Friday, January 24, 2020

"What should criminal justice reform look like in 2020?"

The question in the title of this post is the headline of this recent Hill commentary authored by Timothy Head, who is the executive director of the Faith & Freedom Coalition. Here are excerpts:

Since 2007, more than 30 states have passed reforms to reduce incarceration, recidivism rates, and costs; and these reforms have seen significant results. For example, Texas has saved over $2 billion, reduced recidivism by 25 percent, and seen its lowest crime levels since 1968.  But as more states and federal legislators begin to implement reforms, what should be the top priorities?

Narrow the net of incarceration

Incarceration isn’t the right answer for every crime. Offenders whose crimes are motivated by a mental health or substance abuse issue, for example, could be better served through other rehabilitation efforts.  We need to focus on improving early detection of behavioral health needs, expanding access to mental health resources and substance abuse recovery programs, and not making incarceration the default sentence for everyone.

Create effective rehabilitation programs

A 2019 report found that 58 percent of prison inmates don't complete an education program while in prison, even though employment rates for former inmates increase by an average of 10 percent, on average, after they participate in a college program.  By increasing education opportunities for incarcerated individuals, we give them skills and post-incarceration opportunities.

Because incarceration and recidivism are so closely tied to poverty, educational opportunities are one of the best ways to keep former inmates out of prison.  Other proven rehabilitation programs include Bible-based trauma healing programs, prison work programs, and mental health and substance abuse counseling....

Ensure prompt and fair outcomes for both the accused and the victim.

Nearly half of the over 16,000 people in Michigan’s jails are pretrial detainees awaiting trial.  Effective reforms increase pretrial releases and reserve prison and jail resources for those who represent a flight risk or public safety threat.  Additionally, resources like counseling, legal representation, and compensation for victims of crimes sorely lack in states throughout the country.

January 24, 2020 in Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (0)

Tuesday, January 21, 2020

"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.

January 21, 2020 in Race, Class, and Gender, Recommended reading, Television | Permalink | Comments (2)

Thursday, January 16, 2020

Rounding up some notable recent criminal justice discussions

A busy week has meant less than the usual time for me to keep up with criminal justice news and commentary, and so I am here going to round up a number of pieces I quickly flagged that I am looking forward to finding time to read and reflect upon:

January 16, 2020 in Recommended reading | Permalink | Comments (0)

"The Defender General"

The title of this post is the title of this notable new article authored by Daniel Epps and William Ortman now available via SSRN. Here is its abstract:

The United States needs a Defender General — a public official charged with representing the collective interests of criminal defendants before the Supreme Court of the United States.  The Supreme Court is effectively our nation’s chief regulator of criminal justice.  But in the battle to influence the Court’s rulemaking, government interests have substantial structural advantages.  As compared to counsel for defendants, government lawyers — and particularly those from the U.S. Solicitor General’s office — tend to be more experienced advocates who have more credibility with the Court.  Most importantly, government lawyers can act strategically to play for bigger long-term victories, while defense lawyers must zealously advocate for the interests of their clients — even when they conflict with the interests of criminal defendants as a whole.  The prosecution’s advantages likely distort the law on the margins.

If designed carefully, staffed with the right personnel, and given time to develop institutional credibility, a new Office of the Defender General could level the playing field, making the Court a more effective regulator of criminal justice.  In some cases — where the interests of a particular defendant and those of defendants as a class align — the Defender General would appear as counsel for a defendant.  In cases where the defendant’s interests diverge from the collective interests of defendants, the Defender General might urge the Court not to grant certiorari, or it might even argue against the defendant’s position on the merits.  In all cases, the Defender General would take the broad view, strategically seeking to move the doctrine in defendant-friendly directions and counteracting the government’s structural advantages.

I have lots of (mostly positive) thoughts about the general idea of a Defender General. But I want to find time to read this article before I start opining on the general topic. But that should not stop others!

January 16, 2020 in Recommended reading, Who Sentences | Permalink | Comments (1)

Monday, January 06, 2020

"Killer High: A History of War in Six Drugs"

The title of this post is the title of this interesting looking new book authored by Peter Andreas.  Here is the book's description from the publisher's website: 

There is growing alarm over how drugs empower terrorists, insurgents, militias, and gangs.  But by looking back not just years and decades but centuries, Peter Andreas reveals that the drugs-conflict nexus is actually an old story, and that powerful states have been its biggest beneficiaries.

In his path-breaking Killer High, Andreas shows how six psychoactive drugs-ranging from old to relatively new, mild to potent, licit to illicit, natural to synthetic-have proven to be particularly important war ingredients.  This sweeping history tells the story of war from antiquity to the modern age through the lens of alcohol, tobacco, caffeine, opium, amphetamines, and cocaine.  Beer and wine drenched ancient and medieval battlefields, and the distilling revolution lubricated the conquest and ethnic cleansing of the New World.  Tobacco became globalized through soldiering, with soldiers hooked on smoking and governments hooked on taxing it.  Caffeine and opium fueled imperial expansion and warfare.  The commercialization of amphetamines in the twentieth century energized soldiers to fight harder, longer, and faster, while cocaine stimulated an increasingly militarized drug war that produced casualty numbers surpassing most civil wars.

As Andreas demonstrates, armed conflict has become progressively more drugged with the introduction, mass production, and global spread of mind-altering substances.  As a result, we cannot understand the history of war without including drugs, and we similarly cannot understand the history of drugs without including war.  From ancient brews and battles to meth and modern warfare, drugs and war have grown up together and become addicted to each other.

January 6, 2020 in Drug Offense Sentencing, Recommended reading | Permalink | Comments (1)

Sunday, January 05, 2020

Notable reform perspectives via Brennan Center

Over at the Brennan Center for Justice are these two notable new criminal justice reform pieces:

January 5, 2020 in Mandatory minimum sentencing statutes, Recommended reading | Permalink | Comments (0)

Tuesday, December 31, 2019

Looking back on state criminal justice reform and significant reporting of 2019

I fear I may not find time to do a full "2019 blog in review" post in the coming days, though I hope to soon do a post noting some highlights from this past year as I imagine what 2020 might bring in the sentencing universe.   I certainly can find time here to spotlight some other notable "year in review" efforts.  Specifically, a must-read for anyone focused on state-level reforms in this Appeal piece by Daniel Nichanian headlined "From marijuana to the Death Penalty, States Led the Way in 2019: A retrospective on the year that was on criminal justice reform. Seven maps. 16 issues. 50 states."  Here is how this great lengthy piece gets started:

State legislatures this year abolished the death penalty, legalized or decriminalized pot, expanded voting rights for people with felony convictions, restricted solitary confinement, and made it harder to prosecute minors as adults, among other initiatives.

But criminal justice reform remains an uneven patchwork. States that make bold moves on one issue can be harshly punitive on others.  And while some set new milestones, elsewhere debates were meager — and in a few states driven by proposals to make laws tougher.

The Political Report tracked state-level reforms throughout 2019. Today I review the year that was — by theme and with seven maps. And yes, each state shows up.

In addition, I noticed that two notable media outlets that do a lot of great original criminal justice reporting have assembled their own best-of reviews of 2019:

December 31, 2019 in Recommended reading, Who Sentences | Permalink | Comments (0)

Monday, December 30, 2019

Seeing the human stories behind the reform numbers one year after passage of the FIRST STEP Act

In this post a few days ago, I noted some notable metrics as we hit the one-year anniversary of the FIRST STEP Act becoming law.  Though numbers provide an important perspective on what the FIRST STEP Act has (and has not) achieved, the human stories behind these numbers are surely what is most significant and poignant.  To that end, I was pleased to see that the folks at #cut50 have assembled a set of materials here highlighting "the human impact of the FIRST STEP Act." 

Included in the #cut50 materials is this notable report titled "#HomeForTheHolidays: A Celebration of Freedom Made Possible by the FIRST STEP Act."  I recommend the report in full because it tells the individual human stories, with pictures, of just a few of the "thousands of people have been freed from federal prisons, reunited with their families, and are contributing back to their communities."  

Another way to get some sense of just some of the individual FIRST STEP Act stories is through a review of some notable posts from my FIRST STEP Act and its implementation archive.  After a full year, of course, there are far too many stories to review effectively in this space.  Nevertheless, here is a round-up of particular posts from 2019 that report on a few especially interesting individuals stories resulting from the passage of the FIRST STEP Act:

December 30, 2019 in FIRST STEP Act and its implementation, Prisons and prisoners, Recommended reading | Permalink | Comments (0)

Tuesday, December 24, 2019

"An Intellectual History of Mass Incarceration"

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

There is much criticism of America’s sprawling criminal system, but still insufficient understanding of how it has come to inflict its burdens on so many while seemingly accomplishing so little.  This Article asks, as Americans built the carceral state, what were we thinking?  The Article examines the ideas about criminal law that informed legal scholarship, legal pedagogy, and professional discourse during the expansion of criminal legal institutions in the second half of the twentieth century.  In each of these contexts, criminal law was and still is thought to be fundamentally and categorically different from other forms of law in several respects.  For example, criminal law is supposedly unique in its subject matter, uniquely determinate, and uniquely necessary to a society’s wellbeing.  This Article shows how this set of ideas, which I call criminal law exceptionalism, has helped make mass incarceration possible and may now impede efforts to reduce the scope of criminal law.  The aim here is not to denounce all claims that criminal law is distinct from other forms of law, but rather to scrutinize specific claims of exceptionalism in the hopes of better understanding criminal law and its discontents.

