Sentencing Law and Policy

"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.

"George H.W. Bush’s biggest failure? The war on drugs."

The title of this post is the headline of this Washington Post commentary authored by historian Matthew Pembleton.  Here are excerpts:

And Bush’s complicated legacy does include much good, from his handling of the end of the Cold War to his support for climate science and the Americans With Disabilities Act. But it also includes some bad — specifically, a profound escalation in the War on Drugs. Ronald Reagan may have reoriented public attitudes about drugs when he pronounced in 1982, “Drugs are bad, and we’re going after them . . . And we’re going to win the war on drugs.” But, it was Bush — and later, Bill Clinton — who put real resources into the effort.

When Bush took office, the federal drug control budget was around $5 billion. When he left office in 1993, it was over $12 billion. This was the sharpest escalation in the history of the drug war and it locked the country into a strategy of punishment, deterrence and intolerance. Based on instinct rather than evidence, Bush’s approach did little to alleviate the public health crisis of addiction or halt the flow of drugs to American shores. And we remain trapped within this largely punitive approach today. So while we remember Bush as a “gentle soul,” we should also remember his role in fomenting a drug war that harmed millions of American citizens, particularly in communities of color.

In a tale retold quite a bit over the last few days, one of those citizens was an 18-year-old D.C. resident named Keith Jackson, who was arrested as part of a White House publicity stunt. In September 1989, Bush astonished the American public by brandishing a bag of crack cocaine during a nationally televised address. The drug, a seemingly bemused president remarked, “looked like candy, but it’s turning our cities into battle zones, and it’s murdering our children.”

Rather than address the underlying poverty, despair or thrill-seeking that drives destructive drug use, Bush sought to wipe out the drug menace by punishing everyone involved to the fullest extent of the law and doubling down on policing. The solution, Bush said, was “more prisons, more jails, more courts, more prosecutors,” and a $1.5 billion increase in federal police spending, the greatest single increase in the history of drug enforcement.

Jackson, meanwhile, was a hapless pawn in Bush’s theatrics. When the DEA learned that Bush’s people wanted to use crack seized near the White House as a prop for the speech, they lured the local high school student to Lafayette Square, even giving him directions to get him there. An obvious setup, the case was subsequently thrown out by two juries, but Jackson was eventually sentenced to a mandatory 10 years for selling to an undercover agent in the months leading up to his fateful September arrest.

Bush was widely mocked for the incident but remained unrepentant and paid little price. That’s because the fundamental strategy of escalating the War on Drugs enjoyed widespread bipartisan support, including significant buy-in from the black political class.... The instinct to punish drug users, particularly the poor, runs deep in American political thought, and the consensus supporting these tough-on-crime attitudes continued to harden as Bush championed the growing War on Drugs. On the first anniversary of Bush’s speech, Los Angeles police chief Daryl Gates told the Senate that casual drug users “ought to be taken out and shot.” This wholly punitive approach reached its apotheosis with the 1994 Clinton crime bill and its notorious “three-strikes” provision.

"Tipping Point: A Majority Of States Abandon Life-Without-Parole Sentences For Children"

The title of this post is the title of this new document from the The Campaign for the Fair Sentencing of Youth. Here is its executive summary:

A majority of states now ban life without parole for children or have no one serving the sentence.  A combination of judicial decisions and state legislative reforms have reduced the number of individuals serving by 60 percent in just three years, and that number continues to decline.  Today, approximately 1,100 people are serving life without parole for crimes committed as children.

For the approximately 1,700 individuals whose life-without-parole sentences have been altered through legislative reform or judicial resentencing to date, the median sentence nationwide is 25 years before parole or release eligibility.  Nearly 400 people previously sentenced to life without parole for crimes committed as children have been released from prison to date.  Despite national momentum rejecting life-without-parole sentences for children, racial disparities continue to worsen; of new cases tried since 2012, approximately 72 percent of children sentenced to life without parole have been Black — as compared to approximately 61 percent before 2012.

"What the Feds Can Do to Rein in Local Mercenary Criminal Justice"

The title of this post is the title of this new article authored by Wayne Logan now available via SSRN.  Here is its abstract:

Although physical and psychological harms caused by local police are the most common bases for federal intervention and reform efforts, this Article focuses on the financial harms local police can cause.  As the U.S. Department of Justice’s Ferguson Report and numerous other studies highlight, local police departments are front-line players in a broader governmental strategy to generate revenue from individuals ensnared in the criminal justice system.  The strategy is problematic for a variety of reasons, including the skewing effect it has on enforcement priorities and the major negative personal impact it has on those targeted (very often, people of color and economically disadvantaged individuals).  Aggravating matters, the mercenary practices of local criminal justice system actors are complemented by private business entities that secure significant profits from the business local governments send their way.  This Article surveys the adverse consequences of local mercenary criminal justice for governance, residents and their communities; the many, quite distinct obstacles that federal reform efforts face; and the several possible avenues for reform and their likelihood of success.

"Layers of Bias: A Unified Approach for Understanding Problems With Risk Assessment"

The title of this post is the title of this article recently published by the journal Criminal Justice and Behavior and authored by Laurel Eckhouse, Kristian Lum, Cynthia Conti-Cook and Julie Ciccolini.  Here is the article's abstract:

Scholars in several fields, including quantitative methodologists, legal scholars, and theoretically oriented criminologists, have launched robust debates about the fairness of quantitative risk assessment. As the Supreme Court considers addressing constitutional questions on the issue, we propose a framework for understanding the relationships among these debates: layers of bias.

In the top layer, we identify challenges to fairness within the risk-assessment models themselves.  We explain types of statistical fairness and the tradeoffs between them.  The second layer covers biases embedded in data.  Using data from a racially biased criminal justice system can lead to unmeasurable biases in both risk scores and outcome measures. The final layer engages conceptual problems with risk models: Is it fair to make criminal justice decisions about individuals based on groups?  We show that each layer depends on the layers below it: Without assurances about the foundational layers, the fairness of the top layers is irrelevant.

