Wednesday, December 12, 2018

Prison Policy Initiative produces "Correctional Control 2018: Incarceration and supervision by state"

National_correctional_control2018The fine folks at the Prison Policy Initiative a few years ago produced this first version of a report that sought to aggregate "data on all of the kinds of correctional control: federal prisons, state prisons, local jails, juvenile incarceration, civil commitment, Indian Country jails, parole and, lastly but importantly, probation."  PPI's latest version of this report, now called "Correctional Control 2018: Incarceration and supervision by state," gets started this way:

The U.S. has a staggering 2.3 million people behind bars, but even this number doesn’t capture the true scale of our correctional system.  For a complete picture of our criminal justice system, it’s more accurate to look at the 6.7 million people under correctional control, which includes not only incarceration but also probation and parole.

The vast majority of people under correctional control are on probation and parole, collectively known as community supervision (or community corrections).  An estimated 4.5 million adults are under community supervision, nearly twice the number of people who are incarcerated in jails and prisons combined. Yet despite the massive number of people under their control, parole and probation have not received nearly as much attention as incarceration.  Only with recent high-profile cases (such as rapper Meek Mill’s probation revocation) has the public begun to recognize the injustices plaguing probation and parole systems, which set people up to fail with long supervision terms, onerous restrictions, and constant scrutiny.  Touted as alternatives to incarceration, these systems often impose conditions that make it difficult for people to succeed, and therefore end up channeling people into prisons and jails.

Understanding correctional control beyond incarceration gives us a more accurate and complete picture of punishment in the United States, showing the expansive reach of our criminal justice system.  This is especially true at the state level, as some of the states that are the least likely to send someone to prison are the most likely to put them under community supervision.  Given that most criminal justice reform will need to happen at the state and local levels, it is crucial for states to assess not only their incarceration rates, but whether their “alternatives” to incarceration are working as intended.

For this report, we compiled data on each state’s various systems of correctional control to help advocates and policymakers prioritize targets for reform.  This report includes data on federal prisons, state prisons, local jails, juvenile confinement, involuntary commitment, Indian Country jails, parole, and probation. We make the data accessible in one nationwide chart and 100 state-specific pie charts.  In this update to our original 2016 report, we pay particular attention to the harms of probation and parole, and discuss how these systems might be reworked into more meaningful alternatives to incarceration.

December 12, 2018 in Collateral consequences, Criminal Sentences Alternatives, Data on sentencing, Detailed sentencing data, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (0)

Tuesday, December 11, 2018

Senate leader Mitch McConnell says in floor speech that he will bring up FIRST STEP Act for a vote!!

Most everything that happens inside the Beltway tends to make me sad and frustrated, but I was feeling especially sad and frustrated by report that the FIRST STEP Act would not even get a vote in the Senate this year.  But, providing a belated Hannukah gift and an early Christmas gift is this exciting news via the Washington Post: "McConnell to bring up criminal-justice bill for a Senate vote."  Here are the details:

Senate Majority Leader Mitch McConnell (R-Ky.) said Tuesday that the Senate will vote on a sweeping overhaul of the criminal justice system that has proven deeply controversial within the Senate Republican ranks. 

McConnell said in a floor speech Tuesday morning that the Senate will take up the legislation, written by Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa), Sen. Richard J. Durbin (D-Ill.) and several other Democratic and Republican senators, in December, perhaps as early as the end of this week. 

He also warned that because of the decision to add the criminal justice bill to the Senate agenda, “members should now be prepared to work between Christmas and New Year’s.” He urged senators to “work together or prepare for a very, very long month.”

Since I am regularly working — usually grading, researching and blogging — between Christmas and New Year's, I am not at all troubled that Senators will also have to squeeze in a little extra work to earn their final 2018 paychecks.   

This report is certainly something to celebrate among everyone eager to see some — any — positive reforms to our federal criminal justice system.  But, of course, having a bill enacted and signed by the Prez is critical before a full celebration is appropriate. In addition, various reports of various carve outs in order to garner GOP support for various part of the bill suggest that the final legislation could prove especially modest in various particulars.  Still, as I see it, something is always better than nothing, and any version of the FIRST STEP Act is likely to be something.

Some of the most recent of many prior related posts:

December 11, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (2)

Monday, December 03, 2018

The faulty and foul thinking continuing to thwart a vote on the FIRST STEP Act

A new week bring a new round of stories about the status of the debate over the FIRST STEP Act.  For example, this morning's Politico piece, headlined "Trump lays off McConnell as criminal justice reform stalls: Advocates fear the president isn’t fully invested in the fight for the bill," is focused on whether Prez Trump should be trying to do more to get the legislation through Congress.  Given that Prez Trump does not work in Congress, I would rather these days to see stories about whether he will ever make good on all his prior clemency talk, but that it a topic for a coming post.

Of course, I understand why Politico and others are inclined to focus on Prez Trump 's role in this process, but I have long been wondering why nobody is talking about whether Senate Judiciary Chair Charles Grassley would be willing to stall/block any and all votes on judicial nominees — not only now in lame duck, but also in the next Congress — until a Senate floor vote is scheduled on criminal justice reform bills.  As this AP story notes, outgoing GOP Senator Jeff Flake is using his judiciary power to block votes on judges to seek a floor vote on a bill to provide protections for the special counsel.  As a Beltway outsider, I do not see why Senator Grassley — or other big GOP reform supporters on the Judiciary Committee like Mike Lee — are not at least talking up a similar move to try to get Senator McConnell to schedule a vote on the FIRST STEP Act.

Meanwhile, this CNN article discussing the discussion of the FIRST STEP Act among GOP Senators provides this glimpse into the faulty and foul thinking that creates challenges for any and all criminal justice reform efforts:

Sens. John Cornyn of Texas and Dick Durbin of Illinois, the number-two ranking Republican and Democrat respectively, discussed in the Senate gym Thursday morning potential compromises that could get wary Republicans on board. "This is a once in a political lifetime opportunity," Durbin said.

In a separate interview, Cornyn said that addressing some of the concerns of one law enforcement group — the National Sheriffs' Association — would "guarantee" the support of some Republicans. Cornyn, the GOP Whip, said his job was to give McConnell "an accurate count of where the votes are," rather than arm-twisting members into voting for it.  He also noted that "our time is limited" in getting it done.

Many Democrats are in favor of the bill — Durbin, the Democratic whip, said his party's "support for this measure is solid." If the Senate can pass it, the House is expected to easily do so too.

This has left the fight to Republican members of the Senate.  Sen. Rand Paul, a Republican from Kentucky, told CNN that there's a generational divide within the party on the issue....  "We had one of the senators in the lunch saying, 'You know how you get no recidivism?  Don't ever let him out of jail.  Zero recidivism!'" added Paul, referring to a closed-door meeting GOP senators held this week.

This contention of "Zero recidivism!" is most obviously faulty because it fails to acknowledge that prisoners can and do commit crimes while in prison, with the most common victims being prison guards and other prisons.  This contention is most obviously foul because it entirely disregards the humanity and social meaning of those persons who become federal prisoners (not to mention all their friends and families).  Fundamental ignorance about prisons and prisoners, along with a easy willingness to dehumanize and disregard the interests of those in our criminal justice system and those who care about those in our criminal justice system, help account for why it can be so very easy for all to many leaders to talk this way when seeking to thwart thoughtful and balanced criminal justice reform efforts.

Of course, though nobody is really serious about making all federal crimes subject to mandatory LWOP terms in the name of recidivism reduction, there is also a telling revelation in this faulty and foul comment imagining permanent imprisonment for everyone.  Opponents of the FIRST STEP Act are fundamentally making the claim that we should fear a bill intended and well-designed to seek to reduce recidivism rates among federal prisoners because the recidivism rates among federal prisoners are currently too high.  

Some of the most recent of many prior related posts:

December 3, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

Wednesday, November 28, 2018

"Lessons for Sentencing Reform and Reentry: A Case Study of Project New Opportunity"

The title of this post is the title of this new Center for Community Alternatives' Justice Strategies report. Here is its executive summary:

This study looks at the development and implementation of Project New Opportunity (PNO).  PNO was created to provide reentry support to people being released from federal prison under President Obama’s Clemency Initiative and the United States Sentencing Commission’s (USSC) 2014 reduction in drug sentencing guidelines.

Through the retroactive application of the guideline reforms, about 6,000 individuals were eligible to be released on November 1, 2016.  Another 1,928 were released though the Clemency Initiative. Yet except for probation supervision and Bureau of Prison (BOP) halfway houses, there were no reentry supports available to these individuals, many of whom had served decades in prison.

The Center for Community Alternatives (CCA) worked with Project Director Malcolm Young to design the PNO project to provide a model of reentry support for people released under these criminal justice reform efforts.  PNO is based on research both about the challenges that accompany the transition from prison to community and the role that formerly incarcerated people can play in helping newly released people make this transition.  Imprisonment leaves scars including post-traumatic stress responses, a lack of familiarity with the routines of daily life, and forms of culture shock as one confronts technological and other changes that have occurred during one’s time in prison.  These adjustment issues contribute to recidivism, which is highest within the first 6 months of release.

The key elements of PNO’s model are: 1) a staffing plan that relies on formerly incarcerated people as Reentry Consultants, and 2) an “inside/outside” connection that introduces incarcerated people to their Reentry Consultant six months prior to their release and continues after release.  The majority of PNO participants cited this pre-release connection with someone who will be there when they get out as the primary benefit of the program.

PNO adds yet another example to the growing body of evidence that shows that sentencing reform, shorter sentences and early release mechanisms are reasonable and humane without jeopardizing public safely.  While PNO was unable to track recidivism of its participants through official data, it was able to follow up through the Reentry Consultants and/or participants themselves.  The information, while informal, is very encouraging: there were no known incidents or reports of rearrests, violations of the terms of probation supervision, or incarceration from the consultants or participants.  This suggests that PNO was able to help people stabilize and avoid new encounters with the criminal justice system in the immediate aftermath of release.

November 28, 2018 in Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, November 27, 2018

Meek Mill continues to shine a light on the need for criminal justice reform

As noted in this post, after being released from prison earlier this year, rapper Meek Mill pledged to use his spotlight to "shine a light" on how America's criminal justice systems treat people of color.  He has made good on that pledge in various ways, including through this recently published New York Times opinion piece with this extended headline: "Meek Mill: Prisoners Need a New Set of Rights; Like many who are now incarcerated, I was the victim of a miscarriage of justice.  I got lucky, but because of dysfunctional, discriminatory rules, most don’t."  Here is an excerpts from this commentary:

Like many who are currently incarcerated, I was the victim of a miscarriage of justice — carried out by an untruthful officer, as determined by the Philadelphia District Attorney’s office, and an unfair judge.

My crime? Popping a wheelie on a motorcycle in Manhattan. Even though the charge was dismissed in a New York City court, a Philadelphia-based judge still deemed my interaction with the police to be a technical violation of my probation — stemming from a 2007 arrest — and sentenced me to two to four years in prison despite the fact that I didn’t commit a crime. The judge also refused my motion for bail, calling me a “danger to the community” and a “flight risk.”

The ordeal cost me my most precious commodity: my freedom. I served five months. With the help of friends and the intervention of the Pennsylvania Supreme Court, I was released on bail this past April and was able to resume my life.

But I know I’m the exception to the rule — a lucky one. It’s clearer than ever that a disproportionate number of men and women of color are treated unfairly by a broken criminal justice system. The system causes a vicious cycle, feeding upon itself — sons and daughters grow up with their parents in and out of prison, and then become far more likely to become tied up in the arrest-jail-probation cycle. This is bad for families and our society as a whole....

We all need to hold our lawmakers accountable for supporting unfair or inhumane policies and all practices that perpetuate injustice, especially for the blacks and Latinos who fall prey to them most frequently. The reality is African-Americans and Latinos who come from poverty-stricken neighborhoods are assigned public defenders too overburdened to do anything in most cases other than negotiate the most favorable plea deal, regardless of guilt or innocence.

Soon, some friends and I will be announcing a foundation dedicated to achieving real change. In the meantime, if you’re interested in joining us and lending your support to solving what is the moral crisis of our time, please visit www.reformnow.com and sign up.

Together, we will demand stronger prison rehabilitation programs, updated probation policies — including shortened probationary periods — an improved bail system and balanced sentencing structures.

It’s a shame that model probationers can be immediately put back behind bars simply for missing curfew, testing positive for marijuana, failing to pay fines on time or, in some cases, not following protocol when changing addresses. Our lawmakers can and should do away with these “technical violations.”

And more broadly, if they’re serious about reducing mass incarceration and unnecessary government surveillance, they should introduce legislation that allows people on probation to earn a reduction in probation time for good behavior so that entire swaths of people aren’t spending the majority of their adult lives on probation as I did.

Prior related posts:

November 27, 2018 in Celebrity sentencings, Procedure and Proof at Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Sunday, November 25, 2018

"Paroling elderly inmates is humane solution to costly mass incarceration"

The title of this post is the headline of this new Hill commentary authored by Marc Schindler. Here are excerpts:

[G]rowth in long prison sentences has done little to improve public safety, with states that have reduced incarceration levels experiencing larger drops in crime than states that continue to incarcerate people at very high rates.  But it has contributed to a rapidly expanding population of incarcerated elderly people, so that our prisons now essentially function as expensive yet inhumane nursing homes.  In 1993, there were 45,000 incarcerated individuals over 50 years old; with the continuous growth, it is estimated that number will reach 400,000 by 2030.

For policymakers to significantly reduce the growing and costly prison population, strategies must include reform to long sentences for violent crimes.  Focusing reforms on reducing incarceration of geriatric people is an effective way to safely reduce the prison population.  Research indicates they are the least likely to pose a risk to public safety; criminal behavior typically peaks at 17 years old and then drops as an individual develops into adulthood.  While many states, such as California, Texas and New York, have expanded geriatric parole eligibility, it is infrequently used.

A naturally-occurring experiment, just a few miles from the nation’s capital, provides a roadmap for this strategy to safely reduce incarceration, create a more humane justice system and save significant taxpayer dollars.  A landmark court ruling — Unger v. Maryland — and the opportunities it created, offer powerful lessons for policymakers and stakeholders in tackling mass incarceration.  The 2012 case, centered on remedying improper jury instructions, applied to a cohort of 235 people sentenced prior to 1981.  In the six years since the decision, 188 people have been released; at release, the average age of the Ungers was 64, and the average term served was 40 years....

In the six years since the decision, we have learned a number of important lessons, the most significant of which is that the Unger experience proves we can safely release people who have committed a serious, violent offense.  And since they’ve been home, the Ungers have been contributing to their communities; as volunteers and mentors they help keep us all safer by encouraging youths to avoid the mistakes they made when they were younger.

One of the things that make the Ungers unique is that, thanks to an investment by the Open Society Institute-Baltimore, they received specialized reentry programming before and after release.  With that individualized support, the Ungers have had a less than 3 percent recidivism rate, a fraction of the Maryland rate of 40 percent.  This support is a significant advance over what most people receive and should be a model for governments across the country to replicate.

The Ungers were primarily convicted of homicide and rape, yet they have safely returned to the community. Too often we fail to take into consideration a research-based assessment of the risk of reoffending when making release decisions.  It is time to reconsider parole policies and assessment tools that disregard rehabilitation and continue to keep people locked up based solely on the severity of their underlying offense.

Imposing extremely long sentences, alongside low rates of parole, serves political motivations, not increased public safety.  By pivoting away from a parole approach focused solely on the crime committed, to one that assesses the current risk of re-offending and provides tailored re-entry services, states can safely reduce their prison population, save taxpayer money and create a fairer and more effective justice system in the process.  There are hundreds of thousands of geriatric-aged individuals in prisons across the country, many with the same profile as the Ungers.  Maryland alone could save over $100 million in the first year by reducing its low-risk geriatric population.

