Sentencing Law and Policy

Billionaire behind victims' rights reforms now prompting another kind of criminal justice change in Nevada after cutting sweet plea deal for his drug offenses

Last year I noted in this post the remarkable criminal justice story of Henry Nicholas, the tech billionaire who has pushed Marsy's Law reforms around the nation, upon his arrest at a Las Vegas Strip casino-resort on suspicion of trafficking heroin, cocaine, meth and ecstasy.  A helpful former student made sure I saw this new press article, headlined "Public defenders to use generous plea deal offered to billionaire Henry Nicholas as model for future plea deal requests," which details how the Nichols case is now having a remarkable ripple though the local criminal justice system.  Here is the latest chapter in this fascinating story:

Starting next week, public defenders in Clark County plan to directly invoke and ask prosecutors to grant terms similar to the generous plea deal offered to tech billionaire Henry Nicholas for criminal cases with indigent defendants.  According to documents shared with The Nevada Independent, attorneys in the Clark County public defender’s office have drafted a plan to begin filing motions in criminal cases seeking similar treatment offered to Nicholas by Clark County District Attorney Steve Wolfson’s office.

Civil justice advocates and some Democratic lawmakers cried foul after Wolfson’s office announced a plea deal with Nicholas, after he and a woman (Ashley Fargo) were arrested in Las Vegas last year and charged with several counts of felony drug trafficking.  The deal will see the two avoid prison time, go on informal probation, perform 250 hours of community service, attend regular drug counseling sessions and each make a $500,000 contribution to drug counseling programs in Clark County.

Public defenders in Clark County plan to begin filing motions in District and Justice courts that draw a direct comparison to the plea deal reached with Nicholas and the treatment of indigent defendants, including asking for a reduction in sentence, own recognizance release and a contribution of 0.0128 percent of their net worth — the same percentage of Nicholas’s net worth that he agreed to pay as part of his plea deal.  “Billionaire Defendant Nicholas and Defendant XXX are similarly situated and should be similarly treated by the prosecution and the courts,” the draft motion states. “The primary difference between the two men is that Billionaire Defendant Nicholas is wealthy, while Defendant XXX is not.”

The office has also drafted a form motion asking a District Court judge to recuse the district attorney’s office, for use in potential future criminal cases where prosecutors offer a less-generous plea deal than the one offered to Nicholas and that states the “appearance of impropriety and unfairness” so erodes the public trust that appointment of a special prosecutor is warranted.  “The appearance of impropriety and the bias is most obviously seen in the overly harsh plea bargain the State has offered the indigent defendant versus the sweetheart deal afforded the Billionaire Defendant Nicholas,” the draft motion states. “In this case, it seems clear that the criminal justice system, wealth rather than culpability shaped the outcome.”

The district attorney’s office declined to comment on the planned filings.

Nicholas is the co-founder and former CEO of Broadcom Corporation, with an estimated net worth of $3.8 billion. After leaving Broadcom in 2003, he has poured millions of dollars into passing ballot measures in multiple states (including Nevada) to add a “victim’s bill of rights” called Marsy’s Law to individual state constitutions.  Wolfson appeared in television ads supporting the ballot question in the run-up to the 2018 election.

Nicholas and Fargo — the ex-wife of Brian Fargo, an heir to the Wells Fargo bank fortune — were arrested in Las Vegas in August of 2018 on suspicion of drug trafficking after police found multiple drugs including heroin, cocaine, methamphetamine and ecstasy in their hotel room.  According to a police report, Nichols alerted hotel security at the Encore after he had difficulty opening the door to his hotel room and became concerned about the welfare of Fargo.  Police entered the room and found Fargo unresponsive with a semi-deflated balloon in her mouth, used to recreationally ingest nitrous-oxide (commonly known as whippets or poppers).  Police also reported finding 96 grams of methamphetamine, 4.24 grams of heroin, 15.13 grams of cocaine, and 17.1 grams of psilocin in the hotel room....

Nicholas was previously indicted on federal drug charges in 2008, but the charges were dropped in 2010.  He is scheduled to enter the plea deal, which must be accepted by a judge, on August 28.

I have long said in a variety of settings that advocates of criminal justice reforms out to utilize strategically, rather than complain loudly about, the lenient treatment often afforded more privileged criminal defendants.  Thus, I am quite pleased to see this clever effort by the Clark County public defender's office to try to get all of their less privileged defendants the Nichols treatment.

Prior related post:

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

"Slavery gave America a fear of black people and a taste for violent punishment. Both still define our criminal-justice system."

The title of this post is the title of this new piece authored by Bryan Stevenson from the New York Times magazine. Based on the title and author, regular readers should know this is a must-read in full.  Here is an excerpt:

The United States has the highest rate of incarceration of any nation on Earth: We represent 4 percent of the planet’s population but 22 percent of its imprisoned.  In the early 1970s, our prisons held fewer than 300,000 people; since then, that number has grown to more than 2.2 million, with 4.5 million more on probation or parole.  Because of mandatory sentencing and “three strikes” laws, I’ve found myself representing clients sentenced to life without parole for stealing a bicycle or for simple possession of marijuana.  And central to understanding this practice of mass incarceration and excessive punishment is the legacy of slavery....

The 13th Amendment is credited with ending slavery, but it stopped short of that: It made an exception for those convicted of crimes.  After emancipation, black people, once seen as less than fully human “slaves,” were seen as less than fully human “criminals.”  The provisional governor of South Carolina declared in 1865 that they had to be “restrained from theft, idleness, vagrancy and crime.”  Laws governing slavery were replaced with Black Codes governing free black people — making the criminal-justice system central to new strategies of racial control....

Anything that challenged the racial hierarchy could be seen as a crime, punished either by the law or by the lynchings that stretched from Mississippi to Minnesota.  In 1916, Anthony Crawford was lynched in South Carolina for being successful enough to refuse a low price for his cotton.  In 1933, Elizabeth Lawrence was lynched near Birmingham for daring to chastise white children who were throwing rocks at her.

It’s not just that this history fostered a view of black people as presumptively criminal.  It also cultivated a tolerance for employing any level of brutality in response.  In 1904, in Mississippi, a black man was accused of shooting a white landowner who had attacked him.  A white mob captured him and the woman with him, cut off their ears and fingers, drilled corkscrews into their flesh and then burned them alive — while hundreds of white spectators enjoyed deviled eggs and lemonade.  The landowner’s brother, Woods Eastland, presided over the violence; he was later elected district attorney of Scott County, Miss., a position that allowed his son James Eastland, an avowed white supremacist, to serve six terms as a United States senator, becoming president pro tempore from 1972 to 1978.

This appetite for harsh punishment has echoed across the decades. Late in the 20th century, amid protests over civil rights and inequality, a new politics of fear and anger would emerge.  Nixon’s war on drugs, mandatory minimum sentences, three-strikes laws, children tried as adults, “broken windows” policing — these policies were not as expressly racialized as the Black Codes, but their implementation has been essentially the same.  It is black and brown people who are disproportionately targeted, stopped, suspected, incarcerated and shot by the police.

Hundreds of years after the arrival of enslaved Africans, a presumption of danger and criminality still follows black people everywhere.  New language has emerged for the noncrimes that have replaced the Black Codes: driving while black, sleeping while black, sitting in a coffee shop while black.  All reflect incidents in which African-Americans were mistreated, assaulted or arrested for conduct that would be ignored if they were white.  In schools, black kids are suspended and expelled at rates that vastly exceed the punishment of white children for the same behavior.

Inside courtrooms, the problem gets worse.  Racial disparities in sentencing are found in almost every crime category.  Children as young as 13, almost all black, are sentenced to life imprisonment for nonhomicide offenses.  Black defendants are 22 times more likely to receive the death penalty for crimes whose victims are white, rather than black — a type of bias the Supreme Court has declared “inevitable.”

The smog created by our history of racial injustice is suffocating and toxic.  We are too practiced in ignoring the victimization of any black people tagged as criminal; like Woods Eastland’s crowd, too many Americans are willing spectators to horrifying acts, as long as we’re assured they’re in the interest of maintaining order.

Previewing the (swift? endless?) litigation sure to ensue in wake of effort to restart the federal machinery of death

As noted in this prior post, AG William Barr has engineered a new federal execution protocol and the scheduling of executions for five federal death-row inmates in December 2019 and January 2020. Perhaps the only thing this moves mean for certain is litigation over whether the new protocol is sound and whether these executions will go forward. Here are links and excerpts from a couple articles previewing the litigation to come:

From BuzzFeed News, "The Trump Administration Is Bringing Back Federal Executions. It Will Immediately End Up In Court."  Excerpt:

Megan McCracken, a lawyer involved in the case and an expert on lethal injections, told BuzzFeed News that the litigation focuses on whether a particular execution protocol is constitutional under the Eighth Amendment’s prohibition against “cruel and unusual punishment” and also whether the process is otherwise lawful.  The lawsuit could examine, for instance, whether the Trump administration followed the proper procedures in adopting the new policy.  The administration did not go through the public rule-making process that agencies normally use in adopting regulations, which includes publishing details in advance and giving the public a chance to weigh in, before making its announcement Thursday.

“The devil is really in the details, and so all of the unknowns at this point are going to be the relevant issues for whether or not this protocol is constitutional, is lawful,” McCracken told BuzzFeed News.  “That is why the litigation that’s been on hold in federal court since 2011 ... will now need to proceed and give the court opportunity to review the procedure, the drugs, the execution teams, how they plan to administer it.”

A senior Justice Department official said that former attorney general Jeff Sessions directed the Federal Bureau of Prisons to explore options for resuming federal executions when he took office. The bureau recently concluded its review and submitted the proposal to Barr, who approved it, the official said.  The department’s press release said the new protocol was similar to single-drug procedures used in Georgia, Missouri, and Texas....

The prisoners involved in the pending litigation already had execution dates scheduled, which were put on hold.  The five men now scheduled for lethal injections aren’t parties to the case — defendants without execution dates hadn’t sought to join the case while it was delayed — but the Justice Department’s notice to the court Thursday means it expects the judge to review the new protocol.

From The Hill, "Opponents vow to challenge Justice decision on death penalty." Excerpt:

Human rights and anti-death penalty groups are vowing to challenge the Justice Department’s decision to resume the federal death penalty after a 15-year hiatus.... The groups predicted the decision would set off new lawsuits opposing the Trump administration, particularly given a decades-long move against capital punishment that has seen a number of states suspend the practice....

A number of groups, including the ACLU, have indicated that they plan to challenge the new policy, whether in court or through other means. “Under no circumstances should the Justice Department be allowed to rush through executions. The federal death penalty is defined by the same problems of racial bias, geographic disparities, prosecutorial misconduct, and junk science that have led to the decline in support for capital punishment nationwide,” Cassandra Stubbs, director of the ACLU’s Capital Punishment Project, said in a statement....

Legal battles will likely center on how the policy is being implemented: Barr indicated in Thursday’s announcement that the protocol has already been formally adopted. But experts say that such a policy should have to go through a comment and notice period as required by the Administrative Procedure Act, and that sets it up to be challenged in court....

At least one of the planned executions is already being challenged by the death-row inmate it involves: Attorneys for Daniel Lewis Lee, whose execution is planned for Dec. 9 of this year, are speaking out against the move, saying that his conviction was secured despite the “demonstrated unreliability of the evidence.”

Lee’s attorney Morris Moon raised concerns about the DNA and other evidence used in the case, arguing that it “exemplifies many of the serious flaws in the federal death penalty system.” “Given the problems that undermine the fairness and reliability of Danny Lee’s conviction and death sentence, the Government should not move forward with his execution,” Moon said.

A lawyer for another one of the men, Purkey, also said Thursday that he shouldn’t be executed, claiming that “substandard representation permeated Mr. Purkey’s trial with errors and meant that his jury never had a full picture of his deep and sincere remorse or the personal circumstances that led to these tragic events.“

“The DOJ seeks to execute Mr. Purkey now, despite the myriad legal violations in his case and despite his advancing age and declining health,” attorney Rebecca Woodman said in a statement of her 67-year-old client. “The timing of this decision raises serious questions about the application of capital punishment under this administration."

As suggested by the title of this post, the really big question is whether this capital litigation will move swiftly or slowly. Obviously, the defendants now scheduled to be executed in less than six months would like this litigation to drag on for years. I assume the feds are eager and prepared to move this litigation along swiftly, but just how swiftly? Any ruling adverse to these defendants is sure to be appealed to a federal circuit court and to the Supreme Court. Is DOJ prepared to ask all these courts for expedited briefing schedules in order to try to preserve these scheduled execution dates?

Not mentioned in these pieces, but of great interest to me conceptually, is whether and how these defendants can constitutionally contest how AG Barr decided to put them in the front of the execution queue.  Notably, more than a dozen persons on federal death row were sentenced to death before Danny Lee was condemned in 2002, and more than a few were condemned more than half a decade before Lee.  Just why was he selected to be the first to be executed?  In addition, though less than half of federal death row is white (details here from DEPC), Danny Lee and two other of the condemned given the first execution dates are white. Did AG Barr think it might be politically useful to have more white defendants at the start of the execution queue, and if so wouldn't such thinking raise equal protection concerns?  (Because 8 of the 10 defendants sent to federal death row in the 1990s were black, including all three condemned way back in 1993, I think there is a circumstantial basis to believe that AG Barr may not have set executions dates chronologically because of concern that only black defendants would be scheduled to die first.  But is it constitutionally permissible for him to give race consideration this way?)

"Who’s helping the 1.9 million women released from prisons and jails each year?"

The question in the title of this post is the title of this new Prison Policy Initiative publication.  Here is an excerpt (with links from the original):

As in other stages of the criminal justice system, most post-release policies and programs were created with the much larger male population in mind.  But research makes clear that women returning home have “a significantly higher need for services than men,” and that reentry supports should be responsive to the particular needs of justice-involved women:

• Economic marginalization and poverty: As we’ve previously shown, formerly incarcerated women (especially women of color) have much higher rates of unemployment and homelessness, and are less likely to have a high school education, compared to formerly incarcerated men. These findings help explain why, in a 2012 National Institute of Justice (NIJ) study, 79% of women interviewed 30 days pre-release cited “employment, education, and life skills services” as their greatest area of need (followed closely by transition services). An earlier study (Holtfreder et al., 2004), found that poverty is the strongest predictor of recidivism among women, and “providing state‐sponsored support to address short‐term needs (e.g., housing) reduces the odds of recidivism by 83%” for poor women on probation and parole.

• Housing: A 2017 Prisoner Reentry Institute (PRI) report identified homelessness and the lack of stable housing as the biggest problem facing women in the New York City justice system, noting that 80% of women at Rikers said they needed assistance finding housing upon discharge. A 2006 California study found that 75% of formerly incarcerated women surveyed had experienced homelessness as some point, and 41% were currently homeless. Women who can’t secure safe housing may return to abusive partners or family situations for housing and financial reasons – a point echoed in interviews with paroled women in a study by Brown and Bloom.

• Trauma and gendered pathways to incarceration: The PRI report emphasizes the importance of gender-responsive and trauma-informedinterventions for reducing recidivism among women. According to that report, such interventions should: provide a safe, respectful environment; promote healthy relationships; address substance use, trauma, and mental health issues; provide women with opportunities to improve their socioeconomic conditions; establish “comprehensive and collaborative” community services; and prioritize women’s empowerment.

