Sentencing Law and Policy

Shouldn't federal prosecutors already be doing what they can to minimize the unjust crack-powder sentencing disparity?

At last month's Senate Judiciary Committee Hearing on "Examining Federal Sentencing for Crack and Powder Cocaine," the Biden Administration through the testimony of Regina LaBelle rightly stated that the crack-powder sentencing disparity produces "significant injustice":

The Biden-Harris Administration strongly supports eliminating the current disparity in sentencing between crack cocaine and powder cocaine.  The current disparity is not based on evidence yet has caused significant harm for decades, particularly to individuals, families, and communities of color.  The continuation of this sentencing disparity is a significant injustice in our legal system, and it is past time for it to end.  Therefore, the Administration urges the swift passage of the “Eliminating a Quantifiably Unjust Application of the Law Act,” or the “EQUAL Act.”

In addition, the US Department of Justice submitted testimony (linked below) that rightly stated that "it is long past time" to end the crack-powder sentencing disparity:

The Department strongly supports the legislation, for we believe it is long past time to end the disparity in sentencing policy between federal offenses involving crack cocaine and those involving powder cocaine.  The crack/powder sentencing disparity has unquestionably led to unjustified differences in sentences for trafficking in two forms of the same substance, as well as unwarranted racial disparities in its application.  The sentencing disparity was based on misinformation about the pharmacology of cocaine and its effects, and it is unnecessary to address the genuine and critical societal problems associated with trafficking cocaine, including violent crime.

Download DOJ EQUAL Act Testimony- FINAL

In light of these forceful statements, I have been optimistic that the EQUAL Act might move forward in Congress fairly soon even though the pace of congressional action is always uncertain.  At the same time, I hoped that federal prosecutors under the authority of Attorney General Garland might do what they could ASAP, in the exercise of their charging and sentencing authority, to minimize the impact of the crack-powder disparity as Congress works on a permanent legislative fix.  After all, if DOJ really believes that "it is long past time to end the disparity" and that the disparity is based on "misinformation" which produces "unwarranted racial disparities," then a department purportedly committed to justice surely ought not keep charging crack mandatory minimums and advocating for guideline sentences based on this disparity.

But I have heard from defense attorneys in the know that statements about existing crack sentencing provisions creating "significant injustice in our legal system" have seemingly not trickled down to federal prosecutors, who are still generally charging crack mandatory minimums and arguing for within-guideline crack sentences.  And I have be authorized to share this recent statement from the Federal Defenders to DOJ: "We were glad to see the Department’s recent support for legislation to end the crack-powder disparity but reports from the field indicate that line prosecutors continue to indict mandatory-minimum crack cases and seek guideline sentences that rely on the discredited ratio."

Talking the talk to Congress about reform is an important aspect of what the executive branch can do to improve our justice system. But the Justice Department can and should also be expected to walk the walk.  But so far, it seems, federal prosecutors are not really ready to give up the crack-powder disparity, even though DOJ asserts that "it is long past time" to do so. Sigh.

House Judiciary Committee votes 36 to 5 to advance the EQUAL Act to reduce federal crack sentences

At a time of problematic and often ugly partisanship inside the Beltway, I have continued to believe and hope that a number of federal sentencing reforms could and should still be able to secure significant bipartisan support.  This belief was reinforced yesterday when the House Judiciary Committee voted 36 to 5 to advance the Eliminating a Quantifiably Unjust Application of the Law (EQUAL) Act.  Excitingly, not only does this bill reduce crack statutory sentences to the level of powder cocaine offenses, it also provides for all previously convicted crack offenders to obtain a resentencing.  (Recall that neither the Fair Sentencing Act of 2010 nor the FIRST STEP Act of 2018 included full retroactivity for the sentencing reductions in those reform bills.)

I want to believe that the overwhelming vote in support of the EQUAL Act in the House Judiciary Committee means that a vote a passage by the full House will be coming soon.  I also want to believe that the bill, which also has bipartisan Senate support, could move efficiently through the upper chamber and become law this year.  But, because the politics and ways of Congress are always mysterious, I am not assuming passage is a sure thing and I have no idea what the timeline for the bill's potential progress will be going forward.  All I know is that it is now more than a quarter-century since the US Sentencing Commission first explained to Congress why a big crack/powder sentencing difference was unjustified and unjust, so the EQUAL Act cannot become law too soon and is way too late.  But better late than never, I still hope.

Notably, we are already approaching three years since passage of the FIRST STEP Act and there is yet to be a next step.  Though I would like to see many more statutory sentencing reform steps from Congress that go far beyond the EQUAL Act, I still think reforms can and should be happy right now with even baby steps in the right direction from a divided Congress.  And,  critically, the EQUAL Act would be a consequential baby step: USSC data indicate that more than 8000 people are in federal prison for crack offenses now and that more than 100 people are sentenced on crack offenses each month.  So literally thousands of people will be impacted if the EQUAL Act becomes law, and then, if/when this reform is finally achieved, we can work on correcting the next and the next and the next injustice baked into federal sentencing law and practice. 

A few prior related posts:

• An initial list of federal sentencing reforms to advance greater equity and justice for congressional consideration
• New efforts to fix the ugly old problem of sentencing disparity for federal crack and powder cocaine offenses 
• Small, and not quite steady, reform progress in a not quite new era for criminal justice reform 
• GOP Gov and former DEA chief calls for Congress to "finally and fully end the disparity between crack and cocaine offenses" 
• US Senate Judiciary Committee hearing set for "Examining Federal Sentencing for Crack and Powder Cocaine" 

Highlighting the drug war's continuing extraordinary toll on people of color

The AP has this lengthy new piece headlined "50-year war on drugs imprisoned millions of Black Americans."  I am a bit troubled by the use of the past tense in the headline because the casualties of the drug war continue to grow every minute of every day we rely on the criminal justice system to deal with drug issues. But, headline quibble aside, this extended AP piece is worth a full read, and here are excerpts:

Fifty years ago this summer, President Richard Nixon declared a war on drugs.  Today, with the U.S. mired in a deadly opioid epidemic that did not abate during the coronavirus pandemic’s worst days, it is questionable whether anyone won the war.

Yet the loser is clear: Black and Latino Americans, their families and their communities.  A key weapon was the imposition of mandatory minimums in prison sentencing.  Decades later those harsh federal and state penalties led to an increase in the prison industrial complex that saw millions of people, primarily of color, locked up and shut out of the American dream.

An Associated Press review of federal and state incarceration data shows that, between 1975 and 2019, the U.S. prison population jumped from 240,593 to 1.43 million Americans. Among them, about 1 in 5 people were incarcerated with a drug offense listed as their most serious crime.

The racial disparities reveal the war’s uneven toll. Following the passage of stiffer penalties for crack cocaine and other drugs, the Black incarceration rate in America exploded from about 600 per 100,000 people in 1970 to 1,808 in 2000.  In the same timespan, the rate for the Latino population grew from 208 per 100,000 people to 615, while the white incarceration rate grew from 103 per 100,000 people to 242....

Although Nixon declared the war on drugs on June 17, 1971, the U.S. already had lots of practice imposing drug prohibitions that had racially skewed impacts. The arrival of Chinese migrants in the 1800s saw the rise of criminalizing opium that migrants brought with them. Cannabis went from being called “reefer” to “marijuana,” as a way to associate the plant with Mexican migrants arriving in the U.S. in the 1930s.

By the time Nixon sought reelection amid the anti-Vietnam War and Black power movements, criminalizing heroin was a way to target activists and hippies. One of Nixon’s domestic policy aides, John Ehrlichman, admitted as much about the war on drugs in a 22-year-old interview published by Harper’s Magazine in 2016.

Experts say Nixon’s successors, Ronald Reagan, George H.W. Bush and Bill Clinton, leveraged drug war policies in the following decades to their own political advantage, cementing the drug war’s legacy. The explosion of the U.S. incarceration rate, the expansion of public and private prison systems and the militarization of local police forces are all outgrowths of the drug war.

Federal policies, such as mandatory minimum sentencing for drug offenses, were mirrored in state legislatures.  Lawmakers also adopted felony disenfranchisement, while also imposing employment and other social barriers for people caught in drug sweeps.

The domestic anti-drug policies were widely accepted, mostly because the use of illicit drugs, including crack cocaine in the late 1980s, was accompanied by an alarming spike in homicides and other violent crimes nationwide.  Those policies had the backing of Black clergy and the Congressional Black Caucus, the group of African-American lawmakers whose constituents demanded solutions and resources to stem the violent heroin and crack scourges.

“I think people often flatten this conversation,” said Kassandra Frederique, executive director of the Drug Policy Alliance, a New York-based nonprofit organization pushing decriminalization and safe drug use policies. “If you’re a Black leader 30 years ago, you’re grabbing for the first (solution) in front of you,” said Frederique, who is Black.  “A lot of folks in our community said, ‘OK, get these drug dealers out of our communities, get this crack out of our neighborhood. But also, give us treatment so we can help folks.’” The heavy hand of law enforcement came without addiction prevention resources, she said.

"Prosecutorial Roles in Reducing Racial Disparities in the Justice System"

The title of this post is the title of this interesting new R Street report authored by Nila Bala, Casey Witte and Lars Trautman.  Here is its executive summary:

The most pressing problems facing criminal justice policymakers and practitioners are racial disparities within the criminal justice system.  In many instances, the data on outcomes at each stage of the criminal justice process are stark, with Black individuals disproportionately bearing the brunt of system involvement and severe sentences.  While nearly every actor and policymaker associated with the criminal justice system can play a part in addressing this issue, prosecutors remain some of the most powerful.  With a hand in decisions ranging from charging to plea bargaining, the policies and practices of prosecutors inevitably influence the existence and extent of any racial disparities.  This paper examines the sources of racial disparities in the criminal justice system, the ways in which prosecutors may contribute to them and finally, actions that prosecutors can take to help reduce these disparities.  These recommendations include better understanding of disparities, decreasing reliance on cash bail and pretrial detention, prioritizing diversion programs and implementing algorithmic color-blind charging.

"Reducing Racial Inequalities in Criminal Justice: Data, Courts, and Systems of Supervision"

The title of this post is the title of this short report from the National Academies of Sciences, Engineering, and Medicine capturing the proceedings of a notable workshop. Here is how the report is described:

The Committee on Reducing Racial Inequalities in the Criminal Justice System of the National Academies of Sciences, Engineering, and Medicine convened a workshop in April 2021 as part of its exploration of ways to reduce racial inequalities in criminal justice outcomes in the United States.  This workshop, the third in a series of three, enabled the committee to gather information from a diverse set of stakeholders and experts to inform the consensus study process. Speakers at the workshop presented on deeply rooted inequalities within the criminal justice system, which exist not only in readily measured areas such as incarceration, but also in a much larger footprint that includes contact with police, monetary sanctions, and surveillance and supervision.  This publication highlights the presentations and discussion of the workshop.  

New fact sheets from Sentencing Project on disparities in youth incarceration

Via email this morning, I received details and links about notable new data assembled by The Sentencing Project. Here is the heart of the email:

Profound racial and ethnic disparities in youth incarceration define the American juvenile justice system. New publications released today by The Sentencing Project detail the scope of the problem and should raise alarms among policymakers and advocates committed to racial justice.

Our new fact sheets show state-by-state incarceration rates by race and ethnicity and highlight where the problem is getting worse and better. 

• Black Disparities in Youth Incarceration
  • Black youth are more than four times as likely as their white peers to be held in juvenile facilities, a modest improvement since 2015’s all-time high.
  • In New Jersey, Black youth are more than 17 times as likely to be incarcerated than their white peers. 
• Latinx Disparities in Youth Incarceration
  • Latinx youth are 28 percent more likely to be incarcerated than their white peers, a sharp improvement over the course of the decade.
  • In Massachusetts, Latinx youth are five times more likely to be incarcerated than their white peers.
• Tribal Disparities in Youth Incarceration
  • Tribal youth’s disparities have grown worse over the course of the decade, and they are now more than three times as likely to be incarcerated than their white peers.
  • In Minnesota, Tribal youth are 12 times more likely to be incarcerated than their white peers.

The Sentencing Project has long recommended the use of racial impact statements to divulge the source of disparities such as these. To overcome them, states and localities must invest heavily in community programs that address inequality at all stages of life, with particular focus on accommodating the needs of children of color.

Derek Chauvin gets 22.5 years for killing George Floyd

I am on the road, so will not have a chance to comment until probably tomorrow.  Readers should feel free to share their reactions and thoughts.

UPDATE:  Here are links to a few press pieces regarding the Chauvin sentencing:

From Law360, "Chauvin Sentenced To 22.5 Years In Prison For Floyd Murder"

From the Minneapolis Star Tribune, "Derek Chauvin's sentencing sparks relief but also resolve to keep fighting injustice"

From NBC News, "Chauvin sentence wasn't the max, but it provided some closure"

From NPR, "George Floyd's Family Says Chauvin's Sentencing Is One Step Closer To Healing"

ANOTHER UPDATE:  I just recently saw this reprinted version of the full sentencing order from Hennepin County District Judge Peter Cahill when he sentenced Derek Chauvin. Here is the short conclusion to the lengthy discussion:

Part of the mission of the Minneapolis Police Department is to give citizens “voice and respect.”  Here, Mr. Chauvin, rather than pursuing the MPD mission, treated Mr. Floyd without respect and denied him the dignity owed to all human beings and which he certainly would have extended to a friend or neighbor.  In the Court’s view, 270 months, which amounts to an additional ten years over the presumptive 150-month sentence, is the appropriate sentence.

Depressing (and abridged) FSR reminder of just how long we have known crack sentences are especially whack

While awaiting the start of this morning's US Senate Judiciary Committee hearing ,"Examining Federal Sentencing for Crack and Powder Cocaine," at which it seems there will be considerable advocacy for lowering crack cocaine sentences to finally be in parity with powder cocaine sentence (basics here), I thought to look through some of the archives of the Federal Sentencing Reporter to see how many articles have have had folks discussing (and often sharply criticizing) crack sentences. 

Because crack sentencing rules have been subject to so much justified criticism and seen modest reform in recent years, the number of FSR articles on this topic feels more than a bit overwhelming.  Here is an abridged list of articles that caught my eye to show the varied list of authors and laments through the years:

From 1990 by Deborah Young, "Rethinking the Commission's Drug Guidelines: Courier Cases Where Quantity Overstates Culpability" 

From 1992 by Catharine M. Goodwin, "Sentencing Narcotics Cases Where Drug Amount Is a Poor Indicator of Relative Culpability"

From 1992 by Robert S. Mueller, "Mandatory Minimum Sentencing"

From 1993 by Ronald F. Wright, "Drug Sentences as a Reform Priority"

From 1993 by Richard Berk, "Preliminary Data on Race and Crack Charging Practices in Los Angeles"

From 1994 by Marc Miller and Daniel J. Freed, "The Disproportionate Imprisonment of Low-Level Drug Offenders"

From 1995 by David Yellen, "Reforming Cocaine Sentencing: The New Commission Speaks"

From 1998 by Carol A. Bergman, "The Politics of Federal Sentencing on Cocaine"

From 1999 by Kyle O'Dowd, "The Need to Re-Assess Quantity-Based Drug Sentences"

From 2001 by Paula Kautt, "Differential Usage of Guideline Standards by Defendant Race and Gender in Federal Drug Sentences: Fact or Fiction?"

