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 (0)

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)

Monday, May 04, 2020

Rounding up some recent commentary on the current COVID prison state

I continue to see more COVID commentary than I have time to read closely, let alone blog about effectively.  But, trying to cover lots of ground, here is a round up of some pieces that caught my eye in recent days:

By Mia Armstrong, "Life Has Moved to Zoom. Can Prison Visitation Do the Same?"

By Sessi Kuwabara Blanchard, "Two Prominent COVID-19 Federal Prison Deaths’ Common Denominator? Joe Biden"

By Rory Fleming, "In a Prison Where Coronavirus Is Rife, Waiting on a Judge’s Call to Be Freed"

By Oren Gur, Jacob Kaplan and Aaron Littman, "Data Is Key To Stopping COVID-19 Spread In Prisons"

By Holly Harris, "Blame the Justice Department for Andrea Circle Bear’s Death"

By Nicole Lewis, "Can College Programs in Prison Survive COVID-19?"

By Brent Orrell and Grant Duwe, "COVID-19 has exposed the interlocking risks of mass incarceration"

By John Wetzel, "What We've Learned About COVID-19 in Prisons"

 

UPDATE:  I forgot to include a great piece by the always great Radley Balko, and then I saw a number of others that seemed worth adding (though this list is still far short of comprehensive):

By Radley Balko, "Stopping covid-19 behind bars was an achievable moral imperative. We failed."

By Talha Burki, "Prisons are 'in no way equipped' to deal with COVID-19"

By Alex Busansky, "What a Pandemic Can Teach Us About the Future of Criminal Justice"

By Lauren-Brooke Eisen, "Covid-19 Continues Its Toll on Jails and Prisons"

By Nancy Gertner, "Coronavirus can mean a death sentence to prisoners: We got used to treating people as categories, not human beings."

By Lovisa Stannow, "What about the prisoners who won’t get out?"

May 4, 2020 in Impact of the coronavirus on criminal justice, Recommended reading | Permalink | Comments (0)

Sunday, May 03, 2020

"Decarceration in the Face of a Pandemic"

There is a whole lot of terrific commentary these days about the intersection of criminal justice, incarceration and the COVID crisis. If you only have time to read one piece, I could recommend this terrific Cato piece by Clark Neily which has the title that I used for this post. Read the whole thing, and here is how it gets started:

America's jails and prisons are now among the deadliest environments on the planet.  Most of them are desperately overcrowded, understaffed, unhygienic, and utterly unable to provide even minimally adequate medical care to those who contract COVID-19, which is now spreading like wildfire through those facilities, endangering not only the lives of prisoners, but also of guards, staff, and the communities to which they all return at the end of their shifts.

Thus, one of the most urgent — and contentious — debates in criminal justice today is over which prisoners to release in the face of a pandemic that is literally unprecedented during America's era of mass incarceration, which dates back to the early 1990s.  Defense attorneys across the nation have filed a blizzard of early-release motions on behalf of their incarcerated clients, and the ACLU and other civil rights groups have sued a number of prisons and jails seeking the immediate release of particularly vulnerable inmates. Tragically, all of this is unfolding against the backdrop of a system that falls disgracefully short of meeting prisoners' medical needs during the best of times.  In the midst of a genuine emergency, it is no secret what will happen to most people who contract COVID-19 behind bars: They will be left to live or die with only token medical attention.

As a result, all but the most obtuse proponents of mass incarceration now recognize that it has become morally indefensible to continue holding at least some fraction of the roughy 2.3 million people currently behind bars in an environment where we can neither adequately protect them from nor treat them for COVID-19.

But the system is having an extraordinarily difficult time deciding whom to release, and I think there are three key reasons for that: (1) we have become so cavalier in our use of the criminal sanction that the mere fact of a person's incarceration tells us nothing about his moral culpability or what risk his immediate release might pose to society; (2) we've become so inured to how horrible the conditions in jails and prisons are that exposing inmates to a new and exceedingly virulent pathogen may strike some as simply a marginal change in the already dismal circumstances of their confinement; and (3) thinking seriously about whom to set free and whom to keep behind bars in the midst of a pandemic raises questions that the carceral-industrial complex can scarcely afford to have people asking after the crisis subsides.  I will address those points in turn.

