Monday, April 15, 2019

"Death by Stereotype: Race, Ethnicity, and California’s Failure to Implement Furman’s Narrowing Requirement"

The title of this post is the title of this new empirical article now available via SSRN and co-authored by an especially impressive list of folks: Catherine M. Grosso, Jeffrey Fagan, Michael Laurence, David C. Baldus, George G. Woodworth and Richard Newell.  Here is its abstract:

The influence of race on the administration of capital punishment in the United States had a major role in the United States Supreme Court’s 1972 decision in Furman v. Georgia to invalidate death penalty statutes across the United States.  To avoid discriminatory and capricious application of capital punishment, the Supreme Court held that the Eighth Amendment requires legislatures to narrow the scope of capital offenses and ensure that only the most severe crimes are subjected to the ultimate punishment.  This Article demonstrates the racial and ethnic dimension of California’s failure to implement this narrowing requirement.

Our analysis uses a sample of 1,900 cases drawn from 27,453 California convictions for first-degree murder, second-degree murder, and voluntary manslaughter with offense dates between January 1978 and June 2002.  Contrary to the teachings of Furman, we found that several of California’s “special circumstances” target capital eligibility disparately based on the race or ethnicity of the defendant.  In so doing, the statute appears to codify rather than ameliorate the harmful racial stereotypes that are endemic to our criminal justice system.  The instantiation of racial and ethnic stereotypes into death-eligibility raises the specter of discriminatory intent in the design of California’s statute, with implications for constitutional regulation of capital punishment.

April 15, 2019 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender | Permalink | Comments (1)

Tuesday, March 26, 2019

Spotlighting what the California AG could do to really change capital course in California

John Mills has this notable new Daily Journal commentary following up on recent California capital developments.  The main headline of the piece is "Newsom may have halted executions, but the machine keeps on ticking." And the subheadline carries forward the theme: "Gov. Gavin Newsom made history by declaring a moratorium on executions in California and even tweeting out images of the execution chamber being dismantled. Although I was in Sacramento, I missed the announcement. I was in court on one of my death penalty cases."

The full commentary give particular attention to what California's Attorney General might now do to really change the course of capital punishment in the state.  I recommend the full piece, and here are excerpts:

Attorney General Xavier Becerra is uniquely positioned to help bring it to a halt.  He has called Newsom's reprieve "a bold, new direction in California's march toward perfecting our search for justice."  I agree.

But Becerra's statement is remarkable because there is so much that more he could do, large and small, to support that effort beyond defending the governor's decree.  Taking up any one of them would be a much better use of state resources than defending hundreds of death sentences that will almost certainly never be carried out.

In the death penalty cases Becerra is currently defending, he could admit in court what Newsom acknowledged in his executive order: California "death sentences are unevenly and unfairly applied to people of color."  Supporters and opponents of the death penalty agree that the most obvious impact of race on death sentencing is the race of the victim. This effect is greatest when the defendant is black, and where a crime is committed is a much better predictor of a death sentence than the culpability of the perpetrator.  Tragically, we as a state have failed to divorce our country's racist history from our harshest penalties in the present.  Admitting as much would clear the way for the courts to hold that California's death penalty is inconsistent with our state's constitutional commitments to equal protection under the law.

Becerra could also confess other defects, any one of which would acknowledge the unconstitutionality of California's death penalty regime.  For example, by design, California's death sentencing statute reaches virtually every murder, as studies by preeminent experts have confirmed....

He could admit to other systemic problems, such as the inherent cruelty of languishing under a sentence of death for decades, the lack of required jury findings for aggravating circumstances, and arbitrariness in the process by which a person becomes eligible for execution.  Any one of these admissions would be well supported and, if also endorsed by the courts, would bring California's experiment with the death penalty to an end.

He could also take a more case-by-case approach.  The commentary in opposition to Newsom's moratorium has suggested that California is special, that whatever problems may be present with the death penalty in other states, just don't affect us.  That's a lie....

Even taking the modest steps of not appealing a grant of relief from a death sentence, waiving procedural defenses to claims challenging the legality of a sentence, or asking for an evidentiary hearing in cases where there are troubling claims about sentences of death would each be a leap towards ensuring that justice is done where the stakes are highest.

So far, Becerra has not taken that tack.  He has, instead, consistently opposed relief, invoked procedural barriers to reviewing the merits of constitutional claims, and failed to take steps that would expedite, rather than block the delivery of justice.

There are many other actors who could do many other things to mitigate the excesses and arbitrariness inherent to the use of the death penalty.  But the reforms proposed here could be accomplished with little or no cost and would demonstrate an executive branch unified in its determination to put justice first.  It is time for a bold new direction from the attorney general.

Prior related posts:

March 26, 2019 in Detailed sentencing data, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"The Effects of Voluntary and Presumptive Sentencing Guidelines"

The title of this post is the title of this notable new empirical article authored by Griffin Sims Edwards, Stephen Rushin and Joseph Colquitt.  Here is its abstract:

This Article empirically illustrates that the introduction of voluntary and presumptive sentencing guidelines at the state-level can contribute to statistically significant reductions in sentence length, inter-judge disparities, and racial disparities.

For much of American history, judges had largely unguided discretion to select criminal sentences within statutorily authorized ranges.  But in the mid-to-late twentieth century, states and the federal government began experimenting with sentencing guidelines designed to reign in judicial discretion to ensure that similarly situated offenders received comparable sentences.  Some states have made their guidelines voluntary, while others have made their guidelines presumptive or mandatory, meaning that judges must generally adhere to them unless they can justify a departure.

In order to explore the effects of both voluntary and presumptive sentencing guidelines on judicial behavior, this Article relies on a comprehensive dataset of 221,934 criminal sentences handed down by 355 different judges in Alabama between 2002 and 2015.  This dataset provides a unique opportunity to address this empirical question, in part because of Alabama’s legislative history.  Between 2002 and 2006, Alabama had no sentencing guidelines. In 2006, the state introduced voluntary sentencing guidelines.  Then in 2013, the state made these sentencing guidelines presumptive for some non-violent offenses.

Using a difference-in-difference framework, we find that the introduction of voluntary sentencing guidelines in Alabama coincided with a decrease in average sentence length of around seven months.  When the same guidelines became presumptive, the average sentence length dropped by almost two years.  Further, using a triple difference framework, we show that the adoption of these sentencing guidelines coincided with around eight to twelve-month reductions in race-based sentencing disparities and substantial reductions in inter-judge sentencing disparities across all classes of offenders.  Combined, this data suggests that voluntary and presumptive sentencing guidelines can help states combat inequality in their criminal justice systems while controlling the sizes of their prison populations.

March 26, 2019 in Advisory Sentencing Guidelines, Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, State Sentencing Guidelines | Permalink | Comments (0)

Sunday, March 24, 2019

Interesting new TRAC data on intra-courthouse judge-to-judge differences in sentences

The Transactional Records Access Clearinghouse (TRAC) at Syracuse University maintains lots of data on the work of federal courts and federal agencies. Seemingly inspired by the recent sentencing(s) of Paul Manafort, TRAC completed a "study of judge sentencing differences at 155 federal courthouses across the country" in which "the judge with the lowest average prison sentence was compared with the judge with the highest average sentence at each courthouse."  At this page, TRAC summarizes its findings this way:

Based upon case-by-case sentencing records, the Transactional Records Access Clearinghouse (TRAC) at Syracuse University found that half of federal judges served at courthouse where the average prison sentence differed by at least 23 months depending upon which judge handled the case.  Sixty-six of these judges served at six courthouses where the average prison sentence length differed by more than 48 months.

The Orlando courthouse in the Middle District of Florida with seven judges had a range of over 80 months between the judge with the shortest versus the longest average prison sentence.  This was followed by the Greenbelt courthouse in Maryland with over 64 months difference among the seven judges serving there....

To examine current sentencing differences at each of the 155 federal courthouses included in the study, read the full report [at this link].

Because TRAC is comparing average sentences for each federal judge directly without controlling for the specific caseloads of these judges, variations in average sentences could reflect caseload differences as much as judicial differences. But in the full report, TRAC reasonably notes that due to "the fairly large number of defendants sentenced by each judge, where there is random assignment of cases to judges then statistically speaking each judge should have closely comparable caseloads so that differences in the nature of the offenses and defendants' histories are roughly comparable."

Ultimately, this TRAC report provides a crude and incomplete account of intra-courthouse judge-to-judge differences because just one or two outlier judges could and would make a courthouse look bad in this TRAC accounting.  Still, it is interesting and useful to be reminded statistically of what all federal criminal justice practitioners know well, namely that most judges have their own distinctive and unique approaches to sentencing decision-making.

March 24, 2019 in Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (4)

Thursday, March 21, 2019

Might the US Sentencing Commission provide some real-time updates on the implementation of the FIRST STEP Act?

