Sentencing Law and Policy

Reviewing some elected offices that impact local, state and federal criminal justice system

Prison Policy Initiative has this new election-season briefing about criminal justice official titled "Mass incarceration is on the ballot: A guide to how 19 offices you may be asked to vote on can help end mass incarceration in America."  Here is how it gets started:

Election Day is right around the corner. While presidential campaigns get most of the attention from the news media, many lesser-known down-ballot races can have a much more dramatic impact on criminal legal system reform in America.

For voters interested in ending mass incarceration, we’ve put together a guide to the most common offices for which they will cast their ballots this November.  We also explore how those offices can make decisions to reduce the number of people behind bars, improve conditions in prisons and jails, and help turn the page on America’s failed experiment with mass incarceration.

It’s worth recognizing that there are significant differences in what an office might be called and its exact responsibilities from state to state and city to city, so readers should keep in mind that this might not be a perfect match for their area.  Additionally, it would be impossible to list all of the complex and far-reaching ways some offices influence the criminal legal system.  This guide focuses on the most common and consequential offices and responsibilities in this realm and is not intended to be all-encompassing.  With this guide, we aimed to give people a starting point for their research to better understand the roles and powers of the offices they’ll be asked to vote for.

Readers should use this guide to evaluate their candidates for office, press them to take clear stands on how they’ll use their position to improve the criminal legal system if elected and hold them accountable for those commitments once they take office.

Two recent takes on the pendulum swings in recent justice reform efforts

In our nation, reform movements can often have a tendency to moderate over time, and that seem especially true in the criminal justice space where we can often see major (and minor) pendulum swings in reform efforts and broader politics. These moderating tendencies came to mind upon seeing this morning two recent notable pieces discussing, in somewhat differing contexts, the current state of reform efforts:

From The Atlantic, "Bipartisan Criminal-Justice Reform Is Still Very Much Alive: Yes, the pace of progress has slowed, but it certainly continues."

From the Marshall Project, "How Efforts to Cut Long Prison Sentences Have Stalled: Crime victim advocates and conservative groups are resisting moves to revisit 'truth-in-sentencing' laws."

UPDATE:  After doing this post, I came across another recent article discussing another recent pendulum swing:

From the Washington Post, "Hard drugs illegal again in Oregon as first-in-nation experiment ends:  Those who supported a measure that went into effect in 2021, which legislators rolled back this year, said it sought to help instead of simply handcuff."

Noting how California initiative to roll back Prop 47 is creating political divide

"Where you stand depends on where you sit" and "All politics is local" are two old chestnuts in the political world. This new Politico article, headlined "Why a tough-on-crime initiative is splitting California’s Democrats," tells a variation on this story in conjunction with west-coast criminal justice reform initiative. Here are excperts:

If you want to know where California Democrats stand on the tough-on-crime Proposition 36, look at where they sit.

On one side of the ballot-measure contest are the Capitol’s top Democrats, including Gov. Gavin Newsom and Assembly Speaker Robert Rivas, who have fought efforts to roll back parts of Prop 47, the landmark 2014 criminal justice ballot initiative that downgraded certain theft and drug crimes from felonies to misdemeanors.

On the other side are big-city mayors like San Francisco Mayor London Breed and San Diego Mayor Todd Gloria, who have argued that strengthened penalties are necessary to assuage their constituents’ growing concerns about public safety.  They have been joined by organizations like the League of California Cities and the California Contract Cities Association, which represent the interests of city hall officials statewide.

San Jose Mayor Matt Mahan and two local officials — Sacramento County District Attorney Thien Ho and Elk Grove Mayor Bobbie Singh-Allen — are now launching their own committee supporting Prop 36.  They hope the Common Sense for Safety committee will open space for other Democratic office-holders willing to cross Newsom and other prominent state officials....

When prosecutors and big-box retailers came forward earlier this year with their initiative to restore harsh penalties for non-violent crimes, Newsom and legislative leaders began working to get it off the ballot.  After failing to persuade the initiative’s proponents to drop their quest and abandoning plans to promote an anti-crime measure of their own, the Capitol’s top Democrats are leading the charge against Prop 36.  They warn the measure will take California back to the era of mass incarceration and cost taxpayers millions of dollars.

It has not stopped Democratic mayors and other local officeholders from coming out in favor of the initiative.  Yes on Prop 36, the main campaign committee supporting the initiative, has put out a steady drumbeat of endorsements from local-level politicians, including many Democrats....  Local officials and organizations that represent them say there are clear reasons for the measure’s strong support on the local level: They’re less insulated from the effects of retail theft and drug issues than politicians in Sacramento, giving them more of an on-the-ground perspective on how dire the situation really is.

Detailing backstories around effort to roll back key criminal justice reform aspects of California's Prop 47

The New York Times has this new extended article providing a lot of context (but not a lot of legal details) for the ballot measure coming before California voters to revise significantly a criminal justice reform proposition from a decade ago.  The full headline of the article details its themes: "Frustrated Californians May Be Ready for a Tougher Approach to Crime: Shoplifting and fentanyl use have tested the patience of California voters, who will decide in November whether to impose stricter laws that would lead to more incarceration."  I recommend the piece in full, and here are snippets:

Californians of all political stripes have become fed up with the problems plaguing supermarkets and retail stores, not to mention car break-ins and open-air drug use.  Some top Democrats, including Mayor London Breed of San Francisco, have joined conservatives in denouncing a cascade of smaller crimes that have contributed to a sense of lawlessness in major cities. Now the state’s lawmakers and voters are weighing what to do.

With public sentiment in the state shifting toward stiffer punishment, California finds itself debating whether to roll back decade-old changes that sharply reduced the state’s inmate count and made it a leader in reducing mass incarceration.

A coalition of law enforcement figures, business owners and relatives of fentanyl addicts want to reverse the 2014 ballot measure known as Proposition 47, which reduced penalties for shoplifting and drug possession.  That measure has been blamed so often for the state’s crime woes that it is among the few past initiatives that residents can identify by number.... With financial help from the giant retailers Target, Home Depot and Walmart, the coalition has gotten a ballot measure qualified for the November election that would impose harsher punishments for crimes that result in lighter charges or no prosecution today.

Proposition 47 reduced most drug-possession crimes to misdemeanors, and raised the threshold for thefts to be charged as felonies, to $950 in property or more.  The measure allowed people to get out of prison early if they were incarcerated under the old laws, and it reduced the number of people sent to prison.  It also funneled hundreds of millions of dollars to services for people returning home from prison, helping to reduce the rate of recidivism, according to a study by a state regulator....

The fate of Proposition 47 will be decided by California’s nearly 27 million eligible voters in November. Nearly a million people signed a petition to amend Proposition 47 by imposing tougher sentences for shoplifting and drug possession.

Have "Republicans Have Completely Abandoned Criminal Justice Reform"?

The quesiton in the title of this post is drawn from the statement quoted above that serves as the headline of this lengthy new Reason piece.  Here are excerpts:

The Republican Party wants you to be afraid. Very, very afraid.  Under former President Donald Trump, the party is playing up fears of violent crime, even as crime rates have fallen from their pandemic-era spike. And in the process, it is abandoning the modest yet meaningful moves toward criminal justice reform it made in recent years.

This much was clear on the second night of the 2024 Republican National Convention (RNC), whose theme was "Make America Safe Again." Several of the presenters spoke of the need to get tough on crime.

"We are experiencing a plague of crime across America," said retired police Lieutenant Randy Sutton. "It's all made America more dangerous than ever before." Florida Gov. Ron DeSantis charged that Democrats, like President Joe Biden, "have unleashed progressive prosecutors across our nation who care more about coddling criminals than about protecting their own communities."...

While Trump bragged about signing the FIRST STEP Act and ran ads in 2020 touting his ability to accomplish criminal justice reforms, he had soured on the law by the end of his term. By the time he announced his bid for reelection in 2022, Trump had stopped talking about the bill altogether and was calling for anyone "caught selling drugs, to receive the death penalty." Some Republican-led states that implemented reforms are now repealing them, even in places where the measures were successful.

The FIRST STEP Act was not only one of the most successful reform initiatives in recent years, but it represented a truly bipartisan effort — progressive activist Van Jones still brags about working with Republicans to get it passed — but it became verboten in GOP circles.

The 2024 GOP platform makes no mention of criminal justice reform and instead pledges to "restore law and order," "stand up to Marxist Prosecutors," and "restore safety in our neighborhoods by replenishing Police Departments, restoring Common Sense Policing, and protecting Officers from frivolous lawsuits" — presumably a reference to Trump's stated pledge to give cops "immunity from prosecution."

On the second night of the RNC, with immigration and crime as its theme, speakers stuck to the party line: Many presenters spoke of immigration and crime as if they are inextricably linked, and nobody mentioned criminal justice reform, other than one mention of "comprehensive prison reform" by Republican National Committee co-Chair Lara Trump as one of Trump's first-term accomplishments.

It is clear that Trump has always been eager to tout a "law-and-order" message, and it also seemc clear that many GOP official and candidate are eager to use crime and punishment as a wedge political issue. But I still see some nuances here, with a lot of the crime talk linked to immigration themes and progressive prosecutors being more of a focal point that progessive policies like the First Step Act.  And yet, while we have not heard any recent GOP calls for repeal the First Step Act (as we heard from Gov DeSantis when we was seeking the nomination), I am not expecting Senator Vance tonight or candidate Trump tomorrow to pledge to work on the Second Step Act.  

What might a Vice President JD Vance mean for criminal justice reform and drug policy?

Former President Donald Trump, in a post on Truth Social today, stated that he has "decided that the person best suited to assume the position of Vice President of the United States is Senator J.D. Vance of the Great State of Ohio.”  Senator Vance graduated from The Ohio State University just 15 years ago; if elected, I think he would be one of the youngest Vice Presidents in US history.

I mention Senator Vance's age in part because I think his relative youth makes him relatively more likely to be supportive of criminal justice reform.  He was literally a child in the "tough on crime" political era of the 1980s and early 1990s.  But, of course, age does not define perspective, and he seems to have said relatively little about crime and punishment issues (beyond immigration) in his political rise.  Interestingly, the issue section of his 2022 Senate campaign website has a paragraph headed "Combat Drug and Opioid Epidemic" that concludes this way:

I’ll work to tackle the drug epidemic, eliminate the drugs coming into our community, and help those devastated by addiction.  America is a country of second chances, and I’m proud to say that people in my own family have struggled with addiction for a decade before coming out on the other side of it.  We need to ensure more second chances for Ohioans from all walks of life.

Talk of "second chances" is often heard from criminal justice reforms advocates, though here Senator Vance seems to be focused on those struggling with drug addition. (But, of course, many folks struggling with opioid and other drug addictions are often violating various criminal laws.)

Speaking of drugs and drug policy, I think Senator Vance's history with tech billionaire Peter Thiel is notable in this context.  This Forbes piece discusses some of the history: 

Billionaire PayPal co-founder Peter Thiel was a big supporter of Vance during his Senate run, donating about $15 million — the largest amount ever to boost an individual Senate candidate, according to Politico — to support Vance, who said in March Thiel is “a very fascinating and knowledgeable person” he likes to bounce ideas off of.

A one-time Thiel employee, Vance rose to prominence in 2016 when his memoir chronicling the social, economic and cultural effects of manufacturing’s decline in the Ohio town he grew up in, “Hillbilly Elegy,” was released.

Though I do not follow the drug reform investing space closely, I believe Peter Thiel has actively invested in marijuana reform companies and vocally supported legalization. I also think he has invested in psychedilic therapy business and a pro-doping version of the Olympics.  I suspect Senator Vance has and will continue to distance himself from some of Thier's views, but I also suspect anyone bringing more of a free-market view on drugs into a future Trump Administration could shake up federal drug policy.

Some recent related posts:

• Should sentencing reform advocates have a rooting interesting in Donald Trump's running mate selection? 
• A distinct project for 2025 focused on criminal justice reform 

A distinct project for 2025 focused on criminal justice reform

This past week I saw a notable policy document from the Justice Action Network, titled "Federal Criminal Justice Reform: Options For Policymakers 2025-2029."  This 28-page document aspires to serve "as a guide for actionable policies, with bipartisan support, that will make the criminal justice system more safe, accountable, and fair for incarcerated people, the professionals who work in the criminal justice system every day, and the public."  Here are a few portions of the report's executive summary that focus on sentencing and corrections and reentry topics:

• Evidence-based sentencing reform: the EQUAL Act, the Smarter Sentencing Act, the First Step Implementation Act, bringing back federal parole, reforming the executive clemency process, and strengthening the Juvenile Justice and Delinquency Prevention Act will ensure expensive prison space is prioritized for violent offenses.

• Increasing prison oversight and effectiveness: the Federal Prison Oversight Act and ending or significantly limiting solitary confinement will ensure that prisons are safe for incarcerated people and staff, protecting rights and safety.

• Reducing barriers to reentry: the Due Process Continuity of Care Act, the Reentry Act, the Improving Mental Health in Re-Entry System Act, and the Safer Supervision Act will ensure that people are ready to return to their communities when they leave jail or prison.

• Reducing collateral consequences of incarceration: the Clean Slate Act, the Fresh Start Act, the Begin Again Act, the Driving for Opportunity Act, restoring SNAP and TANF to formerly incarcerated people, ending the ban on drivers’ license suspension for drug offenses will ensure that people who have successfully reintegrated truly get a second chance.

Should sentencing reform advocates have a rooting interesting in Donald Trump's running mate selection?

Almost exactly eight years ago today, I posted here under the title "Scouting Mike Pence on criminal justice: likely Trump VP pick with notably mixed reform record."  Sixth month later, after Mike Pence became Vice President, I had this post asking "Is VP Pence going to be a key player for possible federal sentencing reform?".  These posts serve as a kind of backstory reminder that a presidential candidate's pick of a running mate might be, or might not be, a matter of interest and concern for advocates of criminal justice reforms.  

Of course, I bring this up because it seem we may be only days away from Donald Trump picking a new running mate.  This new NBC News piece, headlined "Trump teases his VP pick timing and names 4 finalists," provides this account of timelines and possibilities:

Former President Donald Trump on Friday said that he'd like to announce his vice presidential running mate next week, potentially during the Republican National Convention, and named four key allies as potential picks.

"I’d love to do it during the convention, which would be you know, or just slightly before the convention, like Monday, love to do it on Tuesday or Wednesday, actually, but for a lot of complex reasons that you people understand, pretty much don’t do that," Trump told "The Clay Travis & Buck Sexton Show."

Trump has been in no rush to reveal his running mate, more than happy to cede the spotlight to the Democratic Party, which is embroiled in the fallout of President Joe Biden's rough debate performance. The former president has a rally scheduled for Saturday evening in western Pennsylvania.

Trump indicated, as NBC News has reported previously, that his VP short list includes GOP Sens. Marco Rubio of Florida and JD Vance of Ohio and North Dakota GOP Gov. Doug Burgum. He also named Sen. Tim Scott, R-S.C., as having been "fierce and great" during a recent television appearance. "We have a very good bench,” the former president said.

He also shed light on the vetting process, calling it a "highly sophisticated version of 'The Apprentice,'" referring to the popular reality TV show Trump hosted in the 2000s. Still, Trump described his decision-making process as, "ultimately ... more of an instinct."

I know Senator Scott has been an advocte for some policing reforms, and that both Senators Scott and Rubio voted for the First Step Act and other federal reforms that have garnered bipartisan approval. In addition, I believe Governor Burgham, who gets much love from me thanks to his first name, signed into law a number of modest criminal justice reforms for North Dakota. And Senator Vance has asserted that "We live in a third world country with a two-tiered justice system."

