Sentencing Law and Policy

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

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

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

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

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

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

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

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

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

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

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

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

A couple of notable new sentencing articles from JCLC Online

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

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

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

"The 'New' Drug War"

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

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

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

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

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

Highlighting new research with encouraging news about incarceration trends

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Based on state's new Racial Justice Act, state judge throws out gang enhancements after finding “significant statistical disparity”

This local article, headlined "Judge finds Contra Costa DA’s filing practices are racist, dismisses gang charges in murder case," reports on an interesting new ruling from a California state judge relying on an interesting new California law. Here are some details:

In an unprecedented ruling statewide, a Contra Costa judge on Friday dismissed gang charges against four men under the California Racial Justice Act, ruling that county prosecutors have disproportionately targeted Black people with sentencing enhancements that open the door for life in prison without parole.

It is a case already under heavy scrutiny because two of the defendants were directly referenced in racist text messages sent by Antioch police officers who investigated their alleged crimes. The texts — part of a much larger scandal involving racism, alleged civil rights violations and dozens of impugned officers — made light of injuring the men during their arrests and referred to Black people in explicitly biased, hateful ways.

Contra Costa Judge David Goldstein’s Friday ruling did not take into consideration any of the racist texts. Rather, Goldstein based it on a decade of data — what he called a “significant statistical disparity” — showing that gang charges are more often filed against Black people. The stunning development clears the way for any Black person who has faced or is facing those charges in Contra Costa over the past decade to challenge them in court....

In making his decision Friday, Goldstein relied on data that both prosecutors and defense attorneys largely agreed upon that showed that Black people were from 6 to 8 percent more likely to be charged with “special circumstance gang enhancements” than people who weren’t Black.  Those enhancements, alleging gang membership and added on top of the underlying criminal charges at issue in a case, can greatly increase the sentence a defendant receives.

Goldstein threw out the gang enhancements against four East Bay men — Eric Windom, Terryon Pugh, Keyshawn McGee and Trent Allen — who are accused of fatally shooting a man to benefit an Oakland gang.  His ruling does not affect the murder, attempted murder and conspiracy counts against them.

Friday marks the second time that prosecutors in Contra Costa have made California history for violating the Racial Justice Act.  Last October, Judge Clare Maier ruled that a county prosecutor used “racially coded language” that “evoked racial stereotypes of African American men” during a two-defendant murder trial and threw out murder convictions for both men.

Maier’s ruling dealt specifically with a portion of the act that refers to the prosecution’s statements during trial, while Goldstein’s ruling cited a different subsection that covers the charging practices of an entire DA’s office.

Evan Kuluk, a lawyer with the county’s Alternate Defender’s Office and an attorney in both cases, told this news organization that “the impact of today’s ruling is an acknowledgement that racial bias infects every stage of the criminal legal process.”

Goldstein’s ruling calls into question dozens of other similar cases filed in Contra Costa, going back 10 years. Contra Costa DA Diana Becton — the first Black person and first woman ever to serve in that role in the county’s 173-year history — says her office now plans to look back at some of those cases with this new ruling in mind....

For many defense attorneys in Contra Costa, Friday’s ruling was a seen as vindication after years of calling on Contra Costa prosecutors to audit their own filing decisions.  In 2019, Becton partnered with the Vera Institute for a project intended to identify implicit bias in the way cases are prosecuted but has yet to release the underlying data.  Chief Public Defender Ellen McDonnell said Goldstein’s ruling “drives home the unfair charging practices that too often result from the role of implicit bias in our legal system.”

Notable sentencing research in recent special issue of "Law and Human Behavior"

I just tripped across the February 2023 issue of the journal "Law and Human Behavior," which is labeled as "Special Issue: Racial Justice in the Criminal Justice and Legal Systems."  This issue has lots of notable research, and sentencing fans might be especially interested in these pieces:

"The trial tax and the intersection of race/ethnicity, gender, and age in criminal court sentencing" by Peter S. Lehmann

"The eye of the beholder: Increased likelihood of prison sentences for people perceived to have Hispanic ethnicity" by Erik Girvan and Heather Marek

"Does 'Jamal' Receive a Harsher Sentence Than 'James'? First-Name Bias in the Criminal Sentencing of Black Men" by Dushiyanthini (Toni) Kenthirarajah, Nicholas P. Camp, Gregory M. Walton, Aaron C. Kay and Geoffrey L. Cohen

"Gender, Violence, and the Death Penalty"

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

This article undertakes the first and only comprehensive analysis of gender-based violence (“GBV”) in the lives of all women currently on death row.  We examine the prevalence of GBV and how it has shaped the lives and affected the criminal prosecutions of women facing execution.  Our research reveals, for the first time, that almost every woman on death row in the United States has experienced GBV and that the great majority have experienced multiple incidents of GBV.

Further, our research shows that both in the United States and around the world, defense attorneys frequently fail to present evidence of GBV in women’s capital trials.  When they do introduce such evidence, they fail to fully explain the nature of their clients’ victimization and the harm they have suffered as a result.  Moreover, we show that prosecutors frequently rely on gendered tropes to discredit women’s accounts of violence such as childhood sexual abuse, rape, and intimate partner violence.  Consequently, those who sentence women to die rarely comprehend the extensive trauma that the women have endured throughout their lives, and how that trauma relates to their legal and moral culpability.

New analysis of original dataset concludes "COVID-19 amplified racial disparities in the US criminal legal system"

The journal Nature today released here a new study by multiple authors titled "COVID-19 amplified racial disparities in the US criminal legal system."  Here is the empirical paper's abstract:

The criminal legal system in the USA drives an incarceration rate that is the highest on the planet, with disparities by class and race among its signature features.  During the first year of the coronavirus disease 2019 (COVID-19) pandemic, the number of incarcerated people in the USA decreased by at least 17% — the largest, fastest reduction in prison population in American history.  Here we ask how this reduction influenced the racial composition of US prisons and consider possible mechanisms for these dynamics.  Using an original dataset curated from public sources on prison demographics across all 50 states and the District of Columbia, we show that incarcerated white people benefited disproportionately from the decrease in the US prison population and that the fraction of incarcerated Black and Latino people sharply increased.  This pattern of increased racial disparity exists across prison systems in nearly every state and reverses a decade-long trend before 2020 and the onset of COVID-19, when the proportion of incarcerated white people was increasing amid declining numbers of incarcerated Black people.  Although a variety of factors underlie these trends, we find that racial inequities in average sentence length are a major contributor.  Ultimately, this study reveals how disruptions caused by COVID-19 exacerbated racial inequalities in the criminal legal system, and highlights key forces that sustain mass incarceration.  To advance opportunities for data-driven social science, we publicly released the data associated with this study at Zenodo.

LawProf Jessica Eaglin has this companion piece in Nature describing the study.  The full title of the companion piece highlights the themes: "COVID pandemic increased racial disparities in US prison populations.  A public data set on the size and racial composition of US prison populations has been generated.  Its analysis indicates how biases in sentencing lengths shape prisons’ racial make-up in the United States."

"Racial Bias, Accomplice Liability, and the Felony Murder Rule: A National Empirical Study"

The title of this post is the title of this new paper authored by G. Ben Cohen, Justin Levinson and Koichi Hioki now available via SSRN. Here is its abstract:

Inside the fraught history of American homicide law sit two long-criticized doctrines, felony murder and accomplice liability.  Though each of these rules have separately faced intense criticism for their resistance to the supposedly foundational principles of moral culpability and individual responsibility, their legacy must also be defined by the way they function symbiotically and specifically to heighten racialized punishment.  This Article addresses the weighty combined reach of the accomplice liability and felony murder doctrines and proposes that racial bias has fueled the operation and survival of the rules.  Specifically, it suggests that implicit racial bias has led to the automatic individuation of white men who are involved in group crimes, while at the same time created automatic de-individuation for Black and Latino men in similar situations, rendering these two doctrines complicit in state sanctioned racialization.

While legislative and judicial power exist to constrain regimes that unfairly expand criminal liability while ignoring criminal responsibility, the Article argues that the phenomenon of white individualization sustains these doctrines when they would otherwise have been discarded.  A national empirical study the authors conducted supports the claim of racialized group liability in the felony murder rule, demonstrating that Americans automatically individualize white men, yet automatically perceive Black and Latino men as group members. In addition to this core finding, the study also found that mock jurors disproportionately penalized men with Latino-sounding names compared to men with white or Black-sounding names, ascribing to them the highest levels of intentionality and criminal responsibility in a group robbery and ensuing homicide.  Contextualized within the troubled history of the felony murder and accomplice liability rules, the Article concludes by calling for the abandonment of the felony-murder doctrine in group liability situations.

"Judicial Scarring"

The title of this post is the title of this new empirical paper authored by Karthik Srinivasan available via SSRN.  Here is its abstract:

I document that experienced decision makers can be influenced by irrelevant events in a high stakes setting, felony sentencing in Cook County.  Using a stacked difference-in-differences design, I estimate that judges hand down sentences that are 13% longer after sentencing a first degree murder.  The effect is twice as large for defendants who resemble the murderer along the dimensions of race and charge severity.  The bias affects 6% of defendants on an ongoing basis and temporarily increases the Black sentencing penalty by 91%.

"Proving Actionable Racial Disparity Under the California Racial Justice Act"

The title of this post is the title of this new article authroed by Colleen V. Chien, W. David Ball and William A. Sundstrom now available via SSRN. Here is its abstract:

Racial disparity is a fact of the US criminal justice system, but under the U.S. Supreme Court’s holding in McCleskey v. Kemp, racial disparities — even sizable, statistically significant disparities — do not establish an Equal Protection violation without a showing of “purposeful discrimination.”  The California Racial Justice Act (CRJA), enacted in 2020 and further amended in 2022, introduced a first-of-its kind test for actionable racial disparity even in the absence of a showing of intent, allowing for relief when the “totality of the evidence demonstrates a significant difference” in charging, conviction, or sentencing across racial groups when compared to those who are “similarly situated” and who have engaged in “similar conduct.”

Though the CRJA was enacted over two years ago, two obstacles have made its promised remedies exist largely on paper — confusion about how to apply its new test and a lack of access to the data needed to demonstrate a significant difference.  This article overcomes these obstacles by exploring and interpreting the significant difference test and by analyzing a database of disparities that enables controls for criminal history and geography (similarly situated) and overlapping elements (similar conduct) based on comprehensive data from the California Department of Justice.  We also present two case studies that demonstrate how defendants might establish an initial showing of significant difference sufficient to successfully move for discovery.

"After McCleskey"

The title of this post is the title of this recent paper authored by Robert Tsai recently posted to SSRN. Here is its abstract:

In the 1987 decision, McCleskey v. Kemp, the Supreme Court rejected a black death row inmate’s argument that significant racial disparities in the administration of Georgia’s capital punishment laws violated the Fourteenth Amendment’s Equal Protection Clause.  In brushing aside the most sophisticated empirical study of a state’s capital practices to date, that ruling seemingly slammed the door on structural inequality claims against the criminal justice system.  Most accounts of the case end after noting the ruling’s incompatibility with more robust theories of equality and meditating on the deep sense of demoralization felt by social justice advocates.  One might be forgiven for assuming that defense lawyers abandoned structural inequality claims and the use of quantitative evidence in capital cases altogether.

But that would be wrong and incomplete.  For the first time, this Article recounts an unusual chapter of the fallout from the McCleskey litigation, focusing on the litigation and social activism in the wake of that decision.  It draws on interviews with anti-death penalty lawyers working for or allied with the Southern Center for Human Rights in Georgia, including Stephen Bright, Ruth Friedman, Bryan Stevenson, and Clive Stafford Smith.  It is also based on archival research into their case files.  Drawing from these resources, this Article shows how a subset of cause lawyers in the late 1980’s and early 90’s had a remarkable reaction to that demoralizing ruling: they engaged in a distinctive form of “rebellious localism.”  Instead of forsaking structural equality claims, they doubled down on them.  Rather than make peace with what they believed to be an unjust ruling, they sought to subvert it.  They also scrambled to formulate reliable quantitative evidence of intentional discrimination.  Instead of accepting existing racial disparities in the criminal justice system, they went after prosecutors and state court judges to expose how racial minorities and poor people wound up on death row more often than their white, wealthier counterparts.

Understanding this untold episode of legal history teaches us about the limits of judicial control over constitutional lawmaking, the unanticipated consequences of trying to insulate the legal order from accountability, and the possibilities for keeping clients alive and earning pro-equality victories when political conditions are inhospitable.  For those who pay attention, there are lessons that might humble the most ideologically committed judges and inspire reformers who confront challenging legal circumstances.

