Saturday, January 02, 2021

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

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

About the Contest

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

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

Contest Timeline and Awards

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

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

Wednesday, December 30, 2020

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

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

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

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

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

Prior related posts:

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

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

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

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

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

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

Monday, December 28, 2020

Reviewing remarkable recent criminal justice reforms in the state of Michigan

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, December 22, 2020

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

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

About the Contest

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

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

Contest Timeline and Awards

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

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

Saturday, December 19, 2020

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

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

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

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

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

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

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

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

Thursday, December 03, 2020

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

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

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

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

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

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

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

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

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

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

Saturday, November 21, 2020

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

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

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

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

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

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

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

(1) laws legalizing and decriminalizing marijuana;

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

(3) pardon programs specific to marijuana offenses.

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

Saturday, October 31, 2020

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

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

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

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

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

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

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

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

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

Wednesday, October 28, 2020

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

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

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

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

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

Download Trump and the First Step Act October 2020

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

Thursday, October 22, 2020

"Felony Disenfranchisement and the Nineteenth Amendment"

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

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

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

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

Wednesday, October 21, 2020

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

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

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

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

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

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

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

Monday, October 12, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sunday, October 11, 2020

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

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

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

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

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

Tuesday, October 06, 2020

Collateral Consequences Resource Center releases "The Reintegration Report Card"

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

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

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

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

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

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

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

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

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

Thursday, October 01, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, September 17, 2020

"Public opinion and the politics of collateral consequence policies"

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

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

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

Saturday, September 12, 2020

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

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

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

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

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

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

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

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

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

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

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

Tuesday, September 08, 2020

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

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

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

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

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

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

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

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

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

Thursday, August 27, 2020

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

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

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

Highlights:

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

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

Thursday, August 20, 2020

Amazing resources and insights from the Collateral Consequences Resource Center

Regular readers are used to my regular reminders to regularly check out work over at the Collateral Consequences Resource Center.  Doing so recently brings up a terrific series of posts drawn from a forthcoming report surveying mechanisms for restoring rights and opportunities following arrest or conviction.  Here are posts from this series:

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

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

Wednesday, August 12, 2020

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

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

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

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

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

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

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

Sunday, August 09, 2020

"Supervised Release Is Not Parole"

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

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

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

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

Tuesday, August 04, 2020

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

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

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

Friday, July 31, 2020

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

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

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

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

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

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

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

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

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

"The Prisoner and the Polity"

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

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

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

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

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

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

Tuesday, July 28, 2020

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

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

Summary

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

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

July 28, 2020 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (9)

Monday, June 15, 2020

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

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

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

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

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

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

Sharon Brett, Neda Khoshkhoo, and Mitali Nagrecha

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

Wednesday, June 10, 2020

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

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

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

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

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

Tuesday, June 09, 2020

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

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

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

And here is the conclusion of the full report:

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

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

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

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

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

Wednesday, June 03, 2020

"Retributive Expungement"

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

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

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

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

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

Saturday, May 23, 2020

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

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

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

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

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

Tuesday, May 12, 2020

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

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

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

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

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

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

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

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

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

Thursday, April 30, 2020

"Resentencing of Juvenile Lifers: The Philadelphia Experience"

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

EXECUTIVE SUMMARY

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

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

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

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

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

KEY FINDINGS

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

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

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

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

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

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

Tuesday, April 28, 2020

"Policy Reforms Can Strengthen Community Supervision: A framework to improve probation and parole"

Figure1_650The title of this post is the title of this lengthy new report produced by The Pew Charitable Trusts Public Safety Performance Project. Here are excerpts from the report's "Overview":

Since 1980, the nation’s community supervision population has ballooned by almost 240 percent. As of 2016, 1 in 55 U.S. adults (nearly 4.5 million people) are on probation or parole, more than twice the number incarcerated in state and federal prisons and local jails. Historically, probation and parole were intended to provide a less punitive, more constructive alternative to incarceration, but a growing body of evidence suggests that a frequent emphasis on surveillance and monitoring of people under supervision rather than on promoting their success, along with the resource demands of ever-larger caseloads, has transformed community supervision into a primary driver of incarceration. This shift has produced an array of troubling consequences, not only for individuals on probation and parole but for taxpayers and communities as well.

In recent years, a growing body of evidence on what works in community supervision has revealed a set of key challenges that undermine the system’s effectiveness and merit attention from policymakers:

• Community supervision is a leading driver of incarceration....