• Family reunification: Most incarcerated women are mothers, and are frequently the primary caretakers of their children. The importance of family reunification – noted throughout the literature, by Carter et al.(2006), Brown and Bloom (2009), Wright, et al. (2012), the NIJ (2012), among others – cannot be overstated, especially given the trauma experienced by children when separated from a parent.

Two notable new stories of marijuana's still notable criminal justice footprint

Throughout most of the Unites States, millions of Americans are able to "legally" buy and sell marijuana for medical or recreational purposes.  (Of course, I put "legally" in quotes because all these activities are violations of federal law, but the laws and practices of states and localities define enforcement realities.)  Given all the "legal" marijuana activity, it can be dangerously easy to forget that the criminalization of marijuana is still a significant criminal justice reality for a significant number of individuals.  But these two new stories about arrests in two states provides an important reminder of this reality:

From the Washington Post, "Marijuana arrests in Va. reach highest level in at least 20 years, spurring calls for reform."  An excerpt: 

Nearly 29,000 arrests were made for marijuana offenses in Virginia last year, a number that has tripled since 1999, according to an annual crime report compiled by the Virginia State Police. Marijuana busts account for nearly 60 percent of drug arrests across Virginia and more than half of them were among people who were under 24, according to the data. The vast majority of cases involved simple possession of marijuana....

The Virginia Crime Commission found that 46 percent of those arrested for a first offense for possession of marijuana between 2007 and 2016 were African Americans, who represent about only 20 percent of Virginia’s population....

In Virginia, a first conviction for possessing marijuana is a misdemeanor that can result in up to 30 days in jail and a $500 fine. Subsequent arrests can result in up to 12 months in jail and a $2,500 fine. A defendant’s driver’s license is also revoked for six months for a drug conviction. The Virginia Crime Commission study found that only 31 people were in jail in July 2017 solely for a conviction of possessing marijuana in the state. The libertarian Cato Institute estimated Virginia spent $81 million on marijuana enforcement in 2016.

From Wisconsin Watch, "Blacks arrested for pot possession at four times the rate of whites in Wisconsin." An excerpt:

Almost 15,000 adults in Wisconsin were arrested in 2018 for marijuana possession, a 3% increase from 2017, according to data from the state Department of Justice.  Prison admissions in Wisconsin for marijuana also were higher in 2016 for black individuals than for whites, according to the state Department of Corrections. Some experts believe this disparity can be attributed to policing practices in low-income neighborhoods that tend to have more residents of color....

Under state law, possession of marijuana of any amount for a first-time offense can lead to up to six months in jail and a fine of up to $1,000. Any offense after that is classified as a felony and can result in a sentence of three and a half years in prison with a maximum fine of $10,000. 

I want to believe that recently increases in marijuana arrests are mostly a product of increased marijuana activity and not an extra focus on marijuana enforcement. But whatever the reason, I sincerely wonder if anyone sincerely believes that all of the time, money and energy expended for all these marijuana arrests serves to enhance justice or safety in these jurisdictions.

Cross-posed at Marijuana Law, Policy and Reform.

"Measuring Algorithmic Fairness"

The title of this post is the title of this new paper now available via SSRN authored by Deborah Hellman.  With all the use of risk assessment tools throughout the criminal justice system, as with the risk-and-needs tool required by the FIRST STEP Act due out very soon, this discussion of "algorithmic fairness" cause my eye. Here is its abstract:

Algorithmic decision making is both increasingly common and increasingly controversial.  Critics worry that algorithmic tools are not transparent, accountable or fair.  Assessing the fairness of these tools has been especially fraught as it requires that we agree about what fairness is and what it entails. Unfortunately, we do not.  The technological literature is now littered with a multitude of measures, each purporting to assess fairness along some dimension.  Two types of measures stand out.  According to one, algorithmic fairness requires that the score an algorithm produces should be equally accurate for members of legally protected groups, blacks and whites for example.  According to the other, algorithmic fairness requires that the algorithm produces the same percentage of false positives or false negatives for each of the groups at issue.  Unfortunately, there is often no way to achieve parity in both these dimensions.  This fact has led to a pressing question.  Which type of measure should we prioritize and why?

This Article makes three contributions to the debate about how best to measure algorithmic fairness: one conceptual, one normative, and one legal.  Equal predictive accuracy ensures that a score means the same thing for each group at issue.  As such, it relates to what one ought to believe about a scored individual.  Because questions of fairness usually relate to action not belief, this measure is ill-suited as a measure of fairness.  This is the Article’s conceptual contribution.  Second, this Article argues that parity in the ratio of false positives to false negatives is a normatively significant measure.  While a lack of parity in this dimension is not constitutive of unfairness, this measure provides important reasons to suspect that unfairness exists.  This is the Article’s normative contribution.  Interestingly, improving the accuracy of algorithms overall will lessen this unfairness. Unfortunately, a common assumption that antidiscrimination law prohibits the use of racial and other protected classifications in all contexts is inhibiting those who design algorithms from making them as fair and accurate as possible. This Article’s third contribution is to show that the law poses less of a barrier than many assume. 

US House Subcommittee hearing spotlights "Women and Girls in the Criminal Justice System"

Last week, as noted over at my marijuana blog, the Crime, Terrorism and Homeland Security Subcommittee of the Committee of the Judiciary of the US House of Representatives conducted a notable hearing titled "Marijuana Laws in America: Racial Justice and the Need for Reform."   This week, that subcommittee continue to spotlight the need for criminal justice reform through a hearing this morning titled "Women and Girls in the Criminal Justice System."  This ABC News piece, headlined "House Judiciary subcommittee meets on growing population of women behind bars," provides a an effective summary of parts of the hearing, and here are excerpts:

Like 80% of women incarcerated in the U.S., Cynthia Shank was a mother when she went to prison.  Shank was pregnant when she was indicted and like many incarcerated women, she served time for nonviolent offenses -- in her case, she was sentenced to 15-years for federal conspiracy charges related to crimes committed by her deceased ex-boyfriend.  Nearly 150,000 women are pregnant when they are admitted into prison.

Shank, along with other prison reform advocates, appeared in front of the House Judiciary subcommittee for a hearing on women in the criminal justice system to discuss ways to make sure women are not overlooked in the conversation on criminal justice reform.  "Prison destroyed my small young family," Shank said.  "Prison is set up to separate and destroy bonds."...

Piper Kerman, author of the novel turned Netflix series "Orange is the New Black," also shared what her experience was like while imprisoned and why there needs to be a shift in policy to directly impact the growing number of women in prison.  "Policies, not crime, drive incarceration," Kerman said.

Women are now the fastest growing segment of the incarcerated population and initiatives to slow and even reverse the growth of the prison population have had disproportionately less effect on women, according to the Prison Policy Initiative.  The total number of men incarcerated in state prisons fell more than 5% between 2009 and 2015, while the number of women in state prisons fell only a fraction of a percent, 0.29% "In a number of states, women's prison populations are growing faster than men's, and in others, they are going up while men's are actually declining," said Aleks Kajstura, legal director of the Prison Policy Initiative.

The war on drugs is what many of the panelists and lawmakers pointed to as part of the reason there are such high rates of women incarcerated.  "Much of the growth of women in prisons can be attributed to the war on drugs," said Jesselyn McCurdy, deputy director of the Washington legislative office for the American Civil Liberties Union.

"Addressing this unfair issue is important because the war on drugs appears to be a large driver of the incarceration rates of women, as illustrated by the fact that the proportion of women in prison for a drug offense has increased from 12% in 1986 to 25% in more recent years." Rep. Jerry Nadler, D-N.Y., said.

An estimated 61% of women are incarcerated for nonviolent crimes, according to The Sentencing Project.  McCurdy touched on what many women, including Shank, fall victim to in the criminal justice system -- conspiracy charges as they relate to a significant other, also known as the "Girlfriend problem."

"You don't have to necessarily have dealt drugs, you have to have some role in a conspiracy and that role is very little," McCurdy said. "You can pick up the phone in your house that you live in with your partner and that's enough to implicate you in a conspiracy."

Family trauma was also a major focal point of the hearing, as lawmakers turned to the panel to seek their insight on the best ways to address the trauma of family separation. Shank told the subcommittee members that while she was incarcerated in a federal prison in Florida, she was only able to see her children once a year and that her children would beg her not to hang up the phone when they spoke.  "I'm an adult, I accepted the consequences of my sentencing, but my children were the innocent victims of this," Shank said.

The committee also spent time discussing the relationship between male prison guards and female inmates, with both Shank and Kerman saying that there needs to be more attention on the safety of women who are behind bars with male guards. "I never felt safe changing," Shank said.  "Guards know your schedule, and if they want to single you out they will."

Panelists were also asked to speak on the need of bail reform for women behind bars, as 1 in 4 women who are incarcerated have not been convicted and over 60% of women who could not make bail are parents of minor children, according to the Prison Policy Initiative.  Kerman said that there needs to be primary care consideration in the courts that require judges to consider the impact on families in both pre-trial hearings and sentencing.

"Women will no longer be overlooked in the criminal justice conversation," Rep. Karen Bass, D-Calif., said. "We must have an overall approach to criminal justice reform that specifically considers women.

The full two-hour+ hearing, along with the written testimony submitted by the official witnesses, can all be found at this official webpage.  And Piper Kerman's written testimony has a first footnote that provides this statistical basis for heightened concerns about the modern treatment of women and girls in the criminal justice system: "Since 1978, women’s state prison populations have grown 834%, while men’s state prison populations have grown 367%."

Philly DA argues, based on study of local capital cases, that "death penalty, as it has been applied, violates the Pennsylvania Constitution"

As reported in this local article, headlined "DA Krasner wants Pa. Supreme Court to strike down state’s death penalty and declare it unconstitutional," a notable local prosecutor has filed a notable state court brief that surely could have national consequences.  Here are the basics:

In a response to a death penalty case that could have far-reaching ramifications, the Philadelphia District Attorney’s Office is asking the Pennsylvania Supreme Court to strike down the state’s death penalty and declare it unconstitutional.  “Because of the arbitrary manner in which it has been applied, the death penalty violates our state Constitution’s prohibition against cruel punishments,” District Attorney Larry Krasner’s office wrote in a motion filed with the court Monday night....

The DA’s Office was responding to a petition filed by federal public defenders representing Philadelphia death-row inmate Jermont Cox, convicted of three separate drug-related murders in 1992 and ordered to die for one of them.  The defense attorneys, who also represent a Northumberland County inmate, Kevin Marinelli, sentenced to death for a 1994 killing, have asked the high court to end capital punishment, arguing that the death penalty violates the state Constitution’s ban on cruel punishment.

Krasner’s office agrees with that assessment.  The office’s position does not come as a surprise — Krasner had campaigned against the death penalty while running for district attorney in 2017, saying he would “never seek the death penalty” — but Monday night’s motion in the Cox case is the first time Krasner has articulated it to the state’s highest court....

The justices’ eventual decision on Cox and Marinelli could affect not just future death-penalty cases, but also the approximately 130 other inmates awaiting execution, potentially forcing the courts to resentence them.  After a June 2018 bipartisan legislative Joint State Government Commission report found troubling deficiencies in the state’s death-penalty system, Philadelphia-based federal defenders in August filed separate petitions for Cox and Marinelli, asking the state high court to find the death penalty unconstitutional.

The defense attorneys asked the high court to invoke its King’s Bench authority, which gives the court the power to consider any case without waiting for lower courts’ rulings when it sees the need to address an issue of immediate public importance.  The court consolidated the two cases in December.  In its February joint petition for Cox and Marinelli, the federal defenders asked the high court to “strike down the Commonwealth’s capital punishment system as a prohibited cruel punishment” and heavily relied on the joint commission’s report in finding problems with the death penalty....

The DA’s Office response to the defense petition was initially expected in March.  City prosecutors three times requested a deadline extension.  The high court then set a July 15 deadline. The court has set a Sept. 11 hearing date for oral arguments on the petition from Cox and Marinelli....  

Pennsylvania’s death penalty has been used three times since it was reinstated by the state in 1978.  The last person executed was Gary Heidnik of Philadelphia in 1999.

The full brief from DA Larry Krasner's office is available at this link, and it is a must-read in part because it makes much of the office's own study of Philadelphia capital cases. Here are a few paragraphs from the the brief's introduction:

To assess whether Pennsylvania’s capital sentencing regime ensures the heightened reliability in capital cases required by our Constitution, there is no better place to start than Philadelphia — the jurisdiction that has sought and secured more death sentences than any other county in the state.  In order to formulate its position in this case, the Philadelphia District Attorney’s Office (DAO) studied the 155 cases where a Philadelphia defendant received a death sentence between 1978 and December 31, 2017.

As will be detailed below, the DAO study revealed troubling information regarding the validity of the trials and the quality of representation received by capitally charged Philadelphia defendants — particularly those indigent defendants who were represented by under-compensated, inadequately-supported court-appointed trial counsel (as distinguished from attorneys with the Defender Association of Philadelphia).  Our study also revealed equally troubling data regarding the race of the Philadelphia defendants currently on death row; nearly all of them are black.  Most of these individuals were also represented by court-appointed counsel, often by one of the very attorneys whom a reviewing court has deemed ineffective in at least one other capital case....

Where nearly three out of every four death sentences have been overturned— after years of litigation at significant taxpayer expense—there can be no confidence that capital punishment has been carefully reserved for the most culpable defendants, as our Constitution requires. Where a majority of death sentenced defendants have been represented by poorly compensated, poorly supported court-appointed attorneys, there is a significant likelihood that capital punishment has not been reserved for the “worst of the worst.” Rather, what our study shows is that, as applied, Pennsylvania’s capital punishment regime may very well reserve death sentences for those who receive the “worst” (i.e., the most poorly funded and inadequately supported) representation....

As this Court observed in Zettlemoyer, our 1978 statute attempted to establish a reliable, non-arbitrary system of capital punishment. Decades of data from Philadelphia demonstrates that, in its application, the system has operated in such a way that it cannot survive our Constitution’s ban on cruel punishment. Accordingly, the DAO respectfully requests this Court to exercise its King’s Bench or extraordinary jurisdiction and hold that the death penalty, as it has been applied, violates the Pennsylvania Constitution.

Some additional good discussion of this brief and its context can be found in discussions at The Appeal and Reason.

More coverage prisoner reentry issues as FIRST STEP Act's "good time" fix approaches

Prior FIRST STEP Act implementation posts (linked below) noted the delayed application of the Act's "good time" fix, which provides that well-behaved prisoners now get a full 15% credit for good behavior amounting to up to 54 days (not just 47 days) per year in "good time."   And in this post last month, I noted press coverage and efforts surrounding this "good time" fix as it gets closer to kicking in this month (assuming the Attorney General complies with a key deadline in the Act).  This press coverage continues with this Fox News piece headlined "Thousands of ex-prisoners to reunite with their families this month as part of First Step Act," and here are excerpts therefrom:

More than 2,200 federal inmates are returning to their families this month from behind bars under the bipartisan prison reform bill President Trump signed into law last year, according to policy experts and prisoner advocates involved in the effort.

