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)

Friday, October 25, 2019

"Tipping the Scales: Challengers Take On the Old Boys' Club of Elected Prosecutors"

The title of this post is the title of this interesting short report from the Reflective Democracy Campaign. Here is how it gets started:

After someone gets arrested, a prosecutor holds the power over what happens next.  Charge the defendant, or release them?  Charge them with a felony, or a misdemeanor? Since the vast majority of cases don’t go to trial, it’s mostly prosecutors — not judges — who determine whether defendants go to prison and for how long.  In the words of Supreme Court Justice Robert Jackson, a prosecutor “has more control over life, liberty, and reputation than any other person in America.”

In 2014, as a prosecutor in Ferguson failed to indict the police officer who killed Michael Brown, we were conducting our historic study of the race and gender of prosecutors. What we found made headlines:  95% of prosecutors were white, and 79% were white men.  Perhaps most alarming, most prosecutors ran for office unopposed, leading to an entrenched status quo which is highly resistant to bipartisan calls for criminal justice reform.

With race and gender inequality baked into the criminal justice system, repairing the broken demographics of prosecutorial power is an urgent goal, and the data are clear:When voters have a choice, they reject the white male status quo.  Competitive elections for prosecutor can fix the demographic crisis and level the playing field for system reform.

Five years after our initial analysis of elected prosecutors, we returned to see how their demographics have — and haven’t— changed.  Here’s what we found:

White control of elected prosecutor positions has not changed: In 2015, prosecutors were 95% white. In 2019, they are still 95% white.

The gender (im)balance of elected prosecutors is changing: While nearly 75% of prosecutors are white men, women have increased at a rate of 34% since 2015, from 18% to 24% of prosecutors.

Change is possible — when there is competition: Prosecutors run unopposed 80% of the time, but in competitive races, the old boys' club starts to give away. White male over-representation is rampant, but not unsolvable.

When women of all races and men ofcolor run for prosecutor in competitive elections, they're more likely to win than white men: In competitive 2018 elections, white men were 69% of candidates, but only 59% of winners. Women and people of color were 31% of candidates and 41% of winners.

Despite overall low numbers, women of color are making notable gains: There are nearly 50% more women of color prosecutors today as in 2015.

October 25, 2019 in Elections and sentencing issues in political debates, Race, Class, and Gender, Who Sentences | Permalink | Comments (4)

Thursday, October 24, 2019

Julian Castro sets forth criminal justice agenda as "The First Chance Plan"

With this extended discussion on his campaign website, Julian Castro on Wednesday joined the sizeable group of prominent candidates for the 2020 Democratic Presidential nomination with a detailed agenda for criminal justice reform.  (Prior posts have links and highlights from Joe BidenCory BookerPete Buttigeig, Kamala Harris, Bernie Sanders and Elizabeth Warren.)  Castro's plan is called "The First Chance Plan" and has three major sections: "1. Prevention Not Prison  2. Restorative Justice  3. Healing Wounds Of Incarceration."  Here is a paragraph from the plan's intor and a few of many parts of the plan that caught my eye:

At the core of the First Chance Plan is the principle that everyone deserves an effective first chance to succeed. For decades, communities of color have been disproportionately punished by the justice system while at the same time having the odds stacked against them from the beginning.  Many people never had a first chance and this plan will right that wrong. As a nation, we need to focus on preventing crime in the first place, not creating pipelines into prison.  We can build a system that advances real justice, not incarceration, to protect public safety and build stronger communities....

End the War on Drugs. Drug use and addiction is primarily a public health challenge.  In dealing with it primarily as a criminal issue, we have shattered communities, strengthened criminal groups, and locked up those who did not deserve it.  As president, I will bring our misguided War on Drugs to an end....

Plea Reform and Accountability. More than 95 percent of all federal and state cases that end in conviction involve a plea deal.  These decisions happen without a judge or a jury of one’s peers, and often involve prosecutors and police exerting immense pressure, such as pre-trial detention and the threat of excessive sentences on defendants to drive people to take a plea bargain. Under these circumstances, even innocent people have accepted plea deals that involve years in jail,prison, years of monitoring, and permanent records. This is a travesty of justice that must end.  As president, I will require open-file, pre-plea discovery for federal cases, requiring the prosecution to turn over evidence to the defense prior to a plea or trial, with appropriate safeguards to protect the safety of witnesses and individuals who may be at risk.  Additionally, I will require juries to be informed of plea offers as well as potential sentences so they can understand how much a case is truly worth to the state.

Eliminate Mandatory Minimums. Three strikes laws and mandatory minimums are a major driver of mass incarceration. In addition, these laws create steep disparities between the terms of a plea bargain and the likely sentence at trial that defendants face, causing many to abandon their trial rights regardless of the strength of the government’s case or even their own innocence.  As president, I would repeal the 1994 Crime Bill’s mandatory minimums and three strikes laws, and encourage State efforts to do the same.

Invest in Public Defenders. Every defendant deserves to have effective representation and a fair trial.  As president, I will give our nation’s under-resourced and overstretched public defenders the resources they need. We will reopen and expand the Obama-era Office for Access to Justice that President Trump shut down.  Second, we will ensure fair caseload limits and pay equality with prosecutors for public defenders at the federal level, and create a new $500 million federal grant program to achieve these standards at the state and local level. I will also pass legislation creating a new loan forgiveness program for public defenders, and will support ushering in a new wave of proggressive prosecutors.