• Excessive rules can present barriers to successful completion of supervision....

• Agencies often inappropriately supervise low-risk individuals....

• Overextended supervision officers have less time to devote to high-risk, high-need individuals....

• Many people with substance use or mental health disorders do not receive treatment.... 

To address these problems, some supervision agencies have begun to embrace evidence-based practices that have been shown to improve outcomes and reduce recidivism. These include the use of research-based assessment tools to identify an individual’s level of risk for reoffending, graduated sanctions, such as increased reporting or short-term incarceration, to respond to violations of supervision rules, and incentives to encourage rule compliance.  As a result of these and other policy changes, 37 states have experienced simultaneous reductions in crime and community supervision rates.

Although those results are encouraging, states and agencies need time to analyze their systems and enact reforms on a much larger scale to ensure that probation and parole function more effectively.  To help states meet this challenge, The Pew Charitable Trusts, in partnership with Arnold Ventures, established the Advisory Council on Community Supervision to develop a policy framework for state lawmakers, court officers, and community corrections personnel. The council featured a diverse group of representatives from probation and parole agencies, the courts, law enforcement, affected communities, the behavioral health field, and academia. Drawing on its members’ extensive experience and knowledge, the council agreed on three broad goals for the next generation of community supervision: better outcomes for people on supervision, their families, and communities; a smaller system with fewer people on supervision; and less use of incarceration as a sanction for supervision violations, particularly breaches of the rules.

With those goals in mind, the council developed a menu of policies that state decision-makers and supervision administrators can use to reshape community supervision. Arnold Ventures supported the Robina Institute of Criminal Law and Criminal Justice at the University of Minnesota to examine the research underlying the policies and practices identified by the council, and where such an evidence base exists, it is summarized and cited in this framework. The recommendations are arranged according to seven broad objectives:

• Enact alternatives to arrest, incarceration, and supervision....

• Implement evidence-based policies centered on risks and needs....

• Adopt shorter supervision sentences and focus on goals and incentives....

• Establish effective and appropriate supervision conditions....

• Develop individualized conditions for payment of legal financial obligations....

• Reduce use of and pathways to incarceration.... 

• Support community supervision agencies.... 

April 28, 2020 in Collateral consequences, Criminal Sentences Alternatives, Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (0)

Wednesday, April 22, 2020

"COVID-19 Model Finds Nearly 100,000 More Deaths Than Current Estimates, Due to Failures to Reduce Jails"

The title of this post is the title of this new ACLU report, and here are some excerpts from the first few pages of the intricate 12-page document:

Models projecting total U.S. fatalities to be under 100,000 may be underestimating deaths by almost another 100,000 if we continue to operate jails as usual, based on a new epidemiological study completed in partnership between academic researchers and ACLU Analytics.  That is, deaths could be double the current projections due to the omission of jails from most public models.  Numbers used by the Trump administration largely fail to consider several factors that will explosively increase the loss of life unless drastic reforms are adopted to reduce the nation’s jail populations....

As a result of the constant movement between jails and the broader community, our jails will act as vectors for the COVID-19 pandemic in our communities.  They will become veritable volcanoes for the spread of the virus.  The spread of COVID-19 from jails into the broader community will occur along two vectors that are ignored in typical models:

1. Churn of the jail population — individuals are arrested, sent to jail, potentially exposed to COVID-19, released on their own recognizance, post bail, or are adjudicated not guilty and are subsequently released. Upon release, the virus will spread through their families and communities unless the individual is quarantined.

2. Jail staff — staff come to work each day and are exposed to COVID-19, then return home and infect their families and communities.  This vector applies to jails, prisons, and detention centers.  There are ~420,000 people who work in jails and prisons in the U.S.

Unfortunately, the radical approaches adopted in broader society to reduce other high-density transmission hubs — the closure of schools, the closure of non-essential businesses, and the enactment of stay-at-home orders — have not been emulated with regard to our jails.  Some states have begun to see a reduction in their jail populations, such as Colorado, where there has been a 31 percent reduction, potentially saving ~1,100 lives (25% of projected deaths in the state).  However, all states need to do more, and most states have failed to take any steps to stem the impact of the COVID-19 pandemic in jails and the broader community.

