Sentencing Law and Policy

"Fatal Peril: Unheard Stories from the IPV-to-Prison Pipeline and Other Voices Touched by Violence"

The title of this post is the title of this notable new huge report from the Stanford Criminal Justice Center.  The email I received about the report explains that it examines "the prevalence and severity of intimate partner violence (IPV) in the backgrounds of women incarcerated for homicide in California."  Here is the start of the report's executive summary:

The women’s rate of incarceration in the United States has grown twice as fast as that of men in recent decades.  Research has established that many incarcerated women have histories of abuse throughout their lives, including intimate partner violence (IPV), and that this abuse may contribute to their criminalization.  Gender-based violence results in an array of negative physical and mental health consequences, with intimate partner homicide (IPH) as the most severe outcome.

For women who are arrested, convicted, and sentenced for actions like homicide arising out of their own victimization, the law generally fails to account for domestic and intimate partner violence even when this abuse is supposed to be considered as a mitigating factor.  Unfortunately, little scholarship has examined the linkage between genderbased violence and women’s experiences as defendants ensnared in a broad and powerful criminal legal system.

The overarching purpose of our project was to understand how people experiencing genderbased violence are criminalized for actions they took to survive abuse. While IPV exists for people of all genders, we focused on women given their disproportionate rates of severe and lethal intimate partner abuse.  We also centered our study on people convicted of the most serious of offenses and serving the longest sentences — murder and manslaughter.

Specific objectives were to:

 (1) Quantify the prevalence of IPV and the potential lethality of the abuse;

(2) Describe the nature of the relationship between the survivor-defendant and the decedent as it relates to the circumstances of the offense; and

(3) Identify the extent to which the criminal legal system accounts for IPV.

The lengthy reports discusses sentencing in various ways, and this passage particularly caught my eye:

Although we did not systematically ask respondents about their co-defendants’ sentences, we were able to glean some information about sentencing disparities from their narrative responses.  In some cases, respondents received higher sentences than their co-defendants for less culpable conduct because their co-defendants testified against them.  As one respondent shared, “My ex-boyfriend was the one who did the actual crime. And both of them are already out of prison. I did not participate in the actual crime.  I should have a chance to get out of prison.”  Similarly, many co-defendants took plea deals to [testify against] respondents—even if the respondent did not cause the killing.

"Public Defense Attorneys' Perception of Race and Bias: National Survey Findings"

The title of this post is the title of this recent publication from the Center for Justice Innovations (CJI) authored by Sruthi Naraharisetti. Here is how the CJI website describes the work:

Public defense attorneys play a pivotal role in addressing the racial inequities that many clients face in the criminal legal system while also experiencing the impact of those racial inequities themselves.  This exploratory study aims to illuminate how attorneys consider race in their work, conceptualize their role in addressing racial inequity, and experience the impact of their racial or ethnic identities in the workplace.

Our survey of 690 public defense attorneys reveals that race significantly influences public defense practice and culture.  Attorneys recognize racial inequities in the legal system and adapt their strategies accordingly, with notable differences between attorneys who are white and attorneys who are Black, Indigenous, or People of Color (BIPOC). White attorneys often find that race hinders their relationships with BIPOC clients, while BlPOC attorneys are more likely to report adjusting case strategies for BIPOC clients. Inequities within the profession — such as a lack of diversity among attorneys and leadership, limited opportunities for dialogue, and workplace racism — are particularly felt by BIPOC attorneys.  We hope this report will inspire reflection and discussion among public defense agencies about racial bias in the field and help pave the way to identifying and evaluating actionable solutions.

Prison Policy Initiative briefing discusses "10 ways that mass incarceration is an engine of economic injustice"

The quoted portion of this post title is the title of this new briefing published by the Prison Policy authored by Eric Seligman and Brian Nam-Sonenstein. Here is how the discussion starts:

Money is power in the United States, and mass incarceration plays a major role in determining who can wield power and who can’t.  As we’ve noted repeatedly over the years, it is no coincidence that the poorest and most vulnerable communities are also the most policed.  The criminal legal system erects significant barriers to employment and the ballot box, economically and politically weakening entire communities.  Importantly, this arrangement impacts all workers: employers use this massive class of disadvantaged people to threaten all workers with replacement and increasingly risky unemployment if they dare to demand better wages and conditions.  Mass incarceration also weaves a narrative that pits people with similar economic interests against one another, reducing systemic inequality to matters of individual choice.  Fortunately, understanding mass incarceration as the wealthy’s preferred economic policy clarifies that ending it is necessary for all movements for justice and equality — all working people benefit from solidarity with criminalized people.

In this briefing, we compile ten examples of how mass incarceration blocks progress toward economic justice.  We argue that our massive system of criminalization is not an isolated issue, nor is it someone else’s problem; it is an engine of inequality that traps people in poverty, weakens worker power, and undermines political organizing toward a more prosperous future for the vast majority of people.

"Racially Disparate and Disproportionate Punishment of Felony Murder: Evidence from New York"

The title of this post is the title of this new paper authored by Alexandra Harrington and Guyora Binder now available via SSRN. Here is its abstract:

America’s peculiar institution of felony murder liability has long been criticized as cruel and pointless, particularly as applied to defendants who did not kill.  Yet data collection practices in the criminal legal system make felony murder difficult to study empirically.  This article presents recently uncovered evidence of the racially disparate application of felony murder law, as well as increased disparities for those who have been convicted as accomplices.  This study of felony murder arrest and disposition in New York is one of the first to reach beyond dispositions to examine the behavior punished, and to thereby compare patterns in arrest, prosecution, and conviction of accused principals with accomplices not alleged to have killed. 

This study is also one of the first to report the surprising scale of liability under felony murder law for individuals who did not kill — half of all people convicted of felony murder in the years measured — as well as for people who appear to have caused death inadvertently.  It finds substantial racial disparities in arrests and convictions for felony murder compared to other forms of second-degree murder.  These disparities are starker for teens, who make up at least a quarter of the dataset.  Finally, it uncovers a shocking phenomenon: hundreds of arrests — mostly concentrated in New York City — of almost exclusively Black and Hispanic people for the fictitious crime of attempted felony murder.  In New York, it seems, the worst of felony murder is reserved for defendants of color.

Two notable new sentencing-related papers in the new issue of the Journal of Empirical Legal Studies

I received an email today from the Society for Empirical Legal Studies providing the contents of the newest isse of the Journal of Empirical Legal Studies.  This link to the September 2024 issue was also provided, and I was pleased to see therein two sentencing-related papers (which are open access as of this writing):

"The impact of legal representation in Israeli traffic courts: Addressing selection bias and generalizability problems" by Rabeea Assy & Tomer Carmel

Abstract: This study investigates the impact of legal representation on the process and outcomes of legal proceedings, focusing on Israeli traffic courts dealing with simple traffic offenses.  It finds that legal representation significantly increased defendants' prospects of obtaining plea bargains and of avoiding demerits points.  However, legally represented defendants were also exposed to higher fines compared to self-represented defendants.  Since points are typically the primary concern for defendants, we contend that legal representation improved case outcomes, overall.  Considering the simplicity of the process, the minimal legal expertise required, and the low stakes involved, the representation effect was unexpectedly robust.  This effect may potentially be even stronger in more complex cases and where the stakes are higher.  Unlike previous observational studies, this study reduces the risks associated with selection bias and produces findings that are more credible and potentially generalizable to other contexts.

"The influence of the race of defendant and the race of victim on capital charging and sentencing in California" by Catherine M. Grosso, Jeffrey Fagan & Michael Laurence

Abstract: The California Racial Justice Act of 2020 recognized racial and ethnic discrimination as a basis for relief in capital cases, expressly permitting several types of statistical evidence to be introduced.  This statewide study of the influence of race and ethnicity on the application of capital punishment contributes to this evidence.  We draw on data from over 27,000 murder and manslaughter convictions in California state courts between 1978 and 2002.  Using multiple methods, we found significant racial and ethnic disparities in charging and sentencing decisions. Controlling for defendant culpability and specific statutory aggravators, we show that Black and Latinx defendants and all defendants convicted of killing at least one white victim are substantially more likely to be sentenced to death.  We further examined the role that race and ethnicity have in decision-making at various points in the criminal justice system.  We found that prosecutors were significantly more likely to seek death against defendants who kill white victims, and that juries were significantly more likely to sentence those defendants to death.  The magnitude of the race of the defendant and race of the victim effects is substantially higher than in prior studies in other states and in single-jurisdiction research.  The results show an entrenched pattern of racial disparities in charging and sentencing that privileges white victim cases, as well as patterns of racial disparities in who is charged and sentenced to death in California courts that are the natural result of California's capacious statutory definition of death eligibility, which permits virtually unlimited discretion for charging and sentencing decisions.  This pattern of racial preferences illustrates the social costs of California's failure to follow the Supreme Court's directive in Furman v Georgia to narrow the application of capital punishment over 50 years ago.

"Race, Racial Bias, and Imputed Liability Murder"

Though posted on SSRN a few months ago, I just came across this new paper that shares a title with this post and was authored by Perry Moriearty, Kat Albrecht and Caitlin Glass. Here is its abstract:

Even within the sordid annals of American crime and punishment, the doctrines of felony murder and accomplice liability murder stand out.  Because they allow states to impose their harshest punishments on defendants who never intended, anticipated, or even caused death, legal scholars have long questioned their legitimacy.  What surprisingly few scholars have addressed, however, is who bears the brunt.  This Article is one of the first to explore the racialized impact of the two most controversial and ubiquitous forms of what we call “imputed liability murder.” 

An analysis of ten years of murder prosecutions in the state of Minnesota reveals that imputed liability murder is anything but a fringe subtype of homicide: an astounding 70% of those charged with murder during this period were charged with felony murder, accomplice liability murder, or both.  The study also shows that nearly 60% of these defendants were Black, a level of racial disproportionality that is not just intrinsically extreme; it is comparatively greater than levels of disproportionality for other types of murder.  The question is, why? 

The answer lies in part in the structural and social psychological dynamics of imputed liability murder prosecutions themselves, we claim.  By reducing prosecutors’ burden to prove the most salient legal indicia of a defendant’s culpability — mens rea, actus reus, or both — and allowing prosecutors to cast a wide and undifferentiated net around almost any homicide, the felony murder and accomplice liability murder doctrines invite prosecutors to base normative charging decisions on subjective, extra-legal proxies, like “dangerousness” and “group criminality.”  Multiple studies have shown that decision-makers are more likely to attribute these proxies to Black defendants and, in turn, treat them more punitively.  Compounding these dynamics is the racial stereotypicality of the crimes themselves.  A separate body of research indicates that felony murder and accomplice liability murder have become so cognitively synonymous with Black defendants that simply shoring up the doctrines’ structural laxity may not be enough to mitigate their disproportionate enforcement.

As states across the country grapple with reforming their felony murder and accomplice liability murder laws, this Article contributes to the ongoing debate about the legitimacy of both doctrines.  It also raises critical questions about the racialized enforcement of not just these doctrines but of any doctrine that invites the State to impute criminal liability. 

"Algorithms in Judges’ Hands: Incarceration and Inequity in Broward County, Florida"

The title of this post is the title of this article recently posted to SSRN authored by Utsav Bahl, Chad M. Topaz and others. Here is its abstract:

Judicial and carceral systems increasingly use criminal risk assessment algorithms to make decisions that affect individual freedoms.  While the accuracy, fairness, and legality of these algorithms have come under scrutiny, their tangible impact on the American justice system remains almost completely unexplored.  To fill this gap, we investigate the effect of the Correctional Offender Management Profiling for Alternative Sanctions (COMPAS) algorithm on judges’ decisions to mandate confinement as part of criminal sentences in Broward County, Florida.

Our study compiles a novel dataset of over ten thousand court records from periods before and after the implementation of COMPAS in Broward County and uses it to build a Directed Acyclic Graph (DAG) model of the confinement decision-making process.  Our approach aims to reveal potential associations between the use of COMPAS and incarceration.  We find that the many individuals deemed low risk by COMPAS are much less likely to be confined than were comparable individuals before COMPAS was in use, and similarly, individuals deemed high risk are much more likely to be confined than before.  Overall, the impact of COMPAS scores on sentencing decisions is a reduced rate of confinement for both Black and white individuals.  However, a racial bias exists within the COMPAS scores, as they are based on historical data that mirrors pre-existing racial inequities.  While the overall rate of incarceration decreases, the difference in scores exacerbates the difference in confinement between racial groups, thereby deepening racial disparity.  Insofar as criminal risk algorithms can aid decarceration, policymakers and judges alike should be mindful of the potential for increased racial inequity.

