Thursday, April 01, 2021

Notably split Sixth Circuit panel finds way-above guideline felon-in-possession sentence to be substantively unreasonable

Earlier this week, a Sixth Circuit panel handed down a split (unpublished) opinion finding an above-guideline sentence substantively unreasonable in US v. Stanton, No. 20-5320 (6th Cir. Mar. 30, 2021) (available here).  Any and every circuit ruling that finds a sentence substantively unreasonable is quite notable because such opinions are quite rare — for example, USSC data shows only six such reversals in Fiscal Year 2019 and only eight such reversals in Fiscal Year 2020.  (Indeed, with this Sixth Circuit Stanton ruling finding an above-guideline sentence substantively unreasonable handed down on the same day that the Fourth Circuit found a within-guideline sentence substantively unreasonable in Freeman (discussed here, opinion here), one might be tempted to remember March 30, 2021 as an historic day for reasonableness review.)

The majority and dissenting opinions in Stanton are worth full reads, and here is how the majority opinion gets started and wraps up:

Dustin Stanton challenges his 108-month sentence for one count of unlawful possession of a firearm as substantively unreasonable.  Stanton argues that the district court did not provide sufficiently compelling reasons to justify nearly tripling his maximum guideline sentence of 37 months.  We agree.

In sum, based on the reasons it provided at sentencing, the district court “placed too much weight on the § 3553(a) factors concerning criminal history [and] deterrence . . . without properly considering sentencing disparities.”  See Perez-Rodriguez, 960 F.3d at 758. “By ‘relying on a problem common to all’ defendants within the same criminal history category as [Stanton]—that is, that they have an extensive criminal history — the district court did not give a sufficiently compelling reason to justify [its extreme variance].” Warren, 771 F. App’x at 642 (quoting United States v. Poynter, 495 F.3d 349, 354 (6th Cir. 2007)).  Though Stanton’s continued recidivism and his previous 84-month sentence for the same crime may ultimately warrant an upward variance, they are not — without more — sufficiently compelling justifications for nearly tripling his maximum guideline sentence for a mine-run offense.  See Boucher, 937 F.3d at 714 (vacating sentence as substantively unreasonable and noting that “after the district court reweighs the relevant § 3553(a) factors” the defendant “may or may not be entitled to a” variance).

And here is how Judge Thapar starts and ends his dissent:

District judges are not at liberty to turn a blind eye to reality at sentencing.  Instead, the sentencing factors in the United States Code require judges to consider the real-world consequences of a prison term.  Will the sentence protect the public?  Will it deter the defendant?  What does a defendant’s criminal history tell the court about his likelihood of recidivism?  Are there positive factors that might cut the other way?  The sentencing guidelines help answer these questions.  But district judges understand better than most that the guidelines are not binding for a reason: They don’t fit every case.  Especially one like Dustin Stanton’s.  Here, a conscientious district judge had a violent, repeat offender in front of him.  The last time Stanton was in federal court, Judge Waverly Crenshaw’s colleague sentenced him to 84 months.  Barely a year after his release, Stanton was back — as violent as ever, and for the same offense.  So Judge Crenshaw did what good judges do.  He balanced the sentencing factors and came up with a fair sentence: 108 months.  I respectfully dissent from making him do it again....

Fair sentencing is a key goal of our criminal justice system. The sentencing guidelines help further that goal. Still, district judges must exercise independent judgment when imposing a sentence. Sometimes the reality of a case justifies a variance downward. Sometimes, it justifies the opposite. Here, Judge Crenshaw decided that Stanton’s case called for an upward variance. That decision was reasonable. Thus, I respectfully dissent.

April 1, 2021 in Booker in district courts, Booker in the Circuits, Gun policy and sentencing, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, March 30, 2021

Fascinating split Fourth Circuit ruling finds lawyer ineffective and 210-month sentence substantively unreasonable for addicted opioid distributor

A helpful reader made sure I did not miss an amazingly interesting split Fourth Circuit panel ruling today in US v. Freeman, No. 19-4104 (4th Cir. Mar. 30, 2021) (available here).  I recommend the entire lengthy decision, which could probably serves as a foundation for a dozen federal sentencing classes because of all the issues raised, both directly and indirectly, by the case.  Here is the start and a few key parts of the 21-page majority opinion authored by Judge Gregory:

Precias Freeman broke her tailbone as a teenager, was prescribed opioids, and has been addicted to the drugs ever since. In 2018, she was sentenced to serve more than 17 years in prison for possession with intent to distribute hydrocodone and oxycodone in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). After Freeman’s appointed counsel initially submitted an Anders brief asking for the Court’s assistance in identifying any appealable issues, we directed counsel to brief whether Freeman’s sentence is substantively reasonable and whether Freeman received ineffective assistance of counsel on the face of the record. On both grounds, we vacate Freeman’s sentence and remand this case for resentencing....

Because Freeman’s counsel unreasonably failed to argue meritorious objections [to the presentence report's guideline calculations] and advised his client to waive those objections without understanding the gravity of that waiver — and because those objections would have resulted in a reduction of the Guidelines range applicable to Freeman’s sentence — counsel was constitutionally ineffective....

In sentencing Freeman to serve 210 months, the district court did not address sentencing disparities nor fully consider the history and circumstances of the defendant in relation to the extreme length of her sentence. With regard to sentencing disparities, counsel provides this Court with data obtained from the United States Sentencing Commission’s 2018 Sourcebook of Federal Sentencing Statistics tending to show that Freeman’s sentence is significantly longer than those of similarly-situated defendants...

Based on the disparity between her sentence and those of similar defendants, and on the overwhelming record evidence of Freeman’s addiction to opioids, we conclude that Freeman has rebutted the presumption of reasonableness and established that her sentence is substantively unreasonable.  To the extent that the court referenced the danger of opioids in sentencing Freeman, it was only to condemn Freeman for selling them.  While this was certainly not an improper factor for the district court to consider, it also does not reflect the full picture.  And although the district court stated that Freeman was “no doubt a major supplier” of hydrocodone, it failed to consider that the amount that Freeman sold was frequently no more than half of what she was taking herself.

Judge Quattlebaum's dissent runs 26 pages and it includes some scatter plots! It starts and ends this way:

This sad case illustrates the opioid epidemic ravaging our country.  Precias Freeman is a victim of this epidemic.  As a teenager, she succumbed to the highly addictive nature of opioids in a way that continues to wreak havoc on her life.  As a fellow citizen, I am heartbroken over the toll her addiction has levied.  But Freeman chose to be a culprit too.  By her own admission, she prolifically forged prescriptions to obtain opioids for years — not just for herself, but to sell to others.  Whatever role her addiction played, that conduct was plainly criminal and certainly not bereft of “victims.” Maj. Op. at 21. Thus, today, we consider the sentence she received after pleading guilty of possession with intent to distribute two opioids, Hydrocodone and Oxycodone.  The majority vacates Freeman’s sentence for two reasons.  It concludes that the sentence was substantively unreasonable and that Freeman received ineffective assistance of counsel. Both holdings are unprecedented in our circuit....

I have great sympathy for Freeman’s circumstances. Her story reflects failures in our community.  One could argue her sentence does not reflect sound policy. But that does not make it unreasonable under the law.  And while the record is concerning regarding the effectiveness of counsel Freeman received, it does not conclusively demonstrate a failure to meet the constitutional bar at this juncture.  I dissent.

For a host of reasons, I hope the Justice Department has the good sense not to seek en banc review and that resentencing, rather than further costly litigation over a suspect and long prison term, is the next chapter is this all-too-common variation on the modern story of the opioid epidemic.

March 30, 2021 in Booker in the Circuits, Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Four notable new short reports on prison populations from the Bureau of Justice Statistics

I received this press release this morning pointing me to a number of new notable publications. Here is the text of the release, with links to the materials:

The Department of Justice’s Bureau of Justice Statistics today released Time Served in State Prison, 2018.  This report presents findings on the time served by prisoners released from state prison in 2018, including the length of time served by most serious offense and the percentage of sentence served.  Findings are based on data from BJS’s National Corrections Reporting Program, which is an annual voluntary data collection of records on prisoners submitted by state departments of corrections.

BJS also released three briefs: Veterans in Prison, Parents in Prison and Their Minor Children, and Disabilities Reported by Prisoners. The brief on veterans describes their demographics, offenses, sentence length, military branch and combat experience.  The brief on parents provides demographic information about prisoners who have at least one minor child and the number of minor children reported by parents in prison.  The brief on disabilities details statistics about demographics and types of disabilities reported by prisoners.  The findings are based on data collected in the 2016 Survey of Prison Inmates, a survey conducted through face-to-face interviews with a sample of state and federal prisoners.

Time Served in State Prison, 2018 (NCJ 255662) by BJS Statistician Danielle Kaeble

Veterans in Prison: Survey of Prison Inmates, 2016 (NCJ 252646) by BJS Statisticians Laura M. Maruschak, Jennifer Bronson, Ph.D. (former) and Mariel Alper, Ph.D. (former)

Parents in Prison and Their Minor Children: Survey of Prison Inmates, 2016 (NCJ 252645) by BJS Statisticians Laura M. Maruschak, Jennifer Bronson, Ph.D. (former) and Mariel Alper, Ph.D. (former)

Disabilities Reported by Prisoners: Survey of Prison Inmates, 2016 (NCJ 252642) by BJS Statisticians Laura M. Maruschak, Jennifer Bronson, Ph.D. (former) and Mariel Alper, Ph.D. (former)

The Bureau of Justice Statistics of the U.S. Department of Justice is the principal federal agency responsible for collecting, analyzing and disseminating reliable statistics on crime and criminal justice in the United States. Doris J. James is the acting director.

March 30, 2021 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Monday, March 29, 2021

New empirical study finds "nonprosecution of a nonviolent misdemeanor offense leads to large reductions in the likelihood of a new criminal complaint"

This local press piece from Boston reports on new local empirical work that is likely to garner a lot of attention around the nation. The press article is titled "Study finds not prosecuting misdemeanors reduces defendants’ subsequent arrests," and it discusses at length the findings in this new Working Paper (also here) titled "Misdemeanor Prosecution" authored by Amanda Agan, Jennifer Doleac and Anna Harvey. Here is the abstract of the Working Paper:

Communities across the United States are reconsidering the public safety benefits of prosecuting nonviolent misdemeanor offenses. So far there has been little empirical evidence to inform policy in this area. In this paper we report the first estimates of the causal effects of misdemeanor prosecution on defendants' subsequent criminal justice involvement. We leverage the as-if random assignment of nonviolent misdemeanor cases to Assistant District Attorneys (ADAs) who decide whether a case should move forward with prosecution in the Suffolk County District Attorney's Office in Massachusetts. These ADAs vary in the average leniency of their prosecution decisions. We find that, for the marginal defendant, nonprosecution of a nonviolent misdemeanor offense leads to large reductions in the likelihood of a new criminal complaint over the next two years. These local average treatment effects are largest for first-time defendants, suggesting that averting initial entry into the criminal justice system has the greatest benefits. We also present evidence that a recent policy change in Suffolk County imposing a presumption of nonprosecution for a set of nonviolent misdemeanor offenses had similar beneficial effects: the likelihood of future criminal justice involvement fell, with no apparent increase in local crime rates.

And here is part of the discussion from the press piece highlighting why this is research could prove so potent:

A study examining the effect of declining to prosecute lower-level nonviolent offenses — a signature policy adopted by Suffolk District Attorney Rachael Rollins that has drawn both praise and scorn — suggests the approach leads to significantly less future involvement by those defendants in the criminal justice system.

The new study, which looked at cases handled by the Suffolk County DA’s office going back to 2004, found that those defendants not prosecuted for lower-level misdemeanor cases were 58 percent less likely to face a criminal complaint over the following two years than those who faced prosecution for similar charges. 

The analysis, which is the first of its kind to rigorously evaluate a policy being embraced by reform-minded prosecutors across the country, provides striking evidence that steering defendants, particularly first-time offenders, away from prosecution and a criminal record can reduce their chances of cycling back into the legal system.

The findings, being released on Monday by the National Bureau of Economic Research, are likely to bring heightened attention to the question of how best to deal with lower-level offenses, an issue that has become a controversial topic among law enforcement officials and advocates who say prosecution of these cases exacts an enormous toll on poor and minority communities without enhancing public safety....

“We think this is pretty compelling evidence of beneficial effects from not prosecuting,” said Anna Harvey, a professor of politics at New York University, who led the research along with Amanda Agan, an economist at Rutgers University, and Jennifer Doleac, an economist at Texas A & M University.  The higher rates of new criminal complaints among those who did face prosecution for lower-level charges, on the other hand, mean “we may in fact be undermining public safety by criminalizing relatively minor forms of misbehavior,” write Harvey and her colleagues....

Alexandra Natapoff, a professor at Harvard Law School who has extensively studied the prosecution of misdemeanor offenses, said the study “gives empirical teeth to just how costly and counterproductive low-level misdemeanor arrests and court criminal convictions can be.”  Natapoff, author of the 2018 book Punishment Without Crime: How Our Massive Misdemeanor System Traps the Innocent and Makes America More Unequal, said we have paid far too little attention to the harmful impact on individuals and communities of prosecuting misdemeanors, which account for 80 percent of all criminal cases in the US.  “These cases that we treat as chump change, in fact, are destroying lives, and destroying families, and undermining the economic wellbeing of communities thousands of times over every day,” Natapoff said in a recent video explainer on the reach of misdemeanor convictions.

Miriam Krinsky, executive director of Fair and Just Prosecution, a group formed in 2017 to work with reform-minded DAs, called the study an affirmation of the changing approach to prosecution underway in a number of major cities.  “We are seeing a new normal among elected prosecutors who, like DA Rollins, share a view that we have prosecuted too many individuals who can be better addressed by treatment or support through a public health lens,” she said.  “It’s incredibly significant to see research like this that proves the value of the new thinking and the paradigm shift that’s taking place.”

March 29, 2021 in National and State Crime Data, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Thursday, March 18, 2021

Notable new Seventh Circuit panel opinion on ineffectiveness of counsel failing to raise meritorious guideline argument

A helpful reader alerted me to a notable new ineffective assistance opinion from the Seventh Circuit in Bridges v. US, No. 20-1623 (7th Cir. Mar. 17, 2021) (available here).  Here is how this opinion gets started:

This appeal raises fundamental questions about what is expected of defense counsel in the federal criminal justice system, where almost all defendants plead guilty.  Counsel must negotiate guilty pleas and argue for more lenient sentences, both of which require expert knowledge of the federal Sentencing Guidelines.  This knowledge is a core competency for federal criminal defense.  The issue here is whether a lawyer’s failure to raise an important and, in this case, ultimately meritorious guideline argument may constitute ineffective assistance of counsel even where there was no directly on-point precedent within the circuit at the relevant time.  We find that it may in this case.

