Thursday, May 19, 2022

"Paying for a Clean Record"

The title of this post is the title of this new paper authored by Amy Kimpel and just published in the Journal of Criminal Law & Criminology. Her is its abstract

Prosecutors and courts often charge a premium for the ability to avoid or erase a criminal conviction.  Defendants with means, who tend to be predominantly White, can often pay for a clean record.  But the indigent who are unable to pay, and are disproportionately Black and Brown, are saddled with the stigma of a criminal record.  Diversion and expungement are two popular reforms that were promulgated as ways to reduce the scale of the criminal legal system and mitigate the impact of mass criminalization.  Diversion allows a defendant to earn dismissal of a charge by satisfying conditions set by the prosecutor or court, thereby avoiding conviction.  Expungement seals or erases the defendant’s record of arrest or conviction.  Some diversion and expungement programs are cost-free, but most are not.  Yet a criminal record carries its own costs.  A criminal record can limit where an individual can live, go to school, and whether they receive public benefits.  As 93% of employers conduct background checks on job applicants, the inability to avoid a criminal record can create barriers to employment and the accumulation of wealth.  Costly diversion and expungement programs further calcify race and class divides, contributing to the construction of a permanent underclass.

This Article examines the promises and pitfalls of diversion and expungement as means to combat mass criminalization.  These two mechanisms work in tandem to provide access to a “clean record,” but not enough attention has been paid to the dangers they present due to differential access to clean records based on financial means.  This Article considers legal challenges to the current schemes and explains how requiring defendants to pay for a clean record enables courts and prosecutors to profit from the perpetuation of racial caste.  Ultimately, this Article argues that the impacts of diversion and expungement programs are more modest than reformers claim, and that these programs need to be offered at no cost if they are to succeed in achieving the goal of reducing racial disparities in our criminal courts and in society at large.

May 19, 2022 in Collateral consequences, Race, Class, and Gender, Reentry and community supervision | Permalink | Comments (3)

Wednesday, May 18, 2022

"Criminal Law Exceptionalism"

The title of this post is the title of this new article on SSRN authored by Benjamin Levin.  Here is its abstract:

For over half a century, U.S. prison populations have ballooned and criminal codes have expanded.  In recent years, a growing awareness of mass incarceration and the harms of criminal law across lines of race and class has led to a backlash of anti-carceral commentary and social movement energy.  Academics and activists have adopted a critical posture, offering not only small-bore reforms, but full-fledged arguments for the abolition of prisons, police, and criminal legal institutions.  Where criminal law was once embraced by commentators as a catchall solution to social problems, increasingly it is being rejected, or at least questioned.  Instead of a space of moral clarity, the “criminal justice system” is frequently identified by critical scholars and activists as a space of racial subordination, widespread inequality, and rampant institutional violence.

In this Article, I applaud that critical turn.  But, I argue that, when taken seriously, contemporary critiques of the criminal system raise foundational questions about power and governance — issues that should transcend the civil/criminal divide and, in some cases, even the distinction between state and private action.  What if the problem with the criminal system isn’t exclusively its criminal-ness, but rather is the way in which it is embedded in and reflective of a set of problematic beliefs about how society should be structured and how people should be governed? What if the problems with criminal law are illustrative, rather than exceptional? Ultimately, I argue that the current moment should invite a de-exceptionalization of criminal law and a broader reckoning with the distributive consequences and punitive impulses that define the criminal system’s functioning — and, in turn, define so many other features of U.S. political economy beyond criminal law and its administration.

May 18, 2022 in Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (0)

Thursday, May 12, 2022

New Sentencing Project fact sheet highlights rise (and recent declines) in the incarceration of women and girls

The folks at The Sentencing Project have assembled some fascinating data on the number of incarcerated women at this site and in this fact sheet. Here is part of their description of the fact sheet:

Between 1980 and 2020, the number of incarcerated women increased by more than 475%, rising from a total of 26,326 in 1980 to 152,854 in 2020.  The total count in 2020 represents a 30% reduction from the prior year — a substantial but insufficient downsizing in response to the COVID-19 pandemic, which some states began to reverse in 2021.

Research on female incarceration is critical to understanding the full consequences of mass incarceration and to unraveling the policies and practices that lead to their criminalization. The number of incarcerated women was nearly five times higher in 2020 than in 1980.

Incarcerated Women and Girls examines female incarceration trends and finds areas of both concern and hope.  While the imprisonment rate for African American women was nearly twice that of white women in 2020, this disparity represents a sharp decline from 2000 when Black women were six times as likely to be imprisoned.  Since then Black women’s imprisonment rate has decreased by 68% while white women’s rate has increased by 12%.

Similar to adults, girls of color are more likely to be incarcerated than white girls.  Tribal girls are more than four times as likely, and African American girls are more than three times as likely as white girls to be incarcerated.

All the data in the fact sheet are fascinating, and these particular data points really caught my attention:

May 12, 2022 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1)

Wednesday, May 11, 2022

"Race-Norming and Statistical Discrimination: Beyond the NFL"

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

This Article uses the recent NFL “race-norming” scandal — in which Black players with concussion claims were scored differently on cognitive impairment tests, based on the assumption that they were less intelligent at baseline—  as an entry point to a broad-ranging analysis of inconsistencies in the law’s treatment of statistical discrimination.  The Supreme Court has emphatically and repeatedly rejected efforts to justify otherwise-illegal discrimination against individuals by resort to statistical generalizations about groups. This doctrine makes practices like the NFL’s not just repugnant, but illegal — yet such practices are pervasive and persistent, in high-stakes settings far beyond the NFL.  Similar race-norming in diagnostic algorithms is ubiquitous in medicine, for example, but has avoided legal scrutiny.  Moreover, the justice system itself has embraced numerous similar practices, including demographic norming of intellectual-capacity assessments for defendants facing the death penalty, explicit class-based discrimination in criminal justice risk assessments, and the use of race- and sex-specific actuarial data to calculate tort damages.  This Article examines these practices, the law governing them, and the reasons for these disconnects between law and practice.

May 11, 2022 in Procedure and Proof at Sentencing, Race, Class, and Gender | Permalink | Comments (0)

Tuesday, May 10, 2022

FAMM urges feds to seek sentence reductions for all incarcerated persons subject to sexual abuse at Dublin FCI

As detailed in this local article from a few months ago, numerous staffers at the federal prison in California have been criminally charged with sexually abusing numerous incarcerated women.  (As press pieces have noted, Dublin FCI "had become known by the nickname 'Rape Club' due to rampant sexual abuse" with dozens of employees investigated for wrong-doing.)  Brining a sentencing angle to this sad story, yesterday FAMM sent this letter to Deputy Attorney General Lisa Monaco urging "the BOP to seek, and U.S. Attorneys to file, reduction of sentence motions for every woman whose allegations have been found credible."

I recommend the two-page FAMM letter in full, and here is an excerpt:

The Bureau of Prisons can refer compassionate release motions to the U.S. Attorney for filing when it finds extraordinary and compelling reasons warrant a reduction in sentence. While the policy statement describing extraordinary and compelling reasons does not include sexual abuse by corrections officials, it does provide the BOP the power to identify “other reasons,” that alone or in combination with recognized criteria merit compassionate release.

Sexual assault by BOP personnel of incarcerated women is an exceptional abuse of trust.  The trauma resulting from such victimization is without doubt an extraordinary and compelling reason justifying consideration for compassionate release. None of the victims was sentenced to endure such violence. It has made their incarceration degrading and terrifying.  The victims could not protect themselves or flee their abusers.  Many struggle to speak about their experience for fear of retaliation.  Sexual abuse survivors bear the emotional scars of their violation for years. Mental health care in the federal system is inadequate to help them begin to heal....

A motion filed by the U.S. Attorney on behalf of the Bureau of Prisons is the best opportunity to secure emotional and physical safety for women who endured sexual abuse by BOP personnel.  A Department-sanctioned motion carries the weight of the Department’s imprimatur, something a defendant-filed motion does not.  But, more than that, a motion filed by the United States would convey the gravity of the harm these women endured and signal your commitment to make it right.

May 10, 2022 in Prisons and prisoners, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (11)

Monday, May 09, 2022

"Low Income, Poor Outcome: Unequal Treatment of Indigent Defendants"

The title of this post is the title of this new paper on SSRN authored by Nino Monea. Here is its abstract:

It is no secret that the law treats poor people worse than rich ones.  This is true in criminal law and everywhere else.  But some laws do not simply result in disparate impact upon the poor — the way they are written explicitly targets or disadvantages the poor.  This Article examines the spectrum of expressly biased laws in four major categories.

First, laws that criminalize poverty: bans on poor housing or no housing, traffic laws that require nothing more than paying for things, and cash bail that imprisons people without access to credit.  Second, courts impose an enormous number of unwaivable fees at every step of the criminal justice system, and failure to pay results in incarceration — a modern day debtor prison.  Third, many criminal procedure rules place the needy on unequal footing.  Only indigent defendants are required to suffer reduced expectations of privacy, disclose certain information, face judicial scrutiny, endure low caps on what their attorneys can be paid, or go into hearing without an attorney.  And fourth, after conviction, these defendants face unique hurdles to recover for wrongful imprisonment or expensive expungement processes.

May 9, 2022 in Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender | Permalink | Comments (0)

Sunday, May 01, 2022

"Abolishing the Evidence-Based Paradigm"

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

The belief that policies and procedures should be data-driven and “evidence-based” has become criminal law’s leading paradigm for reform.  This evidence-based paradigm, which promotes quantitative data collection and empirical analysis to shape and assess reforms, has been widely embraced for its potential to cure the emotional and political pathologies that led to mass incarceration.  It has influenced reforms across the criminal procedure spectrum, from predictive policing through actuarial sentencing.  The paradigm’s appeal is clear: it promises an objective approach that lets data – not politics — lead the way and purports to have no agenda beyond identifying effective, efficient reforms.

This Article challenges the paradigm’s core claims.  It shows that the evidence-based paradigm’s objectives, its methodology, and its epistemology advance conventional assumptions about what the criminal legal system should strive to achieve, whom it should target, and whose voices and interests matter.  In other words, the evidence-based paradigm is political, and it does have an agenda.  And that agenda, informed by neoliberalism and the enduring legacy of white supremacy in the criminal legal system, strengthens — rather than challenges — the existing system.

The Article argues that, if left unchallenged, the evidence-based paradigm will continue to reproduce the system’s disparities and dysfunctions, under the veneer of scientific objectivity.  Thus, it must be abolished and replaced with a new approach that advances a true paradigm shift about the aims of criminal legal reform and the role and definition of data and empiricism in advancing that vision.

May 1, 2022 in Data on sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (3)

Friday, April 29, 2022

GOP Senators introduce competing crack/powder sentencing reform bill tougher than EQUAL Act

Regular readers should be aware from my prior postings that Congress seems poised to pass the EQUAL Act to entirely eliminate the crack and powder cocaine sentencing disparity.  This disparity and its racialized impacts have been an ugly part of the federal sentencing landscape for over 35 years (when Congress first created the 100:1 disparity), and the Fair Sentencing Act of 2010 only partially reduced the disparity (down to 18:1).  But after the US House voted overwhelmingly, 361-66, to pass the EQUAL Act to end disparity last year, and after the Senate version had secured 11 GOP sponsors, I was hopeful the powder and crack cocaine disparity could and would finally be ended this year.

But, this press release from Senator Chuck Grassley's office, titled "Senators Introduce Bill To Reduce Crack-Powder Sentencing Disparity, Protect Communities From Criminals Most Likely To Reoffend," now has me concerned that a competing bill might now muck up the works.  Here are the details from the release:

Sens. Chuck Grassley (R-Iowa), Mike Lee (R-Utah), Roger Wicker (R-Miss.) and Lindsey Graham (R-S.C.) today introduced the SMART Cocaine Sentencing Act, which will reduce the sentencing disparity between crack and powder cocaine offenders tried in federal courts. The legislation aims to make sentencing fairer while also preserving the ability of courts to keep those most likely to reoffend off the street.

“I’ve worked on this issue for many years. I cosponsored the 2010 legislation led by Senators Durbin and Sessions to reduce the disparity in sentencing from 100-to-1 to 18-to-1.  It’s high time to do more to address this important issue and make our criminal code more just and fair.  Our legislation will significantly reduce this disparity while ensuring those more likely to reoffend face appropriate penalties.  Powder cocaine is being trafficked across the border in historic volumes, so we also need to take precautions that ensure these traffickers also face justice for spreading poison through our communities,” Grassley said....

This sentencing disparity between crack and powder cocaine offenders has had a disparate impact on communities of color across the country.  Reducing this disparate impact is critical, but must be thoughtfully enacted to prevent likely reoffenders from returning to communities just to violate the law again.

Separate legislation has been introduced in the Senate to completely flatten the differences between sentences for crack cocaine and powder cocaine offenses.  This approach does not account for the differences in recidivism rates associated with the two types of cocaine offenses.  According to a January 2022 analysis from the U.S. Sentencing Commission (USSC), crack cocaine offenders recidivate at the highest rate of any drug type at 60.8 percent, while powder cocaine offenders recidivate at the lowest rate of any drug type at 43.8 percent.  Raising additional public safety concerns, USSC data reveals that crack cocaine offenders were the most likely among all drug offenders to carry deadly weapons during offenses. These statistics show the need for a close look at all available government data before we consider an approach to flatten sentencing for crack and powder cocaine offenses. 

The SMART [Start Making Adjustments and Require Transparency in] Cocaine Sentencing Act will reduce the current crack-to-powder cocaine sentencing disparity from 18:1 to 2.5:1. It reduces the volume required to trigger 5-year mandatory minimum sentences for powder cocaine from 500 grams to 400 grams, and from 5 kilograms to 4 kilograms for 10-year mandatory minimum sentences.  For crack cocaine, the volume triggering a 5-year mandatory sentence is increased from 28 grams to 160 grams; the volume for the 10-year mandatory sentence is lifted from 280 grams to 1,600 grams.

Critically, the SMART Cocaine Sentencing Act also requires an attorney general review and certification process for any retroactive sentencing adjustments. It provides for new federal research from the Drug Enforcement Administration and the Department of Health and Human Services regarding the lethality and addictiveness of these substances as well as what violence is associated with cocaine-related crimes. The legislation also requires a new report from the USSC on crack and powder cocaine offenses, including data on recidivism rates....

Full legislative text of the SMART Cocaine Sentencing Act can be found HERE.  