Though I have seen many political pundits assert that VP picks do not really move the needle as to election outcomes, I am still inclined to believe that a VP can prove meaningful and perhaps even consequential on some policy matters (especially when the president may be inclined to take various paths on a particular policy issue).  So, to repeat the question in the title of this post:

Should sentencing reform advocates have a rooting interesting in Donald Trump's running mate selection?

How many US Presidents have been a local prosecutor? Who was last major party candidate with this pedigree?

It is perhaps a bit early to start thinking about the potential criminal justice policies of the various folks who might replace President Joe Biden as the Democratic Party 2024 nominee for President.  (Or is it? is it? is it?)  But I got to thinking about how a new candidate at the top of the Democratic ticket might reshape the campaign's engagement with a range of criminal justice issues (as well as many other issues, of course).  That thinking, in turn, led me to realize that two oft-suggested potential replacements for Biden have served as local prosecutors: Vice President Kamala Harris served as District Attorney of San Francisco for seven years; Michigan Governor Gretchen Whitmer served as Prosecuting Attorney of Ingham County for five months.

VP Harris also had a lengthy tenure as Attorney General of California, and Pennslyvania Governor Josh Shapiro also served as his state's Attorney General.  But service in the role of a local prosecutor strikes me as "different in kind" regarding knowledge of and connections to criminal justice issues.  And so it seems notable that VP Harris' professional history probably makes her the person with the most significant criminal justice background being serious discussed as a serious presidential possibility since perhaps Earl Warren in 1952.  (Anyone remebder what happened to that guy?)

The quesitions in the title of this post highlight that I am not a presidential historian and have no sense of whether it used to be more common for Presidents and presidential aspirants to have significant criminal justice experience.  This webpage reviewing the "The Long History of America’s Lawyer Presidents," notes that Presidents James Knox Polk and William McKinley served as county prosecutors.  (Side note about lawyer presidents:  I believe that since 1984, Democrats have nominated a lawyer for President every cycle except in 2000; over that time, the the GOP nominated a lawyer only in 1996 and 2012.) 

Given that the last president with history as a state Attorney General was fined and disbarred due to his behavior while in office, I do not think there is a sound basis to assert or suggest that a President with notable criminal justice service is sure to be particularly attentive to legal rules or norms.  Still, there is something of a movie-script quality to the possibility that the 2024 presidential election could involve one candidate with historic experiences as a prosecutor and another candidate with historic experience as a criminal defendant.  Interesting times.

DPIC releases new report focused on "How the U.S. Electoral Process Increases the Arbitrariness of the Death Penalty"

Via email, I learned that this morning the Death Penalty Information Center release this big report titled "Lethal Election: How the U.S. Electoral Process Increases the Arbitrariness of the Death Penalty."   This DPIC press release about the report provides this summary: "The Report uses new data and analysis on appellate rulings and grants of clemency, as well as individual stories and case studies from across the country, to reveal how electoral politcs distort the fairness and accuracy of capital punishment, and how decreasing public support for the death penalty is changing the picture." 

This DPIC report webpage provides some videos and other supplemental materials.  And the full 60+-page report begins with an "Executive Summary: Key Finding":

Elected supreme court justices in Georgia, North Carolina, and Ohio are twice as likely to affirm death penalty cases during an election year than in any other year.  This effect is statistically significant when controlling for the number of cases each year.

Changing public opinion means that zealous support for the death penalty is no longer a litmus test for elected officials in many death penalty jurisdictions.  Today’s elections feature viable candidates who criticize use of the death penalty and pledge reforms or even non-use, reflecting the significant decline in public support for the death penalty.

Elected governors were more likely to grant clemency in the past when they did not face voters in an upcoming election.  Concerns about voter “backlash” have eased today with declining public support and low numbers of new death sentences and executions, and have led to an increased number of prisoners benefiting from clemency grants, especially mass grants, in recent years.

Homicides still way down as weather (and crime politics) heats up in 2024

A few days ago, I received an alert from my local paper about this article reporting that "data from the Columbus Division of Police showed that the city is experiencing some of the lowest levels of violence in a decade."  According to this press piece, the biggest city in Ohio has recorded only 18 murders in this calendar year, compared to 41 at this time last year.  The article also flagged that a number of other cities have also seen significant homicide declines.  

Conveniently and encouragingly, Jeff Asher posted yesterday this new substack entry detailing that Columbus, Ohio is not alone in experiencing a significant homicide decline to start 2024.  Folks should read his full posting for lots more context and details, but here are some highlights:

[M]urder is down around 20 percent in 2024 in more than 180 cities with available data this year compared to a comparable timeframe last year (as of the moment of this piece's publication).  Murder is down 20.5 percent in 183 cities with available data through at least January, down 20.2 percent in 174 cities with data through at least February, and down 20.8 percent in 59 cities with data through at least March 20....

We could still see, and perhaps should expect to see the sample's murder decline to regress towards a more normal rate of decline as the year goes on.  It's only April and there is a ton of time left in 2024 for these figures to regress, but murder is down roughly twice as much with a sample that’s twice as large as what we had last year at this time.... Murder is down more than 30 percent at the moment in Washington DC, New Orleans, Las Vegas, Cleveland, Milwaukee, Detroit, Columbus, Nashville, Philadelphia, and I could keep going....

It's not just murder data in cities pointing to a large decline.  Shooting data from the Gun Violence Archive shows a decline of around 12 percent in terms of shooting victims through March compared to 2023.  This matches the trend of declining shootings in 20 of the 25 cities with available shooting data through at least February this year. 

As readers may recall from prior posts, 2023 brought a considerable (perhaps historic) decline in homicides in the US compared to 2022 (which saw a small decline in homicides after very significant increases in homicides throughout the US in 2020 and 2021).  And my check today at the latest AH Datalytics' collection of homicide data for 2024 from 250+ US cities shows now an 18.8% cumulative decline(!) in murders across the nation's cities through more than the first third of 2024.  And a number of big cities are showing even bigger 2024 declines from police reports: Washington DC and Milwaukee homicides are down around 25%; Cleveland, Dallas and Phoenix homicides are down nearly 30%; Baltimore, Columbus, New Orleans and Philadelphia homicides are down more than 40%.

I am not sure criminologists have a clear story for why we are not seeing historicthe  homicide declines, but the many hundreds of fewer murders to start 2024 is certainly something to celebrate and to hope continue.  (I noted in a prior post that the 2023 and 2024 declines in homicide come at a time of relatively low use of the death penalty and relatively lower rates of incarceration by US standards.)  Of course, these remarkable homicide numbers could change in the months ahead, and the hotter weather of summer months historically bring an uptick in homicides.

Also sure to heat up this summer are crime politics.  I flagged in this post yesterday a recent Politico article quoting aides of President Biden suggesting the Pesident was planning to embrace tougher approaches on crime and immigration.  And today bring this lengthy New York Times piece headlined "Even as Violent Crime Drops, Lawlessness Rises as an Election Issue."  Here is a small excerpt:

Homicide rates are tumbling from pandemic highs in most cities, funding for law enforcement is rising, and tensions between the police and communities of color, while still significant, are no longer at a boiling point. But property crime, carjackings and smash-and-grab burglaries are up, adding to a sense of lawlessness, amplified on social media and local online message boards.

Mr. Trump is re-upping his blunt, visceral appeal to voter anxieties. He declared recently that “crime is rampant and out of control like never before,” promised to shoot shoplifters, embraced the “back the blue” slogan against liberal changes to police departments — and even falsely accused the F.B.I. of fabricating positive crime data to bolster Mr. Biden.

Mr. Biden, in response, is taking a more low-key approach.  He has spotlighted improving violent crime rates, promoted vast increases in funding to law enforcement under his watch and pointed to an aggressive push on gun control, as well as a revived effort to hold local departments accountable for discriminatory and dangerous policing practices in Black and brown neighborhoods. 

Elections, past and future, have consequences for criminal justice reform policies and plans

Politico has this notable new article on criminal justice reform "vibes" coming from the White House headlined "The White House to the left: We told you so on crime."   Folks who follow criminal justice politics will not be surprised by much in the article, but it serves as an important reminder about political takes on the national mood as we head toward the heart of the election season.  Here is how:

The defeat of a liberal Portland prosecutor at the hands of a tough-on-crime challenger has hardened a view among top White House officials that Democrats need to further distance themselves from their left flank on law-and-order issues.

In the wake of the voter backlash over public safety in Oregon, Joe Biden’s aides this week argued the results served as validation of their long-running concerns that crime and an immigration crisis at the southern border risk overwhelming the president’s case for reelection — especially if the broader party is seen as soft on both fronts.

“Particularly right now, Americans don’t want to feel like things are out of control,” said one Biden official, who was granted anonymity to offer candid views about tensions within the party. “Well-meaning ideas have gone too far, and we need a sensible approach.”

The White House is banking on the idea that voters will reward them for public efforts to crack down on immigration and boost spending on law enforcement — and, perhaps as importantly, that the liberal forces that so effectively moved the party away from those planks in 2020 won’t punish the president come November.  Inside the West Wing, senior counselor Steve Ricchetti has been among the leading voices making this case, while also advocating for more toughness on the border, according to the Biden official and one other, both granted anonymity to discuss private conversations.

But the president has not needed much convincing, the officials said, having personally favored an approach that emphasizes more traditional support for law enforcement alongside criminal justice reforms. Biden spent much of his half century in politics as an ardent advocate for law enforcement and anti-crime measures, a reputation that complicated his path to the 2020 Democratic nomination amid scrutiny over his role in passing a controversial 1994 crime bill.

"The 'Red' vs. 'Blue' Crime Debate and the Limits of Empirical Social Science"

The title of this post is the title of this notable new Issue Brief from the Manhattan Institute authored by George Borjas and Robert VerBruggen. Here is how it gets started:

For the past two years, several think tanks on opposite sides of the political divide have waged war over whether “red” or “blue” America has a worse crime problem.  Commentators on the left have pointed out that red states have higher homicide rates than blue states, while those on the right have noted that the relationship is more nuanced and can easily flip at a more local level: red-state crime problems are often concentrated in blue cities, and red counties have lower murder rates than blue counties.

In this brief, we do two things.

First, we highlight this debate as an example of how seemingly minor research decisions — such as whether to analyze data at the state or at the local level — can drastically change results.  If we look at the county level, Democratic areas seem particularly murder-ridden; but when we look at the state level, Republican states are clearly more violent.  Casual consumers of empirical social science research often fail to appreciate all the ways in which researchers can manipulate the data to say whatever they want.

Second, we want to move the debate forward by showing how the correlation between crime and partisanship changes after adjusting for differences in social characteristics that could affect both crime rates and partisanship, such as the age, income, and racial composition of the region.  Previous analyses have sometimes noted the importance of these potential confounders, but few have addressed the problem clearly and compellingly.

The upshot is that models with control variables — in other words, models that compare states or counties with roughly similar demographic and economic characteristics — tell a much less spectacular story than those without. In fact, by adjusting for differences in basic demographic and economic characteristics, we can easily make the red–blue difference in homicide rates disappear.  Perhaps further research with more advanced and complex designs could make additional progress on the question.  However, given the sensitivity of the conclusions to how the researcher chooses to analyze the data, we suspect that such effort would be better spent studying and debating concrete policies, as opposed to figuring out which political party has the most violent constituents.

The authors of this issue brief also have this short City Journal piece headlined "More Crime Analysis, Less Crime Politics: Both sides of the debate manipulate data for their own purposes."  It starts this way:

Since crime spiked in 2020, politicians and pundits have scrambled to figure out what they think is the root problem: whether Republicans or Democrats are more to blame.

Conservatives blame soft-on-crime policies in big cities, noting that many Democratic-run cities have long suffered from high crime rates and that many such places experienced particularly large spikes over the past four years. Liberals counter that, at the state level, it’s Trump-voting states that have higher murder rates, which they largely blame on irresponsible gun laws.

In a new Manhattan Institute brief, we try to calm things down a bit — and urge those worried about crime to think about which policies work, not about whether the politicians implementing them happen to be Democrats or Republicans.

"Redistributing Justice"

The title of this post is the title of this new article now available via SSRN authored by Benjamin Levin and Kate Levine. Here is its abstract:

This Article surfaces an obstacle to decarceration hiding in plain sight: progressives’ continued support for the carceral system.  Despite increasingly prevalent critiques of criminal law from progressives, there hardly is a consensus on the left in opposition to the carceral state.  Many left-leaning academics and activists who may critique the criminal system writ large remain enthusiastic about criminal law in certain areas — often areas where defendants are imagined as powerful and victims as particularly vulnerable.

In this Article, we offer a novel theory for what animates the seemingly conflicted attitude among progressives toward criminal punishment — the hope that the criminal system can be used to redistribute power and privilege.  We examine this redistributive theory of punishment via a series of case studies: police violence, economic crimes, hate crimes, and crimes of gender subordination.  It is tempting to view these cases as one-off exceptions to a general opposition to criminal punishment.  Instead, we argue that they reflect a vision of criminal law as a tool of redistribution — a vehicle for redistributing power from privileged defendants to marginalized victims.

Ultimately, we critique this redistributive model of criminal law.  We argue that the criminal system can’t redistribute in the egalitarian ways that some commentators imagine.  Even if criminal law somehow could advance some of the redistributive ends that proponents suggest, though, our criminal system would remain objectionable.  The oppressive and inhumane aspects of the carceral state still would be oppressive and inhumane even if the identity of the defendants or the politics associated with the institutions shifted.

"Red Codes, Blue Codes? Factors Influencing the Formulation of Criminal Law Rules"

The title of this post is the title of this new paper now available via SSRN authored by Paul Robinson, Hugh Rennie and Clever Earth. Here is its abstract:

The U.S. appears to be increasingly politically divided between “red states” and “blue states,” to the point that many serious public voices on both sides are urging that the country seriously consider separating along a red-blue divide.  A range of stark public disagreements over criminal law issues have fed the succession movement.  Consider obvious examples such as abortion, decriminalization of marijuana, “stand your ground” statutes, the death penalty, and concealed weapon carry laws.  Are red and blue values so fundamentally different that we ought to recognize a reality in which there exists red codes and blue codes?

To answer that question, this study examined the criminal codes of the six largest deep red states and the six largest deep blue states — states in which a single political party has held the governorship and control of both legislative bodies for at least the past three elections.  It then identified 93 legal issues on which there appeared to be meaningful difference among the 12 states’ criminal law rules.  An analysis of the patterns of agreement and disagreement among the 12 states was striking.  Of the many thousands of issues that must be settled in drafting a criminal code, only a handful — that sliver of criminal law issues that became matters of public political debate, such as those noted above —  show a clear red-blue pattern of difference.

If not red-blue, then, what does explain the patterns of disagreement among the 12 states on the 93 criminal law issue?  What factors have greater influence on the formulation of criminal law rules than the red-blue divide?

The Article examines a range of possible influences, giving specific examples that illustrate the operation of each: state characteristics, such as population; state criminal justice characteristics, such as crime rates; model codes, such as the ALI’s Model Penal Code; national headline events, such as the attempted assassination of President Reagan; local headline cases that over time grow into national movements, such as Tracy Thurman and domestic violence; local headline cases that produced only a local state effect; the effect of legislation passed by a neighboring state; and legislation as a response to judicial interpretation or invalidation.

In other words, not only is the red-blue divide of little effect for the vast bulk of criminal law, but the factors that do have effect are numerous and varied.  The U.S. does not in fact have red codes and blue codes.  More importantly, the dynamics of criminal law formulation suggest that distinctive red codes and blue codes are never likely to exist because the formulation of most criminal law rules are the product of a complex collection of influences apart from red-blue.