New Prison Policy Initiative briefing covers "Racial disparities in diversion: A research roundup"

I received word via email of this new Prison Policy Initiative briefing titled "Racial disparities in diversion: A research roundup."  Here is how it starts (with links from the original):

As the costs and impacts of mass incarceration continue to grow, along with increased public outrage on the issue, counties and municipalities are adopting a wide range of programs that divert people out of the criminal legal system before they can be convicted or incarcerated. Diversion programs exist to move people away from overburdened court dockets and overcrowded jails, while offering to connect them with treatment, and saving money in the process. This practice sounds like a win-win for communities — and it’s successful by many metrics — but as we explain in our 2021 report about diversion programs, their design and implementation greatly impact the outcomes for defendants. That report focuses on the stage of the criminal legal process at which diversion occurs, with the earliest diversions (i.e., pre-arrest) offering the most benefits.

This briefing builds on our previous work by examining how — like every other part of the criminal legal system — diversion programs are often structured in ways that perpetuate racial disparities. Here, we review key studies showing how people of color who are facing criminal legal system involvement are systematically denied or excluded from diversion opportunities. This inequity has a ripple effect, contributing to the troubling racial disparities we see elsewhere, in pretrial detention, sentencing, and post-release issues like homelessness and unemployment. We conclude that policymakers and practitioners involved in diversion programming must address the cost, eligibility requirements, and discretionary decision-making to offer these vital opportunities in a racially equitable way.

Please note that because existing research is largely centered around prosecutor-led diversion programs, this briefing and its recommendations are, too. Prosecutors hold immense power in their decisions to file or dismiss charges, release pretrial defendants, and recommend sentences; in this way prosecutors are arbiters of racial fairness in the criminal legal system, in part through diversion.

ABA Criminal Justice Section releases "2023 Plea Bargain Task Force Report"

American Bar Association's Criminal Justice Section Plea Bargaining Task Force today released this 40-page report. The report's introduction provides some background and details concerning its work:

The Plea Bargain Task Force formed in 2019 to address persistent criticisms of the plea bargain system in the United States. Plea bargaining has become the primary way to resolve criminal cases. Indeed, some jurisdictions have not had a criminal trial in many years, resolving all their cases through negotiated resolutions.  For this reason, a critical examination of the modern plea system is necessary and important.

This Report comes after three years of work, during which the Task Force collected and reviewed testimony from experts in the field and those impacted by the plea system, scholarly and legal reports on plea bargaining, state and federal rules of criminal procedure, and other materials. What has become clear from this process is that plea bargaining is not one monolithic practice. It looks different depending on whether one is in state or federal court, a rural jurisdiction with few lawyers or an urban center with large prosecution and public defender offices.  Even within the same courthouse, informal practices may differ between courtrooms and attorneys.  Although these variations pose a challenge for the development of any one-size-fits-all set of recommendations to reform plea bargaining practices, this Report identifies and addresses numerous concerns with plea bargaining that are common to a wide variety of jurisdictions.  The Report then provides guidance to jurisdictions on how to meet those challenges while also promoting justice, transparency, and fairness.

There are many purported benefits of plea bargaining in the current criminal justice system.  Nearly all jurisdictions have limited resources and plea bargaining provides a mechanism to efficiently resolve cases. By preserving resources this way, jurisdictions are able to direct greater resources to investigations and cases that proceed to trial. Additionally, plea bargaining provides a mechanism to incentivize defendants to cooperate with the government or to accept responsibility for their criminal conduct.  A plea also provides a clear and certain resolution to a case, which offers finality for the defendant, the victim, the courts, and the community. Furthermore, defendants use the plea process to avoid some of the most severe aspects of the criminal system.

In moderation, many of these benefits make sense. But as the Task Force discovered, too often these benefits have become the driving force of criminal adjudication at the cost of more fundamental values. For instance, according to the testimony the Task Force collected, at times, efficiency and finality trump truth-seeking. Furthermore, many benefits of plea bargaining are, when viewed in a different light, a means to mitigate the excessive harshness of the modern American criminal system. In this sense, plea bargaining is not so much providing a benefit as it is a safety valve for quotidian injustice.

Moreover, the Task Force reviewed substantial evidence that defendants—including innocent defendants — are sometimes coerced into taking pleas and surrendering their right to trial.   This happens for a number of reasons. For instance, mandatory sentencing laws often make the risks of taking a case to trial intolerable, and in some cases, prosecutors understand and exploit these fears to induce defendants to plead guilty in cases where they otherwise would prefer to exercise their constitutional right to have the case decided by a jury.  Similarly, mandatory collateral consequences, including the threat of deportation, push defendants to accept pleas in cases they might otherwise fight at trial.

The Task Force also discovered that the integrity of the criminal system is negatively affected by the sheer number of cases resolved by pleas. For example, police and government misconduct often goes unchecked because so few defendants proceed to pre-trial hearings where such misconduct is litigated.  The reality that so few pretrial matters are litigated leads prosecutors to be less critical of their witnesses and less willing to scrutinize the strength of their cases, knowing that they won’t be held accountable at trial. Defense lawyers, similarly, are less likely to properly investigate cases, knowing their clients will almost certainly  take a plea. Plea bargaining creates perverse incentives across the system for lawyers and judges who focus on disposition rates and getting through cases quickly rather than resolving cases justly. Furthermore, the loss of trials in favor of plea bargains is a profound loss for civic engagement. Jury trials provide critical oversight to the criminal system, and juries remain one of the only ways for citizens to shape how prosecutors enforce laws. The voice of the community is almost entirely lost in a system dominated by pleas.

More troubling still, the Task Force heard many ways in which plea bargaining promotes and exacerbates existing racial inequality in the criminal system. The Task Force collected testimony from experts in the field who demonstrated that throughout the plea process similarly situated defendants of color fare worse than white defendants. Black defendants in drug cases, for instance, are less likely to receive favorable plea offers that avoid mandatory minimum sentences and, as a result, receive higher sentences for the same charges as white defendants. The same is true for gun cases, in which Black defendants are more often subjected to charge stacking — a technique that allows prosecutors to pile on many charges, increasing the likely sentence after trial and the government’s leverage during plea negotiations – than white defendants.  In fact, across all charges the Task Force found evidence of significant racial disparities in prosecutorial decisions to drop or reduce charges.  For example, white defendants who face initial felony charges are less likely than Black defendants to be convicted of a felony, and white defendants facing misdemeanor charges are more likely than Black defendants to have their cases dismissed or resolved without incarceration.

After this introduction, this report sets forth fourteen principles that inform and structure the rest of the report.  Readers are encouraged to click through to see all the details, though here is the intro to the statement of principles:

While the plea bargaining process in the United States is broad and varied, the Task Force determined that it was vitally important to craft a single set of principles to guide plea practices generally. Those principles, which guide the Report’s more specific observations and recommendations, are listed below. These principles should be shared widely with members of the criminal justice community so that they might influence behavior and decision-making moving forward. These principles represent our conclusions about how plea bargaining should operate within our larger criminal justice system, a system based on the fundamental Constitutional right to trial.

Renewed bipartisan effort to end the federal crack/powder sentencing disparity via the EQUAL Act

During the last Congress, I became way too optimistic about the prospect of passage of the EQUAL Act to entirely eliminate the federal crack and powder cocaine sentencing disparity. But after the US House voted overwhelmingly, 361-66, to pass the EQUAL Act and after the Senate version secured 11 GOP sponsors, I really thought nearly four decades of a misguided sentencing structure could be coming to an end.  But, as detailed in posts here and here from the first half of 2022, opposition from some key Republican Senators prevented the bill from getting to the desk of President Biden. 

I am now inclined to be much less optimistic about the EQUAL Act's chance in the new Congress.  But I am still pleased to see bipartisan efforts continuing, as evidenced by this new press release from Senator Cory Booker.  Here are some details:

Today, U.S. Senators Cory Booker (D-NJ), chair of the Senate Judiciary Subcommittee on Criminal Justice and Counterterrorism, and Dick Durbin (D-IL), chair of the Senate Judiciary Committee, along with Representatives Kelly Armstrong (R-ND) and Hakeem Jeffries (D-NY), the House Democratic Leader, announced the reintroduction of the bipartisan Eliminating a Quantifiably Unjust Application of the Law (EQUAL) Act, legislation to eliminate the federal crack and powder cocaine sentencing disparity and apply it retroactively to those already convicted or sentenced. 

Joining Booker and Durbin as original cosponsors on the EQUAL Act in the Senate are Senators Lindsey Graham (R-SC), the ranking member of the Senate Judiciary Committee, Thom Tillis (R-NC), Chris Coons (D-DE), Cynthia Lummis (R-WY), and Rand Paul (R-KY).  Joining Armstrong (R-ND) and Jeffries (D-NY) as original cosponsors on the EQUAL Act in the House are Representatives Don Bacon (R-NE) and Bobby Scott (D-VA).

The sentencing disparity between crack and powdered cocaine, at one point as high as 100 to 1, helped fuel the mass incarceration epidemic.  According to the U.S. Sentencing Commission, in Fiscal Year 2021, 77.6% of crack cocaine trafficking offenders were Black, whereas most powder cocaine trafficking offenders were either white or Hispanic....

"Eliminating the crack-powder cocaine sentencing disparity is a step toward applying equal justice under the law,” said Representative Armstrong. “The EQUAL Act is sound, bipartisan criminal justice reform, that received overwhelming support in the House last Congress. It’s long overdue that we pass this bill and finally end the disparity to make a real difference for families across the nation.”...

Background

After the passage of the Anti-Drug Abuse Act of 1986, sentencing for crack and powder cocaine offenses differed vastly.  For instance, until 2010, someone convicted of distributing 5 grams of crack cocaine served the same 5-year mandatory minimum prison sentence as someone convicted of distributing 500 grams of powder cocaine.  Over the years, this 100:1 sentencing disparity has been widely criticized as lacking scientific justification. Furthermore, the crack and powder cocaine sentencing disparity has disproportionately impacted people of color. 

The Fair Sentencing Act, introduced by Senator Durbin, passed in 2010 during the Obama administration and reduced the crack and powder cocaine sentencing disparity from 100:1 to 18:1.  In 2018, Senators Booker and Durbin and Representative Jeffries were instrumental in crafting the First Step Act, which made the Fair Sentencing Act retroactive. 

Booker, Durbin, Armstrong, and Jeffries first introduced the EQUAL Act to eliminate the disparity once and for all in 2021.  In September 2021, the legislation passed the House with a wide bipartisan margin, 361-66.  In the Senate, the legislation ultimately attracted 11 Republican and 24 Democratic cosponsors.

The full text of the legislation can be viewed here.

A few of many prior posts on the EQUAL Act:

• GOP Gov and former DEA chief calls for Congress to "finally and fully end the disparity between crack and cocaine offenses" 
• US House votes 361-66 to pass today the EQUAL Act to end disparity between powder and crack cocaine sentences
• Is it foolish to hope, after now 35 years, that Congress will soon fix the crack-powder federal sentencing disparity? 
• Why is getting the EQUAL Act through the US Senate proving so challenging? 
• GOP Senators introduce competing crack/powder sentencing reform bill tougher than EQUAL Act
• Discouraging report on a possible last gasp for this Congress to pass the EQUAL Act 
• New year and new Congress brings a new effort to advance new EQUAL Act 

For those concerned about over-criminalization, the "Case for Legalizing Jaywalking"

I was not aware of the history of the term jaywalking or of the laws criminalizing this behavior.  Thus, I found interesting this new Mother Jones piece fully headlined "The Case for Legalizing Jaywalking: Bans hurt poor people and people of color.  Cities and states are catching on."  I recommend the full piece, but here is a snippet (with links from the original):

If you regularly walk in any American city, you, too, probably have crossed a street against the signal or outside of a designated crosswalk.  Sure, one could argue that crosswalks were created as a way to protect pedestrians from potentially dangerous automobiles.  But why would transgressing those limits become a petty crime?  Thanks to a century-old automobile industry campaign to push pedestrians out of the streets, jaywalking is now, in most places, punishable by a hefty ticket ranging from $68 in Seattle to as much as $250 in New York City.

This could be consigned to the realm of being merely annoying, but in fact, there’s a serious injustice embedded in the process.  According to research in several cities, policing pedestrian behavior disproportionately affects low-income people and people of color.  Plus, making jaywalking an offense doesn’t keep people safe.  Now, a growing number of cities and states are striking these antiquated statutes from their books....