Kevin Ring has an effective Twitter thread here criticizing various aspects of this proposal, which he calls the "The Grassley Unequal Act."  I hope that this bill does not impede progress on the EQUAL Act, but the fact that the EQUAL Act has not become law already make me concerned about the fate and future or long-overdue efforts to end the crack/cocaine sentencing disparity.

A few of many prior posts on the EQUAL Act:

UPDATE This new New York Times article, headlined "Drug Sentencing Bill Is in Limbo as Midterm Politics Paralyze Congress," details why the EQUAL Act may not get to the finish line in this Congress.  Here are excerpts:

[W]ith control of Congress at stake and Republicans weaponizing a law-and-order message against Democrats in their midterm election campaigns, the fate of the measure is in doubt. Democrats worry that bringing it up would allow Republicans to demand a series of votes that could make them look soft on crime and lax on immigration — risks they are reluctant to take months before they face voters.

Even the measure’s Republican backers concede that bringing it to the floor could lead to an array of difficult votes.  “I assume the topic opens itself pretty wide,” said Senator Roy Blunt, Republican of Missouri, who became the 11th member of his party to sign on to the Equal Act this month, giving its supporters more than the 60 votes needed to overcome procedural obstacles....

Though Mr. Schumer endorsed the legislation in April, he has not laid out a timeline for bringing it to the floor.  Democrats say he is giving backers of the bill a chance to build additional support and find a way to advance the measure without causing a floor fight that could take weeks — time that Democrats do not have if they want to continue to win approval of new judges and take care of other business before the end of the year....

Its supporters say that they recognize the difficulties but believe that it is the single piece of criminal justice legislation with a chance of reaching the president’s desk in the current political environment.  “Of all the criminal justice bills, this is the one that is set up for success right now,” said Inimai Chettiar, the federal director for the Justice Action Network. “It is not going to be easy on the floor, but I think it is doable.”

The problem is that the push comes as top Republicans have made clear that they intend to try to capitalize on public concern about increasing crime in the battle for Senate and House control in November....  Senator Mitch McConnell, the Kentucky Republican and minority leader, this week reprised his criticism of Judge Jackson and attacked Mr. Biden for having issued his first round of pardons and commutations, including for those convicted of drug crimes.  “They never miss an opportunity to send the wrong signal,” he said of Democrats.

Senator Tom Cotton, the Arkansas Republican who led the opposition to the First Step Act, said he was in no mood to let the Equal Act sail through. He has said that if the disparity is to be erased, penalties for powder cocaine should be increased.  “My opposition to the Equal Act will be as strong as my opposition to the First Step Act,” Mr. Cotton said.

The legislation encountered another complication on Thursday, when Senators Charles E. Grassley of Iowa and Mike Lee of Utah, two top Republican supporters of the previous criminal justice overhaul, introduced a competing bill that would reduce — but not eliminate — the sentencing disparity between crack and powder cocaine. They said that research showed that crack traffickers were more likely to return to crime and carry deadly weapons.  “Our legislation will significantly reduce this disparity while ensuring those more likely to reoffend face appropriate penalties,” said Mr. Grassley, the top Republican on the Judiciary Committee.

Sponsors of the Equal Act say they intend to push forward and remain optimistic that they can overcome the difficulties.  “We’ve got an amazing bill, and we’ve got 11 Republicans and people want to get this done,” said Senator Cory Booker, Democrat of New Jersey and the lead sponsor of the legislation. “My hope is that we are going to have a shot to get this done right now.”

With strong advocates of the EQUAL Act now saying that getting this to the floor of the Senate is "doable" or can "have a shot," I cannot help but think it is quite a long shot this Congress.  Sigh.

April 29, 2022 in Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Race, Class, and Gender, Who Sentences | Permalink | Comments (1)

New Grid feature take close look at "past and uncertain future of executions in America"

The publication Grid has this terrific new dive into the US death penalty under this full title: "The death penalty: The past and uncertain future of executions in America; Fewer people are being sentenced to death, and concerns about cruelty and racial bias remain, but some states are trying to move ahead with executions anyway."  Though that title reveals some key themes to Grid's overall review, the full coverage is thoroughly engaging because it includes three different reporters unpacking three different "lenses" of the story.  Here are the headlines of each of the pieces:

Legal: "Shifting views of 'cruel and unusual'"

Science: "Medical groups and drug companies push back"

Policy: "Support for executions wanes, but racial bias persists"

In addition to the discussion of the issue through different lenses, the Grid piece has some really cool data graphics.  One sets out the yearly particulars behind this execution factoid: "A majority of all 14,480 recorded executions since 1800 have been by hanging.  About a third have been by electric chair, 1 in 10 by lethal injection and less than 1 percent by firing squad."

April 29, 2022 in Death Penalty Reforms, Race, Class, and Gender | Permalink | Comments (0)

Tuesday, April 26, 2022

"Bad Faith Prosecution"

The title of this post is the title of this new paper on SSRN authored by Ann Woolhandler, Jonathan Remy Nash and Michael G. Collins. Here is its abstract:

In our increasingly polarized society, claims that prosecutions are politically motivated, racially motivated, or just plain arbitrary are more common than ever.  The advent of “progressive” prosecutors will no doubt increase claims of bad faith prosecution.  The Supreme Court has required relatively high standards for claims of race- or speech-motivated prosecution.  Many have condemned the standards used by the Court as unduly limiting bad faith prosecution claims, and as inconsistent with ordinary standards for proving cases of unconstitutional motivation.  In this article we address these criticisms and suggest that current standards may provide an appropriate middle ground between the perils of standards that are too lax or too stringent for bad faith prosecution claims.  We also address other arguable inconsistencies between the standards for bad faith prosecutions claims and those for related areas, and offer resolutions. Finally, we show how the rise of progressive prosecutors may make proof of bad faith prosecutions easier.

April 26, 2022 in Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Tuesday, April 19, 2022

Justice Department tweaking prison PATTERN risk tool "to ensure that racial disparities are reduced to the greatest extent possible"

This new NPR piece, headlined "Justice Department works to curb racial bias in deciding who's released from prison," reports on the latest steps being taken to tweak the operation of the FIRST STEP Act.  Here  are the details:

The Justice Department is moving to reduce racial disparities in a tool it uses to assess a prisoner's risk of a return to crime, after scholars and justice advocates pressed for change. Among other steps, it plans to make tweaks that would significantly increase the number of Black and Hispanic men in prison who are eligible to take educational classes or work-life programs that could lead to an earlier release.

But the tool, known as Pattern, continues to overestimate the number of Black women who will engage in recidivism, compared to white women in prison.  And in its latest effort to overhaul the troubled risk assessment algorithm, the Justice Department said it is still unable to resolve other racial disparities. The department outlined the new developments in a report sent to Congress on Tuesday and obtained by NPR, pledging that it would continue to work "to ensure that racial disparities are reduced to the greatest extent possible."

"When using factors with criminal history, prison discipline, and education, the tool is almost inevitably going to have disparities — unless they correct for systemic biases in policing, prosecution, corrections, and education," said Melissa Hamilton, a law professor at the University of Surrey who has closely followed the process.

NPR dissected problems with Pattern in a report earlier this year. It uncovered sloppy math mistakes and other flaws that put thousands of prisoners in the wrong risk category and treated them differently in part because of their ethnic backgrounds. The Justice Department will roll out the new version of Pattern early next month, which it said "will neither exacerbate nor solve these racial bias issues." But the department said it was making other adjustments that could translate into a real difference for people of color in prison.

A law called the First Step Act that passed with bipartisan majorities during the Trump administration offers people in prison a path to early release, by earning time credits for performing work and taking educational classes behind bars. Only low and minimum risk prisoners are eligible for those programs, so how the Bureau of Prisons assesses risk has major consequences for their lives and their release plans.

In its new report, DOJ said it would make no changes to how it evaluates violent recidivism risks, saying that measure provided an essential check for "public safety." Instead, the department shifted the boundaries between other risk levels for its general recidivism algorithm. DOJ estimated that 36 percent more Black men and 26 percent more Hispanic men might now qualify as minimum or low risk, with smaller increases for Black and Hispanic women in prison.

UPDATE: I am pretty sure the report referenced in this NPR piece is this one just released by the Justice Department titled simply "First Step Act Annual Report."  As stated at the start of the executive summary: "This Report reflects the ongoing efforts of the Department of Justice (the Department) to make the goals of the First Step Act a reality and summarizes the Department’s activities in that respect during the period since the publication of the last annual Report, in December 2020."

April 19, 2022 in FIRST STEP Act and its implementation, Prisons and prisoners, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Monday, April 18, 2022

Notable dissent from three Justices on consideration of racial bias in capital case jury selection

This morning's SCOTUS order list had a lot of denials of cert, along with one dissent that generated a somewhat lengthy opinion.  The opinion in Love v. Texas, No. 21–5050, was technically a dissent from the denial of summary vacatur; Justice Sonia Sotomayor authored this seven-page dissent, which Justices Breyer and Kagan joined. This opinion started and ended this way:

Racial bias is “odious in all aspects,” but “especially pernicious in the administration of justice.”  Buck v. Davis, 580 U.S. ___, ___ (2017) (slip op., at 22) (internal quotation marks omitted).  When racial bias infects a jury in a capital case, it deprives a defendant of his right to an impartial tribunal in a life-or-death context, and it “‘poisons public confidence’ in the judicial process.” Ibid.  The seating of a racially biased juror, therefore, can never be harmless.  As with other forms of disqualifying bias, if even one racially biased juror is empaneled and the death penalty is imposed, “the State is disentitled to execute the sentence,” Morgan v. Illinois, 504 U.S. 719, 729 (1992).

In this case, petitioner Kristopher Love, a Black man, claims that one of the jurors in his capital trial was racially biased because the juror asserted during jury selection that “[n]on-white” races were statistically more violent than the white race.  29 Record 145.  The Texas Court of Criminal Appeals never considered Love’s claim on the merits.  Instead, relying on an inapposite state-law rule, the court concluded that any error was harmless because Love had been provided with two extra peremptory strikes earlier in the jury selection proceeding, which he had used before the juror at issue was questioned.  That decision was plainly erroneous.  An already-expended peremptory strike is no cure for the seating of an allegedly biased juror.  The state court thus deprived Love of any meaningful review of his federal constitutional claim.  I would summarily vacate the judgment below and remand for proper consideration....

Over time, we have endeavored to cleanse our jury system of racial bias.  One of the most important mechanisms for doing so, questioning during voir dire, was properly employed here to identify a potential claim of bias.  Safeguards like this, however, are futile if courts do not even consider claims of racial bias that litigants bring forward.  The task of reviewing the record to determine whether a juror was fair and impartial is challenging, but it must be undertaken, especially when a person’s life is on the line.  I would ensure that Love’s claim is heard by the Court of Criminal Appeals, rather than leave these questions unanswered.  I respectfully dissent.

April 18, 2022 in Death Penalty Reforms, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (15)

Wednesday, April 13, 2022

Prison Policy Initiative releases new report providing a "deep dive into state prison populations"

As detailed in this press release, today the "the Prison Policy Initiative published Beyond the Count, a report that examines the most recent and comprehensive demographic data about people in state prisons and provides a groundbreaking view of the lives of incarcerated people before they were locked up."  Here is more about the report from the press release:

The report analyzes data from the Bureau of Justice Statistics’ “Survey of Prison Inmates,” collected in 2016 and released in late 2020.  The data show what many in the criminal justice reform movement already know: that the U.S. criminal justice system today locks up the least powerful people in society.  Key takeaways include:

  • Many, if not most, people in prison grew up struggling financially. 42% of survey respondents said their family received public assistance before they were 18. Respondents also reported uncommonly high levels of homelessness, foster care, and living in public housing before the age of 18.

  • Most individuals in state prisons report that their first arrest happened when they were children. 38 percent of the people BJS surveyed reported a first arrest before age 16, and 68% reported a first arrest before age 19. The average survey respondent had been arrested over 9 times in their life.

  • The typical person in state prison is 39 years old and has a 10th grade education, a fact that is most likely linked to youth confinement, which disrupts a young person’s life and schooling.

  • Half (49%) of people in state prisons meet the criteria for substance use disorder (SUD), and 65% were using an illicit substance in the immediate lead-up to their incarceration, suggesting that many people who are not locked up for drug offenses are still victims of our country’s choice to criminalize substance use rather than treat it as a health issue.

The Prison Policy Initiative’s report includes more than 20 detailed data tables that allow readers to better understand the people who are in state prisons and the challenges they have faced in their lives.  Beyond the Count also includes a section diving into the data on the race, age, gender identity, and sexual orientation of people in state prisons, explaining that a disproportionate number of incarcerated people are racial minorities, very young or very old, or LGBTQ.  Many of the key demographic findings in Beyond the Count (such as incarcerated people’s age at first arrest) are also broken down by race or gender.  While the data in this report is about people in state prisons, it does not allow statistics to be broken out for individual states.

April 13, 2022 in Data on sentencing, Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (2)

Sunday, April 10, 2022

"Transgender Rights & the Eighth Amendment"

The title of this post is the title of this recent article authored by Jennifer Levi and Kevin Barry and just posted to SSRN.  Here is its abstract:

The past decades have witnessed a dramatic shift in the visibility, acceptance, and integration of transgender people across all aspects of culture and the law.  The treatment of incarcerated transgender people is no exception.  Historically, transgender people have been routinely denied access to medically necessary hormone therapy, surgery, and other gender-affirming procedures; subjected to cross-gender strip searches; and housed according to their birth sex.  But these policies and practices have begun to change. State departments of corrections are now providing some, though by no means all, appropriate care to transgender people, culminating in the Ninth Circuit’s historic decision in Edmo v. Corizon, Inc. in 2019 — the first circuit-level case to require a state to provide transition surgery to an incarcerated transgender person.  Other state departments of corrections will surely follow, as they must under the Eighth Amendment.  These momentous changes, which coincide with a broader cultural turn away from transphobia and toward a collective understanding of transgender people, have been neither swift nor easy.  But they trend in one direction: toward a recognition of the rights and dignity of transgender people.

April 10, 2022 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender | Permalink | Comments (2)

Thursday, March 31, 2022

New short FAMM memo makes the case for the EQUAL Act

The folks at FAMM today released this short memo titled "The EQUAL Act: Why Congress Must #EndTheDisparity Between Federal Crack & Powder Cocaine Sentences."   Though only two pages, the memo cover a lot of ground, and here are some of its concluding points (with cites removed):

The crack-powder disparity fosters and entrenches racial inequality

  • In 2019, 81% of people convicted of crack cocaine crimes were Black, even though white and Hispanic people have historically accounted for over 66% of crack users.
  • Before Congress established the crack-powder disparity in 1986, the average federal drug sentence for Black people was 11% higher than for whites. Just four years later, the average federal drug sentence for Black defendants was 49% higher.
  • The U.S. Sentencing Commission found that, in the case of crack cocaine penalties, “perceived improper racial disparity fosters disrespect for and lack of confidence in the criminal justice system.”