Now in his sixties, petitioner Jeffery Bridges has been in and out of prison since he was a teenager and has been battling drug addiction even longer.  After staying out of trouble for eight years, Bridges got involved in drugs again and committed four robberies in two days in March 2017.  He netted scarcely $700 in total and was easily caught by the police. A federal grand jury indicted Bridges for four counts of robbery in violation of the Hobbs Act, 18 U.S.C. § 1951.

Bridges agreed to a guilty plea stipulating that he was subject to the guideline career offender enhancement, U.S.S.G. § 4B1.1, which could apply only if his crimes of conviction were “crimes of violence” as defined by the Guidelines.  This enhancement more than doubled his advisory guideline sentencing range.  The district court imposed a below-guideline sentence of 140 months.  Bridges did not appeal. He had waived that right in his plea deal.

Bridges now seeks postconviction relief under 28 U.S.C. § 2255, alleging he was denied effective assistance of counsel in pleading guilty.  He argues that his lawyer failed to realize and argue that Hobbs Act robbery did not then qualify as a “crime of violence” under the Guidelines, so he should not have been categorized as a career offender.  When Bridges pleaded guilty and was sentenced, there was no binding precedent in this circuit on this issue. Bridges argues that competent counsel still would have recognized the issue or at least known to investigate it.  The district court denied relief without holding a hearing, reasoning that counsel’s failure to anticipate arguments that we have not yet accepted cannot be constitutionally deficient.

We reverse for an evidentiary hearing on defense counsel’s performance under 28 U.S.C. § 2255(b).  First, we join the other circuits that have concluded that Hobbs Act robbery is not a “crime of violence” as that phrase is currently defined in the Guidelines.  Although we had not so ruled when Bridges pleaded guilty, the building blocks for a successful legal argument were already in place.  Effective counsel would have considered this question that was so important in this case.  At that time, minimal research would have uncovered a Tenth Circuit decision squarely holding that Hobbs Act robbery was no longer a crime of violence under a 2016 amendment to the guideline definition of a crime of violence.

We realize how counterintuitive it is to argue or hold that Hobbs Act robbery is not a crime of violence — and that counsel could be deficient for failing to argue for that unexpected result.  Yet defense lawyers, prosecutors, and judges in the federal system all appreciate that both statutory and guideline sentencing enhancements for recidivism and crimes of violence have produced many counterintuitive results over the last several decades.  During those years, both federal statutes and the Sentencing Guidelines have used the “categorical method” to classify prior convictions and current offenses.  The Sentencing Commission proposed guideline amendments in 2018 to reduce reliance on the categorical method. 83 Fed. Reg. 65400, 65407–65412 (Dec. 20, 2018).  The Commission has been unable to act on those proposed amendments, though, because it has lacked a quorum for years.  Bridges may be a beneficiary of that odd circumstance.

March 18, 2021 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Monday, March 15, 2021

Georgia Supreme Court affirms discretionary juve LWOP sentence despite judge's statement it could not find juvenile "irreparably corrupt"

In the next few months, perhaps in the coming weeks, we should be getting an opinion from the Supreme Court in Jones v. Mississippi to help us better understand if Eighth Amendment jurisprudence requires a sentencer to make a specific finding about a juvenile before exercising its discretion to impose a sentence of life without parole.  In the meantime, states continue to struggle with juvenile LWOP sentencing requirements amidst all the resentencings that had to take place after Miller v. Alabama prohibited mandatory LWOP for juveniles. 

This morning, the Supreme Court of Georgia in Moss v. Georgia, S20A1520 (Ga. Mar. 15, 2021) (available here), addressed this issue in a case in which the sentencing court suggested it was impossible to make a certain finding about a juvenile defendant.  Here is the start and a key passage from the unanimous ruling in Moss:

Jermontae Moss was convicted of felony murder, possession of a firearm during the commission of a crime, and theft by receiving stolen property in connection with the shooting death of Jose Marin. On appeal, Moss contends that his trial counsel provided constitutionally ineffective assistance and that the trial court erred in sentencing Moss—a 17-year-old juvenile at the time of the crimes—to life in prison without the possibility of parole (“LWOP”) for murder.  Neither of Moss’s contentions has merit, so we affirm....

It is true, as Moss points out, that at one point in its lengthy order the trial court also opined on the role of the “Divine” in the ultimate judgment of a human being:

This Court cannot find, in this case or in any other, that the Defendant himself is “irretrievably corrupt” or “permanently incorrigible.” And it is this Court’s firm opinion that no court at any level is ever able to make such a determination; it is beyond human capacity. Only a Divine Judge could look into a person and determine that he is permanently and irretrievably corrupt; that he has reached a state from which there is no return, no hope of redemption, no hope of any restoration.

(Emphasis in original.)  But we do not view Miller or Montgomery — or cases from this Court applying Miller and Montgomery, such as Veal, White, and Raines — as requiring the trial court to conduct a metaphysical assessment of a juvenile defendant.  Given the express determinations contained in the trial court’s order and summarized in part above, we cannot say that the trial court’s additional observations about the metaphysical — especially when viewed in the full context of the court’s order — somehow rendered the trial court’s analysis erroneous.

March 15, 2021 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Thursday, March 11, 2021

Split Washington Supreme Court, relying on state constitution, forbids mandatory LWOP sentences for those under 21

Today, via a 5-4 ruling in In re Pers. Restraint of Monschke and Bartholomew, No. 96772-5 (Wash. Mar. 11, 2021) (available here), the Supreme Court of Washington extended the reach of the US Supreme Court's Miller ruling by declaring mandatory LWOP for those under 21 to be unconstitutional (pursuant to Washington's state constitutional prohibition of "cruel punishment").  Here is how the majority opinion starts and ends:

Dwayne Earl Bartholomew and Kurtis William Monschke were each convicted of aggravated first degree murder and sentenced to life in prison without possibility of parole — a mandatory, nondiscretionary sentence under Washington’s aggravated murder statute.  RCW 10.95.030.  Bartholomew was 20 years old; Monschke was 19.  Many years after their convictions, each filed a personal restraint petition (PRP) asking us to consider whether article I, section 14 of our state constitution or the Eighth Amendment to the United States Constitution permits a mandatory life without parole (LWOP) sentence for youthful defendants like themselves.  Specifically, they ask us to decide whether the constitutional requirement that judges exercise discretion at sentencing, which forbids such mandatory LWOP sentences for those under 18, also forbids those sentences for 18- to 21-year-old defendants.

Modern social science, our precedent, and a long history of arbitrary line drawing have all shown that no clear line exists between childhood and adulthood.  For some purposes, we defer to the legislature’s decisions as to who constitutes an “adult.”  But when it comes to mandatory LWOP sentences, Miller’s constitutional guarantee of an individualized sentence — one that considers the mitigating qualities of youth — must apply to defendants at least as old as these defendants were at the time of their crimes.  Miller v. United States, 567 U.S. 460, 469-80, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012).  Accordingly, we grant both PRPs and order that Bartholomew and Monschke each receive a new sentencing hearing....

There is no meaningful cognitive difference between 17-year-olds and many 18-year-olds.  When it comes to Miller’s prohibition on mandatory LWOP sentences, there is no constitutional difference either.  Just as courts must exercise discretion before sentencing a 17-year-old to die in prison, so must they exercise the same discretion when sentencing an 18-, 19-, or 20-year-old.  We grant Monschke’s and Bartholomew’s PRPs and vacate their mandatory LWOP sentences.  We remand each case for a new sentencing hearing at which the trial court must consider whether each defendant was subject to the mitigating qualities of youth.

The dissent authored by Justice Owens begins this way:

Kurtis Monschke and Dwayne Bartholomew committed brutal murders decades ago.  At the time, they were 19 and 20 years old, respectively.  They were not children. Under Washington law, when an individual turns 18 years old, they are empowered to make a range of life-altering decisions: suddenly, they can form contracts, drop out of school, get married, work a hazardous job, and serve in the military.  But at this same moment, they also obtain the full responsibilities and consequences of adulthood, and the court will no longer intervene on their behalf on the basis of age.  Nonetheless, the lead opinion holds today that we must create an exception in treating these individuals as adults when they commit aggravated murder between the ages of 18 and 20.  Mandatory life without parole (LWOP) sentences are now prohibited for this age category.  The lead opinion crafts this new rule by filtering our state constitution’s “cruel punishment” prohibition through a handful of scientific studies and circumvents the reality that no legislatures or courts in the other 49 states have ever recognized such a protection.  WASH. CONST. art. I, § 14.  As the final arbiters of what “cruel” means under article I, section 14 of our state constitution, this court must use a disciplined and evenhanded approach in evaluating its meaning. If we do not, we risk transforming our protection against “cruelty” into whatever is supported by a smattering of studies and five concurring members of this court.

At the heart of this case is the important question of when a person should be held fully accountable as an adult.  This is a question that requires a meticulous examination of a number of scientific, moral, ethical, and practical considerations. Our court is not a legislature, and it is insufficiently equipped to decide this issue on selectively presented evidence put forth by limited parties on a constrained schedule.  The lead opinion broadly seeks to protect against the “unacceptable risk that youthful defendants without fully developed brains will receive a cruel LWOP sentence.”  Lead opinion at 29. But I struggle to identify at what precise age we will stop redrawing these lines based on this brain development evidence, be it 20, 22, 25, or even older.  I further caution that today’s decision may eventually compel us to revisit and invalidate a staggering number of LWOP and Sentencing Reform Act of 1981 (SRA), ch. 9.94A RCW, sentences for this growing group under our recent decisions in State v. Bassett and State v. Houston-Sconiers.  This task would tremendously burden the State’s resources and the victims’ families. I respectfully dissent.

March 11, 2021 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Monday, March 08, 2021

Prisons as first frontier of the welfare state in The Last Frontier state

The nickname of the state of Alaska is The Last Frontier, which inspired the title of this post about this local article headlined "Alaska now spends more on prisons than its university system, and the gap is widening."  Here are excerpts explaining what I mean by the post title (with my emphasis added):

Alaska is now spending more on prisons than its state university, a reversal of the state’s longtime practice, and the gap would widen under a draft budget being considered by the state legislature.

Since 2015, when adjusted for inflation, Alaska has cut by 22.4% the amount it spends on the operations of all state agencies combined.  The Alaska Department of Corrections is the only agency whose inflation-adjusted budget has grown during that period.

Sen. Click Bishop, R-Fairbanks, called the current situation “sad.”  Bishop is co-chairman of the Senate Finance Committee, which on Thursday held a hearing that questioned whether the Legislature and governor have reached the limit of budget cuts they can make without significant changes to state law.

Though state spending (not including the Permanent Fund Dividend) has declined by almost half from its peak in 2015, most reductions came early in that period.  The cuts of the past two years have been almost entirely erased by inflation and other annual cost increases....

The budgets for the University of Alaska and the state prison system illustrate the problems now faced by the Legislature and governor.  In 2019, the governor signed an agreement with the University of Alaska Board of Regents that called for three years of budget cuts.  Though the Alaska Legislature was not party to the agreement, it has followed it so far.

At the time, the university system received $327 million from the portion of the budget paid for with revenue from the Permanent Fund and taxes. In the budget under consideration now by the Legislature, the university is slated to receive just $257 million.

One month before signing the university agreement, Dunleavy signed a bill that rolled back prior prison reform legislation.  That prior legislation, known as Senate Bill 91, had encouraged alternatives to prison, such as electronic monitoring, halfway houses and supervised release.

SB 91 reduced prison costs, but many Alaskans believed it was contributing to an increase in property crime and pushed for its repeal.  Since then, the budget of the Alaska Department of Corrections has grown from $291 million in 2019 to $345 million in the plan now being considered by the Legislature.

Much of that increase is due to increases in spending on inmate healthcare and rehabilitation, budget documents show. Department officials told a legislative panel last month that 65% of Alaska’s prison inmates are mentally ill, 80% have some kind of substance abuse disorder, and 65% have reported some kind of traumatic brain injury. Almost one in four inmates is positive for Hepatitis C.

Several hundred inmates were released from custody to relieve prison crowding during COVID-19, but the department now projects a continued rise in the state’s prison population, estimating that by June 2025, more than 4,900 Alaskans will be in prison.  As of February, more than half of the state’s prison population consisted of people who were awaiting trial, not those who had been sentenced.

I share the view that this situation is "sad" with more money now to be spent by Alaskans to cage its citizens than to provide higher education. And it is especially interesting to read that the increased prison spending is mostly for "healthcare and rehabilitation," which likely includes some educational programming, and that the majority of Alaskan prison inmates are mentally ill and/or have substance abuse disorder and/or a serious brain injury.  As is likely true in many states, Alaska is spending more and more monies on prisons in order to tend to its most vulnerable populations, though only after they get involved with the criminal justice system (while other welfare programs like higher education get cut in order to provide welfare services to the incarcerated).

March 8, 2021 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (0)

Thursday, March 04, 2021

Lots of SCOTUS talk and debate over the "categorial approach" and ACCA proof burdens in immigration decision

The Supreme Court this morning handed down a 5-3 ruling in Pereida v, Wilkenson, No. 19-438 (S. Ct. Mar. 4, 2021) (available here), in which the majority holds that, under the Immigration and Nationality Act (INA), a person subject to removal seeking discretionary relief must prove a prior conviction is not a "disqualifying criminal offense." Federal sentencing fans may already sense where this is going because so much of federal sentencing law, particularly the Armed Career Criminal Act (ACCA), is concerned a lot about whether a prior conviction qualifies a defendant for certain sentencing enhancements. In his opinion for the majority, Justice Gorsuch talks a good deal about these matters, and here are a few passages that caught my eye:

We have described the modified categorical approach as requiring courts to “review . . . record materials” to determine which of the offenses in a divisible statute the defendant was convicted of committing.  Mathis, 579 U. S., at ___ (slip op., at 16).  We have acknowledged that this process calls on courts to consider “extra-statutory materials” to “discover” the defendant’s crime of conviction.  Descamps v. United States, 570 U.S. 254, 263 (2013).  We have observed that these “materials will not in every case speak plainly,” and that any lingering ambiguity about them can mean the government will fail to carry its burden of proof in a criminal case.  Mathis, 579 U.S., at ___ (slip op., at 18) (citing Shepard v. United States, 544 U.S. 13, 21 (2005)).  And we have remarked that “the fact of a prior conviction” supplies an unusual and “arguable” exception to the Sixth Amendment rule in criminal cases that “any fact that increases the penalty for a crime” must be proved to a jury rather than a judge. Apprendi v. New Jersey, 530 U.S. 466, 489, 490 (2000).

Really, this Court has never doubted that the who, what, when, and where of a conviction — and the very existence of a conviction in the first place — pose questions of fact.  Nor have we questioned that, like any other fact, the party who bears the burden of proving these facts bears the risks associated with failing to do so....