From 2003 by Alfred Blumstein, "The Notorious 100:1 Crack: Powder Disparity--The Data Tell Us that It Is Time to Restore the Balance"

From 2005 by Ryan S. King and Marc Mauer, "Sentencing with Discretion: Crack Cocaine Sentencing After Booker"

From 2007 by Steven L. Chanenson and Douglas A. Berman, "Federal Cocaine Sentencing in Transition"

From 2007 by Mark Osler, "More than Numbers: A Proposal For Rational Drug Sentences"

I will stop with these links to these 15 FSR articles because I am already overwhelmed and there were dozens more articles I could have highlighted just from the period before recentfederal  crack sentencing reforms. Notably, in 2007, the US Sentencing Commission finally did a first round of (modest) crack guideline reductions, then in 2010 we got the Fair Sentencing Act and it echoed through another round of guideline reductions.  And yet, as witnesses are noting in today's Senate hearing, we still have a disparate and unjustified disparity in our cocaine sentencing laws.  Moreover, as many of the articles above highlight, our enduring commitment to a quantity-based federal drug sentencing structure is a deep problem at the root of our so many of our federal sentencing woes.

US Senate Judiciary Committee hearing set for "Examining Federal Sentencing for Crack and Powder Cocaine"

On the morning of Tuesday, June 22, 2021, the US Senate Judiciary Committee has a hearing set for 10am titled "Examining Federal Sentencing for Crack and Powder Cocaine." The hearing should be available to watch at this link, where this list of witnesses are set out:

Ms. Regina LaBelle, Acting Director, Office of National Drug Control Policy

The Honorable Asa Hutchinson, Governor, State of Arkansas

Mr. Matthew Charles, Justice Reform Fellow, FAMM

The Honorable Russell Coleman, Member, Frost Brown Todd

Mr. Antonio Garcia, Executive Director, South Texas High Intensity Drug Trafficking Area

Mr. Steven Wasserman, Vice President for Policy, National Association of Assistant U.S. Attorneys

Notably, the Washington Post here reports on what Ms. Regina LaBelle will be saying in her testimony as well as some of the political context around this hearing.  Here is part of the story:

The Biden administration plans to endorse legislation that would end the disparity in sentences between crack and powder cocaine offenses that President Biden helped create decades ago, according to people with knowledge of the situation — a step that highlights how Biden’s attitudes on drug laws have shifted over his long tenure in elected office.

At a Senate Judiciary Committee hearing Tuesday, Regina LaBelle, the acting director of the White House Office of National Drug Control Policy, plans to express the administration's support for the Eliminating a Quantifiably Unjust Application of the Law Act, or Equal Act. The legislation, which sponsored by Senate Majority Whip Richard J. Durbin (D-Ill.) and Sens. Cory Booker (D-N.J.) and Rob Portman (R-Ohio), would eliminate the sentencing disparity and give people who were convicted or sentenced for a federal cocaine offense a resentencing.

“The current disparity is not based on evidence yet has caused significant harm for decades, particularly to individuals, families, and communities of color,” LaBelle says in prepared written testimony obtained by The Washington Post in advance of the hearing. “The continuation of this sentencing disparity is a significant injustice in our legal system, and it is past time for it to end. Therefore, the administration urges the swift passage of the ‘Eliminating a Quantifiably Unjust Application of the Law Act.’ ”...

Outside coalitions backing Durbin and Booker’s bill have focused particularly on shoring up conservative support as part of their larger criminal justice overhaul agenda. To that end, one of the witnesses testifying in favor of the bill Tuesday is Gov. Asa Hutchinson of Arkansas, a Republican who led the Drug Enforcement Administration under President George W. Bush.

“Although Congress has taken steps to reduce the disparity and provide some retroactive relief, any sentencing disparity between two substances that are chemically the same weakens the foundation of our system of justice,” Hutchinson says in his prepared remarks, also obtained by The Post.  “Congress now has the opportunity to build on the bipartisan successes of the Fair Sentencing Act and the First Step Act by eliminating the sentencing disparity between crack cocaine and powder cocaine once and for all.  The strength of our justice system is dependent on the perception of fundamental fairness.”

Russell Coleman, a former counsel to now-Senate Minority Leader Mitch McConnell (R-Ky.) and former U. S. attorney for the Western District of Kentucky, will also promote the legislation at the hearing Tuesday morning.

A few prior related posts:

• An initial list of federal sentencing reforms to advance greater equity and justice for congressional consideration
• New efforts to fix the ugly old problem of sentencing disparity for federal crack and powder cocaine offenses 
• Small, and not quite steady, reform progress in a not quite new era for criminal justice reform 
• GOP Gov and former DEA chief calls for Congress to "finally and fully end the disparity between crack and cocaine offenses" 

Juneteenth reflections on American justice systems

Befitting this forum, I thought to celebrate the first official federal holiday year for Juneteenth by rounding up some recent articles about the perspective it can provide on criminal justice issues in our nation. Here goes:

From the AP, "Lawmakers mark Juneteenth by reviving ‘abolition amendment’"

From the Brookings Institution, "To celebrate Juneteenth, elect officials focused on ending mass incarceration"

From PBS NewsHour, "Lawmakers call for an end to forced labor for felons to mark Juneteenth"

From Teen Vogue, "Juneeteenth Is a Celebration of Liberation, But Mass Incarceration Lives On"

From the Vera Institute of Justice, "The Chains of Slavery Still Exist in Mass Incarceration"

From the Wausau Pilot & Review, "Juneteenth: Freedom’s promise is still denied to thousands of blacks unable to make bail"

"The Mark of Policing: Race and Criminal Records"

The title of this post is the title of this recent piece authored by Eisha Jain published in the Stanford Law Review Online. Here is its abstract:

This Essay argues that racial reckoning in policing should include a racial reckoning in the use of criminal records.  Arrests alone — regardless of whether they result in convictions — create criminal records.  Yet because the literature on criminal records most often focuses on prisoner reentry and on the consequences of criminal conviction, it is easy to overlook the connections between policing decisions and collateral consequences.  This Essay employs the sociological framework of marking to show how criminal records entrench racial inequality stemming from policing.  The marking framework recognizes that the government creates a negative credential every time it creates a record of arrest as well as conviction.  Such records, in turn, trigger cascading consequences for employment, housing, immigration, and a host of other areas.  The credentialing process matters because it enables and conceals race-based discrimination, and because a focus on the formal sentence often renders this discrimination invisible.  This Essay considers how adopting a credentialing framework offers a way to surface, and ultimately to address, how race-based policing leaves lasting marks on over-policed communities.

SCOTUS rules in Terry that lowest-level crack offenders cannot secure resentencing based on FIRST STEP Act retroactivity of Fair Sentencing Act

Continuing to make quick work of its criminal docket, the Supreme Court's second criminal ruling today comes in Terry v. US, No. 20– 5904 (S. Ct. June 14, 2021) (available here), and it serves to limit the offenders who can secure resentencing based on crack penalties being lowered by the Fair Sentencing Act and then made retroactive by the FIRST STEP Act. Here is how Justice Thomas's opinion for the Court in Terry gets started:

In 1986, Congress established mandatory-minimum penalties for cocaine offenses.  If the quantity of cocaine involved in an offense exceeded a minimum threshold, then courts were required to impose a heightened sentence.  Congress set the quantity thresholds far lower for crack offenses than for powder offenses.  But it has since narrowed the gap by increasing the thresholds for crack offenses more than fivefold.  The First Step Act of 2018, Pub. L. 115–391, 132 Stat. 5194, makes those changes retroactive and gives certain crack offenders an opportunity to receive a reduced sentence.  The question here is whether crack offenders who did not trigger a mandatory minimum qualify.  They do not.

Justice Sotomayor has an extended concurring opinion in Terry (it is a bit longer than the majority opinion).  She explains at the start of this opinion that she writes separately "to clarify the consequences of today’s decision.  While the Fair Sentencing Act of 2010 and First Step Act of 2018 brought us a long way toward eradicating the vestiges of the 100-to-1 crack-to-powder disparity, some people have been left behind."

I will likely have a lot more to say about this Terry ruling and its potential echoes once I get a chance to read it more closely.

Youth, gender, mental illness, abuse, co-defendant disparity all part of Tennessee capital case perhaps nearing an execution date

This new lengthy article in the Knoxville News Sentinel, headlined "How young is too young for a death sentence? Christa Pike fights move to set execution date," discusses a remarkable case from the Volunteer State. I could imagine spending an entire semester discussing this case with students because it engages so many sentencing issues, and here are just some of the particulars:

What's the difference between being 17 years old and being 18? In Christa Gail Pike's case, her lawyers say, the difference is a death sentence.

The state wants to set an execution date for Pike, now 45 and the only woman on Tennessee's death row.  She was 18 years old when she and two other participants in a Knoxville job program for troubled teens killed Colleen Slemmer in a remote spot on the University of Tennessee's agriculture campus.

Pike, her boyfriend Tadaryl Shipp and fellow Job Corps student Shadolla Peterson lured Slemmer, 19, to campus the night of Jan. 12, 1995.  Once there, Slemmer was beaten, cut and bludgeoned to death with a rock.  Pike kept a piece of her skull as a souvenir. Investigators identified a love triangle between Pike, Shipp and Slemmer as the motive for the crime.

Only Pike received a death sentence for her role in the killing.  Peterson cooperated with investigators and walked away with probation.  Shipp was 17 — too young to be put to death.  He's serving a life sentence and will be eligible for parole in 2028.

Pike's legal team cites that difference in a new court filing asking the Tennessee Supreme Court to delay her execution — or recommend it be stopped altogether.  "Mr. Shipp was 17 years old at the time of Ms. Slemmer’s death. Christa Pike was 18.  That is the difference between a death sentence and parole eligibility in 2028," reads the filing signed by defense attorneys Stephen Ferrell and Kelly Gleason.  "That difference cannot be equated with increased maturity or brain development. Christa was not more mature or more responsible than Mr. Shipp."

The Tennessee Attorney General's Office is asking the high court to set an execution date for Pike, contending she has exhausted her appeals. But Pike's defense team says it's still too soon.  They've lodged several arguments, including one centered on her mental illness and youth at the time of the crime.

A jury condemned Pike in March 1996.  Nine years later, the U.S. Supreme Court abolished the juvenile death penalty in the landmark case Roper v. Simmons....  The court drew the line at 18, but Pike's attorneys argue its logic should extend beyond that. They point to scientific research that the brain isn't fully developed until after age 20 and that there's no way to differentiate between the brains of young people.

"There is thus no justification for a drastic differentiation in punishment between a 17-year-old offender and an 18-year-old offender," the filing reads. "And the question is an important one, for Christa Pike was eligible for the death penalty in this case and her co-defendant, Tadaryl Shipp, was not."

The lawyers paint Shipp — not Pike — as the ringleader of the group. Shipp was violent and controlling, they write, while Pike was suffering from undiagnosed bipolar disorder and brain damage after a childhood filled with sexual and physical abuse. Her mother drank while she was in the womb, and she was twice raped as a child.

"It is also significant that, in addition to her youth, Christa Pike was also brain damaged and severely mentally ill at the time of her offense," the filing reads.  "Thus, practical effects of the immaturity that would be inherent in the brain of any eighteen-year-old were magnified by other problems that adversely affected Christa’s developing brain."

Courts have shot down similar arguments in Pike's case before....  The U.S. Supreme Court declined to take up the case last year.  Pike's attorneys now are asking the Tennessee Supreme Court to recommend that Gov. Bill Lee commute Pike's sentence to life with or without the possibility of parole.  At the very least, they're asking for more time so a psychologist can examine Pike in prison and so the Inter-American Commission on Human Rights can finish investigating whether Pike's human rights have been violated.

Lee could grant Pike clemency but has not done so for any other death-row inmate since he was inaugurated in January 2019.  The state has executed four men since then, including Nicholas Sutton, a Morristown man who killed four people and turned his life around on death row.

Pike has had additional legal troubles while in prison.  In 2004, she was convicted of attempted murder for nearly strangling a fellow inmate with a shoestring.

Pike would be the first woman Tennessee has executed in over 200 years, her attorneys say, and the first person it's put to death "in the modern era" who was a teenager at the time of the crime.

GOP Gov and former DEA chief calls for Congress to "finally and fully end the disparity between crack and cocaine offenses"

In this new Fox News commentary, Arkansas Gov Asa Hutchinson makes a notable pitch for the EQUAL Act (discussed here).  The piece is headlined "It's time to fix an old wrong and end the disparity between crack and cocaine offenses," and I recommend it in full.  Here are excerpts:

In America, the principles of fairness and equal treatment are fundamental to the rule of law.  When we fall short of these principles, we lose confidence in our justice system and weaken the foundation of our country.  Since 1986, there has been a substantial difference in prison sentences for crack and powdered cocaine offenses, a disparity that has not only encouraged a misapplication of limited law enforcement resources, but has also been the source of unequal punishment for basically identical crimes....

During my time in Congress in the 1990s, and as the head of the Drug Enforcement Administration (DEA) from 2001-2003, I saw first-hand the impact of this disparity, and found it was failing on three fronts.  First, it rarely led to the prosecution of major drug traffickers and sellers.  Instead, it led to increased prosecutions of small-time dealers and peripheral supporters, almost all of whom were replaced immediately.

Second, it became clear that the disparity was built on a misunderstanding of crack cocaine’s chemical properties and effects of the body.  Crack and powdered cocaine were chemically the same, and the violence that was linked to crack cocaine was not related to the properties of the drug.  Instead, it was the general product of the drug trade and the historically violent trends in areas where crack is predominantly used and sold.

Third, it undermined community confidence in the fairness of the criminal justice system. I talked with drug task force officers and front-line agents at the DEA who said this sense of injustice had a real impact in the fight against illegal drugs; it made it more difficult for agents to build trust and work with informants in the areas most impacted by the crack epidemic.  The disparity in sentencing led to more harm than help in our federal anti-crime efforts.

The bipartisan Fair Sentencing Act, sponsored by Sens. Dick Durbin, D-Ill., and Jeff Sessions, R-Ala., dramatically reduced the disparity, from 100:1 to 18:1.  In 2018, the First Step Act, signed into law by President Donald Trump, made that reduced disparity retroactive.

Those were important steps, but the new sentencing laws continue to cause disproportionate harm and decreased trust in communities of color.  For example, in 2019, Black people accounted for 81% of all federal crack cocaine convictions. Those convictions led to prison terms 18 times longer than they would have been for equivalent amounts of chemically identical powdered cocaine.

It is time for Congress to finish what it started, and finally and fully end the disparity between crack and cocaine offenses.  The bipartisan Equal Act would bring federal sentencing law in line with most states that have eliminated, reduced or never instituted, these unjust disparities. That includes my home state of Arkansas, where possession of crack and powdered cocaine are treated the same under state law....

The strength of our justice system is totally dependent on the perception of fairness and the concept that punishments should fit the crimes.  The clear and pernicious injustice of crack and powdered cocaine sentencing disparities harms our communities, limits law enforcement in their fight against illegal drugs, and weakens the foundation of our entire system of justice.

Congress has the opportunity to fully and finally eliminate this injustice by passing the Equal Act.  To get it done, lawmakers of all different backgrounds will need to put partisanship aside and work in the best interests of the American people.  I can’t think of a worthier cause than preserving our founding principle — that all Americans are treated equally under the law.

I am fully supportive of efforts to equalize federal crack and powder sentencing rules which are now based largely around the quantity of drugs involved in the offense.  But, for truly effective reform, I believe we need to not only move entirely away from any quantity-based approaches to drug offense sentencing, but also start moving away from punitive criminal justice responses to drug activities.