[D]ata from cities across the country show that Black people are routinely cited for jaywalking at higher rates than white people, making their simple act of crossing the street grounds for potentially dangerous police interactions.  In 2017, a sweeping investigation by ProPublica and the Florida Times-Union (republished with permission on Mother Jones) found that Black people received 55 percent of pedestrian tickets in Jacksonville, despite comprising just 29 percent of the city’s population.  Those tickets were also overwhelmingly focused on residents of poor neighborhoods.

The Jacksonville sheriff’s office admitted that enforcement of rules against crossing on a yellow light, crossing outside the crosswalk, or “failing to cross a street at a right angle” were often an excuse to “stop suspicious people and question them for guns and or drugs.”  Critics of jaywalking laws say that that’s part of the problem. 

Though not mentioned in this piece, I could not help but keep thinking of the emerging debate in Second Amendment jurisprudence related to government claims that "nonlawabiding" people are to be excluded from the protections of the Second Amendment.  I doubt many folks would really think the "crime" of jaywalking should lead to losing some protections of the Bill of Rights, but even that possibility is why concerns regarding over-criminalization can often connect to other kinds of concerns about state power and individual rights.

Some early commentary on notable end-of-year federal criminal justice reform developments

I hope and expect that the new charging and sentencing memos issued by AG Garland (basics here), as well as the failure of the out-going Congress to pass any significant criminal justice reforms, will garner extended attention and analysis in the weeks and months ahead.  Usefully, I have already seen some first-cut accountings from a variety of sources:

From Filter, "The Limits of AG’s Guidelines Against Crack-Powder Sentencing Disparity"

From LISA-Legalinfo, "Blue Christmas for Criminal Justice Reforms"

From MSNBC, "Racist war on drugs is the real winner of Congress’s massive spending bill"

From Reason, "The Failure To Enact Marijuana Banking and Crack Sentencing Reforms Is a Window on Congressional Dysfunction"

From San Diego Union-Tribune, "Creating different punishments for crack and powder cocaine never made sense, unscientific"

Looking forward, the practical impact of AG Garland's charging and sentencing memos, the continued implementation of the FIRST STEP Act, and especially the coming work of the newly, fully-staffed U.S. Sentencing Commission will be topics to watch closely in the weeks and months ahead.  So, I am tentatively hopeful that the lack of much lasting federal criminal justice reform in 2022 is just a precursor to a big 2023 ahead.

"Felony Sentencing in New York City: Mandatory Minimums, Mass Incarceration, and Race"

The title of this post is the title of this new report from the Center for Court Innovation authored by Fred Butcher, Amanda B. Cissner, and Michael Rempel.   The full report runs over 30 pages, but this CCI webpage provides this two-page summary which includes this brief accouting of the report's findings:

Of the more than 65,000 such arrests in 2019, we found a third of people arrested were potentially subject to a mandatory minimum.  That doesn’t mean everyone ultimately received a minimum prison sentence, but the wide eligibility confers outsized power on prosecutors; in plea negotiations, prosecutors can wield the threat of a higher charge with guaranteed, generally lengthy, prison time against someone hesitant to accept a plea.

Arrests, and with them exposure to charges eligible for a mandatory minimum, are the formal entry-point to the criminal legal system.  Our analysis found Black people accounted for 51% of people arrested on a felony in New York City in 2019, more than double their representation in the general population; for white people, the figure was 11%. For arrests with exposure to a mandatory minimum, the disparity was even more striking: Black and Hispanic/Latinx New Yorkers combined to make up 91% of such arrests; for white people, the proportion was only 7%.

Looking at the subgroup of those convicted of a felony, Black people were also more likely to suffer imprisonment and almost six of ten convictions carrying a mandatory minimum sentence went to a Black person.

Indeed, while race was a significant predictor of whether someone convicted of a felony received a prison sentence — 58% of Black versus 43% of white people — an even stronger predictor was a prior felony conviction. Here the overlap — or, for people of color, doublebind — is considerable.  Systemic issues such as underinvestment paired with over-policing of Black and Brown communities increase the likelihood that members of these communities will acquire the kind of criminal history that can trigger, not only a sentence of incarceration, but also exposure to a mandatory minimum (whether actualized or used against them to leverage a less favorable plea).

US Attorney General Garland releases new federal charging guidelines that include instructions to treat crack like powder cocaine

I thought the increasing prospects for statutory sentencing reforms from Congress might be the big federal sentencing news of this week, but this new Washington Post piece suggests that even bigger news is coming from the Department of Justice.   Here are the (incomplete) details from the first press piece:

Attorney General Merrick Garland on Friday instructed federal prosecutors to end sentencing disparities in cases involving the distribution of crack and powder cocaine after decades of law enforcement policy disproportionately treating crack offenders more punitively.  Garland’s move effectively seeks to eliminate the significant difference in the amount of powder cocaine relative to crack cocaine that is required to be in a suspect’s possession to trigger mandatory minimum federal sentences if convicted.

Critics of the longtime policy have said it is a relic of the Washington’s misguided war-on-drugs era that targeted Black and Brown communities, resulted in overpopulated prisons and strained federal and local resources at the expense of more effective strategies. Proponents of treating crack dealers more punitively have said that form of the drug is faster acting and capable of producing more intense highs. Under current federal policy, possession of 28 grams of crack cocaine would trigger a mandatory minimum prison sentence of five years, compared to 500 grams of powder cocaine.

Garland’s memo to the nation’s U.S. attorneys directs prosecutors to charge “pertinent statutory quantities that apply to powder cocaine” when pursuing crack cases and to “advocate for a sentence consistent with powder cocaine rather than crack cocaine.” The move, long sought by civil rights advocates, comes as the Equal Act, a legislative bill that would eliminate the disparity, has been stalled in the Senate amid objections from some Republicans after passing the House last year with bipartisan support.

Joe Biden, then a U.S. senator from Delaware, crafted the 1986 crime bill that initially set a 100-to-1 ratio between powder and crack cocaine to trigger mandatory minimum sentences. The Fair Sentencing Act 0f 2010 reduced the ratio to 18-to-1. The Biden administration endorsed the Equal Act last year....

Garland’s memo cited Justice Department testimony last year to the Senate Judiciary Committee that such a disparity “is simply not supported by science, as there are no significant pharmacological differences between the drugs: they are two forms of the same drug, with powder readily convertible into crack cocaine.”

During his confirmation hearing in February 2021, Garland told Sen. Cory Booker (D-N.J.), a co-sponsor of the Equal Act, that the inequitable sentencing in crack and powder cocaine cases had a “disparate impact on communities of color.” “There’s no justification for this, and we should end this,” Garland said at the time. He also said that powder cocaine “is as dangerous with respect to crime rates as crack cocaine, both of which have now been unfortunately overtaken by fentanyl and the opioids. But both of those are bad problems [and] equalizing penalties for crack and powder should have no difference with respect to our ability to fight violent crime.”

Garland aides said the new guidelines, which will take effect within 30 days, are part of a broader set of changes the attorney general is making to the Justice Department’s charging policies.  The department under Garland continues to support the passage of the Equal Act, aides said; unlike a legislative change to federal policy, they noted, Garland’s memo would not retroactively apply to previous convictions.

Jim Pasco, executive director of the National Fraternal Order of Police, said in an interview that he supported Garland’s directive. Though the group has opposed eliminating the sentencing disparity in the past, and it did not take a position on the Equal Act, Pasco said the police union’s views have evolved “as there’s been more clarity around the science.” Pasco said the Biden administration has supported police with additional resources to fight a rise in violent crime, and the union does not believe the policy changes on cocaine sentencing will adversely affect the efforts of law enforcement.

Garland’s action could face blowback from Republicans who have championed a bill that would reduce the sentencing disparity but not eliminate it entirely. In April, Sens. Charles E. Grassley (Iowa), Mike Lee (Utah), Roger Wicker (Miss.) and Lindsey O. Graham (S.C.) proposed legislation that would reduce the ratio of powder-to-crack cocaine that would trigger mandatory minimum sentences to 2.5-to-1. Unlike the Equal Act, however, that bill would achieve greater parity in part by increasing penalties for powder cocaine users.

Aggravatingly, as of 2pm EST, the new AG Garland crack charging memo is not available on the Justice Department's website.  I am very eager to see thsi memo, as well as whatever else appears in the "broader set of changes the attorney general is making to the Justice Department’s charging policies" before commenting at length.  But I will start by noting that federal law does provide at least one possible means for Garland’s memo to retroactively apply to some previous crack convictions: AG Garland could have prosecutors bring, and vocally and consistently support, motions for sentence reductions under 3582(c)(1)(A) for crack offenders who are still serving unduly long and unfair crack sentences based in the unjust disparity.

UPDATE:  A helpful reader made sure to get me copies of these new charging memos from AG Garland.  Here they are (with commentary to follow in coming days):

Download Attorney General Memorandum - General Department Policies Regarding Charging Pleas and Sentencing

Download Attorney General Memorandum - Additional Department Policies Regarding Charges Pleas and Sentencing in Drug Cases

Elaboration of dissent from SCOTUS denial of stay before Missouri execution

I flagged in this post the notable pre-execution litigation in Missouri before the execution of Kevin Johnson on Tuesday evening.  A helpful colleague made sure I did not miss this four-page opinion, released yesterday and authored by Justic Jackson and joined by Justice Sotomayor, dissenting from the Supreme Court's denial of the application for a stay.  Here is how it begins and a key paragraph within:

We denied Kevin Johnson’s application for an emergency stay of his execution on November 29, 2022, and the State of Missouri has carried out that penalty.  Now, one day later, I write to explain my vote to grant his stay request.  For the reasons that follow, in my view, there was a likelihood that Johnson would have succeeded on the merits of his federal due process claim, and it was clear that he would (and obviously did) suffer irreparable harm absent a stay.  I also believe that the equities weighed in Johnson’s favor....

In short, a State cannot provide a process for postconviction review (like that outlined in §547.031) and then arbitrarily refuse to follow the prescribed procedures.  But that appears to be what happened in this case, insofar as §547.031 was properly invoked through the filing of a motion to vacate but the Missouri Supreme Court determined that the reviewing court did not need to hold the mandatory hearing that allows for the presentation of evidence related to that motion, because, regardless, there was insufficient evidence to sustain the motion.  In my view, this reading of §547.031 was so fundamentally flawed, and so at odds with basic due process principles, that Johnson was likely to succeed in establishing that the procedures afforded in connection with the §547.03 motion amounted to a Fourteenth Amendment violation.

Prior related posts:

• Missouri Supreme Court considering [UPDATE: rejects] special prosecutor's motion to vacate death sentence due to "racist prosecution techniques" 
• Missouri completes execution after SCOTUS rejects final stay appeal 

Missouri Supreme Court considering [UPDATE: rejects] special prosecutor's motion to vacate death sentence due to "racist prosecution techniques"

As detailed in this local article, the Missouri Supreme Court "held an expedited hearing Monday to hear oral arguments for two motions to stay [Kevin] Johnson’s execution, in order to hold a hearing on alleged constitutional violations in his original trial." This last minute litigation, before an execution scheudled for Tuesday afternoon, is especially interesting because of who is seeking a stay and on what grounds:

One of the motions came from Edward Keenan, who is the special prosecutor the St. Louis County Circuit Court appointed in October to review Johnson’s conviction. “All parties can agree that the timing here is less than ideal, but we’re at where we’re at,” Keenan told the Supreme Court judges Monday....

During the hearing, Keenan said he found evidence of unconstitutional racial discrimination behind then-St. Louis County Prosecuting Attorney Robert McCulloch’s prosecution in Johnson’s 2007 trial, after reviewing more than 30,000 pages and contacting witnesses.

State law is “crystal clear,” Keenan argued, that he must be allowed to present this evidence before a judge at a hearing.  A state law enacted last year gave prosecutors the authority to file motions to set aside convictions in cases where a person may be innocent or may have been erroneously convicted.  Once the motions are filed, judges are required by law to hold hearings to review the evidence. 

On Nov. 15, Keenan filed a motion to set aside Johnson’s judgment and hold a new trial.  Within 12 hours, St. Louis County Presiding Judge Mary Elizabeth Ott, who had appointed Keenan to review the case, denied the motion without holding a hearing. With only six working days before Johnson’s execution, Ott said the motion put the court in “untenable position.”  State law requires a hearing, Ott wrote in a Nov. 19 order, but the court “is also aware of the requirement that sufficient time for all parties to prepare and present evidence at such hearing is essential to its proper function.”