This commentary builds off this recent report by the Justice Policy Institute titled "The Ungers, 5 Years and Counting: A Case Study in Safely Reducing Long Prison Terms and Saving Taxpayer Dollars."

November 25, 2018 in Offender Characteristics, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (2)

Friday, November 16, 2018

"Reentry Matters: Strategies and Successes of Second Chance Act Grantees"

The title of this post is the title of this new publication from the National Reentry Resource Center and the CSG Justice Center. This webpage provides this summary and additional related materials:

The National Reentry Resource Center and the CSG Justice Center released a new edition of Reentry Matters: Strategies and Successes of Second Chance Act Grantees in celebration of the 10th anniversary of the Second Chance Act (SCA).  Enacted with bipartisan support, SCA helps state, local, and tribal governments and nonprofit organizations in their work to reduce recidivism and improve outcomes among people who have been in the criminal justice system.  Since its passage 10 years ago, SCA has supported more than 900 grants for adult and youth reentry programs, as well as systemwide improvements to help jurisdictions better address the needs of people who are incarcerated.  Featuring 21 stories from programs across 19 states, Reentry Matters profiles the impact of SCA grant-funded programs through both the practitioners who run them and the people who are impacted by them.

For analysis of the most up-to-date recidivism data in 11 states, read Reducing Recidivism: States Deliver Results, which profiles states showing significant declines in their three-year return-to-prison rates and details how SCA grant awards have helped the 11 featured states to test recidivism-reduction strategies, invest in evidence-based practices, and increase the capacity and scale of programs.

Related materials

November 16, 2018 in Reentry and community supervision | Permalink | Comments (0)

News and notes from the front lines of the debate over the FIRST STEP Act

The decision by President Donald Trump to support the FIRST STEP Act, discussed here and here, was a critical necessary development for the law to have a chance to passage.  But it was not alone sufficient to ensure the bill even gets a vote, especially as there is talk of Senate Majority Leader Mitch McConnell still being less than eager to advance the bill to the Senate floor.  Various political players and possible ups-and-downs surrounding the bill are well covered in these new articles from the New York TimesPolitico and the Washington Post:

I want so very, very badly to be optimistic about the prospects for the FIRST STEP Act, in any form, to become law very, very soon.  But the pessimistic bet has been a winning one on the federal statutory criminal justice reform front for the last eight years, as politics and gridlock have trumped effective policy advancement.  One would hope that, in a properly functioning democracy, a bill with the support of the President and probably close to 90% of all members of Congress could and would become law.  But I am fearful that these reality may still not be enough to get the FIRST STEP Act into law.  Time will tell (and likely in the next few weeks).

UPDATE Here are some more discouraging headlines and stories for those who may have become unduly optimistic after Prez Trump's endorsement:

November 16, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Wednesday, November 14, 2018

"The Second Chances Gap"

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

Over the last decade, dozens of states have enacted “second chance” reforms that increase the eligibility of individuals charged or convicted of crimes to, upon application, shorten or downgrade their past convictions, clean their criminal records, and/or regain the right to vote.  While much fanfare has accompanied the increasing availability of “second chances,” less is known about their uptake.

This study introduces the concept of the “second chance gap” — the gap between eligibility for and award of certain forms of second chance relief, and sizes it in connection with several initiatives (Obama’s Clemency Initiative, California’s Propositions 47 and 64, and Maryland and Pennsylvania records clearing provisions).  It finds approximate uptake rates to be low (less than 20% in most cases) suggesting that among the studied initiatives, the majority of second chances have been missed chances, apparently due to administrative factors like low awareness and high-cost, high-friction application processes and backlog.

To narrow second chance gaps and unlock opportunities and equal access to benefits for individuals with criminal histories, this Essay argues, policymakers should embrace automation, burden-shifting, centralization, and consistency in the implementation of second chance laws.  Ensuring that the design and administration of second chance laws reflect their intent can help remove the red tape, not steel bars, that stand in the way of second chances.

November 14, 2018 in Collateral consequences, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (0)

Monday, November 12, 2018

Latest push for passage of FIRST STEP Act with sentencing reforms now afoot

The New York Times and CNN are reporting this evening on the latest chapter in efforts to enact significant federal criminal justice reforms.  This lengthy New York Times piece is headlined "Bipartisan Sentencing Overhaul Moves Forward, but Rests on Trump," and here are excerpts:

A bipartisan group of senators has reached a tentative deal on the most substantial rewrite of the nation’s sentencing and prison laws in a generation, giving judges more latitude to sidestep mandatory minimum sentences and easing drug sentences that have incarcerated African-Americans at much higher rates than white offenders.  The lawmakers believe they can get the measure to President Trump during the final weeks of the year, if the president embraces it.

The compromise would eliminate the so-called stacking regulation that makes it a federal crime to possess a firearm while committing another crime, like a drug offense; expand the “drug safety valve” allowing judges to sidestep mandatory minimums for nonviolent drug offenders; and shorten mandatory minimum sentences for nonviolent drug offenders, according to draft text of the bill obtained by The New York Times.

It would also retroactively extend a reduction in the sentencing disparity between crack and powder cocaine signed into law in 2010, potentially affecting thousands of drug offenders serving lengthy sentences....

The support of the famously mercurial Mr. Trump is by no means guaranteed.  But if they can secure an endorsement, senators say they can move quickly on the kind of bipartisan achievement that has eluded Mr. Trump — and bedeviled senators and outside advocates of the overhaul for years....

If Mr. Trump supports the package, senators will still be up against a rapidly closing legislative window — Congress is set to break in mid-December — and certain opposition from conservative Republicans in both the Senate and the House. Democrats could also throw up roadblocks if liberals think they could get a better deal once Democrats take control of the House....

Lawmakers may have also gotten a boost with the departure of Jeff Sessions as attorney general last week. Mr. Sessions had used his post to order federal prosecutors to pursue the toughest possible charges and sentences for crime suspects, reversing Obama-era efforts to ease such penalties for some nonviolent drug offenders.  And he vigorously opposed legislative compromise, going head-to-head not only with Mr. Grassley but also with Mr. Kushner.

Mr. Kushner has had several meetings with Matthew G. Whitaker, the new acting attorney general, who has signaled that he is open to the changes.  The effort could be revived in the next Congress if he and allies are unable to succeed in the short term. Mr. Kushner has also traveled with Vice President Mike Pence in recent days to brief the vice president on the latest developments, the administration official said.

This CNN report is headlined "Senators, Kushner prepare to launch sentencing overhaul push in lame duck session," and starts and ends this way:

White House officials and a bipartisan group of senators are mounting an ambitious effort to push criminal justice legislation through Congress by the end of the year, four sources close to the process told CNN.

But first, Jared Kushner, President Donald Trump's son-in-law and senior adviser, who has been leading the White House's prison and sentencing overhaul push, must ensure the President is on board with the latest version of the measure.  Kushner is slated to meet with Trump on Tuesday to press him to back the legislation, a senior administration official said....

One person close to the matter said that while the prospects for the measure several weeks ago seemed glum, its odds of passing now are above 50%.  The White House and Republican leaders on Capitol Hill agreed in August to postpone the legislation until after the midterm elections.

One source close to the process said that after the midterms -- which will bring shifting partisan dynamics to Congress in January -- White House officials working on the effort recognized they needed to move forward now.  "It's the lame duck or never strategy," one source close to the process said.

November 12, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Friday, November 02, 2018

"The Biased Algorithm: Evidence of Disparate Impact on Hispanics"

The title of this post is the title of this new article available via SSRN authored by Melissa Hamilton.  Here is its abstract:

Algorithmic risk assessment holds the promise of reducing mass incarceration while remaining conscious of public safety.  Yet presumptions of transparent and fair algorithms may be unwarranted. Critics warn that algorithmic risk assessment may exacerbate inequalities in the criminal justice system’s treatment of minorities.  Further, calls for third party auditing contend that studies may reveal disparities in how risk assessment tools classify minorities. A recent audit found a popular risk tool overpredicted for Blacks.

An equally important minority group deserving of study is Hispanics.  The study reported herein examines the risk outcomes of a widely used algorithmic risk tool using a large dataset with a two-year followup period. Results reveal cumulative evidence of (a) differential validity and prediction between Hispanics and non-Hispanics and (b) algorithmic unfairness and disparate impact in overestimating the general and violent recidivism of Hispanics. 

November 2, 2018 in Procedure and Proof at Sentencing, Race, Class, and Gender, Reentry and community supervision | Permalink | Comments (0)

Thursday, November 01, 2018

Pew reports on persons on probation or parole in US

The folks at Pew have this new posting titled in full "1 in 55 U.S. Adults Is on Probation or Parole: Better strategies can cut that rate while protecting public safety, decreasing drug misuse, and reducing incarceration." Here is how the posting gets started:

More than a decade ago, policymakers around the country seeking to protect public safety, improve accountability, and save taxpayer dollars initiated a wave of bipartisan reforms that has reduced the number of people behind bars in many states. Because of their high costs and visibility, prisons garnered substantial public attention on criminal justice, while relatively little was paid to the largest part of the correctional system: community supervision.

Probation and parole populations grew 239 percent from 1980 to 2016, and with that came a dramatic rise in the per capita rate of community supervision, which was 1 in 55 U.S. adults — nearly 2 percent — in 2016.  Although the community corrections population declined 11 percent since its all-time peak in 2007, it is still twice the size of the population incarcerated in state and federal prisons and local jails, combined. Notably, supervision rates vary considerably by state, from 1 in 18 in Georgia to 1 in 168 in New Hampshire, reflecting the difference in practices and policies across the nation.

This massive scale has too often prevented the community supervision system from effectively delivering on its mission to promote public safety through behavioral change and accountability.  Although about half of the roughly 2.3 million people who complete their probation and parole terms each year do so successfully, nearly a third fail for a range of reasons, and almost 350,000 of those individuals return to jail or prison, often for violating the rules rather than committing new crimes.

November 1, 2018 in Criminal Sentences Alternatives, Data on sentencing, Detailed sentencing data, Reentry and community supervision | Permalink | Comments (0)

Friday, October 26, 2018

Supreme Court grants cert on Haymond from Tenth Circuit to address when Apprendi and Alleyne meet suprevised release!!

I am excited to report that the Supreme Court this afternoon, via this order list, added an interesting sentencing case to its docket by granting cert in United States v. Haymond, 17-1672, a case from the Tenth Circuit in which the defendant prevailed on the claim that the procedures used to sentence him following his supervised release violation was unconstitutional.  The Tenth Circuit opinion below in Haymond is available at this link, and the federal government's cert petition posed this "Question Presented":

Whether the court of appeals erred in holding “unconstitutional and unenforceable” the portions of 18 U.S.C. 3583(k) that required the district court to revoke respondent’s ten-year term of supervised release, and to impose five years of reimprisonment, following its finding by a preponderance of the evidence that respondent violated the conditions of his release by knowingly possessing child pornography. 

Seeking (unsuccessfully) to avoid a cert grant, the defendant's brief in opposition to cert framed the issue of the case this way: 

Following his conviction for possession of child pornography, a Class C felony that carried a statutory sentencing range of zero to ten years, a district court judge in a revocation hearing specifically found by only a preponderance of the evidence that Andre Haymond had violated the terms of his supervised release by committing a “second sex offense” as set forth in 18 U.S.C. 3583(k).  The statute required the district court to impose a sentence of not less than five years up to life in prison for commission of the new crime, rather than the zero to two-year statutory range ordinarily applicable for revocation in Class C felony cases.  Did the enhanced sentencing range carrying a mandatory minimum sentence in the revocation proceeding violate the Court’s longstanding jurisprudence guaranteeing a defendant charged with a serious criminal offense to a right to a jury trial under the Fifth and Sixth Amendments?

Given that there are now only two members of the Supreme Court who are generally hostile to Apprendi rights under the Fifth and Sixth Amendment (Justices Alito and Breyer), I do not think it is a given that this grant of cert means that the Justices are eager to reverse the ruling below. But we really do not know just how far any of the other Justices, and especially the new guys Gorsuch and Kavanaugh, are willing to take the Fifth and Sixth Amendment in the sentencing universe, and so I am disinclined to make any predictions on any votes at this point (save for expected Justice Alito to be his usual vote against a criminal defendant).

October 26, 2018 in Blakely in the Supreme Court, Procedure and Proof at Sentencing, Reentry and community supervision, Sex Offender Sentencing, Who Sentences | Permalink | Comments (6)

Thursday, October 25, 2018

"How Jeff Sessions Is Undermining Trump’s Prison Reform Agenda"

The title of this post is the headline of this new lengthy Marshall Project piece.  I recommend the piece in full, and here are excerpts from just the first part of the article: 

In federal penitentiaries across the nation, prisoners eagerly awaiting a transfer to halfway houses say they are being told that they will have to wait weeks or months longer than they had anticipated because there is a shortage of beds at the transitional group homes.  But that’s not true.

According to inmates, halfway house staff and industry officials, scores of beds lie empty, with some estimates of at least 1,000 vacant spaces.  They remain unused due to a series of decisions that have sharply reduced the number of prisoners sent to halfway houses.  And home confinement, a federal arrangement similar to house arrest that allows prisoners to complete their sentences with minimal supervision, is being even more drastically curtailed.

The Bureau of Prisons says it is curbing overspending of past years and streamlining operations, but that doesn’t make sense.  Putting inmates in halfway houses or on home confinement is much cheaper than imprisonment.  The federal government spent almost $36,300 a year to imprison an inmate, $4,000 more compared with the cost to place a person in a halfway house in 2017, according to the Federal Register.  It costs $4,392 a year to monitor someone on home confinement, according to a 2016 report by the Administrative Office of the U.S. Courts.

Abandoning transitional supervision aligns with Attorney General Jeff Sessions’ disputed opinion that reduced prison populations during the Obama administration are to blame for a small uptick in violent crime.  As a senator from Alabama, Sessions led the charge two years ago against a bill to ease sentences, and as attorney general he has instructed prosecutors to be more aggressive in charging defendants.  But his draconian ideas are undermining his own boss’ stated preference for early release and rehabilitation programs....

And now there is evidence the Bureau of Prisons, under Sessions’ direction, is actively discouraging the use of transitional supervision even under existing rules.  The Bureau of Prisons declined interviews and would not answer specific questions, but said in a statement that the “fiscal environment” prompted a thorough review of programs, which led to ways to “most effectively use our resources.”  The agency said placements are based on each prisoner’s needs, the prison system’s ability to meet them, public safety “and the need for the BOP to manage the inmate population in a responsible manner.”...

Sen. Dick Durbin, Democrat of Illinois, who leads bipartisan efforts to reshape sentencing laws and prisoner rehabilitation, said the Justice Department had not explained to Congress the cutback in inmate transfers to transitional housing.  “Attorney General Sessions has reversed key prison reforms like reducing the use of restricted housing and private prisons and improving education opportunities and reentry services,” Durbin said in a statement.  “It makes no sense to eliminate reforms that are proven to reduce recidivism and make our communities safer.”

Since the 1960s, halfway houses have provided federal prisoners a running start before release to find work, which has been shown to help people stay crime-free longer.  A Pennsylvania state study found connections between higher rearrest rates and stints in halfway houses, while federal violations, violence and overdoses have contributed to poor public perception of the facilities.  But prisoners and their advocates say moving into a transitional residence gives inmates an incentive to avoid trouble in prison and join rehabilitative programs.

Under the Obama administration, the number of federal prisoners in halfway houses and other transitional programs boomed.  The federal government required the privately-run residences to provide mental health and substance abuse treatment, and the Department of Justice also increased access to ankle monitors so more prisoners could finish sentences in their own homes.  At the peak in 2015, more than 10,600 prisoners resided in federal halfway houses. The number of inmates in home confinement — 4,600 — was up more than a third from the year before. In all, one in 14 of the people under Bureau of Prisons supervision was living at home or in a halfway house. Since then, the population in halfway houses has dropped by 28 percent to 7,670. Home confinement is in freefall, down 61 percent to a population of 1,822.  The majority of that cut has come in just the past year. Now only one in 20 people under federal supervision is in transitional housing....

