Monday, April 22, 2019

"The case against solitary confinement"

The title of this post is the headline of this lengthy and effective Vox piece from last week.  I call the piece effective in part because, in addition to being well-structured and well-written, it includes lots and lots of links.  Here is how the piece starts (with links retained):

Albert Woodfox was held in solitary confinement for more than 40 years in a Louisiana prison before being released in 2016, when he was 69 years old.  In his book Solitary, published last month, Woodfox writes that every morning, “I woke up with the same thought: will this be the day? Will this be the day I lose my sanity and discipline? Will I start screaming and never stop?”

Thousands of people — at least 61,000 on any given day and likely many thousands more than that — are in solitary confinement across the country, spending 23 hours per day in cells not much bigger than elevators.  They are disproportionately young men, and disproportionately Hispanic and African American.  The majority spend a few months in it, but at least a couple of thousand people have been in solitary confinement for six years or more. Some, like Woodfox, have been held for decades.

Solitary confinement causes extreme suffering, particularly over prolonged periods of months or years.  Effects include anxiety, panic, rage, paranoia, hallucinations, and, in some cases, suicide.

The United Nations special rapporteur on torture, Juan E. Méndez, deemed that prolonged solitary confinement is a form of torture, and the UN’s Mandela Rules dictate that it should never be used with youth and those with mental or physical disability or illness, or for anyone for more than 15 days.  Méndez, who inspected prisons in many countries, wrote, “[I]t is safe to say that the United States uses solitary confinement more extensively than any other country, for longer periods, and with fewer guarantees.”

Many practices in the US criminal justice system are harsh, ineffective, even absurd, from the widespread use of money bail to detain unconvicted people to extremely long sentences and parole terms, and a host of other outrages.  But placing people in solitary stands out as a violation of human rights.

Well over a century ago in the US, the practice fell out of favor, partly because of its capacity for psychological harm. Yet starting in the 1980s, its use in prisons and jails exploded again.

Over the past decade, there has been a movement to (again) stop the widespread use of solitary. There have been major steps forward in some states.  But there’s considerable need for more progress — and wider acknowledgment that this is something that we are all accountable for. As Laura Rovner, a law professor at the University of Denver, put it in a recent talk, “We torture people here in America, tens of thousands of them every day … it’s done in our names, with our tax dollars, behind closed doors.”

April 22, 2019 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (0)

Sunday, April 21, 2019

"Misdemeanors by the Numbers"

The title of this post is the title of this notable new article now available via SSRN authored by Sandra Mayson and Megan Stevenson.  Here is its abstract:

Recent scholarship has underlined the importance of criminal misdemeanor law enforcement, including the impact of public-order policing on communities of color, the collateral consequences of misdemeanor arrest or conviction, and the use of misdemeanor prosecution to raise municipal revenue.  But despite the fact that misdemeanors represent more than three-quarters of all criminal cases filed annually in the United States, our knowledge of misdemeanor case processing is based mostly on anecdote and extremely localized research.  This Article represents the most substantial empirical analysis of misdemeanor case processing to date.  Using multiple court-record datasets, covering several million cases across eight diverse jurisdictions, we present a detailed documentation of misdemeanor case processing from the date of filing through adjudication and sentencing.

The resulting portrait reveals a system that disproportionately impacts poor people and people of color.  Between 2011 and 2016, each jurisdiction studied relied on monetary bail, which resulted in high rates of pretrial detention even at relatively low amounts, and imposed court costs upon conviction.  There were substantial racial disparities in case-filing rates across locales and offense categories.  The data also, however, highlight profound jurisdictional heterogeneity in how misdemeanors are defined and prosecuted.  The variation suggests that misdemeanor adjudication systems may have fundamentally different characters, and serve different functions, from place to place. It thus presents a major challenge to efforts to describe and theorize the contemporary landscape of misdemeanor justice.  At the most fundamental level, the variation calls into question the coherence of the very concept of a misdemeanor, or of misdemeanor criminal justice.  As appreciation for the significance of low-level law enforcement builds, we urge scholars and policymakers to attend carefully to the complexity of this sub-felony world.

April 21, 2019 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (5)

Saturday, April 20, 2019

Thoughtful look into prison abolitionism (and prison history) in theory and practice

The New York Times magazine has this week's must read under the headline "Is Prison Necessary? Ruth Wilson Gilmore Might Change Your Mind."  The piece is a profile of a noted prison abolitionist along with a broader discussion of prison history and prison abolitionism.  I heartily recommend the terrific lengthy piece in full, and here is an extended excerpt:

Prison abolition, as a movement, sounds provocative and absolute, but what it is as a practice requires subtler understanding.  For Gilmore, who has been active in the movement for more than 30 years, it’s both a long-term goal and a practical policy program, calling for government investment in jobs, education, housing, health care — all the elements that are required for a productive and violence-free life. Abolition means not just the closing of prisons but the presence, instead, of vital systems of support that many communities lack.  Instead of asking how, in a future without prisons, we will deal with so-called violent people, abolitionists ask how we resolve inequalities and get people the resources they need long before the hypothetical moment when, as Gilmore puts it, they “mess up.”...

In the wake of the Enlightenment, European reformers gradually moved away from corporal punishment tout court; people would go to prison for a set period of time, rather than to wait for the punishment to come.  The penitentiary movement in both England and the United States in the early 19th century was motivated in part by the demand for more humanitarian punishment. Prison was the reform.

If prison, in its philosophical origin, was meant as a humane alternative to beatings or torture or death, it has transformed into a fixed feature of modern life, one that is not known, even by its supporters and administrators, for its humanity.  In the United States, we now have more than two million incarcerated people, a majority of them black or brown, virtually all of them from poor communities.  Prisons not only have violated human rights and failed at rehabilitation; it’s not even clear that prisons deter crime or increase public safety.

Following an incarceration boom that began all over the United States around 1980 and only recently started to level off, reform has become politically popular.  But abolitionists argue that many reforms have done little more than reinforce the system. In every state where the death penalty has been abolished, for example, it has been replaced by the sentence of life without parole — to many people a death sentence by other, more protracted means.  Another product of good intentions: campaigns to reform indeterminate sentencing, resulting in three-strike programs and mandatory-minimum sentencing, which traded one cruelty for another. Over all, reforms have not significantly reduced incarceration numbers, and no recent reform legislation has even aspired to do so.

For instance, the first federal prison reform in almost 10 years, the bipartisan First Step Act, which President Trump signed into law late last year, will result in the release of only some 7,000 of the 2.3 million people currently locked up when it goes into effect. Federal legislation pertains only to federal prisons, which hold less than 10 percent of the nation’s prison population, and of those, First Step applies to only a slim subset.  As Gilmore said to me, noting an outsize public enthusiasm after the act passed the Senate, “There are people who behave as though the origin and cure are federal.  So many are unaware of how the country is juridically organized, and that there are at least 52 criminal-legal jurisdictions in the U.S.”

Which isn’t to say that Gilmore and other abolitionists are opposed to all reforms. “It’s obvious that the system won’t disappear overnight,” Gilmore told me.  “No abolitionist thinks that will be the case.”  But she finds First Step, like many state reforms it mimics, not just minor but exclusionary, on account of wording in the bill that will make it even harder for some to get relief.  (Those convicted of most higher-level offenses, for example, are ineligible for earned-time credits, a new category created under First Step.)  “So many of these proposed remedies don’t end up diminishing the system.  They regard the system as something that can be fixed by removing and replacing a few elements.”  For Gilmore, debates over which individuals to let out of prison accept prison as a given.  To her, this is not just a moral error but a practical one, if the goal is to actually end mass incarceration. Instead of trying to fix the carceral system, she is focused on policy work to reduce its scope and footprint by stopping new prison construction and closing prisons and jails one facility at a time, with painstaking grass-roots organizing and demands that state funding benefit, rather than punish, vulnerable communities.

“What I love about abolition,” the legal scholar and author James Forman Jr. told me, “and now use in my own thinking — and when I identify myself as an abolitionist, this is what I have in mind — is the idea that you imagine a world without prisons, and then you work to try to build that world.”  Forman came late, he said, to abolitionist thinking. He was on tour for his 2017 Pulitzer Prize-winning book, “Locking Up Our Own,” which documents the history of mass incarceration and the inadvertent roles that black political leaders played, when a woman asked him why he didn’t use the word “abolition” in his arguments, which, to her, sounded so abolitionist.  The question led Forman to engage seriously with the concept.  “I feel like a movement to end mass incarceration and replace it with a system that actually restores and protects communities will never succeed without abolitionists. Because people will make compromises and sacrifices, and they’ll lose the vision.  They’ll start to think things are huge victories, when they’re tiny. And so, to me, abolition is essential.”

The A.C.L.U.’s Smart Justice campaign, the largest in the organization’s history, has been started with a goal of reducing the prison population by 50 percent through local, state and federal initiatives to reform bail, prosecution, sentencing, parole and re-entry.  “Incarceration does not work,” said the A.C.L.U. campaign director Udi Ofer.  The A.C.L.U., he told me, wants to “defund the prison system and reinvest in communities.” In our conversation, I found myself wondering if Ofer, and the A.C.L.U., had been influenced by abolitionist thinking and Gilmore. Ofer even seemed to quote Gilmore’s mantra that “prisons are catchall solutions to social problems.”  When I asked him, Ofer said, “There’s no question.  She’s made tremendous contributions, even just in helping to bring about a conversation on what this work really is, and the constant struggle not to replace one oppressive system with another.”

April 20, 2019 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (2)

Monday, April 15, 2019

Notable new advocacy against a "soft-on-crime prosecutorial agenda"

Kimberly Guilfoyle has this notable new Hill commentary under the headline "Avoid the slippery slope of 'soft-on-crime' policies that progressives want." Much of the piece is focused on immigration policy, but other domestic crime and punishment issues are covered, as revealed by these excerpts:

The liberal wing of the Democratic Party is adamant on upending decades of sound law enforcement policies in favor of a radical progressive approach.  Open borders, weak-on-crime prosecutors, and drug injection sites are on the table. It’s time to fight back against these misguided policies and take a stand for the rule of law.

By all measures, Americans are enjoying a golden era of safety.  Violent and property crime offenses have plummeted in the past 25 years.  In a recent Gallup poll, only 30 percent of Americans stated they would be afraid to walk alone at night within a mile of where they live, a historic low for this survey question.

As a former prosecutor, I know a thing or two about policies that keep people safe. To be clear: “Broken Windows” policing works. Locking up criminals works.  Strong sentencing guidelines work.  And yet, Democrats want to completely throw this time-tested playbook out the window to appease their growing progressive base....

Buoyed by liberal, wealthy donors and other special interest groups, progressive prosecutors are gaining traction across the country.  Nowhere is this better illustrated than in Philadelphia where District Attorney Larry Krasner has worked diligently to craft a soft-on-crime prosecutorial agenda.  Under Krasner’s guidelines, a grab bag of criminal offenses no longer are prosecuted.  Heinous crimes such as homicide even have gotten the “kid gloves” treatment because Krasner believes that we should not “overcharge” felons, even those who kill.  As a result, a shocking number of defendants have had their sentences reduced from murder to manslaughter.  Krasner has become the poster child for other progressive district attorneys across the country seeking to undermine the rule of law.

Progressives also have gained steam in their fight to open up so-called “safe” injection sites across the country, where addicts can use illegal street drugs in a medically sanctioned environment. Undeniably, safe injection sites further normalize the use of extreme drugs.  These sites offer no restrictions on who can shoot up and when. Should a minor be allowed to try black tar heroin for the first time uninterrupted? Are law enforcement officers going to be forced to watch while exploitative drug dealers sell dope to vulnerable addicts? How many times can an addict overdose in a single day?

Thankfully, the Trump administration has been pushing back against these radical policies and standing strong for the rule of law.  This means tougher punishments for criminal aliens and more funds for border security measures, stronger measures against those flooding our communities with opioids, and promises of a stringent crackdown on any city that supports a safe injection site.

These policies make our country safer and stronger. Law enforcement should always focus on putting the interests of families and children first.  With this in mind, we can’t let the radical left undue decades of steady progress.  We must stand with President Trump to keep our nation safe.

Perhaps unsurprisingly, this commentary does not mention that, according to Philadelphia Police Department data, violent crime in Philly reportedly went down by five percent in 2018 (though homicides were up 10%), and violent crime has remained at that lower rate so far in 2019 (though with homicide still moving up).  This commentary also, notably, makes no mention of the Trump Administration's support for the FIRST STEP Act.   In this context, I know I am happy to "stand with President Trump" when he stressed at the White House this important point earlier this month: "Americans from across the political spectrum can unite around prison reform legislation that will reduce crime while giving our fellow citizens a chance at redemption."

Specifics aside, I highlight this commentary because it provide a useful reminder of how readily we might slide back into the tired-old "soft-on-crime" rhetoric that defined domestic discourse on crime and punishment for decades in the United States. Though there are no shortage of wedge issues in our current political discussions, crime and punishment has a dangerously classic character.

April 15, 2019 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (4)

Saturday, April 13, 2019

"Introducing Disruptive Technology to Criminal Sanctions: Punishment by Computer Monitoring to Enhance Sentencing Fairness and Efficiency"

The title of this post is the title of this paper recently posted to SSRN authored by Mirko Bagaric, Dan Hunter and Colin Loberg.  Here is its abstract:

The United States criminal justice system is the most punitive on earth.  The total correctional population is nearly seven million, equating to a staggering one in thirty-eight adults.  Most of the correctional population comprises offenders who are on parole or probation.  The financial burden this imposes on the community is prohibitive.  Further, a high portion of offenders who are on parole or probation offend during the period of the sanction.  This Article proposes an overdue solution to the crisis which exists in relation to the imposition of criminal sanctions.  The solution is especially timely given that there is now a considerable consensus emerging among lawmakers and the wider community that reforms need to be implemented to reduce the cost of criminal sanctions and improve their effectiveness.  Moreover, the United States Sentencing Commission has recently proposed an amendment to increase the availability of sentences which are alternatives to incarceration. 

With little hint of exaggeration, the sentencing system remains in a primitive state when it comes to adopting technological advances.  This Article seeks to address this failing as a means of overcoming the main shortcomings of current common criminal sanctions.  Forty years ago, it was suggested that the most effective way to deal with crime was to assign a police officer to watch over the every move of each offender.  The proposal was dubbed “cop-a-con”.  This would nearly guarantee that offenders did not re-offend, while eliminating the adverse consequences of prison.  This proposal was manifestly unviable due to its excessive costs.  Technological advances now make the concept achievable in a cost-effective manner.

It is now possible to monitor the locations and actions of individuals in live time and to detect crime as it is in the process of being committed.  Adapted properly to the criminal justice system, technology has the potential to totally reshape the nature and efficacy of criminal sanctions.  The sanctions which are currently utilized to deal with the most serious offenders, namely imprisonment, probation and parole can be replaced with technological monitoring which can more efficiently, effectively and humanely achieve the appropriate objectives of sentencing.  Technological disruption in the criminal justice sector is not only desirable, it is imperative.  Financial pressures and normative principles mandate that the United States can no longer remain the world’s most punitive nation.  The sanction suggested in the Article (“the monitoring sanction”) has the potential to more efficiently and economically impose proportionate punishment than current probation and parole systems, while enhancing public safety.

