sex offenders are overclassified, meaning that they were given a classification status that included more supervision and oversight although they did not commit another offense. Furthermore, African Americans were two-and-a-half times more likely to be overclassified than Caucasians which suggests racial bias may exist in this government-sponsored classification system.  Implications for communities and the continued use of the SORNA are presented.

August 17, 2018 in Collateral consequences, Criminal Sentences Alternatives, Data on sentencing, Detailed sentencing data, Race, Class, and Gender, Sex Offender Sentencing | Permalink | Comments (0)

Wednesday, August 15, 2018

"Nowhere to Go: Homelessness among formerly incarcerated people"

The title of this post is the title of this notable new Prison Policy Initiative report which gets started this way:

It’s hard to imagine building a successful life without a place to call home, but this basic necessity is often out of reach for formerly incarcerated people.  Barriers to employment, combined with explicit discrimination, have created a little-discussed housing crisis.

In this report, we provide the first estimate of homelessness among the 5 million formerly incarcerated people living in the United States, finding that formerly incarcerated people are almost 10 times more likely to be homeless than the general public.  We break down this data by race, gender, age and other demographics; we also show how many formerly incarcerated people are forced to live in places like hotels or motels, just one step from homelessness itself.

August 15, 2018 in Data on sentencing, Offender Characteristics, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (1)

Tuesday, August 14, 2018

Highlighting how many states have the death penalty in the books without an active execution chamber

John Gramlich at Pew Research Center has this new FactTank piece headlined "11 states that have the death penalty haven’t used it in more than a decade." Here are excerpts (with a few facts highlighted):

Tennessee carried out its first execution since 2009 this month and Nebraska soon may carry out its first since 1997.  The two states underscore the fact that while a majority of jurisdictions in the United States have capital punishment on the books, a considerably smaller number of them use it regularly.

Overall, 31 states, the federal government and the U.S. military authorize the death penalty, while 19 states and the District of Columbia do not, according to the Death Penalty Information Center, an information clearinghouse that has been critical of capital punishment.  But 11 of the states that allow executions — along with the federal government and the U.S. military — haven’t had one in at least a decade.

Nebraska, in fact, is among seven states that have the death penalty but haven’t carried out an execution in at least 15 years. New Hampshire hasn’t executed an inmate since 1939; the other states in this category are Kansas (last execution in 1965), Wyoming (1992), Colorado and Oregon (both 1997), and Pennsylvania (1999).  Executions have occurred somewhat more recently — though still more than a decade ago — in California, Montana, Nevada and North Carolina (all in 2006).

The last federal execution also took place more than 15 years ago, in March 2003.  While the U.S. military retains its own authority to carry out executions, it hasn’t done so since 1961.

All 11 states that have the death penalty but haven’t used it in at least a decade have inmates on death row, as do the federal government and U.S. military.  The size of these death row populations ranges from just one inmate each in New Hampshire and Wyoming to 744 in California, which has by far the largest death row in the nation.

California’s death row has grown by nearly 100 inmates, or 15%, since January 2006, when it carried out its last execution, and by nearly 30% since 2000, according to the NAACP Legal Defense and Educational Fund, which tracks death row populations for all states.  The increase reflects the fact that California juries have continued to sentence convicted defendants to death even as executions themselves have been on hold in recent years amid legal and political disputes....

The federal government’s death row has also grown substantially since the last federal execution.  There are currently 63 federal inmates sentenced to death, up from 26 in January 2003 (just before the federal government’s most recent execution).

I have highlighted the federal piece of this notable story of execution desuetude because I had thought that Prez Donald Trump and AG Jeff Sessions might seriously try to make America execute again.  But I have not seen any effort or even any discussion by federal officials to have any federal death sentences actually carried out.  As I have noted before, this Death Penalty Information Center list of federal death row prisoners reveals that some sentenced to death have been languishing on death row for a full quarter-century and a number of others have been that for at least two decades.  Because I doubt that Prez Trump and AG Sessions are secret abolitionists, I suspect that there is something going on behind the scenes that is keeping federal justice delayed.  But I still find it notable and a bit curious that the federal death penalty still now does not really exist, practically speaking.