Judge Ricardo S. Martinez, who chairs the Committee on Criminal Law of the Judicial Conference of the United States, which helps write policies and guidelines for federal courts, said “we are also in the dark about those numbers.”  He said the committee is working to establish better communication with the Bureau of Prisons.  Federal judges, who can sentence defendants to halfway houses, need to know how much space is available.  Rough estimates based on the current population in halfway houses, internal memos, statements from prison officials and prison records put the number of vacant beds in the federal system anywhere from 1,000 to several times that number.  Swaths of beds lie empty even after the prison system ended contracts with 16 of its nearly 230 halfway houses, facilities described as “underutilized or serving a small population.”  Martinez, whose committee has pushed for placing more prisoners on home confinement, said that advances in tracking technology and risk assessments should alleviate public safety concerns.  “It’s a stupid waste of taxpayer money to put people in a confinement level they don’t need to be in,” the judge said.

October 25, 2018 in Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

Wednesday, October 17, 2018

"Expanding the Vote: Two Decades of Felony Disenfranchisement Reform"

The title of this post is the title of this new report by The Sentencing Project.  Here is its "Overview":

More than 6 million citizens will be ineligible to vote in the midterm elections in November 2018 because of a felony conviction.  Nearly 4.7 million of them are not incarcerated but live in one of 34 states that prohibit voting by people on probation, parole, or who have completed their sentence.  Racial disparities in the criminal justice system also translate into higher rates of disenfranchisement in communities of color, resulting in one of every thirteen African American adults being ineligible to vote.

Despite these stark statistics, in recent years significant reforms in felony disenfranchisement policies have been achieved at the state level.  Since 1997, 23 states have amended their felony disenfranchisement policies in an effort to reduce their restrictiveness and expand voter eligibility. 

These reforms include:

• Seven states either repealed or amended lifetime disenfranchisement laws

• Six states expanded voting rights to some or all persons under community supervision

• Seventeen states eased the restoration process for persons seeking to have their right to vote restored after completing sentence 1.4 million people have regained the right to vote as a result of felony disenfranchisement reforms

These policy changes represent national momentum for reform of restrictive voting rights laws.  As a result of the reforms achieved during the period from 1997-2018, an estimated 1.4 million people have regained the right to vote.

This report provides a state by state accounting of the changes to voting rights for people with felony convictions and measures its impact.  These changes have come about through various mechanisms, including legislative reform, executive action, and a ballot initiative.

October 17, 2018 in Collateral consequences, Reentry and community supervision | Permalink | Comments (0)

Monday, October 08, 2018

Highlighting efforts by some prosecutors to help with expungements

Today's New York Times has this notable new article under the headline "Convicts Seeking to Clear Their Records Find More Prosecutors Willing to Help." Here are excerpts:

[A]lthough law enforcement officials have traditionally opposed [broadened expungement and sealing laws] for an array of reasons — including accountability, a belief that records are vital to public safety, and unstinting support for crime victims — a growing number of them have begun to recognize that criminal records can be enduring obstacles to self-sufficiency and even help trap people in cycles of crime.  Increasingly, they are overtly endorsing mercy through record suppression.

“It’s just a matter of trying to remove obstacles that would make it more difficult for someone to become a productive member of the community,” said Terry Curry, the elected prosecutor in Marion County, which includes Indianapolis and has a population approaching 1 million residents.  “If an individual has stayed out of the criminal justice system, then why should they continue to have that stain forever?”

Though in most places the paperwork burden for expungements has fallen on private lawyers and nonprofit legal clinics, South Florida prosecutors now routinely hold events intended to help people wipe away records of arrests but not convictions.  A district attorney in rural Louisiana leads information sessions about expungements for some felony convictions after a 10-year waiting period; a Vermont prosecutor recently held a record-clearing clinic; and the authorities near Fort Bragg, N.C., attracted about 500 people to an expungement event last year.  Last month, the Brooklyn district attorney promoted “Begin Again” events, where, one advertisement said, people were invited to “clear your record of a misdemeanor marijuana conviction or warrant.”

But there is still a national patchwork of policies and terminologies, from destroying records to sealing them to simply noting that a conviction is effectively vacated. States have imposed various waiting periods, conditions and fees.  Some places have made their processes deliberately simple, while others have complicated approaches that may require legal assistance or court hearings.

The proliferation of new laws, and newfound enthusiasm on the part of some prosecutors, has hardly erased all doubts about the wisdom of suppressing records.  Many prosecutors, especially in rural areas, remain skeptical of any action to show mercy for a person’s past, and some judges engage in measured resistance, holding hearings more to complain about an expungement law than to weigh an application’s merits.  “You have prosecutors and judges who just think it’s wrong: ‘You’ve caused trouble in this county, you’re a wrongdoer and you shouldn’t get a blank slate,’” said Bernice Corley, the executive director of the Indiana Public Defender Council.

But Margaret Love, the executive director of the Collateral Consequences Resource Center and a former United States pardon attorney, said that clemency and expungements are part of the criminal justice process for a reason.  “It ought to be something that prosecutors welcome and use to their advantage to create criminal justice success stories, to advertise criminal justice success stories,” she said.

The nuanced approach in Indiana, where officials hoped that expungements would improve people’s job prospects, is increasingly seen as a model.  Under its so-called Second Chance law, the state has a tiered system in which the offense, and the outcome of the case, determines the waiting period and the exact relief.  Indiana does not destroy records, but can limit access to them and mark them as expunged, and crime victims are permitted to express their views before any decision is made.  “Indiana should be the worst place in America to commit a serious crime and the best place, once you’ve done your time, to get a second chance,” Gov. Mike Pence, now the vice president, said when he signed the records measure into law in 2013.

I am glad to see this topic garner the attention of the Times, though I am a bit disappointed not to see any mention of the particularly notable marijuana-reform developments on this front. Specifically, as I discussed briefly in this recent paper for the Federal Sentencing Reporter, a number of prosecutors in California began taking proactive steps to clear prior marijuana convictions after the state enacted marijuana legalization in 2016.  

October 8, 2018 in Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Highlighting the importance of policies that support families values for the incarcerated

The group R Street has this notable new policy paper titled "The importance of supporting family connections to ensure successful re-entry" authored by Emily Mooney and Nila Bala.  Here is the paper's introduction and conclusion:

As of the latest estimates, approximately two million individuals are currently incarcerated in the United States. Each of these has a family, which broadens the impact of incarceration to millions of family members across the nation. This brings negative repercussions: incarcerated parents are separated from children, interpersonal relationships become strained and financial support disappears.  Furthermore, federal, state and local policies often present barriers to meaningful and continued family connections while incarcerated. Yet, paradoxically, it is during this time that positive family connections are so key.  Indeed, they are critical to successful re-entry after a person’s time is served, as they help encourage individual transformation, mitigate the negative impact of incarceration on children and other loved ones, and support stronger families in general.  This, in turn, makes communities safer.  For these reasons, society can benefit by understanding the importance of these connections and creating policies that help to bolster them for the good of incarcerated individuals, their families and their communities at large....

Behind most incarcerated individuals is a family that is critical to encouraging positive change on the inside and supporting them as they prepare for life on the outside.  Despite this, government policies and family circumstances often impede the ability of families to stay connected during incarceration.  However, changes to government policies, community-based partnerships and the expansion of family-oriented programming can help families overcome these obstacles, with great benefit both to individuals and to society as a whole.

October 8, 2018 in Offender Characteristics, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (1)

Thursday, October 04, 2018

Excited to hear Shon Hopwood speak about earned prison credit as Ohio considers ballot initiative known now as Issue 1

For months I have been flagged here and elsewhere the interesting and intricate drug sentencing and prison reform initiative on the November 2018 ballot here in Ohio.  Originally called the "Neighborhood Safety, Drug Treatment and Rehabilitation Amendment," the initiative now is just known within Ohio as Issue 1.   With early voting in Ohio now just days away, the new Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law has its latest Issue 1 program  taking place today. 

Specifically, at the College of Law at 12noon, is the second of our five public panels under the title Ballot Insights.  (Registration for these panels is available at this link, where you can also find more details on the focus for each of the panels.)  Today's panel is focused on the Issue 1 provisions expanding "earned time credit" for Ohio prisoners to reduce their sentences through rehabilitative programming, and we have the pleasure of hosting Shon Hopwood as one of the panelists. 

In addition to the panels, DEPC has also created a Resources Page for Issue 1, which includes links to the ballot language, position statements from various groups and select media coverage.  DEPC is also building out a Commentary Page on Issue 1 for publishing original commentary that the Center has solicited. 

 Prior related posts:

October 4, 2018 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Tuesday, September 25, 2018

New Pew issue brief reviews probation and parole in the US

The folks at Pew have this interesting new Issue Brief titled "Probation and Parole Systems Marked by High Stakes, Missed Opportunities: 1 in 55 adults is under community supervision." Here are excerpts from its "Overview":

Incarceration has long dominated the national conversation on criminal justice, because the U.S. prison population skyrocketed between the 1980s and late 2000s.  Starting in 2007, policymakers seeking to protect public safety, improve accountability, and save taxpayer dollars initiated a wave of bipartisan reforms that has reduced the number of people behind bars in many states.  Yet this movement has largely overlooked the largest part of the correctional system: community supervision.

Nationwide, 4.5 million people are on probation or parole—twice the incarcerated population, including those in state and federal prisons and local jails.  The growth and size of the supervised population has undermined the ability of local and state community corrections agencies to carry out their basic responsibilities to provide the best public safety return on investment as well as a measure of accountability.  Although research has identified effective supervision and treatment strategies, the system is too overloaded to implement them, so it sends large numbers of probationers and parolees back to prison for new crimes or for failure to follow the rules.

As part of a collaborative effort to improve the nation’s community corrections system, The Pew Charitable Trusts and the Laura and John Arnold Foundation analyzed the leading research and identified the most pressing problems and some promising solutions.  The available data leave many questions unanswered, but this review reveals key insights and challenges many assumptions about supervision.  Among the findings:

Community corrections is marked by considerable growth and scale, disproportionate representation of men and people of color, and a majority of people who committed nonviolent offenses....

Improvements in supervision offer opportunities to enhance public safety, decrease drug misuse, and reduce incarceration....

Policy changes can reduce correctional control and improve public safety.

These findings demonstrate the need for greater scrutiny of the community corrections system by policymakers and the public.  They also reinforce an emerging consensus among leading practitioners for a fundamental change in the vision and mission of supervision: from punishing failure to promoting success.

September 25, 2018 in Criminal Sentences Alternatives, Data on sentencing, Reentry and community supervision | Permalink | Comments (0)

Monday, September 24, 2018

"Extending 'Dignity Takings': Re-Conceptualizing the Damage Caused by Criminal History and Ex-Offender Status

The title of this post is the title of this new paper authored by Jamila Jefferson-Jones now available via SSRN. Here is the abstract:

The consequences of a criminal conviction extend far beyond “time served”: Ex-offenders often face social and civil stigmas and disabilities that continue for the rest of their lives.  These collateral consequences cause real harm to the reputation, dignity, and livelihood that can be difficult to quantify in the strictly economic analysis used in traditional constitutional takings analysis.  These collateral consequences are a form of dignity taking which deprive the ex-offender of their status as a full member of society.  Bernadette Atuahene originated the idea of “dignity takings”, eventually settling on a definition that combines a traditional government taking of property with an outcome of dehumanization or infantilization.  Scholars have applied this analysis to a number of cases of tangible property, but have only just begun to expand it into the criminal justice and reputational harm cases.

By applying the framework of dignity takings to the difficulties faced by ex-offenders in their reentry to society, I will demonstrate how we can better express the harms caused by the collateral consequences of conviction.  By doing so, we can focus our attention not on economic damage and restitution, but the restoration of lost dignity and humanity.

September 24, 2018 in Collateral consequences, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (3)

Wednesday, September 12, 2018

"Misdemeanor Records and Employment Outcomes: An Experimental Study"

The title of this post is the title of this new empirical research available via SSRN and authored by Peter Leasure. Here is its abstract:

Objectives:  This study examined whether misdemeanor drug convictions impact entry-level employment outcomes.

Methods:  A multifactor between subjects correspondence design was used whereby fictitious resumes are sent to employers.  Resumes were randomly assigned to one of three groups: no criminal record, one-year-old misdemeanor record, and a one-year-old felony record.  Resumes were also randomly assigned with a distinctively White or African American name. Job type was used as an additional predictor.

Results:  Results indicate that a misdemeanor conviction significantly hinders early employment outcomes for both African American and White applicants.  However, results did not show statistically significant differences in callbacks between races.

Conclusions:  These results should be utilized to better inform defendants, practitioners, and policy-makers on the negative impacts of low-level convictions.

September 12, 2018 in Collateral consequences, Reentry and community supervision | Permalink | Comments (0)

Tuesday, September 11, 2018

"Digital Expungement"

The title of this post is the title of this paper I just saw on SSRN authored by Eldar Haber.  Here is its abstract:

Digital technology might lead to the extinction of criminal rehabilitation.  In the digital era, criminal history records that were expunged by the state remain widely available through commercial vendors (data brokers) who sell this information to interested parties, or simply through a basic search of the Internet.  The wide availability of information on expunged criminal history records increases the collateral consequences a criminal record entails, thereby eliminating the possibility of reintegration into society. Acknowledging the social importance of rehabilitation, policymakers attempted to regulate the practices of data brokers by imposing various legal obligations and restrictions, usually relating to the nature and accuracy of criminal records and the purposes for which they may be used.  These regulations have been proven insufficient to ensure rehabilitation. But regardless of future outcomes of such regulatory attempts, policymakers have largely overlooked the risks of the Internet to expungement.  Many online service providers and hosting services enable the wide dissemination and accessibility of criminal history records that were expunged.  Legal research websites, websites that publish booking photographs taken during an investigation (mugshots), social media platforms, and media archives all offer access to expunged criminal histories, many times without charge, and all with the simple use of a search engine. Without legal intervention, rehabilitation in the digital age in the U.S. has become nearly impossible.

This Article offers a legal framework for reducing the collateral consequences of expunged criminal records by offering to re-conceptualize the public nature of criminal records. It proceeds as follows.  After an introduction, Part II examines rehabilitation and expungement as facets of criminal law.  Part III explores the challenges of digital technology to rehabilitation measures.  Part IV evaluates and discusses potential ex-ante and ex-post measures that could potentially enable rehabilitation in the digital age.  It argues that while ex-post measures are both unconstitutional and unrealistic for enabling digital expungement, ex-ante measures could be a viable solution.  Accordingly, this Article suggests implanting a graduated approach towards the public nature of criminal history records, which would be narrowly tailored to serve the interests of rehabilitation-by-expungement. Finally, the last Part concludes the discussion and warns against reluctance in regulating expunged criminal histories.

September 11, 2018 in Collateral consequences, Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Reentry and community supervision, Technocorrections | Permalink | Comments (0)

Monday, September 10, 2018

Events and resources covering Ohio sentencing and prison reform ballot initiative known now as Issue 1

Depc_testA few months ago, I flagged here the interesting and intricate drug sentencing and prison reform initiative headed for the November 2018 ballot here in Ohio.  Originally called the "Neighborhood Safety, Drug Treatment and Rehabilitation Amendment," the initiative now is just known within Ohio as Issue 1.   With early voting in Ohio now just a month away and Election Day 2018 not much more than 50 days away, the new Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law has a lot of Issue 1 programming about to begin and has a lot of resources already assembled on its website.

