Sentencing Law and Policy

"Race and Ethnicity of Violent Crime Offenders and Arrestees, 2018"

The title of this post is the title of this notable new statistical brief from DOJ's Bureau of Justice Statistics.  Here are portions of the first few paragraphs of the document:

In 2018, based on data from the FBI’s Uniform Crime Reporting (UCR) Program, black people were overrepresented among persons arrested for nonfatal violent crimes (33%) and for serious nonfatal violent crimes (36%) relative to their representation in the U.S. population (13%).  White people were underrepresented.  White people accounted for 60% of U.S. residents but 46% of all persons arrested for rape, robbery, aggravated assault, and other assault, and 39% of all arrestees for nonfatal violent crimes excluding other assault.  Hispanics, regardless of their race, were overrepresented among arrestees for nonfatal violent crimes excluding other assault (21%) relative to their representation in the U.S. population (18%).

These UCR data on incidents of nonfatal violent crime can be compared to data from the National Crime Victimization Survey (NCVS) to determine how much offense and arrest diferences by race and ethnicity can be attributed to diferences in criminal involvement.  The NCVS collects information on victims’ perceptions of ofenders’ race, ethnicity, and other characteristics in incidents of violent crime.  This survey is administered to persons age 12 or older from a nationally representative sample of U.S. households. The 2018 NCVS data fle includes interviews from 151,055 households.

An examination of ofenders’ characteristics, as reported by victims in the NCVS, provides information on racial and ethnic disparities beyond an arrestee and population-based comparison.  Based on the 2018 NCVS and UCR, black people accounted for 29% of violent-crime offenders and 35% of violent-crime offenders in incidents reported to police, compared to 33% of all persons arrested for violent crimes.

At the same time, white offenders were underrepresented among persons arrested for nonfatal violent crimes (46%) relative to their representation among offenders identifed by victims in the NCVS (52%).  When limited to offenders in incidents reported to police, white people were found to be arrested proportionate to their criminal involvement (48%). Hispanic offenders were overrepresented among persons arrested for nonfatal violent crimes (18%) relative to their representation among violent offenders (14% of all violent offenders and 13% of violent offenders in incidents reported to police).  However, victims were unable to determine if the offender was Hispanic in 9% of single-offender incidents and 12% of multiple-offender incidents, which may have resulted in some underestimates of Hispanic offenders’ involvement in violent crime.

Details on Ohio's new ban of juve LWOP and the broader national landscape

As mentioned in this recent post, Ohio recently enacted a new law largely banning life without parole sentences for juveniles.  Daniel Nichanian has this new piece at The Appeal: Political Report about the law and the national develops in this space. I recommend the whole piece, and here are excerpts (with links and the graphic from the original):

Ohio is expanding access to parole hearings for people who have been incarcerated ever since they were children.  It will no longer sentence minors to life without the possibility of parole, and it will significantly curtail sentences that effectively amount to the same. 

Youth justice advocates are celebrating Senate Bill 256, which was signed into law by Governor Mike DeWine on Saturday, as their latest win in nationwide efforts to keep kids from spending their life in prison. The law is a “huge sea change” for the state, said Kevin Werner, policy director at the Ohio Justice & Policy Center, because “it recognizes that people change. … The heart of the bill is that Ohio values redemption over excessive punishment.”

SB 256, which is retroactive, only affects parole eligibility; it does not guarantee that people actually get released, even after spending decades in prison.  Under the new law, people who committed a crime as a minor will be eligible for parole after no more than 18 years of incarceration if the crime did not involve a homicide, or after no more than 25 to 30 years if it did.  That’s longer than in other states that have recently adopted similar laws....

Ohio is the 24th state, plus D.C., that will stop imposing sentences of juvenile life without parole.  A wave of states have adopted similar reforms since the Supreme Court ended mandatory life without parole sentences for minors in a series of early 2010s rulings.  Oregon, in 2019, and Virginia, in 2020, did this most recently. 

Brooke Burns, who heads the Ohio Public Defender’s Juvenile Department, stresses that SB 256 will also help the state confront significant racial inequalities in its prison population.  “When we think about lengthy sentences, it’s overwhelmingly kids of color who are impacted by that,” said Burns.

These inequalities stem from disparate sentencing, but also the rate at which children of color are transferred to adult court in the first place, especially in counties such as Cuyahoga (Cleveland) that do so very aggressively.

The Appeal reported in 2019 that the office of Prosecuting Attorney Michael O’Malley has been transferring minors to adult court far more than other Ohio jurisdictions.  Ninety-four percent of those who were transferred to adult court in 2018 were Black. 