This month will see the largest group to be freed so far under a clause in the First Step Act that reduces sentences due to "earned good time."  In addition to family reunification, the formerly incarcerated citizens, 90 percent of whom have been African-American, hope to get employment opportunities touted by Trump last month at the White House as part of the "Second Chance" hiring program.

"We’re a nation that believes in redemption," the president said, noting Americans with criminal backgrounds are unemployed at rates up to five times the national average, which was around 3.8 percent earlier this year. "You're gonna have an incredible future."

The Trump Administration has asked the private sector to help the ex-prisoners reacclimate to their newfound freedom with jobs and housing in one of the largest criminal justice public-private-partnerships ever assembled.

Kim Kardashian West, who successfully lobbied President Trump to free Alice Johnson, a great-grandmother who was serving a life sentence convicted of drug trafficking for a first-time, non-violent drug offense, announced a partnership with rideshare organization Lyft to hand out gift cards for reformed criminals to get to and from job interviews as transportation can be a barrier. "I just want to thank the president for really standing behind this issue and seeing the compassion that he's had for criminal justice has been really remarkable," the "Keeping Up with the Kardashians" star said during a Second Chance Hiring and Re-entry event at the White House in June....

Matthew Charles, the first inmate released from the program and recognized by Trump for being a “model citizen,” told “America’s Newsroom” barriers to employment and housing need to be “eliminated” so former inmates don’t find themselves back in prison.  The Trump Administration has a broad amount of support across governmental departments from labor to DOJ to DOE, as well as governors across the country streamlining state services in order to reduce the barriers Charles mentioned.

This article seems to imply that ninety percent of those who will be released from prison soon thanks to the "good time" fix are African-American, but that racial statistic actually relates to the distinct group of prisoners who have received reductions in their crack sentences due to a different provision in the FIRST STEP Act.  The group getting relief thanks to the operation of the "good time" fix later this month is likely to be more closely representative of the entire federal prison population (which is, very roughly speaking, about 1/3 white, 1/3 black, and 1/3 Latino).  And, as noted in another recent press article, a good number of non-citizen offenders will be deported upon their release from prison.

Prior related posts:

• Spotlighting how FIRST STEP Act implementation challenges and uncertainty has already begun
• Spotlighting problems with immediate application of expanded good time credit in the FIRST STEP Act 
• Another review of the bad mess surrounding the "good time" fix in the FIRST STEP Act
• Curious (but still encouraging) discussion of expected release of prisoners after FIRST STEP Act "good time" fix becomes operational
• Noticing that early federal prisoner release often means earlier deportation for non-citizen offenders

Summer reading (with a Fall cover date) from the American Journal of Criminal Law

Over the holiday week, I noticed that American Criminal Law Review already has published its Fall 2019 issue, and that this issue includes a number of articles that sentencing fans may want to add to their summer reading list: 

The Biased Algorithm: Evidence of Disparate Impact on Hispanics by Melissa Hamilton

Is Mass-Incarceration Inevitable? by Andrew Leipold

Defining the Proper Role of “Offender Characteristics in Sentencing Decisions: A Critical Race Theory Perspective by Lisa Saccomano

Cruel, Unusual, and Unconstitutional: An Originalist Argument for Ending Long-Term Solitary Confinement by Merin Cherian

Pandora’s Algorithmic Black Box: The Challenges of Using Algorithmic Risk Assessment in Sentencing by Leah Wisser

"Language matters for justice reform"

The title of this post is the headline of this notable recent Hill commentary authored by Deanna Hoskins. I recommend the whole piece, and here is an excerpt:

Words such as offenders, convicts, prisoners and felons have existed in our lexicon for decades if not centuries.  But in recent years people have begun speaking out against the use of these dehumanizing terms.  Eddy Ellis, the late justice reform leader, penned a letter more than 15 years ago that ignited a movement demanding an end to dehumanizing language. He wrote, “The worst part of repeatedly hearing your negative definition of me is that I begin to believe it myself ‘for, as a man thinketh in his heart, so is he.’ It follows, then, that calling me inmate, convict, prisoner, felon, or offender indicates a lack of understanding of who I am, but more importantly what I can be.”

Movement leaders have long-recognized Mr. Ellis’s call to use humanizing language — but journalists, elected officials, and people new to the field must recognize this and make the shift as well.  In some state corrections systems, offensive terms such as “inmate” and “offender” have been banned from prisons.  A few years ago, the Department of Justice Office of Justice program that oversees criminal justice efforts announced that it would no longer use the word felon or convict in any of its communications and grant solicitations, instead using “a person who committed a crime.”  Resources including Mr. Ellis’ letter, the Social Justice Phrase Guide and The Opportunity Agenda’s toolkit are readily available to help people understand humanizing “people-first” language and why it’s important.

When we no longer define someone in the media or other arenas as “other,” we shift culture and policies toward human rights and dignity.  By making a conscious effort to change, we can use language that addresses injustice without dehumanizing people — especially black and brown people facing disproportionate discrimination after a record. Several years ago racial justice advocates, successfully stopped media outlets such as the Associated Press from using the phrase “illegal immigrant” which implied that a person’s existence violated the law.  Doing so brought attention to the mistreatment and human rights violations experienced by immigrants seeking refuge in this country.

We can achieve the same in the justice space. We must all commit to using terms such as “formerly incarcerated or incarcerated person” or “person with a felony conviction” instead of “ex-con,” “felon,” or “inmate.”  By doing so we make a conscious effort to recognize and respect people’s humanity.  To do otherwise only reinforces the second-class status we relegate upon many people in this country and therefore stalls our efforts toward equal justice for all.

I am quite sympathetic to the spirit and substance of this commentary, but I fear I will continue to struggle to move away from short-hand terminology like offender and prisoner (rather than person who committed an offense or person in prison).  

"The Gendered Burdens of Conviction and Collateral Consequences on Employment"

The title of this post is the title of this notable paper recently posted to SSRN and authored by Joni Hersch and Erin Meyers.  Here is its abstract:

Ex-offenders are subject to a wide range of employment restrictions that limit the ability of individuals with a criminal background to earn a living.  This Article argues that women involved in the criminal justice system likely suffer a greater income-related burden from criminal conviction than do men.  This disproportionate burden arises in occupations that women typically pursue, both through formal pathways, such as restrictions on occupational licensing, and through informal pathways, such as employers’ unwillingness to hire those with a criminal record.

In addition, women have access to far fewer vocational programs while incarcerated.  Further exacerbating this burden is that women involved in the criminal justice system tend to be a more vulnerable population and are more likely to be responsible for children than their male counterparts, making legal restrictions on access to public assistance that would support employment more burdensome for women.  We propose programs and policies that may ameliorate these gendered income burdens of criminal conviction, including reforms to occupational licensing, improved access to public assistance, reforms to prison labor opportunities, improvements in labor market information sharing, and expanded employer liability protection.

"Beyond the Algorithm Pretrial Reform, Risk Assessment, and Racial Fairness"

The title of this post is the title of this notable new report released by the Center for Court Innovation and authored by by Sarah Picard, Matt Watkins, Michael Rempel and Ashmini Kerodal. Here is its introduction: 

Pretrial detention, often resulting from a defendant’s inability to afford bail, is one of the primary drivers of incarceration nationwide. The Bureau of Justice Statistics estimates that two out of three people in local jails in 2016 were held while awaiting trial, having not yet been convicted of a crime.  Jurisdictions looking to safely reduce their use of bail and pretrial detention have increasingly turned to automated or actuarial risk assessments.  These tools employ a mathematical formula, or algorithm, to estimate the probability of a defendant incurring a new arrest or failing to appear in court.  Typically, in a risk assessment, defendants’ criminal history, criminogenic needs, and/or basic demographic information, such as age and gender, are weighted and combined, generating a score which can be used to group defendants into risk categories ranging from low to high.

With the aid of better information about the defendants who appear before them, judges, in theory, can make more consistent decisions regarding pretrial release and bail.  For example, jurisdictions that use risk assessments may be more likely to consider pretrial release for defendants in lower-risk categories, or pretrial supervision in the community for higher-risk defendants.  In cases where victim or community safety is a concern, risk assessment may provide guidance regarding the need for bail or detention hearings.

The appeal of pretrial risk assessment — especially in large, overburdened court systems — is of a fast and objective evaluation, harnessing the power of data to aid decision-making.  Research suggests that actuarial risk assessments are more accurate than decisions made by criminal justice officials relying on professional judgment alone.  By intervening in a process historically driven by subjective decisionmaking, risk assessments arguably act as a corrective to a system plagued by bias, as witnessed in the racial disparities long seen in incarceration rates across the country.

That said, important objections have been raised that, far from disrupting racial biases in the criminal justice system, risk assessments unintentionally amplify them, only this time under the guise of science.  The debate is still unresolved, but from a justice system practitioner’s perspective — let alone that of a defendant — the stakes are urgent.

What follows are the results of an empirical test of racial bias in risk assessment and, based on an original analysis, a consideration of whether there are policy-level solutions that could conserve the benefits of risk assessment, while also addressing valid concerns over racial fairness.

The Sentencing Project reports one of every 15 women in prison (nearly 7,000) serving life or virtual life sentence

Via email I received this morning this fact sheet from The Sentencing Project titled "Women and Girls Serving Life Sentences" (which lead me to see that, a few weeks ago, it also release this related fact sheet titled "Incarcerated Women and Girls"). Here is the start of this latest publication:

Nationwide one of every 15 women in prison — nearly 7,000 women — is serving a life or virtual life sentence.  One-third of them have no chance for parole, so their prospects for release are highly improbable.  The number of women serving life sentences has grown dramatically despite declining rates of violent crime among women.

As is the case with imprisonment generally, men comprise the overwhelming proportion of people in prison for life; 97% of lifers are men.  At the same time, the number of women serving life sentences is rising more quickly than it is for men.  The Sentencing Project collected life-imprisonment figures by gender in 2008 and 2016. W e find that during this nine-year period the number of women serving life sentences increased by 20%, compared to a 15% increase for men.

The rise in life imprisonment among women has also been far more rapid than the overall prison population increase among women for violent offenses.  Between 2008 and 2016 there was a 2% increase in the number of imprisoned women for a violent crime, but a 20% increase in the number of women serving a life sentence.  When analysis is limited to life-without-parole sentences, we see that the number of women serving these sentences increased by 41% compared to 29% for men.

SCOTUS finds Batson violation based on "extraordinary facts" in Flowers

The Supreme Court ruled for a criminal defendant today in a Batson challenge in Mississippi v. Flowers, No. 17-9572 (S. Ct. June 21, 2019) (available here). As with all criminal cases, I find the line up of the Justices notable:

KAVANAUGH, J., delivered the opinion of the Court, in which ROBERTS, C. J., and GINSBURG, BREYER, ALITO, SOTOMAYOR, and KAGAN, JJ., joined. ALITO, J., filed a concurring opinion. THOMAS, J., filed a dissenting opinion, in which GORSUCH, J., joined as to Parts I, II, and III.

Here is part of the start of the lengthy opening of the opinion of the Court:

In Batson v. Kentucky, 476 U.S. 79 (1986), this Court ruled that a State may not discriminate on the basis of race when exercising peremptory challenges against prospective jurors in a criminal trial.

In 1996, Curtis Flowers allegedly murdered four people in Winona, Mississippi. Flowers is black. He has been tried six separate times before a jury for murder. The same lead prosecutor represented the State in all six trials.

In the initial three trials, Flowers was convicted, but the Mississippi Supreme Court reversed each conviction. In the first trial, Flowers was convicted, but the Mississippi Supreme Court reversed the conviction due to “numerous instances of prosecutorial misconduct.”  Flowers v. State, 773 So. 2d 309, 327 (2000)....

In his sixth trial, which is the one at issue here, Flowers was convicted. The State struck five of the six black prospective jurors.  On appeal, Flowers argued that the State again violated Batson in exercising peremptory strikes against black prospective jurors. In a divided 5-to-4 decision, the Mississippi Supreme Court affirmed the conviction.  We granted certiorari on the Batson question and now reverse....

Four critical facts, taken together, require reversal....

We need not and do not decide that any one of those four facts alone would require reversal. All that we need to decide, and all that we do decide, is that all of the relevant facts and circumstances taken together establish that the trial court committed clear error in concluding that the State’s peremptory strike of black prospective juror Carolyn Wright was not “motivated in substantial part by discriminatory intent.” Foster v. Chatman, 578 U.S. ___, ___ (2016) (slip op., at 23) (internal quotation marks omitted). In reaching that conclusion, we break no new legal ground.  We simply enforce and reinforce Batson by applying it to the extraordinary facts of this case. 

"Most US drug arrests involve a gram or less"

The title of this post is the title of this new short piece by Joseph Kennedy (which condenses some of his really important work set forth in this recent full article, "Sharks and Minnows in the War on Drugs: A Study of Quantity, Race and Drug Type in Drug Arrests"). Here are excerpts:

U.S. drug laws are designed as if every offender was a dedicated criminal like Walter White, treating the possession or sale of even small quantities of illegal drugs as a serious crime requiring serious punishment.

I have studied the war on drugs for a number of years.  Last December, my colleagues and I published a study on U.S. drug arrests, showing that roughly two out of every three arrests by state and local law enforcement target small-time offenders who are carrying less than a gram of illegal drugs.

Virtually all states treat as felonies the sale of any amount of illegal drugs.  The thinking behind these laws is that you cannot catch the big fish without catching some minnows as well.  Many states also treat the mere possession of any amount of a hard drugs, such as cocaine, heroin or meth/amphetamine, as a felony....

We wanted to find out how often the police made arrests involving large quantities of drugs.  To make things manageable, we narrowed our study to three evenly spaced years, 2004, 2008 and 2012.  The resulting data set contained over a million cases, with usable data found in over 700,000 cases.  We believe our study is the most comprehensive study of drug arrest quantity undertaken to date....

Our study found that, by and large, state and local police agencies are arresting small fish, not big ones.  Two out of three drug offenders arrested by state and local law enforcement possess or sell a gram or less at the time of arrest. Furthermore, about 40% of arrests for hard drug are for trace amounts — a quarter of a gram or less.

Because possessing any amount of a hard drug and selling any illegal drug is a felony in virtually every state, the small size of these quantities matter.  They suggest that very minor offenders face felony liability.  Felony convictions make it difficult for ex-offenders to secure good jobs.  They carry many other harmful collateral consequences.

There are few truly big, or even medium-sized, offenders in the remaining arrests.  Arrests for quantities of hard drugs above five grams range between 15 and 20 percent of all arrests, and arrests for a kilogram or more are less than 1%.

What’s more, the racial distribution of these small quantity arrests reveal importance differences between arrests for different types of drugs.

Our study confirms that blacks are disproportionately arrested for crack cocaine offenses, as are whites for meth/amphetamine and heroin offenses.  When it comes to possession of a quarter gram or less, police arrest almost twice as many blacks as whites for crack cocaine.  However, they arrest almost four times as many whites as blacks for heroin and eight times as many whites as blacks for meth/amphetamine.

Offenders of color are, by and large, not significantly more serious offenders in terms of quantity of drugs.  They just possess and sell drugs that are the most frequent target of arrest.  Our study showed about twice as many arrests for crack cocaine as for meth/amphetamine and almost four times as many arrests for crack cocaine as for heroin.

