Sentencing Law and Policy

"Race-Based Remedies in Criminal Law"

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior related posts:

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

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

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

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

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

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

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

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

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

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

• “Losing Our Punitive Civic Religion” by Jonathan Simon

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

"Doing Away With Disorderly Conduct"

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Notable new briefings from the Prison Policy Initiative

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

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

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

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

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

Virginia officially repeals its death penalty

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

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

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

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

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

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

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

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

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

Prior recent related post:

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

"The Gender of Gideon"

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

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

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

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

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

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

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

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

"Procedure's Racism"

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior related post:

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

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

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

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

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

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

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

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

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

"Merrick Garland, cannabis policy, and restorative justice"

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

"Black on Black Representation"

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

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

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

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

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

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

Schedule:

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

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

12:00 p.m.-1:30 p.m.: Lunch break

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

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

5:00 p.m.: Closing remarks

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

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

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

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

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

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

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

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

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

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

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

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

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

The recommendations are: 

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

New Urban Institute briefs on improving prison-related research

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Recommendations

1. Racial impact statements

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

2. Publish demographic data quarterly

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

3. Invest in communities

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Links to some prior MLK Day posts:

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

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

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

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

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

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

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

Details on Ohio's new ban of juve LWOP and the broader national landscape

As mentioned in this recent post, Ohio recently enacted a new law largely banning life without parole sentences for juveniles.  Daniel Nichanian has this new piece at The Appeal: Political Report about the law and the national develops in this space. I recommend the whole piece, and here are excerpts (with links and the graphic from the original):

Ohio is expanding access to parole hearings for people who have been incarcerated ever since they were children.  It will no longer sentence minors to life without the possibility of parole, and it will significantly curtail sentences that effectively amount to the same. 

Youth justice advocates are celebrating Senate Bill 256, which was signed into law by Governor Mike DeWine on Saturday, as their latest win in nationwide efforts to keep kids from spending their life in prison. The law is a “huge sea change” for the state, said Kevin Werner, policy director at the Ohio Justice & Policy Center, because “it recognizes that people change. … The heart of the bill is that Ohio values redemption over excessive punishment.”

SB 256, which is retroactive, only affects parole eligibility; it does not guarantee that people actually get released, even after spending decades in prison.  Under the new law, people who committed a crime as a minor will be eligible for parole after no more than 18 years of incarceration if the crime did not involve a homicide, or after no more than 25 to 30 years if it did.  That’s longer than in other states that have recently adopted similar laws....

Ohio is the 24th state, plus D.C., that will stop imposing sentences of juvenile life without parole.  A wave of states have adopted similar reforms since the Supreme Court ended mandatory life without parole sentences for minors in a series of early 2010s rulings.  Oregon, in 2019, and Virginia, in 2020, did this most recently. 

Brooke Burns, who heads the Ohio Public Defender’s Juvenile Department, stresses that SB 256 will also help the state confront significant racial inequalities in its prison population.  “When we think about lengthy sentences, it’s overwhelmingly kids of color who are impacted by that,” said Burns.

These inequalities stem from disparate sentencing, but also the rate at which children of color are transferred to adult court in the first place, especially in counties such as Cuyahoga (Cleveland) that do so very aggressively.

The Appeal reported in 2019 that the office of Prosecuting Attorney Michael O’Malley has been transferring minors to adult court far more than other Ohio jurisdictions.  Ninety-four percent of those who were transferred to adult court in 2018 were Black. 

Ohio’s Legislative Services Commission estimates that 50 to 60 people will immediately become eligible for parole when SB 256 becomes effective; this is approximately the number of people who have served at least 18 years, and in some cases much more, of the sentences they received when they were minors.  Many more will become newly eligible for parole in subsequent years.  The law will apply to most people who are serving outright sentences of life without parole, but also to people whose sentences are functionally equivalent since their parole eligibility was set so far in the future....

In Oregon and Virginia, the two states that most recently adopted laws to end juvenile life without parole, the state government is run by Democrats.  But SB 256 had to pass through Ohio’s GOP-run legislature — which it did with wide bipartisan majorities — and get support from the Republican governor.

"Racial Justice Requires Ending the War on Drugs"

The title of this post is the title of this new article authored by Brian Earp, Jonathan Lewis and Carl Hart along with with Bioethicists and Allied Professionals for Drug Policy Reform  in the American Journal of Bioethics. Here is its abstract:

Historically, laws and policies to criminalize drug use or possession were rooted in explicit racism, and they continue to wreak havoc on certain racialized communities.  We are a group of bioethicists, drug experts, legal scholars, criminal justice researchers, sociologists, psychologists, and other allied professionals who have come together in support of a policy proposal that is evidence-based and ethically recommended.  We call for the immediate decriminalization of all so-called recreational drugs and, ultimately, for their timely and appropriate legal regulation.  We also call for criminal convictions for nonviolent offenses pertaining to the use or possession of small quantities of such drugs to be expunged, and for those currently serving time for these offenses to be released.  In effect, we call for an end to the “war on drugs.”

Rounding up some notable recent criminal justice commentary

There are lots and lots of interesting criminal justice issues floating around these days, and these recent commentary catching my eye capture just a slice of what some folks are talking about:

From the Boston Globe, "What Trump’s pardons say about criminal justice"

From CNN, "How Joe Biden can root out racism in criminal justice"

From CNN Business, "Criminal justice reform can start with employers who give felons a second chance"

From The Hill, "Joe Biden should eliminate federal death row on his first day in office"

From The Hill, "Five ways Biden can jumpstart criminal justice reform immediately"

From Lawfare, "Are Trump’s Pardons a Blessing in Disguise?"

From USA Today, "COVID-19 compels America to rethink who we lock up in prison"

From Vice, "2020 Was the Year That Momentous Drug Reform Became Normal"

"Getting Explicit About Implicit Bias"

The title of this post is the title of this effective extended discussion published in the latest issue of Judicatre. which understandibly give particular attention to research regarding criminal case processing.  The piece's preamble explains that, to "better understand the effect of implicit bias in the courtroom, Judge Bernice Donald of the United States Court of Appeals for the Sixth Circuit talked with Professors Jeffrey Rachlinski and Andrew Wistrich of Cornell Law School."  The whole discussion is interesting, and here are some excerpts:

Implicit bias can play a role at every stage of the process, from the first encounter a suspect has with the police through criminal sentencing.  Police might be more inclined to arrest Black suspects and prosecutors might be more apt to pursue cases against Black defendants.  Furthermore, judges might be given different information about Black defendants than white defendants. With disparities at every stage, the effect of implicit bias can snowball.

