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)

Monday, August 05, 2019

“MAGA Bomber” Cesar Sayoc sentenced to 20 years in prison despite LWOP guideline range

As reported in this CNBC piece, "'MAGA Bomber' Cesar Sayoc was sentenced to 20 years in prison on Monday for sending 16 mail bombs to 13 people around the United States last year, including leading critics of President Donald Trump such as former President Barack Obama, ex-Vice President Joe Biden, former Secretary of State Hillary Clinton, actor Robert De Niro and financier George Soros." Here is more about this high-profile sentencing:

“I am beyond so very sorry for what I did,” Sayoc said before he was sentenced in U.S. District Court in Manhattan by Judge Jed Rakoff, according to the Courthouse News service.

“Now that I am a sober man, I know that I a very sick man,” Sayoc reportedly said. “I wish more than anything that I could turn back time and take back what I did ... I feel the pain and suffering of these victims.”

But Rakoff said, “The nature and cirumstances of the instant offenses are, by any measure, horrendous.”

“While none of the devices exploded ... at the very least they were intended to strike fear and terror into the minds of their victims and to intimidate those victims, mostly prominent political figures, from exercising their freedom.” Rakoff noted that Sayoc, even if he proves to be a model prison, “will be about 75 years old before he can be released.”

“No one can pretend this is not, in real terms, substantial punishment; but in the Court’s view, it is no more, and no less, than [what] he deserves,” Rakoff said.

Sayoc, a 57-year-old Florida resident whose own lawyers called him “a Donald Trump super-fan,” pleaded guilty on March 21 to 65 criminal counts, which included using weapons of mass destruction and illegal mailing of explosives with intent to kill or injure. Prosecutors said Sayoc’s crimes amounts to a “domestic terrorist attack.”

Prosecutors had asked Rakoff to sentence the former exotic dancer and steroid abuser to life in prison for the mail bombing spree....

None of the home-made bombs exploded, and “would not have functioned as designed,” according to prosecutors. But they noted that Sayoc packed PVC pipes with explosive powder and glass shards, along with pool chemicals to “increase the chances of burning the skin of” his targets....

Sayoc’s lawyers had asked that he be sentenced to just 10 years in prison, the mandatory minimum for his crimes. In their own sentencing submission, defense lawyers wrote that, “a series of traumatic events pushed Cesar Sayoc further and further into the margins of society.”

Valuably, Judge Rakoff authored this nine-page sentencing opinion explaining why he found the sentencing recommendations of the prosecution and defense not quite right and why he settled on a 20-year prison term for these crimes.

August 5, 2019 in Booker in district courts, Celebrity sentencings, Purposes of Punishment and Sentencing | Permalink | Comments (4)

Wednesday, July 31, 2019

"Federal Criminal Risk Assessment"

The title of this post is the title of this new paper authored by Brandon Garrett recently posted to SSRN. Here is its abstract:

Risk assessments are a common feature of federal decisionmaking, including across a range of administrative agencies.  However, in federal criminal law, risk assessments have been only haltingly adopted.  Decisions regarding bail, sentences, and prison programming have largely been made based on official discretion.  Risk assessment instruments are currently used in federal courts pre-trial, post-conviction, and in federal prisons regarding security levels and reentry, with highly uneven results to date.  The adoption of the FIRST STEP Act, which has the ambition to transform the federal prison system through use of risk instruments, has the potential to introduce a more legitimate, transparent, and validated approach, using instruments developed publicly and, ideally, implemented consistently.

Questions remain regarding whether the risk and needs instrument adopted will then be successfully and consistently implemented to assign inmates to programs, whether there will be adequate resources for those programs, and what the effectiveness of those programs will be.  Prior efforts in the federal system, including concerns raised by reports and audits of federal risk assessment, as well as evidence from efforts in states and locally, suggest reason for caution and care as this new system is implemented. Important lessons can be learned from the successes and the failures of prior efforts to improve outcomes in the criminal system.

July 31, 2019 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Sunday, July 28, 2019

"The Agony & the Ecstasy of #MeToo: The Hidden Costs of Reliance on Carceral Politics"

The title of this post is the title of this notable new paper authored by Guy Padraic Hamilton-Smith now available via SSRN. Here is its abstract:

Many have considered the conversation sparked by #metoo as a necessary and overdue interrogation of not only the spectre of common sexual harms in American society, but also the inadequacy of traditional mechanisms of accountability.  Against this backdrop, smaller-scale flashpoints have erupted over perceived inadequacy of punishment, such as the successful campaign to recall California judge Aaron Persky from the bench over what many saw as leniency in the widely- publicized case of People v. Brock Turner.  This paper analyzes the complex relationship between #metoo and the carceral state.

In arguably the most punitive nation on the planet — particularly when considering the breadth and scope of public post-conviction registries — I argue that seeking to address broad and systemic failures of accountability by advocating for more severe punishment paradoxically undermines the larger goals of #metoo to the extent that those goals are concerned with effectively challenging systems that perpetuate sexual harms.  An approach that harmonizes efforts to prevent sexual harms and bring those who cause harm to account without endorsement of carceral politics is explored.

July 28, 2019 in Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (0)

Friday, July 26, 2019

"Retributivist Reform of Collateral Consequences"

The title of this post is the title of this notable article authored by Brian Murray just posted to SSRN.  Here is its abstract:

This Article applies retributivist principles to discussions about collateral consequences reform.  Retributivist ideas relating to agency and responsibility, proportionality, personal and communal restoration, and the obligations and duties of the state, as well as the broader community, suggest suspicion of an expansive collateral consequences regime.  A retributivist assessment, cognizant of realities within the criminal system, reveals that many are overly punitive and disruptive of social order.

Legislatures that prioritize retribution as a justification for and constraint on punishment should think clearly about whether existing collateral consequences result in disproportionate suffering and, if so, reconsider them.  This includes the outsourcing of punishment to private actors.  Committed retributivist decision-makers within the system, such as line prosecutors, should consider how to approach the imposition of collateral consequences when acting during various phases of a prosecution.  Finally, retributivist constraints can inform whether the maintenance of criminal records by the state is justified, and for how long, as well as the scope of second-chance remedies like expungement.  These limitations could allow for robust procedural protections for petitioners for relief, shifting the burden of persuasion to the state. In short, retributive principles can be a useful tool for reform, helping to restore to ex-offenders what they deserve.

July 26, 2019 in Collateral consequences, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Sunday, July 21, 2019

"Predictable Punishments"

The title of this post is the title of this new paper authored by Brian Galle and Murat Mungan now on SSRN.  Here is its abstract:

Economic analyses of both crime and regulation writ large suggest that the subjective cost or value of incentives is critical to their effectiveness.  But reliable information about subjective valuation is scarce, as those who are punished have little reason to report honestly.  Modern “big data” techniques promise to overcome this information shortfall, but perhaps at the cost of individual privacy and the autonomy that privacy’s shield provides.

This Article argues that regulators can and should instead rely on methods that remain accurate even in the face of limited information.  Building on a formal model we prove elsewhere, we show that variability in a defendant's subjective costs of punishment should be a key consideration in any incentive system, whether it be criminal law or otherwise. Our model suggests that this variability can be mitigated with some familiar and well-tested tools.  For instance, in some situations ex ante taxes on behavior that creates a risk of harm can be preferable to ex post punitive regimes, such as the criminal law, that target primarily harms that actually arise.

Because of what we show to be the centrality of variation in subjective costs, we also argue that long-standing approaches to criminal theory and practice should be reconsidered. For instance, economic theory strongly prefers fines over other forms of punishment. We argue that this claim is typically right — indeed, it is understated — when applied to firms. But fines can be the wrong choice for incentivizing most humans, while ex ante taxes are a promising alternative.  We also show that this same analysis counsels that, if prison is the most viable punishment available, it can be more efficient to make prisons safer and less alienating.

July 21, 2019 in Criminal Sentences Alternatives, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Thursday, July 18, 2019

"Measuring Algorithmic Fairness"

The title of this post is the title of this new paper now available via SSRN authored by Deborah Hellman.  With all the use of risk assessment tools throughout the criminal justice system, as with the risk-and-needs tool required by the FIRST STEP Act due out very soon, this discussion of "algorithmic fairness" cause my eye. Here is its abstract:

Algorithmic decision making is both increasingly common and increasingly controversial.  Critics worry that algorithmic tools are not transparent, accountable or fair.  Assessing the fairness of these tools has been especially fraught as it requires that we agree about what fairness is and what it entails. Unfortunately, we do not.  The technological literature is now littered with a multitude of measures, each purporting to assess fairness along some dimension.  Two types of measures stand out.  According to one, algorithmic fairness requires that the score an algorithm produces should be equally accurate for members of legally protected groups, blacks and whites for example.  According to the other, algorithmic fairness requires that the algorithm produces the same percentage of false positives or false negatives for each of the groups at issue.  Unfortunately, there is often no way to achieve parity in both these dimensions.  This fact has led to a pressing question.  Which type of measure should we prioritize and why?

This Article makes three contributions to the debate about how best to measure algorithmic fairness: one conceptual, one normative, and one legal.  Equal predictive accuracy ensures that a score means the same thing for each group at issue.  As such, it relates to what one ought to believe about a scored individual.  Because questions of fairness usually relate to action not belief, this measure is ill-suited as a measure of fairness.  This is the Article’s conceptual contribution.  Second, this Article argues that parity in the ratio of false positives to false negatives is a normatively significant measure.  While a lack of parity in this dimension is not constitutive of unfairness, this measure provides important reasons to suspect that unfairness exists.  This is the Article’s normative contribution.  Interestingly, improving the accuracy of algorithms overall will lessen this unfairness. Unfortunately, a common assumption that antidiscrimination law prohibits the use of racial and other protected classifications in all contexts is inhibiting those who design algorithms from making them as fair and accurate as possible. This Article’s third contribution is to show that the law poses less of a barrier than many assume. 