Both Keenan and Johnson’s attorneys then filed motions to stay the execution, in order to allow the St. Louis County Court time to hold an evidentiary hearing.  “The special prosecutor represents the state,” said Joseph Luby, Johnson’s attorney, at the Monday hearing.  “And at the very least, the special prosecutor’s acknowledgement of racial bias needs to be fully aired at an evidentiary hearing, and that cannot happen if the state is allowed to kill Mr. Johnson tomorrow.”  A hearing will also allow Keenan to depose McCulloch, who has not cooperated with Keenan’s investigation, Luby said.

The attorney general’s office argued Monday the Missouri Supreme Court should continue with Johnson’s scheduled execution.  “It’s a matter of undisputed fact that Kevin Johnson is guilty of first-degree murder and a fair jury determined he deserved death penalty,” said Andrew Crane, who represented the attorney general’s office.  “And the rest of what we’re talking about is just the special prosecutor’s complaints about the way Bob McCulloch charged cases.”

When Johnson was 19, he was charged with first degree murder for the killing of Sgt. William McEntee of the Kirkwood Police Department on July 5, 2005.  The first trial ended when the jury deadlocked 10-2 in favor of a conviction on the lesser offense of second degree murder.  However, a second jury convicted Johnson of first degree murder and sentenced him to death in 2007.  Johnson admitted to killing McEntee, who Johnson believed had been involved in the death of his then 12-year-old brother.

Johnson has been denied relief at every available avenue, including previous proceedings before the Missouri Supreme Court.  Crane argued the new state law was not intended to allow a circuit court judge to overturn claims of racial bias that the state’s highest court had already ruled on.  However, Keenan said there have been U.S. Supreme Court rulings since the state court reviewed Johnson’s claims that may change the outcome – including a 2019 ruling that a prosecutor’s behavior in other cases “both may and must be considered.”

On Dec. 1, 2021, Johnson asked St. Louis County Prosecuting Attorney Wesley Bell’s Conviction and Incident Review Unit, which reviews potential wrongful convictions cases, to look into possible discrimination in his case.  Johnson’s former defender is now part of Bell’s conviction review unit, creating a conflict of interest, so they asked the court to appoint a special prosecutor.

Of the five police-officer killings McCulloch prosecuted during his tenure, Kennan found that McCulloch pursued the death penalty against four Black defendants but not against the one white defendant, Trenton Forster.  Keenan also discovered an “incriminating memorandum” from the trial team’s materials, showing the prosecutors strategized in advance of the trial on ways to get Black jurors stricken by the trial judge.

Crane said Monday that the memo “tells us nothing” about what was going on in McCulloch’s mind and doesn’t change anything about Johnson’s previous appellate claims.  Crane also argued the state law doesn’t require Johnson to get a hearing before he dies.

Chris Geidner at Law Dork has effective coverage of this notable case under the headline "Missouri wants to kill Kevin Johnson regardless of pending claims that racism underlies his death sentence." Here is how this piece gets started:

Missouri wants to kill Kevin Johnson on Tuesday.

Under a state law that went into effect last year aimed at providing a means to address past flawed prosecutions and convictions, however, a special prosecutor has found “that racist prosecution techniques infected Mr. Johnson’s conviction and death sentence.” Among other concerns, the special prosecutor found that race motivated the original prosecutor’s decision to seek the death penalty in Johnson’s case.

Nonetheless, Missouri Assistant Attorney General Andrew Crane, representing the state AG’s Office at the Missouri Supreme Court on Monday, argued that the special prosecutor’s claims couldn’t succeed under state and federal precedent and/or were irrelevant. Regardless, Crane said, the state shouldn’t have to wait on those claims to be resolved before they kill Johnson.

“The fact of the matter is that cases can be pending while an execution proceeds,” Crane told the court on Monday.

UPDATE: Late Monday night, the Missouri Supreme Court issued this per curiam opinion that begins this way:

Kevin Johnson was found guilty of first-degree murder and sentenced to death. His execution is scheduled for November 29, 2022.  This matter comes before the Court on two motions – one by Johnson and one by the Special Prosecutor – to stay Johnson’s execution.  Neither Johnson nor the Special Prosecutor claims Johnson is actually innocent. Instead, Johnson relies on the claims of “constitutional error” asserted by the Special Prosecutor in his motion to vacate Johnson’s conviction under section 547.031.  This Court has heard and rejected those claims before, however, and nothing asserted by the Special Prosecutor materially alters those claims or establishes any likelihood he would succeed on them if that case were to be remanded for a hearing as he claims it should be.  Accordingly, both motions to stay Johnson’s execution are overruled.

Two of the seven Justices on the Missouri Supreme Court dissented, via a lengthy opinion authored by Justice Breckenridge that started this way:

I respectfully dissent from the principal opinion that declines to exercise the Court’s equitable power to stay Kevin Johnson’s execution to allow, as provided for in section 547.031,1 adjudication of the motion filed by the special prosecutor of St. Louis County seeking to vacate Mr. Johnson’s conviction for the racially biased decision-making of the trial prosecuting attorney.  A stay is warranted under the standard the United States Supreme Court employs, and granting a stay of execution is the only way to afford to the special prosecutor and Mr. Johnson the mandatory process section 547.031 requires in these circumstances.  The proper application of legal principles to the circumstances presented by the special prosecutor’s motion to stay Mr. Johnson’s execution should lead to the issuance of a stay of execution.

Buffalo mass shooter pleads guilty to first-degree murder charges in state court

As this AP article details, the "white gunman who massacred 10 Black shoppers and workers at a Buffalo supermarket pleaded guilty Monday to murder and hate-motivated terrorism charges, guaranteeing that he will spend the rest of his life in prison." Here is more:

Payton Gendron, 19, entered the plea Monday in a courthouse roughly two miles from the grocery store where he used a semiautomatic rifle and body armor to carry out a racist assault he hoped would help preserve white power in the U.S.

He pleaded guilty to all the charges in the grand jury indictment, including murder, murder as a hate crime and hate-motivated domestic terrorism, which carries an automatic sentence of life without parole. Gendron also pleaded guilty to wounding three people who survived the May attack.

Gendron, who was handcuffed and wore an orange jumpsuit, showed little emotion through the 45-minute proceeding, just occasionally licking and clenching his lips. He answered “yes” and “guilty” as the judge referred to each victim by name and asked whether he killed each victim because of their race.

Immediate relatives of the victims were joined by Buffalo Mayor Byron Brown and the police commissioner in the gallery. Many of the relatives appeared to be crying, dabbing their eyes and sniffling. The judge urged calm as the proceedings began. “I understand this is a momentous and tremendously emotional event,” Judge Susan Eagan said.

“Swift justice,” is how Erie County District Attorney John Flynn described the result, noting that it’s the first time anyone in the state of New York has been convicted of the hate-motivated terrorism charge....

Every victim was targeted because of their race, Flynn said, noting that Gendron spared and even apologized to a white person during the attack. He modified a rifle into an illegal assault weapon so that he could kill as many African Americans, in as short a period of time, as he could, Flynn said.

“This critical step represents a condemnation of the racist ideology that fueled his horrific actions on May 14,” said Gendron’s lawyer, Brian Parker. “It is our hope that a final resolution of the state charges will help in some small way to keep the focus on the needs of the victims and the community.”...

Gendron previously pleaded not guilty to separate federal hate crime charges that could result in a death sentence if he is convicted. The U.S. Justice Department has not said whether it will seek capital punishment.

Elizabeth Holmes' federal sentencing ready to go forward after her new trial motion is denied

As detailed in this AP article, headlined "Bid for new trial fails, Elizabeth Holmes awaits sentencing," a high-prfole federal sentencing is now on track for later this month.  Here are the basics:

A federal judge rejected a bid for a new trial for disgraced Theranos CEO Elizabeth Holmes after concluding a key prosecution witness’s recent remorseful attempt to contact her wasn’t enough to award her another chance to avoid a potential prison sentence for defrauding investors at her blood-testing company.

The ruling issued late Monday by U.S. District Judge Edward Davila is the latest setback for Holmes, a former Silicon Valley star who once boasted an estimated net worth of $4.5 billion but is now facing up to 20 years in prison that would separate her from her 1-year-old son.

In the latest twist in a Silicon Valley soap opera, Holmes appeared to be pregnant when she showed up for an Oct. 17 hearing about her request for a new trial....

Davila has scheduled Nov. 18 as the day he will sentence Holmes, 38, for four felony counts of investor fraud and engaging in a conspiracy with [Rawesh “Sunny”] Balwani.  Earlier Monday, Davila postponed Balwani’s sentencing for his conviction on 12 counts of investor and patient fraud from Nov. 15 to Dec. 7.

I plan to wait until we see the formal sentencing submissions from the parties before even trying to make any predictions as to what kind of prison term Holmes might get.  But I welcome others' predictions in the comments as we gear up for what should be an interesting (and unpredicatable) sentencing proceeding.  

Prior related posts:

• Elizabeth Holmes convicted on 4 of 11 fraud charges ... but now can be sentenced on all and more 
• Making the case, because "upper-class offenders ... might be even more reprehensible," for a severe sentence for Elizabeth Holmes 
• Might any victims of Theranos fraud urge leniency at sentencing for Elizabeth Holmes?

"Locked Out 2022: Estimates of People Denied Voting Rights Due to a Felony Conviction"

The title of this post is the title of this new report released today by The Sentencing Project.  Here is the report's overview:

Laws in 48 states ban people with felony convictions from voting. In 2022, an estimated 4.6 million Americans, representing 2 percent of the voting-age population, will be ineligible to vote due to these laws or policies, many of which date back to the post-Reconstruction era.  In this election year, as the United States confronts questions about the stability of its democracy and the fairness of its elections, particularly within marginalized communities, the impact of voting bans on people with felony convictions should be front and center in the debate.

This 2022 report updates and expands upon 20 years of work chronicling the scope and distribution of felony disenfranchisement in the United States (see Uggen, Larson, Shannon, and Pulido-Nava 2020; Uggen, Larson, and Shannon 2016; Uggen, Shannon, and Manza 2012; Manza and Uggen 2006; Uggen and Manza 2002).  As in 2020, we present national and state estimates of the number and percentage of people disenfranchised due to felony convictions, as well as the number and percentage of the Black and Latinx populations impacted.  Although these and other estimates must be interpreted with caution, the numbers presented here represent our best assessment of the state of felony disenfranchisement as of the November 2022 election.

Among the report’s key findings:

• An estimated 4.6 million people are disenfranchised due to a felony conviction, a figure that has declined by 24 percent since 2016, as more states enacted policies to curtail this practice and state prison populations declined modestly. Previous research finds there were an estimated 1.2 million people disenfranchised in 1976, 3.3 million in 1996, 4.7 million in 2000, 5.4 million in 2004, 5.9 million in 2010, 6.1 million in 2016, and 5.2 million in 2020.

• One out of 50 adult citizens — 2 percent of the total U.S. voting eligible population — is disenfranchised due to a current or previous felony conviction.

• Three out of four people disenfranchised are living in their communities, having fully completed their sentences or remaining supervised while on probation or parole.

• In three states — Alabama, Mississippi, and Tennessee — more than 8 percent of the adult population, one of every 13 adults, is disenfranchised.

• Florida remains the nation’s disenfranchisement leader in absolute numbers, with over 1.1 million people currently banned from voting, often because they cannot afford to pay court-ordered monetary sanctions. An estimated 934,500 Floridians who have completed their sentences remain disenfranchised, despite a 2018 ballot referendum that promised to restore their voting rights.

• One in 19 African Americans of voting age is disenfranchised, a rate 3.5 times that of non-African Americans. Among the adult African American population, 5.3 percent is disenfranchised compared to 1.5 percent of the adult non-African American population.  More than one in 10 African American adults is disenfranchised in eight states – Alabama, Arizona, Florida, Kentucky, Mississippi, South Dakota, Tennessee, and Virginia. 

• Although data on ethnicity in correctional populations are unevenly reported and undercounted in some states, a conservative estimate is that at least 506,000 Latinx Americans or 1.7 percent of the voting eligible population are disenfranchised.  Approximately 1 million women are disenfranchised, comprising over one-fifth of the total disenfranchised population.

New DPIC report: "Deeply Rooted: How Racial History Informs Oklahoma’s Death Penalty"

This coming Thursday, Oklahoma is scheduled to execute Benjamin Cole for the 2002 murder of his infant daughter (though his lawyers have sought a stay from SCOTUS based on claims of incompetency).  Remarkably, Oklahoma has another 20+ executions scheduled for the next two years, with almost one execution scheduled for every month through 2024.  These plans appear to have prompted the folks at the Death Penalty Information Center to produce this big new report titled "Deeply Rooted: How Racial History Informs Oklahoma’s Death Penalty."  Here is the text of the report's conclusion:

Oklahoma is at an inflection point in its administration of the death penalty.  The state can continue executing people affected by what many Oklahomans consider a broken system or implement reforms that have been proposed by bipartisan advocates for years.  A shift away from the death penalty may even be more aligned with Oklahomans’ views on the issue, as recent surveys have shown a decline in support for the death penalty.  In addition, more than half of Oklahomans surveyed in 2015 revealed they would support abolishing capital punishment if the state replaced the death penalty with the alternative sanction of life without parole, plus restitution.

