Friday, August 09, 2019

Bold effort by reform advocates to get federal Fair Chance Act enacted via defense bill

This piece from The Hill, headlined "Advocates ramp up pressure on criminal justice measure," explains how and why criminal justice reform advocates have a bold strategy to get additional federal reforms into law expeditiously.  Here are the interesting details:

A coalition of advocacy groups is ramping up pressure on lawmakers to include criminal justice legislation in a must-pass defense bill. The push comes as staffers and lawmakers are expected to informally start merging the House and Senate National Defense Authorization Acts (NDAAs) during the August recess.

The House-passed NDAA includes the Fair Chance Act, which prohibits the federal government and federal contractors from asking about a job applicant's criminal history before making a conditional offer of employment. The Senate's defense bill doesn't include the legislation.

Supporters are rolling out a new poll, obtained exclusively by The Hill ahead of its release, showing most Americans support the ideas behind the Fair Chance Act.

The poll — conducted by GOP polling firm Public Opinion Strategies on behalf of the Justice Action Network, a coalition of outside groups supporting the bill — found that 83 percent of voters say they would support a proposal that allows employers to conduct background checks "but not until after applicants have had a chance to share their skills and qualifications."...

"We've shown overwhelming public support, the administration has shown its support, and now we just need the Senate to include the amendment," said Holly Harris, the executive director of Justice Action Network. She added that she's "really hopeful that the leaders and those negotiating the bill will see both the policy value and the political value."...

The push to include the legislation in the NDAA comes as lawmakers are out of Washington until September. When they return, they'll have a packed floor schedule, including funding the government by Oct. 1 to prevent a second shutdown.

Jason Pye, the vice president of legislative affairs at FreedomWorks, noted that putting the criminal justice measure in the mammoth defense bill prevents it from having to compete with other items on the Senate's agenda. Senate Majority Leader Mitch McConnell (R-Ky.) is likely to prioritize nominations and appropriations when making decisions about the chamber's limited floor time in the fall. "The House could pass Fair Chance and send it over to the Senate and absent the White House saying 'hey McConnell, please take up this bill,' he's not going to do it," Pye said.

Neither the House nor Senate have named which senators will be on the conference committee that will ultimately sign off on the final version of the defense bill. In one potential hurdle to the Fair Chance Act, Sens. Rick Scott (R-Fla.) and Josh Hawley (R-Mo.) both asked to be recorded as "no" on the measure when it passed the Senate Homeland Security and Governmental Affairs Committee earlier this year. They are both members of the Armed Services Committee, making it possible that they end up on the NDAA conference committee.

The criminal justice bill comes after Congress passed long-stalled sentencing and prison reform legislation in late 2018. The bill had wide bipartisan support, but had stalled for years until President Trump threw his support behind it and publicly urged McConnell to give it a vote.

Rep. Doug Collins (R-Ga.), who is sponsoring the Fair Chance Act in the House along with Rep. Elijah Cummings (D-Md.), said he hopes the Fair Chance Act makes it into the NDAA. "The Fair Chance Act builds off the success of the First Step Act and goes one step further by helping rehabilitated men and women gain meaningful employment nationwide," he said. "This bill has the potential change lives and help communities everywhere by reducing recidivism and bringing hope to families from coast to coast.”

August 9, 2019 in Collateral consequences, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Tuesday, August 06, 2019

Notable Govs make the case for pressing forward with additional criminal justice reforms

Jerry Brown, former governor of California, and Matt Bevin, current governor of Kentucky, have this new Hill commentary under the headline "The US has barely scratched the surface on criminal justice reform."  Here are excerpts:

In these highly polarized times, our nation is awash in loud and public fights about immigration, health care, global warming, and other daunting challenges. Criminal justice used to be on that list of divisive topics.  But now Americans of nearly every political and demographic perspective agree — we need a public safety approach that works better and costs less.

As current and former governors who prioritize greater justice and safety, we believe this historic moment carries great opportunity, but even greater responsibility.  We must ensure that our momentum does not slip away, and we must push forward with nonpartisan purpose toward a criminal justice system worthy of our nation.

Our states of Kentucky and California are very different.  But we and other leaders across the country have coalesced around the principle that while people must be held accountable for breaking our laws, we cannot build our way to a safer society with ever-more prisons....

But while several dozen states and the federal government have made laudable progress, we’ve barely scratched the surface of all that must be done.  Taxpayers spend a quarter trillion dollars per year to arrest, try, sentence, and supervise the 7 million adults behind bars or on probation and parole.  Yet return-to-prison rates remain high, too many communities struggle with violence and substance abuse, and new technologies are increasing our vulnerability to cybercrime and other threats.

Fortunately, we know a lot more about what works in criminal justice than we did 40 years ago, when our nation began an incarceration boom that has exacted a heavy toll, in both fiscal and human costs.  While there are no magic bullets, research has spotlighted effective strategies to stop the cycle of reoffending and better equip people leaving prison to resume stable lives....

We’ve witnessed the power of shifting political winds, and we know that, particularly with criminal justice reform, we must double down on our efforts and guard against backward-looking proposals that are borne of emotion or recycle failed ideas of the past.

August 6, 2019 in Elections and sentencing issues in political debates, Reentry and community supervision, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Saturday, August 03, 2019

"Consequences of mental and physical health for reentry and recidivism: Toward a health‐based model of desistance"

The title of this post is the title of this recent Criminology article authored by Nathan Link, Jeffrey Ward and Richard Stansfield. Here is its abstract:

During the last few decades, criminologists have identified several adult roles and statuses, including employment, positive family relations, and economic stability, as critical for promoting successful reintegration and desistance.  Very few researchers, however, have investigated the conditions that serve to bring about these transitions and successes crucial for behavior change.  As a complement to a burgeoning amount of literature on the impact of incarceration on health, we emphasize the reverse: Health has important implications for reentry outcomes and reincarceration.

Informed by multiple disciplines, we advance a health‐based model of desistance in which both mental and physical dimensions of health affect life chances in the employment and family realms and ultimately recidivism.  Investigating this issue with longitudinal data from the Serious and Violent Offender Reentry Initiative (SVORI) and structural equation models, we find overall support for the health‐based model of desistance.  Our results indicate several significant pathways through which both manifestations of health influence employment, family conflict, financial problems, and crime and reincarceration.  The findings highlight the need for implementation of correctional and transitional policies to improve health among the incarcerated and avert health‐related reentry failures.

August 3, 2019 in National and State Crime Data, Offender Characteristics, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (0)

Monday, July 29, 2019

"The Effect of Public Health Insurance on Criminal Recidivism"

The title of this post is the title of this notable new empirical paper recently posted to SSRN and authored by Erkmen Giray Aslim, Murat Mungan, Carlos Navarro and Han Yu. Here is its abstract:

The prevalence of mental health and substance abuse disorders is high among incarcerated individuals.  Many ex-offenders reenter the community without receiving any specialized treatment and return to prison with existing behavioral health problems.  We consider a Beckerian law enforcement theory to identify different sources through which access to health care may impact ex-offenders' propensities to recidivate, and empirically estimate the effect of access to public health insurance on criminal recidivism. 

We exploit the plausibly exogenous variation in state decisions to expand Medicaid under the Affordable Care Act.  Using administrative data on prison admission and release records from 2010 to 2016, we find that the expansions decrease recidivism for both violent and public order crimes.  In addition, we find that the public coverage expansions substantially increase access to substance use disorder treatment.  The effect is salient for individuals who are covered by Medicaid and referred to treatment by the criminal justice system. These findings are most consistent with the theory that increased access to health care reduces ex-offenders' perceived non-monetary benefits from committing crimes.

I think the punchy way to pitch these findings would be to say that Obamacare reduces crime and limiting or eliminating Obamacare risks increasing crime.  Very interesting (though not all that surprising for folks who think through issues at the intersection of criminal justice and health care access).

July 29, 2019 in National and State Crime Data, Offender Characteristics, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (0)

Sunday, July 28, 2019

"After the First Step Act, we all have a role to play to build a society of second chances"

The title of this post is the headline of this notable new Fox News commentary authored by Craig DeRoche, who is the senior vice president of advocacy and public policy at Prison Fellowship. I recommend the piece in full, and here are excerpts:

FSA’s federal sentencing and prison system reforms still face key administrative and financial challenges.  Since May 2018, the Bureau of Prisons has lacked a permanent director.  The agency urgently needs a committed, effective leader to drive implementation of the reforms in the FSA. Five vacancies on the U.S. Sentencing Commission also mean that the sentencing reforms included in the FSA are yet to be incorporated into the sentencing guidelines used by federal judges.

In other significant ways, the FSA has yet to live up to its promise.  Evidence-based programming to reduce recidivism, a much-touted pillar of the bill, is not yet fully funded or implemented.  Further, the BOP has yet to allow faith-based prison programs with a proven record of recidivism-reduction, including Prison Fellowship, to function as reentry programs outside the chaplaincy.

As the largest Christian nonprofit serving prisoners and their families, we urge Congress to exercise its oversight and budgetary powers to ensure this historic achievement in federal criminal justice reform does not falter before its potential is realized.  And the public must let Congress know how important it is that these reforms be implemented fully and without unnecessary delay.

Ultimately, it will not be Congress, the Bureau of Prisons, or the White House that must live with the successes or failures of the FIRST STEP Act.  It will be the families with a loved one in federal prison, the incarcerated men and women working toward their second chance, and the countless neighborhoods to which they return after release.

The Bureau of Prisons is the largest single prison system in the United States.  The men and women behind its bars, despite the choices that got them there, have great, untapped potential.  They can return to society as better citizens, neighbors, employees, moms and dads. And when these former prisoners succeed, crime rates go down.

But it will take the full implementation of the FSA, putting the tools for success in the hands of those who need them. And it will take all of us — employers, faith communities, social service organizations, and ordinary citizens — doing our part to come alongside government, advocating for continued reform and building a society of second chances.

FSA was never meant to be the last step toward criminal justice reform.  Rather, in a time of marked political division, it is the first milestone, reminding us all what is possible when we choose to walk the path of restoration together.

July 28, 2019 in FIRST STEP Act and its implementation, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Tuesday, July 23, 2019

"Who’s helping the 1.9 million women released from prisons and jails each year?"

The question in the title of this post is the title of this new Prison Policy Initiative publication.  Here is an excerpt (with links from the original):

As in other stages of the criminal justice system, most post-release policies and programs were created with the much larger male population in mind.  But research makes clear that women returning home have “a significantly higher need for services than men,” and that reentry supports should be responsive to the particular needs of justice-involved women:

  • Economic marginalization and poverty: As we’ve previously shown, formerly incarcerated women (especially women of color) have much higher rates of unemployment and homelessness, and are less likely to have a high school education, compared to formerly incarcerated men. These findings help explain why, in a 2012 National Institute of Justice (NIJ) study, 79% of women interviewed 30 days pre-release cited “employment, education, and life skills services” as their greatest area of need (followed closely by transition services). An earlier study (Holtfreder et al., 2004), found that poverty is the strongest predictor of recidivism among women, and “providing state‐sponsored support to address short‐term needs (e.g., housing) reduces the odds of recidivism by 83%” for poor women on probation and parole.

  • Housing: A 2017 Prisoner Reentry Institute (PRI) report identified homelessness and the lack of stable housing as the biggest problem facing women in the New York City justice system, noting that 80% of women at Rikers said they needed assistance finding housing upon discharge. A 2006 California study found that 75% of formerly incarcerated women surveyed had experienced homelessness as some point, and 41% were currently homeless. Women who can’t secure safe housing may return to abusive partners or family situations for housing and financial reasons – a point echoed in interviews with paroled women in a study by Brown and Bloom.

  • Trauma and gendered pathways to incarceration: The PRI report emphasizes the importance of gender-responsive and trauma-informedinterventions for reducing recidivism among women. According to that report, such interventions should: provide a safe, respectful environment; promote healthy relationships; address substance use, trauma, and mental health issues; provide women with opportunities to improve their socioeconomic conditions; establish “comprehensive and collaborative” community services; and prioritize women’s empowerment.

  • Family reunification: Most incarcerated women are mothers, and are frequently the primary caretakers of their children. The importance of family reunification – noted throughout the literature, by Carter et al.(2006), Brown and Bloom (2009), Wright, et al. (2012), the NIJ (2012), among others – cannot be overstated, especially given the trauma experienced by children when separated from a parent.

July 23, 2019 in Race, Class, and Gender, Reentry and community supervision | Permalink | Comments (0)

Sunday, July 21, 2019

All the real stories fit to print about the real challenges of criminal justice reform

The New York Times has been giving sustained attention to criminal justice reform stories of late, and these two recent piece especially caught my attention:

July 21, 2019 in FIRST STEP Act and its implementation, Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Friday, July 19, 2019

"The First Step Act of 2018: Risk and Needs Assessment System"

The title of this post is the title of this all-important 102-page document which was required by the FIRST STEP Act and was delivered on time by US Attorney General William Barr.  Here is the document's introduction:

On December 21, 2018, President Donald J. Trump signed the First Step Act of 2018 into law.  Title I of the First Step Act of 2018 (FSA or the Act) is focused on reforms to reduce recidivism among the federal prison population.  Many of Title I’s reforms hinge on the creation of a risk and needs assessment system.

Under the FSA, the Attorney General is charged with developing and releasing a risk and needs assessment system for use in the federal prison system.  With this report, Attorney General William P. Barr releases the First Step Act of 2018 Risk and Needs Assessment System.

This report outlines the work of the Department of Justice to develop and implement the Risk and Needs Assessment System (System).  It also introduces the new System that the Federal Bureau of Prisons will deploy in its facilities.  And the report announces the Department of Justice’s strategic plan to evaluate, validate, and enhance the System over time.

Chapter 1

Chapter 1, Developing the First Step Act of 2018 Risk and Needs Assessment System, details the requirements of the FSA regarding the development of a risk and needs assessment system, including the responsibilities of the Attorney General and the Independent Review Committee.  This chapter also summarizes the Department of Justice’s work to fully implement the Act’s requirements in creating the System.

Chapter 2

In Chapter 2, Characteristics of an Effective Risk and Needs Assessment System, this report identifies those characteristics and principles that are fundamental to developing an effective risk and needs assessment system.  This chapter also describes the valuable data and information that the Department of Justice received from our federal and state partners and experts in the field on developing a strong risk and needs assessment system. These characteristics, principles, and data informed the development of the System.

Chapter 3

Chapter 3, Te First Step Act of 2018 Risk and Needs Assessment System, describes the adopted System in detail, including the new assessment tool that will be deployed in the Federal Bureau of Prisons. This chapter then provides an explanation of the strengths of the tool and enhancements offered by the new System.

Chapter 4

Chapter 4, Implementing the First Step Act of 2018 Risk and Needs Assessment System, presents the Department’s strategic plan to fully and completely implement the System in the field. It also includes an agenda for continued engagement with experts, stakeholders, and the public on the System. Te chapter concludes by describing the significant resources that the Department of Justice is expending and will expend to implement the System.

July 19, 2019 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (2)

Tuesday, July 16, 2019

New Pew report spotlights state changes in community supervision and revocations

The folks from Pew have this notable new report fully titled "To Safely Cut Incarceration, States Rethink Responses to Supervision Violations: Evidence-based policies lead to higher rates of parole and probation success." Here is the document's "Overview":

Recent research from The Pew Charitable Trusts found that about 4.5 million people in the United States are on community supervision as of 2016.  Probation and parole provide a measure of accountability while allowing those who would otherwise have been incarcerated or have already served a term behind bars to meet their obligations to their families, communities, and victims.

People under supervision are expected to follow a set of rules, such as keeping appointments with probation or parole officers, maintaining employment, not using alcohol or other drugs, and paying required fees. Failure to follow the rules — referred to as technical violations—may result in revocation of the supervision and in some cases a term of incarceration.  A 2019 report by the Council of State Governments showed that technical violations account for almost 1 in 4 admissions to state prison and $2.8 billion in annual incarceration costs.

Such technical revocations are costly, and failure to comply with supervision conditions does not necessarily indicate that a person presents a public safety threat or will engage in new criminal activity.  Further, although studies have not demonstrated that incarcerating people for breaking the rules of supervision reduces recidivism, they have found that long periods of incarceration can make re-entry more difficult, causing people to lose their jobs, homes, and even custody of their children.

This brief examines policies that states implemented through the Justice Reinvestment Initiative (JRI) that have reduced technical revocations, highlights some of the results of those changes, and provides sample legislation for each policy.  JRI is a public-private partnership among Pew, the U.S. Department of Justice’s Bureau of Justice Assistance, state governments, and technical assistance providers; it seeks to improve public safety and control costs by prioritizing prison space for people sentenced for the most serious offenses and investing in evidence-based alternatives to incarceration and other programs shown to reduce recidivism.  These state efforts have not been without challenges, and more can be done to improve supervision outcomes.  Nevertheless, the examples provided show that states can take meaningful steps to reduce prison populations and protect public safety while strengthening systems of supervision and services in the community.

