Sentencing Law and Policy

"Bias In, Bias Out"

The title of this post is the title of this recent article authored by Sandra Mayson that I just came across on SSRN. Here is its abstract:

Police, prosecutors, judges, and other criminal justice actors increasingly use algorithmic risk assessment to estimate the likelihood that a person will commit future crime.  As many scholars have noted, these algorithms tend to have disparate racial impact. In response, critics advocate three strategies of resistance: (1) the exclusion of input factors that correlate closely with race, (2) adjustments to algorithmic design to equalize predictions across racial lines, and (3) rejection of algorithmic methods altogether.

This Article’s central claim is that these strategies are at best superficial and at worst counterproductive, because the source of racial inequality in risk assessment lies neither in the input data, nor in a particular algorithm, nor in algorithmic methodology.  The deep problem is the nature of prediction itself.  All prediction looks to the past to make guesses about future events.  In a racially stratified world, any method of prediction will project the inequalities of the past into the future.  This is as true of the subjective prediction that has long pervaded criminal justice as of the algorithmic tools now replacing it.  What algorithmic risk assessment has done is reveal the inequality inherent in all prediction, forcing us to confront a much larger problem than the challenges of a new technology.  Algorithms shed new light on an old problem.

Ultimately, the Article contends, redressing racial disparity in prediction will require more fundamental changes in the way the criminal justice system conceives of and responds to risk.  The Article argues that criminal law and policy should, first, more clearly delineate the risks that matter, and, second, acknowledge that some kinds of risk may be beyond our ability to measure without racial distortion — in which case they cannot justify state coercion.  To the extent that we can reliably assess risk, on the other hand, criminal system actors should strive to respond to risk with support rather than restraint whenever possible.  Counterintuitively, algorithmic risk assessment could be a valuable tool in a system that targets the risky for support.

"George H.W. Bush’s biggest failure? The war on drugs."

The title of this post is the headline of this Washington Post commentary authored by historian Matthew Pembleton.  Here are excerpts:

And Bush’s complicated legacy does include much good, from his handling of the end of the Cold War to his support for climate science and the Americans With Disabilities Act. But it also includes some bad — specifically, a profound escalation in the War on Drugs. Ronald Reagan may have reoriented public attitudes about drugs when he pronounced in 1982, “Drugs are bad, and we’re going after them . . . And we’re going to win the war on drugs.” But, it was Bush — and later, Bill Clinton — who put real resources into the effort.

When Bush took office, the federal drug control budget was around $5 billion. When he left office in 1993, it was over $12 billion. This was the sharpest escalation in the history of the drug war and it locked the country into a strategy of punishment, deterrence and intolerance. Based on instinct rather than evidence, Bush’s approach did little to alleviate the public health crisis of addiction or halt the flow of drugs to American shores. And we remain trapped within this largely punitive approach today. So while we remember Bush as a “gentle soul,” we should also remember his role in fomenting a drug war that harmed millions of American citizens, particularly in communities of color.

In a tale retold quite a bit over the last few days, one of those citizens was an 18-year-old D.C. resident named Keith Jackson, who was arrested as part of a White House publicity stunt. In September 1989, Bush astonished the American public by brandishing a bag of crack cocaine during a nationally televised address. The drug, a seemingly bemused president remarked, “looked like candy, but it’s turning our cities into battle zones, and it’s murdering our children.”

Rather than address the underlying poverty, despair or thrill-seeking that drives destructive drug use, Bush sought to wipe out the drug menace by punishing everyone involved to the fullest extent of the law and doubling down on policing. The solution, Bush said, was “more prisons, more jails, more courts, more prosecutors,” and a $1.5 billion increase in federal police spending, the greatest single increase in the history of drug enforcement.

Jackson, meanwhile, was a hapless pawn in Bush’s theatrics. When the DEA learned that Bush’s people wanted to use crack seized near the White House as a prop for the speech, they lured the local high school student to Lafayette Square, even giving him directions to get him there. An obvious setup, the case was subsequently thrown out by two juries, but Jackson was eventually sentenced to a mandatory 10 years for selling to an undercover agent in the months leading up to his fateful September arrest.

Bush was widely mocked for the incident but remained unrepentant and paid little price. That’s because the fundamental strategy of escalating the War on Drugs enjoyed widespread bipartisan support, including significant buy-in from the black political class.... The instinct to punish drug users, particularly the poor, runs deep in American political thought, and the consensus supporting these tough-on-crime attitudes continued to harden as Bush championed the growing War on Drugs. On the first anniversary of Bush’s speech, Los Angeles police chief Daryl Gates told the Senate that casual drug users “ought to be taken out and shot.” This wholly punitive approach reached its apotheosis with the 1994 Clinton crime bill and its notorious “three-strikes” provision.

"Tipping Point: A Majority Of States Abandon Life-Without-Parole Sentences For Children"

The title of this post is the title of this new document from the The Campaign for the Fair Sentencing of Youth. Here is its executive summary:

A majority of states now ban life without parole for children or have no one serving the sentence.  A combination of judicial decisions and state legislative reforms have reduced the number of individuals serving by 60 percent in just three years, and that number continues to decline.  Today, approximately 1,100 people are serving life without parole for crimes committed as children.

For the approximately 1,700 individuals whose life-without-parole sentences have been altered through legislative reform or judicial resentencing to date, the median sentence nationwide is 25 years before parole or release eligibility.  Nearly 400 people previously sentenced to life without parole for crimes committed as children have been released from prison to date.  Despite national momentum rejecting life-without-parole sentences for children, racial disparities continue to worsen; of new cases tried since 2012, approximately 72 percent of children sentenced to life without parole have been Black — as compared to approximately 61 percent before 2012.

"What the Feds Can Do to Rein in Local Mercenary Criminal Justice"

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

Although physical and psychological harms caused by local police are the most common bases for federal intervention and reform efforts, this Article focuses on the financial harms local police can cause.  As the U.S. Department of Justice’s Ferguson Report and numerous other studies highlight, local police departments are front-line players in a broader governmental strategy to generate revenue from individuals ensnared in the criminal justice system.  The strategy is problematic for a variety of reasons, including the skewing effect it has on enforcement priorities and the major negative personal impact it has on those targeted (very often, people of color and economically disadvantaged individuals).  Aggravating matters, the mercenary practices of local criminal justice system actors are complemented by private business entities that secure significant profits from the business local governments send their way.  This Article surveys the adverse consequences of local mercenary criminal justice for governance, residents and their communities; the many, quite distinct obstacles that federal reform efforts face; and the several possible avenues for reform and their likelihood of success.

"Layers of Bias: A Unified Approach for Understanding Problems With Risk Assessment"

The title of this post is the title of this article recently published by the journal Criminal Justice and Behavior and authored by Laurel Eckhouse, Kristian Lum, Cynthia Conti-Cook and Julie Ciccolini.  Here is the article's abstract:

Scholars in several fields, including quantitative methodologists, legal scholars, and theoretically oriented criminologists, have launched robust debates about the fairness of quantitative risk assessment. As the Supreme Court considers addressing constitutional questions on the issue, we propose a framework for understanding the relationships among these debates: layers of bias.

In the top layer, we identify challenges to fairness within the risk-assessment models themselves.  We explain types of statistical fairness and the tradeoffs between them.  The second layer covers biases embedded in data.  Using data from a racially biased criminal justice system can lead to unmeasurable biases in both risk scores and outcome measures. The final layer engages conceptual problems with risk models: Is it fair to make criminal justice decisions about individuals based on groups?  We show that each layer depends on the layers below it: Without assurances about the foundational layers, the fairness of the top layers is irrelevant.

Spotlighting the still-challenging politics that surround the intersection of marijuana reform, criminal justice reform and racial inequities

Today's must-read for both marijuana reform and criminal justice reform fans is this lengthy new Politico article fully headlined "Racial Justice and Legal Pot Are Colliding in Congress: The latest fight over criminal justice reform is over allowing felons access to newly legal aspects of the cannabis industry. Lawmakers are getting woke — slowly." I recommend this piece is full, and here are some extended excerpts:

Thanks to Senate Majority Leader Mitch McConnell, the [Farm] bill includes an amendment that would permanently remove hemp from the list of federally banned drugs like heroin and cocaine, freeing hemp from the crippling legal stigma that has made it economically unviable for the past four decades.  But that amendment also includes a little-noticed ban on people convicted of drug felonies from participating in the soon-to-be-federally-legal hemp industry.

Added late in the process, apparently to placate a stakeholder close to McConnell, the exception has angered a broad and bipartisan coalition of lawmakers, hemp industry insiders and religious groups who see it as a continuing punishment of minorities who were targeted disproportionately during the War on Drugs and now are being denied the chance to profit economically from a product that promises to make millions of dollars for mostly white investors on Wall Street....

[L]awmakers like McConnell, who have discovered the economic benefits of relaxing prohibitions on products such as hemp, have nevertheless quietly found ways, like the Farm Bill felon ban, to satisfy the demands of their anti-legalization constituents, to the chagrin of pro-cannabis lawmakers and activists. After POLITICO Magazine reported on the drug-crime felon ban in August, three senators — Cory Booker (D-New Jersey), Rand Paul (R-Kentucky), and Jeff Merkley (D-Oregon) — wrote to Senate leadership demanding the removal of the ban, citing its “disparate impact on minorities,” among other concerns.

“I think there’s a growing recognition of the hypocrisy and unfairness of our nation’s drug laws, when hundreds of thousands of Americans are behind bars for something that is now legal in nine states and something that two of the last three Presidents have admitted to doing,” Booker told POLITICO Magazine. “If we truly want to be a just and fair nation, marijuana legalization must be accompanied by record expungement and a focus on restorative justice.”...

[The] once-radical notion that felons ought to gain priority for entry into a newly legal industry — instead of being shut out — has quietly gained bipartisan support on Capitol Hill, albeit not among Republican leadership.  In the House, this mounting opposition to the continuing punishment of felons first cropped up in September when the Judiciary Committee passed its first pro-marijuana bill.  It would expand access to scientific study of the cannabis plant, a notion agreed-upon by marijuana’s supporters and detractors alike.  However, Democrats almost killed the bill because it included language that barred felons (and even people convicted of misdemeanors) from receiving licenses to produce the marijuana.

Felon bans are commonplace in legal marijuana programs.  Every state has some version of it, but most of them have a five- or 10-year limit.  But the felon bans in both the Senate’s Farm Bill and the House’s marijuana research bill are lifetime bans, and the House bill includes misdemeanors, too. “Any restriction on misdemeanors goes in the exact contrary direction of the Second Chance Act,” said Rep. Jerry Nadler (D-New York), who will become chairman of the Judiciary Committee in January.  His criticism was echoed by Steve Cohen (D-Tennessee), who sought to have the misdemeanor language struck from the bill until its sponsor, Matt Gaetz (R-Florida), promised to address that language when it comes to the House floor.

In the Senate, the movement to protect the legal marijuana trade has taken the form of the proposed bipartisan Gardner-Warren STATES Act, which would maintain the status quo of federal non-interference of state-legal programs that was upended when then-Attorney General Jeff Sessions repealed the Cole Memo, an Obama-era document that outlined a hands-off approach to state-legal programs.  Booker’s Marijuana Justice Act would adopt California-style principles and apply them federally, going far beyond the STATES Act, removing marijuana from Schedule I (defined as having no medical value and a high risk of abuse) and eliminating criminal penalties for marijuana.  But unlike other pro-marijuana bills, it would also deny federal law-enforcement grants to states that don’t legalize marijuana; direct federal courts to expunge marijuana convictions; and establish a grant-making fund through the Department of Housing and Urban Development for communities most affected by the War on Drugs.

Booker’s bill has become popular among Senate Democrats.  Ron Wyden, Kirsten Gillibrand, Bernie Sanders, Kamala Harris, Jeff Merkley and Elizabeth Warren have signed on as co-sponsors — a list that looks a lot like a lineup of presumed candidates for the 2020 Democratic presidential primary.  “For too long, the federal government has propped up failed and outdated drug policies that destroy lives,” Wyden told POLITICO Magazine.  “The War on Drugs is deeply rooted in racism.  We desperately need to not only correct course, but to also ensure equal justice for those who have been disproportionately impacted. People across America understand and want change. Now, Congress must act.”

Recent polling shows that Americans agree with Wyden — to a point.  There is a widespread acceptance of legalizing marijuana.  Gallup has been tracking this number since 1969, when only 12 percent of Americans believed in legalizing it; in October, Gallup put the number at 64 percent, the highest ever number recorded.  Pew says it is 62 percent, also its highest number ever. 

But there is far less acceptance of the idea that the War on Drugs has had an adverse impact on poorer, minority communities, or that there should be some form of compensation in terms of prioritized access to the new industry. A  poll conducted by Lake Research Partners, a progressive DC-based polling firm, earlier this year on the “Politics of Marijuana Legalization in 2018 Battleground Districts” found that 62 percent of the 800 likely voters surveyed agreed with the idea “we need legalization to repair the financial and moral damage of the failed War on Drugs.”  However, when the pollsters added a racial component to this message — whether the respondents felt that the marijuana prohibition “unfairly target[s] and destroy[s] minority communities” — only 40 percent found that message to be “very convincing.”...