Finally, this study shows that 71% of drug arrests are not for hard drugs, but for marijuana.  The majority of those arrests are also for tiny quantities: 28% for trace amounts and almost 50% for a gram or less.  Once again, blacks are disproportionately arrested for marijuana offenses, making up about a quarter of all marijuana arrests despite being about 13% of the population.

Illegal drugs are ultimately sold in small quantities to users, so it’s not surprising that there are more small quantity offenders in the pool of drug arrestees.  But this study suggests that the majority of state and local drug enforcement resources are spent catching these small fish.  The drug war is not being waged primarily against the Walter Whites, but against much less serious offenders.

Prior related post:

• "Sharks and Minnows in the War on Drugs: A Study of Quantity, Race and Drug Type in Drug Arrests" 

"Science and Ethics of Algorithms in the Courtroom"

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

This Article analyzes the societal and cultural impacts of greater reliance on the use of algorithms in the courtroom.  Big-data analytics and algorithms are beginning to play a large role in influencing judges’ sentencing and criminal enforcement decisions.  This Article addresses this shift toward greater acceptance of algorithms as models for risk-assessment and criminal forecasting within the context of moral and social movements that have shaped the American justice system’s current approach to punishment and rehabilitation.

By reviewing salient problems of scientific uncertainty that accompany the use of these models and algorithms, the Article calls into question the proposition that greater reliance on algorithms in the courtroom can lead to a more objective and fair criminal sentencing regime. Far from liberating the society from the biases and prejudices that might pollute judges’ decision-making process, these tools can intensify, while simultaneously concealing, entrenched cultural biases that preexist in the society.

Using common themes from the field of Science and Technology Studies (STS), including boundary-work analysis and Public Understanding of Science (PUS), this Article highlights unique technical characteristics of big-data analytics and algorithms that feed into undesirable and deeply-held values and beliefs.  This Article draws attention to specific gaps in technical understanding of algorithmic thinking, such as the black box of algorithms, that can have discordant impact on communicating uncertainty to the populace and reduce accountability and transparency in regulating the use of algorithms.  This Article also provides specific policy proposals that can ameliorate the adverse social and cultural effects of incorporating algorithms into the courtroom.  The discussion of policy proposals borrows from the STS literature on public participation in science and encourages adoption of a policy that incorporates diverse voices from political actors, most affected communities, and the offenders themselves.

Spotlighting racial divides in perceptions of crime and punishment

Just about every serious study of US criminal justice systems shows a different form of justice applies to black and white Americans.  And John Gramlich at Pew Research Center has this interesting new piece spotlighting many of the different perceptions of justice among black and white Americans.  I recommend the piece in full, and here are excerpts with a sentencing emphasis  (and with links from the original):

Black Americans are far more likely than whites to say the nation’s criminal justice system is racially biased and that its treatment of minorities is a serious national problem.  In a recent Pew Research Center survey, around nine-in-ten black adults (87%) said blacks are generally treated less fairly by the criminal justice system than whites, a view shared by a much smaller majority of white adults (61%).  And in a survey shortly before last year’s midterm elections, 79% of blacks — compared with 32% of whites — said the way racial and ethnic minorities are treated by the criminal justice system is a very big problem in the United States today.

Racial differences in views of the criminal justice system are not limited to the perceived fairness of the system as a whole.  Black and white adults also differ across a range of other criminal justice-related questions asked by the Center in recent years, on subjects ranging from crime and policing to the use of computer algorithms in parole decisions....

A narrow majority of Americans (54%) support the death penalty for people convicted of murder, according to a spring 2018 survey.  But only around a third of blacks (36%) support capital punishment for this crime, compared with nearly six-in-ten whites (59%).  Racial divisions extend to other questions related to the use of capital punishment.  In a 2015 survey, 77% of blacks said minorities are more likely than whites to be sentenced to death for committing similar crimes.  Whites were divided on this question: 46% said minorities are disproportionately sentenced to death, while the same percentage saw no racial disparities.

Blacks were also more likely than whites to say capital punishment is not a crime deterrent (75% vs. 60%) and were less likely to say the death penalty is morally justified (46% vs. 69%).  However, about seven-in-ten in both groups said they saw some risk in putting an innocent person to death (74% of blacks vs. 70% of whites)....

Some states now use criminal risk assessments to assist with parole decisions. These assessments involve collecting data about people who are up for parole, comparing that data with data about other people who have been convicted of crimes, and then assigning inmates a score to help decide whether they should be released from prison or not.  A 2018 survey asked Americans whether they felt the use of criminal risk assessments in parole decisions was an acceptable use of algorithmic decision-making. A 61% majority of black adults said using these assessments is unfair to people in parole hearings, compared with 49% of white adults.

Two notable new publications on how criminal justice contacts impact schooling and employment realities

I just recent came across two new interesting publications from the Institute for Research on Labor and Employment concerning the intersection of criminal justice realities and labor, schooling and employment realities.  Here are titles, links and overview/abstracts from the papers:

"Finding Employment After Contact with the Carceral System" by Lisa McCorkell and Sara Hinkley

High rates of unemployment among the formerly incarcerated serve to extend punishment long after time has been served.  Much of the difficulty in finding a job comes from institutional exclusion, but the search methods jobseekers employ also pose obstacles to their success.  UC Berkeley sociologist Sandra Susan Smith has found that the system-involved are less likely to search for jobs, and those who do use less effective search methods.  Policies that might improve these outcomes include creating resource guides on best practices for employment as well as expanding post-release employment programs.  Expanding expungement, Ban the Box/Fair Chance legislation, and employer hiring incentives can also help overcome institutional barriers to employment for those exiting the carceral system.

"Does Locked Up Mean Locked Out? The Effects of the Anti-Drug Act of 1986 on Black Male Students’ College Enrollment" by Tolani Britton

This paper explores one reason for the educational gaps experienced by Black men.  Using variation in state marijuana possession and distribution laws, this paper examines whether the Anti-Drug Act of 1986, which increased the disproportionate incarceration of Black males, also led to differences in college enrollment rates.  The results suggest that Black males had a 2.2% point decrease in the relative probability of college enrollment after the passage of the Anti-Drug Abuse Act of 1986.  There is some evidence that laws around crack cocaine, and not marijuana, led to this decrease in the probability of enrollment.

A Mother's Day round up of stories in incarceration nation

Last year in this post I did a review of mom-related incarceration articles in honor of Mother's Day. And another year brings another set of these articles worth posting:

From the Boston Globe, "Criminal justice reform must focus on women who are incarcerated"

From the Idaho State Journal, "Mother's Day Behind Bars: Card contest helps Pocatello women's prison inmates cope"

From the Marshall Project, "Why Mothers Are the Unsung Heroes of Prison"

From NBCNews, "#FreeBlackMamas works to bail black mothers out of jail in time for Mother's Day"

From WNYT, "Schenectady man offers shuttle so adult kids can visit mom in prison"

"Law, Prison, and Double-Double Consciousness: A Phenomenological View of the Black Prisoner’s Experience"

The title of this post is the title of this notable new Yale Law Review Forum piece authored by James Davis III. Here is its abstract:

This Essay introduces double-double consciousness as a new way of conceptualizing the psychological ramifications of being a black prisoner.  It begins by revisiting W.E.B. DuBois’s theory of double consciousness.  It then offers a phenomenological exposition of double-double consciousness — the double consciousness that the black prisoner came to prison with, coupled with the double consciousness that the black prisoner develops in prison.  Thought and feeling, time and space are all different in the prison.  This world relentlessly imposes the prisoner identity on all those who inhabit it, requiring them to reconcile their new status with their conceptions of self.  Based on my own experience as a black prisoner, I conclude that double-double consciousness is a mechanism through which the prisoner can maintain dignity despite living in captivity.

Noting the encouraging story of reduced rates of incarceration for African Americans

Charles Lane and Keith Humphreys have this nice new Washington Post commentary spotlighting one notable part of the last BJS numbers on prison populations (discussed here).  The piece is headlined "Black imprisonment rates are down.  It’s important to know why."  Here are excerpts:

The imprisonment rate for African Americans is falling, has been falling since 2001 and now stands at its lowest level in more than a quarter-century.  These remarkable data are hidden in plain sight, in the latest annual statistical survey of prisoners issued last week by the Bureau of Justice Statistics.

Comparing 2017 survey results with prior years shows that the African American male imprisonment rate has dropped by a third since its peak and is now at a level not seen since 1991.  African American women’s rate of imprisonment has dropped 57 percent from its peak and is now at a 30-year low.

How big a change does this represent? Had African American imprisonment held steady at its highest point (2001 for men, 1999 for women) instead of declining, about 300,000 more African Americans would be in prison right now.  Instead they are free to live in the community, to raise families, to hold jobs, to be healthy and happy.

Dramatic failures command attention and therefore often drive efforts at policy reform and innovation. Yet success can be just as informative. It’s just as vital to understand why black imprisonment rates have fallen as it was to understand why they rose.  Yet, so far, there is still more discussion about the latter than the former.

It’s time for the debate to catch up with the data.  Collapsing crime rates in black neighborhoods surely reduced imprisonment rates, but how did that increase in public safety come about?  Did programs to make policing and sentencing more equitable also contribute?  Do prisoner reentry programs deserve any credit for reducing incarceration, and if so, which ones?  What is being done right that should be expanded to accelerate the positive trends?

Obviously, there is a risk of feeding complacency in taking note of — and celebrating — the decrease in black imprisonment. Yet to do otherwise risks feeding defeatism in the face of clear evidence that progress is possible. It also would miss an opportunity to break down racist myths: The declining imprisonment rate for African Americans definitively rebuts any notion of intractable black criminality....

Undeniably, today’s still-high and still-disproportionate rate of black imprisonment represents the appalling legacy of institutional racism.  Equally undeniably, the continuing presence of about 1.5 million people in state and federal prisons poses a challenge to public policy and the nation’s conscience.  But in important respects, the situation is getting better.  We need to say so: The nation’s reformers could use the recognition and the inspiration.

BJS releases "Prisoners in 2016" and "Jail Inmates in 2017" reporting notable declines in incarcerated persons

As reported in this press release, "from 2007 to 2017, incarceration rates in both prisons and jails decreased by more than 10%, according to reports released today by the Bureau of Justice Statistics." Here is more from the release:

Over a decade, the incarceration rate among state and federal prisoners sentenced to more than a year dropped by 13%, from 506 prisoners per 100,000 U.S. residents in 2007 to 440 prisoners per 100,000 in 2017. The prison incarceration rate also dropped 2.1% from 2016 to 2017, bringing it to the lowest level since 1997. The jail incarceration rate decreased by 12% from 2007 to 2017, from 259 to 229 jail inmates per 100,000 U.S. residents, but did not decline from 2016 to 2017.

The U.S. prison population was 1.5 million prisoners at year-end 2017, and the population of jail inmates in the U.S. was 745,000 at midyear 2017. There were 1.3 million prisoners under state jurisdiction and 183,000 under federal jurisdiction. From the end of 2016 to the end of 2017, the number of prisoners under federal jurisdiction declined by 6,100 (down 3%), while the number of prisoners under state jurisdiction fell by 12,600 (down 1%).

By citizenship status, non-citizens made up roughly the same portion of the U.S. prison population (7.6%) as of the total U.S. population (7.0%, per the U.S. Census Bureau). This is based on prisoners held in the custody of publicly or privately operated state or federal prisons. Among racial groups, the imprisonment rate for sentenced black adults declined by 31% from 2007 to 2017 and by 4% from 2016 to 2017, the largest declines of any racial group.

However, the imprisonment rate for sentenced black males was more than twice the rate for sentenced Hispanic males and almost six times that for sentenced white males (2,336 per 100,000 black males compared to 1,054 per 100,000 Hispanic males and 397 per 100,000 white males). The rate for sentenced black females was almost double that for sentenced white females (92 per 100,000 black females compared to 49 per 100,000 white females).

Among state prisoners sentenced to more than one year, more than half (55%) were serving a sentence for a violent offense at year-end 2016, the most recent year for which state data are available. An estimated 60% of blacks and Hispanics in state prisons were serving a sentence for a violent offense, compared to 48% of whites. At the end of fiscal year 2017, nearly half of all federal prisoners were serving a sentence for drug trafficking.

Privately operated prison facilities held 121,400 prisoners, or 8% of all state and federal prisoners, at year-end 2017. Inmates in these facilities were under the jurisdiction of 27 states and the Bureau of Prisons. The number of federal prisoners held in private facilities decreased by 6,600 from 2016 to 2017 (down 19%).

In 2017, almost two-thirds (482,000) of jail inmates were unconvicted, awaiting court action on a charge, while the rest (263,200) were convicted and either serving a sentence or awaiting sentencing.

The demographic characteristics of persons incarcerated in jails shifted from 2005 to 2017. During this period, the percentage of the jail population that was white increased from 44% to 50%, while the percentage that was black decreased from 39% to 34%. Hispanics accounted for 15% of all jail inmates in 2017, the same as in 2005. Asians accounted for less than 1% of jail inmates in both years. In 2017, the jail incarceration rate for blacks was more than 3 times the rate for whites and Hispanics, and more than 20 times the rate for Asians.

Jails reported 10.6 million admissions in 2017, which represented no change from 2016 but a 19% decline from 13.1 million in 2007. The overall weekly inmate turnover rate was 54% in 2017, while the estimated average time spent in jail before release was 26 days.

The full BJS reports are chock full of additional important data points, and are excitingly titled "Prisoners in 2017" (running 44 pages) and "Jail Inmates in 2017" (running 18 pages).  Especially because I am busy with end-of-semester tasks, I would be grateful to hear from others about any particular data points within these documents that seem especially notable and important.  Helpfully, the Sentencing Project has this release about the data with these interesting observations:

Analysis of the new data by The Sentencing Project reveals that:

• The United States remains as the world leader in its rate of incarceration, locking up its citizens at 5-10 times the rate of other industrialized nations. At the current rate of decline it will take 75 years to cut the prison population by 50%.
• The population serving life sentences is now at a record high. One of every seven individuals in prison — 206,000 — is serving life. 
• Six states have reduced their prison populations by at least 30% over the past two decades — Alaska, Connecticut, California, New Jersey, New York, and Vermont. 
• The rate of women’s incarceration has been rising at a faster rate than men’s since the 1980s, and declines in recent years have been slower than among men. 
• Racial disparities in women’s incarceration have changed dramatically since the start of the century.  Black women were incarcerated at 6 times the rate of white women in 2000, while the 2017 figure is now 1.8 times that rate. These changes have been a function of both a declining number of black women in prison and a rising number of white women. For Hispanic women, the ratio has changed from 1.6 times that of white women in 2000 to 1.4 times in 2017.

Texas completes another execution of another killer involved in notorious hate crime

As reported in this local article, headlined "Texas executes John William King in racist dragging death of James Byrd Jr.," the Lone Star State has completed another notable execution.  Here are the basics:

It’s been more than two decades since an infamous hate crime in East Texas, where three white men were convicted of chaining a black man to the back of a pickup truck, dragging him for miles and then dumping the remains of his body in front of a church.

On Wednesday evening, John William King, 44, became the second and final man to be executed in the 1998 murder case of James Byrd Jr. Lawrence Brewer was put to death in 2011 for the crime, and Shawn Berry is serving a life sentence.