Ohio’s Legislative Services Commission estimates that 50 to 60 people will immediately become eligible for parole when SB 256 becomes effective; this is approximately the number of people who have served at least 18 years, and in some cases much more, of the sentences they received when they were minors.  Many more will become newly eligible for parole in subsequent years.  The law will apply to most people who are serving outright sentences of life without parole, but also to people whose sentences are functionally equivalent since their parole eligibility was set so far in the future....

In Oregon and Virginia, the two states that most recently adopted laws to end juvenile life without parole, the state government is run by Democrats.  But SB 256 had to pass through Ohio’s GOP-run legislature — which it did with wide bipartisan majorities — and get support from the Republican governor.

"Racial Justice Requires Ending the War on Drugs"

The title of this post is the title of this new article authored by Brian Earp, Jonathan Lewis and Carl Hart along with with Bioethicists and Allied Professionals for Drug Policy Reform  in the American Journal of Bioethics. Here is its abstract:

Historically, laws and policies to criminalize drug use or possession were rooted in explicit racism, and they continue to wreak havoc on certain racialized communities.  We are a group of bioethicists, drug experts, legal scholars, criminal justice researchers, sociologists, psychologists, and other allied professionals who have come together in support of a policy proposal that is evidence-based and ethically recommended.  We call for the immediate decriminalization of all so-called recreational drugs and, ultimately, for their timely and appropriate legal regulation.  We also call for criminal convictions for nonviolent offenses pertaining to the use or possession of small quantities of such drugs to be expunged, and for those currently serving time for these offenses to be released.  In effect, we call for an end to the “war on drugs.”

Rounding up some notable recent criminal justice commentary

There are lots and lots of interesting criminal justice issues floating around these days, and these recent commentary catching my eye capture just a slice of what some folks are talking about:

From the Boston Globe, "What Trump’s pardons say about criminal justice"

From CNN, "How Joe Biden can root out racism in criminal justice"

From CNN Business, "Criminal justice reform can start with employers who give felons a second chance"

From The Hill, "Joe Biden should eliminate federal death row on his first day in office"

From The Hill, "Five ways Biden can jumpstart criminal justice reform immediately"

From Lawfare, "Are Trump’s Pardons a Blessing in Disguise?"

From USA Today, "COVID-19 compels America to rethink who we lock up in prison"

From Vice, "2020 Was the Year That Momentous Drug Reform Became Normal"

"Getting Explicit About Implicit Bias"

The title of this post is the title of this effective extended discussion published in the latest issue of Judicatre. which understandibly give particular attention to research regarding criminal case processing.  The piece's preamble explains that, to "better understand the effect of implicit bias in the courtroom, Judge Bernice Donald of the United States Court of Appeals for the Sixth Circuit talked with Professors Jeffrey Rachlinski and Andrew Wistrich of Cornell Law School."  The whole discussion is interesting, and here are some excerpts:

Implicit bias can play a role at every stage of the process, from the first encounter a suspect has with the police through criminal sentencing.  Police might be more inclined to arrest Black suspects and prosecutors might be more apt to pursue cases against Black defendants.  Furthermore, judges might be given different information about Black defendants than white defendants. With disparities at every stage, the effect of implicit bias can snowball.

We do not mean to exonerate judges completely.  As we note below, some evidence suggests that they do impose disparate sentences by race, notwithstanding our research.  Also, judges are responsible for monitoring prosecutors, police, probation officers, and others who might themselves be expressing implicit bias....

There is plenty of evidence that judges are being influenced by litigant race and gender beyond just the experimental studies we have conducted with hypothetical questions.  As an example, studies show that Black defendants receive longer sentences and female defendants receive shorter sentences.  These results have persisted for decades.  Of course, sentencing data can be noisy in the sense that others — probation officers, prosecutors, etc. — are involved in setting the stage for judges’ decisions.  These results, however, dovetail with our experiments in which such factors are controlled....

Many judges are alert to the danger of bias in the courtroom and work to neutralize it.  Some types of implicit bias, however, such as those based on age, skin tone, height, weight, citizenship, etc., also have an influence on judges.  We worry that even judges who are sensitive to racial inequity might overlook some of these other sources of unfairness.

Of course, the suspicion that judges are influenced by race or gender bias is profoundly disillusioning and dispiriting for a society that rightly demands equality in the courtroom.  Disparities in the administration of justice by a judge are particularly hurtful for racial or ethnic minorities and for women, perhaps particularly so when they turn to the courts for justice and redress for the effects of prejudice in the broader society.  Acknowledging the imperfections of the judiciary can be painful for judges — especially those subject to reselection — and can give rise to public criticism and even cynicism.