The question in the title of this post first came to mind when I first came across this local article a couple weeks ago reporting that "so far, 14 Rhode Islanders convicted under stiff mandatory-sentencing laws have gained early release under the newly enacted federal law called the First Step Act."  More recently, I saw this extended piece from the Indiana Lawyer with this interesting data report:

Already in the Southern District of Indiana, some 15 offenders have been released from federal prison pursuant to the First Step Act, and another 15 to 20 releases are expected soon.  Though Northern District judges have not yet reduced any sentences under the act, federal defender Jerry Flynn expects reductions and releases to begin in his district soon.

These reports of prison releases from Indiana and Rhode Island appear to be a function of the initial implementation of Section 404 of the FIRST STEP Act, the retroactive application of Fair Sentencing Act of 2010 which lowered crack mandatory minimums.  And these reports have me already wondering about (1) which districts may (or may not) be doing a particularly good job implementing the latest round of crack retroactivity, and (2) whether most defendants now benefiting from crack retoractivity are securing immediate release from prison or are just getting long sentences reduced a bit.

To its credit, the US Sentencing Commission has a long and impressive track record of keeping track of guideline retroactivity and producing lots of good data and analysis of who benefits from retroactivity.  So I am pretty confident the USSC will eventually produce good data on how this crack retroactivity part of the FIRST STEP Act gets implemented.  But, of course, there are many more part of the new Act that may (or may not) be getting implemented effectively right now, and I am less confident that the USSC is tracking or planning to report on developments in these other areas.

To again credit important and helpful work already done by the USSC, the Commission has published an Overview & FAQs (updated Feb. 15, 2019) and a Prison & Sentencing Impact Analysis (published Jan. 18, 2019) on the FIRST STEP Act.  But these documents do not even discuss some facets of the Act that concern matters related to sentencing and the work of federal judges.  I am thinking particularly about sentence modification under 18 U.S.C. § 3582(C)(1)(A) (often called compassionate release).  As noted in this prior post, the FIRST STEP Act now provides that an inmate can bring a request to "modify a term of imprisonment" directly to a sentencing court (rather than needing a motion by the Bureau of Prison) based on the claim that "extraordinary and compelling reasons warrant such a reduction."  As noted in this prior post, the press is reporting on some sentence modification motions are being granted.

I think it would be a great service to the federal criminal justice community if the US Sentencing Commission would give focused attention to reporting on FIRST STEP Act implementation.  Indeed, because the USSC has only two active commissioners and seems unlikely to have any more anytime soon, the Commission cannot formally do much more these days than produce research and data.  Today happens to make the three-month anniversary of the FIRST STEP Act being signed in to law, and I think data always makes a great anniversary present.

March 21, 2019 in Data on sentencing, Detailed sentencing data, FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (0)

Tuesday, March 19, 2019

"Mass Incarceration: The Whole Pie 2019"

Pie2019The Prison Policy Initiative has today posted the latest, greatest version of its remarkable incarceration "pie" graphic and associated report on the particulars of who and how people are incarcerated in the United States.  The extraordinary pies produced by PPI impart more information in one image than just about any single resource I can think of.  Here is part of the report's introductory text and the concluding discussion on my favorite law-nerd version of pie day:

Can it really be true that most people in jail are being held before trial?  And how much of mass incarceration is a result of the war on drugs?  These questions are harder to answer than you might think, because our country’s systems of confinement are so fragmented.  The various government agencies involved in the justice system collect a lot of critical data, but it is not designed to help policymakers or the public understand what’s going on.  As public support for criminal justice reform continues to build, however, it’s more important than ever that we get the facts straight and understand the big picture.

This report offers some much needed clarity by piecing together this country’s disparate systems of confinement.  The American criminal justice system holds almost 2.3 million people in 1,719 state prisons, 109 federal prisons, 1,772 juvenile correctional facilities, 3,163 local jails, and 80 Indian Country jails as well as in military prisons, immigration detention facilities, civil commitment centers, state psychiatric hospitals, and prisons in the U.S. territories.  This report provides a detailed look at where and why people are locked up in the U.S., and dispels some modern myths to focus attention on the real drivers of mass incarceration.

This big-picture view allows us to focus on the most important drivers of mass incarceration and identify important, but often ignored, systems of confinement.  The detailed views bring these overlooked systems to light, from immigration detention to civil commitment and youth confinement.  In particular, local jails often receive short shrift in larger discussions about criminal justice, but they play a critical role as “incarceration’s front door” and have a far greater impact than the daily population suggests.

While this pie chart provides a comprehensive snapshot of our correctional system, the graphic does not capture the enormous churn in and out of our correctional facilities, nor the far larger universe of people whose lives are affected by the criminal justice system.  Every year, over 600,000 people enter prison gates, but people go to jail 10.6 million times each year.  Jail churn is particularly high because most people in jails have not been convicted.  Some have just been arrested and will make bail within hours or days, while many others are too poor to make bail and remain behind bars until their trial.  Only a small number (less than 150,000 on any given day) have been convicted, and are generally serving misdemeanors sentences under a year....

Now that we can see the big picture of how many people are locked up in the United States in the various types of facilities, we can see that something needs to change.  Looking at the big picture requires us to ask if it really makes sense to lock up 2.3 million people on any given day, giving this nation the dubious distinction of having the highest incarceration rate in the world.  Both policymakers and the public have the responsibility to carefully consider each individual slice in turn to ask whether legitimate social goals are served by putting each group behind bars, and whether any benefit really outweighs the social and fiscal costs.

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

March 19, 2019 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

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)

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)

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)

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)

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)

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)

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)

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)

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)

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)

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)

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 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)

Thursday, July 05, 2018

Interesting new Quick Facts report from US Sentencing Commission on "Women in the Federal Offender Population"

I am so pleased to see and to be able to report that the US Sentencing Commission is continuing to produce a steady stream of its insightful little data documents in its terrific series of reader-friendly "Quick Facts" publications.  Regular readers may recall from this prior post, roughly five years ago, the USSC started putting out these publications as a way to "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format."

This month brings this new Quick Facts on "Women in the Federal Offender Population," and here are just a few data tidbits from the document that caught my attention:

July 5, 2018 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offender Characteristics, Race, Class, and Gender | Permalink | Comments (0)

"Police, Race, and the Production of Capital Homicides"

The title of this post is the title of this new paper now available via SSRN and authored by Jeffrey Fagan and Amanda Geller. Here is the abstract:

Racial disparities in capital punishment have been well documented for decades.  Over 50 studies have shown that Black defendants more likely than their white counterparts to be charged with capital-eligible crimes, to be convicted and sentenced to death.  Racial disparities in charging and sentencing in capital-eligible homicides are the largest for the small number of cases where black defendants murder white victims compared to within-race killings, or where whites murder black or other ethnic minority victims.  These patterns are robust to rich controls for non-racial characteristics and state sentencing guidelines.

This article backs up the research on racial disparities to an earlier stage of capital case processing: the production of capital-eligible cases beginning with the identification of potential defendants by the police.  It seeks to trace these sentencing disparities to examining earlier stages in the processing of homicides. Using data from the FBI’s Supplementary Homicide Reports, we examine every homicide reported between 1976 and 2009, and find that homicides with white victims are significantly more likely to be “cleared” by the arrest of a suspect than are homicides with minority victims.  We estimate a series of hierarchical regressions to show that a substantial portion of this disparity is explained by social and demographic characteristics of the county in which homicides take place.  Most notably, counties with large concentrations of minority residents have lower clearance rates than do predominantly white counties; however, county characteristics do not fully explain the observed race-of-victim disparities.  Our findings raise equal protection concerns, paving the way for further research into the production of capital homicides and the administration of the death penalty.

July 5, 2018 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data, Race, Class, and Gender, Who Sentences | Permalink | Comments (2)

Monday, July 02, 2018

US Sentencing Commission releases mid-FY 2018 sentencing data with re-engineered accounting of departures and variances

US Sentencing Commission has now released here its latest quarterly data report, and this one "contains preliminary quarterly data on cases in which the offender was sentenced during the first half of fiscal year 2018" (which is the period from October 1, 2017, through March 31, 2018).  I do not believe the USSC released first quarter FY 2018 data, so this new report seems to be the first big data report of the "post-Sessions Memo era" -- i.e., since AG Jeff Sessions issued his May 2017 charging and sentencing memorandum directing federal prosecutors to pursue those offenses that carry the most substantial guidelines sentence, including mandatory minimum sentences, and to more regularly seek within-guideline sentences.

From a quick glance and comparing this data from the last full year of sentencing data from the Obama Administration (in this FY 2016 data report), there does seem to be a noticeable uptick in mean sentences in some big crime categories.  For example (drawing from Table 6 in both data runs): the mean drug trafficking sentence was 75 months in the first half of FY 2018, the mean in FY 2016 was only 66 months; the mean fraud sentence was 27 months in the first half of FY 2018, the mean in FY 2016 was only 25 months.  But, interestingly, in other big crime categories there was a downtick in mean sentences: the mean firearm sentence was 70 months in the first half of FY 2018, the mean in FY 2016 was 75 months; the mean immigration sentence was 11 months in the first half of FY 2018, the mean in FY 2016 was 13 months.  Putt this all together with other less common offenses, and it turns out the cumulative mean federal sentence for the first half of FY 2018 was 45 months, the exact same mean for all federal sentences in FY 2016.

