Thursday, November 15, 2018

"The Time Frame Challenge to Retributivism"

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

Retributivists believe that criminal offenders should suffer or be punished in proportion to what they morally deserve.  There is, however, an often-ignored debate as to whether desert should be assessed across a person’s life (the “whole life” view) or only for crimes that are the subject of a current sentencing proceeding (the “current crime” view).  Both options are unappealing. 

The whole life view may be superior on theoretical grounds but is hopelessly impractical.  The current crime view is somewhat more practical but has no solid theoretical foundation. The lack of a suitable time frame in which to assess desert represents an important challenge to retributivist conceptions of proportionality.  Even uncertainty about the proper time frame may itself be detrimental to some retributivists’ hopes of justifying the incarcerative sentences of particular offenders.

November 15, 2018 in Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (0)

Tuesday, November 13, 2018

Senator Mike Lee makes the "conservative case for criminal justice reform"

Utah Senator Mike Lee has this new opinion piece at Fox News headlined "A conservative case for criminal justice reform." Here are excerpts:

“Government’s first duty,” President Reagan said in 1981 and President Trump recently tweeted, “is to protect the people, not run their lives.”  The safety of law-abiding citizens has always been a core principle of conservatism.  And it is why we need to take this opportunity to pass real criminal-justice reform now.

Although violent crime rose during the final two years of President Obama’s time in office, it decreased during the first year of Trump’s presidency.  We need to keep that momentum going. And criminal justice reform can help us do that in two ways.

First, commonsense sentencing reform can increase trust in the criminal-justice system, thus making it easier for law enforcement personnel to police communities.  Right now, federal mandatory-minimum sentences for many drug offenses can lead to outcomes that strike many people as unfair, and thus undermine the public’s faith in our justice system....

When the public sees judges handing out unfair punishments, it undermines trust in the entire justice system.  This makes it harder for police to do their job.  As Ronald Reagan explained when he was Governor of California, “[w]ithout respect for the law, the best laws cannot be effective.  Without respect for law enforcement, laws cannot be carried out.  We must have respect, not only for the law, but also for the many who dedicate their lives to the protection of society through enforcement of the law.”  Fairer sentencing laws will increase respect for police, especially in many communities where such respect is currently lacking.

Second, excessive prison sentences break apart families and weaken communities -- the building blocks of American civil society.  Incarceration is tough on any marriage.  Few can survive the loss of marital love and financial strain that happens when a spouse is behind bars.  And the longer the sentence, the more likely a marriage will end in divorce.  One 2011 study found that each additional year behind bars increases the likelihood of divorce by 32 percent.  This has real costs for the families -- and especially the children -- of offenders.

Incarceration is an essential law enforcement tool that protects communities and keeps families safe.  But it also inflicts costs on communities and families, and at some point the negative impact of incarceration on marriage and family can become too stark to ignore.  And for non-violent offenders, especially those with no prior criminal history, excessive sentences often do far more harm than good.

We now have a rare opportunity to pass criminal justice reform that will help restore trust in law enforcement and protect American families.  In May of this year, the House of Representatives passed the First Step Act, which includes some much-needed prison reform measures that would reduce recidivism.  Unfortunately, it did not include any reforms to address manifestly unjust sentences for non-violent offenders.

The Senate now has a chance to add some of those much-needed prison reform measures into the bill.  We won’t get everything we want, but we have an incredible opportunity to reach a compromise that includes meaningful, commonsense reforms to our nation’s mandatory-minimum drug sentencing laws.

It is unlikely we will get another opportunity to enact meaningful reform anytime soon.  President Obama failed to accomplish criminal-justice reform during his eight years in office.  But President Trump and the Republican Congress can get the job done now.  It would be another big step toward making America great again.

November 13, 2018 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Friday, November 09, 2018

Michelle Alexander frets about "The Newest Jim Crow"

Michelle Alexander has this notable new New York Times opinion piece headlined ""The Newest Jim Crow: Recent criminal justice reforms contain the seeds of a frightening system of 'e-carceration'." I recommend the piece in full, and here are excerpts:

Since 2010, when I published “The New Jim Crow” — which argued that a system of legal discrimination and segregation had been born again in this country because of the war on drugs and mass incarceration — there have been significant changes to drug policy, sentencing and re-entry, including “ban the box” initiatives aimed at eliminating barriers to employment for formerly incarcerated people.

This progress is unquestionably good news, but there are warning signs blinking brightly. Many of the current reform efforts contain the seeds of the next generation of racial and social control, a system of “e-carceration” that may prove more dangerous and more difficult to challenge than the one we hope to leave behind.

Bail reform is a case in point.  Thanks in part to new laws and policies — as well as actions like the mass bailout of inmates in New York City jails that’s underway — the unconscionable practice of cash bail is finally coming to an end. In August, California became the first state to decide to get rid of its cash bail system; last year, New Jersey virtually eliminated the use of money bonds.

But what’s taking the place of cash bail may prove even worse in the long run. In California, a presumption of detention will effectively replace eligibility for immediate release when the new law takes effect in October 2019.  And increasingly, computer algorithms are helping to determine who should be caged and who should be set “free.”  Freedom — even when it’s granted, it turns out — isn’t really free.

Under new policies in California, New Jersey, New York and beyond, “risk assessment” algorithms recommend to judges whether a person who’s been arrested should be released. These advanced mathematical models — or “weapons of math destruction” as data scientist Cathy O’Neil calls them — appear colorblind on the surface but they are based on factors that are not only highly correlated with race and class, but are also significantly influenced by pervasive bias in the criminal justice system.  As O’Neil explains, “It’s tempting to believe that computers will be neutral and objective, but algorithms are nothing more than opinions embedded in mathematics.”

Challenging these biased algorithms may be more difficult than challenging discrimination by the police, prosecutors and judges. Many algorithms are fiercely guarded corporate secrets.  Those that are transparent — you can actually read the code — lack a public audit so it’s impossible to know how much more often they fail for people of color.

Even if you’re lucky enough to be set “free” from a brick-and-mortar jail thanks to a computer algorithm, an expensive monitoring device likely will be shackled to your ankle — a GPS tracking device provided by a private company that may charge you around $300 per month, an involuntary leasing fee.  Your permitted zones of movement may make it difficult or impossible to get or keep a job, attend school, care for your kids or visit family members. You’re effectively sentenced to an open-air digital prison, one that may not extend beyond your house, your block or your neighborhood.  One false step (or one malfunction of the GPS tracking device) will bring cops to your front door, your workplace, or wherever they find you and snatch you right back to jail.

Who benefits from this?  Private corporations.  According to a report released last month by the Center for Media Justice, four large corporations — including the GEO Group, one of the largest private prison companies — have most of the private contracts to provide electronic monitoring for people on parole in some 30 states, giving them a combined annual revenue of more than $200 million just for e-monitoring.  Companies that earned millions on contracts to run or serve prisons have, in an era of prison restructuring, begun to shift their business model to add electronic surveillance and monitoring of the same population.  Even if old-fashioned prisons fade away, the profit margins of these companies will widen so long as growing numbers of people find themselves subject to perpetual criminalization, surveillance, monitoring and control....

Many reformers rightly point out that an ankle bracelet is preferable to a prison cell.  Yet I find it difficult to call this progress.  As I see it, digital prisons are to mass incarceration what Jim Crow was to slavery.

If you asked slaves if they would rather live with their families and raise their own children, albeit subject to “whites only signs,” legal discrimination and Jim Crow segregation, they’d almost certainly say: I’ll take Jim Crow.  By the same token, if you ask prisoners whether they’d rather live with their families and raise their children, albeit with nearly constant digital surveillance and monitoring, they’d almost certainly say: I’ll take the electronic monitor.  I would too.  But hopefully we can now see that Jim Crow was a less restrictive form of racial and social control, not a real alternative to racial caste systems.  Similarly, if the goal is to end mass incarceration and mass criminalization, digital prisons are not an answer. They’re just another way of posing the question.

Some insist that e-carceration is “a step in the right direction.”  But where are we going with this? A growing number of scholars and activists predict that “e-gentrification” is where we’re headed as entire communities become trapped in digital prisons that keep them locked out of neighborhoods where jobs and opportunity can be found.

If that scenario sounds far-fetched, keep in mind that mass incarceration itself was unimaginable just 40 years ago and that it was born partly out of well-intentioned reforms — chief among them mandatory sentencing laws that liberal proponents predicted would reduce racial disparities in sentencing.  While those laws may have looked good on paper, they were passed within a political climate that was overwhelmingly hostile and punitive toward poor people and people of color, resulting in a prison-building boom, an increase in racial and class disparities in sentencing, and a quintupling of the incarcerated population.

November 9, 2018 in Collateral consequences, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Technocorrections | Permalink | Comments (3)

Thursday, November 08, 2018

"The Death Penalty as Incapacitation"

The title of this post is the title of this new paper available via SSRN authored by Marah Stith McLeod.  Here is its abstract:

Courts and commentators give scant attention to the incapacitation rationale for capital punishment, focusing instead on retribution and deterrence.  The idea that execution may be justified to prevent further violence by dangerous prisoners is often ignored in death penalty commentary.  The view on the ground could not be more different.  Hundreds of executions have been premised on the need to protect society from dangerous offenders.  Two states require a finding of future dangerousness for any death sentence, and over a dozen others treat it as an aggravating factor that turns murder into a capital crime.

How can courts and commentators pay so little heed to this driving force behind executions? The answer lies in two assumptions: first, that solitary confinement and life without parole also incapacitate, and second, that prediction error makes executions based on future risk inherently arbitrary.  Yet solitary confinement and life without parole entail new harms — either torturous isolation or inadequate restraint. Meanwhile, the problem of prediction error, while significant, can be greatly reduced by reevaluating future dangerousness over time.

This Article illuminates the remarkable history, influence, and normative import of the incapacitation rationale, and shows how serious engagement with the incapacitation rationale can lead to practical reforms that would make the death penalty more fair.  It concludes by highlighting several of the most promising reforms.

November 8, 2018 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (1)

Thursday, October 25, 2018

"How ‘End Mass Incarceration’ Became a Slogan for D.A. Candidates"

The title of this post is the title of this notable new New York Times article. Here is how the lengthy piece gets started:

The Dallas County district attorney, Faith Johnson, often reminds voters that she recently won a rare murder conviction against a white police officer who shot into a car full of teenagers, killing a black 15-year-old boy. “They couldn’t get that conviction in New York. They couldn’t get it in California. They couldn’t get it in Ohio,” Ms. Johnson, a Republican running to remain in office in November, told the mostly black crowd at a recent candidate forum at the African American Museum. “We got it here in Dallas County.”

But then her Democratic opponent took the microphone and pledged to be even tougher on the police. And he promised that if elected, he would reduce the number of Dallas County residents who end up behind bars. “In the first 90 days, I’m going to give you a plan to end mass incarceration,” said John Creuzot, a former judge who hopes to unseat Ms. Johnson in November.

In the past, candidates running to be district attorney — if they were challenged at all — touted their toughness on crime. But now district attorneys’ races have become more competitive, attracting large donations and challengers running on pledges to transform the criminal justice system.

The focus on local races comes as overhaul efforts have stalled on the federal level. Attorney General Jeff Sessions has vowed to aggressively prosecute nonviolent drug crimes, and President Trump has praised policing tactics such as stop-and-frisk.

The push to rethink criminal justice practices has been embraced by liberals and some conservatives, and polls show a majority of voters favor reducing the number of nonviolent drug offenders who are sent to prison. But disagreement remains about exactly how to revamp district attorney offices, which handle most criminal cases in the country.

In Jefferson County, Ala., the Democratic district attorney candidate, Danny Carr, has floated the idea of treating the possession of small amounts of marijuana more like a traffic violation. In San Antonio, Joe Gonzales, also a Democrat, has pledged to rehabilitate more nonviolent offenders, rather than locking them up.

Others are proposing more aggressive measures. Rachael Rollins in Boston, who has no Republican challenger in November, released a list of low-level crimes, such as disturbing the peace, that she would decline to prosecute altogether.

October 25, 2018 in Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

"Supermajoritarian Criminal Justice"

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

Democracy is often equated with majority rule.  But closer analysis reveals that, in theory and by constitutional design, our criminal justice system should be supermajoritarian, not majoritarian.  The Constitution guarantees that criminal punishment may be imposed only when backed by the supermajoritarian — historically, unanimous — approval of a jury drawn from the community.  And criminal law theorists’ expressive and retributive justifications for criminal punishment implicitly rely on the existence of broad community consensus in favor of imposing it. 

Despite these constitutional and theoretical ideals, the criminal justice system today is majoritarian, at best.  Both harsh and contested, it has lost the structural mechanisms that could ensure supermajoritarian support.  By incorporating new supermajoritarian checks and reinvigorating old ones, we could make criminal punishment consonant with first principles and more responsive to community intuitions of justice.

October 25, 2018 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Thursday, October 18, 2018

Remarkable sentencing where district judge decided crooked cops needed more punishment than federal prosecutors sought

This local article from Florida reports on a sentencing in a remarkable federal case under the headline "Ex-Biscayne Park officers get year in prison for roles in framing black teen in crimes." Here are the details from the start of the article:

By helping the feds make a case against a corrupt ex-Biscayne Park police chief, two convicted former officers were hoping to avoid prison time for their roles in framing a black teenager with a string of burglaries. Instead, Charlie Dayoub and Raul Fernandez were handcuffed and led by U.S. Marshals into custody on Tuesday after U.S. District Judge K. Michael Moore sentenced them to the maximum: one year in prison for the false arrests.

As family members cried in disbelief, Moore chastised federal prosecutors for agreeing to recommend eight months of home confinement for Dayoub and one year of probation for Fernandez based on their grand jury testimony and other assistance in helping target former Chief Raimundo Atesiano, who had pressured officers in the mostly white suburban town to pin property crimes on people of color. He pleaded guilty last month. “It would have been a slap on the wrist, and it would have sent entirely the wrong message — particularly to the minority community,” Moore told Assistant U.S. Attorney Harry Wallace. “To think that they can come into court and get a slap on the wrist is insulting to the men and women in law enforcement.”

Moore challenged the prosecutor about his recommendation of leniency for the two defendants, who pleaded guilty in August to depriving a 16-year-old of his civil rights after framing him for four unsolved burglaries in 2013 at the direction of the ex-chief, Atesiano. The misdemeanor conviction carried up to one year in prison, while under the plea agreement prosecutors dropped a more serious civil rights conspiracy charge with a maximum 10-year sentence.

Wallace said his decision allowed the U.S. Attorney’s Office to use testimony by Dayoub and Fernandez to compel Atesiano to plead guilty to the felony civil rights conspiracy. “We were faced with a Hobson’s choice,” Wallace told the judge. But Moore, who accused the prosecutors of “sentencing manipulation,” rejected Wallace’s argument. The judge said had the prosecutors gone to trial against the ex-chief and the two officers, it would have been a “slam dunk.”