A few prior related posts:

• New efforts to fix the ugly old problem of sentencing disparity for federal crack and powder cocaine offenses 
• Small, and not quite steady, reform progress in a not quite new era for criminal justice reform 

"Exploring Alternative Approaches to Hate Crimes"

The title of this post is the title of this notable new lengthy report published today by the Brennan Center for Justice at NYU Law and Stanford Law School.  I received an email about the publication, which provided this overview:

“Exploring Alternative Approaches to Hate Crimes” [is] a comprehensive report that assesses critiques of hate crime laws from communities of color and other targeted communities, and evaluates potential alternative approaches to respond to hate crimes more effectively.  The report addresses the harm hate crimes inflict and the limitations in keeping track of such crimes.  It finds that the current approach to hate crimes relies on increased law enforcement and imprisonment and that alternative responses centered on restorative justice and social services “may offer a way to identify and mend the unique individual and community harms caused by hate crimes, while demanding meaningful accountability for those who cause harm.”

“Our current hate crimes laws aim to recognize the profound harm to victims and their communities from crimes motivated by bias, but, as our report finds, they fall short in many ways,” said Stanford Law professor Shirin Sinnar, who along with Brennan Center Fellow Michael German, guided the policy practicum, Assessing Alternative Approaches to Hate Crimes, that compiled the report.  “Our goal with this report was to evaluate the traditional hate crime legal model, which focuses on increasing imprisonment for crimes with a proven bias motive, and explore the different approaches that local communities are now trying to counteract the injuries hate crimes inflict.”

“Hate crimes clearly remain a serious problem affecting uncounted individuals and communities across the U.S., and the law enforcement-centric approach we've employed over the last several decades has not provided satisfactory outcomes, or properly accounted for the harms,” said German.

New York City, Oakland, Calif., and other communities across the country have been trying some of the alternatives covered in Exploring Alternative Approaches to Hate Crimes. The report calls for greater investments in such programs to allow communities to experiment with methodologies that might more effectively mitigate the harms from hate crimes.

The report, put together by Stanford Law School students enrolled in the policy practicum, drew on findings from a March 2020 convening at Stanford Law School of experts in the fields of criminal law, civil rights, community advocacy and restorative justice. It also includes research from law, criminology, and other fields.  For the report, the Stanford Law School policy lab defined a “hate crime” as a criminal offense motivated by hostility against certain actual or perceived characteristics of a victim’s identity, including race or ethnicity, religion, gender, national origin, and sexual orientation, among others.

Most states and the federal government have enacted laws that create “stand-alone” offenses or impose sentence enhancements for crimes with a bias motive.  But in recent years, some community groups and racial justice advocates have questioned whether this approach relies too heavily on carceral solutions, especially through sentence enhancements, and whether current solutions sufficiently respond to the unique individual and community harms of hate crimes....

The report assessed restorative justice programs for hate crimes and social services programs for individuals and communities that are increasingly piloted across the country, both as substitutes for, or to exist alongside, the traditional legal approach.  The report found that, while challenging questions remain as to program design, restorative justice programs may offer a promising alternative to the traditional law enforcement approach to hate crimes.  It notes that “these programs should be subjected to rigorous study, to ensure they are implemented with the necessary attention to the constitutional rights of accused parties and the safety and well-being of impacted individuals and communities.

The report also found that support for social services and grant programs can be established, retooled, and better staffed and funded to ensure that individuals and communities affected by hate crimes receive adequate, culturally competent resources.  “Our work details alternative approaches that impacted communities are beginning to explore, which are designed to repair more directly the harms bias-motivated crimes inflict,” said German.  “We hope this report becomes a resource for communities looking for more effective methods of responding to hate crimes."

"The Persistence of Penal Disenfranchisement: Suppressing Votes the Old Fashioned Way"

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

This article discusses penal disenfranchisement, the practice of prohibiting millions of American citizens who have been convicted of crimes from voting.  Most states have laws providing for penal disenfranchisement.  The article argues that barring individuals from voting by reason of a prior criminal conviction is both unjustified and counterproductive. The public interest is best served by integrating individuals who have offended into society, and this interest is not served by denying such individuals the right to vote.

The article explores the history of penal disenfranchisement and the various reasons that have been offered over the years in support of it, both non-punitive and punitive, and explains why none are persuasive.  Further, the piece argues that the practice of penal disenfranchisement is particularly harmful to the interests of the African-American community.  Finally, the article discusses whether there are any possible means of relief for people disenfranchised because of a prior conviction.  With respect to legal remedies, the article concludes that Supreme Court precedent regarding the issue unfortunately is unhelpful.  The article also finds that at the present time, it is unlikely that a great deal of progress is likely to be made through legislation.

"The Feminist Script for Punishment"

The title of this post is the title of this new article/book review by I. India Thusi now available via SSRN.  Here is its abstract:

In her new book, The Feminist War on Crime, Professor Aya Gruber provides a critique of feminists, who have sought political vindication through a governance of punishment. Professor Elizabeth Bernstein coined the term “carceral feminism” to describe the feminist commitment to “a law and order agenda and . . . a drift from the welfare state to the carceral state as the enforcement apparatus for feminist goals.”  While feminist movements have expanded the opportunities available to women and girls, too often their means for achieving these accomplishments have been paved on a path of the privileges of feminist elites.  These privileges are immune from the pressures of multiple forms of subordination that form the interstitial web of inequality that many other women encounter.  These other women are also Other women, in that they are often outsiders in American society, not just because they are women, but also because they are women of color, poor, immigrant, less educated, disabled, and/or queer.  The positionality of these Other women is important because they often have personal experiences that make engagement with the state apparatus for punishment undesirable.  Black feminists advanced the concerns of the Other women through their activism for state responses that address the systemic, material conditions that make women vulnerable to violence, rather than through engagement with the technologies of punishment.  Other women have experienced state violence, either through the inherited trauma that runs in their blood from the violence against their ancestors, or through their daily experiences of everyday subordination within their communities. White, elite feminists have often missed their perspectives.  Or, at times, they have outright demeaned their perspectives. Either way, the path to gender equality has had an unsettling entanglement with carcerality. And the logics of punishment and imprisonment have informed feminist demands for reforms. This feminist fascination with the carceral is the subject of Gruber’s book.

Gruber’s historical analysis of the entanglement between feminism and incarceration illustrates that the feminist rage against the patriarchy has at times transformed into retributivist impulses to punish, which contradict feminist values and exacerbate social injustice. Gruber recounts several examples of feminist campaigns that advanced a feminist script for punishment.  Many of these campaigns were motivated by the laudable aim of eradicating violence against women and improving women’s ability to lead safe and healthy lives.  The various feminist campaigns for more punishment occurred in different decades and had various leaders. But they all share a common script about punishment.  They developed similar story lines about women.  They painted victims and villains that look remarkably similar through the decades.  They subscribe to the same dominant story about the role of the criminal law as a sword against perpetrators.  While the individual characters in the script vary and are not always identical, many of the elements that advance their pleas for additional punishment are remarkably similar.  These stories follow the same script: a feminist script for punishment.

"That is Enough Punishment: Situating Defunding the Police within Antiracist Sentencing Reform"

The title of this post is the title of this new paper available via SSRN authored by Jalila Jefferson-Bullock and Jelani Jefferson Exum. Here is its abstract:

During the summer of 2020, the police killings of George Floyd, Breonna Taylor, and others created a movement that unearthed a reality that Black people in the United States have always been aware of: systemic racism, in the form of police brutality, is alive and well. While the blatant brutality of George Floyd’s murder at the hands of police is the flame, the spark was ignited long ago.  One need only review the record of recent years — the killings of Eric Garner, Michael Brown, Tamir Rice, Antwon Rose, Alton Sterling, Philando Castile, Breonna Taylor, and countless other souls have led to this particular season of widespread protests and organized demands for change.  As the focus turns from necessary protest to tangible progress, what remains unanswered is how best to proceed.  Professor Ibram X. Kendi described antiracism as “a radical choice in the face of this history, requiring a radical reorientation of our consciousness.”  One such “radical choice” is defunding the police.

Although the long-held belief in police “super powers” is crumbling, the majority of Americans do not support wholesale defunding and instead advocate for specific reforms; 35% of participants in a 2020 Pew study recorded that the police use the correct amount of force in every situation, compared to 45% in 2016.  Likewise, the share of people who believe police treat racial and ethnic groups equally dropped from 47% in 2016 to 34% in 2020, and the share of those who thought the justice system should hold officers accountable when misconduct occurs rose to 44% in 2020, compared to 31% in 2016. A 2018 poll found that two-thirds of people in the United States support banning chokeholds.  Most Americans do support disciplining police misconduct and lessening protections against legal action.  Seventy-four percent of Americans believe that police violence against the public is a problem, and 42% believe it is a major problem. Nevertheless, only 25% of Americans endorse decreased spending on police forces. In many ways, polling reveals a public misunderstanding of what defunding the police actually means.  Polls indicate that people balk at the term “defund the police” but appear more open if directly asked if they support shifting money allocated to police toward specific social services.  This Article argues that discomfort with defunding the police is misplaced.

Understanding policing as a form of punishment clarifies how reforming policing — including defunding the police — fits within the broader, more widely accepted sentencing reforms that have taken place in recent years.  The Supreme Court has refused to recognize policing as punishment, and several scholars have commented on the Court’s failure to do so. Adding to this conversation, this Article asserts that policing is punishment and demonstrates that policing reform is rightly situated within discussions of overall sentencing reform.  Sentencing reform supported on both sides of the political aisle recognizes that jurisdictions have spent money on incarceration but have not actually accomplished punishment goals.  When resources are re-directed to support legitimate punitive goals better, then not only are resources saved but also systemic racism can be addressed.  As it stands, purposeless punishment only serves to support institutional bias.  The same is true for retaining the current system of policing.  Once one understands that the current policing model in the United States facilitates purposeless punishment, its only remaining plausible objective is to sustain a system of racial oppression.  To truly begin eradicating racism in policing, it is imperative to place policing reform in the broader context of sentencing reform and begin approaching all forms of punishment with an antiracist lens.

"Mass Incarceration Retards Racial Integration"

The title of this post is the title of this recent working paper authored by Peter Temin for the Institute for New Economic
Thinking.  Here is its abstract:

President Nixon replaced President Johnson’s War on Poverty with his War on Drugs in 1971.  This new drug war was expanded by President Reagan and others to create mass incarceration.  The United States currently has a higher percentage of its citizens incarcerated than any other industrial country.  Although Blacks are only 13 percent of the population, they are 40 percent of the incarcerated.  The literatures on the causes and effects of mass incarceration are largely distinct, and I combine them to show the effects of mass incarceration on racial integration.  Racial prejudice produced mass incarceration, and mass incarceration now retards racial integration.

Two sharp discussions of the inefficacy and inequities of the war on drugs

Today I saw two different types of commentary coming from two different authors saying in different ways the same fundamental resolute point: the war on drugs has been a failure full of injustices and we must dramatically change course.  Both pieces should be read in full, and I hope these snippets prompt clicks through:

First, be sure to check out Nora Volkow, director of the National Institute on Drug Abuse (NIDA), Health Affairs blog entry titled "Addiction Should Be Treated, Not Penalized." (Hat tip: Marijuana Moment).  Here are excerpts (links from original):

[Health] disparities are particularly stark in the field of substance use and substance use disorders, where entrenched punitive approaches have exacerbated stigma and made it hard to implement appropriate medical care. Abundant data show that Black people and other communities of color have been disproportionately harmed by decades of addressing drug use as a crime rather than as a matter of public health....

Although statistics vary by drug type, overall, White and Black people do not significantly differ in their use of drugs, yet the legal consequences they face are often very different. Even though they use cannabis at similar rates, for instance, Black people were nearly four times more likely to be arrested for cannabis possession than White people in 2018.  Of the 277,000 people imprisoned nationwide for a drug offense in 2013, more than half (56 percent) were African American or Latino even though together those groups accounted for about a quarter of the US population.

During the early years of the opioid crisis in this century, arrests for heroin greatly exceeded those for diverted prescription opioids, even though the latter — which were predominantly used by White people — were more widely misused.  It is well known that during the crack cocaine epidemic in the 1980s, much harsher penalties were imposed for crack (or freebase) cocaine, which had high rates of use in urban communities of color, than for powder cocaine, even though they are two forms of the same drug.  These are just a few examples of the kinds of racial discrimination that have long been associated with drug laws and their policing....

Drug use continues to be penalized, despite the fact that punishment does not ameliorate substance use disorders or related problems.  One analysis by the Pew Charitable Trusts found no statistically significant relationship between state drug imprisonment rates and three indicators of state drug problems: self-reported drug use, drug overdose deaths, and drug arrests.  

Imprisonment, whether for drug or other offenses, actually leads to much higher risk of drug overdose upon release. More than half of people in prison have an untreated substance use disorder, and illicit drug and medication use typically greatly increases following a period of imprisonment. 

Second, be sure to also read Nkechi Taifa, convener of the Justice Roundtable, commenting at the Brennan Center under the title "Race, Mass Incarceration, and the Disastrous War on Drugs."  Here is how the (relatively more optimistic) piece concludes (again links in original):

Fortunately, the tough-on-crime chorus that arose from the War on Drugs is disappearing and a new narrative is developing.  I sensed the beginning of this with the 2008 Second Chance Reentry bill and 2010 Fair Sentencing Act, which reduced the disparity between crack and powder cocaine.  I smiled when the 2012 Supreme Court ruling in Miller v. Alabama came out, which held that mandatory life sentences without parole for children violated the Eighth Amendment's prohibition against cruel and unusual punishment.  In 2013, I was delighted when Attorney General Eric Holder announced his Smart on Crime policies, focusing federal prosecutions on large-scale drug traffickers rather than bit players.  The following year, I applauded President Obama’s executive clemency initiative to provide relief for many people serving inordinately lengthy mandatory-minimum sentences.  Despite its failure to become law, I celebrated the Sentencing Reform and Corrections Act of 2015, a carefully negotiated bipartisan bill passed out of the Senate Judiciary Committee in 2015; a few years later some of its provisions were incorporated as part of the 2018 First Step Act.  All of these reforms would have been unthinkable when I first embarked on criminal legal system reform.

But all of this is not enough.  We have experienced nearly five decades of destructive mass incarceration.  There must be an end to the racist policies and severe sentences the War on Drugs brought us.  We must not be content with piecemeal reform and baby-step progress.

Indeed, rather than steps, it is time for leaps and bounds.  End all mandatory minimum sentences and invest in a health-centered approach to substance use disorders.  Demand a second-look process with the presumption of release for those serving life-without-parole drug sentences.  Make sentences retroactive where laws have changed.  Support categorical clemencies to rectify past injustices.

It is time for bold action.  We must not be satisfied with the norm, but work toward institutionalizing the demand for a standard of decency that values transformative change.

Noting how carceral craziness and foolhardy finality fixations result in cases like Tarahrick Terry's

As highlighted in this post following this past week's SCOTUS oral argument, the questions from the Justices strongly suggest that the Supreme Court will soon rule that Tarahrick Terry is not entitled to seek a resentencing under the FIRST STEP Act provision making the Fair Sentencing Act retroactive.  Over at SCOTUSblog, Ekow Yankah has this effective review of the Terry argument which spotlights a portion I found especially notable toward the end:

One dissonant note came late in the morning, when Justice Brett Kavanaugh embarked on an extended exchange with Mortara.  Rather than a sharp set of questions, Kavanaugh ruminated on, among other things, the history that led to the sentencing regime Congress sought to fix.  He recalled the 1986 death of college-basketball star Len Bias from a cocaine overdose that shocked the nation and brought cocaine use squarely into the spotlight.  Recalling that Bias was only a year older than him and that he looked up to him, Kavanaugh (himself an avid basketball player and coach) mused that Bias’ death had motivated congressional action to impose harsher penalties on cocaine use, noting only casually that Bias died after using powdered cocaine.  It was, to this observer, a cringe-worthy moment of naivete; to draw a clear path from the traumatizing death of Bias to harsher punishment of crack cocaine is to ignore a sea of racial politics.  Len Bias’s death did not lead Congress to hammer down on Wall Street bankers doing coke.

