Monday, October 11, 2021

"Fatalism and Indifference — The Influence of the Frontier on American Criminal Justice"

The title of this post is the title of this new article authored by Michael Tonry now available via SSRN. Here is its abstract:

American criminal laws and criminal justice systems are harsher, more punitive, more afflicted by racial disparities and injustices, more indifferent to suffering, and less respectful of human dignity than those of other Western countries.  The explanations usually offered — rising crime rates in the 1970s and 1980s, public anger and anxiety, crime control politics, neoliberal economic and social policies — are fundamentally incomplete.  The deeper explanations are four features of American history and culture that shaped values, attitudes, and beliefs and produced a political culture in which suffering is fatalistically accepted and policy makers are largely indifferent to individual injustices.

The four elements are the history of American race relations, the evolution of Protestant fundamentalism, local election of judges and prosecutors, and the continuing influence of political and social values that emerged during three centuries of western expansion.  The last, encapsulated in Frederick Jackson Turner’s “frontier thesis,” is interwoven with the other three.  Together, they explain long-term characteristics of American criminal justice and the extraordinary severity of penal policies and practices since the 1970s.

October 11, 2021 in Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (1)

Sunday, October 10, 2021

Making the case for conservatives to advance criminal justice reforms

Mark Holden and Jason Pye has this new Fox News commentary headlined "Trump made conservatives criminal justice reform leaders. Here's how to keep it that way." Here are excerpts:

Since the signing of the First Step Act, the conservative movement has become a leader in criminal justice reform.  What could be more conservative than fixing the features in our justice system that promote unequal punishment, inhibit work, waste taxpayer money and law enforcement resources?

Voters, Republicans, Democrats, and independents alike, also believe in criminal justice reform and want these issues to be fixed.  A survey conducted in July by Public Opinion Strategies showed that 67 percent of Iowa voters, for example, believe that too many low-level drug offenders are in prisons.  The poll also reflected support for eliminating mandatory minimum prison sentences and having government resources focus more on treating those with addictions instead of prosecuting them....

We have found that harsher drug penalties do not deter use.  Congress imposed five- and ten-year mandatory minimum prison sentences for heroin, but the prevalence of its use is nearly identical today as it was in 1988.  These penalties have not deterred use of heroin nor expanded treatment options for those suffering from addition.  This policy choice fails to solve the root causes of substance abuse and addiction in America...

As conservatives, we must continue to establish ourselves as leaders in criminal justice reform.  It is a proven political winner, judging from President Trump`s expanded GOP coalition, especially black voters, who cited his support for criminal justice reform as a reason for their vote.  It is a proper platform to assert conservative principles.  Our system is badly broken, and we can use our values of public safety, restraining costs, small government, equality and due process to help fix it.

October 10, 2021 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Monday, September 20, 2021

Senator Cotton: "our severe federal drug sentences are ineffectual, so let's not try to reform them"

Bluto-Being-a-Douche-Punching-A-Horse-In-Popeye_408x408.jpgSenator Tom Cotton can usually be relied upon to provide the "tough-and-tougher" perspective on federal criminal justice laws and policies, and he yet again plays the role of cruel Bluto via this new National Review commentary.  The piece is fully headlined "No More Jailbreaks: Republicans should oppose Democratic efforts to reduce or soften sentencing for drug crimes."  The first paragraph of the piece does not exactly say what I have in quotes in the title of this post, but it strikes me as pretty close:

Last year, for the first time in American history, more than 100,000 Americans died as a result of drug overdoses and homicides.  This deadly contagion of crime continues to afflict our communities and even shows signs of worsening.  Yet politicians in Washington plan to reduce federal sentences for criminals and release thousands of drug traffickers and gang members back onto the streets.

The rest of the piece goes on to largely mischaracterizes various current reform bills — e.g., I believe Senator Cotton is referencing the bill prohibiting sentence enhancements based on acquitted conduct when he assails a proposal "prohibit judges from taking into account certain past criminal activity in sentencing" — and does so using all sorts of silly rhetoric about "jailbreak" bills while making a bizarre claim that small reforms to the federal sentencing system might somehow "hurt the American rule of law and render our federal prison system impotent." 

Senator Cotton never tires of beating the drum for more and more and more incarceration in the United States, despite the fact we remain the most incarcerated nation in the world.  Notably, though, as he rails against the FIRST STEP Act, he fails to note that this reform was championed by Prez Trump and many on the far right of his party.  And most of those on the GOP side who pushed for the FIRST STEP Act are also supportive of additional federal reforms. Given that Senator Cotton these days seems to be one of the very few, even on the GOP side of the aisle, to be calling for "tough-and-tougher" lock-them-all-up approaches to complicated problems, perhaps we ought all just marvel at what it looks like as he spits into the criminal justice reform wind.

September 20, 2021 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Tuesday, September 07, 2021

After being a modern criminal justice reform success story, is Texas back to its "tough and tougher" past?

The question in the title of this post is prompted by this notable new Texas Monthly article fully  headlined "Who Killed Criminal Justice Reform?: The state was once a model of how to safely move away from mass incarceration.  Now the old politics of 'law and order' are back."  The lengthy piece is worth reading in full, in part because it details some political dynamics that extend far past the Lone Star State. Here are excerpts:

Rick Perry ... often boasted about his role in downsizing the Texas prison system.  When he became governor in 2000, the Texas prison population had quintupled over the previous twenty years — swelled by thousands of small-time drug offenders and others convicted of nonviolent crimes, who cost the state hundreds of millions of dollars a year to incarcerate with little clear benefit to public safety. Faced with this profligate use of tax dollars, Perry explained, he had had no choice but to speak truth to power.  “Let my people go,” the governor said, like Moses to Pharaoh.  Armed with this conviction, he signed dozens of bills that helped free the wrongfully convicted and kept nonviolent offenders from going to jail. 

The incarcerated population declined enough that Texas was able to close three prisons. The state’s reforms became a model for others, and justice rolled down like water.  As lawmakers were quick to point out, however, Perry was hardly parting the seas.  Mostly, he managed not to stand in the way of bills passed by the Legislature.  But even that was significant.  While the rest of the country was still carrying on in the tradition of the tough-on-crime nineties, Texas stood apart.

How times have changed.  If Perry’s successor, Governor Greg Abbott, launches his own presidential run, he will do so while proudly proclaiming that, like Pharoah to Moses, he held his ground and said, “Not so fast.” Abbott has joined a counterrevolution, allowing his antipathy toward Democratic officials to outweigh the effectiveness of policies embraced by much of his party.  Take, for instance, his treatment of Dallas judge John Creuzot, who years earlier convinced Perry to support drug courts, which offer treatment rather than incarceration for low-level offenders. In 2018 Creuzot was elected Dallas County district attorney and soon announced that his office would no longer prosecute small-time drug offenses and other petty crimes that often involve the poor, mentally ill, and unhoused.  He was quickly pilloried by Abbott and Attorney General Ken Paxton, who accused him of “abandon[ing] the rule of law.”

These days, the Legislature isn’t doing much reforming either.  During recent sessions, proposed improvements to the criminal justice system have been blocked by powerful police lobbies and their supporters in state government.  One of the most anticipated pieces of legislation this year would have barred police from arresting Texans for most Class C misdemeanors — including traffic violations, such as the one that prompted the confrontation that led to Sandra Bland being placed in the Waller County jail cell where she reportedly killed herself.  A somewhat watered-down version of the bill passed the House during the regular session with the support of the Republican Speaker — the culmination of years of effort from disparate groups. But it never even received a hearing in the Senate, where Lieutenant Governor Dan Patrick has revived the law-and-order crusade of decades past.  Its demise marked the third time in three sessions that a version of the bill has failed to pass.

Reformers have watched with a mixture of disbelief and dismay as the bipartisan consensus has crumbled. “This year it became evident that police reform of even the smallest sort cannot occur in Texas while Greg Abbott and Dan Patrick remain in office,” Austin writer Scott Henson recently noted on his criminal justice blog, Grits for Breakfast.

And it’s not just on police reform that progress has stalled. During the special sessions he called this summer, Abbott pushed legislation intended to reverse some of the gains made in fixing Texas’s archaic bail system.  For years, Texas cities, particularly Houston, have taken strides to reduce their reliance on cash bail, which ensures that many poor and mentally ill defendants arrested for comparatively minor crimes stay stuck in county jails for months. Bail reform is supported not just by criminal justice activists and Democratic local elected officials; Nathan Hecht, the Republican chief justice of the Supreme Court of Texas, has called for a complete overhaul of the way courts handle pretrial detention. But the bail bill pushed by state leaders aimed to strengthen the role cash bail plays.

Abbott and his allies are responding to a real issue, as well as a political opportunity.  Rising rates of violent crime, especially in large cities, have prompted politicians of all stripes to offer solutions.  For many, and particularly for conservatives, a well-worn playbook — more police, less tolerance toward even petty crimes — is an obvious answer.  In addition, the racialized backlash to the Black Lives Matter protests of last year has made some Republicans skittish about criminal justice reform.  Calls by some progressives to “defund” the police at a time when crime is rising have handed Republicans a winning campaign issue....

Many conservatives are wobbling because of larger political dynamics.  Police reform went from a relatively sleepy matter to a supercharged issue intertwined with the culture wars.  Republicans in Austin are peeved with the state’s big-city mayors, district attorneys, and county officials.  These figures, mostly Democrats, now serve as the face of the reform movement, loudly declining to prosecute low-level offenses and attempting to hold police responsible for misconduct.  The conservative news outlets and Facebook feeds that have amplified an endless stream of footage of protests and riots have made many viewers feel as if anarchy were descending on the country — and that the thin blue line needed to be strengthened, not “defunded.”

The rising murder rates in most Texas cities during the pandemic haven’t helped the movement either.  Violent crimes such as homicide and robbery are still less common than during much of the seventies, eighties, and nineties.  But that doesn’t make much of a difference in public perception.

There’s another significant factor contributing to the backsliding.  “This is a Trump thing,” Henson says.  During his time in office, the former president — who, on the campaign trail, exploited fears of crime, especially when suspects were Black or Latino — promised to punish wrongdoers and maintain order in ways that Republicans had recently deemphasized.  Henson says Trump’s approach rubbed off.  Patrick and Abbott have started talking tougher.  Speaker Dade Phelan, meanwhile, often talks like a reformer of the Perry era.

Those brief years may have been an aberration, rather than a fundamental shift in the state’s approach to criminal justice, Henson says.  The post–Civil War era saw the introduction of a regime of forced labor designed to control freed slaves and others who were regarded as undesirable.  During the sixties the Legislature responded to the civil rights movement by effectively trying to criminalize nonviolent protest.  In the nineties, Ann Richards bragged that she had added 75,000 prison beds and “cut parole by two thirds.”  And it’s easy to overstate how much progress Texas has made: Yes, the number of Texans who are incarcerated as a percentage of the state’s population continues to decrease.  But according to the most recent figures, our incarceration rate ranks higher than that of all but five other U.S. states.

Still, not everyone is as pessimistic as Henson. Marc Levin, the former Right on Crime policy director, thinks the sour national political climate could shift.  “We’re kind of seeing the crime rate level off” in major cities, he says.  (Though the murder rate has continued to climb, statisticians say the growth in the rate has slowed in the first six months of this year.)  It’s possible, he says, that last year’s crime spike was caused in large part by the disruptions of the pandemic and that things will soon settle down.

Though Trump’s rhetoric was often harsh, he signed important reforms into law, notably the First Step Act, which reduced some draconian federal prison sentences and sought to improve conditions in federal lockups.  Conservatives are now more willing to make substantial investments in the mental health-care system (such as updating the state’s aging psychiatric hospitals) and other alternatives to incarceration, Levin says.  He believes that the elements of the criminal justice debate that seem to trigger right-leaning voters — “antifa” and “defunding” the police — may lose their power to terrify.

September 7, 2021 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (1)

Monday, September 06, 2021

"If Democrats don't think Robert Kennedy’s assassin deserves parole, do they really support criminal justice reform?"

The question in the title of this post is the subtitle of this new MSNBC commentary authored by Chris Geidner.  The main headline is "California may parole Robert Kennedy's assassin. Liberals aren't happy."  Here are excerpts:

Sirhan Sirhan, who was convicted of murdering Robert F. Kennedy 53 years ago, has been recommended for release by the California Board of Parole Hearings.  But, in a misguided effort that serves to reinforce the harsh practices that led to our incarceration explosion, some Democrats are fighting against the 77-year-old’s release. In doing so, they’re helping fuel the tough-on-crime rhetoric most often voiced these days by Republicans.

Sirhan was originally sentenced to death for murdering the presidential candidate and former attorney general as he campaigned in Los Angeles, but in 1972 his sentence was commuted to life in prison with the possibility of parole.

Sirhan has been denied parole 15 times — most recently in 2016. But on Aug. 27, the California parole board recommended his release.  After that recommendation, we quickly were reminded that the assassination from 53 years ago remains a present and painful memory to many Americans. It also became clear that some Democrats and progressives are willing to make exceptions to the criminal justice reforms they’ve claimed to support.

“I can’t pretend to know what’s going on in people’s minds,” Sirhan’s lawyer, Angela Berry, told me after the parole board’s recommendation.  “I think that wound is just so strong for people. They just can’t see that the board followed the law.”

That “they” includes opportunistic, “tough on crime” conservatives — but also liberal and progressive Democrats. “The news of Sirhan’s potential release hit me hard this weekend,” filmmaker Michael Moore wrote. “No, this assassin must not be set free.”

Few have voiced their opposition as loudly as Harvard Law School Professor Emeritus Laurence Tribe.  A longtime prominent liberal voice, Tribe has been on a nonstop campaign to stop Sirhan’s parole. Before the parole panel even met — with no apparent investigation, let alone evidence — Tribe, referring to Sirhan, wrote on Twitter, “Even at 77, he could be a threat.”...

Sirhan has been eligible for parole for several decades.  “The law presumes release unless the person poses a current unreasonable risk to the public,” Berry said.  “There wasn’t one iota of evidence to suggest this man is still dangerous.” The documents Sirhan submitted to the parole board included evidence from the state’s own experts that Sirhan “represents a Low risk for violence” and noted that his current age qualifies him for “elderly prisoner consideration” and the age at which he committed his crime means he should be treated as a “youthful offender.”...

Our system has become extremely carceral, but in 1972, when Sirhan was sentenced to life with the possibility of parole, the idea that someone would serve more than 50 years in prison was way outside the norm.  As his submission to the parole board noted, “The proscribed punishment for first degree murder in 1968 was life with parole eligibility after 7 years.”  Throughout the country, we've not only increased sentences exponentially since then, but we've also decreased the use and availability of parole and clemency and deemed more activities criminal.

Democratic opposition to letting California’s parole system work as intended is a problem for a party that claims to support criminal justice reform.  Reformers in both parties have set goals to end over-sentencing, expand the use of clemency and parole and end overcriminalization.  But when Tribe, and even the Kennedys, speak in opposition to Sirhan’s parole, opponents of reform hear their “tough on crime” refrains being justified....

After initially arguing against Sirhan’s release, Moore wrote that his sister, a public defender, persuaded him to think more deeply about his position.  “If the Governor decides to let him go, I will try to find my peace with that,” Moore wrote.  “While offering my love to Kennedy’s family. And recommitting myself to the efforts of bringing about a more just system.”

A more just system means so many things, but, specifically here, it means letting parole work, and it means understanding that turning prisons into nursing homes for people who were practically children when they committed crimes is not only a financial mistake, it misunderstands our knowledge that people change and that older people overwhelmingly do not commit crimes.

Prior related posts:

September 6, 2021 in Celebrity sentencings, Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Tuesday, August 31, 2021

Notable response to notable attack on conservatives role in modern criminal justice reform

Lars Trautman and Brett Tolman have this interesting new Washington Examiner commentary headlined, "No, criminal justice reform isn’t causing the current crime wave." Here are excerpts (with links from the original):

Conservative criminal justice reformers have faced occasional skepticism over our tried-and-true criminal justice solutions, but never something quite so outlandish as a recent suggestion, by an avowed conservative, no less, that conservative reformers somehow bear blame for rising violent crime in liberal bastions such as New York City and Portland.

Sean Kennedy, in his recent Washington Examiner article , attacks our organization, Right on Crime, using just such an argument.  Kennedy actually acknowledges our record of helping Texas and other conservative states simultaneously reduce their crime rates, prison populations, and criminal justice spending.  But he then claims, without evidence and employing a classic logical fallacy , that this activity then caused subsequent increases in crime in Texas.  Note that he makes this claim even though crime spiked at exactly the same time he refers to in many states where none of our reforms were enacted....

But those of us who have served in law enforcement, as prosecutors or in corrections, have learned that if you invest properly in police, evidence-based programming, and prison alternatives, you can consequently achieve reductions in crime, recidivism, and ultimately prison construction costs.  Further, the evidence is clear that it is the certainty and not the severity of punishment that deters potential criminals.  A few more years on a potential sentence doesn’t change many minds about crime — it’s the long odds of getting away with it entirely.

Too often, people do get away with murder and a host of other crimes.  Homicide clearance rates nationally hover around 50%. Whether a killer meets justice is a coin flip . If you’re worried about public safety, it’s more productive to spend your time improving clearance rates, not bemoaning the elimination of ineffective mandatory minimums for nonviolent offenses.

