Sentencing Law and Policy

NC Supreme Court limits reach of repeal of state's Racial Justice Act in capital cases

Over a decade ago, North Carolina enacted a Racial Justice Act that allowed a capital defendant to seek relief on a claim that race was a significant factor in the decision to seek or impose the death penalty in his case. After nearly every person on North Carolina's death row made a claim under this statute, it was repealed by the legislature. Today the North Carolina Supreme Court in North Carolina v. Ramseur, No. 388A10 (N.C. June 5, 2020) (available here), limits the impact of this repeal. The majority opinion in this 6-1 ruling starts this way:

Defendant, Andrew Darrin Ramseur, was convicted of two counts of firstdegree murder and sentenced to death in 2010.  After his trial, defendant filed a motion seeking relief pursuant to the newly enacted North Carolina Racial Justice Act on the basis that race was a significant factor in the decision to seek or impose the death penalty in his case.  Before the trial court ruled on defendant’s motion, the General Assembly amended the Racial Justice Act in 2012 and then, in 2013, repealed the Racial Justice Act in its entirety. The trial court determined that this repeal rendered defendant’s pending motion void and therefore dismissed defendant’s Racial Justice Act claims.  Here we are asked to decide the constitutionality of the retroactive application of the repeal of the Racial Justice Act. For the reasons stated herein, we hold that applying the repeal retroactively violates the constitutional prohibition on ex post facto laws, and therefore we reverse the trial court.

The dissent by Justice Newby starts this way:

The narrow issue presented by this case is whether, as applied to defendant, legislation repealing the Racial Justice Act of 2009 (the RJA) constitutes an ex post facto law. The majority incorrectly answers this question in the affirmative.  The repeal plainly does not qualify as an ex post facto law because it left defendant in precisely the same legal situation as the one he occupied on 16 December 2007, when, according to a jury, he murdered Jennifer Lee Vincek and Jeffrey Robert Peck.  The repeal did not subject defendant to more serious or additional charges for past conduct, nor did it increase the punishment in effect on 16 December 2007.  When properly viewed, the General Assembly intended the RJA to provide a procedural mechanism by which a defendant could collaterally attack a capital sentence.  The General Assembly did not intend to make a substantive change to the death penalty sentencing law. As such, the General Assembly had the constitutional authority subsequently to amend it and repeal it.

Timely reminders that racial disparities may persist and grow even as the carceral state begins to shrink

The Marshall Project has this notable new piece about arrest rates during the COVID era under the full headline "Police Arrested Fewer People During Coronavirus Shutdowns — Even Fewer Were White: Racial disparities grew in five cities as arrests fell, according to our new data analysis."  Here are excerpts:

As protesters clash with police across the country, they are venting not only their rage about the death of George Floyd at the hands of Minneapolis police, but more broadly their frustration with decades of racial inequality in the American criminal justice system.

These inequalities persisted during the coronavirus outbreak, a new Marshall Project analysis of arrest data found. Even as crime rates fell while much of the country was ordered to shelter in place, arrest data from five U.S. cities suggests racial disparities worsened in March and April.  Across these cities, arrests of white people dropped 17 percent more than arrests of black people and 21 percent more than Hispanic people.

In March, the New York City Police Department made about 13,000 arrests, a 30-percent drop from the same month a year before. While most people in the city were confined to their homes, the changes in arrest practices did not affect residents of all races equally.  White people experienced the largest decreases in arrests, whereas arrests of black and Hispanic people dropped at a much slower rate.

New York is not an outlier. The Marshall Project’s analysis found that arrests in Los Angeles, Baltimore, Pittsburgh and Tucson, Arizona, reflected similar patterns.  As the total number of arrests plummeted through March and April, they didn't drop equally across the board. Arrests of white people decreased far more than the arrests of black and Hispanic people. Though they were much fewer to begin with, arrests of Asians, Native Americans and people of other backgrounds declined faster than arrests of white people.

These disparities in arrests took place during the same time period when some police departments came under fire for how they enforce social distancing orders. In New York City, more than 80 percent of people arrested for violating those orders were black. In major cities across Ohio, black residents were more than four times as likely to be charged with violating stay-at-home orders than their white peers. 

In Los Angeles, New York and Tucson, three cities that break down arrests by the severity of the alleged offense, The Marshall Project found that with each racial and ethnic group, misdemeanor arrests plummeted during the early weeks of the pandemic, while felony arrests, for the most severe crimes, declined slightly.  For example, from February to March, the Los Angeles Police Department made 1,000 fewer arrests for misdemeanor charges, such as driving under the influence or traffic violations. Meanwhile, arrests for felony charges, like aggravated assault and rape, dropped by 100.

These COVID-era data remind me of the data we often now see on marijuana-related arrests in the wake of legalization or decriminalization, where the total number of arrests decline (often significantly) but with racial disparities persisting or even growing.  Here are just a few recent studies on this topic via my coverage at my Marijuana Law, Policy & Reform blog:

• New research on racial disparities in traffic stops and searches highlights how marijuana reform reduces searches (but not racial disparities)
• "The heterogeneous effect of marijuana decriminalization policy on arrest rates in Philadelphia, Pennsylvania, 2009–2018"
• Persistently discouraging news about persistent racial disparities in marijuana enforcement
• Interesting data on marijuana arrests in DC after 2014 legalization initiative

Also worth recalling in this context is the notable reality that a number of US states with relatively smaller prison populations often have the most racially disparate prison populations.  This 2016 Sentencing Project report on the topic detailed that the states with the largest disparities in their prison population between whites and blacks were Iowa, Minnesota, New Jersey, Vermont, and Wisconsin.  Notably, all of these states have well below the national average in per-capita prison population.

These numbers do not surprise me because I often notice, in both policies and practices, how disparities and discrimination can find express in the exercise of leniency or mercy.  I see this especially in death penalty administration, when so many different actors in the system (prosecutors, judges, jurors) have formal and/or informal authority to prevent a murderer from being subject to the death penalty.  Disparities can and will result merely not from legal actors being distinctly punitive toward certain defendants, but also from these actors being distinctly willing to act leniently or mercifully toward only certain other defendants.  Other sentencing systems, where prosecutorial charging and bargaining discretion in turn shape judicial sentencing discretion, also surely reflect differential expressions of leniency as well as differential expressions of punitiveness.

I bring all this up not too create cynicism or fatalism about what legal and social change might achieve, but rather to highlight how much work there is to do even as we make progress in reducing the scope and impact of mass criminalization, mass punishment and mass incarceration.  In recent years, I have grown ever more hopeful about the potential, politically and practically, to shrink the carceral state in America.  But the events of this past week provide a critical reminder of our need to keep our eyes on all the prizes that we are aspiring to achieving in this critically important work.

Weekend round-up of array of prison stories and commentary in incarceration nation

As I continue to follow closely the news and commentary surrounding prison and prisoners during this COVID-19 era, I am reminded again and again how jails and prisons (and all the people therein) are inextricably woven into the broader fabric of all of our communities.  Here is a Saturday round-up of a few recent headlines that in various ways reflect this reality:

• "California prison staff posted ‘racist’ and ‘extremely hurtful’ comments about George Floyd’s killing, CDCR secretary says"

• "Texas jail says guards didn’t notice inmate giving birth"

• "Is COVID-19 Falling Harder on Black Prisoners? Officials Won’t Tell Us."

• "Prisoners May Hold the Key to Releasing Us from Coronavirus Lockdown"

• "Pandemic-Era Prison Releases a ‘Tipping Point’ for Reformers"

• "Coronavirus shows us the danger and inanity of our prison state"

• "In Prison, Even Social Distancing Rules Get Weaponized"

• "National law enforcement leaders urge the release, transfer of inmates at federal prison in Ohio"

"Not Letting Felons Vote Damages Democracy for All Citizens"

The title of this post is the headline of this new Verdict commentary authored by Austin Sarat.  Here are excerpts:

On Sunday, a Florida federal district court struck down a state law requiring people with serious criminal convictions to pay court fines and fees before they can register to vote.  The court found that such a requirement would amount to a poll tax and discriminate against those who cannot afford to pay.  That decision is the latest salvo in two battles: Florida’s recent effort to restore voting rights to felons, and America’s long history of using disenfranchisement as a collateral consequence of criminal punishment.

The latter has a shameful history.  This nation’s longstanding hostility toward criminals and convicts bubbles over in an 1871 Virginia court decision that described prisoners as “slaves of the state.”  As a consequence of his crime, a prisoner has “not only forfeited his liberty, but all his personal rights except those which the law in its humanity accords to him.”

In 2018 the Florida electorate voted to repudiate that history when 65% of the voters supported a proposal to amend the state constitution so that convicted felons who complete “all terms of sentence” could vote. Several months later, the heavily Republican state legislature tried to limit the impact of that amendment. It passed a bill saying that “all terms of sentence” included the discharge of financial obligations such as fines, fees and restitution.  Sunday’s court decision enjoined the application of that law....

Because of the current racial composition of America’s prisons and jails, felony disenfranchisement has had a much greater impact on the democratic participation of citizens of color than that of white citizens.  Yet, in 2002, a different federal court in Florida dismissed a lawsuit claiming that felony disenfranchisement was racially discriminatory....

Florida’s long history of felony disenfranchisement is hardly unique.  The practice of removing voting rights from people convicted of crimes can be traced back to the colonial practice of treating criminals as civilly dead.  And soon after the American Revolution, felony disenfranchisement was written into the law of many of the newly formed states.

Debates about slavery and the aftermath of the Civil War gave added impetus to this practice.  States passed laws in the late 1860s to disenfranchise felons and, in so doing, test the meaning of the Fifteenth Amendment’s extension of voting rights. In the post-war South, white southern Democrats used felony disenfranchisement to deny those rights, invoking historical similarities between the legal statuses of slaves and convicts as justification.

Today, according to a report by the Sentencing Project, nearly 40% of the 6.1 million people disenfranchised by a felony conviction are black....  Currently 48 states and the District of Columbia do not allow felons to vote while they are serving time in prison.  Thirty-one states prevent people on parole or probation from casting ballots.  Four states permanently bar ex-inmates from voting and do not allow restoration of that right, while eight others disenfranchise only people who have committed particularly egregious kinds of crimes.

Sunday’s court decision striking down new barriers erected to limit the number of Florida’s previously disenfranchised population from voting is admirable, but much more needs to be done to ensure that those who commit serious crimes can exercise one of the essential rights of citizenship — the right to vote....  Moreover, if this nation wants prisoners, when they leave  confinement, to return to be productive, well-integrated members of society, it should make sure they have a stake in that society.  Voting gives them that stake.  Ending felony disenfranchisement also would help break the legacy of slavery which continues to haunt imprisonment in the U.S.

The entire country should follow the examples of Maine and Vermont, the only two states that allow people to vote from behind bars and after they are released.  They have done so for more than two hundred years. Canada, Denmark, Spain, and 13 other democracies also permit felons to exercise the franchise even when they are serving time.  They recognize that voting is a right of adult citizens, not a privilege accorded only to some.  Last year legislators in Massachusetts, Hawaii, New Mexico, and Virginia introduced bills to allow all prisoners to vote, a position endorsed by Senator Bernie Sanders during his presidential campaign.

Dissenting in the Richardson case, Justice Thurgood Marshall wisely noted that there is no reason to believe that “felons have any less interest in the democratic process than any other citizen. Like everyone else, their daily lives are deeply affected and changed by the decisions of government.”  And, Justice Marshall was right to remind all of us that the right to vote “is the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.”