Yankaw is right to spotlight generally how ugly racial realities were largely ignored throughout the Terry argument.  But even more "cringe-worthy" has been the way Congress, the US Sentencing Commission, the Department of Justice and the courts have created and sustained crazy carceral approaches to drug offenses for many decades even as the illogic, inefficacy and injustice of lengthy federal prison sentences in response to drug issues have been so plainly evident.  Apologies for a bit of a rant, but what follows is actually a reserved accounting of what strikes me a stunningly ugly (and still continuing) example of systemic injustice. 

For starters, what basis did Congress have back in 1986 to think that harsh mandatory minimum prison sentences for any drugs (let alone for crack) would be a sound and sensible way to respond to either the overdose death of a basketball superstar or societal concerns about a new drug problem?  The history of alcohol Prohibition certainly is not a rousing tale of the efficacy of criminal justice responses to substance use, and racial disparities in other drug panics have marked US policies and practices for eons.  Moreover, not long before in 1970, as noted in this article, Congress repealed most drug mandatories with then-Texas Rep. GHW Bush saying doing so would result in "better justice and more appropriate sentences."  

Critically, the carceral craziness of the Anti-Drug Abuse Act of 1986 goes even further than Congress deciding to re-embrace federal mandatory minimum provision for drug offenses.  Congress in 1986 had the even crazier idea to tether its harsh prison mandatory minimums to precise drug quantities rather than to offense role or violent acts or any other sounder sentencing factors.  And Congress further decided that just five grams of crack cocaine — the weight of a single nickel — would be enough to trigger five mandatory years in federal prison (while a full pound of the same stuff in powder form would not).       

As I highlighted in this recent post, in 1991 the US Sentencing Commission wrote a lengthy report to Congress detailing how misguided and racially disparate all mandatory minimum provisions were in operation; in 1995, the USSC wrote another report documenting the extreme racial disparities resulting from the 100-1 crack/powder ratio.  I had the honor in 1995 to still be clerking for Second Circuit Judge Guido Calabresi who wrote at that time in United States v. Then, 56 F.3d 464 (2d Cir. 1995), that, if Congress failed to respond to the USSC's expert analysis, "equal protection challenges based on claims of discriminatory purpose might well lie" or the USSC's reports "might nonetheless serve to support a claim of irrationality." Id. at 468 (Calabresi, J., concurring).

Aggravatingly, Congress did not do anything to address the 100-1 ratio for 15 more years until the Fair Sentencing Act of 2010, during which time tens of thousands of disproportionately black persons received disproportionately severe statutory and guideline sentences for crack offenses.  Critically, the USSC, the DOJ, and the courts ought also be faulted for carceral craziness in this period: the USSC refused for over a decade to even try to change the crack guidelines while awaiting congressional action, the DOJ (under both Prez Clinton and Prez Bush) was generally opposition to any major sentencing reforms, and courts consistently rejected any and all challenges to this racially disparate and irrational sentencing structure. 

Interestingly, the Booker case merits mention in this history not because it happened to be a crack case, but because some federal judges started using their new post-Booker discretion to do better in crack cases and the USSC advanced some modest (but still meaningful) crack guideline amendments as a result.  But, tellingly, DOJ still largely opposed district judges going below the crack guidelines after Booker (which required SCOTUS to issue the important Kimbrough decision), and many district judges still readily and regularly sentenced within the severe 100-1 crack guidelines even after Booker and Kimbrough made clear that they had broad authority to effectuate the USSC's expert analysis that the crack guidelines produced racial disparities and generally recommended prison terms that were much "greater than necessary." 

Of course, in August 2010, we finally get the Fair Sentencing Act from Congress.  Notably, the FSA did not unwind the key carceral craziness of tethering harsh mandatory prison minimums to precise drug quantities, nor did it provide for treating crack and powder offenses similarly.  Rather the FSA simply says it now takes 28 grams grams of crack — the weight of five quarters — to trigger five mandatory years in federal prison (though a full pound of the same stuff in powder form sill will not).  The US Sentencing Commission amends the crack guidelines downward accordingly as instructed by the FSA, and thankfully the federal sentencing world gets just a little bit less carceral crazy going forward for some crack cases. 

But even as the carceral craziness recedes a bit after the FSA of 2010, foolhardy finality fixations kick into high gear.  Notably, as noted in this post, international human rights law generally provides that, when legislators pass a new law to lighten sentences, offenders have a right to benefit from it retroactively.  But the Obama Justice Department argues in 2010 that federal law required that even crack defendants who had not yet been sentencing when the FSA was enacted still had to be subject to the 100-1 ratio for pre-FSA conduct even through everyone agreed that pre-FSA sentences for crack were unfair, excessive, ineffectual and produced extreme racial disparities.  The Supreme Court in the 2012 Dorsey case — by only a 5-4 margin — decides sentencing courts did not have to keep applying a misguided and suspect sentencing scheme in these pipeline cases.  But all the while the USSC, the DOJ and the courts all readily accept that nobody should get any retroactive benefit from the FSA statutory change simply because Congress did not say expressly that it wanted people still in prison still enduring the 100-1 ratio's carceral knee on their necks to have a chance to argue they should get to sooner breathe the air outside prison walls.           

Critically, as just suggested, retroactivity of lower crack sentences (or any other sentencing changes) in the federal system has never been automatic.  Persons in prison, even if permitted under applicable laws to get to court for resentencing, generally have to prove to a judge that public safety concerns and other equities weigh in favor of a lower sentence.  That is, for Tarahrick Terry and so many others, they are not actually arguing for resentencing, they are arguing that they should just have a chance to argue for discretionary resentencing.  In a law review article some years ago, "Re-Balancing Fitness, Fairness, and Finality for Sentences," I contend it ought to be a lot easier for a defendant to get access to court seeking resentencing because "the conceptual, policy, and practical reasons [that may justify] limiting review and reconsideration of final convictions are not nearly as compelling when only sentences are at issue."  I find it so frustrating discretionary resentencing for crack offenders remains so contested even when each and every federal policy-maker in the three branches of the federal government — Congress, the Prez and his Justice Department, and the US Sentencing Commission — have all expressly and formally declared that all 100-1 ratio pre-FSA crack prison sentences were unfair, excessive, ineffectual and produced extreme racial disparities.

Of course, Congress voted almost unanimously for the FIRST STEP Act, which is a huge bill designed to help reduce a lot of federal sentences and which included a provision making the Fair Sentencing Act retroactive.  But, given the SCOTUS argument in Terry, it appears that because Congress did not use just the precise kind of magic words in that statutory provision, the lowest level of all crack offenders are to be categorically excluded from securing even a chance to argue for resentencing.  Sigh.  Injustice must sometimes be one of those turtles going all the way down as carceral craziness and foolhardy finality fixations persist circa 2021.  There are some heartening indications that we all know we can and should be doing a lot better in federal sentencing and elsewhere, but Terry is perhaps a useful reminder that the myriad sentencing and racial injustices of the past are never dead, and they are not even past.

Prior recent related posts on Terry:

• Federal defendant in Terry with many notable friends urging broad application of crack retroactivity provision of FIRST STEP Act
• Acting SG tells SCOTUS that new administration now supports broad application of crack retroactivity provision of FIRST STEP Act in Terry
• Terry v. US, the final SCOTUS argument of Term, provides yet another reminder of the persistent trauma and drama created by the 100-1 crack ratio
• SCOTUS argument in Terry suggests low-level crack defendant unlikely to secure resentencing based on FSA retroactivity 

"Prisons and jails will separate millions of mothers from their children in 2021"

The title of this post is the title of this notable, timely new briefing from the Prison Policy Initiative authored by Wanda Bertram and Wendy Sawyer.  Here is how it gets started (with links in original): 

This Mother’s Day — as the COVID-19 pandemic continues to put people behind bars at serious risk — nearly 150,000 incarcerated mothers will spend the day apart from their children.  Over half (58%) of all women in U.S. prisons are mothers, as are 80% of women in jails, including many who are incarcerated awaiting trial simply because they can’t afford bail.

Most of these women are incarcerated for non-violent offenses.  Most are also the primary caretakers of their children, meaning that punishing them with incarceration tears their children away from a vital source of support.  And these numbers don’t cover the many women who will become mothers while locked up this year: An estimated 58,000 people every year are pregnant when they enter local jails or prisons.

Terry v. US, the final SCOTUS argument of Term, provides yet another reminder of the persistent trauma and drama created by the 100-1 crack ratio

It was 35 years ago, amid intense media coverage of a "crack epidemic" and the overdose death of basketball star Len Bias, when Congress passed the Anti-Drug Abuse Act of 1986 with the 100-to-1 powder/crack cocaine quantity ratio defining severe mandatory minimum sentencing terms.  As the US Sentencing Commission explained in this 1995 report, Congress "dispensed with much of the typical deliberative legislative process, including committee hearings," when enacting this law, and "the abbreviated, somewhat murky legislative history simply does not provide a single, consistently cited rationale for the crack-powder cocaine penalty structure."  Though the 100-to-1 ratio lacked any sound rationale in 1986, thousands of disproportionately black persons started receiving disproportionately severe statutory and guideline sentences for crack offenses in the years that followed.

Not long thereafter, in 1991 the US Sentencing Commission detailed to Congress that "lack of uniform application [of mandatory minimums] creates unwarranted disparity in sentencing" and that data showed "differential application on the basis of race."  Giving particular attention to cocaine sentencing, in 1995 the US Sentencing Commission explained to Congress that there was considerable racial disparity resulting from the 100-1 quantity ratio and that sound research and public policy might "support somewhat higher penalties for crack versus powder cocaine, but a 100-to-1 quantity ratio cannot be recommended."  In other words, three decades ago, an expert agency told Congress that mandatory minimums were generally bad policy and created racial injustice; over a quarter century ago, that agency also told Congress that crack minimums were especially bad policy and created extreme racial injustice.

In a sound and just sentencing universe, these reports and recommendations would have prompted immediate action.  But it took Congress another full 15 years to even partially address these matters.  After tens of thousands of persons were sentenced under the 100-to-1 ratio, Congress finally in 2010 passed the Fair Sentencing Act to increase the amount of crack need to trigger extreme mandatory minimum sentences.  The FSA did not do away with any mandatory minimums, and it still provided for much smaller quantities of crack to trigger sentences as severe as larger quantities of powder, but it still bent the arc of the federal sentencing universe a bit more toward justice.  However, it did so only prospectively as Congress did not provide for retroactive application of its slightly more just crack sentencing rules in the FSA.

Eight years later, Congress finally made the Fair Sentencing Act's reforms of crack sentences retroactive through the FIRST STEP Act. But, of course, no part of this story lacks for drama and racialized trauma, as the reach of retroactivity remains contested in some cases.  So, the Supreme Court will be hearing oral argument on Tuesday, May 4 in Terry v. US to determine if Tarahrick Terry, who was sentenced in 2008 to over 15 years in prison after being convicted of possessing with intent to distribute about 4 grams of crack cocaine, can benefit from the FIRST STEP Act's provision to make the Fair Sentencing Act reforms retroactive.

All the briefing in Terry is available here at SCOTUSblog, and Ekow Yankah has a great preview here titled "In final case the court will hear this term, profound issues of race, incarceration and the war on drugs." Here is how it starts:

Academics naturally believe that even obscure cases in their field are underappreciated; each minor tax or bankruptcy case quietly frames profound issues of justice.  But, doubtful readers, rest assured that Terry v. United States — which the Supreme Court will hear on Tuesday in the final argument of its 2020-21 term — packs so many swirling issues of great importance into an absurdly little case, it can hardly be believed.  The national debate on historical racism in our criminal punishment system?  Yes.  Related questions of how we address drug use with our criminal law rather than as a public health issue?  Undoubtedly.  Redemption after committing a crime? Of course.  The ramifications of a contested presidential election?  Sure.  The consequences of hyper-technical statutory distinctions on the fate of thousands?  Goes without saying.  A guest appearance by a Kardashian?  Why not.

Henry Gass at the Christian Science Monitor has another great preview piece here under the headline "On the Supreme Court docket: Fairness, textualism, and crack cocaine."  Here is an excerpt:

Mr. Terry’s punishment followed war-on-drugs-era federal guidelines that treated a gram of crack cocaine 100 times worse than a gram of powder cocaine.  The sentencing disparity has come to be viewed, by critics spanning the political spectrum, as one of the great injustices of the war on drugs.  It’s been one of the key drivers of mass incarceration, those critics say, in particular subjecting thousands of low-level offenders — the vast majority young people of color – to long prison terms.

In the past decade Congress has reduced almost all of those sentences — all except for Mr. Terry, and thousands of low-level crack offenders like him.  It’s a deferral of justice that has brought him into an unlikely alliance with congressional leaders from both parties, as well as former federal judges, prosecutors, and, latterly, the Biden administration.

On Tuesday it will bring him to the U.S. Supreme Court, when the justices will hear arguments on whether this vestige of the tough-on-crime era should be eliminated.  His case is relatively narrow and technical, but in a country — and a Congress — that has come to roundly condemn drug policies like the crack powder sentencing disparity, it’s significant.

Another effective (but still incomplete) look at possible sentencing outcomes for those prosecuted for Capitol riot

This new AP article, headlined "Charged in Jan. 6 riot? Yes, but prison may be another story," reviews potental sentencing outcomes for their role in the January 6 Capitol riot.  Here are some excerpts, to be followed by a bit of contextual commentary:

More than 400 people have been charged with federal crimes in the Jan. 6 attack on the Capitol.  But prison time may be another story.

With new defendants still flooding into Washington’s federal court, the Justice Department is under pressure to quickly resolve the least serious of cases.  While defendants charged with crimes such as conspiracy and assaulting officers during the insurrection could be looking at hefty sentences, some members of the mob who weren’t caught joining in the violence or destruction could see little to no time behind bars.

“The people who were just there for the ride and somewhat clueless, I think for most of them they probably will not get prison time. And for what it’s worth, I think that’s appropriate,” said Rachel Barkow, a professor at the New York University School of Law. “Having a misdemeanor on their record, going through all this is probably a pretty big wake-up call for most of the folks,” she said.

The siege was like nothing the country had ever seen, as the mob of supporters of then-President Donald Trump descended on the Capitol to stop the congressional certification of Joe Biden’s election victory.  But in the months since, Trump loyalists have worked to minimize the assault, while Democrats and others want justice for what they saw as a crime against democracy and the rule of law....

It’s a formidable task for lawyers and judges alike to determine the appropriate punishment to seek and hand down. Many defendants had steady jobs and no criminal records, factors typically rewarded with leniency in the criminal justice system.  As plea negotiations ramp up, the Justice Department must work to differentiate between the varying actions of the members of the mob that day without making it seem like some are getting away with mere slaps on the wrist....

Of the more than 400 federal defendants so far, at least 100 are facing only lower-level crimes such as disorderly conduct and entering a restricted area that do not typically result in time behind bars for first-time offenders.  Hundreds more were also charged with more serious offenses — like conspiracy, assault or obstruction of an official proceeding — that carry hefty prison time of years behind bars, but theses defendants could take pleas that would wipe those charges from their cases. Prosecutors have said they expect to charge at least 100 more people.

It’s going to be a test of racial fairness. The majority of the defendants are white.  Black and Latino defendants tend to face harsher sentences for the same crimes, and from the moment the mob marched on the Capitol, there were questions about whether the law enforcement response would have been different had the rioters been people of color....

