Sentencing Law and Policy

Prison Policy Initiative provides "Mass Incarceration 101: Resources to help students and teachers understand the carceral system"

Prison Policy Initiative have this timely new posting authored by Danielle Squillante with this full title: "Mass Incarceration 101: Resources to help students and teachers understand the carceral system: It’s back to school season, so we’ve curated information and tools for students and teachers to use when researching the carceral system."  The posting serves to highlight a number of PPI's major data reports, and it worth a full read.  Here is how it gets started:

Students and teachers are heading back to the classroom. In addition to math, science, and language arts, many will also focus on the criminal legal system and mass incarceration. Unfortunately for them, the carceral system operates like a black box, making it hard to study what’s happening inside the walls of prisons and jails. Fortunately, we have made it our business to make the data that does exist as accessible and understandable as possible.

To better support the work of students and teachers, we’ve curated a list of publications and tools they can use to better study the carceral system and that can serve as launchpads for further research.

Where to start: The big picture

To start any lesson on mass incarceration, you have to understand the U.S. doesn’t have one criminal legal system; instead, it has thousands of federal, state, local, and tribal systems that incarcerate a combined population of nearly 2 million people.

Our flagship report, Mass Incarceration: The Whole Pie, puts these pieces together to give the “big picture” of mass incarceration by explaining not only the scale of our carceral system but also the policy choices that have driven its expansion.  It provides the most comprehensive picture of how many people are locked up in the U.S., in what types of facilities, and why.  In addition to showing how many people are behind bars on any given day in the U.S., it goes on to bust 10 of the most persistent myths about prisons, jails, crime, and more.

Prison Policy Initiative briefing discusses "10 ways that mass incarceration is an engine of economic injustice"

The quoted portion of this post title is the title of this new briefing published by the Prison Policy authored by Eric Seligman and Brian Nam-Sonenstein. Here is how the discussion starts:

Money is power in the United States, and mass incarceration plays a major role in determining who can wield power and who can’t.  As we’ve noted repeatedly over the years, it is no coincidence that the poorest and most vulnerable communities are also the most policed.  The criminal legal system erects significant barriers to employment and the ballot box, economically and politically weakening entire communities.  Importantly, this arrangement impacts all workers: employers use this massive class of disadvantaged people to threaten all workers with replacement and increasingly risky unemployment if they dare to demand better wages and conditions.  Mass incarceration also weaves a narrative that pits people with similar economic interests against one another, reducing systemic inequality to matters of individual choice.  Fortunately, understanding mass incarceration as the wealthy’s preferred economic policy clarifies that ending it is necessary for all movements for justice and equality — all working people benefit from solidarity with criminalized people.

In this briefing, we compile ten examples of how mass incarceration blocks progress toward economic justice.  We argue that our massive system of criminalization is not an isolated issue, nor is it someone else’s problem; it is an engine of inequality that traps people in poverty, weakens worker power, and undermines political organizing toward a more prosperous future for the vast majority of people.

Interesting look at the different federal prison security levels and their costs

Walter Pavlo has this interesting new commentary in Forbes looking at the federal prison system, headlined "The High Price Of Minimum Security Federal Prisoners."  I recommend this piece in full, and here are excerpts: 

There are four security levels in the Federal Bureau of Prisons (BOP); minimum, low, medium and high. High security prisons are identified as U.S. Penitentiaries that house some of the most dangerous criminals, many doing life sentences. The compounds housing these prisoners which make up over 18,000 (11.8%) of the prison population have double fenced razor wire, electrical charged fencing, perimeter patrols and secure cells. In short, they are expensive to operate.

At the other end of security spectrum are minimum security facilities that are commonly called “camps.” Most do not even have any fencing around them, have fewer staff to monitor the prisoners and routinely allow prisoners to go unsupervised into the community for work details. Camps house those who have less than 10 years remaining in their sentence, many far fewer, and their populations are prisoners that were that are serving time for crimes that were not violent (low level drug dealers and white collar offenders).

One would think that the cost of housing a prisoner at a high security facility would be far more than the average cost of housing a camper. However, a recently released statement from Donald Murphy of the BOP’s Office of Public Affairs states an increase in the average cost of housing minimum security prisoners that approaches the average cost of housing someone at a U.S. Penitentiary.

Of the BOP’s nearly 160,000 prisoners, 24,000 of them are minimum security. The BOP’s statement was that the average cost of housing a minimum security prisoner in 2024 is $151.02. The cost of housing someone in a U.S. Penitentiary is $164.87 (Lows were $129.72 and Mediums are $122.50). Since there are more minimum security prisoners than high, the total costs of housing minimum security prisoners far exceeds the costs of housing those in high security....

One place to cut cost is to look at those in prison camps to see if there is an alternative, such as home confinement or halfway houses, to move them out of costly institutions. However, the BOP has, as Director Peters has stated, a shortage of halfway house capacity across the country....

The BOP’s prisoner population has shrunk over the last 12 years from over 200,000 to around 160,000 today. However, the BOP’s current budget of $8.3 billion, continues to be the largest portion of expenditures in the Department of Justice. Sixty-eight percent of that budget is for staff salaries and benefits. However, some question how many people the BOP needs to run operations....

If prisoners move out of camps, it creates a cascade of prisoners to be moved from higher security prisons to lower ones. One key to moving prisoners is creating a place for them to go. Halfway houses are in short supply and an NBC investigative report found that many, mostly minimum security prisoners, are staying in institutional prisons longer than necessary because of problems the BOP has with implementing the First Step Act.

"An Act of Regression: Louisiana takes a giant step backward in parole and sentencing reform"

The title of this post is the title of this new briefing from Prison Policy Initiative authored by Emmett Sanders. The subtitle of the discussion highlights its main themes: "Louisiana lawmakers are eliminating discretionary parole and implementing regressive truth-in-sentencing laws. These billion-dollar 'zombie policies' are set to double the prison population in a state that is already a world leader in incarceration and will harm public safety." Here is how the briefing gets started (with links from the original):

With the passage of HB 9, Louisiana recently became the 17th state since 1976 — and the first in nearly a quarter of a century — to eliminate discretionary parole as a pathway for releasing people from its prisons.  Simultaneously, the state began implementing HB 10, one of the harshest truth-in-sentencing laws in the country.  These were among a host of other so-called “tough on crime” bills that were signed by Louisiana’s new governor, and will affect nearly everyone sentenced in the state after August 1, 2024.  Together, this package of regressive bills will set prison and sentencing reform back decades in the state: although lawmakers have framed them as “public safety” measures, these laws will have the opposite effect, doubling the prison population, compelling billions of dollars in new prison construction, and drastically escalating violence and trauma for incarcerated people and prison staff in the state.

Notable prison releases in the UK to deal with prison overcrowding

I generally do not keep up with international crime and punishment stories, but this new story and headline from across the pond caught my eye: "Union warns of probation officer shortage ahead of prisoners’ early releases;  Up to 2,000 offenders due to be freed in England and Wales in September after serving 40% of sentence."  Here are some details:

Ministers will struggle to prepare for next month’s early release of thousands of prisoners, a union has warned, after the latest figures showed a drop in the number of probation officers. Ministry of Justice data shows there were 178 fewer probation officers over the last quarter, as the service gets ready to monitor another 5,500 prisoners released over the next year despite deepening concerns over increased workloads for staff.

Up to 2,000 prisoners are expected to be released in the second week of September as part of an early release scheme, called SDS40, which will allow many prisoners to walk from prison after serving 40% of their sentences. A second tranche of up to 1,700 prisoners, all jailed for more than five years, are expected to be freed in late October after the law was changed by the lord chancellor, Shabana Mahmood, to relieve pressure on overcrowded prisons....

On Monday, the government said it would launch Operation Early Dawn, a longstanding plan that means defendants waiting for a court appearance can be held in police cells for longer until prison space is available.

The emergency scheme has been announced as hundreds of rioters are jailed in the wake of unrest this summer. The director of public prosecutions has said the criminal justice system requires “considerable investment” as the jailed rioters continue to put pressure on overcrowded prisons.

There are, I surmise, lots of political and practical backstories here that have contributed to the state of UK punishment laws and practices. Here are a couple of recent press pieces that perhaps provide some useful context:

From the Financial Times, "How ‘sentencing inflation’ fuelled England’s prisons crisis"

From the New York Sun, "U.K. To Release Thousands From Overcrowded Prisons Following Surge of Arrests During Anti-Immigration Riots"

"Can Prosecutorial Declination End Overincarceration?"

The title of this post is the title of this recent article available via SSRN authored by Shima Baradaran Baughman. Here is its abstract:

We know very little about why prosecutors charge a given case, how frequently they charge, and why they decline to charge cases.  Scholars have discussed this issue despite the acknowledged “black box” around this question.  Some have recently argued that progressive prosecution has influenced prosecutors to decline more cases.  Others discuss rates of individual state and federal declination — showing high rates particularly for federal districts.  One scholar has suggested that private prosecution might be the only viable alternative to public prosecution.  Overall crime has certainly gone down in the U.S. and arrests have also dropped.  But prosecutors have not necessarily reduced charging in commensurate ways.  Given what we know about mass incarceration and prosecutors’ inordinate ability to exercise discretion in the criminal process, are prosecutors inclined to decline cases?  What might factor in their decision?

This Article focuses on the largest national field experiment on prosecutors to provide some insight to how American prosecutors might analyze and decide to charge a given case.  In some respects, the data are insightful because they take away any resource constraints or evidentiary limitations in charging a case.  The data show that prosecutors, when given the opportunity, would almost always charge a case — even when many factors indicate that they should do otherwise.  What this national data tells us about prosecutorial charging and declination may demonstrate that we have not made as much “progress” in terms of prosecution as we might have hoped. Declining to charge might never be a prosecutorial tool to end mass incarceration.

The Sentencing Project releases updated report on “Youth Justice By The Numbers”

The Sentencing Project released today this new version of a report titled, “Youth Justice By The Numbers.”  The first two sentences of this ten-page report spotlights its main themes: "Between 2000-2022, there was a 75% decline in youth incarceration. However, racial and ethnic disparities in youth incarceration and sentencing persist amidst overall decrease in youth offending." Here is how this report gets started with its "introduction":

Youth arrests and incarceration increased in the closing decades of the 20th century but have fallen sharply since.  Public opinion often lags behind these realities, wrongly assuming both that crime is perpetually increasing and that youth offending is routinely violent.  In fact, youth offending is predominantly non-violent, and the 21st century has seen significant declines in youth arrests and incarceration.  Despite positive movement on important indicators, far too many youth — disproportionately youth of color — are incarcerated.  Between 2000 and 2022, the number of youth held in juvenile justice facilities fell from 108,800 to 27,600 — a 75% decline.

"Taking Stock: Reflections on 50 Years of Crime and Punishment in America"

The title of this post is the title of this notable keynote speech delivered this week by Jeremy Travis at the annual conference of the National Criminal Justice Association. I recommend reading the speech in full, as Travis explains in the introduction that he hopes to "challenge you to think critically about the realities of crime and punishment in America so that you can help our democracy chart a new course to a more just and humane response to crime." It strikes a notably positive reform tone, and this 14-page document concludes this way:

We have much work ahead of us, but this is the time to embrace an ambitious agenda.  The American system of criminal justice stands at a crossroads. With low crime rates, public support for less punitive responses to crime, and an urgent call from the next generation to do no more harm and embrace the call for racial justice, a window of opportunity has opened.  I can think of no group of justice professionals better equipped to seize this moment.  I believe with all my heart that this is a patriotic calling.  The cause of justice, and the hopes for a vibrant multi-racial democracy, hang in the balance. It may take another fifty years, but now is always the best time to get started.