This is why we are so adamant about reducing our overreliance on prison beds and other costly, unproductive interventions so that we can redirect this money and focus toward law enforcement and other strategies that actively improve our crime prevention and investigative capabilities.  Practically speaking, this means more funding for police departments, especially homicide and other specialized units focusing on serious and violent crime — a commonsense solution backed by research.  It also means helping shift to others, such as social workers and truant officers, at least a few of the dozen different jobs we currently expect law enforcement to complete, so that police can concentrate on actual police work.

August 31, 2021 in Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (2)

Wednesday, July 28, 2021

Is the politics of crime and punishment now different than in our recent history?

The question in the title of this post is promoted by this recent Politico piece by Joshua Zeitz headlined "'Law and Order' has Worked for the GOP Before. This Crime Boom Might be Different." I recommend the piece in full, and here are a few excerpts:

In the 1970s and 1980s, Republican candidates successfully used violent crime as an issue to attract white voters. Fused with concerns over the economy, busing and neighborhood integration, “law-and-order” politics dislodged millions of working- and middle-class white voters from their former home in the Democratic Party. No politician did it better than Richard Nixon, whose White House staff aimed, in their own words, “to orient the Silent Majority toward issues other than foreign policy (e.g.: inflation, crime, law and order, etc.) and then to increase support for the President’s foreign and domestic proposals.”

But 2021 is not 1971. Even allowing for the public’s very real perception of violent crime as a top national priority, the nation’s political demography has changed dramatically over the last half century. Then, many working-class and middle-class voters lived in cities or inner-ring suburbs where crime was not a hypothetical concern; it was an everyday reality. By contrast, today most voters the GOP hopes to claw back inhabit increasingly diverse suburban areas where crime is not an everyday reality. Polls show that while most voters believe crime is on the rise, they don’t believe it threatens their neighborhoods.

It’s true that crime might function as a mechanism to motivate the conservative base. But to move voters from the Democratic to the Republican column, it will need to capture the independent voters who swung from Trump to Biden in the last election. And here the historical analogy breaks down....

[V]ast demographic changes over the past 50 years have re-sorted the American population.  Today’s swing voters are affluent suburbanites, not working-class residents of transitional urban neighborhoods.  The places where violent crime is on the rise — namely, cities — are deep blue and unlikely to change.  The places where violent crime is not on the rise — namely, suburbs — are the new political battleground....

Of course, none of this is to say that some of the urban voters affected by today’s rise in crime might not be up for grabs. Studies show that low-income non-white families are far more exposed to violent crime and more likely to perceive it as an immediate threat.  Republicans have made inroads with Latino voters, and in recent months, it has become clear that last year’s racial justice awakening obscured a more complicated reality about the Black electorate, which is diverse — not a monolith — but generally concerned about crime and welcoming of a greater police presence on the streets if and when that presence is protective of their safety....

The 2022 election cycle is still in the distant future, and in politics, things change quickly.  Judging by history and by polling, however, crime may not provide the winning message that the GOP is looking for.  Yesterday’s swing voters are not today’s swing voters, and in 2021, “law and order” doesn’t mean the same thing it did in 1971.

This article is focused on demographics to rightly observe that the politics of crime and punishment has evolved over the last half-century.  But I also think there is a lot more to the story of the changing political landscape, ranging from bipartisan disaffinity for (some parts of) the war on drugs and much greater public awareness — especially among younger Americans and libertarian-leaning conservatives — of the racial and economic impacts of mass incarceration and collateral consequences.  What all this means for elections in the 2020s remains to be seen, but nobody should forget that Donald Trump ran in 2016 on a "law and order" message and then signed a major federal criminal justice reform bill into law just two years later.  Put simply, in this century, I think both the politics and the practice of crime and punishment are quite nuanced and often quite unpredictable.

July 28, 2021 in Campaign 2016 and sentencing issues, Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Tuesday, July 20, 2021

Helpful review of some modern US capital punishment realities

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

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

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

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

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

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

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

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

Sunday, June 06, 2021

"Election Contestation and Progressive Prosecutors"

The title of this post is the title of this new paper now on SSRN authored by Ronald Wright, Jeff Yates and Carissa Byrne Hessick. Here its abstract:

A group of change-oriented chief prosecutors use the label “progressive prosecutor” to describe their distinctive approach to the prosecutor’s work.  But it is not yet clear how deep those proposed changes go.  Did media accounts focus on vivid but exceptional election campaigns, or did the last decade deliver a widespread change in U.S. prosecution leadership? We explore this question by collecting the results in prosecutor elections in 200 high-population districts in the United States, between 2012 and 2020.  Prosecutor elections have traditionally been sleepy affairs, where incumbents most often ran unopposed and won re-election more often than incumbents in other public offices.  Setting aside the difficult issues of measuring how “progressive” each candidate might be, we simply ask whether prosecutor election campaigns are becoming more contested, now that progressive prosecutors offer an alternative vision of the job.

Based on our data, elections in these high-population districts did in fact become more contested over the last decade.  The likelihood that an incumbent would run unopposed fell by roughly eight percent for each passing year.  This steady disappearance of uncontested elections applied most strongly to non-white incumbents.  The incumbent win rate also fell by significant amounts during this period.  Today, prosecutor elections involve more candidates presenting more varied and viable choices.  Prosecutor elections reveal a growing popular interest in and control over local criminal justice policy.

June 6, 2021 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Thursday, June 03, 2021

Prosecutors and Politics Project releases amazing "Prosecutor Lobbying in the States, 2015-2018"

The Prosecutors and Politics Project, a research initiative at the University of North Carolina School of Law, has just published this remarkable new report titled "Prosecutor Lobbying in the States, 2015-2018." Here are brief excerpts from the report's extended executive summary (which everyone should read in full):

American prosecutors are active lobbyists who routinely support making the criminal law harsher.  During the years 2015 to 2018, state and local prosecutors were involved in more than 25% of all criminal-justice-related bills introduced in the 50 state legislatures.  Prosecutors were nearly twice as likely to lobby in favor of a law that created a new crime or otherwise increased the scope of criminal law than a law that would create a defense, decriminalize conduct, or otherwise narrow the scope of criminal law.  And when state prosecutors lobbied in favor of a bill, it was more than twice as likely to pass than an average bill.

Prosecutors appeared to have more success when they lobbied in favor of a bill than when they opposed a bill.  Although bills with prosecutor support were twice as likely to pass, prosecutor opposition to a bill did not reduce its likelihood of passing.

Notably, prosecutors were more successful when they supported criminal justice reform bills than when they supported traditional law-and-order bills.  Approximately 60% of bills that narrowed the scope of criminal law and 55% of bills that decreased punishment passed when supported by prosecutors.  In contrast, when prosecutors supported bills that increased the scope of criminal law, only 40% of those bills passed; and bills that increased punishments did not fare much better, passing only 42% of the time.

More than 22,000 criminal law and criminal justice bills were introduced in the 50 state legislatures during the four-year period from January 1, 2015 to December 31, 2018. The number of bills introduced varied wildly by state.  The most bills (1536) were introduced in New York; the fewest bills (80) were introduced in Alaska.  The median state introduced 296 bills....

Overall, state lawmakers were more likely to introduce bills that made the criminal justice system harsher than bills that made the law more lenient.  More 40% of the bills introduced either increased the scope of criminal law or increased the sentencing range.  In contrast, only 11% of bills narrowed the scope of criminal law or decreased punishment.  Many criminal justice bills dealt with procedural issues. 35% of bills proposed changes in procedural limits or altered the rights, responsibilities, or liabilities of criminal justice actors.  And less than 5% of bills dealt with funding issues.....

Some prosecutor lobbying comes from specific prosecutor offices. An individual elected prosecutor or an employee in her office may choose to testify in favor or against a bill. The same is true for state attorneys general — some state AGs were active lobbyists.

But in many states the prosecutor lobbying was more coordinated. Most states have one or more organizations — often called associations or councils — that exist in part to lobby the state legislature.  Some of these organizations are private non-profit corporations; others were created by statute.  The organizations also serve other, non-lobbying purposes, such as providing training materials to local prosecutor offices or appointing members to serve on statewide commissions.

The existence of these state organizations did not necessarily supplant the lobbying of individual prosecutors or the state AG.  And, from time to time, the various prosecutors or their organizations took inconsistent positions on bills.  When that occurred, we treated the bill as having both been supported and opposed by prosecutors.

June 3, 2021 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Wednesday, May 19, 2021

OG progressive prosecutor Larry Krasner wins big in Philadelphia DA primary

This week's primary election for Philadelphia District Attorney was reasonably seen as a kind of referendum on the progressive prosecutor movement.  (See this AP piece, headlined "Prosecutor’s reelection pits reform against rising gun crime.")  Larry Krasner is seeking a second term after pushing a wide array of criminal justice reforms during his first three years in office; former assistant DA Carlos Vega had the backing of the city's police as he sought to dislodge Krasner during the Democratic primary. 

Some polling seemed to suggest this could be a close race, but tonight it appears that DA Krasner has secured the Democratic nomination by a wide margin (and thus all-but-certain re-election in a deep blue city).  As of this writing (around midnight), this election website reports, with over 80% of the divisions reports, Krasner has roughly 65% of the vote to Vega's 35%.

UPDATE: This piece from The Intercept, headlined "Philadelphia District Attorney Larry Krasner Trounces Police-Backed Primary Challenger," provides lots of context, and I found these passages notable as DA Krasner considers his plans for the coming years:

Since his election in 2017, Krasner has become a symbol of the burgeoning movement to elect reform-minded prosecutors. “Krasner has been kind of a model,” said Scott Roberts, senior director of criminal justice campaigns at Color of Change, a racial justice group that supported several such prosecutors’ bids and endorsed Krasner.  “I can’t tell you how many potential DA candidates I have talked to who lead with, ‘I’m going to be the Larry Krasner of fill-in-the-blank city.’”

But Krasner’s election and the reforms he enacted as soon as he took office also sparked a fierce backlash — making him a national target for law enforcement groups and prominent Republicans.  Former President Donald Trump, for example, claimed in 2019 that prosecutors in Philadelphia and Chicago “have decided not prosecute many criminals” who pose a threat to public safety.

Krasner’s reelection bid came as an increase in gun violence in many U.S. cities — including Philadelphia — and calls to reduce the scope of policing prompted a return to tough-on-crime rhetoric and rebuke of reformist efforts.  But other reform-oriented DAs in cities with considerable gun violence — like Chicago’s Kim Foxx and St. Louis’s Kim Gardner — recently won reelection bids despite sometimes vicious attacks on them.

According to a recent poll by Data for Progress, many of the reforms Krasner enacted remain popular with voters in Pennsylvania. Sixty-four percent of people surveyed expressed support for limitations to the use of cash bail, 60 percent were in favor of the decriminalization of drug possession, 75 percent favored sentence reductions for good behavior, and 68 percent supported terminating probation when supervision is no longer needed.  Just this week, a Philadelphia City Council committee advanced a measure outlining procedures for a new police oversight board that will go to a full council vote later this week — the result of years of organizing by local activists who have pushed to create a body with power and funding to hold police accountable for misconduct, with renewed energy after police met protests last summer with brute force.

“With all the noise that goes on, the attacks, what have you, we know that the agenda is still very popular,” said Roberts. “People want to see these prosecutors’ offices being focused on bringing down incarceration rates, and holding police accountable.  And they’re actually looking for other solutions for violence, they’re not willing to buy into the narrative that they hear from police unions and conservative politicians.”

May 19, 2021 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Friday, April 30, 2021

Prez Biden gets timely reminder that criminal justice reform presents unique bipartisan opportunity

I complained in this post that Prez Biden did not have all that much to say about criminal justice issues in his lengthy speech to Congress this week. But I now see from a number of news reports that criminal justice reform got some brief, but especially notable, bipartisan attention after the speech.  This Washington Post piece, headlined "GOP lawmaker who voted to overturn Biden’s election win wants to help him on criminal justice reform," provides these details:

Moments after President Biden concluded his first speech to a joint session of Congress on Wednesday, he was greeted by lawmakers aiming to get in some coveted face time with the president.  Among them was Rep. Troy E. Nehls (R-Tex.), who helped barricade the entrance of the House Chamber during the insurrection Jan. 6 but still voted to overturn the election that Biden won.

But in a brief exchange Wednesday night, Nehls, wearing a Texas-flag mask, introduced himself to Biden as “a sheriff from Texas” and offered his experience policing Fort Bend County to help with the president’s efforts on criminal justice reform.  “I want to help with the criminal justice reform. I want to be a part of it. It’s needed,” he said to the president. “I don’t know how to reach out to you, but I have the experience.”

In response, Biden assured him they’d be in touch, saying, “I’ll reach out to you.”... A White House official told The Washington Post on Thursday that Biden “appreciated Rep. Nehls’s offer and their conversation.”...

During last year’s GOP primary for an open seat in Congress, Nehls painted himself as a fierce Trump advocate.  Texas Monthly reported that he stated on his campaign website how he would “stand with President Trump to defeat the socialist Democrats, build the wall, drain the swamp, and deliver on pro-economy and pro-America policies.”  After he secured the nomination, Nehls pivoted to a more moderate approach for the general election, focusing on health care and criminal justice reform.  He also removed the “Standing with Trump” section from his website as Trump’s approval among Republicans was waning, according to the Houston Chronicle.  He went on to defeat his Democratic opponent, Sri Preston Kulkarni, by seven percentage points in November....

On Wednesday night, Nehls tweeted during the speech about the president’s handling of the southern border and slammed Democrats for reportedly handing out masks in the Chamber that were made in China. But in their exchange on criminal justice reform, Nehls took on a much different tone than the one he used on Twitter.

“I don’t want to hurt your reputation,” the president said to Nehls of his offer, according to video of the moment. Before Biden went to talk to another lawmaker, Nehls made his final plea: “I can do a whole lot of good in that conversation.”

This Texas Tribune article, headlined "Freshman GOP Texas congressman made a personal pitch to Joe Biden: Let me help with criminal justice reform," provides some more details concerning the type of reforms that Rep Nehls seems eager to champion:

Biden administration staff reached out to Nehls' office on Thursday morning, according to Nehls spokesman Daniel Gribble.  Gribble added that Nehls is "optimistic about common sense reforms they can accomplish" and the congressman's focus is "recidivism reduction through inmate training programs."

"As Sheriff, Rep Nehls implemented HVAC and welding programs for non-violent inmates at the county jail," Gribble said.  "He had wild success reducing the 2 year re-arrest rate with participating inmates.  He’d like to see similar programs available in County jails across the country and is working on legislation that will make that possible."

April 30, 2021 in Criminal justice in the Biden Administration, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (11)

Thursday, April 15, 2021

Can capital punishment be another part of a bipartisan criminal justice reform story?

The question in the title of this post is prompted by this lengthy new Marshall Project piece fully titled "Can The Death Penalty Be Fixed? These Republicans Think So: A growing number of conservative lawmakers want to overhaul capital punishment, or end it."  Here are excerpts:

As Oklahoma officials seek to resume putting prisoners to death later this year, [state Rep. Kevin] McDugle has pursued bills in the state legislature to help those on death row prove their innocence ... in a deep-red state at a time when Republicans across the country are increasingly split on the future of capital punishment.  Support for the death penalty used to be popular in both parties, but over the last three decades, Democrats have turned away from the punishment, leaving Republican legislators, governors, prosecutors and judges to fight for its continued use.  At the same time, a small conservative movement — including groups like Conservatives Concerned About the Death Penalty — has been openly questioning capital punishment. It’s now clear their efforts are paying off.

Earlier this year, Virginia became the first Southern state to repeal the death penalty after three Republicans voted with the state legislature’s Democratic majority.  A Marshall Project review found that in roughly half the states with an active death penalty system, Republican lawmakers have recently sponsored or written bills to ban or constrain the punishment, or to help potentially innocent prisoners avoid it.

Although many of these bills are unlikely to pass, their sheer volume suggests a significant shift in conservative views.  Some of these Republican legislators see their bills as incremental steps toward ending the punishment. But others, like McDugle, don’t want to end the death penalty — they just want to fix it. “I want to make darn sure that if we as Oklahoma are putting someone to death, they deserve to be there,” McDugle said. “I know there is human error all the way through.”

Conservatives have been slowly turning away from the death penalty for years, as high-profile innocence cases have helped frame capital punishment as a problem of out-of-control big government.  In 2000, after a series of exonerations of people who had been sentenced to death, the Republican governor of Illinois, George Ryan, declared a moratorium on executions.  At the time, Texas Gov. George W. Bush was running for president, and the national press questioned whether an innocent person had faced execution under his watch; soon after, his fellow Republicans in the state legislature voted to make DNA testing more available for prisoners.  From 2014 to 2019, Republican support for the death penalty, as opposed to life sentences, dropped from 68% to 58%, according to Gallup Polls. Republican legislators in Nebraska voted to repeal the punishment in 2015, although the state’s residents then voted to bring the punishment back.

Some lawmakers have been motivated by anti-abortion arguments about the sanctity of human life and stories of Christian redemption on death row.  Others talk about the cost to taxpayers. South Dakota state Sen. Arthur Rusch previously served as a judge in a capital case.  “My case cost at least $1 million if not more,” he said, noting that the court paid for counseling for some jurors who suffered from post-traumatic stress after the lengthy trial. He was elected to the senate in 2015, and has filed numerous bills to abolish or restrict the punishment; none have succeeded, he said, but each time he brings along a few more peers.

“Changing your mind on an emotional subject like this can be difficult,” said Hannah Cox, who writes columns for Newsmax, a conservative web outlet, and serves as national manager of Conservatives Concerned About the Death Penalty. She’s found that efforts to fix the system can serve as “baby steps,” as she tries to show her fellow conservatives that the system can’t be saved. “If you fix one of 13 problems with the death penalty, there are still another 12.”...