We do not mean to exonerate judges completely.  As we note below, some evidence suggests that they do impose disparate sentences by race, notwithstanding our research.  Also, judges are responsible for monitoring prosecutors, police, probation officers, and others who might themselves be expressing implicit bias....

There is plenty of evidence that judges are being influenced by litigant race and gender beyond just the experimental studies we have conducted with hypothetical questions.  As an example, studies show that Black defendants receive longer sentences and female defendants receive shorter sentences.  These results have persisted for decades.  Of course, sentencing data can be noisy in the sense that others — probation officers, prosecutors, etc. — are involved in setting the stage for judges’ decisions.  These results, however, dovetail with our experiments in which such factors are controlled....

Many judges are alert to the danger of bias in the courtroom and work to neutralize it.  Some types of implicit bias, however, such as those based on age, skin tone, height, weight, citizenship, etc., also have an influence on judges.  We worry that even judges who are sensitive to racial inequity might overlook some of these other sources of unfairness.

Of course, the suspicion that judges are influenced by race or gender bias is profoundly disillusioning and dispiriting for a society that rightly demands equality in the courtroom.  Disparities in the administration of justice by a judge are particularly hurtful for racial or ethnic minorities and for women, perhaps particularly so when they turn to the courts for justice and redress for the effects of prejudice in the broader society.  Acknowledging the imperfections of the judiciary can be painful for judges — especially those subject to reselection — and can give rise to public criticism and even cynicism.

"'I See What Is Right and Approve, But I Do What Is Wrong': Psychopathy and Punishment in the Context of Racial Bias in the Age of Neuroimaging"

The title of this post is the title of this new paper now available via SSRN authored by Alison Lynch and Michael L. Perlin.  Here is its abstract:

Criminology research has devoted significant attention to individuals diagnosed either with antisocial personality disorder (ASPD) or psychopathy.  While in the past, the two terms were used somewhat interchangeably, researchers today are starting to see that the two terms in fact represent two very different personality types and offending patterns.  In this article, we examine this development from a legal perspective, considering what this might mean in terms of punishment for these two personality types based on the different characteristics they display in their actual offenses and their responses to punishment and rehabilitation.  Specifically, we will focus on how the use of these terms has a disproportionate negative impact on persons of color.

Current research estimates that one in five violent offenders can be classified as a psychopath, a term fraught with controversy and excluded from the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM V).  However, this category of offenders presents dramatically different characteristics than individuals with antisocial personality disorder, which is often incorrectly conflated with psychopathy.  Emerging research using neuroimaging is demonstrating that the brain of a psychopath responds differently to punishment than the brains of other non-psychopathic criminal offenders.  As research continues, it is critical for criminologists, attorneys and judges to begin thinking about whether brain science should affect our modern views of punishment, and whether individuals should be punished differently based on their diagnosis or neurophysiology.  This is not a topic that has been the subject of substantial contemporaneous legal analysis, and we hope that this article invigorates the conversation.

In this article, we first present some background on the controversy of "psychopathy" diagnosis, sharing in this context what we call the “inside baseball” about the debate — on the differences between psychopathy and ASPD — that has rocked the psychology academy.  We focus next on how the instruments that are used to assess these conditions are subject to significant racial bias.  We then unpack these issues through a lens of therapeutic jurisprudence, a school of thought that considers the extent to which the legal system can be a therapeutic agent.  We will also analyze how our current ideas about punishment and recidivism could change, using psychopathy research as a case study. Finally, we will consider how this new research creates extra responsibilities for both lawyers and expert witnesses in their representation of criminal defendants in such cases.

Following the Garden State's path to ending mass incarceration

This new commentary authored by Jeremy Travis and Marc Mauer provides yet another reason to love the Garden State. The piece is headlined "New Jersey shows that we can end mass incarceration," and here are excerpt:

New Jersey is on a path to release more than 3,000 people from prison as part of Gov. Phil Murphy’s attempts to fight the spread of the COVID-19 virus in the criminal justice system.  While the pandemic has kept far too many of us feeling trapped at home, Murphy is responding to this crisis in a way that prioritizes freedom for thousands of Americans.  In fact, since the beginning of the outbreak, New Jersey’s prison population has shrunk by 35%.

But it shouldn’t take a deadly virus to know that too many Americans remain stuck in prisons, serving sentences that are unnecessarily long and being denied basic human dignities like privacy and safety....

Rather than asking taxpayers to maintain this massive prison system, our nation should be demanding a different investment strategy.  Prison budgets should be cut and the savings directed to support crime prevention strategies of proven effectiveness, including substance abuse treatment programs, early intervention with families at risk, and community-based anti-violence initiatives.  Savings should also be reinvested in Black and brown communities that have borne the brunt of this failed policy.  Achieving this goal will move society toward repairing decades of harm while also advancing a stronger and healthier nation....

The United States has become the world leader in incarceration not simply because we send more people to prison.  We also keep them behind bars far longer than other nations. One in every seven people in prison today — an estimated 206,000 — is serving some form of a life sentence.  People are staying behind bars well into old age, leading modern-day prisons to resemble a network of high-security nursing homes.

These excessive sentences are counterproductive in reducing crime because individuals “age out” of their high crime years.  Long prison terms frequently extend well past the point of diminishing returns for public safety.  Other democracies have recognized this statistical truth and rarely imprison individuals for more than 20 years.

New Jersey is already starting to make these changes.  Following the recommendations of a bipartisan Criminal Sentencing and Disposition Commission, the state is tackling critical reforms that may shrink the prison population and close the racial gap in incarceration rates.  So far, the Legislature has debated policies like ending mandatory minimum sentences for many nonviolent crimes, expanding compassionate release, and resentencing people assigned multi-decade punishments when they were teenagers.

Under the leadership of Gov. Murphy, New Jersey is becoming a model for how states can use thoughtful, systemic, and data-driven policies to chart the end of mass incarceration and eliminate racial disparities.... In response to the onslaught of the COVID-19 pandemic, tens of thousands of people have been released from U.S. prisons.  It took the United States 40 years to quadruple its incarceration rate. With brave leadership and sustained community advocacy, we can end the reality of mass incarceration and its underlying systemic racism within a generation.  Our national promise of freedom demands no less.

"Defund the crime beat"

The title of this post is the title of this potent posting authored by Tauhid Chappell and Mike Rispoli at the NeimanLab site.  Here is how it starts (with links from the original):

Let’s be honest: Crime coverage is terrible.

