Sentencing Law and Policy

"Prosecutors' Vital Role in Reforming Criminal Justice"

The title of this post is the headline of this recent Governing commentary authored by Lucy Lang.  Here are excerpts:

The nation's criminal-justice system is at a pivotal moment. With rising public revulsion at the brutality inflicted on Black Americans by law enforcement, racial-justice groups have brought conversations around racial disparities and the justice system into the mainstream.

Prosecutors have played a historic role in exacerbating these racial disparities, and they have an equally vital role to play in the systemic reforms that are needed to turn an unfair system around.  To ensure that reforms are set up to succeed, it is incumbent on modern prosecutors to collect as much relevant data as they can and analyze it to measure disparities and evaluate policies that seek to create a more-just system.  To that end, prosecutors will benefit from a careful review of a recently published report from the Council on Criminal Justice (CCJ) in seeking to divert more cases successfully out of the system.

Promisingly, this national study of data from 2000 to 2016 reveals a significant reduction in racial disparities across most facets of the criminal-justice system.  The numbers show that during that period crime declined and, consistent with public demand, so did arrests.  In addition to shrinking the system's impact overall, the CCJ report reflects that front-end policies designed to reduce arrests and divert cases from criminal prosecution early in the process also reduced differences in treatment across race.

Seeking to further these front-end decreases, a new set of materials from the Institute for Innovation in Prosecution and Criminal Law Practitioner about prosecutor-led diversion details data-collection processes in different district attorneys' offices and how data can inform diversion programs for low-level crimes....

A vital area for data analysis related to the potential for diversion programs for violent crime is the role that a charged person's criminal history should play in indictment, sentencing and release decisions.  A person who has prior convictions often faces ever-increasing penalties for new crimes, subject to the exercise of prosecutorial discretion.  A first-time arrest for a felony may result, for example, in the offer of a pre-indictment misdemeanor plea by the prosecutor, while a second or third felony arrest is more likely to result in an indictment.  At the pleading stage, someone with no prior convictions facing a felony indictment is more likely to avoid incarceration compared to a person with prior convictions.

This undermines the notion that once someone has done his or her time, they have repaid whatever debt to society the crime purportedly incurred.  Given the uneven application of the system across demographic categories, such practices may contribute to racially disparate sentence recommendations from prosecutors as well as disparate denials of release by parole boards.

Criminal-justice reformers face some hard questions. Chief among these are how to appropriately respond to crimes of violence and whether racial disparities might be reduced by removing the criminal history of a person charged with a crime as a substantial factor during sentencing. It is incumbent upon prosecutors to look carefully at their data and consider diversion options at each stage of their decision-making.

Oregon drug decriminalization initiative would produce "significant reductions in racial/ethnic disparities" according to state commission

As reported in this local press piece, headlined "Oregon Criminal Justice Commission: Initiative Petition 44 Will Nearly Eliminate Racial Disparities for Drug Arrests, Convictions," a notable state commission has reported that a notable state ballot initiative will have a notable impact on equity in the criminal justice system. Here are the basics from the press piece:

Racial disparities in drug arrests will drop by 95% if Oregon voters pass a drug treatment and decriminalization measure in November.  That’s according to a new, independent government research report written by the Oregon Criminal Justice Commission.  Oregon voters will see a summary of the report in the voter pamphlet that the Oregon Secretary of State mails to every registered Oregon voter in November.

In addition to a reduction in arrest disparities, conviction disparities would be “narrowed substantially” if Initiative Petition 44 passes, the report said, and overall convictions would fall.  For example, convictions of Black and Indigenous Oregonians would drop by 94%....

The analysis by the Oregon Criminal Justice Commission is the first one ever prepared for a ballot measure.  Lawmakers have had the ability to ask for such an analysis since 2014 and did this year after being urged to do so by the More Treatment campaign, which supports Initiative Petition 44....

Initiative Petition 44, which will soon get a ballot measure number, changes Oregon’s approach to drugs.  The initiative would expand access around the state to drug addiction treatment and recovery services, paid for with a portion of taxes from legal marijuana sales. In addition, the measure decriminalizes low-level drug possession.  It does not legalize drugs.

About 8,900 Oregonians are arrested every year in cases where simple drug possession is the most serious offense, according to the latest numbers from the Oregon Criminal Justice Commission.  That’s the equivalent of about one arrest an hour.  Black and Indigenous Oregonians are disproportionately targeted....

In addition to decriminalizing drug possession, Initiative Petition 44 would specifically provide funding for treatment, peer support, housing, and harm reduction. Marijuana tax revenue that’s in excess of $45 million a year would help pay for it.  Oregon expects to collect roughly $284.2 million in marijuana tax revenue during the 2021-2023 biennium, or roughly $140 million a year.

Initiative Petition 44 has received more than 70 endorsements from organizations across the state, including the Coalition of Communities of Color, NAACP Portland, Eugene-Springfield NAACP, Unite Oregon, Central City Concern, the Confederated Tribes of Grand Ronde and more.  The MoreTreatment campaign to pass Initiative Petition 44 does not face any organized opposition.

The full seven-page analysis by the Oregon Criminal Sentencing Commission is available at this link, and here is part of the conclusion:

Overall, if IP 44 were to pass, the Oregon Criminal Justice Commission estimates that approximately 1,800 fewer Oregonians per year would be convicted of felony PCS [possession of controlled substances]  and nearly 1,900 fewer Oregonians per year would be convicted of misdemeanor PCS.  Prior research suggests this drop in convictions will result in fewer collateral consequences stemming from criminal justice system involvement (Ewald and Uggen, 2012), which include the reduced ability to find employment, reduced access to housing, restrictions on the receipt of student loans, inability to obtain professional licensure, and others.

The CJC estimates that IP 44 will likely lead to significant reductions in racial/ethnic disparities in both convictions and arrests....

Similarly, it is estimated that disparities in arrests for PCS would fall as well. If arrests follow the same trends as were estimated for convictions, then the overall number of PCS arrests would fall from just over 6,700 to 615. In this case, the significant overrepresentation of Black Oregonians as measured by the RDR among those arrested for PCS would fall substantially, being reduced by nearly 95 percent. In addition, Native American Oregonians would go from being overrepresented, to underrepresented compared to white individuals.

Study details how Georgia execution rate is "substantially greater" for those convicted of killing white victims than for those convicted of killing black victims

This New York Times article, headlined "A Vast Racial Gap in Death Penalty Cases, New Study Finds," highlights new research on the intersection of race and the death penalty.  Here are excerpts from the press piece with a few of the original links to the original research:

Black lives do not matter nearly as much as white ones when it comes to the death penalty, a new study has found.  Building on data at the heart of a landmark 1987 Supreme Court decision, the study concluded that defendants convicted of killing white victims were executed at a rate 17 times greater than those convicted of killing Black victims.

There is little chance that the new findings would alter the current Supreme Court’s support for the death penalty. Its conservative majority has expressed impatience with efforts to block executions, and last month it issued a pair of 5-to-4 rulings in the middle of the night that allowed federal executions to resume after a 17-year hiatus.

But the court came within one vote of addressing racial bias in the administration of the death penalty in the 1987 decision, McCleskey v. Kemp. By a 5-to-4 vote, the court ruled that even solid statistical evidence of race discrimination in the capital justice system did not offend the Constitution....

The McCleskey decision considered a study conducted by David C. Baldus, a law professor who died in 2011.  It looked at death sentences rather than executions, and it made two basic points.  The first was that the race of the defendant does not predict the likelihood of a death sentence.  The second was that the race of the victim does.  Killers of white people were more than four times as likely to be sentenced to death as killers of Black people, Professor Baldus found.

The new study, published in The Harvard Civil Rights-Civil Liberties Law Review, examined not only death sentences but also whether defendants sentenced to death were eventually executed. “The problematic sentencing disparity discovered by Baldus is exacerbated at the execution stage,” wrote the study’s authors, Scott Phillips and Justin Marceau of the University of Denver. Professor Baldus’s study examined more than 2,000 murders in Georgia from 1973 to 1979, controlling for some 230 variables.

Though some have argued that Professor Baldus did not consider every possible variable, few question his bottom-line conclusion, and other studies have confirmed it. In 1990, the General Accounting Office, now called the Government Accountability Office, reviewed 28 studies and determined that 23 of them found that the race of the victim influenced “the likelihood of being charged with capital murder or receiving a death sentence.” “This finding was remarkably consistent across data sets, states, data collection methods and analytic techniques,” the report said. A 2014 update came to a similar conclusion.

