Sentencing Law and Policy

"Equality in Sentencing Mitigation"

The title of this post is the title of this new article now available via SSRN authored by John B. Meixner Jr. Here is its abstract:

As guilty-plea rates have skyrocketed, sentencing has become an increasingly important part of criminal procedure. With judges often wielding significant discretion at sentencing, a key question is how judges interpret mitigation: evidence about the defendant’s background or the case that supports a reduced sentence.  Past empirical research — both experimental and in real-world cases — indicates that mitigation plays an important role in determining sentences.  But does mitigation help everyone, or does it reinforce inequalities that frequently infect other areas of criminal procedure?  Do low-income Black defendants with appointed counsel benefit from sentencing mitigation as much as wealthier white defendants with private attorneys?  Do certain kinds of judges disregard mitigation, leading to longer sentences for those defendants unlucky enough to be assigned to their dockets?

In this Article, I present new data that shed light on these questions for the first time.  I do this by leveraging two unique datasets.  First, by systematically examining over 350 federal sentencing memoranda and coding them for the length of arguments devoted to various categories of mitigation (such as arguments about defendants’ good character, traumatic upbringing, or history of mental or physical illness), I demonstrate that sentencing mitigation is a central predictor of sentencing outcomes.  Second, by combining my hand-coded mitigation data with previously unexplored data from the U.S. Sentencing Commission, I am able to assess the extent to which demographic characteristics — such as race, politics, and legal representation — interact with sentencing mitigation.

The results are encouraging.  For the most part, I do not find evidence that race or politics have a substantial impact on the effectiveness of mitigation.  In that way, mitigation may function as a sort of rising tide that lifts all boats, aiding defendants regardless of characteristics that may result in inequality in other parts of criminal procedure.  And mitigation’s impact is substantial: an additional 1,000 words of mitigation about a defendant’s personal circumstances predicts an approximately 13% reduction in sentence.  At the same time, mitigation is not a panacea: I find that defendants still face a large luck-of-the-draw element as individual attorneys vary strongly in the effectiveness of their presentations.  Normatively, I argue that we should encourage more effective presentation of mitigation by streamlining rules about how judges may consider it, by increasing access for detained defendants, and by increasing support for attorneys who need help in presenting it.

Prison Policy Initiative provides helpful analysis of new BJS data on prisons and pregnancies

Emily Widra and Emmett Sanders at the Prison Policy Initiative have produced this notable briefing digging into this new Bureau of Justice Statistics publication titled "Maternal Healthcare and Pregnancy Prevalence and Outcomes in Prisons, 2023."  This briefing's title provides its nuanced themes: "New data on pregnancy prevalence, outcomes, and programs in prisons are welcome additions, but raise new questions."  Here is part of the introduction of the briefing, with links from the original:

A new Bureau of Justice Statistics report offers updated data on pregnancy among people in state and federal prisons. This important new dataset includes the prevalence of pregnancy among incarcerated people, pregnancy outcomes, and some limited data on the types of services, medical care, and support offered to incarcerated pregnant people. The findings from Maternal Healthcare and Pregnancy Prevalence and Outcomes in Prisons, 2023 are based on data collected for the first time in 2024 as a supplement to the annual National Prisoner Statistics survey. While this report is a welcome contribution to a shamefully understudied experience during incarceration, the data it provides raises almost as many questions as it answers.

Women’s incarceration has grown at twice the pace of men’s incarceration in recent decades but there is often too little data to explain this growth or to elaborate the specific effects incarceration has on women and their health, including their experience of pregnancy....

Yet the data raises a series of new questions. There are unexplained differences in the prevalence of pregnancy behind bars compared to the PIPS report, as well as a lack of basic data on the outcomes of live births, and a failure to report how often pregnancy-related services and accommodations are actually used. The report also helpfully touches on services like prison nursery programs; however, crucial details about their implementation are left out — a gap we attempt to fill in this briefing using our own research. This new report is a step in the right direction, but much more work needs to be done to provide an accurate and useful portrait of pregnancy in prison.

DPIC releases new report on "Immature Minds in a ​'Maturing Society': Roper v. Simmons at 20"

The Death Penalty Information Center yesterday released this big new report about capital sentencing and execution trends for young people over the last two decades, with a particular attention focused on those aged 18 to 20.  (An overview of the report is available on this DPIC webpage.)  The full 75-page report, titled "Immature Minds in a ​'Maturing Society': Roper v. Simmons at 20," covers lots of ground, and here are parts of the report's "Executive Summary":

New death sentences for 18- to 20-year-olds have diminished both in absolute terms and as a percentage of all new death sentences over the last twenty years. During the past five years, juries have sentenced just five such individuals to death.

Seventy percent of 18- to 20-year-olds currently on death row were sentenced before Roper was decided.  Almost a third of 18- to 20-year-olds sentenced after Roper have been removed from death row because of judicial or executive action....

Since the Roper decision, more than three-quarters of the death sentences given to 18- to 20-year-olds have been imposed on people of color.  This is higher than the rate found in older defendants: half of the death sentences imposed on adults 21 and older were imposed on people of color during this same time frame.

California is an outlier. In the twenty years since Roper, nine out of ten death sentences given to 18- to 20-year-olds were imposed on people of color....

The average age at the time of crime for people sentenced to death is 34.3 for white people and 29.7 for people of color, a nearly five-year gap; the gap is as large as 15 years in some individual states.

Texas alone accounts for half of all executions of 18- to 20-year-olds since Roper — 80 percent of whom were people of color. 

"Debunking Criminal Restitution"

The title of this post is the title of this newly pubished article authored by Lula Hagos that I just came accross online. Here is its abstract:

Criminal restitution — the money paid by a defendant to a victim — is often overlooked amidst growing scholarly consensus about the adverse impact of criminal court fines and fees.  Restitution receives less attention because it is perceived as a fair and unobjectionable sanction with legitimate goals, while fines and fees are now widely condemned as primarily serving as a funding source for local and state governments.  Consequently, the animated and extensive discourse around financial punishment largely excludes criminal restitution.

Though criminal restitution may appear to have legitimate penological purposes, it serves to perpetually punish defendants who are poor — the vast majority of those in the criminal legal system — as courts across the country order people without means to pay.  Meanwhile, most criminal restitution goes uncollected, providing little satisfaction to the victims the schemes are designed to “make whole.”  At the federal level and in several states, criminal restitution has become a mandatory part of sentencing, without any consideration for a defendant’s economic circumstances.  This Article reframes the lens through which we examine criminal restitution and debunks the widely accepted belief that it is an appropriate criminal financial obligation.  Similarly problematic and pervasive as other types of financial punishment, criminal restitution has transformed into a form of wealth extraction from the most vulnerable, perpetuating existing inequalities with few benefits to victims.  To that end, this Article calls for a reimagining of criminal restitution and explores various alternative frameworks for achieving its policy goals, while also promoting defendants’ successful reintegration into their communities.

Maryland collaborative releases big report on "Racial Equity in the Criminal Legal System "

As reported in this local article, the Maryland Equitable Justice Collaborative, an initiative by the Maryland Office of the Attorney General and Office of the Public Defender to reduce mass incarceration in the state, has released its first report detailing what it says are the historical roots and current drivers of mass incarceration and how to address racial disparities within the criminal legal system."  Here is more:

The 105-page report outlines 18 recommendations addressing criminal justice reform and the reduction of racial disparities in Maryland’s prisons and jails, ranging from changes in law enforcement policies and practices to education and workforce development.

The recommendations include reducing unneeded police interactions with the public, decreasing police use of force, expanding alternatives to incarceration, ending unnecessary pretrial detention, increasing mental health services in jails, increasing access to geriatric and medical parole, reviewing long sentences, stopping the criminalization of in-school behavior, and expanding judicial training on implicit bias and cultural competency, among others.

The full report is titled "Breaking the 71%: A Path Toward Racial Equity in the Criminal Legal System," and it looks like an interesting read.

"Indian Country Supervision"

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

In 2023, the Department of Justice published its first-ever report on demographic disparities in revocations of community supervision, a critical yet under-studied part of the federal criminal justice system.  The report revealed extreme and systematic disparities affecting American Indian defendants.  Compared to other groups, American Indians were more likely to have their supervision revoked, more likely to be revoked for non-criminal technical violations, and more likely to be sentenced to additional supervision after revocation.  Although the report acknowledged these disparities, it did little to explain them.

In this Article, I provide the first legal analysis of community supervision in Indian country, identifying three unique features that may contribute to higher rates of revocation for American Indian defendants.  First, the federal government is the primary prosecutor of violent crimes in Indian country, which creates a population of defendants who are more likely to have their supervision revoked.  Second, American Indians tend to live in rural areas, where complying with the conditions of supervision is more difficult.  Finally, the federal supervision system reflects a legacy of conquest that continues to reenact past episodes of discrimination, displacement, and destruction.

To reform Indian country supervision, I argue that the federal government should recognize the inherent authority of Indian tribes to supervise tribal members living in tribal territory. Community supervision is a core part of tribal sovereignty, because it is not just a form of punishment, but also a vehicle for important social services.  Recently, tribal governments have developed their own formal supervision programs that both incorporate tribal values and send fewer people to prison.  By following the principles of tribal governance, community cohesion, and cultural respect, federal probation officials can promote better outcomes for Indian defendants and fuller autonomy for Indian tribes.

"Falling racial inequality and rising educational inequality in US prison admissions for drug, violent, and property crimes"

The title of this post is the title of this paper recently published in Proceedings of the National Academy of Sciences and authored by Christopher Muller and Alexander Roehrkasse. Here is its abstract:

Using administrative and survey data, we show that there has been a sea change in the contours of American imprisonment.  At the end of the twentieth century, inequality in the prison admission rates of Black and White Americans was comparable to inequality in the prison admission rates of people with and without a college education. However, educational inequality is now much greater than racial inequality in prison admissions for all major crime types. Violent offenses have replaced drug offenses as the primary driver of Black prison admissions and Black–White inequality in the prison admission rate.  The prison admission rate of Black Americans has fallen, but the prison admission rate of White Americans with no college education has dramatically increased for all offense categories.  These findings, which are robust to adjustments for changing selection into college attendance, contribute to a growing body of evidence documenting narrowing racial inequality and widening educational inequality in Americans’ life chances.

North Carolina state judge rules that "race was a significant factor" in capital jury selection

As reported in this AP article, "racial bias tainted the decision to strike Black people from the jury pool and to impose the death penalty in the 2009 trial of a Black man in North Carolina, a judge ruled on Friday, part of what he called “glaring” patterns of bias in a prosecutorial district outside the capital." Here is more:

Hasson Bacote was among a group of 15 death row inmates whose sentences were commuted to life without parole last year by Gov. Roy Cooper in one of his final acts in office. That means the ruling won’t make a legal difference for Bacote. However it could help several other death row inmates in similar circumstances, said Gretchen M. Engel, executive director of the Center for Death Penalty Litigation.

In addition to the problems that prejudiced Bacote’s trial, Superior Court Judge Wayland Sermons Jr. found that racial bias tainted jury selection and sentencing in other Johnston County cases. Sermons found “glaring” bias in the fact that Black defendants in capital cases were sentenced to death 100% of the time while similar white defendants received a death sentence only 45% of the time.

The judge said race was a “significant factor” in the decisions to seek the death penalty in the first place and in jury selection, when looking at other cases tried by Assistant District Attorney Gregory Butler as well as other death penalty cases in the same prosecutorial district, which at the time included Harnett and Lee counties.

In Bacote’s case, Butler struck 75% of prospective Black jurors and only 23% of prospective non-Black jurors. In Butler’s other cases, risk of removal from the jury pool by peremptory challenges was more than 10 times higher for Black candidates than for non-Black candidates, Sermons wrote.