Notable new Gallup polling on views about legal treatment of teens who commit violent crimes

Gallup released this new story about its latest polling on the treatment of juvenile offenders under the headline "Americans Divided on Treatment of Violent Juvenile Offenders."  Here are excerpts:

Americans divide evenly on whether the criminal justice system should treat teens who commit violent crimes the same as adults (46%) or give more lenient treatment in juvenile courts (47%).  This marks a shift in attitudes from two decades ago, when majorities of 65% in 2000 and 59% in 2003 felt juveniles aged 14 to 17 who commit crimes should be treated the same as adult criminals.

The latest results are from Gallup’s annual Crime survey, conducted Oct. 2-23.  The issue of how violent juveniles should be treated is increasingly relevant given the increase in mass shootings, particularly at U.S. schools, with the majority of K-12 school shootings perpetrated by children under age 18....

The views of Democrats, independents and younger adults have changed more than the opinions of Republicans and older adults.  However, all key subgroups show some movement away from believing that violent juvenile offenders should be treated the same as adults.  In fact, in 2000, the various political party and age subgroups generally held similar views, with between 60% and 68% of each believing juveniles should be treated the same as adults.

As a result of the disproportionate changes in opinion, Democrats and adults under age 50 now come down on different sides of the debate than Republicans and older Americans do.  Majorities of Democrats (61%) and adults under age 50 (56%) believe 14- to 17-year-olds who commit violent crimes should get more lenient treatment in a juvenile court, while majorities of Republicans (59%) and adults over age 50 (53%) believe such teens should be treated the same as adults. Political independents are evenly divided on the issue.

College graduates tend to believe juveniles should get more lenient treatment in the justice system, while those without a college degree tend to think juveniles should be treated like adults.  Parents of children under 18 (54%) are more likely than non-parents (45%) to favor teens receiving more lenient treatment in juvenile court....

Criminal justice statistics indicate that fewer young offenders are being tried as adults today than in the past.  Many states with separate juvenile justice systems have changed laws so children under age 18 are no longer automatically charged as adults for certain crimes.  Those laws may have changed because of a new understanding of adolescent development, a greater realization of the role poor mental health can play in teen criminal activity, and the possibility that young people with a criminal history can be rehabilitated.

Prison Policy Initiative sets out long list of "Winnable criminal justice reforms" for state systems

Prison Policy Initiative has produced this new 16-page document titled "Winnable criminal justice reforms: A Prison Policy Initiative briefing on promising state reform issues for 2024."  I believe this kind of publication is now an annual production by PPI, and this year's version lists 32 suggested reforms.  Here is how the report describes its mission, followed by links to the main reform areas identified:

In this year’s guide to winnable criminal justice reforms, we’ve added information on how Medicaid and Medicare laws can be changed to better serve people in reentry, and we’ve added a section on efforts around the country to legalize marijuana and decriminalize other drugs.  As always, we’ve also updated our list of Winnable criminal justice reforms and added new example bills and resources where you can learn more.

While this briefing is not intended to be a comprehensive platform, we’ve curated this list to offer policymakers and advocates straightforward solutions that would have the greatest impacts on reducing incarceration and ameliorating harms experienced by those with a conviction history, without further investments in the carceral system.  We have also included some talking points and resources that can be used to push back when carve-outs to criminal justice reforms (that is, categorical exclusions of people who would benefit from reforms) are being discussed.

Because each state’s criminal legal system varies so much — from law and procedures, the data collected, and even how the same words are defined — it can be difficult to apply lessons from other states to the same problem in one’s own.  This guide is designed to facilitate the sharing of ideas and information across states.  That said, while we point to multiple bills, model legislation, and regulations in this document, we also recognize that many of these examples reflect compromise and could be strengthened or made more comprehensive.  This information is intended to serve as a resource as you determine which problems are a priority in your state and which lessons from elsewhere are most useful.

The reforms focus on nine areas:

• Expanding alternatives to criminal justice system responses to social problems
• Reducing the number of people entering the “Revolving doors” of jails and prison
• Improving sentencing structures and release processes to encourage timely and successful releases from prison
• Reducing the footprint of probation and parole systems and supporting success on supervision
• Protecting incarcerated people and families from exploitation
• Promoting physical and mental health among incarcerated and formerly incarcerated people
• Giving all communities equal voice in how our justice system works
• Setting people up to succeed upon release
• Eliminating relics of the harmful and racist “war on drugs”

Sharp uptick in view that US criminal justice system is not tough enough in latest Gallup polling

As reported in this recent Gallup release, a "58% majority of Americans think the U.S. criminal justice system is not tough enough in its handling of crime, marking a sharp reversal from the prior reading in 2020 when a record-low 41% said the same.  Another 26% of U.S. adults currently say the system is about right, while 14% think it is too tough."  Here is more:

The latest readings on this measure, from Gallup’s Oct. 2-23 annual Crime survey, mark the sixth time the question has been asked since 1992. The three readings between 1992 and 2003 found solid majorities of Americans, ranging from 65% to 83%, saying the criminal justice system was not tough enough on crime. Yet, the next time the question was asked, in 2016, less than half of U.S. adults thought the system needed to be tougher and nearly as many said it was about right....

Majorities of Republicans and Republican-leaning independents have consistently called for the criminal justice system to be tougher across all years, but the percentages of Democrats and Democratic-leaning independents holding the same opinion have ranged from 25% to 62%. Democrats' view that the system is too tough has been between 6% and 35%.

In the current survey, three-quarters of Republicans think the criminal justice system is not tough enough, 16% say it is about right, and 7% believe it is too tough. Democrats are more divided in their views, with a 42% plurality saying it is not tough enough, 35% about right and 20% too tough....

The latest poll also finds Americans are evenly divided in their views of whether people accused of committing crimes are treated fairly by the criminal justice system.  Equal 49% shares of U.S. adults say such suspects are treated very or somewhat fairly and very or somewhat unfairly.  This marks a significant shift in opinion compared with prior readings in 2000 and 2003, when two-thirds of Americans said criminal suspects were treated at least somewhat fairly.

While majorities of Republicans (55%) and White adults (53%) believe that criminal suspects are treated fairly, majorities of Democrats (55%) and people of color (56%) think they are treated unfairly.  The percentages of Republicans and Democrats who say suspects receive fair treatment are both 18 percentage points lower than in 2003. Similarly, White adults (by 15 points) and people of color (by 18 points) are less likely now than in 2003 to believe suspects are treated fairly.

When asked which should be the greater priority for the U.S. criminal justice system today, 55% of Americans favor strengthening law and order through more police and greater enforcement of the laws, while 42% prefer reducing bias against minorities by reforming court and police practices.  When this question was last asked in 2016, just under half of Americans favored strengthening law and order.

People of color are more likely to say reducing bias against minorities (52%) should be prioritized over strengthening law and order (44%), while White adults tilt the opposite way, with 60% favoring strengthening law and order and 38% favoring reducing bias. Meanwhile, 71% of Democrats prefer reducing bias against minorities, and Republicans strongly favor strengthening law and order (82%).

Although a majority of Americans say it should be a priority, strengthening law enforcement is not viewed as a surefire way to lower the U.S. crime rate.  Rather, nearly two-thirds of Americans think it would be more effective to put money and effort toward addressing social and economic problems such as drug addiction, homelessness and mental health, while 35% favor bolstering law enforcement.  Those views are essentially unchanged from 2020 when the question was last asked.

Relatedly, the Gallup folks also report here that "Sixty-three percent of Americans describe the crime problem in the U.S. as either extremely or very serious, up from 54% when last measured in 2021 and the highest in Gallup’s trend." Here is more:

The prior high of 60% was recorded in the initial 2000 reading, as well as in 2010 and 2016. Meanwhile, far fewer, 17%, say the crime problem in their local area is extremely or very serious, but this is also up from 2021 and the highest in the trend by one point over 2014’s 16%....

Public perceptions of the national and local crime problems have been worsening since 2020, when 51% thought the U.S. crime problem was extremely or very serious, and 10% said the same of the local crime problem.

Former Prez Trump again talking up the death penalty as a way to address drug problems

Back in March 2018, as noted in this post, then Prez Donald Trump started talking up the idea of the death penalty for drug dealers as part of his stump speeches.  Way back then, I noted that constitutional questions about any such law would be sure to reach the Supreme Court and also that, at that time, there had not been any federal execution for well over a decade.  I also noted that the then-GOP-controlled Congress was working on a sentencing reform bill that could have been a vehicle for adding his Trump's capital sentencing idea.  

Fast forward five+ years, and now Prez-candidate Donald Trump is again talking up the idea of the death penalty for drug dealers as part of his stump speeches.   This Hill article, headlined "Trump doubles down on death penalty for drug dealers," explains:

Former President Trump doubled down on calling for the death penalty for drug dealers Saturday. “President Xi in China controls 1.4 billion people, with an iron hand, no drug problems, you know why they have no drug problems?” Trump said at a campaign event in New Hampshire Saturday. “Death penalty for the drug dealers.”

“You want to solve your drug problem, you have to institute a meaningful death penalty for… a drug dealer,” the former president continued.

This isn’t the first time the former president has called for the death penalty for drug dealers.  Back in June, Trump notably advocated for drug dealers getting the death penalty in a Fox News interview, despite the fact it would have applied to Alice Johnson, a woman whose sentence Trump commuted in 2018.

Though I consider Trump's comments to be more political posturing than policy proposal, I am struck by how the legal landscape has changed since I was commenting about these ideas back in March 2018.  With Justices Kennedy and Ginsburg replaced by (Trump-appointees) Justices Kavanaugh and Barrett, the current Supreme Court seems much more likely to uphold broader applications of the federal death penalty.  I make that statement in part because these Justices expressed no concerns about the 13 federal executions that were carried out in the final six months of Trump's presidency.  And, of course, the sentencing reform bill I was talking about in March 2018 became the FIRST STEP Act that was signed into law by Trump toward the very end of that year.  (Might Trump sometime start describing his "Death penalty for the drug dealers" proposal as a second step in sentencing reform?)     

Prior related posts from 2018:

• Prez Trump reportedly "would love to have a law to execute all drug dealers here in America"
• Prez Trump talks up "very strong" criminal penalties "with respect to the pushers and to the drug dealers" 
• Notable report of AG Sessions seeking more federal death sentences, but what about carrying out those long ago imposed? 

Intriguing numbers in latest Gallup polling on US views on the death penalty

Gallup yesterday released this report, headlined "New 47% Low Say Death Penalty Is Fairly Applied in U.S.," which discusses the results of its latest polling about capital punishment views in the United States.  Here is some of the descriptions of the results:

For the first time since Gallup started asking about the fairness of the death penalty's application in the U.S. -- a trend that dates back to 2000 -- more Americans say it is applied unfairly (50%) than fairly (47%). This represents a five-point increase in the percentage who think it is applied unfairly since the prior measurement in 2018.

From 2000 through 2015, between 51% and 61% of Americans thought capital punishment was used fairly in the U.S., but since 2016, readings on the measure have averaged 49%. The latest reading is from Gallup’s annual Crime survey, conducted Oct. 2-23.

Solid majorities of Republicans since 2000 have consistently said the death penalty is fairly applied, including 68% currently. Meanwhile, Democrats have been far less likely to say the death penalty is applied fairly, barely reaching the majority level twice -- in 2005 and 2006. The current 28% reading among Democrats is the lowest for the group, while independents’ 46% reading ties their lowest, from 2000.

Gallup first asked Americans whether they supported the death penalty for convicted murderers in 1936 and found 59% favoring it. With the exception of several readings between 1957 and March 1972, including the record-low 42% in 1966, majorities have supported it since then.

Even after the U.S. Supreme Court ruled the death penalty unconstitutional in June 1972, majorities continued to back it, and after it was reinstated in 1976, public support for it grew, eventually peaking at 80% in 1994. At least 60% of U.S. adults favored capital punishment until 2017, when support dipped below that level. The current 53% of Americans who favor the death penalty is the lowest since 1972, though it is not statistically different from 54% and 55% readings over the past three years.

Partisans' views of the death penalty continue to differ sharply, with most Republicans (81%) and a slim majority of independents (51%) favoring it, but most Democrats (65%) opposing it. The 32% of Democrats who currently support capital punishment for murderers is the lowest in Gallup’s trend. Support for the death penalty in 2023 among independents and Democrats falls well below these groups' recent averages of 60% and 48%, respectively, while Republican support is similar to the 79% average.

A separate question gauging Americans’ opinions of how frequently the death penalty is imposed finds that 39% think it is not used often enough and equal 28% shares saying it is used too often and not enough. This general pattern -- whereby a plurality or majority think capital punishment is not used enough, while smaller percentages are divided between thinking it is used about the right amount or too often -- has been the case since the inception of this Gallup trend question.

New Heritage report asserts "Red State Murder Problem Becomes the Blue County Murder Problem"

The Heritage Foundation today released this new report authored by Kevin Dayaratna and Alexander Gage which responds to prior reports about murder rates in "red" and "blue" states.  Here is the summary of this new report:

In January 2023, the Third Way think tank published a report claiming that homicide rates have been higher in “red” states than in “blue” states for the past 20 years. The argument is critically flawed in a number of ways. First, the report’s authors fail to acknowledge that crime is a local phenomenon and that any meaningful analysis needs to be undertaken at the local level. Second, the authors neglected to mention the fact that the electoral map changes over time. States that were “red” and “blue” in 2020 did not necessarily vote the same way in prior years. Correcting for these errors shows that crime has been higher in blue counties than in red counties.

Here is part of the report's analysis:

The Third Way authors claim that there is a difference between the murder rates in “red” states and “blue” states. Averaging these rates between the years 2014 and 2020 across states that voted for Donald Trump during the 2020 election yields an aggregate homicide rate of 6.48 per 100,000 people, while averaging across states that voted for Joe Biden yields a homicide rate of 4.83 per 100,000 people.

However, drawing conclusions from state-level homicide data in such a manner is flawed, as each state consists of a combination of federal, state, county, and local law enforcement agencies, as well as prosecutors with different approaches to law enforcement often based on highly divergent political beliefs.  Violations of state law are prosecuted largely at the county or city level and, thus, amalgamating data across such units neglects important variation in these different approaches.  Looking at homicide rates by county, states show skewed distributions with many counties having little or no homicides, and a handful of counties with excessively high homicide rates.  Thus, state homicide rates can be heavily influenced by a few counties. When those counties have different politics from the rest of the state, it can flip the conclusion about the association between political identifications and homicides.

As a result, after averaging homicide rates across counties during the same time horizon, a markedly different story from the Third Way’s narrative emerges.  Averaging across all counties that voted for Donald Trump yields an aggregate homicide rate of 4.06 per 100,000 people, while averaging across counties that voted for Joe Biden yields a homicide rate of 6.52 per 100,000 people.

Prior related post:

• New Third Way report details "The Red State Murder Problem" 

New CAP report asserts "Cities in Blue States Experiencing Larger Declines in Gun Violence in 2023"

Yesterday, the Center for American Progress Action Fund released this new report which it claims "shows that, on average, cities in blue states have lower rates of gun homicides and shooting incidents than comparably sized cities in red states and are seeing larger single-year decreases in gun violence rates in 2023."  Here is the report's "Introduction and Summary" (with footnotes removed):

Gun violence anywhere is unacceptable. Yet increasingly, Americans are forced to grieve the unimaginable horrors of school and hate-motivated shootings in innocent communities, in addition to the daily occurrence of gun violence across the United States.  It is no wonder that Americans see gun violence as a top issue for Congress.  To stop gun violence in this country, every lawmaker at every level of government must come together to pass commonsense gun laws and stop violence before it happens.  Unfortunately, this has not been the case.