May 3, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Recommended reading, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Wednesday, April 29, 2020

Catching up on lots more new sentencing and punishment scholarship

In this post two weeks ago I spotlighted more than a dozen new pieces of sentencing and punishment scholarship that had been posted to SSRN and that I did not find time to highlight in separate posts while consumed with COVID criminal justice issues. A few weeks later, I am still consumed with other matters and there are still more new pieces worth noting. So, I will again seek to catch up for lost time with another lengthy post linking to a lot of new scholarship from SSRN (listed here in alphabetical order by title):

Atwater and the Misdemeanor Carceral State by Alexandra Natapoff

The Constitutionalization of Parole: Fulfilling the Promise of Meaningful Review by Alexandra Harrington

Eighth Amendment Presumptive Penumbras by William W. Berry

Lady Justice Without Her Blindfold: An Analysis on How Race Influences Sentencing by Adefisayo Adegoye

Legislating for Profit and Optimal Eighth Amendment Review by Murat C. Mungan and Thomas J. Miceli

Populist Prosecutorial Nullification by Kerrel Murray

Pretrial Detention in the Time of COVID-19 by Jenny E. Carroll

The Prisoner and the Polity by Avlana Eisenberg

Race Decriminalization and Criminal Legal System Reform by Michael Pinard

State Prosecutors at the Center of Mass Imprisonment and Criminal Justice Reform by Nora V. Demleitner

The Unusual Cruelty of Nursing Homes Behind Bars by Rachel Lopez 

Victims, Right? by Anna Roberts

April 29, 2020 in Recommended reading | Permalink | Comments (0)

Thursday, April 23, 2020

Great new Politico Magazine feature on "Justice Reform: The Decarceration Issue"

The Politico Magazine has a bunch of great new articles on criminal justice reform issued collected here under the heading "Justice Reform: The Decarceration Issue."  Here are the lengthy pieces under this heading with their full headlines:

Biden vs. Trump: Who’s the Actual Criminal Justice Reformer?: Suddenly, both the Republican and Democrat promise big changes. We matched their policies head-to-head, and asked experts for a reality check.

A Republican Crusader Takes on Oklahoma’s Prison Machine: In the state that locks up more of its citizens than any other, a former politician is using the ballot box—and some surprising alliances—to nudge his own party toward change.

How Oklahoma Popped Its Prison Bubble, In Charts: In 2016, Oklahoma incarcerated more people per capita than any other state. Then it began to bring those numbers down.

New York Tried to Get Rid of Bail. Then the Backlash Came. A national movement stalled by backlash politics gets some new wind at its back.

April 23, 2020 in Campaign 2020 and sentencing issues, Criminal justice in the Trump Administration, Recommended reading, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Wednesday, April 15, 2020

"Ensuring Justice and Public Safety: Federal Criminal Justice Priorities for 2020 and Beyond"

2020_04_LEL_Policy_Report_Final_Page_01-717x1024The title of this post is the title of this notable new report released today by the group Law Enforcement Leaders to Reduce Crime & Incarceration.  The report appears to have been written mostly pre-COVID, but its Forward contextualizes the report for our current times:

While we were finalizing the policy recommendations in this report, our country began battling an unprecedented health crisis.  The coronavirus pandemic has shined a spotlight on the size of America’s incarcerated and justice-involved population, illuminating both the extreme vulnerability of those held behind bars and how our prison population impacts our broader communities.  This public health emergency has required politicians and those who manage our criminal justice systems to rapidly reevaluate how many of those who are incarcerated can be safely released, how police and prosecutors can best serve their communities, and how to safely reduce the size of the justice system overall.

Even before the outbreak, the United States stood at a crossroads on criminal justice reform.  While some of our leaders have continued to use fear of crime to advocate for policy, many advocates, policymakers, and law enforcement officials from all parts of the country — and across the political spectrum — have realized that certain tough-on-crime policies of the 1990s and 2000s led to unintended consequences, such as the unnecessary incarceration of thousands, high rates of recidivism, and decreased confidence in law enforcement.  Ultimately, these challenges risk making our communities, including our law enforcement and correctional officers, less safe.

It was against this backdrop that the First Step Act became law in December 2018.  The law provided needed sentencing reform on the federal level and recognized that federal prisons should better promote rehabilitation and successful reentry for the tens of thousands of people who are released from federal custody each year. These ideas are not new, but the bipartisan effort that led to this significant legislation signaled that the country is ready to reexamine its approach to crime and punishment.

