Thursday, May 13, 2021

New UCLA Law Review special issue examines "Jailhouse Lawyering"

I was pleased to see this notable new UCLA Law Review special issue devoted to "Jailhouse Lawyering."  The issue's introduction is available at this link and here is the end of its overview:

In this series, authors with experience as jailhouse lawyers and journalists behind bars write about the legal issues and systems affecting incarcerated persons today.  They share stories shaped by litigation and legal research.  They make arguments rooted in both their lived experiences and an extensive knowledge of the law.  Each of these authors — and countless others — is a testament to the power and tradition of jailhouse lawyering.  We are proud to feature their work here and look forward to the day when they are acknowledged and respected for their immeasurable contributions to the field.

Here are the articles in this great-looking special issue:

Barriers to Jailhouse Lawyering by Rahsaan "New York" Thomas 

Broken Systems: Function by Design by Phal Sok 

Applying for Compassionate Release as a Pro Se Litigant by Lynn Reece

Insurgent Knowledge: Battling CDCR From Inside the System. The Story of the Essential Collaboration Between Jailhouse Lawyers and Appointed Counsel & Lessons for Resentencing Today by Stephen Liebb & Gina Cassar

Bound by Law, Freed by Solidarity: Navigating California Prisons and Universities as a Jailhouse Lawyer by Michael Saavedra

What You Didn’t Know About Adelanto Immigration Detention Center by Anna Solodovnikova

Challenging Gladiator Fights in the CDCR by Kevin McCarthy

To Act Like a Democracy by Juan Moreno Haines

Jailhouse Lawyering From the Beginning by Kevin D. Sawyer

Making Bricks Without Straw: Legal Training for Female Jailhouse Lawyers in the Louisiana Penal System by Robin Bunley

An Old Lawyer Learns New Tricks: A Memoir by James C. Bottomley

May 13, 2021 in Prisons and prisoners, Recommended reading, Who Sentences | Permalink | Comments (1)

Saturday, May 08, 2021

"Encouraging Desistance from Crime"

The title of this post is the title of this extended literature review authored by Jennifer Doleac and now available via SSRN discussing lots of empirical research that may not be familiar, but should be of great interest, to lawyers and advocates.  Here is its abstract:

Half of individuals released from prison in the United States will be re-incarcerated within three years, creating an incarceration cycle that is detrimental to individuals, families, and communities.  There is tremendous public interest in ending this cycle, and public policies can help or hinder the reintegration of those released from jail and prison.  This review summarizes the existing empirical evidence on how to intervene with existing offenders to reduce criminal behavior and improve social welfare.

May 8, 2021 in Collateral consequences, Detailed sentencing data, Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (0)

Friday, April 30, 2021

"A better path forward for criminal justice: A report by the Brookings-AEI Working Group on Criminal Justice Reform"

The title of this post is the title of this lengthy new report which, as the title explains, is a product of a working group of The Brookings Institution and The American Enterprise Institute for Public Policy Research.  In addition to the full pdf, one can also access each part of this report online here, and here is are the closing sentiments authored by Rashawn Ray and Brent Orrell in the report's conclusion:

As we prepare to exit pandemic conditions, we recommend a strategic pause to gather data that will help us understand why criminal activity has gone up and inform both immediate responses as well as longer-term reform initiatives. There will be a temptation – on both sides – to argue that the recent spike confirms their prior understandings and policy preferences; either that the recent burst of crime can be effectively controlled by a ratcheting up “tough-on-crime” policies and practices or that it is exactly these practices that create the predicate for crime surges by disrupting lives, families, and neighborhoods through excessive reliance on force and incarceration. We should resist both of these views while we strive for a better understanding of the forces driving and shaping patterns of criminal offenses. It is entirely possible, given the unprecedented conditions of the past 12 months, we will find ourselves surprised by what we learn.

As is often the case, we may need an “and” approach rather than an “or” approach. Policies need to address recent rises in crime and overpolicing. This is why our report focuses on the criminal justice as a whole. Policing is the entree to the criminal justice system that sorts people based on race, social class, and place. Most people do not want less policing. They want equitable policing, and equitable treatment once interacting with the criminal justice system, either as a victim or perpetrator.

The sources of criminal activity and public safety challenges are multifaceted while our responses to them are often singular: more and tougher policing, prosecution, and incarceration. Not every public order challenge is a nail in need of a hammer. If we are to honor the dignity of every person and respect the sanctity of human life, we need a more balanced and diversified approach that recognizes confrontation and coercion are not the only, and often not the best, strategies for protecting our communities. Research-informed innovation that builds a more flexible and effective toolbox of responses is needed to move us towards the more peaceful, flourishing, and just society that is the shared objective of conservatives and progressives alike.

The essays in this volume and the recommended supplemental readings provide much food for thought about the major areas of criminal justice reform that should be at the top of the nation’s agenda.  The recommendations are varied and informed by differing perspectives on how to better balance the requirements of community safety, civil liberty, policing and procedural protections, and supporting and achieving lasting changes in attitudes, behaviors, and outcomes among justice-involved individuals as befits a nation committed to the idea of rehabilitation and not just retribution.  The authors in this volume will continue convening to discuss, debate, and research these complex issues, with a shared goal of identifying ways to improve our country’s criminal justice system.  These are deeply interconnected issues requiring a thorough, thoughtful, and comprehensive response rather than an immediate reversion to long-held and -argued views that may fit recent history or current conditions. A nation that incarcerates so many at such a high cost in public resources and wasted human lives can ill-afford to do otherwise.

All the individual chapter should be of interest to folks concerned about all aspects of criminal justice reform, and these chapters ought to be of particular interest to those who follow sentencing and corrections issues closely:

April 30, 2021 in Prisons and prisoners, Recommended reading, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (0)

Sunday, April 25, 2021

"A Primer on Risk Assessment for Legal Decisionmakers"

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

This primer is addressed to judges, parole board members, and other legal decisionmakers who use or are considering using the results of risk assessment instruments (RAIs) in making determinations about post-conviction dispositions, as well as to legislators and executive officials responsible for authorizing such use.  It is meant to help these decisionmakers determine whether a particular RAI is an appropriate basis for legal determinations and whether evaluators who rely on an RAI have done so properly.  This primer does not take a position on whether RAIs should be integrated into the criminal process.  Rather, it provides legal decision-makers with information about how RAIs are constructed and the types of information they provide, with the goal of facilitating their intelligent selection and use.

April 25, 2021 in Procedure and Proof at Sentencing, Recommended reading, Who Sentences | Permalink | Comments (1)

Friday, April 16, 2021

Lots and lots more good reads from The Appeal

I said here earlier this month that "just about every week, The Appeal has too much great new criminal justice content for me to keep up with."  This week serves as another example, so I will again try to make up for limited time with this round-up of links to highlight some of notable recent Apppeal-ing content:

By Maura Ewing, "Philadelphia D.A. Race Could Ramp Up The War On Drugs. Larry Krasner has been dropping drug possession charges at a growing pace. But his challenger in the May 18 primary wants to send these cases to drug court."

By Piper French, "Oregon’s Tough-On-Crime D.A. Association Faces A Reckoning. Three district attorneys are speaking out against Oregon’s “one-strike-you’re-out” law and breaking ranks with a prosecutors‘ lobby that has long pushed for harsh policies."

By Nikki Trautman Baszynski, "Prosecutors Should Stop Seeking the Death Penalty.  A growing number of Americans oppose the death penalty, but prosecutors — even some who call themselves “progressive”—continue to seek it. All prosecutors should stop pursuing and protecting capital convictions."

By Nikki Trautman Baszynski, "States Should Follow New York’s Lead On Restricting Solitary Confinement. Prisons and jails routinely use prolonged solitary confinement—holding someone in a cell for more than 22 hours a day with no meaningful human contact. New York just passed the HALT Act to limit this inhumane practice, and others states should do the same."

By Elizabeth Weill-Greenberg, "‘It Tears Families Apart’: Lawmakers Nationwide Are Moving to End Mandatory Sentencing. Repealing state and federal mandatory minimums will help address the mass incarceration crisis, advocates hope."

By Elizabeth Weill-Greenberg, "Maryland Bans Sentencing Children To Life Without Parole. The bill gives hundreds of people an opportunity to petition for earlier release."

April 16, 2021 in Recommended reading, Who Sentences | Permalink | Comments (0)

Tuesday, April 13, 2021

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

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

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

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

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

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

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

April 13, 2021 in Race, Class, and Gender, Recommended reading, Scope of Imprisonment | Permalink | Comments (0)

Friday, April 09, 2021

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

Download (17)I am pleased to have discovered that new issue of the American Journal of Bioethics has a lead article and a host of responsive commentaries on the modern state of debate over the war on drugs.  Here are links to all the great looking content:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

April 9, 2021 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Recommended reading | Permalink | Comments (0)

Tuesday, April 06, 2021

Just a week's worth of good reads from The Appeal

Just about every week, The Appeal has too much great new criminal justice content for me to keep up with. So, as I often like to do, I will try to make up for limited time with a round-up of links that here merely highlight some of this notable recent content:

By Elizabeth Weill-Greenberg, "Unless Biden Acts, Thousands Could Go Back To Federal Prison: A Department Of Justice Memo From January Could Have A Devastating Effect On Many Federal Prisoners Who Have Been Released On Home Confinement."

