Wednesday, November 16, 2022

Prison Policy Initiative reports on "Winnable criminal justice reforms in 2023"

Via email, I learned that the Prison Policy Initiative already has produced its "guide to winnable criminal justice reforms" for 2023.  As explained over at the PPI site, "this briefing is not intended to be a comprehensive platform," but the list is intended "to offer policymakers and advocates straightforward solutions that would have the greatest impacts on reducing incarceration and ameliorating harms experienced by those with a conviction history, without further investments in the carceral system."   Via the email sent my way, here links to part of the guide and additional context:

The reforms focus on nine areas:

Each reform explains the problem it seeks to solve, points to in-depth research on the topic, and highlights solutions or legislation introduced or passed in states.  While this list is not intended to be a comprehensive platform, we’ve curated it to offer policymakers and advocates straightforward solutions that would have the greatest impacts without further investments in the carceral system and point to policy reforms that have gained momentum in the past year.  We have focused especially on those reforms that would reduce the number of people needlessly confined in prisons and jails.  We made a conscious choice to not include critical reforms that are unique to just a few states, or important reforms for which we don’t yet have enough useful resources to be helpful to most states.

November 16, 2022 in Criminal Sentences Alternatives, Reentry and community supervision, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Saturday, November 12, 2022

After getting 241-year sentence as juvenile, Bobby Bostic released on parole after 27 years in prison

In this post late last year, I provided an update on the case of Bobby Bostic, who had been sentenced in Missouri as a teenager in the 1990s to 241 years in prison.  Because MIssouri law was changed, Bostic was able to secure parole after serving over a quarter century behind bars.  And this past week, as reported in this lengthy local piece, Bostic was formally released on parole.  Here are excerpts from the piece with some legal context

Standing on the Missouri Capitol steps moments after being released from prison, Bobby Bostic said the first place he planned to visit was his mother’s grave in St. Louis — a city he’d last freely walked in 1995. “I’m a free man all because of you all who supported me,” Bostic, 43, said Wednesday morning while surrounded by friends and family donning matching sweatshirts that read “Bobby Bostic is Free.”

“While I cannot change what happened so many years ago,” he said, “I will mentor and teach young people to take a different path than I did when I was a young child myself.”

Bostic was imprisoned in 1995 for a crime he committed when he was 16, when he was an accomplice in two armed robberies in St. Louis.  Now-retired St. Louis judge Evelyn Baker sentenced Bostic to 241 years, with the first chance at parole being when Bostic turned 112.

Baker sentenced him to die in prison without giving him an official life sentence. “Your mandatory date to go in front of the parole board will be the year 2201,” Baker told Bostic at his sentencing date in 1997. “Nobody in this room is going to be alive in the year 2201.”

By sentencing him in this way, Bostic wasn’t protected under a 2010 U.S. Supreme Court ruling that mandated parole hearings for juveniles who’ve been sentenced to life without parole.  Bostic’s case fell into a legal loophole that existed in Missouri and only a few other states.  Missouri courts had held that this mandate didn’t apply to juveniles like Bostic, who received a sentence for multiple offenses that added up to life in prison.  All of Bostic’s legal remedies were exhausted by 2018, when his petitions to both the Missouri Supreme Court and U.S. Supreme Court were denied without comment.

But then in 2021, Republican Rep. Nick Schroer of O’Fallon successfully pushed legislation to allow juveniles who have been sentenced to 15 years or more to be eligible for parole after serving 15 years in prison.  Bostic is one of about 100 people who got a new chance at parole after the law passed....

Baker, who came to regret how she handled the case in 1995, became one of Bostic’s biggest allies, appearing as his advocate in front of the parole board last year.  “Bobby should’ve had a chance,” Baker said Wednesday, explaining that only after she sentenced him did she learn that teenagers’ brains aren’t fully developed.  “I had no awareness at that time that Bobby, by being certified to be tried as an adult, did not become an adult,” Baker said. “He was still a 16-year-old boy.”

On Dec. 12, 1995, Bostic and then 18-year-old Donald Hutson robbed a group of six people at gunpoint who were delivering Christmas gifts to a needy family in St. Louis, according to the ACLU’s 2017 petition to the U.S. Supreme Court.  During the robbery, two people were shot at.  One received a tetanus shot because the gunshot grazed his skin. The other testified that he was not injured at all.

After the robbery, Bostic and Hutson forced a woman into her car and drove off.  They robbed her and then, at Bostic’s insistence, let her go, the petition states.  Then, Bostic and Hutson threw their guns in the river and used the money to buy marijuana.  Bostic was pulled over by the police and ultimately charged with 18 felonies....

Bostic said he plans on taking things “one day at a time,” doing things he never had the chance to do — like learn to drive, use the internet and talk on a cell phone for the first time.  On Wednesday, he returned home to St. Louis. “It’s perfect because I know St. Louis,” he said, “But I’ve got to relearn it.”

Prior related posts:

November 12, 2022 in Offender Characteristics, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Wednesday, November 09, 2022

"Set up to Fail: Youth Probation Conditions as a Driver of Incarceration"

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

Youth probation is the most common form of punishment for youth in the United States criminal legal system, with nearly a quarter of a million youth currently under supervision.  Yet the role youth probation conditions play in the incarceration of youth has not been the focus of legal scholarship. Youth probation is a court-imposed intervention where young people remain at home under the supervision of a youth probation officer and are required to adhere to probation conditions, rules, and court-ordered conditions.  The orders rely on standardized terms on youth probation condition forms.  This is the first scholarly Article to excavate original youth probation condition forms.  It relies on data from 17 different urban and rural jurisdictions across the United States, including the five largest, and provides both a descriptive and perscriptive analysis of the problems with the design and execution of probation conditions.

Based on my analysis of hundreds of youth probation conditions in these different jurisdictions, I argue that standard youth probation conditions are part of a youth probation system that is structurally flawed in its design and execution, and that probation conditions that lack an adolescent framework cause real harm to youth and their families — particularly those who are most vulnerable, especially youth of color.  Simultaneously, youth probation systems concentrate power in probation officers, granting them inordinate discretionary power.  Although youth probation is viewed as the ideal alternative to detention, I argue that youth probation in its current structure is a driver of incarceration — that should be viewed as part of a carceral state — in need of thoughtful re-imagination: perhaps even abolition.

November 9, 2022 in Criminal Sentences Alternatives, Offender Characteristics, Reentry and community supervision | Permalink | Comments (0)

Wednesday, November 02, 2022

"Constitutional Limits on the Imposition and Revocation of Probation, Parole, and Supervised Release After Haymond"

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

In its Apprendi line of cases, the Supreme Court has held that any fact found at sentencing (other than prior conviction) that aggravates the punishment range otherwise authorized by the conviction is an “element” that must be proved beyond a reasonable doubt to a jury.  Whether Apprendi controls factfinding for the imposition and revocation of probation, parole, and supervised release is critically important.  Seven of ten adults under correctional control in the United States are serving terms of state probation and post-confinement supervision, and roughly half of all prison admissions result from revocations of such terms.  But scholars have yet to confront the effect of the Court’s Apprendi rulings on the regulation of conditional release in the states.  This Article takes on that project.

The Article makes three contributions.  First, it explains why and how the Apprendi doctrine applies to judicial findings at initial sentencing that either lengthen the term of conditional release an offender must serve or mandate incarceration instead of conditional release.  State courts continue to divide on these questions.

Second, regarding factfinding at the revocation stage, the Article tackles the many questions left open by the Court’s only effort to consider Apprendi in the revocation context — United States v. Haymond.  The Article defends two due process analyses, derived from past precedent and Justice Breyer’s controlling concurrence in Haymond, that are better suited than the Apprendi doctrine to protect against legislative overreach in the revocation context. Scholarship discussing Haymond has barely mentioned Justice Breyer’s analysis.  This Article gives his controlling concurrence the attention it deserves.  Combined, these due process analyses provide a sound middle ground between the rigid application of Apprendi’s rules to conditional release and the limitless use of revocation to punish new criminal conduct.

Third, the Article applies these  analyses to state statutes governing the imposition and revocation of probation and post-confinement supervision. This long-overdue state-centered focus provides needed guidance for policymakers designing conditional release policies that reserve more punitive sentences for more egregious cases.

November 2, 2022 in Procedure and Proof at Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Wednesday, October 05, 2022

Oklahoma criminal justice reform include expanding parole eligibility to reach nearly 15% more of its prison population

The Sooner State might have some current prisoners securing release from incarceration a bit sooner after today's signing of a notable state criminal justice reform bill.  This local piece, headlined "Gov. Kevin Stitt signs bill aimed at tackling criminal justice reform," provides some of the details:

Gov. Kevin Stitt on Wednesday signed a criminal justice reform bill to help inmates qualify for parole. "I firmly believe we should be locking up people that we’re afraid of, not that we’re mad at," Stitt said. "And that’s something that we’re pushing in our state."

House Bill 4369 gives those convicted of non-violent crimes more opportunities for parole. "What it does is it reduces the time on parole, but it also saves taxpayer dollars," state Rep. Brian Hill said.

Lawmakers introduced the Sarah Stitt Act along with House Bill 4369. A key part of the bill is making sure people can re-enter society successfully. "Like obtaining an ID, Social Security card, even a resume," Stitt said. "Isn’t that what we want? We want them back reunited with their children and involved in society, paying taxes and contributing."

The bill also helps connect people to jobs. "Through this initiative, you’ll now be able to work with the DOC to do the interview before someone comes out of incarceration so on day one you’re coming out with a job," Hill said....

About 3,600 inmates will be eligible once the law goes into effect, according to lawmakers.

This tracker indicates that there were just over 21,000 persons in Oklahoma prisons as of June.  So, if the new law makes 3600 eligible for earlier parole, perhaps as much as 15% of the Oklahoma prison population should benefit from these reforms.  And many more should benefit from other aspects of these seemingly "smart-on-crime" measure.  (I hope folks who know more about Oklahoma law will let me know if I have any of these details wrong.) 

October 5, 2022 in Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences | Permalink | Comments (1)

Tuesday, October 04, 2022

"Expedient Imprisonment: How Federal Supervised Release Sentences Violate the Constitution"

The title of this post is the title of this notable new article now available on SSRN and authored by Stefan Underhill and Grace Powell. (Among the reasons this article is interesting is because one of its authors is Chief Judge of the US District Court for the District of Connecticut.) Here is the article's abstract:

Supervised release sentences violate the grand jury clause and double jeopardy clause of the Fifth Amendment.  Because supervisees have a right to indictment, violation proceedings constitute prosecutions within the meaning of the Sixth Amendment.  Violation proceedings should not provide an expedient path to imprisonment but instead should afford defendants the full range of criminal constitutional rights.

UPDATE: The final published version of this article is now available here at 108 Va. L. Rev. Online 297 (Nov. 15, 2022).

October 4, 2022 in Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Friday, August 26, 2022

More notable details on the remarkable success of those released from federal prison under CARES Act

In this post on Monday, I flagged the NPR article which reported the remarkable fact that "only 17 people out of more than 11,000 who were released [early from federal prison under the CARES Act] committed new crimes, mostly drug related ones, while they were out."  Marshall Project reporter Keri Blakinger followed up this piece, as she explained on Twitter, by asking the federal Bureau of Prisons what those crimes exactly were.  BOP reported that 10 of the 17 were "drug related" and that only one of the 17 involved a violent offense ("aggravated assault"). 

In other words, depending on just how one wants to account for these data, it could be fair to say those released early from federal prison early under the  CARES Act had a better than 99.9% or even better than a 99.99% recidivism (or lack of recidivism) success rate.  Within a criminal justice system that often has all sort of folks lamenting all sorts of failures from all sorts of perspectives, I am so very eager to really lean into celebrating this extraordinary success.    

Prior related posts:

August 26, 2022 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (2)

Monday, August 22, 2022

Another encouraging report on those released under federal CARES Act

NPR has this notable new piece, headlined "Released during COVID, some people are sent back to prison with little or no warning," with a kind of good news/bad news reporting on persons released from federal prison during the pandemic under the CARES Act.  Here are extended excerpts: 

More than 11,000 people [under the bipartisan pandemic legislation called the CARES Act] have been released from federal prison in the last couple of years, to ride out the pandemic at home, often with their families and loved ones.  But that situation can be precarious.

In June 2021, [Eric] Alvarez and [his finance Eva] Cardoza took a 90-minute cab ride into the Bronx, so she could meet with staffers in charge of her supervision.  Cardoza, who had tested positive for marijuana, never came out of the building....  Cardoza's return to prison turned the family upside down.  She's now been back at Danbury for 14 months. Alvarez said she never got the chance to explain herself or challenge that single positive drug test.  "That's just mind boggling to me," Alvarez said.  "Where is the judicial system? Where is the fairness? Where is the 50-50? I don't see it."

Less than 0.2% of the people released committed new crimes while they were out

This week, the Bureau of Prisons told NPR that 442 people who were released during the pandemic have now returned to prison.  Only 17 people out of more than 11,000 who were released committed new crimes, mostly drug related ones, while they were out.  More than half, some 230 people including Eva Cardoza, got sent back for alleged alcohol or drug use.  Other cases involved technical violations.

Sakira Cook of the racial justice group Color of Change explained what that means.  "It could be as simple as failing to answer the phone when your probation officer calls you. It could be as simple as the ankle monitor giving an incorrect signal about your location," Cook said....

Most of the monitoring of people on home confinement is being done by private contractors, said Quinnipiac University School of Law professor Sarah Russell.  "There can be a lot of room for miscommunications and misunderstandings," Russell said.  Russell said that's all the more reason to ensure due process rights for people at risk of being sent back: the opportunity to see the evidence against them and to have a hearing before a neutral arbiter.

Last week, one of Russell's clients won those rights in court.  The decision by Judge Omar Williams is the first in the nation to hold that the current process for returning people to federal prison after home confinement is unconstitutional.

Russell said her other clients — moms with young children — are still nervous about having to leave their lives behind unexpectedly.  "My real hope is that this gets addressed at the national level through the Bureau of Prisons and through the Department of Justice," Russell said.  "They have a real opportunity to set clear procedures and criteria."

More lawsuits from people returned to prison are under way. The Bureau of Prisons said it can't talk about that pending litigation. But it is considering a new federal rule to make the process more clear.

