Tuesday, February 12, 2019

"The case for capping all prison sentences at 20 years"

The title of this post is the title of this very lengthy new piece by German Lopez at Vox.  I recommend the piece in full, and here are excerpts from the first part of the article:

America puts more people in jail and prison than any other country in the world.  Although the country has managed to slightly reduce its prison population in recent years, mass incarceration remains a fact of the US criminal justice system.

It’s time for a radical idea that could really begin to reverse mass incarceration: capping all prison sentences at no more than 20 years.  It may sound like an extreme, even dangerous, proposal, but there’s good reason to believe it would help reduce the prison population without making America any less safe....

Looking at the length of our prison sentences is one approach to reverse mass incarceration.  Empirical research has consistently found that locking up people for very long periods of time does little to nothing to combat crime, and may actually lead to more crime as people spend more time in prison — missing big life opportunities for legitimate careers, and being incarcerated with others who have ties to the criminal world.

There’s also good reason to believe that 20 years is a good cutoff for a maximum.  Studies have found that people almost always age out of crime, particularly by their late 30s and 40s.  If a person is locked up for a robbery or murder at 21, there’s a very good chance that he won’t commit that same crime when he gets out at 41.

Other countries show this can work. European nations tend to have shorter prison sentences than the US, and certainly fewer people in prison, along with roughly equal or lower violent crime rates.  Norway in particular caps the great majority of prison sentences at 21 years — and its violent crime and reoffending rates are lower than the US’s.  (The cap does have some exceptions, as I’ll explain later.)

A cap on prison sentences wouldn’t on its own end mass incarceration.  But at least tens of thousands of people in prison would benefit now — if the change were applied retroactively — and untold numbers more would benefit in the future if it were adopted by states and the federal government.

I’m not naive; I know there’s a very, very low chance that this policy will actually be enacted. And I know there are some difficult questions we need to confront if such a policy were ever put in place.  But I think pushing for something like this is a good idea anyway.  It forces a conversation about what prisons are for: Are they for keeping the public safe? Rehabilitating inmates?  Purely for revenge?  If our answer as a society is the first two, but not the latter, then a cap is something we should consider.

By beginning these kinds of conversations, we can try to get at the root cultural and social forces that enabled and encouraged mass incarceration to begin with.  Only by doing that can we start to really unravel a criminal justice system that’s turned into one of the world’s most punitive.

February 12, 2019 in Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (3)

Monday, February 11, 2019

Making sure we do not lose sight of the "American epidemic of overly long prison sentences"

Late last week, Judge Morris Hoffman penned this notable Wall Street Journal essay headlined "A Judge on the Injustice of America’s Extreme Prison Sentences: The duty to punish criminals comes with an obligation not to punish them more than they deserve." I recommend the piece in full, and here are excerpts:

Many people have celebrated Congress’s recent passage of the First Step Act, which, among other things, retroactively reduced penalties for some federal drug offenses.  But it did very little to address the American epidemic of overly long prison sentences.  Today, we lead the Western world in average length of prison sentences, at 63 months. According to the Justice Policy Institute, Canada’s average is four months, Finland’s 10, Germany’s 12 and even rugged, individualistic Australia’s is just 36.

These numbers are even more striking considering that the modern prison is an American invention and the average sentence started out at a few months, not years.  The Quakers invented prisons in the late 1700s as a more humane alternative to death or banishment, then the punishments for virtually all serious crimes.  But the penitentiary wasn’t intended to be a criminal warehouse.  Criminals were expected to work, pray and think about their crimes — to be penitent about them — in a kind of moral rehabilitation.

Virtually every new American state that adopted this form of punishment soon passed laws requiring confinement to include hard labor, but for short durations.  A 1785 New York statute was typical: It limited all nonhomicide prison sentences to six months.  Alexis de Tocqueville, whose visits to America began with a tour of U.S. prisons in 1831, wrote, “In no country is criminal justice administered with more mildness than in the United States.”  But over the next 150 years, America went from mildest punisher to harshest.  The reasons for this shift are complicated, but they include a dash of progressive naiveté, a bit of blind faith in the power of deterrence and large dollops of political neglect.....

[T]the relationship between longer sentences and falling crime rates is complex and nonlinear.  At some point, crime rates become unresponsive to increased punishment. If we sentenced aggravated robbers to 70 years, then increased that to 80, not even the most committed believer in deterrence would expect those additional 10 years to further reduce robberies.  The enormous leverage of prosecutors in plea bargaining is undoubtedly a factor in the explosion of sentence lengths.  But the real problem is the sentence ranges created by legislatures, not the particular sentences within those ranges imposed by judges or driven by plea bargains.

Don’t get me wrong. I’m not one of those apologists who thinks that criminal law is fundamentally immoral or that a bad environment excuses bad actions. I am what we in the business call a “retributivist.” I don’t punish people primarily to cure them or to deter others. I punish them mainly because those who intentionally harm others deserve to be punished, in no small part to earn their way back into the social fold.

But if retribution offers a moral justification for punishment, it also imposes limits. W e have a duty to punish wrongdoers, but that duty comes with the obligation not to punish criminals more than they deserve. Much of our criminal-justice system has lost that moral grounding, and our use of prisons has become extreme.  We dishonor victims of crimes that merit severe punishment when we sentence less serious crimes just as harshly.  What do I tell the surviving relatives of a victim of second-degree murder when they see her killer sentenced to less time than someone who robbed a crowded restaurant?...

It won’t be easy. No one gets elected by calling for shorter prison sentences.  Critics will warn that releasing prisoners earlier is unsafe, and in some cases it would be.  But as a policy matter, there is simply no evidence that, say, a 70-year sentence for aggravated robbery does more than a 30-year one to deter other potential robbers.  Moreover, violent crime rates decrease rapidly as criminals age out of their 20s.  Releasing a middle-aged prisoner earlier does pose more risk, of course, than keeping him behind bars, but that marginal danger will be very small indeed when we are comparing 30- and 70-year sentences....

As state and federal legislators ponder their next moves after the First Step Act, they should consider lowering historically extreme sentences for some offenses, including violent ones.  It would not only be sensible public policy but would also help return our criminal law to its moral roots.

February 11, 2019 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (2)

Thursday, February 07, 2019

Updated versions of great reads from the "Square One Project" on criminal justice policy and reform

In this post from last fall, I noted the new Square One Project working to "reimagine justice" and conducting executive sessions and roundtables on the future of justice policy. In that post, I noted some early draft of interesting papers from the project, and yesterday I got an email pointing me to this page with links to these now finalized papers:

Bruce Western, The Challenge of Criminal Justice Reform

After three decades of growth in the U.S. incarceration rate, we have entered a period of criminal justice reform.  However, efforts to reverse mass incarceration need to address the social conditions of poverty, racial inequality, and violence in which punitive criminal justice policy has expanded.  Efforts that aim only to reduce prison populations, or neglect the harsh socioeconomic conditions in poor communities of color, will fail to sustainably reduce the burdens of over-imprisonment.  A new, socially-integrative, vision of community health and economic flourishing is the best way to respond to the problem of violence in contexts of poverty and racial injustice.

Arthur Rizer, A Call for New Criminal Justice Values

The U.S. criminal justice system expresses our nation’s values, for better or worse.  For most of the early and middle 20th century, rehabilitation guided criminal justice policies, but in the 1970s and 1980s, notions of retribution, deterrence, and incapacitation emerged as replacements and signaled a dramatic shift in criminal justice policy.  Now, as we enter an era of criminal justice reform, it is time for a new set of values.  Parsimony in criminal punishment, which seeks the least coercive response, can undo the damage of overreaching incarceration.  Parsimony in punishment serves the more fundamental values of liberty and limited government, which embody a distinctively American commitment to human freedom.  While our history has clearly disappointed the values of parsimony, liberty, and limited government, the oncoming era of criminal justice reform opens the door to new and exciting possibilities.

February 7, 2019 in Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (0)

Wednesday, January 30, 2019

Contextualizing passage of the FIRST STEP Act and its likely echoes

Sociology Prof Michelle Phelps has this notable new Conversation commentary headlined "Congress’s First Step Act reflects a new criminal justice consensus, but will it reduce mass incarceration?". The piece explains why the author thinks "no" is the sensible answer to the question headlining her commentary.  Here are excerpts (with some links from the original preserved):

I have found in my research that criminal justice policies and practices in the United States have often followed complex trajectories. Reforms often receive support from unlikely coalitions.  But, by focusing on these strange bedfellows, commentators and advocates sometimes paper over the deeper disagreements in ideas about who, how and how much to punish.  Fights over these differences ultimately shape how policies get put into practice — and whether the bill ultimately achieves its intended outcomes.  While the First Step Act’s passage may look like a clear victory for more moderate punishment, its implementation and impact under the Trump administration is likely to be quite limited.

Criminal justice is often described by academics and journalists as a pendulum that swings wildly between harsh punishment focused on retribution, and more lenient treatment focused on redemption or reformation.  In this metaphor, some people saw Trump’s election as a swing of the pendulum away from progressive punishment and back toward punitive policies.

In our book Breaking the Pendulum, my colleagues Joshua Page and Philip Goodman and I argue that a better metaphor is the constant, low-level grinding of tectonic plates that continually produce friction and occasionally erupt in earthquakes. This friction manifests in traditional political combat, mass demonstrations, prison rebellions, and academic and policy work.  Periodically, major changes in conditions like crime rates and the economy change to provide support and opportunities to one side or another.  These changes often bring together unlikely allies.

People typically associate the “law and order” approach to criminal justice with Republicans.  However, new research shows how liberals laid the ground for these policies. It was the Democratic administration of President Lyndon Johnson during the 1960s that first launched the “war on crime” by expanding federal funding to build up the capacity of local law enforcement agencies. In the following decades, the crime rate spiked, due in part to better reporting by police departments, and crime became a hot political issue.

By the 1990s, Republicans and Democrats had all but converged on attitudes toward law enforcement. Not wanting to lose to Republicans by being portrayed as “soft on crime,” Democrats took increasingly “tough” criminal justice stances. President Bill Clinton’s wildly popular 1994 Violent Crime Control and Law Enforcement Act was the apex of this bipartisan enthusiasm for aggressive policing, prosecution and punishment.  The bill made federal sentencing guidelines more severe, increasing both life sentences and the death penalty, and built up funding streams to increase local police forces and state prison capacity.

Despite the rhetoric of the crime bill, the best evidence suggests that it played little role in the explosion of the national prison population — or what scholars term “mass imprisonment.”  This is because policies focused on harsh punishment had already peaked by 1994.  In addition, it only applied to the federal system, which represents only 10 percent of all people locked up.  Finally, even though there was wide support for the crime bill, activists, politicians, judges and others continued to fight against “tough” punishment, eventually building the momentum for the First Step Act.

What does this history tell us about the First Step Act?

First, it’s not surprising that Republicans and Democrats, conservatives and liberals came together on the bill. Both camps have moved away from the “tough on crime” mantra.  Democrats now talk of “smart on crime” policies while some Republicans support the “right on crime” initiative.  Both agree that aggressive policing and heavy criminal penalties for low-level offenses, particularly drug crimes, do more harm than good.

The rise of a new approach to criminal justice can be tied to a number of changes since the 1990s, including historically low crime rates, strained state and federal budgets and a growing awareness of the negative consequences of mass incarceration.  Critically, a cadre of conservative leaders spent the past two decades working to change Republican orthodoxy on this issue.  They frame mass incarceration as a fiscal and moral failure that wastes tax dollars and violates the Christian principles of “second chances” and redemption....

However, bipartisan consensus is not as seamless as it is sometimes portrayed.  A group of Republican leaders remain aggressively opposed to these criminal justice reforms.  And at the last hour, they nearly killed the First Step Act....

During his confirmation hearing last week, [Attorney General nominee William] Barr promised to “diligently implement” the First Step Act, but then backtracked to support Session’s policies at the Justice Department, adding, “we must keep up the pressure on chronic, violent criminals.”

Like the ‘94 bill before it, this indicates that the First Step Act will likely be more bark than bite.  The First Step Act might provide relief to several thousand current federal prisoners.  But Barr will likely follow Sessions and direct his prosecutors to seek the maximum criminal penalties against current defendants, including for drug offenses, limiting the impact of the First Step Act’s sentencing reform.  And the bill will have no practical effect on state prison systems, which in some cases have already embraced much more radical reforms.

While the First Step Act is a move in the direction of more humane and moderate criminal justice practices, I think it will likely be a very small first step indeed.

January 30, 2019 in Elections and sentencing issues in political debates, FIRST STEP Act and its implementation, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Friday, January 25, 2019

Timely questions on enduringly important topics via The Crime Report

I have praised and promoted work done over at The Crime Report for many years, and the site remains a daily must-read for criminal justice fans.  And in the last few days, TCR has had two new pieces headlined with two questions that are timely and enduring.  Here are the headlines, links and brief excerpts:

"Can the U.S. Abolish Life Sentences?" (Q&A with Ashley Nellis)

TCR: You write, “Perhaps the most glaring omission of relevant data was the failure of the Bureau of Justice Statistics (BJS), the well-regarded research arm of the Department of Justice, to document the scale of life imprisonment.” Do you think this omission was on purpose or by accident?  And why?

Nellis: I think it’s not on purpose, there just a lack of resources in the research arms.  There’s also a lack of general interest from the public, so there was no incentive to document the expansion of life sentences. We shouldn’t be surprised that there hasn’t been data on the expansion because it goes along with laws and policies of the 1990s.

[The BJS] is not a political entity, but it seems to be. If you pass legislation at federal level that is bound to increase your incarcerated population… you should probably document the impact of those policies.  If you pass mandatory minimums with the elimination of parole, it seems wise to document how many people go to prison because you did that. Once a lot of the public sees the dramatic growth of life sentences— nearly five-fold increase over time — then they ask “why did nobody notice this before?” The answer is because nobody was recording it.

"Do We Really Need Probation and Parole?" (commentary by Vincent Schiraldi): 

Although “mass supervision” on probation or parole has not yet garnered the attention of “mass incarceration,” its impact is no small matter.  There are 4.5 million people under community supervision in America, twice as many as are incarcerated, a figure that amounts to more than the population in half of all U.S. states.  About four in ten people entering America’s prisons and jails each year are under supervision.  Many of those are incarcerated, not for committing new crimes, but for breaking a wide array of supervision rules.

January 25, 2019 in Criminal Sentences Alternatives, Data on sentencing, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (1)

Wednesday, January 23, 2019

"Mass Incarceration Paradigm Shift?: Convergence in an Age of Divergence"

The title of this post is the title of this notable new article just posted to SSRN and authored by Mugambi Jouet. Here is its abstract:

The peculiar harshness of modern American justice has led to a vigorous scholarly debate about the roots of mass incarceration and its divergence from humanitarian sentencing norms prevalent in other Western democracies.  Even though the United States reached virtually world-record imprisonment levels between 1983 and 2010, the Supreme Court never found a prison term “cruel and unusual punishment” under the Eighth Amendment.  By countenancing extreme punishments with no equivalent elsewhere in the West, such as life sentences for petty recidivists, the Justices’ reasoning came to exemplify the exceptional nature of American justice.  Many scholars concluded that punitiveness had become its defining norm.