December 24, 2019 in Purposes of Punishment and Sentencing, Recommended reading, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Saturday, December 14, 2019

"Solitary Confinement in the Young Republic"

The title of this post is the title of this new article authored by David M. Shapiro just published in the December 2019 issue of the Harvard Law Review.  Here is its abstract:

America’s first system for punishing criminals with solitary confinement began at the Walnut Street Jail, an institution that stood right behind Independence Hall in Philadelphia. Historical and archival evidence from that facility demonstrates that the unchecked use of solitary confinement in today’s correctional facilities contravenes norms that prevailed in the Constitution’s founding era.  In the 1790s, a robust array of checks and balances cabined the discretion of corrections officials to isolate prisoners.  Judges, legislatures, and high public officials regulated human isolation at the jail, leaving prison administrators relatively little power over solitary confinement.  Most importantly, long periods of seclusion could be imposed only by courts acting pursuant to criminal sentencing statutes.  Jail officials had the power to impose solitary confinement for disciplinary violations, but only for a matter of days or weeks.  Today, however, deference to prison officials has swallowed these constraints.  In the present regime, some prisoners remain isolated for years and decades based on decisions by prison officials that courts hesitate to second-guess.  The historical record casts doubt upon any originalist argument that the founding generation would have embraced the contemporary regime of judicial deference in matters of human isolation.

December 14, 2019 in Prisons and prisoners, Recommended reading | Permalink | Comments (0)

Thursday, December 12, 2019

Prison Policy Initiative releases "Winnable criminal justice reforms" providing a "briefing on promising state reform issues for 2020"

The folks at Prison Policy Initiative have released this new eight-page report setting forth "24 high-impact policy ideas for state legislators looking to reform their criminal justice systems."  This PPI webpage provides this overview of what you can find in the full report:

State legislatures can determine the future of mass incarceration. That’s why we just published — as we do every December — a report on 20+ winnable criminal justice reforms that state legislators can take on.

We publish this report as a PDF with links to more information and model bills, and we’ll soon send it to state legislators across the country. This year, our list of reforms ripe for legislative victory includes:

  • Eliminating probation fees and regulating privatized probation services
  • Banning Departments of Corrections taking kickbacks from prison retailers
  • Decreasing state incarceration rates by reducing jail populations
  • Repealing ineffective and harmful “sentencing enhancement” zones
  • Offering medication-assisted opioid treatment to reduce deaths in prison
  • Protecting in-person visits and letters from home in local jails
  • Ending automatic driver’s license suspensions for nonpayment of fines and fees, and for drug offenses unrelated to driving
  • Capping maximum probation terms
  • Reducing or eliminating jail time for technical violations
  • Reducing barriers to housing for formerly incarcerated people

Our full report on winnable criminal justice reforms includes more ideas for reducing state prison populations, eliminating burdensome costs for incarcerated people, supporting people leaving prison, and promoting public health and community safety.

December 12, 2019 in Recommended reading, Who Sentences | Permalink | Comments (0)

Monday, December 09, 2019

Lots worth reading at Law360 "Access to Justice" section

I am not quite sure when I started subscribing to Law360's  "Access to Justice" section, but I am quite sure that a lot of recent content in the section should be of great interest to sentencing fans.  Here are just some of the recent headlines and stories that caught my eye in no particular order:

"‘Scot-Free’: What Happens When Prosecutors Behave Badly"

"Time To Rethink License Suspensions Without Due Notice"

"Changing The Way We Dialogue About Justice Reform"

"As Parole Drives Incarceration, Can NY’s Bar Spur Reforms?"

"Appearances Matter If Jurists Want To Talk Justice Reform"

"Book Review: Who's To Blame For The Broken Legal System?"

December 9, 2019 in Procedure and Proof at Sentencing, Recommended reading, Who Sentences | Permalink | Comments (0)

Sunday, December 01, 2019

Recommending "Good Law | Bad Law" and other podcasts

Though I do not regularly listen to podcasts, I am always eager to use this platform to promote good law-related podcasts for those who do.  Today I heard from a reader who suggested checking out "Good Law | Bad Law" podcasts.  Here was part of the pitch I received:

Good Law Bad Law ... is now one of the leading law-related podcasts in the country. This week's guest was Temple Law Professor and Trial Ad expert Jules Epstein discussing the case of yet another Philadelphia man released from a long-time life prison sentence after exoneration and the broader issue of the potential pitfalls of eyewitness testimony.  In other recent episodes, this podcast has tackled lessons from Watergate with former Assistant Special Prosecutor Henry Hecht (now with Berkeley Law); the Exxon climate change trial in New York, with Michael Gerrard (of Columbia Law); a discussion about the legacy of the Nazi past with Mary Fulbrook, a leading German historian at the University College of London; and the insanity defense, with one of the foremost mental health experts, Penn Law’s Stephen Morse.

In addition to being grateful for this podcast pitch, I would welcome reader input (via comments or email) on other podcast recommendations.  For criminal justice reform fans, essential listening must include the Decarceration Nation Podcast, which describes itself as "a podcast about radically re-imagining America’s criminal justice system ... created by Joshua B. Hoe to help bring attention to the need for criminal justice reform."   Also, this Ohio criminal law professor felt compelled to listen to Serial season 3 (focused on criminal justice administration in Cleveland) and the Over My Dead Body podcast (concerning Dan Markel's murder).

But I know there is so much more out there, and I welcome hearing from others about all the other great content that folks enjoy in this space.

December 1, 2019 in On blogging, Recommended reading | Permalink | Comments (1)

Thursday, November 21, 2019

"The Steep Costs of Criminal Justice Fees and Fines: A Fiscal Analysis of Three States and Ten Counties"

The title of this post is the title of this big new notable report published by the Brennan Center for Justice and "produced with research assistance from the Texas Public Policy Foundation and Right on Crime." Here is the first part of the 68-page report's executive summary:

The past decade has seen a troubling and well-documented increase in fees and fines imposed on defendants by criminal courts. Today, many states and localities rely on these fees and fines to fund their court systems or even basic government operations.

A wealth of evidence has already shown that this system works against the goal of rehabilitation and creates a major barrier to people reentering society after a conviction.  They are often unable to pay hundreds or thousands of dollars in accumulated court debt. When debt leads to incarceration or license suspension, it becomes even harder to find a job or housing or to pay child support. There’s also little evidence that imposing onerous fees and fines improves public safety.

Now, this first-of-its-kind analysis shows that in addition to thwarting rehabilitation and failing to improve public safety, criminal-court fees and fines also fail at efficiently raising revenue. The high costs of collection and enforcement are excluded from most assessments, meaning that actual revenues from fees and fines are far lower than what legislators expect. And because fees and fines are typically imposed without regard to a defendant’s ability to pay, jurisdictions have billions of dollars in unpaid court debt on the books that they are unlikely to ever collect. This debt hangs over the heads of defendants and grows every year.

This study examines 10 counties across Texas, Florida, and New Mexico, as well as statewide data for those three states.  The counties vary in their geographic, economic, political, and ethnic profiles, as well as in their practices for collecting and enforcing fees and fines.

November 21, 2019 in Collateral consequences, Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Recommended reading | Permalink | Comments (0)

Tuesday, November 19, 2019

So much worthy of comment ... so let's round up some commentary

These are busy times in the criminal justice arena and elsewhere, and I never have enough time to keep up with, let alone blog about, all the notable news and commentary that sentencing fans might find interesting.  So, looking to cover a lot of ground quickly, here is a round-up of (mostly commentary) pieces that seem worth checking out.

From The Atlantic, "The Repurposing of the American Jail: Jails and prisons are becoming substance-abuse treatment facilities — even for those who haven’t been accused of a crime"

From The Appeal, "Ayanna Pressley Hopes The U.S. Can Reduce Its Prison Population By Over 80 Percent"

From The Hill, "Prison to proprietorship: The path to real second chances"

From the New York Times, "A Sad Last Gasp Against Criminal Justice Reform: Prosecutors and police should honor the will of the voters and implement long-overdue changes."

From Slate, "The Punishment Bureaucracy Has Nothing to Do With Justice"

From Vox, "The battle for voting rights in the age of mass incarceration: Ex-prisoners are getting their voting rights back. But the backlash has already started."

From the Washington Post, "Algorithms were supposed to make Virginia judges fairer. What happened was far more complicated."

November 19, 2019 in Recommended reading | Permalink | Comments (0)

Wednesday, November 13, 2019

"Defending Progressive Prosecution"

The title of this post is the title of this new book review by Jeffrey Bellin now available via SSRN.  Here is its abstract:

“Progressive prosecutors” are taking over District Attorney’s Offices in cities across the nation, with a mandate to reform the criminal justice system from the inside.  Emily Bazelon’s new book, Charged: The New Movement to Transform American Prosecution and End Mass Incarceration, chronicles this potentially transformative moment in American criminal justice.

This Book Review Essay highlights the importance of Charged to modern criminal justice debates, and leverages its concrete framing of the issues to offer a generally applicable theory of prosecutor-driven criminal justice reform.  The theory seeks to reconcile reformers’ newfound embrace of prosecutorial discretion with long-standing worries, both inside and outside the academy, about the dangerous accumulation of prosecutorial power.  It also offers the potential to broaden the movement’s appeal beyond progressive jurisdictions.

November 13, 2019 in Procedure and Proof at Sentencing, Recommended reading, Who Sentences | Permalink | Comments (0)

Friday, November 08, 2019

Latest Harvard Law Review SCOTUS issue gives criminal justice its due

As all law geeks know, the November issue of the Harvard Law Review is always devoted to the Supreme Court's prior Term work.  And as all long-time readers know, I have often been disappointed when the November SCOTUS issue does not give considerable attention to the Court's considerable criminal justice work. 

But, providing another exciting sign of the criminal justice times, the latest HLR issue, which is now available online here, gives criminal justice reform its due.  Specifically, the Foreword authored by Dorothy Roberts is titled "Abolition Constitutionalism" and it aspires to provide a "sustained analysis of the relationship between the prison abolition movement and the U.S. Constitution."  And Rachel Barkow has in this issue this lengthy commentary titled "Categorical Mistakes: The Flawed Framework of the Armed Career Criminal Act and Mandatory Minimum Sentencing."