July 16, 2019 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Wednesday, July 10, 2019

Of note of late from the Collateral Consequences Resource Center

Regular readers know I regularly urge folks to regularly check out the work and commentary over at the Collateral Consequences Resource Center, and the last few weeks have brought a number of notable posts that seemed valuable to flag here:

July 10, 2019 in Collateral consequences, Reentry and community supervision | Permalink | Comments (0)

Tuesday, July 09, 2019

More coverage prisoner reentry issues as FIRST STEP Act's "good time" fix approaches

Prior FIRST STEP Act implementation posts (linked below) noted the delayed application of the Act's "good time" fix, which provides that well-behaved prisoners now get a full 15% credit for good behavior amounting to up to 54 days (not just 47 days) per year in "good time."   And in this post last month, I noted press coverage and efforts surrounding this "good time" fix as it gets closer to kicking in this month (assuming the Attorney General complies with a key deadline in the Act).  This press coverage continues with this Fox News piece headlined "Thousands of ex-prisoners to reunite with their families this month as part of First Step Act," and here are excerpts therefrom:

More than 2,200 federal inmates are returning to their families this month from behind bars under the bipartisan prison reform bill President Trump signed into law last year, according to policy experts and prisoner advocates involved in the effort.

This month will see the largest group to be freed so far under a clause in the First Step Act that reduces sentences due to "earned good time."  In addition to family reunification, the formerly incarcerated citizens, 90 percent of whom have been African-American, hope to get employment opportunities touted by Trump last month at the White House as part of the "Second Chance" hiring program.

"We’re a nation that believes in redemption," the president said, noting Americans with criminal backgrounds are unemployed at rates up to five times the national average, which was around 3.8 percent earlier this year. "You're gonna have an incredible future."

The Trump Administration has asked the private sector to help the ex-prisoners reacclimate to their newfound freedom with jobs and housing in one of the largest criminal justice public-private-partnerships ever assembled.

Kim Kardashian West, who successfully lobbied President Trump to free Alice Johnson, a great-grandmother who was serving a life sentence convicted of drug trafficking for a first-time, non-violent drug offense, announced a partnership with rideshare organization Lyft to hand out gift cards for reformed criminals to get to and from job interviews as transportation can be a barrier. "I just want to thank the president for really standing behind this issue and seeing the compassion that he's had for criminal justice has been really remarkable," the "Keeping Up with the Kardashians" star said during a Second Chance Hiring and Re-entry event at the White House in June....

Matthew Charles, the first inmate released from the program and recognized by Trump for being a “model citizen,” told “America’s Newsroom” barriers to employment and housing need to be “eliminated” so former inmates don’t find themselves back in prison.  The Trump Administration has a broad amount of support across governmental departments from labor to DOJ to DOE, as well as governors across the country streamlining state services in order to reduce the barriers Charles mentioned.

This article seems to imply that ninety percent of those who will be released from prison soon thanks to the "good time" fix are African-American, but that racial statistic actually relates to the distinct group of prisoners who have received reductions in their crack sentences due to a different provision in the FIRST STEP Act.  The group getting relief thanks to the operation of the "good time" fix later this month is likely to be more closely representative of the entire federal prison population (which is, very roughly speaking, about 1/3 white, 1/3 black, and 1/3 Latino).  And, as noted in another recent press article, a good number of non-citizen offenders will be deported upon their release from prison.

Prior related posts:

July 9, 2019 in FIRST STEP Act and its implementation, Prisons and prisoners, Race, Class, and Gender, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (0)

Friday, July 05, 2019

Emphasizing why community supervision realities must be focal point for criminal justice reforms

As noted in this post, last month the the Council of State Governments Justice Center produced this dynamic report spotlighting that a large percentage of all state prison admissions "are due to violations of probation or parole for new offenses or technical violations" and that "technical violations, such as missing appointments with supervision officers or failing drug tests, account"for almost a quarter of all state prison admissions.  Fittingly, I have recently seen two commentaries highlighting this CSG report to stress the importance of criminal justice reform efforts giving attention to this piece of the system.  Here are links to these pieces and a snippet therefrom:

From The Hill, "Want to cut the prison population?  Start by tackling probation reform" by Nila Bala:

Sadly, imprisoning technical violators often drives them even deeper into the criminal justice system. With a prison sentence, individuals can lose their jobs, their homes, and their children, which are all of the important social supports they had formed in their community, making them more likely to return to crime.  Imprisoning individuals for technical violations is also costing taxpayers to the tune of $2.8 billion in incarceration costs.

We should save prison beds for those who have committed serious and violent offenses instead of for those who have broken curfew or failed to pay a probation fee. Instead of imprisoning technical violators, we should hold them accountable in the community in ways that do not harm public safety.  By eliminating prison terms for technical violations, or at least by capping the length of their prison stays, states can work to reduce their prison numbers in a significant way.  Along with the reform of supervision conditions, we can work to limit probation to those who really need it and to divert the many lower risk individuals away from the system altogether.

If there is one foundational value that we can adopt in the criminal justice system to change its ethos, it is human dignity. It should not fall by the wayside when people are released from prison.  It is even more important as we welcome individuals back into the social fabric of our communities. The Council of State Governments report guides states in asking how they can limit the supervision to prison pipeline.  With this data, states hold the potential to reform their supervision practices in ways that improve public safety, yield valuable cost savings, and respect the human dignity of all.

From USA Today, "As candidates search for criminal justice talking points, parole and probation reform should top list" by Megan Quattlebaum and Juliene James:

Instead of moving people away from prison, the use of parole and probation is a prime contributor to still stubbornly high incarceration rates. This undermines people’s ability to reintegrate into a free society after conviction.

The nation can and should focus efforts and resources on reducing new criminal behavior. By keeping people out of prison, we can better ensure that they keep their jobs, stay connected to their families and have a fair chance at contributing to society.

The nation's probation and parole disproportionately burdens poor and minority communities. Black Americans account for more than 30% of the people on probation and parole, despite being only 13% of the U.S. population. How can we expect people to live successful lives when they’re under the constant scrutiny of unforgiving criminal justice supervision?

Red and blue states alike have prison systems that are straining under the weight of incarcerating significant numbers of people who have violated their supervision.

State lawmakers need to start looking at their own statistics and asking whether probation and parole are serving their intended goals. What types of new offenses are responsible for supervision revocations? What practices and programs can discourage people under supervision from committing new crimes? What is a better way to handle technical violations?

A few prior recent related posts:

July 5, 2019 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

Wednesday, July 03, 2019

"Language matters for justice reform"

The title of this post is the headline of this notable recent Hill commentary authored by Deanna Hoskins. I recommend the whole piece, and here is an excerpt:

Words such as offenders, convicts, prisoners and felons have existed in our lexicon for decades if not centuries.  But in recent years people have begun speaking out against the use of these dehumanizing terms.  Eddy Ellis, the late justice reform leader, penned a letter more than 15 years ago that ignited a movement demanding an end to dehumanizing language. He wrote, “The worst part of repeatedly hearing your negative definition of me is that I begin to believe it myself ‘for, as a man thinketh in his heart, so is he.’ It follows, then, that calling me inmate, convict, prisoner, felon, or offender indicates a lack of understanding of who I am, but more importantly what I can be.”

Movement leaders have long-recognized Mr. Ellis’s call to use humanizing language — but journalists, elected officials, and people new to the field must recognize this and make the shift as well.  In some state corrections systems, offensive terms such as “inmate” and “offender” have been banned from prisons.  A few years ago, the Department of Justice Office of Justice program that oversees criminal justice efforts announced that it would no longer use the word felon or convict in any of its communications and grant solicitations, instead using “a person who committed a crime.”  Resources including Mr. Ellis’ letter, the Social Justice Phrase Guide and The Opportunity Agenda’s toolkit are readily available to help people understand humanizing “people-first” language and why it’s important.

When we no longer define someone in the media or other arenas as “other,” we shift culture and policies toward human rights and dignity.  By making a conscious effort to change, we can use language that addresses injustice without dehumanizing people — especially black and brown people facing disproportionate discrimination after a record. Several years ago racial justice advocates, successfully stopped media outlets such as the Associated Press from using the phrase “illegal immigrant” which implied that a person’s existence violated the law.  Doing so brought attention to the mistreatment and human rights violations experienced by immigrants seeking refuge in this country.

We can achieve the same in the justice space. We must all commit to using terms such as “formerly incarcerated or incarcerated person” or “person with a felony conviction” instead of “ex-con,” “felon,” or “inmate.”  By doing so we make a conscious effort to recognize and respect people’s humanity.  To do otherwise only reinforces the second-class status we relegate upon many people in this country and therefore stalls our efforts toward equal justice for all.

I am quite sympathetic to the spirit and substance of this commentary, but I fear I will continue to struggle to move away from short-hand terminology like offender and prisoner (rather than person who committed an offense or person in prison).  

July 3, 2019 in Offender Characteristics, On blogging, Race, Class, and Gender, Reentry and community supervision | Permalink | Comments (2)

Monday, July 01, 2019

"Beyond the Algorithm Pretrial Reform, Risk Assessment, and Racial Fairness"

The title of this post is the title of this notable new report released by the Center for Court Innovation and authored by by Sarah Picard, Matt Watkins, Michael Rempel and Ashmini Kerodal. Here is its introduction: 

Pretrial detention, often resulting from a defendant’s inability to afford bail, is one of the primary drivers of incarceration nationwide. The Bureau of Justice Statistics estimates that two out of three people in local jails in 2016 were held while awaiting trial, having not yet been convicted of a crime.  Jurisdictions looking to safely reduce their use of bail and pretrial detention have increasingly turned to automated or actuarial risk assessments.  These tools employ a mathematical formula, or algorithm, to estimate the probability of a defendant incurring a new arrest or failing to appear in court.  Typically, in a risk assessment, defendants’ criminal history, criminogenic needs, and/or basic demographic information, such as age and gender, are weighted and combined, generating a score which can be used to group defendants into risk categories ranging from low to high.

With the aid of better information about the defendants who appear before them, judges, in theory, can make more consistent decisions regarding pretrial release and bail.  For example, jurisdictions that use risk assessments may be more likely to consider pretrial release for defendants in lower-risk categories, or pretrial supervision in the community for higher-risk defendants.  In cases where victim or community safety is a concern, risk assessment may provide guidance regarding the need for bail or detention hearings.

The appeal of pretrial risk assessment — especially in large, overburdened court systems — is of a fast and objective evaluation, harnessing the power of data to aid decision-making.  Research suggests that actuarial risk assessments are more accurate than decisions made by criminal justice officials relying on professional judgment alone.  By intervening in a process historically driven by subjective decisionmaking, risk assessments arguably act as a corrective to a system plagued by bias, as witnessed in the racial disparities long seen in incarceration rates across the country.

That said, important objections have been raised that, far from disrupting racial biases in the criminal justice system, risk assessments unintentionally amplify them, only this time under the guise of science.  The debate is still unresolved, but from a justice system practitioner’s perspective — let alone that of a defendant — the stakes are urgent.

What follows are the results of an empirical test of racial bias in risk assessment and, based on an original analysis, a consideration of whether there are policy-level solutions that could conserve the benefits of risk assessment, while also addressing valid concerns over racial fairness.

July 1, 2019 in Procedure and Proof at Sentencing, Race, Class, and Gender, Reentry and community supervision | Permalink | Comments (0)

Saturday, June 29, 2019

"Recidivism of Felony Offenders in California"

The title of this post is the title of this intricate new report from the Public Policy Institute of California. Here is part of the report's summary:

California has undertaken numerous corrections reforms in the past decade — including public safety realignment in 2011 and Proposition 47 in 2014 — in hopes of reducing the prison population, maintaining public safety, and improving persistently high recidivism rates.  These reforms lowered incarceration levels, and in their aftermath, crime rates have fluctuated.  Recidivism rates provide another important window into public safety and the effectiveness of correctional interventions under these policy changes.

For the first time, this report provides recidivism rates for all types of felony offenders in California — including those sentenced to prison, jail only, jail followed by probation, or probation only.  Previously, statewide recidivism outcomes could only be tracked for individuals leaving prison custody.  This study draws on unique data from 12 representative counties, allowing us to estimate two-year recidivism rates for felony offenders released in the four years following realignment from October 2011 to October 2015.  We focus on felony offenders to provide insight into outcomes for those who have been convicted of more severe offenses.

Our analysis of recidivism relies on rearrest and reconviction rates, which are often used to capture changes in reoffending in response to a policy change.  However, it is important to note that these rates may also reflect changes in the practices of criminal justice agencies.  For example, if a policy change led to a shift in policing strategies, such as reduced enforcement for drug possession offenses, we may observe changes in rearrest rates even if there is no change in the underlying behavior of former offenders. We find:

  • Overall recidivism rates have declined for felony offenders. The share of felony offenders rearrested for any offense within two years declined somewhat from 68 percent to 66 percent over the four-year period.  The two-year reconviction rate for any offense dropped substantially from 41 percent to 35 percent.
  • Reductions in recidivism rates were largest for felony offenses. The share of offenders rearrested for a felony offense decreased moderately from 56 percent to 53 percent in the four years after realignment. The felony reconviction rate dropped markedly from 30 percent to 22 percent.  These reductions were concentrated in later years and may be linked to Proposition 47.
  • Rearrest rates for felony offenses increased toward the end of the period. When we examine the last several months for which we have data, we see that 50 percent of individuals released in June 2015 were rearrested for felonies within two years, compared with 53 percent for those released in October 2015....
  • Individuals released from prison had the highest reconviction rates. This group also served the longest and most costly incarceration terms. This finding is consistent with previous research that has found little evidence linking more severe sanctions to lower recidivism.
  • Recidivism rates are likely to be related to multiple factors. Offender behavior is one factor. But policy changes can also play a role in that they may affect the practices of criminal justice agents, such as police officers and district attorneys. More and better data are needed to pinpoint the relevant causes of changes in recidivism.

Additional efforts to improve our understanding of the relationships among policy, implementation, and recidivism outcomes are essential to move the state toward a more evidence-based criminal justice system.  Facilitating better data connections across correctional institutions, intervention programs, and law enforcement would help further the state’s goals of improving public safety, reducing costs, and ensuring equity in its correctional systems.

June 29, 2019 in Data on sentencing, Reentry and community supervision | Permalink | Comments (1)

Wednesday, June 19, 2019

"Confined and Costly: How Supervision Violations Are Filling Prisons and Burdening Budgets"

The title of this post is the title of this notable new dynamic online report from the Council of State Governments Justice Center. Everyone should check out the link to the report to see the dynamic features built therein, and here is some of the text from the report (with all caps from the original):

Probation and parole are designed to lower prison populations and help people succeed in the community. New data show they are having the opposite effect. Until now, national data regarding the impact of probation violations on prison populations have been unavailable, resulting in a lopsided focus on parole. The Council of State Governments (CSG) Justice Center recently engaged corrections and community supervision leaders in 50 states to develop the first complete picture of how probation and parole violations make up states’ prison populations. The analysis revealed a startling reality.

45% OF STATE PRISON ADMISSIONS nationwide are due to violations of probation or parole for new offenses or technical violations.

Technical violations, such as missing appointments with supervision officers or failing drug tests, account for nearly 1/4 OF ALL STATE PRISON ADMISSIONS.

On any given day, 280,000 PEOPLE in prison — nearly 1 IN 4 — are incarcerated as a result of a supervision violation, costing states more than $9.3 BILLION ANNUALLY.

Technical supervision violations account for $2.8 BILLION of this total amount, and new offense supervision violations make up $6.5 BILLION. These figures do not account for the substantial local costs of keeping people in jail for supervision violations.

IN 13 STATES, MORE THAN 1 IN 3 PEOPLE in prison on any given day are there for a supervision violation.

IN 20 STATES, MORE THAN HALF OF PRISON ADMISSIONS are due to supervision violations.

Variation in these proportions across states is shaped by the overall size of each state’s supervision population, how violations are sanctioned, whether those sanctions are the result of incarceration paid for by the state or county, and how well state policy and funding enable probation and parole agencies to employ evidence-based practices to improve success on supervision.

June 19, 2019 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (4)

"Testing Periods and Outcome Determination in Criminal Cases"

The title of this post is the title of this important new article authored by Fiona Doherty and now available via SSRN. Here is its abstract:

This Article introduces the concept of “Testing Periods” to explain how U.S. courts sort criminal defendants for incarceratory and non-incarceratory results. A Testing Period is a time period during which a criminal defendant agrees to abide by a set of prospective rules (such as avoiding “dirty urines” and remaining “clean” from drugs and alcohol), typically, but not always, as a function of plea bargaining.  Prosecutors and judges set the rules, and defendants must demonstrate that they can follow the rules to pass the test and successfully avoid prison.  Juries play no role in the system, and due process requirements diverge sharply from traditional norms.