It’s racist, classist, fear-based clickbait masking as journalism.  It creates lasting harm for the communities that newsrooms are supposed to serve.  And because it so rarely meets the public’s needs, it’s almost never newsworthy, despite what Grizzled Gary in his coffee-stained shirt says from his perch at the copy desk.

This should be the year where we finally abolish the crime beat.  Study after study shows how the media’s overemphasis on crime makes people feel less safe than they really are and negatively shapes public policy around the criminal–legal system.  And study after study shows that it’s racist and inhumane.

While crime coverage fails to serve the public, it does serve three powerful constituencies: white supremacy, law enforcement, and newsrooms — specifically a newsroom’s bottom line.

Making a great case for greater data to improve sentencing decision-making and sentencing systems

I was very pleased this morning to see this new Atlantic piece authored by two Ohio state jurists, Judge Pierre H. Bergeron of the Ohio Court of Appeals and Justice Michael P. Donnelly of the Ohio Supreme Court.  Because I have had the honor of participating in ongoing efforts to improve sentencing data in the Buckeye State, I knew I was going to like the piece when I saw its full title: "How a Spreadsheet Could Change the Criminal-Justice System: A lack of data instills trial-court judges with enormous, largely unrestrained sentencing power."  And the full piece, which I fully recommend, does a terrific job of advocating against allowing sentencing to occur in dangerous darkness because of the absence of sound and accessible sentencing data.  Here are some excerpts from the piece (with links from the original):

Judges have various restrictions on what they can say publicly, and for that reason, you don’t often hear our voices in contemporary public-policy debates.  But as momentum builds to address deep inequities in our criminal-justice system, we feel it’s important to highlight a problem lurking in the background that could jeopardize these efforts: Many court systems lack basic data about themselves, including about their criminal-sentencing decisions.  This means that when a judge considers a sentence for a criminal defendant, he or she has no way to evaluate it against others handed down for similar crimes in the same state, or even the same county....

A lack of data collection and analysis is a nationwide problem.  Many states, including Ohio, where we serve, do not have reliable statewide numbers on the criminal sentences they impose.  The states that do compile statistics have significant gaps.  The problem extends beyond sentencing — many states also can’t measure, for instance, what the average bail rate is for various offenses, or even the effectiveness of the bail system.

All of this may strike one as inconceivable: How does a court system lack basic statistics in this technological day and age?  The answer varies by state, but typically, antiquated IT infrastructure in state courts, no uniform requirements on compiling numbers, and a lack of coordination across jurisdictions precludes gathering meaningful numbers and demographics.  And, in many corners, institutional interests are aligned to resist transparency out of a fear of what might show up....

For states that are starting to gather statistics, they are finding troubling, but not surprising, results.  The Massachusetts Supreme Judicial Court commissioned an analysis of statewide numbers to evaluate racial disparities.  Plagued by many data challenges, this effort took several years.  The recently published report showed what many of us know: People of color are vastly overrepresented in the criminal-justice system as defendants; they receive longer sentences than white defendants; and they are typically charged with more serious offenses to begin with (a leverage tool to force plea agreements). When judges see reports that show this is happening in their own courts, they must ask themselves hard questions about their own complicity in these results.   

In 2016, investigative reporters with the Sarasota Herald-Tribune conducted a comparison study that confirmed racial disparities in Florida’s criminal-justice system. One of the examples from their study examined two cases involving armed robbery.  The same judge sentenced a white defendant to two years, but a Black defendant to 26 years — for essentially the same offense.  These two individuals were almost the same age, both had a single prior misdemeanor, and they were rated the same based on Florida’s sentencing guidelines.  When judges have virtually unchecked discretion, and they lack ready access to sentencing data, these discrepancies are bound to continue happening....

Although data challenges are pervasive and a key barrier to criminal-justice reform, they can be solved. In response to the statewide analysis conducted by the Sarasota Herald-Tribune, Florida legislators passed groundbreaking legislation to standardize the way the state gathers and shares information.  The state has already missed some deadlines, but the legislation as designed would render Florida one of the most transparent states in the country from a criminal-data perspective.

Other states are also starting to create comprehensive databases so that informed criminal sentences are accessible to all stakeholders — judges, prosecuting and defense attorneys, defendants, and policy makers.  Currently, the nonprofit Measures for Justice has compiled statistics for 16 states.  Ohio, led by Chief Justice Maureen O’Connor, is in the process of developing a felony-sentencing database with the objective of making information accessible, shareable, and reportable.  It can’t come soon enough.  Indeed, if every state acted quickly, we could solve this issue in short order, and then move on to implement lasting criminal-justice reform that would end mass incarceration.

The goal of these efforts is not to eliminate judicial discretion (judges aren’t robots, after all) but to provide sound analysis to inform judges in the exercise of that discretion.  If everyone has complete access to information, the prosecutor can make an informed sentencing recommendation, the defense counsel can use the data to make his or her case, and the judge can feel secure in knowing that the sentence imposed fits well within the range from other courts around the state.  If the sentence deviates up or down, the judge can give a reason on the record, providing greater transparency in the process.  Objective measures that are comparable, consistent, and reliable can better ensure the equalized application of justice....

The judicial system relies on the trust of our citizenry; public confidence is its lifeblood.  We must act in deliberate and real ways to create change in our courts. And that requires working with all stakeholders — including the community, legislators, and law enforcement.  No one, including judges, can sit back and pretend that the problem of inequality is too intractable or the result of someone else’s decisions any longer.  Collecting and utilizing sentencing data will help build a better, more equitable justice system.

"Institutionalizing inequality in the courts: Decomposing racial and ethnic disparities in detention, conviction, and sentencing"

The title of this post is the title of this recent article published in the latest issue of Criminology authored by Marisa Omori and Nick Petersen.  Here is its abstract:

A significant body of literature has examined racial and ethnic inequalities in sentencing, focusing on how individual court actors make decisions, but fewer scholars have examined whether disparities are institutionalized through legal case factors.  After finding racial and ethnic inequalities in pretrial detention, conviction, and incarceration based on 4 years of felony court data (N = 83,924) from Miami‐Dade County, we estimate nonlinear decomposition models to examine how much of the inequalities are explained by differences in criminal history, charging, and for conviction and incarceration, pretrial detention.