The sentencing outcome was a shock to everyone in the courtroom, especially the defendants, who were expecting leniency because the prosecutors joined their defense attorneys in support of no prison time. The reason: The two former Biscayne Park police officers testified before a federal grand jury about how the department’s ex-chief pressured them to arrest people of color and others for crimes they did not commit in the leafy bedroom community north of Miami.

Dayoub, 38, and Fernandez, 62, testified that Atesiano’s goal was to achieve a 100 percent burglary clearance rate, even if it meant pinning unsolved break-ins on people who were innocent victims, according to newly filed court records. Atesiano, 52, and another former Biscayne Park officer, Guillermo Ravelo, 37, already pleaded guilty to conspiring to violate the civil rights of innocent victims by falsely arresting them. Ravelo faces up to 10 years at his sentencing on Thursday, while Atesiano faces similar punishment in November.

UPDATE: This new Justice Department press release discusses the underlying crimes in detail while announcing that today "former Biscayne Park Police Officer Guillermo Ravelo was sentenced to 27 months incarceration for conspiracy to deprive a person of his civil rights and deprivation of civil rights under color of law."

October 18, 2018 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (11)

Wednesday, October 17, 2018

"Evidence-Informed Criminal Justice"

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

The American criminal justice system is at a turning point.  For decades, as the rate of incarceration exploded, observers of the American criminal justice system criticized the enormous discretion wielded by key actors, particularly police and prosecutors, and the lack of empirical evidence that has informed that discretion.  Since the 1967 President’s Commission on Law Enforcement and Administration of Justice report, The Challenge of Crime in a Free Society, there has been broad awareness that the criminal system lacks empirically informed approaches.  That report unsuccessfully called for a national research strategy, with an independent national criminal justice research institute, along the lines of the National Institutes of Health.  Following the report, police agencies continued to base their practices on conventional wisdom or “tried-and-true” methods.  Prosecutors retained broad discretion, relying on their judgment as lawyers and elected officials.  Lawmakers enacted new criminal statutes, largely reacting to the politics of crime and not empirical evidence concerning what measures make for effective crime control.  Judges interpreted traditional constitutional criminal procedure rules in deference to the exercise of discretion by each of these actors.  Very little data existed to test what worked for police or prosecutors, or to protect individual defendants’ rights.

Today, criminal justice actors are embracing more data-driven approaches.  This raises new opportunities and challenges.  A deep concern is whether the same institutional arrangements that produced mass incarceration will use data collection to maintain the status quo. Important concerns remain with relying on data, selectively produced and used by officials and analyzed in nontransparent ways, without sufficient review by the larger research and policy community.  Efforts to evaluate research in a systematic and interdisciplinary fashion in the field of medicine offer useful lessons for criminal justice.  This Article explores the opportunities and concerns raised by a law, policy, and research agenda for an evidence-informed criminal justice system.

October 17, 2018 in Data on sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Friday, October 12, 2018

Highlighting how constitutional problems with death penalty also apply to drug prohibitions

Over at Marijuana Moment, Kyle Jaeger in this post is quick to note interesting implications of key statements by the Washington Supreme Court in its big opinion yesterday striking down the state's death penalty as "unconstitutional, as administered, because it is imposed in an arbitrary and racially biased manner."  The post is titled "Successful Constitutional Case Against Death Penalty Works For War on Drugs, Too," and here are excerpts:

The movement to restore civil liberties and resolve systemic racial injustices in the criminal justice system scored a major victory on Thursday. And no, this time we’re not talking about ending the war on drugs.  Or at least not yet. Washington became the 20th state to abolish the death penalty, with the state Supreme Court ruling that capital punishment is unconstitutional because “it is imposed in an arbitrary and racially biased manner.”

If you’re already seeing parallels to arguments for ending drug prohibition, you’re not alone.  Many of the same points the court made in their ruling against the death penalty ring true for the war on drugs, too.  For example, the court argued that death sentences have been disproportionately carried out against black defendants, at a rate more than four times higher than it is for white defendants....

Similarly, drug reform advocates have long maintained that prohibition is racially discriminatory given disproportionate rates of enforcement and arrests for drug-related offenses.  Black Americans are nearly three times as likely to be arrested for a drug-related crime, compared to white Americans.  That’s in spite of the fact that rates of consumption are roughly equal among both groups...

The Washington court said another factor that contributed to their decision concerned “contemporary standards and experience in other states.” “We recognize local, national, and international trends that disfavor capital punishment more broadly.  When the death penalty is imposed in an arbitrary and racially biased manner, society’s standards of decency are even more offended.”

The parallel here couldn’t be more clear.  If such trends demonstrate a need to review and reform an existing law, the same rationale could theoretically apply to drug prohibition.  A majority of states have legalized cannabis for medical or adult-use, and national interest in changing federal marijuana laws has steadily grown in recent years.  Beyond marijuana, a broader drug reform push has included calls to abolish mandatory minimum sentences for non-violent drug offenses.

Of course, marijuana is already legal in Washington, and no other states have yet legalized drugs, so this part of the ruling’s applicability to a potential case seeking to strike down broad drug prohibition in the state might not be quite ripe yet.  While it’s unclear whether the constitutionality of prohibition could be reasonably challenged on similar legal grounds, the similarities are striking. 

The justification for capital punishment was another point of interest for the justices, who noted that the system failed to achieve its “penological goals” of “retribution and deterrence.”  For all intents and purposes, drug prohibition too has failed to achieve similar goals.  Decades of drug war have not appreciably deterred consumption.  From 2001 to 2013, the rate of marijuana use among American adults almost doubled, for instance.  The Cato Institute analyzed the impact of the drug war in a 2017 report. It concluded that prohibitionist policies “fail on practically every margin.”...

A last note from the Washington Supreme Court justices: “Under article I, section 14, we hold that Washington’s death penalty is unconstitutional, as administered, because it is imposed in an arbitrary and racially biased manner,” the justices wrote.  “Given the manner in which it is imposed, the death penalty also fails to serve any legitimate penological goals.”  Now swap “death penalty” with “drug prohibition” in that last quote.  Fits like a glove.

Prior related post:

October 12, 2018 in Death Penalty Reforms, Drug Offense Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Sunday, October 07, 2018

"Robot Criminals"

I just noticed this recent paper on SSRN that had a title too good not to blog.  The paper is authored by Ying Hu, and here is its abstract:

When a robot harms humans, are there any grounds for holding it criminally liable for its misconduct? Yes, provided that the robot is capable of making, acting on, and communicating the reasons behind its moral decisions.  If such a robot fails to observe the minimum moral standards that society requires of it, labeling it as a criminal can effectively fulfill criminal law’s function of censuring wrongful conduct and alleviating the emotional harm that may be inflicted on human victims.

Imposing criminal liability on robots does not absolve robot manufacturers, trainers, or owners of their individual criminal liability.  The former is not rendered redundant by the latter.  It is possible that no human is sufficiently at fault in causing a robot to commit a particular morally wrongful action.  Additionally, imposing criminal liability on robots might sometimes have significant instrumental value, such as helping to identify culpable individuals and serving as a self-policing device for individuals who interact with robots.  Finally, treating robots that satisfy the above-mentioned conditions as moral agents appears much more plausible if we adopt a less human-centric account of moral agency.

The article does not discuss sentencing until its very end, but this paragraph covers robot punishment possibilities:

Assuming we can punish robots, a new question naturally follows: how should a robot be punished? In this regard, a range of measures might be taken to secure that the robot commit fewer offenses in the future. These include:

  a. physically destroying the robot (the robot equivalent of a “death sentence”);

  b. destroying or re-write the moral algorithms of the robot (the robot equivalent of a “hospital order”);

  c. preventing the robot from being put to use (the robot equivalent of a “prison sentence”); and/or

  d. ordering fines to be paid out of the insurance fund (the robot equivalent of a “fine”).

In addition, the unlawful incident can be used to design a training module to teach other smart robots the correct course of action in that scenario.

October 7, 2018 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (1)

Thursday, October 04, 2018

"The Cure for America's Opioid Crisis? End the War on Drugs"

The title of this post is the title of this new paper now available via SSRN and authored by Christine Minhee and Steve Calandrillo.  Here is its abstract:

The War on Drugs.  What began as a battle waged on morals has in fact created multiple public health crises, and no recent phenomenon illustrates this in more macabre detail than America’s opioid disaster. Last year alone amassed a higher death toll than the totality of American military casualties in the Vietnam, Iraq, and Afghanistan wars combined.  With this wave of mortalities came an accompanying tidal crash of parens patriae lawsuits filed by states, counties, and cities on the theory that jurisdictions are entitled to recompense for the costs of addiction ostensibly created by Big Pharma.  To those attuned to the failures of the Iron Law of Prohibition, this litigation-fueled blame game functions merely as a Band-Aid over a deeply infected wound.

This Article synthesizes empirical economic impact data to paint a clearer picture of the role that drug prohibition has played in the devastation of American communities, exposes parens patriae litigation as a misguided attempt at retribution rather than deterrence, and calls for the legal and political decriminalization of opiates.  We reveal that America’s fear of decriminalization has at its root the “chemical hook” fallacy — a holdover from Nancy Reagan-era drug policy that has been debunked by far less wealthy countries like Switzerland and Portugal, whose economies have already benefited from discarding the War on Drugs as an irrational and expensive approach to public health.  We argue that the legal and political acceptance of addiction as a public health issue — not the view that addiction is a moral failure to scourge — is the only rational, fiscally responsible option left to a country that badly needs both a prophylactic against future waves of heavy opioid casualties, and restored faith in its own criminal justice system.

October 4, 2018 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (1)

Excited to hear Shon Hopwood speak about earned prison credit as Ohio considers ballot initiative known now as Issue 1

For months I have been flagged here and elsewhere the interesting and intricate drug sentencing and prison reform initiative on the November 2018 ballot here in Ohio.  Originally called the "Neighborhood Safety, Drug Treatment and Rehabilitation Amendment," the initiative now is just known within Ohio as Issue 1.   With early voting in Ohio now just days away, the new Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law has its latest Issue 1 program  taking place today. 

Specifically, at the College of Law at 12noon, is the second of our five public panels under the title Ballot Insights.  (Registration for these panels is available at this link, where you can also find more details on the focus for each of the panels.)  Today's panel is focused on the Issue 1 provisions expanding "earned time credit" for Ohio prisoners to reduce their sentences through rehabilitative programming, and we have the pleasure of hosting Shon Hopwood as one of the panelists. 

In addition to the panels, DEPC has also created a Resources Page for Issue 1, which includes links to the ballot language, position statements from various groups and select media coverage.  DEPC is also building out a Commentary Page on Issue 1 for publishing original commentary that the Center has solicited. 

 Prior related posts:

October 4, 2018 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Wednesday, October 03, 2018

Attorney General Jeff Sessions boasts about federal prosecutors now "running up the score against the criminals"

As of September 27, 2018, the federal prison population was reported at 181,726, the lowest level in more than a dozen years.  But this new speech that Attorney General Jeff Sessions delivered today in Utah suggests it may be only a matter of time before this population is heading up again.  Here is an excerpt that leads me to this view:

Forging new relationships with local prosecutors and building on existing relationships will ensure that the most violent offenders are prosecuted in the most appropriate jurisdiction. Our goal is not to fill up the courts or fill up the prisons.  Our goal is to reduce crime, just as President Trump directed us to do.  Our goal is to make every community safer — especially the most vulnerable....

Our prosecutors in Utah are running up the score against the criminals.  They charged 29 percent more defendants in 2017 than they did in 2014.  That includes 64 percent more drug trafficking defendants, 44 percent more violent crime defendants, and 40 percent more illegal re-entries....

In 2018, the Department of Justice prosecuted more violent criminals than in any year on record.  At the same time, we charged the highest number of federal firearm defendants in history.  Fully 41 percent more gun defendants were prosecuted in fiscal year 2017 than they were just five years before.

This past year we broke our own record — and it wasn’t even close.  Over the last fiscal year — October 1 of 2017 up to September 30, 2018 — the Department of Justice brought charges against 15 percent more violent crime defendants than we did in the previous, record-breaking year.  That’s 20 percent more violent crime defendants than we charged in fiscal 2016.

We also charged nearly 20 percent more firearm defendants than we did in 2017 and 30 percent more than we charged in 2016.  We’ve been so tough on illegal guns that we’re actually getting attacked in the press for it — if you can believe that.

Here’s what the critics don’t understand: we are going after violent felons.  We are targeting the most dangerous people in the most violent areas who have guns....

Law enforcement pays dividends — because when we have safer streets, businesses are more likely to invest and create jobs, property values go up, and the people we serve are more likely to flourish.  And so we are going to keep up this pace.  We are going to keep supporting Utah’s state and local police.  We’re going to keep arming them with the tools, resources, and expertise that they need to protect the people of this city and this state.

October 3, 2018 in Data on sentencing, National and State Crime Data, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (4)

Tuesday, October 02, 2018

New "Square One Project" already producing terrific paper on re-imagining criminal justice policy

Square-One-logo-300x300This posting from the Laura and John Arnold Foundation (LJAF) describes a notable new criminal justice reform effort that formally launched a few weeks ago:

The Square One Project, a three-year initiative to rethink justice policies from top to bottom, launched [on September 20] at D.C.’s National Press Club.  Square One brings together a diverse cross-section of academics, policymakers, and community organizers to re-examine traditional responses to crime and envision a new paradigm that can address systemic inequalities such as poverty and racial discrimination.  The Columbia University Justice Lab, John D. and Catherine T. MacArthur Foundation, and Laura and John Arnold Foundation (LJAF) support the project.

Square One seeks to reform a criminal justice system in urgent need of change . Over the last four decades, the number of people in America’s prisons and jails has increased 500 percent.  Prisons are overcrowded, states struggle to fund basic services, and racial inequities inherent in the system have devastated communities. “The project asks: If we set aside the traditional response to crime, and ask first whether other responses might be more effective — if we begin at ‘square one’ — how would criminal justice policy be different?” said Kelli Rhee, President and CEO of LJAF.

The initiative consists of three core components: an executive session focusing on justice policy; roundtables in cities across the country; and a comprehensive community engagement and communications strategy. In the executive session, about 30 leading experts, practitioners, and scholars will meet twice a year to develop and refine proposals. “This format will test and push participants to challenge their own thinking and consider new options,” said Bruce Western, co-director of the Columbia University Justice Lab. “These frank, off-the-record discussions will ultimately yield fresh discourse and new research among academics, policymakers, practitioners, and communities.”

Roundtable sessions will invite broader engagement with community members and a variety of stakeholder groups, tackling a single, complex policy challenge. The first Square One roundtable is scheduled for Oct. 11-13 in Durham, N.C., in partnership with North Carolina Central University.  The discussions, held at the NCCU School of Law, will be live-streamed.