Yet a quiet revolution in Eighth Amendment jurisprudence, a wave of reforms, and other social developments suggest that American penal philosophy may be inching toward norms — dignity, proportionality, legitimacy, and rehabilitation — that have checked draconian prison terms in Europe, Canada, and beyond.  In 2010, the Supreme Court began limiting the scope of life imprisonment without parole for juveniles in a series of landmark Eighth Amendment cases.  Partly drawing upon the principles in these decisions, twenty-one states have abolished life without parole categorically for juveniles, providing them more protections than under the Eighth Amendment.  The narrow focus on the differences between juveniles and adults in the aftermath of these reforms obscured American law’s increasing recognition of humanitarian norms that are hardly age-dependent — and strikingly similar to those in other Western democracies.  Historiography sheds light on why the academy has largely overlooked this relative paradigm shift.  As America faced mass incarceration of an extraordinary magnitude, research in recent decades has focused on divergence, not convergence.

This Article advances a comparative theory of punishment to analyze these developments.  In the United States and throughout the West, approaches toward punishment are impermanent social constructs, as they historically tend to fluctuate between punitive and humanitarian concerns.  Such paradigm shifts can lead to periods of international divergence or convergence in penal philosophy.  Notwithstanding the ebb and flow of penal attitudes, certain long-term trends have emerged in Western societies.  They encompass a narrowing scope of offenders eligible for the harshest sentences, a reduction in the application of these sentences, and intensifying social divides about their morality. Restrictions on lifelong imprisonment for juveniles and growing social polarization over mass incarceration in the United States may reflect this movement.  However, American justice appears particularly susceptible to unpredictable swings and backlashes.  While this state of impermanence suggests that the reform movement might reverse itself, it also demonstrates that American justice may keep converging toward humanitarian sentencing norms, which were influential in the United States before the mass incarceration era.

Two patterns regarding the broader evolution of criminal punishment ultimately stand out: cyclicality and steadiness of direction.  The patterns evoke a seismograph that regularly swings up or down despite moving steadily in a given direction.  American justice may cyclically oscillate between repressive or humanitarian aspirations; and simultaneously converge with other Western democracies in gradually limiting or abolishing the harshest punishments over the long term.

January 23, 2019 in Assessing Miller and its aftermath, Scope of Imprisonment, Sentencing around the world, Who Sentences | Permalink | Comments (0)

Saturday, January 19, 2019

"Positive Sanctions versus Imprisonment"

The title of this post is the title of this notable new article authored by Murat Mungan.  Here is its abstract:

This article considers the possibility of simultaneously reducing crime, prison sentences, and the tax burden of financing the criminal justice system by introducing positive sanctions, which are benefits conferred to individuals who refrain from committing crime.  Specifically, it proposes a procedure wherein a part of the imprisonment budget is re-directed towards financing positive sanctions. 

The feasibility of reducing crime, sentences, and taxes through such reallocations depends on how effectively the marginal imprisonment sentence reduces crime, the crime rate, the effectiveness of positive sanctions, and how accurately the government can direct positive sanctions towards individuals who are most responsive to such policies.  The article then highlights an advantage of positive sanctions over imprisonment in deterring criminal behavior: positive sanctions operate by transferring or creating wealth, whereas imprisonment operates by destroying wealth.  Thus, the conditions under which positive sanctions are optimal are broader than those under which they can be used to jointly reduce crime, sentences, and taxes.

The analysis reveals that when the budget for the criminal justice system is exogenously given, it is optimal to use positive sanctions when the imprisonment elasticity of deterrence is small, which is a condition that is consistent with the empirical literature.  When the budget for the criminal justice system is endogenously determined, it is optimal to use positive sanctions as long as the marginal cost of public funds is not high.

January 19, 2019 in Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (0)

Wednesday, January 16, 2019

"Mens Rea Reform and Its Discontents"

The title of this post is the title of this great-looking new article authored by Benjamin Levin now available via SSRN. Here is its abstract:

This Article examines the debates over recent proposals for “mens rea reform.”  The substantive criminal law has expanded dramatically, and legislators have criminalized a great deal of common conduct.  Often, new criminal laws do not require that defendants know they are acting unlawfully.  Mens rea reform proposals seek to address the problems of overcriminalization and unintentional offending by increasing the burden on prosecutors to prove a defendant’s culpable mental state.  These proposals have been a staple of conservative-backed bills on criminal justice reform. Many on the left remain skeptical of mens rea reform and view it as a deregulatory vehicle purely designed to protect defendants accused of financial or environmental crimes.

Rather than advocating for or against such proposals, this Article argues that opposition to mens rea reform should trouble scholars and activists who are broadly committed to criminal justice reform.  Specifically, I argue that the opposition demonstrates three particular pathologies of the U.S. criminal system and U.S. criminal justice reform: (1) an overreliance on criminal law as a vehicle for addressing social problems; (2) the instinct to equalize or level up — when faced with inequality, many commentators frequently argue that the privileged defendant should be treated as poorly as the disadvantaged defendant, rather than using the privileged defendant’s treatment as a model; and (3) the temptation for mass incarceration critics to make exceptions and support harsh treatment for particularly unsympathetic defendants.  Ultimately, this Article argues that achieving sweeping and transformative criminal justice reform will require overcoming the three pathologies.

January 16, 2019 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (0)

"Top Trends in State Criminal Justice Reform, 2018"

The title of this post is the title of this two-page briefing paper authored by Nicole Porter for The Sentencing Project which highlights significant criminal justice policy changes at the state level in 2018. Here is how the document gets started:

The United States is a world leader in incarceration rates and keeps nearly 7 million persons under criminal justice supervision. More than 2.2 million are in prison or jail, while 4.6 million are monitored in the community on probation or parole. Changes in sentencing law and policy, not changes in crime rates, have produced the nation’s high rate of incarceration. Scaling back incarceration will require changing policy and practice to reduce prison populations, intentionally address racial disparity, and eliminate barriers to reentry. In recent years a number of states have enacted reforms designed to reduce the scale of incarceration and impact of the collateral consequences of a felony conviction. This briefing paper describes key reforms undertaken in 2018.

Notably, this short document makes no mention of state level marijuana reforms, even though many are motivated, at least in part, by interest in addressing racial disparities and eliminating barriers to reentry. This reinforces my long-standing view that there is a tangible disconnect between criminal justice reform movements and marijuana reform movements.

January 16, 2019 in Race, Class, and Gender, Reentry and community supervision, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Monday, January 07, 2019

Calling her life sentence "too harsh," Tennessee Gov grants commutation to Cyntoia Brown to be paroled after serving 15 years for juve killing

As reported in this local article, "Gov. Bill Haslam ordered an early release for Cyntoia Brown, a Tennessee woman and alleged sex trafficking victim serving a life sentence in prison for killing a man when she was 16."  Here is more about a high-profile clemency grant in a high-profile case:

Haslam granted Brown a full commutation to parole on Monday. Brown will be eligible for release Aug. 7, 15 years after she fatally shot a man in the back of the head while he was lying in bed beside her. She will stay on parole for 10 years.

“Cyntoia Brown committed, by her own admission, a horrific crime at the age of 16," Haslam said in a statement. "Yet, imposing a life sentence on a juvenile that would require her to serve at least 51 years before even being eligible for parole consideration is too harsh, especially in light of the extraordinary steps Ms. Brown has taken to rebuild her life. "Transformation should be accompanied by hope. So, I am commuting Ms. Brown’s sentence, subject to certain conditions.”

Brown will be required to participate in regular counseling sessions and to perform at least 50 hours of community service, including working with at-risk youth. She also will be required to get a job.

In a statement released by her lawyers, Brown thanked Haslam "for your act of mercy in giving me a second chance. I will do everything I can to justify your faith in me." "With God's help, I am committed to live the rest of my life helping others, especially young people. My hope is to help other young girls avoid ending up where I have been."

The governor's long-awaited decision, handed down during his last days in office, brought a dramatic conclusion to Brown's plea for mercy, which burst onto the national stage as celebrities and criminal justice reform advocates discovered her case. In his commutation, the governor called Brown's case one that "appears to me to be a proper one for the exercise of executive clemency." "Over her more than fourteen years of incarceration, Ms. Brown has demonstrated extraordinary growth and rehabilitation," the commutation said.

It was a remarkable victory for Brown after years of legal setbacks. Brown said she was forced into prostitution and was scared for her life when she shot 43-year-old Johnny Allen in the back of the head while they were in bed together. Allen, a local real estate agent, had picked her up at an East Nashville Sonic restaurant and taken her to his home.

Brown, now 30, was tried as an adult and convicted of first-degree murder in 2006. She was given a life sentence. Had Haslam declined to intervene, Brown would not have been eligible for parole until she was 69. The state parole board, which considered Brown's case in 2018, gave the governor a split recommendation, with some recommending early release and some recommending she stay in prison....

In recent years, celebrities have highlighted her case, fueling intense interest and a renewed legal fight to get her out of prison. Activists, lawmakers and celebrities, including Rihanna and Kim Kardashian West, have cited Brown's case as an illustration of a broken justice system. Brown was a victim herself, they said, and didn't deserve her punishment.

The Gov's official press release on this decision is available at this link.

January 7, 2019 in Assessing Miller and its aftermath, Clemency and Pardons, Offender Characteristics, Offense Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (8)

Thursday, January 03, 2019

"The Metal Eye: Ethical Regulation of the State’s Use of Surveillance Technology and Artificial Intelligence to Observe Humans in Confinement"

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

This article addresses the dual interests of privacy and the need for social interaction as a right of personal autonomy in choosing the balance between them.  This is a right in need of protection in the face of new technology, including artificial intelligence, which has enabled constant state surveillance of individuals.  Those most at risk of a deprivation of this right -- persons in state institutional confinement, including those in prisons, nursing homes, or involuntarily committed in mental institutions -- provide an important context for examining this potential infringement, because there is a particularly strong concurrent state interest to surveil to maintain order and security.

The historical development of common law and federal constitutional protections of the rights of persons in confinement is examined next to the emergence of state constitutional amendments guaranteeing a right of privacy.  In addition, mental health research has added to the policy development in this area, as seen in research regarding the impact of solitary confinement.

January 3, 2019 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Sunday, December 30, 2018

Highlighting continued work (and optimism) on alternatives to incarceration

I have had the great honor and pleasure for many years now of working with folks at the Aleph Institute, a national nonprofit that works on various criminal justice reform and recidivism reduction efforts. Hanna Liebman Dershowitz, who is director of special projects for the alternative sentencing division of the Aleph Institute, has this new New York Law Journal piece headlined "Our Country Grapples With Deepest Challenges Around Sentencing," discussing work on alternatives to incarceration and an event on the topic in the works for summer 2019.  Here is an excerpt:

The nonprofit I work with, the Aleph Institute, harbors a vision we call “Rewriting the Sentence,” wherein the cultural and political shift that has already taken hold in this country produces a complete reordering of our punishment priorities.  Once this shift is complete, we would view incarceration and other separation from community only as an option among many to be used sparingly, only when needed.

At present, we are such an outlying world incarcerator that we rank with the most heartless regimes on the planet.  It always bears repeating that we are not 5% of the world population and yet are responsible for almost a quarter of the world’s imprisoned population.  Across history, incarceration has not always dominated the punishment landscape — indeed, in Biblical law there is no such punishment as incarceration because of the inhumane collateral damage it wreaks.

We at Aleph think there are often legal and humanitarian reasons for the avoidance of custodial methods of correction at every stage of our system — from bail reform and law enforcement assisted diversion upfront to diversion programs, specialty courts and sentencing advocacy at the disposition stage to clemency, reentry support and compassionate release toward the back.

A system that uses evidence-based tools at each stage can deliver the optimal levels of supervision and services to allow each person to thrive and stay out of trouble.  Ideally — and I truly get that all of this sounds idealistic — we can use freed-up incarceration resources to support healthy communities, understanding that equity and thriving neighborhoods are the best prevention tools for crime.

What Aleph has learned from delivering care and support to thousands of individuals and families in prisons and jails all over the country for decades is that helping people function better is superior to an outmoded and misguided approach that inexorably leads to negative results, especially for the children left behind.

Here’s why I am not idealistic, but actually a pragmatist. If we don’t envision how we want the system to work, we will continue to incarcerate people none of us ever intended to incarcerate and to not know who we are incarcerating in a meaningful way.....

Why do I think I will see a true culture change in my lifetime on alternatives to incarceration too? Because we are already seeing the seeds of the change, to wit: in a recent meeting with the chief of alternatives for a major metropolitan district attorney, I was told that in recent years incoming prosecutors ask whether there are alternatives they can offer to defendants. In a decade, perhaps they will expect them.

So policy wonks and idealists alike, please stay tuned as we seek to rewrite a legacy of sentencing myopia. Aleph is convening criminal justice stakeholders next June at Columbia Law School for the Rewriting the Sentence 2019 Summit, and we will announce significant new initiatives thereafter. For more information, please visit askssummit.com.

December 30, 2018 in Criminal Sentences Alternatives, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (0)

Monday, December 24, 2018

Lamenting lack of retroactive application of new sentencing changes in FIRST STEP Act (... and so rooting again for robust clemency)

This recent piece from The Guardian, fully headlined "Current inmates feel left behind by Trump's criminal justice reform bill; First Step Act reduces the mandatory sentence for three-strikes offenders but the provisions will not be made retroactive," spotlights how certain inmates have gotten left behind even as the inappropriateness of their sentences inspired key sentencing reforms in the FIRST STEP Act.  Here are excerpts:

On paper, Chris Young seems exactly the kind of person a prison reform bill ought to release from federal custody. In the eight years since he was last free, Young has become an avid reader, taught himself to write computer code and worked as a tutor for fellow prisoners. Right now he’s reading Yuval Noah Harari’s Homo Deus “for fun”.  He also says that since he can’t get real-world practice, he re-reads the same passage of a programming book every day after lunch, to make sure it’s committed to memory.

When he was 22, Young was arrested on a third low-level drug charge. Under so-called “three strikes” laws, he was given a mandatory life sentence.  For decades, in cases involving repeat drug offenders, such laws have stripped federal judges of discretion. The judge who sentenced Young, Kevin Sharp, was so shaken by the experience he retired shortly after.  “What I was required to do that day was cruel,” Sharp tweeted earlier this year.

The bipartisan First Step Act, signed into law by Donald Trump on Friday, softens that “cruel” requirement for federal judges, reducing the mandatory sentence in such cases to 25 years. But it will not do anything for Young.  In one of many compromises made by progressive reform advocates to secure conservative support, this and several other provisions were not made retroactive.  “I’m human and I would have loved to have benefited from the bill, but unfortunately I don’t,” Young told the Guardian from federal prison in Lexington, Kentucky. “I don’t necessarily feel left behind, I just feel [lawmakers] don’t understand what goes on with the … actual humans that their choices and politics affect.”...

Advocates believe [the Act] can be a launching point for state and local reform which could have a much greater impact on the US inmate population. After all, just 10% of people incarcerated in the US are in the federal system.  “I absolutely think that this one is going to be catalytic towards other de-carceration campaigns on the local and state level,” said Glenn Martin, a formerly incarcerated reform advocate who helped bring dozens of former inmate-led groups on board for the First Step Act.

“I think that the Senate — a conservative Republican Senate — has just given permission to conservatives all over the country [to become] engaged in criminal justice reform.” Nonetheless, the lack of retroactivity on a majority of the sentencing reforms was “a tough pill to swallow”.

“It’s one of the concessions that hurts the most,” said Martin. “It’s about fairness, and yet there’s this group of people who continue to be harmed because of the lack of retroactivity.”

That includes people like John Bailey, a 71-year-old inmate of the federal prison in Hazleton, West Virginia which is nicknamed “misery mountain”. Bailey’s brother Oliver said he was struggling to understand the logic of the changes not applying to inmates like John, who was imprisoned in 1992 on a non-violent drug charge. “If you recognize the injustice now,” asked Bailey, “how come it doesn’t apply to those that suffered the same injustice before?”