"Regarding the Other Death Penalty"

The title of this post is the title of this relatively short piece just out in the Columbia Law Review Forum and authored by Kempis Songster, Terrell Carter & Rachel López.  Here is how it starts:

In his compelling new book, Invisible Atrocities, Professor Randle DeFalco explores the function of the aesthetics of violence in international law.  In particular, he questions international law’s preference for sanctioning spectacular demonstrations of violence rather than more banal, bureaucratic actions that cause massive scales of suffering and misery.  The book resonated with us because we’ve seen the same dynamic at work in U.S. criminal law with respect to society’s views on two forms of the death penalty: capital punishment and life without parole (LWOP).

Two of us, Kempis Songster and Terrell Carter (affectionately known as Ghani and Rell), intimately understand the invisibility of the harm DeFalco describes.  Our sentence — a sentence of life without parole — was sold by the anti–death penalty movement as the more humane alternative to capital punishment.  Yet, since our miserable state of existence serving life without parole tainted a word so full as “life,” we believe that this sentence “is more aptly called death by incarceration” (DBI).  Taking inspiration from DeFalco’s book, we aim to bring visibility to the slow but fatal violence of death by incarceration.

"Still Cruel and Unusual: Extreme Sentences for Youth and Emerging Adults"

The title of this post is the title of this new Sentencing Project report authored by Ashley Nellis and Devyn Brown. The short report starts this way:

A wave of reforms since 2010 has changed the trajectory of punishment for young people by substantially limiting the use of juvenile life without parole (JLWOP) sentences. At the sentence’s height of prominence in 2012, more than 2,900 people were serving JLWOP, which provided no avenue for review or release.  Since reforms began, most sentence recipients have at least been afforded a meaningful opportunity for a parole or sentence review. More than 1,000 have come home. 

This progress is remarkable, yet thousands more who have been sentenced to similarly extreme punishments as youth have not been awarded the same opportunity.  Our analysis shows that in 2020, prisons held over 8,600 people sentenced for crimes committed when they were under 18 who were serving either life with the possibility of parole (LWP) or “virtual” life sentences of 50 years or longer.  This brief argues for extending the sentencing relief available in JLWOP cases to those serving other forms of life imprisonment for crimes committed in their youth.

In addition, The Sentencing Project has estimated that nearly two in five people sentenced to life without parole (LWOP) were 25 or younger at the time of their crime.  These emerging adults, too, deserve a meaningful opportunity for a second look because their developmental similarities with younger people reduces their culpability in criminal conduct. The evidence provided in this brief supports bold reforms for youth and emerging adults sentenced to extreme punishments.

"Research roundup: Evidence that a single day in jail causes immediate and long-lasting harms"

The title of this post is the title of this new Prison Policy Initiative briefing authored by Brian Nam-Sonenstein which carried this subtitle: "Recent research suggests the onset of pretrial detention’s criminal legal system, social, and economic harms is earlier than previously thought."  Here is how the work starts (with links from the original):

The criminal legal system views pretrial detention as a necessary sacrifice that prioritizes crime prevention and court attendance over personal liberty.  However, detention is demonstrably ineffective on both fronts: when compared to releasing people pretrial, jail counterintuitively worsens these outcomes on day one while making the system decidedly more unjust for those behind bars.  These failures come at a steep cost, as detention also immediately disrupts a person’s ability to work and increases their risk of death.  Horrendous jail conditions are only partially to blame; on a more basic level, pretrial detention’s disruptive and stigmatizing effects help explain why it fails to live up to its promises, and no amount of newer, nicer jails can change that.

Judges contemplate the risk a person poses to the community if released, but — crucially — not the risk detention poses to individuals and the community.  What are the risks of detention, how quickly do they materialize, and what might the system look like if they mattered in bail determinations?  To answer these questions, we examined recent studies that measure pretrial detention’s impact on people, particularly within the first 72 hours in jail.  Building on our investigations into pretrial detention’s role in destructive cycles of arrest and incarceration, the benefits of pretrial release, and the dangers of jail expansion, we find that there is no “safe” way to jail a person, nor is there an amount of time a person can be detained without escalating short- and long-term risks to themselves and their communities.

As we discuss below, if judges considered these harms and their implications for public safety when deciding whether to initially release or detain people, far fewer people would be jailed pretrial, shrinking the system to a tiny fraction of its current size.

After Lymon, what might be next major Michigan state constitutional ruling limiting severe punishments?

I blogged here last week on the intriguing divided Michigan Supreme Court ruling in Michigan v. Lymon, No. 164685 (Mich. July 29, 2024) (available here), which held that Michigan's state constitution precluded putting people convicted of non-sexual crimes on the state's sex-offender registry.  The Behind the Bench Newsletter features that ruling in this new posting, titled "Will The Michigan Supreme Court Ban Death By Incarceration?", which merits reading in full.  Prompting the question in the title of this post, the entry noted that there are now "at least seven cases pending" on the Michigan Supreme Court's docket "that raise claims under the 'cruel or unusual' clause" in the Michigan consituttion.  Here is an extended excerpt (with links from the original):

In another win for state constitutional rights, the Michigan Supreme Court last week held that requiring someone without any sex-related convictions to register as a sex offender — something that, remarkably, most states do to some extent —violates the state’s ban on “cruel or unusual” punishment.  Central to the ruling were both the text of Michigan’s antipunishment clause — which, with its disjunctive formulation, is broader than the federal 8th Amendment’s “cruel and unusual” prohibition — and the state’s tradition of prioritizing rehabilitation as the primary goal of criminal sentencing....

The ruling in People v. Lymon will free about 300 people from the sex offender registry.  Beyond that, it further cements the Michigan Supreme Court as a national leader in building state antipunishment jurisprudence and expanding rights against extreme and needless punishments.  And that trend should continue: There are at least seven cases pending on the court’s docket that raise claims under the “cruel or unusual” clause, all touching on a common theme: will the court further limit lifetime punishments that, contrary to the state’s long constitutional history, “forswear[] altogether the rehabilitative ideal”?...

But in 2022, the Michigan Supreme Court revived its “cruel or unusual” jurisprudence with a series of rulings that protected youth and young adults from lifelong prison terms. In People v. Parks, the court banned mandatory life without parole sentences for people 18 and younger (raising the age under federal law by one year); in other cases it banned all life sentences for youth convicted of second degree murder and specified that there is always a presumption against life without parole sentences for youth — one that prosecutors must overcome with specific evidence. In each case, Michigan’s constitutional commitment to rehabilitation was central. “Rehabilitation is a specific goal of our criminal-punishment system,” the court said in Parks. “Indeed, it is the only penological goal enshrined in our proportionality test as a criterion rooted in Michigan’s legal traditions.”  

With last week’s decision in Lymon, the court reaffirmed and built on these cases, and it’s poised to do more in the next year.  The court’s docket includes more challenges to Michigan’s draconian sex offender registration law, including claims that lifetime sex offender registration and lifetime electronic monitoring constitute “cruel or unusual” punishment.  It will also consider further limits on death-by-incarceration sentencing—a practice that is by definition incompatible with rehabilitation.  It could apply Parks retroactively, to people with final convictions, and to all people under age 21; ban all life without parole — mandatory or discretionary — for youth under 18; and ban mandatory life without parole for people convicted under the so-called “felony murder rule” — an archaic legal doctrine that allows murder convictions and the most severe punishments even when there is no intent to kill. 

Collectively, these cases could restore hope to thousands — more than 1,000 people are serving life without parole for felony murder alone.  But they also raise a question: Will the court ultimately do with one clear holding what it has started to do piecemeal?  Will it recognize that, whatever their crime or age, sending people to die in prison without even the hope of release is cruel and conflicts with fundamental state constitutional rights? This year the Massachusetts Supreme Judicial Court made history by banning all life without parole sentences for anyone under age 21. The Michigan Supreme Court could be the first to ban them entirely.

The Sentencing Project releases updated fact sheet on "Incarcerated Women and Girls"

The Sentencing Project today released this updated six-page fact sheet titled "Incarcerated Women and Girls." The document has lots of data and graphics providing details of how and why "female incarcerated population stands almost seven times higher than in 1980." I recommend the full document, and here is some of its text:

Between 1980 and 2022, the number of incarcerated women increased by more than 585%, rising from a total of 26,326 in 1980 to 180,684 in 2022. While 2020 saw a substantial downsizing due to the COVID-19 pandemic, this trend reversed with an 18% increase in 2022....

The rate at which women are incarcerated varies greatly from state to state. At the national level, including both state and federal imprisonment, 49 out of every 100,000 women were in prison in 2022. The state with the highest rate of female imprisonment is Idaho (132) and the state with the lowest incarceration rate of women is Massachusetts (7).

Women in state prisons are more likely than men to be incarcerated for a drug or property offense. Twenty-five percent of women in prison have been convicted of a drug offense, compared to 12% of men in prison; 19% of incarcerated women have been convicted of a property crime, compared to 13% among incarcerated men.

The proportion of imprisoned women convicted of a drug offense has increased from 12% in 1986 to 25% in 2021.

CCJ launches new nonpartisan national panel titled "Women’s Justice Commission"

I received a press release early this morning informing me that the Council on Criminal Justice (CCJ) today was launching a new "initiative to document and raise awareness of the distinctive needs of women in the criminal justice system and build consensus for evidence-based reforms that enhance safety, health, and justice."  Here is more from the press release (with links from the original): 

The nonpartisan national panel, the Women’s Justice Commission, is chaired by Loretta Lynch, who championed women’s justice issues as U.S. Attorney General, and includes 15 other ideologically diverse leaders representing law enforcement, legislative offices, courts, corrections, medicine, research, advocacy, and directly impacted individuals. Oklahoma First Lady Sarah Stitt, a longtime advocate for breaking generational trauma among women due to substance abuse and mental health issues, is serving as Senior Adviser. The Commission is scheduled to hold its first formal meeting today in New York City, including a visit to Brooklyn program for justice-involved women....

In conjunction with today’s meeting, the Commission released two comprehensive reports — Women's Justice: A Preliminary Assessment of Women in the Criminal Justice System and Women’s Justice: By the Numbers — that paint a statistical portrait of justice-involved women and establish a foundation for the panel’s work.  Among other findings, the reports show that: 

• Females report that they make up a larger share of violent crime victims: 51% of all violent victimizations in 2022 compared to 41% of all victimizations in 1993, the start of the data series. (This figure is drawn from the National Crime Victimization Survey; it excludes homicides and includes simple assaults.) 

• Growth in arrest rates for women (41% higher in 2019 than in 1980) is due in part to a rise in arrest rates for violent crimes (317% higher in 2019 than 1980) and drug crimes (63% higher in 2019 than 1980). 

• The incarceration rate for women in U.S. prisons and jails increased dramatically (+431%) from 1982 through 2007, and then flattened as the number of incarcerated men began to fall.  Between 2010 and 2019, the year before the COVID pandemic jolted the criminal justice system, the female jail incarceration rate went up by 12%, while the male rate fell by 10%.  As overall incarcerated populations rebounded in 2021 and 2022 after COVID-related reductions, the increase of the female populations outpaced those of men. 

• More than half of the women in state and federal prisons are parents to minor children, and an estimated three of four women in local jails are mothers.  Prior to incarceration, mothers were more than twice as likely as fathers to be the sole or primary caretaker of their children. 

• Most justice-involved women come from backgrounds of poverty and trauma, and they are more likely than justice-involved men to be victims of physical and sexual abuse, suffer severe substance use and mental health issues, and to have experienced homelessness in the year prior to incarceration. 

The production and publication of these initial documents from the CCJ are already a terrific contribution, and I will eager to see what this august new commission produces in the months and years ahead.

Intriguing criminal justice reform talk from across the pond from new UK prime minister

Realizing that, conincidently on US Independence Day, the Brisish elected a new Partiment and Prime Minister, I was epsecially intrigued by this new BBC article headlined "We have too many prisoners, says new PM Starmer." I recommend the piece in full, and here are excerpts:

Sir Keir Starmer has said he wants to reduce the number of people going to prison through renewed efforts to cut reoffending.