Spotlighting the still-challenging politics that surround the intersection of marijuana reform, criminal justice reform and racial inequities

Today's must-read for both marijuana reform and criminal justice reform fans is this lengthy new Politico article fully headlined "Racial Justice and Legal Pot Are Colliding in Congress: The latest fight over criminal justice reform is over allowing felons access to newly legal aspects of the cannabis industry. Lawmakers are getting woke — slowly." I recommend this piece is full, and here are some extended excerpts:

Thanks to Senate Majority Leader Mitch McConnell, the [Farm] bill includes an amendment that would permanently remove hemp from the list of federally banned drugs like heroin and cocaine, freeing hemp from the crippling legal stigma that has made it economically unviable for the past four decades.  But that amendment also includes a little-noticed ban on people convicted of drug felonies from participating in the soon-to-be-federally-legal hemp industry.

Added late in the process, apparently to placate a stakeholder close to McConnell, the exception has angered a broad and bipartisan coalition of lawmakers, hemp industry insiders and religious groups who see it as a continuing punishment of minorities who were targeted disproportionately during the War on Drugs and now are being denied the chance to profit economically from a product that promises to make millions of dollars for mostly white investors on Wall Street....

[L]awmakers like McConnell, who have discovered the economic benefits of relaxing prohibitions on products such as hemp, have nevertheless quietly found ways, like the Farm Bill felon ban, to satisfy the demands of their anti-legalization constituents, to the chagrin of pro-cannabis lawmakers and activists. After POLITICO Magazine reported on the drug-crime felon ban in August, three senators — Cory Booker (D-New Jersey), Rand Paul (R-Kentucky), and Jeff Merkley (D-Oregon) — wrote to Senate leadership demanding the removal of the ban, citing its “disparate impact on minorities,” among other concerns.

“I think there’s a growing recognition of the hypocrisy and unfairness of our nation’s drug laws, when hundreds of thousands of Americans are behind bars for something that is now legal in nine states and something that two of the last three Presidents have admitted to doing,” Booker told POLITICO Magazine. “If we truly want to be a just and fair nation, marijuana legalization must be accompanied by record expungement and a focus on restorative justice.”...

[The] once-radical notion that felons ought to gain priority for entry into a newly legal industry — instead of being shut out — has quietly gained bipartisan support on Capitol Hill, albeit not among Republican leadership.  In the House, this mounting opposition to the continuing punishment of felons first cropped up in September when the Judiciary Committee passed its first pro-marijuana bill.  It would expand access to scientific study of the cannabis plant, a notion agreed-upon by marijuana’s supporters and detractors alike.  However, Democrats almost killed the bill because it included language that barred felons (and even people convicted of misdemeanors) from receiving licenses to produce the marijuana.

Felon bans are commonplace in legal marijuana programs.  Every state has some version of it, but most of them have a five- or 10-year limit.  But the felon bans in both the Senate’s Farm Bill and the House’s marijuana research bill are lifetime bans, and the House bill includes misdemeanors, too. “Any restriction on misdemeanors goes in the exact contrary direction of the Second Chance Act,” said Rep. Jerry Nadler (D-New York), who will become chairman of the Judiciary Committee in January.  His criticism was echoed by Steve Cohen (D-Tennessee), who sought to have the misdemeanor language struck from the bill until its sponsor, Matt Gaetz (R-Florida), promised to address that language when it comes to the House floor.

In the Senate, the movement to protect the legal marijuana trade has taken the form of the proposed bipartisan Gardner-Warren STATES Act, which would maintain the status quo of federal non-interference of state-legal programs that was upended when then-Attorney General Jeff Sessions repealed the Cole Memo, an Obama-era document that outlined a hands-off approach to state-legal programs.  Booker’s Marijuana Justice Act would adopt California-style principles and apply them federally, going far beyond the STATES Act, removing marijuana from Schedule I (defined as having no medical value and a high risk of abuse) and eliminating criminal penalties for marijuana.  But unlike other pro-marijuana bills, it would also deny federal law-enforcement grants to states that don’t legalize marijuana; direct federal courts to expunge marijuana convictions; and establish a grant-making fund through the Department of Housing and Urban Development for communities most affected by the War on Drugs.

Booker’s bill has become popular among Senate Democrats.  Ron Wyden, Kirsten Gillibrand, Bernie Sanders, Kamala Harris, Jeff Merkley and Elizabeth Warren have signed on as co-sponsors — a list that looks a lot like a lineup of presumed candidates for the 2020 Democratic presidential primary.  “For too long, the federal government has propped up failed and outdated drug policies that destroy lives,” Wyden told POLITICO Magazine.  “The War on Drugs is deeply rooted in racism.  We desperately need to not only correct course, but to also ensure equal justice for those who have been disproportionately impacted. People across America understand and want change. Now, Congress must act.”

Recent polling shows that Americans agree with Wyden — to a point.  There is a widespread acceptance of legalizing marijuana.  Gallup has been tracking this number since 1969, when only 12 percent of Americans believed in legalizing it; in October, Gallup put the number at 64 percent, the highest ever number recorded.  Pew says it is 62 percent, also its highest number ever. 

But there is far less acceptance of the idea that the War on Drugs has had an adverse impact on poorer, minority communities, or that there should be some form of compensation in terms of prioritized access to the new industry. A  poll conducted by Lake Research Partners, a progressive DC-based polling firm, earlier this year on the “Politics of Marijuana Legalization in 2018 Battleground Districts” found that 62 percent of the 800 likely voters surveyed agreed with the idea “we need legalization to repair the financial and moral damage of the failed War on Drugs.”  However, when the pollsters added a racial component to this message — whether the respondents felt that the marijuana prohibition “unfairly target[s] and destroy[s] minority communities” — only 40 percent found that message to be “very convincing.”...