Full issue Columbia Human Rights Law Review devoted to capital sentencing practices and problems

A helpful reader alerted me to the latest issue of the Columbia Human Rights Law Review, which has these nine terrific-looking article about the ugly realities of capital sentencing past and present.  Here are the titles and links:

Symposium: Furman’s Legacy: New Challenges to the Overbreadth of Capital Punishment by Jeffrey Fagan

Local History, Practice, and Statistics: A Study on the Influence of Race on the Administration of Capital Punishment in Hamilton County, Ohio (January 1992-August 2017) by Catherine M. Gross, Barbara O'Brien, and Julie C. Roberts

Hurricane Florida: The Hot and Cold Fronts of America’s Most Active Death Row by Hannah L. Gorman and Margot Ravenscroft

Valuing Black Lives: A Case for Ending the Death Penalty by Alexis Hoag

Double Duty: The Amplified Role of Special Circumstances in California’s Capital Punishment System by Mona Lynch

A Systematic Lottery: The Texas Death Penalty, 1976 to 2016 by Scott Phillips and Trent Steidley

Race, Ethnicity, and the Death Penalty in San Diego County: The Predictable Consequences of Excessive Discretion by Steven F. Shatz, Glenn L. Pierce, and Michael L. Radelet

Hidalgo v. Arizona and Non-Narrowing Challenges by Sam Kamin and Justin Marceau

Restoring Empirical Evidence to the Pursuit of Evenhanded Capital Sentencing by Joseph J. Perkovich

"The Paradox of Recidivism"

The title of this post is the title of this interesting-looking new article authored by Christopher Lewis and just posted to SSRN.  Here is its abstract:

The idea that we should respond more severely to repeated wrongdoing than we do to first-time misconduct is one of our most deeply held moral principles, and one of the most deeply entrenched principles in the criminal law and sentencing policy. Prior convictions trigger, on average, a six-fold increase in the length of punishment in U.S. states that use sentencing guidelines.  And three-strikes, habitual offender, and career criminal laws mandate extremely harsh penalties for repeat offending.  Most of the people we lock up in the U.S. — especially those who are Black or Latino, and poor — have at least one prior conviction. The “recidivist sentencing premium” is thus one of the main determinants of race- and class-based disparity in our prisons, and of the overall size of our incarcerated population.

This article shows, counterintuitively, that given the current law and policy of collateral consequences, and the social conditions they engender, judges and sentencing commissions have moral reason to do exactly the opposite of what they currently do: impose a recidivist sentencing discount, rather than a premium. Prior convictions should be treated as a presumptive mitigating factor, rather than an aggravating one.  This thesis goes against the grain of criminal law and policy dating back as far as we know it, virtually the entire scholarly literature, and millenia of social tradition.  But this article shows that it follows from a number of quite ordinary normative and empirical premises. The conclusion might be politically unpalatable, but it is morally unavoidable.

"Deep Disadvantage, Blameworthiness, and Sentencing"

The title of this post is the title of this new paper authored by Michael Tonry just recently posted to SSRN. Here is its abstract:

Arguments in favor of a “social adversity” or “rotten social background” defense are substantially stronger than those against.  People disagree in principle whether an affirmative defense of deep disadvantage, paralleling the insanity defense, should be recognized and whether judges should routinely mitigate the severity of sentences imposed on deeply disadvantaged offenders.  The defense should be recognized. It would be unlikely often to result in acquittals but it would strengthen many defendants’ positions in plea negotiations. Mitigation of punishment should be routine.  Few credible arguments can be made that a deeply disadvantaged background is not a material characteristic that should be taken into account in sentencing.  Unfortunately, informal mitigation of punishments is not enough. The severity and rigidity of American sentencing laws often deny judges the necessary authority.  The moral challenges presented by deeply disadvantaged offenders cannot adequately be addressed without creation of a new affirmative defense.

Effective overview of highlights (or lowlights) of latest BJS data on prisons and jail at end of 2018

I noted in this post the release of new reports and data from Bureau of Justice Statistics detailing US incarceration levels as of the end of 2018.  The folks at the Prison Policy Initiative now have this new posting on the BJS data titled "Stagnant populations and changing demographics: what the new BJS reports tell us about correctional populations."  I recommend the full piece, and the subtitle highlights its themes: "New BJS reports show that jail and prison populations remain stubbornly high despite decreasing crime rates, and point to the shifting demographics of correctional populations."  Here are excerpts:

The COVID-19 crisis is illustrating yet another danger of our overreliance on incarceration, as jails and prisons are rapidly becoming coronavirus hotspots.  As correctional facilities around the country grapple with the crisis, two new Bureau of Justice Statistics (BJS) reports, Jail Inmates in 2018 and Prisoners in 2018, provide crucial details about our nation’s correctional populations. The reports highlight the slow pace of decarceration over the past decade, the persistence of pretrial detention despite calls for reform, and the changing demographics of prisons and especially of jails....

Both of the new BJS reports boast of declining correctional populations, but a closer look at the data reveals the pace of decarceration is still far too slow.  Prisoners in 2018 reports that prison populations decreased 9% between 2008 and 2018, meaning prison populations, on average, declined by less than 1% each year.  As the nation with the highest incarceration rate in the world, such small declines represent a national failure.

The rate of decarceration in jails is similarly slow, and jail populations have even ticked up in recent years.  Although Jail Inmates in 2018 and its press release boast that the “jail incarceration rate decreased 12% from 2008 to 2018,” most of that drop happened over five years ago; the jail population barely budged between 2015 and 2018.  There were actually over 18,000 more people in jail on an average day in 2018 than in 2015 -- despite the fact that the overall crime rate declined 11% over the same period.

Even worse, the growth of jail populations over those years can largely be attributed to an increase in the number of people held pretrial.  The vast majority of people in jails have not been convicted and are simply stuck in jail waiting for their day in court, and their number has increased by 6% since 2015, while the number of people in jail who were convicted declined by 9%.  That means pretrial detention has continued to drive all of the net jail growth in recent years, despite the fact that counties around the country are reforming their bail systems to reduce pretrial incarceration. Clearly, these measures have not gone far enough.

Another key takeaway from the recent reports: There have been striking demographic shifts in jail populations and, to a lesser extent, in prison populations.  The number of women incarcerated in jails has increased, and while the women’s prison population is slowly falling, the decarceration of men in prisons continues to outpace that of women. Racial disparities remain persistent, but have actually narrowed in both prisons and jails.  Finally, we see that rural jails have grown while urban jail populations have taken more significant steps toward decarceration.

"A Tale of Two Countries: Racially Targeted Arrests in the Era of Marijuana Reform"

The title of this post is the title of this big new ACLU report spotlighting the persistent problem with racially skewed marijuana enforcement patterns.  This press release reviews the basics of a 100+ page report that I am looking forward to reviewing in depth:

The American Civil Liberties Union today released a new report showing that Black people are 3.64 times more likely than white people to be arrested for marijuana possession despite comparable marijuana usage rates. Additionally, although the total number of people arrested for marijuana possession has decreased in the past decade, law enforcement still made 6.1 million such arrests over that period, and the racial disparities in arrest rates remain in every state.

The report, A Tale of Two Countries: Racially Targeted Arrests in the Era of Marijuana Reform, details marijuana possession arrests from 2010 to 2018, and updates our unprecedented national report published in 2013, The War on Marijuana in Black and White. The disturbing findings of this new research show that despite several states having reformed marijuana policy over the last decade, far too much has remained unchanged when it comes to racial disparities in arrests.

Key findings include:

• Law enforcement made more than 6.1 million marijuana-related arrests form 2010-2018. In 2018 alone, there were almost 700,000 marijuana arrests, which accounted for more than 43 percent of all drug arrests. In 2018, law enforcement made more marijuana arrests than for all violent crimes combined.
• Despite legalization in a number of states, it is not clear that marijuana arrests are trending downward nationally. Arrest rates have actually risen in the past few years, with almost 100,000 more arrests in 2018 than 2015.
• In every state, and in over 96 percent of the counties examined, Black people were much more likely to be arrested than white people for marijuana possession. Overall, these disparities have not improved. On average, a Black person is 3.64 times more likely to be arrested for marijuana possession than a white person, even though Black and white people use marijuana at similar rates. In 10 states, Blacks were more than five times more likely to be arrested.
• In states that legalized marijuana, arrest rates decreased after legalization, however racial disparities still remained.

A Tale of Two Countries: Racially Targeted Arrests in the Era of Marijuana Reform comes at a time when the criminal legal system is overwhelmed by the public health crisis presented by COVID-19 that demands expedited decarcercal action to safeguard the lives of those incarcerated in and employed by jails and prisons. The reforms recommended in this report provide a roadmap for reducing marijuana arrests and criminalization as governors, prosecutors, judges, and other stakeholders across the country grapple with the harms presented by the public health crisis and take steps to release people from jails and prisons.

“Many state and local governments across the country continue to aggressively enforce marijuana laws, disproportionately targeting Black communities,” said Ezekiel Edwards, director of the Criminal Law Reform Project at the ACLU and one of the primary authors of the report. “Criminalizing people who use marijuana needlessly entangles hundreds of thousands of people in the criminal legal system every year at a tremendous individual and societal cost. As a matter of racial justice and sound public health policy, every state in the country must legalize marijuana with racial equity at the foundation of such reform.”

To combat the racial disparities rampant in marijuana-related arrests, the ACLU is calling not only for an end to racialized policing, but also for full legalization of marijuana use and possession and specific measures to ensure legalization efforts are grounded in racial justice. This includes pressing for passage of the MORE Act, which  aims to correct historical injustices of the failed War on Drugs that has terrorized Black communities by decriminalizing marijuana at the federal level, reassessing marijuana convictions, and investment in economically disadvantaged communities.

"Women in Prison: Seeking Justice Behind Bars"

The title of this post is the title of this nearly 300-page(!) "briefing report" released last week by the United States Commission on Civil Rights. Here is a brief overview of the report from the transmittal letter that fronts it:

This report examines the civil rights of women in United States prisons.  The population of women in prison has increased dramatically since the 1980s, and this growth has outpaced that of men in prison, yet there have been few national-level studies of the civil rights issues incarcerated women experience.  The Commission studied a range of issues that impact incarcerated women, including deprivations of women’s medical needs that may violate the constitutional requirement to provide adequate medical care for all prisoners; implementation of the Prison Rape Elimination Act (PREA); and the sufficiency of programs to meet women’s needs after release.  The Commission also examined disparities in discipline practices for women in prison compared with men, and the impacts of incarcerated women being placed far from home or having their parental rights terminated.

The Commission majority approved key findings including the following: Many prison policies and facilities are not designed for women or tailored to their specific needs. Rather, many policies were adopted from men’s prison institutions without evaluating their application to women’s prison institutions.  Incarcerated women report extremely high rates, and much higher rates than men, of histories of physical, sexual, and mental trauma.  Notwithstanding federal statutory legal protections such as the Civil Rights of Institutionalized Persons Act (CRIPA) and the Prison Rape Elimination Act (PREA), aimed at protecting incarcerated people, many incarcerated women continue to experience physical and psychological safety harms while incarcerated and insufficient satisfaction of their constitutional rights.  Department of Justice (DOJ) litigation against prison systems involving sexual abuse among other wrongs has secured important changes to safeguard incarcerated women’s rights.

Classification systems that are not calibrated for gender-specific characteristics have been shown to classify incarcerated women at higher security requirement levels than necessary for the safety and security of prisons; women classified at higher security levels may receive fewer vocational and educational, community placement, and reentry opportunities than they would have received had they been classified at lower security levels.  Many incarcerated women are placed at facilities far from their families, limiting visitation opportunities.  Many prison policies do not prioritize family visits, such as by permitting extremely limited family visitation hours that often do not reflect distances visiting family must travel.

Some prisons provide adequate healthcare specific to women, such as gynecological and prenatal care, while others do not.  The high rates at which incarcerated women report past trauma results in the need for mental health care and treatment while incarcerated. Sexual abuse and rape remain prevalent against women in prison. Incarcerated women who report sexual assault have experienced retaliation by their institutions and prison personnel in violation of the law.

The Commission majority voted for key recommendations, including the following: DOJ should continue to litigate enforcement of the civil rights of incarcerated women in states that violate these mandates and the rights of incarcerated women.  Prison officials should adopt validated assessment tools, currently available, to avoid inaccurately classifying incarcerated women to a higher security level than appropriate.  Prison officials should give strong preference to placing incarcerated women in as close proximity as possible with location of their family, provide free video and lowcost phone services to incarcerated persons, and not ban in-person visits for non-safety reasons.

Prison officials should implement policies to address women’s specific healthcare needs, including gynecological and prenatal care, as is constitutionally required. Prisons should have adequate mental health care staff and treatment programs available to meet the needs of the many incarcerated women with mental health challenges, such as past trauma.  Congress should enact stricter penalties for non-compliance with PREA standards focused on inmate safety and consistently appropriate funding sufficient to ensure correctional agencies comply with PREA.  Prisons should implement evidence-based, trauma-informed discipline policies to avoid harsh punishments for minor infractions, and recognizing the significant harms that can result from placement in restrictive housing.  Prisons should ensure restrictive housing is not used against people of color, LGBT people, and people with mental health challenges in a discriminatory manner.