"'I See What Is Right and Approve, But I Do What Is Wrong': Psychopathy and Punishment in the Context of Racial Bias in the Age of Neuroimaging"

The title of this post is the title of this new paper now available via SSRN authored by Alison Lynch and Michael L. Perlin.  Here is its abstract:

Criminology research has devoted significant attention to individuals diagnosed either with antisocial personality disorder (ASPD) or psychopathy.  While in the past, the two terms were used somewhat interchangeably, researchers today are starting to see that the two terms in fact represent two very different personality types and offending patterns.  In this article, we examine this development from a legal perspective, considering what this might mean in terms of punishment for these two personality types based on the different characteristics they display in their actual offenses and their responses to punishment and rehabilitation.  Specifically, we will focus on how the use of these terms has a disproportionate negative impact on persons of color.

Current research estimates that one in five violent offenders can be classified as a psychopath, a term fraught with controversy and excluded from the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM V).  However, this category of offenders presents dramatically different characteristics than individuals with antisocial personality disorder, which is often incorrectly conflated with psychopathy.  Emerging research using neuroimaging is demonstrating that the brain of a psychopath responds differently to punishment than the brains of other non-psychopathic criminal offenders.  As research continues, it is critical for criminologists, attorneys and judges to begin thinking about whether brain science should affect our modern views of punishment, and whether individuals should be punished differently based on their diagnosis or neurophysiology.  This is not a topic that has been the subject of substantial contemporaneous legal analysis, and we hope that this article invigorates the conversation.

In this article, we first present some background on the controversy of "psychopathy" diagnosis, sharing in this context what we call the “inside baseball” about the debate — on the differences between psychopathy and ASPD — that has rocked the psychology academy.  We focus next on how the instruments that are used to assess these conditions are subject to significant racial bias.  We then unpack these issues through a lens of therapeutic jurisprudence, a school of thought that considers the extent to which the legal system can be a therapeutic agent.  We will also analyze how our current ideas about punishment and recidivism could change, using psychopathy research as a case study. Finally, we will consider how this new research creates extra responsibilities for both lawyers and expert witnesses in their representation of criminal defendants in such cases.

Following the Garden State's path to ending mass incarceration

This new commentary authored by Jeremy Travis and Marc Mauer provides yet another reason to love the Garden State. The piece is headlined "New Jersey shows that we can end mass incarceration," and here are excerpt:

New Jersey is on a path to release more than 3,000 people from prison as part of Gov. Phil Murphy’s attempts to fight the spread of the COVID-19 virus in the criminal justice system.  While the pandemic has kept far too many of us feeling trapped at home, Murphy is responding to this crisis in a way that prioritizes freedom for thousands of Americans.  In fact, since the beginning of the outbreak, New Jersey’s prison population has shrunk by 35%.

But it shouldn’t take a deadly virus to know that too many Americans remain stuck in prisons, serving sentences that are unnecessarily long and being denied basic human dignities like privacy and safety....

Rather than asking taxpayers to maintain this massive prison system, our nation should be demanding a different investment strategy.  Prison budgets should be cut and the savings directed to support crime prevention strategies of proven effectiveness, including substance abuse treatment programs, early intervention with families at risk, and community-based anti-violence initiatives.  Savings should also be reinvested in Black and brown communities that have borne the brunt of this failed policy.  Achieving this goal will move society toward repairing decades of harm while also advancing a stronger and healthier nation....

The United States has become the world leader in incarceration not simply because we send more people to prison.  We also keep them behind bars far longer than other nations. One in every seven people in prison today — an estimated 206,000 — is serving some form of a life sentence.  People are staying behind bars well into old age, leading modern-day prisons to resemble a network of high-security nursing homes.

These excessive sentences are counterproductive in reducing crime because individuals “age out” of their high crime years.  Long prison terms frequently extend well past the point of diminishing returns for public safety.  Other democracies have recognized this statistical truth and rarely imprison individuals for more than 20 years.

New Jersey is already starting to make these changes.  Following the recommendations of a bipartisan Criminal Sentencing and Disposition Commission, the state is tackling critical reforms that may shrink the prison population and close the racial gap in incarceration rates.  So far, the Legislature has debated policies like ending mandatory minimum sentences for many nonviolent crimes, expanding compassionate release, and resentencing people assigned multi-decade punishments when they were teenagers.

Under the leadership of Gov. Murphy, New Jersey is becoming a model for how states can use thoughtful, systemic, and data-driven policies to chart the end of mass incarceration and eliminate racial disparities.... In response to the onslaught of the COVID-19 pandemic, tens of thousands of people have been released from U.S. prisons.  It took the United States 40 years to quadruple its incarceration rate. With brave leadership and sustained community advocacy, we can end the reality of mass incarceration and its underlying systemic racism within a generation.  Our national promise of freedom demands no less.