Systemic issues in the state’s use of the death penalty affect all capital defendants. However, the impact is skewed based on the race of defendant and victim, and the effects are particularly harsh on defendants of color. People of color are more likely to be victims of police misconduct and violence; they are more likely to suffer from the effects of having all-white or nearly all-white juries; and they are at greater risk of being executed if they have intellectual disabilities.  Additionally, the higher rate of death sentencing for cases involving white victims illustrates the enhanced punishment for those accused of crimes against white people that has been evident since the heyday of lynchings. Despite documented problems with the administration of Oklahoma’s death penalty, courts are largely unwilling to rectify them, leaving few options for relief.  If Oklahoma is to establish a fair and humane system of justice, it is crucial to acknowledge and redress the lingering effects of Jim Crow and racial violence on the state’s administration of the death penalty.

US Sentencing Commission produces "additional analyses" of those receiving federal marijuana possession pardons

In an update to this post last week, I noted that the US Sentencing Commission had produced this three-page analysis of "data relating to offenders sentenced between fiscal year 1992 and fiscal year 2021 convicted of at least one count of simple possession involving marijuana."  That analysis explained where "senior administration officials" were getting the talking point that around 6500 people were going to benefit from President Joe Biden's decision to grant a blanket pardon to "all current United States citizens and lawful permanent residents who committed the offense of simple possession of marijuana in violation of the Controlled Substances Act"  That USSC accounting also led me to wonder if we might ever get "race and gender and age and criminal history information" regarding this now-pardoned population.

Excitingly, late yesterday the US Sentencing Commission issued this news advisory announcing that it had completed "additional analyses" of the pardoned population "providing additional information on demographics and geographic distribution."  The additional USSC analyses include race and gender data (but no age and criminal history data), and the biggest story in the new analyses seems to be that the pardoned population is comprised of more Whites (41.3%) and Hispanics (31.8%) than Blacks (23.6%).  This reality may be a bit surprising given that the ACLU has repeatedly documented that states have in recent decades arrested Blacks at nearly four times the rate as whites (see here and here).  But since most federal marijuana possession offenses are concentrated near the border or on federal property (like military bases and national parks), this racial distribution perhaps should not be all that surprising.

Prior related posts:

• October surprise: Prez Biden announces he is "pardoning all prior federal offenses of simple marijuana possession"! Wow!
• A few more details about President Biden's mass pardon of federal offenses of simple possession of marijuana
• Rounding up a few (of many) reactions to Prez Biden's marijuana possession pardons
• Prez Biden's one miss in his marijuana moves: failing to urge Congress to move on federal record relief mechanisms

Notable new research on modern operation and impact of Three Strikes law in California

I just came across this notable new report from the California Policy Lab released a couple of months ago titled simply "Three Strikes in California." Here is the 45-page report's listing of "Key Findings" (with bolding in the original):

• Three-Strikes enhancements affect a large share of the currently incarcerated prison population, but a smaller share of admissions to prison.  Less than one-third of prison admissions since 2015 involve a strike enhancement, with most receiving a doubled-sentence enhancement and a smaller percentage receiving a third-strike enhancement. At a given point in time however, individuals with strike enhancements constitute a larger proportion of the incarcerated population because they serve longer sentences

• Nearly 65% of admissions to prison with a doubled-sentence enhancement are for a non-violent, non-serious offense.

• Given the longer sentences imposed for serious or violent offenses, the reverse is true for people currently incarcerated: approximately 71% of those with doubled-sentence enhancements were convicted of a serious or violent offense.

• Black individuals are heavily over-represented among people serving sentences with third-strike enhancements, and to a lesser degree, with doubled-sentence enhancements. Overrepresentation exists relative to the racial/ ethnic composition of the prison population, and overwhelmingly relative to the racial/ethnic composition of the resident population of California.

• Judicial and prosecutorial discretion can mitigate the severity of strike enhancements.  The data suggests that judges and prosecutors may mitigate the severity of doubled-sentence enhancements by choosing (or accepting) lower sentence length options, but the effect of discretion on overall sentence length is modest.

• The use of strike enhancements varies widely across counties.  While third-strike sentences are considerably more rare today than in past years and the ordering across counties has changed over time, high-use and low-use counties documented in the early 2000s are largely similar in terms of rank today.

• The implementation of Three Strikes does not explain statewide declines in crime over time.  Early evaluations claiming large impacts on crime fail to account for national crime trends and also suffer from methodological flaws. More recent research suggests that Three Strikes may have a modest deterrent effect on relatively less serious crime, but likely does not account for the declines in California’s crime rates beginning in the mid-1990s.  Crime fell contemporaneously throughout the nation, and comparisons of crime trends in California to states that did not pass Three-Strikes laws reveal very similar trends over the subsequent two decades.

"Race and Wrongful Convictions in the United States 2022"

The title of this post is the title of this lengthy new report from the National Registry of Exonerations.  Here is the start of its executive summary:

Black people are 13.6% of the American population but 53% of the 3,200 exonerations listed in the National Registry of Exonerations.  Judging from exonerations, innocent Black Americans are seven times more likely than white Americans to be falsely convicted of serious crimes.

We see this racial disparity, in varying degrees, for all major crime categories except white collar crime.  This report examines racial disparities in the three types of crime that produce the largest numbers of exonerations: murder, sexual assault, and drug crimes.

For both murder and sexual assault, there are preliminary investigative issues that increase the number of innocent Black suspects: for murder, the high homicide rate in the Black community; for rape, the difficulty of cross-racial eyewitness identification.  For both crimes, misconduct, discrimination and racism amplify these initial racial discrepancies.

For drug crimes, the preliminary sorting that increases the number of convictions of innocent Black suspects is racial profiling.  In addition, the Registry lists 17 “Group Exonerations” including 2,975 additional wrongfully convicted defendants, many of whom were deliberately framed and convicted of fabricated drug crimes in large-scale police scandals. The overwhelming majority are Black.

Rounding up some notable justice coverage and commentary from Law360's Access to Justice

I find a lot of Law360 coverage and commentary to be blogworthy, but I also find a lot of it behind a paywall.  Fortunately, the Law360 folks have the good sense to keep its Access to Justice section open access.  And that section has had a number of recent pieces that ought to be of interest to sentencing fans:

"Access To Justice Cases To Watch This Supreme Court Term"

"Racial Disparities In State Imprisonment Continue To Decline"

"Mich. Ruling Widens Sentencing Protections For Young Adults"

"Algorithms Have Potential To Reduce Sentencing Disparities"

"Are progressive chief prosecutors effective in reducing prison use and cumulative racial/ethnic disadvantage? Evidence from Florida"

The title of this post is the title of this new article recently published in the journal Criminology & Public Policy and authored by Ojmarrh Mitchell, Daniela Oramas Mora, Tracey L. Sticco and Lyndsay N. Boggess. Here is its abstract:

Research Summary

Progressive chief prosecutors, campaigning on platforms calling for reducing prison populations and racial/ethnic disparities, have been elected in numerous jurisdictions across the United States in recent years.  Yet, there is no empirical research that compares case outcomes between jurisdictions headed by progressive and traditional chief prosecutors.  In this research, we utilize a cumulative case outcome approach that tracks cases from arrest to disposition to examine whether cases prosecuted under progressive chief prosecutors receive less punitive sanctions and exhibit smaller racial/ethnic disparities.  We find that cases adjudicated in progressive jurisdictions are more likely to end without a felony conviction and less likely to result in a prison sentence.  Racial but not generally ethnic disadvantage is evident in case outcomes, and racial disparities are smaller in jurisdictions led by progressive chief prosecutors.

Policy Implications

The election of progressive prosecutors is a radical departure from earlier approaches aimed at controlling prison populations and mitigating racial disparities.  Instead of restricting the discretion of criminal justice actors, voters are relying on progressive, reformist prosecutors to use their enormous discretion in less punitive and more egalitarian fashions.  This research indicates that progressive chief prosecutors do, in fact, reduce prison use and racial disparities.

Council on Criminal Justice releases "Justice System Disparities: Black-White National Imprisonment Trends, 2000 - 2020"

Three years ago, as flagged in this post, the Council on Criminal Justice (CCJ) released a notable report detailing notable modern changes in the modern demographics of prison, jail, probation, and parole populations titled "Trends in Correctional Control by Race and Sex."  Today, CCJ has released another important data report looking a racial disparity data under the title "Justice System Disparities: Black-White National Imprisonment Trends, 2000 - 2020."  The full report is available at this link, and here is what's listed as "key findings" in the first few pages of the full report:

• Over the first two decades of the 21st century, the disparity in Black and White state imprisonment rates (the ratio of Black-to-White rates) fell 40%; in 2020, Black adults were imprisoned at 4.9 times the rate of White adults, down from 8.2 times in 2000.
  o The Black imprisonment rate fell faster than the White imprisonment rate (47% vs. 11%).
  o The number of Black people in prison decreased by 27%, while the number of White people in prison increased by 4%.

• Half of the disparity reduction occurred in the first five years of the 20-year period, as the rate of narrowing slowed in more recent years. In 2020, responses to the COVID19 pandemic led to an unprecedented 15% drop in state prison populations, but that historic decline did not result in a change in Black-White imprisonment disparities.

• Black-White disparities in state imprisonment rates fell across all four offense categories—violent, property, drug, and public order—with the largest decrease occurring for drug crimes. Disparity in drug imprisonment rates fell by 75%; that drop accounted for about half of the overall decrease in the Black-White imprisonment rate disparity.

• Black-White disparity in new court commitments to prison per arrest fell to near parity for property and drug crimes in 2019. Disparities in arrest rates per resident for these offense categories fell to about 2-to-1. Disparity in prison admission for
  technical violations per person on parole also fell. In combination, these results suggest that Black adults are overrepresented in prison admissions relative to White adults because they are arrested at higher population-based rates, not because their arrests are more likely to result in imprisonment.

• Racial disparity in violent crime imprisonment rates arose from racial differences in offending rates (as indicated by accounts of victims of violent crimes, most of which are intra-racial); admissions per arrest; and length of stay.

• The Black-White disparity in prison admission rates declined, while disparity in length of stay in prison increased. Disparity in admissions rates fell from 7.2 in 2000 to 3.2 in 2020. Expected length of stay in prison for Black adults increased from 2.2 years to 2.5 years, while for White adults it fell from 2 to 1.8 years. Despite these changes, racial differences in prison admissions rates accounted for nearly three quarters of the Black-White imprisonment rate disparity in 2020.

• In 2000, Black people on parole were more likely to be returned to prison for breaking the rules of their supervision (“technical violations”) than White people; by 2020 White people were more likely to be returned to prison for this reason. The changes in technical violation rates contributed to decreasing the disparity in total admissions.

• Racial disparities in imprisonment will persist without significant reductions in:
  o The disparity in rates of violent offending;
  o The disparity in prison time served; and/or,
  o The role of criminal history in sentencing and release decisions

"Racial Disparities in Lifer Parole Outcomes: The Hidden Role of Professional Evaluations"

The title of this post is the title of this new article recently published in the journal Law & Social Inquiry. The article was authored by Kathryne M. Young and Jessica Pearlman and here is its abstract:

One in seven people in prison in the US is serving a life sentence, and most of these people will eventually be eligible for discretionary parole release.  Yet parole hearings are notoriously understudied.  With only a handful of exceptions, few researchers have considered the ways in which race shapes decision-makers’ perception of parole candidates.  We use a data set created from over seven hundred California lifer parole hearing transcripts to examine the factors that predict parole commissioners’ decisions.  We find significant racial disparities in outcomes, with Black parole candidates less likely to receive parole grants than white parole candidates, and test two possible indirect mechanisms.  First, we find that racial disparity is unassociated with differences in rehabilitative efforts of Black versus white parole candidates, suggesting that differential levels of self-rehabilitation are not responsible for the disparity.  Second, we test the hypothesis that racial disparity owes to commissioners’ reliance on other professionals’ determinations: psychological assessments, behavioral judgments, and prosecutors’ recommendations.  We find that reliance on these evaluations accounts for a significant portion of the observed racial disparity. These results suggest that inclusion of professional assessments is not race-neutral and may create a veneer of objectivity that masks racial inequality.

