Sentencing Law and Policy

"Voices Of Redemption: A National Survey Of People With Records"

The title of this post is the title of this notable recent report from the Alliance for Safety and Justice.  Here is its executive summary:

States across the nation continue to grapple with the need for changes in our criminal justice and public safety systems.  There is increasing recognition that over-reliance on incarceration without enough prevention and treatment locks communities into cycles of crime.

The voices and experiences of people who are impacted by crime and incarceration are critical to informing the urgent debate on public safety and defining the best path forward to stop the cycle of crime and promote safety and justice.

Understanding the short and long-term impacts of these policies, however — particularly the impacts of post-sentencing policies on people with records — has been alarmingly limited.

To help decision-makers understand these impacts, in March, 2023, Alliance for Safety and Justice commissioned a first-of-its-kind National Survey of People with Records.  A nationally representative sample of 4,060 people across the country were contacted.  From that pool, 554 people who had been arrested, convicted, or incarcerated were interviewed about their experiences with, and impacts of contact with the criminal justice system.

The 2023 National Survey of People with Records reveals that the majority of people with records have suffered significant barriers to economic mobility as a result of their record, nearly all have been victims of crime who did not receive support in the aftermath of harm, and most experienced crisis prior to arrest.

The following key findings from this survey point to opportunities for further research and reform to advance policies that balance accountability, prevention, rehabilitation, and second chances that keep all communities safe.

Deep dives in "back-end" sentencing problems in two east coast states

Today brought the release of two notable reports on problematic back-end sentencing practices in two states.  Both reports merit more careful attention that this one post can provide, but here are the basics:

From the Prison Policy Initiative, "Excessive, unjust, and expensive: Fixing Connecticut's probation and parole problems."  A snippet:

This report provides lawmakers and advocates fundamental information to advance essential probation and parole reforms in Connecticut, changes that will reduce unnecessary incarceration and supervision; increase fairness, justice, and public safety; and save taxpayer dollars and other resources.  The report reviews the policies and data related to community supervision and technical violations in Connecticut and describes concrete ways to improve these systems. It also gives an overview of New York’s recent parole reforms, with recommendations for lawmakers and others working to shape meaningful legislation in Connecticut and beyond.. Given the immediate and ongoing signs of success in New York, any state can look to the provisions of the Less Is More Act to help determine ways to reduce excessive supervision and incarcerated populations.

What follows is a deep dive into the policies and practices that entangle too many people in the web of ongoing supervision and cycles of imprisonment in Connecticut. Those who are on probation and parole live in fear of arrest and incarceration for nearly any action that could constitute a violation — a gross misuse of resources and a disservice to families in Connecticut.  By allowing people to remain in their communities, the state can better provide residents the help they may need in the place where they’re most likely to succeed. Connecticut has a momentous opportunity to reshape the probation and parole systems and deliver racial, economic, and procedural justice to people under supervision.

From the Justice Policy Initiative, "Safe at Home: Improving Maryland’s Parole Release Decision-Making." A snippet:

This document highlights the best available research and practice in the parole field and provides recommendations for improvements to Maryland’s parole decision-making process. To develop these recommendations, JPI consulted with experts who provide technical assistance to states looking to improve their parole practices, reviewed research on parole practice and outcomes, spoke with attorneys who assist individuals applying for parole, consulted with family members and individuals who have experience with the Maryland parole system, and examined best practices in parole in other states to identify areas of needed improvement in Maryland....

The parole grant rate decreased between 2020 and 2021 despite the emergence of COVID-19 in early 2020.  Many jurisdictions around the country expedited the release of individuals from prison to reduce the spread of the virus. This was typically accomplished by moving up parole eligibility by months and expanding the number of people eligible for a hearing.  However, Maryland data reveal sharp declines in newly eligible individuals, hearings, and the releases granted.

Grant rates in Maryland follow a bell curve pattern. Emerging adults (25 years of age and younger) report a grant rate of 37 percent.  The rate increases to a high of 43 percent for people between the ages of 31 and 35, steadily declining as individuals age. People over 60 are paroled at a rate of 28 percent.  Parole grant rates that decline with age run counter to everything we know about trends in criminal offending.  Crime is a young person’s endeavor, and the likelihood of reoffending drops precipitously after age 40.  

Prison Policy Initiative details "Punishment Beyond Prisons 2023: Incarceration and supervision by state"

Prison Policy Initiative has produced this intricate new report detailing how many folks are under correctional control in every state and throughout the entire US.  The report is titled "Punishment Beyond Prisons 2023: Incarceration and supervision by state," and here is how it gets started:

The U.S. has a staggering 1.9 million people behind bars, but even this number doesn’t capture the true reach of the criminal legal system.  It’s more accurate to look at the 5.5 million people under all of the nation’s mass punishment systems, which include not only incarceration but also probation and parole.

Altogether, an estimated 3.7 million adults are under community supervision (sometimes called community corrections) — nearly twice the number of people who are incarcerated in jails and prisons combined.  The vast majority of people under supervision are on probation (2.9 million people), and over 800,000 people are on parole.  Yet despite the massive number of people under supervision, parole and probation do not receive nearly as much attention as incarceration.  Policymakers and the public must understand how deeply linked these systems are to mass incarceration to ensure that these “alternatives” to incarceration aren’t simply expanding it.

We’ve designed this report specifically to allow state policymakers and residents to assess the scale and scope of their entire correctional systems.  Our findings raise the question of whether community supervision systems are working as intended or whether they simply funnel people into prisons and jails — or are even replicating prison conditions in the community.  The report encourages policymakers and advocates to consider how many people under correctional control don’t need to be locked up or monitored at all, and whether high-need individuals are receiving necessary services or only sanctions.

In this update to our 2018 report, we compile data for all 50 states and D.C. on federal and state prisons, local jails, jails in Indian Country, probation, and parole.  We also include data on punishment systems that are adjacent to the criminal legal system: youth confinement and involuntary commitment.  Because these systems often mirror and even work in tandem with the criminal legal system, we include them in this broader view of mass punishment. We make the data accessible in one nationwide chart, 100+ state-specific pie charts and a data appendix, and discuss how the scale and harms of these systems can be minimized.

Justice Department releases latest annual report on FIRST STEP Act implementation

The US Department of Justice recently released this notable report titled simply "First Step Act Annual Report, April 2023." Here is the 50+-page report's simple introduction:

The First Step Act of 2018 (“First Step Act,” “FSA,” or “Act”) was the culmination of a bipartisan effort to improve criminal justice outcomes and reduce the size of the federal prison population, while maintaining public safety. Under Section 101 of the Act, now codified in 18 U.S.C. § 3634, the Attorney General is required to submit a report beginning two years after the date of enactment, and annually thereafter for a period of five years.  The Department of Justice (the Department) submitted its last such report to Congress in April 2022.  This is the third Annual Report submitted pursuant to Section 3634.