In the criminal context, this Court has said that judges seeking to ascertain the defendant’s crime of conviction should refer only to a “limited” set of judicial records.  Shepard, 544 U.S., at 20–23. In part, the Court has circumscribed the proof a judge may consult out of concern for the defendant’s Sixth Amendment right to a trial by jury. If a judge, rather than a jury, may take evidence and make findings of fact, the thinking goes, the proceeding should be as confined as possible. Id., at 25–26; see also Apprendi, 530 U. S., at 487–490 (citing Almendarez-Torres v. United States, 523 U.S. 224 (1998)). But Sixth Amendment concerns are not present in the immigration context

Justice Breyer's dissent in this case also speaks on the "categorial approach" and ACCA jurisprudence at some length.   I will leave it to others to let me know if there are particularly important passages in the dissent (or in the majority) that sentencing fans ought to consider at greater length.

March 4, 2021 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Wednesday, March 03, 2021

US Sentencing Commission issues big new report on "Federal Armed Career Criminals: Prevalence, Patterns, and Pathways"

The US Sentencing Commission has just released this big report providing "information on offenders sentenced under the Armed Career Criminal Act, including an overview of the Act and its implementation in the federal sentencing guidelines. The report also presents data on offender and offense characteristics, criminal histories, and recidivism of armed career criminals."  Here are the "Key Findings" appearing in the first part of the report:

Key Findings
• Armed career criminals consistently comprise a small portion of the federal criminal caseload, representing less than one percent of the federal criminal caseload.  During the ten-year study period, the number of armed career criminals decreased by almost half, from 590 in fiscal year 2010 to 312 in fiscal year 2019.
• Armed career criminals receive substantial sentences.  Offenders who were subject to the ACCA’s 15-year mandatory minimum penalty at sentencing received an average sentence of 206 months in fiscal year 2019.  Offenders who were relieved of the mandatory minimum for providing substantial assistance to the government received significantly shorter sentences, an average of 116 months in fiscal year 2019.
• Armed career criminals have extensive criminal histories. Even prior to application of the armed career criminal guideline, 90.4 percent of armed career criminals qualified for the three most serious Criminal History Categories under the guidelines, and almost half (49.4%) qualified for Criminal History Category VI, the most serious category under the guidelines. 
• The overwhelming majority of armed career criminals had prior convictions for violent offenses. In fiscal year 2019, 83.7 percent of armed career criminals had prior convictions for violent offenses, including 57.7 percent who had three or more such convictions.  Despite the predominance of violence in their criminal history, the most common prior conviction for armed career criminals was for public order offenses, with 85.3 percent having at least one such prior conviction.
• More than half (59.0%) of armed career criminals released into the community between 2009 and 2011 were rearrested within an eight-year follow-up period. When armed career criminals recidivated, their median time to rearrest was 16 months and the most serious common new offense was assault (28.2%).
• Recidivism rates of armed career criminals varied depending on whether they had prior convictions for violent offenses and the number of such prior convictions.
      ◦ Nearly two-thirds (62.5%) of armed career criminals with prior violent convictions and no prior drug trafficking convictions, and more than half (55.0%) of armed career criminals with both prior violent and drug trafficking convictions were rearrested within the eight-year follow-up period.  In comparison, only 36.4 percent of armed career criminals with prior drug trafficking convictions and no prior violent convictions were rearrested during the study period, but there were only 12 such offenders.
     ◦ Furthermore, 61.7 percent of armed career criminals with three or more prior violent convictions were rearrested during the eight-year follow-up period compared to 48.9 percent of armed career criminals with one or two prior violent convictions

March 3, 2021 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics | Permalink | Comments (0)

Tuesday, March 02, 2021

En banc Second Circuit needs 120 pages and five opinions to sort out whether NY first-degree manslaughter qualifies as a federal "violent crime"

Great scottI generally do not closely follow lower federal court rulings about what state convictions qualify as predicates for sentencing enhancement under the Armed Career Criminal Act ("ACCA") or the career offender sentencing guidelines. I have a hard time just keeping up with the many Supreme Court ACCA cases, and I have previously suggested in this post a few years ago that modern ACCA jurisprudence must reside as some level of hell in Dante's Inferno because this caselaw is so dang inscrutable. 

But a helpful reader alerted me to a new en banc Second Circuit decision today in US v. Scott, No. 18-163-cr (2d Cir. Mar. 2, 2021) (available here), which seems like a useful reminder of how nuts this jurisprudence can be.  Here is how the majority opinion in Scott gets started:

Defendant-appellee Gerald Scott is a violent criminal, who has repeatedly threatened, and on two occasions taken, human life.  The killings were undoubtedly brutal: Scott shot one of his victims in the head at point-blank range; he stabbed the other to death. For these killings, Scott stands twice convicted in New York State of first-degree manslaughter under N.Y. Penal Law § 125.20(1), a homicide crime second only to murder in its severity.   At issue on this appeal is whether Scott’s manslaughter convictions are for violent crimes. An affirmative answer might appear obvious to a man on the street aware of Scott’s conduct.  But the laws relevant here — the Armed Career Criminal Act (“ACCA”), see 18 U.S.C. § 924(e)(2)(B), and the Career Offender Sentencing Guideline, see U.S.S.G. § 4B1.2(a) — do not identify violent crimes by looking to what a defendant actually did. Rather, they look to the minimum he might have done and still been convicted.  This inquiry focuses on a crime’s elements, asking whether they categorically require a defendant’s use of physical force, specifically violent physical force.  See Curtis Johnson v. United States, 559 U.S. 133, 140, 144 (2010) (defining physical force required by ACCA).  Applying that standard here, we conclude that first-degree manslaughter is a categorically violent crime because its elements — (1) the causation of death (2) by a person intent on causing at least serious physical injury — necessarily involve the use of violent force.

The occasion for our ruling is the United States’ appeal from an amended judgment of conviction entered on January 12, 2018, in the United States District Court for the Southern District of New York (Laura Taylor Swain, Judge), which resentenced Scott to time served (then totaling approximately 11 years, 3 months) for attempted Hobbs Act robbery and related firearms crimes. Resentencing followed the district court’s grant of Scott’s 28 U.S.C. § 2255 motion to vacate his original 22-year sentence.  See United States v. Scott, No. 06 CR 988- LTS, 2017 WL 2414796, at *3 (S.D.N.Y. June 2, 2017).  The district court concluded that it had mistakenly relied on ACCA and the Career Offender Guideline in imposing Scott’s initial sentence.  It reasoned that Scott’s two prior convictions for first-degree manslaughter did not qualify as predicate violent crimes because “first degree manslaughter can be committed in New York State by omission and thus without using force.”  Id. at *2 (emphasis added).  A divided panel of this court agreed, with the majority analogizing omission to “complete inaction,” and concluding therefrom that the crime could be committed without the use of force.  See United States v. Scott, 954 F.3d 74, 78 (2d Cir. 2020) (holding first-degree manslaughter “not a predicate crime of violence because it can be committed by complete inaction and therefore without the use of force”).

After rehearing the case en banc, we reject this reasoning, which, carried to its logical — or illogical — conclusion, would preclude courts from recognizing even intentional murder as a categorically violent crime because, presumably, it is just as possible for a defendant to cause a person’s death by omission when the defendant’s specific intent is to kill, see N.Y. Penal Law § 125.25(1) (second-degree murder), as when his specific intent is to cause serious physical injury, see id. § 125.20(1) (first-degree manslaughter).  We decline to take the law down a path leading so far from the violent reality of these two most serious, intentionally injurious homicide crimes.

Disconcertedly, the majority needed 50 more pages to explain why first-degree manslaughter in New York qualifies as a federal "violent crime," and then concurring and dissenting opinions needed 70 more pages to debate a formalistic legal matter that is an awful artifice of poorly conceived and constructed federal sentencing law.  With the rocky jurisprudence of this case and the horrors of so many others, I would love to time warp back to the drafting of ACCA and urge a whole new approach to federal sentencing.  

March 2, 2021 in Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics | Permalink | Comments (2)

Monday, February 22, 2021

SCOTUS grants cert on yet another intricate Armed Career Criminal Act issue

The Supreme Court is back in action today after its February hibernation, and it kicked off a new round of activity with this long order list. Though I suspect some extended dissents from the denial of cert on non-criminal issues will garner the most attention, sentencing fans will be intrigued (or perhaps annoyed) that the Justices have taken up yet another case dealing with the intricacies of the Armed Career Criminal Act. The case is Wooden v. United States, No. 20-5279, and cert was granted on this question from the initial pro se cert petition:

Did the Sixth Circuit err by expanding the scope of 18 U.S.C. § 924(e)(1) in the absence of clear statutory defintiion with regard to the vague term "committed on occasions different from one another"?

The defendant's reply brief in support of the cert petition spotlights the facts and the extreme sentencing consequences at issue in Wooden:

Petitioner William Dale Wooden broke into a ministorage facility in Georgia one night in 1997.  He entered ten units during the course of the crime and later pleaded guilty to ten counts of burglary.  Were these burglaries committed “on occasions different from one another”?  Fifteen years in federal prison depends on the answer.  If not, Wooden’s sentence for possessing a firearm as a felon would have been only 21 to 26 months; he would have been “home by Christmas 2016.” D.Ct.  Dkt. 84, 1-2.

But the Sixth Circuit answered yes, affirming a harsh mandatory-minimum sentence.  So Wooden will remain incarcerated until 2028.  That wrongheaded decision exacerbated an acknowledged circuit split on an important and recurring question.

Most federal sentening fans know how intricate and consequential interpretations of ACCA can be for certain persons who illegally possess a firearm. But I still find the facts in a (largely unremarkable) case like Wooden remarkable.

As I read the government's filing, the defendant here at the time of sentencing had, besides the nearly 20-year-old ministorage burglaries, one other burglary conviction that was 10 years old and an assault conviction that was more than a quarter-century old.  Rather that having Wooden's illegal firearm possession sentence now turn on judicial consideration of the seriousness of his current offense conduct and his true criminal history, ACCA served to make 15 mandatory(!) years of federal prison time turn entirely on legal technicalities rather than thoughtful consideration of what justice and crime control demands. Sigh. 

February 22, 2021 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (6)

Wednesday, February 17, 2021

"'My Bewildering Brain Toils in Vain': Traumatic Brain Injury, the Criminal Trial Process, and the Case of Lisa Montgomery"

The title of this post is the title of this new paper available via SSRN and authored by Alison Lynch, Michael L. Perlin and Heather Cucolo.  Here is its abstract:

Individuals with traumatic brain injuries (TBI) have a greater risk of becoming justice-involved due to the role that many TBIs play in impulse control and judgment.  Attorneys assigned to represent this cohort may not have encountered individuals with TBI before, and may not be familiar with behavioral manifestations that could be relevant as a defense or as mitigation in individual cases. In this regard, TBI is grossly misunderstood.

A grave example of this point, and a foundation for this article, is the case of Lisa Montgomery, who despite evidence of serious mental illness and significant brain damage, was convicted, sentenced to death, and ultimately executed for the murder of a pregnant woman and the kidnapping of the woman’s unborn child.  Her case reflects all that is wrong with the way we treat criminal defendants with traumatic brain injuries.

In this paper, we discuss common ways that individuals with traumatic brain injuries become involved in the criminal justice system, and how attorneys can better prepare an effective defense or mitigation.  We consider, in some depth, several of the substantive areas of criminal law and procedure in which an understanding of TBI is especially significant (including, but not limited to, competency status, the insanity defense and the death penalty), and assess the quality of counsel –and experts -- in such cases, again, in some instances, using the Montgomery case as a prism.

We believe that one (at least partial) remedy for the current situation is a turn to therapeutic jurisprudence (TJ) The TJ doctrine emphasizes giving an individual client dignity, voice, validation and voluntariness of action and decision.  This is particularly important for an individual with TBI, who will likely have the capacity to make the majority of decisions about his case, but who may still need behavioral treatment or interventions for symptoms of the TBI.  We will discuss the ways that TJ plays into these issues, and how TJ must be the grounding of any representation of this population.  We conclude with some modest suggestions as to how we can begin to make needed changes in the criminal justice system to take all of these issues into account.

February 17, 2021 in Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0)

Thursday, February 11, 2021

Senators Durbin and Grassley re-introduce "COVID-19 Safer Detention Act"

As detailed in this post from last June, US Senators Dick Durbin and Chuck Grassley responded to the ugly realities of the COVID pandemic and its impact on incarcerated persons by introducing a modest, but still important, new bill to reform the procedures surrounding federal elderly home release and compassionate release.  Disappointingly, that bill never moved forward in the last Congress, but this press release reports that it is back on the docket for the new Congress.  Here are excerpts from the release:

Amid the COVID-19 public health pandemic, U.S. Senate Democratic Whip Dick Durbin (D-IL), Chair of the Senate Judiciary Committee, and U.S. Senator Chuck Grassley (R-IA), Ranking Member of the Senate Judiciary Committee, authors of the bipartisan First Step Act, landmark criminal justice reform legislation, introduced bipartisan legislation to reform the Elderly Home Detention Pilot Program and compassionate release from federal prisons.  Sadly, more than 200 federal prisoners with pre-existing medical conditions that made them more vulnerable to COVID-19 have died as a result of the virus, more than half of whom were over 60 years old.  Elderly offenders, the fastest-growing portion of the prison population, have much lower rates of recidivism and are much more expensive to incarcerate due to their health care needs.  

Since enactment of the First Step Act, the Federal Bureau of Prisons (BOP) has opposed the vast majority of compassionate release petitions.  Since March of last year, BOP has opposed nearly all compassionate release requests, while courts have granted more than 2,000 over the objections of the Department of Justice and BOP.  BOP has reportedly refused to approve any compassionate releases based on vulnerability to COVID-19.

“My legislation with Senator Grassley would help ensure that the most vulnerable prisoners are quickly released or transferred to home confinement for the remainder of their sentence – just as the First Step Act intended.  This is especially critical during the COVID-19 pandemic to protect against the spread of this deadly virus, which we know thrives in places like prisons.  I’m hopeful that we can take up legislation on a bipartisan basis so we can start to properly implement the First Step Act and protect communities from further COVID-19 outbreaks,” said Durbin.

“In the middle of a pandemic the federal government ought to be doing everything it can to protect the inmates in its care.  We already established important home confinement and early release programs in 2018, which are especially important right now as older inmates face very serious risks because of the virus.  Our bill will clarify and expand those programs we wrote into the First Step Act, so we can better protect these vulnerable populations,” Grassley said.

Specifically, the COVID-19 Safer Detention Act would reform the Elderly Home Detention Pilot Program and compassionate release by:

  • Clarifying that the percentage of time served required for the Elderly Home Detention Pilot Program should be calculated based on an inmate’s sentence, including reductions for good time credits (H.R. 4018, which passed the House by voice vote last Congress); 
  • Expanding the eligibility criteria for the Elderly Home Detention Pilot Program to include nonviolent offenders who have served at least 50 percent of their term of imprisonment;
  • Clarifying that elderly nonviolent D.C. Code offenders in BOP custody are eligible for the Elderly Home Detention Pilot Program and that federal prisoners sentenced before November 1, 1987 are eligible for compassionate release;
  • Subjecting elderly home detention eligibility decisions to judicial review (based on the First Step Act’s compassionate release provision); and
  • Providing that, during the period of the pandemic, COVID-19 vulnerability is a basis for compassionate release and shortening the period prisoners must wait for judicial review for elderly home detention and compassionate release from 30 to 10 days.