[M]any members of the Congressional Black Caucus have been slow to support marijuana legalization. But the CBC finally made its position on this issue clear in June when its 48-member caucus voted in an “overwhelming majority” to support policies beyond mere decriminalization: “Some of the same folks who told African Americans ‘three strikes and you’re out’ when it came to marijuana use and distribution, are now in support of decriminalizing the drug and making a profit off of it,” CBC Chairman Cedric L. Richmond, Democrat from Louisiana said at the time. “The Congressional Black Caucus supports decriminalizing marijuana and investing in communities that were destroyed by the War on Drugs…” 

Arguments for legalizing marijuana haven’t been entirely persuasive to sway many in the conservative black community, but re-framing it in the context of civil rights has brought many around to this new way of thinking. “What is moving conservative black and brown folks is this idea that we’re on the horizon of marijuana legalization,” according to Queen Adesuyi of the Drug Policy Alliance. “So the idea is in order to do this in a way that is equitable and fair, you have to start on the front end of alleviating racially biased consequences of prohibition while we’re legalizing — and that means expungement, re-sentencing, community re-investment, and looking at where marijuana tax revenue can go, and getting rid of barriers to the industry.”

Now that Democrats have won control of the House, co-founder of the Cannabis Caucus, Rep. Earl Blumenauer (D-Oregon), is poised to implement his blueprint for how the House under Democratic leadership would legalize marijuana at the federal level.  Racial justice is front-and-center in that plan.  The memo he sent to Democratic leadership reads in part, “committees should start marking up bills in their jurisdiction that would responsibly narrow the marijuana policy gap — the gap between federal and state marijuana laws — before the end of the year. These policy issues… should include: Restorative justice measures that address the racial injustices that resulted from the unequal application of federal marijuana laws.”

Cross-posted at Marijuana Law, Policy and Reform.

"Women’s Mass Incarceration: The Whole Pie 2018"

The Prison Policy Initiative has today posted an updated version of its remarkable incarceration "pie" graphic and associated report on the particulars of who and how women are incarcerated in the United States.  Here is part of the report's introductory text and subsequent discussion:

With growing public attention to the problem of mass incarceration, people want to know about women’s experience with incarceration.  How many women are held in prisons, jails, and other correctional facilities in the United States?  And why are they there?  How is their experience different from men’s?  While these are important questions, finding those answers requires not only disentangling the country’s decentralized and overlapping criminal justice systems, but also unearthing the frustratingly hard to find and often altogether missing data on gender.

This report provides a detailed view of the 219,000 women incarcerated in the United States, and how they fit into the even broader picture of correctional control.  This 2018 update to our inaugural Women’s Whole Pie report pulls together data from a number of government agencies and calculates the breakdown of women held by each correctional system by specific offense.  The report, produced in collaboration with the ACLU’s Campaign for Smart Justice, answers the questions of why and where women are locked up:

In stark contrast to the total incarcerated population, where the state prison systems hold twice as many people as are held in jails, incarcerated women are much more evenly split between state prisons and local jails.  This has serious consequences for incarcerated women and their families.

Women’s incarceration has grown at twice the pace of men’s incarceration in recent decades, and has disproportionately been located in local jails.  The explanation for exactly what happened, when, and why does not yet exist because the data on women has long been obscured by the larger scale of men’s incarceration....

Looking at the big picture shows that a staggering number of women who are incarcerated are not even convicted: a quarter of women who are behind bars have not yet had a trial.  Moreover, 60% of women under local control have not been convicted of a crime and are awaiting trial....

Avoiding pre-trial incarceration is uniquely challenging for women.  The number of unconvicted women stuck in jail is surely not because courts are considering women, who are generally the primary caregivers of children, to be a flight risk.  The far more likely answer is that incarcerated women, who have lower incomes than incarcerated men, have an even harder time affording cash bail.  When the typical bail amounts to a full year’s income for women, it’s no wonder that women are stuck in jail awaiting trial....

So what does it mean that large numbers of women are held in jail — for them, and for their families?  While stays in jail are generally shorter than in stays in prison, jails make it harder to stay in touch with family than prisons do.  Phone calls are more expensive, up to $1.50 per minute, and other forms of communication are more restricted — some jails don’t even allow real letters, limiting mail to postcards.  This is especially troubling given that 80% of women in jails are mothers, and most of them are primary caretakers of their children.  Thus children are particularly susceptible to the domino effect of burdens placed on incarcerated women....

Too often, the conversation about criminal justice reform starts and stops with the question of non-violent drug and property offenses.  While drug and property offenses make up more than half of the offenses for which women are incarcerated, the chart reveals that all offenses — including the violent offenses that account for roughly a quarter of all incarcerated women — must be considered in the effort to reduce the number of incarcerated women in this country. This new data on women underlines the need for reform discussions to focus not just on the easier choices but on the policy changes that will have the most impact....

Even the “Whole Pie” of incarceration above represents just one small portion (17%) of the women under correctional supervision, which includes over a million women on probation and parole.  Again, this is in stark contrast to the general incarcerated population (mostly men), where a third of all people under correctional control are in prisons and jails.

Michelle Alexander frets about "The Newest Jim Crow"

Michelle Alexander has this notable new New York Times opinion piece headlined ""The Newest Jim Crow: Recent criminal justice reforms contain the seeds of a frightening system of 'e-carceration'." I recommend the piece in full, and here are excerpts:

Since 2010, when I published “The New Jim Crow” — which argued that a system of legal discrimination and segregation had been born again in this country because of the war on drugs and mass incarceration — there have been significant changes to drug policy, sentencing and re-entry, including “ban the box” initiatives aimed at eliminating barriers to employment for formerly incarcerated people.

This progress is unquestionably good news, but there are warning signs blinking brightly. Many of the current reform efforts contain the seeds of the next generation of racial and social control, a system of “e-carceration” that may prove more dangerous and more difficult to challenge than the one we hope to leave behind.