Butler testified that he never struck a juror for a “racial reason.” Sermons found that unconvincing. In Bacote’s case, for example, Butler explained his removal of five Black jurors by citing their opposition to the death penalty. However, “Butler did not strike white jurors who expressed similar reservations, in some cases with nearly identical language,” Sermons wrote....

The North Carolina Department of Justice, whose lawyers represented the state in Bacote’s case, have already “notified the court that we intend to appeal,” said Nazneen Ahmed, a spokesperson for Attorney General Jeff Jackson, who leads the department.

Bacote challenged his death sentence under North Carolina’s 2009 Racial Justice Act, which allowed prisoners to receive life without parole if they could show that racial bias was the reason for their death sentence.  The law was repealed in 2013, but the state Supreme Court has ruled that it still applies to any prisoner who had a Racial Justice Act case pending at the time of the repeal.

During a two-week hearing last fall, Sermons listened to evidence that included statistical studies of how the death penalty is implemented in North Carolina and Johnston County in particular. In his Friday ruling, the judge said the weight of the evidence did not prove that racial disparities prejudiced death penalty cases statewide.

The full 120-page ruling(!) is available at this link.

"Women on Death Row in the United States"

The title of this post is the title of this new paper recently posted to SSRN authored by Sandra Babcock, Nathalie Greenfield and Kathryn Adamson. Here is its abstract:

This Article presents a comprehensive study of forty-eight persons sentenced to death between 1990 and 2022 who were legally recognized as women at the time of their trials.  Our research is the first of its kind to conduct a holistic and intersectional analysis of the factors driving women’s death sentences.  It reveals commonalities across women’s cases, delving into their experiences of motherhood, gender-based violence, and prior involvement with the criminal legal system.  We also explore the nature of the women’s crimes of conviction, including the role of male codefendants and the State’s use of aggravating factors.  Finally, we reveal for the first time the extent to which capital prosecutions are dominated by men — including judges, elected district attorneys, defense attorneys, and juror forepersons.

We present our data against the backdrop of prevalent theories that seek to explain both the rarity of women’s executions and the reasons why certain women are singled out for the harshest punishment provided by law.  We explain why those frameworks are inadequate to understand the role that systemic gender bias plays in women’s capital prosecutions.  We conclude by arguing for more nuanced research that embraces the complexities in women’s capital cases and accounts for the presence of systemic and intersectional discrimination. 

Intriguing new data on jail admissions from Prison Policy Initiative and Jail Data Initiative

Via email I received work of this this new briefing from the Prison Policy Initiative, completed in collaboration with the Jail Data Initiative, which offers broad data on jail admissions and populations. The full title of this briefing provides a basic overview: "Who is jailed, how often, and why: Our Jail Data Initiative collaboration offers a fresh look at the misuse of local jails. Using a novel data source, we examine the flow of individuals booked into a nationally-representative sample of jails along lines of race, ethnicity, sex, age, housing status, and type of criminal charge." Lots of the data is interesting, with some suprising and others not-so-suprising. Here are a few excerpts from the start and heart of the work:

Millions of people are arrested and booked into jail every year, but existing national data offer very little information about who these people are, how frequently they are jailed, and why they are jailed. Fortunately, we now have new data through a collaboration with the Jail Data Initiative to help answer these questions: In 2023, there were 7.6 million jail admissions; but 1 in 4 of these admissions was someone returning to jail for at least the second time that year. Based on the Jail Data Initiative data, we estimate that over 5.6 million unique individuals are booked into jail annually and about 1.2 million are jailed multiple times in a given year.  Further analysis reveals patterns of bookings — and repeat bookings in particular — across the country: The jail experience disproportionately impacts Black and Indigenous people, and law enforcement continues to use jailing as a response to poverty and low-level “public order” offenses....

The Bureau of Justice Statistics last collected charge data for jail populations in their 2002 Survey of Inmates in Local Jails. Given that the most recent jail offense data is over 20 years old, the Jail Data Initiative dataset offers a rare opportunity to analyze the top charges that people are booked under nationwide. Of course, the difference in data sources makes a fully apples-to-apples comparison of the 2002 data and the more recent Jail Data Initiative data impossible.  The data provided in the Bureau of Justice Statistics survey reflects self-reported information from people detained in a sample of local jails on a single day in June 2002, while the Jail Data Initiative data is based on jail bookings across a two-year time period and relies on administrative data.  Nevertheless, the overall trends since 2002 offer some valuable insights into the reasons people are detained in jails today:

• Drug charges appear to play a smaller role now than they did two decades ago, when the “war on drugs” was in full effect. In 2002, a quarter of people in jail were held for drug charges, compared to 14% of people admitted to jail in our 2021-2023 sample.
• Property charges also appear to represent a smaller portion of the jail population now than they did in 2002: Property charges are the top charge for 19% of jail admissions, compared to 24% of the jail population in 2002.
• In 2002, public order charges were the top charge for 25% of people in jail, but now, 31% of people admitted to jail are booked for a most serious charge related to public order, such as disorderly conduct, loitering, and public intoxication.
• We see very little change in the proportion of people in jail for violent charges: in 2002, 25% of people were in jail for a violent charge and in our analysis of more recent jail bookings, about 26% of jail bookings were for violent charges.

New Death Penalty Information Center report presents critical account of federal death penalty history

The Death Penalty Information Center has today released this new report titled "Fool’s Gold: How the Federal Death Penalty Has Perpetuated Racially Discriminatory Practices Throughout History."  The title leaves little doubt about the tone and leanings of the report, and here is its executive summary to the same effect (which only appears online and not in the full report):

In 2020, President Joe Biden promised to end the federal death penalty during his administration and his Attorney General, Merrick Garland, acknowledged its many longstanding concerns as reasons to pause federal executions pending an internal review of Department of Justice policies and practices. Project 2025, the product of a political conservative movement, calls for President Trump to “obtain finality” for all federal death row prisoners. Before any decision about future use of the federal death penalty is made, it is critically important to understand its history and the serious flaws in the way it is used today. Although sometimes referred to as the “gold standard” of capital punishment, an analysis of the federal death penalty reveals that it is plagued by the same serious problems as state level capital punishment systems.

The federal death penalty has been used disproportionately against people of color: to subjugate Native Americans Resisting Colonization, and to intimidate and terrorize newly freed Black Americans.

Before the start of the Civil War, the federal death penalty was used primarily against white men. After slavery was abolished and the U.S. continued its westward expansion, however, the demographics of those executed shifted. At least 58 Native Americans were executed by the federal government between 1862 and 1899, with the majority killed in mass executions (defined as at least three people executed at the same time).

Black Americans were also overrepresented among those executed. Before the Civil War, 8 Black people were executed by the federal government; between 1862 and 1899, 47 Black people were federally executed — a 488% increase. Most of these executions occurred during the Reconstruction era, which also saw a dramatic rise in the extralegal lynchings of Black people....

Since the federal death penalty was reinstated in 1988, multiple studies have demonstrated that racial disparities continue to define federal capital prosecutions. The Death Penalty Information Center’s 1994 review of federal prosecutions found that “no other jurisdiction comes close to th[e] nearly 90% minority prosecution rate” seen at the federal level. A 2001 supplementary study found similarly jarring disparities, with nearly 80% of cases involving non-white defendants. A review of all federal death penalty authorizations from 1989 to June 2024 reveals that these disparities persist: 73% of all cases authorized for prosecution involved defendants of color.

Similar to use of the death penalty at the state levels, statistics suggest that there is a correlation between the race and gender of a victim and a federal death sentence. Defendants who killed white female victims receive the death penalty at a substantially higher rate than defendants whose victims were not white women.

The Death Penalty Information Center website all has this accounting of "Five Facts To Know About the Federal Death Penalty."

"Plea Bargaining in Homicide Cases: An Empirical Exploration in One State"

The title of this post is the title of this new article by Michael O'Hear and Darren Wheelock now available via SSRN. Here is its abstract:

Even the most serious criminal cases are often resolved through plea bargaining, with potentially dramatic consequences for the sentence ultimately imposed.  In Wisconsin, the most serious type of homicide is a Class A felony, which results in a mandatory life sentence.  However, many individuals who are initially charged with the Class A offense are given the opportunity to plead guilty to a lesser Class B offense, which does not trigger any mandatory minimum sentence at all.

In this Article, we compare the characteristics of the cases in which the defendant pleads guilty to a Class A offense (a relatively harsh outcome) with the characteristics of the cases in which the defendant pleads guilty to a Class B offense (a relatively lenient outcome).  We find statistically significant differences between these two sets of cases in such areas as county of prosecution, appointed versus private-pay defense lawyer, and gender of defendant, victim, prosecutor, and defense lawyer.

The Sentencing Project releases "Locked Out 2024: Four Million Denied Voting Rights Due to a Felony Conviction"

The Sentencing Project has this timely new report on felon disenfranchisement. Here is the text of the report's "Overview":

Laws in 48 U.S. states ban people with felony convictions from voting. In 2024, an estimated 4 million Americans, representing 1.7% of the voting-age population, will be ineligible to vote due to these laws, many of which date back to the post-Reconstruction era. In this historic election year, questions persist about the stability of democratic institutions, election fairness, and voter suppression in marginalized communities. The systematic exclusion of millions with felony convictions should be front and center in these debates.

This report updates and expands upon a quarter century of work chronicling the scope and distribution of felony disenfranchisement in the United States. As in 2022, we present national and state estimates of the number and percentage of people disenfranchised due to felony convictions, as well as the number and percentage of the Black and Latino populations impacted. This year, we also present state-level data on the degree of disenfranchisement among men and women. Although these and other estimates must be interpreted with caution, the numbers presented here represent our best assessment of the state of U.S. felony disenfranchisement as of the November 2024 election.

Among the report’s key findings:

• An estimated 4 million people are disenfranchised due to a felony conviction, a figure that has declined by 31% since 2016, as more states enacted policies to curtail this practice and state prison, probation, and parole populations declined. Previous research finds there were an estimated 1.2 million people disenfranchised in 1976, 3.3 million in 1996, 4.6 million in 2000, 5.1 million in 2004, 5.7 million in 2010, 5.9 million in 2016, 4.9 million in 2020, and 4.4 million in 2022.
• One out of 59 adult citizens – 1.7% of the total U.S. voting eligible population – is disenfranchised due to a current or previous felony conviction.
• Seven out of 10 people disenfranchised are living in their communities, having fully completed their sentences or remaining supervised while on felony probation or parole.
• In two states – Florida and Tennessee – more than 6% of the adult population, one of every 17 adults, is disenfranchised.
• Florida remains the nation’s disenfranchisement leader in absolute numbers, with over 961,000 people currently banned from voting, often because they cannot afford to pay court-ordered monetary sanctions. An estimated 730,000 Floridians who have completed their sentences remain disenfranchised, despite a 2018 ballot referendum that promised to restore their voting rights.
• One in 22 African Americans of voting age is disenfranchised, a rate more than triple that of non-African Americans. Among the adult African American population, 4.5% is disenfranchised compared to 1.3% of the adult non-African American population. In 15 states, 5% or more of the African American adult population is banned from voting due to a felony conviction.
• More than one in 10 African American adults is disenfranchised in five states – Arizona, Florida, Kentucky, South Dakota, and Tennessee.
• Although data on ethnicity in correctional populations are unevenly reported and undercounted in some states, a conservative estimate is that at least 495,000 Latino Americans or 1.5% of the voting eligible population are disenfranchised.
• Based on available correctional data that records an individual’s sex, approximately 764,000 women are disenfranchised, comprising about 0.6% of the female voting eligible population and approximately one-fifth of the total disenfranchised population.3 We estimate that approximately 3.2 million men or 2.7% of the male voting eligible population is disenfranchised, consistent with the overrepresentation of men in the criminal legal system.