By Veronica Riccobene, "Cuomo Concedes On Two Big Wins For Criminal Justice Reform: The Embattled New York Governor, Who Advocates Describe As A Longtime Impediment To Reform, Signed Bills To Legalize Marijuana And Considerably Restrict Solitary Confinement In The State."

By Molly Greene, "States Should Abolish “Felony Murder” Laws: A Person Who Didn’t Commit Murder Shouldn’t Be Charged With It—But Felony Murder Laws Allow Prosecutors To Do Just That. States Should Repeal These Draconian And Unjust Laws."

By Elizabeth Weill-Greenberg, "D.A.s Are Asking Biden To End The Death Penalty. But Some Are Still Wielding It Themselves: Prosecutors Who Have Championed Criminal Justice Reforms Are Still Seeking Death Sentences, Opposing Appeals, And, In Some Cases, Have Even Petitioned For Execution Dates."

April 6, 2021 in Recommended reading, Who Sentences | Permalink | Comments (0)

Wednesday, March 31, 2021

Rounding up some (not-qute) mid-week reads

I have seen a lot of blog-worthy stories in recent days, not all of which are from this week, but all of which are worth checking out:

From CNN, "Baltimore will no longer prosecute drug possession, prostitution and other low-level offenses"

From The Hill, "Biden urges leniency for harsh crack sentences fueled by his crime bill"

From NBC News, "Texas woman sentenced to five years for trying to vote gets new appeal"

From NPR, "When It Comes To Email, Some Prisoners Say Attorney-Client Privilege Has Been Erased"

From Reason, "They Served Their Sentences. Now They Want To Know When They Can Go Home. Programs that keep sex offenders indefinitely confined face new challenges."

From USA Today, "Orrin Hatch: Resolving hardships for children, families key to criminal justice reform"

March 31, 2021 in Recommended reading | Permalink | Comments (1)

Saturday, March 27, 2021

Great coverage of recent "second chance" reforms and scholarship at CCRC

Regular readers are used to my regular reminders to regularly check out work over at the Collateral Consequences Resource Center.  Doing so recently brings up a number of posts over the last month or so covering recent "second chance" reforms and scholarship:

March 27, 2021 in Collateral consequences, Criminal Sentences Alternatives, Recommended reading, Reentry and community supervision | Permalink | Comments (1)

Friday, March 26, 2021

"The New York State Trial Penalty: The Constitutional Right to Trial Under Attack"

NYS_Trial_PenaltyThe title of this post is the title of this big new report released today by NYSACDL and NACDL which, according to this press release, is "the first-ever report on the decades-long impact of the trial penalty in New York State."  Here is some background and an overview from the press release:

Over the past three decades, the proportion of criminal cases that progress to trial in New York state has steadily declined. As of 2019, 96% of felony convictions and 99% of misdemeanor convictions in New York State were the result of guilty pleas — a troubling phenomenon that severely weakens the integrity of the justice system by circumventing juries. One of the most significant contributing factors behind this trend is the trial penalty, or the empirically greater sentence a criminal defendant receives after trial compared to what prosecutors offer in a pretrial guilty plea. The coercive impact of the trial penalty induces individuals to surrender a panoply of valuable rights under pain of far greater punishment, and it has been shown to induce innocent accused persons to plead guilty.

To better understand the scope of the trial penalty and its impact in New York, NYSACDL and NACDL conducted a survey of criminal justice practitioners across the state. More than three hundred criminal defense attorneys responded and shared how they and their clients experienced the trial penalty firsthand. NYSACDL and NACDL also conducted a statistical analysis of criminal case dispositions, including a sample of 79 cases from Manhattan criminal defense organizations with plea and conviction data to investigate the prevalence and impact of the trial penalty in the borough.

Key findings from the resulting report include:

  • 94% of surveyed criminal justice practitioners agreed that the trial penalty plays a role in criminal practice in their county. Data analysis supported practitioners’ insights — in 66% of cases sampled, defendants experienced a trial penalty.
  • The trial penalty in New York manifests in numerous ways, including by limiting transparency and removing a critical check on law enforcement overreach and abuse.
  • The trial penalty is driven by a broad range of different factors — including aggressive charging, judicial pressure to plead guilty, and the prospect of severe criminal penalties, sentencing enhancements, and mandatory minimums — and therefore requires a broad range of solutions to overcome.

The report outlines 15 policy recommendations, which can be summarized in three overarching categories:

  1. Reducing defendants’ exposure to severe and disproportionate sentences: Eliminate mandatory minimums; reduce the kinds of conduct subject to criminal penalty; and provide second-look statutes, compassionate release legislation, and an expanded clemency process that ensures sentences remain proportionate while offering safety valves for older and sicker defendants or those with other extraordinary circumstances, including extraordinary rehabilitation.
  2. Protecting defendants who exercise their rights: Prevent judges and prosecutors from penalizing defendants with longer sentences solely based on their decision to go to trial or challenge the government’s case through pretrial motion practice; and prohibit conditioning pleas on the waiver of constitutional or statutory rights, like the right to appeal, and ensure that criminal defense organizations have the resources to provide a zealous defense.
  3. Using data to drive reform: Do not evaluate judges or condition judicial assignments on pretrial disposition quotas, hearing and trial volumes, or other disposition rates; and collect data on plea offers and sentencing dispositions to explore further how the trial penalty manifests in New York state.

March 26, 2021 in Procedure and Proof at Sentencing, Recommended reading, Who Sentences | Permalink | Comments (5)

Wednesday, March 24, 2021

"What is Public Safety?"

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

For literally hundreds of years, political leaders and thinkers have deemed public safety the first duty of government.  But they have defined public safety largely in terms of the “protection” function — protecting individuals from violent harm to person or property, from third parties, but also from natural elements.  As the first duty, the protection function is privileged.  Witness today how we valorize police and other first responders, defer to their decisions without sufficient scrutiny, and even immunize their mistakes.

Yet, is protection really all there is to public safety?  For most people, being safe depends on much more: food, clean water and air, housing, a basic income and the means to obtain it, meaning education and a job.  It might include health care, health insurance to obtain it, or the freedom from discrimination.

This Article argues that if individual safety includes some or all of these additional elements, then public safety — the government’s obligation to ensure people are safe — should be understood far more capaciously than the protection function.  At its analytic core, it shows that there is nothing particularly different about the protection function that justifies treating it as government’s first job, while the other vital functions of government are relegated to second-class status.  And it explores the many reasons that despite the fact that protection is not special, we nonetheless neglect all the other elements of individual safety.

Today, many argue that funding needs to be reallocated from policing to the other needs that challenged communities face.  This Article provides a theoretical basis for those claims, establishing that we over-privilege the protection function, and under-support much else government should be doing.  It demonstrates the very tangible harms people face because we definite public safety narrowly.  On the one hand, people starve, go without shelter, die from air and water that is not clean, from the travails of living in poverty, and from the lack of health care.  On the other hand, people are harmed at the hands of the police, because we do not scrutinize the protection function sufficiently to change this, we need to think more broadly about what safety — and public safety — means.

March 24, 2021 in Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (1)

Sunday, March 21, 2021

New law journal issue covers "Progressive Prosecution: Perspectives from Activism, Academia, and Practice"

I recently saw that the new "Special Issue" of the Stanford Journal of Civil Rights & Civil Liberties is dedicated to the topic of "Progressive Prosecution: Perspectives from Activism, Academia, and Practice." Here are links to the four great-looking article is the issue:

Neighborhood Accountability Boards: A Case Study on the Promise and Limitations of Prosecutor-Led Reform by Kate Brubacher Murphy

Beyond Reform: Four Virtues of a Transformational Prosecutor by Taylor Pendergrass and Somil Trivedi

Beyond Non-Violent Offenses: Criminal Justice Reform and Intimate Partner Violence in the Age of Progressive Prosecution by Margo Lindauer and Emily Postman

A Public Defender Definition of Progressive Prosecution by Avanindar Singh and Sajid Khan

March 21, 2021 in Recommended reading, Who Sentences | Permalink | Comments (0)

Friday, March 12, 2021

Wonderful new Federal Sentencing Reporter issue explores "Weinstein on Sentencing"

M_fsr.2021.33.3.coverI am so very pleased to report on the publication of the latest issue of the Federal Sentening Reporter.  This issue is titled "Weinstein on Sentencing" and it celebrates the many contributions to federal sentencing law, policy and practice by legendary EDNY Judge Jack Weinstein.

FSR was quite fortunate to get two of Judge Weinstein's former clerks, Carolin Guentert and Ryan Gerber, to organize this great new issue.  They did a wonderful job gathering an array of perspectives in an issue that includes a considerable number of original articles under the heading "Celebrating Judge Weinstein" as well as excerpts from Judge Weinstein's past opinions and articles under the heading "Weinstein In His Own Words." 

