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)

Wednesday, June 17, 2020

Progressive groups demand that Joe Biden "put forward a transformative and comprehensive policing and criminal justice platform"

As reported in this Hill piece, dozens of "liberal groups have signed on to a letter warning presumptive Democratic presidential nominee Joe Biden that he could lose the November election to President Trump if he doesn’t adopt more progressive policing policies." Here is more:

The letter, which is signed by leading national progressive groups, including the Working Families Party, Our Revolution and Black Voters Matter, urges Biden to adopt a 21-page policy proposal released by The Movement for Black Lives to promote reducing incarceration and scaling back police forces across the country.

The groups are also asking Biden to drop his recent proposal to add $300 million in funding for the Community Oriented Policing Services (COPS) program, which would hire and train additional police officers to patrol within the communities where they live.

“We make these demands first and foremost because we seek justice for George Floyd and Breonna Taylor — as well as all the other Black lives lost — and policies like these are what justice looks like in practice,” the letter says. “But we also make them with an eye toward the November election. … You cannot win the election without the enthusiastic support of Black voters, and how you act in this moment of crisis will play a big role in determining how Black voters — and all voters concerned with racial justice — respond to your candidacy. A ‘return to normalcy’ will not suffice,” they wrote.

The progressive groups were scathing in their assessment of Biden’s record on criminal justice issues. “In the course of your political career, you have designed and endorsed policies that have significantly exacerbated these problems,” the letter states. “As a Senator, you not only supported, but in many cases authored and championed laws that expanded mass incarceration, increased police powers, and exacerbated racial disparities in surveillance and sentencing. These laws … are a part of the history that has led us to this moment, and their ongoing fallout has contributed to the outpourings of grief and anger we are seeing today,” they wrote.

The full letter, which is datad June 11, is available at this link

A few related posts:

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

Thursday, June 11, 2020

"A legislative guide for winnable, high-impact criminal justice reforms"

The title of this post is the title of this new detailed briefing from the Prison Policy Initiative. Here is the start and table of contents (with links):

Given the public’s increasing demands for real change to the criminal justice system, we’ve updated and expanded our annual guide for state legislators to reforms that we think are ripe for victory.  We’ve curated this list to offer policymakers and advocates straightforward solutions that would have the greatest impacts without further investments in the carceral system.  We have focused especially on those reforms that would reduce the number of people needlessly confined in prisons and jails — a systemic problem made even more urgent by the COVID-19 pandemic.

This briefing is not intended to be a comprehensive platform, but rather to address a surprising problem faced by legislators: Each state’s criminal justice system varies so much that it can be difficult to apply lessons from other states to the same problem in one’s own.  The laws and procedures are all different, each state collects different data, and often the same words are used to mean very different things in different states, so it’s important to figure out which problems are a priority in your state and which lessons from elsewhere are most useful.  For that reason, each item here includes links to more state-level information, the text of model legislation, and/or detailed guidance on crafting a remedy.

Readers should also note that we made a conscious choice to not include critical reforms that are unique to just a few states, nor important reforms for which we don’t yet have enough useful resources that would make sense in most states.  But this guide grows and evolves each year, so we welcome ideas and resources from other state legislators and advocates.

Table of Contents

End unnecessary jail detention for people awaiting trial and for low-level offenses (2 recommendations)

Shorten excessive prison sentences and improve release processes (2 recommendations)

Sentence fewer people to incarceration and make sentences shorter (3 recommendations)

Change the financial incentives that fuel punitive justice system responses (2 recommendations)

Stop probation and parole systems from fueling incarceration (4 recommendations)

Keep criminal justice, juvenile justice, and immigration processes separate (2 recommendations)

Give all communities equal voice in how our justice system works (2 recommendations)

June 11, 2020 in Elections and sentencing issues in political debates, Recommended reading, Who Sentences | Permalink | Comments (2)

Wednesday, June 10, 2020

A few interesting accounts of Joe Biden on criminal justice

In the criminal justice arena, I have come to think of Joe Biden as a Zelig-like figure: out of a desire to fit in politically, Biden seems to be inclined to take on the criminal justice character of the era. For that reason, I expect he would prove to be somewhat reform-minded (though still pretty mainstream) were he to become President in 2021.  My framing and thinking here is reinforced by a number of new press articles on Biden and criminal justice:

From the AP, "Joe Biden says questions about 1994 crime bill are ‘legitimate’"

From CNN, "Biden repeatedly pushed bill in Senate that critics said would have made investigating police officers for misconduct more difficult"

From NPR, "Joe Biden Has Come A Long Way On Criminal Justice Reform. Progressives Want More"

From Slate, "The Protests Haven’t Changed Joe Biden Yet. They Will Change the Democratic Party."

While there are a lot of interesting elements to these pieces, I especially liked this portion of the NPR piece:

Chiraag Bains, who worked in the Department of Justice's Civil Rights Division during the Obama administration [and who] Bernie Sanders tapped to co-chair the criminal justice reform committee the Sanders and Biden campaigns set up at the end of their primary contest [wants more].  "It's not enough to speak to people's pain and utter the right words," said Bains, who emphasized he was speaking for himself, not the task force.

Bains said Biden's statements and speeches have been the right start and have been well-received — especially when contrasted to the president. "But we need a specific agenda and it needs to be bold," he said. "I do see that the vice president is moving that direction. I just think we need to do more."  Bains wants Biden to expand on already-announced proposals on ending mandatory-minimum prison sentences and ramping up the use of clemency.  He's also pushing for the restoration of federal parole and the legalization of marijuana, among other policies.

More clemency, eliminate mandatory minimums, restore federal parole and legalize marijuana is a pretty good accounting of my priority wish list for federal criminal justice reform.  If Biden were to champion all these reforms in the months ahead, I would need a better adjective for him than Zelig-like.

June 10, 2020 in Campaign 2020 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Thursday, May 07, 2020

"Voting in Jails"

The title of this post is the title of this notable new report by Nicole Porter at The Sentencing Project. Here is the report's overview:

Felony disenfranchisement laws bar millions of Americans from voting due to their felony conviction.  Among those excluded are persons in prison, those serving felony probation or parole, and, in 11 states, some or all persons who have completed their sentence.  While these disenfranchisement laws have been closely documented for years by advocacy organizations, academics, and lawmakers, the de facto disenfranchisement of people legally eligible to vote in jails has received less attention.

In local jails the vast majority of persons are eligible to vote because they are not currently serving a sentence for a felony conviction.  Generally, persons are incarcerated in jail pretrial, sentenced to misdemeanor offenses, or are sentenced and awaiting transfer to state prison.  Of the 745,0001 individuals incarcerated in jail as of 2017 nearly two-thirds (64.7%), or 482,000, were being held pretrial because they had not been able to post bail.  Of the 263,000 who were serving a sentence, the vast majority had been convicted of a misdemeanor offense that does not result in disenfranchisement.