I would report some similar comparable data on departures and variances, but the USSC in this data run has significant altered how it accounts and reports this data.  Here is part of the USSC's explanation of its new accounting:

Beginning with this report, 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.  The former category comprises all cases in which the sentence imposed was within the applicable guideline range or, if outside the range, where the court indicated that one or more of the departure reasons in the Commission’s Guidelines Manual was a basis for the sentence.  Variance cases are those where the sentence was outside the guideline range (either above or below) and where the court did not cite any guideline reason for the sentence.  Data for important subgroups within these two categories are also reported.

In other words, within-guideline and "traditional departure" sentences are grouped together, while all Booker-allowed variances broken out distinctly.  It seems that all the key data previously reported on Table 8 of past USSC's data reports still appears in Table 8A of the new report.  But, fascinatingly, the new organization showcases now that roughly 3/4 of all sentences (74.7% to be exact) are "Sentences under the Guidelines Manual" with "variances" now accounting for only 25.3% of the sentences (with 2% being upward variances, 5.5% being "government motion" variances and 17.7% being "non-government" variances). 

Repackaging aside, we can still look at the "within-guideline" number on Table 8 and 8A for direct comparisons on this front between the first half of FY 2018 and all federal sentences in FY 2016.  Doing so shows that the within-guideline sentencing rate has increased from 48.6% in FY 2016 up to 50% in the first half of FY 2018.  Without a more intricate and sophisticated analysis controlling for caseloads and other factors, it is too hard to say there is conclusive evidence that the Sessions Memo is having a real impact on federal sentencing outcome.  But these data are suggestive of trends that seem likely to continue as move cases more through the pipeline and as a new set of federal prosecutors give effect to commands from Main Justice.

July 2, 2018 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Wednesday, June 27, 2018

The Sentencing Project effectively reviews "Trends in U.S. Corrections"

The folks at The Sentencing Project late last week published this document, titled "Trends in U.S. Corrections," which serves as an effective fact sheet compiling major developments regarding the scope of imprisonment in the US criminal justice system over the past several decades. The short document has lots of effective graphs reporting on lots of demographic realities of prison populations, and here is a bit of its prose on two particular issues:

Sentencing policies of the War on Drugs era resulted in dramatic growth in incarceration for drug offenses.  Since its official beginning in the 1980s, the number of Americans incarcerated for drug offenses has skyrocketed from 40,900 in 1980 to 450,345 in 2016.  Furthermore, harsh sentencing laws such as mandatory minimums keep many people convicted of drug offenses in prison for longer periods of time: in 1986, people released after serving time for a federal drug offense had spent an average of 22 months in prison.  By 2004, people convicted on federal drug offenses were expected to serve almost three times that length: 62 months in prison.

At the federal level, people incarcerated on a drug conviction make up just under half the prison population.  At the state level, the number of people in prison for drug offenses has increased ninefold since 1980, although it has begun declining in recent years.  Most of these people are not high-level actors in the drug trade, and most have no prior criminal record for a violent offense....

The number of people serving life sentences continues to grow even while serious, violent crime has been declining for the past 20 years and little public safety benefit has been demonstrated to correlate with increasingly lengthy sentences.  The lifer population has nearly quintupled since 1984.  One in nine people in prison is now serving a life sentence and nearly a third of lifers have been sentenced to life without parole.

June 27, 2018 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Monday, May 28, 2018

Another helpful review of analysis of huge set of federal sentencing outcomes

In this post last week I discussed this amazing new working paper by Alma Cohen and Crystal Yang titled "Judicial Politics and Sentencing Decisions."  I am now pleased to giving attention to this research in the New York Times through this latest "Sidebar" column.  His piece is headlined "Black Defendants Get Longer Sentences From Republican-Appointed Judges, Study Finds," and here are excerpts: 

Judges appointed by Republican presidents gave longer sentences to black defendants and shorter ones to women than judges appointed by Democrats, according to a new study that analyzed data on more than half a million defendants.  “Republican-appointed judges sentence black defendants to three more months than similar nonblacks and female defendants to two fewer months than similar males compared to Democratic-appointed judges,” the study found, adding, “These differences cannot be explained by other judge characteristics and grow substantially larger when judges are granted more discretion.”...

It has long been known that there is an overall racial sentencing gap, with judges of all political affiliations meting out longer sentences to black offenders. The new study confirmed this, finding that black defendants are sentenced to 4.8 months more than similar offenders of other races. It was also well known, and perhaps not terribly surprising, that Republican appointees are tougher on crime over all, imposing sentences an average of 2.4 months longer than Democratic appointees.

But the study’s findings on how judges’ partisan affiliations affected the racial and gender gaps were new and startling.  “The racial gap by political affiliation is three months, approximately 65 percent of the baseline racial sentence gap,” the authors wrote.  “We also find that Republican-appointed judges give female defendants two months less in prison than similar male defendants compared to Democratic-appointed judges, 17 percent of the baseline gender sentence gap.”

The two kinds of gaps appear to have slightly different explanations.  “We find evidence that gender disparities by political affiliation are largely driven by violent offenses and drug offenses,” the study said.  “We also find that racial disparities by political affiliation are largely driven by drug offenses.” 

The authors of the study sounded a note of caution.  “The precise reasons why these disparities by political affiliation exist remain unknown and we caution that our results cannot speak to whether the sentences imposed by Republican- or Democratic-appointed judges are warranted or ‘right,’” the authors wrote.  “Our results, however, do suggest that Republican- and Democratic-appointed judges treat defendants differently on the basis of their race and gender given that we observe robust disparities despite the random assignment of cases to judges within the same court.”

The study is studded with fascinating tidbits.  Black judges treat male and female offenders more equally than white judges do. Black judges appointed by Republicans treat black offenders more leniently than do other Republican appointees. More experienced judges are less apt to treat black and female defendants differently.  Judges in states with higher levels of racism, as measured by popular support for laws against interracial marriage, are more likely to treat black defendants more harshly than white ones.

Prior related post:

May 28, 2018 in Booker in district courts, Data on sentencing, Detailed sentencing data, Race, Class, and Gender, Who Sentences | Permalink | Comments (2)

Thursday, May 24, 2018

Amazing new empirical research in federal sentencing outcomes detailing disparities based on political background

This week brought this amazing new working paper by Alma Cohen and Crystal Yang titled simply "Judicial Politics and Sentencing Decisions." I did not want to blog about the paper until I had a chance to read it, and doing so make me want to now do dozens of blog posts to capture all the issues the paper covers and raises. The paper's simple abstract provides a hint of why the paper is so interesting and provocative:

This paper investigates whether judge political affiliation contributes to racial and gender disparities in sentencing using data on over 500,000 federal defendants linked to sentencing judge.  Exploiting random case assignment, we find that Republican-appointed judges sentence black defendants to 3.0 more months than similar non-blacks and female defendants to 2.0 fewer months than similar males compared to Democratic-appointed judges, 65 percent of the baseline racial sentence gap and 17 percent of the baseline gender sentence gap, respectively.  These differences cannot be explained by other judge characteristics and grow substantially larger when judges are granted more discretion.

Each of these three sentences could alone justify multiple postings on just research particulars: e.g., I believe a database with over 500,000 sentencings might be the largest ever assembled and analyzed; I wonder if the data looks different for Clinton and Obama judges among the Ds, for Nixon and Reagan and others judges among the Rs; I fear many judge characteristics like prior jobs and connections to certain communities are really hard to control for.  In other words, just the scope and methods of this research is fascinating.

Moreover and more importantly, there is great richness in the findings of the full paper.  For example, the authors find "statistically significant differences in racial gaps in base offense level and final offense level by judge political affiliation."  In other word, the authors have discovered worrisome disparities in how guideline ranges are set/calculated, not just in how judges sentence in reaction to a particular guideline range.   Some additional notable findings are summarized in this recent WonkBlog piece at the Washington Post headlined "Black defendants receive longer prison terms from Republican-appointed judges, study finds."  Here are excerpts:

Federal judges appointed by Republican presidents give black defendants sentences that are, on average, six to seven months longer than the sentences they give to similar white defendants, according to a new working paper from Alma Cohen and Crystal Yang of Harvard Law School.  That racial sentencing disparity is about twice as large as the one observed among judges appointed by Democrats, who give black defendants sentences that are three to four months longer than the sentences they give to white defendants with similar histories who commit similar crimes....

They did find, however, that the gap between sentences for black and white defendants was smaller for more-experienced judges than for less-experienced ones.  They also found that differences between how Republican and Democratic judges treat black and white defendants grew larger after the Supreme Court's 2005 decision in United States v. Booker, which gave federal judges much more leeway to depart from federal sentencing guidelines.