Advocates who worked on the bill said conservatives and politically vulnerable Democrats opposed retroactivity because of how releasing prisoners early might resonate with voters.

There is one bright spot for the Baileys. One provision of First Step that does apply to current inmates is a requirement that prisoners be housed no more than 500 driving miles from their home. Bailey, who is from St Petersburg, Florida, has spent his prison life in Leavenworth, Kansas and now West Virginia, thousands of miles away. Oliver has not seen John since he was jailed. “At this point something’s better than nothing,” he said. “We need to progress from here.”

It’s a common sentiment. Chad Marks is serving a 40-year sentence on drug conspiracy charges, thanks to another provision First Step will restrict. Marks’ sentence was enhanced by “stacking” language in federal law which dramatically increases a sentence if an offender possesses a firearm in the commission of a drug crime, whether or not it is used. “I don’t understand how lawmakers can say that doing this is wrong,” he said, “and that they are going to fix it, but not apply it retroactively. That was a big blow. What has my focus and attention right now is the fact that lawmakers did something, but my focus is also on a second step coming.”...

Young, Bailey and Marks continue to wait for a second step. While they do, all three must place their primary hope for release in an act of clemency: a pardon or commutation issued by the president. Young’s case has been endorsed by Kim Kardashian, who successfully lobbied for the release of another federal prisoner, Alice Johnson, in June. Marks said he was “more than hopeful that I will find relief through clemency”.

“I am praying that president Trump will find me worthy of mercy and grace,” he said. “I won’t let him down or disappoint him.”

As regular readers know, Prez Trump has been letting me down and disappointing me by having so far failed to make good on all the talk from earlier this year that he was looking at "3,000 names" for possible clemencies. I sincerely hope that Prez Trump and those assisting him on clemency matters are going to give extra attention to persons serving extreme sentences that would no longer be applicable under the new sentencing provisions of the FIRST STEP Act.  (I also think persons serving particularly extreme sentences should file (or seek to re-file) constitutional or other challenges to their sentences that might be emboldened by FIRST STEP Act reforms, but I will discuss this idea in a subsequent post.)

A few of many recent related posts: 

December 24, 2018 in FIRST STEP Act and its implementation, Mandatory minimum sentencing statutes, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Thursday, December 20, 2018

"California transformed its justice system. But now crime is up, and critics want rollbacks"

La-1545291924-l4bgfb9fvx-snap-imageThe title of this post is the headline of this notable new Los Angeles Times article that merits a read in full. Here is the first part of the piece:

Over the last decade, California has led the nation in reducing its prison population. The state has shortened sentences and diverted some offenders to the counties for incarceration and supervision, transforming California’s criminal justice system into what supporters hope will become a humane model around the country.

But amid the changes, crime has increased in recent years, sparking debate about the causes and giving ammunition to those leading a new effort to roll back some of the reforms.

An analysis by the Marshall Project and the Los Angeles Times found that California’s crime rates remain near historic lows, but overall crime spiked in both 2012 and 2015, the years that immediately followed two major statewide measures aimed at decreasing the number of people in prison. Those jumps were mainly driven by increases in property crimes, particularly thefts from motor vehicles.

After decades of mirroring national downward trends in violent crime, California saw a 12% increase from 2014 to 2017, while the violent crime rate in the other 49 states together increased only 3%, the analysis showed. In 2014, California voters approved a ballot measure that reduced sentences for many low-level drug and property crimes. California’s property crime rate fell slightly in the last two years, but remains 2% higher than it was in 2014. By contrast, the rate of property crimes in the rest of the nation has dropped by 10% over the same period.

There is no simple explanation. Crime trends vary dramatically from county to county. Thirty-one of the state’s 58 counties saw an increase in violent crime last year, while 22 saw an increase in property crimes. The rest stayed flat or declined. What single factor can explain the fact that violent crime went up 6% last year in Los Angeles but fell 6% in Sacramento?

There also have been large differences in the way counties spent the billions in state money allocated to implement the new measures. Some focused on building jails, others on recruiting and deploying police, and still others experimented with collaborative courts and reentry programs.

La-1545291841-6s9kam0io9-snap-image

To complicate matters, specific crimes come with their own caveats. Reports of rape have increased nationally since 2013, for example, but sexual assaults have traditionally been underreported, and part of the increase stems from the FBI’s decision to broaden its definition of rape in 2013. (The Marshall Project and Times data analysis excluded rape.) Reports of aggravated assaults in California also have increased, but part of that increase is likely due to underreporting from 2005 to 2012 by the Los Angeles Police Department.

California’s criminal reform revolution began in earnest in 2011 after the U.S. Supreme Court approved a cap on the number of inmates in prison. Lawmakers responded by passing Assembly Bill 109, known as realignment, which lowered the prison population by shifting the burden to the counties to house and supervise thousands of inmates convicted of crimes that the law categorized as nonviolent and nonserious.

Three years later, California voters approved Proposition 47, which turned drug use and most theft convictions from felonies to misdemeanors. In 2016, voters overhauled the state parole system by backing Proposition 57, which gave thousands of inmates the chance to earn an earlier release from prison.

The undeniable result of all these measures is that people are on the street today who would have been locked up in previous years. Critics of the reforms argue that they have created a permissive climate that makes policing harder and weakens the deterrent effect of a possible prison sentence.

“There’s no accountability,” said Assemblyman Jim Cooper (D-Elk Grove). “People know they can get away with things. That’s contributed to it. That’s really been a big source of frustration. No one’s going to jail anymore.” Cooper, a retired Sacramento County sheriff’s captain, has been a leading voice in a coalition of prosecutors and law enforcement groups pushing back.

A statewide initiative that will appear on the 2020 ballot would reverse some provisions of Proposition 47, toughen supervision of parolees and disqualify some prisoners from early release.

Backers of the proposed rollback argue that the state’s drug courts, intended as an alternative to criminal courts, are seeing fewer people because prosecutors can no longer force someone into treatment with the threat of a felony. (Some counties, including San Diego, have reported decreases in drug court participation since Proposition 47, but no statewide figures are available.) Those who favor toughening the law also claim counties are struggling to supervise offenders with violent criminal records.

Supporters of the prison downsizing measures dispute any link between the new laws and an increase in crime. They argue that using 2014 as a baseline — the year with the fewest crimes reported in the state since the 1960s — unfairly skews any analysis. “To look at it from a year-to-year basis is very short-sighted,” said Michael Romano, the director of the Three Strikes Project at Stanford Law School who helped write Proposition 47. “We really have had a sustained downward trend over the past decade or two.” He said it’s unlikely any single factor led to an increase in crime, but rather a combination of issues, such as poverty and unemployment, in different counties throughout the state.

Californians for Safety and Justice, a group that co-authored Proposition 47, points out that several states saw larger increases in violent crime than California from 2016 to 2017. (An analysis by The Times and the Marshall Project found 20 states with larger increases in violent crime rates.) They note that none of the recent laws changed penalties for violent crimes.

In 2013, the nonpartisan Public Policy Institute of California found that the first major prison downsizing law, realignment, had no effect on violent crime, but did lead to an increase in auto thefts. In 2016, a prestigious social science journal reached a similar conclusion. Under realignment, people convicted of auto theft, a nonviolent felony, usually serve shorter sentences in their local jails and are released under local supervision.

Two studies published this summer — one by a UC Irvine criminologist and another by the Public Policy Institute of California —found no link between Proposition 47 and increases in violent crime. Both noted a possible link between the initiative and increases in larceny, particularly thefts from motor vehicles, although the Irvine study found those links too tenuous to conclude Proposition 47 was to blame.

After national crime data for 2017 released this fall showed California departed from the national trend — violent crime in California ticked up slightly while it fell slightly across the 49 other states taken together — researchers said they planned to revisit the question of a link between Proposition 47 and violent crime. California’s robbery rate jumped 14% from 2014 to 2017; the rest of the country saw a 7% drop. “It is troubling and deserves more attention,” said Magnus Lofstrom, policy director of corrections at the Public Policy Institute of California.

In addition to praising the work of this article, I wanted to flag the possibility that the stories of crime in California might get even more complicated and unclear if and when we get complete data for 2018. The recent Brennan Center report indicates crime is down in 2018 in some major California cities and that murder is down a lot in all big California cities. If these numbers hold true throughout the state reform advocates will have some important data to push back on the claim that reform rollbacks are needed to enhance public safety.

UPDATE The day after running this general story about an uptick in California crime, the Los Angeles Times followed up with this more encouraging local tale under the headline "Crime once plagued San Joaquin County, but now its jail has empty beds. Here’s what it did right."  The unsurprising take-away is that how and how well a jurisdiction implements criminal justice reform impacts how well criminal justice reform works.

December 20, 2018 in National and State Crime Data, Reentry and community supervision, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences | Permalink | Comments (1)

Friday, December 14, 2018

Details on further carve-outs and amendments to FIRST STEP Act sought by Senators Tom Cotton and John Kennedy

I have been able to get copies of proposed FIRST STEP Act amendments that Senator Tom Cotton and Senator John Kennedy will seek votes on next week.  Specifically, I have posted for downloading below a one-page explanation, the text of the proposed amendments, and a letter of support from the National Association of Police Organizations.  Here is key text from the one-pager (with bolding in the original):

AMENDMENT 1: Excluding serious felons from early release to prerelease custody and supervised release

The First Step Act already excludes some classes of felons from using the bill’s early release time credits to transfer into prerelease custody or supervised release for up to one-third of their sentences.  This list has grown as we have identified dangerous crimes — but it is still inadequate. For example, according to career sex-crimes prosecutors, 18 U.S.C. § 2422(b) is a commonly used statute to prosecute attempted child molesters.  Prisoners convicted of this statute are still eligible for early release under the revised bill. This amendment adds nine serious, violent, or sex-related criminal statutes to the “ineligible prisoners” list, excluding them from early release.  These offenders will still receive anti-recidivism programming and are eligible to earn other incentives, but will not be granted early release compared with current law....

AMENDMENT 2: Notifying victims before a offender is allowed to transfer out of prison early

This amendment would require the warden to notify each victim, when applicable, before an offender is transferred early into prerelease custody or supervised release.  It would give the victim an option to make a statement to the warden before the offender is released.

AMENDMENT 3: Tracking the effectiveness of the anti-recidivism programs

This amendment would create transparency by requiring the Bureau of Prisons to track the rearrest data for each prisoner who is transferred out of prison early into supervised release or prerelease custody.  This will provide valuable data to measure the effectiveness of the evidence-based anti-recidivism programs in the bill.

All Three Amendments Are Supported by the National Association of Assistant U.S. Attorneys, the Federal Law Enforcement Officers Association, the National Association of Police Organizations, and victims rights groups Force 100 and Arizona Voices for Crime Victims.

Download Final Cotton Kennedy one-pager on First Step Act Amendment

Download Text Cotton Kennedy First Step Amendment

Download NAPO Supports Cotton-Kennedy Amdt1_S.3649%5b3%5d

I am not a fan of many of the existing 60+ carve-outs in the current draft of the FIRST STEP Act limiting who gets certain incentives for being involved in anti-recidivism programming. Among my worries with these carve-outs is that sophisticated federal prosecutors and defense attorneys may develop (hard-to-see) ways to plead around these carve-outs so that certain federal defendants will be able to avoid their impact while others will not.  This makes the entire sentencing system and the mechanisms being set up by the FIRST STEP Act less transparent and potentially less effective.  So, I hope the Senate will resist even more carve-outs.

The victim-notification provision seems to overlap with The Crime Victims' Rights Act, 18 USC § 3771, which provides that a crime victim has the "right to reasonable, accurate, and timely notice ... of any release ... of the accused."  I am not sure if the federal system consistently complies with this provision of the CVRA, and arguably this proposed amendment serves to expand and enhance the existing statutory right.  And, of course, a large number of federal prisoners, such as those convicted of various drug and immigration and gun possession offenses, did not commit crimes with tangible victims needing to be notified.

And, as regular readers should know, I always support provisions that seek to soundly enhance the requirement of governments to soundly collect and analyze and make public data about sentencing systems and prison programming.  

Some of the most recent of many prior related posts:

December 14, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

Wednesday, December 12, 2018

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

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

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

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

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

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

December 12, 2018 in Collateral consequences, Criminal Sentences Alternatives, Data on sentencing, Detailed sentencing data, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (1)

Tuesday, December 11, 2018

"Charlottesville Jury Recommends 419 Years Plus Life For Neo-Nazi Who Killed Protester"

The title of this post is the headline of this NPR piece reporting on a high-profile jury sentencing verdict this afternoon.  Here are the details:

The 21-year-old avowed neo-Nazi who murdered a woman when he plowed his car into a crowd of counterprotesters last year at a white nationalist rally in Charlottesville, Va., will likely spend the rest of his life in prison.

A jury in Charlottesville said Tuesday that James Alex Fields Jr. should be sentenced to life plus 419 years in prison and $480,000 in fines, for killing Heather Heyer and seriously injuring 35 others.

Judge Richard Moore will decide whether to sign off on the recommended sentence at a hearing on March 29.

The life sentence was in response to Fields' first-degree murder conviction. The jury arrived at 419 additional years, The Associated Press reports, by recommending "70 years for each of five malicious wounding charges, 20 for each of three malicious wounding charges, and nine years on one charge of leaving the scene of an accident."

A day earlier, jurors heard emotional testimony from Heyer's mother, Susan Bro, and from several victims struck by Fields on Aug. 12, 2017, during the Unite the Right rally that weekend. "Heather was full of love, justice and fairness," Bro said, according to the Richmond Times-Dispatch. "Mr. Fields tried to silence her. ... I refuse to let him."

Bro also told the jury that she does not hate Fields for killing her daughter, a loss she described as an "explosion" that has blown up her family.

Meanwhile, Fields' attorneys asked the jury to consider their client's mental state on the day of the murder. A psychologist "testified that Fields was diagnosed with bipolar disorder and schizoid personality disorder at the ages of 6 and 14, respectively," the Times-Dispatch reported....

Fields also faces federal hate crime charges, which allow for the death penalty.

I think it at once silly and telling when defendants are facing or are given sentences that are much longer than the United States has been a country. And here, of course, Fields will have to be in prison until the year 2437 and then face a life sentence!

Jokes aside, the interesting questions now are (1) whether the Virginia judge will adopt the jury's sentencing recommendation, and (2) whether federal prosecutors will still be eager to pursue federal charges to possibly seek a death sentence for Fields.

Prior related post:

December 11, 2018 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

Sunday, December 09, 2018

New study highlights that "1 in 2 people in the United States has had an immediate family member incarcerated"

Download (27)This recent USA Today piece, headlined "'This isn't just numbers – but lives': Half of Americans have family members who've been incarcerated," reports on a notable new report about the real scope of incarceration in the so-called land of the free. Here is how the press account gets started:

One of Felicity Rose's first memories of her father is of the sheet of glass that separated them when she visited him in prison.  Growing up, she tried to hide his past, the prison sentences that kept him behind bars for drug crimes and the ripple effect it had on her family, both financially and psychologically. 

Over time, Rose realized her family wasn't alone.  Her story was one of millions, as noted in a first-of-its-kind study released Thursday by FWD.us, where Rose works directing research on criminal justice.   Among the findings, obtained first by USA TODAY, were that half of adults in the USA have an immediate family member who has been incarcerated. That's about 113 million people who have a close family member who has spent time behind bars. 