What follows is an extraordinary amount of information and data about FIRST STEP Act implementation on many fronts, and here is just one of a half-dozen items of note that is flagged in the report's executive summary:

Enhance the use of home confinement and prerelease custody.  Consistent with the FSA’s emphasis on transitioning individuals to a community setting, the Department has expanded the use of home confinement for individuals who do not pose a danger to the community.  As of January 28, 2023, 13,501 individuals have been released from Residential Reentry Centers (RRCs), home confinement (HC), and secure facilities pursuant to credits earned under the First Step Act.  On April 4, 2023, the Department also issued a final rule granting discretion to the Director of the Bureau of Prisons to allow individuals placed in home confinement under the Coronavirus Aid, Relief, and Economic Security (CARES) Act to remain in home confinement after the expiration of the covered emergency period.  The final rule provides the Bureau the discretion and flexibility to impose proportional and escalating sanctions for individuals who commit infractions, including returning them to prison.  It also allows the Bureau to move individuals into RRCs when needed, including instances when the home residence is no longer viable or due to either minor accountability issues or non-significant disciplinary issues.  Consistent with the final rule, the Director of the Bureau of Prisons also instructed that any individual placed on home confinement under the CARES Act will remain on home confinement under the CARES Act for the remainder of their sentence, provided that they are compliant with the rules and regulations of community placement.  Since the enactment of the CARES Act on March 26, 2020, the Bureau of Prisons has placed more than 12,000 individuals in home confinement under CARES Act authority.  Of those, only a fraction of one percent has been returned to secure custody due to new criminal conduct.

Latest reporting of US District Court's experience getting involved with supervised release

A couple of helpful folks recently focused my attention on the notable work that SDNY US District Judge Richard M. Berman has been doing in the arena of federal supervised release.  This work is discussed by Judge Berman in this Regulatory Review article, titled “Federal Court Involvement in Supervised Release,” and here is the start of this article:

In most cases, individuals’ release from federal prison does not mark the end of their sentences. A federal criminal sentence typically also includes a term of “supervised release,” which the U.S. Sentencing Commission defines as a “unique type of post-confinement monitoring that is overseen by federal district courts with the assistance of federal probation officers.”  Supervised release is intended to assist people who have served prison terms with their effective reintegration, or “reentry,” into the community.

Judges are not always actively involved in overseeing supervision.  Rather, officers of the U.S. Probation Office play the dominant role in monitoring individuals on supervised release.  Judges tend to become more involved only after a supervisee has failed to comply with the terms of supervision.  As a result, judges may miss the opportunity meaningfully to assist with reentry and to help ensure that necessary services such as drug treatment, mental health counseling, and housing and employment assistance are provided.

Over the past five-plus years, my chambers staff and I developed a more active and involved approach to supervised release.  The practice features regular supervised release hearings intended to help ensure that supervisees succeed and avoid further negative involvement in the criminal justice system.  Importantly, this practice also includes early termination of supervised release for all those who have shown that they no longer need supervision.

That Regulatory Review article also provides a link to a 2021 report with data about how this court involved supervised release functioned and some of its impacts.  A 2022 version of this report (as will as some slides) were sent my way recently, and are available in links below.  And here is part of the executive sumary of this latest report:

In this report, we provide results from our court involved supervised release project. Data and case studies are presented from the perspectives of recidivism and desistance from crime—in the areas of rearrest, return to prison, and early termination of supervision.

The Study Population rearrest rates over three and five years are 17.1% and 20.4%, respectively; the return to prison rate is 13.2%; and the early termination rate is 46.2%. These results include all Study Population supervisees and make no adjustments for “risky” supervisees.

Acknowledging that comparisons are at best imprecise, we include an AO study which shows rearrest rates of 20.8% at three years (16.3% adjusted) and 27.7% at five years (page 20); a Bureau of Justice Statistics study which shows a return to prison rate of 31.6% (page 22); and an AO early termination study which shows a rate of 18.8% (page 34).

The approach and outcomes presented in our report are very encouraging. At the same time, it is premature to conclude or to celebrate that recidivism is decreasing (page 8).

A fair conclusion to be reached from the data and the case studies is that judges who become actively involved in supervision — together with dedicated probation officers and others — can unequivocally and meaningfully assist supervisees to safely and successfully reenter their communities.

Download Judge Berman Supervised Release Report (2022.10.12)

Download Judge Berman 2023.04.05 Supervised Release Slides

"Is Expanding Eligibility Enough?: Improving Record Sealing Access and Transparency in Ohio Courts"

The title of this post is the title of this notable new report authored by Jana Hrdinova and now available via SSRN. (Through my work at the Drug Enforcement and Policy Center, I was able to review a prior draft of this important paper about record sealing data.)  Here is the paper's abstract:

The collateral consequences stemming from a criminal conviction are far reaching and long-lasting, affecting people’s ability to obtain housing, diminishing employment opportunities, and limiting educational attainment.  In the last decade, some research has shown that record sealing and record expungement can have significant benefits for individuals through increased economic prosperity and for communities through reduced recidivism.  Unfortunately, research also indicates that in states that require individuals to file a petition to get their record sealed, only a small percentage of eligible individuals take advantage of this remedy.

Over the last decade, the Ohio General Assembly significantly broadened eligibility criteria for record sealing and expungement.  But whether laws focused solely on broadening eligibility have a significant impact on record sealing utilization remains an understudied topic.  The data from our research indicates a 55% increase in the number of granted record sealing applications in the state of Ohio from 2011 to 2021, but also suggests a relatively low rate of uptake when compared to the potential pool of eligible residents.  Additionally, we report on the lack of jurisdiction specific data resulting in inability to compare utilization rate across jurisdictions, as well as lack of accurate and up to date information about eligibility criteria and record sealing forms on court websites. In conclusion we provide a set of recommendations for addressing identified challenges.

New Prison Policy Initiative briefing explores "the unmet needs of people on probation and parole"

The Prison Policy Initiative has this notable new briefing titled "Mortality, health, and poverty: the unmet needs of people on probation and parole." Authored by by Emily Widra and Alexi Jones, here is how it starts (with links from the original, but footnotes removed):

Research shows that people on probation and parole have high mortality rates: two and three times higher than the public at large. That certainly suggests that our community supervision systems are failing at their most important — and basic — function: ensuring people on probation and parole succeed in the community.

With a similar approach to our recent series regarding the needs of people incarcerated in state prisons, we did a deep dive into the extensive National Survey on Drug Use and Health (NSDUH).  The results of this survey, administered by the U.S. Department of Health and Human Services’ Substance Abuse and Mental Health Services Administration (SAMHSA), provide key insights into these specific — and often unmet — needs faced by people under community supervision.  Because this survey asks respondents if they were on probation or parole in the past 12 months, this dataset comes closer than any other source to offering a recent, descriptive, nationally representative picture of the population on probation and parole.

The data that we uncovered — and the analyses of this same dataset by other researchers discussed throughout — reveal that people under community supervision have high rates of substance use and mental health disorders and extremely limited access to healthcare, likely contributing to the high rates of mortality. Moreover, the data show that people on probation and parole experience high rates of chronic health conditions and disability, are extremely economically marginalized, and have family obligations that can interfere with the burdensome — often unnecessary — conditions of probation and parole.

"Senate Bill 288: Implications for the Criminal Justice System in Ohio"

The title of this post is the title of this notable new webinar scheduled for next week (April 12 starting at 12noon), which has been organized by Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law.  Here is a bit of the backstory and the panel lineup:

Over the last decade, the Ohio General Assembly has expanded the eligibility criteria for record sealing on several occasions.  The passage of the criminal justice omnibus Senate Bill 288, signed into law by Governor DeWine in January 2023, continues this trend by further expanding eligibility and, for the first time ever, allowing for prosecutor-initiated record sealing on behalf of individuals with certain types of offenses.  Other long-fought-for reforms in SB 288 include, but are not limited to, expansion of expungement provisions, increasing the maximum amount of earned credit for persons in prison, and a host of other provisions modifying crimes and corrections law in Ohio.