Despite the fact that most persons detained in jail are eligible to vote, very few actually do.  Jail administrators often lack knowledge about voting laws, and bureaucratic obstacles to establishing a voting process within institutions contribute significantly to limited voter participation. Indeed, acquiring voter registration forms or an absentee ballot while incarcerated is challenging when someone cannot use the internet or easily contact the Board of Elections in their community.  In addition, many persons in jail do not know they maintain the right to vote while incarcerated, and there are few programs to guarantee voting access.

Problems with voting in jail disproportionately impact communities of color since almost half (48%) of persons in jail nationally are African American or Latino.  Other racial groups, including Native Americans and Asians, comprise about 2% of the jail population, or 13,000 persons as of 2017.

In recent years, some jurisdictions have adopted policies and practices to ensure voting access for persons incarcerated in local jails because of initiatives developed by jail leadership and advocacy organizations.  This report examines six programs designed to expand voting access for eligible incarcerated citizens.  The success and expansion of these efforts will improve democracy.

May 7, 2020 in Campaign 2020 and sentencing issues, Collateral consequences, Elections and sentencing issues in political debates, Prisons and prisoners | Permalink | Comments (0)

Monday, March 30, 2020

Polls showing considerable public support for decarceration in response to COVID-19 crisis

I have seen two distinct reports of distinct polls showing public support for reducing incarceration levels in response to the coronavirus crisis:

From the ACLU, "ACLU Poll Shows Wide-Ranging Support For Releasing Vulnerable People From Jails And Prisons"

The American Civil Liberties Union released today a new poll from Bully Pulpit Interactive that demonstrates far-ranging, bipartisan support for releasing people from prisons and jails as part of the COVID-19 public health response. According to the poll:

  • 63 percent of registered voters support releasing people from jails and prisons to stop the spread of COVID-19
  • 72 percent of voters support clemency for elderly incarcerated people in the midst of this pandemic

From The Justice Collaborative, "Poll Shows Strong Cross-Ideological Support for Dramatically Reducing Jail and Prison Populations to Slow the Spread of Coronavirus."   Executive Summary from this report

  • Public health experts agree that jails and prisons pose special risks to the spread of the coronavirus.  These risks extend to the incarcerated, and to the correctional officers, medical professionals, and other people who work inside and visit jails and prisons. Moreover, because these workers and other vendors travel in and out of these facilities, this poses a heightened risk for the general public.

  • We found strong, cross-ideological support for the strategy of dramatically reducing jail and prison populations to slow the spread of the coronavirus. Sixty-six percent of likely voters, including 59% of those who are “very conservative,” said that elected officials should be considering measures to reduce overcrowding in prisons and jails as a response to coronavirus.

  • Fifty-six percent of voters support releasing people who are within six months of completing their sentence in order to reduce the risk of transmitting the coronavirus within jails and prisons. Support for this includes 52% of “very conservative” voters. 

  • Voters also support releasing especially at-risk populations. Fifty-eight percent of voters support releasing incarcerated people who are elderly; while 53% support releasing those whom the Center for Disease Control and Prevention (CDC) has classified as vulnerable, including those with asthma, cancer, heart disease, lung disease, and diabetes.

  • Voters also overwhelmingly support reducing unnecessary jail admissions: 63% support encouraging law enforcement to make use of summons or tickets as alternatives to jail where necessary.

March 30, 2020 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Wednesday, February 19, 2020

Former NYC mayor Mike Bloomberg, on eve of his first Prez debate, releases full criminal justice reform plan

In this post from December, I noted this page on the campaign website of Mike Bloomberg that reported on "three criminal justice reform policy proposals" then announced by the then-new Democratic presidential candidate.  Unsurprisingly, that partial plan has not deflected criticisms of Bloomberg's record and past comments on criminal justice matters.  And, also unsurprisingly, Bloomberg has now announced more of a criminal justice platform via this piece headlined "Mike Bloomberg Expands Criminal Justice Reform Plan With Bold Initiatives to End Era of Mass Incarceration."  Here are excerpts (with emphasis and links in the original):

Commits $22.5 billion to reduce prison population by 50% by 2030, will slash youth incarceration by half in four years, and expands funding for public defenders

Invests $1 billion in programs to support young men of color and creates justice reclamation centers at historically black colleges and universities

Democratic presidential candidate Mike Bloomberg today released his comprehensive plan to restructure our country’s criminal justice system. On December 3, 2019, Mike released three key pillars of his criminal justice reform policy as the first policy announcement of his campaign.  In the 12 weeks since, the campaign and Mike have met with leaders, advocates, and activists to receive input and feedback, which culminates in today’s release of Mike’s full criminal justice reform platform. As president, Mike will end the era of mass incarceration by heavily investing federal resources to halve the prison population within the next decade, increase funding for public defenders, and confront deep-seated racial and economic inequities that fall largely on Black, Latino, and other underserved communities.

Mike’s plan promises to protect people at every touchpoint in the justice system, from innovative pre-trial efforts that stop the reliance on incarceration to addressing unjust and excessive sentencing in the courtroom, and from re-imagining our prisons as a place for rehabilitation to a new work program and robust services for people returning to their communities. Mike will also commit $22.5 billion over 10 years for reform at the state and local level, with a new Justice Reform Office at the Department of Justice to fund the most-needed reforms on a state-by-state basis....

Mike’s Plan to Reform America’s Criminal Justice System

The United States has a mass incarceration problem. The U.S. has 5% of the world’s people, yet confines nearly a quarter of the world’s prison population. America’s criminal justice system has dramatic racial disparities: Latino adults are three times more likely to be incarcerated than White adults, and Black Americans make up 13% of the U.S. population but are 40% of all incarcerated people. The system unfairly punishes people for their poverty, often further entrenching them in a vicious cycle of poverty and incarceration.

In Jackson, Mississippi last December, Mike pledged to prioritize juvenile justice, fund local violence interrupter programs, reform the bail system, and bring new re-entry and career-training programming to prisons. Mike’s full plan, announced today, will:

  • Protect the public and rebuild community trust: Mike will invest in innovative community-led partnerships, focused deterrence programs and smart and just policing. Mike will sign a bill raising the standard for federal officers’ use of force, ensuring deadly force is used only when necessary to prevent serious injury or death — and will pressure states to enact similar statutes. He will require de-escalation and bias training, body-worn cameras and early intervention for police who present warning signs. He will promote independent police oversight boards, re-invigorate civil rights investigations to keep police accountable and make it a national priority to expand and analyze data on police use of force.
  • Cut incarceration rates and re-imagine prison as a place for rehabilitation from day one: Mike will invest $22.5 billion to launch a Department of Justice reform hub to evaluate and fund state-level criminal justice reform efforts, set a goal to reduce incarceration by 50% by 2030 and cut crime across the U.S., and spread the use of alternatives to prison pioneered in New York City. Additionally, he will increase funding to improve health and safety in federal, state and local prisons, along with education and job training.
  • Address injustice in the legal system: Mike will boost funding for public defense, end cash bail, court fines and punitive fees and roll back punitive sentencing practices. Public defense is underfunded in the states, leading to longer sentences and wrongful convictions. Mike will fund $2.5 billion over ten years for public defense – requiring grantees to have pay parity for defenders and prosecutors, as well as workload limits that ensure fair representation. He will also end federal cash bail, end court fines and punitive fees and propose new federal sentencing structure to reverse an overly punitive legacy. Mike’s plan will decriminalize possession and use of marijuana nationwide, commute any existing sentences and expunge any records.
  • Help formerly incarcerated people re-enter society: Mike will start a federal work program for the formerly incarcerated, including providing employers with a multi-year tax incentive and expanding “ban the box initiatives.” He will bolster federal funding for re-entry services and also expand social services for children whose parents are incarcerated.
  • Increase support and services for victims of domestic violence, gun violence, hate crimes and human trafficking: Mike will increase funding to build family justice centers, which provide holistic services for survivors of domestic violence—and make it easier for victims to seek justice. He will also re-authorize the Violence Against Women Act, with necessary improvements; eliminate the national rape kit backlog; start a national helpline for gun violence and make hate crimes and human trafficking a top federal priority.
  • Invest in young men of color: Mike’s plan will invest $100 million annually to revive and sustain the My Brother’s Keeper Initiative as a federal program. Using the Neighborhood Equity and Opportunity Office (NEO), proposed in the Greenwood Initiative, Mike will launch a permanent funding stream to invest in young men of color. Building on the Young Men’s Initiative that Mike created as mayor, this national program will focus on creating opportunity while preventing entry into the criminal justice system. He will also establish a National Trauma-Informed Care Task Force to study the effects of early trauma – and to recommend practices to formalize the delivery of quality care across federal agencies that touch low-income families and justice-involved people.
  • Create restorative justice centers at historically black colleges and universities (HBCUs): Mike’s plan also includes funding justice reclamation centers at HBCUs across the country. Mike will set up a network of justice reclamation as hubs of history and public education that will chronicle an era, create the conditions for healing based on the best social science and devise constructive strategies for policing, remediation and community involvement. These centers will be a collaborative place to gather existing expertise and develop best new solutions — with a special focus on restorative justice. The centers will partner with local My Brother’s Keeper projects, helping give communities the tools to drive meaningful criminal justice reform.

Given the recent buzz around the Roger Stone sentencing and Prez Trump's latest clemencies, as well as Bloomberg's first appearance on the Democratic debate stage and his "stop and frisk" record, I am thinking tonight's debate in Nevada is likely to include some (perhaps even a lot) of criminal justice issues.  Notably, Nevada is the first state to vote this season that has fully legalized marijuana, so that too could perhaps be a topic for tonight discussion.

Prior related post:

February 19, 2020 in Campaign 2020 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (1)

Sunday, February 16, 2020

Can a new conservative group help get the death penalty abolished in Ohio?

The question in the title of this post is prompted by this recent local press piece, headlined "Conservative group vows to end the death penalty."  Here are excerpts:

Activists have pushed to end the death penalty for years but there's a new effort to abolish it by a new group of more recent converts — conservative Republicans.  "Conservatives Concerned with the Death Penalty" includes prominent former lawmakers like Governor Bob Taft and former Congressman Pat Tiberi.

Governor Mike DeWine has delayed several upcoming executions because the state's previous methods of lethal injection are on hold in the courts. An alternative that will pass legal muster hasn't been figured out. House Speaker Larry Householder said in December the death penalty may not be enforceable.

“I’ve been pro-death penalty pretty much my entire career as a political operative," said Michael Hartley, a Republican operative for more than 20 years.  Hartley said he saw the toll executions had on the attorneys general and governors he worked for and that made him re-evaluate his stance.  “It is a pro-life state, it’s a fiscally responsible state and when you look at that, a lot of people question if it matches their values," he said. “We can’t even deliver our own mail.  Why should they be in charge of executing humans?”

He is part of the group "Conservatives Concerned with the Death Penalty."  That group will formally launch in Ohio on Tuesday....  Hartley said some conservatives have soured on the death penalty because it doesn't make fiscal sense. Executing an inmate costs more money in legal fees than imprisoning them for life.  Morally, Hartley said he can't stand for it after learning of people being exonerated after they've already been killed. “If we’ve executed one person that was innocent, this shouldn’t exist," Hartley said.

When state lawmakers might vote on abolishing the death penalty is unknown.  Not all Republicans, who have large majorities in both the Ohio House and Senate, have changed their minds about it.  Hartley said if Ohio were to end the death penalty, it could spark similar bans across the Midwest and rest of the nation.

This press notice from the national Conservatives Concerned About the Death Penalty group reports on speakers schedule for an Tuesday morning press conference that includes one active member of the Ohio General Assembly, namely Representative Laura Lanese, R-Grove City.  If there were another dozen or so Republican Ohio House members prepared to support abolition (and a comparable number in the state Senate), I might actually start thinking this could possibly happen.

Prior related posts:

February 16, 2020 in Death Penalty Reforms, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (1)

Sunday, January 19, 2020

The Prosecutors and Politics Project releases "National Study of Prosecutor Elections"

The Prosecutors and Politics Project at the University of North Carolina School of Law this past week released this massive new report titled simply "National Study of Prosecutor Elections." Here is the start of the 350+-page report's "Executive Summary":

American prosecutors wield significant power in the criminal justice system.  They must decide when to file charges, which crimes to prioritize, and how lenient or harsh to be in plea bargaining.  Prosecutors are entrusted with this power, in part, because they are accountable to voters.

In most states, that accountability comes in the form of direct elections.  Forty-five states elect prosecutors on the local level.  These local elections provide a powerful check on the power that prosecutors wield — at least in theory. But how does that check operate in practice?  Put differently, how much of a choice do voters have about who will make important criminal justice decisions in their communities?

This report presents the results of a nationwide study of prosecutor elections. The first of its kind, the study gathered data from every jurisdiction that elects its local prosecutors in a recent election cycle.  The study showed great variation in elections across the country.  Some elections gave voters choices in both primary and general elections to choose their local prosecutor.  But other elections were entirely uncontested. And some elections did not even have a single candidate on the ballot.

Whether an election gave voters a choice seems to depend on two different factors.  The first of those factors is the population in the district where the election was held. Communities with large populations tended to have more than one candidate in their elections, while communities with small populations tended to have uncontested elections.

Beginning in February 2018, the Prosecutors and Politics Project began collecting information about the most recent election cycle in each state that elects its local prosecutor. For most states, that meant we collected data from the 2014 or 2016 election cycle.  But in some states the most recent election had occurred as far back as 2012 and as recently as 2017.  In total, we collected election results for 2,318 districts across 45 states.