The Sentencing Project releases updated fact sheet on "Incarcerated Women and Girls"

The Sentencing Project today released this updated six-page fact sheet titled "Incarcerated Women and Girls." The document has lots of data and graphics providing details of how and why "female incarcerated population stands almost seven times higher than in 1980." I recommend the full document, and here is some of its text:

Between 1980 and 2022, the number of incarcerated women increased by more than 585%, rising from a total of 26,326 in 1980 to 180,684 in 2022. While 2020 saw a substantial downsizing due to the COVID-19 pandemic, this trend reversed with an 18% increase in 2022....

The rate at which women are incarcerated varies greatly from state to state. At the national level, including both state and federal imprisonment, 49 out of every 100,000 women were in prison in 2022. The state with the highest rate of female imprisonment is Idaho (132) and the state with the lowest incarceration rate of women is Massachusetts (7).

Women in state prisons are more likely than men to be incarcerated for a drug or property offense. Twenty-five percent of women in prison have been convicted of a drug offense, compared to 12% of men in prison; 19% of incarcerated women have been convicted of a property crime, compared to 13% among incarcerated men.

The proportion of imprisoned women convicted of a drug offense has increased from 12% in 1986 to 25% in 2021.

Interesting gendered jury history in the application of the death penalty

Via the Smithsonian Magazine, I came across this fascinating piece about juries and capital punishment history headlined "How All-Female ‘Juries of Matrons’ Shaped Legal History."  I recommend the piece in full, and here are some excerpts:

For more than 700 years, women in England could avoid the death penalty just by virtue of being pregnant.  A pregnant woman sentenced to death would receive a stay of execution until the baby was born. This tactic was called “pleading the belly” and often resulted in the death sentence being reduced to a less severe penalty once the pregnancy was over.

Of course, anyone can say they’re pregnant without actually being with child. So how did courts determine whether the claim was true? Until the early 20th century, it was standard practice to assemble all-female juries, called “juries of matrons,” to determine whether a woman was pregnant and could therefore avoid hanging for capital offenses....

All-female juries existed as early as 1140 in England and persisted until 1931. Their role in the courts was highly regarded. They were medical experts. If they found the woman was “quick with child” (pregnant), their findings were not disputed....

All-female juries also existed in colonial America, as well as in Australia and New Zealand. In fact, the first use of the English jury system in Australia was a jury of matrons....

If a convicted woman’s pregnancy resulted in a birth, a reprieve from the noose was fairly common. This raised the concern among men that women might falsely plead the belly to avoid punishment for a capital offense. They worried a jury of matrons, being “naturally” sympathetic to women, might grant the guilty a reprieve from death.

While there is scant evidence that this was the case, to address the men’s concern, the laws around pleading the belly stipulated that such a plea could only be made once. If a pregnant woman was granted a reprieve from death to have the baby, she could be executed for any future crime—even if pregnant at the time.

CCJ launches new nonpartisan national panel titled "Women’s Justice Commission"

I received a press release early this morning informing me that the Council on Criminal Justice (CCJ) today was launching a new "initiative to document and raise awareness of the distinctive needs of women in the criminal justice system and build consensus for evidence-based reforms that enhance safety, health, and justice."  Here is more from the press release (with links from the original): 

The nonpartisan national panel, the Women’s Justice Commission, is chaired by Loretta Lynch, who championed women’s justice issues as U.S. Attorney General, and includes 15 other ideologically diverse leaders representing law enforcement, legislative offices, courts, corrections, medicine, research, advocacy, and directly impacted individuals. Oklahoma First Lady Sarah Stitt, a longtime advocate for breaking generational trauma among women due to substance abuse and mental health issues, is serving as Senior Adviser. The Commission is scheduled to hold its first formal meeting today in New York City, including a visit to Brooklyn program for justice-involved women....

In conjunction with today’s meeting, the Commission released two comprehensive reports — Women's Justice: A Preliminary Assessment of Women in the Criminal Justice System and Women’s Justice: By the Numbers — that paint a statistical portrait of justice-involved women and establish a foundation for the panel’s work.  Among other findings, the reports show that: 

• Females report that they make up a larger share of violent crime victims: 51% of all violent victimizations in 2022 compared to 41% of all victimizations in 1993, the start of the data series. (This figure is drawn from the National Crime Victimization Survey; it excludes homicides and includes simple assaults.) 

• Growth in arrest rates for women (41% higher in 2019 than in 1980) is due in part to a rise in arrest rates for violent crimes (317% higher in 2019 than 1980) and drug crimes (63% higher in 2019 than 1980). 

• The incarceration rate for women in U.S. prisons and jails increased dramatically (+431%) from 1982 through 2007, and then flattened as the number of incarcerated men began to fall.  Between 2010 and 2019, the year before the COVID pandemic jolted the criminal justice system, the female jail incarceration rate went up by 12%, while the male rate fell by 10%.  As overall incarcerated populations rebounded in 2021 and 2022 after COVID-related reductions, the increase of the female populations outpaced those of men. 

• More than half of the women in state and federal prisons are parents to minor children, and an estimated three of four women in local jails are mothers.  Prior to incarceration, mothers were more than twice as likely as fathers to be the sole or primary caretaker of their children. 

• Most justice-involved women come from backgrounds of poverty and trauma, and they are more likely than justice-involved men to be victims of physical and sexual abuse, suffer severe substance use and mental health issues, and to have experienced homelessness in the year prior to incarceration. 

The production and publication of these initial documents from the CCJ are already a terrific contribution, and I will eager to see what this august new commission produces in the months and years ahead.

Part 1 of "Drugs on the Docket" podcasts on fake stash-house stings now available

In this post earlier this week, I previewed that the Drug Enforcement and Policy Center at The Ohio State University was about to start releasing episodes from Season Two of the "Drugs on the Docket" podcast.  Excitingly, as detailed on this podcast webpage, today brought the release of the first episode of this new season.  (And all of the first season's episodes are all still  available via Apple Podcasts and YouTube.)  This first episode to kick-off Seanson 2 is actually part of a extended discussion that was so chock full of content that it became a two-part series described this way at the podcast webpage:

Season 2 Episode 1 – Stash house stings with Alison Siegler and Erica Zunkel (Part 1 of 2)

Host Hannah Miller and co-host Douglas Berman, executive director of the Drug Enforcement and Policy Center, kick off Season 2 with guests Alison Siegler and Erica Zunkel from the University of Chicago.  Part 1 of this two-part episode focuses on clients ensnared in undercover stash house sting operations carried out by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and how the Federal Criminal Justice Clinic at the University of Chicago Law School sought to prove that the ATF violated the 14th Amendment Equal Protection Clause by discriminating on the basis of race when selecting its targets.

Alison Siegler is Clinical Professor of Law and Founding Director of the Federal Criminal Justice Clinic at the University of Chicago Law School; Erica Zunkel is Clinical Professor of Law at the University of Chicago Law School and teaches in the school’s Criminal and Juvenile Justice Clinic.

The many remarkable legal and policy stories that surround the fake stash-house stings continue to amaze me, and I am extremely grateful to have been part of this effort to tell parts of the story via these podcasts.  I encourage everyone to have a listen.

"Punishing Gender"

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

As jurisdictions across the country grapple with the urgent need to redress the impact of mass incarceration, there has been a renewed interest in reforms that reduce the harms punishment inflicts on women.  These “gender-responsive” reforms aim to adapt traditional punishment practices that, proponents claim, were designed “for men.”  The push to change how we punish based on gender, while perhaps well intentioned, is misguided.  As abolition feminist principles reveal, these gender- responsive practices not only reify traditional gender norms, but also strengthen the operation of the carceral state.  This Article catalogs the ways that the gender-responsive approach currently influences various decisions about criminal punishment, including about the length, location, and type of punishment one receives.  Then, it provides an abolition feminist critique of how we “punish gender” and concludes that these efforts to treat some people better than others ultimately lead to a system that is worse for all.

New Death Penalty Information Center report presents racialized view of Ohio's capital punishment history

The Death Penalty Information Center (DPIC) today published this new report on Ohio capital punishment history titled "Broken Promises: How a History of Racial Violence and Bias Shaped Ohio’s Death Penalty." In this press release about the report, DPIC asserts that it "does not take a position on the death penalty itself," but all of its work clearly draws from an anti-capital punishment perspective.  This report is quite critical of Ohio's capital punishment history and current state as reflected in this description of the report from portions of the press release:

As Ohio legislators debate expanding or repealing the death penalty, the Death Penalty Information Center (DPIC) today released a report that documents how racial bias and violence affected the past use of the death penalty in Ohio and how that history continues to influence the current administration of capital punishment in the state.  None of the reforms recommended by a bipartisan task force 10 years ago to reduce racial disparities in capital cases have been adopted.

The report, “Broken Promises: How A History of Racial Violence and Bias Shaped Ohio’s Death Penalty” and “Five Facts You Should Know About Ohio’s Death Penalty” are available at this link....

As the report documents, racial discrimination is the throughline that runs from the state’s founding to its application of capital punishment today.  For example, from the early 19th century, Ohio’s Black Laws imposed legal restrictions on the rights and status of Black people in the state, including barring Black people from jury service.  In 1807, Ohio adopted a “Negro Evidence Law” which prohibited Black people from testifying against white people, establishing a legal double standard.  In the 19th and early 20th centuries, lynch mobs tortured and killed Black men after accusing them of raping white women without evidence.  Even when photos were taken in broad daylight of lynch mob participants, they rarely faced legal consequences for these extrajudicial murders.

As the report reveals, race, especially the race of the victim, continues to play an outsized role in Ohio’s death penalty system.  For example, homicides involving white female victims are six times more likely to result in execution compared to those involving Black male victims, despite the majority of murder victims in the state being Black. Similarly, a study of aggravated murder charges in Hamilton County shows that prosecutors are four and a half times more likely to seek the death penalty if there is at least one white victim, compared to similar cases without white victims....

“Broken Promises” builds upon DPIC’s 2020 report, “Enduring Injustice: The Persistence of Racial Discrimination in the U.S. Death Penalty.” It is the fourth in a series of reports detailing how individual state histories of racial injustice affect the current use of capital punishment. In 2023, DPIC released “Doomed to Repeat: The Legacy of Race in Tennessee’s Contemporary Death Penalty” and “Compromised Justice: How A Legacy of Racial Violence Informs Missouri’s Death Penalty Today.” In 2022, DPIC released “Deeply Rooted: How Racial History Informs Oklahoma’s Death Penalty.

"Gender Matters: Women on Death Row in the United States"

The title of this post is the title of this new article now available via SSRN and authored by Sandra Babcock, Nathalie Greenfield and Kathryn Adamson.  Here is its abstract:

This article presents a comprehensive study of 48 persons sentenced to death between 1990 and 2023 who presented as women at the time of their trials.  Our research is the first of its kind to conduct a holistic and intersectional analysis of the factors driving women’s death sentences.  It reveals commonalities across women’s cases, delving into their experiences of motherhood, gender-based violence and prior involvement with the criminal legal system.  We also explore the nature of the women’s crimes of conviction, including the role of male co-defendants and the State’s use of aggravating factors.  Finally, we reveal for the first time the extent to which capital prosecutions are dominated by men — including judges, elected District Attorneys, defense attorneys, and juror forepersons — and explain why gender matters in determining who lives and who dies.

We present our data against the backdrop of prevalent theories that seek to explain both the rarity of women’s executions and the reasons why certain women are singled out for the harshest punishment provided by law.  We explain why those frameworks are inadequate to understand the role that systemic gender bias plays in women’s capital prosecutions.  We conclude by arguing for more nuanced research that embraces the complexities in women’s capital cases and accounts for the presence of systemic and intersectional discrimination.

"State Sentencing Reforms Had Little Impact on Racial Disparities in Imprisonment, Analysis Finds"

The title of this post is the the title of this new press release from the Council on Criminal Justice (CCJ) discussing the latest findings of research it has been conducting looking at incarceration disparities.  Here is part of the press release, with lnks from the original providing access to the underlying research:

The Black-White disparity in imprisonment has narrowed substantially over the past 20 years but very little of the progress can be attributed to state sentencing reforms, according to a series of reports released today by the Council on Criminal Justice (CCJ).