Many conservatives focus on the moral calculation of who deserves the ultimate punishment.  Ohio recently passed a bill, sponsored by a Republican legislator, to ban the execution of anyone with a serious mental illness. Republicans are pushing similar bills in Florida, Kentucky and Missouri.  In Texas, state Rep. Jeff Leach has filed a bill that would ban the death penalty for people who were technically “accomplices” to murders but played a minor role, including getaway drivers.  Much like the Oklahomans, he was motivated by a single case — that of Jeff Wood, who was sentenced to die after his friend killed a store clerk while Wood waited outside in the car, after what they thought would be an easy robbery.

April 15, 2021 in Death Penalty Reforms, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Thursday, April 08, 2021

Spotlighting progressive prosecutor challenges and politics circa spring 2021

Politico has this extended and timely new article headlined "Left-wing prosecutors hit fierce resistance: An uptick in murders across the country is testing their resolve — and their electability."  Here are excerpts:

Larry Krasner’s election in 2017 was a triumph for progressives nationwide: The man who had sued cops 75 times, represented Black Lives Matter, promised to end cash bail — and was widely seen as the most liberal district attorney candidate in the country — won.

Four years later, Philadelphia’s top prosecutor — and one of the leading figures of the country’s criminal justice reform movement — is under siege.  Homicides are skyrocketing in the city, and local officials are grumbling. A former assistant district attorney backed by the local police union is challenging Krasner in the May primary.  And in recent weeks, the Philadelphia Democratic Party broke with years of tradition and declined to endorse the incumbent.

The primary battle is a test of whether the left can maintain its successful campaign electing progressive district attorneys amid an uptick in murders in cities around the country. If Krasner wins, it could signal the arrival of a new era, one in which the public doesn’t recoil from liberal criminal justice policy — even when crime statistics go up.  If he fails, it would be a jolt for politically beleaguered police unions, and a sudden halt to what has been a steady shift leftward in urban DA races.

“His reelection means everything,” said Shaun King, a civil rights advocate and former surrogate for Bernie Sanders’ presidential campaign.  “We always knew that Larry, a lifelong civil rights attorney, would come in and change the system from the inside out, and that doing so would make him a major target.”

Krasner isn’t the only big-city progressive prosecutor meeting fierce resistance.  In California, both San Francisco District Attorney Chesa Boudin and Los Angeles District Attorney George Gascón are facing recall efforts.  Opponents of the left-wing DAs have accused them of letting criminals loose on the streets and turning a blind eye to victims — all criticisms lobbed at Krasner, too.

Krasner has framed his reelection campaign as a choice between the future and the past, “a past that echoes with names like [Frank] Rizzo,” Philly’s former tough-on-crime, racially polarizing mayor, as he put it at a recent candidates forum.  He says that he delivered on his campaign promises by lowering the jail population, exonerating the innocent and reducing the amount of time people are on probation and parole.

He has taken a tack against his Democratic challenger — ex-homicide prosecutor Carlos Vega, who was among the group of employees he fired when he became DA — that once might have been unthinkable.  Krasner is using the local police union as a foil, and reminding voters that Vega is endorsed by the local chapter of the Fraternal Order of Police, whose national union endorsed former President Donald Trump.

As for the spike in homicides — they are up 29 percent compared with this time in 2020, which was the most violent year in three decades — Krasner blames larger societal forces.  “What has happened, and essentially every criminologist agrees on this, is that the pandemic, closing of society and closing of so many different aspects of what protects and surrounds especially young men have disappeared,” Krasner said in an interview.  “So in every single city, you have the elimination of high schoolers being in classrooms at least for periods of time, summer camp, summer job programs, open swimming pools, open recreation centers, organized sports in school, organized sports out of school and after-school programs."...

Murders rose last year in cities around the country, both big and small, suggesting that local explanations alone cannot explain the phenomenon.  Asked whether it’s fair to blame Krasner amid a national trend, Vega said that “the issue is what is happening to our community, our city — he cannot and I cannot address all the ills happening across the nation.”

But Krasner’s approach of declining to accept any blame whatsoever has rubbed some voters and party officials the wrong way.  The politically influential Democratic ward leaders who declined to endorse Krasner were frustrated that “there’s an epidemic of gun violence here, everybody’s been touched by this, and Krasner takes no responsibility,” said a person familiar with their meeting with the district attorney....

Krasner has expressed confidence in his prospects in the May 18 primary, pointing to the reelection of other liberal prosecutors around the country such as Cook County State's Attorney Kim Foxx and Baltimore State's Attorney Marilyn Mosby.  He doesn’t fear a 1990s revival of the tough-on-crime ethos due to the recent gun violence.  “I do not believe that people who have had the wisdom to elect progressive prosecutors all over the country, and increasingly, all of a sudden are going to get the stupids,” said Krasner, “and decide that a phenomenon that is affecting essentially every major city — and is affecting traditional prosecutors’ cities and Republican cities just as much as progressive prosecutors’ cities and Democratic cities — I do not believe all of a sudden they're going to get that stupid and go for this kind of dumb scapegoating.”

April 8, 2021 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Sunday, March 28, 2021

Notable back-and-forth on how "conservatives" ought to respond to this moment in crime and punishment

I have put "conservatives" in quotes in this title of this post because I have never really found traditional political labels that helpful in explaining people and positions, and I sometimes find such labels can prove particularly problematic in the criminal justice arena.  In fact, it is because of these realities that I found interesting a pair of new pieces from right-leaning sources.  First, writing at City Journal, Josh Hammer has this piece titled "Recover the Moral Imperative of Law and Order: Conservatives should lead the way in moving the pendulum back toward the rule of law."  Here are excerpts:

[T]he time is ripe for a more aggressive, sustained campaign against the de-carceral, de-civilizational agenda pushed by many libertarians and progressives alike. Citizens of all political stripes, especially conservatives, must recover and publicly advocate anew the time-tested and common-sense notion that a free and just society is impossible without a robust commitment to a strictly enforced rule of law....

[A] pro-rule-of-law national campaign is now necessary.  Activists can start at the local level, getting involved in district attorney races to oppose anti-enforcement, de-carceral candidates.  Voters should punish statewide attorneys general and federal legislators alike for throwing law enforcement under the bus and focusing their ire on the “qualified immunity” legal doctrine over substantive commitments to support law enforcement.  Citizens should make themselves heard at city council meetings in support of more police officers on the beat, a proven and effective crime deterrent.  Conservative commentators must grow comfortable calling out the excesses of light-on-crime libertarianism that come from their own side of the aisle.  Republican politicians, cognizant of both the disturbing on-the-ground crime reality and the political truth that the small-government rhetorical emphasis of the Tea Party era is over, must recalibrate and shift back toward a traditional pro-law-and-order political platform.  Such a platform would be both proper and popular.

We have reached the point where the pendulum has swung too far back toward decarceration, under-prosecution, and light-on-crime policies. The moral primacy of order and public safety must take precedence over fashionable peddling of pro-criminal “bail reform” and “criminal-justice reform” initiatives. We have been here before; we know what we have to do. Now it’s time to execute the game plan.

But over at the Cato Institute blog, Clark Neily and Shon Hopwood have this response titled "To a Man With a Hammer, Every Criminal Justice Problem Looks Like a Nail." Here is the closing part of their take which questions whether Hammer is really advocating for "conservative" reforms:

[P]uzzling — particularly from a self‐​styled “common‐​good” originalist — is Hammer’s embrace of qualified immunity, a judicially confected legal doctrine specifically designed to ensure that police and other “state actors” who have been plausibly alleged to have violated people’s rights don’t have to answer for it in court.  More thoughtful conservatives, including Justices Antonin Scalia and Clarence Thomas, Judge Don Willett, and University of Chicago Law Professor Will Baude, have challenged the legitimacy of qualified immunity on originalist grounds, while scholars of all stripes have shown what an unmitigated disaster it has been for justice, accountability, and the “moral primacy of order and public safety” that Hammer himself extols in his piece.

Another surprise coming from a conservative is Hammer’s apparent disdain for democracy, at least when it involves electoral majorities choosing reform‐​minded district attorneys who entertain the heresy that it might actually be possible — as such notoriously crime‐​friendly states as Texas, Georgia and Mississippi discovered — to reduce crime rates while locking up fewer people.

The leave‐​no‐​prison‐​unfilled approach Hammer touts goes well beyond what even Jeff Sessions and William Barr implemented during their respective tenures as Attorney General. There are over 5,000 federal crimes, yet neither Sessions nor Barr tried to charge everyone who violated those statutes.  They couldn’t.  The federal criminal justice system would be overwhelmed if they did, which is why they used prosecutorial discretion the same way so‐​called “progressive” prosecutors have — to prioritize and target the worst behaviors.

Americans should be wary of enthusiastic dilettantes who think a one‐​year spike in crime rates during a global pandemic represents a civic emergency for which the only prescription is to abandon decades of progress on criminal justice reform and simply put even more people behind bars.  We tried that approach, and we learned that it doesn’t work — those of us who did our homework, anyway.

March 28, 2021 in Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Tuesday, March 09, 2021

Flagging federal criminal justice reform as great bipartisan legislative opportunity

Van Jones and Louis Reed have this great new CNN piece under the headlie "The one issue that could bring Democrats and Republicans together."  Here are excerpts:

Political commentators continue to wonder whether President Joe Biden can deliver on his promise of national unity and healing.  While his prospects for doing so seem increasingly limited, there is one area that offers some hope: criminal justice reform....

Biden has a unique opportunity to build on his predecessors' progress. To start, he can:

1. Increase funding for the First Step Act. Biden can build on the existing bipartisan consensus by allocating more money to the kinds of educational and job training programs prescribed in the First Step Act. One of the core features of this legislation is "earned time credits," which lets people shorten the length of their sentences by completing various programs.

Demand is high. There is a waiting list of more than 11,000 people even for basic literacy programs. Access to these kinds of programs has been diminished even further during the Covid-19 pandemic. However, it's worth the investment because increasing educational and job training, treatment, and compassionate release programs can significantly reduce the federal prison population and recidivism rates.

2. Fix federal supervision systems.  When people are released from federal custody, many enter an incredibly harsh supervised release system.  Due to laws requiring mandatory supervision sentences and mandatory prison time for noncriminal "violations," many people get saddled with years or even decades of invasive monitoring and additional time behind bars for things like missing a meeting.

Biden could push for smart bipartisan reforms like capping the amount of time people spend under supervision, preventing people from returning to prison for noncriminal violations and allowing people to get off supervision early based on good behavior and participation in educational programs.  Reforms like these are already winning favor in red states (like Louisiana), purple states (like Michigan) and blue states (like California).

3. Back existing bipartisan legislative efforts. There are some measures that already have support from both sides of the aisle. None are perfect; the legislative process would likely strengthen many of them.  But if Biden is looking for common ground issues, these measures offer him a great starting point:

  • Safer Detention Act....
  • Smarter Pretrial Detention for Drug Charges Act....
  • The Driving for Opportunity Act....
  • Reintroduce the Smarter Sentencing Act....
  • Reintroduce the Community First Pretrial Reform and Jail Decarceration Act.

March 9, 2021 in Criminal justice in the Biden Administration, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Monday, March 01, 2021

"Why American Exceptionalism Abroad Requires Criminal Justice Reform"

The title of this post is the headline of this notable new commentary authored by Marc Levin published in The National Interest.  Here are excerpts:

Beyond eroding U.S. credibility as a beacon of human rights, diminishing confidence in America’s justice system, stemming in part from persistent racial disparities, threatens the unity that undergirds our fiscal strength as well.  Racial tensions drain U.S. economic vitality, and, considering that 43 percent of military members are racial or ethnic minorities, the dangers of white supremacy and the efforts to delegitimize our democracy and justice system are far from merely theoretical.

On the surface, national security and criminal justice policy may seem to be otherwise unrelated, but in fact, some of the major foreign policy lessons Americans have learned apply in great measure to justice reform.  Both require that policymakers are clear-eyed about the limits of government intervention, recognize the value of peace through strength and leverage the vitality and web of relationships that only a robust private sector and civil society can sustain....

Just as society must recognize the limits of military power to change civilizations that are centuries old, we must also confront limits to the efficacy of government-imposed punishment to change individuals.  The late criminologist Mark Kleiman captured this truth in his book When Brute Force Fails.  While penitentiaries in the United States originally stemmed from a Puritan inclination to “fix people,” prisons are often the worst environments to deliver treatment programs.  Reasons for this include separation from supportive family and employment, negative peer influences, depressing and even unhealthy conditions and frequent lockdowns that disrupt programming. Additionally, research shows that longer prison terms do not reduce recidivism.

Our overconfidence in punishment rests in part upon an incorrect presumption that criminal activity is entirely rational, even though research tells us that crime is often impulsive. Indeed, the average street-corner drug dealer makes less than minimum wage and takes significantly more risk than legal employment. But many young people don’t perform the cost-benefit calculations and find a sense of belonging in gangs that they may not have found in their families or schools. The efficacy of consequences in deterring crime is also undermined by the high percentage of defendants who suffer from mental illness and traumatic brain injuries, which impair judgment. In fact, suicide rates are nearly five times higher in U.S. jails than in the general population....

As with national security policy, those who are rational actors can potentially be deterred by the prospect of force, whether through police presence or punishment. Research suggests, however, that increasing the perceived chance of being caught is a much more effective crime-control tool than increasing the severity of the penalty. Moreover, the incapacitation effect of incarceration must be measured against the degree to which the conditions behind bars, isolation from society and challenges of reentry can increase the proclivity to offend.

Still, there is substantial evidence that a strategic police presence on city streets in certain hotspots can deter some types of crime, such as auto thefts, without simply displacing it to other areas. There is also the “carrot and stick” approach to community supervision where research has shown it is the swiftness and sureness of the sanction, not its duration, that affects behavior, along with positive incentives. Additionally, long probation terms do not lead to more public safety, but instead cause larger caseloads, meaning that those in their first year or two on supervision who can benefit from significant attention are less likely to get it....

The “defund the police” slogan was intended by all but the most radical advocates to communicate that other types of interventions, such as using clinicians to respond to some mental health calls, could contribute as much or more to safety as a police-led response.  Another innovation, READI Chicago, is a non-profit program that promotes peace in the most dangerous parts of Chicago by targeting men who are most likely to commit or be victims of violence.  It provides them with subsidized transitional jobs along with cognitive behavioral therapy and services such as case management, skill-building and peer mentoring by credible messengers.  Additionally, when it comes to incarcerated people who are reentering society, non-profit initiatives like the Prison Entrepreneurship Program that similarly tap into the power of relationships can reduce recidivism through efforts that go beyond reliance solely upon government-operated programming.

Coming to terms with the limits of brute force, the value of peace through strength and the central role of the private sector and civil society can prove challenging, in different ways, for both the Right and Left.  In general, neoconservatives have supported regime change abroad and more incarceration at home.  Meanwhile, some on the left were reluctant to acknowledge the deterrent effect of our Cold War military power and, in the criminal justice context, often place too much faith in government programs to rehabilitate people, without enough emphasis on the role of relationships fostered by families, religious congregations and non-profit organizations.  Just as America will always need military and police forces, strengthening the other parts of the country’s arsenal for promoting peace and justice at home and abroad can reduce its need to use them.

In both national security and criminal justice policy, the nation is well-served when Americans check their ideological predispositions long enough to consider what history and research teaches them about these concepts as they build both a better justice system and a stronger nation.

March 1, 2021 in Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Thursday, February 25, 2021

Noticing some notable criminal justice panels at CPAC 2021

As highlighted by this NPR preview, the annual Conservative Political Action Conference (CPAC) kicks off tonight and concludes Sunday with former Prez Trump giving his first big speech since leaving office. Though there are lots and lots of storylines surrounding this year's CPAC, and I was intrigued to see a few criminal justice reform programs appearing on the CPAC 2021 agenda

Notably, one theme for various CPAC panels is the Bill of Rights, with Senator Mike Lee slated to give a speech tomorrow morning titled "Why the Left Hates the Bill of Rights... and We Love It."  But it is not exactly clear that the CPAC folks really loves ALL of the Bill of Rights: the CPAC agenda has a whole lot more folks slated to speak about those parts of the Bill of Rights that primarily deal with civil rights rather than criminal defendant rights.  For example, the Fifth Amendment panel on the first day has four participants focused on "Freedom from Confiscation of Private Property" and nobody speaking about the array of criminal procedure protections also in the Fifth Amendment.  Still, it is encouraging to see that there will be these panels on the even Amendments dealing with criminal issues:

Amendment IV: Unreasonable Search and Seizures

Louis Reed, Dream Corps Justice
Pastor Darrell Scott, CEO of National Diversity Coalition for Trump
Moderated by David Safavian, American Conservative Union

Amendment VI: Rights of the Accused

KT McFarland, American Conservative Union Foundation Board Member

Amendment VIII: Cruel and Unusual Punishment: Does Tough on Crime Messaging Work on Election Day?

Doug Deason, Deason Capital Services LLC
Rep. Byron Donalds (FL-19)
Jim McLaughlin, Pollster for President Trump
Fmr. Rep. Mark Walker (NC-06)
Moderated by Brett Tolman, American Conservative Union Foundation

I find it a bit discouraging to see only two panelists scheduled to discuss the Fourth Amendment and a single person due to talk about the Sixth Amendment (while panels on the "hot button" Third and Seventh Amendments are together bigger).  I find it even more discouraging that the panel on the Eighth Amendment, an amendment intended to preclude certain extreme forms of punishment no matter their political support, is going to be all about about whether extreme forms of punishment are still politically popular.