One factor Professor Baldus could not analyze, given the decades that often pass between sentencings and executions, was whether the race of the victim correlated to the likelihood of the defendant being put to death. The new study, the product of exhaustive research, supplied the missing information. It found that 22 of the 972 defendants convicted of killing a white victim were executed, as compared with two of the 1,503 defendants convicted of killing a Black victim.

The new study also confirmed just how rare executions are. Of the 127 men sentenced to death in the Baldus study, 95 left death row thanks to judicial action or executive clemency; five died of natural causes; one was executed in another state; one escaped (and was soon beaten to death in a bar fight); and one remains on death row.

A more general and less granular 2017 study compared two sets of nationwide data: homicides from 1975 to 2005 and executions from 1976 to 2015. Its conclusions were similarly striking. About half of the victims were white, that study found, but three-quarters of defendants put to death had killed a white person. About 46 percent of the victims were Black, but only 15 percent of defendants who were executed had killed a Black person.

Eric M. Freedman, a law professor at Hofstra, said courts and lawmakers had failed to confront the question of racial bias in the administration of capital punishment. “The continuing adherence of the Supreme Court to McCleskey is a continuing statement that Black lives do not matter,” he said. “The continuing failure of Congress and the state legislatures to remedy the situation is a continuing admission that the states are unable to run racially unbiased death penalty systems.”

I always find in-depth exploration of the Baldus study and McClesky so interesting and important, in part because David Baldus discovered that even in Georgia in the 1970s, it appears that the race of the defendant had relatively little or no impact on who was ultimately sentenced to death.  That strikes me as itself a remarkable and encouraging finding, even though he reached the corresponding and discouraging finding that the race of the victim did have a huge impact on who was ultimately sentenced to death.  But, as Prof Randall Kennedy astutely explored in this terrific article published right after the McClesky decision, one logical response to these kinds of race-of-the-victim disparity studies is to call for far more executions of persons who kill black victims to signal in this context that black lives matter as much as white ones.

According to my quick searching using the DPIC database, it appears that only 3 of 25 persons executed in the United States in 2018 had black victims, whereas in 2019 there were 6 of 22 persons executed in the US who had black victims.  Should we be "celebrating" that black lives mattered more than twice as much in the operation of the US machinery of death in 2019 than in 2018?  Circa 2020 when the feds are now poised to be the most active of executioners, should we all be urging Attorney General Barr, as he continues adding names to the list of condemned to now be marched into the federal death chamber, to be working harder to pick from federal death row those killers with black victims?

My point here is just to recall in this context Prof Kennedy's important insight that the most ready response to these kinds of race-of-the-victim disparities may be to encourage more (capital) punishment, especially if we end up talking about these disparities in terms of certain victims not getting equal justice.   I would also add that I wish there was a lot more of this kind of race-of-the-victim sentencing disparity conducted concerning non-capital crimes.  I suspect and fear that there may be even more pernicious individual and community harms resulting from persistently unequal sentencing for those who commit sexual or property offenses with black victims.  

"Criminal Deterrence: A Review of the Missing Literature"

The title of this post is the title of this notable new paper authored by Alex Raskolnikov and recently posted to SSRN.  Here is its abstract:

This review of the criminal deterrence literature focuses on the questions that are largely missing from many recent, excellent, comprehensive reviews of that literature, and from the literature itself.  By “missing” I mean, first, questions that criminal deterrence scholars have ignored either completely or to a large extent.  These questions range from fundamental (the distributional analysis of the criminal justice system), to those hidden in plain sight (economic analysis of misdemeanors), to those that are well-know yet mostly overlooked (the role of positive incentives, offender’s mental state, and celerity of punishment).  I also use “missing” to refer to the areas where substantial relevant knowledge exists but is largely disregarded within the criminal deterrence research program.  The empirical analysis of environmental and tax compliance are two stark examples.  Finally, I stretch “missing” to describe topics that have been both studied and reviewed, but where substantial challenges remain.  These include the theoretical explanation for the role of offense history, the proper accounting for the offender’s gains, the estimation of the costs of various crimes, and the cost-benefit analysis of crime-reduction policies.

Among the literature’s missing pieces, several stand out both on their own and because they combine to produce a highly unfortunate result.  First, the literature makes only a minor effort to estimate the cost of crime, and essentially no effort to estimate the cost of white-collar offenses.  Combined with no centralized reporting of white-collar crimes and, therefore, no empirical analysis of them, the literature adds to the impression — not supported by the available evidence — that street crime is a great social problem while white-collar crime is a minor one.  Second, the literature fails to treat misdemeanors (and misdemeanor enforcement) as an independent subject of study.  This creates an impression — also unjustified — that thirteen million or so misdemeanor charges a year — and countless millions of stops, frisks, and interrogations that lead to no charges — all heavily skewed by race and class — are not a major social problem either. Third, the literature is only starting to develop a benefit-cost analysis of various crime-reducing strategies.  This analysis almost exclusively considers measures reflected in the optimal deterrence model and, therefore, internal to the criminal justice system.  This creates an impression — almost surely false — that deterrence is the only means of reducing future crime. Finally, the literature ignores distributional analysis altogether, even though the burdens of crime and the criminal justice system vary dramatically, predictably, and disturbingly by race and income.  By disregarding this variation, the literature may be reinforcing it. 

For all these reasons, the criminal deterrence literature may well be contributing to the overwhelming, singular focus of American society and law enforcement on the forceful deterrence of street crime. Addressing the missing pieces would enrich the literature, expand its appeal and policy-relevance, and enable academics to contribute to the effort of setting the US criminal justice system on the path of long-overdue structural reforms.

Big new ACLU and HRW report details "How Probation and Parole Feed Mass Incarceration in the United States"

The quoted portion of the title of this post is part of the title of this huge new report by Human Rights Watch and the American Civil Liberties Union fully titled "Revoked: How Probation and Parole Feed Mass Incarceration in the United States." This important 200+ page report includes these passages in its "summary":

Probation, parole, and other forms of supervision are marketed as alternatives to incarceration in the United States. Supervision, it is claimed, will keep people out of prison and help them get back on their feet.

Throughout the past 50 years, the use of probation (a sentence often imposed just after conviction) and parole (served after incarceration) has soared alongside jail and prison populations. As of 2016, the last year for which supervision data is available, 2.2 million people were incarcerated in United States jails and prisons, but more than twice as many, 4.5 million people — or one in every 55 — were under supervision.  Supervision rates vary vastly by state, from one in every 168 people in New Hampshire, to one in every 18 in Georgia.

Over the past several decades,arbitrary and overly harsh supervision regimes have led people back into US jails and prisons — feeding mass incarceration.  According to the Bureau of Justice Statistics (BJS), in the late 1970s, 16 percent of US state and federal prison admissions stemmed from violations of parole and some types of probation.  This number climbed to a high of 36 percent in 2008, and, in 2018, the last year for which data is available, was 28 percent.  A different set of data for the previous year from the Council of State Governments, which includes all types of probation violations — but is limited to state prison populations — shows that 45 percent of all US state prison admissions stemmed from probation and parole violations.  These figures do not include people locked up for supervision violations in jails, for which there is little nationwide data.  Black and brown people are both disproportionately subjected to supervision and incarcerated for violations.

This report documents how and why supervision winds up landing many people in jail and prison — feeding mass incarceration rather than curtailing it.  The extent of the problem varies among states, and in recent years multiple jurisdictions have enacted reforms to limit incarceration for supervision violations.  This report focuses on three states where our initial research indicated that — despite some reforms — the issue remains particularly acute: Georgia, Pennsylvania, and Wisconsin.

Drawing on data provided by or obtained from these states, presented here for the first time, and interviews with 164 people incarcerated for supervision violations, family members, government officials, practitioners, advocates, and experts, we document the tripwires in these states leading to incarceration.  These include burdensome conditions imposed without providing resources; violations for minor slip-ups; lengthy incarceration while alleged violations are adjudicated; flawed procedures; and disproportionately harsh sentences for violations.  The report shows that, nationwide,most people locked up for supervision violations were not convicted of new offenses — rather, they were incarcerated for breaking the rules of their supervision, such as for using drugs or alcohol, failing to report address changes, or not following the rules of supervision-mandated programs.  Of those who were incarcerated for new offenses, in our focus states, many were for conduct like possessing drugs; public order offenses such as disorderly conduct or resisting arrest; misdemeanor assaultive conduct; or shoplifting....