Joining Durbin and Grassley in cosponsoring the legislation are Senators Thom Tillis (R-NC), Sheldon Whitehouse (D-RI), Kevin Cramer (R-ND), Chris Coons (D-DE), Roger Wicker (R-MS), and Cory Booker (D-NJ). 

As the release reveals, Senators Durbin and Grassley are now the leading member of the Senate Judiciary Committee, which would seem to improve the odds of this bill moving forward. But, of course, Congress moves in mysterious ways, and I have learned never to expect too much from inside the Beltway.

February 11, 2021 in Impact of the coronavirus on criminal justice, Offender Characteristics, Prisons and prisoners | Permalink | Comments (0)

Friday, February 05, 2021

"Narrating Context and Rehabilitating Rehabilitation: Federal Sentencing Work in Yale Law School’s Challenging Mass Incarceration Clinic"

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

The Challenging Mass Incarceration Clinic (CMIC) at Yale Law School has been representing clients in federal sentencing and state postconviction cases since 2016.  Drawing on a blueprint I set forth in a 2013 article, the clinic teaches a model of noncapital sentencing practice that builds on the best capital defense sentencing practices and seeks to transform judges’ and prosecutors’ assumptions about criminal sentencing.

In this article, I set forth CMIC’s theoretical underpinnings and detail our interdisciplinary, trauma-informed approach to sentencing advocacy and clinical practice.  I then describe CMIC’s case outcomes, including variances which have reduced each of our clients’ prison time an average of five years below the United States Sentencing Guidelines range and more than 18 months below prosecutors’ recommended sentences.  CMIC’s work has also produced innovations to traditional client-centered, holistic lawyering; enhanced approaches to working with experts; and yielded insights into the incorporation of defense-based victim outreach in appropriate cases.

Our experiences in CMIC raise several areas for future research, including whether the model will produce the kind of fundamental sentencing reform I predicted in my earlier work, and questions about fairness, risks, data, and scalability.  I am publishing this article with the hope and intention that other law school clinics will borrow from and improve on CMIC’s model.

February 5, 2021 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Wednesday, February 03, 2021

The Sentencing Project releases new report documenting "Racial Disparities in Youth Incarceration Persist"

Josh Rovner has authored this new report for The Sentencing Project titled " "Racial Disparities in Youth Incarceration Persist." Here is its executive summary:

In an era of declining youth incarceration, Black and American Indian youth are still overwhelmingly more likely to be held in custody than their white peers.

In ten years, the United States has cut youth incarceration in half. While the reduction is impressive, youth involvement in the juvenile justice system continues to impact youth of color disproportionately.

In every state, Black youth are more likely to be incarcerated than their white peers, about five times as likely nationwide. American Indian youth are three times as likely to be incarcerated as their white peers. For Latinx youth disparities are smaller but still prevalent; Latinx youth are 42 percent more likely than their white peers to be incarcerated.

Nationally, disparities are essentially unchanged from 10 years’ prior for Black and American Indian youth, but represent a 21 percent decrease in incarceration disparities for Latinx youth. In state rankings, New Jersey warrants special mention due to its number one and number three status for highest Black-white and Latinx-white disparities in youth incarceration, respectively.

These disparities are not only caused by differences in offending but also by harsher enforcement and punishment of youth of color.  White youth are less likely to be arrested than other teenagers, which is partly attributable to unequal policing and partly to differential involvement in crime.

After arrest, youth of color are more likely to be detained pre-adjudication and committed post adjudication.  They are also less likely to be diverted from the system.  These patterns hold across a range of offenses.

Advancement of racial justice priorities with youth decarceration efforts has proven elusive.  More steps must be taken to invest in youth and communities in order to prevent crime and to protect youth from overly punitive system responses to misbehavior.

Recommendations

1. Racial impact statements

States and localities should require the use of racial impact statements to educate policymakers about how changes in sentencing or law enforcement policies and practices might impact racial and ethnic disparities in the justice system.

2. Publish demographic data quarterly

States and counties should publish demographic data quarterly on the number of incarcerated or justice-system involved youth, including race and ethnicity. The federal government should disseminate this information nationwide.

3. Invest in communities

States and localities must invest in communities to strengthen public infrastructures, such as schools and medical and mental health services, with particular focus on accommodating the needs of children of color.

February 3, 2021 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1)

Saturday, January 30, 2021

"Assessing Graham v. Florida at the Ten-Year Mark: Progress and the Prospects for Ongoing Juvenile Sentencing Reform"

The title of this post is the title of this great looking upcoming symposium being conducted by the Catholic University Law Review this coming Friday, February 5, 2021 starting at 1pm EST. Here is how the event is described and the planned coverage (click through to see all the great speakers):

Three Supreme Court decisions in the last decade have dramatically reshaped the treatment of juveniles in our criminal justice system.  In Graham v. Florida (2010), the Court held that juveniles may not be sentenced to life without parole (LWOP) for non-homicide crimes.  Two years later, in Miller v. Alabama (2012), the Court held that even juveniles convicted of homicide may not be sentenced to mandatory LWOP.  Finally, in Montgomery v. Louisiana (2016), the Court held that Miller was retroactively applicable, thereby entitling several thousand individuals to a resentencing hearing at which their youth and all its mitigating attributes would be taken into account.  These cases not only significantly curbed the uniquely American practice of sentencing minors to LWOP, but also, together they stand for the proposition that children are different for purposes of sentencing.

Ten years after the landmark decision in Graham, this symposium will explore the impact that these cases have had on juvenile sentencing in the LWOP context and more broadly. The first of three panels will include practitioners who can provide a firsthand perspective on resentencing hearings and how they are playing out in courtrooms across the country.  The second panel will consider the legislative effects of Graham and will include policymakers working on the ground to pursue related juvenile sentencing reforms. Finally, the closing panel will afford attendees an opportunity to hear directly from individuals affected by Graham, that is, those who were sentenced to life imprisonment as juveniles and have now come home.

The Program

1:00 p.m.  Graham v. Florida at the Ten-Year Mark

1:30 p.m.  Resentencing Hearings Post-Graham

2:45 p.m.  Legislative Effects of Graham

4:00 p.m.  Life after Graham

January 30, 2021 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, January 15, 2021

Feds complete yet another late-night execution of convicted killer of seven from Virginia

As reported in this CNN piece, headlined "Federal government executes Corey Johnson following prolonged legal fight," the latest federal execution followed, yet again, what has become the standard litigation script with the Supreme Court ultimately rejecting all final arguments for a delay.  Here are some of the details: 

Corey Johnson was executed by lethal injection at the Federal Correctional Complex in Terre Haute, Indiana, and was pronounced dead at 11:34 p.m. ET on Thursday.

Johnson was sentenced to die after he was convicted of killing seven people in 1992 as a part of the drug trade in Virginia.  The weeks preceding his execution were defined by a tense legal battle after he contracted Covid-19 while on death row.

In his final statement, Johnson apologized for his crimes and told the families of the victims that he hoped they would find peace. He also thanked the staff at the prison, the prison's chaplain, his minister and his legal team....

The Supreme Court denied a last-ditch effort late Thursday by Johnson's legal team that leaned on claims of an intellectual disability and his Covid-19 diagnosis, arguing that his infection paired with a lethal injection would amount to a cruel and unusual punishment.  That appeal came after an appellate court on Wednesday tossed out a lower court's decision to stay the executions of Johnson and another death row inmate who contracted the virus, Dustin Higgs, whose execution is scheduled to take place Friday....

Johnson was found guilty of seven counts of capital murder in 1993, with the US District Court for the Eastern District of Virginia jury unanimously recommending seven death sentences.

Thursday's execution, six days before President-elect Joe Biden takes office, coincides with a new push from more than three dozen members of Congress for Biden's incoming administration to prioritize abolishing the death penalty in all jurisdictions.  While Biden has pledged to abolish the federal death penalty and to give incentives to states to stop seeking death sentences as a part of his criminal justice plan, 40 members of Congress want to make sure the practice ends on his first day in office.

January 15, 2021 in Death Penalty Reforms, Offender Characteristics, Offense Characteristics | Permalink | Comments (1)

Thursday, January 14, 2021

"Race and Ethnicity of Violent Crime Offenders and Arrestees, 2018"

The title of this post is the title of this notable new statistical brief from DOJ's Bureau of Justice Statistics.  Here are portions of the first few paragraphs of the document:

In 2018, based on data from the FBI’s Uniform Crime Reporting (UCR) Program, black people were overrepresented among persons arrested for nonfatal violent crimes (33%) and for serious nonfatal violent crimes (36%) relative to their representation in the U.S. population (13%).  White people were underrepresented.  White people accounted for 60% of U.S. residents but 46% of all persons arrested for rape, robbery, aggravated assault, and other assault, and 39% of all arrestees for nonfatal violent crimes excluding other assault.  Hispanics, regardless of their race, were overrepresented among arrestees for nonfatal violent crimes excluding other assault (21%) relative to their representation in the U.S. population (18%).

These UCR data on incidents of nonfatal violent crime can be compared to data from the National Crime Victimization Survey (NCVS) to determine how much offense and arrest diferences by race and ethnicity can be attributed to diferences in criminal involvement.  The NCVS collects information on victims’ perceptions of ofenders’ race, ethnicity, and other characteristics in incidents of violent crime.  This survey is administered to persons age 12 or older from a nationally representative sample of U.S. households. The 2018 NCVS data fle includes interviews from 151,055 households.

An examination of ofenders’ characteristics, as reported by victims in the NCVS, provides information on racial and ethnic disparities beyond an arrestee and population-based comparison.  Based on the 2018 NCVS and UCR, black people accounted for 29% of violent-crime offenders and 35% of violent-crime offenders in incidents reported to police, compared to 33% of all persons arrested for violent crimes.

At the same time, white offenders were underrepresented among persons arrested for nonfatal violent crimes (46%) relative to their representation among offenders identifed by victims in the NCVS (52%).  When limited to offenders in incidents reported to police, white people were found to be arrested proportionate to their criminal involvement (48%). Hispanic offenders were overrepresented among persons arrested for nonfatal violent crimes (18%) relative to their representation among violent offenders (14% of all violent offenders and 13% of violent offenders in incidents reported to police).  However, victims were unable to determine if the offender was Hispanic in 9% of single-offender incidents and 12% of multiple-offender incidents, which may have resulted in some underestimates of Hispanic offenders’ involvement in violent crime.

January 14, 2021 in National and State Crime Data, Offender Characteristics, Race, Class, and Gender | Permalink | Comments (0)

Wednesday, January 13, 2021

Details on Ohio's new ban of juve LWOP and the broader national landscape

JLWOP202101-1200x802As mentioned in this recent post, Ohio recently enacted a new law largely banning life without parole sentences for juveniles.  Daniel Nichanian has this new piece at The Appeal: Political Report about the law and the national develops in this space. I recommend the whole piece, and here are excerpts (with links and the graphic from the original):

Ohio is expanding access to parole hearings for people who have been incarcerated ever since they were children.  It will no longer sentence minors to life without the possibility of parole, and it will significantly curtail sentences that effectively amount to the same. 

Youth justice advocates are celebrating Senate Bill 256, which was signed into law by Governor Mike DeWine on Saturday, as their latest win in nationwide efforts to keep kids from spending their life in prison. The law is a “huge sea change” for the state, said Kevin Werner, policy director at the Ohio Justice & Policy Center, because “it recognizes that people change. … The heart of the bill is that Ohio values redemption over excessive punishment.”

SB 256, which is retroactive, only affects parole eligibility; it does not guarantee that people actually get released, even after spending decades in prison.  Under the new law, people who committed a crime as a minor will be eligible for parole after no more than 18 years of incarceration if the crime did not involve a homicide, or after no more than 25 to 30 years if it did.  That’s longer than in other states that have recently adopted similar laws....

Ohio is the 24th state, plus D.C., that will stop imposing sentences of juvenile life without parole.  A wave of states have adopted similar reforms since the Supreme Court ended mandatory life without parole sentences for minors in a series of early 2010s rulings.  Oregon, in 2019, and Virginia, in 2020, did this most recently. 

Brooke Burns, who heads the Ohio Public Defender’s Juvenile Department, stresses that SB 256 will also help the state confront significant racial inequalities in its prison population.  “When we think about lengthy sentences, it’s overwhelmingly kids of color who are impacted by that,” said Burns.

These inequalities stem from disparate sentencing, but also the rate at which children of color are transferred to adult court in the first place, especially in counties such as Cuyahoga (Cleveland) that do so very aggressively.

The Appeal reported in 2019 that the office of Prosecuting Attorney Michael O’Malley has been transferring minors to adult court far more than other Ohio jurisdictions.  Ninety-four percent of those who were transferred to adult court in 2018 were Black. 

Ohio’s Legislative Services Commission estimates that 50 to 60 people will immediately become eligible for parole when SB 256 becomes effective; this is approximately the number of people who have served at least 18 years, and in some cases much more, of the sentences they received when they were minors.  Many more will become newly eligible for parole in subsequent years.  The law will apply to most people who are serving outright sentences of life without parole, but also to people whose sentences are functionally equivalent since their parole eligibility was set so far in the future....

In Oregon and Virginia, the two states that most recently adopted laws to end juvenile life without parole, the state government is run by Democrats.  But SB 256 had to pass through Ohio’s GOP-run legislature — which it did with wide bipartisan majorities — and get support from the Republican governor.

January 13, 2021 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

After SCOTUS reverses stays by 6-3 votes, US complete early morning execution of only woman on federal death row

As reported here via SCOTUSblog, the "Supreme Court on Tuesday night cleared the way for the execution of Lisa Montgomery, the first woman to be executed by the federal government in 68 years.  Montgomery was convicted in 2008 of strangling Bobbie Jo Stinnett, a Missouri woman who was eight months pregnant, and extracting the premature baby to pass off as her own child." Here is more:

In a series of brief, unsigned orders, the Supreme Court reversed a pair of rulings from federal appeals courts that had put Montgomery’s execution on hold, and it denied two other last-minute requests in which Montgomery argued she was entitled to a postponement. In two of the orders, the court’s three liberal justices indicated that they dissented and would not have allowed the execution to proceed.

Soon after the court issued its final late-night order, Montgomery was put to death by lethal injection at the federal execution facility in Terre Haute, Indiana.  She was pronounced dead at 1:31 a.m.

Four separate cases relating to Montgomery’s execution reached the justices in emergency litigation over the past several days....

Montgomery was the first woman to be executed by the federal government since 1953.  No other women are currently on federal death row.  Montgomery also became the 11th person to be put to death by the federal government since last July, when the Trump administration ended a 17-year moratorium on federal executions.

The Justice Department has scheduled two more executions in the waning days of the Trump administration.  It wants to execute Corey Johnson on Thursday and Dustin Higgs on Friday, but both men recently tested positive for COVID-19, and a federal judge on Tuesday halted their executions based on a risk that lung damage associated with the virus could cause them to suffer severe pain during a lethal injection. 