Results suggest that inequality is greatest between White non‐Latinos and Black Latinos, followed by White non‐Latinos and Black non‐Latinos, ranging from 4 to more than 8 percentage points difference in the probability of pretrial detention, 7–13 points difference in conviction, 5–6 points in prison, and 4–10 points difference in jail.  We find few differences between White non‐Latinos and White Latinos.  Between half and three‐quarters of the inequality in pretrial detention, conviction, and prison sentences between White non‐Latino and Black people is explained through legal case factors.  Our findings indicate that inequality is, in part, institutionalized through legal case factors, suggesting these factors are not “race neutral” but instead racialized and contribute to inequalities in court outcomes.

"The Mass Criminalization of Black Americans: A Historical Overview"

The title of this post is the title of this article that is soon to be published in an issue of the Annual Review of Criminology and is authored by Elizabeth Hinton and DeAnza Cook. Here is its abstract:

This review synthesizes the historical literature on the criminalization and incarceration of black Americans for an interdisciplinary audience.  Drawing on key insights from new histories in the field of American carceral studies, we trace the multifaceted ways in which policymakers and officials at all levels of government have used criminal law, policing, and imprisonment as proxies for exerting social control in predominantly black communities from the colonial era to the present.  By underscoring this antiblack punitive tradition in America as central to the development of crime-control strategies and mass incarceration, our review lends vital historical context to ongoing discussions, research, and experimentation within criminology and other fields concerned about the long-standing implications of institutional racism, violence, and inequity entrenched in the administration of criminal justice in the United States from the top down and the ground up.

Sentencing Council for England and Wales issues new sentencing guidelines for firearm offenses that include drawing drawing sentencers' attention to historic disparities

As reported in this official news release, titled "Sentencing guidelines for firearms offences published," the Sentencing Council for England and Wales has released some new sentencing guides that includes an especially interesting element intended to respond to historic ethnic sentencing bias.  Here are the basics from the release (with some emphasis added):

Today, the Council is launching eight new sentencing guidelines to be used by the Crown Court and magistrates’ courts in England and Wales when sentencing firearms offences. The new guidelines will come into effect on 1 January 2021.

The aim of the guidelines, which will apply to adult offenders, is to help the courts deliver appropriate sentence levels for the unlawful possession of firearms and take a consistent approach to sentencing these offences.

Firearms offences are serious.  Some offences carry life imprisonment, some carry sentences of up to 10 years, and some require minimum sentences of five years, but there are currently no sentencing guidelines in the Crown Court and only one for use in magistrates’ courts.

Analysis conducted by the Council in preparation for the guidelines suggests there are disparities in sentence outcomes for some firearms offences based on ethnicity (see the response to consultation, pages 29-32).  The Council has taken measures in the guidelines to address this, including drawing sentencers’ attention to evidence of sentencing disparities in specific offences as an integral part the sentencing process.  The Council is committed to continuing to investigate apparent disparity in sentencing outcomes across all offences and will take further action as and when there is evidence of effective measures that can be applied to guidelines. 

This new article from The Guardian, headlined "Judges told they should consider previous racial bias before sentencing: Guidelines remind the bench black offenders tend to receive longer sentences for firearms offences," provides some additional context.  Here is an excerpt:

Judges and magistrates are to be given explicit reminders for the first time in sentencing guidelines of the disparity in punishments being imposed by the courts on white, Asian and black offenders. The advice is included in formal directions circulated by the sentencing council to those on the bench about how they should assess penalties for firearm offences.

The offences, which cover possession, discharge and manufacture of weapons, can result in a maximum prison term of up to 10 years. The eight new guidelines come into effect on 1 January.

Judges and magistrates are asked to consider the culpability of offenders according to whether, for example, the gun was loaded, shots have been fired, if it was for criminal purpose and the harm caused to any victim. But it is the inclusion of explicit reminders to judges and magistrates that the courts have in the past not achieved racial parity in the distribution of punishments that is highly unusual and novel.

In the guideline for the offence of possessing a firearm without a certificate, for example, judges and magistrates are reminded: “Sentencers should be aware that there is evidence of a disparity in sentence outcomes for this offence which indicates that a higher proportion of Black and Asian offenders receive an immediate custodial sentence than White offenders and that for Black offenders custodial sentence lengths have on average been longer than for White offenders.”

The note continues: “There may be many reasons for these differences, but in order to apply the guidelines fairly sentencers may find useful information and guidance … [in specific sections of] the Equal Treatment Bench Book.”

In another note, on possession of a prohibited weapon, the reminder states: “Sentencers should be aware that there is evidence of a disparity in sentence outcomes for this offence which indicates that where the minimum term applies, a higher proportion of White offenders receive a sentence below the mandatory minimum term, and as a result less severe sentences compared to Black, Asian and Other ethnicity offenders.”...

In 2017, a review by David Lammy QC, commissioned by the Ministry of Justice, highlighted bias against black and minority-ethnic suspects in the criminal justice system of England and Wales.  Among possible reasons for disparities, the sentencing council said, may be the “significance given to previous convictions in sentencing firearms cases.  There is an overrepresentation of black, Asian and other ethnic groups at many stages throughout the criminal justice system compared to the White ethnic group which means that, for example, a black offender may have a more significant record than a White offender of the same age.”

"Police Prosecutions and Punitive Instincts"

The title of this post is the title of this notable new paper authored by Kate Levine and now available via SSRN. Here is its abstract:

This Article makes two contributions to the fields of policing and criminal legal scholarship.  First, it sounds a cautionary note about the use of individual prosecutions to remedy police brutality.  It argues that the calls for ways to ease the path to more police prosecutions from legal scholars, reformers, and advocates who, at the same time, advocate for a dramatic reduction of the criminal legal system’s footprint, are deeply problematic.  It shows that police prosecutions legitimate the criminal legal system while at the same time replaying the racism and ineffectiveness that have been shown to pervade our prison-backed criminal machinery.

The Article looks at three recent trials and convictions of police officers of color, Peter Liang, Mohammed Noor, and Nouman Raja, in order to underscore the argument that the criminal legal system’s race problems are playing themselves out predictably against police officers.  The Article argues that we should take the recent swell of prison abolitionist scholarship to heart when we look at police prosecutions and adds to that literature by exploring this controversial set of defendants that are considered a third rail, even among most abolitionists.

Second, the Article argues that police prosecutions hamper large-scale changes to policing.  By allowing law enforcement to claim that brutality is an aberration, solvable through use of the very system that encourages brutality in the first place, we re-inscribe the failures of policing and ignore the everyday systemic and destructive violence perpetrated by police on communities of color.  In order to achieve racial justice and real police reform, we must reduce our reliance on the police, rather than looking to the criminal legal system to solve this crisis.