In addition, a handful of OT 2018 SCOTUS criminal cases got case comments in this issue:

I know what extra reading I am looking forward to doing over a holiday weekend!

November 8, 2019 in Mandatory minimum sentencing statutes, Prisons and prisoners, Recommended reading | Permalink | Comments (1)

Monday, October 21, 2019

Ohio State Journal of Criminal Law seeking commentary submissions

I am honored to serve as one of the faculty editor for the Ohio State Journal of Criminal Law, and in that role I recently learned that OSJCL still has room for commentary submissions for its Spring 2020 issue.  As some readers may know, OSJCL publishes twice a year, and these issues primarily consist of a symposium of solicited articles on a current criminal law topic and stand-alone commentaries submitted throughout the year. 

For the commentary segment of the journal, OSJCL is often eager to publish pieces with an unusual perspective or even an eccentric aspect to them.  Commentaries from recent issues have included discussions of the Netflix show Daredevil exploring the legality of vigilante justice, reflections on the Serial podcast, and analysis of encounters between black Americans and police officers through the prism of Thomas Hobbes’ LeviathanOSJCL also publishes more traditional types of papers in its Commentary section, with recent pieces ranging from empirical work on how prosecutorial decisions vary in different jurisdictions to standard doctrinal pieces on how to punish attempts and analyses of recent Supreme Court decisions.

Commentaries are meant to be relatively short (no more than 10,000 words) and relatively lightly footnoted.  If you have a commentary-type piece that you would like to submit for the Spring 2020 issue, please submit it to crimlaw@osu.edu within the next few weeks.  

October 21, 2019 in Recommended reading | Permalink | Comments (0)

Friday, October 18, 2019

"The Trouble with Reentry: Five Takeaways from Working with People Returning to Chicago from Prison"

The title of this post is the title of this notable new report from the John Howard Association. Here is part of its executive summary: nbsp;

With political backing and public will, a new reentry system can and should be built.  A foundation is currently being laid through public-private partnerships that recognize the importance of meeting the basic needs of people leaving the justice system and going back to their communities. But for such a system to succeed, it ultimately must be grounded in the principle that“[t]he dignity of the individual will flourish when the decisions concerning his life are in his own hands, when he has the assurance that his income is stable and certain, and when he knows that he has the means to seek self-improvement.”

Over the last several months, John Howard Association of Illinois (JHA) staff had occasion to learn from several young adults (all black men in their early twenties) as they attempted to navigate the world of reentry services, mandatory supervised release and reintegration back into impoverished communities in Chicago after being imprisoned for several years in both Illinois Department of Juvenile Justice (IDJJ) youth centers and Illinois Department of Corrections (IDOC) adult prisons.  Our final impression from this experience is profound skepticism at the ability of the existing reentry framework to stem the continuous cycle of people exiting and returning to jail and prison. Both conceptually and in execution, reentry as a societal project — at least in its current incarnation — does not begin to adequately address even the most basic human needs (shelter, clothing, transportation, food, medication) of returning citizens.  That being said, we were moved and inspired by the patience, dedication and sacrifices of many on-the-ground direct service reentry workers and organizations that we encountered, who tirelessly work to triage and assist an onslaught of returning citizens with desperate needs— despite inadequate resources, unreliable funding streams, and myriad bureaucratic obstacles.

Following herein are some of JHA’s real-world observations made in the process of accompanying and, at times, endeavoring to assist people as they attempted to access critical reentry supports, resources and services following their release from prison.  These five key takeaways are based on our on the ground experience navigating reentry programs and opportunities with these young men shortly after their release from prison.  This list is in no way comprehensive or exhaustive.  Rather, it highlights just some of the more immediate, pressing needs and problems that the young men whom JHA met as they left prison experienced during their first few months after leaving prison.  There were also some bright, hopeful encounters along the way. In particular we met some extraordinary, persevering, compassionate, tireless reentry workers who are dedicated to assisting people returning from prison.  Our dive into the reentry process on the whole, however, illuminated some large gaps that exist for returning citizens trying to succeed.

October 18, 2019 in Purposes of Punishment and Sentencing, Recommended reading, Reentry and community supervision | Permalink | Comments (1)

Friday, October 11, 2019

Terrific ABA review of SCOTUS criminal work during Oct 2018 Term

Download (6)LawProf Rory Little regularly prepares for the American Bar Association an end-of-Term review of the Supreme Court's work in criminal cases.  A decade worth of this terrific work is available at this link, and just recently added there is this 48-page accounting of the October 2018 Term.  The whole document is terrific, and here is the start of the first section under the heading "Brief Overview of the 2018-19 Term, Criminal Cases" (emphasis in original):  

As far as criminal cases go, there are two “big stories” from the past Term, one descriptive and the other substantive impact of the Term’s “big” cases. Let’s do the descriptive first.

This was the first Term in which two new Justices appointed by President Trump served together. Justice Gorsuch was appointed at the end of the Term before last, so this was his second full Term. Justice Kavanaugh served almost all of this Term; his confirmation was slightly delayed (as you may recall), so he actually first took the bench on Monday, October 8, the second week of the Term.  Still, the big question was, how would these two new Justices affect the Court?

What we now know is that, contrary to the general picture of the prior Term, the Justices divided in a remarkably large number of different variations.  Overall, there were 67 argued cases, plus 5 summary reversals, for a total of 72. I count 26 of the 72 as “criminal law and related,” or 24 of the 67 argued.  Of the 72, there were 20 decisions decided by a 5-4 vote -- and of these, there were 10 different variations of which Justices made up the five. This is an unusually high number. It seems that the current Justices are still trying to find their way, and (happily) are not cemented to always-predictable results.  I count 10 of the 5-4 decisions as criminal; in five of those the “liberal” bloc prevailed. If we think of the four liberal Justices as Ginsburg, Breyer, Sotomayor and Kagan, the question becomes: who was the fifth Justice? Interestingly, it was Gorsuch in three, Roberts in one, and Alito in one. (Kavanaugh was not the fifth vote in any 5-4 liberal criminal win, but he did write the strong majority opinion in Flowers, see below, a pro-defendant Batson death penalty decision.)

Justice Gorsuch’s pro-defense votes in at least four cases (Davis and Haymond, plus dissents in Gamble and Mitchell) indicate that he continues the “libertarian” streak that his predecessor Justice Scalia sometimes exhibited.  At the same time, Justice Gorsuch’s majority opinion in Bucklew, a death penalty case in which he boldly wrote that “last-minute stays should be the extreme exception,” demonstrates a strong pro-government position on capital punishment. Interestingly, despite their common appointment source, Justices Gorsuch and Kavanaugh did not always agree (they had only a 56-70% overall agreement rate), and were on opposite sides in six or more criminal cases. Is there a lesson here? Wait and see, is my advice.

Substantively, because 23 of the 67 argued cases (or 25 of the 72 total) were criminal lawor-related decisions, we can see that over a third of the docket is “criminal.” This is about normal for the Supreme Court’s docket. With 25 criminal-and-related decisions, of which I’d say 17 were “pure criminal,” there is a lot to digest (as the following 38 pages demonstrate).  Only a few highlights can be summarized here.

What was the “biggest” criminal law decision of the Term?  Of course it depends on your interests, and perhaps your ideology.  Certainly the Gamble case, affirming the “separate sovereigns” exception to the Sixth Amendment’s Double Jeopardy Clause despite calls for overruling it, was big news.  Meanwhile, the Timbs decision makes it clear that the Eighth Amendment’s “no Excessive Fines” Clause applies fully to the States. (In a similar vein, next Term the Court will decide whether the Sixth Amendment’s unanimous jury requirement is similarly “incorporated,” in Ramos v. Louisiana). Meanwhile, the Fourth Amendment decision in Mitchell suggests that a majority is ready to broaden the concept of “exigent circumstances” as a categorical exception.  And finally, the Haymond decision extends Apprendi to the revocation of supervised release, which Justice Alito in dissent calls “revolutionary;” and the decision in Rehaif demonstrates a strong commitment to requiring mens rea for every factual element of an offense (in that case, knowledge that one belongs to a class of persons prohibited from possessing firearms).

October 11, 2019 in Recommended reading, Religion, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Saturday, September 21, 2019

Some weekend reads on all sorts of topics from all sorts of places

At the end of the a busy week, I often have collected a number of links to articles and commentaries of interest that I realize I will not have time to blog fully. Ergo, a wrap-up post like this one allows me to cover all sorts of topics from all sorts of places:

"Alabama Sex Offender Registry Is Cruel and Unusual Punishment for Teenagers, Lawsuit Argues"

"Back to School: A Common-Sense Strategy to Lower Recidivism"

"Executing the intellectually disabled serves little purpose"

"Guilty until proven innocent: The cash grab of civil asset forfeiture"

"Non-violent drug offenders need help, not felony records"

"Victim advocates concerned after Nevada top court gives jury trial right to accused domestic batterers"

"What Democratic candidates need to admit about criminal justice reform"

September 21, 2019 in Recommended reading | Permalink | Comments (0)

Saturday, August 24, 2019

Notable Washington Supreme Court discussion of recidivist LWOP sentences while rejecting challenge to use of young adult "first strikes"

Last fall, the Washington Supreme Court showed its willingness to strike down various extreme sentences when it concluded the state's death penalty administration was so arbitrary as to be violative of the state constitution, and soon thereafter in a distinct ruling decided to categorically bar the imposition of a juvenile life without parole based again on the state constitution.  But earlier this month, this Court refused to extend this constitutional jurisprudence to LWOP sentences imposed under its recidivist statutes in Washington v. Moretti, No. 95263-9 (Wash. Aug 15, 2019) (available here).  Here is how the opinion for the unanimous Court gets started and concludes:

Under the Persistent Offender Accountability Act(POAA), the third time a person is convicted of a "most serious offense," they mustbe sentenced to life in prison without the possibility of parole.  RCW9.94A.030(38)(a), .570.  This statute is colloquially known as the "three strikes andyou're out" law.  State v. Thome, 129 Wn.2d 736, 746, 921 P.2d 514 (1996). These three cases each ask whether it is constitutional to apply the POAA to people whowere in their 30s or 40s when they committed their third strike but were young adultswhen they committed their first strike.