"Defund the crime beat"

The title of this post is the title of this potent posting authored by Tauhid Chappell and Mike Rispoli at the NeimanLab site.  Here is how it starts (with links from the original):

Let’s be honest: Crime coverage is terrible.

It’s racist, classist, fear-based clickbait masking as journalism.  It creates lasting harm for the communities that newsrooms are supposed to serve.  And because it so rarely meets the public’s needs, it’s almost never newsworthy, despite what Grizzled Gary in his coffee-stained shirt says from his perch at the copy desk.

This should be the year where we finally abolish the crime beat.  Study after study shows how the media’s overemphasis on crime makes people feel less safe than they really are and negatively shapes public policy around the criminal–legal system.  And study after study shows that it’s racist and inhumane.

While crime coverage fails to serve the public, it does serve three powerful constituencies: white supremacy, law enforcement, and newsrooms — specifically a newsroom’s bottom line.

Making a great case for greater data to improve sentencing decision-making and sentencing systems

I was very pleased this morning to see this new Atlantic piece authored by two Ohio state jurists, Judge Pierre H. Bergeron of the Ohio Court of Appeals and Justice Michael P. Donnelly of the Ohio Supreme Court.  Because I have had the honor of participating in ongoing efforts to improve sentencing data in the Buckeye State, I knew I was going to like the piece when I saw its full title: "How a Spreadsheet Could Change the Criminal-Justice System: A lack of data instills trial-court judges with enormous, largely unrestrained sentencing power."  And the full piece, which I fully recommend, does a terrific job of advocating against allowing sentencing to occur in dangerous darkness because of the absence of sound and accessible sentencing data.  Here are some excerpts from the piece (with links from the original):

Judges have various restrictions on what they can say publicly, and for that reason, you don’t often hear our voices in contemporary public-policy debates.  But as momentum builds to address deep inequities in our criminal-justice system, we feel it’s important to highlight a problem lurking in the background that could jeopardize these efforts: Many court systems lack basic data about themselves, including about their criminal-sentencing decisions.  This means that when a judge considers a sentence for a criminal defendant, he or she has no way to evaluate it against others handed down for similar crimes in the same state, or even the same county....

A lack of data collection and analysis is a nationwide problem.  Many states, including Ohio, where we serve, do not have reliable statewide numbers on the criminal sentences they impose.  The states that do compile statistics have significant gaps.  The problem extends beyond sentencing — many states also can’t measure, for instance, what the average bail rate is for various offenses, or even the effectiveness of the bail system.

All of this may strike one as inconceivable: How does a court system lack basic statistics in this technological day and age?  The answer varies by state, but typically, antiquated IT infrastructure in state courts, no uniform requirements on compiling numbers, and a lack of coordination across jurisdictions precludes gathering meaningful numbers and demographics.  And, in many corners, institutional interests are aligned to resist transparency out of a fear of what might show up....

For states that are starting to gather statistics, they are finding troubling, but not surprising, results.  The Massachusetts Supreme Judicial Court commissioned an analysis of statewide numbers to evaluate racial disparities.  Plagued by many data challenges, this effort took several years.  The recently published report showed what many of us know: People of color are vastly overrepresented in the criminal-justice system as defendants; they receive longer sentences than white defendants; and they are typically charged with more serious offenses to begin with (a leverage tool to force plea agreements). When judges see reports that show this is happening in their own courts, they must ask themselves hard questions about their own complicity in these results.   

In 2016, investigative reporters with the Sarasota Herald-Tribune conducted a comparison study that confirmed racial disparities in Florida’s criminal-justice system. One of the examples from their study examined two cases involving armed robbery.  The same judge sentenced a white defendant to two years, but a Black defendant to 26 years — for essentially the same offense.  These two individuals were almost the same age, both had a single prior misdemeanor, and they were rated the same based on Florida’s sentencing guidelines.  When judges have virtually unchecked discretion, and they lack ready access to sentencing data, these discrepancies are bound to continue happening....

Although data challenges are pervasive and a key barrier to criminal-justice reform, they can be solved. In response to the statewide analysis conducted by the Sarasota Herald-Tribune, Florida legislators passed groundbreaking legislation to standardize the way the state gathers and shares information.  The state has already missed some deadlines, but the legislation as designed would render Florida one of the most transparent states in the country from a criminal-data perspective.

Other states are also starting to create comprehensive databases so that informed criminal sentences are accessible to all stakeholders — judges, prosecuting and defense attorneys, defendants, and policy makers.  Currently, the nonprofit Measures for Justice has compiled statistics for 16 states.  Ohio, led by Chief Justice Maureen O’Connor, is in the process of developing a felony-sentencing database with the objective of making information accessible, shareable, and reportable.  It can’t come soon enough.  Indeed, if every state acted quickly, we could solve this issue in short order, and then move on to implement lasting criminal-justice reform that would end mass incarceration.