July 18, 2019 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (0)

Federal judge gives first-person account of FIRST STEP Act's impact through retroactive crack provision

The New York Times has this notable new first-person account of the FIRST STEP Act coming from a judge who was able to reduce a life sentence thanks to the Act's crack retroctivity provisions.  The piece is authored by Robin Rosenberg, and carries the headline "In ’99 He Was Sentenced to Life. Twenty Years Later, I Set Him Free." Here are excerpts:

In January 1999, Robert Clarence Potts III was sentenced to life in prison. He was 28, and had been convicted of drug and weapons charges. The federal judge sentencing him seemed to express some regret at the gravity of the penalty. But under the law at the time, Mr. Potts faced a mandatory sentence of life imprisonment without release because of the type of offenses and his two previous convictions for drug and other offenses.

“You are facing a very tough sentence here, and it is very regrettable that you are,” the judge, James C. Paine of the United States District Court of the Southern District of Florida, told him. The judge added that “we are governed by the law and the guidelines and we are going to have to go by those.” And the law and sentencing guidelines meant “a term of life imprisonment,” he explained.

To that, Mr. Potts responded, “Sir, there is not much I can say.”  But it was what he did afterward that ultimately made the difference.

On Friday, Mr. Potts, now 49, is scheduled to be released from prison after more than 20 years — a turn of events made possible by the First Step Act, passed by Congress and signed by President Trump last year.  Among other things, the law expanded early-release programs, modified sentencing laws and allowed defendants like Mr. Potts to seek a reduction in their sentence, a step toward correcting the country’s history of disproportionate sentences.

The decision whether to reduce his sentence fell to me when I was randomly assigned his case.  The twist was that I had been Judge Paine’s law clerk in 1989, 10 years before Mr. Potts was sent away.  Now I was a federal judge in the same courthouse where Judge Paine had served and where he had sentenced Mr. Potts two decades before....

Mr. Potts had served over 20 years in a high-security federal penitentiary when the First Step Act became law last December.  The First Step Act made the Fair Sentencing Act — signed by President Barack Obama in 2010 to reduce the disparity in sentencing for powder cocaine and crack cocaine offenses — applicable to past cases.  The First Step Act also allowed a defendant like Mr. Potts to seek a sentence reduction even when the original sentence was for life.  The law provides wide discretion to the court to determine whether to reduce a sentence and by how much.

At his sentence reduction hearing, Mr. Potts had much more to say than he did back in 1999.  Before me, he was remorseful, dignified and hopeful.  He was proud of all that he had accomplished in over two decades in prison — proud of the courses he took in personal growth, responsible thinking, legal research and software, proud of his participation in nearly every health, nutrition and fitness class available.  Perhaps he derived his greatest pride from conquering a debilitating addiction and maintaining his sobriety.  As his lawyer explained to me, sobriety is not a foregone conclusion in prison, where drugs are widely available....

The true marker of a person’s character is what he does when he thinks no one is watching.  Because Mr. Potts was sentenced to life, no one had really been looking at what he had been doing.  But his unwavering dedication to improve himself over the last two decades, despite his circumstances, convinced me that his hope in his own future isn’t misplaced.

After a long hearing, I concluded that 20 years was more than sufficient as punishment for his past — and serious — crimes, and ordered his release. To help his transition, he will spend six months in a residential re-entry center.  I believe Mr. Potts’s story is one of redemption through self-improvement.  His case speaks to the importance of criminal justice reforms such as the First Step and Fair Sentencing Acts. His story illuminates the human impact of such reforms and a person’s capacity for hope and redemption.

July 18, 2019 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, July 16, 2019

New Pew report spotlights state changes in community supervision and revocations

The folks from Pew have this notable new report fully titled "To Safely Cut Incarceration, States Rethink Responses to Supervision Violations: Evidence-based policies lead to higher rates of parole and probation success." Here is the document's "Overview":

Recent research from The Pew Charitable Trusts found that about 4.5 million people in the United States are on community supervision as of 2016.  Probation and parole provide a measure of accountability while allowing those who would otherwise have been incarcerated or have already served a term behind bars to meet their obligations to their families, communities, and victims.

People under supervision are expected to follow a set of rules, such as keeping appointments with probation or parole officers, maintaining employment, not using alcohol or other drugs, and paying required fees. Failure to follow the rules — referred to as technical violations—may result in revocation of the supervision and in some cases a term of incarceration.  A 2019 report by the Council of State Governments showed that technical violations account for almost 1 in 4 admissions to state prison and $2.8 billion in annual incarceration costs.

Such technical revocations are costly, and failure to comply with supervision conditions does not necessarily indicate that a person presents a public safety threat or will engage in new criminal activity.  Further, although studies have not demonstrated that incarcerating people for breaking the rules of supervision reduces recidivism, they have found that long periods of incarceration can make re-entry more difficult, causing people to lose their jobs, homes, and even custody of their children.

This brief examines policies that states implemented through the Justice Reinvestment Initiative (JRI) that have reduced technical revocations, highlights some of the results of those changes, and provides sample legislation for each policy.  JRI is a public-private partnership among Pew, the U.S. Department of Justice’s Bureau of Justice Assistance, state governments, and technical assistance providers; it seeks to improve public safety and control costs by prioritizing prison space for people sentenced for the most serious offenses and investing in evidence-based alternatives to incarceration and other programs shown to reduce recidivism.  These state efforts have not been without challenges, and more can be done to improve supervision outcomes.  Nevertheless, the examples provided show that states can take meaningful steps to reduce prison populations and protect public safety while strengthening systems of supervision and services in the community.

July 16, 2019 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Sunday, July 14, 2019

"Torture and Respect"

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

There are two well-worn arguments against a severe punishment like long-term incarceration: it is disproportionate to the offender’s wrongdoing and an inefficient use of state resources.  This Article considers a third response, one which penal reformers and theorists have radically neglected, even though it is recognized in the law: the punishment is degrading.  In considering penal degradation, this Article examines what judges and scholars have deemed the exemplar of degrading treatment — torture.  What is torture, and why is it wrong to torture people?  If we can answer this question, this Article maintains, then we can understand when and why certain punishments — like perhaps long-term incarceration — are impermissibly degrading, regardless of their proportionality or social utility otherwise.

This Article develops an original theory of torture.  It argues that torture is the intentional infliction of a suffusive panic and that its central wrongness is the extreme disrespect it demonstrates toward a victim’s capacity to realize value. Humans realize value diachronically, stitching moments together through time to construct a good life as a whole. Torture takes such a being, one with a past and a future, and via the infliction of a make it stop right now panic, converts her into a “shrilly squealing piglet at slaughter,” in Jean Améry’s words, restricting her awareness to a maximally terrible present.

The Article then considers what this theory of torture means for our understanding of degradation more generally.  It argues that punishment is impermissibly degrading, regardless of our other penal considerations, when it rejects an offender’s status as a human.  Punishment reaches this threshold by demonstrating that the offender’s life-building capacity — the very basis of his humanity — is completely absent or fundamentally worthless.  To so thoroughly deny someone’s value, even someone who has committed a heinous crime, violates the liberal commitment to human inviolability.  The Article closes by suggesting that long-term incarceration rejects an offender’s status as a human, and is therefore on a par with penal torture, given that removing someone from free society for decades makes it exceedingly difficult for him to construct a good life as a whole.

July 14, 2019 in Prisons and prisoners, Purposes of Punishment and Sentencing | Permalink | Comments (0)

"Some Doubts About 'Democratizing' Criminal Justice"

The title of this post is the title of this new paper authored by John Rappaport and recently posted to SSRN. Here is its abstract:

The American criminal justice system’s ills are by now so familiar as scarcely to bear repeating: unprecedented levels of incarceration, doled out disproportionately across racial groups, and police that seem to antagonize and hurt the now-distrustful communities they are tasked to serve and protect.  Systemic social ailments like these seldom permit straightforward diagnoses, let alone simple cures.  In this case, however, a large, diverse, and influential group of experts — the legal academy’s “democratizers” — all identify the same disease: the retreat of local democratic control in favor of a bureaucratic “machinery” disconnected from public values and the people themselves.  Neighborhood juries, for example, internalize the costs of punishing their own; neighborhood police, “of” and answerable to the community, think twice before drawing their weapons or stopping a local boy on a hunch. The experts and detached professionals who populate our dominant bureaucratic institutions, in contrast, are motivated by different, less salubrious, incentives.  Across the gamut of criminal justice decisionmaking, the democratizers maintain, the influence of the local laity is a moderating, equalizing, and ultimately legitimating one.  A generous dose of participatory democracy won’t solve all our problems, but it’s our best shot to get the criminal justice system back on its feet.

This Article’s warning is plain: don’t take the medicine.  “Democracy” and “community” wield undeniable rhetorical appeal but will not really fix what ails us — and may just make it worse.  The democratization movement, the Article argues, rests on conceptually problematic and empirically dubious premises about the makeup, preferences, and independence of local “communities.”  It relies on the proudly counterintuitive claim that laypeople are largely lenient and egalitarian, contrary to a wealth of social scientific evidence.  And ultimately, democratization’s dual commitments are on a collision course.  The democratizers simultaneously devote themselves to particular ends — amelioration of the biased and outsized carceral state — and to a particular means — participatory democracy.  What happens if, as this Article predicts, the means do not produce the ends? Which commitment prevails?  Worse yet, venerating lay opinion distracts from alternative visions of “democratic” criminal justice that more credibly tackle the critical question of how best to blend public accountability with evidence and expertise.

July 14, 2019 in Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Thursday, July 11, 2019

"Against the Received Wisdom: Why Should the Criminal Justice System Give Kids a Break?"

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

Professor Gideon Yaffe’s recent, intricately argued book, The Age of Culpability: Children and the Nature of Criminal Responsibility, argues against the nearly uniform position in both law and scholarship that the criminal justice system should give juveniles a break not because on average they have different capacities relevant to responsibility than adults, but because juveniles have little say about the criminal law, primarily because they do not have a vote.  For Professor Yaffe, age has political rather than behavioral significance. The book has many excellent general analyses about responsibility, but all are in aid of the central thesis about juveniles, which is the central focus of this essay review.