April 13, 2019 in Purposes of Punishment and Sentencing, Scope of Imprisonment, Technocorrections | Permalink | Comments (0)

Wednesday, April 10, 2019

"Vague Comparisons and Proportional Sentencing"

The title of this post is the title of this new theoretical paper authored by Jacob Bronsther now on SSRN.  Here is its abstract:

The “small improvement problem” (“the Problem”) applies when no option in a comparison is best nor, it seems, are the options equal, because a small improvement to one would fail to make it the better choice.  I argue that vagueness causes the Problem, such that the options are vaguely equal or vaguely “related.” I then unpack an important instance of the Problem, the comparison between a crime and a punishment upon which the ideal of a retributively deserved sentence is based.  I argue that this comparison is not only vague, but remarkably vague, leading to an expansive array of “not undeserved” sentences.  I conclude, however, that retributivism can only justify the least harmful “not undeserved” sentence.

April 10, 2019 in Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Saturday, April 06, 2019

"Making Jail a Last Resort" or "If Prisons Don’t Work, What Will?"

The title of this post are the two somewhat different (bad) headlines I have seen for this great New York Times commentary authored by Emily Bazelon (whose great timely new book is titled "Charged: The New Movement to Transform Prosecution and End Mass Incarceration.")  I am much more partial to the first headline than the second, but neither comes close to capturing effectively the spirit and themes of the wide-ranging piece.  So, go read the full piece, and here are some extended excerpts:

The United States spends far too much money locking up far too many people for far too long. A few years ago, a politician had to be brave to say anything like that out loud. Now it’s a mainstream and bipartisan view....  It’s all pretty head-spinning after decades of elected officials competing to lock more people up and spotlight the scariest crimes. Now, with public opinion shifting far and fast and politicians hurrying to catch up, you could even argue that criminal justice reform has become the new marriage equality in terms of the turnaround in public attitudes.

That presents a major opportunity for Democratic presidential candidates.  But for all the energy behind reform, no presidential candidate has articulated a big, comprehensive vision for transformational change.  There’s a consensus that the system is broken, but no agreement on how to fix it.  The presidential candidate looking to distinguish herself might start by looking at a new wave of reform-minded district attorneys who are challenging conventional law-and-order approaches in red states and blue ones.

For the candidates, thematically, a starting point should be that wealth should not determine a person’s fate in court, and profit should not drive the system.  Bail bonds, privatized probation and corporate-run prisons are parasitic features of the justice system.  Ending cash bail should be at the top of every candidate’s criminal justice agenda.  So should getting rid of fines and fees that help fund local governments but trap people in cycles of debt....

To end mass incarceration, however, exempting nonviolent offenses from jail time isn’t enough.  People convicted of violent crimes make up more than half of the country’s state prison population. But the image of prisons overflowing with murderers and rapists is wrong.  In many states, “violent felonies” include offenses like breaking into an empty house or snatching a purse or iPhone on the street.  Reducing sentences for these offenses — and changing what counts as a violent felony to begin with — is a good way to start lowering this share of the prison population.

And that fits in with a second theme for candidates: People deserve a second chance, because many grow and change. They robbed to feed an addiction and then got sober. They assaulted someone because they were mentally ill and then got treatment and stabilized. They mature as they age beyond their teens and early 20s.  That’s why it makes sense to reconsider how long a person should stay in prison after doing some time....

Parole offers another opening for second chances. In Texas, says Scott Henson, an activist who blogs at the site Grits for Breakfast, “our parole rates have gone from 15 percent to the high 30s in the last decade,” He said the increase is “having more impact than any bill we’ve passed even through the legislature.” He thinks the reason for the rise is a humdrum logistical one: The state unofficially uses parole as a way to reduce prison overcrowding.

We should also focus on redefining the terms of the public safety debate.  Ending mass incarceration, and ensuring fairness throughout the criminal justice system, aren’t in tension with public safety.  They’re integral to it.  People tend to uphold the law when they believe it’s reasonable and applied evenly.  When people have that faith, they are more likely to help the police solve crimes....

Finally, incarceration should be the last resort, not the default.  In Brooklyn, District Attorney Eric Gonzalez has said this idea is central to his tenure.  His counterpart in Boston, Rachael Rollins, last month instructed prosecutors to ask for jail only “when any other recommendation would compromise” safety.  When no other option than jail or prison will do, it’s important to remember that the vast majority of people who go in also get out. Making sure they have the tools to lead productive lives when they emerge — like job training and access to decent housing — is a public good.

Presidents don’t actually control the key levers of the American punishment machine.  About 80 percent of the people who are locked up today are in state and local jails and prisons.  But presidents, and presidential campaigns, can raise the profile of an issue and set a tone.  The way they talk about repairing our broken criminal justice system speaks loudly to broader issues about racial and wealth inequality. Presidents can also shape the behavior of states and cities with funding and other incentives, like redirecting money to treatment and prevention programs.

Were I in charge of devising a headline for this piece, I might go with something like "How Prosecutors and Presidential Candidates Advance Criminal Justice Reform." But this is not the first, nor will it be the last, great newspaper piece without a headline to serve it well.  Of course, the piece itself leaves out some important stories like the achievement of the FIRST STEP Act and the need for clemency reform (points recently stressed by Senator and Prez canadide Amy Klobuchar).  But there is so much getting done and needing to be done in this space now, it is hard to fault any piece of writing for not covering everything.

April 6, 2019 in Campaign 2020 and sentencing issues, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (1)

Wednesday, April 03, 2019

"Limiting Identity in Criminal Law"

The title of this post is the title of this interesting new article recently posted to SSRN and authored by Mihailis Diamantis.  Here is its abstract:

People change with time. Their personalities, values, and preferences shift incrementally as they accrue life experience, discover new sources of meaning, and form/lose memories. Accumulated psychological changes eventually reshape not just how someone relates to the world about her, but also who she is as a person.  This transience of human identity has profound implications for criminal law.  Previous legal scholarship on personal identity has assumed that only abrupt tragedy and disease can change who we are. However, psychologists now know that the ordinary processes of growth, maturation, and decline alter us all in fundamental respects.  Many young adults find it hard to identify with their adolescent past. Senior citizens often reflect similarly on their middle years.  However tightly we hold on to the people we are today, at some tomorrow we inevitably find ourselves changed.

Criminal justice has not come to grips with this aspect of the human condition.  The law — by imposing lengthy sentences, allowing enduring consequences of conviction, and punishing long bygone violations — assumes that people’s identities remain fixed from birth to death.  If people do change with time, these policies must violate the criminal law’s most basic commitment to prosecute and punish present-day people only for crimes they (and not some different past person) committed.

Drawing on contemporary psychology and philosophy of personal identity, this Article concludes that criminal law punishes too often and too severely. Lengthy prison terms risk incarcerating people past the point at which their identity changes.  Elderly inmates who have languished on death row for decades should have a new claim for release — that they are now different people, innocent of the misdeeds of yesteryear.  One-time felons should recover lost civil rights sooner.  And defendants should benefit from juvenile process well into their twenties, when personal identity first begins to stabilize.  By confronting the challenges posed by the limits of personal identity, the criminal law can become more just and humane.

April 3, 2019 in Collateral consequences, Offender Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (0)

Tuesday, April 02, 2019

"The Next Step: Ending Excessive Punishment for Violent Crimes"

The title of this post is the title of this notable new report written by Nazgol Ghandnoosh, Senior Research Analyst at The Sentencing Project.  Here is its executive summary:

While the First Step Act and other criminal justice reforms have limited the number of people imprisoned for drug crimes, they have yet to meaningfully reduce excessive penalties for violent crimes.  Nearly half of the U.S. prison population is now serving time for a violent offense, including assault and robbery.

Although the violent crime rate has plummeted to half of its early-1990s level, the number of people imprisoned for a violent offense grew until 2009, and has since declined by just 3%.  This trend stems from increased prison admissions and sentence lengths, despite evidence that excessive penalties are counterproductive.  Long sentences incapacitate older people who pose little public safety threat, produce limited deterrent effect since most people do not expect to be caught, and detract from more effective investments in public safety.

For those who seek to end mass incarceration, there are signs of hope.  In the past two decades, local, state, and federal lawmakers, governors, judges, and practitioners have rejected the death penalty, shortened excessive prison terms for violent convictions, scaled back collateral consequences, narrowed broad definitions of violence, and ended long term solitary confinement.  The 15 reforms featured in this report, implemented in over 19 states, represent more effective, fiscally sound, and morally just responses to violence.  While exceptions in a punitive era, these reforms serve as models for the future.  For example:

Rejecting torture in prison

In 2017, Colorado Department of Corrections’ executive director Rick Raemisch restricted solitary confinement to only serious violations in prisons and set a maximum duration of 15 days.

Using discretion to reduce extreme sentences

Philadelphia District Attorney Larry Krasner seeks to end the city’s heavy reliance on life without parole (LWOP) sentences.  He has made case-by-case evaluations when making resentencing offers to individuals convicted as juveniles, shown restraint in charging decisions and plea offers in homicide cases, and endorsed legislation to allow people serving LWOP to be evaluated for parole after 15 years of incarceration.

Legislators reducing excessive sentences

Mississippi legislators reformed the state’s truth-insentencing requirement for violent crimes in 2014, reducing the proportion of a sentence that individuals with certain violent convictions have to serve before becoming eligible for parole from 85% to 50%.

Recognizing the rehabilitative potential of youth and young adults

In 2010, the Supreme Court ruled that LWOP sentences were unconstitutional for non-homicide crimes committed by juveniles. The Court also later ruled that mandatory LWOP sentences for homicide failed to recognize young people’s “diminished culpability and greater prospects for reform.”  In 2018, California built on this precedent by directing individuals convicted under age 26 to “Youth Offender Parole Hearings.”

Scaling back collateral consequences

Floridians voted in 2018 to re-enfranchise people with felony convictions, including those convicted of most violent crimes.

The reforms identified in this report demonstrate that it is possible to undo excessive penalties for violent crimes while also promoting public safety. They are the next step of criminal justice reform and offer blueprints for policies that will better enable an end to mass incarceration within our lifetime.

April 2, 2019 in Offense Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Saturday, March 30, 2019

Encouraging developments in remarkable federal case that threatened old prison term after obvious rehabilitation

Download (13)I had been meaning to blog about this remarkable story first reported in the New Haven Independent under the headline "Glitch May Return Rehab’d Man To Prison." Here is the backstory from that piece: 

Jermaine Demetrius Anderson may have to leave his two jobs, his condo in Westville, his local “church family,” and the stable, crime-free life he has built for himself in the Elm City — and go to prison. All because of an apparent miscommunication over a decade ago between the Connecticut state judicial system and the federal court in Philadelphia.

His hope now is the federal government — maybe even President Donald Trump — will cut him a break.

On Feb. 28, Paul Diamond, a judge with the U.S. District Court for the Eastern District of Pennsylvania, signed a warrant for Anderson’s arrest for his failure to serve an outstanding 16-month federal sentence. The sentence dates to a crime that occurred 16 years ago.

The federal court issued that sentence to Anderson, now a 43-year-old employee for the city’s parks department, in 2005 after he pleaded guilty to two felony counts of possessing and passing counterfeit currency and one count of identity theft while living in Pennsylvania. He committed the crimes in 2003.

Anderson never served that federal sentence. Even though he thought he had. That’s because he spent three years in state prison in Connecticut after pleading guilty to similar but separate counterfeit currency charges in New Haven in 2003. He said he believed he was serving his state and federal sentences concurrently while locked up in Webster Correctional Institution in Cheshire.

After finishing that state sentence in November 2006, the state judicial system didn’t remand him to federal custody in Philadelphia. He said no one reached out to him and said he had to report to the Eastern District of Pennsylvania to serve more time for the federal offense. He thought he had done his time. He set about rebuilding his life in New Haven.

Thirteen years later, U.S. marshals came pounding on his door in New Haven last week, claiming that he had evaded arrest and demanding that he report back to Pennsylvania to serve 16 months in federal prison.

Local attorney Michael Dolan said he has been in touch with Philadelphia federal attorneys, and has urged them to reconsider requiring Anderson to serve federal time so long after he was sentenced and so long after he served time in state prison on similar charges. “It would appear that the goals of the criminal justice system have been met,” he said about his thoroughly rehabilitated client....

Robert Clark, a spokesman for the U.S. Marshals Service, Eastern District of Pennsylvania, told the Independent that the marshals unearthed Anderson’s outstanding federal sentence and the slip-up between the Connecticut state judicial system and the Pennsylvania federal district court during a routine audit.

“During an internal audit of custody detainers by the U.S. Marshals in the Eastern District of Pennsylvania,” he said, “a case dating back to 2005 was found in which a sentenced man, Jermaine Demetrius Anderson, had been sent to Connecticut to face state charges. After a conviction and sentence served in Connecticut, Anderson should have been held for transfer back to federal custody; instead, he was mistakenly released. Upon the Marshals providing this information to a federal judge, the court issued a bench warrant for Anderson for failure to serve an outstanding federal sentence. Anderson was arrested in Connecticut March 20, released on bond and ordered to appear in U.S. district court in Philadelphia April 4. As the enforcement arm of the federal courts, the Marshals ensure that individuals with federal warrants are brought to face justice. Ultimately, the federal court system will make a determination on Anderson’s outstanding federal sentence.”

Dolan called Anderson’s case a prime example of someone who committed a crime, took responsibility by pleading guilty, served time in prison, and has subsequently successfully rehabilitated himself. “He’s been crime free, drug free, has employment,” Dolan said. “And now they want to take him back into custody.”

“It’s called corrections,” Anderson said. “I corrected myself. I don’t want pity. I just want people to be ethical.”

“I wasn’t evading,” he continued. “I wasn’t on the run.”

Encouragingly, this new CNN piece suggests an ethical outcome to this case may be in the works. The piece is headlined "Man who feared feds would finally impose sentence may have deal to avoid more prison," and here are the new developments:

A judge issued a bench warrant and Anderson was due back in court April 4, when it's possible he could be detained and sent to federal prison.

That apparently won't happen now after his lawyer said he reached a verbal agreement with prosecutors and the Bureau of Prisons to give Anderson credit for time "at liberty."

"I'm overjoyed but waiting for official paperwork," Anderson said, adding, "it's a blessing, but I want the blessing to be official. My heart is back in my chest where it should be." Attorney Michael Dolan said Friday he does not have an official agreement in writing.

CNN's efforts to reach the US attorney's office and the office of the federal judge overseeing the case were not immediately successful....

Dolan helped get Anderson released the day the marshals detained him, and he has been working with federal public defenders to keep his client from going to prison again.

"I certainly think it is cruel and unusual punishment," Dolan said Thursday.

I am pleased to see from this CNN piece that Anderson's attorney was apparently ready to argue that it would be unconstitutional to send him back to prison now under the Eighth Amendment. I do not think anyone would question a claim that this case is "unusual" and the facts described above certainly lead me to think it also "cruel" to require Anderson's imprisonment now under these circumstances. If a court were not prepared to rule that Anderson's reimprisonment was a violation of the Eighth Amendment, this case might alternatively be another setting for developing jurisprudence on what should be deemed "extraordinary and compelling reasons" warranting a sentence reduction under 18 USC 3582(c)(1)(A)(i).  This case certainly seems extraordinary and compelling to me, and modifying Anderson's federal sentence now certain seems in keeping with the "factors set forth in section 3553(a)." 

March 30, 2019 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, March 28, 2019

"Decarcerating America: The Opportunistic Overlap Between Theory and (Mainly State) Sentencing Practise as a Pathway to Meaningful Reform"

The title of this post is the title of this new paper available via SSRN and authored by Mirko Bagaric and Daniel McCord. Here is its abstract:

Criminals engender no community sympathy and have no political capital. This is part of the reason that the United States has the highest prison population on earth, and by a considerable margin. Incarceration levels grew four-fold over the past forty years. Despite this, America is now experiencing an unprecedented phenomenon whereby many states are now simultaneously implementing measures to reduce prison numbers. The unusual aspect of this is that the response is not coordinated; nor is it consistent in its approach, but the movement is unmistakable.