"From Decarceration to E-Carceration"

I am sorry to have missed this article by Chaz Arnett with the title used for the title of this post when it was first posted to SSRN some months ago, but I am glad to have seen it as recently revised. Here is its abstract:

Each year, millions of Americans experience criminal justice surveillance through electronic ankle monitors. These devices have fundamentally altered our understanding of incarceration, punishment, and the extent of the carceral state, as they are increasingly offered as moderate penal sanctions and viable solutions to the problem of mass incarceration. They purportedly enable decarceration, albeit with enhanced surveillance in the community as the compromise. Proponents of the devices tout the public safety and cost benefits while stressing the importance of depopulating prisons and returning individuals to their communities. In recent years, an oppositional movement has developed, focused on highlighting the social harms of electronic monitoring as part of a burgeoning e-carceration regime, where digital prisons arise, not as substitutes to brick and mortar buildings, but as net-widening correctional strategy operationalized to work in tandem.

This Paper examines this debate on the effectiveness of electronic ankle monitors using a social marginalization framework. It argues that the current scholarly debate on the use of electronic ankle monitors is limited because it fails to consider the potential harm of social marginalization, particularly for historically subordinated groups subjected to this form of surveillance. It uses system avoidance theory to elucidate the argument that intensive criminal justice surveillance has the counterproductive effect of causing those subjected to surveillance to avoid institutions necessary for adequate reintegration and reduction in recidivism. It offers a theory of the carceral state as malleable, extending beyond prison walls, expanding our carceral reality, and placing great strains on privacy, liberty, and democratic participation. Ultimately, it stresses that a move from decarceration to e-carceration, or from mass incarceration to mass surveillance, will likely fail to resolve, and may exacerbate, one of the greatest harms of mass incarceration: the maintenance of social stratification. Thus, adequately addressing this challenge will demand a more robust and transformative approach to criminal justice reform that shifts a punitive framework to a rehabilitative one focused on proven methods of increasing defendants’ and former offenders’ connections to their community and civic life, such as employment assistance programming, technical and entrepreneurial skill development, supportive housing options, and mental health services.

"Remorse and Judging"

The title of this post is the title of this new book chapter authored by Susan Bandes now available via SSRN.  Here is the abstract:

This chapter focuses on the judicial evaluation of remorse.  It is an article of faith that judges can and should evaluate remorse when determining sentence.  Although the dynamics of this evaluation are understudied, the existing literature helps illuminate the assumptions judges employ and the dangers and limitations of those assumptions.  Judges rely on evaluation of demeanor and body language and on allocution, and their interpretations are rife with implicit assumptions and unstated rules about what counts as remorse. 

Many of these assumptions (for example the link between remorse and decreased recidivism and the possibility of assessing remorse from demeanor) lack evidentiary support. These assumptions and implicit rules vary widely from judge to judge.  They often fail to account for the influence of race, ethnicity, gender and social class on the expression and evaluation of remorse.  Moreover, they put a premium on the willingness to plead guilty, and to do so at the earliest possible opportunity.  The chapter draws upon the few existing empirical studies on the topic and identifies areas that require further study.

"Fees, fines and ability to pay"

The title of this post is the title of this new Hill commentary authored by Lauren-Brooke Eisen and Matthew Menendez of the Brennan Center for Justice. Here is how the piece starts and ends:

In far too many criminal courts across the country, judges impose fees and fines on defendants without consideration for their ability to pay.  The result: people struggling financially are saddled with debt that makes it nearly impossible for them to support themselves and their families.  The devastating consequences of these practices are gaining national attention.  In fact, five of the current Democratic presidential candidates have joined the growing outcry against this approach and are trying to address the problem through their criminal justice policy platforms.

Despite promising momentum for change, some government officials hold on, partly under the belief that they need fines and fees to generate revenue.  But a hard look at the numbers shows that collecting fees and fines is highly inefficient and costs much more than many policymakers ever realized.

Compared to fines issued with sentences, court fees tend to slip past the public’s attention.  Depending on where you live, if you are arrested for low-level offenses such as loitering or possessing a small amount of drugs, you could get charged dozens of fees: a fee for filing your paperwork, a fee for the court to figure out if you qualify for a public defender, a fee for your public defender’s services, a universal fee wholly unrelated to your case (like the one that funds a DNA program), a court technology fee, and more.

We studied fees and fines, observing more than 1,000 hearings in three states and found that, in most places, courts rarely consider a defendant’s finances and what he or she might be able to pay before requiring them to pay mandatory court fees and fines [report available here and here].  For people who can’t afford the amount they owe, they become debtors whose bill collectors are judges and the police.

We assessed the costs for state and local governments to enforce and collect fees and fines by analyzing data from 10 counties in Florida, New Mexico, and Texas, as well as state-level data for the three states.  The waste that we discovered tell us that every city, county, and state government should look hard at their fees and fines policies.  The net gain might be far less than they have imagined, the losses far more damaging.

Because many low-income people can’t pay their debt, billions of dollars in fines and fees go unpaid every year while these debts hang over people, spiraling out of control as penalties pile up.  In fact, our report found that from 2012 to 2018, Florida, New Mexico, and Texas amassed a total of almost $1.9 billion in uncollected debt.  This debt is made up of millions of tiny debts owed by people who may never be financially equipped to pay them off....

State and local governments can stop placing unjust burdens on poor people and their families.  They can start to do so by enacting legislation to eliminate the fees that the court imposes on criminal defendants.  In many places, the courts rely primarily on fees for funding, as opposed to taxes, despite the fact that they operate in service to the public as a whole. States and localities should make general tax revenue the primary source of funding for the courts, rather than fees.

States should also reform how they impose fines.  To guard against assessing fines that defendants can’t afford, states should require judges to evaluate a person’s ability to pay and then apply a sliding scale to determine the amount.  After digging into the numbers, we can add fiscal irresponsibility and growing burdens to those most impacted by these debts to the reasons to dump these practices.  Every jurisdiction using fines and fees must stop and do the math — all of it.

US Sentencing Commission publishes latest FIRST STEP/FSA resentencing data

The US Sentencing Commission today released the latest in a series of data reports titled "First Step Act of 2018 Resentencing Provisions Retroactivity Data Report."  The introduction to the report provides this context and overview:

On December 21, 2018, the President signed into law the First Step Act of 2018.  Section 404 of that act provides that any defendant sentenced before the effective date of the Fair Sentencing Act of 2010 (August 3, 2010) who did not receive the benefit of the statutory penalty changes made by that Act is eligible for a sentence reduction as if Sections 2 and 3 of the Fair Sentencing Act of 2010 were in effect at the time the offender was sentenced.  The First Step Act authorizes the defendant, the Director of the Bureau of Prisons, the attorney for the Government, or the court to make a motion to reduce an offender’s sentence.

The data in this report represents information concerning motions for a reduced sentence pursuant to Section 404 of the First Step Act which the courts have granted. The data in this report reflects all motions granted through December 31, 2019 and for which court documentation was received, coded, and edited at the Commission by January 29, 2020.

These new data from the USSC show that 2,387 prisoners have been granted sentence reductions, and that the average sentence reduction was 71 months of imprisonment among those cases in which the the resulting term of imprisonment could be determined.  Though this data is not exact and may not be complete, it still seems sound to state that this part of the FIRST STEP Act, by shortening nearly 2400 sentences by nearly 6 years, has now resulted in over 14,000 prison years saved(!).

Of course, as I have noted before, the FSA retroactivity provision of the FIRST STEP Act was only a small piece of the legislation.  But these latest data show yet again how this small piece has had huge impact that can be measure in lots of years of lots of lives.  And, of course, people of color have been distinctly impacted: the USSC data document that over 91% of persons receiving FSA sentence reductions were Black and more than another 4% were Latinx.

"Black Deaths Matter: The Race-of-Victim Effect and Capital Punishment"

The title of this post is the title of this new essay authored by Daniel Medwed now available via SSRN. Here is its abstract:

The racial dimensions of the death penalty are well-documented.  Many observers assume this state of affairs derives from bias—often implicit and occasionally explicit — against black defendants in particular.  Research points to an even more alarming factor.  The race of the victim, not the defendant, steers cases in the direction of death.  Regardless of the perpetrator’s race, those who kill whites are more likely to face capital charges, receive a death sentence, and die by execution than those who murder blacks.  This short Essay adds a contemporary gloss to the race-of-victim effect literature, placing it in the context of the Black Lives Matter movement and showing how it relates to the broader, systemic devaluation of African-American lives.

"Normalizing Injustice: The Dangerous Misrepresentations that Define Television’s Scripted Crime Genre"

The title of this post is the title of this interesting new Color of Change report. Here is an excerpt from the report's introduction:

Police procedurals and legal dramas are the bread and butter of primetime lineups, drawing the largest audiences in the U.S., in addition to hundreds of millions of viewers annually around the world.  These series communicate about the criminal justice system as much as any other popular medium, if not more.  Thus, they likely play some role in shaping viewers’ fundamental understanding of right and wrong, the role of race and gender in society, how the justice system works and what we should and shouldn't expect from both the system and the people in it.

There are many possible consequences of inaccurate and distorted portrayals. For instance, when these series neglect to depict or acknowledge unjust racial disparities in the criminal justice system — as this report demonstrates most of them do — viewers may be more likely to believe that these problems no longer plague the system (or perhaps never have) in real life.

When they depict police, prosecutors, judges and other players in the system as justified and correct in their intentions and actions, and depict the reality of the system as fair and effective, viewers may be more likely to believe the system is working effectively in real life; moreover, they may become skeptical of those who question its fairness.  If series portray white people as victims of crime more often than others, they may affect the level of empathy that viewers feel for the lives of one group of people relative to another.  Such portrayals can influence whom we think of as the face of crime victims, and even what justice for crime victims should look like.

When the beloved police, prosecutors and other criminal justice professional characters on these series break the rules or violate someone’s rights, viewers may see their actions as normal and rightful if there is no depiction of the many harms their rulebreaking behavior causes: short-term and long-term physical harms, financial harms, life trajectory harms, psychological harms, the many different harms of being denied freedom in numerous forms....

The cumulative effects of these and other inaccurate portrayals — whether related to women, people of color or crime and criminal procedure itself — may build an unfounded public faith in the status quo, and even turn the viewing public against urgently needed reforms that criminal justice experts have recommended as necessary, just and effective.

"'Ban the Box' Policies and Criminal Recidivism"

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

Employment has long been seen as a mechanism for reducing criminal recidivism. As such, many states and municipalities have tried to increase the employment prospects of ex-offenders through "Ban the Box" (BTB) policies, making it illegal to ask about an individual's criminal history on a job application.  There are, however, questions as to how effective these policies are at helping ex-offenders successfully stay out of prison.  In addition, recent research has shown that BTB policies may lead employers to racially discriminate in hiring.  Using administrative prison data, this paper examines the direct effect of BTB policies on rates of criminal recidivism.  I find that while BTB policies don't appear to reduce criminal recidivism overall, these policies may be exacerbating racial disparities.  In particular, I show that being released into a labor market with a BTB policy is associated with higher rates of recidivism for black ex-offenders, with little to no effect for white ex-offenders.  This result is robust to a number of specifications and sub-samples.

"Who challenges disparities in capital punishment?: An analysis of state legislative floor debates on death penalty reform"

the title of this post is the title of this new article just published in the Journal of Ethnicity in Criminal Justice and authored by David Niven and Ellen Donnelly.  Here is its abstract:

In McCleskey v. Kemp, the Supreme Court tasked legislatures, rather than courts, with redressing racial disparities in capital punishment.  Elected officials must then decide to amend disparate death penalty procedures.  Analyzing floor debates, we explore why legislators make arguments for racial disparity or fairness in deliberations of death penalty reforms.  Results suggest views on race and the death penalty are products of partisanship, constituency composition, and the race/ethnicity of legislators, with the interaction of these factors being most predictive of argumentation.  Findings illuminate who leads discourse on fairness in criminal justice and the limits of legislative responses to racial injustice.

PPI releases "Youth Confinement: The Whole Pie 2019"

The Prison Policy Initiative has today posted the latest of its remarkable pie charts and reports providing an extraordinary look at confinement realities in the United States.  This new report by Wendy Sawyer is focused on youth confinement, and here is part of the report's introductory text and some other excerpts (along with the great infographic):

On any given day, over 48,000 youth in the United States are confined in facilities away from home as a result of juvenile justice or criminal justice involvement. Most are held in restrictive, correctional-style facilities, and thousands are held without even having had a trial. But even these high figures represent astonishing progress: Since 2000, the number of youth in confinement has fallen by 60%, a trend that shows no sign of slowing down.

What explains these remarkable changes? How are the juvenile justice and adult criminal justice systems different, and how are they similar? Perhaps most importantly, can those working to reduce the number of adults behind bars learn any lessons from the progress made in reducing youth confinement?

