Thursday, July 29, 2021

BJS releases notable new recidivism data for 2012-released state prisons

The Bureau of Justice Statistics released this notable new report about the recidivism rates over five years for a set of state prisoners released in 2012. The full title of the 34-page report is "Recidivism of Prisoners Released in 34 States in 2012: A 5-Year Follow-Up Period (2012–2017)." Here is the introduction and "Highlights" from the first page of the report:

Among state prisoners released in 2012 across 34 states, 62% were arrested within 3 years, and 71% were arrested within 5 years.  Among prisoners released in 2012 across 21 states with available data on persons returned to prison, 39% had either a parole or probation violation or an arrest for a new offense within 3 years that led to imprisonment, and 46% had a parole or probation violation or an arrest within 5 years that led to imprisonment.

The Bureau of Justice Statistics (BJS) used prisoner records from the National Corrections Reporting Program and criminal history data to analyze the post-release offending patterns of former prisoners both within and outside of the state where they were imprisoned.  This study randomly sampled about 92,100 released prisoners to represent the approximately 408,300 state prisoners released across 34 states in 2012.  These 34 states were responsible for 79% of all persons released from state prisons that year nationwide.

HIGHLIGHTS

  • About 6 in 10 (62%) prisoners released across 34 states in 2012 were arrested within 3 years, and 7 in 10 (71%) were arrested within 5 years. „
  • Nearly half (46%) of prisoners released in 2012 returned to prison within 5 years for a parole or probation violation or a new sentence. „
  • Eleven percent of prisoners released in 2012 were arrested within 5 years outside of the state that released them. „
  • Eighty-one percent of prisoners age 24 or younger at release in 2012 were arrested within 5 years of release, compared to 74% of those ages 25 to 39 and 61% of those age 40 or older. „
  • During the 5-year follow-up period, an estimated 1.1 million arrests occurred among the approximately 408,300 prisoners released in 2012. „
  • Sixty-two percent of drug offenders released from prison in 2012 were arrested for a nondrug crime within 5 years. „
  • The annual arrest percentage of prisoners released in 2012 declined from 37% in Year 1 to 26% in Year 5. „ Of prisoners released in the 19 states in the 2005, 2008, and 2012 recidivism studies, the percentage arrested within 5 years declined from 77% of 2005 releases, to 75% of 2008 releases, to 71% of 2012 releases.

July 29, 2021 in National and State Crime Data, Reentry and community supervision | Permalink | Comments (0)

Sunday, July 25, 2021

"The Boundary Problem of Rights Restoration"

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

By conditioning restoration of felons’ political rights on the repayment of legal financial obligations, states have kept millions of potential voters from participating politically — profoundly altering the shape of the American electorate. Courts have universally upheld the practice by treating the conferral of political rights to nonmembers of the political community as an exercise of legislative grace subject to few constraints, while critics argue that the practice conditions political participation on wealth status and is therefore subject to heightened review.

This Essay traces the disagreement back to a first-order question that has gone overlooked by both sides: how should the juridical status of a disenfranchised citizen’s “lost” rights be understood?  The conventional position, which I call “depoliticization,” imagines that a sentence of disenfranchisement casts a citizen outside the democratic community, thereby voiding all prospective constitutional interests predicated on political membership. However, disenfranchisement is better characterized as the subordination — not the wholesale elimination — of a citizen’s constitutional interests in voting or otherwise participating politically, just as incarceration suppresses but does not eliminate a person’s constitutional interest in physical liberty.  It follows that rights restoration is not the conferral of a new statutory benefit to a political outsider, as courts have assumed, but instead marks the endpoint of state-sustained subordination.

Redescribing the disenfranchisement-to-restoration process in this way aligns with the Richardson Court’s reading of Section 2 of the Fourteenth Amendment, resolves a number of doctrinal contradictions, and — most critically for future litigation challenges — sharpens the constitutional symmetry between fee-based restoration and paradigmatic forms of wealth discrimination like poll taxes and debtors’ prisons.  By framing re-enfranchisement as a constitutional default and drawing attention to disenfranchised citizens’ enduring claim to political presence, this account may also be of use in popular restoration efforts currently underway outside the courts.

July 25, 2021 in Collateral consequences, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Monday, July 19, 2021

NIJ releases new publication with "Guidelines for Post-Sentencing Risk Assessment"

Via this webpage, headed "Redesigning Risk and Need Assessment in Corrections," the National Institute of Justice discusses its notable new publication titled "Guidelines for Post-Sentencing Risk Assessment."  Here is how the webpage sets up the full publication:

Over the past several decades, the use of RNA in correctional systems has proliferated. Indeed, the vast majority of local, state, and federal correctional systems in the United States now use some type of RNA. Despite the numerous ways in which RNA instruments can improve correctional policy and practice, the kind of RNA currently used across much of the country has yet to live up to this promise because it is outdated, inefficient, and less effective than it should be.

In an effort to help the corrections field realize the full potential of RNA instruments, NIJ recently released Guidelines for Post-Sentencing Risk Assessment.  These guidelines, assembled by a trio of corrections researchers and practitioners, are built around four fundamental principles for the responsible and ethical use of RNAs: fairness, efficiency, effectiveness, and communication.  Each of these principles contributes to an innovative, practical checklist of steps practitioners can use to maximize the reliability and validity of RNA instruments.

Here is part of the executive summary from the full report:

Risk and needs assessment (RNA) tools are used within corrections to prospectively identify those who have a greater risk of offending, violating laws or rules of prison or jail, and/ or violating the conditions of community supervision.  Correctional authorities use RNA instruments to guide a host of decisions that are, to a large extent, intended to enhance public safety and make better use of scarce resources.  Despite the numerous ways in which RNA instruments can improve correctional policy and practice, the style and type of RNA currently used by much of the field has yet to live up to this promise because it is outdated, inefficient, and less effective than it should be.

In an effort to help the corrections field realize the potential that RNA instruments have for improving decision-making and reducing recidivism, we have drawn upon our collective wisdom and experience to identify four principles that are critical to the responsible and ethical use of RNAs.  Within each principle is a set of guidelines that, when applied in practice, would help maximize the reliability and validity of RNA instruments.  Because these guidelines comprise novel, evidence-based practices and procedures, the recommendations we propose in this paper are relatively innovative, at least for the field of corrections.

■ The first principle, fairness, holds that RNA tools should be used to yield more equitable outcomes. When assessments are designed, efforts should be taken to eliminate or minimize potential sources of bias, which will mitigate racial and ethnic disparities. Preprocessing, in-processing, and post-processing adjustments are design strategies that can help minimize bias. Disparities can also be reduced through the way in which practitioners use RNAs, such as delivering more programming resources to those who need it the most (the risk principle). Collectively, this provides correctional agencies with a strategy for achieving better and more equitable outcomes.

■  The second principle, efficiency, indicates that RNA instruments should rely on processes that promote reliability, expand assessment capacity, and do not burden staff resources. The vast majority of RNAs rely on time-consuming, cumbersome processes that mimic paper and pencil instruments; that is, they are forms to be completed and then manually scored by staff. The efficiency of RNA tools can be improved by adopting automated and computer-assisted scoring processes to increase reliability, validity, and assessment capacity. If RNA tools must be scored manually, then inter-rater reliability assessments must be carried out to ensure adequate consistency in scoring among staff.

■  RNA instruments should not only be fair and efficient, but they should also be effective, which is the third key principle. The degree to which RNA instruments are effective depends largely on their predictive validity and how the tool is used within an agency. Machine learning algorithms often help increase predictive accuracy, although developers should test multiple algorithms to determine which one performs the best. RNA tools that are customized to the correctional population on which they are used will deliver better predictive performance.

■  Finally, it is important to focus on the implementation and use of RNAs so that individuals can become increasingly aware of their risk factors. To this end, the fourth key principle is to employ strategies that improve risk communication. Training the correctional staff who will be using the RNA tool is essential for effective communication, particularly in how to explain the needs and translate it into a case plan. A risk communication system, which includes case plan improvement, treatment-matching algorithms, and graduated sanctions and incentives, provides an integrated model for decision-making that helps increase an individual’s awareness of their own circumstances and need for programming.

July 19, 2021 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Technocorrections, Who Sentences | Permalink | Comments (0)

Thursday, July 01, 2021

"Sex Offender Registration and Community Notification Laws: An Empirical Evaluation"

The title of this post is the title of this new book of essays.  I reached out to the editors of this text to provide a bit of background and context for this new volume:

Sex offender registration and community notification (SORN) surely numbers among the most significant social control methods of the past several decades. Although the Supreme Court in 2003 rejected two constitutional challenges to SORN laws (Connecticut Dept. of Public Safety v. Doe and Smith v. Doe), of late courts, including the Sixth Circuit Court of Appeals (Does v. Snyder, 2016), have cast a more critical eye, invalidating new generation SORN laws that have become more onerous and expansive in their reach. 

Since its origin in the early 1990s, basic questions have existed regarding the effects of SORN, including whether it actually achieves its intended purpose of reducing sexual offending. Cambridge University Press has just published a new book, edited by Professors Wayne A. Logan and J.J. Prescott, containing chapters from the nation’s leading social science researchers on the many important empirical questions surrounding SORN.  As readers might be aware, the American Law Institute, as part of its overhaul of the Model Penal Code’s sex offense-related provisions, has tentatively approved a slate of reforms advocating a vastly reduced approach to registration and discontinuation of community notification.  The book promises to be an invaluable resource as policy-makers begin to consider whether SORN laws should be retooled or perhaps done away with altogether. Here is the SSRN link and abstract for the book:

Despite being in existence for over a quarter century, costing multiple millions of dollars and affecting the lives of hundreds of thousands of individuals, sex offender registration and notification (SORN) laws have yet to be subject to a book-length treatment of their empirical dimensions, examining their premises, coverage, and impact on public safety.  This volume, edited by Professors Wayne A. Logan and J.J. Prescott, assembles the leading researchers in the field to provide an in-depth look at what have come to be known as “Megan’s Laws,” offering a social science-based analysis of one of the most important and controversial criminal justice system initiatives undertaken in modern times. The editors attach the title page, table of contents, and preface of the volume.

July 1, 2021 in Collateral consequences, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (0)

Monday, June 28, 2021

Still more great new essays in Brennan Center's "Punitive Excess" series

highlighted here a few months a terrific new essay series assembled by the Brennan Center for Justice under the title "Punitive Excess."  I am pleased to see that new essays are continuing to be added to the series now on a weekly basis, and here are the three most recent entries everyone should be sure to check out:

Prior related posts:

June 28, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (0)

Sunday, June 27, 2021

Why aren't there much stronger calls for CONGRESS to fix post-pandemic home confinement problems?

In many prior posts (some linked below), I have discussed the Office of Legal Counsel memo released at the end of the Trump Administration which interprets federal law to require that certain persons transferred to home confinement pursuant to the CARES Act be returned to federal prison when the pandemic ends.  I see that there are two more notable new press articles on this topic:

From The Hill, "Biden faces criticism for not extending home confinement for prisoners"

From the Washington Post, "A grandmother didn’t answer her phone during a class. She was sent back to prison."

The somewhat scattered Post article focuses on persons sent from home confinement back into federal prison for minor technical violations while also noting that the Biden Administration could seek to rescind the OLC memo or use clemency powers to keep folks home after the pandemic is deemed over.  The lengthy Hill article is more focused on the political discussion around this issue, but my post title reflects my growing frustration with this discourse.  Here are excerpts:

President Biden is under fire for not announcing an extension of a home confinement program for prisoners that was started during the coronavirus pandemic.  Progressives and criminal justice advocates have pressured the administration for months to rescind a Trump-era policy that kills the program when the pandemic ends.  They are frustrated that Biden's remarks this week didn’t address it....

Rep. Bonnie Watson Coleman (D-N.J.), who led a letter of 28 House Democrats in April calling for the policy to be rescinded, “is disappointed he hasn’t officially extended the home confinement program,” a spokesperson said....

The home confinement program during the coronavirus pandemic was launched in response to the CARES Act in March and directed the federal Bureau of Prisons to prioritize home confinement for certain inmates in an effort to limit the spread of the coronavirus.  Roughly 24,000 inmates since have been sent to home confinement.

In the final days of the Trump administration, the Justice Department's Office of Legal Counsel issued a memo stating that under federal law, those inmates released under the CARES Act must report back to prison when the coronavirus emergency is over, unless they are nearing the end of their sentence.  Biden and Attorney General Merrick Garland could rescind that policy....

Advocates also argue that those inmates transferred to home confinement have been monitored and largely have not violated the conditions of their situation. “If they’re so low risk and they haven’t violated the conditions, it’s hard to imagine any reason why they should be sent back,” said Maria Morris, senior staff attorney at the ACLU National Prison Project, adding that it would be a “ridiculous waste of resources.”

Many of the inmates placed in home confinement are elderly or in a vulnerable situation due to COVID-19, which posed a threat to them if they stayed inside a prison.  [Holly] Harris calls it “bad government” to send those inmates back to prisons. “At this point, the president just needs to grant them clemency and let them move on.  They are out because the Trump Administration felt it was safe enough to let them go home.  What more cover does he need?” she said.

I agree entirely with advocates saying it would be "bad government" and a "ridiculous waste of resources" to send back to prison thousands of vulnerable people who have been successful serving their sentences at home during the pandemic.  But I do not think it entirely right to describe the OLC memo as a "Trump-era policy" that is readily changed by the Biden Administration.  The OLC memo is not really a "policy" document; it is an elaborate interpretation of how the CARES Act alters BOP authority to place and keep persons in home confinement.  Though the OLC statutory interpretation requiring a return of persons to federal prison is debatable, the fact that this interpretation of the CARES Act amounts to bad policy does not itself give the Biden Administration a basis to just ignore statutory law.

Of course, statutory law notwithstanding, Prez Biden could (and I think should) use his clemency authority to extended home confinement for those at risk of being sent back to federal prison post-pandemic.  But if members of Congress are "disappointed" that the home confinement program is not being extended, they should amend the CARES Act to do exactly that with an express statutory provision!  This difficult issue stems from the text of the CARES Act; if the statutory text Congress passed when COVID first hit now is clearly operating to creates wasteful, bad government, Congress can and should fix that statutory text.  Put simply, this matter is a statutory problem that calls for a statutory fix. 