If prosecutors seek stiff sentences for the lowest level Capitol riot defendants, they could lose their credibility with judges, said Laurie Levenson, a former federal prosecutor who now teaches at Loyola Law School.  And if they set the standard too high, they’ll be juggling hundreds of cases going to trial instead of focusing on the major offenders. Those most serious cases are where prosecutors can and should send a strong message, Levenson said. “If there’s any pressure on the Justice Department, it’s to deal with these cases in a way so that you never have to see them again,” she said. “And if people think that the price isn’t too high, who knows?”

At least one judge has expressed frustration at the pace of the prosecutions, which have overwhelmed the federal court already backlogged because of pandemic-related delays. On Tuesday, U.S. District Judge Christopher Cooper ordered the pretrial release of a man who was photographed sitting with his feet on a desk in House Speaker Nancy Pelosi’s office. The judge expressed concern that the case is moving too slowly.

Cooper noted that Richard Barnett has been jailed for nearly four months and questioned whether his time behind bars while the case is ongoing could exceed a possible sentence should Barnett plead guilty. The prosecutor estimated that the government would recommend a prison term ranging from nearly six years to 7 1/4 years if Barnett is convicted, though he could get credit for accepting responsibility if he pleads guilty.

All high-profile prosecutions, particularly when they involve persons without significant criminal histories, provide interesting settings to explore sentencing purposes and practices. These Capitol riot prosecutions have the added political intrigue of having those who usually advocate for harsher forms of justice likely being much more sympathetic to these defendants, while at least some usually most troubled by harsh sentencing may be more supportive of prison terms this unique setting.  And, as this AP article rightly notes, there overarching surely concerns about racial and social equity in light of historic patterns of prosecution and sentencing practices.

But the equity issue leaves me eager to see more comprehensive and consistent coverage of punishments being handed out to others involved in criminal behavior during other protests through 2020.  For example, consider these sentencing reports from local press in recent weeks:

• Fedeal prosecution: "Brainerd man sentenced to 4 years for Minneapolis police station fire during Floyd protests"
• Federal prosecution: "Edmonds man sentenced to prison for torching police cars during Seattle riot"
• Fedeal prosecution: "Moorhead man sentenced to 2 years in federal prison following Fargo riots"
• Fedeal prosecution: "Fargo man who stomped squad car during riot sentenced to probation"
• State prosecution: "Eric Christopher Ruffin [pled] guilty to third-degree arson [and] was sentenced to three years on probation."
• State prosecution: "Drunken rioter gets probation; judge counsels him ‘not to pick up the bottle’"

I am certain that this is NOT anything close to a thorough accounting of the sentences that have been already handed down to persons who have engaged in criminal activity during protests and riots (e.g., here is a press report from Dec 2020 of a few case outcomes in Oregon).  I am even more certain that it could provide incredibly valuable for ultimately examining and assessing Capitol riot outcomes to have some kind of thorough overview of outcomes in these other (similar?) cases.   

Prior related posts:

• "Many Capitol rioters unlikely to serve jail time" because some facing only misdemeanor convictions
• Noting the importance of charging policies and practices (and consistency?) as federal rioting charges get resolved from coast-to-coast
• Harsh penal treatment of some Capitol rioters being criticized by notable progressive |

"Race-Based Remedies in Criminal Law"

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

This Article evaluates the constitutional feasibility of using race-based remedies to address racial disparities in the criminal system.  Compared to white communities, communities of color are over-policed and over-incarcerated. Criminal system stakeholders recognize these conditions undermine perceptions of legitimacy critical to ensuring public safety.  As jurisdictions assiduously attempt race-neutral fixes, they also acknowledge the shortcomings of such interventions.  Nevertheless, jurisdictions dismiss the feasibility of deploying more effective race-conscious strategies due to the shadow of a constitutional challenge.  The apprehension is understandable.  Debates around affirmative action in higher education and government contracting reveal fierce hostility toward race-based remedies.

This Article, however, contends that within the criminal system, strict scrutiny requirements do not pose an insurmountable obstacle to race-based policies.  There is promising decisional law surrounding the use of race-conscious efforts to address criminal-system challenges.  Drawing on this favorable doctrine, the Article tests the constitutionality of race-based remedies in one of the most dynamic areas in the criminal system: the use of risk assessment tools, which jurisdictions are increasingly relying upon to make decisions, even as these tools reproduce racial harms.  To enrich the analysis, the Article presents a case study of a jurisdiction struggling to mitigate racial harms perpetuated by its pre-trial risk assessment tool.

The Article finds reasons to be optimistic about how race-based remedies might fare within the criminal-system context, where courts are predisposed to granting broad discretion to the stated needs of criminal law stakeholders.  Within this unique context, the Article provides a template for a race-based approach that potentially survives an Equal Protection challenge.

"A Courts-Focused Research Agenda for the Department of Justice"

The title of this post is the title of this notable new Brennan Center report.  Here is its introduction:

Millions of individuals interact with the U.S. criminal and civil legal system every year. Many of them look to the courts to defend their rights and ensure fair outcomes — and all too often, courts are falling short.

As a candidate, President Biden committed to combatting mass incarceration, ending the criminalization of poverty, rooting out racial disparities, and refocusing our criminal and civil legal systems on the key principles of equality, equity, and justice. State and federal courts are critical to achieving these goals, but there is much that we don’t know about how they currently function and where reform is most acutely needed.

In order for the Department of Justice (DOJ) to effectively support states, local jurisdictions, tribal governments, territories, and the federal government in refashioning our courts into more just institutions, research and data are urgently required.

There must be an understanding not only of who is entering the court system, but why they are brought into it, and what their experiences illustrate about our vast system of local, state, and federal courts. For example, the Biden administration has emphasized its intention to end the practice of incarcerating people for their inability to pay court debt, yet we still know very little about how these and other predatory court practices function across the country. The Covid-19 pandemic prompted an unprecedented experiment with remote court proceedings in jurisdictions across the country, but we still know very little about how remote court impacts access to justice and the fairness of proceedings.

President Biden has also emphasized the importance of racial, ethnic, gender, and professional diversity on the bench — including nominating judges who bring diversity to the bench. But while the judiciary publishes diversity data about Article III judges, we lack basic information about the demographics or professional experience of many judges in state and Article I federal courts. These are just a few of the data and research gaps that make our courts problematically opaque.

Although just scratching the surface, we offer some recommendations for the Office of Justice Programs (OJP) and National Institute of Justice (NIJ) to collect additional data and perform research to better understand how our courts do or don’t work for millions of Americans, as well as setting forth a research agenda that could shed more light on how to improve our nation’s vast system of local, state, and federal courts. 

Mixed messages on mandatory minimums from executive branch in New Jersey witrh a retroactive kicker

In this post last month, I flagged the debate in New Jersey where the Governor was threatening to veto a bill to repeal mandatory minimums for certain non-violent crimes because it repealed too many mandatory minimum sentences.  Sure enough, that veto happened yesterday, but so too did an interesting related action from the NJ Attorney General.  This Politico piece, headlined "Murphy vetoes mandatory minimum bill as Grewal unilaterally eliminates some sentences," provides these details (with some emphasis added):

Gov. Phil Murphy on Monday vetoed a bill that would do away with mandatory minimum prison terms for non-violent crimes, excising sections that would eliminate the sentences for corruption offenses.  At the same time, Attorney General Gurbir Grewal issued a directive requiring that prosecutors make use of a provision in New Jersey law allowing them to set aside mandatory minimum sentences for drug-related crimes.

“I am particularly troubled by the notion that this bill would eliminate mandatory prison time for elected officials who abuse their office for their own benefit, such as those who take bribes.  Our representative democracy is based on the premise that our elected officials represent the interests of their constituents, not their own personal interests,” Murphy wrote in his veto message, which also took a shot at former President Donald Trump.  “I cannot sign a bill into law that would undermine that premise and further erode our residents’ trust in our democratic form of government, particularly after four years of a presidential administration whose corruption was as pervasive as it was brazen.”

The two executive actions are the culmination of an eight-month political fight between the Murphy administration and the Democrat-controlled Legislature over what began as benign legislation that followed exactly the recommendations of the New Jersey Criminal Sentencing & Disposition Commission.  The commission, in a November 2019 report, recommended eliminating mandatory sentences for a wide swath of mostly drug and property crimes with the aim of reducing racial disparities among the incarcerated.

Murphy’s conditional veto essentially returns the legislation, NJ S3456 (20R), to its initial form — which did not address corruption offenses — before state Sen. Nicholas Sacco began a successful effort to change it. Grewal’s directive may help allay the concerns of criminal justice advocates who did not want to see mandatory minimum sentences upheld over a political fight, leading some to throw their support behind the legislative effort.  The directive goes further than the legislation would have, applying retroactively to prisoners serving mandatory minimum sentences for drug offenses.  The directive does not apply to mandatory minimum sentences for non-violent property crimes, and it was not immediately clear how many inmates are serving time under those laws.

“It’s been nearly two years since I first joined with all 21 of our state’s County Prosecutors to call for an end to mandatory minimum sentences for non-violent drug crimes,” Grewal said in a statement.  “It’s been more than a year since the Governor’s bipartisan commission made the same recommendation. And yet New Jerseyans still remain behind bars for unnecessarily long drug sentences.  This outdated policy is hurting our residents, and it’s disproportionately affecting our young men of color.  We can wait no longer. It’s time to act.”

New Jersey Together, a coalition of criminal justice reform advocates, said in a statement that “ending mandatory minimum sentences for non-violent drug crimes prospectively and for those currently incarcerated will be a huge step in the right direction.” “Now, the work should begin with the governor and the Legislature to make this permanent and to end mandatory minimum sentencing as a whole,” the group said.

Amol Sinha, executive director of the ACLU-NJ, said in a statement that even though Grewal’s directive takes “significant steps to mitigate the harms of some of the most problematic mandatory minimums,” his group is “disappointed” because “our state falls short by failing to enact legislation that can promote justice for thousands of New Jerseyans.” Sinha urged the Legislature to concur with Murphy’s veto....

Grewal’s directive allows prosecutors to seek periods of parole ineligibility “when warranted to protect public safety based on the specific facts of the case.”  Advocates have long sought to repeal mandatory minimum sentences, especially those that came about as part of the “War on Drugs.”  For instance, New Jersey imposes harsh mandatory sentences for those caught selling drugs within 1,000 feet of a school, a crime far more likely to harshly punish dealers in denser urban areas and who are more likely to be Black and Hispanic.  At the time of a 2016 report by The Sentencing Project, New Jersey incarcerated white people at a rate of 94 per 100,000 compared to 1,140 for Black and 206 for Hispanic people.

A bill that mirrored the recommendations of the New Jersey Criminal Sentencing & Disposition Commission was nearing the final stages of the the legislative process when Sacco (D-Hudson) quietly requested an amendment to eliminate the mandatory minimum sentences for official misconduct.  Sacco later acknowledged to POLITICO that he requested the amendment. Walter Somick, the son of Sacco‘s longtime girlfriend, is facing several corruption-related charges, including official misconduct, over an alleged no-show job at the Department of Public Worker in North Bergen, where Sacco is mayor and runs a powerful political machine....

“I am cognizant of the fact that Attorney General‘s directives could be changed in a future administration by the stroke of a pen, and thus recognize that there is still a need to permanently codify these changes in statute,” Murphy said. “I remain hopeful that the Legislature will concur with my proposed revisions, which reflect the Commission’s evidence-based recommendations and its desire that these recommendations apply prospectively and retroactively.”

Because I generally view all mandatory minimum sentencing provisions for nonviolent offenses to be problematic, I am a bit disappointed by the veto of the legislative reform here.  But because I generally favor retroactive reforms to enable excessive prior prison terms to be addressed, the retroactive relief made possible by the NJ AG is a comforting related development.  The basics of the AG action is discussed in this official press statement and the full 11-page directive can be accessed at this link.

Prior related posts:

• New Jersey commission releases big report recommending numerous big sentencing reforms
• Will NJ Gov veto a bill to repeal mandatory minimums for certain non-violent crimes because it repeals too many?

Brennan Center launches notable new essay series titled "Punitive Excess"

I was very pleased to receive a few emails this morning alerting me to a new essay series unveiled today by the Brennan Center for Justice, titled "Punitive Excess." Here is how L.B. Eisen, the Director of the Brennan Center Justice Program, describes this notable new series of essays:

America’s criminal legal system is unduly harsh.  Experts explain how we got here and solutions that will benefit everyone.

America can’t shrink its reliance on mass incarceration until we confront our approach to punishment.  These essays by renowned experts in a variety of fields focus on our deep-rooted impulse to punish people in ways that are far beyond what could be considered proportionate.  Together, they illustrate how necessary it is to rein in the punitive excess of the criminal legal system, which is inexorably entwined with the legacy of slavery. T hey also highlight how we have marginalized poor communities and people of color through criminalization and punishment.

Addressing a range of issues — from policing to prosecution to incarceration to life after prison — the writers highlight how our nation has prioritized excess punishment over more supportive and less traumatic ways of dealing with social harm. The essays explore whether, when, and how we could have made different decisions that would have changed the way these systems of punishment and social control evolved.

Looking ahead, they also ask how we can learn from this failed experiment with mass incarceration and prioritize human dignity over human misery.  We hope this series will spur increased discussion on these vital topics.

And here are the first set of essays in the series:

• “The Era of Punitive Excess” by Jeremy Travis and Bruce Western

• “How Punitive Excess Is a Manifestation of Racism in America” by Theodore Johnson

• “Losing Our Punitive Civic Religion” by Jonathan Simon

Latest American Journal of Bioethics issue takes hard look at "War on Drugs"

I am pleased to have discovered that new issue of the American Journal of Bioethics has a lead article and a host of responsive commentaries on the modern state of debate over the war on drugs.  Here are links to all the great looking content:

Ending the War on Drugs Is an Essential Step Toward Racial Justice by Jeffrey Miron & Erin Partin

Racial Justice Requires Ending the War on Drugs by Brian D. Earp, Jonathan Lewis, Carl L. Hart & with Bioethicists and Allied Professionals for Drug Policy Reform

Ending the War on People with Substance Use Disorders in Health Care by Kelly K. Dineen & Elizabeth Pendo

Legalization of Drugs and Human Flourishing by Marianne Rochette, Esthelle Ewusi Boisvert & Eric Racine

Ending the War on Drugs: Public Attitudes and Incremental Change by Joseph T. F. Roberts

Some Contributions on How to Formulate Drug Policies and Provide Evidence-Based Regulation by S. Rolles, D. J. Nutt & A. K. Schlag

Ending the War on Drugs Need Not, and Should Not, Involve Legalizing Supply by a For-Profit Industry by Jonathan P. Caulkins & Peter Reuter

Racial Justice and Economic Efficiency Both Require Ending the War on Drugs by Pierre-André Chiappori & Kristina Orfali

Ending the War on Drugs Requires Decriminalization. Does It Also Require Legalization? by Travis N. Rieder

Beyond Decriminalization: Ending the War on Drugs Requires Recasting Police Discretion through the Lens of a Public Health Ethic by Brandon del Pozo, Leo Beletsky, Jeremiah Goulka & John Kleinig

Drug Legalization is Not a Masterstroke for Addressing Racial Inequality by Wayne Hall & Adrian Carter

The Importance of Rights to the Argument for the Decriminalization of Drugs by Kyle G. Fritz

The “War on Drugs” Affects Children Too: Racial Inequities in Pediatric Populations by Emily W. Kemper, Emily Davis, Anthony L. Bui, Austin DeChalus, Melissa Martos, Jessica E. McDade, Tracy L. Seimears & Aleksandra E. Olszewski

“It’s a War on People …” by Jarrett Zigon

“Second Chance” Mechanisms as a First Step to Ending the War on Drugs by Colleen M. Berryessa

"Doing Away With Disorderly Conduct"

The title of this post is the title of this new article by Rachel Moran recently posted to SSRN.  Here is its abstract:

Disorderly conduct laws are weapons the powerful wield against the unpopular. All fifty states and many municipalities have disorderly conduct laws that criminalize speech and conduct ranging from unreasonable noise to opprobrious language.  Although these laws are facially neutral, their astounding breadth and vagueness serve as a rubber stamp for law enforcement to surveil and criminally charge marginalized people.  Their targets include communities of color, people with unpopular religious or political beliefs, and people whose mental health struggles render them incapable of complying with societal expectations of order.