Though I understand why the focus of this piece is on the opaque and seemingly unfair processes often adopted by BOP when returning people to custody, I am eager to highlight and stress the extraordinarily low recidivism rate being reported for those released under federal CARES Act.   FBI arrest data suggest (very very, roughly) that up to 1 in every 50 adults get arrested for a crime in the US each year.  That just over 1 in every 1000 persons released under federal CARES Act have been found to commit new crimes over the last 2+ years is truly remarkable.  (Or course, persons released under the CARES Act have been screened for riskiness and have very strong incentives to stay crime-free with a prison return looming.  Still, the same can arguably said for a large portion of persons released from prison, and yet usual recidivism rates are depressingly high for many other cohorts of former prisoners.)

I sense a lot of different groups and researchers are busy trying to better understand what factors contribute to desistance from crime these days.  The CARES Act data suggest this is a cohort that ought to be examined closely as we seek to engineer improved prison release mechanism.

UPDATE: I wrote to Professor Sarah Russell about the ruling from Judge Williams, which she was able to provide his 35-page opinion for posting here.  Folks will want to read the full 35-page opinion if working in this area, but this one line provides the main part of the holding: "this court finds that Respondents violated Petitioner’s due process rights in revoking her home confinement without a proper revocation hearing as described in Morrissey."

Download Tompkins Order on CARES Act return procedures

August 22, 2022 in Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Friday, August 19, 2022

California about to enact broadest criminal record sealing law in the nation

As reported in this AP piece, "California would have what proponents call the nation’s most sweeping law to seal criminal records if Gov. Gavin Newsom signs legislation sent to him Thursday by state legislators."  Here are the notable details:

The bill would automatically seal conviction and arrest records for most ex-offenders who are not convicted of another felony for four years after completing their sentences and any parole or probation. Records of arrests that don’t bring convictions also would be sealed.The bill would automatically seal conviction and arrest records for most ex-offenders who are not convicted of another felony for four years after completing their sentences and any parole or probation.  Records of arrests that don’t bring convictions also would be sealed. It would take effect in July, and excludes those convicted of serious and violent felonies, and felonies requiring sex offender registration.

Proponents say about 8 million Californians have a criminal or arrest record, or about one of every five state residents. A criminal record can trigger nearly 5,000 legal restrictions in California, many of which can limit job opportunities as well as the ability to get housing and educational opportunities, supporters said.  They estimate that 70 million people nationwide face nearly 50,000 legal restrictions based on a criminal or arrest record....

While the bill would not apply to serious or violent felonies, California has a narrow legal definition of violent crimes, including about two dozen of the most serious crimes like murder, voluntary manslaughter, attempted murder, kidnapping, assaults, arson, robbery and extortion.  The bill would apply to offenses like domestic violence, said Republican Sen. Shannon Grove, who joined all Republicans in the Senate and one Democrat — Sen. Melissa Hurtado of Sanger — in voting against the bill Thursday. “These things are very violent things even though they are not listed as serious and violent in the penal code,” Grove said.

Democratic state Sen. Maria Elena Durazo, the bill’s author, said in a statement that the lingering criminal records available through background checks create “a permanent underclass.” That can include, among others, “mothers that want to pursue new careers through education, fathers who want to coach, homeowners that want to join their HOA board, couples who may want to adopt, or grandchildren that want to care for their elderly grandparent.”

Seven reform organizations sponsored the bill, including Californians for Safety and Justice, which has pushed for numerous criminal justice like Proposition 47, the voter-approved ballot measure that reduced penalties for certain drug and property crimes in 2014.  Groups that opposed the bill include the 75,000-member Peace Officers Research Association of California, which argued California already offers more limited ways for lower level ex-felons to clear their records....

Aside from general criminal records, the bill would aid would-be teachers, who under current law must be denied teaching credentials if they have been convicted of a controlled substance offense.  The bill would bar the teacher credentialing commission from considering drug possession convictions that are more than five years old and have been expunged.  But the commission and school officials would still have access to other convictions dating to 2020.

The bill failed in the Assembly a year ago, with an amended version clearing the chamber in June. Among other things, supporters originally wanted records sealed after two years instead of four.  The Senate approved the amendments Thursday on an 28-10 vote, sending it to Newsom.

August 19, 2022 in Collateral consequences, Reentry and community supervision | Permalink | Comments (3)

Sunday, August 14, 2022

"How Little Supervision Can We Have?"

The title of this post is the title of this new article authored by Evangeline Lopoo, Vincent Schiraldi, and Timothy Ittner which is forthcoming in the Annual Review of Criminology. Here is its abstract:

Use of probation and parole has declined since its peak in 2007 but still intrudes into the lives of 3.9 million Americans at a scale deemed mass supervision.  Originally intended as an alternative to incarceration and a means of rehabilitation for those who have committed crimes, supervision often functions as a trip wire for further criminal legal system contact. This review questions the utility of supervision, as research shows that, in toto, it currently provides neither diversion from incarceration nor rehabilitation.  Analysis of national supervision, crime, and carceral data since 1980 reveals that supervision has little effect on future crime and is not a replacement for incarceration.  Case studies from California and New York City indicate that concerted efforts to reduce the scope of mass supervision can effectively be achieved through sentencing reform, case diversion, and supervisory/legal system department policy change, among other factors, without increasing crime.  Therefore, we suggest extensive downsizing of supervision or experimentation with its abolition and offer actionable steps to enact each possibility.

August 14, 2022 in Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (0)

Tuesday, July 26, 2022

"Inmate Assistance Programs: Toward a Less Punitive and More Effective Criminal Justice System"

The title of this post is the title of this new paper now available via SSRN and authored by Murat C. Mungan, Erkmen Giray Aslim and Yijia Lu.  Here is its abstract:

High recidivism rates in the United States are a well-known and disturbing problem.  In this article, we explain how this problem can be mitigated in a cost-effective manner through reforms that make greater use of humane methods that help inmates rather than using more punitive measures.

We focus on Inmate Assistance Programs (IAPs) adopted by many states.  Some of these programs provide inmates with valuable skill sets to utilize upon their release while others are geared towards treating mental health and substance use disorder problems.  IAPs are likely to reduce recidivism by lowering ex-convicts’ need to resort to crime for income as well as reducing their likelihood of committing crimes impulsively under the influence of substances and mental disturbances.  However, those who oppose IAPs quickly point out that they involve significant costs, and may reduce the general deterrence effects of criminal punishment.  These objections are based on simple economic theories which suggest that IAPs can reduce general deterrence by providing inmates with benefits that partially off-set the expected costs of punishment.  Thus, whether IAPs can be used in a cost-effective manner is an empirical question, whose answer depends on the trade-off between its recidivism reducing effects on the one hand, and its financial and general deterrence costs on the other.

Here, we provide the first empirical analysis of IAPs’ general deterrence effects after explaining why these effects are likely to be insignificant under a more complete economic theory which accounts for knowledge hurdles; discounting of future outcomes; impulsive behavior; and loss aversion.  Our empirical analysis focuses on the impact of increased welfare benefits provided to certain inmates by states which chose to opt out of the 1996 federal ban under the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA).  This act prevented drug offenders from using welfare benefits and food stamps.  Consistent with our theoretical predictions, and using a difference-in-differences design, we find no statistically significant impact of states’ decisions to opt out of the PRWORA bans on the general deterrence of drug crimes.

Subsequently, we build on prior economic theories as well as our empirical observations to explain how the criminal justice reforms that use shorter imprisonment sentences and more frequent use of IAPs can reduce crimes as well as the costs of administering the criminal justice system.  The cost savings from reducing sentences for repeat offenders can be used to finance IAPs without significantly affecting deterrence due to the ineffectiveness of lengthy imprisonment sentences.  Thus, our analysis suggests IAPs can, in fact, be used in a cost-effective manner to reduce crime, and are valuable and humane tools that policy makers ought to consider as alternatives to punitive measures.

July 26, 2022 in Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Friday, July 08, 2022

Split Wisconsin Supreme Court rejects transgender woman's arguments for changing her name on sex offender registry

The Wisconsin Supreme Court issued a notable 4-3 ruling yesterday in State v. CG, 2022 WI 60 (Wisc. July 7, 2022) (available here), rejecting interesting arguments regarding the state's sex offender registry. Here is part of the start of the opinion of the court:

When Ella was 15 years old, she and another teenager, Mandy, sexually assaulted their supposed friend, 14-year-old Alan ... [and state] law required Ella to register as a sex offender.... Ella filed a postdispositional motion to stay registration....

Ella's legal arguments are grounded in her gender identity. She entered the juvenile justice system as a male. Sometime thereafter, Ella realized she was a transgender girl, i.e., a biological male who self-identifies as a girl. Ella has a traditionally masculine legal name she believes is incompatible with her gender identity.  Ella complains she is bound to "out herself" as a male anytime she is required to produce her legal name.  If Ella were not a sex offender, she could petition the circuit court for a legal name change under Wis. Stat. § 786.36 (2019–20);  however, another statute, Wis. Stat. § 301.47(2)(a), prohibits her from filing such a petition because she is a sex offender, although the State argues it does not prohibit her from using an alias provided she notifies the Department of Corrections (DOC) of her intent to do so in advance.

Ella raises two legal issues for our consideration.  She argues requiring her to register as a sex offender: (1) constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution as applied to her; and (2) violates her right to free speech under the First Amendment to the United States Constitution. Both arguments rest on Ella's inability to change her legal name to conform to her gender identity.

We reject both arguments.  Consistent with well-established precedent, we hold Ella's placement on the sex offender registry is not a "punishment" under the Eighth Amendment.  Even if it were, sex offender registration is neither cruel nor unusual. We further hold Ella's right to free speech does not encompass the power to compel the State to facilitate a change of her legal name.

Here is a key paragraph from the start of the dissent authored by Justice Bradley:

Although I agree that Ella's Eighth Amendment claim fails, I write separately to address the majority's First Amendment analysis and conclusions. It cuts short the First Amendment analysis by determining that the First Amendment isn't even implicated by the name change ban that accompanies Ella's registration as a sex offender. In making this determination, the majority takes an overly restrictive view of expressive conduct and denigrates the import of a legal name.

July 8, 2022 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (2)

Thursday, July 07, 2022

Notable Seventh Circuit panel discussion of judicial challenges when revoking supervised release

As detailed in this post last month, the latest issue of the Federal Sentencing Reporter explores in depth the huge (but too often overlooked) issue of community supervision in the federal criminal justice system.  That issue came to mind when I reviewed the very interesting new Seventh Circuit decision in US v. Shaw, No. 21-1692 (7th Cir. July 6, 2022) (available here), which was brought to my attention by a kind reader.  Here is how the thoughtful and thorough majority opinion in Shaw starts and a key passage:

Terrance Shaw violated multiple conditions of his supervised release. The district court revoked his supervised release and sentenced him to two years’ imprisonment — well above the range recommended by the Sentencing Commission’s policy statements.  The court did not mention the sentencing factors from 18 U.S.C. § 3583(e), the statute that governs revocation of supervised release, as grounds for the upward variance.  The court instead explained that it was sending Shaw to prison to “help” him and give him a chance to access rehabilitative programs.  Congress has directed sentencing courts to recognize that “imprisonment is not an appropriate means of promoting correction and rehabilitation.” 18 U.S.C. § 3582(a).  Courts are thus precluded from imposing or lengthening a prison term to promote an offender’s rehabilitation. Tapia v. United States, 564 U.S. 319, 325–26 (2011). Because the record suggests that the district court lengthened a term of imprisonment to rehabilitate Shaw, we vacate Shaw’s sentence and remand for further proceedings....

[W]e recognize that courts are free to discuss the availability of rehabilitative programs and even encourage defendants to use them.  But by relying on rehabilitation as the sole basis for an upward variance, the court crossed the line from permissible comments to impermissible consideration. Because Tapia applies to both the imposition of a prison sentence and the lengthening of one, the court’s reliance on rehabilitation to impose the upward variance warrants remand.

We also recognize the difficult position that district courts find themselves in under Tapia.  On one hand, 18 U.S.C. § 3583(e) requires courts to consider several purposes of sentencing — including rehabilitation — before revoking an offender’s supervision or imposing a sentence.  On the other, § 3582(a) forbids courts from relying on rehabilitation as a reason for prison time.  Combined, these provisions seemingly force courts to walk a tightrope where they must both demonstrate their consideration of the offender’s need for rehabilitation while also disavowing that consideration as a reason for any resulting term of imprisonment.

Judge Hamilton wrote a concurring opinion to highlight how "Tapia and the statute put district judges in a difficult position."  Here is how his interesting discussion concludes:

When I read this sentencing transcript, I see a judge who was patient, humane, wise, and fair.  Judge McDade was dealing with an unusually difficult case.  The defendant had been provided multiple opportunities to straighten out his life, including a path to an unusually well-paying job in the middle of the pandemic.  He kept wasting those opportunities. The judge’s choice to revoke Shaw’s supervised release and to send him to prison was reasonable and easily predictable.  As the lead opinion notes, Shaw had repeatedly violated important conditions of his supervised release.  Sanctions less severe than prison had not had any noticeable effect.  The judge was not required to credit Shaw’s assurances that this time he would finally follow through on therapy and other rehabilitative programs if they were imposed again as conditions of supervised release.  A more legalistic explanation of Shaw’s revocation sentence on remand should pass muster as long as the district court makes explicit reasons that were left implicit in this transcript and avoids hinting that goals of rehabilitation in prison affected the fact or length of the prison sentence.

Tapia is just one example of how federal sentencing law has become more and more complex, with more and more opportunities for reversible error.  A district judge can reduce the risk of reversible error by disengaging from the individual defendant and the difficult challenges: Just calculate the Guidelines and follow them, perhaps noting that any tricky guideline issue had no effect on the bottom line and that the § 3553(a) factors control.  As was sometimes true during the years when the Sentencing Guidelines were binding, an error-free sentencing hearing can still sound a lot like an arithmetic problem.  A remand like this one further encourages that sort of mechanical march through the Guidelines and the statutory factors.

Yet we hope for more.  We want the sentencing judge to engage with the defendant, the offense, and victims — understanding the stories behind the crime and the prospects for the future.  We want the judge to sentence the defendant as an individual with his own history and characteristics and to tailor the sentence to those individual circumstances. See generally Concepcion v. United States, 142 S. Ct. —, — (2022).

That’s what Judge McDade was doing in this difficult case, trying to reach Shaw in any way he could: drawing on his own history, drawing on concepts of faith, ethics, and sin, and explaining in almost parental terms why the sentence needed to be more severe than the time-served slap on the wrist that Shaw sought. I view this remand as compelled by § 3582(a) and Tapia, but unfortunate and otherwise unnecessary.