"Lemonade: A Racial Justice Reframing of The Roberts Court’s Criminal Jurisprudence"

The title of this post is the title of this recent article authored by Daniel Harawa available via SSRN. Here is its abstract:

The saying goes, when life gives you lemons, make lemonade.  When it comes to the Supreme Court’s criminal jurisprudence and its relationship to racial (in)equity, progressive scholars often focus on the tartness of the lemons. In particular, they have studied how the Court often ignores race in its criminal decisions, a move that in turn reifies a racially subordinating criminalization system.

However, the Court has recently issued a series of decisions addressing racism in the criminal legal system: Buck v. Davis, Peña-Rodriguez v. Colorado, Timbs v. Indiana, Flowers v. Mississippi, and Ramos v. Louisiana.  On their face, the cases teach that history matters. Government actors who discriminate must be held to account.  Accepted institutional practices can no longer perpetuate racism. And courts must assume an active role in addressing the racism endemic to the criminal legal system.  At least tonally, these cases are a marked shift for the notoriously post-racial Roberts Court

But if you dig a little deeper, it is clear that the cases have severe shortcomings.  The cases reflect that the Court acknowledges only the most egregious examples of racism, and it fails to see the invidious ways race taints the criminal legal system.  The cases also demonstrate the Court’s failure to connect past racial practices with present racial disparities, a failure that in turn paints a false picture of discontinuity of the past from the present.  When viewed critically, these seemingly race-aware cases fall neatly in line with the post-racial critiques of the Roberts Court. From a racial justice perspective, the cases could be viewed as lemons.

Even so, this Article attempts to make lemonade. The Article shifts the narrative about the Court’s criminal jurisprudence by arguing that these recent cases can be helpful tools in the fight for racial justice.  This Article asserts that the cases can be deployed not only to make specific antiracist legal arguments, but also to push for policy changes and to encourage more open discussions about racism in the criminal legal system.  In the end, the Article urges a reclaiming of the case law to help unwind the corrosive relationship between race, crime, and punishment in America.  This intervention is necessary now, for the millions of Black and Brown people shuffled through the system each year. 

US organizations file complaint at United Nations stating LWOP and other extreme prison terms "are cruel in violation of the international prohibition on torture"

As reported in this new Guardian piece, headlined "US civil rights groups file complaint against ‘death by incarceration’ to UN," a coalition of organizations today filed a notable broadside against all extreme prison terms in the US.  Here are the basics:

A coalition of civil and human rights organizations on Thursday filed a complaint urging United Nations special rapporteurs to declare the United States’ longstanding practice of subjecting people to life sentences, including without possible release, “cruel, racially discriminatory” and “an arbitrary deprivation of liberty” that violates incarcerated people’s rights.

They argued that “death by incarceration”— a term describing life sentences without parole coined by [Terrell] Carter and other members of the Right to Redemption Committee, a group of incarcerated people seeking the abolition of the practice — amounted to torture.  In their complaint, the civil rights organizations asked the international watchdogs to pressure the United States, who leads the world in sentencing people to life imprisonment, to abolish the extreme practice altogether.  They proposed instead to impose maximum sentencing laws that would eliminate the practice of “virtual life” sentences — those longer than a person’s remaining years of life expectancy, often more than 50 years....

Dozens of testimonies from incarcerated people sentenced to life detail the horrific toll so-called “death by incarceration” has not just on their physical, mental and emotional wellbeing but also the lasting impact separation has on their family members.  Carlos Ruiz Paz, who is serving a life sentence in California, wrote in a testimonial that a life sentence without parole signaled a person was “irreparably damaged without hope of redemption”, adding: “Extreme sentences affect the kids who grow up without us and the parents that will die without us at their side.”

The complaint noted that the United States’ use of virtual life sentences increased exponentially since the 1970s, particularly after the supreme court abolished the death penalty in 1972, prompting states to strengthen life sentencing laws for offenders.  Even after the supreme court reversed course in 1976, extreme sentencing practices continued.  By the 1980s and 90s, as the federal government incentivized states to impose harsher sentencing practices in an effort to curtail perceived rises in crime, more and more people were imprisoned for longer.

The toll of that suffering has disproportionately upended the lives of Black and brown people who have been subjected to over-policing throughout time, exposing them to the US carceral system and led to escalating mass incarceration.  Organizers argue that that violates international human rights law prohibiting racial discrimination. “This systemic deprivation of resources, including education, healthcare and other social support and services, is coupled with the entry of more police and prisons in these communities and exposure to the criminal legal system,” the complaint noted.

The US is the only country that sentences children under 18 to life without parole, a practice that the United Nations has already singled out. And the US accounted for more than 80% of people worldwide serving life sentences without parole.

The full complaint is available at this link, and it runs 160 pages in total (though 3/4 of the document is comprised of an Appendix with testimonials from persons serving extreme sentences). Here is a paragraph from the complaint's introduction:

The United States’ use of DBI sentences violates a range of international human rights.  First, the disproportionate imposition of DBI sentences on racial minorities, in particular Black and Latinx people, violates the prohibition against racial discrimination.  Second, by arbitrarily and permanently sentencing individuals to prison terms that result in their premature death, DBI sentences violate individuals’ right to life.  Third, as recognized by numerous international human rights bodies, by depriving individuals of their right to hope and to rehabilitation, DBI sentences violate the international prohibition against torture and cruel, inhuman, and degrading treatment.  The devastating consequences on an individual’s right to family life further exacerbate the cruelty of DBI sentences.  Finally, the failure of DBI sentences to serve any legitimate purpose further demonstrates that such sentences are an impermissibly arbitrary deprivation of liberty.  To comply with international human rights standards, the United States must abolish DBI and restore incarcerated individuals’ right to hope.

"Where Black Lives Matter Less: Understanding the Impact of Black Victims on Sentencing Outcomes in Texas Capital Murder Cases from 1973 to 2018"

The title of this post is the title of this recent article published in the Saint Louis University Law Journal authored by Jelani Jefferson Exum and David Niven.  Here is part of its abstract:

Scholars and advocates have long acknowledged that the death penalty is disproportionately applied to Black offenders.  It is also well known that the race of a victim is a leading factor in a capital defendant’s risk of receiving the death penalty, with those convicted of murdering whites significantly more likely to receive the death penalty than those convicted of murdering Blacks.  This Article takes an in-depth look at statistics covering the sentencing outcomes in capital murder cases in Texas from 1973 to 2018, revealing the clear evidence that race matters in the imposition of the death penalty.  However, this Article does not simply join the chorus of voices that have recognized the racial disparity in the death penalty.  Rather, the authors argue that the lesson from the Black victim effect on the death penalty decision fits into the broader, historic, and present-day context of devaluing Black lives. As the Texas example provides, the devaluing effect of Blackness is apparent.  This is not simply a failure to recognize the value of Black lives — as the Black Lives Matter movement exposes — but a reflection of the societal view that Blackness actually reduces the value and importance of all things — from property to community spaces to ultimate humanity. In life, Black people are vastly under-protected by the law, and the same is true for Black people even in a system designed to exact retribution for death.  When we accept the fact that the death penalty reveals that Black deaths do not matter, then it becomes apparent that there is not an antiracist fix for the death penalty other than its abolition.

In this Article, the authors present the most comprehensive data ever assembled on capital murder cases in Texas to affirm that the scope of the race of victim difference is jarring.  This data shows how pervasive race is in death penalty outcomes.  In every single comparison the racial disparity was statistically significant, and harsher punishment was associated with white victims than with African American victims, who clearly mattered less.  The truth, of course, is that Black victims matter as much as any, even if the legal system and society haven’t recognized their value. Within a database of thousands of cases there are thousands of tragic stories of lives upended by acts of an almost unspeakable nature.  The details differ from case to case, but across all those thousands of cases the race of victim disparity persists.  The math is straightforward.  Indeed, the odds against the patterns seen here — emerging by chance — are truly astronomical.  The race of the victim matters in the Texas criminal justice system.

As a matter of jurisprudence and policy making, however, the meaning of this data is uncertain.  When legislators debate the death penalty, racial disparities are among the most frequently cited concerns of opponents of the death penalty.  Supporters of the death penalty, however, dispute both the math and the meaning of findings of racial disparities, taking particular offense at the suggestion that race influences sentencing or influences their own views. These authors argue that abolition is the only corrective approach.  We must make the radical choice to uproot systems, like the death penalty, that allow the anti-Black biases in our national consciousness to not only thrive, but to be just.  To do otherwise is to perpetuate a system where Black lives matter less.

New Sentencing Project report highlights court diversion as a means to reduce juvenile justice disparities

The Sentencing Project today released a big new report authored by Richard Mendel titled "Diversion: A Hidden Key to Combating Racial and Ethnic Disparities in Juvenile Justice."  Here are parts of the report's executive summary:

Diverting youth from juvenile court involvement should be a central focus in efforts to reduce racial and ethnic disparities and improve outcomes in our nation’s youth justice systems.

Clear evidence shows that getting arrested in adolescence or having a delinquency case filed in juvenile court damages young people’s futures and increases their subsequent involvement in the justice system.  Compared with youth who are diverted, youth who are arrested and formally petitioned in court have far higher likelihood of subsequent arrests and school failure.  Pre-arrest and pre-court diversion can avert these bad outcomes.

Research shows that Black youth are far more likely to be arrested than their white peers and far less likely to be diverted from court following arrest.  Other youth of color — including Latinx youth, Tribal youth, and Asian/Pacific Islander youth — are also less likely than their white peers to be diverted.  The lack of diversion opportunities for youth of color is pivotal, because greater likelihood of formal processing in court means that youth of color accumulate longer court histories, leading to harsher consequences for any subsequent arrest.

Expanding diversion opportunities for youth of color therefore represents a crucial, untapped opportunity to address continuing disproportionality in juvenile justice....

For most youth, diversion is more effective and developmentally appropriate than court.  Compelling research finds that formal involvement in the justice system tends to undermine rather than enhance public safety and to reduce young people’s future success....

Diversion is vastly underutilized in the United States.  Of the youth referred to juvenile or family courts for delinquency each year, just 7% are accused of serious violent offenses.  Therefore, a large majority of youth accused of delinquency should be diverted rather than arrested and formally processed in a juvenile court.  Yet the use of diversion remains limited....

The diversion stage of the juvenile court process should be a top priority for youth justice reform.  Advocates should push for and system leaders must take aggressive action to address racial and ethnic disparities in diversion.  Combined, reforms to expand and improve the use of diversion offer perhaps the most important and promising avenue currently available to reduce disparities and to improve youth justice systems nationwide.

"Racial equity in eligibility for a clean slate under automatic criminal record relief laws"

The title of this post is the title of this new article published in Law & Society Review authored Alyssa C. Mooney, Alissa Skog and Amy E. Lerman. Here is its abstract:

States have begun to pass legislation to provide automatic relief for eligible criminal records, potentially reducing the lifelong collateral consequences of criminal justice involvement.  Yet numerous historical examples suggest that racially neutral policies can have profoundly disparate effects across racial groups.  In the case of criminal record relief, racial equity in eligibility for a clean slate has not yet been examined.  We find that in California, one in five people with convictions met criteria for full conviction relief under the state's automatic relief laws.  Yet the share of Black Americans eligible for relief was lower than White Americans, reproducing racial disparities in criminal records.

We identify two policy amendments that would reduce the share of Black men in California with convictions on their criminal records from 22% to 9%, thereby narrowing the difference compared to White men from 15 to seven percentage points.  Put another way, an additional one in seven Black men currently has a conviction record, compared to their White counterparts.  This would decline to an additional one in 14 if both hypothetical policy amendments were incorporated.  We close with discussion of criminal history data quality limitations, which pose a second key challenge to equitable implementation of automatic criminal record relief reforms nationwide.

Latest "Time-in-Cell" report estimates that, as of July 2021, "between 41,000 and 48,000 people were held in isolation in U.S. prison cells"

This Guardian article, headlined "Nearly 50,000 people held in solitary confinement in US, report says," reports on the latest version of the important work done by Correctional Leaders Association and the Arthur Liman Center for Public Interest Law at Yale Law School to estimate the number of people held in solitary confinement in the United States.  Here is part of the press reporting:

In a new report spearheaded by Yale Law School, the number of prisoners subjected to “restrictive housing”, as solitary is officially known, stood at between 41,000 and 48,000 in the summer of 2021. They were being held alone in cells the size of parking spaces, for 22 hours a day on average and for at least 15 days.