Join the Drug Enforcement and Policy Center for a multi-panel event on Ohio Senate Bill 288 that will bring together criminal justice experts and advocates for a discussion of some of the key provisions of SB288 and their likely impact as well as the opportunities and challenges of government-initiated record sealing, and its likely adoption by Ohio prosecutors.

Panel 1: Understanding SB288: Key Provisions and Likely Impacts

noon - 1:10 p.m.

• Louis Tobin, Executive Director, Ohio Prosecuting Attorneys Association
• Senator Nathan Manning, Ohio 13th Senate District
• Alex Jones, Criminal Justice Counsel, Ohio Criminal Sentencing Commission
• Jocelyn Rosnick, Policy Director, ACLU of Ohio
• Kevin Werner, Policy Director, Ohio Justice & Policy Center
• Douglas A. Berman, Newton D. Baker-Baker & Hostetler Chair in Law; Executive Director of the Drug Enforcement and Policy Center (moderator)
   

Panel 2: Prosecutor Initiated Record Sealing

1:15 - 2:30 p.m. 

• Mark Griffin, Law Director, City of Cleveland
• Tori Edwards, Legal Department Staff Attorney, Franklin County Municipal Court
• Pam Lattimore, Senior Director for Research Development, Division for Applied Justice Research,  RTI International
• Sara Andrews, Executive Director, Ohio Criminal Sentencing Commission (moderator)

More details and a simple registation form can be found at this link.

Tenth Circuit deepens split over considering retribution in revocation of federal supervised release

In this post a few weeks ago, I flagged a recent Congressional Research Service document which fully detailed a jurisprudential divide among the circuits over justifications for supervised release revocation.  As that document detailed: 

The federal appeals courts disagree as to whether, and to what extent, retribution may justify the revocation of supervised release in light of this statutory omission. On one side of the divide, the U.S. Courts of Appeals for the First, Second, Third, Sixth, and Seventh Circuits have held that federal courts may consider retribution in making revocation decisions. On the other side, the Fourth, Fifth, and Ninth Circuits have concluded that courts either may not consider retribution in these decisions at all or may consider it only to a limited degree.

Notably, yesterday a Tenth Circuit panel jumped into the action and agreed with the minority of other circuit via US v. Booker, No. 22-7000 (10th Cir. March 28, 2023) (available here). Here is how the 17-page opinion in Booker gets started:

After Donald Joe Booker, Jr. repeatedly violated the terms of his supervised release, the district court revoked his supervision and sentenced him to twenty-four months in prison, the statutory maximum.  For the first time on appeal, Mr. Booker argues that the district court erroneously based his sentence for violating supervised release on retribution whereas the statute governing the revocation of supervised release implicitly prohibits considering retribution.  See 18 U.S.C. § 3583(e).

We review Mr. Booker’s sentence for plain error.  Clarifying the scope of 18 U.S.C. § 3583(e), we hold that district courts may not modify or revoke a term of supervised release based on the need for retribution.  Because the district court quoted from a § 3553(a) sentencing factor representing retribution, we conclude that the district court erred. But even assuming this error was plain, Mr. Booker has not shown that it affected his substantial rights because we conclude there is no reasonable probability that his sentence would have been shorter had the court not erred. Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we AFFIRM Mr. Booker’s twenty-four-month sentence.

Because of the plain error issue, this new Booker case would likely not make a good vehicle for SCOTUS to resolve this deep circuit divide over supervised release decision-making. (And, as a silly aside, I certainly would not be keen to have another major "Booker" sentencing ruling.)  But, given US Sentencing Commission data showing over 20,000 supervised release violation hearings taking place every year, there are on average nearly 100 federal defendants at least potentially impacted by this jurisprudential divide every single day in federal courts.  SCOTUS really should resolve this matter sooner rather than later if we think some semblance of equal justice is of importance in our federal criminal sentencing systems.

"Criminal Justice Record Clearing: An Analysis from Two States"

The title of this post is the title of this new paper authored by Matthew Stubenberg, Renee Danser and D. James Greiner now available via SSRN.  Here is its abstract:

Millions in the United States have criminal records.  Many of these records are eligible for some sort of concealment from public view, commonly known as expungement or sealing. In this paper, we analyzed criminal records in four counties in Pennsylvania and several counties in Kansas to determine the number of records eligible for such remedies.  In Pennsylvania, the analysis included both expungement, defined here as petition-based suppression of information, and sealing, defined here as suppression that the government (usually the judicial system) undertakes without petitions.  Kansas law only allows for petition-based expungement.  Our analysis found approximately 100,000 charges eligible for expungement in Kansas and 180,000 charges eligible for expungement in Pennsylvania, supporting prior research that identified a so-called “second chance gap.”

Our primary contribution, however, is an analysis of which statutory reforms would provide the biggest bang for the buck, i.e., would render the largest number of cases or charges eligible for a record-clearing remedy.  We found, for example, that elimination of criteria related to legally imposed financial obligations (“LIFOs”) would render a surprising number of files eligible for information suppression.  In addition, our analysis identified approximately 200,000 charges that were eligible for sealing in Pennsylvania but were still available to the public online at the time of the data retrieval, suggesting that even when the government undertakes information suppression from its own databases, it finds the task challenging.  Finally, our analysis examined why certain records were not eligible for expungement or sealing in each state.  This additional analysis will inform legislatures and activists where their efforts can best be put to use.

New CRS piece reviews circuit split over justifications for revoking supervised release

A helpful reader alerted me to this notable new "Legal Sidebar" from the Congressional Research Service.  As suggested by the title, "Can Retribution Justify the Revocation of Supervised Release? Courts Disagree," the piece details a jurisprudential divide among the circuits for the justification for supervised release revocation.  Here is how the five-page report begins:

What are the legitimate reasons that a government may subject an individual to criminal punishment?  Western penological theory and American legal history generally identify four principled bases for criminal punishment: retribution, deterrence, incapacitation, and rehabilitation.  The Sentencing Reform Act (SRA) requires federal courts to impose an initial sentence that reflects these purposes of punishment.

The SRA also authorizes federal courts to sentence defendants to supervised release, encompassing a set of conditions that the defendant must comply with upon release from prison for a period of time (or, for some offenses, for up to life).  A defendant’s compliance with these conditions is “supervised” or monitored by a federal probation officer.  If a defendant violates a condition, the court may revoke the supervised release and send the defendant back to prison, among other things.  The SRA lists deterrence, incapacitation, and rehabilitation among the factors that a judge must consider in making these revocation determinations.  The SRA does not, however, expressly include retribution as one such factor.

The federal appeals courts disagree as to whether, and to what extent, retribution may justify the revocation of supervised release in light of this statutory omission.  On one side of the divide, the U.S. Courts of Appeals for the First, Second, Third, Sixth, and Seventh Circuits have held that federal courts may consider retribution in making revocation decisions.  On the other side, the Fourth, Fifth, and Ninth Circuits have concluded that courts either may not consider retribution in these decisions at all or may consider it only to a limited degree.

This Sidebar summarizes the four purposes of punishment, including retribution; offers an overview of supervised release; and summarizes the aforementioned split.  The Sidebar concludes with congressional considerations.

Former BOP director talks up need for second step to follow up FIRST STEP Act

Hugh Hurwitz, who served as Acting Director of the Federal Bureau of Prisons from May 2018 to August 2019, has this notable new Hill commentary headlined "First Step Act was only half the job; now a ‘Second Step’ is needed." It is worth reading in full, and here are  excerpts:

The First Step Act (FSA) was a landmark achievement in the area of criminal justice reform.  It came at a time of partisan politics and a divided Congress and was the only significant bi-partisan legislation passed during the Trump administration....  I had a unique viewpoint at this time: I was Acting Director of the Bureau of Prisons (BOP) during the negotiations and ultimate passage of the FSA....  But how successful is it?  I argue it was a small start, hopefully, on the way to something bigger.