We hold that it is constitutional. Article I, section 14 of the Washington Constitution does not require a categorical bar on sentences of life in prison withoutthe possibility of parole for fully developed adult offenders who committed one oftheir prior strikes as young adults. We also hold that the sentences in these cases arenot grossly disproportionate to the crimes....

Petitioners argued that sentencing adult offenders to mandatory sentences of life without the possibility of parole under the POAA when one of their prior strike offenses was committed as young adults is either cruel, in violation of article I, I section 14 of the Washington Constitution, or cruel and unusual, in violation of the Eighth Amendment to the United States constitution. We hold that it is not.

The petitioners have not shown a national consensus against this sentencing practice, and our own independent judgment confirms that there is nothing to suggest that these petitioners are less culpable than other POAA offenders.  The sentences in these cases do| not categorically violate the Washington Constitution.  Because our I constitution is more protective than the federal constitution in this context, we need not analyze this question under the Eighth Amendment.  Finally, we hold that these sentences are not grossly disproportionate to the offenses under the Fain factors.

Adding to the intrigue of this ruling is a thoughtful concurrence by Justice Yu that was joined by two other members of the court which starts this way:

This case touches on the issue of sentencing individuals to life without the possibility of parole for a wide range of lower level offenses.  I agree with the court's narrow holding that there is currently no categorical constitutional bar to the inclusion of an offense committed as a young adult as a predicate for purposes of the Persistent Offender Accountability Act ("Three Strikes Law"), ROW 9.94A.570.   But a punishment that may be constitutionally permissible today may not pass muster tomorrow.  I therefore write separately to express my growing discomfort with the routine practice of sentencing individuals to life without the possibility of parole, regardless of the offense or the age of the offender. 

This court's decision in State v, Gregory limited the array of punishments that may be imposed for the most serious offenses by eliminating the death penalty. 192 Wn.2d 1, 427 P.3d 621 (2018) (plurality opinion).  Every death sentence in this state has been commuted to the next most severe punishment available — life without the possibility of parole. Id. at 36.  As a result, the range of offenses that require imposition of the most severe punishment the state can impose has been expanded.  Persistent offenders who have committed robberies and assaults are now grouped with offenders who have committed the most violent of crimes, including aggravated murder and multiple rapes.  The gradation of sentences that once existed before Gregory have now been condensed.  As a result, a serious reexamination of our mandatory sentencing practices is required to ensure a just and proportionate sentencing scheme.

August 24, 2019 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Recommended reading, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Monday, August 19, 2019

Seeking input and perspectives on "hot topics" in sentencing law, policy and practice

I am very excited that this afternoon I have the honor and privilege to begin teaching a new group of bright Ohio State students my Sentencing Law course.  I have taught this three-credit, upper-level course nearly every other year since I started teaching waaaaay back in 1997.  Since 2003, I have had the added pleasure of teaching from my own co-authored casebook, and this time around I get to use the new streamlined Fourth Edition of Sentencing Law and Policy: Cases, Statutes, and Guidelines.

As regular readers can imagine, because sentencing law has changed a lot over the past 20 years, my course coverage has changed a lot over the years.  Indeed, I always get a kick out of reviewing my teaching notes from the late 1990s which pressed students, inter alia, to consider why the US still allowed the execution of juvenile and intellectually disabled murderers and whether there were any constitutional concerns with federal judicial fact-finding based on a preponderance of evidence to increases guideline sentencing ranges.

Of course, many basic theoretical, policy and practical issues concerning why, who and how we sentence in the United States are enduring.  But each time I teach this course, in addition to reviewing the basics of capital punishment and federal sentencing doctrines, I am eager to include coverage of the most-pressing/most-interesting/most-consequential topics of current doctrinal and policy debate. 

So, as I start the latest (and I hope greatest) version of my Sentencing Law course, I am eager to hear from readers of all stripes (including lawyers and non-lawyers, professors and students) concerning what they might consider important "hot-topic" units in a three-credit, upper-level Sentencing Law course.   Perhaps stated slightly different, I am eager to hear from everyone and anyone concerning what sentencing topics they might assume my students now learn about when they hear they have taken a course on Sentencing Law.  (A similar post from 5.5 years ago generated a couple dozen interesting comments which are still interesting and timely.  But I am eager to see what readers might have to say now.)

August 19, 2019 in Recommended reading, Who Sentences | Permalink | Comments (5)

Saturday, August 10, 2019

Another two more open access articles from FSR issue on "The Tyranny of the Trial Penalty"

In this post a few months ago, I highlighted the publication of the latest extraordinary (double) issue of the Federal Sentencing Reporter titled "The Tyranny of the Trial Penalty: The Consensus that Coercive Plea Practices Must End."  As mentioned before, this FSR issue includes 16(!) original pieces on various aspects of "The Trial Penalty," and it is fully available on-line at this link

As also mentioned before, though a full subscription to FSR is needed for full on-line access to all FSR content, the University of California Press has graciously agreed to make various articles from this special issue available to all on-line for a limited period.  Valuably, the issue's terrific introduction authored by Norman Reimer, executive director of NACDL, and his colleague Martín Sabelli, NACDL's second vice president, is to remain freely available for an extended period of time.  And \these two additional pieces are now accessible to all (with a paragraph quoted here):

The Insidious Injustice of the Trial Penalty: “It is not the intensity but the duration of pain that breaks the will to resist. by Emma Andersson and Jeffery Robinson

Like most abusive practices in the criminal legal system, the trial penalty has a greater impact on people of color and the poor than it does on others. Although wealthy clients cannot buy their way out of a trial penalty, they can mitigate its impact by paying higher fines or penalties in exchange for shorter sentences. Bail pending resolution of the case can also impact the ultimate sentence — people who are out of custody at the time of sentencing tend to get shorter sentences that those who are in custody. Money and race play out in the bail system like they do in every other part of the criminal legal system. In addition to shorter sentences, the conditions of confinement faced by wealthy people (who can hire consultants to try to improve placement in a prison system) can be extraordinarily better than those generally faced by people of color and the poor.

Innocents Who Plead Guilty: An Analysis of Patterns in DNA Exoneration Cases by Glinda S. CooperVanessa Meterko and Prahelika Gadtaula

Since 1989, the year of the first DNA exoneration, more than 360 people have been exonerated based on DNA evidence. The vast majority (> 98 percent) had been wrongfully convicted of serious felonies involving homicide or sexual assault. These DNA exonerations represent 15 percent of the 2,359 exonerations documented in the United States. Among the many insights drawn from these wrongful convictions is the realization that a guilty plea is not an uncommon outcome for innocent people who have been charged with a crime: 11 percent of the DNA exonerees recorded by the Innocence Project pleaded guilty.  This paper explores demographic, crime-related, and sentencing factors associated with the decision of people to plead guilty to a crime they did not commit.

Prior related posts:

August 10, 2019 in Procedure and Proof at Sentencing, Recommended reading | Permalink | Comments (0)

Thursday, August 08, 2019

Lots of stories and commentary catching my eye as I am on the road

Blogging has been a bit lighter than usual for the first part of August because I am on the road for a last bit of summer fun before the new school year kicks into gear.  As a result, I have lacked time to blog about, but have today found some time to round up here, a a number of stories and commentaries that have caught my eye in recent days in my newsfeed:

From BuzzFeed News, "The Criminal Justice System Is Bad For Your Health, Warns New York City’s Health Department"

From The Crime Report, "The Redemption of Teen Killers: Why ‘Miller’s Children’ Deserved Their Second Chance"

From Forbes, "NAACP, ACLU And Allies Demand Congress Pass Marijuana Bill With Justice Focus"

From Governing, "America Has a Health-Care Crisis — in Prisons"

From The Hill, "Criminal justice reform should extend to student financial aid"

From the Los Angeles Times, "Once tough-on-crime prosecutors now push progressive reforms"

From the New York Times, “A Relentless Jailhouse Lawyer Propels a Case to the Supreme Court

From Reuters, "U.S. federal death penalty protocol faces fresh legal scrutiny"

From the San Francisco Chronicle, "First inmate released under new California resentencing law"

From Simple Justice, "Kopf: A 'Second Look' Option Might Lessen Federal Sentencing Disparity"

From the Washington Post, "Edward Simms is living proof that defenders of mandatory minimum sentences are wrong"

As always, I welcome reader input on criminal justice stories and reform commentaries here or elsewhere that should be getting more (or less) attention here and elsewhere.

August 8, 2019 in Recommended reading | Permalink | Comments (0)

Wednesday, July 31, 2019

Two more open access articles from FSR issue on "The Tyranny of the Trial Penalty"

In this post last month, I highlighted the publication of the latest extraordinary (double) issue of the Federal Sentencing Reporter titled "The Tyranny of the Trial Penalty: The Consensus that Coercive Plea Practices Must End."  As mentioned before, this FSR issue includes 16(!) original pieces on various aspects of "The Trial Penalty," and it is fully available on-line at this link

As also mentioned before, though a full subscription to FSR is needed for full on-line access to all FSR content, the University of California Press has graciously agreed to make various articles from this special issue available to all on-line for a limited period.  Valuably, the issue's terrific introduction authored by Norman Reimer, executive director of NACDL, and his colleague Martín Sabelli, NACDL's second vice president, is to remain freely available for an extended period of time.  And now I see that these two additional pieces are now accessible to all (with a few paragraphs quoted here):

The “Virtual Extinction” of Criminal Trials: A Lawyer’s View from the Well of the Court by Frederick P. Hafetz

Twenty-five years earlier, nearly 20 percent of defendants in the federal criminal justice system went to trial.  By the time the Lorenzos were indicted in 2004, only 4 percent went to trial. That number has since decreased even further so that now less than 3 percent go to trial.  Since the mid-1980s, as Manhattan federal judge Jed Rakoff states, federal criminal trials have undergone a “virtual extinction.”

