Sentencing Law and Policy

US Sentencing Commission releases FY 2023 second quarter sentencing data

Last week, the US Sentencing Commission released on its website this latest quarterly data report setting forth the "2nd Quarter Release, Preliminary Fiscal Year 2023 Data Through March 31, 2023."  These new data suggest that persisting impacts of COVID era developments are still echoing through federal sentencing caseloads.  For example, as reflected in Figure 2 of this data report, while the year prior to the pandemic averaged roughly 20,000 federal sentencings per quarter, the "new normal" now seems to be 16,000 total federal cases sentenced each quarter (with a decline in immigration cases primarily accounting for the decrease in overall cases sentenced).

As I have noted before, the other big COVID era trend was a historically large percentage of below-guideline variances being granted, and this trend has now extended over the last 11 quarters of official USSC data (as detailed in Figures 3 and 4).  I suspect this trend is just another facet of the different caseload and case mix.  Over the last two quarters, the official data show that only 42.7% of all federal sentences are being imposed "Within Guideline Range."  This number is not historically low, but it continues the modern statistical reality that considerably more federal sentences are imposed outside the guideline range (for a wide array of reasons) than are imposed inside the range.

Among other interesting data and stories within the data, I continue to be struck by the data on drug sentencing reflected in Figures 11 and 12.  These figures show, for the latest two quarters, that nearly 47% of all federal drug sentencings involved methamphetamine and that the fentanyl caseload has recently grown considerably.  (In FY 21, less than 10% of the drug sentencing caseload involved fentanyl; for the first half of FY 23, the fentanyl caseload is over 16%.) Still, the average sentence for all the meth cases is over eight years in prison, whereas the average for all the other drugs is under six years.  As I have put it before, the federal "war on drugs" these days is much more focused upon, and imposes longer prison sentencing upon, meth defendants than anyone else. 

New Sentencing Project report reviews "Adults 25 and Younger Sentenced to Life without Parole"

The Sentencing Project today released this new report on certain LWOP sentencing patterns titled "“Left to Die in Prison: Emerging Adults 25 and Younger Sentenced to Life without Parole.” Here are excerpts from the report's "Executive Summary" (with endnotes removed):

Beginning at age 18, U.S. laws typically require persons charged with a crime to have their case heard in criminal rather than juvenile court, where penalties are more severe.  The justification for this is that people are essentially adults by age 18, yet this conceptualization of adulthood is flawed.  The identification of full criminal accountability at age 18 ignores the important, distinct phase of human development referred to as emerging adulthood, also known as late adolescence or young adulthood.  Compelling evidence shows that most adolescents are not fully matured into adulthood until their mid-twenties.

The legal demarcation of 18 as adulthood rests on outdated notions of adolescence.  Based on the best scientific understanding of human development, ages 18 to 25 mark a unique stage of life between childhood and adulthood which is recognized within the fields of neuroscience, sociology, and psychology.  Thus, there is growing support for providing incarcerated people who were young at the time of their offense a second look at their original sentence to account for their diminished capacity.  A 2022 study found similar levels of public support for providing a second look at prison sentences for crimes committed under age 18 as for those committed under age 25.... 

Two in five people — 11,600 individuals — sentenced to LWOP between 1995 and 2017 were under 26 at the time of their sentence.  In Michigan, Pennsylvania, and California, nearly half of those sentenced to LWOP were younger than 26.  Nationally, the peak age at conviction was age 23, which is well within the period between youth and adulthood.

Moreover, two thirds (66%) of people under 26 years old sentenced to LWOP are Black compared with 51% of persons sentenced to LWOP beyond this age. As we show in this report, our analysis finds that being Black and young has produced a substantially larger share of LWOP sentences than being Black alone. This fact reinforces the growing understanding that extreme sentences disproportionately impact Black Americans.

The report’s findings support a recent sentencing trend recognizing emerging adulthood as a developmental stage; more than a dozen states have introduced or passed legislative reforms or adopted jurisprudential restrictions in recent years to protect emerging adults from extreme punishment.  These reforms utilize the latest scientific understanding of adolescence and young adulthood to recognize emerging adulthood as a necessary consideration in assigning culpability. 

In light of strong evidence showing the unique attributes of emerging adulthood, sentences that allow no review once adolescent development is concluded are especially egregious.

US Sentencing Commission releases a few updated "Quick Facts" and latest "compassionate release" data

The US Sentencing Commission has recently released some new sentencing data reports.  Long-time readers have long heard me praise the USSC for producing insightful little data documents in the form of its "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").  The USSC recent posted these four new entries:

• NEW  Offenders in the Federal Bureau of Prisons (May 2023)
• NEW  Drug Trafficking (May 2023)
• NEW  Fentanyl Trafficking (May 2023)
• NEW  Fentanyl Analogue Trafficking (May 2023)

There are so many notable and interesting little data items in these little documents, and I hope to find time to mine a few data notes in the days ahead.  In addition, the USSC's website promises "more updated Quick Facts coming soon."

In addition, the USSC also recently published this updated "Compassionate Release Data Report." This report, which has information covering from October 2019 through March 2023, includes new data on sentence reduction motions under section 3582(c)(1)(A) filed with the courts and decided during the first two quarters of fiscal year 2023. Not surprisingly, this data report shows continued month-over-month declines in the number of sentence reduction motions filed and granted since the heights of the COVID pandemic. And yet, the USSC data show that there are still more of these motions being filed and being granted in recent times than was being granted before the pandemic.

Prison Policy Initiative details "Punishment Beyond Prisons 2023: Incarceration and supervision by state"

Prison Policy Initiative has produced this intricate new report detailing how many folks are under correctional control in every state and throughout the entire US.  The report is titled "Punishment Beyond Prisons 2023: Incarceration and supervision by state," and here is how it gets started:

The U.S. has a staggering 1.9 million people behind bars, but even this number doesn’t capture the true reach of the criminal legal system.  It’s more accurate to look at the 5.5 million people under all of the nation’s mass punishment systems, which include not only incarceration but also probation and parole.

Altogether, an estimated 3.7 million adults are under community supervision (sometimes called community corrections) — nearly twice the number of people who are incarcerated in jails and prisons combined.  The vast majority of people under supervision are on probation (2.9 million people), and over 800,000 people are on parole.  Yet despite the massive number of people under supervision, parole and probation do not receive nearly as much attention as incarceration.  Policymakers and the public must understand how deeply linked these systems are to mass incarceration to ensure that these “alternatives” to incarceration aren’t simply expanding it.

We’ve designed this report specifically to allow state policymakers and residents to assess the scale and scope of their entire correctional systems.  Our findings raise the question of whether community supervision systems are working as intended or whether they simply funnel people into prisons and jails — or are even replicating prison conditions in the community.  The report encourages policymakers and advocates to consider how many people under correctional control don’t need to be locked up or monitored at all, and whether high-need individuals are receiving necessary services or only sanctions.

In this update to our 2018 report, we compile data for all 50 states and D.C. on federal and state prisons, local jails, jails in Indian Country, probation, and parole.  We also include data on punishment systems that are adjacent to the criminal legal system: youth confinement and involuntary commitment.  Because these systems often mirror and even work in tandem with the criminal legal system, we include them in this broader view of mass punishment. We make the data accessible in one nationwide chart, 100+ state-specific pie charts and a data appendix, and discuss how the scale and harms of these systems can be minimized.

US Sentencing Commission releases "geographic sentencing data" from FY22

I just saw that the US Sentencing Commission this week posted here its "geographic sentencing data" for Fiscal Year 2022.  The USSC webpage has links to localized data reports that provide all sorts of fascinating "data slices" about the federal sentencing world. Here is how the webpage explains the over 100 localized reports:

These reports examine federal sentencing statistics from each judicial district, the districts within each judicial circuit, and the districts within each state. Each report compares the statistics from the respective district, circuit, or state to the nation as a whole. Each set consists of the following figure and tables:

• Figure A - Federal Offenders by Type of Crime
• Figure B - Distribution of Primary Drug Type in Federal Drug Cases
• Table 1 - Distribution of Federal Offenders by Type of Crime
• Table 2 - Guilty Pleas and Trials in Each Circuit and District
• Table 3 - Guilty Pleas and Trials by Type of Crime
• Table 4 - Sentence Type by Type of Crime (National)
• Table 5 - Sentence Type by Type of Crime (District)
• Table 6 - Incarceration Rate of U.S. Citizen Offenders Eligible for Non-Prison Sentences by Type of Crime
• Table 7 - Sentence Length by Type of Crime
• Table 8 - Sentence Imposed Relative to the Guideline Range
• Table 9 - Sentence Imposed Relative to the Guideline Range in Each Circuit and District
• Table 10 - Sentence Imposed Relative to the Guideline Range by Type of Crime

Just a few clicks on some of the circuit reports and glances at Figure A highlight some interesting (though perhaps unsurprising) data about how very different caseload mixes can be in different regions.  For example, in the Fifth Circuit's district courts, nearly 60% of federal cases sentenced in FY 2022 were immigration cases, while about 20% were drug cases and less than 8% were firearm cases.  But, in the First Circuit's district courts, nearly 50% of the federal cases sentenced in FY 2022 were drug cases, while nearly 13% were firearm cases and less than 6% were immigration cases.

US Sentencing Commission releases FY 2023 first quarter sentencing data

Today the US Sentencing Commission released on its website its latest quarterly data report which sets forth "Preliminary Fiscal Year 2023 Data Through December 31, 2022."  These new data provide the latest accounting of how the COVID era continues to echo through federal sentencing.  For example, as reflected in Figure 2, while the three quarters prior to the pandemic averaged roughly 20,000 federal sentencings per quarter, the three quarters closing out 2020 had only between about 12,000 and 13,000 cases sentenced each quarter.  Calendar year 2021 had a partial rebounding of total cases sentenced, but the "new normal" seems to be just over 15,000 total federal cases sentenced each quarter (and Figure 2 shows that a decline in immigration cases primarily accounts for the decrease in overall cases sentenced).