Even though gun violence is an epidemic — touching the lives of Americans everywhere — instead of passing stronger gun laws, Republican leaders are choosing to weaponize the issue for political gain by using misinformation to stoke fears of “Democrat-controlled” cities.  In 2022, for example, after a shooter took the lives of 19 children and two teachers at Robb Elementary School in Uvalde, Texas, Gov. Greg Abbott (R-TX) claimed that gun violence in the cities of New York, Los Angeles, and Chicago is evidence that tougher gun laws are “not a real solution.”  Similarly, despite evidence that New York City actually has relatively low rates of gun violence when controlling for its size, in April 2023, Rep. Jim Jordan (R-OH) used his powers as the House Judiciary Committee chair to hold a field hearing on violent crime in Manhattan to disrepute Manhattan District Attorney Alvin Bragg after Bragg brought charges against former President Donald Trump.  These examples demonstrate a larger coordinated effort by conservatives to make violent crime a “Democrat” issue while at the same time diverting attention from their own public safety failures to address gun violence, including neglecting to make it harder for individuals with violent intentions to obtain a gun.

However, despite the millions of dollars spent on this misinformation campaign, the data on gun violence homicides in America paint an entirely different picture. Original analysis conducted by the Center for American Progress Action Fund on the 300 most populous U.S. cities comparing gun homicide rates from January 2015 to August 2023 finds that, after controlling for population size:

• Cities in blue states, based on how a state voted in the 2020 presidential election, are consistently safer from guns than cities in red states, regardless of which party is represented in city leadership.
• From 2018 to 2021, red-state cities experienced larger increases in gun violence rates than blue-state cities.
• In 2023, blue-state cities are experiencing larger declines in gun violence rates than red-state cities.

Not only do blue-state cities on average experience lower rates of gun violence in each year of the study, but now, gun violence rates appear to be decreasing faster on average in these cities than in red-state cities.  Put simply, the data do not back up the blame-game politics of Republican lawmakers such as Texas Gov. Abbott and Rep. Jordan.

Canvassing GOP discussion and perspectives on criminal justice reform in run up to 2024

This new Time piece, headlined "DeSantis Moves to Trump's Right on Criminal Justice," provides an interesting overview of how GOP candidates and GOP voters are looking at criminal justice issues.  I recommend the full piece, and here are excerpts:

DeSantis’ move to the right on criminal justice reform in part reveals that violent crime can be a fruitful focus for Republican primary candidates, and allows him to draw a contrast with Trump, the current frontrunner in the race. Amid DeSantis’ pressure, Trump has begun backing away from what he used to tout as a major legislative victory. When Fox News asked Trump in June about sentencing reform, he spoke of a new proposal to punish drug dealers with the death penalty.

Yet DeSantis’ position is more extreme than the views of most Republican primary voters, experts say.  “Right now, the political rhetoric may be tough, but that doesn’t change where the base is,” says Micah Derry, CEO of the Adams Project, which is focused on conservative criminal justice reform.  ”That’s important for people to understand — that the base hasn’t moved.  They want a safe community, to support law enforcement, want people held accountable, and they want to know that there is a pathway for rehabilitation.”

The Adams Project published a poll on July 6 examining conservative views on safety and crime.  More than 80% of focus group participants supported the idea that a criminal justice system must allow incarcerated people to “have the chance to get the skills and training necessary to pursue a better path after prison.”  It also found that GOP voters responded negatively to messages that attack the First Step Act, noting that the provisions “almost perfectly matched” or were “pretty close” to views of 86% of Republicans.  Focus group members referred to them as “attacks on Trump” and “political posturing.”  Many focus group members viewed the traditional “tough-on-crime” approach as dated and out of touch and emphasized the importance of second chances....

Not all criminal justice reform has been popular with Republicans, especially measures tied to defunding the police, bail reform, or shortening long sentences even for violent offenders.  But proposals tied to the idea of second chances and helping people who have been incarcerated transition back into society have gotten more support.

Can and will GOP leaders persistently attack both federal criminal justice and federal criminal justice reform?

Two new headlines this morning focused on two different aspects of federal criminal justice and the activities of former Prez Donald Trump prompt the question in the title of this post.  These two pieces are worth reading in full, but here are the complete headlines, links and key paragraphs:

From The Spectator, "The GOP is sprinting away from criminal justice reform: The nation’s violent crime wave has changed the conversation":

In the five years since it hit the president’s desk, ... the First Step Act has become a source of controversy within the Republican Party. Members of the GOP are reticent to appear soft on crime as America’s major cities undergo a post-pandemic crime wave and progressive members of the Democratic Party advocate for defunding the police and installing left-wing prosecutors who are keen on giving second — or third, or fourth — chances to criminals.  Trump has hardly talked about the landmark legislation on the 2024 campaign trail, and his primary opponents have started to use it as an attack line, as proof that they are the true law-and-order candidates....

The GOP’s abandonment of criminal justice reform is likely a welcome change for tough-on-crime mainstays like Senators Tom Cotton and John Kennedy, who voted against the First Step Act, while the libertarian wing of the party will be vexed.  The real story will be in how these internal fights are received by primary voters, as 80 percent of Republicans said crime is a real threat in communities in a March NPR poll.  Which primary candidates can run the fastest from the perception that they might be gracious to criminals?

From the Washington Post, "Republicans slam law enforcement over Trump indictment, showing shift in GOP: Many in the party have sought to discredit the integrity of federal agencies that have investigated and charged the former president, marking another step away from the GOP’s longtime positioning": 

Polling from Pew Research Center suggests that the GOP attacks on the FBI and the Justice Department have had an effect.  Only 38 percent of Republican and Republican-leaning adults said they viewed the FBI favorably in a survey released in March; and about 40 percent of those respondents viewed the Justice Department favorably.  Although Pew’s older data is not comparable to the 2023 survey because of changes in survey mode and the wording of questions, one earlier survey showed that before Trump took office, most Republicans had a positive view of the FBI.

Trump has set the tone for the invective against federal law enforcement agencies.  Shortly after the FBI search of Mar-a-Lago last year, he called the FBI and Justice Department “vicious monsters” and scoundrels.

In political speeches over the weekend, he said the FBI and the Justice Department were “corrupt” and alleged that Biden “is trying to jail his leading political opponent”....  In April, Trump called on the Republican-led Congress to defund the FBI and the Justice Department — a day after he was arraigned in Manhattan on separate charges.

For a variety of reasons, I suspect we will continue to see at least some GOP leaders continuing to attack both federal criminal justice (going after Trump's federal prosecution) and federal criminal justice reform (going after Trump's FIRST STEP support). But I am quite unsure how all these attacks might echo through and impact the politics and policies of federal criminal justice reform debates in the coming months and years as we approach another big federal election. 

Ultimately, I find it fascinating that Trump is now the nation's highest profile criminal defendant, in both state and federal courts (and also has already been found liable for a tortious sex offense), and yet he is still the most popular figure in the supposed "law and order" party.  Go figure.

New GOP Prez candidate DeSantis pledges to repeal FIRST STEP Act

I noted in this post a few month ago a press report that Florida Gov Ron DeSantis was planning to assail former Prez Trump for his support of the FIRST STEP Act back in 2018. And, sure enough, with days of announcing his candidacy for President, Gov DeSantis has attacked Trump's signature criminal justice reform achievement. This Fox News piece, headlined "Ron DeSantis rips Trump over First Step Act, vows to repeal it: 'Basically a jailbreak bill'," provides these details:

Republican presidential candidate and Florida Gov. Ron DeSantis vowed Friday to seek a repeal of President Trump's signature First Step Act, a bipartisan criminal justice reform bill that aimed to reduce recidivism, allowed a pathway for non-violent prisoners to shorten their sentences, and reduced mandatory minimum sentences.

"Under the Trump administration — he enacted a bill, basically a jailbreak bill, it's called the First Step Act. It has allowed dangerous people out of prison who have now re-offended, and really, really hurt a number of people," DeSantis said in an interview with the Daily Wire.

"So one of the things I would want to do as president is go to Congress and seek the repeal of the First Step Act. If you are in jail, you should serve your time. And the idea that they're releasing people who have not been rehabilitated early, so that they can prey on people in our society is a huge, huge mistake," he added.

DeSantis voted for the first version of the bill as a member of the House of Representatives in 2018, the same year he was elected as Florida's governor, but had resigned before the final, more moderate version of the bill came to a vote in the chamber.

Trump's campaign responded to DeSantis by pointing to his original vote, and argued he was basically criticizing his own supporters in Congress who also voted for the bill. "Lyin' Ron. He voted for the First Step Act. Would be a shame if there was video of him praising it in an interview with a local FL television station..." Trump campaign spokesperson Stephen Cheung tweeted following the DeSantis' interview.

"DeSantis supporter [Rep. Thomas Massie, R-Ky.] voted for the bill as well. DeSantis is calling out his own Congressional supporters and throwing them under the bus," he later added in a separate tweet.

Could former Prez Trump's indictment have a salutary impact on how the far left views prosecutors and on how the far right views defendants?

I expect to mostly avoid blogging much about the criminal prosecution (or prosecutions) of former Prez Donald Trump unless and until sentencing issues arise, in part because there will be plenty of coverage in plenty of other legal spaces.  (Of course, as prosecutors and defense attorneys know well, in any criminal case that could be resolved through a plea, sentencing-related considerations should be on lawyers' minds even before an indictment.  But I surmise the prospects of a guilty plea by Trump to the charges he is now facing in New York are, at least right now, quite low.)

That all said, against the backdrop of former Prez Trump's indictment, I was struck by a passage in this new Washington Post op-ed by a 3L at Stanford Law School lamenting the polarization she see among classmates in her law school environment:

The far-left students have a dismissive shorthand for fellow students whose politics they consider not sufficiently progressive: “future prosecutors.”  The message is loud and clear — prosecutors are the bad guys.  But also: Be careful what you say.

I often think of one of my first-year professors, who was appalled by these students’ stigmatizing of the prosecutorial role.  He asked one: Given that prosecutors decide whether and what charges to bring against a defendant, isn’t it preferable for well-qualified people to fill the role?  Without missing a beat, the student responded: No, being a prosecutor is simply evil.

Two years later, students in evidence class are clearly aware of the stigma.  When two students are given a choice to explain from the perspective of a prosecutor or defense attorney how certain evidence should be entered into the record, the first student almost invariably opts for defense attorney; then the other student makes a joke or a comment signaling displeasure at being stuck with the role of prosecutor.  Just about the only time someone chooses to play prosecutor is for a murder or rape case.

For starters, I am quite pleased to report that I do not see such extreme polarization or demonization of prosecutors at The Ohio State University Moritz College of Law.  For many years, I have had students readily volunteer in my role plays as prosecutors and defense attorneys in a range of cases and settings.  And I regularly (and enthusiastically) advise any number of students who are eager to become prosecutors after they graduate.  I fear Stanford Law is not a complete outlier with the student dyanmics described in this op-ed, but I know these dynamics do not define all law schools.

And, ever eager to see silver linings in all kinds of clouds, this passage about far-left biases against prosecutors got me to thinking about how Trump's legal woes might reshape criminal justice valences on both the left and the right.  We have already see this playing out to some degree with the January 6th criminal defendants, who are getting visits and other form of support from GOP legislators and other far-right supporters.  In turn, we surely should not expect students at Stanford Law (or other far-left voices) to be calling Manhattan DA Alvin Bragg or any other prosecutor investigating former Prez Trump "simply evil" anytime soon.  The reshaping of far-left perceptions of prosecutors in this context may come not only from Trump investigations, but also from the eagerness of some far-right folks to be calling DA Bragg "evil."   

The WaPo op-ed concludes by expressing some hope that more law students will make more efforts in the classroom to advance the "thoughtful exchanging of views that is essential to the legal profession."   And I will conclude this post hoping that not everyone thinks I am crazy to hope that former Prez Trump's indictment might possibly reduce rather than increase a form of extremism that can harm law school and the legal profession more broadly.

Florida Gov DeSantis reportedly gearing up to attack former Prez Trump for his support of FIRST STEP Act

This notable and lengthy new New York Times article, headlined "DeSantis Burnishes Tough-on-Crime Image to Run in ’24 and Take On Trump," reports that Florida's Governor plans to assail former Prez Trump for his record on crimnal justice reform. Here are excerpts:

Gov. Ron DeSantis of Florida has spent months shoring up a tough-on-crime image as he weighs a run for the White House, calling for stronger penalties against drug traffickers and using $5,000 bonuses to bolster law-enforcement recruitment to his state.  Now, Mr. DeSantis and his allies plan to use that image to draw a contrast with the Republican front-runner in the 2024 race, former President Donald J. Trump.

Mr. DeSantis and his backers see the signature criminal-justice law enacted by Mr. Trump in 2018 as an area of weakness with his base, and Mr. DeSantis has indicated that he would highlight it when the two men tussle for the Republican nomination, according to three people with knowledge of Mr. DeSantis’s thinking.  That law, known as the First Step Act, reduced the sentences for thousands of prisoners....

One potentially complicating factor for Mr. DeSantis: He voted for the initial House version of the First Step Act in May 2018, while still a congressman.  He resigned his seat in September 2018 after winning the Republican primary for governor, and was not in the House to vote for the more expansive version of the sentencing reform bill that ultimately passed into law in December 2018....

In January, Mr. DeSantis announced a series of legislative measures for the coming session in Florida, which, among other actions, would toughen penalties against drug traffickers. “Other states endanger their citizens by making it easier to put criminals back on the street. Here, in Florida, we will continue to support and enact policies to protect our communities and keep Floridians safe,” Mr. DeSantis said in a statement at the time. “Florida will remain the law-and-order state.”...

Mr. Trump is aware of his vulnerability on the crime issue because of his record as president, according to people close to him.  Shortly after leaving office he began trying to inoculate himself against attacks by promising an uncompromising law-and-order agenda, with especially harsh treatment of drug dealers.

In a speech last year at the Ronald Reagan Presidential Library, Senator Tom Cotton, an Arkansas Republican who was a staunch supporter of most of Mr. Trump’s agenda but a critic of the First Step Act, called Mr. Trump’s moves on criminal justice reform the “worst mistake” of his term.

Since becoming a candidate for the third time in November, Mr. Trump has released a handful of direct-to-camera videos discussing policy.  In one, he proposed strengthening police departments with additional hiring and criticized what he called “radical Marxist prosecutors who are abolishing cash bail, refusing to charge crimes and surrendering our cities to violent criminals.”  He also called for deploying the National Guard into areas with high crime rates.  But he did not address sentencing, the core of his surprisingly lenient approach in office — and one that was at odds with his law-and-order campaign talk.

Asked to comment, Steven Cheung, a spokesman for Mr. Trump’s campaign, described Mr. Trump as “the law-and-order president that cracked down on crime and put away violent offenders, resulting in the lowest crime rate in decades.” Mr. Cheung accused Mr. DeSantis of giving “a safe haven for violent felons” that has resulted “in rampant crime in Florida” and said that Mr. Trump had received support from law enforcement officials around the country. And Mr. Cheung pointed to an array of crime statistics in Florida that the Trump campaign planned to highlight as unfavorable for Mr. DeSantis.

As president, following the advice of his son-in-law and senior adviser, Jared Kushner, in December 2018, Mr. Trump signed the First Step Act, which resulted in more than 3,000 inmates being released early from federal prison.  A Republican official who is not affiliated with Mr. DeSantis and who has closely tracked criminal recidivism among people released from prison because of the First Step Act, said that the volume of those releases would provide fodder for attack ads against Mr. Trump.

On Wednesday, Pedro L. Gonzalez, a conservative with a large online following who often attacks Mr. Trump from the right and defends Mr. DeSantis, tweeted that the man charged with assaulting a U.S. Senate staff member over the weekend was “released from prison thanks to Trump’s First Step Act” and linked to a Fox News story about the case. Many of those released under the First Step Act had been imprisoned for selling drugs — a crime that Mr. Trump now says publicly that he wants to punish with the death penalty because of the destruction wrought by illegal drugs....