July 7, 2022 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, July 03, 2022

"What the end of Roe v. Wade will mean for people on probation and parole"

The title of this post is the title of this notable briefing authored by Wanda Bertram and Wendy Sawyer of the Prison Policy Initiative giving attention to how the Supreme Court's Dobbs's ruling will impact the large number of women on probation or parole. Here is how it gets started:

With several states preparing to criminalize abortion now that Roe v. Wade is over, and some states talking about criminalizing traveling out of state to get an abortion, it’s worth remembering that for many people on probation and parole, traveling out of state for abortion care is already next to impossible.  On any given day in the U.S., 666,413 women are on probation (a community-based alternative to incarceration) or parole (the part of a prison sentence that someone serves in the community).  In many jurisdictions — for instance, Louisiana, Tennessee, Kentucky, Idaho, Texas, and the federal system, as well as some juvenile probation systems — it’s common for people on probation and parole to face restrictions on where they can travel, whether they can move to another county or state, and with whom they can “associate” (including, potentially, people who assist in coordinating abortion access, where such help is criminalized).  All of these restrictions will make it harder for people under supervision to get abortion care.

In the last few days, many news outlets have reported on how people in prison can be blocked from seeking an abortion, especially in states where abortion is already illegal.  (Ironically, as we’ve discussed before, prisons deny people quality pregnancy care even as they deny abortion access.)  The end of Roe v. Wade will create new barriers to abortion care for incarcerated people, since it will likely trigger

But an even greater number of people on probation and parole stand to be affected: About 231,000 women are in prison or jail on any given day, but several times as many women are on probation and parole, the result of gendered differences in offense types: women are more likely than men to be serving sentences for lower-level property and drug crimes

In the thirteen states with abortion ban “trigger laws” on the way, more than 200,000 women are under probation and parole supervision, which will make it difficult or impossible for many of them to travel out of state for an abortion, or potentially even talk to people coordinating abortion care, given the typical restrictions of probation and parole.

A few prior related posts:

July 3, 2022 in Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (0)

Friday, July 01, 2022

Two different criminal justice reforms now effective in two southern states

The start of July marks the official start for two notable and notably different criminal justice reforms in Florida and Tennessee. Here are parts of press accounts:

"Florida criminal justice reform laws go into effect Friday"

Florida’s new law making reforms to the state’s criminal justice system is set to go into effect on Friday. Senate Bill 752, signed into law by Gov. Ron DeSantis (R) earlier this month, will allow Floridians on probation to receive new education and workforce credits that will shorten their probation terms and help them gain a GED or other degree or vocational certification and maintain full-time employment.

Individuals under this law can earn at least 30 days off their supervision terms for each six-month period in which they work for at least an average of 30 hours per week. It also gives them the ability to earn 60 days off their probation term for each completed educational activity....

Multiple organizations and coalitions including the REFORM Alliance led the push for the Florida Legislature to pass the bill. The REFORM Alliance is a nonprofit social justice organization founded in 2019 by rapper Meek Mill, Fanatics CEO Michael Rubin and rapper and mogul Shawn “Jay Z” Carter.  “This new law will help more than 150,000 on probation in Florida by removing barriers to their success and rewarding them for doing well,” Rubin, who serves as a co-chair for the organization, said in a statement. “Not only was this unanimously supported by members of the Florida legislature, but probation officers, business owners, and community service providers all joined us in the effort to pass this new law.”

"New public safety laws to take effect on July 1 in Tennessee"

A truth in sentencing act is among a number of new criminal and public safety laws in Tennessee that are slated to go into effect on July 1.... The new law requires a person convicted of certain offenses to serve 100% of the sentence imposed before becoming eligible for release.

The new sentencing act requires felons convicted of eight different offenses to serve 100% of their sentences undiminished by any sentence reduction credits for which the person is eligible or earns.  Those eight offenses are attempted first-degree murder, second-degree murder, vehicular homicide, especially aggravated kidnapping, especially aggravated robbery, carjacking and especially aggravated burglary.

The law also identifies another 16 offenses that require 100% of the sentence to be served unless the inmate earns a satisfactory program performance.  In such cases, an inmate can receive credits for a GED or job training that can be used for parole eligibility once a person has served a minimum of 85% of their sentence.

July 1, 2022 in Reentry and community supervision, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences | Permalink | Comments (2)

Monday, June 27, 2022

US Sentencing Commission releases another recidivism report examining "status points" in criminal history calculations

Despite lacking a quorum, the US Sentencing Commission keeps churning out a remarkable amount of research in recent times, especially in the area of recidivism of federal offenders.  Today brings this notable notable USSC report on recidivism and criminal history under the title "Revisiting Status Points."  The term "status points" is a short-hard reference to the two points added to a defendant's criminal history score under guideline § 4A1.1(d) if he committed the offense while still serving a sentence in another case (eg, while being on probation or parole).  This webpage provides an overview and key findings from the new report:

Overview

In 2005, the Commission examined status points (addressed in §4A1.1(d)) as part of a broader analysis of how well the guidelines’ criminal history computation predicts recidivism.  This report revisits the examination of status points with greater focus, including a detailed analysis of their application and significance.  The report begins by outlining how criminal history is calculated under the guidelines and by reviewing prior Commission research on the association between criminal history and recidivism.  The report then examines how many offenders received status points in the last five fiscal years and compares them to offenders who did not receive status points.  Next, the report analyzes the rearrest rates for offenders with and without status points who were released from prison or began a term of probation in 2010.  Finally, the report considers how much status points contribute to the criminal history score’s prediction of rearrest.

Key Findings

In the last five fiscal years:

  • Over one-third of federal offenders (37.5%) received two “status points” under §4A1.1(d) as part of their criminal history scores. For 61.5 percent of such offenders, the inclusion of the two points resulted in a higher Criminal History Category.
  • The vast majority of offenders who received status points (92.6%) had criminal history scores that placed them in Criminal History Category III and higher, compared to a little less than half of offenders who did not receive status points (47.0%)....

Among offenders who were released in 2010:

  • Those who received status points were rearrested at similar rates to those without status points who had the same criminal history score. For example, among offenders whose criminal history score was seven, 69.6 percent of those with status points and 70.4 percent of those without status points were rearrested in the eight years after release.
  • Three-fifths (61.1%) of offenders who received status points had five or more criminal history points for prior sentences (i.e., before adding in two status points). These offenders had a statistically similar rearrest rate to offenders without status points who had the same number of points for prior sentences.
  • The remaining two-fifths (38.9%) of offenders who received status points had one to four criminal history points for prior sentences (i.e., before adding in two status points). These offenders had a statistically higher rearrest rate than offenders without status points who had the same number of points for prior sentences.
  • Status points only minimally improve the criminal history score’s successful prediction of rearrest — by 0.2 percent. With status points included in the calculation for eligible offenders, the score successfully predicts rearrest 65.1 percent of the time, compared to 64.9 percent of the time with status points removed.

June 27, 2022 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Reentry and community supervision | Permalink | Comments (0)

Tuesday, June 21, 2022

US Sentencing Commission releases another report on "Length of Incarceration and Recidivism"

A few years ago, as noted in this blog post, the US Sentencing Commission released a report titled "Length of Incarceration and Recidivism."  Today, the USSC has issued another report under the same title, and this webpage provides an overview and key findings:

Overview

This study, the seventh in the recidivism series, examines the relationship between length of incarceration and recidivism. In 2020, the Commission published its initial comprehensive study on length of incarceration and recidivism.  In that study, which examined offenders released in 2005, the Commission found that federal offenders receiving sentences of more than 60 months were less likely to recidivate compared to a similar group of offenders receiving shorter sentences.  This study replicates the prior analysis, however, it examines a more current cohort of federal offenders released in 2010.  This study examines the relationship between length of incarceration and recidivism, specifically exploring three potential relationships that may exist: incarceration as having a deterrent effect, a criminogenic effect, or no effect on recidivism.

This study examines 32,135 federal offenders who satisfied the following criteria:

  • United States citizens;
  • Re-entered the community during 2010 after discharging their sentence of incarceration or by commencing a term of probation;
  • Not reported dead, escaped, or detained;
  • Have valid FBI numbers which could be located in criminal history repositories (in at least one state, the District of Columbia, or federal records).

Key Findings

  • The results of this study, examining federal offenders released in 2010, are almost identical to the findings established in prior Commission research examining federal offenders released in 2005.  In both studies, the odds of recidivism were lower for federal offenders sentenced to more than 60 months incarceration compared to a matched group of offenders receiving shorter sentences.
  • The odds of recidivism were approximately 29 percent lower for federal offenders sentenced to more than 120 months incarceration compared to a matched group of federal offenders receiving shorter sentences.
  • The odds of recidivism were approximately 18 percent lower for offenders sentenced to more than 60 months up to 120 months incarceration compared to a matched group of federal offenders receiving shorter sentences.
  • For federal offenders sentenced to 60 months or less incarceration, the Commission did not find any statistically significant differences in recidivism.

June 21, 2022 in Data on sentencing, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (4)

Tuesday, June 14, 2022

"Recidivism And Federal Bureau Of Prisons Programs Vocational Program Participants Released In 2010"

The title of this post is the title of this new report form the US Sentencing Commission.  This USSC webpage provides this basic overview and "Key Findings":

This report is the sixth in a series continuing the Commission’s study of the recidivism of federal offenders released in 2010. In this report, the Commission provides an analysis of data on the recidivism of federal offenders who participated in Federal Bureau of Prisons (BOP) vocational programs while incarcerated.  The study examines whether completion of vocational programs offered by the BOP impacted recidivism among a cohort of federal offenders who were released from prison in calendar year 2010.  The report combines data regularly collected by the Commission, Federal Bureau of Investigation (FBI) criminal history records, and data on program completion and participation provided by the BOP.

In this report, Vocational Program Participants were offenders who participated in one of the following programs:

Occupational Education Program (OEP)

  • The first group comprises 7,310 offenders who participated in at least one OEP vocational or technical training course.
  • OEP offers a variety of programs where participants can take courses in vocational and occupationally oriented areas for the purpose of obtaining marketable skills.

Federal Prison Industries (FPI)

  • The second group comprises 5,082 offenders who participated in FPI.
  • FPI provides offenders with work simulation programs and training opportunities through the factories it operates at BOP facilities.

Occupational Education Programs (OEP)

  • Although the recidivism rate for offenders who completed an OEP course was lower than that of offenders who did not participate in an OEP course (48.3% compared to 54.1%), the difference in their recidivism rates was not statistically significant after controlling for key offender and offense characteristics such as criminal history category, age at release, gender, and crime type.

Federal Prison Industries (FPI)

  • Although the recidivism rate for offenders who participated in FPI was higher than that of offenders who did not participate in FPI (55.0% compared to 52.0%), the difference in recidivism rates was not statistically significant after controlling for key offender and offense characteristics, such as criminal history category, age at release, gender, and crime type.

NOTE: This study focuses solely on recidivism reduction and is not meant to analyze whether other program goals were achieved.

June 14, 2022 in Prisons and prisoners, Reentry and community supervision | Permalink | Comments (0)

Latest issue of FSR examines "Federal Community Supervision"

M_fsr.2022.34.5.coverThe June 2022 issues of the Federal Sentencing Reporter, which is now available online here, seeks to shine a bright light on the huge (but too often overlooked) issue of community supervision in the federal criminal justice system.  As an editor FSR, I can say all the editors were deeply grateful for LawProf Jacob Schuman’s extraordinary efforts and expertise in envisioning and shepherding this issue from start to finish.  This terrific issue includes a dozen original articles, and Prof Schuman's introductory essay, titled "One Nation under Supervision," sets the tone at the outset this way: 

This Special Issue of Federal Sentencing Reporter asks whether the federal criminal justice system can reconcile the dueling purposes of community supervision: public safety and rehabilitation.  While the federal government is neither as vast nor as powerful as the Almighty, it does supervise over 100,000 people serving terms of probation, parole, and supervised release.  Combined with the approximately 25,000 federal criminal defendants on pretrial release and diversion, the total population under federal supervision equals the number of people in federal jails and prisons.  While U.S. Probation and Pretrial Services offers an array of transitional services, and nearly a quarter of the defendants under federal supervision receive judiciary-funded drug treatment, judges also revoke supervision in approximately a third of all cases, imposing an average eleven-month prison sentence and accounting for 15% to 20% of all federal sentencings.  A term of supervision offers help and support, yet the threat of revocation imposes a significant liability, offering a mixed blessing for federal criminal defendants.

The last time FSR dedicated an Issue to federal community supervision was in 1994.  Almost thirty years later, the population under federal supervision has nearly tripled.  At the same time, innovative reentry courts and other approaches to supervision have sprung up in federal districts across the country.  In 2019, the Supreme Court struck down for the first time a provision of the supervised release statute as violating the jury right, splitting 4-1-4 on the reasoning and revealing deep divisions among the justices about the law of community supervision.  The time is ripe to reflect on these developments and chart the future of community supervision in the federal criminal justice system.

Here is a list of the terrific articles and authors in this great new FSR issue

One Nation Under Supervision by Jacob Schuman

“Breach of Trust” and U.S. v. Haymond by Fiona Doherty

The Reconstruction of Federal Reentry by Scott Anders, Jay Whetzel

The Burden of Criminal Justice Debt in Federal Community Supervision by Laura I Appleman

Rethinking Supervised Release Discovery with an Eye Toward Real “Fundamental Fairness” by Alison K. Guernsey

A Tale of Two Districts: Supervised Release in the District of Arizona and the Northern District of California by Elisse Larouche, Jon M. Sands, August Sommerfeld

Reenvisioning Success: How a Federal Reentry Court Promotes Desistance and Improves Quality of Life by Maya Sosnov, Leslie Kramer

The Judicial Role in Supervision and Reentry by Jacob Schuman

What’s Missing? The Absence of Probation in Federal Sentencing Reform by Cecelia Klingele

Reducing the Federal Prison Population: The Role of Pretrial Community Supervision by Christine S. Scott-Hayward, Connie Ireland

COVID-19 Vaccination as a Condition of Federal Community Supervision by Nila Bala

Building a Fair and Just Federal Community Supervision System: Lessons Learned from State and Local Reform Efforts by Miriam Krinsky, Monica Fuhrmann

June 14, 2022 in Procedure and Proof at Sentencing, Recommended reading, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Wednesday, May 25, 2022

New Executive Order from Prez Biden, though mostly on policing, includes some sentencing and corrections matters

This new "FACT SHEET" from the White House, titled "President Biden to Sign Historic Executive Order to Advance Effective, Accountable Policing and Strengthen Public Safety," provides an overview of what the latest presidential EO will cover in the criminal justice space. Though focused mostly on policing issues, I was intrigued to see this passage at the very end of the fact sheet:

Reforms Our Broader Criminal Justice System

Directs a government-wide strategic plan to propose interventions to reform our criminal justice system.  A new committee with representatives from agencies across the federal government will produce a strategic plan that advances front-end diversion, alternatives to incarceration, rehabilitation, and reentry.  The Attorney General will also publish an annual report on resources available to support the needs of persons on probation or supervised release.