I had been following all the litigation in the run up to the scheduled execution, but I did not blog about any of the stays because it seemed to me quite likely that the Supreme Court would ultimately clear the path for the feds to move forward.  In most of the previous 10 federal executions over the last six months, the condemned defendant secured or argued forcefully for a stay; in every single case, SCOTUS has allowed the execution to go forward.  I will be surprised if this pattern does not repeat itself again twice more this week with the scheduled executions of Corey Johnson and Dustin Higgs.

As the SCOTUSblog post notes, Montgomery was the first woman executed by the federal government in the modern death penalty era.  She is also the first woman executed anywhere in the US in more than five years; Georgia executed Kelly Gissendaner for orchestrating the murder of her husband back in September 2015.  Montgomery is also the first person executed in 2021.  This DPIC page details that she is the 17th woman executed in the modern death penalty era (out of a total of 1530 total executions).

January 13, 2021 in Death Penalty Reforms, Offender Characteristics | Permalink | Comments (0)

Monday, January 11, 2021

Ohio enacts new laws precluding death penalty for those with "serious mentally illness" and largely eliminating LWOP for juvenile offenders

As detailed in this official notice, Ohio Governor Mike DeWine over the weekend signed a bunch of new bills into law, and two are sure to be of interest to sentencing fans:

House Bill 136, sponsored by Representative Brett Hudson Hillyer, prohibits the death penalty if offender was mentally ill at time of offense. 

Senate Bill 256, sponsored by Senator Nathan Manning and former Senator Peggy Lehner, regards sentencing offenders under the age of 18. 

This local press piece provides a bit of background on these new Ohio laws:

Gov. Mike DeWine has also signed bills taking the death penalty off the table for murders committed by the severely mentally ill... House Bill 136, sponsored by Rep. Brett Hillyer (R., Uhrichsville), prohibits the death penalty for murderers who demonstrate they suffered from a “serious mental illness” at the time of the crime. The most severe punishment would be life without the possibility of parole.

In addition to future cases, the law would open a one-year window for some people currently on death row to ask judges to commute their death sentences. While execution is not an option now for juveniles and the mentally disabled, Ohio law still allows for capital punishment in cases involving mental illness claims that fall short of the threshold for a verdict of not guilty by reason of insanity.

“Serious mental illness” is defined as schizophrenia, schizoaffective disorder, bipolar disorder, or any delusional disorder significantly impairing the accused's ability to exercise rational judgment in complying with the law and fully appreciating the consequences of conduct....

Senate Bill 256, sponsored by Sens. Nathan Manning (R., North Ridgeville) and Peggy Lehner (R., Kettering), to remove life without parole as a sentencing option for juveniles and to allow for parole hearings for juveniles after certain periods of time in prison.

It will be fascinating to see how these new laws get implemented.  This other local piece, headlined "Mother of murder victim advocated for new parole changes," partially speaks to the application of the juve LWOP law while also highlighting the powerful role that crime victims can play in advancing criminal justice reform:

A bill that will change Ohio's parole options, signed by Governor Mike DeWine on Saturday, was advocated for by a local mother whose son was murdered in South Cumminsville in 2015.

Suliman Abdul-Mutakallim was walking home with food for his family in June, 2015, when he was shot dead and robbed. "When three assailants walked up behind him and shot him in the back of the head, they didn't even say 'stick 'em up.' They just shot him," said Rukiye Abdul-Mutakallim, Suliman's mother.

The three then took $40 from Suliman, stole his phone and the food he was bringing home. For Rukiye, it was difficult to ignore that two of the three responsible for her son's death were children: The youngest was just 14 years old. "I found it unfathomable. These are human beings, aren't they?" said Rukiye. "And then when I saw them in court and they were children? Ahh."...

"For her to recognize that they were children who made terrible, terrible mistakes and has the grace to understand and hold that out to say, 'This is not what I would want for them,' is really remarkable," said Kevin Werner, with the Ohio Justice and Policy Center. 

Werner said there are currently 11 prisoners in Ohio affected directly by SB 256, which will retroactively apply to juveniles already convicted and sentenced.  The bill instead adds parole possibilities at 18 years, 25 years and 30 years, depending on the severity of the crime.

"It doesn't go far enough and we know that, but it is the beginning," said Rukiye.... "If we are throwing our babies away, we have no future," said Rukiye.

January 11, 2021 in Assessing Miller and its aftermath, Offender Characteristics, Who Sentences | Permalink | Comments (1)

Sunday, January 10, 2021

Montana Supreme Court talks through juve LWOP resentencing after Miller

This past Friday, the Montana Supreme Court handed down a notable ruling (with lots of opinions) on the application of the US Supreme Court's juvenile LWOP sentencing jurisprudence and related issues.  The main opinion and various concurring and dissenting opinions in Montana v. Keefe, No. 2021 MT 8 (Mont. Jan. 8, 2021) (available here), all make for interesting reads.  Here are some of the essentials from the majority opinion: 

We agree with the Briones court that post-offense evidence of rehabilitation is clearly required to be considered by a court resentencing a juvenile who is serving a sentence of life without parole.  Because Miller commands a resentencing court to consider “the possibility of rehabilitation” before a juvenile can lawfully be sentenced to life without parole, evidence of rehabilitation in the years since the original crime must be considered by the resentencing court.  This is consistent with the sentencing policy of Montana which does not merely provide for punishment, protection of the public, and restitution, but also for rehabilitation and reintegration of offenders back into the community....

Although we have determined the District Court erred in determining Keefe was “irreparably corrupt” and “permanently incorrigible” and are reversing his sentence on that basis, we must address whether the issue of the irreparable corruption of a minor is a fact which must be found by a jury.  Keefe has argued, pursuant to Apprendi, that he is constitutionally entitled to have a jury determine whether he is, in fact, “irreparably corrupt” before a possible life without parole sentence.  We disagree....

Here, neither “irreparable corruption” nor “permanent incorrigibility” are facts which could increase a possible sentence.  Rather, youth is a mitigating factor which can reduce the possible sentence for deliberate homicide in Montana.  In accordance with Miller and Steilman, a jury is not required to determine irreparable corruption and permanent incorrigibility — that determination is properly left to the resentencing judge.

January 10, 2021 in Assessing Miller and its aftermath, Blakely in the Supreme Court, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Monday, January 04, 2021

"Expunging Juvenile Records: Misconceptions, Collateral Consequences, and Emerging Practices"

The title of this post is the title of this notable new document authored by Andrea Coleman and recently released by Department of Justice's Office of Juvenile Justice and Delinquency Prevention. Here are the "Highlights" set forth in the first page of the document:

This bulletin discusses common misconceptions surrounding expungement.  It also provides information about the collateral consequences of juvenile records as well as federal, state, and local emerging practices. 

The key information and findings include the following:

  • Expungement, sealing, and confidentiality are three legally distinct methods for destroying or limiting access to juvenile records.  However, these methods may permit police, courts, or the public access to juvenile records, depending on state laws.

  • The public and impacted youth often erroneously believe that once police and courts expunge juvenile records they no longer exist. The handling of expunged juvenile records varies widely from state to state.

  • Youth with juvenile records frequently experience collateral consequences of their arrest or adjudication, which may include difficulty accessing educational services, obtaining employment, serving in the military, and finding and maintaining housing.

  • States, localities, and the federal government have implemented promising practices to decrease collateral consequences, including “ban the box” legislation and expungement clinics (Avery and Hernandez, 2018; Radice, 2017; Shah, Fine, and Gullen, 2014; Shah and Strout, 2016).

January 4, 2021 in Collateral consequences, Offender Characteristics, Reentry and community supervision | Permalink | Comments (0)

Thursday, December 24, 2020

"'I See What Is Right and Approve, But I Do What Is Wrong': Psychopathy and Punishment in the Context of Racial Bias in the Age of Neuroimaging"

The title of this post is the title of this new paper now available via SSRN authored by Alison Lynch and Michael L. Perlin.  Here is its abstract:

Criminology research has devoted significant attention to individuals diagnosed either with antisocial personality disorder (ASPD) or psychopathy.  While in the past, the two terms were used somewhat interchangeably, researchers today are starting to see that the two terms in fact represent two very different personality types and offending patterns.  In this article, we examine this development from a legal perspective, considering what this might mean in terms of punishment for these two personality types based on the different characteristics they display in their actual offenses and their responses to punishment and rehabilitation.  Specifically, we will focus on how the use of these terms has a disproportionate negative impact on persons of color.

Current research estimates that one in five violent offenders can be classified as a psychopath, a term fraught with controversy and excluded from the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM V).  However, this category of offenders presents dramatically different characteristics than individuals with antisocial personality disorder, which is often incorrectly conflated with psychopathy.  Emerging research using neuroimaging is demonstrating that the brain of a psychopath responds differently to punishment than the brains of other non-psychopathic criminal offenders.  As research continues, it is critical for criminologists, attorneys and judges to begin thinking about whether brain science should affect our modern views of punishment, and whether individuals should be punished differently based on their diagnosis or neurophysiology.  This is not a topic that has been the subject of substantial contemporaneous legal analysis, and we hope that this article invigorates the conversation.

In this article, we first present some background on the controversy of "psychopathy" diagnosis, sharing in this context what we call the “inside baseball” about the debate — on the differences between psychopathy and ASPD — that has rocked the psychology academy.  We focus next on how the instruments that are used to assess these conditions are subject to significant racial bias.  We then unpack these issues through a lens of therapeutic jurisprudence, a school of thought that considers the extent to which the legal system can be a therapeutic agent.  We will also analyze how our current ideas about punishment and recidivism could change, using psychopathy research as a case study. Finally, we will consider how this new research creates extra responsibilities for both lawyers and expert witnesses in their representation of criminal defendants in such cases.

December 24, 2020 in Offender Characteristics, Race, Class, and Gender, Who Sentences | Permalink | Comments (2)

Saturday, December 19, 2020

Ohio Supreme Court strikes down "anti-procreation community-control condition" for man convicted for failing to pay child support to mothers of his 11 children

The Ohio Supreme Court yesterday rendered an interesting decision, by a 6-1 vote, striking down an interesting community control condition in Ohio v. Chapman, No. 2020-Ohio-6730 (Ohio Dec. 18, 2020) (available here). Here is the start and key concluding paragraphs from the majority opinion:

A man was convicted for failing to pay child support to the mothers of his 11 children and sentenced to community control.  One of the conditions of community control imposed by the court was that the man “make all reasonable efforts to avoid impregnating a woman” during his sentence.  The question before us is whether that condition was appropriate.  We conclude that it was not....

Chapman’s failure to properly prioritize his obligations toward his children and pay support as he is able could prompt several conditions of community-control sanctions that would reasonably relate to his offense.  The trial court properly ordered Chapman to obtain and maintain full-time employment.  It could have gone further in this direction: it might have ordered him to participate in job training, placed him in a program that would ensure that he was working and that child support was being deducted from his paycheck, required that he undergo education in financial planning and management, or placed restrictions on his spending.  All of these would be reasonably related to Chapman’s crime of nonpayment of child support.  But as long as the crime of nonsupport depends on an offender’s ability to pay, a prohibition requiring Chapman to “make reasonable measures” to avoid fathering another child during his term of community control is not.

The lack of a fit between the offense of which Chapman was convicted and the availability of other more effective conditions leads to the conclusion that the condition “unnecessarily impinge[d] upon the probationer’s liberty.”  Jones at 52.  On remand, the trial court must remove the anti-procreation condition, but may impose other conditions that are appropriately tailored to the goals of community control.

Justice French was the lone dissenter, and her opinion concluded with these points:

In Talty, 103 Ohio St.3d 177, 2004-Ohio-4888, 814 N.E.2d 1201, at ¶ 20-21, this court concluded that an anti-procreation community-control condition was overly broad because it did not contain a mechanism for lifting the condition.  But here, the trial court required only that Chapman make reasonable efforts to avoid impregnating another woman during his five-year community-control period.  The trial court then outlined a minimum of 12 ways by which Chapman could have the condition lifted.  This is not a case in which the trial court decided to impose an anti-procreation community-control condition for minor instances of failure to pay child support.  Chapman currently has at least 11 children that he is not supporting, and his child-support arrearage at the time of his 2018 resentencing was already over $200,000.  The trial court found that Chapman’s violations of his prior child-support obligations were “egregious and systemic.”  Under these facts, its anti-procreation condition is not overly broad.

December 19, 2020 in Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (2)

Saturday, December 12, 2020

"Institutionalizing inequality in the courts: Decomposing racial and ethnic disparities in detention, conviction, and sentencing"

The title of this post is the title of this recent article published in the latest issue of Criminology authored by Marisa Omori and Nick Petersen.  Here is its abstract:

A significant body of literature has examined racial and ethnic inequalities in sentencing, focusing on how individual court actors make decisions, but fewer scholars have examined whether disparities are institutionalized through legal case factors.  After finding racial and ethnic inequalities in pretrial detention, conviction, and incarceration based on 4 years of felony court data (N = 83,924) from Miami‐Dade County, we estimate nonlinear decomposition models to examine how much of the inequalities are explained by differences in criminal history, charging, and for conviction and incarceration, pretrial detention.

Results suggest that inequality is greatest between White non‐Latinos and Black Latinos, followed by White non‐Latinos and Black non‐Latinos, ranging from 4 to more than 8 percentage points difference in the probability of pretrial detention, 7–13 points difference in conviction, 5–6 points in prison, and 4–10 points difference in jail.  We find few differences between White non‐Latinos and White Latinos.  Between half and three‐quarters of the inequality in pretrial detention, conviction, and prison sentences between White non‐Latino and Black people is explained through legal case factors.  Our findings indicate that inequality is, in part, institutionalized through legal case factors, suggesting these factors are not “race neutral” but instead racialized and contribute to inequalities in court outcomes.

December 12, 2020 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender | Permalink | Comments (0)

Thursday, December 10, 2020

US completes execution of Brendan Bernard despite high-profile appeals for relief

As reported in this AP piece, the "Trump administration on Thursday carried out its ninth federal execution of the year and the first during a presidential lame-duck period in 130 years, putting to death a Texas street-gang member for his role in the slayings of a religious couple from Iowa more than two decades ago."  Here is more:

Four more federal executions, including one Friday, are planned in the weeks before President-elect Joe Biden’s inauguration.

The case of Brendan Bernard, who received a lethal injection of phenobarbital inside a death chamber at a U.S. prison in Terre Haute, Indiana, was a rare execution of a person who was in his teens when his crime was committed.

Several high-profile figures, including reality TV star Kim Kardashian West, had appealed to President Donald Trump to commute Bernard’s sentence to life in prison.

With witnesses looking on from behind a glass barrier, the 40-year-old Bernard was pronounced dead at 9:27 p.m. Eastern time.

Bernard was 18 when he and four other teenagers abducted and robbed Todd and Stacie Bagley on their way from a Sunday service in Killeen, Texas. Federal executions were resumed by Trump in July after a 17-year hiatus despite coronavirus outbreak in U.S. prisons....

