Monday, October 18, 2021

Notable new essays in Brennan Center's "Punitive Excess" series focused on responding to violent crime and mandatory minimums

highlighted here back in April the terrific essay series assembled by the Brennan Center for Justice under the title "Punitive Excess."  I have blogged about sets of new essays repeatedly (as linked below) because each new set of new essays are must reads (like all that come before).  The latest pair of piece ought to be of particular interest to sentencing fans:

Both of these pieces are must reads, and the piece on mandatory minimums has links to research and other materials that might be useful for those litigating against such sentences or seeking reductions therefrom.  Here is a segment (with links) from that piece:

[P]rosecutors’ power over mandatory minimums in turn creates racial disparities, obliterating any pretense of an unbiased system.  A recent study finds that prosecutors’ mandatory minimum charges resulted in Black individuals spending more time in prison than whites for the exact same crimes.  In fact, prosecutors bring mandatory minimums 65 percent more often against Black defendants, all else remaining equal. Another study similarly finds that some federal prosecutors charge Black and Latino individuals more often than white individuals with possession or sale of a quantity of drugs just sufficient to trigger a mandatory minimum; the disparity is highest “in states with higher levels of racial animus.”

Finally, mandatory minimums do not promote community safety.  Rather, any prison time at all increases the risk of future crime because “incarceration is inherently criminogenic”; mandatory minimums only exacerbate this situation.  Florida experienced a 50 percent spike in crime after enacting mandatory minimums.  Long sentences also make it more difficult for people to reintegrate into society.  And our overreliance on prisons makes us less safe by diverting resources from other critical public safety needs.  In contrast, studies show that shorter sentences in drug cases neither diminish public safety nor increase drug abuse.

The dominant paradigm is vulnerable, and instituting a new paradigm is both possible and crucial. President Biden and his attorney general have denounced mandatory minimums, as did former Attorney General Eric Holder.  Even though federal prosecutors — all of whom are subject to supervision by the Department of Justice — have long been the primary proponents of mandatory minimums, Attorney General Merrick Garland affirmed this position during his confirmation hearings: “We should . . . , as President Biden has suggested, seek the elimination of mandatory minimum[s].”

However, despite Garland’s testimony, his Department of Justice has given no sign that it will stop pursuing mandatory minimums. In fact, earlier this year, Garland reinstated a 2010 Holder policy that incorporated a long-standing directive to federal prosecutors: “Where two crimes have the same statutory maximum and the same guideline range, but only one contains a mandatory minimum penalty, the one with the mandatory minimum” should be charged.  To make matters worse, Garland chose not to reinstate a 2013 Holder policy that both directed prosecutors to decline to charge a mandatory minimum in “low-level, non-violent drug offenses” and explicitly acknowledged that such sentences “do not promote public safety, deterrence, and rehabilitation.”  After twenty years defending people charged with federal crimes, I’ve learned that prosecutors are rarely agents of change.  This is unfortunate because Garland has real power to reduce racialized mass incarceration. He can and should instruct federal prosecutors to refrain from charging and seeking mandatory sentences, especially in drug cases, where popular opposition to mandatory minimums is strongest.

Prior related posts:

October 18, 2021 in Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

"Towards A New Framework for Achieving Decarceration: A Review of the Research on Social Investments"

The title of this post is the title of this new paper from the Square One Project at Columbia University authored by Laura Hawks, Evangeline Lopoo, Lisa Puglisi and Emily Wang. Here is a portion of the long paper's introduction:

[T]his paper aims to examine the science behind sustainable decarceration — and the extent to which there is scientific support for how community organizations and societal entities can lead decarceration efforts in concert with continued legal reforms to descale facility-based and community corrections populations.  To be sure, academics of disparate ideology have previously studied sections of this road map.  Some support the need for improving correctional programming, including a risk-needs-responsivity model of correctional programming, which aims to optimize resources within correctional systems to rehabilitate those incarcerated.  Others, including Professors Angela Davis and Ruth Wilson Gilmore, conceptually reject reforms within the correctional sector and propose a framework for dismantling the prison industrial complex that emphasizes investments in alternate sectors, prioritizing economic and political liberation of the historically oppressed (Davis 2005; Wilson Gilmore 2007).  With this paper, we intend to add to this latter school of thought by systematically cataloguing community investments detached from the criminal legal system which promote decarceration.  We then highlight what academics have not yet sought to study.  We undertake this study with the belief that decarceration is as worthy of careful study and investment as the prevention of cardiovascular disease and warrants experimentally designed studies at the individual and community level which tests the short and long-term benefits of intervention, dose of intervention, and the costs and benefits to society.

To our knowledge, no review has identified and synthesized the experimental evidence to determine which community investment efforts effectively support ongoing decarceration efforts and which do not.  To fill this gap, we have conducted a scoping review to identify interdisciplinary interventions, detached from the correctional control system, in the domains of education, housing, healthcare, employment, and social support programs that help reduce incarceration by reducing likelihood of becoming involved in the criminal legal system (referred to in this paper as incident incarceration) or repeat involvement in the criminal legal system (referred to in this paper as recidivism).  We centered our review on the following research question:

Which interventions (including social policies) grounded in community investment have been shown to achieve decarceration as measured by reduced incident incarceration or reduced recidivism?

October 18, 2021 in Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (0)

Sunday, October 17, 2021

"Doing Justice in Sentencing"

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

Anyone who would read a paper on this subject or with this title knows that sentences received by people convicted of crimes in American courts, especially serious ones, are much too often cruelly severe, racially disparate, and reflective more of a prosecutor’s or judge’s idiosyncrasies than of a reasoned assessment of what considerations of justice concerning this offense by this person require or permit.  The process is ultimately casual, as if invasive intrusion into someone’s life is a matter of no great importance.  To people sentenced, their families, and others who love them it is devastatingly important.  Relatively simple ideas about justice, fairness, equality, and parsimony provide a framework to replace contemporary casual justice with a jurisprudence that takes human dignity seriously.

October 17, 2021 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (0)

Monday, October 11, 2021

"Fatalism and Indifference — The Influence of the Frontier on American Criminal Justice"

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

American criminal laws and criminal justice systems are harsher, more punitive, more afflicted by racial disparities and injustices, more indifferent to suffering, and less respectful of human dignity than those of other Western countries.  The explanations usually offered — rising crime rates in the 1970s and 1980s, public anger and anxiety, crime control politics, neoliberal economic and social policies — are fundamentally incomplete.  The deeper explanations are four features of American history and culture that shaped values, attitudes, and beliefs and produced a political culture in which suffering is fatalistically accepted and policy makers are largely indifferent to individual injustices.

The four elements are the history of American race relations, the evolution of Protestant fundamentalism, local election of judges and prosecutors, and the continuing influence of political and social values that emerged during three centuries of western expansion.  The last, encapsulated in Frederick Jackson Turner’s “frontier thesis,” is interwoven with the other three.  Together, they explain long-term characteristics of American criminal justice and the extraordinary severity of penal policies and practices since the 1970s.

October 11, 2021 in Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (1)

Wednesday, September 29, 2021

"Toward an Optimal Decarceration Strategy"

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

With mounting support for dramatic criminal justice reform, the question is no longer whether we should decarcerate American prisons but how.  This question is far more complicated than it might seem.  We could cut the prison population in half, for example, by drastically shortening sentences.  Or we could reduce prison admissions.  Or we could do both.  And we could do either or both for countless combinations of criminal offenses.  Moreover, even when they reach the same numeric target, these strategies are not equivalent.  They would have vastly different consequences for both prisoners and the public and widely varying timeframes to take effect.  To pick among them, we need richer metrics and more precise empirical estimates to evaluate their consequences.

This Article begins by proposing metrics to evaluate the relative merits of competing decarceration strategies.  The public debate has focused almost exclusively on how we might decarcerate while minimizing any increases in crime and has, therefore, underappreciated the costs of prison itself.  We should consider at least three more metrics: the social harm of incarceration, racial disparity, and timing.  Next, the Article develops an empirical methodology to identify the range of strategies that would reduce the national prison population by 25, 50, and 75%.  Finally, it identifies the best performing strategies against each metric.

The results have several broader takeaways.  First, the optimal approach to decarceration depends heavily on which metrics we value most.  The results thus quantify a stark set of policy choices behind a seemingly simple objective. Second, the results confirm that, to dramatically shrink prisons, it is critical to decarcerate a substantial number of people convicted of violent offenses — a fact that may surprise the majority of Americans who believe people convicted of drug offenses occupy half of prison beds.  Finally, the results show that race-neutral decarceration strategies are likely to exacerbate rather than mitigate racial disparities.  Armed with the conceptual tools and methodologies developed in this Article, we can make more informed decisions about how to best scale down prisons, given our priorities and constraints.

September 29, 2021 in National and State Crime Data, Prisons and prisoners, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

Sunday, September 26, 2021

"Custodial Sanctions and Reoffending: A Meta-Analytic Review"

The title of this post is the title of this forthcoming publication in Crime & Justice authored by Damon Petrich, Travis Pratt, Cheryl Lero Jonson, and Francis Cullen. Here is its abstract:

Beginning in the 1970s, the United States began an experiment in mass imprisonment.  Supporters argued that harsh punishments such as imprisonment reduce crime by deterring inmates from reoffending.  Skeptics argued that imprisonment may have a criminogenic effect.  The skeptics were right.  Previous narrative reviews and meta-analyses concluded that the overall effect of imprisonment is null.  Based on a much larger meta-analysis of 116 studies, the current analysis shows that custodial sanctions have no effect on reoffending or slightly increase it when compared with the effects of noncustodial sanctions such as probation.  This finding is robust regardless of variations in methodological rigor, types of sanctions examined, and sociodemographic characteristics of samples.  All sophisticated assessments of the research have independently reached the same conclusion.  The null effect of custodial compared with noncustodial sanctions is considered a “criminological fact.”  Incarceration cannot be justified on the grounds it affords public safety by decreasing recidivism.  Prisons are unlikely to reduce reoffending unless they can be transformed into people-changing institutions on the basis of available evidence on what works organizationally to reform offenders.

September 26, 2021 in Prisons and prisoners, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Thursday, September 16, 2021

"Punishment and the Body"

The title of this post is the title of this notable new article authored by Christopher Belshaw that I just saw in the new Journal of Controversial Ideas.  Here is its abstract:

Suppose we accept that punishment can be legitimate.  What form should it take?  Many of us believe that it can be acceptable to fine or imprison someone, but that capital punishment, along with corporal punishment in its various manifestations, is wholly unacceptable.  I suggest that it is hard to account for or justify this distinction.  But granting that resistance to these latter forms is unlikely to be dislodged, and granting too that imprisonment in particular is hardly problem-free, it is worth considering whether there might be alternatives.  And I argue here that we should consider enforced coma as a procedure having many advantages over the more familiar methods of delivering a penalty.  Of course, there are disadvantages also.  The aim isn’t to offer a detailed and practical solution to the problem of crime, but to explore some of the presumptions and principles involved in our thinking about punishment.

September 16, 2021 in Criminal Sentences Alternatives, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Saturday, September 11, 2021

"Expanding Compassion Beyond the COVID-19 Pandemic"

The title of this post is the title of this paper now on SSRN authored by Katie Tinto and Jenny Roberts. Here is its abstract:

Compassionate relief matters.  It matters so that courts may account for tragically unforeseeable events, as when an illness or disability renders proper care impossible while a defendant remains incarcerated, or when family tragedy leaves an inmate the sole caretaker for an incapacitated partner or minor children.  It matters too, as present circumstances make clear, when public-health calamities threaten inmates with literal death sentences.  It matters even when no crisis looms, but simply when continued incarceration would be “greater than necessary” to achieve the ends of justice.

September 11, 2021 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Tuesday, August 31, 2021

Notable response to notable attack on conservatives role in modern criminal justice reform

Lars Trautman and Brett Tolman have this interesting new Washington Examiner commentary headlined, "No, criminal justice reform isn’t causing the current crime wave." Here are excerpts (with links from the original):

Conservative criminal justice reformers have faced occasional skepticism over our tried-and-true criminal justice solutions, but never something quite so outlandish as a recent suggestion, by an avowed conservative, no less, that conservative reformers somehow bear blame for rising violent crime in liberal bastions such as New York City and Portland.

Sean Kennedy, in his recent Washington Examiner article , attacks our organization, Right on Crime, using just such an argument.  Kennedy actually acknowledges our record of helping Texas and other conservative states simultaneously reduce their crime rates, prison populations, and criminal justice spending.  But he then claims, without evidence and employing a classic logical fallacy , that this activity then caused subsequent increases in crime in Texas.  Note that he makes this claim even though crime spiked at exactly the same time he refers to in many states where none of our reforms were enacted....

But those of us who have served in law enforcement, as prosecutors or in corrections, have learned that if you invest properly in police, evidence-based programming, and prison alternatives, you can consequently achieve reductions in crime, recidivism, and ultimately prison construction costs.  Further, the evidence is clear that it is the certainty and not the severity of punishment that deters potential criminals.  A few more years on a potential sentence doesn’t change many minds about crime — it’s the long odds of getting away with it entirely.

Too often, people do get away with murder and a host of other crimes.  Homicide clearance rates nationally hover around 50%. Whether a killer meets justice is a coin flip . If you’re worried about public safety, it’s more productive to spend your time improving clearance rates, not bemoaning the elimination of ineffective mandatory minimums for nonviolent offenses.

This is why we are so adamant about reducing our overreliance on prison beds and other costly, unproductive interventions so that we can redirect this money and focus toward law enforcement and other strategies that actively improve our crime prevention and investigative capabilities.  Practically speaking, this means more funding for police departments, especially homicide and other specialized units focusing on serious and violent crime — a commonsense solution backed by research.  It also means helping shift to others, such as social workers and truant officers, at least a few of the dozen different jobs we currently expect law enforcement to complete, so that police can concentrate on actual police work.