August 14, 2018 in Baze and Glossip lethal injection cases, Data on sentencing, Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (4)

Monday, August 13, 2018

"Algorithmic Risk Assessments and the Double-Edged Sword of Youth"

The title of this post is the title of this new paper authored by Megan Stevenson and Christopher Slobogin now available via SSRN. Here is the abstract:

At sentencing, youth can be considered both a mitigating circumstance because of its association with diminished culpability and an aggravating circumstance because of its association with crime-risk.  In theory, judges and parole boards can recognize this double-edged sword phenomenon and balance the mitigating and aggravating effects of youth. But when sentencing authorities rely on algorithmic risk assessments, a practice that is becoming increasingly common, this balancing process may never take place.

Algorithmic risk assessments often place heavy weights on age in a manner that is not fully transparent -- or, in the case of proprietary “black-box” algorithms, not transparent at all.  For instance, our analysis of one of the leading black-box tools, the COMPAS Violent Recidivism Risk Score, shows that roughly 60% of the risk score it produces is attributable to age.  We argue that this type of fact must be disclosed to sentencing authorities in an easily-interpretable manner so that they understand the role an offender’s age plays in the risk calculation.  Failing to reveal that a stigmatic label such as “high risk of violent crime” is due primarily to a defendant’s young age could lead to improper condemnation of a youthful offender, especially given the close association between risk labels and perceptions of character and moral blameworthiness.

August 13, 2018 in Data on sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Sunday, August 12, 2018

Rounding up a few notable recent commentaries

Will I was on the road last week, I saw a lot of interesting commentaries that I might have blogged had I had regular internet access. Instead, now that I am back on-line, I will be content with this round-up of commentary headlines and links:

David Eads, "Too Many Politicians Misuse and Abuse Crime Data"

Craig DeRoche, "The Church Should Push Federal Criminal Justice Reform Bill to the Finish Line"

Tim Head, "FIRST STEP Act is smart legislation — perfect for prison reform"

Glenn Harlan Reynolds, "The next step in criminal justice reform is fewer laws"

Bruce Western, "Violent offenders, often victims themselves, need more compassion and less punishment"

August 12, 2018 in Data on sentencing, Prisons and prisoners | Permalink | Comments (0)

Thursday, August 02, 2018

"Capitalizing on Mass Incarceration: U.S. Growth in Private Prisons"

The title of this post is the title of this new report from The Sentencing Project. Here is part of its "Overview" and "Key Findings":

From 2000 to 2016 the number of people housed in private prisons increased five times faster than the total prison population. Over a similar timeframe, the proportion of people detained in private immigration facilities increased by 442 percent.

The federal government and 27 states utilized private prisons operated by for-profit and non-profit entities during 2016. New Mexico and Montana led the nation in their reliance on private prisons with 43 percent and 39 percent of their prison populations, respectively, housed within them (See Table 2).  Between 2000 and 2016, eight states – Arkansas, Kentucky, Maine, Michigan, Nevada, North Dakota, Utah and Wisconsin -- eliminated their use of private prisons due to concerns about safety and cost cutting.  In 2016, Louisiana changed the classification of its contracted beds and reported its private prison population as zero for the first time during this period.  Alternatively, five states -- Alabama, Connecticut, Pennsylvania, South Carolina and Vermont -- began contracting with private prisons between 2000 and 2016.

The federal government is the single largest user of private prisons in the United States but has reduced its population in private prisons in recent years.  However, in 2017 Attorney General Jeff Sessions withdrew an Obama-era directive to phase out private prison contracting because of concern for the federal correctional system’s ability “to meet future needs.”

This report provides a portrait of private prisons as a component of the American corrections landscape and assesses its impact on mass incarceration.  Among its most striking features is the broad variation found across jurisdictions in reliance on private prisons.  As outlined in the state case studies examining the history of prison privatization in Florida, New Mexico, New York, North Carolina and Texas (available in the appendix), those corrections systems most committed to the industry have faced controversy, including riots, deaths, and allegations of improper financial influence from for-profit prison companies....

KEY FINDINGS:

• Of the total U.S. prison population, one in 12 people (128,063) was incarcerated in private prisons in 2016; an increase of 47 percent since 2000.