I highly encourage everyone to check out this full FSR issue, and here is a list of the original articles:

Guest Editors’ Observations: Judge Weinstein's Contributions to Sentencing Law by Carolin E. Guentert & Ryan H. Gerber

Weinstein on Sentencing by Kate Stith

Jack B. Weinstein Up Close by John Gleeson

Jack Weinstein: Reimagining the Role of the District Court Judge by Jessica A. Roth

Serving a Rehabilitative Goal: Assessing Judge Jack B. Weinstein’s Supervised Release Jurisprudence by Christine S. Scott-Hayward

A Judge’s Attempt at Sentencing Consistency After Booker: Judge Jack B. Weinstein’s Guidelines for Sentencing by Carolin E. Guentert & Ryan H. Gerber

Hanging Up the Robe by Thomas Ward Frampton

Sentencing with Love, Not Hate by Deirdre D. von Dornum

March 12, 2021 in Federal Sentencing Guidelines, Recommended reading, Who Sentences | Permalink | Comments (1)

Tuesday, March 09, 2021

"Procedure's Racism"

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

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

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

March 9, 2021 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Recommended reading | Permalink | Comments (0)

Sunday, March 07, 2021

"Natural Punishment"

The title of this post is the title of this interesting new article authored by Raff Donelson now available via SSRN. Here is its abstract:

A man, carrying a gun in his waistband, robs a food vendor. In making his escape, the gun discharges, critically injuring the robber. About such instances, it is common to think, “he got what he deserved.”  This Article seeks to explore cases like that, cases of “natural punishment.”  Natural punishment occurs when a wrongdoer faces serious harm that results from her wrongdoing and not from anyone seeking retribution against her.  The Article proposes that US courts follow their peers and recognize natural punishment as genuine punishment for legal, specifically constitutional, purposes.  Were US courts to do so, they would need to reduce the amount of punishment they would otherwise bestow on wrongdoers upon conviction, if a natural punishment has occurred or foreseeably will occur.  A handful of foreign jurisdictions already accept something like this Article’s proposal, but natural punishment has no formal legal recognition in the United States.  The goal of this Article is twofold: first, it offers a rigorous and defensible definition of natural punishment, by distinguishing it from nearby notions and dispelling any association with supernatural ideas, and, second, it demonstrates that recognizing natural punishment as genuine punishment will not much disturb existing American legal institutions and understandings.

As an added bonus, the concept of natural punishment can be employed to solve a longstanding problem in criminal law theory, the Mystery of Credit for Time Served.  The Mystery surrounds the common practice of giving prisoners credit toward their prison sentences for their time served in jail awaiting trial.  The Mystery poses a dilemma about whether the detention time was punishment: If it was punishment, then the detainee was punished before trial in violation of Due Process; however, if the time was not punishment, there is no reason to discount the prison sentence.  Surprisingly, seeing the time in detention as an instance of natural punishment resolves the Mystery.

March 7, 2021 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (0)

Rounding up lots of good recent criminal justice reads

Another full work week with lots of activity has meant needing the weekend to catch up on interesting reading (and blogging) on a variety of criminal justice fronts.  So, here is a quick round up of some recent pieces catching my eye:

From The Crime Report, "Why It’s Time to Abandon Drug Courts" by Miriam Krinsky and Leo Beletsky

From the Georgetown Public Policy Review, "Public Opinion on the Death Penalty: Where Republicans and Democrats Agree (and Disagree)" by Emma Farber

From The Hill, "Politics in the Department of Justice can be a good thing" by Shon Hopwood

From The Hill, "Biden's justice reform should influence prosecutor appointments" by Russ Feingold and Amy Fettig

From The Hill, "Why do we still punish crack and powder cocaine offenses differently?" by Kevin Ring and Heather Rice-Minus

From My Northwest.com, "‘Worst of both worlds’: No easy fix for WA Supreme Court decision legalizing drug possession" by Hanna Scott

From the New York Times, "The ‘Hidden Punishment’ of Prison Food" by Patricia Leigh Brown

March 7, 2021 in Recommended reading | Permalink | Comments (0)

Saturday, February 27, 2021

Lots of great new reads from various parts of The Appeal

There is so much important and impressive content at The Appeal, I know I often miss some great content within the site's many sections. But I figure I can use this space to make sure others do not miss a few pieces from different part of the site this past week that may be of special interest to sentencing fans:

From The Lab

From The Point

February 27, 2021 in Recommended reading, Who Sentences | Permalink | Comments (0)

Tuesday, February 23, 2021

Lots of good criminal justice reads from CCRC, Law360, and Reason

A full in-box and some surfing produced this fulsome reading list from a few sources chock full of pieces I recommend checking out:

From CCRC, "After a haul of record relief reforms in 2020, more states launch clean slate campaigns"

From CCRC, "Study: Texas diversion provides dramatic benefits for people facing their first felony

From CCRC, "A Plan to Restructure (and Revive) Pardoning After Trump"

From Law360, "Goodwin Wins Freedom For Cannabis Offender Serving Life"

From Law360, "Biden's Science Adviser Pick Could Advance Justice Reforms"

From Law360, "Public Defenders Speak Out About The Tolls Of COVID-19"

From Reason, "Civil Commitment of Sex Offenders Pretends Prisoners Are Patients"

From Reason, "Biden Says Drug Users Shouldn't Be Jailed but Won't Do Anything To Stop It"

From Reason, "Trump's Messy Pardon Spree Left Too Many Behind. Biden Must Do Better."

February 23, 2021 in Recommended reading | Permalink | Comments (0)

Monday, February 22, 2021

"Teaching Drugs: Incorporating Drug Policy into Law School Curriculum (2020-21 Curriculum Survey Update)"

The title of this post is the title of this great new updated report authored by multiple researchers with The Ohio State University's Drug Enforcement and Policy Center (DEPC) now available via SSRN.  This document is an updated version of a great prior report with the same title, and both reports are the product of the collective great work of many DEPC folks with input from many legal academics and staff. Here is the abstract for this latest version of this report:

Despite the significant impact of laws and policies surrounding controlled substances, few classes in the typical law school curriculum focus on either basic legal doctrines or broader scholarship in this field.  This gap in law school curricula is especially problematic given the shifts in the landscapes of legalized cannabis and hemp, as well as the range of legal and policy responses to the recent opioid crisis.  To continue our efforts to better understand how law schools currently approach these issues and to identify how drug policy and law could be better incorporated into law school curricula, we conducted a third survey of all accredited law schools in the U.S.  The 2020-21 survey followed two previous annual surveys and a workshop of legal scholars who work in this space.  The surveys and 2019 workshop were designed to identify law school courses currently taught and the primary obstacles to teaching this subject matter.  The results show that the vast majority of law schools do not teach courses touching on drugs or the evolving legal structures around cannabis, and this is true even for law schools located in states with legalized cannabis markets.

February 22, 2021 in Drug Offense Sentencing, Recommended reading | Permalink | Comments (0)

Saturday, February 20, 2021

Catching up on a week of criminal justice reads

A busy work week with lots of student conferences, Zoom meetings aplenty, and a great OSJCL symposium got me behind on interesting reading (and blogging) on a variety of criminal justice fronts.  So, catching up, here are some recent pieces catching my eye:

From The Atlantic, "Anissa Jordan Took Part in a Robbery. She Went to Prison for Murder. The legal doctrine that allows people to be prosecuted for murder even if they didn’t kill anyone has fallen out of favor across the globe. In America, it remains common."

From Courthouse News Service, "House Examines Supreme Court Shadow Docket"

From Fox17, "Michigan's recidivism rate continues to decline, MDOC says"

From the Los Angeles Times, "Years ago, I applauded the 40-year sentence for a shooter at a party. Now I’m rethinking things"

From National Geographic(!), "Sentenced to death, but innocent: These are stories of justice gone wrong. Since 1973, more than 8,700 people in the U.S. have been sent to death row. At least 182 weren’t guilty—their lives upended by a system that nearly killed them."

From the New York Review of Books, "America’s Hidden Gulag: The nationwide federal detention of immigrants in county jails perpetuates a profit-driven system of mass incarceration."

From NBC News, "Did Illinois get bail reform right? Criminal justice advocates are optimistic: 'We live in a system today where we use money as the sole determining factor in determining whether somebody is going to be in jail or out of jail,' one justice advocate said."

From Reuters, "Biden's attorney general pick Garland to prioritize civil rights, combating domestic terror"

February 20, 2021 in Recommended reading | Permalink | Comments (0)

Wednesday, February 10, 2021

Mid-week and mid-winter perspectives on lots of hot criminal justice reform stories

February has been cold and snowy in Ohio, but there are still lots of hot criminal justice reform stories cooking in the middle of winter all over the USA.  So, mid-week and mid-winter, here is a round-up of just some of the reform stories and commentaries catching my eye:

From The Appeal, "Trump Turned The Justice System Into a Black Box.  Biden Could Fix It."

From Bloomberg Law, "Law Firms and Nonprofits Must Work Together for Criminal Justice Reform"

From The Marshall Project, "What 120 Executions Tell Us About Criminal Justice in America"

From The Nation, "How Progressive District Attorneys Are Leading the Charge to Fix Our Broken Justice System"

From Newsweek, "The Biden Administration Can Act on Criminal Justice Reform Now"

From Real Clear Policy, "Washington Must Atone for its Legacy of Mass Incarceration"

From Reason.com, "Civil Commitment of Sex Offenders Pretends Prisoners Are Patients"

From Time, "Why It's So Significant That Virginia Looks Set To Abolish the Death Penalty"

February 10, 2021 in Recommended reading | Permalink | Comments (1)

Sunday, February 07, 2021

"Can Prosecutors Help To End Mass Incarceration?"

