Saturday, March 21, 2020

"Communicating Punishment"

The title of this post is the title of this notable new paper authored by Marah Stith McLeod just posted to SSRN. Here is its abstract:

Does it matter whether convicted offenders understand why they are being punished? In the death penalty context, the Supreme Court has said yes; a prisoner who cannot understand the state’s reasons for imposing a death sentence may not be executed.  Outside the capital context, the answer is less clear.  This Article focuses on why and how states should help all offenders make sense of their sanctions, whether imposed for retribution, for deterrence, for incapacitation, or for rehabilitation.

Judges today sometimes try to explain sentences to criminal offenders so that they know the purposes of their suffering. But judges are busy, defendants are not always interested, and the law often treats such explanations as unimportant or even unwise.  Legislatures, moreover, rarely convey the purposes of statutory penalties, plea bargaining obscures the reasons for punishment, and the experience of punishment does not always reflect its social aims.

Scholars and critics of American criminal justice tend to pay little attention to these deficits.  Perhaps explaining individual sentences seems unimportant compared to the larger effort to humanize and rationalize penal policy.  In fact, however, the two are intertwined.

Communicating the reasons for punishment humanizes offenders by engaging with them as reasoning beings worthy of society’s continued concern — not as unreasoning animals simply to be harnessed or caged. The process of articulating punishment goals also can rationalize sentencing by reducing error, bias, and excess.

We can build a legal culture that respects offenders and advances punishment rationality by communicating the reasons for criminal sanctions. Legislatures can clarify the purposes of statutory penalties, prosecutors can explain how sanctions based on plea deals serve legitimate goals, judges can spell out the social objectives of sentences in terms that offenders can understand, and prison and probation authorities can convey sentencing rationales during the experience of punishment itself.

I had the honor and pleasure of reading an earlier draft of this paper as part of an AALS event, and upon first read I considered this piece a very important contribution to the literature.  A few months later, amidst a global pandemic, I think it even more important to consider how decisions in the criminal justice system communicate that offenders are still "worthy of society’s continued concern."

March 21, 2020 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (0)

Sunday, March 08, 2020

"The Janus Face of Imprisonment: Contrasting Judicial Conceptions of Imprisonment Purposes in the European Court of Human Rights and the Supreme Court of the United States"

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

This paper considers how the Supreme Court of the United States (SC) and the European Court of Human Rights (ECtHR) apply, interpret and frame abstract imprisonment purposes, and how they view their relevance to prison conditions, while discussing the constitutionality of prison conditions.  The paper argues that the SC and the ECtHR view, conceptualise and interpret the purposes of imprisonment differently.  Regarding the purposes of retribution and rehabilitation specifically, the analysis presented in the paper exposes a ‘Janus face’, meaning that each purpose can, and is, interpreted in two different, and almost contrasting ways. 

The paper offers three themes regarding the conceptualisation of imprisonment purposes by the SC and the ECtHR: First, the relationship between the purposes of sentencing and imprisonment along the penal continuum, and the role of rehabilitation in a prison regime: should sentencing purposes be relatively static during their implementation in prison, meaning that retributive-oriented sentencing purposes should be pursued (SC), or should they conversely progress with the passage of time, from retribution to resocialization as the primary purpose of imprisonment (ECtHR).  Second, the meaning of retributivism in regard to prison conditions: should prisoners pay a debt to society by suffering in restrictive prison conditions (SC), or is retributivism achieved by atonement and by finding ways to compensate or repair harms caused by crime (ECtHR).  Third, the way in which prison rehabilitation is framed and understood: should prison rehabilitation be seen as a risk management tool aimed purely at lowering recidivism (SC), or as a moral concept grounded in a prisoner’s ability to change his life and belief in personal responsibility for one’s actions (ECtHR).  Possible theoretical implications and general policy implications are considered in the paper.

March 8, 2020 in Prisons and prisoners, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Thursday, February 27, 2020

"Sentencing is Dang Hard... And So..."

The title of this post is the (silly?) title that I gave to a speech I delivered a few years ago when having the honor to receive the 2018 Richard P. Kern Memorial Award from the National Association of Sentencing Commissions. A cleaned-up version of the speech appears now in the February 2020 issue of the Federal Sentencing Reporter, and I have posted the text here via SSRN. Here is the short piece's abstract:

This essay, adapted from a speech upon receipt of the 2018 Richard P. Kern Memorial Award from the National Association of Sentencing Commissions, details why sentencing is “dang hard” and explores implications of that reality.  The essay argues that the challenges of sentencing not only demand that all jurisdictions have a sentencing commission as an essential permanent agency, but also call for these commissions always to think big and to strive to work deep and wide to study all facets of modern criminal justice systems.  The essay also contends that sentencing errors may be quite common and that, even if we manage to get sentencing “right” at the outset, changes in society and in individuals can make even “right” sentences wrong over time.  Sensible humility about the likelihood of sentencing errors further suggests, for example: at the rule-making stage, having sentencing laws include sunset provisions and having sentencing commissions review and audit major guidelines and related sentencing practices on a regular basis; at the case-specific stage, having far more robust substantive appellate review of sentences and more robust mechanisms for parole and judicial reconsideration and clemency, and even developing more creative means to apply and revise different forms of punishment as time passes and new information is gathered.

February 27, 2020 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Monday, February 24, 2020

"Imagining the Progressive Prosecutor"

The title of this post is the title of this notable new paper authored by Benjamin Levin. Here is its abstract:

As criminal justice reform has attracted greater public support, a new brand of district attorney candidate has arrived: the “progressive prosecutors.”  Commentators increasingly have keyed on “progressive prosecutors” as offering a promising avenue for structural change, deserving of significant political capital and academic attention.  This Essay asks an unanswered threshold question: what exactly is a “progressive prosecutor”?  Is that a meaningful category at all, and if so, who is entitled to claim the mantle?  In this Essay, I argue that “progressive prosecutor” means many different things to many different people.  These differences in turn reveal important fault lines in academic and public perceptions of the criminal system and its flaws.

This disagreement or definitional slippage matters, not just for semantic clarity.  Some commentators hail the progressive prosecutor as a new champion of fixing the criminal legal system, while others express skepticism about the transformative potential of even the most progressive DAs.  To the extent that there are fundamental disagreements, then it is critically important to surface them. If resources are being devoted to advancing a progressive prosecutor movement, how unified is that movement?  And, do all the voices pushing for a new approach to prosecution actually agree on what that approach should entail?

In an effort to answer these questions and clarify the terms of debate on progressive prosecutors, this Essay offers a typology of progressive prosecutors.  Rather than mapping all of the candidates and elected officials who have sought or received the mantle, I offer four ideal types: (1) the progressive who prosecutes; (2) the proceduralist prosecutor; (3) the prosecutorical progressive; and (4) the anti-carceral prosecutor.  Each ideal type reflects a different vision of what’s wrong with the criminal system and whether (or to what extent) prosecutors might help in righting those wrongs.

February 24, 2020 in Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Sunday, February 23, 2020

"Can algorithms help judges make fair decisions?"

The question in the title of this post is the headline of this lengthy recent public radio piece.  Here are some excerpts from a lengthy article worth the time to read in full:

[I]n 2010, the [Pennsylvania Commission on Sentencing] worked on an algorithm, a formula, that would allow a computer to predict how likely a person was to commit another crime and recommend when judges should get more information about a case. The goal was to make sentencing more consistent, reduce prison populations, and lead to less crime.

Mark Bergstrom, executive director of the Commission on Sentencing, said compared to judges, an algorithm can process lots of data. “When we started our project, we didn’t look at a handful of cases, we looked at over 200,000 cases to try to see what factors sort of related to positive and negative outcomes. And that’s information that judges didn’t have or didn’t have in a … structured … way.”

The formula will look for patterns based on age, gender, what crime someone is being convicted of, prior convictions and for which crimes, and whether the offender has a juvenile record. It cannot take race into account, or county, which is seen as a proxy for race.

The judge will still make the ultimate decision on sentencing. The algorithm will be rolled out this year, and evaluated after 12 months. It took 10 years to create because it was so controversial.

For one thing, critics were afraid that a tool built from criminal justice data would still discriminate against people of color. Pennsylvania is more than 80% white. Almost half the prison population is black....

There is research on what a risk assessment algorithm will do: Virginia started using one in the early 2000s. Megan Stevenson, assistant professor of law at George Mason University, studied the effects: The number of people in prison did not go down, recidivism did not go down, and black people were slightly more likely to be incarcerated compared to white people, all else being equal.

“The impacts of a risk assessment tool don’t just depend on the statistical properties of the algorithm,” Stevenson said. “They depend on how human beings respond to the algorithm, when they choose to follow it, when they choose to ignore it.”

For example: When young people committed a crime, the risk assessment tool said those people are likely to commit more crime, sentence them harshly. But judges systematically said no. Were the judges wrong? On one hand, it’s well documented that criminals tend to do more crime when they’re young and less when they’re older. Statistically, young age is a strong predictor of future crime. But Stevenson said there is more to a sentencing decision than risk of future crime.

February 23, 2020 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Friday, February 21, 2020

Enjoy full day of "The Controlled Substances Act at 50 Years" via livestream

CSA at 50_socialBlogging will be light over the next few days as I am in the midst of helping to conduct this amazing conference which started last night at the Arizona State University Sandra Day O’Connor College of Law.  I have had the pleasure and honor of working with the amazing team at The Ohio State University's Drug Enforcement and Policy Center (@OSULawDEPC), along with the also amazing team at ASU's Academy for Justice (@Academy4Justice), to put together amazing and diverse array of panels and workshops on all sorts of topics relating to the past, present and future of the CSA's development, implementation and enforcement.

The basic agenda for the event can be found at this page, and last night  started with an amazing keynote by the amazing Keith Humphreys, Stanford University, Esther Ting Memorial Professor on "Federal Policy and the Dual Nature of Drugs," followed by an amazing response to keynote by Peter Reuter, University of Maryland, Professor of Public Policy and Criminology asking "Do Drug Problems have more influence on Drug Policy than vice versa?".

I am especially pleased and excited by this list of speakers who are participating, and today begins a series of terrific panels. and I can provide this link with its own links to the livestream for each of the panels. I think every part of the conference will be amazing, and I hope folks can make the time to tune in.

February 21, 2020 in Drug Offense Sentencing, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (1)

Monday, February 17, 2020

Spirited (but problematic?) advocacy for Bernie Madoff to receive compassionate relief

The New York Times has this notable new opinion piece authored by headlined "Let Bernie Madoff, and Many More, Out of Prison: Compassionate release has to apply to unsympathetic prisoners, if we mean what we say about ending mass incarceration."  I think the spirit of this piece is quite sound, but I am not entirely sold on all of its particulars.  Here are excerpts (with a few lines emphasized for comments to follow):

Recently, Mr. Madoff re-entered the news, as he filed for compassionate release from federal prison.  He is entering the final stages of kidney disease and has less than 18 months to live. The Bureau of Prisons denied his petition, as it does to 94 percent of those filed by incarcerated people.  But the reforms provided in the First Step Act of 2018 allow him to file an appeal with the sentencing court.

Even some who claim to detest the ravages of mass incarceration argue that Mr. Madoff should be denied compassionate release.  He is as close to the financial equivalent of a serial killer as one might encounter.  Still, there is a good argument to be made for compassionate release.  It has little to do with Bernie Madoff, though, and how we feel about his horrendous actions.

If our societal goal is to reduce incarceration, we are going to have to confront the inconvenient truth that retribution cannot be our only penological aim, and justice for victims has to be much more extensive than the incarceration of those who have caused them harm.  We desperately need to shift our cultural impulse to punish harshly and degradingly, and for long periods.

The visceral, retributive reactions to Mr. Madoff’s petition, including from liberals who claim to want to end mass incarceration, reveal the obstacles to transformational criminal justice reform.  The truth is, there is only a small number of entirely “sympathetic” people in prisons who could be released without any scruples by the public or affront to their victims.  Those incarcerated for violent offenses compose a vast majority of our prison population, in spite of a false narrative that most people are in there for nonviolent drug offenses.  The pain and harm experienced by their victims is real, and that’s also true for Mr. Madoff’s victims.  But criminal justice policy cannot be constructed in response to our feelings about individual, high-profile cases — the so-called worst of the worst. 

This “worst of the worst” argument, for example, has long undergirded the death penalty, which still stands in 30 states despite its racial and class biases and other flaws that have led hundreds of innocent people to death row.  It is also part of why the Democratic presidential candidates, with the exception of Bernie Sanders, don’t support the enfranchisement of those in prison.  But creating a separate category for Mr. Madoff, sex offenders or those “others” in the criminal justice system will not help end mass incarceration.  There will always be another high-profile case that can impede the implementation of more humane policies.

Those on the left who press for criminal justice reform emphasize “empathy” in their attempts to reframe the conversation about people who have committed crimes. Conservatives use the word “redemption.”  These words carry a profound responsibility: What do they mean for sympathetic and unsympathetic prisoners?  There are 200,000 people over the age of 55 incarcerated in the United States.  The question of compassionate release for Mr. Madoff affects not only him but these others and their victims as well.

Mr. Madoff lost both his sons while incarcerated (one died of cancer) and was unable to attend their funerals; is a social pariah, almost universally condemned; and has spent 11 years in federal prison.  This is not to say he deserves sympathy, but he has been punished.  In Norway, where Anders Breivik was sentenced to 21 years in prison for a horrific mass murder, 11 years would be considered harsh enough.  Our American punitiveness has distorted our sense of what is an adequate sentence for serious offenses.

When considering compassionate release, we also have to ask: Has the person been rehabilitated?  Does the punishment serve legitimate penological objectives (like deterrence and public safety) other than retribution?  (Something to consider, for instance: The number of Ponzi schemes prosecuted went up, not down after Mr. Madoff’s incarceration.)

Criminal justice reform will fall far short of the dramatic institutional changes needed if the dominant impulse continues to be retribution, and if high-profile cases continue to drive policy.  Compassionate release for those who are aging, terminally ill and dying should be assumed after they’ve served at least 10 years.  It was the offenders’ worst impulses that led them to commit their crimes.  Our justice system should appeal to our higher ethical ambitions.

I agree fully that "retribution cannot be our only penological aim, and justice for victims has to be much more extensive than the incarceration of those who have caused them harm." I also agree fully that criminal justice policy should not "be constructed in response to our feelings about individual, high-profile cases — the so-called worst of the worst" and that we should be troubled if "high-profile cases continue to drive policy." And whether a person has been rehabilitated also seem to me to be an important consideration here.  But I am not sure granting compassionate relief to Bernie Madoff furthers these interests, and I worry it could undermine them.

For starters, it is critical at this stage to realize that we are not really dealing with a "policy" matter, as the FIRST STEP Act altered the policy for compassionate relief and did so in a way that included Bernie Madoff and all other federal prisoners.  Though the FIRST STEP Act has some "worst of the worst" carve-outs in other parts of the Act, but its new process for pursuing compassionate relief applies to all federal prisoners (which is one reason I think it is such an important and valuable part of the Act).  in other words, in this context there is no need to worry about creating any "separate category for Mr. Madoff, sex offenders or those 'others' in the criminal justice system."  If a federal judge decided to deny Madoff compassionate relief, after considering all the facts of Madoff's case and all the factors of 3553(a), that judge will be adjudicating and resolving a single case, not creating any broad "criminal justice policy."