Importantly, however, they found that growing differences between Democratic and Republican judges in the post-Booker era are due to Democratic judges reducing disparities in how they sentence black and white defendants.  Given more discretion, in other words, Democratic judges treated defendants of different races more equally, while Republican judges continued to carry on as they had before.

Cohen and Yang also found one important geographical effect: Black defendants fared particularly poorly in states with high amounts of population-level racial bias, measured here by the percentage of white residents in a given state who believe there should be laws against interracial marriage.  These states tend to be clustered in the South, and previous research has shown a similar racial sentencing bias in these states when it comes to capital punishment.

Finally, they also observed an opposite effect in how Democratic and Republican judges treated female defendants: While all judges tended to hand down shorter sentences to women than to men charged with similar crimes, Republican judges were considerably more lenient to women.  “Overall, these results indicate that judicial ideology may be a source of the persistent and large racial and gender disparities in the criminal justice system,” Cohen and Yang conclude.

Anyone with any experience in the federal sentencing system knows full well how judicial ideology may be a source of the persistent and large disparities in the operation of the system. But reflecting on my own experiences as a defense attorney and expert in a number of federal sentencing settings, I am eager here to highlight how the impact of judicial ideology may be impacted by the work of other actors involved in the federal sentencing process. I often sense that those judges (perhaps disproportionately Republican Appointees) with an earned reputation as a "by the guideline" type may not consistently receive the same type of mitigating information from probation officers and defense attorneys as do those judges known often to depart or now vary.

If readers are as intrigued and engaged by this new paper as I am, please say so in the comments, and I may try to see if I can encourage some folks to write up some guest-postings about this research.

UPDATE: A helpful reader sent me this link to the full paper in case folks are not able to access it via the NEBR site.

May 24, 2018 in Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Race, Class, and Gender, Who Sentences | Permalink | Comments (10)

Wednesday, May 23, 2018

Disconcerting updated data on state prisoner recidivism from the Bureau of Justice Statistics

The Bureau of Justice Statistics has just released this notable "Special Report" that updates its data on criminal justice interactions of a huge cohort of state prisoners released in 2005.  This new report is titled "2018 Update on Prisoner Recidivism: A 9-Year Follow-up Period (2005-2014)." Here is how the document get started:

Five in 6 (83%) state prisoners released in 2005 across 30 states were arrested at least once during the 9 years following their release. The remaining 17% were not arrested after release during the 9-year follow-up period.

About 4 in 9 (44%) prisoners released in 2005 were arrested at least once during their first year after release. About 1 in 3 (34%) were arrested during their third year after release, and nearly 1 in 4 (24%) were arrested during their ninth year.

This report examines the post-release offending patterns of former prisoners and their involvement in criminal activity both within and outside of the state where they were imprisoned.  The Bureau of Justice Statistics analyzed the offending patterns of 67,966 prisoners who were randomly sampled to represent the 401,288 state prisoners released in 2005 in 30 states.  This sample is representative of the 30 states, both individually and collectively, included in the study (see Methodology).  In 2005, these 30 states were responsible for 77% of all persons released from state prisons nationwide.

There is lots more data in this report, and the data I always want to look at closely in there recidivism settings is what type of crime or activity led to re-arrest for these released prisoners. It appears, if I am reading the data correctly, that rearrests were significantly more common for drug or property crime than for violent crime. But still the data show a significant number of rearrests for violent crimes.

As is true for any detailed criminal justice data, these latest recidivism numbers can be spun in support of all sorts of sentencing argument. Some can say (and some surely will say) that disconcerting recidivism data shows why it is so important to enact meaningful sentencing and prison reform at all levels. Others can say (and surely will say) that disconcerting recidivism data shows why any reduction in prison sentences will result in more crime sooner.

May 23, 2018 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (8)

Sunday, May 20, 2018

Vera Institute of Justice reports on "People in Prison 2017"

Via this web page and this document, the Vera institute of Justice has now providing a valuable new "up-to-date view of the number of people in state and federal prisons." Here is the summary of their efforts from the print document:

Effective advocacy and policy making require up-to-date information. Vera Institute of Justice (Vera) researchers collected data on the number of people in state and federal prisons on December 31, 2017 to provide timely information on how prison incarceration is changing in the United States.  This report fills a gap until the Bureau of Justice Statistics (BJS) releases its next annual report — likely in late 2018 or early 2019 — which will include additional data, such as population breakdowns by race and sex.

At the end of 2017, there were an estimated 1,489,600 people in state and federal prisons, down 15,800 from yearend 2016 (1 percent decline).

There were 1,306,300 people under state prison jurisdiction, 9,900 fewer than in 2016 (0.7 percent decline); and 183,300 in the federal prison system, 5,900 fewer than in 2016 (3.1 percent decline).  The prison incarceration rate in the United States was 457 people in prison per 100,000 residents, down from 465 per 100,000 in the previous year, representing a 1.8 percent drop. (See Figure 1.)  This brings the rate of prison incarceration down 14 percent since its peak in 2007.

The overall decline in the national prison incarceration rate was driven by the large decrease in the number of people in federal prisons, as well as greater than 5 percent declines in several states with large prison populations, such as Illinois, Louisiana, and Maryland.  However, the declines were not universal.  Mass incarceration is still on the rise in some states, such as Kentucky and Tennessee.  (See Table 1 for a summary of the jurisdictions with the highest and lowest prison population counts, rates, and percent changes from 2016.)

In addition to this summery, this document has a bunch of clear and informative charts with total prison populations and rates and changes for every state and region from 2007 to 2017.

May 20, 2018 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Thursday, May 17, 2018

US Sentencing Commission releases new research report on "The Criminal History of Federal Offenders"

Cover_2018-crim-histAs reported via this webpage, the US Sentencing Commission has released a new research publication titled simply "The Criminal History of Federal Offenders." The full report, available here, has lots of notable data and charts and graphs, and here is how the USSC summarizes its contents and key findings on its website:

Summary

The publication The Criminal History of Federal Offenders provides for the first time complete information on the number of convictions and types of offenses in the criminal histories of federal offenders sentenced in a fiscal year.

While the Commission has collected the criminal history points and Criminal History Category (CHC) as determined under the guidelines, it has not collected complete information on the number of convictions or the types of offenses in the criminal histories of federal offenders until now. The Commission is now able to utilize recent technological improvements to expand the scope of information it collects on an offender’s criminal history and provide a more complete assessment of the criminal history of federal offenders. In completing this report, the Commission collected additional details about the criminal histories for 61,946 of the 67,742 federal offenders sentenced in fiscal year 2016 for whom complete documentation was submitted to the Commission.

Key Findings

Key findings of the Commission’s study are as follows:

  • Almost three-quarters (72.8%) of federal offenders sentenced in fiscal year 2016 had been convicted of a prior offense. The average number of previous convictions was 6.1 among offenders with criminal history.

  • Public order was the most common prior offense, as 43.7 percent of offenders with prior criminal history had at least one conviction for a public order offense.

  • A conviction for a prior violent offense was almost as common as prior public order offenses, as 39.5 percent of offenders with criminal history had at least one prior violent offense. Assault was the most common violent offense (29.5%), followed by robbery (8.1%), and rape (4.4%). Just under two percent of offenders with criminal history had a prior homicide offense.

  • The nature of offenders’ criminal histories varied considerably by their federal instant offense.  The substantial majority (91.7%) of firearms offenders had at least one previous conviction compared to about half of fraud (52.4%) and child pornography (48.2%) offenders.  Firearms offenders were also most likely to have violence in their criminal histories, as 62.0 percent of firearms offenders with a previous conviction had a violent previous conviction.  Fraud offenders were the least likely of offenders with criminal history to have a violent previous conviction (26.2%).

  • Most (86.6%) federal offenders with criminal history had convictions that were assigned criminal history points under the guidelines.  Offenders who had at least one three-point conviction were the most likely of all offenders with convictions to have a murder (3.8%) or rape/sexual assault (7.0%) offense in their criminal histories.

  • A criminal history score of zero does not necessarily mean an offender had no prior criminal history. Almost one in ten offenders (9.8 percent) in fiscal year 2016 had a criminal history score of zero but had at least one prior conviction.

May 17, 2018 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offender Characteristics | Permalink | Comments (1)

Wednesday, May 02, 2018

Interesting statistics in BJS statistical brief "Capital Punishment, 2016"

Earlier this week, the Justice Department's Bureau of Justice Statistics released this short new publication titled simply "Capital Punishment, 2016." The paper presents statistics on persons under sentence of death in the United States as of year-end 2016. Though already a bit dated, the publication is still an interesting accounting of summary trends in the death row population, including admissions to and releases from death row. Here are a few highlights from the publication's list of highlights:

May 2, 2018 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data | Permalink | Comments (1)

Thursday, April 26, 2018

Bureau of Justice Statistics reports 2016 declines in number incarcerated and subject to community supervision in United States

This press release from the Bureau of Justice Statistics reports on the notable data appearing in two notable new BJS publications:

The number of adults supervised by the U.S. correctional system dropped for the ninth consecutive year in 2016. The correctional population includes persons supervised in the community on probation or parole and those incarcerated in prisons or local jails. This report from the Bureau of Justice Statistics is the latest official snapshot of the state of the U.S. correctional population.