[M]any members of the Congressional Black Caucus have been slow to support marijuana legalization. But the CBC finally made its position on this issue clear in June when its 48-member caucus voted in an “overwhelming majority” to support policies beyond mere decriminalization: “Some of the same folks who told African Americans ‘three strikes and you’re out’ when it came to marijuana use and distribution, are now in support of decriminalizing the drug and making a profit off of it,” CBC Chairman Cedric L. Richmond, Democrat from Louisiana said at the time. “The Congressional Black Caucus supports decriminalizing marijuana and investing in communities that were destroyed by the War on Drugs…” 

Arguments for legalizing marijuana haven’t been entirely persuasive to sway many in the conservative black community, but re-framing it in the context of civil rights has brought many around to this new way of thinking. “What is moving conservative black and brown folks is this idea that we’re on the horizon of marijuana legalization,” according to Queen Adesuyi of the Drug Policy Alliance. “So the idea is in order to do this in a way that is equitable and fair, you have to start on the front end of alleviating racially biased consequences of prohibition while we’re legalizing — and that means expungement, re-sentencing, community re-investment, and looking at where marijuana tax revenue can go, and getting rid of barriers to the industry.”

Now that Democrats have won control of the House, co-founder of the Cannabis Caucus, Rep. Earl Blumenauer (D-Oregon), is poised to implement his blueprint for how the House under Democratic leadership would legalize marijuana at the federal level.  Racial justice is front-and-center in that plan.  The memo he sent to Democratic leadership reads in part, “committees should start marking up bills in their jurisdiction that would responsibly narrow the marijuana policy gap — the gap between federal and state marijuana laws — before the end of the year. These policy issues… should include: Restorative justice measures that address the racial injustices that resulted from the unequal application of federal marijuana laws.”

Cross-posted at Marijuana Law, Policy and Reform.

"Women’s Mass Incarceration: The Whole Pie 2018"

The Prison Policy Initiative has today posted an updated version of its remarkable incarceration "pie" graphic and associated report on the particulars of who and how women are incarcerated in the United States.  Here is part of the report's introductory text and subsequent discussion:

With growing public attention to the problem of mass incarceration, people want to know about women’s experience with incarceration.  How many women are held in prisons, jails, and other correctional facilities in the United States?  And why are they there?  How is their experience different from men’s?  While these are important questions, finding those answers requires not only disentangling the country’s decentralized and overlapping criminal justice systems, but also unearthing the frustratingly hard to find and often altogether missing data on gender.

This report provides a detailed view of the 219,000 women incarcerated in the United States, and how they fit into the even broader picture of correctional control.  This 2018 update to our inaugural Women’s Whole Pie report pulls together data from a number of government agencies and calculates the breakdown of women held by each correctional system by specific offense.  The report, produced in collaboration with the ACLU’s Campaign for Smart Justice, answers the questions of why and where women are locked up:

In stark contrast to the total incarcerated population, where the state prison systems hold twice as many people as are held in jails, incarcerated women are much more evenly split between state prisons and local jails.  This has serious consequences for incarcerated women and their families.

Women’s incarceration has grown at twice the pace of men’s incarceration in recent decades, and has disproportionately been located in local jails.  The explanation for exactly what happened, when, and why does not yet exist because the data on women has long been obscured by the larger scale of men’s incarceration....

Looking at the big picture shows that a staggering number of women who are incarcerated are not even convicted: a quarter of women who are behind bars have not yet had a trial.  Moreover, 60% of women under local control have not been convicted of a crime and are awaiting trial....

Avoiding pre-trial incarceration is uniquely challenging for women.  The number of unconvicted women stuck in jail is surely not because courts are considering women, who are generally the primary caregivers of children, to be a flight risk.  The far more likely answer is that incarcerated women, who have lower incomes than incarcerated men, have an even harder time affording cash bail.  When the typical bail amounts to a full year’s income for women, it’s no wonder that women are stuck in jail awaiting trial....

So what does it mean that large numbers of women are held in jail — for them, and for their families?  While stays in jail are generally shorter than in stays in prison, jails make it harder to stay in touch with family than prisons do.  Phone calls are more expensive, up to $1.50 per minute, and other forms of communication are more restricted — some jails don’t even allow real letters, limiting mail to postcards.  This is especially troubling given that 80% of women in jails are mothers, and most of them are primary caretakers of their children.  Thus children are particularly susceptible to the domino effect of burdens placed on incarcerated women....

Too often, the conversation about criminal justice reform starts and stops with the question of non-violent drug and property offenses.  While drug and property offenses make up more than half of the offenses for which women are incarcerated, the chart reveals that all offenses — including the violent offenses that account for roughly a quarter of all incarcerated women — must be considered in the effort to reduce the number of incarcerated women in this country. This new data on women underlines the need for reform discussions to focus not just on the easier choices but on the policy changes that will have the most impact....

Even the “Whole Pie” of incarceration above represents just one small portion (17%) of the women under correctional supervision, which includes over a million women on probation and parole.  Again, this is in stark contrast to the general incarcerated population (mostly men), where a third of all people under correctional control are in prisons and jails.

Michelle Alexander frets about "The Newest Jim Crow"

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

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

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

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

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

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

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

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

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

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

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

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

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

"The Biased Algorithm: Evidence of Disparate Impact on Hispanics"

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

Algorithmic risk assessment holds the promise of reducing mass incarceration while remaining conscious of public safety.  Yet presumptions of transparent and fair algorithms may be unwarranted. Critics warn that algorithmic risk assessment may exacerbate inequalities in the criminal justice system’s treatment of minorities.  Further, calls for third party auditing contend that studies may reveal disparities in how risk assessment tools classify minorities. A recent audit found a popular risk tool overpredicted for Blacks.

An equally important minority group deserving of study is Hispanics.  The study reported herein examines the risk outcomes of a widely used algorithmic risk tool using a large dataset with a two-year followup period. Results reveal cumulative evidence of (a) differential validity and prediction between Hispanics and non-Hispanics and (b) algorithmic unfairness and disparate impact in overestimating the general and violent recidivism of Hispanics. 

Latest analysis and discussion of Ohio criminal justice reform ballot initiative known as Issue 1

I have blogged here and elsewhere about the interesting and intricate drug sentencing and prison reform initiative on the November 2018 ballot in Ohio.  Originally called the "Neighborhood Safety, Drug Treatment and Rehabilitation Amendment," the initiative now is just known within Ohio as Issue 1.  The Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law has been hosting public panels about Issue 1 under the title Ballot Insights, and has created a Resources Page for Issue 1 and a Commentary Page on Issue 1. 

The last pre-election DEPC public panel on Issue 1 is taking place tomorrow, November 1 at 10 am (register here), at the Kirwan Institute for the Study of Race and Ethnicity at The Ohio State University.  The all-star panelists who will be speaking are:

• Sarah Andrews, Director, Ohio Criminal Sentencing Commission
• Alex Kreit, Professor, Thomas Jefferson School of Law; visiting professor at The Ohio State University Moritz College of Law
• Carol O’Brien, Delaware County Prosecutor
• Reginald Wilkinson, President, Connecting the Dots, LLC; former Director of the Ohio Department of Rehabilitations and Corrections

Kyle Strickland, Senior Legal Research Associate at the Kirwan Institute will be moderating this great panel. I know Kyle will also be bringing an informed perspective to the discussion because he is a co-author of this great new report titled "Race & Criminal Justice: Ohio Issue 1 and Beyond."  Here is part of the conclusion of that report: 

Many communities are rightfully asking the question of why is the opiate epidemic the catalyst for modern criminal justice reform?  At the core of this question is the notion that broad-sweeping reform efforts are much more politically feasible when the issue also impacts communities with privileged identities — whether that be race, economic status, or party affiliation.  In the future, we should not wait for collective tipping points to address systemic inequities because policies that disproportionately harm marginalized communities harm us all.

Now that reform efforts are in motion, it is critical that a racial lens be applied to policies moving forward.  A reduction in racial disparities in the criminal justice system should not be an assumed outcome of reform.  Disparate outcomes will likely re-emerge in the health care system, community based corrections, and all other institutions without intentional effort paid to undoing our legacy of racism and discrimination.  A more equitable system will require explicit interventions to address systemic discrimination and interpersonal biases at every level.

Regardless of the outcome in November, communities must demand that those implementing Issue 1 or other criminal justice reform efforts be held accountable to reducing racial disparities and repairing the intergenerational harm caused by mass incarceration and decades of disinvestment.

Prior related posts:

• Interesting and intricate Ohio drug sentencing initiative poised to qualify for November 2018 ballot 
• Ohio gubernatorial candidate talking up criminal justice reform while advocating for state constitutional drug sentencing initiative
• Events and resources covering Ohio sentencing and prison reform ballot initiative known now as Issue 1 
• Excited to hear Shon Hopwood speak about earned prison credit as Ohio considers ballot initiative known now as Issue 1
• Despite fear-mongering opposition ads, drug sentencing and prison reform initiative polling strong in Ohio
• Should a state judge be campaigning against a state criminal justice reform initiative when talking to potential jurors?!?!?

Guest post series on Chicago "stash-house sting" litigation: Part 3 on "A Path for Future Litigation"

In this prior post, I explained that Alison Siegler, Clinical Professor of Law and Director of the University of Chicago Law School's Federal Criminal Justice Clinic (FCJC), sent me an extraordinary update on the extraordinary litigation her clinic has done in response to so-called "stash house stings" in which federal agents lure defendants into seeking to rob a (non-existent) drug stash-house.  (In this post last year, I highlighted this lengthy Chicago Tribune article, headlined "ATF sting operation accused of using racial bias in finding targets, with majority being minorities," providing an overview on this topic.)  As explained in the prior post, Alison's update is so detailed and interesting, I have divided it into three posts to cover all she has to report.  The first post covered "Sentencing Victories," the second covered "Legal Victories" and this final one set out "A Path for Future Litigation":

A Path for Future Litigation

The new legal standards forged by these three courts of appeals [discussed in this prior post] make it markedly easier for criminal defendants to obtain discovery in support of racially selective law enforcement claims, which in turn makes it possible for defendants to win motions to dismiss on the merits.

The lower discovery standard also supports a lower merits standard for motions to dismiss for racially selective law enforcement than the standard set in Armstrong.  Under Armstrong, a defendant must provide “clear evidence” of discriminatory effect and discriminatory intent to prevail on a selective prosecution claim on the merits.  Armstrong, 517 U.S. at 465.  As Sellers notes, the Supreme Court explicitly rested that merits standard on “the presumption that prosecutors ‘properly discharged their official duties.’” Sellers, 2018 WL 4956959 at *6 (quoting Armstrong, 517 U.S. at 464).  Courts have made clear that such a presumption simply does not apply in the selective law enforcement context.  See, e.g., Davis, 793 F.3d at 721; Washington, 869 F.3d at 220–21; Sellers, 2018 WL 4956959 at *6.  Accordingly, there is no basis for applying the “clear evidence” standard to a motion to dismiss for selective law enforcement.  Instead, courts should apply the ordinary preponderance of the evidence standard.

In our Motions to Dismiss, the FCJC asked the district court judges to apply a preponderance of the evidence standard rather than a clear evidence standard.  See, e.g., Defendants’ Amended Reply in Support of Motion to Dismiss for Racially Selective Law Enforcement at 2­–4, United States v. Brown, 12-CR-632 (N.D. Ill. Nov. 6, 2017) (Dkt. No. 630).  Although the only judge to issue a merits ruling rejected our proposed lower standard, see Brown, 299 F. Supp. 3d at 995–97, Sellers supports the FCJC’s position that the standard for obtaining dismissal based on a selective enforcement claim must be less onerous than the merits standard for a selective prosecution claim.

Lawyers in other jurisdictions can use the litigation and precedents discussed above and in Parts 1 and 2 of this guest post series to fight race discrimination by law enforcement in their own cases.  Here are a few ideas:

• Hire experts and gather data about racial disparities created by law enforcement in fake stash house robbery cases, gun cases, and others.
• Litigate motions to obtain discovery regarding selective law enforcement in stash house cases and others, and ask district court judges to apply the lower evidentiary standard set by the Seventh, Third, and Ninth Circuits.
  • Appeal denials of selective enforcement discovery motions and advocate for other courts of appeals to adopt the lower discovery standard.
• Litigate motions to dismiss for selective law enforcement in stash house cases and others, and ask district court judges to apply a preponderance of the evidence standard rather than a clear evidence standard.
  • Appeal denials of such motions to dismiss and advocate for other courts of appeals to adopt a preponderance of the evidence standard on the merits.
• Use the plea agreements in the Chicago cases to advocate to U.S. Attorney’s Offices to dismiss mandatory minimum charges in fake stash house robbery cases.
• Use the example of the Chicago U.S. Attorney’s Office to convince other USAOs to cease bringing fake stash house robbery cases altogether.
• Use the time served sentences imposed in the Chicago cases to advocate for lower sentences in stash house cases elsewhere. Sentencing memoranda prepared by the Federal Criminal Justice Clinic in several of the Chicago cases can be found at these links:
• U.S. v. Alexander, 11-CR-148—Sentencing Memorandum (redacted):  Mr. Alexander was originally facing a 25-year mandatory minimum and sentencing as a career offender. He was released on bond in 2016. In 2018, he was sentenced to 68 months’ time served.
• U.S. v. Cousins, 12-CR-865—Memorandum Opposing Leadership Role Enhancement:  Mr. Cousins was originally facing a 25-year mandatory minimum. He was released on bond in 2015. In 2018, the judge declined to impose a leadership role enhancement and sentenced him to 28 months’ time served.
• U.S. v. Mayfield, 15-CR-497—Sentencing Memorandum:  (Mr. Mayfield was originally convicted at trial and sentenced to 26 years in prison. The verdict was reversed on appeal. In 2018, he was sentenced to 114 months’ time served.)