Still, I am glad these topics will be covered, and this one additional CPAC 2021 panel is especially interesting:

Conservative Prosecutors: Conservative Reforms

David O. Leavitt, Prosecutor for Utah County
Brett Tolman, American Conservative Union Foundation
Kent Volkmer, Pinal County Attorney
Tori Verber Salazar, DA for San Joaquin County, CA
Moderated by Chelsea Murphy, Right on Crime

As regular readers know, the so-called "progressive prosecutor" movement truly is a hot topic in criminal-justice reform and academic circles.  I am quite intrigued to see a panel at CPAC embrace the label "Conservative Prosecutors," and I am very interested to hear what conservative prosecutors would consider "conservative reforms."

February 25, 2021 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Monday, February 08, 2021

"Who Punishes More? Partisanship, Punitive Policies, and the Puzzle of Democratic Governors"

The title of this post is the title of this notable new research published in Political Research Quarterly authored by Anna Gunderson. Here is its abstract:

The growth of the carceral state over the last few decades has been remarkable, with millions of Americans in prison, jail, on parole or probation.  Political science explanations of this phenomenon identify partisanship as a key explanatory variable in the adoption of punitive policies; by this theory, Republicans are the driving force behind growing incarceration.  This article argues this explanation is incomplete and instead emphasizes the bipartisan coalition that constructed the carceral state.  I argue Democratic governors are incentivized to pursue more punitive policies to compete with Republicans when those Democrats are electorally vulnerable.  I test this proposition using a series of regression discontinuity designs and find causal evidence for Democrats’ complicity in the expansion of the carceral state. Democratic governors who barely win their elections outspend and outincarcerate their Republican counterparts. This article highlights Democrats’ role as key architects in the creation of vast criminal justice institutions in the states when those Democrats are electorally vulnerable.

February 8, 2021 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Monday, February 01, 2021

Highlighting bipartisan accomplishments and opportunities in the arena of criminal justice reform

Marc Levin has this notable new Hill commentary headlined "Build a bridge, not a wall, between administrations on justice reform," which emphasizes ground for bipartisan criminal justice reform work past and present.  I recommend the full piece and here are excerpts:

Few would dispute that the First Step Act was the crown jewel of bipartisan achievements over the last four years.  It contributed to the shrinking of the federal prison population through provisions such as lowering mandatory minimum penalties for drug offenses and making retroactive a reduction in the crack and powder sentencing law disparity.  Additionally, the CARES Act earlier this year expanded medical parole eligibility in the face of the wrenching impact of COVID-19 on incarcerated people and staff.

Other bipartisan accomplishments flew under the radar.  In 2018, the Juvenile Justice and Delinquency Prevention Act was reauthorized with provisions added to phase out the shackling of pregnant girls, require the separation of jailed youth from incarcerated adults, and ensure that racial disparities are tracked and addressed. In 2019, legislation was passed to stop abusive IRS prosecutions for “structuring,” which put some law-abiding small business owners through a dragnet simply because they made bank deposits of $10,000 or more.

Just two days before leaving office, Trump took action on another justice-related topic, overcriminalization.  In an effort to rein in the proliferation of obscure criminal penalties that can unwittingly trip up individuals and businesses, Trump issued an executive order mandating that when federal agencies create criminal offenses through regulations, they specify the culpable mental state required for conviction.

While the Biden administration should seek continuity in these areas, there is no shortage of work to do on other aspects of criminal justice reform.  In June 2020, the Council on Criminal Justice convened a bipartisan Task Force on Federal Priorities, chaired by former Georgia Gov. Nathan Deal, that issued numerous recommendations, including the reinstatement of Pell grants for people in prison that was adopted in December.  Among the most important items deserving action by the White House and Congress are Task Force recommendations to abolish federal drug mandatory minimums, expand record sealing, and allow courts to take a second look at certain sentences after individuals have spent many years behind bars.

Fortunately, many of these priorities are already teed up for bipartisan action in Congress.  For example, acquitted conduct legislation backed by lawmakers ranging from Sen. Richard Durbin (D-Ill.) to Sen. Mike Lee (R- Utah) would prohibit prosecutors from contaminating the sentencing phase of a trial with references to conduct that the jury determined the defendant was not guilty of.

Another priority is marijuana reform, which — at a minimum — should include waiving federal laws that interfere with state legalization of medicinal or recreational marijuana. All but six states have now legalized marijuana in some form, and yet federal law inexplicably continues to classify it as a Schedule 1 drug, along with heroin, LSD, and crack cocaine.  This continued federal war on cannabis drives underground what should be legitimate activity going through reputable financial institutions.  The new administration and Congress must not only start a new chapter on marijuana policy, but also remedy the injustices and inequities of the past by authorizing actions such as automatic record clearing of marijuana convictions....

Criminal justice policy is too important to leave to any one political party.

February 1, 2021 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Tuesday, January 19, 2021

"Reimagining the Death Penalty: Targeting Christians, Conservatives"

The title of this post is the title of this recent paper by SpearIt that is available via SSRN. Though posted a few months ago, I just came across the paper and it certainly remains timely.  Here is its abstract:

This Article is an interdisciplinary response to an entrenched legal and cultural problem.  It incorporates legal analysis, religious study and the anthropological notion of “culture work” to consider death penalty abolitionism and prospects for abolishing the death penalty in the United States.  The Article argues that abolitionists must reimagine their audiences and repackage their message for broader social consumption, particularly for Christian and conservative audiences. Even though abolitionists are characterized by some as “bleeding heart” liberals, this is not an accurate portrayal of how the death penalty maps across the political spectrum.  Abolitionists must learn that conservatives are potential allies in the struggle, who share overlapping ideologies and goals.  The same holds true for Christians — there is much in the teachings of Jesus to suggest that he aligned more with forgiveness than capital retribution.  As such, abolitionists would do well to focus on these demographics more earnestly than in the past.  The notion of “culture work” underscores these groups as natural allies in the quest to end the death penalty.

January 19, 2021 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Tuesday, January 12, 2021

"Legitimacy Matters: The Case for Public Financing in Prosecutor Elections"

The title of this post is the title of this new article in the latest issue of the Washington and Lee Journal of Civil Rights and Social Justice authored by Rory Fleming.  Here is a part of its introduction:

Part I of this Article will present the results of two interlinked studies on candidate campaign finance in every election with a progressive prosecutor candidate from 2015 through 2019.  The first study examines campaign funding disparities between incumbent prosecutors and progressive challengers, while the second examines the differentials using the Cost Per Vote (CPV) metric.  Part II will discuss the major findings of the two studies, such as how progressive challengers in Democratic primaries seem to only win when a sufficient amount of Soros PAC money is granted, and how higher CPV values translate to greater tensions between local prosecutor offices and their communities.  Part III traces how the Soros-reliant funding model for progressive prosecutors has created an unprecedented crisis of prosecutorial legitimacy in many major urban counties.  Part IV presents public funding for prosecutor selections as one solution that can balance the desirability of competitiveness in prosecutor elections with the need to curb the backlash against prosecutors working to end mass incarceration.  V concludes.

January 12, 2021 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Monday, January 11, 2021

Interesting accounting of the "Top 5 Criminal Justice Reforms Advocates Want Under Biden"

Law360 has this notable new piece under the headline "Top 5 Criminal Justice Reforms Advocates Want Under Biden." Here is the preamble to the annotated Top 5 list, as well as the list itself:

Joe Biden's election as president has sparked hope among criminal justice advocates and organizations that his administration will overhaul the U.S. criminal justice system and implement reforms they have been seeking for years.

Biden's campaign website promises that the Democratic president-elect will "strengthen America's commitment to justice and reform our criminal justice system," and includes dozens of proposed changes to be made under his administration. But whether he will achieve all of these promises is unclear.

Advocates told Law360 that Biden's biggest challenge will be fighting political opposition and uniting Congress. However, they believe having a president who prioritizes criminal justice reform could sway lawmakers to pass legislation that has been collecting dust on their desks.

"Even though there's bipartisan consensus around the need for criminal justice reform, what that means in practice, what the fine print is, is where all the challenge is, and there isn't necessarily consensus right now," said Kara Gotsch, director of strategic initiatives for The Sentencing Project, a nonprofit research organization seeking to reduce incarceration rates.

Here are the top five criminal justice reforms that advocates told Law360 they want under Biden's administration and what the president-elect has promised he will do:

1.  Address COVID-19 in Prisons and Jails...

2.  End Mandatory Minimum and Life Sentences...

3.  Expand Decriminalization of Drug Use...

4.  More Policing Accountability and Alternatives...

5.  Expand Incarceration Alternatives and Community Programs...

Especially because there are three federal executions scheduled for this week, I am a bit surprised that this list did not include abolishing the federal death penalty.  I also know many advocates are eager to see clemency reform as part of the Biden agenda (though the commentary includes suggestions that aggressive use of clemency by Prez-elect Biden could help achieve these other goals).

Because there is so much criminal justice reform work to do, it will be quite interesting to see what CJ issues are given priority in the weeks and months ahead.  Of course, what gets prioritized and what actually gets done will not just be shaped by Biden's appointments to the Justice Department, but also by what folks on Capitol Hill might have in mind.  Especially with certain GOP legislators now talking about the importance of "unity," perhaps federal legislators can unify around getting some significant criminal justice reform enacted in the first 100 days of the Biden Adminstration.

Some prior related posts:

January 11, 2021 in Criminal justice in the Biden Administration, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Friday, December 18, 2020

"How States Transformed Criminal Justice in 2020, and How They Fell Short"

The title of this post is the title of this big retrospective put together masterfully by Daniel Nichanian at The Appeal: Political Report.  I highly recommend review of the whole piece, so that you can fully understand its subhealine: "This year of crises, revisited. Nearly 90 state-level bills and initiatives. 17 themes. 7 maps." And here is the lengthy piece's preamble to the issue-by-issue review of reforms:

Throughout 2020’s unprecedented challenges, criminal justice reform advocates called for sweeping changes.  But state officials and legislatures largely ducked the COVID-19 pandemic that is raging inside prisons and jails, and the protests against police brutality and racial justice that followed Breonna Taylor and George Floyd’s murders.  With some exceptions, they forgoed the sort of reforms that would have significantly emptied prisons amid the public health crisis or confronted police brutality and racial injustice in law enforcement.

Still, on other issues there was headway, and states — whose laws and policies control a lot about incarceration and criminal legal systems—set new milestones: They decriminalized drug possession, expanded and automated expungement availability, repealed life without parole for minors and the death penalty, and ended prison gerrymandering, among other measures.

Throughout the year, The Appeal: Political Report tracked bills, initiatives, and reforms relevant to mass incarceration.  Just as in 2019, here’s a review of major changes states adopted in 2020.

Jump to the sections on: the death penaltydrug policyearly release and paroleyouth justicepolicingfines and feespretrial detentiontrials and sentencingvoting rightsexpungement and re-entryprison gerrymandering — and then there’s more.

December 18, 2020 in Elections and sentencing issues in political debates, Offense Characteristics, Prisons and prisoners, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Thursday, December 17, 2020

Lots of recommendations for criminal justice reform for the incoming Biden Administration

The PBS News Hour has this recent piece headlined "What a Biden administration could mean for criminal justice reform," and it does a nice job providing a broad overview of the wide array of issues of concern to criminal justice reform advocates.  Here is the first paragraph of the extended piece:

President-elect Joe Biden will face pressure when he takes office to make swift changes to the Department of Justice.  But while he’ll be able to implement some reforms on his own, expected pushback from Congress and legal fights could make it hard for Biden to deliver many of the sweeping criminal justice reforms that advocates say are necessary.

I recommend the PBS piece for a quick and summary account of "the sweeping criminal justice reforms that advocates say are necessary."  But anyone interested in a fuller accounting of criminal justice issues of interest and concern on the eve of a new administration, be sure to check out these three big recent reports from prominent reform organizations setting forth ideas and recommendations for the incoming Biden Administration:

There reports collectively run well over a hundred pages, which serves to highlight just how robust and agenda some groups have for criminal justice reform as we anticipate a new administration and Congress.  I would welcome reader input and feedback (in the comments or via email) about whether any particular pieces of advice and specifics recommendations in these reports seem especially astute (or especially misguided).

December 17, 2020 in Criminal justice in the Biden Administration, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (5)

Wednesday, December 02, 2020

Interesting advocacy for Senator Durbin to take over top Dem spot on Senate Judiciary Committee

In my upper-level sentencing class, I spend a lot of time highlighting for students how many different system players have an impact on sentencing law, policy and practice.  Too often, a cursory discussion of sentencing looks only at trial judges and judicial decision-making.  But at the case-specific level, decisions by victims and police and prosecutors and defense attorneys can often have a profound and even controlling impact on sentencing outcomes.  System-wide, players inside and around all levels of legislative, executive and judicial branches can directly and subtly impact sentencing law and policy.  These realities are on my mind upon seeing this recent Hill piece headlined "Criminal justice groups offer support for Durbin amid fight for Judiciary spot."  Here are the details:

A coalition of criminal justice groups is signaling support for Sen. Dick Durbin (D-Ill.) in his bid to take over the top Democratic spot on the Senate Judiciary Committee.  Justice Roundtable, a coalition of more than 100 groups, sent a letter to Senate Democratic Leader Charles Schumer (D-N.Y.), obtained exclusively by The Hill, signaling support for Durbin, citing his previous work on criminal justice reform.

"At this inflection point in the nation’s history, particularly as we confront a devastating pandemic and systemic racial inequality, we are comforted to know Senator Durbin’s long-standing commitment to human rights, fairness and justice will guide him at this critical time.  He is a trusted and experienced leader, and we welcome his ascension in the Judiciary Committee," Justice Roundtable leadership wrote to Schumer.

Durbin, who was recently reelected to serve as the Senate Democratic whip in the next Congress, has worked for years on criminal justice legislation.  Most recently he teamed up with Sen. Chuck Grassley (R-Iowa), who was then the chairman of the Judiciary Committee, on the Sentencing Reform and Corrections Act and the First Step Act.  The First Step Act, which incorporated provisions of the first bill, was passed in 2018 after Senate Majority Leader Mitch McConnell (R-Ky.) agreed to give it a vote amid pressure from the White House and a bipartisan group of senators.

"If not for Dick Durbin sentencing reform would not be a part of the First STEP Act. He was very much an ally of the criminal justice groups and the liberal groups," Inimai Chettiar, the federal legislative and policy director for the Justice Action Network, told The Hill, crediting Durbin with "holding people's feet to the fire."

Durbin and Grassley, who will chair the Judiciary Committee if Republicans keep the majority, have also teamed up this year on legislation reforming compassionate release for federal prisoners amid the coronavirus.

Durbin, who is serving in the No. 2 spot as party whip, announced that he would seek the party's top position on the panel after Sen. Dianne Feinstein (D-Calif.) said she would step down from the spot. Some progressives, however, have signaled support for Sen. Sheldon Whitehouse (D-R.I.), who has also been active on criminal justice and prison reform and has been a leading voice in the caucus on issues like campaign finance reform and the judiciary....

"Anyone who cares about criminal justice reform and its impact on racial justice should want [Durbin] to be the top Democrat on Senate Judiciary," Kevin Ring, the head of the FAAM Foundation, tweeted amid the progressive pushback against Durbin. He added on Monday that "this is madness. You don’t pass over Michael Jordan to shake things up. Dems should pick Durbin if they want to pass bolder criminal justice reform."...

The offers of support for Durbin comes as criminal justice groups are gearing up to try to get additional legislation passed under the incoming Biden administration. Biden, during the White House race, vowed to end the government's use of private prisons, end cash bail and work to end the use of the death penalty.

If Durbin or Whitehouse would be chair or ranking member of the Judiciary Committee remains unclear because which party will control the Senate will come down to the two Georgia runoff elections on January 5. "I think it is critically important who the leadership of the Senate Judiciary Committee is going to be and I think Dick Durbin has a very proven record of being able to fight for criminal justice reforms," Chettiar said.

It is so interesting to see criminal justice reform advocates advocating to a Senate leader about who should ge given a leadership role in the chamber.  These advocates fully understand the importance of having a vocal proponent for criminal justice reform serving in a key Senate role (although how key that role is to be awaits the run-off results next month in Georgia).  As I explained in this post last month, I am cautiously optimistic that some form of sentencing reform will be an arena for important bipartisan discussion and work in the next Congress no matter who is in charge.  But who is in charge still matters a lot, so it will be interesting to see how the new Senate Judiciary Committee takes shape. 

December 2, 2020 in Criminal justice in the Biden Administration, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Wednesday, November 25, 2020

"Here's One Thing Republicans and Democrats Agree on: Criminal Justice Reform"

The title of this post is one headline that I have seen for this new New York Times article (which echoes some themes I have stressed in a few posts here and here from election week). I recommend the article in full, and here are some excerpts:

In a video presenting his closing argument for maintaining Republican dominance of the Senate, the majority leader, Mitch McConnell of Kentucky, chose three issues — tax cuts, judicial appointments and criminal justice reform.

Mr. McConnell had resisted bringing the First Step Act, which expanded release opportunities for federal prisoners, to the floor under former President Barack Obama and did so during the Trump administration only under extreme pressure.  Its passage firmly established the allure of reform and is now widely cited as President Trump’s most significant bipartisan achievement....