Following on previous analyses that documented a 40% drop in the Black-White imprisonment disparity between 2000 and 2020, researchers at CCJ, Georgia State University, and the Crime and Justice Institute examined more than 700 statutes adopted in 12 states between 2010 and 2020, seeking to understand how sentencing reforms might have influenced the reduction.  Laws included for study related to violent, property, and drug crimes, as well as parole release and technical violation practices.  The study states (Arizona, California, Colorado, Florida, Georgia, Illinois, New York, North Dakota, Pennsylvania, South Carolina, Texas, and Utah) varied by region, demographic composition, sentencing structure, and the political party in power.

With minor exceptions, the analysis found that the sentencing reforms had negligible impacts on reducing racial disparities, and instead largely codified changes to enforcement, policing, charging, and sentencing practices that had occurred before the laws were enacted. In addition, many sentencing law changes that took effect during the study period addressed fairly infrequent crimes and therefore had a minimal effect on disparity. 

The findings suggest that factors beyond sentencing laws were mostly responsible for the Black-White imprisonment disparity declining from 8.2-to-1 in 2000 to 4.9-to-1 in 2020. Though the study did not statistically assess alternative explanations, the authors offered several other possible reasons for the shrinking disparity, including changes in policing practices, drug use (from cocaine to opioids), how drugs are sold (from open-air markets to the use of GPS-equipped smartphones), and the types of crimes people commit (from burglary to cybercrime, for example)....

The 12-state analysis is part of a sweeping package on racial disparities released by CCJ’s Pushing Toward Parity project. It includes an in-depth look at the legislative changes in each of the 12 study states as well as two reports examining disparities in imprisonment through other lenses.

One analysis examined state imprisonment disparities between Hispanic and non-Hispanic White people.  It found that disparity in imprisonment rates declined during the first two decades of the century, but that the precise size of the drop is unclear because of a conflict between data sources. In 2020, data collected from state corrections departments showed a Hispanic-White disparity ratio of 1.5-to-1; data from a federal prison survey, however, produced a ratio that was 2.7-to-1, or 80% larger. 

The gap in disparity ratios derived from each source has increased over time.  In 2000, the two disparity ratios were roughly equivalent, but by 2020 the federal data disparity ratio was 80% larger.  The measurement gap stems from how race and ethnicity are recorded and classified in each source.  The choice of measurement method makes a large difference in the projected achievement of parity: if current trends continue, the Hispanic-White disparity measure drawn from state data would reach parity by about 2026, while the measure from federal data would reach parity about 30 years later.

Another analysis focused on disparities in female prison populations. It found that state imprisonment disparity between Black and White women fell by 71% between 2000 and 2020, decreasing from 6.3-to-1 to 1.8-to-1 and exceeding the drop for men.  The decline was driven by a 56% decline in the imprisonment rate for Black women and a 57% increase for White women.  Hispanic-White female imprisonment rate disparity also fell (by 56%) over the two-decade period, data from state corrections departments showed; it has been at or below parity since 2010 and reached 0.7-to-1 in 2020, meaning that White women were more likely to be imprisoned than Hispanic women.

Female imprisonment disparity fell across violent, property, and drug offense categories, with the largest drop recorded for drug crimes.  From 2000 to 2020, Black-White drug offense imprisonment disparity among women dropped from 8 to 0.6, reaching parity in 2016.  Hispanic-White drug offense imprisonment disparity fell from 2.4 in 2000 to 0.5 in 2020. Changes in the demographic composition of prison admissions drove the trends.  From 2000 to 2019, admissions decreased 47% for Black females, increased 15% for Hispanic females, and rose 138% for White females. 

Defender groups file FOIA seeking records on DOJ's implementation of December 2022 charging and sentencing memos

As reported in this press release, yesterday the "American Civil Liberties Union, the National Association of Criminal Defense Lawyers, and the Federal Public & Community Defenders submitted a Freedom of Information Act (FOIA) request ... seeking public records detailing the Department of Justice’s implementation of December 2022 memoranda establishing new policies for all federal prosecutors’ charging and sentencing practices."  Here is some context from the press release:

On Dec. 16, 2022, Attorney General Merrick Garland issued two memoranda requiring federal prosecutors to make important changes in how they litigate criminal cases.  These changes include charging crack cocaine offenses like powder cocaine offenses in order to avoid unwarranted and racially disparate sentencing outcomes; and reserving charges that carry a mandatory minimum sentence for cases in which the other charges (i.e., those for which the elements are also satisfied by the accused person’s conduct, and do not carry mandatory minimum terms of imprisonment) would not sufficiently reflect the seriousness of the person’s alleged criminal conduct, danger to the community, or harm to victims.

The new policies have been in effect for over one year, but the Federal Public & Community Defenders have received information from attorneys in multiple federal court districts indicating that federal prosecutors are not uniformly abiding by the two memoranda....

The ACLU, NACDL, and FPD seek wide ranging information on implementation of the memoranda, including:

• Data collected in software developed by the Justice Department to track charges brought by the DOJ that include mandatory minimum sentences, and related policy directives and training materials;
• Information related to compliance with the memoranda, including the percentage of charging documents and plea agreements that include charges with mandatory minimum sentences; and
• Further guidance the Justice Department has issued to ensure federal prosecutors seek equal treatment for crack and powder cocaine offenses through their charging and sentencing practices.

The FOIA request highlights the impact, if properly implemented, of the memoranda’s requirement that federal prosecutors exercise greater restraint in using mandatory minimums.  “Reducing the use of mandatory minimums can also ameliorate racial disparities in the sentence lengths between similarly situated Black and white federal defendants. Research has shown that ‘[t]he initial mandatory minimum charging decision alone is capable of explaining more than half of the black-white sentence disparities not otherwise explained by pre-charge characteristics,’” the request reads.

The full 18-page FOIA request is available at this link.

Prior related posts:

• US Attorney General Garland releases new federal charging guidelines that include instructions to treat crack like powder cocaine
• Wondering about the impact of AG Garland's new charging and sentencing memos 

GAO releases big report examining BOP's use of "restrictive housing"

The United States Government Accountability Office recently released this big new report titled "Bureau of Prisons: Additional Actions Needed to Improve Restrictive Housing Practices." An introduction one-page to the document discusses "Why GAO Did This Study" and "What GAO Recommends" and "What GAO Found," and here are excerpts from this discussion:

DOJ’s BOP is responsible for confining individuals in safe, humane, and appropriately secure conditions. In certain circumstances, such as alleged or substantiated violence, BOP can move individuals to restrictive housing, and generally isolate them in cells for up to 23 hours per day. As of October 2023, BOP continued to house about 8 percent of its population (about 12,000 individuals) in these settings. Strengthening management of federal prisons was added to GAO’s high-risk list earlier this year.

Among its objectives, GAO was asked to examine the extent to which BOP (1) addressed recommendations from two prior restrictive housing studies; and (2) leveraged facility information to ensure restrictive housing policy compliance and enhance operations.

GAO analyzed BOP policies and data; interviewed BOP officials; and conducted non-generalizable interviews with staff and incarcerated individuals at five BOP facilities— selected to cover a range of restrictive housing unit types.

GAO is making eight recommendations to BOP, including that it assign responsibility and establish time frames for recommendation implementation and identify the cause of racial disparity in SMU placements. BOP concurred with the eight recommendations but raised related concerns; GAO discusses these in the report.

The Bureau of Prisons (BOP) has not fully implemented 54 of the 87 recommendations from two prior studies on improving restrictive housing practices. The first study, completed by a BOP contractor in 2014, had 34 recommendations (16 of which are fully implemented.) The other evaluation, completed in 2016 by the Department of Justice (DOJ), had 53 recommendations (17 of those are fully implemented). A May 2022 Executive Order on criminal justice practices directed the Attorney General to ensure full implementation of the January 2016 recommendations. BOP has made slow progress due in part to not assigning responsibility for recommendation implementation to appropriate officials and not establishing associated time frames for completion....

During the 2014 contracted assessment, reviewers found inconsistencies in the application of subjective criteria used to place individuals in the special management unit (SMU)—one that is designed for individuals with heightened security concerns. GAO’s analysis of 2022 data appears to confirm that inconsistencies continued, resulting in equity concerns. Black individuals were 38 percent of the total BOP population but 59 percent of the SMU placements. In comparison, White individuals were 58 percent of the total BOP population and 35 percent of the SMU placements. In response to management challenges, earlier this year BOP closed its remaining SMU and has not yet decided on the future of such units. Analyzing the cause of the substantial racial disparity could inform BOP and DOJ decisions on the future of restricted housing and help ensure consistent and equitable treatment of incarcerated individuals.

The Sentencing Project releases final report on racial disparities, "One in Five: How Mass Incarceration Deepens Inequality and Harms Public Safety"

As noted in this October post, The Sentencing Project has been producing what it describes as "a series of four reports examining both the narrowing and persistence of racial injustice in the criminal legal system, as well as highlighting promising reforms."  Today, The Sentencing Project released this latest and last report in this series, titled "One in Five: How Mass Incarceration Deepens Inequality and Harms Public Safety."  Here is a starting part of this new report's executive summary:

The previous installment of the One in Five series examined three drivers of racial disparity from within the criminal legal system: disparate racial impact of laws and policies, racial bias in the discretion of criminal legal professionals, and resource allocation decisions that disadvantage low-income people.6 This final installment of the series presents a fourth driver of disparity in imprisonment which relates to the damaging consequences of criminal legal contact—contact that is disproportionately experienced by communities of color.

Specifically, this report explores laws and policies that exacerbate socioeconomic inequalities by 1) imposing financial burdens and collateral consequences on people with criminal convictions and 2) diverting public resources from effective interventions to promote public safety.

Prior related posts:

• Sentencing Project releases first in series of reports on the "narrowing and persistence" of racial disparities CJ system
• The Sentencing Project releases latest report on racial disparities, “One in Five: Disparities in Crime and Policing”
• The Sentencing Project releases latest report on racial disparities, "One in Five: Racial Disparity in Imprisonment - Causes and Remedies"

"Race, class, and criminal adjudication: Is the US criminal justice system as biased as is often assumed? A meta-analytic review"

The title of this piece is the title of this notable new article authored by Christopher Ferguson and Sven Smith that a helpful reader flagged for me. This article will be published in the journal Aggression and Violent Behavior, and here is its abstract:

It is widely reported that the US criminal justice system is systematically biased in regard to criminal adjudication based on race and class.  Specifically, there is concern that Black and Latino defendants as well as poorer defendants receive harsher sentences than Whites or Asians or wealthier defendants.  We tested this in a meta-analytic review of 51 studies including 120 effect sizes.  Several databases in psychology, criminal justice and medicine were searched for relevant articles.  Overall results suggested that neither class nor race biases for criminal adjudications for either violent or property crimes could be reliably detected.

For all crimes, effect sizes (in terms of r) for Black vs White comparisons were.054, for Latinos vs Whites, 0.057 and for Asians vs Whites −0.028. There was significant heterogeneity between studies, particularly for Asian vs White comparisons.  Effect sizes were smaller than our evidentiary threshold, indicating they are indistinguishable from statistical noise.  For drug crimes, evidentiary standards were met, although effect sizes were very small.  Better quality studies were less likely to produce results supportive of disparities. Studies with citation bias produced higher effect sizes than did studies without citation bias suggesting that researcher expectancy effects may be driving some outcomes in this field, resulting in an overestimation of true effects.  Taken together, these results do not support beliefs that the US criminal justice system is systemically biased at current. Negativity bias and the overinterpretation of statistically significant “noise” from large sample studies appear to have allowed the perception or bias to be maintained among scholars, despite a weak evidentiary base. Suggestions for improvement in this field are offered. Narratives of “systemic racism” as relates to the criminal justice system do not appear to be a constructive framework from which to understand this nuanced issue.

"Abolish or Reform? An Analysis of Post-Release Supervision for Low-Level Offenders"

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

At year-end 2021, there were nearly four million individuals serving a term of probation, parole, or post-release supervision in the United States.  This paper uses a unique and detailed dataset to study two distinct changes to state law that eliminated and then reinstated post-release supervision for low-level offenders in Kansas.  Each of these changes occurred in very different periods of criminal justice policy (2000 and 2013 respectively), but yielded the same result: post-release supervision caused large increases in reimprisonment with no detectable impact on reoffending.

I find that the elimination of post-release supervision in 2000 decreased the one-year reimprisonment rate of affected individuals by 28.5 percentage points (from a baseline of 35 percent).  In 2013, the reinstatement of post-release supervision caused a 17.5 percentage point increase in reimprisonment (bringing the reimprisonment rate back to approximately 30 percent) with no detectable decrease in reoffending.  Furthermore, I find that the elimination of post-release supervision in 2000 completely closed the racial gap in reimprisonment rates among the impacted individuals.  These results provide support for policies that would reduce the use of community supervision, not only to lower reincarceration rates, but as a promising opportunity to eliminate a major source of racial inequality in the criminal legal system.

