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 (2)

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)

Tuesday, September 08, 2020

"The Many Roads to Reintegration: A 50-State Report on Laws Restoring Rights and Opportunities After Arrest or Conviction"

Many-Roads-Cover-1-768x994The title of this post is the title of this big new report by Margaret Love and David Schlussel of the Collateral Consequences Resource Center. The report, among other valuable elements, provides a "National Ranking of Restoration Laws" for all states and DC. Here is part of the 100+ page report's executive summary:

This report sets out to describe the present landscape of laws in the United States aimed at restoring rights and opportunities after an arrest or conviction. This is an update and refresh of our previous national survey, Forgiving and Forgetting in American Justice, last revised in 2018.  Much of the material in this report is drawn from our flagship resource, the Restoration of Rights Project.  We are heartened by the progress that has been made toward neutralizing the effect of a criminal record since the present reform era got underway in a serious fashion less than a decade ago, especially in the last two years.

This report considers remedies for three of the four main types of collateral consequences: loss of civil rights, dissemination of damaging record information, and loss of opportunities and benefits, notably in the workplace.

Its first chapter finds that the trend toward restoring the vote to those living in the community — a long-time goal of national reform organizations and advocates — has accelerated in recent years.  Further reforms may be inspired by the high-profile litigation over Florida’s “pay-to-vote” system, which shines a national spotlight on financial barriers to the franchise.  This chapter also finds that systems for restoring firearms rights are considerably more varied, with many states providing relief through the courts but others requiring a full pardon.

The second chapter deals with laws intended to revise or supplement criminal records, an issue that has attracted the most attention in legislatures but that has benefited the least from national guidance. It is divided into several parts, based on the type of record affected (conviction or nonconviction) and the type of relief offered (e.g. pardon, expungement, set-aside, certificates, diversion, etc.).  The wide variety in eligibility, process, and effect of these record relief laws speaks volumes about how far the Nation is from common ground.

The third chapter concerns the area in which perhaps the most dramatic progress has been made just since 2018: the regulation of how criminal record is considered by public employers and occupational licensing agencies.  Legislatures have been guided and encouraged by helpful model laws and policies proposed by two national organizations with differing regulatory philosophies: The Institute of Justice, a libertarian public interest law firm, and the National Employment Law Project, a workers’ rights research and advocacy group.  Regulation of private employment has also been influenced by national models, although to a lesser extent and more needs to be done in this area.

This report makes clear that substantial progress that has been made in the past several years toward devising and implementing an effective and functional system for restoring rights and status after arrest or conviction.  The greatest headway has been made in restoring rights of citizenship and broadening workplace opportunities controlled by the state. The area where there is least consensus, and that remains most challenging to reformers, is managing dissemination of damaging criminal record information.  Time will tell how the goal of a workable and effective relief system is achieved in our laboratories of democracy.

September 8, 2020 in Collateral consequences, Reentry and community supervision, Who Sentences | Permalink | Comments (1)

Thursday, August 27, 2020

Bureau of Justice Statistics releases report on "Correctional Populations in the United States, 2017-2018"

Though I am sad that data in reports from the Bureau of Justice Statistics is often a bit dated, I am always grateful for the work BJS does to assemble and detail criminal justice data. And I am especially pleased to see this latest BJS report, titled "Correctional Populations in the United States, 2017-2018," in part because it details the continued decline in correctional populations for now more than a decade (which I certainly believe has continued into 2019 and 2020). This BJS webpage provides this context and highlights:

This report is the 23rd in a series that began in 1985. It provides statistics on populations supervised by adult correctional systems in the United States, including persons held in prisons or jails and those supervised in the community on probation or parole. It provides statistics on the size of the correctional populations at year-end 2017 and year-end 2018, and changes in populations over time.

Highlights:

  • The adult correctional-supervision rate (adults supervised per 100,000 adult U.S. residents) decreased 21% from 2008 to 2018, from 3,160 to 2,510 per 100,000 adult U.S. residents.
  • The percentage of adult U.S. residents under correctional supervision was lower in 2018 than at any time since 1992.
  • The adult incarceration rate (adults in prison or jail per 100,000 adult U.S. residents) has declined every year since 2008, and the rate in 2018 was the lowest since 1996.
  • The portion of adult U.S. residents in prison or jails fell 17% from 2008 to 2018.
  • The correctional population declined 2.1% from 2017 to 2018, due to decreases in both the community-supervision (down 2.4%) and incarcerated (down 1.4%) populations.