Legalize Marijuana and Expunge the Records. In 2017, there were almost 700,000 marijuana-related arrests in the United States, with over 80 percent of them related to possession alone. As president, I will legalize marijuana and expunge the records of those convicted for non-violent marijuana offenses.  We will regulate the market and place a tax on all recreational sales, investing billions in revenue generated in the communities disproportionately harmed by the War on Drugs.  Lastly, I will support equity in the legal marijuana industry, including by creating new grant programs that support minority-owned businesses and prioritize people directly affected by the war on drugs in receiving marijuana business licenses.

End Racial Sentencing Disparities. I will eliminate the sentencing disparity between crack and powder cocaine, and order a federal review of all other sentencing guidelines to identify and eliminate other racial disparities....

Abolish the Death Penalty.  There is no moral justification for state-sanctioned killings. Even the worst criminals in our society do not deserve to be put to death. With the pernicious existence of racial bias, the high financial cost of executions, and the disturbing reality that the innocent may be among the condemned, there is simply no justification for continuing the death penalty.  As president, I would order an immediate halt to all federal executions and commute the sentences of those on federal death row’s to life in prison.  I support federal grants for States to end the death penalty and to re-investigate the cases of those sentenced to death by State courts with new technology and renewed attention, in an effort to end the death penalty once and for all in the United States.

End Solitary Confinement as Punishment. Long term isolation in solitary confinement is one of the most harmful policies that remains sadly common in our prisons, jails, and even juvenile justice institutions. It particularly harms those with disabilities and who require mental health treatment.  As president, I will support efforts to end our nation’s use of solitary confinement by banning its use for purposes of punishment.

A few of many prior recent related posts:

October 24, 2019 in Campaign 2020 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (3)

Sunday, October 20, 2019

Prez Trump and all the leading Democratic Prez candidates now slated to speak at 2019 Second Step Presidential Justice Forum

As reported in this CNN article, "President Donald Trump will attend a criminal justice forum in South Carolina ... along with several of his 2020 Democratic challengers, the White House confirmed to CNN." Here are the interesting details:

The 2019 Second Step Presidential Justice Forum is also expected to be attended by former Vice President Joe Biden, South Bend, Indiana, Mayor Pete Buttigieg, Sen. Cory Booker of New Jersey, former Housing and Urban Development Secretary Julian Castro, former Rep. John Delaney of Maryland, Sen. Kamala Harris of California, Sen. Amy Klobuchar of Minnesota, Sen. Bernie Sanders of Vermont, Sen. Elizabeth Warren of Massachusetts -- all of whom have confirmed their attendance.

Trump will speak on Oct. 25, while the Democrats are slated to speak at various times throughout the day on Oct. 26 and 27, according to the event schedule [basics here].

The event which is billed as a "bipartisan forum of presidential candidates exclusively focused on criminal justice reform as it affects the Black community," will feature the first-ever "HBCU Straw Poll," according to the news release, in which "all students and alumni of the eight HBCUs in South Carolina will vote online for the presidential candidate that best addresses their concerns on all issues facing African-Americans, not solely limited to criminal justice reform."  The forum will be held at the historically black Benedict College in Columbia, South Carolina.

Last month, Trump announced that his administration would lift a ban on federal funding for faith-based historically black colleges and universities, hailing his administration's work advancing HBCUs. At that time, the President said the "nation owes a profound and enduring debt of gratitude to its HBCUs," later adding, "You've seen this administration's commitment -- bigger and better and stronger than any previous administration by far."  Trump has also previously cast himself as the best leader for African Americans, despite securing only 8% of the black vote in 2016 and frequently stoking racial tensions.

The forum will give him the opportunity to discuss the First Step Act, bipartisan criminal justice legislation that was enacted into law last year and includes measures that have allowed thousands of federal inmates to leave prison earlier than they otherwise would have, eases some mandatory minimum sentences and gives judges more leeway in sentencing, among other things.

October 20, 2019 in Campaign 2020 and sentencing issues, Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Thursday, October 10, 2019

Marshall Project reviews where 2020 Democratic Prez candidates stand on various criminal justice reform issues

The folks at The Marshall Project has put together this attractive and handy guide reporting and organizing all the position of the 2020 Democrats on criminal justice. I recommend the resource, and here are the issues on which positions are assembled:

How would you reform the bail system?

Should people in prison have the right to vote while they are incarcerated?

Should marijuana be legalized nationwide?

Should sentencing include mandatory minimums?

Do you support the death penalty?

Do you support decriminalizing illegal border crossings?

October 10, 2019 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Saturday, October 05, 2019

Making a righteous call for Prez candidates to walk the walk, and not just talk the talk, on criminal justice reform

This new USA Today commentary, authored by four criminal justice reform advocates who have all been previously incarcerated, astutely stresses that candidates for political office can and should do more than just talk about criminal justice reform in order to show real commitment on justice reform. Authored by Daryl Atkinson, Norris Henderson, DeAnna Hoskins and Vivian Nixon, I recommend the piece in full. Here are extended excerpts:

An examination of the criminal justice reform proposals of the Democratic presidential candidates shows similarities in policy priorities. Most, if not all, favor ending cash bail, prohibiting private companies from operating prisons, legalizing marijuana and reducing or eliminating mandatory minimum sentences.

Yet, nagging questions remain: Who is fully committed to fixing these problems? In other words, which candidate will take action when they stop campaigning and start governing?