New PPI briefing highlights incarceration trends on tribal lands

Emily Widra writing at the Prison Policy Initiative has this lengthy new briefing titled "New, expanded data on Indian country jails show concerning trends extend to tribal lands." The subheading of the piece provides an overview: "In Indian country jails, populations have rebounded from pandemic lows, the detention of women and older adults is increasing, and new offense type data raise questions about why so many people are incarcerated on tribal lands."  Here is how the briefing gets started:

Native people are consistently overrepresented in the criminal legal system, accounting for only 1% of the total U.S. population but 3% of the incarcerated population.  More specifically, the national incarceration rate of Native people is between two and four times higher than that of white people.  Now, newly released data on jails in Indian country in 2023 provide more detail on this disturbing disparity: the Bureau of Justice Statistics (BJS) reports that, much like other jails across the country, Indian country jail populations are quickly bouncing back from the lows of the COVID-19 pandemic, and this growth has disproportionately impacted women and older adults.

The Bureau of Justice Statistics (BJS) collects and publishes data about jail facilities on Native land separately — and with differing kinds of details — from other locally-operated jails across the country. In this iteration of the BJS survey on Indian country jails, the bureau collected new, more detailed information about offense types that are crucial to understanding the role of jails on Native land.  They also reveal the troubling overuse of jails in response to non-criminal behaviors for youth and adults.

"Rural Mass Incarceration and the Politics of Punitiveness"

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

Criticisms of American mass incarceration have generally focused on urban areas, and especially large, racially segregated cities.  But after nearly two decades in which urban incarceration rates have fallen while rural rates have risen, rural Americans are now more likely to be incarcerated than urban Americans.  Because most rural areas in the United States are overwhelmingly white, the rise of rural incarceration rates creates a puzzle for race-focused explanations of American mass incarceration.  Why would overwhelmingly white areas "lock up their own" in such great numbers?

This article proposes an explanation for the ongoing rise of rural mass incarceration that draws on two strands of political science research.  First, Peter Enns's analysis of the origins of American mass incarceration suggests that changes in incarceration rates have been largely driven by two interrelated factors: crime rates and punitive public attitudes toward crime.  Because rural crime rates have remained lower than urban crime rates, Enns's model implies that rural incarceration rates are likely higher than urban incarceration rates today primarily because rural Americans have more punitive attitudes toward crime.

Survey evidence shows that, in fact, rural Americans do have more punitive criminal justice views than nonrural Americans.  A second strand of political science research suggests possible explanations.  Scholars of political psychology including Karen Stenner and Marc Hetherington have found that punitiveness, like intolerance, tends to vary based on differences in personality and changes in perceived threats.  Notably, rural Americans have a higher average score than nonrural Americans on a standard measure of "authoritarian" predisposition, which is associated with greater punitiveness under at least some conditions.

Understanding political support for mass incarceration as fundamentally the product of psychological processes tied to punitiveness and intolerance rather than ideological attitudes specifically about race does not mean ignoring the central role of race in the politics that created American mass incarceration.  To the contrary, the most politically powerful expression of intolerance throughout U.S. history has been racial intolerance, especially toward Black and Indigenous Americans.  But attending to the political psychology of punitiveness suggests that confronting racial injustices in the criminal legal system, while necessary, may not be sufficient to end mass incarceration.

"Fatal Peril: Unheard Stories from the IPV-to-Prison Pipeline and Other Voices Touched by Violence"

The title of this post is the title of this notable new huge report from the Stanford Criminal Justice Center.  The email I received about the report explains that it examines "the prevalence and severity of intimate partner violence (IPV) in the backgrounds of women incarcerated for homicide in California."  Here is the start of the report's executive summary:

The women’s rate of incarceration in the United States has grown twice as fast as that of men in recent decades.  Research has established that many incarcerated women have histories of abuse throughout their lives, including intimate partner violence (IPV), and that this abuse may contribute to their criminalization.  Gender-based violence results in an array of negative physical and mental health consequences, with intimate partner homicide (IPH) as the most severe outcome.

For women who are arrested, convicted, and sentenced for actions like homicide arising out of their own victimization, the law generally fails to account for domestic and intimate partner violence even when this abuse is supposed to be considered as a mitigating factor.  Unfortunately, little scholarship has examined the linkage between genderbased violence and women’s experiences as defendants ensnared in a broad and powerful criminal legal system.

The overarching purpose of our project was to understand how people experiencing genderbased violence are criminalized for actions they took to survive abuse. While IPV exists for people of all genders, we focused on women given their disproportionate rates of severe and lethal intimate partner abuse.  We also centered our study on people convicted of the most serious of offenses and serving the longest sentences — murder and manslaughter.

Specific objectives were to:

 (1) Quantify the prevalence of IPV and the potential lethality of the abuse;

(2) Describe the nature of the relationship between the survivor-defendant and the decedent as it relates to the circumstances of the offense; and

(3) Identify the extent to which the criminal legal system accounts for IPV.

The lengthy reports discusses sentencing in various ways, and this passage particularly caught my eye:

Although we did not systematically ask respondents about their co-defendants’ sentences, we were able to glean some information about sentencing disparities from their narrative responses.  In some cases, respondents received higher sentences than their co-defendants for less culpable conduct because their co-defendants testified against them.  As one respondent shared, “My ex-boyfriend was the one who did the actual crime. And both of them are already out of prison. I did not participate in the actual crime.  I should have a chance to get out of prison.”  Similarly, many co-defendants took plea deals to [testify against] respondents—even if the respondent did not cause the killing.

"Public Defense Attorneys' Perception of Race and Bias: National Survey Findings"

The title of this post is the title of this recent publication from the Center for Justice Innovations (CJI) authored by Sruthi Naraharisetti. Here is how the CJI website describes the work:

Public defense attorneys play a pivotal role in addressing the racial inequities that many clients face in the criminal legal system while also experiencing the impact of those racial inequities themselves.  This exploratory study aims to illuminate how attorneys consider race in their work, conceptualize their role in addressing racial inequity, and experience the impact of their racial or ethnic identities in the workplace.

Our survey of 690 public defense attorneys reveals that race significantly influences public defense practice and culture.  Attorneys recognize racial inequities in the legal system and adapt their strategies accordingly, with notable differences between attorneys who are white and attorneys who are Black, Indigenous, or People of Color (BIPOC). White attorneys often find that race hinders their relationships with BIPOC clients, while BlPOC attorneys are more likely to report adjusting case strategies for BIPOC clients. Inequities within the profession — such as a lack of diversity among attorneys and leadership, limited opportunities for dialogue, and workplace racism — are particularly felt by BIPOC attorneys.  We hope this report will inspire reflection and discussion among public defense agencies about racial bias in the field and help pave the way to identifying and evaluating actionable solutions.

Prison Policy Initiative briefing discusses "10 ways that mass incarceration is an engine of economic injustice"

The quoted portion of this post title is the title of this new briefing published by the Prison Policy authored by Eric Seligman and Brian Nam-Sonenstein. Here is how the discussion starts:

Money is power in the United States, and mass incarceration plays a major role in determining who can wield power and who can’t.  As we’ve noted repeatedly over the years, it is no coincidence that the poorest and most vulnerable communities are also the most policed.  The criminal legal system erects significant barriers to employment and the ballot box, economically and politically weakening entire communities.  Importantly, this arrangement impacts all workers: employers use this massive class of disadvantaged people to threaten all workers with replacement and increasingly risky unemployment if they dare to demand better wages and conditions.  Mass incarceration also weaves a narrative that pits people with similar economic interests against one another, reducing systemic inequality to matters of individual choice.  Fortunately, understanding mass incarceration as the wealthy’s preferred economic policy clarifies that ending it is necessary for all movements for justice and equality — all working people benefit from solidarity with criminalized people.

In this briefing, we compile ten examples of how mass incarceration blocks progress toward economic justice.  We argue that our massive system of criminalization is not an isolated issue, nor is it someone else’s problem; it is an engine of inequality that traps people in poverty, weakens worker power, and undermines political organizing toward a more prosperous future for the vast majority of people.

"Racially Disparate and Disproportionate Punishment of Felony Murder: Evidence from New York"

The title of this post is the title of this new paper authored by Alexandra Harrington and Guyora Binder now available via SSRN. Here is its abstract:

America’s peculiar institution of felony murder liability has long been criticized as cruel and pointless, particularly as applied to defendants who did not kill.  Yet data collection practices in the criminal legal system make felony murder difficult to study empirically.  This article presents recently uncovered evidence of the racially disparate application of felony murder law, as well as increased disparities for those who have been convicted as accomplices.  This study of felony murder arrest and disposition in New York is one of the first to reach beyond dispositions to examine the behavior punished, and to thereby compare patterns in arrest, prosecution, and conviction of accused principals with accomplices not alleged to have killed. 

This study is also one of the first to report the surprising scale of liability under felony murder law for individuals who did not kill — half of all people convicted of felony murder in the years measured — as well as for people who appear to have caused death inadvertently.  It finds substantial racial disparities in arrests and convictions for felony murder compared to other forms of second-degree murder.  These disparities are starker for teens, who make up at least a quarter of the dataset.  Finally, it uncovers a shocking phenomenon: hundreds of arrests — mostly concentrated in New York City — of almost exclusively Black and Hispanic people for the fictitious crime of attempted felony murder.  In New York, it seems, the worst of felony murder is reserved for defendants of color.

Two notable new sentencing-related papers in the new issue of the Journal of Empirical Legal Studies

I received an email today from the Society for Empirical Legal Studies providing the contents of the newest isse of the Journal of Empirical Legal Studies.  This link to the September 2024 issue was also provided, and I was pleased to see therein two sentencing-related papers (which are open access as of this writing):

"The impact of legal representation in Israeli traffic courts: Addressing selection bias and generalizability problems" by Rabeea Assy & Tomer Carmel

Abstract: This study investigates the impact of legal representation on the process and outcomes of legal proceedings, focusing on Israeli traffic courts dealing with simple traffic offenses.  It finds that legal representation significantly increased defendants' prospects of obtaining plea bargains and of avoiding demerits points.  However, legally represented defendants were also exposed to higher fines compared to self-represented defendants.  Since points are typically the primary concern for defendants, we contend that legal representation improved case outcomes, overall.  Considering the simplicity of the process, the minimal legal expertise required, and the low stakes involved, the representation effect was unexpectedly robust.  This effect may potentially be even stronger in more complex cases and where the stakes are higher.  Unlike previous observational studies, this study reduces the risks associated with selection bias and produces findings that are more credible and potentially generalizable to other contexts.

"The influence of the race of defendant and the race of victim on capital charging and sentencing in California" by Catherine M. Grosso, Jeffrey Fagan & Michael Laurence

Abstract: The California Racial Justice Act of 2020 recognized racial and ethnic discrimination as a basis for relief in capital cases, expressly permitting several types of statistical evidence to be introduced.  This statewide study of the influence of race and ethnicity on the application of capital punishment contributes to this evidence.  We draw on data from over 27,000 murder and manslaughter convictions in California state courts between 1978 and 2002.  Using multiple methods, we found significant racial and ethnic disparities in charging and sentencing decisions. Controlling for defendant culpability and specific statutory aggravators, we show that Black and Latinx defendants and all defendants convicted of killing at least one white victim are substantially more likely to be sentenced to death.  We further examined the role that race and ethnicity have in decision-making at various points in the criminal justice system.  We found that prosecutors were significantly more likely to seek death against defendants who kill white victims, and that juries were significantly more likely to sentence those defendants to death.  The magnitude of the race of the defendant and race of the victim effects is substantially higher than in prior studies in other states and in single-jurisdiction research.  The results show an entrenched pattern of racial disparities in charging and sentencing that privileges white victim cases, as well as patterns of racial disparities in who is charged and sentenced to death in California courts that are the natural result of California's capacious statutory definition of death eligibility, which permits virtually unlimited discretion for charging and sentencing decisions.  This pattern of racial preferences illustrates the social costs of California's failure to follow the Supreme Court's directive in Furman v Georgia to narrow the application of capital punishment over 50 years ago.