After addressing a few preliminary issues, the essay discusses Professor Yaffe’s negative argument against the validity of the behavioral difference rationale for giving juveniles a break.  If the negative case fails, which the essay argues it does, then the only issue is whether the book’s alternative is desirable.  Again, the essay argues that it is not, and concludes by offering three positive arguments for the traditional rationale: 1) coherence and simplicity; 2) a benignly definitional argument that survives the negative argument and supports giving juveniles a break in the exceedingly unlikely event that the empirical assumptions of the traditional rationale are proven incorrect; and 3) a proposal for individualization of the culpability assessments of juveniles so that the criminal justice system blames and punishes them proportionately to their culpability.

July 11, 2019 in Offender Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (1)

Monday, July 08, 2019

Two new open access articles from FSR issue on "The Tyranny of the Trial Penalty"

In this post last month, I highlighted the publication of the latest extraordinary (double) issue of the Federal Sentencing Reporter titled "The Tyranny of the Trial Penalty: The Consensus that Coercive Plea Practices Must End."  As mentioned before, this FSR issue includes 16(!) original pieces on various aspects of "The Trial Penalty," and it is fully available on-line at this link

Though a full subscription to FSR is needed for full on-line access to all FSR content, the University of California Press has graciously agreed to make various articles from this special issue available to all on-line for a limited period.  Valuable, the issue's terrific introduction authored by Norman Reimer, executive director of NACDL, and his colleague Martín Sabelli, NACDL's second vice president, is to remain freely available for an extended period of time.  And this week, these two additional pieces are now accessible to all (with first paragraphs quoted here):

Two empirical facts underlie ongoing policy debates over plea-trial differences in federal punishment: defendants who are convicted at trial receive significantly harsher sentences, and the overwhelming majority of federal defendants forego their constitutional right to jury trial and enter into plea agreements.  A passel of studies finds large plea-trial differences in federal sentencing.  Across jurisdictions, offense types, and time periods, research convincingly demonstrates that defendants convicted at trial receive more severe punishments than similar defendants who plead guilty.  This “trial tax” or “plea discount” is among the most robust findings in the empirical sentencing literature (Johnson 2019).  At the same time, guilty plea rates in both state and federal courts have ballooned.  In federal court, more than 97 percent of convicted defendants plead guilty (Motivans 2019), lending credence to Justice Anthony Kennedy’s observation that “plea bargaining is not some adjunct to the criminal justice system; it is the criminal justice system” (Missouri v. Frye, 132 S. Ct. 1399, 1407 (2012)).

Weaponizing Justice: Mandatory Minimums, the Trial Penalty, and the Purposes of Punishment by Mary Price

The trial penalty is one of the most lethal tools in the prosecutor’s kit.  With it, the government coerces defendants to plead guilty and punishes those who don’t. It transforms what should be a defendant’s considered and informed decision about whether to exercise the constitutional right to be judged by a jury of one’s peers in open court into a backroom roll of the dice.  It is the criminal justice equivalent of a shakedown — more extortion than orderly proceeding.

Prior related posts:

UPDATE: The National Association of Criminal Defense Lawyers has this new news release about the FSR issue, which includes these quotes from the Guest Editors who helped make it happen:

The articles included in this special issue underscore one hopeful reality: the breadth of concern with the trial penalty’s central role in perverting the U.S. system of justice reflects unprecedented consensus,” explain Editors Reimer and Sabelli in their “Editors’ Observations” introduction.  “Critics of the decline of the jury trial and the institutional coercion that is the trial penalty in action span the ideological perspective.  This is not the system of justice that the architects of this democracy envisioned, nor is it the system that people deserve, especially as the nation has evolved.  The country may still have a long way to go to purge racism and all forms of irrational disparity from its criminal justice system. But it has come far enough that it is long past time to tolerate a system that extracts years of a person’s freedom as the price to access fundamental rights. NACDL is determined to promote study and seek reform on the federal level and throughout the various states to minimize the tyranny of the trial penalty. This edition of the Federal Sentencing Reporter is an important step in that process.”

July 8, 2019 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

A critical perspective on the Lone Star State's experiences with criminal justice reform

A few months ago, as noted in this post, Marie Gottschalk had published a critical review of the achievements of the federal FIRST STEP Act.  Now, in this notable new commentary in The Baffler about the Texas experience with criminal justice reform, she provides a critical perspective on how little has changed in a big state that seems to get a lot of reform credit.  The extended piece is headlined "The Prisoner Dilemma: Texas fails to confront mass incarceration," and here are some excerpts:

The origin story of the latter-day turnaround in Texas’s criminal justice system dates back to 2007, when legislators decided against spending an estimated $2 billion on new prison construction to accommodate projections that the state would need an additional seventeen thousand prison beds by 2012.  Instead, they enacted some modest changes in probation and parole to redirect people to community supervision; they also restored some funding for substance abuse and mental health treatment.  The attempt to slow down prison construction was, in fact, a big change from the post-Ruiz era, when the state attempted to build its way out of the overcrowding problem.  And yet, even though Texas was required to face up to certain realities — first by the Ruiz case and later by budget constraints — the Texas penal system, after all these years, has not really changed its stripes.

For all the hype, Texas remains “more or less the epicenter of mass incarceration on the planet,” according to Scott Henson, author of Grits for Breakfast, the indispensable blog on criminal justice and law enforcement in Texas.  Other states have far surpassed Texas in reducing the size of their incarcerated populations and in providing safer and more humane lock-ups that are not such blatant affronts to the Eighth Amendment’s ban on cruel and unusual punishment.

Texas today incarcerates nearly one-quarter of a million people in its jails and prisons — more than the total number of prisoners in Germany, France, and the United Kingdom combined.  If Texas were a country, its incarceration rate would be seventh in the world, surpassed only by Oklahoma and five other Southern states.  Texas still operates some of the meanest and leanest prisons and jails in the country. Two meals a day on weekends during budget shortfalls.  Cellblocks without air-conditioning, fans, or even enough water to drink in triple-digit heat. Understaffed, overwhelmed, and unsafe lock-ups in isolated rural areas.

All the applause that Texas received for the prisons it did not build and the handful of prisons it closed has overshadowed the fact that the Lone Star State continues to be one of the most punitive in the country.  If you add the number of people in prison and jails to those on probation, parole, or some other form of community supervision in Texas, that quarter of a million number grows to about seven hundred thousand. This amounts to about one out of every twenty-five adults in the state.  That’s enough to fill a city the size of El Paso.

Between 2007 and 2018, the total number of people held in state prisons and county jails in Texas did fall somewhat — by about 6 percent. But while the number of incarcerated men in Texas prisons and jails has inched downward, the number of incarcerated women has continued to grow.  The state’s female incarceration rate ranks fifteenth nationwide.

Texas has yet to enact any landmark criminal justice reform legislation that would truly scale back the number of people in prisons and jails.  Meanwhile, it has created hundreds of new crimes and dozens of enhanced penalties. Unlike many other states, Texas has yet to reduce the penalties for even low-level drug crimes.  Last year, the number of new felony cases filed in Texas reached a near all-time high, “driven primarily by an increase in drug possession cases,” according to the annual report of the Texas Judiciary.

July 8, 2019 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (0)

Summer reading (with a Fall cover date) from the American Journal of Criminal Law

Over the holiday week, I noticed that American Criminal Law Review already has published its Fall 2019 issue, and that this issue includes a number of articles that sentencing fans may want to add to their summer reading list: 

The Biased Algorithm: Evidence of Disparate Impact on Hispanics by Melissa Hamilton

Is Mass-Incarceration Inevitable? by Andrew Leipold

Defining the Proper Role of “Offender Characteristics in Sentencing Decisions: A Critical Race Theory Perspective by Lisa Saccomano

Cruel, Unusual, and Unconstitutional: An Originalist Argument for Ending Long-Term Solitary Confinement by Merin Cherian

Pandora’s Algorithmic Black Box: The Challenges of Using Algorithmic Risk Assessment in Sentencing by Leah Wisser

July 8, 2019 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Recommended reading, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Friday, July 05, 2019

Emphasizing why community supervision realities must be focal point for criminal justice reforms

As noted in this post, last month the the Council of State Governments Justice Center produced this dynamic report spotlighting that a large percentage of all state prison admissions "are due to violations of probation or parole for new offenses or technical violations" and that "technical violations, such as missing appointments with supervision officers or failing drug tests, account"for almost a quarter of all state prison admissions.  Fittingly, I have recently seen two commentaries highlighting this CSG report to stress the importance of criminal justice reform efforts giving attention to this piece of the system.  Here are links to these pieces and a snippet therefrom:

From The Hill, "Want to cut the prison population?  Start by tackling probation reform" by Nila Bala:

Sadly, imprisoning technical violators often drives them even deeper into the criminal justice system. With a prison sentence, individuals can lose their jobs, their homes, and their children, which are all of the important social supports they had formed in their community, making them more likely to return to crime.  Imprisoning individuals for technical violations is also costing taxpayers to the tune of $2.8 billion in incarceration costs.

We should save prison beds for those who have committed serious and violent offenses instead of for those who have broken curfew or failed to pay a probation fee. Instead of imprisoning technical violators, we should hold them accountable in the community in ways that do not harm public safety.  By eliminating prison terms for technical violations, or at least by capping the length of their prison stays, states can work to reduce their prison numbers in a significant way.  Along with the reform of supervision conditions, we can work to limit probation to those who really need it and to divert the many lower risk individuals away from the system altogether.

If there is one foundational value that we can adopt in the criminal justice system to change its ethos, it is human dignity. It should not fall by the wayside when people are released from prison.  It is even more important as we welcome individuals back into the social fabric of our communities. The Council of State Governments report guides states in asking how they can limit the supervision to prison pipeline.  With this data, states hold the potential to reform their supervision practices in ways that improve public safety, yield valuable cost savings, and respect the human dignity of all.

From USA Today, "As candidates search for criminal justice talking points, parole and probation reform should top list" by Megan Quattlebaum and Juliene James:

Instead of moving people away from prison, the use of parole and probation is a prime contributor to still stubbornly high incarceration rates. This undermines people’s ability to reintegrate into a free society after conviction.

The nation can and should focus efforts and resources on reducing new criminal behavior. By keeping people out of prison, we can better ensure that they keep their jobs, stay connected to their families and have a fair chance at contributing to society.