Prior related posts:

• Guest post series on Chicago "stash-house sting" litigation: Part 1 on "Sentencing Victories"
• Guest post series on Chicago "stash-house sting" litigation: Part 2 on "Legal Victories"

"Who Locked Us Up? Examining the Social Meaning of Black Punitiveness"

The title of this post is the title of this new quasi-book review authored by Darren Lenard Hutchinson now on SSRN.  Here is its abstract:

Mass incarceration has received extensive analysis in scholarly and political debates. Beginning in the 1970s, states and the federal government adopted tougher sentencing and police practices that responded to rising punitive sentiment among the general public.  Many scholars have argued that U.S. criminal law and enforcement subordinate people of color by denying them political, social, and economic well-being.  The harmful and disparate racial impact of U.S. crime policy mirrors historical patterns that emerged during slavery, Reconstruction, and Jim Crow.

In his Pulitzer Prize-winning book Locking Up Our Own: Crime and Punishment in Black America, James Forman, Jr. demonstrates that many blacks supported aggressive anticrime policies that gave rise to mass incarceration.  On the surface, this observation potentially complicates arguments that conceive of U.S. criminal law and enforcement as manifestations of white supremacist political power.  Forman’s failure to provide a comprehensive analysis of the racist dimensions of punitive sentiment makes his research subject to such an interpretation.  A deeper analysis, however, reconciles Forman’s research with antiracist accounts of U.S. crime policy. 

In particular, social psychology literature on implicit bias, social dominance orientation, and right-wing authoritarianism provides a helpful context for situating black punitive sentiment within antisubordination criminal law theory.  These psychological concepts could link punitiveness among blacks with outgroup favoritism and in-group stigma that derive from structural inequality and antiblack social stigma.  The social psychology of punitive sentiment, resilience of white supremacy, and conservative political ideology will likely present substantial barriers to the merciful approach to criminality that Forman proposes.

Guest post series on Chicago "stash-house sting" litigation: Part 2 on "Legal Victories"

In this prior post, I explained that Alison Siegler, Clinical Professor of Law and Director of the University of Chicago Law School's Federal Criminal Justice Clinic, sent me an extraordinary update on the extraordinary litigation her clinic has done in response to so-called "stash house stings" in which federal agents lure defendants into seeking to rob a (non-existent) drug stash-house.  (In this post last year, I highlighted this lengthy Chicago Tribune article, headlined "ATF sting operation accused of using racial bias in finding targets, with majority being minorities," providing an overview on this topic.)  As explained in the prior post, Alison's update is so detailed and interesting, I have divided into three posts all she has to report.  The first post covered "Sentencing Victories," and this one covers "Legal Victories":

Legal Victories

The FCJC’s stash house litigation has also changed the law in a way that makes racially selective enforcement challenges easier to litigate going forward, which in turn will result in better outcomes and lower sentences for clients around the country.  Last week, the Ninth Circuit built on the framework created in a stash house case litigated by the FCJC and became the third federal court of appeals to institute a lower standard for defendants seeking discovery regarding racially selective law enforcement.

In United States v. Davis, 793 F.3d 712 (7th Cir. 2015), a stash house case that was litigated and argued by the FCJC on appeal, the en banc Seventh Circuit became the first court of appeals in the country to relax the legal standard for defendants seeking discovery to support a race discrimination claim against law enforcement officers.  Davis eroded the onerous standard for obtaining discovery regarding racially discriminatory practices set by the Supreme Court in United States v. Armstrong, 527 U.S. 456 (1996).  Davis went to great lengths to distinguish racially selective law enforcement claims from the racially selective prosecution claim in Armstrong, holding, “[T]he sorts of considerations that led to the outcome in Armstrong do not apply to a contention that agents of the FBI or ATF engaged in racial discrimination when selecting targets for sting operations.” Davis, 793 F.3d at 721.  Davis represented a sea change in the law — for the previous 20 years, courts had routinely denied the claims of defendants seeking discovery in support of selective prosecution and selective law enforcement claims alike.

Last year, the Third Circuit joined the Seventh Circuit in drawing a distinction between the two types of claims.  See United States v. Washington, 869 F.3d 193, 216 (3d Cir. 2017). But the Third Circuit took this distinction even further, definitively eliminating two requirements that had made it virtually impossible for defendants to obtain discovery in the twenty years since Armstrong.  Specifically, Washington jettisoned both (1) the requirement under the discriminatory effect prong that defendants provide some evidence that “similarly situated persons of a different race or equal protection classification were not arrested or investigated by law enforcement,” and (2) the requirement that defendants “provide ‘some evidence’ of discriminatory intent. Id. at 221.  The Third Circuit’s elimination of these onerous standards represented an enormous development in the law of discovery for selective enforcement cases.

In United States v. Sellers, 2018 WL 4956959 (9th Cir. Oct. 15, 2018), the Ninth Circuit built on the framework created in Davis and extended in Washington.  Interestingly, the Ninth Circuit joined the Third Circuit’s holdings without emphasizing or even mentioning that those holdings had dramatically lowered the legal standard.  First, the Ninth Circuit joined the Third in eliminating the biggest barrier to proving the first prong — discriminatory effect — by holding that a defendant could obtain discovery in support of a selective enforcement claim without providing “evidence that similarly-situated individuals of a different race were not investigated or arrested.” Id. at *6.  Second, the Ninth Circuit held that a defendant need not present evidence of both discriminatory effect and discriminatory intent to obtain discovery, but may simply present “some evidence” supporting one prong or the other. Id.  Sellers thus significantly expanded district court discretion to grant discovery.  Judge Nguyen’s concurrence went still further, explaining that evidence that law enforcement was targeting neighborhoods of color is itself proof of discriminatory effect. Id. at *11 (Nguyen, J., concurring).

Prior related post:

• Guest post series on Chicago "stash-house sting" litigation: Part 1 on "Sentencing Victories"

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

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

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

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

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

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

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

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

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

Rastafarian musician gets eight-year sentence after being found with 2.89 pounds of marijuana in car

I sometimes see reporters and others suggest that personal marijuana possession and use has already become essentially de facto legal throughout the country.  This story of a sentencing in Mississippi this week, headlined "Jamaican-born musician sentenced to 8 years in prison for marijuana he legally obtained," puts the lie to this suggestion. Here are the details:

A Jamaican-born musician convicted of drug trafficking in Madison County for marijuana he said he obtained legally in Oregon for his personal use received an eight-year prison sentence without parole Monday. Madison County Circuit Judge William Chapman said Patrick Beadle, 46, of Oregon, faced a maximum 40 years in prison after a jury convicted him in July under the state's drug trafficking law.

Beadle, who performs under the name BlackFire, was charged with drug trafficking, although he said the marijuana he had with him was for his personal use and was obtained legally in Oregon where medical marijuana was legalized in 1998. Oregon voters approved recreational use of marijuana in 2014. Prosecutors admitted there was no evidence to prove Beadle was trafficking in drugs other than the amount of marijuana, 2.89 pounds, and that it was concealed in his vehicle.

Chapman departed from giving Beadle the 10 to 40 years under the drug trafficking law, but he wouldn't reduce it to simple possession because he said the jury convicted Beadle under the drug trafficking law. Chapman said Beadle would have to serve the eight year sentence day-for-day since the law doesn't allow for parole or probation....

Patrick Beadle said he has a medical marijuana card from Oregon to treat chronic pain in both knees where cartilage has worn down from his years of playing college basketball. Marijuana use is also common among Rastafarians.

Beadle said he was traveling March 8, 2017, southbound on I-55 after entering Madison County and at about 10 a.m., he was pulled over on I-55 near Canton by a Madison County deputy for the alleged traffic violation of crossing over the fog line, the painted line on the side of a roadway. He disputes the deputy's assertion that he crossed over the fog line. He said his dreadlocks and out-of-state auto tag made him a target for racial profiling....

In the Beadle case, then-Deputy Joseph Mangino found no large sums of money, drug paraphernalia or weight measuring scale to substantiate the trafficking charge. "This is not the typical defendant you see. "He is not a drug dealer," said Randy Harris, who was Beadle's trial attorney.

This lengthy (pre-sentencing) article from another local paper provides a few more details and some context about this disconcerting case:

Beadle was southbound on I-55 and had crossed from Yazoo into Madison County. A few seconds later, a Madison County sheriff’s deputy pulled him over.  A search of Beadle’s car revealed 2.8 pounds of marijuana.

Following a trial in July, a jury took 25 minutes to find him guilty of charges that could land him in prison for up to 40 years without parole.  Beadle, who is African American, and his allies say the fact that he was pulled over is a clear case of racial profiling while law enforcement officials maintain that a traffic violation led to the stop....

In Madison County, drug dispositions between 2013 and 2017 -- that is, drug charges settled in those years -- neared 1,000, based on data provided by the Administrative Office of Courts. Of those total charges, only two people were found guilty by a jury as Beadle was, Mississippi Today found.  Out of all the drug dispositions, about three in five were faced by African Americans.

That discrepancy goes up when looking only at guilty pleas.  The majority of defendants pled guilty to over 600 charges in Madison County during that timeframe. About 66 percent of those individuals were black -- though black people make up only 38 percent of the county’s population -- while 32 percent were white.

New investigation finds "women in prison are disciplined at higher rates than men"

This lengthy new NPR piece, headlined "In Prison, Discipline Comes Down Hardest On Women," reports on new media research showing women are treated particularly harshly in prisons.  Here are excerpts from the piece which should be read in full:

Across the country, women in prison are disciplined at higher rates than men — often two to three times more often, and sometimes more — for smaller infractions of prison rules.

That is the finding of an investigation by NPR and the Medill School of Journalism at Northwestern University.  We collected data from women's and men's prisons, visited five women's prisons around the country, and interviewed current and former prisoners along with past and present wardens and prison officials. We also spoke with academics and other experts.

In 13 of the 15 states we analyzed, women get in trouble at higher rates than men.  The discrepancies are highest for more minor infractions of prison rules....

In California, according to our data analysis, women get more than twice the disciplinary tickets for what's called "disrespect."  In Vermont, women are more than three times as likely as men to get in trouble for "derogatory comments" about a corrections officer or another inmate. In Rhode Island, women get more than three times the tickets for "disobedience."  And in Iowa, female prisoners were nearly three times as likely as men to get in trouble for the violation of being "disruptive."

While the infractions might seem minor, punishment for them can have significant consequences, we found. In Idaho and Rhode Island, for instance, women are more likely than men to end up in solitary confinement for violations like disobedience.

Women can lose "good conduct credits" that would shorten an inmate's sentence, causing them to spend more time behind bars.  In California, between January 2016 and February 2018, women had the equivalent of 1,483 years added to their sentences through good-credit revocations, and at a higher rate than for male prisoners, according to the data we collected.

Discipline for small infractions can also result in the loss of privileges like being able to buy food or supplies — including women's hygiene products — at the prison commissary.  Or inmates lose their visitation and phone privileges.  That can have a particular effect on women, because more than half of women in prison are the mothers of children 18 or younger.

We found a disproportionate pattern in punishment as well, with women often receiving more serious sanctions than men.  In Massachusetts, according to our analysis, 60 percent of punishments for women restricted where they could go in prison, including confinement to their cells. Men received those punishments half as often....

We asked experts why women get disciplined more for minor infractions.  They noted that prison rules were set up to control men, especially violent ones.  But that strict system of control doesn't always work for female prisoners.

One reason, researchers have increasingly come to understand, is that women typically come to prison for different reasons than do men and respond differently to prison life.  Most prison staffers, meanwhile, are not trained to understand these differences.

Women are more likely than men to come for drug and property crimes and less likely to be convicted of violent crimes. They're also less likely to be violent once they're in prison.  They're also more likely than men to have significant problems with substance abuse, to have mental health problems and to be the caregiving parent of a minor child.

"How Statistics Doomed Washington State’s Death Penalty"

The title of this post is the title of this new commentary at The Atlantic by Garrett Epps.  Here is an excerpt (with links from the original):

Last week, the Washington Supreme Court, in a fairly pointed opinion, declared that, at least in its jurisdiction, numbers have real meaning.  And to those who have eyes to see, numbers make clear the truth about death-sentencing: It is arbitrary and racist in its application.

The court’s decision was based on two studies commissioned by lawyers defending Allen Gregory, who was convicted of rape and murder in Tacoma, Washington, in 2001 and sentenced to death by a jury there. The court appointed a special commissioner to evaluate the reports, hear the state’s response, and file a detailed evaluation.  The evidence, the court said, showed that Washington counties with larger black populations had higher rates of death sentences—and that in Washington, “black defendants were four and a half times more likely to be sentenced to death than similarly situated white defendants.” Thus, the state court concluded, “Washington’s death penalty is administered in an arbitrary and racially biased manner” — and violated the Washington State Constitution’s prohibition on “cruel punishment.”

The court’s opinion is painstaking — almost sarcastic — on one point: “Let there be no doubt — we adhere to our duty to resolve constitutional questions under our own [state] constitution, and accordingly, we resolve this case on adequate and independent state constitutional principles.”  “Adequate and independent” are magic words in U.S. constitutional law; they mean that the state court’s opinion is not based on the U.S. Constitution, and its rule will not change if the nine justices in Washington change their view of the federal Eighth Amendment.  Whatever the federal constitutionality of the death penalty, Washington state is now out of its misery.  