While courts and scholars have criticized these laws for decades, none have explicitly called for their abolition.  This article does so.  The article examines both the constitutional flaws of disorderly conduct laws and the many societal harms they enable, before ultimately concluding that any minimal good they accomplish cannot justify the damage they inflict.

Amidst a growing national reckoning over the crisis of abusive and discriminatory policing, this article provides a timely critique of the criminal laws that empower such policing.  It uses disorderly conduct laws as a lens through which to examine the extraordinary costs of overcriminalization and the vulnerable people who most often bear the brunt of such costs.  While disorderly conduct laws are not the only criminal laws legislatures should consider eliminating, they are both constitutionally and socially problematic to a degree few other criminal laws achieve.

Seemingly encouraging, but quite complicated, analysis of racial disparities in federal drug sentencing

The past week's Washington Post included this notable op-ed by Charles Lane under the headline "Here’s some hope for supporters of criminal justice reform." A focal point of the op-ed was this newly published paper by sociologist Michael Light titled "The Declining Significance of Race in Criminal Sentencing: Evidence from US Federal Courts."  Here is how the op-ed discusses some key findings with a positive spin:

How many more months in prison do federal courts give Black drug offenders as opposed to comparable White offenders?

The correct answer, through fiscal 2018, is: zero.  The racial disparity in federal drug-crime sentencing, adjusted for severity of the offense and offender characteristics such as criminal history, shrank from 47 months in 2009 to nothing in 2018, according to a new research paper by sociologist Michael Light of the University of Wisconsin.  For federal crimes of all types, there is still a Black-White discrepancy, but it, too, has shrunk, from 34 months in 2009 to less than six months in 2018....

What went right?  Basically, decision-makers unwound policies that had provided much higher maximum penalties for trafficking crack cocaine than the powdered variant and, crucially, had encouraged federal prosecutors to seek those maximum penalties.  Supreme Court rulings, in 2007 and 2009, gave federal judges latitude to impose more-lenient sentences for crack dealing. The 2010 Fair Sentencing Act reduced the crack vs. powder punishment disparity, from a maximum of 100 times as much prison time to 18.

And starting that same year, the Obama administration Justice Department actively sought to diminish the disparity. As part of this effort, Attorney General Eric H. Holder Jr. instructed federal prosecutors in 2013 not to seek the maximum penalty for drug trafficking by low-level, nonviolent defendants.

The upshot was that the average federal drug sentence for Black offenders fell 23 months, while that for White offenders rose 23 months, possibly due to the growing prevalence of opioids and methamphetamine in White communities.  For all federal crimes, sentences for White offenders rose from 47 months to 61, while those for Black offenders fell from 81 to 67.

The United States has now restored the racial parity in federal sentencing that — perhaps surprisingly — existed before the war on crack’s start in the late 1980s.  As of the mid-1980s, Black and White offenders had received roughly 26 months in prison.

Though I am disinclined to be too much of a skunk at a sentencing equity party, I do not believe the Light study really should be the cause of too much celebration in our era of modern mass incarceration.  For starters, the Light study documents that greater racial parity was achieved as much by increases in the length of federal drug sentences given to white offenders as decreases in these sentences to black offenders.  More critically, in 2018, the feds prosecute a whole lot more drug defendants and the average federal sentence for both White and Black drug offenders is still a whole lot longer (nearly 300% longer) than in an earlier era.  I find it hard to be too celebratory about they fact that we now somewhat more equally send a whole lot more people to federal prison for a whole lot longer for drug offenses.

Moreover, the Light analysis highlights that it is largely changes in the composition of cases being sentenced in federal court that account for why average drug sentences are now more in parity among whites and blacks.  The longest federal drug sentences are handed out in crack cases (disproportionately Black defendants) and meth cases (disproportionately White defendants), so as crack prosecutions declined and meth prosecutions increased over the last decades (see basic USSC data here), it is not that suprising that average federal drug sentences for black offenders went down and those for white offenders went up. 

I do not want to underplay the importance of the harsh federal system now being directed more equally toward whites and blacks, but I do want to be sure to highlight one more key finding from the Light stidy: "In 2018, black offenders received an additional 1.3 mos. of incarceration relative to their white peers.  In drug cases, they received an additional 5 mos.  These results are not explained by measures of offense severity, criminal history, or key characteristics of the crime and trial."  In other words, while Light finds that average federal drug sentences have come into parity across all cases, looking at individual drug cases reveals black offenders are still sentenced to nearly a half-year longer than comparable white offenders.  

That all said, it is fascinating to see the data that Light spotlights and effectively unpacks (I highly recommend his paper), and I am grateful Lane spotlights what still might reasonably be viewed as a hopeful story.  I especially hope folks will keep an eye on these data as we now work our way through the COVID era and its unpredicatable impact on case composition and processing.

"Who Controls Criminal Law? Racial Threat and the Adoption of State Sentencing Law, 1975 to 2012"

The title of this post is the title of this interesting article published in the American Sociological Review earlier this year that I just came across. This research was authored by Scott Duxbury, and here is its abstract:

Threat theory argues that states toughen criminal laws to repress the competitive power of large minority groups.  Yet, research on threat suffers from a poor understanding of why minority group size contributes to social control and a lack of evidence on whether criminal law is uniquely responsive to the political interests of majority racial groups at all.  By compiling a unique state-level dataset on 230 sentencing policy changes during mass incarceration and using data from 257,362 responses to 79 national surveys to construct new state-level measures of racial differences in punitive policy support, I evaluate whether criminal sentencing law is uniquely responsive to white public policy interests.  Pooled event history models and mediation analyses support three primary conclusions: (1) states adopted new sentencing policies as a nonlinear response to minority group size, (2) sentencing policies were adopted in response to white public, but not black public, support for punitive crime policy, and (3) minority group size and race-specific homicide victimization both indirectly affect sentencing policy by increasing white public punitive policy support.  These findings support key theoretical propositions for the threat explanation of legal change and identify white public policy opinion as a mechanism linking minority group size to variation in criminal law.

Notable new briefings from the Prison Policy Initiative

Regular readers are familiar with my posts highlighting the cutting-edge research and analysis by the Prison Policy Initiative, and in recent weeks PPI has a bunch of notable new "briefings" on pressing and persistent prison and jail issues:

Visualizing the unequal treatment of LGBTQ people in the criminal justice system; LGBTQ people are overrepresented at every stage of our criminal justice system, from juvenile justice to parole.

New data on jail populations: The good, the bad, and the ugly; A new BJS report shows that U.S. jails reduced their populations by 25% in the first few months of the pandemic. But even then, the U.S. was still putting more people in local jails than most countries incarcerate in total.

Research roundup: Violent crimes against Black and Latinx people receive less coverage and less justice; We explain the research showing that violent crimes against Black Americans — especially those in poverty — are less likely to be cleared by police and less likely to receive news coverage than similar crimes against white people.

It’s all about the incentives: Why a call home from a jail in New York State can cost 7 times more than the same call from the state’s prisons

Virginia officially repeals its death penalty

I reported here last month that Virginia was on the verge of repealing the death penalty in the state.  Today, as reported in this new NPR piece, the repeal became official.  Here are some details:

Virginia Gov. Ralph Northam signed a bill into law abolishing the death penalty in the state after the Democratically-controlled legislature passed the measure late last month. "It is the moral thing to do to end the death penalty in the Commonwealth of Virginia," said the governor....

Virginia is the first state in what was the Confederacy to stop using the punishment. The commonwealth has executed more people than any other state since the first execution took place at Jamestown in 1608.

Opponents of the death penalty cite the high cost, the possibility of executing the innocent and the disproportionate racial impact. Black defendants are more likely to face death sentences, especially when victims are white. "The death penalty is the direct descendant of lynching. It is state-sponsored racism and we have an opportunity to end this today," said Democratic Del. Jay Jones, speaking on the floor of the House last month.

Virginia has gone through several racial reckonings in the last few years. Michael Stone, executive director of Virginians for Alternatives to the Death Penalty, says the 2019 controversy involving Gov. Northam and an old racist yearbook photo may have brought the state closer to this point. "I think the governor's blackface scandal certainly predisposed him to being far more sensitive about racial justice issues."

And then came the police killing of George Floyd by police in Minneapolis last year. "The Black Lives Matter protests turbocharged the move toward criminal justice reform in general, and death penalty abolition in particular," says Stone.

Two Republicans voted with Democrats in favor of abolition, but the party has been largely unified in opposition, along with law enforcement groups who want to keep the penalty for people who murder police officers.

Many victim's families have spoken out against the death penalty, saying it makes healing more difficult. Rachel Sutphin is a vocal opponent of the death penalty and objected to the 2017 execution of her father's killer. William Morva, who was the last person to be executed in Virginia, fatally shot her father, Eric Sutphin, a police officer, in 2006. She objected to Morva's execution in part because he was diagnosed with a serious mental illness....

Gov. Northam thanked lawmakers for getting the bill to his desk, "Virginia will join 22 other states that have ended use of the death penalty. This is an important step forward in ensuring that our criminal justice system is fair and equitable to all."

Prior recent related post:

• Virginia, the state "that since Colonial times has executed more people than any other," is on verge of abolishing the death penalty 

"The Gender of Gideon"

The title of this post is the title of this notable new paper authored by Jessica Steinberg and Kathryn Sabbeth now available via SSRN. Here is its abstract:

This Article makes a simple claim that has been overlooked for decades and yet has enormous theoretical and practical significance: the constitutional guarantee of counsel adopted by the Supreme Court in Gideon v. Wainwright accrues largely to the benefit of men.  In this Article, we present original data analysis, which demonstrates that millions of women face compulsory and highly punitive encounters with the justice system but do so largely in the civil courts, where no right to counsel attaches.  The demographic picture that emerges is one in which the right to counsel skews heavily against women’s interests.  As this Article shows, the gendered allocation of the right to counsel has individual and systemic consequences that play an underappreciated role in perpetuating gender inequality.

We revisit well-known doctrine, and, in contrast to all prior literature, we place gender at the center of the Court’s jurisprudence on the right to counsel.  Liberty principles have been paramount in the Court’s opinions, but the liberty interests of women have been devalued.  In Lassiter v. Department of Social Services, the Court refused to recognize the termination of a Black mother’s relationship with her child as deserving the right to counsel.  Prior scholars have shown that the Gideon Court aimed to protect Black men from abuses of state power, but protecting Black women from such abuse is nowhere in the Court’s jurisprudence.

Since Lassiter, the Court has refused to recognize a constitutional guarantee of representation for civil defendants with fundamental interests at stake, and the largest categories of these cases — family law, eviction, and debt collection — all disproportionately affect Black women.  As we show, the gendered deprivation of a right to counsel relegates women to a secondary legal status and impinges on the functioning of American democracy.  Drawing on the example of housing deprivation, a highly visible collateral effect of the pandemic, we illustrate how lawyerless defendants are now the norm in the civil justice system, with women most severely impacted by this crisis.  First, their individual rights are routinely trampled.  Powerful governmental and private adversaries of these women have captured the civil courts, with the result that judges regularly fail to enforce even well-established law.  Second, without lawyers, appeals are scarce, and the law fails to evolve in areas of particular importance to women’s lives.  Third, women’s ability to act in the world, protected by the rule of law, has been disproportionately compromised, resulting in women’s entrenched subordination.  Finally, without lawyers to serve as watchdogs in the civil courts, constitutional doctrine has rendered women’s most important legal problems invisible.  This has undermined opportunities to identify the system’s shortcomings and agitate for reform.

"The Intersection of Race and Algorithmic Tools in the Criminal Legal System"

The title of this post is the title of this new article authored by Vincent Southerland now available via SSRN. H ere is its abstract:

A growing portion of the American public — including policymakers, advocates, and institutional stakeholders — have generally come to accept the fact that racism endemic to the United States infects every stage of the criminal legal system.  Acceptance of that fact has led to efforts to address and remedy pervasive and readily observable systemic bias. Chief among those efforts is a turn toward technology — specifically algorithmic decision-making and actuarial tools.  Many have welcomed the embrace of technology, confident that technological tools can solve a problem — race-based inequity — that has bedeviled humans for generations.

This article engages that embrace by probing the adoption of technological tools at various sites throughout the criminal legal system and exploring their efficacy as a remedy to racial inequality.  Then, by applying a racial justice lens, this article develops and offers a set of prescriptions designed to address the design, implementation, and oversight of algorithmic tools in spaces where the promise offered by technological tools has not been met.  Adherence to that lens may draw us closer to what this article terms a pragmatic abolitionist ethos regarding the use of technological tools in the criminal legal system.  Such an ethos does not mean the immediate absence of a criminal legal system altogether.  It instead means a criminal system that ultimately operates in ways dramatically different from the current regime by divesting from incarceration and investing in community well-being, human welfare, and rehabilitation.

"Procedure's Racism"

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

Criminal procedure is systemically racist and classist.  This Article argues that comparing criminal procedure to civil procedure on a broad scale provides new and valuable insight into the systemic racism and classism woven into the fabric of U.S. law.  Criminal defendants are disproportionately poor people of color, while civil defendants are often wealthy corporations whose executives are largely White; those wealthy civil defendants play an outsized role in developing civil procedure.  One might expect to see greater procedural protections before criminal defendants are deprived of their liberty than for civil defendants before they are deprived of their money.  But the reality cuts decidedly the other way.  Instead of calibrating protections for defendants to the importance of the interest at stake, disparities between the civil and criminal systems instead track differences in race and class between defendants in the two systems.  Criminal defendants, for instance, can be locked in cages for two days on a mere accusation by police before a magistrate considers the validity of that deprivation.  Civil defendants, by contrast, cannot be deprived of their property without first having a judge hear their arguments. Criminal defendants sometimes do not learn about the government’s evidence until the eve of or during trial — a trial that comes in scant few cases.  Civil defendants would never be forced into such a trial by surprise but rather have numerous tools of formal discovery to compel evidence from the opposing party throughout the pretrial period.

The primary focus of this Article is demonstrating that procedure disparities between civil and criminal systems largely track race and class.  But it also briefly compares changes in available punishment.  In criminal law, pathological politics largely create a one-way upward ratchet whereby criminal law continues to afford prosecutors ever-greater power and discretion to pursue ever greater sentences.  In tort law, by contrast, most state legislatures have limited plaintiff’s lawyers’ discretion through reforms such as caps on noneconomic damages or limits on punitive damages.  So too is the Supreme Court’s role in regulating substantive fairness in these two systems widely disparate.  In criminal law, the Supreme Court upheld a life sentence for a defendant convicted of $88 check theft.  By contrast, the Supreme Court struck down a $2 million punitive damages award against a multinational corporate defendant as unfair.  This Article offers the big-picture analysis of how comparing civil and criminal systems in the U.S. reveals systemic racism and classism.