As I have noted before, the other big COVID era trend was a historically large number of below-guideline variances being granted, and this trend has now extended over the last 10 quarters of offiical USSC data (as detailed in Figures 3 and 4).  I suspect this trend is just another facet of the different caseload and case mix.  In this most recent quarter, the official data show that only 42.2% of all federal sentences are imposed "Within Guideline Range."  This number is not an historic low, but it continues the modern statistical reality that now more federal sentences are imposed outside the guideline range (for a wide array of reasons) than are imposed inside the range.

There are a lot of interesting data and stories to mine from the last USSC data report, but for some reaosn I was especially struck by the data on drug sentencing reflected in Figures 11 and 12.  These figures show, for the latest quarter, that over 47% of all federal drug sentencings involved methamphetamine, which is more of the drug sentencingcaseload than powder and crack cocaine, heroin and fentanyl combined.  Morever, the average sentence for all those meth cases is over eight years in prison, whereas the average for all the others is under six years.  In other words, the federal "war on drugs" these days is much more focused upon, and imposes longer prison sentencing upon, the meth defendants than anyone else. 

USSC publishes 2022 Annual Report and latest Sourcebook of Federal Sentencing Statistics

Via email this morning, I learned that the US Sentencing Commission published on its website today its 2022 Annual Report and latest Sourcebook of Federal Sentencing Statistics.  Both data-rich publications have lots of interesting statistics providing lots of interesting views of the realities of (fiscal year) 2022 federal sentencing.  The email I received from the USSC flagged these "FY22 Fast Facts":

The Sourcebook presents information on the 64,142 federal offenders sentenced in FY22 (October 1, 2021 through September 30, 2022) — a sentencing caseload that increased by 6,855 from the previous fiscal year.

• Drug trafficking, immigration, firearms, and fraud crimes together comprised 82% of the federal sentencing caseload in FY22.  

• Methamphetamine continued to be the most common drug type in the federal system (49% in FY22).

• The portion of drug cases involving fentanyl increased markedly over the last year, such that fentanyl cases were the third most common among all drug cases. 

• Methamphetamine trafficking continued to be the most severely punished federal drug crime (94 months, representing an increase of 4 months from the previous year).

• 65% of drug offenders were convicted of an offense carrying a mandatory minimum penalty, holding relatively steady from the previous year.

Prison Policy Initiative reports on "Women’s Mass Incarceration: The Whole Pie 2023"

The folks at Prison Policy Initiative has released its latest update in its incarceration pie series with this new report titled "Women’s Mass Incarceration: The Whole Pie 2023" authored by By Aleks Kajstura and Wendy Sawyer. Everyone should click through to see all the great graphics that go with report, and here are parts of text toward the start and at the very end of the report:

With growing public attention to the problem of mass incarceration, people want to know about women’s experiences with incarceration.  How many women are held in prisons, jails, and other correctional facilities in the United States? Why are they there?  How are their experiences different from men’s?  Further, how has the COVID-19 pandemic changed the number of women behind bars?  These are important questions, but finding those answers requires not only disentangling the country’s decentralized and overlapping criminal legal systems, but also unearthing the frustratingly limited data that’s broken down by gender.

This report provides a detailed view of the 172,700 women and girls incarcerated in the United States, and how they fit into the even broader picture of correctional control.  We pull together data from a number of government agencies and break down the number of women and girls held by each correctional system by specific offense.  In this updated report, we’ve also gone beyond the numbers, using rare self-reported data from a national survey of people in prison, to offer new insights about incarcerated women’s backgrounds, families, health, and experiences in prison. This report, produced in collaboration with the ACLU’s Campaign for Smart Justice, answers the questions of why and where women are locked up....

Most notably, and in stark contrast to the total incarcerated population, where the state prison systems hold twice as many people as are held in jails, more incarcerated women are held in jails than in state prisons.  As we will explain, the outsized role of jails 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 data needed to explain exactly what happened, when, and why do not yet exist, not least because the data on women has long been obscured by the larger scale of men’s incarceration. Frustratingly, even as this report is updated using the same data sources from year to year, it is not a direct tool for tracking changes in women’s incarceration over time because we are forced to rely on the limited sources available, which are neither updated regularly nor always compatible across years....

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

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

CCJ report explores "The Relationship Between Sentence Length, Time Served, and State Prison Population Levels"

I keep noting this post from last year discussing the Council of Criminal Justice's impressive Task Force on Long Sentences, in part because that Task Force is continuing to produce all sorts of important research and analysis concerning long sentences (see prior posts linked below).  The latest report, which is available here, is authored by Gerald Gaes and Julia Laskorunsky and is titled "The Relationship Between Sentence Length, Time Served, and State Prison Population Levels."  Here is the part of the report's introduction and "key takeaways": 

Previous research for the Task Force shows that in recent years the share of the total U.S. prison population with sentences of 10 or more years has increased, driven by fewer people serving shorter terms.  In 2019, 57% of people in prison were serving a long sentence, up from 46% in 2005.  Over the same period, there was a 60% increase in the average amount of time served by people with long sentences.

This work builds on research conducted as part of the Robina Institute of Criminal Law and Criminal Justice’s Prison Release: Degrees of Indeterminacy (DOI) project, which examined the statutory and administrative policy frameworks that govern prison release (and thus time served) in each state, evaluated how these policies produced sizeable changes to time served in Colorado, and explored how back-end release discretion affects prison population levels across the United States.  This brief summarizes the relevant findings from the DOI project and provides additional analysis of the relationship between sentence length and time served.

Key Takeaways

• Actual time served in prison is often quite different from the sentence length pronounced in court, and therefore sentence length alone only partially explains the individual and policy-level implications of long sentences.
• The relationship between sentence length and time served varies greatly across states and jurisdictions due to the difference in the legal and statutory framework that governs prison release.
• States that have higher than average sentence length also have higher than average time served, but the relationship between these two factors is modest.
• The average judicial maximum sentence in states with highly indeterminate systems (7 years) is twice as long as in highly determinate states (3.5 years). However, the difference in average time served in highly indeterminate and highly determinate states is much narrower, ranging between 2.1 and 2.6 years.
• Some states are much more likely to impose long prison sentences than others. The proportion of people entering prison with long sentences ranges from 2% in Colorado to 66% in Michigan.
• Individuals serving long sentences in states with highly determinate systems spend, on average, nearly three times as long in prison as individuals serving long sentences in states with highly indeterminate systems.
• Nationally, back-end factors such as the allocation of sentence credit discounts, and for paroling states, the parole release framework explain more of the variation (60%) of average time served than variation in average sentence length (40%).
• States with identical average sentence length can have different average time served based on the degree of indeterminacy and back-end factors. For example, Oregon and Texas both had an average sentence length of 4.4 years in 2016, yet the average time served in Texas (2.1 years), a state with a high degree of indeterminacy, was lower than in Oregon (3.5 years), a state with a low degree of indeterminacy.

Prior related posts on CCJ's Task Force on Long Sentences:

• Notable CCJ new task force examining long prison terms
• Council on Criminal Justice releases "Long Sentences by the Numbers" 
• Council on Criminal Justice releases "Long Sentences: An International Perspective" 
• Council on Criminal Justice releases Illinois analysis of "The Public Safety Impact of Shortening Lengthy Prison Terms" 
• CCJ releases "Long sentences, better outcomes: Opportunities to improve prison programming" 

Sentencing Project releases "Ending 50 Years of Mass Incarceration: Urgent Reform Needed to Protect Future Generations"

The folks at The Sentencing Project have a new website and a new "featured campaign" (with its own webpage) titled "50 Years and a Wake Up: Ending The Mass Incarceration Crisis In America." As explained on the webpage: "The campaign raises awareness about the dire state of the U.S. criminal legal system, the devastating impact of incarceration on communities and families, and proposes more effective crime prevention strategies for our country."

The most recent publication from the campaign is titled "Ending 50 Years of Mass Incarceration: Urgent Reform Needed to Protect Future Generations."  This eight-page document has a number of graphics and charts; its text begins this way (footnotes removed):

By year end 2021, the U.S. prison population had declined 25% since reaching its peak in 2009.  Still, the 1.2 million people imprisoned in 2021 were nearly six times the prison population 50 years ago, before the prison population began its dramatic growth. The United States remains a world leader in incarceration, locking up its citizens at a far higher rate than any other industrialized nation.

At the current pace of decarceration, averaging 2.3% annually since 2009, it would take 75 years — until 2098 — to return to 1972’s prison population.

It is unacceptable to wait more than seven decades to substantively alter a system that violates human rights and is out of step with the world, is racially biased, and diverts resources from effective public safety investments.  To achieve meaningful decarceration, policymakers must reduce prison admissions and scale back sentence lengths — both for those entering prisons and those already there.  The growing movement to take a “second look” at unjust and excessive prison terms is a necessary first step.  As the country grapples with an uptick in certain crimes, ending mass incarceration requires accelerating recent reforms and making effective investments in public safety.

Another longer document in this campaign was released a few weeks ago and is called "Mass Incarceration Trends." Among other part of that document is a chart highlighting that an era of massively increased incarceration also brought massive increases in community supervision:

As depicted in Figure 3, probation and parole have expanded both in the absolute number and length of supervision for several decades now.  Between 1980 and 2020, the number of people on probation nearly tripled and the number of people under parole supervision nearly quadrupled.

Bureau of Justice Statistics releases "Federal Justice Statistics, 2021"

This week, the Bureau of Justice Statistics released this big data report titled simply "Federal Justice Statistics, 2019." This press release about the report provides these highglights (which are only a small sample of data reported):

The study found that arrests by federal law enforcement agencies declined 35% from fiscal year (FY) 2020 to FY 2021, reaching the lowest level over the past two decades.  Due to the coronavirus pandemic, federal arrests declined 81% and cases charged in federal court declined 77%, from March to April 2020, with an additional decline of 25% in arrests and 20% in cases charged, from October 2020 to February 2021.

About 6 in 10 federal arrests in 2021 were for immigration, drug, or supervision violations (48,257).  The largest percentage decrease in arrests from FY 2020 to FY 2021 was for immigration offenses (down 72%), from 51,723 to 14,446 arrests.  Arrests for property offenses increased 11% during this time.