The root causes of these violations, the report documents, are often a lack of resources and services, unmet health needs, and racial bias.The report also draws attention to marked racial disparities in who is subjected to supervision and how authorities enforce it. In practice, supervision in many parts of the US has become a system to control and warehouse people who are struggling with an array of economic and health-related challenges, without offering meaningful solutions to those underlying problems.

"Will The Reckoning Over Racist Names Include These Prisons?"

The question in the title of this post is the headline of this interesting Marshall Project piece.  Here is a snippet:

While the killing of George Floyd has galvanized support for tearing down statues, renaming sports teams and otherwise removing markers of a (more) racist past, the renewed push for change hasn’t really touched the nation’s prison system. But some say it should. Across the country, dozens of prisons take their names from racists, Confederates, plantations, segregationists, and owners of slaves. “Symbols of hate encourage hate, so it has been time to remove the celebration of figures whose fame is predicated on the pain and torture of Black people,” said DeRay McKesson, a civil rights activist and podcast host.

Some candidates for new names might be prisons on former plantations. In Arkansas, the Cummins Unit—now home to the state’s death chamber—was once known as the Cummins plantation (though it’s not clear if the namesake owned slaves). In North Carolina, Caledonia Correctional Institution is on the site of Caledonia Plantation, so named as a nostalgic homage to the Roman word for Scotland....

James E. Ferguson — namesake of the notoriously violent Ferguson Unit [in Texas near Huntsville — was a governor in the 1910s who was also an anti-Semite and at one point told the Texas Rangers he would use his pardoning power if any of them were ever charged with murder for their bloody campaigns against Mexicans, according to Monica Muñoz Martinez, historian and author of “The Injustice Never Leaves You.” Ferguson got forced out of office early when he was indicted and then impeached. Afterward, he was replaced by William P. Hobby, a staunch segregationist who opposed labor rights and once defended the beating of an NAACP official visiting the state to discuss anti-lynching legislation. Hobby, too, has a prison named after him....

To many experts, the idea of changing prison names feels a bit like putting lipstick on a pig: No matter what you call it, a prison is still a prison. It still holds people who are not free. They are still disproportionately Black and brown. “If you are talking about the inhumanity, the daily violence these prisons perform, then who these prisons are named after is useful in understanding that,” Martinez said. “But what would it do to name it after somebody inspiring? It’s still a symbol of oppression.”

But to Anthony Graves, a Texas man who spent 12 years on death row after he was wrongfully convicted of capital murder, the racist names are a “slap in the face of the justice system itself.” New names could be a powerful signal of new priorities. “At the end of the day the mentality in these prisons is still, ‘This is my plantation and you are my slaves,’” he said. “To change that we have to start somewhere and maybe if we change the name we can start to change the culture.”

"Visualizing the racial disparities in mass incarceration"

The title of this post is the title of this notable new briefing by Wendy Sawyer at the Prison Policy Initiative.  The subtitle of this piece provides an overview: "Racial inequality is evident in every stage of the criminal justice system - here are the key statistics compiled into a series of charts." I recommend the whole briefing, and here is a taste in text and visuals:

Recent protests calling for radical changes to American policing have brought much-needed attention to the systemic racism within our criminal justice system. This extends beyond policing, of course: Systemic racism is evident at every stage of the system, from policing to prosecutorial decisions, pretrial release processes, sentencing, correctional discipline, and even reentry. The racism inherent in mass incarceration affects children as well as adults, and is often especially punishing for people of color who are also marginalized along other lines, such as gender and class.

Because racial disparity data is often frustratingly hard to locate, we’ve compiled the key data available into a series of charts, arranged into five slideshows focused on policing, juvenile justice, jails and pretrial detention, prisons and sentencing, and reentry. These charts provide a fuller picture of racial inequality in the criminal justice system, and make clear that a broad transformation will be needed to uproot the racial injustice of mass incarceration.

Following the slideshows, we also address five frequently asked questions about criminal justice race/ethnicity data....

Q: Where can I find data about racial disparities in my state’s criminal justice system?

A: Unfortunately, the more specific you want to get with race/ethnicity data, the harder it is to find an answer, especially one that’s up-to-date. State-level race and ethnicity data can be hard to find if you are looking to federal government sources like the Bureau of Justice Statistics (BJS).  BJS does publish state-level race and ethnicity data in its annual Prisoners series (Appendix Table 2 in 2018), but only every 6-7 years in its Jail Inmates series (most recently the 2013 Census of Jails report, Table 7).  The Vera Institute of Justice has attempted to fill this gap with its Incarceration Trends project, by gathering additional data from individual states.  Individual state Departments of Correction sometimes collect and/or publish more up-to-date and specific data; it’s worth checking with your own state’s agencies.....

Q: How are the data collected, and how accurate are the data?

A: Finally, the validity of any data depends on how the data are collected in the first place. And in the case of criminal justice data, race and ethnicity are not always self-reported (which would be ideal). Police officers may report an individual’s race based on their own perception – or not report it at all – and the surveys that report the number of incarcerated people on a given day rely on administrative data, which may not reflect how individuals identify their own race or ethnicity. This is why surveys of incarcerated people themselves are so important, such as the Survey of Inmates in Local Jails and the Survey of Prison Inmates, but those surveys are conducted much less frequently. In fact, it’s been 18 years since the last Survey of Inmates in Local Jails, which we use to analyze pretrial jail populations, and 16 years since the last published data from the Survey of Inmates were collected.

Is consideration of gender a must or a no-no in risk assessment tools?

The question in the title of this post is prompted by this latest new article in the on-going terrific Law.com/Legaltech News series unpacking modern risk assessment tools.  The headline and full subheadline of the piece reveals why it prompts this question: "Constitutional Brawl Looms Over How Risk Assessment Tools Account for Gender: Researchers say that scoring men and women differently is essential to account for risk assessment tools’ inherent gender bias.  But it’s an open question whether these adjustments are violating state or constitutional law."  I recommend the piece in full, and here are excerpts:

While there’s been a lot of focus on how risk assessment tools treat different racial demographics, little attention has been paid to another issue that may be just as problematic: how gender factors into risk scores. Researchers say accounting for the differences in gender ensures that risk assessments are more accurate, but exactly how they do so may run into constitutional challenges.

Legaltech News found one gender-specific risk assessment tool currently implemented in at least two states: the Women’s Risk and Needs Assessment (WRNA), which like the the Ohio Risk Assessment System (ORAS), was created by the University of Cincinnati. Kansas uses the WRNA to assess parolees’ risk in a women’s prison in Topeka, while Montana deploys it for women on probation or parole throughout its Department of Corrections....

The reason WRNA is needed in the first place is because most risk assessment instruments are validated (i.e. created) on a population that is majority male, in large part due to current gender imbalance in the criminal justice system (i.e. more men than women commit crimes and become incarcerated).

Dr. Teresa May, department director of the Community Supervision & Corrections Department in Harris County, Texas, also notes that on a whole, men have higher recidivism risk than women. “What we know is when you look at gender, almost always—and in fact I don’t know of an exception—the average rearrest rate [for women] is always much lower than men.”  Without accounting for these differences, a risk assessment could end up scoring women as higher risk than they actually are....

There’s an ongoing debate over whether using  gender as a risk factor, or assigning different cutoff risk levels to both males and females, violates the 14th Amendment. “Basically the Supreme Court of the U.S. has pursued what’s called an anti-classification approach to the equal protection law, which prohibits explicit use of factors like gender and race in making decisions,” says Christopher Slobogin, professor of law at the Vanderbilt University Law School.  He adds, “It is permissible, constitutionally, to use race or gender if there is a compelling state interest in doing so. But generally speaking, the use of race and gender is unconstitutional to discriminate between groups.”

However, in Slobogin’s own opinion, he does not think the “Constitution is violated simply because a risk assessment arrives at different results for similarly situated men and women.” He argues that a tool that uses gender as a risk factor and one that has different cutoff scores for genders are functionally the same, adding in those adjustments makes the instruments more accurate.

But others see it differently. Sonja Starr, professor of law at the University of Michigan Law School, for example, recently told the Philadelphia Inquirer that “use of gender as a risk factor plainly violates the Constitution.” 

Notable new polling and report on juve sentencing and punishment

I just saw that the folks at Data for Progress, The Justice Collaborative Institute, and Fair and Just Prosecution have produced this notable new report titled "A Majority of Voters Support an End to Extreme Sentencing for Children," on which the CFSY was consulted and offered support. The report discusses findings from two national polls indicating much of the public supports significant reform in juvenile sentencing and punishment. Here is part of its executive summary:

Extreme sentences have contributed to the United States being the number one incarcerator in the world — disparately impacting and devastating communities of color — and juvenile life-without-parole sentences are among the most draconian ongoing practices in our country.  These sentences essentially abandon young people to die in prison, despite the fact that children have great potential for rehabilitation and are deserving of second chances.