August 31, 2021 in Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (2)

Monday, August 23, 2021

Deep thoughts about "criminal legal education" as we head back to school

I am very excited to be back to school this week with the extra pleasure and honor of teaching a (small section) of 1L Criminal Law (though I am frustrated that this semester will now be the fourth beset with COVID challenges).  My very first class ― way back in Fall 1997! ― was a small section of Criminal Law to 1Ls, and I surely want to believe I have done more good than harm in well over a dozen iterations of this great class.  However, this notable new Inquest essay by Shaun Ossei-Owusu should perhaps lead every criminal law professor to give some thought to whether and how we are just "Making Penal Bureaucrats."  This essay builds on some points he made in a recent law review article, "Criminal Legal Education," and here are excerpts:

Many lawyers play a central role in creating and sustaining mass incarceration; and many will leave law school with the ability to do the opposite. The high-profile death [of George Floyd] confirmed the brutality, inequality, and, for some, irredeemability of the very things many professors teach.  And criminal legal educators, some believe, need to read the room and offer instruction that better conveys the unjust realities of our legal system.  Alice Ristroph, a professor at Brooklyn Law School, may have offered the most forceful of these critiques, arguing that the detachment from reality and supposed race-neutrality of criminal-law teaching produces “pro-carceral” lawyers who help sustain mass incarceration.

My own work, published and forthcoming, moves in a similar direction, but also examines the race, poverty, and gender oversights in criminal legal education more broadly.  Some fellow academics will take issue with the idea that law professors have a hand in mass incarceration, to say nothing of other social ills, while others will applaud and nod in approval.  Whatever side they’re on, the undeniable reality is this: Law professors have trained and will continue to educate public defenders, prosecutors, and judges.  The legal education of these penal bureaucrats matters in the larger conversation around criminal justice policy and its deep, structural failings. And so the obstacles to changing legal education are really obstacles for the effort to tear down the legal edifice that made Floyd’s murder possible in the first place. As history shows, those challenges are not insignificant. To overcome them, we need a clear-eyed sense of what the precise obstacles are standing in the way to a more justice-oriented legal education.

Simply put, we can’t afford to ignore curricular reform in this moment, as navel-gazing as such a project may seem to those outside of law school.  I don’t profess to have all the answers.  Instead, I hope to sketch some issues we must confront if legal educators hope to meaningfully leverage this new energy in favor of effective curricular reform.  There have been various proposals and calls for action, but it seems necessary to raise questions that are sometimes muted or skipped over in the rush to reform a curriculum that has real shortcomings. The answers to these questions might lead us closer to capturing what legal historian Bob Gordon has described as “the motors of curricular change.”...

 With the exception of untenured faculty, law professors enjoy considerable latitude in their classrooms. A dean or administration has some carrots and sticks at their disposal, but few are game changers. These professors can be fussy and persnickety about teaching, and rightfully so.  Teaching comprises a substantive portion of professorial duties (the other two standard activities being research and service). As one professor observed in 1968, “I have seen law teachers, who have no peers in nitpickery, verge on purple apoplexy in debate over the curriculum. The whole academic business is fraught with vested interests, gored oxen, ground axes, pet peeves, visionary schemes, and intractable inertia.”

All this power-wielding exists in a context where there are competing ideas about the role of the professor.  A mere transmitter of what the law is?  A camouflaged activist who blends instruction with the inculcation of a particular set of values that makes students want to improve the criminal justice system, independent of how many people actually want to go in that line of work?  An instructor whose teaching discourages students from certain kinds of work as undesirable — where progressive prosecution and indigent defense alike are “system-reifying”?

In view of this morass of challenges, it is no wonder that urging legal instructors to talk more about racism, poverty, sexism, homophobia, and transphobia in their classrooms — even if they engage those topics already — is no stroll in the park.  Looking to the broader aim of criminal legal reform, explaining why the rest of the public should care or enter this discussion at all is tricky.  Law schools can be cordoned off from their local communities.  The key here is to recognize that this is a site of struggle where change-oriented people and organizations can develop allyships with like-minded students and faculty to help craft solutions to the multilayered problems of our penal system.

For students, I hope that identifying these challenges will clarify two things.  The first, which is something that I’ve consistently argued, is that legal education is unlikely to provide students with the kind of social justice-oriented training that some are demanding.  Self-led learning and organizing by student groups within and across law schools may have to be the second-best option. But this is not simply nudging students toward neoliberal self-help.  My second hope, instead, is for students to better understand these constraints — and in the process, to get a better sense of how to organize for and demand desired changes from their institutions.  Issues such as faculty composition, faculty governance, the professional pathways of graduates, and ideological variation within student bodies are some of the many issues that shape what they learn in a criminal legal education course.  But these factors may not be readily apparent to students who don’t have a sense of the “backstage” of legal education.  The short-term nature of legal education — three years, or two if you do not count the overbearing first year or a third year some students often check out of — demands cooperation with change-minded people outside of law schools and intentional strategies that withstand law school’s running out the clock on curricular change and hoping that the next cohort of students does not notice.

My fellow legal educators are likely to understand where I’m coming from. For those who care about this issue, my desires are also twofold.  First, I hope that these reflections will spur them to honestly assess where they might fit on a rough spectrum of this kind of curricular reform: active implementer, passive supporter, or outright adversary.  I have my own beliefs on the desirability of revamping criminal legal education; and yet I think there are principled justifications for each of these dispositions.  Let us just be intellectually honest about where we stand.  Second, I hope that we can all see that we are part of a vocation that has long professed ideas about intellectual curiosity, social justice, and equality under the law.  Nevertheless, our field has not been fully responsive to longstanding appeals to include legally relevant conversations about social inequality in our teaching.  Our response to this moment will partially dictate whether our profession can march closer toward social justice-oriented legal education — one that could mold not only the next generation of penal bureaucrats but also the change agents who will engage them and help to build new decarceral futures.  Or whether that curricular goal will simply result in yet another round of panels, symposia, and hashtags that merely scratch the surface.

August 23, 2021 in Purposes of Punishment and Sentencing, Recommended reading, Who Sentences | Permalink | Comments (1)

Thursday, August 19, 2021

"Individualizing Criminal Law’s Justice Judgments: Shortcomings in the Doctrines of Culpability, Mitigation, and Excuse"

The title of this post is the title of this new article on SSRN authored by Paul Robinson and Lindsay Holcomb. Here is its abstract:

In judging an offender’s culpability, mitigation, or excuse, there seems to be general agreement that it is appropriate for the criminal law to take into account such things as the offender’s youthfulness or her significantly low IQ.  There is even support for taking account of their distorted perceptions and reasoning induced by traumatic experiences, as in battered spouse syndrome.  On the other hand, there seems to be equally strong opposition to taking account of things such as racism or homophobia that played a role in bringing about the offense.  In between these two clear points, however, exists a large collection of individual offender characteristics and circumstances for which there is lack of clarity as to whether the criminal law should take them into account.  Should our assessment of an offender’s criminal liability be adjusted for their cultural background?  Their religious beliefs?  Their past life experiences?  The pedophilic tendencies they have always had but usually suppressed?

The question of how much to individualize the criminal liability judgment is not peripheral or unusual but rather common in a wide range of formal criminal law doctrines including, for example, the culpability requirements of recklessness and negligence, the mitigation of provocation and its more modern form of extreme emotional disturbance, and the excuse defenses of mistake as to a justification, duress, and involuntary intoxication.  Indeed, it turns out that the problem of individualizing factors is present, if often obscured, in all criminal law doctrines of culpability, mitigation, and excuse.

The Article reviews the appeal of criminal law adhering to a purely objective standard, where the problem of the individualizing factors is sought to be avoided altogether. But the resulting stream of injustices has forced most jurisdictions to adopt a partially individualized standard in some cases involving some doctrines.  But this leaves the jurisdiction’s criminal law in an awkward and unstable state.  Without a guiding principle for determining which individualizing factors are to be taken into account under what circumstances, the law is inevitably unprincipled and internally inconsistent. And without guidance, different decision-makers inevitably come to different conclusions in similar cases.  The Article proposes a solution to the individualizing factors puzzle and a statutory codification that would provide guidance in the adjudication of the many cases in which the issue arises.

August 19, 2021 in Offender Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Tuesday, August 17, 2021

“The Case for a Presidential Task Force on 21st Century Prosecution"

The title of this post is the title of this notable new white paper produced by Fair and Just Prosecution.  Here is its executive summary:

THE NEED FOR A PRESIDENTIAL TASK FORCE ON 21ST CENTURY PROSECUTION

The United States currently incarcerates its residents at the highest rate of any democratic country in the world.  This system of mass incarceration disproportionately impacts Black and brown Americans, disrupts communities, and bloats budgets, all while impeding the mission of public safety it purports to promote.  Prosecutors wield a vast amount of discretion and authority within the criminal legal system — and therefore share responsibility for those systemic failings — yet they also hold the power to bring about systemic transformation.  The Biden-Harris administration has a vital role to play in catalyzing innovation and helping prosecutors nationwide chart a path to greater justice and equity for their communities.  A new generation of local elected prosecutors are modeling that potential and are reimagining the role of prosecutors. We propose a Presidential Task Force on 21st Century Prosecution to build on — and help perpetuate — that movement.

PROPOSED FOCUS

Seventeen pillars would serve as the basis for a series of hearings and focus the Task Force’s work:

  • Understanding the historical legacy of the prosecutor
  • Promoting deflection, diversion, and shrinking the system
  • Advancing racial and ethnic justice
  • Addressing the poverty penalty and bail reform
  • Promoting harm reduction, saving lives, and drug policy reform
  • Misdemeanor justice
  • Better serving crime survivors
  • Understanding, preventing, and addressing violence
  • Juvenile and young adult justice
  • Preventing officer-involved shootings and enhancing police accountability
  • Improving conditions of confinement
  • Implementing post-conviction justice, fair sentencing, and sentencing review
  • Accounting for collateral consequences and promoting expungement
  • Addressing mass supervision and improving reentry
  • Envisioning success, metrics, and culture change
  • Ensuring ethics, accountability, and transparency
  • Propelling change and investing in transformation....

GOALS AND OUTCOMES

We recommend that the Task Force produce:
  • A final report that identifies successful prosecutorial reforms and innovation, lays out key challenges to implementing change, details promising practices, and offers specific and tangible goals paired with policy and program recommendations that could include improving the safety and well-being of our communities, dramatically reducing jail and prison populations, ending racial disparities, and enhancing transparency and accountability;
  • A strategic roadmap to incentivize and fund change and innovation, including by encouraging and enabling specific federal laws, policies, resources, and grants to help support and propel systemic transformation; and
  • A concrete implementation plan, including the creation of an implementation oversight group and ongoing technical assistance from key federal government bodies and leaders.

August 17, 2021 in Criminal justice in the Biden Administration, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

"Can Restorative Justice Conferencing Reduce Recidivism? Evidence From the Make-it-Right Program"

The title of this post is the title of this new NEBR working paper authored by Yotam Shem-Tov, Steven Raphael and Alissa Skog. Here is its abstract:

This paper studies the effect of a restorative justice intervention targeted at youth ages 13 to 17 facing felony charges of medium severity (e.g., burglary, assault).  Eligible youths were randomly assigned to participate in the Make-it-Right (MIR) restorative justice program or to a control group in which they faced criminal prosecution.  We estimate the effects of MIR on the likelihood that a youth will be rearrested in the four years following randomization.  Assignment to MIR reduces the likelihood of a rearrest within six months by 19 percentage points, a 44 percent reduction relative to the control group.  Moreover, the reduction in recidivism persists even four years after randomization.  Thus, our estimates show that juvenile restorative justice conferencing can reduce recidivism among youth charged with relatively serious offenses and can be an effective alternative to traditional criminal justice practices.

August 17, 2021 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Sunday, August 15, 2021

"Bridging the Gap: A Practitioner’s Guide to Harm Reduction in Drug Courts"

The title of this post is the title of this notable new report from the Center for Court Innovation and authored by Alejandra Garcia and David Lucas. Here is the first part of the report's introduction:

Drug law reforms across the country are trending toward decriminalization and public healthinformed responses, and away from the carceral strategies of the past. These historic changes are likely to impact drug court operations significantly. Fewer drug-related arrests means fewer referrals to drug courts, and a lighter hand in sentencing will reduce the legal leverage that has long been used to incentivize participation. The overdose crisis, COVID-19, and renewed demands for racial equity and legal system transformation have also given rise to a more expansive discourse around drug use, mental health, and community safety. Alongside this shift, harm reduction initiatives are being supported at the local, state and federal level on a scale never seen before.

At their inception, drug courts represented a new way of thinking about the intersection of addiction and crime in society. Offering a treatment alternative to jail or prison, the model aimed to address the harms — and ineffectiveness — of incarcerating drug users. Today, however, criminal legal system reformers are calling into question some of the model’s most defining features, which remain largely coercive and punitive. Moving forward, drug courts can expect to face increasing pressure from public health experts and harm reduction advocates to abandon the abstinence-only model, eliminate jail sanctions, and overhaul their drug testing protocols.

This document is an attempt to provide a fresh perspective on several foundational drug court practices and the inherent challenges of this work. It argues that the most effective way for drug courts to evolve — and do less harm — involves integrating the practices and principles of harm reduction. Drug courts and the harm reduction movement will continue to co-exist for some time and face similar system barriers while serving many of the same people. As such, this document represents a conversation that is new and necessary — one that aims to bridge the gap between these contrasting paradigms for the benefit of those who participate in drug courts.