This ground up approach to reducing prison numbers suffers from the misgiving that it is an ineffective solution to a complex issue. While prison numbers are reducing, it is at a glacial rate. Pursuant to current trends, it would take five decades to reach incarceration levels that are in keeping with historical levels in the United States, and which are in line with prison numbers in most other countries. The massive growth in prison numbers during the latter half of the twentieth century was as a result of a coordinated tough on crime strategy, spawned by the War on Drugs and the implementation of harsh mandatory sanctions. The response to these policy failings must be equally coordinated and systematic in order to be effective.

This Article provides the theoretical and empirical framework that can be used by lawmakers to tap into the community appetite to reduce prison numbers to make changes that are efficient and normatively sound, and which will significantly accelerate the decarceration process. In broad terms, the Article proposes a bifurcated system of sentencing, whereby sexual and serious violent offenders are imprisoned while other offenders (such as those who commit property, immigration and drug offenses) are dealt with by other forms of sanctions. The changes will especially benefit African American and Hispanics, given that they are incarcerated at disproportionately high levels. The empirical evidence also suggests that the proposed reforms will not result in an increased crime rate.

March 28, 2019 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1)

Tuesday, March 26, 2019

Suffolk County DA produces remarkable new prosecutorial polices memo

Around this time last year, as discussed in this post, Philadelphia DA Larry Krasner made public a remarkable five-page memo setting forth an array of remarkable progressive prosecutorial policies.  This week, Suffolk County DA has produced an even more remarkable statement of policies via this remarkable 66-page document titled simply "The Rachel Rollins Policy Memo." The document is not easily summarized, and is worth a complete read. These excerpts from the first section, titled "A New Lens," provides a feel for some of the particulars that follow:

A dramatic shift in thinking around criminal justice is occurring in the United States. Sweeping advances in data science and public health have revealed that decades of punitive incarceration are not effectively preventing recidivism and promoting public safety. A large number of criminal convictions secured by prosecutors nationally are for drug, property, and public order offenses, which are often driven by economic, mental health, and social needs....

Data show that a carceral approach to low-level, non-violent offenses can do more harm than good. A criminal record often presents barriers to education, future income, housing, and many other necessary assets and supports proven to help people thrive and succeed in society.

As a result, jurisdictions across the country are taking a smarter approach to punishment and accountability. Law enforcement agencies and prosecutors’ offices are collecting and analyzing new and varied sources of data, and they are safely beginning to move all but the most serious offenses away from carceral punishment and its downstream collateral harms.

In place of traditional criminal justice system outcomes such as arrest, detention, prosecution, probation, and incarceration, criminal justice practitioners and policymakers are working in collaboration with community partners to develop and implement innovative, evidence-driven diversionary alternatives that data show are more likely to promote safer and healthier communities....

[Recent data] shows that the Suffolk County District Attorney’s Office can file fewer criminal charges, divert more people who need help into services and treatment, send fewer people to jail and prison, all while improving the health and public safety of Suffolk County residents.  I am pleased to announce, effective immediately, the following official guidelines and policies of the Suffolk County District Attorney’s Office.  These guidelines and policies, as with all of our office’s policies and decisions going forward, will be grounded in science and data, modeled after the best known local and national practices, and will build upon and expand the important work and relationships begun under the leadership of my predecessors

Prior related post:

March 26, 2019 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

"The Effects of Voluntary and Presumptive Sentencing Guidelines"

The title of this post is the title of this notable new empirical article authored by Griffin Sims Edwards, Stephen Rushin and Joseph Colquitt.  Here is its abstract:

This Article empirically illustrates that the introduction of voluntary and presumptive sentencing guidelines at the state-level can contribute to statistically significant reductions in sentence length, inter-judge disparities, and racial disparities.

For much of American history, judges had largely unguided discretion to select criminal sentences within statutorily authorized ranges.  But in the mid-to-late twentieth century, states and the federal government began experimenting with sentencing guidelines designed to reign in judicial discretion to ensure that similarly situated offenders received comparable sentences.  Some states have made their guidelines voluntary, while others have made their guidelines presumptive or mandatory, meaning that judges must generally adhere to them unless they can justify a departure.

In order to explore the effects of both voluntary and presumptive sentencing guidelines on judicial behavior, this Article relies on a comprehensive dataset of 221,934 criminal sentences handed down by 355 different judges in Alabama between 2002 and 2015.  This dataset provides a unique opportunity to address this empirical question, in part because of Alabama’s legislative history.  Between 2002 and 2006, Alabama had no sentencing guidelines. In 2006, the state introduced voluntary sentencing guidelines.  Then in 2013, the state made these sentencing guidelines presumptive for some non-violent offenses.

Using a difference-in-difference framework, we find that the introduction of voluntary sentencing guidelines in Alabama coincided with a decrease in average sentence length of around seven months.  When the same guidelines became presumptive, the average sentence length dropped by almost two years.  Further, using a triple difference framework, we show that the adoption of these sentencing guidelines coincided with around eight to twelve-month reductions in race-based sentencing disparities and substantial reductions in inter-judge sentencing disparities across all classes of offenders.  Combined, this data suggests that voluntary and presumptive sentencing guidelines can help states combat inequality in their criminal justice systems while controlling the sizes of their prison populations.

March 26, 2019 in Advisory Sentencing Guidelines, Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, State Sentencing Guidelines | Permalink | Comments (0)

Monday, March 25, 2019

"Theories of Prosecution"

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

For decades, legal commentators sounded the alarm about the tremendous power wielded by prosecutors.  Scholars went so far as to identify uncurbed prosecutorial discretion as the primary source of the criminal justice system’s many flaws.  Over the past two years, however, the conversation shifted.  With the emergence of a new wave of “progressive prosecutors,” scholars increasingly hail broad prosecutorial discretion as a promising mechanism for criminal justice reform.

The abrupt shift from decrying to embracing prosecutorial power highlights a curious void at the center of criminal justice thought.  There is no widely-accepted normative theory of the prosecutorial role.  As a result, prosecutors are increasingly viewed as the criminal justice system’s free agents, deploying the powers of their office as they see fit to serve constituents, public safety or, most broadly, the cause of justice.

This Article uses the rapidly shifting views of prosecutors to explore normative theories of prosecution: what should prosecutors be doing?  It highlights the emptiness of the current “do justice” model, and proposes an alternative “servant-of-the-law” theory of prosecutorial behavior that could place real constraints on prosecutorial excess.  It also explores ways in which a servant-of-the-law model could, perhaps counterintuitively, contribute much-needed theoretical grounding to the progressive prosecution movement.

March 25, 2019 in Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Sunday, March 24, 2019

"What Is Relational Justice?"

The question in the title of this post is the title of this new article authored by Samuel Pillsbury now available via SSRN.  Here is its abstract:

The relational harms of crimes of violence should be met with relational remedies; this is the aim of relational justice.  Sexual and other forms of violence do grave harm to personal relations and relational capacities.  Wrongdoers may, and should, be blamed for acts of disregard for the basic relational good of others.  The final aim of relational justice is the return of those hurt by violence to full belonging in community, and if possible, the return of perpetrators as well.  This will alter predominant views of punishment for serious crimes.

Adopting a relational justice perspective should change how guilty pleas are taken and sentencing hearings are structured.  Relational justice promises better recognition of sexual violence by emphasizing the relational nature of harm and wrongdoing.  Relational justice also provides a new perspective on race and class discrimination in criminal justice through its emphasis on the connectedness of persons and groups in community and basic obligations to look out for the relational good of others.

March 24, 2019 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (3)

Friday, March 22, 2019

Philly DA looking to curtail duration of probation and parole

Many years ago, I heard an academic a lot smarter than me say that the US would never make a serious dent in mass incarceration if and while we still had an even more massive number of persons subject to criminal justice supervision. He suggested that it was unavoidable that some percentage subject to community supervision would end up going back to prison, and so to reduce incarceration levels we had to also reduce supervision levels.

This story is salient this morning because of this notable new press report from Philadelphia headlined "Philly DA Larry Krasner: We took on mass incarceration. Now we’re addressing mass supervision." Here are the basics (with this from the original):

Over his first year in office, Philadelphia District Attorney Larry Krasner rolled out a series of internal policies described as “an effort to end mass incarceration": seeking shorter sentences, diverting low-level offenses from the justice system, and charging crimes at a lower level. 

Now, he’s looking to the next step. “One of our big priorities this year," he said, "is to try to address mass supervision — which, of course, would be both probation and parole.”

Philadelphia counted 42,000 people on county supervision at the end of 2017, or one in 22 adults. Statewide, Pennsylvanians are under correctional control at the second-highest rate in the nation, behind Georgia, and has the highest rate of parolees.

“I think people instinctively believed too much supervision is not enough. But it turns out too much supervision is too much. ... It does tremendous harm, and it costs a fortune,” Krasner said in an interview outlining policies to be announced Thursday. Nationally, about 40 percent of people on probation are reincarcerated, making community supervision a major driver of incarceration. About 40 percent of Philadelphia’s jail population is being held on a detainer for a violation of probation or parole.

His plan? To put his office’s weight behind a push to drastically curtail terms of supervision, which can stretch on for years or even decades, long after prison and jail sentences have been concluded.

Under the new policy, on top of any sentence of incarceration for a felony, assistant district attorneys will seek community supervision terms averaging 18 months, with a ceiling of three years. For misdemeanors, they’ll seek probation or parole terms around six months, not to exceed one year of combined community supervision.

March 22, 2019 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (1)

Sunday, March 17, 2019

"Criminal justice reform must do more than shrink prison populations"

The title of this post is the headline of this recent Hill commentary authored by David Harding, Jeffrey Morenoff and Jessica Wyse. I recommend the full piece, and here are excerpts:

Senator Cory Booker (D-NJ) introduced the Next Step Act on March 7, an expansion of the criminal justice reform started with December’s First Step Act.  We applaud the Next Step Act for essential reforms, including reducing mandatory minimums for nonviolent drug offenses.

Yet, reversing the harms that have been created by decades of mass incarceration and an overly punitive and racially-biased criminal justice system requires more than reversing past policy mistakes.  Reform should go beyond shrinking prisons to providing those whose lives have been impacted by mass incarceration with real opportunities that lead to reintegration into society after release....

[R]eintegration requires more than just determination and work ethic, a key finding of our three-year study of the day-to-day lives of formerly incarcerated individuals. About a third struggle with hunger, homelessness and housing instability.

Chronic physical and mental health problems are also common.  Jobs are scarce for those with criminal records, who disproportionately move into communities like Detroit with high unemployment.  Half of those released from prison return within three years.  The period immediately after release is both a time of great risk and an opportunity to ensure that each person starts with a strong foundation of health and material security.

This “re-entry moment” is one of optimism, commitment to a new life and family support, but also a critical time of struggle with hunger, homelessness, employment and sobriety.  Investments in housing, health and employment services during the re-entry moment can create that foundation.

The Next Step Act contains worthy provisions for removing barriers to employment, including certain occupational licensing barriers for those with criminal records.  Yet our research shows that securing a job is only part of the reason for low rates of employment after release.

Education is essential to improving reintegration into the labor force.  Formerly incarcerated workers experience high rates of job turnover, in part because that is common in the low-skill jobs they find.  To improve employment for those like Randall, we should empower more community colleges to offer prison education with a seamless transition into community programs.

Time in prison can be better used to prepare for release.  Research shows that intensive treatment and prison education programs reduce recidivism, and incarcerated individuals are eager to take part in them.  Yet too many prisoners sit idle during their time in prison or engage in make-work jobs like cleaning and gardening....

Just as the federal government supports local efforts in education, health care and policing, it can support state and local reintegration efforts through funding, technical support and evaluation of promising programs.

Can we afford to support reintegration?  Each federal prisoner costs almost $32,000 a year, and in some states that figure is over $80,000.  The money saved by reducing imprisonment can create a virtuous cycle if it is reinvested in reintegration, which will result in fewer people returning to prison.

March 17, 2019 in Prisons and prisoners, Purposes of Punishment and Sentencing, Race, Class, and Gender, Reentry and community supervision | Permalink | Comments (1)

Thursday, March 14, 2019

Finding lessons in the Manafort sentencing and California's capital moratorium

Brandon Garrett has this great new little piece at The New Republic under the headline "Beyond Hard Time: What the disparate reactions to Manafort's sentence and California's death penalty ban reveal about our broken system."  I recommend the piece in full, and here is a taste:

Is it hypocritical to call for less severe sentences for “regular” criminals while decrying leniency for white-collar defendants?  Those debates are now roiling the pundit world, but as a longtime student of disparities in judicial outcomes, I find the basis of the comparison deeply misleading.  The juxtaposition of the Manafort and Newsom stories should prompt us, rather, to question anew the impulse to frame years in prison as the most appropriate response to our most pressing social problems....

Instead of enacting more draconian sentences, we must invest in white-collar law enforcement the same way we invest in other measures to protect public safety.  Consider this: the Internal Revenue Service has had its budget cut over the past decade to the point where audits have decreased by 42 percent and the number of tax fraud cases the agency brings has been cut by nearly 25 percent.  Under such lax enforcement, tax fraud schemes — of the very sort repeatedly carried out by Paul Manafort — are able to thrive.  And while better white-collar crime enforcement is a key, neglected foundation of public safety, the rationale for more sustained and concerted pursuit of white-collar criminals doesn’t end there.  These offenses also pose much broader hazards to our well-being.  They endanger the national economy — and conspiring with other countries endangers national security — on a far greater scale than the harms wrought by drug possession and street crimes.

The way out of the double standard we apply to punishment is to reject the notion that true justice inheres in strictly hewing to a one-size-fits-all model of criminal sentencing. To begin using law enforcement as a means of meaningful social reform, we need, rather, to consistently apply the same standards of enforcement to all types of crime: police far more, prosecute and punish far less, utilize evidence-based treatment, and ask that violators give back and make the community whole.  Harsh sentences don’t deter crime, but changing the focus of our enforcement systems just might.

March 14, 2019 in Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (4)

Tuesday, March 12, 2019

"Prosecutors and Frequent Utilizers: How Can Prosecutors Better Address the Needs of People Who Frequently Interact with the Criminal Justice and Other Social Systems?"

The title of this post is the title of this new publication from the John Jay College of Criminal Justice's Institute for Innovation in Prosecution emerging from its series on Reimagining the Role of the Prosecutor in the Community. This paper is authored by John Choi, Bob Gualtieri, Jeremy Travis, and Allison Goldberg, and here is part of the start of this document:

Criminal justice involvement is often the culmination of unmet needs, according to an increasing body of research, testimony, and other evidence.  For many individuals who are arrested and charged, a combination of challenges — including mental illness, substance use, poverty, and trauma — can lead to frequent stays in the local jail, emergency room, and homeless shelter.  But very few of these stays lead to adequate care or address long-term needs.  Rather, social systems — criminal justice, health, and housing, for example  — traditionally exist in silos and operate on an “event-by-event basis,” with little coordination between them about how to address the overlapping populations they serve.  For those who cycle between these systems, often referred to as “frequent utilizers,” these stays offer few off-ramps from the criminal justice system or long-term resources.

For jurisdictions, this results in an ineffective use of public funds and an inadequate response to the needs of frequent utilizers and their communities.  While practitioners, policymakers, academics, and people directly impacted have described this cycle for years, innovations in data and technology offer new avenues to better understand and address the needs of those who frequently interact with the criminal justice and other social systems.  Through collaboration between criminal justice stakeholders, service providers, community organizations, and researchers, jurisdictions across the country are harnessing the power of data to develop new strategies to combat this cycle, invest in long-term solutions, and better meet the needs of frequent utilizers and their communities....