In his first press conference as prime minister, Sir Keir said too many people found themselves back in jail "relatively quickly" after being sent there. He added that intervening to prevent young people committing knife crime would be an early priority for his new government.

But he said there would be no "overnight solution" to prison overcrowding, adding: "We’ve got too many prisoners, not enough prisons."

It comes after he appointed a businessman as his prisons minister who has previously said only a third of prisoners should be there. James Timpson, boss of the shoe repair chain which has a policy of recruiting ex-offenders, said in an interview with Channel 4 earlier this year that "we're addicted to punishment”.

Labour, which won a landslide general election victory on Thursday, has promised to review sentencing after regaining office for the first time since 2010. It has also inherited a ballooning crisis in Britain's jails, and has already committed to keeping the previous Conservative government's early release scheme in place to ease current levels of overcrowding. Last week the Prison Governors’ Association, which represents 95% of prison governors in England and Wales, warned that jails were due to run out of space within days.

Tory ex-justice secretary Alex Chalk first announced plans to release prisoners early in October 2023. Mr Chalk, who lost his seat to the Lib Dems in the general election, told MPs at the time the "prison population is greater than it has ever been" and the UK "must use prison better". However, he added: "We must do whatever it takes to always ensure there are always enough prison places to lock up the most dangerous offenders to keep the British public safe."

Details of Labour's review are yet to be unveiled, but Mr Timpson's appointment has offered an early signal that a change of approach may be on the cards in this area. Sir Keir has appointed him a member of the House of Lords, allowing him to take up a post as prisons minister at the Ministry of Justice. The businessman told a Channel 4 podcast in February that prison was a "disaster" for around a third of prisoners, and another third "probably shouldn’t be there".

He said too many people being in prison for "far too long" was an example of "evidence being ignored because there is this sentiment around punish and punish”. "We’re addicted to sentencing, we’re addicted to punishment," he added.

Asked about his comments at a Downing Street press conference, Sir Keir did not offer a view on whether he agreed with those estimates. But he added: "We do need to be clear about the way in which we use prisons. “For so many people [who] come out of prison, they’re back in prison relatively quickly afterwards.

“That is a massive problem that we have in this country, that we do need to break." He said his party wanted to cut knife crime in particular, and cited his plan to set up a network of "youth hubs".

Sir Keir, a former lawyer, added: “I’ve sat in the back of I don’t know how many criminal courts and watched people processed through the system on an escalator to go into prison. “I’ve often reflected that many of them could have been taken out of that system earlier if they’d had support”....

Labour says it wants to create 20,000 prison places by enabling ministers to override local councils on planning decisions. But it also plans to keep in place the scheme implemented by the last government under which some lower-level offenders can be released up to 70 days early.

Sir Keir said Conservative ministers had created a "mess" by failing to build enough prisons and mismanaging the prisons budget. Defending his decision to keep the early-release scheme in place, he added: "We don’t have the prisons we need, and I can’t build a prison within 24 hours."

The latest official figures, published on Friday, put the prison population of England and Wales at 87,453 out of a "useable operational capacity" of 88,864.

For a very rough sense of American proportions, I believe Florida has a prison population over 80,000 prisons (as well as many tens of thousands more in local jail).  But Florida's overall population is roughly one third of the overallpopulation in England and Wales. In other words, Florida's incarceration rate is about three times the prison population rate getting this attention from national leadership accross the pond.

Put another way for another point of comparison, if the overall US incarceration rate was similar to the rate in England and Wales, we would expect the national US prison population to be around 450,000 persons.  In fact, it is currently amlmost three times that large, checking in these days at around 1.25 million people.  And yet I am certainly not expecting to hear from any of our national leaders anytime soon that "We have too many prisoners."

Prison Policy Initiative reports on "States of Incarceration: The Global Context 2024"

The Prison Policy Initiative (PPI) today released this new report titled "States of Incarceration: The Global Context 2024." Like many PPI reports, the data and graphics tell a husge part of the story and must be reviewed in the original. Here I will just reprint part of the starting text:

The U.S. has the highest incarceration rate of any independent democracy on earth — worse, every single state incarcerates more people per capita than most nations.  In the global context, even “progressive” U.S. states like New York and Massachusetts appear as extreme as Louisiana and Mississippi in their use of prisons and jails.

The graphic above charts the incarceration rates of every U.S. state and territory alongside those of the other nations of the world.  Looking at each state in the global context reveals that, in every part of the country, incarceration is out of step with the rest of the world.

If we imagine every state as an independent nation, as in the graph above, every state appears extreme.  While El Salvador has an incarceration rate higher than any U.S. state, nine states have the next highest incarceration rates in the world, followed by Cuba.  Overall, 25 U.S. states and three nations (El Salvador, Cuba, and Rwanda) have incarceration rates even higher than the national incarceration rate of the United States. Massachusetts, the state with the lowest incarceration rate in the nation, would rank 30th in the world with an incarceration rate higher than Iran, Colombia, and all the founding NATO nations.

In fact, many of the countries that rank alongside the least punitive U.S. states, such as Turkmenistan, Belarus, Russia, and Azerbaijan, have authoritarian or dictatorial governments, but the U.S. — the land of the free — still incarcerates more people per capita than almost every other nation. Importantly, high incarceration rates have little impact on violence and crime.

Helpful review of pending state constitutional litigation over LWOP sentencing for felony murder

This recent State Court Report entry provides a relatively short and quite helpful review of past debates and some present litigation surrounding felony murder.  The full headling of the piece serves as a useful summary: "State Supreme Courts May Abolish Life Without Parole For 'Felony Murder': People serving life in prison in Colorado, Michigan, and Pennsylvania for murder — even though they never meant to kill anyone — are arguing their sentences are unconstitutionally cruel."  I recommend the piece in full for full context, and here are some excerpts (with links from the original):

[T]he felony murder rule, long-ago abolished in England but still alive in 48 states, has persisted as one of American criminal law’s cruelest features.  Shattering norms of criminal liability, felony murder severely punishes people for deaths that they neither caused nor intended to cause, but that in some way flowed from their actions, with the connection often tenuous to the point of nonexistent....

A recent Pulitzer Prize-winning New Yorker article, for example, tells the story of a man who was miles away and handcuffed when his accomplice in some car burglaries accidentally struck and killed two cyclists as he fled from police. Yet the handcuffed man was convicted of murder and sentenced to mandatory life without parole. His obvious and undisputed distance from the killings — both geographically and with regard to his intent — reduced neither his charges nor, given its mandatory nature, his sentence....

Even more than other facets of criminal law, the rule targets the vulnerable and historically marginalized, exacerbating already deep inequities in our criminal legal system. Felony murder yields massive racial disparities, and is often wielded against people who are suffering from addiction (such as if they share drugs with a friend who overdoses), survivors of domestic abuse (including when women are coerced into criminal conduct by abusive men), and young people (who are often punished for the conduct of adults and authority figures or their friends)....

In the coming months, Colorado, Michigan, and Pennsylvania will decide [state constitutional claims] that challenge life without parole sentences for felony murder.

In Pennsylvania, 70 percent of the more than 1,100 people serving life without parole for felony murder are Black.  One of them, Derek Lee, has petitioned the Pennsylvania Supreme Court to rule that his mandatory life sentence violates the state constitution’s ban on “cruel” punishments.  Lee argues that Pennsylvania’s constitution must be construed both independently from and more broadly than the Eighth Amendment, and that the complete disconnect between felony murder and any legitimate penological purpose renders his life sentence unconstitutional.  In amicus briefings, his claim has unusually broad support from, among others, former prosecutors, the Philadelphia District Attorney’s Office, Pennsylvania Gov. Josh Shapiro, and former state Department of Corrections officials who argue that “life without parole sentences for felony murders are financially insensible” and that “many or even most lifers could be released without incident to their communities.”

Meanwhile, another man convicted of felony murder has made similar arguments to the Colorado Supreme Court, with one key addition.  In 2018, when Wayne Sellers was convicted, state law mandated a life without parole sentence.  But Colorado changed the law in 2021, and reduced the sentence for future felony murder convictions to a range of 16 to 48 years — affording both greater leniency and sentencing discretion.  The change did not apply to Sellers, who now asks the state high court to rule that his sentence is unconstitutional.  During oral arguments [last week], some justices appeared hesitant to “substitute [their] judgment for the legislature[’s]” — despite the court’s previous acknowledgment that sentencing reforms are a key indicator of the state’s evolving standards of decency that are central to a constitutional excessive punishment claim.

Finally, the Michigan Supreme Court — which recently surpassed federal case law to prohibit mandatory life without parole sentences for 18 year olds — has asked for briefs on whether “mandatory life without parole for felony murder” violates the state constitutional ban on cruel or unusual punishments.  That case is brought by Edwin Langston, a now-elderly man who in 1976 was held responsible for a murder committed by someone else during a robbery, and for which Langston was not even present.

There remain strong arguments that the Eighth Amendment forbids consigning people to die in prison based on felony murder convictions, even if the current U.S. Supreme Court majority is unlikely to embrace them.  But state constitutional law provides a path to justice that doesn’t require reconciling inconsistent and flawed precedent upholding extreme prison terms for modest crimes.  State supreme courts that take their constitutional obligations seriously should do what both common decency and the law demands: ban life without parole for felony murder.

The Sentencing Project releases report titled "Incarceration and Crime: A Weak Relationship"

The Sentencing Project this morning released this new 18-page research brief titled “Incarceration & Crime: A Weak Relationship.” The report assembles a variety of data and research in keeping with the report's thesis that there is only a weak relationship between incarceration and crime.  Here are a couple of passages from the body of the report:

Scholars examining state imprisonment trends during the period of extreme growth conclude that incarceration contributed only modestly to the crime drop.  They find that in the 1990s mass incarceration accounted for as much as 35% or as little as 6% of the crime drop.  These estimates depend on the type of crime under investigation as well as the methodology and assumptions used by analysts.  Since the turn of the century, mass incarceration appears to have made almost no contribution to the crime drop.  Reviewing the four-decade period when incarceration levels increased without any consistent relationship with crime rates, the National Research Council has concluded that “the increase in incarceration may have caused a decrease in crime, but the magnitude of the reduction is highly uncertain and the results of most studies suggest it was unlikely to have been large.”...

As some lawmakers pivot to widen the reach of the criminal legal system in response to public concern, recent state trends illustrate that less imprisonment often happens alongside improvements to community safety.  Over a nine year period (2013-2022), 46 states reduced the footprint of their prison population while experiencing crime declines.  In some states, these declines were substantial.

BJS releases small accounting with "Preliminary Data Release - Jails (2023)"

THe Bureau of Justice Statistics sent me a couple emails today making sure I saw it published online here its latest data on jail populations in the US.  Here is the text that starts the report:

The Bureau of Justice Statistics provides key jail statistics prior to release of the annual jails report.  The statistics below include the number of persons held in local jails, by inmate demographics and conviction status; the number of admissions to jail; and jail incarceration rates, from 2013 to 2023.

Statistics from 2023, the latest data year, are preliminary and may be updated once BJS publishes the final data in Jail Inmates in 2023 – Statistical Tables, which is scheduled for release in late 2024.  

Key findings

• At midyear 2023, local jails held 664,200 persons in custody, similar to the year before (663,100).
• Jails reported 7.6 million admissions from July 1, 2022 to June 30, 2023.  While this represents a 4% increase over the 7.3 million admissions the year before, annual admissions were 35% lower than 10 years ago (11.7 million).
• Local jails held 95,100 females at midyear 2023, accounting for 14% of the confined population.
• At midyear 2023, 70% of the jail population (467,600) was unconvicted and awaiting court action on a current charge or being held in jail for other reasons.  The remaining 30% (196,600) was convicted and either serving a sentence or awaiting sentencing on a conviction.

