Thursday, June 13, 2019

White House promotes efforts to provide job opportunities for former prisoners

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, June 11, 2019

Educating everyone about the value of educating prisoners

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

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

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

Friday, June 07, 2019

"Invisible Stripes: The Problem of Youth Criminal Records"

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

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

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

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

Thursday, June 06, 2019

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

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

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

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

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

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

Prior related post:

June 6, 2019 in Detailed sentencing data, National and State Crime Data, Reentry and community supervision, Sex Offender Sentencing, Who Sentences | Permalink | Comments (2)

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

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

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

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

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

• Building up resources in communities of color

• Funding better education systems

• Protecting and asserting the right to vote

• Increasing awareness of mental health issues

• Reforming law enforcement education to foster improved community relations

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

• Rehabilitating and educating people while they are incarcerated

• Making prisons and prosecutions more transparent

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

• Providing more employment opportunities for people getting out of prison

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

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

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

Wednesday, June 05, 2019

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

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

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

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

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

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

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

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

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

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

Prior related posts:

June 5, 2019 in FIRST STEP Act and its implementation, Reentry and community supervision, Who Sentences | Permalink | Comments (1)

Monday, June 03, 2019

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

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

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

The ruling of the Court begins and ends this way:

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

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

The dissent begins this way:

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

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

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

Wednesday, May 22, 2019

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

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

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

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

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

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

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

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

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

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

Sunday, May 19, 2019

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

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

Ten Tips for Policymakers for Parole

Key Points

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

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

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

Ten Tips for Policymakers for Improving Probation

Key Points

• Probation can be an alternative or gateway to incarceration.

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

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

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

Friday, May 10, 2019

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

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

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

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

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

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

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

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

Tuesday, May 07, 2019

Latest issue of ABA Journal focuses on addressing collateral consequences

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

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

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

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

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

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

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

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

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

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

Monday, May 06, 2019

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

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

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

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

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

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

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

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

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

Saturday, April 27, 2019

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sunday, April 07, 2019

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

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

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

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

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

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

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

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

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

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

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

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

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

A few prior related recent posts:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Saturday, April 06, 2019

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday, April 01, 2019

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

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

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

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

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

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

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

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

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

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

Saturday, March 30, 2019

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

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

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

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

Locks

Justice Sotomayor

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

Justice Thomas

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

Likely

Justice Ginsburg

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

Justice Kagan

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

On the Bubble
Justice Gorsuch and Justice Kavanaugh

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

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

Up next, the breakdown of the predicted dissenters.

Prior related posts:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Friday, March 29, 2019

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

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

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

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

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

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

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

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

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

Tuesday, March 26, 2019

Suffolk County DA produces remarkable new prosecutorial polices memo

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

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

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

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

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

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

Prior related post:

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

Friday, March 22, 2019

Philly DA looking to curtail duration of probation and parole

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

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

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

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

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

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

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

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

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

Sunday, March 17, 2019

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, March 12, 2019

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday, March 11, 2019

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, March 06, 2019

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Friday, March 01, 2019

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, February 27, 2019

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

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

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

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

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

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

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

Tuesday, February 26, 2019

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

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

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

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

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

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

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

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

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

Some prior related posts:

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

Monday, February 25, 2019

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

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

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

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

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

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

Some prior related posts:

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

Thursday, February 21, 2019

Making a robust case for "Sending Our Prisoners to College"

Over at The American Conservative, Nila Bala and Emily Mooney have this lengthy new commentary titled "Sending Our Prisoners to College: Just think of it as an up-front investment, one that will pay dividends down the road." I highly recommend the piece in full, and here are excerpts:

At the heart of conservative thinking are the tenets of individual dignity, public safety, family values, and fiscal prudence.  Yet far too often, society fails to apply these principles to the criminal justice system.  As a result, our current correctional system is failing all of us. It is clear that something must change.

Generally speaking, our correctional facilities do too little to prepare prisoners for their lives beyond prison walls.  Not surprisingly, recidivism rates are disturbingly high.  An estimate from the Bureau of Justice Statistics indicates that almost three fifths of those released from prison will be convicted of a new offense within five years of their release....

No one should be shocked by these results; prisons are dehumanizing places that do not produce favorable outcomes for incarcerated individuals, families, or communities. If we want prisoners to treat others with human dignity when they re-enter society, we must practice these principles in our treatment of them....

We have a choice to make: we can let incarcerated individuals sit behind bars — isolated and idle — or we can take steps to provide education to incarcerated individuals who, as a result, will be more employable, stable members of our society when they are released.

The idea of educating incarcerated individuals has been met with strong opposition from those who question why Americans should be taxed so that those behind bars — who have done something wrong — receive a benefit.  This sentiment led to the elimination of Pell Grants for prisoners in 1994.  Pell Grants exist to provide all students with financial need with aid for college.  Without financial support from these grants, the number of postsecondary prison programs plummeted from 772 programs to just 8 within three years.

By the late 2000s, individuals on both sides of the aisle began to recognize that prison systems were not stopping the continuing tide of crime.  A more effective solution was needed to address the growing prison population.  Finally, in summer 2015, the U.S. Department of Education announced the Second Chance Pell Pilot Program as part of the Experimental Sites Initiative.  This program allowed some colleges to apply to pilot the use of Pell Grants to increase access to postsecondary education in correctional facilities, with the federal government evaluating the academic and life outcomes of those who received postsecondary education.

We are now over two years into the experiment.  It is still too early to assess the initiative’s impact on recidivism rates.  However, removing barriers has increased enrollment: from fall 2016 to fall 2017, enrollment at Second Chance Pell experimental sites increased by 236 percent.  As of fall 2017, over 954 postsecondary credentials have been awarded, giving incarcerated individuals a better chance of obtaining employment through career technical certificates as well as two- and four-year degree programs.  Both the Trump administration and many leaders in the Republican Party have expressed interest in the program.

Given these promising signs, policymakers should consider expanding postsecondary education programming to prisoners nationwide.  Such programming brings gains for both prisoners and public safety, rebuilds families, is fiscally prudent, and acknowledges the individual dignity of those in prison....

Education has a transformative effect on incarcerated individuals and how they view themselves.  It affords individuals a glimpse at a new world of opportunities that they may not have been exposed to prior to incarceration.  In the classroom, prisoners are seen as individuals worthy of investment; their teachers and coursework engender a sense that they have something to offer to society.  Postsecondary courses take otherwise dead time and use it to engage prisoners in productive activity....

Practically speaking, postsecondary courses give incarcerated individuals something to do and help corrections personnel create a structured routine for participants.  These factors reduce the chance that prisoners will fill their time with less productive (and potentially criminal) activities.  Ultimately, postsecondary education can make the difficult job of corrections both easier and safer — for staff as well as those behind bars.

The transformative effects of postsecondary education do not stop behind prison walls; they also bring meaningful benefits to public safety.  A recent study found that earning a postsecondary degree while incarcerated may reduce an individual’s chances of re-arrest by 14 percent and their chances of a return to prison due to a new offense by 24 percent.  Though selection bias may come into play (i.e., students who choose to enroll in education programs may have characteristics that also make them less likely to re-offend), research has continued to identify such programming as a cost-effective model for increasing public safety....