 Last spring, a conservative federal judge, Jeffrey Sutton of the Sixth Circuit, published 51 Imperfect Solutions: States and the Making of American Constitutional Law,  a book urging lawyers and judges to focus less on federal constitutional doctrine and look instead to state constitutions for help with legal puzzles.  That’s an idea that originated in the Northwest half-a-century ago, with the jurisprudence of former Oregon Supreme Court Justice Hans Linde.  It was a good idea then and it’s a good idea now.  State courts can never overrule federal decisions protecting federal constitutional rights; they can, however, interpret their own state constitutions to give more protection than does the federal Constitution.  There’s something bracing about this kind of judicial declaration of independence, when it is done properly.

Prior related posts:

• Washington Supreme Court strikes down state's death penalty based on its arbitrary administration
• Eager for a "51 Imperfect Solutions" approach to a new wave of constitutional proportionality litigation (with broadside Harmelin attacks, too)

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

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

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

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

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

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

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

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

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

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

Prior related post:

• Washington Supreme Court strikes down state's death penalty based on its arbitrary administration 

Washington Supreme Court strikes down state's death penalty based on its arbitrary administration

I am on road and so unable to read or comment on this big unanimous opinion. I hope to be able to do so before too long.

UPDATE:  Here is how the opinion for the court in Washington v. Gregory starts and ends:

Washington's death penalty laws have been declared unconstitutional not once, not twice, but three times.  State v. Baker, 81 Wn.2d 281, 501 P.2d 284 (1972); State v. Green, 91 Wn.2d 431, 588 P.2d 1370 (1979); State v. Frampton, 95 Wn.2d 469, 627 P.2d 922 (1981).  And today, we do so again.  None of these prior decisions held that the death penalty is per se unconstitutional, nor do we.  The death penalty is invalid because it is imposed in an arbitrary and racially biased manner. While this particular case provides an opportunity to specifically address racial disproportionality, the underlying issues that underpin our holding are rooted in the arbitrary manner in which the death penalty is generally administered.  As noted by appellant, the use of the death penalty is unequally applied — sometimes by where the crime took place, or the county of residence, or the available budgetary resources at any given point in time, or the race of the defendant.  The death penalty, as administered in our state, fails to serve any legitimate penological goal; thus, it violates article I, section 14 of our state constitution....

Under article I, section 14, we hold that Washington's death penalty is unconstitutional, as administered, because it is imposed in an arbitrary and racially biased manner.  Given the manner in which it is imposed, the death penalty also fails to serve any legitimate penological goals.  Pursuant to RCW 10.95.090, "if the death penalty established by this chapter is held to be invalid by a final judgment of a court which is binding on all courts in the state, the sentence for aggravated first degree murder ... shall be life imprisonment."  All death sentences are hereby converted to life imprisonment.

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

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

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

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

"'You Miss So Much When You’re Gone': The Lasting Harm of Jailing Mothers Before Trial in Oklahoma"

The title of this post is the title of this big new report produced by Human Rights Watch and the ACLU. Here is part of the report's starting summary:

Every day in Oklahoma, women are arrested and incarcerated in local jails waiting — sometimes for weeks, months, a year, or more — for the disposition of their cases.  Most of these women are mothers with minor children.

Drawing from more than 160 interviews with jailed and formerly jailed mothers, substitute caregivers, children, attorneys, service providers, advocates, jail officials, and child welfare employees, this report shows how pretrial detention can snowball into never-ending family separation as mothers navigate court systems and insurmountable financial burdens assessed by courts, jails, and child welfare services....

While most women admitted to jails are accused of minor crimes, the consequences of pretrial incarceration can be devastating.  This report finds that jailed mothers often feel an added, and unique, pressure to plead guilty so that they can return home to parent their children and resume their lives.  These mothers face difficulties keeping in touch with their children due to restrictive jail visitation policies and costly telephone and video calls.  Some risk losing custody of their children because they are not informed of, or transported to, key custody proceedings.  Once released from jail, they are met with extensive fines, fees, and costs that can impede getting back on their feet and regaining custody of their children.

Women are the fastest growing correctional population nationwide and since the 1990s, Oklahoma has incarcerated more women per capita than any other US state.  Local jails (which typically house people prior to conviction, sentenced to short periods of incarceration, or awaiting transfer to prisons for longer sentences) are a major driver of that growth.  On a single day, the number of women in jails across the US has increased from approximately 8,000 in 1970 to nearly 110,000 in 2014, a 1,275 percent increase, with rural counties accounting for the largest growth rate. Many times more are admitted to jail over the course of a year.

The growth in women’s incarceration also means growth in the number of jailed mothers, which has doubled since 1991.  Nationwide, more than 60 percent of women in prisons and nearly 80 percent of women in jails are mothers with minor children.  A study conducted by the US Bureau of Justice Statistics reported that a majority of incarcerated mothers lived with and were the sole or primary caretaker of minor children prior to their incarceration.

This means that when mothers go to jail or prison, their children are more likely not to have a parent left at home, and can either end up with other relatives or in foster care. One in 14 children in the US, or nearly six million children, have had a parent behind bars, which researchers identify as an adverse childhood experience associated with negative health and development outcomes.  Children of color are disproportionately impacted by parental incarceration, with one in 9 Black children having had an incarcerated parent compared to one in 17 white children.

Jailed mothers are often dealing with a myriad of issues prior to their incarceration, which is why comprehensive support is essential to keep families together, disrupt cycles of incarceration, and to preserve human rights to liberty, due process, equal protection, and family unity.  Losing contact with and custody of their minor children should not be a consequence of arrest and criminal prosecution.

While nationally and in Oklahoma the rate of women’s incarceration is garnering increasing attention, many barriers to achieving necessary reforms remain.

Human Rights Watch and the ACLU urge Oklahoma and other states to require the consideration of a defendant’s caretaker status in bail and sentencing proceedings, expand alternatives to incarceration, facilitate the involvement of incarcerated parents in their children’s lives and proceedings related to child custody, and substantially curb the imposition of fees and costs, which can impede reentry and parent-child reunification.

US Sentencing Commission releases new report on application of mandatory minimum penalties specific to federal identity theft offenses

Via email, I learned that the US Sentencing Commission has released another big report as part of its terrific series of recent reports diving into the application of federal mandatory minimum sentencing provisions.  This latest report is titled "Mandatory Minimum Penalties for Federal Identity Theft Offenses," and its basic coverage and key findings are outlined on this USSC webpage.  Here are excepts from the summary:

This publication examines the application of mandatory minimum penalties specific to identity theft offenses. Using fiscal year 2016 data, this publication includes analyses of 18 U.S.C. § 1028A, which provides for a two-year mandatory minimum penalty, as compared to identity theft offenses that do not carry mandatory minimum penalties, as well as the impact of these offenses on the Federal Bureau of Prisons (BOP) population....

Key Findings

Mandatory minimum penalties for identity theft offenses are applied less often in the federal system compared to other mandatory minimum penalties.

Offenders convicted under section 1028A comprised only 1.6 percent (n=978) of federal offenders sentenced in fiscal year 2016....

The percentage of identity theft offenders convicted under section 1028A has steadily increased, more than doubling from 21.9 percent in fiscal year 2006 to 53.4 percent in fiscal year 2016. This percentage is more than ten percentage points higher than reported in the Commissions 2011 Mandatory Minimum Report, when it was 42.6 percent....

Sentences imposed pursuant to section 1028A are longer than sentences imposed for identity theft offenses not carrying a mandatory minimum penalty.

In fiscal year 2016, the average sentence length for offenders convicted of at least one count under section 1028A was more than double the average sentence length for offenders convicted of an identity theft offense not carrying a mandatory minimum penalty (51 months compared to 22 months)....

In addition, other charging and plea decisions also play a role in the application and impact of identity theft mandatory minimum penalties....

The average sentence for offenders who were convicted under section 1028A and another statute was more than double the average sentence for offenders convicted only under section 1028A (54 months compared to 22 months)....

The section 1028A mandatory minimum penalty impacts Black offenders more than any other racial group.

Black offenders were convicted under section 1028A at a higher rate than any other racial group. In fiscal year 2016, Black offenders represented 49.8 percent of all identity theft offenders, yet accounted for 58.7 percent of offenders convicted under section 1028A....

Black offenders were also convicted under section 1028A at the highest rate when considering identity theft offenders within each racial group.  In fiscal year 2016, a majority (63.1%) of Black identity theft offenders were convicted under section 1028A, which was higher than the rate for White offenders (47.8%), Other Race offenders (42.0%), and Hispanic offenders (41.1%).

Black offenders were also most likely to be convicted of multiple counts under section 1028A, comprising 58.5 percent of such offenders, followed by White offenders (25.5%), Hispanic offenders (13.2%), and Other Race offenders (2.8%).

Because I do not follow this area of federal sentencing all that closely, I do not know just what to make of the racial data reported here. But I must admit to being persistently discouraged by criminal justice data that persistently shows more application of our toughest penalties against persons of color.

"Judged for More Than Her Crime: A Global Overview of Women Facing the Death Penalty"

The title of this post is the title of this new report from the Cornell Center on the Death Penalty Worldwide. Here are excerpts from its executive summary:

We estimate that at least 500 women are currently on death rows around the world. While exact figures are impossible to obtain, we further estimate that over 100 women have been executed in the last ten years — and potentially hundreds more.  The number of women facing execution is not dramatically different from the number of juveniles currently on death row, but the latter have received a great deal more attention from international human rights bodies, national courts, scholars, and advocates.

This report aims to shed light on this much-neglected population.  Few researchers have sought to obtain information about the crimes for which women have been sentenced to death, the circumstances of their lives before their convictions, and the conditions under which they are detained on death row.  As a result, there is little empirical data about women on death row, which impedes advocates from understanding patterns in capital sentencing and the operation of gender bias in the criminal legal system.  To the extent that scholars have focused on women on death row, they have concluded that they are beneficiaries of gender bias that operates in their favor. While it is undeniable that women are protected from execution under certain circumstances (particularly mothers of infants and young children) and that women sometimes benefit from more lenient sentencing, those that are sentenced to death are subjected to multiple forms of gender bias.

Most women have been sentenced to death for the crime of murder, often in relation to the killing of family members in a context of gender-based violence.  Others have been sentenced to death for drug offenses, terrorism, adultery, witchcraft, and blasphemy, among other offenses. Although they represent a tiny minority of all prisoners sentenced to death, their cases are emblematic of systemic failings in the application of capital punishment....

Our research also indicates that women who are seen as violating entrenched norms of gender behavior are more likely to receive the death penalty. In several cases documented in this report, women facing the death penalty have been cast as the “femme fatale,” the “child murderer,” or the “witch.”  The case of Brenda Andrew in the United States is illustrative. In her capital trial, the prosecution aired details of her sexual history under the guise of establishing her motive to kill her husband.  The jury was allowed to hear about Brenda’s alleged extramarital affairs from years before the murder, as well as details about outfits she wore.  The trial court also permitted the prosecutor to show the underwear found in the suitcase in her possession after she fled to Mexico, because it showed that she was not behaving as “a grieving widow, but as a free fugitive living large on a Mexico beach.”  As one Justice of the Court of Criminal Appeals of Oklahoma noted, Brenda was put on trial not only for the murder of her husband but for being “a bad wife, a bad mother, and a bad woman.”...

Our country profiles aim to provide a snapshot of women facing the death penalty in several major regions of the world.  The stories of women on death row provide anecdotal evidence of the particular forms of oppression and inhumane treatment documented in this report.  It is our hope that this initial publication, the first of its kind, will inspire the international community to pay greater attention to the troubling plight of women on death row worldwide.

Office of Inspector General assails how federal Bureau of Prisons manages female prisoners

As reported in this Washington Times piece, "A critical shortage of correctional officers plaguing the nation’s prison system is having a disparate effect on female inmates, a government watchdog said Tuesday." Here is more about the report and reactions to it:

The Justice Department’s inspector general, Michael E. Horowitz, concluded the dearth of trained prison employees is restricting the access of female prisoners to necessary care and services. “The lack of sufficient staff is most noticeable at larger female institutions,” Mr. Horowitz wrote in a report....

The report also concluded that 90 percent of the female inmate population would benefit from trauma treatment, but staffing shortages make it nearly impossible to provide eligible inmates with the care they need, according to the report....

Kara Gotsch, director of Strategic Initiatives at the Sentencing Project, said she was “not shocked” by the inspector general’s findings. “There is a staffing shortage system-wide,” she said.  “But staff shortages are more complicated with women prisoners because it’s compounded when you have male correctional officers in positions where women are required to do the strip searches.”

The inspector general recommended the Bureau of Prisons improve the allocation of staff across the country’s correctional facilities and ensure that all staffers have received proper training.  In a response attached to the report, Hugh Hurwitz, acting director for the Federal Bureau of Prisons, said he agrees with the inspector general’s recommendations and vowed to improve both staffing and training.  “The BOP will determine the appropriate level of staffing that should be allocated to the Women and Special Populations Branch, based on an analysis of its broad mission and responsibilities,” Mr. Hurwitz wrote.

Ms. Gotsch said the best solution to the issue is sentencing reform to reduce the number of women incarcerated for low-level offenses.  “We are putting too many women in prison for low-level offenses for too long,” she said.  “There is never enough money in the federal budget to adequately care for prisoners if we have significant overcrowding and maintain these high levels of incarceration.”