It’s important to examine more than policy positions and take a look at candidates in their entirety.  Some have prioritized criminal justice reform throughout their careers. Others have announced policies during this campaign that are at odds with their legislative votes.  Others still have made controversial decisions while they worked within the criminal justice system. But most have not been heavily involved in the movement to end mass incarceration....

At long last, the American public has started to recognize the harmful impact of tough-on-crime policies.  It is no longer a risk for Democrats to say that mass incarceration must end — a testament to the tireless work and dedication of thousands of advocates and practitioners, many of whom have a criminal record or have returned to their communities after incarceration.  It also is not politically audacious to issue position papers on eliminating mandatory minimum sentences or providing better services for people reentering society.  In this day and age, the fact that we cannot punish our way into public safety has been definitively concluded.

But those running for the highest office in the country must go above and beyond these safe ideas if they want to show that they’re committed to more than just political rhetoric.  After all, even the current president has claimed to be a criminal justice reformer.  To set themselves apart from politics as usual, candidates must speak directly to the constituencies that have the most at stake on every issue, including mass incarceration.

There are plenty of criminal justice reform groups out there just like ours, and activists are waiting for the opportunity to talk to candidates about policy. Democrats have given time to groups that deal with gun-control issues and that are led by survivors of mass shootings and family members who have lost loved ones.  Beto O'Rourke of Texas met with a little over a dozen veterans in South Carolina to talk about issues that affect them.  Sen. Elizabeth Warren spent time in Philadelphia taking questions from teachers....

We are formerly incarcerated.  But we are citizens.  We vote.  And, we are influencers in progressive movements that address mass incarceration and related issues.  Candidates who commit to direct engagement with us will send a message of hope to energize an army of supporters whose numbers have unfortunately and regrettably grown way too big.

October 5, 2019 in Campaign 2020 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (2)

Tuesday, September 24, 2019

Prez Trump has reportedly soured on politics of criminal justice reform after FIRST STEP Act achievement

This lengthy new Politico piece portends some dark clouds for federal criminal justice reform efforts in the months and perhaps years ahead. The full headline summarizes the essential: "Trump snubs Jared Kushner’s signature accomplishment; The president thinks criminal justice reform is a political loser, and hasn't been shy about saying so."  Here are some extended excerpts:

When President Donald Trump huddled with campaign aides in the late spring to discuss his bid for reelection, White House senior adviser Jared Kushner told his father-in-law he should highlight last year’s historic passage of the First Step Act — a sweeping criminal justice reform bill that eluded previous administrations and has earned celebrity support.

Kushner reiterated the positive selling points of that bill during the Oval Office meeting as Trump campaign officials and White House aides ticked through the president’s achievements, wondering which would resonate most with his adoring base.  But Trump wasn’t interested and told Kushner he didn’t think his core voters would care much about a bipartisan deal for which he’s since accused Democrats of trying to steal credit. “It was clear he thinks it’s a total dud,” said a person familiar with the meeting. “He made it abundantly clear he doesn’t think it’s worth talking about.”

Kushner, whose own father spent more than a year in federal prison, worked closely with Democratic and Republican senators to get the criminal justice reform bill over the finish line last year — often telling his tough-on-crime boss it was worth expending political capital to seize a rare opportunity to overcome the deeply partisan divide on Capitol Hill and solidify his image as a pragmatic deal-maker.

But now, Trump “is telling people he’s mad” at how criminal justice reform has panned out, according to a person close to the president. “He’s really mad that he did it.  He’s saying that he’s furious at Jared because Jared is telling him he’s going to get all these votes of all these felons.”

Indeed, for months, the president has glossed over his son-in-law’s signature legislative achievement at his campaign rallies. If he brings up criminal justice reform, it’s almost always to mock his predecessors for their inability to get it done. Otherwise, as he did at his three most recent campaign events, he skips it entirely, indulging in long-winded rants about unresolved issues like trade and immigration instead of plugging one of the few bipartisan triumphs of his administration.

The subject’s notable absence from Trump’s 2020 stump speech offers a raw look at the president’s political instincts, which strongly veer toward partisan fights and away from the soaring appeals to national unity of past White House incumbents. And it lacks appeal to his base of rural and older white voters, who often respond better to hard-line rhetoric on the topic of law and order.

The nub of the issue for Trump, say White House officials, congressional aides and friends of the president, who were granted anonymity to speak candidly on the matter, is that he no longer sees criminal justice reform as a résumé booster heading into 2020.  He brings it up at official events, in response to reporters, and to religious groups — and it was a key part of Trump’s State of the Union address in January, when he welcomed home the first inmate to be released under the First Step Act — but it’s far from a permanent fixture of his reelection campaign.

“It would be difficult to say it’s a change of heart. I don’t think his heart was ever really in it,” said one White House official, adding that some Trump aides questioned why the president — who once declared himself “the law and order candidate” — endorsed the First Step Act in the first place....  In response to this story, a White House official said, “This false premise is another convoluted contradictory, media-manufactured joke. The president is clearly proud of all of his record-setting accomplishments — including the landmark bipartisan Criminal Justice Reform that data shows will save money, reduce crime and make communities safer.”

During the Oval Office meeting this spring, Trump complained that Democratic co-sponsors of the First Step Act skipped the bill signing at the White House last December (Sen. Sheldon Whitehouse of Rhode Island was the only Democrat to attend) and have refused to give him credit for passing prison reform when his immediate predecessor couldn’t, according to two people with knowledge of the meeting.  He’s said as much publicly in recent days, tweeting earlier this month: “I got it done with a group of Senators & others who would never have gone for it. Obama couldn’t come close.”

