Sentencing Law and Policy

"Felony Disenfranchisement and the Nineteenth Amendment"

The title of this post is the title of this interesting essay just recently posted to SSRN and authored by Michael Gentithes. Here is its abstract:

Today’s arguments in support of felony disenfranchisement laws bear striking similarities to the arguments of anti-suffragists more than a century earlier.  Both suggest that a traditionally subordinated class of citizens is inherently incapable of bearing the responsibility that the right to vote entails.  Both argue that some potential votes are somehow less worthy than others, and thus the authors of those votes ought to be excluded from the marketplace of political ideas.  And both assert a distinction between the votes of some citizens thought to be of higher political value, and those thought unworthy of having their voices counted in the political arena.

This Article examines the historical response to those arguments and suggests that they can be applied forcefully in the contemporary debate over felony disenfranchisement. Suffragists raised two arguments in response to coverture-based contentions against women enfranchisement: first, that men simply did not represent women’s interests in politics, instead subordinating them ever further both in family structures and the public sphere; and second, that women had something important to add to the political conversation that would be missing as long as they were excluded from the debate.  Similarly, felony disenfranchisement laws are based upon the fiction that there is a distinction between good votes of most citizens and bad votes of criminals, and therefore excluding former felons’ voices from the political arena is acceptable because their interests will be sufficiently served by the good votes of others.  But the voices of former felons should be heard, both because of the perspective those voices will bring to modern problems caused by growing incarceration rates, and because those voices may add important and worthy ideas to the political marketplace that would be absent if their contributions are excluded.

US Department of Justice sets two more execution dates, including for the only woman on federal death row

In this July post I wondered aloud "How many federal death row prisoners does Attorney General William Barr want to see executed in 2020?".  My main point in that post was that, after the completion of an initial three federal executions that month thanks to SCOTUS lifting lower court stays, it seemed to me that AG Barr would likely be able to have completed how ever many executions he decides to set.  Thereafter, the US Justice Department set two more execution dates for August and two more for September, and those executions were completed to bring the 2020 total of federal executions up to seven. 

For anyone who might have thought AG Barr would be content with seven execution in 2020, this DOJ press release from late Friday afternoon might have come as a bit of a surprise.  This release is titled  "Executions Scheduled for Two Federal Inmates Convicted of Heinous Murders" and here are excerpts:

Attorney General William P. Barr today directed the Federal Bureau of Prisons to schedule the executions of two federal death-row inmates, both of whom were convicted of especially heinous murders at least 13 years ago.

• Lisa Montgomery fatally strangled a pregnant woman, Bobbie Jo Stinnett, cut open her body, and kidnapped her baby.  In December 2004, as part of a premeditated murder-kidnap scheme, Montgomery drove from her home in Kansas to Stinnett’s home in Missouri, purportedly to purchase a puppy.  Once inside the residence, Montgomery attacked and strangled Stinnett—who was eight months pregnant—until the victim lost consciousness.  Using a kitchen knife, Montgomery then cut into Stinnett’s abdomen, causing her to regain consciousness.  A struggle ensued, and Montgomery strangled Stinnett to death.  Montgomery then removed the baby from Stinnett’s body, took the baby with her, and attempted to pass it off as her own.  Montgomery subsequently confessed to murdering Stinnett and abducting her child.  In October 2007, a jury in the U.S. District Court for the Western District of Missouri found Montgomery guilty of federal kidnapping resulting in death, and unanimously recommended a death sentence, which the court imposed....  Montgomery is scheduled to be executed by lethal injection on December 8, 2020, at U.S. Penitentiary Terre Haute, Indiana. 
• Brandon Bernard and his accomplices brutally murdered two youth ministers, Todd and Stacie Bagley, on a military reservation in 1999.  After Todd Bagley agreed to give a ride to several of Bernard’s accomplices, they pointed a gun at him, forced him and Stacie into the trunk of their car, and drove the couple around for hours while attempting to steal their money and pawn Stacie’s wedding ring.  While locked in the trunk, the couple spoke with their abductors about God and pleaded for their lives.  The abductors eventually parked on the Fort Hood military reservation, where Bernard and another accomplice doused the car with lighter fluid as the couple, still locked in the trunk, sang and prayed.  After Stacie said, “Jesus loves you,” and “Jesus, take care of us,” one of the accomplices shot both Todd and Stacie in the head—killing Todd and knocking Stacie unconscious.  Bernard then lit the car on fire, killing Stacie through smoke inhalation.  In June 2000, a jury in the U.S. District Court for the Western District of Texas found Bernard guilty of, among other offenses, two counts of murder within the special maritime and territorial jurisdiction of the United States, and unanimously recommended a death sentence....  Bernard is scheduled to be executed by lethal injection on December 10, 2020, at U.S. Penitentiary Terre Haute, Indiana.  One of his accomplices, Christopher Vialva, was executed for his role in the Bagleys’ murder on September 22, 2020.

Recent prior related posts:

• Justice Department announces the scheduling of four new federal execution dates
• SCOTUS, by 5-4 vote, vacates new injunction that had been blocking scheduled federal executions ... UPDATE: execution of Daniel Lewis Lee now completed
• Federal execution déjà vu: after SCOTUS votes 5-4 to vacate injunction, feds complete another morning lethal injection 
• Feds, revving up machinery of death, complete third execution of week
• How many federal death row prisoners does Attorney General William Barr want to see executed in 2020?
• Amidst seemingly little attention, federal government seemingly poised to carry out two more executions this week
• Native American death sentence carried out as feds complete record-setting fourth execution of 2020 
• Federal government completes its fifth execution of 2020
• Federal government completes its sixth execution in 2020 
• Federal government completes its seventh (and final?) execution in 2020

UPDATE: I just realized that I failed to note this September 30 DOJ press release concerning another execution date set for November 19:

Attorney General William P. Barr today directed the Federal Bureau of Prisons to schedule the execution of Orlando Cordia Hall, who was sentenced to death after kidnapping, raping, and murdering a 16-year-old girl in 1994....  In October 1995, a jury in the U.S. District Court for the Northern District of Texas found Hall guilty of, among other offenses, kidnapping resulting in death, and unanimously recommended a death sentence, which the court imposed.  Hall’s convictions and sentences were affirmed on appeal more than 20 years ago, and his initial round of collateral challenges failed nearly 15 years ago.  In 2006, Hall received a preliminary injunction from a federal district court in Washington, D.C., based on his challenge to the then-existing federal lethal-injection protocol.  That injunction was vacated by the district court on Sept. 20, 2020, making Hall the only child murderer on federal death row who is eligible for execution and not subject to a stay or injunction.  Hall’s execution is scheduled for Nov. 19, 2020, at U.S. Penitentiary Terre Haute, Indiana.

Spotlighting new research detailing increased post-release deaths for those placed in solitary confinement

I sense that we have known for many decades about the profound harms that solitary confinement can created for mental and physical health, and yet there are still tens of thousands of persons subject to this extreme form of imprisonment. And thanks to this new Prison Policy Initiative piece, titled "New data: Solitary confinement increases risk of premature death after release," I learned of new research documenting how time spent in solitary confinement increases the risk of deaths by suicide, homicide, and opioid overdose.  This research was published in a medical journal late last year under the title "Association of Restrictive Housing During Incarceration With Mortality After Release."  Here is part of a summary of the research by Andrea Fenster of PPI :

A recently published study of people released from North Carolina prisons confirms what many have long suspected: solitary confinement increases the risk of premature death, even after release.  Personal stories, like those of Kalief Browder’s isolation and subsequent suicide, are canaries in the coal mine.  Underneath seemingly isolated events, researchers now find that solitary confinement is linked to more deaths after release from prison.  These preventable deaths aren’t outliers; in the U.S., where the use of solitary confinement is widespread, an estimated 80,000 people are held in some form of isolation on any given day, and in a single year, over 10,000 people were released to the community directly from solitary.

The new study shows that the effects of solitary confinement go well beyond the immediate psychological consequences identified by previous research, like anxiety, depression, and hallucinations.  The authors, from the University of North Carolina, Emory University, and the North Carolina Departments of Public Safety and Public Health, find that any amount of time spent in solitary confinement increases the risk of death in the first year after individuals return to the community, including deaths by suicide, homicide, and opioid overdose....

The study identifies two additional factors correlated with a heightened risk of death after release: race and the amount (length and frequency) of solitary confinement.  All incarcerated people of color are more likely to die within a year of release, and the experience of solitary confinement only amplifies this racial disparity.  A previous study found that, compared to their share of the total prison population, Black men and women are overrepresented in solitary confinement, exposing them disproportionately to its harms. And unsurprisingly, more frequent placements in solitary confinement — as well as longer stays — are associated with worse outcomes across both white and nonwhite populations.

The Sentencing Project releases new disenfranchisement report, "Locked Out 2020: Estimates of People Denied Voting Rights Due to a Felony Conviction"

Via email this afternoon I received news of this notable new Sentencing Project report titled "Locked Out 2020: Estimates of People Denied Voting Rights Due to a Felony Conviction." Here is part of its "overview":

In the past 25 years, half the states have changed their laws and practices to expand voting access to people with felony convictions.  Despite these important reforms, 5.2 million Americans remain disenfranchised, 2.3 percent of the voting age population.

In this presidential election year, the question of voting restrictions, and their disproportionate impact on Black and Brown communities, should receive greater public attention....

For the first time, we present estimates of the percentage of the Latinx population disenfranchised due to felony convictions.  Although these and other estimates must be interpreted with caution, the numbers presented here represent our best assessment of the state of felony disenfranchisement as of the November 2020 election.  Our key findings include the following:

• As of 2020, an estimated 5.17 million people are disenfranchised due to a felony conviction, a figure that has declined by almost 15 percent since 2016, as states enacted new policies to curtail this practice.  There were an estimated 1.17 million people disenfranchised in 1976, 3.34 million in 1996, 5.85 million in 2010, and 6.11 million in 2016.

• One out of 44 adults — 2.27 percent of the total U.S. voting eligible population — is disenfranchised due to a current or previous felony conviction.

• Individuals who have completed their sentences in the eleven states that disenfranchise at least some people post-sentence make up most (43 percent) of the entire disenfranchised population, totaling 2.23 million people.

• Rates of disenfranchisement vary dramatically by state due to broad variations in voting prohibitions.  In three states — Alabama, Mississippi, and Tennessee more than 8 percent of the adult population, one of every thirteen people, is disenfranchised.

• We estimate that nearly 900,000 Floridians who have completed their sentences remain disenfranchised, despite a 2018 ballot referendum that promised to restore their voting rights.  Florida thus remains the nation’s disenfranchisement leader in absolute numbers, with over 1.1 million people currently banned from voting — often because they cannot afford to pay court-ordered monetary sanctions or because the state is not obligated to tell them the amount of their sanction.

• One in 16 African Americans of voting age is disenfranchised, a rate 3.7 times greater than that of non-African Americans.  Over 6.2 percent of the adult African American population is disenfranchised compared to 1.7 percent of the non-African American population.

• African American disenfranchisement rates vary significantly by state.  In seven states — Alabama, Florida, Kentucky, Mississippi, Tennessee, Virginia, and Wyoming — more than one in seven African Americans is disenfranchised, twice the national average for African Americans.

• Although data on ethnicity in correctional populations are still unevenly reported, we can conservatively estimate that over 560,000 Latinx Americans or over 2 percent of the voting eligible population are disenfranchised.

• Approximately 1.2 million women are disenfranchised, comprising over one-fifth of the total disenfranchised population.

"Addressing Trauma and Victimization in Women’s Prisons"

The title of this post is the title of this notable new research report from folks at the Urban Institute. The full 58-page report is available here, and here is the abstract from this report page:

Women are the fastest-growing incarcerated population in the United States.  Despite this drastic increase, correctional institutions often lack awareness and understanding of the victimization that many — if not most — incarcerated women experience before incarceration (Bloom 2015).  Many women bring past trauma into prison settings, where they often experience similar violence, abuse, and trauma.  In 2017, the National Institute of Justice funded the Urban Institute — and its partners the Center for Effective Public Policy, the Correctional Leaders Association, and the National Center for Victims of Crime — to conduct a national scan of practice to examine the extent to which correctional facilities provide services and programming that address incarcerated women’s prior and current trauma and victimization experiences.

The scan of practice drew on data from semi-structured interviews with leaders in 41 state departments of corrections (DOCs), 15 women’s prisons using innovative and/or comprehensive approaches to address trauma, case studies of three women’s facilities and a national survey of state domestic violence (DV) and sexual assault (SA) coalitions. Analyses suggest wide variation in how DOCs address women’s past victimization and trauma with most DOCs relying on programming and partnerships with local victim services providers or other community-based organizations to address women’s trauma; few provide robust victim services to incarcerated women.  We discuss these and other findings in the report along with the challenges DOCs face in addressing women’s prior trauma and victimization, and recommendations for how to make correctional facilities more trauma responsive.

Notable perspectives from the Prairie State on "Principles to Build a More Equitable Criminal Justice System"

I just noticed, and found quite notable, this new press release from yesterday coming from the Illinois Governor's office.  The document is fully titled "Gov. Pritzker Proposes Principles to Build a More Equitable Criminal Justice System: Criminal Justice Reform Principles Aim to Modernize Criminal Code, End Cycles of Recidivism, and Increase Police Accountability."  I'd recommend the lengthy document in full, and here is the statement of "seven principles for an equitable criminal justice system" that are at the heart of the document (with bolding in the original):

The seven principles for an equitable criminal justice system are the following:

• End the use of the cash bail system and limit pretrial detention to only those who are a threat to public safety. The governor remains committed to ending a system that disproportionately forces low-income families and people of color into a disruptive cycle of unearned detention and instability.  The cash bail system would be replaced by a risk assessment to determine the likelihood of a defendant's appearance at trial and if there is a threat to public safety posed by a defendant's pre-trial release.
 
• Modernize sentencing laws on theft and drug offenses and use a public health approach to address mental health and addiction. Illinois will decrease unnecessary admissions into prison, match modernized sentencing standards across the country, and limit criminal justice system involvement for non-violent offenders who need and would benefit from a public health intervention. 
 
• Reduce excessive lengths of stay in prison by providing pathways for people to earn opportunities for rehabilitation. The state will increase access to sentence credit and time-limited supervised release while limiting penalty enhancements and short-term commitments that disproportionately trap low-income families and people of color in generational cycles of incarceration.
 
• Prioritize rehabilitation and reduce the risk of recidivism by increasing access to housing and healthcare for returning residents.  The state is committed to expanding opportunities, supports, and services for people who are exiting the prison system so that they are set up to succeed upon return to their communities, and which will save taxpayers money by reducing the number of people trapped in a cycle of recidivism. 
 
• Increase police accountability and transparency for police officers and police departments. Illinois will set the standard for the nation in professionalizing and setting statewide standards for police officers.  We will advocate for licensing of police officers, strengthen the role of the State Police Merit Board, work alongside police departments to ensure compliance and proper use of body-worn cameras, create a state-level avenue to investigate systemic police misconduct, and remove barriers for civilians to report officer misconduct, like the signed affidavit requirement.
 
• Update and strengthen statewide standards for use of force by police officers. Illinois is committed to modernizing the legal standard for use of force and implementing common sense policies and trainings that are consistent with best practices and will improve police-community relations.  This includes requiring police officers to apply first aid after using force, prohibiting no-knock search warrants, requiring the use of de-escalation techniques, and requiring officers  to intervene and report when excessive force is used by another officer. 
 
• Improve interactions with police by decriminalizing minor non-violent offenses, improving police response to crowd control, and increasing language and disability access.  By decriminalizing minor non-violent offenses, creating policies and trainings for police response to non-violent crimes and protests, and increasing language and disability access for civilians, Illinois will establish a framework to improve community safety and trust.  

New AP report details lack of diversity in Trump Administration's picks for US Attorneys

The role and significance of prosecutors has become an area of growing interest and analysis among criminal justice scholars and advocates.  So this new AP piece, headlined "Trump’s top federal prosecutors are overwhelmingly white men," should be of interest for many reasons and to many people.  Here are a few excerpts:

The nation’s top federal prosecutors have become less diverse under President Donald Trump than under his three predecessors, leaving white men overwhelmingly in charge at a time of national demonstrations over racial inequality and the fairness of the criminal justice system.

The Associated Press analyzed government data from nearly three decades and found that a persistent lack of diversity in the ranks of U.S. attorneys has reached a nadir in the Trump administration.  Eighty-five percent of his Senate-confirmed U.S attorneys are white men, according to AP’s analysis, compared with 58% in Democratic President Barack Obama’s eight years, 73% during Republican George W. Bush’s two terms and at most 63% under Democrat Bill Clinton.

White men lead 79 of the 93 U.S. attorney’s offices in a country where they make up less than a third of the population. Nine current U.S. attorneys are women.  Two are Black, and two Hispanic....

The enduring imbalance leaves U.S. attorneys looking less like the people they serve, and is in stark contrast to the population of federal prisons, where a disproportionate share of those incarcerated are Black....