This report answers these questions, beginning with a snapshot of how many justice-involved youth are confined, where they are held, under what conditions, and for what offenses. It offers a starting point for people new to the issue to consider the ways that the problems of the criminal justice system are mirrored in the juvenile system: racial disparities, punitive conditions, pretrial detention, and overcriminalization. While acknowledging the philosophical, cultural, and procedural differences between the adult and juvenile justice systems, the report highlights these issues as areas ripe for reform for youth as well as adults.

This updated and expanded version of our original 2018 report also examines the dramatic reduction in the confined youth population, and offers insights and recommendations for advocates and policymakers working to shrink the adult criminal justice system....

Black and American Indian youth are overrepresented in juvenile facilities, while white youth are underrepresented.  These racial disparities are particularly pronounced when it comes to Black boys and American Indian girls.  While 14% of all youth under 18 in the U.S. are Black, 42% of boys and 35% of girls in juvenile facilities are Black.   And even excluding youth held in Indian country facilities, American Indians make up 3% of girls and 1.5% of boys in juvenile facilities, despite comprising less than 1% of all youth nationally.

Racial disparities are also evident in decisions to transfer youth from juvenile to adult court.  In 2017, Black youth made up 35% of delinquency cases, but over half (54%) of youth judicially transferred from juvenile court to adult court. Meanwhile, white youth accounted for 44% of all delinquency cases, but made up only 31% of judicial transfers to adult court.  And although the total number of youth judicially transferred in 2017 was less than half what it was in 2005, the racial disproportionality among these transfers has actually increased over time.  Reports also show that in California, prosecutors send Hispanic youth to adult court via "direct file" at 3.4 times the rate of white youth, and that American Indian youth are 1.8 times more likely than white youth to receive an adult prison sentence.

"Algorithmic Risk Assessment in the Hands of Humans"

The title of this post is the title of this new empirical paper authored by Megan Stevenson and Jennifer Doleac.  Here is its abstract:

We evaluate the impacts of adopting algorithmic predictions of future offending (risk assessments) as an aid to judicial discretion in felony sentencing.  We find that judges' decisions are influenced by the risk score, leading to longer sentences for defendants with higher scores and shorter sentences for those with lower scores.  However, we find no robust evidence that this reshuffling led to a decline in recidivism, and, over time, judges appeared to use the risk scores less.

Risk assessment's failure to reduce recidivism is at least partially explained by judicial discretion in its use.  Judges systematically grant leniency to young defendants, despite their high risk of reoffending.  This is in line with a long standing practice of treating youth as a mitigator in sentencing, due to lower perceived culpability.  Such a conflict in goals may have led prior studies to overestimate the extent to which judges make prediction errors.  Since one of the most important inputs to the risk score is effectively off-limits, risk assessment's expected benefits are curtailed. 

We find no evidence that risk assessment affected racial disparities statewide, although there was a relative increase in sentences for black defendants in courts that appeared to use risk assessment most. We conduct simulations to evaluate how race and age disparities would have changed if judges had fully complied with the sentencing recommendations associated with the algorithm.  Racial disparities might have increased slightly, but the largest change would have been higher relative incarceration rates for defendants under the age of 23.  In the context of contentious public discussions about algorithms, our results highlight the importance of thinking about how man and machine interact.

"From Warfare to Welfare: Reconceptualizing Drug Sentencing During the Opioid Crisis"

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

The War on Drugs officially began in 1971 when President Nixon decried drug abuse as “public enemy number one.”  The goal of the war rhetoric was clear — to cast drug abuse and the drug offender as dangerous adversaries of the law-abiding public, requiring military-like tactics to defeat.  Criminal sentencing would come to be the main weapon used in this pressing combat.  In continuation of the war efforts, the Anti-Drug Abuse Act of 1986 was passed under President Reagan, establishing a weight-based, and highly punitive, mandatory minimum sentencing approach to drug offenses that has persisted in some form for the last thirty years.  When the Act passed, crack cocaine was touted as the greatest drug threat, and crack cocaine offenders — the vast majority of whom were Black — were subjected to the harshest mandatory minimum penalties.  Like any war, the consequences of the War on Drugs has had widespread casualties, including (but not limited to) the devastation of many communities, families, and individuals; the increase in racial disparities in punishment; and fiscal catastrophe in penal systems across the country.  What the War on Drugs has not done is eradicate drug abuse in the United States.  And now, nearly fifty years after drugs became our national enemy, we have a new face of drug crime — the opioid addict.

The current Administration has recognized that “[d]rug addiction and opioid abuse are ravaging America.”  However, rather than ramping up punishment for opioid offenders through lengthier drug sentencing, in October 2017 the opioid crisis officially became a Public Health Emergency under federal law.  And while it is largely understood that this was mostly a symbolic statement with little practical effect, the rhetoric is markedly different than it was during the purported crack epidemic of the 1980s. Rather than drug offenders being the enemy, the opioid addict has been cast as the American Everyman, and the opioid addiction problem has become known as the “crisis next door” that “can affect any American, from all-state football captains to stay-at-home mothers.”

Now that the drug emergency is portrayed as destroying wholesome American communities — as opposed to poor, crime-ridden communities of color — the tone has changed from punishment toward treatment and rehabilitation.  The National Institute on Drug Abuse (NIDA) at the National Institutes of Health (NIH) has described opioid misuse and addiction as “a serious national crisis that affects public health as well as social and economic welfare.”  While we are in the midst of this shift in messaging about drug addiction, it is an ideal time for drug sentencing as a whole to be reconceptualized from use as a weapon — designed to destroy — to having a public welfare agenda.  To do this it requires recasting potential drug offenders as community members, rather than enemies.  This change in perspective and approach also necessitates understanding drug crime as undeterred by incarceration.  The tasks must be to decide on a goal of drug sentencing, and to develop multifaceted approaches to address and eradicate the underlying sources of the drug problem.  When this is done, we may find that more appropriate purposes of punishment — rehabilitation and retribution — compel us to think beyond incarceration, and certainly mandatory minimum sentencing laws, as the appropriate punishment type at all.

Terrific new Intercept series on capital punishment titled "The Condemned"

I received an email yesterday alerting me to exciting news that "The Intercept has published "The Condemned,” an investigative series by award-winning reporters Liliana Segura and Jordan Smith focused on the modern application and history of the death penalty in the United States. Here is more from the email:

The death penalty entered its “modern era” in 1976, when the U.S. Supreme Court upheld a new set of statutes in the landmark decision Gregg v. Georgia. This new Intercept series examines the use of capital punishment since 1976 and is partially based on an analysis of an unprecedented dataset that The Intercept began compiling in the summer of 2016, on all individuals sentenced to die in active death penalty jurisdictions during the past 43 years.

Amazingly, this data did not exist. Previously available information was often flawed, and many states either do not track this data or do so in a haphazard way. The Bureau of Justice Statistics collects demographic and other data about states’ death row populations, but Congress has blocked the public disclosure of this information.

With this new dataset, now available on GitHub, The Intercept is offering journalists, activists, lawyers, and anyone interested in the topic, a single and comprehensive resource covering the state of the death penalty as it exists in the U.S. today. .

“We limited our inquiry to active death penalty states, to focus on capital punishment as it exists today,” write Segura and Smith. “We were curious not only about who had been executed, but how many people had been removed from death row — a sizeable but largely invisible population. We wanted to see how many people had been re-sentenced, commuted, or released; how many had died awaiting execution; and how long people spent on death row. And we wanted to see who is on death row today.”

Their findings show that capital punishment remains as “arbitrary and capricious” as ever –– and “that the ‘modern” death penalty era remains animated by the same racial dynamics that have always defined capital punishment,” writes Segura.

The series’s four initial stories have been written by reporters Jordan Smith and Liliana Segura: in “Counting the Condemned,” Segura and Smith outline the many ways in which capital punishment has failed as a policy, particularly in its racism, arbitrary application and failure to deliver on claims of public safety.

“The Abolitionists,” also bylined by Segura and Smith, show how the abolition of the death penalty has become a bipartisan issue — and a national movement;

“The Power to Kill,” by Jordan Smith, looks at the pushback against Florida State Attorney Aramis Ayala after she determined that capital punishment is an unjust practice;

and “Death and Texas,” by Liliana Segura, shows that racial disparities on the Texas death row have increased even as death sentences decline.

"Race and Class: A Randomized Experiment with Prosecutors"

The title of this post is the title of this notable new research just published in the December 2019 issue of the Journal of Empirical Studies and authored by Christopher Robertson, Shima Baradaran Baughman and Megan Wright.  Here is its abstract:

Disparities in criminal justice outcomes are well known, and prior observational research has shown correlations between the race of defendants and prosecutors’ decisions about how to charge and resolve cases.  Yet causation is questionable: other factors, including unobserved variation in case facts, may account for some of the disparity.  Disparities may also be driven by socioeconomic class differences, which are highly correlated with race.  This article presents the first blinded, randomized controlled experiment that tests for race and class effects in prosecutors’ charging decisions.

Case vignettes are manipulated between subjects in five conditions to test effcts of defendants’ race and class status.  In the control condition, race and class are omitted, which allows baseline measures for bias and pilot testing of a blinding reform.  Primary outcome variables included whether the prosecutor charged a felony, whether the prosecutor would pursue a fine or imprisonment, and the amounts thereof.  With 467 actual prosecutors participating nationwide, we found that race and class did not have detectable prejudicial effects on prosecutorial decisions.  This finding, contrary to the majority of observational studies, suggests that other causes drive known disparities in criminal justice outcomes.

Council on Criminal Justice releases new report on "Trends in Correctional Control by Race and Sex"

This morning the Council on Criminal Justice released this interesting new report detailing notable modern changes in the modern demographics of prison, jail, probaton, and parole populatons.  Like all good data-driven reports, this one defies easy summary, and so I will just here reprint the report's page of "Key Findings":

• From 2000 to 2016, racial and ethnic disparites declined across prison, jail, probaton, and parole populatons in the U.S. For example, the black-white state imprisonment disparity fell from 8.3-to-1 to 5.1-to-1, and the Hispanic-white parole disparity fell from 3.6-to-1 to 1.4-to-1.i

• Black-white disparites in state imprisonment rates fell across all major crime categories. The largest drop was for drug ofenses.  In 2000, black people were imprisoned for drug crimes at 15 tmes the rate of whites; by 2016, that rato was just under 5-to-1.

• Among women, the black-white disparity in imprisonment fell from 6-to-1 to 2-to-1, a sharper decrease than the decline among men. The disparity among women fell because of an increase in the imprisonment rate for whites for violent, property, and drug crimes, and a decrease in the imprisonment of black women for drug crimes.

• The change in the black-white male imprisonment disparity occurred as the number of black men in state prisons declined by more than 48,000 (to about 504,000) and the number of white men increased by more than 59,000 (to roughly 476,000). Comparatvely, the black-white female disparity decreased as the number of black women in state prison fell by more than 12,000 (to about 24,000) and the number of white women increased by nearly 25,000 (to about 60,000).

• Reported ofending rates of blacks for rape, robbery, and aggravated assault declined by an average of 3% per year between 2000 and 2016, decreases that contributed to a drop in the black imprisonment rate for these crimes. This decrease was ofset in part by an increase in the expected tme to be served upon admission, which increased for both blacks and whites.

• Hispanic-white disparites in all four correctonal populatons have narrowed steadily since 2000. For Hispanics and whites on probaton, the data showed no disparity in rates by 2016.

For some context and perspectives on the report, the Marshall Project has this new piece headlined "The Growing Racial Disparity in Prison Time: A new study finds black people are staying longer in state prisons, even as they face fewer arrests and prison admissions overall."

"Pushed Out and Locked In: The Catch-22 for New York’s Disabled, Homeless, Sex-Offender Registrants"

The title of this post is the title of this new Yale Law Journal Forum piece authored by Allison Frankel. Here is its abstract:

Across New York, people are incarcerated for weeks, months, and even years after their prison release dates.  These individuals are not confined for violating prison disciplinary rules or committing new crimes. New York’s Department of Corrections and Community Supervision (DOCCS) detains them, instead, because they are homeless.  DOCCS refuses to release prisoners to community supervision without an approved address.  But for prisoners required to register as “sex offenders,” finding housing means navigating a web of restrictions that are levied exclusively on people convicted of sex crimes and that dramatically constrain housing options, particularly in densely populated New York City. These restrictions amount to effective banishment for registrants with disabilities, who face added obstacles to finding medically appropriate housing and are barred even from New York City’s homeless-shelter system.