August 27, 2020 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (2)

Thursday, August 20, 2020

Amazing resources and insights from the Collateral Consequences Resource Center

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 terrific series of posts drawn from a forthcoming report surveying mechanisms for restoring rights and opportunities following arrest or conviction.  Here are posts from this series:

In addition, the CCRC's website also has recently published these commentary posts on cutting edge topics:

August 20, 2020 in Collateral consequences, Procedure and Proof at Sentencing, Reentry and community supervision | Permalink | Comments (0)

Wednesday, August 12, 2020

"Blanket Exclusions, Animus, and the False Policies They Promote"

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

Saying something is true does not make it so. A nd saying it louder does not make it truer.  But such is the legislative posture behind modern day sex offense registration laws that punish those who commit sex crimes because of entrenched myths that overstate the laws’ positive impact on public safety and exaggerate recidivism rates of offenders.  And it is not only registration schemes themselves that have been scaffold-ed by these myths, but numerous ancillary laws that exclude benefits to offenders strictly because they have committed sex offenses.

Sadly, this sticky, but false, narrative has provided the animus that galvanized implementation of registration and notification regimes. And in its most recent chapter, the narrative has been formalized into blanket exclusions — or what this article calls “all except for” provisions — that have inserted into a myriad of criminal justice reform efforts without much notoriety.

The effect?  Registrants and their families have been prohibited from broad-based and important ameliorative changes to the carceral state, many to which they should be entitled, and to which they are denied only because of their status as registrants.  Indeed, within comprehensive legislation covering numerous crime and sentencing reforms, these ubiquitous blanket exclusions have the markings of boilerplate language that have been introduced even where the new legislation has no rational relationship to the protection of the public’s safety or the prior sex offense conviction.

This article examines the moral panic and false data used to buttress blanket exclusion provisions — their inflated importance obvious. It concludes that these measures, which are un-tethered to public safety concerns, and only supported by governmental and community animus, violate fourteenth amendment protections.

August 12, 2020 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (2)

Sunday, August 09, 2020

"Supervised Release Is Not Parole"

The title of this post is the title of this notable new paper authored by Jacob Schuman just posted to SSRN. Here is its abstract:

The United States has the largest prison population in the developed world.  Yet outside prisons, there are almost twice as many people serving terms of criminal supervision in the community — probation, parole, and supervised release.  At the federal level, this “mass supervision” of convicted offenders began with the Sentencing Reform Act of 1984, which abolished parole and created a harsher and more expansive system called supervised release.  Last term in United States v. Haymond, the Supreme Court took a small step against mass supervision by striking down one provision of the supervised release statute as violating the right to a jury trial.  But the Justices did not consider all the differences between parole and supervised release, which have far broader consequences for the constitutional law of community supervision.

The current consensus among the courts of appeals is that supervised release is “constitutionally indistinguishable” from parole and therefore governed by the same minimal standard of due process.  Closer inspection, however, reveals three significant differences between parole and supervised release.  First, parole was a relief from punishment, while supervised release is an additional penalty. Second, parole revocation was rehabilitative, while supervised release revocation is punitive.  Finally, parole was run by an agency, while supervised release is controlled by courts.  Because of these differences, revocation of supervised release should be governed by a higher standard of due process than revocation of parole.  In particular, defendants on supervised release deserve more protection against delayed revocation hearings, which may deny them the opportunity to seek concurrent sentencing.

August 9, 2020 in Procedure and Proof at Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (2)

Tuesday, August 04, 2020

The newest (not-so-new) data from BJS on parole and probation populations throughout the United States

The Bureau of Justice Statistics just released this 40+-page report, titled "Probation and Parole in the United States, 2017-2018," providing its latest official data on offenders under community supervision throughout the nation.  Though already a bit dated, the report still provides a notable view on the largest group of persons subject to criminal justice control in the US.  Here are data from the "Highlights" section at the start of the report:

August 4, 2020 in Data on sentencing, Detailed sentencing data, Reentry and community supervision | Permalink | Comments (0)

Friday, July 31, 2020

Big new ACLU and HRW report details "How Probation and Parole Feed Mass Incarceration in the United States"

The quoted portion of the title of this post is part of the title of this huge new report by Human Rights Watch and the American Civil Liberties Union fully titled "Revoked: How Probation and Parole Feed Mass Incarceration in the United States." This important 200+ page report includes these passages in its "summary":

Probation, parole, and other forms of supervision are marketed as alternatives to incarceration in the United States. Supervision, it is claimed, will keep people out of prison and help them get back on their feet.