This Thursday, September 13 at 12noon, starts a series five public panels under the title Ballot Insights.  Registration for these panels is available at this link, where you can also find more details on scheduled speakers and on which aspects of the Issue 1 will be the focus for particular panels (e.g., a first panel in October is focused on the Issue 1 provisions expanding "earned time credit" for Ohio prisoners to reduce their sentences through rehabilitative programming; a second panel in October looks at how to ensure any increased funding for drug treatment is utilized effectively). 

I have the pleasure of moderating the first Issue 1 panel this coming Thursday, which is titled simply "Neighborhood Safety, Drug Treatment and Rehabilitation Amendment: Step in the Right Direction."  This panel will include a leading proponent of Issue 1 (Steven JohnsonGrove of the Ohio Justice & Policy Center), a leading opponent of Issue 1 (Louis Tobin of the Ohio Prosecuting Attorneys Association), and a leading Ohio criminal justice reform expert (Daniel Dew of The Buckeye Institute).  The bios of the presenters are detailed at this link.

In addition to all the panels, DEPC has also created a Resources Page for Issue 1, which includes links to the ballot language, position statements from various groups and select media coverage.  DEPC is also building out a Commentary Page on Issue 1 for publishing original commentary that the Center has solicited. (A pair of public health scholars submitted this first commentary for publication on the DEPC site.)

 Prior related posts:

September 10, 2018 in Criminal Sentences Alternatives, Drug Offense Sentencing, Elections and sentencing issues in political debates, Prisons and prisoners, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, September 04, 2018

Former Enron CEO Jeff Skilling completes his time in federal prison

The name Jeff Skilling still stirs up a lot of sentencing thoughts for me because, 15 years ago, he was portrayed as one of the "worst-of-the-worst" white-collar offenders and he was one of the first very high-profile white-collar defendants to be sentenced after Booker made the guidelines advisory.  Consequently, this new article caught my eye under the headline "Former Enron CEO Jeff Skilling released from prison and sent to a halfway house." Here are the particulars and context:

Jeffrey K. Skilling, the former Enron CEO sentenced to a long prison term for his role in one of most notorious corporate fraud cases in history, was recently released from a minimum security federal prison camp in Alabama to a halfway house at an undisclosed location.

Enron's spectacular collapse cost investors billions of dollars and wiped out the retirement savings — not to mention the jobs — of thousands of employees.  Skilling, 64, was convicted of 12 counts of securities fraud, five counts of making false statements to auditors, one count of insider trading and one count of conspiracy in 2006 for his role in hiding debt and orchestrating a web of financial fraud that ended in the Houston company's bankruptcy.

He was sentenced to 24 years in prison and fined $45 million, the harshest sentence of any former Enron executive.  Five years ago, Skilling's sentence was reduced to 14 years by U.S. District Judge Sim Lake.  He is scheduled to be released Feb. 21, 2019, according to the Bureau of Prisons.

Federal prisoners are often released from prison several months early to a halfway house, a highly restricted dormitory-like setting that helps inmates ease back into society. They must maintain curfews, find work and stay out of trouble.  A. Kelley, assistant residential re-entry manager for the Bureau of Prisons in San Antonio, said the bureau would not say where Skilling is living.

The Bureau of Prisons typically sends inmates to a halfway house in their home city where they resided before incarceration.  It helps them re-acclimate to a more normal life and re-establish relationships with their families, said Philip Hilder, a white-collar defense lawyer who represented Sherron Watkins, a former vice president at Enron who went to then-Enron chairman Kenneth Lay to warn him of accounting irregularities she discovered while reviewing Enron's assets.

Inmates are typically required to get a job while they're at a halfway house and to report regularly to the federal probation department for up to three years, Hilder said. Skilling's lawyer could not be reached for comment.

September 4, 2018 in Celebrity sentencings, Prisons and prisoners, Reentry and community supervision, White-collar sentencing | Permalink | Comments (1)

Thursday, August 30, 2018

Prison chief explains his "non-political approach" to sentencing and prison reforms

John Wetzel, who serves as chair of The Council of State Governments Justice Center, president of the Association of State Correctional Administrators and Secretary of Pennsylvania’s Department of Corrections, has this new Hill commentary under the headline "A non-political approach focused on what works is key to solving prison crisis."  I recommend the piece in full, and here are excerpts:

[W]hile criminal justice reform currently occupies the rarified airspace of being mutually appealing to both sides of the political spectrum at the macro level, there remains a split on whether sentencing reform — the front end of the criminal justice system — should be included as a component of the First Step Act.  As written, the legislation focuses solely on reforms to back end within the Federal Bureau of Prisons.

With the caveat that any improvements to the federal corrections system – even incremental improvements — should be welcomed with open arms, the factual answer is that to realize actual, quantifiable improvement, sentencing reform is essential. It’s easy and common to embrace the notion that recidivism reduction is a back end issue and one owned solely by corrections professionals like me.  This notion is dead wrong.

As a Republican appointed as Secretary of Corrections by a Republican governor (Tom Corbett) and who was asked to continue in the role by a Democratic governor (Tom Wolf), I would argue that good sentencing, and by extension, prison policy, can rise above party politics.

I believe the formula for recidivism reduction is this: Incarcerate the right people for the right amount of time and provide them with the programming they need that specifically addresses the criminogenic factors that led to them committing a crime and, finally, provide the individualized reentry support to start them on a path to good citizenship....

Governor Tom Wolf, in kicking off Pennsylvania’s most recent criminal justice reform initiative, exemplifies the outcomes measure: less crime, fewer victims.  Achieving that goal requires our system to make good decisions every step of the way — from who we incarcerate to how long, including what conditions we incarcerate them in through what supports we offer to restore them to society.

August 30, 2018 in Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (2)

Saturday, August 25, 2018

"Summonsing Criminal Desistance: Convicted Felons' Perspectives on Jury Service"

The title of this post is the title of this interesting paper authored by James Binnall recently posted to SSRN.  Here is its abstract:

This exploratory study is the first to examine how convicted felons view the jury process and their role in that process.  Data derived from interviews with former and prospective felon-jurors in Maine, the only US jurisdiction that does not restrict a convicted felon’s opportunity to serve as a juror, reveal that participants displayed an idealized view of jury service, stressing a commitment to serve conscientiously.  Additionally, inclusion in the jury process affirmed their transitions from “offenders” to “non-offenders.”  In response, participants exhibited a sense of particularized self-worth, emphasizing that negative experiences with the criminal justice system make one a more effective juror.  In sum, this study suggests that among convicted felons, inclusion in the jury process may prompt conformity with the “ideal juror” role, facilitate prosocial identity shifts by mitigating the “felon” label, and help former offenders to find personal value.

August 25, 2018 in Collateral consequences, Procedure and Proof at Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Friday, August 24, 2018

A true insider's reaction to Senator Cotton's commentary about federal criminal justice reform efforts

In prior posts here and here and here, I noted the commentary from Senator Tom Cotton attacking the federal criminal justice reform bills moving through Congress and some responses it has engendered.  Today I receive an email from the son of a federal prisoner who maintains this interesting blog with postings from his father.   The blog is worth checking out and it is titled "Blue Collar Criminal: 60-something small business owner.  Screwed by the DOJ.  Now I'm in prison.  These are my thoughts."

In addition to pointing me to this blog, the prisoner's son shared his father's response to the piece Senator Cotton wrote in the Wall Street Journal and gave me permission to reprint his father's writings here:

I write this response to Sen. Tom Cotton's editorial ("Reform the Prisons Without Going Soft on Crime") from within my 8 X 10' federal prison cell I share with another medicare-eligible inmate.  We agree that Cotton's essay should have been entitled - Reform the Prisons Without Doing a Damn Thing.

Cotton bases a lot of his assertions on statistics. In lieu of rebutting them, which would be a bit hard given my current lack of access to the internet, I have to settle on "inferior" data, which is the actual experience of actual prisoners whom I know, and find every bit as credible as anyone I knew on the "outside".  The specific ones I'm bouncing Cotton's preposterous claims off of, are guys with 10+ years of incarceration, and who have experienced a wide variety of federal prisons before working themselves down to the federal camp.  Though I've only been "down" one year, I find my bullsh*t detector is pretty reliable, and comes in handy when evaluating prison stories and reading editorials such as Cotton's.  Based on these findings, I not only doubt the factuality of the statistics he uses, I gravely mistrust the motives behind them.

I came here a big fan of Sen. Cotton's.  I first knew of him when he was a soldier, serving in Iraq, who was thought for awhile to be fictitious, due to the cognitive dissonance produced by the idea of a Harvard Univ./Harvard Law School grad being an infantry officer. I was very attuned to him, since my son was also in Iraq at the same time.  He also put his pen to good use in rebutting anti-war propaganda.  I was shocked, when my "adventure" with the DOJ brought me here, to find that Cotton, along with another of my conservative heroes - Sen. Jeff Sessions - were regarded as the mortal enemies of federal inmates, at least those who followed the progress of issues related to prison reform.  My move away from fanhood has been sealed by this editorial, which has impressed me that he's traded the tools of war for the tools of sophistry.

For starters, in Cotton's mind, we are all "criminals", a word he loves to repeat. One-size-fits-all.  Excuse my sensitivity, and I leave it to friends and family to defend my name, but many of these guys are as fine individuals as any I know, and were "productive, law-abiding citizens" until the feds came after them.  (If you find that hard to swallow, you might care to read Harvey Silverglate's 'Three Felonies A Day'.)

He calls the House bill "flawed", and to the extent that it tampers with mandatory minimum sentences, or gives judges more discretion, a prescription for a "jailbreak". Why is lengthening a sentence wise, but shortening some foolish?  Why is Cotton incapable of recognizing that prison populations are comprised of both truly dangerous, bad-guy criminals, and nonviolent, non-dangerous law-transgressors (including some who are truly and factually innocent)? Many of the guys I know in here would probably only "endanger communities" by cutting their neighbors lawn while they're on vacation.  (And I'm not here making a distinction between "white-collar" and "drug offenders".  I've learned that 'drug offender' is also not a one-size-fits-all category).

In his paragraph on the current "drug epidemic", he cites a number of statistics to justify mandatory minimum sentencing, but ends by essentially admitting those statistics might not be significant or prove his point.

His statements about how very little of recidivism is attributable to parole violation, does not purport with what I've seen nor the experience of my "experts".  Most of the guys in my unit who have prior convictions are here now because their parole officer caught them 'high'.  One guy here, a farm boy, had a prior drug felony, and "caught" an 8 year sentence for a felony firearms crime.  He was deer hunting in a tree stand, having lost his right to bear arms by virtue of being a drug felon. Cotton's statistic to prove that drug convictions lead to rearrests for murder and rape 77% of the time, strikes my fellow inmates as not only false, but weird, crazy scare tactics.

Cotton's cherry-picked example of a drug dealer, Wendell Callahan, who murdered his girlfriend and her daughters, is great for demagogic purposes, but irrelevant to the debate of shortening the eligible sentences of nonviolent felons.  This has to be weighed in a context that looks objectively at good outcomes as well as negative.  Keeping families apart, and depriving children of their fathers, when its not necessary for the public good, is a social evil; and this is what mandatory minimum sentences often do.  It leads to and insures that the next generation will likely repeat the mistakes of their parents.

Cotton attacks even the term "mass incarceration" on the strange basis that it couldn't possibly be big, since it could be bigger.  I would say simply, that whichever country incarcerates the highest percentage of it's citizenry deserves the title of "mass incarcerator".  This would be the United States.  One book I've read states that the U.S. incarcerates 6 to 12 times more than the following countries: Canada, U.K., France, Germany, Italy or Australia.  Yet Cotton thinks we don't lock up enough.

But it gets worse. Cotton writes that "virtually no one goes to federal prison for "low-level, nonviolent" drug offenses.  Even I, a relative newbie, know guys who are not only here for that, but have sentences exceeding 10 years.  He says those that are here for just that have only pleaded to that, though they actually committed more serious offenses. Baloney.  Here's how that goes - they commit a crime deserving 1 year (for example) and plead "down" to a 4 year sentence, because they're being threatened with a 12 year sentence.  My friends here can't believe that Cotton doesn't know this.

It's not unusual for the feds to concoct 20 charges, and settle for 2. It happens to everyone.  It happened to me.  They are extremely creative in their use of enhancements.  (If the real crime were so heinous, why would they settle for a much lighter sentence?)

And then this - "Presidential pardons are a much better instrument of justice than broad sentencing reductions." Puh-leeze! (I think this ridiculous statement was just a set-up for his snarky shot at Trump.)

Cotton dismisses fiscal conservatives who would hope to reduce the cost of the American prison system. "The costs," he says, "of crime ... far outweigh the downsides of putting serious criminals behind bars."  That all depends on what you consider to be "serious" criminals, and how you calculate the "downsides".  At my camp, the common consensus is that the average age here is 50+.  That includes quite a few in their 70s, and about 3 or 4 in their 80s. Maybe a dozen use canes.  The financial distress on families and the negative economic impact on communities would certainly be part of the calculation of the "downsides", as would unquantifiable costs such as the loss of adult children to care for aged and debilitated parents.  Certainly also there's a tremendous cost to communities who have lost key employees and employers, volunteers to non-profits, etc.  There's a 80 yr old oncologist/researcher who's here due to a financial transgression of a side company he was a partner to.

As to his closing assertion that "mandatory minimums .... work", there is a great body of research that would show otherwise.  I, for one, would love to see a poll taken of federal judges as to the truth of that statement.

Sen. Cotton ends his diatribe against prison reform, the kind that might actually reduce the prison population, with an affirmation of "faith-based and other antirecidivism programs".  I heartily concur, in fact, I wish everyone would embrace the teaching of the Bible. In it we read this great truth - "For judgment will be without mercy to anyone who has shown no mercy; mercy triumph over judgment." (James 2.13)

If that is deemed as soft on crime, we need to deeply consider where we are heading.

August 24, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (15)

Wednesday, August 22, 2018

"Felon-Jurors in Vacationland: A Field Study of Transformative Civic Engagement in Maine"

The title of this post is the title of this new article authored by James Binnall. Here is the abstract:

Maine is the only jurisdiction in the United States that places no limitations on a convicted felon’s juror eligibility.  Instead, Maine screens prospective felon-jurors using their normal jury selection procedures. In recent years, scholars have suggested that meaningful community engagement can help facilitate former offenders’ reintegration and criminal desistance.  From that theoretical posture, a number of empirical studies have explored the connection between participation in the electorate and the reentry of former offenders. Those studies suggest that voting has the potential to prompt pro-social changes among former offenders.  Still, to date, no research has focused on jury service as a form of civic inclusion that may foster successful reintegration and criminal desistance.

Drawing on data derived from a large-scale field study in Maine, the present article addresses this research void, arguing that the jury is perfectly positioned as a tool for change, employable by jurisdictions seeking to facilitate the successful reentry of former offenders.  This article further notes that Maine is the only U.S. jurisdiction that has exploited this transformative power of the jury process. 

August 22, 2018 in Collateral consequences, Reentry and community supervision | Permalink | Comments (2)

Tuesday, August 21, 2018

Still more on Senator Cotton's efforts to thwart significant federal criminal justice reforms and responses there to

In posts late last week here and here, I noted the commentary from Senator Tom Cotton attacking the federal criminal justice reform bills moving through Congress and some responses it has already engendered.  Now Politico has this new article on this beat headlined "Sentencing reform tests Cotton’s sway with Trump."  Here are a few highlights from a lengthy article:

Tom Cotton is going all out to defeat a last-ditch effort to pass sentencing reform before this year’s midterm elections, hoping to win a high-stakes influence campaign over President Donald Trump on the issue.

Cotton is lambasting the proposal as a “jailbreak” that would “let serious felons back on the streets,” taking on a daunting coalition fighting for the package that includes the Koch political operation, White House adviser Jared Kushner and a number of powerful GOP senators. But Cotton believes that, in the end, President Trump and Senate Majority Leader Mitch McConnell (R-Ky.) will side with him.