As to the facts of Madoff's case, I have seen little evidence that Madoff has been truly remorseful or rehabilitated.  In fact, this 2016 ABC News article reports that "Madoff has done little to express his remorse or regret to the estimated 20,000 investors in his scheme, many of whom lost their life savings in the $64 billion fraud.  Other than a brief reference to his victims during his sentencing hearing, Madoff has spent a lot of his time behind bars in an effort to rehabilitate his own image and actually shift the blame to the investors for expecting unrealistic returns which he claims is why he set up his fraud."   And though surely Madoff's victims may not speak in one voice on these matters, I suspect many are open to a vision of "justice ... much more extensive than the incarceration," but are concerned that they have not seen any other form of extensive justice achieved here (though a whole lot of assets have been recovered after a decade of work).  Madoff not only committed arguably the worst white-collar offense in US history, but it seems he has not really done all that much to try to make amends.

Though I may be getting too nitpicky here, I wanted to comment on this piece because I found one particular sentence to be particularly disturbing: "The truth is, there is only a small number of entirely “sympathetic” people in prisons who could be released without any scruples by the public or affront to their victims."  The truth is, there are tens of thousands, probably hundreds of thousands, of entirely "sympathetic" people in US prisons who could be released without any scruples by the public or affront to their victims.  Just a quick look at "The Whole Pie" of incarceration shows over 275,000 persons imprisoned for drug offenses and another 200,000 in for "public order" offenses.  Not all of these the underlying crimes were victimless, but even if only one of every ten of these prisoners are "sympathetic," that still gets us to nearly 50,000 sympathetic prisons to consider for release.  Mass incarceration is so very troubling in part because there really are quite a large number of sympathetic cases, and I am particularly eager for there to be continued efforts to give voice to, and get relief for, the huge number of sympathetic folks wasting time (and taxpayer resources) in unduly lengthy prison terms.

This piece rightly notes "there are 200,000 people over the age of 55 incarcerated in the United States" and it is rightly concerned that "compassionate release for Mr. Madoff affects not only him but these others and their victims as well."  But these data and my fears tethered to Madoff's failure to demonstrate remorse run the argument the other way in my view: though I hope there would not be a backlash were Madoff to receive compassionate relief, I worry he could become the poster child for restricting this important relief mechanism for tens of thousands of other prisoners who would seem a lot more sympathetic.  That said, I do like imagining a (realistic?) future in which a decision to release Madoff prompts many more federal judges to grant compassionate release to many more federal prisoners.

Prior related post:

February 17, 2020 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (1)

Sunday, February 16, 2020

As Virginia and other states consider expanding parole, might the federal system do the same in a SECOND STEP Act?

In this 2017 Federal Probation article, titled "Reflecting on Parole's Abolition in the Federal Sentencing System," I imagined various ways modern federal sentencing reform might have been less problematic if some form of parole had been retained in the Sentencing Reform Act of 1984.  I also noted how the legislation that became the FIRST STEP Act served as a kind of "parole light" while also explaining why I thought reformers "troubled by the punitive policies that the SRA helped usher into the federal system ought to think about talking up the concept of federal parole anew."

This not-so-old-but-already-dated article came to mind as I saw this piece from the New York Times this week under the full headline "‘It Didn’t Work:’ States That Ended Parole for Violent Crimes Are Thinking Again; Virginia, newly dominated by Democrats, may broaden parole for the first time in a generation. Others states are watching."  Here are excerpts:

After Zenas Barnes was convicted of three robberies in the 1990s, he accepted a plea deal that stunned even veteran lawyers for its severity: 150 years in state prison. Mr. Barnes, who was 21 at the time, said that he had not realized when he took the deal that the Virginia Legislature had, only months before, abolished the most common type of parole, meaning that there was a good chance he would die in prison.

Twenty-five years later, the State Legislature, newly dominated by Democrats, is poised to broaden parole for the first time in a generation.  The move would give Mr. Barnes and thousands of other prisoners convicted of violent crimes a chance for parole, which allows inmates to be released early.

Watching closely are lawmakers across the nation, including in California, New York, Illinois and Pennsylvania.  Like Virginia those states decades ago virtually eliminated discretionary parole, granted by appointed boards on a conditional basis, during an era of surging violent crime and the imposition of progressively harsher punishments.

“We thought we were fighting crime, and it didn’t work,” said David Marsden, a Democratic state senator in Virginia, who has previously introduced bills to restore parole but was blocked by Republican majorities.  “But more recently, we’ve stopped trying to teach lessons and started trying to solve problems.  People are now more likely to believe that people deserve a second chance.”...

Even in Virginia, where Democrats won majorities in both chambers of the Legislature in November, and which also has a Democratic governor, Ralph Northam, the question of expanding parole remains politically perilous.  This month, Democrats shelved a bill that would have restored the possibility of parole for nearly 17,000 inmates — more than half the state’s prison population.  Instead, Democrats have focused on more modest efforts to restore parole to older inmates.

“The prevailing attitude of policymakers is we’ve come to the limit because they don’t want to release violent offenders,” said Marc Mauer, executive director of the Sentencing Project, a nonprofit that advocates shorter sentences and other policy changes to the criminal justice system.  There is no significant difference in violent crime rates between states that allow parole and those that do not, according to federal data.  But Mr. Mauer said many people associate parolees with recidivism and violence, and their crimes often garner significant public attention.

Republican lawmakers have warned that restoring parole would make Virginia — which has the fourth lowest violent crime rate of any state — more dangerous.  “When parole is granted, it will result in violent criminals being released into our communities,” said Robert Bell, a Republican member of the House of Delegates.  Mr. Bell added that parole “will force victims of violent crimes and their families to relive the worst day of their lives over and over again.”...

Both chambers of the Virginia Legislature have already approved a bill that would make hundreds of prison inmates eligible for parole because they were convicted by juries that were not informed by courts that defendants were no longer eligible for parole after the practice was abolished in 1995.  Governor Northam has said he will support it.

Mr. Northam has also said he supports a bill that would grant parole eligibility to prisoners who are older than 50, a group that may number in the thousands.  He has not yet said whether he would sign a measure that would restore the possibility of parole to thousands of inmates who have served 20 years or more of their sentences.  Both bills are expected to be passed by both chambers of the Legislature.  The governor has not taken a position on the shelved bill that would have restored the possibility of parole for more than half the state’s prison population.

I think it wise for any parole reform, at the state or federal level, to move forward incrementally.  Given the Supreme Court's Eighth Amendment rulings, jurisdictions ought to have general parole mechanism that are available to all young offenders sentenced to very long prison terms.  Likewise, public safety concerns would be minimized if and when parole eligibility is at least initially focused upon defendants imprisoned for long periods for non-violent offenses (especially for first offenses and for offenses without victims).

Notably, the federal prison system likely has many more defendants imprisoned for long periods for non-violent offenses than do state systems because, according to federal prison data, roughly 40% of federal prisoners are incarcerated for drug offenses and nearly half are serving terms of 10 years or longer.  In other words, I think the federal system would be one in which it would be ideal to develop a new modern (and initially modest) system of parole.

Notably, as reported in this post back in November, at a Senate Judiciary oversight hearing with the head of the federal Bureau of Prisons, Senator Lindsay Graham raised the idea of "reinstituting parole in the federal system."  I am sorry we have not yet seen any follow-up on this idea from Senator Graham or others, but I am encouraged that parole appears to no longer be a dirty word in various criminal justice reform conversations.  And, as the title of this post indicates, I think it would be a great idea to include in any SECOND STEP federal reform proposals to follow up the "parole light" elements in the FIRST STEP Act.

February 16, 2020 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Wednesday, February 12, 2020

"Remorse and Judging"

The title of this post is the title of this new book chapter authored by Susan Bandes now available via SSRN.  Here is the abstract:

This chapter focuses on the judicial evaluation of remorse.  It is an article of faith that judges can and should evaluate remorse when determining sentence.  Although the dynamics of this evaluation are understudied, the existing literature helps illuminate the assumptions judges employ and the dangers and limitations of those assumptions.  Judges rely on evaluation of demeanor and body language and on allocution, and their interpretations are rife with implicit assumptions and unstated rules about what counts as remorse. 

Many of these assumptions (for example the link between remorse and decreased recidivism and the possibility of assessing remorse from demeanor) lack evidentiary support. These assumptions and implicit rules vary widely from judge to judge.  They often fail to account for the influence of race, ethnicity, gender and social class on the expression and evaluation of remorse.  Moreover, they put a premium on the willingness to plead guilty, and to do so at the earliest possible opportunity.  The chapter draws upon the few existing empirical studies on the topic and identifies areas that require further study.

February 12, 2020 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (1)

Monday, February 10, 2020

"The Peter Parker Problem"

Standard_incredibleThe title of this post is the title of this new article authored by W. David Ball now available via SSRN.  Here is the piece's abstract:

Sandy Mayson, in her article "Dangerous Defendants," points out the ways in which pretrial detention violates the parity principle-treating those of like risk alike.  There is no justification for the preventative detention of arrestees that would not also apply to those of a similar risk level at large.  In other words, merely having an arrestee in custody does not logically change our analysis of the risk they present or what we should do with them.

But what if these views are psychological, not actuarial?  What if different decisions about these populations (and the differences in how we view them) are not based in different assessments of risk, but about the psychological heuristics we use to analyze them?  In this paper, I explore the possibility that counterfactuals — the "if only I had" scenarios that create an alternative universe where tragedy is avoided — drive decisionmaking without our being aware of it.  The human tendency to desire certainty and simplicity may help explain why our default seems to be to keep someone locked up, "just in case" — and why this desire is resistant to information and argument.

This Article adds an important dimension to the ongoing debates about whether judicial discretion or actuarial tools should govern pretrial release.  Judicial discretion may be biased towards incapacitation by operating on the "gut level" of psychology — even if these decisions result in suboptimality from a cost-benefit perspective.  It adds an additional perspective to the existing literature on the political economy of headline-grabbing crimes (the "Willie Horton" effect). 

The insights from pretrial release also apply more generally to a host of similar problems, including parole release, executive clemency, diversion programs, and removal of children from potentially abusive parents, and suggest that policymakers and reformers be cognizant of the way in which current criminal justice thinking is short-sighted, overly reactive, and biased towards incapacitation.  By applying theories of the counterfactual proposed by Roese and other behavioral psychologists to regret-minimization problems, the Article provides an explanation for why, even when regulations change, judicial decisions to release may remain low.  It suggests that experimental research specifically targeting judicial counterfactual thinking should take place.

February 10, 2020 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Wednesday, February 05, 2020

"Lost in Translation: 'Risks,' 'Needs,' and 'Evidence' in Implementing the First Step Act"

The title of this post is the title of this notable new paper now available via SSRN authored by Jennifer Skeem and John Monahan.  Here is its abstract:

In this article, we focus on two highly problematic issues in the manner in which the First Step Act of 2018 is being implemented by the Bureau of Prisons: (1) an uncritical separation of “dynamic risks” and “criminogenic needs” and (2) a spurious reliance on “evidence-based” interventions to reduce recidivism risk.  We argue that if the Act is to live up to its promise of being a game-changing development in efforts to reduce crime while simultaneously shrinking mass incarceration, “needs assessment” must be subject to vastly increased empirical attention, variable and causal risk factors must be identified and validly assessed, and interventions to reduce risk must be rigorously evaluated both for their fidelity of implementation and impact on recidivism.  Rather than further proliferating programs that ostensibly reduce risk, we believe that serious consideration should be given to the Bureau of Prisons offering one signature, well-established cognitive-behavioral program that can simultaneously address multiple risk factors for moderate and high-risk prisoners.

February 5, 2020 in FIRST STEP Act and its implementation, Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (0)

Monday, February 03, 2020

"What Would a World Without Prisons Be Like?"

The question in the title of this post is the title of this recent piece from The New Yorker.  Of course, the question does not lend itself to an easy answer, and this piece includes a 20+-minute podcast to dig deeper.  Here is how the segment is previewed:

Mass incarceration is now widely regarded as a prejudiced and deeply harmful set of policies.  Bipartisan support exists for some degree of criminal-justice reform, and, in some circles, the idea of prison abolition is also gaining traction.  Kai Wright, the host of the WNYC podcast “The United States of Anxiety,” spoke about the movement with Paul Butler, a law professor and former federal prosecutor who saw firsthand the damage that prosecution causes, and sujatha baliga, a MacArthur Foundation fellow and a survivor of sexual violence who leads the Restorative Justice Project at the nonprofit Impact Justice.

“Prison abolition doesn’t mean that everybody who’s locked up gets to come home tomorrow,” Butler explains.  Instead, activists envision a gradual process of “decarceration,” and the creation of alternative forms of justice and harm reduction.  “Abolition, to my mind, isn’t just about ending the prisons,” baliga adds. “It’s about ending binary processes which pit us as ‘us, them,’ ‘right, wrong’; somebody has to be lying, somebody’s telling the truth. That is not the way that we get to healing.”

February 3, 2020 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (2)

Thursday, January 30, 2020

Reflecting on the meaning of "life" after Graham and Miller

Eli Hager has an extended new piece (at The Marshall Project and Slate) concerning the legal churn over the application of Miller and Graham.  The full headline of this piece highlights its themes: "What’s the Meaning of “Life” When Sentencing Kids?: The Supreme Court ended automatic life without parole for children. What replaces it remains unclear." I recommend the full piece and here are excerpts: 

How long a sentence would the judge have to hand down for it to feel essentially the same as being sent to prison for life?

States have been wrestling with this question over the past decade in the wake of multiple U.S. Supreme Court rulings that automatically sentencing juveniles to life in prison without the possibility of parole is unconstitutional, because kids have a unique ability to grow and change and therefore deserve a second chance down the road. That forced courts and legislatures to consider what number of years to hand down instead to the more than 2,000 current prisoners nationwide who were originally sentenced as juveniles to mandatory life without parole....

[Certain] states have determined that locking up a juvenile for 25 years is tantamount to a life sentence. Some have put the number at 40 years. But one Louisiana court ruled that even a 70-year sentence is not equivalent to life in prison. Another in Florida said that having a possible parole date in the year 2352—more than three centuries from now—is still less than an automatic lifetime behind bars.

“It really is a philosophical question,” said Marsha Levick, chief legal officer at the Juvenile Law Center, an advocacy group. “These are children who entered prison before having finished high school, who never got a chance to achieve maturity, to have relationships, have a family, a career. Does releasing them at 70 or 80 or 90 years old, when they are geriatric, really give them that second chance at an actual life?”...

It’s hard to estimate how many juveniles are serving long sentences equivalent to life. In most states, no agency is mandated to count how many kids are sent away until they will likely die, though youth advocates in Louisiana, for example, estimate there are more than 200 in that state’s penitentiaries alone.Pennsylvania has made perhaps the most concerted effort to get a large number of prisoners originally sentenced to automatic life without parole re-sentenced and then sent home, following the Supreme Court’s reasoning. More than 200 former juvenile lifers there have been let out in recent years, most to the Philadelphia area.

January 30, 2020 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Tuesday, January 28, 2020

"Financial Hardship and the Excessive Fines Clause: Assessing the Severity of Property Forfeitures After Timbs"

The title of this post is the title of this new paper authored by Beth Colgan and Nicholas McLean now available via SSRN.  Here is its abstract:

In the wake of the Supreme Court’s decision in Timbs v. Indiana — which held that the Fourteenth Amendment incorporates against the states the Eighth Amendment’s ban on the imposition of “excessive fines” — it is likely that state and lower federal courts around the nation will be called upon to further develop Excessive Fines Clause doctrine.  The Court’s historical exegesis in its Timbs opinion, as well as aspects of existing Eighth Amendment doctrine, support an analytical framework under which courts would look to the effects of property forfeiture on individuals and their families — in particular, the infliction of financial hardship — when assessing the severity of a forfeiture in the proportionality review context.  In this Essay, we sketch the outlines of a forfeitures jurisprudence that would take into account the ways that property deprivations may restrict employment and educational access, interfere with the ability to meet basic needs (including food, shelter, and medical care), create family and social instability, and impede the ability to satisfy legal obligations.