The goal of these efforts is not to eliminate judicial discretion (judges aren’t robots, after all) but to provide sound analysis to inform judges in the exercise of that discretion.  If everyone has complete access to information, the prosecutor can make an informed sentencing recommendation, the defense counsel can use the data to make his or her case, and the judge can feel secure in knowing that the sentence imposed fits well within the range from other courts around the state.  If the sentence deviates up or down, the judge can give a reason on the record, providing greater transparency in the process.  Objective measures that are comparable, consistent, and reliable can better ensure the equalized application of justice....

The judicial system relies on the trust of our citizenry; public confidence is its lifeblood.  We must act in deliberate and real ways to create change in our courts. And that requires working with all stakeholders — including the community, legislators, and law enforcement.  No one, including judges, can sit back and pretend that the problem of inequality is too intractable or the result of someone else’s decisions any longer.  Collecting and utilizing sentencing data will help build a better, more equitable justice system.

"Institutionalizing inequality in the courts: Decomposing racial and ethnic disparities in detention, conviction, and sentencing"

The title of this post is the title of this recent article published in the latest issue of Criminology authored by Marisa Omori and Nick Petersen.  Here is its abstract:

A significant body of literature has examined racial and ethnic inequalities in sentencing, focusing on how individual court actors make decisions, but fewer scholars have examined whether disparities are institutionalized through legal case factors.  After finding racial and ethnic inequalities in pretrial detention, conviction, and incarceration based on 4 years of felony court data (N = 83,924) from Miami‐Dade County, we estimate nonlinear decomposition models to examine how much of the inequalities are explained by differences in criminal history, charging, and for conviction and incarceration, pretrial detention.

Results suggest that inequality is greatest between White non‐Latinos and Black Latinos, followed by White non‐Latinos and Black non‐Latinos, ranging from 4 to more than 8 percentage points difference in the probability of pretrial detention, 7–13 points difference in conviction, 5–6 points in prison, and 4–10 points difference in jail.  We find few differences between White non‐Latinos and White Latinos.  Between half and three‐quarters of the inequality in pretrial detention, conviction, and prison sentences between White non‐Latino and Black people is explained through legal case factors.  Our findings indicate that inequality is, in part, institutionalized through legal case factors, suggesting these factors are not “race neutral” but instead racialized and contribute to inequalities in court outcomes.

"The Mass Criminalization of Black Americans: A Historical Overview"

The title of this post is the title of this article that is soon to be published in an issue of the Annual Review of Criminology and is authored by Elizabeth Hinton and DeAnza Cook. Here is its abstract:

This review synthesizes the historical literature on the criminalization and incarceration of black Americans for an interdisciplinary audience.  Drawing on key insights from new histories in the field of American carceral studies, we trace the multifaceted ways in which policymakers and officials at all levels of government have used criminal law, policing, and imprisonment as proxies for exerting social control in predominantly black communities from the colonial era to the present.  By underscoring this antiblack punitive tradition in America as central to the development of crime-control strategies and mass incarceration, our review lends vital historical context to ongoing discussions, research, and experimentation within criminology and other fields concerned about the long-standing implications of institutional racism, violence, and inequity entrenched in the administration of criminal justice in the United States from the top down and the ground up.

Sentencing Council for England and Wales issues new sentencing guidelines for firearm offenses that include drawing drawing sentencers' attention to historic disparities

As reported in this official news release, titled "Sentencing guidelines for firearms offences published," the Sentencing Council for England and Wales has released some new sentencing guides that includes an especially interesting element intended to respond to historic ethnic sentencing bias.  Here are the basics from the release (with some emphasis added):

Today, the Council is launching eight new sentencing guidelines to be used by the Crown Court and magistrates’ courts in England and Wales when sentencing firearms offences. The new guidelines will come into effect on 1 January 2021.

The aim of the guidelines, which will apply to adult offenders, is to help the courts deliver appropriate sentence levels for the unlawful possession of firearms and take a consistent approach to sentencing these offences.

Firearms offences are serious.  Some offences carry life imprisonment, some carry sentences of up to 10 years, and some require minimum sentences of five years, but there are currently no sentencing guidelines in the Crown Court and only one for use in magistrates’ courts.

Analysis conducted by the Council in preparation for the guidelines suggests there are disparities in sentence outcomes for some firearms offences based on ethnicity (see the response to consultation, pages 29-32).  The Council has taken measures in the guidelines to address this, including drawing sentencers’ attention to evidence of sentencing disparities in specific offences as an integral part the sentencing process.  The Council is committed to continuing to investigate apparent disparity in sentencing outcomes across all offences and will take further action as and when there is evidence of effective measures that can be applied to guidelines. 

