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 (1)

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)

Thursday, November 21, 2019

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

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

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

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

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

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

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

Tuesday, November 19, 2019

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

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

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

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

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

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

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

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

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

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

Wednesday, November 13, 2019

"Defending Progressive Prosecution"

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

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

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

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

Friday, November 08, 2019

Latest Harvard Law Review SCOTUS issue gives criminal justice its due

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

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

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

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

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

Monday, October 21, 2019

Ohio State Journal of Criminal Law seeking commentary submissions

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

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

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

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

Friday, October 18, 2019

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

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

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

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

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

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

Friday, October 11, 2019

Terrific ABA review of SCOTUS criminal work during Oct 2018 Term

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

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

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

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

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

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

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

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

Saturday, September 21, 2019

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

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

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

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

"Executing the intellectually disabled serves little purpose"

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

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

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

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

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

Saturday, August 24, 2019

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

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

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

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

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

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

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

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

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

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

Monday, August 19, 2019

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

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

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

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

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

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

Saturday, August 10, 2019

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

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

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

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

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

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

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

Prior related posts:

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

Thursday, August 08, 2019

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, July 31, 2019

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

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

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

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

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

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

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

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

Prior related posts:

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

Sunday, July 28, 2019

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

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

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

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

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

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

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

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

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

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

Monday, July 22, 2019

A fitting tribute to the work of Mark Kleiman

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

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

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

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

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

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

Tuesday, July 16, 2019

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

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

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

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

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

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

 

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

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

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

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

Wednesday, July 10, 2019

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, July 09, 2019

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

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

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

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

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

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

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

Monday, July 08, 2019

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

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

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

Is Mass-Incarceration Inevitable? by Andrew Leipold

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

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

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

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

Friday, June 28, 2019

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

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

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

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

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

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

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

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