While a series of Supreme Court decisions in the past decade has altered the landscape of juvenile life-without-parole sentences, there are still too many men and women looking at spending the rest of their lives in prison for acts they committed as youth.  Juvenile life-without-parole sentences also contribute to the racial disparities in the criminal legal system overall: 80 percent of people serving life sentences for crimes they committed as youth are non-white.  More than 50 percent are Black.

But public discourse is shifting.  Reform that ends juvenile life-without-parole sentences is both popular with the public and simple common sense. Community members across the ideological spectrum understand that young people have the capacity to change, and want the justice system to rehabilitate young people, rather than imprison them for life.  Two recent national polls conducted by Data For Progress found that a majority of voters believe no one who committed a crime as a child should be sentenced to life in prison without the hope or the opportunity for a second chance.  Fewer than a third of voters disagree.

As the public conversation considers the future of policing and the meaning of public safety, criminal justice leaders must use this as an opportunity to think more broadly about the entire criminal justice system and make critical changes, especially changes that are sensible, supported by science, and in furtherance of racial equity.  There is no better place to begin than to give young people a chance at redemption and end juvenile life-without-parole.

Highlighting just one way that, even after the FIRST STEP Act, "Justice Still Eludes Crack Offenders"

Sarah E. Ryan has this notable new Crime Report commentary headlined simply "Why Justice Still Eludes Crack Offenders." I recommend the whole piece, and here are excerpts:

In early 2007, Carl Smith sold 1.69 grams of crack, less than half a teaspoon.  He also sold a teaspoon of powder cocaine.  A New Hampshire federal judge sentenced him to seventeen-and-a-half years imprisonment, the lowest end of the sentencing guidelines recommendation.

Last spring, Smith sought a sentence reduction under the First Step Act.  The district court denied the request because he was convicted under a statutory subsection unaffected by the new law. In essence, he had sold too little crack to go free.  According to an early 2020 analysis by the U.S. Sentencing Commission, the New Hampshire district courts granted just four sentence reductions under the First Step Act.  The district of Rhode Island granted four times more reductions; the district of Connecticut granted five times as many.

Nationally, the average sentence reduction was 71 months.  As a result, many defendants had served their time and could be released from incarceration.  But not Carl Smith. He remained locked up during a pandemic.  He appealed, arguing that the First Step Act covered his conviction.

After analyzing more than 500 First Step Act cases, including 90 relevant circuit court opinions, I know two things: this area of law remains in disarray and the circuit courts have largely dodged the tough issues.  They remain complicit in a decades-old mass incarceration scheme.

The now-familiar history of the crack laws omits one key fact: Congress knew early on that the drug laws were disproportionately affecting Black defendants.... In 1995, the Sentencing Commission told Congress that Black defendants accounted for nearly 90 percent of crack cocaine convictions and that most of their customers were white.  In 1996, the Bureau of Justice Statistics (BJS) reported the changing nature of the federal prison population using bold-faced sub-headers such as: “An increasing percentage of the Nation’s prisoners are black or Hispanic.”  In 1999, the BJS reported that the length of federal prison sentences had increased 40 percent. 

By the mid-1990s, lawmakers understood that dealers like Carl Smith were serving prison terms usually reserved for second-degree murder, or intentional murder demonstrating an extreme indifference to human life.  Yet Congress provided no relief, for decades.

In 2010, Congress raised the quantity necessary for future statutory minimum sentences in the Fair Sentencing Act; the law did not help defendants sentenced at the height of the drug war.  A few thousand people remained incarcerated under the old crack laws.  Their only hope was an historic reform amounting to an admission of Congressional guilt. The First Step Act was that law.  A bipartisan coalition heralded the First Step Act as the end of the draconian drug laws.  The Act gave sitting judges the authority to reopen the old crack cases and impose more appropriate sentences.... The intent of the law was clear, but some judges wavered.

There are two plausible ways to read the resentencing section — section 404 — of the First Step Act: as a small fix to the Fair Sentencing Act of 2010 or a broad mandate to rectify thousands of unjust sentences.  The broad reading is historically, legally and morally correct.  But hundreds of hearings in, the nation’s district courts remain divided on the law’s most basic tenets, like which defendants can be resentenced or what Section 404 empowers judges to do.

Some judges apply Section 404 narrowly.  A subset dismiss cases involving too little or too much crack without a review of the other facts.  Still others review all cases implicating a Fair Sentencing Act statute, but only to perform a new mathematical calculation.  They do not consider a defendant’s post-sentencing conduct or intervening changes in the law, even favorable state and federal supreme court rulings.  Their narrow interpretations of the law unnecessarily depress the length of sentence reductions.

Other judges construe Section 404 broadly.  They view the First Step Act as a gateway to relief.  Some find that they can revisit the sentences of small-time dealers or inmates serving hybrid sentences for interconnected drug and weapons crimes.  Some believe that they may consider a defendant’s good conduct, prison coursework and recent high court rulings.  Broad-view judges find that Congress empowered them to mitigate the damage of the old crack laws.  Their proof? The text of the law, including the word “impose” as a mandate to issue an independent sentence — and the testimony of a dozen or more senators, of both parties, characterizing the First Step Act as redress for the old drug laws.

Recently, the First Circuit adopted a broad view in Carl Smith’s case [opinion here]. That appellate opinion is reason for hope that the circuit courts will raze the remains of the old crack laws.  This summer, the appellate courts should adopt a broad reading of the First Step Act.  That reading should require sitting judges to issue meaningful sentence reductions, including ‘timed served’ in many cases.

And, it should hold sitting judges accountable for the continued incarceration of non-violent drug dealers who have served a decade or more.  Amidst global protests for freedom, liberation and justice for Black citizens, and a raging pandemic, the courts must fully enact the First Step Act as Congress intended.

I am pleased to see this new commentary calling out lower courts for not giving full effect to remedial aspects of the FIRST STEP Act.  But this analysis should not leave out the problematic role of the Justice Department.  I surmise that DOJ has consistently argued for narrow and limiting approaches to the application of Section 404.  Decades ago, DOJ could reasonably contended that its arguments for severe application of federal sentencing laws were consistent with congressional intent.  Now, DOJ arguments for severe application of federal sentencing laws often clearly fly in the face of congressional intent.

New BREATHE Act proposes, among lots and lots of reforms, eliminating federal mandatory minimums and life sentences

As reported in this new AP piece, headlined "Movement for Black Lives seeks sweeping legislative changes," a big new federal criminal justice reform bill includes some big new ideas for sentencing reform. Here are some of the details:

Proposed federal legislation that would radically transform the nation’s criminal justice system through such changes as eliminating agencies like the Drug Enforcement Administration and the use of surveillance technology is set to be unveiled Tuesday by the Movement for Black Lives.

Dubbed the BREATHE Act, the legislation is the culmination of a project led by the policy table of the Movement for Black Lives, a coalition of more than 150 organizations.  It comes at an unprecedented moment of national reckoning around police brutality and systemic racism that has spurred global protests and cries for change after several high-profile killings of Black Americans, including George Floyd....

The legislation was first shared with The Associated Press, and is scheduled to be revealed in a Tuesday press conference that is slated to include an appearance by singer John Legend.  The proposed changes are sweeping and likely to receive robust pushback from lawmakers who perceive the legislation as too radical.

University of Michigan professor and criminal justice expert Heather Ann Thompson acknowledged the uphill battle, but noted that that the legislation is being introduced at a highly opportune time.  “I think those programs that they’re suggesting eliminating only look radical if we really ignore the fact that there has been tremendous pressure to meaningfully reform this criminal justice system,” said Thompson, author of “Blood in the Water.”...

No members of Congress have yet said they plan to introduce the bill, but it has won early support among some of the more progressive lawmakers, including Ayanna Pressley and Rashida Tlaib, who also are due to participate in the news conference.

The bill is broken into four sections, the first of which specifically would divest federal resources from incarceration and policing.  It is largely aimed at federal reforms because Congress can more easily regulate federal institutions and policy, as opposed to state institutions or private prison facilities.  The other sections lay out a detailed plan to achieve an equitable future, calling for sweeping changes that would eliminate federal programs and agencies “used to finance and expand” the U.S. criminal-legal system.