White House spokesman Judd Deere did not answer questions about the diversity of U.S. attorneys under Trump’s watch, but said in a statement that the administration has “worked closely with U.S. Senators to identify the best candidates to serve as the chief law enforcement officer in their districts back home, and we are very proud of the work that they are doing to keep all Americans safe.”...

A lack of diversity has long been an issue throughout the federal law enforcement and criminal justice systems.  In some places it’s grown more acute under Trump.  Then-FBI Director James Comey said in 2016 that the bureau’s failure to recruit more minorities had become “a crisis.” In the U.S. Drug Enforcement Administration, recent court filings show 8% of the agency’s more than 4,000 special agents are Black while about 77% are white.

An AP analysis also found nearly 86% of the 206 federal judges confirmed to lifetime positions under Trump have been white — the highest rate of white judicial appointments since George H.W. Bush’s presidency.  Two-thirds of Trump’s judicial appointees have been white men; fewer than a quarter have been women.

And at the top of the Justice Department, Trump’s two attorneys general — Barr and Sessions — are also white.  That compares with the past three administrations in which Black people, a Latino man and the first female attorney general served as the nation’s top law officer.

"#MeToo and Mass Incarceration"

The title of this post is the title of this new piece on SSRN authored by Aya Gruber.  Here is its abstract:

This Symposium Guest Editor’s Note is an adapted version of the Introduction to The Feminist War on Crime: The Unexpected Role of Women’s Liberation in Mass Incarceration (UC Press 2020).  The book examines how American feminists, in the quest to secure women’s protection from domestic violence and rape, often acted as soldiers in the war on crime by emphasizing white female victimhood, expanding the power of police and prosecutors, touting incarceration, and diverting resources toward law enforcement and away from marginalized communities.  Today, despite deep concerns over racist policing and mass incarceration, many feminists continue to assert that gender crime law is not tough enough.  This punitive impulse, I argue, is dangerous and counterproductive, and should be abandoned.  History reveals that feminists' carceral approach often exacerbated social inequalities by expanding and underwriting the repressive criminal system, that harmed defendants, victims, and their families and communities.

This essay begins with the feminist defense attorney dilemma I felt as a law student, when I trained to represent marginalized people against state prosecutorial power but did so with a dread of defending horrific rapists and batterers. Later, as a public defender, I represented clients like Jamal, an accused abuser whose story is related in detail, and I saw firsthand the costs of the tough-on-crime machine that carceral feminism built.  The essay then moves to the present day, with a discussion of the #MeToo movement and campus rape reform.  I counsel contemporary feminists that their noble fight against sexual misconduct can easily collapse into simple crime-control politics and urge them to articulate their complex beliefs about gender and violence without relying on penal discourses and institutions that are steeped in hypermasculinity and gratuitous violence.

Lots and lots of notable (and very consequential?) new criminal justice reforms now law in California

California has long been a very big and very interesting and very complicated state when it comes to criminal justice and sentencing reform. This fascinating state story continued with a lot of new bills being signed yesterday by Gov Gavin Newsom. This local article (which somewhat tracks this official document from the Governors office) provides some of the details and provides especially helpful links to the underlying legislation.  Here are excerpts focused on criminal justice reforms with my bolding added for follow-up comments:

Gov. Gavin Newsom signed landmark bills into law on Wednesday, the last day available for the governor to sign legislation.  The docket included racial justice, criminal justice, and policing reform, as well as legislation related to cannabis, rental housing, and banning hazardous chemicals and ingredients in cosmetics. 

AB 3121 and AB 3070 by Assemblymember Shirley N. Weber, PhD (D-San Diego) will establish anti-discrimination jury selection and "will advance the conversation of Reparations and develop ideas for how to overcome implementation challenges," respectively, according to the CA State Assembly Democratic Caucus. 

AB 2542, also known as the California Racial Justice Act, by Assemblymember Ash Kalra (D-San Jose) prohibits the use of race, ethnicity or national origin to seek or obtain convictions or sentences....

Newsom signed bills related to criminal justice and police reform as well on Wednesday.

AB 1185 authorizes counties to establish a sheriff oversight board.

AB 1196 bans police use of chokeholds.

AB 1506 creates a division within the Department of Justice to review the use-of-force policy of the agency and make recommendations, as well as require a state prosecutor to investigate officer involved shootings.

AB 901 will make sure youth are referred to community programs rather than placing them on probation or having them be a "ward of the court."

SB 203 establishes stronger protections for minors who are interrogated by police.

AB 2542 requires judges to reconsider convictions and sentences if defense attorneys were able to prove that people who share the defendant’s race, ethnicity or national origin were routinely charged with a more serious offense, or sentenced more harshly, than defendants of other races.... 

SB 1290 will expand on earlier efforts to decrease fines and fees on youth and families involved with the justice system.

SB 203 ups the age of right to legal counsel for youth aged 15 and younger to youth aged 17 and younger.

SB 480 standardizes police uniforms, making specific mention that police cannot wear a uniform with a camouflage print or other patterned material that closely resembles an army or state active militia uniform.... 

SB 823 by the Committee on Budget and Fiscal Review takes the first, formal step of closing the Division of Juvenile Justice, which will help to provide youth rehabilitative services closer to home.

AB 901 by Assemblymember Mike Gipson (D-Carson), which will end the practice of referring youth who are having problems at school to probation programs.

AB 1950 by Assemblymember Sydney Kamlager (D-Los Angeles), which caps probation terms to a maximum of one year for misdemeanor offenses and two years for felonies....

Newsom also signed the following bills:...

• AB 732 by Assemblymember Rob Bonta (D-Alameda) – County jails: prisons: incarcerated pregnant persons....
• AB 1304 by Assemblymember Marie Waldron (R-Escondido) – California MAT Re-Entry Incentive Program. 
• AB 1775 by Assemblymember Reginald Byron Jones-Sawyer, Sr. (D-Los Angeles) – False reports and harassment.
• AB 2321 by Assemblymember Reginald Byron Jones-Sawyer, Sr. (D-Los Angeles) – Juvenile court records: access.
• AB 2425 by Assemblymember Mark Stone (D-Scotts Valley) – Juvenile police records.
• AB 2512 by Assemblymember Mark Stone (D-Scotts Valley) – Death penalty: person with an intellectual disability.
• AB 2606 by Assemblymember Sabrina Cervantes (D-Riverside) – Criminal justice: supervised release file.
• AB 3043 by Assemblymember Reginald Byron Jones-Sawyer, Sr. (D-Los Angeles) – Corrections: confidential calls.
• AB 3234 by Assemblymember Philip Ting (D-San Francisco) – Public Safety. 
• SB 1126 by Senator Brian W. Jones (R-Santee) – Juvenile court records.

This long list of signed bills has my head spinning, and the title of this post highlights that I am particularly curious and particularly uncertain about how consequential all these bills are likely to be.  I have bolded the two bills that, as a sentencing fan, strike me as particularly intriguing and potentially very consequential. 

AB 1950, which caps the duration of probation terms, has been described by REFORM Alliance as the "most transformative probation reform bill in the country."  This new Fox News article, headlined "Jay-Z, Meek Mill's REFORM Alliance celebrate 'major victory' with Calif. Gov. Newsom passing probation bill," talks about this new bill and the efforts and people behind making it law.  Here is a snippet:

On Wednesday, REFORM announced on Instagram it was celebrating a "MAJOR REFORM VICTORY." Through its verified Instagram account, the alliance thanked California Gov. Gavin Newsom for signing AB 1950 into law.  "This bill will help put hundreds of thousands of Californians on probation in positions to succeed and exit the criminal justice system for good.  Thank you @GavinNewsom!" the Instagram post reads.  In a follow-up post, the organization wrote, "This is just the beginning. This is how we #fightdifferent."...

REFORM's CEO Van Jones explained in a video statement that the law will essentially "make people be on probation for much less time" and will "give people a much better shot at getting out of that system, getting what they need and getting on their way."  The premise is to reduce the number of probation violations.

AB 2542, which provides for a California Racial Justice Act, seems to be the biggest and broadest racial justice act ever passed by any state because it seems to apply to all convictions and sentences and not just death sentences as did comparable Racial Justice Act passed in Kentucky and North Carolina years ago.  Notably, Michelle Alexander wrote this op-ed last week endorsing this bill and explaining its reach this way (with my emphasis added):

The new law will make it possible for a person charged or convicted of a crime to challenge racial, ethnic, and national-origin bias in their case through relevant evidence, including: 

▪ Explicit racial bias by an attorney, judge, law enforcement officer, expert witness, or juror involved in the case.

▪ Use of racially discriminatory language in court and during the criminal proceedings, whether or not intentional.

▪ Racial bias in jury selection, such as removing all or nearly all Black, brown, Native, Indigenous and people of color from the jury.

▪ Statistical disparities in charging and convictions — that is, evidence that people of one race are disproportionately charged or convicted of a specific crime or enhancement.

▪ Statistical disparities in sentencing — that is, evidence that people of one race receive longer or more severe sentences, including the death penalty or life without parole.

I believe that the new California Racial Justice Act only applies prospectively, and so we will not see extensive litigation over past sentences as we did in North Carolina (and which led to the repeal of that state's Racial Justice Act). But even as just a prospective measure, I am inclined to predict that this new statute could prove highly consequential in all sorts of ways.

I am hopeful that smart folks who focus on the California criminal justice system might soon blog about to these bills and their potential impacts. And, of course, another wave of reform in California might not be far away: as this article highlights under the headline "Three ballot measures test attitudes on crime in California," a set of criminal justice initiatives being put to California voters next month will add to this remarkable 2020 reform chapter in the Golden State.

"The Perils of 'Old' and 'New' in Sentencing Reform"

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

The introduction of actuarial risk assessment tools into the sentencing process is a controversial, but popular trend in the states.  While tools' proliferation is debated from numerous angles, scholarship tends to emphasize why this reform is new or old, and focus on whether and how this trend may improve or undermine sentencing law and policy.  This Essay suggests that the institutionalization of actuarial risk assessments into the sentencing process in response to social and political critiques of criminal administration is both a new and old idea.  It situates the proliferation of actuarial risk assessments in the context of technical guidelines created to structure and regulate judicial sentencing discretion in the 1980s and beyond.  It then examines debates about two conceptual issues — selective incapacitation and equality — to highlight that technical sentencing reforms raise recurring questions at sentencing, even as social perspectives on resolving those questions are shifting.

Rather than using the "old" nature of these issues as evidence that actuarial risk assessments should proliferate, however, this Essay urges critical reflection on the turn toward the technical in the present day, in the face of mass incarceration.  It urges scholars to dispense of the "old" and "new" concept when reflecting on whether and why actuarial risk assessments are proliferating in the states.  It also encourages scholars to draw on the expansive methodological approaches applied to study of sentencing guidelines when considering this reform going forward.

Federal government completes its seventh (and final?) execution in 2020

The federal government this evening completed is seventh execution in the span of just over two months.  This AP article, headlined "Feds put first Black inmate to death since execution restart," provides these details:

A man who killed a religious couple visiting Texas from Iowa was executed Thursday, the first Black inmate put to death as part of the Trump administration’s resumption of federal executions.

Christopher Vialva, 40, was pronounced dead shortly before 7 p.m. EDT after receiving a lethal injection at the federal prison in Terre Haute, Indiana.  In a last statement, Vialva asked God to comfort the families of the couple he had killed, saying, “Father … heal their hearts with grace and love.” His final words were: “I’m ready, Father.”...

A report this month by the Washington, D.C.-based Death Penalty Information Center said Black people remain overrepresented on death rows and that Black people who kill white people are far more likely to be sentenced to death than white people who kill Black people.  Of the 56 inmates currently on federal death row, 26 — or nearly 50% — are Black, according to center data updated Wednesday; 22, or nearly 40%, are white and seven, around 12% were Latino. There is one Asian on federal death row.  Black people make up only about 13% of the population....

Vialva was 19 years old in 1999 when he shot Todd and Stacie Bagley and burned them in the trunk of their car.  Vialva’s lawyer, Susan Otto, has said race played a role in landing her client on death row for killing the white couple.  Vialva was the seventh federal execution since July and the second this week.  Five of the first six were white, a move critics argue was a political calculation to avoid uproar.  The sixth was Navajo.

“I believe when someone deliberately takes the life of another, they suffer the consequences for their actions,” Todd Bagley’s mother, Georgia, wrote in a statement released after the execution.  “Christopher’s mother had the opportunity to visit him for the past 21 years,” she wrote.  “We have had to wait for 21 years for justice and closure. We cannot be with our children for visits or to see them on holidays. We were denied that privilege,” Bagley’s mother wrote.

In the video statement his lawyers released Thursday, Vialva expressed regret for what he’d done and said he was a changed man. “I committed a grave wrong when I was a lost kid and took two precious lives from this world,” he said. “Every day, I wish I could right this wrong.”

As detailed at this DPIC webpage, there remain 55 persons on federal death row, ten of which were convicted more than two decades ago. As of this writing, Attorney General Barr has not yet sought to set dates for any additional federal executions, but he has moved quickly in the past.

"Conviction, Imprisonment, and Lost Earnings: How Involvement with the Criminal Justice System Deepens Inequality"

The title of this post is the title of this notable new report from the Brennan Center. A Foreword to report was authored by Joseph Stiglitz, and here is part of its text:

America is approaching a breaking point.  For more than four decades, economic inequality has risen inexorably, stunting productivity, weakening our democracy, and leaving tens of millions struggling to get by in the world’s most prosperous country.  The crises that have rocked the United States since the spring — the coronavirus pandemic, the resulting mass unemployment, and a nationwide uprising for racial justice — have made the inequities plaguing American society more glaring than ever.

This year’s intertwined emergencies have also driven home a reality that some would rather ignore: that the growing gap between rich and poor is a result not just of the market’s invisible hand but of a set of deeply misguided policy choices.  Among them, this groundbreaking report reveals, is our entrenched system of mass incarceration.  Mass incarceration reflects and exacerbates so many dimensions of this country’s divides — in income and health, in voice and power, in access to justice, and most importantly, over race.

The number of people incarcerated in America today is more than four times larger than it was in 1980, when wages began to stagnate and the social safety net began to be rolled back.  We’ve long known that people involved in the criminal justice system — a group that’s disproportionately poor and Black — face economic barriers in the form of hiring discrimination and lost job opportunities, among other factors.  This report demonstrates that more people than previously believed have been caught up in the system, and it quantifies the enormous financial loss they sustain as a result; those who spend time in prison miss out on more than half the future income they might otherwise have earned.

Ascertaining through careful statistical analyses just how costly the mass incarceration system has been to the people ensnared by it is a major achievement.  These findings reframe our understanding of the issue: As a perpetual drag on the earning potential of tens of millions of Americans, these costs are not only borne by individuals, their families, and their communities.  They are also system-wide drivers of inequality and are so large as to have macroeconomic consequences....

These costs come on top of other enormous costs imposed on society by our mass incarceration system.  Some states have spent as much on prisons as on universities.  The pandemic will make public funds even scarcer.  More money spent on incarcerating more people will weaken our future, while the same money spent on expanding our universities will lead to a stronger 21st century economy.

Mass incarceration has been a key instrument in voter suppression, because people with criminal records are deprived of the right to vote in some states, and in many states former prisoners are responsible for re-registering once they are released.  This undermines democracy: since poor and Black people suffer from mass incarceration disproportionately, they will be underrepresented in our electorate.

Meanwhile, a nationwide reckoning over deep-rooted racial injustice is forcing our country to come to terms with the ways in which these injustices have been perpetuated in the century and a half since the end of slavery.  For the past four decades, mass incarceration — with the deprivation of political voice and economic opportunity that is so often associated with it — has been at the center.  It renders economic mobility for so many Black Americans nearly impossible....

This report shows what needs to be done to stop mass incarceration. Equally important, it shows how to deal with its legacy: the large number of American citizens with criminal records.  It was wrong that they lost so many of their formative years, often for minor infractions. It is doubly wrong that they suffer for the rest of their lives from the stigma associated with imprisonment.  For them, and for our entire society, we need to minimize the consequences of that stigma.

There is much that has to be done if our society is to fully come to terms with our long history of racial injustice.  Stopping mass incarceration is an easy place to begin.  This report makes a compelling case for the enormous economic benefits to be derived from doing so.

DPIC releases big new report on "Enduring Injustice: the Persistence of Racial Discrimination in the U.S. Death Penalty"

The Death Penalty Information Center this morning released this big new report highlighting the history of racialized application of the ultimate punishment in the US.  This DPIC press release partially summarizes its coverage and context, and here are excerpts:

As social movements pressure policymakers to redress injustices in the criminal legal system and to institute reforms to make the process more fair and equitable, the Death Penalty Information Center (DPIC) today released, “Enduring Injustice: the Persistence of Racial Discrimination in the U.S. Death Penalty.”  This report provides an in-depth look at the historical role that race has played in the death penalty and details the pervasive role racial discrimination continues to play in the administration of capital punishment today.