As this Essay explores, the State of New York, and particularly New York City, pushes its poor, disabled sex-offender registrants into homelessness, and then prolongs registrants’ detention because of their homeless status.  This detention regime continues unabated, despite studies showing that sex-offender recidivism rates are actually relatively low and that residency restrictions do not demonstrably prevent sex offenses.  Rather, such laws consign registrants to homelessness, joblessness, and social isolation.  It does not have to be this way. This Essay suggests litigation strategies to challenge the prolonged detention of homeless registrants on statutory and constitutional grounds.  The Essay also offers policy solutions to improve New York City registrants’ access to housing and to untether an individual’s housing status from their access to liberty.  New York simply cannot and should not continue both to restrict registrants’ housing options and to detain individuals because they are homeless.

New Jersey commission releases big report recommending numerous big sentencing reforms

As reported in this local article from New Jersey, an "advisory panel that was reinvigorated by Gov. Phil Murphy to study racial and ethnic disparities in the state criminal justice system issued its report Thursday, calling for the elimination of mandatory sentences for those convicted of nonviolent drug and property crimes." Here is more:

The 13-member New Jersey Criminal Sentencing and Disposition Commission — chaired by retired state Supreme Court Justice Deborah Poritz — also recommended that those still incarcerated under such sentences be allowed to apply for early release. In addition, the group is urging lawmakers to adopt a new mitigating sentencing factor for young offenders, as well as a “compassionate release” program for those sentenced to terms of 30 years or more as juveniles.

The commission, which includes designees of senior lawmakers on both political parties, reached its conclusions unanimously, according to the report. “The Commission’s recommendations … reflect a consensus-driven, policy making process that incorporates a wide range of perspectives, including those of judges, prosecutors, defense attorneys, community stakeholders, corrections officials, faith organizations, and victims’ rights advocates,” the report reads.

Murphy on Thursday hailed the work of the commission, and urged the Legislature to put the reforms into bills during the current lame duck session, noting that he will sign them. “This is a comprehensive set of reforms. They will ensure the criminal justice system not only works, but works better and for all communities,” he said. “They meet the call of justice but also our broader goal of fairness.”  State Senate President Steve Sweeney called the recommendations in the report “a long-time overdue.”...

The commission was initially created by Gov. Jon Corzine a decade ago, but his successor, Chris Christie, never made any appointments and the group did not meet. Murphy jump-started the effort in February of last year, a month after he took office, noting that New Jersey “has the nation’s worst disparity in the rates of incarceration between black and white offenders” and that, “We can and must do better.”

The report also recommends a loosening of sentencing restrictions for two more serious crimes, second-degree robbery and second-degree burglary, which currently fall in a classification alongside offenses like murder, carjacking and aggravated arson. According to the report, both offenses are frequently charged even though they incorporate a broad range of conduct, including that which results in no physical injury to the victim.

Under the commission’s recommendation, the period of parole ineligibility for those convicted of such crimes would be reduced to half the sentence, down from the current 85%. The commission said it hoped its recommendations would “replicate the success” of the state’s recent bail reform initiative, in which monetary bail was largely replaced by an assessment of whether someone charged with a crime was likely to show up in court or be a danger to the community if released.

This press release from the Office of Gov Murphy includes supportive quotes from all sorts of state political and criminal justice leaders. I am eager to believe that the widespread support for the work of this state commission increases greatly the likelihood that some or all of its recommendations will become law.

The NJ commission's full report is available at this link, and it is a worthwhile read in full.  Here is the report's "Summary of Recommendations":

1. Eliminate mandatory minimum sentences for non-violent drug crimes.

2. Eliminate mandatory minimum sentences for non-violent property crimes.

3. Reduce the mandatory minimum sentence for two crimes – second degree robbery and second degree burglary – that previously have been subject to penalties associated with far more serious offenses.

4. Apply Recommendations #1, #2 and #3 retroactively so that current inmates may seek early release.

5. Create a new mitigating sentencing factor for youth.

6. Create an opportunity for resentencing or release for offenders who were juveniles at the time of their offense and were sentenced as adults to long prison terms.

7. Create a program, called “Compassionate Release,” that replaces the existing medical parole statute for end-of-life inmates.

8. Reinvest cost-savings from reductions in the prison population arising from these reforms into recidivism reduction and, to the extent available, other crime prevention programs.

9. Provide funding to upgrade the Department of Corrections’ existing data infrastructure to better track inmate trends and to develop partnerships with academic institutions to analyze this data.

"The Effect of Scaling Back Punishment on Racial Disparities in Criminal Case Outcomes"

The title of this post is the title of this recent research paper authored by John MacDonald and Steven Raphael that I just came across.  Here is its abstract:

Research Summary

In late 2014, California voters passed Proposition 47 that redefined a set of less serious felony drug and property offenses as misdemeanors.  We examine how racial disparities in criminal court dispositions in San Francisco change in the years before (2010-2014) and after (2015-2016) the passage of Proposition 47.  We decompose racial disparities in court dispositions into components due to racial differences in offense characteristics, involvement in the criminal justice system at the time of arrest, pretrial detention, criminal history, and the residual unexplained component.  Before and after Proposition 47 case characteristics explain nearly all of the observable race disparities in court dispositions. However, after the passage of Proposition 47 there is a narrowing of racial disparities in convictions and incarceration sentences that is driven by lesser weight placed on criminal history, active criminal justice status, and pretrial detention in effecting court dispositions.

Policy Implications

The findings from this study suggest that policy reforms that scale back the severity of punishment for criminal history and active criminal justice status for less serious felony offenses may help narrow racial inequalities in criminal court dispositions.  Efforts to reduce the impact of racial inequalities in mass incarceration in other states should consider reforms that reduce the weight that criminal history, pretrial detention, and active probation status has on criminal defendants’ eligibility for prison for less serious drug and property offenses.

"Taking a second look at life imprisonment"

The title of this post is the headline of this notable new Boston Globe commentary authored by Nancy Gertner and Marc Mauer. Here are excerpts:

While there has been a great deal of attention in recent years to the impact of the drug war on growing prison populations, in fact, the main drivers of the prison system now are excessive sentences for violent offenses.

The statistics are troubling.  There are as many individuals [in Massachusetts] serving life sentences as the entire state prison population in 1970, and more than half are black or Latino. Of the 2,000 lifers in the state, about half are not eligible for parole.  Barring executive clemency, they will die in prison after spending decades behind bars.

Since 90 percent of lifers nationally have been convicted of serious violent crimes, supporters of lifelong incarceration argue that incapacitating such people is an effective crime-control mechanism.  In fact, it is the opposite: It is counterproductive for public safety.

Criminologists know that individuals “age out” of crime.  Any parent of a teenager understands that misbehavior, often serious, is all too common at this stage.  FBI arrest data show that the rate of arrest for teenage boys rises sharply from the mid-teen years through the early 20s but then declines significantly. Arrests for robbery, for example, peak at age 19 but decline by more than half by age 30 and by three-quarters by age 40. The same is true for other violent crimes.

The reason is clear.  As teenage boys enter their 20s, they lose their impulsivity, get jobs, find life partners, form families, and generally take on adult roles.  Violent behavior becomes less attractive.

For public safety purposes incarcerating people past age 40 produces diminishing returns for crime control; less and less crime is prevented by incapacitation each year.  This impact is magnified by resource tradeoffs.  National estimates for the cost of incarcerating an elderly person are at least $60,000 a year, in large part due to the need for health care.  With finite public safety resources, these costs are not available to invest in family and community support for the new cohort of teenagers, for whom proactive initiatives could lower the risk of antisocial behavior.

Legislation introduced by Representative Jay Livingstone of Boston and Senator Joe Boncore of Winthrop, along with 34 cosponsors, would help to ameliorate this problem in Massachusetts.  Under the bill’s “second look” provision, individuals serving life without parole would be eligible for a parole review after serving 25 years....

Recently, there has been a bipartisan critique of the effects of mass incarceration, particularly on low-income communities of color.  State policy makers across the country are exploring ways to reduce excessive prison populations without adverse effects on public safety.  The proposed “second look” provision offers one significant alternative.  It should be passed.

US Sentencing Commission releases updated "First Step Act of 2018 Resentencing Provisions Retroactivity Data Report"

Late week the US Sentencing Commission released this updated new version of its data report titled "First Step Act of 2018 Resentencing Provisions Retroactivity Data Report."  The introduction to the report provides this context and overview:

On December 21, 2018, the President signed into law the First Step Act of 2018.  Section 404 of that act provides that any defendant sentenced before the effective date of the Fair Sentencing Act of 2010 (August 3, 2010) who did not receive the benefit of the statutory penalty changes made by that Act is eligible for a sentence reduction as if Sections 2 and 3 of the Fair Sentencing Act of 2010 were in effect at the time the offender was sentenced.  The First Step Act authorizes the defendant, the Director of the Bureau of Prisons, the attorney for the Government, or the court to make a motion to reduce an offender’s sentence.

The data in this report represents information concerning motions for a reduced sentence pursuant to Section 404 of the First Step Act which the courts have granted. The data in this report reflects all motions granted through September 30, 2019 and for which court documentation was received, coded, and edited at the Commission by October 23, 2019.

These new data from the USSC show that 1,987 prisoners have been granted sentence reductions, and that the average sentence reduction was 70 months of imprisonment among those cases in which the the resulting term of imprisonment could be determined.   Though this data is not exact and may not be complete, it still seems sound to state that this part of the FIRST STEP Act, by shortening nearly 2000 sentences by nearly 6 years, has now resulted in nearly 12,000 prison years saved.

Of course, as I have noted before, the FSA retroactivity provision of the FIRST STEP Act was only a small piece of the legislation.  But these latest data show yet again how this small piece has had big impact in lots of years of lots of lives.  And, of course, people of color have been distinctly impacted: the USSC data document that over 91% of persons receiving FSA sentence reductions were Black and more than another 4% were Latinx.

"The Case for Race-Based Sentencing"

The title of this post is the headline of this new Vice piece discussing an interesting sentencing issues being engaged by Canadian courts. The subheadline of the piece summarizes the essentials: "In a case that could change how judges punish Black people, Ontario's top court will soon decide how much systemic racism should be taken into account when sentencing." Here are excerpts (links from original):

[W]hen [Kevin] Morris was convicted of possessing a loaded gun, his first offence, Ontario Superior Court Justice Shaun Nakatsuru decided to reduce his sentence from four years to 15 months, noting the systemic disadvantages Morris faced in his life as a Black man growing up in Toronto.  Morris’s sentence was further reduced to one year because police interrogated him after he had requested a lawyer.

To help make his decision, Nakatsuru used a cultural assessment of Morris, written by a clinical social worker and consisting of interviews and data that gave insight on him.  In his judgment, Nakatsuru wrote, “You began to notice how many were dying in your neighbourhood. Dying of violence. You did not have a lot of options. You decided you would live with it. That you would survive. Yet at the same time, you felt hopelessness.”

But in the spring the Crown will challenge that decision in the Court of Appeal, arguing that the judge was too lenient in his decision. If Morris wins, it could set a precedent for the use of cultural assessments in sentencing....

Nana Yanful, a lawyer for the Black Legal Action Centre, one of the 14 interveners on Morris’s appeal case, says that Morris’s case gives courts a chance to address the circumstances of Black offenders. She says the courts should stop asking if race can be a reason for leniency, and start to ask, if the offender wasn’t Black, how likely is it that they would be involved with the criminal justice system?

Judges in Canada already consider personal circumstances such as mental health, age, and past criminal record when sentencing an offender. Since 1999 judges have been legally obliged to consider the systemic disadvantages Indigenous offenders experienced before sentencing.

This is called the Gladue principle, and came into effect after a Cree woman pleaded guilty to manslaughter and was handed a three-year prison sentence. The Crown requested a conditional sentence, due to the offender’s history of substance abuse and lack of education. The judge did not grant the request, since she was off reserve at the time of the murder.

But after the case went to the Supreme Court, and the sentencing decision was upheld, the court clarified a section of the Criminal Code that would allow judges to recommend restorative justice measures for Indigenous offenders, such as reduced sentencing.

There is no similar principle for Black offenders, who make up 9 percent of the federal prison population, even though Black people only represent 3.5 percent of the population. The Office of Correctional Investigators reported a 69 percent increase of Black inmates between 2005 and 2015. While lawyers and judges can request cultural assessments, it’s up to the presiding judge to decide if it’s appropriate based on the circumstances of the case.