As law enforcement veterans who have dedicated our lives and careers to protecting public safety at every level of local, state, and federal government, we are now working to envision a criminal justice system that is fairer and more just while keeping crime low.  Our generation of law enforcement leaders helped to cut the violent crime rate to less than half of its peak in 1991, and we are committed to keeping it down. But we must be smart about it.  Decades of law enforcement experience, and the study and implementation of innovative programs around the country, have convinced us that crime policies that rely primarily on arrest, jail, and prison are ineffective to ensure public safety.

Members of our group have been at the forefront of various reform efforts for decades.  We have tried and tested numerous strategies and programs — such as community and problem-oriented policing, focused violence deterrence, pre-arrest diversion programs, increased access to mental health and drug treatment, and alternatives to incarceration — that reduce unnecessary incarceration while keeping our communities safe.  Many of our members are also leading the way on how to best reduce the size of the incarcerated population as we struggle to fight the coronavirus outbreak.  Yet implementing and maintaining high-quality strategies that will reverse the tide of unnecessary incarceration for the long term requires unwavering focus — and funding.

If we are serious as a society about rooting out the causes of our overreliance on the criminal justice system, the federal government has a significant role to play.  It is uniquely poised to provide key leadership by making reforms at the federal level and to incentivize local lawmakers to implement innovative and groundbreaking work across the country. Congress and the president can be powerful allies in this effort.  We seek to continue working together with leaders of the legislative and executive branches to shape the national consensus, pass legislation, and steer federal dollars toward programs that encourage safer, healthier communities.  To be sure, with thousands of police departments and prosecutors working to keep their communities safe, law enforcement is necessarily a very local concern. Each community must address its own crime problems and challenges. But it is critical that the federal government support these local efforts while providing leadership on how the criminal justice system can drive down crime without causing undue harm to communities.  Our experience has taught us that jail or prison need not be the automatic response for every broken law.  The research backs it up: for many nonviolent and first-time offenders, jail or prison is unnecessary for public safety and can endanger our communities in the long term, while causing harm to individuals and families.  To counter this, it is essential that we identify policies that direct away from the criminal justice system those who are mentally ill or have an addiction and that we reduce recidivism. This will position us to focus our resources on individuals who commit violent crimes while helping to restore community trust in law enforcement.

We urge Congress and the administration to carefully consider a range of strategies to promote public safety in the face of this unprecedented epidemic and, in the long term, to help ensure justice for local communities.  With those goals in mind, this report offers specific policy recommendations in each of five areas:

  • Reducing unnecessary incarceration
  • Increasing mental health and drug treatment
  • Bolstering community policing
  • Improving juvenile justice
  • Preserving and expanding recidivism reduction

Implementation of and funding for our recommendations will help to forge a path toward our common goal of a safer nation.  Congress and the administration should seize the moment for criminal justice reform and lead the way forward to create policies that reduce unnecessary incarceration now and will keep jail and prison population levels low in the long term.  The policies and the programs we propose should be the next steps for improving our systems of justice.

April 15, 2020 in Recommended reading, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

Catching up on lots of new recent (COVID-free) sentencing and punishment scholarship

As I have been consumed with COVID criminal justice issues over the last month, I have fallen behind in spotlighting new sentencing and punishment scholarship that has been posted to SSRN. I will seek to catch up for lost time with this lengthy post linking to a lot of the newer (but non-COVID) postings in alphabetical order:

Actuarial Risk Assessment at Sentencing: Potential Consequences for Mass Incarceration and Legitimacy by Michael M. O'Hear

Athenian Forgiveness, American Erinyes: The Brutality of American Capital Punishment by Michael Shammas

Categorical Nonuniformity by Sheldon Evans

(De)carceral Jail Administration by Aaron Littman

Gundy and the Civil-Criminal Divide by Jenny Roberts

(How Much) Do Mandatory Minimums Matter? by Stephanie Holmes Didwania

How Much is Too Much? A Test to Protect Against Excessive Fines by Daniel Harawa

Life Without Parole as Death Without Dignity by Brittany Deitch

Life Without Parole Sentencing by Brandon L. Garrett, Karima Modjadidi, Kristen Renberg and Travis Seale-Carlisle