The FSA had two primary goals: 1) to reduce the overcrowded prison population in the BOP and 2) to provide incentives for people in prison to take recidivism reducing programs which will increase the likelihood that they will succeed upon their release and not return to prison.  In my opinion, the FSA succeeded wildly in number 1, and failed miserably in number 2.  So, in short, yes, we definitely need something bigger: a second step.

While up-to-date data has not been made available, it appears that somewhere between 10,000 and 20,000 people have already been released early under the FSA, with thousands more in the queue.  BOP is still calculating how people earn time credits, and they continue to release more in batches.  Based on those numbers alone, it is hard to argue that the FSA was not successful in reducing the prison population.

The primary incentive offered under the FSA is time credits for completion of recidivation reducing programs. Application of these time credits will allow some people to complete their sentence early and transfer to supervised release, and others to transfer early to halfway houses or home confinement.  The problem with the FSA is that while it incentivizes people to take recidivism reducing programs, the only people eligible for the coveted time credits are those already deemed to be minimum- or low-risk for recidivating.  Said another way, only people assessed as minimum- and low-risk for recidivism are eligible to earn time credits leading to early release. But those are not the people we should be incentivizing to take recidivism reducing programs.  The ones who truly need these programs are those deemed to be of medium or high risk of recidivating.  Aren’t those the people we should be focusing on?  But the FSA does not allow these people to earn time credits....

Let me be clear: I am not saying the FSA is a bad law.  On the contrary, it has resulted in increased program opportunities and other changes to our federal prison system, and it has reduced the number of people in federal prisons.  What I am saying is that the need for a Second Step is great, as people deemed medium or high risk of recidivating are released without the benefit of critical recidivism reducing programs.

About 95 percent of the people currently in our nation’s prisons will be released to our communities. They will be our neighbors.  Isn’t it imperative that we do all we can to ensure that upon release they have the skills, tools, and resources to be productive, law-abiding members of society?  We need Congress to act now, in another bi-partisan effort, to pass laws that will ensure everyone incarcerated today is incentivized and given access to programs that will help reduce their recidivism risk.

"The Right to Social Expungement"

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

In recent years, policy makers advancing criminal legal reform have engaged in attempts to correct years of harsh and expansive use of criminal laws.  Two main parallel trends dominate these attempts.  One is forward-looking — the decriminalization of many activities currently punishable by the criminal legal system.  The second is backward-looking, and related — expungement and vacatur reforms that aim to allow individuals to start fresh.

While these latter efforts are intended to erase the criminal stain from official criminal records, the non-official domain gained less traction, leading to an absurd reality in which news stories about individuals’ criminal histories remain accessible in the virtual world, practically forever.  Tragically, these online news stories are often more practically detrimental to reintegration than the official criminal records.  As such, they frustrate the criminal legal system’s efforts to correct past mistakes.

The literature on criminal legal reform thus far has given less attention to this crucial problem.  This Article contributes to narrowing this scholarly gap.  To do so, it introduces “the right to social expungement” — which recognizes the rights of individuals arrested for or convicted of offenses now vacated, expunged, legalized, or decriminalized to have stories about their past interaction with the criminal legal system removed from media websites.

Utilizing the case study of individuals arrested for or convicted of selling sex, this Article provides two theoretical justifications for recognizing this right: 1) the socio-legal paradigm of cultural shifts and its effects on existing law and policy, and 2) criminal law’s amelioration doctrine, which offers a path to retroactively apply lenient criminal justice policies.  The piece further argues that, counter to conventional wisdom, the right to social expungement can in fact sit comfortably within a plausible interpretation of the right to privacy and freedom of the press.  The Article concludes by offering preliminary guidance for establishing the right to social expungement.

"Revocation at the Founding"

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

The Supreme Court is divided over the constitutional law of community supervision.  The justices disagree about the nature of liberty under supervision, the rights that apply when the government revokes supervision as punishment for violations, and the relationship between parole, probation, and supervised release.  These divisions came to a head in 2019’s United States v. Haymond, where the justices split 4-1-4 on whether the right to a jury trial applies to revocation of supervised release.  Their dispute focused on the original understanding of the jury right at the time the Constitution was ratified.

This Article aims to settle the debate over the law of revocation at the Founding. In the late 18th-century United States, there was a close legal analogue to modern community supervision: the recognizance to keep the peace or for good behavior.  Like probation, parole, and supervised release, the recognizance was a term of conditional liberty imposed as part of the punishment for a crime, providing surveillance and reporting on the defendant’s behavior, and with violations punishable by imprisonment.  Given these similarities, the best way to determine if the original understanding of the jury right would apply to revocation of community supervision is to ask whether the common law required a jury for punishing violations of a recognizance.

Fortunately, Founding Era legal authorities make the answer to that question clear: Yes, at the time the Constitution was ratified, punishing recognizance violations required a jury trial.  This requirement only disappeared during the 19th century with the development of probation and parole, which changed the structure of community supervision from an additional penalty into a delayed punishment.  Because supervised release is structured as a penalty, not a delay, the original understanding of the jury right would apply to revocation of supervised release, even if not to probation or parole.  The law of revocation at the Founding preserves lost constitutional rights that deserve modern reconsideration and renewal.

BJS releases data on "Correctional Populations" and "Probation and Parole" at end of 2021

The Bureau of Justice Statistics today released its latest detailed accounting of national correctional populations and populations on probation and parole at the close of 2021. This BJS press release reports on some highlights and provides links to the full documents with lots and lots of data:

The total correctional population in the United States fell 1% from yearend 2020 to 2021, according to statistics in Correctional Populations in the United States, 2021 – Statistical Tables and Probation and Parole in the United States, 2021, two reports released today by the Bureau of Justice Statistics.  The number of persons held in prison or jail or supervised in the community on probation or parole decreased by 61,100, down to an estimated 5,444,900.  Overall, an estimated 1 in 48 U.S. residents age 18 or older were under correctional supervision at yearend 2021, down from 1 in 47 in 2020.

“Although the COVID-19 pandemic caused significant short-term changes in correctional estimates, the overall correctional population continues to decline,” said Dr. Alexis Piquero, Director of the Bureau of Justice Statistics.

Over the 10-year period from 2011 to 2021, the U.S. correctional population declined 22%.  A drop in the number of persons supervised in the community on probation accounted for 65% of this overall change, while decreases in the number of persons incarcerated in state and federal prison accounted for 26% of the change. 

In 2021, the U.S. incarceration rate increased for the first time in 15 years.  However, the rate was still lower than the pre-COVID-19 pandemic rate of 810 per 100,000 in 2019.  The increase in the incarceration rate was driven by a 16% growth in the number of persons housed in local jails, which held an additional 87,200 persons from 2020 to 2021.

In 2021, the community supervision rate fell to a 21-year low of 1,440 persons on probation or parole per 100,000 adult U.S. residents, after declining each year since it peaked at 2,240 persons per 100,000 in 2007. At yearend 2021, an estimated 3,745,000 adults were under community supervision, down 136,600 persons from January 1, 2021. During 2021, the probation population decreased in 31 states and in the U.S. federal system and increased in 18 states and the District of Columbia. The rate of adults on probation in 2021 was at its lowest point in 36 years (1,143 per 100,000 adult U.S. residents)....