The nation's probation and parole disproportionately burdens poor and minority communities. Black Americans account for more than 30% of the people on probation and parole, despite being only 13% of the U.S. population. How can we expect people to live successful lives when they’re under the constant scrutiny of unforgiving criminal justice supervision?

Red and blue states alike have prison systems that are straining under the weight of incarcerating significant numbers of people who have violated their supervision.

State lawmakers need to start looking at their own statistics and asking whether probation and parole are serving their intended goals. What types of new offenses are responsible for supervision revocations? What practices and programs can discourage people under supervision from committing new crimes? What is a better way to handle technical violations?

A few prior recent related posts:

July 5, 2019 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

Tuesday, June 25, 2019

"The Opposite of Punishment: Imagining a Path to Public Redemption"

The title of this post is the title of this new short paper authored by Paul Robinson and Muhammad Sarahne. Here is its abstract:

The criminal justice system traditionally performs its public functions — condemning prohibited conduct, shaming and stigmatizing violators, promoting societal norms — through the use of negative examples: convicting and punishing violators.  One could imagine, however, that the same public functions could also be performed through the use of positive examples: publicly acknowledging and celebrating offenders who have chosen a path of atonement through confession, apology, making amends, acquiescing in just punishment, and promising future law abidingness.  An offender who takes this path arguably deserves official public recognition, an update of all records and databases to record the public redemption, and an exemption from all collateral consequences of conviction.

This essay explores how and why such a system of public redemption might be constructed, the benefits it might provide to offenders, victims, and society, and the political complications that creation of such a system might encounter.

June 25, 2019 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (4)

Wednesday, June 19, 2019

"Testing Periods and Outcome Determination in Criminal Cases"

The title of this post is the title of this important new article authored by Fiona Doherty and now available via SSRN. Here is its abstract:

This Article introduces the concept of “Testing Periods” to explain how U.S. courts sort criminal defendants for incarceratory and non-incarceratory results. A Testing Period is a time period during which a criminal defendant agrees to abide by a set of prospective rules (such as avoiding “dirty urines” and remaining “clean” from drugs and alcohol), typically, but not always, as a function of plea bargaining.  Prosecutors and judges set the rules, and defendants must demonstrate that they can follow the rules to pass the test and successfully avoid prison.  Juries play no role in the system, and due process requirements diverge sharply from traditional norms.

The outcomes of most criminal cases are now determined through Testing Periods, which go by varied names like probation, problem-solving courts, suspended sentences, conditional plea agreements, and deferred adjudication.  The pervasiveness of Testing Periods has changed the orientation of outcome determination in criminal cases away from a retrospective analysis to a prospective one: Outcomes no longer depend on a backward-looking examination of the facts of a criminal charge, but instead on whether a defendant can pass a forward-looking test.  The power to create and administer Testing Periods has become the power to determine who goes to prison and for what reason.  The Article concludes that the widespread use of Testing Periods has recreated dynamics from a much older method of resolving criminal cases: the testing models used in the medieval ordeal system to separate “clean” defendants from “dirty” ones, and the “worthy” from the “unworthy.” 

June 19, 2019 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Tuesday, June 18, 2019

"Abolishing the death penalty requires morality"

The title of this post is the headline of this new commentary authored by Stephen Cooper, which is a response to a recent commentary by Austin Sarat (blogged here).  Here are excerpts:

In “How to Convince Americans to Abolish the Death Penalty,” Amherst College Professor Austin Sarat asserts “important lessons about how abolitionists can be successful around the country” can be learned from New Hampshire – which just last month became the twenty-first state to abolish capital punishment — including: “The moral argument doesn’t work.”...

Sarat’s regretful and regressive capitulation to the fallacious dogma of retribution is, therefore, in my opinion, as disturbing as it is disappointing.

In his book “The Ethics of Punishment,” Sir Walter Moberly sagely observed about retribution that “[t]he executioner pays the murderer the compliment of imitation,” and, more keenly: “Much demand for retribution certainly has a shady origin.  It springs from the crude animal impulse of the individual or group to retaliate, when hurt, by hurting the hurter. In itself such resentment is neither wise nor good and, in its extreme forms, it is generally condemned as vindictive.”...

The constitutional prohibition against cruel and unusual punishment bears no asterisk for crimes committed by “society’s most despised.”  Abolitionists should continue to proudly and affirmatively demand the Eighth Amendment’s guarantee of dignity for everyone, while continuing to make reasoned morality-and-dignity-based arguments to end the death penalty — when it makes sense to — notwithstanding whether or not this strategy was employed during the recent abolitionist success in New Hampshire.

Demanding dignity for society’s most despised is the lifeblood of our weakened, chronically underperforming Eighth Amendment.  And it is still at the heart of what it means to be an abolitionist.

Prior related posts:

June 18, 2019 in Death Penalty Reforms, Purposes of Punishment and Sentencing | Permalink | Comments (15)

Thursday, June 13, 2019

"Is ‘Abolish Prisons’ the Next Frontier in Criminal Justice?"

The question in the title of this post is the headline of this effective Bloomberg commentary authored by Bill Keller.  Here are excerpts:

Five years ago, when the activist and cable TV host Van Jones launched the #cut50 campaign to reduce U.S. prison populations by half, many mainstream justice reform watchers rolled their eyes at what seemed to be a reckless overreach.... Now the campaign has attracted an A-list of celebrities, philanthropists and candidates pursuing the Democratic presidential nomination. These days, when Jones gets pilloried, it’s as likely to be for being too compromising: Why stop short of #cut100?

People who follow criminal justice policy for a living say the fastest growing subset of the reform movement consists of abolitionists who say a system that is inherently racist and based on retribution should be pulled up by the roots. Not just prisons and jails, but most of the institutions of law enforcement and criminal justice.

“Abolition has become a rallying cry for the progressive wing of the justice reform movement,” Jeremy Travis told me. “NO NEW JAILS. NO MORE MONEY FOR POLICE. ABOLISH ICE. ABOLISH PRISONS.” Travis, who oversees criminal justice issues for the Arnold Ventures philanthropy, has spent a career in the system, most recently as president of the John Jay College of Criminal Justice in New York. (Disclosure: Laura and John Arnold, the founders of Arnold Ventures, are donors to the Marshall Project, my former employer.) “There is lots of energy behind this reframing of the ‘reform’ agenda,” Travis said.

Prison abolition has decades of antecedents, led by once-fringe figures like Angela Davis, the 1960s communist firebrand, and Ruth Wilson Gilmore, the subject in April of a sympathetic profile in the New York Times Magazine. More recently abolition has been embraced by younger Americans who grew up after violent crime peaked in the early 1990s, and has helped kindle some fundamental rethinking in the mainstream.

Like other radical ideas — Medicare for All, the Green New Deal — abolition means different things to different people. Most of those who rally to the cause do not advocate a world where no one answers your 911 call and serial killers are set loose. Abolition is an ideal — like, say, “repeal and replace.” The real debate is what should replace the current institutions.

“There is always going to be some role for prisons, but maybe 10 percent of what we do now,” said Martin Horn, a former New York State parole director, now a professor at John Jay. “I think we need police. We may not need as many as we now have, and we want to use them differently.”

Abolitionists generally start the conversation with two immense objectives. The first is devolving responsibility for public safety to local communities. (“Civilianizing safety,” some experts call it.) One reason New York City has reduced its crime rate while simultaneously slashing arrests, incarceration and law-enforcement overreach is that the city has a nonprofit network on the ground, some of it subsidized by the city, to combat violence and to help the formerly incarcerated safely reenter society.

Abolitionists’ other aim is to redistribute government spending from police and prisons to narrowing the underlying, crime-breeding inequalities of wealth and opportunity. They would instead invest in housing, education, jobs and health — a goal that seems remote in the current political environment.

What is new, says Elizabeth Glazer, director of New York City’s criminal justice office, is that many of the ideas that animate the abolitionists “are now finding their way into established criminal justice structures” — not just scholars and activists but also prosecutors questioning what crimes should be prosecuted and judges seeking out-of-court remedies....

To reformists who work in or with the system, the abolitionists can be exasperating — a case of the ideal being the enemy of the good. DeAnna Hoskins, president of JustLeadershipUSA, which mobilizes former prisoners to press for reform, points to the campaign that persuaded New York to close the jail complex on Rikers Island. The plan depends on building smaller, more humane jails in four boroughs to house a much-reduced population of prisoners. Along with the inevitable resistance of prospective new neighbors, the city now faces vocal opposition from abolitionists who object to any new jails on principle. “That’s just not realistic,” Hoskins said. “We’re not going to close Rikers on Monday and not have any type of detainment.” She added, “When we talk about abolishing prisons and abolishing law enforcement, it’s actually reducing the power and the reach of those entities.”

One of the liveliest abolition debates concerns parole and probation, which get less attention than incarceration but regulate the lives of 4.5 million Americans, twice as many as are confined in prisons and jails. Because a parolee can be returned to prison for a technical infraction such as a missed appointment or a trace of drugs in a urine sample, the parole-to-prison pipeline is a major feeder of mass incarceration....

Although polling is scarce, it’s a fair bet that “abolition” is not a voter magnet. The electorate may want the system to be less cruel and more rehabilitative, but voters also want a professional answering that 911 call when their kid gets shot — and not a member of neighborhood watch. The bipartisan coalition that has found common ground on criminal justice would be severely strained by such a lurch to the left. The conservative attack ads write themselves.

But in recent years, with crime near historic lows, the iniquities and unintended consequences of American punishment have so captured public concern that even President Donald Trump coughs up an occasional platitude about “giving our fellow citizens a chance at redemption.”

There is a place for higher aspirations, if only to keep moving the middle. Closing Rikers was a radical idea, until it wasn’t. The #cut50 campaign was mocked as unrealistic until people realized that it was essentially restoring incarceration to 1980s levels.  “I don’t think that in my lifetime we’ll ever abolish prisons, but it’s a really important question, why we put people in prisons,” said Travis, adding that the abolition debate is “a healthy tension that is really challenging the pace of reform and the status quo.”