Many people, and especially conservatives, have an instinctual bias against paying for prisoners’ education.  Yet the reality is we already pay a high cost — fiscal, social, and personal — because we do not educate most prisoners.  Indeed, the cost of an education is insignificant when compared to the costs our society suffers from criminal activity. Postsecondary education may require an upfront investment, but it’s one that will reduce the fiscal burden of government in the long run.

Our correctional system is in crisis.  Ten thousand individuals are released from prison every week, many of whom are wholly unprepared for the world they will enter. Our public safety, families, and economy are undermined when released individuals resort to crime.  We have tried building more prisons, increasing sentences, and making confinement more punitive.  But time and again, this “tough on crime” approach has not worked.  Instead, it has proven not only a fiscally wasteful policy that threatens public safety and family cohesion, but an affront to basic human dignity.

Supporting prison education does not mean being “soft on crime.”  Rather, it is one of the clearest, cheapest, and most effective methods to get control over crime and make our correctional facilities safer.  It paves the way for new family legacies based on education, productive labor, and prosperity, creating positive generational effects for years to come.

Conservatives should lead the way on repairing our broken criminal justice system.  Study after study has identified the provision of postsecondary education in prisons as a promising approach to preventing crime and to facilitating future economic opportunity.  The Second Chance Pell Pilot Program has created an opportunity to provide much-needed educational programs to incarcerated individuals. And, by expanding access to prison education programs, we can move toward an approach that embraces redemption, compassion, and second chances — and benefits society as a whole.

February 21, 2019 in Prisons and prisoners, Reentry and community supervision | Permalink | Comments (1)

Tuesday, February 19, 2019

A detailed accounting of many steps for everyone to follow-up on the FIRST STEP Act

Mark Holden has this new commentary at The Crime Report headlined "The First Step Act: It’s Only a ‘First Step’."  I recommend the piece in full, and here are excerpts:

Signed into law during the closing days of 2018, the bipartisan First Step Act expands rehabilitative programming, modifies some mandatory minimum laws to provide more proportional sentencing, and provides a second chance to people like [Matthew] Charles who’ve worked hard to transform their lives while in prison.... The law is also acting as a catalyst for states that haven’t yet reformed their criminal justice systems.

But as important as the law is, additional steps are needed to improve our criminal justice system.  To bring about transformative change, policymakers at all levels must act.  The private sector, civic organizations and community leaders must also do their part to ensure that the formerly incarcerated can find work, housing and access the tools they need to succeed after being freed....

Congress should apply three of the law’s sentencing changes retroactively, to help people who received overly harsh sentences under outdated policies and pass other front-end reforms that prioritize prison beds for dangerous criminals while addressing low-level, nonviolent offenses through treatment and other programs that better serve this population.

In addition, Congress should codify the Supreme Court ruling that requires prosecutors share all of the information that they have about the alleged crime with the accused at the outset the case.  Lawmakers can also address our over-incarceration epidemic by clarifying criminal intent standards and working to rein in our bloated federal criminal code and regulatory code, under which virtually anyone can be charged with a crime.

The Trump administration can act on its own to reform the executive clemency process to create second chances for people who wouldn’t necessarily qualify for relief under the First Step Act.

States can parallel many of these federal actions by removing barriers for people with criminal records. More “Clean Slate” laws, like the one enacted in Pennsylvania last year, will create second chances for people by unblocking them from jobs, housing, and education.

States could also increase the transparency of their criminal justice systems through more data collection and enhanced due process protections for citizens.  Across the country individuals are incarcerated awaiting trial without considering other factors like the potential for flight risk, or whether the individual poses a threat to public safety, while others are incarcerated due to excessive fees and fines, and technical violations....

Businesses can help transform lives and enable people to contribute to their communities by hiring qualified candidates with criminal records.  I’m proud to work for Koch Industries, which hires people with criminal records and recently signed the Getting Talent Back to Work pledge with the Society for Human Resource Management to end outdated, non-inclusive hiring practices.

Finally, groups like Hudson Link for Higher Education, Safe Streets & Second Chances and The Last Mile can provide incarcerated people with skills and identify obstacles that prevent them from succeeding after their release....

We believe, as Winston Churchill did, in “an unfaltering faith that there is a treasure, if you can only find it, in the heart of every man.” We all share a moral imperative to help find and unlock that treasure, to unleash the potential in everyone.

If we all do our part, we can bridge the partisan divide and build on the great foundation provided by the First Step Act. It’s time to take the next steps on criminal justice reform, this year and beyond.

February 19, 2019 in FIRST STEP Act and its implementation, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Thursday, February 14, 2019

"The Dark Figure of Sexual Recidivism"

The title of this post is the title of this new paper authored by Nicholas Scurich and Richard John now available via SSRN.  Here is its abstract:

Empirical studies of sexual offender recidivism have proliferated in recent decades. Virtually all of the studies define recidivism as a new legal charge or conviction for a sexual crime, and these studies tend to find recidivism rates on the order of 5-15% after 5 years and 10-25% after 10+ years.  It is uncontroversial that such a definition of recidivism underestimates the true rate of sexual recidivism because most sexual crime is not reported to legal authorities, the so-called “dark figure of crime.”

To estimate the magnitude of the dark figure of sexual recidivism, this paper uses a probabilistic simulation approach in conjunction with a.) victim self-report survey data about the rate of reporting sexual crime to legal authorities, b.) offender self-report data about the number of victims per offender, and c.) different assumptions about the chances of being convicted of a new sexual offense once it is reported.  Under any configuration of assumptions, the dark figure is substantial, and as a consequence, the disparity between recidivism defined as a new legal charge or conviction for a sex crime and recidivism defined as actually committing a new sexual crime is large.  These findings call into question the utility of recidivism studies that rely exclusively on official crime statistics to define sexual recidivism, and highlight the need for additional, long-term studies that use a variety of different measures to assess whether or not sexual recidivism has occurred.

February 14, 2019 in Data on sentencing, National and State Crime Data, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (13)

Tuesday, February 12, 2019

Student SCOTUS preview part two: noticing the parole push in United States v. Haymond

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

As reported in this prior post, I have a great student, Jim McGibbon, who is now in the midst of drafting a series of preview posts on the \Haymond case.  Following up on this introductory post, here is his second post inspired by the briefing in the case:

In 2010, Andre Haymond was convicted of possessing child pornography and sentenced to thirty-eight months of prison and ten years of supervised release.  In 2015, two years into his supervised release, Haymond's probation officers conducted a surprise search of his apartment and seized a password-protected cellphone.  Finding images of child pornography on the phone, the probation officers alleged Haymond violated his terms of supervised release.  The district court found by a preponderance of the evidence that Haymond had violated 18 U.S.C. § 2252 by possessing child pornography.  Based on this finding, the court revoked Haymond's supervised release and sentenced him to a mandatory five years in prison pursuant to § 3583(k) and an additional five years of supervised release.  On appeal, the Tenth Circuit held that § 3583(k) was unconstitutional in part because it unlawfully imposes heightened punishment using a preponderance of the evidence standard based on new conduct which contradicts the requirements of Apprendi and Alleyne.  And though parole was abolished in the federal system 35 years ago, its history and procedures lurk as this case now comes before the Supreme Court.