As shown in this page at Square One's website, the executive session part of the project is already producing some very interesting papers by some very interesting people:

Though I am not sure if additional papers will be emerging from the Square One executive sessions or the roundtables, I am sure folks interested in thinking deeply about the present and future of criminal justice policies and practices in the United States should be watching what this project continued to produce.

October 2, 2018 in Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (1)

Monday, October 01, 2018

Previewing SCOTUS consideration of capital competency (and making a case for abolition)

The Supreme Court is scheduled to hear oral argument in Madison v. Alabama on Tuesday morning, and Amy Howe has this argument preview at SCOTUSblog titled "Justices to consider competency in capital cases."  Her post starts this way:

It has been over 33 years since Vernon Madison shot and killed Julius Schulte, a police officer in Mobile, Alabama. Schulte had come to Madison’s house to protect Madison’s former girlfriend and her daughter while they moved out; Schulte was sitting in his car when Madison shot him twice in the back of the head. Madison was convicted of capital murder and sentenced to death, but next week the Supreme Court will hear oral argument on whether it would violate the Constitution to execute Madison when he has no memory of his crime.

Madison, now in his late 60s, has been on death row for over 30 years. During that time, he has had several strokes, which have left him with significant brain damage. Madison suffers from dementia and long-term memory loss; he is also legally blind and can no longer walk without assistance. Since Madison’s stroke, his lawyers tell the Supreme Court, Madison “has repeatedly asked for his mother to come and visit him even though she has been dead for years.”

 Madison also cannot remember any of the details of the crime that put him on death row, including Schulte’s name, the events surrounding the crime, or his trial.  After his execution was scheduled for January of this year, Madison went to state court to challenge his competency to be executed, armed with evidence that a court-appointed expert who had evaluated him, and whose findings had played a key role in earlier rulings that Madison was competent to be executed, was abusing narcotics and was eventually suspended from practicing psychology. The state court would have allowed Madison’s execution to go forward, but the Supreme Court stepped in and — over the objection of Justices Clarence Thomas, Samuel Alito and Neil Gorsuch — put the execution on hold while it considered Madison’s request for review.

Interestingly, the National Review has published this notable commentary authored by George Will discussing this case under the headline "America Should Strike Down the Death Penalty."  Here are excerpts:

The mills of justice grind especially slowly regarding capital punishment, which courts have enveloped in labyrinthine legal protocols.  As the mills have ground on, life has ground Madison, 68, down to wreckage.  After multiple serious strokes, he has vascular dementia, an irreversible and progressive degenerative disease. He also is legally blind, his speech is slurred, he has Type 2 diabetes and chronic hypertension, he cannot walk unassisted, he has dead brain tissue, and urinary incontinence. A nd he no longer remembers the crime that put him on death row for most of his adult life. This is why on Tuesday, the Supreme Court will hear oral arguments about the constitutionality of executing him....

The court has said that “we may seriously question the retributive value of executing a person who has no comprehension of why he has been singled out and stripped of his fundamental right to life.”  For many people, the death penalty for especially heinous crimes satisfies a sense of moral symmetry.  Retribution — society’s cathartic expression of a proportional response to attacks on its norms — is not, however, the only justification offered for capital punishment.  Deterrence is another.  But by now this power is vanishingly small because imposition of the death penalty is so sporadic and glacial.  Because the process of getting from sentencing to execution is so protracted, currently averaging 15 years, senescent persons on the nation’s death rows are going to be problems as long as there is capital punishment....

Sixty years ago, Chief Justice Earl Warren wrote that the Eighth Amendment — particularly the idea of what counts as “cruel” punishments — “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”  Concerning which, two caveats are apposite: “evolving” is not a synonym for “improving,” and a society can become, as America arguably is becoming, infantilized as it “matures.”  That said, it certainly is true that standards of decency do evolve and that America’s have improved astonishingly since 1958: Think about segregated lunch counters and much else.

Conservatives have their own standards, including this one: The state — government — already is altogether too full of itself, and investing it with the power to inflict death on anyone exacerbates its sense of majesty and delusions of adequacy.

UPDATE: I just saw this interesting new OZY piece discussing Madison and related issues under the headline "Why the Battle over Dementia Patients on Death Row? Better Lawyers."

October 1, 2018 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (2)

Friday, September 28, 2018

"Incapacitating Criminal Corporations"

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

If there is any consensus in the fractious debates over corporate punishment, it is this: a corporation cannot be imprisoned, incarcerated, jailed, or otherwise locked up. Whatever fiction the criminal law entertains about corporate personhood, having an actual “body to kick” — and, by extension, a body to throw into prison — is not one of them. The ambition of this project is not to reject this obvious point, but rather to challenge the less-obvious claim it has come to represent: incapacitation, despite long being a textbook justification for punishing individuals, does not bear on the criminal law of corporations.

In this Article, I argue that incapacitation both can and should serve as a justification for punishing criminal corporations.  Descriptively, I interrogate how rote appeals to the impossibility of corporate imprisonment obscure more pressing, challenging questions about whether and to what extent the criminal law can vindicate an account of incapacitation that extends to corporate persons.  Excavating a richer conceptual framework for incapacitation from our practices of individual punishment, I demonstrate that sanctions we already impose in or just outside the criminal law can be better understood as efforts to incapacitate, rather than to deter or rehabilitate, a criminal corporation. Indeed, reevaluating our understanding of penal incapacitation provides reason to think that we have similar and perhaps stronger reasons for incapacitating corporate persons than we do individuals.

Prescriptively, I leverage this comparative framework to argue that incapacitation should be recognized as a core justification for corporate punishment.  Although rehabilitation has gained traction in past decades as a basis for punishing corporations, incapacitation stands as a more realistic, more administrable, alternative.  This is because a principle of rehabilitation has led to a practice of imposing on corporations intricately designed, but dubiously effective, compliance and internal governance reforms.  Incapacitation, by contrast, lends itself to clear, discrete prohibitions for which the criminal law is better situated to justify, impose, and monitor.

September 28, 2018 in Offender Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Monday, September 24, 2018

The latest controversy over a lenient sentence involving sexual assault comes from Alaska

This lengthy new Washington Post article provides a detailed review of a lenient Alaska sentencing causing a stir.  The article is headlined "A man accused of kidnapping and masturbating on a woman got a ‘pass.’ Now people want the judge and prosecutor out." Here are excerpts:

Hours after Elizabeth Williams learned last week that Justin Schneider wouldn’t spend a day in jail, she turned to Facebook to channel her outrage. 

The Anchorage social worker didn’t know Schneider, 34, before he was arrested in August 2017 after police said he offered a woman a ride from a gas station, stopped on the side of a road and asked her to step out under the pretense of loading items into the car, then choked her until she lost consciousness and masturbated on her.  Nor did Williams know the victim in the case, identified only as a 25-year-old Native woman who called police after the assault.

What she was familiar with was how the case ended: Schneider pleaded guilty to one count of second-degree felony assault in exchange for the dismissal of his other assault, kidnapping and harassment charges. He was sentenced Wednesday to two years in prison, the maximum for that charge, with one year suspended.

However, Schneider was given credit for a year under house arrest, meaning he would not serve additional time in prison. He will instead be required to continue wearing an ankle monitor and participate in a treatment program. “I was just absolutely appalled,” she told The Washington Post.

Soon afterward, Williams learned that Alaska voters were slated to decide whether the judge in the case should be retained on the Anchorage Superior Court in the November elections. And so, Thursday morning, Williams started a Facebook page: “NO retention for Judge Michael Corey,” she named it....

Many in the group also directed their anger at Anchorage Assistant District Attorney Andrew Grannik, the prosecutor in the case, who said he had made the plea deal because Schneider had no prior criminal record and seemed amenable to rehabilitation, according to the Alaska Star.

Grannik said in court that he had “reasonable expectations” that Schneider would not offend again. “But I would like the gentleman to be on notice that that is his one pass. It’s not really a pass, but given the conduct, one might consider that it is,” Grannik said then.

On social media, people seized on the “one pass” comment and demanded that Grannik be given the boot along with the judge.

Meanwhile, Alaska state officials have acknowledged the outrage but said that, while Schneider’s conduct was “very disturbing,” Corey and Grannik were constrained by sentencing laws. “Both the governor and the attorney general think what occurred in this case was unacceptable in terms of the current state of the law,” said Cori Mills, a senior assistant attorney general in the Alaska Department of Law. “The law needs to be changed.”

Under Alaska statute, the definition of sexual contact encompasses only direct physical contact with genitals, buttocks, female breasts or the anus — not semen.  In other words, despite the accusation that Schneider ejaculated on the woman, he could be charged only with harassment in the first degree, which is not a sex offense, according to state Deputy Attorney General Rob Henderson.

He reiterated what the Alaska Criminal Division director stated Friday, in the face of strong backlash over the sentence: State officials had feared that the kidnapping charge, the most serious of the counts, could not have been proved beyond a reasonable doubt if the case had gone to trial because Schneider’s victim had willingly entered his vehicle.

Given that, Henderson said, the prosecution would have been left to pursue lesser charges that, even if they had resulted in convictions, would not have forced Schneider to enter sex offender treatment. “Because the state realized there was a need for sex offender treatment, the only way to obtain that requirement was to get him to agree to it" in a plea deal, Henderson said. “When you have sex offender treatment, you have to have some type of leverage or incentive to compel the person to complete the treatment.”...

In the wake of the case, Alaska Gov. Bill Walker (I) said he planned to propose legislation that would make “causing unwanted contact with semen” a sex offense.  If successful, the penalty for a first-time offense would carry jail time of two to 12 years and require registering as a sex offender.  However, the Alaska legislature does not convene until January, so any fix to the loophole would be months away at the earliest.

Williams, who started the Facebook page calling for the judge’s ouster, said she agreed with the proposed loophole fix and understood the sentencing constraints the judge and prosecutor were under.  However, she wished that the judge had sentenced Schneider to some jail time — or that the case had been taken to trial, even if it meant risking that Schneider would be acquitted of all charges...

The Alaska Star reported that Schneider’s victim was not at the hearing and had, according to police, been traumatized “to the point where she couldn’t hardly speak” after the assault. Details about the case were graphic enough that some local news outlets placed editor’s notes at the tops of their stories warning readers.

The victim “said she could not fight him off, he was too heavy and had her down being choked to death,” Anchorage police Detective Brett Sarber wrote in a criminal complaint obtained by KTVA News last year. “[She] said she lost consciousness, thinking she was going to die.”  When she regained consciousness, the man zipped up his pants, gave her a tissue and “told her that he wasn’t really going to kill her, that he needed her to believe she was going to die so that he could be sexually fulfilled,” Sarber wrote in the complaint.

September 24, 2018 in Purposes of Punishment and Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (3)

"Extending 'Dignity Takings': Re-Conceptualizing the Damage Caused by Criminal History and Ex-Offender Status

The title of this post is the title of this new paper authored by Jamila Jefferson-Jones now available via SSRN. Here is the abstract:

The consequences of a criminal conviction extend far beyond “time served”: Ex-offenders often face social and civil stigmas and disabilities that continue for the rest of their lives.  These collateral consequences cause real harm to the reputation, dignity, and livelihood that can be difficult to quantify in the strictly economic analysis used in traditional constitutional takings analysis.  These collateral consequences are a form of dignity taking which deprive the ex-offender of their status as a full member of society.  Bernadette Atuahene originated the idea of “dignity takings”, eventually settling on a definition that combines a traditional government taking of property with an outcome of dehumanization or infantilization.  Scholars have applied this analysis to a number of cases of tangible property, but have only just begun to expand it into the criminal justice and reputational harm cases.

By applying the framework of dignity takings to the difficulties faced by ex-offenders in their reentry to society, I will demonstrate how we can better express the harms caused by the collateral consequences of conviction.  By doing so, we can focus our attention not on economic damage and restitution, but the restoration of lost dignity and humanity.

September 24, 2018 in Collateral consequences, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (3)

Sunday, September 23, 2018

Two exciting DEPC events this coming week

In separate prior posts here and here, I noted two substantive events scheduled this week involving the new OSU Drug Enforcement and Policy Center (which I help direct).  I am quite excited about both events, the first of which is in DC on Sept 25, the second of which is in Columbus on Sept 27 to 28.  Here are the titles of the events, descriptions, and links to registration pages:

 

"Laboratories of Democracy: Drug Policy In The United States" (September 25 in Washington, DC):

Drug use and substance abuse are circumstances that no longer impact only a small percentage of our population. In 2016, over 20 million Americans dealt with a substance use disorder, and the CDC estimates that more than 10 percent of the American population use some form of illegal drug each month. The Bureau of Justice Statistics estimates that 58 percent of those in state prisons and 63 percent of those sentenced to state jails meet the medical criteria for drug dependence or abuse.

The Ohio State University’s newly established Drug Enforcement and Policy Center (DEPC), with support from the Charles Koch Foundation, will host Laboratories of Democracy: Drug Policy in the United States. This important event will bring together leading academics, members of law enforcement, policymakers, think tank scholars, community advocates, media figures, and other influencers from different spheres and perspectives to discuss the diverse and challenging policy questions that have emerged in the drug policy area.

The event will be held at The Willard InterContinental in Washington, DC on September 25, 2018 from 9:00 am until 3:00 pm. The experts speaking at this event have used their knowledge to propose positive drug policy solutions to tackle the difficult problems faced by our country, and the program will engage attendees in an action-oriented discussion on how our country can move forward with positive solutions to addiction and substance abuse.

More details about and registration for this event are available here and here.  

 

"From Punishment to Public Health: Embracing Evidence-Based Solutions to End the Overdose Crisis" (September 27-28 in Columbus, OH):

This conference aims to explore the impact of criminal justice laws and policies in compounding drug use harms, including overdose deaths, and offer an alternative framework for addressing problematic drug use and drug-related fatalities that is rooted in evidence, compassion, and the principles of harm reduction.

The country is in the middle of a tragic increase in drug overdose deaths and Ohio is at the epicenter of the overdose crisis. According to new preliminary estimates for 2017 from the Center for Disease Control, the country has suffered a record 72,000 overdose deaths, with Ohio’s rate of overdose deaths increasing by more than 17%.  In 2016, Ohio ranked second in the nation in drug overdose death rates (at 39.1 per 100,000) and third in the nation in total number of deaths (4,329).  Ohio is losing nearly 12 citizens each day to a drug overdose.

Responses to the overdose crisis across the nation and within the state have been mixed.  There has been a renewed emphasis on treatment, expanded access to the overdose antidote naloxone, and the passage of Good Samaritan laws that offer protection to those calling for help during an overdose. Health officials in Ohio are even engaging in serious discussions of previously-taboo harm reduction interventions, such as drug checking strips.  Nonetheless, use of the criminal justice system continues to dominate local, state, and federal responses to increasing rates of opioid use and overdose. Ohio, for instance, charges more people with manslaughter for delivery of a controlled substance resulting in death than any other state except one.  Local and state elected officials have proposed legislation that would increase penalties for fentanyl, create a specific drug-induced homicide offense, and refuse medical assistance after a third overdose.  Resources for supply side interventions are dwarfing those dedicated to evidence-based interventions like community-based naloxone or syringe exchange.