While federal arrests declined substantially from FY 2020 to FY 2021, the number of persons charged with a federal offense in U.S. district court decreased less than 1%, from 66,059 to 65,880.  During that period, the number of persons charged with violent offenses increased 18% and the number charged with public order offenses increased 13%, while the number of persons charged with immigration offenses decreased 18%....

Of the 63,380 defendants adjudicated in federal district courts in FY 2021, about 9 in 10 were convicted.  Among those convicted, nearly three quarters (74%) were sentenced to prison.  The median prison sentence for persons convicted was 37 months.  Among persons sentenced to prison, both white and black defendants were sentenced to a median of 60 months.

The type of sentence imposed in FY 2021 varied by sex, race or Hispanic origin and age of defendants.  Convicted males (77%) were sentenced to prison more commonly than convicted females (59%).  Those sentenced to prison had a median age of 35 years, while those sentenced to probation had a median age of 38 years.  A greater percentage of blacks (85%) and American Indians or Alaska Natives (82%) who were convicted were sentenced to prison compared to convicted persons who were white (77% ), Hispanic (71%) or Asian, Native Hawaiian or Other Pacific Islander (69%).

For the 10-year period from fiscal yearend 2011 to 2021, the number of persons under federal correctional control declined 15%, from 410,887 to 350,543.  The proportion in confi nement or community supervision did not change during that period.  Approximately 3 in 5 of these persons were in secure confinement and 2 in 5 were on community supervision in each year.

Lots of new data and a notable date from the US Sentencing Commission

The US Sentencing Commission yesterday published two new data reports: (1) this updated compassionate release data report and (2) this FY 2022 fourth quarter sentencing data.  There are lots of stories within all these data, though I still see the top stories to be those discussed here before: there are dramatic district variations in compassionate release grant rates and there are still relatively few "within guideline" sentences" being imposed by judges.

Specifically, on compassionate release, the three districts of Georgia show one notable example of variation: the Southern District of Georgia has granted only 8 out of 296 sentence reduction motions for a 2.7% grant rate; the Middle District of Georgia has granted only 4 out of 265 sentence reduction motions for a 1.5% grant rate; but the Northern District of Georgia has granted 80 out of 174 sentence reduction motions for a 46% grant rate.  On original sentencing more generally, this most recent USSC data show that, for all of FY 22, only 42% of all federal sentences have been imposed "Within Guideline Range" (and the number is under 28% for "Drug Trafficking" cases).

For various reasons and in various ways, all these data in some sense reflect the consequences of the US Sentencing Commission having to function without a quorum and being unable to amend any guidelines for nearly five years.  But, of course, we now have a fully loaded Commission, and the Commissions are clearly hard at work on guidelines reforms.  We know that because the Commission has now officially announced that it will have a public meeting on January 12, 2023, and that announcement notes the meeting agenda is to include "Possible Vote to Publish Proposed Guideline Amendments and Issues for Comment."

The Bureau of Justice Statistics releases data on "Jail Inmates in 2021" and "Prisoners in 2021"

Just in time to ring in 2023, the Bureau of Justice Statistics in the US Department of Justice has a lot of great new data about incarceration levels and rates as of the end of 2021. This press release, titled "U.S. Jail Population Increased While Prison Population Decreased in 2021," provides these highlights (and links) to the lastest data:

The Bureau of Justice Statistics is announcing the release of statistical tables on Jail Inmates in 2021 and Prisoners in 2021. Of note, the two incarcerated populations diverged in 2021, with the number of persons held in local jails increasing by 16% from 2020, while the number of persons in prison decreased 1%.  Both populations decreased from 2019 to 2020 due to the COVID-19 pandemic.

Regarding the jail population, local jails held 636,300 persons on the last weekday in June 2021, up from 549,100 at midyear 2020.  The number of males confined in local jails increased 15% from 2020 to 2021, while females increased 22%.

The racial and ethnic composition of people held in local jails remained stable from 2020 to 2021.  At midyear 2021, about 49% of people in local jails were white, 35% were black, and 14% were Hispanic. American Indians or Alaska Natives; Asians, Native Hawaiians, or Other Pacific Islanders; and persons of two or more races together accounted for 2% of the total jail population.

At midyear 2021, 29% of persons held in jail (185,000) were convicted, either serving a sentence or awaiting sentencing on a conviction, while 71% (451,400) were unconvicted, awaiting court action on a current charge or held in jail for other reasons.  Unconvicted people in jail accounted for 81% of the increase in the jail population from midyear 2020 to midyear 2021.  Three-quarters (76%) of all persons incarcerated in local jails at midyear 2021 were held for felony offenses (485,700 persons) compared to 18% (114,000) for misdemeanors and 6% (36,600) for other types of offenses.

Based on the occupancy rate, jails are still less crowded than about a decade ago.  At midyear 2021, about 70% of jail beds were occupied, which is higher than the occupancy rate of 60% at midyear 2020 but lower than the rates from 2011 to 2019, which ranged from 81% to 85%.

The number of persons supervised by local jails outside of a jail facility increased by 12,100 (31%) from midyear 2020 to midyear 2021.  At midyear 2021, local jails supervised 50,800 persons in various programs, such as electronic monitoring, home detention, day reporting, community service, alcohol or drug treatment programs, and other pretrial supervision and work programs outside of a jail facility.

Regarding the U.S. prison population, for the eighth consecutive year, the number of persons held in U.S. prisons declined, dropping from 1,221,200 at yearend 2020 to 1,204,300 at yearend 2021.  The overall decline reflected a decrease in prison populations in 32 states that was offset by an increase in 17 states and the federal Bureau of Prisons (BOP). This one-year change is vastly different from 2019 to 2020, when 49 states (data for Idaho are not comparable) and the BOP had a decrease in the number of persons in prison, largely due to the COVID-19 pandemic.

The imprisonment rate for adult U.S. residents in state or federal prison serving a sentence of more than one year also declined (down 2%) from yearend 2020 to 2021, from 460 to 449 sentenced prisoners per 100,000 adult U.S. residents.  Over the 10-year period from 2011 to 2021, the adult imprisonment rate declined 30%.

Among racial and ethnic groups, black persons had the highest imprisonment rate in 2021 (1,186 per 100,000 adult black residents), followed by American Indian/Alaska Natives (1,004 per 100,000), Hispanics (619 per 100,00), whites (222 per 100,000) and Asians (90 per 100,000).  Compared to 2011, adult imprisonment rates declined for all racial and ethnic groups in 2021, including a 40% decrease for black persons, 37% for Hispanics, 34% for Asians, 27% for whites, and 26% for American Indian/Alaska Natives.

Regarding the offense for which people were imprisoned, more than 651,800 persons (62% of all state prisoners) were serving sentences in state prison for a violent offense at yearend 2020, the most recent year for which offense data were available.  Forty-seven percent (66,500) of all persons in federal prison were serving time for a drug offense on September 30, 2021 (the most recent date for which federal prison offense data were available), and an additional 20% (28,500) of persons sentenced to federal prison were serving a sentence for a weapons offense.

At yearend 2021, private facilities contracted to state departments of corrections or the BOP held 96,700 persons, a 3% decrease from yearend 2020.  Local jail facilities held an additional 65,400 state or federal prisoners, down 11% from yearend 2020.  Together, private and local facilities housed more than 13% of the total U.S. prison population in 2021.

The findings in the Jail Inmates in 2021 – Statistical Tables report are based on data from BJS’s Annual Survey of Jails, which BJS has conducted annually since 1982, and Census of Jails, which BJS has conducted periodically since 1970. It is the 35th report in a series that began in 1982.  Findings in the Prisoners in 2021 – Statistical Tables report, the 96th report in the series, are based on data from BJS’s National Prisoner Statistics program, which has collected data on the U.S. prison population annually since 1926.

Jail Inmates in 2021 – Statistical Tables (NCJ 304888) was written by BJS Statistician Zhen Zeng, PhD. Prisoners in 2021 – Statistical Tables (NCJ 305125) was written by BJS Statistician E. Ann Carson, PhD. 

DPIC releases year-end report emphasizing botched executions and no 2022 increases in death penalty support

The Death Penalty Information Center this morning released this annual report under the heading "The Death Penalty in 2022: Year End Report; Public Support for Death Penalty at Near-Record Low Despite Perception that Violent Crime is Up."  Here is the start of the report's introduction, with lots and lots of interesting capital punishment data and discussion thereafter:

In a year awash with incendiary political advertising that drove the public’s perception of rising crime to record highs, public support for capital punishment and jury verdicts for death remained near fifty-year lows.  Defying conventional political wisdom, nearly every measure of change — from new death sentences imposed and executions conducted to public opinion polls and election results — pointed to the continuing durability of the more than 20-year sustained decline of the death penalty in the United States.

The Gallup crime survey, administered in the midst of the midterm elections while the capital trial for the 2018 mass shooting at Marjory Stoneman Douglas High School in Florida was underway, found that support for capital punishment remained within one percentage point of the half-century lows recorded in 2020 and 2021.  The 22 new death sentences imposed in 2022 are fewer than in any year before the pandemic, and just 4 higher than the record lows of the prior two years.  With the exception of the pandemic years of 2020 and 2021, the 18 executions in 2022 are the fewest since 1991.

One by one, states continued their movement away from the death penalty.  On December 13, 2022, Oregon Governor Kate Brown announced the commutation of the capital sentences of all 17 death-row prisoners and instructed corrections officials to begin dismantling the state’s execution chamber.  The commutations completed what she called the “near abolition” of the death penalty by the state legislature in 2019.  Thirty-seven states — nearly three-quarters of the country — have now abolished the death penalty or not carried out an execution in more than a decade.

For the eighth consecutive year, fewer than 30 people were executed and fewer than 50 people were sentenced to death.  The five-year average of new death sentences, 27* per year, is the lowest in 50 years.  The five-year average of executions, 18.6 per year, is the lowest in more than 30 years, a 74% decline over the course of one decade.  Death row declined in size for the 21st consecutive year, even before Governor Brown commuted the sentences of the 17 prisoners on Oregon’s death row.