The Supreme Court in Morrissey v. Brewer stated that "revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocation." Morrisey v. Brewer, 408 U.S. 471, 480 (1972).  Commenting on the nature of revocation, the Supreme Court theorized that "[r]evocation deprives an individual, not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance of special parole restrictions.” Id.  Regarding the right to due process, the Court held that "[w]hether any procedural protections are due depends on the extent to which an individual will be 'condemned to suffer grievous loss.'" Id. at 481.

Morrissey is still good law, as is Gagnon v. Scarpelli, 411 U.S. 778 (1973), which ruled similarly with respect to constitutionally required procedures for revoking probation.  Predictably then, the government briefing in US v. Haymond relies heavily on these cases, as Morrissey is mentioned 21 times and Gagnon is mentioned 14 times in its main brief. Concomitantly, the government’s brief cites to "parole" a whopping 60 times in hopes that the current Court finds that a person on supervised release is afforded only the same procedural protections as a parolee or a probationer as the Burger Court found in Morrissey and Gagnon.  As the government would have it, Morrissey and Gagnon control because Andre Haymond while on supervised release has "only "conditional liberty" and "individuals in respondent’s position are differently situated from those who can claim the full extent of the constitutional protections against a deprivation of their absolute liberty."  Brief of US at 38.  In contrast, Haymond's brief contains only five references to Morrissey.  He argues, unsurprisingly, Morrissey does not apply. 

There are reasons to believe the Court will not automatically find that the procedural protections due a person on supervised release are in lock step with the procedural protection due a person on parole.  Morrissey can be distinguished due to differences between the realities of traditional parole release and parole revocation and the realities of federal supervised release and its revocation.  As Haymond's brief stresses, in this case Congress through section 3583(k) required a new five-year mandatory prison sentence upon a particular finding as the basis for supervised release revocation.  Traditional parole processes included considerable discretion, and "parole revocation penalties could not exceed reimprisonment for the remainder of the original sentence."  Brief for Respondent at 26.  Moreover, continues Haymond, supervised release is not a form of "conditional liberty” because any “defendant who began a term of supervised release completed his term of imprisonment and there was no pending term that he could resume serving (as in the case of parole) or being serving (as in the case of probation)." Brief for Respondent at 27-28.

This case could be decided on whether the discretionary parole system of the past and the mandatory supervised release system of the present are similar enough to apply Morrissey v. Brewer in Haymond's case.  However, if the Court extends Morrissey v. Brewer to be applicable to the revocation of supervised release, then Haymond was not due "the full panoply of rights" and the application of § 3583(k) is probably constitutional — although the Court could still then find that the § 3583(k)'s distinctive mandatory five-year prison sentence is a "grievous loss" for a defendant that justifies greater procedural protections under the Due Process Clause of Fifth Amendment.  Or, if the Court declines to extend Morrissey v. Brewer to the revocation of supervised release, then perhaps the Court will look to the Sixth Amendment to find that jury trial rights are implicated and applicable under the Apprendi and Blakely and Alleyne line of cases.

This case is of interest not only because of its substantive issues, but also because it will present the first major opportunity for new Justices Gorsuch and Kavanaugh to weigh in on Apprendi and its progeny.  Justice Gorsuch replaced an Apprendi progenitor in Justice Scalia, while Justice Kavanaugh replaced an Apprendi objector in Justice Kennedy.  The next post will explore what they and other Justices might have to say in this case.

Prior related posts:

February 12, 2019 in Blakely in the Supreme Court, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Saturday, February 02, 2019

"Education for Liberation: The Politics of Promise and Reform Inside and Beyond America’s Prisons"

Robinson-English-Cover-364x586The title of this post is the title of this timely new book of essays edited by Gerard Robinson and Elizabeth English Smith. Here is the publisher's description of the text:

Almost 650,000 men and women, approximately the size of the city of Memphis, TN, return home from prison every year. Oftentimes with some pocket change and a bus ticket, they reenter society and struggle to find work, housing, a supportive social network.  Economic barriers, the stigma of a felony conviction, and mental health and addiction challenges make reentry a bleak picture, leading some to return to a life of crime. A Department of Justice study of 404,638 inmates in 30 states released in 2005, for example, identified that 68 percent were rearrested within 3 years and 77 percent within 5 years of release.

Education and workforce readiness programs must be central components in better preparing individuals to successfully reenter society — and stay out of prison.  This book compiles chapters written by individuals on the right and the left of the political spectrum, and within and outside the fields of prison education and reentry that address this need for reform.  Chapters feature the voices of prominent national figures pushing for reform, current and former students who have benefitted from an education program while in prison, those teaching or managing educational programs within prison, and researchers, entrepreneurs, and policy influencers.

This page over at AEI provides this additional accounting of the book:

Prisoner rehabilitation through postsecondary education and workforce readiness programming is one of the most contested criminal justice policies today.  At the center of this national debate about crime and punishment are 230-year-old questions about the role prisons should play in a democratic society.  Are our prisons designed for corporal punishment, human improvement, or a combination thereof?  Throughout the twentieth and twenty-first centuries, the United States government has provided conflicting answers to the American public.  After a number of postsecondary college programs closed following the passage of The Violent Crime Control and Law Enforcement Act of 1994, coupled with the slow growth of adult basic, secondary, and CTE courses, efforts to rehabilitate prisoners have taken a front seat in criminal justice reform debates today. Local, state and federal support for these programs has grown, as has the national prominence of corporate and philanthropic efforts to provide programming to people inside of prison and those who have just re-entered society.

Education for Liberation addresses how to reform our criminal justice system by better preparing individuals to successfully re-enter society upon their release from prison.  This volume complies chapters written by experts working in academia, policy, correctional agencies, and the private sector to address ideological debates as well as challenges and opportunities associated with providing an education to incarcerated adults.

February 2, 2019 in Prisons and prisoners, Reentry and community supervision | Permalink | Comments (1)

Thursday, January 31, 2019

US Sentencing Commission releases new report titled "Revocations Among Federal Offenders"

Research reports are coming so fast and furious from the US Sentencing Commission, it seems that all I have time for on a busy Thursday is to blog about yet another notable USSC report. Yesterday, as flagged in this post, the new USSC report was on economics crimes; today, the USSC released this 41-page report titled "Revocations Among Federal Offenders." This USSC webpage provides this "Summary" and "Key Findings":

Summary

This publication explores a subset of the Commission’s criminal history rules—those regarding the revocation of terms of probation, parole, supervised release, special parole, and mandatory release.  These rules affect an offender’s criminal history score and Criminal History Category.  This report analyzes the nature and prevalence of revocations, and explores the impact of revocations upon safety valve relief and the career offender guideline.

Key Findings

The key findings of the Commission’s study of revocations are that:

  • Only a minority of offenders (35.0%) with criminal history points under the federal sentencing guidelines had at least one scored conviction with a revocation. Most often such offenders had only one such conviction.

  • For the minority of offenders who did have at least one scored conviction with a revocation, it often increased their criminal history score and resulting Criminal History Category. Among offenders with at least one scored conviction in their criminal history, three-fifths (60.2%) received additional criminal history points, and just under a third (30.9%) received an increase in Criminal History Category. For those offenders who received an increase into a higher Criminal History Category, the impact was generally limited to one Criminal History Category.