The elimination would target agencies such as the Immigration and Customs Enforcement, which has come under fire in recent years for its aggressive deportation efforts, and lesser-known programs such as Department of Defense 1033, which allows local law enforcement agencies to obtain excess military equipment.  The act, which also seeks to reduce the Department of Defense budget, would institute changes to the policing, pretrial detention, sentencing and prosecution practices...

It would establish the Neighborhood Demilitarization Program, which would collect and destroy all equipment like military-grade armored vehicles and weapons in the hands of local, state, and federal law enforcement agencies by 2022.  Federal law enforcement also would be unable to use facial-recognition technology, which many communities across the nation already have banned, along with drones and forms of electronic surveillance such as ankle-monitoring.

The bill would end life sentences, abolish all mandatory minimum sentencing laws and create a “time bound plan” to close all federal prisons and immigration detention centers....

The bill would direct Congress to establish a Community Public Safety Office that would conduct research on non-punitive, public safety-focused interventions that would be funded through new grants, and programs like a “Free Them All” Matching Grant Program offering a 50% federal match for projected savings when states and communities close detention facilities, local jails, and state or youth prisons.

According to the document, it also would bring about numerous changes for parents and children, such as removing police, school resource officers and other armed security and metal detectors from schools.

I suspect that there is little chance that this entire piece of legislation advances in Congress anytime soon, but there may well be a chance that some pieces of this big bill could get incorporated into other proposals. Even if just a statement of aspirations, this new bill is noteworthy and could prove to be quite significant.

Some summer criminal justice highlights from Marijuana Law, Policy & Reform

It has been far too long since I thought to do a round-up of posts of note from my blogging over at Marijuana Law, Policy & Reform, though that is certainly not because there has been any shortage of interesting COVID-19 or social justice issues arising these days at the intersection of marijuana policy and criminal justice policy.   Rather than try to do a comprehensive review, I will be content to stoplight some favorites with an emphasis on criminal-justice-related stories in this abridged list of posts of note from recent months at MLP&R:

• Is marijuana reform really a "Superweapon Biden Refuses to Use"?

• Reviewing direct democracy marijuana/drug reform initiatives as we celebrate America's birthday

• "Struggling Through the Pandemic: Cannabis Social Equity During Covid-19"

• "Understanding Social Equity"

• Is it growing clearer that marijuana reform is criminal justice reform and racial justice imperative ?

• "Retroactive Legality: Marijuana Convictions and Restorative Justice in an Era of Criminal Justice Reform"

• Timely reminders that marijuana reform is criminal justice reform ... especially when Black Lives Matter

• Noticing how marijuana reform now intersects with religious leaders

• "What’s the best minimum legal age for cannabis?"

• Nevada Gov announces plan to secure pardons for "tens of thousands of Nevadans previously convicted for possession of small amounts of marijuana"

• Notable new research and commentary on marijuana reforms and traffic fatalities

• "Why Marijuana Legalization Funds The Police"

• New research on racial disparities in traffic stops and searches highlights how marijuana reform reduces searches (but not racial disparities)

• Is anyone closely tracking state or national marijuana arrest data during this coronavirus era?  

• "Weeding Out Injustice: Amnesty for Pot Offenders"

• Terrific coverage at CCRC on "Legalizing marijuana and expunging records across the country"

• "States with recreational marijuana laws view the legislation as a success"

• In a post-COVID economy, will job creation and tax revenue from marijuana reform become irresistible?

"Proposition 47’s Impact on Racial Disparity in Criminal Justice Outcomes"

The title of this post is the title of this notable new and timely report from the Public Policy Institute of California.  Here is its "Summary":

While the COVID-19 pandemic has forced changes to correctional systems and law enforcement’s interactions with the community, widespread protests focused on the deaths of African Americans in police custody have intensified concern about racial and ethnic disparities in our criminal justice system.  In recent years, California has implemented a number of significant reforms that were not motivated by racial disparities but might have narrowed them in a number of ways. In this report, we extend our previous arrest work to examine the impact of Proposition 47, which reclassified a number of drug and property offenses from felonies to misdemeanors, on racial disparities in arrest and jail booking rates and in the likelihood of an arrest resulting in a booking.

While significant inequities persist in California and elsewhere, our findings point to a reduction in pretrial detention and a narrowing of racial disparities in key statewide criminal justice outcomes.

• After Prop 47 passed in November 2014, the number of bookings quickly dropped by 10.4 percent.  As a result, California’s use of pretrial detention has declined.
• Prop 47 also led to notable decreases in racial/ethnic disparities in arrests and bookings.  The African American–white arrest rate gap narrowed by about 5.9 percent, while the African American–white booking rate gap shrank by about 8.2 percent.  Prop 47 has not meaningfully changed the disparities in arrest and booking rates between Latinos and whites, which are still only a small fraction of the African American–white gap.
• The narrowing of African American–white disparities has been driven by property and drug offenses.  The gap in arrests for these offenses dropped by about 24 percent and the bookings gap narrowed by almost 33 percent.  Even more striking, African American–white gaps in arrest and booking rates for drug felonies decreased by about 36 percent and 55 percent, respectively.
• The likelihood of an arrest leading to a jail booking declined the most for whites, but this is attributable to the relatively larger share of white arrests for drug offenses covered by Prop 47. When we account for arrest offense differences, the decreases in the likelihood of an arrest being booked are similar across race and ethnicity.

We also looked at the cumulative impact of reforms and prison population reduction measures in California since 2009 on racial disparities in incarceration.  We found that the sizable reduction in the overall incarceration rate produced by these efforts has led to a narrowing of racial disparities in the proportion institutionalized on any given day.  In particular, the African American–white incarceration gap dropped from about 4.5 percentage points to 2.8 percentage points, a decrease of about 36 percent.

In addition to meaningfully reducing racial disparities in key criminal justice outcomes, the reclassification of drug and property offenses led to significant decreases in arrests and bookings, and hence pretrial detention. These decreases have the potential to reduce and/or redirect the use of public resources.  However, more work is needed.  Given evidence that the reforms have led to some increases in property crime, it is important for policymakers and practitioners to identify effective programs and policies that can reduce recidivism and maintain public safety while also continuing to address racial disparities.

Spotlighting our unique times as feds seek to resume execution this month

The New York Times has this article detailing that the first planned executions in nearly two decades are coming at quite a time. The piece is fully headlined "Federal Executions to Resume Amid a Pandemic and Protests: The administration is pressing ahead with the first federal execution in 17 years as demonstrators seek changes to the criminal justice system and lawyers have trouble visiting death-row clients."  Here are excerpts (with one line emphasized for commentary):

Daniel Lewis Lee is scheduled to be executed in less than two weeks, but he has been unable to see his lawyers for three months because of the coronavirus pandemic.

Mr. Lee, sentenced to death for his involvement in the 1996 murder of a married couple and their 8-year-old daughter, has been limited to phone calls, which one of his lawyers, Ruth Friedman, said she feared would jeopardize her client’s confidentiality.  And amid a global pandemic that has put travel on hold, her team has been unable to discuss pressing issues with Mr. Lee, conduct investigations, or interview witnesses in person.  “I can’t do my job right. Nobody can,” Ms. Friedman said from her apartment 600 miles away, in Washington, D.C., where she is working to commute Mr. Lee’s sentence to life in prison.

If she is unsuccessful, Mr. Lee, 47, will be the first federal death row inmate to be executed in 17 years.  Last year, Attorney General William P. Barr announced that the Justice Department would resume executions of federal inmates sentenced to death.  Two weeks ago, Mr. Barr scheduled the first four executions for this summer, all of men convicted of murdering children, and to be carried out at the federal penitentiary in Terre Haute, Ind.  On Monday, the Supreme Court cleared the way for the federal executions to proceed, rejecting arguments against the use of a single drug to carry out the sentence by lethal injection.

As the pandemic worsened, many states, including Texas and Tennessee, postponed scheduled executions of prisoners sentenced under state law. Since the pandemic began, there has been only one execution at a state prison, in Bonne Terre, Mo. The state capital trial in Florida for Nikolas Cruz, the gunman who killed 17 at Marjory Stoneman Douglas High School in 2018, was delayed indefinitely. Courthouses closed or moved to remote operations to accommodate social distancing....

In announcing the schedule for this summer’s federal executions, Mr. Barr said the death penalty was the will of the American people as expressed through Congress and presidents of both parties, and that the four men scheduled to die “have received full and fair proceedings under our Constitution and laws.”

The summer’s scheduled executions mesh with President Trump’s increasing election year efforts to cast himself as a “law and order” leader even as his administration faces mounting criticism for its response to protests over systemic racism in the policing system and a deadly pandemic.