April 22, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (0)

Sunday, April 19, 2020

Advocates pushing back on SBA disqualifying people with any record from business relief

Last week in this post, I noted the effective coverage by Collateral Consequences Resource Center of the U.S. Small Business Administration disqualifying people for small business loans based on any past criminal record during the COVID-19 pandemic.   Now CCRC has this new post, "Bipartisan coalition calls on SBA to roll back record-related restrictions in COVID-19 small business loan programs," and it starts this way:

On April 17 a diverse bipartisan group of civil rights, advocacy, and business organizations, including CCRC, sent a letter to Treasury Secretary Mnuchin and SBA Administrator Carranza expressing concern over the restrictions imposed by the SBA on people with a record of arrest or conviction under two programs recently authorized by Congress in response to the COVID-19 crisis.  The letter points out that these unwarranted restrictions on loan programs intended to aid small businesses and non-profits will have a significant and detrimental impact in communities across the country, and a particularly harsh effect on minority business owners and employees who are disproportionately affected by the criminal legal system as a result of institutional discrimination.  It urges that federal relief be made equitably accessible to all who need it.

The letter, which is available here, includes an appendix detailing how the new rules and policies governing the Payroll Protection Program are more restrictive than those which normally are applied by the SBA.

Prior related post:

April 19, 2020 in Collateral consequences, Impact of the coronavirus on criminal justice, Reentry and community supervision, Who Sentences | Permalink | Comments (1)

Thursday, April 16, 2020

"Recommendations for Rapid Release and Reentry During the COVID-19 Pandemic"

The title of this post is the title of this short new report from NYU's Marron Institute of Urban Management focused on early releases and community supervision. Here is how it gets started:

People who live and work in jails, prisons, and detention facilities are at elevated risk for SARSCoV-2 infection, due to close living environments and the high prevalence of pre-existing health conditions.  Agencies will be forced, through executive direction, litigation, or necessity (due to rising infections, lack of staff, or medical capacity) to release people in their custody early and to fast-track their usual reentry processes and services.  Jails and prisons are beginning to release people.  They will need to release many thousands more, or many may die.

The Litmus program at the NYU Marron Institute was working on early release from prison prior to COVID-19.  In December 2019, the team completed a three-year pilot project (called Graduated Reintegration) that entailed releasing prisoners six months prior to their earned-release date, paired with substantial community supports, in collaboration with the Illinois Department of Corrections.  A great deal was learned about early release from prison from this work, including the mechanisms that can allow early release and the challenges reentrants face.  Many states will need to consider early release to reduce the density of their prison populations to lower the risk of COVID-19 spread, which makes the NYU Marron team’s experience of doing this in practice highly relevant.

Since early March 2020, Litmus has been working with justice agencies nationwide to learn how corrections (jails and prisons) and community corrections (probation and parole) are responding to COVID-19.  Over a four-week period, the team hosted five protocol-sharing sessions (including over 100 criminal justice system practitioners, from over twenty states).  These sessions have yielded early insights into what agencies are doing (and not doing!) to curb the spread among these vulnerable groups—justice-involved people and public-safety officers, court officers, and mental health/drug treatment providers.

Prisoners who are released will face unprecedented challenges presented by COVID-19, including obtaining necessities such as food and shelter, accessing healthcare and behavioral healthcare, and entering a job market with historically high unemployment.  Scattershot approaches to releasing prisoners, without substantial accompanying supports, will diminish prospects for succeeding in the community and may undermine future criminal justice reform efforts.

The assumptions and recommendations outlined below draw on the lessons we learned from our early-release pilot in Illinois and from practitioners who have attended our protocol-sharing sessions.  They provide guidance to agencies supporting rapid release from incarceration and community reentry in response to COVID-19 and, in the foreseeable future, facing budget shortfall.

April 16, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Sunday, April 12, 2020

Great coverage of the awful work of SBA disqualifying people with any record from CARES small business loans

The Collateral Consequences Resource Center is doing its usual bang-up job covering the misguided new business problems for people who are burdened with any kind of criminal record.  The context these days, of course, is COVID-related, and here is how the CCRC explains the issue in a recent post:

In the past two weeks we have written at length about the U.S. Small Business Administration (SBA)’s “bumpy guidance on criminal history requirements” for small business financial relief during the COVID-19 pandemic (see also “Applying for an SBA loan with a criminal record“)....  Before the pandemic, the SBA didn’t automatically disqualify people for small business loans based on a past criminal record, and we can’t understand why it would suddenly decide to do so now, when small businesses across the country are struggling to stay afloat.   (Preexisting policy, described here, disqualifies a business if it has a principal who is incarcerated, is under supervision, is facing charges, or lacks “good character.”)  The new SBA policy — which automatically disqualifies even certain people who have completed a diversionary program and were never convicted — seems entirely at odds with the wave of recent state and federal law reforms aimed at encouraging reintegration.