“The death penalty has been used to enforce racial hierarchies throughout United States history, beginning with the colonial period and continuing to this day,” said Ngozi Ndulue, DPIC’s Senior Director of Research and Special Projects and the report’s lead author.  “Its discriminatory presence as the apex punishment in the American legal system legitimizes all other harsh and discriminatory punishments.  That is why the death penalty must be part of any discussion of police reform, prosecutorial accountability, reversing mass incarceration, and the criminal legal system as a whole.”  Ms. Ndulue previously served as the NAACP’s Senior Director of Criminal Justice Programs and as a capital appeals lawyer.

“Racial disparities are present at every stage of a capital case and get magnified as a case moves through the legal process,” said Robert Dunham, DPIC’s Executive Director and the report’s editor.  “If you don’t understand the history — that the modern death penalty is the direct descendant of slavery, lynching, and Jim Crow-segregation — you won’t understand why. With the continuing police and white vigilante killings of Black citizens, it is even more important now to focus attention on the outsized role the death penalty plays as an agent and validator of racial discrimination.  What is broken or intentionally discriminatory in the criminal legal system is visibly worse in death-penalty cases. Exposing how the system discriminates in capital cases can shine an important light on law enforcement and judicial practices in vital need of abolition, restructuring, or reform.”

Racial bias persists today, as evidenced by cases with white victims being more likely to be investigated and capitally charged; systemic exclusion of jurors of color from service in death-penalty trials; and disproportionate imposition of death sentences against defendants of color. The report provides compelling evidence of racial bias in the modern death penalty, including:

• A 2015 meta-analysis of 30 studies showed that the killers of white people were more likely than the killers of Black people to face a capital prosecution.

• A study in North Carolina showed that qualified Black jurors were struck from juries at more than twice the rate of qualified white jurors. As of 2010, 20 percent of those on the state’s death row were sentenced to death by all-white juries.

• Since executions resumed in 1977, 295 African-Americans defendants have been executed for the murder of a white victim, while only 21 white defendants have been executed for the murder of an African-American victim.

• A 2014 mock jury study of more than 500 Californians found that white jurors were more likely to sentence poor Latinx defendants to death than poor white defendants.

• Exonerations of African Americans for murder convictions are 22 percent more likely to be linked to police misconduct.

New report details racial disparities in every stage of the Massachusetts criminal justice system

Via email I received word of this notable new report released today by the Harvard Law School Criminal Justice Policy Program (CJPP) titled simply "Racial Disparities in the Massachusetts Criminal System."  Here is a brief account of the 100+-page report and its findings from the text of the email that I received:

People of color are drastically overrepresented in Massachusetts state prisons.  According to the Massachusetts Sentencing Commission’s analysis of 2014 data, the Commonwealth significantly outpaced national race and ethnicity disparity rates in incarceration, imprisoning Black people at a rate 7.9 times that of White people and Latinx people at 4.9 times that of White people.

In an attempt to better understand the sources of these disparities, Chief Justice Ralph D. Gants of the Supreme Judicial Court of Massachusetts asked Harvard Law School to research racial disparities in the Massachusetts criminal system.

CJPP collected administrative data from several criminal justice agencies, analyzing over 500,000 cases. In our report, we detail the results of our analysis of every stage of the criminal process. Our findings include:

• Black and Latinx people are overrepresented in the criminal system.  Although Black people make up only 6.5% of the state’s population, African Americans are the subjects of 17.1% of criminal court cases. Similarly, Latinx people constitute only 8.7% of the Massachusetts population but 18.3% of the cases.  By contrast, White people, who make up roughly 74% of the Massachusetts population, account for only 58.7% of cases in the criminal system.
• Black and Latinx people sentenced to incarceration in Massachusetts receive longer sentences than their White counterparts, with Black people receiving sentences that are an average of 168 days longer and Latinx people receiving sentences that are an average of 148 days longer.
• Racial and ethnic differences in the type and severity of initial charge account for over 70 percent of the disparities in sentence length, overshadowing all other factors, including defendants’ criminal history and demographics, court jurisdiction, and neighborhood characteristics.
• Among the subset of cases where the person was sentenced to incarceration in a state prison (i.e. cases involving charges that carry the longest potential sentences and where the racial disparity is largest), Black and Latinx people are convicted of charges roughly equal in seriousness to their White counterparts despite facing more serious initial charges and longer sentences.
• Black and Latinx people charged with drug offenses and weapons offenses are more likely to be incarcerated and receive longer incarceration sentences than White people charged with similar offenses. This difference persists after controlling for charge severity and other factors.

"Racial Sympathy and Support for Capital Punishment: A Case Study in Concept Transfer"

The title of this post is the title of this recent paper from multiple authored that I just noticed on SSRN.  Here is its abstract:

Beliefs about race, especially racial resentment, are key predictors of public support for capital punishment and punitiveness generally.  Drawing on a conceptual innovation by political scientist Jennifer Chudy, we explore the utility of transferring into criminology her construct of racial sympathy — or Whites’ concern about Blacks’ suffering.

First, across three data sets, we replicate Chudy’s finding that racial sympathy and resentment are empirically distinct constructs.  Second, based on a national-level 2019 YouGov survey (n = 760 White respondents) and consistent with Chudy’s thesis, racial sympathy is then shown to be significantly related to the race-specific view that capital punishment is discriminatory but not support for the death penalty or harsher courts.  Racial sympathy also is positively associated with advocacy of rehabilitation as the main goal of prison. Notably, in all models, racial resentment has robust effects, increasing punitive sentiments.  Taken together, the results suggest that racial sympathy is a concept that can enrich criminologists’ study of how race shapes crime policy preferences in the United States and beyond.

"Fees, Fines, and the Funding of Public Services: A Curriculum for Reform"

The title of this post is the title of this interesting new reader produced by a group of law school centers. Here is the full introduction to the collection of articles:

Since 2018, the Liman Center at Yale Law School and Harvard Law School’s Criminal Justice Policy Program (CJPP), in partnership with the Fines & Fees Justice Center and the Berkeley Law Policy Advocacy Clinic, have collaborated to mitigate the problems faced by people of limited means and resources who interact with criminal punishment systems around the United States.  Through a series of workshops and materials, we have examined how law has enabled and, on occasion, limited these harms, experienced disproportionately by communities of color.

Budget pressures are part of what drives state and local governments to rely on monetary sanctions.  Reform efforts have, at times, been stymied by arguments that governments “need” the money generated by regressive fines and fees. In 2008, during and after the Great Recession, state and local governments responded to sudden budget pressures by searching for new streams of revenues— including from a host of legal assessments.  Given that experience, we know that the economic disruptions created by the current COVID-19 crisis will likely result in governments’ considering additional use of monetary sanctions and “user” fee financing to generate revenue.  The current economic constraints place strains on subnational budgets even more acute than those experienced a dozen years ago.  Thus, we fear that governments may scale up the imposition and the enforcement of monetary sanctions.  More tools are needed to resist these efforts, as the economic effects of the pandemic will frame the years to come.

Knowledge of subnational systems of taxing and budgeting and of fiscal policymaking processes can be put to use to reduce and to end governments’ reliance on user fees for courts and for other aspects of criminal systems.  This reader aims to help experts in public finance to understand the misuse of court-based assessments which are regressive revenue streams.  Subsequent volumes will provide a primer on public finance for people knowledgeable about the law and practices of unfair monetary sanctions through an overview of how money is collected and allocated at the state and local level.  These materials interact with ongoing seminars, sometimes virtual, to link people expert in public finance with their counterparts seeking to reform unfair monetary sanctions.

Through monographs such as this, we hope to support work underway to shape just and equitable revenue-generation mechanisms that avoid imposing harmful costs on vulnerable individuals, families, and communities.  This is the third volume in this series.  See ARTHUR LIMAN CENTER FOR PUBLIC INTEREST LAW, WHO PAYS? FINES, FEES, BAIL, AND THE COST OF COURTS (2018), ARTHUR LIMAN CENTER FOR PUBLIC INTEREST LAW, ABILITY TO PAY. See also Inability to Pay: Court Debt Circa 2020, N.C. L. REV.

We should note that, to be concise, we have provided just a snapshot of a rich literature.  In the few essays excerpted here, we have cut sections and references, and we provide the original publication information to enable easy access to the originals.  This project is made possible by support from Yale Law School, the Liman Center, and Arnold Ventures. Our hope is that through these many efforts, fairer and more just practices will result.

Effective and timely review of the state of disenfranchisement for those with criminal convictions

This lengthy new Stateline piece, headlined "More People With Felony Convictions Can Vote, but Roadblocks Remain," provides an effective review of the realities of felon disenfranchisement circa 2020. I recommend the full piece and here are excerpts:

In every state except Maine and Vermont, people convicted of felonies are stripped of their voting rights while in prison. In most states, that ban extends to those on probation or parole, while some states have additional time and fee requirements, disenfranchising millions of people.

[Iowa Gov Kim] Reynolds restored automatic voting rights to most people with felony records after they complete their sentence, including parole or probation; the exceptions are people with homicide convictions, who must file an application.  Under the order, an estimated 60,000 additional people now are eligible to vote in the Hawkeye State.

They join the ranks of hundreds of thousands of others with felony convictions who are newly eligible to vote in the general election this year.  Since the 2016 election, Colorado, Florida, Kentucky, Louisiana, Nevada, New Jersey, New York and Virginia also have implemented or expanded voting rights for some people convicted of felonies.

The political stakes are up for debate.  Roughly 630,000 people with felony convictions can vote this year in Florida, nearly six times the 113,000 vote-margin by which Donald Trump beat Hillary Clinton in the state.  But research has shown that like other voters, people convicted of felonies who are registered don’t necessarily vote.

Still, groups ranging from liberal political organizations to the nonpartisan League of Women Voters are working furiously to find these newly eligible voters as registration deadlines approach.  But the pandemic is complicating in-person registration drives, as are the uncertainties around mail-in voting.  And eight states explicitly require people with felony records to pay some form of court costs and fees before registering.

In 2016, an estimated 6.1 million people or 1 in 40 adults were unable to vote because of a felony conviction, according to the Sentencing Project, a Washington, D.C.-based research and advocacy organization. The project found that Black people were the most likely to be disenfranchised: More than 7 percent of the adult African American population, or 1 in 13 people, could not vote because of a felony conviction....

In Kentucky, an estimated 170,000 people with felony records were given voting rights in December under an order from Democratic Gov. Andy Beshear. As in Iowa, the order doesn’t automatically apply to people convicted of certain violent offenses. Grassroots advocacy organization Kentuckians for the Commonwealth has been working for years on expanding voting rights. Since Beshear’s order, and with the help of other organizations, it has put together a list of more than 60,000 names and contact information for people who now can register to vote....

In 2018, 65 percent of Florida voters supported a constitutional amendment to give voting rights to people with felony records who had completed parole or probation, with the exception of those convicted of murder or sexual offenses. But the GOP-controlled legislature last year passed a measure to require that restitution, fines and fees be paid before voting rights are restored. Over half of the estimated 1.4 million people convicted of felonies in the state have outstanding court costs or restitution, according to the Brennan Center for Justice at the New York University Law School.

Lawsuits have ensued over the constitutionality of the law, which opponents liken to a poll tax.  A federal judge in May found the requirement to be unconstitutional. But Republican Gov. Ron DeSantis appealed to the 11th U.S. Circuit Court of Appeals, which ruled in his favor.  Voting rights groups asked the U.S. Supreme Court to weigh in; the court in July left in place the appeals court’s order.  The issue remains before the appeals court, which heard arguments in the case Aug. 18.

Florida is known for close elections, and some political observers think a majority of the new voters would vote Democratic.  But Sean Morales-Doyle, deputy director of voting rights and elections in the Brennan Center’s Democracy Project, dismisses the notion that politics drive enfranchisement efforts.  “The decisions about who has the right to vote should never be based on an assessment of how we think someone is going to vote,” he said.  “We should be for or against voting rights restoration because of the merits of the policy, not the politics.”...

Beyond the push toward the November elections, voting rights activists eventually want to extend voting to people on probation or parole and people in prison.  “Residents who are required to pay taxes, be good citizens, they should also have a role in determining who governs them,” said Nicole Porter, advocacy director of state and local policy for the Sentencing Project.

A referendum on the ballot in California in November would give parolees voting rights.  Efforts are ongoing in other states, including Connecticut, where legislation proposed by Secretary of the State Denise Merrill, a Democrat, to extend voting rights to people on parole died this year.

"What We Got Wrong in the War on Drugs"

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

The War on Drugs is effectively over.  Drugs won.  This essay addresses some of the mistakes we made in that futile effort.  Allowing racism to motivate action and impede reform was a primary error.  So was failing to understand that narcotics crime is simply different than other types of criminalized behavior in several fundamental ways. 

In whole, we largely addressed the narcotics trade as a moral failing rather than a market — and never got around to recognizing the size and shape of that market or to using market forces to control it.  Ronald Reagan compared the War on Drugs to the Battle of Verdun, and he was right: fortunes were spent, many lives were lost, and nothing really changed.

"Pipelines to Power: Encouraging Professional Diversity on the Federal Appellate Bench"

The title of this post is the title of this notable new report from the Center for American Progress and authored by Maggie Jo Buchanan. A few excerpts will highlight why I think this is an important topic for a sentencing blog:

The U.S. federal judiciary holds incredible sway over life in America. From the U.S. District Courts and the U.S. Courts of Appeals all the way up to the U.S. Supreme Court, the individuals holding lifetime appointments to the bench determine the contours of America’s laws and whose rights are protected under those laws.  But professional diversity on the federal appellate courts is severely lacking, with significant implications for the type of legal expertise underlying the opinions these judges issue.  Only about 1 percent of sitting circuit court judges have spent the majority of their careers as public defenders or within a legal aid setting.  In contrast, the federal appellate bench is swamped with those who spent the majority of their careers in private practice or as federal prosecutors — making up more than 70 percent of all sitting appellate judges.  No sitting judge spent the majority of their career with a nonprofit civil rights organization....

This lack of diversity not only reflects the closed and elitist nature of the federal appellate bench but also represents a barrier to the courts’ ability to develop intellectually rich jurisprudence grounded in an awareness of a broad set of individuals’ experiences across the country.  To improve this state of affairs, significant disruptions are needed — from law school through every stage of an attorney’s prejudicial career—to broaden pathways to the federal bench and challenge long-held assumptions on the “right” type of attorney to take up a gavel....

As noted previously, the appellate bench is stacked with individuals from private practice backgrounds — particularly men from all race and ethnicities, who are significantly more likely than women to be from this professional setting.  Nearly two-thirds of circuit court judges spent the majority of their careers in private practice. The proportion of white male judges and male judges from communities of color from this field is close to 70 percent for both groups.  That proportion drops to less than 60 percent of the white women on the bench and less than half of women of color — speaking to the continuing discrimination women face when rising through the ranks of many law firms....

The second-most represented sector is the federal government.  The majority—more than 60 percent—of those judges spent the bulk of their careers within the federal government as prosecutors. Only one spent the majority of her career as a federal public defender.  Several of these judges held other positions throughout the U.S. Department of Justice (DOJ), and still others in this category spent the majority of their careers in the military or at other federal agencies, such as the U.S. Patent and Trademark Office.

White male judges in this category are less likely than judges from other demographics to have spent the majority of their careers in federal government.  In fact, male judges from communities of color are the demographic group most likely to have worked within federal government for the bulk of their careers, with the most common career path being a prosecutor.  The role of federal prosecutor was also the most common career path among all female judges who spent the majority of their careers in federal service.

The third-most represented sector is made up of individuals who spent the majority of their careers in state and/or local government.  Unlike their federal counterparts, however, the majority of these judges spent their government service careers in roles other than a state or local prosecutor.  Most common was a variety of different roles within a state attorney general’s office, with careers within a governor’s office or as a city or state solicitor also being common.

Finally, the number of judges who spent the majority of their careers as public defenders at the state level, including Washington, D.C., doubles the federal number — albeit from one judge to two.  Women in general are more likely than men to have worked at the state or local level, with a full one-third of judges who are women of color having spent the majority of their careers in such roles and white women ranking second-most likely to have done so.

"Prosecutors' Vital Role in Reforming Criminal Justice"

The title of this post is the headline of this recent Governing commentary authored by Lucy Lang.  Here are excerpts:

The nation's criminal-justice system is at a pivotal moment. With rising public revulsion at the brutality inflicted on Black Americans by law enforcement, racial-justice groups have brought conversations around racial disparities and the justice system into the mainstream.

Prosecutors have played a historic role in exacerbating these racial disparities, and they have an equally vital role to play in the systemic reforms that are needed to turn an unfair system around.  To ensure that reforms are set up to succeed, it is incumbent on modern prosecutors to collect as much relevant data as they can and analyze it to measure disparities and evaluate policies that seek to create a more-just system.  To that end, prosecutors will benefit from a careful review of a recently published report from the Council on Criminal Justice (CCJ) in seeking to divert more cases successfully out of the system.

Promisingly, this national study of data from 2000 to 2016 reveals a significant reduction in racial disparities across most facets of the criminal-justice system.  The numbers show that during that period crime declined and, consistent with public demand, so did arrests.  In addition to shrinking the system's impact overall, the CCJ report reflects that front-end policies designed to reduce arrests and divert cases from criminal prosecution early in the process also reduced differences in treatment across race.