This paper grapples with how prosecutors can develop and implement responses that better meet the needs of frequent utilizers in ways that are also consistent with the prosecutor’s broader responsibilities.

March 12, 2019 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Making progressive (but not political) case that the FIRST STEP Act "does much harm"

Marie Gottschalk has this new Jacobin commentary assailing the FIRST STEP Act under the headlined "Did You Really Think Trump Was Going to Help End the Carceral State?".  The piece reiterates at length a variety of the criticisms from the left waged against the risk assessment tools in FIRST STEP while its fate was being debated in Congress. I recommend the whole piece, and here is how it starts and some excerpts:

With much fanfare, President Donald Trump signed the First Step Act into law in December. New Jersey senator and presidential candidate Cory Booker hailed the legislation as a milestone that marked a “meaningful break from decades of failed policies that led to mass incarceration.” Other supporters were more measured, characterizing it as a modest first step to keep the momentum going for criminal justice reform.

But the greatest sins of the First Step Act are not its modesty. The legislation nicks the edges of the carceral state while bolstering disturbing trends in criminal justice reform. CNN commentator Van Jones has claimed that the First Step Act is a “rare clean bill” that “does no harm.” Jones is wrong — it does much harm.

Grounding penal policy in the best evidence-based research is a mantra in criminal justice reform. Yet key provisions of the First Step Act are at odds with leading research on how to enhance public safety while minimizing social and economic costs and maintaining a fair criminal justice system that treats everyone — including people who are imprisoned — with dignity....

Van Jones’s claim that the First Step Act paves the way for federal prisons to “rehabilitate and heal — not just punish” rings hollow. The legislation authorizes miniscule funding for its ambitious aims. It designates $75 million annually for the next five years to develop and implement the new risk and needs assessment system for each person in the federal prison system. In doing so, the measure diverts “limited resources for programming by requiring a complex risk assessment process that would primarily benefit people deemed at a low or minimal risk of recidivating,” according to the Sentencing Project, which ultimately gave its qualified support to the First Step Act....

The fundamental problem is not that people in prison do not want to participate in programs but rather the critical shortage of those programs, let alone quality programs. Currently, 16,000 people are on the wait list for the BOP’s literacy program.

The federal prison system is currently in crisis due to overcrowding and staff cutbacks that the First Step Act will not alleviate. Many federal facilities are operating way above capacity. Nurses, counselors, and even cooks have been drafted to serve as temporary correctional officers because of severe staffing shortages. Last year a bipartisan group of legislators charged the Bureau of Prisons and the Trump administration with ignoring calls in Congress not to eliminate thousands of jobs in the federal prison system.

It is impossible to run effective prison programs when people are locked down in their cells due to staffing shortages, teachers and counselors are filling in for correctional officers, and assaults and violence are on the rise, as has been the case in the federal prisons.

Concerns about the under-funding and under-staffing of federal prisons are well founded, and the headline of this new Marshall Project report does not provide a basis for any new optimism: "First Step Act Comes Up Short in Trump’s 2020 Budget: Supporters worry because law seeks $75 million a year for five years, but president’s plan lists $14 million." But I always find these kinds of criticisms of modest improvements in criminal justice systems quite politically tone deaf given how politicians on both sides of the aisle have shown so little interest in pursuing any reforms at all until fairly recently.

This author rightly notes that "many federal facilities are operating way above capacity," but she leaves out that the federal prison population is lower now than any year while Prez Obama was in office. If Prez Obama was unwilling or unable to pursue all the big changes that progressives would like to see, there need to be even more of a political sea change to make big reforms viable.  Notably, some of the 2020 candidates are talking big about criminal justice reform on the campaign trail (most notable Cory Booker), and it is seems to me that they have the space to advocate more boldly only because the FIRST STEP Act is law and not just a bill awaiting a vote.

Ultimately, this piece serves as yet another reminder that how the FIRST STEP Act is implemented and what follows legislatively and politically will ultimately define whether this first step really is more harmful than helpful.  I am still in the optimistic camp on this front, but this commentary provides the best argument for pessimism.

March 12, 2019 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (0)

Sunday, March 10, 2019

Kansas doctor gets federal LWOP sentence for abusive opioid prescribing

In the wake of Paul Manafort's sentencing, lots of folks are complaining about privileged white defendants getting a different kind of justice than others.  But this federal sentencing story from Kansas, headlined "Wichita doctor who sold pain-med prescriptions for cash sentenced to life in prison," reveals that, in some cases, even some privileged white defendant will be subject to the most severe sentences possible. Here are the details:

A Wichita doctor who illegally distributed addictive prescription drugs has been sentenced to life in federal prison.

Judge J. Thomas Marten said it is “quite clear” that Dr. Steven R. Henson, 57, wrote multiple prescriptions without a legitimate medical purpose and “abused his position of trust as a licensed physician.”

“I have sentenced people to life before,” Marten said in court Friday. “They were people who took guns and shot people.”

The investigation began after a pharmacist raised concerns that a doctor was over-prescribing controlled pain medications. One man died from an overdose after getting a prescription from the doctor.

“I want this case to send a message to physicians and the health care community,” U.S. Attorney Stephen McAllister said in a statement. “Unlawfully distributing opioids and other controlled substances is a federal crime that could end a medical career and send an offender to prison. We are dealing with an epidemic. Nationwide, more than 70,000 Americans died in 2017 from drug overdoses. That is more than all the American casualties during the war in Vietnam.”

Nicholas “Nick” McGovern died in July 2015 after overdosing on a mix of alprazolam and methadone prescribed to him by Henson. It was the count relating to McGovern’s death on which Henson was sentenced to life in prison....

Defense attorney Michael Thompson contended during sentencing that Henson wasn’t writing the prescriptions “to make easy money on the side” because he didn’t need to. He said that the doctor “tried to do what he thought was best for his patients.”

“I only had one goal in life as a physician,” Henson said, “and that was to take excellent care of patients and to increase their functionality,” adding that he tried to serve the under-served in the community and worldwide through mission trips.

But the judge cited Henson’s own testimony during the trial that he raised his fee from $50 to $300 to help pay rent on his medical office.

Federal investigators discovered that Henson would give pain-med prescriptions to patients for $300 in cash at a time, with few questions asked. The investigation began in 2014 with a pharmacist’s concern that a doctor was over-prescribing controlled medications. Prosecutors said Henson falsified patient records during the federal investigation in addition to obstructing investigators....

Henson was found guilty in October of two counts of conspiracy to distribute prescription drugs outside the course of medical practice; 13 counts of unlawfully distributing oxycodone; unlawfully distributing oxycodone, methadone and alprazolam; unlawfully distributing methadone and alprazolam, the use of which resulted in the death of a victim; presenting false patient records to investigators; obstruction of justice; and six counts of money laundering....

Defense attorneys asked for a 20-year prison sentence, saying that Henson led a “model life” outside of this case. “Maybe he wasn’t the best physician,” his attorney said. “He made some very serious mistakes. He wrote these prescriptions not out of greed, malice or ill intent. He was trying to help his patients. That was his goal.”

The judge said he had only met three or four people who he thought were “filled with evil and beyond redemption.”

“In some respects, what I’ve seen from you is worse, in that you don’t seem to understand,” Marten said. “I really don’t think that you get it. I think that in some respects you were numb to what you were doing over time. ... I just wonder if your practices have had any impact on you. It seems as if you’re still thinking, ‘Why am I here, what did I do wrong?’”

Just based on this news report, I think this case could probably sustain a whole book highlighting how this sentencing intersects with our modern opioid and overdose crisis and the broader debates over mass incarceration and equity and the trial penalty in sentencing.

March 10, 2019 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (1)

Thursday, March 07, 2019

Paul Manafort given (only?) 47 months in prison at first federal sentencing

I worried that my prediction this morning that Paul Manafort would get 100 months at his first federal sentencing was a little low.  Turns out, I was way too high: he got only 47 months today.   Here are some details from The Hill:

A federal judge on Thursday sentenced former Trump campaign chairman Paul Manafort to 47 months in prison, well below the amount recommended in sentencing guidelines. The sentence handed down by Judge T.S. Ellis III, a Reagan appointee, was significantly less than the 19.5 to 24 years advised in federal guidelines.

Ellis, in remarks from the bench, described Manafort’s financial crimes as “very serious” but said the guideline range was “not at all appropriate,” and pointed to significantly more-lenient sentences handed down in similar cases.

Manafort, who turns 70 next month, appeared in court in a wheelchair and wore a green jumpsuit. His prison sentence will include time served, meaning nine months will be knocked off for the time he has already spent in jail. As a result, he will be incarcerated for three years and two months.

He was also ordered to pay a $50,000 fine and up to $24 million in restitution.

“You’ve been convicted of serious crimes -- very serious crimes -- by a jury,” Ellis said to a packed courtroom after a lengthy sentencing hearing in federal court in Alexandria, Va., that lasted nearly three hours. However, he added, “I think that sentencing range is excessive. I don’t think that is warranted in this case.”

Manafort’s attorneys earlier this month asked for leniency, citing their client’s age, poor health, low risk of reoffending and assistance in Mueller’s probe. On Thursday, defense attorney Thomas Zehnle pointed to other cases in which defendants received much less prison time for similar crimes.

In remarks shortly before receiving his sentence, Manafort described himself as “humiliated and ashamed” of his behavior and for the pain he had caused his family. He thanked Ellis for a fair trial twice and asked him for compassion. “My life professionally and financially is in shambles,” Manafort said. “To say that I feel humiliated and ashamed would be a gross understatement,” “I intend to turn my notoriety into a positive.”

However, Manafort did not express remorse for his actions -- something Ellis noted before handing down the punishment. “I was surprised that I did not hear you express regret,” said Ellis. “That doesn’t make any difference on the judgment that I am about to make … but I hope you reflect on that.”

Manafort was convicted by a jury in August of eight criminal charges -- five counts of filing false tax returns, two counts of bank fraud and one count of failing to report foreign bank accounts. The financial crimes were uncovered during special counsel Robert Mueller’s Russia investigation. His case in the U.S. District Court for the Eastern District of Virginia marked the first criminal trial in the Mueller probe. But as the defense noted, Manafort’s crimes had nothing to do with Russian election meddling or collusion with the Trump campaign....

To avoid a second criminal trial on separate charges in Washington, D.C., Manafort reached a plea deal with Mueller that involved his full cooperation with federal prosecutors. But the federal judge presiding over his case in D.C. found that he lied to investigators and a federal grand jury about subjects “material” to Mueller’s investigation into Russian meddling and possible coordination between the Trump campaign and the Kremlin.

Manafort was initially scheduled for sentencing in early February, but Ellis postponed the hearing to let Judge Amy Berman Jackson in D.C. determine whether Manafort’s misstatements were unintentional, as he had argued. Ellis said at the time he thought Jackson’s ruling could impact his own sentencing of Manafort.

Sentencing in the D.C. case is scheduled for Wednesday. He faces a maximum of 10 years in prison for conspiracy against the U.S. and conspiracy to obstruct justice by tampering with witnesses. Jackson will decide whether he should serve those years consecutively or concurrently with the ones handed down by Ellis.

Manafort could walk free from federal punishment if President Trump decides to pardon him, but it’s unclear whether the president plans to pursue that avenue. The New York Times recently reported that Manhattan District Attorney Cyrus Vance Jr. is planning to bring state charges against Manafort regardless.

A few quick points in reaction:

1.  Though I do not know exactly when Manafort will get out, I can confidently predict he will not serve exactly 47 months for two reasons: (a) he may get consecutive time at his next sentencing next week (and I suspect he will), and (b) he will surely earn good-time credits and perhaps have others means of getting released earlier as an elderly offender. (Good-time credit alone could get him seven months off possibly resulting in his release before the end of 2021 on the sentence he received today).

2.  I have already seen lots of Twitter commentary complaining this sentence is way too lenient, but I sense many of the complaints really stem from folks rightly seeing a lot of other sentences as way too harsh.  Title 18 USC § 3553(a) calls upon a federal judge to impose a sentence "sufficient, but not greater than necessary, to comply with" traditional sentencing purposes.  I have a hard time developing forceful arguments that a nearly four-year prison term for a nearly 70-year-old man, plus a $50,000 fine and $24 million in restitution, is not sufficient in response to a nonviolent crime.

3.  Roughly a decade ago, when Bernie Madoff got a max sentence of 150 years, I speculated in this post about prosecutors using that high number as a sentencing benchmark in all sorts of other white-collar cases.  Now I am thinking that Paul Manafort has produced a new kind of white-collar sentencing benchmark that now should be of great use to defense attorneys.  Notably, not only was Manafort facing a guideline range of 19.5 to 24 years, but he went to trial and never fully accepted responsibility or even showed remorse.  "If unremorseful Manafort only merited 47 months in prison," so the argument should go from many defense attorneys, "this white-collar defendant should get even less."

March 7, 2019 in Clemency and Pardons, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (17)

"Proportionality Theory in Punishment Philosophy: Fated for the Dustbin of Otiosity?"

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

Proportionality theory’s influence is waning.  It is beset by challenges.  Some, such as difficulties in scaling crime seriousness and punishment severity, and linking them, are primarily analytical and of interest mostly to theorists.  Others, such as trade-offs between proportionality and crime prevention, relate to real world applications. 

The big question is whether the challenges are epiphenomenal and portend displacement of retribution as the most intellectually influential normative frame of reference for thinking about punishment.  My best guess is yes.  The lesser question is whether proportionality theory can provide satisfactory answers to core questions about crime seriousness, punishment severity, and links between them.  Alas, it cannot. 

Proportionality theory does, however, support two injunctions with which most people, citizens, scholars, and professionals alike, would say they agree.  First, no one should be punished more severely than he or she deserves.  Second, all else being equal, people who commit more serious crimes should be punished more severely than people who commit less serious ones, and vice versa.  Converting that principled agreement into real-world policies and practices is not easy.  The post-Enlightment values of fairness, equality, justice, and parsimony, however, that underlie proportionality theory are widely accepted and are likely to remain influential even if punishment paradigms once again shift.  Proportionality theory is likely to be eclipsed but not to disappear.

March 7, 2019 in Purposes of Punishment and Sentencing | Permalink | Comments (0)

Sunday, March 03, 2019

Notable new materials from the Drug Policy Alliance on drug decriminalization in Portugal

There is no shortage of talk about trying to move from a criminalization approach to a public health model in response to drug use and misuse, but there often is a shortage of resources examining efforts to make this move. Thus, I am very pleased to see that the Drug Policy Alliance (DPA) has some terrific new resources on this topic.  This DPA press release, titled "DPA Releases New Briefing Paper & Video, Drug Decriminalization in Portugal: Learning From a Health and Human-Centered Approach," provide a link, background and some details:

The Drug Policy Alliance is releasing a new video and briefing paper examining the human impact and lessons to be drawn from Portugal’s removal of criminal penalties for the possession of drugs for personal use.
 
In March 2018, DPA led a delegation of advocates from 35 racial justice, criminal justice, and harm reduction organizations across the U.S. to Portugal to learn from its health and human-centered approach to drug use.  The group included individuals and organizations representing those hit hardest by the drug war — from those who have been incarcerated for drug offenses to those who have lost loved ones to an overdose. 

Since Portugal enacted drug decriminalization in 2001, the number of people voluntarily entering treatment has increased significantly, overdose deaths and HIV infections among people who use drugs have plummeted, incarceration for drug-related offenses has decreased, and rates of problematic and adolescent drug use has fallen....