The study by FWD.us, an organization critical of U.S. immigration and criminal justice policy, was done in partnership with Cornell University. The conclusions were drawn from a survey of more than 4,000 people, a sample size representative of the U.S. population. 

I recommend the full FWD.us report, titled "Every Second: The Impact of the Incarceration Crisis on America’s Families," in both its electronic form and in its 55-page hard copy form.  Here is the executive summary from the report:

On any given day, there are more than 1.5 million people behind bars in state or federal prisons in the United States. Admissions to local jails have exceeded 10 million each year for at least the past 20 years. These figures are staggering, but the long reach of incarceration extends well beyond the jail and prison walls to the families on the other side.

New research from FWD.us and Cornell University shows that approximately one in two adults (approximately 113 million people) has had an immediate family member incarcerated for at least one night in jail or prison. One in seven adults has had an immediate family member incarcerated for at least one year, and one in 34 adults has had an immediate family member spend 10 years or longer in prison. Today, an estimated 6.5 million people have an immediate family member currently incarcerated in jail or prison (1 in 38).

The negative effects that individuals experience after being incarcerated are well documented, but much less is known about the incredible direct and indirect harms and challenges that families face when a loved one has been taken away. This report examines this important but understudied aspect of mass incarceration and provides new estimates on the prevalence of family incarceration for parents, siblings, spouses, and children.

The findings reinforce the need to significantly reduce incarceration and support the families that are left behind. Despite limited recent declines in the jail and prison population, an unprecedented number of people continue to be impacted by incarceration and the collateral consequences of that experience which can last a lifetime.  Research has shown that even short periods of incarceration can be devastating to people’s lives and additional punishments such as fines and fees, restrictions on employment and housing, and the loss of basic human rights limit opportunities for success long after individuals have completed their sentences.

Our study shows that incarceration impacts people from all walks of life — for example, rates of family incarceration are similar for Republicans and Democrats — but the impact is unevenly borne by communities of color and families who are low-income.  Black people are 50 percent more likely than white people to have had a family member incarcerated, and three times more likely to have had a family member incarcerated for one year or longer.  People earning less than $25,000 per year are 61 percent more likely than people earning more than $100,000 to have had a family member incarcerated, and three times more likely to have had a family member incarcerated for one year or longer.

The remainder of this report examines the prevalence of family incarceration for different demographic groups and communities, the impact of incarceration on family outcomes, and the policies that exacerbate the harmful effects of having a loved one incarcerated.  The findings show just how pervasive and entrenched incarceration has become in America, and the results should convince decision-makers and the public to take a hard look at the policies that drive incarceration and the opportunities to strengthen families rather than tear them apart.

December 9, 2018 in Collateral consequences, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Thursday, December 06, 2018

Tennessee Supreme Court rule in high-profile case that juve life sentence allows for possible release after 51 years

As reported in this local article, "Tennessee Supreme Court said Thursday that Cyntoia Brown, a Nashville woman serving a life sentence in prison for a murder she committed at 16, could be eligible for release after she serves 51 years in prison." Here is more about a notable ruling in a high-profile case:

Brown, now 30, has been locked up since 2004, when she was convicted of shooting 43-year-old Nashville real estate agent Johnny Allen. Her legal team launched a challenge to her life sentence in the federal court system, pointing to a 2012 ruling from the U.S. Supreme Court saying that giving juveniles life sentences without parole was cruel and unusual in most cases.

The Sixth Circuit Court of Appeals, which is considering Brown’s case, said Tennessee sentencing laws are unclear. Some sections suggested Brown's conviction should lead to life without parole while others suggested she should eventually be released.

During a hearing this summer, Sixth Circuit judges suggested that if Brown would never be eligible for release under state law, her sentence could be overturned. The appeals court asked Tennessee's high court to weigh in before it made a final decision.

The Tennessee Supreme Court’s unanimous answer that Brown would eventually be eligible for release sometime after her 69th birthday could complicate her legal team’s argument.

In its eight-page decision released Thursday, the state Supreme Court determined that a defendant sentenced to life in prison for a first-degree murder committed on or after July 1, 1995, will become eligible after serving a minimum of 51 years in prison. The rule also applies to 14 other offenses including rape, kidnapping and aggravated child abuse. The opinion will be handed over to the federal appeals court for review.

Brown also is asking Gov. Bill Haslam for clemency. The state parole board, which was split in its recommendations, sent the case file to the governor's office in July....

At 16, Brown climbed into a pickup truck on Murfreesboro Pike with Allen, a stranger, drove to his home, got into his bed — then shot him in the back of the head with a .40-caliber handgun as he lay naked beside her. Brown's advocates say she was forced into prostitution in fear of her life and wronged by the legal system. Prosecutors say Brown killed the man to rob him. Following her trial in 2006, Brown was convicted of Allen's murder.

Pop stars such as Rihanna and Kim Kardashian West have taken to social media encouraging Brown's freedom.

The full ruling from the Tennessee Supreme Court is available at this link.  Given the SIxth Circuit's existing jurisprudence applying Miller, it now seems quite unlikely Brown will succeed with an Eighth Amendment challenge to her sentence.

December 6, 2018 in Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0)

Wednesday, December 05, 2018

Sentencing Project launches campaign to "End Life Imprisonment" with new book and other resources

Meaning_of_life_finalThe folks at The Sentencing Project this week officially kicked off what they are calling here a "Campaign to End Life Imprisonment." The website for the campaign has a facts, figures and stories about life imprisonment, and this four-page fact sheet has lots of data and graphs and includes these particulars:

While people of color are over-represented in prisons and jails; this disparity is even more evident among those sentenced to life imprisonment, where one of every five African American prisoners is serving a life sentence.

Over 6,000 women are serving life or virtual life sentences. The number of women serving life sentences has risen at a faster rate than for men in recent years. Between 2008 and 2016, women lifers increased by 20%, compared to a 15% increase for men.

Juveniles serve life sentences at alarming rates as well. In fact, the U.S. is unique in the world in its use of life imprisonment without parole for crimes committed by teenagers.

In addition to the more than 2,000 people serving life without the possibility of parole, there are more than 7,000 juveniles serving life with parole and another 2,000 serving “virtual life” prison terms of 50 years or more.

In conjunction with this launch, the New Press has published this new book authored by Marc Mauer and Ashley Nellis, with contributions by Kerry Myers, titled "The Meaning of Life: The Case for Abolishing Life Sentences." Here is how the publisher's website describes the book:

Most Western democracies have few or no people serving life sentences, yet here in the United States more than 200,000 people are sentenced to such prison terms.

Marc Mauer and Ashley Nellis of The Sentencing Project argue that there is no practical or moral justification for a sentence longer than twenty years.  Harsher sentences have been shown to have little effect on crime rates, since people “age out” of crime — meaning that we’re spending a fortune on geriatric care for older prisoners who pose little threat to public safety.  Extreme punishment for serious crime also has an inflationary effect on sentences across the spectrum, helping to account for severe mandatory minimums and other harsh punishments.

A thoughtful and stirring call to action, The Meaning of Life also features moving profiles of a half dozen people affected by life sentences, written by former “lifer” and award-winning writer Kerry Myers.  The book will tie in to a campaign spearheaded by The Sentencing Project and offers a much-needed road map to a more humane criminal justice system.

December 5, 2018 in Offender Characteristics, Offense Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (2)

Tuesday, December 04, 2018

"Tipping Point: A Majority Of States Abandon Life-Without-Parole Sentences For Children"

The title of this post is the title of this new document from the The Campaign for the Fair Sentencing of Youth. Here is its executive summary:

A majority of states now ban life without parole for children or have no one serving the sentence.  A combination of judicial decisions and state legislative reforms have reduced the number of individuals serving by 60 percent in just three years, and that number continues to decline.  Today, approximately 1,100 people are serving life without parole for crimes committed as children.

For the approximately 1,700 individuals whose life-without-parole sentences have been altered through legislative reform or judicial resentencing to date, the median sentence nationwide is 25 years before parole or release eligibility.  Nearly 400 people previously sentenced to life without parole for crimes committed as children have been released from prison to date.  Despite national momentum rejecting life-without-parole sentences for children, racial disparities continue to worsen; of new cases tried since 2012, approximately 72 percent of children sentenced to life without parole have been Black — as compared to approximately 61 percent before 2012.

December 4, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

Monday, December 03, 2018

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

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

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

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

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

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

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

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

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

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

Some of the most recent of many prior related posts:

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

Thursday, November 29, 2018

Lots of interesting data from BJS on "Time Served in State Prison, 2016"

The Bureau of Justice Statistics released this interesting new document titled simply "Time Served in State Prison, 2016," which has lots of interesting data on how much time offenders serve in state prisons. Here is what BJS lists as "Highlights":

November 29, 2018 in Offense Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (3)

Monday, November 26, 2018

An notable debunking of "Three Myths From Critics of Criminal Justice Reform"

Ken Cuccinelli, the former Attorney General of Virginia, has this lengthy new commentary at The American Spectator headlined "Three Myths From Critics of Criminal Justice Reform: They need to be knocked down." I recommend the piece in full, and here are some excerpts:

Criminal justice reform — thanks, in part, to an overwhelming 360-59 vote in the House on the FIRST STEP Act — has quickly gained momentum, championed by conservatives as a down payment towards ensuring that prisoners re-entering society do so with the tools they need to succeed. President Trump, who campaigned on restoring law and order, has been a vocal supporter of prison reform since earlier this year, and has recently signaled support for various sentencing proposals, as well.

But not everyone agrees. Senator Tom Cotton, a long-time skeptic of criminal justice reform, penned an article in the Wall Street Journal this summer in which he generally praised rehabilitation efforts in federal prisons but took sentencing reform to task, calling it a “foolish approach” that would “endanger communities.”  Meanwhile, now-former Attorney General Jeff Sessions has been critical of reform efforts as well, claiming that changes in drug sentencing risks allowing violent crime to run amok.  Research and, most importantly, experience — particularly in southern red states — inform us that both arguments lie on shaky, outdated foundations.  As the Senate appended modest sentencing proposals to the FIRST STEP Act, it is worthwhile to separate facts from fiction.

Myth #1: Drug crimes are inherently violent.

Among the subtler tactics that critics of federal sentencing reform employ is a simple progression: begin with discussion of America’s real, ongoing problem with drugs; immediately shift the focus to violent crime, as if the two issues are self-evidently identical; and then argue that the reason for America’s historical reduction in violent crime can be traced to the adoption of lengthy mandatory sentences for drug dealing.

This may make for a neatly packaged argument, but reality spins a far more complicated tale. First, plain observation of drug overdoses and violent-crime trends simply doesn’t lend itself to correlation. Between 1999 and 2016, drug overdose death rates increased by over 200 percent, while violent crime rates fell by over 26 percent. These skyrocketing overdose deaths occurred despite an entire bevy of mandatory sentencing tools available to federal authorities that were ostensibly enacted to curb the worst consequences of drug crimes. Instead, such sentences have had no discernible effect on deaths caused by drugs....

Myth #2: Longer prison sentences equals less crime....

While a simple fact is that research has yet to pinpoint the factor(s) most responsible for our historic reduction in crime, the weight of evidence is clearly against those theories which emphasize imprisonment — particularly imprisonment meant to discourage drug use.

According to a comprehensive analysis of the dramatic rise of incarceration rates and its affects by the National Research Council, there is an outward “plausibility to the belief that putting many more convicted felons behind bars would reduce crime.” However, the authors explain that even a cursory examination of the data reveals the “complexity” of drawing meaningful correlations between crime and incarceration rates:

Violent crime rates have been declining steadily over the past two decades, which suggests a crime prevention effect of rising incarceration rates. For the first two decades of rising incarceration rates, however, there was no clear trend in the violent crime rate — it rose, then fell, and then rose again. While incapacitation effects may be effective when targeted towards “very-high rate or extremely dangerous offenders,” the authors conclude that the “incremental deterrent effect of increases in lengthy prison sentences is modest at best.”...

Criminal justice reform is engineered to incentivize participation in substance-abuse treatment and other recidivism-reduction programs, or otherwise to curb overly-punitive sentences which may extract their pound of flesh but also rapidly lose their effectiveness as one moves down the offense severity ladder.

To summarize, weightier factors besides simply “locking up” criminals must be at play to account for crime reduction. Ascribing that reduction solely to lengthy sentences is a theory that doesn’t play well with the data — especially given the fact that thirty states have recently experienced crime rate reductions while simultaneously reducing their prison populations.

Myth #3: No one goes to federal prison for “low-level, non-violent” drug offenses.

It is easy to produce a statistic that there are relatively few people incarcerated for federal drug possession offenses and then brush one’s hands together with satisfaction, believing that the “we overincarcerate” canard has just been dispelled. But while this immediate fact is indeed true, putting it into context makes this line of argument less salient.

First, consider the composition of all federal drug offenders. In 2017, about 48 percent of drug offenders sentenced at the federal level — a majority of whom are trafficking offenders — were in the lowest criminal-history category, having been previously sentenced for, at most, one low-level offense.  Roughly 60 percent were in the lowest two categories.  To be sure, drug trafficking, which includes street-level dealing, involve more serious offenses.  Even so, there are still tens of thousands of federal inmates being incarcerated — for historically longer periods of time — for lower-level drug offenses.  Recidivism is a real problem, but federal prison is a big stick, and shouldn’t be the front-line corrective for every offense. Too often it is, even for simple possessors (over 80 percent of whom receive a term of imprisonment)....

We must begin shifting the paradigm away from using mandatory sentences as the obvious tool against lawbreaking — as states such as Florida, South Carolina, and Texas have done. Crimes should be punished, but the law loses its legitimacy when it punishes disproportionately.  The FIRST STEP Act — along with modest sentencing reforms — will help regain the law’s moral force and make us safer at the same time.

November 26, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Sunday, November 25, 2018

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

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

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

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

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

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

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

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

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

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

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

Wednesday, November 21, 2018

Notable account of Acting AG Matt Whitaker's sentencing work as US Attorney in Iowa

The Washington Post has this interesting new piece about the current Acting US Attorney General's sentencing record as a chief federal prosecutor in Iowa. The lengthy piece is headlined, "As U.S. attorney, Whitaker imposed longer-than-usual drug sentences," and merits a full read. Here are snippets:

Raeanna Woody’s crimes hardly seemed like they would add up to a life sentence in prison. She had two nonviolent drug convictions, for possessing marijuana and delivering 12 grams of methamphetamine. But when she was arrested in a third drug case, she said, the office of U.S. Attorney Matthew G. Whitaker decided to make an example of her.

Under Whitaker, who is now acting attorney general, Woody was given a choice: spend the rest of her life in jail, or accept a plea bargain sentence of 21 to 27 years, according to court records. She took the deal.

Federal Judge Robert W. Pratt in the Southern District of Iowa later accused prosecutors of having “misused” their authority in her nonviolent case. He urged President Barack Obama to commute her sentence — and Obama did shorten her term , after she had served 11 years.

Woody’s case highlights one of the most controversial if little-known aspects of Whitaker’s career: his efforts to obtain unusually stiff sentences for people accused of drug crimes. Whitaker spent nearly five years as U.S. attorney for the Southern District of Iowa. His office was more likely than all but one other district in the United States to use its authority to impose the harshest sentences on drug offenders, according to a finding by a different Iowa federal judge, Mark W. Bennett, who it called a “deeply troubling disparity.”

“If the president can look at my case and he can see that what I had done wasn’t severe enough to warrant that many years, then why was I given that many years to begin with, why was that much of my life taken from me?” Woody, a 57-year-old mother of five, said in an interview. “I blame Whitaker’s office and everybody underneath him.”...