2022 could be called “the year of the botched execution” because of the high number of states with failed or bungled executions. Seven of the 20 execution attempts were visibly problematic — an astonishing 35% — as a result of executioner incompetence, failures to follow protocols, or defects in the protocols themselves.  On July 28, 2022, executioners in Alabama took three hours to set an IV line before putting Joe James Jr. to death, the longest botched lethal injection execution in U.S. history.  Executions were put on hold in Alabama, Tennessee, Idaho, and South Carolina when the states were unable to follow execution protocols.  Idaho scheduled an execution without the drugs to carry it out.  One execution did not occur in Oklahoma because the state did not have custody of the prisoner and had not made arrangements for his transfer before scheduling him to be put to death.

New DPIC analysis finds "murder rates during the pandemic were highest in states with the death penalty"

The Death Penalty Information Center has posted this notable new review of murder data under the heading "DPIC Analysis: Pandemic Murder Rates Highest in Death Penalty States." I recoemmend the full posting, and here are excerpts (with links and the chart from the original, footnotes removed):

A DPIC analysis of 2020 U.S. homicide data has found that murder rates during the pandemic were highest in states with the death penalty and lowest in long-time abolitionist states.

DPIC reviewed the 2020 murder data compiled by the center-left think tank The Third Way for its March 2022 report, The Red State Murder Problem.  Then, taking the analysis out of the realm of politics and into the context of public policy, DPIC compared the data to states’ death-penalty status and historic usage of the death penalty.  That analysis found that pandemic murder rates generally correlated not just with the presence or absence of the death penalty in a state but with the states’ general level of death-penalty usage.

The data show that nine of the ten states with the highest pandemic murder rates — ranging from 9.9 to 20.5 murders per 10,000 residents — are death penalty states. On the other hand, eight of the eleven states with the lowest pandemic murder rates — ranging from 0.88 to 3.49 murders per 10,000 residents — had abolished the death penalty. DPIC found that the three death penalty states with the lowest pandemic murder rates — all 2.89 murders per 10,000 residents — have not carried out an execution in more than a decade, and one had a gubernatorial moratorium on executions.

Murder rates in the mostly high death-penalty usage, high pandemic-murder-rate states ranged from roughly triple to 23 times higher than in the mostly no death penalty, low pandemic-murder-rate states.

More than half of all death penalty states (14 of 27) had murder pandemic murder rates of at least 7.00 per 100,000 residents, and 30 percent (8 states) had pandemic murder rates of 10.29 per 100,000 residents or higher. By contrast, nearly two-thirds of the states that had abolished the death penalty (15 of 23) had pandemic murder rates of 5.14 or less per 100,000 residents, more than a third (8 states) had pandemic murder rates below 3.5 murders per 100,000 residents....

DPIC’s review of The Third Way pandemic murder data found that 15 of the 20 states with the highest pandemic murder rates are death penalty states, of which 12 have carried out 20 or more executions each in the past half century. Collectively, these 12 states have accounted for more than three quarters of all executions in the U.S. since the 1970s.

At the other end of the spectrum, none of the 23 states with the lowest pandemic murder rates are historically heavy users of capital punishment. Fifteen had abolished the death penalty, including nine who had not had the death penalty at any time during the 21st century.  The eight death penalty states with the lowest pandemic murder rates include two with moratoria on executions, six who have executed five or fewer people in the past half century, one that has carried out seven executions, and six who have not executed anyone in more than a decade.

Twenty U.S. states have carried out ten or more executions in the past half-century.  All of them, including three who have since abolished the death penalty, are among the 28 states with the highest pandemic murder rates.

Notable new research on modern operation and impact of Three Strikes law in California

I just came across this notable new report from the California Policy Lab released a couple of months ago titled simply "Three Strikes in California." Here is the 45-page report's listing of "Key Findings" (with bolding in the original):

• Three-Strikes enhancements affect a large share of the currently incarcerated prison population, but a smaller share of admissions to prison.  Less than one-third of prison admissions since 2015 involve a strike enhancement, with most receiving a doubled-sentence enhancement and a smaller percentage receiving a third-strike enhancement. At a given point in time however, individuals with strike enhancements constitute a larger proportion of the incarcerated population because they serve longer sentences

• Nearly 65% of admissions to prison with a doubled-sentence enhancement are for a non-violent, non-serious offense.

• Given the longer sentences imposed for serious or violent offenses, the reverse is true for people currently incarcerated: approximately 71% of those with doubled-sentence enhancements were convicted of a serious or violent offense.

• Black individuals are heavily over-represented among people serving sentences with third-strike enhancements, and to a lesser degree, with doubled-sentence enhancements. Overrepresentation exists relative to the racial/ ethnic composition of the prison population, and overwhelmingly relative to the racial/ethnic composition of the resident population of California.

• Judicial and prosecutorial discretion can mitigate the severity of strike enhancements.  The data suggests that judges and prosecutors may mitigate the severity of doubled-sentence enhancements by choosing (or accepting) lower sentence length options, but the effect of discretion on overall sentence length is modest.

• The use of strike enhancements varies widely across counties.  While third-strike sentences are considerably more rare today than in past years and the ordering across counties has changed over time, high-use and low-use counties documented in the early 2000s are largely similar in terms of rank today.

• The implementation of Three Strikes does not explain statewide declines in crime over time.  Early evaluations claiming large impacts on crime fail to account for national crime trends and also suffer from methodological flaws. More recent research suggests that Three Strikes may have a modest deterrent effect on relatively less serious crime, but likely does not account for the declines in California’s crime rates beginning in the mid-1990s.  Crime fell contemporaneously throughout the nation, and comparisons of crime trends in California to states that did not pass Three-Strikes laws reveal very similar trends over the subsequent two decades.

"Where Black Lives Matter Less: Understanding the Impact of Black Victims on Sentencing Outcomes in Texas Capital Murder Cases from 1973 to 2018"

The title of this post is the title of this recent article published in the Saint Louis University Law Journal authored by Jelani Jefferson Exum and David Niven.  Here is part of its abstract:

Scholars and advocates have long acknowledged that the death penalty is disproportionately applied to Black offenders.  It is also well known that the race of a victim is a leading factor in a capital defendant’s risk of receiving the death penalty, with those convicted of murdering whites significantly more likely to receive the death penalty than those convicted of murdering Blacks.  This Article takes an in-depth look at statistics covering the sentencing outcomes in capital murder cases in Texas from 1973 to 2018, revealing the clear evidence that race matters in the imposition of the death penalty.  However, this Article does not simply join the chorus of voices that have recognized the racial disparity in the death penalty.  Rather, the authors argue that the lesson from the Black victim effect on the death penalty decision fits into the broader, historic, and present-day context of devaluing Black lives. As the Texas example provides, the devaluing effect of Blackness is apparent.  This is not simply a failure to recognize the value of Black lives — as the Black Lives Matter movement exposes — but a reflection of the societal view that Blackness actually reduces the value and importance of all things — from property to community spaces to ultimate humanity. In life, Black people are vastly under-protected by the law, and the same is true for Black people even in a system designed to exact retribution for death.  When we accept the fact that the death penalty reveals that Black deaths do not matter, then it becomes apparent that there is not an antiracist fix for the death penalty other than its abolition.

In this Article, the authors present the most comprehensive data ever assembled on capital murder cases in Texas to affirm that the scope of the race of victim difference is jarring.  This data shows how pervasive race is in death penalty outcomes.  In every single comparison the racial disparity was statistically significant, and harsher punishment was associated with white victims than with African American victims, who clearly mattered less.  The truth, of course, is that Black victims matter as much as any, even if the legal system and society haven’t recognized their value. Within a database of thousands of cases there are thousands of tragic stories of lives upended by acts of an almost unspeakable nature.  The details differ from case to case, but across all those thousands of cases the race of victim disparity persists.  The math is straightforward.  Indeed, the odds against the patterns seen here — emerging by chance — are truly astronomical.  The race of the victim matters in the Texas criminal justice system.

As a matter of jurisprudence and policy making, however, the meaning of this data is uncertain.  When legislators debate the death penalty, racial disparities are among the most frequently cited concerns of opponents of the death penalty.  Supporters of the death penalty, however, dispute both the math and the meaning of findings of racial disparities, taking particular offense at the suggestion that race influences sentencing or influences their own views. These authors argue that abolition is the only corrective approach.  We must make the radical choice to uproot systems, like the death penalty, that allow the anti-Black biases in our national consciousness to not only thrive, but to be just.  To do otherwise is to perpetuate a system where Black lives matter less.

US Sentencing Commission releases latest "Compassionate Release Data Report" with detailed data through March 2022

I just noticed that the US Sentencing Commission late last week published this updated compassionate release data report, which includes data on all "motions decided by the courts during fiscal years 2020, 2021, and the first half of 2022 (October 1, 2019 – March 31, 2022)."   As I have noted with prior data runs, there are lots and lots of interesting data points throughout this report covering the period just before, during and after the heights of the COVID pandemic.  

As I also have noted before, perhaps most striking data points are the dramatic variations in grant rates from various districts.  As but one of many remarkable examples, I must note again the stark disparities in the three districts of Georgia: the Southern District of Georgia granted only 6 out of 272 sentence reduction motions for a 2.2% grant rate; the Middle District of Georgia granted only 4 out of 238 sentence reduction motions for a 1.7% grant rate; but the Northern District of Georgia granted 80 out of 174 sentence reduction motions for a 46% grant rate.  And the District of Maryland — with a total of 244 sentencing reduction motions granted (though "only" a grant rate of 33%) — granted more of these motions than all the courts of five different circuits (and circuit grant rates ranged from a low of 9.8% in the Fifth Circuit to a high of 29.6% in the First Circuit).

I expect the newly confirmed Sentencing Commission will be giving these data a good luck as the consider revisions to the out-of-data guideline that is supposed to help courts considering sentencing revision motions brought under 18 U.S.C. § 3582(c)(1)(A).  

Fascinating data and transparency project from Colorado district attorneys

The Denver Post has this lengthy and interesting account of a remarkable new data project in Colorado involving numerous district attorneys.  The piece should be read in full and is headlined "Eight Colorado DAs unveil detailed data about prosecutions, racial disparities; Public dashboards show racial disparities, offer unprecedented detail."  Here is how the article gets started:

Eight Colorado district attorneys released detailed data about their operations Thursday in an attempt to be more transparent with the public amid broader criticism of racial disparities in and distrust of the U.S. criminal justice system.