Throughout the past 50 years, the use of probation (a sentence often imposed just after conviction) and parole (served after incarceration) has soared alongside jail and prison populations. As of 2016, the last year for which supervision data is available, 2.2 million people were incarcerated in United States jails and prisons, but more than twice as many, 4.5 million people — or one in every 55 — were under supervision.  Supervision rates vary vastly by state, from one in every 168 people in New Hampshire, to one in every 18 in Georgia.

Over the past several decades,arbitrary and overly harsh supervision regimes have led people back into US jails and prisons — feeding mass incarceration.  According to the Bureau of Justice Statistics (BJS), in the late 1970s, 16 percent of US state and federal prison admissions stemmed from violations of parole and some types of probation.  This number climbed to a high of 36 percent in 2008, and, in 2018, the last year for which data is available, was 28 percent.  A different set of data for the previous year from the Council of State Governments, which includes all types of probation violations — but is limited to state prison populations — shows that 45 percent of all US state prison admissions stemmed from probation and parole violations.  These figures do not include people locked up for supervision violations in jails, for which there is little nationwide data.  Black and brown people are both disproportionately subjected to supervision and incarcerated for violations.

This report documents how and why supervision winds up landing many people in jail and prison — feeding mass incarceration rather than curtailing it.  The extent of the problem varies among states, and in recent years multiple jurisdictions have enacted reforms to limit incarceration for supervision violations.  This report focuses on three states where our initial research indicated that — despite some reforms — the issue remains particularly acute: Georgia, Pennsylvania, and Wisconsin.

Drawing on data provided by or obtained from these states, presented here for the first time, and interviews with 164 people incarcerated for supervision violations, family members, government officials, practitioners, advocates, and experts, we document the tripwires in these states leading to incarceration.  These include burdensome conditions imposed without providing resources; violations for minor slip-ups; lengthy incarceration while alleged violations are adjudicated; flawed procedures; and disproportionately harsh sentences for violations.  The report shows that, nationwide,most people locked up for supervision violations were not convicted of new offenses — rather, they were incarcerated for breaking the rules of their supervision, such as for using drugs or alcohol, failing to report address changes, or not following the rules of supervision-mandated programs.  Of those who were incarcerated for new offenses, in our focus states, many were for conduct like possessing drugs; public order offenses such as disorderly conduct or resisting arrest; misdemeanor assaultive conduct; or shoplifting....

The root causes of these violations, the report documents, are often a lack of resources and services, unmet health needs, and racial bias.The report also draws attention to marked racial disparities in who is subjected to supervision and how authorities enforce it. In practice, supervision in many parts of the US has become a system to control and warehouse people who are struggling with an array of economic and health-related challenges, without offering meaningful solutions to those underlying problems.

July 31, 2020 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Reentry and community supervision, Who Sentences | Permalink | Comments (1)

"The Prisoner and the Polity"

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

All punishment comes to an end.  Most periods of imprisonment are term limited, and ninety-five percent of prisoners will eventually leave prison.  Though it is tempting to think of the “end” in concrete, factual terms — for example, as the moment when the prisoner is released — this concept also has normative dimensions.  Core to the notion of term-limited imprisonment is the “principle of return”: the idea that, when the prisoner has completed his or her time, that person is entitled to return to society.  Yet, for the principle of return to be meaningful, it must include the idea of a fair chance of reestablishing oneself in the community.  The “practices of incarceration” — including the prison environment and prison programs — are thus critically important because they can either facilitate or impede a prisoner’s reentry into society.  However, apart from the question of whether conditions of confinement are cruel and unusual as defined by the Eighth Amendment, these practices of incarceration have largely avoided scholarly scrutiny.

This Article uses the case study of higher education programs in prison to expose the interdependence between the practices of incarceration and the principle of return.  Drawing on original interviews with key stakeholders, it investigates how the features of higher education programs reflect and reinforce core beliefs about the goals of punishment and the state’s responsibility towards those it incarcerates.  The Article critically examines the dominant harm-prevention justification for prison higher education, and the desert-based objection to it, finding that both are inadequate for failing to take into account the principle of return.

This Article espouses an alternative approach that would recognize the ongoing relationship between prisoner and polity and devise incarceration practices accordingly.  Building on insights from communitarian theory, this approach, which foregrounds the prisoner’s status in the polity, uncovers pervasive “us-versus-them” narratives in the prison context. The first such narrative is between prisoners and those members of the polity who view prisoners, falsely, as having forfeited their claims to membership in civil society.  This view of prisoners, as members of a permanent and lower caste, is in direct conflict with the principle of return, which mandates that prisoners have at least a plausible hope of basic reintegration into society and that they avoid further harm — what might be termed “punishment-plus.”  The Article also scrutinizes a second, more localized “us-versus-them” narrative between prisoners and correctional officers, which arises from their similar backgrounds and the common deprivation experienced by members of both groups.