The rate at which Whitaker’s office and another one in Iowa imposed the harshest possible sentence was a “jaw-dropping and deeply troubling disparity compared to the vast majority of federal courts in the nation,” Bennett said in a statement to The Washington Post. Whitaker never appeared before him, and he declined to comment about Whitaker’s term as U.S. attorney.

Whitaker’s Southern District of Iowa used enhanced sentences in 84 percent of relevant cases, compared with 26 percent nationwide, Bennett’s finding said. Bennett concluded that a defendant in the Northern District of Iowa — which had a rate of filings similar to Whitaker’s district — was 2,532 percent more likely to be subjected to an enhanced sentence compared with someone convicted of a similar offense in a Nebraska district. “I found their harshness in filing 851 notices inexplicable,” Bennett said....

In Raeanna Woody’s case, the filing was used as leverage by Whitaker’s office. Woody, whose last name at the time was Paxton, appeared before Judge Pratt in the Southern District on July 10, 2008. Her previous drug convictions resulted in little or no jail time. Her third offense occurred when authorities determined that she drove a car in which another individual was pursuing a drug deal.

Woody said a prosecutor from Whitaker’s office, Jason T. Griess, had informed her that, as a third-time offender, her sentence could be “enhanced” to mandatory life in prison under an 851 filing. She said she had no choice but to make a plea bargain that resulted in the sentence of 21 to 27 years. “I remember them saying through Jason that he wouldn’t budge, and ‘me and my office are going to make an example out of you.’ ”...

Pratt [later] then wrote a letter to Obama’s pardon attorney expressing his displeasure with how the case had been handled by Whitaker’s office. Pratt wrote in the May 13, 2016, letter that he was forced to impose a sentence that “was entirely disproportionate” to her crime.

The “most compelling reason” that the president should grant clemency, Pratt wrote, was that Whitaker’s office “misused” its power by threatening Woody with a life sentence by using the 851 filing, “effectively removing my discretion” to give Woody “a fair sentence.” Pratt stressed that Woody “was and is a nonviolent offender. She was not a significant player in the overall ‘conspiracy’ in this case. . . . This was not a conspiracy that involved ‘drug kingpins.’ It was a situation where methamphetamine-addicted individuals resorted to selling the drug to support their own addictions.”

For me, this story is not as much about the work of a particular US Attorney as it is yet another tale about the need to reform federal sentencing laws to reduce the sentencing powers now given to federal prosecutors rather than to federal judges.

November 21, 2018 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, November 15, 2018

"Eight Keys to Mercy: How to shorten excessive prison sentences"

The title of this post is the title of this notable new Prison Policy Initiative report.  I recommend the whole report, and here are excerpts from its start and its summary concepts:

After decades of explosive growth, prison populations have mostly flattened. Much of that is due to lawmakers lessening penalties for drug possession or low-level property offenses. While a welcome start, a bolder approach is necessary to truly begin to make a dent in the numbers of individuals who have served and will serve decades behind bars. This approach will take political courage from legislators, judges, and the executive branch of state governments.

Approximately 200,000 individuals are in state prisons serving natural life or “virtual” life sentences.  And as of year’s end 2015, one in every six individuals in a state prison had been there at least for 10 years. 

These are not merely statistics. These are people, sentenced to unimaginably long sentences in ways that do little to advance justice, provide deterrence, or offer solace to survivors of violence. The damage done to these individuals because of the time they must do in prison cells — as well as to their families and their communities — is incalculable.

People should not spend decades in prison without a meaningful chance of release.  There exist vastly underused strategies that policy makers can employ to halt, and meaningfully reverse, our overreliance on incarceration. We present eight of those strategies below....

Our 8 strategies

The eight suggested reforms in this report can shorten time served in different ways:

  • Several ways to make people eligible for release on parole sooner. 
  • One way to make it more likely that the parole board will approve conditional release on parole.
  • Several ways to shorten the time that must be served, regardless of sentencing and parole decisions.
  • One simple way to ensure that people are not returned to prison.

Of course, states vary in many ways, most critically in how they structure parole eligibility, and policymakers reading this report should anticipate tailoring our suggested reforms to their state systems. Each of the reforms laid out in this report could be effective independent of the others.  However, we encourage states to use as many of the following tools as possible to shorten excessive sentences:

  1. Presumptive parole
  2. Second-look sentencing
  3. Granting of good time
  4. Universal parole eligibility after 15 years
  5. Retroactive application of sentence reduction reforms
  6. Elimination of parole revocations for technical violations
  7. Compassionate release
  8. Commutation

November 15, 2018 in Clemency and Pardons, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0)

Tuesday, November 13, 2018

Prez Trump reportedly to announce support for FIRST STEP Act with sentencing provisions, greatly increasing its prospects for swift passage

This new CNN article, headlined "President Trump to announce support for criminal justice overhaul proposal," reports on encouraging news regarding efforts to get major federal criminal justice reform enacted in coming weeks. Here are the details:

President Donald Trump is expected to throw his support behind bipartisan criminal justice legislation during an event at the White House on Wednesday, two sources close to the process said.

Trump is scheduled to announce on Wednesday that he is supporting the latest iteration of the First Step Act, a bill that his son-in-law and senior adviser, Jared Kushner, has been working to craft and build support for alongside a bipartisan group of senators, the sources said.  The President will be joined by supporters of the legislation during the White House event, the sources said.

Supporters of the measure expect that Trump's explicit backing will help propel the prison and sentencing overhaul bill through Congress.  The President has wavered on whether to throw his support behind the bill in recent months, but the sources said he was swayed to back the bill on Tuesday after meeting with Kushner.

Trump's support came after several law enforcement associations announced their backing for the legislation.  The National District Attorneys Association, which represents 2,500 district attorneys and 40,000 assistant district attorneys, became the latest law enforcement organization to support the bill, according to a letter the group's president addressed to Trump....

The prosecutors' association's support for the legislation came on the heels of backing from several other law enforcement organizations, including the Fraternal Order of Police, International Association of Chiefs of Police, Law Enforcement Leaders to Reduce Crime and Incarceration and the National Organization of Black Law Enforcement Executives, which also penned a letter of support to Trump.

The Major Cities Chiefs Association and Major County Sheriffs of America also withdrew their opposition to the legislation, writing in a letter to Kushner dated Tuesday that they "endorse the objectives of the First Step Act" and the legislation "strengthens how Federal prisoners may be integrated into the community and set on a path to live positive and productive lives."  Less than two weeks ago, the groups wrote to Kushner to say they could not back the bill.

Opposition from since-ousted Attorney General Jeff Sessions and Republican Sen. Tom Cotton of Arkansas, in particular, served as key stumbling blocks to advancing the legislation, with both touting opposition within law enforcement circles -- an argument that is quickly fading as groups back the proposal.  Sources close to the process said the support from law enforcement associations is key to advancing the measure and securing the President's full-throated support.

Proponents of the bill made several changes to it to win backing from law enforcement groups, including stiffer sentencing guidelines for fentanyl-related offenses and a compromise provision to modestly expand the definition of a serious violent crime.

Now the question is whether enough Democrats will rally to support the compromise package or hold out for a more ambitious overhaul of the nation's sentencing laws. Sen. Cory Booker of New Jersey, who had announced his opposition to a previous version of the bill because he felt it did not go far enough, said Tuesday that he is still looking to get more changes to the bill.

Though I am not going to count any sentencing reform chickens until they are hatched and have been signed into law, I am inclined to start predicting that we are on the verge of a remarkable federal criminal justice reform achievement that will be the most consequential statutory reform in nearly 35 years.  (I am also inclined to recall pieces from late 2016, like the one blogged here, that astutely suggested federal criminal justice reform might still be a real possibility in the Trump era.)  I am not quite yet ready to start patting a whole lot of folks on the back, but I am getting close to wanting to start celebrating the culmination of five years of very hard work by lots of folks inside and outside the Beltway.  Fingers crossed.

Some of many prior related posts:

UPDATE: A few other recent press reports reinforce my sense and concern that nothing here is a done deal yet:

From the Washington Post, "Trump receptive to compromise criminal justice overhaul backed by Kushner"

From The Hill, "Criminal justice reform faces a make-or-break moment"

November 13, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Mandatory minimum sentencing statutes, Prisons and prisoners, Scope of Imprisonment, White-collar sentencing | Permalink | Comments (0)

"Women’s Mass Incarceration: The Whole Pie 2018"

Pie_2018_womenThe Prison Policy Initiative has today posted an updated version of its remarkable incarceration "pie" graphic and associated report on the particulars of who and how women are incarcerated in the United States.  Here is part of the report's introductory text and subsequent discussion:

With growing public attention to the problem of mass incarceration, people want to know about women’s experience with incarceration.  How many women are held in prisons, jails, and other correctional facilities in the United States?  And why are they there?  How is their experience different from men’s?  While these are important questions, finding those answers requires not only disentangling the country’s decentralized and overlapping criminal justice systems, but also unearthing the frustratingly hard to find and often altogether missing data on gender.

This report provides a detailed view of the 219,000 women incarcerated in the United States, and how they fit into the even broader picture of correctional control.  This 2018 update to our inaugural Women’s Whole Pie report pulls together data from a number of government agencies and calculates the breakdown of women held by each correctional system by specific offense.  The report, produced in collaboration with the ACLU’s Campaign for Smart Justice, answers the questions of why and where women are locked up:

In stark contrast to the total incarcerated population, where the state prison systems hold twice as many people as are held in jails, incarcerated women are much more evenly split between state prisons and local jails.  This has serious consequences for incarcerated women and their families.

Women’s incarceration has grown at twice the pace of men’s incarceration in recent decades, and has disproportionately been located in local jails.  The explanation for exactly what happened, when, and why does not yet exist because the data on women has long been obscured by the larger scale of men’s incarceration....

Looking at the big picture shows that a staggering number of women who are incarcerated are not even convicted: a quarter of women who are behind bars have not yet had a trial.  Moreover, 60% of women under local control have not been convicted of a crime and are awaiting trial....

Avoiding pre-trial incarceration is uniquely challenging for women.  The number of unconvicted women stuck in jail is surely not because courts are considering women, who are generally the primary caregivers of children, to be a flight risk.  The far more likely answer is that incarcerated women, who have lower incomes than incarcerated men, have an even harder time affording cash bail.  When the typical bail amounts to a full year’s income for women, it’s no wonder that women are stuck in jail awaiting trial....

So what does it mean that large numbers of women are held in jail — for them, and for their families?  While stays in jail are generally shorter than in stays in prison, jails make it harder to stay in touch with family than prisons do.  Phone calls are more expensive, up to $1.50 per minute, and other forms of communication are more restricted — some jails don’t even allow real letters, limiting mail to postcards.  This is especially troubling given that 80% of women in jails are mothers, and most of them are primary caretakers of their children.  Thus children are particularly susceptible to the domino effect of burdens placed on incarcerated women....

Too often, the conversation about criminal justice reform starts and stops with the question of non-violent drug and property offenses.  While drug and property offenses make up more than half of the offenses for which women are incarcerated, the chart reveals that all offenses — including the violent offenses that account for roughly a quarter of all incarcerated women — must be considered in the effort to reduce the number of incarcerated women in this country. This new data on women underlines the need for reform discussions to focus not just on the easier choices but on the policy changes that will have the most impact....

Even the “Whole Pie” of incarceration above represents just one small portion (17%) of the women under correctional supervision, which includes over a million women on probation and parole.  Again, this is in stark contrast to the general incarcerated population (mostly men), where a third of all people under correctional control are in prisons and jails.

November 13, 2018 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

Monday, November 12, 2018

More encouraging clemency news in Oklahoma in wake of 2016 sentencing reform ballot initiative

In this post a few month ago, I noted the important work of lawyers and law students in seeking commutations for dozens of Oklahoma inmates in the aftermath of the state's passage of Question 780, which  made nonviolent drug possession offenses and low-level property offenses misdemeanors instead of felonies.  A helpful reader alerted me to notable additional news on this front reported in this two local articles:

"Board recommends clemency for 22 drug possession offenders." Excerpts:

Nearly two dozen offenders were recommended for clemency Wednesday, the first wave of hopefuls for early release from lengthy felony prison sentences for simple drug possession two years after voters approved turning that crime into a misdemeanor. State Question 780 isn’t retroactive, so Project Commutation sought deserving prisoners who were considered ideal candidates to have their sentences drastically shortened in line with the sentencing reform measure.

Kris Steele, chairman of Oklahomans for Criminal Justice Reform, is spearheading the movement and a member of the board voting on the commutation requests. Steele said a governor’s staff member was present for Wednesday’s all-day proceedings and expressed to him that Gov. Mary Fallin is committed to signing off on the cases before the new year.

The commutations modify sentences but don’t erase convictions. Fallin has final authority to approve, deny or modify the Oklahoma Pardon and Parole Board’s recommendations within 90 days. “Gov. Fallin has been monitoring these cases closely and has taken an interest in trying to expedite the process of the governor’s approval, with the intent, as I understand it, to get these individuals home together with their families by the end of the year,” Steele said.

Twenty-three offenders had their cases for commutations heard Wednesday by the five-member pardon and parole board. Only one offender failed to garner a simple majority vote, with concerns about misconduct in prison perhaps influencing decisions. Oklahomans for Criminal Justice Reform launched Project Commutation in partnership with the Tulsa County Public Defender’s Office. Another eight applicants — the final ones in this commutation campaign — will be on the docket in December.

Starting July 1, 2017, State Question 780 made nonviolent drug possession offenses and low-level property offenses misdemeanors instead of felonies. The maximum sentence for simple drug possession now is one year in jail.  Sentences considered Wednesday were for between 10 years and 40 years long, with time served from five months to nearly three years.  “Twenty-two of 23 of the people that we helped with applications were mothers in prison serving decades had they not gone through this process,” said Corbin Brewster, Tulsa County chief public defender.  “The impact beyond the incarceration on their families is just enormous.”...

University of Tulsa law students helped to interview and whittle down a field of 700 applicants to 49 for the first stage of the commutation process. There are 31 who made it through to the second and final stage before the governor’s desk.

"Oklahoma group wants to build on success of commutation project for prisoners with drug possession charges." Excerpts:

During commutation hearings last week, offenders offered numerous reasons for why they were unable to succeed in alternative drug courts. Failing stuck them with lengthy prison sentences for possessing drugs.

Project Commutation has been an opportunity for a handful of convicts to earn another shot at a new life, advocating for clemency after State Question 780 turned simple drug possession into a misdemeanor rather than a felony.  But Oklahomans for Criminal Justice Reform wants more — the advocacy group intends to encourage lawmakers in the upcoming legislative session to apply the law retroactively.

“The Legislature will kick off in early February, and we are urging them to look at these sentences,” said Danielle Ezell, an OCJR board member, as she stood outside the correctional center where the commutation hearings took place Wednesday. “There’s over 1,000 folks in for simple drug possession that, if charged today, would not be incarcerated. And we would like to see those charges (retroactively addressed).”

Prior related posts:

November 12, 2018 in Clemency and Pardons, Drug Offense Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0)

Sunday, November 11, 2018

"US Criminal Justice Policy and Practice in the Twenty‐First Century: Toward the End of Mass Incarceration?"