In Nova Scotia there has been a growing trend of judges considering cultural assessments in sentencing Black offenders. In one notable Nova Scotia Supreme Court case, Honourable Justice Jamie Campbell reviewed the cultural assessment of an African Indigenous man convicted of second-degree murder, before sentencing him to life in prison in 2017. Although the cultural assessment did not lead to a lighter sentence, it prompted “a judge to struggle with difficult questions for which there may not really be entirely clear answers,” the decision stated.

“That is why the cultural assessment is both a fascinating and a challenging document,” Campbell wrote in his judgment. “It provides information that makes it harder, not easier, to reach a conclusion. That is a good thing. The challenge comes from acknowledging the role that race plays in the prevalence of violent crime among young African Nova Scotian men while not falling into racist traps.”

Nova Scotia has been collecting data for cultural assessments since 2016, with 20 total requests. And requests have been increasing: In 2018 there were five requests for cultural assessments, while 11 have been requested so far this year.

A defence win in Morris’s case would set the same standard in Ontario, and also affect the disproportionate rate of incarcerated Black people in Canada. “What we’ve been doing so far isn’t working. The disproportionate impact is leading to a disproportionate outcome,” Yanful said. “So let’s take a step back and see what the sentencing court, and what the criminal justice system can do to be able to address this issue meaningfully.”

"Women’s Mass Incarceration: The Whole Pie 2019"

The Prison Policy Initiative continues to do an amazing job with updated accounts of the "whole pie" of different aspects of the US criminal justice system, and today's latest report is this updated version of an accounting of women who are incarcerated in the United States.  Here is part of the report's introductory text:

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

This report provides a detailed view of the 231,000 women and girls incarcerated in the United States, and how they fit into the even broader picture of correctional control. We pull together data from a number of government agencies and calculates the breakdown of women held by each correctional system by specific offense. The report, produced in collaboration with the ACLU’s Campaign for Smart Justice, answers the questions of why and where women are locked up...

In stark contrast to the total incarcerated population, where the state prison systems hold twice as many people as are held in jails, more incarcerated women are held in jails than in state prisons. As we will explain, the outsized role of jails has serious consequences for incarcerated women and their families.

Women’s incarceration has grown at twice the pace of men’s incarceration in recent decades, and has disproportionately been located in local jails. The data needed to explain exactly what happened, when, and why does not yet exist, not least because the data on women has long been obscured by the larger scale of men’s incarceration. Frustratingly, even as this report is updated every year, it is not a direct tool for tracking changes in women’s incarceration over time because we are forced to rely on the limited sources available, which are neither updated regularly nor always compatible across years.

Particularly in light of the scarcity of gender-specific data, the disaggregated numbers presented here are an important step to ensuring that women are not left behind in the effort to end mass incarceration.

"We've Normalized Prison: The carceral state and its threat to democracy"

The title of this post is the title of this notable new Washington Post commentary authored by Piper Kerman.  I recommend the full piece (which is part of this new Prison issue in the Post's magazine), and here are excerpts:

The reach of the American criminal punishment systems stretches to clutch far more people than many imagine.  I know this not only from being incarcerated, but also from teaching nonfiction writing classes in state prisons.  My students’ stories bravely reveal difficult personal truths and bring to light much wider realities in a way that only lived experience really can.  What incarcerated writers’ voices illustrate is that the American criminal justice system does not solve the problems — violence, mental illness, addiction — that it claims to address....

Indeed, far from solving our problems, the carceral state is causing a massive one: A nation that locks up so many people and creates an expansive apparatus that relies on violence and confinement is a nation in which democracy, over the long term, cannot thrive.  For centuries, the U.S. political economy has relied on millions being sidelined from democratic participation, most notably African Americans and, before 1920, women.  Violence, in the form of lynching, was always important to limit democracy in this country (and agents of law enforcement were often complicit).  As we near 2020, civic exclusion is still a critical tool for those invested in preserving an inequitable status quo, and the policies surrounding mass incarceration are invaluable for continuing to deny participation to millions of Americans.

Last year, the citizens of Florida voted to amend the state constitution to allow people like me, with felony convictions, to regain the right to vote after returning home.  Quickly and shamelessly, the Florida legislature and governor responded by passing a poll tax to prevent those voters — disproportionately people of color and poor people — from having a voice.  Many other states also restrict voting rights of prisoners or ex-prisoners, especially states with large African American populations — not a coincidence, as they remain overly targeted and punished by the criminal justice system.  As a result, we have not only normalized prison but normalized the exclusion of large groups of people from participating in our democracy....

Freedom and safety are too often imagined as being in opposition, but nothing could be further from the truth. Americans who have the most freedom — freedom to learn, freedom from illness, freedom of movement, freedom from violence — are invariably the safest, and the whitest, and the richest.  We did this to ourselves: Mass incarceration is a result of policies that have grown out of a history of slavery, colonialism and punishment of the poor.  Until we reconcile with these hard truths, by listening to the people most affected by the loss of freedom, we will fall far short of equity. We have a choice: We can permit injustice to remain a growth industry or we can elect to have a more fair, restorative and effective system.  And this isn’t an abstract choice — it is one you will make today, and tomorrow, and next week. Ending mass incarceration is imperative for democracy, safety and freedom.  Do you see what is happening in your own community?  And are you ready to do your part?

Philadelphia Inquirer provides detailed coverage of "The Probation Trap"

The local paper in the City of Brotherly Love has this important new series highlighting that the Keystone State is not very loving when it comes to how it treats people caught up in community supervision. The series is titled "The Probation Trap" and here is the subheading for the coverage: "Pennsylvania has one of the nation's highest rates of supervision, driven by unusual laws that leave judges unchecked.  But many people fail, ending up in jail or in a cycle of ever more probation." 

Here is some of the introduction explaining "The Problem with Probation":

In Pennsylvania, as across the country, crime rates have fallen to their lowest point in decades. But over that same time, the rate of incarceration in Pennsylvania state prisons and county jails nearly quadrupled, while the number on probation or parole also grew almost four times larger, to 290,000 people.

Counting jail, prison, probation, and parole, Pennsylvania now has the nation’s second-highest rate of people under correctional control. Probation and parole account for three-quarters of that — a phenomenon critics of mass incarceration call “mass supervision.”

Nationwide, one in 55 adults is on probation or parole. In Pennsylvania, that’s one in 35 adults. In Philadelphia: one in 23 adults.

African American adults in Philadelphia are disproportionately impacted. One in 14 is under supervision. Philadelphia’s county supervision rate is the highest of any big city — and 12 times the rate of New York City. ‍

What’s driving this? To find answers, we watched hundreds of hearings, interviewed scores of people, and analyzed 700,000 case dockets from 2012 to 2018.

What we found is a system virtually ungoverned by law or policy, resulting in wildly disparate versions of justice from one courtroom to the next.

We found a system that routinely punishes poverty, mental illness, and addiction. We met a woman who was jailed two months for failing to report to probation because she wasn’t permitted to bring her newborn child and couldn’t afford a babysitter. We met a man who was locked up because he didn’t have $227 to pay for a court-ordered drug evaluation.

As a result, some people remain under court control for years after being convicted of low-level crimes, resentenced two, three, four, or five times over for infractions including missing appointments, falling behind on payments, or testing positive for marijuana. Probation and parole violations are flooding the court system, filling city jails and driving up state prison populations.

Many other states, recognizing similar problems, have reformed their systems. Can Pennsylvania?

Here are the main articles in the series:

"Living in Fear:  Probation is meant to keep people out of jail. But intense monitoring leaves tens of thousands across the state at risk of incarceration."

"Judges Rule: When it comes to probation, Pennsylvania has left judges unchecked to impose wildly different versions of justice."

"Punishing Addiction: Courts recognize substance-use disorder is a disease. Yet some judges continue punishing relapse with ever-longer probation and even prison."

"Tipping the Scales: Challengers Take On the Old Boys' Club of Elected Prosecutors"

The title of this post is the title of this interesting short report from the Reflective Democracy Campaign. Here is how it gets started:

After someone gets arrested, a prosecutor holds the power over what happens next.  Charge the defendant, or release them?  Charge them with a felony, or a misdemeanor? Since the vast majority of cases don’t go to trial, it’s mostly prosecutors — not judges — who determine whether defendants go to prison and for how long.  In the words of Supreme Court Justice Robert Jackson, a prosecutor “has more control over life, liberty, and reputation than any other person in America.”

In 2014, as a prosecutor in Ferguson failed to indict the police officer who killed Michael Brown, we were conducting our historic study of the race and gender of prosecutors. What we found made headlines:  95% of prosecutors were white, and 79% were white men.  Perhaps most alarming, most prosecutors ran for office unopposed, leading to an entrenched status quo which is highly resistant to bipartisan calls for criminal justice reform.

With race and gender inequality baked into the criminal justice system, repairing the broken demographics of prosecutorial power is an urgent goal, and the data are clear:When voters have a choice, they reject the white male status quo.  Competitive elections for prosecutor can fix the demographic crisis and level the playing field for system reform.

Five years after our initial analysis of elected prosecutors, we returned to see how their demographics have — and haven’t— changed.  Here’s what we found:

White control of elected prosecutor positions has not changed: In 2015, prosecutors were 95% white. In 2019, they are still 95% white.

The gender (im)balance of elected prosecutors is changing: While nearly 75% of prosecutors are white men, women have increased at a rate of 34% since 2015, from 18% to 24% of prosecutors.

Change is possible — when there is competition: Prosecutors run unopposed 80% of the time, but in competitive races, the old boys' club starts to give away. White male over-representation is rampant, but not unsolvable.

When women of all races and men ofcolor run for prosecutor in competitive elections, they're more likely to win than white men: In competitive 2018 elections, white men were 69% of candidates, but only 59% of winners. Women and people of color were 31% of candidates and 41% of winners.

Despite overall low numbers, women of color are making notable gains: There are nearly 50% more women of color prosecutors today as in 2015.

"Equal Protection Under Algorithms: A New Statistical and Legal Framework"

The title of this post is the title of this notable new paper authored by Crystal Yang and Will Dobbie now available via SSRN. Here is its abstract:

In this paper, we provide a new statistical and legal framework to understand the legality and fairness of predictive algorithms under the Equal Protection Clause.  We begin by reviewing the main legal concerns regarding the use of protected characteristics such as race and the correlates of protected characteristics such as criminal history.  The use of race and non-race correlates in predictive algorithms generates direct and proxy effects of race, respectively, that can lead to racial disparities that many view as unwarranted and discriminatory.  These effects have led to the mainstream legal consensus that the use of race and non-race correlates in predictive algorithms is both problematic and potentially unconstitutional under the Equal Protection Clause.  This mainstream position is also reflected in practice, with all commonly-used predictive algorithms excluding race and many excluding non-race correlates such as employment and education.

In the second part of the paper, we challenge the mainstream legal position that the use of a protected characteristic always violates the Equal Protection Clause.  We first develop a statistical framework that formalizes exactly how the direct and proxy effects of race can lead to algorithmic predictions that disadvantage minorities relative to non-minorities.  While an overly formalistic legal solution requires exclusion of race and all potential non-race correlates, we show that this type of algorithm is unlikely to work in practice because nearly all algorithmic inputs are correlated with race.  We then show that there are two simple statistical solutions that can eliminate the direct and proxy effects of race, and which are implementable even when all inputs are correlated with race.  We argue that our proposed algorithms uphold the principles of the Equal Protection doctrine because they ensure that individuals are not treated differently on the basis of membership in a protected class, in stark contrast to commonly-used algorithms that unfairly disadvantage minorities relative to non-minorities despite the exclusion of race.

We conclude by empirically testing our proposed algorithms in the context of the New York City pretrial system.  We show that nearly all commonly-used algorithms violate the spirit of the Equal Protection Clause by including variables that are correlated with race, generating substantial proxy effects that unfairly disadvantage blacks relative to whites. Both of our proposed algorithms substantially reduce the number of black defendants detained compared to these commonly-used algorithms by eliminating these proxy effects. These findings suggest a fundamental rethinking of the Equal Protection doctrine as it applies to predictive algorithms and the folly of relying on commonly-used algorithms.

Another update on Chicago "stash-house sting" litigation showcasing feds ugly drug war tactics

Via a series of posts last year, I was able to report updates from Alison Siegler, Clinical Professor of Law and Director of the University of Chicago Law School's Federal Criminal Justice Clinic, concerning the extraordinary litigation her clinic has done in response to so-called "stash house stings" in which federal agents lure defendants into seeking to rob a (non-existent) drug stash-house.  In this 2017 post, I highlighted this lengthy Chicago Tribune article, headlined "ATF sting operation accused of using racial bias in finding targets, with majority being minorities," on this topic. 