January 28, 2020 in Fines, Restitution and Other Economic Sanctions, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Sunday, January 26, 2020

"The Cruelty of Supermax Detention and the Case for a Hard-Time Sentencing Discount: A Pragmatic Solution to a Moral Shortcoming Which Is Otherwise Unlikely to Be Fixed"

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

We should send offenders to prison as punishment, not for punishment.  This principle is currently being violated in relation to approximately 60,000 offenders who are caged in ‘supermax’ prison conditions in the United States.  Many of these prisoners spend up to 23 years in a small cell with no contact with any person.  The conditions are traumatic. Emerging evidence demonstrates that these conditions cause considerable psychological and physical harm to prisoners.  Understandably, there are growing calls to abolish confinement of this nature.  However, there are no signs that abolition of supermax conditions will occur soon.  Despite this, it is incontestable that the deprivation experienced by prisoners can vary considerably, depending on the strictness of the prison regime in which the prisoner is confined.  Prisoners subjected to supermax conditions suffer considerably more than those in conventional prison conditions.

In this Article, we make recommendations regarding the manner in which prison conditions should impact the length of a prison term.  We suggest that for most prisoners, every day spent in supermax conditions should result in two days’ credit towards the expiration of the prison term.  Hard-time credits are justified by the principle of proportionality, which stipulates that the seriousness of the crime should be matched by the hardship of the penalty.  The main cohort of prisoners that should not be eligible for hard time credits are serious sexual and violent offenders who are at risk of re-offending, as determined by the application of a risk assessment instrument.  Infringement of the proportionality principle is justified in these circumstances because of the more pressing need to pursue the ultimate aim of sentencing: community protection.

Providing hard-time credits for most prisoners who are forced to endure supermax conditions will not overcome the ethical problems associated with this form of detention — which are especially acute given that African American and Hispanic inmates are disproportionality subjected to supermax confinement.  However, the reform proposed in this Article will provide a pragmatic solution to a considerable failing in our sentencing and prison systems and operate to make authorities less inclined to subject prisoners to cruel conditions in a manner that does not compromise community safety.

January 26, 2020 in Prisons and prisoners, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Friday, January 24, 2020

"What should criminal justice reform look like in 2020?"

The question in the title of this post is the headline of this recent Hill commentary authored by Timothy Head, who is the executive director of the Faith & Freedom Coalition. Here are excerpts:

Since 2007, more than 30 states have passed reforms to reduce incarceration, recidivism rates, and costs; and these reforms have seen significant results. For example, Texas has saved over $2 billion, reduced recidivism by 25 percent, and seen its lowest crime levels since 1968.  But as more states and federal legislators begin to implement reforms, what should be the top priorities?

Narrow the net of incarceration

Incarceration isn’t the right answer for every crime. Offenders whose crimes are motivated by a mental health or substance abuse issue, for example, could be better served through other rehabilitation efforts.  We need to focus on improving early detection of behavioral health needs, expanding access to mental health resources and substance abuse recovery programs, and not making incarceration the default sentence for everyone.

Create effective rehabilitation programs

A 2019 report found that 58 percent of prison inmates don't complete an education program while in prison, even though employment rates for former inmates increase by an average of 10 percent, on average, after they participate in a college program.  By increasing education opportunities for incarcerated individuals, we give them skills and post-incarceration opportunities.

Because incarceration and recidivism are so closely tied to poverty, educational opportunities are one of the best ways to keep former inmates out of prison.  Other proven rehabilitation programs include Bible-based trauma healing programs, prison work programs, and mental health and substance abuse counseling....

Ensure prompt and fair outcomes for both the accused and the victim.

Nearly half of the over 16,000 people in Michigan’s jails are pretrial detainees awaiting trial.  Effective reforms increase pretrial releases and reserve prison and jail resources for those who represent a flight risk or public safety threat.  Additionally, resources like counseling, legal representation, and compensation for victims of crimes sorely lack in states throughout the country.

January 24, 2020 in Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (0)

Wednesday, January 15, 2020

"The economic and moral costs of our inhumane prison system"

The title of this post is the headline of this recent Washington Examiner commentary authored by Arthur Rizer.  Here are excerpts:

In the U.S., we say we care about human dignity and rehabilitation. We say we want to promote public safety.  But our actions show a different reality. As a result, the American incarceration system produces little benefit to either those caught within the system or those forced to pay for it.

Mississippi, for example, houses more inmates on a per capita basis than nearly any other state in the country.  The reason has nothing to do with crime rates there but rather with how the state chooses to address crime.  Mississippi’s draconian habitual-offender laws have resulted in thousands of people serving decades in prison. Because these laws require prison sentences even for minor, nonviolent offenses, the punishment is often severely disproportionate to the underlying conduct.  A person can be sentenced to die in prison for possessing marijuana if they have two prior convictions — even if one conviction was for something as minor as shoplifting.

The conditions in Mississippi prisons are an added affront to America’s purported commitment to protecting human dignity.  Indeed, stories and photos of prison conditions at the state’s Parchman Farm penitentiary that were leaked earlier this year prompted Families Against Mandatory Minimums to send a letter to the U.S. Department of Justice’s Civil Rights Division demanding an investigation into the facility’s “unsafe conditions, violence, weapons, and understaffing.”

Unsurprisingly, U.S. prisons are also extraordinarily deadly.  Last year, more than 75 people died in Mississippi Department of Corrections custody — 16 in August alone. In 2019, the number of prisoner deaths spiked again.  Overcrowding, inadequate resources, and a focus on retribution over rehabilitation all contribute to an environment that is an affront to human dignity.

We pay not only a moral cost for this ineffective and inhumane system but also an economic one. Mississippi spends nearly $1 million a day on its prison system. But that money is not spent on making sure people are prepared to become productive members of society, so it is no surprise that many people return to prison after they are released. Warehousing people in prisons and then releasing them into society without any support, training, or opportunity rarely results in success....

Germans have a fundamentally different way of thinking about corrections. Article 1 of Germany’s postwar Constitution states that human dignity is “inviolable,” and one sees this value implemented nowhere more clearly than in the German approach to incarceration....  To Germans, the loss of freedom, not cruel treatment or inhumane prison conditions, is the punishment.  And that loss is administered for the shortest time necessary.  Approximately 75% of prison sentences are for 12 months or less, and 92% of sentences are for two years or less.  Compare this to the U.S., where the approximate average sentence is three years.

For Germans, corrections are not about humiliation or retribution.  They are about healing.  This means that their focus is squarely on rehabilitation.  Normalization, or making life in prison closely resemble life in a community, and preparation for reentering society take precedence over everything else.  Similarly, resocialization replaces isolation. Instead of simply treating inmates as potential problems, guards act as motivators and actively create a positive culture within the prison community.  By learning to respect the humanity of those within their care, the guards play an integral role in preparing those in prison for reentering their communities....

In our approach to criminal justice and corrections, we have fallen behind other major countries in the world.  Like the Germans, we have to change the way we think about our correctional systems.  Reforming Mississippi’s habitual sentencing laws and commuting overly harsh sentences would be a good place to start.

January 15, 2020 in Prisons and prisoners, Purposes of Punishment and Sentencing, Sentencing around the world | Permalink | Comments (1)

Thursday, January 09, 2020

"Should Judges Have to Weigh the Price Tag of Sending Someone to Prison?"

The title of this post is the title of this new Mother Jones piece with this subheadline: "A handful of reformist DAs think so. But they’re meeting plenty of resistance."  Here is the start of a long piece (with good links) that merits a full read:

There’s one trial that Buta Biberaj will never forget. Biberaj, a former defense attorney, remembers how Virginia jurors in 2017 requested 132 years of prison for a man who stole car tires.  The jurors may have been unaware that taxpayers could pay more than $25,000 a year to keep someone incarcerated — so by proposing their sentence, they were also suggesting that society fork over $3 million. For tires.

Last week, Biberaj started her term as district attorney in Virginia’s Loudoun County. As part of a wave of progressive candidates that swept district attorney elections in Virginia in November, Biberaj is calling for changes that reformers elsewhere have championed, like ending cash bail and letting marijuana crimes go.  But she’s also touting a proposal that goes a step beyond what most liberal district attorneys have floated: She wants courts to grapple with the financial toll of incarcerating people.

Normally, if someone commits a felony like rape or murder, a prosecutor from a district attorney’s office tells a jury or judge why the victim deserves to see the offender locked away.  Prosecutors are often evaluated by the number of convictions they receive and the types of lengthy sentences they secure, with some touting their toughness to win reelection.

Biberaj, during her 25-plus years as a defense lawyer and more than a decade as a substitute judge, came to believe that the sentencing process is flawed. So now as district attorney, she wants her office to tell juries exactly how expensive it is to send people to prison.  “If we don’t give them all the information, in a certain way we are misleading and lying to the community as to what the cost is,” she said in an interview before the election.

Biberaj is not the first prosecutor to suggest such a policy.  In 2018, Philadelphia District Attorney Larry Krasner, one of the country’s most famous progressive prosecutors, launched a similar experiment.  Shortly after his election, he instructed his office’s attorneys to tell judges how much recommended prison sentences would cost, noting that a year of unnecessary incarceration in the state rang in at about $42,000—around the salary of a new teacher, police officer, or social worker.  “You may use these comparisons on the record,” he told them. Chesa Boudin, the former public defender elected as district attorney in San Francisco in November, says he plans to implement a similar policy after taking office this week....

But so far, other than Biberaj and Boudin, the idea hasn’t caught on widely.  While more progressives are running, about 80 percent of prosecutors go unopposed in elections, meaning that many tough-on-crime district attorneys maintain their seats.

And some judges don’t want to know how much a prison term will cost. They argue that money has no place in decisions about punishment and justice.  Choosing a sentence, they say, should involve weighing the specific situation and needs of the offender and victim, irrespective of budget. And if elected judges feel pressure to save money for taxpayers, it could skew their opinions, argues Chad Flanders, a professor at Saint Louis University School of Law.  “Asking judges to make budgetary decisions in sentencing is just another way of asking them to be politicians,” he wrote in a paper on the subject in 2012.  Some judges in Philadelphia have asked Krasner’s attorneys not to share the cost data with them.

January 9, 2020 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (5)

Saturday, December 28, 2019

"Attorney General Barr wrong about role of prosecutors. Tough-on-crime stance stunts progress."

The title of this post is the headline of this notable new USA Today commentary authored by Ronald Wright.  Ron is a co-author on the Sentencing Law and Policy casebook, so I am professionally inclined to agree with a lot of what he has to say.  But this commentary — which carries a subheadline "Criticism of 'social justice' prosecutors, threat to communities shows DOJ leaders lack vision, understanding to ensure justice system reform" — strikes me as an especially astute and thoughtful response to some of the silliness emerging from DOJ leaders on this issue of late.  Here are extended excerpts:

Across the country, a new wave of prosecutors is working to reverse the damaging effects of decades of over-incarceration, attempting to make progress in the face of criticism from the nation's top law enforcement officials — Attorney General William Barr and Deputy Attorney General Jeffrey Rosen.  Both men have shown a lack of understanding when it comes to prosecutorial reform — Barr in a column written his month in which he criticized "'social justice' DAs" and "'progressive' judges" and another written last month by Rosen that accused prosecutors of "shirking" their duty....

These comments are misleading, incorrect and, more than anything, demonstrate that Barr and Rosen don't understand the modern prosecutor’s job.

The idea that the criminal justice system is not broken appears to stem from an indifference to historical trends and current realities.  Incarceration rates may have begun to tick down, but the United States remains far and away the world's incarceration leader, with 2.2 million people behind bars.  Jails process 10 million admissions every year.  And we spend too much to incarcerate too many — at least $80 billion a year. In this country, spending on the very systems Barr and Rosen claim are working, has outpaced spending on education.

Absent from their vision is how our system punishes the most vulnerable. The median income of adults who end up in the system hovers at less than $20,000 a year for men (and about $5,000 less for women). That's half the average median income of men who never end up in prison. Every day, according to 2018 numbers, we keep about 53,000 children incarcerated in this country. And while a white man has a 1 in 17 chance of being sent to prison, those chances grow to 1 in 6 for Latino men and 1 in 3 for black men. In short, to claim that these systems are not broken shows willful blindness.

Instead of learning from past mistakes, Barr and Rosen continue to call for more of the same. They often credit law enforcement policies of the last few decades with reducing crime — without providing any evidence that mass incarceration works.

Yes, crime rates fell during the same time period that incarceration soared. But the crime drop has many causes. Studies show that tough-on-crime policies had, at best, a “modest” effect on the decline.  Prison growth in the 1990s had a limited impact on crime, but since then the effect mostly disappeared.  It is now clear that states with lower incarceration rates achieved just as much public safety as states with higher rates.  And other countries got better results with far smaller and more humane prison systems.

In sum, our bloated prison systems cost far more than necessary.  And we pay the price not only in tax dollars, but in damage to community trust. The best results for public safety happen when strong communities cooperate with prosecutors and police and other public officials.  In many places, voters have rejected the tough-on-crime mindset. Instead, they put their trust in district attorneys who campaigned to address the imbalances in the system, to correct past instances where the system failed, and to use the discretionary power all district attorneys possess to prosecute fewer people.

Which leads to perhaps their most glaring error. District attorneys that are catching criticism have listened to the voters. Then they pledged to fix the system and are doing exactly what the voters elected them to do.

All too predictably, Barr and Rosen return to the tired old argument that a prosecutor who cares about reform disrespects victims. Reformers are shifting their resources away from thefts and less damaging crimes precisely because they want to put more focus on firearms and violent crimes.  That choice of priorities takes victims seriously.  Moreover, by focusing on diversion instead of prosecution for minor and nonviolent offenses, reform prosecutors can help people address the underlying causes of criminal behavior. That makes today’s crime victims — and their communities — safer in the long run.

Barr and Rosen cast the prosecutor as a tough-on-crime warrior who exercises discretion in a few individual cases, while ignoring larger questions about the health of criminal justice.  Reform-oriented prosecutors were elected to improve criminal justice.  They listen to the lessons of history and the values and hopes of their own communities.  It requires a peculiar sort of deafness to argue for the same old prison-centered strategy that has proven too costly over many decades.

The best prosecutors are not warriors — either the tough-on-crime type or the social justice type.  The best prosecutors are problem solvers.

December 28, 2019 in Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (1)

Thursday, December 26, 2019

"Victims' Rights from a Restorative Perspective"

The title of this post is the title of this new paper authored by Lara Bazelon and Bruce Green recently posted on SSRN.  Here is its abstract:

The criminal adjudicatory process is meant in part to help crime victims heal.  But for some crime victims, the process is re-victimizing. For decades, efforts have been made to make the criminal process fairer and more humane for victims.  For example, state and federal laws are now designed to keep victims informed, allow them to be heard at sentencing, and afford them monetary restitution.  But these efforts, while important, have not persuaded crime victims to trust criminal process.  For example, sexual assaults remain grossly under-reported and under-prosecuted.  Less than 1 percent of sexual assault crimes result in a felony conviction.  Even the few victims who do receive their promised retributive outcome are not necessarily healed by the process.