US Sentencing Commission starts releasing latest "Quick Facts" publications

I noticed that the US Sentencing Commission has started releasing a new set of its terrific "Quick Facts" publications with updates drawing on the USSC's full fiscal year 2023 data.  Long-time readers have long heard me praise the USSC for producing these convenient and informative short data documents, which are designed to "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format." Here are the newesr postings by the USSC on the "Quick Facts" page:

Offender Groups

• NEW Individuals in the Federal Bureau of Prisons (May 2024)
• NEW Career Offenders (May 2024)

Drugs

• NEW Drug Trafficking (May 2024)
• NEW Methamphetamine Trafficking (May 2024)
• NEW Fentanyl Trafficking (May 2024)
• NEW Fentanyl Analogue Trafficking (May 2024)

There are any number of interesting factual nuggets in these documents that are fascinating, but I continue to be struck by how much of the federal caseload (and federal prison population) is consumed by drug cases and especially methamphetamine and various opioid. Crack cocaine and marijuana cases, which have long garnered so much attention, are now just a tiny piece of an otherwise still large federal drug war reality.

"Can State Supreme Courts Preserve — or Expand — Rights?"

The title of this post is the title of this very lengthy new New Yorker piece by Eyal Press.  The subtitle highlights its themes: "With a lopsided conservative majority on the U.S. Supreme Court, progressive activists are seeking legal opportunities in state constitutions."  Though covering lots of legal areas, the article discusses Eighth Amendment issues at various points.  Here is one excerpt of a piece worth reading in full:  

Between sessions at the N.Y.U. symposium [on state constitutional law], I went to a café to meet Kyle Barry, an advocate who hopes that a similar pattern might play out in the movement for criminal-justice reform.  Barry came to the conference from San Francisco, where he directs the State Law Research Initiative, a nonprofit organization whose mission is to limit extreme sentences and address inhumane prison conditions by strengthening state-constitutional rights.  Criminal-justice scholars have traditionally framed mass incarceration as a national phenomenon driven by such harsh federal legislation as the 1994 crime bill.  But, as the authors of a recent Iowa Law Review article note, “ninety percent of people confined in U.S. prisons are confined under state laws.”  Given this, the authors ask why state courts have been “missing from the debate” about how to curb excessive punishment regimes.

Barry’s organization hopes to address this gap.  He told me that state litigation was especially urgent because the Supreme Court has “completely abdicated” enforcing constitutional rights in the criminal-justice system, rubber-stamping extreme sentences that many other countries prohibit.  In most of Europe, he noted, the sentence of life without parole is unheard of.  In 2022, Canada’s Supreme Court ruled unanimously that such sentences were cruel and unconstitutional for offenders of any age.  In the U.S., as of 2020, sixty thousand people were serving what Barry calls “death in prison” sentences — more than in the rest of the world combined.  Although the Miller ruling forbade mandatory impositions of life without parole for juveniles, it didn’t ban them altogether.  And a more recent Supreme Court opinion, Jones v. Mississippi, written by Justice Brett Kavanaugh, relieved judges of having to establish that a juvenile is “permanently incorrigible” before issuing such a sentence.

In a scathing op-ed in the Washington Post, the legal scholar John Pfaff argued that the Jones ruling demonstrated that America was willing “to throw lives away.”  Yet Barry told me that he felt optimistic about the possibilities for state reform, naming Michigan, in addition to Washington, as a place where a high court had recently extended Miller to young adults.  Lauren McLane, the law professor fighting to reduce the sentence of Christopher Hicks, joined us at the café, dressed in a gray University of Wyoming sweatshirt. McLane and Barry had first communicated a few weeks earlier, after she’d read comments that he’d made on a Listserv about Commonwealth v. Mattis, a case in which the Supreme Judicial Court of Massachusetts banned life without parole for “emerging adults” — defined as anyone between eighteen and twenty-one.  The ruling, which was made in January, cited the ban on “cruel or unusual punishment” in the Massachusetts constitution, and also the principle that Eighth Amendment jurisprudence should be informed by “the evolving standards of decency that mark the progress of a maturing society” — a standard that the U.S. Supreme Court itself has endorsed.

BJS releases two big new (and dated) reports on 2022 correctional populations and probation/parole populations

Via email, I learned that the Justcie Department's Bureau of Justice Statistics today released these two big new data reports: "Correctional Populations in the United States, 2022 – Statistical Tables" and "Probation and Parole in the United States, 2022." Here is how BJS describes these reports:

[The correctional populations] report summarizes data on populations supervised by probation or parole agencies and those incarcerated in state or federal prisons or in the custody of local jails from 2012 to 2022. It also includes tables on sex and race or ethnicity of persons supervised by correctional systems. BJS has published statistics on correctional populations since 1985....

[The probation and parole] report provides data on adult U.S. residents under correctional supervision in the community. It includes characteristics of this population, such as sex, race or ethnicity, and most serious offense. The report details how people move onto and off community supervision, such as completing their term of supervision, being incarcerated, absconding, or other unsatisfactory outcomes while in the community. It is the 31st in a series that began in 1981.

Though it is alwaus a bit disappointing that these great data reports are already nearly 18 months behind present day realities, the BJS always deserves thanks for the great, rigorous job it does collecting and publishing these complicated data.

"Hidden Takings and the Communal Burden of Punishment"

The title of this post is the title of this new paper available on SSRN authored by G. Alex Sinha and Janani Umamaheswar.  Here is its abstract:

The American criminal legal system is notorious for subjecting those it imprisons to harsh conditions of confinement. Legal scholars are well aware of this feature of the system, and they contend regularly with its implications.  Unlike criminologists and other social scientists, however, legal scholars are much less engaged with the significance of harsh conditions of confinement for people outside the system.  Perhaps this is not surprising.  The legal implications of conditions of confinement might seem generally restricted to the people confined.  We argue to the contrary.  More specifically, we claim that harsh conditions of confinement in the American criminal legal system may violate the constitutional rights of free people in the community — specifically, the families of incarcerated people.  To make this argument, we draw on eight months of observations of a support group for family members of incarcerated people, along with 27 in-depth interviews with such family members.  We marshal their narratives to illuminate the challenges that family members face in ensuring their incarcerated loved ones’ access to necessities, like nutrition, physical safety, and post-release housing.

We find that, in the face of governmental neglect of imprisoned populations, family members experience genuine coercion to contribute money and labor to backstop the state’s carceral burden.  In doing so, they become critical to the attainment of broadly beneficial objectives of the system, like desistance from crime and successful reintegration upon release.  We translate the narratives of these participants into constitutional language, concluding that they are experiencing takings that should be cognizable under the Fifth Amendment’s Takings Clause.  The Takings Clause provides that “private property [shall not] be taken for public use, without just compensation.”  But unlike traditional or regulatory takings, the extraction of property from the loved ones of incarcerated people occurs under extreme social or moral pressure rather than pursuant to legal directives.  To capture the experience of the participants in this study, we therefore introduce and defend the concept of “hidden takings” — certain governmental seizures of private property that are effected by subjecting property owners to excessively coercive, extra-legal pressure. We then show that hidden takings fit comfortably both within the current caselaw on takings, as well as within numerous and varied theoretical accounts of what takings law should achieve.  In some respects, in fact, the case for recognizing hidden takings is stronger than the case for recognizing traditional or regulatory ones.  Notably, we find that both originalist and critical perspectives are also conducive to acknowledging hidden takings.

"Punishing Gender"

The title of this post is the title of this new article by Erin Collins now available via SSRN. Here is its abstract:

As jurisdictions across the country grapple with the urgent need to redress the impact of mass incarceration, there has been a renewed interest in reforms that reduce the harms punishment inflicts on women.  These “gender-responsive” reforms aim to adapt traditional punishment practices that, proponents claim, were designed “for men.”  The push to change how we punish based on gender, while perhaps well intentioned, is misguided.  As abolition feminist principles reveal, these gender- responsive practices not only reify traditional gender norms, but also strengthen the operation of the carceral state.  This Article catalogs the ways that the gender-responsive approach currently influences various decisions about criminal punishment, including about the length, location, and type of punishment one receives.  Then, it provides an abolition feminist critique of how we “punish gender” and concludes that these efforts to treat some people better than others ultimately lead to a system that is worse for all.

The Sentencing Project releases updated report on "Mass Incarceration Trends"

The Sentencing Project has today released this new 19-page document titled "Mass Incarceration Trends."  The report is full of data and visuals covering topic ranging from "Mass Incarceration’s Reach" to "Probation and Parole" to "Life and Long-Term Imprisonment" to "Voting Rights" to lots of topics in between.  Here is a small portion of the report's first section:

The United States is unparalleled historically and ranks among the highest worldwide in its dependence on incarceration.  Over five million people in total are under supervision by the criminal legal system.  Of these, nearly two million people, disproportionately Black, are living in prisons and jails instead of their communities.  Compare this to the figures of the early 1970s when this count was 360,000....

In 1972, the imprisonment rate was 93 per 100,000 people.  The prison population expansion that commenced in 1973 reached its peak in 2009, achieving a seven-fold increase over the intervening years.  Between 1985 and 1995 alone, the total prison population grew an average of eight percent annually.  And between 1990 and 1995, all states, with the exception of Maine, substantially increased their prison populations, from 13% in South Carolina to as high as 130% in Texas.  The federal system grew 53% larger during this five-year period alone.

The number of people in prison began a marginal decline beginning in 201013 and continued along this course for more than a decade, including a remarkable 14% decline in 2020 alone, which was principally caused by accelerated releases and reduced admissions during the first year of the COVID-19 pandemic.  The year 2022, however, marked the first year in more than a decade where the prison population rose again, by two percent, led by increases in 36 states and the federal government.  Mississippi alone raised its population of imprisoned persons 15% between 2021 and 2022.

New report from Campaign for the Fair Sentencing of Youth details the state of juvenile LWOP sentences in the US

Via email, I learned of this new report from the Campaign for the Fair Sentencing of Youth titled "Unusual & Unequal: The Unfinished Business of Ending Life Without Parole for Children in the United States."  Because this group advocates for the abolition of juvenille LWOP sentences, this report primarily laments that there are still a few hundred persons convicted as juveniles serving this sentence, though it notes the fact that "over the past decade, ... the population of [juvenile offenders] serving [an LWOP] sentence decreas[ed] by 85%."  

The report include a lot of data about juve LWOP laws and the (re)sentencing of many offenders in the wake of the Supreme Court's major Eighth Amendment rulings in Miller and Montgomery.  I recommend the short report to anyone eager to understand the current state of juvenile LWOP sentencing.  The report concludes with the kind of advocacy that has been a hallmark of the Campaign for the Fair Sentencing of Youth:

A concentration of a few states have unevenly complied with Miller and the possibility of resentencing provided by Montgomery.  Some have refused to comply at all.

This uneven implementation of the Miller decision has a particularly profound impact on racial disparities among those serving JLWOP.  An analysis of those deemed worth protecting from JLWOP and those deemed fit for the sentence suggests that as long as JLWOP remains a sentencing option, it will be imposed in ways that produce arbitrary and racially discriminatory outcomes.  It will also be leveraged to legitimize the extreme sentences of children in other forms, that still fail to consider their unique capacity for positive change.

Miller and the ensuing procedures guiding JLWOP imposition have not been sufficient guardrails to combat these risks. States must go further to address these inequalities and recognize what science and common sense have clearly demonstrated: that children are categorically different from adults, less culpable, and should be provided opportunities to demonstrate their tremendous potential for positive growth and change.