I now see that the Chicago Tribune has this new lengthy article, headlined "Convicted in a controversial stash house sting operation, Leslie Mayfield is struggling to rebuild his life after prison." which focuses on one stash-house defendant while also telling the broader stories of these cases.  I recommend the new Tribune article in full, and here are excerpts:

Leslie Mayfield wasn’t used to entering a courtroom except in shackles.  Over the years, through his trial for conspiring to rob a drug stash house, his sentencing to a decades-long prison term and his long-shot fight to overturn his conviction on entrapment grounds, Mayfield had always been escorted into court by deputy U.S. marshals from a lockup in back....

But recently, he took a seat in U.S. District Judge Edmond Chang’s courtroom gallery, whispering to his attorney that it all felt strange as he waited for his name to be called....  Reviewing reports on Mayfield’s progress, Chang noted that since his release from prison, he’d found a job, reconnected with his family and maintained a strong motive to stay straight.  Then the judge made the transformation official, agreeing that Mayfield, 51, no longer needed court supervision.

The ruling marked a quiet milestone in the widely criticized sting operations in which the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives used informants to lure unsuspecting targets into a scheme to rob drug stash houses — an undercover ruse concocted by the government.

For years, the stings were considered a smashing success, touted as a law enforcement tool to remove dangerous criminals from the streets.  But the practice came under fire in 2014 when attorneys for the University of Chicago Law School mounted a legal challenge on behalf of nearly four dozen Chicago-area defendants alleging the stings disproportionately targeted African Americans and Hispanics.

Both the ATF and the U.S. attorney’s office staunchly defended the operations in court, saying they followed rigorous guidelines to ensure the stings were lawful.  While the legal effort to prove racial discrimination fell short, the tactics drew sharp rebukes from many judges.  Prosecutors began quietly dismissing the more serious charges, and over the next year or so, most of the defendants — including Mayfield — were sentenced to time served.

As the first to be cleared of all court supervision, Mayfield could be viewed as a success story, but he’s struggled in many ways.  Like so many ex-cons, Mayfield is learning how hard it can be to rebuild his life after prison. He also continues to fight guilt over the plight of his brother and cousin — both of whom he recruited into the scheme and are still serving decadeslong prison sentences....

The outlines of each stash house sting followed the same basic pattern: ATF informants identified people they believed would commit a drug-related robbery.  If the target met certain criteria — including a violent criminal background — agents approved the sting.

The elaborate operations included a fake stash house location, fictitious amounts of money and drugs, and other made-up details of a robbery plot.  An undercover agent posing as a disgruntled drug dealer followed a script aimed at convincing the target to agree on secret recordings to take part in the robbery, pledge to bring guns — and use them if necessary.

Since agents claimed that massive quantities of drugs were involved, the prosecutions often carried eye-popping sentences, sometimes even life behind bars.  Nearly all the targets, though, turned out to be African American or Hispanic — many of whom had minimal criminal histories....

Mayfield was convicted at trial in 2010 and handed a 27-year sentence.  His brother, with only a nonviolent drug conviction in his past, and his cousin both were given 25-year prison terms.

In 2014, the University of Chicago’s Federal Criminal Justice Clinic led an effort to have charges against 43 defendants dismissed on grounds that the cases were racially biased.  In a landmark hearing in December 2017, nine federal judges overseeing the cases heard testimony from dueling experts on policing who came to dramatically different conclusions.

The U.S. attorney’s office denied that the stings disproportionately affected minorities, arguing that targets were selected by their propensity for violence, not race.  For instance, while out on bond, two men facing stash house-related indictments were charged in separate shootings, including the wounding of a Chicago police officer.

But many judges overseeing the cases had clear concerns that the ends did not justify the means.  In a decision that wasn’t binding but served as a guide for other judges, then-U.S. District Chief Judge Ruben Castillo said the stings shared an ugly racial component and should “be relegated to the dark corridors of our past.”

While Castillo stopped short of dismissing the case before him, his 2018 ruling had a ripple effect.  At the urging of Castillo and other judges, the U.S. attorney’s office began offering plea deals and dropping counts that involved stiff mandatory minimum sentences.

The results were startling. While many of the 43 defendants faced mandatory sentences of 15 to 35 years in prison if convicted, 32 instead were released with sentences of time served after pleading guilty to lesser charges.  Most of the others received prison terms that were significantly below federal sentencing guidelines.

While the cases hadn’t been thrown out of court, Alison Siegler, the Federal Criminal Justice Clinic’s founder, noted in an April report to the 7th Circuit Bar Association that "the U.S. Attorney’s Office and the ATF have entirely stopped bringing stash house cases in Chicago, even as those cases continue to be prosecuted elsewhere in the country.”

Some prior related posts:

• Deep dive into litigation over Chicago “Stash House Stings”
• Guest post series on Chicago "stash-house sting" litigation: Part 1 on "Sentencing Victories"
• Guest post series on Chicago "stash-house sting" litigation: Part 2 on "Legal Victories"
• Guest post series on Chicago "stash-house sting" litigation: Part 3 on "A Path for Future Litigation" 

"The Eighth Amendment Power to Discriminate"

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

For the last half-century, Supreme Court doctrine has required that capital jurors consider facts and characteristics particular to individual defendants when determining their sentences.  While liberal justices have long touted this individualized sentencing requirement as a safeguard against unfair death sentences, in practice the results have been disappointing.  The expansive discretion that the requirement confers on overwhelmingly white juries has resulted in outcomes that are just as arbitrary and racially discriminatory as those that existed in the years before the temporary abolition of the death penalty in Furman v. Georgia.

While an examination of individualized sentencing is overdue, the solution is not to jettison the requirement, but instead to permit states to channel juror discretion.  This Article is the first to contend that states may achieve the goals of individualized sentencing, not by expanding juror discretion to consider mitigation evidence, but, counterintuitively, by narrowing it.  It proposes that states employ specific jury instructions that (1) require jurors to consider certain types of evidence as legally mitigating, (2) address the historically racist application of the death penalty, and (3) permit unfettered discretion solely in the direction of leniency.  Channeling and redirecting discretion will minimize racist and arbitrary outcomes and realize true individualized sentencing.

Prez candidate Beto O'Rourke proposes "Drug War Justice Grants" funding by marijuana tax revenues

As reported in this Hill piece,"President hopeful Beto O'Rourke on Thursday unveiled a plan to legalize marijuana and end the war on drugs." Here are the basics:

The former Texas congressman would grant clemency to those currently serving sentences for marijuana possession, establish a model for marijuana legalization and give grants to those affected by the war on drugs to help them benefit from the new industry.

The “Drug War Justice Grants” would be given to those formerly incarcerated for nonviolent marijuana offenses in state and federal prison. Licenses to produce, distribute, or sell marijuana would be funneled to minority-owned businesses and fees would be waived for low-income individuals who had previously been convicted of related offenses.

“We need to not only end the prohibition on marijuana, but also repair the damage done to the communities of color disproportionately locked up in our criminal justice system or locked out of opportunity because of the War on Drugs,” O'Rourke said in a statement.

This page on the O'Rourke campaign website provides some background and details, and here are excerpts focused on criminal justice matters:

In January 2009, Beto O’Rourke, one of the youngest members of the El Paso City Council, introduced a longshot resolution calling for an “honest, open national debate” on ending the prohibition of marijuana.... To Beto’s surprise, the resolution passed unanimously. But the mayor vetoed the resolution later that day....

In 2011, Beto published the book Dealing Death and Drugs: The Big Business of Dope in the U.S. and Mexico: An Argument for Ending the Prohibition of Marijuana. Long before the legalization of marijuana was overwhelmingly popular with the American public, Beto laid out his case for ending the decades-long prohibition on marijuana and repairing the damage done to the communities of color that are disproportionately impacted....

The War on Drugs has been catastrophic for communities of color, and our policy toward marijuana has been particularly egregious. Despite similar rates of use, African-Americans are almost 4 times more likely to be arrested for marijuana possession than white people. Yet, a 2017 survey of marijuana business owners in states allowing them found that only 19% identified as non-white. These statistics tell the story of marijuana laws in our country, where certain communities have been subjected to over-policing and criminalization while others are being presented lucrative business opportunities. Beto is committed to rewriting this story and rectifying the harm caused by decades of unjust marijuana policy.

As President, Beto will:

Legalize Marijuana...

Use clemency power to release those currently serving sentences for marijuana possession and establish a review board to determine whether others currently serving sentences related to marijuana should be released;

Expunge the records of those who have been convicted for possession and prevent the conviction from precluding these individuals from accessing housing, employment, education, and federal benefits, or from having their driver’s licenses suspended;...

Remove cannabis-related charges as grounds for deportation or denial of citizenship. The Trump Administration has explicitly targeted those with marijuana possession convictions for deportation, even though marijuana has been legalized in 11 states and the District of Columbia.

Invest revenue from the marijuana industry in communities impacted by the War on Drugs through “Drug War Justice Grants” and Equitable Licensing Programs....

To guarantee that opportunities to profit from a regulated marijuana market are made available to communities disproportionately impacted by the War on Drugs, Beto will:

Call for a federal tax on the marijuana industry, revenue from which will be used to:

Provide a monthly “Drug War Justice Grant” to those formerly incarcerated for nonviolent marijuana offenses in state and federal prison for a period based on time served. The grants will be funded completely by the tax on the marijuana industry.

Fund substance use treatment programs.

Support re-entry services for those who have been incarcerated for possession.

Invest in communities disproportionately impacted by marijuana arrests, including investments in housing and employment support, substance use and mental health treatment, peer and recovery support services, life skills training, victims’ services.

Support those disproportionately impacted by marijuana arrests, including those who have been convicted of marijuana possession themselves in participating in the marijuana businesses by providing technical assistance, industry-specific training, access to interest free/low-interest loans, and access to investment financing and legal services.

Ensure those most impacted by the War on Drugs are the ones benefiting from the economic activity related to marijuna.

As President, Beto will tie federal funding for criminal justice systems to requirements that states or local governments:

Waive licensing fees for producing, distributing, or selling marijuana for low-income individuals who have been convicted of marijuana offenses.

"The Democrats’ Shameful Legacy on Crime"

The title of this post is the title of this notable new New Republic piece by Marie Gottschalk.  It carries this subheadline: "Bill Clinton isn't the only one who deserves blame for turning America into a carceral state."  Here are excerpts:

For decades, a growing number of Democrats had been trying to reposition themselves as the party of law enforcement and to lure white voters away from the GOP.  With Senator Joe Biden of Delaware, chair of the Senate Judiciary Committee, urging Clinton to seize control of the issue by “upping the ante,” Democrats and Republicans engaged in a bidding war to see who could be the toughest and meanest sheriff in town.

The $30 billion law [known as the 1994 Crime Bill], passed 25 years ago this month, was the capstone of their efforts.  It included some modest funding for crime prevention programs, such as “midnight basketball,” but its main thrust was a vast array of punitive measures.  The crime bill funded 100,000 new police officers, established a federal three-strikes law, authorized more than $12 billion to prod states to lengthen time served and build new prisons, banned certain assault weapons, created dozens of new death penalty offenses, and ended federal educational Pell grants for inmates.  The crime bill did not significantly lower crime rates; it did, however, help transform the United States into the world’s warden, incarcerating more of its residents than any other country.

The United States has now begun a long overdue national reckoning about the bill — four years ago, Hillary Clinton faced questions about her and Bill Clinton’s complicity in mass incarceration, and Biden has also had to answer for his leading role in engineering the punitive turn taken by the Democratic Party.  But this reckoning still falls far short, partly because deep misunderstandings persist about the wider impact of the bill and other get-tough measures that built the carceral state over the last five decades.

While the Clintons and Biden are guilty as charged, they had many accomplices, some of whom were not the usual suspects.  For years, House and Senate Democrats had been pushing new legislation to curb domestic violence, but it did not come up for a floor vote until the Senate incorporated the measure into the crime bill in fall 1993.  To its credit, the Violence Against Women Act heightened public awareness of sexual assault and domestic violence and provided states and communities with important new resources for crisis centers, shelters, hotlines, and prevention programs.  But VAWA also emphasized law enforcement remedies and included measures that raised serious civil rights concerns — all with the help of many national and local organizations working against rape and domestic violence.  Many of these groups have since had second thoughts about “carceral feminism.”