The full 60-page OIG report is titled "Review of the Federal Bureau of Prisons’ Management of Its Female Inmate Population," and it is available at this link.  Here is a paragraph from its introduction:

We concluded that BOP has not been strategic in its management of female inmates.  We determined that BOP needs to take additional steps at the Central Office level to ensure that female inmate needs are met at the institution level.  Our review identified instances in which BOP’s programming and policy has not fully considered the needs of female inmates, which has made it difficult for inmates to access certain key programs and supplies.  Further, while BOP is adhering to federal regulations and BOP policies requiring that only female Correctional Officers conduct strip searches of female inmates, BOP’s method for ensuring compliance with these requirements assigns staff inefficiently.  Finally, we found that BOP’s conversion of Federal Correctional Institution (FCI) Danbury to house male inmates negatively affected certain female inmates who had been housed there.

ACLU Campaign for Smart Justice launches "Smart Justice 50-State Blueprints"

As detailed in this ACLU press release, titled "Smart Justice Blueprints Launch With 24 State Reports And Interactive Web Tool, Remaining 27 To Be Rolled Out In Coming Months," the folks at the ACLU have an interesting new set of state-focused national resources advocating for criminal justice reform. Here are portions of the press release:

The American Civil Liberties Union’s Campaign for Smart Justice today unveiled the Smart Justice 50-State Blueprints, a comprehensive, state-by-state analysis of how states can transform their criminal justice system and cut incarceration in half.

The Smart Justice 50-State Blueprints are the first-ever analysis of their kind and will serve as tools for activists, advocates, and policymakers to push for transformational change to the criminal justice system.  They are the result of a multi-year partnership between the ACLU, its state affiliates, and the Urban Institute to develop actionable policy options for each state that capture the nuance of local laws and sentencing practices.

The 51 reports — covering all 50 states and the District of Columbia — will be released in multiple phases, beginning with an initial rollout of 24 state reports.  The reports are all viewable on an interactive website that allows users to visualize the reductions in jail and prison population that would result from the policy decisions that states pursue.  The interactive feature is here.

Each blueprint includes an overview of the state’s incarcerated populations, including analysis on who is being sent to jail and prison and the racial disparities that are present, what drives people into the system, how long people spend behind bars, and why people are imprisoned for so long.  The blueprints offer a calculation on the impact of certain reforms by 2025 on racial disparities in the prison population, fiscal costs, and overall prison population.  They also show precisely how a 50 percent decarceration goal could be achieved.

While more than 2 million people are behind bars in the United States, only about 10 percent are in federal prisons. Approximately 90 percent of the people incarcerated in the United States are held in local jails and in state prisons.  “Mass incarceration is a nationwide problem, but one that is rooted in the states and must be fixed by the states,” said Udi Ofer, director of the ACLU Campaign for Smart Justice.  “We hope that the Smart Justice 50-State Blueprints provide necessary guideposts for activists and policymakers as they pursue local solutions that will address the stark racial disparities in our criminal justice system and dramatically reduce their jail and prison populations.  Some of the reforms contained in the blueprints are readily achievable, while others are going to require audacious change. But all are needed to prioritize people over prisons.”

The state reports provide a snapshot of how reformers cannot take a one-size-fits-all approach to ending mass incarceration.  For example, in Louisiana, because more than one in three people admitted to prison in 2016 were convicted of property offenses and 30 percent of all admissions were for drug offenses, one road that Louisianans could take for reducing their prison population would be reclassifying drug and many property offenses as misdemeanors rather than felonies.

In Pennsylvania, the number of people entering prison for parole violations grew by 56 percent between 2006 and 2016, suggesting that the state’s decarceration strategy should include the improvement of parole and release policies and the implementation of reforms that would drive down the number of people sent to prison due to supervision violations.

Finally, in Michigan, 16 percent of prison admissions are for drug offenses, and a majority of the people (74 percent) imprisoned in Michigan are serving time for offenses involving violence. Thus, to reduce significantly the prison population in Michigan, policymakers must focus more heavily on transforming the way the criminal justice system responds to offenses like robbery and assault, which lead to sentences that have become harsher and longer over the past decade.

The website and the reports were created by utilizing a forecasting tool developed by the Urban Institute, which can be viewed here.

"Judging Risk"

The title of this post is the title of this article authored by Brandon Garrett and John Monahan now available via SSRN. Here is its abstract:

Risk assessment plays an increasingly pervasive role in criminal justice in the United States at all stages of the process — from policing, to pre-trial, sentencing, corrections, and parole.  As efforts to reduce mass incarceration have led to adoption of risk-assessment tools, critics have begun to ask whether various instruments in use are valid and whether they might reinforce rather than reduce bias in the criminal justice system.  Such work has largely neglected how decisionmakers use risk assessment in practice.  In this Article, we explore the judging of risk assessment.  We study why decisionmakers so often fail to consistently use quantitative risk assessment tools.

We present the results of a novel set of studies of both judicial decisionmaking and attitudes towards risk assessment.  We studied Virginia because it was the first state to incorporate risk assessment in sentencing guidelines.  Virginia has been hailed as a national model for doing so.  In analyzing sentencing data in Virginia, we find that judicial use of risk assessment is highly variable.  Second, in the first comprehensive survey of its kind, we find judicial attitudes towards risk assessment in sentencing practice quite divided.  Even if, in theory, an instrument can better sort offenders in less need of jail or prison, in practice, decisionmakers may not use it as intended.

Still more fundamentally, in criminal justice, unlike in other areas of the law, one typically does not have detailed regulations concerning the use of risk assessment, specifying the content of assessment criteria, the peer review process, and standards for judicial review.  We make recommendations for how to better convey risk assessment information to judges and other decisionmakers, but also how to structure that decisionmaking based on common assumptions and goals.  We argue that judges and lawmakers must revisit the use of risk assessment in practice.  We conclude by setting out a roadmap for use of risk information in criminal justice.  Unless judges and lawmakers regulate the judging of risk assessment, the risk revolution in criminal justice will not succeed in addressing mass-incarceration.

"Incapacitating Motherhood"

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

Incapacitation, the removal of dangerous people from society, is one of the most significant penal rationales in the United States.  Mass incarceration emerged as one of the most striking applications of this theory, as policymakers shifted from rehabilitative efforts toward incapacitation in jails and prisons across the country . Women have been uniquely devastated by this shift toward incapacitation.  Indeed, the United States is home to the largest and fastest growing women’s prison population in the world.

Of the women incarcerated in jails and prisons, nearly seventy percent were the primary caretakers of small children at the time of their arrest and approximately eighty percent are of reproductive age. Notwithstanding these alarming trends, the gendered dimensions of incapacitation have largely been underexplored in the scholarly literature. Rather, women’s incarceration has been theorized as an unintended consequence of the punitiveness directed toward Black men.

This Article aims to bridge this discursive gap by highlighting the specific ways in which incapacitation has been used as a means to regulate the bodies and reproductive capacities of marginalized women.  The Article advances this claim in three ways. First, by mapping the historical function of women’s prisons as a mechanism to restore and regulate “fallen women” who deviated from traditional norms associated with femininity and motherhood.  Second, by examining the ways in which contemporary women’s prisons similarly regulate women’s identities as mothers.  Instead of attempting to rehabilitate women, however, contemporary women’s prisons incapacitate women who engage in behavior or possess characteristics that diverge from traditional maternal norms.  Indeed, through what the Article terms the “incapacitation of motherhood,” women prisoners are alienated from their children, denied reproductive care, humiliated during pregnancy and postpartum recovery, and in some cases, sterilized. 

Lastly, contesting these practices and the incapacitation of motherhood, this Article calls for the use of a robust legal framework, informed by the principles of reproductive justice that are more protective of the reproductive capacities of incarcerated women.

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

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

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

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

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

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

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

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

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

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

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

New research finds racial bias infects sex-offender classification system under SORNA

A helpful reader made sure I did not miss this Crime Report piece headlined "Sex Offender Registration Influenced by Racial Bias, Ohio Study Claims." Here are excerpts:

The classification of sex offenders based on the risks they pose to the community following their release from prison is subject to racial bias, according to a study published in the Criminal Justice Policy Review.  African-American sex offenders were found to be two-and a half times likelier to be inaccurately designated as high-risk than their Caucasian counterparts by a state-sponsored risk-assessment instrument, said the study, which was based on a sample of 673 sex offenders in the state of Ohio who were convicted of a sex crime and released between 2009 and 2011.

Risk assessments that were overly weighted towards prior criminal records led to the skewed assessments, argued the authors, Bobbie Ticknor of Valdosta State University, and Jessica J. Warner of Miami University Regionals.  “Approximately 85 percent of the individuals classified in the highest tier, who theoretically posed the greatest danger, did not have a conviction for a new sex offense after the five-year follow up period,” the study found, adding that 15 percent of “Tier 1” offenders were under-classified, meaning their threat-level was underestimated.

The sample was limited to offenders who had received a classification under the Sex Offender Registration and Notification Act (SORNA) system established by the 2006 Adam Walsh Child Protection and Safety Act.  The law established guidelines aimed at protecing communities from convicted sex offenders who might pose continued threats to their community following release. SORNA is an offense-based classification system where offenders are assigned to one of three tiers according to “dangerousness.”  Tier designation is determined by prior offenses and the severity of the charge and conviction.... 

The reason why racial bias may influence the accuracy of SORNA designations lies in the fact that SORNA relies heavily on the criminal history of an individual, said the authors. The study cites prior research which produced evidence that “black defendants are less likely to accept a plea deal due to mistrust in the system…”  Going to trial increases the chances of being found guilty of more severe charges and receiving lengthier sentences, especially for minority defendants, according to the authors.

The study being discussed here is available at this link and is published under the title "Evaluating the Accuracy of SORNA: Testing for Classification Errors and Racial Bias." Here is its abstract:

Since its enactment in 2006, several researchers have explored whether the Sex Offender Registration and Notification Act (SORNA) classification system under the Adam Walsh Act improves outcomes such as increasing public safety and lowering recidivism of sexual offenders.  This study adds to the growing body of literature by exploring how accurate this offense-based classification system is in terms of recidivism and if there is any racial bias in tier designation.

Specifically, results from contingency analyses suggest that several sex offenders are overclassified, meaning that they were given a classification status that included more supervision and oversight although they did not commit another offense. Furthermore, African Americans were two-and-a-half times more likely to be overclassified than Caucasians which suggests racial bias may exist in this government-sponsored classification system.  Implications for communities and the continued use of the SORNA are presented.

High-profile drug arrest of billionaire addict spotlights issues of what is "trafficking" and who is a "victim" and "recidivist"

A high-profile drug arrest in Las Vegas late last week presents a high-profile setting to explore all of the legal uncertainty that necessarily surrounds the modern drug war.  This CBS/AP story, headlined "Tech billionaire Henry Nicholas facing drug trafficking counts in Vegas," provides some of the basics:

Tech billionaire and advocate of crime victims Henry T. Nicholas III is facing drug counts after being arrested along with a woman Tuesday at a Las Vegas Strip casino-resort. Nicholas was arrested on suspicion of trafficking heroin, cocaine, meth and ecstasy, Las Vegas police officer Larry Hadfield said Thursday. He added police responded to the casino-resort following a report from security, which had found contraband in a room [this local piece provides more details of the search and seizures]....

The woman arrested with Nicholas was identified as Ashley Fargo, reportedly the ex-wife of an heir to the Wells Fargo fortune. Hadfield said she faces the same counts as Nicholas. Court records show she has also been released on her own recognizance. Records for the pair show a court hearing scheduled for September.

Attorney and legal analyst Alex Kazarian tells CBS Los Angeles it's likely Nicholas didn't intend to traffic drugs -- but his intent may not matter. "It sounds like his biggest crime is being an addict," Kazarian said. "He's a billionaire. He's not a person that's trying to make money off of drugs. He's a person that's trying to make friends off of drugs. Unfortunateley, the way the laws are written, if you're giving away drugs or if you're selling drugs, you're trafficking."

Nicholas co-founded high-tech chipmaker Broadcom Corp. in 1991 and resigned as president and CEO in 2003. In 2008, he was indicted on narcotics and securities fraud charges. The charges in the securities case were dismissed in 2009 and the narcotics case in 2010.

The billionaire is an advocate for crime victims and has bankrolled ballot measures in the U.S. to guarantee them and their family members some rights. The so-called "Marsy's Law" victims' bill of rights is named after Nicholas' sister, Marsalee "Marsy" Nicholas, a California college student who was stalked and killed in 1983 by an ex-boyfriend.

Five states - California, Ohio, Illinois, North Dakota and South Dakota - have a Marsy's Law on their books.... In Nevada, Marsy's Law will appear on the ballot in November as a legislatively referred constitutional amendment, after the measure was approved during the 2015 and 2017 legislative sessions, as required by law. Nevada Attorney General Adam Laxalt, Clark County Sheriff Joe Lombardo and Clark County District Attorney Steve Wolfson have previously endorsed the measure.

As people who work in the drug policy and reform space know well, the dividing line between being a "drug possessor" and a "drug trafficker" can often be a thin one and this story seems to effectively highlight this reality. Moreover, given the extraordinary work that Nicholas has done to promote victim involvement in the criminal justice system, this case provides an interesting setting to explore who can and should be able to claim to be a victim of a "drug trafficker."  In addition, here are some more details about Nicholas's prior involvement with drug charges from this local piece:

In a 2008 federal indictment, Nicholas was accused of possessing and conspiring to distribute drugs, including ecstasy, cocaine and methamphetamine. According to federal court records, he was accused of distributing and using drugs on a private flight between Orange County and Las Vegas, “causing marijuana smoke and fumes to enter the cockpit and requiring the pilot flying the plane to put on an oxygen mask.”  The charges against him were dropped in 2010, court records show.