  • The rate at which offenders had at least one scored conviction with a revocation varied significantly depending on the type of federal offender. Firearms offenders were the most likely (54.3%) and immigration offenders the least likely (20.9%) to have at least one scored conviction with a revocation. However, the impact of such convictions on their criminal history scores and Criminal History Categories varied much less. Among offenders with at least one such conviction, firearms offenders were the most often (66.2%) and immigration offenders least often (55.9%) to receive additional criminal history points. Furthermore, among offenders who received additional criminal history points, those points resulted in a higher Criminal History Category most often for drug trafficking offenders (53.1%) and least often for firearms offenders (42.9%).

  • The Commission cannot state with certainty how often revocations are based on new crimes versus technical violations because the underlying basis for the revocation could not be determined in 38.7 percent of the cases studied. However, between 38.9 percent and 77.5 percent of the revocations studied were for new crimes, and between 22.5 and 61.1 percent were for technical violations.

  • Prior revocations did not significantly limit offender eligibility for the statutory safety valve, which relieves certain drug trafficking offenders from otherwise applicable statutory mandatory minimum penalties. Of the drug trafficking offenders studied, only 2.3 percent appear to be ineligible for the safety valve based solely on scored convictions with revocations.

  • Prior revocations had a more significant impact on offenders who received the career offender enhancement at §4B1.1. Of the career offenders studied, 10.7 percent qualified for the career offender enhancement in part because of scored convictions with revocations.

January 31, 2019 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (0)

Sunday, January 27, 2019

Hiring initiative highlights how private employers can take a next step after FIRST STEP Act

This new CBNC article, headlined "Koch network leads coalition urging businesses to hire former inmates," reports on a notable new initiative that serves as a fitting private-sector follow-up on the FIRST STEP Act and similar state level reforms. Here are the details:

A broad coalition of business groups is pledging to hire workers with criminal backgrounds in the wake of a new federal law aimed at reducing incarcerations.

The movement is spearheaded by billionaire industrialist Charles Koch, who enlisted the support of the Society for Human Resource Management (SHRM). The U.S. Chamber of Commerce, the National Retail Federation, the National Restaurant Association and the American Staffing Association have signed on as well. Together, the groups represent businesses that employ roughly 60 percent of the American workforce.

"As business people, we have so many opportunities we aren't even aware of to make our country better and help people improve their lives. This is one of them," Koch said in a statement. "I challenge all of us, as business leaders, to take this important next step together."...

The Koch network has long pushed to overhaul the nation's criminal justice system. The group met with President Donald Trump at the White House last spring on the issue, leveraged relationships with Jared Kushner and Ivanka Trump, and urged lawmakers on both sides of the aisle to make a deal. The result was a rare bipartisan bill that Congress passed last year, just days before the government shutdown began.

The First Step Act reduces prison terms for nonviolent drug offenses and gives judges more discretion in setting those sentences. It also eliminates the "three-strikes" rule that imposed a mandatory life sentence for three or more drug convictions. The sentence is now 25 years.

The legislation could also have an impact on the nation's workforce, with roughly 650,000 people released from prison each year. SHRM Chief Executive Johnny Taylor said businesses have a responsibility to ensure former inmates have the opportunity to find a job and stay out of jail.

"Legislation is interesting, but it ultimately only matters if it results in behavioral change," Taylor said. "We can have a narrative around the importance of hiring the formerly incarcerated, and it really can all fall apart if employers -- primarily HR professionals -- don't make it happen."

The new business coalition is committing to using SHRM's guidelines for recruiting and hiring workers with criminal backgrounds. Taylor said it includes best practices for identifying candidates even before they are released from prison and having open discussions about the past....

The move also comes as businesses struggle to fill open jobs amid a shortage of workers. According to government data, there are nearly 6.9 million open positions, but only 6.3 million people who are unemployed. That means even if everyone were hired, business would still come up short....

"If all of us got fully engaged, think of the difference we could make to create second chances, reduce crime and poverty, and improve the quality of life for so many people," Koch said in a statement.

January 27, 2019 in Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

"Investing in Futures: Economic and Fiscal Benefits of Postsecondary Education in Prison"

The title of this post is the title of this new report produced by the Vera Institute of Justice and the Georgetown Center on Poverty and Inequality.  Here is how the report's introduction begins:

In 2016, more than 626,000 people were released from federal and state prisons and returned to communities across the United States.  Their odds of securing employment, housing, and other necessities after release depended, in part, on opportunities available to them while in prison.  Few such opportunities benefit incarcerated people as much as a postsecondary education — a certificate or degree beyond a high school diploma.  Most incarcerated people lack the financial resources to pay for postsecondary schooling.

Thus, the opportunity for them to earn a postsecondary credential while in prison depends in large part on public funding, which has been scarce since the mid-1990s. They face a significant failure of public policy: education is a road toward improving their lives when they leave prison that the current system makes it all but impossible to reach.

It was not always this way.

The Federal Pell Grant Program, authorized in 1972, provided financial support for education for low-income undergraduate students, including people in prison. By the early 1990s, there were more than 770 postsecondary programs in nearly 1,300 prisons.  But in 1994, as policymakers adopted more punitive approaches to the rising crime rate, Congress revoked incarcerated students’ access to Pell Grants with the passage of the Violent Crime Control and Law Enforcement Act. 

For a quarter-century, people in prison have lacked a reliable or consistent funding source for postsecondary education.  This absence of funding has translated into fewer educational opportunities for incarcerated people, contributing to the challenges they face on reentry.  Because they often have limited educational attainment before entering prison, formerly incarcerated people face profound challenges in the job market without additional education and skills.  Many remain locked in a cycle of poverty and potential recidivism.  Furthermore, the negative ripple effect through the economy is significant, including fewer skilled workers available to employers and increased incarceration costs for states as a result of high recidivism rates.

This vicious cycle has affected larger numbers of people as U.S. incarceration rates have ballooned: consider that from 1972 to 2010, the prison population increased by 700 percent.  As of this writing, there are more than 1.5 million people in state and federal prisons.

In recent years, state legislatures and the federal government have taken steps to end mass incarceration and adopt a “smart-on-crime” approach to criminal justice policy that includes decriminalization, sentencing reform, and greater investments in reentry.  Despite this progress, policymakers have not yet moved to restore Pell Grant eligibility to incarcerated people.  Doing so must be part of the next phase of criminal justice reform.

January 27, 2019 in Prisons and prisoners, Reentry and community supervision | Permalink | Comments (0)

Friday, January 25, 2019

Timely questions on enduringly important topics via The Crime Report

I have praised and promoted work done over at The Crime Report for many years, and the site remains a daily must-read for criminal justice fans.  And in the last few days, TCR has had two new pieces headlined with two questions that are timely and enduring.  Here are the headlines, links and brief excerpts:

"Can the U.S. Abolish Life Sentences?" (Q&A with Ashley Nellis)

TCR: You write, “Perhaps the most glaring omission of relevant data was the failure of the Bureau of Justice Statistics (BJS), the well-regarded research arm of the Department of Justice, to document the scale of life imprisonment.” Do you think this omission was on purpose or by accident?  And why?

Nellis: I think it’s not on purpose, there just a lack of resources in the research arms.  There’s also a lack of general interest from the public, so there was no incentive to document the expansion of life sentences. We shouldn’t be surprised that there hasn’t been data on the expansion because it goes along with laws and policies of the 1990s.