[C]riminal justice reform offers something for just about everyone: social justice crusaders who point to yawning racial disparities, fiscal conservatives who decry the extravagant cost of incarceration, libertarians who think the government has criminalized too many aspects of life and Christian groups who see virtue in mercy and redemption.

At the federal level, both parties have proposed police accountability bills.  Senator Lindsey Graham, the Republican chairman of the Judiciary Committee, has recently signaled that he is open to reinstating parole for federal prisoners, which was eliminated during the tough-on-crime 1980s.  President-elect Joseph R. Biden Jr. has promised to reduce incarceration and supports abolishing mandatory minimum sentences and expanding mental health and drug treatment.

Relatively few voters ranked the criminal justice system at the top of their list of concerns, even after the killing of George Floyd in May thrust policing into the national spotlight.  But patient work by advocates, buy-in from conservative groups and the United States’s position as a global leader in incarceration have gradually spread the message that the system is broken, and made fixing it a cause with broad appeal. 

A wide array of criminal justice measures did well on the ballot, including increasing police oversight, legalizing drugs and restoring voting rights to those with felony records.

Fewer Americans than ever believe the system is “not tough enough,” according to a recent Gallup poll.  And in a sign of how much attitudes have changed since lawmakers boasted of locking people up and throwing away the key, Mr. Trump and Mr. Biden sparred over who had let more people out of prison.

The fact that it is a niche issue may serve to increase its chances of breaking partisan gridlock....

The pandemic, in which prisons and jails have become some of the biggest viral hot spots, presents an opportunity for advocates, who hope that Covid-19 relief measures like expanded medical release and early parole will outlast the spread of the coronavirus.

Pandemic-related budget shortfalls represent another opportunity. The Texas Criminal Justice Coalition, a progressive group, has called its legislative agenda for next year “Spend Your Values, Cut Your Losses,” arguing that measures like lowering drug penalties and making it harder to revoke probation and parole will save millions of dollars....

Robert Blizzard, a Republican pollster, said that criminal justice reform proposals garner support across the board, and help Republicans reach outside their base to groups like suburban women and people of color.

I am pleased to see this article and like many of its themes.  But amidst generations of mass incarceration and criminalization, data showing a third of US adults has a criminal record, and nationwide 2020 protests focused on racial (in)justice, I am still struck and troubled by the blasé statement that criminal justice reform is just a "niche issue."  (Since I read nine of the first ten Amendments to the US Constitution as setting forth formal or informal safeguards against extreme uses of the police power, I suppose I should be grateful the Framers did not view as "niche" the operation of American criminal justice systems.)

This NY Times piece, coming right after a big transition election, leads me to recall this online article I penned for the Harvard Law & Policy Review almost exactly 12 years ago under the title "Reorienting Progressive Perspectives for Twenty-First Century Punishment Realities."  Among other points, I urged progressives to seek to forge bipartisan coalitions for reform in this way:

[P]rogressives can and should be aggressively reaching out to modern conservatives and libertarians in order to forge new coalitions to attack the many political and social forces that contribute to mass incarceration....  If truly committed to their espoused principles of human liberty and small government, modern conservatives and libertarians should be willing and eager to join a serious campaign committed to reversing the incarceration explosion.  Progressives, rather than categorically resisting calls for smaller government, should encourage modern conservatives and libertarians to turn their concerns and energies toward improving America’s criminal justice systems.  Areas where harsh criminal laws appear to be driven by government efforts to hyper-regulate often intangible harms, such as extreme mandatory sentencing statutes related to drug crimes and gun possession, seem especially likely settings for a convergence of views and new alliances for advocacy efforts.  Specific, issue-based advocacy may allow progressives to forge coalitions with unexpected allies in order to work against some of the most unjust modern sentencing laws and policies.

Though a lot of progress has been made in since I wrote these words back in 2008, there is still a whole lot more that needs to get done. I hope political leaders at the federal, state and local levels will continue to keep working together (on this "niche" issue) to continue to move forward aggressively and effectively.

November 25, 2020 in Criminal justice in the Biden Administration, Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (0)

Monday, November 23, 2020

Latest Gallup poll indicates "U.S. Support for Death Penalty Holds Above Majority Level"

Yf68dytyzk6h07t16w_kyqThe quoted portion of the title of this post is the headline of this Gallup report from a few days ago,  Here are excerpts from the report:

Americans' support for the death penalty continues to be lower than at any point in nearly five decades.  For a fourth consecutive year, fewer than six in 10 Americans (55%) are in favor of the death penalty for convicted murderers.  Death penalty support has not been lower since 1972, when 50% were in favor.

Gallup has asked Americans whether they are "in favor of the death penalty for a person convicted of murder" since 1936, when 58% said they were. In all but one survey -- in 1966 -- more Americans have been in favor than opposed.  The 1960s and early 1970s brought many legal challenges to the death penalty, culminating in a 1972 U.S. Supreme Court ruling that invalidated state death penalty statutes.  After the high court upheld revised state death penalty laws in 1976, support for capital punishment grew, peaking at 80% in 1994, a time of heightened public concern about crime.

This year's results are based on a Sept. 30-Oct. 15 survey.  Gallup occasionally asks another question to gauge death penalty support, with respondents indicating whether they believe the better punishment for murder is the death penalty or life imprisonment with no possibility of parole.  In the most recent update, from 2019, Americans favored life imprisonment over the death penalty by 60% to 36%, a dramatic shift from prior years.

Many Americans are thus conflicted on the death penalty.  The two Gallup trend questions indicate that about one in five Americans express theoretical support for use of the death penalty but believe life imprisonment is a better way to punish convicted murderers....

Both Democrats and independents show declines in their support for the death penalty, including similar drops (eight and seven percentage points, respectively) since 2016.  Between the 2000-2010 and 2011-2016 time periods, Democratic support dropped more (eight points) than independent support did (three points).  Now, 39% of Democrats and 54% of independents are in favor of the death penalty.  Meanwhile, Republicans' support for the death penalty has held steady, with 79% currently supporting it, unchanged since 2016 and barely lower than the 80% registered between 2000 and 2010....

Changes in the U.S. population appear to be a factor in declining death penalty support in recent years. Groups that are constituting a greater share of the U.S. adult population over time -- including millennials and Generation Z, non-White adults and college graduates -- all show below-average support for the death penalty.

Over the past four years, an average of 45% of those in Generation Z (those born after 1996) have favored the death penalty, as have 51% of millennials (those born between 1980 and 1996).  That compares with 57% of those in Generation X, 59% of baby boomers and 62% of those born before 1946.

Forty-six percent of non-White Americans, versus 61% of Non-Hispanic White Americans, support the death penalty. Among college graduates, 46% favor the death penalty, compared with 60% of those without a college degree.

November 23, 2020 in Death Penalty Reforms, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Tuesday, November 17, 2020

Notable new Gallup poll numbers on perceptions of the US criminal justice system

Bnlwz2mfyu2twk35wjqfzwThis new Gallup release, headlined "Fewer Americans Call for Tougher Criminal Justice System," reports on new polling number concerning pubic views on the US criminal justice system.  Here are the details:

Americans' belief that the U.S. criminal justice system is "not tough enough" on crime is now half of what it was in Gallup's initial reading of 83% in 1992.  The latest measure, at 41%, is the lowest on record and down slightly from the previous reading in 2016 -- although it remains the view of the plurality.  At the same time, there has been a seven-percentage-point uptick among those who say the system is "too tough" (21%) and no change among those who think it is "about right" (35%).

Americans' perceptions of whether the criminal justice system in the U.S. is too tough, not tough enough or about right in its handling of crime since 1992.  The percentage saying it is not tough enough has fallen from 83% in 1992 to 41% now.  At the same time, the percentage saying it is about right has risen from 12% in 1992 to the current 35%, and those who think it is too tough has increased from 2% in 1992 to 21% now.

Across the five times Gallup has asked this question since 1992, when public perceptions of national and local crime rates were at or near their highest points, there has been a steady decrease in the percentage saying the system is not tough enough and increases in the percentages saying it is too tough or about right.  These changes coincide with declines in crime rates in the U.S.  The latest reading is from Gallup's annual Crime poll, conducted Sept. 30-Oct. 15, 2020.

Americans' faith in the U.S. criminal justice system remains low according to Gallup's 2020 Confidence in Institutions poll conducted earlier this year, and confidence in one element of that system -- the police -- fell to a record-low level in the same poll.  This decline in confidence in the police followed several high-profile deaths of Black Americans at the hands of police officers, including George Floyd, Breonna Taylor and Rayshard Brooks.

Views of the criminal justice system vary by party identification and racial background.  A 58% majority of Republicans and Republican-leaning independents say the criminal justice system is not tough enough.  However, this view is shared by less than half as many Democrats and Democratic-leaning independents (25%), while 37% think the system is about right and 35% too tough.

More White Americans than non-White Americans say the justice system is not tough enough on crime (45% vs. 31%, respectively).  The plurality of non-White adults, 40%, think it is about right, while 26% believe it is too tough.

Americans across these four party and racial subgroups have become significantly less likely to say the criminal justice system is not tough enough, but it has declined the most among Democrats, falling from 62% in 2000 to 25% today.  Over the same period, Democrats' view that the system is too tough has grown from 6% to 35%.

Given two options for approaches to lowering the U.S. crime rate, more Americans prefer putting money and effort into addressing social and economic problems such as drug addiction, homelessness and mental health (63%) rather than putting money and effort into strengthening law enforcement (34%).

November 17, 2020 in Elections and sentencing issues in political debates, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Thursday, November 05, 2020

An effective disquisition on the drug war's descent

This lengthy new New York Times article provides a thoughtful review of how diverse coalitions have now come together to start unwinding the war on drugs. The full title of this piece highlights its themes: "This Election, a Divided America Stands United on One Topic: All kinds of Americans have turned their back on the destructive war on drugs." I recommend the full piece, and here is how it starts and ends:

It can take a while to determine the victor in a presidential election.  But one winner was abundantly clear on Election Day. Drugs, once thought to be the scourge of a healthy society, are getting public recognition as a part of American life. Where drugs were on the ballot on Tuesday, they won handily.

New Jersey, South Dakota, Montana and Arizona joined 11 other states that had already legalized recreational marijuana. Mississippi and South Dakota made medical marijuana legal, bringing the total to 35.

The citizens of Washington, D.C., voted to decriminalize psilocybin, the organic compound active in psychedelic mushrooms. Oregon voters approved two drug-related initiatives. One decriminalized possession of small amounts of illegal drugs including heroin, cocaine and methamphetamines. (It did not make it legal to sell the drugs.) Another measure authorized the creation of a state program to license providers of psilocybin.

Election night represented a significant victory for three forces pushing for drug reform for different but interlocking reasons. There is the increasingly powerful cannabis industry. There are state governments struggling with budget shortfalls, hungry to fill coffers in the midst of a pandemic.

And then there are the reform advocates, who for decades have been saying that imprisonment, federal mandatory minimum sentences and prohibitive cash bail for drug charges ruin lives and communities, particularly those of Black Americans.

Decriminalization is popular, in part, because Americans believe that too many people are in jails and prisons, and also because Americans personally affected by the country’s continuing opioid crisis have been persuaded to see drugs as a public health issue....

If states are the laboratories of democracy, then, as Mr. Pollan put it, some of the measures passed on Tuesday will set up interesting experiments.  Neighboring states will watch as Montana and New Jersey create regional cannabis destinations to be envied, imitated or scorned; unlike some other states, Montana and New Jersey do not directly border states where marijuana is fully legal, so they could draw more customers from out of state (though it is illegal to bring marijuana into a state where it is criminal). 

And it’s not entirely clear that marijuana is always the fiscal boost its champions say it is, even as cannabis tourism has helped states like California and Colorado. A state assessment of the financial impact of legalization in Montana, for example, showed that the state expected significant revenue — as much as $48 million a year in 2025 — but that its implementation costs would be nearly as high.

Policy wonks will assess the performance of Oregon’s health authority as it creates its program to license psilocybin distributors, an unusual function for a state department of health regardless of the drug in question.  And Americans all over the country will note — warily or hopefully — what happens in Oregon, now that possession of all controlled substances has been decriminalized.

Adam Eidinger, an activist in Washington, D.C., who proposed the ballot measure that pushed to legalize marijuana there, was also the treasurer of the campaign to decriminalize psilocybin.  (The campaign operated out of his house in the Kalorama neighborhood, home to the Obamas and Jared Kushner and Ivanka Trump.)

Next year, Mr. Eidinger plans to campaign for an initiative in D.C. to decriminalize possession of all controlled substances, much like the one that passed in Oregon. “People want to end the drug war,” he said.

Mr. Sabet, the former White House drug policy adviser, did not expect the nation to follow in Oregon’s footsteps — at least not immediately. “I don’t know if I’d put my money on America wanting to legalize heroin tomorrow,” he said.

November 5, 2020 in Campaign 2020 and sentencing issues, Drug Offense Sentencing, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Wednesday, November 04, 2020

"Drugs Won Big During the U.S. Election"

The title of this post is the title of this Vice piece highlighting one clear pattern of clear winners during election 2020. Here are excerpts:

Despite the uncertainty over the outcome of the U.S. presidential race Wednesday morning, Mississippi cannabis advocate Natalie Jones Bonner was feeling “absolute joy.”  Jones Bonner, 59, was celebrating the passing of Initiative 65, a ballot measure that will establish a medical cannabis program in the state.

Mississippi is one of a handful of states to pass drug reform measures last night.  In a groundbreaking decision, Oregon voted to support Measure 110, which will decriminalize all drugs, including cocaine and heroin.  Oregon also voted to legalize access to psychedelic mushrooms for medicinal purposes.

Arizona, Montana, New Jersey, and South Dakota all voted to legalize cannabis for recreational purposes.  South Dakota additionally voted yes to establishing a medical cannabis regime. Voters in the District of Columbia passed a measure to decriminalize shrooms.

The outcomes are a boon for drug reform advocates and the cannabis industry, making the possibility of federal weed decriminalization more feasible.  Currently, 33 states allow medical cannabis and 11 have recreational regimes.  Several of the states that passed measures last night have historically been proponents of the war on drugs, with Black people disproportionately arrested for drug crimes....

Matt Sutton, spokesman for the Drug Policy Alliance, said the support of drug reform is crucial in the context of wider conversations around police brutality and the failings of the criminal justice system.  He said Oregon’s decriminalization measure could result in a 95 percent decrease in racial disparities in arrests, according to the Oregon Criminal Justice Commission.

Sutton said it’s “remarkable” that weed legalization would pass in states like Montana, which has the highest rate of racial disparities in weed arrests, and South Dakota, where 10 percent of all arrests are tied to cannabis.

Economic gains, particularly as the pandemic is draining state resources, are in part behind the bilateral support of cannabis reform.  Sutton said he expects New Jersey’s decision to legalize cannabis to light a fire under New York, which has stalled in setting up its legal recreational regime.

Over at Marijuana Law, Policy & Reform I have been blogging a few reactions to marijuana's big election night via these two new posts:

November 4, 2020 in Campaign 2020 and sentencing issues, Drug Offense Sentencing, Elections and sentencing issues in political debates, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences | Permalink | Comments (0)

California voters reject ballot initiatives to roll back sentencing reforms and to eliminate cash bail among other notable votes

As reported in this AP piece, there were some notable mixed results on a number of California criminal justice ballot initiatives.  Here is the AP accounting of the two biggest items:

California has upheld several criminal justice changes, endorsing recent efforts to ease mass incarceration by reducing penalties and allowing for earlier releases. Voters also appeared likely to maintain the state’s current cash bail system as a majority opted for the status quo on both criminal justice ballot measures.

Voters on Tuesday defeated Proposition 20, rejecting supporters’ pleas to address what they called the “unintended consequences” of two previously approved ballot measures. One lowered penalties for drug and property crimes in 2014, while the second two years later allowed the earlier parole of most felons.

Voters by a 63% to 37% margin rejected proposals that would have barred criminals convicted of certain serious offenses from earlier release, increased penalties for repeated retail thefts, toughened parole standards and allowed for broader DNA collections.  Opponents said the measure would have set back reforms just as the nation focuses on a criminal justice system that has treated people of color inequitably.

Jay Jordan, executive director of Californians for Safety and Justice that backed the reforms, called the proposition’s defeat “a significant milestone in California’s ongoing effort to make its criminal justice system more effective” and said it would advance national reform efforts. Former governor Jerry Brown championed the 2016 ballot measure that allowed most felons to seek earlier parole and put $1 million of his remaining campaign funds into contesting Proposition 20....

Voters were also leaning toward keeping the state’s current cash bail system, with 55% rejecting a law passed in 2018 that would substitute risk assessments to decide who should remain in jail awaiting trial. The law stalled when the bail industry went to the ballot box.

Even some prominent civil rights groups agreed the system is broken but said the proposed fix might be even worse because it relies on risk assessments that The Bail Project says “codify systemic racism and could lead to higher rates of incarceration in some jurisdictions.”

State Sen. Bob Hertzberg, a Democrat from Los Angeles who wrote the law, said before Election Day that ending cash bail would put California “on the path to a more fair and more safe justice system that treats everyone equally under the law.” While most states recently have altered their pretrial release laws or policies, voters’ approval of Proposition 25 would make California “the only state with a complete prohibition on fiscal conditions of release,” according to National Conference of State Legislatures criminal justice expert Amber Widgery.