Improves conditions of confinement. The Attorney General, in consultation with the Secretary of Health and Human Services, will update procedures as necessary to increase mitigation of Covid-19 in correctional facilities; expand the publication and sharing of vaccination, testing, infection, and fatality data disaggregated by race, ethnicity, age, sex, disability, and facility; and to identify alternatives to facility-wide lockdowns and restrictive housing to reduce the risk of transmission.  The Attorney General will also report to the President on steps to limit the use of restrictive housing and improve conditions of confinement, including with respect to the incarceration of women, juveniles, and persons in recovery.

Requires full implementation of the FIRST STEP Act. The Attorney General will update DOJ policy as necessary to fully implement the FIRST STEP Act and to report annually on implementation metrics, including an assessment of any disparate impact of the PATTERN risk assessment tool and steps to correct any such disparities.

UPDATE: Here is the full detailed "Executive Order on Advancing Effective, Accountable Policing and Criminal Justice Practices to Enhance Public Trust and Public Safety" from the Biden White House.

May 25, 2022 in Criminal justice in the Biden Administration, Criminal Sentences Alternatives, FIRST STEP Act and its implementation, Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (4)

Thursday, May 19, 2022

"Paying for a Clean Record"

The title of this post is the title of this new paper authored by Amy Kimpel and just published in the Journal of Criminal Law & Criminology. Her is its abstract

Prosecutors and courts often charge a premium for the ability to avoid or erase a criminal conviction.  Defendants with means, who tend to be predominantly White, can often pay for a clean record.  But the indigent who are unable to pay, and are disproportionately Black and Brown, are saddled with the stigma of a criminal record.  Diversion and expungement are two popular reforms that were promulgated as ways to reduce the scale of the criminal legal system and mitigate the impact of mass criminalization.  Diversion allows a defendant to earn dismissal of a charge by satisfying conditions set by the prosecutor or court, thereby avoiding conviction.  Expungement seals or erases the defendant’s record of arrest or conviction.  Some diversion and expungement programs are cost-free, but most are not.  Yet a criminal record carries its own costs.  A criminal record can limit where an individual can live, go to school, and whether they receive public benefits.  As 93% of employers conduct background checks on job applicants, the inability to avoid a criminal record can create barriers to employment and the accumulation of wealth.  Costly diversion and expungement programs further calcify race and class divides, contributing to the construction of a permanent underclass.

This Article examines the promises and pitfalls of diversion and expungement as means to combat mass criminalization.  These two mechanisms work in tandem to provide access to a “clean record,” but not enough attention has been paid to the dangers they present due to differential access to clean records based on financial means.  This Article considers legal challenges to the current schemes and explains how requiring defendants to pay for a clean record enables courts and prosecutors to profit from the perpetuation of racial caste.  Ultimately, this Article argues that the impacts of diversion and expungement programs are more modest than reformers claim, and that these programs need to be offered at no cost if they are to succeed in achieving the goal of reducing racial disparities in our criminal courts and in society at large.

May 19, 2022 in Collateral consequences, Race, Class, and Gender, Reentry and community supervision | Permalink | Comments (3)

Tuesday, May 17, 2022

US Sentencing Commission releases notable new report on recidivism rates for federal prisoners completing drug programs

The US Sentencing Commission today released this lengthy new report titled "Recidivism and Federal Bureau of Prisons Programs: Drug Program Participants Released in 2010." This report is the fifth in a series continuing the USSC's detailed examination of recidivism by federal offenders released in 2010.  This USSC webpage provides this brief account of the coverage and findings of the report:

In this report, the Commission provides an analysis of data on the recidivism of federal offenders who participated in Federal Bureau of Prisons (BOP) drug abuse treatment while incarcerated. The study examines whether completion of drug programs offered by the BOP impacted recidivism among a cohort of federal offenders who were released from prison in calendar year 2010. The report combines data regularly collected by the Commission, Federal Bureau of Investigation (FBI) criminal history records, and data on program completion and participation provided by the BOP.

In this report, Drug Program Participants were offenders who participated in one of the following programs:

  • Residential Drug Abuse Program (RDAP)
    • The first group comprises 8,474 offenders who the BOP marked as eligible to participate in RDAP while serving time in BOP custody.
    • RDAP is the BOP’s “most intensive” drug treatment program and requires that participants receive treatment in a specialized unit that houses only RDAP participants
       
  • Non-Residential Drug Abuse Program (NRDAP)
    • The second group comprises 4,446 offenders who were marked as eligible to participate in NRDAP.
    • NRDAP consists of drug treatment, conducted primarily in a group setting, over the course of 12 to 24 weeks.

    Key Findings

    This study observed a significant reduction in the likelihood of recidivism for offenders who completed the Residential Drug Abuse Treatment Program or the Non-Residential Drug Abuse Treatment Program.

    • RDAP Completers had lower rates of recidivism, compared to eligible offenders who did not complete or participate in the program. Less than half of RDAP Completers (48.2%) recidivated in the eight-year follow-up period of this study, compared to 68.0 percent of RDAP Eligible Non-Participants.
      • RDAP Completers were 27 percent less likely to recidivate compared to RDAP-Eligible Non-Participants.
      • RDAP Completers had higher post-release rates of drug-related recidivism, compared to RDAP Participants and RDAP Eligible Non-Participants.
    • NRDAP Completers had lower recidivism rates compared to offenders who did not complete or participate in the program. Nearly half (49.9%) of offenders who completed NRDAP recidivated during the study period, compared to over half (54.0%) of NRDAP Eligible Non-Participants.
      • NRDAP Completers were 17 percent less likely to recidivate compared to eligible non-participants and offenders with a history of substance abuse who served at least five months in BOP custody.

May 17, 2022 in Detailed sentencing data, Drug Offense Sentencing, Reentry and community supervision | Permalink | Comments (2)

Friday, May 13, 2022

Split Second Circuit panel debates required procedures for imposing more than a year when revoking supervised release

A helpful reader made sure I did not miss the interesting and lengthy Second Circuit panel discussion in US v. Peguero, No. 20-3798 (2d Cir. May 13, 2022) (available here).  The issue generating lengthy discussion in the case concerns the required procedures for revoking his term of supervised release.  Here is portion of the majority opinion: 

Although the issue was neither raised nor briefed by either party, the dissent asserts that Section 3583(e)(3), which allows a judge to revoke supervised release based upon a finding of new criminal conduct, is unconstitutional.  In particular, the dissent contends that a revocation hearing based on new conduct punishable by more than one year in prison violates a defendant’s right to indictment, right to confront witnesses, right to a jury trial, and right to remain free unless proven guilty beyond a reasonable doubt.  In support of this proposition, the dissent relies upon the “essential differences” between terms of probation or parole — which the dissent contends do not require such constitutional protections — and supervised release.  We respectfully disagree.

As an initial matter, the dissent’s proposed holding is contrary to our well-settled precedent, from which this panel is not free to deviate.  In addition to the requirement that we adhere to binding precedent, we conclude that the dissent’s approach is unsupported by the Constitution itself in light of the clear and direct connection between a supervised release term (and its accompanying conditions) and the original conviction and sentence.  Moreover, we are unpersuaded by the dissent’s contention that there are distinctive characteristics of a supervised release revocation proceeding, as compared to parole and probation, that would justify the differing constitutional protections the dissent proposes. Finally, we believe that the dissent’s proposed rule would have a drastic and devastating impact on the effective functioning of the criminal justice system.

The dissent by Judge Underhill starts this way:

Carlos Peguero was sentenced to twenty-eight months in federal prison for criminal conduct proscribed by the State of New York.  Peguero was not federally indicted for the felony crime of assault, was denied the right to confront witnesses against him, was never advised of his right to a jury trial, and was found “guilty” by a preponderance of the evidence.  In short, Peguero was imprisoned without being afforded any of the fundamental Constitutional rights that protect citizens from arbitrary imprisonment by the government.

I acknowledge that the district court acted consistently with existing precedent of this Court, and that the majority feels constrained to follow that precedent and to affirm.  Importantly, however, no decision of the Supreme Court or this Court has ever analyzed whether a person on supervised release facing violation charges punishable by more than one year in prison has a right to indictment on those charges.  Nor has either Court ever held that proceedings that require indictment do not constitute a “prosecution” and therefore can be decided without affording the accused his Sixth Amendment rights.  Because this appeal raises Confrontation Clause issues, and because I conclude that Peguero had the right to be indicted for his claimed supervised release violations, I further conclude that he had the right to confront witnesses against him.  In my view, prior decisions allowing a judge to sentence a person to prison for more than a year based on a violation of supervised release without providing such essential Constitutional protections are misguided and based on unsupportable legal fictions.  Accordingly, I respectfully dissent.

May 13, 2022 in Procedure and Proof at Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (2)

Thursday, May 05, 2022

Important new report explores "The Limits of Recidivism: Measuring Success After Prison"

26459-0309276977-450The quoted portion of this post is the title of this important new report released by the National Academies of Sciences, Engineering and Medicine.  Here is an account of this report from the NAS website:

Nearly 600,000 people are released from state and federal prisons annually. Whether these individuals will successfully reintegrate into their communities has been identified as a critical measure of the effectiveness of the criminal legal system.  However, evaluating the successful reentry of individuals released from prison is a challenging process, particularly given limitations of currently available data and the complex set of factors that shape reentry experiences.

The Limits of Recidivism: Measuring Success After Prison finds that the current measures of success for individuals released from prison are inadequate.  The use of recidivism rates to evaluate post-release success ignores significant research on how and why individuals cease to commit crimes, as well as the important role of structural factors in shaping post-release outcomes.  The emphasis on recidivism as the primary metric to evaluate post-release success also ignores progress in other domains essential to the success of individuals returning to communities, including education, health, family, and employment.

In addition, the report highlights the unique and essential insights held by those who have experienced incarceration and proposes that the development and implementation of new measures of post-release success would significantly benefit from active engagement with individuals with this lived experience.  Despite significant challenges, the report outlines numerous opportunities to improve the measurement of success among individuals released from prison and the report’s recommendations, if implemented, will contribute to policies that increase the health, safety, and security of formerly incarcerated persons and the communities to which they return.

The full report runs a full 200 pages, and this three-page pdf provides highlights.  And this press release also provides this additional overview and more summary details, and here is an excerpt:

Recidivism is an inadequate measurement of success after release from prison, says a new report from the National Academies of Sciences, Engineering, and Medicine. The report recommends researchers develop supplementary measures that evaluate success across multiple areas of a person’s life after prison — including employment, housing, health, social support, and personal well-being — and that measure interactions with the criminal justice system with more nuance. Federal efforts should be directed to developing national standards for recidivism data and new measurements....

“Our report draws on the expertise of individuals who have experienced reentry, those who work in corrections and reentry services, as well as victims’ advocates and many other communities — and it’s clear that it’s time we recognize the numerous shortcomings of relying exclusively on recidivism data,” said Richard Rosenfeld, Curators’ Distinguished Professor Emeritus of Criminology and Criminal Justice at the University of Missouri-St. Louis, and chair of the committee that wrote the report. “Better measures could open many doors for better decision-making and policy.”...

Recidivism is also limited in that it is a binary measure, says the report. Decades of research have shown that ceasing criminal activity is a process and may involve setbacks. Recidivism rates fail to capture indicators of progress toward the cessation of criminal activity, such as reductions in the seriousness of criminal activity or increases in time between release and a criminal event. Researchers should supplement recidivism rates with these measures of moving away from crime, the report says.

The report recommends the development of new measures of post-release success that take into account a number of factors in people’s lives after incarceration, including personal well-being, education, employment, housing, family and social supports, health, civic and community engagement, and legal involvement.  In particular, significant efforts — including by federal agencies — should be directed to developing national standards for measuring post-release success.  Creating national standards could make data easier to compare across programs and jurisdictions. Creating a website that contains core measures and data collection instruments could hasten development of these standards, the report says.

Federal agencies, including the National Institute of Justice, Bureau of Justice Statistics, Bureau of Justice Assistance, and National Institutes of Health, should convene research panels to assess new measures of post-release success.  These agencies should also solicit grant proposals from researchers and practitioners who work collaboratively with formerly incarcerated people to review new measures.

Researchers should also develop new ways to measure barriers to and facilitators of post-release success, which could help improve understanding of how to best serve those released from prison. Individuals released from prison face a number of significant barriers, such as returning to communities without adequate employment opportunities, or lacking access to mental health counseling, among others — and better measures could enhance our understanding of which community and policy factors make post-release success more or less likely.

May 5, 2022 in Data on sentencing, Detailed sentencing data, Reentry and community supervision | Permalink | Comments (0)

Wednesday, May 04, 2022

"Damned if you do, damned if you don't: How formerly incarcerated men navigate the labor market with prison credentials"

The title of this post is the title of this recent article published in Criminology authored by Sadé L. Lindsay.  Here is its abstract:

Although employment is central to successful reentry, formerly incarcerated people struggle to find work because of criminal stigma, poor education, and sparse work histories. Prison credentials are proposed as one solution to alleviate these challenges by signaling criminal desistance and employability.  Evidence regarding their efficacy, however, is inconsistent.  In this article, I develop a novel explanation — the prison credential dilemma — highlighting the numerous and contradictory ways employers may interpret prison credentials as positive and negative signals.

Drawing on 50 qualitative interviews with formerly incarcerated men in Franklin County, Ohio, I examine how the prison credential dilemma and the uncertainty it produces shape their job search strategies and pathways to employment.  I find that participants concealed or obscured institutional affiliations of prison credentials on job applications to signal employability rather than their criminal records.  In job interviews, however, prison credentials were used to divert conversations away from their criminal record toward skills and criminal desistance via the use of redemptive narratives.  Participants also attempted to acquire credentials outside of prison and/or pursued temporary, precarious jobs, aspiring for such physically strenuous and poorly paid work to materialize into stable employment.  This study has implications for prison programming as well as policies and practices aiming to improve reentry outcomes.