The Sentencing Project produces new fact sheets on "Racial and Ethnic Disparities in Youth Incarceration"

I received via email an alter that The Sentencing Project has produced "new fact sheets show state-by-state incarceration rates by race and ethnicity" with respect to "youth incarceration."  These facts sheets are accessible at this link, and here is how the work is described at that webpage:

Despite significant drops in youth incarceration over a decade, youth of color remain vastly more likely to be incarcerated than their white peers.  New data released today by The Sentencing Project reveal Black youth and Tribal youths’ disproportionate incarceration is largely unchanged compared to 10 years prior, while Latinx youths’ incarceration disparities with their white peers have been reduced.

The Sentencing Project’s new fact sheets show state-by-state incarceration rates by race and ethnicity and highlight where the problem is getting worse and better.

The Sentencing Project releases latest report on racial disparities, "One in Five: Racial Disparity in Imprisonment - Causes and Remedies"

As noted in this October post, The Sentencing Project is "producing a series of four reports examining both the narrowing and persistence of racial injustice in the criminal legal system, as well as highlighting promising reforms."  Today, The Sentencing Project released this latest report in this series, the third I believe, titled "One in Five: Racial Disparity in Imprisonment — Causes and Remedies."  Here is part of this new report's executive summary:

The United States experienced a 25% decline in its prison population between 2009, its peak year, and 2021.  While all major racial and ethnic groups experienced decarceration, the Black prison population has downsized the most.  But with the prison population in 2021 nearly six times as large as 50 years ago and Black Americans still imprisoned at five times the rate of whites, the crisis of mass incarceration and its racial injustice remain undeniable. What’s more, the progress made so far is at risk of stalling or being reversed.

This third installment of the One in Five6 series examines three key causes of racial inequality from within the criminal legal system. While the consequences of these policies and issues continue to perpetuate racial and ethnic disparities, at least 50 jurisdictions around the country — including states, the federal government, and localities — have initiated promising reforms to lessen their impact.

1. Laws and policies that appear race-neutral have a disparate racial impact....

2. Racial bias influences criminal legal practitioners’ use of discretion....

3. A financially burdensome and under-resourced criminal legal system puts people with low incomes, who are disproportionately people of color, at a disadvantage....

Prior related posts:

• Sentencing Project releases first in series of reports on the "narrowing and persistence" of racial disparities CJ system
• The Sentencing Project releases latest report on racial disparities, “One in Five: Disparities in Crime and Policing”

DPIC releases new report focused on racial history of Missouri’s death penalty

As reported in this DPIC press release, "the Death Penalty Information Center (DPIC) released a report that documents how racial bias and violence affected the past use of the death penalty in Missouri and how that history continues to influence the current administration of capital punishment in the state."  The full 43-page report, titled "Compromised Justice: How A Legacy of Racial Violence Informs Missouri’s Death Penalty Today," is available here.  The executive summary can be found here, and here is how it begins:

Missouri is one of a handful of states that has consistently executed people in the last five years.  In 2023, Missouri executed four people.  Understanding the historical application of the death penalty in Missouri helps our understanding of how capital punishment is used today.

Historically, Missouri’s Death Penalty Was Applied Discriminatorily Based on Race

Decades before Missouri gained statehood, the territory adopted capital punishment laws that were applied based on race.  There were at least four crimes that could only be tried capitally if committed by an enslaved person.  After Missouri became a state in 1821 and had adopted superficially race-neutral capital punishment laws, the death penalty continued to be applied discriminatorily: enslaved people were four times more likely to be executed than white Missourians before 1865.

Missouri Has a Substantial History of Racial Violence Directed at Black Missourians

The first documented lynching in U.S. history happened in Missouri in 1838. By the late 1800s, racial terror lynchings had increased in regularity, particularly in Southern, former slave-holding states.  Throughout the 19th and 20th centuries, at least 60 Black Missourians were killed in lynchings, making it the state with the second highest number of racial terror lynchings outside of the South.

Although the number of lynchings declined, public executions continued in Missouri longer than all but one other state.  Public executions were a form of racial violence: there are examples of sheriffs providing execution attendees with souvenirs such as pieces of the ropes used to hang Black people and even the victim’s body parts.  After a quadruple execution in St. Louis, a drug store owner was permitted to display the severed head of a Black person who was executed in his shop.  The constant reminders of brutal lynchings and executions were used by white people to continually threaten and intimidate Black people.

New US Sentencing Commission releases new updated report on "Demographic Differences in Federal Sentencing"

The US Sentencing Commission this morning released this notable new research report titled "Demographic Differences in Federal Sentencing."  As noted in this 2020 post, the USSC has completed similar reports looking at federal sentencing outcomes and the way its advisory guidelines function about every five or six years since the Booker ruling, and this latest report is summarized on this USSC webpage in this way:

The Commission has studied the issue of demographic differences in sentencing throughout its history.  In four prior reports, studying various time periods, the Commission has examined whether differences in the length of federal sentences imposed on individuals were associated with demographic characteristics of those individuals. 

Based on continued interest in this issue and consistent with best practices, the Commission re-examined and refined the analytical methods used in its previous reports to better understand sentencing disparity in the federal courts. Using new analytical techniques and newly available data, this report examines federal sentencing practices in the five fiscal years after the 2017 report to determine if the differences observed in the Commission’s prior reports continued to persist. 

This report presents the results of that work, and furthers the Commission’s mandates to establish sentencing policies and practices that eliminate unwarranted sentencing disparities and to serve as a center for information on federal sentencing practices.

The USSC webpage also sets forth these "Key Findings":

Sentencing differences continued to exist across demographic groups when examining all sentences imposed during the five-year study period (fiscal years 2017-2021). These disparities were observed across demographic groups — both among males and females.

• Specifically, Black males received sentences 13.4 percent longer, and Hispanic males received sentences 11.2 percent longer, than White males.
• Hispanic females received sentences 27.8 percent longer than White females, while Other race females received sentences 10.0 percent shorter.

The sentencing differences in the data the Commission examined largely can be attributed to the initial decision of whether the sentence should include incarceration at all rather than to the length of the prison term once a decision to impose one has been made. In particular, the likelihood of receiving a probationary sentence varied substantially by gender and race.

• Black males were 23.4 percent less likely, and Hispanic males were 26.6 percent less likely, to receive a probationary sentence compared to White males.
• Similar trends were observed among females, with Black and Hispanic females less likely to receive a probation sentence than White females (11.2% percent less likely and 29.7% less likely, respectively).

The sentencing differences were less pronounced when the analyses focused solely on cases in which a sentence of imprisonment was imposed, which comprise 94 percent of all cases sentenced during the five-year study period.

• Focusing solely on these cases, Black males received lengths of incarceration 4.7 percent longer, and Hispanic male received lengths of incarceration 1.9 percent longer, than White males.
• There was little difference among females receiving a sentence of imprisonment. The only statistically significant difference in the length of imprisonment among females was among Hispanic females, who received lengths of incarceration 5.9 percent shorter than White females.

Differences in the length of imprisonment across demographic groups were concentrated among individuals who received relatively short sentences.

• Among individuals sentenced to 18 months or less incarceration, Black males received lengths of incarceration 6.8 percent longer than White males. The difference narrowed to 1.3 percent for individuals who received sentences of greater than 18 months to 60 months; but for sentences longer than 60 months, Black males received lengths of incarceration approximately one percent shorter than White males. Few differences were statistically significant when comparing sentences for females.

Across all analyses, females received sentences that were shorter, on average, than males.

• When examining all sentences imposed, females received sentences 29.2 percent shorter than males. Females of all races were 39.6 percent more likely to receive a probation sentence than males. When examining only sentences of incarceration, females received lengths of incarceration 11.3 percent shorter than males.

The Sentencing Project releases latest report on racial disparities, “One in Five: Disparities in Crime and Policing”

As noted in this post last month, The Sentencing Project has announced that it is "producing a series of four reports examining both the narrowing and persistence of racial injustice in the criminal legal system, as well as highlighting promising reforms." Today, The Sentencing Project released this latest report in this series, the second I believe, titled “One in Five: Disparities in Crime and Policing.” Here is part of the report's executive summary:

As noted in the first installment of this One in Five series, scholars have declared a “generational shift” in the lifetime likelihood of imprisonment for Black men, from a staggering one in three for those born in 1981 to a still troubling one in five for Black men born in 2001....

This report interrogates the large footprint of policing — particularly of Black Americans— as, in part, a failed response to racial disparities in serious crimes. The wide net that police cast across people of color is at odds with advancing safety because excessive police contact often fails to intercept serious criminal activity and diminishes the perceived legitimacy of law enforcement.  Excessive policing also distracts policymakers from making investments to promote community safety without the harms of policing and incarceration. In addition, the large footprint of policing gets in the way of, as the National Academies of Sciences has called for, needed “durable investments in disadvantaged urban neighborhoods that match the persistent and longstanding nature of institutional disinvestment that such neighborhoods have endured over many years.”...

Ending racial inequity in the criminal legal system requires both effectively tackling disparities in serious criminal behavior and eliminating excessive police contact.  The subsequent installments of this One in Five series will examine additional drivers of disparity from within the criminal legal system and highlight promising reforms from dozens of jurisdictions around the country.

Prior recent related post:

• Sentencing Project releases first in series of reports on the "narrowing and persistence" of racial disparities CJ system

Sentencing Project releases first in series of reports on the "narrowing and persistence" of racial disparities CJ system

The Sentencing Project has released this new report today titled "One in Five: Ending Racial Inequity in Incarceration." The report's lengthy executive summary provides an overview of the report's these and concludes by nothing this report is the first in a series. Here are excerpts from the start and close of the executive summary:

Following a massive, four-decade-long buildup of incarceration disproportionately impacting people of color, a growing reform movement has made important inroads.  The 21st century has witnessed progress both in reducing the U.S. prison population and its racial and ethnic disparities.  The total prison population has declined by 25% after reaching its peak level in 2009. While all major racial and ethnic groups experienced decarceration, the Black prison population has downsized the most.  The number of imprisoned Black Americans decreased 39% since its peak in 2002.  Despite this progress, imprisonment levels remain too high nationwide, particularly for Black Americans.

Reforms to drug law enforcement and to sentencing for drug and property offenses, particularly those impacting urban areas which are disproportionately home to communities of color, have fueled decarceration and narrowed racial disparities.  These trends have led scholars to declare a “generational shift” in the lifetime likelihood of imprisonment for Black men.  This risk has fallen from a staggering one in three for those born in 1981 to a still troubling one in five for Black men born in 2001.  Black women have experienced the sharpest decline in their imprisonment rate, falling by 70% between 2000 and 2021.

But ... progress in reducing racial disparity in the criminal legal system is incomplete and at risk of stalling or being reversed....

To help protect and expand the progress made so far, The Sentencing Project is producing a series of four reports examining both the narrowing and persistence of racial injustice in the criminal legal system, as well as highlighting promising reforms.  This first installment presents an overview of trends in prison and jail incarceration and community supervision. The next installment will examine the high levels of contact that police initiate, particularly with people of color, as well as differential crime rates.  The final reports will examine key drivers of disparity from within the criminal legal system and promising reforms from dozens of jurisdictions around the country.

Notable defender amicus briefs submitted in support of Second Amendment claims in Rahimi

This week brought the final submission of the main merits and amicus briefs in the Supreme Court for the case of US v. Rahimi, which will address (at least) one aspect of how the landmark Bruen Second Amendment case applies to federal firearm possession criminalization.  In this post a couple of year ago, I flagged this notable amicus brief filed by various defender offices in support of expanding Second Amendment rights in Bruen.  Looking over the recent amicus filings, I noticed at least three different defense submission on behalf of the defendant in Rahimi.  A quick scan of some of these briefs reveals a number of notable passages, and I thought the very start of this brief from some California public defender groups highlighted some of the dimensions of this latest notable high-profile Second Amendment litigation:

The State of California aggressively criminalizes the possession of firearms.  We have seen that this disproportionately affects people of color, particularly Black people.  Since New York State Rifle & Pistol Association, Inc. v. Bruen, 142 S. Ct. 2111 (2022), we have litigated hundreds of motions seeking to bring California’s expansive gun regulations in line with the Second Amendment.  And we have found the difference between punishment and freedom often depends on how our courts interpret “law-abiding responsible citizens.”  We have also seen our clients in California face criminal prosecution for violating civil disarmament orders that sweep far beyond domestic violence.