[The BJS] is not a political entity, but it seems to be. If you pass legislation at federal level that is bound to increase your incarcerated population… you should probably document the impact of those policies.  If you pass mandatory minimums with the elimination of parole, it seems wise to document how many people go to prison because you did that. Once a lot of the public sees the dramatic growth of life sentences— nearly five-fold increase over time — then they ask “why did nobody notice this before?” The answer is because nobody was recording it.

"Do We Really Need Probation and Parole?" (commentary by Vincent Schiraldi): 

Although “mass supervision” on probation or parole has not yet garnered the attention of “mass incarceration,” its impact is no small matter.  There are 4.5 million people under community supervision in America, twice as many as are incarcerated, a figure that amounts to more than the population in half of all U.S. states.  About four in ten people entering America’s prisons and jails each year are under supervision.  Many of those are incarcerated, not for committing new crimes, but for breaking a wide array of supervision rules.

January 25, 2019 in Criminal Sentences Alternatives, Data on sentencing, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (1)

Thursday, January 24, 2019

US Sentencing Commission releases big new report on "Recidivism Among Federal Violent Offenders"

Cover_recidivism-violenceThe US Sentencing Commission has just released its fifth major report in a series reviewing the recidivism rates of federal offenders released back in 2005.  This 74-page report is titled simply "Recidivism Among Federal Violent Offenders.This USSC webpage provides links, and this "Report Summary" and "Key Findings":

Report Summary

Recidivism Among Federal Violent Offenders is the fifth report in a series examining a group of 25,431 federal offenders who were released from federal custody in calendar year 2005. This report analyzes the recidivism rates of federal offenders who engaged in violent criminal activity. The study identifies two groups of violent offenders:

  • "Violent instant offenders" who engaged in violent criminal conduct as part of their instant federal offense; and 
  • "Violent prior offenders" who were not categorized as violent offenders based on their instant federal offense, but who had been arrested for a violent offense in their past.

Taken together, these 10,004 “violent offenders” are analyzed in comparison to the remaining 15,427 “non-violent offenders” released from federal custody in calendar year 2005.  (Published January 24, 2019)

Key Findings

Consistent with the Commission’s previous research, this report shows that offenders who engaged in violent criminal activity — whether during the instant federal offense or as part of prior criminal conduct — generally recidivated at a higher rate, more quickly, and for more serious crimes than non-violent offenders.

Key findings of the Commission’s study of recidivism among violent offenders are: 

  • A substantial number of the 25,431 U.S. offenders released in calendar year 2005 — 39.3 percent — engaged in violent criminal activity as part of their instant federal offense or prior criminal conduct.

  • Violent offenders recidivated at a higher rate than non-violent offenders.  Over 60 percent (63.8%) of violent offenders recidivated by being rearrested for a new crime or for a violation of supervision conditions.  This compares to less than 40 percent (39.8%) of non-violent offenders who were rearrested during the follow-up period.

  • Violent offenders recidivated more quickly than non-violent offenders.  Of those violent offenders who recidivated, the median time from release to the first recidivism event was 18 months.  Comparatively, the median time from release to the first recidivism event for non-violent offenders was 24 months.

  • Violent offenders recidivated for more serious crimes than non-violent offenders. Over one-fourth (28.4%) of the violent offenders who recidivated had assault as their most serious new charge, followed by public order crimes (15.6%) and drug trafficking (11.1%).  Of the non-violent offenders who recidivated, public order crimes were the most common new charge (20.9%), followed by assault (17.9%) and drug trafficking (12.0%).

  • Violent offenders have higher recidivism rates than non-violent offenders in every Criminal History Category, however, the difference in recidivism rates between violent and non-violent offenders is most pronounced in the lower Criminal History Categories and among offenders designated as career offenders or armed career criminals.

  • Recidivism rates for violent offenders in every age group at the time of release from custody were higher than the rates for non-violent offenders.  Violent offenders recidivated at twice the rate of non-violent offenders among those released after age 40.

  • Analyzed separately, violent instant offenders and violent prior offenders both recidivated at a higher rate and for more serious crimes than non-violent offenders.

January 24, 2019 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Reentry and community supervision | Permalink | Comments (3)

Wednesday, January 23, 2019

Parole and probation reforms now the focus for powerful players

A couple of days ago, Amy Solomon of the Laura and John Arnold Foundation and Jake Horowitz of The Pew Charitable Trusts’ public safety performance project together penned this notable Hill commentary headlined "US needs bold reforms to transform probation and parole." Here are excerpts:

The scale of American incarceration has been in the news recently, with growing bipartisan agreement that this challenge needs to be addressed. Yet a related issue continues to operate below the radar: The number of people on probation or parole supervision in the United States, which has tripled in the past three decades.

Although it might seem counterintuitive, this rapid growth in supervision can serve to increase jail and prison populations — an outcome that should concern policymakers and taxpayers alike. While about half of the nearly 4.5 million people on probation or parole will successfully complete their sentences, onerous supervision requirements can become a tripwire, resulting in incarceration. In 2016, for example, 350,000 people exited supervision by entering a jail or prison — often for violating rules such as failing a drug test or missing a required meeting, rather than for a new criminal offense.

In an effort to transform community supervision and shift the focus from punishing failure to promoting success, the Laura and John Arnold Foundation and The Pew Charitable Trusts recently announced an initiative to work with leading experts on community supervision policy, practitioners at the state and local levels, and advocates and stakeholders such as victims’ family members, to adopt evidence-backed reforms.

Over the past two decades, research has shown that current probation and parole practices often deliver less-than-optimal results. We know, for example, that supervision with a large number of conditions can interfere with an individual’s progress of reintegrating into the community. Some jurisdictions have responded to this research. Since the community supervision population reached its peak in 2007, both the crime rate and the rate of community supervision have gone down in 37 states. Texas and South Carolina, among other states, have had declines in crime and supervision of 20 percent or more.

Yet despite the growing body of evidence that supervision can be counterproductive, too many jurisdictions continue to emphasize surveillance and impose standard, one-size-fits-all rules, rather than utilizing an integrated approach with treatment and conditions tailored to the individual. These rules include frequent in-person reporting requirements, which often conflict with job or family responsibilities, and costly fines and fees that disproportionately affect poor people, impeding their ability to rebuild their lives....

The good news is that many states have adopted policy changes aimed at shrinking the number of people on supervision, reducing revocations for technical violations, and investing in community-based treatment. But there’s a long way to go, and we must help states and supervision agencies adopt even bolder reforms.

A new report by our two organizations shows that a smaller correctional footprint and less crime can go hand-in-hand. Supervision for the 21st century will require that probation and parole agencies boost the public safety value of community corrections. That means addressing areas that support reintegration such as strengthening family ties and connections to the community, improving workforce development, and increasing access to drug treatment, as well as repairing the harm inflicted on victims.

On theme, today come the news that a group of celebrities and business leaders have formed a new organization, the REFORM Alliance, to work on these issues. This NBC News piece, headlined "Meek Mill, Jay-Z headline alliance to reform U.S. parole, probation laws," provides these details:

Sports, entertainment and business leaders announced the launch of an organization aimed at reforming the United States’ criminal justice system. Meek Mill and Jay-Z are among the group of leaders who pledged approximately $50 million to create the Reform Alliance.  Its mission is to drastically reduce the number of people living under unjust parole and probation sentences, “while keeping communities safe by changing laws and public opinion.”