May 4, 2022 in Prisons and prisoners, Reentry and community supervision | Permalink | Comments (0)

Sunday, April 24, 2022

"The consequences of Medicaid expansion under the Affordable Care Act for police arrests"

The title of this post is the title of this notable empirical paper that was published earlier this year but came to my attention this weekend.  Here is its abstract:

Background & methods

National protests in the summer of 2020 drew attention to the significant presence of police in marginalized communities.  Recent social movements have called for substantial police reforms, including “defunding the police,” a phrase originating from a larger, historical abolition movement advocating that public investments be redirected away from the criminal justice system and into social services and health care.  Although research has demonstrated the expansive role of police to respond a broad range of social problems and health emergencies, existing research has yet to fully explore the capacity for health insurance policy to influence rates of arrest in the population.  To fill this gap, we examine the potential effect of Medicaid expansion under the Affordable Care Act (ACA) on arrests in 3,035 U.S. counties.  We compare county-level arrests using FBI Uniform Crime Reporting (UCR) Program Data before and after Medicaid expansion in 2014–2016, relative to counties in non-expansion states. We use difference-in-differences (DID) models to estimate the change in arrests following Medicaid expansion for overall arrests, and violent, drug, and low-level arrests.

Results

Police arrests significantly declined following the expansion of Medicaid under the ACA. Medicaid expansion produced a 20–32% negative difference in overall arrests rates in the first three years.  We observe the largest negative differences for drug arrests: we find a 25–41% negative difference in drug arrests in the three years following Medicaid expansion, compared to non-expansion counties.  We observe a 19–29% negative difference in arrests for violence in the three years after Medicaid expansion, and a decrease in low-level arrests between 24–28% in expansion counties compared to non-expansion counties. Our main results for drug arrests are robust to multiple sensitivity analyses, including a state-level model.

Conclusions

Evidence in this paper suggests that expanded Medicaid insurance reduced police arrests, particularly drug-related arrests.  Combined with research showing the harmful health consequences of chronic policing in disadvantaged communities, greater insurance coverage creates new avenues for individuals to seek care, receive treatment, and avoid criminalization.  As police reform is high on the agenda at the local, state, and federal level, our paper supports the perspective that broad health policy reforms can meaningfully reduce contact with the criminal justice system under historic conditions of mass criminalization.

April 24, 2022 in Drug Offense Sentencing, Reentry and community supervision | Permalink | Comments (0)

Monday, April 18, 2022

"A Welfare Analysis of Medicaid and Crime"

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

We calculate conservative estimates for the marginal value of public funds (MVPF) associated with providing Medicaid to inmates exiting prison.  Our MVPF estimates, which measure the ratio between the benefits associated with the policy (measured in terms of willingness to pay) and its costs net of fiscal externalities, range between 3.44 and 10.61.  A large proportion of the benefits that we account for are related to the reduced future criminal involvement of exiting inmates who receive Medicaid.  Using a difference-in-differences approach, we find that Medicaid expansions reduce the average number of times a released inmate is reimprisoned within a year by about 11.5%.

We use this estimate along with key values reported elsewhere (e.g., victimization costs, data on victimization and incarceration) to calculate specific benefits from the policy. These include reduced criminal harm due to reductions in reoffenses; direct benefits to former inmates from receiving Medicaid; increased employment; and reduced loss of liberty due to fewer future reimprisonments.  Net-costs consist of the cost of providing Medicaid net of changes in the governmental cost of imprisonment; changes in the tax revenue due to increased employment; and changes in spending on other public assistance programs. We interpret our estimates as being conservative, because we err on the side of under-estimating benefits and over-estimating costs when data on specific items are imprecise or incomplete.

Our findings are largely consistent with others in the sparse literature investigating the crime-related welfare impacts of Medicaid access, and suggest that public health insurance programs can deliver sizeable indirect benefits from reduced crime in addition to their direct health-related benefits.

April 18, 2022 in National and State Crime Data, Reentry and community supervision | Permalink | Comments (0)

Friday, April 01, 2022

A second chance for Prez Biden to follow his proclamation about Second Chance Month with some clemency grants

In this post last year, I highlighted some language from the White House's "Proclamation on Second Chance Month, 2021" while stressing that Prez Biden has one particularly important second chance power, namely his historic constitutional clemency authority.  But, a year later, we are sadly still without a single clemency grant from Prez Biden — we had three from Prez Trump by this point in his term — and yet we do now have another White House second chance proclamation.  Here are some passages (and my added emphasis):

April marks Second Chance Month, when we reaffirm the importance of helping people who were formerly incarcerated reenter society. America is a Nation of second chances, and it is critical that our criminal and juvenile justice systems provide meaningful opportunities for rehabilitation and redemption.  It is also vital that we address both the root causes of crime and the underlying needs of returning citizens using resources devoted to prevention, diversion, reentry, trauma-informed care, culturally-specific services, and social support.  By supporting people who are committed to rectifying their mistakes, redefining themselves, and making meaningful contributions to society, we help reduce recidivism and build safer communities.

Every year, over 640,000 people are released from State and Federal prisons.  More than 70 million Americans have a criminal record that creates significant barriers to employment, economic stability, and successful reentry into society.  Thousands of legal and regulatory restrictions prevent these individuals from accessing employment, housing, voting, education, business licensing, and other basic opportunities.  Because of these barriers, nearly 75 percent of people who were formerly incarcerated are still unemployed a year after being released.

We must rethink the existing criminal justice system and whom we send to prison and for how long; how unaddressed trauma and abuse create pipelines to incarceration; how people are treated while incarcerated; how prepared they are to reenter society once they have served their time; and how the racial inequities that lead to disproportionate numbers of incarcerated people of color and other underserved groups.

My Administration recognizes that making the criminal and juvenile justice systems more equitable, just, and effective requires a holistic approach.  It requires eliminating exceedingly long sentences and mandatory minimums that keep people incarcerated longer than they should be. It requires quality job training and educational opportunities during incarceration. It requires providing formerly incarcerated individuals with opportunities to enter the workforce, reunite with their families, find stable and safe homes, and access health care.  It requires expunging and sealing certain criminal records so that people’s futures are not defined by their past....

NOW, THEREFORE, I, JOSEPH R. BIDEN JR., President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim April 2022 as Second Chance Month.  I call upon all government officials, educators, volunteers, and all the people of the United States to observe the month with appropriate programs, ceremonies, and activities.

I like the all the sentiments in this proclamation, but Prez Biden has to start "walking the walk" instead of just "talking the talk."  The federal sentencing system has many individuals serving "exceedingly long sentences and mandatory minimums that keep people incarcerated longer than they should be."  As one detailed example, this terrific recent research paper authored by Alex Fraga, who serves as a Senior Research Associate at Ohio State's Drug Enforcement and Policy Center, documents the thousands of persons subject to federal life sentences for drug offenses.   Prez Biden can and should, today and tomorrow and every day he is in office, use his clemency pen to begin the process of "eliminating exceedingly long sentences" in the federal system.  To its credit, this proclamation notes that " racial inequities that lead to disproportionate numbers of incarcerated people of color and other underserved groups."  Dr. Fraga's report highlights this reality in one context, as she details at lengthy just how "racial disparity in the imposition of life or de facto life sentences in the federal system for drug offenses is glaring."  Again, Prez Biden can take direct action to start to remedy these problems with some commutation grants.

Turning to the discussion of re-entry, the proclamation rightly call for more "expunging and sealing [of] certain criminal records so that people’s futures are not defined by their past."  However, in the federal criminal justice system, there is currently no statutory mechanism for expunging or sealing of any federal criminal records, and thus only the pardon power can eliminate a federal criminal record creating "significant barriers to employment, economic stability, and successful reentry into society."  Of course, since millions of Americans labor with federal criminal records, it would be unrealistic to expect Prez Biden or any president to conduct mass pardoning.  But it would still be quite important and impactful, while preaching about second chances, to at least do some pardoning of at least a few who obviously deserve this kind of second chance.  And, to be potentially more effective in this context and others, Prez Biden should be urging Congress to enact federal statutory tools for expungement and record sealing comparable to what exists (and is often getting expanded) in every single state across our great nation.  

I could go on and on, but I will close simply by asserting that it feels a bit like an April Fool's joke for the President to "call upon all government officials, educators, volunteers, and all the people of the United States to observe the [Second Chance] month with appropriate programs, ceremonies, and activities" when he himself so far has done so little direct second chance work.  Sigh.

Prior related post from last year:

April 1, 2022 in Clemency and Pardons, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (16)

"Releasing Older Prisoners Convicted of Violent Crimes: The Unger Story"

The title of this post is the title of this new article now available via SSRN and authored by Michael Millemann, Jennifer Chapman and Samuel Feder. Here is its abstract:

This article is a retrospective analysis of the significant Maryland decision, Unger v. State, which resulted in one of the most interesting and important unplanned criminal justice experiments in Maryland and national history.  On May 24, 2012, Maryland’s highest court released a decision that shocked the Maryland legal world and gave older life-sentenced Maryland prisoners their first real hope of release in decades.  In Unger v. State, the Maryland Court of Appeals made retroactive a 1980 decision that had invalidated a historic instruction that Maryland judges had given juries in criminal cases for over 150 years.  In that instruction, judges told the lay jurors that they, not the judge, were the ultimate judges of the law, and what the judge said was advisory only. 

A fair reading of the Unger decision was that all prisoners convicted before 1981 were entitled to new trials.  Subsequent decisions confirmed this reading.  Over six years, 200 of these older prisoners impacted by the Unger decision were released on probation.  This article examines the jury-determines-the-law instruction, the Unger decision, and the implementation of Unger, largely through the releases of older prisoners convicted of violent crimes.  In this article, we identify what we believe is important about the Unger story, not just in Maryland but also nationally, including the impact of race in criminal justice, the ability to release older prisoners with appropriate support, and how the lessons learned from the Unger decision can provide a model for reentry programs.

April 1, 2022 in Offender Characteristics, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (0)

Tuesday, March 29, 2022

Split North Carolina court finds some felon disenfranchisement violates state constitution

As reported in this local article, "North Carolina’s law banning many people with felony records from voting after they get out of prison is unconstitutional, a state court ruled Monday."  Here is more (with a link to the lengthy ruling):

Until now, state law allowed people with felony convictions to vote only once they finish their sentence.  That didn’t only include their prison sentence; it also included probation or parole, which sometimes can last for years after someone is released from prison.

Monday’s ruling, first reported by Carolina Public Press, changes that.  Now — pending a potential appeal of the ruling — people with criminal records can vote once they have rejoined society and are no longer behind bars.  The judges wrote that “if a person otherwise eligible to vote is not in jail or prison for a felony conviction, they may lawfully register and vote in North Carolina."

It wasn’t immediately clear if Republican lawmakers, who have defended the law so far, will appeal again.

The law is unconstitutional for generally violating people’s rights, the judges wrote Monday, but also for being explicitly targeted at Black people. Specifically, they wrote that the law “was enacted with the intent of discriminating against African American people and has a demonstrably disproportionate and discriminatory impact.”...

The News & Observer had previously reported that around 55,000 people might be affected by such a change, after an earlier ruling and subsequent appeal in this same case.  The new standard, that people can vote once they leave prison, is the most common practice nationwide, according to the National Conference of State Legislatures.  Two states, Maine and Vermont, let people vote even while in prison.  But most have at least some restrictions, with varying degrees of severity.

The ruling was 2-1 by the panel of three superior court judges assigned to the case. Judge John Dunlow, a Republican from Granville County, dissented.  The two in the majority were Judge Keith Gregory, a Wake County Democrat, and Judge Lisa Bell of Mecklenburg County, who is unaffiliated.

A small part of the law was already struck down just before the 2020 elections, The News & Observer reported, on the basis that in some cases the requirement still functioned similar to a Jim Crow-era poll tax — since some people remained on probation or parole simply for being unable to pay court fines or other costs.

March 29, 2022 in Collateral consequences, Race, Class, and Gender, Reentry and community supervision | Permalink | Comments (0)

Tuesday, March 15, 2022

Spotlighting the new widening potential of electronic monitoring

This new Los Angeles Times op-ed authored by Kate Weisburd and Alicia Virani and headlined "The monster of incarceration quietly expands through ankle monitors," spotlights why many are concerned that electronic monitoring and other new supervision tool may expanded rather than reduce our nation's carceral footprint.  I recommend the full piece, and here are excerpts (with links from the original):

In Los Angeles County, the number of people ordered to wear electronic ankle monitors as a condition of pretrial release went up 5,250% in the last six years, according to a recent report by the UCLA Criminal Justice Program. The figure rose from just 24 individuals in 2015 to more than 1,200 in 2021.  This type of carceral surveillance is becoming the “new normal” across the U.S....

It’s widely defended as “better than jail,” but being “better than jail” does not make a criminal justice policy sound — much less humane or legal....  It’s deceptive to even compare jail and ankle monitors as though they are the only two options.  There is a third option: freedom.  In 2015 and before, L.A. judges were unlikely to order electronic monitoring as a condition of release before trial. Judges either set bail, released people on their own recognizance or ordered that people be detained in jail until trial.

Now, judges seem to be defaulting to electronic monitoring, perhaps for people who would — or should — otherwise be free. For people who would otherwise be in jail, monitoring may be preferable.  But for people who are monitored instead of being released on their own recognizance, monitoring reflects a dangerous expansion of the carceral state.

This “E-jail” entails a web of invasive rules and surveillance technologies, such as GPS-equipped ankle monitors, that allow law enforcement to tag, track and analyze the precise locations of people who have not been convicted of any crime....  The difference between E-jails and real jails is a matter of degree, not of kind.  A recent report by researchers at George Washington University School of Law details the myriad ways that monitoring undermines autonomy, dignity, privacy, financial security and social relationships when they are needed most.

Like in jail, people on monitors lose their liberty. In L.A., as elsewhere, people on monitors are forbidden from leaving their house without pre-approval from authorities days in advance.  Like in jail, people on monitors have little privacy and must comply with dozens of strict rules governing every aspect of daily life. Failing to charge the monitoring device, changing a work or school schedule without permission or making an unauthorized trip to the grocery store can land someone back in jail for a technical violation. It is hardly surprising that in L.A. County, technical rule violations, not new criminal offenses, led to more than 90% of the terminations and reincarcerations applied to people on electronic monitors.