During her presidential campaign, Hillary Clinton claimed that the crime bill was passed with strong support from African Americans who were clamoring for tough measures to halt rising crime rates.  In reality, African Americans were deeply divided over the legislation and other criminal justice issues.  These divisions have only widened in the 25 years since then, as a new generation of “post-racial” black politicians sought to appeal to white and African American voters by castigating young black men and women as addicts, drug dealers, and common street criminals.  (In one notable example from 2011, then-Mayor Michael Nutter of Philadelphia chastised black fathers as “sperm donors” and “doggone hoodie-wearing teens.”)  With the rise of Black Lives Matter, however, these and other activists are at last calling attention to the ways in which mass incarceration constitutes a new system of social control, one with disturbing parallels to the old Jim Crow era.

This stark reality is now a leading public issue, as it should be.  But it overshadows the deepening impact of the carceral state on other demographic groups.  The incarceration rate for white Americans — about 633 per 100,000 residents — appears relatively low compared to the rates for African Americans (3,044 per 100,000) and Hispanics (1,305 per 100,000), but it is more than ten times the national incarceration rates of certain Western European countries.  All told, half of all adults in the United States — or about 113 million people — have seen an immediate family member go to jail or prison for at least one night.

Jailed for unpaid fines almost a decade after being imprisoned for years for $31 pot sale

This new Washington Post article reminded me of a name and an ugly case from nearly a decade ago.  As the article explains, the matter has not gotten any less depressing.  The headline provides the essentials: "She got 12 years for $31 of pot. Years after her parole, she was jailed for the unpaid court fees."  Here are the dispiriting details:

Sitting in her jail cell this week, Patricia Spottedcrow couldn’t imagine where she was going to get the money she needed for her release.  In 2010, the young Oklahoma mother, who had been caught selling $31 worth of marijuana to a police informant after financial troubles caused her to lose her home, was sentenced to 12 years in prison.  It was her first-ever offense, and the lengthy sentence drew national attention, sparking a movement that led to her early release.

But once she was home free, Spottedcrow still owed thousands in court fees that she struggled to pay, since her felony conviction made it difficult to find a job.  Notices about overdue payments piled up, with late fees accumulating on top of the original fines.  On Monday, the 34-year-old was arrested on a bench warrant that required her to stay in jail until she could come up with $1,139.90 in overdue fees, which she didn’t have. Nearly a decade after her initial arrest, she was still ensnarled in the criminal justice system, and had no idea when she would see her kids again....

Back in 2011, Spottedcrow became an unwitting poster child for criminal justice reform when the Tulsa World featured her in a series about women incarcerated in Oklahoma. Then 25, she had just entered prison for the first time, and didn’t expect to be reunited with her young children until they were teenagers.

At the time of her arrest, Spottedcrow was unemployed and without a permanent home, the paper reported. She was staying at her mother’s house in the small town of Kingfisher, Okla., when a police informant showed up and bought an $11 bag of marijuana.  Two weeks later, he returned to buy another $20 worth of the drug from Spottedcrow.  Both mother and daughter were charged with distribution of a controlled substance, and, because Spottedcrow’s children were at home when the transaction took place, possession of a dangerous substance in the presence of a minor....

The two women both were offered plea deals that would have netted them only two years in prison, the World reported, but Spottedcrow didn’t want her 50-year-old mother, who has health issues, incarcerated.  Because neither had a prior criminal record and they had sold only a small amount of pot, they took their chances and pleaded guilty without negotiating a sentencing agreement, assuming they would be granted probation.

Instead, the judge sentenced Spottedcrow to 10 years in prison for the distribution charge, plus another two years for possession. Her mother received a 30-year suspended sentence so that she could take care of the children.  Kingfisher County Associate District Judge Susie Pritchett, who retired not long afterward, told the World she thought the sentence was lenient.  The mother-daughter pair had been behind “an extensive operation,” she claimed, adding, “It was a way of life for them.”

Spottedcrow said that wasn’t true.  “I’ve never been in trouble, and this is a real eye-opener,” she told the paper at the start of her prison stint.  “My lifestyle is not like this. I’m not coming back. I’m going to get out of here, be with my kids and live my life.”

After the World’s story published in 2011, supporters rallied around Spottedcrow’s cause, urging officials to reconsider her punishment.  At the time, Oklahoma had the highest per capita rate of female incarceration in the country, a title it continues to hold today.  Advocates contended that lengthy sentences like hers were part of the problem, and questioned whether racial bias could have played a role — Spottedcrow is part Native American and part African American.

That same year, a different judge reviewed Spottedcrow’s sentence and agreed to shave off four years.  Then, in 2012, then-Gov. Mary Fallin (R) approved her parole.  Spottedcrow got home in time to surprise her kids when they stepped off the school bus.  The American Civil Liberties Union described her release as a “bittersweet victory,” noting that serving only two years of a 12-year sentence was highly unusual, but the penalty that she received for a first-time, nonviolent drug offense wasn’t out of the ordinary for Oklahoma.

It also wasn’t the end of her troubles.  In 2017, five years after Spottedcrow was released from prison, Ginnie Graham, a columnist for the World, checked into see how she was doing.  The picture that she painted was dispiriting: Spottedcrow’s growing family was living in a motel off the interstate because having a felony drug conviction on her record made it virtually impossible for her to find housing, and she hadn’t been able to find work, either. “I’ve never had Section 8 or HUD, but I need it now,” she said. “I even called my (Cheyenne and Arapahoe) tribe to help, and they didn’t. I called the shelters, and they don’t take large families.”

That same year, at a forum on criminal justice reform, Spottedcrow explained that she couldn’t go back to working in nursing homes like she had done before her arrest because of her felony conviction.  And in a small town like Kingfisher, every other potential employer already knew about her legal woes....

While Spottedcrow struggled to care for her six children, the Kingfisher County Court Clerk’s Office mailed out more than a dozen notices saying she had fallen behind on her payments.  Each letter meant that the court had tacked on another $10 fine, and that another $80 would be added on top of that if the office didn’t get the money within 10 days.  When Spottedcrow first reported to prison, she owed $2,740 in fines.  After her release, she made payments at least every other month according to the World.  But it barely made an impact on her ballooning debt: When she was arrested this week, she owed $3,569.76....

Spottedcrow’s new arrest on Monday brought renewed attention to her nearly decade-old court case. KFOR morning news anchor Ali Meyer, who detailed the saga in a widely shared Twitter thread, noted that cannabis has been a booming industry in Oklahoma ever since the state legalized medical marijuana in 2018, and left it up to doctors to determine who qualified.

On Tuesday afternoon, Meyer posted the number for the Kingfisher County Court Clerk’s Office, which would allow anyone to make payments on Spottedcrow’s behalf.  By Wednesday, seven anonymous supporters had covered not just the $1,139.90 that she needed to get out of jail, but her entire $3,569.76 outstanding balance, the station reported.

Somewhere, Franz Kafka is smiling.

Prior posts on Spottedcrow's case:

• "How $31 of pot gave mom a 10-year-prison sentence"
• "Mom who sold $31 in pot seeks reduction to 12-year sentence"
• "Mom of 4 reflects on first year in prison for $31 pot sale"
• Early parole after two years' imprisonment for Oklahoma woman initially given 12 years for small pot sales 

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

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

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

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

"Arrest, Release, Repeat: How police and jails are misused to respond to social problems"

The title of this post is the title of this notable new report from the Prison Policy Initiative authored by By Alexi Jones and Wendy Sawyer.  Here is how the report gets started:

Police and jails are supposed to promote public safety. Increasingly, however, law enforcement is called upon to respond punitively to medical and economic problems unrelated to public safety issues.  As a result, local jails are filled with people who need medical care and social services, many of whom cycle in and out of jail without ever receiving the help they need.  Conversations about this problem are becoming more frequent, but until now, these conversations have been missing three fundamental data points: how many people go to jail each year, how many return, and which underlying problems fuel this cycle.

In this report, we fill this troubling data gap with a new analysis of a federal survey, finding that at least 4.9 million people are arrested and jailed each year, and at least one in 4 of those individuals are booked into jail more than once during the same year. Our analysis shows that repeated arrests are related to race and poverty, as well as high rates of mental illness and substance use disorders.  Ultimately, we find that people who are jailed have much higher rates of social, economic, and health problems that cannot and should not be addressed through incarceration.

Terrific review of localities that are "Addicted to Fines"

The latest (and sadly the last) issue of Governing magazine has this terrific lengthy cover story fully titled "Addicted to Fines: Small towns in much of the country are dangerously dependent on punitive fines and fees." I recommend the full extended article, and here is how it gets started:

Flashing police lights are a common sight all along Interstate 75 in rural south Georgia.  On one recent afternoon in Turner County, sheriff’s deputies pulled over a vehicle heading northbound and another just a few miles up on the opposite side of the interstate.  In the small community of Norman Park, an officer was clocking cars near the edge of town. In Warwick to the north, a police cruiser waited in the middle of a five-lane throughway.

These places have one thing in common: They issue a lot of tickets, and they finance their governments by doing it.  Like many other rural jurisdictions, towns in south Georgia have suffered decades of a slow economic decline that’s left them without much of a tax base.  But they see a large amount of through-traffic from semi-trucks and Florida-bound tourists.  And they’ve grown reliant on ticketing them to meet their expenses.  “Georgia is a classic example of a place where you have these inextricable ties between the police, the town and the court,” says Lisa Foster, co-director of the Fines and Fees Justice Center.  “Any city that’s short on revenue is going to be tempted to use the judicial system.”

This is by no means just a Georgia phenomenon. Throughout the country, smaller cities and towns generate major dollars from different types of fines, sometimes accounting for more than half of their revenues. Some places are known for being speed traps. Others prop up their budgets using traffic cameras, parking citations or code enforcement violations.

To get a picture of just how much cities, towns and counties rely on fines and fees, Governing conducted the largest national analysis to date of fine revenues and the extent to which they fund budgets, compiling data from thousands of annual financial audits and reports filed to state agencies. 

What we found is that in hundreds of jurisdictions throughout the country, fines are used to fund a significant portion of the budget.  They account for more than 10 percent of general fund revenues in nearly 600 U.S. jurisdictions.  In at least 284 of those governments, it’s more than 20 percent.  Some other governments allocate the revenues outside the general fund.  When fine and forfeiture revenues in all funds are considered, more than 720 localities reported annual revenues exceeding $100 for every adult resident. And those numbers would be even higher if they included communities reporting less than $100,000 in fines; those jurisdictions were excluded from our analysis.  In some places, traffic fine revenue actually exceeds limits outlined in state laws.

High fine communities can be found in just about every state, but they tend to be concentrated in certain parts of the country.  Rural areas with high poverty have especially high rates.  So do places with very limited tax bases or those with independent local municipal courts.  And these jurisdictions are far more common in the South than elsewhere.  The states that stood out in our analysis were Arkansas, Georgia, Louisiana, Oklahoma and Texas, plus New York.  Fines and forfeitures accounted for more than one-fifth of general revenues in the most recent financial audits for 52 localities in Georgia, and 49 in Louisiana.  By contrast, several Northeastern states with high property taxes had no localities exceeding the 10 percent threshold.

Notably, the big criminal justice reform plans released by major candidates for the Democratic Prez nomination all make brief mention of excessive fines of fees. But this Governing report provides an interesting insight into just how significant these matters can be for rural areas and their citizenry, and candidates eager to speak to the experiences of rural voters might want to give particular attention to this particular arena for needed criminal justice reforms.

"The Thirteenth Amendment: Modern Slavery, Capitalism, and Mass Incarceration"

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

The Article makes two conceptual contributions.  First, it tells a story about the Thirteenth Amendment forbidding one form of slavery while legitimating and preserving others. Of course, the text does not operate absent important actors: legislatures and courts.  Yet, as explained by Reva Siegel, despite “repeated condemnation of slavery,” such united opposition to the practice "may instead function to exonerate practices contested in the present, none of which looks so unremittingly 'evil' by contrast."  In this case, uncompensated prison labor inures economic benefits to the state and the companies capable of extracting it.

The Article argues that this preservation of the practice of slavery through its transformation into prison labor means only that socially, legislatively, and judicially, we have come to reject one form of discrimination: antebellum slavery, while distinguishing it from marginally remunerated and totally unremunerated prison labor, which courts legitimate.  The Article tells the story of post-slavery convict leasing; fraud and debt peonage; as well as the heinous practices imposed on children through coercive apprenticeship laws throughout the American south.  The Article then addresses modern slavery's transformations, including federal and state prison labor and the rise of private prisons.  It concludes by offering pathways forward.

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

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

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

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

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

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

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

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

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

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

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

Prior related post:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Cross-posed at Marijuana Law, Policy and Reform.

"Measuring Algorithmic Fairness"

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

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

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