“The president went to Singapore and agreed with the Singaporeans that we should give the death penalty to drug dealers. I can’t imagine the president wants to reduce mandatory minimum sentences for drug dealers,” the Arkansas Republican said in an interview. “I believe Sen. McConnell shares my view that we should not let serious felons out of jail and we should not shorten the sentences for drug dealers.”

Even opponents of sentencing reform will privately admit it would likely pass if McConnell brings it up. But Cotton’s loud opposition may determine whether or not McConnell even allows a vote given his reluctance to summon up legislation that divides the conference — right before the election, no less....

The conflict is pitting some of Trump’s closest allies against each other. On one side are Cotton and Sen. David Perdue (R-Ga.), who calls the sentencing component “troubling” and wants to concentrate on prison reform. On the other are Sen. Rand Paul (R-Ky.), who wants to go even further on criminal justice reform but would be willing to accept the slimmed-down proposal, and Sen. Lindsey Graham (R-S.C.), who supports it....

Though the president supports the standalone prison reform effort, no one is quite sure where exactly Trump is going to come down on the sentencing piece that’s being added by Senate Judiciary Chairman Chuck Grassley (R-Iowa). Advocates for sentencing reform are hoping the president will offer a crucial endorsement to get the legislation across the finish line after commuting the sentence of Alice Johnson for drug offenses, while opponents say he’s unlikely to undercut his law-and-order persona....

“There is not a constituency, certainly among Republican voters, to let serious felons out of prison or slash their prison sentences,” Cotton said in the interview. “It’s ill-advised policy and even more ill-advised timing.” Countered Paul, another close Trump ally with opposing views: “We have a lot of non-violent criminals in our prison and they’re taking up space that could be better put to use for violent criminals."

Cotton also has strong allies, including Attorney General Jeff Sessions, who has long opposed sweeping sentencing reforms. The two have frustrated people working on the bill.

Yet many on the law enforcement side, a key Trump constituency, are working with Cotton. Jonathan Thompson, the National Sheriff Association's executive director, has spoken to the president twice about sentencing reform in the past year and half: “The president knows we’re concerned.” “We think what he’s doing is terrific. Sen. Cotton recognizes that it’s a very flawed bill,” said Larry Leiser, president of the National Association of Assistant U.S. Attorneys. “We’re hopeful the president won’t [endorse it].”

Unless Trump makes a major push for the legislation and takes on his critics like Cotton, there are many reasons for McConnell not to bring up the bill before the election. It would likely take at least a week for the Senate to process, time that McConnell might think is better spent processing lifetime judicial appointments ahead of an uncertain midterm outcome. Plus it would invoke an ugly intraparty foodfight, squaring Cotton off with proponents of sentencing reform like Grassley, who has been tweeting that the president “wants something done on prison/crim justice reform. So do I.”

“The consensus is the prison reform stuff,” said Senate Majority Whip John Cornyn (R-Texas). “There are people who want to do more, but it’s the usual issue: Do you want try and do more and fail, or do you want to do what’s possible?”

Despite the long odds, the battle is raging behind the scenes. Internal discussions of the subject at Senate lunches have been heated, according to Republican sources, a preview of what might happen on the Senate floor if the chamber takes it up. It’s the same dynamic that kept McConnell from bringing up a larger criminal justice reform package in 2016 as Cotton railed against it and declared the United States has an "under-incarceration problem.”

Trump’s “for prison reform, I’m for prison reform. What I don’t support is sentencing reductions under the guise of prison reforms, and that’s unfortunately what many senators are moving towards,” Cotton said in the interview. A number of conservative senators have quietly expressed their opposition to the sentencing reform component, according to groups working to defeat it. But Cotton's taken a bigger gamble by getting out front to stop a bill that hasn’t even produced yet.

Meanwhile, over here at the Daily Signal, John G. Malcolm and Brett Tolman have this lengthy new commentary under the headline "Why It’s Not ‘Soft On Crime’ to Support Criminal Justice Reform." Here is a snippet focused on mandatory minimums:

Cotton and others argue that mandatory minimum charges are reserved for kingpins and other major drug dealers, and low-level dealers are rarely subjected to mandatory minimum penalties. However, the U.S. Sentencing Commission, a bipartisan independent agency that collects and analyzes federal sentencing data, found that a surprisingly large number of low-level drug couriers are subjected to mandatory minimum penalties.

It is easy to see how that happens. Under federal law, a defendant charged as part of a drug conspiracy—even a low-level courier, who may be acting solely to support his own addiction—can be charged and sentenced based on the total amount of drugs sold by everyone who participated in that conspiracy. That’s true even if the courier never knew who these people were or what quantity of drugs they sold.

Of course, the courier should be punished. But how badly? Remember, we are talking about mandatory minimum penalties. A judge can always impose a higher sentence, up to the statutory maximum, for deserving drug traffickers and violent criminals. The proposed reductions are, in truth, quite modest.

Senators are currently debating the possibility of reducing the mandatory minimum penalties for second-time drug offenders from 20 years to 15 years, and for third-time drug offenders from life in prison without the possibility of parole to 25 years. Does anyone really think that minimum penalties of 15 and 25 years are not serious? 

Some of many prior recent related posts:

August 21, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Saturday, August 18, 2018

Discussions of criminal justice supervision and collateral consequences that merit extended conversations

This past week I saw two notable commentaries over at The Conversation. Here are links and brief excerpts:

Vincent Schiraldi, "Parole and probation have grown far beyond resources allocated to support them"

Today, there are twice as many people supervised on parole or probation as are incarcerated in the U.S....

Thousands of probation and parole officers supervise nearly 5 million people across the U.S. However, as the number of people under community corrections has swelled, resources for officers have lagged. While twice as many people are supervised in the community as are incarcerated, 9 out of 10 correctional dollars is funneled to prisons according to a report from 2009, the most recent year with available data....

In 2017, every major community corrections association in the U.S., along with 45 elected or appointed prosecutors and 35 probation and parole officials as well as myself wrote in a statement: “Designed originally as an alternative to incarceration, community corrections has become a significant contributor to mass incarceration” that should be downsized while reinvesting the savings in “improving community based services and supports for people under supervision.”

Stanley Andrisse, "I went from prison to professor — here’s why criminal records should not be used to keep people out of college"

Beginning next year, the Common Application – an online form that enables students to apply to the 800 or so colleges that use it – will no longer ask students about their criminal pasts.

As a formerly incarcerated person who now is now an endocrinologist and professor at two world-renowned medical institutions — Johns Hopkins Medicine and Howard University College of Medicine — I believe this move is a positive one.  People’s prior convictions should not be held against them in their pursuit of higher learning.

While I am enthusiastic about the decision to remove the criminal history question from the Common Application, I also believe more must be done to remove the various barriers that exist between formerly incarcerated individuals such as myself and higher education.

August 18, 2018 in Collateral consequences, Criminal Sentences Alternatives, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (0)

"Divided We Fall: Parole Supervision Conditions Prohibiting Inter-Offender Associations"

The title of this post is the title of this new article recently posted on SSRN and authored by James Binnall. Here is the abstract:

In the United States, almost all criminal offenders who serve a term of imprisonment are subject to a period of post-incarceration supervision.  Commonly known as parole, this form of supervision requires former inmates to comply with a variety of conditions.  A nationwide survey of standard parole conditions reveals that a vast majority of jurisdictions categorically restrict parolees’ associations with other parolees, convicted criminals, and/or convicted felons.  These blanket offender no-association conditions ostensibly presume that former offenders are irreparably flawed, homogenous, and that inter-offender relationships are uniformly criminogenic.

This article questions those presumptions, suggesting that offender no-association conditions endorse an untenable conceptualization of former offenders, a rejection of evidence-based parole practices, an uninformed view of inter-offender associations, and a superficial application of criminological theory.  This article further argues that by categorically prohibiting all inter-offender associations, offender no-association conditions foreclose strengths-based approaches to reentry and inhibit mechanisms that can foster criminal desistance. In this way, such conditions unnecessarily subvert the rehabilitative goal of parole, likely making them impermissibly overbroad in their current form.

August 18, 2018 in Collateral consequences, Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (0)

Friday, August 17, 2018

Will Trump White House soon "deploy its assets ... to stump" for federal criminal justice reform? It may be critical.

The question in the title of this post is prompted by this new Hill commentary authored by Holly Harris headlined "Connect Beltway to America to get federal criminal justice reform done." Here are excerpts:

When it comes to excuses to pass over federal criminal justice reform, I have heard them all, from “it takes at least 10 years to pass legislation like this” to “there is no way move a criminal justice bill in an election year.” But the one that really burns me is “you cannot point to state success because the federal system is much more complicated.”

The arrogance of the Beltway is incredible.  Of the more than 2.3 million people serving time behind bars in this country, more than 1.3 million are housed in state prisons, and about 615,000 sit in local jails.  Only 225,000 are housed in a federal facility. The Texas prison system alone holds more inmates.  State prison systems deal with overcrowding, stifling budget cuts, and drug epidemics that show no signs of abating.  Because they can see and experience this crisis first hand, governors on the left and the right are passing strong criminal justice reforms that offer alternatives to incarceration such as drug treatment programs, provide opportunities that put people back to work, and save millions of taxpayer dollars.

Now these governors are invading the federal reform effort, seeking to finally connect Beltway leaders to what is happening in their own backyards.  President Trump, in a savvy move, convened a criminal justice roundtable at his resort in New Jersey and invited Republican and Democratic governors from states like Louisiana, Mississippi, Kentucky and Georgia, all of which have passed strong criminal justice reforms with bipartisan support that decrease incarcerated populations, improve reentry programs, and ultimately lower crime and recidivism.  This is all part of a strategy to take the fight to pass a federal bill straight to the people and away from the status quo in Washington....

Keenly aware that red states like Georgia, Oklahoma, Mississippi and Kentucky have made aggressive changes to their justice systems, including sentencing reforms and felony expungement laws, [Jared] Kushner has showed the president these success stories.  In this latest roundtable, Trump included the Democratic governor of Louisiana, John Bel Edwards, who shared that reforms implemented in his state led to a 20 percent decrease in the number of people imprisoned for nonviolent crimes, which frees up valuable resources to fight dangerous crimes and reduce recidivism.

While the public safety benefits of reform are undoubtedly impressive to a “tough on crime” president, the overwhelming public support for these issues must be equally attractive.  Voters across the country are looking to Congress to act. Polling from earlier this year shows that 75 percent of voters, a clear supermajority crossing all partisan, geographic, education, income, racial and ethnic boundaries, believe the criminal justice system needs to be reformed and support changes such as fixing our cash bail system and replacing mandatory minimum sentencing laws.

In the final stretch to a Senate vote, do not be surprised to see this White House deploy its assets to the states to stump for a bill they know the American people want.  There will be folks from every walk of life lining up behind them, from business leaders and military veterans to civil rights advocates and faith leaders.  Just this week, people from 50 organizations of all political stripes and bipartisan senior legislative staff met to talk details. When the phone lines light up in offices all over Capitol Hill demanding a vote, Washington may well be out of excuses.

Candidly, I will be quite surprised if this White House were to deploy its assets to stump for reform, but I certainly hope this will happen.  I am fairly confident that if Prez Trump were to do a series of tweets in support of a federal criminal justice reform bill, that bill would have a much greater chance of getting to his desk.  And Prez Trump does not have to change minds about pending reforms: there is already overwhelming bipartisan support for the basic substance of nearly every serious sentencing and prison reform bill. 

The current challenge is  getting congressional leadership to settle on which version of which bill will be brought up for a vote. Senate leadership has been the bottleneck lately, and the White House surely could and should focus, publicly and privately, on advocacy toward leadership to settle on a bill and finally allow a vote.  (Notably, the FIRST STEP Act got 86% approval when it got to a vote in the House of Representatives, so it seems informed legislators are even more supportive of federal reform than the poll numbers.) 

This piece by Holly Harris highlights just why passage of federal criminal justice reform could be a huge win for this Administration, and I hope Prez Trump sees the potential political value to pushing reform over the finish-line.  Presidents always have unique powers and unique opportunities to grease the legislative process, and a congressional reform discussion that has been going strong for now five years with no tangible results can certainly uses as much grease as it can get. 

Some of many prior recent related posts:

UPDATE: I have just added to the title of this post after seeing this new Politico piece headlined "Criminal justice deal faces steep Senate hurdles despite Trump’s push."  Here is an excerpts that has me thinking reform does not get done unless and until the Trump White House puts all its might behind the effort:

Trump has stepped up his own calls for a deal on the prisons overhaul that the House passed earlier this year, holding two events so far this month.  And groups off the Hill say they're closing in on a path to pass the legislation through the Senate by adding some of the sentencing changes Judiciary Chairman Chuck Grassley (R-Iowa) spent years negotiating with Democrats.

But interviews with a dozen GOP senators show that those talks remain in a precarious state.  That’s because the handful of Republicans who have long protested reducing mandatory-minimum sentences leave Majority Leader Mitch McConnell (R-Ky.) without any incentive to call up legislation that would split his conference.

One of those longtime critics of adding sentencing to the House-passed prisons bill bluntly predicted Thursday that McConnell would not “bring the bill to the floor any time soon.”

“I’m not sure that we can put together a deal,” Sen. John Kennedy (R-La.) said in an interview. “I’m not sure we should.”...

Close involvement from Trump will likely be required for the GOP to get past its internal schism over reducing mandatory minimum sentences as part of a prisons package. Grassley's bipartisan package of sentencing and prison reforms boasts 15 Republican cosponsors, but Attorney General Jeff Sessions opposes even the narrower prisons-only approach the House has passed.

August 17, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Mandatory minimum sentencing statutes, Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (1)

Wednesday, August 15, 2018

"Nowhere to Go: Homelessness among formerly incarcerated people"

The title of this post is the title of this notable new Prison Policy Initiative report which gets started this way:

It’s hard to imagine building a successful life without a place to call home, but this basic necessity is often out of reach for formerly incarcerated people.  Barriers to employment, combined with explicit discrimination, have created a little-discussed housing crisis.

In this report, we provide the first estimate of homelessness among the 5 million formerly incarcerated people living in the United States, finding that formerly incarcerated people are almost 10 times more likely to be homeless than the general public.  We break down this data by race, gender, age and other demographics; we also show how many formerly incarcerated people are forced to live in places like hotels or motels, just one step from homelessness itself.

August 15, 2018 in Data on sentencing, Offender Characteristics, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (1)

Friday, August 03, 2018

Interesting new data suggesting important recent recidivism reduction

Changing-State-of-Recideivism_chart_650px_v1The folks at Pew have this interesting and important new data analysis under the title "The Changing State of Recidivism: Fewer People Going Back to Prison: Data show the number returning 3 years later is down by nearly a quarter." Here is the heart of the data:

The share of people who return to state prison three years after being released — the most common measure of recidivism — dropped by nearly a quarter over a recent seven-year period, according to an analysis by The Pew Charitable Trusts of federal Bureau of Justice Statistics (BJS) data on prisoners released in 2005 and 2012.

Pew analyzed publicly accessible data from the 23 states that reported reliable prison admissions and release data to BJS from 2005 through 2015.  Among prisoners released in 2005, 48 percent returned to prison by the end of 2008. By comparison, among those released in those states in 2012, 37 percent had at least one new prison admission by the end of 2015.  That translates into a drop of 23 percent. The states included in the analysis accounted for about two-thirds of those released from state prisons nationwide each year.

Longer-term recidivism also fell.  Prisoners released in these states in 2010 were 13 percent less likely than the 2005 cohort to return to prison at least once by the end of the fifth year after release.  Included in these numbers are people sent back to prison for a new crime or for violating the terms of their post-prison supervision....

Pew undertook this research to compile and make public the most current multistate data on recidivism trends. The BJS national report on state prison recidivism released in May 2018 presents nine years of data on people released from 30 states in 2005, but it includes no information on prisoners released since then.