In this conference hosted by the Drug Policy Alliance, Ohio State University Moritz College of Law Drug Enforcement and Policy Center, Harm Reduction Ohio, and ACLU-Ohio along with partners Harm Reduction Coalition, The Ohio Alliance for Innovation in Population Health and the Ohio State College of Public Health, we will explore why a public health approach to problematic drug use and overdose is critical to reducing needless deaths and other harms and why punitive measures can be counterproductive and destructive. Local, national, and international expert panelists will articulate why and how we can reverse course in our response to the overdose crisis by embracing and applying evidence and the principles of harm reduction rather than principles of punishment.  In so doing, panelists will also dispel common myths about what is effective and what is not based on research, science, and experience.

More details about and registration for this event are available here and here.

September 23, 2018 in Drug Offense Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Friday, September 21, 2018

Spotlighting ever-increasing overdose casualties amidst the last four decades of the war on drugs

F2.largeA new article in Science presents some notable data and observations about drug overdoses over the last 40 years in the US.  This article by six public health researchers is titled "Changing dynamics of the drug overdose epidemic in the United States from 1979 through 2016." Here is its full abstract:

INTRODUCTION

The epidemic of substance use disorders and drug overdose deaths is a growing public health crisis in the United States.  Every day, 174 people die from drug overdoses. Currently, opioids (including prescription opioids, heroin, and synthetic opioids such as fentanyl and its chemical analogs) are the leading cause of overdose deaths.  The overdose mortality data can reveal the complex and evolving dynamics of drug use in the United States.

RATIONALE

Reports on the U.S. drug overdose epidemic tend to focus on changes in yearly statistics. Improved understanding of the long-term dynamics of the overdose epidemic may aid in the development of more effective epidemic prevention and control strategies.  At present, there are no reliable methods to forecast the likely future course of the epidemic. We focused on deaths from overdoses as a relatively reliable metric of the epidemic because all deaths are required to be reported in all U.S. states and territories using the standardized International Classification of Diseases.  In an effort to understand the epidemic dynamics and perhaps predict its future course, we analyzed records of 599,255 deaths from 1979 through 2016 from the National Vital Statistics System where unintentional drug poisoning was identified as the main cause of death.  We examined the time course of the overall number of deaths; the contributions of individual drugs (prescription opioids, heroin, synthetic opioids like fentanyl, methadone, cocaine, methamphetamine) to the overall curve; changes in the populations most affected by each drug as measured by demographic factors of age, sex, race, and urbanicity; and changes in the geographic distribution of deaths due to each drug as measured by the county of residence of each decedent.

RESULTS

The overall mortality rate for unintentional drug poisonings in the United States grew exponentially from 1979 through 2016.  This exponentially increasing mortality rate has tracked along a remarkably smooth trajectory (log linear R2 = 0.99) for at least 38 years (left panel). By contrast, the trajectories of mortality rates from individual drugs have not tracked along exponential trajectories.  Cocaine was a leading cause in 2005–2006, which was overtaken successively by prescription opioids, then heroin, and then synthetic opioids such as fentanyl. The demographic patterns of deaths due to each drug have also shown substantial variability over time.  Until 2010, most deaths were in 40- to 50-year-old persons, from cocaine and increasingly from prescription drugs. Deaths from heroin and then fentanyl have subsequently predominated, affecting younger persons, ages 20 to 40 (middle panel).  Mortality rates for males have exceeded those for females for all drugs. Rates for whites exceeded those for blacks for all opioids, but rates were much greater among blacks for cocaine.  Death rates for prescription drugs were greater for rural than urban populations. The geographic patterns of deaths also vary by drug. Prescription opioid deaths are widespread across the United States (right panel), whereas heroin and fentanyl deaths are predominantly located in the northeastern United States and methamphetamine deaths in the southwestern United States. Cocaine deaths tend to be associated with urban centers. The online manuscript provides many details of the patterns of mortality in these data.

CONCLUSION

The U.S. drug overdose epidemic has been inexorably tracking along an exponential growth curve since at least 1979.  Although there have been transient periods of minor acceleration or deceleration, the overall drug overdose mortality rate has regularly returned to the exponential growth curve.  This historical pattern of predictable growth for at least 38 years suggests that the current opioid epidemic may be a more recent manifestation of an ongoing longer-term process.  This process may continue along this path for several more years into the future. Paradoxically, there has been substantial variability with which specific drugs have become dominant in varying populations and geographic locales.  This variability all but negates the possibility of confident predictions about the future role of specific drugs.  Indeed, it is possible that a future overdose epidemic may be driven by a new or obscure drug that is not among the leading causes of drug overdose death today. Understanding the forces that are holding multiple subepidemics together onto a smooth exponential trajectory may be important in revealing, and effectively dealing with, the root causes of the epidemic.

Critically, this article makes no effort to suggest any link between overdose data and modern criminal law enforcement efforts described as the "war on drugs." But I still find remarkable that these data in the article start with a relatively low overdose rate right before the Reagan Administration kicked the war on drugs into high gear. If preventing or reducing deaths from drug overdoses is one goal of the the drug war, this article spotlights just how poorly we have been doing on this particular front of the war over the last four decades.

Recent prior related post:

September 21, 2018 in Data on sentencing, Drug Offense Sentencing, National and State Crime Data, Purposes of Punishment and Sentencing | Permalink | Comments (1)

Wednesday, September 19, 2018

"A Way Out: Abolishing Death By Incarceration in Pennsylvania"

AlcThe title of this post is the title of this lengthy new report released this week by the Abolitionist Law Center.  Here are excerpts from its executive summary:

Over the last 25 years, the number of people serving life-without-parole, or death-by-incarceration (DBI), sentences in the United States has exploded from 12,453 people in 1992 to over 53,000 people today — 10% of whom are incarcerated in Pennsylvania.

With over 5,300 people sentenced to DBI and one of the highest per capita DBI sentencing rates in the country, Pennsylvania stakes a strong claim as the U.S. and world leader in this distinctively harsh form of punishment and permanent exclusion of its citizens. Philadelphia, with nearly 2,700 people serving DBI sentences, is the world’s leading jurisdiction in sentencing people to die in prison —more than any county or parish in the United States and far more than any individual country in the world.

In 1974, fewer than 500 people were serving DBI sentences in Pennsylvania.  As of September 2017, 5,346 people are serving death-by-incarceration sentences in Pennsylvania. Despite a 21% decline in violent crime between 2003 and 2015, Pennsylvania’s population of people sentenced to DBI has risen by 40% between 2003 and 2016.6 Pennsylvania ranks near the top of every measure of DBI sentences across the country....

Like most measures of the criminal legal system, death-by-incarceration sentences disproportionately impact communities of color.  Black Pennsylvanians are serving death-by-incarceration sentences at a rate more than 18-times higher than that of White Pennsylvanians.

Latinx Pennsylvanians are serving DBI sentences at a rate 5-times higher than White Pennsylvanians. Racial disparities in DBI sentences are even more pronounced than among the overall Pennsylvania prison population, in which 47% of those incarcerated are Black, compared to 11% of the state’s population. Of those serving DBI sentences, however, 65% are Black while 25% are White.

Among other interesting aspects of this big report is this introductory note about terminology:

Throughout this report we use the term Death By Incarceration (DBI) when referring to life-withoutparole (LWOP) sentences.  We do this for several reasons.  First, it is the preferential term selected by incarcerated people that we work with who are serving these sentences, and we are a movement-lawyering organization that is accountable to the movements we work with.  Second, it focuses on the ultimate fact of the sentence, which is that the only way it ends, barring extraordinary relief from a court or the Board of Pardons, is with death.  Third, DBI invokes the social death experienced by the incarcerated, as they are subject to degraded legal status, diminished rights, excluded from social and political life, tracked with an “inmate number” like a piece of inventory, and warehoused for decades in this subjugated status.  Finally, although DBI in this report is used to refer to LWOP sentences, the DBI label indicates that our concern is not merely with LWOP sentences, but inclusive of other term-of-years sentences that condemn a person to die in prison.

September 19, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1)

Tuesday, September 18, 2018

The latest argument for "overhauling the [DEA], or even getting rid of it entirely."

Leo Beletsky and Jeremiah Goulka has this new New York Times commentary under the headline "The Federal Agency That Fuels the Opioid Crisis: The Drug Enforcement Administration has proved itself incompetent for decades."  Here is how it starts and ends:

Every day, nearly 200 people across the country die from drug overdoses.  Opioids have been the primary driver of this calamity: first as prescription painkillers, then heroin and, more recently, illicitly manufactured fentanyl.  The death toll has risen steadily over the past two decades.

The Drug Enforcement Administration, the agency that most directly oversees access to opioids, deserves much of the blame for these deaths.  Because of its incompetence, the opioid crisis has gone from bad to worse.  The solution: overhauling the agency, or even getting rid of it entirely.

The problem begins with poor design.  A brainchild of Richard Nixon’s “war on drugs,” the agency sought to cut off supplies of drugs on the black market, here and abroad. But in passing the Controlled Substances Act of 1970, Congress also gave the agency broad authority over how prescription opioids and other controlled substances were classified, produced and distributed.  The agency was supposed to curb problematic drug use, but failed to do so because its tactics were never informed by public health or addiction science.

Despite the investment of hundreds of billions of taxpayer dollars and the earnest efforts of thousands of employees, the D.E.A.’s track record is abysmal. The agency has been unable to balance legitimate access to and control of prescription drugs.  The widespread over-reliance on opioids, along with benzodiazepines, amphetamines and other scheduled medications, has created a booming black market.

The agency’s enforcement strategies, and the support it has lent to local and state police departments, have also fueled abusive police tactics including dangerous no-knock-raids and ethnic profiling of drivers.  It has eroded civil liberties through the expansion of warrantless surveillance, and overseen arbitrary seizures of billions of dollars of private property without any clear connection to drug-related crimes.  These actions have disproportionately targeted people of color, contributing to disparities in mass incarceration, confiscated property, and collective trauma....

We urgently need to rethink how our nation regulates drugs.  What should our goals be?  How can we design institutions and performance metrics to achieve them?

The answers lie at the local and state levels.  In Rhode Island, opioid overdoses are declining because people behind bars have access to effective treatment. Massachusetts has deployed drop-in centers offering treatment, naloxone and other services.  San Francisco and Seattle are planning to open safe consumption spaces which show tremendous promise as a tool to reduce overdose deaths and other drug-related harm.  But the D.E.A. and its institutional parent, the Justice Department, stand in the way of some of these experiments.

We ought to reinvent the Drug Enforcement Administration. Considering its lack of public health and health care orientation, the agency’s regulatory authority over the pharmaceutical supply could be transferred to a strengthened and independent Food and Drug Administration, while the regulation of medical and pharmacy practice can be ceded to the states.  Parts of the D.E.A.’s law enforcement mandate should be transferred to the F.B.I., delegated back to the local or state, or eliminated.  A significant portion of the D.E.A.’s budget should be reinvested in lifesaving measures like access to high-quality treatment.

The Drug Enforcement Administration has had over 40 years to win the war on drugs.  Instead its tactics have fueled the opioid crisis.  To finally make a dent in this national emergency, we need to rethink the agency from the bottom up.

Perhaps unsurprisingly, the suggestion to consider abolishing DEA is not novel. A quick google search turned up these other recent like-minded commentary (among others):

September 18, 2018 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (2)

"From Punishment to Public Health: Embracing Evidence-Based Solutions to End the Overdose Crisis"

The title of this post is the title of this exciting event taking place at The Ohio State University Moritz College of Law in Columbus, Ohio at the end of next week. OSU's newly established Drug Enforcement and Policy Center (DEPC) is co-hosting this two-day gathering, and here is the conference description from the full conference agenda:

This conference aims to explore the impact of criminal justice laws and policies in compounding drug use harms, including overdose deaths, and offer an alternative framework for addressing problematic drug use and drug-related fatalities that is rooted in evidence, compassion, and the principles of harm reduction.

The country is in the middle of a tragic increase in drug overdose deaths and Ohio is at the epicenter of the overdose crisis. According to new preliminary estimates for 2017 from the Center for Disease Control, the country has suffered a record 72,000 overdose deaths, with Ohio’s rate of overdose deaths increasing by more than 17%.  In 2016, Ohio ranked second in the nation in drug overdose death rates (at 39.1 per 100,000) and third in the nation in total number of deaths (4,329).  Ohio is losing nearly 12 citizens each day to a drug overdose.

Responses to the overdose crisis across the nation and within the state have been mixed.  There has been a renewed emphasis on treatment, expanded access to the overdose antidote naloxone, and the passage of Good Samaritan laws that offer protection to those calling for help during an overdose. Health officials in Ohio are even engaging in serious discussions of previously-taboo harm reduction interventions, such as drug checking strips.  Nonetheless, use of the criminal justice system continues to dominate local, state, and federal responses to increasing rates of opioid use and overdose. Ohio, for instance, charges more people with manslaughter for delivery of a controlled substance resulting in death than any other state except one.  Local and state elected officials have proposed legislation that would increase penalties for fentanyl, create a specific drug-induced homicide offense, and refuse medical assistance after a third overdose.  Resources for supply side interventions are dwarfing those dedicated to evidence-based interventions like community-based naloxone or syringe exchange.

In this conference hosted by the Drug Policy Alliance, Ohio State University Moritz College of Law Drug Enforcement and Policy Center, Harm Reduction Ohio, and ACLU-Ohio along with partners Harm Reduction Coalition, The Ohio Alliance for Innovation in Population Health and the Ohio State College of Public Health, we will explore why a public health approach to problematic drug use and overdose is critical to reducing needless deaths and other harms and why punitive measures can be counterproductive and destructive. Local, national, and international expert panelists will articulate why and how we can reverse course in our response to the overdose crisis by embracing and applying evidence and the principles of harm reduction rather than principles of punishment.  In so doing, panelists will also dispel common myths about what is effective and what is not based on research, science, and experience.

More details about and registration for this event are available here and here.

September 18, 2018 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Sunday, September 16, 2018

"A Defense of Modern Risk-Based Sentencing"

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

In theory, accurate assessments of offender risk can save money, promote efficient allocation of correctional resources, and better protect the public.  In pursuit of these goals, some jurisdictions have begun using structured means of assessing relative risk.  This article briefly describes modern risk assessment instruments, the reasons why they might be preferred over traditional means of assessing risk, and three principles — the fit, validity and fairness principles — that should govern their use.  It then contends that, when limited by these or similar principles, criminal justice dispositions can justifiably be based on assessments of risk, despite concerns about their reliability, consistency and legitimacy.