Bail reform is a case in point.  Thanks in part to new laws and policies — as well as actions like the mass bailout of inmates in New York City jails that’s underway — the unconscionable practice of cash bail is finally coming to an end. In August, California became the first state to decide to get rid of its cash bail system; last year, New Jersey virtually eliminated the use of money bonds.

But what’s taking the place of cash bail may prove even worse in the long run. In California, a presumption of detention will effectively replace eligibility for immediate release when the new law takes effect in October 2019.  And increasingly, computer algorithms are helping to determine who should be caged and who should be set “free.”  Freedom — even when it’s granted, it turns out — isn’t really free.

Under new policies in California, New Jersey, New York and beyond, “risk assessment” algorithms recommend to judges whether a person who’s been arrested should be released. These advanced mathematical models — or “weapons of math destruction” as data scientist Cathy O’Neil calls them — appear colorblind on the surface but they are based on factors that are not only highly correlated with race and class, but are also significantly influenced by pervasive bias in the criminal justice system.  As O’Neil explains, “It’s tempting to believe that computers will be neutral and objective, but algorithms are nothing more than opinions embedded in mathematics.”

Challenging these biased algorithms may be more difficult than challenging discrimination by the police, prosecutors and judges. Many algorithms are fiercely guarded corporate secrets.  Those that are transparent — you can actually read the code — lack a public audit so it’s impossible to know how much more often they fail for people of color.

Even if you’re lucky enough to be set “free” from a brick-and-mortar jail thanks to a computer algorithm, an expensive monitoring device likely will be shackled to your ankle — a GPS tracking device provided by a private company that may charge you around $300 per month, an involuntary leasing fee.  Your permitted zones of movement may make it difficult or impossible to get or keep a job, attend school, care for your kids or visit family members. You’re effectively sentenced to an open-air digital prison, one that may not extend beyond your house, your block or your neighborhood.  One false step (or one malfunction of the GPS tracking device) will bring cops to your front door, your workplace, or wherever they find you and snatch you right back to jail.

Who benefits from this?  Private corporations.  According to a report released last month by the Center for Media Justice, four large corporations — including the GEO Group, one of the largest private prison companies — have most of the private contracts to provide electronic monitoring for people on parole in some 30 states, giving them a combined annual revenue of more than $200 million just for e-monitoring.  Companies that earned millions on contracts to run or serve prisons have, in an era of prison restructuring, begun to shift their business model to add electronic surveillance and monitoring of the same population.  Even if old-fashioned prisons fade away, the profit margins of these companies will widen so long as growing numbers of people find themselves subject to perpetual criminalization, surveillance, monitoring and control....

Many reformers rightly point out that an ankle bracelet is preferable to a prison cell.  Yet I find it difficult to call this progress.  As I see it, digital prisons are to mass incarceration what Jim Crow was to slavery.

If you asked slaves if they would rather live with their families and raise their own children, albeit subject to “whites only signs,” legal discrimination and Jim Crow segregation, they’d almost certainly say: I’ll take Jim Crow.  By the same token, if you ask prisoners whether they’d rather live with their families and raise their children, albeit with nearly constant digital surveillance and monitoring, they’d almost certainly say: I’ll take the electronic monitor.  I would too.  But hopefully we can now see that Jim Crow was a less restrictive form of racial and social control, not a real alternative to racial caste systems.  Similarly, if the goal is to end mass incarceration and mass criminalization, digital prisons are not an answer. They’re just another way of posing the question.

Some insist that e-carceration is “a step in the right direction.”  But where are we going with this? A growing number of scholars and activists predict that “e-gentrification” is where we’re headed as entire communities become trapped in digital prisons that keep them locked out of neighborhoods where jobs and opportunity can be found.

If that scenario sounds far-fetched, keep in mind that mass incarceration itself was unimaginable just 40 years ago and that it was born partly out of well-intentioned reforms — chief among them mandatory sentencing laws that liberal proponents predicted would reduce racial disparities in sentencing.  While those laws may have looked good on paper, they were passed within a political climate that was overwhelmingly hostile and punitive toward poor people and people of color, resulting in a prison-building boom, an increase in racial and class disparities in sentencing, and a quintupling of the incarcerated population.

"The Biased Algorithm: Evidence of Disparate Impact on Hispanics"

The title of this post is the title of this new article available via SSRN authored by Melissa Hamilton.  Here is its abstract:

Algorithmic risk assessment holds the promise of reducing mass incarceration while remaining conscious of public safety.  Yet presumptions of transparent and fair algorithms may be unwarranted. Critics warn that algorithmic risk assessment may exacerbate inequalities in the criminal justice system’s treatment of minorities.  Further, calls for third party auditing contend that studies may reveal disparities in how risk assessment tools classify minorities. A recent audit found a popular risk tool overpredicted for Blacks.

An equally important minority group deserving of study is Hispanics.  The study reported herein examines the risk outcomes of a widely used algorithmic risk tool using a large dataset with a two-year followup period. Results reveal cumulative evidence of (a) differential validity and prediction between Hispanics and non-Hispanics and (b) algorithmic unfairness and disparate impact in overestimating the general and violent recidivism of Hispanics. 

Latest analysis and discussion of Ohio criminal justice reform ballot initiative known as Issue 1

I have blogged here and elsewhere about the interesting and intricate drug sentencing and prison reform initiative on the November 2018 ballot in Ohio.  Originally called the "Neighborhood Safety, Drug Treatment and Rehabilitation Amendment," the initiative now is just known within Ohio as Issue 1.  The Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law has been hosting public panels about Issue 1 under the title Ballot Insights, and has created a Resources Page for Issue 1 and a Commentary Page on Issue 1. 