Under the new system, no one would pay bail and most misdemeanor suspects would remain free. Those charged with felonies or misdemeanor domestic violence, sex offenses or driving while intoxicated would be evaluated for their perceived risk of committing another crime or not appearing in court. Most would eventually be released, unless they are accused of certain crimes like murder or arson, or if a judge finds there are no conditions like electronic monitoring that could ensure their appearance at future hearings.

All the results of the California propositions can be found on in this article, which notes that another notable criminal justice reform passes:

Proposition 17 –  Allow Felon Parolees to Vote (Yes = 59.0%, No = 41.0%)

The passage of Proposition 17 grants the right to vote to parolees with felony convictions. Imprisoned convicted felons remain disqualified from voting.

And this Los Angeles Times piece, headlined "From George Gascón to jail diversion, criminal justice reform got a big boost in California," highlights the criminal-justice-reform-minded votes in Los Angeles bringing in a new DA and a local measure requiring "that 10% of locally generated, unrestricted county money — estimated between $360 million and $900 million — be spent on a variety of social services, including housing, mental health treatment and investments in communities disproportionally harmed by racism [while] the county would be prohibited from using the money on prisons, jails or law enforcement agencies."

November 4, 2020 in Campaign 2020 and sentencing issues, Elections and sentencing issues in political debates, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Tuesday, November 03, 2020

Sentencing reform ballot initiative in Oklahoma, SQ 805, appears likely to lose badly

I have been following closely, as highlighted by prior posted noted below, the interesting ballot initiative in Oklahoma seeking to limit the impact of nonviolent criminal history on sentencing outcomes.  Notably, back in 2016, Oklahoma voters approved a ballot initiative downgrading drug possession and a slate of minor property crimes from felonies to misdemeanors.  So state voters have a history of backing sentencing reform via ballot initiative.  But it seems that SQ 805 did not garner comparable support from Sooner voters.

Specifically, as of 10:15pm EST as reported here, there are over 88% of precincts reporting, and the NO vote has nearly 61% while the YES votes is just over 39%.  So it looks like this ballot initiative will not just lose, but lose by a sufficiently large margin that it might discourage other related reform efforts in the near future.

Prior related posts:

November 3, 2020 in Campaign 2020 and sentencing issues, Elections and sentencing issues in political debates, Offender Characteristics, Who Sentences | Permalink | Comments (0)

Some places to watch for results on criminal justice ballot initiatives

Images (2)The folks at Vox have created this webpage which will help track "live results" from some of the criminal justice ballot initiatives that voters are considering today around the country. Here is the set up:

In Oklahoma, voters could ban harsh sentencing enhancements that can keep people in prison longer for nonviolent crimes. In California, voters will consider three measures: one to affirm the end of cash bail, another to let people vote while on parole, and a third to roll back recent criminal justice reforms. In Nebraska and Utah, voters could prohibit slavery as a criminal punishment, including forced prison labor.  And in Kentucky, voters could approve a controversial crime victims’ rights law.

Not all of these are for reform as many people think of it today. Some of the initiatives, particularly in California and Kentucky, have been criticized by activists seeking to end mass incarceration and the war on drugs. But depending on how voters decide on these initiatives, they could continue the broader work of the past decade to fix America’s punitive criminal justice system.

The Vox page leaves out the large number of drug reform initiatives, but thankfully the folks at Marijuana Moment have created this great webpage with tracking tools to follow all the marijuana and drug reform ballot initiatives that voters are considering today around the country.  Here is how its set up:  

Marijuana Moment is tracking 11 separate cannabis and drug policy reform measures on ballots in seven states.  Stay tuned to this page for results as votes are counted.

Make sure to follow Marijuana Moment and our editors Tom Angell and Kyle Jaeger on Twitter for live news and analysis, and check our homepage for individual articles about each ballot measure as races are called.

Thanks to support from ETFMG | MJ, we have a single tracker tool below that lets you cycle through all of the key measures as well as separate standalone tools for each initiative.

And do not forget about this great web resource put together by the folks I have the honor to work with at The Ohio State University Moritz College of Law's Drug Enforcement and Policy Center.  The resource collects and organizes information and links about the significant number of drug policy reforms proposals appearing on state ballots this election cycle.  

Though I am interested in all these results, I am especially eager to see how Oklahoma's novel criminal history reform measure, how South Dakota's marijuana legalization initiative, and how Oregon's drug decriminalization measure fare. The nature of the issues and the states in which they are taking place strike me as especially interesting and important.

As always, I would be interested to hear from readers about what issues or races they are following especially closely tonight.

November 3, 2020 in Campaign 2020 and sentencing issues, Drug Offense Sentencing, Elections and sentencing issues in political debates, Marijuana Legalization in the States, Who Sentences | Permalink | Comments (0)

Tuesday, October 27, 2020

More great coverage of criminal justice players and issues on the 2020 ballot

In a few prior posts (here and here), I have flagged some effective reviews of many of the big races and issues appearing on state ballots this November.  I have now seen two more great accounts of the votes criminal justice fans should be following:

From The Appeal: Political Report, "Criminal Justice on the 2020 Ballot." The set up:

Thousands of prosecutors, sheriffs, governors, and attorneys general will be elected in 2020, on the heels of a series of wins by candidates who ran on fighting mass incarceration in 2019.  These offices set the policies that shape the prison population, the criminal legal system, cooperation with ICE, and much more.  This page features The Appeal: Political Report’s reporting and analyses of these often-overlooked but crucial elections.

From The Brennan Center for Justice, "Justice on the Ballot 2020." The set up:

With criminal justice on the ballot nationwide, we’ve compiled a list of 40 ballot initiatives and law enforcement electoral races worth watching on Election Day.  Our resource page provides short summaries of each criminal justice ballot initiative or race, with fresh and updated links to media coverage of the contests culled from reliable news sources.

From police oversight to immigration roundups in “sanctuary” jurisdictions, November’s election will have far-reaching consequences not just for federal criminal justice issues but also for state and local policies.  We hope our new page will serve as a handy guide leading up to Election Day and beyond to help you monitor key down-ballot races and causes.

UPDATE: I now see The Marshall Project has an additional new piece in this spirit headlined "7 States Where Voters Could Change the Future of Criminal Justice."

A few prior related posts:

October 27, 2020 in Campaign 2020 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Sunday, October 25, 2020

Covering just some of many criminal justice reforms stories percolating in 2020 election

Every election is important for the fate and future of criminal justice reform, but every even-year Fall it is hard not to get caught up in the notion that this year's election is uniquely significant and consequential.  As I noted in this prior post, the discussion at the last Prez debate leads me to be (foolishly?) hopeful that we will see some follow up to the FIRST STEP Act or some other form of of federal criminal justice reform in the coming years no matter who prevails at the federal level.  But surely the scope and contents of possible federal reform will depend not only on who is in the White House and who is in charge in Congress, but also on what kinds of reforms move forward and prove successful at the state and local level.   

Because the FIRST STEP Act at the federal level was made possible in part by the political and practical successes at the state level, even those focused primarily on the federal system ought to keep a close eye on state and local criminal justice reform and election realities.  Helpfully, there is a lot of good press coverage on all these topics these days, and here is a sampling:   

Some National Perspectives:

From The Appeal, "Your Guide To 30 Sheriff And Prosecutor Elections That Could Challenge Mass Incarceration: These are key local elections where criminal justice reform is on the line next month."

From the Drug Enforcement and Policy Center, "Drug Reforms on the 2020 Ballot: A closer look at drug policy reform decisions voters will make during the 2020 election"

From Fox News, "Marijuana-legalization supporters tout economic benefits in new voter pitch: Advocates argue sales and excise taxes would help bail out states crushed by coronavirus"

From Reason: "On Criminal Justice, Trump and Biden Are Running Against Their Own Records: The progressive who helped usher in mass incarceration is running against the law and order conservative who let prisoners go free."

From Vox, "How 2020 voters could change the criminal justice system, in 6 ballot measures: Voters in several states have a chance to change the criminal justice system in 2020."

From Vox, "2020’s psychedelic drug ballot measures, explained: Oregon and Washington, DC, voters may relax their laws for psychedelic drugs."

 

Some State Specifics:

From the Denver Post, "Half of Colorado’s district attorneys will be replaced after election, setting scene for future of criminal justice reform"

From Governing, "California to Vote on What’s Next for Criminal Justice Reform: The state’s Proposition 20 would expand felonies which are ineligible for parole and collect DNA samples of misdemeanor offenders. Californians must decide if it assures public safety or is backward progress."

From The Oklahoman: "Five things to know about Oklahoma State Question 805"

From Vox, "Oregon’s ballot measure to decriminalize all drugs, explained: The ballot measure is trying to move the state from a criminal justice to a public health approach on drugs."

October 25, 2020 in Campaign 2020 and sentencing issues, Drug Offense Sentencing, Elections and sentencing issues in political debates, Marijuana Legalization in the States, Who Sentences | Permalink | Comments (2)

Tuesday, October 20, 2020

"Drug Reforms on the 2020 Ballot"

2020-Ballot-Project-Header_for-web2The title of this post is the title of this great new web resource put together by the folks I have the honor to work with at The Ohio State University Moritz College of Law's Drug Enforcement and Policy Center.  The resource collects and organizes information and links about the significant number of drug policy reforms proposals appearing on state ballots this election cycle.  Here is introduction to the detailed state-by-state materials:

A closer look at drug policy reform decisions voters will make during the 2020 election

On election day 2020, voters will decide more than the next United States President. Drug policy and enforcement reforms will appear on numerous state-level ballots. Five states have qualifying initiatives that attempt to legalize marijuana for medical or adult-use consumption, including some states that will ask voters to decide on multiple pathways to a legal market. And marijuana reform is not the only drug-related issue on ballots. Initiatives in a few states and Washington, D.C. will ask voters to modify existing sentencing laws, decriminalize all drugs, or legalize psychedelics for adult-use and therapeutic reasons.

To gain a better understanding of what this election could mean for drug policy across the U.S., the Drug Enforcement and Policy Center (DEPC) has developed a list of key ballot initiatives reaching voters in 2020. Read on for a list of initiatives we will be watching this November in the areas of marijuana legalizationpsychedelics, and criminal justice.

Plus, don’t miss our post-election event Drug Policy Implications of the 2020 Elections on November 16, 2020. Our panel of experts will discuss the 2020 election results and what they are likely to mean for drug enforcement and policy at both the state and federal level.

October 20, 2020 in Campaign 2020 and sentencing issues, Drug Offense Sentencing, Elections and sentencing issues in political debates, Marijuana Legalization in the States | Permalink | Comments (0)

Wednesday, September 23, 2020

Interesting accounting of Facebook spending and advertising by presidential campaigns

The Marshall Project has this fascinating lengthy new piece on criminal justice advertising by the presidential candidates during the 2020 election cycle so far.  The full headline of the piece, which highlights its themes, is "Trump’s Crime and Carnage Ad Blitz Is Going Unanswered on Facebook: The president has spent millions on misleading Facebook ads targeting undecided voters, while Joe Biden has been virtually silent."  I recommend the piece in full, and here are excerpts:

To understand how Republicans and Democrats are using criminal justice issues to reach voters, the Marshall Project analyzed hundreds of thousands of political campaign advertisements on Facebook from December 2019 to this month. Arguably the most powerful political messaging platform in history, Facebook allows candidates to microtarget tailored messages to demographic groups and even to individual voters by name.  Probing that data lets us see how candidates reach voters, with a level of detail that earlier generations of strategists and political pundits could only dream of.

Our analysis found that of the $82 million Trump’s reelection campaign has spent on Facebook ads this year, $6.6 million paid for ads about crime and policing — a top focus of his Facebook campaign. Almost all of it came since George Floyd was killed by police in Minneapolis in May.  More than one-third of those ad buys were aimed at key battleground states and many sought to persuade specific undecided voters, and married women in particular.  The Biden campaign?  It didn’t spend a cent on criminal justice ads on Facebook until late August, choosing instead to focus on the COVID-19 pandemic and economic recovery.  Yet Biden had, during the Democratic primaries, articulated a more progressive criminal justice platform than any of his party’s recent nominees....

Trump’s message on criminal justice began with a focus on reform.  Last December, his campaign ran ads featuring the First Step Act, the criminal justice reform bill he signed in 2018, boasting that the president was “helping prisoners gain a new lease on life and is making America safer.”

Then in May, for three days before Memorial Day — when George Floyd would die on a Minneapolis street — Trump spent more than $175,000 on ads criticizing Biden for his role in policies like the 1994 crime bill: “Mass incarceration has put hundreds of thousands behind bars for minor offenses.”

It’s not clear who those ads were meant to reach as they sought to capitalize on Biden’s “If you have a problem figuring out whether you’re for me or Trump, then you ain’t Black” quote in a May interview.  They disappeared quickly as protests against police brutality began in cities across the country.

By early July, as the protests continued, the Trump campaign had decisively shifted its tone.  In one ad, a 911 call is picked up by an answering machine that says, “You have reached the 911 police emergency line.  Due to defunding of the police department, we’re sorry but no one is here to take your call.  If you’re calling to report a rape, please press 1.”

Around that same time, Biden’s Facebook ads focused on praising essential workers dealing with the coronavirus pandemic and on vague messages of national unity.

You wouldn’t have seen any of these ads if you live in a state like California or Oklahoma that is considered a firm lock for one party.  Biden’s were shown in a narrow group of swing states, including Arizona, Florida, Michigan, North Carolina, Pennsylvania, and Wisconsin.  The Trump campaign paid Facebook about $1.5 million to show its “911” ads only to people in a slightly wider list of battleground states that included Ohio and Texas.  Since June, Trump’s campaign has spent about $2.6 million on criminal justice–related ads targeted to battleground states.

In the battleground states, these persuasive ads are not aimed at every voter.  The power of Facebook for campaigns is that it allows them to show ads directly to the specific voters they think are most likely to be on the fence.  The Trump campaign asked Facebook to show its “911” ad to at least two separate groups of people: first, to married women—the “suburban housewives” Trump has said he hopes to reach — and, second, to people specified by their name or phone number on a spreadsheet the campaign uploaded to Facebook. 

There are two main kinds of political ads on Facebook: ones intended to win votes and ones intended to encourage donations. That Trump’s “911” ad was presented to users in toss-up states suggests the goal was to persuade people to change their minds, according to digital political strategists.  When either campaign wants to raise money, they show ads to their own supporters in uncontested states like deep blue New York where they’d be unlikely to pick up additional electoral votes.

September 23, 2020 in Campaign 2020 and sentencing issues, Elections and sentencing issues in political debates | Permalink | Comments (0)

Thursday, September 17, 2020

"Public opinion and the politics of collateral consequence policies"

The title of this post is the title of this notable new article authored by Travis Johnston and Kevin Wozniak recently published in Punishment & Society.  Here is its abstract:

We analyze data from a national sample of the U.S. population to assess public support for policies that deny former offenders’ access to job training programs, food stamps, and public housing. We find that Americans generally oppose benefit restrictions, though support for these policies is higher among Republicans and people with higher levels of racial resentment.  We also find that a legislator’s criminal justice reform positions generally do not significantly affect voters’ evaluation of him or her, and even voters with more punitive attitudes toward collateral consequence policies support legislators who advance particular kinds of reform proposals.  These findings provide little evidence that any group of Americans would be mobilized to vote against a legislator who works to reform collateral consequence policies. We discuss the implications of these findings for American and comparative studies of the politics of punishment.

September 17, 2020 in Collateral consequences, Criminal Sentences Alternatives, Elections and sentencing issues in political debates, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Sunday, August 30, 2020

Can we somehow arrange for one of the upcoming Prez debates to be entirely about criminal justice issues?

Long-time readers know that, every four years, I cannot stop complaining that the Prez-election-season discourse and debates do not give nearly enough attention to a range of important criminal justices issues.  (Here are just a few example of this complaining in posts from 2008 and from 2012 and from 2016.)  For many reasons, it seems likely that the 2020 election season will have considerably more discussion of criminal justice issues from the candidates and in the media.  For example, this morning I saw this new NPR piece headlined "Fact Check: Trump's And Biden's Records On Criminal Justice," and here are excerpts:

For four nights, speakers at the Republican National Convention pilloried Democrat Joe Biden over his alleged weakness on crime and painted a dystopian future if he were to be elected in November. Biden and Democrats were "completely silent about the rioters and criminals spreading mayhem in Democrat-run cities," during their convention, President Trump charged on Thursday.  The previous evening, Vice President Pence warned, "The hard truth is you will not be safe in Joe Biden's America."... Pence claimed that Biden would "double down in the very policies that are leading to violence in American cites," to which Biden responded with a reminder that "right now ... we're in Donald Trump's America."...

Trump — who promised in his 2016 acceptance speech that "the crime and violence that today afflicts our nation will soon, and I mean very soon, come to an end" — has a spotty record when it comes to criminal justice reform.

His signature achievement on the issue, the widely touted First Step Act signed in 2018 and passed with bipartisan support in Congress, instituted sentencing reforms, including reducing harsh penalties for crack cocaine possession.  And on Friday, Trump pardoned Alice Johnson, a criminal justice reform advocate who delivered a powerful address at the Republican National Convention this week, and whose cause had been espoused by Kim Kardashian West. But some parts of the law have fallen short, activists say.

In June, following the unrest after George Floyd's killing, Trump signed an executive order that would provide federal grants to improve police training, and create a national database of police misconduct complaints. But it fell well short of what activists say is needed. Congress was unable to reconcile police reform proposals earlier this summer....