The outcomes of most criminal cases are now determined through Testing Periods, which go by varied names like probation, problem-solving courts, suspended sentences, conditional plea agreements, and deferred adjudication.  The pervasiveness of Testing Periods has changed the orientation of outcome determination in criminal cases away from a retrospective analysis to a prospective one: Outcomes no longer depend on a backward-looking examination of the facts of a criminal charge, but instead on whether a defendant can pass a forward-looking test.  The power to create and administer Testing Periods has become the power to determine who goes to prison and for what reason.  The Article concludes that the widespread use of Testing Periods has recreated dynamics from a much older method of resolving criminal cases: the testing models used in the medieval ordeal system to separate “clean” defendants from “dirty” ones, and the “worthy” from the “unworthy.” 

June 19, 2019 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Thursday, June 13, 2019

White House promotes efforts to provide job opportunities for former prisoners

Continuing its energetic criminal justice reform efforts, the White House today held a public event to promote reentry support for former prisoners.  This AP piece provides these (celebrity) highlights:

Reality star-turned-criminal justice reform advocate Kim Kardashian West returned to the White House on Thursday to help President Donald Trump promote efforts to help those leaving prison get jobs and stay on track.

At an East Room event attended by Cabinet secretaries, activist and formerly incarcerated people, Kardashian West announced the creation of a new ride-sharing partnership that will give former prisoners gift cards to help them get to and from job interviews, work and family events....

Trump pronounced himself a fan of Kardashian West’s advocacy, praising her genes and declaring, “I guess she’s pretty popular.” And he marveled at the passage of the First Step Act, which he signed into law late last year....

The White House has since been working with various companies, advocacy groups and federal agencies to try to give prisoners released early the tools and jobs they need to successfully adjust to life outside prison so they don’t wind up behind bars again....

Trump has embraced the efforts originally pushed by his son-in-law and senior adviser Jared Kushner to make changes to the criminal justice system, using them to highlight the low unemployment rate and paint himself as a president focused “on lifting up all Americans.”  It’s a deeply personal issue for Kushner, whose father spent time in federal prison when he was younger.

In addition to the ride share vouchers, Trump announced several other measures, including stepped-up efforts by the Federal Bureau of Prisons to work with businesses to help line up jobs for those being released and additional funds for states to support companies that hire former inmates.  He said his administration hopes to cut the unemployment rate for formerly incarcerated people to single digits within five years.  “Now we much make sure that the Americans returning from prison get a true second chance,” he said.

In addition, the White House has released the following fact sheet and remarks:

June 13, 2019 in Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

US Commission on Civil Rights releases big report on "Collateral Consequences: The Crossroads of Punishment, Redemption and the Effects on Communities"

Download (29)The US Commission on Civil Rights has today released this huge new report titled "Collateral Consequences: The Crossroads of Punishment, Redemption and the Effects on Communities."  The report runs over 150 pages and provide a comprehensive modern accounting of collateral consequences along with reform recommendations.  The introductory letter from the Commission Chair at the outset of the report provide this summary:

This report provides an overview of the relevant data and arguments for and against the imposition of collateral consequences on people with criminal records.  Each year, federal and state prisons release more than 620,000 people to return to their communities.  While these individuals have often completely exited criminal supervision (for example, through a prison sentence or probation), individuals with criminal records still face potentially thousands of collateral consequences upon reentering society.  These collateral consequences are sanctions, restrictions, or disqualifications that attach to a person because of the person’s criminal history.  For example, individuals with criminal histories can face barriers to voting, jury service, holding public office, securing employment, obtaining housing, receiving public assistance, owning a firearm, getting a driver’s license, qualifying for financial aid and college admission, qualifying for military service, and maintaining legal status as an immigrant.  The reach of each collateral consequence extends past people with criminal records to affect families and communities.

The Commission majority (six Commissioners in favor, one Commissioner in opposition) approved key findings including the following: Collateral consequences exacerbate punishment beyond the criminal conviction after an individual completes the court-imposed sentence.  Valid public safety bases support some collateral consequences, such as limitations on working with children for people convicted of particular dangerous crimes.  Many collateral consequences, however, are unrelated either to the underlying crime for which a person has been convicted or to a public safety purpose. When the collateral consequences are unrelated in this way, their imposition generally negatively affects public safety and the public good.

Evidence shows harsh collateral consequences unrelated to public safety increase recidivism by limiting or by completely barring formerly incarcerated persons’ access to personal and family support.  In addition, the general public, attorneys, and the courts often lack knowledge of what the totality of the collateral consequences are in their jurisdiction, how long they last, and whether they are discretionary or mandatory, or even if they are relevant to public safety or merely an extended punishment beyond a criminal sentence.  This absence of public and judicial awareness of collateral consequences of conviction undermines any deterrent effect that might flow from attaching such consequences, separate and apart from the punishment itself, to criminal convictions.  The processes people must undertake to restore rights, for example through applications for pardon or for judicial record sealing, are often complicated, opaque, and difficult to access.

The Commission majority voted for key recommendations, including the following: Collateral consequences should be tailored to serve public safety.  Policymakers should avoid punitive mandatory consequences that do not serve public safety, bear no rational relationship to the offense committed, and impede people convicted of crimes from safely reentering and becoming contributing members of society.  Jurisdictions that impose collateral consequences should periodically review the consequences imposed by law or regulation to evaluate whether they are necessary to protect public safety and if they are related to the underlying offenses.

The Commission majority specifically calls on Congress to limit discretion of public housing providers to prevent them from categorically barring people with criminal convictions from access to public housing; lift restrictions on access to student loans based on criminal convictions, except for convictions related to financial fraud; eliminate restrictions on TANF and SNAP benefits based on criminal convictions; and require federal courts to give comprehensive notice of federal restrictions on individuals’ rights before guilty plea entry, upon conviction, and upon release from incarceration.

June 13, 2019 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Tuesday, June 11, 2019

Educating everyone about the value of educating prisoners

I have noticed in the last few days and weeks a number of commentaries making the case for ensuring prisoners have access to educational opportunities while behind bars and explaining why Pell grants should be one way to help do so.  I recommend all of these pieces in full, and here I will just be content with a round up of headlines and links:

In addition, this local article from Utah -- headlined "Even violent inmates get out. Here’s why Utah’s Sen. Mike Lee and others think they should have access to college courses in prison." -- highlights why at least one notable Senator is eager to get prisoners access to Pell grants.

June 11, 2019 in Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Friday, June 07, 2019

"Invisible Stripes: The Problem of Youth Criminal Records"

The title of this post is the title of this paper recently posted to SSRN and authored by Judith McMullen. Here is its abstract:

It is common knowledge in American society that persons who have criminal records will have a more difficult path to obtaining legitimate employment.  Similarly, conventional wisdom acknowledges the unfortunate fact that young people, on average, are more prone to engage in risky, impulsive, and other ill-advised behavior that might result in brushes with law enforcement authorities.  This article addresses the difficult situation faced by people whose now disabling criminal records were attained while they were under the age of 21.  Not only do such individuals face stigma and possible discrimination from potential employers, the efforts of today’s young people to “go straight” are hampered by nearly unlimited online access to records of even the briefest of encounters with law enforcement, even if those encounters did not result in conviction.

This article examines the broad scope and troubling effects of the intersection between policies attempting to “reform” youthful offenders, and policies giving any curious citizen access to records about a person’s youthful indiscretions, no matter how minor.  The article concludes that current practices are inconsistent with what we know about the development of young people, are inconsistent with developing U.S. Supreme Court jurisdiction, and are undermining the social goal of rehabilitating youthful offenders, and suggests that we need to restrict access to and use of information about contacts that offenders under the age of 21 have had with the criminal justice system.

June 7, 2019 in Collateral consequences, Offender Characteristics, Reentry and community supervision | Permalink | Comments (0)

Thursday, June 06, 2019

Critically reviewing how the Bureau of Justice Statistics has reviewed its sex offender recidivism data

Last week I blogged here about the Bureau of Justice Statistics' press release providing highlights of this big report titled "Recidivism of Sex Offenders Released from State Prison: A 9-Year Follow-Up (2005-14)."  A helpful reader made sure I did not miss this notable new piece by Wendy Sawyer over at Prison Policy Initiative reacting to these documents.  This posting is fully titled "BJS fuels myths about sex offense recidivism, contradicting its own new data: A new government report reinforces harmful misconceptions about people convicted of sex offenses. Here's our take on how to parse the data."  I recommend the piece in full, and here are excerpts:

A new report released by the Bureau of Justice Statistics should put an end to this misconception: The report, Recidivism of Sex Offenders Released from State Prison: A 9-Year Follow-Up (2005-2014), shows that people convicted of sex offenses are actually much less likely than people convicted of other offenses to be rearrested or go back to prison.

But you wouldn’t know this by looking at the report’s press release and certain parts of the report itself, which reinforce inaccurate and harmful depictions of people convicted of sex offenses as uniquely dangerous career criminals.  The press release and report both emphasize what appears to be the central finding: “Released sex offenders were three times as likely as other released prisoners to be re-arrested for a sex offense.” That was the headline of the press release.  The report itself re-states this finding three different ways, using similar mathematical comparisons, in a single paragraph.

What the report doesn’t say is that the same comparisons can be made for the other offense categories: People released from sentences for homicide were more than twice as likely to be rearrested for a homicide; those who served sentences for robbery were more than twice as likely to be rearrested for robbery; and those who served time for assault, property crimes, or drug offenses were also more likely (by 1.3-1.4 times) to be rearrested for similar offenses. And with the exception of homicide, those who served sentences for these other offense types were much more likely to be rearrested at all.

The new BJS report, unfortunately, is a good example of how our perception of sex offenders is distorted by alarmist framing, which in turn contributes to bad policy. That this publication was a priority for BJS at all is revealing: this is the only offense category out of all of the offenders included in the recidivism study to which BJS has devoted an entire 35-page report, even though this group makes up just 5% of the release cohort. This might make sense if it was published in an effort to dispel some myths about this population, but that’s not what’s happening here.

Prior related post:

June 6, 2019 in Detailed sentencing data, National and State Crime Data, Reentry and community supervision, Sex Offender Sentencing, Who Sentences | Permalink | Comments (3)

"Shattering the Shackles of Collateral Consequences: Exploring Moral Principles and Economic Innovations to Restore Rights and Opportunity"

C1_2019_Collateral_Consequences_Report_05172019_102_with_outline_RGBThe title of this post is the title of this notable new report from the National Association of Criminal Defense Lawyers (NACDL). Here is the report's executive summary:

On August 23–25, 2018, NACDL hosted its 17th Annual State Criminal Justice Network Conference and Presidential Summit in Atlanta, Georgia.  The Conference — Shattering the Shackles of Collateral Consequences: Exploring Moral Principles and Economic Innovations to Restore Rights and Opportunity — examined the destructive effect that a vast network of penalties, debarments, and disabilities following a criminal conviction has on the millions of people who have come in contact with the criminal justice system. The Conference also explored the disparate impact that these collateral consequences have on communities of color.  At the same time, the Conference highlighted the groundbreaking work that is helping people break free from the shackles while providing a roadmap for national reform.

NACDL’s Executive Director, Norman L. Reimer, described the path to reform as following the emerging consensus that we must restore humanity to our criminal justice system. In pursuit of that goal, the Conference included more than just criminal defense lawyers; it brought together a community of prosecutors, judges, formerly incarcerated people, probation officers, social workers, and activists.  The 60th President of NACDL, Drew Findling, welcomed this diverse group of Conference participants and attendees to “an incredible congregation of people [who] all care about one thing: justice.”  These common grounds of justice and humanity formed the basis and set the tone for the entire Conference.

To facilitate the human narrative of justice through shared stories and lived experiences, every panel at the Conference included at least one person who was previously incarcerated in America.  Most panels included more than one formerly incarcerated person, and a few panels consisted entirely of formerly incarcerated people.  While there was some disagreement about the best terminology, resources, and methods to use in the fight against collateral consequences, the Conference represented an inclusive, humanistic approach to discussing the difficult topics of racism, morality, and social responsibility within the criminal justice system and the public at large.  Some of the broad recommendations for reducing the impact of collateral consequences included:

• Building up resources in communities of color

• Funding better education systems

• Protecting and asserting the right to vote

• Increasing awareness of mental health issues

• Reforming law enforcement education to foster improved community relations

• Building coalitions at the local, state, and national levels

• Rehabilitating and educating people while they are incarcerated

• Making prisons and prosecutions more transparent

• Banning the box on employment applications that asks about prior criminal records

• Providing more employment opportunities for people getting out of prison

• Sharing success stories and changing the narrative about people who have been incarcerated

This report is intended to facilitate more discussion and to inspire further action on these issues so that anyone — not just the Conference attendees and participants — can work to shatter the shackles of collateral consequences.

June 6, 2019 in Collateral consequences, Reentry and community supervision | Permalink | Comments (0)

Wednesday, June 05, 2019

Curious (but still encouraging) discussion of expected release of prisoners after FIRST STEP Act "good time" fix becomes operational

In a few older FIRST STEP Act implementation posts (linked below), I flagged the statutory provision in the Act that delayed the immediate application of its "good time" fix.  (This fix provides that well-behaved prisoners will now get a full 15% credit for good behavior amounting to up to 54 days (not just 47 days) per year in "good time.")  Though folks had been hoping to fix the fix so that it could be immediately applicable, now enough time has passed that we are getting close to when the "good time" fix is very likely to kick in (assuming the Attorney General complies with a key deadline in the Act).   The coming July arrival of the "good time" fix kicking in has prompted this notable new Marshall Project piece headlined "White House Pushing to Help Prisoners Before Their Release."  Here are excerpts:

The White House is racing to help an estimated 2,200 federal prisoners line up work and housing before they are released next month, according to several policy experts and prisoner advocates who have been involved in the effort.

The early release is made possible by the First Step Act, a federal law passed with bipartisan support in December that is aimed at refocusing the criminal justice system on rehabilitation.  The prisoners scheduled to be let out in July are the largest group to be freed so far.  Their sentences are being reduced thanks to a clause that goes into effect next month, which effectively increased the amount of credit prisoners could get for good conduct in custody....

With weeks remaining before thousands more prisoners walk free, the Trump administration has assigned the U.S. Probation Office and the Department of Labor to help people prepare to return home.  White House officials are also seeking as much help as possible from the private sector, according to policy experts involved in the effort. They’ve asked major corporations to make pledges to hire the ex-prisoners while pushing the Social Security Administration to make sure each prisoner has a Social Security card needed for employment.  The Salvation Army is providing help with housing.  White House officials have discussed asking ride-share companies and public transportation agencies to offer free rides, the policy experts and advocates for prisoners said.

The Society for Human Resource Management, a national membership association for people working in human resources, has been recruited to work with states and private employers to offer education, legal advice and guidance on how companies can hire ex-prisoners. President and CEO Johnny C. Taylor Jr. said his organization had already begun that work last year but has ramped up a messaging campaign to let companies know that more than 2,000 employable people are about to start asking for jobs.“We need them, and they need us,” he said....

Outside groups that lobbied for the First Step Act say preparing prisoners for the workforce has never been more important, with unemployment at record lows and businesses scrambling to fill positions.“We know this administration is focused on the roughly 2,200 federal prisoners who are expected to be released this summer under the First Step Act,” said Mark Holden, senior vice president of Stand Together, a justice reform group funded by billionaire industrialist Charles Koch. “We all share the same vision that those leaving prison have access to basic needs and services that will help them safely return home and become contributing members of society.”

In this twitter thread, Kevin Ring of FAMM highlights some reasons I find this press piece curious, such as the fact that it provides little statistical or substantive contexts. One would not know, for example, that roughly 1000 federal prisons are released on an average week and that over 50,000 persons are released from state and federal prisons each month. And, as Kevin notes, a lot of folks who will now be getting the benefit of the "good time" fix may already be on home confinement and/or in halfway houses and working on employment prospects.

That all said, I still want to trump and praise the fact that the White House is actively involved now in trying to help ensure good outcomes for FIRST STEP Act beneficiaries and is calling upon both government agencies and private entities to help with this effort.  In addition to increasing the likelihood of good outcomes, this investment by the White House and these broader stories can and should further demonstrate that criminal justice reform does not and cannot stop when a new law gets passed.  Implementation, and follow-up by all sorts of players, is critical to success and requires persistent energy and commitment. 

(As an aside, Kevin's tweets note that the biggest number of released-at-once prisoners in the federal system came after the 2013 drug guideline reductions were made retroactive, which was partially supported by the Obama Administration.  That point in this context now has me wondering if the Obama Administration took any special steps to help those released federal prisoners or those who got out via Prez Obama's clemency initiative.)