• 26,249 people were also confined in privately-run immigration detention facilities in fiscal year 2017; a 442 percent increase since 2002.

• Federal prisons incarcerated the largest number of people in private prisons, 34,159, marking a 120 percent increase since 2000.

• The largest private prison corporations, Core Civic and GEO Group, collectively manage over half of the private prison contracts in the United States with combined revenues of $3.5 billion as of 2015.

• Companies often trim prison budgets by employing mostly non-union and lowskilled workers at lower salaries and offer limited benefits compared to staff at publicly run institutions.

• Cost savings claims associated with prison privatization are unfounded according to decades of research.

August 2, 2018 in Data on sentencing, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Saturday, July 28, 2018

Interesting early information from the Safe Streets & Second Chances effort to take an evidence-driven approach to recidivism

Sssc_socialIn this post from January, I spotlighted the Safe Streets & Second Chances initiative which describes itself as an "an innovative program that takes an evidence-driven approach to the chronic issues of repeat offenders and recidivism, using academic research to craft individualized reentry plans that shift the ultimate measure of success from whether individuals are punished to whether these individuals are improved, rehabilitated, and capable of redemption."  This new Washington Post piece, headlined "Koch network project gears up to help inmates reenter society after prison," provides an interesting update on the project:

A new project funded by the network aligned with billionaire industrialist Charles Koch is tracking and monitoring 1,100 inmates in four states after they are released from prison starting Aug. 1 to help them successfully reintegrate into society.

Through the project, called Safe Streets and Second Chances, a team of researchers from Florida State University will evaluate former inmates for 15 months after their release — a volatile period that often leads to their rearrest. The project is in its $4 million pilot phase, as researchers prepare to test the effectiveness of a new reentry model that focuses on individualized plans to help inmates find healthy coping and thinking patterns, the right employment opportunities, and positive social engagement.

For the past six months, the researchers have been interviewing the men and women in the program, who are currently housed in 48 prisons in rural and urban areas in Texas, Florida, Pennsylvania and Kentucky. They will present the early findings today in Colorado, at the twice-annual meeting of the network’s largest donors....

The network is advocating a shift in the criminal justice system toward prioritizing rehabilitation and reducing recidivism, rather than focusing on punishment. For years, the network has pushed for bipartisan support for overhauling the criminal justice system, and has teamed up with Van Jones, a former Obama administration official and CNN political commentator, for the cause....

With the research conducted through Safe Streets and Second Chances, network officials say they want to transform the way reentry programs are run in communities across the country. “What we’re trying to do is to prepare prisoners to reenter society and become productive members and taxpaying citizens, hopefully living productive lives and taking care of their families,” said Doug Deason, a Dallas businessman and Koch network donor who is on the advisory council of Safe Streets and Second Chances.

After interviewing the inmates preparing for release, researchers found these prisoners overwhelmingly felt optimistic about their chances of rehabilitation in life outside prison but generally had high levels of trauma. Nearly 70 percent of people in the program reported seeing someone seriously injured or killed. Half the inmates had seen or handled dead bodies — more than a dozen times for some male prisoners. The majority of them reported having a close friend or family member who was murdered, and 58 percent reported having a drug use disorder.

People with untreated trauma symptoms are more likely to become impulsive and incorrectly perceive threats to themselves and others, which could lead to an act of crime and recidivism, according to Carrie Pettus-Davis, a Florida State University professor and the lead researcher. It also could affect their ability to navigate the laws restricting felons from employment, housing and education opportunities, she said.

“Despite all of the positive orientations and aspirations, this population also is really dealing with some very challenging circumstances,” Pettus-Davis said. “There’s an enormous amount of trauma represented for both men and women. ... Once people become incarcerated, we need to make sure we’re appropriately responding to experiences of psychological trauma.”

Lots of information and data about and from this project can be found in this new release from Safe Streets & Second Chances under the title "New Research Shows Incarcerated Individuals Want to Be Rehabilitated and Are Hungry for Second Chances as They Reenter Society." Here are excerpts (with links from the original):

Incarcerated individuals want to be rehabilitated, are eager for a second chance, and are emotionally capable of successfully reentering society, new independent data shows.