I surmise that advocates (not unreasonably) assume that getting a gridlocked Congress to "fix" this CARES Act home confinement problem through statutory reform is much less likely than achieving some other fix through executive action.  But, as I see it, exclusive focus on executive action to fix what is fundamentally a statutory problem itself contributes to legislative gridlock.  Indeed, I am more inclined to criticize the Biden Administration for not urging Congress to fix this CARES Act problem, especially because the notable success of home confinement policies during the pandemic could and should justify statutory reforms to even more broadly authorize ever greater use of home confinement in "normal" times.

Notably, three sentencing-related bill made their way through the Senate Judiciary Committee earlier this month (basics here).  Because I am not an expert on either legislative procedure or inside-the-Beltway politics, I do not know if it would be easy or impossible to include add "home confinement fix" to one of these bills.  But I do know that I will always want to believe that Congress at least has the potential to fix problems of its own creation.  But, as this post is meant to stress, I think it important not too lose sight of the fact that this is a fundamentally a congressional problem, not a presidential one.      

Some prior recent related posts:

UPDATE:  Achieving a media troika, the New York Times also published this lengthy article on this topic under the headline "Thousands of Prisoners Were Sent Home Because of Covid. They Don’t Want to Go Back."  Like the Post article, this piece is a bit scattered in its focus while also directing most of the attention on the Justice Department and Biden Administration rather than highlighting Congress's critical role in this story.  This passage is especially notable:

Changing the prison system is one of the few areas that has drawn bipartisanship agreement in Washington. Senator Charles E. Grassley, Republican of Iowa, joined Democrats in criticizing the Justice Department memo, which was issued in January.

“Obviously if they can stay where they are, it’s going to save the taxpayers a lot of money,” Mr. Grassley said at the hearing [before the Senate Judiciary Committee in April]. “It will also help people who aren’t prone to reoffend and allows inmates to successfully re-enter society as productive citizens.”

The next sentence of this article, if it were telling the full story, should at the very least note that Congress could "fix" the OLC memo through a simple statutory change. I agree with Senator Grassley that it would be wrong to send all these folks back to prison after they have done well on home confinement, and so I think Senator Grassley should get together with his pals on the Capital Hill and pass a statute to that the law no longer could be interpreted to require sending them all back to prison at taxpayer expense.

June 27, 2021 in Clemency and Pardons, Criminal justice in the Biden Administration, Criminal justice in the Trump Administration, Impact of the coronavirus on criminal justice, Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, June 23, 2021

Biden Administration stresses reentry in its new public safety efforts

I was intrigued to see that the new "strategy" to combat gun violence announced today by the White House includes significant discussion of reentry issues.  This fact sheet, titled "Biden-Harris Administration Announces Comprehensive Strategy to Prevent and Respond to Gun Crime and Ensure Public Safety," includes a bunch of items under the heading "Help formerly incarcerated individuals successfully reenter their communities."  Here are the headings of items discussed thereunder:

Investments to help formerly incarcerated individuals find quality jobs. 

Expanding Federal Hiring of Formerly Incarcerated Persons.

Implementing “ban the box” policy.

Hiring Second Chance Act Fellow.

Leveraging tax credits to incentivize hiring of formerly incarcerated individuals. 

Addressing the housing needs of returning citizens. 

This extended CNN piece discusses the initiative more generally, providing this summary:

The crime prevention strategy institutes a number of measures among federal agencies and it also relies on allowing states to use American Rescue Plan dollars for more flexible applications, including hiring law enforcement above pre-pandemic levels or using the funds toward community violence intervention programs.

According to the White House, Biden's "Comprehensive Strategy to Prevent and Respond to Gun Crime and Ensure Public Safety" will focus on five main pillars: stem the flow of firearms used to commit violence, including by holding rogue firearms dealers accountable for violating federal laws; support local law enforcement with federal tools and resources to help address summer violent crime; invest in evidence-based community violence interventions; expanding summer programming, employment opportunities, and other services and supports for teenagers and young adults; and help formerly incarcerated individuals successfully reenter their communities.

June 23, 2021 in Criminal justice in the Biden Administration, Reentry and community supervision | Permalink | Comments (0)

Tuesday, June 22, 2021

"Dead Man Waiting: A brief profile of deaths in Texas prisons among people approved for parole release"

The title of this post is the title of this remarkable new report that provides a critical reminder the "being paroled" is a nuanced (and not-always-life -saving) reality in Texas.  Here is the report's abstract which also discusses its origin and authors:

A troubling number of people in Texas prisons and jails who have been approved for release on parole are dying in custody before they ever step foot outside prison gates, according to a new report from the Lyndon B. Johnson School of Public Affairs at The University of Texas at Austin. In a first-of-its-kind analysis, “Dead Man Waiting,” shows that while deaths among parole-approved people increased during the COVID period, this population was already dying in large numbers from other chronic health issues while awaiting release.  The findings in this report raise serious questions about the state’s parole system and why people who met the Texas Board of Pardons and Parole (BPP)’s stringent approval guidelines could end up dead before their release.  Researchers offer recommendations for safely releasing this population immediately after parole approval. This report was produced as part of the COVID, Corrections, and Oversight Project at the Lyndon B. Johnson School of Public Affairs, with support from Arnold Ventures. The COVID, Corrections, and Oversight Project is led by Michele Deitch, Project Director, and Alycia Welch, Associate Director.

Here are just a few paragraphs from the first part of the short report:

There are more than 10,700 people in Texas prisons who have been approved for release on parole but remain in custody.  This number represents nearly one-tenth of the entire Texas prison population. Despite being approved for parole, some of these people will never walk out the prison gates because they die while waiting for release....

In any given month before COVID, people remained in Texas prisons for an average of 3 to 4 months after their parole approval before they were released.  During the COVID pandemic, the typical delay in release ranged from 5 to 11 months; the overall average was 6 months.

Between March 2020, when TDCJ locked down its facilities due to COVID, and March 2021, at least 42 people who were approved for release on parole died in Texas prisons. These are people who BPP determined are safe enough to be released by a certain date or pending the completion of a required program.  They met some of the nation’s most burdensome standards for parole approval and yet they still died behind bars while awaiting their release.

June 22, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (0)

Friday, June 18, 2021

"The Mark of Policing: Race and Criminal Records"

The title of this post is the title of this recent piece authored by Eisha Jain published in the Stanford Law Review Online. Here is its abstract:

This Essay argues that racial reckoning in policing should include a racial reckoning in the use of criminal records.  Arrests alone — regardless of whether they result in convictions — create criminal records.  Yet because the literature on criminal records most often focuses on prisoner reentry and on the consequences of criminal conviction, it is easy to overlook the connections between policing decisions and collateral consequences.  This Essay employs the sociological framework of marking to show how criminal records entrench racial inequality stemming from policing.  The marking framework recognizes that the government creates a negative credential every time it creates a record of arrest as well as conviction.  Such records, in turn, trigger cascading consequences for employment, housing, immigration, and a host of other areas.  The credentialing process matters because it enables and conceals race-based discrimination, and because a focus on the formal sentence often renders this discrimination invisible.  This Essay considers how adopting a credentialing framework offers a way to surface, and ultimately to address, how race-based policing leaves lasting marks on over-policed communities.

June 18, 2021 in Collateral consequences, Race, Class, and Gender, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Spotlighting many challenges "winning the peace" after drug decriminalization reform in Oregon

As we mark 50 years waging the drug war in the United States, legal reforms and polls make clear that Americans are eager to embrace public health rather than punitive responses to drug activity.  But a growing political will to end the "war on drugs" does not instantly create a practical way forward.  Growing interest in ending the drug war makes it critical for policy markers and advocates to focus on "winning the peace" as we move beyond criminalization models.  But new NPR article, headlined "Oregon's Pioneering Drug Decriminalization Experiment Is Now Facing The Hard Test," highlights the many challenges lie ahead.  I recommend the piece in the full, and here are excerpts:

Oregonians overwhelmingly passed Measure 110 that makes possession of small amounts of cocaine, heroin, LSD and methamphetamine, among other drugs, punishable by a civil citation — akin to a parking ticket — and a $100 fine. That fee can get waived if you get a health screening from a recovery hotline.

The measure, a major victory for advocates pushing for systemic change in U.S. drug policy, expands funding and access to addiction treatment services using tax revenue from the state's pot industry as well as from expected savings from a reduction in arrests and incarceration....

But five months since decriminalization went into effect, the voter-mandated experiment is running into the hard realities of implementation. Realizing the measure's promise has sharply divided the recovery community, alienated some in law enforcement and left big questions about whether the Legislature will fully fund the measure's promised expansion of care.

Even many recovery leaders here who support ending the criminalization of addiction are deeply concerned the state basically jumped off the decriminalization cliff toward a fractured, dysfunctional and underfunded treatment system that's not at all ready to handle an influx of more people seeking treatment. Advocates for decriminalization "don't understand the health care side, and they don't understand recovery," says Mike Marshall, co-founder and director of the group Oregon Recovers. "Our big problem is our health care system doesn't want it, is not prepared for it, doesn't have the resources for it and honestly doesn't have the leadership to begin to incorporate that [expanded treatment]," says Marshall, who is in long-term recovery himself....

Oregon supporters of decriminalization point to Portugal as a reform model. In 2001, Portugal dramatically changed its approach and decriminalized all drugs. The nation began treating addiction as a public health crisis. There, anyone caught with less than a 10-day supply of any drug gets mandatory medical treatment. But Marshall and others point out that Portugal took more than two years to transition carefully to a new system and replace judges, jails and lawyers with doctors, social workers and addiction specialists. "So we put the cart before the horse," he says. In fact, Marshall and others worry the treatment and harm reduction horse isn't even on its feet in Oregon, which is leaving too many stuck in a dangerous pre-treatment limbo and at potential risk of overdosing. "There were no resources and no mechanisms in [Measure] 110 to actually prepare the health care system to receive those folks," Marshall says.

"Most places that have successfully done decriminalization have already worked on a robust and comprehensive treatment system," says Dr. Reginald Richardson, director of the state Alcohol and Drug Policy Commission. "Unfortunately, here in Oregon, we don't have that. What we have is decriminalization, which is a step in the right direction."

There's also shockingly little state data to determine what programs work best or to track treatment outcomes and share best practices. There's also no agreed upon set of metrics or benchmarks to judge treatment efficacy, both in Oregon and nationally.

Prior recent related post:

June 18, 2021 in Criminal Sentences Alternatives, Drug Offense Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Friday, June 04, 2021

Encouraging examples of democracy expanding for those previously disenfranchised

I just saw this recent Stateline piece headlined "More States Expand the Ballot to Previously Incarcerated," which provides some positivity to close out this week.  Here are excerpts:

Building off two decades of advocacy work and the recent national push to overhaul the criminal justice system, 20 states now restore voting rights for people with felony convictions when they leave prison.  Energy around the restoration of voting rights continues to swell. But there remains sustained opposition, as critics insist people with felony convictions pay all fines and serve the entirety of their parole before regaining the right to vote.

New York and Washington enacted laws in the past two months that automatically restore voting rights to people convicted of felonies after they are released from prison. Virginia Gov. Ralph Northam, a Democrat, signed an executive order in March that restored voting rights for more than 69,000 eligible Virginians.  A proposed amendment to the Virginia state constitution could make that change permanent.  The legislature passed the amendment this session.  Lawmakers will have to pass it again in 2022 before it heads to voters for final approval.

A holdover from the 19th century, 5.2 million Americans are disenfranchised because of their felony convictions — some 2.3% of the nation’s voting age population, according to a 2020 count by the Sentencing Project, a Washington, D.C.-based organization that lobbies for the restoration of voting rights.  In 11 states, people with felony convictions lose their voting rights indefinitely, sometimes having to wait for a gubernatorial pardon, or navigate a gauntlet of waiting periods, fees and petitions.

Some critics of these new laws say people with felony convictions should serve the entirety of their sentences, including parole, probation and fines, before being able to cast a ballot again.  However, proponents of voting rights restoration after prison think accessing the ballot connects people with society, giving them ownership over their lives and the community, and possibly dissuading them from committing crimes in the future....

Certain states are going beyond reinstating voting rights for those with felony convictions once they leave prison. Some are scrapping laws that disenfranchise those voters in the first place.  In Oregon, lawmakers are debating measures that would amend a law that strips voting rights from people with felony convictions.  The District of Columbia, Maine and Vermont do not disenfranchise those with felony convictions even while in prison. Illinois also is debating legislation that would repeal the state’s ban on voting by incarcerated people.

The restoration of voting rights has drawn some bipartisan support. Last year, Iowa Gov. Kim Reynolds, a Republican, signed an executive order giving the right to vote to thousands of residents with felony convictions after completing parole or probation.  The legislature is working to amend the state’s constitution to make this change permanent.

In Kentucky, Republican state Rep. Jason Nemes is one of the co-sponsors of bipartisan legislation that would amend the state constitution to automatically restore voting rights for people with certain felony convictions after they complete their imprisonment, probation or parole.  Denying them the right to vote, he said, can make people attempting to rejoin society feel ostracized.  “When someone has committed an offense against the community and they served their time, we want that person back in the community,” he told Stateline.  “Now it’s time for you to take a sense of ownership and responsibility for your neighbors.” If the measure gets legislative approval, the proposed amendment will go before voters on the November 2022 ballot.

This proposal comes more than a year after Democratic Gov. Andy Beshear signed an executive order in 2019 that restored voting rights to an estimated 140,000 Kentuckians with nonviolent felony convictions who have completed their sentences.  A Mason-Dixon Polling & Strategy poll released in February shows more than two-thirds of Kentuckians support the automatic restoration of voting rights for people who finished their sentences.