By contrast, in the United States, the dominant approach to drug use is criminalization and harsh enforcement, with 1.4 million arrests per year for drug possession for personal use — that makes drug possession the single most arrested offense in the United States. Disproportionately, those arrested are people of color: black people are three times as likely as white people to be arrested for drug possession for personal use.  In addition to possible incarceration, these arrests can create devastating barriers to access to housing, education and employment that systematically oppress entire populations.  Meanwhile, 72,000 people are dying every year of overdose in the United States....
 
While several other countries have had successful experiences with decriminalization — including the Czech Republic, Spain and the Netherlands — Portugal provides the most comprehensive and well-documented example. The success of Portugal’s policy has opened the door for other countries to rethink the practice of criminalizing people who use drugs.  Delegation participants generally agreed that it’s time for the United States to do so as well.
  
“I really would love to see the public health community step up and really demand that the criminal justice system separate themselves,” said Deon Haywood, executive director of New Orleans-based Women With A Vision, who joined DPA’s delegation.  “They need to divest from each other. Addiction should be handled as a public health issue.  Drug use should be handled as a public health issue.  The criminal justice system needs to let go.” 
  
As detailed in a recent DPA report, It’s Time For the U.S. to Decriminalize Drug Use and Possession, there’s an emerging public, political, and scientific consensus that otherwise-law-abiding people should not be arrested simply for possessing an illegal drug for personal use.  A broad range of stakeholders — from the American Public Health Association & World Health Organization to the Movement for Black Lives & NAACP — have taken positions in favor of drug decriminalization.

March 3, 2019 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Sentencing around the world, Who Sentences | Permalink | Comments (0)

Saturday, March 02, 2019

"Mitigations: The Forgotten Side of the Proportionality Principle"

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

In the first change to the Model Penal Code since its promulgation in 1962, the American Law Institute in 2017 set blameworthiness proportionality as the dominant distributive principle for criminal punishment.  Empirical studies suggest that this is in fact the principle that ordinary people use in assessing proper punishment.  Its adoption as the governing distributive principle makes good sense because it promotes not only the classic desert retributivism of moral philosophers but also crime-control utilitarianism, by enhancing the criminal law’s moral credibility with the community and thereby promoting deference, compliance, acquiescence, and internalization of its norms, rather than suffering the resistance and subversion that is provoked by perceived violations of blameworthiness proportionality.

Such a principle has been commonly used as the basis for criticizing improper aggravations, such as the doctrines of felony murder and “three strikes,” but the principle also logically requires recognizing a full range of deserved mitigations, not as a matter of grace or forgiveness but as a matter of entitlement.  And given ordinary people’s nuanced judgments about blameworthiness proportionality, maintaining moral credibility with the community requires that the criminal law adopt an equally nuanced system of mitigations.

Such a nuanced system ideally would include reform of a wide variety of current law doctrines as well as, especially in the absence of such specific reforms, adoption of a general mitigation provision that aims for blameworthiness proportionality in all cases.  Such a general mitigation ought not be limited to cases of “heat of passion” or limited to cases of murder, as today’s liability rules commonly provide.  It ought to be available whenever the offense circumstances and the offender’s situation and capacities meaningfully reduce the offender’s blameworthiness, as long as giving the mitigation does not specially undermine community norms.

March 2, 2019 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Monday, February 25, 2019

Making the conceptual and statistical case for going well beyond the FIRST STEP Act

UZU3HWQVUVE2JH5FXAH56P5MMMKeith Humphreys has this notable new Washington Post piece headlined "The new criminal justice law will modestly shrink prison populations. Should we go further?".   The piece has an important little chart that speaks interestingly to the reality of federal prison populations,and I recommend this piece in full.  Here are excerpts:

The recently enacted First Step Act reduces criminal sentences and promotes rehabilitative programs within the federal justice system. Combined with earlier reforms implemented during the Obama administration, the law should return the federal imprisonment rate back to what it was a generation ago.  But that would still leave the federal prison system with about seven times as many inmates as it had in 1980.  Could the United States ever return to a federal prison population that small, or would that unleash a horrific crime wave?

Questions about how big or small the federal prison system should be are part of the ongoing debate about mass incarceration. But they also have a unique dimension because even though the Constitution assigns most law enforcement powers to states, the federal role in prosecution and incarceration expanded in recent decades (e.g., to include many white-collar crimes, carjacking, DVD piracy, street-corner drug dealing).  As a result, the federal prison system went from accounting for only 7.4 percent of all imprisonment in 1980 to 12.6 percent of all imprisonment in 2016.  Even a decade before the federal prison system reached its peak size, a bipartisan American Bar Association task force argued that the expansion of federal law enforcement and corrections were “inconsistent with the traditional notion that prevention of crime and law enforcement in this country are basically state functions.”

Sometimes it is helpful in public policy to ask questions about first principles: Why should the federal government ever imprison anyone at all?  A common fear — which some opponents of the First Step Act stoked — is that the United States would be overwhelmed with violent crime if not for federal law enforcement and incarceration.  In reality, virtually every murder, rape, assault and battery is charged under state law and results in imprisonment at the state or local level.  The federal prison system holds only 1.8 percent of U.S. inmates serving time for violent crimes.

Federal law enforcement and imprisonment thus do not serve as the nation’s primary bulwark against violence.  But they are important in three defined contexts.

Combating state and local corruption....

Battling criminal organizations that overwhelm state and local law enforcement....

Punishing crimes specifically against the federal government....

All of the above types of crimes are destructive, and those who commit them and are sent to federal prison do not deserve our sympathy.  But it is implausible that the number of and deserved sentence length for such offenses are seven times greater than they were before the federal prison population exploded.  That reality, combined with the fact that the generational cutback in the size of the federal prison system has caused no evident problems, suggest the First Step Act should be considered just that — a first step.  The extremely broad coalition that supported the First Step Act can reasonably aim higher in its next round of proposed reform, returning the federal prison system to its traditional role as an important — but small — part of the U.S. correctional system.

February 25, 2019 in Offense Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Sunday, February 17, 2019

"Paul Manafort should not be sentenced to 20 years in prison"

The title of this post is the headline of this new Hill commentary authored by David Oscar Markus. Here are excerpts:

A jury has spoken on Paul Manafort. He was found guilty, and he should be punished. But his reported sentencing guideline range of 19.5-24.5 years is a good example of how our criminal justice system has lost its way.

Once, when trials were common, our system was the envy of the world. Now, trials almost never occur. (In the 1980s, over 20 percent of cases went to trial while less than 3 percent proceed to trial today). The reason is simple: defendants who go to trial and lose in today’s system now suffer “the trial penalty,” and receive a much more severe — sometimes decades longer — sentence simply for exercising a fundamental Constitutional right to trial.

Even innocent people plead guilty because of the risk/reward analysis that all defendants consider. The risks of going to trial have become way too high. You can plead guilty and get probation or go to jail for a manageable amount of time. But if you go to trial and lose... well, you’ll be crushed.

A jury found Manafort guilty of tax and related offenses, but suggesting that a 20 year sentence is appropriate in this case is just wrong. Twenty years! Manafort is a 69-year old, first-time offender. If the judge sentences him to anywhere in that range, he will most likely leave prison in a box.

Make no mistake, the sentencing range is that high only because Manafort had the audacity to make the government actually prove its case at a trial. Does going to trial warrant a sentence 15 years longer than his co-defendant, Rick Gates? Rick Gates hasn’t been sentenced yet, but his sentencing range is around 5 years. And he will most likely get a sentence much lower than that because of his cooperation. His lawyers will certainly ask for probation as have numerous other cooperators in the Special Counsel’s cases.

Some will respond that Gates should get less time than Manafort because he is less culpable and decided to cooperate. That’s of course true. But that doesn’t mean that Manafort should get 20 years simply because he had the temerity to go to trial.

The truth is that being less culpable becomes a minor factor when the trial penalty comes into play. There are many examples of the least culpable defendant getting the highest sentence solely because of the trial penalty. One such victim of the trial penalty was James Olis, a securities fraud defendant who worked at Dynegy Corporation in Houston, Texas. Olis was sentenced to 24 years in prison after trial, while his boss who testified against him received about a year.

Before trial, Olis had been offered 6 months in exchange for pleading guilty and cooperating. Olis’ lawyer, David Gerger, predicted: “If there’s a 20-year penalty for going to trial, then innocent as well as guilty people will simply decide they have to give up their right to a trial.” He was right. The case was ultimately reversed, and Olis was resentenced to 6 years. Until the reversal, prosecutors in Houston expressly mentioned Olis to any fraud defendant who wouldn’t plead. The line went something like this: “You can plead or risk ending up like Olis.”  Prosecutors in every district have their own “Olis line.”

Some prior related posts:

February 17, 2019 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (2)

Saturday, February 16, 2019

WWJD?: Interesting comments as Wyoming senate rejects effort to repeal the state's dormant death penalty

HutchingsLS05I mentioned in this post a few weeks ago that the Wyoming House of Representatives had voted to repeal the state's death penalty.  This past week the legislative repeal effort died, as reported in this local article headlined "Wyoming Senate defeats death penalty repeal bill."  And a notable quote from a particular senator concerning her reasons for voting against repeal has garnered some extra attention.  Here are some particulars:

The Wyoming Senate defeated a bill Thursday that would have repealed the state’s death penalty, ending the most successful legislative attempt to do away with capital punishment in recent memory. Having passed the House by a safe margin, the bill was swiftly voted down by the Wyoming Senate on its first reading. The final vote was 12-18.

“The vote was different than I expected to see from talking with people beforehand,” said the bill’s sponsor in the Senate, Brian Boner, R-Converse. “There’s a lot of different factors and, at the end of the day, everyone has to make their best determination based on the information they have.”

The death penalty repeal had passed out of the Senate Judiciary Committee on Wednesday by a unanimous vote. Proponents of the bill argued that it would save the state money and create a more humane justice system, an argument that had gained substantial traffic in the House of Representatives....

In the Senate — which has trended more conservative than the House this session — the bill had garnered several unlikely allies. Sen. Bill Landen, a reluctant sponsor of the bill, said that after years of budget cuts and eliminating line item after line item, he could no longer go home and feel good explaining the myriad cuts he’s made to the state budget while defending annual expenses like the death penalty, which costs the state roughly $1 million a year. “Regardless of my personal thoughts — my religion doesn’t believe in the right to kill people — that’s not enough for me,” he said.

Opponents of the bill, meanwhile, argued retaining the death penalty would allow the justice system to offer closure to victims of the most heinous crimes, and could be used as a tool to coerce confessions from the state’s worst perpetrators....

Several senators had other reasons for voting against the bill.  Sen. Anthony Bouchard, R-Cheyenne, said that while the death penalty could be used as an effective tool, it was also a means to keep the state’s justice system from turning into the type seen in other states. He then noted that states like California — in some cases — have allowed inmates to undergo gender reassignment surgery. “I think we’re becoming a lot like other states, and we have something to defend,” he said.  California, however, has not repealed the death penalty.

Sen. Lynn Hutchings, R-Cheyenne, argued that without the death penalty, Jesus Christ would not have been able to die to absolve the sins of mankind, and therefore capital punishment should be maintained. “The greatest man who ever lived died via the death penalty for you and me,” she said. “I’m grateful to him for our future hope because of this. Governments were instituted to execute justice. If it wasn’t for Jesus dying via the death penalty, we would all have no hope.”

Wyoming has not executed a prisoner since 1992. According to Wyoming Department of Corrections Director Bob Lampert, the average death row inmate costs the agency 30 percent more to incarcerate than a general population prisoner, with an average stay of 17 years.

I find it more than a bit amusing that Senator Bouchard seemed to think that voting to keep an effectively dormant costly capital punishment system on the books in Wyoming would help keep the state from becoming more like California, where voters have repeatedly voted to keep an effectively dormant costly capital punishment system on the books.  But, perhaps unsurprisingly, the comment generating the most attention has been Senator Hutchings' suggestion that we can thank (and should preserve) the death penalty for giving us all hope through Jesus Christ.

I am disinclined to make too many jokes about these comments at the risk of being sacrilegious, but I cannot help imagining a new ad campaign for capital punishment: "The death penalty: hope for you and me."  I also cannot help but note that Senator Hutchings has recently garnered negative attention from some other statements on a distinct issue.

February 16, 2019 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (4)

Round three of sentencing in high-profile New Jersey deadly drunk driving case still provides no closure

Last year, I flagged in this post the notable appellate ups and downs surrounding the sentencing and resentencing of actress Amy Locane following her conviction for killing a 60-year-old woman in a 2010 car crash while driving with a blood-alcohol way over the legal limit.  This local media piece reports on the latest sentencing in the case under the headline "‘Melrose Place’ actress sentenced again for fatal drunk driving crash, but free pending another appeal," and the story seems to just get sadder (and less certain) for everyone at each additional legal proceeding.  Here are some details:

For the second time, actress Amy Locane was sentenced to prison for a 2010 drunk driving accident that killed a 60-year-old woman.  How much time she’ll actually serve behind bars, though, is unclear.

The former Hopewell Township resident who once appeared on Melrose Place was sentenced to five years in prison by Somerset County Superior Court Judge Kevin Shanahan Friday afternoon, nearly nine years after the fatal crash.  The judge said if he were imposing the original sentence, he would have sentenced Locane to six years.

Family members of her victim, Helene Seeman, smiled while walking out of court, but left the Somerset County Courthouse in Somerville without giving a statement to media.

James Wronko, Locane’s lawyer, said it was “an extremely thoughtful decision in all respect,” but will appeal on double jeopardy grounds, which was one of his main arguments why the actress shouldn’t return to prison.

Somerset County Assistant Prosecutor Matt Murphy requested a nine-year sentence from Shanahan, who said he was basing it on “the crime, not the criminal.”  Locane was originally convicted of vehicular homicide and assault by auto, which carries up to 15 years in prison, for the death of Helene Seeman and critical injuries to her husband, Fred Seeman.

Fred Seeman and his son, Ford Seeman, both gave emotional testimony, filled with tears, tissues and aggravation. “My mother should still be here, but she’s not because Amy Locane is a horrible human being driven by ego and pride,” he said, reading the notes off his phone while wiping his tears, at times his voice breaking.

Locane whispered “that’s not true” several times under her breath during Ford Seeman’s testimony, which including him saying Locane has made herself a victim and will not accept responsibility. He also lambasted Judge Robert Reed’s initial, lenient sentence, calling it a “mockery of the justice process” and referred to Locane’s request for a short sentence to care for her two young children, who she called collateral damage as “pathetic.”...

Locane stood to speak after the Seemans concluded their testimony. Ford Seeman left the room. “There is not a day that has gone by that I have no thought of the pain that my actions caused the Seeman family and of course Helene Seeman,” the 47-year-old said. “I made a mistake. I have done everything that I can do to not be that person who does what I did nine years ago.”

She also noted she regularly speaks at schools about the dangers of drinking and driving, and is committed to sobriety through Alcoholics Anonymous.

The actress, who appeared in the movie “Cry-Baby” with Johnny Depp, and other Hollywood pictures, was driving home from a party on June 27, 2010 when she crash into the Seemans, who were turning into their driveway. Locane’s blood alcohol content was three times the legal limit.

He first sentence, three years in prison handed down by Judge Robert Reed in February 2013, drew immediate criticism for its apparent lenience. She served two-and-a-half-years at Edna Mahan Correctional Facility in Clinton Township and was paroled in June 2015. It’s unclear if Locane will receive credit now for the time she was incarcerated.

In 2016, an appeals court ruled the sentence was not harsh enough. Locane returned to court for a second sentencing in January 2017, where Judge Reed said he erred in not sentencing her to six more months. However, he declined to give Locane more prison time.

In March 2018, an appellate court ruled again the sentence was “a hair’s breath away from illegal." The decision criticized Reed’s lack of explanation for the sentence, and asked another judge to decide her Locane’s fate at a third re-sentencing.