Other founding partners include Philadelphia 76ers co-owner Michael Rubin; Kraft CEO and New England Patriots owner Robert Kraft; Brooklyn Nets co-owner Clara Wu Tsai; Vista Equity Partners founder Robert F. Smith; Galaxy Digital founder Michael E. Novogratz; and Third Point LLC founder Daniel S. Loeb. CNN host and activist Van Jones will serve as CEO.

In an interview with NBC News’ Lester Holt, Mill said he hopes the Reform Alliance will shed light on the issues within the criminal justice system. “This is not us going against the system, this is us trying to fix the system,” the rapper said. “These problems affect America, they affect families, they affect taxpayers. ... I hope we bring real change to help fix the problem.”

January 23, 2019 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (1)

Wednesday, January 16, 2019

"Top Trends in State Criminal Justice Reform, 2018"

The title of this post is the title of this two-page briefing paper authored by Nicole Porter for The Sentencing Project which highlights significant criminal justice policy changes at the state level in 2018. Here is how the document gets started:

The United States is a world leader in incarceration rates and keeps nearly 7 million persons under criminal justice supervision. More than 2.2 million are in prison or jail, while 4.6 million are monitored in the community on probation or parole. Changes in sentencing law and policy, not changes in crime rates, have produced the nation’s high rate of incarceration. Scaling back incarceration will require changing policy and practice to reduce prison populations, intentionally address racial disparity, and eliminate barriers to reentry. In recent years a number of states have enacted reforms designed to reduce the scale of incarceration and impact of the collateral consequences of a felony conviction. This briefing paper describes key reforms undertaken in 2018.

Notably, this short document makes no mention of state level marijuana reforms, even though many are motivated, at least in part, by interest in addressing racial disparities and eliminating barriers to reentry. This reinforces my long-standing view that there is a tangible disconnect between criminal justice reform movements and marijuana reform movements.

January 16, 2019 in Race, Class, and Gender, Reentry and community supervision, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Thursday, January 10, 2019

"Reducing Barriers to Reintegration: Fair chance and expungement reforms in 2018"

Cover-Fair-Chance-Reform-2018The title of this post is the title of this notable new report from the Collateral Consequences Resource Center to document the laws passed in 2018 aimed at reducing barriers to successful reintegration for individuals with a criminal record. Here is the report's executive summary:

* In 2018, 30 states and the District of Columbia produced 56 separate laws aimed at reducing barriers faced by people with criminal records in the workplace, at the ballot box, and elsewhere.  Many of these new laws enacted more than one type of reform.  This prolific legislative “fair chance” track record, the high point of a six-year trend, reflects the lively on-going national conversation about how best to promote rehabilitation and reintegration of people with a criminal record.

* As in past years, approaches to restoring rights varied widely from state to state, both with respect to the type of relief, as well as the specifics of who is eligible, how relief is delivered, and the effect of relief.  Despite a growing consensus about the need for policy change to alleviate collateral consequences, little empirical research has been done to establish best practices, or what works best to promote reintegration.

* The most promising legislative development recognizes the key role occupational licensing plays in the process of reintegration, and it was this area that showed the greatest uniformity of approach.  Of the 14 states that enacted laws regulating licensing in 2018, nine (added to 4 in 2017) adopted a similar comprehensive framework to improve access to occupational licenses for people with a criminal record, limiting the kinds of records that may be considered, establishing clear criteria for administrative decisions, and making agency procedures more transparent and accountable.

* The most consequential single new law was a Florida ballot initiative to restore the franchise to 1.5 million people with a felony conviction, which captured headlines across the country when it passed with nearly 65% of voters in favor.  Voting rights were also restored for parolees, by statute in Louisiana and by executive order in New York.

* The largest number of new laws — 27 statutes in 19 states — expanded access to sealing or expungement, by extending eligibility to additional categories of offenses and persons, by reducing waiting periods, or by simplifying procedures.  A significant number of states addressed record clearing for non-conviction records (including diversions), for marijuana or other decriminalized offenses, for juveniles, and for human trafficking victims.

* For the first time, the disadvantages of a separate petition-based relief system were incorporated into legislative discussions.  Four states established automated or systemic record-sealing mechanisms aimed at eliminating a “second chance gap” which occurs when a separate civil action must be filed.  Pennsylvania’s “clean slate” law is the most ambitious experiment in automation to date.  Other states sought to incorporate relief directly into the criminal case, avoiding the Pennsylvania law’s technological challenges.

* Three additional states acted to prohibit public employers from inquiring about criminal history during the initial stages of the hiring process, Washington by statute, and Michigan and Kansas by executive order.  Washington extended the prohibition to private employers as well.  A total of 33 states and the District of Columbia now have so-called “ban-the-box” laws, and 11 states extend the ban to private employers.

* Four states expanded eligibility for judicial certificates of relief. Colorado’s “order of collateral relief” is now the most extensive certificate law in the nation, available for almost all crimes as early as sentencing, and effective to bar consideration of conviction in public employment and licensing. Arizona, California, and North Carolina made more modest changes to facilitate access to this judicial “forgiving” relief.

* The District of Columbia established a clemency board to recommend to the President applications for pardon and commutation by D.C. Code offenders. Governors in California and New York used their pardon power to spare dozens of non-citizens from deportation, and California also streamlined its pardon process and made it more transparent.  Moving in the other direction, Nebraska authorized sealing of pardoned convictions, and Maine made both pardon applications and pardon grants confidential.

* The legal landscape at the end of 2018 suggests that states are experimenting with a more nuanced blending of philosophical approaches to dealing with the collateral consequences of arrest and conviction.  These approaches include forgiving people’s past crimes (through pardon or judicial dispensation), forgetting them (through record-sealing or expungement), or forgoing creating a record in the first place (through diversionary dispositions).  While sealing and expungement remain the most popular forms of remedy, there seems to be both popular and institutional resistance to limiting what the public may see respecting the record of serious offenses, and a growing preference for more transparent restoration mechanisms that limit what the public may do with such a record, along with standards to guide administrative decision-making.

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

Friday, December 28, 2018

Spotlighting how FIRST STEP Act implementation challenges and uncertainty has already begun

A week ago the FIRST STEP Act was signed into law, and my first post celebrating this achievement stressed the challenging and critical work of implementing the law well.  Today, this new Washington Examiner piece, headlined "Prisoners due for release under First Step Act stuck in limbo," spotlights that implementation difficulties have already begun.  Here are excerpts:

President Trump shortened the sentences of thousands of prisoners by signing the First Step Act days before Christmas.  But one week later, inmates and their frustrated families say they are afraid the gift won’t be delivered in time to hasten release dates.

Silence from the Federal Bureau of Prisons is creating fear that foot-dragging will eat into reductions mandated by Trump's most significant bipartisan policy achievement.  The new law gives many prisoners an extra seven days off their sentences for each year of good behavior, but it's unclear when authorities will make the calculations.