The last pre-election DEPC public panel on Issue 1 is taking place tomorrow, November 1 at 10 am (register here), at the Kirwan Institute for the Study of Race and Ethnicity at The Ohio State University.  The all-star panelists who will be speaking are:

• Sarah Andrews, Director, Ohio Criminal Sentencing Commission
• Alex Kreit, Professor, Thomas Jefferson School of Law; visiting professor at The Ohio State University Moritz College of Law
• Carol O’Brien, Delaware County Prosecutor
• Reginald Wilkinson, President, Connecting the Dots, LLC; former Director of the Ohio Department of Rehabilitations and Corrections

Kyle Strickland, Senior Legal Research Associate at the Kirwan Institute will be moderating this great panel. I know Kyle will also be bringing an informed perspective to the discussion because he is a co-author of this great new report titled "Race & Criminal Justice: Ohio Issue 1 and Beyond."  Here is part of the conclusion of that report: 

Many communities are rightfully asking the question of why is the opiate epidemic the catalyst for modern criminal justice reform?  At the core of this question is the notion that broad-sweeping reform efforts are much more politically feasible when the issue also impacts communities with privileged identities — whether that be race, economic status, or party affiliation.  In the future, we should not wait for collective tipping points to address systemic inequities because policies that disproportionately harm marginalized communities harm us all.

Now that reform efforts are in motion, it is critical that a racial lens be applied to policies moving forward.  A reduction in racial disparities in the criminal justice system should not be an assumed outcome of reform.  Disparate outcomes will likely re-emerge in the health care system, community based corrections, and all other institutions without intentional effort paid to undoing our legacy of racism and discrimination.  A more equitable system will require explicit interventions to address systemic discrimination and interpersonal biases at every level.

Regardless of the outcome in November, communities must demand that those implementing Issue 1 or other criminal justice reform efforts be held accountable to reducing racial disparities and repairing the intergenerational harm caused by mass incarceration and decades of disinvestment.

Prior related posts:

• Interesting and intricate Ohio drug sentencing initiative poised to qualify for November 2018 ballot 
• Ohio gubernatorial candidate talking up criminal justice reform while advocating for state constitutional drug sentencing initiative
• Events and resources covering Ohio sentencing and prison reform ballot initiative known now as Issue 1 
• Excited to hear Shon Hopwood speak about earned prison credit as Ohio considers ballot initiative known now as Issue 1
• Despite fear-mongering opposition ads, drug sentencing and prison reform initiative polling strong in Ohio
• Should a state judge be campaigning against a state criminal justice reform initiative when talking to potential jurors?!?!?

Guest post series on Chicago "stash-house sting" litigation: Part 3 on "A Path for Future Litigation"

In this prior post, I explained that Alison Siegler, Clinical Professor of Law and Director of the University of Chicago Law School's Federal Criminal Justice Clinic (FCJC), sent me an extraordinary update on the extraordinary litigation her clinic has done in response to so-called "stash house stings" in which federal agents lure defendants into seeking to rob a (non-existent) drug stash-house.  (In this post last year, I highlighted this lengthy Chicago Tribune article, headlined "ATF sting operation accused of using racial bias in finding targets, with majority being minorities," providing an overview on this topic.)  As explained in the prior post, Alison's update is so detailed and interesting, I have divided it into three posts to cover all she has to report.  The first post covered "Sentencing Victories," the second covered "Legal Victories" and this final one set out "A Path for Future Litigation":

A Path for Future Litigation

The new legal standards forged by these three courts of appeals [discussed in this prior post] make it markedly easier for criminal defendants to obtain discovery in support of racially selective law enforcement claims, which in turn makes it possible for defendants to win motions to dismiss on the merits.

The lower discovery standard also supports a lower merits standard for motions to dismiss for racially selective law enforcement than the standard set in Armstrong.  Under Armstrong, a defendant must provide “clear evidence” of discriminatory effect and discriminatory intent to prevail on a selective prosecution claim on the merits.  Armstrong, 517 U.S. at 465.  As Sellers notes, the Supreme Court explicitly rested that merits standard on “the presumption that prosecutors ‘properly discharged their official duties.’” Sellers, 2018 WL 4956959 at *6 (quoting Armstrong, 517 U.S. at 464).  Courts have made clear that such a presumption simply does not apply in the selective law enforcement context.  See, e.g., Davis, 793 F.3d at 721; Washington, 869 F.3d at 220–21; Sellers, 2018 WL 4956959 at *6.  Accordingly, there is no basis for applying the “clear evidence” standard to a motion to dismiss for selective law enforcement.  Instead, courts should apply the ordinary preponderance of the evidence standard.

In our Motions to Dismiss, the FCJC asked the district court judges to apply a preponderance of the evidence standard rather than a clear evidence standard.  See, e.g., Defendants’ Amended Reply in Support of Motion to Dismiss for Racially Selective Law Enforcement at 2­–4, United States v. Brown, 12-CR-632 (N.D. Ill. Nov. 6, 2017) (Dkt. No. 630).  Although the only judge to issue a merits ruling rejected our proposed lower standard, see Brown, 299 F. Supp. 3d at 995–97, Sellers supports the FCJC’s position that the standard for obtaining dismissal based on a selective enforcement claim must be less onerous than the merits standard for a selective prosecution claim.

Lawyers in other jurisdictions can use the litigation and precedents discussed above and in Parts 1 and 2 of this guest post series to fight race discrimination by law enforcement in their own cases.  Here are a few ideas:

• Hire experts and gather data about racial disparities created by law enforcement in fake stash house robbery cases, gun cases, and others.
• Litigate motions to obtain discovery regarding selective law enforcement in stash house cases and others, and ask district court judges to apply the lower evidentiary standard set by the Seventh, Third, and Ninth Circuits.
  • Appeal denials of selective enforcement discovery motions and advocate for other courts of appeals to adopt the lower discovery standard.
• Litigate motions to dismiss for selective law enforcement in stash house cases and others, and ask district court judges to apply a preponderance of the evidence standard rather than a clear evidence standard.
  • Appeal denials of such motions to dismiss and advocate for other courts of appeals to adopt a preponderance of the evidence standard on the merits.
• Use the plea agreements in the Chicago cases to advocate to U.S. Attorney’s Offices to dismiss mandatory minimum charges in fake stash house robbery cases.
• Use the example of the Chicago U.S. Attorney’s Office to convince other USAOs to cease bringing fake stash house robbery cases altogether.
• Use the time served sentences imposed in the Chicago cases to advocate for lower sentences in stash house cases elsewhere. Sentencing memoranda prepared by the Federal Criminal Justice Clinic in several of the Chicago cases can be found at these links:
• U.S. v. Alexander, 11-CR-148—Sentencing Memorandum (redacted):  Mr. Alexander was originally facing a 25-year mandatory minimum and sentencing as a career offender. He was released on bond in 2016. In 2018, he was sentenced to 68 months’ time served.
• U.S. v. Cousins, 12-CR-865—Memorandum Opposing Leadership Role Enhancement:  Mr. Cousins was originally facing a 25-year mandatory minimum. He was released on bond in 2015. In 2018, the judge declined to impose a leadership role enhancement and sentenced him to 28 months’ time served.
• U.S. v. Mayfield, 15-CR-497—Sentencing Memorandum:  (Mr. Mayfield was originally convicted at trial and sentenced to 26 years in prison. The verdict was reversed on appeal. In 2018, he was sentenced to 114 months’ time served.)

Prior related posts:

• Guest post series on Chicago "stash-house sting" litigation: Part 1 on "Sentencing Victories"
• Guest post series on Chicago "stash-house sting" litigation: Part 2 on "Legal Victories"

"Who Locked Us Up? Examining the Social Meaning of Black Punitiveness"

The title of this post is the title of this new quasi-book review authored by Darren Lenard Hutchinson now on SSRN.  Here is its abstract:

Mass incarceration has received extensive analysis in scholarly and political debates. Beginning in the 1970s, states and the federal government adopted tougher sentencing and police practices that responded to rising punitive sentiment among the general public.  Many scholars have argued that U.S. criminal law and enforcement subordinate people of color by denying them political, social, and economic well-being.  The harmful and disparate racial impact of U.S. crime policy mirrors historical patterns that emerged during slavery, Reconstruction, and Jim Crow.

In his Pulitzer Prize-winning book Locking Up Our Own: Crime and Punishment in Black America, James Forman, Jr. demonstrates that many blacks supported aggressive anticrime policies that gave rise to mass incarceration.  On the surface, this observation potentially complicates arguments that conceive of U.S. criminal law and enforcement as manifestations of white supremacist political power.  Forman’s failure to provide a comprehensive analysis of the racist dimensions of punitive sentiment makes his research subject to such an interpretation.  A deeper analysis, however, reconciles Forman’s research with antiracist accounts of U.S. crime policy. 

In particular, social psychology literature on implicit bias, social dominance orientation, and right-wing authoritarianism provides a helpful context for situating black punitive sentiment within antisubordination criminal law theory.  These psychological concepts could link punitiveness among blacks with outgroup favoritism and in-group stigma that derive from structural inequality and antiblack social stigma.  The social psychology of punitive sentiment, resilience of white supremacy, and conservative political ideology will likely present substantial barriers to the merciful approach to criminality that Forman proposes.

Guest post series on Chicago "stash-house sting" litigation: Part 2 on "Legal Victories"

In this prior post, I explained that Alison Siegler, Clinical Professor of Law and Director of the University of Chicago Law School's Federal Criminal Justice Clinic, sent me an extraordinary update on the extraordinary litigation her clinic has done in response to so-called "stash house stings" in which federal agents lure defendants into seeking to rob a (non-existent) drug stash-house.  (In this post last year, I highlighted this lengthy Chicago Tribune article, headlined "ATF sting operation accused of using racial bias in finding targets, with majority being minorities," providing an overview on this topic.)  As explained in the prior post, Alison's update is so detailed and interesting, I have divided into three posts all she has to report.  The first post covered "Sentencing Victories," and this one covers "Legal Victories":

Legal Victories

The FCJC’s stash house litigation has also changed the law in a way that makes racially selective enforcement challenges easier to litigate going forward, which in turn will result in better outcomes and lower sentences for clients around the country.  Last week, the Ninth Circuit built on the framework created in a stash house case litigated by the FCJC and became the third federal court of appeals to institute a lower standard for defendants seeking discovery regarding racially selective law enforcement.

In United States v. Davis, 793 F.3d 712 (7th Cir. 2015), a stash house case that was litigated and argued by the FCJC on appeal, the en banc Seventh Circuit became the first court of appeals in the country to relax the legal standard for defendants seeking discovery to support a race discrimination claim against law enforcement officers.  Davis eroded the onerous standard for obtaining discovery regarding racially discriminatory practices set by the Supreme Court in United States v. Armstrong, 527 U.S. 456 (1996).  Davis went to great lengths to distinguish racially selective law enforcement claims from the racially selective prosecution claim in Armstrong, holding, “[T]he sorts of considerations that led to the outcome in Armstrong do not apply to a contention that agents of the FBI or ATF engaged in racial discrimination when selecting targets for sting operations.” Davis, 793 F.3d at 721.  Davis represented a sea change in the law — for the previous 20 years, courts had routinely denied the claims of defendants seeking discovery in support of selective prosecution and selective law enforcement claims alike.

Last year, the Third Circuit joined the Seventh Circuit in drawing a distinction between the two types of claims.  See United States v. Washington, 869 F.3d 193, 216 (3d Cir. 2017). But the Third Circuit took this distinction even further, definitively eliminating two requirements that had made it virtually impossible for defendants to obtain discovery in the twenty years since Armstrong.  Specifically, Washington jettisoned both (1) the requirement under the discriminatory effect prong that defendants provide some evidence that “similarly situated persons of a different race or equal protection classification were not arrested or investigated by law enforcement,” and (2) the requirement that defendants “provide ‘some evidence’ of discriminatory intent. Id. at 221.  The Third Circuit’s elimination of these onerous standards represented an enormous development in the law of discovery for selective enforcement cases.