Mr. Lee, who is scheduled to be put to death on July 13, was a white supremacist who has since disavowed his ties to that movement. The Trump campaign has seized on the political ramifications of Mr. Lee’s planned execution, criticizing the president’s presumptive Democratic opponent, former Vice President Joseph R. Biden Jr., for reversing his earlier support for the death penalty “even for white supremacist murderers!”

Though Mr. Biden now opposes capital punishment, he played a central role as a senator in the passage of the 1994 crime bill that expanded the use of the federal death penalty.  Mr. Trump has repeatedly attacked Mr. Biden for his record on criminal justice issues.

Mr. Biden and Mr. Trump are far from the first presidential candidates to spar over the death penalty as a political tactic. In 1992, then-Gov. Bill Clinton denounced President George Bush for his inaction on crime.  To affirm his support for the death penalty, he flew home to Arkansas in the midst of campaigning to personally see to the execution of a man who had been convicted of murdering a police officer.

But today’s candidates are vying for the White House amid nationwide protests over racism in the criminal justice system. Black people make up 42 percent of those on death row, both among federal inmates and over all, compared to 13 percent of the general population.

Though the four inmates scheduled to be executed this summer are white, critics of the death penalty warned that resumption of federal executions would only exacerbate the policy’s discrimination against people of color. “It would be nice if they used those resources to address the widespread problem of police violence against Black people,” said Samuel Spital, director of litigation at the N.A.A.C.P. Legal Defense & Educational Fund. Mr. Spital also questioned why the Justice Department did not use those resources allocated to resume federal executions to protect prisons from the coronavirus.

Imposing the death penalty amid the pandemic holds risks for those carrying out the execution: Doing so may require dozens of individuals, including corrections officers, victims and journalists, to come in close contact. The Bureau of Prisons directed that face masks would be required for all individuals throughout the entire procedure, with violators asked to leave the premises. Social distancing will be practiced “to the extent practical,” but the bureau conceded that limited capacity of the media witness room might preclude their ability to maintain a six-foot distance between observers....

Several family members of Mr. Lee’s victims, his trial's lead prosecutor, and the trial judge have all publicly opposed Mr. Lee’s execution. His co-defendant, described as “the ringleader” by the judge, was given a life sentence without parole.

In a statement, Mr. Barr maintained that the decision to reinstate federal capital punishment was owed “to the victims of these horrific crimes, and to the families left behind.” But Monica Veillette, who lost her aunt and cousin to Mr. Lee’s crimes, does not believe that this execution is for her family. She has asthma, and both her grandmother and parents are older. If they travel to Indiana for the execution from Washington State and Arkansas, each of them could be put at risk of contracting the virus. “If they owe us anything, it’s to keep us safe now by not pushing this execution through while people are still scrambling to access disinfectant spray and proper masks,” she said. “Haven’t enough people died?”

I have emphasized the fact that all of the defendants selected for execution dates by AG Barr are white because I suspect they were chosen to be the first ones to be executed, at least in part, because of their race. If I am right in this suspicion, I think AG Barr acted unconstitutionally. I am not sure if these defendants are pursuing an equal protection claim on this ground, but I sure think they should.

"Rural Spaces, Communities of Color, and the 'Progressive' Prosecutor"

The title of this post is the title of this new paper authored by Maybell Romero available via SSRN.  Here is its abstract:

The concept of the “progressive prosecutor” has captured the attention of many newspapers, media outlets, district attorney candidates, legal scholars, and the public at large.  The success of candidates declaring themselves progressive prosecutors has been tracked with much excitement by those who have sincere interests in criminal justice reform and has been lauded in many reform-minded camps.

These progressive prosecutors, while located throughout the country, seem to have one geographic commonality — they generally hail from large cities or even urban metroplexes: These include Wesley Bell in St. Louis, Rachael Rollins in Boston, Larry Krasner in Philadelphia, and Kim Foxx in Chicago.  In the meantime, disproportionate contact between police and minorities has increased in the rural reaches of the country, with prosecutors seemingly growing less reform minded with rates of incarceration in rural jurisdiction increasing.

This paper joins others in casting suspicion upon the notion of progressive prosecution, questioning whether such an appellation should exist given the current nature of the job in the United States.  It also serves as a warning; that while such prosecutors have seemed to become more common in large cities, that practitioners and scholars should not forget that reforms that occur in large jurisdictions sometimes do not extend to those suffering injustices in small communities.

"Sentencing Disparities and the Dangerous Perpetuation of Racial Bias"

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

This Article addresses the role that racial disparities — specifically sentencing disparities — play in perpetuating the racial bias that increases the daily danger of living as a Black American in the United States.  As documented in the news and by often humorous internet memes, White people have called the police many times to report Black people who were simply living as any other American.  This trend highlights the manner in which the U.S. criminal justice system’s racial inequities feed into biased beliefs about Black criminality.  This Article argues that instead of tackling implicit bias as a means to fight sentencing and other criminal justice bias, we must actively correct and eliminate the disparities head-on.

"A Comparison of the Female and Male Racial Disparities in Imprisonment"

The title of this post is the title of this notable new paper now appearing on SSRN and authored by Junsoo Lee, Paul Pecorino and Anne-Charlotte Souto.  Here is its abstract:

We examine the behavior of the incarceration rate and the racial disparity in imprisonment for black women and compare this to the results for black men over the period 1978-2016.  At the beginning of our sample, the racial disparity is high and of similar magnitude for both groups.  Black women and black men both experience a large run-up in incarceration between 1978-1999, where this run-up can be entirely explained by the increase in overall incarceration in the United States during this period.  Black women and black men both experience a decrease in incarceration between 1999 and 2016, but the decline for women is much steeper.

The decline in incarceration for black women is entirely explained by a decline in the racial disparity, where for men, a decline in the disparity and a decline in the overall male incarceration rate are both important.  At the state level, there are frequent upturns in the racial disparity in the 1980s for both black women and black men, followed by frequent downturns in the 1990s.  The data provide no prima facie evidence that the 1994 Crime Bill exacerbated the racial disparity in imprisonment.  By the end of the sample, the racial disparity for females is 1.8, and the disparity for males is 5.2, where this disparity measures the per capita black imprisonment rate divided by the per capita white imprisonment rate for each group.

Progressive groups demand that Joe Biden "put forward a transformative and comprehensive policing and criminal justice platform"

As reported in this Hill piece, dozens of "liberal groups have signed on to a letter warning presumptive Democratic presidential nominee Joe Biden that he could lose the November election to President Trump if he doesn’t adopt more progressive policing policies." Here is more:

The letter, which is signed by leading national progressive groups, including the Working Families Party, Our Revolution and Black Voters Matter, urges Biden to adopt a 21-page policy proposal released by The Movement for Black Lives to promote reducing incarceration and scaling back police forces across the country.

The groups are also asking Biden to drop his recent proposal to add $300 million in funding for the Community Oriented Policing Services (COPS) program, which would hire and train additional police officers to patrol within the communities where they live.

“We make these demands first and foremost because we seek justice for George Floyd and Breonna Taylor — as well as all the other Black lives lost — and policies like these are what justice looks like in practice,” the letter says. “But we also make them with an eye toward the November election. … You cannot win the election without the enthusiastic support of Black voters, and how you act in this moment of crisis will play a big role in determining how Black voters — and all voters concerned with racial justice — respond to your candidacy. A ‘return to normalcy’ will not suffice,” they wrote.

The progressive groups were scathing in their assessment of Biden’s record on criminal justice issues. “In the course of your political career, you have designed and endorsed policies that have significantly exacerbated these problems,” the letter states. “As a Senator, you not only supported, but in many cases authored and championed laws that expanded mass incarceration, increased police powers, and exacerbated racial disparities in surveillance and sentencing. These laws … are a part of the history that has led us to this moment, and their ongoing fallout has contributed to the outpourings of grief and anger we are seeing today,” they wrote.

The full letter, which is datad June 11, is available at this link. 