January 19, 2020 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (1)

Tuesday, January 14, 2020

"Who challenges disparities in capital punishment?: An analysis of state legislative floor debates on death penalty reform"

the title of this post is the title of this new article just published in the Journal of Ethnicity in Criminal Justice and authored by David Niven and Ellen Donnelly.  Here is its abstract:

In McCleskey v. Kemp, the Supreme Court tasked legislatures, rather than courts, with redressing racial disparities in capital punishment.  Elected officials must then decide to amend disparate death penalty procedures.  Analyzing floor debates, we explore why legislators make arguments for racial disparity or fairness in deliberations of death penalty reforms.  Results suggest views on race and the death penalty are products of partisanship, constituency composition, and the race/ethnicity of legislators, with the interaction of these factors being most predictive of argumentation.  Findings illuminate who leads discourse on fairness in criminal justice and the limits of legislative responses to racial injustice.

January 14, 2020 in Death Penalty Reforms, Elections and sentencing issues in political debates, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Wednesday, January 08, 2020

Might the 2020 campaign bring back "law and order" as a political wedge issue?

The question in the title of this post is prompted by this extended new New York Times opinion piece authored by Thomas Edsall. The piece's full headline captures its main point: "Trump Wants Law and Order Front and Center; The president and his allies are trying to make Democratic plans to reform law enforcement a potent campaign issue." The piece merits a full read, and here are excerpts:

Unexpectedly, the 2020 presidential campaign is drilling down on petty crime and homelessness.  Donald Trump and his Republican allies are reviving law-and-order themes similar to those used effectively by Richard Nixon and Spiro Agnew in the late 1960s and early 1970s to demonize racial minorities.

To this end, Republicans seek to discredit liberalized law enforcement initiatives adopted by a new breed of Democratic prosecutors.  These Democratic district attorneys — in cities, counties and suburbs from Philadelphia, Orlando, Chicago and St. Louis to Contra Costa County, Calif., Suffolk County, Mass., and Durham County, N.C. — are pursuing policies intended to decriminalize vagrancy, and eliminate cash bail, and they are aggressively pursuing charges in cases of shootings by police officers.

They are playing a key role in a hotly politicized movement to curb mass incarceration and to roll back what has become known as “the carceral state.”  The decarceration movement is backed by a wide array of organizations tightly aligned with the progressive wing of the Democratic Party: the Real Justice PAC, Black Lives Matter, the Brennan Center for Justice, the ACLU, Justice Democrats, MoveOn.org and Brand New Congress....

At the same time, as this movement has been gaining momentum, it has provided ammunition for a powerful counterattack from President Trump, his attorney general, William Barr, and other law-and-order Republicans.

The result is that the 2020 election is expanding the 50-year-old culture war into new territory as Democrats — often under pressure from younger voters — seek to extend broader rights to those who have been previously stigmatized or marginalized, now moving beyond protection for minorities, women and gays, to provide more freedom to criminal defendants, the homeless, the mentally ill and unknown numbers of men and women imprisoned through prosecutorial misconduct, judicial error or other forms of systemic failure.

Republicans, in turn, are betting that the Democratic presidential candidates have moved substantially farther to the left on issues of crime and punishment than the voting public. Leading Democratic presidential candidates, for their part, are not shying away from the challenge, endorsing in whole or in part the decarceration and decriminalization agenda.

Even Joe Biden, one of the more moderate 2020 candidates, argued at the September Democratic presidential debate that “We should be talking about rehabilitation. Nobody should be in jail for a nonviolent crime” and that “Nobody should be in jail for a drug problem. We build more rehabilitation centers, not prisons.” Once a strong supporter of the death penalty, Biden now calls for its elimination....

While many of the Democratic presidential candidates have effectively joined the decarceration movement, the same unity cannot be found among House and Senate Democrats. At this level, the movement is one more source of conflict between the Alexandria Ocasio-Cortez wing and the many members of the House and Senate who must fight for re-election in more moderate districts and states, including those that cast majorities for Trump in 2016....

Republicans are responding to the initiatives of progressive prosecutors with a vengeance. In a fiery speech on Aug. 12 at the Grand Lodge Fraternal Order of Police’s conference in New Orleans, Barr warned that progressive prosecutors in cities across the nation are “demoralizing to law enforcement and dangerous to public safety.”...

Three days later, William M. McSwain, the Trump-appointed United States Attorney for the Eastern District of Pennsylvania, called a news conference to explicitly attack the Philadelphia district attorney, Larry Krasner.... Most recently, President Trump, at a rally on Dec. 10 in Hershey, Pa., told the crowd “You have the worst district attorney,” referring to the Philadelphia D.A., roughly 95 miles east. “I’ve been hearing about this guy, he lets killers out almost immediately. You better get yourself a new prosecutor.”

Turning the decarceration movement into a 2020 campaign issue fits into Trump’s go-to strategy of inflaming divisive conflicts, especially those involving disputed rights — particularly those benefiting minorities — in order to activate racial resentment, to mobilize his core voters and to goad swing voters into lining up against the Democratic Party....

Over the past four years, many progressive Democrats have turned sharply against the aggressive policing that broken windows enforcement produced, arguing that it has contributed to excessive incarceration that results in the disproportionate imprisonment of African-Americans and other minorities.  At the presidential debate in September, virtually every candidate voiced strong opposition to mass incarceration and support for the release or sentence reduction of those convicted of nonviolent crime....

On this issue, one of Trump’s key allies is Tucker Carlson.  Every night this week, Carlson is devoting segments of his Fox News show to homelessness. His show will reinforce the 2020 Republican election theme that Democrats are fostering endemic social disorder.  On Jan. 3, Carlson tweeted: “Drugs.  Homelessness.  Third world inequality.  San Francisco’s radical left wing government has turned their city into an American Dystopia.”

This week’s series is the second time in less than a year that Carlson has devoted five straight nights to homelessness, with footage of men and women injecting themselves, evidence of public defecation, the vagrant mentally ill, and sidewalks in California lined for blocks with tents....

The Trump campaign is gambling that Democrats are outside the mainstream of public opinion on these issues, while the leading Democratic candidates are convinced that enough of the electorate has become sufficiently skeptical of law-and-order strategies — and the accompanying racial undertones (and overtones) — to produce a Democratic victory on Nov. 3, 2020.  Over the past 50 years, Democratic strategies based on the presumption of increasing liberalism among voters at large have rarely succeeded. Perhaps 2020 will be different.

January 8, 2020 in Campaign 2020 and sentencing issues, Criminal justice in the Trump Administration, Elections and sentencing issues in political debates | Permalink | Comments (1)

Tuesday, December 24, 2019

Two modern takes on the modern politics of criminal justice reform

I have recently seen these new commentaries that both speak to the interest state of modern criminal justice reform politics:

From The Conversation by Jody Armour, "How being ‘tough on crime’ became a political liability." Excerpts:

Kamala Harris recently dropped out of the presidential race after months of attacks from the left for her “tough-on-crime” record as San Francisco’s district attorney and as California’s attorney general.  A few years ago, the idea that being tough on crime would be a liability — not an asset — was unthinkable for both Democrats and Republicans.