“Did it for African Americans. Nobody else could have gotten it done,” Mr. Trump wrote in response to a reporter’s question in 2022, adding, “Got zero credit.” The word “zero” was underlined for emphasis. But in June 2020, as Americans massed on the streets to protest the police killing of George Floyd, Mr. Trump told his aides privately, according to Axios, that it was a mistake to have listened to Mr. Kushner....

In his final six months in office, Mr. Trump was erratic in his criminal justice policies. He went on a historic federal execution spree. But he also went on a pardon spree — handing out many dubious pardons, including one to a drug smuggler with a history of violence, through a process heavily influenced by Mr. Kushner. And by the time Mr. Trump was plainly looking for a future in politics again in 2021, he began talking publicly about executing drug dealers.

An encouraging(?) account of prospects for modest criminal justice reforms from the current Congress

The Washington Post has this new small piece about happenings inside the Beltway with this big headline "Is there any chance for criminal justice reform bills? Surprisingly, yes."  Here is the heart of part of the discussion (with one line highlighted by me for follow-up):

So in this tense partisan atmosphere, is there any chance Congress could consider even modest change to the criminal justice system?

Well, certainly nothing big — or even a bill along the lines of the First Step Act, a law to cut some federal prison sentences that President Donald Trump signed in 2018.  But some lawmakers and outside advocates say there are still opportunities to pass more limited legislation to make the criminal justice system less punitive.

Lawmakers including Senate Judiciary Committee Chairman Richard J. Durbin (D-Ill.) and Sen. Lindsey O. Graham (S.C.), the committee’s top Republican, introduced a bill last month to eliminate the disparity in federal sentencing for trafficking crack and cocaine.  The bill passed the House on an overwhelming bipartisan vote in 2021 but died in the Senate.

And Reps. Kelly Armstrong (R-N.D.), David Trone (D-Md.), John Rutherford (R-Fla.) and Lisa Blunt Rochester (D-Del.) started a bipartisan task force last month to try to pass legislation to ease the barriers to prisoners reentering society when their sentences are up.  “There’s a ton of Republicans that just want to do the right thing,” Trone said in an interview on Tuesday before he spoke at a reception hosted by the conservative R Street Institute meant to build support for the legislation. “And there’s a minority of Republicans who live on the rhetoric of, ‘Let’s stop everything.’”

It’s too early to say whether any of the bills will pass.  But Jason Pye, who lobbied for the First Step Act while he was vice president of legislative affairs at FreedomWorks, a conservative group, said he thought Republicans could move legislation once House Republicans tire of passing other bills that stand no chance of clearing the Democratic-held Senate.  “As far as I’m concerned, this is one of the few areas where there is not only bipartisan consensus, but support [from across the Republican] conference to do something,” said Pye, who is now director of rule-of-law initiatives at the Due Process Institute.

Especially as we march toward a big election year, I am not sure that House Republicans are likely to ever "tire of passing other bills that stand no chance of clearing the Democratic-held Senate."  But I am sure that there are a range of (small?) federal criminal justice reform bill that could get to the desk of President Biden if serious folks on both sides of the aisle get seriously committed to actually getting something done.  In addition to the items noted above, for example, I continue to want to believe some form of mens rea reform could be a part of a bipartisan effort to make our fedeeral criminal justice system for fair and effective.

Is support for criminal justice reform in red states really still "strong"?

The question in the title of this post is prompted by this lengthy new Arnold Ventures piece titled "Red State Support for Criminal Justice Reform Remains Strong."  I recommend the piece in full, in part because it has plenty of notable content even though its contents do not fully support the title of the piece.  Here are some extended excerpts:

Partisans and pundits like to present criminal justice reform as an issue that pits red states against blue states.  But beyond the headlines, policymakers from both sides of the aisle are working to build a criminal justice system that is more effective, efficient, accountable, and just.  Even following the spike in crime during the Covid-19 pandemic, bipartisan commitment to criminal justice reform has remained remarkably robust — including leadership from conservative coalitions....

In North Carolina, Conservatives for Criminal Justice Reform (CCJR) has gained traction since its founding in 2016 and has advanced several pieces of reform legislation. Their first goal was raising the juvenile age so that a 16- or 17-year-old charged with a low-level felony or misdemeanor would not enter the adult court system.... Other wins included the General Assembly and Senate’s unanimous passage of the Second Chance Act in 2019, which allowed the expungement of nonviolent charges, and Senate Bill 300 in 2021, which was sponsored by three Republican state senators. That bill standardized police officer training and created a database to track uses of force resulting in death or serious injury....

Another organization aiming to reach both sides of the aisle is R Street Institute, a D.C.-based think tank.  Recently, the organization has worked on initiatives concerning the cost-saving success of police-led juvenile diversion programs and cite-and-release programs as an alternative to arrest....

Over the last decade, policy change around marijuana has progressed rapidly.  In November 2022, Maryland and Missouri voters approved ballot measures to legalize recreational marijuana, meaning that it is now legal in just under half of all states (and decriminalized in a majority of states).  Additionally, some of the remaining states are poised to reexamine their cannabis laws this year, including Pennsylvania, Hawaii, Texas, and Oklahoma.

Last October, Oklahoma Gov. Kevin Stitt — a Republican who has become a national leader in red state criminal justice reform — ordered a special election for State Question 820, which would have legalized recreational marijuana use. While the referendum ultimately failed, it garnered significant Republican support in the relatively conservative state. It also included some of the most comprehensive marijuana criminal justice reforms seen in any legalization effort to date and will serve as a benchmark for future efforts around the country....

Meanwhile, Americans for Prosperity, a conservative advocacy group, has set their sights on another drug policy long overdue for reform: sentencing disparities between crack and powder cocaine. For over 35 years, the sentencing imbalance between these two types of cocaine has disproportionately and undeniably impacted Black communities. In 2022, the bipartisan Eliminating a Quantifiably Unjust Application of the Law (EQUAL) Act narrowly failed in the Senate after passing the House, and in February 2023 it was reintroduced by a bipartisan group including U.S. Sens. Lindsey Graham and Rand Paul....

In the last five years, 10 states have passed clean slate legislation — policies that expand eligibility for the clearance or sealing of arrest and conviction records, as well as automate that process — for people who have remained crime-free.  Another half dozen states are expected to consider bills around the topic in the coming year or so.  Advocates say the popularity of these efforts is due to a principle all sides can agree on: Bureaucratic barriers should be removed so that more people can get back to work and support themselves....

“Clean Slate efforts have gained strong bipartisan support because they are deeply rooted in the American Dream — the belief that if you work hard, you should be able to get ahead and provide for your family,” says Sheena Meade, CEO of Clean Slate Initiative. ​“Also, people are starting to understand that those who benefit from a second chance are normal folks. One in three Americans have an arrest or conviction record, and most records are not for serious offenses.”

These clean slate policies can have massive impact. For instance, since the implementation of Pennsylvania’s clean slate law in 2019, over 40 million cases have been sealed, benefiting 1.2 million Pennsylvanians.... The Nolan Center for Justice, established by the American Conservative Union Foundation, is also a prominent voice for clean-slate policies. ​“We tailor our approach depending on who we speak to,” explains Kaitlin Owens, Nolan’s deputy director of advocacy. ​“For instance, reaching out to business leaders who can testify on the positives of hiring formerly incarcerated folks can go a long way.”

In addition to its support for people who have recently been released from incarceration, the Nolan Center also works to effectuate change within prisons. For instance, model policy written by Nolan in 2017 around improving the treatment of incarcerated women was distributed to state legislatures via the American Legislative Exchange Council (ALEC), a conservative nonprofit organization, resulting in 32 states — many of them southern Republican strongholds — passing such legislation.  One example is North Carolina, which in 2021 passed the Dignity Act limiting the use of restraints and cavity searches on pregnant women, providing access to menstrual products, and ensuring mothers are placed in facilities within a reasonable distance to their children. 

I find it both notable and interesting to see how Arnold Ventures is trying to make the case that "bipartisan commitment to criminal justice reform has remained remarkably robust."  I would not quibble with this claim if the title of this article focused on conservative advocacy groups because all the groups mentioned in the article (and others like Right on Crime) continue to press forward with thoughtful arguments that all sorts of criminal justice reforms are justified by conservative principles.  Put slightly differently, there is certainly a strong case to be made that conservative principles and conservative advocacy groups still strongly support criminal justice reforms.

But the article title claims that "Red State" support for reform "Remains Strong."  This claim could be supported, yet North Carolina is the only state extensively discussed in the article has actually enacted reforms (whereas failed and stalled reform efforts in Oklahoma and elsewhere are also discussed).  Putting aside that many consider North Carolina a purple state (in part because it has a Democratic governor), it is disappointing that the article does not mention an array of notable recent reforms in red states like Florida and Indiana and Ohio.  (And, though the article discusses some federal reform proposals, it does not discuss the recent "bipartisan" work of Congress to reject Washington DC's local effort to reform its criminal code.)

In sum, though I sincerely want to believe that the "bipartisan commitment to criminal justice reform has remained remarkably robust," I see the politics of crime and punishment circa Spring 2023 to be much more nuanced, dynamic and multi-dimensional with a lot of distinct political and practical factors pushing and pulling distinct reform efforts.  And while it is useful to see Arnold Ventures painting a rosy picture concerning modern reform politics, this picture does not seem entirely complete.

"The Poor Reform Prosecutor: So Far From the State Capital, So Close to the Suburbs"

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

Given the undeniable role that prosecutorial discretion has played in driving mass incarceration, it makes sense to turn to them to scale it back as well.  This has certainly been a central motivation of the progressive/reform prosecutor movement that started in the late 2000s.  And while this movement has had some notable successes, recent years have shed some important light on the limits it faces as well.  In this essay, I want to focus on how the county-ness of prosecutors hems in their power from two different directions.

On the one hand, as county officials, prosecutors — at least in most major urban areas — have a large number of constituents who live in the suburbs and regularly oppose reforms … of policies that by and large do not affect them. It’s telling that many, if not most, reform prosecutors have been elected in counties that either have no suburbs at all within their borders (Philadelphia, Baltimore, St. Louis) or where the suburbs are a small fraction of the overall population (Boston, Portland).  It’s clear across a wide range of cities that the core support for reform DAs comes from Black communities with high levels of violence, i.e., the communities that bear the brunt of DA decisionmaking.  The more suburban voters in a county, however, the more diluted those voices become.

On the other hand, as county officials, prosecutors operate at the mercy of state officials, who have a wide range of powers for clipping their wings: legislatures can give state AGs concurrent jurisdiction, for example, and in many places governors can remove elected DAs or take their cases away from them.  While states are shielded from (some) federal interventions by the 10th Amendment, county officials have no such protection, as reform DAs in GOP-controlled states are increasingly beginning to discover.

My argument here is not one for nihilism.  Even with these limits, the so-called “progressive prosecutor” movement can (and has!) accomplish quite a lot.  But these constraints are very much real constraints, and ones that defy any sort of easy (or perhaps just any) policy fix.  It is essential to map out what these limits look like, the constraints they impose, and what they mean for reform efforts going forward.

Another round up of post-election criminal justice analysis

As noted before, I did a number of pre-election posts with a round-up of news and commentary focused on criminal justice policy and politics as the 2022 voting approached (see here and here and here).  In turn, late last week, I did a first post-election round-up (and update) with news and commentary as all the 2022 mid-term votes were being counted.  With counting now almost complete, here are another set of new pieces in this space:

From the ACLU, "Three Key Criminal Legal Reform Takeaways from the 2022 Midterms"

From Colorado Public Radio "For losing Republicans, a silver lining: They pushed the conversation on crime and public safety during the election"

From The Crime Report, "Reform – Not Crime – Was the Winning Message in 2022"

From Filter, "Midwest Offers Only Real Reform Highlights in 2022 Prosecutor Elections"

From The Marshall Project, "7 Key Criminal Justice Takeaways From the Midterms"

From The Washington Post, "How Democrats can win voters’ trust on crime"

Rounding up a few post-election accountings and commentary on the crime and justice front

I did a number of pre-election posts with a round-up of news and commentary focused on criminal justice policy and politics as the 2022 voting approached (see here and here and here).  It now seems only fitting to do a (first?) post-election round-up of news and commentary as we get closer to all the 2022 mid-term votes being counted:

From The Appeal, "Midterm Elections Deliver Some Good News For Criminal Legal Reform"

From The Crime Report, "Crime and the Midterms"

From Democracy Now!, "Progressive Prosecutors Win Key Races Despite GOP Attacks on Criminal Justice Reform"

From the New York Times, "For Republicans, Crime Pays, No Matter What Else Happens"

From Reason, "The Crime Backlash Mostly Failed To Materialize on Election Night"

From the Washington Post, "How Democrats can win back trust on the issue of crime"

 

UPDATE:  I now have seen some more pieces in this vein since my initial posting:

From The Appeal, "Voters Didn’t Buy The ‘Crime Panic’ Narrative. Democrats Should Take Note."

From BuzzFeed News, "Progressive Prosecutors Won In Midterm Elections Across The US In Spite Of Tough-On-Crime Rhetoric From Republicans"

From Mother Jones, "Republicans Hoped a 'Crime Wave' Was Their Ticket to a Red Wave. It Wasn’t."

From Religion Unplugged, "Recreational Marijuana Use Becomes New Front In The Culture Wars Following Midterms"

From Vera Action, "As Voters Reject Crime Scare Tactics in the 2022 Midterms, Democrats Must Seize the Opportunity for a New Path Forward on Safety and Justice"

From The Watch (Randy Balko), "What the midterms told us about voters and crime"

So, does anyone already have "hot takes" on what election results might mean for criminal justice reforms?

Because votes are still being counted nationwide and especially because control of the US Senate may not be resolved until a Georgia run off in December, it is way too early to make any confident predictions about the national policy landscape for the next few months or the next few years.  But with marijuana reform getting mixed results in five states — winning in the big states of Maryland and Missouri, losing in the smaller states of Arkansas, North Dakota and South Dakota — there is already a basis to make a lot of mixed predictions about the short- and long-term future of marijuana reforms.  Likewise, with crime and punishment being a big part of lots of other candidate campaigns that have been called, maybe it is not too early for folks to have interesting views on what the 2022 election means for crime and punishment issues in 2023 and beyond.

So, dear readers, please feel free to use the comments to flag any especially notable races (or exit polls) that you think are especially important for informed political or policy view on criminal justice issues post-election 2022.  And, as the title of this post suggests, "hot takes" are more than welcome.

Is the US "on the verge of a new wave of mass incarceration"?

The question in the title of this post is prompted by this notable new Time commentary by Udi Ofer given the headline "Politicians' Tough-on-Crime Messaging Could Have Devastating Consequences."  Here are some extended excerpts from a piece that merits reading in full:

In the majority of hotly contested 2022 midterm races across the country, tough-on-crime rhetoric is at the top of the agenda.  Close to 60% of Republican spending on campaign ads since September has been on the topic of crime, with tens of thousands of ads running on the issue, and Democrats have responded with their own $36 million war chest.  Not since the height of America’s mass incarceration era has the nation seen law and order politics play such an outsized role in candidate races up and down the ballot.  The outcome could put the country in danger of entering a new era of more mass incarceration....

While Republicans are leading this charge, both parties are playing with fire, as the political rhetoric being deployed this election season has the potential to trigger a new surge in incarceration, as occurred following previous election cycles that starred tough-on-crime rhetoric.  Between 1973-2009, the nation saw an exponential growth in incarceration, from approximately 200,000 people in prisons and jails in 1973 to 2.2 million by 2009, making the U.S. the largest incarcerator in the world, with a rate 5 to 10 times higher than Western Europe and other democracies.  Hundreds of new laws and practices passed at the local, state, and federal levels, including new mandatory minimums with harsh sentences, more cash bail and pretrial detention, and more aggressive prosecutorial and policing practices like stop-and-frisk....