[J]ust before the execution was scheduled, Bernard’s lawyers filed papers with the Supreme Court seeking to halt the execution. The legal team expanded to include two very high-profile attorneys: Alan Dershowitz, the retired Harvard law professor who was part of Donald Trump’s impeachment defense team and whose clients have included O.J. Simpson, Claus von Bulow and Mike Tyson; and Ken Starr, who also defended Trump during the impeachment and is most famous as an independent counsel who led the investigation into Bill Clinton.

But about two and a half hours after the execution was scheduled, the Supreme Court denied the request, clearing the way for the execution to proceed.

The Supreme Court's denial of Benard's application for a stay of execution and cert petition is available at this link. The vote was 6-3, with Justice Sotomayor writing the only full dissent. That dissent starts this way:

Today, the Court allows the Federal Government to execute Brandon Bernard, despite Bernard’s troubling allegations that the Government secured his death sentence by withholding exculpatory evidence and knowingly eliciting false testimony against him.  Bernard has never had the opportunity to test the merits of those claims in court.  Now he never will. I would grant Bernard’s petition for a writ of certiorari and application for a stay to ensure his claims are given proper consideration before he is put to death.

December 10, 2020 in Death Penalty Reforms, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Monday, December 07, 2020

"Police Prosecutions and Punitive Instincts"

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

This Article makes two contributions to the fields of policing and criminal legal scholarship.  First, it sounds a cautionary note about the use of individual prosecutions to remedy police brutality.  It argues that the calls for ways to ease the path to more police prosecutions from legal scholars, reformers, and advocates who, at the same time, advocate for a dramatic reduction of the criminal legal system’s footprint, are deeply problematic.  It shows that police prosecutions legitimate the criminal legal system while at the same time replaying the racism and ineffectiveness that have been shown to pervade our prison-backed criminal machinery.

The Article looks at three recent trials and convictions of police officers of color, Peter Liang, Mohammed Noor, and Nouman Raja, in order to underscore the argument that the criminal legal system’s race problems are playing themselves out predictably against police officers.  The Article argues that we should take the recent swell of prison abolitionist scholarship to heart when we look at police prosecutions and adds to that literature by exploring this controversial set of defendants that are considered a third rail, even among most abolitionists.

Second, the Article argues that police prosecutions hamper large-scale changes to policing.  By allowing law enforcement to claim that brutality is an aberration, solvable through use of the very system that encourages brutality in the first place, we re-inscribe the failures of policing and ignore the everyday systemic and destructive violence perpetrated by police on communities of color.  In order to achieve racial justice and real police reform, we must reduce our reliance on the police, rather than looking to the criminal legal system to solve this crisis.

December 7, 2020 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (0)

Friday, December 04, 2020

"Unpunishable Criminals"

The title of this post is the title of this notable new article by Mihailis Diamantis now available via SSRN.  Here is its abstract:

Criminal law strives to do justice. It aims to give wrongdoers the punishment they deserve and the punishment that will. But sometimes justice is out of reach.  Many criminals will never face punishment because circumstance or the law itself immunizes them from sanction.

This Article is the first to conceptualize the large and varied set of what it calls “unpunishable criminals.”  They include recipients of presidential pardons, deceased criminals, diplomats, fugitives, and those whose crimes occurred long ago, among several others.  Does criminal law’s inability to punish these criminals mean that it must wash its hands of them and their victims entirely?

Presently, the answer seems to be “yes.”  But this Article argues that criminal law can do better—it should permit the prosecution of unpunishable criminals.  Trial is an independent source of value. It uncovers truth, allows victims to tell their own stories, and condemns wrongdoing.  With appropriate procedural safeguards, prosecution can advance these values even when punishment cannot follow.

December 4, 2020 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Thursday, November 19, 2020

"'Some Mother's Child Has Gone Astray': Neuroscientific Approaches to a Therapeutic Jurisprudence Model of Juvenile Sentencing"

the title of this post is the title of this new paper authored by Michael Perlin and Alison Lynch now available via SSRN. Here is its abstract:

There is a robust body of evidence that tells us that the juvenile brain is not fully developed by age 18, and this evidence should and does raise important questions about the sentencing of juveniles in criminal cases.  This evidence, though, must be considered in the context of public opinion (about certain juvenile crimes that have been subject to saturation publicity) in the context of judges’ decisionmaking (where such judges do not want to be perceived as “soft on crime”).  The conflict between what we now know and what (false) “ordinary common sense” demands (in the way of enhanced punishments) flies squarely in the face of therapeutic jurisprudence precepts.  If the legal process is to seek to maximize psychological well-being and if it is to coincide with an “ethic of care,” then, it is necessary for those involved in the criminal justice system to speak publicly about this topic, and to “call out” those — be they elected politicians, editorial writers and commentators in the conservative media, or judges — who urge retributive and punitive sentences for adolescents and children.

In this paper, we will first give a brief overview about the current neuroscientific findings about juvenile brain development in the context of criminal behavior, and then discuss the current sentencing standards and regulations that are in place.  Then, we will discuss the impact of therapeutic jurisprudence as a framework for advocating for juvenile clients, in order to maximize and preserve their psychological well-being and to mitigate trauma.  Finally, we will offer recommendations for how experts can work with attorneys who are presenting sentencing arguments, in order to make the most comprehensive, scientifically persuasive case for leniency in juvenile sentencing.

November 19, 2020 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Wednesday, November 18, 2020

Seventh Circuit panel reverses below-guideline 16-year prison sentence as substantively unreasonable in terrorism case

Regular readers know I do not blog much about federal sentence reasonableness review these days because there is usually not that much worth blogging about.  Out of many thousands of appeals brought by federal defendants each year, typically only a few hundred are successful, and these are usually involve miscalculation of the guideline range.  The government rarely appeals, though it does often have a better success rate in the few dozen appeals it brings each year. 

In one particular (and rare) categories of cases, namely terrorism cases, the government has a particularly notable history of appellate success when arguing a sentence in unreasonably lenient (see posts linked below for some historical examples).  A helpful reader made sure I did not miss a new Seventh Circuit panel ruling handed down yesterday in this category: US v. Daoud, No. 19-2174 (7th Cir. Nov. 17, 2020) (available here).  Federal sentencing fans will want to review this 26-page opinion in detail, but the start and few passages from the body of the opinion provides the basics:

Adel Daoud pressed the button to detonate a bomb that would have killed hundreds of innocent people in the name of Islam.  Fortunately, the bomb was fake, and the FBI arrested him on the spot.  Two months later, while in pretrial custody, Daoud solicited the murder of the FBI agent who supplied the fake bomb.  Two and a half years later, while awaiting trial on the first two charges, Daoud tried to stab another inmate to death using makeshift weapons after the inmate drew a picture of the Prophet Muhammad.  Daoud eventually entered an Alford plea, and the cases were consolidated for sentencing.  The district court sentenced Daoud to a combined total of 16 years’ imprisonment for the crimes.  The government appeals that sentence on the ground that it was substantively unreasonable.  We agree.  We vacate the sentence and remand for resentencing....

[W]hile the district court paid lip service to the seriousness of the offenses, it undercut its own statements by unreasonably downplaying Daoud’s role in each offense.  District courts have broad discretion as to how to weigh the § 3553(a) factors, but a district court’s sentence must reflect a reasonable view of the facts and a reasonable weighing of the § 3553(a) factors....  Here, the district court sterilized Daoud’s offense conduct in ways that cannot be reconciled with the objective facts of these violent offenses.  That unreasonable view of the facts prevented the district court from properly weighing the seriousness of the offenses when selecting its sentence....

In the district court’s telling, Daoud’s age, mental health, and general awkwardness and impressionability converged to render him uniquely susceptible to criminal influence. A sentencing court is well within its rights to consider a defendant’s mental limitations in mitigation.... But that factor only goes so far in this case.  Daoud committed the attempted bombing around his 19th birthday.  He was 19 when he solicited the FBI agent’s murder and 21 when he tried to stab a fellow inmate to death.  In other words, he was college aged at all relevant times.  He may have been immature, but, as the court recognized, he was old enough to know what he was doing.

Prior posts on similar reasonableness ruling:

November 18, 2020 in Booker in the Circuits, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Friday, November 13, 2020

"Redeeming Justice"

The title of this post is the title of this new paper now available via SSRN authored by Rachel Lopez, Terrell Carter and Kempis Songster.  Here is its abstract:

Approximately three decades ago, two co-authors of this Article were sentenced to die in prison.  According to the United States Supreme Court, this sentence represented a determination that they were irredeemable.  This article will interrogate the legal determination that there are some human beings who are incapable of redemption.  In doing so, the article grapples with a basic, yet weighty question.  Specifically, it examines whether, as a matter of law, the capacity for change is so core to the human condition that all people have an inalienable right to pursue personal redemption. It also documents the dehumanizing effect of codified condemnation and the struggle for humanity in the face of a legal system that has said: you are not worthy.

Drawing from human rights law and the lived experience of the co-authors, this Article argues that the capacity for redemption is an innate human characteristic, fundamentally intertwined with the legal concept of human dignity.  Taking a pragmatic approach to human rights jurisprudence, it will contend that all humans have a right to redemption and that this right is embedded in the Eighth Amendment through the latent concept of human dignity.

Such a reading of the Eighth Amendment would require a dramatic re-imagination of our criminal legal system.  One that elevates humanity, not deprives it.  One that creates opportunities for healing and human development, not denies it.  As a starting point, it will require that the law never make impermeable decisions about the human capacity for redemption.  Rather, the law should restore hope that change is always possible.

November 13, 2020 in Offender Characteristics, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Wednesday, November 11, 2020

Eager to honor our veterans caught up in our nation's massive criminal justice systems

5fa97d96f3264.imageEvery year when Veterans Day rolls around, I find myself giving a lot more thought to all the veterans who get caught up in our criminal justice systems.  I often see exhortations to honor "all who served" on this important day, and that necessarily means we need to be sure to honor the disconcerting large number of veterans who spend this day behind bars, or under active criminal justice supervision, or struggling with the enduring burdens of a criminal record.

According to these latest (but dated) BJS statistics, "in 2011–12, an estimated 181,500 veterans (8% of all inmates in state and federal prison and local jail excluding military-operated facilities) were serving time in correctional facilities."  Even if the present-day percentage had shrunk considerably, we can still state without any question that there are tens of thousands of veterans spending Veterans Day behind bars today.

And though I cannot find any detailed data on veteran status and probation/parole rate, even if veterans were only 5% of all persons on probation/parole in the US, that would still means that there are hundreds of thousands of veterans currently spending Veteran's Day subject to active community supervision today.

And though I cannot find any detailed data on veteran status and criminal convictions, even if veterans were only 5% of all persons with a criminal record in the US, that would still means that there are millions of veterans currently burdened with a criminal record on Veterans Day 202.

As highlighted in some posts below, I have often used this day to urge the President of the United States to use his clemency pen to honor this day with some grants to veterans.  But, of course, the vast majority of veterans involved in our nation's criminal justice systems are caught up in a state system.  So, those of us eager to really honor all who served ought to be advocating that all chief executives play their part in doing something meaningful for a population that has done something meaningful for all of us.

Some older (some very older) prior related posts: 

November 11, 2020 in Data on sentencing, Offender Characteristics, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0)

DPIC conducting webinar series on veterans and the death penalty

As detailed here via the Death Penalty Information Center's website, the "Death Penalty Information Center is partnering with the Veteran Advocacy Project to present a six-part webinar series on Veterans and the Death Penalty." Here is more information and links on the topic:

The Death Penalty Information Center is partnering with the Veteran Advocacy Project to present a six-part webinar series on Veterans and the Death Penalty.  The webinars, which are co-sponsored by Advancing Real Change, Inc. and Witness to Innocence, will address a broad range of serious issues that have made veterans disproportionately vulnerable to capital prosecution. The series opens Monday, November 9, the week the nation commemorates Veterans Day 2020, with a session on Veterans on Death Row....

The series opens November 9 with an overview of the issues by Veteran Advocacy Project Criminal Programs Director, Art Cody, DPIC Executive Director Robert Dunham, and former DPIC Executive Director and Battle Scars author Richard Dieter. This is followed by panels on Special Issues in Investigating and Presenting Veterans’ Mitigation (Nov. 12); Capital Punishment Under the Uniform Code of Military Justice (Nov. 13); Mental Health Issues in Veterans’ Capital Cases (Nov. 17), and Veterans, Race, and the Death Penalty (Nov. 18). It concludes on November 19, with a session on Wrongful Capital Convictions of Military Veterans, in which veterans Kirk Bloodsworth, Ray Krone, and Ron Wright tell the stories of their cases and how they were wrongfully sent to death row in the country that they had served.

November 11, 2020 in Death Penalty Reforms, Offender Characteristics | Permalink | Comments (0)

Tuesday, November 03, 2020

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

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

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

Prior related posts:

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

Listening to today's SCOTUS oral argument in two big sentencing cases

The year 2020 has been remarkable for so many reasons, and this morning it means for me a focus on the Supreme Court rather than on voting on this historic 2020 Election Day.  This is because I already voted early (about two weeks ago, in fact), and COVID realities mean that oral arguments are now available in real time.  And because SCOTUS this morning just happens to be hearing its two biggest sentencing cases on the docket, I plan to listen in live.  Here are the basics thanks to SCOTUSblog with links to where all can listen:

Jones v. Mississippi, 18-1259 

Issue: Whether the Eighth Amendment requires the sentencing authority to make a finding that a juvenile is permanently incorrigible before imposing a sentence of life without parole.

 LISTEN to Jones HERE

 

Borden v. United States, 19-5410

Issue: Whether the “use of force” clause in the Armed Career Criminal Act encompasses crimes with a mens rea of mere recklessness.

LISTEN to Borden HERE

November 3, 2020 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Monday, November 02, 2020

Background reading before argument in Jones v. Mississippi, the latest SCOTUS foray into Eighth Amendment limits on juve sentencing

Remarkably, it has been more than a decade since the US Supreme Court kicked off its interesting (and uncertain) new line of Eighth Amendment jurisprudence with its ruling in Graham v. Florida, 560 U.S. 48 (2010)Graham declared sentencing juveniles to life without parole (LWOP) for non-homicide offenses to be unconstitutional, and was quickly followed by Miller v. Alabama, 567 U.S. 460 (2012), which held that mandatory LWOP sentences were unconstitutional for juveniles convicted of homicide. Four years later, Montgomery v. Louisiana, 136 S. Ct. 718 (2016), declared that Miller was to be applied retroactively, and now Jones v. Mississippi will explore exactly what Miller and these other cases actually mean for discretionary sentencing of juvenile homicide offenders.