From 2007 to 2016, the proportion of the adult population under the supervision of U.S. correctional authorities decreased by 18 percent, from 3,210 to 2,640 adults under correctional supervision per 100,000 residents. The number of adults under correctional supervision per 100,000 U.S. adult residents was lower in 2016 (2,640) than at any time since 1993 (2,550). Overall, about 1 in 38 adults were under some form of correctional supervision at year-end 2016.

An estimated 6,613,500 persons were under correctional supervision on December 31, 2016, about 62,700 fewer persons than on January 1. The total correctional population declined 0.9 percent during 2016 due to decreases in both the community supervision population (down 1.1 percent) and the incarcerated population (down 0.5 percent).

The incarcerated population decreased from 2,172,800 in 2015 to 2,162,400 in 2016. All of the decrease in the incarcerated population was due to a decline in the prison population (down 21,200), while the jail population remained relatively stable. The number of persons held in prison or local jail per 100,000 U.S. adult residents (incarceration rate) has declined since 2009 and is currently at its lowest rate (860 per 100,00 in 2016) since 1996 (830 per 100,000).

During 2016, the community supervision population fell from 4,586,900 on January 1 to 4,537,100 at year-end. All of the decrease in the community supervision population in 2016 was due to a decline in the probation population (down 52,500). The parole population increased 0.5 percent in 2016 (up 4,300 persons). More than two-thirds (69 percent) of the correctional population were supervised in the community at year-end 2016, similar to the percentage observed in 2007.

These data and a whole lot more appear in these two new BJS publications:

UPDATE: Keith Humphryes has here his typically sharp WonkBlog commentary here focused on these new data under the headline "The U.S. prisoner population continued to shrink in 2016, new data show." Here concludes this way (with links from the original):

A smaller correctional population is a dividend of lower crime rates combined with a national wave of sentencing and rehabilitation reforms at the state level.  Because the current generation of adolescents and adults is committing significantly less crime than did prior generations at their age, there will be ample opportunity to shrink the correctional system even further in the coming years.

April 26, 2018 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (2)

Saturday, April 07, 2018

"Capital Punishment Decisions in Pennsylvania: 2000-2010: Implications for Racial, Ethnic and Other Disparate Impacts"

The title of this post is the title of this notable empirical paper recently posted to SSRN and authored by John Kramer, Jeffery Todd Ulmer and Gary Zajac. Here is its abstract:

A study of disparity in the administration of the death penalty in Pennsylvania by Kramer, Ulmer, and Zajac (2017) was recently completed for the Pennsylvania Interbranch Commission on Gender, Racial, and Ethnic Fairness.  This study collected basic statistical data on 4,274 cases charged with homicide in Pennsylvania from 2000 to 2010, and then collected highly detailed data from courts and prosecutors’ offices on a subset of 880 first degree murder convictions in 18 counties accounting for more than 87% of all 2000-2010 first degree murder convictions.  Utilizing propensity score methods in analyses of these first degree murder convictions, the study examined whether defendants’ and victims’ race/ethnicity (separately and in combination), predicted: 1) prosecutors’ decisions to seek the death penalty, 2) prosecutors’ decisions to retract a motion to seek the death penalty once it is filed, and 3) court decisions to sentence defendants to death or life without parole.

Key findings were: 1) No pattern of disparity was found to the disadvantage of Black or Hispanic defendants in prosecutors’ decisions to seek and, if sought, to retract the death penalty.  2) Black and Hispanic defendants were not disadvantaged in death penalty sentence decisions relative to White defendants. 3) Cases with White victims, regardless of race of defendant, were 8% more likely to receive the death penalty, while Black victim cases were 6% less likely to receive the death penalty. 4) Prosecutors filed to seek the death penalty in 36% of first degree convictions; but later retracted that filing in 46% of those cases.  Moreover, a predominant pattern emerged in which a death penalty filing strongly predicted a guilty plea in these murder cases, and pleading guilty strongly predicted the retraction of the death penalty filing. 5) There were very large differences between counties in the likelihood of prosecutors filing to seek the death penalty, the likelihood of their retracting that filing, and in courts imposing the death penalty.  In fact, the biggest extra-legal influence on whether defendants faced or received the death penalty was where their cases were handled.  6) Public defenders were less likely than private or court appointed attorneys to have the death penalty filed in cases they represented.  However, public defender cases were more likely to receive the death penalty, and defendants represented by private attorneys were especially unlikely to receive the death penalty.  These defense attorney differences also, in turn, varied greatly between counties.

April 7, 2018 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data, Race, Class, and Gender, Who Sentences | Permalink | Comments (1)

Wednesday, March 28, 2018

"Recidivism Among Federal Offenders Receiving Retroactive Sentence Reductions: The 2011 Fair Sentencing Act Guideline Amendment"

The title of this post is the title of this notable and timely new report from the US Sentencing Commission. Here is a summary of its coverage and findings from this USSC webpage:

The publication Recidivism Among Federal Offenders Receiving Retroactive Sentence Reductions: The 2011 Fair Sentencing Act Guideline Amendment analyzes recidivism among crack cocaine offenders who were released immediately before and after implementation of the 2011 Fair Sentencing Act Guideline Amendment, and followed in the community for three years.

In order to study the impact of retroactive sentence reductions on recidivism rates, staff analyzed the recidivism rate for a group of crack cocaine offenders whose sentences were reduced pursuant to retroactive application of the 2011 Fair Sentencing Act Guideline Amendment. Staff then compared that rate to the recidivism rate for a comparison group of offenders who would have been eligible to seek a reduced sentence under the 2011 amendment, but were released before the effective date of that amendment after serving their full prison terms less good time and other earned credits.

Key Findings

The Commission's report aims to answer the research question, "Did the reduced sentences for the FSA Retroactivity Group result in increased recidivism?".

Key findings of the Commission’s study are as follows:

  • The recidivism rates were virtually identical for offenders who were released early through retroactive application of the FSA Guideline Amendment and offenders who had served their full sentences before the FSA guideline reduction retroactively took effect. Over a three-year period following their release, the “FSA Retroactivity Group” and the “Comparison Group” each had a recidivism rate of 37.9 percent.

  • Among offenders who did recidivate, for both groups the category “court or supervision violation” was most often the most serious recidivist event reported. Approximately one-third of the offenders who recidivated in both groups (32.9% for the FSA Retroactivity Group and 30.8% for the Comparison Group) had court or supervision violation as their most serious recidivist event.

  • Among offenders who did recidivate, the time to recidivism for both groups were nearly identical. The median time to recidivism for offenders who recidivated in both groups was approximately 14½ months.

March 28, 2018 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Implementing retroactively new USSC crack guidelines, New crack statute and the FSA's impact, New USSC crack guidelines and report | Permalink | Comments (7)

Thursday, March 22, 2018

Interesting new US Sentencing Commission analysis of possible impact of Sentencing Reform and Corrections Act of 2017

I just noticed on the US Sentencing Commission's website this recent letter from the USSC's Director of its Office of Research and Data to an analyst at the Congressional Budget Office. Here is how the letter gets started:

The Congressional Budget Office has requested the U.S. Sentencing Commission to assist it in its assessment of the budgetary impact of S. 1917, the Sentencing Reform and Corrections Act of 2017, were it to be enacted.  Enclosed with this letter is the Commission’s estimate of the impact of several sections of this bill on the sentences that would be imposed on federal offenders as well as the impact on the size of the federal prison population.

As you can see on the enclosed, the Commission has estimated the number of offenders who would be affected by each section of the bill for which an estimate was possible. Some of those sections have both prospective and retroactive impacts.  For the provisions that have both, the Commission has provided separate estimates of the number of offenders affected. The data used for this analysis was Commission data, however the retroactive analyses were based, in part, on information from the Federal Bureau of Prisons (BOP) as to offenders who were incarcerated as of October 28, 2017.

The detailed "Sentence and Prison Impact Estimate Summary" serves to confirm my long-standing belief that the corrections provisions of SRCA could and would impact many tens of thousands more prisoners than the sentencing reform provisions.  In rough particulars, the USSC analysis suggests about 7,000 current prisoners could benefit from the retroactive sentencing provisions of Title I of the SRCA, whereas over 75,000 current federal prisoners could be eligible for the corrections credits of Title II of the SRCA.  (Prospectively, according to the USSC analysis, a few thousand new offenders would benefit from the sentencing provisions of Title I of the SRCA.  And, though not discussed by the USSC, it is also likely tens of thousands of new offenders would also be able to benefit from the corrections credits of Title II of the SRCA.)