"Electronic Prison: A Just Path to Decarceration"

The title of this post is the title of this new paper authored by Paul Robinson and Jeffrey Seaman now available via SSRN. Here is its abstract:

The decarceration movement enjoys enthusiastic support from many academics and activists who point out imprisonment’s failure to rehabilitate and its potential criminogenic effects.  At the same time, many fiscal conservatives and taxpayer groups are critical of imprisonment’s high costs and supportive of finding cheaper alternatives.  Yet, despite this widespread support, the decarceration movement has made little real progress at getting offenders out of prison, in large part because community views, and thus political officials, are strongly committed to the importance of doing justice — giving offenders the punishment they deserve — and decarceration is commonly seen as inconsistent with that nonnegotiable principle.  Indeed, almost no one in the decarceration movement has attempted to formulate a large-scale decarceration plan that still provides for what the community would see as just punishment.

In this Article, we offer just such a plan by demonstrating that it is entirely possible to avoid the incarceration of most offenders through utilizing non-incarcerative sanctions that can carry a total punitive effect comparable to physical prison.  New technologies allow for imposing “electronic prison” sentences where authorities can monitor, control, and punish offenders in a cheaper and less damaging way than physical prison while still doing justice.  Further, the monitoring conditions provided in electronic prison allow for the imposition of a wide array of other non-incarcerative sanctions that were previously difficult or impossible to enforce.  Even while it justly punishes, electronic prison can dramatically increase an offender’s opportunities for training, treatment, education, and rehabilitation while avoiding the problems of unsupported families, socialization to criminality, and problematic reentry after physical incarceration.  And, from a public safety standpoint, electronic prison can reduce recidivism by eliminating the criminogenic effect of incarceration and also provides longer-term monitoring of offenders than an equivalently punitive shorter term of physical imprisonment.  Of course, one can imagine a variety of objections to an electronic prison system, ranging from claims it violates an offender’s rights to fears it may widen the net of carceral control. The Article provides a response to each.

Electronic prison is one of those rare policy proposals that should garner support from across the political spectrum due to effectively addressing the complaints against America’s incarceration system lodged by voices on the left, right, and center.  Whether one’s primary concern is decarcerating prisoners and providing offenders with needed treatment, training, counseling, and education, or one’s concern is reducing crime, imposing deserved punishment, or simply reducing government expenditures, implementing an electronic prison system would provide a dramatic improvement over America’s current incarceration policies.

"What Is a Prison?"

The title of this post is the title of this new book review authored by one of my Ohio State colleagues, Grace Li, now available via SSRN. Here is its abstract:

Tommie Shelby’s 2022 book The Idea of Prison Abolition sets out to compile and rearticulate the arguments for and against prison abolition -- using Angela Davis's works as the sole source texts.  In considering the arguments, he concludes that it is not necessary to abolish prisons and instead endorses reform.

In this book review, I argue that Shelby’s most helpful contribution in the book is not his analysis of whether prisons should be abolished but rather his elemental definition of incarceration.  To know what to abolish and when we have abolished it, we need to define what we mean by "prison."  I evaluate and extend his definition by culling some elements, such that the remaining elements are: "involuntary confinement," "in an enclosed space," "away from the general public;" and adding an element, "for a continuous amount of time."  I also add to these elements a list of harms that imprisonment inevitably causes.

"The Secret History of the Carceral State"

The title of this post is the title of this new article authored by Laura Appleman recently posted to SSRN. Here is its abstract:

Profits have long played a critical role in the administration of punishment in America.  This Article provides one of the first full-length historical accounts of how the pursuit of private profits has shaped the American carceral system over time. It argues that deriving profits from punishment has been a crucial and formative aspect of American carcerality since our earliest days.  Although most scholars have focused on convict leasing in the postbellum era as the first major example of private prison profiteering, this Article shows how a predatory for-profit system of punishment well predates this, originating in the colonial era. The story of American corrections, fully told, reveals four distinct transformative periods over the nearly five-century evolution of American incarceration, ultimately explaining the condition of today’s carceral state.

In addition to providing a broader and more complete historical perspective, this Article also explains how the most recent inroads of privatized, for-profit correctional entities have overtaken the contemporary workings of the carceral system, causing chaos, abuse, and death.  The Article details the mechanisms through which seeking profits from incarceration has led to objectively worse conditions and outcomes for the punished.  Given the now widespread privatization and corporate takeover of so many aspects of the carceral state, from healthcare to food services and beyond, it is well past time to question the role of “Big Capital.”  This Article shines a light on the forgotten history of the American carceral crisis, tracing the role of profits from colonial days to the 21st century.

Latest accounting of Jan 6 prosecutions and sentences

The Supreme Court heard oral argument today in Fischer v. US to consider the reach of a federal criminal statute used to prosecute some of the January 6 Capitol rioters.  Press reports suggest a number of the Justices were skeptical of how the Justice Department was seeking to apply federal criminal law.  I hope to comment on this front after I have a chance to listen to the oral argument.  In the meantine, the Washington Post has this new article with an up-to-date accounting of just how many persons have been subject to prosecution thanks to the events of Januarry 6.  Here are excerpts:

The investigation of the Jan. 6, 2021, Capitol attack is already the largest criminal inquiry in Justice Department history, federal prosecutors have said. And even after more than three years, it has shown little sign of slowing down.

Every week, a few more rioters are arrested and charges against them are unsealed in Federal District Court in Washington. Prosecutors have suggested that a total of 2,000 or 2,500 people could ultimately face indictment for their roles in the attack.

More than 1,380 people had been charged in connection with the attack as of early this month, according to the Justice Department. Among the most common charges brought against them are two misdemeanors: illegal parading inside the Capitol and entering and remaining in a restricted federal area, a type of trespassing.

About 350 rioters have been accused of violating the obstruction statute that the Supreme Court is considering at its hearing, and nearly 500 people have been charged with assaulting police officers. Many rioters have been charged with multiple crimes, the most serious of which so far has been seditious conspiracy.

Almost 800 defendants have already pleaded guilty; about 250 of them have done so to felony charges. Prosecutors have won the vast majority of the cases that have gone to trial: More than 150 defendants have been convicted at trial and only two have been fully acquitted.

More than 850 people have been sentenced so far, and about 520 have received at least some time in prison. The stiffest penalties have been handed down to the former leaders of the Proud Boys and Oath Keepers, far-right extremist groups that played central roles in the Capitol attack.

Prison Policy Initiative releases new briefing with new data and visuals on modern jail growth

Emily Widra of the Prison Policy Initiative has authored tbis new briefing titled "New data and visualizations spotlight states’ reliance on excessive jailing."  The subtitle provides context: "We've updated the data tables and graphics from our 2017 report to show just how little has changed in our nation's overuse of jails: too many people are locked up in jails, most detained pretrial and many of them are not even under local jurisdiction."   Here is how the report starts (with links from the original, but footnotes omitted):

One out of every three people behind bars is being held in a local jail, yet jails get almost none of the attention that prisons do. In 2017, we published an in-depth analysis of local jail populations in each state: Era of Mass Expansion: Why State Officials Should Fight Jail Growth. We paid particular attention to the various drivers of jail incarceration — including pretrial practices and holding people in local jails for state and federal authorities — and we explained how jails impact our entire criminal legal system and millions of lives every year. In the years since that publication, many states have passed reforms aimed at reducing jail populations, but we still see the same trends playing out: too many people are confined in local jails, and the reasons for their confinement do not justify the overwhelming costs of our nation’s reliance on excessive jailing.

People cycle through local jails more than 7 million times each year and they are generally held there for brief, but life-altering, periods of time. Most are released in a few hours or days after their arrest, but others are held for months or years, often because they are too poor to make bail. Fewer than one-third of the 663,100 people in jails on a given day have been convicted and are likely serving short sentences of less than a year, most often for misdemeanors.  Jail policy is therefore in large part about how people who are legally innocent are treated, and how policymakers think our criminal legal system should respond to low-level offenses.

New study highlights appellate reversals of excessive sentences in New York

This lengthy Law360 article, headlined "Study Shines Light On Excessive NY Prison Sentences," reports on an interesting recent student about sentencing reversals in New York.  Here are excerpts:

A recent report shining a light on excessive felony prison sentences handed down by more than 140 trial judges in New York over a 16-year period has experts and advocacy groups calling for increased transparency to help ensure that courts are imposing fair penalties on criminal defendants in the Empire State.

The study by judicial accountability nonprofit Scrutinize, in partnership with the New York University School of Law's Center on Race, Inequality, and the Law, found that at least 140 trial judges in the state imposed prison sentences that were later deemed excessive on intermediary criminal appeal.  Of those, 65 judges saw sentencing decisions overturned on more than one occasion.  The 12 judges with five or more excessive sentence findings, meanwhile, had their sentences reduced by a total of 1,246 years.

The organizations urged the state judiciary to release sentencing data for individual judges that are currently not public, information they said could reveal patterns of oversentencing, and to publish an annual report summarizing excessive sentence findings to keep track of those trends....

According to the study, which looked at cases originating from the five counties of New York City and Nassau, Suffolk, Westchester, Orange, Rockland, Dutchess, and Putnam counties, two judges, Edward J. McLaughlin and Vincent Del Giudice, had a total of 39 excessive sentence findings combined, with the appellate court cutting a total of 684.5 years from the sentences they imposed. Justice McLaughlin, who presided over criminal matters in Manhattan, is now retired. Justice Del Giudice still hears criminal cases in Brooklyn.

According to the report, between 2014 and 2022, an average of 19,930 felony cases each year ended with a conviction after a guilty plea or a jury trial verdict.  In 2022, felony dispositions were nearly 15,800, but there were only about 1,100 appeals filed.  And, as acknowledged by the report's authors themselves, only a fraction — about 4% — of felony sentences are reduced for excessiveness on appeal.  That means that looking at overruled sentences provides an incomplete picture of judges' carceral attitudes.

The full study, which is titled "Excessive Sentencers: Using Appellate Decisions to Enhance Judicial Transparency," is available at this link. Here is its executive summary:

Increased focus on state judiciaries has significant potential to improve the criminal legal system.  Recognizing the need for evaluation metrics for judges, this report pioneers a data-driven, evidence-based approach to assessing the judiciary.  We analyze written appellate decisions to quantify individual trial court judges' decisions and impacts.  This methodology transforms complex judicial texts into accessible data, creating metrics of judicial performance for use by policymakers and the public.

This report introduces ‘excessive sentence findings’ as a method to assess individual judges’ decisions and their impact.  In New York, appellate courts review sentences for excessiveness and can reduce them in the “interest of justice,” a rare and clear signal — from highly-respected institutional actors — that a lower court judge made an exceptionally troubling choice.  We identify lower court judges with sentences reduced by appellate courts for being excessive and calculate the total number of years reduced from those sentences.

The study reveals patterns of repeated excessive sentencing by a number of specific judges, raising questions about judicial accountability in New York.

"State Sentencing Reforms Had Little Impact on Racial Disparities in Imprisonment, Analysis Finds"

The title of this post is the the title of this new press release from the Council on Criminal Justice (CCJ) discussing the latest findings of research it has been conducting looking at incarceration disparities.  Here is part of the press release, with lnks from the original providing access to the underlying research:

The Black-White disparity in imprisonment has narrowed substantially over the past 20 years but very little of the progress can be attributed to state sentencing reforms, according to a series of reports released today by the Council on Criminal Justice (CCJ).

Following on previous analyses that documented a 40% drop in the Black-White imprisonment disparity between 2000 and 2020, researchers at CCJ, Georgia State University, and the Crime and Justice Institute examined more than 700 statutes adopted in 12 states between 2010 and 2020, seeking to understand how sentencing reforms might have influenced the reduction.  Laws included for study related to violent, property, and drug crimes, as well as parole release and technical violation practices.  The study states (Arizona, California, Colorado, Florida, Georgia, Illinois, New York, North Dakota, Pennsylvania, South Carolina, Texas, and Utah) varied by region, demographic composition, sentencing structure, and the political party in power.