Prior related posts:

June 5, 2019 in FIRST STEP Act and its implementation, Reentry and community supervision, Who Sentences | Permalink | Comments (2)

Monday, June 03, 2019

Splitting 5-4 in a distinctive way, SCOTUS rules against defendant seeking to avoid tolling of supervised-release term

The Supreme Court handed down four opinions this morning, but only one came in a criminal case and the opinion was not in one of the cases that so many criminal justice court-watchers are eagerly waiting for (like Gundy or Gamble or Haymond).  But the ruling this morning in Mont v. US , No. 17-8995 (S. Ct. June 3, 2019) (available here), on a technical issue of when federal supervised release terms run, should capture the attention of SCOTUS watchers because of the distinctive (and I think unprecedented) line-up of the votes in this 5-4 split opinion: 

THOMAS, J., delivered the opinion of the Court, in which ROBERTS, C. J., and GINSBURG, ALITO, and KAVANAUGH, JJ., joined. SOTOMAYOR, J., filed a dissenting opinion, in which BREYER, KAGAN, and GORSUCH, JJ., joined.

The ruling of the Court begins and ends this way:

This case requires the Court to decide whether a convicted criminal’s period of supervised release is tolled — in effect, paused — during his pretrial detention for a new criminal offense. Specifically, the question is whether that pretrial detention qualifies as “imprison[ment] in connection with a conviction for a Federal, State, or local crime.” 18 U. S. C. §3624(e). Given the text and statutory context of §3624(e),we conclude that if the court’s later imposed sentence credits the period of pretrial detention as time served for the new offense, then the pretrial detention also tolls the supervised-release period.....

In light of the statutory text and context of §3624(e), pretrial detention qualifies as “imprison[ment] in connection with a conviction” if a later imposed sentence credits that detention as time served for the new offense.  Such pretrial detention tolls the supervised-release period, even though the District Court may need to make the tolling determination after the conviction.  Accordingly, we affirm the judgment of the Sixth Circuit.

The dissent begins this way:

A term of supervised release is tolled when an offender “is imprisoned in connection with a conviction.” 18 U. S. C. §3624(e).  The question before the Court is whether pretrial detention later credited as time served for a new offense has this tolling effect.  The Court concludes that it does, but it reaches that result by adopting a backwardlooking approach at odds with the statute’s language and by reading the terms “imprisoned” and “in connection with” in unnatural isolation.  Because I cannot agree that a person “is imprisoned in connection with a conviction” before any conviction has occurred, I respectfully dissent.

Though I will need to read the opinion closely to see whether there are some possible broader implications of this ruling, but this case shows yet again that Justice Gorsuch is much more inclined to vote in favor of criminal defendants (in non-capital cases) than other GOP appointees. And here we have Justice Ginsburg proving to be the swing voter delivering a loss to a criminal defendant.

June 3, 2019 in Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, May 22, 2019

"The Second Step Act should give white-collar criminals a chance after release"

The title of this post is the headline of this notable recent Washington Examiner commentary authored by Cassie Monaco.  Here are excerpts:

I will also never forget the day I found out that my husband had been charged with a nonviolent criminal offense.  The emotions that I felt and the pain that I had at that very moment are indescribable, not to mention the feelings of utter shock, knowing that your life will never be the same again.  Today, my husband is serving six and a half years at a federal prison in Colorado.

As the wife of an incarcerated individual, I had two choices: Do I indulge in self-pity, or do I channel my energy and emotions into something more productive? I chose the latter. And so I got involved with national advocacy efforts on criminal justice reform, and I created an organization called A Day Closer, with the sole mission of reducing recidivism by keeping families intact while a loved one is incarcerated.

The First Step Act is providing much needed relief and assistance to many of those incarcerated and their families.  It is also restoring dignity back into our very broken criminal justice system.  However, the act still leaves behind a group that oftentimes gets over looked: individuals convicted of white-collar crimes.

I can understand the lack of sympathy out there for many white-collar criminals, but not all of them are bad people.  In addition to admitting their crimes and apologizing to the victims, they are left financially destroyed, with their professional and personal lives ruined forever....

The First Step Act understandably focuses on relief for drug offenders.  But oftentimes, those offenders do not have the burden of restitution once they are out.  The white-collar group, although they are less likely to fall victim to recidivism, will however be saddled with a life sentence in the form of extraordinary restitution.  They will never be completely free, even after time served. This needs to change.

As the national conversation shifts to the Second Step, lawmakers should sponsor and support legislation that provides some relief with regards to restitution amounts. Meanwhile, by executive order, Trump should return the Office of the Pardon Attorney to its former place under the Executive Office of the President.  Finally, Trump should create an independent commission that advises the president on matters related to Executive Clemency.

The goal is simple: give those that have committed white-collar crimes, admitted to their mistakes, and served their time a real chance to start over and rebuild their lives, without being saddled with the burden that excessive restitution creates.

May 22, 2019 in Fines, Restitution and Other Economic Sanctions, FIRST STEP Act and its implementation, Reentry and community supervision, White-collar sentencing | Permalink | Comments (13)

Sunday, May 19, 2019

Two great new policy briefs from Right on Crime discussing best practices for parole and probation

Marc Levin, who serves as Vice President for Right on Crime, has two great new "Policy Perspective" briefs on parole and probation systems. Below are the titles, links and "Key Points" from the start of both great documents:

Ten Tips for Policymakers for Parole

Key Points

• The criteria for deciding who is paroled should be objective and focused on reducing risks to public safety going forward.

• Parole boards should possess a diverse range of relevant areas of expertise and provide opportunities for meaningful participation by parole candidates and others with an interest in the outcome.

• Parole supervision and reentry should emphasize removing barriers to employment, incentives for performance, quality interactions between parole officers and those they supervise, and avenues for community-based organizations to assist people coming out of prison.

Ten Tips for Policymakers for Improving Probation

Key Points

• Probation can be an alternative or gateway to incarceration.

• Probation should be right-sized to serve only those individuals who require supervision for only the limited time period that their assessment and conduct indicate a continued need for supervision.

• Incentives should drive probation policy, both for agencies and those they supervise.

May 19, 2019 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (0)

Friday, May 10, 2019

Split Eighth Circuit panel explores lifetime supervised release conditions for child porn offender

A helpful reader made sure I did not miss an Eighth Circuit panel's work today in US v. Carson, No. 17-3589 (8th Cir. May 10, 2019) (available here). Like many federal sentencing cases, there are lots of small stories wrapped within the numbing reality of an offender with an affinity for child porn and teenage girls receiving mass punishment: e.g., the defendant here got "only" 20 years in prison when his guideline range called for 30 years; even though facing the real possibility of imprisonment until nearly 2045, for some reason "Carson did not submit his own sentencing memorandum"; counsel at sentencing did not object to broad conditions of lifetime supervised release, so they get reviewed only for plain error.

The heart of the legal dispute on appeal is defendant's claim that sentencing court should have had to provide a distinct analysis and justifications for his special conditions of supervised release, one of which included social media restrictions seemingly comparable to what the Supreme Court stuck down as unconstitutional in Packingham v. North Carolina. Here is a portion of the majority's rejection of the claims on appeal:

We next turn to Carson’s argument that Special Condition 16 (the social media restriction) “suffers the same flaws as the North Carolina statute held to be unconstitutional in Packingham.”  The Supreme Court in Packingham considered the constitutionality of a statute prohibiting registered sex offenders from “access[ing] a commercial social networking Web site where the sex offender knows that the site permits minor children to become members” or from “creat[ing] or maintain[ing] personal Web pages” on such sites.  Packingham, 137 S. Ct. at 1733 (quoting N.C. Gen. Stat. Ann. § 14-202.5(a), (e)).  The Supreme Court held the statute burdened substantially more speech than necessary to further the government’s interests in protecting minors from sexual abuse.  Id. at 1737–38.  The Court reasoned that “to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights,” given the importance of social media for accessing information and communicating with others. Id. at 1737.  Carson argues his court-imposed inability to maintain or create a user account on any social media site falls squarely under the holding of Packingham.

We disagree.  Several of our sister circuits have rejected a similar argument in challenges to supervised release conditions forbidding access to the internet — and effectively to social media sites — without prior approval or monitoring by a court or probation officer.  See United States v. Antczak, 753 F. App’x. 705, 715 (11th Cir. 2018) (unpublished); United States v. Halverson, 897 F.3d 645, 657–58 (5th Cir. 2018); United States v. Browder, 866 F.3d 504, 511 n.26 (2d Cir. 2017); United States v. Rock, 863 F.3d 827, 831 (D.C. Cir. 2017).  These courts have noted Packingham invalidated only a post-custodial restriction and expressed concern that the statute applied even to “persons who have already served their sentence.”  Halverson, 897 F.3d at 658 (quoting Packingham, 137 S. Ct. at 1737).  Because supervised release is part of a defendant’s sentence, Packingham does not render a district court’s restriction on access to the internet during a term of supervised release plain error.  See id.; Rock, 863 F.3d at 831.  We find this reasoning applies with equal force here.  Thus, even assuming the district court’s prohibition on creating or maintaining a social media profile implicates the same First Amendment interests as a restriction on accessing social media altogether, the district court did not commit plain error by imposing Special Condition 16.

And here is the closing paragraph of Judge Kelly's dissent:

I do not minimize the seriousness of Carson’s crimes.  For those he will serve a twenty-year prison term followed by a lengthy term of supervised release.  I also recognize the need to monitor Carson’s conduct upon release.  But Carson was thirty- three at the time of his arrest, and his lifetime term of supervised release could very well last decades. We can only imagine the universe of internet-reliant electronic devices that will pervade everyday life by then.  The length and conditions of Carson’s supervised release may well be justified, but such punishment deserves, at minimum, some reasoned explanation from the sentencing court.  Accordingly, I respectfully dissent.

May 10, 2019 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing, Who Sentences | Permalink | Comments (0)

Tuesday, May 07, 2019

Latest issue of ABA Journal focuses on addressing collateral consequences

0519CVR-250pxI just received my hard copy of the latest issue of the ABA Journal, and I was pleased to discover that its cover has the phrase "Ending mass incarceration won’t succeed without giving people a second chance."  That phrase also serves as the headline for this lead article, which includes these passages:

People like Steve Price — poor, African-American, a high school dropout, raised by a single mom, forced to hustle on the street to survive — fall into a pattern.  They get arrested, go to prison and are released with little or no preparation, counseling or drug treatment.  Most have no job skills, and few employers are willing to hire them because they have a criminal record.  So they wind up going back.  Recidivism is a problem that for decades has continued to spin the revolving door of mass incarceration.

While the United States has consistently put more people in prison than any other country, it has come up short in helping rebuild their lives once they’re released.  More than 600,000 people leave the nation’s prisons every year with little more than a bus ticket and 50 bucks. Within five years, more than half of former state inmates are back inside.

While there’s been a growing bipartisan movement to end mass incarceration, such efforts still must grapple with the increasing number of “decarcerated” individuals.  The national First Step Act, a major criminal justice reform initiative signed by President Donald Trump in December, offers some hope.  It includes reforms that reduce sentences for federal drug crimes and funding for programs to reduce recidivism.  The president in April announced plans for a “Second Step Act” in his fiscal 2020 budget that will focus on re-entry and reducing unemployment for this with criminal records.  But these programs apply only to those convicted of federal crimes.  Most incarcerated people are in state prisons and county jails.  To complicate matters, state and local governments have thousands of laws, regulations and policies that create barriers that even the most determined people have trouble scaling when trying to get a second chance.

Drew Findling, president of the National Association of Criminal Defense Lawyers, has seen this firsthand in 30 years of representing criminal defendants.  “Someone can leave prison, but in many ways, they remain imprisoned.  They can’t get the job that pays a living wage.  They can’t get into an apartment.  They can’t get the loan for a home, they can’t even feel what it’s like to be a normal citizen,” Findling says.  “You realize there are all these punitive measures the government takes that, while it doesn’t keep you caged, it does, in many ways emotionally and professionally and socially, keep you caged.”

According to the National Inventory of Collateral Consequences of Conviction, there are nearly 45,000 measures that can stand in the way of a person with a criminal record seeking to lead a normal, productive life.  These restrictions cover employment, licensing, housing, education, public benefits, credit, loans, immigration status, parental rights, interstate travel and more....

Margaret Love, a Washington, D.C.-based attorney who was the first director of the NICCC, and is now executive director of the Collateral Consequences Resource Center, recalled that what she found was distressing.  “The phenomenon of collateral consequences is, in a sense, a part of the sentence,” she says.  “People get tarred with a criminal record, whether they go to prison or not, and that can be disabling for their entire life.  Until recently, there have been fewer and fewer ways for people to get out from under the cloud of a criminal record.  The fact is that even arrests come up on rap sheets, and they are frequently used to disqualify people.”

While the number of such consequences remains high, efforts to reduce them have been successful.  According to the resource center, 32 states, the District of Columbia and the U.S. Virgin Islands enacted at least 61 laws in 2018 aimed at reducing barriers to successful reintegration for those with criminal records, continuing a trend the center has tracked for the past six years.  By the end of 2018, every state passed laws to address the problem.

This issue of the ABA Journal also includes these companion stories:

May 7, 2019 in Collateral consequences, Reentry and community supervision | Permalink | Comments (1)

Monday, May 06, 2019

Urging Prez candidates to urge bold criminal justice changes looking beyond incarceration levels

Sara Wakefield and Kristin Turney have this notable new Hill commentary headlined "In 2020, we need bold ideas for criminal justice reform too."  Here are excerpts:

As the 2020 election quickly approaches, Democratic candidates are presenting bold ideas about a wide variety of issues including climate change, inequality, national paid leave, filibuster reform, student loans, and Medicare for All. Few ideas are too ambitious for the base, even though many would require major structural changes to American institutions and civic life.

Then, there’s the issue of justice. Criminal justice reform and mass incarceration get talked about, correctly, as racial justice issues that need to be addressed, but no one has proposed radical changes to how we approach crime and punishment in America. It’s time for 2020 candidates to think as boldly about criminal justice as they are about health care and climate change.

Sen. Cory Booker’s (D-N.J.) “Next Step Act” currently comes closest to a bold proposal, taking on police officer training, the conditions of confinement, and expungement procedures. Yet, even this proposal includes the sentencing reforms and reentry assistance proposals we’re used to seeing. Our collective focus, and the focus of popular criminal justice reform laws like the FIRST STEP Act, remains on a late stage of criminal justice contact: incarceration.

Prison incarceration is, of course, a consequential event, but many more millions of people engage with our inefficient and repressive criminal justice system — through arrests, misdemeanor convictions, parole and probation, the bail industry, and the accumulation of fines and fees. People don’t have to be sentenced to prison to have life-altering interactions with the criminal justice system, and our leaders need to think about these experiences too. In 2016, for example, 70 percent of the roughly 646,000 Americans in local jails on any given day had not been convicted of anything, largely remaining in jail due to their inability to make bail or because they violated the conditions of probation and parole....

Presidential candidates should also consider how much our criminal justice system impacts lives after someone has served time. In 2016, almost 7 million people were under some form of correctional supervision, such as parole or probation. The most common reentry proposals are aimed at improving the labor market prospects of the formerly incarcerated. We applaud these efforts, but people who lack health care and a stable home may struggle to find and keep a job. Discussions of health care and housing policy that ignore the formerly incarcerated ignore a population with the most significant health care problems and housing instability in the country....

By focusing on reforming incarceration only, we are obscuring a broader landscape of pain for millions of Americans. To truly begin on a path toward criminal justice reform, we need our leaders to think in terms of new deals, guarantees, and sweeping legislation that could impact more Americans, like they do on climate and health care. The type of country we want to have depends on these decisions.

May 6, 2019 in Campaign 2020 and sentencing issues, Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Saturday, April 27, 2019

Should reform advocates urge Prez Trump to embrace new proposed federal Clean Slate Act as sound Second Step?

Cleanslatecampaign-feature-2The question in the title of this post is prompted by these two recent press stories about federal criminal justice reform:

Let's begin my pitch with excerpts from the first of these pieces:

President Trump began the month hosting a White House celebration with people freed from prison by the First Step Act. He told the April Fools' Day gathering the White House would work on a Second Step Act "right away."  Despite the day, Trump was not joking. But he was also not correct.

Sources tell the Washington Examiner that the White House is in fact not preparing a Second Step Act package to follow the landmark criminal justice reform law, which is Trump's only major bipartisan legislative achievement.  “There’s definitely not a Second Step Act,” said a source who works on White House reform efforts and helped with Trump’s April 1 speech, a draft of which did not mention new legislation.

The White House is focused instead on implementing the First Step Act in a way that denies ammunition to opponents such as Sen. Tom Cotton, R-Ark.  “One of the most important things we do in the second step is to get the first step implemented,” said Mark Holden, general counsel of Koch Industries and a prominent reform advocate.

It is unclear if Trump misspoke when he said: "Today, I am announcing that the Second Step Act will be focused on successful reentry and reduced unemployment for Americans with past criminal records. And that’s what we are starting right away."  A White House official said that Trump "wants to bring more fairness" to the legal system and "you can expect more legislation to address the second steps in the future," but that the First Step Act "will take a year to fully implement," diverting focus from additional legislation....