Inaccuracy and disparity is as prevalent in desert-based sentencing as it is in risk-based sentencing.  More importantly, desert-based sentencing is not as consistent with, and risk-based sentencing is not as inimical to, autonomy and dignity values as is commonly thought.  The overall goal of these arguments is to defend modern risk-based sentencing against abolitionist proposals that could do more harm than good, both to offenders and to a punishment system that, at least in the United States, is obscenely harsh.

September 16, 2018 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Saturday, September 15, 2018

"A Reparative Approach to Parole-Release Decisions"

The title of this post is the title of this paper authored by Kristen Bell recently posted to SSRN. Here is its abstract:

Scholars have argued for enhanced procedural protections at parole hearings, but for the most part without a focus on what substantive criteria ought to guide parole-release decisions.  I undertake this normative project, first describing the approach to parole-release decision criteria from the perspective of four standard theories of punishment: retributive theory, deterrence theory, rehabilitation theory, and communicative theory.  I argue that each of the respective criteria flowing from these theories of punishment is morally objectionable on two grounds: failure to respect the agency of prisoners, and failure to take seriously the limits of our knowledge.  After setting forth these theories and the objections to which they are subject, I turn to draw lessons from how California’s parole-release system functions in practice.

Drawing on both the theoretical and practical perspectives on parole-release criteria, I argue in favor of a fundamental change.  I propose a “reparative approach” that builds on aspects of restorative justice and takes seriously respect for the moral agency of prisoners, victims, and the broader political community.  On this approach, people directly affected by the crime join with others at the outset of a prisoner’s sentence to deliberate and decide upon reasonably achievable criteria that the prisoner would need to meet in order to be released.  At the end of the prisoner’s judicially prescribed period of incarceration, the release decision would then be a ministerial determination of whether the prisoner has in fact met the criteria that were decided upon at the outset.  I leave for future work the question of whether and how such a policy could be implemented in the context of the contemporary American criminal justice system.

September 15, 2018 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (1)

Tuesday, September 11, 2018

"Digital Expungement"

The title of this post is the title of this paper I just saw on SSRN authored by Eldar Haber.  Here is its abstract:

Digital technology might lead to the extinction of criminal rehabilitation.  In the digital era, criminal history records that were expunged by the state remain widely available through commercial vendors (data brokers) who sell this information to interested parties, or simply through a basic search of the Internet.  The wide availability of information on expunged criminal history records increases the collateral consequences a criminal record entails, thereby eliminating the possibility of reintegration into society. Acknowledging the social importance of rehabilitation, policymakers attempted to regulate the practices of data brokers by imposing various legal obligations and restrictions, usually relating to the nature and accuracy of criminal records and the purposes for which they may be used.  These regulations have been proven insufficient to ensure rehabilitation. But regardless of future outcomes of such regulatory attempts, policymakers have largely overlooked the risks of the Internet to expungement.  Many online service providers and hosting services enable the wide dissemination and accessibility of criminal history records that were expunged.  Legal research websites, websites that publish booking photographs taken during an investigation (mugshots), social media platforms, and media archives all offer access to expunged criminal histories, many times without charge, and all with the simple use of a search engine. Without legal intervention, rehabilitation in the digital age in the U.S. has become nearly impossible.

This Article offers a legal framework for reducing the collateral consequences of expunged criminal records by offering to re-conceptualize the public nature of criminal records. It proceeds as follows.  After an introduction, Part II examines rehabilitation and expungement as facets of criminal law.  Part III explores the challenges of digital technology to rehabilitation measures.  Part IV evaluates and discusses potential ex-ante and ex-post measures that could potentially enable rehabilitation in the digital age.  It argues that while ex-post measures are both unconstitutional and unrealistic for enabling digital expungement, ex-ante measures could be a viable solution.  Accordingly, this Article suggests implanting a graduated approach towards the public nature of criminal history records, which would be narrowly tailored to serve the interests of rehabilitation-by-expungement. Finally, the last Part concludes the discussion and warns against reluctance in regulating expunged criminal histories.

September 11, 2018 in Collateral consequences, Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Reentry and community supervision, Technocorrections | Permalink | Comments (0)

Friday, September 07, 2018

"Mitigation is Difficult: A Moral Evaluation of a Mitigation Practice at Sentencing"

The title of this post is the title of this interesting-looking new paper just posted to SSRN authored by Allan McCay.  Here is its abstract:

In this paper I presuppose that blame and retributive punishment can be deserved, and construct a theory that is intended to morally evaluate the mitigation practices of criminal justice systems, using insights about the assessment of degrees of blameworthiness found in the work of Dana Nelkin, in conjunction with David Hodgson’s views on self-formation. After using the theory to evaluate an actual mitigation practice, I note that as a result of the complexity of any fully satisfactory theory, there is an epistemic problem inherent in the assessment of pleas in mitigation that means that even moderately competent evaluation of such pleas may be beyond the capacities of humans.  I argue that this epistemic issue presents a problem for retributive practices, such as those found in many criminal justice systems.

September 7, 2018 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (1)

Sunday, September 02, 2018

After 40+ years as a senator, Orrin Hatch now expresses concerns about acquitted conduct to promote Judge Kavanaugh's elevation

I am always pleased when politicians show a willingness to "evolve" on various issues, especially when they evolve toward a position that I embrace.  So I am quite pleased to see this lengthy new SCOTUSblog commentary by Senator Orrin Hatch under the headline "Judge Kavanaugh’s fight for stronger jury rights," which assails "basing prison sentences on conduct for which a defendant has been acquitted by a jury." I recommend the piece in full, and these particular passages justify both praise and follow-up questions:

Kavanaugh’s decisions have spanned the full spectrum of cases and controversies, including those that impinge on the liberty of some of the most overlooked individuals in America — criminal defendants.  One example, especially important to me, is his objection to basing prison sentences on conduct for which a defendant has been acquitted by a jury.  It’s a practice as outrageous as it sounds....

Every single circuit court has found it “reasonable” for a judge to enhance a sentence based on acquitted conduct. This follows the Supreme Court’s 1997 decision in United States v. Watts, which upheld the use of acquitted conduct against a double jeopardy challenge because “a jury’s verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence.”  The court thought that statutory sentencing ranges would keep sentences proportional to the convicted offenses. But the broad ranges embraced by our criminal code make it easy to separate crime from its punishment....

In the current system, a judge can inflate a defendant’s sentence for a convicted crime to make up for the jury’s decision to acquit him of a separate charge.  Judges should not wield that kind of veto.

​I’m troubled by the consequences this has on the venerated role of juries in criminal justice.  Beyond these policy problems, which are in my purview as a legislator, are constitutional concerns, which have rankled Kavanaugh’s judicial sensibilities. His understanding of the Fifth and Sixth Amendments has caused him to question why “many key facts used to calculate the sentence are still being determined by a judge under a preponderance of the evidence standard, not by a jury beyond a reasonable doubt.”...

I find it remarkable that Kavanaugh, despite his open campaign against the use of acquitted conduct at sentencing, has rebuffed the easy temptation of judicial activism. In the 2015 case United States v. Bell, he agreed that current precedent prevented the D.C. Circuit from reviewing the issue. The only appropriate action, he said, was for sentencing judges to think twice before choosing to consider acquitted conduct.  Only a few months ago, he again wrote separately in an acquitted-conduct case to reaffirm that precedent tied his hands, dissenting in part in United States v. Brown. But he didn’t abandon his drumbeat for change through the proper channels. He concluded, “If th[e] system seems unsound — and there are good reasons to be concerned about the use of acquitted conduct at sentencing, both as a matter of appearance and as a matter of fairness — Congress and the Supreme Court may fix it, as may individual district judges in individual cases.”...

​The Supreme Court’s evolving jurisprudence on the appropriate roles of judge and jury as factfinders for the purpose of sentencing has dovetailed with my own reconsideration of the use of acquitted conduct at sentencing. In the past, I have been supportive of considering all relevant conduct at sentencing, including acquitted conduct.  But Kavanaugh and others have convinced me that this practice must end — as a matter of fundamental fairness if not of constitutional law.  I plan to soon introduce the Acquitted Conduct Sentencing Reform Act, which will stop judges from punishing defendants for crimes for which a jury found them “not guilty.”  The contours of civilization require fairness in our criminal justice system, and the Constitution demands that American men and women hold prosecutors and judges accountable. The role of the jury is central to the Constitution’s protection of individual rights, and it is time for Congress to restore power to the people.

​Sure, it would be much easier to let circuit judges reverse sentences that were based on acquitted conduct. Introducing a bill, as I plan to do, can be tedious and hard work. I’m happy to take on the task for an important issue like this, but meanwhile, defendants are serving time for crimes they didn’t do.  It’s frustrating to me, and it’s frustrating to Kavanaugh. But he has prudently declined to step outside of his constitutional role. Time and time again, he has respected precedent and affirmed the repugnant power of sentencing judges to consider acquitted conduct.  However, Kavanaugh has wisely used his judicial platform to shed light on troubling law that shackles the rights of criminal defendants. His legal acumen, compassion, and respect for the judicial role assure me, and should assure you, that he will be an excellent, fair, and faithful justice.

I could not be more thrilled to hear a prominent experienced Senator calling acquitted conduct sentencing "outrageous" and asserting that "this practice must end."  I am also over the moon to hear that Senator Hatch is soon to introduce the "Acquitted Conduct Sentencing Reform Act," and I sincerely hope some folks have the sense to try to role it into the on-going federal prison and sentencing reform bills working their way through Congress. 

But I have to ask, as follow-up question number one for Senator Hatch, what took you so long?  The ugliness of acquitted conduct sentencing has been on full display since the 1997 Watts decision and your commentary here also references the 2014 dissent from certorari by Justice Antonin Scalia in an acquitted conduct case.  And Judge Kavanaugh has been calling for the barring of acquitted conduct guideline enhancements for nearly a decade.  Moreover, Senator Hatch, you served a chair of the Judiciary Committee at the time Watts was decided and also when Blakely was decided and Booker was before SCOTUS.  For those of use who have long railed against acquitted conduct sentencing, it sure would have been nice to have an ally like you, Senator Hatch, much sooner than a few months before your retirement after more than four decades in charge of helping to make the rules for the federal sentencing system.

That all said, my biggest follow-up question is for every other member of Congress: Are you willing to sign on ASAP to the "Acquitted Conduct Sentencing Reform Act" and commit to making its passage a fitting going-away present for Senator Hatch.  Because I agree with Senator Hatch that acquitted conduct sentencing is "outrageous" and is a practice that "must end," I hope all members of Congress join in on the Senator Hatch acquitted conduct (r)evolution.

A few prior posts with thoughts on sentencing jurisprudence in a post-Justice Kennedy Court:

Previous related posts on the acquitted conduct stressed by Senator Hatch:

September 2, 2018 in Booker and Fanfan Commentary, Booker in the Circuits, Federal Sentencing Guidelines, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (9)

Tuesday, August 28, 2018

"Right at Home: Modeling Sub-Federal Resistance as Criminal Justice Reform"

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

Over the past two decades, state and local governments have crippled the federal war on marijuana as well as a series of federal initiatives designed to enforce federal immigration law through city and county police departments.  This Article characterizes these and similar events as sub-federal government resistance in service of criminal justice reform.  In keeping with recent sub-federal criminal reform movements, it prescribes a process model of reform consisting of four stages: enforcement abstinence, enforcement nullification, mimicry, and enforcement abolition.

The state and local governments that pass through each of these stages can frustrate the enforcement of federal criminal law while also challenging widely-held assumptions regarding the value of criminal surveillance and criminal sanction.  In promoting sub-federal government empowerment within the framework of criminal federalism, this Article breaks from conventional theories in the criminal law literature regarding the legal and policy strategies most likely to deliver fundamental change in American criminal justice.

August 28, 2018 in Pot Prohibition Issues, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Who Sentences | Permalink | Comments (0)

Monday, August 27, 2018

"Capital and punishment: Resource scarcity increases endorsement of the death penalty"

The title of this post is the title of this new paper in the journal Evolution and Human Behavior authored by Keelah Williams, Ashley Votruba, Steven Neuberg, and Michael Saks. Here is its abstract:

Faced with punishing severe offenders, why do some prefer imprisonment whereas others impose death?  Previous research exploring death penalty attitudes has primarily focused on individual and cultural factors.  Adopting a functional perspective, we propose that environmental features may also shape our punishment strategies.  Individuals are attuned to the availability of resources within their environments.  Due to heightened concerns with the costliness of repeated offending, we hypothesize that individuals tend towards elimination-focused punishments during times of perceived scarcity.

Using global and United States data sets (studies 1 and 2), we find that indicators of resource scarcity predict the presence of capital punishment.  In two experiments (studies 3 and 4), we find that activating concerns about scarcity causes people to increase their endorsement for capital punishment, and this effect is statistically mediated by a reduced willingness to risk repeated offenses.  Perceived resource scarcity shapes our punishment preferences, with important policy implications.

August 27, 2018 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Sunday, August 26, 2018

"Trauma and Sentencing: The Case for Mitigating Penalty for Childhood Physical and Sexual Abuse"

The title of this post is the title of this new paper available via SSRN authored by Mirko Bagaric, Gabrielle Wolf and Peter Isham. Here is its abstract:

People who lack guidance when they are young have an increased risk of committing crimes.  The nurturing that many people receive during their formative years can play a key role in the development of appropriate values and behavior.  Yet there is a reluctance to acknowledge the diminished culpability of offenders who have lacked appropriate guidance during their childhood because it is feared that doing so might be perceived as justifying criminal behavior and hence leading to more crime.  The Federal Sentencing Guidelines expressly state that lack of guidance as a youth should not be a mitigating sentencing consideration.  Despite this, approximately half of all federal judges believe that it should reduce the harshness of the penalty that is imposed on offenders. 

In this Article, we examine whether lack of guidance as a youth should serve to reduce the severity of criminal sanctions.  In doing so, we also discuss the position in Australia where an offender’s neglected upbringing can mitigate his or her penalty.  We conclude that a neglected youth should not of itself mitigate penalty because this would make sentencing law too obscure and uncertain.  There is not even an approximate line that can be drawn to demarcate the boundaries between appropriate and inadequate guidance as a youth. 

However, experiences that are commonly associated with being neglected during childhood and often profoundly set back the mental and/or emotional state of children, namely being subjected to physical or sexual abuse, are more concrete in nature and should be a mitigating factor in sentencing.  Empirical evidence demonstrates that people who are subjected to such trauma in their childhood years have an increased risk of subsequently engaging in harmful behavior, such as criminal activity.  Further, relatively clear criteria can be established to demarcate the scope and application of these experiences during childhood for sentencing purposes.  Reforming the law to make childhood sexual and physical abuse a mitigating consideration would improve the doctrinal coherency of the law and may have the incidental benefit of reducing sentences for female offenders generally and for offenders from socio-economically deprived backgrounds, including African Americans.  This reform could be implemented in a manner that does not compromise community safety, provided that it is complemented by targeted, effective rehabilitative measures.