Passing the EQUAL Act would reunite families sooner and protect taxpayers

  • If enacted, the EQUAL Act would reduce sentences for people serving time for crack offenses by an average of just over six years. This change alone would cut a total of 46,500 years off sentences.
  • For those convicted after the EQUAL Act passes, their average sentence will be reduced by 2.5 years. This change will reduce total sentences over the next ten years by 21,300 years.
  • By reducing unnecessary prison time by an estimated 67,800 years for people, 91 percent of whom are Black, the EQUAL Act will reunite thousands of families sooner and save hundreds of millions of taxpayer dollars in the first decade alone.

A few of many prior posts on the EQUAL Act:

March 31, 2022 in Drug Offense Sentencing, Race, Class, and Gender | Permalink | Comments (1)

Tuesday, March 29, 2022

Split North Carolina court finds some felon disenfranchisement violates state constitution

As reported in this local article, "North Carolina’s law banning many people with felony records from voting after they get out of prison is unconstitutional, a state court ruled Monday."  Here is more (with a link to the lengthy ruling):

Until now, state law allowed people with felony convictions to vote only once they finish their sentence.  That didn’t only include their prison sentence; it also included probation or parole, which sometimes can last for years after someone is released from prison.

Monday’s ruling, first reported by Carolina Public Press, changes that.  Now — pending a potential appeal of the ruling — people with criminal records can vote once they have rejoined society and are no longer behind bars.  The judges wrote that “if a person otherwise eligible to vote is not in jail or prison for a felony conviction, they may lawfully register and vote in North Carolina."

It wasn’t immediately clear if Republican lawmakers, who have defended the law so far, will appeal again.

The law is unconstitutional for generally violating people’s rights, the judges wrote Monday, but also for being explicitly targeted at Black people. Specifically, they wrote that the law “was enacted with the intent of discriminating against African American people and has a demonstrably disproportionate and discriminatory impact.”...

The News & Observer had previously reported that around 55,000 people might be affected by such a change, after an earlier ruling and subsequent appeal in this same case.  The new standard, that people can vote once they leave prison, is the most common practice nationwide, according to the National Conference of State Legislatures.  Two states, Maine and Vermont, let people vote even while in prison.  But most have at least some restrictions, with varying degrees of severity.

The ruling was 2-1 by the panel of three superior court judges assigned to the case. Judge John Dunlow, a Republican from Granville County, dissented.  The two in the majority were Judge Keith Gregory, a Wake County Democrat, and Judge Lisa Bell of Mecklenburg County, who is unaffiliated.

A small part of the law was already struck down just before the 2020 elections, The News & Observer reported, on the basis that in some cases the requirement still functioned similar to a Jim Crow-era poll tax — since some people remained on probation or parole simply for being unable to pay court fines or other costs.

March 29, 2022 in Collateral consequences, Race, Class, and Gender, Reentry and community supervision | Permalink | Comments (0)

Wednesday, March 23, 2022

Is Congress finally on the verge of equalizing crack and powder cocaine sentences?

I asked in this post a few weeks ago, "Why is getting the EQUAL Act through the US Senate proving so challenging?".  Excitingly, as detailed in this new Bloomberg piece, headlined "GOP Support Clears Senate Path for Bill on Cocaine Sentencing," it now looks like a bill to equalize crack and powder sentences now may have a ready path to passage. Here are the exciting details:

Ten Senate Republicans have signed on to a bill that would eliminate the federal sentencing disparity between drug offenses involving crack and powder cocaine, paving the way for likely passage in the evenly divided chamber where 60 votes are needed for most legislation.

“That looks like you’d get to 60, really,” said Kentucky Senator Rand Paul, one of the 10 GOP co-sponsors of the EQUAL Act.  “This is the Democrats’ prerogative, it’d be nice if they would bring it to the floor.”

Senate Majority Leader Chuck Schumer signed onto the bill as a co-sponsor on Monday, but his office did not immediately respond to questions on his plans for floor debate.  The bill passed the House, 361-66, in September and President Joe Biden, who campaigned on criminal justice reform, is expected to sign the measure when it reaches his desk.

The bill, sponsored by Judiciary Chairman Dick Durbin, an Illinois Democrat, and New Jersey Democratic Senator Cory Booker, eliminates the lower quantity thresholds for crack cocaine, which the bill’s proponents have said unjustly targets Black offenders.

In 2020, the U.S. Sentencing Commission found that 77.1% of crack cocaine trafficking offenders were Black and 6.3% were White.  Yet White people are more likely to use cocaine in their lifetime than any other group, according to the 2020 National Survey of Drug Use and Health.

Current laws establish an 18-to-1 ratio on federal penalties for crack and powder cocaine, meaning anyone found with 28 grams of crack cocaine would face the same five-year mandatory prison sentence as a person found with 500 grams of powder cocaine....

Sentencing disparities between crack and powder cocaine were originally created in 1986 with a 100-to-1 ratio.  The Sentencing Commission issued a special report in 1995 stating the 100-to-1 ratio punished low-level crack dealers “far more severely” than high-level suppliers of powder cocaine, despite there being no pharmacological difference between the two forms of the drug.  Then-President Bill Clinton and Congress rejected the commission’s recommendations to amend the law.

Fifteen years later, Congress reduced the sentencing disparity from to 18-to-1, but advocates have fought to further narrow the sentencing gap....

Senator Jerry Moran, a Kansas Republican, recently signed on as a co-sponsor of the bill after studying the issue with constituents, he said, and determining this would be a step toward “criminal justice fairness.” Moran said it is his “expectation that this bill will be considered by the Senate.”

A few related posts on the EQUAL Act:

March 23, 2022 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Race, Class, and Gender | Permalink | Comments (3)

Tuesday, March 22, 2022

"Bargaining Without Bias"

The title of this post is the title of this article authored by Cynthia Alkon and recently posted to SSRN.  Here is its abstract:

Bias, disparate treatment, and racism are embedded into the U.S. criminal legal system.  A key player within the criminal legal system who could dramatically reduce or eliminate these disparities are prosecutors.  Prosecutors enjoy extraordinary power and they exercise that power with few constraints. For most defendants the single most important prosecutorial decision, after charging, is the plea offer.  Yet, there are virtually no limitations on prosecutors during the plea bargaining stage and relatively little attention given to how standard plea bargaining practices can exacerbate bias. The prosecutor is the key decision maker and, unfortunately, standard prosecutorial practices can exacerbate the biases that are already embedded into the criminal legal system.  There are multiple challenges that make it difficult for prosecutors to reduce or eliminate their biases.  The first core problem is that plea bargaining is largely unsupervised and prosecutors have extraordinary power and virtually unlimited discretion in the process. Prosecutors regularly engage in hard bargaining tactics and there is no meaningful check on prosecutorial bias in deciding what offers to make on what cases.  The second core problem is that plea bargaining can exacerbate racial disparities and bias.  The third core problem is that once a case comes into the criminal legal system, and the case is charged, a prosecutor’s first offer acts as an anchor in the negotiation, regardless of whether the offer reflects bias.  Unlike in other negotiation contexts, the defendant in a criminal case most often has no meaningful option to counter or walk away from the prosecutor’s offer.

In this article, to work towards decreasing bias in plea bargaining, I propose a structural fix and an individual fix to these core problems.  The structural fix is that prosecutors' offices should adopt policies for blind assessment of cases when the first plea offer is made.  All indicia of race or ethnicity (including names and neighborhoods) should be removed when prosecutors review a case and make the initial plea offer.  This would help prosecutors focus on the facts and their evidence when making a plea offer and prevent bias in decision making.  However, it is not realistic to expect that prosecutors, even in offices that adopt blind charging and plea bargaining policies, would remain blind to who the individual defendant is in all cases, particularly in cases where the first offer is made after arraignment.  Therefore, the individual fix is to train prosecutors on empathy.  Prosecutors' offices should expand and improve training and programs on empathy to change how prosecutors view defendants.  People tend to have empathy for, and in the criminal context give the benefit of the doubt to, those who are "more like them" — including being the same race and socio-economic group. Empathy for others is a skill that can be taught, like trial skills, negotiation, or writing.  Prosecutors' offices need to include empathy skills as an integral part of their overall training. Improved empathy skills would help prosecutors to stop looking at defendants as simply "criminals" — a label that is often racially-based. Instead, more prosecutors could learn to see defendants, in the words of Bryan Stevenson, as "more than the worst thing" they have ever done.

March 22, 2022 in Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (6)

Thursday, March 10, 2022

Highlighting some disparities identified in recent "Dealing in Lives" report on federal life sentences for drug offenses

In this post a few days ago, I spotlighted this terrific new research paper authored by Alex Fraga, who serves as a Senior Research Associate at Ohio State's Drug Enforcement and Policy Center (DEPC).  The paper, titled "Dealing in Lives: Imposition of Federal Life Sentences for Drugs from 1990–2020," is the focal point of this new Filter article titled "Federal Life Sentences for Drugs: Unconscionable and Massively Biased." Here is some of the coverage:

Studying federal life and de facto life sentences for drugs in federal courts from 1990 to 2020, Dr. Fraga found stunningly awful racial disparities.  Federal life sentences are practically reserved for defendants who are Black (62.4 percent) or Hispanic (22 percent).  Crack cocaine was the drug involved in roughly half of federal life sentences, yet the disparities held independent of drug type.

In addition, many people were punished more harshly for wanting to exercise their constitutional rights.  As Fraga writes, “An astonishing 72% percent of those sentenced to life or de facto life for drug trafficking exercised their right to trial.”

When the system is largely a conveyor belt of plea bargains, with over 90 percent of cases never going to trial, “astonishing” is right.  Defendants who demand that prosecutors meet their burden of proof are often hit with harsher charges and sentencing outcomes.... 

Yet another layer of inconsistency and arbitrariness in federal drug sentencing exposed by the report covers is geography-based. Just five districts — three in Florida, one in Virginia and one in South Carolina — accounted for 25 percent of all federal life and de facto life sentences imposed for drug trafficking during the study period.  For context, there are 93 federal court districts in the nation. Each has its own presidentially-appointed US attorney, who enjoys a wide band of discretion on who to charge and with what.

How could this happen? Despite ostensible efforts toward uniformity, federal courthouses in different parts of the country have developed their own local legal cultures. For example, in southern Georgia, there is no public defender office for impoverished people charged with federal crimes; they receive appointed attorneys who are often uninvested and lack expertise in criminal law.  That district also has some of the harshest sentencing outcomes in the country.

I am grateful to see this engagement with some of the data in the new report, and there are so many other interesting findings therein.  As mentioned previously, a number of the paper's key findings (and visuals) can be viewed at this DEPC webpage.

Prior related post:

March 10, 2022 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Offender Characteristics, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (12)

Monday, February 14, 2022

"The High Cost of a Fresh Start: A State-By-State Analysis Of Court Debt As A Bar To Record Clearing"

The title of this post is the title of this new report produced by the National Consumer Law Center and the Collateral Consequences Resource Center.  The report examined how court debt — such as criminal fines, fees, costs, and restitution — serves as impediment to record clearing.  Here is the start of the report's executive summary:

For the nearly one-third of adults in the U.S. with a record of arrest or conviction, their record is not simply part of their past but a continuing condition that impacts nearly every aspect of their life.  Their record makes it hard to get a job and support a family, secure a place to live, contribute to the community, and participate fully in civic affairs.

In recent years, most states have passed laws aimed at restoring economic opportunity, personal freedoms, and human dignity to millions of these individuals by providing a path to clear their record.  But for too many, this relief remains out of reach because of monetary barriers, including not only the cost of applying for record clearing but also the requirement in many jurisdictions that applicants satisfy debt incurred as part of the underlying criminal case before they can have their record cleared.  This can be a high bar: the total amount of fines and fees can run to thousands of dollars for even minor infractions and can be considerably higher for felonies.

People prevented from clearing their record because they cannot afford to pay are usually those most in need of relief.  And, perversely, because a record significantly impairs economic opportunity, having an open record makes it harder to pay off fines and fees and therefore harder to qualify for record clearing.  This burden falls especially heavily on Black and Brown communities, which are more likely to have high concentrations of both criminal records and poverty because of structural racism in criminal law enforcement and in the economy.  Ability-to-pay tests and similar waiver approaches to reduce or eliminate monetary barriers to record clearing have been shown to be poor safeguards in many contexts.

This report explores the extent to which restricting access to record clearing based on outstanding criminal fines, fees, costs, and restitution — collectively known as “court debt” — may prevent poor and low-income people from getting a second chance.  After surveying research on the importance of record clearing and the mushrooming financial burdens imposed on criminal defendants, it analyzes the extent to which outstanding court debt is a barrier to record clearing under the laws of each of the 50 states, the District of Columbia, and the federal system.  Our study focuses in particular on generally applicable statutory authorities for clearing adult criminal convictions; it excludes record-clearing authorities available for other categories of records (e.g., non-conviction records) or for specific categories of individuals (e.g., victims of human trafficking).

February 14, 2022 in Collateral consequences, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Race, Class, and Gender | Permalink | Comments (4)

Wednesday, February 02, 2022

"Gender Favoritism Among Criminal Prosecutors"

The title of this post is the title of this new article authored by Stephanie Holmes Didwania available via SSRN. Here is its abstract:

Prosecutors enjoy wide discretion in the decisions they make but are largely unstudied by quantitative empirical scholars. This paper explores gender bias in prosecutorial decision-making.  I find that male and female prosecutors exhibit small and statistically insignificant differences in their treatment of defendants overall but demonstrate relative leniency towards defendants of their own gender.  Such favoritism at charging translates into a sentencing gap of roughly five months of incarceration for defendants who are paired with an own-gender prosecutor versus an opposite-gender prosecutor, which represents a roughly eight percent reduction in sentence length at the mean.  The estimates do not appear to be driven by differences in case assignments for male and female prosecutors.