Within that number, more than 6,000 prisoners have been held in isolation for over a year. They include almost a thousand people who have been held on their own in potentially damaging confined spaces for a decade or longer....

The new solitary study, Time-In-Cell: A 2021 Snapshot of Restrictive Housing, extrapolates its findings from the reported figures of 34 states and the Federal Bureau of Prisons. Though it finds that levels of solitary remain shockingly high, it also stresses that the figures are moving in the right direction.

When the researchers began the series of annual snapshots in 2014 the number of prisoners trapped in isolation was almost twice today’s level, at between 80,000 to 100,000. Since then the graph has steadily declined, with a growing number of states introducing new laws to restrict or even ban the practice.“In the 1980s people promoted solitary confinement as a way to deal with violence in prisons,” said Judith Resnik, Yale’s Arthur Liman professor of law. “It is now seen as a problem itself that needs to be solved.”

California, a state with a dark history of abusive solitary confinement, is currently debating new legislation. The California Mandela Act would require every custodial institution in the state to impose strict rules and reporting, and would ban solitary for pregnant women, people under 26 or over 59, and those with mental or physical disabilities.

Last year New York state passed similar legislation, joining a growing list. The Yale study finds that three states – Delaware, North Dakota and Vermont – reported having no inmates in such confinement in 2021, and two other states said they had fewer than 10 people.

Despite such optimistic signs, restrictive housing continues to inflict untold suffering on thousands of men and women. 

This press release about the report provides some more details and context:

Time-In-Cell: A 2021 Snapshot of Restrictive Housing estimates that, as of July 2021, between 41,000 and 48,000 people were held in isolation in U.S. prison cells. The report defines solitary confinement as 22 hours or more on average a day for 15 days or more. 

The report’s co-authors have worked together for a decade to generate this data, producing the only longitudinal, nationwide database documenting the reported use of solitary confinement in prisons in the United States. 

According to the most recent study, three states reported holding no one in isolation in July 2021, two other states reported fewer than 10 people in solitary, and 10 states reported not using solitary in any of their women’s prisons. In contrast, in 2014, every jurisdiction reported using solitary confinement. That year, an estimated 80,000 to 100,000 people were in solitary in prisons throughout the United States.....

Time-in-Cell also examined the demographics of people held in isolation. The report found that solitary confinement continues to be used for people whom reporting jurisdictions define as having serious mental illness. Moreover, the report found that the number of Black women held in solitary was higher than the number of white women.

The full report includes the numbers, duration, and conditions of people in solitary confinement and the changes underway.

"The Fallacy of Systemic Racism in the American Criminal Justice System"

The title of this post is the title of this new paper authored by Paul Larkin and GianCarlo Canaparo now available via SSRN. Here is its abstract:

Critics of the criminal justice system have repeatedly charged it with systemic racism.  It is a tenet of the “war” on the “War on Drugs,” it is a justification used by the so-called progressive prosecutors to reject the “Broken Windows” theory of law enforcement, and it is an article of faith of the “Defund the Police!” movement.  Yet, few people have defined what they mean by that term.  This Article examines what it could mean and tests the truth of the systemic racism claim under each possible definition.  None stands up to scrutiny.

One argument is that the American citizens who run our many institutions are motivated by racial animus.  But the evidence is that racial animus is no longer tolerated in society, and what is more, the criminal justice system strives to identify it when it does occur and to remedy it.  Another argument says that the overtly racist beliefs and practices of the past have created lingering racist effects, but this argument cherry-picks historical facts (when it does not ignore them altogether) and fails to grapple with the country’s historic and ongoing efforts to eliminate racial discrimination. It also assumes a causal relationship between past discrimination and present disparities that is unsupported and often contradicted by the evidence.  Yet another argument relies psychological research to claim that white Americans are animated by a subconscious racial animus.  That research, however, has been debunked.  Still another argument says that the criminal justice system is systemically racist because it has disparate effects across racial groups, but this argument looks only at the offenders’ side of the criminal justice system and fails to consider the effect of the criminal justice system on victims.

Proponents of the systemic racism theory often proffer “solutions” to it.  This Article, and its companion, which will be published in the same Volume, examines those too and finds that many would, in fact, harm the very people they aim to help.

This Article is part one of two and focuses on the claim of systemic racism in criminal justice system generally.  The second Article focuses on the War on Drugs in particular.  The bottom line of both is this: the claim of systemic racism in the criminal justice system and in the War on Drugs is unjustified and should be rejected.

"McCleskey Accused: Justice Powell and the Moral Price of Institutional Pride"

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

Writing for the Supreme Court in McCleskey v. Kemp, Justice Lewis F. Powell, Jr. authored a maximalist decision that transcended capital practice and effectively barred constitutional claims of systemic inequality.  Powell would ultimately come to regret the ruling, announcing in retirement that the death penalty should be abolished entirely.  Powell struggled, then, with an apparent tension between moral conviction and purported legal command — a tension that Robert Cover called a “moral-formal dilemma.”  Cover used this concept to evaluate the decision-making processes of antebellum abolitionist judges asked to apply the fugitive slave acts.  These judges knew better but repeatedly refused to do better, resorting instead to a set of methodological crutches to make immoral outcomes appear legally inevitable.  And, in McCleskey, Powell relied upon some of the same crutches.

In other ways, however, Powell’s opinion does not fit neatly within the Cover mold.  Cover rooted the cowardice of his antislavery judges in the “thoroughgoing positivism” of the era.  But Powell was not a positivist.  Indeed, he was not even a death-penalty abolitionist — at least not in the way we would normally understand that term.  What, then, accounted for Powell pursuing such a remarkably similar — and similarly shoddy — moral, prudential, and jurisprudential course?  In this essay, I dissect McCleskey v. Kemp.  I argue that amoral positivism cannot explain the opinion.  To understand Powell’s motivation, we must dig deeply into his biography.  There we discover his abiding principled commitment to a particular brand of anti-positive hubris.  Powell was a proud institutionalist — a moral orientation that constituted an implicit bias, which prevented him from considering adequately the moral interests of systemic outsiders.  I conclude the essay with a sketch of the kind of judge who could better confront the quandary of whether to apply immoral law.  Perhaps surprisingly, this judge is a type of positivist — a skeptical positivist.

"Sex Exceptionalism in Criminal Law"

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

Sex crimes are the worst crimes.  People widely believe that sexual assault is graver than nonsexual assault, uninvited sexual compliments are worse than nonsexual insults, and sex work is different from work.  Criminal codes create a dedicated category for sex offenses, uniting under its umbrella conduct as different as violent attacks and consensual commercial transactions.  This exceptionalist treatment of sex as categorically different rarely evokes discussion, much less debate.  However, sex exceptionalism is not natural or neutral, and its political history should give us pause. This Article is the first to trace, catalogue, and analyze sex exceptionalism in criminal law.  Through a genealogical examination of sex-crime law from the late eighteenth century to today, it makes several novel contributions to the debate over how criminal law should regulate sex.

First, the Article casts doubt on the conventional account that rape law’s history is solely one of sexist tolerance — an account that undergirds contemporary calls for broader criminal regulations and higher sentences.  In fact, early law established rape as the most heinous crime and a fate worse than death, but it did so to preserve female chastity, marital morality, and racial supremacy.  Sex-crime laws were not underenforced but selectively enforced to entrench hierarchies and further oppressive regimes, from slavery to social purity.  Second, this history suggests that it is past time to critically examine whether sex crimes should be exceptional.  Indeed, in the 1960s and 70s, the enlightened liberal position was that rape law should be less exceptional and harmonized with the law governing “ordinary” assault.

Third, the Article spotlights the invisible but powerful influence sex exceptionalism exerts on scholarship and advocacy.  Despite the liberal critique, sex exceptionalism flourished, and today it is adopted without hesitation.  Sex dazzles theorists of all types.  For sex crimes, retributivists accept exorbitant sentences, and utilitarians tolerate ineffective ones.  Critics of mass incarceration selectively abandon their principled stance against expanding the penal state.  Denaturalizing sex exceptionalism and excavating its troubling origins forces analysts to confront a detrimental frame underlying society’s perpetual enthusiasm for punitive sex regulation.

Recapping some notable Senate hearings on prisons and pot

Yesterday saw two notable hearing on Capitol Hill on criminal justice concerns, and here is some press coverage providing a partial summary of some of what transpired:

From the AP, "Prisons chief deflects blame for failures, angering senators":

With just days left in his tenure, the embattled director of the federal prison system faced a bipartisan onslaught Tuesday as he refused to accept responsibility for a culture of corruption and misconduct that has plagued his agency for years.

Bureau of Prisons Director Michael Carvajal, testifying before the Senate’s Permanent Subcommittee on Investigations, insisted he had been shielded from problems by his underlings — even though he’d been copied on emails, and some of the troubles were detailed in reports generated by the agency’s headquarters.

Carvajal, who resigned in January and is set to be replaced next week by Oregon’s state prison director Colette Peters, blamed the size and structure of the Bureau of Prisons for his ignorance on issues such as inmate suicides, sexual abuse, and the free flow of drugs, weapons and other contraband that has roiled some of the agency’s 122 facilities.

From Courthouse News Service, "Marijuana decriminalization takes center stage at Senate hearing":

[Senator Cory] Booker, chairman of the subcommittee and the only Black senator on the Senate Judiciary Committee, said that the federal criminalization of cannabis has “miserably failed” and has led to a “festering injustice” of selectively enforced drug laws disproportionately targeting Black and brown communities.  Nationally, according to a 2020 report by the ACLU, a Black person is nearly four times more likely to be arrested for possession of marijuana than a white person, despite the fact that marijuana use is equally common among racial groups. “Cannabis laws are unevenly enforced and devastate the lives of those most vulnerable,” Booker said during the Tuesday hearing....

Republican Senator Tom Cotton of Missouri hit out against the legislation, alleging it “would wipe clean the criminal records of illegal alien traffickers.”  “When these criminals trafficked marijuana, they broke the law. Whether some find that law unfashionable or even unfair, what they did was illegal,” Cotton said.

Weldon Angelos, who was sentenced to 55 years in prison for possessing several pounds of marijuana as well as a firearm and was later pardoned by former President Donald Trump, told the committee that expungement is a critical part of the legislation in order to address what he sees as a racially motivated ban on marijuana.  “Each arrest, prosecution, conviction and sentence makes the world a little bit smaller for those bearing the modern scarlet letter,” Angelos said, referring to what it’s like to live with a drug conviction....

Edward Jackson, chief of the Annapolis Police Department, testified in support of the bill, saying “there is nothing inherently violent” about cannabis.  Jackson asserted that decriminalization would both improve community trust in police and allow officers to focus on higher priority and violent crimes.  “I have spent far too much time arresting people for selling and possessing cannabis,” Jackson said.

Spotlighting the "unheard-of decline in Black incarceration"

Keith Humphreys and Ekow Yankah have this notable new Chicago Tribune commentary headlined "The unheard-of decline in Black incarceration." This piece should be read in full, and here are excerpts:

Two years after George Floyd’s murder, protest-filled streets and countless invocations of a “racial reckoning,” public backlash and boredom have led many people to despair that the criminal justice system will never change.  But that dispiriting illusion is false, maybe even dangerous.  After generations of soul-crushing mass incarceration, African Americans have cause for hope: The Black imprisonment rate is at a 33-year low, having fallen to about half its level of a generation ago. But an inadvertent collaboration of ideological adversaries makes the decline of Black incarceration unspeakable.

On the one hand, the good news is hidden by racism. The narrative of inherent Black violence and immorality has been used to terrify white people and justify the oppression of Black people for centuries. As a Media Matters study demonstrated, if a criminal suspect is Black, the case is more likely to be covered on television news. Social media platforms greatly magnify the distortion. Within the narrative of inherent Black criminality, the decline in Black incarceration seems an impossibility: Black people must be in prison because that is where they belong. And even the racists who are aware of the decline in Black imprisonment may decide to keep silent — the truth is less important than the social or political gain offered by continual whispers of the Black boogeyman.

Anti-racist advocates oppose this narrative, emphasizing instead the structural forces that use fear of Black Americans to feed the fire of mass incarceration. But anti-racists may share racists’ unawareness or discomfort with declining Black incarceration. Black hopes have been dashed too many times to trust a change in their oppressor’s character. Other anti-racists are aware of the change but have fears of acknowledging it. White concern for racial justice has a history of evaporating. Two years after police murdered George Floyd, it is disheartening to see how quickly earnest proclamations of a “racial reckoning” withered into a commitment to abolish a pancake mix logo.