August 15, 2021 in Criminal Sentences Alternatives, Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Saturday, August 14, 2021

Lots of deep thoughts for sentencing fans in Summer 2021 issue of New Criminal Law Review

The latest issue of the New Criminal Law Review is committed to "New Topics in Sentencing Theory."  Here are the articles in the issue:

"Editor’s IntroductionNew Topics in Sentencing Theory" by Jacob Bronsther

"Algorithmic Decision-Making When Humans Disagree on Ends" by Kiel Brennan-Marquez and Vincent Chiao

"The Limits of Retributivism" by Jacob Bronsther

"Prosecutor Mercy" by Lee Kovarsky

"After the CrimeRewarding Offenders’ Positive Post-Offense Conduct" by Paul H. Robinson and Muhammad Sarahne

"The Conventional Problem with Corporate Sentencing (and One Unconventional Solution)" by W. Robert Thomas

"Bringing People DownDegrading Treatment and Punishment" by John Vorhaus

August 14, 2021 in Purposes of Punishment and Sentencing, Recommended reading, Who Sentences | Permalink | Comments (1)

Friday, August 13, 2021

"Restorative Retributivism"

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

The current criminal justice moment is ripe for discussion of first principles.  What the criminal law is, what it should do, and why society punishes is as relevant as ever as communities reconsider the reach of the criminal law and forms of punishment like incarceration.  One theory recently put forth — reconstructivism — purports to offer a descriptive and normative theory of the criminal law and punishment while critiquing the ills of the American system.  It comprehends the criminal law and punishment as functional endeavors, with the particular goal of restitching or “reconstructing” the social fabric that crime disrupts.  In particular, reconstructivism is a social theory of the criminal law, prioritizing solidarity rather than a moral conception of the common good.  Drawing from a line of thinkers, from Aristotle to Hegel to Durkheim, reconstructivism claims to be distinctive and uniquely equipped to explain what the criminal law is and what it should do, as opposed to retributivist or utilitarian based theories.  It claims to more richly account for the social effects of punishment that plague the current system, unlike duty-based theories of retribution and the cold instrumentality underlying utilitarian-based punishment that has made criminal justice impersonal and shortsighted.

This Article critiques reconstructivism’s core claims and presents an alternative theory of punishment that contains insights for the current moment.  While reconstructivism critiques the failures of common punishment theories to account for the social nature and effects of punishment, it fails to account for forms of retributivism that are not deontological.  In particular, teleological retributivism, or more simply phrased, “restorative retributivism,” already contains the descriptively and normatively restorative elements present in reconstructivism.  Its conception of the common good rests on the inherently social nature of human affairs and accounts for the solidarity prioritized by reconstructivism.  Whereas the reconstructivist prioritizes the socially and culturally constituted, the restorative retributivist seeks to emphasize shared moral intuitions, which social realities inform, but not to the exclusion of other considerations.  This distinction has implications for how each theory might critique modern criminal law and punishment.  For example, restorative retributivism would view the expansion of the criminal law—both in terms of substance and administration — skeptically, and the modern approach to punishment — both in theory and its carceral form — as contrary to human dignity and too focused on controlling risk rather than promoting individual and social flourishing.  This critique, like reconstructivism, has much to offer in the era of the carceral state and can help to reorient punishment to the broader good.  It shifts the focus away from control and risk management to dignity and flourishing, leaving room for community involvement, humility in judging, and de-criminalization.  In sum, reconstructivism and restorative retributivism are relatives, and both helpfully emphasize the social implications and consequences of the criminal law and punishment.

August 13, 2021 in Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (0)

Thursday, August 12, 2021

Highlighting the persistent problems from the US's high recidivism rate

Liz Benecchi has this effective new piece at the Harvard Political Review under the headline "Recidivism Imprisons American Progress." I recommend the full piece, and here are excerpts:

Each year, more than 600,000 individuals are released from state and federal prisons. Another nine million are released from local jails.  Within three years of their release, two out of three former prisoners are rearrested and more than 50% are incarcerated again.  This process of previously convicted criminals reoffending and reentering the prison system is known as recidivism.

Recidivism clogs the criminal justice system. Without employment opportunities and bare necessities such as housing, food, or clothing, successful reentry into society seems nearly impossible for former prisoners.

America’s recidivism crisis is far more alarming than any other democratic country in a similar economic bracket.  If prison were teaching the “lessons” corrections workers claim it does, it is concerning that so many of the same prisoners end up back behind bars.  The country’s high recidivism rate alone demonstrates that our prisons are as ineffective as they are inefficient, a sobering reality which calls for a reimagined criminal justice system....

Since the 1960s, the U.S. incarceration rate has more than tripled. Defunding rehabilitation in our justice systems directly correlates with the increase in the incarceration rate.

To put it plainly, unhealthy minds can’t make healthy choices.  The reality is 37% of incarcerated individuals and 44% of those in jail have been diagnosed with a mental health illness.  Yet, 66% of prisoners reported not receiving any form of mental health care during the full length of their incarceration.  With more accessible mental health care and substance abuse recovery for prisoners, they can be properly diagnosed and receive comprehensive treatment.  With these revamped forms of relief and stabilization, the probability that those with mental illness relapse into destructive habits is far more unlikely than if they receive no treatment at all. Our justice system has an obligation to prepare prisoners for a safe and successful reintegration, a process which starts with a healthy mind.

Prisoners who participate in education programs have a 43% lower chance of being reincarcerated than those who do not, and for every dollar spent on prison education, the government saves four to five dollars on the costs of reincarceration. Education can do wonders, and if incarcerated people left the system with degrees and hard educational skills, it would be far less difficult for them to secure and maintain steady jobs. Besides allowing the formerly incarcerated to pursue a job, education — whether that be through adult literacy, GED, or post-secondary programs — inherently shapes one’s decision-making abilities....

When prisoners are released in Norway, they stay out of prison. Norway has one of the lowest recidivism rates in the world at 20%.  The U.S. has one of the highest: 76.6% of prisoners are rearrested within five years.  Among Norway’s prison population that was unemployed prior to their arrests, they saw a 40% increase in their employment rates once released.  The country attributes this to its mission of rehabilitation and reemergence into society through its accepting and empathetic approach....

Today’s recidivism crisis calls for a paradigm shift from prisons as punitive institutions to rehabilitative ones. Implementing the rehabilitating practices of prioritizing mental health care, education, and the process of creating a prison-to-work pipeline would lower the rates of recidivism in the United States. Lower rates of recidivism do not singularly benefit society by reducing the rate of crime but also by reducing prison populations, saving taxpayers’ dollars, and most pertinently, ensuring that prisons are serving their purpose of reform and improvement.

August 12, 2021 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (0)

Tuesday, July 27, 2021

"Just Algorithms: Using Science to Reduce Incarceration and Inform a Jurisprudence of Risk"

The title of this notable new forthcoming book authored by Christopher Slobogin.  It is also the title of this new SSRN posting which provides a preview of the book and an article that sets forth some of its contents. Here is the SSRN posting abstract:

Statistically-derived algorithms, adopted by many jurisdictions in an effort to identify the risk of reoffending posed by criminal defendants, have been lambasted as racist, de-humanizing, and antithetical to the foundational tenets of criminal justice.  Just Algorithms argues that these attacks are misguided and that, properly regulated, risk assessment tools can be a crucial means of safely and humanely dismantling our massive jail and prison complex.

The book explains how risk algorithms work, the types of legal questions they should answer, and the criteria for judging whether they do so in a way that minimizes bias and respects human dignity. It also shows how risk assessment instruments can provide leverage for curtailing draconian prison sentences and the plea-bargaining system that produces them.  The ultimate goal of the book is to develop the principles that should govern, in both the pretrial and sentencing settings, the criminal justice system's consideration of risk.  Table of Contents and Preface are provided, as well as a recent article that tracks closely two of the book's chapters.

July 27, 2021 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Technocorrections, Who Sentences | Permalink | Comments (0)

Thursday, July 22, 2021

"The Limits of Retributivism"

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

"Limiting retributivists” believe that the vagueness of retributive proportionality represents a moral opportunity.  They maintain that the state can permissibly harm an offender for the sake of crime prevention and other nonretributive goods, so long as the sentence resides within the broad range of retributively “not undeserved” punishments.  However, in this essay, I argue that retributivism can justify only the least harmful sentence within such a range.  To impose a sentence beyond this minimum would be cruel from a retributive perspective.  It would harm an offender to a greater degree without thereby increasing the realization of our retributivist ends.  Thus, if our nonretributive policy aims required a harsher sentence, the offender’s retributive desert could not provide the rationale, and we would need another theory that explains why, if at all, harming an offender as a means of realizing the desired nonretributive good is permissible.

July 22, 2021 in Purposes of Punishment and Sentencing | Permalink | Comments (0)

Monday, July 19, 2021

First Jan 6 rioter to be sentenced on felony charges gets (below-guideline) sentence of eight months in federal prison

As noted in this preview post on Friday, this morning was the scheduled sentencing day for Paul Allard Hodgkins, who carried a Trump flag into the well of the Senate during the January 6 riot at the Capitol.  Hodgkins' sentencing has been seen as particularly significant because he is the very first person to be sentenced on felony charges stemming from his actions on January 6 — one misdemeanor defendant has been sentenced to probation — and because Hodgkins' sentencing memo and the Government's sentencing memo made notable arguments as he sought probation and as the government urged an 18-month prison term (at the midpoint of the calculated guidelines range of 15 to 21 months).

This AP piece reports via its headline that the federal sentencing judge here did what often happens in these kinds of cases, namely he came quite close to splitting the difference: "Capitol rioter who breached Senate sentenced to 8 months."  Here are more details on this notable federal sentencing:

A Florida man who breached the U.S. Senate chamber carrying a Trump campaign flag was sentenced Monday to eight months behind bars, the first resolution for a felony case in the Capitol insurrection.

Paul Allard Hodgkins apologized and said he was ashamed of his actions on Jan 6. Speaking calmly from a prepared text, he described being caught up in the euphoria as he walked down Washington’s most famous avenue, then followed a crowd of hundreds up Capitol Hill and into the Capitol building. “If I had any idea that the protest … would escalate (the way) it did … I would never have ventured farther than the sidewalk of Pennsylvania Avenue,” Hodgkins told the judge. He added: “This was a foolish decision on my part.”

Prosecutors had asked for Hodgkins to serve 18 months behind bars, saying in a recent filing that he, “like each rioter, contributed to the collective threat to democracy” by forcing lawmakers to temporarily abandon their certification of Joe Biden’s 2020 election victory over President Donald Trump and to scramble for shelter from incoming mobs.

His sentencing could set the bar for punishments of hundreds of other defendants as they decide whether to accept plea deals or go to trial. He and others are accused of serious crimes but were not indicted, as some others were, for roles in larger conspiracies. Under an agreement with prosecutors, Hodgkins pleaded guilty last month to one count of obstructing an official proceeding, which carries a maximum 20-year prison sentence. In exchange, prosecutors agreed to drop lesser charges, including entering a restricted building and disorderly conduct.

Video footage shows Hodgkins wearing a Trump 2020 T-shirt, the flag flung over his shoulder and eye goggles around his neck, inside the Senate. He took a selfie with a self-described shaman in a horned helmet and other rioters on the dais behind him.

His lawyer pleaded with Judge Randolph Moss to spare his 38-year-old client time in prison, saying the shame that will attach to Hodgkins for the rest of his life should be factored in as punishment. The lawyer argued in court papers that Hodgkins’ actions weren’t markedly different from those of Anna Morgan Lloyd — other than Hodgkins stepping onto the Senate floor. The 49-year-old from Indiana was the first of roughly 500 arrested to be sentenced. She pleaded guilty to misdemeanor disorderly conduct and last month was sentenced to three years of probation.

Hodgkins was never accused of assaulting anyone or damaging property. And prosecutors said he deserves some leniency for taking responsibility almost immediately and pleading guilty to the obstruction charge. But they also noted how he boarded a bus in his hometown of Tampa bound for a Jan. 6 Trump rally carrying rope, protective goggles and latex gloves in a backpack — saying that demonstrated he came to Washington prepared for violence.

Prior related posts:

July 19, 2021 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (6)

NIJ releases new publication with "Guidelines for Post-Sentencing Risk Assessment"

Via this webpage, headed "Redesigning Risk and Need Assessment in Corrections," the National Institute of Justice discusses its notable new publication titled "Guidelines for Post-Sentencing Risk Assessment."  Here is how the webpage sets up the full publication:

Over the past several decades, the use of RNA in correctional systems has proliferated. Indeed, the vast majority of local, state, and federal correctional systems in the United States now use some type of RNA. Despite the numerous ways in which RNA instruments can improve correctional policy and practice, the kind of RNA currently used across much of the country has yet to live up to this promise because it is outdated, inefficient, and less effective than it should be.

In an effort to help the corrections field realize the full potential of RNA instruments, NIJ recently released Guidelines for Post-Sentencing Risk Assessment.  These guidelines, assembled by a trio of corrections researchers and practitioners, are built around four fundamental principles for the responsible and ethical use of RNAs: fairness, efficiency, effectiveness, and communication.  Each of these principles contributes to an innovative, practical checklist of steps practitioners can use to maximize the reliability and validity of RNA instruments.

Here is part of the executive summary from the full report:

Risk and needs assessment (RNA) tools are used within corrections to prospectively identify those who have a greater risk of offending, violating laws or rules of prison or jail, and/ or violating the conditions of community supervision.  Correctional authorities use RNA instruments to guide a host of decisions that are, to a large extent, intended to enhance public safety and make better use of scarce resources.  Despite the numerous ways in which RNA instruments can improve correctional policy and practice, the style and type of RNA currently used by much of the field has yet to live up to this promise because it is outdated, inefficient, and less effective than it should be.

In an effort to help the corrections field realize the potential that RNA instruments have for improving decision-making and reducing recidivism, we have drawn upon our collective wisdom and experience to identify four principles that are critical to the responsible and ethical use of RNAs.  Within each principle is a set of guidelines that, when applied in practice, would help maximize the reliability and validity of RNA instruments.  Because these guidelines comprise novel, evidence-based practices and procedures, the recommendations we propose in this paper are relatively innovative, at least for the field of corrections.

■ The first principle, fairness, holds that RNA tools should be used to yield more equitable outcomes. When assessments are designed, efforts should be taken to eliminate or minimize potential sources of bias, which will mitigate racial and ethnic disparities. Preprocessing, in-processing, and post-processing adjustments are design strategies that can help minimize bias. Disparities can also be reduced through the way in which practitioners use RNAs, such as delivering more programming resources to those who need it the most (the risk principle). Collectively, this provides correctional agencies with a strategy for achieving better and more equitable outcomes.