As Republicans were fond of noting during their convention, Joe Biden has a 47-year record as a U.S. senator and then vice president. During much of his Senate career, he was a member of and chairman of the Judiciary Committee, and in 1994 sponsored the Violent Crime Control and Law Enforcement Act.  It came in a different era, as Democrats set out to prove that they, too, were "tough on crime."  The bill included a 10-year ban on assault-style weapons as well as the Violence Against Women Act, which Biden points to today as a signal of his commitment to ending domestic violence.  But the act also included harsh penalties for drug-related crimes and money to construct new prisons, which critics said led to the mass incarceration of Black men. It also included funding to hire 100,000 additional police officers.

Now, Biden has backed away from some of the provisions in that bill, while at the same time rejecting calls by some in his party to defund police departments. He's proposed a ban on police chokeholds, a new federal police oversight commission, new national standards for when and how police use force, more mandatory data collection from local law enforcement and other steps.

There are three Presidential debates scheduled to begin in late September, and I am sure this season will bring at least a few questions on crime, police reform and racial justice issues.  But there are so many issues in the criminal justice arena that merit attention and that are likely to be of considerable interest to voters.  Clemency policies and practices, for example, could and should merit focused debate discussion.  So, too, should the operation of the death penalty, especially now that the Trump Administration has carried out five federal executions while the Biden policy task force calls for abolishing the death penalty "at the federal level, and incentiviz[ing] states to follow the federal government’s example."

And let's not forget marijuana and other drug policy issues.  At least six states in 2020 will be voting on state-level marijuana reforms, and other forms of reform concerning other drugs are also on various other ballot.  The Trump Administration has given some attention to the opioid crisis, and we ought to have both candidates discuss drug overdoses which still result in many, many more deaths of young people than has the coronovirus (NIDA reports over 4600 overdose deaths for persons aged 15-24 in 2018; the CDC reports under 400 COVID deaths for that same age group in 2020).

And the list of important topics for debate and discussion could go on and on: the operation and oversight of the federal Bureau of Prisons; reform of mandatory minimum sentencing provisions; voting rights for those with past convictions; the policies and practices of so-called progressive prosecutors; appointments to the US Sentencing Commission; barriers to effective reentry due to collateral consequences; the timeline and possible substance for a Second Step Act (and a Third Step Act).  The great new Council on Criminal Justice (CCJ) released a few months ago this big new report titled "Next Steps: An Agenda for Federal Action on Safety and Justice."   This report had 15 thoughtful recommendations for federal reform, each of which could justify extended debate discussion.

I will not belabor this point here, but in the coming months I likely will keep returning to the idea that an entire Prez debate should be devoted exclusively to discussing criminal justice issues.  The candidates' histories and well as their campaigns, not to mention the moment we are living through, justify more than just one or two questions on these topics.  As in years past, I expect to be disappointed on this front.  But, as in years past, I will keep using this platform to push what I think is a sound debate agenda for voters and the nation.

August 30, 2020 in Campaign 2020 and sentencing issues, Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (1)

Tuesday, August 25, 2020

"The RNC Can't Figure Out Where It Stands on Criminal Justice Reform"

The title of this post captures my own thinking about the somewhat confusing messages being delivered so far from the Republic convention (after the Democratic convention, sadly, barely discussed the issue).  The title of this post is also the headline of this effective new Reason piece by C.J. Ciaramella, which includes these passages:

Speakers at the first night of the 2020 Republican National Convention tried to navigate two competing messages on the criminal justice system.  One was that Joe Biden was an architect of mass incarceration and lock-em-up policies, which Donald Trump rightfully rolled back.  The other message was that only Republicans will stand up for police and the law.

Sen. Tim Scott (R–S.C.), the only black Republican in the Senate, assailed Joe Biden for his role in the 1994 crime bill and creating sentencing disparities between crack and powder cocaine. "Trump fixed many of the disparities that Biden created and made our system more fair and just for all Americans," Scott said, referring to the passage of the 2018 FIRST STEP Act.  Georgia Democrat Vernon Jones, venturing into hyperbole, claimed that Trump "ended once and for all the policy of incarceration of black people." (Although the legislation did result in the release of several thousand federal inmates, it did not abolish the federal prison system, Reason regrets to report.)

But at the same time that speakers were lauding Trump for criminal justice reforms that rolled back some of the laws that Biden helped pass, they were making constant references to riots, violent criminals being let loose on the street, and the threat of antifa mobs coming to your suburban neighborhood once the Marxist Democrats defund the police....

Backing the blue has been one of the centerpieces of Trump's "LAW AND ORDER!" reelection campaign.  Trump's campaign released a 2nd term agenda Sunday night, seeking to put to rest questions of what exactly, if anything, the president and Republicans stand for.  The list of about 50 bullet points includes five under the heading "Defend Our Police."

  • Fully Fund and Hire More Police and Law Enforcement Officers
  • Increase Criminal Penalties for Assaults on Law Enforcement Officers
  • Prosecute Drive-By Shootings as Acts of Domestic Terrorism
  • Bring Violent Extremist Groups Like ANTIFA to Justice
  • End Cashless Bail and Keep Dangerous Criminals Locked Up until Trial

The Republican Party decided to forgo releasing a party platform this year, instead simply saying it supports Trump's agenda.  So this thin gruel, along with speeches at this week's RNC, are what constitute the Republican positions on criminal justice....

Although it will probably come to nothing but more culture war fodder, the inclusion of a pro-cash bail item in Trump's 2nd term agenda is a clearer sign of the Trump administration's priorities on criminal justice than a bill signed two years ago.

August 25, 2020 in Campaign 2020 and sentencing issues, Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Monday, August 17, 2020

Should we expect to hear much on criminal justice reform during the Democratic National Convention?

This evening marks the start of the Democratic National Convention, and I am unsure if its virtual nature makes me more or less likely to watch a lot of it. But I am sure that I will be eager to hear whether and how criminal justice issues are discussed. The salience of criminal justice reform issues seems to be growing every quadrennial, and heightened concerns about both racial justice and gun violence would seem to ensure that both parties will be discussing crime and punishment during their nominating events.

Here is a partial round-up of recent pieces I have seen about the Democratic ticket and criminal justice issues as we enter the final phase of the 2020 campaign:

Some on many prior related post:

August 17, 2020 in Campaign 2020 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Friday, August 14, 2020

Republican Georgia legislator looking to use fiscal argument to bolster death penalty abolition

In this post around the start of the pandemic, I wondered aloud "Might COVID-19 ultimately bring an end to the death penalty in the United States?".  One point I made in that post was that, amidst economic difficulties, the death penalty might seem an even more problematic use of limited government time and resources.  As I put it in that post: "I think there will be very strong arguments that this punishment is a kind of 'legal luxury' that we really cannot and ought not invest resources in while we try to rebuild after COVID-19."  

I returned to that post this morning upon seeing this new local press piece from Georgia headlined "Georgia GOP lawmaker makes budget argument to abolish death penalty."  Here are excerpts:

A Georgia Republican says he thinks the state House of Representatives is just a dozen votes shy of advancing a bill that would abolish the death penalty. Rep. Brett Harrell of Snellville said Thursday that he thinks highlighting the cost of capital punishment may help win over the support needed, at least in the one chamber.  Harrell, who chairs the influential House Ways and Means Committee, said he intends to push for the funding needed to pay for an analysis of how much Georgia spends to execute people.

“I think this conservative concerns about the death penalty focus is important and to focus on those fiscal costs will be important to us to gain those last few votes necessary to move the issue forward in Georgia,” he said.

The Gwinnett County lawmaker took part in a virtual discussion Thursday that was organized by Conservatives Concerned about the Death Penalty, a national group that argues capital punishment is inconsistent with conservative principles.  He appeared along with two Republicans from Ohio and Wyoming. Hannah Cox, the group’s senior national manager, called the death penalty a “failed big government program that fails to measure up to our values of limiting government, adhering to fiscal responsibility and protecting the sanctity of human life.”  She said most of the costs stem from the intensive trials required for a capital murder case – and not, as most assume, the lengthy appellate process.

She said the squeeze on state budgets due to the COVID-19 pandemic has brought renewed scrutiny to the cost.  Georgia just recently cut 10% from its budget, partly because of declining revenues due to the viral outbreak.

Harrell sponsored a bipartisan bill last year that would have ended the death penalty in Georgia, requiring instead life in prison without parole for those sitting on death row.  The bill never cleared a committee.  Georgia is among the 25 states that have the death penalty.

Now, he’s sharpening his fiscal line of attack, calling the death penalty an “incredibly expensive proposition.” He pointed to an example in the 1990s that left local officials jailed for a day in Lincoln County when they refused to foot the bill for a second capital murder trial after the courts overturned a death sentence. At the time, the case had already cost the rural county about $100,000; the county’s entire budget was $2.2 million.

“Evidence suggests – study after study – that it is not an actual deterrent to crime and we have alternatives, such as life without parole,” Harrell said. “As someone who is fiscally conservative and prefers a small government consistent with efficient implementation of government, the death penalty fails on all those measures.”

He also noted that Georgia has exonerated six people since the death penalty was reinstated in 1976. “Someone who is also a social conservative and someone who is pro-life should also see the death penalty as very problematic in that the likelihood is very great that innocent have been executed as well,” Harrell said.

Because many of my criticisms of many aspects of the criminal justice system are situated in the concern that it does not involve "efficient implementation of government," I am always drawn to these kinds of arguments.  And, as mentioned before, I think the misused resources arguments against the death penalty are especially strong during a time of national crisis when monies would seem better spent seeking to help those in need rather than in trying to secure and preserve a death sentence that likely never will be carried out.

August 14, 2020 in Death Penalty Reforms, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (1)

Tuesday, July 28, 2020

Notable criminal justice reform discussion in draft 2020 Democratic Party Platform

As reported in this NPR piece, "Democrats met remotely Monday afternoon to approve a lengthy policy platform that seeks to balance the interests of the Democratic Party's more moderate and liberal factions."  Here is a bit more about the meeting and its product:

The virtual meeting came three weeks ahead of what will be one of the strangest party conventions in U.S. history: No delegates and few Democratic dignitaries will travel to Milwaukee to nominate former Vice President Joe Biden to be the party's standard-bearer. Instead, the convention will be held mostly remotely, with only Biden and a few other speakers appearing from Milwaukee.

The draft platform, released last week, draws heavily from a report issued this month by joint task forces organized by Biden and his onetime campaign rival, Vermont Sen. Bernie Sanders. It tries to bridge the gap between Sanders' progressive politics and Biden's more moderate approach to governing.

The criminal justice discussion and recommendations, which appear at pp. 32 to 35 of this 80-page draft DNC platform, includes a number of reform proposals that track ideas and language emerging from the 110-page Biden-Sanders Unity Task Force recommendations discussed here.  Here are some sections that should be of special interest to sentencing fans:

Democrats know we can end the era of mass incarceration and dramatically reduce the number of Americans held in jails and prisons while continuing to reduce crime rates, which have fallen steadily from their peak nearly three decades ago....

A growing number of states have recognized it is unjust — and unjustifiable — to punish children and teenagers as harshly as adults. We believe that if you aren’t old enough to drink, you aren’t old enough to be sentenced to life without parole. The federal government will incentivize states to stop incarcerating kids, and develop community-based alternatives to prison and detention centers for youth and invest in after-school programs, community centers, and summer jobs to provide opportunities for young people at risk....

It is past time to end the failed “War on Drugs,” which has imprisoned millions of Americans — disproportionately people of color — and hasn’t been effective in reducing drug use. Democrats support policies that will reorient our public safety approach toward prevention, and away from over-policing — including by making evidence-based investments in jobs, housing, education, and the arts that will make our nation fairer, freer, and more prosperous....

Substance use disorders are diseases, not crimes.  Democrats believe no one should be in prison solely because they use drugs.  Democrats will decriminalize marijuana use and reschedule it through executive action on the federal level.  We will support legalization of medical marijuana, and believe states should be able to make their own decisions about recreational use.  The Justice Department should not launch federal prosecutions of conduct that is legal at the state level.  All past criminal convictions for cannabis use should be automatically expunged.  And rather than involving the criminal justice system, Democrats support increased use of drug courts, harm reduction interventions, and treatment diversion programs for those struggling with substance use disorders....

Sentencing decisions should be based on the facts of each case, including the severity of the offense and individuals’ circumstances. Democrats support allowing judges to determine appropriate sentences, which is why we will fight to repeal federal mandatory minimums, incentivize states to do the same, and make all sentencing reductions retroactive so judges can reconsider past cases where their hands were tied.  We believe it is long past time to end the federal sentencing disparity between crack and powdered cocaine, which has contributed to the disproportionate imprisonment of people of color.  And Democrats continue to support abolishing the death penalty....

Democrats are proud that the Obama-Biden Administration commuted the sentences of more than 1,700 people serving unjust sentences following thorough review of their individual cases, and we support the continued use of the President’s clemency powers to secure the release of those serving unduly long sentences.  We denounce President Trump’s inappropriate use of clemency to help his friends and political cronies avoid justice.  We also support establishing an independent clemency board to ensure an appropriate, effective process for using clemency, especially to address systemic racism and other priorities.

Democrats support ending the use of private prisons and private detention centers, and will take steps to eliminate profiteering from diversion programs, commercial bail, electronic monitoring, prison commissaries, and reentry and treatment programs.  Democrats believe prisoners should have a meaningful opportunity to challenge wrongful convictions and unconstitutional conditions in prisons. We also believe that too many of our jails and prisons subject people to inhumane treatment, and will work to end practices like solitary confinement for adults and juveniles and ban the use of restraints on pregnant federal inmates.  Incarcerated people must not be denied access to vital medical care or unnecessarily exposed to disease, as they have been during the COVID-19 pandemic.  And Democrats will pursue a holistic approach to rehabilitation, increasing support for programs that provide educational opportunities, including pursuing college degrees, for those in the criminal justice system, both in prison and upon release.

Democrats believe in redemption.  We must deepen our commitment to helping those who have served their time re-enter society, earn a good living, and participate in our democracy as the full citizens they are.  We will aim to ensure access to transitional housing for returning citizens, support expanded access to mental health and substance use treatment, and will stop the practice of reincarcerating people for technical violations of probation or parole. Democrats support federal and state efforts to “ban the box” and will make it easier for returning citizens to access work opportunities through the Job Corps.  The formerly incarcerated should not be blocked from exercising their voting rights or accessing public services, including Pell Grants and nutrition assistance, available to other free citizens of the United States.  Continuing to punish a person after they have rejoined the community is both cruel and counterproductive.

There are lots of consequential (and politically and practically challenging) reforms being proposed here, ranging from pledging to try to do away with the death penalty and all mandatory minimum sentencing provisions to significant marijuana reforms to the creation of a clemency board to making "all sentencing reductions retroactive."  If the Democrats could achieve even a portion of what's called for in this document in the coming years, it would make for a truly historic period in federal criminal justice reform.

And yet, though I like a lot of what I see here, I am still sad some of the most interesting aspects of the Biden-Sanders Unity Task Force recommendations being left out.  Specifically, that document called, inter alia, for "issu[ing] new federal guidelines that advise prosecutors not to overcharge cases in order to coerce plea deals, or to pursue harsher sentences in order to penalize citizens for exercising their right to a jury trial"; for "encourag[ing] states to invest tax revenue from legal marijuana industries to repair damage to Black and brown communities hit hardest by incarceration"; for "task[ing] the U.S. Sentencing Commission with conducting a comprehensive review of existing sentencing guidelines and statutory sentencing ranges, with the goal of generating legislative recommendations, promulgating new guidelines, and issuing formal guidance to reduce unreasonably long sentences and promote rehabilitation"; for "creat[ing] a U.S. Reentry Commission to conduct a comprehensive review of barriers to reentry, with the goal of taking executive action and proposing legislation to remove as many as possible." 

A number of progressives were concerned that the Biden-Sanders Unity Task Force recommendations were too moderate on a number of matters, and it seems that this draft 2020 Democratic Party Platform is reining in the reform vision and ambition still further at least in the criminal justice arena.  That said, both the language and the proposals of this document are far more far-reaching and reform-minded than any comparable document in recent decades.  Though not as bold as some might hope, the fundamental boldness of this draft platform should not be underappreciated.

Prior related post:

July 28, 2020 in Campaign 2020 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Wednesday, July 22, 2020

"How To Assess Whether Your District Attorney Is A Bona Fide Progressive Prosecutor"

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

This article serves as a surgeon general’s warning that not all progressive prosecutors are alike and provides a “weighted constellation” framework that advocates can use to assess which district attorneys deserve the progressive name. Although the justice system’s structural landmines inhibit district attorneys’ efforts to substitute law-and-order policies with more forward-thinking approaches, local prosecutors still wield enormous power; they can reduce incarceration and more equitably enforce the law.  Participants in local politics should elect and support district attorneys who effect authentically progressive policies.  Because not all seemingly progressive district attorneys are in fact pursuing meaningful criminal justice reform, this article aims to help advocates separate the bona fide progressives from those in sheep’s clothing. Those keen to assess their district attorney can use this article’s proposed analytical framework, which accounts for the totality of each district attorney’s circumstances but draws clear lines between progressive and non-progressive prosecution practices.