Along with mass incarceration came extreme racial inequities that spread well beyond the carceral system.  A Black boy born in the 2000s had a 1 in 3 chance of ending up incarcerated, compared to a 1 in 17 chance for a white boy.  Mass incarceration has contributed significantly to the racial achievement gap, poorer health outcomes in Black communities, and economic hardship for Black families....

This crisis in mass incarceration, which only recently began to dip, has roots that run deep in efforts to politicize and racialize crime.  Mass incarceration has been fueled by moments like the one we are living in today, where following years of gains on civil rights, a backlash ensues and crime is conflated with reforms and civil rights protests....

It wasn’t until the past 10 years that a bipartisan movement for criminal justice reform formed, pushing for an alternative approach.  This movement by Democrats and Republicans has worked together in states across the country to pass bipartisan reforms, such as sentencing reform in Louisiana and Oklahoma, bail reform in New Jersey and Colorado, second chance laws in Georgia, Michigan, Pennsylvania and Utah, drug law reform in Oregon and Rhode Island, and much more.  The nationwide prison population began to drop to 1.2 million, and the U.S. moved from first to fifth place in the global ranking of imprisonment rates, right between Cuba and Panama.  Families were reunited with their loved ones, and some of the states that have seen the largest decrease in incarceration are also some of the safest states in the nation, like New Jersey.

But today, just as nationwide incarceration rates were beginning to slowly drop, public anxiety over crime is being turned into a wedge issue between the two political parties to undermine progress made on civil rights and criminal justice reform.  Bail reform, police reform, parole reform, and sentencing reform are wrongfully being blamed for a rise in crime....

Candidates for office can resist the tough-on-crime impulse that has grown so common since Barry Goldwater’s 1964 run for office. They can provide a new vision for safety, one that many communities have been calling for — one the emphasizes prevention and investments in public health, schools, jobs, housing and community support structures, and relegates incarceration to the last possible option, after all other intervention efforts have failed.

In fact, research conducted by organizations like Vera Action and HIT Strategies has found that while voters care deeply about crime, they want more than the one-dimensional tough-on-crime message being delivered.  Candidates benefit by articulating a vision that recognizes that public safety is achieved when we provide people with the resources they need to thrive, like earning a living wage, receiving a good education, and having stable housing.  Voters understand that police shouldn’t be the ones charged with solving every social problem, from kids skipping school to mental health needs to homelessness. Instead, voters are seeking long term solutions rooted in prevention, like a good education and a good job.

So far, too few politicians on both the right and left are moving away from the reflexive tough-on-crime rhetoric that has proven to be so devastating in the past.  It won’t be clear until after the midterms how much this rhetoric has impacted voter choices, but the damage may have already been done.  Unless more politicians change course, the U.S. is on the verge of a new wave of mass incarceration — as history repeats itself.

There is much to commend in this piece (including in parts I did not reprint here), and I think there is a very sound basis to expect and fear that heightened concerns about crime and the new wave of political rhetoric being deployed this election season likely will slow or even impede various parts of the agenda in the bipartisan movement for criminal justice reform.  One obvious "for example" here is the now-stalled effort to equalize crack and powder cocaine sentences at the federal level.  The US House of Representatives voted overwhelmingly in Sept 2021, by a tally of 361-66, to pass the EQUAL Act to equalize powder and crack cocaine sentences, but concerns about "soft-on-crime" attacks have seemingly kept the Senate from moving forward.  

But slowing down on-going reform efforts is a long way from "a new wave of mass incarceration."  As this commentary suggests, both voters and their representatives now understand the importance of a variety of policy responses to crime concerns.  More broadly, we now generally see a far more nuanced discussion of mandatory minimum sentences, drug policy issues and even the death penalty than we did a generation ago.  For example, though a number of GOP Senators have now come out against the EQUAL Act, their competing bill still involves reducing crack sentences a good deal (while also raising cocaine sentences a bit).  And at least one GOP Senator, Mike Lee, is still actively campaigning on his bipartisan criminal justice reform work in the FIRST STEP Act.  In other words, while we may only see a "one-dimensional tough-on-crime message" in 30-second TV ads, I sense most policy-makers still recognize the need for so-called "smart-on-crime" reform efforts.

Ultimately, a lot of political and policy forces that developed over decades provided the infrastructure for modern mass incarceration, and a lot of countering political and policy forces also developing over decades have contributed to the (slow) decline in incarceration rates in recent years.  I do not think one political cycle alone will dramatically change all the trends and dynamics that have brought us to this somewhat fraught moment.  But I do think, as this commentary stresses in many ways, there are plenty of political and policy lessons to learn from both older and more recent developments.  Interesting times.

Some more criminal justice policy and politics as 2022 mid-term election approaches

There are any number of commentaries about crime and punishment issues in this mid-term election cycle as we close in on a final vote.  Here a few pieces that caught my eye recently:

From The Marshall Project, "Why Millions of Americans Will Be Left Out of the Midterms"

From the Niskanen Center, "Voters care about crime. Here’s what lawmakers should do about it."

From Stateline, "The Push to Decriminalize Marijuana Possession Continues, Town by Town"

From the Vera Institute, "How Mass Incarceration Shapes Our Elections"

From Vox, "The reason Republican attacks on crime are so potent"

From the Washington Examiner, "Democrats struggle against Republicans on crime issue"

UPDATE: I just saw this notable new American Prospect piece headlined "How Democrats Mishandled Crime: The most effective issue for Republicans in this midterm is a result of Democratic elites failing to understand what their diverse base of working-class voters wants."

Interesting accounting of what we know about violent crime and voter concerns a week before Election Day 2022

In the first part of most election years, I tend to enjoy seeing early political commercials and commentary to get a flavor for how various policy issues are being framed and engaged by candidates and advocacy groups.  But, once we reach the homestretch in a major election year, I often start counting down the days to the election while growing ever weary of the non-stop political ads and chatter.  So, I am quite pleased we are finally just a week from Election Day 2022, and I am even more pleased about this interesting and timely new Pew Research Center piece titled "Violent crime is a key midterm voting issue, but what does the data say?".  Here is the start and numbered items from the piece (links from the original):

Political candidates around the United States have released thousands of ads focusing on violent crime this year, and most registered voters see the issue as very important in the Nov. 8 midterm elections. But official statistics from the federal government paint a complicated picture when it comes to recent changes in the U.S. violent crime rate.

With Election Day approaching, here’s a closer look at voter attitudes about violent crime, as well as an analysis of the nation’s violent crime rate itself. All findings are drawn from Center surveys and the federal government’s two primary measures of crime: a large annual survey from the Bureau of Justice Statistics (BJS) and an annual study of local police data from the Federal Bureau of Investigation (FBI).

1. Around six-in-ten registered voters (61%) say violent crime is very important when making their decision about who to vote for in this year’s congressional elections....

2. Republican voters are much more likely than Democratic voters to see violent crime as a key voting issue this year....

3. Older voters are far more likely than younger ones to see violent crime as a key election issue....

4. Black voters are particularly likely to say violent crime is a very important midterm issue....

5. Annual government surveys from the Bureau of Justice Statistics show no recent increase in the U.S. violent crime rate....

6. The FBI also estimates that there was no increase in the violent crime rate in 2021....

7. While the total U.S. violent crime rate does not appear to have increased recently, the most serious form of violent crime – murder – has risen significantly during the pandemic....

8. There are many reasons why voters might be concerned about violent crime, even if official statistics do not show an increase in the nation’s total violent crime rate.

"Guns, Mass Incarceration, and Bipartisan Reform: Beyond Vicious Circle and Social Polarization"

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

Gun violence in modern America persists in the face of irreconcilable views on gun control and the right to bear arms.  Yet one area of agreement between Democrats and Republicans has received insufficient attention: punitiveness as a means of gun control.  The United States has gravitated toward a peculiar social model combining extremely loose regulations on guns and extremely harsh penalties on gun crime.  If someone possesses a gun illegally or carries one when committing another crime, such as burglary or drug dealing, draconian mandatory minimums can apply.  These circumstances exemplify root causes of mass incarceration: overreliance on prisons in reaction to social problems and unforgiving punishments for those labeled as “violent” criminals.  Contrary to widespread misconceptions, mass incarceration does not primarily stem from locking up petty, nonviolent offenders caught in the “War on Drugs.”  Most prisoners are serving time for violent offenses.  Steep sentence enhancements for crimes involving guns illustrate how American justice revolves around counterproductive, costly practices that disproportionately impact minorities.

This multidisciplinary Article envisions future reforms with the capacity to transcend America’s bitter polarization.  A precondition to change is not for conservatives and liberals to wholeheartedly agree on issues like systemic racism or the right to bear arms.  Rather, possibilities for penal reform are likelier when each side can come to the negotiating table for its own reasons.  A paradigm shift in conservative America may prove especially indispensable, as Republicans tend to be more supportive of harsh punishments and Democrats are unlikely to achieve reform nationwide on party-line votes.  This shift has already occurred to an extent given the rise of penal reform in red states.  But both conservatives and liberals have failed to significantly reduce mass incarceration by recurrently excluding “violent” offenders from reform initiatives.

The Article explores how conservatives and liberals could gradually converge toward sentencing reform on gun crime.  This could ultimately have a ripple effect on American sentencing norms, leading them closer to those of Western democracies with more effective and humane penal systems.  Such bipartisanship is less elusive than it might seem.  A rehabilitative approach toward gun crime fits with the evolution of American conservatism, which believes that guns should not be vilified since they are part of the nation’s identity.  Similarly, the rehabilitation of people convicted of gun crime is consistent with cornerstones of modern American liberalism, namely stricter gun control and opposition to mass incarceration as an unjust, racist system.  As opposite sides will probably retain much of their worldview even if their perspectives evolve to a degree, new ways of thinking could help bring reformers together.  These social transformations cannot be predicted but should be theorized.

A few crime and punishment stories from the campaign trail

Last month, I noted in this post that the 2022 election campaign has seen a lot more crime and punishment talk than we have seen in a long time.  Of course, this is partly of function of the fact that violent crime clearly has spiked since the COVID pandemic and the fact voters have clearly expressed concern about this spike. 

I have mentioned in few settings that, while crime and punishment talk has become more prominent this election cycle, seemingly few 2022 candidates are talking up expanding the death penalty or seeking to increase the number of death sentences and executions nationwide.  (This DPIC fact sheet highlights the modern capital punishment lows during the Trump/Biden years.)  But, as this partial round-up of recent stories shows, lots of other tough-on-crime ideas and talk are part of this cycle's political discourse:

From the AP, "Michels wants changes to Wisconsin parole system"

Also from the AP, "Zeldin’s crime message resonates in New York governor’s race"

From the Atlanta Journal-Constitution, "In final campaign stretch, Georgia candidates clash on crime"

From the Marshall Project, "Fetterman and Oz Battle Over Pennsylvania’s Felony Murder Law"

From the New York Times, "As Republican Campaigns Seize on Crime, Racism Becomes a New Battlefront"

From Politico, "The other issue driving the midterms"

"A Nat-Con Case for Criminal Justice Reform"

The title of this post is the title of this new essay authored by Marc A. Levin at Law & Liberty. I recommend the full piece, and here is just a taste from the start and closing of the piece:

From the halls of Mar-a-Lago to the streets of Chicago, all Americans have a stake in the fair application of criminal law by a system they can trust. Indeed, there cannot be a policy area in which a principled approach is more important than in criminal justice, where lives and liberties are at stake.  So how do the principles of the emergent national conservatism movement apply to criminal justice policy?  Can they inform a center-right approach to public safety that draws on the overlap between national conservatism’s Christian worldview and universal truths?

A July 2022 manifesto entitled “National Conservatism: A Statement of Principles” crystallizes the tenets of this movement that seeks to address many Americans’ apprehension about the coarsening of our culture and erosion of our national identity.  These concerns naturally implicate the criminal justice system, which becomes the last backstop when society’s norms and institutions from the family to the education system prove inadequate, leaving the law as the only remaining form of social control, weak as it often is....

[N]either conservatives of any stripe nor anyone else should back policies that are inconsistent with public safety. However, within that universe, the principles of the manifesto are consistent with four factors for evaluating criminal justice policies: 1) Are they deeply rooted in our best traditions and in alignment with our founding principles of liberty?; 2) Do they protect and strengthen families?; 3) Do they address not just individual culpability but also drivers of criminal activity, including family breakdown, exposure to trauma, addiction, mental health, and the neighborhood environment; and 4) Do they nurture and sustain the public’s confidence in the rule of law as an expression of our shared morality?

Those policies that check these boxes can lead to a stronger, fairer, safer, and more unified nation, an objective that both national conservatives and all Americans can embrace.

Noticing how crime has become a leading issue in 2022 campaign

Way back in 2008, I remember complaining on this blog about the fact that crime and mass incarceration (which was peaking around that time) was getting very attention in the 2008 campaign (see, e.g., posts here and here and here).  But, as highlighted by these recent major press pieces, the 2022 campaign is already seeing plenty of crime talk:

From Fox News, "GOP hopes tough-on-crime message defuses abortion backlash with suburban women"

From the New York Times, "G.O.P. Redoubles Efforts to Tie Democrats to High Crime Rates"

From the New York Times, "Fetterman’s Push for Clemency Becomes an Attack Line for Oz"

From the News Nation, "Republicans bet crime will be winning issue in midterms"

From Roll Call, "At the Races: Cop votes and crime ads"

From the Washington Post, "GOP strategy elevates clashes over crime, race in midterm battlegrounds"

San Francisco voters recall progressive prosecutor Chesa Boudin by a large margin

As polls had suggested they would, voters in a supposedly progressive city yesterday voted overwhelmingly to recall a high-profile progressive prosecutor. This local piece, headlined "Voters oust Chesa Boudin as San Francisco district attorney," provides the details and some context:

Voters recalled District Attorney Chesa Boudin on Tuesday, ending a brief and tumultuous experiment with embedding San Francisco’s staunch progressive values in The City’s top law enforcement position.  Initial results showed 60% of ballots cast in favor of recalling Boudin, with 40% opposed.

The effort to recall Boudin catalyzed voter frustration over property crime and what proponents alleged was leniency in the way serious crimes are prosecuted.  "This is not a message to the rest of the country, but to take care of our community ... it's really making sure you have balance around the idea of progressive reform and safety.  They are one in the same, and we got off track,” recall organizer Andrea Shorter said.

Boudin’s defenders framed the recall as an effort backed by Republicans that misled voters about the realities of crime rates in San Francisco. Addressing supporters on Tuesday, Boudin provided his theory for the crushing defeat at the polls. "The right wing billionaires outspent us three to one. They exploited an environment in which people are appropriately upset and they created an electoral dynamic where we were literally shadowboxing," Boudin said.  "Voters were not asked to choose between criminal justice reform and something else. They were given the opportunity to voice their frustration and their outrage and they took that opportunity.”

The recall movement rode a wave of broader discontent among city voters. Although Boudin became the face of San Franciscans' anger, public polling has shown voters disapprove of the jobs done by the Board of Supervisors, Mayor London Breed and the Police Department.  Less than four months ago, voters recalled three school board members.

It might take another election to discern whether voters rejected Boudin’s guiding principles or Boudin himself, who was elected in 2019 with less of a mandate than a modest margin in another low-turnout contest.  Boudin defeated establishment-favorite Suzy Loftus with 50.8% of the vote in the final round of ranked-choice voting. Though Tuesday’s election saw no shortage of think pieces written by out-of-town media outlets in recent days, it’s unclear what lessons to take from a low-turnout election.