The title of this post is the title of this article/book review authored Rachel Barkow now available via SSRN.  Here is its abstract:

Emily Bazelon argues in her excellent book, Charged, that “[t]he movement to elect a new kind of prosecutor is the most promising means of reform . . . on the political landscape.”  While I share Bazelon’s enthusiasm for prosecutors committed to using empirical evidence to guide their policymaking, instead of reflexively supporting the most punitive policies because those measures traditionally played well with voters, I am less optimistic this new breed of so-called progressive prosecutors will make a significant dent in mass incarceration.  In this review, I explain why. 

Bazelon is right that prosecutors have enormous discretion to decide how criminal law will be applied, but the deference they have received in the past corresponded to their decisions to use that discretion to seek severe punishments.  In this review, I document the resistance to prosecutors seeking to decarcerate.  The forces pushing back come from outside and inside the office.  We have seen opposition efforts from police departments, judges, other prosecutors, elected officials, the media, and line prosecutors within these offices. For this movement to be truly transformative, these prosecutors will need to do more than seek to exercise the vast discretion of their offices more wisely than their predecessors.  They will need spearhead institutional changes, including changes that limit the leverage prosecutors have over defendants. This review provides a summary of what some of those checks should look like. In addition to providing a list of needed reforms, this can serve as a checklist to evaluate prosecutors who claim to be progressive.  If they are not putting their full support behind these institutional changes, one should question just how progressive they are.

But even if prosecutors pursue all these changes, we should recognize that they cannot dismantle mass incarceration their own.  Real change is going to require shifts in police departments, the judiciary, the legislature, and governor’s offices.  Most fundamentally, transforming punishment in America will require the public to change its understanding about what policies are most effective for crime control.  Prosecutors have long lobbied for the get-tough approach as the way to address crime, so this new breed of prosecutor needs to take the lead in explaining why punishment is not the answer to deeper social problems that lead to crime and violence.

February 7, 2021 in Procedure and Proof at Sentencing, Recommended reading, Who Sentences | Permalink | Comments (2)

Thursday, February 04, 2021

"After the Sentence, More Consequences: A National Report of Barriers to Work"

The title of this post is the title of this notable new report authored by Chidi Umez and Joshua Gaines of the Council for State Government Justice Center.  Here is its introduction:

The negative effects of a conviction rarely end when a person has completed their criminal sentence.  A complex web of local, state, and federal statutes and regulations—known as collateral consequences of conviction — can make it all but impossible for some people with criminal records to truly rebuild their lives.  While these consequences can affect everything from housing to public benefit eligibility, no area is more impacted than the ability to find and retain meaningful employment.  Some of these barriers to work may be responsive to legitimate public safety concerns, but many others pose unnecessary barriers to employment opportunities that are critical in reducing recidivism and supporting the long-term success of people in the justice system.

In this report, The Council of State Governments (CSG) Justice Center presents a national overview of the scope, features, and operation of the employment-related collateral consequences imposed by state and federal law.  The data were gathered from the National Inventory of Collateral Consequences of Conviction (NICCC), a searchable online database that catalogs these provisions across the country.  This analysis also provides a blueprint for policymakers seeking to mitigate the impact of these increasingly significant barriers to work.

February 4, 2021 in Collateral consequences, Recommended reading | Permalink | Comments (0)

Thursday, January 28, 2021

"The Stress of Injustice: Public Defenders and the Frontline of American Inequality"

The title of this post is the title of this notable new paper now available via SSRN and authored by Valerio Baćak, Sarah Lageson and Kathleen Powell.  Here is its abstract:

Fairness and due process in the criminal justice system are all but unattainable without effective legal representation of indigent defendants, yet we know little about attorneys who do this critical work — public defenders.  Using semi-structured interviews, this study investigated occupational stress in a sample of 87 public defenders across the United States. We show how the intense and varied chronic stressors experienced at work originate in what we define as the stress of injustice: the social and psychological demands of working in a punitive system with laws and practices that target and punish those who are the most disadvantaged.  Our findings are centered around three shifts in American criminal justice that manifest in the stress of injustice: penal excess, divestment in indigent defense, and the criminalization of mental illness.  Working within these structural constraints makes public defenders highly vulnerable to chronic stress and can have profound implications for their ability to safeguard the rights of poor defendants.

January 28, 2021 in Recommended reading, Who Sentences | Permalink | Comments (0)

Guest post: "Criminal Justice Scholarship and Reform"

6a00d83451574769e201b7c9134b4d970b-320wiI am very pleased to have the opportunity to publish this guest post from Michael Serota, who is a Visiting Assistant Professor at the Sandra Day O’Connor College of Law, an Associate Deputy Director of the Academy for Justice, and the Director of the Criminal Justice Reform Lab.  I was lucky enough to be a small part in a big project Michael has just completed, and so it is especially exciting to provide this platform for highlighting this work: 

Can scholarship improve criminal justice decisions?  That question drives Reforming Arizona Criminal Justice (RACJ), a collaborative project between the Academy for Justice and the Arizona State Law JournalRACJ is a special law review issue comprised of a dozen articles on Arizona criminal justice policy written by an interdisciplinary group of scholars (including SL&P’s own Doug Berman).  Each article offers an intimate look at an area of Arizona criminal law, provides an overview of relevant academic research, and proposes concrete recommendations for reform.  Together, the RACJ articles cover topics across all major stages of the criminal process, with an eye toward the most pressing and salient issues in Arizona.  Issues addressed by RACJ include: bail and pretrial detention, marijuana reform, expungement, sentencing reform, juvenile justice, forensic evidence, treatment of sex offenders, the policing of homelessness, public safety, private prisons, and prison oversight.

What’s unique about RACJ is the organizing principle driving the project.  We invited a diverse group of scholars from across the nation to focus their attention on the criminal law and policy issues in a single jurisdiction, and tasked them with offering targeted recommendations and specific policy guidance sensitive to legal and geographic context.  The goal is not only to persuade the government decisionmakers in that jurisdiction to move forward with reforms but also to offer them a clear sense of how to do so. 

I think of scholarship, whether in law or the social sciences, as existing on a spectrum of actionability, with the most general and abstract work on one end, and the most contextual and concrete on the other.  Valuable scholarship exists at all points along the spectrum.  That said, it seemed worthwhile, both intellectually and practically, to develop a collection of articles whose organizing principle was to push as far toward the concrete end of the spectrum as possible, with the hopes of seeing what a thoroughly actionable law review issue might look like. 

Criminal justice needs this kind of push because government decisions in this area are rarely made in the right way—that is, rationally, deliberately, and informed by expertise.    Instead of a careful weighing of costs and benefits, we’ve too often witnessed a pathological process in which all forms of expertise—and scholarly expertise in particular—have been marginalized.  (To take just one example: for decades, legislators have ratcheted punishments upward despite an academic consensus that marginal increases in sentencing severity are an ineffective way to promote public safety.)  And the consequences have been horrifying: mass imprisonment concentrated on our most vulnerable populations, and racial disparities that defy belief. 

Thankfully, we’re undergoing a societal reckoning during which increasing numbers of government officials seem interested in replacing this afactual, tough-on-crime decision-making calculus with something smarter.  But making smarter decisions requires better information, and criminal justice scholarship should be a critical part of that.  That said, hurdles to entry may put topically relevant academic work out of reach.  Aside from the obvious challenges (length, jargon, etc.), criminal justice scholarship typically offers conclusions pitched in the most general and universal terms, while focusing on the conceptual “U.S. criminal justice system,” or the very real but very distinctive “federal criminal justice system.”  In contrast, it is our many individual state and local criminal justice systems that brought us mass incarceration.  So it will be the distinct policy decisions made by the government actors that populate these systems that will need to lead us out of it.  Hopefully, the production of rigorous yet accessible scholarship, sensitive to the on-the-ground realities in these states and localities and filled with concrete recommendations, will help promote better outcomes.

One would be hard-pressed to find a better place to attempt this kind of project than Arizona.  In a nation that leads the world in incarceration, Arizona has the country’s fifth highest imprisonment rate.  Over the past four decades, prison populations throughout the United States expanded by 400%—but in Arizona, they exploded by around 1200%.  And most of this growth occurred while crime went down in the state.  What we’re left with is a prison population of more than 40,000 Arizonans.  And the situation is even worse than it seems because a disproportionate number of those trapped in the Arizona criminal justice system are also among the most vulnerable: the poor, the underserved, and minorities.  And, as the collection of RACJ articles reveals, Arizona appears to be more resistant to criminal justice reform efforts than other jurisdictions of similar size, resources, and political orientation.

So why, then, might one think that accessible, targeted scholarship could actually improve criminal justice decision-making—whether in Arizona or elsewhere?  Let me end with a couple of reasons for optimism.  Prior to entering academia, I spent six years working on criminal justice reform for the District of Columbia’s local government.  Time and again during this period, I heard expressions of interest in, but lamentations about the absence of, actionable scholarship.  Public servants who wake up every day thinking about how to improve a particular area of policy are, in my experience, inherently interested in what others with relevant expertise have to say about it.  Their question is simply this:  Are those experts speaking our language, and is what they’re saying sufficiently attuned to the diversity of factors bearing on the decisions I have to make?  

I also believe that, in Arizona, there is particular interest in hearing from experts who are attuned in this way.  Prior to undertaking this project, in the fall of 2019, I met with a wide range of Arizona criminal justice stakeholders to learn about the most pressing policy issues facing the state.  Over the course of these discussions, it became clear that there is a marked desire for research, but that written policy analyses of criminal justice issues are few and far between.  All too often, bills are proposed (and enacted) in Arizona without any meaningful written work product to support them.  At the same time, criminal justice debates in Arizona are more frequently centered around claims about evidence and data, alongside an omnipresent sense that Arizona’s policy challenges are unique in ways that generalized research might not be able to capture.  So, hopefully, a collection of evidence-driven, Arizona-focused scholarship will be a welcome addition to the criminal justice reform efforts happening around the state.