Here is all of CCRC's recent posting on this topic:

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

Tuesday, March 31, 2020

"Returning Citizens Should Get Checks Too"

The title of this post is the title of this recent commentary by Jennifer Doleac, which gets started this way (with links from the original):

Concerns over the rapid spread of coronavirus in jails and prisons have led to calls for inmates’ early release in order to reduce the spread of the virus.  As a result, jail and prison populations are falling dramatically.  There is good reason to release people who aren’t an immediate public safety threat — we are living through an unprecedented health crisis, and saving lives should be our top priority.  However, the rapid release of people from jail and prison, into an economy with skyrocketing unemployment, may set them up for failure.

Releasing people from prison at a time when jobs are scarce increases the likelihood that they will commit another crime and be locked up again.  This is partly because they themselves are unable to find a job, and partly because their friends and family are out of work and less able to provide crucial support.  Our rush to get people out of jails and prisons to protect their health may unintentionally make it harder for them to build stable lives and avoid criminal activity. For the sake of these individuals and their communities, we should move quickly to make sure they have the support they’ll need in the weeks and months ahead.

What should we do?  Send them checks!

People often think that jobs are the key to reducing crime, but recent research suggests that money matters more than employment itself.  Why?  Most directly, giving people money reduces the need to commit financially-motivated crimes, such as theft or robbery.  It also gives people the means to stay away from friends or family who are negative influences or might draw them back into old behaviors.  Extra disposable income also helps people access programs that put them on a permanently-better track — for instance, education or health care — and reduces financial stress that can hamper decision-making.  In practice, the structure that comes with a job doesn’t seem as important as the money that jobs provide.

It’s not obvious that giving people money will always reduce crime: If recipients spend that money on drugs or alcohol, the net effect could be negative.  But several studies show that, on average, more money equals less crime.

March 31, 2020 in Impact of the coronavirus on criminal justice, Reentry and community supervision | Permalink | Comments (0)

Friday, March 27, 2020

Guest post/question: "Will home confinement become a more (or less) attractive alternative to incarceration?"

6a00d83451574769e201b7c9134b4d970b-320wiA thoughtful and insightful colleague wrote to me this morning to pose the question in the title of this post.  I asked for a fuller write up of the query for posting, and here it is:

Section 5F1.2 of the federal sentencing guidelines defines “home detention” this way —

"Home detention” means a program of confinement and supervision that restricts the defendant to his place of residence continuously, except for authorized absences, enforced by appropriate means of surveillance by the probation office.  When an order of home detention is imposed, the defendant is required to be in his place of residence at all times except for approved absences for gainful employment, community service, religious services, medical care, educational or training programs, and such other times as may be specifically authorized.  Electronic monitoring is an appropriate means of surveillance for home detention. However, alternative means of surveillance may be used if appropriate.

For most of us, the last two weeks have genuinely been a period of home detention.  For me, I’ve been supervised in my confinement not by a probation officer, but my wife and daughters, who, should I venture out too far or too long, are quick to send me an electronic message to return home.  [I think this meets the term “alternative means of surveillance” as used in 5F1.2.]  And of course, I am not approved for absences for gainful employment (telework), religious services (cancelled), or educational or training programs (Zoom).

Later today, the House of Representatives will pass legislation that will expand the use of home confinement for federal prisoners to address the current COVID crisis, and Attorney General Barr has already issued a directive to the Bureau of Prisons to expand its use (see earlier posts here and here).  Many of us for years have advocated for the expanded use of home confinement and electronic monitoring as alternatives to imprisonment and to reduce the nation’s reliance on imprisonment for punishing convicted offenders.  I’m not sure, though, now that we all have experienced home confinement, whether it will be a more — or less— attractive alternative to incarceration.

Doug — What do you think?   

Readers — What do you think?

My first-cut answer to this great question is an answer I have been trotting out a lot these days: "Who the heck knows, but I am eager to find out."