February 2, 2022 in Data on sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (12)

Tuesday, February 01, 2022

Consumer Financial Protection Bureau reports on "Criminal Justice Financial Ecosystem"

This official press release, fully titled "CFPB Report Shows Criminal Justice Financial Ecosystem Exploits Families at Every Stage: Report Finds Products and Services Rife with Burdensome Fees and Lack of Choice," summarizes a notable new publication from the government agency tasked with safeguarding consumer financial products.  Here are excerpts from the press release, which includes a link to the CFPB's new report:

The Consumer Financial Protection Bureau (CFPB) today published a review of the financial issues facing people and families who come in contact with the criminal justice system. The report, “Justice-Involved Individuals and the Consumer Financial Marketplace,”  describes an ecosystem rife with burdensome fees and lack of choice, and where families are increasingly being forced to shoulder the costs. It walks through the financial challenges families encounter at every stage of the criminal justice process, and the ways in which providers — often for-profit private companies — are leveraging a lack of consumer choice and their own market dominance to impose hefty fees at families’ expense.

“Many incarcerated individuals and their families pay exorbitant fees for basic financial services,” said CFPB Director Rohit Chopra. “Today’s report describes how private companies undermine the ability for individuals to successfully transition from incarceration.”

Contact with the criminal justice system is extremely common in the United States. In 2019, 2.1 million adults in America were in jail or prison, another 4.4 million were under community supervision (such as probation), and 1 in 3 adults — or 77 million Americans — had a criminal record.  Those figures do not reflect the family members and friends who often provide financial support to people who have been arrested, incarcerated, or released from jail or prison, and who are also affected by shoddy financial products and services entwined in the criminal justice system. The burdens of the criminal justice system — and its financial impacts — fall most heavily on people of color, and women and people with lower incomes of all races and ethnicities.  Surveys have repeatedly found women, and specifically Black women, disproportionately shoulder the costs of staying in touch with loved ones in prison and paying court-related debt for family members, sometimes spending up to a third of their income on such costs and even forgoing basic necessities for themselves.

Today’s report examines the financial burdens that can occur from arrest to incarceration to reentry.  It shows that as soon as families come into contact with the criminal justice system, they are confronted with numerous financial challenges, and that for-profit companies are embedded throughout.  Specifically, the report raises issues about:

  • Burdensome fees: Many local, state, and federal governments impose criminal justice debt on the people who interact with it in the form of fines, fees, and restitution.  The consequences of failing to pay fines and fees can be severe, forcing people to choose between making payments they may struggle to afford and risking arrest, prosecution, detention, or reincarceration.  States are also increasingly using third-party debt collectors to collect criminal justice debt.  These debt collectors can tack on additional fines and fees that, if not paid, can result in incarceration.
  • Lack of consumer choice: For incarcerated people and their families, the choice of financial service providers is limited throughout the criminal justice system. In a normal functioning market, products compete on price and quality, but all too often, government contracts in the criminal justice system mean just one choice for consumers....
  • Shifting financial burdens: Increasingly, governments are shifting the cost of incarceration to people who are incarcerated and their families, forcing individuals to pay for charges related to court operations, a court-appointed public defender, drug testing, prison library use, and probation supervision. People are also charged “pay-to-stay” fees for expenses related to their custody and care, like room and board, or medical copayments. When services are outsourced to private companies, the prices set by those companies are often wildly inflated over typical market costs. 

February 1, 2022 in Fines, Restitution and Other Economic Sanctions, Race, Class, and Gender, Reentry and community supervision | Permalink | Comments (0)

Wednesday, January 26, 2022

Articulating concerns while celebrating implementation of FIRST STEP earned-time credits

As first discussed in this post, the Department of Justice a few weeks ago officially announced its new rule for "implementing the Time Credits program required by the First Step Act"; as noted in this follow-up post, the process of awarding retroactive credits to prisoners who were eligible and had already done the work to earn credits resulted in an immediate significant reduction of the federal prison population.  And though there is much to celebrate about this stage of implementation of a huge part of the FIRST STEP Act — which was enacted with overwhelming bipartisan support in Congress and signed by President Trump way back in late 2018 — I have noticed a number of new commentaries and other press pieces flagging concerns to watch.

This CNN opinion piece, by Michael Cohen, E. Danya Perry and Joshua Perry, carries a headline that is most celebratory: "This is an unmistakable win for incarcerated people."  But, after an effective review of the positives of the new DOJ rules on earned-time credits, it closes with these sentiments:

There is still a lot of work to be done. There are strong indications that the BOP is not offering enough high-quality programs to help support people in prison, particularly during the pandemic.  While unquestionably impactful, the act was indeed only a "first step" towards broader changes that are desperately needed to reduce our cruel and counterproductive overreliance on incarceration.  And even this welcome development does not erase the needless suffering of too many people, while the BOP pushed back against inmates seeking time credit and initially proposed a rule that cut against Congress' intent.

This Forbes piece by Walter Palvo picks up these themes with even more concern for the implementation particulars under the headline "Bureau Of Prisons Begins Implementing First Step Act With Release Of Thousands In Custody":

One concern is that there does not appear to be a consistent way these ETCs are being calculated at each institution.  Case managers, who have been keying in classes that prisoners have taken over the past two years, seem to have a liberal way of calculating ETC and those who I have spoke to about their release have no idea how their release date was calculated.  As one man told me, “I was just happy to be released and don’t care how they calculated it.”  However, for the man or woman sitting in prison, it makes a huge difference.  Many advocates may be giving one another high-fives, but, as history has demonstrated, the BOP somehow finds a way to mess up a good thing. The law. already has flaws as there are a number of exceptions carved out to prevent some offenses from being ineligible from earning ETC. 

And this new NPR piece from Carrie Johnson spotlights long-standing concerns about the PATTERN risk-assessment tool central to these new prison policies.  The lengthy piece is headline "Flaws plague a tool meant to help low-risk federal prisoners win early release," and here are excerpts:

Thousands of people are leaving federal prison this month thanks to a law called the First Step Act, which allowed them to win early release by participating in programs aimed at easing their return to society. But thousands of others may still remain behind bars because of fundamental flaws in the Justice Department's method for deciding who can take the early-release track. The biggest flaw: persistent racial disparities that put Black and brown people at a disadvantage.

In a report issued days before Christmas in 2021, the department said its algorithmic tool for assessing the risk a person in prison would return to crime produced uneven results. The algorithm, known as Pattern, overpredicted the risk that many Black, Hispanic and Asian people would commit new crimes or violate rules after leaving prison. At the same time, it also underpredicted the risk for some inmates of color when it came to possible return to violent crime....

Risk assessment tools are common in many states. But critics said Pattern is the first time the federal justice system is using an algorithm with such high stakes. Congress passed the First Step Act in 2018 with huge bipartisan majorities. It's designed to prepare people in prison for life afterwards, by offering credits toward early release for working or taking life skills and other classes while behind bars....

Only inmates who pose a low or minimal risk of returning to crime can qualify for the programs, with that risk level determined using the Pattern algorithm.... The implementation has been rocky. The Justice Department finished the first version of Pattern in a rush because of a tight deadline from Congress. It then had to make tweaks after finding Pattern suffered from math and human errors. About 14,000 men and women in federal prison still wound up in the wrong risk categories. There were big disparities for people of color.

Prior recent related posts:

January 26, 2022 in FIRST STEP Act and its implementation, Prisons and prisoners, Procedure and Proof at Sentencing, Race, Class, and Gender | Permalink | Comments (0)

Monday, January 24, 2022

Connecticut Supreme Court reverses sentence based "materially false information" that defendant was in "mythical group of teenage 'superpredators'"

A few helpful folks made sure I did not miss the notable ruling by the Connecticut Supreme Court this past Friday in State v. Belcher, No. SC 20531 (Conn. Jan 21, 2022) (available here). The start of the unanimous opinion sets out the basics:

The defendant, Keith Belcher, a juvenile offender, appeals from the trial court’s denial of his motion to correct an illegal sentence. After his conviction, the defendant received a total effective sentence of sixty years of incarceration.  He claims, inter alia, that the trial court improperly denied his motion to correct on the basis of the court’s conclusion that the sentencing court did not impose the sentence in an illegal manner by relying on materially false information.

Our review of the record reveals that the defendant established that the sentencing court substantially relied on materially false information in imposing his sentence, specifically, on the court’s view that the defendant was a ‘‘charter member’’ of a mythical group of teenage ‘‘superpredators.’’  Therefore, we conclude that the trial court abused its discretion in denying the defendant’s motion to correct.  Accordingly, we reverse the judgment of the trial court, and the case is remanded with direction to grant the defendant’s motion and for resentencing.

The full opinion merits a full read for many reasons.  Therein, one learns that the defendant here was only 14 when committing his crimes way back in 1993 (meaning he has now already served nearly three decades).  Also of note, the court avoids resolution of constitutional claims by deciding he gets resentencing based on the illegal manner of the original sentence's imposition. Here are a few highlights from the interesting opinion:

We conclude that the superpredator theory was baseless when it originally was espoused and has since been thoroughly debunked and universally rejected as a myth, and it therefore constituted false and unreliable information that a sentencing court ought not consider in crafting a sentence for a juvenile offender....

In the context of the sentencing of the defendant, a Black teenager, the court’s reliance on the materially false superpredator myth is especially detrimental to the integrity of the sentencing procedure for two reasons.  First, reliance on that myth invoked racial stereotypes, thus calling into question whether the defendant would have received as lengthy a sentence were he not Black.  Second, the use of the superpredator myth supported treating the characteristics of youth as an aggravating, rather than a mitigating, factor....

In summary, by invoking the superpredator theory to sentence the young, Black male defendant in the present case, the sentencing court, perhaps even without realizing it, relied on materially false, racial stereotypes that perpetuate systemic inequities — demanding harsher sentences — that date back to the founding of our nation.  In addition, contrary to Roper and its progeny, in relying on the superpredator myth, the sentencing court counted the characteristics of youth as an aggravating factor against the defendant.  Although we do not mean to suggest that the sentencing judge intended to perpetuate a race based stereotype, we cannot overlook the fact that the superpredator myth is precisely the type of materially false information that courts should not rely on in making sentencing decisions.  Whether used wittingly or unwittingly, reliance on such a baseless, illegitimate theory calls into question the legitimacy of the sentencing procedure and the sentence.

January 24, 2022 in Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Monday, January 17, 2022

How about passing the EQUAL Act so we can be "free at last" from the crack/powder sentencing disparity?

On MLK day, I have a tradition of making time to listen to the full "I Have A Dream" speech by Dr. King, which always delivers and always has its own unique power each and every listen.  In recent years, I have also used this day to explore Stanford University's awesome collection of MLK Papers; in posts linked below, I have quoted from various renown speeches and writings with an emphasis on the intersection of the civil rights movement and criminal justice reform.  But this recent news item from Wyoming has me today focused on a specific policy ask for advancing freedom and racial justice:

U.S. Sen. Cynthia Lummis, R-Wyo., became the seventh Republican co-sponsor of the EQUAL Act on Friday, which would fully and finally eliminate the federal sentencing disparity between crack and powder cocaine.

The two substances are virtually identical and equally dangerous, and yet crack carries a penalty that is 18 times that of powder cocaine, according to a news release. The bill passed in the House of Representatives by a margin of 361-66, including 143 Republicans.

Lummis joined Republican Sens. Rob Portman, R-Ohio; Rand Paul, R-Ky.; Thom Tillis, R-N.C.; Lindsey Graham, R-S.C.; Lisa Murkowski, R-Alaska, and Susan Collins, R-Maine, as co-sponsors. Advocates from across the political spectrum said the addition of Lummis is a clear indication that the EQUAL Act has the momentum needed to pass the Senate....

The EQUAL Act has support from groups across the political spectrum, including the Major Cities Chiefs Association, National District Attorneys Association, Americans for Tax Reform, Association of Prosecuting Attorneys, Prison Fellowship, Due Process Institute, Americans for Prosperity, FAMM, Catholic Prison Ministries Coalition, Faith and Freedom Coalition, ALEC Action, R Street Institute, FreedomWorks and Taxpayers Protection Alliance.

With seven notable and diverse GOP senators serving now serving as co-sponsors for the EQUAL Act, I have to believe this bill could easily overcome any filibuster efforts and secure passage on the floor of the Senate (likely by the 5 to 1 margin that it secured passage in the House).  So why is this not getting done ASAP?  To its credit, the Biden Administration has testified in support of the EQUAL Act in the US Senate, but I have not heard Prez Biden himself (or VP Harris) lean into this issue at all.  (Notably, if they want to focus on voting rights as a focal point for civil rights advocacy, they might also really advance the MLK legacy by taking on felony disenfranchisement.  Moreover, they should try to get bipartisan bills like the EQUAL Act passed into law so that people who care about criminal justice reform can better understand why they should bother to vote at all.)  

In part because US Sentencing Commission data reveal that "only" 1,217 persons were sentenced on crack trafficking offenses in FY 2020, which accounts for "only" 7.5% of all offenders sentenced for drug trafficking offenses, the import and impact of the EQUAL Act would not be as huge now as it might have been in years past.  (In FY 2009, just before the Fair Sentencing Act of 2010 reduced the crack/powder disparity from 100-1 to 18-1, there were over 5,000 persons sentenced on crack offenses; indeed, more than 5,000 persons were sentenced each year on federal crack offenses through most of the 2000s.)  Still, the USSC 2020 data show that over 93% of those sentenced for federal crack offenses are persons of color (with 77% black), so that there is still a profound inequitable impact from our federal sentencing scheme that still unfairly treats crack offenses as much more serious than functionally comparable powder offenses.

Links to some prior MLK Day posts:

A few related posts on the EQUAL Act:

January 17, 2022 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Race, Class, and Gender, Who Sentences | Permalink | Comments (2)

Latest issue of Dædalus explores "Reimagining Justice: The Challenges of Violence & Punitive Excess"

Wi22_Cover_ForWebThe Winter 2022 issue of the journal Dædalus has a series of essay on the topic of "Reimagining Justice: The Challenges of Violence & Punitive Excess."  Here is the issue's introduction from this issue page and a listing of the article titles and authors:

America has the highest incarceration rate in the world. Criminal justice policies of punitive excess and unequal protection under the law have sustained racial exclusion and added to the harsh conditions of poverty.  The Winter 2022 issue demands that we imagine a different kind of public safety that relies not on police and prisons, but on a rich community life that has eliminated racism and poverty.  Many of the solutions will lie beyond the boundaries of the criminal justice system and public policy, yet much of the work is already being done in communities around the country. And these efforts share, as the essays in this issue suggest, a common commitment to the values of healing, reconciliation, and human dignity.