The data offers a look at the inner workings of Colorado’s prosecutors in unprecedented detail, with researchers tracking 55 different aspects of prosecution, ranging from charging and bond decisions to sentencing to how long cases take to be resolved

“For too long and too often, the justice system feels like a black box of information,” 18th Judicial District Attorney John Kellner said during a news conference Thursday. “…That changes today.”

The data is presented publicly in online dashboards — collected at data.dacolorado.org — for each of the eight offices that participated in the research project, which was funded by an $882,000 grant from the Microsoft Justice Reform Institute. The research was carried out by the University of Denver’s Colorado Evaluation and Action Lab and by the Prosecutorial Performance Indicators project.

New Sentencing Project report addresses "How Many People Are Spending Over a Decade in Prison?"

The Sentencing Project has long done a lot of great work on long sentences, especially through various reports on life sentences (examples here and here).  Today, The Sentencing Project has a notable new publication looking at persons serving sentences of a decade or longer.  This new report is titled with a question: "How Many People Are Spending Over a Decade in Prison?".  But the subtitle of the report provides this answer: "In 2019, over half of the people in U.S. prisons — amounting to more than 770,000 people — were serving sentences of 10 years or longer — a huge jump from 2000."  Here are other "key findings" from the start of the report:

• Nearly one in five people in U.S. prisons—over 260,000 people—had already served at least 10 years in 2019. This is an increase from 133,000 people in 2000—which represented 10% of the prison population in that year.

• In California, 29% of imprisoned people had already served at least 10 years in 2019. In Washington, DC, the level was even higher in 2020, at 39%. By 2021 in Texas, 25% of imprisoned people had served at least a decade.

• Over 770,000 people in U.S. prisons were serving sentences of 10 years or longer in 2019—56% of the total prison population. This is an increase from 587,000 people in 2000—which represented 44% of the prison population in that year.

• The 12 U.S. jurisdictions where two-thirds or more of the prison population are serving sentences of at least a decade are: Georgia, West Virginia, Alabama, Montana, Hawaii, Oklahoma, Louisiana, Utah, Maryland, Michigan, Mississippi, and Washington, DC.

• In 2019, Black Americans represented 14% of the total U.S. population, 33% of the total prison population, and 46% of the prison population who had already served at least 10 years.

Great new Robina Institute report on "Examining Prison Releases in Response to COVID"

I was so pleased to see this week that the Robina Institute of Criminal Law and Criminal Justice has this great big new report titled "Examining Prison Releases in Response to COVID: Lessons Learned for Reducing the Effects of Mass Incarceration."  The full 86-page report is a must read and it so rich and intricate, I can only here excerpt a portion of the executive summary:

In response to the global pandemic in 2020, states and the federal government began to make non-routine releases from prison in order to reduce prison populations to allow for social distancing in prison facilities. This report is aimed at describing where such prison releases occurred, the legal mechanisms used to achieve these releases, and the factors within jurisdictions that made non-routine prison releases more or less likely to occur. We write this report, not to examine the national response to the pandemic, but to better understand when and how extraordinary measures may be used to effect prison release, and to determine whether there are lessons from this experience that can be applied to reducing the effects of mass incarceration.

Prevalence of Release:

• We estimate that a total of 80,658 people were released from prisons in 35 jurisdictions (34 states and the federal prison system) due to COVID-related policies, which was equivalent to about 5-1/2% of the total state and federal prison population in 2019.
• Most COVID-related releases were quite modest, amounting to the equivalent of less than 10% of the 2019 prison populations in 27 of the 35 jurisdictions in which releases occurred (Figure 2).

Legal Mechanisms:

• The legal mechanisms used most frequently to release people from prison during the pandemic were parole (11 jurisdictions), compassionate release (10 instances in 9 jurisdictions), home confinement (8 jurisdictions), commutation (7 jurisdictions), and good time or earned time credits (6 jurisdictions) (Figure 3).

Criteria for Release:

• Type of crime, COVID health risk, and time left to serve on one’s sentence were the criteria most frequently used — either alone or in combination — to determine eligibility for release due to COVID-related policies.
• Most release groups (39 of 73) required that a person had to have been convicted of a non-violent offense (Figure 4).
• COVID health risks — addressing both medical vulnerability and age — were used as criteria in 38 of 73 release groups (Figure 6).
• Most release groups (37 of 73) required that a person have a short time left to serve on their sentence (Figure 7). Though the amount of time varied from 30 days in New Mexico to 5 years in Kentucky, the average was 9 months, and the most frequently used time period was 12 months.

Political and Structural Influences:

• Gubernatorial leadership played a larger role in whether the jurisdictions made releases, with fewer jurisdictions with Republican leadership making releases. However, determinacy may have affected how many releases were possible, with indeterminate jurisdictions making larger releases than determinate jurisdictions regardless of political leadership.
• All but three Democratic-led jurisdictions (21 of 24) made COVID-related prison releases while only about half of Republic-led jurisdictions (14 of 27) did so (Table 4).
• Nearly all of the jurisdictions (7 of 8) with the largest COVID-related releases — those greater than 10% of the 2019 prison population — were indeterminate in structure.

US Sentencing Commission reports on "Older Offenders in the Federal System"

I received an email this morning spotlighting two interesting and important new data reports from the US Sentencing Commission. One of these new USSC reports is this 68-page effort titled "Older Offenders in the Federal System." Highlights are provided via this USSC webpage where one can find this "Summary" and "Key Findings":

Congress requires courts to consider several factors when determining the appropriate sentence to be imposed in federal cases, among them the “history and characteristics of the defendant.”  The sentencing guidelines also specifically authorize judges to consider an offender’s age when determining whether to depart from the federal sentencing guidelines.  In this report, the Commission presents information on relatively small number of offenders who were aged 50 or older at the time they were sentenced in the federal system.  In particular, the report examines older federal offenders who were sentenced in fiscal year 2021 and the crimes they committed, then assesses whether age was given a special consideration at sentencing.  This report specifically focuses on three issues that could impact the sentencing of older offenders: age and infirmity, life expectancy, and the risk of recidivism.

Older offenders commit fraud and sexual offenses at higher rates than all other offenders.

• Older offenders had roughly three times the rate of fraud offenses (17.8%) and a greater proportion of sex offenses (7.3%), compared to offenders under age 50 (6.4% and 4.1%, respectively).
• The rate of offenders committing sex offenses increased incrementally as the age of the offender increased. Offenders 70 and older committed sex offenses at nearly three times the rate (11.9%) of offenders under the age of 50 (4.1%).

Roughly 40 percent (40.7%) of older offenders had a physical disability prior to arrest for the instant offense.

• The rate of offenders with a disability increased incrementally as offenders' age at sentencing increased, so that roughly two-thirds (63.3%) of offenders 70 and older had a physical disability.

About one-third (31.2%) of older offenders had used drugs or misused prescription drugs in the year prior to arrest.

• Among older drug users, the most used substances were marijuana (32.4%) and methamphetamine (28.5%).

Older offenders have less extensive criminal histories, compared to all other federal offenders.

• More than half (52.5%) of older offenders were in Criminal History Category (CHC) I, the lowest criminal history category, compared to 37.5 percent of offenders under 50 years of age.

The overwhelming majority (80.1%) of older offenders were sentenced to prison. However, older offenders were also more likely to receive fines and alternative sentences, compared to offenders under age 50.

• The oldest offenders were the most likely to receive an alternative sentence or fine; roughly a third (31.3%) of offenders 65 through 69 and more than 40 percent (42.1%) of offenders 70 and older received an alternative sentence or fine.
• The oldest offenders were most likely to have received sentences that exceed life expectancy.

Nearly forty percent (38.6%) of offenders who were sentenced at 70 years of age or older received a sentence that exceeds their life expectancy, compared to 7.1 percent of offenders 65 through 69, and less than one percent of offenders under the age of 50.

In fiscal year 2021, a nearly equal proportion of older offenders (36.7%) were sentenced within the guideline range as received a below range variance (35.5%).

• The proportion of offenders receiving variances increased as an offender’s age at sentencing increased, with the oldest offenders being the most likely to receive a variance.
• Offenders 65 and older were nearly as likely to receive a variance (48.9%) as they were to receive a sentence under the Guidelines Manual (51.1%).

The recidivism rate of older offenders (21.3%) was less than half that of offenders under the age of 50 (53.4%).

• As offenders’ age at sentencing increased, recidivism rates decreased.
• Recidivism events for older offenders were less serious, compared to offenders under the age of 50.
• Older offenders take a longer time to recidivate, compared to their younger peers.

US Sentencing Commission reports on "Life Sentences in the Federal System"

I received an email this morning spotlighting two interesting and important new data reports from the US Sentencing Commission. One of these new USSC reports is this 40-page effort titled simply "Life Sentences in the Federal System." Highlights are provided via this USSC webpage where one can find this "Summary" and "Key Findings":

There are numerous federal criminal statutes authorizing a sentence of life as the maximum sentence allowed, such as for offenses involving drug trafficking, racketeering, and firearms crimes.  While convictions under these statutes are common, sentences of life imprisonment are rare, accounting for only a small proportion of all federal offenders sentenced. 

In February 2015, the Commission released Life Sentences in the Federal Criminal Justice System, examining the application of life sentences by federal courts during fiscal year 2013.  Using data from fiscal years 2016 through 2021, this report updates and augments the Commission’s previous findings by examining the offenses that led to the life sentences imprisonment imposed, along with offender demographics, criminal histories, and victim-related adjustments.

Offenders Sentenced to Life Imprisonment

• During fiscal years 2016 through 2021, there were 709 federal offenders sentenced to life imprisonment, which accounted for 0.2 percent of the total federal offender population.
• Almost half (48.7%) of offenders sentenced to life imprisonment were convicted of murder.
• Approximately half (47.5%) of offenders sentenced to life imprisonment were found to either have possessed a weapon in connection with their instant offense or were convicted under 18 U.S.C. § 924(c) — for possession or use of a firearm in furtherance of a crime of violence or drug trafficking crime.  This is almost five times the rate for offenders who were sentenced to less than life imprisonment (9.8%).
• Nearly one-third (31.4%) of offenders sentenced to life imprisonment received an aggravating role enhancement as an organizer, leader, manager, or supervisor in the offense, which is approximately eight times higher than those sentenced to less than life imprisonment (4.2%).
• Offenders sentenced to life imprisonment qualified as repeat and dangerous sex offenders in 11.8 percent of cases, in comparison to 0.6 percent of offenders sentenced to less than life imprisonment.
• The trial rate of offenders sentenced to life imprisonment was 75.6 percent, which was over thirty times higher than the 2.3 percent trial rate for all other federal offenders.