■  The second principle, efficiency, indicates that RNA instruments should rely on processes that promote reliability, expand assessment capacity, and do not burden staff resources. The vast majority of RNAs rely on time-consuming, cumbersome processes that mimic paper and pencil instruments; that is, they are forms to be completed and then manually scored by staff. The efficiency of RNA tools can be improved by adopting automated and computer-assisted scoring processes to increase reliability, validity, and assessment capacity. If RNA tools must be scored manually, then inter-rater reliability assessments must be carried out to ensure adequate consistency in scoring among staff.

■  RNA instruments should not only be fair and efficient, but they should also be effective, which is the third key principle. The degree to which RNA instruments are effective depends largely on their predictive validity and how the tool is used within an agency. Machine learning algorithms often help increase predictive accuracy, although developers should test multiple algorithms to determine which one performs the best. RNA tools that are customized to the correctional population on which they are used will deliver better predictive performance.

■  Finally, it is important to focus on the implementation and use of RNAs so that individuals can become increasingly aware of their risk factors. To this end, the fourth key principle is to employ strategies that improve risk communication. Training the correctional staff who will be using the RNA tool is essential for effective communication, particularly in how to explain the needs and translate it into a case plan. A risk communication system, which includes case plan improvement, treatment-matching algorithms, and graduated sanctions and incentives, provides an integrated model for decision-making that helps increase an individual’s awareness of their own circumstances and need for programming.

July 19, 2021 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Technocorrections, Who Sentences | Permalink | Comments (0)

Friday, July 16, 2021

Feds advocate for (mid-guideline) prison term of 18 months for first Jan 6 defendant due to be sentenced on felony charge

As noted in this Washington Post piece, a notable federal sentencing is scheduled for Monday and federal prosecutors have a notable sentencing recommendation for the judge: "U.S. prosecutors on Wednesday urged a federal judge to impose an 18-month prison term on the first defendant to face sentencing for a felony in the Jan. 6 Capitol breach, citing the need to deter domestic terrorism."  Here is more:

“The need to deter others is especially strong in cases involving domestic terrorism, which the breach of the Capitol certainly was,” Special Assistant U.S. Attorney Mona Sedky said in a government sentencing request for Tampa crane operator Paul Allard Hodgkins, 38, who carried a Trump flag into the well of the Senate....

Hodgkins’s sentencing, scheduled for Monday, could set the bar for what punishment 100 or more defendants might expect to face as they weigh whether to accept plea offers by prosecutors or take their chances at a trial by jury.  About 800 people entered the building, U.S. officials have said, with more than 500 individuals charged to date and charges expected against at least 100 others.  About 20 people have pleaded guilty, and one misdemeanor defendant has been sentenced to probation.

In Hodgkins’s case, Sedky cited FBI Director Christopher A. Wray’s testimony in March to the Senate that the problem of homegrown violent extremism is “metastasizing,” with some actors growing emboldened by the Capitol riot....  Sedky also asked U.S. District Judge Randolph D. Moss of Washington to recognize prior court findings that though individuals convicted of such behavior may have no criminal history, their beliefs make them “unique among criminals in the likelihood of recidivism.”

Hodgkins pleaded guilty on June 2 to one felony count of entering the Capitol to obstruct Congress, a common charge being used by prosecutors.  Unlike other defendants, he was not accused of other wrongdoing or involvement with extremist groups, nor did he enter a cooperation deal with prosecutors.  Under advisory federal guidelines, he could face a prison sentence of 15 to 21 months.

Hodgkins poses an intriguing example for defendants against whom prosecutors have threatened to seek enhanced domestic terrorism penalties, lawyers said.  Such enhancements, if found to apply, could more than double a defendant’s guidelines range or otherwise increase recommended penalties, although judges would have the final say. In Hodgkins’s case, prosecutors did not ask the judge to apply the enhancement, even though they wrote Wednesday that his conduct met the definition of violence “calculated to influence or affect the conduct of government by intimidation or coercion.”  Instead, prosecutors said a “midpoint” sentence in Hodgkins’s existing range was appropriate, but still urged Moss to consider the importance of dissuading future acts of domestic terrorism.

Hodgkins has asked for a below-guidelines sentence of probation.  His attorney urged Moss to follow the example of President Abraham Lincoln’s planned approach to the defeated South after the Civil War, before he was assassinated.  “Today, this Court has a chance to make a difference,” Tampa attorney Patrick N. Leduc wrote, asserting that America now is “as divided as it was in the 1850s” on racial and regional lines.  “We have the chance to be as Lincoln had hoped, to exercise grace and charity, and to restore healing for those who seek forgiveness. Alternatively, we can follow the mistakes of our past: to be harsh, seek vengeance, retribution, and revenge, and continue to watch the nation go down its present regrettable path,” Leduc said.

Lawyers familiar with the Capitol probe have said the case illustrates how prosecutors are taking a carrot-and-stick approach in plea talks, threatening to hit some defendants with tougher sentencing guidelines calculations while showing some flexibility for those not accused of any violent conduct in a bid to resolve cases short of trial.

For example, another Jan. 6 defendant pleaded guilty Wednesday to the identical charge as Hodgkins. However, Josiah Colt, 34, of Idaho, faced a sentencing guidelines range three times as high, 51 to 63 months, after admitting that he came armed to Washington and was with others accused of violently interfering with police. Colt, however, entered a cooperation deal, implicating two men he was with in plea papers and agreeing to aid investigators in exchange for a recommendation of leniency.

Several defense attorneys in the probe privately called prosecutors’ tactics draconian in some cases, saying they are threatening years of prison time for individuals not charged with violence and giving them little choice but to face trial.

The Post has also helpfully provided links to Hodgkins' sentencing memo and the Government's sentencing memo.  They both make for interesting reads.  And, as always, I welcome reader views on how they think the 3553(a) factors ought to play out in sentencing in this high-profile case.

Prior related posts:

July 16, 2021 in Booker in district courts, Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (1)

Tuesday, July 13, 2021

Interesting (but unclear) local report on federal sentencings in NYC impacted by COVID realities

The New York Daily News has this interesting (but less-than-clear) article discussing some federal sentencing issues under the headline "Brutal conditions in NYC jails during COVID pandemic caused federal judges to impose lighter sentences: analysis."  Here are excerpts:

Federal judges handed down dozens of lighter sentences due to brutal conditions in New York City’s federal jails during the coronavirus pandemic, new statistics obtained by the Daily News show.

A Daily News analysis of 43 cases involving people who could not afford their own attorneys shows that judges in Manhattan and Brooklyn federal courts imposed sentences that were on average 58% lower than what federal guidelines recommended.  In nearly all of the cases, judges either cited coronavirus conditions behind bars in their sentences, or attorneys emphasized the conditions in legal briefs.

In one case in July 2020, Judge Paul Engelmayer noted that punishment for Juan Carlos Aracena De Jesus’ illegal reentry into the U.S. after being deported was never supposed to include catching coronavirus. “I am mindful ... that you have served most of your time in prison so far during the worst pandemic in this country during the past 100 years,” Engelmayer said. “I’m mindful that your experience in prison as a result of the pandemic, the preceding lockdown, the ensuing lockdown, and your own illness was frightful. Prison is supposed to be punishment, but it is not supposed to be trauma of that nature or close.” While the sentence guidelines in the case was for 30-37 months, Engelmayer sentenced Aracena to time served.  He had spent six months at the Metropolitan Correctional Center in Manhattan.

Judge Paul Oetken went so far as to come up with a formula for how much credit inmates should receive toward a sentence if they were behind bars during the pandemic. “I do believe that because it’s been harsher than a usual period that it’s more punitive, that it’s essentially the equivalent of either time and a half or two times what would ordinarily be served,” Oetken said on April 2 while sentencing a low-level crack dealer.  The sentence amounted to time served for the dealer, Daniel Gonzalez, who said he has a recurring foot infection due to unsanitary showers at MCC.

In all the cases, COVID was not the sole factor judges used to determine sentences.  Judges also considered an inmate’s health, the nature of the crime and other factors.  For Victor Marmolejo, 47, the risk of deadly consequences from his diabetes resulted in him receiving an 18-month sentence when prosecutors had asked for up to four years....

Lawsuits have alleged that coronavirus ravaged the MCC in Manhattan and the Metropolitan Detention Center in Brooklyn and that staff failed to implement commonsense preventative measures. Inmates, meanwhile, were kept in lockdown and had limited or no access to family and their attorneys.  Judges have become unusually outspoken about problems at the MCC and MDC since the pandemic began....

The head of the Federal Defenders in Brooklyn, Deirdre Von Dornum, said the cases where incarcerated pretrial detainees received shorter-than-guidelines sentences based on medical and jail conditions were “far more” than they usually get.  “COVID-19 did not change the sentencing calculus.  Consistent with governing sentencing law, judges have always taken medical conditions and medical risks into account.  What changed was the breadth and depth of this medical crisis and the clear inability of MDC and MCC to protect those in their custody and care who had pre-existing medical conditions,” Von Dornum said.

I am not at all surprised to hear accounts of federal judges taking COVID-related matter into account at sentencing.  Indeed, the instructions Congress has set forth for sentencing judges in 18 USC § 3553(a) really mandates consideration of factors that COVID realities can impact in various ways.  So, what is most notable and important is not just how, but really how much, judicial sentencing decision-making is being impacted by COVID matters.

Unfortunately, this Daily News report, which the article describes as an "analysis of 43 cases involving people who could not afford their own attorneys" in Manhattan and Brooklyn federal courts, is too opaque to provide a clear picture of COVID-era sentencing realities.  During the COVID era, there have probably more than 1000 cases sentenced in Manhattan and Brooklyn federal courts, so the 43 cases analyzed by the Daily News are likely not truly representative.  Moreover, even before COVID, judges in the Eastern and Southern Districts of New York typically imposed within-guideline sentences in only about 25% of all cases.  So lots of below-guideline sentences for lots of reasons was the norm even before COVID.

That all said, the impact of COVID on sentencing practices presents critical and hard questions that I am pleased to see this local newspaper discuss.  I hope more media, as well as federal agencies and academics and many others, will keep seeking to explore these important issues.

July 13, 2021 in Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

"Promoting Proportionality Through Sentencing Guidelines"

The title of this post is the title of this short new paper authored by Julian V. Roberts now available via SSRN.  Here is its abstract:

This paper explores the ways that sentencing guidelines, properly constructed, can promote proportionality at sentencing.  The essay uses the sentencing guidelines created in England and Wales to illustrate the potential benefits, and challenges, associated with this method of structuring judicial discretion at sentencing. 

July 13, 2021 in Purposes of Punishment and Sentencing, Sentencing around the world | Permalink | Comments (0)

Friday, July 09, 2021

"Safety, Crisis, and Criminal Law"

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

Concepts of safety and prevention of danger pervade the criminal law canon.  Arizona is no exception.  The state’s criminal systems pivot around central and entwined goals of protecting public safety and preventing danger.  The state constitution permits pretrial detention both for the most serious offenses and when no other condition of release will adequately protect the community from the danger the accused’s freedom might pose.  The rules of criminal procedure and the criminal code designate some offenses and actors “dangerous” and urge judges to weigh not only the accused’s risk of flight, but also his future dangerousness in making decisions to release or detain pretrial.  On the other end of the criminal law continuum, post-conviction considerations follow suit. Arizona’s sentencing guidelines permit enhancements of the ordinary term of imprisonment in the face of dangerousness.

None of this is unusual or surprising.  Criminal law has long claimed the joined realms of safety and protection as its own. The narrative of these concepts, however, is deceptively complex.  Despite their historical centrality to criminal law, the precise meaning of these terms remains elusive.  Who warrants protection and how that protection is realized is obscure; — its precise calculation a mystery.  Likewise, outside of designating some crimes or actors dangerous, the code and rules define safety or the prevention of danger not by what they are, but by what they are not.  The task of crafting a more precise definition of safety or protection is left to discretionary decision-makers, who in an effort to lend meaning to the written law layer it with acts of application and interpretation.  These discretionary moments matter, not only because they animate the law, but because they occur with far greater frequency than other moments of law creation. Legislation occurs infrequently and seeks to establish baseline policies that are, by their nature, sufficiently general to apply broadly. In contrast, discretionary moments of policing, prosecuting, or judging, happen in the lived trenches and represent moments of contact between the governed and the governing.  For their part, those who live under the law — informal actors — may enjoy moments of discretionary decision-making when they vote as citizens or jurors, though these may be limited, literally and figuratively.  This uses lessons from the COVID-19 pandemic and the response to George Floyd’s death to re-imagine these discretionary moments.

July 9, 2021 in Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (1)

Thursday, July 08, 2021

AGAIN: You be the judge: what sentence for Michael Avenatti (and do the guidelines merit any respect)?

IA3T7J6NQRFSHDKM6SW26QQ5JAUP AGAIN:  I posted this discussion of a notable scheduled sentencing last month just before Michael Avenatti secured a short postponement.  This new Wall Street Journal article, headlined "Michael Avenatti Faces Sentencing for Trying to Extort Millions From Nike," provides an updated review of this high-profile federal sentencing now scheduled for today.  In addition to the prior posting, folks may want to check out the interesting comments from various folks that it generated last month.

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It has been a while since I have done a "you be the sentencing judge" post, but a high-profile fallen lawyer provides juicy grist for this mill.  Specifically, as two recent postings at Law & Crime highlight, Michael Avenatti's upcoming sentencing presents a notable set of facts and arguments for SDNY US District Judge Paul Gardephe:

Michael Avenatti Seeks Light Prison Sentence Because His ‘Epic Fall and Public Shaming’ Are Punishment Enough

Feds Seek ‘Very Substantial’ Prison Term for Disgraced Lawyer Michael Avenatti

Valuably, these two postings include the extended sentencing memoranda filed by the parties in this case, and the second posting summarizes the terms of the sentencing debate (with some of my emphasis added):

Scoffing at the one-time celebrity lawyer’s claim that his “epic fall and public shaming” should be taken into account at sentencing, federal prosecutors urged a judge to deal Michael Avenatti a “very substantial” prison sentence for attempting to extort Nike out of millions of dollars by threatening to expose their corruption scandal.

Quoting the probation office, prosecutors noted that Avenatti “often put himself forth as a champion for the Davids of the world, facing off with those Goliaths who would bully the small, the weak, the victimized.”