A few prior related posts:

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

Wednesday, June 12, 2019

Federal district judge rejects feds request for significant prison term in first sentencing of college bribery scandal

As reported in this NBC News piece about the first sentencing in a high-profile federal criminal matter, "Stanford University's former sailing coach avoided significant prison time and was sentenced to just one day behind bars on Wednesday for his role in a massive college admissions scandal."  Here is more:

John Vandemoer was the first person to be sentenced in the sweeping corruption scandal that exposed the sophisticated network of college admissions ringleader William Rick Singer, who helped children of well-heeled clients cheat their way into elite universities.

U.S. District Court Judge Rya W. Zobel sided with defense lawyers who said their client should not get more than the one day, which the judge dismissed as time served. The government had asked the judge to sentence Vandemoer to 13 months in prison.

Before Wednesday, Vandemoer had already pleaded guilty to one count of racketeering conspiracy for accepting $770,000 in bribes in funds that all went into the school's sailing program. The money did not directly line Vandemoer's pockets, the judge and lawyers on both sides agreed. "From what I know about the other cases, there is an agreement that Vandemoer is probably the least culpable of all the defendants in all of these cases," Zobel said. "All the money he got went directly to the sailing program."

In court on Wednesday, Vandemoer's voice choked with emotion as apologized for his actions. "I want to be seen as someone who takes responsibility for mistakes," he said. "I want to tell you how I intend to live from this point forward. I will never again lose sight of my values."...

Vandemoer received three separate payments of $500,000, $110,000 and $160,000 between fall 2016 and October 2018 on behalf of the Stanford sailing program to falsely represent that three clients of Singer's were elite sailors — and thus deserving of special admission to the private school, according to court documents....

Assistant U.S. Attorney Eric Rosen pleaded with Judge Zobel to send Vandemoer to prison and send a message about the case. "The sentence that you impose will set the tone moving forward," Rosen said. The prosecutor added: "This case goes far beyond John Vandemoer. The damage on Stanford goes much further. The actions undermine the confidence in the college admissions process."

The defense asked for leniency, arguing that the money Vandemoer received didn't go into his pocket, but instead went to a fund that supported Stanford's sailing program. "It cannot be overstated: all parties agree that Mr. Vandemoer did not personally profit from the scheme," defense lawyer Robert Fisher wrote in his sentencing memo to the court. "Mr. Singer sent Mr. Vandemoer money, and he consistently turned that money over to Stanford."...

Zobel also sentenced Vandemoer to two years of supervised release and six months of home confinement. The former coach was also fined $10,000. "I am aware that these are serious offenses," Zobel said. "I find it hard in this case that Vandemoer should go to jail for more than a year."

Of the three students whose parents tried to bribe their way into Stanford, none them actually benefited from Singer and Vandemoer's scheme.  The first one's fake sailing application came too late in the recruiting season and "the student was later admitted to Stanford through the regular application process," according to prosecutors.  The next two opted to go to Brown University and Vanderbilt University, despite Vandemoer's help.

Vandemoer was fired by Stanford on March 12, hours after federal prosecutors unsealed indictments.  "Although Mr. Vandemoer's conduct resulted in donations to the Stanford sailing team, Stanford views those funds as tainted," according to a victim impact statement written to Judge Zobel by Stanford's general counsel, Debra Zumwalt. "Stanford takes no position regarding any specific sentence that this Court may impose."

Because Vandemoer does not pose any real threat to public safety, and because he has already suffered (and will continue to suffer) an array of formal and informal collateral consequences, this sentence certainly strikes me as "sufficient, but not greater than necessary, to comply with the purposes set forth" in federal sentencing law.  I suppose I am not surprised that the feds wanted a significant prison term in this first of many related sentencings, but the recommendation here of 13 months in prison is a reminder that the feds seem to think that just about every convicted defendant ought to be sent to prison for some significant period.

June 12, 2019 in Federal Sentencing Guidelines, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (2)

Wednesday, June 05, 2019

"IQ, Culpability, and the Criminal Law’s Gray Area: Why the Rationale for Reducing the Culpability of Juveniles and Intellectually Disabled Adults Should Apply to Low-IQ Adults"

The title of this post is the title of this new article available via SSRN authored by Adam Lamparello.  Here is its abstract:

For too long, the criminal law has only provided legal protections for defendants who exist on the margins, namely, those who suffer from mental retardation, insanity, or are too young to appreciate the consequences of criminal conduct.  In so doing, the criminal law has failed to address the gray area in which most defendants reside, and for which all defendants lack sufficient legal protections.  For example, at the guilt/innocence phase of a criminal trial, the legal system offers little, if any protections, for defendants afflicted with mental illnesses, personality disorders, neurological impairments, and borderline intellectual functioning.  This is fundamentally unjust, contrary to relevant empirical evidence regarding the effects of cognitive, psychiatric, and psychological disorders on culpability, and results in profoundly unjust sentences that, in many cases, are entirely disproportionate to a defendant’s culpability.  As such, the time has arrived for the courts and legislators to recognize that defendants need not be intellectually disabled, insane, or under the age of eighteen to trigger legal and constitutional protections at the guilt/innocence phase that account for a defendant’s reduced or, even, zero culpability in certain cases.

June 5, 2019 in Offender Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (2)

Spotlighting the "modern-day gulags" that hold sex offenders indefinitely in "civil commitment"

A helpful reader made sure I did not miss this new extended Washington Spectator piece headlined "Modern-Day Gulags In the Golden State."  I recommend the full piece, which gets started this way:  

Back in 1997, the Supreme Court ruled that the practice known as civil commitment was legal.  This meant that 20 states — which had passed laws permitting the ongoing incarceration of sex offenders — could continue to keep the men confined even after they completed their prison terms.  (See “Sex Crimes and Criminal Justice,” from the May 2018 issue of The Washington Spectator, available here.)

All it took (and still takes) is for two psychologists to claim the men might commit a new crime and a judge to say their cases can move forward.  They are then labeled sexually violent predators (SVPs) and reincarcerated in prisonlike facilities until new trials are held — supposedly to determine if they will be civilly committed or released.  The result? Some men have been waiting for their day in court for 15 to 20 years. In the meantime, many have died.

No matter that the men already served their prison time.  Or that psychologists, psychiatrists and lawyers I interviewed insist that very few should be confined — that instead, the vast majority, many of whom are elderly or ill, should be let out.

Eric Janus, former president and dean of Mitchell Hamline Law School in St. Paul, Minn., says that continuing to incarcerate the men to comfort fearful constituents doesn’t make the public safer.  The bottom line?  “I’ve never seen numbers that show there are fewer sex offenses or re-offenses in the 20 states that have the SVP laws than in the other 30 states that don’t,” Janus says.

Then why are roughly 2,500 men still stashed away across the country?  Locking up sex offenders is always good politics, but it is also extraordinarily profitable.  And since California has the biggest budget and locks up the biggest number — three times the next three states’ combined — the Golden State offers the biggest boondoggle to explore.

To document a system awash in double-talk and dollars, I interviewed 45 lawyers, psychologists, psychiatric technicians, rehabilitation therapists, nurses, journalists, prison reform advocates and civilly committed men over eight months. Nearly all feared retaliation and asked not to be named.

As the first paragraph above indicates, this is the second piece in a series, and folks should be sure to also check out this first piece "Sex Crimes and Criminal Justice."

June 5, 2019 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (1)

Tuesday, June 04, 2019

Latest (double) issue of FSR covers "The Tyranny of the Trial Penalty": An introduction

4-5.cover-sourceI am extraordinarily excited to be able to report the exciting news that the latest extraordinary issue of the Federal Sentencing Reporter is now fully available on-line at this link.  The cover page from the Issue, which lists the 16(!) original pieces on various aspects of "The Trial Penalty," can be accessed here.

This issue of FSR emerges from the publication of a great report last year by the National Association of Criminal Defense Lawyers (NACDL) titled "The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It" (blogged here).  Folks at FSR contacted the folks at NACDL to explore the idea of developing a set of new commentaries using "The Trial Penalty" report as a springboard.

Wonderfully, Norman Reimer, executive director of NACDL, working with his colleague Martín Sabelli, NACDL's second vice president, worked tirelessly to solicit an outstanding array of original articles for this issue.  They were so productive, the project became a special FSR double issue so that a lengthy reprint of the "The Trial Penalty" report could appear together with all the terrific solicited commentaries addressing the importance of criminal trials and their disappearance from historical, practical, empirical, and international perspectives.

As the title of this post hints, I think this new FSR double issue merits a series of posts to highlight all of its terrific contents.  So here I will start by recommending the issue's terrific introduction authored by Norman Reimer and Martín Sabelli, which is fully titled "The Tyranny of the Trial Penalty: The Consensus that Coercive Plea Practices Must End."  Here is its opening paragraphs:

Every day, in virtually every criminal court throughout the nation, people plead guilty solely as a consequence of a prosecutor’s threat that they will receive an exponentially greater post-trial sentence compared to the pre-trial offer.  The process is simple and the logic inexorable: the prosecutor conveys a settlement offer to the defense attorney–very often at the outset of the case before the defense has investigated or received discovery–threatening a post-trial sentence much greater than the pre-trial offer.  The defense attorney–often before having had an opportunity to establish a relationship with the client–conveys that offer to her client who must choose between the opportunity and right to defend and the risk of adding years to the sentence if not decades after trial.  That differential is known as the trial penalty, and this scene unfolds routinely in courtrooms across the country as if the Framers had intended this legalized coercion to be the fulcrum of the criminal justice system.

The Framers did not so intend. The Framers, surprisingly for a modern reader, considered jury trials to be every bit as important as the right to cast votes for our representatives. In fact, John Adams declared that ‘‘[r]epresentative government and trial by jury are the heart and lungs of liberty. Without them we have no other fortification against being ridden like horses, fleeced like sheep, worked like cattle, and fed and clothed like swine and hounds.’’  President Adams’ colorful language reflects the strength of his view — a view shared by his contemporaries and the Framers — that the right to trial by jury protects the liberties of all individuals, not just the accused.  The Framers imagined a process in which the accused, assisted by counsel, evaluated the charges, received the evidence, and elected to exercise or not exercise the right to compel the government to prove guilt beyond a reasonable doubt.