The tweet came after NBC’s Lester Holt omitted any mention of Trump’s role in advancing criminal justice reform during a televised town hall on the network. The president felt the televised special was disingenuous and thought singer John Legend, who participated in it, “paraded himself out like he was the great savior of criminal justice reform,” according to a senior administration official....

“He’s been telling Jared, ‘I got nothing from that,’” a person close to the White House said of criminal justice reform, adding that the president feels duped by claims that his popularity has grown and that he is frustrated with Kushner’s attempts to “jawbone” the issue into every speech he delivers.  “Jared has got all these stats like ‘every rapist in Florida is now going to vote Republican,’” quipped the person close to Trump.  “Trump doesn’t believe it and he’s mad Jared sold him this thing,” the same person said. (The First Step Act gives only certain nonviolent offenders a chance to shorten their sentences, and excludes sex offenders from early release.)

Kushner has claimed publicly that more nonviolent ex-felons in Florida, where they recently became eligible to vote, are registering as Republicans than as Democrats. In a rare television appearance in April, he told Fox News’ Laura Ingraham that he found that statistic “very pleasing” and one “that will surprise a lot of people when they see the new coalition that President Trump is building.”  But it is unclear how Kushner and his team procured such data. As of March, more than 2,000 formerly incarcerated felons had registered to vote in Florida, according to a study by the Brennan Center for Justice, which did not disclose the new registrants’ party affiliations. An aide to Kushner did not provide details on the source of the data in time for publication.

Some Trump allies argue that Kushner, who continues to monitor implementation of the First Step Act, is unlikely to persuade media personalities and Democratic lawmakers who support either to credit Trump with working across the aisle to get the measure passed.

“Van Jones was happy with Trump for a day. That’s all Trump got,” said the person close to Trump, referring to the liberal CNN pundit and former Obama adviser, who once described the First Step Act as “a Christmas miracle.”  Jones did attend a White House summit on prison reform this April — months after the bill passed — and recently met with Kushner to discuss its impact.  Jones, who co-founded the bipartisan criminal justice reform nonprofit #cut50, noted that he’s continued to sing Trump’s praises on the topic, including in a recent interview with CNN in which he celebrated Trump’s role in signing the First Step Act into law.... “There’s always been a bunch of people in the building, they didn’t like it before, during or after, and they’ve always been able to leak out anonymous bullshit quotes that then very quickly have egg on their faces because Trump does something else positive in this direction or throws in another line in a speech,” said Jones, who confirmed that Trump has been frustrated with the lack of credit he’s received....

Some Trump allies worry that the more the president talks about criminal justice reform, the more vulnerable he becomes if a prisoner released early under the restructured sentencing guidelines is ever accused of committing another crime.  When Republicans battled over criminal justice reform last fall, a small group of conservative senators who ultimately opposed the bill warned Trump of the dire consequences he could face if an inmate who won early release became a repeat offender.  “You let people out of jail early, commute sentences, something bad happens because of this effort [and] it’s going to be one more egg on their face — or even worse, blood on their hands,” said a former Senate Republican staffer.

Another GOP aide pointed to a negative ad campaign Republican gubernatorial candidate Eddie Rispone recently launched against Louisiana Gov. John Bel Edwards over his support for statewide sentencing reform. The ad accuses Edwards of putting “dangerous” and “violent” ex-felons “back on our streets where they robbed, attacked, [and] murdered.” A person familiar with the ad buy said it was prompted by the September arrest of a Louisiana man on burglary charges who was released early last year as part of a parole reform bill passed by the state Legislature in 2016. “Any smart political person would not go out bragging that they let criminals out of jail,” the GOP aide said.

This reporting is quite interesting, but not really all that surprising in light of Prez Trump's personal and political history. It also has me wondering whether Attorney General William Barr, who seems to be in good with Prez Trump and does not seem inclined to be a big fan of the FIRST STEP Act, might be having some influence on how the Prez thinks about these issues. Most fundamentally, this story serves as yet another reminder of just how fragile political support for criminal justice reform can be and how critical it can be to get reform work done whenever a window of opportunity is open.

September 24, 2019 in Campaign 2020 and sentencing issues, Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (3)

Wednesday, September 04, 2019

"Are We Still Cheap on Crime? Austerity, Punitivism, and Common Sense in Trumpistan"

The title of this post is the title of this notable new paper authored by Hadar Aviram available via SSRN. Here is its abstract:

Literature on “late mass incarceration” observed a contraction of the carceral state, with varying opinions as to its causes and various degrees of optimism about its potential.  But even optimistic commentators were taken aback by the Trump-Sessions Administration’s criminal justice rhetoric.  This paper maps out the extent to which federal, state and local actions in the age of Trump have reversed the promising trends to shrink the criminal justice apparatus, focusing on federal legislation, continued state and local reform, and the role of criminal justice in 2020 presidential campaigns.  The paper concludes that the overall salutary trends from 2008 onward have slowed down in some respects, but continued on in others, and that advocacy concerns should focus on particular areas of the criminal justice apparatus.

September 4, 2019 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Tuesday, August 06, 2019

Notable Govs make the case for pressing forward with additional criminal justice reforms

Jerry Brown, former governor of California, and Matt Bevin, current governor of Kentucky, have this new Hill commentary under the headline "The US has barely scratched the surface on criminal justice reform."  Here are excerpts:

In these highly polarized times, our nation is awash in loud and public fights about immigration, health care, global warming, and other daunting challenges. Criminal justice used to be on that list of divisive topics.  But now Americans of nearly every political and demographic perspective agree — we need a public safety approach that works better and costs less.