For those interested, here’s a list of the articles and participants:

The articles, along with executive summaries and other project-related multimedia, can be found at the Reforming Arizona Criminal Justice site.

January 28, 2021 in Recommended reading, Who Sentences | Permalink | Comments (0)

Monday, January 18, 2021

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

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

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

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

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

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

Links to some prior MLK Day posts:

January 18, 2021 in Race, Class, and Gender, Recommended reading | Permalink | Comments (1)

Saturday, November 28, 2020

In praise of Judge Stephanos Bibas ... for his copious sentencing scholarship

I could not resist blogging today about the latest jurist to be thrust into the national spotlight by the Trump campaign's quixotic quest to challenge election outcomes despite having "neither" "specific allegations" or "proof."   The words in quotes in that last sentence come from the first paragraph in this Third Circuit panel opinion authored by Judge Stephanos Bibas, whose name should be familiar to many sentencing fans.  Before being appointed to the Third Circuit by Prez Trump, Judge Bibas had been Professor Bibas for nearly two decades, and he wrote thoughtfully and provocatively on a range of criminal justice and sentencing topics. 

I have long had a particular affinity for Prof Bibas not only because of his long history as a sentencing scholar, but also because we worked together on a Supreme Court case in which he was an appointed amicus, and we co-authored one of my favorite articles about Blakely and Booker jurisprudence, Making Sentencing Sensible.  More than a decade ago, Judge Bibas and I also co-authored an essay about capital sentencing, Engaging Capital Emotions, that also served as a basis for a short book entry under the title The Heart Has its Value: The Death Penalty's Justifiable Persistence.

Long-time blog readers may recall that Judge Bibas did a stint of guest-blogging in this space in conjunction with the release of his 2012 book, The Machinery of Criminal Justice.  All of his posts are linked under the category tab, Guest blogging by Professor Stephanos Bibas, and his book and postings are still quite timely.  So, too, are so many of his law review articles about sentencing and criminal procedure.  Drawing from this SSRN listing of more than 50 pieces authored by Judge Bibas, I will link to a half-dozen classics going back two decades that are especially worthy of a (re-)read by anyone in a Bibas state of mind this weekend:

November 28, 2020 in Recommended reading | Permalink | Comments (1)

Wednesday, November 18, 2020

UC Law Review Online publishes symposium on "COVID-19 and Criminal Justice"

I was intribued to see this new University of Chicago Law Review Online symposium exploring the COVID pandemic's impact criminal justice.  Here are all the great-looking pieces:

Valena E. Beety & Brandon L. Garrett, COVID-19 and Criminal Justice (series introduction)

Sharon Dolovich, Mass Incarceration, Meet COVID-19

Maybell Romero, Law Enforcement as Disease Vector

Valena E. Beety, Pre-Trial Dismissal in the Interest of Justice: A Response to COVID-19 and Protest Arrests

Deniz Ariturk, William E. Crozier & Brandon L. Garrett, Virtual Criminal Courts

Pamela R. Metzger & Gregory J. Guggenmos, COVID-19 and the Ruralization of U.S. Criminal Court Systems

Barry Friedman & Robin Tholin, Policing the Pandemic

Jennifer D. Oliva, Policing Opioid Use Disorder in a Pandemic

November 18, 2020 in Impact of the coronavirus on criminal justice, Recommended reading | Permalink | Comments (0)

Wednesday, November 11, 2020

Harvard Law Review SCOTUS issue covers the handful of notable criminal justice rulings from last Term

As hard-core law nerds know, the November issue of the Harvard Law Review is always devoted to the Supreme Court's prior Term work.  And as long-time readers know, in years past I have sometimes been disappointed when the November HLR SCOTUS issue does not give considerable attention to the Court's considerable criminal justice work. 

But, as noted in this post from last year, the 2019 HLR SCOTUS issue provided a sign of the modern criminal justice times with its Foreword and a lead commentary focused on criminal justice issues.  The November 2020 issue of the Harvard Law Review, which is available at this link, has its lead pieces understandably focused on other topics this year, but it remains heartening to see that seemingly all the noteworthy criminal cases of OT 2019 SCOTUS are covered in case comments in this issue: 

November 11, 2020 in Recommended reading, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, November 01, 2020

Weekend reading for a bit of reform light amidst darker times

Turning the clocks back an hour makes November darker times, and watching the news these days is not often a source of light. But, even with so much election uncertainty, I am feeling reasonably certain that there will be continued momentum for at least some forms on criminal justice reform in the weeks and months ahead. These recent commentaries and stories contribute to my cautious optimism:

From Gabriel J. Chin and David Schlussel, "Federal Certificate Offers New Hope for Americans in ‘Internal Exile’"

From Holly Harris, "America needs the second step toward criminal justice reforms"

From NPR, "Jason Flom, The Music Executive With An Ear For Injustice"

From Arthur Rizer and Bruce Western, "'Public Safety': It Doesn’t Mean What You Think It Does"

From Vincent M. Southerland, "Good Governance Paper No. 19: The Criminal Legal System — Toward a Paradigm Shift"

November 1, 2020 in Recommended reading | Permalink | Comments (0)

Friday, October 23, 2020

REMINDER Call for Papers: "Understanding Drug Sentencing and its Contributions to Mass Punishment"

6a00d83451574769e2026bde959014200c-320wiI said before that I was going to regularly remind folks of this recent call for papers relating to an exciting event I am excited to be involved in helping to plan, "Understanding Drug Sentencing and its Contributions to Mass Punishment."  So, here again is the full call, which is also available as a full pdf document at this link:

INTRODUCTION
Discussion of the “war on drugs” frequently fails to examine precisely how drug offenders are sentenced — and how they should be.  Drug sentencing practices are implicated in many fundamental criminal justice issues and concerns.  Research suggests incarcerating people for drug offenses has little impact on substance use rates or on crime rates more generally.  And, despite reports of comparable use rates, people of color are far more likely to be arrested and incarcerated for drug-related offenses than white counterparts.  Mandatory minimum sentencing statutes are applied commonly, but inconsistently, in drug cases and for persons with a criminal history that involves drug offenses.  And while states have created specialty courts to handle the cases of low-level drug offenders, the efficacy and appropriateness of the “drug court movement” has long been subject to debate.

Distinct state and federal realities complicate our understanding of the relationship between the drug war and punishment.  Nearly all federal drug defendants get sent to prison and nearly 50% of the federal prison population is comprised of drug offenders; relatively few state drug offenders are sent to prison and less than 20% of state prisoners are serving time on drug charges.  But data on arrests, jail populations, and community supervision highlight the continued, significant impact drug cases still have on state and local justice systems.  The role of drug criminalization and sentencing contributes to mass incarceration, yet mass punishment can look quite different depending on the criminal justice system(s) and the drugs.


ABOUT THE CALL
These issues and others related to drug sentencing will be part of a symposium jointly sponsored by the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law and the Academy for Justice at the Arizona State University Sandra Day O'Connor College of Law.  "Drug Sentencing and its Contributions to Mass Punishment," will take place on June 10–12, 2021, at The Ohio State University Moritz College of Law in Columbus, Ohio. As part of this symposium, we invite scholars to submit papers for inclusion in the workshop scheduled for June 12.  Accepted submissions will be paired with a discussant who will review and provide feedback on the paper during the workshop.  Each paper should reflect on some aspect of drug prosecutions and sentencing in the United States.  Participants should have a draft to discuss and circulate by May 17, 2021.  The papers will be gathered and published in a Spring 2022 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 August 15, 2021.  Final papers may range in length from 5,000 – 20,000 words.

Deadline for submission is November 1, 2020. Please submit a title and an abstract of no more than 300 words to Jana Hrdinová at hrdinova.1@osu.edu. Accepted scholars will be notified by December 1, 2020

October 23, 2020 in Drug Offense Sentencing, Recommended reading, Scope of Imprisonment | Permalink | Comments (0)

Friday, October 09, 2020

Week ending round-up of recent headlines and commentary on criminal justice issues

Busy days on various fronts (and great distractions) has again meant I have lacked the  time blog at length about a number of noteworthy recent news pieces and commentaries.  So I will again seek to make up for limited time with an end-of-week round-up of headlines and links:

October 9, 2020 in Recommended reading | Permalink | Comments (0)

Thursday, October 08, 2020

"Decarceration and Default Mental States"

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

This Essay, presented at “Guilty Minds: A Virtual Conference on Mens Rea and Criminal Justice Reform” at ASU’s Sandra Day O’Connor College of Law, examines the politics of federal mens rea reform legislation.  I argue that current mens rea policy debates reflect an overly narrow vision of criminal justice reform.  Therefore, I suggest an alternative frame through which to view mens rea reform efforts — a frame that resonates with radical structural critiques that have gained ground among activists and academics.