Finally, the Article recommends institutional design changes to mitigate “us-versus-them” dynamics: empowering stakeholders, for example, by affording correctional officers educational opportunities that would help professionalize their role and ease their resentment towards prisoners; and increasing exposure and empathy between incarcerated and non-incarcerated populations, such as by piloting a program that would employ recent college graduates to teach in prison.  These and other proposed reforms would refocus the conversation around imprisonment to account for the central role of incarceration practices in revitalizing the principle of return, as well as the inextricable connection between prisoner and polity.

July 31, 2020 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (1)

Tuesday, July 28, 2020

US Sentencing Commission publishes "Federal Probation and Supervised Release Violations"

Cover_violations-report-2020The US Sentencing Commission today released this lengthy notable new report titled simply "Federal Probation and Supervised Release Violations." This USSC webpage provides a summary and a extended account of "key findings":

Summary

Federal Probation and Supervised Release Violations presents data on approximately 108,000 violation hearings that occurred between 2013 and 2017.  The report examines the prevalence, types, and locations of federal supervision violations as well as the characteristics of more than 82,000 violators. The report also compares supervision violators to the population of federal offenders originally sentenced to probation or a sentence including a term of supervised release during the same time period. (Published July 28, 2020)

Key Findings
  • Nationally, the number of individuals under supervision was relatively stable during the study period, ranging from 130,224 to 136,156 during the five years. Half of the individuals under supervision, however, were concentrated in only 21 of the 94 federal judicial districts.
  • Nationally, the rate of violation hearings for individuals on supervision also was relatively stable, ranging from 16.2 to 18.4 percent during the five years, with an overall rate of 16.9 percent.  The prevalence of supervision violations, however, varied considerably among the federal judicial districts.
    • Violations accounted for more than one-third of individuals on supervision in the Southern District of California (42.1%), District of Minnesota (37.4%), Western District of Missouri (34.3%), District of Arizona (33.7%), and District of New Mexico (33.4%).  In contrast, violations accounted for less than five percent of individuals on supervision in the Districts of Connecticut (4.5%) and Maryland (4.7%).
  • Supervision violators tended to have committed more serious original offenses than federal offenders whose original sentence was probation or included a term of supervised release during the same time period.
    • For example, the rates of supervision violators originally sentenced for violent and firearms offenses (7.9% and 20.4%, respectively) were approximately twice as high compared to offenders originally sentenced during the study period (3.7% and 12.8%, respectively), a finding which is consistent with prior Commission recidivism research.
  • Drug offenses were the most common primary offense type for both supervision violators and federal offenders whose original sentence was probation or included a term of supervised release during the same time period.  There were, however, notable variations by drug type.
    • For example, crack cocaine offenders accounted for only 9.9 percent of drug offenders whose original sentence was probation or included a term of supervised release, but they accounted for almost one-third (32.1%) of supervision violators, a greater proportion than any other drug type.  The disproportional representation of crack cocaine offenders among supervision violators is consistent with prior Commission recidivism research.  On the other hand, drug offenders who received the safety valve at their original sentencing were underrepresented among supervision violators (19.1% compared to 30.7%), a finding that also is consistent with prior Commission recidivism research.
  • Supervision violators tended to have more serious criminal histories than federal offenders whose original sentence was probation or included a term of supervised release.
    • Approximately one-quarter (24.6%) of offenders with supervision violations were in the lowest Criminal History Category (CHC I) at the time of their original sentencing compared to almost half (44.9%) of offenders whose original sentence was probation or included a term of supervised release during the study period. On the other end of the spectrum, 18.3 percent of offenders with supervision violations were in the highest Criminal History Category (CHC VI) at the time of their original sentencing compared to 9.9 percent of offenders whose original sentence was probation or included a term of supervised release during the study period. This pattern is consistent with prior Commission recidivism research.
  • The majority of supervision violations were based on the commission of an offense punishable by a term of one year or less or a violation of another condition of supervision not constituting a federal, state or local offense (Grade C Violation).
    • More than half (54.9%) of violations were Grade C (the least serious classification), nearly one-third (31.5%) were Grade B, and 13.6 percent were Grade A (the most serious classification).
  • Offenders who were originally sentenced for more serious offenses tended to commit more serious supervision violations.
    • For example, over four-fifths of the Grade A violations were committed by offenders originally sentenced for drug offenses (52.0%), firearms offenses (24.5%), or violent offenses (6.3%).
  • Offenders who violated their conditions of supervision typically did so within the first two years.
    • On average, 22 months elapsed from the time supervision commenced to the commission of the supervision violation, but the elapsed time was notably longer for Grade A violations (the most serious) at 33 months.
  • The majority of supervision violators were sentenced in accordance with the Chapter Seven Revocation Table.
    • More than half (59.8%) were within the applicable range, just over one-quarter (29.1%) were below the range, and 11.1 percent were above the range. Courts tended to impose sentences within the applicable guideline range less often for more serious supervision violations. For example, for Grade A violations (the most serious classification), 39.4 percent were sentenced within the applicable range, and 54.2 percent were sentenced below the range. In contrast, for Grade C violations (the least serious classification), 63.6 percent were sentenced within the range, and 22.1 percent were sentenced below the range.