As current and former governors who prioritize greater justice and safety, we believe this historic moment carries great opportunity, but even greater responsibility.  We must ensure that our momentum does not slip away, and we must push forward with nonpartisan purpose toward a criminal justice system worthy of our nation.

Our states of Kentucky and California are very different.  But we and other leaders across the country have coalesced around the principle that while people must be held accountable for breaking our laws, we cannot build our way to a safer society with ever-more prisons....

But while several dozen states and the federal government have made laudable progress, we’ve barely scratched the surface of all that must be done.  Taxpayers spend a quarter trillion dollars per year to arrest, try, sentence, and supervise the 7 million adults behind bars or on probation and parole.  Yet return-to-prison rates remain high, too many communities struggle with violence and substance abuse, and new technologies are increasing our vulnerability to cybercrime and other threats.

Fortunately, we know a lot more about what works in criminal justice than we did 40 years ago, when our nation began an incarceration boom that has exacted a heavy toll, in both fiscal and human costs.  While there are no magic bullets, research has spotlighted effective strategies to stop the cycle of reoffending and better equip people leaving prison to resume stable lives....

We’ve witnessed the power of shifting political winds, and we know that, particularly with criminal justice reform, we must double down on our efforts and guard against backward-looking proposals that are borne of emotion or recycle failed ideas of the past.

August 6, 2019 in Elections and sentencing issues in political debates, Reentry and community supervision, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Monday, August 05, 2019

Are pretrial risk assessment algorithms really part of "socialist agendas that are sweeping this country"?

The question in the title of this post is prompted by this curious new Fox News commentary authored by US Senator John Kennedy under the headline "Bail, bond decisions are being made today with algorithms -- That puts your safety at risk."  Here are excerpts:

Jurisdictions across the U.S. are snapping up algorithms as tools to help judges make bail and bond decisions. They’re being sold as race- and gender-neutral assessments that allow judges to use science in determining whether someone will behave if released from jail pending trial.

Really, they’re a dangerous collision of the poorly vetted cost cuts and socialist agendas that are sweeping this country.

The algorithms scare me because they’re being implemented for the same reason as the early release programs that are getting people killed.  The goal isn’t to protect public safety.  It’s to empty jail cells and release dangerous criminals on their own recognizance.

As a member of the Senate Judiciary Committee, I’m concerned about the recklessness of public policy that endangers people’s lives, especially in minority communities, where crime often is such a scourge.  These algorithms -- called pretrial assessment release tools -- are the equivalent of using a Magic 8 ball in courtrooms.  The results are disastrous to communities and great for criminals.

In my home state of Louisiana, New Orleans decided a few years ago to reduce the jail population. City officials started using a pretrial assessment release tool that was available for free from a nonprofit founded by a former hedge fund manager who became a billionaire through risky investments that turned into gold.

Do you know what happens when you allow a hedge fund manager to restructure your criminal justice system? You get a model that’s fraught with risk.

The new tool comes into play when someone is arrested on a felony charge, such as robbery or rape. The tool comes up with a score of one to five based on the defendant’s age, criminal history and several other factors. A “one” is considered a low risk to public safety. A “five” is considered justification for maximum supervision.

You would think that a risk level of “one” would be limited to people who jaywalk or shoplift. You would be wrong. In practice, a “five” apparently is reserved for people who kill busloads of nuns.  Ordinary thugs get a “one” as long as they promise that they’ll spend all their time in church and attend every court appearance.  They don’t have to regularly check in with a court officer or even call once a month....

The Metropolitan Crime Commission found that 37.6% of the people arrested for violent felonies in New Orleans during the third and fourth quarters of 2018 received the lowest risk level of “one.”  That included more than 32% of the people arrested for homicide and 36.5% of the people arrested for rape.

Algorithms diminish public safety in this country.  They ask us to pretend that lengthy arrest records and violent crimes don’t matter. They ask police to scoop up the bad guys only for the courts to immediately release them.  They turn us into a bad joke.

The use of risk assessment algorithms, whether pretrial or at sentencing or in the prison system, is an important modern criminal justice development that justifies much scrutiny and can be criticized on many grounds. But this commentary by Senator Kennedy reads a bit like a parody.

For starters, one of the main reasons risk assessments are appealing is because judicial decision-making without the help of data can itself often seem a lot like "Magic 8 ball" decision-making.  Moreover, all sound risk-assessment tools factor in arrest records and violent crimes, so they cannot properly be attacked for pretending that these past acts "don’t matter."  And, most amusingly, I cannot  quite fathom how efforts to make criminal justice decisions based on useful and relevant data amounts to part of "socialist agendas." 

I would welcome Senator Kennedy encouraging the Senate Judiciary Committee to hold hearings about the pros and cons of using risk assessment algorithms in modern criminal justice systems.  But, since he suggests giving judges more information is part of "socialist agendas that are sweeping this country," I worry he might think informing Senators more about these matters also somehow has mysterious sinister socialist undertones.

August 5, 2019 in Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Technocorrections, Who Sentences | Permalink | Comments (6)

Expressing concern about potential capital distraction from bipartisan criminal justice reform momentum

Laura Arnold has this notable new commentary at Law360 under the headline "Death Penalty Return May Undermine Criminal Justice Reform."  Here are excerpts:

Reasonable minds vociferously differ on, and will continue to debate, the morality of the death penalty. At this critical juncture and moment of opportunity for criminal justice, we must resist the urge to allow this debate to derail large-scale reform.