June 4, 2019 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Who Sentences | Permalink | Comments (0)

"Reconsidering The 'Violent Offender'"

In this post from last fall, I noted the new Square One Project working to "reimagine justice" and conducting executive sessions and roundtables on the future of justice policy.  In that post, I noted some early draft of interesting papers from the project (which linked here in final form), and I just recently saw a new paper with the title that serves as the title of this post.  This new paper is authored by James Austin, Vincent Schiraldi, Bruce Western and Anamika Dwivedi, and here is part of its starting text:

People convicted of violent crimes have always been treated harshly by the criminal justice system, but in the four decades of rising incarceration rates from the early 1970s, punishment of the violent offender intensified disproportionately. Under President Bill Clinton, bipartisan consensus cemented the 1994 federal crime bill, enacting stricter sentencing laws for violent offenses at the federal level and incentivizing the same in the states.

Two decades later, even as President Barack Obama called for a reexamination of U.S. sentencing laws in 2015, he noted, “there are people who need to be in prison, and I don’t have tolerance for violent criminals” (C-SPAN 2015).  That same year, a Washington Times opinion piece by Newt Gingrich described criminal justice reform as a “rare area of bipartisan agreement in an otherwise sharply divided Congress,” but added, “we all agree that violent, dangerous criminals should be in prison, and the cost of incarcerating them is money well spent” (Gingrich and Nolan 2015).  Following suit, in 2017, Senator Kamala Harris, a self-identified “progressive” prosecutor stated that “we must maintain a relentless focus on reducing violence and aggressively prosecuting violent criminals” (Marcetic 2017).

Demonizing people as violent has perpetuated policies rooted in fear rather than fact. In this paper, we break from the tradition of punitiveness toward people convicted of violent offenses and argue that the violent offender label breaches the principle of parsimony, distorts proportionality, and fails as a predictive tool for future violent behavior. The label disproportionately affects people of color — black and Hispanic people comprise larger shares of people incarcerated for violent offenses in state prisons than white people (Bronson and Carson 2019).  In short, the violent offender label offers little to criminal justice policy.  Instead, justice policy should focus on those who actually commit violence, mitigate responses based on the experience of violent victimization, and discount the violent offender label as predictive of future violence.

Convincing policymakers and the public to change the approach to people charged with or convicted of violent offenses will require active education around the truths of violent offending alongside a significant cultural change. Affirming well-established criminal justice principles of parsimony and proportionality should take priority over a politics of fear.

We begin by detailing the social context and life histories that surround violent offending, and argue the case for parsimonious use of punishment.  While more serious and violent offenses may merit a proportionally greater response, the principle of parsimony reminds us that the punishment for violent offending should be the least coercive response necessary to achieve justice (Travis, Western, and Redburn 2014).  When we account for the life histories of victimization among incarcerated people, and the situational character of the violence in their lives, the principle of parsimony must admit mercy and forbearance.

June 4, 2019 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (2)

Sunday, June 02, 2019

"How to Convince Americans to Abolish the Death Penalty"

The title of this post is the headline of this New Republic commentary authored by Austin Sarat. Here are excerpts:

When New Hampshire abolished the death penalty on Thursday, the reaction to the news — at least nationally — was rather muted.  Here was a New England state, after all, whose machinery of death had rusted long ago.  “This debate has been largely symbolic, because New Hampshire has neither an active death penalty system nor any executions on the horizon,” The Washington Post reported.  “The state has only one person on death row … and last carried out an execution in 1939.”...

But there is greater significance here than it seems.  For starters, New Hampshire joins a growing trend.  Now, since 2007, seven states have abolished capital punishment by legislative action, and three by judicial decree.  (Nebraska abolished it legislatively, but voters subsequently reinstated it in a referendum.)  Four other states have a moratorium in place preventing anyone from being executed.  This period has been one of the most successful in the modern history of death penalty abolitionism.

And the politics of New Hampshire are not those of, say, Massachusetts.... While the state Senate and House are both controlled by Democrats, they needed votes from across the aisle to reach the two-thirds threshold to override Republican Governor Chris Sununu.  There are thus important lessons from New Hampshire about how abolitionists can be successful across the country — namely, by shifting the grounds of the debate so as not to be painted as soft on crime or out of touch with mainstream American values....

Traditionally, opponents of the death penalty have responded to [soft-on-crime] arguments by claiming that even the most heinous criminals are entitled to be treated with dignity or that there is nothing that anyone can do to forfeit their “right to have rights.”  Each of these arguments rejects the simple and appealing rationale for capital punishment: retribution.  But in doing so, it puts opponents of the death penalty on the side of society’s most despised and notorious criminals, of cop killers and of child murderers.  It is not surprising, then, that such arguments, while popular in philosophical and political commentary, have never carried the day in the debate about capital punishment in the United States.

New Hampshire abolitionists avoided this pitfall, changing the argument in ways that can and do appeal to a broader range of citizens.  They allied themselves with the plight of the families of murder victims.  “I am grateful to the many survivors of murder victims who bravely shared their stories with the Legislature this session, many of whom told us that the death penalty, with its requisite long legal process, only prolongs the pain and trauma of their loss,” said Democratic Senator Martha Hennessey in explaining her vote to override the veto.

They also avoided the soft-on-crime label by noting that the death penalty does not make citizens safer and that it is “archaic, costly, discriminatory and violent.”  And they enlisted conservative allies.  As one New Hampshire abolitionist said, “more conservatives than ever know the death penalty is a failed government program that does not value life, threatens innocent people, and wastes money.”

The campaign to abolish capital punishment succeeded in New Hampshire, just as it has succeeded elsewhere, because abolitionists resisted the temptation to engage with the red meat arguments of many death penalty supporters.  They appealed to American values of fairness, equal treatment, and pragmatism.  In so doing, they formed a coalition of legislators, political leaders, and citizens who shared the late Supreme Court Justice Harry Blackmun’s view that it is time to “stop tinkering with the machinery of death.”

Prior related post:

June 2, 2019 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (1)

Saturday, June 01, 2019

"Moral Restorative Justice: A Political Genealogy of Activism and Neoliberalism in the United States"

The title of this post is the title of this notable new paper authored by my Ohio State colleague Amy Cohen. Here is its abstract:

For decades, left proponents of restorative justice have wondered if their preference for “less state” would attract complex bedfellows and political alliances.  But it was only as the crisis of mass incarceration hit American cultural and political consciousness that a wide range of libertarian and conservative political organizations and actors began to promote restorative ideals.  This Article traces changing political, theological, and ideological articulations of restorative justice from the 1970s to now, knit together by a common grammar of relationality.  It argues that today, restorative justice exemplifies a distinctively moral form of neoliberalism, complicating the arguments of scholars who describe rightwing criminal justice reform as exemplifying cost-cutting and efficiency.  This account of restorative justice, in turn, reveals different possibilities and dangers for bipartisan collaborations: moral-relational values may be genuinely shared as they compete to establish highly disparate political, economic, and social visions.

June 1, 2019 in Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Monday, May 20, 2019

Exciting agenda for "Rewriting the Sentence Summit on Alternatives to Incarceration"

In this post a few weeks ago, I flagged this great event, titled ""Rewriting the Sentence Summit on Alternatives to Incarceration," taking place next month in New York City hosted by Columbia University and The Aleph Institute at Columbia Law School.  In my prior post, I spotlighted the many great speakers scheduled to be at the event (as detailed at this link), and noted that the event website provides this overview

I now see that this link provides the detailed schedule for all the panels, and I think sentencing fans will find interesting and important every one of the planned panels.  Here are just a few panel titles from the detailed agenda to whet appetites (click through to see all the big names under each panel title):

A New Wave of Prosecutorial Thinking: Views of Recently Elected District Attorneys

A Federal Legislative Look: The First Step Act, and the Next Steps

Risk Assessment: A Feature or a Bug? Perspectives on A Complex Debate

Sentencing Second Chances: Addressing Excessive Sentencing With Escape Valves

The Role of Mercy and Dignity in Criminal Justice: From Restoration to Clemency

May 20, 2019 in Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Sunday, May 19, 2019

Two great new policy briefs from Right on Crime discussing best practices for parole and probation

Marc Levin, who serves as Vice President for Right on Crime, has two great new "Policy Perspective" briefs on parole and probation systems. Below are the titles, links and "Key Points" from the start of both great documents:

Ten Tips for Policymakers for Parole

Key Points

• The criteria for deciding who is paroled should be objective and focused on reducing risks to public safety going forward.

• Parole boards should possess a diverse range of relevant areas of expertise and provide opportunities for meaningful participation by parole candidates and others with an interest in the outcome.

• Parole supervision and reentry should emphasize removing barriers to employment, incentives for performance, quality interactions between parole officers and those they supervise, and avenues for community-based organizations to assist people coming out of prison.

Ten Tips for Policymakers for Improving Probation

Key Points

• Probation can be an alternative or gateway to incarceration.

• Probation should be right-sized to serve only those individuals who require supervision for only the limited time period that their assessment and conduct indicate a continued need for supervision.

• Incentives should drive probation policy, both for agencies and those they supervise.

May 19, 2019 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (0)

Thursday, May 16, 2019

"Promoting Equality Through Empirical Desert"

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

According to empirical desert theory, good utilitarian grounds exist for distributing criminal punishment pursuant to the (retributive) intuitions of the lay community on criminal liability.  This theory’s insights, based on original empirical research and informed by social science, have significantly influenced contemporary criminal law theory.   Yet, ostensibly, the theory is hampered by serious limitations, which may have obstructed its progress and its potential to guide criminal justice reform.  Chief among them: it draws from community intuitions, and community intuitions — as the theory acknowledges — are sometimes immoral.  In addition to these “immorality objections,” (commonly illustrated by alluding to the antebellum South and Nazi Germany), critics have alleged, inter alia, that the theory is self-defeating, uses incongruous justifications, and engages in deceptive and exploitative practices.