I am certain many people are not enjoying their personal "home confinement," and will be finding it more and more burdensome in the weeks to come.  But I also know that personal "home confinement" still likely would be, and surely should be, seen as much less burdensome than actually being incarcerated. (A recent Marshall Project speaks to this reality: "No, Your Coronavirus Quarantine Is Not Just Like Being in Prison.")   I fear that many persons may be inclined to say, after the pandemic resolves, some version of "Criminals should always face a harder experience than I did during COVID."

That all said, so much of the reality of criminal justice administration can be shaped by economics, especially at the state level where incarceration costs take up a much larger percentage of overall state budgets.  Home confinement surely will always be much cheaper than imprisonment, and finding cheaper punishments may become extremely important (for states in particular) if we are facing a long recession that makes limited state resources even more scarce. 

Last but certainly not least, if some states moved a significant number of current prisoners into home confinement while others do not, we will be starting an interesting and important "natural experiment" on the efficacy of home confinement relative to imprisonment.  Though this "natural experiment" will not be able to give us conclusive data on whether home confinement serves public safety as well as imprisonment, advocacy for decarceration are likely to highlight this experience if we do not see a huge spike in crime in those states that have decarcerated more.

March 27, 2020 in Criminal Sentences Alternatives, Impact of the coronavirus on criminal justice, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (3)

Thursday, March 26, 2020

FAMM urges AG Barr to use new pending CARES Act provision to move federal prisoners into home confinement

I have not yet seen the exact language of the provision in the sure-to-pass federal CARES Act that expands the authority of the Justice Department and the Bureau of Prisons to move more persons from federal prison into home confinement.  But I have seen this new press release from FAMM, which starts this way:  

FAMM President Kevin Ring sent a letter today urging U.S. Attorney William Barr to immediately use his authority to release eligible people to home confinement as soon as the CARES Act becomes law.  The CARES Act, which was passed by the Senate last night and is expected to be approved by the House and signed by the president, permits the Director of the Federal Bureau of Prisons to lengthen the maximum amount of time that a prisoner may be placed in home confinement, if the U.S. Attorney General finds that emergency conditions will materially affect the functioning of the BOP.

“In order to prevent unnecessary deaths and suffering, the BOP needs to get as many people out of prison as it safely can and get them to home confinement immediately,” Ring said.  “Congress is giving the attorney general the authority to make that happen.  We urge the attorney general to act the moment this bill is signed into law.  Lives are at stake.”

Ring said the use of home confinement would also ease the burden on halfway houses, in which movement has been restricted, employment opportunities have been halted, and people are confined in tight quarters.  As with people in prison, halfway house residents cannot comply with CDC guidance regarding social distancing and good hygiene.

March 26, 2020 in Criminal justice in the Trump Administration, Criminal Sentences Alternatives, Impact of the coronavirus on criminal justice, Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (1)

Tuesday, March 03, 2020

"Going Back to Jail When You Haven’t Committed a Crime: Early Findings From a Multi-State Trial"

The title of this post is the title of this new report from the Institute for Justice Research and Development (IJRD) prepared by Carrie Pettus-Davis and Stephanie Kennedy. This report is part of a series of quarterly reports designed to provide real-time results of a multistate study on prisoner reentry currently being conducted in over 100 correctional facilities and 21 urban and rural counties in 7 states.  The full report itself is a reader-friendly 17 pages, and there is also this one-pager with key takeaways.  Here are excerpts from the one-pager:

Although the general public often thinks about recidivism as individuals leaving incarceration and committing new crimes, technical violations contribute to the strikingly high rates of recidivism reported for individuals released from prisons and jails across the United States....

• Research suggests that 45% of the more than 600,000 annual state prison admissions across the nation are due to probation or parole revocations.

• While probation or parole can be revoked for committing new crimes, 26% of new prison admissions are due solely to technical violations. Unpaid fines and fees also contribute to technical violations and may lead individuals back to incarceration.

• Our goal was to explore the circumstance of re-arrest among our study participants.  At this early point in the study, data are incomplete or unavailable.

• This report examines the reasons for re-arrest provided by study participants as these data were the most complete.  They describe a range of technical violations for expected events — missing check-ins with supervising officers and violating curfew — and unexpected events – being arrested, having one’s charges dropped, and returning to jail for coming into contact with law enforcement. Though not the focus of this report, other common technical violations were related to substance use, carrying guns, and reengagement in crime. We will have more complete data on these rates in the future.