 

Ankle monitoring also further entrenches the very racial and economic inequities that bail reform sought to address. In 2021, 84% of people on pretrial electronic monitoring in L.A. County were either Black or Latinx.  And in most places, though not in L.A., people on ankle monitors before trial are required to pay for the device.   These fees are on top of other costs, such as electric bills (to charge the monitor), cellphone bills (to communicate with the monitoring agency) and the cost of care and transportation for family members that is required because people on monitors often cannot leave home....

There is, however, some reason for optimism.  After years of community organizing, L.A. County’s Board of Supervisors recently passed a motion to develop an independent pretrial services agency within a new Justice, Care and Opportunities Department that takes over the role that probation plays in pretrial services.  This new agency has the ability and authority to end the county’s needless reliance on electronic monitoring.  We urge officials to focus on innovative solutions that rely on community-based support rather than punitive and harmful surveillance technology.

March 15, 2022 in Criminal Sentences Alternatives, Reentry and community supervision, Technocorrections, Who Sentences | Permalink | Comments (8)

Saturday, March 12, 2022

"Card Carrying Sex Offenders"

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

Although it is commonly believed that Americans have never been required to carry and show upon demand personal identification documents, the belief is incorrect.  Over time, select sub-populations have in fact been subject to such a requirement, including free-born and emancipated African-Americans until after the Civil War.  This article examines the targeting of yet another disfavored sub-population: individuals convicted of sex offenses, who are required to register with government authorities.

Today, roughly a dozen states require that registrants obtain and carry identification cards or driver’s licenses signifying their status.  Often, the branding is very overt, such as a stamp of “SEX OFFENDER” or “SEXUAL PREDATOR” in bight colored lettering.  At other times, it is more subtle, such as use of a “U,” denoting that the individual is a “Sexual Deviant.”  The federal government also brands registrants, requiring that their passports display a “unique identifier” stamped in a “conspicuous location.”  The passports must be shown to airport and customs officials, as well others when traveling abroad. With state laws, disclosure is even more pervasive: not only to police, upon demand, but also to myriad other individuals encountered in daily life, such as bank tellers and store clerks.

To date, the laws have faced only a few judicial challenges, which have condoned government branding in principle, yet at times required use of less graphic signifiers.  The decisions, while notable for their reasoning regarding government-compelled speech, have failed to address other significant constitutional concerns, including the First Amendment right of free association, the Fourth Amendment prohibition of unreasonable searches and seizures, and the Fifth Amendment privilege against compelled self-incrimination.  As important, courts have ignored the troubling implications of allowing governments to force individuals to publicly self-stigmatize and systematically compel, under threat of criminal sanction, that they be complicit in their own surveillance.  The article frames and illuminates these issues for the important coming important debate regarding the authority of government to target not only individuals convicted of criminal offenses, but anyone it thinks worthy of public stigmatization and monitoring, possibly for their lifetimes.

March 12, 2022 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (5)

Saturday, March 05, 2022

New Federal Sentencing Reporter double issue explores "Financial Sanctions in Sentencing and Corrections"

I am very pleased to now be able to spotlight the newest Federal Sentencing Reporter issue, which is actually a special double issue devoted to the topic "Financial Sanctions in Sentencing and Corrections: Critical Issues, Innovations, and Opportunities." This amazing issue has nearly two dozen article authored by more than three dozen leading academics and researchers. 

Professors Jordan Hyatt and Nathan Link deserve worlds of credit for putting this amazing issue together, and their "Editors’ Observations"  which introduces the issue is titled "The Cost of Financial Sanctions in Sentencing and Corrections: Avenues for Research, Policy, and Practice." Here is its abstract:  

Financial and monetary obligations, a class of sanctions that includes fines, restitution, and a range of fees, are increasingly recognized as playing a significant role in the operation of the justice system, the lives of the people against whom they are levied, and their communities.  While some financial sanctions play a role in the tailoring of a punishment to the particular individual and the offenses they have been convicted of, others lack this grounding in ideology and serve a more pragmatic- and potentially revenue-driven-goal.  These observations reflect on the current state of research and policy regarding financial sanctions and seek to identify meaningful gaps in the current knowledge base as a foundation for future inquiry.

I highly recommend the full double issue.

March 5, 2022 in Fines, Restitution and Other Economic Sanctions, Purposes of Punishment and Sentencing, Recommended reading, Reentry and community supervision | Permalink | Comments (0)

Thursday, March 03, 2022

Lots of remarkable new CCRC posts highlighting "The Many Roads From Reentry to Reintegration"

Regular readers should recall me highlighting all the great work being done regularly over at the Collateral Consequences Resource Center, and an array of recent postings at CCRC captures all the incredible content connected to its latest publication of a national report surveying various legal mechanisms for restoring rights titled "The Many Roads to Reintegration."   Today's post links to the main publication and sets the context:

We are pleased to publish the March 2022 revision of our national survey of laws restoring rights and opportunities after arrest or conviction, “The Many Roads from Reentry to Reintegration.” Like the earlier report, this report contains a series of essays on various relief mechanisms operating in the states, including legislative restoration of voting and firearms rights, various types of criminal record relief (expungement and sealing, pardon, judicial certificates), and laws limiting consideration of criminal record in fair employment and occupational licensing.

Drawing on material from CCRC’s flagship resource the Restoration of Rights Project, the report grades each state for the scope and efficacy of its laws in nine different relief categories. Based on these grades, it compiles an overall ranking of the states. As described below, most of the states identified as reform leaders in our 2020 report still rank highly, but several new states have joined them. Half a dozen other states made substantial improvements in their ranking by virtue of progressive legislation enacted in 2020 and 2021, in two cases (D.C. and Virginia) rising from the bottom ten to the top 20.

In addition, over the last couple weeks, CCRC has been highlight parts of this report though these individual postings:

Expungement, Sealing & Set-Aside of Convictions: A National Survey

Fair Chance Employment and Occupational Licensure: A National Survey

Executive Pardon: A National Survey

Judicial Diversion and Deferred Adjudication: A National Survey

March 3, 2022 in Collateral consequences, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Wednesday, February 23, 2022

"Waiting for Relief: A National Survey of Waiting Periods for Record Clearing"

The title of this post is the title of this notable new report by Margaret Love and David Schlussel of the Collateral Consequences Resource Center.  Here is this report's starting portion of its introduction:

Background: This report is the first-ever comprehensive national survey of the period of time a person, who is otherwise eligible to expunge or seal a misdemeanor or felony conviction record, must wait before obtaining this relief. Waiting periods are usually established by statute and can range from 0 to 20 years, a period that typically (though by no means invariably) commences after completion of the court-imposed sentence.  Also typically, during a waiting period the person must be free from certain forms of involvement with the justice system: from a felony conviction, from any conviction, or from any arrest, again depending on state law.  These and other conditions and circumstances may extend (or occasionally shorten) the length of a waiting period in specific cases. 

Contents of the Report: Following this introduction, the report consists of two 50-state Tables, one showing the waiting periods applicable to clearing of misdemeanors, and the other showing the waiting periods applicable to clearing of felonies, with states that have no general record clearing listed at the bottom of each table.  The Tables are followed by maps showing the geographical distribution of waiting periods for each type of conviction.  The maps are followed by an appendix describing in greater detail the laws governing waiting periods in each of the jurisdictions studied.

February 23, 2022 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (1)

Thursday, February 17, 2022

"Criminal Violations"

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

Violations of community supervision are major drivers of incarceration.  Four million people are on probation, parole, or supervised release, and one-third of them will eventually be found in violation, sending 350,000 people to prison each year.  To reduce incarceration rates, criminal-justice reformers have called to lower sentences for non-criminal “technical violations” like missed meetings, skipped curfews, etc.

In this Article, I offer the first comprehensive analysis of “criminal violations,” the other half of cases where people violate their supervision by committing new crimes.  Based on an original empirical study of U.S. Sentencing Commission data and an examination of federal caselaw, I make three novel observations.  First, despite the popular focus on technical violations, criminal violations are the primary drivers of punishment via revocation of supervised release, accounting for two-thirds of the total prison time imposed. Second, while technical violations allow the government to punish non-criminal behavior, criminal violations give the government an additional justification for penalizing criminal conduct and an easier alternative to criminal prosecution.  Third, the immigration crime of illegal reentry is the basis for as many as one-third of all felony violations, revealing that supervised release is not just a program of surveillance and support, but also a tool of immigration enforcement.

After describing these observations, I critique the law by arguing that revocation for criminal violations inflicts unfair double punishment and erodes constitutional rights. Revoking supervised release for criminal violations triggers an exception to the ordinary rules of prosecution, which federal law has generalized into a standard practice of government.  When defendants on supervised release commit new crimes, prosecution without revocation is a better and fairer way to punish them.

February 17, 2022 in Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Thursday, February 10, 2022

US Sentencing Commission releases big new report on "Recidivism of Federal Violent Offenders Released in 2010"

As I keep noting in recent years, it is has been great to see the US Sentencing Commission continuing to produce a lot of useful data reports even as its policy work is necessarily on hiatus due to a lack of confirmed Commissioners.  The latest example released today is this 116-page new report titled "Recidivism of Federal Violent Offenders Released in 2010."  This USSC webpage provides an overview of the report along with a bunch of "Key Findings," some of which are reprinted here:

Overview

This report is the third in a series continuing the Commission’s research of the recidivism of federal offenders.  It provides an overview of the recidivism of the 13,883 federal violent offenders released from incarceration or sentenced to a term of probation in 2010, combining data regularly collected by the Commission with data compiled from criminal history records from the Federal Bureau of Investigation.  This report provides an overview of recidivism for these offenders and information on key offender and offense characteristics related to recidivism.  This report also compares recidivism outcomes for federal violent offenders released in 2010 to non-violent offenders in the study group....

Key Findings

  • This study demonstrated substantially greater recidivism among violent federal offenders compared to non-violent federal offenders.
    • The recidivism rates of violent and non-violent offenders released in 2005 and 2010 remained unchanged despite two intervening major developments in the federal criminal justice system — the Supreme Court’s decision in Booker and increased use of evidence-based practices in federal supervision.
    • This finding is consistent with other Commission reports demonstrating higher recidivism among violent offenders...
  • Violent offenders recidivated at a higher rate than non-violent offenders.  Over an eight-year follow-up period, nearly two-thirds (63.8%) of violent offenders released in 2010 were rearrested, compared to more than one-third (38.4%) of non-violent offenders.
  • Violent offenders recidivated more quickly than non-violent offenders.  The median time to rearrest was 16 months for violent offenders and 22 months for non-violent offenders.
  • Among offenders who were rearrested, violent offenders were rearrested for a violent offense at a higher rate than non-violent offenders, 38.9 percent compared to 22.0 percent.
    • Assault was the most common type of rearrest for both violent and non-violent offenders, but a larger proportion of violent offenders (24.9%) than non-violent offenders (15.4%) were rearrested for assault.
  • Age at release is strongly correlated with recidivism for both violent and non-violent offenders. Rearrest rates decrease steadily with each age group for both groups of offenders.  However, violent offenders had higher rearrest rates than non-violent offenders in each age group.  Among offenders aged 60 and older, the oldest group of offenders studied, 25.1 percent of violent offenders were rearrested compared to 11.5 percent of non-violent offenders.
  • Criminal History Category (CHC) is strongly correlated with recidivism for both violent and non-violent offenders. Rearrest rates increase steadily with each CHC for both groups of offenders. However, violent offenders had higher rearrest rates than non-violent offenders in every CHC. Analyzed separately, violent instant offenders (59.9%) and violent prior offenders (64.8%) were rearrested at a higher rate than non-violent offenders (38.4%)....
  • The current recidivism findings for violent and non-violent offenders released in 2010 replicate the Commission’s findings for offenders released in 2005. Nearly two-thirds (63.8%) of violent offenders released in 2010 were rearrested, the same rate for violent offenders released in 2005 (63.8%). More than one-third (38.4%) of non-violent offenders released in 2010 were rearrested, a comparable rate to non-violent offenders released in 2005 (39.8%).

February 10, 2022 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Offense Characteristics, Reentry and community supervision | Permalink | Comments (4)

Wednesday, February 09, 2022

"How 4 States Cut Their Criminal Justice Budgets Without Sacrificing Safety"

The title of this post is the title of this notable new article from the  Winter 2022  edition of State Legislatures magazine produced by the National Conference of State Legislatures.   I recommend this piece in full, and here is how it begins and a few highlights:

About 5% of states’ general fund budgets go to criminal justice — just over $45 billion in fiscal year 2019 — so many lawmakers are determined to make every dollar count.  But that’s not as easy as it might sound.

“The challenge for legislators is to reduce the use of high-cost, low-return policies and shift the savings into programs that have been shown to reduce crime,” says Jake Horowitz, director of The Pew Charitable Trusts’ Public Safety Performance Project.

Lawmakers have a variety of policy options at their disposal, but what actually works? Programs in Louisiana, Michigan, Oregon and Missouri provide some answers.

Louisiana: Reducing Prison Admissions...

Michigan: Shortening Jail Stays...

Oregon: Shoring Up Short-Term Transitional Leave...

Missouri: Reducing Revocations of Community Supervision...

“When people have access to high quality behavioral health services, interactions with law enforcement go down and, in the long term, we see reductions in the number of people in the criminal justice system,” says Alison Lawrence, associate director of NCSL’s Criminal Justice Program.

Corrections research departments are another valuable resource.  Lawmakers looking for effective ways to reduce their criminal justice budgets are finding that public safety and researched-backed corrections policy go hand in hand.  Cutting a research department, Horowitz says, “You might save a fully loaded salary, but then you’re flying blind, and you don’t know what is driving your costs.”

February 9, 2022 in Reentry and community supervision, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (0)

Monday, February 07, 2022

Celebrating "real" recidivism is essentially nil, and even technical violations stunningly low, for CARES home confinement cohort

Data from the US Sentencing Commission indicates that roughly 1 in 4 persons who serve time in federal prison gets rearrested within the first two years after release (see Table 2 in this 2016 USSC report), though some rearrests are for a violation of supervision conditions rather than a new crime.  Though I dislike when recidivism is broadly defined to included just "technical" violations, these USSC data provide useful and needed context for this Washington Times article headlined "320 federal inmates reoffended while on pandemic-related home confinement."  Here are excerpts (with emphasis added):

More than 300 federal inmates who were transferred to home confinement as a pandemic mitigation strategy reoffended and were sent back to prison, a top federal official said Thursday. Bureau of Prisons Director Michael Carvajal told the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security that substance abuse was the “most common” offense that landed inmates back behind bars.