“And it was precisely this reputation, and the enormous influence that the defendant wielded on the national stage and across media platforms, that he weaponized,” Assistant U.S. Attorney Matthew Podolsky wrote in a 19-page sentencing brief on Wednesday night. “He used his skills as a lawyer and his power as a media figure not to benefit his client, but instead to threaten harm in an effort to extract millions of dollars from a victim, which, while sophisticated, [Avenatti] believed would be forced into acquiescing secretly to his demands.”

Once a fixture of the cable TV commentary rounds, Avenatti previously depicted his prosecution as another David-versus-Goliath fight, pitting him against the combined might of the Nike corporation and the Trump administration. Southern District of New York prosecutors rejected that, and a federal jury convicted him on all counts in February 2020.

Earlier this month, Avenatti’s defense attorneys Scott A. Srebnick and E. Danya Perry argued that a six-month maximum sentence would be enough for their client. They also said the court could take “judicial notice” that Avenatti’s well-documented “epic fall […] played out in front of the entire world.” Federal prosecutors found that sort of sentence would be far too light, and though they did not propose another number, their sentencing memorandum leaves a few clues into their thinking.

The probation office proposed an eight-year sentence, which dips below the 11.25-to-14-year guideline range.  “While the government, like the probation office, believes that a below-guidelines sentence would be sufficient but not greater than necessary to serve the legitimate purposes of sentencing, the government asks this court to impose a very substantial sentence,” prosecutors wrote....

During the trial, prosecutors played a tape for jurors that they called a picture of extortion. “I’ll go take $10 billion off your client’s market cap,” Avenatti was seen warning attorneys for Nike in the videotape, referring to capitalization. As the jury found, Avenatti had been talking about confidential information he learned about Nike from his former client Gary Franklin, an amateur basketball coach.  Avenatti threatened to expose the embarrassing information relating to the corruption scandal unless the Nike paid $15 million—”not to Franklin, but directly to the [Avenatti] himself,” prosecutors noted. According to the memo, the deal represented 10 times more than Avenatti asked Nike to pay Franklin, and it would have resolved his client’s claims against Nike....

Franklin wrote separately to the U.S. District Judge Paul Gardephe harshly criticizing Avenatti. “Mr. Avenatti quickly abused that trust when he announced on Twitter, without my knowledge and without my consent, that he would be holding a press conference to discuss a scandal at Nike that ‘involved some of the biggest names in college basketball,'” Franklin wrote in a two-page victim impact statement. “I never imagined that Mr. Avenatti would proceed to post on Twitter details of the information I had relayed to him as part of our attorney-client privileged discussions, including the names of the players I coached.

Franklin is not alone among Avenatti’s spurned former clients. Avenatti continues to face another federal prosecution in New York accusing him of defrauding Stormy Daniels in a book deal, plus a case in California alleging tax offenses and other misconduct.

There are so many elements to both the Avenatti crime and his background that may (or many not) be considered important in his upcoming sentencing.  But, as my post title and emphasis seek to highlight, there is seemingly a consensus that the federal sentencing guidelines come nowhere close to recommending a proper sentence.  It is, of course, not especially surprising when a criminal defendant requests a sentence way below the applicable guideline range.  But here, notably, both the probation office and seemingly federal prosecutors also believe a proper sentence should be many years below the bottom of the applicable guideline range.

So I sincerely wonder, dear readers, what sentence you think would be, in the words of the prosecutors, "sufficient but not greater than necessary to serve the legitimate purposes of sentencing"?  Do the guideline merit any respect in this analysis?

July 8, 2021 in Celebrity sentencings, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (11)

Tuesday, July 06, 2021

"The Revelatory Nature of COVID-19 Compassionate Release in an Age of Mass Incarceration, Crime Victim Rights, and Mental Health Reform"

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

The crime victim rights movement and mass incarceration grew side-by-side in the United States, and in many ways they deal with similar questions about the purposes, benefits, and effectiveness of the criminal justice system.  The COVID-19 worldwide pandemic in 2020 tested the value attributed to retribution, rehabilitation, and other criminal justice goals in sentencing and incarceration.  Specifically, the First Step Act of 2018 enhanced discretionary compassionate release from prison due to illness and disability, requiring a post-sentencing balance of interests between perceived risks to the prisoner while in prison and risks to the public if release were granted.  Early COVID-19 compassionate release decisions reveal that courts continue to base early release decisions primarily on an assessment of public safety risk from crime, not community impact, crime victim impact, or even prisoner health.  In so doing, judges and prosecutors usurp and marginalize the role of the community and those most affected by crime.

July 6, 2021 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Victims' Rights At Sentencing | Permalink | Comments (0)

Thursday, July 01, 2021

Hoping grandmothers and others on home confinement get compassionate consideration

In prior posts (some linked below), I have discussed the Office of Legal Counsel memo which interprets federal law to require that certain persons transferred to home confinement pursuant to the CARES Act be returned to federal prison when the pandemic ends.  There has been particular advocacy directed toward Prez Biden urging him to use his clemency powers to keep these persons from being returned to federal prison, and I have recently argued Congress could and should address this matter with a statutory fix.  But, critically, judges also might be able to grant relief on a case-by-case basis via sentence reduction motions under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A).

One person at risk of serving many more years in prison after success on home confinement, Gwen Levi, is getting particular attention because she seems like low-risk person who has already been re-incarcerated on the basis of a seemingly minor technical violation.  Here are just some of the stories discussing her plight:  

From The Root, " 76-Year-Old Black Woman Released From Prison Amid Pandemic, Sent Back for Missing Phone Calls While Taking a Class"

extraordinary and compelling reasonsFrom USA Today, "'Scared and confused': Elderly inmate sent home during COVID is back in prison after going to computer class"

From the Washington Post, "A grandmother didn’t answer her phone during a class. She was sent back to prison."

Upon hearing about this story, I expressed on Twitter my hope that Gwen Levi was pursuing a compassionate release motion.  Kevin Ring of FAMM informed me not only that she was, but also that he had submitted a letter in support of her effort to secure a sentence reduction.  Kevin recently sent me a copy of this letter and has allowed me to post it here:

Download ECF 2079 Kevin Ring letter in support of comp. release

Though I do not know all the facts surrounding the crimes and current circumstances of Gwen Levi and the 4000 other persons on home confinement at risk of going back into federal prison, I do know that these situations certainly seem to present "extraordinary and compelling reasons" to consider whether further prison time is needed.  

Some prior recent related posts:

July 1, 2021 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Wednesday, June 30, 2021

The Sentencing Project releases "A New Lease on Life" looking at release mechanisms and recidivism realities

Images (3)The Sentencing Project today released this timely new report titled "A New Lease on Life" which starts with these "Findings and Recommendations":

A dramatic consequence of America’s investment in mass incarceration is life imprisonment.  Today there are more people serving life sentences alone than the entire prison population in 1970, the dawn of the mass incarceration era.  Though life sentences have always been allowable in the U.S., it is only in recent decades that these sentences have become normalized to such an extent that entire prisons are now filled or nearly filled with people serving life terms.

Despite a cultural tendency for Americans to view the U.S. crime and criminal legal system as “exceptional,” other countries have experienced ebbs and flows in crime rates but have not resorted to the levels of imprisonment, nor the lengths of prison sentences, that are commonplace in the U.S.  To the contrary, restoration of human dignity and the development of resilience are at the core of an evolved criminal legal system; systems elsewhere that emphasize the responsibility of government support to returning citizens serves as a model for the U.S.

In this report we set out to accomplish two tasks.  First, we examine reoffending rates among people released from prison after a violent crime conviction and review research on the topic, covering both domestic and international findings.  Second, we provide personal testimony from people who have left prison after a violent crime conviction.  Inviting impacted persons to share their transition experiences serves policymakers and practitioners in strengthening necessary support for successful and satisfying reentry from prison. This report focuses on the outcomes of a narrow segment of the prison population: people convicted of violent crimes, including those sentenced to life and virtual life sentences, who have been released to the community through parole or executive clemency.  People with violent crime convictions comprise half the overall state prison population in the U.S. They are depicted as the most dangerous if released, but ample evidence refutes this.

Findings

• We can safely release people from prison who have been convicted of violent crime much sooner than we typically do. Most people who commit homicide are unlikely to do so again and overall rates of violent offending of any type among people released from a life sentence are rare.

• Definitional limitations of the term “recidivism” obstruct a thorough understanding of the true incidence of violent offending among those released from prison, contributing to inaccurate estimates of reoffending.

• People exiting prison from long term confinement need stronger support around them. Many people exhibit a low crime risk but have high psychological, financial, and vocational demands that have been greatly exacerbated by their lengthy incarceration.

• People exiting prison after serving extreme sentences are eager to earn their release and demonstrate their capacity to contribute in positive ways to society. Prison staff and peers view lifers as a stabilizing force in the prison environment, often mentoring younger prisoners and serving as positive role models.

We make five recommendations that, if adopted, will advance our criminal legal system toward one that is fair, efficient, and humane.

1. Standardize definitions of recidivism. Authors of government reports and academic studies should take great care to standardize the definition of criminal recidivism so that practitioners, policymakers, the media, and other consumers of recidivism research do not carelessly interpret findings on reoffending statistics without digging into either the meaning or the accuracy of the statements.

2. Insist on responsible and accurate media coverage. Media consumers and producers alike must insist on accurate portrayals of crime despite the temptation to skew media coverage so that rare violent crime events appear as commonplace. Heavily skewed media coverage of rare violent crime events creates a misleading view of the frequency of violent crime. Add to this the overly simplistic assumption, allowed by inarticulate reporting, that people released from prison have caused upticks in violence.

3. Allow some level of risk. Reset the acceptable recidivism rate to allow for reasonable public safety risk. The public’s risk expectation is currently set at zero, meaning that no amount of recidivism is politically acceptable in a system that “works” even though such expectations are not attainable in any sphere of human endeavor or experience. But this expectation is largely based on highly tragic and sensationalized events that are falsely equated as the result of releasing people from prison. We have to balance our aspirations for a crime-free society with reasonable approaches to public safety and human rights considerations for both those who have caused harm and those who have been victimized by it.

4. Reform and accelerate prison release mechanisms. Decisionmakers considering whether to grant prison release rely too heavily on the crime of conviction as the predominant factor under consideration. This approach is neither fair nor accurate. It is unfair because it repunishes the individual for a crime for which they have already been sanctioned. Risk of criminal conduct, even violent criminal conduct, closely tracks aging such that as people age into adulthood there is a sharp decline in proclivity to engage in additional acts of violence.

5. Substantially improve housing support. Inability to secure housing after release from prison was mentioned frequently by people we interviewed for this report. Failure of the correctional system to ensure stable housing upon exit from decades-long prison sentences imposes unnecessary challenges. Though some released persons will be able to rely on nonprofit charity organizations, shelters, or family, the most vulnerable people will fall through the cracks. We have both a public safety and a humanitarian obligation to avoid this result.

June 30, 2021 in Offender Characteristics, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0)

Sunday, June 27, 2021

Why aren't there much stronger calls for CONGRESS to fix post-pandemic home confinement problems?

In many prior posts (some linked below), I have discussed the Office of Legal Counsel memo released at the end of the Trump Administration which interprets federal law to require that certain persons transferred to home confinement pursuant to the CARES Act be returned to federal prison when the pandemic ends.  I see that there are two more notable new press articles on this topic:

From The Hill, "Biden faces criticism for not extending home confinement for prisoners"

From the Washington Post, "A grandmother didn’t answer her phone during a class. She was sent back to prison."

The somewhat scattered Post article focuses on persons sent from home confinement back into federal prison for minor technical violations while also noting that the Biden Administration could seek to rescind the OLC memo or use clemency powers to keep folks home after the pandemic is deemed over.  The lengthy Hill article is more focused on the political discussion around this issue, but my post title reflects my growing frustration with this discourse.  Here are excerpts:

President Biden is under fire for not announcing an extension of a home confinement program for prisoners that was started during the coronavirus pandemic.  Progressives and criminal justice advocates have pressured the administration for months to rescind a Trump-era policy that kills the program when the pandemic ends.  They are frustrated that Biden's remarks this week didn’t address it....

Rep. Bonnie Watson Coleman (D-N.J.), who led a letter of 28 House Democrats in April calling for the policy to be rescinded, “is disappointed he hasn’t officially extended the home confinement program,” a spokesperson said....

The home confinement program during the coronavirus pandemic was launched in response to the CARES Act in March and directed the federal Bureau of Prisons to prioritize home confinement for certain inmates in an effort to limit the spread of the coronavirus.  Roughly 24,000 inmates since have been sent to home confinement.

In the final days of the Trump administration, the Justice Department's Office of Legal Counsel issued a memo stating that under federal law, those inmates released under the CARES Act must report back to prison when the coronavirus emergency is over, unless they are nearing the end of their sentence.  Biden and Attorney General Merrick Garland could rescind that policy....

Advocates also argue that those inmates transferred to home confinement have been monitored and largely have not violated the conditions of their situation. “If they’re so low risk and they haven’t violated the conditions, it’s hard to imagine any reason why they should be sent back,” said Maria Morris, senior staff attorney at the ACLU National Prison Project, adding that it would be a “ridiculous waste of resources.”

Many of the inmates placed in home confinement are elderly or in a vulnerable situation due to COVID-19, which posed a threat to them if they stayed inside a prison.  [Holly] Harris calls it “bad government” to send those inmates back to prisons. “At this point, the president just needs to grant them clemency and let them move on.  They are out because the Trump Administration felt it was safe enough to let them go home.  What more cover does he need?” she said.

I agree entirely with advocates saying it would be "bad government" and a "ridiculous waste of resources" to send back to prison thousands of vulnerable people who have been successful serving their sentences at home during the pandemic.  But I do not think it entirely right to describe the OLC memo as a "Trump-era policy" that is readily changed by the Biden Administration.  The OLC memo is not really a "policy" document; it is an elaborate interpretation of how the CARES Act alters BOP authority to place and keep persons in home confinement.  Though the OLC statutory interpretation requiring a return of persons to federal prison is debatable, the fact that this interpretation of the CARES Act amounts to bad policy does not itself give the Biden Administration a basis to just ignore statutory law.