As to the particular statute at issue in this case, 18 U.S.C. Section 922(g)(8), we acknowledge the need to protect people from domestic violence.  Many of our clients are themselves victims of domestic violence.  But we also have first-hand experience fighting the rote issuance of civil protective orders that deny our clients their Second Amendment rights and lead to unjust, unequal criminal prosecutions.

A few prior related posts:

• New district court opinion "holds that § 922(g)(8) is unconstitutional under Bruen's framework"
• Fifth Circuit panel declares unconstitutional federal prohibition on firearm possession for someone subject to domestic violence restraining order
• Some early commentary on SCOTUS Second Amendment review of federal gun prohibition in Rahimi
• Some more commentary on SCOTUS Second Amendment review of federal gun prohibition in Rahimi

"Cheap on Punishment: Examining the Impact of Prison Population Racial Demographics on State-Level Corrections Spending"

The title of this post is the title of this new article authored by Joshua Williams and Paige Vaughn recently published online at Justice Quarterly.  Here is its abstract:

Research has explored the effects of various state-level characteristics, such as racial composition and economic conditions, on correctional budgetary decisions.  However, researchers have yet to consider how the racial makeup of state prison populations themselves may impact subsequent corrections spending decisions.  Drawing on work suggesting that people of color are simultaneously over-punished and neglected by criminal justice systems, and utilizing a time-series cross-section analysis of 50 states from 1979 through 2017, we explore differences in state budgetary allocations for correctional expenditures based on the racial demographics of prison populations.  We find that the relationship between the Black-to-White incarceration ratio and spending on corrections is curvilinear: once a tipping point of Black-to-White incarceration is reached, spending on corrections decreases.  This finding is especially pronounced in Southern and Midwestern states.  Overall, our results provide a strong starting point for understanding the ways in which Black Americans are neglected in the incarceration setting.

Prison Policy Initiative provide updated data on "incarceration stats by race, ethnicity, and gender" in all states

Prison Policy Initiative has this new briefing by Leah Wang fully titled "Updated data and charts: Incarceration stats by race, ethnicity, and gender for all 50 states and D.C.: New data visualizations and updated tables show the national landscape of persistent racial disparity in state prisons and local jails."  here is how the briefing begins (with links from the original):

The best and latest criminal legal system data are often scattered across different government agencies, in incompatible formats, and difficult to compare.  To make the most useful information more accessible, we make the underlying data for our timely reports and briefings available in our Data Toolbox, and create state-specific graphics on our comprehensive State Profiles pages.  Today, we’ve added a rich new series of resources for our users of our work:

First, we now have a downloadable spreadsheet of the most recently available incarceration data for people in state prisons and in local jails, by race and ethnicity and by sex, for all 50 states and D.C.  Unlike other datasets, ours provides apples-to-apples state comparisons in three formats (counts, rates, and percentages): We’ve done the math to standardize incompatible measurements found in the various original data sources.

Second, we’ve updated over 100 of the key graphics on our State Profiles pages showing prison and jail incarceration rates by race and ethnicity, and how the racial composition of each state’s prisons and jails compare to the total state population.

"Quantifying disparate questioning of Black and White jurors in capital jury selection"

The title of this post is the title of this article recently published in the Journal of Empirical Legal Studies and authored by Anna Effenberger, John Blume and Martin Wells. Here is its abstract:

This article presents findings from a quantitative study of jury selection using computational natural language processing methods.  We analyzed the voir dire in a set of South Carolina capital trials cases used in previous studies to see if there was evidence of disparate questioning of potential jurors by the prosecution, defense counsel of the trial judge.  More specifically, we examined the descriptiveness and complexity of questioning.  Our results, presented here, revealed significant, but sometimes subtle, disparate questioning of Black venire persons, especially by the prosecution.

The natural language processing software used in this study could provide attorneys challenging the use of peremptory challenges on appeal as being based on race or gender discrimination with evidence relevant to the issue of disparate questioning, which is often a pretext for purposeful discrimination.  It could also potentially be used at trial since the analysis can be conducted almost instantaneously.  Using it at either stage of the proceedings could be a powerful tool in achieving the goal of having more diverse juries in criminal cases, especially where the death penalty is a potential punishment.

A couple of notable new sentencing articles from JCLC Online

I just came across a couple of interesting new sentencing pieces recently published by the Journal of Criminal Law an Criminology Online. Here are titles and links (where you can find abstracts and can download the full articles):

Sarah Turner, "White-Collar Crime, Sentencing Gender Disparities Post-Booker, and Implications for Criminal Sentencing" 

Elizabeth E. Wainstein, "The Need for Fairness and Accuracy for Women in Sentencing: Surmounting Challenges to Gender-Specific Statistical Risk Assessment Tools"

"The 'New' Drug War"

The title of this post is the title of this notable new paper authored by Jennifer Oliva and Taleed El-Sabawi.  Here is its abstract:

American policymakers have long waged a costly, punitive, racist, and ineffective drug war that casts certain drug use as immoral and those that engage in it as deviant criminals.  The War on Drugs has been defined by a myopic focus on controlling the supply of drugs that are labeled as dangerous and addictive.  The decisions as to which drugs fall within these categories have neither been made by health agencies nor based on scientific evidence.  Instead, law enforcement agencies have been at the helm of the drug war advocating for and enforcing prohibition.

The drug war has been a failure on all counts. American taxpayers have invested trillions of dollars in the war, yet the United States continues to witness record-setting numbers of drug overdose deaths every year.  The drug war has been used as a tool to disenfranchise and incarcerate generations of individuals minoritized as Black.  Black Americans are nearly six times more likely to be incarcerated for drug-related offenses than their white counterparts, notwithstanding that substance use rates are comparable across those populations.

The public rhetoric concerning drug use has notably changed in recent years.  Many policymakers have replaced the punitive, law and order narratives of the Old Drug War with progressive, public health-oriented language, which suggests that the Old Drug War has ended.  We, however, caution against such a conclusion.  This paper examines three categories of laws and policies that attend to individuals who use drugs under our country’s new, and purportedly public health-centric, approach: (1) laws that increase surveillance of certain drugs or those who use them; (2) the criminalization and civil punishment of the symptoms or behaviors related to drug use; and (3) laws that decrease access to treatment and harm reduction programs.

Our assessment of these policies demonstrates that the War on Drugs is not over.  It has merely been retooled, recalibrated, and reframed.  The “New” Drug War may be concealed with public health-promoting rhetoric, but it is largely an insidious re-entrenchment of the country’s longstanding, punitive approach to drug use.

Highlighting new research with encouraging news about incarceration trends

Writing in the Washington Post, Charles Lane has this great new opinion piece headlined "New data show a dire forecast about incarceration rates didn’t come true." I recommend the whole piece, and here are a few highlights:

Few data points have more dramatically illustrated the disparate racial impact of incarceration in the United States than this statistic, first calculated in a 2003 Justice Department-sponsored study: If imprisonment rates remained the same as they were in 2001, then 1 out of every 3 Black men born that year could expect to be put behind bars during his lifetime. The figure for White men, by contrast, was 1 of every 17.  Hammered home in political speeches, media coverage and activist websites, that projection did much to galvanize public opinion in favor of criminal justice reform.

And yet it did not actually materialize.  The overall U.S. incarceration rate peaked in the three-year period of 2006 to 2008, according to Pew Research, and it has been declining since then.  What’s more, the rate for Black men fell faster during the past two decades than that for White men (and other groups), contrary to expectations in 2003 — and to much conventional wisdom today.

Therefore, since the 2003 Justice Department study appeared, chances that Black men would not go to prison improved so much that the actual lifetime “incarceration risk” for those born in 2001 turned out to be fewer than 1 in 5 — about 40 percent lower than the oft-cited 1 in 3 figure.  This outcome connotes a modest, but real, reduction in racial inequality generally.  Amid a national criminal justice debate that often understandably focuses on the problems and injustices that still need to be solved, encouraging data deserve attention, too.

The hopeful findings about racially disparate incarceration rates emerge from a study to be published this week in the peer-reviewed journal Demography.  It includes such remarkable data as the fact that, whereas 5,159 out of every 100,000 Black men were imprisoned in 1999, the rate had fallen to 2,881 per 100,000 by 2019 — a 44 percent decrease. In that period, almost every state saw a decline in its incarceration rate for Black men....

The news gets better.  Partly as a result of these positive trends, Black men are now more likely to have earned a bachelor’s degree by age 25 than to have been in prison: The respective population shares, as of 2019, are 17.7 percent and 12 percent.  As recently as 2009, the opposite was the case, with 17.4 percent of 25-year-old Black men having gone to prison but only 12.8 percent having finished college. ...

Optimistically, but plausibly, the study argues that the generation of Black men — and, indeed, of all U.S. residents — born after 2001 “is facing a distinctly reduced risk of imprisonment.”  This is because rates of criminal behavior and arrest fell over the past two decades, relative to the 1980s and 1990s; the effects of this trend “will likely compound into even lower rates of incarceration as they age.”

The study acknowledges that U.S. crime and incarceration rates are still well above those of peer nations.  Although the Black-White ratio in male incarceration rates fell from 9.3 to 1 in 1999 to 6.1 to 1 in 2019, that unacceptable disparity “remains quite large,” the study notes.  “There is plenty more progress to be made,” the study’s lead author, sociologist Jason P. Robey of the University at Albany’s School of Criminal Justice, told me.

It might help to achieve that progress if the new Demography study, co-authored by sociologists Michael Massoglia and Michael T. Light, both of the University of Wisconsin at Madison, had provided an account of exactly why incarceration generally, and Black male incarceration in particular, has declined, but such explanations lie beyond the scope of their research.  Less punitive enforcement policies on nonviolent drug offenses, as well as other recent reforms intended to limit racially disparate incarceration, are undoubtedly part of the story.  And of course continued downward trends in imprisonment depend on preventing crime itself from spiraling upward.  The Demography study warns, appropriately, that positive trends are “reversible.”...

Alarming data on what the study labels the “incarceration boom” supplied one necessary ingredient to the criminal justice reform movement: urgency.  Statistical evidence of progress can provide another: hope.

The research article referenced in this opinion piece is authored by Jason P. Robey, Michael Massoglia & Michael T. Light and is titled "A Generational Shift: Race and the Declining Lifetime Risk of Imprisonment."

Notable "Racial Injustice Report" released by Philadelphia DA office on Juneteenth

As reported in this local article, headlined "New report finds evidence of racial disparity in Philadelphia police stops and sentencing," the Philadelphia District Attorney's Office released a significant new report on racial disparities in the city's justice system. Here is a partial summary from the press piece:

Black Philadelphians continue to be overrepresented in arrests and criminal charges compared to the broader population. That’s one of the key findings in the District Attorney’s Racial Injustice Report issued Monday. Despite increased focus on that disparity in recent years, the DA’s report finds the gap in treatment for Black residents has worsened as a result of federal, state, and local laws and policies.

To produce the report, the District Attorney’s Transparency Analytics Lab “analyzes data and outcomes that are only accessible to criminal legal system partners in order to provide the public with a transparent accounting of how systemic racism and economic inequality continue to present in — and are compounded by — policing, incarceration, and the criminal courts.”

The report found that between 2015 and 2022, Black defendants were charged at a disproportionately higher rate in seven out of the eight most common criminal categories. It also found that Black and Latino residents convicted of aggravated assault or burglary are “more likely to be sentenced to incarceration than white individuals convicted of the same crime.”

The full 68-page report is available at this link. Here is a portion of the report's discussion of sentencing disparities:

Disparities in sentencing are more pronounced than at any other stage of the criminal legal system.  Black people represent 65% of people sentenced to incarceration and 71% of people sentenced to two or more years, despite representing fewer than 60% of those convicted.  Notably, the disproportionalities in incarceration rates are larger than those at both stops and arrests.

In addition to representing a greater proportion, Black defendants also see a higher absolute number of carceral sentences.  As seen in the figure below, Black defendants receive the longest sentences on average, while white defendants receive the shortest.  Sentence lengths for AAPI and Latinx individuals' range between the two. The seriousness and circumstances of a convicted offense has the greatest impact on sentence length, though prior record can play a role.

Much of the difference in sentence lengths is driven by the seriousness of the convicted crime. However, there are persistent racial disparities when looking at individual offense categories.  Black defendants convicted of burglary, were more likely to receive carceral sentences than white and Latinx defendants, even when accounting for prior convictions and illegal firearm charges.  Latinx defendants convicted of PWID charges are also incarcerated at a higher rate, even when they have no serious prior convictions or illegal firearms charges.