Common arguments for and against mens rea reform reflect a belief that the problem with the criminal system is one of miscalibration: To the reform proponents, criminal law, incarceration, and the institutions of the U.S. criminal system are necessary for dealing with “real criminals,” but overcriminalization, strict liability crimes, and sloppily drafted statutes cause undeserving and “otherwise law-abiding” people to suffer.  To reform opponents, the criminal system might be flawed (see, e.g., the War on Drugs, racial disparities, police violence, etc.), but that doesn’t mean it is illegitimate or without important uses.  The brutalities of the system’s treatment of marginalized people don’t indicate an irredeemable system; rather, prosecutors could right the balance by shifting their attention to the wealthy and “white collar” offenders, and lawmakers and judges could grease the wheels of these prosecutions by reducing the burden on prosecutors to prove mens rea elements.  Arguments from opponents and proponents offer little to commentators who see the problems with the criminal system as deeper or more intractable — problems of structure, rather than scope.

Ultimately, therefore, I offer a different frame for mens rea reform and for understanding the stakes of the debate that might resonate with more radical critics.  I suggest that mens rea reform can be analogized to the rule of lenity and the libertarian or anti-statist aspects of the Bill of Rights — these rules are not solely focused on sorting the guilty and the innocent; rather, I suggest, they can be viewed as “anti-criminalization” rules, directives to put a thumb on the scale in favor of defendants and against the state, state violence, and criminal punishment.  Framed in this way, I argue that mens rea reform should be appealing to commentators concerned about mass incarceration, state violence, and the sweeping reach of criminal law and its enforcement.  Perhaps more provocatively, I also argue that mens rea reform could be understood as consistent with more radical calls for abolition or dismantling of the carceral state.

October 8, 2020 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (0)

Sunday, October 04, 2020

Rounding up a few recent headlines and commentary of note for Sunday reads

Busy days on various fronts (and expected distractions by other matters in the coming week) has me concerned I will not find time blog at length about a number of recent news pieces and commentaries that seemed noteworthy.  So I will make up for limited time with a weekend round-up, which will link to the pieces and add a quick hit of comment/link/snark:

October 4, 2020 in Recommended reading | Permalink | Comments (2)

Thursday, October 01, 2020

"Explaining the Past and Projecting Future Crime Rates"

The title of this post is the title of this notable new report coming from the Harry Frank Guggenheim Foundation and authored by James Austin, Todd Clear and Richard Rosenfeld.  Here is the relatively short report's abstract:

To date criminologists have a poor record of anticipating future crime rates.  As a result, they are ill-equipped to inform policy makers about the impact of criminal justice reforms on future crime.  In this report, we assess the factors that explain changes in crime during the past three decades.  Our analysis shows that macro-level economic and demographic factors best explain trends in violent and property crime.  Together, those factors outweigh the impact of imprisonment rates on crime.  We also show that it is possible to lower imprisonment rates without causing an increase in crime.  Indeed, several states have done exactly that.  Finally, we present models for projecting future crime rates.  Based on these models, crime is projected to decrease over the next five years.  The next step should be to apply similar analyses to individual states and local jurisdictions to advise policy makers on the implications of their criminal justice reform strategies for public safety.

October 1, 2020 in National and State Crime Data, Recommended reading, Scope of Imprisonment | Permalink | Comments (0)

Friday, September 18, 2020

"In the Shadows: A Review of the Research on Plea Bargaining"

The title of this post is the title of this great new document from the Vera Institute of Justice.  Here is part of the report's introduction:

In whatever form it takes, plea bargaining remains a low-visibility, off-the-record, and informal process that usually occurs in conference rooms and courtroom hallways — or through private telephone calls or e-mails — far away from the prying eyes and ears of open court.  Bargains are usually struck with no witnesses present and made without investigation, testimony, impartial fact-finding, or adherence to the required burden of proof.  Moreover, little to no documentation exists of the bargaining process that takes place between initial charge and a person’s formal admission of guilt in open court, and final plea deals that close out cases are themselves rarely written down or otherwise recorded.  As such, plea deals, and the process that produces them, are largely unreviewable and subject to little public scrutiny.  Thus, despite the high frequency with which plea deals are used, most people — aside from the usual courtroom actors — understand neither the mechanics of plea bargaining nor the reasons so many people decide to plead guilty.

Plea bargaining has, however, become the central focus of a growing, but still small, body of empirical research.  In recent years, mounting concerns about plea bargaining’s role in encouraging the widespread forfeiture of constitutionally guaranteed trial rights and associated procedural protections — and its critical role in fueling mass incarceration — has stimulated further urgency in understanding how the process works.  Indeed, an array of questions regarding its fairness have emerged.  Over the last few decades, prosecutorial leverage in plea negotiations has increased exponentially as changes in substantive law have bolstered criminal penalties and given prosecutors a wider range of choices to use when filing charges (such as mandatory penalties, sentencing enhancements, and more serious yet duplicative crimes already well covered by existing law).  But increased exposure to harsher penalties has not been matched with increased procedural protections for defendants.  Prosecutors’ wide powers in plea bargaining still go largely unchecked, and there are no meaningful oversight mechanisms or procedural safeguards to protect against unfair or coercive practices, raising fears about arbitrariness and inequality.  Given this lack of regulation, concern has also grown over the extent to which innocent people are regularly being induced to plead guilty, as well as plea bargaining’s role in perpetuating racial and ethnic disparities in criminal case outcomes — for example, plea bargaining practices that send more Black people to prison or jail than similarly situated white people.

Plea bargaining’s full impact on the legal system and justice-involved people remains unknown, but empirical research on this little understood yet immensely influential practice has begun to emerge.  In order to provide an accessible summary of existing research to policymakers and the public, the Vera Institute of Justice (Vera) examined a body of empirical studies that has developed around plea bargaining. Although this review is not exhaustive, it provides a picture not only of the current state of scholarship on plea bargaining, but also of the gaps in knowledge that must be filled.

September 18, 2020 in Procedure and Proof at Sentencing, Recommended reading, Who Sentences | Permalink | Comments (3)

Sunday, August 30, 2020

"The Price of Criminal Law Skepticism: Ten Functions of the Criminal Law"

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

A growing trend in philosophical commentary about penal justice is what I loosely call criminal law skepticism.  The scholarship I have in mind does not simply urge caution or a more judicious use of the criminal law to address social problems.  Instead, its thrust is more sweeping and radical; it presents reasons to doubt that the criminal law as presently constituted should continue to exist at all. 

I make no concerted effort to categorize the several varieties or motivations for this trend; their forms and underlying rationales are diverse and frequently humane.  No single argument can refute them all.  Instead, I respond by describing the price that might be incurred if these skeptics were to achieve their objective.  I list ten valuable functions served by the criminal law as it currently exists, several of which are too seldom appreciated in philosophical commentary.  No case for criminal law skepticism is complete unless efforts are made to explain how alternatives to the criminal law can achieve these functions or afford to dispense with them.

August 30, 2020 in Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (1)

Monday, August 24, 2020

"Climate Change and the Criminal Justice System"

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

The past decade has been the warmest decade in history. But while there has been a great deal of attention paid to issues of infrastructure sustainability, less attention has been focused on the impact of climate change on our criminal justice system.  This paper identifies how we can anticipate climate change will affect and create new challenges for law enforcement, prisons, prosecutorial and defense agencies, government offices, and communities.  This article first examines three ways climate change is challenging our criminal justice system — from altering the types of crimes committed, to detrimentally impacting prisons, jails, and other criminal justice institutions, to challenging traditional doctrines of criminal law such as the necessity and duress defenses and causation.  Drawing in part on lessons from the response to the COVID-19 pandemic, this article makes ten recommendations on how such challenges can be met.

August 24, 2020 in Prisons and prisoners, Recommended reading | Permalink | Comments (1)

Thursday, August 06, 2020

"Labeling Violence"

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

In recent years, federal and state-level criminal justice reforms have softened the punitive responses to crime that defined the quarter-century from 1980–2005.  The main beneficiaries of these reforms have been non-violent criminals, who are increasingly eligible for pre- and post-charge diversion, expungement, early release from custody and early discharge from community supervision.  For those convicted of violent offenses, not much has changed: sentences remain long; opportunities for release remain few; and conditions of post-release supervision are tightly enforced, leading to high rates of return to prison.

The justification for a harsh response to violent crime is that such crime inflicts significant harm and represents a dramatic deviation from standards of acceptable behavior. In fact, “violent” behavior — that is, behavior that is intended to cause, or does in fact cause, physical injury to another person — is hardly anomalous.  Across the life-course, and particularly in youth and young adulthood, such behaviors frequently occur among a broad spectrum of the population and rarely lead to criminal conviction. This Article explores why only some behavior is labeled violent, and what implications this fact has for sentencing and correctional management of people convicted of violent crimes, and for the broader management of the criminal justice system.

August 6, 2020 in Offense Characteristics, Recommended reading | Permalink | Comments (1)

Saturday, August 01, 2020

Terrific (though necessarily incomplete) list of great books on American prisons

New York magazine has this great new piece headlined "The Best Books on the American Prison System, According to Experts."  For many reasons, I would be inclined to call this list a "great books" list rather than a "best books" list; there are many awesome texts in this genre not making the list.  For example, I adore The Oxford History of the Prison: The Practice of Punishment in Western Society, though perhaps it did not make the list because it is an edited collection.  And The Decline of the Rehabilitative Ideal: Penal Policy and Social Purpose by Frances Allen was extremely important when authored three decades ago and is arguably even more timely now amidst our persistent and ever-evolving era of mass incarceration.  I am showing my age by flagging these older books, but there are also many more recent texts about that I also think of as "modern classics" in this arena.