"Race, Racial Bias, and Imputed Liability Murder"

Though posted on SSRN a few months ago, I just came across this new paper that shares a title with this post and was authored by Perry Moriearty, Kat Albrecht and Caitlin Glass. Here is its abstract:

Even within the sordid annals of American crime and punishment, the doctrines of felony murder and accomplice liability murder stand out.  Because they allow states to impose their harshest punishments on defendants who never intended, anticipated, or even caused death, legal scholars have long questioned their legitimacy.  What surprisingly few scholars have addressed, however, is who bears the brunt.  This Article is one of the first to explore the racialized impact of the two most controversial and ubiquitous forms of what we call “imputed liability murder.” 

An analysis of ten years of murder prosecutions in the state of Minnesota reveals that imputed liability murder is anything but a fringe subtype of homicide: an astounding 70% of those charged with murder during this period were charged with felony murder, accomplice liability murder, or both.  The study also shows that nearly 60% of these defendants were Black, a level of racial disproportionality that is not just intrinsically extreme; it is comparatively greater than levels of disproportionality for other types of murder.  The question is, why? 

The answer lies in part in the structural and social psychological dynamics of imputed liability murder prosecutions themselves, we claim.  By reducing prosecutors’ burden to prove the most salient legal indicia of a defendant’s culpability — mens rea, actus reus, or both — and allowing prosecutors to cast a wide and undifferentiated net around almost any homicide, the felony murder and accomplice liability murder doctrines invite prosecutors to base normative charging decisions on subjective, extra-legal proxies, like “dangerousness” and “group criminality.”  Multiple studies have shown that decision-makers are more likely to attribute these proxies to Black defendants and, in turn, treat them more punitively.  Compounding these dynamics is the racial stereotypicality of the crimes themselves.  A separate body of research indicates that felony murder and accomplice liability murder have become so cognitively synonymous with Black defendants that simply shoring up the doctrines’ structural laxity may not be enough to mitigate their disproportionate enforcement.

As states across the country grapple with reforming their felony murder and accomplice liability murder laws, this Article contributes to the ongoing debate about the legitimacy of both doctrines.  It also raises critical questions about the racialized enforcement of not just these doctrines but of any doctrine that invites the State to impute criminal liability. 

"Algorithms in Judges’ Hands: Incarceration and Inequity in Broward County, Florida"

The title of this post is the title of this article recently posted to SSRN authored by Utsav Bahl, Chad M. Topaz and others. Here is its abstract:

Judicial and carceral systems increasingly use criminal risk assessment algorithms to make decisions that affect individual freedoms.  While the accuracy, fairness, and legality of these algorithms have come under scrutiny, their tangible impact on the American justice system remains almost completely unexplored.  To fill this gap, we investigate the effect of the Correctional Offender Management Profiling for Alternative Sanctions (COMPAS) algorithm on judges’ decisions to mandate confinement as part of criminal sentences in Broward County, Florida.

Our study compiles a novel dataset of over ten thousand court records from periods before and after the implementation of COMPAS in Broward County and uses it to build a Directed Acyclic Graph (DAG) model of the confinement decision-making process.  Our approach aims to reveal potential associations between the use of COMPAS and incarceration.  We find that the many individuals deemed low risk by COMPAS are much less likely to be confined than were comparable individuals before COMPAS was in use, and similarly, individuals deemed high risk are much more likely to be confined than before.  Overall, the impact of COMPAS scores on sentencing decisions is a reduced rate of confinement for both Black and white individuals.  However, a racial bias exists within the COMPAS scores, as they are based on historical data that mirrors pre-existing racial inequities.  While the overall rate of incarceration decreases, the difference in scores exacerbates the difference in confinement between racial groups, thereby deepening racial disparity.  Insofar as criminal risk algorithms can aid decarceration, policymakers and judges alike should be mindful of the potential for increased racial inequity.

The Sentencing Project releases updated fact sheet on "Incarcerated Women and Girls"

The Sentencing Project today released this updated six-page fact sheet titled "Incarcerated Women and Girls." The document has lots of data and graphics providing details of how and why "female incarcerated population stands almost seven times higher than in 1980." I recommend the full document, and here is some of its text:

Between 1980 and 2022, the number of incarcerated women increased by more than 585%, rising from a total of 26,326 in 1980 to 180,684 in 2022. While 2020 saw a substantial downsizing due to the COVID-19 pandemic, this trend reversed with an 18% increase in 2022....

The rate at which women are incarcerated varies greatly from state to state. At the national level, including both state and federal imprisonment, 49 out of every 100,000 women were in prison in 2022. The state with the highest rate of female imprisonment is Idaho (132) and the state with the lowest incarceration rate of women is Massachusetts (7).

Women in state prisons are more likely than men to be incarcerated for a drug or property offense. Twenty-five percent of women in prison have been convicted of a drug offense, compared to 12% of men in prison; 19% of incarcerated women have been convicted of a property crime, compared to 13% among incarcerated men.

The proportion of imprisoned women convicted of a drug offense has increased from 12% in 1986 to 25% in 2021.

Interesting gendered jury history in the application of the death penalty

Via the Smithsonian Magazine, I came across this fascinating piece about juries and capital punishment history headlined "How All-Female ‘Juries of Matrons’ Shaped Legal History."  I recommend the piece in full, and here are some excerpts:

For more than 700 years, women in England could avoid the death penalty just by virtue of being pregnant.  A pregnant woman sentenced to death would receive a stay of execution until the baby was born. This tactic was called “pleading the belly” and often resulted in the death sentence being reduced to a less severe penalty once the pregnancy was over.

Of course, anyone can say they’re pregnant without actually being with child. So how did courts determine whether the claim was true? Until the early 20th century, it was standard practice to assemble all-female juries, called “juries of matrons,” to determine whether a woman was pregnant and could therefore avoid hanging for capital offenses....

All-female juries existed as early as 1140 in England and persisted until 1931. Their role in the courts was highly regarded. They were medical experts. If they found the woman was “quick with child” (pregnant), their findings were not disputed....

All-female juries also existed in colonial America, as well as in Australia and New Zealand. In fact, the first use of the English jury system in Australia was a jury of matrons....

If a convicted woman’s pregnancy resulted in a birth, a reprieve from the noose was fairly common. This raised the concern among men that women might falsely plead the belly to avoid punishment for a capital offense. They worried a jury of matrons, being “naturally” sympathetic to women, might grant the guilty a reprieve from death.

While there is scant evidence that this was the case, to address the men’s concern, the laws around pleading the belly stipulated that such a plea could only be made once. If a pregnant woman was granted a reprieve from death to have the baby, she could be executed for any future crime—even if pregnant at the time.

CCJ launches new nonpartisan national panel titled "Women’s Justice Commission"

I received a press release early this morning informing me that the Council on Criminal Justice (CCJ) today was launching a new "initiative to document and raise awareness of the distinctive needs of women in the criminal justice system and build consensus for evidence-based reforms that enhance safety, health, and justice."  Here is more from the press release (with links from the original): 

The nonpartisan national panel, the Women’s Justice Commission, is chaired by Loretta Lynch, who championed women’s justice issues as U.S. Attorney General, and includes 15 other ideologically diverse leaders representing law enforcement, legislative offices, courts, corrections, medicine, research, advocacy, and directly impacted individuals. Oklahoma First Lady Sarah Stitt, a longtime advocate for breaking generational trauma among women due to substance abuse and mental health issues, is serving as Senior Adviser. The Commission is scheduled to hold its first formal meeting today in New York City, including a visit to Brooklyn program for justice-involved women....

In conjunction with today’s meeting, the Commission released two comprehensive reports — Women's Justice: A Preliminary Assessment of Women in the Criminal Justice System and Women’s Justice: By the Numbers — that paint a statistical portrait of justice-involved women and establish a foundation for the panel’s work.  Among other findings, the reports show that: 

• Females report that they make up a larger share of violent crime victims: 51% of all violent victimizations in 2022 compared to 41% of all victimizations in 1993, the start of the data series. (This figure is drawn from the National Crime Victimization Survey; it excludes homicides and includes simple assaults.) 

• Growth in arrest rates for women (41% higher in 2019 than in 1980) is due in part to a rise in arrest rates for violent crimes (317% higher in 2019 than 1980) and drug crimes (63% higher in 2019 than 1980). 

• The incarceration rate for women in U.S. prisons and jails increased dramatically (+431%) from 1982 through 2007, and then flattened as the number of incarcerated men began to fall.  Between 2010 and 2019, the year before the COVID pandemic jolted the criminal justice system, the female jail incarceration rate went up by 12%, while the male rate fell by 10%.  As overall incarcerated populations rebounded in 2021 and 2022 after COVID-related reductions, the increase of the female populations outpaced those of men. 

• More than half of the women in state and federal prisons are parents to minor children, and an estimated three of four women in local jails are mothers.  Prior to incarceration, mothers were more than twice as likely as fathers to be the sole or primary caretaker of their children. 

• Most justice-involved women come from backgrounds of poverty and trauma, and they are more likely than justice-involved men to be victims of physical and sexual abuse, suffer severe substance use and mental health issues, and to have experienced homelessness in the year prior to incarceration. 

The production and publication of these initial documents from the CCJ are already a terrific contribution, and I will eager to see what this august new commission produces in the months and years ahead.

Part 1 of "Drugs on the Docket" podcasts on fake stash-house stings now available

In this post earlier this week, I previewed that the Drug Enforcement and Policy Center at The Ohio State University was about to start releasing episodes from Season Two of the "Drugs on the Docket" podcast.  Excitingly, as detailed on this podcast webpage, today brought the release of the first episode of this new season.  (And all of the first season's episodes are all still  available via Apple Podcasts and YouTube.)  This first episode to kick-off Seanson 2 is actually part of a extended discussion that was so chock full of content that it became a two-part series described this way at the podcast webpage:

Season 2 Episode 1 – Stash house stings with Alison Siegler and Erica Zunkel (Part 1 of 2)

Host Hannah Miller and co-host Douglas Berman, executive director of the Drug Enforcement and Policy Center, kick off Season 2 with guests Alison Siegler and Erica Zunkel from the University of Chicago.  Part 1 of this two-part episode focuses on clients ensnared in undercover stash house sting operations carried out by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and how the Federal Criminal Justice Clinic at the University of Chicago Law School sought to prove that the ATF violated the 14th Amendment Equal Protection Clause by discriminating on the basis of race when selecting its targets.

Alison Siegler is Clinical Professor of Law and Founding Director of the Federal Criminal Justice Clinic at the University of Chicago Law School; Erica Zunkel is Clinical Professor of Law at the University of Chicago Law School and teaches in the school’s Criminal and Juvenile Justice Clinic.

The many remarkable legal and policy stories that surround the fake stash-house stings continue to amaze me, and I am extremely grateful to have been part of this effort to tell parts of the story via these podcasts.  I encourage everyone to have a listen.