New Sentencing Project fact sheet on "Incarcerated Women and Girls"

The Sentencing Project has released today this notable new fact sheet titled "Incarcerated Women and Girls" which examines (pre-COVID) female incarceration trends. I recommend the full piece (which includes lots of informative graphics), and here are excerpts:

Over the past quarter century, there has been a profound change in the involvement of women within the criminal justice system.  This is the result of more expansive law enforcement efforts, stiffer drug sentencing laws, and post-conviction barriers to reentry that uniquely affect women.  The female incarcerated population stands over seven times higher than in 1980. More than 60% of women in state prisons have a child under the age of 18.

Between 1980 and 2019, the number of incarcerated women increased by more than 700%, rising from a total of 26,378 in 1980 to 222,455 in 2019....

Women in state prisons are more likely than men to be incarcerated for a drug or property offense.  Twenty-six percent of women in prison have been convicted of a drug offense, compared to 13% of men in prison; 24% of incarcerated women have been convicted of a property crime, compared to 16% among incarcerated men.

The proportion of imprisoned women convicted of a drug offense has increased from 12% in 1986 to 26% in 2018.

Notable review of New York's recent parole realities

This Times Union has this notable new article on New York's notable parole realities under the full headline "A 'broken' parole process: Data shows widened racial bias: Four years after racial disparities exposed, a state report has yet to be released." Here is how the piece gets started:

A white inmate in a New York prison is significantly more likely on average to be released on parole than a Black or Hispanic person — and that gap has widened in 2020, according to a Times Union analysis of the nearly 19,000 parole board decisions over the last two years.

The disparities continue despite steps by the Department of Corrections and Community Supervision to make the parole board more diverse.  That initiative began about four years ago, after Gov. Andrew M. Cuomo ordered an investigation by the inspector general's office into revelations in a New York Times series that exposed the racial imbalances in parole and prison disciplinary proceedings.  The investigation has languished and no public report has been released.

The inspector general’s office, in an email response to questions, asserted without providing any data that racial disparities have gone down in recent years.  They offered a list of policy changes that have been made, including changes to sentencing guidelines, appeals processes and implicit bias training.

DOCCS, which oversees New York’s 53 state prisons, said the Times Union's analysis was too limited.  Spokesman Thomas Mailey wrote that the analysis was inadequate because detailed factors like disciplinary and program records, positions of the district attorney, sentencing courts and victim impact statements were not considered.

But officials contacted for this story did not provide any evidence countering the Times Union's core findings.  And those findings were averages based on each parole initial hearing and reappearance over the last two years, showing that the racial disparities were prevalent in the outcomes.

In discretionary parole hearings from October 2018 through October 2020, where commissioners from the Board of Parole decided whether incarcerated people should be released from prison, the Times Union’s analysis showed that 41 percent of white people were granted parole, compared to 34 percent of Blacks and 33 percent of Hispanics.  These numbers include initial parole appearances once people meet their minimum sentences, as well as subsequently scheduled reappearances, which are usually every two years.  It excludes more specialized categories such as medical hearings or those relating to deportations.

If Black and Hispanic people were paroled at the same rates as whites over the last two years alone, there would be 675 fewer people behind bars.

Notable new Gallup poll numbers on perceptions of the US criminal justice system

This new Gallup release, headlined "Fewer Americans Call for Tougher Criminal Justice System," reports on new polling number concerning pubic views on the US criminal justice system.  Here are the details:

Americans' belief that the U.S. criminal justice system is "not tough enough" on crime is now half of what it was in Gallup's initial reading of 83% in 1992.  The latest measure, at 41%, is the lowest on record and down slightly from the previous reading in 2016 -- although it remains the view of the plurality.  At the same time, there has been a seven-percentage-point uptick among those who say the system is "too tough" (21%) and no change among those who think it is "about right" (35%).

Americans' perceptions of whether the criminal justice system in the U.S. is too tough, not tough enough or about right in its handling of crime since 1992.  The percentage saying it is not tough enough has fallen from 83% in 1992 to 41% now.  At the same time, the percentage saying it is about right has risen from 12% in 1992 to the current 35%, and those who think it is too tough has increased from 2% in 1992 to 21% now.

Across the five times Gallup has asked this question since 1992, when public perceptions of national and local crime rates were at or near their highest points, there has been a steady decrease in the percentage saying the system is not tough enough and increases in the percentages saying it is too tough or about right.  These changes coincide with declines in crime rates in the U.S.  The latest reading is from Gallup's annual Crime poll, conducted Sept. 30-Oct. 15, 2020.

Americans' faith in the U.S. criminal justice system remains low according to Gallup's 2020 Confidence in Institutions poll conducted earlier this year, and confidence in one element of that system -- the police -- fell to a record-low level in the same poll.  This decline in confidence in the police followed several high-profile deaths of Black Americans at the hands of police officers, including George Floyd, Breonna Taylor and Rayshard Brooks.

Views of the criminal justice system vary by party identification and racial background.  A 58% majority of Republicans and Republican-leaning independents say the criminal justice system is not tough enough.  However, this view is shared by less than half as many Democrats and Democratic-leaning independents (25%), while 37% think the system is about right and 35% too tough.

More White Americans than non-White Americans say the justice system is not tough enough on crime (45% vs. 31%, respectively).  The plurality of non-White adults, 40%, think it is about right, while 26% believe it is too tough.

Americans across these four party and racial subgroups have become significantly less likely to say the criminal justice system is not tough enough, but it has declined the most among Democrats, falling from 62% in 2000 to 25% today.  Over the same period, Democrats' view that the system is too tough has grown from 6% to 35%.

Given two options for approaches to lowering the U.S. crime rate, more Americans prefer putting money and effort into addressing social and economic problems such as drug addiction, homelessness and mental health (63%) rather than putting money and effort into strengthening law enforcement (34%).

"The Intersectionality of Age and Gender on the Bench: Are Younger Female Judges Harsher with Serious Crimes?"

The title of this post is the title of this new paper now available via SSRN authored by Morris Hoffman, Francis Shen, Vijeth Iyengar and Frank Krueger. Here is its abstract:

We analyzed sentencing data from sixteen years of criminal trials in the State of Colorado, consisting of almost 3,000 individual sentences, and discovered an interaction effect of harm, gender, and age not reported in any of the empirical or experimental literature.  Young female judges punished high harm crimes substantially more than their male and older female colleagues.  These results, if confirmed, could have significant strategic and tactical implications for practicing lawyers.  They may also inform policies surrounding judicial selection, education, training, and retirement.