Bill Clinton, during the 1992 presidential race, interrupted his campaign so he could return to Arkansas to witness the execution of a mentally disabled man. During Harris’ 2014 reelection campaign for attorney general, she actively sought — and won — the endorsements of more than 50 law enforcement groups en route to a landslide victory.

But something has changed in recent years. Harris’ failure to gain traction as a presidential candidate has coincided with a growing number of “progressive prosecutors.”  In the past, I would have scoffed at the notion of a progressive prosecutor. It would have seemed like a ridiculous oxymoron.

But in one of the most stunning shifts in American politics in recent memory, a wave of elected prosecutors have bucked a decades-long tough-on-crime approach adopted by both major parties. These prosecutors are refusing to send low-level, non-violent offenders to prison, diverting defendants into treatment programs, working to eradicate the death penalty and reversing wrongful convictions....

Michelle Alexander’s 2010 book, “The New Jim Crow,” deserves some credit for changing the way activists thought about crime and punishment.  Alexander cast mass incarceration as a civil rights crisis by showing that people didn’t simply end up in jail because they were bad people who made poor choices.  Nor did prison populations explode simply because there were more crimes being committed.  Instead, mass incarceration was closely intertwined with race, poverty and government policy.

Among civil rights activists, issues like affirmative action in higher education had been consuming a lot of time, energy and resources.  Alexander’s book helped redirect attention to racialized mass incarceration as a main battlefront in U.S. race relations.  Since its formation in 2013, the Black Lives Matter movement has made criminal justice reform a centerpiece of their activism.

From The Hill by Paul Samuels and Gabrielle de la Gueronniere, "Candidates take note: Strong bipartisan consensus on criminal justice reform."  Excerpts:

From the headlines these days, you might think that there is little that Republicans and Democrats agree on — but that is simply not true.  After decades of failed policies and devastating consequences, Americans on both ends of the political spectrum strongly agree about the need for bold action to reform the nation’s drug and criminal justice policies.  The question is: Will policymakers hear their unified voices urging action?

Polling recently conducted on behalf of Legal Action Center (LAC) found most Americans (71 percent) believe that treatment for addiction to opioids and other drugs should be readily available and affordable for all who need it, including 80 percent of Democrats and 64 percent of Republicans.  Most Americans (67 percent) also believe we should treat addiction to opioids and other drugs more as a health problem than a criminal problem, including 78 percent of Democrats and 55 percent of Republicans.  And there is strong support (61 percent) for expanding programs that send people arrested for drug use to treatment instead of prison.

As the polling makes clear, Americans recognize this essential truth: Addiction treatment is less expensive, more effective and simply more sensible than the current law enforcement approach, which has not worked, is racially biased and has devastated communities.

Nearly two-thirds of Americans (62 percent) believe that we should provide legal protections that help individuals leaving prison reenter society and find employment, housing and educational opportunities, including 71 percent of Democrats and 54 percent of Republicans. A majority of Americans (56 percent) also support sealing non-violent criminal records after people complete their sentences to facilitate their successful reentry into society.

December 24, 2019 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Wednesday, December 04, 2019

New Prez candidate Mike Bloomberg releases new (partial) criminal justice reform proposals

This page on the campaign website of Mike Bloomberg reports that yesterday, after "a roundtable discussion with Mayor Chokwe Lumumba and community leaders focused on criminal justice reform in Jackson, Mississippi, Democratic presidential candidate Mike Bloomberg ... unveiled three criminal justice reform policy proposals."  Here is more:

The proposals focus on reducing the U.S. incarceration rate — the highest in the world — and addressing the failings of a criminal justice system that disproportionately harms communities of color. Bloomberg will unveil a comprehensive plan for criminal justice reform in the coming weeks....

The key pillars of Bloomberg’s initial criminal justice reform proposals include:

1. Launching a national initiative to reduce the incarceration of young people, by building on New York City’s success in cutting youth incarceration rates...

2. Expanding federal funding of effective alternatives to adult incarceration and investing in policies that help formerly incarcerated individuals re-enter society, find employment and escape the cycle of crime.

3. Investing in proven, community-based violence-interruption strategies that address the root causes of crime and prevent violent behavior before it occurs.

December 4, 2019 in Campaign 2020 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Wednesday, November 27, 2019

"The Politics of Decarceration"

The title of this post is the title of this new Yale Law Journal article by Rebecca Goldstein which reviews Rachel Barkow's book, "Prisoners of Politics: Breaking the Cycle of Mass Incarceration." Here is the article's abstract:

In Prisoners of Politics, Rachel Barkow convincingly argues that the criminal-justice system is deeply broken: the United States’s incarceration rate is the highest in the world, and there is little evidence that this system, with all its devastating human and monetary costs, is contributing to improved public safety.  Prisoners of Politics argues that at the root of this broken system is electoral politics, and that elected officials (legislators, prosecutors, and judges) will tend toward punitiveness.  The book proposes a range of reforms, most notably the use of expert criminal-justice policymakers who would be insulated from the electoral process and devoted to ensuring that the system promotes public safety and avoids arbitrariness.  The introduction of expertise can certainly help make the criminal-justice system less punitive, and policymakers should heed the book’s detailed policy recommendations.

However, this Review argues that electoral politics are more likely than the book suggests to help bring about criminal-justice reform.  There is nothing inherent about electoral participation’s punitive influence.  To the contrary, we might be at the dawn of a new era of electorally motivated criminal-justice reform.  In the past decade, reform has become orthodoxy in the Democratic Party and has been embraced by significant parts of the Republican Party.  Recent grassroots mobilization and subnational elections provide hope that criminal-justice reformers can achieve significant gains through the electoral process.  Additionally, original public-opinion analysis shows that younger Americans are less punitive than their older counterparts, and evidence suggests that tomorrow’s electorate might be less punitive than the electorate of the late twentieth century.  For those reasons, this Review argues that electoral politics can offer a path forward for those who seek to end mass incarceration.

November 27, 2019 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (2)

Tuesday, November 26, 2019

Making the case that "progressive prosecutors" are acting "downright conservative" (and should be embraced conservatives)

Lars Trautman has this notable new Washington Examiner commentary under the headline "The criminal justice reforms pushed by ‘progressive prosecutors' are surprisingly conservative." I recommend the piece in full, and here are some excerpts:

The term “progressive prosecutor” has catapulted into the national consciousness and has dominated discussions about prosecutorial reform that it has become nearly synonymous with the idea of reform itself....  But strip away the “progressive” branding of the policies and the left-leaning personalities advocating on their behalf, and most of these initiatives are not intrinsically left-wing. Indeed, some even look downright conservative.

One of the reforms instituted by Philadelphia District Attorney Larry Krasner, the poster child of the "progressive prosecutor" movement, provides one particularly emblematic example.  In 2018, Krasner ordered his prosecutors to consider the costs of incarceration associated with each sentencing recommendation. With its potential to deter unnecessarily lengthy sentences, the policy was a natural fit within Krasner’s larger push to fight mass incarceration.  Yet if you remove that description and Krasner’s name, the proposal, framed as an innovative way to extend consideration of taxpayer dollars to government decision-making, looks like something straight out of a fiscal conservative’s playbook.