But there is still opposition by many lawmakers around the country, most of them Republican, who say that some crimes are so heinous they merit lasting punishment such as disenfranchisement.  Others say that people with felony convictions should complete probation and parole periods, along with paying all fines, before they get their rights restored.  “Beyond voting rights, first comes responsibility,” said Washington state Rep. Jenny Graham, a Republican, during floor debate in February.  “When somebody makes a decision to harm or kill another individual, there is accountability that is due.”

After Florida voters passed a ballot initiative restoring voting rights to people convicted of felonies after they leave prison, Republican lawmakers, led by Gov. Ron DeSantis, rolled the measure partially back, insisting that people pay all fines before getting their rights returned.  This caused widespread confusion for many people who were formerly incarcerated, leaving them unsure whether they could vote in November’s presidential election. 

The Florida confusion illustrated the ongoing hurdles for voting rights activists: Once these laws are enacted, hurdles remain.  For example, informing recently released residents about their voting rights often falls on resource-limited community organizations, said Nicole Porter, director of advocacy at the Sentencing Project....

Lawmakers in Maryland this year introduced legislation that would require prison staff to provide voter registration information upon residents’ release from prison. It passed both houses of the Maryland legislature, though the chambers must now reconcile differences between their bills.  Such requirements are part of New York’s recent law. Local jails in Cook County, Illinois; Washington, D.C.; Los Angeles; and Philadelphia have implemented programs in recent years to inform incarcerated people of their voting rights and encourage voter registration, Porter said.

June 4, 2021 in Collateral consequences, Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (4)

Sunday, May 16, 2021

"Drug Supervision"

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

Criticism of harsh drug sentencing laws in the United States typically focuses on long prison sentences.  But our criminal justice system also inflicts a significant volume of drug-related punishment through community supervision — probation, parole, and supervised release.  Over one million people are under supervision due to a drug conviction, and drug violations are among the most common reasons for revocations. In an age of “mass supervision,” community supervision is a major form of drug sentencing and drug policy.

In this Article, I show that drug sentencing is central to the federal system of supervised release.  While Congress created supervised release as a program of transitional support for former prisoners, the system has instead become a drug- control network focused on public safety.  The mandatory revocation provision at 18 U.S.C. § 3583(g) in particular was designed to immediately imprison people with drug addiction at the first sign of drug use.  This targeting of drug activity for enhanced punishment is so extreme that it violates the jury right under the Supreme Court’s 2019 decision in United States v. Haymond.

May 16, 2021 in Collateral consequences, Criminal Sentences Alternatives, Drug Offense Sentencing, Procedure and Proof at Sentencing, Reentry and community supervision | Permalink | Comments (0)

Thursday, May 13, 2021

"Sentence Length and Recidivism: A Review of the Research"

The title of this post is the title of this notable new working paper authored by Elizabeth Berger and Kent Scheidegger of the Criminal Justice Legal Foundation.  Here is the paper's abstract:

In response to increasing concerns about jail and prison overcrowding, many officials and legislatures across the U.S. have undertaken different efforts aimed at reducing the prison population, such as reduced sentence lengths and early release of prisoners.  Thus, there is currently a high degree of public interest regarding how these changes in policy might affect recidivism rates of released offenders.  When considering the research on the relationship between incarceration and recidivism, many studies compare custodial with non-custodial sentences on recidivism, while fewer examine the impact of varying incarceration lengths on recidivism.  This article provides a review of the research on the latter.

While some findings suggest that longer sentences may provide additional deterrent benefit in the aggregate, this effect is not always consistent or strong.  In addition, many of the studies had null effects, while none of the studies suggested a strong aggregate-level criminogenic effect.  Overall, the literature on the impact of incarceration on recidivism is admittedly limited by important methodological considerations, resulting in inconsistency of findings across studies.  In addition, it appears that deterrent effects of incarceration may vary slightly for different offenders.  Ultimately, the effect of incarceration length on recidivism appears too heterogenous to be able to draw universal conclusions.  We argue that a deepened understanding of the causal mechanisms at play is needed to reliably and accurately inform policy.

May 13, 2021 in Data on sentencing, National and State Crime Data, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (0)

Friday, April 30, 2021

"A better path forward for criminal justice: A report by the Brookings-AEI Working Group on Criminal Justice Reform"

The title of this post is the title of this lengthy new report which, as the title explains, is a product of a working group of The Brookings Institution and The American Enterprise Institute for Public Policy Research.  In addition to the full pdf, one can also access each part of this report online here, and here is are the closing sentiments authored by Rashawn Ray and Brent Orrell in the report's conclusion:

As we prepare to exit pandemic conditions, we recommend a strategic pause to gather data that will help us understand why criminal activity has gone up and inform both immediate responses as well as longer-term reform initiatives. There will be a temptation – on both sides – to argue that the recent spike confirms their prior understandings and policy preferences; either that the recent burst of crime can be effectively controlled by a ratcheting up “tough-on-crime” policies and practices or that it is exactly these practices that create the predicate for crime surges by disrupting lives, families, and neighborhoods through excessive reliance on force and incarceration. We should resist both of these views while we strive for a better understanding of the forces driving and shaping patterns of criminal offenses. It is entirely possible, given the unprecedented conditions of the past 12 months, we will find ourselves surprised by what we learn.

As is often the case, we may need an “and” approach rather than an “or” approach. Policies need to address recent rises in crime and overpolicing. This is why our report focuses on the criminal justice as a whole. Policing is the entree to the criminal justice system that sorts people based on race, social class, and place. Most people do not want less policing. They want equitable policing, and equitable treatment once interacting with the criminal justice system, either as a victim or perpetrator.

The sources of criminal activity and public safety challenges are multifaceted while our responses to them are often singular: more and tougher policing, prosecution, and incarceration. Not every public order challenge is a nail in need of a hammer. If we are to honor the dignity of every person and respect the sanctity of human life, we need a more balanced and diversified approach that recognizes confrontation and coercion are not the only, and often not the best, strategies for protecting our communities. Research-informed innovation that builds a more flexible and effective toolbox of responses is needed to move us towards the more peaceful, flourishing, and just society that is the shared objective of conservatives and progressives alike.

The essays in this volume and the recommended supplemental readings provide much food for thought about the major areas of criminal justice reform that should be at the top of the nation’s agenda.  The recommendations are varied and informed by differing perspectives on how to better balance the requirements of community safety, civil liberty, policing and procedural protections, and supporting and achieving lasting changes in attitudes, behaviors, and outcomes among justice-involved individuals as befits a nation committed to the idea of rehabilitation and not just retribution.  The authors in this volume will continue convening to discuss, debate, and research these complex issues, with a shared goal of identifying ways to improve our country’s criminal justice system.  These are deeply interconnected issues requiring a thorough, thoughtful, and comprehensive response rather than an immediate reversion to long-held and -argued views that may fit recent history or current conditions. A nation that incarcerates so many at such a high cost in public resources and wasted human lives can ill-afford to do otherwise.

All the individual chapter should be of interest to folks concerned about all aspects of criminal justice reform, and these chapters ought to be of particular interest to those who follow sentencing and corrections issues closely:

April 30, 2021 in Prisons and prisoners, Recommended reading, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (0)

Thursday, April 29, 2021

"Reckless Lawmaking: How Debt-Based Driver's License Suspension Laws Impose Harm and Waste Resources"

The title of this post is the title of this new ACLU research report.  Here is the start of its executive summary:

There is a growing movement by advocates, organizers, and lawmakers to address the ineffective and unfair system and collection of court ordered monetary obligations, or “fines and fees.”  The system of fines and fees is inextricably linked to over-policing, criminalization, and mass incarceration.  While it is nearly impossible to know the exact number of people charged with fines and fees on an annual basis due in part to a lack of standardized data collection policies, a recent study estimated there could be well over 30 million cases for misdemeanors, violations, and infractions punishable by fines and fees filed per year.  That number does not even include civil traffic offenses.  The punishment for such offenses may include hundreds or thousands of dollars in fines and fees.

When people cannot afford to pay their fines and fees on time, a warrant may be issued for their arrest and/ or their driver’s license may be suspended.  People arrested on such warrants are typically brought to jail and held until they can see a judge.  If they still cannot pay, the cycle of criminalization continues.  The system of fines and fees not only criminalizes poverty, but also exacerbates racial disparities in policing and prosecution.

Driver’s license suspension for failure to pay or failure to appear in court (i.e. debt-based suspension) is one of the most commonly imposed sanctions.  This penalty is particularly harmful because of the sheer number of people affected and because of the way these suspensions lead to further penalties.  The severity of the punishment far outweighs the underlying offense, which may not even be related to driving.  Currently, all but three states (Idaho, Mississippi, and Virginia) suspend for either failure to pay and/or failure to appear.  As a result, at least 11 million people are not allowed to drive simply because they cannot afford to pay fines and fees, while people who can afford to pay are spared. And the brunt of these policies falls disproportionately on people of color, contributing to existing racial disparities in the criminal legal system.

Since 2017, California, Hawai′i, Idaho, Maine, Maryland, Michigan, Mississippi, Montana, New York, Oregon, Texas, Virginia, West Virginia, and D.C. have enacted legislative reforms to curb the practice of debt-based suspensions for either failure to pay or failure to appear.  As of the publication of this report, similar legislation has been proposed in 11 additional states.  Related legislation has also been introduced at the federal level.

Proposed legislation to end the harmful practice of debt-based suspensions is often met with a challenge: overcoming fiscal notes that mistakenly predict significant negative fiscal impacts from ending debt-based driver’s license suspensions.  Fiscal notes for bills to end debt-based driver’s license suspensions tend to rely on assumptions based on imprecise data and more importantly, do not account for a number of other relevant factors that could offset the revenue generated from fines and fees such as the cost of collecting and enforcing payment.  Furthermore, fiscal notes tend to deprioritize, and in some cases ignore altogether, the toll debt-based suspensions have on people affected by this policy.

In this report we highlight the individual and systemic costs that are often ignored in these types of fines and fees reform bills.  Specifically, this report discusses the penalty of suspending driver’s licenses as a consequence for unpaid fines and fees and the devastating consequences it imposes on impacted individuals.  We also make recommendations for lawmakers to more accurately consider the value of continuing to fund government services through predatory fines and fees in light of the consequent harm.

April 29, 2021 in Collateral consequences, Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Reentry and community supervision | Permalink | Comments (0)

Saturday, April 24, 2021

"Housing the Decarcerated"

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

The coronavirus pandemic exposed an issue at the intersection of the public health, carceral and housing crises — the lack of housing for the recently decarcerated.  Early in the pandemic calls came to release incarcerated persons and cease arrests in light of the risks posed by failing to be able to socially distance while incarcerated.  At the same time, the pandemic forced a national conversation about the sheer number of unhoused persons in our country.  The pandemic created an emergent argument for both broad scale decarceration and publicly funded housing.  The practical process of securing housing for the recently decarcerated, however, is fraught because of what is described in this article as the “culture of exclusion” that has long pervaded subsidized housing policy, enabled by a patchwork of federal laws, including the Anti-Drug Abuse Act (ADA) of 1988 and the Supreme Court case, HUD v. Rucker.

The culture of exclusion is arbitrated by local housing authorities and works on three levels — eligibility, enforcement and set asides.  As a result, formerly incarcerated persons are often rejected outright during the application process.  In addition, persons who live in subsidized housing and are alleged to be engaged in or associated with anyone who is alleged to have participated in criminal conduct can be evicted making subsidized housing itself a pipeline into the prison industrial complex. 

This Article seeks to motivate a pathway towards housing the decarcerated by ending the culture of exclusion.  In Part I, the article briefly updates the status of the prison abolition and right to housing movements. Part II builds on the idea that stable housing for formerly incarcerated persons is essential to the prison abolition movement’s success by reviewing summary results from pilot programs in New York, Washington and Michigan.  Part III suggests that “one strike” policies, have created a broader “culture of exclusion,” which the Supreme Court validated in Rucker, further burdening the process of reentry for the recently decarcerated.  Finally, Part IV, prescribes policy changes that are essential to housing the decarcerated even beyond repealing the ADA and overturning Rucker, including transcending the narrative of innocence, directing PHA discretion to admit not deny and utilizing civil rights laws to equalize voucher holders.

April 24, 2021 in Collateral consequences, Impact of the coronavirus on criminal justice, Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (1)

Saturday, April 17, 2021

"Applying Procedural Justice in Community Supervision"

The title of this post is the title of this interesting report released last month by folks at the Urban Institute.  This page has this abstract for the report:

Procedural justice, a framework for authority figures to treat people with fairness and respect, can improve probation supervision and core supervision outcomes.  This report summarizes the approach and provision outcomes of an effort to develop and pilot a new procedural justice training curriculum outlining new tools and practices for probation officers.  Analyses of interactions between supervising officers and people under supervision, survey responses regarding perceptions of supervision, and analyses of administrative data provided mixed findings, with some preliminary indications that participating in the procedural justice training may make probation officers’ treatment of people under supervision fairer and more respectful and improve supervision outcomes.  However, the conclusions that can be drawn from even those results supportive of intervention impact are subject to significant limitations, given the nonexperimental nature of the design and the small number of observations in some of the data collected.

April 17, 2021 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Wednesday, April 07, 2021

"When Animus Matters and Sex Offense Underreporting Does Not: The Sex Offender Registry Regime"

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

In Romer v. Evans the Court drew a constitutional distinction between civil laws enacted for a broad public purpose that justifies "the incidental disadvantages they impose on certain persons," and laws that have "the peculiar property of imposing a broad and undifferentiated disability on a single named group".  Laws of the second kind "raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected."  The difficulty lies in deciding when the inference properly becomes a conclusion that the law violates the Equal Protection Clause.  The more sweeping and unusual the burdens imposed on the targeted group, the more difficult it may be to discern a common policy explaining them other than the forbidden purpose of harming their targets.  At some point the animus inference may be strong enough to require scrutiny of the laws' purported rationale, including whether it has any actual basis in fact.