August 26, 2018 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (4)

Monday, August 20, 2018

"America’s Favorite Antidote: Drug-Induced Homicide in the Age of the Overdose Crisis"

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

Nearing the end of its second decade, the overdose crisis in the United States has gone from bad to worse.  Despite the advent of a supposed “public health” approach to this epidemic, progress on scaling up evidence-based prevention and response measures remains slow.  Meanwhile, criminal law and its enforcement continue to dominate the arsenal of policies invoked to address the crisis.

This Article examines the surging popularity of one such approach. Now on the books in the majority of U.S. states and federally, drug-induced homicide laws and their analogues implicate dealers in accidental overdose fatalities.  By engaging criminal law theory and empirical legal research, I articulate an interdisciplinary instrumentalist critique of these measures in response to the overdose crisis.  Data systematically extracted from reports on 263 drug-induced homicide prosecutions informs concerns about facial and as-applied defects.  Patterns identified suggest rapid, accelerating diffusion in these prosecutions in many hard-hit jurisdictions; pronounced enforcement and sentencing disparities by race; and broad misclassification of drug-using partners, family members, and others as “dealers.”

Aside from crowding out evidence-based interventions and investments, these prosecutions run at complete cross-purposes to efforts that encourage witnesses to summon lifesaving help during overdose events.  This analysis illustrates an urgent opportunity to critically re-assess the architecture and mechanisms of drug control in the U.S., reframing criminal justice reform as a public health imperative vital to improving the response to the worst drug crisis in America’s history.

UPDATE: Over at The Crime Report, this short report discusses this article under the headline "Prosecuting Dealers for Opioid Deaths Called ‘Bad Justice Policy’."

August 20, 2018 in Data on sentencing, Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (1)

Saturday, August 18, 2018

"Divided We Fall: Parole Supervision Conditions Prohibiting Inter-Offender Associations"

The title of this post is the title of this new article recently posted on SSRN and authored by James Binnall. Here is the abstract:

In the United States, almost all criminal offenders who serve a term of imprisonment are subject to a period of post-incarceration supervision.  Commonly known as parole, this form of supervision requires former inmates to comply with a variety of conditions.  A nationwide survey of standard parole conditions reveals that a vast majority of jurisdictions categorically restrict parolees’ associations with other parolees, convicted criminals, and/or convicted felons.  These blanket offender no-association conditions ostensibly presume that former offenders are irreparably flawed, homogenous, and that inter-offender relationships are uniformly criminogenic.

This article questions those presumptions, suggesting that offender no-association conditions endorse an untenable conceptualization of former offenders, a rejection of evidence-based parole practices, an uninformed view of inter-offender associations, and a superficial application of criminological theory.  This article further argues that by categorically prohibiting all inter-offender associations, offender no-association conditions foreclose strengths-based approaches to reentry and inhibit mechanisms that can foster criminal desistance. In this way, such conditions unnecessarily subvert the rehabilitative goal of parole, likely making them impermissibly overbroad in their current form.

August 18, 2018 in Collateral consequences, Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (0)

Thursday, August 16, 2018

"Tradeoffs Between Wrongful Convictions and Wrongful Acquittals: Understanding and Avoiding the Risks"

The title of this post is the title of this interesting-looking new paper authored by Paul Cassell now available via SSRN. Here is this abstract:

This article focuses on trade-offs that inhere in the criminal justice system, tradeoffs neatly encapsulated in Blackstone’s famous ten-to-one ratio of guilty persons who should be allowed escape justice rather than an innocent suffer. Blackstone’s aphorism reminds us not only of the importance of ensuring that innocent persons are not convicted, but also that unbounded protections might unduly interfere with convicting the guilty.

In my contribution to a symposium in honor of Professor Michael Risinger, I respond to thoughtful articles written by both Professors Laudan and Zalman and make two main points.  First, in Part I, I turn to Professor Laudan’s policy proposal for reducing the number of wrongful acquittals — e.g., lowering the prosecution’s burden of proof at trial for previously-convicted felons to clear and convincing evidence. This proposal is unconstitutional under existing Supreme Court precedents, which interpret the Constitution to require the prosecutor to prove a defendant’s guilty by proof beyond a reasonable doubt.  And in addition, Laudan has failed to demonstrate that his proposal is cost-beneficial because he has not persuasively articulated a way to weigh the costs of wrongful convictions against those of wrongful acquittals. But I offer a “friendly amendment” to Laudan’s idea. It should be possible to capture almost all of the benefits of his proposal by placing violent felons on extended periods of parole or supervised release — a condition of which would be that they not commit new crimes.  Then, when a previously-convicted felon is arrested for a new crime, he could be tried for a parole violation rather than given a new trial.  Supreme Court precedent allows parole violations to be tried under a lower burden of proof. Reconfigured in this way, there are strong reasons for thinking that the proposal might well be a cost-beneficial way of reducing wrongful acquittals.

In Part II, I challenge Professor Zalman’s claim that he is truly writing from an innocentric perspective.  Someone proceeding from this vantage should be willing to endorse a criminal justice reform measure if it meets three criteria: first and most important, it reduces wrongful convictions of the innocent; second, it does not reduce (and ideally would increase) the number of guilty persons convicted; and third, it should not significantly impair any other competing values.  With these evaluative criteria in mind, Zalman appears to be a mere fair-weather friend of the innocent, as he does not appear to truly privilege innocence over other competing values. In contrast, my reform proposals (which Zalman is reluctant to endorse) reorient the criminal justice system away from adjudicating procedural issues and toward adjudicating substantive issues of guilt or innocence.  The truly innocent will benefit in a system that values substance over procedure — and someone who truly holds an innocentric perspective should endorse reforms that move the criminal justice system in that direction.

August 16, 2018 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (5)

Wednesday, August 01, 2018

"What Is Prison Abolition?"

The title of this post is the headline of this article in The Nation, which carries the subtitle "The movement that is trying to think beyond prisons as a tool to solve society’s problems." Here is an excerpt:

The prison-abolition movement is a loose collection of people and groups who, in many different ways, are calling for deep, structural reforms to how we handle and even think about crime in our country.  There are de facto figureheads (such as Angela Davis and Ruth Wilson Gilmore, the most famous contemporary abolitionists) and organizations (such as Critical Resistance, INCITE!, the Movement for Black Lives, the National Lawyers Guild, and Incarcerated Workers Organizing Committee — all of which, if not explicitly abolitionist, at least engage in abolitionist ethics), and there are converging or at least overlapping political ideologies (anarchist, socialist, libertarian), but there is no structured organizing group or coalition.  Masai Ehehosi, a co-founder of Critical Resistance and longtime member of the New Afrikan Independence Movement, pointed me to the overlap between organizations promoting civil rights and abolitionists: “We want freedom” can just as easily be applied to ending Jim Crow or the New Jim Crow, to unlocking iron shackles or swinging open prison doors.

The “movement” thus operates with affinity groups, with various organizations working in prisoner support, prisoner advocacy, political advocacy, or community education. “And when something big happens,” as Azzurra Crispino, prison labor activist and philosopher, explained to me, “we all show up as a coalition, and we don’t interfere” with each other’s work.

Abolitionists believe that incarceration, in any form, harms society more than it helps.  As Angela Davis argues, prisons are an obsolete institution because they exacerbate societal harms instead of fixing them.  “Are we willing to relegate ever larger numbers of people from racially oppressed communities to an isolated existence marked by authoritarian regimes, violence, disease, and technologies of seclusion that produce severe mental instability?” Davis has written.  Even if we were to greatly diminish the current prison population, even if we were to cut it in half but keep the prison complex intact, we would still be consigning millions of people to isolation and violenc e— and that’s a form of inhumanity that abolitionists can’t abide.  Moreover, Davis contends, mass imprisonment “reproduce[s] the very conditions that lead people to prison.”

August 1, 2018 in Criminal Sentences Alternatives, Prisons and prisoners, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (3)

Tuesday, July 31, 2018

After guilty plea, frat member gets 3 months of house arrest and 27 months of probation for role in hazing death of Penn State pledge

As reported in this AP piece, headlined "Penn State fraternity member gets house arrest in pledge death case," a high-profile college campus tragedy led to a notable state sentencing today in the heart of Pennsylvania.  Here are the details:

A Penn State fraternity member who plied a pledge with vodka the night he was fatally injured in a series of falls avoided jail time Tuesday when a judge sentenced him to three months of house arrest.

Ryan Burke, who had pleaded guilty to four counts of hazing and five alcohol violations, apologized to the parents of Tim Piazza, who died in February 2017 after a night of drinking and hazing in the Beta Theta Pi house. Burke said he was “truly sorry” and accepted responsibility for his role in the events that led to Piazza's death from severe head and abdominal injuries he suffered the night he accepted a pledge bid.

Centre County Judge Brian Marshall also gave Burke 27 months of probation, fined him more than $3,000 and ordered 100 hours of community service. “The court was shocked by what happened that night,” Marshall said, adding he was “mindful that there were many involved.”

Burke's defense attorney, Philip Masorti, said afterward he thought the sentence was fair.  “This was an accident that nobody wanted to happen,” he told Marshall. “It led to a tragic death.”

Burke, 21, of Scranton, is the only one so far to plead guilty in the case, in which more than two dozen members of the now-closed fraternity face charges. A hearing for some others is planned for next month, and trial for at least some will be in February.

Prosecutor Brian Zarallo with the attorney general's office said Burke took a leading role in what occurred, as he led the fraternity's effort to recruit new members and physically led them into a drinking station “gauntlet” that began a night of heavy drinking that was captured on the building's elaborate video security system. Piazza “didn't know what was waiting for him,” that night, Zarallo said. “The defendant did. The defendant knew exactly what was waiting for him.”

He played a videotape in which a ball cap-wearing Burke could be identified plying the wannabe members with a bottle of 80-proof vodka, and said Burke seemed nonchalant about Piazza's medical condition after he endured a bad fall down the basement steps. Burke “can't be bothered” and left Piazza for others to deal with him, Zarallo said, describing his actions as callous.

“This is a big joke to these people,” Zarallo said, telling the judge that five pledges vomited that night and one other injured an ankle.

Piazza's parents, who have become anti-hazing advocates, recounted the horror of being summoned to the hospital to find their son with a range of visible and very severe injuries, not far from the death that would soon follow....  Jim Piazza credited Burke for pleading guilty, but noted that occurred after a judge ruled there was sufficient evidence to send the case to county court for trial....

When Burke was first charged in November, he also was accused of involuntary manslaughter, aggravated assault, simple assault and reckless endangerment, but the attorney general's office dropped the most serious charges in April and a district judge subsequently dismissed some other counts.

This other local article reports that prosecutors were asking for three months of imprisonment. I suspect that what prosecutors sought for a defendant who played a leading role, as well as the actual sentencing imposed, might have a big impact on the various charges still facing the other two dozen members of the fraternity.  It is likely that the sentence given to Burke will end up impacting future plea negotiations as well as any sentences that might be imposed on any defendants convicted after a trial.  In tragic incidents like this one in which is it so hard to know just what kind of sentence is "right" in response to unintended harms, I sense it becomes easier for lawyers and judges to gravitate toward sentences already imposed in related cases.

July 31, 2018 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (3)

"Why Is It Wrong To Punish Thought?"

The title of this post is the title of this new article posted to SSRN authored by Gabriel Mendlow. Here is its abstract:

It’s a venerable maxim of criminal jurisprudence that the state must never punish people for their mere thoughts — for their beliefs, desires, fantasies, and unexecuted intentions. This maxim is all but unquestioned, yet its true justification is something of a mystery.  In this Essay, I argue that each of the prevailing justifications is deficient, and I conclude by proposing a novel one.

The proposed justification captures the widely shared intuition that punishing a person for her mere thoughts isn’t simply disfavored by the balance of reasons but is morally wrongful in itself, an intrinsic (i.e., consequence-independent) injustice to the person punished.  The proposed justification also shows how thought’s immunity from punishment relates to a principle of freedom of mind, a linkage often assumed but never explained. 

In explaining it here, I argue that thought’s penal immunity springs from the interaction of two principles of broad significance: one familiar but poorly understood, the other seemingly unnoticed.  The familiar principle is that persons possess a right of mental integrity, a right to be free from the direct and forcible manipulation of their minds.  The unnoticed principle, which I label the Enforceability Constraint, is that the state’s authority to punish transgressions of a given type extends no further than its authority to thwart or disrupt such transgressions using direct compulsive force.  Heretofore unexamined, the Enforceability Constraint is in fact a signal feature of our system of criminal administration, governing the scope and limits of the criminal law.

July 31, 2018 in Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (2)

The American Conservative explores "What’s Philly’s DA Got to Do With Me?"

In prior posts here and here, I have highlighted an ongoing series of lengthy articles in The American Conservative that are part of "a collaborative series with the R Street Institute exploring conservative approaches to criminal justice reform."    This latest article zeroes in on a notable new figure under the full headline "What’s Philly’s DA Got to Do With Me?: If every city had a Larry Krasner, there might be fewer people in jail who didn't belong there." Here is how the article gets started:

Since taking office he’s stopped prosecuting simple possession of marijuana.  He’s limited civil asset forfeitures only to cases in which there’s a conviction.  He’s directed his assistant district attorneys to include the cost of a prison term in making sentencing recommendations.  Oh, and he’s published a list of 29 local police officers that he views as unreliable witnesses due to their abuse of their powers and other corruption.

For traditional law-and-order types, Philadelphia’s new district attorney, Larry Krasner, might be something of a nightmare.  But for civil libertarians and jail reformers across the political spectrum, he’s putting into practice policies that they’ve been pushing for a long time.

Krasner, who took office in January, styles himself a progressive, but his objectives dovetail closely with those of conservative and libertarian justice reformers.  All share a broader vision of radically reshaping a criminal justice system that is deeply unjust and out of line with American constitutional and moral values.

“I personally think our criminal justice system is thoroughly rotten and it has a number of features that, in my judgment, have so undermined the legitimacy of the criminal justice system and so sharply tilted the playing field in favor of prosecutors and against defendants that is has deprived our criminal justice system of its integrity and its legitimacy,” Clark Neily, the vice president for criminal justice at the Cato Institute, tells The American Conservative.

Prior related posts:

July 31, 2018 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (1)

Sunday, July 29, 2018

How should advocates for reduced prison populations respond to deadly actions by released violent offenders?