“About 160 of those 320 were for abuse of alcohol or drugs,” Mr. Carvajal said. “Some of them were escapes – they weren’t where they were supposed to be – most of them were violations of that nature. Some was misconduct, eight of those were new crimes committed, the rest of those were technical violations.”

A bureau spokesperson told The Washington Times that six of the eight new crimes were drug-related, one was for escape with prosecution and one was for smuggling non-citizens....

During Thursday’s hearing, he said the 320 reoffending inmates are among more than 37,000 who were transferred to home confinement since Congress passed the Coronavirus Aid, Relief, and Economic Security Act (CARES) in March 2020 to address threats posed by the pandemic.

The CARES Act allows the bureau to transfer certain low-level inmates convicted of nonviolent crimes to home confinement if they meet the COVID-19 risk factors identified by the U.S. Centers for Disease Control and Prevention. While some transfers have been put back in prison, others have completed their sentences and 5,485 inmates are still in home confinement.

In other words, it seems that not one single violent crime has been committed by more than 37,000 persons released early to home confinement under the CARES Act authority.  This is an amazing reality to be robustly celebrated, in part because it reveals that our federal system can effectively identify low-risk offenders who can be released early at essentially no risk to public safety.  

This great new Inquest piece by Jessica Morton & Samara Spence, titled "Home Rule: In weighing the future of thousands placed on home confinement during the pandemic, the government should prioritize where they are now: in their communities," places these data in another bit of telling context:

BOP’s own numbers show that people placed on home confinement pursuant to the CARES Act do not need to be returned to prison to prevent them from committing crimes. According to BOP data, only 9 of the 4,879 people placed on home confinement under the CARES Act — that is, less than two-tenths of a percent — have been reincarcerated for new criminal conduct.  By way of comparison, more than 100 BOP employees have been arrested, convicted of, or sentenced for crimes since the beginning of 2019. Given that BOP has 36,739 employees, BOP employees have a 1.5 times higher rate of alleged criminal conduct than the people the agency supervises on CARES Act home confinement, over a roughly similar period.

This Inquest piece should be read in full because it has a number of additional great points beyond the remarkable reality that BOP employees are apparently more of a public safety threat than the CARES home confinement cohort.  But the broader point is that federal experience over the last two years shows that is is possible to decarcerate a certain prison population without posing any real threats to public safety; indeed, done the right way and at the right time it may be possible to have more freedom and less crime.  That is in part the premise driving various elements of the FIRST STEP Act, and the CARES home confinement cohort has, in essense, demonstrated "proof of concept."

Of course, home confinement release with constant risk of reconfinement during a pandemic is not "normal" in any respect and so I do not think it fair to try to extrapolate too far from these encouraging recidivism data.  Nevertheless, whether a fan or a foe of modern criminal justice reform efforts, the impressively good behavior of the CARES home confinement cohort should be something that everyone can celebrate.

February 7, 2022 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (7)

Tuesday, February 01, 2022

Consumer Financial Protection Bureau reports on "Criminal Justice Financial Ecosystem"

This official press release, fully titled "CFPB Report Shows Criminal Justice Financial Ecosystem Exploits Families at Every Stage: Report Finds Products and Services Rife with Burdensome Fees and Lack of Choice," summarizes a notable new publication from the government agency tasked with safeguarding consumer financial products.  Here are excerpts from the press release, which includes a link to the CFPB's new report:

The Consumer Financial Protection Bureau (CFPB) today published a review of the financial issues facing people and families who come in contact with the criminal justice system. The report, “Justice-Involved Individuals and the Consumer Financial Marketplace,”  describes an ecosystem rife with burdensome fees and lack of choice, and where families are increasingly being forced to shoulder the costs. It walks through the financial challenges families encounter at every stage of the criminal justice process, and the ways in which providers — often for-profit private companies — are leveraging a lack of consumer choice and their own market dominance to impose hefty fees at families’ expense.

“Many incarcerated individuals and their families pay exorbitant fees for basic financial services,” said CFPB Director Rohit Chopra. “Today’s report describes how private companies undermine the ability for individuals to successfully transition from incarceration.”

Contact with the criminal justice system is extremely common in the United States. In 2019, 2.1 million adults in America were in jail or prison, another 4.4 million were under community supervision (such as probation), and 1 in 3 adults — or 77 million Americans — had a criminal record.  Those figures do not reflect the family members and friends who often provide financial support to people who have been arrested, incarcerated, or released from jail or prison, and who are also affected by shoddy financial products and services entwined in the criminal justice system. The burdens of the criminal justice system — and its financial impacts — fall most heavily on people of color, and women and people with lower incomes of all races and ethnicities.  Surveys have repeatedly found women, and specifically Black women, disproportionately shoulder the costs of staying in touch with loved ones in prison and paying court-related debt for family members, sometimes spending up to a third of their income on such costs and even forgoing basic necessities for themselves.

Today’s report examines the financial burdens that can occur from arrest to incarceration to reentry.  It shows that as soon as families come into contact with the criminal justice system, they are confronted with numerous financial challenges, and that for-profit companies are embedded throughout.  Specifically, the report raises issues about:

  • Burdensome fees: Many local, state, and federal governments impose criminal justice debt on the people who interact with it in the form of fines, fees, and restitution.  The consequences of failing to pay fines and fees can be severe, forcing people to choose between making payments they may struggle to afford and risking arrest, prosecution, detention, or reincarceration.  States are also increasingly using third-party debt collectors to collect criminal justice debt.  These debt collectors can tack on additional fines and fees that, if not paid, can result in incarceration.
  • Lack of consumer choice: For incarcerated people and their families, the choice of financial service providers is limited throughout the criminal justice system. In a normal functioning market, products compete on price and quality, but all too often, government contracts in the criminal justice system mean just one choice for consumers....
  • Shifting financial burdens: Increasingly, governments are shifting the cost of incarceration to people who are incarcerated and their families, forcing individuals to pay for charges related to court operations, a court-appointed public defender, drug testing, prison library use, and probation supervision. People are also charged “pay-to-stay” fees for expenses related to their custody and care, like room and board, or medical copayments. When services are outsourced to private companies, the prices set by those companies are often wildly inflated over typical market costs. 

February 1, 2022 in Fines, Restitution and Other Economic Sanctions, Race, Class, and Gender, Reentry and community supervision | Permalink | Comments (0)

Monday, January 24, 2022

CCRC releases "From Reentry to Reintegration: Criminal Record Reforms in 2021"

2022_CCRC_Annual-Report_Cover-768x994As detailed at this post over at the website of the Collateral Consequences Resource Center, "each year since 2017, CCRC has issued a report on legislation enacted in the past year that is aimed at reducing the barriers faced by people with a criminal record in the workplace, at the ballot box, and in many other areas of daily life."  True to form, CCRC has now released this 55-page report titled  "From Reentry to Reintegration: Criminal Record Reforms in 2021."  The CCRC post about the report provide this helpful review of the full document (emphasis and links from the original):

The title of this post introduces our annual report on new laws enacted during the past year, and emphasizes the continuum from reentry (for those who go to jail or prison) to the full restoration of rights and status represented by reintegrationRecent research indicates that most people with a conviction never have a second one, and that the likelihood of another conviction declines rapidly as more time passes. The goal of full reintegration is thus both an economic and moral imperative.

In the past year the bipartisan commitment to a reintegration agenda has seemed more than ever grounded in economic imperatives, as pandemic dislocations have brought home the need to support, train, and recruit workers who are essential to rebuilding the businesses that are the lifeblood of the economy.  If there is any one thing that will end unwarranted discrimination against people with a criminal history, it is a recognition that it does not pay.

Our 2021 report highlights key developments in reintegration reforms from the past year. It documents that 40 states, the District of Columbia, and the federal government enacted 152 legislative bills and took a number of additional executive actions to restore rights and opportunities to people with an arrest or conviction history. As in past years, a majority of these new laws involved individual record clearing: All told, an astonishing 36 states enacted 93 separate laws that revise, supplement or limit public access to individual criminal records to reduce or eliminate barriers to opportunity. Most of these laws established or expanded laws authorizing expungement, sealing, or set-aside of convictions or arrest records.  Several states enacted judicial record clearing laws for the very first time, and a number of states authorized “clean slate” automatic clearing.  Executive pardoning was revived in several states where it had been dormant for years.

In addition, many of the new laws enacted general provisions limiting considering of criminal record in economic settings: 17 states enacted 26 new laws regulating employment and occupational licensing, and more than a dozen other states enacted laws facilitating access to housing, education, driver’s licenses, and public benefits.

Finally, civil rights restoration continued to make progress: Four states took steps to restore voting rights upon release from prison, bringing the total in that category to 21 (with another two states and D.C. not disenfranchising at all). Three other states and the federal government took steps to expand awareness of voting eligibility by those in jail or prison or after release, and four states acted to restore eligibility for jury service and public office....

From Reentry to Reintegration, Criminal Record Reforms in 2021 is available here.  It includes our third annual legislative Report Card recognizing the most (and least) productive legislatures in 2021.  The body of the report provides topical discussions of last year’s reform measures, followed by an appendix documenting and summarizing the new laws by jurisdiction. More detailed analysis of each state’s law is available in the CCRC Restoration of Rights Project.

January 24, 2022 in Collateral consequences, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Thursday, January 20, 2022

Due surely to implementation of FIRST STEP earned-time credits, federal prison population drops by nearly 4,000 in one week

As noted in this prior post from last Thursday, the Department of Justice last week officially announced its new rule for "implementing the Time Credits program required by the First Step Act" and began awarding retroactive credits to those who were eligible and had already done the work to earn credits.  In my post, I commented that, with the retroactive application of these credits, it would be interesting to see if the federal prison population (which as of Jan 13 BOP reported at 157,596 "Total Federal Inmates") would start to decline.  

A week later, on the first day that BOP updates here its reports of "Total Federal Inmates," there is a dramatic change in the total federal prison population.  Specifically, this morning BOP reports 153,855 "Total Federal Inmates," a decline of 3,741 persons now federal inmates.  This roughly 2.5% drop in the federal inmate population in one week is surely the result of the implementation of FIRST STEP Act earned-time credits, and it will now be interested to see if there are continued drops in the weeks ahead.  (I suspect there will be as implementation must take more than just a week, though I will be very surprised if there are subsequent drops as large as this one.)

Among the notable parts of this story is that it represents a bi-partisan, multi-Congress, multi-administration achievement many years in the making.  Of course, the formal law making this possible was the FIRST STEP Act which was enacted with overwhelming bipartisan support in Congress in 2018 and which President Trump signed after he helped get to the bill to the finish line.  But, well before that bill was passed, congressional leaders and the Justice Department during the Obama years had started drafting and building consensus around the prison reform elements of the Sentencing Reform and Corrections Act of 2015 (first discussed here in October 2015).  And now, of course, it is the Justice Department of the Biden Administration that finalized and now implements this important earned-time credits program required by the FIRST STEP Act.   

Prior recent related posts:

January 20, 2022 in FIRST STEP Act and its implementation, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, Who Sentences | Permalink | Comments (6)

Sunday, January 16, 2022

Rounding up some more notable recent criminal justice reads at the start the new year

Though the new year is now just two week old, I have seen more than two weeks worth of interesting reads that I have not had a chance to blog about.   I did a round up last Sunday here, but here are a bunch more pieces worth checking out:

From the Christian Science Monitor, "A step toward better justice: Prying open the ‘black box’ of plea deals"

From the Collateral Consequences Resource Center, "A radical new approach to measuring recidivism risk"

From Governing, "Prison Population Drops as States Revamp Admission Policies: State prisons quickly adjusted policies and procedures when the coronavirus pandemic hit to ensure the health and safety of the incarcerated individuals and staff. If these pandemic changes become permanent, states could save $2.7 billion annually."

From The Hill, "Colorado trucker's case provides pathways to revive pardon power"

From the Los Angeles Times, "California was supposed to clear cannabis convictions. Tens of thousands are still languishing"

From The Marshall Project, "People in the Scandal-Plagued Federal Prison System Reveal What They Need in a New Director: 'This is kind of like AA: To move forward, first you have to admit there’s a problem'."

From NBC News, "The Federal Bureau of Prisons is getting a new leader — and another shot at reforms: A year after taking office, President Joe Biden has disappointed many prisoners and guards who were hoping for big changes. Now he has a chance to do more."

From the Prison Policy Initiative, "New data: The changes in prisons, jails, probation, and parole in the first year of the pandemic: Newly released data from 2020 show the impact of early-pandemic correctional policy choices and what kind of change is possible under pressure.  But the data also show how inadequate, uneven, and unsustained policy changes have been: most have already been reversed."

From the UCLA Law COVID Behind Bars Data Project, "New Report Shows Prison Releases Decreased During The Pandemic, Despite A Drop In Incarceration"

From Washington Monthly, "Critical Race Query: If America is irredeemable, why are racial disparities in the criminal justice system plummeting?"

January 16, 2022 in Prisons and prisoners, Recommended reading, Reentry and community supervision, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Thursday, January 13, 2022

Thousands of federal prisoners finally to get FIRST STEP Act credits as DOJ implements earned time rules

As reported in this new AP article, headlined "Thousands of federal inmates to be released under 2018 law," this weeks brings some big FIRST STEP Act implementation news, just over three years since President Trump signed the landmark sentencing reform legislation.  Here are the basics:

The Justice Department will begin transferring thousands of inmates out of federal prisons this week as part of a sweeping criminal justice overhaul signed by President Donald Trump more than three years ago.

The department, in a rule being published Thursday in the Federal Register, is spelling out how “time credits” for prisoners will work. The bipartisan law is intended to encourage inmates to participate in programs aimed at reducing recidivism, which could let them out of prison earlier....

While the transfers are expected to begin this week, it isn’t clear how many inmates will be released. The department would only say that “thousands” of inmates are being affected.

Under the law signed in December 2018, inmates are eligible to earn time credits — 10 days to 15 days of credit for every 30 days they participate in prison programs to reduce recidivism. The programs range from anger management and drug treatment to educational, work and social skills classes.

The announcement of a finalized rule being published comes about two months after the department’s inspector general sounded an alarm that the Bureau of Prisons had not applied the earned time credits to about 60,000 federal inmates who had completed the programs. It also comes a week after an announcement that the director of the prison agency, Michael Carvajal, will resign from his position in the face of mounting criticism over his leadership.