Of course, statutory law notwithstanding, Prez Biden could (and I think should) use his clemency authority to extended home confinement for those at risk of being sent back to federal prison post-pandemic.  But if members of Congress are "disappointed" that the home confinement program is not being extended, they should amend the CARES Act to do exactly that with an express statutory provision!  This difficult issue stems from the text of the CARES Act; if the statutory text Congress passed when COVID first hit now is clearly operating to creates wasteful, bad government, Congress can and should fix that statutory text.  Put simply, this matter is a statutory problem that calls for a statutory fix. 

I surmise that advocates (not unreasonably) assume that getting a gridlocked Congress to "fix" this CARES Act home confinement problem through statutory reform is much less likely than achieving some other fix through executive action.  But, as I see it, exclusive focus on executive action to fix what is fundamentally a statutory problem itself contributes to legislative gridlock.  Indeed, I am more inclined to criticize the Biden Administration for not urging Congress to fix this CARES Act problem, especially because the notable success of home confinement policies during the pandemic could and should justify statutory reforms to even more broadly authorize ever greater use of home confinement in "normal" times.

Notably, three sentencing-related bill made their way through the Senate Judiciary Committee earlier this month (basics here).  Because I am not an expert on either legislative procedure or inside-the-Beltway politics, I do not know if it would be easy or impossible to include add "home confinement fix" to one of these bills.  But I do know that I will always want to believe that Congress at least has the potential to fix problems of its own creation.  But, as this post is meant to stress, I think it important not too lose sight of the fact that this is a fundamentally a congressional problem, not a presidential one.      

Some prior recent related posts:

UPDATE:  Achieving a media troika, the New York Times also published this lengthy article on this topic under the headline "Thousands of Prisoners Were Sent Home Because of Covid. They Don’t Want to Go Back."  Like the Post article, this piece is a bit scattered in its focus while also directing most of the attention on the Justice Department and Biden Administration rather than highlighting Congress's critical role in this story.  This passage is especially notable:

Changing the prison system is one of the few areas that has drawn bipartisanship agreement in Washington. Senator Charles E. Grassley, Republican of Iowa, joined Democrats in criticizing the Justice Department memo, which was issued in January.

“Obviously if they can stay where they are, it’s going to save the taxpayers a lot of money,” Mr. Grassley said at the hearing [before the Senate Judiciary Committee in April]. “It will also help people who aren’t prone to reoffend and allows inmates to successfully re-enter society as productive citizens.”

The next sentence of this article, if it were telling the full story, should at the very least note that Congress could "fix" the OLC memo through a simple statutory change. I agree with Senator Grassley that it would be wrong to send all these folks back to prison after they have done well on home confinement, and so I think Senator Grassley should get together with his pals on the Capital Hill and pass a statute to that the law no longer could be interpreted to require sending them all back to prison at taxpayer expense.

June 27, 2021 in Clemency and Pardons, Criminal justice in the Biden Administration, Criminal justice in the Trump Administration, Impact of the coronavirus on criminal justice, Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, June 24, 2021

Lovely lengthy account of "Restoring Justice"

The latest issue of Harvard Magazine has this lengthy feature article on restorative justice titled "Restoring Justice:Exploring an alternative to crime and punishment." The piece is worth making time to read in full, and here are some excerpts:

To date, 45 states have passed laws permitting the use of restorative justice in at least some criminal cases.  Programs typically function in one of three ways: as a form of diversion from the criminal process, allowing offenders — especially young or first-time offenders — to avoid charges and a conviction; as a form of alternative sentencing; or, in more serious cases, as a way to reduce a criminal sentence.  The program [Armand] Coleman and [Emmanual] Williams took part in was a fourth kind: initiated years after their convictions, it did not influence the men’s sentences or release dates, but its deeper purpose was the same — to help participants take responsibility for their wrongdoing and understand themselves better, and, to the extent possible, “make things right,” as Coleman put it....

In recent decades, numerous restorative-justice programs have sprung into existence.  A few operate entirely outside the legal system, without ever involving any authorities; others work with local police departments and district attorneys’ offices. Methodologies vary from place to place, too — making it more difficult to assess the effectiveness of the underlying concept: most analyses have focused on juvenile and first-time offenders.  But recent rigorous, randomized studies find that restorative justice typically does a modestly better job at reducing recidivism than the court system — resulting in anywhere from 7 percent to 45 percent fewer repeat arrests or convictions, depending on the study parameters. One 2015 analysis found that this effect was actually most pronounced for violent offenses and adult offenders.

Crime victims also consistently appear to be more satisfied after a restorative-justice process than after a traditional criminal one — sometimes dramatically so (in a 2017 study of its own work, Impact Justice found that 91 percent of victims said they’d recommend the process to a friend and 88 percent said the repair plan adopted by the group addressed their needs).  Surveys show that while people who have survived a crime want to feel safe, many of them also prefer rehabilitation for the perpetrators, rather than long periods of incarceration.  Researchers find that victims often perceive restorative dialogues to be fairer and more responsive to their needs and wishes.  One 2013 study of face-to-face meetings between victims and offenders found a marked decrease in victims’ post-traumatic stress symptoms and in their desire for revenge.  A multiyear randomized study in Australia found that victims of violent crime who went to court were five times more likely to believe they would be re-victimized by the offender, while those who went through a restorative process felt more secure and achieved a greater sense of closure.

Adriaan Lanni points to such findings in her argument in favor of restorative justice, but says even they fall short of the full picture. For several years, she has volunteered as a case coordinator for a Concord-based program, and has seen firsthand what happens in those conversations.  “I think you lose a lot if you just look at the quantitative analysis, like, ‘Give me the recidivism number,’” she says.  “It’s sort of a magical experience. I was skeptical about restorative justice until I started sitting in circles. But it’s really transformative, in a way that’s hard to measure.”

June 24, 2021 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Monday, June 21, 2021

"Truth, Lies and The Paradox of Plea Bargaining"

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

This Article describes the regular use of lying during plea bargaining by criminal justice stakeholders, and the paradox it presents for those who care about creating a fairer criminal legal system . The paradox is this: lying at plea bargaining allows defendants the opportunity to negotiate fair resolutions to their cases in the face of a deeply unfair system, even as that lying makes way for — and sustains — the problematic system it seeks to avoid.

The Article lays out a taxonomy of lying at plea bargaining, organizing the types of lies into three categories: lies about facts, lies about law and lies about process.  The criminal justice system produces a litany of injustices. Implicitly authorized, systemic lying offers a means of dealing with these perceived injustices. But lying also obscures the system from public view, hiding and relieving pressure points via plea bargaining.

Unfortunately, what seems like the natural solution — to make the system more transparent and accountable — would likely harm individual defendants.  If lying at plea bargaining disappeared tomorrow, many defendants would suffer dire consequences, such as deportation for minor charges or being subjected to outrageous mandatory minimum sentences.  These defendants would lose their ability to avoid the injustices of the system.  And yet, lying at plea bargaining is the result of a series of interlocking, mandatory laws and rules that many stakeholders believe are deeply unfair and should be reformed.  Thus, lying at plea bargaining is both a means of avoiding injustice and a force prohibiting meaningful reformation of the laws and rules that produce such injustice.  To put it another way, the lies in the taxonomy are workarounds for a system so barbaric that lawyers are willing to lie to help defendants avoid the worst of it, but they also make that same system nearly impossible to reform.

Examining this paradox leads to the conclusion that conversations about reform must focus on total overhaul of the system, not piecemeal correction.  Something closer to abolition than alteration is the appropriate response to a system so entangled that lying is the only way to reach a just resolution.

June 21, 2021 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (3)

Saturday, June 12, 2021

"Progressive Algorithms"

The title of this post is the title of this notable new paper authored by Itay Ravid and Amit Haim available via SSRN.  Here is its abstract:

Our criminal justice system is broken.  Problems of mass incarceration, racial disparities, and susceptibility to error are prevalent in all phases of the criminal process.  Recently, two dominant trends that aspire to tackle these fundamental problems have emerged in the criminal justice system: progressive prosecution — often defined as elected reform-minded prosecutors that advance systemic change in criminal justice — and algorithmic decision-making — characterized by the adoption of statistical modeling and computational methodology to predict outcomes in criminal contexts.

While there are growing bodies of literature on each of these two trends, thus far they have not been discussed in tandem.  This Article argues that scholarship on criminal justice reform must consider both developments and strive to reconcile them.  We argue that while both trends promise to address similar key flaws in the criminal justice system, they send diametrically opposed messages with respect to the role of humans in advancing criminal justice reform.  Progressive prosecution posits that humans are the solution, while algorithmic tools suggest humans are the problem.  This clash reflects both normative frictions and deep differences in the modus operandi of each of these paradigms.  Such tensions are not only theoretical but have immediate practical implications such that each approach tends to inhibit the advantages of the other with respect to bettering the criminal justice system.

We argue against disjointly embedding progressive agendas and algorithmic tools in criminal justice systems.  Instead, we offer a decision-making model which prioritizes principles of accountability, transparency, and democratization without neglecting the benefits of computational methods and technology.  Overall, this article offers a framework to start thinking through the inherent frictions between progressive prosecution and algorithmic decision-making and the potential ways to overcome them.  More broadly, the Article contributes to the discussions about the role of humans in advancing legal reforms in an era of pervading technology.

June 12, 2021 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Technocorrections, Who Sentences | Permalink | Comments (0)

Tuesday, June 08, 2021

"Exploring Alternative Approaches to Hate Crimes"

The title of this post is the title of this notable new lengthy report published today by the Brennan Center for Justice at NYU Law and Stanford Law School.  I received an email about the publication, which provided this overview:

Exploring Alternative Approaches to Hate Crimes” [is] a comprehensive report that assesses critiques of hate crime laws from communities of color and other targeted communities, and evaluates potential alternative approaches to respond to hate crimes more effectively.  The report addresses the harm hate crimes inflict and the limitations in keeping track of such crimes.  It finds that the current approach to hate crimes relies on increased law enforcement and imprisonment and that alternative responses centered on restorative justice and social services “may offer a way to identify and mend the unique individual and community harms caused by hate crimes, while demanding meaningful accountability for those who cause harm.”

“Our current hate crimes laws aim to recognize the profound harm to victims and their communities from crimes motivated by bias, but, as our report finds, they fall short in many ways,” said Stanford Law professor Shirin Sinnar, who along with Brennan Center Fellow Michael German, guided the policy practicum, Assessing Alternative Approaches to Hate Crimes, that compiled the report.  “Our goal with this report was to evaluate the traditional hate crime legal model, which focuses on increasing imprisonment for crimes with a proven bias motive, and explore the different approaches that local communities are now trying to counteract the injuries hate crimes inflict.”

“Hate crimes clearly remain a serious problem affecting uncounted individuals and communities across the U.S., and the law enforcement-centric approach we've employed over the last several decades has not provided satisfactory outcomes, or properly accounted for the harms,” said German.

New York City, Oakland, Calif., and other communities across the country have been trying some of the alternatives covered in Exploring Alternative Approaches to Hate Crimes. The report calls for greater investments in such programs to allow communities to experiment with methodologies that might more effectively mitigate the harms from hate crimes.

The report, put together by Stanford Law School students enrolled in the policy practicum, drew on findings from a March 2020 convening at Stanford Law School of experts in the fields of criminal law, civil rights, community advocacy and restorative justice. It also includes research from law, criminology, and other fields.  For the report, the Stanford Law School policy lab defined a “hate crime” as a criminal offense motivated by hostility against certain actual or perceived characteristics of a victim’s identity, including race or ethnicity, religion, gender, national origin, and sexual orientation, among others.

Most states and the federal government have enacted laws that create “stand-alone” offenses or impose sentence enhancements for crimes with a bias motive.  But in recent years, some community groups and racial justice advocates have questioned whether this approach relies too heavily on carceral solutions, especially through sentence enhancements, and whether current solutions sufficiently respond to the unique individual and community harms of hate crimes....

The report assessed restorative justice programs for hate crimes and social services programs for individuals and communities that are increasingly piloted across the country, both as substitutes for, or to exist alongside, the traditional legal approach.  The report found that, while challenging questions remain as to program design, restorative justice programs may offer a promising alternative to the traditional law enforcement approach to hate crimes.  It notes that “these programs should be subjected to rigorous study, to ensure they are implemented with the necessary attention to the constitutional rights of accused parties and the safety and well-being of impacted individuals and communities.

The report also found that support for social services and grant programs can be established, retooled, and better staffed and funded to ensure that individuals and communities affected by hate crimes receive adequate, culturally competent resources.  “Our work details alternative approaches that impacted communities are beginning to explore, which are designed to repair more directly the harms bias-motivated crimes inflict,” said German.  “We hope this report becomes a resource for communities looking for more effective methods of responding to hate crimes."

June 8, 2021 in Criminal Sentences Alternatives, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (0)

Saturday, June 05, 2021

"Roper, Graham, Miller, & the MS-13 Juvenile Homicide Cases"

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

The majority of MS-13 suspects arrested for murder on Long Island in recent years have been minors.  This shocking and tragic phenomenon raises vexing issues for law enforcement, the courts, politicians, educators, and all citizens in communities plagued by gang violence.  This Note focuses on a single legal issue: in light of recent Supreme Court cases, beginning with the 2005 landmark ruling in Roper v. Simmons, how should judges impose sentences on persons convicted of committing homicide before their eighteenth birthday?  Although we will see that the holdings of the three leading Supreme Court cases addressing this question are reasonably clear, many challenging questions remain for sentencing judges who attempt to faithfully apply these decisions.  This Note will explore some of these issues through the prism of MS-13 juvenile-homicide cases, using the sentencing of Josue Portillo for his quadruple murder when he was 15 years-old, as a case study.