In response to recent posts about clemency here and about reducing prison populations here, commentator federalist has flagged two local stories of violent offenders released after relatively short periods of incarceration gong on to commit murder.  One story, out of Atlanta, and is discussed in this newspaper piece under the headlined "‘Visionary’ didn’t keep promises to help violent teenager."  Here is a snippet:

One day last August, Gwendolyn Sands stood before a Fulton County judge and promised to rehabilitate a teenage boy already well on his way to a life of violence.... Her organization, Visions Unlimited, would pair the boy with a “life coach” for “24/7 supervision,” Sands told the judge. Her staff would instruct the boy in life skills, career readiness and the perils of street gangs. They would hold “family support” meetings every month  — “and more often,” Sands said, “as necessary.”

Later, she would even agree to take the boy into her own home.  It seemed the only way to shelter him from the streets where he had stuck a pistol in a woman’s face and robbed her.

But Sands kept almost none of her promises to transform Jayden Myrick.  Now Myrick is charged with murder, accused of shooting 34-year-old Christian Broder during a robbery on July 8 outside Atlanta’s Capital City Club.  Broder, an Atlanta native who lived in Washington, D.C., died July 20.  He left behind a wife and an infant daughter.  And, at 17, Myrick faces life in prison — the very outcome the judge had hoped Sands would help prevent....

Fulton Superior Court Judge Doris Downs, who twice released Myrick into Sands’ custody, declined to comment.  Other court officials would not answer questions about why Downs or other judges trusted Visions Unlimited or whether they vetted Sands’ credentials.  In a statement, Chief Judge Robert McBurney deflected responsibility for monitoring the performance of such organizations.

Another story, out of San Francisco, is discussed in this CNN piece headlined "Officials still don't know why a white man allegedly stabbed a black woman to death in a subway station." Here is an excerpt:

Nia Wilson was standing on a Bay Area Rapid Transit station platform in Oakland, California, Sunday night when she was stabbed to death in an apparently unprovoked attack.

By Monday night, John Cowell, 27, had been arrested in connection to the stabbing, but days later, officials still haven't said what prompted the attack, which a police chief compared to a "prison yard assault."...

Cowell was convicted of second-degree robbery and assault with a deadly weapon in 2016, according to the criminal complaint.  He was paroled in May after being sentenced to two years in prison for second-degree robbery, according to California Department of Corrections and Rehabilitation....

Cowell's family released a statement extending its sympathy to Wilson's, and said Cowell had long been suffering from mental illness.  "He has been in & out of jail & has not had the proper treatment," the statement said.  He's been diagnosed with bipolar disorder and schizophrenia, the family said, and they had to get a restraining order at one point "for our own protection."  Cowell's been living on the streets since.

In one comment, federalist not unreasonably asks "How, Doug, do we prevent mistakes like Judge Downs'?".  I do not have a fully satisfying answer: judges are imperfect at gauging risk, and the only certain way to prevent any and all released offenders from ever committing any serious future crimes is to never release any of them in the first place.  I am drawn to using actuarial risk-assessments in our criminal justice system because such tools should help reduce mistakes in forecasts of future violent behavior, but there still will be mistakes (and violent consequences) even with the use of (inevitably imperfect) risk-assessment instruments. 

As an advocate of various modern criminal justice reforms, I am in this context eager to (a) lament that we do not have been juvenile and prison programming to better rehabilitate violent persons, and (b) note that modern mass incarceration is the result of many "mistakes" of over-incarceration.  But these statements provide cold comfort to anyone reasonably inclined to call the tragic deaths of Christian Broder and Nia Wilson entirely preventable if we had just "gotten tough" with Jayden Myrick and John Cowell.

Another move, of course, is to stress that modern sentencing reform efforts are or should be particularly focused on non-violent offenses and offenders.  But sensible folks arguing for dramatic reductions in our prison populations rightly say that violent offenders should not be excluded from efforts to reduce reliance on incarceration, and there is also recidivism data showing that some non-violent offenders will go on to commit subsequent violent offenses.

So, dear readers, is there a "good" answer to the question in the title of this post?

July 29, 2018 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (27)

Wednesday, July 25, 2018

"Procedural Justice and Risk-Assessment Algorithms"

The title of this post is the title of this article recently posted to SSRN and authored by A.J. Wang. Here is the abstract:

Statistical algorithms are increasingly used in the criminal justice system.  Much of the recent scholarship on the use of these algorithms have focused on their "fairness," typically defined as accuracy across groups like race or gender.  This project draws on the procedural justice literature to raise a separate concern: does the use of algorithms damage the perceived fairness and legitimacy of the criminal justice system?

Through three original survey experiments on a nationally-representative sample, it shows that the public strongly disfavors algorithms as a matter of fairness, policy, and legitimacy.  While respondents generally believe algorithms to be less accurate than either psychologists or statutory guidelines, accuracy alone does not explain their preferences. Creating "transparent" algorithms helps but is not enough to make algorithms desirable in their own right.  Both surprising and troubling, members of the public seem more willing to tolerate disparate outcomes when they stem from an algorithm than a psychologist.

July 25, 2018 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (1)

Monday, July 23, 2018

Spotlighting a remarkably thoughtful federal sentence in a remarkably challenging setting

Over at his blog Simple Justice, Scott H. Greenfield has this terrific new post spotlighting a terrific new sentencing opinion by US District Judge John Kane in US v. Jumaev, No. 12-cr-00033-JLK (D. Col. July 18, 2018) (available here). Because Scott's posting provide effective context and commentary concerning the case and sentencing, I will here just quote the first two paragraphs of Judge Kane's 44-page sentencing decision to clarify the core concern of the opinion:

After his co-defendant Jamshid Muhtorov informed him that the Islamic Jihad Union (IJU) was in need of financial support, Defendant Bakhtiyor Jumaev mailed Mr. Muhtorov $300. Mr. Jumaev wrote only a single check, and the funds never reached the IJU or any other foreign terrorist organization.  Mr. Jumaev had no specific plot or plan and did not intend to further any via his contribution. The idea to aid the terrorist organization was proposed and facilitated entirely by Mr. Muhtorov.  Indeed, Mr. Jumaev had no direct contact with the members of any terrorist organization.  And, significantly, he never committed any act of violence, nor did he advocate for any particular violent act.

Mr. Jumaev now comes before me for sentencing after having been found guilty by a jury of two counts in violation of 18 U.S.C. § 2339B, namely (1) conspiring and (2) attempting to provide material support in the form of $300 to the IJU, a designated foreign terrorist organization.  Although his actions certainly are sufficient for the jury to have found him guilty of these two very serious crimes, the above summary illustrates how his guilt rests on far less culpable conduct than that of all other defendants of which I have been made aware who have been convicted under the same statute.

At the risk of turning this matter into a parlor game, I wonder if readers might be inclined to share, before clicking through to the opinion, their predictions as to (a) the defendant's calculated guideline range, (b) the sentence was urged by federal prosecutors, and/or (c) the sentence imposed by Judge Kane.  Alternatively, I would also love to hear folks' opinions on just what kind of federal sentence someone should get for simply sending, upon request, a $300 check to support the Islamic Jihad Union.

July 23, 2018 in Booker in district courts, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (3)

Sunday, July 22, 2018

"Can a criminal be sentenced to run a 'help desk'?"

The question in the title of this post is the first line of this New York Times article about a high-profile upcoming federal (re)sentencing.  The piece is headlined "What Sentence Should Sheldon Silver Get? His Lawyers Get Creative," and here are excerpts:

Sheldon Silver, the former powerful speaker of the New York State Assembly who was convicted of public corruption charges in May, hopes [he can be sentenced to help-desk duty].

Mr. Silver, 74, is to be sentenced on July 27 in Manhattan, and federal prosecutors asked the judge on Friday to impose a sentence “substantially in excess” of 10 years. But Mr. Silver’s lawyers had a more creative proposal for how he could pay his debt to society.

After a “meaningful custodial sentence,” they suggested, he should be ordered to perform “rigorous” community service, like running a special help desk. In that role, they said, he would be helping New Yorkers “navigate their way through the state bureaucracy to answer their questions, and maximize their chances of receiving benefits to which they may be entitled.” He would be expressing his remorse, they said, and using “his unique skills to assist his fellow New Yorkers.”...

Evidence at the trial showed Mr. Silver obtained nearly $4 million in illicit payments in exchange for taking actions that helped a prominent cancer researcher at Columbia University and two real estate developers.... Mr. Silver, a Democrat, was originally convicted in 2015 and sentenced to 12 years by the judge, Valerie E. Caproni of Federal District Court. After his conviction was overturned on appeal, he was retried this year and found guilty.

“Mr. Silver is a broken man,” his lawyers wrote. “He has been humiliated and disgraced. Most of his assets are gone, either to forfeiture or fine.” But he “is also an intelligent man, with virtually unparalleled knowledge of New York State government,” they noted. Their proposal would allow the judge to exercise discretion “in a way that punishes Mr. Silver, but takes advantage of his unique talents and still affords the possibility of his living the end of his life in freedom.”

To provide a direct answer to the question in the title of this post, I would look to 18 U.S.C. § 3563(b)(12) which states that the court may provide that the defendant work "in community service as directed by the court” as a condition of supervised release. In other words, I think a federal defendant can be sentenced by a federal judge to run a help desk as a form of community service during a period of supervised release. Whether a federal judge will be inclined to do so for Sheldon Silver is another question.

Prior related posts prior to Sheldon Silver's initial sentencing:

July 22, 2018 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (3)

Wednesday, July 18, 2018

"The Vanishing Criminal Jury Trial: From Trial Judges to Sentencing Judges"

The title of this post is the title of this article authored by Robert Conrad, Jr. and Katy Clements published earlier this year that I just came across and that is especially timely in light of the recent NACDL report on the "trial penalty" (discussed here). Here is its abstract:

Federal criminal jury trials are dying.  Surely, but not slowly. Within the ten-year span from 2006 to 2016, the absolute number of cases disposed of by jury trial declined by forty-seven percent.  During the same ten-year span, the portion of defendants’ cases disposed of by jury trial similarly declined by almost forty percent.  Go to the movies, turn on the television, or open a book, and the vanishing trial is not the portrayal of the American criminal justice system you will see.  The media depicts a thriving criminal adjudicatory system full of dramatic human interactions, complex fact patterns, and cathartic resolutions rendered at the hand of the twelve-person, hallowed pillar of American democracy: the jury.

This Article debunks that fiction. The criminal jury trial decline has been occurring since the 1980s.  Yet the primary factors scholars have attributed as responsible for igniting the trial decline no longer predominate.  Prior scholarship has blamed mandatory minimum penalties and mandatory Federal Sentencing Guidelines as the principal agents of the trial decline.  This Article examines the vanishing trial phenomenon in the post-mandatory Guidelines era and discovers startling results.  Despite the Supreme Court making the Guidelines advisory in United States v. Booker in 2005 and a prosecutorial push during the Obama Administration to circumvent charging mandatory minimum penalties, trial numbers continue to rapidly decline.

By tracing trial statistics in the twenty-first century, this Article identifies new factors, largely unexamined in the vanishing trial literature, that have arguably driven trial numbers to even lower levels.  Specifically, the authors contend that Booker, changes in Department of Justice policies, and other extrinsic factors outside the criminal justice system have further marginalized the existence of trials and juries.  The authors lament that the sentencing hearing has replaced the trial as the paramount proceeding in most criminal cases and explore the consequences of plea agreements supplanting the public square openness of trials.  By doing so, the authors hope to embolden the players in the criminal justice system to not go gentle into a trial-less system, but rather, to rage against the dying of the trial light.

July 18, 2018 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (6)

Monday, July 16, 2018

Big Massachusetts Supreme Judicial Court upholds "drug free" condition of probation

The Massachusetts Supreme Judicial Court handed down this morning a decision in the closely-watched case of Massachusetts v. Eldred, No. SJC--12279 (Mass. July 16, 2018) (available here). The opinion starts this way:

Following a probation violation hearing, a judge in the District Court found that the defendant, Julie A. Eldred, had tested positive for fentanyl, in violation of a condition of her probation requiring her to abstain from using illegal drugs. The judge ordered that the conditions of her probation be modified to require her to submit to inpatient treatment for drug addiction. The defendant appeals from that finding and disposition.  The judge also reported a question drafted by the defendant concerning whether the imposition of a "drug free" condition of probation, such as appeared in the original terms of defendant's probation, is permissible for an individual who is addicted to drugs and whether that person can be subject to probation violation proceedings for subsequently testing positive for illegal drugs.

We conclude that, in appropriate circumstances, a judge may order a defendant who is addicted to drugs to remain drug free as a condition of probation, and that a defendant may be found to be in violation of his or her probation by subsequently testing positive for an illegal drug. Accordingly, we affirm the finding that the defendant violated her probation and the order requiring her to submit to inpatient treatment for her addiction.

July 16, 2018 in Criminal Sentences Alternatives, Drug Offense Sentencing, Offender Characteristics, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (2)

Sunday, July 15, 2018

"Incarceration, Recidivism, and Employment"

The title of this post is the title of this paper recently posted to SSRN authored by a group of economists. Here is its abstract:

Understanding whether, and in what situations, time spent in prison is criminogenic or preventive has proven challenging due to data availability and correlated unobservables. This paper overcomes these challenges in the context of Norway’s criminal justice system, offering new insights into how incarceration affects subsequent crime and employment. We construct a panel dataset containing the criminal behavior and labor market outcomes of the entire population, and exploit the random assignment of criminal cases to judges who differ ystematically in their stringency in sentencing defendants to prison. Using judge stringency as an instrumental variable, we find that imprisonment discourages further criminal behavior, and that the reduction extends beyond incapacitation.

Incarceration decreases the probability an individual will reoffend within 5 years by 29 percentage points, and reduces the number of offenses over this same period by 11 criminal charges. In comparison, OLS shows positive associations between incarceration and subsequent criminal behavior. This Sharp contrast suggests the high rates of recidivism among ex-convicts is due to selection, and not a consequence of the experience of being in prison. Exploring factors that may explain the preventive effect of incarceration, we find the decline in crime is driven by individuals who were not working prior to incarceration. Among these individuals, imprisonment increases participation in programs directed at improving employability and reducing recidivism, and ultimately, raises employment and earnings while discouraging further criminal behavior. For previously employed individuals, while there is no effect on recidivism, there is a lasting negative effect on employment. Contrary to the widely embraced ‘nothing works’ doctrine, these findings demonstrate that time spent in prison with a focus on rehabilitation can indeed be preventive for a large segment of the criminal population.