• The 35 individuals highlighted in this report were re-arrested for non-drug related, non-criminal technical violations.

• We ask stakeholders to consider whether current policy and practices are meeting the stated purpose and goals of conditional release.  Are the non-criminal behaviors described in this report reason enough to send someone to jail?  Is it worth the financial costs and associated social costs?

March 3, 2020 in Collateral consequences, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Reentry and community supervision | Permalink | Comments (0)

Thursday, February 20, 2020

"From Decarceration to E-Carceration"

I am sorry to have missed this article by Chaz Arnett with the title used for the title of this post when it was first posted to SSRN some months ago, but I am glad to have seen it as recently revised. Here is its abstract:

Each year, millions of Americans experience criminal justice surveillance through electronic ankle monitors. These devices have fundamentally altered our understanding of incarceration, punishment, and the extent of the carceral state, as they are increasingly offered as moderate penal sanctions and viable solutions to the problem of mass incarceration. They purportedly enable decarceration, albeit with enhanced surveillance in the community as the compromise. Proponents of the devices tout the public safety and cost benefits while stressing the importance of depopulating prisons and returning individuals to their communities. In recent years, an oppositional movement has developed, focused on highlighting the social harms of electronic monitoring as part of a burgeoning e-carceration regime, where digital prisons arise, not as substitutes to brick and mortar buildings, but as net-widening correctional strategy operationalized to work in tandem.

This Paper examines this debate on the effectiveness of electronic ankle monitors using a social marginalization framework. It argues that the current scholarly debate on the use of electronic ankle monitors is limited because it fails to consider the potential harm of social marginalization, particularly for historically subordinated groups subjected to this form of surveillance. It uses system avoidance theory to elucidate the argument that intensive criminal justice surveillance has the counterproductive effect of causing those subjected to surveillance to avoid institutions necessary for adequate reintegration and reduction in recidivism. It offers a theory of the carceral state as malleable, extending beyond prison walls, expanding our carceral reality, and placing great strains on privacy, liberty, and democratic participation. Ultimately, it stresses that a move from decarceration to e-carceration, or from mass incarceration to mass surveillance, will likely fail to resolve, and may exacerbate, one of the greatest harms of mass incarceration: the maintenance of social stratification. Thus, adequately addressing this challenge will demand a more robust and transformative approach to criminal justice reform that shifts a punitive framework to a rehabilitative one focused on proven methods of increasing defendants’ and former offenders’ connections to their community and civic life, such as employment assistance programming, technical and entrepreneurial skill development, supportive housing options, and mental health services.

February 20, 2020 in Criminal Sentences Alternatives, Prisons and prisoners, Race, Class, and Gender, Reentry and community supervision, Scope of Imprisonment, Technocorrections | Permalink | Comments (0)

Tuesday, February 18, 2020

Effective looks at an effective look at the reality of community supervision

The-second-chance-club-9781982128593_lgI have now seen a number of positive review of the new book by Jason Hardy, The Second Chance Club: Hardship and Hope After Prison.  Here is the description of the book from the publisher's website:

A former parole officer shines a bright light on a huge yet hidden part of our justice system through the intertwining stories of seven parolees striving to survive the chaos that awaits them after prison in this illuminating and dramatic book.  Prompted by a dead-end retail job and a vague desire to increase the amount of justice in his hometown, Jason Hardy became a parole officer in New Orleans at the worst possible moment.  Louisiana’s incarceration rates were the highest in the US and his department’s caseload had just been increased to 220 “offenders” per parole officer, whereas the national average is around 100.  Almost immediately, he discovered that the biggest problem with our prison system is what we do — and don’t do — when people get out of prison.

Deprived of social support and jobs, these former convicts are often worse off than when they first entered prison and Hardy dramatizes their dilemmas with empathy and grace. He’s given unique access to their lives and a growing recognition of their struggles and takes on his job with the hope that he can change people’s fates — but he quickly learns otherwise.  The best Hardy and his colleagues can do is watch out for impending disaster and help clean up the mess left behind.  But he finds that some of his charges can muster the miraculous power to save themselves. By following these heroes, he both stokes our hope and fuels our outrage by showing us how most offenders, even those with the best intentions, end up back in prison — or dead — because the system systematically fails them. Our focus should be, he argues, to give offenders the tools they need to re-enter society which is not only humane but also vastly cheaper for taxpayers.