The title of this post is the title of this new paper now available via SSRN and authored by Katherine Beckett, Lindsey Beach, Emily Knaphus and Anna Reosti.  Here is its abstract:

Although the wisdom of mass incarceration is now widely questioned, incarceration rates have fallen far less than what would be predicted on the basis of crime trends.  Informed by institutional studies of path dependence, sociolegal scholarship on legal discretion, and research suggesting that “late mass incarceration” is characterized by a moderated response to nonviolent crime but even stronger penalties for violent offenses, this article analyzes recent sentencing‐related reforms and case processing outcomes.  Although the legislative findings reveal widespread willingness to moderate penalties for nonviolent crimes, the results also reveal a notably heightened system response to both violent and nonviolent crimes at the level of case processing.

These findings help explain why the decline in incarceration rates has been notably smaller than the drop in crime rates and are consistent with the literature on path dependence, which emphasizes that massive institutional developments enhance the capacity and motivation of institutional actors to preserve jobs, resources, and authorities.  The findings also underscore the importance of analyzing on‐the‐ground case processing outcomes as well as formal law when assessing the state and fate of complex institutional developments such as mass incarceration.

November 11, 2018 in Offense Characteristics, Scope of Imprisonment, Who Sentences | Permalink | Comments (2)

Saturday, November 03, 2018

Buckeyes take the field to make forceful case for criminal justice reform through support for Issue 1

Download (23)Regular readers know I am following closely the debate over the interesting and intricate drug sentencing and prison reform initiative on the November 2018 ballot in Ohio, now known as Issue 1.  (The Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law has been hosting public panels about Issue 1 under the title Ballot Insights, and has created a Resources Page for Issue 1 and a Commentary Page on Issue 1.)  Regular readers also know that I am a sports fan who is always intrigued and excited when prominent athletes take an interest in criminal justice reform issues. 

For all those reasons, I am especially drawn to this new commentary authored by Malcolm Jenkins and Austin Mack under the headline "Vote Yes on 1: Why We Must Treat and Not Jail Addiction."  I recommend the commentary in full and here are excerpts:

Mass incarceration is the most urgent civil rights issue of our time.  America’s stubborn commitment to the failed war on drugs, tough-on-crime policies, and lengthy prison sentences has resulted in the caging of a breathtaking number of black and brown people.  These policies have not made us safer, and they have not addressed the underlying causes of crime, such as poverty, mental illness, a lack of access to health care, and relatedly, substance abuse.  Instead, these policies have ripped apart families and neighborhoods, leaving a blight on communities of color that will last for decades unless we immediately reverse course.

These ineffective policies have been on full display in Ohio, which has an incarceration rate higher than any other country in the world (other than the United States).  It has the fourth highest total prison population in the U.S. and its prisons sit at 130 percent capacity.  Ohio’s zest for incarceration is costly  —  the prison’s budget is $1.8 billion a year. While other states are starting to reduce both their crime rates and prison populations through evidence-based reforms, Ohio has largely stayed the course of mass incarceration, cramming more and more people into eight by ten cells.  The population is projected to keep growing, costing Ohioans more and more.

But this November, we have a chance to change direction and be a leader in the criminal justice reform movement.  On the ballot is State Issue 1, which will convert many crimes of addiction from felonies to misdemeanors. Instead of going to state prison, people convicted of low-level drug possession will receive treatment, supervision, or county jail. They would not be saddled with a felony conviction, which can mean a lifetime of barriers to employment, housing, and more. Instead, they would have access to critical treatment.  And Ohio would invest the money saved in people — in badly needed treatment and in services for crime victims.

This will make us safer.  Prosecutors and law enforcement can focus on more serious offenses like drug trafficking, which remains a felony. Meanwhile, people who suffer from addiction can stay out of prison and receive the treatment and services they need. In the long run, this will mean more jobs.  And more jobs means less crime.  Voting in favor of Issue 1 is, in this way, a no brainer....

Righting the harsh injustices of the failed war on drugs is long overdue.  Drug arrests and prosecutions consistently affect black communities at an alarming rate that is far greater than white communities. In 2006, for example, police arrested black Ohioans at nearly 6 times the rate of white Ohioans.  85 percent of those arrests were for use, or possession, offenses. Issue 1 can’t right our past wrongs, but it can prevent some of them from happening in the future.

As student athletes (and a proud alum) at the best university in this country and in one of the greatest states, we know Ohioans want what is fair for all communities.  Some use fear mongering to divide us, but we know Ohioans know better than that.  We can do better  —  we can lead in reform, rather than fall behind.  We can be fair and compassionate, rather than pursuing the same old policies that crowd our jails and prisons and make us less safe. O-H-I-O.  Vote yes on Issue 1 this November.

For those who do not recognize the names of these authors of this commentary, here is the "About the Co-Authors" description:

Malcolm Jenkins is the Co-Founder of the Players Coalition, a 2018 Super Bowl Champion Safety for the Philadelphia Eagles and an alum of The Ohio State University.  Players Coalition is an independent 501c3/501c4 organization led by professional athletes to impact social and racial inequality.  Visit www.players-coalition.org for more information and follow us at @playercoalition.

Austin Mack is a Wide Receiver for the football team and President of “Redefining Athletic Standards” at The Ohio State University. This Op-Ed is supported by its fellow members.

Prior related posts:

November 3, 2018 in Drug Offense Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Monday, October 29, 2018

"Who Locked Us Up? Examining the Social Meaning of Black Punitiveness"

The title of this post is the title of this new quasi-book review authored by Darren Lenard Hutchinson now on SSRN.  Here is its abstract:

Mass incarceration has received extensive analysis in scholarly and political debates. Beginning in the 1970s, states and the federal government adopted tougher sentencing and police practices that responded to rising punitive sentiment among the general public.  Many scholars have argued that U.S. criminal law and enforcement subordinate people of color by denying them political, social, and economic well-being.  The harmful and disparate racial impact of U.S. crime policy mirrors historical patterns that emerged during slavery, Reconstruction, and Jim Crow.

In his Pulitzer Prize-winning book Locking Up Our Own: Crime and Punishment in Black America, James Forman, Jr. demonstrates that many blacks supported aggressive anticrime policies that gave rise to mass incarceration.  On the surface, this observation potentially complicates arguments that conceive of U.S. criminal law and enforcement as manifestations of white supremacist political power.  Forman’s failure to provide a comprehensive analysis of the racist dimensions of punitive sentiment makes his research subject to such an interpretation.  A deeper analysis, however, reconciles Forman’s research with antiracist accounts of U.S. crime policy. 

In particular, social psychology literature on implicit bias, social dominance orientation, and right-wing authoritarianism provides a helpful context for situating black punitive sentiment within antisubordination criminal law theory.  These psychological concepts could link punitiveness among blacks with outgroup favoritism and in-group stigma that derive from structural inequality and antiblack social stigma.  The social psychology of punitive sentiment, resilience of white supremacy, and conservative political ideology will likely present substantial barriers to the merciful approach to criminality that Forman proposes.

October 29, 2018 in Race, Class, and Gender, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Sunday, October 28, 2018

"Mass incarceration isn’t always the issue. Uneven incarceration is."

Title of this post is headline of this recent Washington Post commentary by Charles Lane.  Here are excerpts (with a little cursory commentary to follow):

“Mass incarceration” update: It peaked during the years 2007-2008 and has been quietly but consistently falling ever since. The U.S. prison and jail population that equaled 760 out of every 100,000 people in each of those two years had declined by the end of 2016 to 670 per 100,000, according to the Justice Department.

Does that 11.8 percent drop represent meaningful progress? Well, compared with what? If the standard is the low-violent-crime, low-incarceration norm enjoyed by the United States’ peer nations in Western Europe and Japan, the progress here looks modest at best.  Germany, for example, had an incarceration rate of 76 per 100,000 in 2016, and a murder rate of 1.18 per 100,000, according to the United Nations. 

Yet the United States is clearly headed in the right direction: We have managed to halt and reverse ever-growing incarceration rates, including, crucially, for black men, whose numbers in prison have fallen by about 98,000 since 2009, according to the Pew Research Center. The overall incarceration rate is now at a 20-year low, Pew reports.

Meanwhile, violent crime, despite a troubling uptick in 2015 and 2016, has not reverted to the out-of-control rates of the late 1980s and early 1990s.  According to FBI data released last month, the 2017 U.S. murder rate was 5.4 per 100,000, roughly quintuple Germany’s, but still about half what it was in 1991.

In one significant respect, however, the problem in the United States may be underincarceration.  As a Post team reported in June, murder goes all but unpunished in large areas of numerous U.S. cities, with impunity concentrated in heavily minority areas where police-community relations are at their worst and gang intimidation at its strongest. In Baltimore and Chicago, The Post report noted, police “solve so few homicides that vast areas stretching for miles experience hundreds of homicides with virtually no arrests.”

And because no one seriously questions that murderers and other violent offenders should be imprisoned (indeed, 54 percent of the state prison population is serving time for violent offenses, not drug offenses or other nonviolent crimes), these data imply that, for some U.S. jurisdictions, mass incarceration is not the issue, but rather something possibly more corrosive: uneven incarceration. Minority communities experience a criminal-justice system that simultaneously over- and under-enforces the law....

Despite recent decreases, the United States still incarcerates more people, in absolute numbers and as a share of our population, than any other nation on Earth. This statistic is nothing to be proud of.

Considered in proper context, though, it reflects not only historic social and racial inequalities, and punitive attitudes, but also the fact that the United States is the only large nation on Earth with both a functioning criminal-justice system and a fairly high level of violent crime.

The goal of criminal justice should not be any particular level of incarceration, high or low, but rather fair, consistent and effective enforcement focused on the most repugnant and most socially destabilizing crimes.  We’re not there yet, but compared with the recent past, we are doing better.

I commend this commentary for noting that "we are doing better" on crime and punishment in the US, while also noting that we also still have way too much violent crime and way too much prison punishment in our nation.  These realities should call for, especially after the last few days of hate-fueled crimes, some real soul-searching about what makes America less than great on these metrics.  I certainly have some thoughts on some factors that I think fuel these realities (e.g., disparities, drugs, guns, leadership), but what I think is most important is that any and everyone concerned about either crime or punishment give real thought to the progress we are making and how far we still have to go even when merely compared to any comparable nation.  

October 28, 2018 in National and State Crime Data, Scope of Imprisonment | Permalink | Comments (0)

Thursday, October 25, 2018

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, October 23, 2018

"Connecting the Disconnected: Communication Technologies for the Incarcerated"

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

Incarceration is a family problem — more than 2.7 million children in the United States have a parent in jail or prison.  It adversely impacts family relationships, financial stability, and the mental health and well-being of family members.  Empirical research shows that communications between inmates and their families improve family stability and successful reintegration while also reducing the inmate’s incidence of behavioral issues and recidivism rates.  However, systemic barriers significantly impact the ability of inmates and their families to communicate.

Both traditional and newly developed technological communication tools have inherent advantages and disadvantages.  In addition, private contracting of communication services too often leads to abusive practices and conflicts of interest for facilities.  Although technology plays a critical and expanding role in communications, a comprehensive evaluation of the methods and policies surrounding inmate communications is needed.  Efforts to address incarceration rates, education, and research gaps, along with an understanding of the potential and limitations of communication technologies, are critical to the development of policy initiatives.  These tools should be employed with a regulated approach to choosing and contracting for communication services to effectively reduce barriers and improve outcomes.

October 23, 2018 in Prisons and prisoners, Scope of Imprisonment, Technocorrections | Permalink | Comments (0)

Monday, October 22, 2018

Two notable commentaries in support of FIRST STEP Act from inside the Beltway

The Washington Examiner and The Washington Times are both right-leaning papers, which only adds to the import of these two recent commentaries in these publications:

"Our cruel and inhumane prison system is so close to reform" by Mark Vargas.  An excerpt:

Thanks to former President Bill Clinton, the 1994 crime bill created an America that was less compassionate, less forgiving, at times inhumane, and sent many nonviolent, first-time offenders away to prison for a very long time.

At the time, supporters of the Clinton crime bill argued that such measures would reduce crimes and keep our streets and neighborhoods safer. But in the end, the legislation only accelerated mass incarceration, stripped inmates of their dignity, and created the false narrative that everyone in prison was evil and a danger to society. It is why the NAACP in 1993 referred to the legislation as a “crime against the American people.”

But thanks to the leadership of President Trump, the discussion about prison and sentencing reform is back on the table. In a recent poll conducted by the University of Maryland, a majority of the country support the idea of criminal justice reform as well.

For Attorney General Jeff Sessions and others to make the argument that prison reform will make our country less safe exposes their ignorance and how out of touch they are. As creatures of the swamp, they care more about maintaining power than making a difference. Sessions' comments show just how political the Justice Department has become under his leadership.

"Justice demands passage of First Step bill to rehabilitate lives" by Rebecca Hagelin.  An excerpt:

I’ll never forget the heart-wrenching scene from my visit to the women’s prison. I sat in silence. For the first time, I pondered the unintended consequences of lengthy mandatory prison sentences for drug offenses. Don’t get me wrong: I’m a conservative, and I’m “tough on crime.” I just realize that locking up moms and dads for years for nonviolent drug offenses has an unending ripple effect, doing more damage to society than good.

Under current federal laws, many nonviolent drug offenses have mandatory sentences of two decades. The full scope of the consequences of such lengthy sentences unfolds every day in families across the country. The tiny girl who threw her arms around her mommy is an adult by now, and I often wonder if her mom has returned home yet.

Sadly — incredibly — our federal prison system treats such inmates as the forgotten men and women. In so doing, their children have become forgotten too. With little or no vocational training, drug rehabilitation programs or opportunities to receive education, these inmates eventually return to society estranged from their families and devoid of hope.

The result? Within just three years 40 percent will commit another crime, many falling victim to their untreated addiction, and end up back behind bars. It’s a vicious cycle that wreaks personal and societal havoc in neighborhoods and families across the country. We must face the fact that our federal prison system is failing our citizens, and come to grips with the reality that the opioid epidemic will not be solved by maintaining the status quo.

Thank God, President Trump is committed to effective prison reform and combatting the drug crisis. Through his leadership and the hard work of Jared Kushner, the prison reform First Step Act passed the House of Representatives in May with overwhelming bipartisan support. This much-needed legislation now contains modest, commonsense sentencing reform initiatives added by crime reduction advocates on the Senate Judiciary Committee.

October 22, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Campaign 2016 and sentencing issues, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

Sunday, October 21, 2018

"Reforming Restrictive Housing: The 2018 ASCA-Liman Nationwide Survey of Time-in-Cell"

The title of this post is the title of this big new report now available here via SSRN. Here is its abstract:

Reforming Restrictive Housing: The 2018 ASCA-Liman Nationwide Survey of Time-in-Cell is the fourth in a series of research projects co-authored by the Association of State Correctional Administrators (ASCA) and the Arthur Liman Center at Yale Law School.  These monographs provide a unique, longitudinal, nationwide database.  The topic is “restrictive housing,” often termed “solitary confinement,” and defined as separating prisoners from the general population and holding them in cells for an average of 22 hours or more per day for 15 continuous days or more.

The 2018 monograph is based on survey responses from 43 prison systems that held 80.6% of the U.S. prison population.  They reported that 49,197 individuals — 4.5% of the people in their custody — were in restrictive housing.  Extrapolating, we estimate that some 61,000 individuals were in isolation in U.S. prisons.  This number does not include people in most jails or juvenile, military, or immigration facilities.

Two areas of special concern are the impact of mental illness and the length of time individuals spend in restrictive housing.  Correctional systems use a variety of definitions for serious mental illness.  Using their own descriptions, jurisdictions counted more than 4,000 prisoners identified as seriously mentally ill and in restrictive housing.  Within the 36 jurisdictions that reported on the length of time people had been in segregation, most people were held for a year or less.  Twenty-five jurisdictions counted more than 3,500 individuals held more than three years.