To obtain more recent data, Pew researchers used publicly available administrative numbers that BJS collected from states for the National Corrections Reporting Program.  State prisoners are assigned unique identifiers, enabling researchers to track when they are released and whether they return to prison — except in cases in which a prisoner is released in one state and readmitted to prison in another.  Pew analyzed data from the 23 states that consistently reported prison admissions and releases every year from 2005 to 2015.  The cohorts ranged from 392,000 to 458,000 released prisoners....

Reducing recidivism improves public safety, reduces taxpayer spending on prisons, and helps formerly incarcerated people successfully resume family and community responsibilities.  But a lack of data has complicated efforts to understand the aggregate effects of myriad federal, state, and local efforts to reduce reoffending. This analysis shows that meaningful improvements in recidivism are occurring.

August 3, 2018 in National and State Crime Data, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (1)

Monday, July 30, 2018

Poll suggests huge public support for FIRST STEP Act with lots of other interesting findings

Over the weekend I noticed this Hill piece reporting in its headline "Poll finds broad support for House-passed prison reform bill." Here are the details via :

The poll, conducted for Freedom Partners by the Charles Koch-backed group In Pursuit Of and provided exclusively to The Hill, found that 70 percent of likely voters approve of the First Step Act, which cleared the House by a 360-59 margin earlier this year. Only 14 percent said the Senate should not pass it, according to the poll that sampled Republicans, Democrats and voters who did not affiliate with either party.

Freedom Partners has put six-figures behind an ad campaign urging senators from both parties to support the legislation. They hope the poll results will prod Senate Republicans to take the bill up.

Passing prison reform is a top priority for the Kochs. There is frustration among the network of conservative donors and activists that the Senate has not moved to take up the bill, which aims to incentivize inmates to complete prison programs that might reduce their likelihood to commit crimes again when they are released.

“Voters broadly support the FIRST STEP Act and will hold senators accountable for failing to pass the bill,” said Freedom Partners Chairman Mark Holden. “It’s time for the Senate to do its job and send this bipartisan legislation to President Trump’s desk.”

The bill has 60 percent support among registered Republicans, according to the poll. Nearly half of likely voters – 47 percent – said they would have a more negative view of Senate Republicans if they don’t move to pass the bill....

The Freedom Partners survey of 1,759 likely voters was conducted online between July 18 and July 20 and has a 2.3 percent margin of error.

This press release provides a few more details about this poll as well as this link to a summary of key findings from the poll. These findings, in particular, should be encouraging to those hoping criminal justice reform will be a salient political issue this fall:

How important is it to reduce the number of people who are in prison in America today?

72% TOTAL IMPORTANT    28% TOTAL NOT IMPORTANT

28% Very important    44% Somewhat important

19% Not very important    9% Not at all important...

 

Thinking ahead to the midterm elections this November – how important to you is the issue of criminal justice reform as you decide who you’ll be voting for?

75% TOTAL IMPORTANT    25% TOTAL NOT IMPORTANT

25% Very important    50% Somewhat important

20% Not very important    5% Not at all important...

 

Would you be more or less likely to vote for a political candidate if you knew he or she supported criminal justice reform?

60% More likely to support candidate    32% No difference in support    8% Less likely to support candidate

July 30, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (4)

Sunday, July 29, 2018

How should advocates for reduced prison populations respond to deadly actions by released violent offenders?

In response to recent posts about clemency here and about reducing prison populations here, commentator federalist has flagged two local stories of violent offenders released after relatively short periods of incarceration gong on to commit murder.  One story, out of Atlanta, and is discussed in this newspaper piece under the headlined "‘Visionary’ didn’t keep promises to help violent teenager."  Here is a snippet:

One day last August, Gwendolyn Sands stood before a Fulton County judge and promised to rehabilitate a teenage boy already well on his way to a life of violence.... Her organization, Visions Unlimited, would pair the boy with a “life coach” for “24/7 supervision,” Sands told the judge. Her staff would instruct the boy in life skills, career readiness and the perils of street gangs. They would hold “family support” meetings every month  — “and more often,” Sands said, “as necessary.”

Later, she would even agree to take the boy into her own home.  It seemed the only way to shelter him from the streets where he had stuck a pistol in a woman’s face and robbed her.

But Sands kept almost none of her promises to transform Jayden Myrick.  Now Myrick is charged with murder, accused of shooting 34-year-old Christian Broder during a robbery on July 8 outside Atlanta’s Capital City Club.  Broder, an Atlanta native who lived in Washington, D.C., died July 20.  He left behind a wife and an infant daughter.  And, at 17, Myrick faces life in prison — the very outcome the judge had hoped Sands would help prevent....

Fulton Superior Court Judge Doris Downs, who twice released Myrick into Sands’ custody, declined to comment.  Other court officials would not answer questions about why Downs or other judges trusted Visions Unlimited or whether they vetted Sands’ credentials.  In a statement, Chief Judge Robert McBurney deflected responsibility for monitoring the performance of such organizations.

Another story, out of San Francisco, is discussed in this CNN piece headlined "Officials still don't know why a white man allegedly stabbed a black woman to death in a subway station." Here is an excerpt:

Nia Wilson was standing on a Bay Area Rapid Transit station platform in Oakland, California, Sunday night when she was stabbed to death in an apparently unprovoked attack.

By Monday night, John Cowell, 27, had been arrested in connection to the stabbing, but days later, officials still haven't said what prompted the attack, which a police chief compared to a "prison yard assault."...

Cowell was convicted of second-degree robbery and assault with a deadly weapon in 2016, according to the criminal complaint.  He was paroled in May after being sentenced to two years in prison for second-degree robbery, according to California Department of Corrections and Rehabilitation....

Cowell's family released a statement extending its sympathy to Wilson's, and said Cowell had long been suffering from mental illness.  "He has been in & out of jail & has not had the proper treatment," the statement said.  He's been diagnosed with bipolar disorder and schizophrenia, the family said, and they had to get a restraining order at one point "for our own protection."  Cowell's been living on the streets since.

In one comment, federalist not unreasonably asks "How, Doug, do we prevent mistakes like Judge Downs'?".  I do not have a fully satisfying answer: judges are imperfect at gauging risk, and the only certain way to prevent any and all released offenders from ever committing any serious future crimes is to never release any of them in the first place.  I am drawn to using actuarial risk-assessments in our criminal justice system because such tools should help reduce mistakes in forecasts of future violent behavior, but there still will be mistakes (and violent consequences) even with the use of (inevitably imperfect) risk-assessment instruments. 

As an advocate of various modern criminal justice reforms, I am in this context eager to (a) lament that we do not have been juvenile and prison programming to better rehabilitate violent persons, and (b) note that modern mass incarceration is the result of many "mistakes" of over-incarceration.  But these statements provide cold comfort to anyone reasonably inclined to call the tragic deaths of Christian Broder and Nia Wilson entirely preventable if we had just "gotten tough" with Jayden Myrick and John Cowell.

Another move, of course, is to stress that modern sentencing reform efforts are or should be particularly focused on non-violent offenses and offenders.  But sensible folks arguing for dramatic reductions in our prison populations rightly say that violent offenders should not be excluded from efforts to reduce reliance on incarceration, and there is also recidivism data showing that some non-violent offenders will go on to commit subsequent violent offenses.

So, dear readers, is there a "good" answer to the question in the title of this post?

July 29, 2018 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (27)

Saturday, July 28, 2018

Interesting early information from the Safe Streets & Second Chances effort to take an evidence-driven approach to recidivism

Sssc_socialIn this post from January, I spotlighted the Safe Streets & Second Chances initiative which describes itself as an "an innovative program that takes an evidence-driven approach to the chronic issues of repeat offenders and recidivism, using academic research to craft individualized reentry plans that shift the ultimate measure of success from whether individuals are punished to whether these individuals are improved, rehabilitated, and capable of redemption."  This new Washington Post piece, headlined "Koch network project gears up to help inmates reenter society after prison," provides an interesting update on the project:

A new project funded by the network aligned with billionaire industrialist Charles Koch is tracking and monitoring 1,100 inmates in four states after they are released from prison starting Aug. 1 to help them successfully reintegrate into society.

Through the project, called Safe Streets and Second Chances, a team of researchers from Florida State University will evaluate former inmates for 15 months after their release — a volatile period that often leads to their rearrest. The project is in its $4 million pilot phase, as researchers prepare to test the effectiveness of a new reentry model that focuses on individualized plans to help inmates find healthy coping and thinking patterns, the right employment opportunities, and positive social engagement.

For the past six months, the researchers have been interviewing the men and women in the program, who are currently housed in 48 prisons in rural and urban areas in Texas, Florida, Pennsylvania and Kentucky. They will present the early findings today in Colorado, at the twice-annual meeting of the network’s largest donors....

The network is advocating a shift in the criminal justice system toward prioritizing rehabilitation and reducing recidivism, rather than focusing on punishment. For years, the network has pushed for bipartisan support for overhauling the criminal justice system, and has teamed up with Van Jones, a former Obama administration official and CNN political commentator, for the cause....

With the research conducted through Safe Streets and Second Chances, network officials say they want to transform the way reentry programs are run in communities across the country. “What we’re trying to do is to prepare prisoners to reenter society and become productive members and taxpaying citizens, hopefully living productive lives and taking care of their families,” said Doug Deason, a Dallas businessman and Koch network donor who is on the advisory council of Safe Streets and Second Chances.

After interviewing the inmates preparing for release, researchers found these prisoners overwhelmingly felt optimistic about their chances of rehabilitation in life outside prison but generally had high levels of trauma. Nearly 70 percent of people in the program reported seeing someone seriously injured or killed. Half the inmates had seen or handled dead bodies — more than a dozen times for some male prisoners. The majority of them reported having a close friend or family member who was murdered, and 58 percent reported having a drug use disorder.

People with untreated trauma symptoms are more likely to become impulsive and incorrectly perceive threats to themselves and others, which could lead to an act of crime and recidivism, according to Carrie Pettus-Davis, a Florida State University professor and the lead researcher. It also could affect their ability to navigate the laws restricting felons from employment, housing and education opportunities, she said.

“Despite all of the positive orientations and aspirations, this population also is really dealing with some very challenging circumstances,” Pettus-Davis said. “There’s an enormous amount of trauma represented for both men and women. ... Once people become incarcerated, we need to make sure we’re appropriately responding to experiences of psychological trauma.”

Lots of information and data about and from this project can be found in this new release from Safe Streets & Second Chances under the title "New Research Shows Incarcerated Individuals Want to Be Rehabilitated and Are Hungry for Second Chances as They Reenter Society." Here are excerpts (with links from the original):

Incarcerated individuals want to be rehabilitated, are eager for a second chance, and are emotionally capable of successfully reentering society, new independent data shows.

According to statistics compiled by Florida State University (FSU) researchers, both male and female participants said they want to work more, learn more, and spend more time on personal relationships, improving their health, and practicing their faith than they currently do while incarcerated. They also reported fairly high levels of emotional well-being, suggesting that they are primed to successfully rejoin society upon their release....

According to the data, inmates want to rehabilitate themselves through work, education, and faith, and spend more time on personal relationships.

  • Respondents expressed a desire to work or improve their work situation.
    • Men reported working about two hours a day but said they would like to work almost four times that amount.
    • Women reported working almost 1.5 hours per day but said they’d like to work over three times that amount.
  • Overall, respondents said they’d like to spend twice the amount of time they currently spend on school activities.
  • Both men and women said they want to devote more time to community involvement and spend twice as much time working on personal relationships.
  • Both groups said they’d like to spend more time each week on spiritual or religious activities.

Next, while individuals said they had experienced a generally high level of trauma in life, they also reported a fairly high level of emotional well-being.

  • Nearly 70 percent of participants said they had seen someone seriously injured or killed.
  • 50 percent said they had seen dead bodies (other than at a funeral) or had to handle dead bodies. Male respondents reported experiencing this an average of over 17 times.
  • Over 40 percent said they had been attacked with a gun, knife, or some other weapon by someone, including a family member or friend.
  • About 57 percent said that a close friend or family member had been murdered.
  • Over 32 percent of female respondents said they had been forced to have intercourse or another form of sex against their will.
  • On average, females reported having experienced sexual abuse as a child 8.88 times.
  • 58 percent reported having a drug use disorder, while 35 percent reported having an alcohol use disorder.
  • While both men and women reported similar levels of childhood emotional abuse, they also reported fairly high levels of current emotional well-being, suggesting that they are emotionally resilient and fit to contribute to society in a positive way.

July 28, 2018 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (1)

Friday, July 27, 2018

"Those in Federal Prison and Their Families Can’t Wait for the Ideal Reform Bill"

The title of this post is the title of Shon Hopwood's new entry over at Prison Professors.   This piece is styled as a response to the this lengthy Hill commentary by DeAnna Hoskins, the president and CEO of JustLeadershipUSA, which assailed the FIRST STEP Act as "a step backward [that] invites a scary future" (which I discussed critically here).  I recommend folks read everything in full, and I will here reprint how Shon's piece concludes:

I speak to and receive emails from thousands of families with someone in federal prison.  These families almost invariably support First Step.  At the Reform Now rally outside Capitol Hill in early July, many of these families explained how First Step will significantly improve their family’s lives — whether by forcing the Federal Bureau of Prisons to provide meaningful rehabilitation programs or housing their loved one closer to home.  The reform groups who oppose First Step weren’t present for the rally.  I wish they were. They’d have a better understanding of what makes the federal prison system uniquely harmful to those who are inside it, and how First Step will alleviate some of those harms.

The families who aren’t supportive of First Step are mostly those with loved ones serving really long sentences or life in prison, and this won’t help them get out of prison — even as it is likely to improve the federal prison system overall.  I empathize with their pain and frustration.  But retroactively applicable sentencing provisions has no chance of passing this year.  Not even the Fair Sentencing Act of 2010 was made retroactive when Democrats had a supermajority in Congress and the Presidency.  It is hard to imagine the current Congress somehow doing better.

First Step along with some sentencing additions is the best bill we can get now in the current political climate.  If we don’t take First Step now, we will be waiting at least another two years for any possibility of federal prison reform.  If the past thirty years is a guide, we are probably waiting much, much longer.  Given the stakes, there should be an urgency on all sides to get this done.

I understand that many people have strong feelings against the current President, and that undoubtedly drives some of the angst against First Step.  Yet there can be fights about every other issue without simultaneously rejecting a federal prison reform bill that provides meaningful help to those currently in prison and their families.

Some of many prior related posts:

July 27, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (3)

Thursday, July 26, 2018

Ohio gubernatorial candidate talking up criminal justice reform while advocating for state constitutional drug sentencing initiative

A couple of week ago, I flagged here an interesting and intricate drug sentencing initiative headed for the November 2018 ballot here in Ohio.  As of earlier this week, the "Neighborhood Safety, Drug Treatment and Rehabilitation" amendment (in full at this link) officially qualified for the fall ballot as Issue 1.  And, as reported in this local article headlined "Cordray, Holder support diversion of drug offenders from prison," this proposal is already receiving high-profile support:

Ohio no longer can afford — both in terms of money and lives — to imprison low-level drug offenders who instead should be diverted to addiction treatment, says Democratic gubernatorial candidate Richard Cordray.  “We need to be tough on violent criminals, but mass incarceration of drug addicts who should be in treatment is unwise, it wastes too much money and it wastes a lot of lives in Ohio,” Cordray said.

The former Ohio attorney general was joined by former U.S. Attorney General Eric Holder to discuss criminal justice reform at a Thursday campaign event at the Downtown YWCA.  The Democrat who served under former President Barack Obama spoke out against “warehousing” minor criminal offenders, saying governors and state attorneys general must steer new policy courses.

Holder chided Republican President Donald Trump and his U.S. attorney, Jeff Sessions, for “going back to the bad, old days of unthinking (criminal) sentences” for non-violent offenders who deserve another chance.