Because charges were drop in the prior case, Nicholas would not qualify as a repeat drug offender subject to recidivist sentencing enhancements. But I cannot help but wonder why and how prior federal drug distribution charges were dropped against him, while also thinking somebody else might get labelled a serious drug offender with this kind of history without Nicholas's legal good fortunes so far.

Prison Nurseries?

I'll be back tomorrow blogging about the war on kids, but I wanted to share this NBC news story about prison nurseries.

According to the piece, there are eight prison nurseries in the United States, and as the number of women in prison has exploded in recent years, their existence raises several interesting questions. Is separation from one's infant a just part of a sentence? Does that sentence inflict more harm on the child than the mother? Is it safe/desirable/cost-effective to allow mothers and infants to remain in prison together? More here:

Bedford Hills has the nation’s longest-running prison nursery. Opened in 1901, it has allowed hundreds of women who have started their sentences pregnant to bond with their babies while behind bars — something advocates say is best for babies and lowers the mothers’ recidivism rate, but some critics argue violates the children’s constitutional rights using taxpayer money, while placing a burden on prison staff by requiring them to double as day care workers.

Bedford Hills is one of eight prison nurseries in the United States. The number of such programs has fluctuated as funding and sentiment toward them has risen and fallen, but now, more than ever, their effectiveness is under scrutiny as the number of women behind bars has skyrocketed.

There are nearly 214,000 women incarcerated in the U.S. — an increase of more than 700 percent since 1980, according to nonprofit The Sentencing Project. There is no official count of how many of these women give birth while imprisoned.

In most prisons, when a woman gives birth, her baby is taken away within 48 to 72 hours and sent to either a relative or foster care. Prison nursery supporters say that keeping newborns with their moms, even behind bars — while not a perfect solution — is better than any alternative.

 

The War on Kids Post #2

In my last post, I addressed the irony of America inventing the juvenile court and then both exporting that concept to the world and abandoning it domestically. Today I want to unpack the realities of my claim that there has been a war on kids since the late 20^th century. Let me acknowledge that, to some readers, the concept of a war on kids in America today may sound misguided or dramatic. After all, educators complain of helicopter parents and so-called free-range parents may face prosecution for granting their children liberties that were commonplace in my childhood. However, even as some children in America are more coddled and protected than ever before, I stand by my claim that the U.S. has waged a war on kids.

This is what the war on kids looks like. On any given day, there are approximately 50,000 juveniles being held in American correctional facilities, thousands of whom are in adult jails and prisons. While some hold themselves out as camps, academies or training facilities, these are correctional institutions; 89% of them are locked and many employ handcuffs, leg cuffs and restraining chairs, as well as solitary confinement. At the same time, we are not reserving detention for the most serious juvenile offenders. Nearly a quarter of youth in juvenile facilities have only been charged with a technical probation violation or a status offense. Schools, with police officers in the halls and zero-tolerance policies on the books, have become a gateway to the criminal justice system. In at least 22 states it’s a crime to disrupt school in ways that may have earned a student a trip to the principal’s office a few decades ago. Preschoolers, yes, preschoolers, can face suspension and expulsion for age-appropriate behaviors. This is deeply problematic, as suspensions, especially repeated ones, increase a student’s risk of dropping out of school and coming into contact with the criminal justice system.

Moreover, as I mentioned in my first post this week, our laws have cemented the notion that kids, once accused of a crime, may be treated as adults. Prosecutors routinely remove kids from juvenile court and charge them in adult court on the basis of the legal fiction of transfer laws. Youth in adult court are subject to mandatory sentences that today many of us would agree are too harsh even as applied to adults. Juveniles can be housed in adult correctional facilities, despite being the most vulnerable to physical and sexual assault in those locations. Until 2005 we were the only nation to execute people for juvenile offenses, and today we are the only developed nation in the world that still sentences children to die in prison.

Perhaps most discouraging, the war on kids has taken its greatest toll on the nation’s most vulnerable kids – those in poor, minority areas that are under-resourced and heavily policed. Black youth are more than twice as likely as white youth to be arrested, and, even as overall youth detention rates continue to decline, black youth are five times as likely as white youth to be detained. Similarly, poverty shunts children into the criminal justice system who would never be there if they had the financial resources to pay for private counsel, a diversion program, or even an ankle bracelet. Finally, when one looks at youth serving the most extreme sentence on the books, life without parole, approximately half were physically abused and nearly 80 percent witnessed violence in the home. Thus, like most wars, the war on kids has had its greatest impact on poor, minority and otherwise vulnerable communities.

In my next post, I’ll address recent Supreme Court decisions regarding juvenile sentencing and their implementation at the state level.

"Procedural Justice and Risk-Assessment Algorithms"

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

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

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

A father's perspective on clemency and its potential (and limits)

A helpful reader alerted me to this interesting new commentary authored by John Owen, headlined "A father's plea for mercy for his imprisoned daughter."  Here are excerpts:

President Donald Trump’s recent pardons and commutations have spotlighted, once again, the importance of executive clemency to soften the harshness of our criminal justice system.  President Abraham Lincoln was famous for preferring mercy over “strict justice.”  In fact, he used his clemency power so liberally, his attorney general had to assign someone to shadow him to record the names of all those he pardoned or commuted, according to author Margaret Love....

That’s how executive clemency is supposed to work.  It operates outside our rule of law, but it also respects it. It is the personal prerogative of the leader and so, inevitably, can be arbitrary.  It is also a message to our branches of government and to our society to mitigate our desire for vengeance with compassion....

I have spent the past nine years grieving the almost 20-year sentence imposed on my daughter, Mary Anne Locke, for her low-level, non-violent role in a meth distribution conspiracy.  She was ordered to report to federal prison in 2009, six weeks after she had a Cesarean section.  Along with her baby, she left behind a loving husband and two other children.

Mary Anne did not have an easy life, and I accept the role I played in that.... In her early teens, Mary Anne found drugs and men who were themselves substance abusers and also physically violent....  She relapsed at age 28, triggered by personal tumult, as well as health problems for which she was prescribed amphetamines. It was around this time that she became involved with the head of the meth conspiracy charged in her federal case. He gave her an unlimited supply of meth and, in return, embroiled her in a supportive capacity in his drug distribution activities.

Pregnant with her second child in 2007, Mary Anne again disavowed the drug lifestyle.  The indictment in her federal case was handed down in 2008, when she was pregnant with her third child, after two years of sobriety and a wonderful marriage with her then husband, who had no connection with her drug activities. She cooperated fully upon arrest, at considerable risk to herself.

Imagine our family’s devastation when she was sentenced to 234 months, or 19.5 years.  Murderers get less time. Although nationally, statistics indicate that defendants with her characteristics would receive an almost 50 percent reduction of their applicable guideline, the judge gave her just a 20 percent reduction.  Mary Anne was not the kingpin or organizer. She never engaged in or threatened any violence.  She played a supportive role to fund her addiction.  She had never spent more than a night in custody.  She is precisely the kind of low-level player deserving of leniency.

Rather, her sentence was driven by the charging decisions of the prosecutors she faced and the particular sentencing philosophy of her judge.  This judge has been critiqued as one of the harshest in the country.  In fact, she is the only sitting judge to have been subject to a commutation by Trump (the 27-year sentence of Sholom Rubashkin).  Moreover, today, not only would another judge give Mary Anne an almost 50 percent reduction of her applicable guideline, Mary Anne’s sentencing guideline would be substantially lower....

Needless to say, Mary Anne has served the top end of that guideline.  And she has done so with distinction.  She has been an exemplary prisoner — discipline-free, who has worked and studied consistently throughout her sentence, completing her final year in a three-year college program in office administration.  Don’t get me wrong.  Mary Anne broke the law and deserved punishment.  But her lengthy sentence violates any basic notions of justice and proportionality.  She deserves mercy.

She applied for clemency before President Barack Obama, and has again applied before President Trump.  She was represented in both applications by the Clemency Project at the University of Minnesota Law School.  I am a lifelong Republican. I am, however, forever grateful to Obama for bringing executive clemency back to its roots — to address systemic unfairness, while also acknowledging the humanity of each person behind bars.  I am also buoyed by Trump’s recent clemency decisions, and his pronouncements that he plans to use it even more expansively.

But nothing beats a legislative solution that grants my daughter — and the thousands of prisoners like her — a “second look” at the severity and fairness of their sentence, in a public proceeding, with a judge and an advocate.

"McCleskey V. Kemp: Field Notes from 1977-1991"

The title of this post is the title of this notable paper authored by John Charles Boger available now via SSRN. Here is its abstract:

This Essay is an expanded version of a keynote address to a Symposium hosted by the Northwestern University School of Law.  It examines the handiwork of the Supreme Court in the McCleskey v. Kemp (1987) case and the adverse impact of McCleskey on the subsequent judicial consideration of statistical evidence -- even of widespread racial discrimination -- in the capital and criminal justice systems. 

As one member of the legal team who brought the McCleskey case, my contribution was to speculate on how and why the Court might have disregarded such meticulously documented and unrebutted patterns of racial disparities in capital sentencing, despite the Justices’ formal condemnation of racial discrimination in principle and their occasional intervention to curb particularly egregious acts of racial injustice.  This Essay ends by encouraging social scientists and legal scholars to continue to uncover and oppose patterns of racial discrimination that remain widespread in the administration of criminal justice.

Interesting new Quick Facts report from US Sentencing Commission on "Women in the Federal Offender Population"

I am so pleased to see and to be able to report that the US Sentencing Commission is continuing to produce a steady stream of its insightful little data documents in its terrific series of reader-friendly "Quick Facts" publications.  Regular readers may recall from this prior post, roughly five years ago, the USSC started putting out these publications as a way to "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format."

This month brings this new Quick Facts on "Women in the Federal Offender Population," and here are just a few data tidbits from the document that caught my attention:

• Females make up a small percentage of federal offenders. The proportion of federal offenders who were women decreased slightly from 13.3% in fiscal year 2013 to 13.1% in fiscal year 2017.

• More than two-thirds of female offenders (68.0%) had little or no prior criminal history (i.e., assigned to Criminal History Category I).

• Weapons were involved less frequently (6.1%) in cases involving women than in cases involving men (10.1%).

• More than three-quarters (76.9%) of female offenders were sentenced to imprisonment, which is less than the rate for male offenders in fiscal year 2017 (93.8%).

• For each of the past five years, female offenders were sentenced within the guideline range in less than half of all cases (40.2% in fiscal year 2013 and 36.6% in fiscal year 2017), compared to 49.8% and 49.2% for male offenders.

• The average sentence imposed slightly increased over the last five years, from 27 months in fiscal year 2013 to 28 months in fiscal year 2017.

"Police, Race, and the Production of Capital Homicides"

The title of this post is the title of this new paper now available via SSRN and authored by Jeffrey Fagan and Amanda Geller. Here is the abstract:

Racial disparities in capital punishment have been well documented for decades.  Over 50 studies have shown that Black defendants more likely than their white counterparts to be charged with capital-eligible crimes, to be convicted and sentenced to death.  Racial disparities in charging and sentencing in capital-eligible homicides are the largest for the small number of cases where black defendants murder white victims compared to within-race killings, or where whites murder black or other ethnic minority victims.  These patterns are robust to rich controls for non-racial characteristics and state sentencing guidelines.

This article backs up the research on racial disparities to an earlier stage of capital case processing: the production of capital-eligible cases beginning with the identification of potential defendants by the police.  It seeks to trace these sentencing disparities to examining earlier stages in the processing of homicides. Using data from the FBI’s Supplementary Homicide Reports, we examine every homicide reported between 1976 and 2009, and find that homicides with white victims are significantly more likely to be “cleared” by the arrest of a suspect than are homicides with minority victims.  We estimate a series of hierarchical regressions to show that a substantial portion of this disparity is explained by social and demographic characteristics of the county in which homicides take place.  Most notably, counties with large concentrations of minority residents have lower clearance rates than do predominantly white counties; however, county characteristics do not fully explain the observed race-of-victim disparities.  Our findings raise equal protection concerns, paving the way for further research into the production of capital homicides and the administration of the death penalty.

"Supreme Irrelevance: The Court's Abdication in Criminal Procedure Jurisprudence"

The title of this post is the title of this new paper authored by Tonja Jacobi and Ross Berlin now available via SSRN. Here is the abstract:

Criminal procedure is one of the Supreme Court’s most active areas of jurisprudence, but the Court’s rulings are largely irrelevant to the actual workings of the criminal justice system.  The Court’s irrelevance takes two forms: objectively, on the numbers, its jurisprudence fails to protect the vast majority of people affected by the criminal justice system; and in terms of salience, the Court has sidestepped the major challenges in the United States today relating to the criminal justice system.  These challenges include discrimination in stops and frisks, fatal police shootings, unconscionable plea deals, mass incarceration, and disproportionate execution of racial minorities.