"Punishing Gender"

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

As jurisdictions across the country grapple with the urgent need to redress the impact of mass incarceration, there has been a renewed interest in reforms that reduce the harms punishment inflicts on women.  These “gender-responsive” reforms aim to adapt traditional punishment practices that, proponents claim, were designed “for men.”  The push to change how we punish based on gender, while perhaps well intentioned, is misguided.  As abolition feminist principles reveal, these gender- responsive practices not only reify traditional gender norms, but also strengthen the operation of the carceral state.  This Article catalogs the ways that the gender-responsive approach currently influences various decisions about criminal punishment, including about the length, location, and type of punishment one receives.  Then, it provides an abolition feminist critique of how we “punish gender” and concludes that these efforts to treat some people better than others ultimately lead to a system that is worse for all.

New Death Penalty Information Center report presents racialized view of Ohio's capital punishment history

The Death Penalty Information Center (DPIC) today published this new report on Ohio capital punishment history titled "Broken Promises: How a History of Racial Violence and Bias Shaped Ohio’s Death Penalty." In this press release about the report, DPIC asserts that it "does not take a position on the death penalty itself," but all of its work clearly draws from an anti-capital punishment perspective.  This report is quite critical of Ohio's capital punishment history and current state as reflected in this description of the report from portions of the press release:

As Ohio legislators debate expanding or repealing the death penalty, the Death Penalty Information Center (DPIC) today released a report that documents how racial bias and violence affected the past use of the death penalty in Ohio and how that history continues to influence the current administration of capital punishment in the state.  None of the reforms recommended by a bipartisan task force 10 years ago to reduce racial disparities in capital cases have been adopted.

The report, “Broken Promises: How A History of Racial Violence and Bias Shaped Ohio’s Death Penalty” and “Five Facts You Should Know About Ohio’s Death Penalty” are available at this link....

As the report documents, racial discrimination is the throughline that runs from the state’s founding to its application of capital punishment today.  For example, from the early 19th century, Ohio’s Black Laws imposed legal restrictions on the rights and status of Black people in the state, including barring Black people from jury service.  In 1807, Ohio adopted a “Negro Evidence Law” which prohibited Black people from testifying against white people, establishing a legal double standard.  In the 19th and early 20th centuries, lynch mobs tortured and killed Black men after accusing them of raping white women without evidence.  Even when photos were taken in broad daylight of lynch mob participants, they rarely faced legal consequences for these extrajudicial murders.

As the report reveals, race, especially the race of the victim, continues to play an outsized role in Ohio’s death penalty system.  For example, homicides involving white female victims are six times more likely to result in execution compared to those involving Black male victims, despite the majority of murder victims in the state being Black. Similarly, a study of aggravated murder charges in Hamilton County shows that prosecutors are four and a half times more likely to seek the death penalty if there is at least one white victim, compared to similar cases without white victims....

“Broken Promises” builds upon DPIC’s 2020 report, “Enduring Injustice: The Persistence of Racial Discrimination in the U.S. Death Penalty.” It is the fourth in a series of reports detailing how individual state histories of racial injustice affect the current use of capital punishment. In 2023, DPIC released “Doomed to Repeat: The Legacy of Race in Tennessee’s Contemporary Death Penalty” and “Compromised Justice: How A Legacy of Racial Violence Informs Missouri’s Death Penalty Today.” In 2022, DPIC released “Deeply Rooted: How Racial History Informs Oklahoma’s Death Penalty.

"Gender Matters: Women on Death Row in the United States"

The title of this post is the title of this new article now available via SSRN and authored by Sandra Babcock, Nathalie Greenfield and Kathryn Adamson.  Here is its abstract:

This article presents a comprehensive study of 48 persons sentenced to death between 1990 and 2023 who presented as women at the time of their trials.  Our research is the first of its kind to conduct a holistic and intersectional analysis of the factors driving women’s death sentences.  It reveals commonalities across women’s cases, delving into their experiences of motherhood, gender-based violence and prior involvement with the criminal legal system.  We also explore the nature of the women’s crimes of conviction, including the role of male co-defendants and the State’s use of aggravating factors.  Finally, we reveal for the first time the extent to which capital prosecutions are dominated by men — including judges, elected District Attorneys, defense attorneys, and juror forepersons — and explain why gender matters in determining who lives and who dies.

We present our data against the backdrop of prevalent theories that seek to explain both the rarity of women’s executions and the reasons why certain women are singled out for the harshest punishment provided by law.  We explain why those frameworks are inadequate to understand the role that systemic gender bias plays in women’s capital prosecutions.  We conclude by arguing for more nuanced research that embraces the complexities in women’s capital cases and accounts for the presence of systemic and intersectional discrimination.

"State Sentencing Reforms Had Little Impact on Racial Disparities in Imprisonment, Analysis Finds"

The title of this post is the the title of this new press release from the Council on Criminal Justice (CCJ) discussing the latest findings of research it has been conducting looking at incarceration disparities.  Here is part of the press release, with lnks from the original providing access to the underlying research:

The Black-White disparity in imprisonment has narrowed substantially over the past 20 years but very little of the progress can be attributed to state sentencing reforms, according to a series of reports released today by the Council on Criminal Justice (CCJ).

Following on previous analyses that documented a 40% drop in the Black-White imprisonment disparity between 2000 and 2020, researchers at CCJ, Georgia State University, and the Crime and Justice Institute examined more than 700 statutes adopted in 12 states between 2010 and 2020, seeking to understand how sentencing reforms might have influenced the reduction.  Laws included for study related to violent, property, and drug crimes, as well as parole release and technical violation practices.  The study states (Arizona, California, Colorado, Florida, Georgia, Illinois, New York, North Dakota, Pennsylvania, South Carolina, Texas, and Utah) varied by region, demographic composition, sentencing structure, and the political party in power.

With minor exceptions, the analysis found that the sentencing reforms had negligible impacts on reducing racial disparities, and instead largely codified changes to enforcement, policing, charging, and sentencing practices that had occurred before the laws were enacted. In addition, many sentencing law changes that took effect during the study period addressed fairly infrequent crimes and therefore had a minimal effect on disparity. 

The findings suggest that factors beyond sentencing laws were mostly responsible for the Black-White imprisonment disparity declining from 8.2-to-1 in 2000 to 4.9-to-1 in 2020. Though the study did not statistically assess alternative explanations, the authors offered several other possible reasons for the shrinking disparity, including changes in policing practices, drug use (from cocaine to opioids), how drugs are sold (from open-air markets to the use of GPS-equipped smartphones), and the types of crimes people commit (from burglary to cybercrime, for example)....

The 12-state analysis is part of a sweeping package on racial disparities released by CCJ’s Pushing Toward Parity project. It includes an in-depth look at the legislative changes in each of the 12 study states as well as two reports examining disparities in imprisonment through other lenses.

One analysis examined state imprisonment disparities between Hispanic and non-Hispanic White people.  It found that disparity in imprisonment rates declined during the first two decades of the century, but that the precise size of the drop is unclear because of a conflict between data sources. In 2020, data collected from state corrections departments showed a Hispanic-White disparity ratio of 1.5-to-1; data from a federal prison survey, however, produced a ratio that was 2.7-to-1, or 80% larger. 

The gap in disparity ratios derived from each source has increased over time.  In 2000, the two disparity ratios were roughly equivalent, but by 2020 the federal data disparity ratio was 80% larger.  The measurement gap stems from how race and ethnicity are recorded and classified in each source.  The choice of measurement method makes a large difference in the projected achievement of parity: if current trends continue, the Hispanic-White disparity measure drawn from state data would reach parity by about 2026, while the measure from federal data would reach parity about 30 years later.

Another analysis focused on disparities in female prison populations. It found that state imprisonment disparity between Black and White women fell by 71% between 2000 and 2020, decreasing from 6.3-to-1 to 1.8-to-1 and exceeding the drop for men.  The decline was driven by a 56% decline in the imprisonment rate for Black women and a 57% increase for White women.  Hispanic-White female imprisonment rate disparity also fell (by 56%) over the two-decade period, data from state corrections departments showed; it has been at or below parity since 2010 and reached 0.7-to-1 in 2020, meaning that White women were more likely to be imprisoned than Hispanic women.

Female imprisonment disparity fell across violent, property, and drug offense categories, with the largest drop recorded for drug crimes.  From 2000 to 2020, Black-White drug offense imprisonment disparity among women dropped from 8 to 0.6, reaching parity in 2016.  Hispanic-White drug offense imprisonment disparity fell from 2.4 in 2000 to 0.5 in 2020. Changes in the demographic composition of prison admissions drove the trends.  From 2000 to 2019, admissions decreased 47% for Black females, increased 15% for Hispanic females, and rose 138% for White females. 

Defender groups file FOIA seeking records on DOJ's implementation of December 2022 charging and sentencing memos

As reported in this press release, yesterday the "American Civil Liberties Union, the National Association of Criminal Defense Lawyers, and the Federal Public & Community Defenders submitted a Freedom of Information Act (FOIA) request ... seeking public records detailing the Department of Justice’s implementation of December 2022 memoranda establishing new policies for all federal prosecutors’ charging and sentencing practices."  Here is some context from the press release:

On Dec. 16, 2022, Attorney General Merrick Garland issued two memoranda requiring federal prosecutors to make important changes in how they litigate criminal cases.  These changes include charging crack cocaine offenses like powder cocaine offenses in order to avoid unwarranted and racially disparate sentencing outcomes; and reserving charges that carry a mandatory minimum sentence for cases in which the other charges (i.e., those for which the elements are also satisfied by the accused person’s conduct, and do not carry mandatory minimum terms of imprisonment) would not sufficiently reflect the seriousness of the person’s alleged criminal conduct, danger to the community, or harm to victims.

The new policies have been in effect for over one year, but the Federal Public & Community Defenders have received information from attorneys in multiple federal court districts indicating that federal prosecutors are not uniformly abiding by the two memoranda....

The ACLU, NACDL, and FPD seek wide ranging information on implementation of the memoranda, including:

• Data collected in software developed by the Justice Department to track charges brought by the DOJ that include mandatory minimum sentences, and related policy directives and training materials;
• Information related to compliance with the memoranda, including the percentage of charging documents and plea agreements that include charges with mandatory minimum sentences; and
• Further guidance the Justice Department has issued to ensure federal prosecutors seek equal treatment for crack and powder cocaine offenses through their charging and sentencing practices.

The FOIA request highlights the impact, if properly implemented, of the memoranda’s requirement that federal prosecutors exercise greater restraint in using mandatory minimums.  “Reducing the use of mandatory minimums can also ameliorate racial disparities in the sentence lengths between similarly situated Black and white federal defendants. Research has shown that ‘[t]he initial mandatory minimum charging decision alone is capable of explaining more than half of the black-white sentence disparities not otherwise explained by pre-charge characteristics,’” the request reads.

The full 18-page FOIA request is available at this link.

Prior related posts:

• US Attorney General Garland releases new federal charging guidelines that include instructions to treat crack like powder cocaine
• Wondering about the impact of AG Garland's new charging and sentencing memos 

GAO releases big report examining BOP's use of "restrictive housing"

The United States Government Accountability Office recently released this big new report titled "Bureau of Prisons: Additional Actions Needed to Improve Restrictive Housing Practices." An introduction one-page to the document discusses "Why GAO Did This Study" and "What GAO Recommends" and "What GAO Found," and here are excerpts from this discussion:

DOJ’s BOP is responsible for confining individuals in safe, humane, and appropriately secure conditions. In certain circumstances, such as alleged or substantiated violence, BOP can move individuals to restrictive housing, and generally isolate them in cells for up to 23 hours per day. As of October 2023, BOP continued to house about 8 percent of its population (about 12,000 individuals) in these settings. Strengthening management of federal prisons was added to GAO’s high-risk list earlier this year.

Among its objectives, GAO was asked to examine the extent to which BOP (1) addressed recommendations from two prior restrictive housing studies; and (2) leveraged facility information to ensure restrictive housing policy compliance and enhance operations.