Cordray underlined his strong support for state Issue 1 on the Nov. 6 ballot that would reclassify low-level felony drug use and possession charges to first-degree misdemeanors punishable by only six months in jail, with the goal of diverting offenders to drug treatment.  It also would potentially allow the release of all current such offenders from state prisons.  “I believe It will set the way toward a policy of being smart on crime in the future, smart on how we use taxpayers’ dollars, smart on how we build people’s potential to be productive citizens in our society,” Cordray said.

Holder and Cordray agreed such a sentencing reform would be neither easier nor cheap in the short run, but provide savings and resuscitate more Ohioans from drugs and failed lives in the long run.

Comment is being sought from the gubernatorial campaign of Republican Mike DeWine, Ohio’s attorney general, whether he supports or opposes the statewide ballot issue.

The administration of Republican Gov. John Kasich is spending up to $58 million over two years to divert a flood of non-violent felony offenders, many convicted of drug possession amid the opioid crisis, from state prisons to local programs.  Many counties, however, are not accepting the money, saying it would not cover all local costs. More than a fourth of state inmates are non-violent drug offenders....

A Republican National Committee spokeswoman lambasted the pair.  “Richard Cordray’s decision to fund-raise with disgraced former Attorney General Eric Holder proves just how swampy and out-of-touch he is with Ohioans.  You can tell a lot about a person based on the company they keep, and if Cordray chooses Eric Holder as an ally, then Ohioans ought to be wary and steer clear of Richard Cordray,” said Mandi Merritt.

Prior related post:

July 26, 2018 in Drug Offense Sentencing, Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (1)

Sunday, July 22, 2018

More old-school, tough-on-crime talk and thinking from Attorney General Jeff Sessions

Attorney General Jeff Sessions delivered these remarks today at the 2018 Summer Conference for the Prosecuting Attorneys' Council of Georgia.  Much of what he said will sound familiar to those who have followed his public speeches, but today I was really struck by a certain logical disconnect in some of his standard rhetoric.  Here are excerpts, with bold added to highlight key passages for follow-up comments:

From the early 1990s until 2014, the crime rate steadily came down across the country.  But from 2014 to 2016, the trends reversed.  The violent crime rate went up by nearly seven percent. Robberies went up. Assaults went up nearly 10 percent.  Rape went up by nearly 11 percent. Murder shot up by more than 20 percent!...

We’ve got to get back on track. We must take these recent developments seriously and consider carefully what can be done about them.  Yielding to these trends is not an option for America and certainly not to us in law enforcement.  We have clear goals. From day one — I plainly stated our goal at DOJ — reduce crime, reduce homicides, reduce prescriptions, and reduce overdose deaths!...

We’ve got to be smart and fair about who we put behind bars and for how long.  This is not mindless “mass incarceration”.  But prison does play a role.  Two months ago, the Department of Justice’s Bureau of Justice Statistics released a report on the recidivism rate of inmates released from state prisons in 30 states.

This is the longest-term study that BJS has ever done on recidivism and perhaps the largest. It was designed and started by the previous administration.  The results are clear and very important — historic importance. The reality is confirms what experienced professionals like yourselves have seen.

The study found that 83 percent of 60,000 state prisoners released in 2005 were arrested again within nine years.  That’s five out of every six.

The study shows that two-thirds of those — a full 68 percent — were arrested within the first three years.  Almost half were arrested within a year — one year – of being released. The study estimates that the 400,000 state prisoners released in 2005 were arrested nearly 2 million times during the nine-year period — an average of five arrests each.

Virtually none of these released prisoners were arrested merely for probation or parole violations: 99 percent of those arrested during the 9-year follow-up period were arrested for something other than a probation or parole violation.

In many cases, former inmates were arrested for an offense at least as serious — if not more so — as the crime that got them in jail in the first place.  It will not surprise you that this is often true for drug offenders. Many have thought that most drug offenders are young experimenters or persons who just made a mistake.  But the study shows a deeper concern.

Seventy-seven percent of all released drug offenders were arrested for a non-drug crime within nine years.  Presumably, many were arrested for drug crimes also. Importantly, nearly half of those arrests were for a violent crime.  Sometimes arrests lead to treatment, drug courts — often the problem is more serious.

Recidivism is no little matter.  It is a fact of life that must be understood.  But overall, the good news is that the professionals in law enforcement know what works in crime. We’ve been studying this and working on this for 40 years.

As any prosecutor in this room can tell you, when a criminal knows with certainty that he is facing real time, he is a lot more willing to confess and cooperate with prosecutors. On the other hand, when the sentence is uncertain and up to the whims of the judge, criminals are a lot more willing to take a chance.

Our goal as prosecutors is not to fill up the courts or fill up the prisons.  Our goal is not to manage crime or merely to punish crime.  Our goal is to reduce crime in America....

Law enforcement is crime prevention.  When we enforce our laws, we prevent new crimes from happening.  As prosecutors, we have a difficult job, but our efforts at the federal, state, and local levels have a real impact.  With every conviction we secure, we make our communities safer.

A blog post is an imperfect forum to work through all the particulars of AG Sessions' speech.  But his extended discussion of the BJS recidivism data (which concerns only state prisoners) suggests that modern prisons — at least in the late 1990s and early 2000s — functionally operated to make a lot of criminals worse, which in turn suggests that sending more people to prison would be a recipe for making ever more aggravated criminals.  Of course, this is what "professionals" generally know: time in prison tends to be criminogenic.  As Professor Mark Kleiman puts it, brute force often fails and we ought to seek to (and likely can) achieve less crime with less punishment.  

Put another way, the BJS recidivism data suggest we were doing something quite wrong with our prison policies even as crime was dropping from the early 1990s until 2014.  And yet the tenor of this speech, and what seems to be AG Sessions' general disaffinity for any federal criminal justice reforms, suggest AG Sessions is ever eager to embrace and champion all the policies and practices that contributed to modern mass incarceration despite evidence that those "old-school" policies and practices produce startling recidivism rates.

The significant crime spike that preceded AG Sessions coming in to office will seemingly always serves as a foundation and justification for him to promote and justify ever more federal prosecutors bringing ever more federal prosecutions.  But, as the title of this post hints, his old-school talk and thinking is tired and tiring, and likely disserves his presumably genuine commitment "to reduce crime in America."

July 22, 2018 in National and State Crime Data, Reentry and community supervision, Who Sentences | Permalink | Comments (22)

Thursday, July 19, 2018

"Assessing the Real Risk of Sexually Violent Predators: Doctor Padilla’s Dangerous Data"

The title of this post is the title of this new paper authored by Tamara Rice Lave and Franklin Zimring now available via SSRN. Here is its abstract:

This Article uses internal memoranda and emails to describe the efforts of the California Department of Mental Health to suppress a serious and well-designed study that showed just 6.5% of untreated sexually violent predators were arrested for a new sex crime within 4.8 years of release from a locked mental facility. 

The Article begins by historically situating sexually violent predator laws and then explains the constitutionally critical role that prospective sexual dangerousness plays in justifying these laws.  The Article next explains how the U.S. Supreme Court and the highest state courts have allowed these laws to exist without requiring any proof of actual danger.  It then describes the California study and reconciles its findings with those of a well-known Washington study by explaining the preventive effects of increasing age.  Finally, the Article explains how these results undermine the justification for indeterminate lifetime commitment of sex offenders

July 19, 2018 in Data on sentencing, Offender Characteristics, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (6)

"Why Can’t We Redeem the Sex Offender?"

The title of this post is the title of this revised commentary appearing at The Crime Report.  Here are excerpts:

When large nonprofit organizations otherwise committed to making the American justice system less draconian hire people with violent criminal records, they send a strong message that justice-involved people change, and are capable of not only reentry but success.

But these same organizations do not have anyone on the sex offender registry on staff, regardless of qualifications or demonstrated rehabilitation.

This is unsurprising, yet tragic.  When most people think of “sex offenders,” they imagine repulsive and heinous crimes against very young children.  And in 2005, a Gallup poll suggested that Americans feared terrorists less than sex offenders.

In reality, the phrase “sex offender” describes any person convicted under a statute that requires sex offender registration, which lasts anywhere from 10 years to natural life, depending on the state and the offense.  The registry includes everyone from the mentally ill, remorseful flasher to the sexually-motivated killer, as well as the older party in a high school sweetheart relationship to a dangerous child rapist.  There are almost one million Americans on sex offender registries, including people convicted for relatively minor sex crimes as children.

And what might sound like a heinous crime based on the name alone, like the production of child pornography, can describe what Edward Marrero faces prosecution for in federal court. Mr. Marrero admitted in court that he took sexual photos of his 17-year-old girlfriend when he was only 20 years old himself.  Marrero now faces 15-to-30 years in federal prison for photos of a relationship that would be legal virtually everywhere in the world.

It is important for directly impacted people to have a say in efforts intended to help them.  For example, the American Civil Liberties Union (ACLU) has pushed against employment discrimination against those with criminal records, and has more recently has hired highly qualified people who have committed serious crimes in their pasts.  But the ACLU appears to not have a single person on the registry as a part of any branch’s staff.

Is a close-in-age relationship between a young adult and a teenager morally worse than murder, kidnapping, or robbery?  What about teen sexting?  No, and the absolute dearth of otherwise-qualified sex offenders in criminal justice reform careers shows how far we have titled the scales from reality.

Criminal justice reform organizations should be able to ask these questions and answer them realistically, without putting too much credence in the byzantine and cruel state of American sex laws.  After all, we know better than anyone that the law is not always what is right.  Let us hire sex offenders when we believe in them.

July 19, 2018 in Collateral consequences, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (5)

Monday, July 16, 2018

Big Massachusetts Supreme Judicial Court upholds "drug free" condition of probation

The Massachusetts Supreme Judicial Court handed down this morning a decision in the closely-watched case of Massachusetts v. Eldred, No. SJC--12279 (Mass. July 16, 2018) (available here). The opinion starts this way:

Following a probation violation hearing, a judge in the District Court found that the defendant, Julie A. Eldred, had tested positive for fentanyl, in violation of a condition of her probation requiring her to abstain from using illegal drugs. The judge ordered that the conditions of her probation be modified to require her to submit to inpatient treatment for drug addiction. The defendant appeals from that finding and disposition.  The judge also reported a question drafted by the defendant concerning whether the imposition of a "drug free" condition of probation, such as appeared in the original terms of defendant's probation, is permissible for an individual who is addicted to drugs and whether that person can be subject to probation violation proceedings for subsequently testing positive for illegal drugs.

We conclude that, in appropriate circumstances, a judge may order a defendant who is addicted to drugs to remain drug free as a condition of probation, and that a defendant may be found to be in violation of his or her probation by subsequently testing positive for an illegal drug. Accordingly, we affirm the finding that the defendant violated her probation and the order requiring her to submit to inpatient treatment for her addiction.

July 16, 2018 in Criminal Sentences Alternatives, Drug Offense Sentencing, Offender Characteristics, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (2)

Tuesday, July 10, 2018

"Out of Prison & Out of Work: Unemployment among formerly incarcerated people"

The title of this post is the title of the latest notable report by the folks at the Prison Policy Initiative.  Here is how the report gets started:

Formerly incarcerated people need stable jobs for the same reasons as everyone else: to support themselves and their loved ones, pursue life goals, and strengthen their communities. But how many formerly incarcerated people are able to find work? Answering this fundamental question has historically been difficult, because the necessary national data weren’t available — that is, until now.

Using a nationally representative dataset, we provide the first ever estimate of unemployment among the 5 million formerly incarcerated people living in the United States.  Our analysis shows that formerly incarcerated people are unemployed at a rate of over 27% — higher than the total U.S. unemployment rate during any historical period, including the Great Depression.

Our estimate of the unemployment rate establishes that formerly incarcerated people want to work, but face structural barriers to securing employment, particularly within the period immediately following release. For those who are Black or Hispanic — especially women — status as “formerly incarcerated” reduces their employment chances even more. This perpetual labor market punishment creates a counterproductive system of release and poverty, hurting everyone involved: employers, the taxpayers, and certainly formerly incarcerated people looking to break the cycle.

Fortunately, as the recommendations presented in this report illustrate, there are policy solutions available that would create safer and more equitable communities by addressing unemployment among formerly incarcerated people.

July 10, 2018 in Prisons and prisoners, Reentry and community supervision | Permalink | Comments (1)

Saturday, July 07, 2018

Judge Jack Weinstein laments overuse of federal supervised release (and especially its revocation for marijuana use)

As regular readers know, US District Judge Jack Weinstein regularly produces interesting and important sentencing opinions, and his latest effort focuses on supervised release as well as marijuana reform. This New York Times article about this opinion, headlined "Brooklyn Judge Vows Not to Send People Back to Prison for Smoking Marijuana," starts with this accounting of the effort:

Noting that marijuana has become increasingly accepted by society, a federal judge in Brooklyn made an unusual promise on Thursday: He pledged he would no longer reimprison people simply for smoking pot.

In a written opinion that was part legal document, part mea culpa, the judge, Jack B. Weinstein, 96, acknowledged that for too long, he had been sending people sentenced to supervised release back into custody for smoking pot even though the drug has been legalized by many states and some cities, like New York, have recently decided not to arrest those who use it. Under supervised release, inmates are freed after finishing their prison time, but are monitored by probation officers.

“Like many federal trial judges, I have been terminating supervision for ‘violations’ by individuals with long-term marijuana habits who are otherwise rehabilitated,” Judge Weinstein wrote. “No useful purpose is served through the continuation of supervised release for many defendants whose only illegal conduct is following the now largely socially acceptable habit of marijuana use.”

The full 42-page opinion in US v. Trotter, No. 15-CR-382 (E.D.N.Y. July 5, 2018) (available here), is an interesting read and important for lot of reasons beyond the connections of criminal justice supervision and marijuana reform.  This first part of the introduction provides a taste for all the full opinion covers:

This case raises serious issues about sentencing generally, and supervised release for marijuana users specifically: Are we imposing longer terms than are needed for effective supervised release?  Should we stop punishing supervisees for a marijuana addiction or habit?

After revisiting and reconsidering these issues, I conclude: (1) I, like other trial judges, have in many cases imposed longer periods of supervised release than needed, and I, like other trial judges, have failed to terminate supervised release early in many cases where continuing supervision presents such a burden as to reduce the probability of rehabilitation; and (2) I, like other trial judges, have provided unnecessary conditions of supervised release and unjustifiably punished supervisees for their marijuana addiction, even though marijuana is widely used in the community and is an almost unbreakable addiction or habit for some.  As a result of these errors in our sentencing practice, money and the time of our probation officers are wasted, and supervisees are unnecessarily burdened.

In summary, in this and my future cases I will: (1) impose shorter terms of supervised release as needed; (2) give greater consideration to the appropriateness of conditions; (3) provide for earlier termination where indicated; and (4) avoid violations of supervised release and punishment by incarceration merely for habitual marijuana use.

July 7, 2018 in Criminal Sentences Alternatives, Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Thursday, July 05, 2018

Interesting and intricate Ohio drug sentencing initiative poised to qualify for November 2018 ballot

As reported in this local Ohio article, supporters of "a proposal to reduce penalties for nonviolent drug crime offenders submitted hundreds of thousands of signatures on Wednesday to put the measure on the November ballot." Here is more about the remarkable initiative that seems likely to generate some interesting debate in the midst of a big election year in Ohio:

The "Neighborhood Safety, Drug Treatment and Rehabilitation" amendment is backed by a bipartisan coalition of community, law enforcement, faith and business leaders and groups. The Ohio Safe and Healthy Communities Campaign submitted 730,031 signatures Wednesday; 305,591 valid signatures of Ohio registered voters are needed to qualify for the ballot....