Long-Term Incarceration and the Moral Limits of Punishment by Jacob Bronsther

Place, Race, and Variations in Federal Criminal Justice Practices by Mona Lynch

Supreme Court Clerks and the Death Penalty by Matthew Tokson

The Uncertain Future of Felon Disenfranchisement by Bruce E. Cain and Brett Parker

The Washington State Second Chance Expungement Gap by Colleen V. Chien, Zuyan Huang, Jacob Kuykendall and Katie Rabago

April 15, 2020 in Recommended reading | Permalink | Comments (0)

Wednesday, April 08, 2020

"The Misplaced Trust in the DOJ's Expertise on Criminal Justice Policy"

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

In this Review of Professor Rachel Barkow's new book, Prisoners of Politics: Breaking the Cycle of Mass Incarceration, I address Professor Barkow’s point about law enforcement resisting criminal justice reforms.  I place particular emphasis on the Department of Justice’s (DOJ) and the National Association of Assistant U.S. Attorneys’ (NAAUSA) opposition to nearly any federal criminal justice reform.  Federal prosecutors often claim that they just enforce the law — no more, no less.  But their actions show the contrary.

Through presidential administrations of both parties, the DOJ and the NAAUSA have affirmatively opposed most federal criminal justice reforms on issues involving sentencing, corrections, and clemency.  Oftentimes they weigh in on issues for which their prosecutors have no expertise.  Even worse, they have thwarted the goals of the very presidents they serve, especially if the president sets out to reform the system in ways that infringe on the DOJ’s prerogatives. 

If their opposition to reform were rooted in public safety or fairness, that would be one thing.  But through their lobbying efforts, they often advocate for policies that make it easier for federal prosecutors to charge and incarcerate people — as if that is the only worthy goal of the federal criminal justice system.  And all too often federal policymakers — whether members of Congress, the White House, or the U.S. Sentencing Commission — have listened.  As a result, there are now nearly 4,450 federal statutes and hundreds of thousands of federal regulations carrying criminal penalties, excessively punitive federal sentences, and a federal prison population that has increased by 618 percent since 1980.

April 8, 2020 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Recommended reading, Who Sentences | Permalink | Comments (0)

Wednesday, April 01, 2020

Check out and cite all (now free) Federal Sentencing Reporter content

The academic publisher of the Federal Sentencing Reporter, University of California Press, has responded to the impact of the coronavirus crisis by making all UC Press online journal content free to everyone through June 2020.  I am grateful to UC Press for this move, and it dawned on me that it might be useful to flag some content from some recent FSR issues that might be useful for judges and lawyers working on challenging sentencing issues during these challenging times:

Some Recent Federal Sentencing Pieces

A Good Sentencing Precedent is Hard to Find by Brian A. Jacobs (Feb 2020)

Sentencing in Chaos: How Statistics Can Harmonize the “Discordant Symphony” by Mark H. Allenbaugh (Feb 2020)

Consensus, Compassion, and Compromise? The First Step Act and Aging Out of Crime by Jalila Jefferson-Bullock (Dec 2019)

Second Looks at Sentences under the First Step Act by Sarah French Russell (Dec 2019)

Reflections on “Rewriting the Sentence” by Hanna Liebman Dershowitz (Oct 2019)

The Tyranny of the Trial Penalty: The Consensus that Coercive Plea Practices Must End by Norman L. Reimer and Martin Antonio Sabelli (Apr/June 2019)

Looking in the Mirror: The Prosecutor’s Role in Ending Mass Incarceration by Chiraag Bains (Feb 2018)

 

Some Recent Prison Pieces

Beyond First Steps: Reforming the Federal Bureau of Prisons by Shon Hopwood (Dec 2018)

Understanding Federal “Restrictive Housing Unit” Environments by Jack T. Donson and Keramet Reiter (Dec 2018)

How Many Americans are Unnecessarily Incarcerated? by James Austin, Lauren-Brooke Eisen, James Cullen, Jonathan Frank, Inimai Chettiar and Cornell William Brooks (Dec 2016/Feb 2017)

Transforming Prisons, Restoring Lives: Final Recommendations of the Charles Colson Task Force on Federal Corrections (excerpted) (June 2016)

Projecting Recidivism Rates for Federal Drug Offenders Released Early from Prison by Matthew G. Rowland (April 2016)

This is just a small slice of many hundreds of article now freely available at this FSR page thanks to US Press. The top of the FSR pages includes an effective search box so that users can readily find articles and other materials on whatever topics are of particular interest.