From a public policy, public safety and cost perspective, the federal death penalty pales in comparison to larger-scale reforms that we could enact today — areas where the White House could add to its bipartisan accomplishments.

There are roughly 171,000 convicted inmates in federal facilities and yet [AG Barr's restarting of executions] decision wastes precious political capital and national attention on a mere 62. Even if we end executions, those 62 will likely never set foot outside a prison for the rest of their lives. Their hearts will continue to beat, but their exile from the living world is immutable.

Meanwhile, there is much greater value in getting the system right for those among the 171,000 federal inmates and nearly 2 million in state and local facilities who have a chance of getting out. Those are the people helped by the First Step Act, and that is where we should continue to focus our efforts....

The death penalty raises a confluence of serious concerns that aren’t easily solved, ranging from constitutional questions to sheer public expense. No wonder that jurisdictions from coast to coast have stopped pursuing capital punishment. The number of death sentences declined by 50% between 2009 and 2015. In fact, only 16 counties out of 3,143 imposed five or more death sentences between 2010 and 2015.

Many advocates want to lower that number to zero. It’s a debate worth having, both at the federal level and in every state. Jurisdictions should, and will, make their own determinations, as they do on numerous issues of policy relevance.

But now is not the time to stoke this fight. We should focus all our bipartisan efforts on positively affecting the more than 2 million lives currently under incarceration nationwide, and on systemic improvements that will result in fewer people facing incarceration in the first place.

The Trump administration has demonstrated a passion for this mission, and a keen skill at building momentum amid an otherwise chaotic political atmosphere. Let’s not lose that momentum by derailing the conversation.

I very much like the message and spirit of this commentary, and long-time readers know I have long discussed in various settings the various problems I see from advocates and others giving so much attention to capital cases. (Some examples of my writings in this vein include A Capital Waste of Time? Examining the Supreme Court’s “Culture of Death,” 34 OHIO N.U. L. REV. 861 (2008) (available here) and Reorienting Progressive Perspectives for Twenty-First Century Punishment Realities, 3 Harv. L.& Pol'y Rev. (2008) (available here).)

But, at the same time, I am not sure AG Barr's decision to try to kick-start the death penalty necessarily will or should have to negatively impact other bipartisan criminal justice reform efforts.  Though this may be wishful thinking, one might hope that the recent death penalty move by the Trump Administration may help mollify the "tough-and-tougher" crowd (likely Senators Cotton and Kennedy and certain pundits) who always pose challenges for further federal reforms.  

In months ahead, robust engagement with the federal death penalty will be taking place in federal courts, and I think it somewhat unpredictable whether and how this litigation will impact broader criminal justice reform politics.  But this commentary rightly flags an issue worth watching in the months and years ahead.

August 5, 2019 in Death Penalty Reforms, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (1)

Saturday, August 03, 2019

Rounding up some 2020 criminal justice reform press pieces

In the wake of the latest debate among Democrats vying for a 2020 Prez nomination, the Marshall Project had these two great pieces on the Democratic field and modern political realities:

"Beyond One-Liners: A Guide to the Democratic Debate on Criminal Justice"

"Are Voters Ready to Move on From Willie Horton?  Democratic debates show how far the conversation has come on justice reform."

In addition, a few other media outlets have had recent pieces in a somewhat similar same vein:

"Criminal Justice Reform Advocates See Prime Opportunity in 2020 Election"

"What's wrong with America's criminal justice system? 6 questions for an expert"

August 3, 2019 in Campaign 2020 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Tuesday, July 23, 2019

Former Veep Joe Biden releases extended "Plan for Strengthening America’s Commitment to Justice"

5cc204a166ae8f499c6db764-750-563As reported in this new Washington Post piece, headlined "Biden announces criminal justice policy sharply at odds with his ’94 crime law," the former Vice President and now Dem nominee front-runner Joe Biden has today release a big bold criminal justice reform plan that is new in various ways.  The Post piece provides some highlights and context, and it starts this way:

Former vice president Joe Biden, who has faced criticism from liberals for spearheading a 1994 law when he was a senator that cracked down on criminals, announced a proposal Tuesday that would eliminate the death penalty and embrace other changes at odds with that earlier legislation.

The Democratic presidential candidate would aim to pass legislation to abolish the death penalty at the federal level and offer incentives to states to follow suit, his new plan says. Convicted criminals who would face execution under current law would instead be sentenced to life in prison without the possibility of parole.

Biden’s plan also would decriminalize marijuana and expunge past cannabis-related convictions; end the disparity between sentences for powder and crack cocaine; and do away with all incarceration for drug use alone. In addition, it would create a $20 billion grant program to spur states to move from incarceration to crime prevention and eliminate mandatory-minimum sentences.

Attitudes about race and criminal justice have changed significantly over the years in both parties, partly as a result of decreasing crime rates. Democrats in particular have moved sharply away from ideas that give greater powers to the police and prosecutors, instead committing to addressing inequities that they say have damaged minority communities.

The release of Biden’s criminal justice plan comes about a week before the next round of televised Democratic primary debates, when his record is expected to come under renewed scrutiny. His support for the 1994 crime bill has been criticized by both Republicans and Democrats, who argue that it led to mass incarceration and tilted the system unfairly against African Americans.