For each major stage of a person’s interactions with the criminal justice system — search and seizure, plea-bargaining, and sentencing — the Court develops doctrines that protect only a tiny percentage of people.  This is because the Court focuses nearly all of its attention on the small fraction of cases implicating the exclusionary rule, trial rights, and the death penalty, and it ignores the bulk of real-world criminal procedure — searches and seizures that turn up no evidence of crime, plea bargains that occur outside of the courtroom, and the sentencing of convicts for terms of years — leaving constitutional rights unrecognized and constitutional violations unremedied.  Consistently, each issue the Supreme Court neglects has a disparate impact on traditionally disadvantaged racial minorities.  Together, this constitutes an abdication of the Court’s responsibility.

Fascinating accounting of prosecutorial role in considerable racial disparity in Florida sentencing

Back in 2016, as highlighted in this post, the Sarasota Herald-Tribune published an extraordinary series of articles in examining disparities in Florida's sentencing system under the heading "Bias on the Bench."  The paper now, working with the Florida Times-Union, has this new remarkable series under the headline "Influence & Injustice: An Investigation Into The Power Of Prosecutors."  Here is part of the lead article:

Academics and judges argue that prosecutors are the most powerful players in the criminal justice system and most to blame for bias.  But at 34 and just three years out of law school in 2016, was Bustamante really responsible for locking up black defendants for nearly quadruple the time of whites?

The Herald-Tribune and Times-Union set out to answer this question by measuring the influence of other players in the criminal justice system on cases prosecuted by Bustamante.  Those players include two powerful judges she appeared before; her former boss, Angela Corey — regarded as one of the toughest state attorneys in the nation; the Jacksonville Sheriff’s Office, which heavily polices minority communities; and residents of the city’s black neighborhoods, notorious for gun violence....

Reporters and editors spent at least 500 hours over three months opening more than 3,500 felony drug cases by hand.  The result is a first-of-its-kind spreadsheet tracking Bustamante and 22 other prosecutors based on the race of defendants, points scored under Florida’s sentencing guidelines, time spent behind bars and other factors such as possession of guns or resisting arrest.

From these records, the newspapers created two sentencing indexes: one that measures leniency and another that calculates harsh punishment.  Those indexes reveal that 43 percent of white drug defendants in Duval County were shown some sort of leniency in 2015 and 2016.  That rate falls to 27 percent for blacks.

When it comes to punitive sentences, the trend flips.  Fifteen percent of blacks received severe sentences, according to the index.  That compares to 10 percent of whites.

Judge Aaron Persky recalled by voters in response to lenient sentencing of Brock Turner

As reported in this Fox News piece, "Northern California residents on Tuesday voted to recall the judge who sentenced a former Stanford University swimmer convicted of sexual assault to a short jail sentence instead of prison." Here is more:

Voters opted to oust Santa Clara County Judge Aaron Persky. He was targeted for recall in June 2016 shortly after he sentenced Brock Turner to six months in jail for sexually assaulting a young woman outside a fraternity house on campus. Prosecutors argued for a 7-year prison sentence. Turner was instead sentenced to six months in jail for sexually assaulting a young woman outside a fraternity house on campus. Critics say Turner's sentece was too lenient.

Persky maintained that he had followed a recommendation from the county probation department. The California Commission on Judicial Performance ruled that the case was handled legally.

The case gained national prominence after the victim read a statement in court before Turner's sentence. The statement made the rounds online and was read on the floor of the U.S. Capitol during a congressional session.... Michele Dauber, a Stanford University professor who led the recall effort, said the election "expresses clearly that sexual assault, sexual violence is serious and it has to be taken seriously by elected officials.” She added: "It's a historical moment when women across all sectors of society are standing up saying enough is enough."

Persky's supporters said his removal set a dangerous precedent. LaDoris Cordell, a former Santa Clara County judge who led a counter campaign against the recall, called the decision "a sad day for the California judiciary." Cordell added, that the vote implies if judges don't concede to popular opinion, "they can lose their job."

Persky has served on the court since 2003. He declined The Associated Press' request for comment late Tuesday. Assistant District Attorney Cindy Hendrickson will serve the last four years of Persky's term, the San Francisco Chronicle reported.

I suppose it is fitting that a local judge recalled for a sentence being too lenient gets replace by a local prosecutor.  Regular readers know there have been lots and lots of prior posts here about the Brock Turner case, including posts in which I expressed various concerns about both the lenient sentence Turner received and about the campaign to recall Persky.  Here is a sampling of the prior posts this case has generated:

• Lots of seemingly justifiable outrage after lenient California sentencing of privileged man convicted of three felony counts of sexual assault
• Lots more mainstream and new media commentary on lenient sentencing of Stanford sex assaulter
• NY Times debates "Should an Unpopular Sentence in the Stanford Rape Case Cost a Judge His Job?"
• "The Stanford rape case demonstrates liberal hypocrisy on issues of basic fairness in the criminal justice system"
• Juror involved in trial of Stanford swimmer Brick Turner assails sentence given for sexual assault convictions
• Considering the potential negative consequences of the Stanford rape sentencing controversy and judge recall effort
• California legislators introduce bill seeking to mandate that any future Brock Turners face three-year minimum prison terms
• "Race, Privilege, and Recall: Why the misleading campaign against the judge who sentenced Brock Turner will only make our system less fair" 
• "Put Away The Pitchforks Against Judge Persky" 
• Judicial panel concludes judge committed no misconduct in the sentencing of Brock Turner 
• "Brock Turner: Sorting Through the Noise" 
• "I was Raped. And I Believe The Brock Turner Sentence Is a Success Story." 
• Lots worth reading on eve of historic recall vote of Califorinia Judge Aaron Persky after his lenient treatment of Brock Turner

Lots worth reading on eve of historic recall vote of Califorinia Judge Aaron Persky after his lenient treatment of Brock Turner

Regular readers surely already know a lot of the story and backstory surrounding the controversial sentencing of Brock Turner and the controversial recall campaign against the judge who sentenced him.  That recall campaign culminates in a vote this coming Tuesday, and that has prompted another notable round of media coverage.  Here are some recent media pieces with varying degrees of depth:

From CNN here, "Will voters bench the judge who gave a 6-month sentence in the Stanford sexual assault case?"

From the Los Angeles Times here, "Vandalism, threats, broken friendships: The heated campaign to recall judge in Brock Turner case"

From Vox here, "Brock Turner was sentenced to 6 months in jail for sexual assault. Now voters may recall the judge."

From HuffPost here, "When the Punishment Feels Like A Crime: Brock Turner's twisted legacy — and a Stanford professor's relentless pursuit of justice."

I would especially encourage readers to find the time to read the lengthy HuffPost piece, which is particularly focused around Stanford Law Professor Michele Dauber's work on the recall campaign.  The reporting in the piece stuck me as particularly thoughtful and balanced, and I learned new things big and small about the campaign and her efforts and goals.

Despite all this new reporting, I must note my own sense that there are still lots of angles on this case that are still not getting fully explored.  In particular, these articles and others only give passing mention of the fact that Turner was sentenced to a lifetime on the sex offender registry.  I have long speculated that this reality — which I believe was mandatory for his convictions — not only may have largely accounted for Judge Persky's short jail sentence, but also may have been a main reason Turner was unwilling to plead guilty and accept responsibility in the way the victim wished.  Ever since BuzzFeed published the full courtroom statement of Turner's victim (available here and recommended reading), I have always been struck by this passage: "Had Brock admitted guilt and remorse and offered to settle early on, I would have considered a lighter sentence, respecting his honesty, grateful to be able to move our lives forward. Instead he took the risk of going to trial, added insult to injury and forced me to relive the hurt as details about my personal life and sexual assault were brutally dissected before the public."   This passage still has me wondering about what kind of plea had been offered to Turner and whether the prospect of a lifetime on the sex offender registry was central to his decision to go to trial.

The CNN article linked above does make one (possibly overstated) point about the sex offender registry part of his punishment: "That's a penalty so burdensome that if Turner were to have children someday, he wouldn't be able to get near their school."  Of course, being on the registry for life means a whole lot more, too.  I continue to wonder not only if that reality influenced Judge Persky, but if other judges in California or around the nation regularly adjust their prison terms knowing the severe impact of the collateral consequences of sex offender registration.  I hear stories all the time of prosecutors and defense attorneys looking to "charge or plea around" particular crimes that carry sex offender registration or other severe collateral consequences.  If these collateral sanctions influence attorneys, surely they influence sentencing judges in various settings in various ways.  I would love to see more reporting on this element of the Turner case and Judge Persky's decision-making (recalling that Persky himself has been a state sex crimes prosecuot).  But perhaps only a sentencing nerd like me really cares all that much about this part of the story. 

In any event, readers can gear up for the recall election also by reviewing a number of prior posts here about the Brock Turner case.  I think it is fair to say that in these posts I have expressed various concerns about both the lenient sentence Turner received and about the campaign to recall Judge Persky.  Here is just a sampling of the prior posts this case has generated:

• Lots of seemingly justifiable outrage after lenient California sentencing of privileged man convicted of three felony counts of sexual assault
• Lots more mainstream and new media commentary on lenient sentencing of Stanford sex assaulter
• NY Times debates "Should an Unpopular Sentence in the Stanford Rape Case Cost a Judge His Job?"
• "The Stanford rape case demonstrates liberal hypocrisy on issues of basic fairness in the criminal justice system"
• Juror involved in trial of Stanford swimmer Brick Turner assails sentence given for sexual assault convictions
• Considering the potential negative consequences of the Stanford rape sentencing controversy and judge recall effort
• California legislators introduce bill seeking to mandate that any future Brock Turners face three-year minimum prison terms
• "Race, Privilege, and Recall: Why the misleading campaign against the judge who sentenced Brock Turner will only make our system less fair" 
• "Put Away The Pitchforks Against Judge Persky" 
• Judicial panel concludes judge committed no misconduct in the sentencing of Brock Turner 
• "Brock Turner: Sorting Through the Noise" 
• "I was Raped. And I Believe The Brock Turner Sentence Is a Success Story." 

"Equal Protection Under the Carceral State"

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

McCleskey v. Kemp, the case that upheld the death penalty despite undeniable evidence of its racially disparate impact, is indelibly marked by Justice William Brennan’s phrase, “a fear of too much justice.” The popular interpretation of this phrase is that the Supreme Court harbored what I call a “disparity-claim fear,” dreading a future docket of racial discrimination claims and erecting an impossibly high bar for proving an equal protection violation. A related interpretation is that the majority had a “color-consciousness fear” of remedying discrimination through race-remedial policies.  In contrast to these conventional views, I argue that the primary anxiety exhibited by the McCleskey majority was a “leniency fear” of death penalty abolition. Opinion author Justice Lewis Powell made clear his view that execution was the appropriate punishment for McCleskey’s crime and expressed worry that McCleskey’s victory would open the door to challenges of criminal sentences more generally. 

Understanding that the Court’s primary political sensitivity was to state penal authority, not racial hierarchy, complicates the progressive sentiment that McCleskey’s call-to-action is securing equality of punishment. Derrick Bell’s “interest convergence” theory predicts that even conservatives with an aversion to robust equal protection law will accept racial-disparity evidence when in the service of crime-control values.  Indeed, Justice Powell may have been more sanguine about McCleskey’s discrimination claim had mandatory capital punishment been an option.  Accordingly, I caution that, outside of the death penalty context, courts and lawmakers can address perceived punishment disparities through “level-up” remedies, such as mandatory minimum sentences or abolishing diversion (which is said to favor white defendants).  There are numerous examples of convergence between antidiscrimination and prosecutorial interests, including mandatory sentencing guidelines, aggressive domestic violence policing and prosecution, and the movement to abolish Stand-Your-Ground laws.

"Blind Justice: Why the Court Refused to Accept Statistical Evidence of Discriminatory Purpose in McCleskey v. Kemp — And Some Pathways for Change"

The title of this post is the title of this new paper by Reva Siegel recently posted to SSRN.  Here is its abstract:

In McCleskey v. Kemp, the Supreme Court refused to accept statistical evidence of race discrimination in an equal protection challenge to the death penalty.  This lecture, on the decision’s thirtieth anniversary, locates McCleskey in cases of the Burger and Rehnquist Courts that restrict proof of discriminatory purpose in terms that make it exceedingly difficult for minority plaintiffs successfully to assert equal protection claims.

The lecture’s aims are both critical and constructive.  The historical reading I offer shows that portions of the opinion justify restrictions on evidence to protect prosecutorial discretion, while others limit proof of discrimination in ways that seem responsive to conservative claims of the era about race, rights, and courts.  Scrutinizing the Court’s reasons for restricting inferences from statistical evidence opens conversations about the principles on which McCleskey rests and the decision’s prospective reach.

A close reading of the decision has led some courts to interpret McCleskey’s restrictions on statistical evidence as a response to particular concerns raised by the record in that case, opening the door to statistical evidence of bias in other equal protection challenges in criminal cases.  At the same time, revisiting McCleskey and its progeny raises questions about the capacity of courts to redress bias in the criminal justice system.  Three decades of living with McCleskey teaches that it is important to design remedies for bias in the criminal justice system that do not depend solely on judges for their implementation.

Another helpful review of analysis of huge set of federal sentencing outcomes

In this post last week I discussed this amazing new working paper by Alma Cohen and Crystal Yang titled "Judicial Politics and Sentencing Decisions."  I am now pleased to giving attention to this research in the New York Times through this latest "Sidebar" column.  His piece is headlined "Black Defendants Get Longer Sentences From Republican-Appointed Judges, Study Finds," and here are excerpts: 

Judges appointed by Republican presidents gave longer sentences to black defendants and shorter ones to women than judges appointed by Democrats, according to a new study that analyzed data on more than half a million defendants.  “Republican-appointed judges sentence black defendants to three more months than similar nonblacks and female defendants to two fewer months than similar males compared to Democratic-appointed judges,” the study found, adding, “These differences cannot be explained by other judge characteristics and grow substantially larger when judges are granted more discretion.”...