July 15, 2018 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (5)

Friday, July 06, 2018

The American Conservative explains "Where the Right Went Wrong on Criminal Justice"

JulyAugustArthur Rizer and Lars Trautman from the R Street Institute have this remarkable new commentary in The American Conservative under the full headline "Where the Right Went Wrong on Criminal Justice: Ending our 'incarceration nation' would help return conservatives to their roots, acting on principles most of them already hold."  Long-time readers are surely aware of my long-enduring contention that a lot of conservative ideology and rhetoric would seem to push toward advocacy for sentencing and other criminal justice reforms, and thus I really enjoyed this full lengthy piece (which, according the editors, is "the first in a collaborative series with the R Street Institute exploring conservative approaches to criminal justice reform). I recommend the piece in full, and here is just a small snippet:

When it comes to criminal justice, the Republicans have for decades declared themselves to be the party of “law and order.” This commitment to “tough on crime” policies helped it win elections in the latter half of the 20th century, but at the cost of a society in which a third of working-age Americans have criminal records and more than 10 million people go to jail each year. The fact that the United States, with nearly 2.2 million Americans behind bars, incarcerates more of its citizens than any other nation is not a point of pride. This shameful position is put in even starker relief when one considers that the nations with the second and third highest number of incarcerated individuals are China and Russia, respectively.

These realities, products of the “lock ’em up and throw away the key” sensibility of yesteryear, have tarnished the image of Republicans and conservatives in the minds of many. Though Republicans have greatly increased their political power in recent elections, they have nevertheless alienated many of the fastest growing segments of the electorate, casting a pall across the impressive electoral successes of the past decade.

The extension of conservative principles to criminal justice policies offers a chance to court new constituencies and bring conservative messages to voting blocs that will dominate American politics in the future, all without risking the current base of conservative support. Already, right-leaning organizations, armed with polling data that show significant backing from many conservatives, are mobilizing on criminal justice issues. It’s time to leverage these efforts to rebuild the conservative identity. Perhaps no other policy area holds more potential than criminal justice reform....

The inherent dignity of every human life is another tenet of the Republican Party that lives on in the conservative movement today.  However, it is also an issue that permeates too few aspects of the criminal justice system.  From abhorrent prison conditions to the stigmatization of the formerly incarcerated to the negative public safety implications of ill-conceived criminal justice policies, there is no shortage of ways in which the justice system cheapens life.  Efforts to alleviate these various forms of suffering and protect our communities offer conservatives another path to better defend the intrinsic worth of every human life.

Given the Christian Right’s prominence within modern conservatism, it seems prudent to at least consider how current criminal justice policies compare to Christian values. While conservatives certainly do not hold dominion over Christian values, Christians represent a substantial portion of the conservative base.  Further, Christian interest groups hold special power within the conservative movement, with many, particularly on the Left, being wary of how this influence might be used.

Maybe the most obvious lesson is from Christ himself — a criminal in the eyes of the state, subject to a miscarriage of justice by an imperfect criminal justice system. Beyond the despicable treatment of Christ, however, are the lessons he gave on how those accused and those guilty of crimes should be treated.  He recognized the “legality” of stoning an adulteress but nonetheless shamed the crowd by asking for the one who had not sinned to “cast the first stone.”  This is an important lesson for conservatives—that the legality of punishment should not be the end of the inquiry of what is just.

While the Bible certainly has examples of harsh punishments, it’s important to note that throughout his life Christ spoke persistently and passionately about reconciliation over retribution.  He famously told his followers: “You have heard that it was said, ‘An eye for an eye and a tooth for a tooth.’ But I say to you, do not resist one who is evil.  But if anyone strikes you on the right cheek, turn to him the other also.”

Criminal justice reform offers conservatives an opportunity to secure a more favorable image by returning to their roots and acting in concert with principles that most of them already hold.

The examination of principles and morality helps to answer “why” criminal justice reform nestles into a renewed conservative identity, but this does little to detail how such reforms will sustain this identity and propel it forward.  For these answers, it’s necessary to look at the problems that afflict each stage of the criminal justice cycle and how conservatives can reap political rewards from remedial action.  With the preamble of the Republican Party platform touting “limited government” and the “rights of the people” as bedrock principles, there is perhaps no better place to begin than pretrial jail reform.  Of the roughly 615,000 individuals held in our local jails at this very moment, around 465,000 are awaiting trial and have yet to be convicted of whatever crime has been alleged.  Too often, these incarcerated individuals are not the most dangerous, but the poorest—those unable to afford bond. Further, the incarcerated are hardly the only ones to suffer from this loss of freedom.  Even a short stay in jail raises the risk of criminal behavior after an individual’s release, meaning that unnecessary jailing is a public safety matter of concern to all.  We also pay dearly when we lock up so many of our fellow Americans, with the price tag of a single day in jail as high as $571.27 in some jurisdictions.

July 6, 2018 in Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (10)

Tuesday, July 03, 2018

Two interesting takes on the Catholic faith and criminal justice by two persons newly prominently in political discourse

Images (13)Long-time readers know I have long been interested in this various connections between various religious faiths and various criminal justice issues.  Thus, I found quite interesting this recent commentary by the newest "star" in Democratic political circles, Alexandria Ocasio-Cortez.  (As most readers likely know, Ocasio-Cortez defeated in a recent primary a senior congressional representative and is now the Democratic nominee in New York's 14th congressional district.) This commentary is in thee Jesuit publication America, and the piece is headlined "Alexandria Ocasio-Cortez on her Catholic faith and the urgency of a criminal justice reform," here is how it ends:

Discussions of reforming our criminal justice system demand us to ask philosophical and moral questions. What should be the ultimate goal of sentencing and incarceration?  Is it punishment?  Rehabilitation?  Forgiveness? 

For Catholics, these questions tie directly to the heart of our faith.

Solutions are already beginning to take shape, which include unraveling the War on Drugs, reconsidering mandatory minimum sentencing and embracing a growing private prison abolition movement that urges us to reconsider the levels at which the United States pursues mass incarceration.  No matter where these proposals take us, we should pursue such conversations with an openness to change and an aim to rehabilitate our brothers and sisters wherever possible and wherever necessary.

By nature, a society that forgives and rehabilitates its people is a society that forgives and transforms itself.  That takes a radical kind of love, a secret of which is given in the Lord’s Prayer: Forgive us our trespasses, as we forgive those who trespass against us.

And let us not forget the guiding principle of “the least among us” found in Matthew: that we are compelled to care for the hungry, thirsty, homeless, naked, sick and, yes — the imprisoned.

As I was thinking about posting this Ocasio-Cortez commentary on the intersection of Catholic faith and criminal justice, a helpful reader reminded me that another newly prominent person in political (and legal) circles has spoken interestingly about these intersections.  Specifically, SCOTUS short-lister Judge Amy Coney Barrett co-wrote an interesting article back in 1998, titled Catholic Judges in Capital Cases, which explores whether and how Catholic judges can and should be involved in enforcing the death penalty as members of the judiciary.  That article runs 48 pages and has so much nuance that it merits a full read by all.  But its essentials can be reasonably captured with quotes from  part of the introduction and the full conclusion:

Amy-barrett-faith-attack[W]e believe that Catholic judges (if they are faithful to the teaching of their church) are morally precluded from enforcing the death penalty. This means that they can neither themselves sentence criminals to death nor enforce jury recommendations of death. Whether they may affirm lower court orders of either kind is a question we have the most difficulty in resolving. There are parts of capital cases in which we think orthodox Catholic judges may participate - these include trial on the issue of guilt and collateral review of capital convictions. The moral impossibility of enforcing capital punishment in the first two or three cases (sentencing, enforcing jury recommendations, affirming) is a sufficient reason for recusal under federal law. But mere identification of a judge as Catholic is not a sufficient reason. Indeed, it is constitutionally insufficient....

Catholic judges must answer some complex moral and legal questions in deciding whether to sit in death penalty cases. Sometimes (as with direct appeals of death sentences) the right answers are not obvious. But in a system that effectively leaves the decision up to the judge, these are questions that responsible Catholics must consider seriously. Judges cannot-nor should they try to-align our legal system with the Church's moral teaching whenever the two diverge. They should, however, conform their own behavior to the Church's standard. Perhaps their good example will have some effect.

July 3, 2018 in Purposes of Punishment and Sentencing, Religion, Who Sentences | Permalink | Comments (9)

"Study after study shows ex-prisoners would be better off without intense supervision"

The title of this post is the title of this notable new Brookings commentary authored by Jennifer Doleac.  I recommend the piece in full, and here is how it starts and concludes:

Two-thirds of those released from prison are re-arrested within three years.  This incarceration cycle hurts families and communities — and also costs a lot of money. Governments and nonprofits have tried many programs to reduce recidivism, but most are not successful.  In a recent review of the literature on prisoner reentry, I summarized the best evidence on how to improve the lives of the formerly incarcerated.  One of the most striking findings was that reducing the intensity of community supervision for those on probation or parole is a highly cost-effective strategy.  Several studies of excellent quality and using a variety of interventions and methods all found that we could maintain public safety and possibly even improve it with less supervision — that is, fewer rules about how individuals must spend their time and less enforcement of those rules.  Less supervision is less expensive, so we could achieve the same or better outcomes for less money.

For instance, Hennigan, et al. (2010), measured the effects of intensive supervision using a randomized controlled trial (RCT) in Los Angeles.  Juveniles sentenced to probation were randomly assigned to intensive supervision—in the form of a community-based after-school program—or standard probation.  Five years later, there were no significant differences in outcomes between the treatment and control groups, with one exception: Low-risk boys (ages 15 or younger) who were randomized to intensive supervision were worse off. Intensive supervision for that group led to more incarceration and a higher likelihood of continued criminal justice involvement in the years ahead.  That is, intensive supervision increased criminal activity by this group, without reducing criminal activity by other groups.

Barnes, et al. (2012) used an RCT to study supervision levels in Philadelphia.  Low-risk probationers were randomized to probation as usual or low-intensity supervision by parole officers with high caseloads (which forced them to pay less attention to each individual case).  Less supervision means probationers may be less likely to get caught for technical violations, such as using drugs or breaking curfew.  But these requirements of probation are a means to an end: what really matters for public safety is the number of new offenses committed.  Eighteen months after randomization, there were no significant differences between the treatment and control groups in the likelihood of being charged for a new offense.  In other words, low-intensity supervision did not result in more recidivism....

These studies show that current efforts to reduce recidivism through intensive supervision are not working.  Why is intensive supervision so ineffective?  Requiring lots of meetings, drug tests, and so on can complicate a client’s life, making it more difficult to get to work or school or care for family members (meetings are often scheduled at inconvenient times and may be far away).  A heavy tether to the criminal justice system can also make it difficult for individuals to move on, psychologically.  Knowing that society still considers you a criminal may make it harder to move past that phase of your life.  These difficulties may negate the valuable support that probation and parole officers can provide by connecting clients to services and stepping in to help at the first sign of trouble.

It is unclear what the optimal level of supervision is for those on parole or probation, but these studies demonstrate that current supervision levels are too high.  We could reduce the requirements of community supervision — for low-risk and high-risk offenders alike — and spend those taxpayer dollars on more valuable services, such as substance abuse treatment or cognitive behavioral therapy.  This would be a good first step toward breaking the vicious incarceration cycle.

July 3, 2018 in Collateral consequences, Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (1)

Monday, July 02, 2018

"The Institutional Design of Punishment"

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

For the past 40 years, policymakers have engaged in a debate over which institution should wield the principal power over punishment.  Should courts and parole boards have the dominant role at sentencing, or should that power be left to legislatures and sentencing commissions?  These debates are typically couched in policy terms, yet they also raise deeply philosophical questions, most notably: What is the morally justified sentencing system?

Perhaps surprisingly, criminal theorists have almost uniformly ignored this normative question, and that neglect has degraded the quality of the on-going institutional debates.  This paper seeks to address that shortcoming by exploring the moral ramifications of design choices in the sentencing field.  In particular, the paper identifies the institutional structure best suited for promoting utilitarianism, a widely-accepted moral theory of punishment.

Drawing insights from cognitive science and institutional analysis, the paper concludes that a properly structured sentencing commission is the institution best able to satisfy the moral theory’s demands.  Beyond this policy prescription, the paper has a broader goal:To start a conversation about the link between moral theory and institutional design, and to encourage policymakers to explore more fully the premises of their own institutional choices in the criminal justice field.

July 2, 2018 in Purposes of Punishment and Sentencing, Recommended reading, Who Sentences | Permalink | Comments (3)

Notable Sixth Circuit panel reverses as procedurally unreasonable big upward variance in cocaine sentence based on opioid overdoses

On Friday, the Sixth Circuit handed down a notable new sentencing opinion in US v. Fleming, No. 17-3954 (6th Cir. June 29, 2018) (available here). The start of the opinion reviews its essentials:

Marcus Fleming was convicted of a cocaine offense, and the United States Sentencing Guidelines provided for a recommended sentence of 60 months’ imprisonment.  At his sentencing hearing, the district court doubled that.  It did so based in large part on a brief local news article that described a recent surge in drug overdose deaths, mostly due to powerful opioids like fentanyl.  Neither this article, nor the underlying Ohio state report on which it was based, was provided to the parties before the start of the sentencing hearing.  Nor was Fleming notified before the hearing that the district court planned to consider the article or the issues it addressed.  Because this procedure denied Fleming a meaningful opportunity to comment on information that led to a substantial increase in his sentence, the resulting sentence was procedurally unreasonable.

Here is small part of the Sixth Circuit panel's analysis:

Here, the district court’s reliance on information about mixed cocaine-opioid overdose deaths in the Cleveland.com article was a surprise, and that surprise was prejudicial to Fleming’s sentencing presentation. Therefore, Fleming’s sentence was rendered in a procedurally unreasonable manner.

The district court’s consideration of information about mixed cocaine-opioid overdose deaths was a surprise because, before the sentencing hearing, there was no indication that opioids were relevant to this case, let alone that they would play a prominent role. Fleming was convicted for possession of cocaine, not opioids.  Nothing in the record suggested that opioids were found in Fleming’s car, or that Fleming had ever sold or possessed opioids, or even that any cocaine Fleming sold had ever been mixed with opioids. Of course, opioids have been a topic of grave public concern in recent years, as their devastating and tragic effects have been felt across the country. But it was far from apparent that they were relevant to Fleming’s sentence for possession of cocaine.

This ruling strikes me as notable or at least two reasons beyond its substantive particulars: (1) one of jurists on Prez Trump's SCOTUS short list, Judge Raymond Kethledge, was one of the judges on this Fleming panel, and (2) this Cleveland.com report highlights that the erroneous sentencing judge has a history of unreasonably long sentences:

An Akron federal judge who has been criticized by a federal appeals court had a sentence reversed again on Friday -- this time because of his reliance on a cleveland.com article....

Adams has been removed from cases a few times in recent years and has been the target of criticism by the 6th Circuit.  Most recently, the appeals court removed him from a case involving two men arrested in Cleveland with more than 200 pounds of cocaine. Both prosecutors and defense attorneys in the case agreed to recommend prison sentences of about three years, but Adams gave them both 10 years and did not give any good reasons for the higher sentences, the 6th Circuit ruled.

July 2, 2018 in Booker in district courts, Booker in the Circuits, Drug Offense Sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)