Fred Seeman cried and yelled during his testimony. He argued a light sentence would not deter New Jerseyans from drinking and driving, and the trauma still affects his youngest son, who saw his mother dead on their front lawn. “I cry at night, for my son Curtis who is not with us today. It hurts me and pains me,” said the 69-year-old, who suffered broken ribs and a collapsed lung in the crash, and has a hole in his diaphragm as a result of blunt force trauma from the accident....

Locane will serve 85 percent of her new sentence under the No Early Release Act and was released on her own recognizance pending an appeal.

In 2017, the Seemans were awarded a $4.8 million dollar settlement in a civil lawsuit. Locane paid $1.5 million, while Rachel and Carlos Sagebien — hosts of the party where Locane left drunk — paid $3.3 million.

Prior related post:

February 16, 2019 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, February 14, 2019

"Justice Scalia's Eighth Amendment Jurisprudence: The Failure of Sake-of-Argument Originalism"

The title of this post is the title of this new paper by Craig Lerner now available via SSRN. Here is its abstract:

How is an originalist judge in the common law tradition to reconcile the competing demands of the Constitution’s original meaning and an accumulating body of nonoriginalist precedents?  This Article explores the dilemma of constitutional originalism through a comprehensive review of Justice Scalia’s Eighth Amendment jurisprudence.  In this legal context the dilemma is infused with a moral dimension.  Many punishment practices common in 1791 are widely considered barbaric today.  When confronted with the choice between the Eighth Amendment’s original meaning and a clearly erroneous precedent that better aligns the Constitution with the moral tenor of the times, which is an originalist judge to choose?

In an essay published soon after joining the Supreme Court, Justice Scalia outlined an answer to this question.  He anticipated that his Eighth Amendment opinions would be framed as arguments in the alternative — first, the Constitution, properly understood, did not foreclose a punishment; and, in the alternative, even if nonorginalist precedents were followed for the sake of argument, the result would be the same, because there was “inadequate indication that any evolution in social attitudes has occurred.”  Almost all of his Eighth Amendment opinions proved to be of this character. 

As demonstrated in this Article, Justice Scalia’s hopeful expectation that he could achieve orginalist results through such a strategy was disappointed.  One problem is that the strategy presumes that there has been no meaningful “evolution in social attitudes” with respect to punishment since 1791.  The deeper problem is that it is not enough for the community’s “social attitudes” to remain durable.  The relevant question is whether the moral sentiments of the legal elites who ascertain these “social attitudes” remain durable.  In one of his final Eighth Amendment opinions, Justice Scalia conceded the defeat of sake-of-argument originalism.  He intimated a willingness to pursue a more heroic originalist agenda, potentially displacing mountains of nonoriginalist precedent.  This Article highlights the tension an originalist judge faces, more than two centuries after the Constitution’s ratification, between a principled adherence to original meaning, which can appear revolutionary, and a humbler originalism, which can appear opportunistic.

February 14, 2019 in Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, February 12, 2019

"The case for capping all prison sentences at 20 years"

The title of this post is the title of this very lengthy new piece by German Lopez at Vox.  I recommend the piece in full, and here are excerpts from the first part of the article:

America puts more people in jail and prison than any other country in the world.  Although the country has managed to slightly reduce its prison population in recent years, mass incarceration remains a fact of the US criminal justice system.

It’s time for a radical idea that could really begin to reverse mass incarceration: capping all prison sentences at no more than 20 years.  It may sound like an extreme, even dangerous, proposal, but there’s good reason to believe it would help reduce the prison population without making America any less safe....

Looking at the length of our prison sentences is one approach to reverse mass incarceration.  Empirical research has consistently found that locking up people for very long periods of time does little to nothing to combat crime, and may actually lead to more crime as people spend more time in prison — missing big life opportunities for legitimate careers, and being incarcerated with others who have ties to the criminal world.

There’s also good reason to believe that 20 years is a good cutoff for a maximum.  Studies have found that people almost always age out of crime, particularly by their late 30s and 40s.  If a person is locked up for a robbery or murder at 21, there’s a very good chance that he won’t commit that same crime when he gets out at 41.

Other countries show this can work. European nations tend to have shorter prison sentences than the US, and certainly fewer people in prison, along with roughly equal or lower violent crime rates.  Norway in particular caps the great majority of prison sentences at 21 years — and its violent crime and reoffending rates are lower than the US’s.  (The cap does have some exceptions, as I’ll explain later.)

A cap on prison sentences wouldn’t on its own end mass incarceration.  But at least tens of thousands of people in prison would benefit now — if the change were applied retroactively — and untold numbers more would benefit in the future if it were adopted by states and the federal government.

I’m not naive; I know there’s a very, very low chance that this policy will actually be enacted. And I know there are some difficult questions we need to confront if such a policy were ever put in place.  But I think pushing for something like this is a good idea anyway.  It forces a conversation about what prisons are for: Are they for keeping the public safe? Rehabilitating inmates?  Purely for revenge?  If our answer as a society is the first two, but not the latter, then a cap is something we should consider.

By beginning these kinds of conversations, we can try to get at the root cultural and social forces that enabled and encouraged mass incarceration to begin with.  Only by doing that can we start to really unravel a criminal justice system that’s turned into one of the world’s most punitive.

February 12, 2019 in Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (3)

Monday, February 11, 2019

Making sure we do not lose sight of the "American epidemic of overly long prison sentences"

Late last week, Judge Morris Hoffman penned this notable Wall Street Journal essay headlined "A Judge on the Injustice of America’s Extreme Prison Sentences: The duty to punish criminals comes with an obligation not to punish them more than they deserve." I recommend the piece in full, and here are excerpts:

Many people have celebrated Congress’s recent passage of the First Step Act, which, among other things, retroactively reduced penalties for some federal drug offenses.  But it did very little to address the American epidemic of overly long prison sentences.  Today, we lead the Western world in average length of prison sentences, at 63 months. According to the Justice Policy Institute, Canada’s average is four months, Finland’s 10, Germany’s 12 and even rugged, individualistic Australia’s is just 36.

These numbers are even more striking considering that the modern prison is an American invention and the average sentence started out at a few months, not years.  The Quakers invented prisons in the late 1700s as a more humane alternative to death or banishment, then the punishments for virtually all serious crimes.  But the penitentiary wasn’t intended to be a criminal warehouse.  Criminals were expected to work, pray and think about their crimes — to be penitent about them — in a kind of moral rehabilitation.

Virtually every new American state that adopted this form of punishment soon passed laws requiring confinement to include hard labor, but for short durations.  A 1785 New York statute was typical: It limited all nonhomicide prison sentences to six months.  Alexis de Tocqueville, whose visits to America began with a tour of U.S. prisons in 1831, wrote, “In no country is criminal justice administered with more mildness than in the United States.”  But over the next 150 years, America went from mildest punisher to harshest.  The reasons for this shift are complicated, but they include a dash of progressive naiveté, a bit of blind faith in the power of deterrence and large dollops of political neglect.....

[T]the relationship between longer sentences and falling crime rates is complex and nonlinear.  At some point, crime rates become unresponsive to increased punishment. If we sentenced aggravated robbers to 70 years, then increased that to 80, not even the most committed believer in deterrence would expect those additional 10 years to further reduce robberies.  The enormous leverage of prosecutors in plea bargaining is undoubtedly a factor in the explosion of sentence lengths.  But the real problem is the sentence ranges created by legislatures, not the particular sentences within those ranges imposed by judges or driven by plea bargains.

Don’t get me wrong. I’m not one of those apologists who thinks that criminal law is fundamentally immoral or that a bad environment excuses bad actions. I am what we in the business call a “retributivist.” I don’t punish people primarily to cure them or to deter others. I punish them mainly because those who intentionally harm others deserve to be punished, in no small part to earn their way back into the social fold.

But if retribution offers a moral justification for punishment, it also imposes limits. W e have a duty to punish wrongdoers, but that duty comes with the obligation not to punish criminals more than they deserve. Much of our criminal-justice system has lost that moral grounding, and our use of prisons has become extreme.  We dishonor victims of crimes that merit severe punishment when we sentence less serious crimes just as harshly.  What do I tell the surviving relatives of a victim of second-degree murder when they see her killer sentenced to less time than someone who robbed a crowded restaurant?...

It won’t be easy. No one gets elected by calling for shorter prison sentences.  Critics will warn that releasing prisoners earlier is unsafe, and in some cases it would be.  But as a policy matter, there is simply no evidence that, say, a 70-year sentence for aggravated robbery does more than a 30-year one to deter other potential robbers.  Moreover, violent crime rates decrease rapidly as criminals age out of their 20s.  Releasing a middle-aged prisoner earlier does pose more risk, of course, than keeping him behind bars, but that marginal danger will be very small indeed when we are comparing 30- and 70-year sentences....

As state and federal legislators ponder their next moves after the First Step Act, they should consider lowering historically extreme sentences for some offenses, including violent ones.  It would not only be sensible public policy but would also help return our criminal law to its moral roots.

February 11, 2019 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (2)

Thursday, February 07, 2019

Updated versions of great reads from the "Square One Project" on criminal justice policy and reform

In this post from last fall, I noted the new Square One Project working to "reimagine justice" and conducting executive sessions and roundtables on the future of justice policy. In that post, I noted some early draft of interesting papers from the project, and yesterday I got an email pointing me to this page with links to these now finalized papers:

Bruce Western, The Challenge of Criminal Justice Reform

After three decades of growth in the U.S. incarceration rate, we have entered a period of criminal justice reform.  However, efforts to reverse mass incarceration need to address the social conditions of poverty, racial inequality, and violence in which punitive criminal justice policy has expanded.  Efforts that aim only to reduce prison populations, or neglect the harsh socioeconomic conditions in poor communities of color, will fail to sustainably reduce the burdens of over-imprisonment.  A new, socially-integrative, vision of community health and economic flourishing is the best way to respond to the problem of violence in contexts of poverty and racial injustice.

Arthur Rizer, A Call for New Criminal Justice Values

The U.S. criminal justice system expresses our nation’s values, for better or worse.  For most of the early and middle 20th century, rehabilitation guided criminal justice policies, but in the 1970s and 1980s, notions of retribution, deterrence, and incapacitation emerged as replacements and signaled a dramatic shift in criminal justice policy.  Now, as we enter an era of criminal justice reform, it is time for a new set of values.  Parsimony in criminal punishment, which seeks the least coercive response, can undo the damage of overreaching incarceration.  Parsimony in punishment serves the more fundamental values of liberty and limited government, which embody a distinctively American commitment to human freedom.  While our history has clearly disappointed the values of parsimony, liberty, and limited government, the oncoming era of criminal justice reform opens the door to new and exciting possibilities.

February 7, 2019 in Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (0)

Wednesday, February 06, 2019

"Neuroscience and Punishment: From Theory to Practice"

The title of this post is the title of this notable new paper appearing in the journal Neuroethics and authored by Allan McCay and Jeanette Kennett.  Here is its abstract:

In a 2004 paper, Greene and Cohen predicted that neuroscience would revolutionise criminal justice by presenting a mechanistic view of human agency that would change people’s intuitions about retributive punishment.  According to their theory, this change in intuitions would in turn lead to the demise of retributivism within criminal justice systems.  Their influential paper has been challenged, most notably by Morse, who has argued that it is unlikely that there will be major changes to criminal justice systems in response to neuroscience.

In this paper we commence a tentative empirical enquiry into the claims of these theorists, focusing on Australian criminal justice.  Our analysis of Australian cases is not supportive of claims about the demise of retributive justice, and instead suggests the possibility that neuroscience may be used by the courts to calibrate retributive desert.  It is thus more consistent with the predictive claims of Morse than of Greene and Cohen.  We also consider evidence derived from interviews with judges, and this leads us to consider the possibility of a backlash against evidence of brain impairment.  Finally we note that change in penal aims may be occurring that is unrelated to developments in neuroscience. 

February 6, 2019 in Offender Characteristics, Purposes of Punishment and Sentencing, Sentencing around the world | Permalink | Comments (0)

Monday, February 04, 2019

"18 U.S.C. § 3553(a)’s Undervalued Sentencing Command: Providing a Federal Criminal Defendant with Rehabilitation, Training, and Treatment in 'the Most Effective Manner'"

The title of this post is the title of this notable new (and very timely) article authored by Erica Zunkel now available in the Notre Dame Journal of International & Comparative Law.  Here is its abstract:

The vast majority of federal criminal defendants are sentenced to prison, and non-incarceration sentences have become vanishingly small.  During the sentencing process, federal district court judges are required to consider what sentence will provide the defendant with necessary rehabilitation and treatment in the most effective manner pursuant to 18 U.S.C. § 3553(a)(2)(d).  Courts regularly undervalue, ignore, or even violate this statutory command.  Some courts seem to believe that the Bureau of Prisons can provide adequate rehabilitation and treatment and do not explain how this squares with what the statute requires.  Other courts barely engage with the issue.  Only a minority of courts take the statutory command seriously. 

This is problematic because evidence shows that the Bureau of Prisons is ill-equipped to provide defendants with the most effective rehabilitation and treatment, particularly medical care and mental health care.  This Article concludes that the courts should take § 3553(a)(2)(D)’s mandate much more seriously in sentencing federal criminal defendants. Likewise, defense attorneys should engage in vigorous advocacy at sentencing to ensure that courts understand the Bureau of Prisons’ severe limitations in providing effective, let alone adequate, rehabilitation and treatment.

February 4, 2019 in Booker in district courts, Federal Sentencing Guidelines, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Highlighting how much punishment comes with the misdemeanor process

97804650938091LawProf Alexandra Natapoff has a terrific new book titled “Punishment Without Crime: How Our Massive Misdemeanor System Traps the Innocent and Makes America More Unequal,” and you can read part of the book's introduction here at the publisher's website. And over the weekend the New York Post published this commentary penned by Natapoff under the headlined "How a simple misdemeanor could land you in jail for months." Here are excerpts:

Just before Christmas, Janice Dotson-Stephens died in a San Antonio jail.  The 61-year-old grandmother had been arrested for trespassing, a class B misdemeanor in Texas. She couldn’t afford the $300 bail, and a mere $30 payment to a bail bondsman would have let her out.  She stayed in jail for nearly five months, waiting for her case to be handled, before she died. Her family has sued, and an independent agency is currently investigating the cause of her death. This is how the American misdemeanor system quietly and carelessly ruins millions of lives.

Dotson-Stephens was a victim of a vast misdemeanor machinery that routinely and thoughtlessly locks up millions of people every year.  America is already infamous for mass incarceration — with 1.5 million state and federal prisoners, we put more people in prison than any other country on the planet.  But nearly 11 million people pass through over 3,000 US jails every year, according to a 2016 report by the Department of Justice. On any given day, there are approximately 700,000 people in jail.  One-quarter of them are there for misdemeanor offenses; the majority of them, like Dotson-Stephens, have not been convicted of anything and are therefore presumed innocent.

Given the minor nature of most misdemeanors, it is shocking how often they send people to jail.  Amazingly, people routinely get locked up when they are arrested for petty offenses even if they could not be sentenced to jail for the offense itself.

Albert Florence was arrested in New Jersey for failing to pay an outstanding civil fine, a transgression for which he could not have been incarcerated.  Nevertheless, he spent six days in jail where officials strip-searched him twice, inspected his genitals and subjected him to a delousing shower.  Turns out it was a mistake — Mr. Florence had paid the fine years before but the statewide database had not been updated.  Was this legal?  It was.  When the US Supreme Court heard Florence’s case in October 2011 in Florence v. Board of Chosen Freeholders of County of Burlington, it decided in April 2012 that the strip searches were constitutional.