In United States v. Sellers, 2018 WL 4956959 (9th Cir. Oct. 15, 2018), the Ninth Circuit built on the framework created in Davis and extended in Washington.  Interestingly, the Ninth Circuit joined the Third Circuit’s holdings without emphasizing or even mentioning that those holdings had dramatically lowered the legal standard.  First, the Ninth Circuit joined the Third in eliminating the biggest barrier to proving the first prong — discriminatory effect — by holding that a defendant could obtain discovery in support of a selective enforcement claim without providing “evidence that similarly-situated individuals of a different race were not investigated or arrested.” Id. at *6.  Second, the Ninth Circuit held that a defendant need not present evidence of both discriminatory effect and discriminatory intent to obtain discovery, but may simply present “some evidence” supporting one prong or the other. Id.  Sellers thus significantly expanded district court discretion to grant discovery.  Judge Nguyen’s concurrence went still further, explaining that evidence that law enforcement was targeting neighborhoods of color is itself proof of discriminatory effect. Id. at *11 (Nguyen, J., concurring).

Prior related post:

• Guest post series on Chicago "stash-house sting" litigation: Part 1 on "Sentencing Victories"

"How ‘End Mass Incarceration’ Became a Slogan for D.A. Candidates"

The title of this post is the title of this notable new New York Times article. Here is how the lengthy piece gets started:

The Dallas County district attorney, Faith Johnson, often reminds voters that she recently won a rare murder conviction against a white police officer who shot into a car full of teenagers, killing a black 15-year-old boy. “They couldn’t get that conviction in New York. They couldn’t get it in California. They couldn’t get it in Ohio,” Ms. Johnson, a Republican running to remain in office in November, told the mostly black crowd at a recent candidate forum at the African American Museum. “We got it here in Dallas County.”

But then her Democratic opponent took the microphone and pledged to be even tougher on the police. And he promised that if elected, he would reduce the number of Dallas County residents who end up behind bars. “In the first 90 days, I’m going to give you a plan to end mass incarceration,” said John Creuzot, a former judge who hopes to unseat Ms. Johnson in November.

In the past, candidates running to be district attorney — if they were challenged at all — touted their toughness on crime. But now district attorneys’ races have become more competitive, attracting large donations and challengers running on pledges to transform the criminal justice system.

The focus on local races comes as overhaul efforts have stalled on the federal level. Attorney General Jeff Sessions has vowed to aggressively prosecute nonviolent drug crimes, and President Trump has praised policing tactics such as stop-and-frisk.

The push to rethink criminal justice practices has been embraced by liberals and some conservatives, and polls show a majority of voters favor reducing the number of nonviolent drug offenders who are sent to prison. But disagreement remains about exactly how to revamp district attorney offices, which handle most criminal cases in the country.

In Jefferson County, Ala., the Democratic district attorney candidate, Danny Carr, has floated the idea of treating the possession of small amounts of marijuana more like a traffic violation. In San Antonio, Joe Gonzales, also a Democrat, has pledged to rehabilitate more nonviolent offenders, rather than locking them up.

Others are proposing more aggressive measures. Rachael Rollins in Boston, who has no Republican challenger in November, released a list of low-level crimes, such as disturbing the peace, that she would decline to prosecute altogether.

Rastafarian musician gets eight-year sentence after being found with 2.89 pounds of marijuana in car

I sometimes see reporters and others suggest that personal marijuana possession and use has already become essentially de facto legal throughout the country.  This story of a sentencing in Mississippi this week, headlined "Jamaican-born musician sentenced to 8 years in prison for marijuana he legally obtained," puts the lie to this suggestion. Here are the details:

A Jamaican-born musician convicted of drug trafficking in Madison County for marijuana he said he obtained legally in Oregon for his personal use received an eight-year prison sentence without parole Monday. Madison County Circuit Judge William Chapman said Patrick Beadle, 46, of Oregon, faced a maximum 40 years in prison after a jury convicted him in July under the state's drug trafficking law.

Beadle, who performs under the name BlackFire, was charged with drug trafficking, although he said the marijuana he had with him was for his personal use and was obtained legally in Oregon where medical marijuana was legalized in 1998. Oregon voters approved recreational use of marijuana in 2014. Prosecutors admitted there was no evidence to prove Beadle was trafficking in drugs other than the amount of marijuana, 2.89 pounds, and that it was concealed in his vehicle.

Chapman departed from giving Beadle the 10 to 40 years under the drug trafficking law, but he wouldn't reduce it to simple possession because he said the jury convicted Beadle under the drug trafficking law. Chapman said Beadle would have to serve the eight year sentence day-for-day since the law doesn't allow for parole or probation....

Patrick Beadle said he has a medical marijuana card from Oregon to treat chronic pain in both knees where cartilage has worn down from his years of playing college basketball. Marijuana use is also common among Rastafarians.

Beadle said he was traveling March 8, 2017, southbound on I-55 after entering Madison County and at about 10 a.m., he was pulled over on I-55 near Canton by a Madison County deputy for the alleged traffic violation of crossing over the fog line, the painted line on the side of a roadway. He disputes the deputy's assertion that he crossed over the fog line. He said his dreadlocks and out-of-state auto tag made him a target for racial profiling....

In the Beadle case, then-Deputy Joseph Mangino found no large sums of money, drug paraphernalia or weight measuring scale to substantiate the trafficking charge. "This is not the typical defendant you see. "He is not a drug dealer," said Randy Harris, who was Beadle's trial attorney.

This lengthy (pre-sentencing) article from another local paper provides a few more details and some context about this disconcerting case:

Beadle was southbound on I-55 and had crossed from Yazoo into Madison County. A few seconds later, a Madison County sheriff’s deputy pulled him over.  A search of Beadle’s car revealed 2.8 pounds of marijuana.