As immersive and dramatic as Evicted and as revelatory as The New Jim Crow, The Second Chance Club shows us how to solve the cruelest problems prisons create for offenders and society at large.

I hope to find time to read this new book, but in the meantime I have already seen these helpful substantive reviews from some notable reviewers:

February 18, 2020 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Monday, February 17, 2020

"Pathways to Reintegration: Criminal Record Reforms in 2019"

The title of this post is the title of this terrific new report from the Collateral Consequences Resource Center authored by Margaret Love and David Schlussel. (I noted in this post a few weeks ago the series of reviews of new laws in place in 2019 on a range of collateral-consequences-related concerns, and I believe this new report brings all of this important material together.)  Here is part of this report's introduction:  

In 2019, 43 states, the District of Columbia, and the federal government enacted an extraordinary 152 laws aimed at reducing barriers faced by people with criminal records in the workplace, at the ballot box, and in many other areas of daily life.  This prolific legislative track record, augmented by one important executive order, reflects a lively national conversation about how best to limit unwarranted record-based discrimination and to promote reintegration.

Last year, we reported what was then an unprecedented number of new record reform laws: 32 states enacted 57 new laws in 2018. In terms of the number of new laws enacted and their importance, 2019 breaks every record set in 2018.  Lawmakers across the country took major actions to restore voting and other civil rights; authorize expungement and other forms of record relief; expand diversion programs to avoid conviction; limit the use of criminal records in occupational licensing, employment, and housing; alleviate immigration consequences; and curb driver’s license penalties unrelated to driving offenses. Approaches to relief varied widely from state to state, with respect to the type of relief, the specifics of who is eligible for it, the mechanics of delivery, and its effect.

This report on 2019 criminal record reforms continues CCRC’s efforts to document an extraordinarily fruitful period of law reform in the United States, one that began around 2013 and has continued to gather steam into 2020.  The overall purpose of this law reform movement has been to advance a public policy of promoting reintegration for people with a criminal record.  In the seven-year period in which CCRC has been following the trend, every state legislature and the federal government has taken at least some steps to chip away at the negative effects of a criminal record on an individual’s ability to earn a living, access housing, education and public benefits, and otherwise fully participate in society.

This introduction highlights key developments from this past year.  A Report Card, new this year, grades the progess of the most (and least) productive state legislatures in 2019. The body of the report provides topical discussions of reform measures, and is followed by an appendix that organizes the laws enacted by jurisdiction.  A link to the text of each law is included, as well as a statutory citation where available.  More detailed information about each state’s laws is available in the CCRC Restoration of Rights Project.

February 17, 2020 in Collateral consequences, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Wednesday, February 12, 2020

"Laying the Groundwork: How States Can Improve Access to Continued Education for People in the Criminal Justice System"

DownloadThe title of this post is the title of this notable new report from the Council of State Governments Justice Center that was released yesterday.  This webpage provides context and overview about the report, and here are excerpts:

New data from a 50-state report ... reveals how state policies fail to support, and often restrict, incarcerated people from accessing continued education, despite research showing that such education can significantly reduce reoffending and increase employment rates.  The report, Laying the Groundwork: How States Can Improve Access to Continued Education for People in the Criminal Justice System, shows that only 10 states allow all people behind bars to access college and employment certification courses, while the rest prohibit certain segments of the incarcerated population from participating....  

Laying the Groundwork also reveals that barriers to education aren’t confined to correctional facilities, but follow people after they’re released: half of all public universities in the U.S. require applicants for admission to disclose their criminal history.  This practice has been shown to discourage potential students from even completing their applications. 

Most states can’t attribute these challenges to a lack of resources. Only three states use all of the federal funding available specifically to support postsecondary education for people in prison; the rest leave taxpayer money on the table.  And two-thirds of states restrict state-based financial aid for currently and formerly incarcerated students, adding another barrier to continued education.

Laying the Groundwork is based on data collected through original surveys of all 50 state correctional agency education directors and parole-granting agencies, as well as extensive online research on state statutes, regulations, and administrative policies, and university application processes....  