Though Boudin’s approval rating proved abysmal in a recent poll commissioned by The Examiner, his broader philosophies — including sending low-level offenders to diversion programs instead of jail — still scored highly among San Franciscans....  In an effort to upend and rebuild the criminal justice system, Boudin increasingly relied on diversion programs to resolve criminal cases instead of lengthy jail sentences.  The son of left-wing radical parents who served long jail sentences for their role in a botched fatal robbery, Boudin spoke often about the negative consequences of incarceration.

With the exception of homicides, violent crime has remained near historic lows.  Property crime has been mixed under his tenure — larcenies and robberies are down since 2018 while motor vehicle thefts and burglaries are up — but Boudin has abdicated responsibility for that fact, arguing that much of what has happened in the last two years is a result not of his office’s work but of the pandemic.

Boudin’s opponents, who coalesced around his recall shortly after his election, argued his policies have made San Francisco less safe, his office is rife with turnover and that the interests of crime victims had been pushed aside in the name of his cause.  Rather than jump to cite crime data, proponents of the recall leaned heavily on individual stories. There was 6-year-old Jace Young, whose 17-year-old killer was convicted of murder in juvenile court.  Critics of Boudin, including Jace’s father, wanted the juvenile tried as an adult to secure a longer jail sentence, but Boudin refused.  There was 84-year-old Vicha Ratanapkadee, who was pushed to his death by a man Boudin later described as having a “temper tantrum,” enraging the DA’s critics.

More broadly, recall proponents tapped into frustrations felt by San Franciscans tired of smash-and-grab robberies and a sense of lawlessness in The City.  “The condition of the streets are getting intolerable. I know it’s not all his fault because of the pandemic, but it’s because he refuses prosecution that crime has been further encouraged,” Kevin Wakelin, who lives near City Hall, told The Examiner. “There are so many car break-ins, house break-ins and stolen bicycles.  No one can afford a brand new bicycle every other week but that truly happens to some of us, and it’s terrible.  He (Boudin) needs to take responsibility for that.”...

Boudin’s recall leaves a vacancy that will be up to the mayor to fill. Crucial to her decision is the fate of Proposition C, which failed.  Prop. C would have, among other reforms to the recall process, prohibited a person appointed to a vacancy created by a recall from seeking election to the same post in the upcoming election. Put more clearly, Prop. C would have prevented whomever Breed appoints from seeking election to a full term in the following election.  Had Prop. C passed, it would have effectively limited the potential pool of candidates to those who have no interest in seeking the job long-term.

Supervisor Catherine Stefani, an ally of Breed’s and former deputy district attorney in Contra Costa County, has been floated as a potential candidate to replace Boudin. Brooke Jenkins, a former prosecutor who quit under Boudin’s tenure, has been a leading face of the recall movement.  She, too, could be under consideration for the post. Breed will be responsible for making the appointment after the election results are certified.

A lot can be said, and a lot surely will be written, about this outcome and what it may mean for the progressive prosecutor movement and criminal justice reform more generally.  For now, I will be content to just note that, when it comes to elected politics, perception can often matter a whole lot more than policy.  This may be a trite and obvious point, but it surely helps explain why "individual stories" may resonate with voters in San Fran and elsewhere a lot more than data runs or policy statements.

An (incomplete) account of the dynamic state of federal criminal justice reform politics

This new Politico article, headlined "Trump’s criminal justice reform bill becomes persona non grata among GOPers," provides an interesting (but I think incomplete) account of the current state of federal criminal justice reform politics.  I recommend the full piece, and here are some excerpts:

The First Step Act was not just hailed as a rare bipartisan achievement for the 45th president but as the beginning of a major shift in GOP politics, one that would move the party past the 1980s tough-on-crime mindset to a focus on rehabilitation, racial fairness and second chances.

Three-and-a-half years later, few Republicans — Trump included — seem not at all interested in talking about it. With spikes in crime registering as a top concern for voters, Republicans have increasingly reverted back to that 1980s mindset. Talk of additional legislation has taken a back seat to calls for enhanced policing and accusations that Democratic-led cities are veering toward lawlessness....

For some advocates, the Republican Party’s cooling to criminal justice reform confirms the belief the interest wasn’t ever sincere. But for lawmakers and advocates on the right who worked on the First Step Act, the shift has been similarly disconcerting, raising concern it freezes political momentum for further reform.

“I personally think there’s just as many people that want to do criminal justice reform as the last several years, but I think their voices are quiet now, and those that are opposed to the First Step Act are still opposed and have gotten louder,” said Brett Tolman from the conservative group Right on Crime.  Tolman added that much work continues behind the scenes. “It feels like we just have to bide our time a bit and get past when the emotion of all of the political rhetoric is at the forefront.”...

Republicans who support reforms say the party can be both in line with that vision and adopt a tough-on-crime posture — that voters will be able to differentiate between crackdowns on violent crime and accountability in the justice system. “Reform and calling out truths can coexist. It’s not a binary decision.  And there are achievable solutions available,” said Zack Roday, a Republican political strategist.

But trends aren’t helping the reformer’s cause. In the past year, violent crime rates have risen dramatically, with at least 12 major U.S. cities breaking annual homicide records in 2021.  Recent polling reflects public concerns about rising crime rates and dissatisfaction with how public leaders are addressing the problem.  Republicans pointed to the trends as evidence of a Democratic failure....

Despite the changing political winds, reform advocates still say they are optimistic that Congress will pass the EQUAL Act, which would end federal sentencing disparities between crack and cocaine offenses.  Supporters of the bill, which the House passed in September with the support of some of the most conservative members, say it would address racial disparities, noting 90 percent of those serving federal time for crack offenses are Black....

So far, the bill has the support of 11 Republican senators, the National District Attorneys Association, the Major Cities Chiefs Association and the American Civil Liberties Union.  But congressional aides warn the legislation is not a slam dunk, especially without the support of Grassley, now the top Republican on the Judiciary Committee.  This week, the senator introduced a separate bill tackling crack and cocaine sentencing disparities.  And in a midterm election year when public focus is on rising crime in communities, some conservatives say they do not see a path forward for federal reforms.

“From the federal government I don’t see anything passing this year on criminal justice reform, I think they’re done. I think the politics of it are too difficult,” said Charles Stimson, a crime expert at the conservative Heritage Foundation. “People will probably be motivated in the fall to vote for folks who take the law and order approach and they’re not going to believe people who say they don’t have a crime problem.”

Though covering a lot of ground well, this Politico piece seem to me to fail to highlight how much crime and punishment had become a part of this era's broader culture wars.  Of particular note, I think George Floyd's murder, which brought "defund the police" to the forefront of the political arena, served to derail some of the bipartisanship that got the FIRST STEP Act to the finish line.  And thereafter with rising crime concerns, the GOPs recent affinity for a certain brand of populism makes it ever more likely for a return to the classic tough-on-crime tune.  (It also bears noting, in this context and others, that while Prez Trump leaned into prison reforms all through 2018 and actively helped get the FIRST STEP Act done, Prez Biden has made no public effort to push criminal justice reforms others than politically-fraught policing reforms.) 

And yet, adding ever more nuance to a complicated political story, there still seems to be persistent bipartisan energy for not just the EQUAL Act, but also for other smaller reforms. For example, as noted here, just six weeks ago, the US House overwhelmingly voted, by a margin of 405-12, for the Prohibiting Punishment of Acquitted Conduct Act of 2021.  And various modest proposed marijuana reforms, such as the SAFE Banking Act and a variety of bills to enhance research or expand expungements, are garnering bipartisan support in one form or another.     

Stated differently, I share Brett Tolman's general view that there are still plenty of folks on both sides of the aisle that are considerably interested in considerable criminal justice reforms.  But, critically, as political and criminal justice realities on the ground have changed, leaders of Congress must change their vision of the possible circa May 2022.  More modest bills may have to get more attention, and the "best" cannot be the enemy of the "good enough."   Small reform victories are still victories, and I would hope that the type of criminal justice reform bills that pass by a margin of 405-12 in one chamber should be able to make some progress in the other.  But hoping for Congress to do better obviously does not mean it will anytime soon.  

Remaining (overly?) upbeat about bipartisan criminal justice reform

Marc Levin has this notable new Hill commentary, headlined "Confirmation combat can’t crush bipartisan criminal justice reform," making an important case for staying bulling on the prospects for bipartisan criminal justice reform efforts.  I recommend the piece in full, and here are excerpts:

The “soft on crime” critique of Judge Ketanji Brown Jackson has prompted obituaries for the era of bipartisan support for criminal justice reform, a détente that the country has enjoyed since Texas kicked off a wave of policy change 15 years ago.  While the coalition may be fragile, the prospects remain encouraging for continued progress on both public safety and justice.

Optimism stems in part from the fact that the primary responsibility for criminal justice policy rests at the state level, and the most significant reforms continue to occur there. Indeed, it was state-level reforms that first led to prison closures and reduced recidivism through treatment courts and other alternatives to incarceration, including in red states like Texas and Georgia. Those advancements, in turn, inspired the federal First Step Act signed by President Trump in 2018, a law that pared back mandatory minimum sentences for drug crimes and allowed low-risk individuals to shave time off their prison terms by completing rehabilitative programs.

Today, state legislators remain the most significant actors in this arena, given that about 90 percent of all criminal cases and incarcerated populations are at the state and local levels. In Oklahoma, which has the nation’s highest incarceration rate, a bipartisan measure that brings consistency and proportionality to sentencing for nonviolent offenses overwhelmingly passed the state’s Senate on March 23.... Another red state, Ohio, is advancing a handful of significant bipartisan criminal justice reforms in its current legislative session....

While continued momentum on the state level promises to have the most far-reaching impact on the justice system, strong possibilities remain this election year for bipartisan congressional action.  One area with potential for progress is marijuana policy. There are a variety of proposals for unwinding failed federal policy on cannabis with varying levels of bipartisan support....

Also, in recent weeks, additional Republican senators have become cosponsors of a bill that would end the pronounced disparity in penalties between crack and powder cocaine, which would affect some 1,500 new sentences every year....  Other bipartisan federal legislation that could reach President Biden’s desk this year include bills that abolish federal life without parole sentences for juveniles, prevent the use of acquitted conduct in sentencing, extend Medicaid to otherwise eligible individuals within 30 days of their release from incarceration, and invest in treatment for people with mental illness in the justice system.

Undoubtedly, the recent rise in some types of violent crime, most notably homicides, has strained bipartisan coalitions around sensible reforms. While fearmongering is unwarranted, rigorously evaluating the impact of recent justice system changes is not just desirable, but necessary....

Criminal justice policy is too important to leave to any one political party, and all Americans, regardless of ideology, rightly demand a system that protects both their lives and liberties. While hearings for both Republican and Democratic administration Supreme Court nominees have become circus-like, there is reason to believe that our political leaders can move from confirmation combat to considerable consensus on the next steps to achieve safety and justice for all.

This commentary effectively highlights that there is still continued momentum for some forms of criminal justice reforms on both sides of the aisle at both the state and federal levels. But, even before the SCOTUS confirmation hearings, a pandemic-era spike in homicides and other crimes concerns were already creating headwinds for many reform efforts. And the SCOTUS hearings served as a significant reminder that "tough/soft on crime" rhetoric can often still quickly become a central part of the modern political atmosphere. How these matters play out in our politics and policy-making in the months and years to come is going to be important and interesting to watch closely.

An effective (though incomplete) review of current GOP views on criminal justice reform

Li Zhou has this lengthy new Vox piece about the state of GOP politics on criminal justice issues headlined "The Republican Party is still fractured on criminal justice reform."  The piece is worth a full read, and here are excerpts:

The rhetoric in Jackson’s hearing and in broader GOP messaging have seemed like a departure from the focus on criminal justice reform that the party had as recently as 2018, when the majority of Senate Republicans backed sentencing changes for nonviolent offenders in the First Step Act.  The party back then was eager to show it had made progress on an issue that arose from Congress’s efforts to crack down on crime decades ago.  (Many of these efforts notably excluded violent offenders or sex offenders that Jackson was spuriously accused of going easy on.)

There are some Republicans who are reluctant to evangelize criminal justice reforms now, advocates say, since increases in crime have become a GOP talking point.... “I think your average conservative, or average Republican, may have supported the First Step Act, but I have the impression that the average conservative has backed off from where they were,” says Clark Neily, a senior vice president of legal studies at the Cato Institute.

Experts emphasize, however, that the most aggressive moments in the hearing are not indicative of how open a segment of Republicans still is to important but limited criminal justice reforms. Just last week, 10 Republicans signed on to cosponsor the Equal Act, legislation that would reduce the sentencing disparities between crack cocaine and powder cocaine.  The legislation — which would make penalties the same for the two substances — has yet to be considered on the floor but could pass with the GOP support it has....

For years, the party has been fractured on the subject with senators like Tom Cotton (R-AR) opposed to virtually any reforms, while others like Sens. Rand Paul (R-KY), Mike Lee (R-UT) and Tim Scott (R-SC) have led efforts for sentencing reforms for nonviolent drug offenses and police reforms....

At the state and local level, many Republican officials have also pushed back on progressive prosecutors, policies like changes to cash bail, and reduced prosecutions for low-level offenses. “I think they’re often scared that if … crime continues to increase, no one wants the blame placed on them,” says Jillian Snider, the policy director for the criminal justice and civil liberties team at R Street Institute.

There’s also the Trump factor.  During his presidency, Trump’s support of the First Step Act helped to get Republicans who were on the fence on board. Without his advocacy on the issue now, some lawmakers are likely less open to this idea.

Because there are so many moving part to this story, even a strong press piece cannot cover the ground completely.  For example, the piece does not discuss the conventional wisdom that the slogan "abolish the police" proved extremely unpopular with voters in the 2020 election cycle, nor does it engage much with all sorts of interesting and diverse political reform dynamics at the state level (especially on topics like marijuana reform and record clearing).  Still, this piece reflects a notable moment in the ever-changing ebb and flow over crime policy and crime politics.

"Prison Reform Should Be a Bipartisan Issue"

This title of this post is the headline of this effective Wall Street Journal commentary authored by Marc M. Howard. I recommend the full piece and here are excerpts:

I was happy to learn that Rep. Marjorie Taylor Greene and several other members of Congress visited the District of Columbia Jail recently.  And I was flattered that her ensuing report, “Unusually Cruel,” quoted from my book and even borrowed its title.  As someone who frequently visits prisons, I believe it is vital that people see firsthand the conditions of incarceration around the country — and realize the humanity of those behind bars.

Mrs. Greene’s report focuses on the “inhumane” conditions in which the Jan. 6 defendants are being held. “Cells in the January 6 wing of the CTF were extremely small, composed of a single toilet, sink and a small bed cot,” she notes. “The walls of the rooms had residue of human feces, bodily fluids, blood, dirt and mold. The community showers were recently scrubbed of black mold — some of which remained.”  The report adds that inmates said they “did not have access to their attorneys, families or proper nutrition.”

These observations match the standard story of incarceration in America, and they should lead people to reflect on how they would feel if they or a loved one were held in such conditions.  This isn’t an abstract exercise, as 45% of Americans have had an immediate family member incarcerated.

Deplorable physical conditions are shockingly common, with prisons and jails across the country characterized by filth, violence, overcrowding and lack of privacy.  Most correctional facilities allow limited movement and communication, scant access to work or educational programming, and hostile and dehumanizing relations with staff....

Across the country, prison reform has been a largely bipartisan issue for nearly a decade.  The First Step Act of 2018 passed overwhelmingly in both houses of Congress and was signed by President Trump.  It was the most significant federal criminal-justice reform aimed at reducing incarceration in the past 50 years.  States led by Republicans (including Texas, Mississippi, Georgia, Louisiana and South Carolina) and Democrats (New York, New Jersey, Connecticut and California) have made conscious efforts to reduce their incarceration levels.