As previously reported, though the SRCA passed the Senate Judiciary Committee by a 16-5 vote last month, the White House has formally expressed support only for the prison reform components of the bill.  Senate Judiciary Chair Charles Grassley has indicated he wants to keep pushing the SRCA in its current form, but other important GOP leaders in the Senate and elsewhere seem prepared and eager only to move forward with prison reform at this time.  In light of these new USSC data, I sincerely hope Senator Grassley and lots of criminal justice reform advocates will appreciate that a huge number of current and future federal prisoners could and would benefit from enacting just the corrections piece of the SRCA.  Given widespread support for reform provisions that could have widespread impact, I hope we see some movement on the corrections front soon.  But, sadly, given an array of problematic personalities and politics, I am not optimistic.

A few prior related posts:

March 22, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Reentry and community supervision | Permalink | Comments (0)

Tuesday, March 20, 2018

"Gender Disparities in Plea Bargaining"

The title of this post is the title of this notable new article now available via SSRN authored by Carlos Berdejó.  Here is the abstract:

Across wide-ranging contexts, academic literature and the popular press have identified pervasive gender disparities favoring men over women in society.  One area in which gender disparities have conversely favored women is the criminal justice system.  Most of the empirical research examining gender disparities in criminal case outcomes has focused on judges’ sentencing decisions.  Few studies have assessed disparities in the steps leading up to a defendant’s conviction, where various actors make choices that constrain judges’ ultimate sentencing discretion.  This article addresses this gap by examining gender disparities in the plea-bargaining process.  The results presented in this article reveal significant gender disparities in this stage of the criminal justice system.

Female defendants are about twenty percent more likely than male defendants to have their principal initial charge dropped or reduced.  These gender disparities are greater in cases involving misdemeanors and low-level felonies. In cases involving serious felonies, male and female defendants achieve similar outcomes.  Defendants’ criminal histories also play a key role in mediating gender disparities.  While female defendants with no prior convictions receive charge reductions more often than male defendants with no prior convictions, male and female defendants with prior convictions are afforded similar treatment.  These patterns in gender disparities suggest that in these “low information” cases gender may be being used as a proxy for a defendant’s latent criminality and likelihood to recidivate.

Building upon these results and the existing literature documenting racial disparities in criminal case outcomes, the article explores the intersection of gender and race in determining disparities in the plea-bargaining process.  The results indicate that gender and racial disparities complement each other in a way that yields additive effects. The charge reduction rate for white female defendants is more than double that of black male defendants.  White male and black female defendants experience similar charge reduction rates, in-between those of white female and black male defendants.  Consistent with the pattern of gender disparities documented in the article, these inter-group disparities are greater in cases involving misdemeanor offenses and defendants with no prior convictions.

Prior related post:

March 20, 2018 in Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Race, Class, and Gender | Permalink | Comments (1)

Saturday, March 17, 2018

"Mass Incarceration: The Whole Pie 2018"

Pie2018The Prison Policy Initiative has an updated version of its terrific incarceration "pie" graphic and report now at this link. Here is part of the report's introductory text and subsequent discussion:

Can it really be true that most people in jail are being held before trial? And how much of mass incarceration is a result of the war on drugs? These questions are harder to answer than you might think, because our country’s systems of confinement are so fragmented. The various government agencies involved in the justice system collect a lot of critical data, but it is not designed to help policymakers or the public understand what’s going on. Meaningful criminal justice reform that reduces the massive scale of incarceration, however, requires that we start with the big picture.

This report offers some much needed clarity by piecing together this country’s disparate systems of confinement. The American criminal justice system holds almost 2.3 million people in 1,719 state prisons, 102 federal prisons, 1,852 juvenile correctional facilities, 3,163 local jails, and 80 Indian Country jails as well as in military prisons, immigration detention facilities, civil commitment centers, state psychiatric hospitals, and prisons in the U.S. territories. And we go deeper to provide further detail on why people are locked up in all of those different types of facilities.

This big-picture view allows us to focus on the most important drivers of mass incarceration and identify important, but often ignored, systems of confinement. The detailed views bring these overlooked parts of the “pie” to light, from immigration detention to civil commitment and youth confinement. In particular, local jails often receive short shrift in larger discussions about criminal justice, but they play a critical role as “incarceration’s front door” and have a far greater impact than the daily number suggests.

While this pie chart provides a comprehensive snapshot of our correctional system, the graphic does not capture the enormous churn in and out of our correctional facilities and the far larger universe of people whose lives are affected by the criminal justice system. Every year, 626,000 people walk out of prison gates, but people go to jail 10.6 million times each year. Jail churn is particularly high because most people in jails have not been convicted. Some have just been arrested and will make bail in the next few hours or days, and others are too poor to make bail and must remain behind bars until their trial. Only a small number (150,000 on any given day) have been convicted, generally serving misdemeanors sentences under a year.

With a sense of the big picture, a common follow-up question might be: how many people are locked up for a drug offense? We know that almost half a million people are locked up because of a drug offense. The data confirms that nonviolent drug convictions are a defining characteristic of the federal prison system, but play only a supporting role at the state and local levels. While most people in state and local facilities are not locked up for drug offenses, most states’ continued practice of arresting people for drug possession destabilizes individual lives and communities. Drug arrests give residents of over-policed communities criminal records, which then reduce employment prospects and increase the likelihood of longer sentences for any future offenses....

While this “whole pie” provides the most inclusive view of the various systems of confinement in the U.S. justice system available, these snapshots can’t capture all of the important systemic issues. Once we have wrapped our minds around the “whole pie” of mass incarceration, for example, we should zoom out and note that being locked up is just one piece of the larger pie of correctional control. There are another 840,000 people on parole and a staggering 3.7 million people on probation. Particularly given the often onerous conditions of probation, policymakers should be cautious of “alternatives to incarceration” that can easily widen the net of criminalization to people who are not a threat to public safety.

Beyond identifying the parts of the criminal justice system that impact the most people, we should also focus on who is most impacted and who is left behind by policy change. For example, people of color are dramatically overrepresented in the nation’s prisons and jails. These racial disparities are particularly stark for Blacks, who make up 40% of the incarcerated population despite representing only 13% of U.S residents. Gender disparities matter too: rates of incarceration have grown even faster for women than for men. As policymakers continue to push for reforms that reduce incarceration, they should avoid changes that will widen disparities, as has happened with juvenile confinement and with women in state prisons....

[A]rmed with the big picture of how many people are locked up in the United States, where, and why, we have a better foundation for the long overdue conversation about criminal justice reform. For example, the data makes it clear that ending the War on Drugs will not alone end mass incarceration, but that the federal government and some states have effectively reduced their incarcerated populations by turning to drug policy reform. Looking at the “whole pie” also opens up other conversations about where we should focus our energies:

  • What is the role of the federal government in ending mass incarceration? The federal prison system is just a small slice of the total pie, but the federal government can certainly use its financial and ideological power to incentivize and illuminate better paths forward. At the same time, how can elected sheriffs, district attorneys, and judges slow the flow of people into the criminal justice system?
  • Are state officials and prosecutors willing to rethink both the War on Drugs and the reflexive policies that have served to increase both the odds of incarceration and length of stay for “violent” offenses?
  • Do policymakers and the public have the focus to confront the second largest slice of the pie: the thousands of locally administered jails? And does it even make sense to arrest millions of poor people each year for minor offenses, make them post money bail, and then lock them up when they can’t afford to pay it? Will our leaders be brave enough to redirect corrections spending to smarter investments like community-based drug treatment and job training?
  • Can we implement reforms that both reduce the number of people incarcerated in the U.S. and the well-known racial and ethnic disparities in the criminal justice system?

March 17, 2018 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2)

Thursday, March 15, 2018

"Mandatory Minimum Penalties for Firearms Offenses in the Federal Criminal Justice System"

The title of this post is the title of this notable new 80-page report issued today by the United States Sentencing Commission. Here is the USSC's Summary and account of Key Findings from this webpage:

This publication is the third in the Commission’s series on mandatory minimum penalties. Using fiscal year 2016 data, this publication includes analyses of the two statutes carrying a firearms mandatory minimum penalty, 18 U.S.C. § 924(c) (relating to using or possessing firearms in furtherance of drug trafficking or crimes of violence) and the Armed Career Criminal Act, 18 U.S.C. § 924(e), as well as the impact of those provisions on the Federal Bureau of Prisons (BOP) population. Where appropriate, the publication highlights changes and trends since the Commission’s 2011 Mandatory Minimum Report....

Building directly on previous reports and the analyses set forth in the 2017 Overview Publication, this publication examines the use and impact of mandatory minimum penalties for firearms offenses. As part of this analysis, the Commission makes the following key findings:

Firearms mandatory minimum penalties continue to result in long sentences although they have decreased since fiscal year 2010.