It has long been known that there is an overall racial sentencing gap, with judges of all political affiliations meting out longer sentences to black offenders. The new study confirmed this, finding that black defendants are sentenced to 4.8 months more than similar offenders of other races. It was also well known, and perhaps not terribly surprising, that Republican appointees are tougher on crime over all, imposing sentences an average of 2.4 months longer than Democratic appointees.

But the study’s findings on how judges’ partisan affiliations affected the racial and gender gaps were new and startling.  “The racial gap by political affiliation is three months, approximately 65 percent of the baseline racial sentence gap,” the authors wrote.  “We also find that Republican-appointed judges give female defendants two months less in prison than similar male defendants compared to Democratic-appointed judges, 17 percent of the baseline gender sentence gap.”

The two kinds of gaps appear to have slightly different explanations.  “We find evidence that gender disparities by political affiliation are largely driven by violent offenses and drug offenses,” the study said.  “We also find that racial disparities by political affiliation are largely driven by drug offenses.” 

The authors of the study sounded a note of caution.  “The precise reasons why these disparities by political affiliation exist remain unknown and we caution that our results cannot speak to whether the sentences imposed by Republican- or Democratic-appointed judges are warranted or ‘right,’” the authors wrote.  “Our results, however, do suggest that Republican- and Democratic-appointed judges treat defendants differently on the basis of their race and gender given that we observe robust disparities despite the random assignment of cases to judges within the same court.”

The study is studded with fascinating tidbits.  Black judges treat male and female offenders more equally than white judges do. Black judges appointed by Republicans treat black offenders more leniently than do other Republican appointees. More experienced judges are less apt to treat black and female defendants differently.  Judges in states with higher levels of racism, as measured by popular support for laws against interracial marriage, are more likely to treat black defendants more harshly than white ones.

Prior related post:

• Amazing new empirical research in federal sentencing outcomes detailing disparities based on political background 

Amazing new empirical research in federal sentencing outcomes detailing disparities based on political background

This week brought this amazing new working paper by Alma Cohen and Crystal Yang titled simply "Judicial Politics and Sentencing Decisions." I did not want to blog about the paper until I had a chance to read it, and doing so make me want to now do dozens of blog posts to capture all the issues the paper covers and raises. The paper's simple abstract provides a hint of why the paper is so interesting and provocative:

This paper investigates whether judge political affiliation contributes to racial and gender disparities in sentencing using data on over 500,000 federal defendants linked to sentencing judge.  Exploiting random case assignment, we find that Republican-appointed judges sentence black defendants to 3.0 more months than similar non-blacks and female defendants to 2.0 fewer months than similar males compared to Democratic-appointed judges, 65 percent of the baseline racial sentence gap and 17 percent of the baseline gender sentence gap, respectively.  These differences cannot be explained by other judge characteristics and grow substantially larger when judges are granted more discretion.

Each of these three sentences could alone justify multiple postings on just research particulars: e.g., I believe a database with over 500,000 sentencings might be the largest ever assembled and analyzed; I wonder if the data looks different for Clinton and Obama judges among the Ds, for Nixon and Reagan and others judges among the Rs; I fear many judge characteristics like prior jobs and connections to certain communities are really hard to control for.  In other words, just the scope and methods of this research is fascinating.

Moreover and more importantly, there is great richness in the findings of the full paper.  For example, the authors find "statistically significant differences in racial gaps in base offense level and final offense level by judge political affiliation."  In other word, the authors have discovered worrisome disparities in how guideline ranges are set/calculated, not just in how judges sentence in reaction to a particular guideline range.   Some additional notable findings are summarized in this recent WonkBlog piece at the Washington Post headlined "Black defendants receive longer prison terms from Republican-appointed judges, study finds."  Here are excerpts:

Federal judges appointed by Republican presidents give black defendants sentences that are, on average, six to seven months longer than the sentences they give to similar white defendants, according to a new working paper from Alma Cohen and Crystal Yang of Harvard Law School.  That racial sentencing disparity is about twice as large as the one observed among judges appointed by Democrats, who give black defendants sentences that are three to four months longer than the sentences they give to white defendants with similar histories who commit similar crimes....

They did find, however, that the gap between sentences for black and white defendants was smaller for more-experienced judges than for less-experienced ones.  They also found that differences between how Republican and Democratic judges treat black and white defendants grew larger after the Supreme Court's 2005 decision in United States v. Booker, which gave federal judges much more leeway to depart from federal sentencing guidelines.

Importantly, however, they found that growing differences between Democratic and Republican judges in the post-Booker era are due to Democratic judges reducing disparities in how they sentence black and white defendants.  Given more discretion, in other words, Democratic judges treated defendants of different races more equally, while Republican judges continued to carry on as they had before.

Cohen and Yang also found one important geographical effect: Black defendants fared particularly poorly in states with high amounts of population-level racial bias, measured here by the percentage of white residents in a given state who believe there should be laws against interracial marriage.  These states tend to be clustered in the South, and previous research has shown a similar racial sentencing bias in these states when it comes to capital punishment.

Finally, they also observed an opposite effect in how Democratic and Republican judges treated female defendants: While all judges tended to hand down shorter sentences to women than to men charged with similar crimes, Republican judges were considerably more lenient to women.  “Overall, these results indicate that judicial ideology may be a source of the persistent and large racial and gender disparities in the criminal justice system,” Cohen and Yang conclude.

Anyone with any experience in the federal sentencing system knows full well how judicial ideology may be a source of the persistent and large disparities in the operation of the system. But reflecting on my own experiences as a defense attorney and expert in a number of federal sentencing settings, I am eager here to highlight how the impact of judicial ideology may be impacted by the work of other actors involved in the federal sentencing process. I often sense that those judges (perhaps disproportionately Republican Appointees) with an earned reputation as a "by the guideline" type may not consistently receive the same type of mitigating information from probation officers and defense attorneys as do those judges known often to depart or now vary.

If readers are as intrigued and engaged by this new paper as I am, please say so in the comments, and I may try to see if I can encourage some folks to write up some guest-postings about this research.

UPDATE: A helpful reader sent me this link to the full paper in case folks are not able to access it via the NEBR site.

Mother's Day review of moms in incarceration nation

Growing awareness and concern with incarceration levels in the US are reflected in the significant number of articles I have noticed this week discussing incarcerated mothers.  I figure Mother's Day is a fitting day to round-up some of these recent pieces:

From The Crime Report here, "Mother’s Day Behind Bars"

From Teen Vogue here, "Mother's Day Needs to Be Inclusive of Incarcerated Moms, and Here’s How You Can Help"

From USA Today here, "In remembering her own mother, activist and attorney makes Mother's Day plea for incarcerated women"

From Jezebel here, "Mothers Are Incarcerated at Record Rates, Yet Prison-Nursery Beds Go Empty"

From Leafy here, "9 Ways to Help Moms Jailed for Cannabis"

From Yahoo here, "Mom serving 16 years for marijuana pens Mother's Day letter to daughters: 'I'm dreaming of your sleepy faces'"

Sentencing Project reports on "Incarcerated Women and Girls, 1980-2016"

The Sentencing Project has this notable new fact sheet with details on modern trends in the incarceration of women and girls under the title ""Incarcerated Women and Girls, 1980-2016." Here is how it gets started:

Over the past quarter century, there has been a profound change in the involvement of women within the criminal justice system.  This is the result of more expansive law enforcement efforts, stiffer drug sentencing laws, and post-conviction barriers to reentry that uniquely affect women. The female prison population stands nearly eight times higher than in 1980.  More than 60% of women in state prisons have a child under the age of 18.  Between 1980 and 2016, the number of incarcerated women increased by more than 700%, rising from a total of 26,378 in 1980 to 213,722 in 2016.

A recent accounting of "Racial Disparities in the United States Criminal Justice System"

I just came across this notable recent publication which describes itself as a "Report of The Sentencing Project to the United Nations Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia, and Related Intolerance Regarding Racial Disparities in the United States Criminal Justice System."  The relatively short report's introduction provides a flavor for its coverage, and here are excerpts from the introduction:

African Americans are more likely than white Americans to be arrested; once arrested, they are more likely to be convicted; and once convicted, and they are more likely to experience lengthy prison sentences.  African-American adults are 5.9 times as likely to be incarcerated than whites and Hispanics are 3.1 times as likely. As of 2001, one of every three black boys born in that year could expect to go to prison in his lifetime, as could one of every six Latinos — compared to one of every seventeen white boys.  Racial and ethnic disparities among women are less substantial than among men but remain prevalent.

The source of such disparities is deeper and more systemic than explicit racial discrimination.  The United States in effect operates two distinct criminal justice systems: one for wealthy people and another for poor people and people of color.  The wealthy can access a vigorous adversary system replete with constitutional protections for defendants.  Yet the experiences of poor and minority defendants within the criminal justice system often differ substantially from that model due to a number of factors, each of which contributes to the overrepresentation of such individuals in the system.....

By creating and perpetuating policies that allow such racial disparities to exist in its criminal justice system, the United States is in violation of its obligations under Article 2 and Article 26 of the International Covenant on Civil and Political Rights to ensure that all its residents — regardless of race — are treated equally under the law.  The Sentencing Project notes that the United Nations Special Rapporteur is working to consult with U.S. civil society organizations on contemporary forms of racism, racial discrimination, and related intolerance.  We welcome this opportunity to provide the UN Special Rapporteur with an accurate assessment of racial disparity in the U.S. criminal justice system....

This report chronicles the racial disparity that permeates every stage of the United States criminal justice system, from arrest to trial to sentencing to post prison experiences.  In particular, the report highlights research findings that address rates of racial disparity and their underlying causes throughout the criminal justice system.  The report concludes by offering recommendations on ways that federal, state, and local officials in the United States can work to eliminate racial disparity in the criminal justice system and uphold its obligations under the Covenant.

Interesting new survey on crime and punishments from Vera Institute with a focus on rural Americans

This new Vera Institute blog posting by Jasmine Heiss and Jack Norton reports on an interesting new poll. The posting it titled "United Toward Justice: Urban and Rural Communities Share Concerns about Incarceration, Fairness of the Justice System, and Public Spending Priorities," and here are excerpts (with links from the original):

New polling conducted for Vera by Greenberg Quinlan Rosner Research (GQR) shows that a 67 percent majority overall agree that “building more jails and prisons to keep more people in jail does not reduce crime,” including 61 percent of rural Americans.  What’s more, neither people in rural nor urban areas across America consider crime a major problem: only 27 percent of people living in rural areas cite it as a major problem in their communities, as compared to 26 percent overall.  And people in communities of all sizes appear disinterested in spending limited taxpayer resources on prisons and jails.  Building prisons and jails ranks a distant last (35 percent) as a strategy to improve quality of life — trailing behind measures such as providing more jobs and job training (91 percent); investing more in schools and youth programs (88 percent); providing more community-based mental health treatment (86 percent) and drug and alcohol treatment (83 percent); and emphasizing community-based violence reduction programs (78 percent). (See GQR’s memo for complete details.)

Vera’s In Our Backyards research adds a human dimension to these results and anchors them in the lived experiences of communities.  In Pueblo County in Southern Colorado, for example, voters have twice rejected jail expansion.  There are competing narratives about the beliefs underlying the rejection of jail expansion.  The criminal justice stakeholders who were proponents of expansion saw the “no” vote as a reflection of most voters’ general apathy about conditions endured by the people incarcerated and working in the county jail.  But many citizens who voted against expansion saw their votes as a choice about the conditions of the community writ large. As one person who voted against expansion put it: “They need a new treatment center, not a jail. This is a poor place; there’s a drug problem like all these poor places across the country. We don’t need a new jail.”...

Residents not only disapprove of investing in newer or bigger jails and prisons — they’re also concerned about the rate at which their friends and neighbors are being locked up.  A 40 percent plurality believes that the level of incarceration in their communities is too high, as opposed to just nine percent of people who believe that it is too low.  Moreover, 66 percent of people confirmed that they would be concerned if they learned that their community had a higher rate of incarceration than similar communities in their state; 55 percent of whom would be very concerned.  In rural counties, those numbers dip only slightly to a 60 percent majority of residents who would be concerned about outsize rates of incarceration; 45 percent of whom would be very concerned.             

Misgivings about the justice system’s ability to deliver on the promise of equal justice also became clear: 55 percent of respondents agreed that the nation’s justice system discriminates against poor people.  This was affirmed by 76 percent of people who described themselves as “lower class,” and 84 percent of black Americans.

Furthermore, when asked specifically about their perceptions of judges — among the most visible actors in the local justice system — a 47 percent plurality disagreed with the statement “Local judges are fair to all people, regardless of background,” including 63 percent of black Americans.  These perceptions might be understood in tandem with the overrepresentation of black and poor Americans in the nation’s jails: despite a narrowing racial gap, black people are still 3.6 times more likely to be jailed than white people. What’s more, an estimated 80 percent of people in jail are indigent....

As the movement to reverse mass incarceration and elect reform-minded candidates continues to gain momentum, it’s clear that the same energy that has propelled America’s biggest cities toward reform is infusing small-town America.  And while the nation’s smallest communities are often overlooked, they are poised to be a force for change.