"Life Without Parole Sentencing in North Carolina"

The title of this post is the title of this notable new paper authored by Brandon Garrett, Travis Seale-Carlisle, Karima Modjadidi and Kristen Renberg now available via SSRN.  Here is its abstract:

What explains the puzzle of life without parole (LWOP) sentencing in the United States?  In the past two decades, LWOP sentences have reached record highs, with over 50,000 prisoners serving LWOP.  Yet during this same period, homicide rates have steadily declined.  The U.S. Supreme Court has limited the use of juvenile LWOP in Eighth Amendment rulings. Further, death sentences have steeply declined, reaching record lows.  Although research has examined drivers of incarceration patterns for certain sentences, there has been little research on LWOP imposition.

To shed light on what might explain the sudden rise of LWOP, we examine characteristics of the more than 1,627 cases in which LWOP was imposed from 1995 to 2017, in North Carolina, one of the states that imposes the largest numbers of these sentences.  We begin by analyzing defendant race, crime, and sentence patterns by county.  We associate LWOP with homicide rates, and examine interactions between homicide, victim race, and prior LWOP sentencing. 

This first empirical analysis of adult LWOP sentences finds important local variations in its imposition.  We find that as the homicide rate increases within a county, we observe fewer LWOP sentences.  We find that fewer LWOP sentences are predicted to occur as the number of black victim homicides increase in a county, but no such relationship is found when considering the number of white victim homicides.  Finally, we find a strong path dependency and concentration of LWOP sentences in counties, where counties that have imposed LWOP sentences in the past are more likely to continue to do so.  These findings have implications for efforts to reconsider the most severe sentences in the U.S., and they suggest that prosecutorial discretion in seeking long sentences will be important subjects for future research and policy.

Digging carefully into what the FIRST STEP Act has, and has not, really achieved

Malcolm C. Young, a long-time justice reform advocate, sent me an interesting new report he has completed titled "How Much Credit Should Trump be Given for the First Step Act?".  This new report, which I recommend in full, is a continuation of some research which was recently published in the Journal of Community Corrections under the title "The First Step Act and Reentry."  That Fall 2019 article makes the case that "as a law intended to improve federal reentry, the FSA falls short."  Young's new report, which can be downloaded below, is a detailed effort to pushback on some of Prez Trump's claims about "his" achievements through the FIRST STEP Act.  Here is an excerpt from the start of the report:

Trump is entitled to take credit for signing the FSA into law and the reductions in the federal prison use that followed. But the FSA, which was drafted by legislators, is neither the first nor the largest reform in recent years.  For examples, a reform in sentences for crack cocaine at the close of the George Bush administration reduced the use of federal prisons by close to three-quarters of the reduction obtained from the FSA.  A downward adjustment in drug sentences that cleared the United States Sentencing Commission (USSC) during the Obama administration resulted in nearly half-again as much a reduction in prison use (146%) as resulted from the FSA at the end of its first year.  And, finally, including the downward adjustment in drug sentences, Obama-era reforms resulted in more than double (230%) the FSA’s reduction in prison use in its first year.

As to benefits for Black Americans, the FSA’s reductions in sentences for crack cocaine benefited Black individuals disproportionally, as intended, yet very little more than did three similarly structured reforms intended to alleviate racial disparities in federal drug sentencing.  The FSA’s other provisions benefit smaller proportions of Black individuals.

As to reentry, the Trump administration's claim that, “[t]he landmark First Step Act enacted commonsense criminal justice reform that is helping prisoners gain a new lease on life and is making America safer” is, regrettably, simply not true.  These aspects of the FSA are not working.  But the fault lies more with Congress than Trump.

Download Trump and the First Step Act October 2020

"Felony Disenfranchisement and the Nineteenth Amendment"

The title of this post is the title of this interesting essay just recently posted to SSRN and authored by Michael Gentithes. Here is its abstract:

Today’s arguments in support of felony disenfranchisement laws bear striking similarities to the arguments of anti-suffragists more than a century earlier.  Both suggest that a traditionally subordinated class of citizens is inherently incapable of bearing the responsibility that the right to vote entails.  Both argue that some potential votes are somehow less worthy than others, and thus the authors of those votes ought to be excluded from the marketplace of political ideas.  And both assert a distinction between the votes of some citizens thought to be of higher political value, and those thought unworthy of having their voices counted in the political arena.

This Article examines the historical response to those arguments and suggests that they can be applied forcefully in the contemporary debate over felony disenfranchisement. Suffragists raised two arguments in response to coverture-based contentions against women enfranchisement: first, that men simply did not represent women’s interests in politics, instead subordinating them ever further both in family structures and the public sphere; and second, that women had something important to add to the political conversation that would be missing as long as they were excluded from the debate.  Similarly, felony disenfranchisement laws are based upon the fiction that there is a distinction between good votes of most citizens and bad votes of criminals, and therefore excluding former felons’ voices from the political arena is acceptable because their interests will be sufficiently served by the good votes of others.  But the voices of former felons should be heard, both because of the perspective those voices will bring to modern problems caused by growing incarceration rates, and because those voices may add important and worthy ideas to the political marketplace that would be absent if their contributions are excluded.

US Department of Justice sets two more execution dates, including for the only woman on federal death row

In this July post I wondered aloud "How many federal death row prisoners does Attorney General William Barr want to see executed in 2020?".  My main point in that post was that, after the completion of an initial three federal executions that month thanks to SCOTUS lifting lower court stays, it seemed to me that AG Barr would likely be able to have completed how ever many executions he decides to set.  Thereafter, the US Justice Department set two more execution dates for August and two more for September, and those executions were completed to bring the 2020 total of federal executions up to seven. 

For anyone who might have thought AG Barr would be content with seven execution in 2020, this DOJ press release from late Friday afternoon might have come as a bit of a surprise.  This release is titled  "Executions Scheduled for Two Federal Inmates Convicted of Heinous Murders" and here are excerpts:

Attorney General William P. Barr today directed the Federal Bureau of Prisons to schedule the executions of two federal death-row inmates, both of whom were convicted of especially heinous murders at least 13 years ago.