With minor exceptions, the analysis found that the sentencing reforms had negligible impacts on reducing racial disparities, and instead largely codified changes to enforcement, policing, charging, and sentencing practices that had occurred before the laws were enacted. In addition, many sentencing law changes that took effect during the study period addressed fairly infrequent crimes and therefore had a minimal effect on disparity. 

The findings suggest that factors beyond sentencing laws were mostly responsible for the Black-White imprisonment disparity declining from 8.2-to-1 in 2000 to 4.9-to-1 in 2020. Though the study did not statistically assess alternative explanations, the authors offered several other possible reasons for the shrinking disparity, including changes in policing practices, drug use (from cocaine to opioids), how drugs are sold (from open-air markets to the use of GPS-equipped smartphones), and the types of crimes people commit (from burglary to cybercrime, for example)....

The 12-state analysis is part of a sweeping package on racial disparities released by CCJ’s Pushing Toward Parity project. It includes an in-depth look at the legislative changes in each of the 12 study states as well as two reports examining disparities in imprisonment through other lenses.

One analysis examined state imprisonment disparities between Hispanic and non-Hispanic White people.  It found that disparity in imprisonment rates declined during the first two decades of the century, but that the precise size of the drop is unclear because of a conflict between data sources. In 2020, data collected from state corrections departments showed a Hispanic-White disparity ratio of 1.5-to-1; data from a federal prison survey, however, produced a ratio that was 2.7-to-1, or 80% larger. 

The gap in disparity ratios derived from each source has increased over time.  In 2000, the two disparity ratios were roughly equivalent, but by 2020 the federal data disparity ratio was 80% larger.  The measurement gap stems from how race and ethnicity are recorded and classified in each source.  The choice of measurement method makes a large difference in the projected achievement of parity: if current trends continue, the Hispanic-White disparity measure drawn from state data would reach parity by about 2026, while the measure from federal data would reach parity about 30 years later.

Another analysis focused on disparities in female prison populations. It found that state imprisonment disparity between Black and White women fell by 71% between 2000 and 2020, decreasing from 6.3-to-1 to 1.8-to-1 and exceeding the drop for men.  The decline was driven by a 56% decline in the imprisonment rate for Black women and a 57% increase for White women.  Hispanic-White female imprisonment rate disparity also fell (by 56%) over the two-decade period, data from state corrections departments showed; it has been at or below parity since 2010 and reached 0.7-to-1 in 2020, meaning that White women were more likely to be imprisoned than Hispanic women.

Female imprisonment disparity fell across violent, property, and drug offense categories, with the largest drop recorded for drug crimes.  From 2000 to 2020, Black-White drug offense imprisonment disparity among women dropped from 8 to 0.6, reaching parity in 2016.  Hispanic-White drug offense imprisonment disparity fell from 2.4 in 2000 to 0.5 in 2020. Changes in the demographic composition of prison admissions drove the trends.  From 2000 to 2019, admissions decreased 47% for Black females, increased 15% for Hispanic females, and rose 138% for White females. 

"How to Reform Correctional Mental Health Care"

The title of this post is the title of this new report authored by Stephen Eide of the Manhattan Institute.  Here the report's executive summary:

“Trans-institutionalization” refers to the shift of seriously mentally ill adults from the care of psychiatric institutions to correctional institutions.  Beginning in the 1950s, public mental health agencies have pursued the deinstitutionalization of the seriously mentally ill.  These government agencies intended to meet that goal through creating a system of community-based care to replace the asylum-based systems.  Deinstitutionalization did not succeed as planned.  Consequently, jails and prisons became the custodians of hundreds of thousands of seriously mentally ill adults who in previous eras would have been committed to an asylum.

Some dispute the magnitude of trans-institutionalization.  But no one denies the high rate of serious mental illness among the incarcerated, or that jails and prisons are poor settings in which to treat serious mental illness. Correctional mental health care now stands as one of the most important mental health care systems in the nation. Jails and prisons are legally obligated to serve the seriously mentally ill, whereas community-based systems are not. More effective community-based mental health remains an important goal to pursue.  But equally important is the reform of corrections-based systems.  Better correctional mental health care systems will benefit both community systems and the seriously mentally ill themselves.

This report will explain how corrections-based systems function.  It will place those systems in the context of debates around “jail abolition,” explain their workforce and financial challenges, and recommend the following reforms:

1. State governments should assume more responsibility for funding jail-based mental health care.
2. Correctional mental health systems have special responsibility to the seriously mentally ill and are justified in targeting resources accordingly.
3. Collect, keep, and report better data.
4. Repeal Medicaid’s Institution for Mental Diseases (IMD) exclusion.
5. Correctional institutions should make more use of long-acting injectables during discharge.
6. Eliminate overuse of administrative segregation (solitary confinement); do not abolish it.
7. Do not use telehealth when reliance on onsite clinical staff is feasible.

"Excessive Punishment: How the Justice System Creates Mass Incarceration"

The title of this post is the title of this new book edited by Lauren-Brooke Eisen and published this month by Columbia University Press. Eisen is Justice Program Senior Director at the Brennan Center for Justice, and this Brennan Center webpage provides this overview of the book:

Excessive Punishment contains 38 essays, by 45 contributors — practitioners, activists, academics, and thought leaders — who contributed their critical voices to highlighting the harms of the status quo and providing valuable insight into how we can move toward a criminal legal system that is smaller, more effective, and more humane.

The United States has by far the world’s largest population of incarcerated people. More than a million Americans are imprisoned; hundreds of thousands more are held in jails. This vast system has doled out punishment — particularly to people from marginalized groups — on an unfathomable scale. At the same time, it has manifestly failed to secure public safety, instead perpetuating inequalities and recidivism. Why does the United States see punishment as the main response to social harm, and what are the alternatives?

This book brings together essays by scholars, practitioners, activists, and writers, including incarcerated and formerly incarcerated people, to explore the harms of this punitive approach.  The chapters address a range of issues, from policing to prosecution, and from how people are treated in prison to the consequences of a criminal conviction.  Together, they consider a common theme: we cannot reduce our dependence on mass incarceration until we confront our impulse to punish in ways that are excessive, often wildly disproportionate to the harm caused.

Essays trace how a maze of local, state, and federal agencies have contributed to mass incarceration and deterred attempts at reform.  They shed light on how the excesses of America’s criminal legal system are entwined with poverty, racism, and the legacy of slavery.  A wide-ranging and powerful look at the failures of the status quo, Excessive Punishment also considers how to reimagine the justice system to support restoration instead of retribution.

Various takes on how much time Sam Bankman-Fried will likely serve on his 25-year federal prison sentence

The federal sentencing of FTX founder Sam Bankman-Fried to 25 years in prison for his frauds last Thursday has already generated a lot of discussion in blog comments, in various podcasts and in numerous press pieces.  I have a number of commentaries worth checking out (and worth skipping), but I have found especially interesting some pieces exploring the question in the headline of this Fast Company article, "How much jail time will Sam Bankman-Fried actually serve?"  Here are a few other pieces in the genre:

From Bitrades, "SBF Will Likely Serve Less Than His Full 25-Year Sentence"

From Business Insider, "Sam Bankman-Fried could go to a low-security prison and get out early if he plays his cards right, prison consultants say"

From Decrypt, "SBF Sentenced to 25 Years in Prison — How Many Will He Actually Serve?"

From the New York Post, "Sam Bankman-Fried was sentenced to 25 years in prison — but how much will he actually serve?"

These pieces generally do a reasonable job explaining that SBF will get credit for the nearly eight months he has already been in jail, and also will likely get 15% off for "good time" credit, and also can get "earned time" credits thanks to the FIRST STEP Act.  But the cummulative impact of all these potential credits has clearly been added up differently by different folks as reported in the Bitrades article: "Some experts believe Sam Bankman-Fried could spend between 12.5 and 18.5 years in prison for his crimes at FTX."

Determining precisely how much time SBF "will serve" is challenging in part because the bulk of "earned time" credits from the FIRST STEP Act that he might accrue will not formally reduce his sentence, but will allow his earlier transfer from prison into home confinement.  (The USSC recently created this helpful page about "earned time" credits.)  If SBF were to leave prison, say, after 14 years, but then must be in home confinement for the next four, one perhaps could claim he "will serve" either 14 years or 18 years.  In the end, I suspect most people focus primarily on SBF's actual time spent in federal prison (and there surely will be more press about SBF leaving prison (likley in the late 2030s) than about the official end of his term (likely some time in the early 2040s).

I sense that the entire federal sentencing and correction system is still adjusting to the new realities in time "served" created by the FIRST STEP Act.  And for another SBF-inspired take on how the FSA now alters certain notions of equality in sentencing, Eric Fish has this new Hill commentary headlined "Why is Sam Bankman-Fried treated more leniently than someone facing illegal immigration charges?"

Prior related posts:

• You be the judge: what federal sentence for Sam Bankman-Fried after guilty verdict on seven criminal fraud counts? 
• Some early chatter and speculation about Sam Bankman-Fried's coming federal sentencing 
• Should a bounce in crypto markets mean a much lower federal sentence for Sam Bankman-Fried? 
• Lawyers for Sam Bankman-Fried in lengthy memo request "a sentence that returns Sam promptly to a productive role in society"
• Some notable developments and commentary on Sam Bankman-Fried's coming sentencing
• Feds argue in sentencing memo that "legitimate purposes of punishment require a sentence of 40 to 50 years’ imprisonment" for Sam Bankman-Fried
• Rounding up a few sentencing speculations a few days before Sam Bankman-Fried's sentencing
• Sam Bankman-Fried sentenced to 25 years in federal prison for his FTX frauds 

"Shocking Sentences"

The title of this post is the title of this new article authored by John B. Meixner Jr. now available via SSRN. Here is its abstract:

Harsh recidivist sentencing penalties, like three-strikes laws, have been criticized heavily among both academics and practitioners on a number of different grounds.  Most arguments focus on how sentences arising from these penalties are disproportionate — that there is no sensible relationship between the wrong committed and the sentence imposed. Those critiques are valid, but there’s another important problem with recidivist sentencing penalties that has been overlooked: they lead to sentences that are totally unexpected — indeed, shocking — to the defendants who face them. Many recidivist sentencing penalties cause large leaps in sentencing exposure that amount to exponential growth when compared with a defendant’s prior sentences.

We can better understand the problem of shocking sentences (and how to solve it) by understanding the psychological phenomenon that likely causes it: the exponential growth bias.  Across a number of domains, people making quantitative decisions tend to presume linear growth will occur, even in light of evidence that the growth is exponential.  I argue that this phenomenon happens in sentencing as well, and explains — at least in part — why defendants don’t anticipate these types of sentences.

Understanding the psychological underpinning of shocking sentences helps us understand why they are harmful: they undermine due process and predictability in the law, they limit potential deterrence, and they’re out of line with everyday intuitions about sentencing.  Flatly, they’re bad sentencing policy, and we should reduce them or eliminate them outright.  But even if eliminating shocking sentences is politically untenable, there may be ways to reduce the effect of the exponential growth bias.  Applying lessons learned from the psychological literature, I suggest ways to provide increased notice of recidivist sentencing provisions aimed to make them less shocking.

"Towards a Federalism(s) Framework of Punishment"

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

Federalism and its impact on criminal punishment is foundational to understanding the failures of mass incarceration. Scholars studying the negotiation of power between the federal and state governments have highlighted the increase of cooperative agreements that allow these levels of government to accomplish mutually beneficial outcomes for their overlapping constituencies.  In the context of criminal punishment, however, such cooperation has devolved into a race to the bottom in a bi-partisan push to punish.  Consequently, this modern cooperative era of federalism has served to facilitate mass incarceration in many respects as a policy vehicle to accomplish a national tough-on-crime agenda.