“There’s a lot of concern that they have to get this right. Folks like Tom Cotton are just waiting for someone to do something stupid,” said the source who has worked on White House efforts. “People are going to want to wait and see how this [First Step Act] works out.”

Because there are so many important elements to the FIRST STEP Act, I think reform advocates are well advised to be laser focused on implementation issues in the short term.  The impact of FIRST STEP is still very much under development as the reach of the new sentencing/prison reforms are being defined by the judiciary and determined by executive branch officials (especially related to the risk/needs tools and prison programming).  It is not unreasonable for legislators to want to assess the initial impact of the new sentencing and prison laws before moving on to further proposals. (This is one reason I am so eager for the US Sentencing Commission to start providing real-time updates on the FIRST STEP Act.  Lawmakers cannot assess the FIRST STEP Act without data on its implementation.)

Further, as the 2020 election season heats up with criminal justice reform already becoming a topic of considerable conversation, the politics surrounding additional sentencing and prison reforms  grow dicier.  The recent commentary by Jared Kushner states that the FIRST STEP Act "nearly died dozens of times along the way" due to the persistent challenges of navigating the tribal politics of DC.  The political tribes, between and within parties, are likely to be even harder to manage over the next 18 months with a major election looming.

And yet, given Prez Trump's important statement about the importance of "successful reentry and reduced unemployment for Americans with past criminal records," I think a new bipartisan bill concerning record clearing could and should be worth focused support.  Here are a few details about a federal Clean State Act proposal via the Politico article linked above:

An unlikely pair of House members are making a push for a “second chance” law for people convicted of certain low-level federal offenses, with hopes to repeat Congress’ unexpected victory on criminal justice reform last year.  Reps. Lisa Blunt Rochester, a Democrat from Delaware, and Guy Reschenthaler, a Republican from Pennsylvania, introduced the Clean Slate Act on Tuesday, which would automatically seal a person’s record if he or she has been convicted of possession of drugs, including heroin, as well as any nonviolent offense involving marijuana.

The intention, they say, is to eliminate barriers to employment, education and housing that are common for people convicted of crimes.  “I’ve seen so many stories of people who, because of a minor offense, it has stuck with them for the rest of their lives,” Blunt Rochester said in an interview Tuesday, calling her bill the “next logical step” after last year’s landmark package of sentencing and prison reform.  The bill has won support from what Blunt Rochester described as “strange bedfellows” — the liberal Center for American Progress and the conservative FreedomWorks....

Both lawmakers said they hope the bill can be a rare area of common ground in the coming weeks as Senate GOP leaders have flatly rejected most bills sent to them by House Democrats. Blunt Rochester said she’s spoken with House Democratic leaders and is optimistic about a floor vote.... Sen. Bob Casey (D-Pa.) plans to introduce a similar bill on the Senate side and is in talks with Republicans to become a co-sponsor.

Because the Clean Slate Act addresses criminal records after a persons has fully completed a sentence, there really is no direct overlap between its provisions and laws altered by the FIRST STEP Act and so there really is no reason to await FIRST STEP implementation before taking action on this important distinct front.  Indeed, the Clean Slate Act seeks to address reentry and employment issues mentioned by Prez Trump earlier this month and does so in a manner that could itself further enhance the long-term success of the FIRST STEP Act.

As long-time readers know, I am always pragmatically pessimistic about the work of Congress in this space.  But I think the next 18 months provides a unique window of time for moving forward with a Clean Slate Act or some other expungement reform, and I hope reform advocates will all consider jumping on this particular reform bandwagon. 

April 27, 2019 in Collateral consequences, Criminal justice in the Trump Administration, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Sunday, April 07, 2019

Are more re-enfranchised former offenders now registering as Republicans rather than as Democrats?

The question in the title of this post is prompted by this notable New York Sun piece headlined "Trump’s ‘First Step’ Toward 2020."  Here are excerpts:

Could President Trump’s bipartisan criminal justice reform — known as the First Step Act — prove to be a first step in a political revolution?  We ask because of a startling disclosure by one of the President’s shrewdest lieutenants in the campaign for First Step, Jared Kushner.  It turns out, he said, that greater numbers of ex-cons being granted suffrage in Florida are registering as Republicans.

Mr. Kushner, the President’s son-in-law, dropped that surprise almost in passing toward the end of an interview with Laura Ingraham. The interview was mainly about the First Step Act celebrated Monday at the White House. Toward the end of the interview, though, they chatted about the Democratic field. Ms. Ingraham popped one of those classic one-word questions: “Socialism?”

“I don’t think that’s where the country is,” Mr. Kushner said. “One statistic that I found very pleasing is that in Florida they passed a law where former felons can now vote. We’ve had more ex-felons register as Republicans than Democrats, and I think they see the reforms . . .”  Ms. Ingraham cut in: “Whoa, whoa, whoa. You’ve had more ex-felons register as Republicans than Democrats?”

“That’s the data that I’ve seen,” replied Mr. Kushner. “I think that will surprise a lot of people when they see the new coalition that President Trump is building for what the Republican Party has the potential to be.”

No doubt it would be a mistake to make too much of this.  It’s been but months since Florida amended its constitution to restore voting rights to felons.  It will take years for the effects to show up in voter registration and at the polls.  Yet it would be a mistake to make too little of it, as well.  Particularly because we’ve had some — not to put too fine a point on it — close races in the Sunshine State.

Florida’s constitutional amendment, after all, restored, at least de jure, suffrage to something like 1.5 million ex-cons, according to the various press accounts. The Democrats were the party pushing for putting these men and women back on the voting rolls.  That brings Florida in line with most states.  The party seems to have taken for granted that they will reap the advantage.

That could prove to be yet another underestimation of Mr. Trump.  We’re not predicting that, just marking the possibility.  The video of the event at the White House to celebrate the the First Step Act underscores the point. It is, we don’t mind saying, breathtaking and worth watching in full. It illuminates the President’s abilities as an inclusive, bipartisan leader....

It’s not our purpose to suggest that the First Step Act is without issues (it was opposed by a number of the most conservative senators). Our purpose is to mark that while the Democrats are trying to get out of first gear — they’re still focused on the Mueller report — Mr. Trump is setting up his 2020 strategy in a highly premeditated way, one that the Democrats seem determined to underestimate yet again.

I am really drawn to this New York Sun piece for a host of reasons.  First and foremost, I agree with the assertion that, as I noted here, last week's event at the White House to celebrate the the FIRST STEP Act was breathtaking and worth watching in full (via this twitter link).  In addition, though I would like to see first-hand data out of Florida on re-enfranchised registrations, the specifics may matter less than that Jared Kushner believes (and is surely telling his father) that criminal justice reform and re-enfranchisement efforts have real political potential for the Republican party. 

Many years ago, I urged in posts and in Daily Beast commentary that then-Prez-candidate Mitt Romney should embrace "Right on Crime" rhetoric about the need for criminal justice reforms in order to help the Republican party appeal more to younger voters and voter of color.  Jared Kushner clearly seems to tapping into these ideas when talking up a "new coalition that President Trump is building for what the Republican Party has the potential to be."  The event celebrating the FIRST STEP Act suggests a willingness, even an eagerness, for this White House to double down on criminal justice reform because they sense a distinct political opportunity as good politics starts to match up with better policies in this space.  This reality bodes well for future reform efforts no matter who is truly getting the bulk of the benefit from re-enfranchised voters.

Finally, politics aside, there is no good reason in my view to disenfranchise categorically any class of competent voters (and my basic thinking on this front was effectively explained in this Big Think piece years ago headlined "Let Prisoners Vote").  The long-standing perception that re-enfranchisement efforts would help Democrats a lot more than Republicans has contributed to political divisions over doing what is right and just, namely letting everyone have proper access to the franchise.  I hope development in Florida and elsewhere can undermine the belief that only one party benefits from re-enfranchisement efforts so that both parties can fully support the fundamental commitment to democracy that re-enfranchisement represents. 

A few prior related recent posts:

April 7, 2019 in Campaign 2020 and sentencing issues, Collateral consequences, Criminal justice in the Trump Administration, Reentry and community supervision, Who Sentences | Permalink | Comments (2)

"Third-Class Citizenship: The Escalating Legal Consequences of Committing a 'Violent' Crime"

The title of this post is the title of this notable new article authored by Michael M. O'Hear now available via SSRN. Here is its abstract:

For many years, American legislatures have been steadily attaching a wide range of legal consequences to convictions — and sometimes even just charges — for crimes that are classified as “violent.”  These consequences affect many key aspects of the criminal process, including pretrial detention, eligibility for pretrial diversion, sentencing, eligibility for parole and other opportunities for release from incarceration, and the length and intensity of supervision in the community.  The consequences can also affect a person’s legal status and rights long after the sentence for the underlying offense has been served.  A conviction for a violent crime can result in registration requirements, lifetime disqualification from employment in certain fields, and a loss of parental rights, among many other “collateral consequences.”  While a criminal conviction of any sort relegates a person to a kind of second-class citizenship in the United States, a conviction for a violent crime increasingly seems even more momentous — pushing the person into a veritable third-class citizenship.

This article provides the first systematic treatment of the legal consequences that result from a violence charge or conviction.  The article surveys the statutory law of all fifty states, including the diverse and sometimes surprisingly broad definitions of what counts as a violent crime.  While the article’s aims are primarily empirical, concerns are raised along the way regarding the fairness and utility of the growing length and severity of sentences imposed on “violent” offenders and of the increasingly daunting barriers to their reintegration into society.

April 7, 2019 in Collateral consequences, Offense Characteristics, Reentry and community supervision | Permalink | Comments (0)

Shouldn't every criminal justice institution include leaders with past criminal justice involvement?

XO63XMY22BDO5P3YXLAZM4LLDMIn his landmark book, "Criminal Sentences: Law Without Order," Judge Marvin Frankel famously urged the creation of a "Commission on Sentencing" which would include "lawyers, judges, penologists, and criminologists, ... sociologists, psychologists, business people, artists, and, lastly for emphasis, former or present prison inmates."  As Judge Frankel goes on to explain, having such persons on a sentencing commission "merely recognizes what took too long to become obvious — that the recipients of penal 'treatment' must have relevant things to say about it."

Judge Frankel's astute comments from nearly half a century ago came to mind (along with the question that is the title of this post) on a lovely Sunday morning when I saw this lovely local article headlined "Freed from prison nine years ago, Brandon Flood is new secretary of Pa.’s pardon board."  Here are excerpts:

This column will probably come as something of a shock to all the people in Harrisburg who only know Brandon Flood — a bow-tied, bespectacled policy wonk with sartorial flair — as the persona that he laughingly calls “Urkel Brandon,” in a homage to one of TV’s most famous nerds.  Flood, now 36, readily admits most folks who know him from nearly a decade as a legislative aide or lobbyist will be shocked to learn of his past that includes boot camp for juvenile offenders, a physical scuffle with Harrisburg’s then-police chief, and finally felony convictions and two lengthy prison stints for dealing crack cocaine and carrying an unlicensed gun.

But starting last week, Flood’s turnaround saga has become a talking point and a mission statement for his new job as secretary of the five-member Pennsylvania Board of Pardons  — anchoring one leg of a broader push in Harrisburg for criminal justice reform, aimed at giving more convicted felons a chance for clemency or to wipe their slate clean with a pardon.  What makes Flood’s appointment even more remarkable is that — to steal a phrase from TV infomercial lore — he’s not just Pennsylvania’s new top pardons administrator, he’s also a client.  Gov. Wolf signed off on Flood’s own board-approved pardon, erasing his past convictions, just a few weeks before Flood stepped in as secretary.

Taking a break last Monday during his first day on the job for a sit-down interview, the soft-spoken Flood said a number of new initiatives — to not only call attention to Pennsylvania’s pardon process but also to make it easier to apply for one — will hopefully show former inmates that the state is more focused on rewarding good post-prison behavior.  “If they see this [a pardon] as a viable option, they will continue to be productive citizens,” Flood said, who plans to use his own story as a powerful example of that. “They will see there’s a light at the end of the tunnel.”

Flood’s hiring was the brainchild of Pennsylvania’s new lieutenant governor, John Fetterman.  Policy-oriented, progressive and looking for areas where he can make a difference in the oft-neglected No. 2 slot, the burly, black-shirted Braddock ex-mayor has honed in on his designated role as chairman of the Board of Pardons.  Fetterman told me that Flood is “a singularly unique person to have in order help remake the process ... which is only the only remedy for anyone in Pennsylvania who wants to move forward with their lives in this way.”

Flood’s arrival helps mark the beginning of one era in Pennsylvania criminal justice and arguably the end of another.  It was exactly 25 years ago that a convicted murderer named Reginald McFadden was granted his freedom by a Board of Pardons led by then-Democratic Lt. Gov. Mark Singel, who was also running for governor that year.  McFadden almost immediately killed two people and raped a third, and the case, with its overtones of the infamous Willie Horton affair, was cited by experts as a reason for Singel’s defeat that fall.  The political fallout dramatically changed Pennsylvania’s pardon math. Critics (including the man Fetterman ousted in a 2018 primary, ex-Lt. Gov. Mike Stack) came to say that the state’s pardon system was “broken” in an era of skyrocketing mass incarceration.  Commutations of life sentences ground to a virtual halt, post-McFadden, while pardons for lesser crimes slowed as long backlogs and a confusing process discouraged applicants....

For Fetterman, who hails his close working relationship with Wolf on criminal justice reform, Flood’s hiring is symbolic of both down-to-earth pardon reforms — a $63 application fee was eliminated last month, and the board is looking to digitize the application process and possibly open satellite offices in Philadelphia and Pittsburgh and eventually elsewhere — and a bold new attitude.  In December, Wolf granted board-recommended clemency to three life-sentenced inmates — after only signing two in his first 47 months in office.  Fetterman, who’s currently on an all-67-county tour to discuss the possibility of legalizing marijuana, also said he wants a task force to look at granting widespread pardons for past pot-related convictions. “These are simple charges that are damning people’s career possibilities,” he said.

I am so very pleased to see these developments in the Keystone State, especially because I think having a robust parole, commutation and pardon system can play a key role in encouraging persons to return to a law-abiding life after a run-in with the law. Moreover, beyond whatever reforms or actions are led by Brandon Flood, his very appointment to this position serves as an important symbol of redemption and potential.

In line with this state development and with the question in the title of this post, it dawns on me that the US Sentencing Commission has likely never had, over its now 35-year history, any commissioners with any personal history with the criminal justice system. (I am not entirely certain of this assertion, as I do not know everything about the past of the 30 persons here listed as former commissioners.)  Judge Frankel's astute staffing suggestions have not been followed in various ways in the federal system — e.g., I cannot recall any business people or artists on the USSC — but I think the absence of a former offender is especially glaring.

With five(!) open spots on the USSC, and with Prez Trump talking up the importance of "successful reentry and reduced unemployment for Americans with past criminal records... starting right away," now would seem to be an especially opportune time for a USSC appointment of someone with a "past criminal record" in the federal system.  Names like Matthew Charles and Shon Hopwood and Alice Johnson and Kevin Ring immediately come (alphabetically) to mind, but I am sure there are many others who could serve admirably in this role as "recipients of penal 'treatment' [with] relevant things to say about it."  

April 7, 2019 in Prisons and prisoners, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Saturday, April 06, 2019

US District Court declares unconstitutional Illinois host-site rules that has led to indefinite detention of hundreds of sex offenders

Via the always terrific Marshall Project, I came across a notable opinion by US District Judge Virginia Kendall finding constitutionally problematic a remarkable set of rules used to restrict the release of sex offenders from prison in Illinois.  This local press report on this ruling provides these basics:

A federal judge in Chicago has found the Illinois Department of Corrections is violating the constitutional rights of prisoners convicted of certain sex crimes by making the restrictions on where they can live so stringent that inmates are often locked up long beyond their sentences.

In a ruling issued Sunday, Judge Virginia Kendall wrote that hundreds of offenders in the state’s prison system successfully complete their entire court-ordered sentences yet remain behind bars indefinitely.  Kendall found the corrections department is depriving them of fundamental rights, and if they had money and support, they’d be able to leave and begin serving out what’s called “mandatory supervised release.”

Mark Weinberg, an attorney for the plaintiffs, said the decision could mean relief for hundreds of people who have been in prison even though they’ve served their time.... Prisoners call the time they serve beyond their sentences — often many years — “dead time.”...