This Article argues that these critiques are misplaced and overstated, and that empirical desert theory can be safely relied on in criminal justice — and beyond.  Despite the captivating historical illustrations and the intuitive appeal of immorality objections, this Article demonstrates that empirical desert theory is nearly immune to them, by virtue of previously underappreciated features of its scientific methodology.   Moreover, it can do even better. T  his Article presents an innovative proposal to reconceptualize the theory by incorporating into its scientific methodology a minimalistic normative commitment to equality and non-discrimination.  It provides theoretical support and specific parameters for this reconceptualization, which imbues the theory with qualities capable of further safeguarding it from immorality objections.  Furthermore, the Article explores ten additional criticisms of the theory, seriatim, and demonstrates that the proposed reconceptualization substantially strengthens the theory’s ability to overcome them.  In its conclusion, the Article outlines two future paths for the theory’s application beyond criminal law, discussing the possibility to “export” its insights to international humanitarian law and its potential to reframe the interaction between criminal law theory and philosophy.

May 16, 2019 in Offense Characteristics, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Wednesday, May 15, 2019

An illuminating study highlighting bright ways to deter and prevent crime other than through prison punishments

Some of the (shrinking?) fans of incarceration, if pressed about the utilitarian crime-control value of this costly form of punishment, can sometimes be heard to say that even if prison does not effectively deter or rehabilitate offenders, at least it serves to incapacitate and prevent repeat offenses.  One important response to such a claim is that prisoners can and do still commit crimes in prison.  But an even more important and satisfying response is that monies used to imprison might often be much better used on other government activities that will better deter and prevent crime, and that kind of response is supported by this interesting new National Bureau of Economic Research Working Paper.  The paper, titled "Reducing Crime Through Environmental Design: Evidence from a Randomized Experiment of Street Lighting in New York City," is authored by Aaron Chalfin, Benjamin Hansen, Jason Lerner and Lucie Parker, and here is its abstract:

This paper offers experimental evidence that crime can be successfully reduced by changing the situational environment that potential victims and offenders face.  We focus on a ubiquitous but surprisingly understudied feature of the urban landscape — street lighting — and report the first experimental evidence on the effect of street lighting on crime. Through a unique public partnership in New York City, temporary streetlights were randomly allocated to public housing developments from March through August 2016.  We find evidence that communities that were assigned more lighting experienced sizable reductions in crime.  After accounting for potential spatial spillovers, we find that the provision of street lights led, at a minimum, to a 36 percent reduction in nighttime outdoor index crimes.

May 15, 2019 in Criminal Sentences Alternatives, Purposes of Punishment and Sentencing | Permalink | Comments (2)

Friday, May 10, 2019

Split Eighth Circuit panel explores lifetime supervised release conditions for child porn offender

A helpful reader made sure I did not miss an Eighth Circuit panel's work today in US v. Carson, No. 17-3589 (8th Cir. May 10, 2019) (available here). Like many federal sentencing cases, there are lots of small stories wrapped within the numbing reality of an offender with an affinity for child porn and teenage girls receiving mass punishment: e.g., the defendant here got "only" 20 years in prison when his guideline range called for 30 years; even though facing the real possibility of imprisonment until nearly 2045, for some reason "Carson did not submit his own sentencing memorandum"; counsel at sentencing did not object to broad conditions of lifetime supervised release, so they get reviewed only for plain error.

The heart of the legal dispute on appeal is defendant's claim that sentencing court should have had to provide a distinct analysis and justifications for his special conditions of supervised release, one of which included social media restrictions seemingly comparable to what the Supreme Court stuck down as unconstitutional in Packingham v. North Carolina. Here is a portion of the majority's rejection of the claims on appeal:

We next turn to Carson’s argument that Special Condition 16 (the social media restriction) “suffers the same flaws as the North Carolina statute held to be unconstitutional in Packingham.”  The Supreme Court in Packingham considered the constitutionality of a statute prohibiting registered sex offenders from “access[ing] a commercial social networking Web site where the sex offender knows that the site permits minor children to become members” or from “creat[ing] or maintain[ing] personal Web pages” on such sites.  Packingham, 137 S. Ct. at 1733 (quoting N.C. Gen. Stat. Ann. § 14-202.5(a), (e)).  The Supreme Court held the statute burdened substantially more speech than necessary to further the government’s interests in protecting minors from sexual abuse.  Id. at 1737–38.  The Court reasoned that “to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights,” given the importance of social media for accessing information and communicating with others. Id. at 1737.  Carson argues his court-imposed inability to maintain or create a user account on any social media site falls squarely under the holding of Packingham.

We disagree.  Several of our sister circuits have rejected a similar argument in challenges to supervised release conditions forbidding access to the internet — and effectively to social media sites — without prior approval or monitoring by a court or probation officer.  See United States v. Antczak, 753 F. App’x. 705, 715 (11th Cir. 2018) (unpublished); United States v. Halverson, 897 F.3d 645, 657–58 (5th Cir. 2018); United States v. Browder, 866 F.3d 504, 511 n.26 (2d Cir. 2017); United States v. Rock, 863 F.3d 827, 831 (D.C. Cir. 2017).  These courts have noted Packingham invalidated only a post-custodial restriction and expressed concern that the statute applied even to “persons who have already served their sentence.”  Halverson, 897 F.3d at 658 (quoting Packingham, 137 S. Ct. at 1737).  Because supervised release is part of a defendant’s sentence, Packingham does not render a district court’s restriction on access to the internet during a term of supervised release plain error.  See id.; Rock, 863 F.3d at 831.  We find this reasoning applies with equal force here.  Thus, even assuming the district court’s prohibition on creating or maintaining a social media profile implicates the same First Amendment interests as a restriction on accessing social media altogether, the district court did not commit plain error by imposing Special Condition 16.

And here is the closing paragraph of Judge Kelly's dissent:

I do not minimize the seriousness of Carson’s crimes.  For those he will serve a twenty-year prison term followed by a lengthy term of supervised release.  I also recognize the need to monitor Carson’s conduct upon release.  But Carson was thirty- three at the time of his arrest, and his lifetime term of supervised release could very well last decades. We can only imagine the universe of internet-reliant electronic devices that will pervade everyday life by then.  The length and conditions of Carson’s supervised release may well be justified, but such punishment deserves, at minimum, some reasoned explanation from the sentencing court.  Accordingly, I respectfully dissent.

May 10, 2019 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing, Who Sentences | Permalink | Comments (0)

Wednesday, May 08, 2019

"Rewriting the Sentence Summit on Alternatives to Incarceration"

The title of this post is the title of this great event taking place next month in New York City hosted By Columbia University and The Aleph Institute at Columbia Law School.  Though I have played a small role in helping to plan the event, some folks much more talented than me have arranged for an extraordinary array of great speakers to be at the event (as detailed at this link). The event website provides this overview:

What is the Rewriting the Sentence Summit on Alternatives to Incarceration?

This is a high-level summit that aims to highlight the range of alternative sentencing policies and programs that are currently operating in the U.S. and abroad, and look more deeply at their effectiveness and functional requirements.  It will include a wide range of perspectives on these issues.

Who will participate in the summit?

The summit will bring together an unprecedented number of current and former leaders and senior government officials who have served on the front lines of day-to-day operations in the criminal justice system, including law enforcement, government, judiciary, defense, forensic social workers and psychologists, and nonprofits, as well as formerly incarcerated people, victims and advocacy groups.

What are the summit’s objectives?

Beyond education, The Rewriting the Sentence Summit on Alternatives to Incarceration will use plenary, breakout and interactive sessions to generate substantive dialogue between all delegates and identify key priorities for:

  • Expanding the use of effective alternative sentencing programs while enhancing public safety, including the mechanisms of discretion (police, prosecutorial and judicial) and legislative reforms;
  • Addressing public safety concerns over its broadened use and practical barriers to expansion and launching effective new programs in new jurisdictions, including operational limitations, program evaluation and public education;
  • NGOs that can help to support broader application of effective alternative sentencing, e.g., ubiquity of access and other measures and peripheral programs to help ensure successful reentry.

What sets the summit apart from other events?

The number of high-level participants; the balance between reformers and healthy skeptics; the interactive session; and the focus on making connections and producing outcomes that include the development of a database of best practices and an informal network for future coordination and support.

May 8, 2019 in Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (3)

"Does our county really need a bigger jail?"

Pretrial_detention_growth450x337The question in the title of this post is the title of a new Prison Policy Initiative report that seeks to provide cities and counties with a guide for preventing unnecessary jail expansion.  This press release about the report reviews the essentials (and provides a link):

The report, Does our county really need a bigger jail?, lays out 33 questions that local decision-makers should ask in evaluating proposals for new or bigger jails.  “It’s very common today for jails to be overcrowded, because the number of people in jails nationwide has tripled in the last 30 years,” said report author Alexi Jones. “But in too many counties, jail growth is rooted in known policy failures like an overreliance on money bail. Local policymakers owe it to their constituents to find out if there is a better fix to overcrowding than just building a new or bigger jail.”

The report’s 33 questions for policymakers include:

  • On a typical day, how many people are confined in the existing jail who have not been convicted?
  • How many people in the county are incarcerated because they cannot afford to pay fines and fees?
  • What specialized “diversion” courts and treatment programs is the county using to divert people struggling with substance use and mental illness into more effective treatments than jail?
  • Do official cost estimates for building new jail space include not only the cost of construction, but the cost of debt service on the loan, annual operation costs, and collateral costs such as adverse impacts on public health?

“Building new jail space typically costs tens of millions of dollars or more, even as other options that are both more cost-effective and more compassionate are ignored,” said Jones. “If policymakers can’t answer these questions about why more jail space is necessary, they should not be undertaking jail expansion.”

For all 33 questions, the report also offers a set of alternatives and best practices, including:

  • Releasing more pretrial defendants on their own recognizance, and investing in pretrial services to help them make their court dates;
  • Requiring judges to set fines and fees based on a defendant’s ability to pay;
  • Investing in specialized “problem-solving” courts for people with mental health or substance use disorders that serve as true alternatives to jail time.

The report’s recommendations are accompanied by helpful graphics, as well as examples of local and state governments successfully implementing alternatives to jail expansion. “We know that the answer to mass incarceration begins at the local level,” said Jones. “That’s why it’s critical to help cities and counties think beyond jail expansion when it comes to improving public safety.”