Changes in the demographic characteristics of the U.S. correctional population were small from 2020 to 2021 but were greater than 20% over the decade from 2011 to 2021.  The number of males in the total correctional population declined less than 1% (down 28,300) from 2020 to 2021, while the number of females decreased 3% (down 32,800). Compared to 2011, the number of males under correctional supervision in 2021 declined by 21% and females decreased 25%.  Over that same decade, the number of black persons under correctional supervision decreased more than 27%, while the number of Hispanic persons declined 21% and whites declined 20%.

“It is important to note that while blacks and Hispanics remain incarcerated at greater rates than whites, we are seeing long-term reductions in those differences,” said Director Piquero.

Correctional Populations in the United States, 2021 – Statistical Tables was written by BJS Statisticians E. Ann Carson, PhD, and Richard Kluckow, DSW. It provides statistics from several BJS data collections on persons living in the community while supervised by probation or parole agencies and those incarcerated under the jurisdiction of state or federal correctional authorities or in the custody of local jails.

Probation and Parole in the United States, 2021 was written by BJS Statistician Danielle Kaeble. Findings are from BJS’s Annual Probation Survey, Annual Parole Survey and Federal Justice Statistics Program, which are the only national data collections that cover community corrections in all 50 states, the District of Columbia and the U.S. federal system.

CCJ releases "Long sentences, better outcomes: Opportunities to improve prison programming"

I keep noting this post from earlier this year discussing the Council of Criminal Justice's impressive Task Force on Long Sentences, in part because that Task Force is continuing to produce all sorts of interesting documents about long sentences (see prior posts linked below).  The latest report, available here, is authored by Roger Przybylski and is titled "Long sentences, better outcomes: Opportunities to improve prison programming."  Here is the report's introduction: 

People serving long prison sentences — defined as sentences of 10 years or more — make up a large and growing share of the prison population in the United States.  In 2005, roughly 459,000 people were serving long sentences, accounting for 46% of the state prison population.  By 2019, the number had grown to 524,000 and the proportion to 57%.

Policymakers, practitioners, and researchers have long been interested in prison-based programming that prepares people to engage productively in their communities post-release and reduces recidivism (i.e., re-arrest, reconviction, or reincarceration).  Although a robust body of knowledge on the types of prison programs most strongly associated with reduced recidivism has been developed over the past 40 years, research on the effectiveness of these programs has not focused specifically on participants serving long sentences.

Fewer than 10 prison systems have implemented programs specifically for people serving long sentences in recent years; these programs are in their infancy and have not yet been rigorously evaluated for effectiveness.  They focus on enhancing skills for adapting to prison life and/or mentoring younger incarcerated individuals serving shorter sentences — and are not designed to comprehensively meet the therapeutic, reentry, and other needs of people serving long sentences.  As a result, relatively little is known about the development, implementation, and effectiveness of programming that targets the unique needs of those in prison for long periods of time.

This brief describes the specialized needs of individuals serving long sentences, explores how prison-based programming might address those needs, describes existing programs for people serving long sentences, examines common obstacles to program access and engagement for this population, and identifies opportunities to enhance positive outcomes, both during custody and after release.

Prior related posts on CCJ's Task Force on Long Sentences:

• Notable CCJ new task force examining long prison terms
• Council on Criminal Justice releases "Long Sentences by the Numbers" 
• Council on Criminal Justice releases "Long Sentences: An International Perspective" 
• Council on Criminal Justice releases Illinois analysis of "The Public Safety Impact of Shortening Lengthy Prison Terms" 

Sentencing Project releases "Ending 50 Years of Mass Incarceration: Urgent Reform Needed to Protect Future Generations"

The folks at The Sentencing Project have a new website and a new "featured campaign" (with its own webpage) titled "50 Years and a Wake Up: Ending The Mass Incarceration Crisis In America." As explained on the webpage: "The campaign raises awareness about the dire state of the U.S. criminal legal system, the devastating impact of incarceration on communities and families, and proposes more effective crime prevention strategies for our country."

The most recent publication from the campaign is titled "Ending 50 Years of Mass Incarceration: Urgent Reform Needed to Protect Future Generations."  This eight-page document has a number of graphics and charts; its text begins this way (footnotes removed):

By year end 2021, the U.S. prison population had declined 25% since reaching its peak in 2009.  Still, the 1.2 million people imprisoned in 2021 were nearly six times the prison population 50 years ago, before the prison population began its dramatic growth. The United States remains a world leader in incarceration, locking up its citizens at a far higher rate than any other industrialized nation.

At the current pace of decarceration, averaging 2.3% annually since 2009, it would take 75 years — until 2098 — to return to 1972’s prison population.

It is unacceptable to wait more than seven decades to substantively alter a system that violates human rights and is out of step with the world, is racially biased, and diverts resources from effective public safety investments.  To achieve meaningful decarceration, policymakers must reduce prison admissions and scale back sentence lengths — both for those entering prisons and those already there.  The growing movement to take a “second look” at unjust and excessive prison terms is a necessary first step.  As the country grapples with an uptick in certain crimes, ending mass incarceration requires accelerating recent reforms and making effective investments in public safety.

Another longer document in this campaign was released a few weeks ago and is called "Mass Incarceration Trends." Among other part of that document is a chart highlighting that an era of massively increased incarceration also brought massive increases in community supervision:

As depicted in Figure 3, probation and parole have expanded both in the absolute number and length of supervision for several decades now.  Between 1980 and 2020, the number of people on probation nearly tripled and the number of people under parole supervision nearly quadrupled.

US Representatives create new "Bipartisan Second Chance Task Force"

I was intrigued and pleased to come across this press release from this past week discussing a new bipartisan group of Representative working on an important criminal justice issue.  Here are the details:

Representatives David Trone (D-MD), John Rutherford (R-FL), Kelly Armstrong (R-ND), and Lisa Blunt Rochester (D-DE) announced the creation of the Bipartisan Second Chance Task Force in an effort to promote policies that will improve reentry outcomes and reduce employment barriers for returning citizens.  At the time of its launch, the Task Force comprised of 26 Members of Congress (13 Democrats and 13 Republicans).

During its inaugural event, members and co-chairs were joined by Federal Bureau of Prisons (BOP) Director, Colette Peters, and Acting Head of National Institute of Corrections, Alix McLearen, for an introductory briefing on the challenges that the BOP faces in establishing and maintaining successful reentry programming.

Over 600,000 individuals are released from state and federal prisons every year in the United States, and recent studies show that formerly incarcerated people are currently unemployed at an average rate of over 27 percent.  The new task force aims to address these barriers to successful reentry by developing and promoting reform policies in Congress and hosting monthly roundtable discussions.

“Returning citizens continue to face hurdles that prevent them from rebuilding their lives and becoming productive members of society. After paying their debts to society, they are effectively shut out of housing, employment, financial support – you name it.  This isn’t fair, and this isn’t right,” said Congressman Trone.  “As a businessman, I know firsthand that there is a lot of value in hiring returning citizens and giving folks a second chance.  I’m proud to co-found and co-chair the Bipartisan Second Chance Task Force so that we work together – Republicans and Democrats – to address the problems in our criminal justice system head-on, and provide returning citizens with the resources they desperately need.”