The most common punishment for a misdemeanor conviction is probation and a fine, but jail remains routine.  In Richmond, Virginia, Robert Taylor, an indigent veteran, was sentenced to 20 days in jail for driving on a license that been suspended multiple times because he could not afford to pay traffic court fines.  In Beaufort County, South Carolina, a homeless man spent 30 days in jail and was sentenced to time served for the charge of trespassing at a McDonald’s.

Poverty isn’t a crime, but the misdemeanor machinery often treats it like one, incarcerating people solely because they cannot afford to pay a fine or fee.  In Augusta, Georgia, Tom Barrett was homeless, living off food stamps and the money he earned from selling his blood plasma.  He was caught stealing a $2 can of beer.  He couldn’t afford the $50 fee to apply for a public defender, so he represented himself, pleaded guilty and was placed on probation.  As part of that probation, he was required to pay over $400 in fines and fees every month.  When he couldn’t, he was sentenced to 12 months in jail. “I should not have taken that beer.  I was dead wrong,” says Barrett. “But to spend 12 months in jail … it didn’t seem right.”...

The misdemeanor system is enormous.  Thirteen million misdemeanor cases are filed every year — that’s 80 percent of state criminal dockets. This is how the American criminal system works most of the time for most people.  And its tendency to incarcerate affects millions of families — over 400,000 children have a parent in jail....

The misdemeanor phenomenon has been largely overlooked, overshadowed by the sheer harshness of its felony counterpart.  And some of that is fair enough.  Thirty-year drug sentences, solitary confinement and the death penalty do indeed make misdemeanor punishments seem petty.  But make no mistake, they are not lenient.  People are being stripped of their liberty and their money. If we really want to roll back mass incarceration and improve our criminal system, we need to shrink the massive misdemeanor pipeline and break its expensive and destructive habit of putting people in jail with so little justification.

February 4, 2019 in Collateral consequences, Offense Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (1)

Monday, January 28, 2019

"Are Collateral Consequences Deserved?"

The question in the title of this post is the title of this notable new paper authored by Brian Murray now available via SSRN. Here is its abstract:

While bipartisan passage of the First Step Act and state reforms like it will lead to changes in sentencing and release practices, they do little to combat the collateral consequences that ex-offenders face upon release.  Because collateral consequences involve the state infliction of serious harm on those who have been convicted or simply arrested, their existence requires justification.  Many scholars classify them as punishment, but modern courts generally diverge, deferring to legislative labels that classify them as civil, regulatory measures.  This label avoids having to address existing constitutional and legal constraints on punishment.  This Article argues that although collateral consequences occur outside of the formal boundaries of the criminal system, their roots stem from utilitarian justifications for criminal punishment, such as incapacitation.  Legislative justifications relating to creating and reforming collateral consequences and judicial doctrine confirms that decision-makers are operating on utilitarian terrain while cognizant of functional concerns in the criminal system.  Unfortunately, these philosophical roots inhibit broad reform efforts relating to collateral consequences because public-safety and risk prevention rationales chase utility.  The result is extra punishment run amok and in desperate need of constraints.

This Article pivots to a novel, but perhaps counterintuitive, approach to reforming collateral consequences: subjecting them to the constraints of retributivism by first asking whether they are deserved.  Retributivist constraints, emphasizing dignity and autonomy, blameworthiness, proportionality, a concern for restoration, and the obligations and duties of the authority tasked with inflicting punishment, suggest many collateral consequences are overly punitive and disruptive of social order.  Viewing collateral disabilities in this fashion aligns with earlier Supreme Court precedent and accounts for retributivist constraints that already exist in present day sentencing codes.  Proponents of rolling back collateral consequences should consider how utilizing desert principles as a constraint on punishment can alleviate the effects of collateral consequences on ex-offenders.

January 28, 2019 in Collateral consequences, Criminal Sentences Alternatives, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Saturday, January 26, 2019

"Limiting Retributivism and Individual Prevention"

The title of this post is the title of this notable new book chapter authored by Christopher Slobogin now available via SSRN.  Here is its abstract:

Limiting retributivism, also known as modified desert theory, is a “mixed theory” of punishment that posits that retributive principles should set the outer bounds of a sentence, while the precise nature and duration of disposition should be designed to implement one or more independent criminal justice system goals.  This chapter focuses on a particular version of limiting retributivism, which it calls “preventive justice.”  A preventive justice regime adopts sentence ranges consistent with the offender’s desert and then relies on expert parole boards to determine the nature and duration of sentence within this range based on consideration of individual prevention goals (i.e., incapacitation, specific deterrence and rehabilitation).

The analysis of this chapter suggests that a system of relatively wide sentence ranges derived from retributive principles, in combination with short minimum sentences that are enhanced under limited circumstances by statistically-driven risk assessment and management, can alleviate many of the inherent tensions between desert and prevention, between deontology and political reality, and between the desire for community input and the allure of expertise.  If done properly, it should also significantly reduce prison populations.

January 26, 2019 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Sunday, January 20, 2019

"Sharks and Minnows in the War on Drugs: A Study of Quantity, Race and Drug Type in Drug Arrests"

The title of this post is the title of this important new article authored by Joseph Kennedy, Isaac Unah and Kasi Wahlers now available via SSRN. Here is its abstract:

Conventional wisdom has it that in the war on drugs you have to catch small fish in order to catch big fish.  But what if the vast majority of drug arrests were for very small fish, and disproportionately brown ones at that?  This Article is the first to conclusively establish that the war on drugs is being waged primarily against those possessing or selling minuscule amounts of drugs.  Two out of three drug offenders arrested by non-federal law enforcement possess or sell a gram or less at the time of arrest.  Furthermore, about 40% of arrests for hard drugs such as cocaine, heroin, and meth/amphetamine are for trace amounts — a quarter of a gram or less. These findings are the result of a first of its kind study of drug arrest data from National Incident-Based Reporting System (“NIBRS”) that analyzed all drug arrests reported for the years 2004, 2008, and 2012.  The resulting data set contained over a million cases, and useable quantity data was found in over 700,000 cases, making this study the most comprehensive study of drug arrest quantity undertaken to date by orders of magnitude.

This Article also challenges assumptions that the disproportionate representation of offenders of color among those incarcerated for drug offenses results from their greater involvement in selling larger quantities of drugs.  Offenders of color are by and large not more serious offenders in terms of quantity.  They just possess and sell drugs that are the most frequent target of arrest.  Blacks are disproportionately arrested overall because we arrest more for “Black drugs” than for “White drugs.”  Racial disparities might vanish or reverse if we were to make as many meth/amphetamine and heroin arrests as crack cocaine arrests.

After confirming that felony liability is typically triggered for selling — and in the case of hard drugs even possessing — such minuscule amounts, this Article argues that such offenses should be downgraded to misdemeanors for political, criminological and philosophical reasons.  Such liability is doubly unjust in light of the racial disparities revealed in the patterns of arrest.  A drug war premised on hunting great white sharks instead scoops up mostly minnows, and disproportionately ones of color. Felony liability for the two-thirds of offenders arrested for these gram-or-less amounts should be eliminated.

January 20, 2019 in Drug Offense Sentencing, Offense Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (0)

Saturday, January 19, 2019

"Positive Sanctions versus Imprisonment"

The title of this post is the title of this notable new article authored by Murat Mungan.  Here is its abstract:

This article considers the possibility of simultaneously reducing crime, prison sentences, and the tax burden of financing the criminal justice system by introducing positive sanctions, which are benefits conferred to individuals who refrain from committing crime.  Specifically, it proposes a procedure wherein a part of the imprisonment budget is re-directed towards financing positive sanctions. 

The feasibility of reducing crime, sentences, and taxes through such reallocations depends on how effectively the marginal imprisonment sentence reduces crime, the crime rate, the effectiveness of positive sanctions, and how accurately the government can direct positive sanctions towards individuals who are most responsive to such policies.  The article then highlights an advantage of positive sanctions over imprisonment in deterring criminal behavior: positive sanctions operate by transferring or creating wealth, whereas imprisonment operates by destroying wealth.  Thus, the conditions under which positive sanctions are optimal are broader than those under which they can be used to jointly reduce crime, sentences, and taxes.

The analysis reveals that when the budget for the criminal justice system is exogenously given, it is optimal to use positive sanctions when the imprisonment elasticity of deterrence is small, which is a condition that is consistent with the empirical literature.  When the budget for the criminal justice system is endogenously determined, it is optimal to use positive sanctions as long as the marginal cost of public funds is not high.

January 19, 2019 in Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (0)

Wednesday, January 16, 2019

"Mens Rea Reform and Its Discontents"

The title of this post is the title of this great-looking new article authored by Benjamin Levin now available via SSRN. Here is its abstract:

This Article examines the debates over recent proposals for “mens rea reform.”  The substantive criminal law has expanded dramatically, and legislators have criminalized a great deal of common conduct.  Often, new criminal laws do not require that defendants know they are acting unlawfully.  Mens rea reform proposals seek to address the problems of overcriminalization and unintentional offending by increasing the burden on prosecutors to prove a defendant’s culpable mental state.  These proposals have been a staple of conservative-backed bills on criminal justice reform. Many on the left remain skeptical of mens rea reform and view it as a deregulatory vehicle purely designed to protect defendants accused of financial or environmental crimes.

Rather than advocating for or against such proposals, this Article argues that opposition to mens rea reform should trouble scholars and activists who are broadly committed to criminal justice reform.  Specifically, I argue that the opposition demonstrates three particular pathologies of the U.S. criminal system and U.S. criminal justice reform: (1) an overreliance on criminal law as a vehicle for addressing social problems; (2) the instinct to equalize or level up — when faced with inequality, many commentators frequently argue that the privileged defendant should be treated as poorly as the disadvantaged defendant, rather than using the privileged defendant’s treatment as a model; and (3) the temptation for mass incarceration critics to make exceptions and support harsh treatment for particularly unsympathetic defendants.  Ultimately, this Article argues that achieving sweeping and transformative criminal justice reform will require overcoming the three pathologies.

January 16, 2019 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (0)

Sunday, January 13, 2019

"Mandatory minimum sentencing policies and cocaine use in the U.S., 1985–2013"

The title of this post is the title of this notable new research published in the journal BMC International Health and Human Rights and authored by Lauryn Saxe Walker and Briana Mezuk. Here is its abstract:

Background

As of May 2017, the United States federal government renewed its prioritization for the enforcement of mandatory minimum sentences for illicit drug offenses.  While the effect of such policies on racial disparities in incarceration is well-documented, less is known about the extent to which these laws are associated with decreased drug use.  This study aims to identify changes in cocaine use associated with mandatory minimum sentencing policies by examining differential sentences for powder and crack cocaine set by the Anti-Drug Abuse Act (ADAA) (100:1) and the Fair Sentencing Act (FSA), which reduced the disparate sentencing to 18:1.

Methods

Using data from National Survey on Drug Use and Health, we examined past-year cocaine use before and after implementation of the ADAA (1985–1990, N = 21,296) and FSA (2009–2013, N = 130,574). We used weighted logistic regressions and Z-tests across models to identify differential change in use between crack and powder cocaine.  Prescription drug misuse, or use outside prescribed indication or dose, was modeled as a negative control to identify underlying drug trends not related to sentencing policies.

Results

Despite harsher ADAA penalties for crack compared to powder cocaine, there was no decrease in crack use following implementation of sentencing policies (odds ratio (OR): 0.72, p = 0.13), although both powder cocaine use and misuse of prescription drugs (the negative control) decreased (OR: 0.59, p < 0.01; OR: 0.42, p < 0.01 respectively).  Furthermore, there was no change in crack use following the FSA, but powder cocaine use decreased, despite no changes to powder cocaine sentences (OR: 0.81, p = 0.02), suggesting that drug use is driven by factors not associated with sentencing policy.

Conclusions

Despite harsher penalties for crack versus powder cocaine, crack use declined less than powder cocaine and even less than drugs not included in sentencing policies.  These findings suggest that mandatory minimum sentencing may not be an effective method of deterring cocaine use.

January 13, 2019 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, New USSC crack guidelines and report, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Wednesday, January 09, 2019

"The Accuracy, Equity, and Jurisprudence of Criminal Risk Assessment"

The title of this post is the title of this notable and timely new paper on SSRN authored by Sharad Goel, Ravi Shroff, Jennifer Skeem and Christopher Slobogin.  Here is its abstract:

Jurisdictions across the country, including the federal government through its recently enacted First Step Act, have begun using statistical algorithms (also called “instruments”) to help determine an arrestee’s or an offender’s risk of reoffending.  These risk assessment instruments (RAIs) might be used at a number of points in the criminal process, including at the front-end by judges to impose a sentence after conviction, at the back-end by parole boards to make decisions about prison release, or in between these two points by correctional authorities determining the optimal security and service arrangements for an offender.  At the pretrial stage, RAIs might come into play at the time of the bail or pretrial detention determination by a judge, which usually takes place shortly after arrest.  The increased use of RAIs in the criminal justice system has given rise to several criticisms.  RAIs are said to be no more accurate than clinical assessments, racially biased, lacking in transparency and, because of their quantitative nature, dehumanizing.  This chapter critically examines a number of these concerns. It also highlights how the law has, and should, respond to these issues.

January 9, 2019 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Tuesday, January 08, 2019

Spotlighting criminal-justice debt and its profound impact on the poorest Americans

The New York Times magazine has this lengthy new article about criminal justice debt under this full headline: "How Cities Make Money by Fining the Poor: In many parts of America, like Corinth, Miss., judges are locking up defendants who can’t pay — sometimes for months at a time." I recommend the piece in full, and here is a snippet:

No government agency comprehensively tracks the extent of criminal-justice debt owed by poor defendants, but experts estimate that those fines and fees total tens of billions of dollars.  That number is likely to grow in coming years, and significantly: National Public Radio, in a survey conducted with the Brennan Center for Justice and the National Center for State Courts, found that 48 states increased their civil and criminal court fees from 2010 to 2014.  And because wealthy and middle-class Americans can typically afford either the initial fee or the services of an attorney, it will be the poor who shoulder the bulk of the burden....

In areas hit by recession or falling tax revenue, fines and fees help pay the bills.  (The costs of housing and feeding inmates can be subsidized by the state.)  As the Fines and Fees Justice Center, an advocacy organization based in New York, has documented, financial penalties on the poor are now a leading source of revenue for municipalities around the country.  In Alabama, for example, the Southern Poverty Law Center took up the case of a woman who was jailed for missing a court date related to an unpaid utility bill.  In Oregon, courts have issued hefty fines to the parents of truant schoolchildren. Many counties around the country engage in civil forfeiture, the seizure of vehicles and cash from people suspected (but not necessarily proven in court) of having broken the law.  In Louisiana, pretrial diversion laws empower the police to offer traffic offenders a choice: Pay up quickly, and the ticket won’t go on your record; fight the ticket in court, and you’ll face additional fees.

“What we’ve seen in our research is that the mechanisms vary, depending on the region,” says Joanna Weiss, co-director of the Fines and Fees Justice Center.  “But they have one thing in common: They use the justice system to wring revenue out of the poorest Americans — the people who can afford it the least.”  Aside from taxes, she says, “criminal-justice debt is now a de facto way of funding a lot of American cities.”

The jailing of poor defendants who cannot pay fines — a particularly insidious version of this revenue machine — has been ruled unconstitutional since a trio of Supreme Court cases spanning the 1970s and early 1980s....  Still, decades after those cases were decided, the practice of jailing people who cannot pay persists, not least because Supreme Court decisions do not always make their way to local courts.  “Precedent is one thing,” says Alec Karakatsanis, executive director of Civil Rights Corps, a Washington-based nonprofit.  “The way a law is written is one thing. The way a law is actually experienced by poor people and people of color is another.”...