Seeking to further these front-end decreases, a new set of materials from the Institute for Innovation in Prosecution and Criminal Law Practitioner about prosecutor-led diversion details data-collection processes in different district attorneys' offices and how data can inform diversion programs for low-level crimes....

A vital area for data analysis related to the potential for diversion programs for violent crime is the role that a charged person's criminal history should play in indictment, sentencing and release decisions.  A person who has prior convictions often faces ever-increasing penalties for new crimes, subject to the exercise of prosecutorial discretion.  A first-time arrest for a felony may result, for example, in the offer of a pre-indictment misdemeanor plea by the prosecutor, while a second or third felony arrest is more likely to result in an indictment.  At the pleading stage, someone with no prior convictions facing a felony indictment is more likely to avoid incarceration compared to a person with prior convictions.

This undermines the notion that once someone has done his or her time, they have repaid whatever debt to society the crime purportedly incurred.  Given the uneven application of the system across demographic categories, such practices may contribute to racially disparate sentence recommendations from prosecutors as well as disparate denials of release by parole boards.

Criminal-justice reformers face some hard questions. Chief among these are how to appropriately respond to crimes of violence and whether racial disparities might be reduced by removing the criminal history of a person charged with a crime as a substantial factor during sentencing. It is incumbent upon prosecutors to look carefully at their data and consider diversion options at each stage of their decision-making.

Oregon drug decriminalization initiative would produce "significant reductions in racial/ethnic disparities" according to state commission

As reported in this local press piece, headlined "Oregon Criminal Justice Commission: Initiative Petition 44 Will Nearly Eliminate Racial Disparities for Drug Arrests, Convictions," a notable state commission has reported that a notable state ballot initiative will have a notable impact on equity in the criminal justice system. Here are the basics from the press piece:

Racial disparities in drug arrests will drop by 95% if Oregon voters pass a drug treatment and decriminalization measure in November.  That’s according to a new, independent government research report written by the Oregon Criminal Justice Commission.  Oregon voters will see a summary of the report in the voter pamphlet that the Oregon Secretary of State mails to every registered Oregon voter in November.

In addition to a reduction in arrest disparities, conviction disparities would be “narrowed substantially” if Initiative Petition 44 passes, the report said, and overall convictions would fall.  For example, convictions of Black and Indigenous Oregonians would drop by 94%....

The analysis by the Oregon Criminal Justice Commission is the first one ever prepared for a ballot measure.  Lawmakers have had the ability to ask for such an analysis since 2014 and did this year after being urged to do so by the More Treatment campaign, which supports Initiative Petition 44....

Initiative Petition 44, which will soon get a ballot measure number, changes Oregon’s approach to drugs.  The initiative would expand access around the state to drug addiction treatment and recovery services, paid for with a portion of taxes from legal marijuana sales. In addition, the measure decriminalizes low-level drug possession.  It does not legalize drugs.

About 8,900 Oregonians are arrested every year in cases where simple drug possession is the most serious offense, according to the latest numbers from the Oregon Criminal Justice Commission.  That’s the equivalent of about one arrest an hour.  Black and Indigenous Oregonians are disproportionately targeted....

In addition to decriminalizing drug possession, Initiative Petition 44 would specifically provide funding for treatment, peer support, housing, and harm reduction. Marijuana tax revenue that’s in excess of $45 million a year would help pay for it.  Oregon expects to collect roughly $284.2 million in marijuana tax revenue during the 2021-2023 biennium, or roughly $140 million a year.

Initiative Petition 44 has received more than 70 endorsements from organizations across the state, including the Coalition of Communities of Color, NAACP Portland, Eugene-Springfield NAACP, Unite Oregon, Central City Concern, the Confederated Tribes of Grand Ronde and more.  The MoreTreatment campaign to pass Initiative Petition 44 does not face any organized opposition.

The full seven-page analysis by the Oregon Criminal Sentencing Commission is available at this link, and here is part of the conclusion:

Overall, if IP 44 were to pass, the Oregon Criminal Justice Commission estimates that approximately 1,800 fewer Oregonians per year would be convicted of felony PCS [possession of controlled substances]  and nearly 1,900 fewer Oregonians per year would be convicted of misdemeanor PCS.  Prior research suggests this drop in convictions will result in fewer collateral consequences stemming from criminal justice system involvement (Ewald and Uggen, 2012), which include the reduced ability to find employment, reduced access to housing, restrictions on the receipt of student loans, inability to obtain professional licensure, and others.

The CJC estimates that IP 44 will likely lead to significant reductions in racial/ethnic disparities in both convictions and arrests....

Similarly, it is estimated that disparities in arrests for PCS would fall as well. If arrests follow the same trends as were estimated for convictions, then the overall number of PCS arrests would fall from just over 6,700 to 615. In this case, the significant overrepresentation of Black Oregonians as measured by the RDR among those arrested for PCS would fall substantially, being reduced by nearly 95 percent. In addition, Native American Oregonians would go from being overrepresented, to underrepresented compared to white individuals.

Study details how Georgia execution rate is "substantially greater" for those convicted of killing white victims than for those convicted of killing black victims

This New York Times article, headlined "A Vast Racial Gap in Death Penalty Cases, New Study Finds," highlights new research on the intersection of race and the death penalty.  Here are excerpts from the press piece with a few of the original links to the original research:

Black lives do not matter nearly as much as white ones when it comes to the death penalty, a new study has found.  Building on data at the heart of a landmark 1987 Supreme Court decision, the study concluded that defendants convicted of killing white victims were executed at a rate 17 times greater than those convicted of killing Black victims.

There is little chance that the new findings would alter the current Supreme Court’s support for the death penalty. Its conservative majority has expressed impatience with efforts to block executions, and last month it issued a pair of 5-to-4 rulings in the middle of the night that allowed federal executions to resume after a 17-year hiatus.

But the court came within one vote of addressing racial bias in the administration of the death penalty in the 1987 decision, McCleskey v. Kemp. By a 5-to-4 vote, the court ruled that even solid statistical evidence of race discrimination in the capital justice system did not offend the Constitution....

The McCleskey decision considered a study conducted by David C. Baldus, a law professor who died in 2011.  It looked at death sentences rather than executions, and it made two basic points.  The first was that the race of the defendant does not predict the likelihood of a death sentence.  The second was that the race of the victim does.  Killers of white people were more than four times as likely to be sentenced to death as killers of Black people, Professor Baldus found.

The new study, published in The Harvard Civil Rights-Civil Liberties Law Review, examined not only death sentences but also whether defendants sentenced to death were eventually executed. “The problematic sentencing disparity discovered by Baldus is exacerbated at the execution stage,” wrote the study’s authors, Scott Phillips and Justin Marceau of the University of Denver. Professor Baldus’s study examined more than 2,000 murders in Georgia from 1973 to 1979, controlling for some 230 variables.

Though some have argued that Professor Baldus did not consider every possible variable, few question his bottom-line conclusion, and other studies have confirmed it. In 1990, the General Accounting Office, now called the Government Accountability Office, reviewed 28 studies and determined that 23 of them found that the race of the victim influenced “the likelihood of being charged with capital murder or receiving a death sentence.” “This finding was remarkably consistent across data sets, states, data collection methods and analytic techniques,” the report said. A 2014 update came to a similar conclusion.

One factor Professor Baldus could not analyze, given the decades that often pass between sentencings and executions, was whether the race of the victim correlated to the likelihood of the defendant being put to death. The new study, the product of exhaustive research, supplied the missing information. It found that 22 of the 972 defendants convicted of killing a white victim were executed, as compared with two of the 1,503 defendants convicted of killing a Black victim.

The new study also confirmed just how rare executions are. Of the 127 men sentenced to death in the Baldus study, 95 left death row thanks to judicial action or executive clemency; five died of natural causes; one was executed in another state; one escaped (and was soon beaten to death in a bar fight); and one remains on death row.

A more general and less granular 2017 study compared two sets of nationwide data: homicides from 1975 to 2005 and executions from 1976 to 2015. Its conclusions were similarly striking. About half of the victims were white, that study found, but three-quarters of defendants put to death had killed a white person. About 46 percent of the victims were Black, but only 15 percent of defendants who were executed had killed a Black person.

Eric M. Freedman, a law professor at Hofstra, said courts and lawmakers had failed to confront the question of racial bias in the administration of capital punishment. “The continuing adherence of the Supreme Court to McCleskey is a continuing statement that Black lives do not matter,” he said. “The continuing failure of Congress and the state legislatures to remedy the situation is a continuing admission that the states are unable to run racially unbiased death penalty systems.”

I always find in-depth exploration of the Baldus study and McClesky so interesting and important, in part because David Baldus discovered that even in Georgia in the 1970s, it appears that the race of the defendant had relatively little or no impact on who was ultimately sentenced to death.  That strikes me as itself a remarkable and encouraging finding, even though he reached the corresponding and discouraging finding that the race of the victim did have a huge impact on who was ultimately sentenced to death.  But, as Prof Randall Kennedy astutely explored in this terrific article published right after the McClesky decision, one logical response to these kinds of race-of-the-victim disparity studies is to call for far more executions of persons who kill black victims to signal in this context that black lives matter as much as white ones.

According to my quick searching using the DPIC database, it appears that only 3 of 25 persons executed in the United States in 2018 had black victims, whereas in 2019 there were 6 of 22 persons executed in the US who had black victims.  Should we be "celebrating" that black lives mattered more than twice as much in the operation of the US machinery of death in 2019 than in 2018?  Circa 2020 when the feds are now poised to be the most active of executioners, should we all be urging Attorney General Barr, as he continues adding names to the list of condemned to now be marched into the federal death chamber, to be working harder to pick from federal death row those killers with black victims?

My point here is just to recall in this context Prof Kennedy's important insight that the most ready response to these kinds of race-of-the-victim disparities may be to encourage more (capital) punishment, especially if we end up talking about these disparities in terms of certain victims not getting equal justice.   I would also add that I wish there was a lot more of this kind of race-of-the-victim sentencing disparity conducted concerning non-capital crimes.  I suspect and fear that there may be even more pernicious individual and community harms resulting from persistently unequal sentencing for those who commit sexual or property offenses with black victims.  

"Criminal Deterrence: A Review of the Missing Literature"

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

This review of the criminal deterrence literature focuses on the questions that are largely missing from many recent, excellent, comprehensive reviews of that literature, and from the literature itself.  By “missing” I mean, first, questions that criminal deterrence scholars have ignored either completely or to a large extent.  These questions range from fundamental (the distributional analysis of the criminal justice system), to those hidden in plain sight (economic analysis of misdemeanors), to those that are well-know yet mostly overlooked (the role of positive incentives, offender’s mental state, and celerity of punishment).  I also use “missing” to refer to the areas where substantial relevant knowledge exists but is largely disregarded within the criminal deterrence research program.  The empirical analysis of environmental and tax compliance are two stark examples.  Finally, I stretch “missing” to describe topics that have been both studied and reviewed, but where substantial challenges remain.  These include the theoretical explanation for the role of offense history, the proper accounting for the offender’s gains, the estimation of the costs of various crimes, and the cost-benefit analysis of crime-reduction policies.

Among the literature’s missing pieces, several stand out both on their own and because they combine to produce a highly unfortunate result.  First, the literature makes only a minor effort to estimate the cost of crime, and essentially no effort to estimate the cost of white-collar offenses.  Combined with no centralized reporting of white-collar crimes and, therefore, no empirical analysis of them, the literature adds to the impression — not supported by the available evidence — that street crime is a great social problem while white-collar crime is a minor one.  Second, the literature fails to treat misdemeanors (and misdemeanor enforcement) as an independent subject of study.  This creates an impression — also unjustified — that thirteen million or so misdemeanor charges a year — and countless millions of stops, frisks, and interrogations that lead to no charges — all heavily skewed by race and class — are not a major social problem either. Third, the literature is only starting to develop a benefit-cost analysis of various crime-reducing strategies.  This analysis almost exclusively considers measures reflected in the optimal deterrence model and, therefore, internal to the criminal justice system.  This creates an impression — almost surely false — that deterrence is the only means of reducing future crime. Finally, the literature ignores distributional analysis altogether, even though the burdens of crime and the criminal justice system vary dramatically, predictably, and disturbingly by race and income.  By disregarding this variation, the literature may be reinforcing it. 

For all these reasons, the criminal deterrence literature may well be contributing to the overwhelming, singular focus of American society and law enforcement on the forceful deterrence of street crime. Addressing the missing pieces would enrich the literature, expand its appeal and policy-relevance, and enable academics to contribute to the effort of setting the US criminal justice system on the path of long-overdue structural reforms.

Big new ACLU and HRW report details "How Probation and Parole Feed Mass Incarceration in the United States"

The quoted portion of the title of this post is part of the title of this huge new report by Human Rights Watch and the American Civil Liberties Union fully titled "Revoked: How Probation and Parole Feed Mass Incarceration in the United States." This important 200+ page report includes these passages in its "summary":

Probation, parole, and other forms of supervision are marketed as alternatives to incarceration in the United States. Supervision, it is claimed, will keep people out of prison and help them get back on their feet.

Throughout the past 50 years, the use of probation (a sentence often imposed just after conviction) and parole (served after incarceration) has soared alongside jail and prison populations. As of 2016, the last year for which supervision data is available, 2.2 million people were incarcerated in United States jails and prisons, but more than twice as many, 4.5 million people — or one in every 55 — were under supervision.  Supervision rates vary vastly by state, from one in every 168 people in New Hampshire, to one in every 18 in Georgia.

Over the past several decades,arbitrary and overly harsh supervision regimes have led people back into US jails and prisons — feeding mass incarceration.  According to the Bureau of Justice Statistics (BJS), in the late 1970s, 16 percent of US state and federal prison admissions stemmed from violations of parole and some types of probation.  This number climbed to a high of 36 percent in 2008, and, in 2018, the last year for which data is available, was 28 percent.  A different set of data for the previous year from the Council of State Governments, which includes all types of probation violations — but is limited to state prison populations — shows that 45 percent of all US state prison admissions stemmed from probation and parole violations.  These figures do not include people locked up for supervision violations in jails, for which there is little nationwide data.  Black and brown people are both disproportionately subjected to supervision and incarcerated for violations.

This report documents how and why supervision winds up landing many people in jail and prison — feeding mass incarceration rather than curtailing it.  The extent of the problem varies among states, and in recent years multiple jurisdictions have enacted reforms to limit incarceration for supervision violations.  This report focuses on three states where our initial research indicated that — despite some reforms — the issue remains particularly acute: Georgia, Pennsylvania, and Wisconsin.

Drawing on data provided by or obtained from these states, presented here for the first time, and interviews with 164 people incarcerated for supervision violations, family members, government officials, practitioners, advocates, and experts, we document the tripwires in these states leading to incarceration.  These include burdensome conditions imposed without providing resources; violations for minor slip-ups; lengthy incarceration while alleged violations are adjudicated; flawed procedures; and disproportionately harsh sentences for violations.  The report shows that, nationwide,most people locked up for supervision violations were not convicted of new offenses — rather, they were incarcerated for breaking the rules of their supervision, such as for using drugs or alcohol, failing to report address changes, or not following the rules of supervision-mandated programs.  Of those who were incarcerated for new offenses, in our focus states, many were for conduct like possessing drugs; public order offenses such as disorderly conduct or resisting arrest; misdemeanor assaultive conduct; or shoplifting....

The root causes of these violations, the report documents, are often a lack of resources and services, unmet health needs, and racial bias.The report also draws attention to marked racial disparities in who is subjected to supervision and how authorities enforce it. In practice, supervision in many parts of the US has become a system to control and warehouse people who are struggling with an array of economic and health-related challenges, without offering meaningful solutions to those underlying problems.

"Will The Reckoning Over Racist Names Include These Prisons?"

The question in the title of this post is the headline of this interesting Marshall Project piece.  Here is a snippet:

While the killing of George Floyd has galvanized support for tearing down statues, renaming sports teams and otherwise removing markers of a (more) racist past, the renewed push for change hasn’t really touched the nation’s prison system. But some say it should. Across the country, dozens of prisons take their names from racists, Confederates, plantations, segregationists, and owners of slaves. “Symbols of hate encourage hate, so it has been time to remove the celebration of figures whose fame is predicated on the pain and torture of Black people,” said DeRay McKesson, a civil rights activist and podcast host.

Some candidates for new names might be prisons on former plantations. In Arkansas, the Cummins Unit—now home to the state’s death chamber—was once known as the Cummins plantation (though it’s not clear if the namesake owned slaves). In North Carolina, Caledonia Correctional Institution is on the site of Caledonia Plantation, so named as a nostalgic homage to the Roman word for Scotland....

James E. Ferguson — namesake of the notoriously violent Ferguson Unit [in Texas near Huntsville — was a governor in the 1910s who was also an anti-Semite and at one point told the Texas Rangers he would use his pardoning power if any of them were ever charged with murder for their bloody campaigns against Mexicans, according to Monica Muñoz Martinez, historian and author of “The Injustice Never Leaves You.” Ferguson got forced out of office early when he was indicted and then impeached. Afterward, he was replaced by William P. Hobby, a staunch segregationist who opposed labor rights and once defended the beating of an NAACP official visiting the state to discuss anti-lynching legislation. Hobby, too, has a prison named after him....