Reform efforts seem to presuppose that victims of crime — or victims of particular crimes such as sexual assault — are essentially the same and have essentially the same need, namely, a need for the offender to be criminally prosecuted and sent to prison to serve the longest sentence the law allows.  However, sexual assault victims are a diverse group — racially, ethnically, socio-economically, and with respect to sexual identity – and they suffer varied harms because sexual assault encompasses a wide realm of misconduct and victim-offender relationships or lack thereof.  Even when victims suffer similar harms and come from similar backgrounds, they often have distinct, though sometimes overlapping, needs and objectives.  Some have no desire to participate in the criminal adjudication process at all.  Some will be re-traumatized by a successful criminal prosecution, even with the implementation of procedural reforms promoted by the victims’ rights movement and others.

Proceeding from the premise that victims are a diverse group with differing needs, we focus on victims who might prefer, and be better served by, a non-adversarial process that is centered on their needs, namely, restorative justice.  However much improved, adversarial adjudication directed at convicting and incarcerating offenders risks re-traumatizing victims rather than promoting healing.  It denies victims any significant control over the process, including control over their own narratives. We explore the value of restorative justice processes as an alternative that, in many criminal cases, may be preferable from victims’ perspective.  We acknowledge that restorative justice processes are rarely employed in sexual assault cases in the United States and that prosecutors may have reasons, independent of victims’ perceived interests, for preferring the adversary process, a criminal conviction and imprisonment.  Further, some victims’ advocates regard restorative justice as particularly inappropriate in the context of sexual assaults. Nonetheless, we suggest that when victims voluntarily choose to engage in a restorative justice process, it may be healing, because it gives victims agency in seeking a reckoning that fits with their particular needs and offers possibilities for addressing and repairing the harm that a criminal prosecution cannot.

December 26, 2019 in Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (2)

Tuesday, December 24, 2019

"An Intellectual History of Mass Incarceration"

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

There is much criticism of America’s sprawling criminal system, but still insufficient understanding of how it has come to inflict its burdens on so many while seemingly accomplishing so little.  This Article asks, as Americans built the carceral state, what were we thinking?  The Article examines the ideas about criminal law that informed legal scholarship, legal pedagogy, and professional discourse during the expansion of criminal legal institutions in the second half of the twentieth century.  In each of these contexts, criminal law was and still is thought to be fundamentally and categorically different from other forms of law in several respects.  For example, criminal law is supposedly unique in its subject matter, uniquely determinate, and uniquely necessary to a society’s wellbeing.  This Article shows how this set of ideas, which I call criminal law exceptionalism, has helped make mass incarceration possible and may now impede efforts to reduce the scope of criminal law.  The aim here is not to denounce all claims that criminal law is distinct from other forms of law, but rather to scrutinize specific claims of exceptionalism in the hopes of better understanding criminal law and its discontents.

December 24, 2019 in Purposes of Punishment and Sentencing, Recommended reading, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Wednesday, December 18, 2019

Drug Policy Alliance releases big new report titled "Rethinking the 'Drug Dealer'"

As detailed in this press release, yesterday "the Drug Policy Alliance released a new report making the case for rethinking the way the United States responds to the 'drug dealer'."  Here is more from the press release that serves as a kind of summary of the full report:

The report demonstrates how the United States’ punitive approach to people who sell or distribute drugs — rooted in stigma, ignorance and fear, rather than evidence — has done nothing to reduce the harms of drug use or improve public safety, while instead creating new problems and compounding those that already exist....

“With a record 70,000 deaths from accidental overdose in 2017, people are understandably searching for solutions, but applying harsh penalties to drug sellers scapegoats people who are more often than not drug users as well, while ignoring the larger issue,” said Lindsay LaSalle, Managing Director of Public Health Law and Policy at the Drug Policy Alliance.  “Instead, we should be using the same resources and determination to reduce the actual harms of both drug use and drug prohibition, repair the criminal legal system’s discriminatory response to the drug trade, and increase access to evidence-based treatment and support services that benefit health, public safety and economic opportunity in the long term.”

Among the flaws in the current system, the report highlights the following:

  • Current laws were created on the premise that they would reduce overall supply, and in turn, consumption. In reality, the opposite has occurred. We have increased the number of people incarcerated for selling or distribution offenses by 3000% — from 15,000 in 1980 to 450,000 today — and drugs are more readily available, at significantly lower prices.
  • Nearly half of people who have reported selling drugs also meet the criteria for a substance use disorder, supporting the idea that they are selling drugs, to an extent, to support their own dependency.
  • Laws against drug selling are so broadly written that people arrested with drugs for personal use can get charged as “dealers,” even if they were not involved in selling at all.
  • While the criminal legal system purports to focus on high-level sellers, the data show that supply-side criminalization disproportionately impacts the lowest-level people on the supply chain.
  • The current system has a discriminatory impact on communities of color, despite the fact that data suggest white people are slightly more likely than Black or Latinx people to report having sold drugs....

Accordingly, DPA has provided a set of tailored recommendations based on three broad principles:

  • First, to the maximum extent possible, society should deal with drug involvement outside the destructive apparatus of criminalization — and to the extent that the criminal justice system continues to focus on drug selling and distribution, it must do so with a commitment to proportionality and due process.
  • Second, we should focus on reducing the harms of drug distribution (for example, reducing drug market-related violence), rather than attempting to eliminate drug market activity.
  • Third, we must take seriously the criminal justice system’s discriminatory response to the drug trade and work toward reforms that both repair the harm already done while preventing further harm to communities of color and poor communities.  With the report public, DPA aims to expand the current public dialogue around drug reform, to focus on who the people now labeled “drug dealers” in the United States really are and how we, as a society, can respond to them in ways that will keep people and communities safer and healthier.

The full 76-page report can be accessed at this link and a two-page executive summary is available here.

December 18, 2019 in Drug Offense Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Friday, December 13, 2019

"Incapacitating Errors: Sentencing and the Science of Change"

The title of this post is the title of this notable new article authored by Eve Hanan and recently posted to SSRN.  Here is its abstract:

Despite widespread support for shifting sentencing policy from “tough on crime” to “smart on crime,” reflected in legislation like the federal First Step Act, the scope of criminal justice reform has been limited.  We continue to engage in practices that permanently incapacitate people while carving out only limited niches of sentencing reform for special groups like first-time nonviolent offenders and adolescents.  We cannot, however, be “smart on crime” without a theory of punishment that supports second chances for the broadest range of people convicted of crimes.

This Article posits that the cultural belief that adults do not change poses a major impediment to “smart on crime” policies.  Current sentencing policies focus on long-term incapacitation of adults with criminal records because of our folk belief that adult personality traits are immutable.  Whereas adolescents are expected to mature over time, and thus can rarely be determined to require permanent incapacitation, adults lack the benefit of the presumption of change.

Standing in contrast to our folk belief that adults do not change is a growing body of neuroscientific and psychological literature that this Article refers to as, “the science of adult change,” which demonstrates that adult brains change in response to environmental prompts and experience.

The science of adult change has powerful implications for punishment theory and practice. In its broadest sense, the science of adult change supports an empirically grounded, normative claim that sentencing should not attempt to identify the true criminal to permanently exclude.  Rather, sentencing policy should engage in only modest predictions about future behavior.  The presumption of reintegration as a full member of society should be the norm.  Moreover, because adult change occurs in response to environmental stimuli, the science of adult change supports both public accountability for the conditions of confinement and, ultimately, a challenge to incarceration as our primary means of responding to social harm.

December 13, 2019 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (1)

Thursday, December 12, 2019

"Second Looks & Criminal Legislation"

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

This Essay explores the relationship between second look sentencing and retributive theory by focusing on the primary vehicle for authorizing and distributing punishment in most American jurisdictions: criminal legislation.  Looking beyond debates over the import of evolving norms to desert judgments, the Essay argues that the central retributive issue presented by post-conviction judicial sentencing reductions is whether the long-term punishments imposed by criminal courts live up to the proportionality standards of any time period. 

Using the District of Columbia’s criminal statutes as a case study, the Essay explains how three pervasive legislative flaws — statutory overbreadth, mandatory minima, and offense overlap — combine to support (and in some instances require) the imposition of extreme sentences upon actors of comparatively minimal culpability.  The Essay argues that this code-based sentencing reality, when viewed in light of structural forces driving prosecutorial and judicial decisionmaking, provides very strong reasons to doubt the systemic proportionality of the severe punishments meted out in the District, as well as in other jurisdictions that suffer from similar legislative and structural problems.  And it explains why this epistemic uncertainty offers a compelling reason to authorize courts to reevaluate (and in appropriate cases reduce) severe punishments through second look sentencing reform — both in the District of Columbia and beyond.

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

Wednesday, December 11, 2019

Collateral Consequences Resource Center produces "Model Law on Non-Conviction Records"

I am please to see via this posting that the Collateral Consequences Resource Center (CCRC) has now officially published an important new model law on a topic that I suspect even many criminal justice actors do not realize is a big problem.  Specifically, CCRC has now produced a "Model Law on Non-Conviction Records," and the posting helps explain the background and why this is so timely and valuable:

An advisory group drawn from across the criminal justice system has completed work on a model law that recommends automatic expungement of most arrests and charges that do not result in conviction.  Margaret Love and David Schlussel of the Collateral Consequences Resource Center served as reporters for the model law.  It is available in PDF and HTML formats.

“Many people may not realize how even cases that terminate in a person’s favor lead to lost opportunities and discrimination,” says Sharon Dietrich, Litigation Director of Community Legal Services of Philadelphia, and one of the advisors of the model law project.  “Over the years, my legal aid program has seen thousands of cases where non-convictions cost people jobs.”

In proposing broad restrictions on access to and use of non-conviction records, the project aims to contribute to conversations underway in legislatures across the country about how to improve opportunities for people with a criminal record.  Already in 2019, states have enacted more than 130 new laws addressing the collateral consequences of arrest and conviction.  The group regards its model as the first step in a broader law reform initiative that will address conviction records as well.

Law enforcement officials make over 10 million arrests each year, a substantial percentage of which do not lead to charges or conviction.  Records of these arrests have become widely available as a result of digitized records systems and a new commerce in background screening and data aggregation.  These checks often turn up an “open” arrest or charges without any final disposition, which may seem to an employer or landlord more ominous than a closed case.

Very few states have taken steps to deal with the high percentage of records in repositories and court systems with no final disposition indicated.  Paul McDonnell, Deputy Counsel for New York’s Office of Court Administration and a project advisor, noted: “Criminal records that include no final disposition make it appear to the untrained eye that an individual has an open, pending case, which can have serious results for that person. New York has recently made legislative progress in addressing this problem, though more can be done.”

Current state and federal laws restricting access to and use of non-conviction records have limited application and are hard to enforce.  Eligibility criteria tend to be either unclear or restrictive, and petition-based procedures tend to be burdensome, expensive, and intimidating.  In recent years, lawmakers and reform advocates have expressed a growing interest in curbing the widespread dissemination and use of non-convictions, leading some states to simplify and broaden eligibility for relief, reduce procedural and financial barriers to access, and in a handful of states to make relief automatic.

Rep. Mike Weissman, a Colorado State Representative and model law project advisor, noted that Colorado has recently overhauled its laws on criminal records with broad bipartisan support.  “It is heartening to see similar reforms underway in other states, both red and blue, as well.  I commend the practitioners and researchers who helped formulate the model law for illustrating avenues for further progress in reducing collateral consequences.”

The model law would take this wave of criminal record reforms to a new level.  It recommends that expungement be immediate and automatic where all charges are terminated in favor of an accused.  Uncharged arrests should also be automatically expunged after a brief waiting period, as should dismissed or acquitted charges in cases where other charges result in conviction.  Cases that indicate no final disposition should also be expunged, unless there is indication that they are in fact pending.

The model law also recommends that expunged non-conviction records should not be used against a person in a range of criminal justice decisions, including by law enforcement agencies.  It would prohibit commercial providers of criminal background checks from disseminating expunged and dated non-conviction records, and civil decision-makers from considering them....

The Collateral Consequences Resource Center organized this model law project.  An early draft of the model law was discussed at an August 2019 Roundtable conference at the University of Michigan that was supported by the Charles Koch Foundation.  The model law report was supported by Arnold Ventures.

December 11, 2019 in Collateral consequences, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Monday, December 09, 2019

"The Problem of Problem-Solving Courts"

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

The creation of a specialized, “problem-solving” court is a ubiquitous response to the issues that plague our criminal legal system.  The courts promise to address the factors believed to lead to repeated interactions with the system, such as addiction or mental illness, thereby reducing recidivism and saving money.  And they do so effectively — at least according to their many proponents, who celebrate them as an example of a successful “evidence-based,” data-driven reform.  But the actual data on their efficacy is underwhelming, inconclusive, or altogether lacking.  So why do they persist?

This Article seeks to answer that question by scrutinizing the role of judges in creating and sustaining the problem-solving court movement.  It contends problem-solving courts do effectively address a problem — it is just not the one we think.  It argues that these courts revive a sense of purpose and authority for judges in an era marked by diminishing judicial power.  Moreover, it demonstrates that the courts have developed and proliferated relatively free from objective oversight.  Together, these new insights help explain why the problem-solving court model endures.  They also reveal a new problem with the model itself — its entrenchment creates resistance to alternatives that might truly reform the system.

December 9, 2019 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Sunday, December 08, 2019

"From Warfare to Welfare: Reconceptualizing Drug Sentencing During the Opioid Crisis"

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

The War on Drugs officially began in 1971 when President Nixon decried drug abuse as “public enemy number one.”  The goal of the war rhetoric was clear — to cast drug abuse and the drug offender as dangerous adversaries of the law-abiding public, requiring military-like tactics to defeat.  Criminal sentencing would come to be the main weapon used in this pressing combat.  In continuation of the war efforts, the Anti-Drug Abuse Act of 1986 was passed under President Reagan, establishing a weight-based, and highly punitive, mandatory minimum sentencing approach to drug offenses that has persisted in some form for the last thirty years.  When the Act passed, crack cocaine was touted as the greatest drug threat, and crack cocaine offenders — the vast majority of whom were Black — were subjected to the harshest mandatory minimum penalties.  Like any war, the consequences of the War on Drugs has had widespread casualties, including (but not limited to) the devastation of many communities, families, and individuals; the increase in racial disparities in punishment; and fiscal catastrophe in penal systems across the country.  What the War on Drugs has not done is eradicate drug abuse in the United States.  And now, nearly fifty years after drugs became our national enemy, we have a new face of drug crime — the opioid addict.

The current Administration has recognized that “[d]rug addiction and opioid abuse are ravaging America.”  However, rather than ramping up punishment for opioid offenders through lengthier drug sentencing, in October 2017 the opioid crisis officially became a Public Health Emergency under federal law.  And while it is largely understood that this was mostly a symbolic statement with little practical effect, the rhetoric is markedly different than it was during the purported crack epidemic of the 1980s. Rather than drug offenders being the enemy, the opioid addict has been cast as the American Everyman, and the opioid addiction problem has become known as the “crisis next door” that “can affect any American, from all-state football captains to stay-at-home mothers.”