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

Friday, March 27, 2020

Assembling some COVID criminal justice resource pages

I have previously posted here and elsewhere about some collected resources on coronavirus issues, but I have now decided to try to put some of these resources more permanently on my left sidebar.  Here are the links I have assembled so far, and I welcome suggested additions.

 

UPDATE: A helpful reader from Down Under wrote to me to suggest a bunch of additional terrific COVID-19 resource pages, including a number of international sites:

March 27, 2020 in Impact of the coronavirus on criminal justice, Recommended reading | Permalink | Comments (0)

Saturday, March 21, 2020

"Communicating Punishment"

The title of this post is the title of this notable new paper authored by Marah Stith McLeod just posted to SSRN. Here is its abstract:

Does it matter whether convicted offenders understand why they are being punished? In the death penalty context, the Supreme Court has said yes; a prisoner who cannot understand the state’s reasons for imposing a death sentence may not be executed.  Outside the capital context, the answer is less clear.  This Article focuses on why and how states should help all offenders make sense of their sanctions, whether imposed for retribution, for deterrence, for incapacitation, or for rehabilitation.

Judges today sometimes try to explain sentences to criminal offenders so that they know the purposes of their suffering. But judges are busy, defendants are not always interested, and the law often treats such explanations as unimportant or even unwise.  Legislatures, moreover, rarely convey the purposes of statutory penalties, plea bargaining obscures the reasons for punishment, and the experience of punishment does not always reflect its social aims.

Scholars and critics of American criminal justice tend to pay little attention to these deficits.  Perhaps explaining individual sentences seems unimportant compared to the larger effort to humanize and rationalize penal policy.  In fact, however, the two are intertwined.

Communicating the reasons for punishment humanizes offenders by engaging with them as reasoning beings worthy of society’s continued concern — not as unreasoning animals simply to be harnessed or caged. The process of articulating punishment goals also can rationalize sentencing by reducing error, bias, and excess.

We can build a legal culture that respects offenders and advances punishment rationality by communicating the reasons for criminal sanctions. Legislatures can clarify the purposes of statutory penalties, prosecutors can explain how sanctions based on plea deals serve legitimate goals, judges can spell out the social objectives of sentences in terms that offenders can understand, and prison and probation authorities can convey sentencing rationales during the experience of punishment itself.

I had the honor and pleasure of reading an earlier draft of this paper as part of an AALS event, and upon first read I considered this piece a very important contribution to the literature.  A few months later, amidst a global pandemic, I think it even more important to consider how decisions in the criminal justice system communicate that offenders are still "worthy of society’s continued concern."

March 21, 2020 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (0)

Friday, March 06, 2020

The new SSRN adventures of some older writings

Some recent posts on topic ranging from second-look sentencing mechanisms to drug policy in part led me to make sure some older writings of mine were posted to SSRN for accessibility in that forum.  Specifically, I have recently had posted the following "old" papers in this "new" setting:

Encouraging (and Even Requiring) Prosecutors to Be Second-Look Sentencers

Sentencing is Dang Hard... And So...

Reflecting on Parole's Abolition in the Federal Sentencing System

Teaching Drugs: Incorporating Drug Policy into Law School Curriculum

In addition to welcoming feedback on these works, I would also welcome thoughts on whether folks find SSRN a particularly useful (or not-so-great) online repository.  I have many (though not all) of my longer scholarly writings available via SSRN, but I have not made a sustained effort to upload a lot of amicus briefs and shorter pieces to the site.  I sense not a lot of practicing lawyers and other non-academics use SSRN regularly, but perhaps I am not quite right on that assessment.

March 6, 2020 in On blogging, Recommended reading | Permalink | Comments (1)

Sunday, February 23, 2020

"The Extraordinary Ordinary Prisoner: Essays From Inside America’s Carceral State"

Jeremiah-book-coverThe title of this post is the title of this notable new book authored by Jeremiah Bourgeois. The book is a collection of columns, mostly written while Jeremiah Bourgeois was serving a term of life imprisonment for a crime committed at the age of fourteen. Here is how the work is described at Amazon:

On June 7, 2016, an email from a prospective writer appeared in the inbox of The Crime Report, a nonprofit criminal justice news site. The last line in the message caught the editors' attention: “I realize that submissions should include more information. However, I hope you overlook that requirement in light of the fact that I am incarcerated.”