Offenders Sentenced to De Facto Life Imprisonment

• There were 799 offenders sentenced to de facto life imprisonment, which accounted for 0.2 percent of the total federal offender population.
• Half (50.6%) of offenders sentenced to de facto life imprisonment were convicted of sexual abuse.
• One-third (33.2%) of offenders sentenced to de facto life imprisonment were found to either have possessed a weapon in connection with their instant offense or were convicted under 18 U.S.C. § 924(c) — for possession or use of a firearm in furtherance of a crime of violence or drug trafficking crime.
• More than one-in-seven (15.4%) offenders sentenced to de facto life imprisonment received an aggravating role enhancement as an organizer, leader, manager, or supervisor in the offense.
• Offenders sentenced to de facto life imprisonment qualified as repeat and dangerous sex offenders in 39.4 percent of cases.
• The trial rate of offenders sentenced to de facto life imprisonment was 39.4 percent.

Notable debate over access to sentencing data as Ohio builds out new sentencing data platform

In a few posts over the last few years (linked below), I have flagged the work of some Ohio jurists and others in the development of a statewide sentencing database.  I have had the honor of playing a small role in this work, and I have found fascinating many of the challenges and debates surrounding efforts to build out the Ohio Sentencing Data Platform.  One big lurking issue all along is now spotlighted by this new local article headlined "Statewide judges’ group wants sentencing data collected under proposed database kept secret."  Here are the excerpts from a lengthy article worth reading in full: 

A group that represents Ohio’s common pleas court judges does not want the public to see data that would be collected under a proposed statewide sentencing database for fears it could be cherry-picked and lead to criticism of the courts.  The head of the Ohio Common Pleas Judges’ Association wrote in a letter to the Ohio Supreme Court’s sentencing commission last month that judges recognize the value in the creation of a database for their own use.

Judges, however, are concerned that attorneys, journalists and other organizations could selectively pull data from the database to use “as a basis to critique imposed sentences and advocate for an overhaul to Ohio’s sentencing statutes.”  “In short, the OCPJA has significant concerns that broad public accessibility to the data would negatively impact the independence of the judiciary and interfere with its discretion in sentencing decisions,” the group’s president, Morrow County Common Pleas Court Robert Hickson, wrote.

The letter urged the seven justices to scrap proposed changes to the rules of superintendence that govern the state’s courts.  That would allow the court to run the project through the sentencing commission and come up with new proposals. In the alternative, state lawmakers should pass legislation mandating the data be exempt from Ohio’s public record laws, the letter said.... Hickson wrote that the letter represents the “unanimous position” of the group’s board.  Cuyahoga County Common Pleas Court Administrative Judge Brendan Sheehan is the group’s first vice president....

Sheehan’s colleague on the bench and predecessor as administrative judge wrote a letter of his own to the Ohio Supreme Court justices in which he said the views of the state judges’ group “cannot be farther from my own.” “In my opinion, the fears and skepticism expressed in the OCPJA letter are unfounded,” Judge John J. Russo wrote.  Russo, who was elected in 2006 and served as administrative judge from 2014 to 2020, told cleveland.com and The Plain Dealer that keeping the data secret and available only to the judges was akin to creating a “secret club” and would only harm the public’s confidence in the justice system more than making it public....

Russo also said that the letter by the judges’ group does not reflect the stance of the majority of the Cuyahoga County Common Pleas Court.  The Ohio Public Defender’s Office, Ohio Bar Association, Black Lives Matter and Common Cause Ohio all urged the commission to make the data available to the public.

The leader of the Ohio Prosecuting Attorney Association expressed a similar concern that the data would not paint a complete picture of all of the factors that go into each sentencing decision, and it would be open to manipulation.  While the group stopped short of calling for the data to remain hidden from the public, it did challenge that the legislature would have to create the commission, rather than the court.

The letters are in response to the Ohio Supreme Court’s sentencing commission’s call for public comment on proposed rule changes that would create a uniform sentencing entry, a lengthy document that judges would fill out after each sentencing hearing that articulates why judges imposed each sentence.  Each county’s common pleas court uses its own system to document the sentences judges there hand down, and they vary widely.  Some courts in small, rural counties still use handwritten sentencing documents, the Supreme Court said in a 2021 article published in the court’s news letter.

The commission would take data from the document and enter it into a database kept by the court that would give those who can access it the ability to see what the average sentence each person convicted of a particular crime received in each county’s common pleas court.  The sentencing commission hopes that creating a central database for the entire state that is populated by a single, uniform document that each judge fills out will make it easier for the Ohio Department of Rehabilitation and Correction.  It would allow the prison system to keep track of the sentences each inmate is serving and prevent trial court judges from committing errors during sentencing that appellate courts would later overturn....

Ohio Supreme Court Justice Michael Donnelly, a former judge in Cuyahoga County who served on the bench alongside Sheehan and Russo, told cleveland.com and The Plain Dealer that the database will help judges make sure they’re doling out similar sentences.  “That’s not just a good idea. That’s what the law mandates now,” Donnelly said. “It’s just that, how do you do that with the lack of information and the lack of data that we have?”

Donnelly also said that the public has a right to know how their courts are operating and that he believes the data should be made public. “We all serve at the pleasure of the public,” Donnelly said of judges in state court. “Everything else about our decisions is reviewable. Why should the most important decision we make as judges, whether to incarcerate someone, be any different than any other decision we make in this system of checks and balances?”

Prior related posts:

• A notable judicial pitch for better sentencing data in the Buckeye State"
• "Making a great case for greater data to improve sentencing decision-making and sentencing systems" 
• Updating the Buckeye State's progress creating a needed felony sentencing database 

 

UPDATE:  Cleveland.com has published this notable new opinion piece authored by Judge Ronald B. Adrine under the headline "Ohio’s Black judges support public release of criminal-sentencing database information." Here are excerpts:

The Ohio Black Judges Association Inc. (OBJA) voices its strong support for the Supreme Court of Ohio’s plan to allow public access to a proposed criminal sentencing database compiled by, among other things, race, as referenced in a recent article which appeared in The Plain Dealer.  Regrettably, our support puts us at odds with the Ohio Common Pleas Judges Association, which opposes public access to the database....

Our members across the state are acutely aware of the fact that the lack of data impedes legitimate inquiry into the degree to which racial justice is, or is not, a reality in Ohio.  At minimum, the existence of an open-access criminal sentencing database will sensitize all judges who make sentencing decisions to the potential for implicit bias, where it exists, and to reassure them of their positive practices, where it does not!

The position taken by the Common Pleas Judges Association calls for worst-case speculation concerning the occasional misuse of the database, while overlooking the overwhelming benefits to be realized in the majority of situations where the database is accessed.  Aggressively promoting viable efforts to increase the public’s confidence in our courts and to seek justice system accountability for all are OBJA’s primary motivators for supporting public access to the database.

We would like to assume that the vast majority of the members of the Ohio Common Pleas Judges Association have nothing to fear from public access to their sentencing practices.  If that assumption is incorrect, then the case for creating and maintaining the database is made even stronger.

There may be legitimate reasons for racial or other disparities that have nothing to do with bias.  If that is the case, having the database will assist in identifying them. By the same token, if the sentencing practices of individual judges suggest the need for practice adjustments, then that fact should be brought to the attention of those judges and the public should be able to monitor their progress in eliminating any explicit or implicit bias uncovered.

Council on Criminal Justice releases "Long Sentences by the Numbers"

In this post a couple of month ago, I noted the formation of the Council of Criminal Justice's impressive Task Force on Long Sentences. Today, I was alerted to the release are this fascinating new resource from CCJ titled "Long Sentences by the Numbers."  The full resource merits a deep dive, and here are excerpts:

Launched by the Council in Spring 2022, the Task Force on Long Sentences is assessing our nation’s use of long prison terms and formulating recommendations to advance safety and justice.  This series of charts serves as a foundation for the deliberations of the group, a diverse set of experts from varied sectors of the criminal justice field and across the ideological spectrum.

The data below address three fundamental questions.  Each provides a different perspective on the nature and extent of long prison sentences, which the Task Force defines as a court-imposed prison term of 10 years or more, independent of the time people actually serve.

• Admissions: What are the number and share of people admitted with a long prison sentence? Admissions data show changes in the frequency with which courts impose long sentences.
• Population: What is the size of the prison population serving long sentences, and what share of the total population do these individuals represent?  Prison population data, based on a snapshot of people incarcerated at a moment in time (typically at year’s end), reveal how many people behind bars are serving long sentences.
• Releases: What are the number and share of people released from prison after serving a long sentence and how much time did they actually serve?  Every jurisdiction has statutes and policies such as discretionary parole and credits for good behavior that permit people to be released prior to serving their maximum sentence. Release data enable us to discern how many people are released after having served 10 or more years, independent of the upper limit of their sentences.

[These data are drawn] from varying combinations of up to 29 state prison systems submitted to the U.S. Department of Justice's National Corrections Reporting Program (NCRP) from 2005 through 2019.  Council researchers selected the states and time period because they offered the most complete and consistent set of relevant national-level data to describe basic trends in long sentences....

Key Takeaways

• People with long sentences account for a relatively small share of state prison admissions and releases, but because they serve long periods, their numbers stack up over time.  In 2019, 17% of people admitted to prison were sentenced to 10 years or more, and 3% of those released had served 10 years or more.  At year-end, 57% of people in prison were serving a long prison sentence, up from 46% in 2005.

• The length of time served by people sentenced to 10 years or more has grown. Between 2005 and 2019, the average amount of time served by this group increased from 9.7 years to 15.5 years.

• The share of people convicted of a violent crime who received long sentences grew from 7% in 2005 to 10% in 2019. The percentage of people convicted of property and drug offenses who received long sentences remained stable, at 3% and 2%, respectively.