July 28, 2020 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (6)

Monday, June 15, 2020

"Paying on Probation: How Financial Sanctions Intersect with Probation to Target, Trap, and Punish People Who Cannot Pay"

The title of this post is the title of this lengthy new report released today by the Harvard Law School Criminal Justice Policy Program.  Here is the text of an email I received today concerning the release:

Today, CJPP releases its latest report entitled Paying on Probation: How Financial Sanctions Intersect with Probation to Target, Trap, and Punish People Who Cannot Pay.  In this report, we highlight how jurisdictions use probation to collect and enforce fines, fees, and restitution, and how linking these two systems together exacerbates the harms caused by each.  When payment of outstanding financial sanctions is made a condition of probation, failure to pay can result in being found in violation of probation and punished accordingly.

Through a 50 state survey and interviews with over 100 lawyers, judges, probation officers, and advocates, we explore how linking probation to financial sanctions leads to increased debt amounts, longer system involvement, and highly punitive responses to nonpayment.  On the basis of these and other findings, we call for a complete decoupling of probation and financial sanctions systems.

We release this report amidst a historic outcry for meaningful change in the wake of more senseless deaths at the hands of law enforcement.  As momentum on that front continues to build, we hope that this report can serve as a resource to advocates, lawmakers, and others who are thinking broadly about necessary and long overdue changes, including changes to other harmful aspects of our criminal legal system.

We’ve included a one-page summary of our findings, as well as the full report.  We hope this report can help you in your work.

Sharon Brett, Neda Khoshkhoo, and Mitali Nagrecha

June 15, 2020 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Reentry and community supervision | Permalink | Comments (0)

Wednesday, June 10, 2020

"Sentenced to Surveillance: Fourth Amendment Limits on Electronic Monitoring"

The title of this post is the title of this notable new paper authored by Kate Weisburd and recently posted to SSRN.  Here is its abstract:

As courts and legislatures increasingly recognize that “digital is different” and attempt to limit government surveillance of private data, one group is conspicuously excluded from this new privacy-protective discourse: the five million people in the United States on probation, parole, or other forms of community supervision.  This Article is the first to explore how warrantless electronic surveillance is dramatically transforming community supervision and,as a result, amplifying a growing privacy-protection disparity: those in the criminal legal system are increasingly losing privacy protections even while those not in the system are increasingly gaining privacy protections.  The quickly expanding use of GPS-equipped ankle monitors, as well as other forms of electronic searches, reflects unprecedented government surveillance that has yet to be regulated, scrutinized, or limited in any meaningful way.

This Article explores this phenomenon in its own right but also contends that the expanding disparity in privacy protections is explained by two underappreciated but significant shifts in Fourth Amendment jurisprudence.  First, on the theory that defendants “choose” surveillance in exchange for avoiding incarceration, courts increasingly invoke consent to justify otherwise unconstitutional surveillance of people on community supervision.  While the debate over criminal justice bargaining is not new, the expanded reliance on consent in this context reveals blind spots in the existing debate.  Second, courts also increasingly accept government arguments in favor of otherwise unconstitutional electronic monitoring under a general “reasonableness” standard, as opposed to the traditional “special needs” doctrine.  This insidious shift toward “reasonableness” threatens to jeopardize the precise interests the Fourth Amendment was designed to protect.  But even under a reasonableness standard, electronic surveillance of people on community supervision should be more circumscribed.  Ultimately, this Article reveals how the significance of these two shifts extends beyond electronic surveillance and represents a new frontier of sanctioning warrantless searches without any level of suspicion or exception to the warrant requirement.