Following a trial in July, a jury took 25 minutes to find him guilty of charges that could land him in prison for up to 40 years without parole.  Beadle, who is African American, and his allies say the fact that he was pulled over is a clear case of racial profiling while law enforcement officials maintain that a traffic violation led to the stop....

In Madison County, drug dispositions between 2013 and 2017 -- that is, drug charges settled in those years -- neared 1,000, based on data provided by the Administrative Office of Courts. Of those total charges, only two people were found guilty by a jury as Beadle was, Mississippi Today found.  Out of all the drug dispositions, about three in five were faced by African Americans.

That discrepancy goes up when looking only at guilty pleas.  The majority of defendants pled guilty to over 600 charges in Madison County during that timeframe. About 66 percent of those individuals were black -- though black people make up only 38 percent of the county’s population -- while 32 percent were white.

New investigation finds "women in prison are disciplined at higher rates than men"

This lengthy new NPR piece, headlined "In Prison, Discipline Comes Down Hardest On Women," reports on new media research showing women are treated particularly harshly in prisons.  Here are excerpts from the piece which should be read in full:

Across the country, women in prison are disciplined at higher rates than men — often two to three times more often, and sometimes more — for smaller infractions of prison rules.

That is the finding of an investigation by NPR and the Medill School of Journalism at Northwestern University.  We collected data from women's and men's prisons, visited five women's prisons around the country, and interviewed current and former prisoners along with past and present wardens and prison officials. We also spoke with academics and other experts.

In 13 of the 15 states we analyzed, women get in trouble at higher rates than men.  The discrepancies are highest for more minor infractions of prison rules....

In California, according to our data analysis, women get more than twice the disciplinary tickets for what's called "disrespect."  In Vermont, women are more than three times as likely as men to get in trouble for "derogatory comments" about a corrections officer or another inmate. In Rhode Island, women get more than three times the tickets for "disobedience."  And in Iowa, female prisoners were nearly three times as likely as men to get in trouble for the violation of being "disruptive."

While the infractions might seem minor, punishment for them can have significant consequences, we found. In Idaho and Rhode Island, for instance, women are more likely than men to end up in solitary confinement for violations like disobedience.

Women can lose "good conduct credits" that would shorten an inmate's sentence, causing them to spend more time behind bars.  In California, between January 2016 and February 2018, women had the equivalent of 1,483 years added to their sentences through good-credit revocations, and at a higher rate than for male prisoners, according to the data we collected.

Discipline for small infractions can also result in the loss of privileges like being able to buy food or supplies — including women's hygiene products — at the prison commissary.  Or inmates lose their visitation and phone privileges.  That can have a particular effect on women, because more than half of women in prison are the mothers of children 18 or younger.

We found a disproportionate pattern in punishment as well, with women often receiving more serious sanctions than men.  In Massachusetts, according to our analysis, 60 percent of punishments for women restricted where they could go in prison, including confinement to their cells. Men received those punishments half as often....

We asked experts why women get disciplined more for minor infractions.  They noted that prison rules were set up to control men, especially violent ones.  But that strict system of control doesn't always work for female prisoners.

One reason, researchers have increasingly come to understand, is that women typically come to prison for different reasons than do men and respond differently to prison life.  Most prison staffers, meanwhile, are not trained to understand these differences.

Women are more likely than men to come for drug and property crimes and less likely to be convicted of violent crimes. They're also less likely to be violent once they're in prison.  They're also more likely than men to have significant problems with substance abuse, to have mental health problems and to be the caregiving parent of a minor child.

"How Statistics Doomed Washington State’s Death Penalty"

The title of this post is the title of this new commentary at The Atlantic by Garrett Epps.  Here is an excerpt (with links from the original):

Last week, the Washington Supreme Court, in a fairly pointed opinion, declared that, at least in its jurisdiction, numbers have real meaning.  And to those who have eyes to see, numbers make clear the truth about death-sentencing: It is arbitrary and racist in its application.

The court’s decision was based on two studies commissioned by lawyers defending Allen Gregory, who was convicted of rape and murder in Tacoma, Washington, in 2001 and sentenced to death by a jury there. The court appointed a special commissioner to evaluate the reports, hear the state’s response, and file a detailed evaluation.  The evidence, the court said, showed that Washington counties with larger black populations had higher rates of death sentences—and that in Washington, “black defendants were four and a half times more likely to be sentenced to death than similarly situated white defendants.” Thus, the state court concluded, “Washington’s death penalty is administered in an arbitrary and racially biased manner” — and violated the Washington State Constitution’s prohibition on “cruel punishment.”

The court’s opinion is painstaking — almost sarcastic — on one point: “Let there be no doubt — we adhere to our duty to resolve constitutional questions under our own [state] constitution, and accordingly, we resolve this case on adequate and independent state constitutional principles.”  “Adequate and independent” are magic words in U.S. constitutional law; they mean that the state court’s opinion is not based on the U.S. Constitution, and its rule will not change if the nine justices in Washington change their view of the federal Eighth Amendment.  Whatever the federal constitutionality of the death penalty, Washington state is now out of its misery.  

 Last spring, a conservative federal judge, Jeffrey Sutton of the Sixth Circuit, published 51 Imperfect Solutions: States and the Making of American Constitutional Law,  a book urging lawyers and judges to focus less on federal constitutional doctrine and look instead to state constitutions for help with legal puzzles.  That’s an idea that originated in the Northwest half-a-century ago, with the jurisprudence of former Oregon Supreme Court Justice Hans Linde.  It was a good idea then and it’s a good idea now.  State courts can never overrule federal decisions protecting federal constitutional rights; they can, however, interpret their own state constitutions to give more protection than does the federal Constitution.  There’s something bracing about this kind of judicial declaration of independence, when it is done properly.

Prior related posts:

• Washington Supreme Court strikes down state's death penalty based on its arbitrary administration
• Eager for a "51 Imperfect Solutions" approach to a new wave of constitutional proportionality litigation (with broadside Harmelin attacks, too)