Violence, Criminalization & Punitive Excess by Bruce Western and Sukyi McMahon

The Story of Violence in America by Kellie Carter Jackson

The Problem of State Violence by Paul Butler

Public Health Approaches to Reducing Community Gun Violence by Daniel W. Webster

Seeing Guns to See Urban Violence: Racial Inequality & Neighborhood Context by David M. Hureau

Developmental & Ecological Perspective on the Intergenerational Transmission of Trauma & Violence by Micere Keels

The Effects of Violence on Communities: The Violence Matrix as a Tool for Advancing More Just Policies by Beth E. Richie

Faces of the Aftermath of Visible & Invisible Violence & Loss: Radical Resiliency of Justice & Healing by Barbara L. Jones

The Foundational Lawlessness of the Law Itself: Racial Criminalization & the Punitive Roots of Punishment in America by Khalil Gibran Muhammad

Criminal Law & Migration Control: Recent History & Future Possibilities by Jennifer M. Chacón

Due Process & the Theater of Racial Degradation: The Evolving Notion of Pretrial Punishment in the Criminal Courts by Nicole Gonzalez Van Cleve

Recognition, Repair & the Reconstruction of “Square One” by Geoff K. Ward

Knowing What We Want: A Decent Society, A Civilized System of Justice & A Condition of Dignity by Jonathan Simon

All of these articles (along with abstracts) can be accessed at this webpage.

January 17, 2022 in Purposes of Punishment and Sentencing, Race, Class, and Gender, Recommended reading, Who Sentences | Permalink | Comments (0)

Friday, January 07, 2022

Two of three defendants convicted of murdering Ahmaud Arbery given LWOP, other gets life with parole

This lengthy USA Today piece reports on a high-profile state sentencing that took place down in Georgia.  Here are the basics:

A judge sentenced three men to life in prison Friday for the murder of Ahmaud Arbery and denied the possibility of parole for two of the defendants, father and son Gregory and Travis McMichael.  However Judge Timothy Walmsley granted the possibility of parole to William "Roddie" Bryan, the McMichaels' neighbor who joined the chase and took video of the killing. Bryan must serve at least 30 years in prison before becoming eligible....

Before the sentencing was read, Walmsley held a minute of silence to represent a fraction of the time Arbery was running before he was shot.  He called the image of Travis McMichael aiming a shotgun at Arbery "absolutely chilling." The judge also quoted the defendant's statements, saying their words gave context to the video and guided his sentencing decision. The minimum penalty required by law for the murder charges is a life sentence; Walmsley had to determine whether each defendant would have the possibility of parole....

The three men chased the Arbery, 25, in trucks while he was running through the Satilla Shores neighborhood in Brunswick, Georgia, on Feb. 23, 2020.  The men weren't arrested for more than two months when Bryan's video was released, which fueled nationwide racial justice protests and later became a key piece of evidence in the murder trial. The nearly-all white jury deliberated for almost two days before finding the men guilty.  They were taken to Glynn County jail after the verdict was reached and are expected to appeal....

Walmsley said that while sentencing may not provide closure for the family, the community or the nation, it would hold the defendants accountable for their actions.  Arbery's parents, Marcus Arbery and Wanda Cooper-Jones, cried as the sentence was read.  Earlier Friday, the family asked for all three defendants to get the harshest penalty as they shared memories of him and the toll his death has taken....

The defendants all had the opportunity to speak before sentencing, a time when judges typically expect to hear remorse, but did not....

After being sentenced on the state charges, the three men will face a federal hate crimes trial for killing Arbery.  The three men are white; Arbery was Black. All three are charged with interfering with Arbery's rights and attempted kidnapping.  The McMichaels are also charged with using, carrying and brandishing — and in Travis McMichael’s case, firing — a gun during and in relation to a crime of violence.

The federal charges are punishable by death, life in prison or a shorter prison sentence and a fine, according to the Federal Bureau of Investigations.  There is no parole in the federal system. Attorneys will begin selecting a jury from a wide pool of 43 counties across the Southern District of Georgia for that trial Feb. 7. The proceedings are set to take place in Glynn County.

The McMichaels and Bryan are also facing a civil lawsuit filed by Arbery’s mother. The wrongful death suit seeks $1 million in damages and also names former Brunswick Judicial Circuit District Attorney Jackie Johnson, former Glynn County Police Chief John Powell, Waycross Judicial Circuit District Attorney George Barnhill, and several Glynn County police officers.

January 7, 2022 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Race, Class, and Gender, State Sentencing Guidelines | Permalink | Comments (11)

Wednesday, January 05, 2022

Making the case, because "upper-class offenders ... might be even more reprehensible," for a severe sentence for Elizabeth Holmes

Former federal prosecutor Barbara McQuade has this notable MSNBC opinion piece that makes a full-throated argument for throwing the book ay former Theranos founder Elizabeth Holmes. I recommend the piece in full, and here are excerpts:

Some people steal money with guns.  Other people steal money with lies.  In a court of law, they’re all crooks. But not all crooks are treated the same by the justice system, a fact Elizabeth Holmes may be counting on when it comes to her sentencing....  White-collar criminals like Holmes may not get their hands dirty in the traditional sense, but their conduct is no less criminal than a stickup in an alley.  In fact, upper-class offenders like Holmes might be even more reprehensible; while street crime is often motivated by need, white-collar crime is usually motivated by greed....

The government quantified Holmes’ investor fraud, arguing it amounted to more than $140 million, a figure that will largely influence her eventual sentence. Federal sentencing guidelines consider a number of factors, including the amount of money involved in the scheme. Based on that number, as well as enhancements and the sophistication of her scheme, Holmes is likely looking at a sentence between 14 and 17 years.

Sentencing is a key inflection point for disparities in the criminal justice system.  But will a judge actually give Holmes a 15-year sentence? Holmes’ defense attorneys, like the attorneys of many criminals before her, will certainly try to argue that the sentencing guidelines in white-collar cases are simply “too high.”  This argument has worked with judges in the past, and high-priced attorneys know that judges can reduce the sentence considerably in a fraud case, as long as they articulate a good reason. (Unlike in criminal cases involving drugs or guns, for example, Holmes does not face a mandatory minimum sentence.)...

Perhaps because judges see offenders who look like them or who share similar backgrounds, they often bite on the argument that sentences for white-collar crimes should be something less than the guidelines range.  I have heard defense attorneys argue that their clients have already been punished enough through societal shame.  You can imagine one of these white-collar defendants lamenting to his lawyer that he can’t even walk through the country club dining room without getting a nasty look from a fellow member.

The other advantage white-collar defendants enjoy at sentencing is their ability to showcase a life of good deeds and letters of support.  An upper-income defendant can often point to service on boards or donations to charitable causes as mitigating factors.  Here again we find problematic disparities baked into the justice system: A low-income defendant lacks the resources to amass anything resembling that kind of track record.  Similarly, while a defendant like Holmes can likely find prominent people to write her letters of support, a defendant lacking her resources usually also lacks the connections needed to mount a similar campaign.

Another argument often made by defense attorneys in white-collar cases is that incarcerating their clients would be a waste of resources because they pose no threat to public safety.  This may be true, but the federal sentencing statute provides that the purpose of sentencing also includes deterrence and just punishment.  Deterrence is especially important in white-collar cases because these are crimes that are carefully planned. No one commits investor fraud in the heat of passion. If defendants who perpetrate massive fraud can get away with a slap on the wrist, then others will calculate that it is worth the gamble to do the same.  A strong sentence in white-collar cases can provide an important data point in that calculation. And fraud is not an inherently victimless crime.

As we think about ways to address racial and economic disparities in the criminal justice system, we should consider not only the disproportionately long sentences that are imposed on street criminals.  We should also consider the paltry ones that are meted out to the wealthy.  We will find out soon enough how Elizabeth Holmes’ sentence does or does not contribute to this pattern.

Because I do not think all that many federal defendants (even "wealthy" ones) actually do get "paltry" sentences — unless and until they cut a special deal with a federal prosecutor, see, e.g., Jeffrey Epstein's first pass — I think we generally need to worry a whole lot more about disproportionately long federal sentences than about problematically short ones.  Still, this commentary  does usefully highlights how advantaged defendants are often better able to present mitigating sentencing factors than disadvantages ones.  For me, that provides a reason for the system to work harder to help the disadvantaged, not a reason to slam the advantaged.  As I expressed in an article nearly 15 years ago, it always worries me when an emphasis on sentencing consistency  fuels "a leveling up dynamic"  that pushes sentences to be more consistently harsh.

Prior related post:

January 5, 2022 in Federal Sentencing Guidelines, Offender Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (8)

Monday, January 03, 2022

"Racial Attitudes and Criminal Justice Policy"

The title of this post is the title of this lengthy new paper soon to be published in the journal Crime and Justice.  The article is authored by Francis Cullen, Leah Butler and Amanda Graham, and here is its abstract:

Empirical research on public policy preferences must attend to Whites’ animus toward Blacks.  For a quarter-century, studies have consistently found that Kinder and Sanders’s four-item measure of “racial resentment” is a robust predictor of almost every social and criminal justice policy opinion.  Racial animus increases Whites’ opposition to social welfare policies that benefit Blacks and their support for punitive policies that disadvantage this “out-group.”  Any public opinion study that fails to include racial resentment risks omitted variable bias.  Despite the continuing salience of out-group animus, recent scholarship, especially in political science, has highlighted other racial attitudes that can influence public policy preferences.  Two developments are of particular importance.  First, Chudy showed the progressive impact of racial sympathy, a positive out-group attitude in which Whites are distressed by incidents of Blacks’ suffering (such as the killing of George Floyd).  Second, Jardina and others documented that Whites’ in-group racial attitudes, such as White identity/consciousness or white nationalism, have political consequences, reinforcing the effects of racial resentment.  As the United States becomes a majority-minority nation, diverse in-group and out-group racial attitudes are likely to play a central role in policies — including within criminal justice — that the public endorses.

January 3, 2022 in Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (6)

Tuesday, December 21, 2021

A deep dive into extreme sentences in the Pelican State

61bbccc672eb3.imageThe Marshall Project with the Times-Picayune and The Advocate has a new series of pieces exploring extreme sentences in Louisiana.  Here are headlines, links and a few passages:

"Her Baby Died After Hurricane Katrina. Was It a Crime?: An expansive definition of murder in Louisiana leaves many behind bars forever."

Louisiana sentences people to life without parole at one of the highest rates in the nation, data shows. Nearly 4,200 men and women are serving lifetime sentences in the state, for crimes that range from homicide and rape to rarer cases of repeat purse snatchings and child neglect, an investigation by The Marshall Project and The Times-Picayune | The Advocate found.

Second-degree murder charges, like the ones Woods and Scott were found guilty of, are a big driver of life-without-parole sentences. The state has long had the highest homicide rate in the nation. But Louisiana law contains an unusually sweeping definition of second-degree murder that includes even some accidental deaths, legal experts say. And despite the wide variations in circumstances that can produce a second-degree murder conviction — from a premeditated ambush to a getaway car accident — the sentence is the same: mandatory life without parole. Judges have almost no discretion.

"‘The Only Way We Get Out of There Is in a Pine Box’: Elderly, ailing and expensive, lifetime prisoners cost Louisiana taxpayers millions a year."

Total medical spending for state corrections eclipsed $100 million last year. That’s an increase of about 25% from 2015, according to state budget figures....

Now, one in six people incarcerated in Louisiana has been sentenced to die in state custody. Nearly 1,200 lifers are over 60. Those geriatric lifers make up nearly 5% of the state prison population.

"A life sentence for $20 of weed? Louisiana stands out for its unequal use of repeat offender laws."

The crime that landed Kevin O’Brien Allen a spot among the more than 4,100 Louisianans now serving life-without-parole sentences wasn’t a bloody one: He sold $20 in marijuana to a childhood friend....

Agents booked Allen on two counts of marijuana distribution, and prosecutors in District Attorney Schuyler Marvin’s office made him an offer: a 5-year sentence if he pleaded guilty. Allen, a father of two with a steady job but a handful of drug convictions, balked....

Louisiana law affords prosecutors wide discretion to increase a repeat offender’s sentence, up to life, and Marvin’s office drew on Allen’s past convictions: possession with intent to distribute marijuana in 2004, marijuana possession in 2007 and 2011, and methamphetamine possession in 2013.

Once invoked by a prosecutor, the habitual-offender law gives little leeway to judges. They can sentence a defendant to less time if they find the minimum is so far out of line that it defies “acceptable goals of punishment” or serves as “nothing more than the purposeful imposition of pain and suffering.” But courts have described those scenarios as “exceedingly rare.”...

Allen [received a life sentence and] now works in the prison kitchen, making juice for pennies a day, serving a sentence that ends when he dies. He’s among nearly 300 people serving life without parole in Louisiana prisons based on their status as habitual offenders, an analysis of recent state corrections data show. In 40% of those cases, the incarcerated person is locked up for life on a non-violent crime....

Corrections data show wide variances in how district attorneys around the state have used the habitual offender law. Nearly two-thirds of habitual lifers in the state were sentenced in one of four large parishes: Caddo, Orleans, St. Tammany or Jefferson, according to the data. The practice is somewhat less common in East Baton Rouge Parish, the state’s most populous.

Overall, Louisiana prosecutors have mostly aimed the law at Black defendants, like Allen. Black people make up 31% of Louisiana’s population, but 66% of its state prisoners; 73% of those serving life sentences; and 83% of those serving life as habitual offenders, corrections and census data show.

December 21, 2021 in Offender Characteristics, Offense Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences | Permalink | Comments (5)

Monday, December 13, 2021

Notable new report from For The People about early implementation of California’s Prosecutor-Initiated Resentencing law

I just learned about this notable new report from For The People under the title "Prosecutor-Initiated Resentencing: California’s Opportunity to Expand Justice and Repair Harm."  Here is part of the report's executive summary and key findings:

Until relatively recently, California was home to the largest prison system in the U.S. From 1975 to 2006, California’s prison population saw an 800% increase, from less than 20,000 people to 163,000, as the state built 22 of its 34 prison facilities.  Though California has enacted a series of reforms in the last decade, over 99,000 people remain incarcerated in the state’s prisons. Many of these people, disproportionately people of color, are serving excessively long sentences and could be released without posing a threat to public safety.

California’s Prosecutor-Initiated Resentencing (PIR) law (AB 2942), championed by For The People’s founder and passed in 2018, gives District Attorneys (DAs) a groundbreaking tool to directly and immediately redress the harm caused by mass incarceration and excessive sentences.  The law allows DAs to take a “second look” at past sentences that may no longer be in the interest of justice and ask the court to recall sentences and resentence people, resulting in their earlier release and reunification with family and community. 