June 10, 2020 in Criminal Sentences Alternatives, Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Technocorrections, Who Sentences | Permalink | Comments (0)

Tuesday, June 09, 2020

Big new Heritage report takes stock of DOJ's risk and needs assessment system resulting from FIRST STEP Act

The Heritage Foundation has this week released this new 30-page report authored by Charles Stimson that takes a close look at the risk and needs assessment system created by the Justice Department as required by the FIRST STEP Act.  The title of the report captures its basic theme: "The First Step Act’s Risk and Needs Assessment Program: A Work in Progress."  Here is a summary from this Heritage webpage:

The First Step Act is a significant achievement. It was a rare moment in time when a bipartisan congressional delegation and an Administration supported meaningful and comprehensive criminal justice reform. Stakeholders from across the ideological spectrum came together to get behind much-needed legislation. A key pillar to that reform ultimately succeeding is the creation and implementation of a 21st-century risk and needs assessment system. To date, the Department of Justice has risen to part of the challenge by publishing PATTERN, its risk assessment tool. No doubt, PATTERN will continue to be refined, as any modern risk assessment program is only as good as the latest science and research.

And here is the conclusion of the full report:

The First Step Act is a significant achievement.  It was a rare moment in time when a bipartisan congressional delegation and an Administration supported meaningful and comprehensive criminal justice reform.  Stakeholders from across the ideological spectrum came together to get behind much-needed legislation.

A key pillar to that reform ultimately succeeding is the creation and implementation of a 21st-century risk and needs assessment system.  To date, the DOJ has risen to part of the challenge by publishing PATTERN, its risk-assessment tool.  In short order, it refined PATTERN after taking into consideration a wide variety of viewpoints.  No doubt, PATTERN will continue to be refined, as any modern risk-assessment program is only as good as the latest science and research.

With respect to developing a new and improved needs-assessment program under PATTERN, the DOJ has so far fallen short, but has acknowledged an ambitious time frame in which to publish that program.

As PATTERN matures, and more data becomes available, we will be able to ascertain how accurate PATTERN is in predicting recidivism and whether, in its application, it proves to be both race and gender neutral and an effective tool.  The DOJ should continue to be prudent in studying the data as it accrues and considering a wide variety of feedback on PATTERN, and should base future decisions based on fact and the best science available, not political considerations or outcome-based desires.

June 9, 2020 in FIRST STEP Act and its implementation, Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Wednesday, June 03, 2020

"Retributive Expungement"

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

Expungement relief was introduced in the mid-twentieth century to reward and incentivize rehabilitation for arrestees and ex-offenders and to protect their privacy.  Recently, many states have broadened their expungement remedies, and those remedies remain useful given the negative effects of public criminal records on reentry.  But recent scholarship has suggested an “uptake gap,” meaning many who are eligible never obtain relief.  Despite broadening eligibility, petitioners face substantial obstacles to filing, pre-hearing hurdles, waiting periods, and difficult standards of review without the assistance of counsel.  And even when expungement is granted, the recipients are basically left on their own to guarantee the efficacy of the remedy.  Some of these attributes of expungement were originally conceived as features, designed to ensure only the most rehabilitated received relief, allowing the state to continue to pursue public safety objectives with public criminal records.  But the cold reality of expungement procedure leaves many petitioners facing insurmountable obstacles that amplify the effects of the punishment originally imposed.

In exploring this reality, this Article illustrates that expungement procedure is stuck in a rehabilitative and privacy-centric paradigm.  While this framework inspired the creation of expungement remedies and recent reforms, it also has justified onerous procedural obstacles and the placing of the burden of persuasion on the petitioner rather than the state.  Outside of automated expungement, which is still relatively rare and restricted to only certain types of petitions, most expungement regimes in substance or through procedure invert what should be the state’s burden to justify retention of criminal records that enable extra punishment by state and private actors.  An alternative theoretical basis for expungement is necessary to convince policymakers and decision-makers of the need for broader substantive and procedural reform.

This Article suggests a different paradigm: retributive based expungement.  It proposes that incorporating retributive constraints that already underlie the criminal system can benefit petitioners.  Plenty of arrestees do not deserve stigma and ex-offenders have done their time, meaning punitive stigma from public criminal records can amount to unwarranted punishment.  A retributive-minded expungement procedure would all but guarantee expungement in the case of arrests, where the desert basis is questionable, and would place the burden of proof on the state for convictions once desert has been satisfied.  As such, this approach can supplement the case for broader eligibility, automated expungement, and favorable pre-hearing procedures that limit the uptake gap.  It also has legal and political viability given that many states already maintain retributivist constraints on sentencing and given that huge swaths of the public perceive desert as a crucial component of any criminal justice issue.  In fact, some states are already moving in this direction and can serve as a model for the rest of the country.  In short, retributivist constraints can trim procedural overgrowth to supplement substantive reforms that already recognize the disproportionate effects of a public criminal record.