Over the next three years, Jeremiah Bourgeois, then confined to the Stafford Creek Corrections Center, a mixed medium-minimum security prison for men near Aberdeen, Washington, contributed 36 columns on his own transformation from self-destructive rage to dedicated writer and on subjects such as the treatment of gay and transgender prisoners, the lack of a #MeToo movement for incarcerated women, and the hypocrisies of prison “family visitation” events.

Months after Bourgeois finally won his parole in 2019, The Crime Report is publishing this collection of Jeremiah Bourgeois's most searing and unforgettable work.

The Crime Report provides more of the story in this posting:

When he wrote us, he was 38 years old — and had already spent the previous 24 years behind bars for the May 19, 1992, revenge killing of Seattle store owner Tecle Ghebremichale, who had testified against his brother in an assault case. Aged 14 at the time of his crime, he was sentenced to life without parole in the era before the Supreme Court ruled such sentences for juveniles unconstitutional.  Jeremiah had every expectation of spending the rest of his life in prison. “It was probably the saddest case I’ve ever had,” his lawyer, Michael Trickey, told the Seattle Times in 2005, noting both Jeremiah’s age and length of sentence.

Jeremiah spent much of his first decade in prison in a permanent state of anger and defensiveness, frequently in conflict with corrections officers and fellow inmates.  But then something changed.  Prisoner #708897, as he would later write in his columns, realized that he was on a path to self-destruction.  He began reinventing and reeducating himself through long hours in the prison library.

He is not the first incarceree to write his story.  Prison writing has long been a special genre, and The Crime Report has frequently published work written behind bars — by both juveniles and adults. But Jeremiah’s emergence as an independent, often contrarian, voice has been especially timely as our national debate about mass incarceration approaches a crossroads.

February 23, 2020 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Recommended reading, Scope of Imprisonment | Permalink | Comments (1)

Friday, February 14, 2020

Call for Papers for Justice System Journal: "Justice for All: Empirical Research on Indigent Defense"

I am always happy, indeed eager, for this blog to be a forum for noting calls for papers and/or events of interest to criminal justice academics, practitioners and advocates. To that end, I am happy to be able to post this posting titled "Call for Papers! IDRA and the Justice System Journal team up":

IDRA is pleased to announce the following Call for Papers for a volume of indigent defense research in the prestigious Justice System Journal.  Please consider submitting your manuscripts, and get in touch with any questions!

Call for Papers
Special Issue of Justice System Journal
Justice for All: Empirical Research on Indigent Defense

Justice System Journal will publish a special issue titled “Justice for All: Empirical Research on Indigent Defense.” This special issue will be guest-edited by Prof. Janet Moore of University of Cincinnati College of Law, and Dr. Andrew Davies of the Deason Criminal Justice Reform Center at Southern Methodist University. Moore and Davies co-founded the Indigent Defense Research Association in 2015.

Empirical researchers have turned their attention to indigent defense in new ways in the last several years. Their work has revealed new insights into the nature and importance of indigent defense systems and attorneys. It has generated evidence of the impact defense services can have, expanded theoretical understanding, and occasionally called core assumptions into question. This new scholarship has generated fresh debate about the value of defenders to criminal legal systems, the scope and purpose of their work, and whether they counteract or reproduce oppressive aspects of those systems.

Authors seeking to participate in these debates are strongly encouraged to consider submitting their work for this Special Issue. Submissions of original empirical work on any topic concerning criminal defense services for those unable to afford counsel will be considered. In keeping with the theoretical and methodological diversity of the field, the editors welcome work utilizing a range of methodologies, and work which examines issues at the a local, state, national, or even international level.

Possible topics for manuscripts include, but are not limited, to:

  • Explorations and explanations of how defense policy is made across places or over time (including factors affecting resources given to defense, defense/prosecution resource disparities, policies restricting or extending access to defense counsel, etc.);
  • Evaluations of programs and policies in defense services, and comparisons of program alternatives;
  • Examinations of the impacts of caseloads, attorney training, or other resources on defense services;
  • Analyses of the importance of contextual factors such as rurality, demographic diversity, political circumstances, or courtroom dynamics, for defense services;
  • Research on the impact of defense services themselves on local legal culture and local communities, including through participation in criminal legal system reform initiatives;
  • Studies which seek to improve understanding of the experiences of people who need public defense, their lawyers, and other members of the legal team (e.g., investigators, social workers, defense system managers).