To be sure, the disproportionate incarceration of Black Americans remains a national tragedy that cannot be consigned to history if white people become complacent. Reformers understandably fear that focusing on the decline in Black incarceration (or positive comparison with white people) will further slow the dismantling of a system that still destroys countless lives. Still, assuming American racism is intractable creates a narrative that also cannot account for the decline in Black imprisonment.

Despite their competing premises, the racist and anti-racist narratives accidentally reinforce each other. They share a code of silence about Black de-incarceration that misleads Americans about the current racial realities of mass incarceration. In the absence of corrective information from journalists and activists, most people assume incorrectly that prisons continue to gobble up the lives of an increasing number of African Americans.

No matter our politics, we should care about what is true — the Black imprisonment rate has been dropping for a generation.  Hundreds of thousands of African Americans who would have been behind bars are now free.  Callous actors will claim this is too many, and anti-racists will argue it’s too few.  But would anyone argue with a straight face that such a dramatic change in the fate of hundreds of thousands of people warrants no discussion at all?...

In a country where so many — particularly people of color — long to see images of Black excellence celebrated, stories of Black progress should be highlighted rather than buried. Without ever forgetting the work still to be done, Americans of all races should be told of the progress that has and can be won.

I am always glad to see important data about modern incarceration emphasized, though I think op-eds could be written about all sorts of data realities going largely ignored or being misunderstood in many era.  There was precious little public discourse about mass increases in US incarceration for decades, and still very few talk about the remarkable increases and decreases in federal incarceration (and caseloads) over the last 25 years.  Though there is often discourse around private prisons, relatively few highlight what a small part they play in the national incarceration map.  Demographics such as gender and age and class (often combining with racial dynamics) can vary dramatically in incarcerated populations depending on crimes and jurisdictions, and dynamic recent modern changes in urban and rural incarceration rates have also often been overlooked or underexamined.  And, of course, data lags and other factors make it hard to even know how profoundly the COVID pandemic has reshaped our incarceration levels or whether any changes brought by COVID may prove enduring.

Put slightly differently, in this context, I do not see all that many thought-out "narratives" seeking to hide or obscure key data.  Instead, I see many advocates and media with relatively little interest in data combining with a general paucity of clear and effective data resources.  That said, given the considerable attention given to racial issues in broader criminal justice narratives and elsewhere in policy debates, I am still eager to praise Professors Humphreys and Yankah for this important commentary.  But, for me, it is just one small part of a much bigger story of political rhetoric often having little interest in complicated policy data.

A few of many older and newer related prior posts:

• Notable data on racial and gender dynamics of recent changes in incarceration rates (from 2016)
• Some surprising racial realities to discover when taking a deep dive into modern mass incarceration data (from 2016)
• "Racial Disparity in U.S. Imprisonment Across States and over Time" (from 2017)
• Looking at the changing demographics of modern mass incarceration (from 2017)
• Examining gender realities and disparities in modern federal sentencing (from 2018)
• "Mass Incarceration: New Jim Crow, Class War, or Both?" (from 2018)
• Council on Criminal Justice releases new report on "Trends in Correctional Control by Race and Sex"  (from 2019)
• "A Comparison of the Female and Male Racial Disparities in Imprisonment" (from 2020)
• "The Color of Justice: Racial and Ethnic Disparity in State Prisons" (from 2021)
• New Sentencing Project fact sheet highlights rise (and recent declines) in the incarceration of women and girls (from 2022)

Notable debate over access to sentencing data as Ohio builds out new sentencing data platform

In a few posts over the last few years (linked below), I have flagged the work of some Ohio jurists and others in the development of a statewide sentencing database.  I have had the honor of playing a small role in this work, and I have found fascinating many of the challenges and debates surrounding efforts to build out the Ohio Sentencing Data Platform.  One big lurking issue all along is now spotlighted by this new local article headlined "Statewide judges’ group wants sentencing data collected under proposed database kept secret."  Here are the excerpts from a lengthy article worth reading in full: 

A group that represents Ohio’s common pleas court judges does not want the public to see data that would be collected under a proposed statewide sentencing database for fears it could be cherry-picked and lead to criticism of the courts.  The head of the Ohio Common Pleas Judges’ Association wrote in a letter to the Ohio Supreme Court’s sentencing commission last month that judges recognize the value in the creation of a database for their own use.

Judges, however, are concerned that attorneys, journalists and other organizations could selectively pull data from the database to use “as a basis to critique imposed sentences and advocate for an overhaul to Ohio’s sentencing statutes.”  “In short, the OCPJA has significant concerns that broad public accessibility to the data would negatively impact the independence of the judiciary and interfere with its discretion in sentencing decisions,” the group’s president, Morrow County Common Pleas Court Robert Hickson, wrote.

The letter urged the seven justices to scrap proposed changes to the rules of superintendence that govern the state’s courts.  That would allow the court to run the project through the sentencing commission and come up with new proposals. In the alternative, state lawmakers should pass legislation mandating the data be exempt from Ohio’s public record laws, the letter said.... Hickson wrote that the letter represents the “unanimous position” of the group’s board.  Cuyahoga County Common Pleas Court Administrative Judge Brendan Sheehan is the group’s first vice president....

Sheehan’s colleague on the bench and predecessor as administrative judge wrote a letter of his own to the Ohio Supreme Court justices in which he said the views of the state judges’ group “cannot be farther from my own.” “In my opinion, the fears and skepticism expressed in the OCPJA letter are unfounded,” Judge John J. Russo wrote.  Russo, who was elected in 2006 and served as administrative judge from 2014 to 2020, told cleveland.com and The Plain Dealer that keeping the data secret and available only to the judges was akin to creating a “secret club” and would only harm the public’s confidence in the justice system more than making it public....

Russo also said that the letter by the judges’ group does not reflect the stance of the majority of the Cuyahoga County Common Pleas Court.  The Ohio Public Defender’s Office, Ohio Bar Association, Black Lives Matter and Common Cause Ohio all urged the commission to make the data available to the public.

The leader of the Ohio Prosecuting Attorney Association expressed a similar concern that the data would not paint a complete picture of all of the factors that go into each sentencing decision, and it would be open to manipulation.  While the group stopped short of calling for the data to remain hidden from the public, it did challenge that the legislature would have to create the commission, rather than the court.

The letters are in response to the Ohio Supreme Court’s sentencing commission’s call for public comment on proposed rule changes that would create a uniform sentencing entry, a lengthy document that judges would fill out after each sentencing hearing that articulates why judges imposed each sentence.  Each county’s common pleas court uses its own system to document the sentences judges there hand down, and they vary widely.  Some courts in small, rural counties still use handwritten sentencing documents, the Supreme Court said in a 2021 article published in the court’s news letter.

The commission would take data from the document and enter it into a database kept by the court that would give those who can access it the ability to see what the average sentence each person convicted of a particular crime received in each county’s common pleas court.  The sentencing commission hopes that creating a central database for the entire state that is populated by a single, uniform document that each judge fills out will make it easier for the Ohio Department of Rehabilitation and Correction.  It would allow the prison system to keep track of the sentences each inmate is serving and prevent trial court judges from committing errors during sentencing that appellate courts would later overturn....

Ohio Supreme Court Justice Michael Donnelly, a former judge in Cuyahoga County who served on the bench alongside Sheehan and Russo, told cleveland.com and The Plain Dealer that the database will help judges make sure they’re doling out similar sentences.  “That’s not just a good idea. That’s what the law mandates now,” Donnelly said. “It’s just that, how do you do that with the lack of information and the lack of data that we have?”

Donnelly also said that the public has a right to know how their courts are operating and that he believes the data should be made public. “We all serve at the pleasure of the public,” Donnelly said of judges in state court. “Everything else about our decisions is reviewable. Why should the most important decision we make as judges, whether to incarcerate someone, be any different than any other decision we make in this system of checks and balances?”

Prior related posts:

• A notable judicial pitch for better sentencing data in the Buckeye State"
• "Making a great case for greater data to improve sentencing decision-making and sentencing systems" 
• Updating the Buckeye State's progress creating a needed felony sentencing database 

 

UPDATE:  Cleveland.com has published this notable new opinion piece authored by Judge Ronald B. Adrine under the headline "Ohio’s Black judges support public release of criminal-sentencing database information." Here are excerpts:

The Ohio Black Judges Association Inc. (OBJA) voices its strong support for the Supreme Court of Ohio’s plan to allow public access to a proposed criminal sentencing database compiled by, among other things, race, as referenced in a recent article which appeared in The Plain Dealer.  Regrettably, our support puts us at odds with the Ohio Common Pleas Judges Association, which opposes public access to the database....

Our members across the state are acutely aware of the fact that the lack of data impedes legitimate inquiry into the degree to which racial justice is, or is not, a reality in Ohio.  At minimum, the existence of an open-access criminal sentencing database will sensitize all judges who make sentencing decisions to the potential for implicit bias, where it exists, and to reassure them of their positive practices, where it does not!

The position taken by the Common Pleas Judges Association calls for worst-case speculation concerning the occasional misuse of the database, while overlooking the overwhelming benefits to be realized in the majority of situations where the database is accessed.  Aggressively promoting viable efforts to increase the public’s confidence in our courts and to seek justice system accountability for all are OBJA’s primary motivators for supporting public access to the database.

We would like to assume that the vast majority of the members of the Ohio Common Pleas Judges Association have nothing to fear from public access to their sentencing practices.  If that assumption is incorrect, then the case for creating and maintaining the database is made even stronger.

There may be legitimate reasons for racial or other disparities that have nothing to do with bias.  If that is the case, having the database will assist in identifying them. By the same token, if the sentencing practices of individual judges suggest the need for practice adjustments, then that fact should be brought to the attention of those judges and the public should be able to monitor their progress in eliminating any explicit or implicit bias uncovered.

"Carceral Intent"

The title of this post is the title of this new article authored by Danielle C. Jefferis and now available via SSRN. Here is its abstract:

For decades, scholars across disciplines have examined the stark injustice of American carceralism.  Among that body of work are analyses of the various intent requirements embedded in the constitutional doctrine that governs the state’s power to incarcerate.  These intent requirements include the “deliberate indifference” standard of the Eighth Amendment, which regulates prison conditions, and the “punitive intent” standard of due process jurisprudence, which regulates the scope of confinement.  This Article coins the term “carceral intent” to refer collectively to those legal intent requirements and examines critically the role of carceral intent in shaping and maintaining the deep-rooted structural racism and sweeping harms of America’s system of confinement.

This Article begins by tracing the origins of American carceralism, focusing on the modern prison’s relationship to white supremacy and the post-Emancipation period in U.S. history.  The Article then turns to the constitutional doctrine of incarceration, synthesizing and categorizing the law of carceral intent.  Then, drawing upon critical race scholarship that examines anti-discrimination doctrine and the concept of “white innocence,” the Article compares the law’s reliance on carceral intent with the law’s reliance on discriminatory intent in equal protection jurisprudence.  Critical race theorists have long critiqued the intent-focused anti-discrimination doctrine as incapable of remedying structural racism and inequities.  The same can be said of the doctrine of incarceration.  The law’s preoccupation with an alleged wrongdoer’s “bad intent” in challenges to the scope and conditions of incarceration makes it ill-suited to remedying the U.S. prison system’s profoundly unjust and harmful features.  A curative approach, this Article asserts, is one in which the law focuses on carceral effect rather than carceral intent, as others have argued in the context of equal protection.

Furman at 50: some recent notable coverage

As noted in this recent post, the US Supreme Court's remarkable death penalty opinion in Furman v. Georgia, 408 U.S. 238 (1972), is now a half century and I have not decided to create a series of "Furman at 50" posts.  Unsurprisingly, I am not the only one to note the Furman milestone, and here is a round-up of some recent coverage and commentary I have seen from various sources:

From the Dalton Daily Citizen, "50 years after SCOTUS ruled death penalty cruel and unusual, race factors heavily in executions"

From the Death Penalty Information Center, "DPIC Analysis Finds Prosecutorial Misconduct Implicated in More than 550 Death Penalty Reversals or Exonerations"

From The Marshall Project, "The Supreme Court Let The Death Penalty Flourish.  Now Americans are Ending It Themselves."

From Slate, "Fifty Years Ago, the Supreme Court Tried to Reduce Racial Bias in the Death Penalty. Did It Work?"

From UPI, "50 years after Furman ruling, death penalty may come down to states, experts say"

From The Washington Post, "Death penalty’s 50-year rise and fall since Supreme Court struck it down"

Related prior posts:

• Furman at 50: so much and so little
• Furman at 50: DPIC provides a census of nearly 10,000 death sentences