GAO analyzed BOP policies and data; interviewed BOP officials; and conducted non-generalizable interviews with staff and incarcerated individuals at five BOP facilities— selected to cover a range of restrictive housing unit types.

GAO is making eight recommendations to BOP, including that it assign responsibility and establish time frames for recommendation implementation and identify the cause of racial disparity in SMU placements. BOP concurred with the eight recommendations but raised related concerns; GAO discusses these in the report.

The Bureau of Prisons (BOP) has not fully implemented 54 of the 87 recommendations from two prior studies on improving restrictive housing practices. The first study, completed by a BOP contractor in 2014, had 34 recommendations (16 of which are fully implemented.) The other evaluation, completed in 2016 by the Department of Justice (DOJ), had 53 recommendations (17 of those are fully implemented). A May 2022 Executive Order on criminal justice practices directed the Attorney General to ensure full implementation of the January 2016 recommendations. BOP has made slow progress due in part to not assigning responsibility for recommendation implementation to appropriate officials and not establishing associated time frames for completion....

During the 2014 contracted assessment, reviewers found inconsistencies in the application of subjective criteria used to place individuals in the special management unit (SMU)—one that is designed for individuals with heightened security concerns. GAO’s analysis of 2022 data appears to confirm that inconsistencies continued, resulting in equity concerns. Black individuals were 38 percent of the total BOP population but 59 percent of the SMU placements. In comparison, White individuals were 58 percent of the total BOP population and 35 percent of the SMU placements. In response to management challenges, earlier this year BOP closed its remaining SMU and has not yet decided on the future of such units. Analyzing the cause of the substantial racial disparity could inform BOP and DOJ decisions on the future of restricted housing and help ensure consistent and equitable treatment of incarcerated individuals.

The Sentencing Project releases final report on racial disparities, "One in Five: How Mass Incarceration Deepens Inequality and Harms Public Safety"

As noted in this October post, The Sentencing Project has been producing what it describes as "a series of four reports examining both the narrowing and persistence of racial injustice in the criminal legal system, as well as highlighting promising reforms."  Today, The Sentencing Project released this latest and last report in this series, titled "One in Five: How Mass Incarceration Deepens Inequality and Harms Public Safety."  Here is a starting part of this new report's executive summary:

The previous installment of the One in Five series examined three drivers of racial disparity from within the criminal legal system: disparate racial impact of laws and policies, racial bias in the discretion of criminal legal professionals, and resource allocation decisions that disadvantage low-income people.6 This final installment of the series presents a fourth driver of disparity in imprisonment which relates to the damaging consequences of criminal legal contact—contact that is disproportionately experienced by communities of color.

Specifically, this report explores laws and policies that exacerbate socioeconomic inequalities by 1) imposing financial burdens and collateral consequences on people with criminal convictions and 2) diverting public resources from effective interventions to promote public safety.

Prior related posts:

• Sentencing Project releases first in series of reports on the "narrowing and persistence" of racial disparities CJ system
• The Sentencing Project releases latest report on racial disparities, “One in Five: Disparities in Crime and Policing”
• The Sentencing Project releases latest report on racial disparities, "One in Five: Racial Disparity in Imprisonment - Causes and Remedies"

"Race, class, and criminal adjudication: Is the US criminal justice system as biased as is often assumed? A meta-analytic review"

The title of this piece is the title of this notable new article authored by Christopher Ferguson and Sven Smith that a helpful reader flagged for me. This article will be published in the journal Aggression and Violent Behavior, and here is its abstract:

It is widely reported that the US criminal justice system is systematically biased in regard to criminal adjudication based on race and class.  Specifically, there is concern that Black and Latino defendants as well as poorer defendants receive harsher sentences than Whites or Asians or wealthier defendants.  We tested this in a meta-analytic review of 51 studies including 120 effect sizes.  Several databases in psychology, criminal justice and medicine were searched for relevant articles.  Overall results suggested that neither class nor race biases for criminal adjudications for either violent or property crimes could be reliably detected.

For all crimes, effect sizes (in terms of r) for Black vs White comparisons were.054, for Latinos vs Whites, 0.057 and for Asians vs Whites −0.028. There was significant heterogeneity between studies, particularly for Asian vs White comparisons.  Effect sizes were smaller than our evidentiary threshold, indicating they are indistinguishable from statistical noise.  For drug crimes, evidentiary standards were met, although effect sizes were very small.  Better quality studies were less likely to produce results supportive of disparities. Studies with citation bias produced higher effect sizes than did studies without citation bias suggesting that researcher expectancy effects may be driving some outcomes in this field, resulting in an overestimation of true effects.  Taken together, these results do not support beliefs that the US criminal justice system is systemically biased at current. Negativity bias and the overinterpretation of statistically significant “noise” from large sample studies appear to have allowed the perception or bias to be maintained among scholars, despite a weak evidentiary base. Suggestions for improvement in this field are offered. Narratives of “systemic racism” as relates to the criminal justice system do not appear to be a constructive framework from which to understand this nuanced issue.

"Abolish or Reform? An Analysis of Post-Release Supervision for Low-Level Offenders"

The title of this post is the title of this notable new empirical article authored by Ryan Sakoda now available via SSRN.  Here is its abstract:

At year-end 2021, there were nearly four million individuals serving a term of probation, parole, or post-release supervision in the United States.  This paper uses a unique and detailed dataset to study two distinct changes to state law that eliminated and then reinstated post-release supervision for low-level offenders in Kansas.  Each of these changes occurred in very different periods of criminal justice policy (2000 and 2013 respectively), but yielded the same result: post-release supervision caused large increases in reimprisonment with no detectable impact on reoffending.

I find that the elimination of post-release supervision in 2000 decreased the one-year reimprisonment rate of affected individuals by 28.5 percentage points (from a baseline of 35 percent).  In 2013, the reinstatement of post-release supervision caused a 17.5 percentage point increase in reimprisonment (bringing the reimprisonment rate back to approximately 30 percent) with no detectable decrease in reoffending.  Furthermore, I find that the elimination of post-release supervision in 2000 completely closed the racial gap in reimprisonment rates among the impacted individuals.  These results provide support for policies that would reduce the use of community supervision, not only to lower reincarceration rates, but as a promising opportunity to eliminate a major source of racial inequality in the criminal legal system.

The Sentencing Project produces new fact sheets on "Racial and Ethnic Disparities in Youth Incarceration"

I received via email an alter that The Sentencing Project has produced "new fact sheets show state-by-state incarceration rates by race and ethnicity" with respect to "youth incarceration."  These facts sheets are accessible at this link, and here is how the work is described at that webpage:

Despite significant drops in youth incarceration over a decade, youth of color remain vastly more likely to be incarcerated than their white peers.  New data released today by The Sentencing Project reveal Black youth and Tribal youths’ disproportionate incarceration is largely unchanged compared to 10 years prior, while Latinx youths’ incarceration disparities with their white peers have been reduced.

The Sentencing Project’s new fact sheets show state-by-state incarceration rates by race and ethnicity and highlight where the problem is getting worse and better.

The Sentencing Project releases latest report on racial disparities, "One in Five: Racial Disparity in Imprisonment - Causes and Remedies"

As noted in this October post, The Sentencing Project is "producing a series of four reports examining both the narrowing and persistence of racial injustice in the criminal legal system, as well as highlighting promising reforms."  Today, The Sentencing Project released this latest report in this series, the third I believe, titled "One in Five: Racial Disparity in Imprisonment — Causes and Remedies."  Here is part of this new report's executive summary:

The United States experienced a 25% decline in its prison population between 2009, its peak year, and 2021.  While all major racial and ethnic groups experienced decarceration, the Black prison population has downsized the most.  But with the prison population in 2021 nearly six times as large as 50 years ago and Black Americans still imprisoned at five times the rate of whites, the crisis of mass incarceration and its racial injustice remain undeniable. What’s more, the progress made so far is at risk of stalling or being reversed.

This third installment of the One in Five6 series examines three key causes of racial inequality from within the criminal legal system. While the consequences of these policies and issues continue to perpetuate racial and ethnic disparities, at least 50 jurisdictions around the country — including states, the federal government, and localities — have initiated promising reforms to lessen their impact.

1. Laws and policies that appear race-neutral have a disparate racial impact....

2. Racial bias influences criminal legal practitioners’ use of discretion....

3. A financially burdensome and under-resourced criminal legal system puts people with low incomes, who are disproportionately people of color, at a disadvantage....

Prior related posts:

• Sentencing Project releases first in series of reports on the "narrowing and persistence" of racial disparities CJ system
• The Sentencing Project releases latest report on racial disparities, “One in Five: Disparities in Crime and Policing”

DPIC releases new report focused on racial history of Missouri’s death penalty

As reported in this DPIC press release, "the Death Penalty Information Center (DPIC) released a report that documents how racial bias and violence affected the past use of the death penalty in Missouri and how that history continues to influence the current administration of capital punishment in the state."  The full 43-page report, titled "Compromised Justice: How A Legacy of Racial Violence Informs Missouri’s Death Penalty Today," is available here.  The executive summary can be found here, and here is how it begins:

Missouri is one of a handful of states that has consistently executed people in the last five years.  In 2023, Missouri executed four people.  Understanding the historical application of the death penalty in Missouri helps our understanding of how capital punishment is used today.

Historically, Missouri’s Death Penalty Was Applied Discriminatorily Based on Race

Decades before Missouri gained statehood, the territory adopted capital punishment laws that were applied based on race.  There were at least four crimes that could only be tried capitally if committed by an enslaved person.  After Missouri became a state in 1821 and had adopted superficially race-neutral capital punishment laws, the death penalty continued to be applied discriminatorily: enslaved people were four times more likely to be executed than white Missourians before 1865.

Missouri Has a Substantial History of Racial Violence Directed at Black Missourians

The first documented lynching in U.S. history happened in Missouri in 1838. By the late 1800s, racial terror lynchings had increased in regularity, particularly in Southern, former slave-holding states.  Throughout the 19th and 20th centuries, at least 60 Black Missourians were killed in lynchings, making it the state with the second highest number of racial terror lynchings outside of the South.

Although the number of lynchings declined, public executions continued in Missouri longer than all but one other state.  Public executions were a form of racial violence: there are examples of sheriffs providing execution attendees with souvenirs such as pieces of the ropes used to hang Black people and even the victim’s body parts.  After a quadruple execution in St. Louis, a drug store owner was permitted to display the severed head of a Black person who was executed in his shop.  The constant reminders of brutal lynchings and executions were used by white people to continually threaten and intimidate Black people.

New US Sentencing Commission releases new updated report on "Demographic Differences in Federal Sentencing"

The US Sentencing Commission this morning released this notable new research report titled "Demographic Differences in Federal Sentencing."  As noted in this 2020 post, the USSC has completed similar reports looking at federal sentencing outcomes and the way its advisory guidelines function about every five or six years since the Booker ruling, and this latest report is summarized on this USSC webpage in this way:

The Commission has studied the issue of demographic differences in sentencing throughout its history.  In four prior reports, studying various time periods, the Commission has examined whether differences in the length of federal sentences imposed on individuals were associated with demographic characteristics of those individuals. 

Based on continued interest in this issue and consistent with best practices, the Commission re-examined and refined the analytical methods used in its previous reports to better understand sentencing disparity in the federal courts. Using new analytical techniques and newly available data, this report examines federal sentencing practices in the five fiscal years after the 2017 report to determine if the differences observed in the Commission’s prior reports continued to persist. 

This report presents the results of that work, and furthers the Commission’s mandates to establish sentencing policies and practices that eliminate unwarranted sentencing disparities and to serve as a center for information on federal sentencing practices.