This new article from The Guardian, headlined "Judges told they should consider previous racial bias before sentencing: Guidelines remind the bench black offenders tend to receive longer sentences for firearms offences," provides some additional context.  Here is an excerpt:

Judges and magistrates are to be given explicit reminders for the first time in sentencing guidelines of the disparity in punishments being imposed by the courts on white, Asian and black offenders. The advice is included in formal directions circulated by the sentencing council to those on the bench about how they should assess penalties for firearm offences.

The offences, which cover possession, discharge and manufacture of weapons, can result in a maximum prison term of up to 10 years. The eight new guidelines come into effect on 1 January.

Judges and magistrates are asked to consider the culpability of offenders according to whether, for example, the gun was loaded, shots have been fired, if it was for criminal purpose and the harm caused to any victim. But it is the inclusion of explicit reminders to judges and magistrates that the courts have in the past not achieved racial parity in the distribution of punishments that is highly unusual and novel.

In the guideline for the offence of possessing a firearm without a certificate, for example, judges and magistrates are reminded: “Sentencers should be aware that there is evidence of a disparity in sentence outcomes for this offence which indicates that a higher proportion of Black and Asian offenders receive an immediate custodial sentence than White offenders and that for Black offenders custodial sentence lengths have on average been longer than for White offenders.”

The note continues: “There may be many reasons for these differences, but in order to apply the guidelines fairly sentencers may find useful information and guidance … [in specific sections of] the Equal Treatment Bench Book.”

In another note, on possession of a prohibited weapon, the reminder states: “Sentencers should be aware that there is evidence of a disparity in sentence outcomes for this offence which indicates that where the minimum term applies, a higher proportion of White offenders receive a sentence below the mandatory minimum term, and as a result less severe sentences compared to Black, Asian and Other ethnicity offenders.”...

In 2017, a review by David Lammy QC, commissioned by the Ministry of Justice, highlighted bias against black and minority-ethnic suspects in the criminal justice system of England and Wales.  Among possible reasons for disparities, the sentencing council said, may be the “significance given to previous convictions in sentencing firearms cases.  There is an overrepresentation of black, Asian and other ethnic groups at many stages throughout the criminal justice system compared to the White ethnic group which means that, for example, a black offender may have a more significant record than a White offender of the same age.”

"Police Prosecutions and Punitive Instincts"

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

This Article makes two contributions to the fields of policing and criminal legal scholarship.  First, it sounds a cautionary note about the use of individual prosecutions to remedy police brutality.  It argues that the calls for ways to ease the path to more police prosecutions from legal scholars, reformers, and advocates who, at the same time, advocate for a dramatic reduction of the criminal legal system’s footprint, are deeply problematic.  It shows that police prosecutions legitimate the criminal legal system while at the same time replaying the racism and ineffectiveness that have been shown to pervade our prison-backed criminal machinery.

The Article looks at three recent trials and convictions of police officers of color, Peter Liang, Mohammed Noor, and Nouman Raja, in order to underscore the argument that the criminal legal system’s race problems are playing themselves out predictably against police officers.  The Article argues that we should take the recent swell of prison abolitionist scholarship to heart when we look at police prosecutions and adds to that literature by exploring this controversial set of defendants that are considered a third rail, even among most abolitionists.

Second, the Article argues that police prosecutions hamper large-scale changes to policing.  By allowing law enforcement to claim that brutality is an aberration, solvable through use of the very system that encourages brutality in the first place, we re-inscribe the failures of policing and ignore the everyday systemic and destructive violence perpetrated by police on communities of color.  In order to achieve racial justice and real police reform, we must reduce our reliance on the police, rather than looking to the criminal legal system to solve this crisis.

New Sentencing Project fact sheet on "Incarcerated Women and Girls"

The Sentencing Project has released today this notable new fact sheet titled "Incarcerated Women and Girls" which examines (pre-COVID) female incarceration trends. I recommend the full piece (which includes lots of informative graphics), and here are excerpts:

Over the past quarter century, there has been a profound change in the involvement of women within the criminal justice system.  This is the result of more expansive law enforcement efforts, stiffer drug sentencing laws, and post-conviction barriers to reentry that uniquely affect women.  The female incarcerated population stands over seven times higher than in 1980. More than 60% of women in state prisons have a child under the age of 18.

Between 1980 and 2019, the number of incarcerated women increased by more than 700%, rising from a total of 26,378 in 1980 to 222,455 in 2019....