These quibbles aside, I am pleased to see New York magazine highlighting more than a dozen terrific books in this article.  Here is some of the text previewing the list that follows:

Along with calling for an end to police brutality, recent protests following the murder of George Floyd have brought attention to another national crisis that disproportionately affects people of color: mass incarceration.  According to the Prison Policy Initiative, 2.3 million people (or 20 percent of the world’s prison population) are incarcerated in the United States, and while Black people make up only 13 percent of the U.S. population, 40 percent of prisoners are Black.  Millions more are on probation or parole, facing restrictions on housing, employment, and, in many states, the right to vote.

Like police violence against people of color, this isn’t a new issue.  Activists and scholars like Angela Davis and Ruth Wilson Gilmore have been arguing for the abolition of prisons for decades. But if you want to further educate yourself, we asked 11 scholars, lawyers, and activists what books they recommend for those seeking a deeper understanding.

Since mass incarceration is entangled with issues of race, gender, sexuality, and economics, we sought out experts with diverse perspectives on the topic who could recommend books addressing the prison system from all angles.  Our panel includes Jeffrey Adler, professor and author of Murder in New Orleans: The Creation of Jim Crow Policing; Paul Butler, law professor and author of Chokehold: Policing Black Men; Robert Chase, professor and author of We Are Not Slaves: State Violence, Coerced Labor, and Prisoners’ Rights in Postwar America; David C. Fathi, director of the ACLU National Prison Project; author and professor Shaun L. Gabbidon, Kali Nicole Gross, professor and co-author of A Black Women’s History of the United States; Sarah Haley, professor and author of No Mercy Here: Gender, Punishment, and the Making of Jim Crow Modernity; Elizabeth Hinton, professor and author of From the War on Poverty to the War on Crime: The Making of Mass Incarceration in America; Jen Manion, professor and author of Liberty’s Prisoners: Carceral Culture in Early America; law professor Jocelyn Simonson; and Caleb Smith, professor and author of The Oracle and the Curse: A Poetics of Justice from the Revolution to the Civil War.

As in all our reading lists, the 14 books below come recommended by at least two of our experts. These titles cover the origins of our prison system, those who have been affected by incarceration, and the growing resistance movement. While we’ve separated the books into categories, it’s important to keep in mind that there are intersections and overlaps between topics. For example, a book about the history of prison in America is inevitably a book about race, while a book about race and prison will include discussions of resistance movements.

August 1, 2020 in Prisons and prisoners, Recommended reading | Permalink | Comments (0)

Sunday, July 26, 2020

A century after his birth, just a few choice quotes to celebrate Marvin Frankel, father of sentencing reform

81p9ffvBF7LA kind reader pointed out for me that exactly 100 years ago today, the late great Marvin Frankel was born.  Though he served in many roles through his career, I think of this historic figure as Judge Frankel because of his service on the US District Court and especially because he was a judge when he wrote his most famous book, Criminal Sentences: Law Without Order.  This book's criticisms of "lawless" sentencing practices played a huge role in the emergence of structured sentencing systems, and Judge Frankel has been frequently and widely described as the "father of sentencing reform."

Though there are many reasons not to love the form of certain reforms (like the federal sentencing guidelines) that Judge Frankel helped engender, there are no reasons not to love Criminal Sentences: Law Without Order.  The book is less than 125 pages, and seemingly every page is full of shrewd insights and rhetorical flourishes.  In addition to being among the most influential books of legal scholarship, Criminal Sentences: Law Without Order is simply a great (and still timely) read.  Though it is hard to put together a fitting tribute to Judge Frankel, it is easy to find quotes from his book to provide a flavor of his contributions a century after his birth. So, a taste:

at page 5: "[T]he almost wholly unchecked and sweeping powers we give to judges in the fashioning of sentences are terrifying and intolerable for a society that professes devotion to the rule of law."

at pages 17-18: "Conditioned in the direction of authoritarianism by his daily life in court, long habituated as a lawyer to the stance of the aggressive contestant, and exercising sentencing powers frequently without practical limits, the trial judge is not discouraged from venting any tendencies toward righteous arrogance. The books and the reliable folklore are filled with the resulting horror stories — of fierce sentences and denunciatory attacks upon defendants."

at page 21: "[S]weeping penalty statutes allow sentences to be 'individualized' not so much in terms of defendants but mainly in terms of the wide spectrums of character, bias, neurosis, and daily vagary encountered among occupants of the trial bench."

at page 39: "The question “Why?” states a primitive and insistent human need. The small child, punished or deprived, demands an explanation. The existence of a rationale may not make the hurt pleasant, or even just. But the absence, or refusal, of reasons is a hallmark of injustice.... The despot is not bound by rules. He need not account for what he does. Criminal sentences, as our judges commonly pronounce them, are in these vital aspects tyrannical."

at page 103: "The arbitrary cruelties perpetrated daily under our existing sentencing practices are not easy to reconcile with the cardinal principles of our Constitution.  The largely unbridled powers of judges and prison officials stir questions under the clauses promising that life and liberty will not be denied except by 'due process of law.'  The crazy quilt of disparities — the wide differences in treatment of defendants whose situations and crimes look similar and whose divergent sentences are unaccounted for — stirs doubts as to whether the guarantee of the 'equal protections of the laws' is being fulfilled."  

Final paragraphs concluding with a call for the creation of a "Commission on Sentencing":

The uses of a commission, if one is created, will warrant volumes of debate and analysis.  For this moment and for this writer, the main thing is to plead for an instrumentality, whatever its name or detailed form, to marshal full-time wisdom and power against the ignorance and the barbarities that characterize sentencing for crimes today....

Lawyers and judges, tending to be human, are not likely to greet with rampant enthusiasm demands for change in their settled ways.... So to any reader who has come to this concluding paragraph — but perhaps somewhat especially to the lay reader — I would urge that you not close the topic along with the book.  The topic has to do with monstrous evils perpetrated daily for all of us, and with our implicit or express acquiescence.  The need for change is clear.  Our justly proud awareness that "we the people" have the power should carry with it a corollary sense of duty.  It is our duty to see that the force of the state, when it is brought to bear through the sentences of our courts, is exerted with the maximum we can muster of rational thought, humanity, and compassion.

July 26, 2020 in Federal Sentencing Guidelines, Recommended reading, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Saturday, July 18, 2020

Washington and Lee Journal of Civil Rights and Social Justice explores federal sentencing realities and reform

The introductory essay I saw on SSRN (and blogged about here) altered me to the fact that the latest issue of the Washington and Lee Journal of Civil Rights and Social Justice has a full set of terrific-looking articles about the modern federal sentencing system.  Here are the titles and links:

Reforming Federal Sentencing: A Call for Equality-Infused Menschlichkeit by Nora V. Demleitner

Federal Sentencing: A Judge’s Personal Sentencing Journey Told Through the Voices of Offenders He Sentenced by Mark W. Bennett

Sentencing Disparities and the Dangerous Perpetuation of Racial Bias by Jelani Jefferson Exum

Article III Adultification of Kids: History, Mystery, and Troubling Implications of Federal Youth Transfers by Mae C. Quinn and Grace R. McLaughlin

Technology’s Influence on Federal Sentencing: Past, Present, and Future by Matthew G. Rowland

Crime and Punishment: Considering Prison Disciplinary Sanctions as Grounds for Departure Under the U.S. Sentencing Guidelines
by Madison Peace

July 18, 2020 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Recommended reading | Permalink | Comments (2)

Thursday, July 09, 2020

Great sentencing pieces in 'New Developments in Public Defense Research" collection in Criminal Justice Policy Review

I just came across this great collection of articles under the title "New Developments in Public Defense Research," which appears in the July 2020, issue of the journal Criminal Justice Policy Review. The volume includes seven original papers and an introduction on a range of topics related to public defenders and public defense.  The whole issue is worth checking out, and sentencing fans might be especially interested in these articles:

Including Assets-Based Mitigation in Sentencing by Elizabeth S. Vartkessian

Abstract:  Mitigation evidence consists of information about an accused person that is typically used to advocate for a less severe sentence.  Such evidence most frequently consists of information related to the crime and personal factors that can be separated into two broad categories: deficits and assets-based mitigation.  This article focuses on the importance of assets-based mitigation in sentencing and evaluates if and how state sentencing procedures contemplate and allow for consideration of such evidence.  A content analysis of available state sentencing procedures reveals that states tend to circumscribe mitigation to factors related to the crime or deficits, but largely neglect to give a vehicle to consider assets-based mitigation, which should play a central role in achieving just outcomes.  This article therefore argues for reform to sentencing laws to better accommodate assets-based mitigation by including information related to the defendant’s capacity for growth, self-improvement, and redemption.

 

Decision-Making and Holistic Public Defense Post-Montgomery v. Louisiana by Jeanette Hussemann and Jonah Siegel

Abstract: In 2012, the U.S. Supreme Court ruled in Miller v. Alabama that mandatory sentences of life without the possibility of parole (LWOP) for youth are unconstitutional.  In 2016, the Court held in Montgomery v. Louisiana that the ruling in Miller should be applied retroactively. Drawing from qualitative interviews with justice actors, and individuals who were sentenced to LWOP as juveniles and paroled, this article examines the implementation of Miller-Montgomery in Michigan, the factors that influence decisions to release juvenile lifers, and their reentry process.  In doing so, we focus specific attention to the role of publicly appointed defense attorneys and the application of holistic defense practices to support Montgomery case mitigation and juvenile lifer reentry.  Findings indicate that institutional disciplinary and programming records, emotional wellness, statements by victims’ family members, political considerations, and reentry plans are key considerations when deciding whether a juvenile lifer should be eligible for parole.