An astonishingly broad array of burdens are imposed today on anyone ever convicted of almost any sexual offense of any kind or seriousness, including but extending far beyond their simple inclusion in publicized websites listing "sex offenders."  No similar regime has ever been imposed on any other group of law-abiding former felons who have fully served the sentence for the crime they committed years earlier.  This "registry regime" raises as strong an inference of animus as there was in any of the four cases in which the Court sustained such claims, and the claim that it is justified by the clearly valid purpose of reducing the incidence of sexual offending does not survive the scrutiny of scientific studies which find the registry ineffective and often counterproductive.  Nor does the fact that many sexual offenses are never reported to law enforcement authorities cast any doubt on the validity of those studies or on the legal or policy analyses relying on them.  Much of the registry regime must therefore fall under an Anti-Animus principle.

April 7, 2021 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sex Offender Sentencing, Who Sentences | Permalink | Comments (3)

Noticing federal prison flow from "Federal Justice Statistics, 2017-2018"

I often blog about the "stock" of federal prisoners (examples here and here and here), aided by the weekly reporting on the number of federal inmates by the Federal Bureau of Prisons at this webpage.  But, without information about the "flow" of persons in and out of prison, any snapshot of the prison population at a particular moment only tells part of the data story of modern mass incarceration.  Helpfully, the Bureau of Justice Statistics has released this new lengthy report, titled ""Federal Justice Statistics, 2017-2018," which includes data on the flow of federal prisoners over one year.

I recommend this new BJS report for all federal criminal justice fans, as it includes all sorts of data about about all stages of criminal case processing.  And I found this passage especially interesting when thinking about federal prison populations:

In FY 2018, a total of 59,248 sentenced offenders were admitted to the BOP, of whom 47,620 had been committed by a U.S. district court (table 8).  The remaining 11,628 offenders were returning to federal prison for violating conditions of their probation, parole, or supervised release or were admitted for a reason other than a U.S. district court commitment. Most prisoners admitted to the BOP had been convicted of a drug offense (36%), and the majority of them received a prison sentence of more than one year (74%).

A total of 64,397 prisoners were released from federal prison in FY 2018, of whom 52,404 were released for the first time since their commitment by a U.S. district court.  From the start to the end of FY 2018, the number of federal prisoners declined by 5,419.  This included decreases in immigration offenders (down 3,180) and drug offenders (down 2,323) and increases in public-order offenders (up 953) and weapons offenders (up 477).

Table 8 in this document reported a total federal prisoner population of 167,034 at the state of Fiscal Year 2018, which means that significantly more than a third of the entire federal prison population "turned over" in just one year. (My sense is that the "flow" numbers are comparable in state prison systems, and that they are especially dramatic for jails where most persons a serving terms less than a year long.)

April 7, 2021 in Data on sentencing, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (0)

Tuesday, April 06, 2021

"A Reintegration Agenda for the 117th Congress: Criminal Record Relief, Federal Benefits, & Employment"

The title of this post is the title of this notable new short report from the Collateral Consequences Resource Center.  This blog posting at CCRC, titled "Second Chance Month: A Federal Reintegration Agenda" provides some background on the report.  Here is the report's introduction:

The new Congress has an opportunity to make significant bipartisan progress on criminal justice reform, including reducing barriers to successful reintegration for people with a criminal record. This agenda recommends specific measures by which Congress can accomplish this.

During the wave of criminal record reform that began around 2013, every state legislature has taken some steps to chip away at the negative effects of a record, thereby supporting opportunities to earn a living, access public benefits, education, and housing, regain voting rights, and otherwise reintegrate into society.  Many states have entirely remade their record relief systems — authorizing or expanding expungement, sealing, set-aside, certificates of relief, and/or deferred adjudication — and limited the consideration of arrest and conviction records in employment and licensing.

Congress has belatedly become interested in the reintegration agenda, limiting background checks in federal employment and contracting in 2019, and removing some barriers to public benefits in 2020. However, many federal barriers remain, and individuals with federal records have no access to the kind of relief mechanisms now available in most states.

During the pandemic, the need to access opportunities and resources has been perhaps unprecedented. We therefore urge Congress and the Biden Administration to take an ambitious and bipartisan approach to criminal record reforms in the four areas described below:

  • Record relief: Authorize federal courts to expunge certain records, grant certificates of relief, and increase use to deferred adjudication; give effect to state relief in federal law; prohibit dissemination of certain records by background screeners and the FBI; and, provide relief from firearms dispossession.
  • Federal public benefits: End record-related restrictions in financial assistance to small businesses, SNAP and TANF benefits, and student aid.
  • Employment & licensing: Establish enforceable standards for consideration of criminal record in federal employment and contracting, and limit record-based restrictions in federally-regulated occupations.
  • Voting rights: Allow voting in federal elections regardless of a person's criminal record unless currently incarcerated for a felony conviction.

April 6, 2021 in Collateral consequences, Reentry and community supervision, Who Sentences | Permalink | Comments (1)

Sunday, April 04, 2021

How about some clemency grants from Prez Biden to go with Second Chance Month, 2021 proclamation?

13cb83a5a0a55a11a5cf72ef54937218Last week, the White House released "A Proclamation on Second Chance Month, 2021."  Here is the full substantive text:

     America’s criminal justice system must offer meaningful opportunities for redemption and rehabilitation.  After incarcerated individuals serve their time, they should have the opportunity to fully reintegrate into society.  It benefits not just those individuals but all of society, and it is the best strategy to reduce recidivism.  During Second Chance Month, we lift up all those who, having made mistakes, are committed to rejoining society and making meaningful contributions.

     My Administration is committed to a holistic approach to building safe and healthy communities.  This includes preventing crime and providing opportunities for all Americans.  It also requires rethinking the existing criminal justice system — whom we send to prison and for how long; how people are treated while incarcerated; how prepared they are to reenter society once they have served their time; and the racial inequities that lead to the disproportionate number of incarcerated Black and Brown people. 

     We must commit to second chances from the earliest stages of our criminal justice system.  Supporting second chances means, for example, diverting individuals who have used illegal drugs to drug court programs and treatment instead of prison.  It requires eliminating exceedingly long sentences and mandatory minimums that keep people incarcerated longer than they should be.  It means providing quality job training and educational opportunities during incarceration to prepare individuals for the 21st century economy.  And it means reinvesting the savings from reduced incarceration into reentry programs and social services that prevent recidivism and leave us all better off.

     More than 600,000 individuals return to their communities from State and Federal prisons every year.  Transitioning back into society can be overwhelming for those who are formerly incarcerated as well as their families and communities.  Too many individuals face unfair legal and practical barriers to reentry.  The reentry process is complicated in the best of times, and is even more so with the additional difficulties presented by the COVID-19 pandemic.

     We must remove these barriers.  Every person leaving incarceration should have housing, the opportunity at a decent job, and health care.  A person’s conviction history should not unfairly exclude them from employment, occupational licenses, access to credit, public benefits, or the right to vote.  Certain criminal records should be expunged and sealed so people can overcome their past. 

     By focusing on prevention, reentry, and social support, rather than incarceration, we can ensure that America is a land of second chances and opportunity for all people.

     NOW, THEREFORE, I, JOSEPH R. BIDEN JR., President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim April 2021 as Second Chance Month.  I call upon all government officials, educators, volunteers, and all the people of the United States to observe this day with appropriate programs, ceremonies, and activities.

I like all the sentiments in this proclamation, and I sincerely hope "all government officials" engaged in "appropriate activities" to observe Second Chance Month.  But as the title of this post is meant to highlight, Prez Biden has one particually appropriate way to " lift up" and "commit to second chances" through the granting of clemency.   He can today and tomorrow and every day, simply with his clemency pen, begin the process of "eliminating exceedingly long sentences" and ensure we are "focusing on prevention, reentry, and social support, rather than incarceration."  Morevoer, because there are currently no federal record relief laws, the only way for federal criminal records to functionally "be expunged and sealed so people can overcome their past" would be through pardon grants.

Especially during a holiday season, I do not think it too much to expect and hope that the President will seek to practice what he preaches.  Or, in this case, practice what he proclaims by getting moving on clemency.   

A few of many prior related posts:

April 4, 2021 in Clemency and Pardons, Reentry and community supervision, Who Sentences | Permalink | Comments (1)

Saturday, March 27, 2021

Great coverage of recent "second chance" reforms and scholarship at CCRC

Regular readers are used to my regular reminders to regularly check out work over at the Collateral Consequences Resource Center.  Doing so recently brings up a number of posts over the last month or so covering recent "second chance" reforms and scholarship:

March 27, 2021 in Collateral consequences, Criminal Sentences Alternatives, Recommended reading, Reentry and community supervision | Permalink | Comments (1)

Thursday, March 25, 2021

"Punitive Surveillance"

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

Is there a “punishment exception” to the Constitution?  That is, can the deprivation of fundamental rights — such as the right to protest, to visit a mosque, or consult a lawyer — be imposed as direct punishment for a crime, so long as such intrusions are not “cruel and unusual” (under the Eighth Amendment)?  On the one hand, such intrusions seem clearly unconstitutional unless narrowly tailored to meet a compelling state interest; on the other hand, they seem less harsh than prison.  Surprisingly, the answer is not obvious. But the answer is critical as courts increasingly impose new forms of non-carceral punishment, such as GPS-equipped ankle monitors, smart phone tracking, and suspicionless searches of electronic devices.  This type of monitoring, what I term “punitive surveillance,” allows government officials and for-profit companies to track, record, search and analyze the location, biometric data and other meta-data of thousands of people on probation and parole.  With virtually no oversight or restraint, punitive surveillance strips people of fundamental rights, including privacy, speech, and liberty.  Thus far, courts have assumed that such intrusions are merely “conditions” of punishment or “regulatory” measures.  As a result, punitive surveillance is subject to almost no limitations.

This Article is the first to argue that these restrictive and invasive surveillance measures are — just like a prison sentence — punishment, and subject to constitutional limits.  The Article makes three contributions.  First, drawing on original empirical research of almost 300 state and local policies, it reveals the punitive and rights-stripping nature of electronic surveillance of those on court supervision.  Second, it explains why courts’ labeling of such surveillance as a “condition” of punishment or a regulatory measure stems from a misunderstanding of this surveillance and the law of punishment.  Finally, it makes the case that punishment is still subject to constitutional limits beyond the Eighth Amendment and the Ex Post Facto Clause, as well as other limits.  Given the rights at stake, and that punitive surveillance entrenches race and class-based subordination, limiting punitive surveillance is crucial.

March 25, 2021 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Technocorrections | Permalink | Comments (0)

Wednesday, March 24, 2021

Notable Seventh Circuit panel finds insufficient explanation for revoking supervised release for missed drug test and assessments

Late last week, a Seventh Circuit panel handed down an interesting and seemingly important ruling in US v. Jordan, No. 19-2970 (7th Cir. Mar. 18, 2021) (available here). The 10-page unanimous ruling should be of interest to all federal sentencing fans because the ruling gives some teeth to "the parsimony principle of 18 U.S.C. § 3553(a)," but it also ought to be of interest to any other criminal justice fans concerned about drug policy and about how community supervision and revocations can undergird mass incarceration.

The start of the opinion highlights why the Jordan ruling caught my attention:

During his first three months while on supervised release, Anthony Jordan consistently tested negative on drug tests and called the probation office to find out about his next required tests.  Nonetheless, over two days in June 2019, he missed a drug test and two assessments, prompting his probation officer to petition to revoke his supervised release. The district court ruled that Jordan had committed the violations, revoked his supervised release, and sentenced him to six months in prison followed by 26 months of supervised release (including 120 days in a halfway house).  Jordan has appealed.  We conclude that the district court did not sufficiently explain its decision, consider Jordan’s defense that his violation was unintentional, or otherwise ensure that its sentence conformed to the parsimony principle of 18 U.S.C. § 3553(a).  We therefore reverse the judgment.

And here are excerpts from the heart of the opinion (which is very much worth reading in full, in part because it notes that the feds here "asked for 14 months of imprisonment"), as well as its closing paragraph:

Jordan’s core claim is that the district court failed to sufficiently justify both the revocation and prison sentence.  He invokes the due process clause of the Fifth Amendment, but we think this case fits better within “the supervisory power of an appellate court to review proceedings of trial courts and to reverse judgments of such courts which the appellate court concludes were wrong.” Cupp v. Naughten, 414 U.S. 141, 146 (1973).  This authority permits us to require sound procedures that are not specifically commanded by the statutes or other relevant provisions.  Thomas v. Arn, 474 U.S. 140, 146–47 (1985); Terry v. Spencer, 888 F.3d 890, 895 (7th Cir. 2018).

Under our supervisory authority, we see two flaws in the district court’s procedures and decision. First, the district court did not mention, let alone adequately explain, its rejection of Jordan’s defense that he lacked intent to violate the conditions of supervised release and had made reasonable and good faith attempts to comply.  Such an explanation is required.  United States v. Hollins, 847 F.3d 535, 539 (7th Cir 2017).  The need to address the defense is particularly important here because, before hearing a word of testimony, the court told Jordan that it was adopting the findings of violations from the probation officer’s memo.  We do not know why the court seemed to make findings about violations before the planned hearing on whether violations occurred.  But because it seemed to signal its view of the facts before hearing any evidence, we think that after the court heard the evidence, it needed to explain why that evidence did not move the court from that earlier view.  And it did not do so here.  We hasten to add that a revocation may have been justified.  We recognize that the testimony of offenders on supervised release might not be credible, and we know that district judges may hear a lot of creative excuses for failing to comply with conditions of supervised release.  But without an evaluation of the defense, we cannot review whether the district court’s rationale for rejecting it was permissible.

Second, the district court did not adequately explain its decision to imprison Jordan again for six months.  Sentences must always conform to the “broad command” of the parsimony principle, which requires that sentences be “‘sufficient, but not greater than necessary to comply with’ the four identified purposes of sentencing: just punishment, deterrence, protection of the public, and rehabilitation.” Dean v. United States, 137 S. Ct. 1170, 1175 (2017), quoting 18 U.S.C. § 3553(a). This principle is especially important in a case like this where the alleged violations were not criminal, the defendant asserted a lack of intent, and there was evidence of reasonable efforts and good faith, putting in question which of the purposes of sentencing apply.