Will Mingus, executive director of the nonprofit Illinois Voice for Reform which advocates for more effective sex offender policies, says the state’s laws are counterproductive — they actually keep these prisoners from receiving the support that research shows will help them rehabilitate.  “The laws [the legislature is] creating are not solving the problem, they’re not creating safety, they’re creating the illusion of safety,” Mingus said. “Studies that have been done for years now you’ll see that having stable housing, having a job, having social support, those are the things that help people reintegrate into society and help reduce recidivism.”  Mingus said he understands it is difficult to have practical conversations around paroling and rehabilitating sex offenders, but he thinks the judge’s ruling is common sense.  “I think it’ll be a win for the people currently sitting in prison long past their out date because they simply cannot find a place to parole to,” Mingus said. 

Adele Nicholas, an attorney for the plaintiffs, says there are a couple of potential solutions the department of corrections could implement.  “One would be making available different forms of free housing that people who can’t afford a place to live could go to,” Nicholas said.  “Whether that’s allowing people to parole to homeless shelters, or making it so there are halfway houses people could live in, or work release.”  Currently, there are no halfway houses in Illinois that will accept someone convicted of a sex offense.

Kendall wasn’t clear on exactly what the solution will be to get the men released from prison quickly. She expects to hold a hearing April 22 to begin determining that, she wrote.

The full 61-page ruling in Murphy v. Raoul, No. 16 C 11471 (N.D. Ill. March 31, 2019), is available at this link.  Here is how it starts and ends:

The Paul Murphy is indigent and homeless.  He was convicted of possession of child pornography in 2012 and received a sentence of three years’ probation.  Five years after his release date, and nearly twice the number of years of his sentence, he remains incarcerated because the Department of Corrections cannot find an appropriate place for him live. 

Illinois, like many states, requires sentencing courts to follow a term of imprisonment with a term of mandatory supervised release.  Supervised release is a form of post-confinement monitoring intended to assist individuals in their transition from prison to liberty.  Most supervised release terms are determinate, but some — including those that apply to several sex offenses — are indeterminate, meaning they range from three years to natural life.  The clock on these terms does not start ticking until sex offenders are out of prison, but some never make it that far because they are indigent and the State demands that they first secure a qualifying host site before it will release them.  Many offenders successfully complete their entire court-ordered terms of incarceration yet remain detained indefinitely because they are unable find a residence due to indigence and lack of support.

The question presented is whether this practice violates the Constitution.  The plaintiffs are a class comprising the affected sex offenders and the defendants are the Attorney General of Illinois and the Director of the Illinois Department of Corrections.  Both parties moved for summary judgment.  The Court now grants the plaintiffs’ motion in part, denies it in part, and denies the defendants’ cross-motion in full.   At the very heart of the liberty secured by the separation of powers is freedom from indefinite imprisonment by executive decree.  The Attorney General and Director’s current application of the host site requirement results in the continued deprivation of the plaintiffs’ fundamental rights and therefore contravenes the Eighth and Fourteenth Amendments to the Constitution of the United States....

Sex offenders are criminals, plain and simple.  Yet the “one enduring lesson in the long struggle to balance individual rights against society’s need to defend itself against lawlessness,” is that it “‘is easy to make light of insistence on scrupulous regard for the safeguards of civil liberties when invoked on behalf of the unworthy.  It is too easy. History bears testimony that by such disregard are the rights of liberty extinguished, heedlessly at first, then stealthily, and brazenly in the end.’” United States v. Montoya de Hernandez, 473 U.S. 531, 567 (1985) (quoting Davis v. United States, 328 U.S. 582, 597 (1946) (Frankfurter, J., dissenting)).

The Illinois Legislature thought it best to rehabilitate sex offenders by reintegrating them, like all other convicted felons, into the community after prison.  The Constitution thus entitles them to the same conditional liberty that all other releasees receive.  Because the defendants’ current application of the host-site requirement permits the indefinite detention of the plaintiffs, it breaches the promises enshrined in the Bill of Rights.  The Court accordingly grants the plaintiffs’ motion for summary judgment as to their equal protection (Count II) and Eighth Amendment claims (Count IV), denies it as to their substantive (Count I) and procedural (Count III) due process claims, and denies the defendants’ cross-motion in full.

Although the Court today decides liability, it reserves ruling on the proper remedy to afford the plaintiffs.  The Court sets a status hearing for 4/22/2019 at 9:00 a.m. to discuss a trial date for the procedural due process claim and the need for a remedial hearing to determine the scope of equitable relief.

April 6, 2019 in Collateral consequences, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (7)

Monday, April 01, 2019

Encouraging news and inspiring notes as White House celebrates FIRST STEP Act

This Washington Examiner piece, headlined "Trump announces Second Step Act to help ex-prisoners find work," reviews some highlights from today's celebration of the FIRST STEP Act at the White House today. Here are excerpts:

President Trump announced plans Monday for a Second Step Act focused on easing employment barriers for formerly incarcerated people.  "We are proving we're a nation that believes in redemption," Trump said at a White House event celebrating people released under the First Step Act, which he signed in December.

Trump said the "second step" legislation will feature a $88 million funding request for prisoner social reentry programs. "Today, I'm announcing that the Second Step Act will be focused on successful reentry and reduced unemployment for Americans with past criminal records, and that's what we're starting right away," Trump said....

Some advocates had urged deeper sentencing reforms in a second major criminal justice reform bill.  Troy Powell, whose crack cocaine sentence was shortened by the First Step Act, spoke at the event Monday and called for more action to release inmates.  "There's more that can be done. I left so many people behind in prison doing 40, 50 years for nothing, I mean absolutely nothing," Powell said.  "I think there should be a second step."

Trump applauded Powell. "Could I have said it better than that?  His statement about so many people?  And that's true, so many people are there that really are serving 40 and 50 year sentences for things you wouldn't even believe, for things some people wouldn't even be going to prison for today," he said....

Trump said his administration would also "encourage employers to adopt second chance hiring practices," and gave rare applause to the media for favorable coverage of Alice Johnson, whose drug sentence he shortened last year using his executive clemency powers.  "Alice said, 'I also want to thank the media.' I bent over and said, 'Are you sure?' And I do too, I think that's fantastic," Trump said.

One speaker at the event, former prison inmate and Georgetown University law professor Shon Hopwood, was introduced by Trump as a current teacher of his daughter Tiffany Trump. "I think you're going to be rewarded in a way you cannot even imagine," Hopwood told Trump.

Via this twitter link, one can watch the full clip of Prez Trump speaking about criminal justice reform and hear the inspiring comments of a number of former federal prisoners who have been helped by the FIRST STEP Act.  Also, the White House released this "Fact Sheet" today titled "President Donald J. Trump Is Committed to Building on the Successes of the First Step Act."  The whole document is notable, and here are excerpts:

April 1, 2019 in Criminal justice in the Trump Administration, FIRST STEP Act and its implementation, New crack statute and the FSA's impact, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Saturday, March 30, 2019

Student SCOTUS preview part three: mapping out likely votes after oral argument in US v. Haymond

6a00d83451574769e2022ad3c272a1200b-320wiI noted here back in 2017 an interesting opinion in US v. Haymond where a Tenth Circuit panel declared unconstitutional the procedures used for revocation of a sex offender's supervised release.  The Supreme Court also found the case interesting because, as reported here, the Justices in 2018 accepted the petition for certiorari filed by the federal government.  The SCOTUSblog page on Haymond has links to all the briefing.

As reported in this prior post, I have a great student, Jim McGibbon, who is drafting a series of posts on the Haymond case.  Oral argument took place last month, and Jim was there for all the action.  Following up on his introductory post, and his second post inspired by the briefing in the case, he is working on a few posts on the Justices' likely votes informed by the argument.  Here is the start of his efforts:

Oral argument for United States v. Haymond is completed and the case has been submitted.  Amy Howe at SCOTUSblog observed after oral argument that the Court seems “poised to rule for [Haymond] in dispute over constitutionality of sex-offender law."  I predict that United States v. Haymond will be decided 6-3 in favor of Mr. Haymond.  This post will analyze the predicted majority and the next post will give a breakdown of the predicted dissent.

Locks

Justice Sotomayor

Justice Sotomayor may have more than tipped her hand when she opined during oral argument that to compare supervised release with parole is “to compare apples and oranges.”  If still not convinced, consider that she has stated in Alleyne v. United States, 570 U.S. 99 (2013), that “Apprendi [is] firmly rooted in our jurisprudence.”   Not so subtly did Justice Sotomayor lay the cards on the table, when she averred during oral argument that she had a “due process concern as well as a Sixth Amendment concern” with the procedures applicable in Haymond.  The government did little to propitiate Sotomayor at oral argument, and it appears safe to say that Sotomayor will not break rank from her past holdings.

Justice Thomas

Justice Thomas wrote the concurring opinion in Apprendi v. New Jersey.  He asserted that “if the legislature defines some core crime and then provides for increasing the punishment of that crime upon a finding of some aggravating fact of whatever sort, including the fact of a prior conviction — the core crime and the aggravating fact together constitute an aggravated crime.”  Here, the 10th Circuit convicted Haymond of a violation of 3583(k) and as a result, he was subsequently exposed to “greater and additional punishment” without a jury.  Even though Justice Thomas may not believe in stare decisis and even though he did not speak during oral argument, it would seem reasonable to assume that he believes that 3583(k) is a sentencing enhancement of a sort that is based on facts that need to be submitted to a jury and proved beyond a reasonable doubt. To boot, Justice Thomas was in the majority in Blakely v. Washington, 542 U.S. 296 (2004), and Alleyne v. United States, 133 S. Ct. 2151 (2013) both cases extending the reach of the procedural rights recognized in Apprendi.

Likely

Justice Ginsburg

Justice Ginsburg is a soldier of criminal procedural rights as she joined the ranks of the majority in Apprendi, Blakely, and Alleyne, which all affirmed Sixth Amendment and related procedural due process rights for the criminal defendant.  And in the Haymond oral argument, Justice Ginsburg may have revealed her vote when she intimated that the imposition of 3583(k) requires a “factual finding.”  She also voiced more concern over the remedy that the defendant was seeking than the merits of the argument, which although is not conclusive, is suggestive.  But, of course, Justice Ginsburg was the key swing vote that created the advisory guideline remedy in Booker, and see authored the Court opinion limiting the reach of the Sixth Amendment in Oregon vIce, 555 U.S. 160 (2009).

Justice Kagan

Justice Kagan seems quite likely to hold for the defendant.  She was among the majority in Alleyne, and during oral argument in Haymond she also resisted the government's efforts to compare supervised release to parole.  More generally, in a variety of setting for a variety of criminal defendants, Justice Kagan has been a fairly consistent voice and vote for expanding procedural rights.  It is hard to think of too many cases in which Justice Kagan has been less willing to recognize expanded constitutional rights than her colleagues. 

On the Bubble
Justice Gorsuch and Justice Kavanaugh

Justice Kavanaugh and Justice Gorsuch do not have extensive enough records as Supreme Court Justices regarding Sixth Amendment or other procedural due process rights to predict with any confidence how they will vote, which is why I have them as on the bubble.  Notably, last year Justice Gorsuch was a key swing vote siding with the more liberal justices in a case where the Court held that a federal statute defining a "crime of violence" was unconstitutionally vague. See Sessions v. Dimaya, 138 S. Ct. 1204 (2018). This case seems to suggest that Justice Gorsuch is not disinclined to strike down federal statutes even to benefit criminal offenders.  Notably, during oral argument, Justice Gorsuch also resisted the government’s contention that supervised release and parole were similar, and he did not question the defendant’s counsel at all during oral argument.

Justice Kavanaugh questioned both sides during the argument in Haymond, and he focused on the intricacies of the applicable statutes and a possible remedy.  Notably, while serving on the DC Circuit, in 2015 then-Judge Kavanuagh issued a notable statement in case involving a sentence enhanced on the basis of "acquitted conduct" (available here) that included the assertion that "[a]llowing judges to rely on acquitted or uncharged conduct to impose higher sentences than they otherwise would impose seems a dubious infringement of the rights to due process and a jury trial."   Given that statement, though Justice Kavanaugh could be a wild card here, I predict that he sides with the defendant.

Up next, the breakdown of the predicted dissenters.

Prior related posts:

March 30, 2019 in Blakely in the Supreme Court, Booker and Fanfan Commentary, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Encouraging developments in remarkable federal case that threatened old prison term after obvious rehabilitation

Download (13)I had been meaning to blog about this remarkable story first reported in the New Haven Independent under the headline "Glitch May Return Rehab’d Man To Prison." Here is the backstory from that piece: 

Jermaine Demetrius Anderson may have to leave his two jobs, his condo in Westville, his local “church family,” and the stable, crime-free life he has built for himself in the Elm City — and go to prison. All because of an apparent miscommunication over a decade ago between the Connecticut state judicial system and the federal court in Philadelphia.

His hope now is the federal government — maybe even President Donald Trump — will cut him a break.

On Feb. 28, Paul Diamond, a judge with the U.S. District Court for the Eastern District of Pennsylvania, signed a warrant for Anderson’s arrest for his failure to serve an outstanding 16-month federal sentence. The sentence dates to a crime that occurred 16 years ago.

The federal court issued that sentence to Anderson, now a 43-year-old employee for the city’s parks department, in 2005 after he pleaded guilty to two felony counts of possessing and passing counterfeit currency and one count of identity theft while living in Pennsylvania. He committed the crimes in 2003.

Anderson never served that federal sentence. Even though he thought he had. That’s because he spent three years in state prison in Connecticut after pleading guilty to similar but separate counterfeit currency charges in New Haven in 2003. He said he believed he was serving his state and federal sentences concurrently while locked up in Webster Correctional Institution in Cheshire.

After finishing that state sentence in November 2006, the state judicial system didn’t remand him to federal custody in Philadelphia. He said no one reached out to him and said he had to report to the Eastern District of Pennsylvania to serve more time for the federal offense. He thought he had done his time. He set about rebuilding his life in New Haven.

Thirteen years later, U.S. marshals came pounding on his door in New Haven last week, claiming that he had evaded arrest and demanding that he report back to Pennsylvania to serve 16 months in federal prison.

Local attorney Michael Dolan said he has been in touch with Philadelphia federal attorneys, and has urged them to reconsider requiring Anderson to serve federal time so long after he was sentenced and so long after he served time in state prison on similar charges. “It would appear that the goals of the criminal justice system have been met,” he said about his thoroughly rehabilitated client....

Robert Clark, a spokesman for the U.S. Marshals Service, Eastern District of Pennsylvania, told the Independent that the marshals unearthed Anderson’s outstanding federal sentence and the slip-up between the Connecticut state judicial system and the Pennsylvania federal district court during a routine audit.

“During an internal audit of custody detainers by the U.S. Marshals in the Eastern District of Pennsylvania,” he said, “a case dating back to 2005 was found in which a sentenced man, Jermaine Demetrius Anderson, had been sent to Connecticut to face state charges. After a conviction and sentence served in Connecticut, Anderson should have been held for transfer back to federal custody; instead, he was mistakenly released. Upon the Marshals providing this information to a federal judge, the court issued a bench warrant for Anderson for failure to serve an outstanding federal sentence. Anderson was arrested in Connecticut March 20, released on bond and ordered to appear in U.S. district court in Philadelphia April 4. As the enforcement arm of the federal courts, the Marshals ensure that individuals with federal warrants are brought to face justice. Ultimately, the federal court system will make a determination on Anderson’s outstanding federal sentence.”

Dolan called Anderson’s case a prime example of someone who committed a crime, took responsibility by pleading guilty, served time in prison, and has subsequently successfully rehabilitated himself. “He’s been crime free, drug free, has employment,” Dolan said. “And now they want to take him back into custody.”

“It’s called corrections,” Anderson said. “I corrected myself. I don’t want pity. I just want people to be ethical.”

“I wasn’t evading,” he continued. “I wasn’t on the run.”

Encouragingly, this new CNN piece suggests an ethical outcome to this case may be in the works. The piece is headlined "Man who feared feds would finally impose sentence may have deal to avoid more prison," and here are the new developments:

A judge issued a bench warrant and Anderson was due back in court April 4, when it's possible he could be detained and sent to federal prison.

That apparently won't happen now after his lawyer said he reached a verbal agreement with prosecutors and the Bureau of Prisons to give Anderson credit for time "at liberty."

"I'm overjoyed but waiting for official paperwork," Anderson said, adding, "it's a blessing, but I want the blessing to be official. My heart is back in my chest where it should be." Attorney Michael Dolan said Friday he does not have an official agreement in writing.

CNN's efforts to reach the US attorney's office and the office of the federal judge overseeing the case were not immediately successful....

Dolan helped get Anderson released the day the marshals detained him, and he has been working with federal public defenders to keep his client from going to prison again.

"I certainly think it is cruel and unusual punishment," Dolan said Thursday.