A few related posts:

• An initial list of federal sentencing reforms to advance greater equity and justice for congressional consideration (from this month)
• A few interesting accounts of Joe Biden on criminal justice (from this month)
• Might the 2020 campaign bring back "law and order" as a political wedge issue? (from Jan 2020)
• Former Veep Joe Biden releases extended "Plan for Strengthening America’s Commitment to Justice" (from July 2019)

"Whitewashing the Jury Box: How California Perpetuates the Discriminatory Exclusion of Black and Latinx Jurors"

The title of this post is the title of this notable new (and massive) report by faculty and students at the Berkeley Law Death Penalty Clinic.  This release about the report provides background and a summary starting this way: "An eye-opening report from Berkeley Law’s Death Penalty Clinic finds that racial discrimination is a consistent aspect of jury selection in California. The exhaustive study investigates the history, legacy, and ongoing practice of excluding people of color—especially African Americans—from state juries through prosecutors’ peremptory challenges."  Here is part of the report's executive summary:

Racial discrimination is an ever-present feature of jury selection in California.  This report investigates the history, legacy, and continuing practice of excluding people of color, especially African Americans, from California juries through the exercise of peremptory challenges. Unlike challenges for cause, each party in a trial has the right to excuse a specific number of jurors without stating a reason and without the court’s approval.  In California, peremptory challenges are defined by statute.

Historically, the main vice of peremptory challenges was that prosecutors wielded them with impunity to remove African Americans from jury service.  These strikes were part and parcel of the systematic exclusion of Blacks from civil society.  We found that prosecutors continue to exercise peremptory challenges to remove African Americans and Latinx people from California juries for reasons that are explicitly or implicitly related to racial stereotypes....

In his concurring opinion in Batson, Justice Thurgood Marshall warned that Batson’s three-step procedure would fail to end racially discriminatory peremptory strikes. He anticipated that prosecutors would easily be able to produce “race-neutral” reasons at Batson’s second step, and that judges would be ill-equipped to second-guess those reasons.  Further, Justice Marshall doubted Batson’s efficacy because the procedure did nothing to curb strikes motivated by unconscious racism — known more often today as implicit bias.

Justice Marshall was prescient: 34 years after Batson was decided, prosecutors in California still disproportionately exercise peremptory challenges to exclude African Americans and Latinx people from juries.

The Berkeley Law Death Penalty Clinic explored the shortcomings of the Batson procedure.  Our report investigates how the California Supreme Court went from a judiciary that championed the eradication of race-based strikes to a court that resists the United States Supreme Court’s limited efforts to enforce Batson.  We conclude that Batson is a woefully inadequate tool to end racial discrimination in jury selection.

"America’s Criminal Justice System Is Rotten to the Core"

The sharp title of this post is the sharp title of this new commentary authored by Clark Neily at Cato.  Here is how it gets started:

Before you can fairly assess the legitimacy of the ongoing protests or the quality of the government’s response, you must understand the relevant facts.  And the most relevant fact is that America’s criminal justice system is rotten to its core.  Though that certainly does not justify the violence and wanton destruction of property perpetrated by far too many protesters, it does provide useful context for comprehending the intensity of their anger and the fecklessness of the government’s response.  If America is burning, it is fair to say that America’s criminal justice system — which is itself a raging dumpster fire of injustice — lit the fuse.

I feel moved to write these words because it appears from some of the commentary I’ve been reading — including even from libertarian circles — that many people who consider themselves to be generally skeptical of government and supportive of individual rights have no idea just how fundamentally broken our criminal justice system is and how wildly antithetical it has become to our core constitutional values.

Within days or weeks, most protesters will renounce the use of lawless violence as a tool of politics; but the state will not.  That’s the key takeaway and the thing you really need to understand about this moment in time.

As I will explain below, I see three fundamental pathologies in America’s criminal justice system that completely undermine its moral and political legitimacy and render it a menace to the very concept of constitutionally limited government.  Those three pathologies are: (1) unconstitutional overcriminalization; (2) point‐​and‐​convict adjudication; and (3) near‐​zero accountability for police and prosecutors.

An initial list of federal sentencing reforms to advance greater equity and justice for congressional consideration

According to this recent Hill article, headlined "Pelosi: Democrats to unveil sweeping criminal justice proposal Monday," a federal criminal justice bill is in the works that may go beyond police reforms.  Here are the basics:

Democrats on Monday will introduce wide-ranging legislation designed to combat racial inequities in the criminal justice system, Speaker Nancy Pelosi (D-Calif.) announced Thursday.  The much awaited package, currently being crafted by members of the Congressional Black Caucus (CBC), will feature provisions designed to eliminate racial profiling, rein in the excessive use of police force and repeal the so-called qualified immunity doctrine for law enforcers, which protects individual officers from lawsuits over actions they perform while on duty.

"We will not relent until that is secured — that justice is secured," Pelosi told reporters in the Capitol.  Yet the package will go far beyond that, Pelosi suggested.... Aside from the criminal justice elements of the Democrats' legislation, Pelosi said the package would also include provisions designed to raise the status of African Americans outside of the criminal justice system as well. "It is about other injustices, too. It's about health disparities, it's about environmental injustice, it's about economic injustice, it's about educational injustice," Pelosi said. 

This Politico piece suggests the developing bill is primarily focused on police reforms.  But if Congress has an interest, as I think it should, in broader criminal justice reforms to advance greater equity and justice, I have many suggestions.  Let's get started with some basic federal sentencing reforms:

1. Equalize crack and powder cocaine sentencing (finally!).  Based on data showing huge unfair disparities, the US Sentencing Commission in 1995 (a full quarter century ago!) sent to Congress proposed guidelines changes to fix the 100:1 crack/powder cocaine disparity by adopting a 1:1 quantity ratio at the powder cocaine level.  But Congress passed, and President Bill Clinton signed, legislation rejecting the USSC’s proposed guideline changes (see basics here and here), thereby ensuring decades of disproportionately severe crack sentences and extreme racial inequities in cocaine offense punishments.

Barack Obama gave a 2007 campaign speech assailing the crack/powder disparity, and in 2009 the Obama Justice Department advocated for "Congress to completely eliminate the crack/powder disparity."  Sadly, despite strong DOJ advocacy for a 1:1 ratio in April 2009, it still took Congress more than a year to enact any reform to the 100:1 crack/powder cocaine disparity, and then it only could muster a partial reduction in crack sentences rather than the parity advocated by the USSC in 1995 and by DOJ in 2009.  Specifically, the Fair Sentencing Act enshrined a bew 18:1 crack/powder quantity disparity ratio into federal drug sentencing statutes and guidelines, and even this modest reform did not become fully retroactive until eight years later with the FIRST STEP Act.

As the USSC said in 1995 and as DOJ recognized in 2009, crack cocaine and powder cocaine are functionally the same drug save for the fact that Blacks are far more likely to be prosecuted federally for the former.  The crack/powder cocaine sentencing disparity has long been the most tangible and consequential example of structural sentencing racism, and the Minnesota Supreme Court decades ago found a lesser disparity to be unconstitutional under its state constitution.  This ugly stain still impacting thousands of Black federal defendants needs to be wiped out once and for all.

2. Repeal federal mandatory minimums. Even before its important work highlighting racial biases in the application of federal cocaine penalties, the USSC began noting the racial inequities in the application of federal mandatory minimum statutes.  In its 1991 report, the USSC noted early data showing "disparate application of mandatory minimum sentences [which] appears to be related to the race of the defendant, where whites are more likely than non-whites to be sentenced below the applicable mandatory minimum."  In its 2011 report, the USSC again documented with copious data the various ways that the effects of severe mandatory minimum sentencing provisions "fall on Black offenders to a greater degree than on offenders in other racial groups."

One need not rely on USSC data to see clear evidence of racial disparities in the application of federal mandatory minimum.  M. Marit Rehavi and Sonja B. Starr found that federal prosecutors are almost twice as likely to file charges carrying mandatory minimum sentences against Black defendants.  Similarly, Crystal Yang found that "Black offenders are far more likely to be charged with mandatory minimums than similar white offenders, and after Booker, black defendants are significantly more likely to face mandatory minimums that exceed their Guidelines minimum compared to white defendants."

Critically, mandatory minimums have all sorts of flaws, both in theory and in practice, that justify their repeal on a number of bases beyond advancing greater racial equity.  But, as is too often the case throughout criminal justice systems, a bad law for everyone often gets applied in a way that is especially inequitable and unjust for people of color.  All federal mandatory minimums ought to be repealed.

3. Create a federal expungement statute. Having a criminal record severely limits access to employment, education, housing, civic engagement, and public assistance.  As highlighted by a recent US Commission on Civil Rights report on collateral consequences, "People of color are more likely to be arrested, convicted, and sentenced more harshly than are white people, which amplifies the impact of collateral consequences on this population."