Now that the drug emergency is portrayed as destroying wholesome American communities — as opposed to poor, crime-ridden communities of color — the tone has changed from punishment toward treatment and rehabilitation.  The National Institute on Drug Abuse (NIDA) at the National Institutes of Health (NIH) has described opioid misuse and addiction as “a serious national crisis that affects public health as well as social and economic welfare.”  While we are in the midst of this shift in messaging about drug addiction, it is an ideal time for drug sentencing as a whole to be reconceptualized from use as a weapon — designed to destroy — to having a public welfare agenda.  To do this it requires recasting potential drug offenders as community members, rather than enemies.  This change in perspective and approach also necessitates understanding drug crime as undeterred by incarceration.  The tasks must be to decide on a goal of drug sentencing, and to develop multifaceted approaches to address and eradicate the underlying sources of the drug problem.  When this is done, we may find that more appropriate purposes of punishment — rehabilitation and retribution — compel us to think beyond incarceration, and certainly mandatory minimum sentencing laws, as the appropriate punishment type at all.

December 8, 2019 in Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (0)

Wednesday, November 27, 2019

Deputy AG Rosen continues his hypocritical attacks on local prosecutors for "nonenforcement of the law"

In this post a few weeks ago, I noted and criticized this speech delivered by Deputy Attorney General Jeffrey Rosen at the Wake Forest School of Law.  In my post, I noted that the speech emphasizes making the reduction of violent crime a priority and then assailed local DAs for giving less attention to non-violent crimes.  The speech also complained about DAs adopting non-prosecution strategies for certain low-level offenses without addressing the fact that the federal government for a full decade has formally or functionally adopted non-prosecution strategies with respect to state-compliant federal marijuana offenses.  

Well, DAG Rosen is at it again, this time with this new Washington Post piece run under the headline "'Social justice reform' is no justice at all."  Here are excerpts:

Unfortunately, a trend is emerging that could threaten the hard-fought progress in public safety. A small but troubling number of state and local prosecutors are vowing that they will not enforce entire categories of core criminal offenses as part of a misguided experiment in “social justice reform.”

A prosecutor has a vital role: to enforce the law fairly and keep the public safe. These purportedly progressive district attorneys, however, are shirking that duty in favor of unfounded decriminalization policies that they claim are necessary to fix a “broken” system.

The Philadelphia district attorney, for instance, has in effect decriminalized thefts of up to $500.  Boston’s district attorney actually campaigned, before her election last year, with a list of crimes her office would not prosecute — including drug distribution, “larceny under $250,” receiving stolen property, trespassing, malicious destruction of property and resisting arrest.

In San Francisco, the new DA has vowed not to prosecute “quality of life” crimes such as public urination and prostitution. And the new DA in Fairfax County said during his campaign that he wouldn’t prosecute as a felony any larceny below $1,500 (ignoring the state threshold of $500), would not seek cash bail for felonies and would charge unlawful immigrants more leniently than U.S. citizens for the same crimes in order to circumvent the immigration consequences of the crimes.

While the Trump administration is dedicated to enforcing federal criminal law, as shown by the record number of violent crime prosecutions during the past two years, not every state crime is prosecutable as a federal offense. Contrary to the belief that inspires these so-called social justice policies, the “system” is not broken. Just as violent crime rates are near historic lows, national incarceration rates have also fallen 13 percent over the past decade, hitting a 20-year low, according to a 2019 report by the Bureau of Justice Statistics.

Those who still believe that certain criminal laws hinder “social justice” should vote for a legislature, not a prosecutor, to address their concerns.  Outright nonenforcement of the law is an affront to the separation of powers.  The legislative branch writes the law. The judicial branch interprets the law. And the executive branch — of which these prosecutors are a part — enforces the law.

Prosecutors have discretion to decide what individual cases to bring and how best to resolve them.  But the categorical refusal to enforce basic laws geared toward public safety goes far beyond prosecutorial discretion, violates the duty to enforce the laws as passed by the legislature and flies in the face of the fundamental concept that no one part of government exercises total control.

Prosecutorial policies that disregard core criminal laws — and the inflammatory rhetoric that often accompanies those practices — also erode respect for the rule of law.  These prosecutors risk demeaning the very institutions they are appointed to lead and fueling mistrust by promoting false narratives about the criminal-justice system and law enforcement.  The prosecutors are essentially flipping the script, casting criminals as victims and police as villains.  This distortion is not only demoralizing to law enforcement but also emboldens hostility toward both the rule of law and those entrusted with enforcing it.

As a general matter, I continue to be intrigued and troubled by an unelected federal prosecutor making proclamations about how elected local prosecutors ought to apply state laws.  Notably, the Philadelphia, Boston and San Francisco DAs all clearly articulated their planned prosecutorial policies during their campaigns and they will continue to be directly accountable to local voters.  But DAG Rosen was not elected by anyone and is not really directly accountable to anyone, and his appointed responsibility concerns only the application and enforcement of federal law.

And speaking of federal law, DAG Rosen ought to explain his own work in his own backyard before attacking state and local prosecutors.  Beyond the fact that the federal government has been formally or functionally engaging in "outright nonenforcement" of (state-compliant) federal marijuana offenses, in just Washington DC alone a simple Google search reveals dozens of marijuana offenders advertising in plain sight.  Of course, DAG Rosen is seemingly okay with "categorical refusal to enforce" federal marijuana law in these settings because there are very sound political and practical reasons for federal prosecutors to allocate its limited resources elsewhere.  But, as I commented in the prior post, apparently in the view of DAG Rosen, what is good for the (unelected) federal prosecutors in terms marijuana non-enforcement is no good for the (locally elected) state prosecutors.

Prior related post:

November 27, 2019 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (3)

Saturday, November 23, 2019

DVR alert for new documentary, "College Behind Bars"

CBB-hero_18x7Thanks to seeing this recent USA Today article, headlined "'Undoing a mistake': Ken Burns film looks inside the push to bring college education back to prison," I just set my DVR to record what looking like an important documentary for all policymakers and reform advocates.  Here are some highlights from the lengthy press article:

Stacks of books are organized meticulously by genre amid the chaos of a maximum security prison.  A makeshift desk made from cardboard is placed over a sink in a cramped cell. A chalkboard is filled with Chinese symbols in a room filled with eager students in green jumpsuits. Late night studying. This isn’t the picture most Americans have of prison.

More often than not, violence, isolation and anger are what come to mind. But these scenes from a PBS documentary airing this month show viewers a different kind of prison life — the rigorous pursuit of higher education.

“College Behind Bars" follows students in the Bard Prison Initiative, a privately funded college program that began in 2001 in New York state prisons. For now, the roughly 300 students taking classes free of charge at the elite college are the exception. Most incarcerated individuals cannot afford a college education — and all are banned from applying for federal grants.

It wasn’t always this way. For decades, college prison programs flourished across the country. After the passage of the 1994 Crime Bill, Pell Grants were banned for those who are incarcerated. For the first time in more than two decades, a push to lift this ban is sparking bipartisan support. Last month, Congress introduced bills that would reinstate Pell Grant eligibility for those incarcerated as part of wider college affordability legislation.

For formerly incarcerated individuals, educational experts and advocates, it’s about time. They argue that post-secondary education behind bars will lower the likelihood that an individual returns to prison and that it will benefit society as whole. “Ninety-five percent of people who are in prison will get out,” Ken Burns, executive producer of the PBS film, told USA TODAY. “Do you want them as responsible, taxpaying citizens or people who have used their time in prison to hone their criminal skills?”

Incarcerated at 17, Jule Hall spent more than 20 years in prison and is one of the main figures in the PBS documentary, which airs Monday and Tuesday. The film trails Hall, a 2011 Bard Prison Initiative graduate who earned a bachelor's degree in German studies, as he navigates the parole process, is released from prison and enters the workforce.

Hall works at the Ford Foundation analyzing the impact of social justice grants — an experience he describes as "another Bard" because of the experts and cutting-edge ideas. "What BPI has achieved is exceptional, but I think it's only a small part of what can be done if we get serious about this," Hall said. "I want people to walk away from this film understanding that there are many more people who want to be involved in programs like this that are incarcerated, but they don't have the access or the possibility of doing so."

Access to education is at the heart of filmmaker Lynn Novick and producer Sarah Botstein's vision. When the two screened one of their films at a BPI class at Eastern Correctional Facility in New York, the engaging conversation they had with the inmates encouraged them to expose the program to more people. "After that one experience in the classroom, we walked out and just felt like, 'Oh my gosh, this is something everybody needs to know is happening,' " Novick said.

The official website for "College Behind Bars" is available at this link, where one can find an extended trailer and additional clips along with airing information for DVR setting.  (I realize I am showing my age when I talked about DVR setting, I expect (and hope) lots of younger folks will just stream this doc.) Here is how the documentary is briefly described on the official website:

College Behind Bars, a four-part documentary film series directed by award-winning filmmaker Lynn Novick, produced by Sarah Botstein, and executive produced by Ken Burns, tells the story of a small group of incarcerated men and women struggling to earn college degrees and turn their lives around in one of the most rigorous and effective prison education programs in the United States — the Bard Prison Initiative.

Shot over four years in maximum and medium security prisons in New York State, the four-hour film takes viewers on a stark and intimate journey into one of the most pressing issues of our time — our failure to provide meaningful rehabilitation for the over two million Americans living behind bars.  Through the personal stories of the students and their families, the film reveals the transformative power of higher education and puts a human face on America’s criminal justice crisis.  It raises questions we urgently need to address: What is prison for?  Who has access to educational opportunity?  Who among us is capable of academic excellence? How can we have justice without redemption?

November 23, 2019 in Prisons and prisoners, Purposes of Punishment and Sentencing | Permalink | Comments (1)

Friday, November 22, 2019

Sixth Circuit clarifies FIRST STEP creates eligibility for reduced sentence whenever Fair Sentencing Act "modified the statutory penalty"

Section 404 of the FIRST STEP Act of 2018 finally provided for retroactive application of statutory changes to reduce federal crack sentences put in place by the Fair Sentencing Act of 2010.  Simple as that might sound, lower courts are still struggling with all the different permutations of who may be eligible for a reduced sentence under FIRST STEP, and a Sixth Circuit panel addressed this issue in a short and effective opinion yesterday in US v. Beamus, No. 19-5533 (6th Cir. Nov. 21, 2019) (available here).  I recommend the opinion in full, but here is the essence in four paragraphs:

Beamus requested resentencing under the First Step Act.  The district court denied this request without reaching the merits, concluding that because the Sentencing Guidelines classify Beamus as a “career offender[],” he is “ineligible for [a] sentence reduction[] under the First Step Act.” ROA 13 at A-2.  Beamus appeals that determination, and the government concedes error.

Rightly so.  By its terms, the First Step Act permits Beamus to seek resentencing. He was convicted of an offense for which the Fair Sentencing Act modified the statutory penalty, and he has not received a reduction in accordance with that Act or lost such a motion on the merits.  The text of the First Step Act contains no freestanding exception for career offenders. Nor would one expect to see such an exception. It makes retroactive the Fair Sentencing Act’s changes to the statutory range for crack cocaine offenses....

It’s true, as the government notes, that the Fair Sentencing Act’s changes to the statutory penalty for Beamus’s drug offense also would have affected his guidelines range.  But that’s happenstance in this instance.  Beamus is eligible for resentencing because, and only because, the Fair Sentencing Act modified the statutory range for his offense.  That the Sentencing Guidelines also would have applied differently does not affect his eligibility for resentencing.

That Beamus is eligible for resentencing does not mean he is entitled to it. The First Step Act ultimately leaves the choice whether to resentence to the district court’s sound discretion.  See First Step Act of 2018, § 404(b); see also United States v. Hegwood, 934 F.3d 414, 418 (5th Cir. 2019).  In exercising that discretion, a judge may take stock of several considerations, among them the criminal history contained in the presentence report.  How do these considerations play out for Beamus?  That’s a question only the district court can answer.  We reverse and remand to give it the opportunity to do so.

November 22, 2019 in FIRST STEP Act and its implementation, New crack statute and the FSA's impact, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (1)

Wednesday, November 13, 2019

"Usual Cruelty The Complicity of Lawyers in the Criminal Injustice System"

Usual_cruelty_finalThe title of this post is the title of this notable new book authored by former public defender, Alec Karakatsanis.  The publisher, The New Press, provides this accounting of the book: 

From an award-winning civil rights lawyer, a profound challenge to our society’s normalization of the caging of human beings, and the role of the legal profession in perpetuating it.

Alec Karakatsanis is interested in what we choose to punish.  For example, it is a crime in most of America for poor people to wager in the streets over dice; dice-wagerers can be seized, searched, have their assets forfeited, and be locked in cages. It’s perfectly fine, by contrast, for people to wager over international currencies, mortgages, or the global supply of wheat; wheat-wagerers become names on the wings of hospitals and museums.

He is also troubled by how the legal system works when it is trying to punish people.  The bail system, for example, is meant to ensure that people return for court dates. But it has morphed into a way to lock up poor people who have not been convicted of anything.  He’s so concerned about this that he has personally sued court systems across the country, resulting in literally tens of thousands of people being released from jail when their money bail was found to be unconstitutional.

Karakatsanis doesn’t think people who have gone to law school, passed the bar, and sworn to uphold the Constitution should be complicit in the mass caging of human beings — an everyday brutality inflicted disproportionately on the bodies and minds of poor people and people of color and for which the legal system has never offered sufficient justification. Usual Cruelty is a profoundly radical reconsideration of the American “injustice system” by someone who is actively, wildly successfully, challenging it.

This Amazon page about the book provides a "look inside" that includes the introduction explaining that the book is primarily the collection of three notable essays by Alec Karakatsanis that have been previously published.  This recent Intercept piece has an interview with the author that gets set up this way:

Alec Karakatsanis's “Usual Cruelty: The Complicity of Lawyers in the Criminal Injustice System” should be assigned reading for every first-year law student.  Published last month by The New Press, the book is an unusually blunt takedown of a system the author never once refers to as a criminal “justice” system.  Litigated with the intellectual vigor of someone who has won a number of landmark fights in federal court, “Usual Cruelty” clearly lays out a case for why our criminal legal system is not broken, but doing exactly what it was designed to do.

At a time when talk of justice reform has become mainstream but risks becoming hollow, and phrases like “progressive prosecutor” contribute to the deception that we are, in fact, making progress, Karakatsanis is clear-eyed about the bigger picture. But while “Usual Cruelty” is ultimately an abolitionist book that calls on people to imagine a world with fewer laws and in which jails and prisons aren’t the default response to all social problems, Karakatsanis is also keenly aware of how lawyers can use the law’s tools to fight the law’s harm.  At Civil Rights Corps, the nonprofit he founded, Karakatsanis takes on cases challenging systemic injustices in the legal system — like cash bail and the systems of fines and fees that keep poor people in jail — which he says have become so “normalized and entrenched” they barely give us pause.

November 13, 2019 in Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

Monday, November 11, 2019

Ironies abound as Deputy AG complains about "whole categories of drug crimes ... being ignored and not enforced" by prosecutors

I just had some time today to review this notable speech delivered this past Friday by Deputy Attorney General Jeffrey Rosen at the Wake Forest School of Law.  As always, I recommend the speech in full because there is too much in the DAG's remarks for me to reprint and engage them all here.  But, as I read though the speech's laments about the failure to enforce drug laws, I could not help but wonder if the DAG gave any thought to DOJ's own persistent disinclination to prosecute the many thousands of (federally illegal) recreational marijuana businesses that operate openly in nearly a dozen US states.  This thought was among the many ironies I saw as DAG Rosen in this speech praises federal crime fighting efforts while criticizing the work of some local prosecutors. Here are some extended excerpts followed by a bit more commentary:

At the Department of Justice, reducing violent crime is one of our top priorities....  So let me start this discussion about violent crime with this simple observation: To understand what works in combating crime, one need look no further than the highly successful efforts of state and federal law enforcement over recent decades.  In the early 1990s, crime reached an all-time high.  Violent crime and murder rates in particular had steadily increased over the preceding decades. Many major American cities and communities were not safe places to live or work.