I am pleased to see from this CNN piece that Anderson's attorney was apparently ready to argue that it would be unconstitutional to send him back to prison now under the Eighth Amendment. I do not think anyone would question a claim that this case is "unusual" and the facts described above certainly lead me to think it also "cruel" to require Anderson's imprisonment now under these circumstances. If a court were not prepared to rule that Anderson's reimprisonment was a violation of the Eighth Amendment, this case might alternatively be another setting for developing jurisprudence on what should be deemed "extraordinary and compelling reasons" warranting a sentence reduction under 18 USC 3582(c)(1)(A)(i).  This case certainly seems extraordinary and compelling to me, and modifying Anderson's federal sentence now certain seems in keeping with the "factors set forth in section 3553(a)." 

March 30, 2019 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, March 29, 2019

New reform reports from Florida and Ohio with broader ideas and lessons

This week I came across two notable and reader-friendly reports that each focus on developments in one (swing) state and do so in ways that suggest broader ideas and lessons for reformers working in any jurisdiction. Here are links to these reports with some of their introductory text:

From the Urban Institute, "Smart Reforms to Prison Time Served Requirements in Florida":

Florida’s criminal justice policy decisions, including strict time served requirements, have resulted in an unsustainably large prison system.  The average length of time served in Florida prisons has risen dramatically in recent decades, far outpacing increases in other states and contributing to the state’s large prison population.  Adjusting the state’s inflexible time served requirement is one approach to reducing incarceration that could allow Florida policymakers to save money and invest instead in preventing crime and helping people succeed after coming home from prison.  This brief describes the results of an analysis that shows thousands of people in Florida’s prisons could be released at lower time served requirements, and, for the time they would have been in prison, would not be arrested.

From Alliance for Safety and Justice, Americans for Prosperity-Ohio, and The Buckeye Institute, "Building on Ohio’s sentencing changes to keep prison populations in check":

Bipartisan support for criminal justice reforms such as 2011’s Justice Reinvestment Initiative (HB 86), Targeted Community Alternatives to Prison (T-CAP) and probation reforms in the last biannual budget (HB 49), and SB 66 from the last general assembly allowed the state to minimally reduce the prison population and take steps to increase the use of local sentencing options to reduce recidivism and connect people to treatment.  These efforts, and reducing the use of confinement for juveniles, have garnered well-earned national attention, helped the state avoid or end costly litigation, and saved hundreds of millions of dollars on new prison construction.   

As lawmakers turn their attention to the new legislative session, the General Assembly has an opportunity to build on the success of their recent reforms to ensure Ohioans suffering from addiction have the tools necessary to become contributing members of society while potentially saving the state hundreds of millions of dollars every year.

Right now, Ohio spends $1.8 billion on corrections every year and, despite promises of decreased budgets because of reforms, corrections costs have risen.  There are numerous reasons for increased spending including inflation, healthcare costs for an aging prison population, and the Department of Rehabilitation and Correction granting tens of millions of dollars back to local governments. But one of the main reasons is that recent changes in the law have not led to the big reductions in prison populations that were projected because not as many people convicted of low-level felonies are being served locally as intended. 

March 29, 2019 in Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Tuesday, March 26, 2019

Suffolk County DA produces remarkable new prosecutorial polices memo

Around this time last year, as discussed in this post, Philadelphia DA Larry Krasner made public a remarkable five-page memo setting forth an array of remarkable progressive prosecutorial policies.  This week, Suffolk County DA has produced an even more remarkable statement of policies via this remarkable 66-page document titled simply "The Rachel Rollins Policy Memo." The document is not easily summarized, and is worth a complete read. These excerpts from the first section, titled "A New Lens," provides a feel for some of the particulars that follow:

A dramatic shift in thinking around criminal justice is occurring in the United States. Sweeping advances in data science and public health have revealed that decades of punitive incarceration are not effectively preventing recidivism and promoting public safety. A large number of criminal convictions secured by prosecutors nationally are for drug, property, and public order offenses, which are often driven by economic, mental health, and social needs....

Data show that a carceral approach to low-level, non-violent offenses can do more harm than good. A criminal record often presents barriers to education, future income, housing, and many other necessary assets and supports proven to help people thrive and succeed in society.

As a result, jurisdictions across the country are taking a smarter approach to punishment and accountability. Law enforcement agencies and prosecutors’ offices are collecting and analyzing new and varied sources of data, and they are safely beginning to move all but the most serious offenses away from carceral punishment and its downstream collateral harms.

In place of traditional criminal justice system outcomes such as arrest, detention, prosecution, probation, and incarceration, criminal justice practitioners and policymakers are working in collaboration with community partners to develop and implement innovative, evidence-driven diversionary alternatives that data show are more likely to promote safer and healthier communities....

[Recent data] shows that the Suffolk County District Attorney’s Office can file fewer criminal charges, divert more people who need help into services and treatment, send fewer people to jail and prison, all while improving the health and public safety of Suffolk County residents.  I am pleased to announce, effective immediately, the following official guidelines and policies of the Suffolk County District Attorney’s Office.  These guidelines and policies, as with all of our office’s policies and decisions going forward, will be grounded in science and data, modeled after the best known local and national practices, and will build upon and expand the important work and relationships begun under the leadership of my predecessors

Prior related post:

March 26, 2019 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Friday, March 22, 2019

Philly DA looking to curtail duration of probation and parole

Many years ago, I heard an academic a lot smarter than me say that the US would never make a serious dent in mass incarceration if and while we still had an even more massive number of persons subject to criminal justice supervision. He suggested that it was unavoidable that some percentage subject to community supervision would end up going back to prison, and so to reduce incarceration levels we had to also reduce supervision levels.

This story is salient this morning because of this notable new press report from Philadelphia headlined "Philly DA Larry Krasner: We took on mass incarceration. Now we’re addressing mass supervision." Here are the basics (with this from the original):

Over his first year in office, Philadelphia District Attorney Larry Krasner rolled out a series of internal policies described as “an effort to end mass incarceration": seeking shorter sentences, diverting low-level offenses from the justice system, and charging crimes at a lower level. 

Now, he’s looking to the next step. “One of our big priorities this year," he said, "is to try to address mass supervision — which, of course, would be both probation and parole.”

Philadelphia counted 42,000 people on county supervision at the end of 2017, or one in 22 adults. Statewide, Pennsylvanians are under correctional control at the second-highest rate in the nation, behind Georgia, and has the highest rate of parolees.

“I think people instinctively believed too much supervision is not enough. But it turns out too much supervision is too much. ... It does tremendous harm, and it costs a fortune,” Krasner said in an interview outlining policies to be announced Thursday. Nationally, about 40 percent of people on probation are reincarcerated, making community supervision a major driver of incarceration. About 40 percent of Philadelphia’s jail population is being held on a detainer for a violation of probation or parole.

His plan? To put his office’s weight behind a push to drastically curtail terms of supervision, which can stretch on for years or even decades, long after prison and jail sentences have been concluded.

Under the new policy, on top of any sentence of incarceration for a felony, assistant district attorneys will seek community supervision terms averaging 18 months, with a ceiling of three years. For misdemeanors, they’ll seek probation or parole terms around six months, not to exceed one year of combined community supervision.

March 22, 2019 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (1)

Sunday, March 17, 2019

"Criminal justice reform must do more than shrink prison populations"

The title of this post is the headline of this recent Hill commentary authored by David Harding, Jeffrey Morenoff and Jessica Wyse. I recommend the full piece, and here are excerpts:

Senator Cory Booker (D-NJ) introduced the Next Step Act on March 7, an expansion of the criminal justice reform started with December’s First Step Act.  We applaud the Next Step Act for essential reforms, including reducing mandatory minimums for nonviolent drug offenses.

Yet, reversing the harms that have been created by decades of mass incarceration and an overly punitive and racially-biased criminal justice system requires more than reversing past policy mistakes.  Reform should go beyond shrinking prisons to providing those whose lives have been impacted by mass incarceration with real opportunities that lead to reintegration into society after release....

[R]eintegration requires more than just determination and work ethic, a key finding of our three-year study of the day-to-day lives of formerly incarcerated individuals. About a third struggle with hunger, homelessness and housing instability.

Chronic physical and mental health problems are also common.  Jobs are scarce for those with criminal records, who disproportionately move into communities like Detroit with high unemployment.  Half of those released from prison return within three years.  The period immediately after release is both a time of great risk and an opportunity to ensure that each person starts with a strong foundation of health and material security.

This “re-entry moment” is one of optimism, commitment to a new life and family support, but also a critical time of struggle with hunger, homelessness, employment and sobriety.  Investments in housing, health and employment services during the re-entry moment can create that foundation.

The Next Step Act contains worthy provisions for removing barriers to employment, including certain occupational licensing barriers for those with criminal records.  Yet our research shows that securing a job is only part of the reason for low rates of employment after release.

Education is essential to improving reintegration into the labor force.  Formerly incarcerated workers experience high rates of job turnover, in part because that is common in the low-skill jobs they find.  To improve employment for those like Randall, we should empower more community colleges to offer prison education with a seamless transition into community programs.

Time in prison can be better used to prepare for release.  Research shows that intensive treatment and prison education programs reduce recidivism, and incarcerated individuals are eager to take part in them.  Yet too many prisoners sit idle during their time in prison or engage in make-work jobs like cleaning and gardening....

Just as the federal government supports local efforts in education, health care and policing, it can support state and local reintegration efforts through funding, technical support and evaluation of promising programs.

Can we afford to support reintegration?  Each federal prisoner costs almost $32,000 a year, and in some states that figure is over $80,000.  The money saved by reducing imprisonment can create a virtuous cycle if it is reinvested in reintegration, which will result in fewer people returning to prison.

March 17, 2019 in Prisons and prisoners, Purposes of Punishment and Sentencing, Race, Class, and Gender, Reentry and community supervision | Permalink | Comments (1)

Tuesday, March 12, 2019

Making progressive (but not political) case that the FIRST STEP Act "does much harm"

Marie Gottschalk has this new Jacobin commentary assailing the FIRST STEP Act under the headlined "Did You Really Think Trump Was Going to Help End the Carceral State?".  The piece reiterates at length a variety of the criticisms from the left waged against the risk assessment tools in FIRST STEP while its fate was being debated in Congress. I recommend the whole piece, and here is how it starts and some excerpts:

With much fanfare, President Donald Trump signed the First Step Act into law in December. New Jersey senator and presidential candidate Cory Booker hailed the legislation as a milestone that marked a “meaningful break from decades of failed policies that led to mass incarceration.” Other supporters were more measured, characterizing it as a modest first step to keep the momentum going for criminal justice reform.

But the greatest sins of the First Step Act are not its modesty. The legislation nicks the edges of the carceral state while bolstering disturbing trends in criminal justice reform. CNN commentator Van Jones has claimed that the First Step Act is a “rare clean bill” that “does no harm.” Jones is wrong — it does much harm.

Grounding penal policy in the best evidence-based research is a mantra in criminal justice reform. Yet key provisions of the First Step Act are at odds with leading research on how to enhance public safety while minimizing social and economic costs and maintaining a fair criminal justice system that treats everyone — including people who are imprisoned — with dignity....

Van Jones’s claim that the First Step Act paves the way for federal prisons to “rehabilitate and heal — not just punish” rings hollow. The legislation authorizes miniscule funding for its ambitious aims. It designates $75 million annually for the next five years to develop and implement the new risk and needs assessment system for each person in the federal prison system. In doing so, the measure diverts “limited resources for programming by requiring a complex risk assessment process that would primarily benefit people deemed at a low or minimal risk of recidivating,” according to the Sentencing Project, which ultimately gave its qualified support to the First Step Act....

The fundamental problem is not that people in prison do not want to participate in programs but rather the critical shortage of those programs, let alone quality programs. Currently, 16,000 people are on the wait list for the BOP’s literacy program.

The federal prison system is currently in crisis due to overcrowding and staff cutbacks that the First Step Act will not alleviate. Many federal facilities are operating way above capacity. Nurses, counselors, and even cooks have been drafted to serve as temporary correctional officers because of severe staffing shortages. Last year a bipartisan group of legislators charged the Bureau of Prisons and the Trump administration with ignoring calls in Congress not to eliminate thousands of jobs in the federal prison system.

It is impossible to run effective prison programs when people are locked down in their cells due to staffing shortages, teachers and counselors are filling in for correctional officers, and assaults and violence are on the rise, as has been the case in the federal prisons.

Concerns about the under-funding and under-staffing of federal prisons are well founded, and the headline of this new Marshall Project report does not provide a basis for any new optimism: "First Step Act Comes Up Short in Trump’s 2020 Budget: Supporters worry because law seeks $75 million a year for five years, but president’s plan lists $14 million." But I always find these kinds of criticisms of modest improvements in criminal justice systems quite politically tone deaf given how politicians on both sides of the aisle have shown so little interest in pursuing any reforms at all until fairly recently.

This author rightly notes that "many federal facilities are operating way above capacity," but she leaves out that the federal prison population is lower now than any year while Prez Obama was in office. If Prez Obama was unwilling or unable to pursue all the big changes that progressives would like to see, there need to be even more of a political sea change to make big reforms viable.  Notably, some of the 2020 candidates are talking big about criminal justice reform on the campaign trail (most notable Cory Booker), and it is seems to me that they have the space to advocate more boldly only because the FIRST STEP Act is law and not just a bill awaiting a vote.

Ultimately, this piece serves as yet another reminder that how the FIRST STEP Act is implemented and what follows legislatively and politically will ultimately define whether this first step really is more harmful than helpful.  I am still in the optimistic camp on this front, but this commentary provides the best argument for pessimism.

March 12, 2019 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (0)

Monday, March 11, 2019

New indictment exposes underbelly of federal RDAP program ... and provides still more reason to be thankful for passage of FIRST STEP Act

This interesting new AP piece, headlined "Show up drunk: Indictments spotlight prison rehab scams," reports on indictments surrounding efforts to defraud the only long-standing federal prison program thathas  allowed prisoners to earn reductions in their rehabilitative efforts.  Here are the details:

It's a tip that has been passed onto convicts for years: On your way to federal prison, say you have a substance abuse problem, and you could qualify for a treatment program that knocks up to a year off your sentence.

Federal prosecutors have long suspected abuses in the program, which has enrolled a deep list of high-profile convicts.  Recently, a grand jury in Connecticut indicted three people accused of coaching ineligible convicts on how to get into the Residential Drug Abuse Program, or RDAP, by telling them to show up to prison intoxicated and fake withdrawal symptoms. The charges are among the first filed against prison consultants involving the program.

The case has put a spotlight on the unregulated world of prison consulting, in which some ex-convicts and former prison employees charge thousands of dollars for their inside knowledge to help people prepare for life behind bars. Some consultants say there has been wrongdoing in the industry for decades, including encouraging clients to scam their way into the rehab program.

The small industry now is "totally the Wild West," said Jack Donson, president of New York-based My Federal Prison Consultant and a retired federal Bureau of Prisons employee. "I hope it brings light to things," he said, referring to the Connecticut case.  "I hope it gives people ... pause to not cross that line to illegality and unethical conduct."

Completing the nine-month, 500-hour treatment program for nonviolent offenders is one of only a few ways inmates can get their sentences reduced. About 15,600 inmates — nearly 10 percent of the current federal prison population — participated in the program last year, and thousands more are on waiting lists. To get in, convicts must present evidence they had substance abuse or addiction problems during the year prior to their arrest. Upon completion, their sentences can be reduced and they can spend the last six months of their sentences in a halfway house.

Christopher Mattei, a former federal prosecutor in Connecticut, said the U.S. attorney's office increasingly saw white-collar convicts make use of the program. "It undermines the public's confidence that all people when they go before a court for sentencing will be treated fairly.  People who know how to game the system know how to get the benefits, whereas people who are struggling with addiction don't know all the angles to play," said Mattei, former chief of the financial fraud and public corruption unit in the Connecticut U.S. attorney's office....

The criminal indictments in Connecticut are believed to be among the first criminal charges filed against prison consultants in connection with the treatment program. Arrested were Michigan residents Tony Pham, 49, and Samuel Copenhaver, 47, both of Grand Rapids; and Constance Moerland, 33, of Hudsonville.  The three were managing partners in RDAP Law Consultants, authorities said.

Prosecutors said the three told clients over the past six years to falsely inform Bureau of Prisons officials that they had drug and alcohol problems, taught them how to fake withdrawal symptoms and how to fraudulently obtain medication to treat withdrawal symptoms, so they could show prescriptions to qualify for the program. The partners also told their clients to begin drinking alcohol daily before going to prison and to show up drunk, the indictments said....

Last year in New York City, a lawyer and three other people were charged with defrauding the government and making false statements. They allegedly submitted bogus information to prison officials, claiming that a convicted drug dealer had a history of addiction, in an effort to get the client into the drug treatment program so he could be released early. The case remains pending.

Other consultants coach people on how to lie to get into the program, according to Donson, who said some also claim they can get convicts sent to prisons that have the RDAP program when only federal prison officials have that authority. He said he sees potential for fraud also as consultants rush to offer help related to a new law that allows federal prisoners sentenced for crack cocaine offenses before late 2010 the opportunity to petition for a lighter penalty.