Under the drug treatment and rehabilitation amendment:

  • Possessing, obtaining or using a drug or drug paraphernalia would be a misdemeanor offense, with a maximum punishment of 180 days in jail and $1,000 fine. First and second offenses within a two-year period could only be punished with probation.
  • Convicted individuals could receive a half day credit against their sentence for each day or rehabilitative work or programming, up to 25 percent of the total sentence.
  • Individuals on probation for a felony offense would not be sent to prison for non-violent violations of that probation.
  • Individuals convicted of such crimes could petition a court to reclassify the offense as a misdemeanor, which could result in their release from prison.

The provisions would not apply to convictions for the sale, distribution or trafficking of drugs or to convictions for any drug offense that, based on volume or weight, are a first-, second- or third-degree felony.

Money saved from those affected by the amendment would be diverted to substance abuse programs (70 percent) and to crime victims services (30 percent.)

Among the many remarkable elements of the ballot initiative, which can be read in full at this link, is that it proposes a state constitutional amendment; voter approval would make it nearly impossible for the Ohio General Assembly to alter the amendment's terms without another initiative vote.  Here is how the summary of the amendment explains its goals at the outset:

This Amendment would add a new section 12 to Article XV of the Ohio Constitution to reduce the number of people in state prison for low-level, nonviolent drug possession or drug use offenses or for non-criminal probation violations and by providing sentence credits for participation in rehabilitative programs and to direct the savings achieved by such reductions in incarceration to drug treatment programs and other purposes.

I have already heard a few folks express support for the initiatives substantive goals but concerns about amending the Ohio Constitution to achieve those goals. Interesting times.

July 5, 2018 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

"Strong safety net is crucial to Americans in life after prison"

The title of this post is the headline of this recent commentary in The Hill authored by Bruce Western. Here are excerpts:

The House recently voted to significantly cut the Supplemental Nutrition Assistance Program (SNAP), formerly known as food stamps, which helps fight hunger in America.  New work requirements have gained the most attention, but the House bill also includes lifetime bans for people with prior convictions for several kinds of violent crimes.  People with violent convictions keep their food stamp eligibility under the bipartisan Senate bill, setting up a showdown in the conference committee.  Cutting benefits for people with criminal convictions is a particularly mean display of “tough on crime” credentials and makes little sense as public policy.

In a study I directed at Harvard, a research team followed 122 men and women from Boston over the year after their release from prison.  Unlike many other states, Massachusetts allows people with criminal convictions to receive SNAP benefits.  The study found this was essential for income support and social integration immediately after release from prison.

Income right after incarceration is very low.  In the study, the median annual income was about $6,500.  This is about half the federal poverty line for people living alone, an income level that researchers call deep poverty....  Our respondents usually contributed their SNAP benefits to the household food budget if they were living with family or were required to turn over their benefits to a common pool if they lived in a shelter or a sober house.  Supporters of the House bill think people should work for SNAP benefits, but we found that the highest rates of SNAP enrollment were among those with disabilities that limited work.  Respondents with histories of mental illness and drug addiction were also more likely to be receiving SNAP than others. Former prisoners who were older, over age 45, or suffered from chronic pain were also more likely to be receiving SNAP benefits.

We also found little evidence that SNAP benefits deterred from people from working.  SNAP recipients were no more likely to be unemployed once age and health status were accounted for in the study.  Massachusetts has relatively good safety net programs, and these made a significant difference for the men and women leaving prison in Boston.

Besides receiving SNAP benefits, nearly everyone we interviewed in the study was enrolled in Medicaid either just before they were released from prison or a few weeks later. Medicaid was critical for ensuring continuity of medical care for the many people leaving prison with chronic conditions in immediate need of medication....  A year after release from prison, the rate of SNAP enrollment in the study had fallen to 40 percent from its peak at two months of 70 percent.  SNAP provided critical support that helped stabilize life after incarceration and allowed those who were able to move into the labor market to find work. The Massachusetts safety net was one of the real success stories of the study....

As Congress considers the final bill for SNAP funding, lawmakers should take account of the research evidence. A strong safety net is indispensable for helping people find their way back in life after incarceration and is one of the best reentry programs of all.

July 5, 2018 in Collateral consequences, Reentry and community supervision, Who Sentences | Permalink | Comments (3)

Tuesday, July 03, 2018

"Study after study shows ex-prisoners would be better off without intense supervision"

The title of this post is the title of this notable new Brookings commentary authored by Jennifer Doleac.  I recommend the piece in full, and here is how it starts and concludes:

Two-thirds of those released from prison are re-arrested within three years.  This incarceration cycle hurts families and communities — and also costs a lot of money. Governments and nonprofits have tried many programs to reduce recidivism, but most are not successful.  In a recent review of the literature on prisoner reentry, I summarized the best evidence on how to improve the lives of the formerly incarcerated.  One of the most striking findings was that reducing the intensity of community supervision for those on probation or parole is a highly cost-effective strategy.  Several studies of excellent quality and using a variety of interventions and methods all found that we could maintain public safety and possibly even improve it with less supervision — that is, fewer rules about how individuals must spend their time and less enforcement of those rules.  Less supervision is less expensive, so we could achieve the same or better outcomes for less money.

For instance, Hennigan, et al. (2010), measured the effects of intensive supervision using a randomized controlled trial (RCT) in Los Angeles.  Juveniles sentenced to probation were randomly assigned to intensive supervision—in the form of a community-based after-school program—or standard probation.  Five years later, there were no significant differences in outcomes between the treatment and control groups, with one exception: Low-risk boys (ages 15 or younger) who were randomized to intensive supervision were worse off. Intensive supervision for that group led to more incarceration and a higher likelihood of continued criminal justice involvement in the years ahead.  That is, intensive supervision increased criminal activity by this group, without reducing criminal activity by other groups.

Barnes, et al. (2012) used an RCT to study supervision levels in Philadelphia.  Low-risk probationers were randomized to probation as usual or low-intensity supervision by parole officers with high caseloads (which forced them to pay less attention to each individual case).  Less supervision means probationers may be less likely to get caught for technical violations, such as using drugs or breaking curfew.  But these requirements of probation are a means to an end: what really matters for public safety is the number of new offenses committed.  Eighteen months after randomization, there were no significant differences between the treatment and control groups in the likelihood of being charged for a new offense.  In other words, low-intensity supervision did not result in more recidivism....

These studies show that current efforts to reduce recidivism through intensive supervision are not working.  Why is intensive supervision so ineffective?  Requiring lots of meetings, drug tests, and so on can complicate a client’s life, making it more difficult to get to work or school or care for family members (meetings are often scheduled at inconvenient times and may be far away).  A heavy tether to the criminal justice system can also make it difficult for individuals to move on, psychologically.  Knowing that society still considers you a criminal may make it harder to move past that phase of your life.  These difficulties may negate the valuable support that probation and parole officers can provide by connecting clients to services and stepping in to help at the first sign of trouble.

It is unclear what the optimal level of supervision is for those on parole or probation, but these studies demonstrate that current supervision levels are too high.  We could reduce the requirements of community supervision — for low-risk and high-risk offenders alike — and spend those taxpayer dollars on more valuable services, such as substance abuse treatment or cognitive behavioral therapy.  This would be a good first step toward breaking the vicious incarceration cycle.

July 3, 2018 in Collateral consequences, Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (1)

Monday, July 02, 2018

Rich new issues of Federal Sentencing Reporter covers "Managing Collateral Consequences in the Information Age"

The fine folks over at the Collateral Consequences Resource Center reminded me through this new post that the big new double issue of the Federal Sentencing Reporter is right now fully available on-line here thanks to the fine folks at the University of California Press. Here is how the CCRC folks summarize the issue's coverage:

“Managing Collateral Consequences in the Information Age” is the title of a symposium issue of the Federal Sentencing Reporter.  It is composed of papers prepared for a conference on criminal records issues jointly sponsored by the American Law Institute and the National Conference of State Legislatures in January 2018, and associated primary source materials. The issue’s Table of Contents shows the breadth and variety of topics covered.  An introductory essay by Margaret Love summarizes the approach to managing collateral consequences in the revised sentencing articles of the Model Penal Code, and the seemingly contrary trends in records management in state legislatures in recent years. She also describes each of the papers.

This special double issue of FSR contains so much interesting an diverse material, I recommend readers check out the TOC and Introductory essay to decide which articles they want to read first.

This issue includes the final version of of my recent paper titled "Leveraging Marijuana Reform to Enhance Expungement Practices."  Another piece focused on particular types of offenders is authored by Nora Demleitner under the title "Structuring Relief for Sex Offenders from Registration and Notification Requirements: Learning from Foreign Jurisdictions and from the Model Penal Code: Sentencing."  But the bulk of the of the materials in the issue covers individual state reforms in states that are not often at noticed to be at the forefront of criminal justice reforms efforts.  Specifically, a set of pieces look at Indiana's new expungement laws, and other piece look closely at other states including Nevada, North Carolina and Tennessee.

July 2, 2018 in Collateral consequences, Recommended reading, Reentry and community supervision | Permalink | Comments (0)

Monday, June 18, 2018

Attorney General Sessions laments state recidivism data and impact of Johnson ACCA ruling

Attorney General Jeff Sessions today delivered these remarks to the National Sheriffs' Association Annual Conference, and his comments covered lots of criminal justice ground that I do not recall him previously speaking about directly. The speech is worth reading in full because of all it reveals about how AG Sessions' looks at crime and criminals, and here are just some of the comments that caught my attention:

This is a difficult job, but when rules are fairly and consistently enforced, life is better for all — particularly for our poor and minority communities.  Most people obey the law. They just want to live their lives. They’re not going to go out and commit violent crimes or felonies.

As my former boss, President Reagan used to say, “Most serious crimes are the work of a relatively small group of hardened criminals.”  That is just as true today as it was back then.  That’s why we’ve got to be smart and fair about how we identify criminals and who we put behind bars and for how long....

I want to call your attention to something important.  A few weeks ago, the Department of Justice’s Bureau of Justice Statistics released a new report on the recidivism rate of inmates released from state prisons in 30 states.  This is the longest-term study that BJS has ever done on recidivism and perhaps the largest.  It was designed by the previous administration. The results are clear and very important. The results are of historic importance.  The reality is grim indeed.

The study found that 83 percent of 60,000 state prisoners released in 2005 were arrested again within nine years.  That’s five out of every six.  The study shows that two-thirds of those — a full 68 percent — were arrested within the first three years. Almost half were arrested within a year — one year — of being released.

The study estimates that the 400,000 state prisoners released in 2005 were arrested nearly 2 million times during the nine-year period — an average of five arrests each.  Virtually none of these released prisoners were arrested merely for probation or parole violations: 99 percent of those arrested during the 9-year follow-up period were arrested for something other than a probation or parole violation.

In many cases, former inmates were arrested for an offense at least as serious — if not more so — as the crime that got them in jail in the first place. It will not surprise you that this is often true for drug offenders.

Many have thought that most drug offenders are young experimenters or persons who made a mistake.  But the study shows a deeper concern.  Seventy-seven percent of all released drug offenders were arrested for a non-drug crime within nine years.  Presumably, many were arrested for drug crimes also.  Importantly, nearly half of those arrests were for a violent crime. We can’t give up....

This tells us that recidivism is no little matter.  It is a fact of life that must be understood.  But overall, the good news is that the professionals in law enforcement know what works in crime.  We’ve been studying this and working on this for 40 years.

From 1964 to 1980, the overall violent crime rate tripled.  Robbery tripled. Rape tripled.  Aggravated assault nearly tripled. Murder doubled.  And then, from 1991 to 2014, violent crime dropped by half. Murder dropped by half.  So did aggravated assault.  Rape decreased by more than a third, and robbery plummeted by nearly two-thirds.

That wasn’t a coincidence.  Between that big rise in crime and that big decline in crime, President Reagan and the great Attorney General Ed Meese went to work.  There was the elimination of parole, the Speedy Trial Act, the elimination of bail on appeal, increased bail for dangerous criminals before trial, the issuing of sentencing guidelines, and in certain cases, mandatory minimum sentences.

We increased funding for the DEA, FBI, ATF, and federal prosecutors. And most states and cities followed Reagan’s lead.  Professionalism and training dramatically increased in local law enforcement.  These were the biggest changes in law enforcement since the founding of this country.  These laws were critical to re-establishing public safety.

When a criminal knows with certainty that he is facing hard time, he is a lot more willing to confess and cooperate with prosecutors.  On the other hand, when the sentence is uncertain and up to the whims of the judge, criminals are a lot more willing to take a chance....

The certainty of a significant and fixed sentence helps us get criminals to hand over their bosses, the kingpins and the cartel leaders — and helps remove entire gangs and criminals from the street.  Left unaddressed these organizations only get richer, stronger, more arrogant and violent placing whole neighborhoods in fear.

Law enforcement officers understand that. Sheriff Eavenson and NSA have been critical allies in the fight to preserve mandatory minimums for a long time — and I want to thank you for your strong advocacy.  Many doubt their value.  Maybe this is obvious, but a recidivist can’t hurt the community if he is incarcerated.  A lot of people who would have committed crimes in the 1990s and 2000s didn’t because they were locked up.  Murders were cut in half after 1980....

Look, our goal is not to fill up the prisons.  Our goal is to reduce crime and to keep every American safe.  We should not as a policy keep persons in prison longer than necessary. But clear and certain punishment does in fact make America safer....

One of the most important laws that President Reagan signed into law was the Armed Career Criminal Act.  That’s the law that requires a minimum 15- year sentence for felons caught with a firearm after their third robbery or burglary conviction.

These are not so-called “low-level, nonviolent drug offenders” who are being picked on.  These are criminals who have committed multiple serious offenses.  In 2015 — after 30 years on the books — one critical line of the law was struck down by the Supreme Court as being too vague.

But because of this impactful ruling, every federal prosecutor lost one of their most valuable tools and they ask me for help regularly.  Just one example is Jeffrey Giddings of Oregon.  He had more than 20 convictions since 1991. He was let out of jail after the Court ruling and only 18 days later shot a police officer and held two fast food employees hostage.  He has now been sentenced to another 30 years in prison.  And the last thing he did before being put back in jail was to lash out in a tirade of profanity at police....

More than 1,400 criminals — each convicted of three felonies — have been let out of jail in the three years since the Court ruling.  And so far, more than 600 have been arrested again.

On average, these 600 criminals have been arrested three times since 2015.  A majority of those who have been out of prison for two years have already been arrested again. Here in Louisiana, nearly half of the released ACCA offenders released because of this court ruling have already been rearrested or returned to federal custody....

In this noble calling, all of us in this room are leaders. The NSA is fulfilling its responsibility in this regard. We must communicate sound principles to our policy leaders and to the American people when it comes to reducing crime:

  • A small number of people commit most of the crimes;
  • Those who are jailed for crimes are very likely to commit more crimes—often escalating to violent crimes — after their release; and
  • Congress and our legislatures must consider legislation that protects the public by ensuring that we incapacitate those criminals and deter others

And so the point is this: we should always be looking for effective and proven ways to reduce recidivism, but we must also recognize that simply reducing sentences without reducing recidivism unfairly creates more victims.

This Department of Justice under President Trump is committed to working with you to deliver justice for crime victims and consequences to criminals. We want to be a force multiplier for you.

The President has ordered us to back the women and men in blue and to reduce crime in America. And that’s what we intend to do. We embrace that mission and enforce the law with you.

There is a bit of rich irony to the Attorney General extolling the importance and value of "clear and certain punishment" just before lamenting a SCOTUS ruling that struck down a punishment as too vague to be clear or certain in any way.  That irony aside, I am not at all surprised to see him highlight the depressing new data, first blogged in this prior post, revealing terrible recidivism numbers among those released from state prisons in 2005.  I am not sure from where the ACCA-post-Johnson-release recidivism data comes, but I am sure all these numbers fuel the AG's belief that we should always be inclined to (over-)incarcerate in efforts to improve public safety.

June 18, 2018 in Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences | Permalink | Comments (2)