In response to this troubling trend, legislatures increased penalties for gun offenders, prosecutors pursued stiff penalties for violent criminals, and the Department of Justice did its part by launching a series of nationwide initiatives to stem the tide of rising crime.  For instance, in 1991, the Department created Project Triggerlock, a highly successful program that vigorously pursued firearms cases by targeting the most-violent offenders.  A decade later, the Department launched Project Safe Neighborhoods or “PSN.”  As a crime reduction strategy, PSN focuses federal and state resources on the most pressing violent crime problems in our communities, and each district develops comprehensive solutions to address them....

After reaching a peak around 1993, crime steadily declined for the next 20-plus years.  Violent crime was cut in half.  A study published in 2009 concluded that PSN successfully reduced violent crime with case studies showing reductions as high as 42 percent in certain locations.

Unfortunately, after decades of improvement, a reversal took place, with stunning increases in violent crime in 2015 and 2016.  Homicides alone increased by more than 20 percent.  Concerned that we were at risk of losing ground, the incoming Trump Administration and the Justice Department snapped into action and returned to tried-and-true strategies for reducing crime.

In his first month in office, President Trump issued a series of executive orders “designed to restore safety in America.”  In response, the Attorney General announced the reinvigoration of Project Safe Neighborhood as a centerpiece of the Administration’s strategy to reduce violent crime.  In October 2017, Attorney General Sessions directed all 93 U.S. Attorneys to implement enhanced violent-crime reduction programs and to reinvigorate partnerships with state, local, and tribal law enforcement.... Since redoubling our efforts in this way, we have increased federal firearm prosecutions by over 40 percent compared to the last two years of the previous administration. The joint state-and-federal efforts have worked, and the objective statistics prove it.

The FBI recently released its annual crime statistics for 2018, and, for the second consecutive year, the number of violent crimes decreased nationwide.  In 2018, the violent crime rate decreased 3.9 percent from 2017, and the rate for nearly every type of violent crime decreased as well....

Unfortunately, a dangerous trend is emerging that threatens to blunt the progress we’ve made in reducing crime.  Despite the obvious successes, a small but increasing number of state and local district attorneys have vowed not to enforce entire categories of core criminal offenses as part of a misguided experiment in social justice reform.  From Philadelphia in the East to Dallas in the middle and Seattle in the West, a curtain of non-enforcement policies has descended on some unfortunate cities and counties.

It’s a problem Attorney General Barr highlighted in a speech to the Fraternal Order of Police in August.  There, he spoke of “the emergence in some of our large cities of District Attorneys that style themselves as ‘social justice’ reformers, who spend their time undercutting the police, letting criminals off the hook, and refusing to enforce the law.”

The radical decriminalization policies these social-reform DAs have publicly announced and implemented are truly shocking when they are made transparent.  Despite a decade of record-level drug overdose fatalities, whole categories of drug crimes, including several distribution offenses, are being ignored and not enforced.  Likewise, criminals who commit theft below certain thresholds, such as below $500, are given a free pass.  In several jurisdictions, reform DAs have effectively decriminalized prostitution, making it more difficult to fight human trafficking.  If those weren’t surprising enough, social-reform DAs have announced that the categories of malicious destruction of property, and shoplifting, will go unprosecuted.  The same with regard to criminal threats.  Even offenders who resist arrest and assault law enforcement officials are skating prosecution under these DAs’ non-enforcement policies.

At the Justice Department, we emphasize working closely with our state and local law enforcement colleagues.  But I am concerned that these social reform DAs are falling down on the job.  A prosecutor’s duty is straightforward — enforce the law fairly and impartially and keep the public safe.  By refusing to prosecute basic offenses, social reform DAs are failing to fulfill that vital obligation.  No society can have justice when stealing has been effectively licensed, open-air drug markets are allowed to flourish, and neither victim nor police officer trust that those who break the law will be held accountable....

Not only will these non-prosecution strategies inevitably make communities less safe, they also undermine our constitutional system of separation of powers.  It doesn’t take a law degree from a fine institution like Wake Forest to understand the principle that the legislative branch writes the law; the judicial branch interprets the law; and the executive branch enforces the law. District attorneys, of course, are part of the executive branch, responsible for enforcing the law. By refusing to prosecute broad swaths of core criminal offenses, social-reform DAs are ignoring duly-enacted laws in favor of their own personal notions of what they think the law should be....

Now, with regard to these DA’s personal policy preferences, let me turn briefly to the issue of prosecutorial discretion. There is no question that prosecutors have discretion to decide what cases to prosecute and how to spend their limited resources.  But these DAs are not making individualized decisions based on the facts and circumstances of particular cases. They are predetermining whole categories of offenses for non-enforcement.  They are effectively legislating through inaction.  And the offenses they are unilaterally striking from the books are not antiquated or rare; they are basic criminal laws directed at maintaining public safety.  These DAs’ decriminalization strategies go far beyond prosecutorial discretion and fly in the face of the fundamental concept that no one part of the government exercises total control of our legal system. If you believe in the rule of law, that is a problem....

Some have argued that recent criminal justice reform legislation like the First Step Act represents a repudiation of historical law enforcement practices.  Not so. There was wide bi-partisan support for the First Step Act.  Among other things, that legislation focuses on reducing recidivism, to help prevent future crimes. The Department of Justice and our Bureau of Prisons have made implementing that legislation a priority, as Attorney General Barr and I have both emphasized.

Let me give you a few illustrations: In addition to sentence reductions that have resulted in the release of more than 4,700 inmates, we have updated policies for inmates to obtain “compassionate release,” and since the Act was signed into law, 107 inmates have received compassionate release, compared to 34 in 2018.  We launched a pilot program that has allowed over 260 elderly or terminally-ill inmates to transition to home confinement.  We have further individualized drug-treatment plans, so about 16,000 inmates are now enrolled in recovery programs.  And to reduce recidivism, we are advancing re-entry programming to help past offenders find work and relaunch their lives.

But here is the key point about these improvements from the First Step Act: It is only because of the success of the law enforcement approaches of the last several decades that we had the opportunity to consider and implement these improvements to the criminal justice system. And a key part of fighting crime and protecting victims is helping to make sure that when these prisoners are released — as many of them will be, after serving their sentences — we give them the best possible chance at not re-offending. It’s about public safety, plain and simple....

Finally, let me address one other aspect of the non-enforcement policy problem.  Some defenders of reform DAs claim that the non-prosecution strategies merely reflect the will of the communities that elected them.  If that were so, one wonders why those communities’ legislators would not simply change the laws to reflect their constituents’ views. Indeed, one reason greater transparency about these non-enforcement policies is warranted is that it is far from clear that the public knows and wants prosecutors to tolerate crimes like burglary and theft without enforcement.

Do you think Americans really want prosecutors who won’t enforce whole categories of laws?  It can be hard to overlook that some of these social reform DAs were elected in low-turnout primaries backed by unusual funding from out-of-state ideological advocates.  But elections are up to voters, so I do not mean to address any individual jurisdiction or any particular DA; my question is what kind of system will we have if our laws are simply to be ignored?  And I am especially focused on the problem that non-enforcement policies present to the goal of continuing to reduce violent crime and make our communities safer.

I find jarring that this speech starts with an emphasis on making the reduction of violent crime a priority and then assails local DAs for giving less attention to non-violent crimes. It seems deeply misguided to say in blanket terms that "non-prosecution strategies inevitably make communities less safe" when the non-prosecution policy involves, say, low-level marijuana offices.  Of course, the biggest irony here is that the federal government for the last decade has been pursuing various "non-prosecution strategies" with respect to state-compliant federal marijuana offenses.  Notably, the range of non-enforcement policies adopted by the feds have obviously not undermined "the goal of continuing to reduce violent crime and make our communities safer."  But apparently, in the view of DAG Rosen, what is good for the (essentially unelected) federal prosecutors in terms marijuana non-enforcement is no good for the (locally elected) state prosecutors.

Adding to the ironies here is DAG Rosen's praise and commitment to the FIRST STEP Act.  I am so very pleased to see DAG Rosen praise the reduction of thousands of federal sentences, the early releases to home confinement, the individualized drug-treatment plans, and other efforts to advance re-entry programming to help past offenders.  But I surmise that this work is in much harmony with what progressive prosecutors are committed to doing: finding alternatives to excessive prison terms, addressing public health problems like addiction outside the criminal justice system, and helping offenders "find work and relaunch their lives."  I also think progressive prosecutors would generally acknowledge that low crime rates help provide "the opportunity to consider and implement these improvements to the criminal justice system."  In other words, I believe progressive prosecutors are concerned about "public safety, plain and simple," but they reasonable believe that they can achieve that end without turning to law enforcement and the prison system to address every societal issue.

November 11, 2019 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (1)

Thursday, November 07, 2019

"Taking a second look at life imprisonment"

The title of this post is the headline of this notable new Boston Globe commentary authored by Nancy Gertner and Marc Mauer. Here are excerpts:

While there has been a great deal of attention in recent years to the impact of the drug war on growing prison populations, in fact, the main drivers of the prison system now are excessive sentences for violent offenses.

The statistics are troubling.  There are as many individuals [in Massachusetts] serving life sentences as the entire state prison population in 1970, and more than half are black or Latino. Of the 2,000 lifers in the state, about half are not eligible for parole.  Barring executive clemency, they will die in prison after spending decades behind bars.

Since 90 percent of lifers nationally have been convicted of serious violent crimes, supporters of lifelong incarceration argue that incapacitating such people is an effective crime-control mechanism.  In fact, it is the opposite: It is counterproductive for public safety.

Criminologists know that individuals “age out” of crime.  Any parent of a teenager understands that misbehavior, often serious, is all too common at this stage.  FBI arrest data show that the rate of arrest for teenage boys rises sharply from the mid-teen years through the early 20s but then declines significantly. Arrests for robbery, for example, peak at age 19 but decline by more than half by age 30 and by three-quarters by age 40. The same is true for other violent crimes.

The reason is clear.  As teenage boys enter their 20s, they lose their impulsivity, get jobs, find life partners, form families, and generally take on adult roles.  Violent behavior becomes less attractive.

For public safety purposes incarcerating people past age 40 produces diminishing returns for crime control; less and less crime is prevented by incapacitation each year.  This impact is magnified by resource tradeoffs.  National estimates for the cost of incarcerating an elderly person are at least $60,000 a year, in large part due to the need for health care.  With finite public safety resources, these costs are not available to invest in family and community support for the new cohort of teenagers, for whom proactive initiatives could lower the risk of antisocial behavior.

Legislation introduced by Representative Jay Livingstone of Boston and Senator Joe Boncore of Winthrop, along with 34 cosponsors, would help to ameliorate this problem in Massachusetts.  Under the bill’s “second look” provision, individuals serving life without parole would be eligible for a parole review after serving 25 years....

Recently, there has been a bipartisan critique of the effects of mass incarceration, particularly on low-income communities of color.  State policy makers across the country are exploring ways to reduce excessive prison populations without adverse effects on public safety.  The proposed “second look” provision offers one significant alternative.  It should be passed.

November 7, 2019 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Lots of capital headlines from the Lone Star State

Texas is always making news when it comes to the administration of the death penalty, and yesterday had a number of notable headlines about a number of notable cases:

An execution: "El Paso death row inmate Justen Grant Hall executed for woman's strangulation in 2002"

A removal from death row: "Bobby Moore's death sentence is changed to life in prison after lengthy court fights over intellectual disability"

Increasing attention to innocence claim for person scheduled to be executed Nov 20: "Texas is about to execute a man for murder. His lawyers say someone else confessed to the crime."

UPDATE:  A helpful reader made sure I did not miss another notable Texas capital headline today:

A stay: "Federal judge delays execution of “Texas Seven” prisoner over claims of religious discrimination"

 

November 7, 2019 in Death Penalty Reforms, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Monday, November 04, 2019

"Experimental Punishments"

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

The Cruel and Unusual Punishments Clause prohibits, under its original meaning, punishments that are unjustly harsh in light of longstanding prior practice.  The Clause does not prohibit all new punishments; rather, it directs that when a new punishment is introduced it should be compared to traditional punishments that enjoy long usage.  This standard presents a challenge when the government introduces a new method of punishment, particularly one that is advertised as more “progressive” or “humane” than those it replaces.  It may not always be obvious, for example, how to compare a prison sentence to a public flogging, or death by lethal injection to death by hanging. When the new method of punishment is introduced, it is often an experimental punishment whose constitutional status is not immediately clear.

This Article shows how usage over time clarifies the constitutional status of experimental punishments by revealing two types of data that may not be available at the time the punishment is adopted.  First, the degree of stable reception the punishment achieves over time indicates whether society has accepted the punishment as consistent with the overall tradition.  The Eighth Amendment is premised on the idea that long usage is the most reliable method of determining what is cruel and what is not.  The longer a practice is used, and the more universally it is received, the more likely it is to comport with the demands of justice.  On the other hand, failure to achieve long usage may be powerful evidence that a punishment is cruel.  Second, usage over time can reveal more clearly how harsh the effects of the punishment are in comparison to traditional punishments. Innovations in punishment such as long-term solitary confinement, involuntary sterilization, and three-drug lethal injection all appeared “progressive” and “humane” when first adopted, but usage over time has shown their effects to be unjustly harsh in comparison with the practices they have replaced.

November 4, 2019 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Wednesday, October 30, 2019

"The Case for Race-Based Sentencing"

The title of this post is the headline of this new Vice piece discussing an interesting sentencing issues being engaged by Canadian courts. The subheadline of the piece summarizes the essentials: "In a case that could change how judges punish Black people, Ontario's top court will soon decide how much systemic racism should be taken into account when sentencing." Here are excerpts (links from original):

[W]hen [Kevin] Morris was convicted of possessing a loaded gun, his first offence, Ontario Superior Court Justice Shaun Nakatsuru decided to reduce his sentence from four years to 15 months, noting the systemic disadvantages Morris faced in his life as a Black man growing up in Toronto.  Morris’s sentence was further reduced to one year because police interrogated him after he had requested a lawyer.

To help make his decision, Nakatsuru used a cultural assessment of Morris, written by a clinical social worker and consisting of interviews and data that gave insight on him.  In his judgment, Nakatsuru wrote, “You began to notice how many were dying in your neighbourhood. Dying of violence. You did not have a lot of options. You decided you would live with it. That you would survive. Yet at the same time, you felt hopelessness.”

But in the spring the Crown will challenge that decision in the Court of Appeal, arguing that the judge was too lenient in his decision. If Morris wins, it could set a precedent for the use of cultural assessments in sentencing....

Nana Yanful, a lawyer for the Black Legal Action Centre, one of the 14 interveners on Morris’s appeal case, says that Morris’s case gives courts a chance to address the circumstances of Black offenders. She says the courts should stop asking if race can be a reason for leniency, and start to ask, if the offender wasn’t Black, how likely is it that they would be involved with the criminal justice system?

Judges in Canada already consider personal circumstances such as mental health, age, and past criminal record when sentencing an offender. Since 1999 judges have been legally obliged to consider the systemic disadvantages Indigenous offenders experienced before sentencing.