"The Color of Collateral Damage: The Mutilating Impact of Collateral Consequences on the Black Community and the Myth of Informed Consent"

The title of this post is the title of this new paper authored by Trevor Shoels and recently made available on SSRN.  Here is its abstract:

The rights of the convicted have long been constrained by the relentless imposition of collateral consequences of criminal convictions.  More specifically, collateral consequences of drug convictions have a disparate impact on the Black community due to over-policing of Black neighborhoods.  Consequently, Black people are over-prosecuted, leading to more convictions and ultimately making them the primary victim of collateral consequences. Certain collateral consequences almost exclusively affect Black people and are strikingly similar to Jim Crow laws.  Similar to Jim Crow laws, these collateral consequences almost exclusively prohibit the Black convicted from public housing, welfare assistance, financial aid, the ability to vote, the ability to receive certain jobs and licenses, and more.

Collateral consequences are considered categorically different from forms of direct punishment like fines, jail time, and probation.  Due to this deceptive distinction, there is no notice requirement for collateral consequences at the plea stage.  Thus, many defendants will accept deals for guilty pleas, completely unaware that collateral consequences will affect them for what could be the rest of their lives.  In regard to this mockery of justice, this Article implores the argument that the informed consent requirement, as it stands, is a myth.

This article discusses the constitutional implications surrounding the prejudicial imposition of collateral consequences and the blurred distinction made between collateral consequences and direct punishment.  In doing so, this article proposes (1) Congress employ a legislative overhaul to remove prejudicial collateral consequences (2) Supreme Court change the standard of judicial review from the rational basis test to strict scrutiny and extend their holding in Padilla v. Kentucky to apply to all collateral consequences, and (3) Federal and State legislators enact legislation aimed at placing procedural safeguards — like a notice requirement — at the plea stage.

Will NJ Gov veto a bill to repeal mandatory minimums for certain non-violent crimes because it repeals too many?

The question in the title of this post is prompted by this local story reporting on notable legislative developments our of New Jersey, headlined "Bill to end mandatory minimum sentences for certain crimes in N.J. now goes to Murphy’s desk."  Here are highlights of a story with so many interesting elements (with links from the original and my emphasis added):

A landmark criminal justice bill that would end mandatory minimum sentences for certain crimes in New Jersey, including non-violent drug offenses, is now heading to Gov. Phil Murphy’s desk after being passed by the state Assembly on Monday.

The bill (S2586/A4369) is the major reform recommended by the state’s Criminal Sentencing and Disposition Commission, which Murphy convened in 2018 due to the state having the worst disparity in the country for rates of incarceration between Black and white offenders.  The commission found that ending mandatory minimums for certain crimes would help to eliminate the disparity in the state’s criminal justice system, an initiative Murphy has championed as governor.

It is unclear if Murphy, a Democrat, will sign the bill into law.  “We’ll have further comment when we are ready to take action on the bill,” a spokesman for the governor said Monday afternoon.

As the bill was moving through the legislature, state Sen. Nicholas Sacco, D-Hudson, added an amendment to the bill to make the legislation also apply to official misconduct charges, which is sometimes used to prosecute politicians, police officers and other public workers.  The son of Sacco’s girlfriend is facing an official misconduct offense for allegedly submitting false timesheets in North Bergen, where Sacco is the mayor. 

Murphy has been publicly steadfast in that he does not support a bill that included ending mandatory sentences for official misconduct. “Let me say unequivocally, official misconduct was not on the list. I just want to say as clearly as I can, I do not support official misconduct being roped into this legislation,” the governor said in September.

But advocates continued to press lawmakers to move forward with the bill with or without the official misconduct charge included in it due to the number of people impacted, and the few number of people charged with official misconduct in recent years.

“Pass it for the thousands of people who will see earlier parole,” NJ Together, a non-partisan coalition of faith groups, wrote in a letter to lawmakers last week. “Pass it for the tens of thousands who will benefit in the future because they will not be subject to these unfair sentencing practices. Pass it for their families and for a more just criminal justice system here in New Jersey.”...

“This legislation, if signed by Gov. Murphy, will serve as a national model for criminal justice reform,” said Assemblyman Nick Chiaravalloti, D-Hudson. “This is an important social justice issue.”

The bill retroactively applies to inmates serving certain mandatory minimum sentences, including non-violent drug offenses, making more than 2,000 inmates immediately eligible for parole, if signed into law.  More than 80% of inmates serving mandatory minimum sentences for drug offenses are either Black or Hispanic, Joseph Krakora, the state’s top public defender, previously said.

Assemblyman John DiMaio, R-Warren, said he recognized the “social injustice issues that would be addressed by this bill,” but added, “I just do not understand where the social justice issue comes in” when removing official misconduct from the list of mandatory minimum sentences.  “Those sections that deal with the public trust, elected officials and public officials should not be in this bill,” he said before Monday’s vote.

However, NJ Together also found that official misconduct charges overwhelming are handed down to Black New Jerseyans.  It found that Black people in New Jersey are three and a half times as likely to spend time in state prison for official misconduct than others, according to an analysis of 36,000 prison records....

A spokesman for Murphy did not immediately respond when asked when the governor may make a decision.

I am instinctually against all (prison-time) manadtory minimums, which fundamentally shift sentencing powers from judges to prosecutors and make sentencing more opaque and often less consistent.  Mandatory minimums seem especially pernicious when applied to non-violent offenses where there can be a broad array of offense conduct and offender circumstances that a judge ought be able to consider in open court (and be subject to appeal).  Against that backdrop, from the get-go I think it is problematic (and telling) that reform-minded officials are so quick to oppose the repeal of the official misconduct NJ mandatory minimums (which seem pretty severe, though do include some waiver opportunities).

Even more important, and kudos for this reporting, racial disparity would seem to be a real concern in the application of this particular mandatory minimum in New Jersey, just as there tends to be disparity in the application of so many other mandatory minimums in so many jurisdictions.  If a primary goal of this whole bill is to reduce racially disparate sentencing laws, then repealing the misconduct minimums seems very much in service to a main goal of this bill.

FInally, and perhaps most important in service to criminal justice reform generally, any vision of the best reforms cannot and should not be the enemy of good reforms.  Today, tomorrow and every day until misguided sentencing laws are reformed and made retroactive, real people and their families are subject to real excessive prison time (and taxpayers are paying the economic and other  costs of excessive and unfair sentences).  If Gov Murphy were to veto this bill, he would be denying immediate relief and hope for more than 2,000 folks now serving problematic sentences in order to .... just preserve prosecutorial sentencing powers that they seem to be using unevenly and that should be in the hands of judges.

Prior related post:

• New Jersey commission releases big report recommending numerous big sentencing reforms

"Prisons are getting Whiter. That’s one way mass incarceration might end."

The title of this post is the headline of this provocative Washington Post commentary authored by Keith Humphreys and Ekow N. Yankah. Here are excerpts:

Research shows that many White Americans see incarceration as a “Black problem,” and the more they see it that way, the less willing they are to do anything about it.  Biden and others might surmount this resistance, however, by highlighting a surprising trend: White Americans have been filling jails and prisons at increasing rates in the 21st century. Reducing incarceration, reformers can credibly argue, will benefit Whites as much as Blacks....

Racial codings of social problems influence public attitudes through two basic processes.  The first is in-group favoritism, which is greater appreciation of and empathy for people we perceive as similar to ourselves.  Such favoritism increases willingness to help a stranger in distress, leave a big tip at a restaurant or grant a promotion at work, among many other kindnesses. In-group favoritism is not limited to race (we can be favorably disposed to someone over something as trivial as sharing a first name or a birthday), and people of all races are prone to it.  But race is clearly one of the many dimensions by which we judge similarity, so that as more White Americans understand that more Whites are behind bars, they may feel increased compassion toward prisoners and voice more support for policies to reduce incarceration.

The other process in play is more disturbing, because it implies an active attempt to harm others.  Sociologists Rachel Wetts and Robb Willer documented that, when told the income gap between White Americans and Black and Latino Americans was shrinking, Whites favored social welfare programs that they believed particularly helped other Whites. But they became less supportive of programs that they thought particularly helped minorities.  Wetts and Willer concluded that perceived threats to the racial hierarchy drive White opposition to helping Black Americans.  The same Whites who recoiled at a Black man rising to the presidency, for example, might oppose prison reforms (shorter sentences, better health care, early release for the sick and elderly) precisely because they believe that the beneficiaries will mainly be Black. Informing such people that prisoners are increasingly White could soften their hostility.

Persuading people to join the fight against mass incarceration because Whites stand to benefit is bound to repulse those already committed to the cause.  But because each state runs its own prison system and sets most criminal penalties, building a nationwide coalition is essential.  That can happen only by shifting the opinion of people who are not moved by — or indeed are even comforted by — the thought of prison populations being mostly Black. And exploding the idea that mass incarceration is only a “Black problem” may allow us to reimagine a broad range of other issues, such as the policing that helps feed it....

In the effort to control Black and Brown people through the criminal justice system, White Americans have shown a stunning willingness to tolerate a huge number of White prisoners as collateral damage.  And once such systems are built, they have a remarkable capacity for self-preservation; jail populations, for instance, have stayed constant even as crime has plummeted.  So we cannot say how well a strategy drawing attention to the Whitening trend will work. In his book “Dying of Whiteness,” physician Jonathan Metzl argues that White people’s racial resentment can lead them to cut off their nose to spite their face — opposing policies that would help them because they would help Black citizens, too. Indeed, numerous economists have concluded that America’s long history of hostility toward Black people has left it the sole advanced economy without some form of universal health care.  If some White Americans are willing to give up health care to keep their place in the racial hierarchy, perhaps they are willing to risk imprisonment as well.  Yet the reversal in rhetoric during the opioid crisis shows that entrenched policies can be changed.

What’s more, in a remarkable moment of convergence, libertarians, religious leaders and racial-justice advocates oppose mass incarceration for separate but overlapping reasons.  Were our country more just and less dismissive of Black pain, growing White incarceration would have no special weight in assessing the moral value of locking up more than 2 million of our fellow citizens.  Opponents of mass incarceration — including Biden — should continue to denounce racism within the criminal justice system.  But the president can also remind Americans that our racial fates are joined: All of us would benefit from the end of mass incarceration.

"Merrick Garland, cannabis policy, and restorative justice"

The title of this post is the title of this notable new commentary from John Hudak over at Brookings FixGov blog.  I recommend the piece in full, and here are excerpts:

Judge Garland recognized two realities about cannabis enforcement — one not new to AG nominees, the other quite new.  First, he noted that non-violent, low-level cannabis enforcement is not an effective use of federal law enforcement resources.  There are plenty of other crimes that the Justice Department should be focused on.  Second, he noted that cannabis law enforcement disproportionately impacts communities of color, and more importantly, that the effects of those arrests impact individuals’ economic potential and livelihoods.

The latter is a stark departure for top-level presidential appointees.  Mr. Garland showed a powerful appreciation that arrests for low-level cannabis crimes (and especially convictions for those crimes) contributes to systemic racism and has not a one-time effect on individuals, but a sustained one.  Mr. Garland’s take on cannabis enforcement is that it is an archetype of institutionalized racism in our system.  It systematically impacts communities of color over the course of lifetimes and contributes to lower wages; reduced wealth accumulation; limited educational and job opportunities; and sustained, multi-generational poverty....

Because so much cannabis enforcement takes place at the state and local level, the Justice Department could engage governors, state attorneys general, chiefs of police and other law enforcement leadership, as well as civil rights and criminal justice reform leaders.  By forming a coalition and group to study cannabis enforcement in the states, the Attorney General can better understand how the Justice Department can create programs, adjust policies, and incentivize better behaviors in the states through funding, funding restrictions, and other policy changes.

The Justice Department could also initiate a public campaign to inform state and local leaders about the social and economic impacts of the enforcement of cannabis crimes, especially those that disproportionately impact specific communities.  The attorney general can work with groups to improve the manner in which law enforcement and state and local leadership address both the way in which cannabis enforcement operates in the future and how to make up for past harms.

And last but not least, the Justice Department could lead the way on restorative justice, primarily through clemency.  However, presidential clemency efforts for cannabis will have limited impact, given how few individuals face such charges at the federal level.  Given this the attorney general can encourage the use of presidential and state-level clemency powers.  He can build on a proposal announced last week from Reps. Earl Blumenauer (D-Ore.) and Barbara Lee (D-Calif.) and supported by many drug reform advocacy organizations such as NORML and others.  That proposal urges President Biden to pardon non-violent cannabis offenders.  That recommendation is an important one that will signal the new president’s views on drug policy and demonstrate a change in his approach to law enforcement policy since the 1990s.  It will also honor his commitment during the Democratic debates that cannabis users should not face jail time.

The attorney general and President Biden should seek to coordinate with like-minded governors of both parties to exercise far-reaching pardon powers to the victims of the War on Drugs.  A Rose Garden ceremony to exercise presidential pardon power, while virtually assembling a bipartisan group of governors doing the same would be a substantively impactful effort that would improve the lives of hundreds of thousands of Americans, far beyond what the president can do alone.

Taking a first step toward restorative justice is important given the racist roots and implementation of the War on Drugs.

Federal defendant in Terry with many notable friends urging broad application of crack retroactivity provision of FIRST STEP Act

As reported in this new Law360 piece, headlined "First Step Act's Authors Tell Justices Courts Are Misreading It," the First Step Act case currently on the  SCOTUS docket, Terry v. United States, No. 20-5904, and generated some notable amicus briefing.  Here are excerpts from this article:

The senators who wrote the First Step Act of 2018 have told the Supreme Court that they did not intend to exclude low-level crack offenders from the law's sentencing relief, contrary to the findings of some circuit courts across the country.

Since President Donald Trump signed it into law, four circuits have agreed with federal prosecutors that the landmark criminal justice reform bill applies only to those serving sentences for large quantities of crack, leaving those in prison for small amounts unable to revisit their sentences. Two other circuits, meanwhile, have reached the opposite conclusion and have extended relief to low-level offenders.  The Supreme Court has agreed to review this circuit split on the retroactivity of the law and is expected to hold oral arguments in April.

Ahead of the hearing, a broad coalition of liberal and conservative groups is supporting petitioner Tarahrick Terry, who is serving a 15-year sentence for possession with intent to distribute 3.9 grams of crack. If allowed to reopen his sentence, Terry could be eligible for immediate release under new sentencing rules.

In addition, the four senators who are largely responsible for the sentencing reforms in the First Step Act have filed an amicus brief in the high court supporting Terry's case. Sens. Richard Durbin, D-Ill., Charles E. Grassley, R-Iowa, Cory Booker, D-N.J., and Mike Lee, R-Utah, told the justices that those provisions were instrumental to the law's passage and that Congress had always meant to extend that relief to those convicted of small quantity offenses.

"The text Congress enacted makes retroactive relief broadly available to all individuals sentenced for crack-cocaine offenses before the Fair Sentencing Act," the senators wrote in a brief filed Friday. "Had Congress intended to exclude individuals with low-level crack offenses from relief, Congress of course could have done so."...

The question at issue in Terry's case is whether low-level crack offenses qualify as covered offenses.  The Eleventh Circuit held that they do not and ruled against Terry, deepening a split among the courts that now makes the availability of sentencing relief under federal law dependent upon which circuit the defendant is located in....

The government has yet to file its opening merits brief in the case, and it is possible that President Joe Biden's acting solicitor general could change the government's position in the case to extend sentencing relief to low-level crack offenses, even if such changes are rare in criminal cases.