June 3, 2020 in Collateral consequences, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (0)

Saturday, May 23, 2020

"Boxed Into a Corner: The Fight to Ban Employers from Boxing out Deserving Job Applicants on the Basis of Criminal Record"

The title of this post is the title of this new paper recently posted to SSRN and authored by Mariah L. Daly, a recent graduate The Ohio State University Moritz College of Law.  This paper is part of a student paper series supported by the Drug Enforcement and Policy Center.  Most of the papers in this series have come from the marijuana seminar I teach, and I blog about these papers in posts like this over at my Marijuana Law, Policy & Reform blog.  But this paper emerged from my sentencing class last fall, and the topic remains so timely and important.  Here is this paper's abstract:

Between 70 and 100 million adults have a criminal record of some kind that are revealed by criminal background checks.  One of the most severe and pervasive collateral consequences is difficulty securing gainful employment.  Ban-the-Box reform is crucial as a starting point for fair chance hiring, especially in the age of rapidly developing technology and the largely unfettered ability to get information.  The availability of criminal records has functioned less as a “public safety” precaution and more like a scarlet letter branded on the chest of millions Americans.  Demanding unnecessary disclose of criminal records before a conditional job offer hinders reintegration, increases recidivism, jeopardizes public safety, sabotages the economy, affronts human dignity, and causes devastating harm to society overall.

This paper argues that Ban-the-Box laws should be expanded and made uniform across jurisdictions to help prevent against unjust discrimination based on criminal record.  The vast differences in the levels of protection provided across Ban-the-Box jurisdictions and their shortcomings are analyzed and model Ban-the-Box legislation that incorporates concepts from the most protective existing laws is proposed.

May 23, 2020 in Collateral consequences, Reentry and community supervision, Who Sentences | Permalink | Comments (2)

Tuesday, May 12, 2020

"Helping People Transition from Incarceration to Society During a Pandemic"

The title of this post is the title of this notable new report authored by Sterling Johnson and Leo Beletsky.  Here is part of its executive summary:

In the best of times, the reentry process is extraordinarily difficult and emotionally taxing.  Returning people are rarely truly free, as they typically must navigate a long list of onerous rules.  This may include electronic monitoring, housing restrictions, and curfews.  They must also struggle against the sanctioned stigma of a criminal record, restricting education, employment, and housing opportunities.  Since healthcare, substance use treatment, and other support services are utterly lacking behind bars, reentry is a time of extreme physical and mental health risk.  This includes the odds of fatal overdose, which is up to 130 times more likely for those in the first two weeks post-release than in the general population.

But these are not normal times.  The coronavirus pandemic is drastically compounding the challenges of reentry.  With the economy in freefall, some requirements of supervised release — like obtaining housing and employment — are virtually unattainable.  People reentering society are facing increased risk of homelessness, as halfway housing is unavailable and their own families may be reluctant to take them in if they come from facilities with COVID-19 infections.  Increased reliance on communication over the phone and the web for health and other services make the digital divide among returning people literally a matter of life and death.

The bottom line is that systems designed to assist reentry — crude and insufficient as they were — are no match for these times.  Prisons and jails must release more people to reduce the risk of infection behind bars, but this effort must be coupled with major scale-up in reentry services.

While policymakers are ignoring the needs of reentering people, polling suggests that the public overwhelmingly supports additional measures, including:

  • 60% of all respondents, including 50% of those identifying as Republican, support supplying smart phones and phone plans for people reentering society.
  • 66% of respondents, including 61% of those identifying as Republican, support a program that would help those reentering society obtain work, training and/ or education to ensure they are able to provide for themselves.
  • 53% of respondents support providing hotel rooms to allow individuals to self-isolate upon release if they have been exposed to coronavirus behind bars.
  • 56% of respondents — including 51% who identify as Republican — agree that returning citizens should be provided 12 months of stable housing.
  • 52% of respondents support the temporary repeal of criminal record bans for healthcare profession licensing for people otherwise qualified and not a risk.

As COVID-19 is devastating correctional institutions and their surrounding communities, decarceration measures are finally gathering momentum.  Efforts to decarcerate must always include increased support for people through the reentry process.  In the age of COVID-19, the health and human rights imperative for safe reentry has never been more urgent.