According to statistics compiled by Florida State University (FSU) researchers, both male and female participants said they want to work more, learn more, and spend more time on personal relationships, improving their health, and practicing their faith than they currently do while incarcerated. They also reported fairly high levels of emotional well-being, suggesting that they are primed to successfully rejoin society upon their release....

According to the data, inmates want to rehabilitate themselves through work, education, and faith, and spend more time on personal relationships.

  • Respondents expressed a desire to work or improve their work situation.
    • Men reported working about two hours a day but said they would like to work almost four times that amount.
    • Women reported working almost 1.5 hours per day but said they’d like to work over three times that amount.
  • Overall, respondents said they’d like to spend twice the amount of time they currently spend on school activities.
  • Both men and women said they want to devote more time to community involvement and spend twice as much time working on personal relationships.
  • Both groups said they’d like to spend more time each week on spiritual or religious activities.

Next, while individuals said they had experienced a generally high level of trauma in life, they also reported a fairly high level of emotional well-being.

  • Nearly 70 percent of participants said they had seen someone seriously injured or killed.
  • 50 percent said they had seen dead bodies (other than at a funeral) or had to handle dead bodies. Male respondents reported experiencing this an average of over 17 times.
  • Over 40 percent said they had been attacked with a gun, knife, or some other weapon by someone, including a family member or friend.
  • About 57 percent said that a close friend or family member had been murdered.
  • Over 32 percent of female respondents said they had been forced to have intercourse or another form of sex against their will.
  • On average, females reported having experienced sexual abuse as a child 8.88 times.
  • 58 percent reported having a drug use disorder, while 35 percent reported having an alcohol use disorder.
  • While both men and women reported similar levels of childhood emotional abuse, they also reported fairly high levels of current emotional well-being, suggesting that they are emotionally resilient and fit to contribute to society in a positive way.

July 28, 2018 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (1)

Thursday, July 19, 2018

"Assessing the Real Risk of Sexually Violent Predators: Doctor Padilla’s Dangerous Data"

The title of this post is the title of this new paper authored by Tamara Rice Lave and Franklin Zimring now available via SSRN. Here is its abstract:

This Article uses internal memoranda and emails to describe the efforts of the California Department of Mental Health to suppress a serious and well-designed study that showed just 6.5% of untreated sexually violent predators were arrested for a new sex crime within 4.8 years of release from a locked mental facility. 

The Article begins by historically situating sexually violent predator laws and then explains the constitutionally critical role that prospective sexual dangerousness plays in justifying these laws.  The Article next explains how the U.S. Supreme Court and the highest state courts have allowed these laws to exist without requiring any proof of actual danger.  It then describes the California study and reconciles its findings with those of a well-known Washington study by explaining the preventive effects of increasing age.  Finally, the Article explains how these results undermine the justification for indeterminate lifetime commitment of sex offenders

July 19, 2018 in Data on sentencing, Offender Characteristics, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (6)

Thursday, July 12, 2018

US Sentencing Commission releases big new report detailing "inconsistently" applied federal mandatory minimum prior drug offense enhancement

851_coverThe United States Sentencing Commission today issued this big new report, titled "Application and Impact of 21 U.S.C. § 851: Enhanced Penalties for Federal Drug Trafficking Offenders," which examines the use and impact of the huge mandatory sentence increases for drug offenders who have a prior felony drug conviction (which are almost solely in the control of prosecutors and often called 851 enhancements).  A summary account of the 59-page report can be found on this USSC webpage and this two-page "Report-At-A-Glance" publication.  Here are highlights from the web account:

This publication examines the application and impact of the statutory penalty enhancement for federal drug trafficking offenders with a prior felony drug conviction (21 U.S.C. § 851). To trigger these enhanced penalties, a prosecutor must file an information providing notice of which prior convictions support the enhanced penalties.

Using fiscal year 2016 data, this publication provides comparisons between all offenders who appeared eligible for an 851 enhancement, offenders for whom an 851 information was filed, offenders for whom an 851 information was filed and later withdrawn, and offenders who remained subject to the 851 enhancement at sentencing.  The analysis builds on the Commission's 2011 report to Congress, in which the Commission recommended that Congress reassess the severity and scope of 851 enhancements.