King had previously been involved in a white supremacist prison gang, and he was notoriously covered in racist tattoos, including Ku Klux Klan symbols, a swastika and a visual depiction of a lynching, according to court documents. But King maintained that he was innocent in Byrd’s murder — claiming that Berry dropped him and Brewer off at their shared apartment before Byrd was beaten and dragged to death.

In a last-minute appeal, King’s attorney argued that a recent U.S. Supreme Court ruling entitled his client to a new trial because his original lawyers didn’t assert his claim of innocence to the jury despite King’s insistence. The Texas Court of Criminal Appeals narrowly rejected this appeal in a 5-4 ruling Monday, and the U.S. Supreme Court ruled against stopping the execution about 30 minutes after it was scheduled to begin Wednesday.

After the ruling, King was taken from a holding cell and placed on a gurney in the death chamber and hooked up to an IV. He had no personal witnesses at his execution and spoke no final words, but he did provide a written statement beforehand, stating "Capital Punishment: Them without the capital get the punishment."  He was injected with a lethal dose of pentobarbital at 6:56 p.m., and pronounced dead 12 minutes later, according to the prison department.

Two of Byrd’s sisters and his niece planned to watch King's death. One of the sisters, who also watched Brewer's execution in 2011, told The Texas Tribune Tuesday that she didn’t understand why King’s case was tied up for so long with numerous appeals. He was sentenced to death in February 1999. “He wants to find a way not to die, but he didn’t give James that chance,” said Louvon Harris. “He’s still getting off easy because your body’s not going to be flying behind a pickup truck being pulled apart.”...

Before the execution, Harris said King's death would bring her some closure, but she will still have to be involved in Berry’s case as he becomes eligible for parole in 2038.

Notably, this was only the fourth execution in all of the US so far in 2019.  For telling contrast, consider that 10 years ago, there were 24 executions in 2009 before the end of April; and 20 years ago, there were 40 executions in 1999 before the end of April.  Were the pace of just one execution per month to continue, we would see in 2019 the fewest total number of executions in the United States in more than 30 years.

However, as this upcoming executions page reveals, there are already five executions in five different states scheduled for May 2019.  If all those executions are carried out, the pace for nationwide executions in 2019 would be comparable to the pace in 2017 and 2018.

"Misdemeanors by the Numbers"

The title of this post is the title of this notable new article now available via SSRN authored by Sandra Mayson and Megan Stevenson.  Here is its abstract:

Recent scholarship has underlined the importance of criminal misdemeanor law enforcement, including the impact of public-order policing on communities of color, the collateral consequences of misdemeanor arrest or conviction, and the use of misdemeanor prosecution to raise municipal revenue.  But despite the fact that misdemeanors represent more than three-quarters of all criminal cases filed annually in the United States, our knowledge of misdemeanor case processing is based mostly on anecdote and extremely localized research.  This Article represents the most substantial empirical analysis of misdemeanor case processing to date.  Using multiple court-record datasets, covering several million cases across eight diverse jurisdictions, we present a detailed documentation of misdemeanor case processing from the date of filing through adjudication and sentencing.

The resulting portrait reveals a system that disproportionately impacts poor people and people of color.  Between 2011 and 2016, each jurisdiction studied relied on monetary bail, which resulted in high rates of pretrial detention even at relatively low amounts, and imposed court costs upon conviction.  There were substantial racial disparities in case-filing rates across locales and offense categories.  The data also, however, highlight profound jurisdictional heterogeneity in how misdemeanors are defined and prosecuted.  The variation suggests that misdemeanor adjudication systems may have fundamentally different characters, and serve different functions, from place to place. It thus presents a major challenge to efforts to describe and theorize the contemporary landscape of misdemeanor justice.  At the most fundamental level, the variation calls into question the coherence of the very concept of a misdemeanor, or of misdemeanor criminal justice.  As appreciation for the significance of low-level law enforcement builds, we urge scholars and policymakers to attend carefully to the complexity of this sub-felony world.

"Death by Stereotype: Race, Ethnicity, and California’s Failure to Implement Furman’s Narrowing Requirement"

The title of this post is the title of this new empirical article now available via SSRN and co-authored by an especially impressive list of folks: Catherine M. Grosso, Jeffrey Fagan, Michael Laurence, David C. Baldus, George G. Woodworth and Richard Newell.  Here is its abstract:

The influence of race on the administration of capital punishment in the United States had a major role in the United States Supreme Court’s 1972 decision in Furman v. Georgia to invalidate death penalty statutes across the United States.  To avoid discriminatory and capricious application of capital punishment, the Supreme Court held that the Eighth Amendment requires legislatures to narrow the scope of capital offenses and ensure that only the most severe crimes are subjected to the ultimate punishment.  This Article demonstrates the racial and ethnic dimension of California’s failure to implement this narrowing requirement.

Our analysis uses a sample of 1,900 cases drawn from 27,453 California convictions for first-degree murder, second-degree murder, and voluntary manslaughter with offense dates between January 1978 and June 2002.  Contrary to the teachings of Furman, we found that several of California’s “special circumstances” target capital eligibility disparately based on the race or ethnicity of the defendant.  In so doing, the statute appears to codify rather than ameliorate the harmful racial stereotypes that are endemic to our criminal justice system.  The instantiation of racial and ethnic stereotypes into death-eligibility raises the specter of discriminatory intent in the design of California’s statute, with implications for constitutional regulation of capital punishment.

Impressive (and growing) accounting of studies on racial disparities in criminal justice system

In this posting at the Washington Post last year, Radley Balko assembled an extraordinary amount of research on crimianl justice administration under the headline "There’s overwhelming evidence that the criminal-justice system is racist. Here’s the proof." He has an update now posted here, headlined "21 more studies showing racial disparities in the criminal justice system," and it starts this way:

Last September, I put up a post listing more than 120 studies demonstrating racial bias in the criminal-justice system. The studies covered nearly every nook and cranny of our carceral system — from police to prosecutors to prisons; from misdemeanor offenses to the death penalty; from sentencing to parole; and from youth offenses to plea bargaining to clemency.  The post also included nine studies I could find that suggested racial bias was not a factor in some part of the criminal-justice system,

I also asked readers to send me any studies I missed, and I promised that I’d keep the list up to date as new studies came along.  So here is our first update.  I’ll both list the new studies here, and add them to the master list.  As before, if you know of something I’ve missed or are aware of a forthcoming study, please let me know via email.

Big batch of federal plea deals (with relatively low sentencing ranges) in college admissions scandal

This press release from the US Attorney's Office for the District of Massachusetts, headlined "14 Defendants in College Admissions Scandal to Plead Guilty," reports on the latest developments in the highest profile college fraud case I can recall. Here are the basics:

Thirteen parents charged in the college admissions scandal will plead guilty to using bribery and other forms of fraud to facilitate their children’s admission to selective colleges and universities. One coach also agreed to plead guilty.

The defendants were arrested last month and charged with conspiring with William “Rick” Singer, 58, of Newport Beach, Calif., and others, to use bribery and other forms of fraud to secure the admission of students to colleges and universities. The conspiracy involved bribing SAT and ACT exam administrators to allow a test taker to secretly take college entrance exams in place of students, or to correct the students’ answers after they had taken the exam, and bribing university athletic coaches and administrators to facilitate the admission of students to elite universities as purported athletic recruits....

All of the defendants who improperly took tax deductions for the bribe payments have agreed to cooperate with the IRS to pay back taxes.

Plea hearings have not yet been scheduled by the Court. Case information, including the status of each defendant, charging documents and plea agreements are available here.

The charge of conspiracy to commit mail fraud and honest services mail fraud provides for a maximum sentence of 20 years in prison, three years of supervised release, and a fine of $250,000 or twice the gross gain or loss, whichever is greater. The charge of conspiracy to commit money laundering provides for a maximum sentence of 20 years in prison, three years of supervised release, and a fine of $500,000 or twice the value of the property involved in the money laundering. The charge of conspiracy to defraud the United States provides for a maximum sentence of five years in prison, three years of supervised release, and a fine of $250,000. Sentences are imposed by a federal district court judge based upon the U.S. Sentencing Guidelines and other statutory factors.

Though the recitation of statutory maximum sentence sounds really serious, clicking through to the plea agreements reveals that the relatively low dollar amounts in these frauds entails relatively low guideline sentencing ranges. Specifically, for Felicity Huffman the government calculates in the plea agreement a guideline range at offense level 9 to result in a sentence range of 4 to 10 months. Notably, Huffman disputes the amount of "loss or gain" in her offense and suggests her guideline sentencing range is only 0 to 6 months.  And, significantly, the government agrees to advocate for only the low end of its calculated range, so it will be seeking only a four month sentence for Huffman.

I have not yet had a chance to look though all the other plea agreements, but I would guess their terms are comparable.  And especially because all these defendants are already suffering (and will continue to suffer) all sorts of non-traditional punishments, I am not really bother at all that they are not looking at severe guideline ranges.  But perhaps others are, and I welcome their comments on whether and how they think justice is being served in these cases now that we are moving into the sentencing phase.

Split Sixth Circuit panel debates status of lawsuit over Tennessee judicial order that gave reduced jail time to inmates agreeing to sterilization

Regular readers may recall (but still may not believe) prior posts here and here a few years ago about the Tennessee judge who had a standing court order offering 30 days off a defendant's jail time for "voluntarily" agreeing to have a vasectomy or birth control implant.  A lawsuit over this order in federal court made it to the Sixth Circuit and resulted in a split decision yesterday in Sullivan v. Benningfield, No. 18-5643 (6th Cir. April 4, 2019) (available here).  Here is how the majority opinion gets started:

In May 2017, Judge Sam Benningfield issued an order offering a 30-day sentencing credit to inmates in White County, Tennessee.  There was one condition: to obtain the credit, inmates had to submit to sterilization.  After public outcry about the sterilization-for-sentencing-credits program, Judge Benningfield issued a second order declaring that inmates could no longer enroll in the program, followed by a third order clarifying which of the inmates who initially enrolled could still receive the sentencing credit.  Within months, the Tennessee Legislature passed Senate Bill 2133, which made it illegal for courts to make sentencing determinations based on a defendant’s willingness to consent to sterilization.

Christopher Sullivan, Nathan Haskell, and William Gentry — inmates who refused to submit to a vasectomy and were consequently denied the sentencing credit that was awarded to inmates who underwent sterilization — challenged Judge Benningfield’s orders under the Equal Protection Clause, arguing that the orders subjected inmates to differential treatment on the basis of their procreative rights and their sex.  The district court found that the claims were moot in light of the passage of Senate Bill 2133 and Judge Benningfield’s second and third orders.  Because none of those subsequent developments in the law ended the differential treatment that plaintiffs challenge, we reverse and remand for consideration of plaintiffs’ claims on the merits.

Here is the start of the dissenting opinion:

None of the Plaintiffs suffered any injury in this case.  Plaintiffs’ sentences were not increased; rather they served their sentences as originally ordered.  Being offered contraceptive services, even being encouraged to accept free contraceptive services, is not an injury in fact for purposes of standing.  Plaintiffs did not receive the vasectomies and their right to procreate has not been hindered in any way.  Cf. Harris v. McRae, 448 U.S. 297 (1980) (explaining that even when the government favors childbirth over abortion by subsidizing one decision over the other; such regulation does not impinge on the constitutional freedom to make those decisions because it imposed no restrictions on access to abortions); Maher v. Roe, 432 U.S. 464, 474 (1977) (“The State may have made childbirth a more attractive alternative, thereby influencing the woman’s decision, but it has imposed no restriction on access to abortions that was not already there.”).

Plaintiffs also did not suffer any “differential treatment.”  See Scarbrough v. Morgan Cty. Bd. of Educ., 470 F.3d 250, 260 (6th Cir. 2006) (“The threshold element of an equal protection claim is disparate treatment....”).  Every inmate was received the same offer.  The fact that two of the three Plaintiffs exercised their right to refuse the offer and preserve their right to procreate actually underscores the point.  Cf. Corbitt v. New Jersey, 439 U.S. 212 (1978) (criminal defendants who refused plea deals to protect their right to trial by jury thereby facing a mandatory life sentence if convicted, rather than pleading guilty in return for a lesser sentence, were not denied equal protection because “[a]ll ... defendants [were] given the same choice”).  For these reasons, I would affirm the district court’s conclusion that the Plaintiffs’ lacked standing.  I therefore respectfully dissent.

Prior related post:

• Reduced jail time in Tennessee for inmates who ... agree to vasectomy or birth control implant!?!?!
• Tennessee judge formally reprimanded for offering reduced jail time for defendants agreeing to vasectomy or birth control implant 

"The Captive Lab Rat: Human Medical Experimentation in the Carceral State"

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

Human medical experimentation using captive, vulnerable subjects is not a relic of our American past. It is part of our present.  The extensive history of medical experimentation on the disabled, the poor, the mentally ill, and the incarcerated has been little explored. Its continuance has been even less discussed, especially in the legal literature.  The standard narrative of human medical experimentation ends abruptly in the 1970’s, with the uncovering of the Tuskegee syphilis study.  My research shows, however, that this narrative is incorrect and incomplete. The practice of experimenting on the captive and vulnerable persists, not just then but now.

Our current approach to human medical experimentation disregards informed consent and privacy, allowing the pharmaceutical and medical industries to play an outsized role in shaping clinical research.  The confusing amalgam of laws, rules and codes loosely governing such research almost entirely fail to regulate or prevent patient mistreatment and abuse.  Acquiring a true understanding of our system of mass incarceration requires us to unearth the hidden contours of our current experiments on the poor, the disabled, and the confined, and calls for a wholesale revision of the flawed legal and medical regime overseeing human medical experimentation.

"Decarcerating America: The Opportunistic Overlap Between Theory and (Mainly State) Sentencing Practise as a Pathway to Meaningful Reform"

The title of this post is the title of this new paper available via SSRN and authored by Mirko Bagaric and Daniel McCord. Here is its abstract:

Criminals engender no community sympathy and have no political capital. This is part of the reason that the United States has the highest prison population on earth, and by a considerable margin. Incarceration levels grew four-fold over the past forty years. Despite this, America is now experiencing an unprecedented phenomenon whereby many states are now simultaneously implementing measures to reduce prison numbers. The unusual aspect of this is that the response is not coordinated; nor is it consistent in its approach, but the movement is unmistakable.

This ground up approach to reducing prison numbers suffers from the misgiving that it is an ineffective solution to a complex issue. While prison numbers are reducing, it is at a glacial rate. Pursuant to current trends, it would take five decades to reach incarceration levels that are in keeping with historical levels in the United States, and which are in line with prison numbers in most other countries. The massive growth in prison numbers during the latter half of the twentieth century was as a result of a coordinated tough on crime strategy, spawned by the War on Drugs and the implementation of harsh mandatory sanctions. The response to these policy failings must be equally coordinated and systematic in order to be effective.

This Article provides the theoretical and empirical framework that can be used by lawmakers to tap into the community appetite to reduce prison numbers to make changes that are efficient and normatively sound, and which will significantly accelerate the decarceration process. In broad terms, the Article proposes a bifurcated system of sentencing, whereby sexual and serious violent offenders are imprisoned while other offenders (such as those who commit property, immigration and drug offenses) are dealt with by other forms of sanctions. The changes will especially benefit African American and Hispanics, given that they are incarcerated at disproportionately high levels. The empirical evidence also suggests that the proposed reforms will not result in an increased crime rate.