The report outlines four essential building blocks states must have in place to make postsecondary education accessible to people impacted by the criminal justice system: making use of available funding, offering a variety of programming aligned with local employer needs, eliminating restrictions on participation, and providing incentives and supports to encourage participation and completion.  Currently, no state has all four of these basic elements in place. And less than half of states meet the criteria for each one of the building blocks, demonstrating that while states may recognize the importance of continued education, they can do much more to ensure that currently and formerly incarcerated people can access it.

To help states make continued education more effective and attainable, Laying the Groundwork includes checklists of best practices that can inform efforts to improve state statute, administrative policy, and funding practices. States can use these checklists to ensure that they are doing all they can to make their communities safer by providing people in correctional facilities and who have a criminal record the opportunity to continue their education.

The report was developed by The Council of State Governments Justice Center and funded by Lumina Foundation.  Read the full report and find every state’s factsheet here.

February 12, 2020 in Collateral consequences, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (0)

Wednesday, February 05, 2020

"Lost in Translation: 'Risks,' 'Needs,' and 'Evidence' in Implementing the First Step Act"

The title of this post is the title of this notable new paper now available via SSRN authored by Jennifer Skeem and John Monahan.  Here is its abstract:

In this article, we focus on two highly problematic issues in the manner in which the First Step Act of 2018 is being implemented by the Bureau of Prisons: (1) an uncritical separation of “dynamic risks” and “criminogenic needs” and (2) a spurious reliance on “evidence-based” interventions to reduce recidivism risk.  We argue that if the Act is to live up to its promise of being a game-changing development in efforts to reduce crime while simultaneously shrinking mass incarceration, “needs assessment” must be subject to vastly increased empirical attention, variable and causal risk factors must be identified and validly assessed, and interventions to reduce risk must be rigorously evaluated both for their fidelity of implementation and impact on recidivism.  Rather than further proliferating programs that ostensibly reduce risk, we believe that serious consideration should be given to the Bureau of Prisons offering one signature, well-established cognitive-behavioral program that can simultaneously address multiple risk factors for moderate and high-risk prisoners.

February 5, 2020 in FIRST STEP Act and its implementation, Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (0)

Wednesday, January 29, 2020

"The Criminal Class and the Right to Be Subjected to Unreasonable Searches and Seizures"

The title of this post is the title of this new paper now available on SSRN authored by Matthew Greife and Ryan Hull. Here is its abstract:

People that are on parole have been lumped into what is called the criminal class by the courts.  Being in the criminal class has many consequences.  One such consequence is the loss of individual Fourth Amendment rights to be free from unreasonable searches and seizures.  While on parole an individual and their property can be searched with only reasonable suspicion rather than probable cause.  The justification for a lower standard is that those in the criminal class pose a greater threat to the community and are in need of greater control because of their propensity to commit crimes at higher rates than the average citizen.  However, these beliefs may be founded on misinterpretations of data and inaccurate cultural beliefs.  In this article we investigate the “social threat” presumption courts relied upon to lessen parolees Fourth Amendment protections.  Specifically, we interview parolees in Colorado to understand why they violate their parole terms and are re-incarcerated.  Generally, we find that the presumptions about parolees posing a greater threat to society than the average citizen is unsupportable and therefore unconstitutional.

January 29, 2020 in Collateral consequences, Reentry and community supervision | Permalink | Comments (0)

Monday, January 20, 2020

"'Ban the Box' Policies and Criminal Recidivism"

The title of this post is the title of this new empirical paper authored by Ryan Sherrard available via SSRN. Here is its abstract:

Employment has long been seen as a mechanism for reducing criminal recidivism. As such, many states and municipalities have tried to increase the employment prospects of ex-offenders through "Ban the Box" (BTB) policies, making it illegal to ask about an individual's criminal history on a job application.  There are, however, questions as to how effective these policies are at helping ex-offenders successfully stay out of prison.  In addition, recent research has shown that BTB policies may lead employers to racially discriminate in hiring.  Using administrative prison data, this paper examines the direct effect of BTB policies on rates of criminal recidivism.  I find that while BTB policies don't appear to reduce criminal recidivism overall, these policies may be exacerbating racial disparities.  In particular, I show that being released into a labor market with a BTB policy is associated with higher rates of recidivism for black ex-offenders, with little to no effect for white ex-offenders.  This result is robust to a number of specifications and sub-samples.

January 20, 2020 in Collateral consequences, Data on sentencing, Race, Class, and Gender, Reentry and community supervision | Permalink | Comments (2)