To many experts, the idea of changing prison names feels a bit like putting lipstick on a pig: No matter what you call it, a prison is still a prison. It still holds people who are not free. They are still disproportionately Black and brown. “If you are talking about the inhumanity, the daily violence these prisons perform, then who these prisons are named after is useful in understanding that,” Martinez said. “But what would it do to name it after somebody inspiring? It’s still a symbol of oppression.”

But to Anthony Graves, a Texas man who spent 12 years on death row after he was wrongfully convicted of capital murder, the racist names are a “slap in the face of the justice system itself.” New names could be a powerful signal of new priorities. “At the end of the day the mentality in these prisons is still, ‘This is my plantation and you are my slaves,’” he said. “To change that we have to start somewhere and maybe if we change the name we can start to change the culture.”

"Visualizing the racial disparities in mass incarceration"

The title of this post is the title of this notable new briefing by Wendy Sawyer at the Prison Policy Initiative.  The subtitle of this piece provides an overview: "Racial inequality is evident in every stage of the criminal justice system - here are the key statistics compiled into a series of charts." I recommend the whole briefing, and here is a taste in text and visuals:

Recent protests calling for radical changes to American policing have brought much-needed attention to the systemic racism within our criminal justice system. This extends beyond policing, of course: Systemic racism is evident at every stage of the system, from policing to prosecutorial decisions, pretrial release processes, sentencing, correctional discipline, and even reentry. The racism inherent in mass incarceration affects children as well as adults, and is often especially punishing for people of color who are also marginalized along other lines, such as gender and class.

Because racial disparity data is often frustratingly hard to locate, we’ve compiled the key data available into a series of charts, arranged into five slideshows focused on policing, juvenile justice, jails and pretrial detention, prisons and sentencing, and reentry. These charts provide a fuller picture of racial inequality in the criminal justice system, and make clear that a broad transformation will be needed to uproot the racial injustice of mass incarceration.

Following the slideshows, we also address five frequently asked questions about criminal justice race/ethnicity data....

Q: Where can I find data about racial disparities in my state’s criminal justice system?

A: Unfortunately, the more specific you want to get with race/ethnicity data, the harder it is to find an answer, especially one that’s up-to-date. State-level race and ethnicity data can be hard to find if you are looking to federal government sources like the Bureau of Justice Statistics (BJS).  BJS does publish state-level race and ethnicity data in its annual Prisoners series (Appendix Table 2 in 2018), but only every 6-7 years in its Jail Inmates series (most recently the 2013 Census of Jails report, Table 7).  The Vera Institute of Justice has attempted to fill this gap with its Incarceration Trends project, by gathering additional data from individual states.  Individual state Departments of Correction sometimes collect and/or publish more up-to-date and specific data; it’s worth checking with your own state’s agencies.....

Q: How are the data collected, and how accurate are the data?

A: Finally, the validity of any data depends on how the data are collected in the first place. And in the case of criminal justice data, race and ethnicity are not always self-reported (which would be ideal). Police officers may report an individual’s race based on their own perception – or not report it at all – and the surveys that report the number of incarcerated people on a given day rely on administrative data, which may not reflect how individuals identify their own race or ethnicity. This is why surveys of incarcerated people themselves are so important, such as the Survey of Inmates in Local Jails and the Survey of Prison Inmates, but those surveys are conducted much less frequently. In fact, it’s been 18 years since the last Survey of Inmates in Local Jails, which we use to analyze pretrial jail populations, and 16 years since the last published data from the Survey of Inmates were collected.

Is consideration of gender a must or a no-no in risk assessment tools?

The question in the title of this post is prompted by this latest new article in the on-going terrific Law.com/Legaltech News series unpacking modern risk assessment tools.  The headline and full subheadline of the piece reveals why it prompts this question: "Constitutional Brawl Looms Over How Risk Assessment Tools Account for Gender: Researchers say that scoring men and women differently is essential to account for risk assessment tools’ inherent gender bias.  But it’s an open question whether these adjustments are violating state or constitutional law."  I recommend the piece in full, and here are excerpts:

While there’s been a lot of focus on how risk assessment tools treat different racial demographics, little attention has been paid to another issue that may be just as problematic: how gender factors into risk scores. Researchers say accounting for the differences in gender ensures that risk assessments are more accurate, but exactly how they do so may run into constitutional challenges.

Legaltech News found one gender-specific risk assessment tool currently implemented in at least two states: the Women’s Risk and Needs Assessment (WRNA), which like the the Ohio Risk Assessment System (ORAS), was created by the University of Cincinnati. Kansas uses the WRNA to assess parolees’ risk in a women’s prison in Topeka, while Montana deploys it for women on probation or parole throughout its Department of Corrections....

The reason WRNA is needed in the first place is because most risk assessment instruments are validated (i.e. created) on a population that is majority male, in large part due to current gender imbalance in the criminal justice system (i.e. more men than women commit crimes and become incarcerated).

Dr. Teresa May, department director of the Community Supervision & Corrections Department in Harris County, Texas, also notes that on a whole, men have higher recidivism risk than women. “What we know is when you look at gender, almost always—and in fact I don’t know of an exception—the average rearrest rate [for women] is always much lower than men.”  Without accounting for these differences, a risk assessment could end up scoring women as higher risk than they actually are....

There’s an ongoing debate over whether using  gender as a risk factor, or assigning different cutoff risk levels to both males and females, violates the 14th Amendment. “Basically the Supreme Court of the U.S. has pursued what’s called an anti-classification approach to the equal protection law, which prohibits explicit use of factors like gender and race in making decisions,” says Christopher Slobogin, professor of law at the Vanderbilt University Law School.  He adds, “It is permissible, constitutionally, to use race or gender if there is a compelling state interest in doing so. But generally speaking, the use of race and gender is unconstitutional to discriminate between groups.”

However, in Slobogin’s own opinion, he does not think the “Constitution is violated simply because a risk assessment arrives at different results for similarly situated men and women.” He argues that a tool that uses gender as a risk factor and one that has different cutoff scores for genders are functionally the same, adding in those adjustments makes the instruments more accurate.

But others see it differently. Sonja Starr, professor of law at the University of Michigan Law School, for example, recently told the Philadelphia Inquirer that “use of gender as a risk factor plainly violates the Constitution.” 

Notable new polling and report on juve sentencing and punishment

I just saw that the folks at Data for Progress, The Justice Collaborative Institute, and Fair and Just Prosecution have produced this notable new report titled "A Majority of Voters Support an End to Extreme Sentencing for Children," on which the CFSY was consulted and offered support. The report discusses findings from two national polls indicating much of the public supports significant reform in juvenile sentencing and punishment. Here is part of its executive summary:

Extreme sentences have contributed to the United States being the number one incarcerator in the world — disparately impacting and devastating communities of color — and juvenile life-without-parole sentences are among the most draconian ongoing practices in our country.  These sentences essentially abandon young people to die in prison, despite the fact that children have great potential for rehabilitation and are deserving of second chances.

While a series of Supreme Court decisions in the past decade has altered the landscape of juvenile life-without-parole sentences, there are still too many men and women looking at spending the rest of their lives in prison for acts they committed as youth.  Juvenile life-without-parole sentences also contribute to the racial disparities in the criminal legal system overall: 80 percent of people serving life sentences for crimes they committed as youth are non-white.  More than 50 percent are Black.

But public discourse is shifting.  Reform that ends juvenile life-without-parole sentences is both popular with the public and simple common sense. Community members across the ideological spectrum understand that young people have the capacity to change, and want the justice system to rehabilitate young people, rather than imprison them for life.  Two recent national polls conducted by Data For Progress found that a majority of voters believe no one who committed a crime as a child should be sentenced to life in prison without the hope or the opportunity for a second chance.  Fewer than a third of voters disagree.

As the public conversation considers the future of policing and the meaning of public safety, criminal justice leaders must use this as an opportunity to think more broadly about the entire criminal justice system and make critical changes, especially changes that are sensible, supported by science, and in furtherance of racial equity.  There is no better place to begin than to give young people a chance at redemption and end juvenile life-without-parole.

Highlighting just one way that, even after the FIRST STEP Act, "Justice Still Eludes Crack Offenders"

Sarah E. Ryan has this notable new Crime Report commentary headlined simply "Why Justice Still Eludes Crack Offenders." I recommend the whole piece, and here are excerpts:

In early 2007, Carl Smith sold 1.69 grams of crack, less than half a teaspoon.  He also sold a teaspoon of powder cocaine.  A New Hampshire federal judge sentenced him to seventeen-and-a-half years imprisonment, the lowest end of the sentencing guidelines recommendation.

Last spring, Smith sought a sentence reduction under the First Step Act.  The district court denied the request because he was convicted under a statutory subsection unaffected by the new law. In essence, he had sold too little crack to go free.  According to an early 2020 analysis by the U.S. Sentencing Commission, the New Hampshire district courts granted just four sentence reductions under the First Step Act.  The district of Rhode Island granted four times more reductions; the district of Connecticut granted five times as many.

Nationally, the average sentence reduction was 71 months.  As a result, many defendants had served their time and could be released from incarceration.  But not Carl Smith. He remained locked up during a pandemic.  He appealed, arguing that the First Step Act covered his conviction.

After analyzing more than 500 First Step Act cases, including 90 relevant circuit court opinions, I know two things: this area of law remains in disarray and the circuit courts have largely dodged the tough issues.  They remain complicit in a decades-old mass incarceration scheme.

The now-familiar history of the crack laws omits one key fact: Congress knew early on that the drug laws were disproportionately affecting Black defendants.... In 1995, the Sentencing Commission told Congress that Black defendants accounted for nearly 90 percent of crack cocaine convictions and that most of their customers were white.  In 1996, the Bureau of Justice Statistics (BJS) reported the changing nature of the federal prison population using bold-faced sub-headers such as: “An increasing percentage of the Nation’s prisoners are black or Hispanic.”  In 1999, the BJS reported that the length of federal prison sentences had increased 40 percent. 

By the mid-1990s, lawmakers understood that dealers like Carl Smith were serving prison terms usually reserved for second-degree murder, or intentional murder demonstrating an extreme indifference to human life.  Yet Congress provided no relief, for decades.

In 2010, Congress raised the quantity necessary for future statutory minimum sentences in the Fair Sentencing Act; the law did not help defendants sentenced at the height of the drug war.  A few thousand people remained incarcerated under the old crack laws.  Their only hope was an historic reform amounting to an admission of Congressional guilt. The First Step Act was that law.  A bipartisan coalition heralded the First Step Act as the end of the draconian drug laws.  The Act gave sitting judges the authority to reopen the old crack cases and impose more appropriate sentences.... The intent of the law was clear, but some judges wavered.

There are two plausible ways to read the resentencing section — section 404 — of the First Step Act: as a small fix to the Fair Sentencing Act of 2010 or a broad mandate to rectify thousands of unjust sentences.  The broad reading is historically, legally and morally correct.  But hundreds of hearings in, the nation’s district courts remain divided on the law’s most basic tenets, like which defendants can be resentenced or what Section 404 empowers judges to do.

Some judges apply Section 404 narrowly.  A subset dismiss cases involving too little or too much crack without a review of the other facts.  Still others review all cases implicating a Fair Sentencing Act statute, but only to perform a new mathematical calculation.  They do not consider a defendant’s post-sentencing conduct or intervening changes in the law, even favorable state and federal supreme court rulings.  Their narrow interpretations of the law unnecessarily depress the length of sentence reductions.

Other judges construe Section 404 broadly.  They view the First Step Act as a gateway to relief.  Some find that they can revisit the sentences of small-time dealers or inmates serving hybrid sentences for interconnected drug and weapons crimes.  Some believe that they may consider a defendant’s good conduct, prison coursework and recent high court rulings.  Broad-view judges find that Congress empowered them to mitigate the damage of the old crack laws.  Their proof? The text of the law, including the word “impose” as a mandate to issue an independent sentence — and the testimony of a dozen or more senators, of both parties, characterizing the First Step Act as redress for the old drug laws.

Recently, the First Circuit adopted a broad view in Carl Smith’s case [opinion here]. That appellate opinion is reason for hope that the circuit courts will raze the remains of the old crack laws.  This summer, the appellate courts should adopt a broad reading of the First Step Act.  That reading should require sitting judges to issue meaningful sentence reductions, including ‘timed served’ in many cases.

And, it should hold sitting judges accountable for the continued incarceration of non-violent drug dealers who have served a decade or more.  Amidst global protests for freedom, liberation and justice for Black citizens, and a raging pandemic, the courts must fully enact the First Step Act as Congress intended.

I am pleased to see this new commentary calling out lower courts for not giving full effect to remedial aspects of the FIRST STEP Act.  But this analysis should not leave out the problematic role of the Justice Department.  I surmise that DOJ has consistently argued for narrow and limiting approaches to the application of Section 404.  Decades ago, DOJ could reasonably contended that its arguments for severe application of federal sentencing laws were consistent with congressional intent.  Now, DOJ arguments for severe application of federal sentencing laws often clearly fly in the face of congressional intent.

New BREATHE Act proposes, among lots and lots of reforms, eliminating federal mandatory minimums and life sentences

As reported in this new AP piece, headlined "Movement for Black Lives seeks sweeping legislative changes," a big new federal criminal justice reform bill includes some big new ideas for sentencing reform. Here are some of the details:

Proposed federal legislation that would radically transform the nation’s criminal justice system through such changes as eliminating agencies like the Drug Enforcement Administration and the use of surveillance technology is set to be unveiled Tuesday by the Movement for Black Lives.

Dubbed the BREATHE Act, the legislation is the culmination of a project led by the policy table of the Movement for Black Lives, a coalition of more than 150 organizations.  It comes at an unprecedented moment of national reckoning around police brutality and systemic racism that has spurred global protests and cries for change after several high-profile killings of Black Americans, including George Floyd....

The legislation was first shared with The Associated Press, and is scheduled to be revealed in a Tuesday press conference that is slated to include an appearance by singer John Legend.  The proposed changes are sweeping and likely to receive robust pushback from lawmakers who perceive the legislation as too radical.

University of Michigan professor and criminal justice expert Heather Ann Thompson acknowledged the uphill battle, but noted that that the legislation is being introduced at a highly opportune time.  “I think those programs that they’re suggesting eliminating only look radical if we really ignore the fact that there has been tremendous pressure to meaningfully reform this criminal justice system,” said Thompson, author of “Blood in the Water.”...

No members of Congress have yet said they plan to introduce the bill, but it has won early support among some of the more progressive lawmakers, including Ayanna Pressley and Rashida Tlaib, who also are due to participate in the news conference.

The bill is broken into four sections, the first of which specifically would divest federal resources from incarceration and policing.  It is largely aimed at federal reforms because Congress can more easily regulate federal institutions and policy, as opposed to state institutions or private prison facilities.  The other sections lay out a detailed plan to achieve an equitable future, calling for sweeping changes that would eliminate federal programs and agencies “used to finance and expand” the U.S. criminal-legal system.

The elimination would target agencies such as the Immigration and Customs Enforcement, which has come under fire in recent years for its aggressive deportation efforts, and lesser-known programs such as Department of Defense 1033, which allows local law enforcement agencies to obtain excess military equipment.  The act, which also seeks to reduce the Department of Defense budget, would institute changes to the policing, pretrial detention, sentencing and prosecution practices...

It would establish the Neighborhood Demilitarization Program, which would collect and destroy all equipment like military-grade armored vehicles and weapons in the hands of local, state, and federal law enforcement agencies by 2022.  Federal law enforcement also would be unable to use facial-recognition technology, which many communities across the nation already have banned, along with drones and forms of electronic surveillance such as ankle-monitoring.

The bill would end life sentences, abolish all mandatory minimum sentencing laws and create a “time bound plan” to close all federal prisons and immigration detention centers....

The bill would direct Congress to establish a Community Public Safety Office that would conduct research on non-punitive, public safety-focused interventions that would be funded through new grants, and programs like a “Free Them All” Matching Grant Program offering a 50% federal match for projected savings when states and communities close detention facilities, local jails, and state or youth prisons.

According to the document, it also would bring about numerous changes for parents and children, such as removing police, school resource officers and other armed security and metal detectors from schools.

I suspect that there is little chance that this entire piece of legislation advances in Congress anytime soon, but there may well be a chance that some pieces of this big bill could get incorporated into other proposals. Even if just a statement of aspirations, this new bill is noteworthy and could prove to be quite significant.

Some summer criminal justice highlights from Marijuana Law, Policy & Reform

It has been far too long since I thought to do a round-up of posts of note from my blogging over at Marijuana Law, Policy & Reform, though that is certainly not because there has been any shortage of interesting COVID-19 or social justice issues arising these days at the intersection of marijuana policy and criminal justice policy.   Rather than try to do a comprehensive review, I will be content to stoplight some favorites with an emphasis on criminal-justice-related stories in this abridged list of posts of note from recent months at MLP&R:

• Is marijuana reform really a "Superweapon Biden Refuses to Use"?