Nor does it take much imagination to envision even more dramatic “progressive” reforms as part of a conservative prosecutorial platform.

Take, for instance, Suffolk County District Attorney Rachael Rollins’s decision to make alternatives to prosecution the default disposition for a host of low-level misdemeanors. This charging policy has appealed to the activist Left as a step toward a fairer, more restrained criminal justice system.  Yet with its redirection of scarce government enforcement resources to the pursuit of more serious offenses, a prosecutor could just as easily promote the policy as an effort to enhance government efficiency and improve public safety, two hallmarks of traditional conservatism.

Although no national movement or label as powerful as that of the “progressive prosecutor” has coalesced on the political Right, the handful of Republicans bucking aspects of the traditional prosecutorial paradigm shows that the potential for other conservatives to do so is not purely theoretical.

In Florida, for example, State Attorney Melissa Nelson ousted an incumbent in part by stressing the need for reforms geared toward smarter, fairer prosecutions, many of which she has since delivered — including Florida’s first conviction integrity unit.  Likewise, District Attorney Constance Filley Johnson won election in Texas while associating herself with the conservative criminal justice reform movement.  Barry Johnson, another Texas district attorney, explicitly rejected the label “reform” yet nevertheless dismissed hundreds of misdemeanor cases in order to reduce the jail population and save taxpayer money.

Conservatives shouldn't allow these right-leaning reformers to remain somewhat rare examples.  Voters across the ideological spectrum continue to support criminal justice reform by wide margins, and, as the high-profile actions of "progressive prosecutors" show, district attorneys are in a position to deliver real change.  Ceding prosecutorial reform to liberals would put conservatives on the wrong side of an electorate hungry for a break in the status quo.

And while that fate may seem politically attractive to Democrats, they should resist the urge to encourage it.  Attempting to make the liberal vision of prosecutorial reform its only possible manifestation is a recipe for ensuring that it never reaches millions of Americans.  Vast swathes of the country have no interest in anything remotely associated with the phrase “progressive.”  Thus, prosecutorial reform will only reach at least half the country if it has a more conservative cast and bent.  Many of the same policies that reduce mass incarceration also make us safer and save taxpayer money.  Undermining a conservative district attorney because he or she emphasizes the latter is self-limiting to the movement.

November 26, 2019 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (1)

Monday, November 25, 2019

An early review of an eventful first year for the FIRST STEP Act

Though the official one-year anniversary of the passage of the FIRST STEP Act is still four weeks away, I suppose it is not too early for some review and reflection on the eventful year that was.  Here is a new NBC News piece in this spirit which has this lengthy full headline: "The First Step Act promised widespread reform.  What has the criminal justice overhaul achieved so far?  The law's effects are real almost a year later, experts say.  But some are concerned whether the bipartisan alliance that produced it can hold together."  I recommend this lengthy piece in full, and here are excerpts:

Nearly a year after the First Step Act's passage, NBC News spoke to over a dozen people, including former and current elected officials, liberal and conservative advocates, and formerly incarcerated individuals, among others, who championed the reforms. They all agreed that the law's effects are tangible, and many believe the bipartisan coalition that produced it appears durable.

“I think the biggest win is that this is now a safe issue after years and years and years of the two parties trying to use criminal justice as a way to tear each other down,” said Jessica Jackson, co-founder of #cut50, a bipartisan criminal justice reform nonprofit.

However, some are skeptical the alliance can hold. Many of the next steps advocates have underscored as necessary to bring about true change, like reexamining lengthy sentences for violent offenses and restructuring policing practices, may be a tougher sell. "As some people might say, it's easier to kind of agree on some of the low-hanging fruits, but the higher you reach, the more difficult consensus is going to be,” said Tim Head, the executive director for the Faith & Freedom Coalition, a conservative nonprofit that supports the act as well as other criminal justice reform efforts.

More than 3,000 inmates have been released and another roughly 1,700 people convicted of crack cocaine offenses have seen their sentences reduced thanks to the First Step Act, according to data from the Federal Bureau of Prisons and the U.S. Sentencing Commission....

But the effects of the act's other major provision — the relaxing of the notorious "three strikes" rule to mean a 25-year sentence, rather than life in prison, for three or more convictions — are so far difficult to measure. A year in, little data has been collected around how many people had been sentenced under the new guidelines.

The act also a required the development of a new risk assessment tool that aims to determine which inmates are most likely to re-offend if released and to identify ways to assist those who are released. It was completed in July. Meanwhile, roughly 16,000 federal prisoners have enrolled in drug treatment programs created by the act, according to the Justice Department.

The success — or limitations — of the tool and the new programs still remain to be seen, but advocates say the overall represent a major shift in thinking. "It's part of wider system transformation from one that was based on gut instinct and anecdotes and headlines to decisions that are made based on evidence and research," said Adam Gelb, the founder of the Council on Criminal Justice, a bipartisan criminal justice nonprofit.

However, he added, the nuances of implementation matter. "We're talking about human behavior and it's never going to be a perfect assessment of someone's readiness for release nor a perfect judgment about the length of time they deserve to spend behind bars for the purposes punishment," he said.

Head, the executive director of the Faith and Freedom Coalition, said the act's changes, which also include mandating BOP train its 31,000 employees on de-escalation techniques and mental health awareness, intended to shift "the culture of our federal system from pure punishment, to one of at least considering rehabilitation in a much more meaningful way."...

Advocates for the First Step Act, particularly left-leaning ones, described its reforms as historic but modest. True change will require looking to the heart of the system — police interactions and what happens inside courtrooms, experts said. Right now, black Americans are more likely to be arrested for the same activities as white Americans, and more likely to be prosecuted, convicted and sentenced to longer jail terms....

To make a more significant dent in the nation’s prison population, attention must shift toward the roots of mass incarceration, said Tony J. Payton Jr., a Democrat and former Pennsylvania state lawmaker who championed state-level criminal justice reforms. “We’ve got to basically dismantle that entire system,” said Payton, who is now affiliated with the 20/20 Bipartisan Justice Center, a national and bipartisan coalition of black criminal justice reformers.

Payton's list of targets, however, points to some of the remaining contentious matters in criminal justice reform that could threaten the bipartisanship needed to implement them, such as sentencing reform for both non-violent and violent offenders, eliminating mandatory minimums, reforming police departments and eliminating prosecutorial immunity.

November 25, 2019 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (0)

Tuesday, November 05, 2019

Very different looks on criminal justice reform for governors in Oklahoma and New York

As spotlighted in prior posts here and here and here, Oklahoma this week saw a series of interesting and important criminal justice reform efforts culminate in the release of more than 400 prisoners as part of the largest mass commutation in U.S. history (details here).  Thanks to Twitter, I saw this video clip of persons being released from the Eddie Warrior Correctional Center.  Notably, in addition to being greeted by friends and families, the released individuals also saw Governor Kevin Stitt and First Lady Sarah Stitt awaiting their release to congratulate them.