This dramatic decline in the frequency of criminal trials in the federal system is mirrored in the state system as well.  While data in the state criminal justice systems on the number of trials is not maintained as comprehensively as it is in the federal system, available data and studies show a similar pattern of decline, although not as sharp as in the federal system.  In New York, California, and Illinois, for example, the percentage of defendants going to trial is less than-one half of what it was thirty years ago.

Why the Founders Cherished the Jury by Vikrant P. Reddy and R. Jordan Richardson

You would be hard-pressed to find a Constitutional issue that garnered more agreement among the Founders than the right to trial by jury.  As historian William Nelson notes, “For Americans after the Revolution, as well as before, the right to trial by jury was probably the most valued of all civil rights.”  Writing in 1788, Alexander Hamilton observed that among the “friends and adversaries of the plan of the [Constitutional] convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury.” Hamilton’s chief political rival, Thomas Jefferson, echoed these sentiments, and considered trial by jury as the “only anchor ever yet invented by man, by which a government can be held to the principles of its constitution.”

Prior related posts:

July 31, 2019 in Procedure and Proof at Sentencing, Recommended reading | Permalink | Comments (4)

Sunday, July 28, 2019

One last reminder of two recent paper calls on SCOTUS and on the CSA

With deadlines now approaching, I figured today provided a good time to post a reminder about these two timely call for papers on subjects and projects in my world:

Seeking Commentaries for Federal Sentencing Reporter Issue on “The October 2018 SCOTUS Term and the Criminal Justice Work of its Members”

FSR is open and interested in publishing pieces addressing an array of topics relating to the current Supreme Court's work on the criminal side of its docket.  Commentaries can focus on a single case (or even a single opinion in a single case) or they can address a series of cases or a developing jurisprudence.  Contributors are also welcome to discuss the voting patterns and rulings of a particular Justice or of the Court as a whole.  How the Court selects criminal cases for review or what topics should garner the Justices' attention in the years ahead are also fitting topics.  In short, any engaging discussion of the work of the current Court on criminal justice matters will fit the bill.

FSR pieces are shorter and more lightly footnoted than traditional law review pieces; ideally, drafts are between 2000 and 5000 words with less than 50 footnotes.  Drafts need to be received on or before August 1 to ensure a timely publication, and should be sent to co-managing editors Douglas Berman (berman.43 @ osu.edu) and Steven Chanenson (chanenson @ law.villanova.edu) for consideration.

Call for Papers: "The Controlled Substances Act at 50 Years"

Although the federal drug war has been controversial since its inception, the CSA’s statutory framework defining how the federal government regulates the production, possession, and distribution of controlled substances has endured.  As we mark a half-century of drug policy under the CSA, the Academy for Justice at the Arizona State University Sandra Day O'Connor College of Law and the Drug Enforcement & Policy Center at The Ohio State University Moritz College of Law are together sponsoring a conference to look back on how the CSA has helped shape modern American drug laws and policies and to look forward toward the direction these laws could and should take in the next 50 years.

The conference, "The Controlled Substances Act at 50 Years," will take place on February 20-22, 2020, at Arizona State University Sandra Day O'Connor College of Law in Phoenix, Arizona.  As part of this conference we are soliciting papers for the February 22 scholarship workshop. Junior scholars are encouraged to submit, and will be paired with a senior scholar to review and discuss the paper.

Each paper should reflect on the past, present or future of the Controlled Substances Act and drug policy in the United States.  Participants should have a draft to discuss and circulate by February 10.  The papers will be gathered and published in a symposium edition of the Ohio State Journal of Criminal Law, a peer-reviewed publication.  Participants should have a completed version to begin the publication process by March 15.  Final papers may range in length from 5,000 words to 20,000 words.  Deadline: Please submit a title and an abstract of no more than 300 words, to Suzanne.Stewart.1 @ asu.edu by August 15, 2019.  Accepted scholars will be notified by September 15, 2019.

July 28, 2019 in Recommended reading | Permalink | Comments (0)

Monday, July 22, 2019

A fitting tribute to the work of Mark Kleiman

A huge figure in the criminal justice reform and drug policy space passed away yesterday, and German Lopez at Vox put together this effective substantive tribute (with links) under the headline "Mark Kleiman, who changed the way we think about crime and drugs, has died at 68: RIP Mark Kleiman, one of our best criminal justice scholars and my friend."  Here is how it gets started:

Mark Kleiman, an intellectual giant in criminal justice and drug policy, died at 68 years old on Sunday due to complications from a kidney transplant, his sister confirmed.

Kleiman, who last worked as a public policy professor at New York University’s Marron Institute, was known for his imaginative approach to policy. He had a knack for breaking through simplified public debates and finding alternative answers to complex problems. As Stanford drug policy expert Keith Humphreys put it, Kleiman “was one of the most creative criminal policy experts of his generation.”

With marijuana legalization, for instance, Kleiman was known for rejecting what he described as a false choice between criminal prohibition and commercial legalization — arguing that there was a middle ground that would end prohibition while preventing the rise of “Big Marijuana,” an entity he, and other experts, feared will market pot irresponsibly just as the alcohol, tobacco, and opioid industries have.

Kleiman also helped research breakthrough approaches for tacking crime and drug misuse. His study with Angela Hawken on Hawaii’s Opportunity Probation with Enforcement (HOPE) program helped demonstrate the principles of “swift, certain, and fair” punishment — a concept that, when properly implemented, uses prison sentences much shorter than those we have today to deter people from criminal behavior, with high success rates. It suggested there was a policy approach that could lead to both less incarceration and less crime.

July 22, 2019 in Recommended reading, Who Sentences | Permalink | Comments (0)

Tuesday, July 16, 2019

Reminders of two recent paper calls on SCOTUS and on the CSA

For the next few weeks, I am not going to be able to resist reminding everyone of these two timely call for papers on subjects and projects in my world:

Call for Papers: "The Controlled Substances Act at 50 Years"

Although the federal drug war has been controversial since its inception, the CSA’s statutory framework defining how the federal government regulates the production, possession, and distribution of controlled substances has endured.  As we mark a half-century of drug policy under the CSA, the Academy for Justice at the Arizona State University Sandra Day O'Connor College of Law and the Drug Enforcement & Policy Center at The Ohio State University Moritz College of Law are together sponsoring a conference to look back on how the CSA has helped shape modern American drug laws and policies and to look forward toward the direction these laws could and should take in the next 50 years.

The conference, "The Controlled Substances Act at 50 Years," will take place on February 20-22, 2020, at Arizona State University Sandra Day O'Connor College of Law in Phoenix, Arizona.  As part of this conference we are soliciting papers for the February 22 scholarship workshop. Junior scholars are encouraged to submit, and will be paired with a senior scholar to review and discuss the paper.

Each paper should reflect on the past, present or future of the Controlled Substances Act and drug policy in the United States.  Participants should have a draft to discuss and circulate by February 10.  The papers will be gathered and published in a symposium edition of the Ohio State Journal of Criminal Law, a peer-reviewed publication.  Participants should have a completed version to begin the publication process by March 15.  Final papers may range in length from 5,000 words to 20,000 words.  Deadline: Please submit a title and an abstract of no more than 300 words, to Suzanne.Stewart.1 @ asu.edu by August 15, 2019.  Accepted scholars will be notified by September 15, 2019.

 

Seeking Commentaries for Federal Sentencing Reporter Issue on “The October 2018 SCOTUS Term and the Criminal Justice Work of its Members”

FSR is open and interested in publishing pieces addressing an array of topics relating to the current Supreme Court's work on the criminal side of its docket.  Commentaries can focus on a single case (or even a single opinion in a single case) or they can address a series of cases or a developing jurisprudence.  Contributors are also welcome to discuss the voting patterns and rulings of a particular Justice or of the Court as a whole.  How the Court selects criminal cases for review or what topics should garner the Justices' attention in the years ahead are also fitting topics.  In short, any engaging discussion of the work of the current Court on criminal justice matters will fit the bill.

FSR pieces are shorter and more lightly footnoted than traditional law review pieces; ideally, drafts are between 2000 and 5000 words with less than 50 footnotes.  Drafts need to be received on or before August 1 to ensure a timely publication, and should be sent to co-managing editors Douglas Berman (berman.43 @ osu.edu) and Steven Chanenson (chanenson @ law.villanova.edu) for consideration.

July 16, 2019 in Recommended reading | Permalink | Comments (0)

Wednesday, July 10, 2019

"Criminal Justice Reform: A Survey of 2018 State Laws"

The title of this post is the title of this notable new white paper from The Federalist Society authored by Robert Alt. Here is how the document gets started:

State legislatures across the country took significant strides in reforming their criminal justice regimes throughout 2018. States revised their existing criminal codes, passed new legislation, and amended their constitutions in order to address a range of criminal justice concerns.  Several states enacted similar legislative reforms, and a survey of the changing criminal justice landscape reveals that states were most willing to modify their criminal laws in the areas related to pre-trial detention or bail reform, civil asset forfeiture, marijuana legalization, drug-induced homicide, and opioid abuse. Although not an exhaustive list of new criminal justice legislation, the most notable reforms fall generally among those categories.