Women in state prisons are more likely than men to be incarcerated for a drug or property offense.  Twenty-six percent of women in prison have been convicted of a drug offense, compared to 13% of men in prison; 24% of incarcerated women have been convicted of a property crime, compared to 16% among incarcerated men.

The proportion of imprisoned women convicted of a drug offense has increased from 12% in 1986 to 26% in 2018.

Notable review of New York's recent parole realities

This Times Union has this notable new article on New York's notable parole realities under the full headline "A 'broken' parole process: Data shows widened racial bias: Four years after racial disparities exposed, a state report has yet to be released." Here is how the piece gets started:

A white inmate in a New York prison is significantly more likely on average to be released on parole than a Black or Hispanic person — and that gap has widened in 2020, according to a Times Union analysis of the nearly 19,000 parole board decisions over the last two years.

The disparities continue despite steps by the Department of Corrections and Community Supervision to make the parole board more diverse.  That initiative began about four years ago, after Gov. Andrew M. Cuomo ordered an investigation by the inspector general's office into revelations in a New York Times series that exposed the racial imbalances in parole and prison disciplinary proceedings.  The investigation has languished and no public report has been released.

The inspector general’s office, in an email response to questions, asserted without providing any data that racial disparities have gone down in recent years.  They offered a list of policy changes that have been made, including changes to sentencing guidelines, appeals processes and implicit bias training.

DOCCS, which oversees New York’s 53 state prisons, said the Times Union's analysis was too limited.  Spokesman Thomas Mailey wrote that the analysis was inadequate because detailed factors like disciplinary and program records, positions of the district attorney, sentencing courts and victim impact statements were not considered.

But officials contacted for this story did not provide any evidence countering the Times Union's core findings.  And those findings were averages based on each parole initial hearing and reappearance over the last two years, showing that the racial disparities were prevalent in the outcomes.

In discretionary parole hearings from October 2018 through October 2020, where commissioners from the Board of Parole decided whether incarcerated people should be released from prison, the Times Union’s analysis showed that 41 percent of white people were granted parole, compared to 34 percent of Blacks and 33 percent of Hispanics.  These numbers include initial parole appearances once people meet their minimum sentences, as well as subsequently scheduled reappearances, which are usually every two years.  It excludes more specialized categories such as medical hearings or those relating to deportations.

If Black and Hispanic people were paroled at the same rates as whites over the last two years alone, there would be 675 fewer people behind bars.

Notable new Gallup poll numbers on perceptions of the US criminal justice system

This new Gallup release, headlined "Fewer Americans Call for Tougher Criminal Justice System," reports on new polling number concerning pubic views on the US criminal justice system.  Here are the details:

Americans' belief that the U.S. criminal justice system is "not tough enough" on crime is now half of what it was in Gallup's initial reading of 83% in 1992.  The latest measure, at 41%, is the lowest on record and down slightly from the previous reading in 2016 -- although it remains the view of the plurality.  At the same time, there has been a seven-percentage-point uptick among those who say the system is "too tough" (21%) and no change among those who think it is "about right" (35%).

Americans' perceptions of whether the criminal justice system in the U.S. is too tough, not tough enough or about right in its handling of crime since 1992.  The percentage saying it is not tough enough has fallen from 83% in 1992 to 41% now.  At the same time, the percentage saying it is about right has risen from 12% in 1992 to the current 35%, and those who think it is too tough has increased from 2% in 1992 to 21% now.

Across the five times Gallup has asked this question since 1992, when public perceptions of national and local crime rates were at or near their highest points, there has been a steady decrease in the percentage saying the system is not tough enough and increases in the percentages saying it is too tough or about right.  These changes coincide with declines in crime rates in the U.S.  The latest reading is from Gallup's annual Crime poll, conducted Sept. 30-Oct. 15, 2020.

Americans' faith in the U.S. criminal justice system remains low according to Gallup's 2020 Confidence in Institutions poll conducted earlier this year, and confidence in one element of that system -- the police -- fell to a record-low level in the same poll.  This decline in confidence in the police followed several high-profile deaths of Black Americans at the hands of police officers, including George Floyd, Breonna Taylor and Rayshard Brooks.

Views of the criminal justice system vary by party identification and racial background.  A 58% majority of Republicans and Republican-leaning independents say the criminal justice system is not tough enough.  However, this view is shared by less than half as many Democrats and Democratic-leaning independents (25%), while 37% think the system is about right and 35% too tough.

More White Americans than non-White Americans say the justice system is not tough enough on crime (45% vs. 31%, respectively).  The plurality of non-White adults, 40%, think it is about right, while 26% believe it is too tough.

Americans across these four party and racial subgroups have become significantly less likely to say the criminal justice system is not tough enough, but it has declined the most among Democrats, falling from 62% in 2000 to 25% today.  Over the same period, Democrats' view that the system is too tough has grown from 6% to 35%.