Reforming Restrictive Housing details policy changes tracking the impact of the 2016 American Correctional Association’s (ACA) Restrictive Housing Performance Based Standards. The ACA Standards call for limiting the use of isolation for pregnant women, juveniles, and seriously mentally ill individuals.

This monograph also compares the responses of the 40 prison systems that answered the ASCA-Liman surveys in both 2015 and 2017.  See ASCA-Liman, Aiming to Reduce Time-in-Cell (Nov. 2016), SSRN No. 2874492. The number in restrictive housing was reported to have decreased from 56,000 in 2015 to 47,000 in 2017.  Looking at specific states, in more than two dozen systems, the numbers in segregation decreased. In 11 systems, the numbers went up.

A related monograph, Working to Limit Restrictive Housing: Efforts in Four Jurisdictions to Make Changes, details the work of four correctional administrations to limit — and in one state abolish — holding people in cells 22 hours a day for 15 days or more.

October 21, 2018 in Data on sentencing, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Tuesday, October 16, 2018

"'Second Looks, Second Chances': Collaborating with Lifers on a Video about Commutation of LWOP Sentences"

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

In Pennsylvania, life means life without the possibility of parole (“LWOP”) or “death by incarceration.”  Although executive commutation offers long serving rehabilitated lifers hope of release, in the past 20 years, only 8 commutations have been granted by the state’s governors.  This article describes the collaboration between an organization of incarcerated persons serving LWOP and the law-school-based Penn Program on Documentaries and the Law that produced a video supporting increased commutations for Pennsylvania lifers.  The article details the methodology of collaborative videomaking employed, the strategic decisions over content that were impacted by the politics of commutation, and the contributions of visual criminology to the video’s portrayal of the lifers who participated in the project.

October 16, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Vera Institute of Justice urges "Reimagining Prison"

Download (2)The Vera Institute of Justice has recently produced this big new report as part a big new project under the label "Reimagining Prison." Here is how the report's executive summary gets started:

The United States holds approximately 1.5 million people in its state and federal prisons.  Although this number has declined since its peak in 2009, mass incarceration is hardly a thing of the past.  Even if the nation returned to the incarceration rates it experienced before 1970, more than 300,000 people — approximately one per 1,000 residents— would still be held in U.S. prisons.  And the conditions of that confinement are dismal. Prison in America is a place of severe hardship — a degree of hardship that is largely inconceivable to people who have not seen or experienced it themselves or through a loved one.  It is an institution that causes individual, community, and generational pain and deprivation. For those behind the walls, prison is characterized by social and physical isolation, including severe restriction of personal movement, enforced idleness, insufficient basic care, a loss of meaningful personal contact and the deterioration of family relationships, and the denial of constitutional rights and avenues to justice. Those who work in prisons suffer too, with alarming rates of post-traumatic stress disorder and suicide compared to the general population.

Beyond the walls of prison, incarceration’s impact is broad: mass imprisonment disrupts social networks, distorts social norms, and hollows out citizenship.  Over this country’s long history of using prisons, American values of fairness and justice have been sacrificed to these institutions in the name of securing the common good of public safety.  But the harsh conditions within prisons have been demonstrated neither to ensure safety behind the walls nor to prevent crime and victimization in the community.

The story of American prisons is also a story of racism.  We as a nation have not yet fully grappled with the ways in which prisons — how they have been used, the purposes they serve, who gets sent to them, and people’s experiences inside them — are intimately entwined with the legacy of slavery and generations of racial and social injustice. Built on a system of racist policies and practices that has disproportionately impacted people of color, mass incarceration has decimated the communities and families from which they come. It is time to acknowledge that this country has long used state punishment generally — and incarceration specifically — to subordinate racial and ethnic minorities.

The recent prison incident in South Carolina that left seven dead, as well as prison strikes across the country in 2016 and 2018 protesting inhumane treatment, serve as tragic wake-up calls that something is fundamentally wrong inside America’s prisons.  With a few limited exceptions, correctional practice today remains underpinned by retribution, deterrence, and incapacitation.  These realities beg the question: isn’t there another way? We have failed to ask this question with sufficient seriousness and thoroughness.  The time for us to do so is now.  And so, to take a truly decisive step away from the past, America needs a new set of normative values on which to ground prison policy and practice — values that simultaneously recognize, interrogate, and unravel the persistent connections between racism and this country’s system of punishment.

In this report, the Vera Institute of Justice (Vera) reimagines the how, what, and why of incarceration. And in so doing, we assert a new governing principle: human dignity. This principle dictates that “[e]very human being possesses an intrinsic worth, merely by being human.” It applies to people living in prison as well as the corrections staff who work there.

October 16, 2018 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Friday, October 12, 2018

Noting the latest data on use of solitary confinement in the US

This recent post at Reason, titled "U.S. Prisons Held At Lest 61,000 Inmates in Solitary Confinement Last Year," by C.J. Ciaramella reports on the latest accounting of extreme version of incarceration in the US. I recommend the full post, which starts this way:

The number of U.S. prison inmates held in solitary confinement has dropped over the past five years, according to a new report, but an estimated 61,000 people last year still faced imprisonment in tiny cells for up to 22 hours a day in conditions that many former inmates, mental health professionals, and at least one sitting U.S. Supreme Court justice say amount to torture.

A longitudinal survey co-authored by the Association of State Correctional Administrators (ASCA) and the Arthur Liman Center for Public Interest Law at Yale Law School found that, in the federal prison system and 43 state prison systems that provided data, 49,000 inmates in the fall of 2017 were confined to what is commonly known as "solitary." Extrapolating for the remaining states, the study estimates the total number to be 61,000.

The census asked jurisdictions to report, as of the fall of 2017, both their total prison populations and the number of prisoners held in restrictive housing. It includes federal and state inmates placed in any form of "restricted housing" for at least 22 hours a day for more than 15 consecutive days. In 2011, the United Nations Special Rapporteur on torture concluded that solitary confinement beyond 15 days constituted cruel and inhumane punishment.

The study's authors attribute the reduction to stricter state requirements for when inmates can be sent to solitary and how long they may be kept there. Colorado, for instance, has almost completely eliminated its use of solitary confinement. The Obama administration also banned the use of solitary confinement for juveniles in the federal prison system and limited the amount of time adults can spend in solitary.  "But the picture is not uniform," the ASCA warned in a press release. "In more than two dozen states, the numbers of prisoners in restrictive housing decreased from 2016 to 2018, but in eleven states, the numbers went up."

October 12, 2018 in Data on sentencing, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Tuesday, October 09, 2018

Despite fear-mongering opposition ads, drug sentencing and prison reform initiative polling strong in Ohio

I have blogged here and elsewhere about the interesting and intricate drug sentencing and prison reform initiative on the November 2018 ballot here in Ohio.  Originally called the "Neighborhood Safety, Drug Treatment and Rehabilitation Amendment," the initiative now is just known within Ohio as Issue 1. The Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law has been hosting public panels about Issue 1 under the title Ballot Insights, and has created a Resources Page for Issue 1 and a Commentary Page on Issue 1

I have not previously noted here the notable fear-mongering about Issue 1 that has emerged in recent months focused particularly on its effort to reduce drug possession offenses to misdemeanors and to allow prisoners to earn more time off their prison sentences.  In late August, Ohio Supreme Court Chief Justice Maureen O'Connor wrote a public letter warning of “catastrophic consequences" for Ohio if Issue 1 passes, and last week Gubernatorial candidate Mike DeWine began running a campaign ad involving local sheriffs stating "If you’re not scared [by Issue 1], you should be."  Lots of other judges and prosecutors and law enforcement official have used similar language their advocacy against Issue 1.

But, perhaps signalling just how strong the public supports significant drug sentencing and prison reform, the first big public poll on Issue 1 was released today and it shows the initiative with a nearly 18 point lead.  Here is a basic report on this poll:  

A criminal justice reform question on the Ohio statewide ballot has support from nearly 48 percent of likely voters while 30.5 percent oppose it and 21.7 percent aren’t sure how they’ll vote on the matter, according to a new poll released Tuesday by Baldwin Wallace University Community Research Institute....

The Baldwin Wallace poll, which was conducted Sept. 28 to Oct. 8, shows DeWine has 39.7 percent, Cordray 37.1 percent, Libertarian Travis Irvine has 4.3 percent, Ohio Green Party candidate Constance Gadell-Newton has 3.4 percent and 15.4 percent of voters are undecided. The poll has a margin of error of plus or minus 3.5 percent.

Notably, the full poll results indicate women voters favor Issue 1 by a 22 point margin (49 to 27) and Democrats favor Issue 1 by a 35 point margin (57 to 22). Assuming this poll numbers are solid, this results suggest to be that Issue 1 is quickly likely to pass if it turns out that women and/or Democrats end up being those especially motivated to show up to vote this November.

 Prior related posts:

UPDATE: Another (smaller) poll was released on October 10 concerning Issue 1, and it showed a much closer contest. This press article provides these details:

Ohio voters support a constitutional amendment to reduce penalties for some drug crimes and make other criminal justice reforms, according to a new poll released on the first day of early voting.

Issue 1 has the support of 43 percent of likely midterm voters surveyed in a Suffolk University/Enquirer poll; 38 percent oppose the measure. Nearly one in five said they had not yet decided how to vote....

The poll surveyed 500 likely Ohio voters by landline and cell phone from Oct. 4 to 8. The poll has a margin of error of 4.4 percentage points....

Issue 1 backers didn’t intend for the measure to become partisan but it has become a dividing line in the race for governor. Democrat Rich Cordray supports it as a way to reduce overcrowded prisons and funnel more money toward drug addiction treatment. His Republican opponent, Ohio Attorney General Mike DeWine, has said Issue 1 will allow drug dealers to avoid prison time and lead to more drug overdose deaths.

Among likely Cordray voters, 53 percent said they also support Issue 1 compared to only 33 percent of DeWine voters. 

October 9, 2018 in Drug Offense Sentencing, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

Sunday, October 07, 2018

You be the Illinois judge: what sentence for Jason Van Dyke after second-degree murder conviction in slaying of Laquan McDonald?

Though somewhat eclipsed by Supreme Court confirmation controversies, a high-profile criminal case culminated with a murder conviction on Friday when a jury found Chicago police Officer Jason Van Dyke guilty Friday of second-degree murder in the 2014 shooting of 17-year-old Laquan McDonald.  This CNN article about the verdict details that Van Dyke was also "found guilty of 16 counts of aggravated battery with a firearm [but] found not guilty of official misconduct."  And this AP piece, headlined "With conviction, Van Dyke likely avoided decades behind bars," highlights some of the sentencing realities that attend this verdict:

Jurors convicted Chicago police Officer Jason Van Dyke for murder and aggravated battery in the slaying Laquan McDonald, the black teenager who was shot 16 times as he walked away carrying a knife on Oct. 20, 2014.  But a legal expert explained that the 40-year-old Van Dyke is likely looking at less than 10 years in prison for killing the teen rather than many decades because jurors opted to convict him of second- and not first-degree murder.

After less than two full days deliberating on three weeks of testimony, jurors returned Friday with 17 guilty verdicts and one acquittal. By far the most serious charge Van Dyke faced originally was first-degree murder.  But Judge Vincent Gaughan told jurors before they started deliberations that they had the option of replacing first-degree murder with second-degree murder.

First-degree required a finding that Van Dyke's use of deadly force wasn't justified — that it was both unnecessary and unreasonable.  But Gaughan said jurors could find that Van Dyke truly believed his life was in jeopardy but that that belief wasn't reasonable.  That's the criteria for second-degree murder.

The jury also found Van Dyke guilty of all 16 counts of aggravated battery with a firearm. Each count corresponded to every bullet Van Dyke shot into McDonald. They acquitted him on the least serious charge, official misconduct....

First-degree murder carries a maximum sentence of life imprisonment. And with enhancements for having used a gun, Van Dyke would have faced a mandatory minimum of 45 years, according to Chicago defense attorney Steve Greenberg, who has defended clients at more than 100 murder trials.  Such a sentence, at Van Dyke's age, could have amounted to life.  The punishment for second-degree murder is no less than four years but no more than 20 years behind bars.

Jurors weren't told anything about the range of punishments for each charge. The judge did tell them that whether one charge might carry a greater or lesser sentence shouldn't factor at all into their decisions.

Each count of aggravated battery carries a mandatory minimum six years and a maximum of 30 years in prison. If Van Dyke had to serve six for each of the 16 counts — and do so one sentence after another - that would add up to 96 years. But Greenberg said judges almost always order defendants to serve such sentences simultaneously.  So, if Van Dyke gets the minimum for each count, he'd serve six years for all the battery convictions.

Another possibility is that the defense will ask, under complicated legal rules, for the judge to merge the crimes for which Van Dyke is convicted for sentencing purposes since they were all tied to a single event, Greenberg said.  That could mean Van Dyke is effectively sentenced only for second-degree murder, with its lower four-year mandatory minimum.

For a man convicted with no previous criminal record, Greenberg said the mandatory minimum is his best guess for a sentence handed down on Van Dyke.  "I would be shocked if he got a day over the four or six years," Greenberg said.

Greenberg said prison conditions for an officer, like Van Dyke, could be rougher than for average convicts. As a white officer convicted of killing a young African-American, prison authorities are likely to conclude he has to be kept away from other prisoners for his own safety. "He will probably be in a cell by himself," Greenberg said.  "It will be very hard time." That may have already started.  At prosecutors' request, Van Dyke's bond was revoked minutes after the verdicts were announced and Judge Gaughan ordered he be held in jail pending sentencing. He stood up from the defense table, then put his arms behind his back as two deputies led him away.

I am not an expert on Illinois sentencing law, but presuming this article has the law corrected, I am struck that the mandatory minimum prison term for second-degree murder in the state is 50% less than mandatory minimum for aggravated battery with a firearm. It is also notable and telling that if the sentencing judge here were permitted and inclined to run the various sentences consecutively rather than concurrently, the defendant here would be facing 100 years in prison as the applicable mandatory minimum.  But if the crimes are found to be "merged" under Illinois law, four years could become the minimum and 20 years the max.

October 7, 2018 in Gun policy and sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences | Permalink | Comments (8)

Thursday, October 04, 2018

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

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

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

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

 Prior related posts:

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

Tuesday, October 02, 2018

"Sentencing Reform: Fixing Root Problems"

The title of this post is the title of this new paper now available via SSRN authored by Peter Joy and Rodney Uphoff.  Here is its abstract:

In theory, at least, many subscribe to the belief that it is better to let 10 or 100 guilty persons go free rather than convict an innocent person.  Indeed, the American criminal justice system provides criminal defendants a panoply of important rights, including the right to effective assistance of counsel, in large part to ensure that the innocent are not convicted of crimes that they did not commit.  But defense counsel is there not only to protect the innocent, but also to ensure that, if the defendant is found guilty after trial or if the defendant pleads guilty before trial, he or she will receive a fair sentence.

In practice, however, too many criminal defendants receive lackluster representation, and few ever actually exercise their right to trial. Instead, our current criminal justice system is plea-bargain-driven, and the vast majority of state and federal criminal offenders plead guilty — approximately 97% of federal cases and 94% of state cases are resolved by guilty pleas rather than trials. Commenting on the prevalence of negotiated guilty pleas, the U.S. Supreme Court has stated that “plea bargaining is . . . not some adjunct to the criminal justice system; it is the criminal justice system.”