  • In fiscal year 2016, offenders convicted under section 924(c) received an average sentence of over 12 years (151 months) of imprisonment, which is 13 months less than in fiscal year 2010. The average sentence length depended on the applicable mandatory minimum penalty under section 924(c), increasing from 118 months for the five-year mandatory minimum penalty to 302 months where a 30-year mandatory minimum penalty applied.
  • Similarly, in fiscal year 2016, offenders convicted of an offense carrying the 15-year mandatory minimum penalty under the Armed Career Criminal Act received an average sentence of over 15 years (182 months) of imprisonment, which is nine months less than in fiscal year 2010.
  • As a result of these long sentences, offenders convicted of an offense carrying a firearms mandatory minimum penalty continued to significantly contribute to the size of the Federal Bureau of Prisons’ population, constituting 24,905 (14.9%) of the 166,771 offenders in federal prison as of September 30, 2016.

Offenders charged with and convicted of multiple counts under section 924(c) received exceptionally long sentences as a result of the statutory requirement that the sentence for each count be served consecutively.

  • While only 156 (7.9%) of the 1,976 offenders convicted under section 924(c) in fiscal year 2016 were convicted of multiple counts under that statute, they received exceptionally long sentences. The average sentence for offenders convicted of multiple counts under section 924(c) exceeded 27 years of imprisonment (327 months), nearly two-and-a-half times the average sentence for offenders convicted of a single count under section 924(c) (136 months).
  • The average sentence for offenders who remained subject to the mandatory minimum penalty required by multiple counts under section 924(c) was even longer at almost 36 years (431 months).

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

  • The majority of section 924(c) offenders (85.5%) were also convicted of another offense, which is consistent with the statutory requirement that an offender must have used or possessed a firearm during and in relation to, or in furtherance of, an underlying federal offense in order to be convicted under section 924(c).
  • Conversely, 14.5 percent of offenders were convicted of an offense under section 924(c) alone, although those cases necessarily involved another federal offense for which they were not charged and convicted.
  • Those offenders convicted of an offense under section 924(c) alone received an average sentence that was five years shorter than offenders convicted under section 924(c) and another offense (99 months compared to 159 months).

Statutory relief under 18 U.S.C. § 3553(e) for providing substantial assistance to the government plays a significant role in the application and impact of firearms mandatory minimum penalties.

  • The 21.6 percent of offenders who received relief from the mandatory minimum penalty under section 924(c) for providing substantial assistance received average sentences of 95 months, compared to 166 months for offenders who remained subject to the mandatory minimum penalty at sentencing.
  • The impact of receiving relief is even more pronounced for offenders convicted of multiple counts under section 924(c). Such offenders received average sentences that were less than one-third as long as offenders who remained subject to the mandatory minimum penalty required under section 924(c)—136 months compared to 431 months.
  • Similarly, almost one-fifth (19.7%) of offenders convicted of an offense carrying the mandatory minimum penalty under the Armed Career Criminal Act received relief for providing substantial assistance, and their average sentence was 112 months compared to 200 months for offenders who remained subject to the mandatory minimum penalty at sentencing.

While the rate at which firearms offenders were convicted of an offense carrying a mandatory minimum has been stable, the number of offenders convicted of offenses carrying such penalties has decreased significantly since fiscal year 2010.

  • Less than one-third (30.8%) of all firearms offenders in fiscal year 2016 were convicted of an offense carrying a mandatory minimum penalty, which is almost identical to fiscal year 2010 (30.6%).
  • However, between fiscal years 2010 and 2016, the number of offenders convicted under section 924(c) decreased from 2,360 to 1,976, a 16.2 percent decrease. The number of offenders convicted of an offense carrying a mandatory minimum penalty under the Armed Career Criminal Act decreased 51.4 percent from 626 to 304, which is the lowest number of such offenders since fiscal year 2002 (n=292).
  • Firearms offenses accounted for 16.8 percent of all offenses carrying a mandatory minimum penalty in fiscal year 2016 compared to 14.4 percent in fiscal year 2010.

Firearms mandatory minimum penalties continue to impact Black offenders more than any other racial group.

  • Black offenders were convicted of a firearms offense carrying a mandatory minimum more often than any other racial group. In fiscal year 2016, Black offenders accounted for 52.6 percent of offenders convicted under section 924(c), followed by Hispanic offenders (29.5%), White offenders (15.7%) and Other Race offenders (2.2%).
  • The impact on Black offenders was even more pronounced for offenders convicted either of multiple counts under section 924(c) or offenses carrying a mandatory minimum penalty under the Armed Career Criminal Act. Black offenders accounted for more than two-thirds of such offenders (70.5% and 70.4%, respectively).
  • Black offenders also generally received longer average sentences for firearms offenses carrying a mandatory minimum penalty than any other racial group. In fiscal year 2016, Black offenders convicted under section 924(c) received an average sentence of 165 months, compared to 140 months for White offenders and 130 months for Hispanic offenders. Only Other Race offenders received longer average sentences (170 months), but they accounted for only 2.2 percent of section 924(c) offenders.
  • Similarly, Black offenders convicted of an offense carrying a mandatory minimum penalty under the Armed Career Criminal Act received longer average sentences than any other racial group at 185 months, compared to 178 months for White offenders, 173 months for Hispanic offenders, and 147 months for Other Race offenders. 

March 15, 2018 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Gun policy and sentencing, Mandatory minimum sentencing statutes | Permalink | Comments (1)

Wednesday, March 07, 2018

"Lethal Rejection: An Empirical Analysis of the Astonishing Plunge in Death Sentences in the United States from Their Post-Furman Peak"

The title of this post is the title of this interesting new paper by David McCord and Talia Roitberg Harmon now available via SSRN. Here is the abstract:

The authors gathered information on 1665 death-eligible cases nationwide for three years at decade intervals: 1994, 2004, and 2014.  In 517 cases death sentences were imposed; in 311 cases sentencers spared the defendants from death sentences, and in 837 cases prosecutors spared defendants from death sentences.  The Article proceeds in three Parts. Part I explains the methodology for unearthing relevant data and preparing it for analysis.  Part II analyzes declines in death sentences due to decreasing death eligibility, that is, fewer murderers over time meeting the criteria that made death a sentencing option.  Four reasons are examined: fewer death-eligible murders, the United States Supreme Court’s exemptions of juveniles who were less than eighteen years of age at the time of the commission of the murder, and persons with intellectual disability (known to the law as the “mentally retarded”); and the abolition of the death penalty in several states.  This Part concludes that about half of the decline in death sentences is attributable to decreased death-eligibility, mostly due to the steep decrease in the number of death-eligible murders.

Part III examines increasingly narrower perceptions of death-worthiness, that is, the evolution in attitudes among prosecutors and sentencers toward deeming fewer among the many death-eligible defendants worthy of death sentences.  This Part requires the most complicated analysis because unlike death-eligibility decisions, which are dictated by law, death-worthiness decisions emerge from an opaque brew of many factors, including, but not limited to, resource differentials among jurisdictions, prosecutorial attitudes, the wishes of the murder victim’s survivors, defense counsel performance, public opinion, and sentencer reactions.  But while death-worthiness decisions are often opaque in individual cases, each case generates empirical data from which patterns may be discerned. Part III uses such data to analyze ten questions and arrive at tentative answers:

• Did the advent of life-without-parole (hereinafter “LWOP”) reduce death sentences in jurisdictions where it was added as an option? (only in Texas)

• Did sentencers become more reluctant to return death sentences? (no)

• Were death sentences decreasingly imposed in less aggravated cases and increasingly imposed in more aggravated cases? (to some extent)

• Did presentation of greater numbers of mitigating factors conduce to fewer death sentences? (no)

• Did robbery during a murder became a less powerful aggravator? (yes)

• Did 18-to-20 year-olds benefit from a ripple effect from the exemption of juveniles? (yes)

• Did death sentences become less common in multiple perpetrator cases? (yes)

• Did low population counties increasingly drop out of death sentencing? (yes)

• Did low revenue counties increasingly drop out of death sentencing? (no) and

• Did a few traditionally high-volume death sentencing counties skew the figures by cutting back on the use of the death penalty due to local political factors? (yes)

March 7, 2018 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (8)

Tuesday, March 06, 2018

US Sentencing Commission releases 2017 Annual Report and Sourcebook of Federal Sentencing Statistics

2017-sourcebook-image_cropVia email, I just received this notice from the US Sentencing Commission about the publication of lots of new federal sentencing data:

Just Released

The United States Sentencing Commission’s 2017 Annual Report and 2017 Sourcebook of Federal Sentencing Statistics are now available online.

The Annual Report provides an overview of the Commission’s activities and accomplishments in fiscal year 2017.

The Sourcebook of Federal Sentencing Statistics presents tables, figures, and charts on selected district, circuit, and national sentencing data for fiscal year 2017. The Commission collected and analyzed data from more than 311,000 court documents in the production of this year’s Sourcebook.