An encouraging recent study by Sonja B. Starr and J.J. Prescott involving expungements in Michigan over the course of decades found that expungement recipients had extremely low subsequent crime rates and saw a sharp upturn in wages and employment levels.  Sounds like a win-win, and ever more states are each year expanding and enhancing mechanisms for record relief.  But there is currently no general federal expungement or record sealing statute, and federal courts have no inherent authority to expunge records.  Congress should again follow the wise lead of the states by creating a robust expungement statute ASAP.

Critically, these three suggestions are really just low-hanging fruit for criminal justice reforms in the sentencing space that would obviously and easily advance greater equity and justice for all.  There are plenty of other important structural changes I would also like to see in the name of racial justice ranging from eliminating all felon disenfranchisement to decriminalizing or legalizing marijuana and lots more in between.  Indeed, any kind of wise criminal justice reform is likely to serve as a kind of racial justice reform given the consistently biased operation of our justice systems.  But for now, I will be content to advocate for these three reforms and encourage others to use the comments to indicate what they consider the most urgent forms of reform in this arena.

Another week with lots of federal sentence reductions from judges using § 3582(c)(1)(A) ... dare I wonder about the racial breakdown?

I flagged in this Friday post five grants of sentence reductions under § 3582(c)(1)(A) on same day Bernie Madoff was denied a reduction, and this past week was filled with many, many more judicial grants of sentence reductions using § 3582(c)(1)(A).  Readers may recall, this post from mid May with more than two dozen grants in one week showing up on Westalw, and the first week on June shows comparable activity (though I have included below a few from late May that have only recently appeared on Westlaw):

United States v. Regas, No. 3:91-cr-00057-MMD-NA-1, 2020 WL 2926457 (D Nev. June 3, 2020)

United States v. Gray, No. RDB-16-0364, 2020 WL 2932838 (D Md. June 3, 2020)

United States v. Rich, No. 17-cr-094-LM, 2020 WL 2949365 (D N.H. June 3, 2020)

United States v. McClellan, No. 1:92 CR 268, 2020 WL 2933588 (ND Oh. June 3, 2020)

United States v. Hodges, No. 04 CR 993-3, 2020 WL 2935101 (ND Ill. June 3, 2020)

 

United States v. Millage, No. 3:13-cr-234-SI, 2020 WL 2857165 (D Ore. June 2, 2020)

United States v. Hilow, No. 15-cr-170-JD, 2020 WL 2851086 (D N.H. June 2, 2020)

United States v. O'Neil, No. 3:11-CR-00017, 2020 WL 2892236 (SD Iowa June 2, 2020)

United States v. Williams-Bethea, No. 18-cr-78 (AJN), 2020 WL 2848098 (SDNY June 2, 2020)

United States v. Chapman, No. 09-CR-0741, 2020 WL 2850984 (ND Ill. June 2, 2020)

 

United States v. Prasad, No. 19-71, 2020 WL 2850147 (ED La. June 2, 2020)

Snell v. United States, No. 16-20222-6, 2020 WL 2850038 (ED Mich. June 2, 2020)

United States v. Kelley, No. 16-cr-00038-SI-1, 2020 WL 2850280 (ND Cal. June 2, 2020)

United States v. Anderson, No. 16-CR-824-1 (JMF), 2020 WL 2849483 (SDNY June 2, 2020)

United States v. Ozols, No. 16-CR-692-7 (JMF), 2020 WL 2849893 (SDNY June 2, 2020)

 

United States v. Torres, No. 87-Cr-593 (SHS), 2020 WL 2815003 (SDNY June 2, 2020) (two defendants both with LWOP sentences reduced)

United States v. Dickerson, No. 1:10CR17 HEA, 2020 WL 2841523 (ED Mo. June 1, 2020)

United States v. Smith, No. CR07-3038-LTS, 2020 WL 2844222 (SD Iowa June 1, 2020)

United States v. Kamaka, No. 18-00085 SOM, 2020 WL 2820139 (D Hawaii June 1, 2020)

 

United States v. Van Cleave, No. CR03-247-RSL, 2020 WL 2800769 (WD Wash. May 29, 2020)

United States v. Castillo, No. H-08-146-01, 2020 WL 2820401 (SD Tex. May 29, 2020)

United States v. Baclaan, No. 16-00468 HG-01, 2020 WL 2820199 (D Hawaii May 29, 2020)

United States v. Pena, No. 16-10236-MLW, 2020 WL 2798259 (D Mass. May 29, 2020)

United States v. Bass, No. 1:10-CR-166 (LEK), 2020 WL 2831851 (NDNY May 27, 2020)

As I have mentioned before, late week rulings often do not appear on Westlaw right away, so there likely are additional early June grants that will appear on Westlaw later this week.  And, of course, these Westlaw listings do not represent all sentence reductions being granted by federal courts these days; data in the Marshall Project article flagged here leads me to think Westlaw picks up at most half of all federal sentence reduction grants.

As the title of post suggests, after a week of righteous protests and discussions focused on the importance of racial equity and justice, I could not help but wonder as I assembled this list whether people of color are equally benefiting from judicial authority to reduced sentences using § 3582(c)(1)(A) after the FIRST STEP Act.  According to the most recent US Sentencing Commission data, roughly 34% of federal prisoners are Black, 34% are Latinx, 28% are White, and 4% are "other" races.  For various reasons, I suspect that the population of older federal prisoners, who seem to be those most likely to benefit from COVID-influenced reduction grants, is more Whte than the general population.  Still, because it seems likely that a sizable number of non-White federal prisoners are making viable motions for sentence reductions, I cannot help but wonder if a sizable number of non-White federal prisoners are being granted  reduced sentences using § 3582(c)(1)(A).   

Prior recent related posts since lockdowns:

• Notable recent (pre-COVID) grants of sentence reductions from coast to coast using 3582(c)(1)(A) ... as FAMM urges thousand more filings in response to coronavirus
• Documenting early federal court COVID jurisprudence in response to various release requests from federal defendants and inmates 
• A few (too few) recent COVID-influenced grants of sentence reductions using 3582(c)(1)(A)
• Pleased to see growing number of COVID-influenced grants of sentence reductions using 3582(c)(1)(A)
• A few more COVID-influenced grants of sentence reductions using 3582(c)(1)(A)
• Still more COVID-influenced grants of sentence reductions using 3582(c)(1)(A), with waivers of exhaustion/waiting period 
• Additional COVID-influenced grants of federal sentence reductions using 3582(c)(1)(A) 
• Another round of recent COVID-influenced grants of federal sentence reductions using 3582(c)(1)(A)
• A dozen new grants of federal sentence reductions using § 3582(c)(1)(A), including another based on stacking/disparity/trial penalty concerns
• Still more of the ever-growing number of COVID-influenced federal sentence reductions using 3582(c)(1)(A)
• Another robust week for COVID-influenced federal sentence reductions using 3582(c)(1)(A)
• With lots more new grants, time for another timely review of the latest COVID-influenced federal sentence reductions using § 3582(c)(1)(A) 
• A big list for a whole week's worth of COVID-influenced federal sentence reductions using § 3582(c)(1)(A) 
• Despite a short work week, still another long list of new COVID-influenced federal sentence reductions using § 3582(c)(1)(A) 
• Bernie Madoff denied federal sentence reduction, but many others receive relief under § 3582(c)(1)(A) on same day

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

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

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

The dissent by Justice Newby starts this way:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

"Not Letting Felons Vote Damages Democracy for All Citizens"

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

"The Paradox of Recidivism"

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

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

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

"Deep Disadvantage, Blameworthiness, and Sentencing"

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

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

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

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

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

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

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

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

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

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

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

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

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

Key findings include:

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

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

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

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

"Women in Prison: Seeking Justice Behind Bars"

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

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

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

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

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

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

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

"From Decarceration to E-Carceration"

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

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

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

"Remorse and Judging"

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

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

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

"Fees, fines and ability to pay"

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

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

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

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

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

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

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

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

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

US Sentencing Commission publishes latest FIRST STEP/FSA resentencing data

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

"'Ban the Box' Policies and Criminal Recidivism"

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

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

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

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

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

PPI releases "Youth Confinement: The Whole Pie 2019"

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

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

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

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

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

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

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

"Algorithmic Risk Assessment in the Hands of Humans"

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

"Race and Class: A Randomized Experiment with Prosecutors"

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

New Jersey commission releases big report recommending numerous big sentencing reforms

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

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

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

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

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

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

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

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

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

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

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

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

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

5. Create a new mitigating sentencing factor for youth.

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

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

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

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

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

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

Research Summary

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

Policy Implications

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

"Taking a second look at life imprisonment"

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

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

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

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

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

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

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

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

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