Criminal justice reform did not trend in a singular direction.  Some reform measures, for example, appear designed to liberalize drug-enforcement by legalizing medical and recreational use of marijuana, while others establish more severe penalties and stricter enforcement protocols for fighting criminal drug trafficking and opioid abuse.  Two states made significant changes to their pretrial detention protocols, giving state judges more latitude to use risk-assessment tools and easing the financial burdens that the cash bail systems had placed upon low-income criminal defendants.  Several states amended their civil asset forfeiture laws to make their asset forfeiture process more transparent and to make asset forfeiture more difficult for law enforcement. Still other states, like Massachusetts, adopted sweeping reform measures across virtually their entire criminal code.

Support for and against criminal laws and punishments do not tend to break along traditional partisan lines.  Although some legislative reforms proved politically contentious, including several of the statewide ballot initiatives, others were largely bipartisan efforts that saw legislatures and governors from both ends of the political spectrum reach tenable compromises.  Some reform measures even passed their state legislatures unanimously.

July 10, 2019 in Recommended reading, Who Sentences | Permalink | Comments (0)

ABA releases "The State of Criminal Justice 2019" (with capital punishment chapter online)

The American Bar Association's Criminal Justice Section produces a terrific annual review of criminal justice developments, and the latest version is now available here under the title "The State of Criminal Justice 2019."  Here is how the text is described:

This publication examines and reports on the major issues, trends and significant changes in the criminal justice system. The 2019 volume contains chapters focusing on specific aspects of the criminal justice field, with summaries of all of the adopted official ABA policies passed in 2018-2019 that address criminal justice issues.

Authors from across the criminal justice field provide essays on topics ranging from white collar crime to international law to juvenile justice. The State of Criminal Justice is an annual publication that examines and reports on the major issues, trends and significant changes in the criminal justice system during a given year. As one of the cornerstones of the Criminal Justice Section's work, this publication serves as an invaluable resource for policy-makers, academics, and students of the criminal justice system alike.

In addition, the Capital Punishment chapter from this collection is available at this link, and it starts with this interesting data on capital sentences imposed in 2018:

The number of death penalties imposed in the United States in 2018 was an estimated 42.  The number of death sentences imposed between 2015 and 2018 was half the number imposed in the preceding four years. 

To put this in context, death sentences, after peaking at 315 in 1996, declined over time to 114 in 2010, and then dropped considerably in 2011 to 85, and were 82 in 2012 and 83 in 2013, before a large drop to 73 in 2014, and a bigger drop to 49 in 2015, and then fell to 31 in 2016, before rising to 2017’s 39 and 2018’s 42.

For the first year since the death penalty resumed after Furman v. Georgia, there was not in 2018 a single county in the entire United States in which more than two death sentences were imposed.  Some states that used to be among the annual leaders in imposing death sentences have now gone years without any new death sentences.

One notable state in this regard, Georgia, as of March 2019 has gone five full years without a new death penalty.  In explaining why, Bill Rankin of the Atlanta Journal Constitution pointed to the facts that life without parole (“LWOP”) can now be imposed in Georgia without the prosecutor’s having sought capital punishment and is now recognized by jurors to really mean a life sentence with no chance of parole; that the quality of trial-level defense lawyers’ performance has greatly increased; and that it is now far more difficult to get juries to vote for death sentences -- even when the crimes are especially aggravated.

July 10, 2019 in Data on sentencing, Death Penalty Reforms, Recommended reading | Permalink | Comments (0)

Tuesday, July 09, 2019

Reminder of opportunity to author commentary for the Federal Sentencing Reporter on SCOTUS Term

With folks perhaps now fully back in (summer) work mode after the holiday week, I wanted to note again this call for papers from the Federal Sentencing Reporter:

Seeking Commentaries for Federal Sentencing Reporter Issue on “The October 2018 SCOTUS Term and the Criminal Justice Work of its Members”

In a September SCOTUSblog posting, Professor Rory Little called the criminal cases on the Supreme Court's docket for its October 2018 Term a "law professor’s dream."  He noted the Term included big constitutional cases addressing the Double Jeopardy Clause and the Excessive Fines Clause, as well as perennial hot topics involving application of the death penalty and the Armed Career Criminal Act.  With the Term now concluded, the Federal Sentencing Reporter (FSR) is eager to take stock through a call for papers for publication in a special October 2019 FSR issue.  And we are looking to publish thoughtful commentaries authored by practitioners and policy advocates as well as by law professors.

For this issue, FSR is open and interested in publishing pieces addressing an array of topics relating to the current Supreme Court's work on the criminal side of its docket.  Commentaries can focus on a single case (or even a single opinion in a single case) or they can address a series of cases or a developing jurisprudence.  Contributors are also welcome to discuss the voting patterns and rulings of a particular Justice or of the Court as a whole.  How the Court selects criminal cases for review or what topics should garner the Justices' attention in the years ahead are also fitting topics.  In short, any engaging discussion of the work of the current Court on criminal justice matters will fit the bill.

FSR pieces are shorter and more lightly footnoted than traditional law review pieces; ideally, drafts are between 2000 and 5000 words with less than 50 footnotes.  Drafts need to be received on or before August 1 to ensure a timely publication, and should be sent to co-managing editors Douglas Berman (berman.43 @ osu.edu) and Steven Chanenson (chanenson @ law.villanova.edu) for consideration.

July 9, 2019 in Recommended reading | Permalink | Comments (0)

Monday, July 08, 2019

Summer reading (with a Fall cover date) from the American Journal of Criminal Law

Over the holiday week, I noticed that American Criminal Law Review already has published its Fall 2019 issue, and that this issue includes a number of articles that sentencing fans may want to add to their summer reading list: 

The Biased Algorithm: Evidence of Disparate Impact on Hispanics by Melissa Hamilton

Is Mass-Incarceration Inevitable? by Andrew Leipold

Defining the Proper Role of “Offender Characteristics in Sentencing Decisions: A Critical Race Theory Perspective by Lisa Saccomano

Cruel, Unusual, and Unconstitutional: An Originalist Argument for Ending Long-Term Solitary Confinement by Merin Cherian

Pandora’s Algorithmic Black Box: The Challenges of Using Algorithmic Risk Assessment in Sentencing by Leah Wisser

July 8, 2019 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Recommended reading, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Friday, June 28, 2019

Reflect, respond, react to latest SCOTUS Term by writing a commentary for the Federal Sentencing Reporter

Wearing my hat as an editor of the Federal Sentencing Reporter, I am happy to reproduce this solicitation from the journal below (while being eager to encourage readers to put together their views ASAP for possible publication):

Seeking Commentaries for Federal Sentencing Reporter Issue on “The October 2018 SCOTUS Term and the Criminal Justice Work of its Members”

In a September SCOTUSblog posting, Professor Rory Little called the criminal cases on the Supreme Court's docket for its October 2018 Term a "law professor’s dream."  He noted the Term included big constitutional cases addressing the Double Jeopardy Clause and the Excessive Fines Clause, as well as perennial hot topics involving application of the death penalty and the Armed Career Criminal Act.  With the Term now concluded, the Federal Sentencing Reporter (FSR) is eager to take stock through a call for papers for publication in a special October 2019 FSR issue.  And we are looking to publish thoughtful commentaries authored by practitioners and policy advocates as well as by law professors.

For this issue, FSR is open and interested in publishing pieces addressing an array of topics relating to the current Supreme Court's work on the criminal side of its docket.  Commentaries can focus on a single case (or even a single opinion in a single case) or they can address a series of cases or a developing jurisprudence.  Contributors are also welcome to discuss the voting patterns and rulings of a particular Justice or of the Court as a whole.  How the Court selects criminal cases for review or what topics should garner the Justices' attention in the years ahead are also fitting topics.  In short, any engaging discussion of the work of the current Court on criminal justice matters will fit the bill.

FSR pieces are shorter and more lightly footnoted than traditional law review pieces; ideally, drafts are between 2000 and 5000 words with less than 50 footnotes.  Drafts need to be received on or before August 1 to ensure a timely publication, and should be sent to co-managing editors Douglas Berman (berman.43 @ osu.edu) and Steven Chanenson (chanenson @ law.villanova.edu) for consideration.

Here are just a sampling of SCOTUS posts from this blog on the Term's big cases to inspire contributions:

June 28, 2019 in Recommended reading | Permalink | Comments (0)

Tuesday, June 04, 2019

Latest (double) issue of FSR covers "The Tyranny of the Trial Penalty": An introduction

4-5.cover-sourceI am extraordinarily excited to be able to report the exciting news that the latest extraordinary issue of the Federal Sentencing Reporter is now fully available on-line at this link.  The cover page from the Issue, which lists the 16(!) original pieces on various aspects of "The Trial Penalty," can be accessed here.

This issue of FSR emerges from the publication of a great report last year by the National Association of Criminal Defense Lawyers (NACDL) titled "The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It" (blogged here).  Folks at FSR contacted the folks at NACDL to explore the idea of developing a set of new commentaries using "The Trial Penalty" report as a springboard.

Wonderfully, Norman Reimer, executive director of NACDL, working with his colleague Martín Sabelli, NACDL's second vice president, worked tirelessly to solicit an outstanding array of original articles for this issue.  They were so productive, the project became a special FSR double issue so that a lengthy reprint of the "The Trial Penalty" report could appear together with all the terrific solicited commentaries addressing the importance of criminal trials and their disappearance from historical, practical, empirical, and international perspectives.

As the title of this post hints, I think this new FSR double issue merits a series of posts to highlight all of its terrific contents.  So here I will start by recommending the issue's terrific introduction authored by Norman Reimer and Martín Sabelli, which is fully titled "The Tyranny of the Trial Penalty: The Consensus that Coercive Plea Practices Must End."  Here is its opening paragraphs:

Every day, in virtually every criminal court throughout the nation, people plead guilty solely as a consequence of a prosecutor’s threat that they will receive an exponentially greater post-trial sentence compared to the pre-trial offer.  The process is simple and the logic inexorable: the prosecutor conveys a settlement offer to the defense attorney–very often at the outset of the case before the defense has investigated or received discovery–threatening a post-trial sentence much greater than the pre-trial offer.  The defense attorney–often before having had an opportunity to establish a relationship with the client–conveys that offer to her client who must choose between the opportunity and right to defend and the risk of adding years to the sentence if not decades after trial.  That differential is known as the trial penalty, and this scene unfolds routinely in courtrooms across the country as if the Framers had intended this legalized coercion to be the fulcrum of the criminal justice system.