Key Findings

Cases in which an 851 enhancement applied are rare.

  • The government filed an 851 information against 757 drug trafficking offenders, which represents just 12.3 percent of 6,153 offenders eligible for an 851 enhancement in fiscal year 2016.
  • The number of offenders is even smaller after considering cases in which the government withdrew the 851 information or made a motion for substantial assistance relief.  There were only 583 cases in which the 851 information was not withdrawn by the time of sentencing, and only 243 offenders (3.9% of eligible offenders) who ultimately remained subject to an enhanced mandatory minimum penalty.

The 851 enhancements were applied inconsistently, with wide geographic variations in the filing, withdrawal, and ultimate application of the 851 enhancements for eligible drug trafficking offenders.

  • In the majority of districts in fiscal year 2016, at least one-quarter of all drug trafficking offenders were eligible for an 851 enhancement.
  • There was, however, significant variation in the extent to which the enhanced penalties were sought against eligible offenders, ranging from five districts in which an 851 enhancement was sought against more than 50 percent of eligible drug trafficking offenders to 19 districts in which the enhancement was not sought against any of the eligible offenders.
  • Districts also varied significantly in the rate at which an 851 information was filed and later withdrawn.  Several of the districts with the highest rates of filing an 851 information also had among the lowest rates of withdrawal. Conversely, some districts have higher rates of withdrawal even where they appear to be more selective in filing an 851 information.

The 851 enhancements resulted in longer sentences for the relatively few drug offenders to which they apply.

  • In fiscal year 2016, offenders against whom an 851 information was filed received an average sentence that was over five years longer (61 months) than eligible offenders against whom the information was not filed (147 months compared to 86 months).
  • Offenders who remained subject to an enhanced mandatory minimum penalty at sentencing had average sentences of nearly 19 years (225 months), approximately ten years longer than the average sentence for offenders who received relief from an enhanced mandatory minimum penalty (107 months) and nearly 12 years longer than the average sentence for eligible offenders against whom the information was not filed (86 months).

While 851 enhancements had a significant impact on all racial groups, Black offenders were impacted most significantly.

  • Black offenders comprised the largest proportion of drug trafficking offenders (42.2%) eligible for an 851 enhancement in fiscal year 2016.
  • Black offenders constituted the majority (51.2%) of offenders against whom the government filed an information seeking an 851 enhancement, followed by White offenders (24.3%), Hispanic offenders (22.5%), and Other Race offenders (2.0%).
  • Such an information was filed against nearly 15 percent (14.9%) of Black offenders who were eligible to receive an 851 enhancement. This rate was higher than the rates for White offenders (11.4%), Other Race offenders (11.7%), and Hispanic offenders (9.4%).
  • The prevalence of Black offenders was even more pronounced for offenders who remained subject to an enhanced mandatory minimum penalty at sentencing, with Black offenders representing 57.9 percent of such offenders.

The is much to be drawn from and said about this data, but an important first-take summary is that this report proves yet again how mandatory minimums controlled by prosecutors can often operate to create rather than reduce sentencing disparities. And, disconcertingly, here is yet another report suggesting that black defendants face the hardest brunt of these disparities.

July 12, 2018 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Monday, July 09, 2018

Lots more great new Quick Facts publications from US Sentencing Commission

In this post a few days ago, I 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").  In my prior post, I gave special attention to the new Quick Facts on "Women in the Federal Offender Population," but now I see there are new Quick Facts on just about every major federal sentencing topic based on the USSC's 2017 fiscal year data.  Here are just a few of these publications I have been checking out:

There are so many big and small stories to notice here, and I find especially interesting the sentence-length and trend data appearing in this document about federal drug sentencing. It shows, inter alia, that despite all the talk about the opioid crisis and enhanced prosecution efforts, in Fiscal Year 2017 there were far more sentencings for methamphetamine trafficking than any other drug and these meth offenders got on average a sentence nearly two years longer than the average heroin dealer sentenced in federal court. Also, of all drug dealers sentenced in federal court in Fiscal Year 2017, roughly three times as many had their guideline range reduced as a minor or minimal participant than had their guideline range increased for having a leadership or supervisory role in a drug offense.

July 9, 2018 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics | Permalink | Comments (0)