• The shares of Black and White people receiving long sentences have grown over time and the gap between those shares has widened, from 1 percentage point in 2005 to 4 percentage points in 2019. When accounting for conviction offenses, Black people are more likely to receive long sentences for violent crimes while White people are for some property crimes. White people convicted of drug crimes were more likely than Black people to get a long sentence in 2005 but less likely by 2019.

• Compared to other age groups, people aged 55 and over are the fastest-growing age group serving long sentences. Between 2005 and 2019, the share of people serving long sentences who were aged 55 and over grew from 8% to 20%.

• Men are more likely than women to receive and serve a long sentence. On average, men are about 72% more likely to receive a long sentence and over three times more likely to serve a long sentence than women, mostly because men are convicted of more serious, violent crimes. Greater shares of both men (up 4%) and women (up 3%) received sentences of 10 years or more in 2019 than in 2005.

"Federal Sentencing of Illegal Reentry: The Impact of The 2016 Guideline Amendment"

The title of this post is the title of this notable new US Sentencing Commission report. This relatively short report (only 38 pages) is summarized on this USSC webpage providing an "Overview" and a bunch of "Key Findings." Here is that overview and some of the key findings:

Overview

In 2016, the United States Sentencing Commission promulgated an amendment that comprehensively revised the guideline covering illegal reentry offenses — §2L1.2 (Unlawfully Entering or Remaining in the United States).  The amendment, Amendment 802, became effective November 1, 2016, and represented the most comprehensive revision of a major guideline in the last two decades.  This report examines the impact of Amendment 802 by looking back at sentencings under §2L1.2 over the last ten fiscal years.  The report first describes the concerns leading to the amendment, including that §2L1.2’s 12- and 16-level increases were overly severe and led to variances, and that using the “categorical approach” to apply enhancements was overly complex, resource intensive, and increased litigation and uncertainty.  After outlining the changes made by Amendment 802, the report assesses its impact on guideline application for §2L1.2 offenders and on appeals involving §2L1.2.

Key Findings

• Over the last ten fiscal years, immigration offenders have represented either the highest number or second-highest number of offenders sentenced annually.  The vast majority of immigration offenders were sentenced under §2L1.2.
   
• Amendment 802 to the Guidelines Manual ameliorated concerns about the severity of §2L1.2’s enhancements.
  • While variance rates for §2L1.2 offenders remained largely consistent before and after the amendment, courts imposed sentences within the applicable guideline range at a higher rate on average (66.0%) in the five fiscal years after the amendment than the five fiscal years before the amendment (56.6%). Furthermore, the difference between the average guideline minimum and the average sentence imposed decreased from at least three months before the amendment to no more than one month between fiscal years 2017 and 2020, and slightly over two months in fiscal year 2021.
  • These sentencing trends likely are attributable to the decreasing severity of the sentencing enhancements applicable to offenders sentenced under §2L1.2. The number of offenders who received sentencing increases of 12 or more offense levels decreased substantially from 26,094 in the five fiscal years before the amendment to 5,497 in the five fiscal years after the amendment. The average sentencing increase similarly decreased from seven to four offense levels.
     
• Amendment 802 significantly simplified guideline application and reduced appeals.
  • In the five fiscal years before the amendment, 31,824 offenders sentenced under §2L1.2 (37.1%) received a sentencing enhancement that potentially required courts to analyze predicate offenses using the categorical approach. That number decreased considerably to only 59 offenders (0.1%) in the five fiscal years after the amendment.
  • After Amendment 802, the number of opinions on §2L1.2 appeals decreased by 90 percent, from 239 in fiscal year 2017 to 24 in fiscal year 2021. Notably, this decline occurred even while the number of immigration sentencings rose steadily from fiscal year 2017 to a ten-year high in fiscal year 2019. By contrast, before the amendment, appellate courts issued 249 opinions on §2L1.2 appeals in fiscal year 2016 alone, and two-thirds of the appeals raised application issues relating to the categorical approach.

"What Do Federal Firearms Offenses Really Look Like?"

The title of this post is the title of this notable new US Sentencing Commission report. This relatively short report (only 46 pages) is summarized via this USSC webpage providing an "Overview" and a bunch of "Key Findings." Here is that overview and some of the key findings:

This report provides in-depth information on federal firearms offenders sentenced under the primary firearms guideline, §2K2.1. The Commission has published reports on various aspects of firearms offenses, including reports on armed career criminals, mandatory minimum penalties, and firearms offenders’ recidivism rates. The Commission’s prior research shows that firearms offenders are generally younger, have more extensive criminal history, and are more likely to commit a new crime than other offenders. The Commission’s previous research also shows that firearms offenders are more likely than other offenders to engage in violent criminal behavior. This publication continues the Commission’s work and provides detailed information about offenders sentenced under §2K2.1.

• Firearms offenses are among the most common crimes prosecuted and sentenced in federal court....
• The guidelines exert a strong influence on the sentences imposed in firearms cases.
  • In fiscal year 2021, half (49.6%) of the felony offenders sentenced under §2K2.1 received a sentence within the guideline range, which is approximately ten percentage points higher than the within guideline range rate for all other offenders.
• Firearms offenders sentenced under §2K2.1 have criminal histories that are more extensive and more serious than other offenders.
  • Firearms offenders were more than twice as likely to have a prior conviction for a violent offense compared to all other offenders (60.6% compared to 29.0%).
• The vast majority of firearms offenders (88.8%) sentenced under §2K2.1 were prohibited from possessing a firearm.
  • Prohibited persons include offenders with a prior felony conviction or status in another prohibited class, such as aliens unlawfully in the United States, fugitives from justice, or persons who unlawfully use or are addicted to controlled substances.
• In addition to most §2K2.1 offenders being prohibited from possessing a firearm, firearms offenders often engaged in aggravating criminal conduct.
  • In more than one-quarter of §2K2.1 cases, the firearm facilitated, or had the potential to facilitate, another felony offense (most commonly drug trafficking)....
• Firearms offenses often involved stolen firearms or particularly dangerous weapons....
• The average sentence for §2K2.1 firearms offenders varied depending on the presence of aggravating factors.
  • Prohibited persons who did not engage in aggravating conduct received an average sentence of 35 months.
  • Courts imposed longer sentences on prohibited persons whose offenses involved:
    • a stolen firearm or a firearm with an altered or obliterated serial number (55 months);
    • a prohibited weapon (such as a sawed-off shotgun or machine gun) (58 months);
    • trafficking in firearms (62 months);
    • or the use of, or conspiracy to use, a firearm in connection with a crime of violence or drug trafficking crime (119 months).

US Sentencing Commission produces another great updated set of "Quick Facts" publications

Long-time readers have long heard me praise the US Sentencing Commission for producing a steady stream of insightful little data documents in the form of its "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").  After finalizing its fiscal year data, the USSC typically provides updated Quick Facts, and here are some of its newest ones:

Sentencing Issues

• Mandatory Minimum Penalties (June 2022)

Drugs

• Drug Trafficking (July 2022)
• Methamphetamine Trafficking (July 2022)
• Powder Cocaine Trafficking (July 2022)
• Crack Cocaine Trafficking (July 2022)
• Heroin Trafficking (July 2022)
• Marijuana Trafficking (July 2022)
• Oxycodone Trafficking (July 2022)
• Fentanyl Trafficking (July 2022)
• Fentanyl Analogue Trafficking (July 2022)

Firearms

• Section 924(c) (June 2022)
• Felon in Possession of a Firearm (June 2022)

Sex Offenses

• Sexual Abuse (June 2022)
• Child Pornography (June 2022)

Offender Groups

• Career Offenders (June 2022)

Furman at 50: DPIC provides a census of nearly 10,000 death sentences

As noted in this recent post, the US Supreme Court's remarkable death penalty opinion in Furman v. Georgia, 408 U.S. 238 (1972), is now a half-century old, which provides me with an excuse to do a series of "Furman at 50" posts.  Helpfully, I am not the only one celebrating this milestone, and the Death Penalty Information Center has created a remarkable "Death Penalty Census."  As described here, this "census is the most comprehensive database of death sentences ever assembled, containing more than 9,700 death sentences." Here is more:

In the census, DPIC has attempted to identify every death sentence handed down in the U.S. from the day Furman was decided through January 1, 2021 and track the status of each sentence. The data provide powerful evidence that the nation’s use of capital punishment continues to be arbitrary, discriminatory, and rife with error....

The database contains the name, race, and gender of each defendant sentenced to death; the state and county (or federal district or military branch) of prosecution; the year of sentencing; the outcome of the particular sentence; and the final outcome or current status of the case.

Here are just a few of many "key findings" from DPIC’s analysis of more than 9,700 death sentences that were sent to me via email:

• Fewer than 1 in 6 death sentences result in an execution.
• A death sentence is 3 times more likely to be reversed as a result of a court decision than it is to result in an execution.
• At least 189 people who were wrongfully convicted and sentenced to death have been exonerated since 1973. That is one person exonerated for every 8.2 people who are executed. (189 exonerations/1547 executions based on data updated through June 29, 2022.)
• More than 530 capital convictions and/or death sentences have been overturned because of, or resulted in exonerations involving, prosecutorial misconduct. That is nearly 5.5% of all death sentences imposed in the U.S. in the past 50 years.
• Fewer than 2.4% of all counties in the U.S. (just 75 counties) account for half of all death sentences imposed in state courts in the past 50 years.
• It is 5.9 times more likely that an execution carried out in the U.S. over the past 50 years involved one or more white victims (1207 cases) than that it involved only Black victims (206 cases). 78.1% of executions in the U.S. in the past 50 years were in cases involving white victims. 13.3% were in cases with only Black victims. 6.5% were in cases with only Latinx victims.
• Defendants of color constitute 52.8% of those sentenced to death over the past 50 years. Yet they make up 64.2% of death-row exonerees and 83.1% of all death-row prisoners later found to be ineligible for the death penalty because of intellectual disability.
• Death sentences have declined in the United States by approximately 90% after peaking at more than 300 per year for three consecutive years in the mid 1990s, including a 70% decline over the decade preceding the pandemic. There have been fewer than 50 new death sentences imposed each year since 2015.
• Executions have declined in the United States by approximately 75% after peaking at 98 in 1999, to an average of 23.6 in the five years before the pandemic. There have been fewer than 30 executions in the U.S. every year since 2015.