The Framers did not so intend. The Framers, surprisingly for a modern reader, considered jury trials to be every bit as important as the right to cast votes for our representatives. In fact, John Adams declared that ‘‘[r]epresentative government and trial by jury are the heart and lungs of liberty. Without them we have no other fortification against being ridden like horses, fleeced like sheep, worked like cattle, and fed and clothed like swine and hounds.’’  President Adams’ colorful language reflects the strength of his view — a view shared by his contemporaries and the Framers — that the right to trial by jury protects the liberties of all individuals, not just the accused.  The Framers imagined a process in which the accused, assisted by counsel, evaluated the charges, received the evidence, and elected to exercise or not exercise the right to compel the government to prove guilt beyond a reasonable doubt.

June 4, 2019 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Who Sentences | Permalink | Comments (0)

Saturday, May 18, 2019

Rounding up some interesting criminal justice reads

Frequently, when I come across interesting criminal justice news pieces or commentary while working on other matters, I will email the link to myself with the hope I will find time later to blog about the item.  This week seemed to lead to an especially large number of these items in my in-box, and so I will blogging about them all through this round up.   

A few of these pieces are news accounts of notable court rulings, but most are commentary.  And everyone on of these pieces could justify its own post, which is my way of saying folks should check them all out.  So, in no particular order:

By Seth Mayer, "What Criminal Justice Reformers Can Learn from the Green New Deal"

By Adureh Onyekwere and Ames Grawert, "Welcome To The Age Of Bipartisan Criminal Justice Reform"

By Kara Gotsch, "Criminal justice includes food security — we can't ban the social safety net"

By John Pfaff, "Five myths about prisons"

By David Nathan, Joycelyn Elders and Bryon Adinoff, "21st Century Reefer Madness"

By Andrew Wolfson, "A prosecutor ridiculed a couple's patron saint. So a court reversed their drug convictions."

By John Ellement, "SJC orders release of Wayne Chapman, convicted child rapist"

By Tamara Gilkes Borr, "How the War on Drugs Kept Black Men Out of College"

By Doyle Murphy, "St. Louis’ Justice System Grapples Daily with an Impossible Question: What Punishment Fits the Crime?"

May 18, 2019 in Recommended reading, Who Sentences | Permalink | Comments (2)

Thursday, May 16, 2019

Brennan Center releases great new collection of essays titled "Ending Mass Incarceration: Ideas from Today's Leaders"

Back in late April 2015, roughly 18 months before a big election, the Brennan Center for Justice released this fascinating publication (running 164 pages) titled "Solutions: American Leaders Speak Out on Criminal Justice."  That 2015 publication had nearly two dozen leaders, mostly prominent political figures with big histories and/or plans, discussing a variety of criminal justice reform topics from a variety of perspectives.  In my original post about this great 2015 collection, I expressed concern that former Prez Bill Clinton was tasked with authoring the forward and that former Prez George Bush was not a contributor to the collection.  Others noted, quite rightly and tellingly, that Hillary Clinton's essay in this collection was filled "with platitudes and self-aggrandizing references" within a "shallow discussion" that was "especially embarrassing compared to Ted Cruz's."  I also noted here that the seven GOP political leaders included in the collection had set forth an array of reform priorities and proposals that made me optimistic for potential future bipartisan reforms.

Fast forward four years, and the Brennan Center for Justice is at it again.  Specifically, this morning it just released a 2019 version of timely criminal justice essays, this time under the title "Ending Mass Incarceration: Ideas from Today’s Leaders."  Interestingly, this new must-read collection is a bit shorter (only 112 pages), and it feels a lot more titled toward the left.  Specifically, as noted above, the 2015 collection had essays from seven prominent GOP politicians as well as two additional essays from past or present leaders of right-leaning advocacy groups (not to mention tough-on-crime Democrats like both Clintons and then-VP Joe Biden).  The new collection of essays, though it does include pieces by Jared Kushner, Mark Holden and Holly Harris, fails to have any essays from any elected Republicans or would-be presidential aspirants other than those running for the Democratic nomination.  Given that then-VP Joe Biden appeared in the last volume, I would have liked to now see an essay by current VP Mike Pence on these topics.  Notably, interesting Dem voices like Cory Booker and Kamala Harris got a chance to do repeat performances in this latest volume, but interesting GOP folks like Rand Paul and Rick Perry do not.  And many folks running for Prez on the Dem side are included, but we do not hear from folks like William Weld or John Kasich or any other distinctive right leaning voices.

I would not be surprised if the Brennan Center tried to get more GOP voices involved and ultimately had their requests for contributions denied.  So my goal here is not to fault the efforts in putting together this still very important volume.  I just think it important and significant (and perhaps telling) that the essays here do not appear nearly as bipartisan as they did back in 2015.  But that reality makes this collection no less significant, and I am looking forward to finding time soon to read (and perhaps blog about) all these essays here.

Prior related posts about 2015 volume:

UPDATE: I now see that the New York Times has this good article about this new publication under the bad headline "Left and Right Agree on Criminal Justice: They Were Both Wrong Before." (It is a bad headline because the "Right" is not really fully captured in this collection.)  Here are excerpts from the Times piece:

Of the more than 20 politicians and activists who contributed essays, all but three framed the issue explicitly as a matter of racial justice, emphasizing the deep disparities in a system in which people of color are many times more likely than white people to be incarcerated. Nine called for reducing or abolishing mandatory minimum sentences.  Eight called for eliminating cash bail.  Seven called for alternatives to prison for nonviolent crimes....

No one in the 2015 report suggested decriminalizing marijuana, but Mr. Booker, Senator Elizabeth Warren of Massachusetts and former Representative Beto O’Rourke of Texas did in the new one, and other candidates have suggested it elsewhere.  In 2015, limiting employers’ ability to ask about criminal history was the central proposal from Cornell William Brooks of the N.A.A.C.P.  This year, Mr. Booker, Mr. Kushner, Mr. O’Rourke and Senator Sherrod Brown of Ohio all called for it.

The new centerpieces include eliminating cash bail and getting rid of mandatory minimum sentences altogether.  Senator Kirsten Gillibrand of New York suggested abandoning prison sentences for low-level offenses.  Senator Bernie Sanders of Vermont, Ms. Warren and Mr. O’Rourke proposed abolishing for-profit prisons, which, Mr. Sanders wrote, “have a greater interest in filling the pockets of their shareholders by perpetuating imprisonment” than in rehabilitation.

May 16, 2019 in Recommended reading, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Monday, May 13, 2019

Recent Harvard Law Review issue covers prison abolition

I managed to miss that the Development in the Law section of the April issue of the Harvard Law Review examined prison abolition from multiple angles.  Here are titles and links to the articles:

May 13, 2019 in Prisons and prisoners, Recommended reading | Permalink | Comments (0)

Saturday, May 11, 2019

New issue of Crime and Justice covers "American Sentencing — What Happens and Why?"

I just received an email reporting that the latest issue of Crime and Justice is in print, and all sentencing fans will want to get access to this volume. This issue has 10(!) amazing articles put together by editor Michael Tonry around the topic of "American Sentencing — What Happens and Why?." Here is the list of titles and authors (and clicking through here enables seeing abstracts for each):

May 11, 2019 in Federal Sentencing Guidelines, Recommended reading, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (0)

Thursday, May 09, 2019

"Unusual State Capital Punishments"

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

This article argues that many of the states that retain the death penalty currently violate their own constitutions because their use of the death penalty is unusual.  Specifically, the death penalty in some states, particularly when assessed in an intra-state manner examining its use across counties, suggests that the rareness of its use might mean that it has become an unusual punishment.  As a result, this article explores the twenty-six capital states that proscribe unusual punishments and categorizes them based on the likelihood that their utilization of the death penalty violates their state constitution.

Part I of the article explains the concept of unusualness under the Eighth Amendment as developed by the United States Supreme Court in its capital cases.  In Part II, the article explores the Eighth Amendment analogues in state constitutions that similarly prohibit unusual punishments and the conjunctive and disjunctive language of the state constitutions, before demonstrating how the Eighth Amendment approach could translate to the analysis of unusualness under state constitutional law.  Part III then examines the states that have unusual proscriptions in their state constitutions, and categorizes the states based on the likelihood that their use of the death penalty violates their state constitution.  Finally, in Part IV, the article argues for an expansive application of state constitutions to bar unusual state capital punishments, exploring the policy reasons supporting this analytical move.

May 9, 2019 in Death Penalty Reforms, Procedure and Proof at Sentencing, Recommended reading, Sentences Reconsidered | Permalink | Comments (0)

Thursday, April 25, 2019

"The High Stakes of Low-Level Criminal Justice"

The title of this post is the title of this notable book review authored by Alexandra Natapoff (who has, as noted here, her own book on this important topic). Here is the review's abstract:

The low-level misdemeanor process is a powerful socio-legal institution that both regulates and generates inequality.  At the same time, misdemeanor legal processing often ignores many foundational criminal justice values such as due process, evidence, and even individual guilt.  These features are linked: the erosion of the rule of law is one of the concrete mechanisms enabling the misdemeanor system to take aim at the disadvantaged, rather than at the merely guilty. 
In the book Misdemeanorland, Issa Kohler-Hausmann describes the inegalitarian workings of the misdemeanor legal process in New York City and how it operates as a system of managerial social control over the disadvantaged even when it stops short of convicting and incarcerating them.  This Review summarizes the book’s key contributions to the burgeoning scholarly discourse on misdemeanors and then extends its insights about New York to illuminate the broader dynamics and democratic significance of the U.S. misdemeanor process.