May 8, 2019 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Tuesday, May 07, 2019

"Report on Algorithmic Risk Assessment Tools in the U.S. Criminal Justice System"

The title of this post is the title of this notable new report "written by the staff of the Partnership on AI (PAI) and many of [its] Partner organizations."  Here is part of the report's executive summary:

This report documents the serious shortcomings of risk assessment tools in the U.S. criminal justice system, most particularly in the context of pretrial detentions, though many of our observations also apply to their uses for other purposes such as probation and sentencing.  Several jurisdictions have already passed legislation mandating the use of these tools, despite numerous deeply concerning problems and limitations. Gathering the views of the artificial intelligence and machine learning research community, PAI has outlined ten largely unfulfilled requirements that jurisdictions should weigh heavily and address before further use of risk assessment tools in the criminal justice system.

Using risk assessment tools to make fair decisions about human liberty would require solving deep ethical, technical, and statistical challenges, including ensuring that the tools are designed and built to mitigate bias at both the model and data layers, and that proper protocols are in place to promote transparency and accountability.  The tools currently available and under consideration for widespread use suffer from several of these failures, as outlined within this document.

We identified these shortcomings through consultations with our expert members, as well as reviewing the literature on risk assessment tools and publicly available resources regarding tools currently in use. Our research was limited in some cases by the fact that most tools do not provide sufficiently detailed information about their current usage to evaluate them on all of the requirements in this report.  Jurisdictions and companies developing these tools should implement Requirement 8, which calls for greater transparency around the data and algorithms used, to address this issue for future research projects.  That said, many of the concerns outlined in this report apply to any attempt to use existing criminal justice data to train statistical models or to create heuristics to make decisions about the liberty of individuals.

Challenges in using these tools effectively fall broadly into three categories, each of which corresponds to a section of our report:

-- Concerns about the validity, accuracy, and bias in the tools themselves;

-- Issues with the interface between the tools and the humans who interact with them; and

-- Questions of governance, transparency, and accountability.

Although the use of these tools is in part motivated by the desire to mitigate existing human fallibility in the criminal justice system, it is a serious misunderstanding to view tools as objective or neutral simply because they are based on data.  While formulas and statistical models provide some degree of consistency and replicability, they still share or amplify many weaknesses of human decision-making.  Decisions regarding what data to use, how to handle missing data, what objectives to optimize, and what thresholds to set all have significant implications on the accuracy, validity, and bias of these tools, and ultimately on the lives and liberty of the individuals they assess....

In light of these issues, as a general principle, these tools should not be used alone to make decisions to detain or to continue detention.  Given the pressing issue of mass incarceration, it might be reasonable to use these tools to facilitate the automatic pretrial release of more individuals, but they should not be used to detain individuals automatically without additional (and timely) individualized hearings.  Moreover, any use of these tools should address the bias, human-computer interface, transparency, and accountability concerns outlined in this report.

This report highlights some of the key problems encountered using risk assessment tools for criminal justice applications.  Many important questions remain open, however, and unknown issues may yet emerge in this space.  Surfacing and answering those concerns will require ongoing research and collaboration between policymakers, the AI research community, and civil society groups.  It is PAI’s mission to spur and facilitate these conversations and to produce research to bridge these gaps.

May 7, 2019 in Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Technocorrections, Who Sentences | Permalink | Comments (1)

Friday, May 03, 2019

"When Plea Bargaining Became Normal"

The title of this post is the title of this interesting new article authored by William Ortman and now available on SSRN. Here is its abstract:

Plea bargaining is the criminal justice system, the Supreme Court tells us, but how did it get to be that way?  Existing scholarship tells only part of the story.  It demonstrates that plea bargaining emerged in the nineteenth century as a response to (depending on one’s theory) increasing caseloads, expanding trial procedures, or professionalizing law enforcement.  But in order for plea bargaining to truly become the criminal justice system, the legal profession would have to accept and internalize it.  That was not its first reaction. When legal scholars and reformers in the 1920s discovered that bargaining dominated America’s criminal courts, they quickly denounced it as abusive.  By the 1960s, only four decades later, the legal profession had learned to love it.

This article investigates the process that made plea bargaining the normal way of doing American criminal justice.  The story unfolds in three parts—plea bargaining’s discovery by and frosty reception from the “crime commissions” of the 1920s; its rehabilitation by the Legal Realists in the 1930s; and finally its decisive embrace by scholars and judges in the 1950s and ‘60s.  The Realists’ starring role is surprising, as they are not usually recognized for contributing to criminal law or procedure.  This article shows that they deserve credit (or plausibly blame) for taking the first major steps towards normalization.  The article also pays close attention to an objection to plea bargaining that arrived late — that it depends on coercing defendants to plead guilty.  By the time this objection emerged in the 1950s, plea bargaining’s momentum was too strong; legal elites, and, ultimately, the Supreme Court, saw no option but to rationalize it away. Above all, this article reveals that normalized plea bargaining is newer and more historically contingent than it seems.

May 3, 2019 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (1)

Thursday, May 02, 2019

Summer sentencing (with notable particulars) for first college admission scandal parents to enter pleas in court

This Los Angeles Times article, headlined "Bay Area couple first to plead guilty in college admissions scandal," reports on a huge high-profile federal fraud case now getting ever closer to sentencing for one pair of defendants. Here are the details:

A Northern California couple who secured their daughters’ spots at UCLA and USC with bribes and rigged tests pleaded guilty Wednesday to fraud and money laundering offenses, the first parents to admit their guilt before a judge in an investigation that has sent shivers through circles of Silicon Valley, Wall Street, Hollywood and some of the country’s most elite universities.

Davina Isackson of Hillsborough, Calif., pleaded guilty to one count of fraud conspiracy. Her husband, real estate developer Bruce Isackson, pleaded guilty to one count of fraud conspiracy, one count of money laundering conspiracy and one count of conspiracy to defraud the United States. They will be sentenced July 31. In Davina Isackson’s plea agreement, prosecutors recommended a sentence at the low end of federal guidelines that call for 27 to 33 months in prison. For Bruce Isackson, they suggested a sentence at the low end of 37 to 46 months in prison.

Of the 33 parents charged in the investigation, the Isacksons are the only ones to have signed cooperation deals with prosecutors. If prosecutors decide the couple provided useful and credible information, they can recommend that a judge sentence them below the federal guidelines.

Investigators want to learn from the couple who at UCLA and USC knew of an alleged recruiting scheme they used to slip their two daughters into the universities as sham athletes, The Times has reported. The Isacksons’ older daughter, Lauren, was admitted to UCLA as a recruited soccer player, given a jersey number and listed on the team roster as a midfielder for an entire season, despite never having played the sport competitively, prosecutors alleged.

To ensure she got in, they said, her parents transferred $250,000 in Facebook stock to the foundation of Newport Beach college consultant William “Rick” Singer, which Bruce Isackson later wrote off on the couple’s taxes as a charitable gift....

The Isacksons tapped Singer’s “side door” the following year to have their younger daughter admitted to USC as a recruited rower, prosecutors alleged. The couple also availed themselves of Singer’s test-rigging scheme, prosecutors said, in which he bribed SAT and ACT administrators to turn a blind eye to his 36-year-old, Harvard-educated accomplice.

With the help of the accomplice, Mark Riddell, the Isacksons’ younger daughter scored a 31 out of 36 on the ACT, prosecutors said. Her father paid Singer’s foundation $100,000 and wrote it off on taxes as a charitable gift.

I find notable that federal prosecutors think that two+ years of imprisonment is necessary for one of these the Isacksons and that three+ years is necessary for the other in accord with guideline calculations. But, because it appears that these defendants may be providing "substantial assistance," the feds may ultimately be recommending lower sentences as a kind of compensation for this kind of cooperation.

Prior related posts:

May 2, 2019 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (4)

Wednesday, April 24, 2019

"How to Argue with an Algorithm: Lessons from the COMPAS ProPublica Debate"

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

The United States optimizes the efficiency of its growing criminal justice system with algorithms however, legal scholars have overlooked how to frame courtroom debates about algorithmic predictions.  In State v Loomis, the defense argued that the court’s consideration of risk assessments during sentencing was a violation of due process because the accuracy of the algorithmic prediction could not be verified.  The Wisconsin Supreme Court upheld the consideration of predictive risk at sentencing because the assessment was disclosed and the defendant could challenge the prediction by verifying the accuracy of data fed into the algorithm.

Was the court correct about how to argue with an algorithm?

The Loomis court ignored the computational procedures that processed the data within the algorithm.  How algorithms calculate data is equally as important as the quality of the data calculated.  The arguments in Loomis revealed a need for new forms of reasoning to justify the logic of evidence-based tools.  A “data science reasoning” could provide ways to dispute the integrity of predictive algorithms with arguments grounded in how the technology works.

This article’s contribution is a series of arguments that could support due process claims concerning predictive algorithms, specifically the Correctional Offender Management Profiling for Alternative Sanctions (“COMPAS”) risk assessment.  As a comprehensive treatment, this article outlines the due process arguments in Loomis, analyzes arguments in an ongoing academic debate about COMPAS, and proposes alternative arguments based on the algorithm’s organizational context.

Risk assessment has dominated one of the first wide-ranging academic debates within the emerging field of data science.  ProPublica investigative journalists claimed that the COMPAS algorithm is biased and released their findings as open data sets.  The ProPublica data started a prolific and mathematically-specific conversation about risk assessment as well as a broader conversation on the social impact of algorithms.  The ProPublica-COMPAS debate repeatedly considered three main themes: mathematical definitions of fairness, explainable interpretation of models, and the importance of population comparison groups.

While the Loomis decision addressed permissible use for a risk assessment at sentencing, a deeper understanding of daily practice within the organization could extend debates about algorithms to questions about procurement, implementation, or training.  The criminal justice organization that purchased the risk assessment is in the best position to justify how one individual’s assessment matches the algorithm designed for its administrative needs.  People subject to a risk assessment cannot conjecture how the algorithm ranked them without knowing why they were classified within a certain group and what criteria control the rankings.  The controversy over risk assessment algorithms hints at whether procedural due process is the cost of automating a criminal justice system that is operating at administrative capacity.

April 24, 2019 in Data on sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Technocorrections, Who Sentences | Permalink | Comments (0)