Not long after I saw this video and the heartening involvement of Oklahoma Governor Stitt in this historic criminal justice reform story, I saw this press article discussing the disheartening work of New York Governor Cuomo is a much more discouraging criminal justice story.  The piece is headlined "Gov. Cuomo's Program for More Clemency Applications Appears to Stall, As Prisoners Wait and Hope for a Second Chance," and here are excerpts:

Governor Andrew Cuomo’s program to help more prisoners apply for clemency in New York State appears to be stalled and the Governor’s office is declining to explain why.

In 2017, Cuomo asked lawyers to volunteer to help identify prisoners worthy of his mercy, and assist them in making their best case for a shortened sentence. More than two hundred lawyers stepped up. But two years and thousands of pro bono hours later, Governor Cuomo has neither approved nor denied any of the 107 clemency applications filed through the program.

“It’s discouraging. We’ve put a lot of resources into it.” said Norman Reimer, executive director of the National Association of Criminal Defense Lawyers, which partnered with Families Against Mandatory Minimums and the State at the Governor’s request. “We put people away for ridiculous amounts of time, often for mistakes they made when they were very young,” Reimer added.

Lawyers involved in the NACDL/FAMM project tell News 4 because there has been no action in these cases, they are reluctant to take on new prisoners. More than 1,600 prisoners are currently waiting to be assigned attorneys through the project. “The idea that you can’t find a single one of those to grant is inconceivable to me. There’s just no greater feeling than giving somebody freedom,” said NYU Law Professor Rachel Barkow and author of "Prisoners of Politics."

The power to commute a prisoner’s sentence rests solely with the Governor. NACDL says the Cuomo administration has been highly cooperative, producing records and helping to vet cases.

Cuomo administration insiders familiar with the clemency review process say the problem is not that these cases are being ignored. Sources with first hand knowledge say the cases submitted by NACDL/FAMM were carefully reviewed by a team of attorneys inside the office of the Counsel to the Governor. They say the team identified a group of worthy candidates for a possible mid-year clemency grant this past Spring, but the Governor did not act.

Timing, they speculated, may have played a role, citing pushback from some law enforcement groups for Cuomo’s role in the early release of Judith Clark in May 2019. Clark was the getaway driver in the deadly 1981 Brink’s robbery and the Governor commuted her sentence to make her eligible for early parole. One person who has discussed the project at length with the Governor’s senior staff described a sense that politically speaking, “the bang was not worth the buck.”

Several sources familiar with the internal review process say the Governor’s office may have been taken aback by the large number of applications lawyers submitted on behalf of prisoners who committed violent felonies. These cases are more politically sensitive for a governor, because it is not uncommon for district attorneys, law enforcement groups and family members of victims to oppose early release.

But Norman Reimer says if the severity of the crimes is the reason for Cuomo’s inaction, that’s not how the governor’s office promised to approach this process. “What I like about Governor Cuomo’s initiative is he didn’t limit it based on the nature of the crime," said Reimer. "We pressed that issue and it was an affirmative decision by them to let the person’s record of rehabilitation speak the loudest, even in violent crimes.”

Governor Cuomo’s office did not respond to repeated requests for an explanation for his inaction on the NACDL/FAMM cases, nor for a breakdown of the clemency grants he has issued. According to public reports, Cuomo has commuted at least 18 sentences in almost nine years, including three in 2018.

Barkow says compared with some other Democratic governors, Cuomo has used his executive clemency powers sparingly. Gavin Newsom of California commuted the sentences of 23 prisoners since September of this year, including prisoners involved in violent felonies....

In last year's primary, the progressive wing of the Democratic party hammered Cuomo for what they considered insufficient criminal justice reforms. “The people who care about these issues want to see real results,” said Professor Barkow. “They want to see that people are walking the walk and not just kind of throwing talk out there.” As for Cuomo’s record on justice issues like clemency and marijuana legalization, Barkow added “It seems like the pattern is to wait and just make sure where the political winds are blowing.”

November 5, 2019 in Clemency and Pardons, Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, November 03, 2019

"Criminal Justice Reform Is About People, Not Posturing"

The title of this post is the title of this recent Real Clear Politics commentary authored by John Koufos.  I recommend the full piece, and here are excerpts:

It’s a shame that Sen. Kamala Harris sought to politicize a celebration of the historic First Step Act at Benedict College in South Carolina last week.  Criminal justice reform has benefited millions of Americans — most especially the minorities the Democratic presidential candidate says she advocates for.  This reform restores victims, redeems former prisoners and rebuilds communities....

According to the U.S. Sentencing Commission, the First Step Act has overwhelming helped remedy historic injustice to minorities; African Americans make up more than 91% of those released.  It is no secret that minority communities were hurt most by the 1994 Clinton crime bill, which was originally drafted by Sen. Joe Biden.  At Benedict College, the president demonstrated his support for a “second step” of criminal justice reform....

Perhaps the greatest legacy of the First Step Act is its effect on state policy.  States are following the national criminal justice reform trend led by the White House. The president identified recent reforms in Arizona, Florida, Louisiana, Mississippi, Missouri, Michigan, Nevada, Oklahoma, Oregon, and Tennessee, which can be expected to lead to safer streets, increased employment and opportunity, and restored dignity and self-worth.

Goals — and results — like these should not be politicized.  I have seen the commitment of the president and White House first-hand, as part of a bipartisan coalition working on criminal justice reform.  I had the privilege of being in the Oval Office when the First Step Act was signed, and was humbled when the president asked me to speak about criminal justice reform at the White House.  I witnessed Jared Kushner’s leadership, and the commitment of Republican and Democrat legislators.  As I work with governors and state leaders across the country, I see the excitement for criminal justice reform regardless of party.

Criminal justice reform is a nonpartisan idea whose time has come.  President Trump summed it up best at Benedict College when he said: “I knew criminal justice reform was not about politics.  I’m … not sure that what I did was a popular thing or an unpopular thing, but I know it was the right thing to do.”

November 3, 2019 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (0)

Wednesday, October 30, 2019

"On One Issue, Americans Are United. Too Many Are Behind Bars."

The title of this post is the title of this New York Times commentary authored by Tina Rosenberg.  Here are excerpts:

Across America, Democrats and Republicans demonize each other — and then sit down to hammer out legislation to reduce mass incarceration.  Last December, Congress passed the First Step Act, which applies to federal prisons.  It increases opportunities for education and rehabilitation in prison, gives inmates more time off for good behavior, requires prisoners be placed closer to their families, and reduces mandatory minimum sentences for some drug offenses.

But the real progress is in the states — a broad range of them.  Texas, South Carolina, Georgia, Louisiana, Mississippi, Colorado, California, New Jersey and New York, among others, have all passed major criminal justice reforms.  This momentum shows what can be done.  At the same time, it highlights the rarity of bipartisan progress.