July 9, 2020 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Recommended reading, Who Sentences | Permalink | Comments (0)

Friday, June 26, 2020

More great new Politico Magazine coverage now on "Justice Reform: Prison Conditions"

In this post a couple of months ago, I noted that the Politico Magazine had produced a bunch of great new articles on criminal justice reform issues under the heading "Justice Reform: The Decarceration Issue."  Those article are still collected at this link, but they are now topped by another great new set of pieces under the heading "Justice Reform: Prison Conditions."  Here are the lengthy pieces under this heading with their full headlines:

The Lifers Changing Prisons From Inside: Over 40 years, the National Lifers of America rewrote the rules of prison reform. Now they've hit a new obstacle: connecting with the outside world during a pandemic.

San Quentin’s Breakthrough Prison Newsroom: A huge podcast hit and a revived newspaper mean that policymakers really have to listen. 

10 Races That Could Change the System: Forget Washington. The real challenges to the system are coming from cities and states. Here are the ones to watch.

How U.S. Prisons Became Ground Zero for Covid-19: Tight quarters, strained hygiene practices and guards moving to and from their community put prisons at risk of becoming coronavirus hotbeds.

Prior related post:

June 26, 2020 in Prisons and prisoners, Recommended reading | Permalink | Comments (0)

Monday, June 22, 2020

Rounding up some recent sentencing scholarship new to SSRN

In this space, I typically only flag "brand new" scholarship when if first appears on SSRN and which has not been previously available in print or elsewhere online.  But I have seen a number of notable and still timely pieces with 2019 publication dates that have just recently been posted to SSRN.  Because I always benefit from additions to my summer reading list, I figured I would flag this quartet of "new to SSRN" pieces in this one post:

What Makes the Death Penalty Arbitrary? (And Does It Matter if It Is?) by Chad Flanders

18 U.S.C. section 3553(a)'s Undervalued Sentencing Command: Providing a Federal Criminal Defendant with Rehabilitation, Training, and Treatment in 'the Most Effective Manner' by Erica Zunkel

The Bureaucratic Takeover of Criminal Sentencing by Maimon Schwarzschild

Categorically Redeeming Graham v Florida and Miller v Alabama: Why the Eighth Amendment Guarantees All Juvenile Defendants a Constitutional Right to a Parole Hearing by Parag Dharmavarapu

June 22, 2020 in Recommended reading | Permalink | Comments (0)

Thursday, June 11, 2020

"A legislative guide for winnable, high-impact criminal justice reforms"

The title of this post is the title of this new detailed briefing from the Prison Policy Initiative. Here is the start and table of contents (with links):

Given the public’s increasing demands for real change to the criminal justice system, we’ve updated and expanded our annual guide for state legislators to reforms that we think are ripe for victory.  We’ve curated this list to offer policymakers and advocates straightforward solutions that would have the greatest impacts without further investments in the carceral system.  We have focused especially on those reforms that would reduce the number of people needlessly confined in prisons and jails — a systemic problem made even more urgent by the COVID-19 pandemic.

This briefing is not intended to be a comprehensive platform, but rather to address a surprising problem faced by legislators: Each state’s criminal justice system varies so much that it can be difficult to apply lessons from other states to the same problem in one’s own.  The laws and procedures are all different, each state collects different data, and often the same words are used to mean very different things in different states, so it’s important to figure out which problems are a priority in your state and which lessons from elsewhere are most useful.  For that reason, each item here includes links to more state-level information, the text of model legislation, and/or detailed guidance on crafting a remedy.

Readers should also note that we made a conscious choice to not include critical reforms that are unique to just a few states, nor important reforms for which we don’t yet have enough useful resources that would make sense in most states.  But this guide grows and evolves each year, so we welcome ideas and resources from other state legislators and advocates.

Table of Contents

End unnecessary jail detention for people awaiting trial and for low-level offenses (2 recommendations)

Shorten excessive prison sentences and improve release processes (2 recommendations)

Sentence fewer people to incarceration and make sentences shorter (3 recommendations)

Change the financial incentives that fuel punitive justice system responses (2 recommendations)

Stop probation and parole systems from fueling incarceration (4 recommendations)

Keep criminal justice, juvenile justice, and immigration processes separate (2 recommendations)

Give all communities equal voice in how our justice system works (2 recommendations)

June 11, 2020 in Elections and sentencing issues in political debates, Recommended reading, Who Sentences | Permalink | Comments (2)

Monday, June 01, 2020

Free download available for "360 Federal Crimes: elements and defenses"

Ed Hagen, who served as Assistant Director at the US Department of Justice Office of Legal Education, sent me this email:

I thought that your readers would be interested to know that for the next three days, June 1-3, the Kindle version of 360 Federal Crimes - Elements and Defenses is a *free* download.

360 FEDERAL CRIMES is a 550-page field guide that covers the 360 most commonly charged federal crimes, including narcotics, firearms, immigration, money laundering, conspiracy, civil rights, racketeering, wire fraud, and identity fraud.

It covers the elements, required mental states, defenses, definitions, DOJ policies, and sentence enhancements.  There is a special emphasis on issues that are not apparent from the statutes, including Pinkerton liability, the Apprendi rule, the official restraint doctrine, the categorical approach, hub-and-spoke conspiracies, entrapment, and much more.

The book also includes a 120-page index.  I stopped short of providing comprehensive coverage of Sentencing Guidelines issues for reasons (I think satisfactorily) explained in the book’s forward.  There is more information about the book (and my background) on the TRIALDEX BLOG and TRIALDEX ABOUT pages.

June 1, 2020 in Recommended reading | Permalink | Comments (0)

Wednesday, May 27, 2020

Council on Criminal Justice releases big new reform report titled "Next Steps: An Agenda for Federal Action on Safety and Justice"

I noted in this post this last summer the notable new group working toward criminal justice reform called the Council on Criminal Justice (CCJ).  I flagged here the CCJ's great set of papers and resources taking a close look at the 1994 Crime Bill (which I had a chance to contribute to as noted here); I also flagged here from December a big CCJ report on "Trends in Correctional Control by Race and Sex."  Today, I am excited to see and report on the CCJ's latest (and arguably most important) work, this big new report titled "Next Steps: An Agenda for Federal Action on Safety and Justice."  This press release provides a useful summary of the report and its major recommendations:

Well before COVID-19 surfaced, the Council on Criminal Justice (CCJ) established an independent task force to chart a course for federal action on criminal justice reform.  The pandemic has underscored the urgency of that effort, and today the Task Force on Federal Priorities released a report detailing 15 achievable, evidence-based proposals for change.  If fully implemented, key recommendations would:

  • Eliminate mandatory minimum sentences for federal drug crimes, reducing the prison population
  • Establish a “second look” provision allowing people serving longer sentences -– many of them elderly and infirm –- to ask courts for a sentence reduction
  • Help formerly incarcerated people succeed by sealing certain criminal records from public view
  • Create independent oversight of the federal prison system to improve conditions for incarcerated people and staff, strengthen reentry planning and other services, and hold employees accountable for misconduct
  • Resolve the federal-state conflict over recreational and medical cannabis by providing federal waivers to states that have legalized it
  • Dedicate millions of grant dollars to reducing victimization and trauma in cities most affected by violence...

The 14-member Task Force was established in June of 2019 to build on federal reforms adopted under the FIRST STEP Act, which passed with strong bipartisan support at the end of 2018.  While crime and incarceration rates have dropped, there is broad agreement across the political spectrum that more must be done to make communities safe and guarantee justice — not just by states and localities, where most criminal justice happens, but also by the federal government, which runs the country’s largest correctional system and helps set the tone of the national conversation.

Through their vigorous deliberations, Task Force members zeroed in on reforms that not only target critical needs, but also are politically viable and hold the potential to make the greatest improvements in safety and the administration of justice. Reflecting the commitment of Task Force members to bipartisan, data-driven solutions, all 15 proposals are accompanied by a policy rationale, detailed implementation steps, and a summary of the research and evidence that support them.

Task Force members represent a broad cross-section of stakeholders: former federal prosecutors and defenders; a former mayor and a veteran police leader; experts in prisoner reentry, substance use, and victim rights; and advocates and formerly incarcerated people. Task Forces are strictly independent of CCJ and solely responsible for the content of their reports.  Members are asked to join a consensus signifying that they endorse the general policy thrust and judgments reached by the group, though not necessarily every finding and recommendation.

Regular readers will not be surprised to hear that I am a big fan of a lot of these recommendations, and I actually like this full list of all 15 recommendations even more than those summarized in the press release. In a few subsequent posts, I hope to give particular attention and scrutiny to the various key sentencing recommendations.  For now I will be content to say, good work CCJ!

May 27, 2020 in FIRST STEP Act and its implementation, Mandatory minimum sentencing statutes, Offense Characteristics, Recommended reading, Who Sentences | Permalink | Comments (2)

Friday, May 22, 2020

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

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

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

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

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

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

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

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

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

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

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

May 22, 2020 in Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Recommended reading, Who Sentences | Permalink | Comments (0)