The Supreme Court has observed that prison is not necessarily appropriate for every violation of a condition of release, such as where, as the defendant asserts here, the defendant made bona fide efforts to comply and does not obviously pose a threat to society.  Bearden v. Georgia, 461 U.S. 660, 668–70 (1983). “The congressional policy in providing for a term of supervised release after incarceration is to improve the odds of a successful transition from the prison to liberty.”  Johnson v. United States, 529 U.S. 694, 708–09 (2000).  Sending a defendant back to prison for a violation that occurs despite reasonable and good faith efforts to comply may well undermine that transition....

We do not mean to imply that imprisonment may never be the appropriate response to violations like those charged here, missing a drug test and appointments for treatment. The district court may have had in mind the notion that the assurance of reimprisonment — even for a short time for intentional or even careless violations — deters future violations. We understand that different judges have different philosophies in balancing the factors under § 3553(a). But the district court needed to say explicitly why it thought that six months in prison was necessary for a defendant who had tested negative on every test and committed no other violations.

March 24, 2021 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Sunday, February 21, 2021

"Sex Offenders and the Free Exercise of Religion"

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

In a variety of ways, sex offenders in the United States find themselves in a difficult position.  One of the lesser-known ways relates to the free exercise of religion.  Sometimes by categorical statute, and sometimes by individualized parole, probation, or supervised-release condition, sex offenders can find themselves legally barred from places where children are present (or likely to be present).  Because children are usually present at religious services, sex offenders can find themselves unable to attend them altogether.  And this hardship has a bit of irony in it too.  Back in prison, sex offenders could worship freely with others; now ostensibly free, they can no longer do so.

This simple problem has real scope — tens (maybe hundreds) of thousands of people barred from essentially all religious services, sometimes for decades, sometimes for life.  Moreover, these prohibitions are often vague and overbroad — and so restrictive that low-level administrators (like sheriffs and probation officers) are often pushed into softening or waiving them.  But this ends up creating a kind of licensing scheme, whereby low-level government officials make — on their own, without any formal criteria — ad-hoc and practically unreviewable decisions about who gets to go to church and under what conditions.  Risks of selective enforcement, discrimination, and abuse are obvious.

These rules have come into being as if concerns about the free exercise of religion have no weight at all.  But this is not the case.  And, in fact, a robust body of law protects the free exercise of religion, requiring exemptions from religiously burdensome laws.  Now this does not mean that sex offenders should be universally exempt from any and all restrictions regarding church attendance.  There are probably some people who pose such a threat to children that they should be kept away from churches.  Courts will have to answer tricky questions — who should be barred, who should decide who is barred, and on what criteria? — that require nuanced and elaborate answers.  Yet informed by analogies from other areas of law (like freedom of speech) where courts have wrestled with similar issues, this Article offers some recommendations that are analytically rigorous, practically realizable, and judicially manageable.

February 21, 2021 in Collateral consequences, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (1)

Tuesday, February 16, 2021

Drug Policy Alliance launches "Uprooting the Drug War" to highlight myriad harms of drug criminalization

As detailed in this press release, "the Drug Policy Alliance announced the launch of a major new initiative — Uprooting the Drug War — with the release of a series of reports and interactive website that aim to expose the impact of the war on drugs beyond arrest and incarceration."  Here is more on this important effirt:

The project is designed to engage activists across sectors and issues in understanding and dismantling the ways in which the war on drugs has infiltrated and shaped many other systems people encounter in their daily lives — including education, employment, housing, child welfare, immigration, and public benefits.... 
 
The goal of the new initiative — a natural extension of DPA’s decriminalization advocacy work — is to collaborate with aligned movements and legislators through meetings, webinars, convenings, and organizing to explore the ways the drug war has infected the systems and institutions that are at the core of their policy advocacy and create momentum for concrete policy proposals that begin to end the drug war in all its forms.
 
The project, which lives at UprootingtheDrugWar.com, includes analysis of six different systems through first-hand stories, data spotlights, and reports that take a deep dive into how drug war policies have taken root and created grave harm in the fields of education, employment, housing, child welfare, immigration, and public benefits.  Each report explores the history of how the drug war is waged (or enforced) in each system, as well as the underlying assumptions of drug war policies, through an examination of federal and New York state law.  In addition to the reports, six ‘Snapshots’ provide a brief overview of how drug war punishment and logic show up in these systems at a national level and make policy recommendations that would begin to extract the drug war from these systems.  Finally, the site offers six ‘Advocacy Assessment Tools,’ which give partners and legislators the opportunity to evaluate drug war policies and practices in their own community so they can take action to uproot the drug war locally.

February 16, 2021 in Collateral consequences, Criminal Sentences Alternatives, Drug Offense Sentencing, Reentry and community supervision | Permalink | Comments (0)

"Revocation and Retribution"

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

Revocation of community supervision is a defining feature of American criminal law.  Nearly 4.5 million people in the United States are on parole, probation, or supervised release, and one-third will eventually have their supervision revoked, sending 350,000 to prison each year.  While scholars have long debated the reasons for punishing criminal conduct, however, no one has considered the justifications for revoking community supervision.

This Article is the first to apply punishment theory to revocation of community supervision, focusing on the federal system of supervised release.  Federal courts apply a primarily retributive theory of revocation, aiming to punish defendants for their “breach of trust.”  Yet the structure, statute, and purpose of supervised release all reflect purely utilitarian goals of deterrence and incapacitation.  Although scholars traditionally view courts as the institution most likely to defend criminal defendants against the state, the federal courts have played a key role in expanding the power to punish through the retributive theory of revocation.

February 16, 2021 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, February 08, 2021

CCRC releases a "Reintegration Agenda for the 117th Congress"

The Collateral Consequences Resource Center has this notable new report titled "A Reintegration Agenda for the 117th Congress: Criminal Record Relief, Federal Benefits, & Employment." Here is its introduction:

The new Congress has an opportunity to make significant bipartisan progress on criminal justice reform, including reducing barriers to successful reintegration for people with a criminal record. This agenda recommends specific measures by which Congress can accomplish this.

During the wave of criminal record reform that began around 2013, every state legislature has taken some steps to chip away at the negative effects of a record, thereby supporting opportunities to earn a living, access public benefits, education, and housing, regain voting rights, and otherwise reintegrate into society.  Many states have entirely remade their record relief systems — authorizing or expanding expungement, sealing, set-aside, certificates of relief, and/or deferred adjudication — and limited the consideration of arrest and conviction records in employment and licensing.

Congress has belatedly become interested in the reintegration agenda, limiting background checks in federal employment and contracting in 2019, and removing some barriers to public benefits in 2020.  However, many federal barriers remain, and individuals with federal records have no access to the kind of relief mechanisms now available in most states.

During the pandemic, the need to access opportunities and resources is perhaps unprecedented. We therefore urge Congress and the Biden Administration to take an ambitious and bipartisan approach to criminal record reforms in the four areas described below:

  • Record relief: authorize federal courts to expunge certain records, grant certificates of relief, and increase use of deferred adjudication; give effect to state relief in federal law; prohibit dissemination of certain records by background screeners and the FBI; provide relief from firearms dispossession.
  • Federal public benefits: end record-related restrictions in small business relief, SNAP and TANF benefits, and student financial aid.
  • Employment & licensing: establish enforceable standards for consideration of criminal record in federal employment and contracting, and limit record-based restrictions in federally-regulated occupations.
  • Voting rights: allow voting in federal elections unless a person is serving a felony sentence in a correctional institution.

February 8, 2021 in Collateral consequences, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Tuesday, January 26, 2021

"The U.S. Sentencing Commission’s Recidivism Studies: Myopic, Misleading, and Doubling Down on Imprisonment"

The title of this post is the title of this new article now available via SSRN authored by Nora Demleitner. Here is its abstract:

Recidivism is now the guiding principle of punishment and has become the new hallmark of criminal justice reform, as reflected in the U.S. Sentencing Commission’s recidivism project.  So far, the Commission has issued three reports in 2020 alone, which outline the parameters within which “safe” criminal justice reform can proceed.  Yet the overly broad definition of “recidivism” and the focus on easily measurable and static risk factors, such as prior criminal record, create a feedback loop.

The Commission’s work should come with a warning label.  Its recidivism studies should not be consumed on their own.  Instead, they must be read in conjunction with U.S. Probation and Pretrial Services recidivism research, which includes data on the impact of programming, treatment, and services on reentry success.  Yet, concerns about undercounting recidivism events drive the entire U.S. approach.  Western European studies reflect different philosophies and values that explain some of the underlying reasons for the dramatically different imprisonment rates on the two sides of the Atlantic.

These recidivism studies raise also questions about the Commission’s role.  Its ongoing preference for imprisonment indicates that it continues to consider itself the guardian of incarceration-driven guidelines.  The studies reenforce the status quo and the Commission’s role in it.  They threaten to propel us into data-driven selective incapacitation and continuously long prison terms for those with prior criminal records, all in the name of public safety.

January 26, 2021 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Wednesday, January 20, 2021

Timely reminder that Congress has a critical role to play in reforming clemency conditions

Former US pardon attorney Margaret Colgate Love has this great new Washington Post piece highlighting that Congress can and should create statutory record relief mechanisms (as nearly all states have) in order to prevent clemency from serving as the only means for persons with federal criminal records to find relief.  I recommend the piece in full, and here are excerpts:

The core problem that has led to pardon’s abuse is that the justice system has relied too heavily on an authority that is inherently arbitrary and unfair.

Thus, the law makes the president exclusively responsible — through his pardon power — for shortening most federal prison sentences and relieving the collateral consequences of conviction — functions that in most states are now routinely performed by judges and agencies under statutory schemes.  For example, a presidential pardon is the only way a person convicted of a federal felony can qualify for many business and professional licenses, or regain the right to possess firearms.  Indeed, I have been told — and my own practice would confirm — that a desire to regain firearms rights accounts for nearly half of the pardon applications filed.  It is beyond absurd to make the president a one-person gun-licensing bureau for people convicted of nonviolent federal crimes who want to go hunting again....

I do not advocate curtailing the president’s pardon power, and the Biden administration can decide how it wishes to administer that power.  I hope it will restore at least the appearance of fairness and regularity to the way applications from ordinary people are considered (even if the process will continue to function, as it always has, more or less like a lottery)....

The alternative to systematic reliance on pardoning is what Daniel J. Freed described 20 years ago as “the more demanding road toward democratic reform.”  The incoming administration should urge Congress to offload many of pardon’s exclusive functions onto the legal system by enacting robust statutory relief mechanisms, for those in prison and for those who have fully served their sentences, as a majority of states have done in recent years....

In other words, Congress should enact laws to provide alternative ways of handling much of the routine business that is currently overwhelming the pardon process, ideally using the federal courts. It has already begun this work in the 2018 First Step Act, which gives federal prisoners the ability to go back to court to seek reduction of their sentences.

If the pardon process were not bogged down by thousands of petitions from people who simply want to restore lost rights or improve their employment prospects, the president would be free to use the constitutional power in a far more expansive and policy-oriented manner to encourage reform of the justice system, to counter its overreaches and to tell good news about its operation through stories of successful rehabilitation.

In the end, Trump’s abuse of his pardon power could be seen as a blessing in disguise if it provides the opportunity to wean the federal criminal justice system from its dependence upon presidential action for routine relief. Only if freed from its more workaday responsibilities can pardon play the constructive role the Framers intended.

I sense that record relief reform has been a truly bipartisan endeavor in states from coast to coast in reent years. The Biden Administration and members of Congress on both sides of the aisle might be wise to start its criminal justice reform efforts here.

January 20, 2021 in Clemency and Pardons, Collateral consequences, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Thursday, January 14, 2021

"The Reintegration Agenda During Pandemic: Criminal Record Reforms in 2020"

The title of this post is the title of this notable new report from the Collateral Consequences Resource Center authored by Margaret Love and David Schlussel.  Here is part of this great report's "Overview":

Since 2013, every state legislature has taken at least some steps to chip away at the negative effects of a criminal record on the ability to earn a living, to access housing, education, and public benefits, and otherwise to fully reintegrate into society.  Some states have entirely remade their post-sentence relief systems.  Some state governors have also issued executive orders or class-wide pardons in support of this restoration effort.  Congress also has rather belatedly become interested in criminal records issues, limiting background checks in federal employment and contracting in 2019, and removing barriers to public benefits in 2020 spurred by the effects of the pandemic.

The past year saw a continuation of these legislative trends.  While fewer states enacted fewer laws in 2020 than in the preceding two years, evidently because of the disruptions caused by the pandemic, the fact that there was still considerable progress is testament to a genuine and enduring public commitment to a reintegration agenda.

In 2020, 32 states, the District of Columbia, and the federal government enacted 106 legislative bills, approved 5 ballot initiatives, and issued 4 executive orders to restore rights and opportunities to people with a criminal record.

As in 2019, a majority of the new laws in 2020 involve what we have come to call “record relief,” measures that operate on the criminal record itself to reduce its negative effect.  Record relief may limit public access through expungement or sealing, vacate or pardon the conviction, or avoid a conviction record through diversion or deferral of judgment.  Other restoration laws regulate discretionary decisionmakers that control access to the workplace, public benefits, and education. Still others expand the franchise, and curb driver’s license suspensions based on unpaid court debt or grounds unrelated to dangerous driving.

Approaches to record reform continue to vary widely from state to state, with respect to the type of relief, the specifics of who is eligible for it, the mechanics of delivery, and its effect. Yet despite this variety it is clear that there has been no flagging in the lively national conversation about how best to limit unwarranted record-based discrimination.

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

Monday, January 04, 2021

"Expunging Juvenile Records: Misconceptions, Collateral Consequences, and Emerging Practices"

The title of this post is the title of this notable new document authored by Andrea Coleman and recently released by Department of Justice's Office of Juvenile Justice and Delinquency Prevention. Here are the "Highlights" set forth in the first page of the document:

This bulletin discusses common misconceptions surrounding expungement.  It also provides information about the collateral consequences of juvenile records as well as federal, state, and local emerging practices. 