“As a lifetime member of law enforcement, I saw firsthand how difficult it can be for those leaving our jails and prisons to re-enter society.  From getting an ID to finding a job, stable housing, and healthcare, these individuals face many barriers to success after incarceration. When I was sheriff, I created a robust reentry program in Northeast Florida, and I look forward to continuing that work in Congress.  Helping the formerly incarcerated become productive members of society makes our communities safer and reduces the number of repeat offenders.  That’s not being soft on crime, that’s being smart on crime,” said Congressman John Rutherford.  “I look forward to working with Representatives Trone, Armstrong, and Blunt Rochester, and all of my colleagues on the Second Chance Task Force, to support those reentering society and reduce recidivism.”...

Other Members of Congress in the Task Force include Bonnie Watson Coleman (D-NJ), Nancy Mace (R-SC), Danny Davis (D-IL), G.T. Thompson (R-PA), Barbara Lee (D-CA), Guy Reschenthaler (R-PA), Mary Gay Scanlon (D-PA), Stephanie Bice (R-OK), Dan Goldman (D-NY), Barry Moore (R-AL), Paul Tonko (D-NY), Rick Crawford (R-AR), Glenn Ivey (D-MD), Anthony D’Esposito (R-NY), Ann McLane Kuster (D-NH), David Rouzer (R-NC), Brittany Pettersen (D-CO), Randy Weber (R-TX), Wiley Nickel (D-NC), Dan Meuser (R-PA), Susan Wild (D-PA), John James (R-MI).

Effective look at the many ugly realities of probation

The March 2023 issue of Reason magazine has this terrific article about probation systems authored by C.J. Ciaramella and Lauren Krisai. This lengthy piece is worth a full read, and its full title notes its basic themes: "U.S. Probation System Has Become a Quagmire: What was originally intended as an alternative to incarceration has become a system for mass state control." Here are excepts from the start and first part of the piece:

Shortly after becoming a mother in summer 2013, Jennifer Schroeder was arrested for a drug charge.  Schroeder, who lives outside of Minneapolis, Minnesota, pleaded guilty and was sentenced to serve 365 days in Wright County Jail.  And 40 years on probation.

Probation terms vary by state.  They can include curfews, restrictions on travel, submitting to warrantless searches, paying court fees, holding down a job, and abstaining from alcohol and drugs, to the point of being prohibited from even entering a bar.  For Schroeder it means a near-lifetime ban on voting or owning a gun, and the looming threat of eight years behind bars if she ever violates her terms.  For the privilege of being subjected to all this, there are also fees owed to the state — all to live on the edge of a life-destroying prison sentence....

While many gauge the criminal justice system by the population of jails and prisons, probation affects more lives.  And while it is clearly less punitive than being locked in a prison cell, it is still a form of onerous correctional control.  Probation is supposed to help people get their lives back on track while staying accountable and keeping the public safe, but in many states offenders are set up to fail in systems that can't or won't give them the opportunity to succeed.

It's a scattershot array of state-run systems that, over nearly 200 years, has evolved away from its original purpose of providing public accountability and rehabilitation without punishment, quietly transforming into a secondary criminal justice system hiding in plain sight.  As it has evolved, it has lost much of its original purpose, leaving even many of the system's enforcers uncertain about a fundamental question: What is probation supposed to be for?

And here is part of a section of the article about just some of the restrictions probationers face:

When a person is sentenced to probation, there are numerous terms and conditions that he or she must adhere to or face potential consequences. Sometimes these conditions are set by statute, but more often they are assigned by the judge, a state or county probation department, or an individual probation officer.  According to a joint report issued by the American Civil Liberties Union (ACLU) and Human Rights Watch in 2020, people under supervision across the country "must comply with an average of 10 to 20 conditions a day."

In Wisconsin, a person on probation has to obtain written approval from their probation agent to purchase, trade, or sell a car.  New York, Kansas, Georgia, Texas, and South Carolina require that probationers avoid "injurious and vicious habits," while New York, Kansas, Georgia, and South Carolina also require they avoid "persons or places of disreputable or harmful character."  It's common to be prohibited from consuming alcohol, even if the crime was unrelated to drinking....

Beyond that, probationers sometimes have curfews imposed, are unable to cross state or county lines without first getting permission, and expect unannounced drop-ins from officers.... In addition, those on probation are stripped of otherwise constitutionally protected rights. "I live in a really bad neighborhood, and I can't carry any kind of protection," Schroeder says....  Minnesota also doesn't allow offenders to vote until they complete the terms of their criminal sentence, so Schroeder isn't supposed to cast a ballot until 2053.

And here is part of the discussion of probation's contribution to incarceration:

Over the last four years, 42–45 percent of prison admissions were for probation or parole supervision violations. Roughly a quarter of all admissions to prison are for technical violations of probation or parole, such as missing an appointment.

Some states and localities have introduced graduated sanctions for technical violations and more discretion to probation officers, so offenders don't have probation revoked for their first minor screw-up. But in some states, people on probation are often set up to fail. Instead of being an alternative to prison, it simply ends up delaying incarceration.

For example, Idaho has a staggeringly high rate of prison admissions for probation and parole violations.  According to a report this year from the Idaho Department of Correction, 80 percent of 2021's admissions had either violated probation, violated parole, or failed a rider....  The overwhelming majority of admissions to prison in Wisconsin are also for supervision violations. More than 63 percent admitted to prison in 2021 were there for such a violation, and 40 percent were admitted for a technical violation of supervision.  Kansas also has a high admission to prison rate for probation violations — 44 percent of admissions to prison in fiscal year 2021 were for a violation of probation.

"Are Schools in Prison Worth It? The Effects of and Economic Returns to Prison Education"

The title of this post is the title of this paper available via SSRN and authored by Steven Sprick Schuster and Ben Stickle. Here is its abstract:

We estimate the effects of various forms of prison education on recidivism, post-release employment, and post-release wages.  Using a sample of 148 estimates drawn from 78 papers, we conduct a meta-analyses to estimate the effect of four forms of prison education (adult basic education, secondary, vocational, and college).  We find that prison education leads to decreases in recidivism and increases in post-release employment and wages.  The largest effects are experienced by prisoners who participated in vocational or college education programs. 

We also calculate the economic returns on educational investment for both prisons and prisoners.  We find that each form of education yields large, positive returns, due primarily to the high costs of incarceration, and therefore high benefits to crime avoidance.  The returns vary across education types, with vocational education featuring the highest return to each dollar spent ($3.10) and college seeing the highest positive impact for each student participating ($16,863).

Some highlights from Ohio's sweeping new criminal justice reform bill

From sentencing to prison reform to marijuana policy to record relief, Ohio has long been a state with all sort of dynamics developments across a range of criminal law and policy issues of great interest to me.  And, as this local article details, these dynamic realities continued in the Buckeye State at the end of 2022 and into 2023 as the Ohio General Assebly finally completed a long-in-development major criminal reform bill known as Senate Bill 288.  There is so much in the massive SB 288, I am still looking for an effective and complete summary.  But the press piece reviews some of the parts I wish to highlight here:

Gov. Mike DeWine on Tuesday signed into law an enormous criminal justice reform bill making it easier for Ohioans to adjust to life after their release, giving state officials wider latitude to release inmates early, reducing the consequences of minor marijuana offenses, and reducing underage drinking penalties, among dozens of other provisions.

The most high-profile part of the new law, added shortly before it passed the legislature, toughens Ohio’s distracted-driving laws. But the 1,000-page bill, which passed the legislature with overwhelming support, also makes the greatest changes to Ohio’s criminal code in years.