“Literally, my brother has packed his stuff and is waiting for the call,” said Veda Ajamu, whose brother Robert Shipp, 46, has served 25 years of a drug sentence. Shipp had a November 2019 release date, but Ajamu believes he may be going home immediately under the new law, which would shave off about 175 days, potentially making him eligible for a halfway house or home confinement, which is typical at the very end of sentences. “I’m thinking to myself, ‘I don’t know what to do. I’m feeling anxious. I don’t want to be at the wrong place when he calls,’” said Ajamu, who plans to pick up her brother.

“Some families have loved ones who they know would be home tomorrow,” said Kevin Ring, president of Families Against Mandatory Minimums and a former executive director for the conservative Republican Study Committee. “People are very concerned about when this is going to get done. Congress has passed this. It's in effect."

Advocates estimate that 4,000 federal prisoners will be released almost immediately under the good-time expansion. A smaller number can petition courts for old crack cocaine sentences to be reduced.

For Craig Steven Houston, 48, the good-behavior change alone could mean 210 days off a 30-year crack cocaine sentence. He had an August release date, but the law means he could get out in just 22 days, on Jan. 19., according to his family. “We want to be prepared and know what's going on,” said Steve Henderson, who was raised with Houston and considers him a brother.

Concerned families are calling the Bureau of Prisons’ Designations and Sentence Computation Center, which calculates sentences. But some say calls haven’t been answered. “When you have an infraction in prison, when they take the time away from you, they calculate it immediately... the next day it is gone,” Henderson said. “You have people across the country who are supposed to be home. All of a sudden DSCC isn't answering their phones.”

It’s unclear what effect the ongoing partial government shutdown is having. Bureau of Prisons spokespeople did not respond to multiple requests for clarification this week. Part of the delay may be explained by lack of implementation guidance. "We are currently reviewing the new legislation to determine implementation guidance for BOP and other DOJ components," said Justice Department spokesman Wyn Hornbuckle. Hornbuckle noted that more than 80 percent of the department workforce is working through the government shutdown, which began hours after Trump signed the First Step Act.

December 28, 2018 in FIRST STEP Act and its implementation, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (2)

Thursday, December 27, 2018

Spotlighting the enduring challenges posed by risk-assessment mechanisms built into FIRST STEP Act

LawProf Brandon Garrett has this important new Slate commentary headlined "The Prison Reform Bill’s Implementation Will Be Tricky; Here’s how to ensure it’s a success." I recommend the piece in full, and here are excerpts:

The First Step Act, the federal prison reform bill that President Donald Trump signed into law on Friday, represents a bipartisan and major effort at making the criminal justice system fairer.  This step will only be a baby step, however, if the engine that drives the entire piece of legislation — risk assessments of federal prisoners’ likelihood to reoffend — is not used carefully and with sound scientific and public oversight.

The statute ... allows federal prisoners, who now number about 180,000, to earn credits toward early release based on rehabilitative programs and their risk of reoffending.  The statute states that an algorithm will be used to score every prisoner as minimum, low, medium, or high risk.  But the legislation does not say how this algorithm will be designed. The Senate’s version of the First Step Act, which refers to “risk” 100 times, calls for a “risk and needs assessment system” to be developed in 210 days, and then made public and administered to every federal prison within the following 180 days.

That may not be nearly enough time to carefully study all of the questions raised by creating such a massive system.  Take as an example the experience in Virginia, which has been hailed as a national model and “leading innovator” by the American Law Institute for using risk assessment to divert low-risk offenders from prison.  Virginia spent several years developing its risk assessment system.  The Virginia Criminal Sentencing Commission carefully obtained public input, scientific evaluations, and pilot studies, before implementing it statewide.

But in a recent series of studies of the effort to divert prisoners in Virginia, John Monahan, Alexander Jakubow, Anne Metz, and I have found that there is wide variation in how courts and judges apply this risk assessment....  People are not algorithms.  The statute’s fairness will hinge on the discretion that prison officials exercise, informed by the scores from a risk assessment but also by their own judgment.  The First Step Act’s success will similarly depend on resources for real rehabilitative programs.  It calls for evidence-based evaluation of such programs, but that research will also take time.

While using an evidence-informed tool can be better than simply leaving everything to prison officials’ discretion, there needs to be more than buy-in by the decision-makers — the right tools need to be used.  Michelle Alexander and others have raised concerns, for example, with risk assessments that rely on information about prior arrests or neighborhood information that can produce stark racial bias.  The Senate’s version of the act speaks to the potential for bias and asks the comptroller general to conduct a review after two years to identify “unwarranted disparities.”  The act also calls for an independent review body that includes researchers who have studied risk assessment and people who have implemented it.  These are important steps.  Involvement of scientists and the public will be needed to consider whether invidious and potentially unconstitutional discrimination results — otherwise, protracted constitutional litigation challenging these risk assessments will be a foregone conclusion.

Still, there is much that is positive about the bill’s many provisions dealing with risk.  The First Step Act emphasizes not just recidivism but also programs that support rehabilitation.  It is noteworthy that the legislation calls for re-evaluation of prisoners each year so that risk scores are not set in stone. All prisoners are able to reduce their classification.  This should be taken seriously.  The risk of any person may decline dramatically over time simply as a matter of age, as the U.S. Sentencing Commission documented in a study last year.

The statute also makes the attorney general the risk assessor in chief — with input from the independent scientific reviewers — of the risk assessment used on 180,000 prisoners each year.  That scientific input is critical, and it should be solicited from the broader scientific community.  It’s also worth noting that the Department of Justice has recently shut down key science advisory groups; this law hopefully takes an important first step toward bringing science back in.

December 27, 2018 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Race, Class, and Gender, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Friday, December 21, 2018

Prez Trump signs historic (though modest) FIRST STEP Act into law ... and now comes the critical work of implementing it well!!

President Donald J. Trump officially signed the FIRST STEP Act into law today, and I am so very excited that a significant piece of sentencing and prison reform finally became law after years and years and years of talk and effort by so many.  I wish the reform was even more significant, especially on the sentencing side, but something is better than nothing and but for a modest reform to crack sentencing terms, we really have had nothing positive coming from Congress on the sentencing side in more than 20+ years.

The White House has this extended "fact sheet" about the FIRST STEP Act under the heading "President Donald J. Trump Secures Landmark Legislation to Make Our Federal Justice System Fairer and Our Communities Safer."  Here is an excerpt:

CREATING SAFER COMMUNITIES AND A FAIRER FEDERAL JUSTICE SYSTEM: The First Step Act will make our Federal justice system fairer and our communities safer.

  • The First Step Act will help prepare inmates to successfully rejoin society and enact commonsense sentencing reforms to make our justice system fairer for all Americans.
  • Among many reforms, the First Step Act will:
    • Promote prisoner participation in vocational training, educational coursework, or faith-based programs by allowing prisoners to earn time credits for pre-release custody.
    • Expand prison employment program opportunities.
    • Enact fair, commonsense reforms to mandatory minimums.
    • Eliminate the three-strike mandatory life sentencing provisions.
    • Give certain offenders the ability to petition the courts for a review of their sentences.

As the title of this post highlights, I am viewing the enactment of the FIRST STEP Act only as completing stage 1 of achieving significant federal criminal justice reform. Stage 2 involves the critical work of implementation, and so many of the large and small elements of the the FIRST STEP Act involve important and challenging implementation issues. Most obviously, the risk assessment system for prisoner programming and time credits needs to be developed and deployed in a fair and effective way and that is easier said than done. And the instruction that federal prisoners be house, whenever possible, within 500 miles of their homes is easier to describe than to ensure. And the new authority created by the FIRST STEP Act for courts to consider directly so-called "compassionate release" motions for sentence reductions presents a profound opportunity and a profound challenge for taking a second look at extreme (and extremely problematic) sentences.