The key information and findings include the following:

  • Expungement, sealing, and confidentiality are three legally distinct methods for destroying or limiting access to juvenile records.  However, these methods may permit police, courts, or the public access to juvenile records, depending on state laws.

  • The public and impacted youth often erroneously believe that once police and courts expunge juvenile records they no longer exist. The handling of expunged juvenile records varies widely from state to state.

  • Youth with juvenile records frequently experience collateral consequences of their arrest or adjudication, which may include difficulty accessing educational services, obtaining employment, serving in the military, and finding and maintaining housing.

  • States, localities, and the federal government have implemented promising practices to decrease collateral consequences, including “ban the box” legislation and expungement clinics (Avery and Hernandez, 2018; Radice, 2017; Shah, Fine, and Gullen, 2014; Shah and Strout, 2016).

January 4, 2021 in Collateral consequences, Offender Characteristics, Reentry and community supervision | Permalink | Comments (0)

Saturday, January 02, 2021

REMINDER of DEPC and OJPC and CCRC drafting contest: "Re-Imagining 'Second Chances': Improving Ohio’s Re-Entry Provisions"

Download (8)A few weeks ago in this post I noted the on-going drafting contest sponsored by a partnership of the Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law, the Ohio Justice & Policy Center (OJPC), and the Collateral Consequences Resource Center (CCRC).  Here are the basic details draft from this web page (where you can find this longer official announcement):

About the Contest

With the goal of furthering the ongoing debate of how “second chance” mechanisms can be improved in Ohio, the Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law, the Ohio Justice & Policy Center (OJPC), and the Collateral Consequences Resource Center are sponsoring a contest for law students and recent law-school graduates.  Specifically, entrants are encouraged to submit a proposal and accompanying commentary suggesting changes to Ohio’s existing statutory provisions that would help people obtain relief from collateral consequences.

Proposals should address both substance (e.g., when and to whom would it apply) and procedure (e.g., how would it function).  Additionally, proposals can, but need not be, drafted as proposed legislative text; a “policy paper” or other like submission is acceptable, though any submission must include an actionable proposal for reform of Ohio laws. The proposal might include concrete suggestions for making existing tools more broadly and easily accessible, but it could also advocate for wholesale changes to the mechanism and means for relief in Ohio.

Contest Timeline and Awards

Submissions are due January 11, 2021.  The winning submission will receive a prize of $1,500, and one runner-up prize of $500 will also be awarded.  If a group submission is awarded prize money, it will be divided equally among the group’s members.  All winning submissions will be published via DEPC and OJPC’s websites.  The full winning proposals may be used in DEPC and OJPC’s ongoing efforts to advocate for improvements in Ohio law.

January 2, 2021 in Collateral consequences, Reentry and community supervision | Permalink | Comments (0)

Wednesday, December 30, 2020

Still more great new Politico Magazine coverage now on "Justice Reform: Reentry"

Earlier this year I noted in posts here and here that the Politico Magazine had produced a terrific collection of original articles on criminal justice reform issues under the headings "Justice Reform: The Decarceration Issue" and "Justice Reform: Prison Conditions."   Those article are still collected at this link, but they are now topped by another great new set of pieces under the heading "Justice Reform: Reentry."  Here are the great-looking new pieces under this heading with their full headlines:

How Thousands of American Laws Keep People ‘Imprisoned’ Long After They’re Released: Across the country, people with felony convictions face a daunting web of small obstacles to rebuilding normal lives. What will it take to fix?

5 New Policy Ideas for Fixing Life After Prison: Ex-prisoners can face a whole second sentence when they try to reenter society. Business, governments and nonprofits have ideas for how to make it easier.

A Journalist Who Spent Time Behind Bars Dishes on How He Rebuilt His Life: A revealing Q&A conversation about life after prison — by a journalist still serving time at Sullivan Correctional Facility.

Prior related posts:

December 30, 2020 in Collateral consequences, Reentry and community supervision | Permalink | Comments (0)

"The Treatment-Industrial Complex: Alternative Corrections, Private Prison Companies, and Criminal Justice Debt"

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

Out of the 6.7 million adults caught up in the criminal legal system, approximately 4.5 million are under correctional control outside of prisons and jails.  Within this hidden world of “alternative corrections,” people who are arrested, detained, imprisoned, put on probation or diversion, and even released are forced to pay a growing amount of money to various for-profit “criminal justice” actors.  Alternatives to incarceration are conditioned on fines, fees, and other forms of wealth extraction, causing a vicious cycle of poverty and indebtedness that is virtually impossible to escape. 

This Article explores and analyzes the little-researched area of criminal justice debt arising from alternative corrections: how private corrections companies profit from supervising those individuals released, paroled, sent to rehabilitation or diversion, placed on probation, or subject to forensic or civil commitment.  These under-examined forms of for-profit correctional supervision — the treatment-industrial complex — have turned supposedly progressive alternatives to incarceration into cash-register justice. 

December 30, 2020 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Monday, December 28, 2020

Reviewing remarkable recent criminal justice reforms in the state of Michigan

Ohio and Michigan have a long-standing rivalry on a number of fronts, but this local article highlights why I do not think any state could rival the state of up north with regard to its recent achievements in criminal justice reform.  This piece, headlined "Michigan lawmakers made big inroads on criminal justice reform, but advocates say there’s more to be done," merits a full read, and here is how it gets started:

In a legislative session dominated by disagreements over how best to handle the COVID-19 pandemic, there was one policy arena that united conservatives and progressives alike — criminal justice reform.  Over the course of two years, lawmakers were able to see through several criminal justice policy changes that have eluded previous legislatures for years, as well as several new recommendations made by a task force that had buy-in from experts, advocates, law enforcement, business groups, Gov. Gretchen Whitmer’s administration and Michigan Supreme Court Chief Justice Bridget Mary McCormack.

Those who worked closely on the reforms are quick to say the work isn’t over.  But soon, thousands of people with old criminal convictions on their records will be able to apply to seal those records from public view — and in a couple of years, some of those records will be expunged automatically if they don’t commit any new crimes.  Others who might otherwise have served a stint in county jail may not have to in the future due to legislation decriminalizing many traffic offenses and providing alternatives to jail time for low-level crimes.

“There will be effects that we don’t see right now...we will only see decades later,” outgoing House Speaker Lee Chatfield — who has credited his father’s work in jail ministry to his longstanding interest in making changes to the criminal justice system — said in his farewell speech on the House floor.  “We gave people a second chance,” he continued. “We gave people a fresh start, we gave people the opportunity to now be contributing members of society.”

Some of the major criminal justice legislation passed by both chambers with bipartisan support this session include:

  • Civil asset forfeiture bills requiring a person be convicted of a crime prior to permanent property seizure by law enforcement in most cases. The concept was introduced as a top priority in both legislative chambers in early 2019, and Whitmer signed the legislation in May of that year.

  • Legislation to raise the age of people automatically charged as adults in Michigan’s criminal justice system from 17 to 18. Michigan was one of the few remaining states where 17-year-olds are automatically tried, sentenced and incarcerated as adults if they’re charged with or convicted of a crime.  Whitmer signed the bills in October 2019, and they take effect in October 2021.

  • “Clean Slate” legislation designed to simplify and expand expungement options for people who have gone several years without committing another offense.  The package, signed by Whitmer in October, opens up the expungement process to low-level marijuana convictions and many traffic offenses, increases the overall number of expungements a person can receive and allows consolidations of multiple convictions that occurred in the same 24-hour time period.  Lawmakers included a two-year window for the state to set up a system for processing automatic expungement, and other bills in the package are written to take effect 180 days after they’re enacted.

  • Additional expungement-related bills passed in the legislature’s “lame duck” session, including adding first-time drunken-driving convictions and certain crimes committed by minors to the list of what could be wiped from criminal records.  Another bill sent to the governor’s desk this month directs $24 million from the Marihuana Registry Fund to the Michigan Set Aside Fund.

  • A House package redefining the term “good moral character” in state law to remove barriers to obtaining many occupational licenses for people with a prior criminal conviction. Under existing law, any criminal conviction can be taken into consideration by a licensing board when determining a person’s fitness for a profession — under the bill package, only serious crimes that posed a threat to public safety or were directly related to the occupation in question could be taken into consideration.

  • House legislation reducing penalties for a number of low-level offenses from misdemeanors to civil infractions, including driving on a suspended license.  Other related bills would limit driver’s license suspensions to offenses related specifically to dangerous driving and eliminate mandatory sentencing for a variety of offenses.

  • Senate legislation expanding law enforcement discretion to issue citations for most misdemeanors in lieu of arrest and creating a presumption of a sentence other than jail for most misdemeanors and certain felonies.  Other bills would ensure summonses are used for most first-time failure to appear in court and reforms the state’s probation and parole policies, capping jail sanctions for technical probation violations and allowing more discretion to assess risks and needs.

  • A Senate bill lifting a ban on food assistance for people with more than one drug-related felony on their record.

December 28, 2020 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Tuesday, December 22, 2020

Exciting DEPC and OJPC and CCRC drafting contest: "Re-Imagining 'Second Chances': Improving Ohio’s Re-Entry Provisions"

Second-Chance-Contest_for-socialRegular readers likely recall may regular reminders in the first half of 2020 of this drafting contest that emerged from a partnership of the Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law and the Ohio Justice & Policy Center (OJPC) and centered around imaging a comprehensive "second-look sentencing provision" for Ohio law.  This competition proved a great success, and I fear I have been slow to note the great ongoing follow-up contest, which this time also includes the involvement of the Collateral Consequences Resource Center (CCRC).  Here are the basic details from this web page (where you can find this longer official announcement):

About the Contest

With the goal of furthering the ongoing debate of how “second chance” mechanisms can be improved in Ohio, the Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law, the Ohio Justice & Policy Center (OJPC), and the Collateral Consequences Resource Center are sponsoring a contest for law students and recent law-school graduates.  Specifically, entrants are encouraged to submit a proposal and accompanying commentary suggesting changes to Ohio’s existing statutory provisions that would help people obtain relief from collateral consequences.

Proposals should address both substance (e.g., when and to whom would it apply) and procedure (e.g., how would it function).  Additionally, proposals can, but need not be, drafted as proposed legislative text; a “policy paper” or other like submission is acceptable, though any submission must include an actionable proposal for reform of Ohio laws. The proposal might include concrete suggestions for making existing tools more broadly and easily accessible, but it could also advocate for wholesale changes to the mechanism and means for relief in Ohio.

Contest Timeline and Awards

Submissions are due January 11, 2021.  The winning submission will receive a prize of $1,500, and one runner-up prize of $500 will also be awarded.  If a group submission is awarded prize money, it will be divided equally among the group’s members.  All winning submissions will be published via DEPC and OJPC’s websites.  The full winning proposals may be used in DEPC and OJPC’s ongoing efforts to advocate for improvements in Ohio law.

December 22, 2020 in Collateral consequences, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Saturday, December 19, 2020

Ohio Supreme Court strikes down "anti-procreation community-control condition" for man convicted for failing to pay child support to mothers of his 11 children

The Ohio Supreme Court yesterday rendered an interesting decision, by a 6-1 vote, striking down an interesting community control condition in Ohio v. Chapman, No. 2020-Ohio-6730 (Ohio Dec. 18, 2020) (available here). Here is the start and key concluding paragraphs from the majority opinion:

A man was convicted for failing to pay child support to the mothers of his 11 children and sentenced to community control.  One of the conditions of community control imposed by the court was that the man “make all reasonable efforts to avoid impregnating a woman” during his sentence.  The question before us is whether that condition was appropriate.  We conclude that it was not....

Chapman’s failure to properly prioritize his obligations toward his children and pay support as he is able could prompt several conditions of community-control sanctions that would reasonably relate to his offense.  The trial court properly ordered Chapman to obtain and maintain full-time employment.  It could have gone further in this direction: it might have ordered him to participate in job training, placed him in a program that would ensure that he was working and that child support was being deducted from his paycheck, required that he undergo education in financial planning and management, or placed restrictions on his spending.  All of these would be reasonably related to Chapman’s crime of nonpayment of child support.  But as long as the crime of nonsupport depends on an offender’s ability to pay, a prohibition requiring Chapman to “make reasonable measures” to avoid fathering another child during his term of community control is not.

The lack of a fit between the offense of which Chapman was convicted and the availability of other more effective conditions leads to the conclusion that the condition “unnecessarily impinge[d] upon the probationer’s liberty.”  Jones at 52.  On remand, the trial court must remove the anti-procreation condition, but may impose other conditions that are appropriately tailored to the goals of community control.

Justice French was the lone dissenter, and her opinion concluded with these points:

In Talty, 103 Ohio St.3d 177, 2004-Ohio-4888, 814 N.E.2d 1201, at ¶ 20-21, this court concluded that an anti-procreation community-control condition was overly broad because it did not contain a mechanism for lifting the condition.  But here, the trial court required only that Chapman make reasonable efforts to avoid impregnating another woman during his five-year community-control period.  The trial court then outlined a minimum of 12 ways by which Chapman could have the condition lifted.  This is not a case in which the trial court decided to impose an anti-procreation community-control condition for minor instances of failure to pay child support.  Chapman currently has at least 11 children that he is not supporting, and his child-support arrearage at the time of his 2018 resentencing was already over $200,000.  The trial court found that Chapman’s violations of his prior child-support obligations were “egregious and systemic.”  Under these facts, its anti-procreation condition is not overly broad.

December 19, 2020 in Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (2)

Thursday, December 03, 2020

New Pew report highlights how "States Can Shorten Probation and Protect Public Safety"

Shorten_Probation_and_Public_Safety_Report_650px_Figure2This important new report from The Pew Charitable Trusts, titled "States Can Shorten Probation and Protect Public Safety," provides a great accounting of key data and good policy in the probation area.  Here are excerpts from the report's overview:

More than 3.5 million, or 1 in 72, adults were on probation in the United States at the end of 2018 — the most recent year for which U.S. Bureau of Justice Statistics (BJS) data is available — more than triple the number in 1980.  Nationwide, on any given day, more people are on probation than in prisons and jails and on parole combined.