Spotlighting what the California AG could do to really change capital course in California

John Mills has this notable new Daily Journal commentary following up on recent California capital developments.  The main headline of the piece is "Newsom may have halted executions, but the machine keeps on ticking." And the subheadline carries forward the theme: "Gov. Gavin Newsom made history by declaring a moratorium on executions in California and even tweeting out images of the execution chamber being dismantled. Although I was in Sacramento, I missed the announcement. I was in court on one of my death penalty cases."

The full commentary give particular attention to what California's Attorney General might now do to really change the course of capital punishment in the state.  I recommend the full piece, and here are excerpts:

Attorney General Xavier Becerra is uniquely positioned to help bring it to a halt.  He has called Newsom's reprieve "a bold, new direction in California's march toward perfecting our search for justice."  I agree.

But Becerra's statement is remarkable because there is so much that more he could do, large and small, to support that effort beyond defending the governor's decree.  Taking up any one of them would be a much better use of state resources than defending hundreds of death sentences that will almost certainly never be carried out.

In the death penalty cases Becerra is currently defending, he could admit in court what Newsom acknowledged in his executive order: California "death sentences are unevenly and unfairly applied to people of color."  Supporters and opponents of the death penalty agree that the most obvious impact of race on death sentencing is the race of the victim. This effect is greatest when the defendant is black, and where a crime is committed is a much better predictor of a death sentence than the culpability of the perpetrator.  Tragically, we as a state have failed to divorce our country's racist history from our harshest penalties in the present.  Admitting as much would clear the way for the courts to hold that California's death penalty is inconsistent with our state's constitutional commitments to equal protection under the law.

Becerra could also confess other defects, any one of which would acknowledge the unconstitutionality of California's death penalty regime.  For example, by design, California's death sentencing statute reaches virtually every murder, as studies by preeminent experts have confirmed....

He could admit to other systemic problems, such as the inherent cruelty of languishing under a sentence of death for decades, the lack of required jury findings for aggravating circumstances, and arbitrariness in the process by which a person becomes eligible for execution.  Any one of these admissions would be well supported and, if also endorsed by the courts, would bring California's experiment with the death penalty to an end.

He could also take a more case-by-case approach.  The commentary in opposition to Newsom's moratorium has suggested that California is special, that whatever problems may be present with the death penalty in other states, just don't affect us.  That's a lie....

Even taking the modest steps of not appealing a grant of relief from a death sentence, waiving procedural defenses to claims challenging the legality of a sentence, or asking for an evidentiary hearing in cases where there are troubling claims about sentences of death would each be a leap towards ensuring that justice is done where the stakes are highest.

So far, Becerra has not taken that tack.  He has, instead, consistently opposed relief, invoked procedural barriers to reviewing the merits of constitutional claims, and failed to take steps that would expedite, rather than block the delivery of justice.

There are many other actors who could do many other things to mitigate the excesses and arbitrariness inherent to the use of the death penalty.  But the reforms proposed here could be accomplished with little or no cost and would demonstrate an executive branch unified in its determination to put justice first.  It is time for a bold new direction from the attorney general.

Prior related posts:

• New California Gov to order moratorium on executions in his state 
• Rounding up some commentary on Gov Newsom's formal halting of executions in California 
• California Gov Newsom, on heels of execution moratorium order, now talking up halt to any capital prosecutions 

Rounding-up some news and commentary as SCOTUS hears argument on latest round of capital insanity

Albert Einstein is generally credited with the aphorism that "the definition of insanity is doing the same thing over and over again, but expecting different results." That quote came to mind as I was thinking about the Supreme Court's consideration this morning of a Batson claim in Flowers v. Mississippi. Here is a brief accounting of just some of the backstory of this case (with emphasis added) from this SCOTUSblog post when cert was granted:

[T]he justices will once again review the case of Curtis Flowers, who was sentenced to death for an infamous quadruple murder at a furniture store in Winona, Mississippi.  Flowers was tried six times.  During the first four trials, prosecutor Doug Evans was twice found to have violated the constitutional ban on racial discrimination in selecting jurors: He had struck all 10 of the potential African-American jurors, while he used all of his strikes to remove African Americans from the jury pool in the third and fourth trials.  Flowers’ fifth trial deadlocked, but at his sixth trial, Evans allowed the first African-American juror to be seated but then struck the remaining five African-American jurors. 

Reviewing my blog archives, I noticed that it was nine years ago(!) that I blogged here about a local article and asked "Will sixth time be the charm in capital trial(s) of Curtis Flowers?"

Here are a few up-to-date discussions of and commentary on the case as it now comes before the US Supreme Court on the issue of whether the Mississippi Supreme Court properly applied Batson v. Kentucky in this version of the case:

• From ABC News, "After blacks kicked off juries, Mississippi death row inmate brings racial bias claim to Supreme Court"

• From The Atlantic, "A Racial Pattern So Obvious, Even the Supreme Court Might See It: Flowers v. Mississippi reveals a rickety American legal system."

• From CNN, "Mississippi death row inmate, after six trials, claims race discrimination"

• From Jurist, "The Supreme Court Must Stand for Equality in Upcoming Jury-Selection Case"

• From SCOTUSblog, "Argument preview: Justices to weigh allegations of racial discrimination in jury selection"

"Criminal justice reform must do more than shrink prison populations"

The title of this post is the headline of this recent Hill commentary authored by David Harding, Jeffrey Morenoff and Jessica Wyse. I recommend the full piece, and here are excerpts:

Senator Cory Booker (D-NJ) introduced the Next Step Act on March 7, an expansion of the criminal justice reform started with December’s First Step Act.  We applaud the Next Step Act for essential reforms, including reducing mandatory minimums for nonviolent drug offenses.

Yet, reversing the harms that have been created by decades of mass incarceration and an overly punitive and racially-biased criminal justice system requires more than reversing past policy mistakes.  Reform should go beyond shrinking prisons to providing those whose lives have been impacted by mass incarceration with real opportunities that lead to reintegration into society after release....

[R]eintegration requires more than just determination and work ethic, a key finding of our three-year study of the day-to-day lives of formerly incarcerated individuals. About a third struggle with hunger, homelessness and housing instability.

Chronic physical and mental health problems are also common.  Jobs are scarce for those with criminal records, who disproportionately move into communities like Detroit with high unemployment.  Half of those released from prison return within three years.  The period immediately after release is both a time of great risk and an opportunity to ensure that each person starts with a strong foundation of health and material security.

This “re-entry moment” is one of optimism, commitment to a new life and family support, but also a critical time of struggle with hunger, homelessness, employment and sobriety.  Investments in housing, health and employment services during the re-entry moment can create that foundation.

The Next Step Act contains worthy provisions for removing barriers to employment, including certain occupational licensing barriers for those with criminal records.  Yet our research shows that securing a job is only part of the reason for low rates of employment after release.

Education is essential to improving reintegration into the labor force.  Formerly incarcerated workers experience high rates of job turnover, in part because that is common in the low-skill jobs they find.  To improve employment for those like Randall, we should empower more community colleges to offer prison education with a seamless transition into community programs.

Time in prison can be better used to prepare for release.  Research shows that intensive treatment and prison education programs reduce recidivism, and incarcerated individuals are eager to take part in them.  Yet too many prisoners sit idle during their time in prison or engage in make-work jobs like cleaning and gardening....

Just as the federal government supports local efforts in education, health care and policing, it can support state and local reintegration efforts through funding, technical support and evaluation of promising programs.

Can we afford to support reintegration?  Each federal prisoner costs almost $32,000 a year, and in some states that figure is over $80,000.  The money saved by reducing imprisonment can create a virtuous cycle if it is reinvested in reintegration, which will result in fewer people returning to prison.

Kansas doctor gets federal LWOP sentence for abusive opioid prescribing

In the wake of Paul Manafort's sentencing, lots of folks are complaining about privileged white defendants getting a different kind of justice than others.  But this federal sentencing story from Kansas, headlined "Wichita doctor who sold pain-med prescriptions for cash sentenced to life in prison," reveals that, in some cases, even some privileged white defendant will be subject to the most severe sentences possible. Here are the details:

A Wichita doctor who illegally distributed addictive prescription drugs has been sentenced to life in federal prison.

Judge J. Thomas Marten said it is “quite clear” that Dr. Steven R. Henson, 57, wrote multiple prescriptions without a legitimate medical purpose and “abused his position of trust as a licensed physician.”

“I have sentenced people to life before,” Marten said in court Friday. “They were people who took guns and shot people.”

The investigation began after a pharmacist raised concerns that a doctor was over-prescribing controlled pain medications. One man died from an overdose after getting a prescription from the doctor.

“I want this case to send a message to physicians and the health care community,” U.S. Attorney Stephen McAllister said in a statement. “Unlawfully distributing opioids and other controlled substances is a federal crime that could end a medical career and send an offender to prison. We are dealing with an epidemic. Nationwide, more than 70,000 Americans died in 2017 from drug overdoses. That is more than all the American casualties during the war in Vietnam.”

Nicholas “Nick” McGovern died in July 2015 after overdosing on a mix of alprazolam and methadone prescribed to him by Henson. It was the count relating to McGovern’s death on which Henson was sentenced to life in prison....

Defense attorney Michael Thompson contended during sentencing that Henson wasn’t writing the prescriptions “to make easy money on the side” because he didn’t need to. He said that the doctor “tried to do what he thought was best for his patients.”

“I only had one goal in life as a physician,” Henson said, “and that was to take excellent care of patients and to increase their functionality,” adding that he tried to serve the under-served in the community and worldwide through mission trips.

But the judge cited Henson’s own testimony during the trial that he raised his fee from $50 to $300 to help pay rent on his medical office.

Federal investigators discovered that Henson would give pain-med prescriptions to patients for $300 in cash at a time, with few questions asked. The investigation began in 2014 with a pharmacist’s concern that a doctor was over-prescribing controlled medications. Prosecutors said Henson falsified patient records during the federal investigation in addition to obstructing investigators....

Henson was found guilty in October of two counts of conspiracy to distribute prescription drugs outside the course of medical practice; 13 counts of unlawfully distributing oxycodone; unlawfully distributing oxycodone, methadone and alprazolam; unlawfully distributing methadone and alprazolam, the use of which resulted in the death of a victim; presenting false patient records to investigators; obstruction of justice; and six counts of money laundering....

Defense attorneys asked for a 20-year prison sentence, saying that Henson led a “model life” outside of this case. “Maybe he wasn’t the best physician,” his attorney said. “He made some very serious mistakes. He wrote these prescriptions not out of greed, malice or ill intent. He was trying to help his patients. That was his goal.”

The judge said he had only met three or four people who he thought were “filled with evil and beyond redemption.”

“In some respects, what I’ve seen from you is worse, in that you don’t seem to understand,” Marten said. “I really don’t think that you get it. I think that in some respects you were numb to what you were doing over time. ... I just wonder if your practices have had any impact on you. It seems as if you’re still thinking, ‘Why am I here, what did I do wrong?’”

Just based on this news report, I think this case could probably sustain a whole book highlighting how this sentencing intersects with our modern opioid and overdose crisis and the broader debates over mass incarceration and equity and the trial penalty in sentencing.

Norfolk prosecutor appealing to Virginia Supreme Court after circuit judges denied effort to dismiss marijuana cases on appeal

In this post a few weeks ago, I report on an interesting tussle over low-level marijuana prosecutions in Norfolk, Virginia under the post title "Can judges, legally or functionally, actually refuse to allow a prosecutor to drop or dismiss charges as an exercise of discretion?".  What gives this story a bit of a "man-bites-dog" quality is the fact that a local prosecutor is seeking to dismiss a bunch of marijuana possession cases, but the local judges are refusing to do so.  Consequently, we get this week's fighting news under the headline "Norfolk's top prosecutor says he's taking fight over pot cases to state Supreme Court":

The city’s chief prosecutor said he will ask the state Supreme Court to force local judges into dismissing misdemeanor marijuana cases, effectively de-criminalizing the drug in Norfolk.  Commonwealth’s Attorney Greg Underwood on Friday sent a letter to the chief judge of the city’s highest court [available here], letting him and the seven other Circuit Court judges know that Underwood would appeal their collective decision to deny motions prosecutors have made over the past two months to abandon those cases.

Two months ago, Underwood announced he would undertake several efforts to achieve what he called criminal justice reform, including no longer prosecuting misdemeanor marijuana appeals.  But since then, at least four judges have denied prosecutors’ requests to dismiss marijuana charges. The tug-of-war adds to the confusion about whether it’s OK to have a small amount of weed in the city.  Norfolk police have said they will continue to cite people for misdemeanor marijuana possession as they’ve always done. Circuit Court judges appear determined to make sure offenders are tried, even if the commonwealth’s attorney refuses to prosecute them.

Both Underwood and the judges believe the other side is violating the state constitution’s division of powers, which mandates that “[t]he legislative, executive, and judicial departments shall be separate and distinct, so that none exercise the powers properly belonging to the others.”

Several, including Judge Mary Jane Hall, have said they believe the Norfolk commonwealth’s attorney is trespassing on the state legislature’s territory: making laws.  In turn, Underwood said the judges are preventing him from exercising the executive power voters gave him when they elected him the city’s top prosecutor.  Part of the job is prosecutorial discretion, or deciding which laws should be enforced, especially since he has a limited amount of resources....

Prosecuting people for having marijuana disproportionately hurts black people and does little to protect public safety, Underwood has said.  In 2016 and 2017, more than 1,560 people in Norfolk were charged with first- or second-offense marijuana possession, prosecutor Ramin Fatehi said during a hearing last month. Of them, 81 percent were black in a city that’s 47 percent white and 42 percent black.

This “breeds a reluctance on the part of African Americans, particular young African American men, to trust or cooperate with the justice system,” according to a Commonwealth’s Attorney’s Office memo announcing the policy changes. “Such prosecution also encourages the perception that the justice system is not focusing its attention on the legitimately dangerous crimes that regrettably are concentrated in these same communities.”

The judge, Hall, admitted Fatehi made an “extremely compelling case” with his statistics on racial disparities, but said he should pitch it to lawmakers in Richmond. “I believe this is an attempt to usurp the power of the state legislature,” Hall said.  “This is a decision that must be made by the General Assembly, not by the commonwealth’s attorney’s office.”

Until there’s a resolution, Underwood said in his letter, prosecutors will not handle misdemeanor marijuana appeals when simple possession is the only charge. Instead, the arresting officers will testify against the defendant without the guidance of a prosecutor — akin to the way traffic cases are heard.  This is a common practice in the lower District Court and something the Circuit Court judges have suggested. But circumventing the commonwealth’s attorney’s role in the long term would keep marijuana possession cases alive in Norfolk, thwarting Underwood’s criminal justice reform.

Prior related post:

• Can judges, legally or functionally, actually refuse to allow a prosecutor to drop or dismiss charges as an exercise of discretion?

"The Lingering Stench of Marijuana Prohibition: People with pot records continue to suffer, even in places where their crimes are no longer crimes."