A whole lot of amicus briefs have been filed in Jones on both sides, and the US Solicitor General has also weighed in and been granted leave to participate in tomorrow's scheduled oral argument.  Amy Howe at SCOTUSblog has this preview, which sets up the case this way:

After Miller and Montgomery, state courts can sentence individual juveniles to life without the possibility of parole as long as the sentence is not a mandatory penalty under state law.  On Tuesday, the justices will hear oral argument in a case that asks them to decide what their rulings in Miller and Montgomery require states to do before imposing that sentence.  A Mississippi man contends that the sentencer must find that the juvenile is incapable of rehabilitation, while the state counters that it is enough that the sentencer considered the juvenile’s youth.

For those looking for other background reading beyond the briefs, there have been a number of good commentaries about the issues in this line of rulings published recently:

-- by Brandon Garrett in The Atlantic, "Life Without Parole for Kids Is Cruelty With No Benefit: The United States is the only country that allows this practice, and soon the Supreme Court could get rid of it."

-- by Katie Rose Quandt in In These Times, "The Supreme Court Said Their Sentencing Was Unconstitutional. But They’re Still Behind Bars. Despite SCOTUS rulings against life without parole sentences for juveniles, most who received that sentence remain incarcerated." 

-- by Marc Levin in the Texas Lawyer, "On Election Day, Remember All Youths Are Candidates for Change"

I am looking forward to the Court's consideration of Jones in part because the case presents the three newest Justices with their first big opportunity to weigh in on the Eighth Amendment in a noncapital case.  Based on Justice Gorsuch's work in capital Eighth Amendment cases, I am not expecting him to be a vote for an expansive interpretation of Miller.  But, especially because Justice Kavanaugh and Justice Barrett both are parents to teenage kids, I am wondering if they might be a bit more open to a more expansive view of the Eighth Amendment in this context.

November 2, 2020 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Friday, October 30, 2020

Will problematic definition of "violence" convictions impact Oklahoma sentencing reform initiative SQ 805?

I have highlighted in a few prior posts SQ 805, a fascinating Oklahoma ballot initiative seeking to block non-violent prior convictions from enhancing statutory punishment ranges.  This new Mother Jones story provide useful context concerning Oklahoma reforms while also noting a potential problem with how SQ 805 is drafted.  The full headline of the piece serves to summarize its coverage: "How a Domestic Violence Loophole Could Doom a Campaign to Cut Oklahoma’s Harsh Prison Sentences: A wrinkle threatens public support for the state’s progress against mass incarceration."  I recommend the piece in full, and here are excerpts:

For the last four years, the fight against mass incarceration in Oklahoma has been a story of unlikely success.  In 2016, after decades of creeping prison populations, the state’s incarceration rate reached levels so astronomical that the Prison Policy Initiative would dub it the “world’s prison capital“: More than 1 in 100 Oklahomans was locked up in a prison, jail, juvenile hall, or immigration detention facility.  But that year, the same electorate that voted to send Donald Trump to the White House by a 36-point margin also approved a ballot measure softening their state’s notoriously hardline criminal code.

That measure, State Question 780, was a turning point.  It downgraded drug possession and a slate of minor property crimes from felonies to misdemeanors, while a second measure ensured the money saved by downsizing prisons would go to rehabilitative programs.  In 2017, 14,000 fewer felony charges were filed by Oklahoma prosecutors; not long after, the state’s prison population began to fall. Meanwhile, politicians took note of the message the voters had sent.  In 2018, the state legislature, where Republicans hold a supermajority, passed more reforms, including streamlining the parole process.  Republican businessman Kevin Stitt made reducing the prison population part of his pitch for the governor’s seat, and won.

This year, Oklahoma voters could send another jolt to the system by voting for State Question 805 — another adjustment to the state’s harsh sentencing practices.  If it passes, SQ 805 could reduce the prison population by 8.5 percent over the next 10 years, according to a projection by the Oklahoma Council of Public Affairs, a conservative think tank that supports the initiative.

SQ 805 would add a provision to the state constitution prohibiting prosecutors and courts from jacking up the sentences of people convicted of nonviolent felonies if they have an earlier nonviolent felony on their record....

But there’s a significant wrinkle threatening public support for SQ 805, and in turn, Oklahoma’s slow but steady progress against mass incarceration: The measure distinguishes violent from nonviolent felonies using an outdated list from Oklahoma’s legal code.  As of January, that list of “violent” crimes did not include certain domestic violence charges, such as domestic abuse by strangulation, or domestic assault with a dangerous or deadly weapon. If SQ 805 passes, it would continue to allow courts to impose enhanced sentences for any crimes on that list as of January 1, 2020 — including assault and battery, murder, rape, child abuse, and so on — but not those domestic violence charges.  (Oklahoma lawmakers added some domestic violence charges to the violent felonies list in May, too late for SQ 805’s cutoff date.)

Prior related posts:

October 30, 2020 in Offender Characteristics, Offense Characteristics, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Saturday, October 24, 2020

"What If Nothing Works? On Crime Licenses, Recidivism, and Quality of Life"

The title of this post is the title of this interesting new piece authored by Josh Bowers available via SSRN.  Here is its abstract:

We accept uncritically the “recidivist premium,” which is the notion that habitual offenders are particularly blameworthy and should be punished harshly.  In this article, I question that assumption and propose a radical alternative.  Consider the individual punished repeatedly for hopping subway turnstiles.  As convictions accumulate, sentences rise — to weeks and ultimately months in jail.  At some point, criminality comes to signal something other than the need for punishment.  It signals the presence of need.  Perhaps, the recidivist was compelled by economic or social circumstances.  Perhaps, he was internally compulsive or cognitively impaired. The precise problem matters less than the fact that there was one.  No rational actor of freewill would continue to recidivate in the face of such substantial and increasing sentences.  My claim is that, in these circumstances, it would be better to just stop punishing.

To that end, I offer a counterintuitive proposal, which is to provide “crime licenses” to recidivists.  But I limit this prescription model to only a collection of quality-of-life offenses, like drug possession, vagrancy, and prostitution.  My goals are at once narrow and broad.  I present the crime license as a modest opportunity to test bolder concepts like legalization, prison abolition, and defunding police.  I situate the provocative proposal within a school of social action called “radical pragmatism,” which teaches that radical structural change is achievable, incrementally.  I draw upon successful prescription-based, radical-pragmatic reforms, like international addiction-maintenance clinics, where habitual drug users receive free heroin in safe settings.  I endorse “harm reduction,” the governance philosophy that grounds those reforms.  And I imagine our system reoriented around harm reduction, with crime licenses as one pragmatic, experimental step in that direction.

October 24, 2020 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (2)

Tuesday, October 13, 2020

"COVID-19 in Juvenile Facilities"

The title of this post is the title of this short new report written by Josh Rovner at The Sentencing Project. Here is the start of its coverage:

COVID-19 has infected hundreds of youth housed in and staff working in juvenile facilities.  Given the close proximity that defines life in congregate care settings, such as detention centers and residential treatment centers, such spread was inevitable without significant reductions in population in these facilities.  Since March, The Sentencing Project has urged the release of as many youth as possible to bend the curve of infections within the juvenile justice system.  As of July, four staff members working in these facilities have died from COVID-19.

Among detained youth, COVID-19 cases have been reported in 35 states, the District of Columbia and Puerto Rico. Cases among staff have been reported in 41 states and the District of Columbia.

October 13, 2020 in Impact of the coronavirus on criminal justice, Offender Characteristics, Scope of Imprisonment | Permalink | Comments (3)

Sunday, October 11, 2020

Arizona Supreme Court rejects Eighth Amendment claims by juvenile offenders given de facto life sentences for multiple offenses

On Friday, the Supreme Court of Arizona handed down a unanimous rejection of claims by multiple juvenile offenders subject to de facto life sentences for multiple sentences in Arizona v. Soto-Fong, No. CR-18-0595 (Ariz. Oct. 9, 2020) (available here).  Here is how the opinion begins and a concluding paragraph:

We consider whether consecutive sentences imposed for separate crimes, when the cumulative sentences exceed a juvenile’s life expectancy, violate the Eighth Amendment’s prohibition against “cruel and unusual punishments.”  We conclude that such de facto life sentences do not violate the Eighth Amendment, as interpreted in Graham v. Florida, 560 U.S. 48 (2010), Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana, 136 S. Ct. 718 (2016). Consequently, Graham, Miller, and Montgomery do not constitute a significant change in the law under Arizona Rule of Criminal Procedure 32.1(g)....

Despite the shifting and confusing reasoning embodied in Graham, Miller, and Montgomery, we are bound by the Supremacy Clause to faithfully apply this jurisprudence as we fairly construe it.  Davis, 206 Ariz. at 384 ¶ 34 n.4.  But because those cases do not address or implicate de facto juvenile life sentences, we decline Petitioners’ invitation to expand this jurisprudence one step beyond its reach.  Our respect for the separation of powers, the will of our citizens, and principles of judicial restraint, rather than dicta from inapposite cases, compel our decision.  Thus, we hold that the Eighth Amendment does not prohibit de facto juvenile life sentences.

As this last quoted paragraph may reveal, the Soto-Fong opinion is full of a good deal of snark about the US Supreme Court's rulings in Graham, Miller, and Montgomery.  Discussing Graham, for example, the Arizona Supreme Court calls part of the SCOTUS ruling "dubious" and then takes a "pause" to express "concern" with the Graham opinion’s reference to international law.  Perhaps it is thus unsurprising that the Arizona Supreme Court was seemingly keen to affirm in this case an "enhanced concurrent and consecutive prison sentences totaling nearly 140 years" for a teenager who committed a series of serious arsons.

October 11, 2020 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Thursday, October 08, 2020

"A Willful Choice: The Ineffective and Incompassionate Application of Wisconsin’s Criminal Laws in Combating the Opioid Crisis"

The title of this post is the title of this paper recently posted to SSRN authored by Emily O'Brien. Here is its abstract:

Wisconsin’s drug-induced homicide law, known as the Len Bias law, was intended to prosecute for-profit drug dealers and was rarely charged for several decades after it was enacted in 1986.  In recent years, prosecutors have brought hundreds of Len Bias charges in response to opioid deaths.  Often, these charges are brought against overdose victims’ friends and family members — people who are also mired in addiction and who shared or helped obtain the fatal drug.  In contrast, Wisconsin’s Good Samaritan overdose law (GSOL), enacted in 2014, focuses on harm reduction.  If a person calls for help when another person is overdosing, the law provides both people with some insulation from prosecution of a range of drug-related charges.  These laws approach the problem of overdose death from very different angles: The Len Bias law punishes addicts for their role in overdose deaths, while the GSOL offers addicts protection from prosecution in order to encourage calls for medical intervention in overdose situations.  Unfortunately, the current implementation of the Len Bias law diminishes the potential of GSOL to save lives because addicts are faced the possibility of a homicide charge when they summon help for an overdose victim.

With the rise of lethal synthetic opioids in Wisconsin, the criminal justice system must adjust its current laws and practices in order to reduce overdose deaths.  The criminalization of addiction represented by the Len Bias law thwarts rehabilitation efforts, miring addicts in a cycle of incarceration and drug use that ends with death in too many cases.  This Comment proposes a solution: separating addicts from for-profit drug dealers in the eyes of the law by implementing a joint-user defense in Len Bias cases. Addicts are more likely to use opioids with other addicts than alone.  By removing the possibility of a homicide conviction, addicts will more readily utilize the GSOL and call for medical intervention when a fellow addict is overdosing. Additionally, separating addicts from dealers allows the Len Bias law to be charged in accordance with its intended purpose, while freeing up investigatory and prosecutorial resources for the more complex task of investigating commercial drug dealers and disrupting the drug trade.  This proposed solution would begin to align Wisconsin’s criminal laws with the state’s rehabilitation-focused public health efforts at combating opioid addiction in communities and reducing overdose deaths.

October 8, 2020 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Who Sentences | Permalink | Comments (0)

Wednesday, September 30, 2020

"Youth Justice Under the Coronavirus: Linking Public Health Protections with the Movement for Youth Decarceration"

The title of this post is the title of this notable new report written by Josh Rovner at The Sentencing Project.  Here is the start of its executive summary:

The novel coronavirus, COVID-19, has infected more than 1,800 incarcerated youth and more than 2,500 staff working in the detention centers, residential treatment facilities, and other settings that comprise the deep end of the juvenile justice system.  More than six months after the first infections emerged, the emergency is not over.

According to data collected by The Sentencing Project, COVID-19 cases have been reported among incarcerated youth in 35 states, the District of Columbia and Puerto Rico.  In five states, more than 100 incarcerated youth have tested positive.  Four staff members working in juvenile facilities have died from the virus.

In congregate care settings, this contagious pathogen’s spread was inevitable.  States and localities have taken steps to mitigate COVID-19’s impact, including releasing confined youth, curtailing admissions, limiting visitation and programming, and isolating youth in a manner that mimics solitary confinement.  Given the persistent racial and ethnic disparities in juvenile justice, there is little doubt that youth of color are suffering disproportionately from the virus and the changes within facilities that it has brought.

This report summarizes lessons learned through the first months of the pandemic, focusing on system responses, both positive and negative, to slow the virus’s spread and to protect the safety and wellbeing of youth in the juvenile justice system while keeping the public informed.  Drops in admissions during the pandemic, alongside decisions to release youth at a higher rate than during ordinary times, buttress the long-standing case that youth incarceration is largely unnecessary.  Jurisdictions must limit the virus’s damage by further reducing the number of incarcerated youth.

September 30, 2020 in Impact of the coronavirus on criminal justice, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Saturday, September 26, 2020

Might a notable celebrity endorsement help move a notable criminal justice reform ballot initiative toward passage in Oklahoma?

6416a9d467b9d4d8149586c51171eb55The question in the title of this post is prompted by this local press story headlined "Actress Scarlett Johansson supports Okla. State Question 805 in video."  Here are the basics from this short article (which includes the short video):

Actress Scarlett Johansson supported Oklahoma's State Question 805 in a video shared by Oklahomans for Sentencing Reform.

State Question 805, if passed on Nov. 3, ends repeat sentence penalties for nonviolent offenses in the state of Oklahoma, said officials with Oklahomans for Sentencing Reform. The penalties often add years, decades or even a life sentence for a nonviolent offense if someone had been convicted of a nonviolent offense in the past.

Oklahoma's overcrowded prisons put more women in prison per capita than any state in the nation, Oklahoma to lead the nation in incarceration rates. This is costing taxpayers over half a billion each year on corrections without improving public safety, said officials. If passed, State Question 805 will save the state almost $186 million over the next decade. This funding "could be reinvested in mental health and rehabilitative resources that have been proven to reduce the likelihood that someone will commit another crime," said officials.

State Question 805 is on the ballot in November 3, 2020 elections.

The full endorsement video, which is fairly somber and sadly does not include Black Widow costume or any other Avenger, is available at this link.  I have blogged a few times about this fascinating approach to criminal justice reform, which the "Yes on 805" campaign website describes this way:

WHAT DOES SQ 805 DO?

SQ 805 would end the practice of adding years to a person’s prison sentence for a nonviolent crime because they had a prior nonviolent conviction.  Under SQ 805, people who are convicted of nonviolent crimes could be sentenced up to the maximum allowable time in prison for their crime, but would not receive additional time in prison because of their past.  SQ 805 applies only to people with nonviolent offenses.