The new law, which takes effect in early April, was the product of nearly two years of work by state lawmakers and various agencies and groups. DeWine, before signing Senate Bill 288 during a Statehouse signing ceremony, said that while Ohioans might not agree with every part of the legislation, “everybody was heard” about their opinions. “I think legislators should be complimented on the fact that they reached out to prosecutors, that they reached out to defenders, that they reached out to law-enforcement agencies,” the governor said....

Two of the most important parts of SB288 will expand when people convicted of crimes can seek to have their criminal records sealed – in other words, kept private with limited exceptions – or expunged, meaning their record is destroyed altogether. Proponents argue that sealing and expunging helps to address widespread problems with former inmates getting housing, being offered a job, or securing a loan because of their criminal record.

Other parts of the new law will:

Allow prosecutors or city law directors to expunge thousands of low-level marijuana possession offenses, as well as ensure that arrests or convictions for possessing marijuana paraphernalia won’t appear on Ohioans’ criminal records.

Give the Department of Rehabilitation and Correction, the state’s prison agency, more power to decide when inmates should be granted an early release.

Set up a process for inmates to ask a judge for early release when the Ohio governor declares a state of emergency due to a pandemic or other public health crisis.

Allow inmates to shave more time off their sentences for participating in educational, job training, or drug treatment programs.

Expand Ohio’s “Good Samaritan” law that provides immunity from arrest or prosecution for people who seek medical assistance for an overdose – either on their own behalf or for someone else – as long as the person receiving that legal protection is referred to addiction treatment within 30 days....

Create the new offense of “strangulation,” which would range from a fifth-degree felony to a second-degree felony. Domestic-abuse advocates have worked for years to pass such a law, pointing to research indicating that victims who are strangled by their partner are more than seven times as likely to end up being murdered by their abuser....

Require a minimum five-year prison sentence for anyone convicted of “aggravated vehicular homicide” in cases where the victim is a firefighter or an emergency medical worker. The change was brought in response to the death of Cleveland firefighter Johnny Tetrick, who was killed during a hit-and-run along Interstate 90 last month.

Decriminalize fentanyl test strips, used to test substances for the opioid. Test strips are currently classified by Ohio law as “drug paraphernalia,” and people found to possess them can face up to 30 days in jail. Supporters of the move argue it will help reduce fatal overdoses in the state; critics say the strips can help drug users look for fentanyl, which was involved in 81% of Ohio overdose deaths in 2020, according to the Ohio Department of Health.

The Sentencing Project releases (already dated) review of "Top Trends in Criminal Justice Reform, 2022"

The folks at The Sentencing Project yesterday released this terrific new fact sheet that reviews a number of state criminal justice reforms developments in this past year.  I recommend the short document in full for all the reviewed details, but here is part of the overview:

State lawmakers in at least 15 states and Washington D.C. adopted policy reforms in 2022 that may contribute to decarceration and addressing collateral consequences while promoting effective approaches to public safety.  This briefing paper provides an overview of recent policy reforms in the areas of extreme sentencing and decarceration, drug policy, prison reform, probation and parole, guaranteeing voting rights, and youth justice.

Changes in criminal justice policy were realized for various reasons, including an interest in managing prison capacity. Lawmakers have demonstrated interest in enacting reforms that recognize that the nation’s scale of incarceration has produced diminishing returns for public safety.  However, stakeholders working to reform adult and youth criminal legal system practices also encountered rhetoric on increases in violent crime which impacted the ability to adopt significant reforms like the repeal of mandatory minimum sentences and expansion of alternatives to incarceration for prison bound defendants.  Consequently, legislators and other stakeholders have prioritized implementing policies that provide a more balanced approach to public safety.  The evolving framework is rooted in reducing returns to prison for technical violations, expanding alternatives to prison for persons convicted of low level offenses and authorizing earned release for prisoners who complete certain rehabilitation programs.

Interestingly, more than half the states with notable reforms in the past year referenced in this report are so-called red states (e.g., Alabama, Florida, Indiana, Kentucky, Missouri, Oklahoma, Tennessee, Wyoming). And I call this review "already dated" because early this morning, Ohio moved a significant step closer to being another red state to complete significant criminal justice reform this year.  This local article reports the basics:

Ohio lawmakers finalized a sweeping criminal justice reform bill Thursday morning that backers say will reduce the burden on previously incarcerated Ohioans and reduce the likelihood that they return to prison.

Senate Bill 288 tackles a wide range of reforms, including changes that would make it easier to expunge criminal records and shorten prison sentences.  The bill got considerably longer Wednesday when lawmakers added distracted driving prohibitions, anti-corruption measures and increased penalties for failing to report elder abuse.

"The Constitutional Limits of Criminal Supervision"

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

Nearly four million people are under criminal supervision in the United States.  Most are on probation or parole.  They can be sent to prison if a judge concludes that they violated the terms of their supervision.  When that happens, there is no right to a jury trial.  The violation only needs to be proven to a judge by a preponderance of the evidence.  This creates a constitutional puzzle.  In several important cases, the Supreme Court has recognized that the Sixth Amendment right to trial by jury is not limited to the formal elements of criminal statutes.  It applies in any situation where proving a fact to a court triggers additional punishment.  So then why is criminal supervision constitutionally permitted, when it involves judges sending people to prison based on facts not proven to a jury?  Under current doctrine, the answer is surprisingly unclear.  The Court’s 2019 decision in United States v. Haymond raised this issue directly, but failed to provide an answer.

This Article proposes a new solution to this constitutional puzzle: the conditional sentencing theory.  This theory explains how criminal supervision can be made compatible with the Sixth Amendment.  It holds that a criminal sentence can include provisions that change the defendant’s custody status if certain conditions are satisfied.  Such a sentence contains an amount of custody time, an amount of supervision time, an amount of suspended custody time for supervision violations, and a list of acts that trigger violations.  Under this theory, a judge sentencing a person for a supervision violation is not imposing a new punishment.  They are instead implementing the terms of the original sentence, switching someone from supervision to custody based on triggering rules announced at the initial sentencing hearing.

The conditional sentencing theory places two important constitutional limits on criminal supervision, which are not currently recognized.  First, a judge cannot retroactively change a supervision sentence by lengthening it, adding more conditions, or adding more prison time.  Second, a sentence for a supervision violation cannot exceed the statutory maximum for the underlying crime.  Numerous state and federal supervision laws transgress these limitations.  Many state probation laws, for example, let judges extend probation or change its terms at a violation hearing.  In some states, like Wisconsin and Pennsylvania, this process can repeat indefinitely.  The same is true in the federal system of supervised release.  That system lets judges extend supervision unlimited times, keeping supervisees trapped in an endless cycle of new punishments — a life sentence on an installment plan.  The Article closes by arguing more broadly that judges should direct greater constitutional scrutiny at institutions, like criminal supervision, that make incarceration more efficient by circumventing defendants’ rights.

"It is Time to Reform Federal Supervised Release"

The title of this post is the title of this notable new commentary at the ACS Expert Forum authored by Aliza Hochman and Jacob Schuman. I recommend the piece in full, and here are excerpts (with links from the original):

This fall, eight U.S. Senators (three Democrats and five Republicans) introduced the Safer Supervision Act of 2022, which aims to make federal supervised release more efficient, more effective, and less punitive.  As law professors who study criminal punishment and previously served in federal public defender offices, we urge Congress to pass this important legislation.