Donson and other consultants say more monitoring of the industry and prosecutions would help deter misconduct. "It's an unregulated industry, so something like this hopefully brings some attention to it," said Dan Wise, an ex-con who completed the RDAP program and now runs a prison consultant business based in Spokane, Washington.

I think it important for the feds to appropriately police the RDAP program to ensure defendants who are truly struggling with addiction are able to access a program with finite resources. But this article fails to highlight that defendants' efforts to sneak into the RDAP program was a symptom of a broader disease, namely that federal prisoners have historically had precious few means to seek to earn reductions in their sentences. Thankfully, the FIRST STEP Act is a significant step toward treating this disease, as it provides an elaborate set of mechanisms for allow some prisoners to earn reductions through other rehabilitative efforts. But, critically, the FIRST STEP Act has a number of problematic exclusions and restrictions on which prisoners can earn reductions AND there is reason to worry that poor implementation of the FIRST STEP could lead to privileged prisoners again being better able to access programming and reduction that should be made properly available to as many prisoners as possible.

Without know more about the indictments and underlying facts referenced in this AP article, I am disinclined to comment directly on whether federal prosecution of prison consultants may be the most efficient and effective way to police the administration of prison programming. But I am eager to encourage everyone involved in counseling defendant and prisoners to be honest and straight-forward in their dealing or else prisoners and their families are likely to be the ultimate victims.

March 11, 2019 in FIRST STEP Act and its implementation, Offense Characteristics, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (0)

Wednesday, March 06, 2019

Notable Eighth Circuit panel ruling finds due process right of confrontation violated in revocation of supervised release

I am expecting (and hoping) that the Supreme Court thought its pending Haymond case (basics here and here) will soon be adding to the constitutional procedural protections of federal defendants when facing significant punishment based on allegations they have violated their supervised release.  A helpful reader made sure I did not miss, while we await the Supreme Court's further guidance, a notable panel opinion from the Eighth Circuit in US v. Sutton, No. 17-3195 (8th Cir. March 5, 2019) (available here). Here is how the panel opinion in Sutton gets started and a key substantive passage:

Craig Sutton appeals the revocation of his supervised release based on the allegation that he committed assault in June 2016.  At the final revocation hearing, the government introduced videos and transcripts of police interrogations of three witnesses who had a connection to the assault.  None of the three witnesses appeared at the hearing to provide live testimony, and Sutton objected that introduction of their interrogations deprived himof his right to confrontation. The district court overruled his objection. Relying almost exclusively on the interrogations, the district court concluded that Sutton more likely than not committed the assault and revoked his supervised release. We conclude that admission of the interrogations was erroneous and accordingly reverse....

A revocation hearing is not a criminal trial, and a defendant on supervised release is not entitled to the full panoply of protections afforded by the rules of evidence. Morrissey v. Brewer, 408 U.S. 471, 480 (1972); United States v. Black Bear, 542 F.3d 249, 253, 255 (8th Cir. 2008).  Federal Rule of Criminal Procedure 32.1(b)(2)(C) nonetheless gives a defendant the opportunity to “question any adverse witness unless the court determines that the interest of justice does not require the witness to appear.”  See Morrissey, 408 U.S. at 488–89 (“[T]he minimum requirements of due process . . . include . . . the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation).”).  This rule requires the court to balance the defendant’s due process right to confront and cross-examine witnesses during such proceedings “against the grounds asserted by the government for not requiring confrontation.” United States v. Bell, 785 F.2d 640, 642 (8th Cir. 1986).

Under Bell, the court must evaluate two factors to determine if good cause justifies limiting the defendant’s confrontation rights in a particular case.  First, “the court should assess the explanation the government offers of why confrontation is undesirable or impractical,” such as when “live testimony would pose a danger of physical harm to a government informant.” Id. at 643.  Second, the government must establish “the reliability of the evidence which the government offers in place of live testimony.” Id. To demonstrate good cause, the government must prove both factors; only if it shows “that the burden of producing live testimony would be inordinate and offers in its place hearsay evidence that is demonstrably reliable” will good cause exist. United States v. Zentgraf, 20 F.3d 906, 910 (8th Cir. 1994) (quoting Bell, 785 F.2d at 643).

Applying the Bell factors to the testimony of the three witnesses at issue in this case, we conclude that the government failed to meet its burden on either factor and that Sutton was entitled to confrontation.

As the panel explains in a footnote, according the the Eighth Circuit, "because 'a revocation of supervised release is not part of a criminal prosecution,' the right to confrontation afforded at such hearings comes from due process.  United States v. Ray, 530 F.3d 666, 668 (8th Cir. 2008)."  This point and the Sutton case more generally serves as a useful reminder of how impactful, doctrinally and practically, the Supreme Court's Haymond case could prove to be.

March 6, 2019 in Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (0)

Spotlighting how credit score concern should be part of criminal justice reform agenda

Students in my classes, as well as long-time readers of this blog, know of my tendency to see and say that every societal issue is in some way a sentencing and criminal justice issue. The latest exhibit is this interesting new Hill commentary by Carlos Fernando Avenancio-León spotlighting how credit scores should be a concern for the ever-growing ranks of serious criminal justice reformers. The astute piece is headlined "Without access to credit, ex-cons may return to lives of crime," and here are excerpts:

Every week, more than 10,000 prisoners are released from U.S. prisons and begin the long process of reintegrating into society. For many, a successful reintegration will occur only if they can access the types of credit commonly used by all American citizens, such as credit cards and auto loans. For those unable to borrow, prospects for successful re-entry fall and recidivism risks rise. That’s bad for all of us....

Some estimates suggest a majority of former inmates engage in criminal activity after their release. An oft-cited reason is the hard time former inmates have in finding employment. That is no doubt a serious problem and one that must be addressed. However, special attention needs to be paid to a challenge that receives little: the hurdles they face in obtaining credit.

The crux of the issue for former inmates is that getting locked up typically hurts their credit scores. It’s not that credit bureaus specifically knockdown scores due to incarceration. The problem is, for obvious reasons, it’s difficult to repay loans or satisfy other debts while behind bars, so credit defaults and delinquencies pile up.

The negative financial effects continue even after release, as former inmates face severe discrimination in the labor market. Consequently, former inmates face significant impediments to accessing credit. But here is the paradox: Without credit, such individuals face myriad financial difficulties, from not being able to afford transportation or a place to live to falling victim to predatory lending and even homelessness.

Under such conditions, it is harder to get a job or make positive societal contributions. And more worrisome, such former inmates risk backsliding into criminal conduct.

In a recent study, my coauthor and I found that former inmates are much less likely to have mortgages or auto loans than non-incarcerated individuals (14 and 24 percentage points lower, respectively), and their average credit scores are about 50 points lower. Moreover, within the former inmate population, those experiencing sharper drops in credit availability are more likely to engage in future criminal activity: For each thousand dollars of available credit card limit lost, recidivism increases by 1.4 percentage points.

Accordingly, a history of incarceration and lack of access to credit creates credit-driven crime cycles for this population. Yet, after accounting for credit history and income, former inmates are less likely to default on loans than individuals who have never been incarcerated.

Because former inmates present lower credit risks, lenders extend former inmates slightly more loans, albeit not nearly enough to overcome a lending contraction driven by low credit scores. This does not mean that instances of discrimination in lending against former inmates do not happen. These, however, appear to be the exception rather than the rule....

Unfortunately, reductions in credit scores caused by lower income and defaults while in jail or prison are not easily remedied. Lenders cannot readily distinguish the real reason behind a default. Proper solutions to this dilemma need to be developed together with the affected communities and the organizations that help foster re-entry.

These solutions could include a combination of providing re-entry support and education to formerly incarcerated borrowers, deferments similar to those provided in student loans or during natural disasters, shorter times for defaults to be erased from credit files or even freezing-up their credit while incarcerated.

Carefully considering credit within the discussion of criminal justice reform may provide an important avenue for improving former inmates’ chances of successfully re-entering our society — all of which can help reduce the overall rate of crime. That makes banking on former inmates a worthy investment for all of us.

March 6, 2019 in Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Friday, March 01, 2019

"The Lingering Stench of Marijuana Prohibition: People with pot records continue to suffer, even in places where their crimes are no longer crimes."

The title of this post is the title of this great new article by Jacob Sullum at Reason. I recommend the article in full, as it goes through the expungement law of each state which has now fully legalized marijuana for adult use and tells stories of individuals still stuggling with the lingering impact of marijuana prohibition. Here is part of the start of the piece:

Franklin Roosevelt, who took office in the final year of Prohibition, issued some 1,300 pardons for alcohol-related offenses during his first three terms. As a 1939 report from the Justice Department explained, "pardon may be proper" in light of "changed public opinion after a period of severe penalties against certain conduct which is later looked upon as much less criminal, or as no crime at all." The report cited Prohibition as "a recent example."

That logic made sense to governors as well. When Indiana repealed its alcohol prohibition law in 1933, Gov. Paul McNutt (D) issued pardons or commutations to about 400 people who had been convicted of violating it. "If these men were kept in prison after the liquor law is repealed," he said, "they would be political prisoners."

Alcohol prohibition lasted 14 years. Marijuana prohibition has been with us almost six times as long. Police have arrested people for violating it about 20 million times in the last three decades alone. Many of those people were ultimately convicted of felonies that sent them to prison, although the vast majority were charged with simple possession and spent little or no time behind bars. Either way, marijuana offenders have had to contend with the lingering effects of a criminal record, which can shape people's lives long after they complete their sentences.

Depending on the jurisdiction and the classification of the offense, people who were caught violating marijuana laws may lose the right to vote, the right to own a gun, the right to drive a car (for up to a year), the right to live in the United States (for noncitizens), and the right to participate in a wide variety of professions that require state licenses. They may find it difficult to get a job, rent an apartment, obtain student loans, or travel to other countries. They may even be barred from coaching kids' sports teams or volunteering in public schools.

The employment consequences can be explicit, as with state laws that exclude people convicted of felonies from certain lines of work, or subtle, as with private businesses that avoid hiring people who have criminal records, possibly including arrests as well as convictions, because of liability concerns....

Such ancillary penalties seem especially unjust and irrational in the growing number of U.S. jurisdictions that have legalized marijuana for recreational use. In those places (which so far include 10 states, the District of Columbia, and the Northern Mariana Islands), people convicted under the old regime continue to suffer for actions that are no longer crimes.

California has gone furthest to address that problem. The state's 2016 legalization initiative authorized expungement of marijuana records, and a 2018 law will make that process easier. Demanding expungement as a remedy for injustice, activists in California emphasized the racially disproportionate impact of the war on weed: Black people are much more likely to have pot records than white people, even though they are only slightly more likely to be cannabis consumers.

Other states offer various forms of relief, ranging from generous to nearly nonexistent. All of them put the onus on prohibition's victims to seek the sealing or expungement of their criminal records, a process that can be complicated, expensive, and time-consuming....

People with marijuana records are looking for a way out in every state that has legalized recreational use, as the stories below show.

As some readers may recall, I wrote a paper last year on this topic under the title "Leveraging Marijuana Reform to Enhance Expungement Practices".  I have also covered these issues a whole lot over at Marijuana Law, Policy & Reform, and here is just a small part of that coverage:

March 1, 2019 in Marijuana Legalization in the States, Pot Prohibition Issues, Race, Class, and Gender, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Wednesday, February 27, 2019

"Failure should not be an option: Grading the parole systems of all 50 states"

The title of this post is the title of this new report from the Prison Policy Initiative.  Here is how this report gets started:

From arrest to sentencing, the process of sending someone to prison in America is full of rules and standards meant to guarantee fairness and predictability.  An incredible amount of attention is given to the process, and rightly so.  But in sharp contrast, the processes for releasing people from prison are relatively ignored by the public and by the law.  State paroling systems vary so much that it is almost impossible to compare them.

Sixteen states have abolished discretionary parole, and the remaining states range from a system of presumptive parole — where when certain conditions are met, release on parole is guaranteed — to having policies and practices that make earning release almost impossible.

Parole systems should give every incarcerated person ample opportunity to earn release and have a fair, transparent process for deciding whether to grant it.  A growing number of organizations and academics have called for states to adopt policies that would ensure consistency and fairness in how they identify who should receive parole, when those individuals should be reviewed and released, and what parole conditions should be attached to those individuals.  In this report, I take the best of those suggestions, assign them point values, and grade the parole systems of each state.

Sadly, most states show lots of room for improvement.  Only one state gets a B, five states get Cs, seven states get Ds, and the rest either get an F for having few of the elements of a fair and equitable parole system or a zero — for having passed laws to eliminate the option of release on parole.

February 27, 2019 in Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Tuesday, February 26, 2019

Haymond seemingly to become major Apprendi progeny altering federal supervised release revocations

Though I have not yet had time to read the full transcript of oral argument in United States v. Haymond, which is now available here, reading Amy Howe's argument analysis at SCOTUSblog suggests the tea-leaves are easy to read after the oral argument. The posting is titled "Court poised to rule for challenger in dispute over constitutionality of sex-offender law," and here are snippets:

This morning the Supreme Court heard oral argument in a dispute over the constitutionality of a federal law that requires convicted sex offenders to return to prison for at least five years – and possibly for the rest of their lives – if a judge finds that they have committed certain crimes. The defendant in the case, an Oklahoma man who served time for possessing child pornography and was then sent back to prison after he violated the terms of his supervised release, argues that the law violates his right to have his sentence determined by a jury, rather than a judge, beyond a reasonable doubt. Today the justices seemed overwhelmingly likely to agree with him, even if it was not entirely clear how they will remedy the constitutional violation....

Eric Feigin, an assistant to the U.S. solicitor general, defended the law on behalf of the federal government. But he was quickly interrupted by a skeptical Justice Sonia Sotomayor, who asked him whether there was any other area of the law in which the United States allows a defendant to be sent to prison based on the preponderance-of-the-evidence standard.

Feigin responded that both parole and probation operate in a similar way, but Sotomayor dismissed that analogy as comparing “apples and oranges.” With parole, she stressed, the state gives a benefit by cutting a sentence short. Where do we allow more prison time based on the preponderance of the evidence, she repeated?

Justice Brett Kavanaugh echoed Sotomayor’s thinking toward the end of Feigin’s initial stint at the lectern. When the government revokes an inmate’s parole, Kavanaugh suggested, it is simply denying a benefit. But when the government revokes an individual’s supervised release, he continued, that’s more like a penalty: The government is “adding a chunk of time on.”

Several justices also questioned the government’s contention that a jury was not required to find the facts leading to the conclusion that Haymond had violated the terms of his supervised release and the imposition of the new five-year sentence....

Only Justice Samuel Alito seemed to be squarely on the government’s side, warning that a ruling for Haymond could potentially “bring down the entire supervised release system.” As a result, much of the second half of the oral argument focused less on whether the law was unconstitutional and more on what should happen next.

I am not surprised, but I am still pleased, to learn that there may now be eight Justices prepared to extended Apprendi/Blakely rights to supervised release revocation. Now we wiat to see just how big the ultimate opinion will be (and how loudly Justice Alito will complain about more procedural rights for criminal defendants).

Some prior related posts:

February 26, 2019 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, February 25, 2019

Will Haymond argument generate any haymaker questions as SCOTUS takes up supervised release?

Tomorrow the Supreme Court has a day of sentencing arguments scheduled, as the Justices will from counsel in United States v. Haymond and Mont v. United States.  Here are the questions presented and argument previews via SCOTUSblog:

United States v. Haymond Issue: Whether the U.S. Court of Appeals for the 10th Circuit erred in holding “unconstitutional and unenforceable” the portions of 18 U.S.C. § 3583(k) that required the district court to revoke the respondent’s 10-year term of supervised release, and to impose five years of reimprisonment, following its finding by a preponderance of the evidence that the respondent violated the conditions of his release by knowingly possessing child pornography.

Mont v. United States Issue: Whether a period of supervised release for one offense is tolled under 18 U.S.C. § 3624(e) during a period of pretrial confinement that upon conviction is credited toward a defendant’s term of imprisonment for another offense.

For hard-core sentencing fans, the Haymond case could be the sleeper of the Term because a major ruling on constitutionally required procedures for revocation of supervised release could have profound implications not only for the federal system, but also potentially for some state systems. 

I doubt that oral argument will provide any big indication of just how big a ruling Haymond could produce, but I will be particular eager to see what the newer Justices might have to say about the kind of judicial factfinding that landed Andre Haymond back in prison for a (mandatory) five years after a judge found by only a "preponderance of the evidence" that he had violated the terms of his supervised release.  I think serious originalists should be troubled by the kinds of procedures used to deprive Haymond of his liberty, but the modern tradition of lax procedures at the "back-end" of sentencing systems is considerable.  I am hoping a number of Justices might take big swings with their questions in Haymond, but lately I am thinking I should not be expecting too much from the Justices.

Some prior related posts:

February 25, 2019 in Criminal Sentences Alternatives, Offense Characteristics, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)