Given two options for approaches to lowering the U.S. crime rate, more Americans prefer putting money and effort into addressing social and economic problems such as drug addiction, homelessness and mental health (63%) rather than putting money and effort into strengthening law enforcement (34%).

"The Intersectionality of Age and Gender on the Bench: Are Younger Female Judges Harsher with Serious Crimes?"

The title of this post is the title of this new paper now available via SSRN authored by Morris Hoffman, Francis Shen, Vijeth Iyengar and Frank Krueger. Here is its abstract:

We analyzed sentencing data from sixteen years of criminal trials in the State of Colorado, consisting of almost 3,000 individual sentences, and discovered an interaction effect of harm, gender, and age not reported in any of the empirical or experimental literature.  Young female judges punished high harm crimes substantially more than their male and older female colleagues.  These results, if confirmed, could have significant strategic and tactical implications for practicing lawyers.  They may also inform policies surrounding judicial selection, education, training, and retirement.

"Life Without Parole Sentencing in North Carolina"

The title of this post is the title of this notable new paper authored by Brandon Garrett, Travis Seale-Carlisle, Karima Modjadidi and Kristen Renberg now available via SSRN.  Here is its abstract:

What explains the puzzle of life without parole (LWOP) sentencing in the United States?  In the past two decades, LWOP sentences have reached record highs, with over 50,000 prisoners serving LWOP.  Yet during this same period, homicide rates have steadily declined.  The U.S. Supreme Court has limited the use of juvenile LWOP in Eighth Amendment rulings. Further, death sentences have steeply declined, reaching record lows.  Although research has examined drivers of incarceration patterns for certain sentences, there has been little research on LWOP imposition.

To shed light on what might explain the sudden rise of LWOP, we examine characteristics of the more than 1,627 cases in which LWOP was imposed from 1995 to 2017, in North Carolina, one of the states that imposes the largest numbers of these sentences.  We begin by analyzing defendant race, crime, and sentence patterns by county.  We associate LWOP with homicide rates, and examine interactions between homicide, victim race, and prior LWOP sentencing. 

This first empirical analysis of adult LWOP sentences finds important local variations in its imposition.  We find that as the homicide rate increases within a county, we observe fewer LWOP sentences.  We find that fewer LWOP sentences are predicted to occur as the number of black victim homicides increase in a county, but no such relationship is found when considering the number of white victim homicides.  Finally, we find a strong path dependency and concentration of LWOP sentences in counties, where counties that have imposed LWOP sentences in the past are more likely to continue to do so.  These findings have implications for efforts to reconsider the most severe sentences in the U.S., and they suggest that prosecutorial discretion in seeking long sentences will be important subjects for future research and policy.

Digging carefully into what the FIRST STEP Act has, and has not, really achieved

Malcolm C. Young, a long-time justice reform advocate, sent me an interesting new report he has completed titled "How Much Credit Should Trump be Given for the First Step Act?".  This new report, which I recommend in full, is a continuation of some research which was recently published in the Journal of Community Corrections under the title "The First Step Act and Reentry."  That Fall 2019 article makes the case that "as a law intended to improve federal reentry, the FSA falls short."  Young's new report, which can be downloaded below, is a detailed effort to pushback on some of Prez Trump's claims about "his" achievements through the FIRST STEP Act.  Here is an excerpt from the start of the report:

Trump is entitled to take credit for signing the FSA into law and the reductions in the federal prison use that followed. But the FSA, which was drafted by legislators, is neither the first nor the largest reform in recent years.  For examples, a reform in sentences for crack cocaine at the close of the George Bush administration reduced the use of federal prisons by close to three-quarters of the reduction obtained from the FSA.  A downward adjustment in drug sentences that cleared the United States Sentencing Commission (USSC) during the Obama administration resulted in nearly half-again as much a reduction in prison use (146%) as resulted from the FSA at the end of its first year.  And, finally, including the downward adjustment in drug sentences, Obama-era reforms resulted in more than double (230%) the FSA’s reduction in prison use in its first year.

As to benefits for Black Americans, the FSA’s reductions in sentences for crack cocaine benefited Black individuals disproportionally, as intended, yet very little more than did three similarly structured reforms intended to alleviate racial disparities in federal drug sentencing.  The FSA’s other provisions benefit smaller proportions of Black individuals.

As to reentry, the Trump administration's claim that, “[t]he landmark First Step Act enacted commonsense criminal justice reform that is helping prisoners gain a new lease on life and is making America safer” is, regrettably, simply not true.  These aspects of the FSA are not working.  But the fault lies more with Congress than Trump.

Download Trump and the First Step Act October 2020

"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?