Articles intended for consideration for inclusion in this issue should be submitted by May 15, 2020, via the journal’s online submission process.  Questions about potential submissions should be directed to Andrew Davies (albdavies@smu.edu).

February 14, 2020 in Recommended reading, Who Sentences | Permalink | Comments (0)

Sunday, February 09, 2020

American Journal of Public Health's supplement explores public health impact of carceral state

Download (10)I have just recently seen that the American Journal of Public Health has this big new "Supplement" with many articles under the headline "Documenting and Addressing the Health Impacts of Carceral Systems."  This short introduction to the issue closes this way:

Over the past 40 years, our society has deliberately divested from social and public goods designed to promote health and economic security while pumping resources into police, courts, and correctional systems that punish, impoverish, and dehumanize people and communities.

We conceptualized this special supplement to amplify the growing chorus of scholars, practitioners, and activists who are committed to ending mass incarceration.  As an interdisciplinary field, public health has a critical role to play by bringing our range of theoretical and analytic tools to bear on documenting and addressing the health impacts of carceral systems.  As conveyed in prior research and the articles in this supplement, mass incarceration has already caused incalculable damage to the health and vitality of our society.  As scholars working on these issues in local government, academia, advocacy, and the nonprofit world, we saw a need to further solidify recognition of mass incarceration as a sociostructural driver of health inequities in our field by devoting an entire supplement to this topic in a premier journal.

This supplement includes original research and essays that portray the myriad pathways through which carceral systems imperil the health of individuals, families, neighborhoods, and the population by compromising social determinants of health.  Collectively, it also offers visionary ideas and practical guidance for addressing these harms.  We hope it inspires public health scholars, advocates, and practitioners to continue devoting their intellect and energy to the topics covered.

We are thankful to everyone who submitted and contributed to this issue.  We are especially fortunate to have powerful pieces written by formerly incarcerated people who are working tirelessly to help those still locked down to find hope and dismantle carceral systems for future generations.  In addition, we thank the editors and staff at AJPH and the Robert Wood Johnson Foundation for supporting this supplement and ensuring that the articles are available in an open-access format.  The aim was to ensure that the content finds its way beyond academic discourse and proves useful to all people fighting for health equity, decarceration, and racial justice.

This supplement includes nearly three dozen (relatively short) articles that ought of be of great interest to those interested in the intersections of criminal justice and public health. Here are just a few of the pieces that ought to be of particular interest to sentencing fans:

February 9, 2020 in Prisons and prisoners, Recommended reading | Permalink | Comments (0)

Friday, January 24, 2020

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

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

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

Narrow the net of incarceration

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

Create effective rehabilitation programs

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

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

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

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

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

Tuesday, January 21, 2020

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

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

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

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

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

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

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

January 21, 2020 in Race, Class, and Gender, Recommended reading, Television | Permalink | Comments (3)

Thursday, January 16, 2020

Rounding up some notable recent criminal justice discussions

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

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

"The Defender General"

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

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

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

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

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

Monday, January 06, 2020

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

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

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

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

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

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

Sunday, January 05, 2020

Notable reform perspectives via Brennan Center

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

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

Tuesday, December 31, 2019

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

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

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

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

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

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

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

Monday, December 30, 2019

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

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

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

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

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

Tuesday, December 24, 2019

"An Intellectual History of Mass Incarceration"

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

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

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

Saturday, December 14, 2019

"Solitary Confinement in the Young Republic"

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

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

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

Thursday, December 12, 2019

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

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

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

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

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

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

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

Monday, December 09, 2019

Lots worth reading at Law360 "Access to Justice" section

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

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

"Time To Rethink License Suspensions Without Due Notice"

"Changing The Way We Dialogue About Justice Reform"

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

"Appearances Matter If Jurists Want To Talk Justice Reform"

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

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

Sunday, December 01, 2019

Recommending "Good Law | Bad Law" and other podcasts

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

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

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

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

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