• Lisa Montgomery fatally strangled a pregnant woman, Bobbie Jo Stinnett, cut open her body, and kidnapped her baby.  In December 2004, as part of a premeditated murder-kidnap scheme, Montgomery drove from her home in Kansas to Stinnett’s home in Missouri, purportedly to purchase a puppy.  Once inside the residence, Montgomery attacked and strangled Stinnett—who was eight months pregnant—until the victim lost consciousness.  Using a kitchen knife, Montgomery then cut into Stinnett’s abdomen, causing her to regain consciousness.  A struggle ensued, and Montgomery strangled Stinnett to death.  Montgomery then removed the baby from Stinnett’s body, took the baby with her, and attempted to pass it off as her own.  Montgomery subsequently confessed to murdering Stinnett and abducting her child.  In October 2007, a jury in the U.S. District Court for the Western District of Missouri found Montgomery guilty of federal kidnapping resulting in death, and unanimously recommended a death sentence, which the court imposed....  Montgomery is scheduled to be executed by lethal injection on December 8, 2020, at U.S. Penitentiary Terre Haute, Indiana. 
• Brandon Bernard and his accomplices brutally murdered two youth ministers, Todd and Stacie Bagley, on a military reservation in 1999.  After Todd Bagley agreed to give a ride to several of Bernard’s accomplices, they pointed a gun at him, forced him and Stacie into the trunk of their car, and drove the couple around for hours while attempting to steal their money and pawn Stacie’s wedding ring.  While locked in the trunk, the couple spoke with their abductors about God and pleaded for their lives.  The abductors eventually parked on the Fort Hood military reservation, where Bernard and another accomplice doused the car with lighter fluid as the couple, still locked in the trunk, sang and prayed.  After Stacie said, “Jesus loves you,” and “Jesus, take care of us,” one of the accomplices shot both Todd and Stacie in the head—killing Todd and knocking Stacie unconscious.  Bernard then lit the car on fire, killing Stacie through smoke inhalation.  In June 2000, a jury in the U.S. District Court for the Western District of Texas found Bernard guilty of, among other offenses, two counts of murder within the special maritime and territorial jurisdiction of the United States, and unanimously recommended a death sentence....  Bernard is scheduled to be executed by lethal injection on December 10, 2020, at U.S. Penitentiary Terre Haute, Indiana.  One of his accomplices, Christopher Vialva, was executed for his role in the Bagleys’ murder on September 22, 2020.

Recent prior related posts:

• Justice Department announces the scheduling of four new federal execution dates
• SCOTUS, by 5-4 vote, vacates new injunction that had been blocking scheduled federal executions ... UPDATE: execution of Daniel Lewis Lee now completed
• Federal execution déjà vu: after SCOTUS votes 5-4 to vacate injunction, feds complete another morning lethal injection 
• Feds, revving up machinery of death, complete third execution of week
• How many federal death row prisoners does Attorney General William Barr want to see executed in 2020?
• Amidst seemingly little attention, federal government seemingly poised to carry out two more executions this week
• Native American death sentence carried out as feds complete record-setting fourth execution of 2020 
• Federal government completes its fifth execution of 2020
• Federal government completes its sixth execution in 2020 
• Federal government completes its seventh (and final?) execution in 2020

UPDATE: I just realized that I failed to note this September 30 DOJ press release concerning another execution date set for November 19:

Attorney General William P. Barr today directed the Federal Bureau of Prisons to schedule the execution of Orlando Cordia Hall, who was sentenced to death after kidnapping, raping, and murdering a 16-year-old girl in 1994....  In October 1995, a jury in the U.S. District Court for the Northern District of Texas found Hall guilty of, among other offenses, kidnapping resulting in death, and unanimously recommended a death sentence, which the court imposed.  Hall’s convictions and sentences were affirmed on appeal more than 20 years ago, and his initial round of collateral challenges failed nearly 15 years ago.  In 2006, Hall received a preliminary injunction from a federal district court in Washington, D.C., based on his challenge to the then-existing federal lethal-injection protocol.  That injunction was vacated by the district court on Sept. 20, 2020, making Hall the only child murderer on federal death row who is eligible for execution and not subject to a stay or injunction.  Hall’s execution is scheduled for Nov. 19, 2020, at U.S. Penitentiary Terre Haute, Indiana.

Spotlighting new research detailing increased post-release deaths for those placed in solitary confinement

I sense that we have known for many decades about the profound harms that solitary confinement can created for mental and physical health, and yet there are still tens of thousands of persons subject to this extreme form of imprisonment. And thanks to this new Prison Policy Initiative piece, titled "New data: Solitary confinement increases risk of premature death after release," I learned of new research documenting how time spent in solitary confinement increases the risk of deaths by suicide, homicide, and opioid overdose.  This research was published in a medical journal late last year under the title "Association of Restrictive Housing During Incarceration With Mortality After Release."  Here is part of a summary of the research by Andrea Fenster of PPI :

A recently published study of people released from North Carolina prisons confirms what many have long suspected: solitary confinement increases the risk of premature death, even after release.  Personal stories, like those of Kalief Browder’s isolation and subsequent suicide, are canaries in the coal mine.  Underneath seemingly isolated events, researchers now find that solitary confinement is linked to more deaths after release from prison.  These preventable deaths aren’t outliers; in the U.S., where the use of solitary confinement is widespread, an estimated 80,000 people are held in some form of isolation on any given day, and in a single year, over 10,000 people were released to the community directly from solitary.

The new study shows that the effects of solitary confinement go well beyond the immediate psychological consequences identified by previous research, like anxiety, depression, and hallucinations.  The authors, from the University of North Carolina, Emory University, and the North Carolina Departments of Public Safety and Public Health, find that any amount of time spent in solitary confinement increases the risk of death in the first year after individuals return to the community, including deaths by suicide, homicide, and opioid overdose....

The study identifies two additional factors correlated with a heightened risk of death after release: race and the amount (length and frequency) of solitary confinement.  All incarcerated people of color are more likely to die within a year of release, and the experience of solitary confinement only amplifies this racial disparity.  A previous study found that, compared to their share of the total prison population, Black men and women are overrepresented in solitary confinement, exposing them disproportionately to its harms. And unsurprisingly, more frequent placements in solitary confinement — as well as longer stays — are associated with worse outcomes across both white and nonwhite populations.

The Sentencing Project releases new disenfranchisement report, "Locked Out 2020: Estimates of People Denied Voting Rights Due to a Felony Conviction"

Via email this afternoon I received news of this notable new Sentencing Project report titled "Locked Out 2020: Estimates of People Denied Voting Rights Due to a Felony Conviction." Here is part of its "overview":

In the past 25 years, half the states have changed their laws and practices to expand voting access to people with felony convictions.  Despite these important reforms, 5.2 million Americans remain disenfranchised, 2.3 percent of the voting age population.

In this presidential election year, the question of voting restrictions, and their disproportionate impact on Black and Brown communities, should receive greater public attention....