So what is it about criminal justice? It’s certainly not the case that crime lends itself to dispassionate, rational analysis. In the past, no issue seemed more politicized.  Many local politicians won because of 30-second ads showing how tough on crime they were.  Lee Atwater’s infamous Willie Horton ad for George H.W. Bush’s 1988 campaign was perhaps the nadir of American political communication until recently. Democrats also competed to be the toughest on crime and terrified voters — wrongly — with the specter of superpredators.

Creating mass incarceration 30 years ago was a bipartisan project.  So it’s fitting that undoing it is as well.

One reason for bipartisanship is that the criminal justice system has affected so many people — 30 percent of American adults have a criminal record, which the F.B.I. defines as an arrest on a felony charge.  “Every single American family is impacted by the broken justice system,” said Holly Harris, the executive director of Justice Action Network, which works with Republicans and Democrats at the federal and state level to reform criminal justice....

On criminal justice reforms, the language from left and right seems to be converging.  “Originally, conservatives talked about these issues in terms of public safety, recidivism reduction, curbing government spending and big government,” Ms. Harris said.  (The prison system is a perfect conservative target: a hugely expensive failure of a government program that deprives people of their freedom.)  “And progressives talked in terms of reducing racial disparities and increasing fairness.  But I’ve watched that evolve.”

October 30, 2019 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Notable review and reflection on Prez candidate criminal justice reform forum at Eastern State Penitentiary

Earlier this week, there was an historical (but ultimately disappointing) forum for Democratic Prez candidates at the historic Eastern State Penitentiary.  Here are two links providing an overview of the event: 

The headline of the Inquirer piece highlights the main reason I am inclined to call the event disappointing, though this effective Intercept piece by Alice Speri capture my mood even more fully.  The lengthy piece is headlined "The Presidential Town Hall On Mass Incarceration Was A Historic Moment And A Missed Opportunity," and here are excerpts:

The candidates who showed up on Monday — Sens. Kamala Harris and Cory Booker, and billionaire Tom Steyer — sat close to a few dozen audience members representing a wide range of justice reform organizations led by those who know the system best. There were hugs, selfies, and some hard questions. But most notable was the absence of most of the presidential candidates, including all the frontrunners, and the sometimes evasive answers of the candidates who did show up.

“In that room, you had some of the foremost leaders in the country, folks who have been working for decades to lift the systemic oppression of incarcerated people,” said J. Jondhi Harrell, a Philadelphia activist who spent 25 years in federal prison. “To those who say that they want to be president and have specific ideas about how to reform the system, you have the opportunity to speak to the experts in the field. To just wave this off and say it’s not important really speaks to what you feel not only about justice reform, but also about black and brown people.”

Erica Smith, a California-based organizer with a group that provides transitional housing for formerly incarcerated people, made a similar point. “I was disappointed that some of the other candidates didn’t value what we have to say enough to come have a discussion with us,” she said. “We are 70 million deep in the United States, people who are system-impacted. It’s just the feeling of being discarded once again.”...

In the end, those leaving the event said they were elated that something so unprecedented could have even happened, but they were hardly impressed with candidates’ turnout or commitments....

But while attendees gave the three candidates who showed up in Philadelphia credit for being there to hear them out, several said they left more convinced than ever that any real changes to the system would need to happen without politicians.

“Historically, I’ve seen the United States just ignore our communities and so I won’t feel hopeful until I see results,” said Josh Glenn, who runs a Philadelphia-based group for incarcerated youth and felt that Booker had skirted around a question he had asked about the Juvenile Justice and Delinquency Prevention Act. “I hope whatever president comes into office, that they do the right thing by our communities. But if they don’t, we’re going to stand up for ourselves, and we’re going to make sure that we get what we need on our own.”

October 30, 2019 in Campaign 2020 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Tuesday, October 29, 2019

Prez candidate Beto O'Rourke releases a "comprehensive plan to end mass incarceration"

Via this extended Medium posting, Beto O'Rourke has released what he titles "Beto’s Comprehensive Plan to End Mass Incarceration and Reform Our Criminal Justice System to Prioritize Rehabilitation." The plan is too lengthy and detailed for ready summary, but here are a few of the sentencing parts:

October 29, 2019 in Campaign 2020 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (2)

Sunday, October 27, 2019

Mayor Pete Buttigeig releases extensive criminal justice reform plan expanding on prior Douglass Plan

Back in July, as detailed in this post, Mayor Pete Buttigieg introduced this notable platform titled "The Douglass Plan: A Comprehensive Investment in the Empowerment of Black America."  The plan, which aspires to "dismantle old systems and structures that inhibit prosperity and builds new ones that will unlock the collective potential of Black America," gives considerable attention to "Criminal Justice Reform," with nearly a quarter of this 18-page document focused on such matter. 

Not content, this weekend Mayor Buttigieg released an even more detailed an ambitious criminal justice reform plan at his campaign website under the heading "Securing Justice: Reforming Our Criminal Legal System." The full plan, which is available here and runs 16 dense pages with more than 70 footnotes, defies simple summarization. So here are a few sentencing part that caught my eye (with some formatting lost):

Pete is committed to reducing the number of people incarcerated in the United States at both the federal and state levels by 50%.... To remedy this, Pete will:

Double funding for federal grants for states that commit to meaningful reform and prioritize funding for programs aimed at pretrial reforms, decarceration, and expansion of alternative to incarceration (ATI) programs....

On the federal level, eliminate incarceration for drug possession, reduce sentences for other drug offenses, and apply these reductions retroactively....

Legalize marijuana and automatically expunge past convictions. Pete will push Congress to pass legislation requiring that a significant percentage of tax revenue flowing from legalization is directed back to the communities and people most devastated by the war on drugs....

Eliminate mandatory minimums. The average sentence for someone subject to a mandatory minimum penalty in 2017 was 138 months, compared to 28 months as the average sentence of people convicted of an offense that did not have a mandatory minimum sentence. Eliminating mandatory minimums and decreasing overall sentence length for a significant number of crimes is critical to ensuring that people are not incarcerated when there is no effect on public safety, and it will reduce incarceration. It also will eliminate the role mandatory minimums plays in incentivizing people to plead guilty for crimes they did not commit.

Direct the U.S. Sentencing Commission to explore sentencing caps for all crimes. America’s mass incarceration crisis has been driven in large part by excessive sentencing. Powerful evidence confirms that long sentences have not made Americans safer. Further, we know that people often “age out” of crime as they move through the course of their lives. For this reason, Pete is committed to exploring innovative policy solutions to address the nation’s over-incarceration crisis, such as caps on sentencing.

Commute the sentences of people who are incarcerated in the federal system beyond what justice warrants by establishing an independent clemency commission that sits outside the Department of Justice. An independent clemency commission, with diverse professional backgrounds and lived experiences, will make the process more streamlined and comprehensive....

Support a constitutional amendment to abolish the death penalty.

Reduce the over-reliance on solitary confinement and abolish its prolonged use, bringing the United States in line with international human rights standards, which define the use of solitary confinement in excess of 15 days as per se torture.

October 27, 2019 in Campaign 2020 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (2)