The USSC webpage also sets forth these "Key Findings":

Sentencing differences continued to exist across demographic groups when examining all sentences imposed during the five-year study period (fiscal years 2017-2021). These disparities were observed across demographic groups — both among males and females.

• Specifically, Black males received sentences 13.4 percent longer, and Hispanic males received sentences 11.2 percent longer, than White males.
• Hispanic females received sentences 27.8 percent longer than White females, while Other race females received sentences 10.0 percent shorter.

The sentencing differences in the data the Commission examined largely can be attributed to the initial decision of whether the sentence should include incarceration at all rather than to the length of the prison term once a decision to impose one has been made. In particular, the likelihood of receiving a probationary sentence varied substantially by gender and race.

• Black males were 23.4 percent less likely, and Hispanic males were 26.6 percent less likely, to receive a probationary sentence compared to White males.
• Similar trends were observed among females, with Black and Hispanic females less likely to receive a probation sentence than White females (11.2% percent less likely and 29.7% less likely, respectively).

The sentencing differences were less pronounced when the analyses focused solely on cases in which a sentence of imprisonment was imposed, which comprise 94 percent of all cases sentenced during the five-year study period.

• Focusing solely on these cases, Black males received lengths of incarceration 4.7 percent longer, and Hispanic male received lengths of incarceration 1.9 percent longer, than White males.
• There was little difference among females receiving a sentence of imprisonment. The only statistically significant difference in the length of imprisonment among females was among Hispanic females, who received lengths of incarceration 5.9 percent shorter than White females.

Differences in the length of imprisonment across demographic groups were concentrated among individuals who received relatively short sentences.

• Among individuals sentenced to 18 months or less incarceration, Black males received lengths of incarceration 6.8 percent longer than White males. The difference narrowed to 1.3 percent for individuals who received sentences of greater than 18 months to 60 months; but for sentences longer than 60 months, Black males received lengths of incarceration approximately one percent shorter than White males. Few differences were statistically significant when comparing sentences for females.

Across all analyses, females received sentences that were shorter, on average, than males.

• When examining all sentences imposed, females received sentences 29.2 percent shorter than males. Females of all races were 39.6 percent more likely to receive a probation sentence than males. When examining only sentences of incarceration, females received lengths of incarceration 11.3 percent shorter than males.

The Sentencing Project releases latest report on racial disparities, “One in Five: Disparities in Crime and Policing”

As noted in this post last month, The Sentencing Project has announced that it is "producing a series of four reports examining both the narrowing and persistence of racial injustice in the criminal legal system, as well as highlighting promising reforms." Today, The Sentencing Project released this latest report in this series, the second I believe, titled “One in Five: Disparities in Crime and Policing.” Here is part of the report's executive summary:

As noted in the first installment of this One in Five series, scholars have declared a “generational shift” in the lifetime likelihood of imprisonment for Black men, from a staggering one in three for those born in 1981 to a still troubling one in five for Black men born in 2001....

This report interrogates the large footprint of policing — particularly of Black Americans— as, in part, a failed response to racial disparities in serious crimes. The wide net that police cast across people of color is at odds with advancing safety because excessive police contact often fails to intercept serious criminal activity and diminishes the perceived legitimacy of law enforcement.  Excessive policing also distracts policymakers from making investments to promote community safety without the harms of policing and incarceration. In addition, the large footprint of policing gets in the way of, as the National Academies of Sciences has called for, needed “durable investments in disadvantaged urban neighborhoods that match the persistent and longstanding nature of institutional disinvestment that such neighborhoods have endured over many years.”...

Ending racial inequity in the criminal legal system requires both effectively tackling disparities in serious criminal behavior and eliminating excessive police contact.  The subsequent installments of this One in Five series will examine additional drivers of disparity from within the criminal legal system and highlight promising reforms from dozens of jurisdictions around the country.

Prior recent related post:

• Sentencing Project releases first in series of reports on the "narrowing and persistence" of racial disparities CJ system

Sentencing Project releases first in series of reports on the "narrowing and persistence" of racial disparities CJ system

The Sentencing Project has released this new report today titled "One in Five: Ending Racial Inequity in Incarceration." The report's lengthy executive summary provides an overview of the report's these and concludes by nothing this report is the first in a series. Here are excerpts from the start and close of the executive summary:

Following a massive, four-decade-long buildup of incarceration disproportionately impacting people of color, a growing reform movement has made important inroads.  The 21st century has witnessed progress both in reducing the U.S. prison population and its racial and ethnic disparities.  The total prison population has declined by 25% after reaching its peak level in 2009. While all major racial and ethnic groups experienced decarceration, the Black prison population has downsized the most.  The number of imprisoned Black Americans decreased 39% since its peak in 2002.  Despite this progress, imprisonment levels remain too high nationwide, particularly for Black Americans.

Reforms to drug law enforcement and to sentencing for drug and property offenses, particularly those impacting urban areas which are disproportionately home to communities of color, have fueled decarceration and narrowed racial disparities.  These trends have led scholars to declare a “generational shift” in the lifetime likelihood of imprisonment for Black men.  This risk has fallen from a staggering one in three for those born in 1981 to a still troubling one in five for Black men born in 2001.  Black women have experienced the sharpest decline in their imprisonment rate, falling by 70% between 2000 and 2021.

But ... progress in reducing racial disparity in the criminal legal system is incomplete and at risk of stalling or being reversed....

To help protect and expand the progress made so far, The Sentencing Project is producing a series of four reports examining both the narrowing and persistence of racial injustice in the criminal legal system, as well as highlighting promising reforms.  This first installment presents an overview of trends in prison and jail incarceration and community supervision. The next installment will examine the high levels of contact that police initiate, particularly with people of color, as well as differential crime rates.  The final reports will examine key drivers of disparity from within the criminal legal system and promising reforms from dozens of jurisdictions around the country.

Notable defender amicus briefs submitted in support of Second Amendment claims in Rahimi

This week brought the final submission of the main merits and amicus briefs in the Supreme Court for the case of US v. Rahimi, which will address (at least) one aspect of how the landmark Bruen Second Amendment case applies to federal firearm possession criminalization.  In this post a couple of year ago, I flagged this notable amicus brief filed by various defender offices in support of expanding Second Amendment rights in Bruen.  Looking over the recent amicus filings, I noticed at least three different defense submission on behalf of the defendant in Rahimi.  A quick scan of some of these briefs reveals a number of notable passages, and I thought the very start of this brief from some California public defender groups highlighted some of the dimensions of this latest notable high-profile Second Amendment litigation:

The State of California aggressively criminalizes the possession of firearms.  We have seen that this disproportionately affects people of color, particularly Black people.  Since New York State Rifle & Pistol Association, Inc. v. Bruen, 142 S. Ct. 2111 (2022), we have litigated hundreds of motions seeking to bring California’s expansive gun regulations in line with the Second Amendment.  And we have found the difference between punishment and freedom often depends on how our courts interpret “law-abiding responsible citizens.”  We have also seen our clients in California face criminal prosecution for violating civil disarmament orders that sweep far beyond domestic violence.

As to the particular statute at issue in this case, 18 U.S.C. Section 922(g)(8), we acknowledge the need to protect people from domestic violence.  Many of our clients are themselves victims of domestic violence.  But we also have first-hand experience fighting the rote issuance of civil protective orders that deny our clients their Second Amendment rights and lead to unjust, unequal criminal prosecutions.

A few prior related posts:

• New district court opinion "holds that § 922(g)(8) is unconstitutional under Bruen's framework"
• Fifth Circuit panel declares unconstitutional federal prohibition on firearm possession for someone subject to domestic violence restraining order
• Some early commentary on SCOTUS Second Amendment review of federal gun prohibition in Rahimi
• Some more commentary on SCOTUS Second Amendment review of federal gun prohibition in Rahimi

"Cheap on Punishment: Examining the Impact of Prison Population Racial Demographics on State-Level Corrections Spending"

The title of this post is the title of this new article authored by Joshua Williams and Paige Vaughn recently published online at Justice Quarterly.  Here is its abstract:

Research has explored the effects of various state-level characteristics, such as racial composition and economic conditions, on correctional budgetary decisions.  However, researchers have yet to consider how the racial makeup of state prison populations themselves may impact subsequent corrections spending decisions.  Drawing on work suggesting that people of color are simultaneously over-punished and neglected by criminal justice systems, and utilizing a time-series cross-section analysis of 50 states from 1979 through 2017, we explore differences in state budgetary allocations for correctional expenditures based on the racial demographics of prison populations.  We find that the relationship between the Black-to-White incarceration ratio and spending on corrections is curvilinear: once a tipping point of Black-to-White incarceration is reached, spending on corrections decreases.  This finding is especially pronounced in Southern and Midwestern states.  Overall, our results provide a strong starting point for understanding the ways in which Black Americans are neglected in the incarceration setting.

Prison Policy Initiative provide updated data on "incarceration stats by race, ethnicity, and gender" in all states

Prison Policy Initiative has this new briefing by Leah Wang fully titled "Updated data and charts: Incarceration stats by race, ethnicity, and gender for all 50 states and D.C.: New data visualizations and updated tables show the national landscape of persistent racial disparity in state prisons and local jails."  here is how the briefing begins (with links from the original):

The best and latest criminal legal system data are often scattered across different government agencies, in incompatible formats, and difficult to compare.  To make the most useful information more accessible, we make the underlying data for our timely reports and briefings available in our Data Toolbox, and create state-specific graphics on our comprehensive State Profiles pages.  Today, we’ve added a rich new series of resources for our users of our work:

First, we now have a downloadable spreadsheet of the most recently available incarceration data for people in state prisons and in local jails, by race and ethnicity and by sex, for all 50 states and D.C.  Unlike other datasets, ours provides apples-to-apples state comparisons in three formats (counts, rates, and percentages): We’ve done the math to standardize incompatible measurements found in the various original data sources.

Second, we’ve updated over 100 of the key graphics on our State Profiles pages showing prison and jail incarceration rates by race and ethnicity, and how the racial composition of each state’s prisons and jails compare to the total state population.

"Quantifying disparate questioning of Black and White jurors in capital jury selection"

The title of this post is the title of this article recently published in the Journal of Empirical Legal Studies and authored by Anna Effenberger, John Blume and Martin Wells. Here is its abstract:

This article presents findings from a quantitative study of jury selection using computational natural language processing methods.  We analyzed the voir dire in a set of South Carolina capital trials cases used in previous studies to see if there was evidence of disparate questioning of potential jurors by the prosecution, defense counsel of the trial judge.  More specifically, we examined the descriptiveness and complexity of questioning.  Our results, presented here, revealed significant, but sometimes subtle, disparate questioning of Black venire persons, especially by the prosecution.

The natural language processing software used in this study could provide attorneys challenging the use of peremptory challenges on appeal as being based on race or gender discrimination with evidence relevant to the issue of disparate questioning, which is often a pretext for purposeful discrimination.  It could also potentially be used at trial since the analysis can be conducted almost instantaneously.  Using it at either stage of the proceedings could be a powerful tool in achieving the goal of having more diverse juries in criminal cases, especially where the death penalty is a potential punishment.