This Note proceeds in three parts. Part I sets the stage for studying the Supreme Court’s juvenile sentencing jurisprudence. It takes a step back in order to orient the landmark trilogy of cases — Roper, Graham, and Miller — within the broader legal framework of criminal and juvenile justice. It is broken into three subcategories.  Subpart (A) briefly explains the principal justifications for punishing criminality.  After better understanding why we punish altogether, Subpart (B) analyzes why juveniles should be punished differently from adults.  This is explored very briefly from a historical, political, and legal perspective.  Subpart (C) explains in what circumstances juveniles in the justice system are treated like adults and why, again from a historical, political, and legal perspective.  Part II examines how the Supreme Court limited in some measure the punishments that can be meted out to juveniles, even if being sentenced within the adult criminal justice system.  Roper, Graham, and Miller are explored in detail, as well as some of the preceding cases that paved the road to these landmark rulings, and some subsequent cases.  Part III analyzes how judges should implement the guidance given by the Supreme Court in these cases.  The analysis will trace Josue Portillo’s case but its implications apply across the field of juvenile justice.

June 5, 2021 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Tuesday, June 01, 2021

"Victims’ Rights in the Diversion Landscape"

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

In this piece I explore the practical and theoretical conflicts that might surface when the diversion movement and the victims’ rights movement intersect.  I focus on two possible sites of tension: victim input into the diversion offer and the victim’s right to receive restitution as a term of diversion.  Protocols to give victims greater voice in the justice process have been a mainstay of the burgeoning victims’ rights movement for the past several decades, but I argue that those protocols must be understood within (and thus limited by) the context of fiscal responsibility, compassion for the offender, and proportionality in the justice system that lie at the heart of diversion schemes.  Any other arrangement risks elevating retribution over rehabilitation and inserts a level of arbitrariness into the diversion process that would subvert our commitment to fairness and transparency.

June 1, 2021 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (0)

Saturday, May 29, 2021

"Mala Prohibita and Proportionality"

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

What is the proportionate punishment for conduct that is neither harmful nor wrongful?  A likely response to that is that one ought not to be punished at all for such conduct. It is, however, common for the state to punish harmless conduct the wrongfulness of which is not always apparent.  Take, for example, the requirement that those who give investment advice for compensation do so only after registering as an investment advisor.  Advising a person on how to invest his or her funds and accepting a fee for the advice without registering with the government does not seem harmful or wrongful, so long as no fraud is involved, the relevant parties understand the relevant risks, and so on.  But practicing investment advising without registering is a crime for which one may be convicted and punished.

When one thinks of crimes, paradigmatic offenses are crimes like murder, rape, and robbery, but offenses like failure to register as an investment advisor are different.  But in what way?  One standard explanation is the distinction between two types of offenses, malum in se and malum prohibitum.  Some offenses, like murder, are wrongs “in themselves” (“in se”) whereas other offenses, like investment advising without registering as an advisor, are wrongs because they have been prohibited (“prohibitum”).  The question this Essay asks is how we should think about proportionality of punishment when punishing such mala prohibita offenses.  This Essay presents a framework for such proportionality determinations and raises some challenges such a framework would need to confront.

May 29, 2021 in Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (4)

Tuesday, May 25, 2021

"The Power of Parsimony"

The title of this post is the title of this notable new report authored by Daryl Atkinson and Jeremy Travis as part of Columbia University’s Square One Project.  The whole report looks like a must-read, and here is the start and close of its introduction:

As our country comes to terms with the damage caused by our excessive reliance on punishment as a response to crime, the use of the criminal law to sustain racial hierarchies, and the ways the justice system has undermined our democracy and weakened communities, we must ask: what principles should guide this fundamental reexamination of a seemingly immovable status quo? In this paper we propose that the principle of parsimony — if re-considered while recognizing the historical racist underpinnings of the American criminal legal system — can provide a framework that serves as both critique of that history and an elevating aspiration for a reimagined approach to justice.

We begin with the classic formulation of the principle of parsimony: under traditional social contract theory, the state is only authorized to exercise the lightest intrusion into a person’s liberty interest that is necessary to achieve a legitimate social purpose.  Any intrusion beyond what is necessary is inherently illegitimate and may even constitute state violence. We define “liberty interest” as a person’s right to be left alone — free from harmful state intervention. Determining the extent to which any intrusion is necessary, ascertaining the legitimacy of the social purpose, and recognizing the value of beneficial state support require pragmatic calculations, but the power of parsimony lies in its emphasis on the primacy of the liberty interest and its limitation on state power....

We believe that a process of reckoning with the historical failures of the state to honor the social contract — and the role of the criminal law in that tragic history — can help facilitate the creation of a new vision of justice.  The principle of parsimony can support this ambition by requiring that our society affirm the centrality of individual liberty, limit the application of state power, come to terms with our history, and reconstruct our social contract to include those communities that have been excluded.  The vision of justice that emerges from rigorous application of these guiding principles would be grounded in human dignity, social justice, an honest understanding of our past, and vibrant community life.

We begin this paper by describing the history of the principle of parsimony, which has philosophical and jurisprudential roots.  We then apply the principle of parsimony to three aspects of criminal justice — prison sentences, collateral consequences, and solitary confinement — to demonstrate the analytical power of this framework.  We conclude the paper by suggesting that the principle of parsimony can be an integral part of the process of “reimagining justice” that is now underway in our country and lies at the heart of the Square One Project.  We believe that the principle of parsimony, as reinterpreted to require a reckoning, can make a uniquely powerful contribution to the current era as reformers, abolitionists, activists, legislators, and system stakeholders are bringing new energy and urgency to the challenge of creating a compelling vision for the future of justice in America.

May 25, 2021 in Purposes of Punishment and Sentencing | Permalink | Comments (1)

Monday, May 24, 2021

"Objective Punishment"

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

The article addresses the question whether the punishment, besides fitting the crime, should also fit the criminal.  A widely accepted principle of proportionality declares the worse the crime, the worse the punishment.  But how should punishment severity be measured? 

Specifically, when the severity of a punishment is being evaluated for the purpose of fitting the crime, should idiosyncratic features of the offender be taken into account?  Should a person suffering from claustrophobia get a shorter sentence because incarceration will be harder on him?  Should being assaulted while incarcerated result in a shorter sentence because the actual incarceration was more harsh than expected?  Should the foreseeable consequences of incarceration — losing a particularly high paying job or getting badly desired publicity — be considered in sentencing?

The article argues, contrary to some recent scholarship, for an “objective theory” of punishment, according to which such idiosyncratic features of offenders are irrelevant to the determination of the punishment deserved, but may be considered as part of multi-valued scheme for managing social resources generally.

May 24, 2021 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Friday, May 21, 2021

"Population-Based Sentencing"

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

The institutionalization of actuarial risk assessments at sentencing reflects the extension of the academic and policy-driven push to move judges away from sentencing individual defendants and toward basing sentencing on population level representations of crimes and offenses.  How have courts responded to this trend?  Drawing on the federal sentencing guidelines jurisprudence and the emerging procedural jurisprudence around actuarial risk assessments at sentencing, this Article identifies two techniques.  First, the courts have expanded individual procedural rights into sentencing where they once did not apply.  Second, the courts have created procedural rules that preserve the space for judges to pass moral judgment on individual defendants.  These responses exist in deep tension with policymakers’ goals to shape sentencing outcomes in the abstract.  While courts seek to preserve the sentencing process, advocates encourage the courts to manage the population-based sentencing tools. The courts’ response is potentially problematic, as refusal to regulate the tools can undermine criminal administration.  However, it presents an underexplored opportunity for courts and opponents of the recent trend toward institutionalizing actuarial risk assessments to jointly create the intellectual and policy-driven space for more fundamental, structural reforms relating to the U.S. criminal legal apparatus. This Article urges the courts and legal scholars to consider these alternatives going forward.

May 21, 2021 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Who Sentences | Permalink | Comments (0)

Tuesday, May 18, 2021

"The Feminist Script for Punishment"

The title of this post is the title of this new article/book review by I. India Thusi now available via SSRN.  Here is its abstract:

In her new book, The Feminist War on Crime, Professor Aya Gruber provides a critique of feminists, who have sought political vindication through a governance of punishment. Professor Elizabeth Bernstein coined the term “carceral feminism” to describe the feminist commitment to “a law and order agenda and . . . a drift from the welfare state to the carceral state as the enforcement apparatus for feminist goals.”  While feminist movements have expanded the opportunities available to women and girls, too often their means for achieving these accomplishments have been paved on a path of the privileges of feminist elites.  These privileges are immune from the pressures of multiple forms of subordination that form the interstitial web of inequality that many other women encounter.  These other women are also Other women, in that they are often outsiders in American society, not just because they are women, but also because they are women of color, poor, immigrant, less educated, disabled, and/or queer.  The positionality of these Other women is important because they often have personal experiences that make engagement with the state apparatus for punishment undesirable.  Black feminists advanced the concerns of the Other women through their activism for state responses that address the systemic, material conditions that make women vulnerable to violence, rather than through engagement with the technologies of punishment.  Other women have experienced state violence, either through the inherited trauma that runs in their blood from the violence against their ancestors, or through their daily experiences of everyday subordination within their communities. White, elite feminists have often missed their perspectives.  Or, at times, they have outright demeaned their perspectives. Either way, the path to gender equality has had an unsettling entanglement with carcerality. And the logics of punishment and imprisonment have informed feminist demands for reforms. This feminist fascination with the carceral is the subject of Gruber’s book.

Gruber’s historical analysis of the entanglement between feminism and incarceration illustrates that the feminist rage against the patriarchy has at times transformed into retributivist impulses to punish, which contradict feminist values and exacerbate social injustice. Gruber recounts several examples of feminist campaigns that advanced a feminist script for punishment.  Many of these campaigns were motivated by the laudable aim of eradicating violence against women and improving women’s ability to lead safe and healthy lives.  The various feminist campaigns for more punishment occurred in different decades and had various leaders. But they all share a common script about punishment.  They developed similar story lines about women.  They painted victims and villains that look remarkably similar through the decades.  They subscribe to the same dominant story about the role of the criminal law as a sword against perpetrators.  While the individual characters in the script vary and are not always identical, many of the elements that advance their pleas for additional punishment are remarkably similar.  These stories follow the same script: a feminist script for punishment.

May 18, 2021 in Purposes of Punishment and Sentencing, Race, Class, and Gender, Recommended reading | Permalink | Comments (1)

Saturday, May 15, 2021

"That is Enough Punishment: Situating Defunding the Police within Antiracist Sentencing Reform"

The title of this post is the title of this new paper available via SSRN authored by Jalila Jefferson-Bullock and Jelani Jefferson Exum. Here is its abstract:

During the summer of 2020, the police killings of George Floyd, Breonna Taylor, and others created a movement that unearthed a reality that Black people in the United States have always been aware of: systemic racism, in the form of police brutality, is alive and well. While the blatant brutality of George Floyd’s murder at the hands of police is the flame, the spark was ignited long ago.  One need only review the record of recent years — the killings of Eric Garner, Michael Brown, Tamir Rice, Antwon Rose, Alton Sterling, Philando Castile, Breonna Taylor, and countless other souls have led to this particular season of widespread protests and organized demands for change.  As the focus turns from necessary protest to tangible progress, what remains unanswered is how best to proceed.  Professor Ibram X. Kendi described antiracism as “a radical choice in the face of this history, requiring a radical reorientation of our consciousness.”  One such “radical choice” is defunding the police.

Although the long-held belief in police “super powers” is crumbling, the majority of Americans do not support wholesale defunding and instead advocate for specific reforms; 35% of participants in a 2020 Pew study recorded that the police use the correct amount of force in every situation, compared to 45% in 2016.  Likewise, the share of people who believe police treat racial and ethnic groups equally dropped from 47% in 2016 to 34% in 2020, and the share of those who thought the justice system should hold officers accountable when misconduct occurs rose to 44% in 2020, compared to 31% in 2016. A 2018 poll found that two-thirds of people in the United States support banning chokeholds.  Most Americans do support disciplining police misconduct and lessening protections against legal action.  Seventy-four percent of Americans believe that police violence against the public is a problem, and 42% believe it is a major problem. Nevertheless, only 25% of Americans endorse decreased spending on police forces. In many ways, polling reveals a public misunderstanding of what defunding the police actually means.  Polls indicate that people balk at the term “defund the police” but appear more open if directly asked if they support shifting money allocated to police toward specific social services.  This Article argues that discomfort with defunding the police is misplaced.

Understanding policing as a form of punishment clarifies how reforming policing — including defunding the police — fits within the broader, more widely accepted sentencing reforms that have taken place in recent years.  The Supreme Court has refused to recognize policing as punishment, and several scholars have commented on the Court’s failure to do so. Adding to this conversation, this Article asserts that policing is punishment and demonstrates that policing reform is rightly situated within discussions of overall sentencing reform.  Sentencing reform supported on both sides of the political aisle recognizes that jurisdictions have spent money on incarceration but have not actually accomplished punishment goals.  When resources are re-directed to support legitimate punitive goals better, then not only are resources saved but also systemic racism can be addressed.  As it stands, purposeless punishment only serves to support institutional bias.  The same is true for retaining the current system of policing.  Once one understands that the current policing model in the United States facilitates purposeless punishment, its only remaining plausible objective is to sustain a system of racial oppression.  To truly begin eradicating racism in policing, it is imperative to place policing reform in the broader context of sentencing reform and begin approaching all forms of punishment with an antiracist lens.

May 15, 2021 in Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (1)

Thursday, May 13, 2021

"Sentence Length and Recidivism: A Review of the Research"

The title of this post is the title of this notable new working paper authored by Elizabeth Berger and Kent Scheidegger of the Criminal Justice Legal Foundation.  Here is the paper's abstract:

In response to increasing concerns about jail and prison overcrowding, many officials and legislatures across the U.S. have undertaken different efforts aimed at reducing the prison population, such as reduced sentence lengths and early release of prisoners.  Thus, there is currently a high degree of public interest regarding how these changes in policy might affect recidivism rates of released offenders.  When considering the research on the relationship between incarceration and recidivism, many studies compare custodial with non-custodial sentences on recidivism, while fewer examine the impact of varying incarceration lengths on recidivism.  This article provides a review of the research on the latter.