This is called the Gladue principle, and came into effect after a Cree woman pleaded guilty to manslaughter and was handed a three-year prison sentence. The Crown requested a conditional sentence, due to the offender’s history of substance abuse and lack of education. The judge did not grant the request, since she was off reserve at the time of the murder.

But after the case went to the Supreme Court, and the sentencing decision was upheld, the court clarified a section of the Criminal Code that would allow judges to recommend restorative justice measures for Indigenous offenders, such as reduced sentencing.

There is no similar principle for Black offenders, who make up 9 percent of the federal prison population, even though Black people only represent 3.5 percent of the population. The Office of Correctional Investigators reported a 69 percent increase of Black inmates between 2005 and 2015. While lawyers and judges can request cultural assessments, it’s up to the presiding judge to decide if it’s appropriate based on the circumstances of the case.

In Nova Scotia there has been a growing trend of judges considering cultural assessments in sentencing Black offenders. In one notable Nova Scotia Supreme Court case, Honourable Justice Jamie Campbell reviewed the cultural assessment of an African Indigenous man convicted of second-degree murder, before sentencing him to life in prison in 2017. Although the cultural assessment did not lead to a lighter sentence, it prompted “a judge to struggle with difficult questions for which there may not really be entirely clear answers,” the decision stated.

“That is why the cultural assessment is both a fascinating and a challenging document,” Campbell wrote in his judgment. “It provides information that makes it harder, not easier, to reach a conclusion. That is a good thing. The challenge comes from acknowledging the role that race plays in the prevalence of violent crime among young African Nova Scotian men while not falling into racist traps.”

Nova Scotia has been collecting data for cultural assessments since 2016, with 20 total requests. And requests have been increasing: In 2018 there were five requests for cultural assessments, while 11 have been requested so far this year.

A defence win in Morris’s case would set the same standard in Ontario, and also affect the disproportionate rate of incarcerated Black people in Canada. “What we’ve been doing so far isn’t working. The disproportionate impact is leading to a disproportionate outcome,” Yanful said. “So let’s take a step back and see what the sentencing court, and what the criminal justice system can do to be able to address this issue meaningfully.”

October 30, 2019 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Sentencing around the world, Who Sentences | Permalink | Comments (0)

Saturday, October 19, 2019

You be the judge: what sentence for driver convicted of reckless homicides for accidentally killing children boarding school bus?

A helpful reader altered me to a heart-breaking story from Indiana which serves as an opportunity to considering what seems a fitting sentence for a crime with a horrible result but a result that was plainly not intended by the wrong-doer. Here are some details from this local article:

Nearly a year after Alyssa Shepherd drove past a stopped school bus, killing three siblings as they crossed a two-lane highway to board the bus, a Fulton County jury convicted her of reckless homicide in the children's deaths.  Shepherd, prosecutors say, was driving a pickup truck that struck and killed twins Xzavier and Mason Ingle, both 6, and their sister Alivia Stahl, 9, and also critically injured Maverik Lowe, 11, as they crossed the highway north of Rochester on Oct. 30.  Lowe, who's still recovering from his injuries, has had more than 20 surgeries since the crash.

Shepherd was found guilty Friday of three felony counts of reckless homicide.  The jury also found her guilty of a felony count of criminal recklessness and a misdemeanor count of passing a school bus causing injury when the arm is extended. She faces up to 21 years if given the maximum amount on each count.

The parents of Mason and Xzavier, Shane and Brittany Ingle, and Michael Stahl, Brittany's ex-husband and Alivia's dad, told reporters after the verdict that they were relieved, and have no sympathy for Shepherd, who they believe has shown no remorse for the crash.  "I don't think we'll ever feel closure," Brittany Ingle said. "But this will go toward healing."...

Earlier Friday, Shepherd took the stand in Fulton Superior Court. Family members of Shepherd and the victims, had filled the Fulton County courthouse this week to hear testimony from witnesses and law enforcement.  When asked by her attorney when it started to sink in that she’d hit and killed three children after driving past a school bus, Shepherd described emotions ranging from disbelief to hysteria.  But at first it was confusion, according to her testimony. She remembered seeing blinking lights and something that appeared to be a large vehicle.  But she didn't see a bus, Shepherd says, nor did she see the red sign telling her to stop.

When she'd realized what she'd done, Shepherd says she was hysterical.  "The only way I can describe it is an out-of-body experience," Shepherd said, according to the account provided to IndyStar by the small number of reporters who were allowed into the packed courtroom, "I was a mess."

The four children were crossing the highway to board their school bus about 7:15 a.m. when prosecutors say Shepherd blew by a stopped school bus.  The road was dark but prosecutors said the bus lights and stop arm were clearly visible.  Whether Shepherd was behind the wheel that morning was not being disputed, according to statements made from the defense and prosecution during the trial.  Jurors instead decided whether Shepherd’s actions were reckless or simply accidental....

Shepherd was driving with three children in the back seat of her Toyota Tacoma before the crash happened, according to court documents.  She had just dropped off her husband at work at about 7:05 a.m. and was heading to her mother's home in the Rochester area to drop off her little brother when she rounded a bend on Indiana 25.  She'd taken that road many times before, her attorney Michael Tuszynski said, but rarely at that time of day.

As she was driving, the 24-year-old Shepherd saw something in the distance, but couldn't quite make it out, according to Tuszynski, who said that a freightliner was behind the bus, making it appear to Shepherd as one large vehicle.  "The circumstances of the bus, with the freightliner behind it, combined to create the profile of one vehicle, making it seem like it's a semi that's moving. And she's confused about what she sees," he said.

But after the crash, the driver of another vehicle that was following Shepherd's Toyota through the bend on Indiana 25 said the school bus lights and stop arm were clearly visible even though the road was dark.  This is according to testimony from Indiana State Police detective Michelle Jumper during a probable cause hearing held hours after the crash.

The witness said she and Shepherd were traveling at 45 mph, Jumper testified.  The witness said she slowed when she saw the school bus and its blinking lights. Shepherd didn't. "Suddenly she sees the children," Tuszynski said Friday. "She brakes. But it was too late."  Shepherd's friend, Brittany Thompson, who spoke to Shepherd on the phone after the crash, testified that Shepherd said she'd seen the lights and was trying to negotiate how far to move over. Thompson said Shepherd was distraught. "I didn't know it was a bus," Shepherd reportedly said.

The victims' family told reporters that Shepherd appeared cold during the trial, and seemed unconcerned with the deaths that resulted from her actions. "When I was giving my testimony," Brittany Ingle said, "I looked her straight in the eyes and she gave nothing. She had no remorse."

Tuszynski said there was no evidence of drugs or alcohol in Shepherd's system at the time of the crash.  He placed blame on the location of the bus stop, which required the children to cross the highway to board the bus.  "The idea that it was OK to make those kids cross that busy road to get on a bus, rather than move the stop into the (trailer) park, is absurd," Tuszynski said.

The Tippecanoe Valley School Corporation announced shortly after the crash that it would relocate the bus stop into the trailer park where the students lived. Superintendent Blaine Conley testified Friday that the park had previously been considered for the location.  But officials were worried that the school bus could hit children in the area due to poor lighting.  The crash led to statewide changes, prompting the Legislature to increase penalties for drivers who illegally pass stopped school buses.  Shane and Brittany Ingle spent several days at the Statehouse this past year lobbying for the changes.

Via a google search, I found in this change.org petition titled "Alyssa Shepard should receive a life sentence for hitting 4 children, killing 3 of them." But it seems applicable Indiana law caps her possible sentence at 21 years.  And I would be eager to hear from readers if they think anything close to a maxed out prison sentence is appropriate in a case involving an (awful) accident. Is any prison sentence fitting?  How much should it matter that the family of the slain children seem eager for a severe term?  You be the judge.

October 19, 2019 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (17)

Friday, October 18, 2019

"The Trouble with Reentry: Five Takeaways from Working with People Returning to Chicago from Prison"

The title of this post is the title of this notable new report from the John Howard Association. Here is part of its executive summary: nbsp;

With political backing and public will, a new reentry system can and should be built.  A foundation is currently being laid through public-private partnerships that recognize the importance of meeting the basic needs of people leaving the justice system and going back to their communities. But for such a system to succeed, it ultimately must be grounded in the principle that“[t]he dignity of the individual will flourish when the decisions concerning his life are in his own hands, when he has the assurance that his income is stable and certain, and when he knows that he has the means to seek self-improvement.”

Over the last several months, John Howard Association of Illinois (JHA) staff had occasion to learn from several young adults (all black men in their early twenties) as they attempted to navigate the world of reentry services, mandatory supervised release and reintegration back into impoverished communities in Chicago after being imprisoned for several years in both Illinois Department of Juvenile Justice (IDJJ) youth centers and Illinois Department of Corrections (IDOC) adult prisons.  Our final impression from this experience is profound skepticism at the ability of the existing reentry framework to stem the continuous cycle of people exiting and returning to jail and prison. Both conceptually and in execution, reentry as a societal project — at least in its current incarnation — does not begin to adequately address even the most basic human needs (shelter, clothing, transportation, food, medication) of returning citizens.  That being said, we were moved and inspired by the patience, dedication and sacrifices of many on-the-ground direct service reentry workers and organizations that we encountered, who tirelessly work to triage and assist an onslaught of returning citizens with desperate needs— despite inadequate resources, unreliable funding streams, and myriad bureaucratic obstacles.

Following herein are some of JHA’s real-world observations made in the process of accompanying and, at times, endeavoring to assist people as they attempted to access critical reentry supports, resources and services following their release from prison.  These five key takeaways are based on our on the ground experience navigating reentry programs and opportunities with these young men shortly after their release from prison.  This list is in no way comprehensive or exhaustive.  Rather, it highlights just some of the more immediate, pressing needs and problems that the young men whom JHA met as they left prison experienced during their first few months after leaving prison.  There were also some bright, hopeful encounters along the way. In particular we met some extraordinary, persevering, compassionate, tireless reentry workers who are dedicated to assisting people returning from prison.  Our dive into the reentry process on the whole, however, illuminated some large gaps that exist for returning citizens trying to succeed.

October 18, 2019 in Purposes of Punishment and Sentencing, Recommended reading, Reentry and community supervision | Permalink | Comments (1)

Thursday, October 17, 2019

"Work, Pay, or Go to Jail: Court-Ordered Community Service in Los Angeles"

The title of this post is the title of this notable new report coming from folks at UCLA.  This webpage provides this overview of the report's coverage:

Work, Pay, or Go to Jail: Court-Ordered Community Service in Los Angeles is the first study to analyze a large-scale system of court-ordered community service in the contemporary United States.  It finds that court-ordered community service functions as a system of unregulated and coercive labor, which worsens the effects of criminal justice debt and displaces paid jobs.

Among other discoveries, the report finds:

  • Over 100,000 people in LA County register to perform mandated community service each year.  Because they are classified as volunteers, workers do not receive wages or labor protections from safety hazards, discrimination, or harassment.
  • Workers face widespread barriers to completing their community service.  Over two thirds of people from criminal court and about two in five from traffic court did not complete their hours in time.  Their inability to finish often led to penalties that court-ordered community service was established to avoid.
  • Community service annually supplants approximately 4,900 jobs in LA County, replacing 1,800 positions in the government sector alone.

Report authors recommend rolling back the threats of jail and court debt that force people into community service; expanding alternative sanctions that do not rely on forced, extractive labor; and transforming punitive mandatory community service into economic opportunity through paying jobs.

October 17, 2019 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Sunday, October 06, 2019

Lots of SCOTUS previews as a new Term starts with a criminal bang

Tomorrow morning is the first Monday in October, which means the start of Supreme Court oral arguments kicking off a new Term for the Court. This ABA Journal piece, headlined "SCOTUS opens new term with criminal law cases addressing insanity defense and unanimous juries," highlights how the Term start with extra intrigue for criminal justice fans. This piece starts this way:

The U.S. Supreme Court has several blockbuster cases in its new term — on gay and transgender rights, federal immigration enforcement and gun regulation. But before it gets to any of those, the court on the first day of the term will take up two criminal law cases raising significant questions, even though only a handful of states are affected by each.

In Kahler v. Kansas, the first case up for argument on Oct. 7, the question is whether the U.S. Constitution permits a state to abolish the insanity defense. Only four states besides Kansas—Alaska, Idaho, Montana, and Utah—do not recognize that defense.

In Ramos v. Louisiana, the justices will consider whether the 14th Amendment fully incorporates against the states the Sixth Amendment’s guarantee of a unanimous jury verdict.

“Both of these cases speak to a larger lesson,” says Brian W. Stull, a senior staff attorney with the American Civil Liberties Union. “The court, with justices on the left, center, and right, has been vigilant in insisting at a minimum on the common-law protections that defendants enjoyed at time of the founding.”

SCOTUSblog has these previews of Kahler and Ramos:

Bloomberg Law has this preview article looking at a number of the criminal cases for the term under the headline "Bridgegate, D.C. Sniper Feature in Packed SCOTUS Criminal Term."  Here is how it starts:

An action-packed U.S. Supreme Court term kicks off Oct. 7, and the criminal docket has a little something for everyone—the insanity defense, the D.C. sniper, the death penalty, the Fourth Amendment, and the New Jersey corruption saga known as “Bridgegate.”

These disputes and others mark the latest crime and punishment tests for the Roberts Court, which, after Justice Brett Kavanaugh replaced Justice Anthony Kennedy, is on more solid conservative footing.

But criminal cases can scramble the usual 5-4 line-ups, and in Kavanaugh’s first full term — Justice Neil Gorsuch’s third — court watchers are eager to see how the justices tackle these weighty questions.

October 6, 2019 in Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Saturday, October 05, 2019

"Infrequency as Constitutional Infirmity"

The title of this post is the title of this paper which was recently posted to SSRN and authored by Sam Kamin.  From its abstract:

In this Article, I argue that the infrequency with which the death penalty is currently being imposed in this country is one of the principal reasons that courts should intervene to prevent it.  Infrequency is the fatal flaw in the contemporary imposition of the death penalty for at least three reasons.  First, and most obviously, it demonstrates that the penalty has been rejected by contemporary society, and that as a result, its imposition is a cruel and unusual punishment under the Eighth Amendment.  Second, a punishment imposed so infrequently-and wantonly-can serve no valid penological interest.  The argument that the death penalty is necessary to deter crime, incapacitate offenders, or offer retribution to victims and society more generally is undercut by the fact that the percentage of all killers who receive the penalty is vanishingly small.  And finally, the infrequency with which the death penalty is currently imposed demonstrates that the fundamental problem identified by the Supreme Court in Furman v. Georgia in 1972 has not yet been solved.  Then as now, there is no principled way of distinguishing the very few cases in which the death penalty is imposed from the much larger pool of those eligible to receive the law's ultimate penalty.

October 5, 2019 in Death Penalty Reforms, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Monday, September 16, 2019

Just some (of many) perspectives on Felicity Huffman's sentencing

Lots of folks have lots of views on what we should make of the the sentencing of Felicity Huffman late last week to 14 days in incarceration in the college bribery scandal. Here are just a sampling of some of the pieces that caught my eye:

From CNN, "John Legend says prison is not always the answer after Felicity Huffman's sentence"

From Walter Palvo at Forbes, "Felicity Huffman And America's Failing Criminal Justice System"

From Fox News, "Felicity Huffman's 14 day prison sentence in college admissions scam sparks outrage on social media"

From Fox News, "Felicity Huffman's prison sentence 'more of a burden on the jail system' than on the actress: expert"

From David Oscar Marcus at The Hill, "Felicity Huffman's 14-Day Sentence is Unjust — Because It's Too High"

From Ellen Podgor at White Collar Crime Prof Blog, "More Varsity Blues — Privilege and Perspective"

To add my two cents, I will just say that I continue to be disappointed at our system's and our society's general failure to treat and view any sentencing terms other than imprisonment as "real punishment." Of course, most persons subject to any form of criminal investigation and prosecution will report that the process itself is very often a significant punishment and so too can be any period of supervision and the array of collateral consequences (both formal and informal and often lifetime) that always accompany a criminal conviction. But, problematically, the perception persists that anything other than prison, and often anything less than a lengthy period in prison, is but a trifle.