This Article argues for a new conception of punishment that forms important synergies within a redesigned federalism system.  The core principle that connects punishment and federalism theory is their impact on the liberty interests of the individual.  This Article builds on this unifying principle of liberty to constrain cooperative criminal federalism from abusing its power and over subscribing to carceral punishments.  These unique tools that merge federalism and punishment theories form the federalism(s) framework of punishment, which leads to a set of policy outcomes in which the federal and state governments conflict, cooperate, and coordinate in different contexts with the goal of fully appreciating the liberty interests of the offender while increasing public safety.

Might Pennsylvania's top court pioneer new constitutional checks on extreme felony murder sentences?

The question in the title of this post is prompted by a notable case recenly accepted for review by the Pennsylvania Supreme Court. This recent Bolts article by Victoria Law. This piece should be read in full (like all Bolts pieces), though the full headline covers the essentials: "Pennsylvania Reckons with Its Draconian Laws on Life Imprisonment: Over 1,000 Pennsylvanians are serving life without parole sentences for murders they didn’t themselves commit. The state supreme court agreed to review whether this is constitutional." Here are excerpts: (with links from the original):

In 2014, [Derek] Lee, then age 29, participated in a burglary in which his accomplice fatally shot the homeowner. Lee had not been involved in the killing and wasn’t even in the room at the time.  Nonetheless, two years later, he was convicted of felony murder, a type of charge that prosecutors can bring against someone who was involved in a crime that led to a death, even if the death was unintentional or the defendant didn’t participate in the killing.

In Pennsylvania, felony murder is classified as second-degree murder, and all convictions for second-degree murder trigger an automatic sentence of life without parole.  These abnormally draconian laws have made Pennsylvania home to near-record numbers of people sentenced to die in prison.  The state has the second-highest number of people serving life without parole, nearly 5,100 people; approximately one in five have been convicted of felony murder. ...

Life without parole has frequently been proposed as a more humane alternative to the death penalty, but advocates for reform call it “death by incarceration.” Ashley Nellis, senior researcher with the Sentencing Project, points out that LWOP sentences allow for virtually no second chance no matter a person’s transformation or the amount of time that has elapsed.  “The state is killing you, just slower — and for a wider range of offenses or participation in those offenses,” she said.

Nellis points out that the expansion of life without parole has far outpaced the decline in the death penalty. The number of people serving life without parole has jumped 66 percent since her organization began collecting data in 2003, reaching roughly 56,000 people as of a 2021 report by the organization. In Texas, for instance, the number of life without parole sentences has grown as the number of those sentenced to death has dropped. “When you’re looking at a death sentence, you have a capital attorney and [other] special rights given to you because of the seriousness of the sentence,” Nellis noted, but those protections are not available to those facing LWOP.

Prison Policy Initiative releases tenth edition of its flagship report, now "Mass Incarceration: The Whole Pie 2024"

It is pi day, which for the last decade has meant a special treat for sentencing fans and criminal justice data fans: the Prison Policy Initiative's latest, greatest version of its amazing incarceration "pie" graphic and associated report. The latest report "Mass Incarceration: The Whole Pie 2024" provides a spectacular accounting of the particulars of who and how of incarceration in the United States. As I have said in the past, the extraordinary "pies" produced by PPI impart more information in a few images than just about any other single resource I know about (and this PPI press release has the main visual and other highlights). Here is part of this latest pie report's introductory text and  overview (links and format from the original):

The various government agencies involved in the criminal legal system collect a lot of data, but very little is designed to help policymakers or the public understand what’s going on. The uncertainty that results muddies the waters around our society’s use of incarceration, giving lawmakers and lobbyists the opportunity to advance harmful policies that do not make us safe. As criminal legal system reforms become increasingly central to political debate — and are even scapegoated to resurrect old, ineffective “tough on crime” policies — it’s more important than ever that we get the facts straight and understand the big picture.

Further complicating matters is the fact that the U.S. doesn’t have one criminal legal system; instead, we have thousands of federal, state, local, and tribal systems. Together, these systems hold over 1.9 million people in 1,566 state prisons, 98 federal prisons, 3,116 local jails, 1,323 juvenile correctional facilities, 142 immigration detention facilities, and 80 Indian country jails, as well as in military prisons, civil commitment centers, state psychiatric hospitals, and prisons in the U.S. territories — at a system-wide cost of at least $182 billion each year.

This report offers some much-needed clarity by piecing together the data about this country’s disparate systems of confinement. It provides a detailed look at where and why people are locked up in the U.S., and dispels some common myths about mass incarceration to focus attention on overlooked issues that urgently require reform....

While this pie chart provides a comprehensive snapshot of our correctional system, the graphic does not capture the enormous churn in and out of our correctional facilities, nor the far larger universe of people whose lives are affected by the criminal legal system. In 2022, about 469,000 people entered prison gates, but people went to jail more than 7 million times. Some have just been arrested and will make bail within hours or days, while many others are too poor to make bail and remain in jail until their trial. Only a small number (about 102,700 on any given day) have been convicted, and are generally serving misdemeanors sentences of under a year. At least 1 in 4 people who go to jail will be arrested again within the same year — often those dealing with poverty, mental illness, and substance use disorders, whose problems only worsen with incarceration.

"An Overview of Intermittent Confinement and Weekend Incarceration in the U.S."

The title of this post is the title of this research document now available via SSRN that I helped with through the Drug Enforcement and Policy Center along with Peter Leasure and Jana Hrdinova. Here is its abstract:

In the current study, we provide an overview of federal law on intermittent confinement, present data on the use of intermittent confinement in the federal system and weekend incarceration in the state system, discuss existing research on intermittent confinement and weekend incarceration, and present results of a survey of federal probation officers on their opinions of intermittent confinement.  Overall, the results of the study indicated that intermittent confinement and weekend sentences are rarely used in federal and state systems (relative to traditional incarceration sentences). Additionally, we found that a single federal district (Texas West) accounted for the majority of federal intermittent confinement cases across several years of data.  Results of the survey of federal probation officers showed that logistical issues with intermittent confinement and incarceration facility availability may be a cause for low numbers of intermittent confinement sentences.  The finding about logistical issues with intermittent confinement was consistent with previous research.  Informed by these findings, directions for future research are discussed in detail.

Two very different perspectives on mass incarceration and views thereon

I came across two notable and very different pieces setting forth very different perspectives on modern incarceration policies and practices.  Both merit review, and here is a brief accounting:

First, from The Heritage Foundation, Zach Smith has authored "The Myth of Mass Incarceration Remains Strong — Despite All Evidence to the Contrary."   Here is how it starts and concludes:

Jeffrey Bellin’s new book is based on a myth. He believes — wrongly — that the United States is addicted to putting people in prison who don’t need to be there — hence the title of his book, Mass Incarceration Nation.  Despite his best efforts to portray his book as a nuanced account of the current state of the U.S. criminal justice system and its supposed ills, it’s actually an ideologically driven tome with a pre-determined conclusion: the states and the federal government lock up too many people....

Ask anyone on the street the following simple question: Should someone who commits premeditated first-degree murder be sent to prison?  Almost to a man or woman, each person asked will say, “Yes, of course!”  You will get the same answer if you ask them what should happen to rapists, robbers, and recidivists.  People convicted of these crimes are the individuals who today overwhelmingly fill state and federal prisons in the United States.  Yet these are the very individuals Bellin would release from prison to achieve his decarceration goals.  Maybe that’s the point.  He seems to say that the public shouldn’t have a say in how we punish certain crimes.  But that can’t be the way a democratic society operates.  It certainly seems obvious that where there is crime, there must also be punishment.  If not, more crime and more victims will be the inevitable result.

Second, FWD.us has a "poll memo" titled "New Polling Demonstrates Ongoing Support for Criminal Justice Reform and Policies to Reduce Incarceration."  Here is how the memo starts are a few additional reported poll findings:

Recent polling, conducted by BSG on behalf of FWD.us, underscores a significant and unwavering level of support for criminal justice reform among the American public. The data reveals not only high levels of support but also strong backing for candidates who advocate for policies aimed at reducing incarceration rates.

According to the poll, 78% of likely voters (LVs) support criminal justice reform, including 2 in 3 Republicans, 87% of Democrats and 82% of Independents. Across demographics there is strong support for reducing prison and jail populations, with particularly strong support among Democrats and Black voters. The poll also shows this support is largely unchanged from 2022, demonstrating that voters continue to want their elected officials to build on the progress that has been made to reform the criminal justice system.

The survey aimed to measure public perception of the functionality of the criminal justice system, attitudes toward candidates supporting policies to decrease incarceration rates, and public sentiment regarding crime. There is overwhelming support for many specific policy changes such as sentencing reforms, parole reforms, and the First Step Act....

Nearly two-thirds believe it is important to reduce the jail and prison population in the U.S., including half of Republicans and large majorities of Americans of color, particularly Black Democrats....  Voters are much more likely to say that mass incarceration makes communities less safe than they are to say that we are safer with more people locked up.... Nearly 2 in 3 voters believe that mass incarceration contributes to social problems, as opposed to only 1 in 17 who believe that locking more people up alleviates issues of homelessness, drug use, and overdoses.

Prison Policy Initiative releases "Women’s Mass Incarceration: The Whole Pie 2024"

The folks at Prison Policy Initiative have released its latest version of in its "Whole Pie" incarceration series with this new report titled "Women’s Mass Incarceration: The Whole Pie 2024" authored by Aleks Kajstura and Wendy Sawyer.  As I always recommend, everyone should click through to see all the great graphics and broader narratives that go with these reports. Here are parts of text from the start and the very end of this report:

With growing public attention to the problem of mass incarceration, people want to know about women’s experiences with incarceration.  How many women are held in prisons, jails, and other correctional facilities in the United States? Why are they there?  How are their experiences different from men’s?  These are important questions, but finding the answers requires not only disentangling the country’s decentralized and overlapping criminal legal systems, but also unearthing the frustratingly limited data that’s broken down by gender.

This report provides a detailed view of the 190,600 women and girls incarcerated in the United States and how they fit into the even broader picture of correctional control.  We pull together data from a number of government agencies and break down the number of women and girls held by each correctional system, by specific offense, in 446 state prisons, 27 federal prisons, 3,116 local jails, 1,323 juvenile correctional facilities, 80 Indian country jails, and 80 immigration detention facilities, as well as in military prisons, civil commitment centers, and prisons in the U.S. territories.  We also go beyond the numbers, including rare self-reported data from a national survey of people in prison to offer new insights about incarcerated women’s backgrounds, families, health, and experiences in prison. This report answers the questions of why and where women are locked up — and much more....

The picture of women’s incarceration is far from complete, and many questions remain about mass incarceration’s unique impact on women. This report offers the critical estimate that a quarter of all incarcerated women are unconvicted. But — since the federal government hasn’t collected the key underlying data in 20 years — is that number growing? And how do the harms of that unnecessary incarceration intersect with women’s disproportionate caregiving to impact families? Beyond these big picture questions, there are a plethora of detailed data points that are not reported for women by any government agencies. In addition to the many data holes and limitations mentioned throughout this report, we’re missing other basic data, such as the simple number of women incarcerated in U.S. territories or involuntarily committed to state psychiatric hospitals because of justice system involvement....

While more data are needed, the data in this report lend focus and perspective to the policy reforms needed to end mass incarceration without leaving women behind.

"The Price of Criminal Law"

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

Should tax dollars pay for more criminal law, better public schools, or a new community center? Different counties will answer the question differently, but facing these tradeoffs is profoundly important to democratic governance.  Nonetheless, because the criminal legal system diffuses power and hides and offloads costs, officials and voters do not have to honestly consider that question.  These structural features place a hidden thumb on the scale that gives counties more criminal enforcement than they pay for.  That is a problem.  Too much enforcement is particularly pernicious in criminal law: Incarceration inflicts tremendous suffering, especially in poor communities of color.  Suburban voters who do not live in or look like residents of overpoliced communities have no incentive to account for others’ suffering.  But if their tax dollars had to pay for the entire criminal law apparatus in their community, their financial stake might urge restraint.