Sen. Cory Booker (D-N.J.), one of Biden’s rivals for the Democratic nomination, offered a preview Monday morning of what is expected to come on the debate stage. “It’s not enough to tell us what you’re going to do for our communities, show us what you’ve done for the last 40 years,” Booker wrote on Twitter. “You created this system. We’ll dismantle it.”

The full "Biden Plan for Strengthening America’s Commitment to Justice" is available at this link, and it merits a read in full because it has a number of interesting elements. Here are a few excerpts from the start and from parts that caught my eye (without links and formatting):

Today, too many people are incarcerated in the United States — and too many of them are black and brown.  To build safe and healthy communities, we need to rethink who we’re sending to jail, how we treat those in jail, and how we help them get the health care, education, jobs, and housing they need to successfully rejoin society after they serve their time.  As president, Joe Biden will strengthen America’s commitment to justice and reform our criminal justice system.

The Biden Plan for Strengthening America’s Commitment to Justice is based on several core principles:

-- We can and must reduce the number of people incarcerated in this country while also reducing crime. No one should be incarcerated for drug use alone. Instead, they should be diverted to drug courts and treatment.  Reducing the number of incarcerated individuals will reduce federal spending on incarceration.  These savings should be reinvested in the communities impacted by mass incarceration....

-- Our criminal justice system cannot be just unless we root out the racial, gender, and income-based disparities in the system.... 

-- Our criminal justice system must be focused on redemption and rehabilitation. Making sure formerly incarcerated individuals have the opportunity to be productive members of our society is not only the right thing to do, it will also grow our economy....

-- Create a new $20 billion competitive grant program to spur states to shift from incarceration to prevention.  To accelerate criminal justice reform at the state and local levels, Biden will create a new grant program inspired by a proposal by the Brennan Center.  States, counties, and cities will receive funding to invest in efforts proven to reduce crime and incarceration, including efforts to address some of the factors like illiteracy and child abuse that are correlated with incarceration.  In order to receive this funding, states will have to eliminate mandatory minimums for non-violent crimes, institute earned credit programs, and take other steps to reduce incarceration rates without impacting public safety....

-- Establish an independent Task Force on Prosecutorial Discretion.  Law enforcement officials’ decisions regarding when to arrest, when to charge, and what charges to bring are critical decision-points in our criminal justice system.  The charges, for example, can dramatically impact not only what sentence someone ends up with but also whether they are compelled to take a plea bargain.  The Biden Administration will create a new task force, placed outside of the U.S. Department of Justice, to make recommendations for tackling discrimination and other problems in our justice system that results from arrest and charging decisions....

-- Eliminate mandatory minimums. Biden supports an end to mandatory minimums. As president, he will work for the passage of legislation to repeal mandatory minimums at the federal level. And, he will give states incentives to repeal their mandatory minimums.

-- End, once and for all, the federal crack and powder cocaine disparity.  The Obama-Biden Administration successfully narrowed the unjustified disparity between crack and powder cocaine sentences.  The Biden Administration will eliminate this disparity completely, as then-Senator Biden proposed in 2007.  And, Biden will ensure that this change is applied retroactively.

-- Decriminalize the use of cannabis and automatically expunge all prior cannabis use convictions.  Biden believes no one should be in jail because of cannabis use.  As president, he will decriminalize cannabis use and automatically expunge prior convictions.  And, he will support the legalization of cannabis for medical purposes, leave decisions regarding legalization for recreational use up to the states, and reschedule cannabis as a schedule II drug so researchers can study its positive and negative impacts.

-- End all incarceration for drug use alone and instead divert individuals to drug courts and treatment. Biden believes that no one should be imprisoned for the use of illegal drugs alone. Instead, Biden will require federal courts to divert these individuals to drug courts so they receive treatment to address their substance use disorder. He’ll incentivize states to put the same requirements in place. And, he’ll expand funding for federal, state, and local drug courts.

-- Eliminate the death penalty. Over 160 individuals who’ve been sentenced to death in this country since 1973 have later been exonerated. Because we cannot ensure we get death penalty cases right every time, Biden will work to pass legislation to eliminate the death penalty at the federal level, and incentivize states to follow the federal government’s example.  These individuals should instead serve life sentences without probation or parole.

-- Use the president’s clemency power to secure the release of individuals facing unduly long sentences for certain non-violent and drug crimes. President Obama used his clemency power more than any of the 10 prior presidents. Biden will continue this tradition and broadly use his clemency power for certain non-violent and drug crimes.

July 23, 2019 in Campaign 2020 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (1)

Sunday, July 14, 2019

"Some Doubts About 'Democratizing' Criminal Justice"

The title of this post is the title of this new paper authored by John Rappaport and recently posted to SSRN. Here is its abstract:

The American criminal justice system’s ills are by now so familiar as scarcely to bear repeating: unprecedented levels of incarceration, doled out disproportionately across racial groups, and police that seem to antagonize and hurt the now-distrustful communities they are tasked to serve and protect.  Systemic social ailments like these seldom permit straightforward diagnoses, let alone simple cures.  In this case, however, a large, diverse, and influential group of experts — the legal academy’s “democratizers” — all identify the same disease: the retreat of local democratic control in favor of a bureaucratic “machinery” disconnected from public values and the people themselves.  Neighborhood juries, for example, internalize the costs of punishing their own; neighborhood police, “of” and answerable to the community, think twice before drawing their weapons or stopping a local boy on a hunch. The experts and detached professionals who populate our dominant bureaucratic institutions, in contrast, are motivated by different, less salubrious, incentives.  Across the gamut of criminal justice decisionmaking, the democratizers maintain, the influence of the local laity is a moderating, equalizing, and ultimately legitimating one.  A generous dose of participatory democracy won’t solve all our problems, but it’s our best shot to get the criminal justice system back on its feet.