Related prior post:

• Furman at 50: so much and so little

US Sentencing Commission releases another recidivism report examining "status points" in criminal history calculations

Despite lacking a quorum, the US Sentencing Commission keeps churning out a remarkable amount of research in recent times, especially in the area of recidivism of federal offenders.  Today brings this notable notable USSC report on recidivism and criminal history under the title "Revisiting Status Points."  The term "status points" is a short-hard reference to the two points added to a defendant's criminal history score under guideline § 4A1.1(d) if he committed the offense while still serving a sentence in another case (eg, while being on probation or parole).  This webpage provides an overview and key findings from the new report:

Overview

In 2005, the Commission examined status points (addressed in §4A1.1(d)) as part of a broader analysis of how well the guidelines’ criminal history computation predicts recidivism.  This report revisits the examination of status points with greater focus, including a detailed analysis of their application and significance.  The report begins by outlining how criminal history is calculated under the guidelines and by reviewing prior Commission research on the association between criminal history and recidivism.  The report then examines how many offenders received status points in the last five fiscal years and compares them to offenders who did not receive status points.  Next, the report analyzes the rearrest rates for offenders with and without status points who were released from prison or began a term of probation in 2010.  Finally, the report considers how much status points contribute to the criminal history score’s prediction of rearrest.

Key Findings

In the last five fiscal years:

• Over one-third of federal offenders (37.5%) received two “status points” under §4A1.1(d) as part of their criminal history scores. For 61.5 percent of such offenders, the inclusion of the two points resulted in a higher Criminal History Category.
• The vast majority of offenders who received status points (92.6%) had criminal history scores that placed them in Criminal History Category III and higher, compared to a little less than half of offenders who did not receive status points (47.0%)....

Among offenders who were released in 2010:

• Those who received status points were rearrested at similar rates to those without status points who had the same criminal history score. For example, among offenders whose criminal history score was seven, 69.6 percent of those with status points and 70.4 percent of those without status points were rearrested in the eight years after release.
• Three-fifths (61.1%) of offenders who received status points had five or more criminal history points for prior sentences (i.e., before adding in two status points). These offenders had a statistically similar rearrest rate to offenders without status points who had the same number of points for prior sentences.
• The remaining two-fifths (38.9%) of offenders who received status points had one to four criminal history points for prior sentences (i.e., before adding in two status points). These offenders had a statistically higher rearrest rate than offenders without status points who had the same number of points for prior sentences.
• Status points only minimally improve the criminal history score’s successful prediction of rearrest — by 0.2 percent. With status points included in the calculation for eligible offenders, the score successfully predicts rearrest 65.1 percent of the time, compared to 64.9 percent of the time with status points removed.

US Sentencing Commission releases notable new report on recidivism rates for federal prisoners completing drug programs

The US Sentencing Commission today released this lengthy new report titled "Recidivism and Federal Bureau of Prisons Programs: Drug Program Participants Released in 2010." This report is the fifth in a series continuing the USSC's detailed examination of recidivism by federal offenders released in 2010.  This USSC webpage provides this brief account of the coverage and findings of the report:

In this report, the Commission provides an analysis of data on the recidivism of federal offenders who participated in Federal Bureau of Prisons (BOP) drug abuse treatment while incarcerated. The study examines whether completion of drug programs offered by the BOP impacted recidivism among a cohort of federal offenders who were released from prison in calendar year 2010. The report combines data regularly collected by the Commission, Federal Bureau of Investigation (FBI) criminal history records, and data on program completion and participation provided by the BOP.

In this report, Drug Program Participants were offenders who participated in one of the following programs:

• Residential Drug Abuse Program (RDAP)
  • The first group comprises 8,474 offenders who the BOP marked as eligible to participate in RDAP while serving time in BOP custody.
  • RDAP is the BOP’s “most intensive” drug treatment program and requires that participants receive treatment in a specialized unit that houses only RDAP participants
     
• Non-Residential Drug Abuse Program (NRDAP)
  • The second group comprises 4,446 offenders who were marked as eligible to participate in NRDAP.
  • NRDAP consists of drug treatment, conducted primarily in a group setting, over the course of 12 to 24 weeks.

  Key Findings

  This study observed a significant reduction in the likelihood of recidivism for offenders who completed the Residential Drug Abuse Treatment Program or the Non-Residential Drug Abuse Treatment Program.

  • RDAP Completers had lower rates of recidivism, compared to eligible offenders who did not complete or participate in the program. Less than half of RDAP Completers (48.2%) recidivated in the eight-year follow-up period of this study, compared to 68.0 percent of RDAP Eligible Non-Participants.
    • RDAP Completers were 27 percent less likely to recidivate compared to RDAP-Eligible Non-Participants.
    • RDAP Completers had higher post-release rates of drug-related recidivism, compared to RDAP Participants and RDAP Eligible Non-Participants.
  • NRDAP Completers had lower recidivism rates compared to offenders who did not complete or participate in the program. Nearly half (49.9%) of offenders who completed NRDAP recidivated during the study period, compared to over half (54.0%) of NRDAP Eligible Non-Participants.
    • NRDAP Completers were 17 percent less likely to recidivate compared to eligible non-participants and offenders with a history of substance abuse who served at least five months in BOP custody.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Summary

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

Highlights

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

• The 57,287 individual original cases reported to the Commission in fiscal year 2021 represent a decrease of 7,278 (11.3%) cases from fiscal year 2020, and the lowest number of cases since fiscal year 1999.  The number of offenders sentenced in the federal courts reached a peak in fiscal year 20114 and the number of cases reported in fiscal year 2021 was 33.5 percent below that level.
  • Despite the decrease in overall caseload, sizeable increases were reported in drug trafficking, firearms, sex abuse, child pornography and money laundering cases.

• Cases involving drugs, immigration, firearms, and fraud, theft, or embezzlement accounted for 83.1% of all cases reported to the Commission.
• Drug offenses overtook immigration offenses as the most common federal crime in fiscal year 2021, accounting for 31.3% of the total caseload.
  • Drug possession cases continued a five-year downward trend, decreasing 29.6 percent from fiscal year 2020, while the number of drug trafficking cases rose 7.4 percent after reaching a five-year low in 2020.
  • Two-thirds (67.7%) of drug trafficking offenders were convicted of an offense carrying a mandatory minimum penalty.
  • Methamphetamine remained the most prevalent drug type. The 8,494 methamphetamine cases accounted for 48.0 percent of all drug crimes. The proportion of methamphetamine cases has increased steadily since fiscal year 2017, when those cases accounted for 36.6 percent of all drug cases.
  • The number of fentanyl cases increased 45.2 percent from the year before and now constitute the fourth most numerous drug type. In contrast, the proportion of the drug caseload involving heroin and marijuana has steadily decreased over the last five years.

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

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

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

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

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

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

At yearend 2020, an estimated 5,500,600 persons were under the supervision of adult correctional systems in the United States, 11% fewer than at the same time the previous year.  This was the first time since 1996 that the total correctional population dropped to less than 5.6 million.  About 1 in 47 adult U.S. residents (2.1%) were under some form of correctional supervision at the end of 2020, a decrease from 1 in 40 (2.5%) at the end of 2019.  This report summarizes data on populations supervised by probation or parole agencies and those incarcerated in state or federal prisons or in the custody of local jails. 

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

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

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

FY21 Fast Facts

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

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

Agency Highlights

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

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

New Sentencing Project report details scope of youth confinement

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Can it really be true that most people in jail are legally innocent? How much of mass incarceration is a result of the war on drugs, or the profit motives of private prisons? How has the COVID-19 pandemic changed decisions about how people are punished when they break the law? These essential questions are harder to answer than you might expect. The various government agencies involved in the criminal legal system collect a lot of data, but very little is designed to help policymakers or the public understand what’s going on. As public support for criminal justice reform continues to build — and as the pandemic raises the stakes higher — it’s more important than ever that we get the facts straight and understand the big picture.

Further complicating matters is the fact that the U.S. doesn’t have one “criminal justice system;” instead, we have thousands of federal, state, local, and tribal systems. Together, these systems hold almost 2 million people in 1,566 state prisons, 102 federal prisons, 2,850 local jails, 1,510 juvenile correctional facilities, 186 immigration detention facilities, and 82 Indian country jails, as well as in military prisons, civil commitment centers, state psychiatric hospitals, and prisons in the U.S. territories.

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

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

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

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

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

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

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

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

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

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

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

Prior related post:

• "Dealing in Lives: Imposition of Federal Life Sentences for Drugs from 1990–2020" 

"Criminal Violations"

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Overview

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

Key Findings

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

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

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

1. Preliminary FY21 data reveal a continued decline in sentencings and a historic shift in the makeup of the federal drug caseload. Learn more ...

2. With the advent of COVID-19, tens of thousands of offenders sought compassionate release. The Commission tracked and reported this data throughout 2021. Learn more

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

6. The Commission expanded its catalog of interactive tools designed for those working in the federal criminal justice system.

IDA Expansion: Interactive Data Analyzer feedback has been very positive and users continue to #AskIDA for even more data. The Commission has listened to your feedback. IDA is now updated with enhanced filtering capabilities—including a brand new data filter for career offenders. Learn more

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

Vera Institute updates its Incarceration Trends website

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

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

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

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

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

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

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

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

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

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

• data on regional jail systems that serve multiple counties.

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

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

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

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

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

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

• At yearend 2020, an estimated 3,890,400 adults were under community supervision (probation or parole), down 276,500 from January 1, 2020.
• At yearend 2020, 862,100 adults were on parole supervision, an increase of 1.3% from January 1, 2020.
• The percentage of state prisoners who were incarcerated for a violent offense increased between 2004 (48%) and 2016 (56%).
• State prisoners in 2016 averaged 10.5 years of education prior to admission, and almost two-thirds (62%) had not completed high school.

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

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

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

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

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

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

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

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

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

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

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

Highlights

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

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

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

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

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

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

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

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

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