I could go on and on, but I will save FIRST STEP Act "issue spotting" for the days and weeks ahead (I have created a new category archive for this very purpose).  For now I will just savor needed legal change and congratulate all those on the front lines who worked so very hard to help make this day possible.  Wow!

December 21, 2018 in Criminal justice in the Trump Administration, FIRST STEP Act and its implementation, Mandatory minimum sentencing statutes, Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (6)

Thursday, December 20, 2018

"California transformed its justice system. But now crime is up, and critics want rollbacks"

La-1545291924-l4bgfb9fvx-snap-imageThe title of this post is the headline of this notable new Los Angeles Times article that merits a read in full. Here is the first part of the piece:

Over the last decade, California has led the nation in reducing its prison population. The state has shortened sentences and diverted some offenders to the counties for incarceration and supervision, transforming California’s criminal justice system into what supporters hope will become a humane model around the country.

But amid the changes, crime has increased in recent years, sparking debate about the causes and giving ammunition to those leading a new effort to roll back some of the reforms.

An analysis by the Marshall Project and the Los Angeles Times found that California’s crime rates remain near historic lows, but overall crime spiked in both 2012 and 2015, the years that immediately followed two major statewide measures aimed at decreasing the number of people in prison. Those jumps were mainly driven by increases in property crimes, particularly thefts from motor vehicles.

After decades of mirroring national downward trends in violent crime, California saw a 12% increase from 2014 to 2017, while the violent crime rate in the other 49 states together increased only 3%, the analysis showed. In 2014, California voters approved a ballot measure that reduced sentences for many low-level drug and property crimes. California’s property crime rate fell slightly in the last two years, but remains 2% higher than it was in 2014. By contrast, the rate of property crimes in the rest of the nation has dropped by 10% over the same period.

There is no simple explanation. Crime trends vary dramatically from county to county. Thirty-one of the state’s 58 counties saw an increase in violent crime last year, while 22 saw an increase in property crimes. The rest stayed flat or declined. What single factor can explain the fact that violent crime went up 6% last year in Los Angeles but fell 6% in Sacramento?

There also have been large differences in the way counties spent the billions in state money allocated to implement the new measures. Some focused on building jails, others on recruiting and deploying police, and still others experimented with collaborative courts and reentry programs.

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To complicate matters, specific crimes come with their own caveats. Reports of rape have increased nationally since 2013, for example, but sexual assaults have traditionally been underreported, and part of the increase stems from the FBI’s decision to broaden its definition of rape in 2013. (The Marshall Project and Times data analysis excluded rape.) Reports of aggravated assaults in California also have increased, but part of that increase is likely due to underreporting from 2005 to 2012 by the Los Angeles Police Department.

California’s criminal reform revolution began in earnest in 2011 after the U.S. Supreme Court approved a cap on the number of inmates in prison. Lawmakers responded by passing Assembly Bill 109, known as realignment, which lowered the prison population by shifting the burden to the counties to house and supervise thousands of inmates convicted of crimes that the law categorized as nonviolent and nonserious.

Three years later, California voters approved Proposition 47, which turned drug use and most theft convictions from felonies to misdemeanors. In 2016, voters overhauled the state parole system by backing Proposition 57, which gave thousands of inmates the chance to earn an earlier release from prison.

The undeniable result of all these measures is that people are on the street today who would have been locked up in previous years. Critics of the reforms argue that they have created a permissive climate that makes policing harder and weakens the deterrent effect of a possible prison sentence.

“There’s no accountability,” said Assemblyman Jim Cooper (D-Elk Grove). “People know they can get away with things. That’s contributed to it. That’s really been a big source of frustration. No one’s going to jail anymore.” Cooper, a retired Sacramento County sheriff’s captain, has been a leading voice in a coalition of prosecutors and law enforcement groups pushing back.

A statewide initiative that will appear on the 2020 ballot would reverse some provisions of Proposition 47, toughen supervision of parolees and disqualify some prisoners from early release.

Backers of the proposed rollback argue that the state’s drug courts, intended as an alternative to criminal courts, are seeing fewer people because prosecutors can no longer force someone into treatment with the threat of a felony. (Some counties, including San Diego, have reported decreases in drug court participation since Proposition 47, but no statewide figures are available.) Those who favor toughening the law also claim counties are struggling to supervise offenders with violent criminal records.

Supporters of the prison downsizing measures dispute any link between the new laws and an increase in crime. They argue that using 2014 as a baseline — the year with the fewest crimes reported in the state since the 1960s — unfairly skews any analysis. “To look at it from a year-to-year basis is very short-sighted,” said Michael Romano, the director of the Three Strikes Project at Stanford Law School who helped write Proposition 47. “We really have had a sustained downward trend over the past decade or two.” He said it’s unlikely any single factor led to an increase in crime, but rather a combination of issues, such as poverty and unemployment, in different counties throughout the state.

Californians for Safety and Justice, a group that co-authored Proposition 47, points out that several states saw larger increases in violent crime than California from 2016 to 2017. (An analysis by The Times and the Marshall Project found 20 states with larger increases in violent crime rates.) They note that none of the recent laws changed penalties for violent crimes.

In 2013, the nonpartisan Public Policy Institute of California found that the first major prison downsizing law, realignment, had no effect on violent crime, but did lead to an increase in auto thefts. In 2016, a prestigious social science journal reached a similar conclusion. Under realignment, people convicted of auto theft, a nonviolent felony, usually serve shorter sentences in their local jails and are released under local supervision.

Two studies published this summer — one by a UC Irvine criminologist and another by the Public Policy Institute of California —found no link between Proposition 47 and increases in violent crime. Both noted a possible link between the initiative and increases in larceny, particularly thefts from motor vehicles, although the Irvine study found those links too tenuous to conclude Proposition 47 was to blame.

After national crime data for 2017 released this fall showed California departed from the national trend — violent crime in California ticked up slightly while it fell slightly across the 49 other states taken together — researchers said they planned to revisit the question of a link between Proposition 47 and violent crime. California’s robbery rate jumped 14% from 2014 to 2017; the rest of the country saw a 7% drop. “It is troubling and deserves more attention,” said Magnus Lofstrom, policy director of corrections at the Public Policy Institute of California.

In addition to praising the work of this article, I wanted to flag the possibility that the stories of crime in California might get even more complicated and unclear if and when we get complete data for 2018. The recent Brennan Center report indicates crime is down in 2018 in some major California cities and that murder is down a lot in all big California cities. If these numbers hold true throughout the state reform advocates will have some important data to push back on the claim that reform rollbacks are needed to enhance public safety.

UPDATE The day after running this general story about an uptick in California crime, the Los Angeles Times followed up with this more encouraging local tale under the headline "Crime once plagued San Joaquin County, but now its jail has empty beds. Here’s what it did right."  The unsurprising take-away is that how and how well a jurisdiction implements criminal justice reform impacts how well criminal justice reform works.

December 20, 2018 in National and State Crime Data, Reentry and community supervision, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences | Permalink | Comments (1)