Why, then, are criminal defense lawyers able to persuade the vast majority of their clients to plead guilty, even those who are actually innocent?  Put simply, it is because our system punishes so severely those who go to trial and lose.  If we are serious about both minimizing the conviction of the innocent and sentencing reform, we must address this reality.  This essay, therefore, focuses on two pernicious features of our current criminal justice system — misuse of plea bargaining and misuse of informants — that explain why so few criminal defendants exercise their right to trial.  We conclude with proposals that might ameliorate those features of our system.

October 2, 2018 in Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Monday, October 01, 2018

California reduces reach of its broad felony-murder law, and provides for retroactive sentence reductions accordingly

In my Criminal Law class, we just finished a unit on mens rea and are about to start on homicide laws.  This interesting legal news out of California, headlined "California sets new limits on who can be charged with felony murder," comes at a very convenient time for me. Much more importantly, the law might mean less time in prison for others who got convicted of murder despite having no intent to kill. Here are the basic details:

Gov. Jerry Brown signed legislation on Sunday that limits who can be prosecuted for felony murder to those who commit or intend to commit a killing.  The new law, which goes into effect on Jan. 1, scales back California’s current felony murder rule, which allows defendants to be convicted of first-degree murder if a victim dies during the commission of a felony — even if the defendant did not intend to kill, or did not know a homicide took place.

For defendants facing prosecution for the crime, the new law could mean a shot at less time in prison. Hundreds of inmates serving time will be able to petition the court for a reduced sentence.

The new felony murder law, a bipartisan proposal co-authored by Sen. Nancy Skinner (D-Berkeley) and Sen. Joel Anderson (R-Alpine), is among a series of criminal justice policies enacted under the Brown administration to reduce the numbers of those incarcerated, and give prisoners more chances of early release and services to better prepare them to enter society.  State lawmakers this legislative session also eliminated the use of money bail and reduced punishment for teens under 15.

Defense lawyers and other supporters say the new prosecution standards requiring proof of intent will make the state’s felony murder law similar to how prosecutors charge other crimes. Cases in which an officer was killed will not be subject to the new law, which goes into effect on Jan. 1.  But law enforcement groups opposed the changes, arguing it could lead to more violent people on the streets....

Lawmakers who supported Senate Bill 1437 called the state’s felony murder law archaic and blamed it for disproportionately long sentences imposed on people who did not kill anyone. A 2018 survey that found 72% of women serving a life sentence for felony murder in California did not commit the homicide.  The average age of people charged and sentenced under the statute was 20, according to the report from the Anti-Recidivism Coalition and Restore Justice, a nonprofit that helps offenders reenter society....

On Sunday, Skinner called the law a historic and reasonable fix, bringing California in line with other states such as Arkansas, Kentucky, Hawaii, Massachusetts and Michigan that have narrowed the scope of their felony murder rules.  “California’s murder statute irrationally treated people who did not commit murder the same as those who did,” she said in a statement released Sunday.  “SB 1437 makes clear there is a distinction, reserving the harshest punishment to those who directly participate in the death.”

October 1, 2018 in Offense Characteristics, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1)

Sunday, September 30, 2018

Former Illinois Gov Rod Blagojevich makes "plea for prison reform"

The federal prison inmate formerly known as Blago has authored in the Washington Examiner this commentary published under the headline "Rod Blagojevich: My plea for prison reform." Here are excerpts:

I am living the reverse American dream — a bad dream that I share with other inmates at a prison in Colorado where I am currently serving a 14-year sentence.  So what happened?

Carved in stone on the front portico of the U.S. Supreme Court building are the words “Equal Justice Under Law.” But as I sit here in prison, I can’t help but reflect on those four words and feel an overwhelming sense of sadness — not just for me, but for many of my fellow inmates as well.  Here’s why.

It is not equal justice under law when over-sentencing is the rule rather than the exception; when our incarceration rate has increased by more than 500 percent over the last forty years; when an American citizen in good faith trusts the integrity of the courthouse, but to their horror discovers that the game is rigged, and that they are being denied a fair trial before proceedings even begin.

The national debate in Congress on prison and sentencing reform is a conversation that is long overdue.  And as that debate heats up, I’d like to offer a few points of my own and share some things I’ve learned on this painful journey.

As a dishwasher, I start work at 3:30 each morning and earn a total of $8.40 a month.  Did you know that the average wage for an inmate is 23 cents to $1.15 an hour?  In some states, inmates have to work for free.  I never expected to get rich in prison, but am I wrong in viewing this rock-bottom wage as society's way of showing its contempt, telling us that we are all worthless? Is that a good message to send to people we plan to release someday, and whom we'd rather not see offend again?  To people we hope will survive on their own without resorting again to crime?...

Did you know that the average cost to the taxpayer to house each inmate is around $33,000 a year?  In California, taxpayers pay $75,000 a year per inmate. In total, taxpayers are left with a $39 billion invoice each year.  And what’s the government’s solution? Increase our prison population and force hard working Americans to pay even higher taxes.

Did you know that federal prosecutors like to boast about their 97 percent conviction rate?  Yet when you think about it, shouldn't that fact raise an alarm bell to all freedom loving people? Michael Jordan, as great as he was, only made half the shots he attempted.  And knowing what I now know through my experience, this almost perfect success rate is convincing proof that the federal criminal justice system works against the accused.  It is neither a place to expect a fair trial nor is it a place where the promise of justice for all is a promise kept.

Did you know that from 2013 to 2017, the Federal Bureau of Prisons denied 94 percent of the applications from inmates requesting a “compassionate release” due to a terminal illness? And in all of these cases, instead of dying with dignity surrounded by loved ones, terminally ill inmates were left to die alone in prison.  Did you know that if a spouse or child passes away while you are in prison, that you’re not even allowed a furlough to attend the funeral services?  Did you know that when incarcerated women give birth, that they are chained and handcuffed to the hospital bed?

My time in prison has taught me that we need serious reforms.  It’s also taught me that there are a lot of people in here with good hearts.  Instead of creating a system that punishes and dehumanizes inmates, let’s create a system that rehabilitates prisoners and prepares them for life outside of prison.  So here is my message: We can never reach our potential until we as a people rise up and demand that our elected representatives bring about reform; until freedom is safeguarded by a renewed and unwavering commitment to the rule of law; until mercy seasons justice, and fair play governs those who govern us.

September 30, 2018 in Celebrity sentencings, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Thursday, September 27, 2018

"'You Miss So Much When You’re Gone': The Lasting Harm of Jailing Mothers Before Trial in Oklahoma"

Download (20)The title of this post is the title of this big new report produced by Human Rights Watch and the ACLU. Here is part of the report's starting summary:

Every day in Oklahoma, women are arrested and incarcerated in local jails waiting — sometimes for weeks, months, a year, or more — for the disposition of their cases.  Most of these women are mothers with minor children.

Drawing from more than 160 interviews with jailed and formerly jailed mothers, substitute caregivers, children, attorneys, service providers, advocates, jail officials, and child welfare employees, this report shows how pretrial detention can snowball into never-ending family separation as mothers navigate court systems and insurmountable financial burdens assessed by courts, jails, and child welfare services....

While most women admitted to jails are accused of minor crimes, the consequences of pretrial incarceration can be devastating.  This report finds that jailed mothers often feel an added, and unique, pressure to plead guilty so that they can return home to parent their children and resume their lives.  These mothers face difficulties keeping in touch with their children due to restrictive jail visitation policies and costly telephone and video calls.  Some risk losing custody of their children because they are not informed of, or transported to, key custody proceedings.  Once released from jail, they are met with extensive fines, fees, and costs that can impede getting back on their feet and regaining custody of their children.

Women are the fastest growing correctional population nationwide and since the 1990s, Oklahoma has incarcerated more women per capita than any other US state.  Local jails (which typically house people prior to conviction, sentenced to short periods of incarceration, or awaiting transfer to prisons for longer sentences) are a major driver of that growth.  On a single day, the number of women in jails across the US has increased from approximately 8,000 in 1970 to nearly 110,000 in 2014, a 1,275 percent increase, with rural counties accounting for the largest growth rate. Many times more are admitted to jail over the course of a year.

The growth in women’s incarceration also means growth in the number of jailed mothers, which has doubled since 1991.  Nationwide, more than 60 percent of women in prisons and nearly 80 percent of women in jails are mothers with minor children.  A study conducted by the US Bureau of Justice Statistics reported that a majority of incarcerated mothers lived with and were the sole or primary caretaker of minor children prior to their incarceration.

This means that when mothers go to jail or prison, their children are more likely not to have a parent left at home, and can either end up with other relatives or in foster care. One in 14 children in the US, or nearly six million children, have had a parent behind bars, which researchers identify as an adverse childhood experience associated with negative health and development outcomes.  Children of color are disproportionately impacted by parental incarceration, with one in 9 Black children having had an incarcerated parent compared to one in 17 white children.

Jailed mothers are often dealing with a myriad of issues prior to their incarceration, which is why comprehensive support is essential to keep families together, disrupt cycles of incarceration, and to preserve human rights to liberty, due process, equal protection, and family unity.  Losing contact with and custody of their minor children should not be a consequence of arrest and criminal prosecution.

While nationally and in Oklahoma the rate of women’s incarceration is garnering increasing attention, many barriers to achieving necessary reforms remain.

Human Rights Watch and the ACLU urge Oklahoma and other states to require the consideration of a defendant’s caretaker status in bail and sentencing proceedings, expand alternatives to incarceration, facilitate the involvement of incarcerated parents in their children’s lives and proceedings related to child custody, and substantially curb the imposition of fees and costs, which can impede reentry and parent-child reunification.

September 27, 2018 in Collateral consequences, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1)

Monday, September 24, 2018

Official FBI crime data for 2017 reports violent and property crime in decline in United States

Early markers hinted that crime was back to declining in 2017, after violent crime had increases in 2015 and 2016 in the United States.  This official FBI press release provides these basics on the latest official FBI data:

After two consecutive years of increases, the estimated number of violent crimes in the nation decreased 0.2 percent in 2017 when compared with 2016 data, according to FBI figures released today. Property crimes dropped 3.0 percent, marking the 15th consecutive year the collective estimates for these offenses declined.

The 2017 statistics show the estimated rate of violent crime was 382.9 offenses per 100,000 inhabitants, and the estimated rate of property crime was 2,362.2 offenses per 100,000 inhabitants. The violent crime rate fell 0.9 percent when compared with the 2016 rate; the property crime rate declined 3.6 percent.

These and additional data are presented in the 2017 edition of the FBI’s annual report Crime in the United States. This publication is a statistical compilation of offense, arrest, and police employee data reported by law enforcement agencies voluntarily participating in the FBI’s Uniform Crime Reporting (UCR) Program....

Of the 18,547 city, county, university and college, state, tribal, and federal agencies eligible to participate in the UCR Program, 16,655 agencies submitted data in 2017. A high-level summary of the statistics submitted, as well as estimates for those agencies that did not report, follows:

  • In 2017, there were an estimated 1,247,321 violent crimes.  The estimated number of robbery offenses decreased 4.0 percent, and the estimated number of murder and nonnegligent manslaughter offenses decreased 0.7 percent when compared with estimates from 2016.  The estimated volume of aggravated assault and rape (revised definition) offenses increased 1.0 percent and 2.5 percent, respectively.
  • Nationwide, there were an estimated 7,694,086 property crimes.  The estimated numbers for two of the three property crimes showed declines when compared with the previous year’s estimates.  Burglaries dropped 7.6 percent, larceny-thefts decreased 2.2 percent, but motor vehicle thefts rose 0.8 percent.
  • Collectively, victims of property crimes (excluding arson) suffered losses estimated at $15.3 billion in 2017.
  • The FBI estimated law enforcement agencies nationwide made 10.6 million arrests, (excluding those for traffic violations) in 2017.
  • The arrest rate for violent crime was 160.7 per 100,000 inhabitants; the arrest rate for property crime was 388.7 per 100,000 inhabitants.
  • By violent crime offense, the arrest rate for murder and nonnegligent manslaughter was 3.8 per 100,000 inhabitants; rape (aggregate total using the revised and legacy definition), 7.2; robbery, 29.3; and aggravated assault, 120.4 per 100,000 inhabitants.
  • Of the property crime offenses, the arrest rate for burglary was 61.7 per 100,000 inhabitants; larceny-theft, 296.0; and motor vehicle theft, 28.2. The arrest rate for arson was 2.8 per 100,000 inhabitants.

As I have said in the past and will say in the future, reports of declining crime rates is something that everyone should celebrate while continuing to consider how we can continue to do better both with crime and punishment.  As reported here last week, data from the Brennan Center suggests we are continuing to do better on crime issues in 2018.  Given that the latest prisoner statistics suggesting continued declining prison populations through 2017 and 2018 — e.g., as of September 20, 2018, the federal prison population was reported at 181,800, down more than 5% from the reported population of 192,170 in 2016 and down almost 20% from the 219,298 federal prisoners reported in 2013 — it seems we may be finding ways to have less reported crimes and less prison punishment. 

September 24, 2018 in National and State Crime Data, Scope of Imprisonment | Permalink | Comments (0)

Wednesday, September 19, 2018

Opportunities for law students and recent law grads interested in prisoners’ rights

Sharon Dolovich, Professor of Law and Director of the Prison Law & Policy Program at the UCLA School of Law asked me to post the following.  It is my pleasure to do so:

Below are two announcements for law students and recent law grads interested in prisoners’ rights:

  1. About 18 months ago, the UCLA Prison Law and Policy Program launched Prison Law JD, a listserv for current law students and young lawyers interested in prisoners’ rights. The list is currently used to share job and fellowship announcements and other information of interest, and we are in the midst of creating mechanisms to allow members to connect to one another directly over issues of mutual interest.  The ultimate aim is to forge a community among the next generation of prisoners’ rights advocates. If you know any law students or young lawyers who might want to join Prison Law JD, please invite them to contact me at dolovich@law.ucla.edu

  2. The National Prisoners’ Advocates Conference will take place at University of Denver College of Law Oct 5-6, 2018.  The day before, Thursday Oct 4, Prison Law JD will be hosting a pre-conference program. If you know anyone you think might like to participate in either part of this program, whether in person or remotely, please share this information with them.

From 3:30-5:15pm, there will be a panel discussion geared toward law students and recently graduated lawyers interested in doing this work. The panel will feature Sarah Grady of Loevy and Loevy on the nuts and bolts of prisoner litigation, Deb Golden of the Human Rights Defense Center on the Prison Litigation Reform Act (PLRA), and Bret Grote of the Abolitionist Law Center on non-obvious routes to doing prisoners' rights work.

For those unable to attend in person, this panel will be broadcast at the link below:

Starting out as a Prisoners’ Rights Lawyer: What You Need to Know, 10/4/2018 (Thu)

https://du-denverlaw.hosted.panopto.com/Panopto/Pages/Viewer.aspx?id=4a5ba04a-1669-4c85-929b-a95f0112fd67

Live stream from classroom starts at 3:20pm and ends at 5:30pm.

At 5:45pm, there will be a working group strategy session to think about how to build out the Prison Law JD community and best support the next generation of prisoners’ rights lawyers. Those who can’t be there in person are welcome to participate remotely. Here’s the call-in info:

Zoom Conference Call in Number and Meeting ID Number (Meeting Starts at 5:45 pm and Ends at 8:00 pm MDT)

Telephone: Dial(for higher quality, dial a number based on your current location):    US: +1 646 558 8656  or +1 669 900 6833

    Meeting ID: 568 249 890     International numbers available: https://zoom.us/u/aewKZAGStV

Any questions? Please contact Sharon Dolovich at dolovich@law.ucla.edu

September 19, 2018 in Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)