• Reviewing direct democracy marijuana/drug reform initiatives as we celebrate America's birthday

• "Struggling Through the Pandemic: Cannabis Social Equity During Covid-19"

• "Understanding Social Equity"

• Is it growing clearer that marijuana reform is criminal justice reform and racial justice imperative ?

• "Retroactive Legality: Marijuana Convictions and Restorative Justice in an Era of Criminal Justice Reform"

• Timely reminders that marijuana reform is criminal justice reform ... especially when Black Lives Matter

• Noticing how marijuana reform now intersects with religious leaders

• "What’s the best minimum legal age for cannabis?"

• Nevada Gov announces plan to secure pardons for "tens of thousands of Nevadans previously convicted for possession of small amounts of marijuana"

• Notable new research and commentary on marijuana reforms and traffic fatalities

• "Why Marijuana Legalization Funds The Police"

• New research on racial disparities in traffic stops and searches highlights how marijuana reform reduces searches (but not racial disparities)

• Is anyone closely tracking state or national marijuana arrest data during this coronavirus era?  

• "Weeding Out Injustice: Amnesty for Pot Offenders"

• Terrific coverage at CCRC on "Legalizing marijuana and expunging records across the country"

• "States with recreational marijuana laws view the legislation as a success"

• In a post-COVID economy, will job creation and tax revenue from marijuana reform become irresistible?

"Proposition 47’s Impact on Racial Disparity in Criminal Justice Outcomes"

The title of this post is the title of this notable new and timely report from the Public Policy Institute of California.  Here is its "Summary":

While the COVID-19 pandemic has forced changes to correctional systems and law enforcement’s interactions with the community, widespread protests focused on the deaths of African Americans in police custody have intensified concern about racial and ethnic disparities in our criminal justice system.  In recent years, California has implemented a number of significant reforms that were not motivated by racial disparities but might have narrowed them in a number of ways. In this report, we extend our previous arrest work to examine the impact of Proposition 47, which reclassified a number of drug and property offenses from felonies to misdemeanors, on racial disparities in arrest and jail booking rates and in the likelihood of an arrest resulting in a booking.

While significant inequities persist in California and elsewhere, our findings point to a reduction in pretrial detention and a narrowing of racial disparities in key statewide criminal justice outcomes.

• After Prop 47 passed in November 2014, the number of bookings quickly dropped by 10.4 percent.  As a result, California’s use of pretrial detention has declined.
• Prop 47 also led to notable decreases in racial/ethnic disparities in arrests and bookings.  The African American–white arrest rate gap narrowed by about 5.9 percent, while the African American–white booking rate gap shrank by about 8.2 percent.  Prop 47 has not meaningfully changed the disparities in arrest and booking rates between Latinos and whites, which are still only a small fraction of the African American–white gap.
• The narrowing of African American–white disparities has been driven by property and drug offenses.  The gap in arrests for these offenses dropped by about 24 percent and the bookings gap narrowed by almost 33 percent.  Even more striking, African American–white gaps in arrest and booking rates for drug felonies decreased by about 36 percent and 55 percent, respectively.
• The likelihood of an arrest leading to a jail booking declined the most for whites, but this is attributable to the relatively larger share of white arrests for drug offenses covered by Prop 47. When we account for arrest offense differences, the decreases in the likelihood of an arrest being booked are similar across race and ethnicity.

We also looked at the cumulative impact of reforms and prison population reduction measures in California since 2009 on racial disparities in incarceration.  We found that the sizable reduction in the overall incarceration rate produced by these efforts has led to a narrowing of racial disparities in the proportion institutionalized on any given day.  In particular, the African American–white incarceration gap dropped from about 4.5 percentage points to 2.8 percentage points, a decrease of about 36 percent.

In addition to meaningfully reducing racial disparities in key criminal justice outcomes, the reclassification of drug and property offenses led to significant decreases in arrests and bookings, and hence pretrial detention. These decreases have the potential to reduce and/or redirect the use of public resources.  However, more work is needed.  Given evidence that the reforms have led to some increases in property crime, it is important for policymakers and practitioners to identify effective programs and policies that can reduce recidivism and maintain public safety while also continuing to address racial disparities.

Spotlighting our unique times as feds seek to resume execution this month

The New York Times has this article detailing that the first planned executions in nearly two decades are coming at quite a time. The piece is fully headlined "Federal Executions to Resume Amid a Pandemic and Protests: The administration is pressing ahead with the first federal execution in 17 years as demonstrators seek changes to the criminal justice system and lawyers have trouble visiting death-row clients."  Here are excerpts (with one line emphasized for commentary):

Daniel Lewis Lee is scheduled to be executed in less than two weeks, but he has been unable to see his lawyers for three months because of the coronavirus pandemic.

Mr. Lee, sentenced to death for his involvement in the 1996 murder of a married couple and their 8-year-old daughter, has been limited to phone calls, which one of his lawyers, Ruth Friedman, said she feared would jeopardize her client’s confidentiality.  And amid a global pandemic that has put travel on hold, her team has been unable to discuss pressing issues with Mr. Lee, conduct investigations, or interview witnesses in person.  “I can’t do my job right. Nobody can,” Ms. Friedman said from her apartment 600 miles away, in Washington, D.C., where she is working to commute Mr. Lee’s sentence to life in prison.

If she is unsuccessful, Mr. Lee, 47, will be the first federal death row inmate to be executed in 17 years.  Last year, Attorney General William P. Barr announced that the Justice Department would resume executions of federal inmates sentenced to death.  Two weeks ago, Mr. Barr scheduled the first four executions for this summer, all of men convicted of murdering children, and to be carried out at the federal penitentiary in Terre Haute, Ind.  On Monday, the Supreme Court cleared the way for the federal executions to proceed, rejecting arguments against the use of a single drug to carry out the sentence by lethal injection.

As the pandemic worsened, many states, including Texas and Tennessee, postponed scheduled executions of prisoners sentenced under state law. Since the pandemic began, there has been only one execution at a state prison, in Bonne Terre, Mo. The state capital trial in Florida for Nikolas Cruz, the gunman who killed 17 at Marjory Stoneman Douglas High School in 2018, was delayed indefinitely. Courthouses closed or moved to remote operations to accommodate social distancing....

In announcing the schedule for this summer’s federal executions, Mr. Barr said the death penalty was the will of the American people as expressed through Congress and presidents of both parties, and that the four men scheduled to die “have received full and fair proceedings under our Constitution and laws.”

The summer’s scheduled executions mesh with President Trump’s increasing election year efforts to cast himself as a “law and order” leader even as his administration faces mounting criticism for its response to protests over systemic racism in the policing system and a deadly pandemic.

Mr. Lee, who is scheduled to be put to death on July 13, was a white supremacist who has since disavowed his ties to that movement. The Trump campaign has seized on the political ramifications of Mr. Lee’s planned execution, criticizing the president’s presumptive Democratic opponent, former Vice President Joseph R. Biden Jr., for reversing his earlier support for the death penalty “even for white supremacist murderers!”

Though Mr. Biden now opposes capital punishment, he played a central role as a senator in the passage of the 1994 crime bill that expanded the use of the federal death penalty.  Mr. Trump has repeatedly attacked Mr. Biden for his record on criminal justice issues.

Mr. Biden and Mr. Trump are far from the first presidential candidates to spar over the death penalty as a political tactic. In 1992, then-Gov. Bill Clinton denounced President George Bush for his inaction on crime.  To affirm his support for the death penalty, he flew home to Arkansas in the midst of campaigning to personally see to the execution of a man who had been convicted of murdering a police officer.

But today’s candidates are vying for the White House amid nationwide protests over racism in the criminal justice system. Black people make up 42 percent of those on death row, both among federal inmates and over all, compared to 13 percent of the general population.

Though the four inmates scheduled to be executed this summer are white, critics of the death penalty warned that resumption of federal executions would only exacerbate the policy’s discrimination against people of color. “It would be nice if they used those resources to address the widespread problem of police violence against Black people,” said Samuel Spital, director of litigation at the N.A.A.C.P. Legal Defense & Educational Fund. Mr. Spital also questioned why the Justice Department did not use those resources allocated to resume federal executions to protect prisons from the coronavirus.

Imposing the death penalty amid the pandemic holds risks for those carrying out the execution: Doing so may require dozens of individuals, including corrections officers, victims and journalists, to come in close contact. The Bureau of Prisons directed that face masks would be required for all individuals throughout the entire procedure, with violators asked to leave the premises. Social distancing will be practiced “to the extent practical,” but the bureau conceded that limited capacity of the media witness room might preclude their ability to maintain a six-foot distance between observers....

Several family members of Mr. Lee’s victims, his trial's lead prosecutor, and the trial judge have all publicly opposed Mr. Lee’s execution. His co-defendant, described as “the ringleader” by the judge, was given a life sentence without parole.

In a statement, Mr. Barr maintained that the decision to reinstate federal capital punishment was owed “to the victims of these horrific crimes, and to the families left behind.” But Monica Veillette, who lost her aunt and cousin to Mr. Lee’s crimes, does not believe that this execution is for her family. She has asthma, and both her grandmother and parents are older. If they travel to Indiana for the execution from Washington State and Arkansas, each of them could be put at risk of contracting the virus. “If they owe us anything, it’s to keep us safe now by not pushing this execution through while people are still scrambling to access disinfectant spray and proper masks,” she said. “Haven’t enough people died?”

I have emphasized the fact that all of the defendants selected for execution dates by AG Barr are white because I suspect they were chosen to be the first ones to be executed, at least in part, because of their race. If I am right in this suspicion, I think AG Barr acted unconstitutionally. I am not sure if these defendants are pursuing an equal protection claim on this ground, but I sure think they should.

"Rural Spaces, Communities of Color, and the 'Progressive' Prosecutor"

The title of this post is the title of this new paper authored by Maybell Romero available via SSRN.  Here is its abstract:

The concept of the “progressive prosecutor” has captured the attention of many newspapers, media outlets, district attorney candidates, legal scholars, and the public at large.  The success of candidates declaring themselves progressive prosecutors has been tracked with much excitement by those who have sincere interests in criminal justice reform and has been lauded in many reform-minded camps.

These progressive prosecutors, while located throughout the country, seem to have one geographic commonality — they generally hail from large cities or even urban metroplexes: These include Wesley Bell in St. Louis, Rachael Rollins in Boston, Larry Krasner in Philadelphia, and Kim Foxx in Chicago.  In the meantime, disproportionate contact between police and minorities has increased in the rural reaches of the country, with prosecutors seemingly growing less reform minded with rates of incarceration in rural jurisdiction increasing.

This paper joins others in casting suspicion upon the notion of progressive prosecution, questioning whether such an appellation should exist given the current nature of the job in the United States.  It also serves as a warning; that while such prosecutors have seemed to become more common in large cities, that practitioners and scholars should not forget that reforms that occur in large jurisdictions sometimes do not extend to those suffering injustices in small communities.

"Sentencing Disparities and the Dangerous Perpetuation of Racial Bias"

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

This Article addresses the role that racial disparities — specifically sentencing disparities — play in perpetuating the racial bias that increases the daily danger of living as a Black American in the United States.  As documented in the news and by often humorous internet memes, White people have called the police many times to report Black people who were simply living as any other American.  This trend highlights the manner in which the U.S. criminal justice system’s racial inequities feed into biased beliefs about Black criminality.  This Article argues that instead of tackling implicit bias as a means to fight sentencing and other criminal justice bias, we must actively correct and eliminate the disparities head-on.

"A Comparison of the Female and Male Racial Disparities in Imprisonment"

The title of this post is the title of this notable new paper now appearing on SSRN and authored by Junsoo Lee, Paul Pecorino and Anne-Charlotte Souto.  Here is its abstract:

We examine the behavior of the incarceration rate and the racial disparity in imprisonment for black women and compare this to the results for black men over the period 1978-2016.  At the beginning of our sample, the racial disparity is high and of similar magnitude for both groups.  Black women and black men both experience a large run-up in incarceration between 1978-1999, where this run-up can be entirely explained by the increase in overall incarceration in the United States during this period.  Black women and black men both experience a decrease in incarceration between 1999 and 2016, but the decline for women is much steeper.

The decline in incarceration for black women is entirely explained by a decline in the racial disparity, where for men, a decline in the disparity and a decline in the overall male incarceration rate are both important.  At the state level, there are frequent upturns in the racial disparity in the 1980s for both black women and black men, followed by frequent downturns in the 1990s.  The data provide no prima facie evidence that the 1994 Crime Bill exacerbated the racial disparity in imprisonment.  By the end of the sample, the racial disparity for females is 1.8, and the disparity for males is 5.2, where this disparity measures the per capita black imprisonment rate divided by the per capita white imprisonment rate for each group.

Progressive groups demand that Joe Biden "put forward a transformative and comprehensive policing and criminal justice platform"

As reported in this Hill piece, dozens of "liberal groups have signed on to a letter warning presumptive Democratic presidential nominee Joe Biden that he could lose the November election to President Trump if he doesn’t adopt more progressive policing policies." Here is more:

The letter, which is signed by leading national progressive groups, including the Working Families Party, Our Revolution and Black Voters Matter, urges Biden to adopt a 21-page policy proposal released by The Movement for Black Lives to promote reducing incarceration and scaling back police forces across the country.

The groups are also asking Biden to drop his recent proposal to add $300 million in funding for the Community Oriented Policing Services (COPS) program, which would hire and train additional police officers to patrol within the communities where they live.

“We make these demands first and foremost because we seek justice for George Floyd and Breonna Taylor — as well as all the other Black lives lost — and policies like these are what justice looks like in practice,” the letter says. “But we also make them with an eye toward the November election. … You cannot win the election without the enthusiastic support of Black voters, and how you act in this moment of crisis will play a big role in determining how Black voters — and all voters concerned with racial justice — respond to your candidacy. A ‘return to normalcy’ will not suffice,” they wrote.

The progressive groups were scathing in their assessment of Biden’s record on criminal justice issues. “In the course of your political career, you have designed and endorsed policies that have significantly exacerbated these problems,” the letter states. “As a Senator, you not only supported, but in many cases authored and championed laws that expanded mass incarceration, increased police powers, and exacerbated racial disparities in surveillance and sentencing. These laws … are a part of the history that has led us to this moment, and their ongoing fallout has contributed to the outpourings of grief and anger we are seeing today,” they wrote.

The full letter, which is datad June 11, is available at this link. 

A few related posts:

• An initial list of federal sentencing reforms to advance greater equity and justice for congressional consideration (from this month)
• A few interesting accounts of Joe Biden on criminal justice (from this month)
• Might the 2020 campaign bring back "law and order" as a political wedge issue? (from Jan 2020)
• Former Veep Joe Biden releases extended "Plan for Strengthening America’s Commitment to Justice" (from July 2019)

"Whitewashing the Jury Box: How California Perpetuates the Discriminatory Exclusion of Black and Latinx Jurors"

The title of this post is the title of this notable new (and massive) report by faculty and students at the Berkeley Law Death Penalty Clinic.  This release about the report provides background and a summary starting this way: "An eye-opening report from Berkeley Law’s Death Penalty Clinic finds that racial discrimination is a consistent aspect of jury selection in California. The exhaustive study investigates the history, legacy, and ongoing practice of excluding people of color—especially African Americans—from state juries through prosecutors’ peremptory challenges."  Here is part of the report's executive summary:

Racial discrimination is an ever-present feature of jury selection in California.  This report investigates the history, legacy, and continuing practice of excluding people of color, especially African Americans, from California juries through the exercise of peremptory challenges. Unlike challenges for cause, each party in a trial has the right to excuse a specific number of jurors without stating a reason and without the court’s approval.  In California, peremptory challenges are defined by statute.

Historically, the main vice of peremptory challenges was that prosecutors wielded them with impunity to remove African Americans from jury service.  These strikes were part and parcel of the systematic exclusion of Blacks from civil society.  We found that prosecutors continue to exercise peremptory challenges to remove African Americans and Latinx people from California juries for reasons that are explicitly or implicitly related to racial stereotypes....

In his concurring opinion in Batson, Justice Thurgood Marshall warned that Batson’s three-step procedure would fail to end racially discriminatory peremptory strikes. He anticipated that prosecutors would easily be able to produce “race-neutral” reasons at Batson’s second step, and that judges would be ill-equipped to second-guess those reasons.  Further, Justice Marshall doubted Batson’s efficacy because the procedure did nothing to curb strikes motivated by unconscious racism — known more often today as implicit bias.

Justice Marshall was prescient: 34 years after Batson was decided, prosecutors in California still disproportionately exercise peremptory challenges to exclude African Americans and Latinx people from juries.

The Berkeley Law Death Penalty Clinic explored the shortcomings of the Batson procedure.  Our report investigates how the California Supreme Court went from a judiciary that championed the eradication of race-based strikes to a court that resists the United States Supreme Court’s limited efforts to enforce Batson.  We conclude that Batson is a woefully inadequate tool to end racial discrimination in jury selection.