At its best, probation — court-ordered correctional supervision in the community — gives people the opportunity to remain with their families, maintain employment, and access services that can reduce their likelihood of reoffending while serving their sentences.  But, as previous research by The Pew Charitable Trusts has shown, the growth and size of this population have overloaded local and state agencies and stretched their resources thin, weakening their ability to provide the best return on taxpayers’ public safety investments, support rehabilitation, and ensure a measure of accountability.

One key factor driving the size of the probation population is how long individuals remain on supervision.  A growing list of high-quality studies have shown that long probation sentences are not associated with lower rates of recidivism and are more likely than shorter ones to lead to technical violations — noncompliance with one or more supervision rules, such as missing appointments or testing positive for drug use.  Recent research from the Council of State Governments has found that such violations contribute significantly to state incarceration rates and correctional costs: More than 1 in 10 state prison admissions are the result of technical violations of probation rather than convictions for a new crime.  To date, the average length of probation has not been well documented, because data on individual terms has been lacking.

To begin addressing this gap and help criminal justice stakeholders better understand how long people spend on probation — as well as the effects of term length on individual recidivism outcomes — The Pew Charitable Trusts conducted an in-depth analysis of BJS data from 2000 through 2018.  Additionally, Maxarth LLC examined Oregon and South Carolina data to quantify the potential to reduce probation lengths without increasing re-offending in those states, and the National Conference of State Legislatures (NCSL) reviewed probation sentencing statutes in all 50 states.  This report provides a first-of-its-kind national and state-level portrait of the average length of probation and explores whether term lengths can be safely reduced and what options are available for state policymakers looking to improve their system’s outcomes....

No national standard exists for how long probation should be for any given case.  Rather, the findings of this and other research suggest that probation should be only long enough to meet its basic objectives of providing accountability proportional to the underlying criminal offense, connecting people to needed treatment and services, and enabling individuals to complete programs such as cognitive behavioral therapy and counseling that have been shown to reduce the risk of re-offending.

Research indicates that people are at the highest risk of re-offending early in their probation terms; for example, among people on felony probation in Oregon who were rearrested within three years of entering probation, 69% were arrested in the first year.  Further, studies show that after the first year, many supervision provisions, such as reporting requirements and community-based services, have little effect on the likelihood of rearrest, so keeping probation terms short and prioritizing resources for the early stages of supervision can help improve success rates among people on probation, reduce officer caseloads, and protect public safety.

Although probation was originally conceived as an alternative to incarceration, criminal justice officials, policymakers, and other stakeholders increasingly acknowledge that keeping people on probation longer than is needed to deliver public safety benefits carries unnecessary and unproductive costs and wastes scarce resources. This report aims to help state and local leaders better understand and address the critical issue of probation length by providing essential data and offering policies and practices that can improve outcomes for probation departments and the people they supervise across the U.S.

December 3, 2020 in Criminal Sentences Alternatives, Reentry and community supervision | Permalink | Comments (1)

Saturday, November 21, 2020

Terrific coverage at CCRC as "Marijuana expungement accelerates across the country"

Long-time readers here and at my other blog know I have long been interested in how marijuana reform can advance criminal justice reform.  My 2018 article, "Leveraging Marijuana Reform to Enhance Expungement Practices," called for much greater efforts to ensure marijuana reforms advance criminal record expungement efforts.  Happily, my 2018 article now already feels a bit dated because there has recently been a much greater emphasis on record relief in many marijuana reforms proposed and passed over the last couple of years. 

These recent realities have been effectively documented at the Collateral Consequences Resource Center.  CCRC Deputy Director David Schlussel first highlighted these developments in March 2020, via this posting and resource under the title "Legalizing marijuana and expunging records across the country."  That detailed posting began this way:  "As the legalization or decriminalization of marijuana has now reached a majority of the states, the expungement of criminal records has finally attained a prominent role in the marijuana reform agenda."  Wonderfully, this new follow-up posting provides the lastest detailed post-election accounting and gets started this way:

In November’s election, four more states legalized marijuana at the ballot box: Arizona, Montana, New Jersey, and South Dakota. The measures in Arizona and Montana included provisions for expunging the record of convictions for certain marijuana arrests or convictions.  During this year’s presidential campaign, President-elect Joseph R. Biden called for decriminalizing marijuana use and automatically expunging all marijuana use convictions.

As legalization continues to advance, the expungement of criminal records has finally attained a prominent role in marijuana reform, a development we documented in March.  Laws to facilitate marijuana expungement and other forms of record relief, such as sealing and set-aside, have now been enacted in 23 states and D.C.

Until very recently, most such laws extended to very minor offenses involving small amounts of marijuana and required individuals to file petitions in court to obtain relief.  Now, a growing number of states have authorized marijuana record relief that covers more offenses and either does away with petition requirements or streamlines procedures.

With these developments, we have again updated our chart providing a 50-state snapshot of:

(1) laws legalizing and decriminalizing marijuana;

(2) laws that specifically provide relief for past marijuana arrests and convictions, including but not limited to conduct that has been legalized or decriminalized; and

(3) pardon programs specific to marijuana offenses.

November 21, 2020 in Collateral consequences, Marijuana Legalization in the States, Pot Prohibition Issues, Reentry and community supervision | Permalink | Comments (0)

Saturday, October 31, 2020

Effective PPI review of how "technical violations" contribute to incarceration in DC

The Prison Policy Initiative has this notable new detailed briefing about so-called "technical violations" in Washington DC that helps highlight the various was mass supervision contributes to mass incarceration.  The briefing's full title set out its coverage: "Technical difficulties: D.C. data shows how minor supervision violations contribute to excessive jailing; Using D.C. as a case study, we explain how much non-criminal — and often drug related — 'technical' violations of probation and parole contribute to unnecessary jail incarceration." I recommend the piece in full, and here are excerpts:

Parole and probation violations are among the main drivers of excessive incarceration in the U.S., but are often overlooked policy targets for reducing prison and jail populations. Nationally, 45% of annual prison admissions are due to supervision violations, and 25% are the result of “technical violations” — noncompliant but non-criminal behaviors, like missing meetings with a parole officer.  The sheer number of people held in jail for mere violations of supervision exemplifies the gross overuse and misuse of incarceration in the U.S.

Despite their impact on local jail and state prison populations, technical violations are not well understood, often appearing in the data simply as “violations” without any description of the underlying behavior.  However, Washington, D.C. stands out by publishing a wealth of local jail data as well as contextual data from federal agencies like the Court Services and Offender Supervision Agency (CSOSA), which offers a fuller story of what happens to people on supervision....

When people serving a sentence from D.C. Superior Court are released from jail or prison, many remain under supervision of some form — either supervised release or parole. Each person under supervision must comply with certain conditions, which are monitored by a Community Supervision Officer (CSO).  The same is true of those sentenced by a court to probation, another form of supervision, instead of a period of incarceration.  The Robina Institute estimates that people on probation must comply with 18 to 20 requirements a day; the list of requirements in D.C. illustrates how easy it can be to “violate” these many conditions...

In D.C., the second most common “most serious offense” for men in jail is a parole violation, just behind assault and ahead of weapons violations, drug offenses, property crime, burglary and robbery, and other violations of law.  Among women, parole violations are the third most common “most serious offense.”  The D.C. Department of Corrections (DOC) reported that, as of April 2020, 8.5% of women and 14.3% of men in jails were held on charges that included a parole violation or had a “Parole Violator” status.

For context, we previously found that in both New York and Texas, parole violations made up just over 8% of those in jails statewide.  In comparison to those states, D.C.’s jails hold a larger proportion of people on parole violations.  However, when compared to the share of people held for supervision violations in other large cities like Philadelphia (58%), New York City (27%), and New Orleans (22%), D.C.’s incarceration for violations (about 14%) appears consistent with — or even more modest than — other cities’....

People in jail for technical violations — things that are not criminal offenses for people not under supervision – exemplify the overuse and misuse of incarceration. D.C. is just one criminal legal system among over 50 more in every state and territory.  Dismantling mass incarceration is impossible without also addressing the systems that latch on to people involved in the criminal legal system and refuse to let go.  To get the full picture, politicians, advocates, and scientists must take hard look at the many Americans under supervision and the ways that they are continuously churned through our massive criminal legal system. It is time to end these cycles of criminalization and find solutions that free people from the enormous reach of supervision.

October 31, 2020 in Collateral consequences, Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (3)

Wednesday, October 28, 2020

Digging carefully into what the FIRST STEP Act has, and has not, really achieved

Malcolm C. Young, a long-time justice reform advocate, sent me an interesting new report he has completed titled "How Much Credit Should Trump be Given for the First Step Act?".  This new report, which I recommend in full, is a continuation of some research which was recently published in the Journal of Community Corrections under the title "The First Step Act and Reentry."  That Fall 2019 article makes the case that "as a law intended to improve federal reentry, the FSA falls short."  Young's new report, which can be downloaded below, is a detailed effort to pushback on some of Prez Trump's claims about "his" achievements through the FIRST STEP Act.  Here is an excerpt from the start of the report:

Trump is entitled to take credit for signing the FSA into law and the reductions in the federal prison use that followed. But the FSA, which was drafted by legislators, is neither the first nor the largest reform in recent years.  For examples, a reform in sentences for crack cocaine at the close of the George Bush administration reduced the use of federal prisons by close to three-quarters of the reduction obtained from the FSA.  A downward adjustment in drug sentences that cleared the United States Sentencing Commission (USSC) during the Obama administration resulted in nearly half-again as much a reduction in prison use (146%) as resulted from the FSA at the end of its first year.  And, finally, including the downward adjustment in drug sentences, Obama-era reforms resulted in more than double (230%) the FSA’s reduction in prison use in its first year.

As to benefits for Black Americans, the FSA’s reductions in sentences for crack cocaine benefited Black individuals disproportionally, as intended, yet very little more than did three similarly structured reforms intended to alleviate racial disparities in federal drug sentencing.  The FSA’s other provisions benefit smaller proportions of Black individuals.

As to reentry, the Trump administration's claim that, “[t]he landmark First Step Act enacted commonsense criminal justice reform that is helping prisoners gain a new lease on life and is making America safer” is, regrettably, simply not true.  These aspects of the FSA are not working.  But the fault lies more with Congress than Trump.

Download Trump and the First Step Act October 2020

October 28, 2020 in Campaign 2020 and sentencing issues, Criminal justice in the Trump Administration, Drug Offense Sentencing, Federal Sentencing Guidelines, FIRST STEP Act and its implementation, Prisons and prisoners, Race, Class, and Gender, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Thursday, October 22, 2020

"Felony Disenfranchisement and the Nineteenth Amendment"

The title of this post is the title of this interesting essay just recently posted to SSRN and authored by Michael Gentithes. Here is its abstract:

Today’s arguments in support of felony disenfranchisement laws bear striking similarities to the arguments of anti-suffragists more than a century earlier.  Both suggest that a traditionally subordinated class of citizens is inherently incapable of bearing the responsibility that the right to vote entails.  Both argue that some potential votes are somehow less worthy than others, and thus the authors of those votes ought to be excluded from the marketplace of political ideas.  And both assert a distinction between the votes of some citizens thought to be of higher political value, and those thought unworthy of having their voices counted in the political arena.

This Article examines the historical response to those arguments and suggests that they can be applied forcefully in the contemporary debate over felony disenfranchisement. Suffragists raised two arguments in response to coverture-based contentions against women enfranchisement: first, that men simply did not represent women’s interests in politics, instead subordinating them ever further both in family structures and the public sphere; and second, that women had something important to add to the political conversation that would be missing as long as they were excluded from the debate.  Similarly, felony disenfranchisement laws are based upon the fiction that there is a distinction between good votes of most citizens and bad votes of criminals, and therefore excluding former felons’ voices from the political arena is acceptable because their interests will be sufficiently served by the good votes of others.  But the voices of former felons should be heard, both because of the perspective those voices will bring to modern problems caused by growing incarceration rates, and because those voices may add important and worthy ideas to the political marketplace that would be absent if their contributions are excluded.

October 22, 2020 in Collateral consequences, Race, Class, and Gender, Reentry and community supervision | Permalink | Comments (0)

Wednesday, October 21, 2020

Louisiana Supreme Court declares state statute requiring persons to carry ID branded with "SEX OFFENDER" violative of First Amendment

I am grateful to a reader for making sure I did not miss the ruling yesterday of the Supreme Court of Louisiana in Louisiana v. Hill, No. 2020-KA-00323 (La. Oct. 20, 2020) (available here). The start of the majority opinion captures its essence:

This case involves the constitutionality of a statutory requirement that persons convicted of sex offenses carry an identification card branded with the words “SEX OFFENDER.” This obligation is included as part of a comprehensive set of registration and notification requirements imposed on sex offenders in Louisiana.  Other states (and the federal government) have enacted similar collections of laws.  However, the specific requirement to carry a branded identification card distinguishes Louisiana from the rest of the country.  Forty-one other states do not require any designation on the identification cards of sex offenders.

For the reasons below, we find that this requirement constitutes compelled speech and does not survive a First Amendment strict scrutiny analysis.  Thus, we uphold the trial court’s ruling striking this specific requirement as unconstitutional and quashing the prosecution of defendant for altering his identification card to conceal the “SEX OFFENDER” designation.

The lone dissenting vote was by Justice Crain, who wrote a short dissenting opinion that starts this way:

The majority finds it unconstitutional to require a convicted sex offender to be identified as such on a government-issued identification card.  Louisiana Revised Statutes 40:1321J requires a registered sex offender to procure a special identification card that includes the words “sex offender” in all capital, orange letters.  That phrase is the speech at issue. It is not First Amendment protected speech.  The speaker is the government: the words are stamped by a governmental agency on a government-issued identification card in accordance with a government-enacted statute.  This is the embodiment of government speech.