“Supervised release” is the federal equivalent of parole.  Judges impose supervised release on convicted defendants at sentencing, to follow their term of imprisonment.  If a defendant violates a condition of supervised release, then the judge can “revoke” their supervision and send them back to prison for up to five years.  Officially, the purpose of supervised release is to “afford adequate deterrence,” “protect the public,” and to “provide … correctional treatment,” not to inflict punishment.  The supervision is meant to “fulfill[] rehabilitative ends, distinct from those served by incarceration.”

In reality, however, the federal supervised release system has become bloated and excessively punitive.  Over 100,000 people are currently serving terms of supervised release, which is more than five times the number in the 1970s....  In approximately one-third of cases, the government ultimately revokes the defendant’s supervised release, sending more than 15,000 people to prison annually. Supervised release has also become a “central front in the War on Drugs.”  Drug offenders make up the largest proportion under federal supervision, and judges impose drug-treatment conditions on more than half of all supervisees, with as many as 3,000 revocations every year for drug-use.

Working at federal public defender offices, we witnessed the excesses of this system firsthand. We routinely saw clients sentenced to five, ten, or even twenty years of supervised release, based on just a few words of explanation from the judge, condemning them to spend vast spans of their lives subject to carceral control with hardly any discussion or consideration.  We also defended multiple clients suffering from substance-use disorder who were sent to prison solely for violating their supervised release by relapsing during drug treatment.  These experiences made clear to us that the federal supervision system is in dire need of reform.

The Safer Supervision Act would make three important changes to federal supervised release.  First, the Act would require sentencing judges to conduct an “individualized assessment” of how much supervised release is appropriate when they sentence a defendant....  Second, the Act would create a presumption of early termination of supervised release for individuals who have completed half of their term of supervision, so long as they demonstrate “good conduct and compliance” and do not jeopardize public safety....  Finally, the Act would amend a widely condemned provision of federal law that requires judges to revoke supervised release and impose a prison sentence on supervisees who use drugs, possess drugs, or fail multiple drug tests....

In addition to these three substantive changes, the Act would also direct the Comptroller General to conduct a much-needed study on federal community supervision and reentry, including a public report on the work of the federal Bureau of Prisons and Office of Probation and Pretrial Services....

If enacted, the Safer Supervision Act would be the first legislation in history reducing the size and severity of federal supervised release.  The Act should appeal equally to conservatives wary of government waste and progressives concerned about overcriminalization.  The reforms it proposes are incremental but important and worthy of serious consideration by members of Congress.  We commend this bipartisan political effort to make federal community supervision more effective and more just.

"The Progressive Case for Ankle Bracelets"

The title of this post is the headline of this notable new Newsweek opinion piece authored by Barry Latzer.  I recommend the piece in full, and here are excerpts:

Many of the most progressive countries in the world are making use of technology to promote rehabilitation and reduce incarceration.  Yet blue states like Massachusetts and left-leaning advocacy organizations remain hostile to use of electronic monitoring (EM) methods.  They are overlooking the benefits of EM — even from a progressive standpoint.

Progressives' typically formulated criminal justice goal is laudatory: to minimize incarceration consistent with public safety, and to maximize the rehabilitation of offenders. But achieving these ends has been, to say the least, problematic.

Progressives commonly urge more addiction treatment and mental health services as steps toward rehabilitation. These treatments might be beneficial for many ex-offenders, but by themselves they are unlikely to sharply curtail recidivism.  Vocational training is also useful, but success measured by societal reintegration of ex-offenders is unproven.  Despite all that we've learned about rehabilitation over the last five decades, the inescapable fact is that over 80% of all prisoners are rearrested for new crimes at some point after they are released.

Virtually all prisoners return to free society — and more quickly than most people realize.  Only 20% of prisoners complete full sentences, and the median time actually served is a mere one year and four months.  Released offenders are then monitored by parole or probation officers, who are supposed to encourage constructive behavior.  But as we all know, these officers have enormous caseloads and cannot effectively supervise the volume of people they are assigned.  Under the current parole and probation system, there are, as a practical matter, few disincentives to crime, which is why so many released offenders are repeaters.

Each year, tens of thousands of probationers and parolees fail to comply with the terms of their release and are sent back to jail or prison.  In 2019, before COVID produced its own distinct brand of decarceration, 334,000 probation and parole failures were (re)incarcerated, which constituted 29% of all prison admissions that year.

Given these discouraging realities, the benefits of EM from a progressive standpoint surely are worth reconsidering.

1. EM helps ex-offenders avoid incarceration and reintegrate into free society....

2. EM can effectively replace incarceration....

3. EM protects crime victims, especially the most vulnerable....

Before we reject this useful tool to help ex-offenders turn their lives around and avoid wasted years behind bars, we should ask ourselves this question: Is there a better way to achieve reintegration into law-abiding society, while also taking public protection into account?  I submit there is not.

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

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

The reforms focus on nine areas:

• Expanding alternatives to criminal justice system responses to social problems
• Reducing the number of people entering the “Revolving doors” of jails and prison
• Improving sentencing structures and release processes to encourage timely and successful releases from prison
• Reducing the footprint of probation and parole systems and supporting success on supervision
• Protecting incarcerated people and families from exploitation by private contractors
• Promoting physical and mental health among incarcerated and formerly incarcerated people
• Giving all communities equal voice in how our justice system works
• Setting people up to succeed upon release
• Eliminating relics of the harmful and racist “war on drugs”

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior related posts:

• Retired Missouri judge now expressing regret about giving 16-year-old offender 241 years in prison for role in two armed robberies 
• After Missouri expands parole eligibility for certain juve offenders, Bobby Bostic secures parole 25 years after getting 241-year sentence 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior related posts:

• Another encouraging report on those released under federal CARES Act
• Celebrating "real" recidivism is essentially nil, and even technical violations stunningly low, for CARES home confinement cohort 

Another encouraging report on those released under federal CARES Act

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

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

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

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

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

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

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

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

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

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

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

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

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

Download Tompkins Order on CARES Act return procedures

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

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

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

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

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

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

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

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

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

"How Little Supervision Can We Have?"

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A few prior related posts:

• What might be crime and punishment echoes if Supreme Court overturns Roe v. Wade?
• Without Roe, what does sentencing law and policy look like surrounding criminalized abortions? 
• Continuing to scratch the sentencing surface if Roe is overturned and abortions are criminalized 
• SCOTUS overrules Roe with Dobbs ruling, raising new criminal justice and sentencing issues
• A focus on local prosecutors as abortions now are subject to broad criminalization after Roe's reversal
• Reviewing and reflecting on what criminalization of abortion could and will mean 

Two different criminal justice reforms now effective in two southern states

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

"Florida criminal justice reform laws go into effect Friday"

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

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

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

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

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

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

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

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

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

Overview

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

Key Findings

In the last five fiscal years:

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

Among offenders who were released in 2010:

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

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

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

Overview

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

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

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

Key Findings

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

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

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

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

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

Occupational Education Program (OEP)

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

Federal Prison Industries (FPI)

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

Occupational Education Programs (OEP)

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

Federal Prison Industries (FPI)

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

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

Latest issue of FSR examines "Federal Community Supervision"

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

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

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

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

One Nation Under Supervision by Jacob Schuman

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

The Reconstruction of Federal Reentry by Scott Anders, Jay Whetzel

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

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

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

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

The Judicial Role in Supervision and Reentry by Jacob Schuman

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

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

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

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

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

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

Reforms Our Broader Criminal Justice System

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

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

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

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

"Paying for a Clean Record"

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

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

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

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

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

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

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

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

  Key Findings

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

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

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

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

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

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

The dissent by Judge Underhill starts this way:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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