This report looks at how specific policies led to mass incarceration in California, reviews the evidence in support of releasing people who no longer need to be incarcerated, examines the opportunity for PIR, and shares the real impacts of resentencing on people who have already been released. Finally, the report offers recommendations on implementation and opportunities for further reform.

This press release provides a partial accounting of "key report finding":

And this Washington Post opinion piece by Hillary Blout, a former prosecutor who founded For The People, makes the case for Prosecutor-Initiated Resentencing (PIR) under the headline "Thousands of incarcerated people deserve to come home. Here’s how prosecutors can help." Here are excerpts with links from the original:

Beyond California, For The People has supported the passage of three laws just like the original. Today, IllinoisOregon and Washington state have all passed laws giving prosecutors the ability to revisit old cases — and more states, including New YorkMinnesota and Massachusetts, are considering PIR bills.

As this movement spreads, many may wonder, “Is this safe?”  The myth goes that long sentences are crucial to increasing public safety.  But research has shown that the length of a sentence doesn’t actually have the effect of deterring more crime.  Research also shows that people age out of crime, and that recidivism rates decline with age and are the lowest among people who have served the longest sentences for serious crimes.

The PIR process includes a meticulous review of an incarcerated person’s history, rehabilitation and in-prison behavior, as well as robust reentry planning. It also considers mitigating factors from the person’s childhood and develops safeguards for the future.  This helps ensure that our communities will be protected and even benefit from the person’s return home.

Regular readers know I am a big fan of second-look sentencing mechanisms, and some may recall that many years ago I gave a talk arguing that prosecutors should be much more involved in reviewing past sentences, which got published as Encouraging (and Even Requiring) Prosecutors to Be Second-Look Sentencers, 19 Temple Political & Civil Rights L. Rev. 429 (2010).  So I am extremely pleased to see this idea in actual practice in a growing number of jurisdictions. 

December 13, 2021 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Saturday, December 11, 2021

"Protective State Policies and the Employment of Fathers with Criminal Records"

I just recently saw this recent article, which shares the title of this post, authored by Allison Dwyer Emory and published online via the journal Social Problems.  Here is its abstract:

A criminal record can be a serious impediment to securing stable employment, with negative implications for the economic stability of individuals and their families. State policies intended to address this issue have had mixed results, however.  Using panel data from the Fragile Families study merged with longitudinal data on state-level policies, this study investigates the association between criminal record based employment discrimination policies and the employment of men both with and without criminal records.  These state policies broadly regulate what kinds of records can be legally used for hiring and licensing decisions, but have received little attention in prior research.  Findings indicate that men with criminal records were less likely to be working if they lived in states with more policies in place to regulate the legal use of those records.  Consistent with research linking policies regulating access to records to racial discrimination, black men living in protective states reported this employment penalty even if they did not have criminal records themselves.  Thus, these policies, at best, may fail to disrupt entrenched employment disparities and, at worst, may exacerbate racial discrimination.

December 11, 2021 in Collateral consequences, Race, Class, and Gender, Reentry and community supervision | Permalink | Comments (0)

Tuesday, December 07, 2021

"'No idea whether he's Black, White, or purple': Colorblindness and cultural scripting in prosecution"

The title of this post is the title of this notable new research authored by R. R. Dunlea and just published in the journal Criminology.  Here is its abstract:

Prosecutors maintain immense power over criminal case processing.  Yet, they have not historically been a major target for reforms designed to foster equality and reduce racial disparity in criminal justice outcomes.  Using in-depth interviews with 47 line prosecutors, this study explores how prosecutors think about race in criminal justice, and what they believe their role should be in addressing racial disparities. 
Results show that prosecutors broadly embrace a colorblind approach to prosecution and argue that race should be disregarded in case processing.  Their support for colorblind prosecution is reinforced by race-neutral cultural scripts that can be linked to the social and operational realities of prosecutors’ work environment.  These findings suggest that efforts to improve fairness in case processing will be more effective if they are accompanied by widespread prosecutorial culture change.  Such efforts may also benefit from the consideration of structural features of the prosecutor's office that currently lead line agents to embrace colorblindness and reject a larger role in alleviating racial disparities.

December 7, 2021 in Race, Class, and Gender, Who Sentences | Permalink | Comments (3)

Monday, December 06, 2021

Noting differing perceptions of whether prison time is too long or too short or just right in the US

FT_21.11.17_TimeInPrison_1Over at the Pew Research Center, John Gramlich has this interesting new piece under the headline "U.S. public divided over whether people convicted of crimes spend too much or too little time in prison."  The graphic reprinted here captures the heart of the story, and here is some of the text (with links from the original):

Americans are closely divided over whether people convicted of crimes spend too much, too little or about the right amount of time in prison, with especially notable differences in views by party affiliation, ideology, race and ethnicity.

Overall, 28% of U.S. adults say people convicted of crimes spend too much time in prison, while 32% say they spend too little time and 37% say they spend about the right amount of time, according to a Pew Research Center survey of 10,221 adults conducted in July 2021.  The question was asked as part of a broader survey examining differences in Americans’ political attitudes and values across a range of topics.  The survey asked about prison time in a general way and did not address penalties for specific crime types.

Democrats and Democratic-leaning independents are much more likely to say people convicted of crimes spend too much time in prison than to say they spend too little time behind bars (41% vs. 21%).  The reverse is true among Republicans and Republican-leaning independents: 44% of Republicans say people convicted of crimes spend too little time in prison, while 14% say they spend too much time behind bars.  Around a third of Democrats and Democratic leaners (35%) and a slightly higher share of Republicans and GOP leaners (39%) say people convicted of crimes spend about the right amount of time in prison.

Views differ by ideology within each partisan group.  Liberal Democrats are more likely than conservative and moderate Democrats (54% vs. 30%) to say convicted people spend too much time in prison.  Conservative Republicans are more likely than moderate and liberal Republicans (49% vs. 35%) to say people convicted of crimes spend too little time in prison.

Democrats who describe their political views as very liberal and Republicans who describe their views as very conservative stand out even more.  Very liberal Democrats are much more likely than Democrats who describe their views as simply liberal (70% vs. 47%) to say convicted people spend too much time in prison.  And very conservative Republicans are more likely than Republicans who describe their views as simply conservative (56% vs. 47%) to say people convicted of crimes spend too little time in prison.

Attitudes about many aspects of the U.S. criminal justice system differ by race and ethnicity, as previous Pew Research Center surveys have shown, and a similar pattern appears in views of time spent in prison.  Black adults (40%) are more likely than White (26%), Asian (26%) and Hispanic adults (25%) to say people convicted of crimes spend too much time in prison.  Conversely, White adults (36%) are more likely than Hispanic (28%) and Black adults (17%) to believe that convicted people spend too little time behind bars.  Around a third of Asian adults (34%) also say convicted people do not spend enough time in prison, but their views are not statistically different from those of White and Hispanic adults.

Among Democrats, similar shares of Black and White adults say prisoners spend too much time behind bars, even as Black and White Democrats express different views on some other survey questions related to criminal justice.  Black Democrats, for example, are modestly more likely than White Democrats to favor increased funding for police in their area, according to a September Pew Research Center survey.

December 6, 2021 in Elections and sentencing issues in political debates, Race, Class, and Gender, Who Sentences | Permalink | Comments (7)

Monday, November 29, 2021

"The population prevalence of solitary confinement"

Th title of this post is the title of this notable new research article in the new issue of the journal Science Advances and authored by Hannah Pullen-Blasnik, Jessica T. Simes and Bruce Western.  Here is its abstract:

Solitary confinement is a severe form of incarceration closely associated with long-lasting psychological harm and poor post-release outcomes.  Estimating the population prevalence, we find that 11% of all black men in Pennsylvania, born 1986 to 1989, were incarcerated in solitary confinement by age 32.  Reflecting large racial disparities, the population prevalence is only 3.4% for Latinos and 1.4% for white men.  About 9% of black men in the state cohort were held in solitary for more than 15 consecutive days, violating the United Nations standards for minimum treatment of incarcerated people.  Nearly 1 in 100 black men experienced solitary for a year or longer by age 32.  Racial disparities are similar for women, but rates are lower.  A decomposition shows that black men’s high risk of solitary confinement stems primarily from their high imprisonment rate.  Findings suggest that harsh conditions of U.S. incarceration have population-level effects on black men’s well-being.

November 29, 2021 in Data on sentencing, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (3)

Wednesday, November 24, 2021

Sentencing basics for defendants convicted of murdering Ahmaud Arbery

This afternoon brought a jury verdict in the closely watched case involving three men accused of murdering Ahmaud Arbery.  This AP story provides the context and the sentencing possibilities and other particulars now to follow:

A nine-count indictment charged all three men with one count of malice murder, four counts of felony murder, two counts of aggravated assault, one count of false imprisonment and one count of criminal attempt to commit a felony, in this case false imprisonment.

Travis McMichael was convicted of all nine charges. Greg McMichael was convicted of all charges except malice murder.  [William] Bryan was convicted of two counts of felony murder, one count of aggravated assault, one count of false imprisonment and one count of criminal attempt to commit a felony.

Malice and felony murder convictions both carry a minimum penalty of life in prison. The judge decides whether that comes with or without the possibility of parole.  Even if the possibility of parole is granted, a person convicted of murder must serve 30 years before becoming eligible. Multiple murder convictions are merged for the purposes of sentencing.

Murder can also be punishable by death in Georgia if the killing meets certain criteria and the prosecutor chooses to seek the death penalty.  Prosecutors in this case did not.

Each count of aggravated assault carries a prison term of at least one year but not more than 20 years. False imprisonment is punishable by a sentence of one to 10 years in prison....

The McMichaels and Bryan still face federal charges. Months before the three stood trial on state murder charges, a federal grand jury in April indicted them on hate crimes charges.  It’s an entirely separate case that’s not affected by the state trial’s outcome.

U.S. District Court Judge Lisa Godbey Wood has scheduled jury selection in the federal trial to start Feb. 7.  All three men are charged with one count of interference with civil rights and attempted kidnapping.  The McMichaels were also charged with using, carrying and brandishing a firearm during a crime of violence.  The federal indictment says the men targeted Arbery because he was Black.

November 24, 2021 in Offense Characteristics, Race, Class, and Gender | Permalink | Comments (14)

Sunday, November 14, 2021

"Racial, Gender Disparities and Prosecutorial Discretion: Evidence from Blakely v. Washington"

The title of this post is the title of this paper I just recently saw on SSRN that is authored by Andy Yuan and Spencer Cooper. Here is its abstract:

We investigate the causal effects of restricting prosecutorial discretion on racial and gender disparities.  Blakely v.Washington, 542 U.S. 296 (2004) exogenously introduced a significant constraint on North Carolina state prosecutors' discretion in seeking sentence enhancements by raising their burdens of proof from "preponderance of evidence" to "beyond a reasonable doubt."   Through a regression discontinuity design, we find striking evidence that restricting prosecutorial discretion eliminated the entire preexisting gender gap of men being 28% more likely to receive sentence enhancements than women.  However, we find no evidence suggesting a racial gap of sentence enhancements both pre and post Blakely.

November 14, 2021 in Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Friday, November 12, 2021

"Two Strikes and You’re in Prison Forever: Why Florida leads the nation in people serving life without chance of parole."

The title of this post is the headline of this important new reporting (and accounting) from the Marshall Project. I recommend the full piece, and here is a taste:

The number of people serving life-without-parole sentences has soared across the country in the last two decades, rising to 56,000, according to The Sentencing Project, an advocacy group.  Some people received these penalties as an alternative to capital punishment, which has fallen out of favor with many prosecutors and the public.  The number of death sentences dwindled to 18 last year, and only 2,500 people are now on death row, down from almost 3,600 two decades ago.

But there’s another reason for the increase: A handful of states have embraced life-without-parole sentences to punish “repeat offenders” — even if their crimes didn’t cause physical injury, an investigation by The Marshall Project and The Tampa Bay Times found.

Washington passed the first “three strikes” law in 1993, allowing prosecutors to give life sentences to people convicted even of nonviolent felonies if they met the criteria for “persistent offenders.”  At least two dozen states followed suit, including Florida in 1995.  In many states, people sentenced to life used to become eligible for parole after 15 years. But Florida and others virtually ended parole a generation ago, so that life sentences became permanent.

Today, Florida has more than 13,600 people serving life without parole, far more than any other state and almost a quarter of the total nationwide.  Though this sentence is widely seen as an alternative to the death penalty, which is used in murder cases, 44% of the people serving it in Florida were not convicted of that crime, according to our analysis of state data.

Part of the reason Florida’s numbers are so high is that it went further than any other state in 1997 by passing an unusual “two strikes” law known as the Prison Releasee Reoffender Act. The law directs prosecutors to seek the maximum sentence for someone who commits a felony within three years of leaving prison, which often means a lifetime behind bars. The law also takes sentencing discretion away from judges.  About 2,100 of the state’s permanent lifers, or about 15%, are in prison because of the law, our investigation found.  The crimes that netted life without parole included robbing a church of a laptop, holding up motel clerks for small amounts of cash and stealing a television while waving a knife....

The two-strikes punishment has been disproportionately applied to Black men, who account for almost 75% of those serving time because of the 1997 law, our analysis found; about 55% of all prisoners in the state are Black. Their most common charge was armed robbery, not homicide. Housing its life-without-parole population, including those locked up under the two-strikes law, cost Florida at least $330 million last year, according to our analysis of state data.

“This is an incredibly punitive law that is totally arbitrary,” said Jeff Brandes, a Republican who represents St. Petersburg in the Florida Senate and is trying to repeal the two-strikes law, so far without much support from his colleagues. He said Florida wastes too much taxpayer money locking people up forever on burglary, robbery and theft. “A sentence that is too long is just as unjust as a sentence that is too short,” he said.

The Marshall Project has this companion piece headlined "He Got a Life Sentence When He Was 22 — For Robbery: Black men are most affected by Florida’s two-strikes law." Here is a snippet:

The two-strike punishment has been disproportionately applied to Black men, an analysis of state data by The Marshall Project and Tampa Bay Times found. Among all prisoners serving life in Florida, 54% are Black; but among those serving life with enhancements like two strikes, 74% are Black.

In some counties, the racial disparities regarding sentence enhancements were glaring, the analysis found: In Leon County, home to the state capital of Tallahassee, among people serving life sentences for crimes committed within three years of release from prison, 96 of 107 were Black.  In Pinellas County, where Mackeroy grew up, 75% of prisoners serving life with two-strikes sentences are Black.