This article presents fourteen buckets of prosecutorial policies that further a more dignified and fair American justice system. Advocates should use these fourteen buckets to evaluate a district attorney and — depending on the history of the prosecutor’s office and the local justice system — assign weights to each of the metrics.  Advocates should then examine the district attorney’s performance for each metric, including whether the prosecutor falls outside the metric’s outer bounds, the distance between the prosecutor’s policies and the theoretically most progressive iteration of the metric, and the prosecutor’s policies compared with their peers’ policies.  To aid with the last analytical step, this article provides a comparative analysis of twenty-one prosecutors’ performance against a subset of seven of the metrics — the death penalty, bail reform, decarceration and the New Jim Crow, non-prosecution and diversion, wrongful convictions, police accountability, and prosecutorial accountability.

July 22, 2020 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Tuesday, July 14, 2020

Highlighting the link between crime and criminal justice reform efforts

Charles Lane has this new Washington Post commentary that serves as a reminder of the reality that criminal justice reformers always need to keep an eye on crime trends.  The headline captures the pieces themes: "The declining violent crime rate has been a win for criminal justice reform. A reversal would be a loss."  Here are excerpts:

Since 1994, Americans have grown less hawkish on law enforcement: Support for “tough” measures — such as the death penalty or mandatory minimums — has fallen to levels not seen in almost 50 years, according to an innovative index of “punitive sentiment” first published in 2013 by political scientist Mark D. Ramirez of Arizona State University.

For several years, in fact, U.S. public opinion has been receptive to new approaches based less on policing and incarceration, and more on social services and rehabilitation.  In 2016, only 45 percent of Americans considered crime policy “not tough enough,” according to Gallup.  Public reaction to the death of George Floyd in Minneapolis police custody in May simply accelerated the preexisting trend.

And why is the public less punitive? This brings us to the second lesson of recent history: Punitive sentiment tends to move in tandem with the actual level of crime.  Public support for harsh measures rose with violent crime rates in the 1970s and 1980s, then came down as the violent crime rate declined over the past quarter-century.

Ramirez identifies political leadership as a key variable: Punitive sentiment grew in the ’70s and ’80s as part of a broader racial backlash, including demonization of alleged black offenders, that white conservative politicians deliberately stoked.

Also, the public generally tends to believe the worst about crime, usually telling pollsters that it is growing even when official data show the opposite....

We may be experiencing a real-world test of these dynamics right now, in the sense that President Trump came to office railing against crime as if nothing had changed since the 1980s, when he took out newspaper ads decrying “roving bands of wild criminals” and calling for society to “unshackle” cops “from the constant chant of ‘police brutality.’ ”

Yet punitive sentiment kept on moving down during Trump’s presidency, along with the violent crime rate. (Ramirez’s 2013 article used opinion poll data collected between 1951 and 2006.  In an email, he supplied an update showing trends through 2019.) In backhanded acknowledgment of this, Trump leavens his calls for shooting rioters and jailing statue-topplers with boasting about his signature on the First Step Act, which reformed federal sentencing and modestly reduced incarceration.

An important point for reform is to deny Trump and other opponents any basis — either in rhetoric or in reality — for reigniting fear of crime.... It is also why the recent upsurge in shooting deaths in cities such as Chicago, Atlanta and St. Louis is such an urgent issue, in human terms but also politically. Trump is already trying to exploit it.

The past two-plus decades of declining violent crime was one of the best things that ever happened for the cause of criminal justice reform. A reversal of that progress could be one of the worst.

July 14, 2020 in Elections and sentencing issues in political debates, National and State Crime Data | Permalink | Comments (0)

Wednesday, July 08, 2020

Notable criminal justice reform recommendations from Biden-Sanders Unity Task Force

As reported in this NPR piece, a "joint effort by former Vice President Joe Biden and Vermont Sen. Bernie Sanders to unify Democrats around Biden's candidacy has produced a 110-page policy wish list to recommend to the party's presumptive presidential nominee."  Here is a bit more context:

The policy document [available here] — the work of six joint task forces appointed by Biden and Sanders in May — would give the former vice president a road map to that goal. "The goals of the task force were to move the Biden campaign into as progressive a direction as possible, and I think we did that," Sanders told NPR. "On issue after issue, whether it was education, the economy, health care, climate, immigration, criminal justice, I think there was significant movement on the part of the Biden campaign."...

Biden's campaign has yet to publicly commit to doing anything other than "reviewing" the recommendations. If he adopts them, the recommendations would shift Biden to the left, but they would not completely transform the platform he's been running on for more than a year.

The criminal justice discussion and recommendations, which are lengthy and appear at pp. 6-10 and 56-62 of this huge document, cannot be easily summarized. But these prosecutorial, sentencing and rentry reform recommendations are among the ones I find most notable and salutary:

Federal Prosecutorial Guidelines: Immediately withdraw the Trump Administration’s guidance advising prosecutors to pursue the harshest penalties possible, even for low-level offenses. Reinstate the Obama-Biden Administration's Smart on Crime Initiative, and issue new federal guidelines that advise prosecutors not to overcharge cases in order to coerce plea deals, or to pursue harsher sentences in order to penalize citizens for exercising their right to a jury trial....

Support Progressive Prosecutors: Support new state prosecutors through funding and technical support in their efforts to ensure public safety while reducing incarceration....

Marijuana: Decriminalize marijuana use and legalize marijuana for medical purposes at the federal level.  Allow states to make their own decisions about legalizing recreational use. Automatically expunge all past marijuana convictions for use and possession.  Lift budget rider blocking DC from taxing and regulating legal marijuana and remove marijuana use from the list of deportable offenses.  Encourage states to invest tax revenue from legal marijuana industries to repair damage to Black and brown communities hit hardest by incarceration.

Support Diversion Programs: Reduce criminal penalties for drug possession and support increased use of drug courts and treatment diversion programs instead of incarceration for those struggling with substance use disorders.

Death Penalty: Abolish the death penalty at the federal level, and incentivize states to follow the federal government’s example.

Mandatory Minimums: Empower judges to determine appropriate sentences, by fighting to repeal mandatory minimums at the federal level and give states incentives to repeal their mandatory minimums.

Retroactive Reforms: Make all sentencing reforms retroactive to allow for individualized resentencing.

Crack/Cocaine Sentencing Disparity: End the federal crack and powder cocaine disparity in sentences, and make the change retroactive.

Clemency Board: To avoid possible institutional bias and ensure people have a fair and independent evaluation, establish an independent clemency board, composed and staffed by people with diverse backgrounds.  Expand Obama-era criteria for proactive clemency initiative to address individuals serving excess sentences.

Compassionate Release: Reinvigorate compassionate release so that the sick and elderly are transitioned out of incarceration so long as they do not pose a public safety risk....

Sentence Length and Early Release: Task the U.S. Sentencing Commission with conducting a comprehensive review of existing sentencing guidelines and statutory sentencing ranges, with the goal of generating legislative recommendations, promulgating new guidelines, and issuing formal guidance to reduce unreasonably long sentences and promote rehabilitation.  The Commission should make recommendations regarding early release options, including expanding good time credits, reinstating federal parole, and creating a “second look” mechanism permitting federal judges to reevaluate sentences after a certain amount of time served.  Any such options should use a systematic, evidence-based approach that reduces risks to public safety, prevents racially disparate implementation, reduces the total number of people under federal custody and supervision, and limits the duration and conditions of supervision....

Removing barriers to reentry: Remove restrictions on access to public housing, employment, occupational licenses, driver’s licenses, and public benefits.  Create a U.S. Reentry Commission to conduct a comprehensive review of barriers to reentry, with the goal of taking executive action and proposing legislation to remove as many as possible.  Include recommendations for reforming parole and probation, including preventing reincarceration for technical violations, as well as expungement and sealing of convictions.

July 8, 2020 in Campaign 2020 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (3)

Tuesday, July 07, 2020

New BREATHE Act proposes, among lots and lots of reforms, eliminating federal mandatory minimums and life sentences

As reported in this new AP piece, headlined "Movement for Black Lives seeks sweeping legislative changes," a big new federal criminal justice reform bill includes some big new ideas for sentencing reform. Here are some of the details:

Proposed federal legislation that would radically transform the nation’s criminal justice system through such changes as eliminating agencies like the Drug Enforcement Administration and the use of surveillance technology is set to be unveiled Tuesday by the Movement for Black Lives.

Dubbed the BREATHE Act, the legislation is the culmination of a project led by the policy table of the Movement for Black Lives, a coalition of more than 150 organizations.  It comes at an unprecedented moment of national reckoning around police brutality and systemic racism that has spurred global protests and cries for change after several high-profile killings of Black Americans, including George Floyd....

The legislation was first shared with The Associated Press, and is scheduled to be revealed in a Tuesday press conference that is slated to include an appearance by singer John Legend.  The proposed changes are sweeping and likely to receive robust pushback from lawmakers who perceive the legislation as too radical.

University of Michigan professor and criminal justice expert Heather Ann Thompson acknowledged the uphill battle, but noted that that the legislation is being introduced at a highly opportune time.  “I think those programs that they’re suggesting eliminating only look radical if we really ignore the fact that there has been tremendous pressure to meaningfully reform this criminal justice system,” said Thompson, author of “Blood in the Water.”...

No members of Congress have yet said they plan to introduce the bill, but it has won early support among some of the more progressive lawmakers, including Ayanna Pressley and Rashida Tlaib, who also are due to participate in the news conference.

The bill is broken into four sections, the first of which specifically would divest federal resources from incarceration and policing.  It is largely aimed at federal reforms because Congress can more easily regulate federal institutions and policy, as opposed to state institutions or private prison facilities.  The other sections lay out a detailed plan to achieve an equitable future, calling for sweeping changes that would eliminate federal programs and agencies “used to finance and expand” the U.S. criminal-legal system.

The elimination would target agencies such as the Immigration and Customs Enforcement, which has come under fire in recent years for its aggressive deportation efforts, and lesser-known programs such as Department of Defense 1033, which allows local law enforcement agencies to obtain excess military equipment.  The act, which also seeks to reduce the Department of Defense budget, would institute changes to the policing, pretrial detention, sentencing and prosecution practices...

It would establish the Neighborhood Demilitarization Program, which would collect and destroy all equipment like military-grade armored vehicles and weapons in the hands of local, state, and federal law enforcement agencies by 2022.  Federal law enforcement also would be unable to use facial-recognition technology, which many communities across the nation already have banned, along with drones and forms of electronic surveillance such as ankle-monitoring.

The bill would end life sentences, abolish all mandatory minimum sentencing laws and create a “time bound plan” to close all federal prisons and immigration detention centers....

The bill would direct Congress to establish a Community Public Safety Office that would conduct research on non-punitive, public safety-focused interventions that would be funded through new grants, and programs like a “Free Them All” Matching Grant Program offering a 50% federal match for projected savings when states and communities close detention facilities, local jails, and state or youth prisons.

According to the document, it also would bring about numerous changes for parents and children, such as removing police, school resource officers and other armed security and metal detectors from schools.

I suspect that there is little chance that this entire piece of legislation advances in Congress anytime soon, but there may well be a chance that some pieces of this big bill could get incorporated into other proposals. Even if just a statement of aspirations, this new bill is noteworthy and could prove to be quite significant.

July 7, 2020 in Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Race, Class, and Gender, Who Sentences | Permalink | Comments (1)

Wednesday, July 01, 2020

Was Prez Trump's real political mistake not going bigger on criminal justice reform?

The question in the title of this post is prompted by this Axios piece headlined "Scoop: Trump regrets Kushner advice."  Here are some excerpts:

President Trump has told people in recent days that he regrets following some of son-in-law and senior adviser Jared Kushner's political advice — including supporting criminal justice reform — and will stick closer to his own instincts, three people with direct knowledge of the president's thinking tell Axios.

Behind the scenes: One person who spoke with the president interpreted his thinking this way: "No more of Jared's woke s***." Another said Trump has indicated that following Kushner's advice has harmed him politically.

Why it matters: This could be the final straw for federal police reform legislation this year, and it could usher in even more incendiary campaign tactics between now and November.

Details: The sources said the president has resolved to stick to his instincts and jettison any policies that go against them, including ambitious police reform.

  • Trump dipped his toe into police reform under pressure after a Minneapolis police officer killed George Floyd — with an executive order that activists considered toothless  but he will likely go no further to restrain law enforcement officers, according to senior administration officials.
  • Trump has made clear he wants to support law enforcement unequivocally, and he won't do anything that could be seen as undercutting police....
  • In response to this reporting, White House press secretary Kayleigh McEnany said in a statement, "President Trump is very proud of the historic work that he's done to benefit all communities.  The First Step Act made historic strides toward rectifying racial disparities in sentencing while his executive order to secure America's streets works with our nation's heroic police officers to ensure we have safe policing and safe communities."...

Between the lines: Trump never really wanted criminal justice reform, according to people who have discussed the subject with him privately.  He's told them he only supported it because Kushner asked him to.  Though he has repeatedly trumpeted it as a politically useful policy at times.

  • Trump now says privately it was misguided to pursue this policy, undercutting his instincts, and that he probably won't win any more African American support because of it.
  • "He truly believes there is a silent majority out there that's going to come out in droves in November," said a source who's talked to the president in recent days.

Anyone who has followed Prez Trump through the years should not be surprised by reporting that he has never been a real fan of criminal justice reform or that he is eager to praise and promote the police.  But Prez Trump did play a key role in getting the FIRST STEP Act enacted back in 2018 and it has seemed his campaign had wanted to make this fact a significant talking point in the 2020 political season.  But, in light of Prez Trump's poor recent poll numbers and his disaffinity for bold racial justice efforts, this story suggests he may be giving up on the prospect of securing any political advantage from criminal justice reform efforts.

But, as the question in the title of this post is meant to suggest, I think Prez Trump may be getting little political credit for criminal justice reform because he failed to really go big and because his frequent "tough" talk eclipses his reform efforts.  Had Prez Trump pushed dramatic and historic reforms — by, say, advocating for federal marijuana reforms and pushing for a federal expungement statute and creating a clemency council in the White House — he might well have burnished a real reputation as a real reformer.  And if Prez Trump stressed how these kinds of reforms advanced racial justice and racial equity in our criminal justice system, I really think he could have secured significant political benefits from being much more progressive on these issues than Joe Biden has historically been.

July 1, 2020 in Campaign 2020 and sentencing issues, Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Tuesday, June 23, 2020

Intriguing (and discouraging?) criminal justice elements in new polling mostly about policing reform

06_23_2020_Chart3This new release, headlined "Widespread Desire for Policing and Criminal Justice Reform," reports on a new Associated Press-NORC Center for Public Affairs Research poll that is mostly about policing reforms but includes a few notable criminal justice questions.  Here are excerpts about the poll, with my emphasis on its criminal justice elements:

Large majorities of the public support the implementation of policies aimed at reducing police violence, but few back a reduction in the funding for law enforcement.  Most Americans say the country’s criminal justice is in need of serious transformation, and police officers who kill or injure civilians are treated too leniently by the courts.

In the national AP-NORC survey, which was conducted as protests spread across the country in response to the killing of George Floyd, a handcuffed Black man who died after a white police officer pressed his knee into Floyd’s neck for several minutes, nearly half regard police violence to be very serious problem.

The public agrees that several reforms could help prevent police violence against civilians.  Americans, regardless of race, strongly support policies that include body cameras, holding police accountable for excessive force and racially biased policing, and creating criteria for the use of force.  There is little support for reducing funding for law enforcement.

There is majority support in both parties for a number of reforms.  However, Democrats are more likely than independents and Republicans to support all the guidelines to prevent police violence included in the survey.  The biggest partisan gaps arise when it comes to limiting the use of military equipment, reducing funding for agencies, and limiting the criminal justice system’s focus on policing and prosecuting low level offenses.

More than two-thirds of the public say that criminal justice system needs either major changes or a complete overhaul.  Black Americans are more likely than white Americans to say the system needs a complete transformation.  Views differ based on partisanship with 44% of Democrats saying the system needs a complete change while just 27% of independents, and 12% of Republicans say the same.

Most Americans — including a majority of white and Black adults — believe that police officers who cause injury or death in the course of their job are treated too leniently by the justice system.  In 2015, just 41% of all adults and 32% of white Americans said the same.

Democrats are almost twice as likely as Republicans to say police are treated too leniently by the justice system (85% vs. 43%).

The nationwide poll was conducted June 11-15, 2020 using the AmeriSpeak® Panel, the probability-based panel of NORC at the University of Chicago. Online and telephone interviews using landlines and cell phones were conducted with 1,310 adults. The margin of sampling error is +/-3.7 percentage points.  In addition, Black adults were sampled at a higher rate than their proportion of the population for reasons of analysis. The overall margin of sampling error for the 377 completed interviews with Black respondents is +/- 5.3 percentage points.

I suppose I should take a "glass-half-full" view on this poll and be encouraged that so many Americans seem to be in favor of policing and criminal justice reforms.  But I cannot help but see a lot of "glass-half-empty" elements such as the fact that roughly two-thirds of Republicans and Independents oppose "reducing the criminal justice system’s focus on policing and prosecuting low level offenses."  In the wake of all the protests about lock-down orders and their enforcement, not to mention significant support for marijuana reforms, I would have expected and hoped support for this kind of reform to be stronger.  Similarly, with all of Prez Trump's attacks on the FBI and high-profile prosecutions of his various associates, I would have hoped for a larger number of Republicans to say our criminal justice system needs a complete overhaul.

Long story short, I think anyone and everyone advocating for any kinds of criminal justice reforms must not lose sight of the power of status quo biases, especially for those who are powerful and who do not bear the brunt of criminal justice biases.  This poll suggests we may have a unique opportunity for unique reforms in the coming weeks and months and years, but it also should be a reminder that reforms are always an uphill battle.

June 23, 2020 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)