"America’s Criminal Justice System Is Rotten to the Core"

The sharp title of this post is the sharp title of this new commentary authored by Clark Neily at Cato.  Here is how it gets started:

Before you can fairly assess the legitimacy of the ongoing protests or the quality of the government’s response, you must understand the relevant facts.  And the most relevant fact is that America’s criminal justice system is rotten to its core.  Though that certainly does not justify the violence and wanton destruction of property perpetrated by far too many protesters, it does provide useful context for comprehending the intensity of their anger and the fecklessness of the government’s response.  If America is burning, it is fair to say that America’s criminal justice system — which is itself a raging dumpster fire of injustice — lit the fuse.

I feel moved to write these words because it appears from some of the commentary I’ve been reading — including even from libertarian circles — that many people who consider themselves to be generally skeptical of government and supportive of individual rights have no idea just how fundamentally broken our criminal justice system is and how wildly antithetical it has become to our core constitutional values.

Within days or weeks, most protesters will renounce the use of lawless violence as a tool of politics; but the state will not.  That’s the key takeaway and the thing you really need to understand about this moment in time.

As I will explain below, I see three fundamental pathologies in America’s criminal justice system that completely undermine its moral and political legitimacy and render it a menace to the very concept of constitutionally limited government.  Those three pathologies are: (1) unconstitutional overcriminalization; (2) point‐​and‐​convict adjudication; and (3) near‐​zero accountability for police and prosecutors.

An initial list of federal sentencing reforms to advance greater equity and justice for congressional consideration

According to this recent Hill article, headlined "Pelosi: Democrats to unveil sweeping criminal justice proposal Monday," a federal criminal justice bill is in the works that may go beyond police reforms.  Here are the basics:

Democrats on Monday will introduce wide-ranging legislation designed to combat racial inequities in the criminal justice system, Speaker Nancy Pelosi (D-Calif.) announced Thursday.  The much awaited package, currently being crafted by members of the Congressional Black Caucus (CBC), will feature provisions designed to eliminate racial profiling, rein in the excessive use of police force and repeal the so-called qualified immunity doctrine for law enforcers, which protects individual officers from lawsuits over actions they perform while on duty.

"We will not relent until that is secured — that justice is secured," Pelosi told reporters in the Capitol.  Yet the package will go far beyond that, Pelosi suggested.... Aside from the criminal justice elements of the Democrats' legislation, Pelosi said the package would also include provisions designed to raise the status of African Americans outside of the criminal justice system as well. "It is about other injustices, too. It's about health disparities, it's about environmental injustice, it's about economic injustice, it's about educational injustice," Pelosi said. 

This Politico piece suggests the developing bill is primarily focused on police reforms.  But if Congress has an interest, as I think it should, in broader criminal justice reforms to advance greater equity and justice, I have many suggestions.  Let's get started with some basic federal sentencing reforms:

1. Equalize crack and powder cocaine sentencing (finally!).  Based on data showing huge unfair disparities, the US Sentencing Commission in 1995 (a full quarter century ago!) sent to Congress proposed guidelines changes to fix the 100:1 crack/powder cocaine disparity by adopting a 1:1 quantity ratio at the powder cocaine level.  But Congress passed, and President Bill Clinton signed, legislation rejecting the USSC’s proposed guideline changes (see basics here and here), thereby ensuring decades of disproportionately severe crack sentences and extreme racial inequities in cocaine offense punishments.

Barack Obama gave a 2007 campaign speech assailing the crack/powder disparity, and in 2009 the Obama Justice Department advocated for "Congress to completely eliminate the crack/powder disparity."  Sadly, despite strong DOJ advocacy for a 1:1 ratio in April 2009, it still took Congress more than a year to enact any reform to the 100:1 crack/powder cocaine disparity, and then it only could muster a partial reduction in crack sentences rather than the parity advocated by the USSC in 1995 and by DOJ in 2009.  Specifically, the Fair Sentencing Act enshrined a bew 18:1 crack/powder quantity disparity ratio into federal drug sentencing statutes and guidelines, and even this modest reform did not become fully retroactive until eight years later with the FIRST STEP Act.

As the USSC said in 1995 and as DOJ recognized in 2009, crack cocaine and powder cocaine are functionally the same drug save for the fact that Blacks are far more likely to be prosecuted federally for the former.  The crack/powder cocaine sentencing disparity has long been the most tangible and consequential example of structural sentencing racism, and the Minnesota Supreme Court decades ago found a lesser disparity to be unconstitutional under its state constitution.  This ugly stain still impacting thousands of Black federal defendants needs to be wiped out once and for all.

2. Repeal federal mandatory minimums. Even before its important work highlighting racial biases in the application of federal cocaine penalties, the USSC began noting the racial inequities in the application of federal mandatory minimum statutes.  In its 1991 report, the USSC noted early data showing "disparate application of mandatory minimum sentences [which] appears to be related to the race of the defendant, where whites are more likely than non-whites to be sentenced below the applicable mandatory minimum."  In its 2011 report, the USSC again documented with copious data the various ways that the effects of severe mandatory minimum sentencing provisions "fall on Black offenders to a greater degree than on offenders in other racial groups."

One need not rely on USSC data to see clear evidence of racial disparities in the application of federal mandatory minimum.  M. Marit Rehavi and Sonja B. Starr found that federal prosecutors are almost twice as likely to file charges carrying mandatory minimum sentences against Black defendants.  Similarly, Crystal Yang found that "Black offenders are far more likely to be charged with mandatory minimums than similar white offenders, and after Booker, black defendants are significantly more likely to face mandatory minimums that exceed their Guidelines minimum compared to white defendants."

Critically, mandatory minimums have all sorts of flaws, both in theory and in practice, that justify their repeal on a number of bases beyond advancing greater racial equity.  But, as is too often the case throughout criminal justice systems, a bad law for everyone often gets applied in a way that is especially inequitable and unjust for people of color.  All federal mandatory minimums ought to be repealed.

3. Create a federal expungement statute. Having a criminal record severely limits access to employment, education, housing, civic engagement, and public assistance.  As highlighted by a recent US Commission on Civil Rights report on collateral consequences, "People of color are more likely to be arrested, convicted, and sentenced more harshly than are white people, which amplifies the impact of collateral consequences on this population."

An encouraging recent study by Sonja B. Starr and J.J. Prescott involving expungements in Michigan over the course of decades found that expungement recipients had extremely low subsequent crime rates and saw a sharp upturn in wages and employment levels.  Sounds like a win-win, and ever more states are each year expanding and enhancing mechanisms for record relief.  But there is currently no general federal expungement or record sealing statute, and federal courts have no inherent authority to expunge records.  Congress should again follow the wise lead of the states by creating a robust expungement statute ASAP.

Critically, these three suggestions are really just low-hanging fruit for criminal justice reforms in the sentencing space that would obviously and easily advance greater equity and justice for all.  There are plenty of other important structural changes I would also like to see in the name of racial justice ranging from eliminating all felon disenfranchisement to decriminalizing or legalizing marijuana and lots more in between.  Indeed, any kind of wise criminal justice reform is likely to serve as a kind of racial justice reform given the consistently biased operation of our justice systems.  But for now, I will be content to advocate for these three reforms and encourage others to use the comments to indicate what they consider the most urgent forms of reform in this arena.

Another week with lots of federal sentence reductions from judges using § 3582(c)(1)(A) ... dare I wonder about the racial breakdown?

I flagged in this Friday post five grants of sentence reductions under § 3582(c)(1)(A) on same day Bernie Madoff was denied a reduction, and this past week was filled with many, many more judicial grants of sentence reductions using § 3582(c)(1)(A).  Readers may recall, this post from mid May with more than two dozen grants in one week showing up on Westalw, and the first week on June shows comparable activity (though I have included below a few from late May that have only recently appeared on Westlaw):

United States v. Regas, No. 3:91-cr-00057-MMD-NA-1, 2020 WL 2926457 (D Nev. June 3, 2020)

United States v. Gray, No. RDB-16-0364, 2020 WL 2932838 (D Md. June 3, 2020)

United States v. Rich, No. 17-cr-094-LM, 2020 WL 2949365 (D N.H. June 3, 2020)

United States v. McClellan, No. 1:92 CR 268, 2020 WL 2933588 (ND Oh. June 3, 2020)

United States v. Hodges, No. 04 CR 993-3, 2020 WL 2935101 (ND Ill. June 3, 2020)

 

United States v. Millage, No. 3:13-cr-234-SI, 2020 WL 2857165 (D Ore. June 2, 2020)

United States v. Hilow, No. 15-cr-170-JD, 2020 WL 2851086 (D N.H. June 2, 2020)

United States v. O'Neil, No. 3:11-CR-00017, 2020 WL 2892236 (SD Iowa June 2, 2020)

United States v. Williams-Bethea, No. 18-cr-78 (AJN), 2020 WL 2848098 (SDNY June 2, 2020)

United States v. Chapman, No. 09-CR-0741, 2020 WL 2850984 (ND Ill. June 2, 2020)

 

United States v. Prasad, No. 19-71, 2020 WL 2850147 (ED La. June 2, 2020)

Snell v. United States, No. 16-20222-6, 2020 WL 2850038 (ED Mich. June 2, 2020)

United States v. Kelley, No. 16-cr-00038-SI-1, 2020 WL 2850280 (ND Cal. June 2, 2020)

United States v. Anderson, No. 16-CR-824-1 (JMF), 2020 WL 2849483 (SDNY June 2, 2020)

United States v. Ozols, No. 16-CR-692-7 (JMF), 2020 WL 2849893 (SDNY June 2, 2020)

 

United States v. Torres, No. 87-Cr-593 (SHS), 2020 WL 2815003 (SDNY June 2, 2020) (two defendants both with LWOP sentences reduced)

United States v. Dickerson, No. 1:10CR17 HEA, 2020 WL 2841523 (ED Mo. June 1, 2020)

United States v. Smith, No. CR07-3038-LTS, 2020 WL 2844222 (SD Iowa June 1, 2020)

United States v. Kamaka, No. 18-00085 SOM, 2020 WL 2820139 (D Hawaii June 1, 2020)

 

United States v. Van Cleave, No. CR03-247-RSL, 2020 WL 2800769 (WD Wash. May 29, 2020)

United States v. Castillo, No. H-08-146-01, 2020 WL 2820401 (SD Tex. May 29, 2020)

United States v. Baclaan, No. 16-00468 HG-01, 2020 WL 2820199 (D Hawaii May 29, 2020)

United States v. Pena, No. 16-10236-MLW, 2020 WL 2798259 (D Mass. May 29, 2020)

United States v. Bass, No. 1:10-CR-166 (LEK), 2020 WL 2831851 (NDNY May 27, 2020)

As I have mentioned before, late week rulings often do not appear on Westlaw right away, so there likely are additional early June grants that will appear on Westlaw later this week.  And, of course, these Westlaw listings do not represent all sentence reductions being granted by federal courts these days; data in the Marshall Project article flagged here leads me to think Westlaw picks up at most half of all federal sentence reduction grants.

As the title of post suggests, after a week of righteous protests and discussions focused on the importance of racial equity and justice, I could not help but wonder as I assembled this list whether people of color are equally benefiting from judicial authority to reduced sentences using § 3582(c)(1)(A) after the FIRST STEP Act.  According to the most recent US Sentencing Commission data, roughly 34% of federal prisoners are Black, 34% are Latinx, 28% are White, and 4% are "other" races.  For various reasons, I suspect that the population of older federal prisoners, who seem to be those most likely to benefit from COVID-influenced reduction grants, is more Whte than the general population.  Still, because it seems likely that a sizable number of non-White federal prisoners are making viable motions for sentence reductions, I cannot help but wonder if a sizable number of non-White federal prisoners are being granted  reduced sentences using § 3582(c)(1)(A).   

Prior recent related posts since lockdowns:

• Notable recent (pre-COVID) grants of sentence reductions from coast to coast using 3582(c)(1)(A) ... as FAMM urges thousand more filings in response to coronavirus
• Documenting early federal court COVID jurisprudence in response to various release requests from federal defendants and inmates 
• A few (too few) recent COVID-influenced grants of sentence reductions using 3582(c)(1)(A)
• Pleased to see growing number of COVID-influenced grants of sentence reductions using 3582(c)(1)(A)
• A few more COVID-influenced grants of sentence reductions using 3582(c)(1)(A)
• Still more COVID-influenced grants of sentence reductions using 3582(c)(1)(A), with waivers of exhaustion/waiting period 
• Additional COVID-influenced grants of federal sentence reductions using 3582(c)(1)(A) 
• Another round of recent COVID-influenced grants of federal sentence reductions using 3582(c)(1)(A)
• A dozen new grants of federal sentence reductions using § 3582(c)(1)(A), including another based on stacking/disparity/trial penalty concerns
• Still more of the ever-growing number of COVID-influenced federal sentence reductions using 3582(c)(1)(A)
• Another robust week for COVID-influenced federal sentence reductions using 3582(c)(1)(A)
• With lots more new grants, time for another timely review of the latest COVID-influenced federal sentence reductions using § 3582(c)(1)(A) 
• A big list for a whole week's worth of COVID-influenced federal sentence reductions using § 3582(c)(1)(A) 
• Despite a short work week, still another long list of new COVID-influenced federal sentence reductions using § 3582(c)(1)(A) 
• Bernie Madoff denied federal sentence reduction, but many others receive relief under § 3582(c)(1)(A) on same day

NC Supreme Court limits reach of repeal of state's Racial Justice Act in capital cases

Over a decade ago, North Carolina enacted a Racial Justice Act that allowed a capital defendant to seek relief on a claim that race was a significant factor in the decision to seek or impose the death penalty in his case. After nearly every person on North Carolina's death row made a claim under this statute, it was repealed by the legislature. Today the North Carolina Supreme Court in North Carolina v. Ramseur, No. 388A10 (N.C. June 5, 2020) (available here), limits the impact of this repeal. The majority opinion in this 6-1 ruling starts this way:

Defendant, Andrew Darrin Ramseur, was convicted of two counts of firstdegree murder and sentenced to death in 2010.  After his trial, defendant filed a motion seeking relief pursuant to the newly enacted North Carolina Racial Justice Act on the basis that race was a significant factor in the decision to seek or impose the death penalty in his case.  Before the trial court ruled on defendant’s motion, the General Assembly amended the Racial Justice Act in 2012 and then, in 2013, repealed the Racial Justice Act in its entirety. The trial court determined that this repeal rendered defendant’s pending motion void and therefore dismissed defendant’s Racial Justice Act claims.  Here we are asked to decide the constitutionality of the retroactive application of the repeal of the Racial Justice Act. For the reasons stated herein, we hold that applying the repeal retroactively violates the constitutional prohibition on ex post facto laws, and therefore we reverse the trial court.

The dissent by Justice Newby starts this way:

The narrow issue presented by this case is whether, as applied to defendant, legislation repealing the Racial Justice Act of 2009 (the RJA) constitutes an ex post facto law. The majority incorrectly answers this question in the affirmative.  The repeal plainly does not qualify as an ex post facto law because it left defendant in precisely the same legal situation as the one he occupied on 16 December 2007, when, according to a jury, he murdered Jennifer Lee Vincek and Jeffrey Robert Peck.  The repeal did not subject defendant to more serious or additional charges for past conduct, nor did it increase the punishment in effect on 16 December 2007.  When properly viewed, the General Assembly intended the RJA to provide a procedural mechanism by which a defendant could collaterally attack a capital sentence.  The General Assembly did not intend to make a substantive change to the death penalty sentencing law. As such, the General Assembly had the constitutional authority subsequently to amend it and repeal it.

Timely reminders that racial disparities may persist and grow even as the carceral state begins to shrink

The Marshall Project has this notable new piece about arrest rates during the COVID era under the full headline "Police Arrested Fewer People During Coronavirus Shutdowns — Even Fewer Were White: Racial disparities grew in five cities as arrests fell, according to our new data analysis."  Here are excerpts:

As protesters clash with police across the country, they are venting not only their rage about the death of George Floyd at the hands of Minneapolis police, but more broadly their frustration with decades of racial inequality in the American criminal justice system.

These inequalities persisted during the coronavirus outbreak, a new Marshall Project analysis of arrest data found. Even as crime rates fell while much of the country was ordered to shelter in place, arrest data from five U.S. cities suggests racial disparities worsened in March and April.  Across these cities, arrests of white people dropped 17 percent more than arrests of black people and 21 percent more than Hispanic people.

In March, the New York City Police Department made about 13,000 arrests, a 30-percent drop from the same month a year before. While most people in the city were confined to their homes, the changes in arrest practices did not affect residents of all races equally.  White people experienced the largest decreases in arrests, whereas arrests of black and Hispanic people dropped at a much slower rate.

New York is not an outlier. The Marshall Project’s analysis found that arrests in Los Angeles, Baltimore, Pittsburgh and Tucson, Arizona, reflected similar patterns.  As the total number of arrests plummeted through March and April, they didn't drop equally across the board. Arrests of white people decreased far more than the arrests of black and Hispanic people. Though they were much fewer to begin with, arrests of Asians, Native Americans and people of other backgrounds declined faster than arrests of white people.