Prior related posts:

September 16, 2019 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (7)

Wednesday, September 11, 2019

"Violent Crime and Punitiveness: An Empirical Study of Public Opinion"

The title of this post is the title of this new paper now available via SSRN authored by Michael M. O'Hear and Darren Wheelock. Here is its abstract:

Evidence suggests that the public favors tough punishment for individuals who have been convicted of violent crimes, but why?  In order to better understand the factors that contribute to punitive attitudes toward violent crime, or “V-punitiveness,” we analyze data from a recent survey of Wisconsin voters as a part of the Marquette Law School Poll.  In sum, respondents generally supported prison terms for individuals convicted of violent crime, but this support was not unwavering and unconditional.  While analysis of these data identified several variables that correspond with higher levels of V-punitiveness, neither fear of violent crime nor personal experiences were among them.  Instead, V-punitiveness seems more closely tied to broader sets of social beliefs regarding individual responsibility, traditional values, and the like.

Our results suggest that tough responses to violent crime may be supported more for expressive than instrumental reasons.  Thus, efforts to change public policy in this area may need to contend with expressive considerations.  If reformers wish to change minds about legal responses to violent crime, instrumental arguments based simply on “what works” in reducing violent recidivism may come up short.

September 11, 2019 in Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Sunday, September 08, 2019

"Why America Needs to Break Its Addiction to Long Prison Sentences"

The title of this post is the headline of this recent Politico commentary authored by Ben Miller and Daniel Harawa." The piece carries the subheadline "Shorter sentences will end prison crowding and even reduce crime," and here are excerpts:

[A] pressing ... problem in our criminal legal system [is the] lack of meaningful mechanisms in place to allow people in prison to obtain release once they have proven to no longer pose a danger to our communities....  We have forgotten that our justice system is supposed to rehabilitate people, not just punish them....  Though some may point to parole as an option, the potential for release on parole has proven slim, with the federal government and 14 states having eliminated it completely.

For decades, while we made it increasingly difficult to obtain release, we have sent people to prison for longer and longer.  We became reliant on extreme sentences, including mandatory minimums, “three-strike” laws, and so-called truth-in-sentencing requirements that limit opportunities for people to earn time off their sentences for good behavior. As a result, the United States laps the world in the number of people it incarcerates, with 2.2 million people behind bars, representing a 500 percent increase over the past four decades, with 1 in 9 people in prison serving a life sentence....

[I]f we want to significantly reduce the number of people this country incarcerates, legislation is needed at the federal level and in every state to allow everyone after a certain period in prison the opportunity to seek sentence reductions. Sentence review legislation recognizes that as we have increased the length of prison sentences and limited the ability to obtain release, our prisons have become overwhelmed with people whose current conduct proves further incarceration is not in the public interest.

We increased sentence lengths and made it more difficult for people to be released because we were told it was needed for public safety.  But sending people to prison for long periods does not reduce crime. In fact, longer sentences, if anything, create crime.  David Roodman, a senior adviser for Open Philanthropy, reviewed numerous studies on the impact of incarceration and concluded that “in the aftermath of a prison sentence, especially a long one, someone is made more likely to commit a crime than he would have been otherwise.”

Not only are lengthy prison sentences ineffective at reducing crime, but they have devastated low-income and minority communities.  As the Vera Institute aptly put it: “We have lost generations of young men and women, particularly young men of color, to long and brutal prison terms.”  While black people are just 13-percent of the country’s population, they account for 40 percent of the people we incarcerate.

If the ineffectiveness of long prison terms or the impact on poor communities of color is not reason enough to revisit lengthy prison sentences, the financial drain of long prison terms is staggering.  For example, U.S. prisons spend $16 billion per year on elder care alone.  Billions of dollars are diverted to prisons to care for the elderly who would pose no real risk if released when that money could be going to our schools, hospitals, and communities.

Given this reality, we need to pursue every option that would safely reduce our prison population.  One proposal by the American Law Institute recommends reviewing all sentences after a person has served 15 years in prison.  Another example is the bill Sen. Cory Booker (D-N.J.) and Rep. Karen Bass (D-Calif.) introduced that would provide sentence review for anyone who has served more than 10 years in prison or who is over 50 years old.  Notably, neither proposal is restricted by the type of offense, which is critical, because to combat mass incarceration, to echo the Prison Policy Initiative, reform has “to go further than the ‘low hanging fruit’ of nonviolent drug offenses.”

The opposition to any sentence review policy is predictable.  Opponents will decry the danger of releasing “violent” people into the community.  This criticism is straight out of the failed tough-on-crime playbook that created the country’s mass-incarceration crisis in the first place.  It was this same message that pushed legislators and prosecutors for years to enact and seek extreme sentences that have overburdened prisons across the country.  This criticism rings hollow.

Measures that promote sentence review would not automatically release anyone.  Instead, people would be given a chance to show a court that they are no longer a danger to public safety.  A judge — after weighing all relevant circumstances, including hearing from any victims and their families — would then decide whether a person should be released....

Robust sentence review legislation that would help reduce both our prison population and the strain on government budgets must be part of every discussion about criminal justice reform.  Sister Helen Prejean has often said, “People are worth more than the worst thing they've ever done.”  Our policies should reflect the ability of people to change over the course of years — or decades — of incarceration.

September 8, 2019 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0)

Thursday, September 05, 2019

Public policy groups promote a "Vision for Justice 2020 and Beyond" with recommendations for criminal justice reform

As explained in this press release, the "Leadership Conference on Civil and Human Rights, Civil Rights Corps, and 115 civil rights and justice groups released a policy platform for the 2020 state and federal elections that proposes a unified vision for transforming our criminal-legal system into one that respects the humanity, dignity, and rights of all people."  Here is more from the press release:

The groups shared Vision for Justice 2020 and Beyond with presidential candidates this past summer to offer critical policy guidance for drafting robust criminal-legal reform agendas.  The 14 recommendations, listed below, are centered on three thematic issues: ensuring equity and accountability, building a restorative system of justice, and rebuilding communities.

The treatment of communities of color in the criminal-legal system is the most profound civil rights crisis facing America in the 21st century. This platform seeks to remove this moral stain on our democracy by offering specific, measurable steps to begin to transform the system.

Ensure Equity and Accountability in the Criminal-Legal System

  1. Create a new paradigm for public safety and policing.
  2. Create a new framework for pretrial justice.
  3. Ensure an effective right to counsel.
  4. Decriminalize poverty.
  5. Ensure accountability and transparency in prosecution.

Build a Restorative System of Justice

  1. End jails and prisons as we know them in America.
  2. Deprivatize justice.
  3. Dramatically reform sentencing policy.
  4. Support the children of incarcerated parents.
  5. Ease challenges to racial inequity and abolish slavery in prisons.

Rebuild Communities

  1. Rebalance spending priorities by investing in communities.
  2. Reimagine reentry, probation, and parole.
  3. Build a school-to-opportunity pipeline.
  4. End the War on Drugs.

September 5, 2019 in Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Wednesday, September 04, 2019

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

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

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

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

Tuesday, September 03, 2019

"Prosecutors, Democracy, and Justice: Holding Prosecutors Accountable"

The title of this post is the title of this notable new publication from the John Jay College of Criminal Justice's Institute for Innovation in Prosecution emerging from its series on Reimagining the Role of the Prosecutor in the Community.  This paper is authored by Jeremy Travis, Carter Stewart and Allison Goldberg, and here are the first two paragraphs of its introduction:

As the nation grapples with fundamental questions about the nature of our democracy, advocates for criminal justice reform see hope in the nascent focus on one of the most powerful stakeholders in the legal system: the prosecutor.   Across the country, prosecutor campaigns have shifted from debates over conviction rates and sentence lengths to candidates vying to show their commitment to ending mass incarceration and ameliorating other harms associated with the criminal justice system.  While 85 percent of incumbent prosecutors ran unopposed between 1996 and 2006, and 95 percent of elected prosecutors were white in 2015, recent elections saw unprecedented electoral competition and diversity in prosecutor races across the country.  As reform-minded prosecutors are elected in growing numbers, communities are holding them to account on their campaign promises to bring about deep criminal justice reforms.  At the core of this new era of prosecutorial accountability is a more fundamental question: are reformers justified in betting on our democracy, specifically the election of a new generation of prosecutors, as an avenue to justice reform?

The electoral wins of reform-minded prosecutors are certainly cause for optimism, but they also necessitate public discourse about what it means for prosecutors to play a role as agents of change. Certainly the reform agenda is daunting.  Even a campaign pledge to end mass incarceration by reducing the number of people in jails and prisons does not explicitly recognize the broader ways in which the state criminalizes and supervises large swaths of the US population, disproportionately low-income individuals and people of color, while affronting common standards of human dignity.  With over six million people under correctional supervision, excessive use of the arrest powers, and stubbornly high levels of distrust of the criminal justice system in the communities most directly impacted, the need to temper the justice system’s excessive reach remains urgent.  By promising to unwind the machinery that created this state of affairs, reform-minded prosecutors are tackling an enormous challenge.

September 3, 2019 in Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Wednesday, August 28, 2019

Highlighting the need for community supervision to focus on rewarding success

Marc Levin has this new Hill commentary under the headline "Our justice system must reward success."  Here are excerpts:

Given that 4.5 million Americans are on community supervision, the question of how many of them no longer require government control has far-reaching implications, both from a government fiscal standpoint and societally.  Fortunately, policymakers are increasingly focused on creating standards for whether continued supervision is needed that focus not on the past, but on the future.  Since 2007, 18 states have implemented policies allowing individuals on probation to earn time for exemplary performance.

Robust earned time and early termination policies for community supervision have proven effective for both public safety and taxpayers who fund probation and parole agencies. In 2008, Arizona enacted a law giving people on probation 20 days credit for each month they make progress on their treatment plan and avoid new arrests.  In the subsequent two years, the number of people on probation convicted of new crimes substantially declined.

This is not surprising given that research reveals that most recidivism occurs during the initial part of the supervision period.  Multiple studies show that people are most likely to recidivate right after being released than at the end of their supervision.  Similarly, after New York City early terminated low-risk people on probation, they were less likely to be re-arrested for a new felony during their first year off supervision than similar individuals who had remained on supervision.

Moreover, removing people for whom monitoring isn’t likely to improve public safety from the supervision rolls frees up probation and parole officers to supervise those who are at greater risk of committing a new crime.  This means these officers can do more than shuffle the files of 100 people on their caseload and instead provide interventions such as motivational interviewing that addresses the attitudes and behaviors of those most at risk to recidivate.

Despite the progress some jurisdictions have made in providing incentives for success and focusing supervision on those who need it, many others do not allow earned time or early termination.  Additionally, excessive supervision periods remain, ranging from up to 40 years on probation for some in Minnesota to lifetime parole sentences in Nebraska.

When it comes to community supervision, we must focus on how well the system achieves rehabilitation, not on maximizing its duration.  Let’s reward success by allowing people to demonstrate they are not a threat and earn their way off supervision.  Intensive supervision has a place for those most at risk of going back to their old ways, but in many cases, government can accomplish more by doing less.

August 28, 2019 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (1)

Sunday, August 18, 2019

Enduring examinations of the data and dynamics of modern mass incarceration

Professor John Pfaff's important book on modern criminal justice systems in the United States, Locked In: The True Causes of Mass Incarceration - and How to Achieve Real Reform, was published more than 2.5 years ago.  But the data and themes covered in this book remain quite timely, as well evidenced by two new pieces published this week.  The first is by Pfaff himself in Politico under the headline "What Democrats Get Wrong About Prison Reform." A paragraph from the start of this piece provides highlights: 

Drug crime is not what’s driving the high prison population in the United States.  It’s crimes of violence.  And this omission has consequences. It means that any “solution” is unlikely to achieve its intended goal and in the meantime society will continue to suffer long-term damage — physical, psychological and economic — from a persistent cycle of unaddressed violent crime.

The second is this much longer treatment of these important subjects in the Federalist Society Review under the title "Two Views on Criminal Justice Reform: The Author and a Critic on Locked In." This document has two terrific pieces: (1) an "An Interview with Professor John Pfaff" curated by Vikrant Reddy, and (2) "Refreshing Candor, Useful Data, and a Dog’s Breakfast of Proposals: A Review of Locked In by John Pfaff" authored by Kent Scheidegger. Here is how Scheidegger's review of Pfaff gets started:

John Pfaff gives us two books under one cover in Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform.  In the first book, he tells us that nearly everything we have been told about so-called mass incarceration by his fellow “reform” advocates is false.   His candor is a breath of fresh air. He convincingly makes the case with a mound of useful data.

The second book, in contrast, is thinly supported and heavily influenced by Pfaff’s predispositions.  He tells us that high incarceration rates are caused primarily by overcharging prosecutors, though his data do not rule out alternative hypotheses.  He claims that the election of tough prosecutors is caused by the “low-information, high salience electorate,” not by informed people who genuinely and justifiably disagree with him on priorities.   The primary ingredients in his stew of solutions are tools to save the ignorant masses from themselves by making our society less democratic and our criminal justice decision-makers less responsible to the people.  Other intriguing possibilities raised by his data go unexplored.

Pfaff does not define what he means by “reform,” but he appears to use that term for policies that have the single-minded purpose of reducing the number of people incarcerated.  Obviously, that is not the sole or universally accepted meaning of the term in criminal justice. The Sentencing Reform Act of 1984 definitely did not have that purpose.  In this review, I will put the word “reform” in quotation marks when used in Pfaff’s sense.

August 18, 2019 in Offense Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (0)

Tuesday, August 13, 2019

"After the Crime: Rewarding Offenders’ Positive Post-Offense Conduct"

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

While an offender’s conduct before and during the crime is the traditional focus of criminal law and sentencing rules, an examination of post-offense conduct can also be important in promoting criminal justice goals.  After the crime, different offenders make different choices and have different experiences, and those differences can suggest appropriately different treatment by judges, correctional officials, probation and parole supervisors, and other decision-makers in the criminal justice system.

Positive post-offense conduct ought to be acknowledged and rewarded, not only to encourage it but also as a matter of fair and just treatment.  This essay describes four kinds of positive post-offense conduct that merit special recognition and preferential treatment: the responsible offender, who avoids further deceit and damage to others during the process leading to conviction, the debt-paid offender, who suffers the full punishment deserved (according to true principles of justice rather than the sentence actually imposed), the reformed offender, who takes affirmative steps to leave criminality behind, and the redeemed offender, who out of genuine remorse tries to atone for the offense.

The essay considers how one might operationalize a system for giving special accommodation to such offenders.  Positive post-offense conduct might be rewarded, for example, through the selection and shaping of sanctioning methods, through giving preference in access to education, training, treatment, and other programs, and through elimination or restriction of collateral consequences of conviction that continue after the sentence is completed.

August 13, 2019 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)