I fear I won't be able to find all the time I would like to churn over all the notable data in these reports.  But I can already see from the start of the 2017 Annual Report some noteworthy data points, embedded in this overview of modern federal sentencing realities (with my emphasis added):

The Commission's data collection, analysis, and reporting requirements are impacted by the high volume of cases sentenced in the federal system annually. The Commission received approximately 310,000 documents for the 66,873 individual original sentencings that occurred in FY 2017.  To put this caseload in perspective, in FY 1995, the Commission received documentation for 38,500 original sentencings.  Select highlights from FY 2017 data are outlined below:

  • In FY 2017, the courts reported 66,873 felony and Class A misdemeanor cases to the Commission. This represents a decrease of 869 cases from the prior fiscal year.

  • The race of federal offenders remained largely unchanged from prior years.  In FY 2017, 53.2 percent of all offenders were Hispanic, 21.5 percent were White, 21.1 percent were Black, and 4.2 percent were of another race.  Non-U.S. citizens accounted for 40.7 percent of all offenders.

  • Drug cases accounted for the largest single group of offenses in FY 2017, comprising 30.8 percent of all reported cases. Cases involving immigration, firearms, and fraud were the next most common types of offenses after drug cases. Together these four types of offenses accounted for 82.4 percent of all cases reported to the Commission in FY 2017.

  • Among drug cases, offenses involving methamphetamine were most common, accounting for 34.6 percent of all drug cases.

  • Drug sentences remained relatively stable across all drug types in fiscal year 2017.  The average length of imprisonment increased slightly from FY 2016 in cases involving methamphetamines, from 90 months to 91 months, and also in marijuana cases, from 28 months to 29 months. In fiscal year 2017, 44.2 percent of drug offenders were convicted of an offense carrying a mandatory minimum penalty.

Overall, 79.8 percent of all sentences imposed in FY 2017 were either within the applicable guidelines range, above the range, or below the range at the request of the government.  Slightly less than half (49.1 percent) of all cases were sentenced within the guidelines range, compared to 48.6 percent in FY 2016.  In FY 2017, 20.1 percent of the sentences imposed were departures or variances below the guideline range other than at the government’s request, compared to 20.8 percent in fiscal year 2016.

March 6, 2018 in Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines | Permalink | Comments (2)

Wednesday, February 14, 2018

"Reentry Court Research: An Overview of Findings from the National Institute of Justice’s Evaluation of Second Chance Act Adult Reentry Courts"

The title of this post is the title of this new report on findings about eight programs that received funding and technical assistance from the Bureau of Justice Assistance under the Second Chance Act of 2007.  Here is part of the report's abstract:

Background: There are myriad challenges associated with the reentry of formerly incarcerated individuals, coupled with a dearth of rigorous research examining reentry courts. It is well known that formerly incarcerated individuals face overwhelming obstacles, such as limited occupational or educational experiences to prepare them for employment, drug and alcohol addictions, mental and physical health challenges, strained family relations, and limited opportunities due to the stigma of a criminal record.  Reentry courts seek to address these challenges by assessing the individuals for risks and needs; linking them to appropriate community-based services; and overseeing the treatment process through ongoing court oversight, probation or parole supervision, and case management.  Under the Second Chance Act (SCA) of 2007 (Pub. L. 110-199), the Bureau of Justice Assistance funded reentry programs including the eight sites participating in this National Institute of Justice Evaluation of SCA Adult Reentry Courts.  This document provides a summary overview of the evaluation and complements three annual reports that provide more detailed information on the program processes and populations, research methods, and findings....

Results: Results were mixed across sites.  One site consistently demonstrated positive outcomes across the interview, recidivism, and cost analyses with the reentry court successfully delivering more substance abuse treatment and other services than what was received by the comparison group.  In addition, reentry court participants out-performed the comparison group in reduced recidivism (re-arrests and re-conviction) and reincarceration (revocation and time in jail or prison).  Two sites had neutral, trending toward positive, results with reduced participant re-arrests but with other outcomes (such as convictions and re-incarceration) not significantly different between the participants and the comparison group.  Two other sites had mixed results (e.g., participants had significantly fewer re-arrests but significantly increased re-incarceration) and two had negative results (e.g., participants had significantly more re-arrests and incarceration while other outcomes were no different between groups).  Cost findings were similarly mixed with two sites experiencing cost savings due mainly to lower recidivism costs and fewer victimization costs for reentry court participants ($2,512 and $6,710 saved per participant) and the remainder experiencing loss (ranging from just over -$1,000 to almost -$17,000 loss per participant). The research protocol and process evaluation findings are documented in three annual project reports; research caveats include a lack of detailed treatment service data. Also, reentry court program investment costs are described, but the comparison of cost estimates is limited to outcomes and does not include net benefits based on investment in non-reentry court case processing in the comparison group.

Conclusions: Key processes that set the one site with positive outcomes apart from the other sites was the high level of consistency and intensity of substance abuse treatment, wraparound services for multiple criminogenic needs, high intensity supervision, as well as an increased use of praise from the judge along with other incentives and sanctions.  In addition, the eligibility criteria for this site required that participants have a substance use disorder with risk levels ranging from moderate to high (based on their local risk assessment with a three point scale that ranged from low to high).  In contrast, other site eligibility criteria did not require a substance use disorder and participant risk levels were mostly high to very high (depending on the assessment tool used and their specific scoring and risk category criteria).  It is possible that the sites with less positive results did not have the appropriate level and type of services consistently available to best serve the varying risk levels of their participants.

This detailed report reinforces yet again the conclusion I often, somewhat depressingly, reach when looking at careful research on an important topic: many of our most pressing criminal justice problems are really complicated and lack simple solutions.

February 14, 2018 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Wednesday, February 07, 2018

"Event dependence in U.S. executions"

The title of this post is the title of this new empirical paper authored by Frank Baumgartner, Janet M. Box-Steffensmeier and Benjamin Campbell.  Here is the abstract:

Since 1976, the United States has seen over 1,400 judicial executions, and these have been highly concentrated in only a few states and counties.  The number of executions across counties appears to fit a stretched distribution.  These distributions are typically reflective of self-reinforcing processes where the probability of observing an event increases for each previous event.  To examine these processes, we employ two-pronged empirical strategy.  First, we utilize bootstrapped Kolmogorov-Smirnov tests to determine whether the pattern of executions reflect a stretched distribution, and confirm that they do. Second, we test for event-dependence using the Conditional Frailty Model.

Our tests estimate the monthly hazard of an execution in a given county, accounting for the number of previous executions, homicides, poverty, and population demographics. Controlling for other factors, we find that the number of prior executions in a county increases the probability of the next execution and accelerates its timing.  Once a jurisdiction goes down a given path, the path becomes self-reinforcing, causing the counties to separate out into those never executing (the vast majority of counties) and those which use the punishment frequently.  This finding is of great legal and normative concern, and ultimately, may not be consistent with the equal protection clause of the U.S. Constitution.

February 7, 2018 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data | Permalink | Comments (3)

Thursday, February 01, 2018

"Mass Incarceration: New Jim Crow, Class War, or Both?"

The title of this post is the title of this interesting new empirical paper authored by Nathaniel Lewis. Here is the interesting paper's abstract and conclusion:

Using data from the National Longitudinal Study of Adolescent to Adult Health, I analyze racial and class disparities in incarceration.  My analysis shows that class status has a large and statistically significant effect on (1) whether or not men aged 24–32 years have ever been to jail or prison; (2) whether or not men are jailed after being arrested; (3) whether or not men have spent more than a month in jail or prison; and (4) whether or not men have spent more than a year in jail or prison.  After controlling for class, I do not find race to be a statistically significant factor for the first three outcome categories, but I do find that race has a significant impact on whether or not a man has spent more than a year in prison or jail....

This study takes a careful account of class and how it relates to race and incarceration rates.  Previous studies interested in racial disparities across various outcomes all too often fail to control for class at all, or else pick a single variable as a proxy for class, which comes with a set of confounders.  The constructed class variables used here attempt to balance out the confounders lurking in any one proxy variable.  The result, robust across different methods of composite construction, is that class appears to be a larger factor than usually reported when studying racial disparities. It may indeed come as a surprise to many that race is not a statistically significant factor for many incarceration outcomes, once class is adequately controlled for.

To an extent, this study provides weight to the assertion that mass incarceration is primarily about the systematic management of the lower classes, regardless of race.  It would be reasonable to conclude then that if policymakers wished to eliminate the phenomenon of mass incarceration, and the negative effects it has on black Americans, they should look to reducing class disparities in universal ways.  For example, single-payer health care, a federal job guarantee, a universal basic income, a livable minimum wage, universal childcare, universal education.  These are all policies that would likely reduce class disparities and provide the material means to lift a large swath of people out of the scope of the criminal justice system.

On the other hand, this study demonstrates a large racial gap, even controlling for class, when it comes to the most devastating outcome: long appearances in jail and prison. The current popular effort to draw attention to racial disparities as racial disparities certainly seems to still hold validity in light of this study. Nevertheless, while a focus on reducing class disparities in a material fashion clearly will not be enough to completely solve the problem of racial bias, it seems evident that this approach would do a lot of good for poor blacks and poor whites alike with respect to the cruel machinery of mass incarceration.

February 1, 2018 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1)