WHY IS SQ 805 NEEDED?

Oklahoma is handing down cruel and unfair sentences for minor crimes.  A second conviction for breaking into a shed can result in a life sentence. In Oklahoma an individual served 33 years in prison for writing $400 worth of bad checks, and a mother was sentenced to 15 years for stealing basic necessities and children’s toys from a Walmart. SQ 805 will limit sentences like these that are out of proportion to the crimes.

Unsurprisingly, the "No on SQ 805" campaign website present a distinct account of what this initiative would mean and do:

State Question 805 (SQ805) will create a culture where crime is okay in Oklahoma by reducing penalties for career criminals. With SQ805, habitual offenders of serious crimes will spend less time in prison. These crimes range from domestic violence in the presence of a child, home burglary, to child trafficking, soliciting sex from a minor using technology, animal cruelty and more.

  • SQ 805 will FOREVER treat convicted felons who repeatedly commit crimes, on any but the most heinous of crimes, to the same sentence range as first-time offenders.
  • SQ 805 is a CONSTITUTIONAL CHANGE which prohibits the legislature from addressing any of the myriad of negative consequences SQ 805 will bring.
  • SQ 805 is retroactive and will mandate reduced sentences for many of those currently in prison, disregarding the juries and judges who gave out those sentences.
  • Regardless of if the criminal has been convicted of a felony 20 or more times, under 805, the sentence can never be lengthened or enhanced because of these past actions.

This Ballotpedia page about SQ 805 provides a lot more background information about this initiative, but it does not reference any polling about the measure.  I know this initiative is one I will be watching closely on election night.  If it were to pass in a state like Oklahoma, it could well be rolled out in other initiative states in the years to come.

Prior related posts:

September 26, 2020 in Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Thursday, September 17, 2020

At re-re-re-sentencing, Amy Locane gets eight years in New Jersey state prison for drunk driving vehicular manslaughter

Because it is such an interesting case (and perhaps because I watched Melrose Place way back when), I have blogged repeatedly about the sentencings saga of Amy Locane after her conviction in a tragic and deadly drunk driving case.  Today, Locane was sentenced for the fourth time in this matter, and this Fox News piece provides the details:

Amy Locane has been resentenced to eight years in state prison for a fatal 2010 drunk driving crash that occurred in New Jersey. The former “Melrose Place” actress, 48, has already served a prison sentence but a judge agreed with prosecutors Thursday that her initial sentence was too lenient.

State Superior Court Judge Angela Borkowski said Locane still refuses to fully acknowledge her culpability in the crash that killed 60-year-old Helene Seeman and severely injured Seeman's husband.  State law requires her to serve more than six years before being eligible for parole.  Locane apologized to the Seeman family in a brief statement.  She was placed in handcuffs and taken into custody by court deputies after the proceeding in state court in Somerville.

It was a startling development in a case that has bounced around the New Jersey court system for nearly a decade and has now featured four sentencings in front of three judges, plus numerous appeals.

Locane — who acted in 13 episodes of the popular 1990s Fox series and has also appeared in several movies — was convicted on several counts including vehicular manslaughter, and faced a sentencing range of five to 10 years on the most serious count. The state initially sought a seven-year sentence, but a trial judge sentenced her to three years in 2013.  An appeals court ruled he misapplied the law, but at a resentencing, the same judge declined to give her additional time.

Last year, a different judge sentenced her to five years, but an appeals court ruled he didn't follow guidelines it had set and ordered yet another sentencing.  Locane's attorney, James Wronko, had argued unsuccessfully that sentencing her again would violate double jeopardy protections since she had already completed her initial sentence and parole term.

According to witnesses, Locane had consumed several drinks before she headed home on the night of the accident and slammed into the Seemans' car as it turned into their driveway in Montgomery Township, near Princeton.  The actress contended a third motorist, whose car Locane had bumped into at a traffic light minutes earlier, distracted her by honking at and chasing her.  Locane wasn't indicted for drunken driving, but a state expert testified her blood alcohol level was likely about three times the legal limit and that she was driving roughly 53 mph (85 kmh) in a 35-mph (56-kmh) zone at the time of the crash.

Fred Seeman, who nearly died from his injuries suffered in the crash, attended Thursday's proceeding and said Locane's shifting of blame "shows contempt for this court and the jury that rendered the verdict.”  The judge took a similar view, and said Locane's past alcohol abuse makes her a risk for reoffending.

“You made a conscious decision to drink that day and continued to drink, recognizing at the onset that you needed a ride but didn’t obtain one," Borkowski said.  "If you hadn’t gotten behind the wheel of your vehicle on this night, the incident never would have happened.” Wronko called the sentence “outrageous.  She has always taken full responsibility," and criticized the judge for not taking into account Locane's current sobriety and her work counseling others against alcohol abuse.

Locane has 45 days to appeal her sentence. Wronko said he is waiting to see if the state Supreme Court decides to hear his appeal on the double jeopardy question.

Prior related posts:

September 17, 2020 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Tuesday, September 15, 2020

"Conviction, Imprisonment, and Lost Earnings: How Involvement with the Criminal Justice System Deepens Inequality"

The title of this post is the title of this notable new report from the Brennan Center. A Foreword to report was authored by Joseph Stiglitz, and here is part of its text:

America is approaching a breaking point.  For more than four decades, economic inequality has risen inexorably, stunting productivity, weakening our democracy, and leaving tens of millions struggling to get by in the world’s most prosperous country.  The crises that have rocked the United States since the spring — the coronavirus pandemic, the resulting mass unemployment, and a nationwide uprising for racial justice — have made the inequities plaguing American society more glaring than ever.

This year’s intertwined emergencies have also driven home a reality that some would rather ignore: that the growing gap between rich and poor is a result not just of the market’s invisible hand but of a set of deeply misguided policy choices.  Among them, this groundbreaking report reveals, is our entrenched system of mass incarceration.  Mass incarceration reflects and exacerbates so many dimensions of this country’s divides — in income and health, in voice and power, in access to justice, and most importantly, over race.

The number of people incarcerated in America today is more than four times larger than it was in 1980, when wages began to stagnate and the social safety net began to be rolled back.  We’ve long known that people involved in the criminal justice system — a group that’s disproportionately poor and Black — face economic barriers in the form of hiring discrimination and lost job opportunities, among other factors.  This report demonstrates that more people than previously believed have been caught up in the system, and it quantifies the enormous financial loss they sustain as a result; those who spend time in prison miss out on more than half the future income they might otherwise have earned.

Ascertaining through careful statistical analyses just how costly the mass incarceration system has been to the people ensnared by it is a major achievement.  These findings reframe our understanding of the issue: As a perpetual drag on the earning potential of tens of millions of Americans, these costs are not only borne by individuals, their families, and their communities.  They are also system-wide drivers of inequality and are so large as to have macroeconomic consequences....

These costs come on top of other enormous costs imposed on society by our mass incarceration system.  Some states have spent as much on prisons as on universities.  The pandemic will make public funds even scarcer.  More money spent on incarcerating more people will weaken our future, while the same money spent on expanding our universities will lead to a stronger 21st century economy.

Mass incarceration has been a key instrument in voter suppression, because people with criminal records are deprived of the right to vote in some states, and in many states former prisoners are responsible for re-registering once they are released.  This undermines democracy: since poor and Black people suffer from mass incarceration disproportionately, they will be underrepresented in our electorate.

Meanwhile, a nationwide reckoning over deep-rooted racial injustice is forcing our country to come to terms with the ways in which these injustices have been perpetuated in the century and a half since the end of slavery.  For the past four decades, mass incarceration — with the deprivation of political voice and economic opportunity that is so often associated with it — has been at the center.  It renders economic mobility for so many Black Americans nearly impossible....

This report shows what needs to be done to stop mass incarceration. Equally important, it shows how to deal with its legacy: the large number of American citizens with criminal records.  It was wrong that they lost so many of their formative years, often for minor infractions. It is doubly wrong that they suffer for the rest of their lives from the stigma associated with imprisonment.  For them, and for our entire society, we need to minimize the consequences of that stigma.

There is much that has to be done if our society is to fully come to terms with our long history of racial injustice.  Stopping mass incarceration is an easy place to begin.  This report makes a compelling case for the enormous economic benefits to be derived from doing so.

September 15, 2020 in Fines, Restitution and Other Economic Sanctions, Offender Characteristics, Race, Class, and Gender | Permalink | Comments (0)

Wednesday, September 09, 2020

New report details racial disparities in every stage of the Massachusetts criminal justice system

Via email I received word of this notable new report released today by the Harvard Law School Criminal Justice Policy Program (CJPP) titled simply "Racial Disparities in the Massachusetts Criminal System."  Here is a brief account of the 100+-page report and its findings from the text of the email that I received:

People of color are drastically overrepresented in Massachusetts state prisons.  According to the Massachusetts Sentencing Commission’s analysis of 2014 data, the Commonwealth significantly outpaced national race and ethnicity disparity rates in incarceration, imprisoning Black people at a rate 7.9 times that of White people and Latinx people at 4.9 times that of White people.

In an attempt to better understand the sources of these disparities, Chief Justice Ralph D. Gants of the Supreme Judicial Court of Massachusetts asked Harvard Law School to research racial disparities in the Massachusetts criminal system.

CJPP collected administrative data from several criminal justice agencies, analyzing over 500,000 cases. In our report, we detail the results of our analysis of every stage of the criminal process. Our findings include:

  • Black and Latinx people are overrepresented in the criminal system.  Although Black people make up only 6.5% of the state’s population, African Americans are the subjects of 17.1% of criminal court cases. Similarly, Latinx people constitute only 8.7% of the Massachusetts population but 18.3% of the cases.  By contrast, White people, who make up roughly 74% of the Massachusetts population, account for only 58.7% of cases in the criminal system.
  • Black and Latinx people sentenced to incarceration in Massachusetts receive longer sentences than their White counterparts, with Black people receiving sentences that are an average of 168 days longer and Latinx people receiving sentences that are an average of 148 days longer.
  • Racial and ethnic differences in the type and severity of initial charge account for over 70 percent of the disparities in sentence length, overshadowing all other factors, including defendants’ criminal history and demographics, court jurisdiction, and neighborhood characteristics.
  • Among the subset of cases where the person was sentenced to incarceration in a state prison (i.e. cases involving charges that carry the longest potential sentences and where the racial disparity is largest), Black and Latinx people are convicted of charges roughly equal in seriousness to their White counterparts despite facing more serious initial charges and longer sentences.
  • Black and Latinx people charged with drug offenses and weapons offenses are more likely to be incarcerated and receive longer incarceration sentences than White people charged with similar offenses. This difference persists after controlling for charge severity and other factors.

September 9, 2020 in Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

Wednesday, September 02, 2020

Notable exploration of criminal justice structures for "emerging adults"

This morning I received an email altering me to a big new report on an interesting modern topic that is focused on a population and a region especially near to me heart.  Here is the text of the email, which provides a link to the nearly 100-page report and a useful overview of its coverage:

Today, Juvenile Law Center released “Rethinking Justice for Emerging Adults: Spotlight on the Great Lakes Region,” a report on criminal justice reforms for young people between the ages of 18 and 24.  The report, funded by a grant from the Joyce Foundation, cites new research which shows that these “emerging adults” share many of the same characteristics as teens in the juvenile justice system, yet they are treated very differently.  Emerging adults also represent a disproportionate share of the justice-involved population, accounting for a third of all criminal arrests nationwide.  They also experience the worst racial disparities in incarceration and arrest rates of any age group.

“Racism permeates our criminal justice system at every stage and available data suggests racial and ethnic disparities are worst for those in the emerging adult population,” said Katrina L. Goodjoint, Staff Attorney at Juvenile Law Center and co-author of the report. “In Illinois, 9.4 Black emerging adults are arrested per every white emerging adult. Eliminating mass incarceration and reducing racial disparities necessarily require reforming the justice system’s punitive treatment of emerging adults.”

Juvenile Law Center’s report highlights the need for a new, developmentally appropriate approach to criminal justice involvement for this population.  The report includes research showing that many areas of the law — from new federal tobacco regulations to extended access to health insurance under the Affordable Care Act — already recognize and make accommodations for the developmental characteristics of emerging adulthood.  Justice systems around the country have also begun to do the same.  The report describes some of the new initiatives targeted at this population, including:

  • raising the age of juvenile court jurisdiction
  • youthful offender statutes
  • diversion programs, young adult courts, and other specialized criminal justice programs for emerging adults
  • modifications to mandatory sentences and other harsh penalties
  • expungement of records
  • expanded access to supports and services outside the criminal justice system.

“People do not magically transform from children to adults on their 18th birthdays,” said Karen U. Lindell, Senior Attorney at Juvenile Law Center and one of the report’s authors. “Other areas of the law have long recognized that fact — limiting young adults’ abilities to engage in risky activities, like drinking or purchasing firearms, and offering them additional support, like greater health insurance coverage and special education services.  Yet the criminal justice system is just beginning to acknowledge the distinctive needs and characteristics of emerging adults.”

The report released today focuses on the laws and policies affecting emerging adults in six Great Lakes region states: Illinois, Indiana, Michigan, Minnesota, Ohio and Wisconsin. For each of these states, the report provides a comprehensive overview of the current legal landscape for emerging adults, including available data on justice-involved emerging adults, relevant criminal and juvenile justice statutes, existing criminal justice programs, and other systems serving emerging adults in the state.  By providing an in-depth analysis of the current legal landscape, this report lays the foundation for meaningful criminal justice reform for emerging adults — both in the Great Lakes region and throughout the country.

September 2, 2020 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Monday, August 31, 2020

"Locking up my generation: Cohort differences in prison spells over the life course"

The title of this post is the title of this new Criminology article authored by Yinzhi Shen, Shawn D. Bushway, Lucy C. Sorensen and Herbert L. Smith.  Here is its abstract:

Crime rates have dropped substantially in the United States, but incarceration rates have remained high.  The standard explanation for the lasting trend in incarceration is that the policy choices from the 1980s and 1990s were part of a secular increase in punitiveness that has kept rates of incarceration high.  Our study highlights a heretofore overlooked perspective: that the crime–punishment wave in the 1980s and 1990s created cohort differences in incarceration over the life course that changed the level of incarceration even decades after the wave. 
With individual‐level longitudinal sentencing data from 1972 to 2016 in North Carolina, we show that cohort effects — the lingering impacts of having reached young adulthood at particular times in the history of crime and punishment — are at least as large (and likely much larger) than annual variation in incarceration rates attributable to period‐specific events and proclivities.  The birth cohorts that reach prime age of crime during the 1980s and 1990s crime–punishment wave have elevated rates of incarceration throughout their observed life course.  The key mechanism for their elevated incarceration rates decades after the crime–punishment wave is the accumulation of extended criminal history under a sentencing structure that systematically escalates punishment for those with priors.

August 31, 2020 in Detailed sentencing data, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)