For the first time, we present estimates of the percentage of the Latinx population disenfranchised due to felony convictions.  Although these and other estimates must be interpreted with caution, the numbers presented here represent our best assessment of the state of felony disenfranchisement as of the November 2020 election.  Our key findings include the following:

• As of 2020, an estimated 5.17 million people are disenfranchised due to a felony conviction, a figure that has declined by almost 15 percent since 2016, as states enacted new policies to curtail this practice.  There were an estimated 1.17 million people disenfranchised in 1976, 3.34 million in 1996, 5.85 million in 2010, and 6.11 million in 2016.

• One out of 44 adults — 2.27 percent of the total U.S. voting eligible population — is disenfranchised due to a current or previous felony conviction.

• Individuals who have completed their sentences in the eleven states that disenfranchise at least some people post-sentence make up most (43 percent) of the entire disenfranchised population, totaling 2.23 million people.

• Rates of disenfranchisement vary dramatically by state due to broad variations in voting prohibitions.  In three states — Alabama, Mississippi, and Tennessee more than 8 percent of the adult population, one of every thirteen people, is disenfranchised.

• We estimate that nearly 900,000 Floridians who have completed their sentences remain disenfranchised, despite a 2018 ballot referendum that promised to restore their voting rights.  Florida thus remains the nation’s disenfranchisement leader in absolute numbers, with over 1.1 million people currently banned from voting — often because they cannot afford to pay court-ordered monetary sanctions or because the state is not obligated to tell them the amount of their sanction.

• One in 16 African Americans of voting age is disenfranchised, a rate 3.7 times greater than that of non-African Americans.  Over 6.2 percent of the adult African American population is disenfranchised compared to 1.7 percent of the non-African American population.

• African American disenfranchisement rates vary significantly by state.  In seven states — Alabama, Florida, Kentucky, Mississippi, Tennessee, Virginia, and Wyoming — more than one in seven African Americans is disenfranchised, twice the national average for African Americans.

• Although data on ethnicity in correctional populations are still unevenly reported, we can conservatively estimate that over 560,000 Latinx Americans or over 2 percent of the voting eligible population are disenfranchised.

• Approximately 1.2 million women are disenfranchised, comprising over one-fifth of the total disenfranchised population.

"Addressing Trauma and Victimization in Women’s Prisons"

The title of this post is the title of this notable new research report from folks at the Urban Institute. The full 58-page report is available here, and here is the abstract from this report page:

Women are the fastest-growing incarcerated population in the United States.  Despite this drastic increase, correctional institutions often lack awareness and understanding of the victimization that many — if not most — incarcerated women experience before incarceration (Bloom 2015).  Many women bring past trauma into prison settings, where they often experience similar violence, abuse, and trauma.  In 2017, the National Institute of Justice funded the Urban Institute — and its partners the Center for Effective Public Policy, the Correctional Leaders Association, and the National Center for Victims of Crime — to conduct a national scan of practice to examine the extent to which correctional facilities provide services and programming that address incarcerated women’s prior and current trauma and victimization experiences.

The scan of practice drew on data from semi-structured interviews with leaders in 41 state departments of corrections (DOCs), 15 women’s prisons using innovative and/or comprehensive approaches to address trauma, case studies of three women’s facilities and a national survey of state domestic violence (DV) and sexual assault (SA) coalitions. Analyses suggest wide variation in how DOCs address women’s past victimization and trauma with most DOCs relying on programming and partnerships with local victim services providers or other community-based organizations to address women’s trauma; few provide robust victim services to incarcerated women.  We discuss these and other findings in the report along with the challenges DOCs face in addressing women’s prior trauma and victimization, and recommendations for how to make correctional facilities more trauma responsive.

Notable perspectives from the Prairie State on "Principles to Build a More Equitable Criminal Justice System"

I just noticed, and found quite notable, this new press release from yesterday coming from the Illinois Governor's office.  The document is fully titled "Gov. Pritzker Proposes Principles to Build a More Equitable Criminal Justice System: Criminal Justice Reform Principles Aim to Modernize Criminal Code, End Cycles of Recidivism, and Increase Police Accountability."  I'd recommend the lengthy document in full, and here is the statement of "seven principles for an equitable criminal justice system" that are at the heart of the document (with bolding in the original):

The seven principles for an equitable criminal justice system are the following:

• End the use of the cash bail system and limit pretrial detention to only those who are a threat to public safety. The governor remains committed to ending a system that disproportionately forces low-income families and people of color into a disruptive cycle of unearned detention and instability.  The cash bail system would be replaced by a risk assessment to determine the likelihood of a defendant's appearance at trial and if there is a threat to public safety posed by a defendant's pre-trial release.
 
• Modernize sentencing laws on theft and drug offenses and use a public health approach to address mental health and addiction. Illinois will decrease unnecessary admissions into prison, match modernized sentencing standards across the country, and limit criminal justice system involvement for non-violent offenders who need and would benefit from a public health intervention. 
 
• Reduce excessive lengths of stay in prison by providing pathways for people to earn opportunities for rehabilitation. The state will increase access to sentence credit and time-limited supervised release while limiting penalty enhancements and short-term commitments that disproportionately trap low-income families and people of color in generational cycles of incarceration.
 
• Prioritize rehabilitation and reduce the risk of recidivism by increasing access to housing and healthcare for returning residents.  The state is committed to expanding opportunities, supports, and services for people who are exiting the prison system so that they are set up to succeed upon return to their communities, and which will save taxpayers money by reducing the number of people trapped in a cycle of recidivism. 
 
• Increase police accountability and transparency for police officers and police departments. Illinois will set the standard for the nation in professionalizing and setting statewide standards for police officers.  We will advocate for licensing of police officers, strengthen the role of the State Police Merit Board, work alongside police departments to ensure compliance and proper use of body-worn cameras, create a state-level avenue to investigate systemic police misconduct, and remove barriers for civilians to report officer misconduct, like the signed affidavit requirement.
 
• Update and strengthen statewide standards for use of force by police officers. Illinois is committed to modernizing the legal standard for use of force and implementing common sense policies and trainings that are consistent with best practices and will improve police-community relations.  This includes requiring police officers to apply first aid after using force, prohibiting no-knock search warrants, requiring the use of de-escalation techniques, and requiring officers  to intervene and report when excessive force is used by another officer. 
 
• Improve interactions with police by decriminalizing minor non-violent offenses, improving police response to crowd control, and increasing language and disability access.  By decriminalizing minor non-violent offenses, creating policies and trainings for police response to non-violent crimes and protests, and increasing language and disability access for civilians, Illinois will establish a framework to improve community safety and trust.