Massachusetts high court rules defense attorney's racism created actual conflict of interest to establish ineffective assistance

The Massachusetts Supreme Judicial Court yesterday issued a notable unanimous ruling concerning defense representation in Commonwealth v. Dew, No. SJC-13356 (Mass. June 15, 2023) (available here). Here is how the opinion for the Court gets started:

The defendant, Anthony J. Dew, is a Black man of the Muslim faith. Indigent and facing multiple felony charges, the defendant was appointed counsel who openly posted, on his social media account, his vitriolic hatred of and bigotry against persons of the Muslim faith; his unabashed anti-Muslim rants were matched only by his equal scorn for and racism against Black persons.  Some of these postings occurred while counsel was representing the defendant. Indeed, counsel's intolerance and prejudice seeped into his representation of the defendant.  At least twice, counsel chastised the defendant for wearing religious garb, demanding that the defendant not wear "that shit" again; once, he refused to speak to the defendant because the defendant was wearing a kufi prayer cap in contravention of counsel's directive.  At their final meeting, counsel advised the defendant to accept a plea deal, which the defendant did. Several years later, counsel's bigotry came to the attention of the Committee for Public Counsel Services (CPCS), which suspended him for no less than one year as a result.  After learning of counsel's anti-Muslim, racist postings, the defendant filed a motion to withdraw his guilty plea and obtain a new trial on the ground that his court-appointed counsel had an actual conflict of interest.

We conclude that the conflict of interest inherent in counsel's bigotry against persons of the defendant's faith and race, which manifested during counsel's representation of the defendant, deprived the defendant of his right to effective assistance of counsel -- a right upon which our entire system of criminal justice depends to ensure a "fair trial."  See Gideon v. Wainwright, 372 U.S. 335, 344 (1963). See also Lavallee v. Justices in the Hampden Superior Court, 442 Mass. 228, 235 (2004), citing Strickland v. Washington, 466 U.S. 668, 685 (1984).  No additional showing of "prejudice" is required.  The motion judge's conclusion to the contrary was in error; we now vacate the defendant's convictions and remand for a new trial.

Notably, the defendant in this case had pleaded guilty, and the lower court had rejected his ineffectiveness claim due to the absence of a showing of clear prejudice.  The Massachusetts SJC explained that such a showing was not needed to make out his constitutional ineffectiveness claim in this context:

Although we cannot know with certainty whether Doyle's actions or inactions during the course of the representation were "motivated by anything other than [the defendant's] best interest," Hodge, 386 Mass. at 168, on the record before us, we cannot credibly assume that Doyle's representation was not affected by his virulent anti-Muslim and racist views, see Ellis, 947 F.3d at 562 (Nguyen, J., concurring) (when defense counsel makes "discretionary decisions in disregard of the client's interests on account of counsel's racism, the cumulative effect will be to impair the defense, but there is no way to pinpoint how it does so").  Importantly, we cannot know whether an attorney who did not share the animus Doyle harbored for persons of the Muslim faith and Black persons would have negotiated a better plea agreement.  Nor can we know whether Doyle's other actions in the case were unaffected by his views regarding Black, Muslim individuals.  Where, as the record shows was the case here, counsel harbors a deep-seated animus for persons of the defendant's race or religion, we cannot presume zealous advocacy; nor can we ask the defendant to prove how his counsel's bigotry might have affected the plea deal or otherwise impaired the representation, especially in view of the record that Doyle's bias reared its head in connection with his treatment of the defendant.  There are "many invisible ways in which counsel's bias could have affected the [proceeding]," Ellis, supra at 563 (Nguyen, J., concurring), and the defendant need not engage in "a speculative inquiry into what might have occurred in an alternate universe" had he been appointed unbiased counsel, Francis, 485 Mass. at 101, quoting Gonzalez-Lopez, 548 U.S. at 150.

Based on state's new Racial Justice Act, state judge throws out gang enhancements after finding “significant statistical disparity”

This local article, headlined "Judge finds Contra Costa DA’s filing practices are racist, dismisses gang charges in murder case," reports on an interesting new ruling from a California state judge relying on an interesting new California law. Here are some details:

In an unprecedented ruling statewide, a Contra Costa judge on Friday dismissed gang charges against four men under the California Racial Justice Act, ruling that county prosecutors have disproportionately targeted Black people with sentencing enhancements that open the door for life in prison without parole.

It is a case already under heavy scrutiny because two of the defendants were directly referenced in racist text messages sent by Antioch police officers who investigated their alleged crimes. The texts — part of a much larger scandal involving racism, alleged civil rights violations and dozens of impugned officers — made light of injuring the men during their arrests and referred to Black people in explicitly biased, hateful ways.

Contra Costa Judge David Goldstein’s Friday ruling did not take into consideration any of the racist texts. Rather, Goldstein based it on a decade of data — what he called a “significant statistical disparity” — showing that gang charges are more often filed against Black people. The stunning development clears the way for any Black person who has faced or is facing those charges in Contra Costa over the past decade to challenge them in court....

In making his decision Friday, Goldstein relied on data that both prosecutors and defense attorneys largely agreed upon that showed that Black people were from 6 to 8 percent more likely to be charged with “special circumstance gang enhancements” than people who weren’t Black.  Those enhancements, alleging gang membership and added on top of the underlying criminal charges at issue in a case, can greatly increase the sentence a defendant receives.

Goldstein threw out the gang enhancements against four East Bay men — Eric Windom, Terryon Pugh, Keyshawn McGee and Trent Allen — who are accused of fatally shooting a man to benefit an Oakland gang.  His ruling does not affect the murder, attempted murder and conspiracy counts against them.

Friday marks the second time that prosecutors in Contra Costa have made California history for violating the Racial Justice Act.  Last October, Judge Clare Maier ruled that a county prosecutor used “racially coded language” that “evoked racial stereotypes of African American men” during a two-defendant murder trial and threw out murder convictions for both men.

Maier’s ruling dealt specifically with a portion of the act that refers to the prosecution’s statements during trial, while Goldstein’s ruling cited a different subsection that covers the charging practices of an entire DA’s office.

Evan Kuluk, a lawyer with the county’s Alternate Defender’s Office and an attorney in both cases, told this news organization that “the impact of today’s ruling is an acknowledgement that racial bias infects every stage of the criminal legal process.”

Goldstein’s ruling calls into question dozens of other similar cases filed in Contra Costa, going back 10 years. Contra Costa DA Diana Becton — the first Black person and first woman ever to serve in that role in the county’s 173-year history — says her office now plans to look back at some of those cases with this new ruling in mind....

For many defense attorneys in Contra Costa, Friday’s ruling was a seen as vindication after years of calling on Contra Costa prosecutors to audit their own filing decisions.  In 2019, Becton partnered with the Vera Institute for a project intended to identify implicit bias in the way cases are prosecuted but has yet to release the underlying data.  Chief Public Defender Ellen McDonnell said Goldstein’s ruling “drives home the unfair charging practices that too often result from the role of implicit bias in our legal system.”

Notable sentencing research in recent special issue of "Law and Human Behavior"

I just tripped across the February 2023 issue of the journal "Law and Human Behavior," which is labeled as "Special Issue: Racial Justice in the Criminal Justice and Legal Systems."  This issue has lots of notable research, and sentencing fans might be especially interested in these pieces:

"The trial tax and the intersection of race/ethnicity, gender, and age in criminal court sentencing" by Peter S. Lehmann

"The eye of the beholder: Increased likelihood of prison sentences for people perceived to have Hispanic ethnicity" by Erik Girvan and Heather Marek

"Does 'Jamal' Receive a Harsher Sentence Than 'James'? First-Name Bias in the Criminal Sentencing of Black Men" by Dushiyanthini (Toni) Kenthirarajah, Nicholas P. Camp, Gregory M. Walton, Aaron C. Kay and Geoffrey L. Cohen

"Gender, Violence, and the Death Penalty"

The title of this post is the title of this new article available via SSRN authored by Sandra Babcock and Nathalie Greenfield. Here is its abstract:

This article undertakes the first and only comprehensive analysis of gender-based violence (“GBV”) in the lives of all women currently on death row.  We examine the prevalence of GBV and how it has shaped the lives and affected the criminal prosecutions of women facing execution.  Our research reveals, for the first time, that almost every woman on death row in the United States has experienced GBV and that the great majority have experienced multiple incidents of GBV.

Further, our research shows that both in the United States and around the world, defense attorneys frequently fail to present evidence of GBV in women’s capital trials.  When they do introduce such evidence, they fail to fully explain the nature of their clients’ victimization and the harm they have suffered as a result.  Moreover, we show that prosecutors frequently rely on gendered tropes to discredit women’s accounts of violence such as childhood sexual abuse, rape, and intimate partner violence.  Consequently, those who sentence women to die rarely comprehend the extensive trauma that the women have endured throughout their lives, and how that trauma relates to their legal and moral culpability.

New analysis of original dataset concludes "COVID-19 amplified racial disparities in the US criminal legal system"

The journal Nature today released here a new study by multiple authors titled "COVID-19 amplified racial disparities in the US criminal legal system."  Here is the empirical paper's abstract:

The criminal legal system in the USA drives an incarceration rate that is the highest on the planet, with disparities by class and race among its signature features.  During the first year of the coronavirus disease 2019 (COVID-19) pandemic, the number of incarcerated people in the USA decreased by at least 17% — the largest, fastest reduction in prison population in American history.  Here we ask how this reduction influenced the racial composition of US prisons and consider possible mechanisms for these dynamics.  Using an original dataset curated from public sources on prison demographics across all 50 states and the District of Columbia, we show that incarcerated white people benefited disproportionately from the decrease in the US prison population and that the fraction of incarcerated Black and Latino people sharply increased.  This pattern of increased racial disparity exists across prison systems in nearly every state and reverses a decade-long trend before 2020 and the onset of COVID-19, when the proportion of incarcerated white people was increasing amid declining numbers of incarcerated Black people.  Although a variety of factors underlie these trends, we find that racial inequities in average sentence length are a major contributor.  Ultimately, this study reveals how disruptions caused by COVID-19 exacerbated racial inequalities in the criminal legal system, and highlights key forces that sustain mass incarceration.  To advance opportunities for data-driven social science, we publicly released the data associated with this study at Zenodo.

LawProf Jessica Eaglin has this companion piece in Nature describing the study.  The full title of the companion piece highlights the themes: "COVID pandemic increased racial disparities in US prison populations.  A public data set on the size and racial composition of US prison populations has been generated.  Its analysis indicates how biases in sentencing lengths shape prisons’ racial make-up in the United States."

"Racial Bias, Accomplice Liability, and the Felony Murder Rule: A National Empirical Study"

The title of this post is the title of this new paper authored by G. Ben Cohen, Justin Levinson and Koichi Hioki now available via SSRN. Here is its abstract:

Inside the fraught history of American homicide law sit two long-criticized doctrines, felony murder and accomplice liability.  Though each of these rules have separately faced intense criticism for their resistance to the supposedly foundational principles of moral culpability and individual responsibility, their legacy must also be defined by the way they function symbiotically and specifically to heighten racialized punishment.  This Article addresses the weighty combined reach of the accomplice liability and felony murder doctrines and proposes that racial bias has fueled the operation and survival of the rules.  Specifically, it suggests that implicit racial bias has led to the automatic individuation of white men who are involved in group crimes, while at the same time created automatic de-individuation for Black and Latino men in similar situations, rendering these two doctrines complicit in state sanctioned racialization.

While legislative and judicial power exist to constrain regimes that unfairly expand criminal liability while ignoring criminal responsibility, the Article argues that the phenomenon of white individualization sustains these doctrines when they would otherwise have been discarded.  A national empirical study the authors conducted supports the claim of racialized group liability in the felony murder rule, demonstrating that Americans automatically individualize white men, yet automatically perceive Black and Latino men as group members. In addition to this core finding, the study also found that mock jurors disproportionately penalized men with Latino-sounding names compared to men with white or Black-sounding names, ascribing to them the highest levels of intentionality and criminal responsibility in a group robbery and ensuing homicide.  Contextualized within the troubled history of the felony murder and accomplice liability rules, the Article concludes by calling for the abandonment of the felony-murder doctrine in group liability situations.

"Judicial Scarring"

The title of this post is the title of this new empirical paper authored by Karthik Srinivasan available via SSRN.  Here is its abstract:

I document that experienced decision makers can be influenced by irrelevant events in a high stakes setting, felony sentencing in Cook County.  Using a stacked difference-in-differences design, I estimate that judges hand down sentences that are 13% longer after sentencing a first degree murder.  The effect is twice as large for defendants who resemble the murderer along the dimensions of race and charge severity.  The bias affects 6% of defendants on an ongoing basis and temporarily increases the Black sentencing penalty by 91%.