The title of this post is the title of this great new article by Jacob Sullum at Reason. I recommend the article in full, as it goes through the expungement law of each state which has now fully legalized marijuana for adult use and tells stories of individuals still stuggling with the lingering impact of marijuana prohibition. Here is part of the start of the piece:

Franklin Roosevelt, who took office in the final year of Prohibition, issued some 1,300 pardons for alcohol-related offenses during his first three terms. As a 1939 report from the Justice Department explained, "pardon may be proper" in light of "changed public opinion after a period of severe penalties against certain conduct which is later looked upon as much less criminal, or as no crime at all." The report cited Prohibition as "a recent example."

That logic made sense to governors as well. When Indiana repealed its alcohol prohibition law in 1933, Gov. Paul McNutt (D) issued pardons or commutations to about 400 people who had been convicted of violating it. "If these men were kept in prison after the liquor law is repealed," he said, "they would be political prisoners."

Alcohol prohibition lasted 14 years. Marijuana prohibition has been with us almost six times as long. Police have arrested people for violating it about 20 million times in the last three decades alone. Many of those people were ultimately convicted of felonies that sent them to prison, although the vast majority were charged with simple possession and spent little or no time behind bars. Either way, marijuana offenders have had to contend with the lingering effects of a criminal record, which can shape people's lives long after they complete their sentences.

Depending on the jurisdiction and the classification of the offense, people who were caught violating marijuana laws may lose the right to vote, the right to own a gun, the right to drive a car (for up to a year), the right to live in the United States (for noncitizens), and the right to participate in a wide variety of professions that require state licenses. They may find it difficult to get a job, rent an apartment, obtain student loans, or travel to other countries. They may even be barred from coaching kids' sports teams or volunteering in public schools.

The employment consequences can be explicit, as with state laws that exclude people convicted of felonies from certain lines of work, or subtle, as with private businesses that avoid hiring people who have criminal records, possibly including arrests as well as convictions, because of liability concerns....

Such ancillary penalties seem especially unjust and irrational in the growing number of U.S. jurisdictions that have legalized marijuana for recreational use. In those places (which so far include 10 states, the District of Columbia, and the Northern Mariana Islands), people convicted under the old regime continue to suffer for actions that are no longer crimes.

California has gone furthest to address that problem. The state's 2016 legalization initiative authorized expungement of marijuana records, and a 2018 law will make that process easier. Demanding expungement as a remedy for injustice, activists in California emphasized the racially disproportionate impact of the war on weed: Black people are much more likely to have pot records than white people, even though they are only slightly more likely to be cannabis consumers.

Other states offer various forms of relief, ranging from generous to nearly nonexistent. All of them put the onus on prohibition's victims to seek the sealing or expungement of their criminal records, a process that can be complicated, expensive, and time-consuming....

People with marijuana records are looking for a way out in every state that has legalized recreational use, as the stories below show.

As some readers may recall, I wrote a paper last year on this topic under the title "Leveraging Marijuana Reform to Enhance Expungement Practices".  I have also covered these issues a whole lot over at Marijuana Law, Policy & Reform, and here is just a small part of that coverage:

• Center for Justice Reform at Vermont Law School conducting expungement days for old misdemeanor marijuana possession offenses
• "Some Prosecutors Are Erasing Old Weed Convictions. Why Isn’t Yours?
• Seattle officials stating they will retroactively vacate past misdemeanor marijuana-possession convictions
• Effective review of marijuana expungement prospects amidst nationwide state reforms
• "The Growing Movement for Marijuana Amnesty"
• "How Do You Clear a Pot Conviction From Your Record?"
• Another review of California's commitment to expunge past marijuana convictions
• California legislator proposing state law to automatically expunge past marijuana convictions
• San Francisco DA talking about proactively revising past marijuana convictions to better implement Prop 64
• Another good review of growing movement to eliminate past convictions with modern marijuana reforms
• Code for America helping with technology to enhance marijuana offense expungement efforts in California pilot program
• California officially makes expungement automatic for past marijuana offenses
• Interesting (and disappointing?) numbers from Washington after Gov promised to pardon thousands with prior marijuana convictions
• "High Time for Criminal Justice Reform: Marijuana Expungement Statutes in States with Legalized or Decriminalized Marijuana Laws"
• Michigan's Gov-elect talking up mass marijuana expungements in wake of state's legalization vote

"There's a gender imbalance in many African-American neighborhoods. Mass incarceration is largely to blame."

The title of this post is the sub-headline of this new Governing piece with the main headline "Where Have All the Black Men Gone?." Here is an excerpt:

Governing reviewed the latest population estimates for all black adults ages 18 to 64 in Census tracts where they totaled at least 2,000. In those neighborhoods, there were only a median of 81 black men for every 100 black women. The imbalance was greatest in 380 neighborhoods, where there were fewer than two adult black men for every three adult black women under age 65. In contrast to the numbers for adults, Census estimates show that nationally, there are marginally more African-American boys than girls under age 18....

The single biggest driver behind the absence of many black men is mass incarceration. A few academics have held up ratios of black men to women as a proxy for incarceration. Despite recent declines in prison populations, disparities remain massive. African-American males are imprisoned in state and federal facilities at six times the rate of white men, and about 25 times that of black women, according to figures from the Bureau of Justice Statistics.

Black men, underrepresented in the overwhelming majority of neighborhoods, are instead heavily concentrated in relatively few places, and those tend to be home to prisons. We identified 79 such Census tracts with more than twice as many black men as women....

The ramifications of all this are far-reaching. Partners and families of the “missing men” face a host of negative social and economic consequences, such as a shortage of income and assets.  Huge numbers of women have ties to incarcerated family members: One in every 2.5 black women has a family member in prison, more than three times the number for white women, according to a Scholars Strategy Network report.  For children, research suggests growing up with an incarcerated parent increases the likelihood of learning disabilities, behavioral problems and other challenges.

U.S. Commission on Civil Rights Public to hold public briefing on "Women in Prison: Seeking Justice Behind Bars"

As detailed in this press release, "On Friday, February 22, in Washington, DC, the U.S. Commission on Civil Rights will hold a public briefing to evaluate civil rights of women in prison, including deprivations of women’s medical needs that may violate the constitutional requirement to provide adequate medical care for all prisoners; implementation of the Prison Rape Elimination Act; and the sufficiency of programs to meet women’s needs after release."  Here is more:

The Commission will examine consequences of discipline practices in women’s prisons and the impact on families when women are placed far from home or parental rights are terminated despite their caregiving role.

Chair Catherine E. Lhamon said, “The United States has close to one-third of the world’s total incarcerated women, even though our country only has 5% of the world’s women. I look forward to receiving testimony about the experiences and conditions of confinement for women in prison, so the Commission can offer recommendations regarding adequate safeguards for the civil rights of incarcerated women.”

Commissioners will hear from women who have experienced incarceration, state and federal corrections officials, academic and legal experts, and advocates. Members of the public will be able to address the Commission in an open comment session. The Commission will accept written materials for consideration as we prepare our report; submit to womeninprison@usccr.gov no later than March 25, 2019.

The press release indicates all the witnesses scheduled to speak during these four panels:

Panel One: Overview of Women in Prison: Statistics, Constitutional Protections, Classification, and Family Disruption

Panel Two: An Analysis of Women’s Health, Personal Dignity, and Sexual Abuse in the U.S. Prison System

Panel Three: Review of Treatment of Women While Incarcerated

Panel Four: Rehabilitative Opportunities for Women in Prison & Life After Prison

This briefing will be live-streamed at this link, and the panelists' submitted written testimony are available here.

Notable new paper on "Race and Prosecution"

For (too) many years, the work of prosecutors tended to go under-discussed and under-studied in criminal justice reform circles.  But in recent years, lots and lots of folks are giving lots and lots more attention to the work of prosecutors.  As but one example, the John Jay College of Criminal Justice's Institute for Innovation in Prosecution has a notable new publication from its Executive Session on Reimagining the Role of the Prosecutor in the Community.  This new paper, titled simply "Race and Prosecution," is authored by Angela J. Davis, John Chisholm, and David Noble. It gets started this way:

The long-standing inequities in the American criminal justice system and society as a whole cannot be blamed solely on prosecutors.  However, prosecutors do not operate in a temporal vacuum. Every action that a prosecutor’s office takes is colored by this country’s historical record of oppressing racial minorities.  In its present state the justice system both reflects and exacerbates our societal ills.  Prosecutors seeking to address systemic disproportionality and disparity must first come to appreciate how these phenomena came to be. This paper aims to unearth the roots of racial inequality in the United States, discuss how those roots produced racial disparities in the criminal justice system, and provide guidance on how the prosecutor’s office can transform those disparities into positive change in policy and practice. 

Highlighting how much punishment comes with the misdemeanor process

LawProf Alexandra Natapoff has a terrific new book titled “Punishment Without Crime: How Our Massive Misdemeanor System Traps the Innocent and Makes America More Unequal,” and you can read part of the book's introduction here at the publisher's website. And over the weekend the New York Post published this commentary penned by Natapoff under the headlined "How a simple misdemeanor could land you in jail for months." Here are excerpts:

Just before Christmas, Janice Dotson-Stephens died in a San Antonio jail.  The 61-year-old grandmother had been arrested for trespassing, a class B misdemeanor in Texas. She couldn’t afford the $300 bail, and a mere $30 payment to a bail bondsman would have let her out.  She stayed in jail for nearly five months, waiting for her case to be handled, before she died. Her family has sued, and an independent agency is currently investigating the cause of her death. This is how the American misdemeanor system quietly and carelessly ruins millions of lives.

Dotson-Stephens was a victim of a vast misdemeanor machinery that routinely and thoughtlessly locks up millions of people every year.  America is already infamous for mass incarceration — with 1.5 million state and federal prisoners, we put more people in prison than any other country on the planet.  But nearly 11 million people pass through over 3,000 US jails every year, according to a 2016 report by the Department of Justice. On any given day, there are approximately 700,000 people in jail.  One-quarter of them are there for misdemeanor offenses; the majority of them, like Dotson-Stephens, have not been convicted of anything and are therefore presumed innocent.

Given the minor nature of most misdemeanors, it is shocking how often they send people to jail.  Amazingly, people routinely get locked up when they are arrested for petty offenses even if they could not be sentenced to jail for the offense itself.

Albert Florence was arrested in New Jersey for failing to pay an outstanding civil fine, a transgression for which he could not have been incarcerated.  Nevertheless, he spent six days in jail where officials strip-searched him twice, inspected his genitals and subjected him to a delousing shower.  Turns out it was a mistake — Mr. Florence had paid the fine years before but the statewide database had not been updated.  Was this legal?  It was.  When the US Supreme Court heard Florence’s case in October 2011 in Florence v. Board of Chosen Freeholders of County of Burlington, it decided in April 2012 that the strip searches were constitutional.

The most common punishment for a misdemeanor conviction is probation and a fine, but jail remains routine.  In Richmond, Virginia, Robert Taylor, an indigent veteran, was sentenced to 20 days in jail for driving on a license that been suspended multiple times because he could not afford to pay traffic court fines.  In Beaufort County, South Carolina, a homeless man spent 30 days in jail and was sentenced to time served for the charge of trespassing at a McDonald’s.

Poverty isn’t a crime, but the misdemeanor machinery often treats it like one, incarcerating people solely because they cannot afford to pay a fine or fee.  In Augusta, Georgia, Tom Barrett was homeless, living off food stamps and the money he earned from selling his blood plasma.  He was caught stealing a $2 can of beer.  He couldn’t afford the $50 fee to apply for a public defender, so he represented himself, pleaded guilty and was placed on probation.  As part of that probation, he was required to pay over $400 in fines and fees every month.  When he couldn’t, he was sentenced to 12 months in jail. “I should not have taken that beer.  I was dead wrong,” says Barrett. “But to spend 12 months in jail … it didn’t seem right.”...

The misdemeanor system is enormous.  Thirteen million misdemeanor cases are filed every year — that’s 80 percent of state criminal dockets. This is how the American criminal system works most of the time for most people.  And its tendency to incarcerate affects millions of families — over 400,000 children have a parent in jail....

The misdemeanor phenomenon has been largely overlooked, overshadowed by the sheer harshness of its felony counterpart.  And some of that is fair enough.  Thirty-year drug sentences, solitary confinement and the death penalty do indeed make misdemeanor punishments seem petty.  But make no mistake, they are not lenient.  People are being stripped of their liberty and their money. If we really want to roll back mass incarceration and improve our criminal system, we need to shrink the massive misdemeanor pipeline and break its expensive and destructive habit of putting people in jail with so little justification.

What might Martin Luther King seek as the next step in federal criminal justice reform?

A busy day has meant that I only just now finished my annual MLK day tradition of listening to the full "I Have A Dream" speech Dr. King delivered in the "symbolic shadow" of Abraham Lincoln in August 1963. (I like to think that the fact I still get choked up is says more about MLK than about me.)  In prior posts on this day, some of which are linked below, I have quoted from Dr. King's speeches and writings and also have asked questions about the intersection of the civil rights movement and criminal justice reform.  Today I will do both by first briefly quoting from Dr. King's famous Letter from a Birmingham Jail: 

I am in Birmingham because injustice is here.  Just as the prophets of the eighth century B.C. left their villages and carried their "thus saith the Lord" far beyond the boundaries of their home towns, and just as the Apostle Paul left his village of Tarsus and carried the gospel of Jesus Christ to the far corners of the Greco Roman world, so am I compelled to carry the gospel of freedom beyond my own home town....

I cannot sit idly by in Atlanta and not be concerned about what happens in Birmingham.  Injustice anywhere is a threat to justice everywhere.  We are caught in an inescapable network of mutuality, tied in a single garment of destiny.  Whatever affects one directly, affects all indirectly.  Never again can we afford to live with the narrow, provincial "outside agitator" idea.  Anyone who lives inside the United States can never be considered an outsider anywhere within its bounds....

How does one determine whether a law is just or unjust?  A just law is a man made code that squares with the moral law or the law of God.  An unjust law is a code that is out of harmony with the moral law.  To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law.  Any law that uplifts human personality is just.  Any law that degrades human personality is unjust.... Sometimes a law is just on its face and unjust in its application....

Human progress never rolls in on wheels of inevitability; it comes through the tireless efforts of men willing to be co workers with God, and without this hard work, time itself becomes an ally of the forces of social stagnation.  We must use time creatively, in the knowledge that the time is always ripe to do right.  Now is the time to make real the promise of democracy and transform our pending national elegy into a creative psalm of brotherhood.  Now is the time to lift our national policy from the quicksand of racial injustice to the solid rock of human dignity.

In the near aftermath of the enactment of the FIRST STEP Act, I am eager to praise Congress for passing a law that "uplifts human personality" and seeks to lift our national prison policy from the quicksand of too many petty injustices to a more solid rock of human dignity.  But, to be true to its name, the FIRST STEP Act should be only the first of a number of federal criminal justice reforms that could further "make real the promise of democracy and transform our pending national elegy into a creative psalm of brotherhood."  Especially because I sincerely believe we all exist in an "inescapable network of mutuality, tied in a single garment of destiny," I am eager to hear what others think the great Martin Luther King would advocate as the next step in federal criminal justice reform.