Accountability poses a central challenge in criminal law.  Because power and funding are diffuse no one knows who to blame. This Article argues that budget constraints provide an important accountability measure for criminal law and that counties should be empowered to and burdened with making the hard choices.  It then articulates the goals to which a democratically accountable budget in criminal law should strive.  Such a budget would require government officials to be transparent in setting priorities and respect basic rights such as the right to counsel, the right against being caged in dangerous conditions, and the right to a speedy trial.  To protect these rights and respect budgetary balance, budget allocations for indigent defense, carceral facilities, and courts should limit the number of cases prosecutors can bring.  Ultimately, this Article aims toward a system in which criminal law is used only to the extent that a local community views its benefits as greater than the suffering it inflicts.  It is animated by the instinct that some communities would spend differently if they saw the full financial costs of criminal law.

Louisiana legislature enacts slate of tough-on-crime bills urged by its new Gov

A helpful reader made sure I saw this local news accounting of the significant crime legislation that formally passed today.  Here are just some of the details:

The special crime-focused legislative session wrapped up early on Thursday after lawmakers passed all of the controversial tough-on-crime bills touted by Gov. Jeff Landry.

On the final day of the session, legislators approved HB6, which expands the methods of how Louisiana can execute death row inmates.  The bill added nitrogen hypoxia and the electric chair into the toolkit.  This is part of the effort of the new governor to resume executions. Louisiana has only put one person to death over the last two decades.  There are currently 57 people on the state’s death row....

Also given final passage are two bills that would require inmates to serve more of their sentences in prison. HB9 does away with parole for future offenders starting in August of this year.  HB10 also significantly reduces the amount of time that can be shaved off based on good behavior to just 15%.  HB11 extends how long someone has to be on parole, for those who still qualify, and adds further consequences for those who violate their parole.

Lawmakers also passed SB3, which will designate adults as 17 years or older in the criminal justice system.  This means 17-year-olds will be tried as adults when they commit a crime and will be housed in adult facilities....

In response to recent violent carjacking stories coming out of New Orleans, lawmakers passed HB7 to increase the penalty for carjacking to nearly double what it is currently.

There were many questions about how much all this legislation will cost.  The Legislative Fiscal Office estimated together it will cost millions of dollars a year.  However, legislators questioned their calculation methods and claimed it wouldn’t cost that much.

The bills passed now head to the governor’s next for signature and he is anticipated to sign them over the next week.

"Capital Trifurcation"

The title of this post is the title of this new article now available via SSRN authored by William W. Berry III.  Here is its abstract:

The death penalty is disappearing in the United States. Annual executions remain under twenty-five per year, and new capital sentences have not exceeded thirty in over a decade.

Over the past two decades, however, a new kind of death sentence has emerged—life-without-parole (LWOP).  In practice, LWOP and death sentences are functionally equivalent, as most death row inmates die of natural causes in prison, not execution.  For both economic and moral reasons, most states are not actively executing prisoners.

Therefore, capital sentencing proceedings that focus on life versus death neglect the more consequential question — life without parole versus life with parole.  That decision shapes whether one has a chance at life after prison or will die in prison, two very different outcomes.

But the capital sentencing process obscures this reality, at best, and at worst, does not even give the jury a choice.  It makes little sense to focus the jury on a hypothetical question of life and death while ignoring the real dilemma.  To that end, this Article argues for a rethinking of the sentencing procedure in capital cases.

First, the Article explains why mandatory LWOP sentences violate the Eighth Amendment, and why even if they don’t, states should abolish them.  Then, the Article advances its central proposal—the trifurcation of capital trials.  In short, states should split the sentencing phase of capital cases into two parts. In the first, the jury decides between life and death. If the jury chooses life, a second sentencing phase ensues, with the jury choosing between life with parole and life without parole.

Part I of the Article describes the LWOP problem of capital sentencing — that the procedures either (1) obscure the choice between life with parole and life without parole or (2) remove that decision from the jury’s discretion altogether.  Part II addresses the central barrier to capital trifurcation — mandatory LWOP sentences.  To that end, it argues for the elimination of mandatory LWOP sentences, either by constitutional or statutory means.  Finally, in Part III, the Article proposes capital trifurcation, explaining the procedural nuances of and the theoretical justifications for this approach.

"How many women and men are released from each state’s prisons and jails every year?"

The question in the title of this post is the title snd topic of this new Prison Policy Initiative briefing authored by Leah Wang.  The subtitle highlights the contents: "We’ve drilled down into 2019 data to show prison and jail releases by sex in each state and made our best estimates of how many women and men were released from prisons and jails nationwide in 2022."  These data are fascinating, both the state-by-state numbers and other breakdowns as well as the cumulative data, and they serve to highlight the massive number of people who are subject to some form of incarceration over the course of a year in the US.  

I recommend clicking through to see all the numbers, but I was especially struck that Texas had over a million total releases from prisons and jails in 2019 and California had just shy of a million total releases from prisons and jails that same year.  As a point of comparison, this means that each of these two big states likely had more persons emerging from incarceration than the entire population of states like Vermont and North Dakota.  (I say "likely" because I suspect there are some persons sent to and released from jail multiple times that get double counted in the data on releases.)

For another set of notable numbers, this PPI briefing calculates a total of nearly 11 million releases in 2019 (10,817,398 to be exact), with the total released estimated to have declined in 2022 to "only" 7,659,492.  Even that lower number for estimated 2022 releases is larger than the population of about 35 states; the higher number from 2019 represents a population large enough to be one of the 10 biggest states in the US.  Put another (silly?) way, if all persons released from incarceration in a year were aggregated into a single new state, that new state would get apportioned a whole lot of representatives and electorial votes.

"Reviving Rehabilitation as a Decarceral Tool"

The title of this post is the title of this new essay authored by Aliza Hochman Bloom now available via SSRN. Here is its abstract:

After advocates argued that circumstances attendant to late adolescent offenders make them less culpable for their offenses and better disposed for rehabilitation, the Massachusetts Supreme Judicial Court (SJC) held in January that it is unconstitutional to sentence 18 through 20 year olds to life without parole.  Last summer, Connecticut passed legislation providing a “second look” opportunity for parole to those incarcerated for lengthy prison sentences for crimes that they committed before they were twenty-one years old.  In 2021, Rhode Island decreased the amount of time that youthful offenders must serve before they become eligible for parole, but its highest court is currently interpreting disputed provisions.  Efforts to reduce lengthy sentences for late adolescents are grounded in scientific literature showing that “emerging adults” have great propensity for rehabilitation, rendering extraordinarily long prison sentences inappropriate.

Recently, national conversation has focused on reducing the front-end of incarceration, by shrinking police presence and decriminalizing drug and other nonviolent crimes.  Back-end decarceral efforts — so called “second look” sentencing and clemency initiatives — are either underappreciated or derided as reforms that legitimate a fundamentally unjust system.  While I embrace the need to significantly shrink the quantity of people in prison, sentencing reforms for emerging adults can meaningfully reduce our carceral footprint. Also, disproportionality by race in extreme sentencing suggests that late adolescents are particularly likely to be sentenced based on systemic racism and implicit biases in policing, prosecution, and sentencing, rather than unique characteristics or facts of their crimes.  Thus, effective “second look” efforts have the potential to address racial inequities.

This essay explores three state efforts to reduce the carceral terms of late adolescents, evaluating the advocacy strategies and compromises made to achieve meaningful reform. The Supreme Court recognizes that minors are less culpable, less deterrable, and more capable of rehabilitation than adults.  Significant research supports extending these findings to “emerging adults” — individuals under the age of twenty-five years old.  Should this rehabilitative lens, grounded in science, be effectively harnessed to the “back-end” reforms focused on those who commit crimes prior to the age of twenty-five, the potential decarceral effects can be widespread.  In the area of emerging adults and serious crime, criminal law minimalism means coupling the science about late adolescents with effective advocacy strategies to reduce our carceral population.

Notable new analysis of notable (old) data on prison admissions

The data on prison admissions (from 2021) reported in this new Crime and Justice News item caught my eye this afternoon.  Here are the details:

A new analysis from the Council of State Government Justice Center found that despite recent declines, parole-probation violators still make up a large proportion of new prison admissions. In 2021, 44% of state prison admission were people who violated the terms of their parole or probation sentences. And on any given day, 1 in 4 people in state prison were incarcerated because they violated the terms of their supervision. Those proportions have remained constant, even as overall numbers have decreased....

Incarceration for violations of supervision declined in 2020 and, in many states, continued to drop in 2021.  Ten states — Colorado, Minnesota, Hawaii, New Jersey, Kansas, New York, Rhode Island, Maryland, Pennsylvania and Vermont — reduced admissions by 50% or more.  The declines are part of a larger trend: from 2018 to 2021, across the country, the numbers of prison admissions from community supervision decreased by one-third. Part of that was due to decreased criminal activity during the height of the pandemic, with the exception of homicides and intimate-partner violence. It was also affected by changes in supervision practices and court backlogs.

Researchers examining those states where supervision incarcerations fell — and where they didn’t — have found no significant relationship between changes in the number of people incarcerated for supervision violations and changes in violent-crime rates at state levels.  But in 2021, states collectively spent more than $10 billion incarcerating probation-parole violators. More than $3 billion of that was for technical violations, not for new criminal activity....

Racial disparities begin prior to criminal-justice-system contact and persist at all stages of the system.  When looking at parole and disparities, 18 states — including much of the Deep South —  did not exhibit disparities in revocation rates, while 20 states increased the disparities.  Twelve states — including Montana, Wyoming, Nebraska, Colorado, New Mexico, Minnesota, Wisconsin, Iowa, Illinois, Indiana, New Jersey, and Pennsylvania — reincarcerated Black parolees at a 20% or higher rate.

New Prison Policy Initiative briefing makes arguments against jail construction arguments

This new briefing from Prison Policy Initiative authored by Emmett Sanders seeks to undercut arguments made in favor of jail construction. The full title of the posting highlights its themes: "Cautionary jails: Deconstructing the three “C”s of jail construction arguments. Communities across the country have been told that investing in new jail construction is the only way to solve old policy problems, but arguments for new jails can leave them with a billion-dollar case of buyer’s remorse."  Here is how the briefing begins (with links from the original):

Arapahoe County, Colorado, is expanding its jail just four years after taxpayers rejected a proposition to raise taxes for a new one.  The justification for the $46 million expansion? Proponents cite the jail’s age, overcrowding, and a sudden sensitivity to the need to treat rather than warehouse people with addiction issues; the sheriff claims, “people’s needs have changed.”  $30 million will come from COVID-19 pandemic relief funds; as the ACLU notes, using relief funds in this way is expressly forbidden by the Department of Treasury.

Similar arguments are being used to justify jail construction all around the country.  Often, this means ignoring voters’ wishes, misusing and redirecting millions of dollars from community-based resources, and saddling citizens with decades of tax liability.  New jail construction projects regularly fail to meet promises, leaving communities to deal with the aftermath.  Drawing from examples across the country, we break down three common arguments for jail construction, discuss how they have been used to build or expand jails, and highlight how reinvesting in cages is not a solution to social problems like crime and substance use.

Jail proponents usually rely on one or more of three central arguments to make their case:

• The “Capacity” argument: a bigger jail is required to house everyone being incarcerated in the jurisdiction;
• The “Contemporary” argument: new construction is needed to update an outdated jail;
• The “Compassionate” argument: new construction is necessary to treat incarcerated people more humanely.

On a surface level, these three “C” arguments are compelling because they speak to very real issues. What these arguments often overlook, however, is that these issues are largely driven by bad policies that have drastically expanded reliance on packing people in cages.  Essentially, the prevailing claim is that the only way to solve the problem of incarceration is to expand our ability to incarcerate — when in fact, communities would be better served by shrinking jail populations.  This sunk cost fallacy often leaves communities without real solutions and holding the bag for decades.