November 12, 2021 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Wednesday, November 03, 2021

"The Gladue Analysis: Shedding Light on Appropriate Procedures and Sanctions"

The title of this post is the title of this interesting-looking new paper about an interesting aspect of Canadian sentencing practice. This piece was authored by Marie-Andrée Denis-Boileau, is available via SSRN, and here is its abstract:

This paper intends to give practical tools to legal actors to better implement the second part of the s 718.2(e) of the Criminal Code analysis for sentencing Indigenous people, as first laid out in the Gladue case of the Supreme Court of Canada.  Following this, when sentencing an Indigenous person, judges have to pay attention to “the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection”.  Drawing from case law, research and the work of Commissions and Public Inquiries in Canada, the author intends to provide practical tools to legal actors to support them in fully engaging with it.  The paper identifies and describes three elements that must be considered by courts in this analysis: (1) the community’s perspectives, needs and alternatives to incarceration, (2) The Aboriginal Perspective, which was interpreted as including the "laws, practices, customs and traditions of the group” and (3) Culturally sensitive, appropriate and responsive sentences addressing the “underlying cause of the criminal conduct”. Its main focus is on Indigenous law and providing practical and clear ways for judges and legal actors to consider it.

The content of this paper was first developed for Legal Aid BC’s Best Practices Guide for Writing Gladue Reports and Understanding Gladue Principles, with the intent to support Gladue writers in providing more information to courts with regard to this part of the Gladue analysis and support anyone who is interested in better understanding Gladue principles.  This paper should support legal actors in better engaging with it.

November 3, 2021 in Procedure and Proof at Sentencing, Race, Class, and Gender, Sentencing around the world | Permalink | Comments (0)

Wednesday, October 27, 2021

Is it foolish to hope, after now 35 years, that Congress will soon fix the crack-powder federal sentencing disparity?

My twitter feed this morning was full with folks noting that today marks officially a full 35 years(!) since Congress enacted the notorious 100-1 crack/powder cocaine ratio disparity.  The full story of 35 years of federal crack sentencing injustice and dysfunction cannot be recounted in a blog post.  But a few highlights document that a complete fix is long in the making, long overdue, and cannot come to soon. 

The US Sentencing Commission sent a report to Congress in 1995  — 26 years ago! —  highlight the myriad flaws with the crack-powder sentence scheme and proposed guidelines changes to partially fix the 100:1 crack/powder disparity by adopting a 1:1 quantity ratio at the powder cocaine level.  But Congress passed, and President Bill Clinton signed, legislation rejecting the USSC’s proposed guideline changes (see basics here and here), thereby ensuring decades of disproportionately severe crack sentences and extreme racial inequities in cocaine offense punishments.

Barack Obama gave a 2007 campaign speech assailing the crack/powder disparity, and in 2009 the Obama Justice Department advocated for "Congress to completely eliminate the crack/powder disparity."  Despite strong DOJ advocacy for a 1:1 ratio in April 2009, it still took Congress more than a year to enact only a partial reduction in crack sentences rather than the parity advocated by the USSC in 1995 and by DOJ in 2009.  Specifically, the Fair Sentencing Act enshrined a new 18:1 crack/powder quantity disparity ratio into federal drug sentencing statutes and guidelines, and even this modest reform did not become fully retroactive until eight years later with the 2018 FIRST STEP Act.

Excitingly, as noted here, the US House voted 361-66 last month to pass the EQUAL Act to end, finally and completely, the statutory disparity between powder and crack cocaine sentences.  In this new Hill commentary, Aamra Ahmad And Jeremiah Mosteller make the case that Congress should finally get this long overdue reform to the finish line.  Here is the start and end of their piece:

Thirty-five years ago today, while the country was still reeling from the tragic death of Len Bias — a University of Maryland basketball star who, just days after being drafted by the Boston Celtics, died from a drug overdose — Congress passed and President Reagan signed into law the Anti-Drug Abuse Act.  Assuming that the drug that killed Len was crack, Congress drafted a law that would impose harsher penalties on crack offenses.  It would impose the same mandatory prison sentence for five grams of crack cocaine as 500 grams of powder cocaine.  Even after it became known that the drug that killed Len was powder cocaine, not crack, the narrative had taken off that crack is more dangerous than powder, and Congress established the 100-to-1 disparity between crack and powder cocaine in federal law.

Over the years, this sentencing disparity has become emblematic of both the ineffectiveness of reactionary criminal justice policy and the racial disparities existing in our criminal justice system....

The EQUAL Act recently passed the House of Representatives with an overwhelming bipartisan vote of 361 to 66.  It is rare to see Louie Gohmert (R-Texas), a former Texas judge and nationally-recognized staunch conservative, agree with Hakeem Jeffries (D-N.Y.), one of the leading progressive voices in the leadership of the Democratic Party, on criminal justice reform, but that is just what happened on the House floor when they both spoke in support of the EQUAL Act.  It is now up to the Senate to pass this long-overdue legislation and send the EQUAL Act to President Biden’s desk for his signature.  Senators Cory Booker (D-N.J.), Dick Durbin (D-Ill.), Rob Portman (R-Ohio), Thom Tillis (R-N.C.), Rand Paul (R-Ky.), and Patrick Leahy (D-Vt.), and Lindsey Graham (R-S.C.) are the sponsors of the Senate companion legislation (S. 79) and have taken the lead in building a coalition to pass this legislation during the 117th Congress.  The time is now for the Senate to take action and rectify this long-standing injustice in our criminal legal system.

A few prior recent related posts:

October 27, 2021 in Drug Offense Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (2)

Monday, October 18, 2021

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

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

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

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

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

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

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

Prior related posts:

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

Sunday, October 17, 2021

New special issue of Science explores "Criminal Injustice: Mass Incarceration in the United States"

Download (20)This new issue of Science includes a special section of articles exploring the deep roots and deep consequences of mass incarceration in the United States.  This introduction, titled "An outlier of injustice," sets up what follows this way:

For much of the 20th century, the incarceration rate in the US was relatively stable.  But beginning in the early 1970s, several decades of “tough on crime” policies contributed to a dramatic rise in incarceration.  Today, despite recent declines, the US incarceration rate remains a global outlier.  This system of mass incarceration is particularly hostile to Black Americans, who have been imprisoned in stunningly disproportionate numbers. 
Amid burgeoning interest in scholarship on criminal justice, this special issue examines social science research on the state of mass incarceration in the US: its origin and expansion, its far-reaching effects on families and communities, and why the public tolerates and encourages it.  Tracing the system’s roots back to slavery, researchers examine the interplay between incarceration, labor demand, and racial domination in the labor market.  As criminal justice infrastructure has grown more costly and vast, the system has extracted wealth from poor communities that it preys upon to fiscally survive. 
This ever-expanding web of incarceration entangles extraordinary numbers of people of all racial groups, with close to half of all Americans having a spouse or coparent, parent, sibling, or child that is or has been incarcerated.  To support such a system, many Americans psychologically deny that structural racism is at the heart of criminal justice.  Government responses to social justice protests often ignore root social causes and possible remedies and instead rely on policing.  Also, law enforcement increasingly draws upon commercial technologies that challenge public oversight and democratic policing.  Research on these topics is critical to reveal how we got here, as well as to inform and inspire change.

Here are links to the articles that follow, all of which are worth checking out:

"Policing social unrest and collective violence" by Elizabeth Hinton

"The corporate shadow in democratic policing" by Elizabeth E. Joh

"Assessing mass incarceration’s effects on families" by Hedwig Lee and Christopher Wildeman

"Exclusion and exploitation: The incarceration of Black Americans from slavery to the present" by Christopher Muller

"Toward an understanding of structural racism: Implications for criminal justice" by Julian M. Rucker and Jennifer A. Richeson

"The predatory dimension of criminal justice" by Joshua Page and Joe Soss

October 17, 2021 in Prisons and prisoners, Race, Class, and Gender, Recommended reading, Scope of Imprisonment | Permalink | Comments (1)

"Doing Justice in Sentencing"

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

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

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

Thursday, October 14, 2021

"New York State’s New Death Penalty: The Death Toll of Mass Incarceration in a Post-Execution Era"

The title of this post is the title of this interesting new report from the the Center for Justice at Columbia University which reinforces my sense that we ought to give a lot more attention to functional death sentences (which are relatively frequent) than to formal death sentences (which are relatively rare). Here is the report's introduction (with emphasis in the original and notes removed):

New York State was once an international outlier in its use of capital punishment.  Prior to 1972, when the US Supreme Court outlawed the death penalty, New York ranked second in most executions of any state in the country, executing 1130 people over a 364 year period.  Yet, abolishing the death penalty did not slow death behind bars.  Since 1976 — when the state began compiling data on deaths in custody — 7,504 people died while in the custody of the New York State Department of Corrections and Community Supervision (DOCCS).  This is seven times the number of deaths of those who were executed by the state.  Those who have died in custody over the last 45 years have largely been Black people, and particularly in the last decade, older people and people serving sentences of 15 years or more.  Increasingly, advocates and lawmakers have come to call this devastating reality “death by incarceration,” or “death by incarceration sentences” that ensure that thousands will die in prison and/or face a Parole Board that denies release to the majority of people who appear before it, and disproportionately denies release to Black New Yorkers.

This report compiles and analyzes data on in-custody deaths in New York State between 1976 and 2020 and offers policy recommendations for curtailing the number of deaths behind bars.  Without policy intervention, thousands of currently incarcerated New Yorkers are at risk of dying behind bars in the years and decades to come. 

All lives lost in the New York State correctional system raise questions about the morality and humanity of the state and its governance.  The large proportion of deaths of incarcerated Black New Yorkers highlight the racism of criminal justice policy in the state, and how the need for racial justice is a matter of life and death.  The disproportionate deaths of older adults serving long sentences highlight important questions about the state’s investments in public and community safety.  Incarcerated adults aged 55 and older are the least likely to commit a new crime across all age groups, and yet are kept in prison due to a lack of meaningful opportunities for release and repeated parole denials. Importantly, death by incarceration sentences and repeated parole denials ignore both the reality and possibility of redemption and transformation for people in prison. Older adults in prison are often leaders, mentors and stewards of the community. Of those who are released from prison, many continue their service and leadership in their communities, mentoring young people, providing reentry services for others released from custody, and intervening to prevent and reduce violence.

This report concludes that New York State must end its new de facto death penalty and offers recommendations towards this goal, including policies with large community and legislative support.

Key Findings 

  • More people have died in NY State custody in the last decade than the total of number of people executed in the 364 years New York State had the death penalty. 1,278 people died in NY State custody in the last decade compared to 1,130 who were executed in NY State between 1608 and 1972.
  • Today, more than 1 in 2 people who die in NY State custody are older adults, compared to roughly 1 in 10 at the beginning of the era of mass incarceration. 
  • Every three days someone dies inside a NYS prison, compared to every 12 days in 1976. 
  • In 2018, Black people accounted for 45% of all deaths in DOCCS custody, despite only making up 14% of all deaths of New York State residents. 
  • People who have already served 15 years in custody account for 9 times more of the total deaths behind bars today than they did in the 1980s, the first full decade of available data. 
  • 40% of all deaths behind bars since 1976 of people 55 and older happened in the last ten years. 
  • In the most recent decade, roughly 1 in 3 people who died behind bars had served at least 15 years, compared to 1 in 29 in the 1980s.

October 14, 2021 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (5)

Wednesday, October 13, 2021

"The Color of Justice: Racial and Ethnic Disparity in State Prisons"

The title of this post is the title of this new publication by The Sentencing Project authored by Ashley Nellis.  Here are parts of the report's overview:

This report details our observations of staggering disparities among Black and Latinx people imprisoned in the United States given their overall representation in the general population.  The latest available data regarding people sentenced to state prison reveal that Black Americans are imprisoned at a rate that is roughly five times the rate of white Americans.  During the present era of criminal justice reform, not enough emphasis has been focused on ending racial and ethnic disparities systemwide.

Going to prison is a major life-altering event that creates obstacles to building stable lives in the community, such as gaining employment and finding stable and safe housing after release. Imprisonment also reduces lifetime earnings and negatively affects life outcomes among children of incarcerated parents.

These are individual-level consequences of imprisonment but there are societal level consequences as well: high levels of imprisonment in communities cause high crime rates and neighborhood deterioration, thus fueling greater disparities.  This cycle both individually and societally is felt disproportionately by people who are Black. It is clear that the outcome of mass incarceration today has not occurred by happenstance but has been designed through policies created by a dominant white culture that insists on suppression of others....

Truly meaningful reforms to the criminal justice system cannot be accomplished without acknowledgement of its racist underpinnings. Immediate and focused attention on the causes and consequences of racial disparities is required in order to eliminate them.  True progress towards a racially just system requires an understanding of the variation in racial and ethnic inequities in imprisonment across states and the policies and day-to-day practices that drive these inequities.

KEY FINDINGS

  • Black Americans are incarcerated in state prisons at nearly 5 times the rate of white Americans.
  • Nationally, one in 81 Black adults per 100,000 in the U.S. is serving time in state prison.  Wisconsin leads the nation in Black imprisonment rates; one of every 36 Black Wisconsinites is in prison.
  • In 12 states, more than half the prison population is Black: Alabama, Delaware, Georgia, Illinois, Louisiana, Maryland, Michigan, Mississippi, New Jersey, North Carolina, South Carolina, and Virginia.
  • Seven states maintain a Black/white disparity larger than 9 to 1: California, Connecticut, Iowa, Maine, Minnesota, New Jersey, and Wisconsin.
  • Latinx individuals are incarcerated in state prisons at a rate that is 1.3 times the incarceration rate of whites.  Ethnic disparities are highest in Massachusetts, which reports an ethnic differential of 4.1:1.

RECOMMENDATIONS

1. Eliminate mandatory sentences for all crimes.  Mandatory minimum sentences, habitual offender laws, and mandatory transfer of juveniles to the adult criminal system give prosecutors too much authority while limiting the discretion of impartial judges.  These policies contributed to a substantial increase in sentence length and time served in prison, disproportionately imposing unduly harsh sentences on Black and Latinx individuals.

2. Require prospective and retroactive racial impact statements for all criminal statutes.  The Sentencing Project urges states to adopt forecasting estimates that will calculate the impact of proposed crime legislation on different populations in order to minimize or eliminate the racially disparate impacts of certain laws and policies.  Several states have passed “racial impact statement” laws.  To undo the racial and ethnic disparity resulting from decades of tough-on-crime policies, however, states should also repeal existing racially biased laws and policies.  The impact of racial impact laws will be modest at best if they remain only forward looking.