The Biden administration has faced increased pressure from both Democratic and Republican lawmakers to do more to put in place additional aspects of the First Step Act, and the bureau has been accused of dragging its feet....

The inmates being released will be sent to supervised release programs, released to home confinement or transferred into the bureau’s residential re-entry centers, commonly known as halfway houses. The law allows inmates to earn time credits back to 2018, when the First Step Act was enacted.

The Justice Department says implementation of the finalized rule will begin this week with inmates whose time credits exceed the days remaining on their sentence, are less than a year from release and have a term of supervised release. Transfers are underway. More are expected in the weeks ahead as officials apply the time credits to inmates’ records.

The rule also changes the bureau’s definition of a “day” of credit. A proposed version in January 2020 said inmates would need to participate for eight hours in certain academic programs or prison jobs to qualify for one day’s worth of credit. But the final version changes the timetable and says the prior standard “was inconsistent with the goals” of the law. Inmates will earn 10 days for every 30 days they participate in programs. Inmates who can remain in lower risk categories will be eligible for an additional five days of credit in each 30-day period.

Advocates say the finalized definition of a “day” will make it easier for a wide array of prison programs to count toward time credits and will mean more people will be eligible for release earlier.

This new Justice Department press release, titled "Justice Department Announces New Rule Implementing Federal Time Credits Program Established by the First Step Act," discusses these developments this way:

Today, the Department of Justice announced that a new rule has been submitted to the Federal Register implementing the Time Credits program required by the First Step Act for persons incarcerated in federal facilities who committed nonviolent offenses.  As part of the implementation process, the Federal Bureau of Prisons (BOP) has begun transferring eligible inmates out of BOP facilities and into either a supervised release program or into Residential Reentry Centers (RRCs) or home confinement (HC).

“The First Step Act, a critical piece of bipartisan legislation, promised a path to an early return home for eligible incarcerated people who invest their time and energy in programs that reduce recidivism,” said Attorney General Merrick B. Garland.  “Today, the Department of Justice is doing its part to honor this promise, and is pleased to implement this important program.”

The First Step Act of 2018 provides eligible inmates the opportunity to earn 10 to 15 days of time credits for every 30 days of successful participation in Evidence Based Recidivism Reduction Programs and Productive Activities.  The earned credits can be applied toward earlier placement in pre-release custody, such as RRCs and HC.  In addition, at the BOP Director’s discretion, up to 12 months of credit can be applied toward Supervised Release.  Inmates are eligible to earn Time Credits retroactively back to Dec. 21, 2018, the date the First Step Act was enacted, subject to BOP’s determination of eligibility.

Implementation will occur on a rolling basis, beginning with immediate releases for inmates whose Time Credits earned exceed their days remaining to serve, are less than 12 months from release, and have a Supervised Release term.  Some of these transfers have already begun, and many more will take place in the weeks and months ahead as BOP calculates and applies time credits for eligible incarcerated individuals.

The final rule will be published by the Federal Register in the coming weeks and will take immediate effect.  The rule, as it was submitted to the Federal Register, can be viewed here: https://www.bop.gov/inmates/fsa/docs/bop_fsa_rule.pdf

This seems like a very big deal, especially with the retroactive application of credits and the new "day" rule for earning credit, and I will be very interested to see if the federal prison population (which today BOP reports at 157,596 "Total Federal Inmates") starts a move back down after having grown by around 6,000 persons during the first year of the Biden Administration.

January 13, 2022 in FIRST STEP Act and its implementation, Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (8)

Wednesday, January 12, 2022

US Sentencing Commission issues new report on "Recidivism of Federal Drug Trafficking Offenders Released in 2010"

Cover_recidivism-drugs-2021The US Sentencing Commission today published some more findings from its big eight-year recidivism study of federal offenders released from prison in 2010. This new 144-page report is titled "Recidivism of Federal Drug Trafficking Offenders Released in 2010," and this USSC webpage provides this overview with key findings:

Overview

This report is the third in a series continuing the Commission’s research of the recidivism of federal offenders.  It provides an overview of the recidivism of the 13,783 federal drug trafficking offenders released from incarceration or sentenced to a term of probation in 2010, combining data regularly collected by the Commission with data compiled from criminal history records from the Federal Bureau of Investigation.  This report provides an overview of recidivism for these offenders and information on key offender and offense characteristics related to recidivism. This report also compares recidivism outcomes for federal drug trafficking offenders released in 2010 to drug trafficking offenders released in 2005.

The final study group of 13,783 drug trafficking offenders satisfied the following criteria:

  • United States citizens
  • Re-entered the community during 2010 after discharging their sentence of incarceration or by commencing a term of probation in 2010
  • Not reported dead, escaped, or detained
  • Have valid FBI numbers that could be located in criminal history repositories (in at least one state, the District of Columbia, or federal records)

Key Findings

  • The rearrest rate for drug trafficking offenders released in 2010 was similar to the rate for those released in 2005 despite intervening changes in the criminal justice system: the Supreme Court’s decision in Booker, adjustments to sentencing of crack cocaine offenses, and increased use of evidence-based practices in federal supervision.
  • The rearrest rate for a new offense or an alleged violation of supervision conditions was similar for drug trafficking offenders (47.9%) as compared to all other offenders released in 2010 (50.4%).
  • Of those drug trafficking offenders released in 2010 who were rearrested, the median time from re-entry to the first rearrest was 23 months. By comparison, the median time from re-entry to the first rearrest for all other offenders was 16 months.
  • Crack cocaine trafficking offenders were rearrested at the highest rate (57.8%) of any drug type, while powder cocaine trafficking offenders were rearrested at the lowest rate (41.8%). Rearrest rates for other primary drug types ranged from 42.7 percent to 46.7 percent.
  • Approximately one-third (32.0%) of drug trafficking offenders who were rearrested had drug-related offenses (either drug trafficking, drug possession, or another drug offense) as their most serious new charge at rearrest. Nearly one-fifth (19.9%) were charged with assault at rearrest.
  • Criminal history was strongly correlated with rearrest. Drug trafficking offenders’ rearrest rates ranged from 29.9 percent for offenders with zero criminal history points to 74.9 percent for offenders with 13 or more criminal history points.
  • Age at release into the community also was strongly correlated with likelihood of rearrest. Drug trafficking offenders released prior to age 21 had the highest rearrest rate of 70.1 percent, while drug trafficking offenders who were 60 years or older at the time of release had the lowest rearrest rate of 16.4 percent.
  • Over an eight-year follow-up period, 47.9 percent of drug trafficking offenders in the 2010 release cohort were rearrested compared to 50.0 percent of drug trafficking offenders in the 2005 release cohort.

January 12, 2022 in Drug Offense Sentencing, Offender Characteristics, Reentry and community supervision | Permalink | Comments (1)

Tuesday, December 21, 2021

BJS releases "Employment of Persons Released from Federal Prison in 2010"

The Bureau of Justice Statistics has just released this fascinating new accounting of employment dynamics for over 50,000 persons who were released from federal prison in 2010.  Here is how the report starts to explain its scope:

The Bureau of Justice Statistics (BJS) produced this study to fulfill a congressional mandate in the Fair Chance to Compete for Jobs Act, part of the 2019 Defense Reauthorization Act (P.L. 116-92, Title XI, Subtitle B, Section 1124).  Congress tasked BJS and the U.S. Census Bureau with reporting on post-prison employment of persons released from federal prison. The study population in this report includes 51,500 persons released from the Federal Bureau of Prisons (BOP) whose release records could be linked by the U.S. Census Bureau to employment and wage files from the Longitudinal Employer-Household Dynamics (LEHD) program.

I cannot readily summarize all the findings from this report, but here are a few passages I found notable:

More than two-thirds (67%) of the study population released from federal prison in 2010 obtained formal employment at any point during the 16 quarters following release. However, the total study population’s employment did not exceed 40% in any of the individual 16 quarters after release. The highest percentage of persons in the study population who were employed occurred in the first full quarter after prison release for whites (46%) and American Indians and Alaska Natives (37%), in quarter 2 for blacks (37%) and Hispanics (34%), and in quarter 5 for Asians and Native Hawaiians and Other Pacific Islanders (38%). Males who obtained post-prison employment worked for an average of 9.1 quarters during the 16 quarters following release, while females worked an average of 10.2 quarters....

A third (33%) of persons in the study population were employed 12 quarters prior to their admission to federal prison. This percentage declined in each subsequent quarter, with 18% employed in the last full quarter before admission to prison and 11% employed in the quarter of prison admission....

A higher percentage of persons in the study population who served time in federal prison for drug offenses before their 2010 release were employed during the 16 quarters after release (72%) compared to other offense types, while persons who served time for public order offenses had the lowest (60%).  Seventy percent of persons in the study population who returned to federal prison during the time from their 2010 release to yearend 2014 found employment in at least 1 quarter of the follow-up period, compared to 66% of persons who were not reimprisoned by the BOP....

Persons in the study population worked in a wide range of jobs after prison, but five industrial sectors employed the majority of persons released in 2010: administrative support and waste management and remediation services; accommodation and food services; construction; manufacturing; and retail trade (table 7). Together, these sectors employed 72% of persons in the study population who obtained work in the first quarter after their 2010 prison release, declining to 66% in quarter 16. During each of the 16 quarters after release, the top nine employment sectors accounted for more than 85% of the jobs worked by the employed persons in the study population.

Because I do not see this report including any data about education levels or any in-prison vocational training efforts, I am not sure quite what to make of all these particulars. But the particulars are still quite interesting.

December 21, 2021 in Offender Characteristics, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (0)

Thursday, December 16, 2021

New BJS reports on "Probation and Parole in the United States, 2020" and "Profile of Prison Inmates, 2016"

Earlier this week, the Bureau of Justice Statistics released its latest detailed accounting of US prison populations (discussed here), and today brought two more notable data reports from BJS.  Here is a brief summary (with links) via the email I received this morning from the office of Justice Programs:

The Department of Justice’s Bureau of Justice Statistics today released Probation and Parole in the United States, 2020.  The report is the 29th in a series that began in 1981. It includes characteristics of the population such as sex, race or ethnicity and most serious offense of adult U.S. residents under correctional supervision in the community. The report details how people move onto and off community supervision, such as completing their term of supervision, being incarcerated, absconding or other unsatisfactory outcomes while in the community.  Findings are based on data from BJS’s 2020 Annual Probation Survey and Annual Parole Survey.

BJS also released Profile of Prison Inmates, 2016.  This report describes the characteristics of state and federal prisoners in 2016, including demographics, education and marital status.  Findings are based on data from BJS’s 2016 Survey of Prison Inmates (SPI), which is conducted periodically and consists of personal interviews with prisoners.  For the first time, the 2016 SPI measured sexual orientation and gender identity, and those estimates are included in this report.  Statistics on prisoners’ offenses, time served, prior criminal history and any housing status prior to imprisonment, including homelessness, are also presented.  The report concludes with a summary of the family background of prisoners while they were growing up and any family members who have ever been incarcerated.

I am hoping in the weeks ahead to find some time to really mine some interesting factoids from all this notable new BJS data. For now I will be content to flag just a few "highlights" from the start of these two new document:

December 16, 2021 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (0)

Tuesday, December 14, 2021

"The Effectiveness of Certificates of Relief: A Correspondence Audit of Hiring Outcomes"

The title of this post is the title of this new article authored by Peter Leasure and Robert J. Kaminski just published in the Journal of Empirical Legal Studies.  Here is its abstract:

Although there are several collateral consequence relief mechanisms that could theoretically be used to improve employment outcomes for those with criminal history, many of these mechanisms are available only for first-time/low-level individuals or possess other requirements that limit their accessibility.  Recognizing these facts, some jurisdictions have created certificates of relief, which are generally more accessible than other relief mechanisms.  The goal of the current study was to test whether one state's (Ohio) certificate could improve hiring outcomes for men with criminal histories comprised of felony theft, felony drug possession, and misdemeanor drug paraphernalia convictions.  This goal was achieved with the use of two field experiments.  Results showed that certificate holders with criminal history received significantly fewer callbacks than those with no criminal record and fared no better than those with an identical criminal record and no certificate.  Further, African-American applicants received significantly fewer callbacks than white applicants in all criminal record categories.

December 14, 2021 in Collateral consequences, Reentry and community supervision | Permalink | Comments (0)

Saturday, December 11, 2021

"Protective State Policies and the Employment of Fathers with Criminal Records"

I just recently saw this recent article, which shares the title of this post, authored by Allison Dwyer Emory and published online via the journal Social Problems.  Here is its abstract:

A criminal record can be a serious impediment to securing stable employment, with negative implications for the economic stability of individuals and their families. State policies intended to address this issue have had mixed results, however.  Using panel data from the Fragile Families study merged with longitudinal data on state-level policies, this study investigates the association between criminal record based employment discrimination policies and the employment of men both with and without criminal records.  These state policies broadly regulate what kinds of records can be legally used for hiring and licensing decisions, but have received little attention in prior research.  Findings indicate that men with criminal records were less likely to be working if they lived in states with more policies in place to regulate the legal use of those records.  Consistent with research linking policies regulating access to records to racial discrimination, black men living in protective states reported this employment penalty even if they did not have criminal records themselves.  Thus, these policies, at best, may fail to disrupt entrenched employment disparities and, at worst, may exacerbate racial discrimination.

December 11, 2021 in Collateral consequences, Race, Class, and Gender, Reentry and community supervision | Permalink | Comments (0)

Wednesday, December 08, 2021

"The Effects of College in Prison and Policy Implications"

The title of this post is the title of this notable new piece authored by Matthew G.T. Denney and Robert Tynes newly published in the journal Justice Quarterly. Here is its abstract:

Despite the policy relevance of college-in-prison, the existing research on these programs has important flaws, failing to address selection and self-selection bias.  We address an important policy question: what are the effects of college-in-prison program?  To do this, we provide the largest study published to-date of a single college-in-prison program. 

We analyze the effects of the Bard Prison Initiative (BPI) in New York, a liberal arts program that has offered college courses to incarcerated students since 2001.  By leveraging the BPI admissions process, we employ a design-based approach to infer the causal effect of participation in BPI.  We find a large and significant reduction in recidivism rates.  This reduction is consistent across racial groupings.  Moreover, people with higher levels of participation recidivate at even lower rates.  In light of these findings, we provide policy recommendations that support college-in-prison programs.

December 8, 2021 in National and State Crime Data, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (0)