Prior related post:

April 25, 2019 in Procedure and Proof at Sentencing, Recommended reading, Who Sentences | Permalink | Comments (0)

Sunday, April 14, 2019

Lots of good diverse weekend criminal justice reads

I have already spent a very large number of hours this weekend watching sports (congrats Tiger and Let's Go Jackets), and I still have lots more sports (deGrom and Alonso are on my fantasy team) and a series premier still to watch tonight.  But amidst all the nice distractions (and finally some nice weekend weather in central Ohio), I was able to catch up with some notable recent criminal justice commentary from an array of notably diverse sources.  Each of these linked pieces merit their own blog post, but a busy weekend requires just this round-up:

April 14, 2019 in Data on sentencing, Recommended reading, Who Sentences | Permalink | Comments (1)

Thursday, February 28, 2019

Terrific new Yale Law Journal collection: "Critical Voices on Criminal Justice: Essays from Directly Affected Authors,"

The Yale Law Journal has this terrific new collection of papers under the banner "Critical Voices on Criminal Justice: Essays from Directly Affected Authors." Here is how the collection is introduced and titles with links:

People who have experienced incarceration have unique insights into the criminal system—insights that are often missing from legal scholarship and criminal justice policy. This Collection begins to bridge that gap.

Reginald Dwayne Betts, "What Break Do Children Deserve? Juveniles, Crime, and Justice Kennedy’s Influence on the Supreme Court’s Eighth Amendment Jurisprudence"

Tarra Simmons, "Transcending the Stigma of a Criminal Record: A Proposal to Reform State Bar Character and Fitness Evaluations"

Andrea James, "Ending the Incarceration of Women and Girls"

Shon Hopwood, "The Effort to Reform the Federal Criminal Justice System"

February 28, 2019 in Recommended reading | Permalink | Comments (1)

Thursday, November 15, 2018

"The Time Frame Challenge to Retributivism"

The title of this post is the title of this notable new paper by Adam Kolber now available via SSRN.  Here is its abstract:

Retributivists believe that criminal offenders should suffer or be punished in proportion to what they morally deserve.  There is, however, an often-ignored debate as to whether desert should be assessed across a person’s life (the “whole life” view) or only for crimes that are the subject of a current sentencing proceeding (the “current crime” view).  Both options are unappealing. 

The whole life view may be superior on theoretical grounds but is hopelessly impractical.  The current crime view is somewhat more practical but has no solid theoretical foundation. The lack of a suitable time frame in which to assess desert represents an important challenge to retributivist conceptions of proportionality.  Even uncertainty about the proper time frame may itself be detrimental to some retributivists’ hopes of justifying the incarcerative sentences of particular offenders.

November 15, 2018 in Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (0)

Wednesday, October 17, 2018

Lots of interesting recent reform commentary on lots of different topics

I am in the midst of one of those weeks in which I have too little time to follow the criminal justice news, let alone effectively blog about highlights. Consequently, I am going to start "hump day" today with a (too) quick round up of some interesting commentary I have seen from interesting folks on interesting topics.  In alphabetical order by author:

By Erwin Chemerinsky, "The death penalty is now unconstitutional in Washington state. California should be next"

By Seth Ferranti "How Men in Prison Reacted to Brett Kavanaugh's Confirmation"

By Newt Gingrich and Van Jones, "[Ohio] Issue 1 tackles opioid epidemic, puts politics aside"

By Kevin Ring, "I once wrote mandatory minimum laws. After ties to Abramoff landed me in prison, I know they must end."

 By Sally Yates, "Don't let Trump's use of celebrities distract you from his criminal-justice failures"

By Steve Zeidman, "Let more juvie felons out: Raise the Age is only a first step"

October 17, 2018 in Recommended reading, Who Sentences | Permalink | Comments (0)

Wednesday, October 03, 2018

A publisher's request for submissions from formerly and currently incarcerated individuals

This webpage provides this basic information about an interesting new project: "The New Press, a public interest book publisher, and the Center for American Progress (CAP), a public policy think tank, request submission of essays for consideration to be included for publication in a book featuring criminal justice reform ideas from formerly and currently incarcerated individuals." This document provides these additional details:

The book has the working title of What We Know and is expected to be edited by Daryl Atkinson and Vivian Nixon, both formerly incarcerated individuals now leading criminal legal reform organizations.  They are also members of the steering committee of the Formerly Incarcerated Convicted People’s Family Movement (FICPFM), a national effort to bring the voices of formerly incarcerated people and their families to the justice reform table.

Essays may be from 2500-5000 words and should be focused on a specific, serious, welldefined suggestion for how to improve a particular aspect of any part of our current system, from police encounters and arrests, to sentencing, incarceration, and re-entry.  Essays should contain elements of the author’s personal story in service of illuminating the suggested reform.  Thoughtful, original ideas that are not already widely in circulation and under discussion are especially welcome.

The top 12-20 essays will be published in the finished book, and the authors will receive $500 each.  Authors of the top 50 essays that were not selected for publication will also receive $50 each.  Co-authored pieces will be considered; additional payment for additional authors will be at the discretion of The New Press and CAP.  The New Press, CAP, and the editors retain full and final authority over the selection of the pieces that are published and/or receive a financial award.

The New Press, CAP, and the editors reserve the right to reject or select essays for any reason allowed under law.  However, essays will be selected based on the following:

I. Policy Recommendation: Applicants should clearly identify a specific issue or problem within the criminal justice system and propose a well-developed, targeted policy solution to address it.

II. Concept: Applicants are encouraged to propose new and progressive ideas for improving the criminal justice system. Policy proposals should be informed by lived experiences with the justice system.

III. Feasibility & Impact: Proposed reforms should be realistic and actionable, with the potential to create meaningful change within the criminal justice system.

IV. Readability: Successful essays will be engaging and combine narrative storytelling from the author’s own experience or knowledge, which illustrates a specific problem, with an original, constructive idea for how the problem might reasonably be remedied.

October 3, 2018 in Prisons and prisoners, Recommended reading, Who Sentences | Permalink | Comments (0)

Friday, September 21, 2018

So much great content and commentary at "The Appeal"

I noted in this post a few months ago a "renamed, revamped, and relaunched criminal justice publication: The Appeal" with a commitment to "focus on the most significant drivers of mass incarceration, which occur at the state and local level."  The Appeal is now in the a habit of producing so much good original content, I cannot keep up with it all, and so I thought it worthwhile here to highlight just some of the content over just the last few weeks that should be of interest to sentencing fans:

"The Incalculable Costs Of Mass Incarceration" by John Pfaff

"Texas D.A. Who Sent Woman To Prison For Five Years For Voting Made Her Own Election Mistake" by Steven Yoder

Podcast on "Justice In America Episode 9: How Democrats And Republicans Created Mass Incarceration" by Josie Duffy Rice and Clint Smith

"Safe Injection Sites Are On The Way. But Will Prosecutions Follow?" by Maura Ewing

"In New York, Most Parolees Can Now Vote — But Many County Websites Say They Can’t" by Emma Whitford

"A New Power For Prosecutors Is On The Horizon — Reducing Harsh Sentences" by Kyle Barry 

September 21, 2018 in Recommended reading, Who Sentences | Permalink | Comments (0)

Tuesday, August 28, 2018

"Right at Home: Modeling Sub-Federal Resistance as Criminal Justice Reform"

The title of this post is the title of this notable new paper authored by Trevor George Gardner now available via SSRN.  Here is its abstract:

Over the past two decades, state and local governments have crippled the federal war on marijuana as well as a series of federal initiatives designed to enforce federal immigration law through city and county police departments.  This Article characterizes these and similar events as sub-federal government resistance in service of criminal justice reform.  In keeping with recent sub-federal criminal reform movements, it prescribes a process model of reform consisting of four stages: enforcement abstinence, enforcement nullification, mimicry, and enforcement abolition.

The state and local governments that pass through each of these stages can frustrate the enforcement of federal criminal law while also challenging widely-held assumptions regarding the value of criminal surveillance and criminal sanction.  In promoting sub-federal government empowerment within the framework of criminal federalism, this Article breaks from conventional theories in the criminal law literature regarding the legal and policy strategies most likely to deliver fundamental change in American criminal justice.

August 28, 2018 in Pot Prohibition Issues, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Who Sentences | Permalink | Comments (0)

Monday, August 27, 2018

Lots of notable pieces in August 2018 issue of Criminology & Public Policy

I just saw the contents of the August 2018 issue of the journal Criminology & Public Policy, and now I have at least half-dozen new pieces to add to my reading list. The issue has collections of pieces on timely topics such as "Risk Assessment And Juvenile Justice" and "Victim Compensation And White -Collar Crime" and "Downsizing Our Prisons And Jails" and "Prison Length Of Stay And Recidivism." Here are just a few of the article on these topics that seem worth checking out:

August 27, 2018 in Prisons and prisoners, Recommended reading, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Thursday, August 09, 2018

The Modern Eighth Amendment

The title of this post was the name for one of yesterday's panels at the Southeastern Association of Law Schools ("SEALS") Conference. Organized by Will Berry (Ole Miss) and Meghan Ryan (SMU), the panel addressed the history of the Eighth Amendment, Eighth Amendment doctrine and its future. Panelists (myself included) covered everything from the original meaning of "cruel and unusual" to the Court's problematic use of the "evolving standards of decency" doctrine and the future of the death penalty and JLWOP.

There really was something for everyone (well, everyone interested in Eighth Amendment issues)!

Corinna Lain (Richmond) provides a full summary here.

August 9, 2018 in Guest blogging by Professor Cara Drinan, Recommended reading, Science | Permalink | Comments (4)