A couple of notable new sentencing articles from JCLC Online

I just came across a couple of interesting new sentencing pieces recently published by the Journal of Criminal Law an Criminology Online. Here are titles and links (where you can find abstracts and can download the full articles):

Sarah Turner, "White-Collar Crime, Sentencing Gender Disparities Post-Booker, and Implications for Criminal Sentencing" 

Elizabeth E. Wainstein, "The Need for Fairness and Accuracy for Women in Sentencing: Surmounting Challenges to Gender-Specific Statistical Risk Assessment Tools"

"The 'New' Drug War"

The title of this post is the title of this notable new paper authored by Jennifer Oliva and Taleed El-Sabawi.  Here is its abstract:

American policymakers have long waged a costly, punitive, racist, and ineffective drug war that casts certain drug use as immoral and those that engage in it as deviant criminals.  The War on Drugs has been defined by a myopic focus on controlling the supply of drugs that are labeled as dangerous and addictive.  The decisions as to which drugs fall within these categories have neither been made by health agencies nor based on scientific evidence.  Instead, law enforcement agencies have been at the helm of the drug war advocating for and enforcing prohibition.

The drug war has been a failure on all counts. American taxpayers have invested trillions of dollars in the war, yet the United States continues to witness record-setting numbers of drug overdose deaths every year.  The drug war has been used as a tool to disenfranchise and incarcerate generations of individuals minoritized as Black.  Black Americans are nearly six times more likely to be incarcerated for drug-related offenses than their white counterparts, notwithstanding that substance use rates are comparable across those populations.

The public rhetoric concerning drug use has notably changed in recent years.  Many policymakers have replaced the punitive, law and order narratives of the Old Drug War with progressive, public health-oriented language, which suggests that the Old Drug War has ended.  We, however, caution against such a conclusion.  This paper examines three categories of laws and policies that attend to individuals who use drugs under our country’s new, and purportedly public health-centric, approach: (1) laws that increase surveillance of certain drugs or those who use them; (2) the criminalization and civil punishment of the symptoms or behaviors related to drug use; and (3) laws that decrease access to treatment and harm reduction programs.

Our assessment of these policies demonstrates that the War on Drugs is not over.  It has merely been retooled, recalibrated, and reframed.  The “New” Drug War may be concealed with public health-promoting rhetoric, but it is largely an insidious re-entrenchment of the country’s longstanding, punitive approach to drug use.

Highlighting new research with encouraging news about incarceration trends

Writing in the Washington Post, Charles Lane has this great new opinion piece headlined "New data show a dire forecast about incarceration rates didn’t come true." I recommend the whole piece, and here are a few highlights:

Few data points have more dramatically illustrated the disparate racial impact of incarceration in the United States than this statistic, first calculated in a 2003 Justice Department-sponsored study: If imprisonment rates remained the same as they were in 2001, then 1 out of every 3 Black men born that year could expect to be put behind bars during his lifetime. The figure for White men, by contrast, was 1 of every 17.  Hammered home in political speeches, media coverage and activist websites, that projection did much to galvanize public opinion in favor of criminal justice reform.

And yet it did not actually materialize.  The overall U.S. incarceration rate peaked in the three-year period of 2006 to 2008, according to Pew Research, and it has been declining since then.  What’s more, the rate for Black men fell faster during the past two decades than that for White men (and other groups), contrary to expectations in 2003 — and to much conventional wisdom today.

Therefore, since the 2003 Justice Department study appeared, chances that Black men would not go to prison improved so much that the actual lifetime “incarceration risk” for those born in 2001 turned out to be fewer than 1 in 5 — about 40 percent lower than the oft-cited 1 in 3 figure.  This outcome connotes a modest, but real, reduction in racial inequality generally.  Amid a national criminal justice debate that often understandably focuses on the problems and injustices that still need to be solved, encouraging data deserve attention, too.

The hopeful findings about racially disparate incarceration rates emerge from a study to be published this week in the peer-reviewed journal Demography.  It includes such remarkable data as the fact that, whereas 5,159 out of every 100,000 Black men were imprisoned in 1999, the rate had fallen to 2,881 per 100,000 by 2019 — a 44 percent decrease. In that period, almost every state saw a decline in its incarceration rate for Black men....

The news gets better.  Partly as a result of these positive trends, Black men are now more likely to have earned a bachelor’s degree by age 25 than to have been in prison: The respective population shares, as of 2019, are 17.7 percent and 12 percent.  As recently as 2009, the opposite was the case, with 17.4 percent of 25-year-old Black men having gone to prison but only 12.8 percent having finished college. ...

Optimistically, but plausibly, the study argues that the generation of Black men — and, indeed, of all U.S. residents — born after 2001 “is facing a distinctly reduced risk of imprisonment.”  This is because rates of criminal behavior and arrest fell over the past two decades, relative to the 1980s and 1990s; the effects of this trend “will likely compound into even lower rates of incarceration as they age.”

The study acknowledges that U.S. crime and incarceration rates are still well above those of peer nations.  Although the Black-White ratio in male incarceration rates fell from 9.3 to 1 in 1999 to 6.1 to 1 in 2019, that unacceptable disparity “remains quite large,” the study notes.  “There is plenty more progress to be made,” the study’s lead author, sociologist Jason P. Robey of the University at Albany’s School of Criminal Justice, told me.

It might help to achieve that progress if the new Demography study, co-authored by sociologists Michael Massoglia and Michael T. Light, both of the University of Wisconsin at Madison, had provided an account of exactly why incarceration generally, and Black male incarceration in particular, has declined, but such explanations lie beyond the scope of their research.  Less punitive enforcement policies on nonviolent drug offenses, as well as other recent reforms intended to limit racially disparate incarceration, are undoubtedly part of the story.  And of course continued downward trends in imprisonment depend on preventing crime itself from spiraling upward.  The Demography study warns, appropriately, that positive trends are “reversible.”...

Alarming data on what the study labels the “incarceration boom” supplied one necessary ingredient to the criminal justice reform movement: urgency.  Statistical evidence of progress can provide another: hope.

The research article referenced in this opinion piece is authored by Jason P. Robey, Michael Massoglia & Michael T. Light and is titled "A Generational Shift: Race and the Declining Lifetime Risk of Imprisonment."

Notable "Racial Injustice Report" released by Philadelphia DA office on Juneteenth

As reported in this local article, headlined "New report finds evidence of racial disparity in Philadelphia police stops and sentencing," the Philadelphia District Attorney's Office released a significant new report on racial disparities in the city's justice system. Here is a partial summary from the press piece:

Black Philadelphians continue to be overrepresented in arrests and criminal charges compared to the broader population. That’s one of the key findings in the District Attorney’s Racial Injustice Report issued Monday. Despite increased focus on that disparity in recent years, the DA’s report finds the gap in treatment for Black residents has worsened as a result of federal, state, and local laws and policies.

To produce the report, the District Attorney’s Transparency Analytics Lab “analyzes data and outcomes that are only accessible to criminal legal system partners in order to provide the public with a transparent accounting of how systemic racism and economic inequality continue to present in — and are compounded by — policing, incarceration, and the criminal courts.”

The report found that between 2015 and 2022, Black defendants were charged at a disproportionately higher rate in seven out of the eight most common criminal categories. It also found that Black and Latino residents convicted of aggravated assault or burglary are “more likely to be sentenced to incarceration than white individuals convicted of the same crime.”

The full 68-page report is available at this link. Here is a portion of the report's discussion of sentencing disparities:

Disparities in sentencing are more pronounced than at any other stage of the criminal legal system.  Black people represent 65% of people sentenced to incarceration and 71% of people sentenced to two or more years, despite representing fewer than 60% of those convicted.  Notably, the disproportionalities in incarceration rates are larger than those at both stops and arrests.

In addition to representing a greater proportion, Black defendants also see a higher absolute number of carceral sentences.  As seen in the figure below, Black defendants receive the longest sentences on average, while white defendants receive the shortest.  Sentence lengths for AAPI and Latinx individuals' range between the two. The seriousness and circumstances of a convicted offense has the greatest impact on sentence length, though prior record can play a role.

Much of the difference in sentence lengths is driven by the seriousness of the convicted crime. However, there are persistent racial disparities when looking at individual offense categories.  Black defendants convicted of burglary, were more likely to receive carceral sentences than white and Latinx defendants, even when accounting for prior convictions and illegal firearm charges.  Latinx defendants convicted of PWID charges are also incarcerated at a higher rate, even when they have no serious prior convictions or illegal firearms charges.

Massachusetts high court rules defense attorney's racism created actual conflict of interest to establish ineffective assistance

The Massachusetts Supreme Judicial Court yesterday issued a notable unanimous ruling concerning defense representation in Commonwealth v. Dew, No. SJC-13356 (Mass. June 15, 2023) (available here). Here is how the opinion for the Court gets started:

The defendant, Anthony J. Dew, is a Black man of the Muslim faith. Indigent and facing multiple felony charges, the defendant was appointed counsel who openly posted, on his social media account, his vitriolic hatred of and bigotry against persons of the Muslim faith; his unabashed anti-Muslim rants were matched only by his equal scorn for and racism against Black persons.  Some of these postings occurred while counsel was representing the defendant. Indeed, counsel's intolerance and prejudice seeped into his representation of the defendant.  At least twice, counsel chastised the defendant for wearing religious garb, demanding that the defendant not wear "that shit" again; once, he refused to speak to the defendant because the defendant was wearing a kufi prayer cap in contravention of counsel's directive.  At their final meeting, counsel advised the defendant to accept a plea deal, which the defendant did. Several years later, counsel's bigotry came to the attention of the Committee for Public Counsel Services (CPCS), which suspended him for no less than one year as a result.  After learning of counsel's anti-Muslim, racist postings, the defendant filed a motion to withdraw his guilty plea and obtain a new trial on the ground that his court-appointed counsel had an actual conflict of interest.

We conclude that the conflict of interest inherent in counsel's bigotry against persons of the defendant's faith and race, which manifested during counsel's representation of the defendant, deprived the defendant of his right to effective assistance of counsel -- a right upon which our entire system of criminal justice depends to ensure a "fair trial."  See Gideon v. Wainwright, 372 U.S. 335, 344 (1963). See also Lavallee v. Justices in the Hampden Superior Court, 442 Mass. 228, 235 (2004), citing Strickland v. Washington, 466 U.S. 668, 685 (1984).  No additional showing of "prejudice" is required.  The motion judge's conclusion to the contrary was in error; we now vacate the defendant's convictions and remand for a new trial.

Notably, the defendant in this case had pleaded guilty, and the lower court had rejected his ineffectiveness claim due to the absence of a showing of clear prejudice.  The Massachusetts SJC explained that such a showing was not needed to make out his constitutional ineffectiveness claim in this context:

Although we cannot know with certainty whether Doyle's actions or inactions during the course of the representation were "motivated by anything other than [the defendant's] best interest," Hodge, 386 Mass. at 168, on the record before us, we cannot credibly assume that Doyle's representation was not affected by his virulent anti-Muslim and racist views, see Ellis, 947 F.3d at 562 (Nguyen, J., concurring) (when defense counsel makes "discretionary decisions in disregard of the client's interests on account of counsel's racism, the cumulative effect will be to impair the defense, but there is no way to pinpoint how it does so").  Importantly, we cannot know whether an attorney who did not share the animus Doyle harbored for persons of the Muslim faith and Black persons would have negotiated a better plea agreement.  Nor can we know whether Doyle's other actions in the case were unaffected by his views regarding Black, Muslim individuals.  Where, as the record shows was the case here, counsel harbors a deep-seated animus for persons of the defendant's race or religion, we cannot presume zealous advocacy; nor can we ask the defendant to prove how his counsel's bigotry might have affected the plea deal or otherwise impaired the representation, especially in view of the record that Doyle's bias reared its head in connection with his treatment of the defendant.  There are "many invisible ways in which counsel's bias could have affected the [proceeding]," Ellis, supra at 563 (Nguyen, J., concurring), and the defendant need not engage in "a speculative inquiry into what might have occurred in an alternate universe" had he been appointed unbiased counsel, Francis, 485 Mass. at 101, quoting Gonzalez-Lopez, 548 U.S. at 150.