This Article’s warning is plain: don’t take the medicine.  “Democracy” and “community” wield undeniable rhetorical appeal but will not really fix what ails us — and may just make it worse.  The democratization movement, the Article argues, rests on conceptually problematic and empirically dubious premises about the makeup, preferences, and independence of local “communities.”  It relies on the proudly counterintuitive claim that laypeople are largely lenient and egalitarian, contrary to a wealth of social scientific evidence.  And ultimately, democratization’s dual commitments are on a collision course.  The democratizers simultaneously devote themselves to particular ends — amelioration of the biased and outsized carceral state — and to a particular means — participatory democracy.  What happens if, as this Article predicts, the means do not produce the ends? Which commitment prevails?  Worse yet, venerating lay opinion distracts from alternative visions of “democratic” criminal justice that more credibly tackle the critical question of how best to blend public accountability with evidence and expertise.

July 14, 2019 in Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Sunday, June 16, 2019

Noting that nearly all Democratic candidates are against the death penalty

This lengthy new San Francisco Chronicle article, headlined "Nearly all Democratic candidates oppose death penalty as public opinion shifts," reports on the new political reality surrounding death penalty view of leading candidates.  Here are excerpts:

Not so long ago, opposing the death penalty was pretty much a death knell for a presidential candidate.  Michael Dukakis, for one, sank his remaining hopes in 1988 when he told a debate questioner he would oppose execution even for someone who had raped and murdered his wife.

Now, in what appears to be another sign of a public turnabout on the issue, nearly all of the Democratic presidential hopefuls — with the notable exception of former Vice President Joe Biden — say they are against capital punishment....

If candidates “thought they were going to hurt themselves by coming out against the death penalty, I really think very few would do it,” said Jessica Levinson, a professor at Loyola Law School in Los Angeles who specializes in election law and governance.  “I think the consensus (among candidates) is, this is where public opinion is or is about to be.”

Opinion polls indicate a decline in nationwide support for the death penalty, from 80% in a 1994 Gallup survey to 56% in October 2018.  A Quinnipiac University poll in March 2018 found that respondents favored life without parole over the death penalty for murder by 51% to 37%. And the polls say Democrats, who will vote in next year’s primaries, are more than three times as likely as Republicans to oppose the death penalty.

The president ... has direct authority over only the federal death penalty, which accounts for a fraction of the more than 2,700 death sentences now pending in the United States, including 735 in California.

Condemned federal prisoners include a few notorious cases — like Tsarnaev and Dylann Roof, the white supremacist who slaughtered nine African Americans at a South Carolina church in 2015 — but most of the 62 were convicted of murders that came under federal jurisdiction because they took place in federal prisons or other U.S. property or were connected to federal drug crimes.  The last federal execution took place in 2003.

Somewhat relatedly, Nicholas Kristof has this lengthy essay in the New York Times proving arguments for death penalty opposition unde the headline "When We Kill: Everything you think you know about the death penalty is wrong."

June 16, 2019 in Death Penalty Reforms, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Friday, June 14, 2019

"The Myth of Bipartisan Death Penalty Abolitionism"

The title of this post is the headline of this notable recent commentary by Charles Fain Lehman at the Washington Free Beacon. I recommend the whole piece, which is a response in part to a recent Atlantic commentary noted here.  Here is how Lehman's piece starts and ends (with links from the original):

Did you know that Republicans are "quietly turning against the death penalty"?  So sayeth the Atlantic, in a lengthy story published Sunday in the wake of New Hampshire's abolition of the death penalty.  Sunday's article is just the latest in "conservatives who oppose the death penalty" coverage.  Google some combination of "death penalty," "conservative," and "oppose" and you will find similar stories from outlets like the GuardianWall Street Journal, and Washington Post.

The Atlantic piece neatly summarized the tenor of such stories: "death-penalty reform has quietly broken through as a bipartisan issue — one that could portend a shaky future for capital punishment in the U.S."

The basis of this argument is that a handful of Republican state legislators have authored or signed on to legislative proposals to end the death penalty.  But the implication is that conservatives are slowly but steadily getting in line behind the liberal consensus against the death penalty.  That's total nonsense.  Let's look at the data.

The General Social Survey, a major survey of public opinion administered by the National Opinion Research Center at the University of Chicago, has routinely asked respondents about their views on the death penalty since 1974; it also tracks respondents' political views.  The results are pretty clear: Roughly three in four conservatives support the death penalty, and have done so at at least that rate since the 1970s....

To be sure, there are self-identified conservatives who oppose the death penalty, in much the same way that there are self-identified conservatives who call themselves pro-choice or reject the right to keep and bear arms.  But the survey data show that abolition has been and remains a clear minority view, among conservatives and indeed among Americans generally.

Why, then, does the mainstream media keep pushing the narrative that there is some emerging conservative consensus against the death penalty?  Why do they keep regurgitating the talking points of the same few advocates?  (The Atlantic article conspicuously lacks a quote from any expert who represents the majority of Americans who support the death penalty.)

On this we can only speculate.  But one thing is clear: When it comes to the death penalty, most of the media is on one side, and most conservatives — indeed the majority of Americans — are on the other.

June 14, 2019 in Death Penalty Reforms, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (3)