May 12, 2020 in Reentry and community supervision | Permalink | Comments (1)

Thursday, April 30, 2020

"Resentencing of Juvenile Lifers: The Philadelphia Experience"

The title of this post is the title of this notable new report authored by Tarika Daftary-Kapur and Tina Zottoli.  Here is its executive summary and key findings:

EXECUTIVE SUMMARY

We examined the Philadelphia District Attorney Office’s approach to juvenile lifer resentencing, which began in 2017 under the administration of District Attorney Seth Williams and has continued under the administration of District Attorney Larry Krasner.  For cases resentenced as of December 31st, 2019, we describe similarities and differences between the Williams and Krasner administrations in decision making and sentence length reductions, and we report on the recidivism rate and estimated cost savings for Pennsylvania as a result of release.

In June 2012, the Supreme Court of the United States (SCOTUS) ruled in Miller v. Alabama that mandatory life without-parole (LWOP) sentences were unconstitutional for individuals who were under the age of 18 at the time of their offense (hereafter, juveniles).  In January 2016, SCOTUS, ruled in Montgomery v. Louisiana that Miller applied retroactively.  Following Montgomery, individuals previously sentenced to mandatory LWOP as juveniles (hereafter, juvenile lifers) became eligible for resentencing.  Accordingly, in almost all such cases, the district attorney’s office makes an offer for a new sentence to the defendant, who is free to accept the offer or to have his new sentence decided by the judge.

At the time Miller was decided, Philadelphia had the largest number of juveniles sentenced to LWOP in the country (approximately 325).  Yet, they have been at the forefront of the resentencing process nationally, and at the time of this writing have only 10 juvenile-lifers left to re-sentence; the main reasons for delay being an open Post Conviction Relief Act petition or a pending appeal.

In Philadelphia, re-sentence offers are decided by The Juvenile Lifer Resentencing Committee ("The Lifer Committee"), which comprises 8 members of the executive staff at the District Attorney's Office.  The Lifer Committee’s decisions are based primarily on the consideration of case-summary memos prepared for the Committee by the Assistant District Attorney leading the resentencing process. Memos include information on the facts of the original case, demographic information on the victim and offender, mitigating information, the offenders’ prison adjustment (e.g.misconducts,rehabilitative programming), information on acceptance of responsibility and remorse, the victim’s family’s perspective on release, and reentry plans.

In January 2018, as the resentencing process was underway, Larry Krasner was sworn in as the District Attorney of Philadelphia after having run on a reform platform, ushering in dramatic change to the culture and policies of the District Attorney’s Office.  This change in administrations, during a crucial resentencing project, provided us with a unique opportunity to examine how the priorities and policies of the new administration have affected prosecutorial decision making.  Moreover, in light of the growing recognition that addressing the incarceration epidemic will necessitate re-evaluation of long-term prison sentences for individuals who were convicted of violent offenses, these outcome data have implications far beyond just those that pertain to the resentencing and release of juvenile lifers....

KEY FINDINGS

  • Pennsylvania has resentenced 88% of its juvenile lifers as compared to Michigan (52%) and Louisiana (approx. 15-22%); the three states in combination account for 2/3rd of all juvenile lifers in the United States.

  • Juvenile lifers can be considered low-impact releases in terms of risk posed to public safety.  At the time of our analyses, 269 lifers have been re-sentenced in Philadelphia and 174 have been released.  Six (3.5%) have been re-arrested.  Charges were dropped in four of the cases and two (1%) resulted in new convictions (one for Contempt and the other for Robbery in the Third Degree).  In comparison, nationally, an estimated 30% of individuals convicted of homicide offenses are rearrested within two years of release.

  • A subset of 38 cases were considered for resentencing by both the prior and current administrations.  The average sentence offered in these cases by the prior administration was 38.8 years; under Krasner, the average offer in these cases was 27.6 years.  Across all cases, this difference equates to an additional reduction of 394 years.

  • Overall, release of Philadelphia's juvenile lifers, to date, will result in an estimated minimum $9.5M savings in correctional costs for Pennsylvania over the first decade.

  • For both the Williams and Krasner administrations, Lifer Committee offers were explained by years in custody at time of resentencing, charge severity, whether the defendant was the primary actor, and whether a re-entry plan is in place.  There were some differences. While both administrations considered the maturity of the offender, the Williams administration relied on defendant age at the time of the offense and the level of planning, whereas the Krasner administration relied on a more holistic evaluation of the juvenile nature of the crime (e.g., involvement of an adult co-defendant, presence of peers, context in which the murder was committed).  Prior convictions also weighed more heavily under Krasner than the prior administration.

April 30, 2020 in Assessing Miller and its aftermath, Data on sentencing, Offender Characteristics, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (5)