These disparities in arrests took place during the same time period when some police departments came under fire for how they enforce social distancing orders. In New York City, more than 80 percent of people arrested for violating those orders were black. In major cities across Ohio, black residents were more than four times as likely to be charged with violating stay-at-home orders than their white peers. 

In Los Angeles, New York and Tucson, three cities that break down arrests by the severity of the alleged offense, The Marshall Project found that with each racial and ethnic group, misdemeanor arrests plummeted during the early weeks of the pandemic, while felony arrests, for the most severe crimes, declined slightly.  For example, from February to March, the Los Angeles Police Department made 1,000 fewer arrests for misdemeanor charges, such as driving under the influence or traffic violations. Meanwhile, arrests for felony charges, like aggravated assault and rape, dropped by 100.

These COVID-era data remind me of the data we often now see on marijuana-related arrests in the wake of legalization or decriminalization, where the total number of arrests decline (often significantly) but with racial disparities persisting or even growing.  Here are just a few recent studies on this topic via my coverage at my Marijuana Law, Policy & Reform blog:

• New research on racial disparities in traffic stops and searches highlights how marijuana reform reduces searches (but not racial disparities)
• "The heterogeneous effect of marijuana decriminalization policy on arrest rates in Philadelphia, Pennsylvania, 2009–2018"
• Persistently discouraging news about persistent racial disparities in marijuana enforcement
• Interesting data on marijuana arrests in DC after 2014 legalization initiative

Also worth recalling in this context is the notable reality that a number of US states with relatively smaller prison populations often have the most racially disparate prison populations.  This 2016 Sentencing Project report on the topic detailed that the states with the largest disparities in their prison population between whites and blacks were Iowa, Minnesota, New Jersey, Vermont, and Wisconsin.  Notably, all of these states have well below the national average in per-capita prison population.

These numbers do not surprise me because I often notice, in both policies and practices, how disparities and discrimination can find express in the exercise of leniency or mercy.  I see this especially in death penalty administration, when so many different actors in the system (prosecutors, judges, jurors) have formal and/or informal authority to prevent a murderer from being subject to the death penalty.  Disparities can and will result merely not from legal actors being distinctly punitive toward certain defendants, but also from these actors being distinctly willing to act leniently or mercifully toward only certain other defendants.  Other sentencing systems, where prosecutorial charging and bargaining discretion in turn shape judicial sentencing discretion, also surely reflect differential expressions of leniency as well as differential expressions of punitiveness.

I bring all this up not too create cynicism or fatalism about what legal and social change might achieve, but rather to highlight how much work there is to do even as we make progress in reducing the scope and impact of mass criminalization, mass punishment and mass incarceration.  In recent years, I have grown ever more hopeful about the potential, politically and practically, to shrink the carceral state in America.  But the events of this past week provide a critical reminder of our need to keep our eyes on all the prizes that we are aspiring to achieving in this critically important work.

Weekend round-up of array of prison stories and commentary in incarceration nation

As I continue to follow closely the news and commentary surrounding prison and prisoners during this COVID-19 era, I am reminded again and again how jails and prisons (and all the people therein) are inextricably woven into the broader fabric of all of our communities.  Here is a Saturday round-up of a few recent headlines that in various ways reflect this reality:

• "California prison staff posted ‘racist’ and ‘extremely hurtful’ comments about George Floyd’s killing, CDCR secretary says"

• "Texas jail says guards didn’t notice inmate giving birth"

• "Is COVID-19 Falling Harder on Black Prisoners? Officials Won’t Tell Us."

• "Prisoners May Hold the Key to Releasing Us from Coronavirus Lockdown"

• "Pandemic-Era Prison Releases a ‘Tipping Point’ for Reformers"

• "Coronavirus shows us the danger and inanity of our prison state"

• "In Prison, Even Social Distancing Rules Get Weaponized"

• "National law enforcement leaders urge the release, transfer of inmates at federal prison in Ohio"

"Not Letting Felons Vote Damages Democracy for All Citizens"

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

On Sunday, a Florida federal district court struck down a state law requiring people with serious criminal convictions to pay court fines and fees before they can register to vote.  The court found that such a requirement would amount to a poll tax and discriminate against those who cannot afford to pay.  That decision is the latest salvo in two battles: Florida’s recent effort to restore voting rights to felons, and America’s long history of using disenfranchisement as a collateral consequence of criminal punishment.

The latter has a shameful history.  This nation’s longstanding hostility toward criminals and convicts bubbles over in an 1871 Virginia court decision that described prisoners as “slaves of the state.”  As a consequence of his crime, a prisoner has “not only forfeited his liberty, but all his personal rights except those which the law in its humanity accords to him.”

In 2018 the Florida electorate voted to repudiate that history when 65% of the voters supported a proposal to amend the state constitution so that convicted felons who complete “all terms of sentence” could vote. Several months later, the heavily Republican state legislature tried to limit the impact of that amendment. It passed a bill saying that “all terms of sentence” included the discharge of financial obligations such as fines, fees and restitution.  Sunday’s court decision enjoined the application of that law....

Because of the current racial composition of America’s prisons and jails, felony disenfranchisement has had a much greater impact on the democratic participation of citizens of color than that of white citizens.  Yet, in 2002, a different federal court in Florida dismissed a lawsuit claiming that felony disenfranchisement was racially discriminatory....

Florida’s long history of felony disenfranchisement is hardly unique.  The practice of removing voting rights from people convicted of crimes can be traced back to the colonial practice of treating criminals as civilly dead.  And soon after the American Revolution, felony disenfranchisement was written into the law of many of the newly formed states.

Debates about slavery and the aftermath of the Civil War gave added impetus to this practice.  States passed laws in the late 1860s to disenfranchise felons and, in so doing, test the meaning of the Fifteenth Amendment’s extension of voting rights. In the post-war South, white southern Democrats used felony disenfranchisement to deny those rights, invoking historical similarities between the legal statuses of slaves and convicts as justification.

Today, according to a report by the Sentencing Project, nearly 40% of the 6.1 million people disenfranchised by a felony conviction are black....  Currently 48 states and the District of Columbia do not allow felons to vote while they are serving time in prison.  Thirty-one states prevent people on parole or probation from casting ballots.  Four states permanently bar ex-inmates from voting and do not allow restoration of that right, while eight others disenfranchise only people who have committed particularly egregious kinds of crimes.

Sunday’s court decision striking down new barriers erected to limit the number of Florida’s previously disenfranchised population from voting is admirable, but much more needs to be done to ensure that those who commit serious crimes can exercise one of the essential rights of citizenship — the right to vote....  Moreover, if this nation wants prisoners, when they leave  confinement, to return to be productive, well-integrated members of society, it should make sure they have a stake in that society.  Voting gives them that stake.  Ending felony disenfranchisement also would help break the legacy of slavery which continues to haunt imprisonment in the U.S.

The entire country should follow the examples of Maine and Vermont, the only two states that allow people to vote from behind bars and after they are released.  They have done so for more than two hundred years. Canada, Denmark, Spain, and 13 other democracies also permit felons to exercise the franchise even when they are serving time.  They recognize that voting is a right of adult citizens, not a privilege accorded only to some.  Last year legislators in Massachusetts, Hawaii, New Mexico, and Virginia introduced bills to allow all prisoners to vote, a position endorsed by Senator Bernie Sanders during his presidential campaign.

Dissenting in the Richardson case, Justice Thurgood Marshall wisely noted that there is no reason to believe that “felons have any less interest in the democratic process than any other citizen. Like everyone else, their daily lives are deeply affected and changed by the decisions of government.”  And, Justice Marshall was right to remind all of us that the right to vote “is the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.”

Full issue Columbia Human Rights Law Review devoted to capital sentencing practices and problems

A helpful reader alerted me to the latest issue of the Columbia Human Rights Law Review, which has these nine terrific-looking article about the ugly realities of capital sentencing past and present.  Here are the titles and links:

Symposium: Furman’s Legacy: New Challenges to the Overbreadth of Capital Punishment by Jeffrey Fagan

Local History, Practice, and Statistics: A Study on the Influence of Race on the Administration of Capital Punishment in Hamilton County, Ohio (January 1992-August 2017) by Catherine M. Gross, Barbara O'Brien, and Julie C. Roberts

Hurricane Florida: The Hot and Cold Fronts of America’s Most Active Death Row by Hannah L. Gorman and Margot Ravenscroft

Valuing Black Lives: A Case for Ending the Death Penalty by Alexis Hoag

Double Duty: The Amplified Role of Special Circumstances in California’s Capital Punishment System by Mona Lynch

A Systematic Lottery: The Texas Death Penalty, 1976 to 2016 by Scott Phillips and Trent Steidley

Race, Ethnicity, and the Death Penalty in San Diego County: The Predictable Consequences of Excessive Discretion by Steven F. Shatz, Glenn L. Pierce, and Michael L. Radelet

Hidalgo v. Arizona and Non-Narrowing Challenges by Sam Kamin and Justin Marceau

Restoring Empirical Evidence to the Pursuit of Evenhanded Capital Sentencing by Joseph J. Perkovich

"The Paradox of Recidivism"

The title of this post is the title of this interesting-looking new article authored by Christopher Lewis and just posted to SSRN.  Here is its abstract:

The idea that we should respond more severely to repeated wrongdoing than we do to first-time misconduct is one of our most deeply held moral principles, and one of the most deeply entrenched principles in the criminal law and sentencing policy. Prior convictions trigger, on average, a six-fold increase in the length of punishment in U.S. states that use sentencing guidelines.  And three-strikes, habitual offender, and career criminal laws mandate extremely harsh penalties for repeat offending.  Most of the people we lock up in the U.S. — especially those who are Black or Latino, and poor — have at least one prior conviction. The “recidivist sentencing premium” is thus one of the main determinants of race- and class-based disparity in our prisons, and of the overall size of our incarcerated population.

This article shows, counterintuitively, that given the current law and policy of collateral consequences, and the social conditions they engender, judges and sentencing commissions have moral reason to do exactly the opposite of what they currently do: impose a recidivist sentencing discount, rather than a premium. Prior convictions should be treated as a presumptive mitigating factor, rather than an aggravating one.  This thesis goes against the grain of criminal law and policy dating back as far as we know it, virtually the entire scholarly literature, and millenia of social tradition.  But this article shows that it follows from a number of quite ordinary normative and empirical premises. The conclusion might be politically unpalatable, but it is morally unavoidable.

"Deep Disadvantage, Blameworthiness, and Sentencing"

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

Arguments in favor of a “social adversity” or “rotten social background” defense are substantially stronger than those against.  People disagree in principle whether an affirmative defense of deep disadvantage, paralleling the insanity defense, should be recognized and whether judges should routinely mitigate the severity of sentences imposed on deeply disadvantaged offenders.  The defense should be recognized. It would be unlikely often to result in acquittals but it would strengthen many defendants’ positions in plea negotiations. Mitigation of punishment should be routine.  Few credible arguments can be made that a deeply disadvantaged background is not a material characteristic that should be taken into account in sentencing.  Unfortunately, informal mitigation of punishments is not enough. The severity and rigidity of American sentencing laws often deny judges the necessary authority.  The moral challenges presented by deeply disadvantaged offenders cannot adequately be addressed without creation of a new affirmative defense.

Effective overview of highlights (or lowlights) of latest BJS data on prisons and jail at end of 2018

I noted in this post the release of new reports and data from Bureau of Justice Statistics detailing US incarceration levels as of the end of 2018.  The folks at the Prison Policy Initiative now have this new posting on the BJS data titled "Stagnant populations and changing demographics: what the new BJS reports tell us about correctional populations."  I recommend the full piece, and the subtitle highlights its themes: "New BJS reports show that jail and prison populations remain stubbornly high despite decreasing crime rates, and point to the shifting demographics of correctional populations."  Here are excerpts:

The COVID-19 crisis is illustrating yet another danger of our overreliance on incarceration, as jails and prisons are rapidly becoming coronavirus hotspots.  As correctional facilities around the country grapple with the crisis, two new Bureau of Justice Statistics (BJS) reports, Jail Inmates in 2018 and Prisoners in 2018, provide crucial details about our nation’s correctional populations. The reports highlight the slow pace of decarceration over the past decade, the persistence of pretrial detention despite calls for reform, and the changing demographics of prisons and especially of jails....

Both of the new BJS reports boast of declining correctional populations, but a closer look at the data reveals the pace of decarceration is still far too slow.  Prisoners in 2018 reports that prison populations decreased 9% between 2008 and 2018, meaning prison populations, on average, declined by less than 1% each year.  As the nation with the highest incarceration rate in the world, such small declines represent a national failure.

The rate of decarceration in jails is similarly slow, and jail populations have even ticked up in recent years.  Although Jail Inmates in 2018 and its press release boast that the “jail incarceration rate decreased 12% from 2008 to 2018,” most of that drop happened over five years ago; the jail population barely budged between 2015 and 2018.  There were actually over 18,000 more people in jail on an average day in 2018 than in 2015 -- despite the fact that the overall crime rate declined 11% over the same period.

Even worse, the growth of jail populations over those years can largely be attributed to an increase in the number of people held pretrial.  The vast majority of people in jails have not been convicted and are simply stuck in jail waiting for their day in court, and their number has increased by 6% since 2015, while the number of people in jail who were convicted declined by 9%.  That means pretrial detention has continued to drive all of the net jail growth in recent years, despite the fact that counties around the country are reforming their bail systems to reduce pretrial incarceration. Clearly, these measures have not gone far enough.

Another key takeaway from the recent reports: There have been striking demographic shifts in jail populations and, to a lesser extent, in prison populations.  The number of women incarcerated in jails has increased, and while the women’s prison population is slowly falling, the decarceration of men in prisons continues to outpace that of women. Racial disparities remain persistent, but have actually narrowed in both prisons and jails.  Finally, we see that rural jails have grown while urban jail populations have taken more significant steps toward decarceration.

"A Tale of Two Countries: Racially Targeted Arrests in the Era of Marijuana Reform"

The title of this post is the title of this big new ACLU report spotlighting the persistent problem with racially skewed marijuana enforcement patterns.  This press release reviews the basics of a 100+ page report that I am looking forward to reviewing in depth:

The American Civil Liberties Union today released a new report showing that Black people are 3.64 times more likely than white people to be arrested for marijuana possession despite comparable marijuana usage rates. Additionally, although the total number of people arrested for marijuana possession has decreased in the past decade, law enforcement still made 6.1 million such arrests over that period, and the racial disparities in arrest rates remain in every state.

The report, A Tale of Two Countries: Racially Targeted Arrests in the Era of Marijuana Reform, details marijuana possession arrests from 2010 to 2018, and updates our unprecedented national report published in 2013, The War on Marijuana in Black and White. The disturbing findings of this new research show that despite several states having reformed marijuana policy over the last decade, far too much has remained unchanged when it comes to racial disparities in arrests.

Key findings include:

• Law enforcement made more than 6.1 million marijuana-related arrests form 2010-2018. In 2018 alone, there were almost 700,000 marijuana arrests, which accounted for more than 43 percent of all drug arrests. In 2018, law enforcement made more marijuana arrests than for all violent crimes combined.
• Despite legalization in a number of states, it is not clear that marijuana arrests are trending downward nationally. Arrest rates have actually risen in the past few years, with almost 100,000 more arrests in 2018 than 2015.
• In every state, and in over 96 percent of the counties examined, Black people were much more likely to be arrested than white people for marijuana possession. Overall, these disparities have not improved. On average, a Black person is 3.64 times more likely to be arrested for marijuana possession than a white person, even though Black and white people use marijuana at similar rates. In 10 states, Blacks were more than five times more likely to be arrested.
• In states that legalized marijuana, arrest rates decreased after legalization, however racial disparities still remained.

A Tale of Two Countries: Racially Targeted Arrests in the Era of Marijuana Reform comes at a time when the criminal legal system is overwhelmed by the public health crisis presented by COVID-19 that demands expedited decarcercal action to safeguard the lives of those incarcerated in and employed by jails and prisons. The reforms recommended in this report provide a roadmap for reducing marijuana arrests and criminalization as governors, prosecutors, judges, and other stakeholders across the country grapple with the harms presented by the public health crisis and take steps to release people from jails and prisons.

“Many state and local governments across the country continue to aggressively enforce marijuana laws, disproportionately targeting Black communities,” said Ezekiel Edwards, director of the Criminal Law Reform Project at the ACLU and one of the primary authors of the report. “Criminalizing people who use marijuana needlessly entangles hundreds of thousands of people in the criminal legal system every year at a tremendous individual and societal cost. As a matter of racial justice and sound public health policy, every state in the country must legalize marijuana with racial equity at the foundation of such reform.”

To combat the racial disparities rampant in marijuana-related arrests, the ACLU is calling not only for an end to racialized policing, but also for full legalization of marijuana use and possession and specific measures to ensure legalization efforts are grounded in racial justice. This includes pressing for passage of the MORE Act, which  aims to correct historical injustices of the failed War on Drugs that has terrorized Black communities by decriminalizing marijuana at the federal level, reassessing marijuana convictions, and investment in economically disadvantaged communities.