While some findings suggest that longer sentences may provide additional deterrent benefit in the aggregate, this effect is not always consistent or strong.  In addition, many of the studies had null effects, while none of the studies suggested a strong aggregate-level criminogenic effect.  Overall, the literature on the impact of incarceration on recidivism is admittedly limited by important methodological considerations, resulting in inconsistency of findings across studies.  In addition, it appears that deterrent effects of incarceration may vary slightly for different offenders.  Ultimately, the effect of incarceration length on recidivism appears too heterogenous to be able to draw universal conclusions.  We argue that a deepened understanding of the causal mechanisms at play is needed to reliably and accurately inform policy.

May 13, 2021 in Data on sentencing, National and State Crime Data, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (0)

Monday, May 10, 2021

Two sharp discussions of the inefficacy and inequities of the war on drugs

Today I saw two different types of commentary coming from two different authors saying in different ways the same fundamental resolute point: the war on drugs has been a failure full of injustices and we must dramatically change course.  Both pieces should be read in full, and I hope these snippets prompt clicks through:

First, be sure to check out Nora Volkow, director of the National Institute on Drug Abuse (NIDA), Health Affairs blog entry titled "Addiction Should Be Treated, Not Penalized." (Hat tip: Marijuana Moment).  Here are excerpts (links from original):

[Health] disparities are particularly stark in the field of substance use and substance use disorders, where entrenched punitive approaches have exacerbated stigma and made it hard to implement appropriate medical care. Abundant data show that Black people and other communities of color have been disproportionately harmed by decades of addressing drug use as a crime rather than as a matter of public health....

Although statistics vary by drug type, overall, White and Black people do not significantly differ in their use of drugs, yet the legal consequences they face are often very different. Even though they use cannabis at similar rates, for instance, Black people were nearly four times more likely to be arrested for cannabis possession than White people in 2018.  Of the 277,000 people imprisoned nationwide for a drug offense in 2013, more than half (56 percent) were African American or Latino even though together those groups accounted for about a quarter of the US population.

During the early years of the opioid crisis in this century, arrests for heroin greatly exceeded those for diverted prescription opioids, even though the latter — which were predominantly used by White people — were more widely misused.  It is well known that during the crack cocaine epidemic in the 1980s, much harsher penalties were imposed for crack (or freebase) cocaine, which had high rates of use in urban communities of color, than for powder cocaine, even though they are two forms of the same drug.  These are just a few examples of the kinds of racial discrimination that have long been associated with drug laws and their policing....

Drug use continues to be penalized, despite the fact that punishment does not ameliorate substance use disorders or related problems.  One analysis by the Pew Charitable Trusts found no statistically significant relationship between state drug imprisonment rates and three indicators of state drug problems: self-reported drug use, drug overdose deaths, and drug arrests.  

Imprisonment, whether for drug or other offenses, actually leads to much higher risk of drug overdose upon release. More than half of people in prison have an untreated substance use disorder, and illicit drug and medication use typically greatly increases following a period of imprisonment. 

Second, be sure to also read Nkechi Taifa, convener of the Justice Roundtable, commenting at the Brennan Center under the title "Race, Mass Incarceration, and the Disastrous War on Drugs."  Here is how the (relatively more optimistic) piece concludes (again links in original):

Fortunately, the tough-on-crime chorus that arose from the War on Drugs is disappearing and a new narrative is developing.  I sensed the beginning of this with the 2008 Second Chance Reentry bill and 2010 Fair Sentencing Act, which reduced the disparity between crack and powder cocaine.  I smiled when the 2012 Supreme Court ruling in Miller v. Alabama came out, which held that mandatory life sentences without parole for children violated the Eighth Amendment's prohibition against cruel and unusual punishment.  In 2013, I was delighted when Attorney General Eric Holder announced his Smart on Crime policies, focusing federal prosecutions on large-scale drug traffickers rather than bit players.  The following year, I applauded President Obama’s executive clemency initiative to provide relief for many people serving inordinately lengthy mandatory-minimum sentences.  Despite its failure to become law, I celebrated the Sentencing Reform and Corrections Act of 2015, a carefully negotiated bipartisan bill passed out of the Senate Judiciary Committee in 2015; a few years later some of its provisions were incorporated as part of the 2018 First Step Act.  All of these reforms would have been unthinkable when I first embarked on criminal legal system reform.

But all of this is not enough.  We have experienced nearly five decades of destructive mass incarceration.  There must be an end to the racist policies and severe sentences the War on Drugs brought us.  We must not be content with piecemeal reform and baby-step progress.

Indeed, rather than steps, it is time for leaps and bounds.  End all mandatory minimum sentences and invest in a health-centered approach to substance use disorders.  Demand a second-look process with the presumption of release for those serving life-without-parole drug sentences.  Make sentences retroactive where laws have changed.  Support categorical clemencies to rectify past injustices.

It is time for bold action.  We must not be satisfied with the norm, but work toward institutionalizing the demand for a standard of decency that values transformative change.

May 10, 2021 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (0)

Saturday, May 08, 2021

"Encouraging Desistance from Crime"

The title of this post is the title of this extended literature review authored by Jennifer Doleac and now available via SSRN discussing lots of empirical research that may not be familiar, but should be of great interest, to lawyers and advocates.  Here is its abstract:

Half of individuals released from prison in the United States will be re-incarcerated within three years, creating an incarceration cycle that is detrimental to individuals, families, and communities.  There is tremendous public interest in ending this cycle, and public policies can help or hinder the reintegration of those released from jail and prison.  This review summarizes the existing empirical evidence on how to intervene with existing offenders to reduce criminal behavior and improve social welfare.

May 8, 2021 in Collateral consequences, Detailed sentencing data, Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (0)

Thursday, May 06, 2021

"What’s Really Wrong with Fining Crimes? On the Hard Treatment of Criminal Monetary Fines"

The title of this post is the title of this interesting new paper authored by Ivó Coca-Vila now available via SSRN.  Here is its abstract:

Among the advocates of expressive theories of punishment, there is a strong consensus that monetary fines cannot convey the message of censure that is required to punish serious crimes or crimes against the person (e.g., rape).  Money is considered an inappropriate symbol to express condemnation. In this article, I argue that this sentiment is correct, although not for the reasons suggested by advocates of expressivism.  The monetary day-fine should not be understood as a simple deprivation of money, but as a punishment that re-duces the offender’s capacity to consume for a certain period of time.  Conceived in this manner, I argue that it is perfectly suitable to convey censure.

However, the practical impossibility of ensuring that the person who pays the fine is the same person who has been convicted of the offense seriously undermines the acceptability of the monetary fine as an instrument of censure.  Minimizing the risk of the fine’s hard treatment being transferred to third parties is a necessary condition for the monetary fine to be considered a viable alternative to lengthy prison sentences.

May 6, 2021 in Fines, Restitution and Other Economic Sanctions, Purposes of Punishment and Sentencing | Permalink | Comments (1)

Saturday, April 17, 2021

"Applying Procedural Justice in Community Supervision"

The title of this post is the title of this interesting report released last month by folks at the Urban Institute.  This page has this abstract for the report:

Procedural justice, a framework for authority figures to treat people with fairness and respect, can improve probation supervision and core supervision outcomes.  This report summarizes the approach and provision outcomes of an effort to develop and pilot a new procedural justice training curriculum outlining new tools and practices for probation officers.  Analyses of interactions between supervising officers and people under supervision, survey responses regarding perceptions of supervision, and analyses of administrative data provided mixed findings, with some preliminary indications that participating in the procedural justice training may make probation officers’ treatment of people under supervision fairer and more respectful and improve supervision outcomes.  However, the conclusions that can be drawn from even those results supportive of intervention impact are subject to significant limitations, given the nonexperimental nature of the design and the small number of observations in some of the data collected.

April 17, 2021 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Friday, April 16, 2021

"Virginia should roll back the punitive influence of prosecutors and victims on parole decisions"

The title of this post is the headline of this new Washington Post op-ed by Nora Demleitner.  Here are excerpts:

The Virginia Parole Board scandal gets worse by the day.  The board stands accused of disregarding state law and its own procedures to facilitate the parole release of a few incarcerated men.

A watchdog report alleges that the board failed to consider the required input from victim families and did not inform them and prosecutors of pending releases.  As some Virginia legislators demand further investigation, we should also question the role victims and their families and prosecutors should play in parole hearings in light of their outsize influence on the outcome.  Release decisions should focus on reintegration and second chances. Only rarely do victims and prosecutors have relevant knowledge on these issues. For that reason, states need to roll back their involvement in release decisions....

Currently, victims and prosecutors effectively determine the outcome of parole decisions.  All states, including Virginia, provide victims with opportunities to weigh in on impending parole releases.  When they do, their impact is substantial. That may not be surprising as victims’ rights groups and prosecutors have labeled releases over victim objections another victimization.  That means in many states, victims exercise a virtual veto over releases.

But inmates eligible for parole do not have to contend only with victims. In many states, prosecutors are explicitly invited to participate in hearings, either by providing their views in writing or in person.  At least one study demonstrates the powerful impact of their testimonials. Prosecutorial recommendations against parole tend to lead to denials. Surprisingly, the opposite does not hold.  Apparently, some boards only credit punitive prosecutors....

Victim participation in parole hearings, strongly supported by prosecutor associations, was an outgrowth of the victims’ rights movement. It promised to counteract the perceived leniency of the criminal justice system and give victims a voice.  But participation fails to provide victims with real support and instead privileges punitiveness, never-ending symbolic revenge. Many victims do not participate in parole hearings.  Their addresses may no longer be on file, or they decided to put the past behind them.  Often only those victims who insist on continued incarceration have garnered publicity and prosecutorial support.  That makes release random and largely dependent on the victim.  This practice reinforces a system marred by vast racial, class and power inequities.

Release review, in the form of parole and other mechanisms, should not re-litigate the conviction offense but rather assess whether the incarcerated person will be able to reintegrate successfully and desist from crime in the future.  It is about second chances. Prosecutors and victims, who have an opportunity to make their case at earlier stages — charging, plea bargaining or a trial and sentencing — will know little about the imprisoned person’s suitability for release, which may first come up decades after the crime.

Deaths and serious crime leave a lasting impact that cannot be undone.  Yet, when an offender becomes parole-eligible, retributive concerns should no longer play a role.  Only in cases in which they could speak to reintegration and recidivism, such as when the incarcerated person recently threatened them, for example, is victim or prosecutor testimony relevant. Otherwise, their input does not advance the assessment of an incarcerated person’s future prospects.  There are more meaningful opportunities for their participation and for society and the criminal justice system to show their support for victims.  Release decisions are the wrong moment.

In its next session, Virginia’s legislators should take another look at parole and recalibrate the focus of release hearings.  Reintegration and second chances mean rolling back the involvement of victims and prosecutors.  It is time to end this ill-guided practice of the carceral state that elevates punitive impulses above rehabilitation and second chances.

April 16, 2021 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (0)

Friday, April 09, 2021

Latest American Journal of Bioethics issue takes hard look at "War on Drugs"

Download (17)I am pleased to have discovered that new issue of the American Journal of Bioethics has a lead article and a host of responsive commentaries on the modern state of debate over the war on drugs.  Here are links to all the great looking content:

Ending the War on Drugs Is an Essential Step Toward Racial Justice by Jeffrey Miron & Erin Partin

Racial Justice Requires Ending the War on Drugs by Brian D. Earp, Jonathan Lewis, Carl L. Hart & with Bioethicists and Allied Professionals for Drug Policy Reform

Ending the War on People with Substance Use Disorders in Health Care by Kelly K. Dineen & Elizabeth Pendo

Legalization of Drugs and Human Flourishing by Marianne Rochette, Esthelle Ewusi Boisvert & Eric Racine

Ending the War on Drugs: Public Attitudes and Incremental Change by Joseph T. F. Roberts

Some Contributions on How to Formulate Drug Policies and Provide Evidence-Based Regulation by S. Rolles, D. J. Nutt & A. K. Schlag

Ending the War on Drugs Need Not, and Should Not, Involve Legalizing Supply by a For-Profit Industry by Jonathan P. Caulkins & Peter Reuter

Racial Justice and Economic Efficiency Both Require Ending the War on Drugs by Pierre-André Chiappori & Kristina Orfali

Ending the War on Drugs Requires Decriminalization. Does It Also Require Legalization? by Travis N. Rieder

Beyond Decriminalization: Ending the War on Drugs Requires Recasting Police Discretion through the Lens of a Public Health Ethic by Brandon del Pozo, Leo Beletsky, Jeremiah Goulka & John Kleinig

Drug Legalization is Not a Masterstroke for Addressing Racial Inequality by Wayne Hall & Adrian Carter

The Importance of Rights to the Argument for the Decriminalization of Drugs by Kyle G. Fritz

The “War on Drugs” Affects Children Too: Racial Inequities in Pediatric Populations by Emily W. Kemper, Emily Davis, Anthony L. Bui, Austin DeChalus, Melissa Martos, Jessica E. McDade, Tracy L. Seimears & Aleksandra E. Olszewski

“It’s a War on People …” by Jarrett Zigon

“Second Chance” Mechanisms as a First Step to Ending the War on Drugs by Colleen M. Berryessa

April 9, 2021 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Recommended reading | Permalink | Comments (0)

Saturday, April 03, 2021

"Science and the Eighth Amendment"

The title of this post is the title of this book chapter by Meghan Ryan just made available via SSRN.  Here is its abstract:

As time hurtles forward, new science constantly emerges, and many scientific fields can shed light on whether a punishment is unconstitutionally cruel and unusual, or even on whether bail or fines are unconstitutionally excessive under the Eighth Amendment.  In fact, in recent years, science has played an increasingly important role in the Court’s Eighth Amendment jurisprudence.  From the development of an offender’s brain, to the composition of lethal injection drugs, even to measurements of pain, knowledge of various scientific fields is becoming central to understanding whether a punishment is unconstitutionally cruel and unusual. 

There are a number of limits to how the Court can weave science into its decisions, though.  For example, relevant data are difficult to come by, as ethical limitations prevent a wide swath of focused research that could be useful in this arena.  Further, the Justices’ understandings of the complicated science that can help inform their Eighth Amendment decisions are limited.  This chapter examines the relevance and limitations of science — both physical and social — in Eighth Amendment analyses.

April 3, 2021 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)