Links to some prior MLK Day posts:

• Should criminal justice reform be the new civil rights movement?
• Honoring MLK by asking hard questions
• Reflecting on race and criminal justice realities to honor MLK's legacy
• Another reminder of race and criminal justice realities to honor MLK's legacy
• Is there less discussion of race and criminal justice since Obama's election?
• NPR's Fresh Air celebrates MLK Day by discussing The New Jim Crow
• Fittingly for MLK day, Prez Obama laments class and race disparities from pot prohibition
• MLK marijuana mash-up: "I Have A Dream..." we are free at last from pot prohibition
• Some still timely phrases from MLK's "I Have A Dream" speech for advocates of criminal justice reforms 
• Some new quotes at the end of the latest MLK day

"Sharks and Minnows in the War on Drugs: A Study of Quantity, Race and Drug Type in Drug Arrests"

The title of this post is the title of this important new article authored by Joseph Kennedy, Isaac Unah and Kasi Wahlers now available via SSRN. Here is its abstract:

Conventional wisdom has it that in the war on drugs you have to catch small fish in order to catch big fish.  But what if the vast majority of drug arrests were for very small fish, and disproportionately brown ones at that?  This Article is the first to conclusively establish that the war on drugs is being waged primarily against those possessing or selling minuscule amounts of drugs.  Two out of three drug offenders arrested by non-federal law enforcement possess or sell a gram or less at the time of arrest.  Furthermore, about 40% of arrests for hard drugs such as cocaine, heroin, and meth/amphetamine are for trace amounts — a quarter of a gram or less. These findings are the result of a first of its kind study of drug arrest data from National Incident-Based Reporting System (“NIBRS”) that analyzed all drug arrests reported for the years 2004, 2008, and 2012.  The resulting data set contained over a million cases, and useable quantity data was found in over 700,000 cases, making this study the most comprehensive study of drug arrest quantity undertaken to date by orders of magnitude.

This Article also challenges assumptions that the disproportionate representation of offenders of color among those incarcerated for drug offenses results from their greater involvement in selling larger quantities of drugs.  Offenders of color are by and large not more serious offenders in terms of quantity.  They just possess and sell drugs that are the most frequent target of arrest.  Blacks are disproportionately arrested overall because we arrest more for “Black drugs” than for “White drugs.”  Racial disparities might vanish or reverse if we were to make as many meth/amphetamine and heroin arrests as crack cocaine arrests.

After confirming that felony liability is typically triggered for selling — and in the case of hard drugs even possessing — such minuscule amounts, this Article argues that such offenses should be downgraded to misdemeanors for political, criminological and philosophical reasons.  Such liability is doubly unjust in light of the racial disparities revealed in the patterns of arrest.  A drug war premised on hunting great white sharks instead scoops up mostly minnows, and disproportionately ones of color. Felony liability for the two-thirds of offenders arrested for these gram-or-less amounts should be eliminated.

"Impact of Risk Assessment on Judges’ Fairness in Sentencing Relatively Poor Defendants"

The title of this post is the title of this new paper now available via SSRN authored by Jennifer Skeem, Nicholas Scurich and John Monahan.  Here is its abstract:

The increasing use of risk assessment algorithms in the criminal justice system has generated enormous controversy. Advocates emphasize that algorithms are more transparent, consistent, and accurate in predicting re-offending than judges’ unaided intuition, while skeptics worry that algorithms will increase racial and socioeconomic disparities in incarceration.  Ultimately, however, judges make decisions — not algorithms.

In the present study, real judges (n=340) with criminal sentencing experience participated in a controlled experiment to test whether the provision of risk assessment information interacts with a defendant’s socioeconomic class to influence sentencing decisions.  Results revealed that risk assessment information reduced the likelihood of incarceration for relatively affluent defendants, but the same risk assessment information increased the likelihood of incarceration for relatively poor defendants.  This finding held after controlling for the sex, race, political orientation, and jurisdiction of the judge. It appears that under some circumstances, risk assessment information can increase sentencing disparities.

"Top Trends in State Criminal Justice Reform, 2018"

The title of this post is the title of this two-page briefing paper authored by Nicole Porter for The Sentencing Project which highlights significant criminal justice policy changes at the state level in 2018. Here is how the document gets started:

The United States is a world leader in incarceration rates and keeps nearly 7 million persons under criminal justice supervision. More than 2.2 million are in prison or jail, while 4.6 million are monitored in the community on probation or parole. Changes in sentencing law and policy, not changes in crime rates, have produced the nation’s high rate of incarceration. Scaling back incarceration will require changing policy and practice to reduce prison populations, intentionally address racial disparity, and eliminate barriers to reentry. In recent years a number of states have enacted reforms designed to reduce the scale of incarceration and impact of the collateral consequences of a felony conviction. This briefing paper describes key reforms undertaken in 2018.

Notably, this short document makes no mention of state level marijuana reforms, even though many are motivated, at least in part, by interest in addressing racial disparities and eliminating barriers to reentry. This reinforces my long-standing view that there is a tangible disconnect between criminal justice reform movements and marijuana reform movements.

"Wealth-Based Penal Disenfranchisement"

The title of this post is the title of this notable new article now on SSRN authored by Beth Colgan. Here is its abstract:

This Article offers the first comprehensive examination of the way in which the inability to pay economic sanctions—fines, fees, surcharges, and restitution — may prevent people of limited means from voting.  The Supreme Court has upheld the constitutionality of penal disenfranchisement upon conviction, and all but two states revoke the right to vote for at least some offenses. The remaining jurisdictions allow for re-enfranchisement for most or all offenses under certain conditions.  One often overlooked condition is payment of economic sanctions regardless of whether the would-be voter has the ability to pay before an election registration deadline.  The scope of wealth-based penal disenfranchisement is grossly underestimated, with commentators typically stating that nine states sanction such practices.  Through an in-depth examination of a tangle of statutes, administrative rules, and policies related to elections, clemency, parole, and probation, as well as responses from public disclosure requests and discussions with elections and corrections officials and other relevant actors, this Article reveals that wealth-based penal disenfranchisement is authorized in forty-eight states and the District of Columbia.

After describing the mechanisms for wealth-based penal disenfranchisement, this Article offers a doctrinal intervention for dismantling them.  There has been limited, and to date unsuccessful, litigation challenging these practices as violative of the Fourteenth Amendment’s equal protection and due process clauses.  Because voting eligibility is stripped of its fundamental nature for those convicted of a crime, wealth-based penal disenfranchisement has been subject to the lowest level of scrutiny, rational basis review, leading lower courts to uphold the practice.  This Article posits that these courts have approached the validity of wealth-based penal disenfranchisement through the wrong frame — the right to vote — when the proper frame is through the lens of punishment.  This Article examines a line of cases in which the Court restricted governmental action that would result in disparate treatment between rich and poor in criminal justice practices, juxtaposing the cases against the Court’s treatment of wealth-based discrimination in the Fourteenth Amendment doctrine and the constitutional relevance of indigency in the criminal justice system broadly.  Doing so supports the conclusion that the Court has departed from the traditional tiers of scrutiny.  The resulting test operates as a flat prohibition against the use of the government’s prosecutorial power in ways that effectively punish one’s financial circumstances unless no other alternative response could satisfy the government’s interest in punishing the disenfranchising offense.  Because such alternatives are available, wealth-based penal disenfranchisement would violate the Fourteenth Amendment under this approach.

Spotlighting criminal-justice debt and its profound impact on the poorest Americans

The New York Times magazine has this lengthy new article about criminal justice debt under this full headline: "How Cities Make Money by Fining the Poor: In many parts of America, like Corinth, Miss., judges are locking up defendants who can’t pay — sometimes for months at a time." I recommend the piece in full, and here is a snippet:

No government agency comprehensively tracks the extent of criminal-justice debt owed by poor defendants, but experts estimate that those fines and fees total tens of billions of dollars.  That number is likely to grow in coming years, and significantly: National Public Radio, in a survey conducted with the Brennan Center for Justice and the National Center for State Courts, found that 48 states increased their civil and criminal court fees from 2010 to 2014.  And because wealthy and middle-class Americans can typically afford either the initial fee or the services of an attorney, it will be the poor who shoulder the bulk of the burden....

In areas hit by recession or falling tax revenue, fines and fees help pay the bills.  (The costs of housing and feeding inmates can be subsidized by the state.)  As the Fines and Fees Justice Center, an advocacy organization based in New York, has documented, financial penalties on the poor are now a leading source of revenue for municipalities around the country.  In Alabama, for example, the Southern Poverty Law Center took up the case of a woman who was jailed for missing a court date related to an unpaid utility bill.  In Oregon, courts have issued hefty fines to the parents of truant schoolchildren. Many counties around the country engage in civil forfeiture, the seizure of vehicles and cash from people suspected (but not necessarily proven in court) of having broken the law.  In Louisiana, pretrial diversion laws empower the police to offer traffic offenders a choice: Pay up quickly, and the ticket won’t go on your record; fight the ticket in court, and you’ll face additional fees.

“What we’ve seen in our research is that the mechanisms vary, depending on the region,” says Joanna Weiss, co-director of the Fines and Fees Justice Center.  “But they have one thing in common: They use the justice system to wring revenue out of the poorest Americans — the people who can afford it the least.”  Aside from taxes, she says, “criminal-justice debt is now a de facto way of funding a lot of American cities.”

The jailing of poor defendants who cannot pay fines — a particularly insidious version of this revenue machine — has been ruled unconstitutional since a trio of Supreme Court cases spanning the 1970s and early 1980s....  Still, decades after those cases were decided, the practice of jailing people who cannot pay persists, not least because Supreme Court decisions do not always make their way to local courts.  “Precedent is one thing,” says Alec Karakatsanis, executive director of Civil Rights Corps, a Washington-based nonprofit.  “The way a law is written is one thing. The way a law is actually experienced by poor people and people of color is another.”...

In 2010, the American Civil Liberties Union detailed evidence of what it calls “modern-day ‘debtors’ prisons’ ” — essentially, courts operating in the same way as Judge Ross’s in Corinth — in Georgia, Michigan, Louisiana, Ohio and Washington State.  “If you spent a few weeks driving from coast to coast, you might not find similar policies in place in every single county,” Sam Brooke, the deputy legal director of the Southern Poverty Law Center’s economic-justice program, told me.  “But every other county? Probably.  This is a massive problem, and it’s not confined to the South.  It’s national.”...

In recent years, the Southern Poverty Law Center and other organizations, including the A.C.L.U. and Karakatsanis’s Civil Rights Corps, have been filing class-action lawsuits against dozens of courts across the South and Midwest and West, arguing that local courts, in jailing indigent defendants, are violating the Supreme Court rulings laid down in Williams, Tate and Bearden.  The lawsuits work: As a settlement is negotiated, a judge typically agrees to stop jailing new inmates for unpaid fines or fees.  “No one wants to admit they’ve knowingly acted in this manner,” says Brooke, who partnered with Karakatsanis on lawsuits in Alabama and filed several elsewhere in the South. “So they tend to settle quickly.” The trouble is locating the offending courts.

"Predictions of Dangerousness in Sentencing: Déjà Vu All Over Again"

The title of this post is the title of this new paper authored by Michael Tonry no available via SSRN. Here is its abstract:

Predictions of dangerousness are more often wrong than right, use information they shouldn’t, and disproportionately damage minority offenders.  Forty years ago, two-thirds of people predicted to be violent were not.  For every two “true positives,” there were four “false positives.”  Contemporary technology is little better: at best, three false positives for every two true positives.  The best-informed specialists say that accuracy topped out a decade ago; further improvement is unlikely. 

All prediction instruments use ethically unjustifiable information.  Most include variables such as youth and gender that are as unjust as race or eye color would be.  No one can justly be blamed for being blue-eyed, young, male, or dark-skinned.  All prediction instruments incorporate socioeconomic status variables that cause black, other minority, and disadvantaged offenders to be treated more harshly than white and privileged offenders.  All use criminal history variables that are inflated for black and other minority offenders by deliberate and implicit bias, racially disparate practices, profiling, and drug law enforcement that targets minority individuals and neighborhoods.

Spotlighting the enduring challenges posed by risk-assessment mechanisms built into FIRST STEP Act

LawProf Brandon Garrett has this important new Slate commentary headlined "The Prison Reform Bill’s Implementation Will Be Tricky; Here’s how to ensure it’s a success." I recommend the piece in full, and here are excerpts:

The First Step Act, the federal prison reform bill that President Donald Trump signed into law on Friday, represents a bipartisan and major effort at making the criminal justice system fairer.  This step will only be a baby step, however, if the engine that drives the entire piece of legislation — risk assessments of federal prisoners’ likelihood to reoffend — is not used carefully and with sound scientific and public oversight.

The statute ... allows federal prisoners, who now number about 180,000, to earn credits toward early release based on rehabilitative programs and their risk of reoffending.  The statute states that an algorithm will be used to score every prisoner as minimum, low, medium, or high risk.  But the legislation does not say how this algorithm will be designed. The Senate’s version of the First Step Act, which refers to “risk” 100 times, calls for a “risk and needs assessment system” to be developed in 210 days, and then made public and administered to every federal prison within the following 180 days.

That may not be nearly enough time to carefully study all of the questions raised by creating such a massive system.  Take as an example the experience in Virginia, which has been hailed as a national model and “leading innovator” by the American Law Institute for using risk assessment to divert low-risk offenders from prison.  Virginia spent several years developing its risk assessment system.  The Virginia Criminal Sentencing Commission carefully obtained public input, scientific evaluations, and pilot studies, before implementing it statewide.

But in a recent series of studies of the effort to divert prisoners in Virginia, John Monahan, Alexander Jakubow, Anne Metz, and I have found that there is wide variation in how courts and judges apply this risk assessment....  People are not algorithms.  The statute’s fairness will hinge on the discretion that prison officials exercise, informed by the scores from a risk assessment but also by their own judgment.  The First Step Act’s success will similarly depend on resources for real rehabilitative programs.  It calls for evidence-based evaluation of such programs, but that research will also take time.

While using an evidence-informed tool can be better than simply leaving everything to prison officials’ discretion, there needs to be more than buy-in by the decision-makers — the right tools need to be used.  Michelle Alexander and others have raised concerns, for example, with risk assessments that rely on information about prior arrests or neighborhood information that can produce stark racial bias.  The Senate’s version of the act speaks to the potential for bias and asks the comptroller general to conduct a review after two years to identify “unwarranted disparities.”  The act also calls for an independent review body that includes researchers who have studied risk assessment and people who have implemented it.  These are important steps.  Involvement of scientists and the public will be needed to consider whether invidious and potentially unconstitutional discrimination results — otherwise, protracted constitutional litigation challenging these risk assessments will be a foregone conclusion.

Still, there is much that is positive about the bill’s many provisions dealing with risk.  The First Step Act emphasizes not just recidivism but also programs that support rehabilitation.  It is noteworthy that the legislation calls for re-evaluation of prisoners each year so that risk scores are not set in stone. All prisoners are able to reduce their classification.  This should be taken seriously.  The risk of any person may decline dramatically over time simply as a matter of age, as the U.S. Sentencing Commission documented in a study last year.

The statute also makes the attorney general the risk assessor in chief — with input from the independent scientific reviewers — of the risk assessment used on 180,000 prisoners each year.  That scientific input is critical, and it should be solicited from the broader scientific community.  It’s also worth noting that the Department of Justice has recently shut down key science advisory groups; this law hopefully takes an important first step toward bringing science back in.

"Bias In, Bias Out"

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

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

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

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