"Proving Actionable Racial Disparity Under the California Racial Justice Act"

The title of this post is the title of this new article authroed by Colleen V. Chien, W. David Ball and William A. Sundstrom now available via SSRN. Here is its abstract:

Racial disparity is a fact of the US criminal justice system, but under the U.S. Supreme Court’s holding in McCleskey v. Kemp, racial disparities — even sizable, statistically significant disparities — do not establish an Equal Protection violation without a showing of “purposeful discrimination.”  The California Racial Justice Act (CRJA), enacted in 2020 and further amended in 2022, introduced a first-of-its kind test for actionable racial disparity even in the absence of a showing of intent, allowing for relief when the “totality of the evidence demonstrates a significant difference” in charging, conviction, or sentencing across racial groups when compared to those who are “similarly situated” and who have engaged in “similar conduct.”

Though the CRJA was enacted over two years ago, two obstacles have made its promised remedies exist largely on paper — confusion about how to apply its new test and a lack of access to the data needed to demonstrate a significant difference.  This article overcomes these obstacles by exploring and interpreting the significant difference test and by analyzing a database of disparities that enables controls for criminal history and geography (similarly situated) and overlapping elements (similar conduct) based on comprehensive data from the California Department of Justice.  We also present two case studies that demonstrate how defendants might establish an initial showing of significant difference sufficient to successfully move for discovery.

"After McCleskey"

The title of this post is the title of this recent paper authored by Robert Tsai recently posted to SSRN. Here is its abstract:

In the 1987 decision, McCleskey v. Kemp, the Supreme Court rejected a black death row inmate’s argument that significant racial disparities in the administration of Georgia’s capital punishment laws violated the Fourteenth Amendment’s Equal Protection Clause.  In brushing aside the most sophisticated empirical study of a state’s capital practices to date, that ruling seemingly slammed the door on structural inequality claims against the criminal justice system.  Most accounts of the case end after noting the ruling’s incompatibility with more robust theories of equality and meditating on the deep sense of demoralization felt by social justice advocates.  One might be forgiven for assuming that defense lawyers abandoned structural inequality claims and the use of quantitative evidence in capital cases altogether.

But that would be wrong and incomplete.  For the first time, this Article recounts an unusual chapter of the fallout from the McCleskey litigation, focusing on the litigation and social activism in the wake of that decision.  It draws on interviews with anti-death penalty lawyers working for or allied with the Southern Center for Human Rights in Georgia, including Stephen Bright, Ruth Friedman, Bryan Stevenson, and Clive Stafford Smith.  It is also based on archival research into their case files.  Drawing from these resources, this Article shows how a subset of cause lawyers in the late 1980’s and early 90’s had a remarkable reaction to that demoralizing ruling: they engaged in a distinctive form of “rebellious localism.”  Instead of forsaking structural equality claims, they doubled down on them.  Rather than make peace with what they believed to be an unjust ruling, they sought to subvert it.  They also scrambled to formulate reliable quantitative evidence of intentional discrimination.  Instead of accepting existing racial disparities in the criminal justice system, they went after prosecutors and state court judges to expose how racial minorities and poor people wound up on death row more often than their white, wealthier counterparts.

Understanding this untold episode of legal history teaches us about the limits of judicial control over constitutional lawmaking, the unanticipated consequences of trying to insulate the legal order from accountability, and the possibilities for keeping clients alive and earning pro-equality victories when political conditions are inhospitable.  For those who pay attention, there are lessons that might humble the most ideologically committed judges and inspire reformers who confront challenging legal circumstances.

New Prison Policy Initiative briefing covers "Racial disparities in diversion: A research roundup"

I received word via email of this new Prison Policy Initiative briefing titled "Racial disparities in diversion: A research roundup."  Here is how it starts (with links from the original):

As the costs and impacts of mass incarceration continue to grow, along with increased public outrage on the issue, counties and municipalities are adopting a wide range of programs that divert people out of the criminal legal system before they can be convicted or incarcerated. Diversion programs exist to move people away from overburdened court dockets and overcrowded jails, while offering to connect them with treatment, and saving money in the process. This practice sounds like a win-win for communities — and it’s successful by many metrics — but as we explain in our 2021 report about diversion programs, their design and implementation greatly impact the outcomes for defendants. That report focuses on the stage of the criminal legal process at which diversion occurs, with the earliest diversions (i.e., pre-arrest) offering the most benefits.

This briefing builds on our previous work by examining how — like every other part of the criminal legal system — diversion programs are often structured in ways that perpetuate racial disparities. Here, we review key studies showing how people of color who are facing criminal legal system involvement are systematically denied or excluded from diversion opportunities. This inequity has a ripple effect, contributing to the troubling racial disparities we see elsewhere, in pretrial detention, sentencing, and post-release issues like homelessness and unemployment. We conclude that policymakers and practitioners involved in diversion programming must address the cost, eligibility requirements, and discretionary decision-making to offer these vital opportunities in a racially equitable way.

Please note that because existing research is largely centered around prosecutor-led diversion programs, this briefing and its recommendations are, too. Prosecutors hold immense power in their decisions to file or dismiss charges, release pretrial defendants, and recommend sentences; in this way prosecutors are arbiters of racial fairness in the criminal legal system, in part through diversion.

ABA Criminal Justice Section releases "2023 Plea Bargain Task Force Report"

American Bar Association's Criminal Justice Section Plea Bargaining Task Force today released this 40-page report. The report's introduction provides some background and details concerning its work:

The Plea Bargain Task Force formed in 2019 to address persistent criticisms of the plea bargain system in the United States. Plea bargaining has become the primary way to resolve criminal cases. Indeed, some jurisdictions have not had a criminal trial in many years, resolving all their cases through negotiated resolutions.  For this reason, a critical examination of the modern plea system is necessary and important.

This Report comes after three years of work, during which the Task Force collected and reviewed testimony from experts in the field and those impacted by the plea system, scholarly and legal reports on plea bargaining, state and federal rules of criminal procedure, and other materials. What has become clear from this process is that plea bargaining is not one monolithic practice. It looks different depending on whether one is in state or federal court, a rural jurisdiction with few lawyers or an urban center with large prosecution and public defender offices.  Even within the same courthouse, informal practices may differ between courtrooms and attorneys.  Although these variations pose a challenge for the development of any one-size-fits-all set of recommendations to reform plea bargaining practices, this Report identifies and addresses numerous concerns with plea bargaining that are common to a wide variety of jurisdictions.  The Report then provides guidance to jurisdictions on how to meet those challenges while also promoting justice, transparency, and fairness.

There are many purported benefits of plea bargaining in the current criminal justice system.  Nearly all jurisdictions have limited resources and plea bargaining provides a mechanism to efficiently resolve cases. By preserving resources this way, jurisdictions are able to direct greater resources to investigations and cases that proceed to trial. Additionally, plea bargaining provides a mechanism to incentivize defendants to cooperate with the government or to accept responsibility for their criminal conduct.  A plea also provides a clear and certain resolution to a case, which offers finality for the defendant, the victim, the courts, and the community. Furthermore, defendants use the plea process to avoid some of the most severe aspects of the criminal system.

In moderation, many of these benefits make sense. But as the Task Force discovered, too often these benefits have become the driving force of criminal adjudication at the cost of more fundamental values. For instance, according to the testimony the Task Force collected, at times, efficiency and finality trump truth-seeking. Furthermore, many benefits of plea bargaining are, when viewed in a different light, a means to mitigate the excessive harshness of the modern American criminal system. In this sense, plea bargaining is not so much providing a benefit as it is a safety valve for quotidian injustice.

Moreover, the Task Force reviewed substantial evidence that defendants—including innocent defendants — are sometimes coerced into taking pleas and surrendering their right to trial.   This happens for a number of reasons. For instance, mandatory sentencing laws often make the risks of taking a case to trial intolerable, and in some cases, prosecutors understand and exploit these fears to induce defendants to plead guilty in cases where they otherwise would prefer to exercise their constitutional right to have the case decided by a jury.  Similarly, mandatory collateral consequences, including the threat of deportation, push defendants to accept pleas in cases they might otherwise fight at trial.

The Task Force also discovered that the integrity of the criminal system is negatively affected by the sheer number of cases resolved by pleas. For example, police and government misconduct often goes unchecked because so few defendants proceed to pre-trial hearings where such misconduct is litigated.  The reality that so few pretrial matters are litigated leads prosecutors to be less critical of their witnesses and less willing to scrutinize the strength of their cases, knowing that they won’t be held accountable at trial. Defense lawyers, similarly, are less likely to properly investigate cases, knowing their clients will almost certainly  take a plea. Plea bargaining creates perverse incentives across the system for lawyers and judges who focus on disposition rates and getting through cases quickly rather than resolving cases justly. Furthermore, the loss of trials in favor of plea bargains is a profound loss for civic engagement. Jury trials provide critical oversight to the criminal system, and juries remain one of the only ways for citizens to shape how prosecutors enforce laws. The voice of the community is almost entirely lost in a system dominated by pleas.

More troubling still, the Task Force heard many ways in which plea bargaining promotes and exacerbates existing racial inequality in the criminal system. The Task Force collected testimony from experts in the field who demonstrated that throughout the plea process similarly situated defendants of color fare worse than white defendants. Black defendants in drug cases, for instance, are less likely to receive favorable plea offers that avoid mandatory minimum sentences and, as a result, receive higher sentences for the same charges as white defendants. The same is true for gun cases, in which Black defendants are more often subjected to charge stacking — a technique that allows prosecutors to pile on many charges, increasing the likely sentence after trial and the government’s leverage during plea negotiations – than white defendants.  In fact, across all charges the Task Force found evidence of significant racial disparities in prosecutorial decisions to drop or reduce charges.  For example, white defendants who face initial felony charges are less likely than Black defendants to be convicted of a felony, and white defendants facing misdemeanor charges are more likely than Black defendants to have their cases dismissed or resolved without incarceration.

After this introduction, this report sets forth fourteen principles that inform and structure the rest of the report.  Readers are encouraged to click through to see all the details, though here is the intro to the statement of principles:

While the plea bargaining process in the United States is broad and varied, the Task Force determined that it was vitally important to craft a single set of principles to guide plea practices generally. Those principles, which guide the Report’s more specific observations and recommendations, are listed below. These principles should be shared widely with members of the criminal justice community so that they might influence behavior and decision-making moving forward. These principles represent our conclusions about how plea bargaining should operate within our larger criminal justice system, a system based on the fundamental Constitutional right to trial.

Renewed bipartisan effort to end the federal crack/powder sentencing disparity via the EQUAL Act

During the last Congress, I became way too optimistic about the prospect of passage of the EQUAL Act to entirely eliminate the federal crack and powder cocaine sentencing disparity. But after the US House voted overwhelmingly, 361-66, to pass the EQUAL Act and after the Senate version secured 11 GOP sponsors, I really thought nearly four decades of a misguided sentencing structure could be coming to an end.  But, as detailed in posts here and here from the first half of 2022, opposition from some key Republican Senators prevented the bill from getting to the desk of President Biden. 

I am now inclined to be much less optimistic about the EQUAL Act's chance in the new Congress.  But I am still pleased to see bipartisan efforts continuing, as evidenced by this new press release from Senator Cory Booker.  Here are some details:

Today, U.S. Senators Cory Booker (D-NJ), chair of the Senate Judiciary Subcommittee on Criminal Justice and Counterterrorism, and Dick Durbin (D-IL), chair of the Senate Judiciary Committee, along with Representatives Kelly Armstrong (R-ND) and Hakeem Jeffries (D-NY), the House Democratic Leader, announced the reintroduction of the bipartisan Eliminating a Quantifiably Unjust Application of the Law (EQUAL) Act, legislation to eliminate the federal crack and powder cocaine sentencing disparity and apply it retroactively to those already convicted or sentenced. 

Joining Booker and Durbin as original cosponsors on the EQUAL Act in the Senate are Senators Lindsey Graham (R-SC), the ranking member of the Senate Judiciary Committee, Thom Tillis (R-NC), Chris Coons (D-DE), Cynthia Lummis (R-WY), and Rand Paul (R-KY).  Joining Armstrong (R-ND) and Jeffries (D-NY) as original cosponsors on the EQUAL Act in the House are Representatives Don Bacon (R-NE) and Bobby Scott (D-VA).