October 21, 2020 in Collateral consequences, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (5)

Monday, October 12, 2020

Broad Michigan expungement bill signed into law (time to step up Ohio)

As reported in this local article, headlined "Gov. Whitmer signs bills expanding criminal record expungement in Michigan," notable record relief reform has now become law in the Wolverine State.  Here are the details:

Gov. Gretchen Whitmer signed legislation Monday that will automatically clear certain criminal convictions from public view in Michigan while also making more people eligible for expungement through the application process.

The changes are expected to help hundreds of thousands of Michiganders by removing a barrier to employment, housing and other opportunities after people have rehabilitated themselves.

During a news conference with Whitmer in Detroit, lawmakers and advocates held up Michigan as a national leader in expungement reform.  The automatic record-clearing legislation is the "most expansive version of this law in the country," said John Cooper, executive director of Safe & Just Michigan, one of the organizations that advocated for the bills.

Whitmer called it a "historic" day for Michigan.  “These bipartisan bills are going to be a game changer,” she said.  “They will ensure a clean slate for hundreds of thousands of people.  And they will help us grow our workforce and expand access to education and skills training."

State Rep. Graham Filler, a DeWitt Republican who chairs the House Judiciary Committee and joined in announcing the bipartisan bills in Detroit last fall, said the reform will directly increase public safety.  "You're in your community, you're invested in your community, you're spending time with your family, you're working, you're accessing housing," he said. "We have less recidivism, less victims. This is what happens when you access expungement."

Crime survivors who support the legislation agreed.  "For many crime survivors, the most important thing ... is what happened it us, we don’t want it to happen again to anyone," Aswad Thomas, a survivor of gun violence, told the Free Press.  Thomas is managing director of Crime Survivors for Safety and Justice, a national network with chapters in Michigan.  "And passing reforms like the Clean Slate bill, when people are able to get access to a job, people are able to get access to education, people are able to get access to employment, it actually increases public safety."

A coalition of groups that pushed for the reform over the last few years say Michigan's process to seal a conviction so that it doesn't appear on a background check has long been costly and complicated, and the restrictions unduly narrow.  Only 6.5% of people who qualify for expungement in Michigan have their records cleared within five years of becoming eligible, according to a study out of the University of Michigan Law School.  The study found that people who get their records expunged see higher earnings and low recidivism rates.

"This is bigger than criminal justice reform," Lt. Gov. Garlin Gilchrist said. "This is about economic opportunity and full participation in our economy and our society."

The state follows Pennsylvania, Utah and California in adopting an automated system to wipe clean certain convictions from public records after a period of time. Michigan's law will apply retroactively and is the first to automatically clear prior low-level felonies.

Under the automatic record-clearing law, misdemeanors will be expunged seven years after sentencing.  Felonies will be cleared 10 years after sentencing or the person's release from incarceration, whichever comes last.  Up to two felonies and four misdemeanors can be automatically cleared.

Not eligible for automatic expungement are assaultive crimes, serious misdemeanors, "crimes of dishonesty" (such as forgery and counterfeiting), offenses punishable by 10 or more years in prison and crimes that involve a minor, a vulnerable adult, injury or serious impairment, death or human trafficking.  Assaultive crimes are defined as offenses such as assault, homicide, manslaughter, assaults against pregnant women, kidnapping, rape, armed robbery, terrorism, and violations involving bombs and explosives, according to the House Fiscal Agency.

The legislation gives the state two years to implement the automatic expungement process.  The remaining legislation in the seven-bill package will take effect in 180 days.  The bills expand eligibility for expungement through the application process, which is handled by a judge.

As the parenthesis in my post title highlights, I am hopeful that Ohio's long-standing rivalry with its neighbor up north might lead the Buckeye State to try to keep up on the record relief front.  And, coincidentally, the latest new drafting contest from a partnership of the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law and the Ohio Justice & Policy Center and the Collateral Consequences Resource Center is focused on suggesting changes to Ohio’s existing statutory record relief provisions. The details on this contest, titled "Re-Imagining 'Second Chances': Improving Ohio’s Re-Entry Provisions," are available here on the DEPC website.

October 12, 2020 in Collateral consequences, Reentry and community supervision, Who Sentences | Permalink | Comments (1)

Sunday, October 11, 2020

"Neighborhood Risk Factors for Recidivism: For Whom Do They Matter?"

The title of this post is the title of this new article just posted to SSRN and authored by Leah Jacobs and Jennifer Skeem.  Here is its abstract:

Justice-involved people vary substantially in their risk of re-offending.  To date, recidivism prediction and prevention efforts have largely focused on individual-level factors like antisocial traits.  Although a growing body of research has examined the role of residential contexts in predicting re-offending, results have been equivocal.  One reason for mixed results may be that an individual’s susceptibility to contextual influence depends upon his or her accumulated risk of re-offending.

Based on a sample of 2,218 people on probation in San Francisco, California, this study draws on observational and secondary data to test the hypothesis that individual risk moderates the effect of neighborhood factors on recidivism. Results from survival analyses indicate that individual risk interacts with neighborhood concentrated disadvantage and disorder — these factors increase recidivism among people relatively low in individual risk, but not those at higher risk. This is consistent with the disadvantage saturation perspective, raising the possibility that some people classified as low risk might not recidivate but for placement in disadvantaged and disorderly neighborhoods.  Ultimately, residential contexts “matter” for lower risk people and may be useful to consider in efforts to prevent recidivism.

October 11, 2020 in National and State Crime Data, Reentry and community supervision | Permalink | Comments (1)

Tuesday, October 06, 2020

Collateral Consequences Resource Center releases "The Reintegration Report Card"

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

This Report Card supplements our recently published 50-state report, “The Many Roads to Reintegration,” a survey of U.S. laws aimed at restoring rights and opportunities after arrest or conviction.  That report includes topical essays covering voting and firearms rights, an array of record relief remedies, and consideration of criminal record in employment and occupational licensing.

The “Many Roads” report assigned to each state, D.C., and the federal system a grade for nine different types of restoration laws:

  1. loss and restoration of voting rights
  2. pardon
  3. felony expungement, sealing & set-aside (“felony relief”)
  4. misdemeanor expungement, sealing & set-aside (“misdemeanor relief”)
  5. non-conviction relief
  6. deferred adjudication
  7. judicial certificates of relief
  8. employment
  9. occupational licensing.

Using these grades, we produced an overall ranking of the states and D.C. In this Report Card we provide the grades and rankings in an easily digestible form.

We also provide a brief narrative summary of how each state’s law stacks up in the different categories.  Our hope is that these summaries will suggest ways in which a state might improve its laws and hence its ranking. An appendix collects all the grades and rankings.

Finally, we emphasize once again that our grades are based solely on the text of each state’s law, leaving more nuanced judgments about their actual operation to practitioners, researchers, and the law’s intended beneficiaries.  We expect to look more closely at the operation of some of the record relief laws in the near future, and welcome comments and suggestions from those who have experience with them.  In the meantime, we hope our grades will challenge, encourage, and inspire additional reforms in the months and years ahead.

For more details and legal citations for each state, see the Restoration of Rights Project.  For essays surveying each topic, consult “The Many Roads to Reintegration.”

October 6, 2020 in Collateral consequences, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, October 01, 2020

Lots and lots of notable (and very consequential?) new criminal justice reforms now law in California

CaliforniaflagCalifornia has long been a very big and very interesting and very complicated state when it comes to criminal justice and sentencing reform. This fascinating state story continued with a lot of new bills being signed yesterday by Gov Gavin Newsom. This local article (which somewhat tracks this official document from the Governors office) provides some of the details and provides especially helpful links to the underlying legislation.  Here are excerpts focused on criminal justice reforms with my bolding added for follow-up comments:

Gov. Gavin Newsom signed landmark bills into law on Wednesday, the last day available for the governor to sign legislation.  The docket included racial justice, criminal justice, and policing reform, as well as legislation related to cannabis, rental housing, and banning hazardous chemicals and ingredients in cosmetics. 

This long list of signed bills has my head spinning, and the title of this post highlights that I am particularly curious and particularly uncertain about how consequential all these bills are likely to be.  I have bolded the two bills that, as a sentencing fan, strike me as particularly intriguing and potentially very consequential. 

AB 1950, which caps the duration of probation terms, has been described by REFORM Alliance as the "most transformative probation reform bill in the country."  This new Fox News article, headlined "Jay-Z, Meek Mill's REFORM Alliance celebrate 'major victory' with Calif. Gov. Newsom passing probation bill," talks about this new bill and the efforts and people behind making it law.  Here is a snippet:

On Wednesday, REFORM announced on Instagram it was celebrating a "MAJOR REFORM VICTORY." Through its verified Instagram account, the alliance thanked California Gov. Gavin Newsom for signing AB 1950 into law.  "This bill will help put hundreds of thousands of Californians on probation in positions to succeed and exit the criminal justice system for good.  Thank you @GavinNewsom!" the Instagram post reads.  In a follow-up post, the organization wrote, "This is just the beginning. This is how we #fightdifferent."...

REFORM's CEO Van Jones explained in a video statement that the law will essentially "make people be on probation for much less time" and will "give people a much better shot at getting out of that system, getting what they need and getting on their way."  The premise is to reduce the number of probation violations.

AB 2542, which provides for a California Racial Justice Act, seems to be the biggest and broadest racial justice act ever passed by any state because it seems to apply to all convictions and sentences and not just death sentences as did comparable Racial Justice Act passed in Kentucky and North Carolina years ago.  Notably, Michelle Alexander wrote this op-ed last week endorsing this bill and explaining its reach this way (with my emphasis added):

The new law will make it possible for a person charged or convicted of a crime to challenge racial, ethnic, and national-origin bias in their case through relevant evidence, including: 

▪ Explicit racial bias by an attorney, judge, law enforcement officer, expert witness, or juror involved in the case.

▪ Use of racially discriminatory language in court and during the criminal proceedings, whether or not intentional.

▪ Racial bias in jury selection, such as removing all or nearly all Black, brown, Native, Indigenous and people of color from the jury.

▪ Statistical disparities in charging and convictions — that is, evidence that people of one race are disproportionately charged or convicted of a specific crime or enhancement.

▪ Statistical disparities in sentencing — that is, evidence that people of one race receive longer or more severe sentences, including the death penalty or life without parole.

I believe that the new California Racial Justice Act only applies prospectively, and so we will not see extensive litigation over past sentences as we did in North Carolina (and which led to the repeal of that state's Racial Justice Act). But even as just a prospective measure, I am inclined to predict that this new statute could prove highly consequential in all sorts of ways.

I am hopeful that smart folks who focus on the California criminal justice system might soon blog about to these bills and their potential impacts. And, of course, another wave of reform in California might not be far away: as this article highlights under the headline "Three ballot measures test attitudes on crime in California," a set of criminal justice initiatives being put to California voters next month will add to this remarkable 2020 reform chapter in the Golden State.

October 1, 2020 in Criminal Sentences Alternatives, Race, Class, and Gender, Reentry and community supervision, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Thursday, September 17, 2020

"Public opinion and the politics of collateral consequence policies"

The title of this post is the title of this notable new article authored by Travis Johnston and Kevin Wozniak recently published in Punishment & Society.  Here is its abstract:

We analyze data from a national sample of the U.S. population to assess public support for policies that deny former offenders’ access to job training programs, food stamps, and public housing. We find that Americans generally oppose benefit restrictions, though support for these policies is higher among Republicans and people with higher levels of racial resentment.  We also find that a legislator’s criminal justice reform positions generally do not significantly affect voters’ evaluation of him or her, and even voters with more punitive attitudes toward collateral consequence policies support legislators who advance particular kinds of reform proposals.  These findings provide little evidence that any group of Americans would be mobilized to vote against a legislator who works to reform collateral consequence policies. We discuss the implications of these findings for American and comparative studies of the politics of punishment.

September 17, 2020 in Collateral consequences, Criminal Sentences Alternatives, Elections and sentencing issues in political debates, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Saturday, September 12, 2020

Highlighting the need for, and the support for, reforming mass community supervision

Jessica Jackson's new USA Today piece, headlined "The expensive burden of parole, probation unjustly places people in a second prison," highlights why community supervision is another form of mass punishment that needs reform attention.  Here are excerpts:

According to the Bureau of Justice Statistics, nearly 4.4 million Americans were on probation or parole in 2018, approximately twice the number of people incarcerated in the United States.  [And] more than 75% were under supervision for nonviolent offenses, according to The Pew Charitable Trusts.  Since 1990, the number of women on parole or probation has almost doubled to more than 1 million in 2016. And though African Americans make up just 13% of the U.S. adult population, they account for 30% of those on community supervision.

Sadly, almost 350,000 of people who exit probation or parole each year return to jail or prison, often for technical violations rather than for committing new crimes.  In fact, probation and parole failures account for 45% of state prison admissions nationwide.

Collectively, states spend $2.8 billion annually to incarcerate people for noncriminal rule violations.  This is money that could be better used to help people gain the skills and treatment they need to successfully reenter their communities after incarceration, something that has strong public support.   A new Morning Consult survey conducted in eight states on behalf of my organization, the REFORM Alliance [reported here], found:

► A majority of voters in six of the eight states think it is important to reduce the number of people on probation or parole supervision.

► A plurality of voters in all eight states think the United States spends too much incarcerating people for violating the conditions of their probation or parole.

► At least half of voters in seven of the eight states would be more likely to support a public official who wants to reform the probation and parole system.

Perhaps most important, a majority of voters in all eight states support commonsense probation and parole reforms, such as: decreasing caseloads for probation officers; providing mentorship programs for those on parole or probation; allowing people on probation to report to their supervisors remotely; incentivizing and encouraging supervised people to participate in rehabilitative programs; and investing savings from a smaller supervised population into reentry programs.

Simply put, people want a smarter system that balances accountability and public safety with rehabilitation and redemption. We know it's possible.  Crime and incarceration dropped at the same time in 37 states over a nine-year period, according to data from the Pew Charitable Trusts.  Red and blue states, alike, are continuing that progress, with legislatures in Mississippi, California and Louisiana passing parole and probation reform legislation this year.

September 12, 2020 in Criminal Sentences Alternatives, Reentry and community supervision | Permalink | Comments (0)