In 2010, the American Civil Liberties Union detailed evidence of what it calls “modern-day ‘debtors’ prisons’ ” — essentially, courts operating in the same way as Judge Ross’s in Corinth — in Georgia, Michigan, Louisiana, Ohio and Washington State.  “If you spent a few weeks driving from coast to coast, you might not find similar policies in place in every single county,” Sam Brooke, the deputy legal director of the Southern Poverty Law Center’s economic-justice program, told me.  “But every other county? Probably.  This is a massive problem, and it’s not confined to the South.  It’s national.”...

In recent years, the Southern Poverty Law Center and other organizations, including the A.C.L.U. and Karakatsanis’s Civil Rights Corps, have been filing class-action lawsuits against dozens of courts across the South and Midwest and West, arguing that local courts, in jailing indigent defendants, are violating the Supreme Court rulings laid down in Williams, Tate and Bearden.  The lawsuits work: As a settlement is negotiated, a judge typically agrees to stop jailing new inmates for unpaid fines or fees.  “No one wants to admit they’ve knowingly acted in this manner,” says Brooke, who partnered with Karakatsanis on lawsuits in Alabama and filed several elsewhere in the South. “So they tend to settle quickly.” The trouble is locating the offending courts.

January 8, 2019 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (0)

Saturday, January 05, 2019

"Efficient Institutions and Effective Deterrence: On Timing and Uncertainty of Punishment"

The title of this post is the title of this paper recently posted to SSRN authored by Johannes Buckenmaier, Eugen Dimant, Ann-Christin Posten and Ulrich Schmidt. Here is its abstract:

This paper presents the first controlled economic experiment to study celerity, i.e. the effectiveness of swiftness of punishment in reducing illicit behavior.  We consider two dimensions: timing of punishment and timing of the resolution of uncertainty regarding the punishment.  We find a surprising u-shaped relation between deterrence and the delays of punishment and uncertainty resolution.  Institutions that either reveal detection and impose punishment immediately or maintain uncertainty about the state of detection and impose punishment sufficiently late are equally effective at deterring illicit behavior.  Our results yield strong implications for the design of institutional policies to mitigate misconduct and reduce recidivism.

January 5, 2019 in Purposes of Punishment and Sentencing | Permalink | Comments (0)

Wednesday, January 02, 2019

Noting the notable "new crop of reform-minded prosecutors"

Though I do not expect a new wave of progressive prosecutors to radically change American criminal justice system, I do hope they can and will be important contributor to whole new conceptions of how to approach crime and punishment in the USA.  This new AP piece talks about some of the notable new folks taking office this year, and here are excerpts:

To get elected as a district attorney, sounding tough on crime used to be the most effective campaign strategy. But in recent years, district attorneys have been winning elections by sounding big on reform.

Next month, at least eight new reform-minded prosecutors will take office in cities around the country after winning their local elections by promising to be more compassionate toward drug addicts and more evenhanded in the treatment of minorities. Some won their races against long odds and deeply entrenched tough-on-crime attitudes.

In Chesterfield County, Virginia, a Democratic defense attorney who promised to eliminate cash bonds for nonviolent offenders won a traditionally conservative district held by a Republican for 30 years.

In Massachusetts, a lawyer who pledged to stop prosecuting a list of more than a dozen nonviolent crimes became the first African-American woman to win the district attorney’s office in Suffolk County, a district that includes Boston.

And in Dallas County, Texas, former Judge John Creuzot won after promising to reduce incarceration rates by 15 percent to 20 percent and to treat drug crimes as a public health issue. “Justice is HEART work” was part of his campaign slogan.

For decades, that kind of mantra by someone running for district attorney would have been seen as soft on crime and a turnoff for many voters. But a shift began in some communities several years ago when candidates began tapping into public frustration over high incarceration rates, disparate treatment of minorities, and the decades-old war on drugs....

This new crop of prosecuting attorneys is facing resistance to proposals for sweeping reforms, mainly from police and prosecutors in their own offices who are accustomed to decades-old policies of locking up defendants as long as possible....

Rachael Rollins, who won the District Attorney’s seat in Boston, raised the ire of everyone from police to retail store owners when she promised to stop prosecuting crimes such as shoplifting, resisting arrest, larceny under $250, drug possession and trespassing. She pledged to dismiss the cases or require offenders to do community service or complete education programs. “Accountability does not necessarily have to equal incarceration,” Rollins said. “There are many different tools we can use to hold people accountable.”

Larry Krasner, a civil rights attorney and public defender in Philadelphia, won a longshot bid for the District Attorney’s office in 2017. During his first year in office, Krasner has let go about 30 assistant prosecutors — 10 percent of the 300 lawyers in his office — and made it mandatory that he personally has to approve any plea deal that calls for more than 15 to 30 years in prison.

One of the challenges he’s faced and the newly elected DAs will likely face is an institutionalized belief that prosecutors should always seek the most serious charge and longest sentence possible. “I think resistance comes in many forms,” Krasner said. “There’s definitely a resistance that comes from the court system itself.”

Many of the new prosecutors have pledged to treat drug cases less like crimes and more like a public health problem. Scott Miles, a longtime defense attorney, won the Commonwealth’s Attorney job in Chesterfield County, just south of Richmond, Virginia, after promising to reduce felony drug offenses to misdemeanors in simple possession cases. Miles promised to “replace our outdated war-on-drugs approach to addiction.”

Kevin Carroll, president of the Chesterfield Fraternal Order of Police, said he is concerned that Miles will go too easy on drug offenders who often commit other crimes to support their habit. “If you’re not going to get in trouble for it, what’s the fear?” he said. “The truth of the matter is, unfortunately, for a lot of the people who are addicted to drugs, their ability to understand the difference between right and wrong is compromised. The fact is they’ll do what they need to do to get the drugs, and if they have to steal, they’ll steal.”

Lucy Lang, executive director of the Institute for Innovation in Prosecution at John Jay College of Criminal Justice, said the new batch of reform-minded prosecutors represents a shift in the public’s attitude toward the criminal justice system. “It’s a little hard to say whether this reflects a massive sea change,” Lang said. “But I do think that this reflects an increase in awareness on the public’s part of the civil rights crisis we have found ourselves in as a result of overpolicing and mass incarceration over the past 50 years.”

January 2, 2019 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (3)

Sunday, December 30, 2018

Highlighting continued work (and optimism) on alternatives to incarceration

I have had the great honor and pleasure for many years now of working with folks at the Aleph Institute, a national nonprofit that works on various criminal justice reform and recidivism reduction efforts. Hanna Liebman Dershowitz, who is director of special projects for the alternative sentencing division of the Aleph Institute, has this new New York Law Journal piece headlined "Our Country Grapples With Deepest Challenges Around Sentencing," discussing work on alternatives to incarceration and an event on the topic in the works for summer 2019.  Here is an excerpt:

The nonprofit I work with, the Aleph Institute, harbors a vision we call “Rewriting the Sentence,” wherein the cultural and political shift that has already taken hold in this country produces a complete reordering of our punishment priorities.  Once this shift is complete, we would view incarceration and other separation from community only as an option among many to be used sparingly, only when needed.

At present, we are such an outlying world incarcerator that we rank with the most heartless regimes on the planet.  It always bears repeating that we are not 5% of the world population and yet are responsible for almost a quarter of the world’s imprisoned population.  Across history, incarceration has not always dominated the punishment landscape — indeed, in Biblical law there is no such punishment as incarceration because of the inhumane collateral damage it wreaks.

We at Aleph think there are often legal and humanitarian reasons for the avoidance of custodial methods of correction at every stage of our system — from bail reform and law enforcement assisted diversion upfront to diversion programs, specialty courts and sentencing advocacy at the disposition stage to clemency, reentry support and compassionate release toward the back.

A system that uses evidence-based tools at each stage can deliver the optimal levels of supervision and services to allow each person to thrive and stay out of trouble.  Ideally — and I truly get that all of this sounds idealistic — we can use freed-up incarceration resources to support healthy communities, understanding that equity and thriving neighborhoods are the best prevention tools for crime.

What Aleph has learned from delivering care and support to thousands of individuals and families in prisons and jails all over the country for decades is that helping people function better is superior to an outmoded and misguided approach that inexorably leads to negative results, especially for the children left behind.

Here’s why I am not idealistic, but actually a pragmatist. If we don’t envision how we want the system to work, we will continue to incarcerate people none of us ever intended to incarcerate and to not know who we are incarcerating in a meaningful way.....

Why do I think I will see a true culture change in my lifetime on alternatives to incarceration too? Because we are already seeing the seeds of the change, to wit: in a recent meeting with the chief of alternatives for a major metropolitan district attorney, I was told that in recent years incoming prosecutors ask whether there are alternatives they can offer to defendants. In a decade, perhaps they will expect them.

So policy wonks and idealists alike, please stay tuned as we seek to rewrite a legacy of sentencing myopia. Aleph is convening criminal justice stakeholders next June at Columbia Law School for the Rewriting the Sentence 2019 Summit, and we will announce significant new initiatives thereafter. For more information, please visit askssummit.com.

December 30, 2018 in Criminal Sentences Alternatives, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (0)

Friday, December 28, 2018

"Predictions of Dangerousness in Sentencing: Déjà Vu All Over Again"

The title of this post is the title of this new paper authored by Michael Tonry no available via SSRN. Here is its abstract:

Predictions of dangerousness are more often wrong than right, use information they shouldn’t, and disproportionately damage minority offenders.  Forty years ago, two-thirds of people predicted to be violent were not.  For every two “true positives,” there were four “false positives.”  Contemporary technology is little better: at best, three false positives for every two true positives.  The best-informed specialists say that accuracy topped out a decade ago; further improvement is unlikely. 

All prediction instruments use ethically unjustifiable information.  Most include variables such as youth and gender that are as unjust as race or eye color would be.  No one can justly be blamed for being blue-eyed, young, male, or dark-skinned.  All prediction instruments incorporate socioeconomic status variables that cause black, other minority, and disadvantaged offenders to be treated more harshly than white and privileged offenders.  All use criminal history variables that are inflated for black and other minority offenders by deliberate and implicit bias, racially disparate practices, profiling, and drug law enforcement that targets minority individuals and neighborhoods.

December 28, 2018 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (1)

Monday, December 24, 2018

"Fifty Years of American Sentencing Reform — Nine Lessons"

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

Efforts to standardize sentences and eliminate disparities in a state or the federal system cannot succeed; distinctive practices and norms, diverse local cultures, and practical and political needs of officials and agencies assure major local differences in sentencing practice.  Presumptive sentencing guidelines developed by sentencing commissions, however, are the most effective means to improve consistency, reduce disparity, and control corrections spending.  Federal sentencing guidelines have been remarkably unsuccessful; they should be rebuilt from the ground up.  Mandatory sentencing laws should be repealed, and no new ones enacted; they produce countless injustices, encourage cynical circumventions, and seldom achieve demonstrable reductions in crime.  Black and Hispanic defendants are more likely than whites and Asians to be sentenced to imprisonment, and for longer; presumptive sentencing guidelines reduced racial disparities initially and over time, but most states do not have presumptive guidelines.  Use of predictions of dangerousness to determine who is imprisoned and for how long is unjust; predictive accuracy has improved little in 50 years and current methods too often lengthen prison terms of people who would not have committed violent crimes.  Except in the handful of states that have effective systems of presumptive sentencing guidelines, parole release is an essential component of a just and cost-effective sentencing system in the United States.

December 24, 2018 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, State Sentencing Guidelines | Permalink | Comments (0)

Tuesday, December 18, 2018

Convicted poacher sentenced to watch Bambi (really) ... and imagining other crime and Disney movie pairings

Bambi-860x726A couple of helpful colleagues have already made sure I did not miss this local story of a Missouri sentencing.  The press account is headlined "'Bambi' as punishment?  Sentence in SW Missouri poaching case includes mandated viewings," and here are the details:

Four members of a southwest Missouri family have been caught in a multi-year poaching case where authorities say hundreds of deer were killed illegally. “The deer were trophy bucks taken illegally, mostly at night, for their heads, leaving the bodies of the deer to waste," said Lawrence County Prosecuting Attorney Don Trotter.

Conservation agents are calling it one of Missouri's largest cases of deer poaching. The case was so egregious that Lawrence County Judge Robert George ordered a special addition to the jail time one of the poachers received.

Court records show the defendant "is to view the Walt Disney movie Bambi, with the first viewing being on or before December 23, 2018, and at least one such viewing each month thereafter, during Defendants incarceration in the Lawrence County Jail."

The southwest Missouri case involves David Berry Sr. of Springfield, David Berry Jr. of Brookline, and Kyle Berry of Everton. The trio were involved in a multi-year investigation by state, federal and Canadian law enforcement agencies and conservation officers involving suspects in Kansas, Missouri, Nebraska and Canada. David Berry Jr. is the defendant who was ordered to watch Bambi....

On Thursday, Dec. 13, David Berry Jr. received a 120-day sentence in Barton County Circuit Court for a felony firearms probation violation. On Dec. 6, he received a one-year jail sentence in Lawrence County Associate Court after pleading guilty to taking wildlife illegally on Oct. 11. The 120-day sentence Berry Jr. received in Barton County Circuit Court will be served in addition to the one-year sentence he received in Lawrence County.

These convictions were made with information obtained from Operation Game Thief, a hotline sponsored by the Missouri Department of Conservation and the Conservation Federation of Missouri. “It is unknown how many deer the main group of suspects has taken illegally over the past several years,” Lawrence County Conservation Agent Andy Barnes said. “It would be safe to say that several hundred deer were taken illegally.”

Prior to the July 2016 interviews, David Berry Sr. and Eric Berry, 20, Everton, were convicted of taking gamefish by hand in Dade County. During the 2017 firearms deer season, while awaiting his court appearance for violations from the 2016 investigation, Eric Berry and an accomplice were caught spotlighting in Lawrence County. To date, this group of poachers has paid $151,000 in bonds and $51,000 in fines and court costs and collectively served 33 days in jail.

David Berry Sr. and David Berry Jr. had their hunting, fishing and trapping privileges revoked for life by the Missouri Conservation Commission. Eric Berry and Kyle Berry had hunting and fishing privileges revoked for 18 years and 8 years, respectively. Jerimiah Cline, of Republic, who took wildlife illegally and assisted the Berrys, had hunting privileges revoked for five years....

Why take just the deer heads and leave the rest to rot? "In situations like this, with serial poachers who have no regard for the animals, rules of fair chase, or aren’t bothered by the fact that they’re stealing from others, it’s all about greed and ego," said Randy Doman, MDC Protection Division Chief. "Taking just the heads is their version of obtaining a 'trophy' and leaving the carcass behind is merely an afterthought. While there are some cases where poachers go after the antlers for profit, with this bunch it was more about the thrill of the kill itself."

The report that some of these defendants had previously gotten in trouble for "taking gamefish by hand" has me thinking (only half-jokingly) that they should have been ordered to watch Disney's Little Mermaid. And, of course, Disney's Lion King should be a must-watch for that infamous guy who went hunting illegally for Cecil the Lion.  

Especially when we all could use an extra bit of levity in our lives, I have in the title of this post sought to encourage everyone to come up with clever crime and Disney movie pairings.   Would it be so wrong to suggest that Michael Cohen should have been ordered to watch Disney's Robin Hood?  Or that anyone convicted of conducting illegal experiments has to watch Disney's Lilo & Stitch?  (I know that last one is really a stretch, but I wanted to suggest I will no judge silly efforts to spotlight a lesser-known Disney movie in this parlor game).

So, dear readers, what crime and Disney movie sentencing would you find fitting and amusing?

December 18, 2018 in Criminal Sentences Alternatives, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)