3. Decriminalize low-level drug offenses.  Discontinue arrest and prosecutions for low-level drug offenses which often lead to the accumulation of prior convictions which accumulate disproportionately in communities of color.  These convictions generally drive further and deeper involvement in the criminal legal system.

October 13, 2021 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1)

Sunday, October 10, 2021

Prison Policy Initiative briefing highlights disproportionate role of Native peoples in US criminal justice systems

Incarceration_byrace_2019The Prison Policy Initiative has this notable new briefing authored by Leah Wang titled "The U.S. criminal justice system disproportionately hurts Native people: the data, visualized."  Here is part of its text:

This Monday is Indigenous Peoples’ Day, a holiday dedicated to Native American people, their rich histories, and their cultures. Our way of observing the holiday: sending a reminder that Native people are harmed in unique ways by the U.S. criminal justice system.  We offer a roundup of what we know about Native people (those identified by the Census Bureau as American Indian/Alaska Native) who are impacted by prisons, jails, and police, and about the persistent gaps in data collection and disaggregation that hide this layer of racial and ethnic disparity.

The U.S. incarcerates a growing number of Native people, and what little data exist show overrepresentation In 2019, the latest year for which we have data, there were over 10,000 Native people locked up in local jails.  Although this population has fluctuated over the past 10 years, the Native jail population is up a shocking 85% since 2000.  And these figures don’t even include those held in “Indian country jails,” which are located on tribal lands: The number of people in Indian country jails increased by 61% between 2000 and 2018.  Meanwhile, the total population of Native people living on tribal lands has actually decreased slightly over the same time period, leaving us to conclude that we are criminalizing Native people at ever-increasing rates.

Government data publications breaking down incarcerated populations by race or ethnicity often omit Native people, or obscure them unhelpfully in a meaningless “Other” category, perhaps because they make up a relatively small share of the total population.  The latest incarceration data, however, shows that American Indian and Alaska Native people have high rates of incarceration in both jails and prisons as compared with other racial and ethnic groups.  In jails, Native people had more than double the incarceration rate of white people, and in prisons this disparity was even greater.

Native people made up 2.1% of all federally incarcerated people in 2019, larger than their share of the total U.S. population, which was less than one percent.  Similarly, Native people made up about 2.3% of people on federal community supervision in mid-2018.  The reach of the federal justice system into tribal territory is complex: State law often does not apply, and many serious crimes can only be prosecuted at the federal level, where sentences can be harsher than they would be at the state level.  This confusing network of jurisdiction sweeps Native people up into federal correctional control in ways that don’t apply to other racial and ethnic groups.

Native women are particularly overrepresented in the incarcerated population: They made up 2.5% of women in prisons and jails in 2010, the most recent year for which we have this data (until the 2020 Census data is published); that year, Native women were just 0.7% of the total U.S. female population.  Their overincarceration is another maddening aspect of our nation’s contributions to human rights crises facing Native women, in addition to Missing and Murdered Indigenous Women (MMIW) and high rates of sexual and other violent victimization.

October 10, 2021 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

Wednesday, October 06, 2021

"Speeding While Black: Black Motorists Face More-Serious Charges for Excessive Speeding than White Motorists Do"

The title of this post is the title of this short new research brief from RAND, which presents these key findings: 

In 25 U.S. states, motorists accused of excessive speeding can face either a criminal misdemeanor or a traffic infraction, and the charge is at the discretion of law enforcement officers and the courts.  Using data on speeding violations in 18 Virginia counties over a nine-year period, researchers found large racial disparities in who was convicted of a misdemeanor.

Black motorists cited for speeding were almost twice as likely as White motorists to be convicted of a misdemeanor when their speed was in the range that qualified for the more serious charge.

Whom Officers Charged Explained 55% of the Disparity: Among cited motorists speeding at an excessive level, Black motorists were more likely than White motorists to be charged with a misdemeanor instead of an infraction....

Whom Courts Convicted Explained 45% of the Disparity: Among motorists charged with a misdemeanor by law enforcement, Black motorists were more likely than White motorists to be convicted of a misdemeanor by the court.

The full 73-page RAND research report on which this brief is based, titled "Racial Disparities in Misdemeanor Speeding Convictions," is available at this link. Here is part of its initial summary:

Overall Racial Disparity

Among motorists cited for speeding in a range that qualified for a misdemeanor, Black motorists were almost twice as likely as White motorists to be convicted of a misdemeanor. White motorists were convicted of a misdemeanor 19 percent of the time, and Black motorists were convicted 36 percent of the time. 

Significant racial disparities were present at both the law enforcement and the court stages.  We found that 55 percent of the overall racial disparity in conviction rates could be explained by what happened at the law enforcement stage (i.e., by whom law enforcement charged with a misdemeanor), and the remaining 45 percent of the disparity was explained by what happened at the court stage (i.e., by whom the court convicted of a misdemeanor).

Racial Disparities at the Law Enforcement Stage

The county in which a motorist was cited explained almost half of the racial disparity in whom law enforcement charged with a misdemeanor.  Further analyses indicated that location explained such a substantial proportion of the overall disparity at this stage because law enforcement officers offered fewer charge discounts overall in the counties in which Black motorists made up a larger percentage of cited motorists.  We were not able to determine whether there was a race-neutral reason for why enforcement was stricter in these counties.

Almost half of the racial disparity in whom law enforcement charged with a misdemeanor was unexplained by any of the case characteristics that we could control for.  This remaining racial disparity might reflect either disparate treatment by law enforcement officers or underlying racial differences in omitted variables.

Racial Disparities at the Court Stage

About four-fifths of the racial disparity in whom the court convicted of a misdemeanor could be explained by observable case characteristics. In our study, one of the primary reasons that racial disparities occurred at the court stage was because Black motorists were significantly less likely than White motorists to attend the required court appearance to adjudicate a misdemeanor charge.  Although there are several potential policy options to address this — including text message reminders or the adjudication of cases through online platforms — the optimal option will depend on first understanding why this racial difference in court appearance rates occurs.  Another key reason that Black motorists were more likely to be convicted of a misdemeanor at the court stage was that they were less likely to have a lawyer present at their court appearance.  Having an attorney present significantly lowered the likelihood that a motorist was convicted of a misdemeanor, but in Virginia, attorneys are not provided by the court for these violations and must be retained at the motorist’s expense.

October 6, 2021 in Fines, Restitution and Other Economic Sanctions, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (2)

Wednesday, September 29, 2021

"Toward an Optimal Decarceration Strategy"

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

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

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

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

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

Tuesday, September 28, 2021

US House votes 361-66 to pass today the EQUAL Act to end disparity between powder and crack cocaine sentences

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

Barack Obama at Howard University gave a 2007 campaign speech — exactly 14 years ago today — assailing the crack/powder disparity, and in 2009 the Obama Justice Department advocated for "Congress to completely eliminate the crack/powder disparity."   Sadly, despite strong DOJ advocacy for a 1:1 ratio in April 2009, it still took Congress more than a year to enact any reform to the 100:1 crack/powder cocaine disparity, and then it only could muster a partial reduction in crack sentences rather than the parity advocated by the USSC in 1995 and by DOJ in 2009.  Specifically, the Fair Sentencing Act enshrined a new 18:1 crack/powder quantity disparity ratio into federal drug sentencing statutes and guidelines, and even this modest reform did not become fully retroactive until eight years later with the FIRST STEP Act.

But in early fall 2021, and despite the deep divisions on so many political issues, the vast majority of US Representatives spoke together today to say that federal law should no longer sentence crack and powder cocaine offense differently.  This Hill article explains:

The House passed legislation on Tuesday that would eliminate the federal disparity in prison sentences for crack and powder cocaine offenses, in an effort to enact criminal justice reform on a bipartisan basis. The bill, which lawmakers passed 361-66, is meant to address a gap that its proponents say has largely fallen on Black people and other people of color.

The House passed the measure handily, but the vote divided Republicans. A majority of House Republicans voted for the bill with all Democrats, but the 66 votes in opposition all came from the GOP....

The Anti-Drug Abuse Act of 1986, a law signed by then-President Reagan as part of the “War on Drugs,” established a five-year minimum sentence for possessing at least five grams of crack, while an individual would have to possess at least 500 grams of powder cocaine to receive the same sentence. A 2010 law called the Fair Sentencing Act reduced the cocaine sentencing disparity for pending and future cases, but did not fully eliminate it. And a criminal justice reform bill enacted in 2018 under former President Trump allowed people convicted prior to passage of the 2010 law to seek resentencing.

Under the bill the House passed on Tuesday, defendants who were previously convicted for crack cocaine offenses would also be allowed to petition for sentence reductions.

Rep. Louie Gohmert (R-Texas), a former judge, said the measure was a “a great start toward getting the right thing done” as he recalled dealing with cocaine cases. “Something I thought Texas did right was have a up to 12 months substance abuse felony punishment facility. Some thought it was strange that a strong conservative like myself used that as much as I did. But I saw this is so addictive, it needs a length of time to help people to change their lives for such a time that they've got a better chance of making it out, understanding just how addictive those substances are,” Gohmert said during House floor debate.

The legislation now heads to the Senate, where at least 10 Republicans would have to join with all Democrats to advance it in the evenly divided chamber. A companion bill introduced by Sen. Cory Booker (D-N.J.) currently has five cosponsors, including three Republicans: Sen. Rob Portman (Ohio), Rand Paul (Ky.) and Thom Tillis (N.C.).

I lack knowledge about the ways and means for this kind of bill to get a vote in the Senate soon, but I feel pretty confident that it would get similarly strong support in that cambers if and whenever a vote goes forward. I hope such a vote goes forward soon, since we have all waited more than long enough for more sensible sentencing in this arena.

A few prior recent related posts:

September 28, 2021 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Thursday, September 23, 2021

Notable new report spotlights onerous nature of electronic monitoring in US

This new NBC News piece, headlined "Other than prison, electronic monitoring is 'the most restrictive form' of control, research finds" report on this interesting new report from folks at George Washington University Law School, titled "Electronic Prisons: The Operation of Ankle Monitoring in the Criminal Legal System."  Here are excerpts from the press piece:

In the past 18 months, as the judicial system has increasingly used electronic monitoring instead of prisons to monitor inmates through the coronavirus pandemic, newly released data confirm what activists and advocates have long argued: Ankle monitors are onerous, and they often subject wearers to vague rules, like avoiding people of “disreputable character.”  The ankle monitoring business, the research found, is also dominated by four profit-seeking companies, and it ultimately could drive more people back to prison.

The new, comprehensive collection of hundreds of electronic monitoring-related rules, policies and contracts, obtained through public records requests across 44 states, demonstrates that four companies that make millions of dollars a year account for 64 percent of the contracts examined in the study.  The companies — Attenti, BI Inc., Satellite Tracking of People LLC and Sentinel Offender Services LLC, according to the report — also keep location data indefinitely, even after monitoring is completed, which is within the law.  Governments also often require family members or employers to act as agents of the government and report potential violations, putting them in an awkward position in which they must be both supportive and supervisory.

Crucially, wearers must pay both one-time and ongoing fees for the monitors, which can be $25 to over $8,000 a year.  The report argues that such costs “undermine financial security when it is needed most.”  By comparison, the Justice Department’s Bureau of Prisons said in 2018 that it costs just under $100 per day to incarcerate a federal inmate, or over $36,000 a year....

“This is a form of incarceration that happens outside of prison walls,” said Kate Weisburd, an associate professor of law at George Washington University, who led a team of 10 law students that filed and analyzed the trove of documents . “It’s always intended to be a positive alternative to incarceration.  But based on what we found, it’s doing the opposite.  More rules and more surveillance generally leads to higher incarceration.”...

Put another way, people on monitors are subject to a vast number of government rules, which “makes compliance difficult,” according to the report.  Some of the rules are quite vague.  For example, the Alabama Bureau of Pardons and Parole mandates that wearers “shall abandon evil associates and ways,” while the New Mexico Corrections Department says parolees must “maintain acceptable behavior.”...

Weisburd’s research found that because the results are open to interpretation and wearers can be hit with “technical violations” of the rules, “people are more likely to be reincarcerated for minor infractions that previously would have been invisible and ignored.”  In most cases, electronic monitoring is coupled with a form of house arrest — wearers must stay at or near their homes for a certain amount of time. They cannot leave without permission in advance.  But according to the policies and contracts that Weisburd and her team obtained, most agencies do not clearly explain how far in advance such permission must be sought. “Basically, every record we looked at had a negative impact, and by every measure it undermines people’s ability to survive outside of prison,” she said. “Just having to comply with the sheer number of rules, vague and broad rules, it means people are getting dinged more easily.”...

The most recent data from the Pew Charitable Trust, released in 2016, found that about 131,000 people were on monitors during a single day.   Weisburd and her team say in the report that “it is likely that the numbers are higher considering the pressure to release people from incarceration because of the pandemic.”...  The frequency with which such monitoring is assigned varies wildly across the country.  For example, Weisburd’s research shows that over 11,000 people who are on probation are also on monitors in Marion County, Indiana, alone, while the entire state of Florida has less than half that number, at just over 5,400.

Here is the introduction of the 54-page report:

The use of surveillance technology to tag and track people on pretrial release, probation and parole is on the rise.  The COVID-19 crisis in prisons and jails, bail reform efforts and bipartisan support for curbing mass incarceration accelerated interest in purported alternatives to incarceration.  As a result, the use electronic monitoring devices, including GPS-equipped ankle monitors, went up dramatically.

Thanks to the leadership of community organizers and advocates, the harmful and racialized nature of this type of carceral surveillance has been exposed.  This report seeks to add to those efforts by examining the specific policies, procedures, contracts and rules that govern the use of electronic monitoring of people on probation, parole and pretrial release.  Drawing on over 247 records from 101 agencies across 44 states and the District of Columbia, this report focuses on the operation of electronic monitoring and reveals the degree to which monitoring impacts all aspects of everyday life and undermines the ability of people to survive and thrive.  In particular, this report focuses on the specific rules and policies governing people on monitors and how they restrict movement, limit privacy, undermine family and social relationships, jeopardize financial security and result in repeated loss of freedom.  Unlike traditional models of probation and parole, electronic surveillance is more intensive, restrictive and dependent on private surveillance companies that are driven by profit motive.  The findings in this report demonstrate what advocates have long said: Electronic surveillance is not an alternative to incarceration, it’s an alternative form of incarceration.  And like incarceration, the deprivations and restrictions of electronic monitoring further entrench race and class-based subordination.

September 23, 2021 in Criminal Sentences Alternatives, Data on sentencing, Race, Class, and Gender, Reentry and community supervision, Technocorrections | Permalink | Comments (1)