The sentencing disparity between crack and powdered cocaine, at one point as high as 100 to 1, helped fuel the mass incarceration epidemic.  According to the U.S. Sentencing Commission, in Fiscal Year 2021, 77.6% of crack cocaine trafficking offenders were Black, whereas most powder cocaine trafficking offenders were either white or Hispanic....

"Eliminating the crack-powder cocaine sentencing disparity is a step toward applying equal justice under the law,” said Representative Armstrong. “The EQUAL Act is sound, bipartisan criminal justice reform, that received overwhelming support in the House last Congress. It’s long overdue that we pass this bill and finally end the disparity to make a real difference for families across the nation.”...

Background

After the passage of the Anti-Drug Abuse Act of 1986, sentencing for crack and powder cocaine offenses differed vastly.  For instance, until 2010, someone convicted of distributing 5 grams of crack cocaine served the same 5-year mandatory minimum prison sentence as someone convicted of distributing 500 grams of powder cocaine.  Over the years, this 100:1 sentencing disparity has been widely criticized as lacking scientific justification. Furthermore, the crack and powder cocaine sentencing disparity has disproportionately impacted people of color. 

The Fair Sentencing Act, introduced by Senator Durbin, passed in 2010 during the Obama administration and reduced the crack and powder cocaine sentencing disparity from 100:1 to 18:1.  In 2018, Senators Booker and Durbin and Representative Jeffries were instrumental in crafting the First Step Act, which made the Fair Sentencing Act retroactive. 

Booker, Durbin, Armstrong, and Jeffries first introduced the EQUAL Act to eliminate the disparity once and for all in 2021.  In September 2021, the legislation passed the House with a wide bipartisan margin, 361-66.  In the Senate, the legislation ultimately attracted 11 Republican and 24 Democratic cosponsors.

The full text of the legislation can be viewed here.

A few of many prior posts on the EQUAL Act:

• GOP Gov and former DEA chief calls for Congress to "finally and fully end the disparity between crack and cocaine offenses" 
• US House votes 361-66 to pass today the EQUAL Act to end disparity between powder and crack cocaine sentences
• Is it foolish to hope, after now 35 years, that Congress will soon fix the crack-powder federal sentencing disparity? 
• Why is getting the EQUAL Act through the US Senate proving so challenging? 
• GOP Senators introduce competing crack/powder sentencing reform bill tougher than EQUAL Act
• Discouraging report on a possible last gasp for this Congress to pass the EQUAL Act 
• New year and new Congress brings a new effort to advance new EQUAL Act 

For those concerned about over-criminalization, the "Case for Legalizing Jaywalking"

I was not aware of the history of the term jaywalking or of the laws criminalizing this behavior.  Thus, I found interesting this new Mother Jones piece fully headlined "The Case for Legalizing Jaywalking: Bans hurt poor people and people of color.  Cities and states are catching on."  I recommend the full piece, but here is a snippet (with links from the original):

If you regularly walk in any American city, you, too, probably have crossed a street against the signal or outside of a designated crosswalk.  Sure, one could argue that crosswalks were created as a way to protect pedestrians from potentially dangerous automobiles.  But why would transgressing those limits become a petty crime?  Thanks to a century-old automobile industry campaign to push pedestrians out of the streets, jaywalking is now, in most places, punishable by a hefty ticket ranging from $68 in Seattle to as much as $250 in New York City.

This could be consigned to the realm of being merely annoying, but in fact, there’s a serious injustice embedded in the process.  According to research in several cities, policing pedestrian behavior disproportionately affects low-income people and people of color.  Plus, making jaywalking an offense doesn’t keep people safe.  Now, a growing number of cities and states are striking these antiquated statutes from their books....

[D]ata from cities across the country show that Black people are routinely cited for jaywalking at higher rates than white people, making their simple act of crossing the street grounds for potentially dangerous police interactions.  In 2017, a sweeping investigation by ProPublica and the Florida Times-Union (republished with permission on Mother Jones) found that Black people received 55 percent of pedestrian tickets in Jacksonville, despite comprising just 29 percent of the city’s population.  Those tickets were also overwhelmingly focused on residents of poor neighborhoods.

The Jacksonville sheriff’s office admitted that enforcement of rules against crossing on a yellow light, crossing outside the crosswalk, or “failing to cross a street at a right angle” were often an excuse to “stop suspicious people and question them for guns and or drugs.”  Critics of jaywalking laws say that that’s part of the problem. 

Though not mentioned in this piece, I could not help but keep thinking of the emerging debate in Second Amendment jurisprudence related to government claims that "nonlawabiding" people are to be excluded from the protections of the Second Amendment.  I doubt many folks would really think the "crime" of jaywalking should lead to losing some protections of the Bill of Rights, but even that possibility is why concerns regarding over-criminalization can often connect to other kinds of concerns about state power and individual rights.

Some early commentary on notable end-of-year federal criminal justice reform developments

I hope and expect that the new charging and sentencing memos issued by AG Garland (basics here), as well as the failure of the out-going Congress to pass any significant criminal justice reforms, will garner extended attention and analysis in the weeks and months ahead.  Usefully, I have already seen some first-cut accountings from a variety of sources:

From Filter, "The Limits of AG’s Guidelines Against Crack-Powder Sentencing Disparity"

From LISA-Legalinfo, "Blue Christmas for Criminal Justice Reforms"

From MSNBC, "Racist war on drugs is the real winner of Congress’s massive spending bill"

From Reason, "The Failure To Enact Marijuana Banking and Crack Sentencing Reforms Is a Window on Congressional Dysfunction"

From San Diego Union-Tribune, "Creating different punishments for crack and powder cocaine never made sense, unscientific"

Looking forward, the practical impact of AG Garland's charging and sentencing memos, the continued implementation of the FIRST STEP Act, and especially the coming work of the newly, fully-staffed U.S. Sentencing Commission will be topics to watch closely in the weeks and months ahead.  So, I am tentatively hopeful that the lack of much lasting federal criminal justice reform in 2022 is just a precursor to a big 2023 ahead.

"Felony Sentencing in New York City: Mandatory Minimums, Mass Incarceration, and Race"

The title of this post is the title of this new report from the Center for Court Innovation authored by Fred Butcher, Amanda B. Cissner, and Michael Rempel.   The full report runs over 30 pages, but this CCI webpage provides this two-page summary which includes this brief accouting of the report's findings:

Of the more than 65,000 such arrests in 2019, we found a third of people arrested were potentially subject to a mandatory minimum.  That doesn’t mean everyone ultimately received a minimum prison sentence, but the wide eligibility confers outsized power on prosecutors; in plea negotiations, prosecutors can wield the threat of a higher charge with guaranteed, generally lengthy, prison time against someone hesitant to accept a plea.

Arrests, and with them exposure to charges eligible for a mandatory minimum, are the formal entry-point to the criminal legal system.  Our analysis found Black people accounted for 51% of people arrested on a felony in New York City in 2019, more than double their representation in the general population; for white people, the figure was 11%. For arrests with exposure to a mandatory minimum, the disparity was even more striking: Black and Hispanic/Latinx New Yorkers combined to make up 91% of such arrests; for white people, the proportion was only 7%.

Looking at the subgroup of those convicted of a felony, Black people were also more likely to suffer imprisonment and almost six of ten convictions carrying a mandatory minimum sentence went to a Black person.

Indeed, while race was a significant predictor of whether someone convicted of a felony received a prison sentence — 58% of Black versus 43% of white people — an even stronger predictor was a prior felony conviction. Here the overlap — or, for people of color, doublebind — is considerable.  Systemic issues such as underinvestment paired with over-policing of Black and Brown communities increase the likelihood that members of these communities will acquire the kind of criminal history that can trigger, not only a sentence of incarceration, but also exposure to a mandatory minimum (whether actualized or used against them to leverage a less favorable plea).

US Attorney General Garland releases new federal charging guidelines that include instructions to treat crack like powder cocaine

I thought the increasing prospects for statutory sentencing reforms from Congress might be the big federal sentencing news of this week, but this new Washington Post piece suggests that even bigger news is coming from the Department of Justice.   Here are the (incomplete) details from the first press piece:

Attorney General Merrick Garland on Friday instructed federal prosecutors to end sentencing disparities in cases involving the distribution of crack and powder cocaine after decades of law enforcement policy disproportionately treating crack offenders more punitively.  Garland’s move effectively seeks to eliminate the significant difference in the amount of powder cocaine relative to crack cocaine that is required to be in a suspect’s possession to trigger mandatory minimum federal sentences if convicted.

Critics of the longtime policy have said it is a relic of the Washington’s misguided war-on-drugs era that targeted Black and Brown communities, resulted in overpopulated prisons and strained federal and local resources at the expense of more effective strategies. Proponents of treating crack dealers more punitively have said that form of the drug is faster acting and capable of producing more intense highs. Under current federal policy, possession of 28 grams of crack cocaine would trigger a mandatory minimum prison sentence of five years, compared to 500 grams of powder cocaine.

Garland’s memo to the nation’s U.S. attorneys directs prosecutors to charge “pertinent statutory quantities that apply to powder cocaine” when pursuing crack cases and to “advocate for a sentence consistent with powder cocaine rather than crack cocaine.” The move, long sought by civil rights advocates, comes as the Equal Act, a legislative bill that would eliminate the disparity, has been stalled in the Senate amid objections from some Republicans after passing the House last year with bipartisan support.

Joe Biden, then a U.S. senator from Delaware, crafted the 1986 crime bill that initially set a 100-to-1 ratio between powder and crack cocaine to trigger mandatory minimum sentences. The Fair Sentencing Act 0f 2010 reduced the ratio to 18-to-1. The Biden administration endorsed the Equal Act last year....

Garland’s memo cited Justice Department testimony last year to the Senate Judiciary Committee that such a disparity “is simply not supported by science, as there are no significant pharmacological differences between the drugs: they are two forms of the same drug, with powder readily convertible into crack cocaine.”

During his confirmation hearing in February 2021, Garland told Sen. Cory Booker (D-N.J.), a co-sponsor of the Equal Act, that the inequitable sentencing in crack and powder cocaine cases had a “disparate impact on communities of color.” “There’s no justification for this, and we should end this,” Garland said at the time. He also said that powder cocaine “is as dangerous with respect to crime rates as crack cocaine, both of which have now been unfortunately overtaken by fentanyl and the opioids. But both of those are bad problems [and] equalizing penalties for crack and powder should have no difference with respect to our ability to fight violent crime.”

Garland aides said the new guidelines, which will take effect within 30 days, are part of a broader set of changes the attorney general is making to the Justice Department’s charging policies.  The department under Garland continues to support the passage of the Equal Act, aides said; unlike a legislative change to federal policy, they noted, Garland’s memo would not retroactively apply to previous convictions.

Jim Pasco, executive director of the National Fraternal Order of Police, said in an interview that he supported Garland’s directive. Though the group has opposed eliminating the sentencing disparity in the past, and it did not take a position on the Equal Act, Pasco said the police union’s views have evolved “as there’s been more clarity around the science.” Pasco said the Biden administration has supported police with additional resources to fight a rise in violent crime, and the union does not believe the policy changes on cocaine sentencing will adversely affect the efforts of law enforcement.

Garland’s action could face blowback from Republicans who have championed a bill that would reduce the sentencing disparity but not eliminate it entirely. In April, Sens. Charles E. Grassley (Iowa), Mike Lee (Utah), Roger Wicker (Miss.) and Lindsey O. Graham (S.C.) proposed legislation that would reduce the ratio of powder-to-crack cocaine that would trigger mandatory minimum sentences to 2.5-to-1. Unlike the Equal Act, however, that bill would achieve greater parity in part by increasing penalties for powder cocaine users.

Aggravatingly, as of 2pm EST, the new AG Garland crack charging memo is not available on the Justice Department's website.  I am very eager to see thsi memo, as well as whatever else appears in the "broader set of changes the attorney general is making to the Justice Department’s charging policies" before commenting at length.  But I will start by noting that federal law does provide at least one possible means for Garland’s memo to retroactively apply to some previous crack convictions: AG Garland could have prosecutors bring, and vocally and consistently support, motions for sentence reductions under 3582(c)(1)(A) for crack offenders who are still serving unduly long and unfair crack sentences based in the unjust disparity.

UPDATE:  A helpful reader made sure to get me copies of these new charging memos from AG Garland.  Here they are (with commentary to follow in coming days):

Download Attorney General Memorandum - General Department Policies Regarding Charging Pleas and Sentencing

Download Attorney General Memorandum - Additional Department Policies Regarding Charges Pleas and Sentencing in Drug Cases