Although the events of Jan. 6 have become polarizing in American politics, the situation at the D.C. Jail has created an opportunity for both sides to appreciate the disturbing realities of prison in America.  I hope Mrs. Greene and others on the right who are appalled by the physical conditions they witnessed will become advocates for reforming the laws and policies that support a system that currently treats prisoners inhumanely.

I also hope that people on the left — including those who already favor prison reform but view it primarily through a racial-justice lens — will resist their own vindictive impulses, stop demonizing their political opponents, and support Jan. 6 defendants’ right to proper treatment.

Two new NPR pieces spotlight frustrations with Biden Administration among criminal justice reform advocates

This weekend has brought these two versions of NPR coverage of a topic familiar to readers of this  blog, namely the failure to see much tangible criminal justice reform action from the Biden Administration so far:

"Criminal justice advocates are pressing the Biden administration for more action"

"Activists wanted Biden to revamp the justice system. Many say they're still waiting"

Here are excerpts from the second piece:

People working to overhaul the criminal justice system say they're frustrated with the Biden administration after they've waited nearly a year for the White House to take major steps on clemency and sentencing reform. "I think we're at a point where we're saying, mere lip service isn't enough," said Sakira Cook, senior director of the justice reform program at the Leadership Conference on Civil and Human Rights. "We want to see some concrete action."

For them, concrete action could include granting clemency to the few thousand people who were released to home confinement by the Trump administration at the start of the pandemic. President Biden could ensure those people remain free with the stroke of a pen. But he hasn't done that yet, despite months of pressure....

Michael Gwin, a White House spokesman, told NPR in a written statement that the president has taken steps to reform the system "since his first day in office." "This includes restoring the Department of Justice's Office for Access to Justice, implementing new restrictions on chokeholds and no-knock warrants for federal law enforcement, ending contracts with private detention facilities, and expanding access to re-entry services for formerly incarcerated individuals," Gwin said.

The advocates say they're happy to give credit where it's due.  They praised the Justice Department for rescinding a Trump-era memo that directed prosecutors to pursue the most serious charges they could for any crime. And they're happy the DOJ has launched four big civil rights investigations of police departments.

But they've also taken note of this fact: the federal prison population has increased by some 5,000 people during Biden's tenure, according to Nazgol Ghandnoosh, a researcher at the Sentencing Project....  While homicides and shootings have increased in many parts of the country, the vast majority of those crimes are handled by state and local authorities, not the federal government.  Most people in federal prison are there for breaking drug or immigration laws, Ghandnoosh said.

Ghandnoosh had expected to see more than "small tinkering" by the new team in Washington. "We would expect to hear from the attorney general and the president very vocal and unequivocal support for federal sentencing reform that's being considered right now and that could help to give those initiatives an important boost," she added.

Another criticism is about personnel.  The White House hasn't taken any action to fill vacancies on the Sentencing Commission, which sets federal sentencing guidelines for many crimes.  "In the past, some of the best reforms [that] have been achieved in the last 10 years have been at the Sentencing Commission and they haven't even nominated people to fill this vacant body," said Ring of FAMM.

Meanwhile, key allies of the White House, including Senate Judiciary Committee Chairman Dick Durbin, D-Ill., are going public with their demand that the Justice Department fire the head of the federal prison system.  They say the Federal Bureau of Prisons mismanaged the pandemic and that there are several other serious problems in the system.

Democrats control both chambers of Congress with small majorities.  But the administration hasn't used the bully pulpit to promote the EQUAL Act, a bill that would equalize the penalties for crack and powder cocaine.  Those laws have punished Black people more harshly than white people for decades for essentially the same crime.

Noting differing perceptions of whether prison time is too long or too short or just right in the US

Over at the Pew Research Center, John Gramlich has this interesting new piece under the headline "U.S. public divided over whether people convicted of crimes spend too much or too little time in prison."  The graphic reprinted here captures the heart of the story, and here is some of the text (with links from the original):

Americans are closely divided over whether people convicted of crimes spend too much, too little or about the right amount of time in prison, with especially notable differences in views by party affiliation, ideology, race and ethnicity.

Overall, 28% of U.S. adults say people convicted of crimes spend too much time in prison, while 32% say they spend too little time and 37% say they spend about the right amount of time, according to a Pew Research Center survey of 10,221 adults conducted in July 2021.  The question was asked as part of a broader survey examining differences in Americans’ political attitudes and values across a range of topics.  The survey asked about prison time in a general way and did not address penalties for specific crime types.

Democrats and Democratic-leaning independents are much more likely to say people convicted of crimes spend too much time in prison than to say they spend too little time behind bars (41% vs. 21%).  The reverse is true among Republicans and Republican-leaning independents: 44% of Republicans say people convicted of crimes spend too little time in prison, while 14% say they spend too much time behind bars.  Around a third of Democrats and Democratic leaners (35%) and a slightly higher share of Republicans and GOP leaners (39%) say people convicted of crimes spend about the right amount of time in prison.

Views differ by ideology within each partisan group.  Liberal Democrats are more likely than conservative and moderate Democrats (54% vs. 30%) to say convicted people spend too much time in prison.  Conservative Republicans are more likely than moderate and liberal Republicans (49% vs. 35%) to say people convicted of crimes spend too little time in prison.

Democrats who describe their political views as very liberal and Republicans who describe their views as very conservative stand out even more.  Very liberal Democrats are much more likely than Democrats who describe their views as simply liberal (70% vs. 47%) to say convicted people spend too much time in prison.  And very conservative Republicans are more likely than Republicans who describe their views as simply conservative (56% vs. 47%) to say people convicted of crimes spend too little time in prison.

Attitudes about many aspects of the U.S. criminal justice system differ by race and ethnicity, as previous Pew Research Center surveys have shown, and a similar pattern appears in views of time spent in prison.  Black adults (40%) are more likely than White (26%), Asian (26%) and Hispanic adults (25%) to say people convicted of crimes spend too much time in prison.  Conversely, White adults (36%) are more likely than Hispanic (28%) and Black adults (17%) to believe that convicted people spend too little time behind bars.  Around a third of Asian adults (34%) also say convicted people do not spend enough time in prison, but their views are not statistically different from those of White and Hispanic adults.

Among Democrats, similar shares of Black and White adults say prisoners spend too much time behind bars, even as Black and White Democrats express different views on some other survey questions related to criminal justice.  Black Democrats, for example, are modestly more likely than White Democrats to favor increased funding for police in their area, according to a September Pew Research Center survey.

Are more conservatives really turning away from the death penalty?

The question in the title of this post is prompted by this new Wall Street Journal article headlined "More Conservatives Turn Away From Death Penalty."  In addition, Demetrius Minor his this new opinion piece from Newsweek, headlined "Republicans Across the Country Are Joining the Fight to End the Death Penalty," provides this accounting:

[I]n deep red Utah are considering ending the state's death penalty. Governor Spencer Cox, who has previously revealed his support for the death penalty, says he is now open to "reevaluating" his stance on the issue. He is joined by Utah County Attorney David Leavitt, another Republican who has said his office would no longer seek death penalty prosecutions....

And this isn't just occurring in Utah. There is a nationwide trend of Republican- controlled state legislatures re-thinking capital punishment driven by the fiscal, moral, and cultural conservative values that should lead us to oppose the death penalty. Virginia repealed the death penalty in March 2021 with bipartisan support. Pennsylvania, Kansas, Wyoming, Kentucky, Georgia, Montana, Washington, and Ohio all have had Republican-sponsored bills this year, with a total of 40 Republican sponsors.

In Ohio, a political bell-weather state that has become very red in recent election cycles, former Congresswoman and now State Representative Jean Schmidt and Sen. Stephen Huffman are Republican prime sponsors of bills to end the death penalty. They are clear that the death penalty is a contradiction to their conservative beliefs.

I do sense that a few more GOP leaders are a bit more comfortable expressing capital opposition, and yet I am unclear if this is a major trend or really anything all that new.  Notably, I have seen (and blogged) about stories claiming or advocating for softer support for capital punishment among those on the right, and yet polling numbers do not show any real shift.  Gallup released its latest polling on the death penalty this past week, and here is its discussion of the political dynamics:

Gallup began asking its historical death penalty trend question in its annual Crime survey beginning in 2000. During this time, there have been two notable shifts in death penalty attitudes. Between 2011 and 2016, the percentage expressing support showed a drop to 61% from 66% in the preceding decade. In the past four years, support has fallen further to an average 56%.

Both Democrats and independents show declines in their support for the death penalty, including similar drops (eight and seven percentage points, respectively) since 2016. Between the 2000-2010 and 2011-2016 time periods, Democratic support dropped more (eight points) than independent support did (three points). Now, 39% of Democrats and 54% of independents are in favor of the death penalty.

Meanwhile, Republicans' support for the death penalty has held steady, with 79% currently supporting it, unchanged since 2016 and barely lower than the 80% registered between 2000 and 2010.

Here is a sampling of some older posts on this front through the years:

• A new world of death penalty politics? (from 2006)
• "When Governments Kill: A conservative argues for abolishing the death penalty" (from 2009)
• New group opposing death penalty emerges at CPAC (from 2013)
• Is there a "growing movement against death penalty – on the right"? (from 2015)
• Are there really now lots more conservatives in lots of states "starting to question the cost and legality of capital punishment"? (from 2016)
• New commentary at The American Conservative makes the case for "Why Conservatives Should Oppose the Death Penalty" (from 2019)

"Elections have consequences": Virginia criminal justice edition

I now have seen a couple of noteworthy articles related to criminal justice issues coming from Virginia in the wake of GOP candidates prevailing in last week's election.  Here are headlines and excerpts:

"What Youngkin’s parole board promise signals for Virginia’s criminal justice system":

Governor-elect Glenn Youngkin promises to fire and replace the board after an investigation last year found its members weren’t following the board’s own rules. Attorney general-elect Jason Miyares also says his office will re-investigate what happened.  Come January of next year, Virginia will have a republican governor for the first time since 2014. The new leadership is expected to bring new policies — and a new, Republican-appointed parole board.

While claiming victory last week in northern Virginia, Youngkin echoed what was one of his key campaign promises.  “We will replace the entire parole board on day one,” he said....  The promise comes during the ongoing parole board scandal.  Last year, the state’s watchdog agency found Virginia’s parole board violated the law, specifically failing to notify local prosecutors and victims’ families of some releases.  “The most that we can kind of conclude from that whole saga was that the board was not following its own rules and needed to do a better job of doing that,” said 8News Political Analyst Rich Meagher, on Monday....

Meagher said with a new, Youngkin-appointed board, we should expect changes.  “The parole board is considered more of a politicized board and it represents the interest of the party and the party’s ideology,” he said. All of the board’s five current members were appointed by Democratic governors Terry McAuliffe and Ralph Northam between 2014 and 2020.

The state’s new self-described “top cop” Attorney General-elect Jason Miyares doesn’t have any direct control over the board or its decisions. However, Miyares said he’s expecting Youngkin’s appointees to more heavily consider victim input when considering paroles. “I think that’s a critical component,” Miyares said last week.

This is perhaps bad news for some convicts seeking a second chance and good news for victims’ families.  “Youngkin very clearly wants to take a very tough law and order approach so we will definitely see fewer of these parole releases almost guaranteed over the next few years,” Meagher said.

Since parole was abolished in 1995, the parole board only considers eligible people convicted before then. Meagher said what will likely impact even more Virginians is Youngkin and Miyares’ approach to criminal justice. “It signals that there is a change coming,” Meagher said. “I think the democrats have been trying to push for more rehabilitation, less of a focus on incarceration in previous years, and that’s most likely going to change with Youngkin,” Meagher said.

"Virginia AG-elect Miyares seeks legal way to override 'social justice' DAs and 'do their job for them'"

Virginia Attorney General-elect Jason Miyares said that he and Governor-elect Glenn Youngkin will pursue legislation to enable the state's attorney general to circumvent "social justice" commonwealth's attorneys who refuse to vigorously prosecute crimes.

At a news conference on Thursday, Miyares laid out "one of our major legislative initiatives" which Youngkin "has already indicated that he would sign… into law."

Under current law, the AG's office can prosecute a case on behalf of a commonwealth's attorney — Virginia's version of a district attorney (DA) — so long as the DA requests it.

The new bill "would essentially say, if the chief law enforcement officer in a jurisdiction — either the chief of police or the sheriff — makes a request because a commonwealth's attorney is not doing their job, then I'm going to do their job for them," Miyares said.  "I'm thinking specifically, some of the so-called ‘social justice’ commonwealth's attorneys that have been elected particularly in Northern Virginia. We're obviously aware of some pretty horrific cases" where these DAs have not pursued justice.

On Election Day, an encouraging report about moves away from prison gerrymandering

NBC News has this new encouraging piece that seems fitting for Election Day 2021. The article is fully headlined "States rethink 'prison gerrymandering' in 2020 redistricting process: More than a dozen states are changing how they handle incarcerated Americans in redistricting maps, unwinding a practice critics call 'prison gerrymandering'." Here are excerpts:

More than a dozen states are changing how they factor incarcerated Americans in redistricting maps this year, unwinding a longstanding practice that critics call “prison gerrymandering.”

The changes were spurred by state and national advocacy over concerns on how mass incarceration and the increasingly partisan process of drawing political district lines for elections was affecting people of color in state and local elections, and research that helped indicate how much communities of color were losing because of these changes.

"When you have people sharing their stories about what it feels like to have your body counted to inflate the vote of prison staff who honestly might be abusing you on any given day, to hurt your family and community's representation back home is just so emotional and really moving," said Villanova University Professor Brianna Remster, who has studied the effects of this practice on states. "People sharing their stories is really what got lots of folks thinking about it."...

Counting incarcerated residents at the site of their prison puts large blocks of residents in districts where the vast majority cannot vote and likely have no ties.  In practice, experts say, it allocates prisoners' political representation to often rural and white districts where prisons are located at the expense of urban, more diverse districts where incarcerated people lived before their convictions.  Changing the maps so that prisoners are counted in their home districts would reverse that in many places.

According to the Prison Policy Initiative, a nonpartisan criminal justice-focused think tank, Washington, Virginia, New Jersey, Nevada, Illinois, Connecticut, Colorado, and California have all passed legislation in the last few years adding or expanding policies to count at least some prisoners in their home districts in some or all local, state, or federal district lines, instead of at the location of their prison.  Those states join Maryland and New York, which started placing incarcerated residents at their last known address in the 2010 redistricting cycle; Maryland does so for both state, federal, and county districts, while New York made the change in state and local districts.

Other states are making the change during this cycle, including Delaware, where legislation from 2010 will be implemented this year.  Pennsylvania’s redistricting commission also recently decided to return prisoners whose sentences would expire by the end of the decade to their home districts, and more states are lining up to follow.  Montana’s redistricting commission is reportedly considering similar reforms while Rhode Island’s commission has said it will address the issue soon.  In New York, voters will weigh a ballot measure on Tuesday that would expand the reform to the state’s Congressional districts and codify the change into the state constitution....

Illinois’ legislation won’t be implemented until the next redistricting cycle, but in total, at least 12 states will deploy legislative maps that put some incarcerated Americans back in their home districts this year. In total, approximately half the nation now lives in a state that's formally rejected the practice.  The laws and policies vary on the mechanics — like how prisoners are returned to their home districts within the data, which legislative district lines are affected, whether the change applies to federal or state prisoners or both — but experts say the change will have a considerable effect on communities of color....

The numbers aren't big enough to influence Congressional districts, experts said, but significant numbers are seen in state and more local level districts.  According to the Prison Policy Initiative, 40 percent of one state House district in New Hampshire is incarcerated people.  In Connecticut, state House District 59 is 14 percent incarcerated, the group said. Drill down into the smallest county-level district maps and the numbers get bigger.  In Juneau County, Wisconsin, 80 percent of the county's District 15 are incarcerated, giving the handful of eligible voters there enormous political power.