Notably, the broad and diverse coalition of amicus briefs filed in support of the petitioner in Terry includes not only a bipartisan group of Senators, but also: a group of former federal judges, prosecutors, and NACDL; a coalition of states and DC; and the ACLU, NAACP and R Street; Americans for Prosperity; the Constitutional Accountability Center; and the Cato Institute, American Conservative Union, Lincoln Network and Rutherford Institute. 

It will be interesting to see if all these "friends" might led the Justice Department to change its ligation approach to these issues under new leadership.  It will also be interesting to see if there are many (or any) outside groups or other voices eager to make the case that the FIRST STEP Act's retroactivity provisions do not extend to low-level crack offenders.

"Black on Black Representation"

The title of this post is the title of this new article authored by Alexis Hoag now availble via SSRN.  Here is its abstract:

When it comes to combatting structural racism, representation matters, and this is true for criminal defense as much as it is for health services, education, and civil legal services.  This Article calls for the expansion of the Sixth Amendment right to counsel of choice to indigent defendants, and argues that such an expansion could be of particular benefit to indigent Black defendants.  Extending choice to all indigent defendants reinforces the principles underlying the Sixth Amendment right to counsel and can help strengthen the attorney-client relationship.  Because an expansion would grant defendants the autonomy to request counsel who they believe would best represent them, Black defendants who prioritize racial congruency and cultural competency may select Black counsel. Empowering indigent Black people to select, should they desire, Black and/or culturally competent public defenders has the potential to offer a range of benefits, including mitigating anti-Black racism in the criminal legal system.

Methodologically, this Article takes multiple approaches.  First, it connects indigent representation to existing literature from other fields — clinical therapy and education — both of which recognize the benefits of racial congruency, to support the argument that Black public defenders may benefit Black clients.  To explore how same-race representation functions in practice, this Article also relies on qualitative interviews with Black public defenders regarding communication and trust; factors that the American Bar Association identifies as integral to criminal defense.  Together, these approaches highlight how expanding choice to indigent defendants might impact Black defendants, something that past choice of counsel literature does not examine.  The Article concludes that recruiting more Black public defenders and training culturally competent lawyers are critical next steps regardless of whether the Court expands the right to counsel of choice to poor people.

Reminder of next week's "Prosecutorial Elections: The New Frontline in Criminal Justice Reform"

I flagged a few weeks ago this great symposium taking place (on Zoom) next Friday, February 19, 2021.  The Ohio State Journal of Criminal Law, together with the Drug Enforcement and Policy Center, has put together a series of terrific panels for this event. Registration for this event is now available at this link, and here is how the event is described and organized:

The Ohio State Journal of Criminal Law, in collaboration with the Drug Enforcement and Policy Center, is pleased to announce our live symposium for Spring 2021, “Prosecutorial Elections: The New Frontline in Criminal Justice Reform.”  This virtual series is aimed at provoking thoughtful and well-rounded discussion surrounding the responsibility of the modern prosecutor in ushering in criminal justice reform and how that responsibility intersects with their role to uphold the law.  The panelists, including both academics and practitioners, will explore these questions from a variety of perspectives.  A schedule for the symposium can be found below.

Schedule:

10:15 a.m.-10:30 a.m.: Opening Remarks and Introduction

10:30 a.m.-12:00 p.m.: Prosecutor 2.0 — How has the job changed since the emergence of the “progressive prosecution” movement and what impact has this had on campaigns?

12:00 p.m.-1:30 p.m.: Lunch break

1:30 p.m.-3:00 p.m.: Prosecutorial Biases as a Catalyst for Systemic Racism — The intersect between prosecutorial discretion, prosecutorial ethics, and racial inequity in criminal justice.

3:30 p.m.-5:00 p.m.:Prosecutorial Discretion and Drug Reform — The role of prosecutors in perpetuating the War on Drugs and the link to mass incarceration.

5:00 p.m.: Closing remarks

A list of the speakers and their biographies can be found here.

New California Committee on the Revision of the Penal Code issues report urging sweeping sentencing reforms

As reported in this local article, headlined "California Commission Recommends Ending Mandatory Minimum Sentences," a notable new government body in the Golden State is recommending an array of notable new sentencing reforms.  Here are the basics:

A newly formed state commission is recommending that California end mandatory minimum sentences for nonviolent crimes and allow judges to reconsider all criminal sentences after someone has spent 15 years in prison.

Those are two of the 10 recommendations laid out in an 89-page report by the Committee on Revision of the Penal Code, which is charged with examining California’s criminal sentencing laws and recommending changes.

Among their findings: That the state’s legal system has racial inequality at its core and that many laws are outdated, unsupported by data and don’t make the public more safe. "We really tried to do a complete survey of punishments in California from driving infractions, all the way to life in prison," said commission Chair Mike Romano, who runs the Three Strikes Clinic at Stanford Law School.

"What we found is that California has an unbelievably bloated criminal legal system and that there are a tremendous number of people who are serving punishments that are unnecessary in terms of enhancing public safety, in fact quite the opposite," he said.

The group heard from a wide range of experts, including every major law enforcement group in the state, current and former prosecutors and judges and state officials. The commission learned that California is spending $83,000 a year to lock up each prisoner, for a total of $16 billion. Yet the report also details evidence that California is enjoying the lowest crime rates since statewide tracking began in 1969, even as the state has enacted laws that reduce the number of people incarcerated.

“Aspects of California’s criminal legal system are undeniably broken," the report states. “The current system has racial inequity at its core," the commission wrote, adding that inequality may be worse than imagined as "people of color are disproportionately punished under state laws.”

The group is made up of legal experts and two state lawmakers. There are 10 recommendations in its inaugural report — all focusing on changes that could be made by the Legislature, without going to voters.

The full report is available at this link, and here is its executive summary:

When the Legislature and Governor Gavin Newsom established the Committee on Revision of the Penal Code, California launched its first concerted effort in decades to thoroughly examine its criminal laws. The Legislature gave the Committee special data-gathering powers, directing it to study all aspects of criminal law and procedure and to make recommendations to “simplify and rationalize” the state’s Penal Code. This is the Committee’s first report, and it details 10 reforms recommended unanimously by Committee members. Our recommendations span California’s entire criminal legal system, ranging from traffic court to parole consideration for people serving life sentences. If enacted, these reforms would impact almost every person involved in California’s criminal system and, we believe, measurably improve safety and justice throughout the state.

Our recommendations follow a year of studying California’s criminal punishments. We were guided by testimony from 56 expert witnesses, extensive public comment, staff research, and over 50 hours of public hearings and Committee deliberation. We believe the recommendations represent broad consensus among a wide array of stakeholders, including law enforcement, crime victims, civil rights leaders, and people directly impacted by the legal system. The report contains extensive support for each recommendation, including empirical research, experiences from other jurisdictions, and available data on California’s current approach to these issues.

The recommendations are: 

1.  Eliminate incarceration and reduce fines and fees for certain traffic offenses.
2.  Require that short prison sentences be served in county jails. 
3.  End mandatory minimum sentences for nonviolent offenses.
4.  Establish that low-value thefts without serious injury or use of a weapon are misdemeanors.
5.  Provide guidance for judges considering sentence enhancements.
6.  Limit gang enhancements to the most dangerous offenses.
7.  Retroactively apply sentence enhancements previously repealed by the Legislature.
8.  Equalize custody credits for people who committed the same offenses, regardless of where or when they are incarcerated.
9.  Clarify parole suitability standards to focus on risk of future violent or serious offenses.
10.  Establish judicial process for “second look” resentencing.

New Urban Institute briefs on improving prison-related research

Via a helpful email, I learned about two recent topical briefs produced by the Urban Institute's relatively new Prison Research and Innovation Initiative.  I believe both of these briefs are part of broader research agenda for the an initiative that seeks to "leverage research and evidence to shine a much-needed light on prison conditions and pilot strategies to promote the well-being of people who live and work behind bars."  Here are the titles, authors, links and abstracts:

"Conducting Prison Research with a Racial-Equity Frame" by Cassandra Ramdath

Abstract: The history of slavery in America shapes the experience of incarceration for Black people and must therefore inform strategies to remediate institutional harms.  This brief sets forth guiding values and recommendations for grounding prison research in principles of racial equity.  These values are intended to help researchers more accurately capture and measure racial biases, and design and conduct research that can elevate and disrupt systemic biases.

"Using Research to Improve Health and Health Care in US Correctional Facilities" by Alexandra Kurland

Abstract: To implement policies and practices that foster positive health outcomes and fulfill the US government’s constitutional obligation to provide adequate health care to people who are incarcerated, researchers and practitioners must understand their health needs and the nature and quality of the care they receive.  This brief provides an overview of what is known about health and health care in correctional settings and what must be investigated to improve treatment and health outcomes in correctional settings.

The Sentencing Project releases new report documenting "Racial Disparities in Youth Incarceration Persist"

Josh Rovner has authored this new report for The Sentencing Project titled " "Racial Disparities in Youth Incarceration Persist." Here is its executive summary:

In an era of declining youth incarceration, Black and American Indian youth are still overwhelmingly more likely to be held in custody than their white peers.

In ten years, the United States has cut youth incarceration in half. While the reduction is impressive, youth involvement in the juvenile justice system continues to impact youth of color disproportionately.

In every state, Black youth are more likely to be incarcerated than their white peers, about five times as likely nationwide. American Indian youth are three times as likely to be incarcerated as their white peers. For Latinx youth disparities are smaller but still prevalent; Latinx youth are 42 percent more likely than their white peers to be incarcerated.

Nationally, disparities are essentially unchanged from 10 years’ prior for Black and American Indian youth, but represent a 21 percent decrease in incarceration disparities for Latinx youth. In state rankings, New Jersey warrants special mention due to its number one and number three status for highest Black-white and Latinx-white disparities in youth incarceration, respectively.

These disparities are not only caused by differences in offending but also by harsher enforcement and punishment of youth of color.  White youth are less likely to be arrested than other teenagers, which is partly attributable to unequal policing and partly to differential involvement in crime.

After arrest, youth of color are more likely to be detained pre-adjudication and committed post adjudication.  They are also less likely to be diverted from the system.  These patterns hold across a range of offenses.

Advancement of racial justice priorities with youth decarceration efforts has proven elusive.  More steps must be taken to invest in youth and communities in order to prevent crime and to protect youth from overly punitive system responses to misbehavior.

Recommendations

1. Racial impact statements

States and localities should require the use of racial impact statements to educate policymakers about how changes in sentencing or law enforcement policies and practices might impact racial and ethnic disparities in the justice system.

2. Publish demographic data quarterly

States and counties should publish demographic data quarterly on the number of incarcerated or justice-system involved youth, including race and ethnicity. The federal government should disseminate this information nationwide.

3. Invest in communities

States and localities must invest in communities to strengthen public infrastructures, such as schools and medical and mental health services, with particular focus on accommodating the needs of children of color.

"Prosecutorial Elections: The New Frontline in Criminal Justice Reform"

The title of this post is the title of this great symposium taking place (on Zoom) on February 19, 2021.  The Ohio State Journal of Criminal Law, together with the Drug Enforcement and Policy Center, has put together a series of terrific panels for this event.  This link provides a registration form, and here is schedule for the symposium:

10:30 a.m.-12:00 p.m.: Prosecutor 2.0 — How has the job changed since the emergence of the “progressive prosecution” movement and what impact has this had on campaigns?

• Moderated by:
  • Ric Simmons, Chief Justice Thomas J. Moyer Professor for the Administration of Justice and Rule of Law at The Ohio State University Moritz College of Law
• Panelists:
  • Maybell Romero, Associate Professor of Law at Northern Illinois University College of Law
  • Ronald Wright, Associate Dean for Research and Academic Programs and Needham Yancey Gulley Professor of Criminal Law at Wake Forest University School of Law
  • Carissa Byrne Hessick, Anne Shea Ransdell and William Garland “Buck” Ransdell, Jr. Distinguished Professor of Law at the University of North Carolina School of Law
  • Miriam Krinsky, Executive Director of Fair and Just Prosecution

1:30 p.m.-3:00 p.m.: Prosecutorial Biases as a Catalyst for Systemic Racism — The intersect between prosecutorial discretion, prosecutorial ethics, and racial inequity in criminal justice.

• Moderated by:
  • Amna Akbar, Associate Professor of Law at The Ohio State University Moritz College of Law
• Panelists:
  • Angela J. Davis, Distinguished Professor of Law at American University Washington College of Law
  • Tamara Lawson, Dean and Professor of Law at St. Thomas University School of Law
  • Roger A. Fairfax, Jr., Patricia Roberts Harris Research Professor of Law and Founding Director of the Criminal Law and Policy Initiative at The George Washington University Law School
  • Olwyn Conway, Assistant Clinical Professor of Law at The Ohio State University Moritz College of Law

3:30 p.m.-5:00 p.m.: Prosecutorial Discretion and Drug Reform — The role of prosecutors in perpetuating the War on Drugs and the link to mass incarceration.

• Moderated by:
  • Douglas A. Berman, Newton D. Baker-Baker & Hostetler Chair in Law and Executive Director of the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law
• Panelists:
  • Marilyn J. Mosby, Baltimore City State’s Attorney
  • Kay L. Levine, Professor of Law at Emory University School of Law
  • Alex Kreit, Director of the Center for Addiction Law & Policy and Assistant Professor of Law at Northern Kentucky University Chase College of Law

Remembering and honoring the (always timely) poignancy of the great words of Dr. Martin Luther King

I sincerely adore MLK day, not only because I have a long tradition of always making time to listen to the full "I Have A Dream" speech by Dr. King, but also because in recent years I have used the day to explore Stanford University's awesome collection of MLK Papers.  In previous years (in posts linked below), I have quoted from various renown speeches and writings with an emphasis on the intersection of the civil rights movement and criminal justice reform.  This year, I was especially struck by some passages in Dr. King's Address at Freedom Riders Rally at First Baptist Church in Montgomery, Alabama on May 21, 1961. All five pages of the speech are worth a read, and here are a few excerpts of particular note at this moment:

Through our scientific and technological developments we have lifted our heads to the skys and yet our feet are still firmly planted in the muck of barbarism and racial hatred. Indeed this is America's chief moral dilemma.  And unless the Nation grapples with this dilemma forthrightly and firmly, she will be relegated to a second rate power in the world. The price that America must pay for the continued oppression of the Negro is the price of its own destruction.  America's greatest defense against communism is to take the offense for justice, freedom, and human dignity....

Over the past few days Alabama has been the scene of a literal reign of terror....  Now who is responsible for this dark night of terror in Alabama?  Certainly the mob itself must be condemned.  When people sink to such a low level of hatred and evil that they will beat unmercifully non-violent men and women, they should be apprehended and prosecuted on the basis of the crime they have committed.  But the ultimate responsibility for the hideous action in Alabama last week must be placed at the doorsteps of the Governor of this State.  His consistent preaching of defiance of the law, his public pronouncements, and his irresponsible actions created the vitriolic atmosphere in which violence could thrive.  When the governor of a state will urge people to defy the Law of the Land, and teach them to disrespect the Supreme Court, he is consciously and unconsciously aiding and abetting the forces of violence....

So in the days ahead lot us not sink into the quicksands of violence; rather let us stand on the high ground of love and non-injury.  Let us continue to be strong spiritual anvils that will wear out many a physical hammer.

I love this closing sentiment, the call to "stand on the high ground of love" and the imagery of "strong spiritual anvils" able to wear out the repeated blows of many others.  And though much more could be said about this speech and so many others by MLK, I will close this post by just renewing at a moment of political transition the question that I raised two years ago on this day right after the enactment of the FIRST STEP Act: "What might Martin Luther King seek as the next step in federal criminal justice reform?". 

Links to some prior MLK Day posts:

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

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

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

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

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

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

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