Sunday, August 18, 2019

Enduring examinations of the data and dynamics of modern mass incarceration

Professor John Pfaff's important book on modern criminal justice systems in the United States, Locked In: The True Causes of Mass Incarceration - and How to Achieve Real Reform, was published more than 2.5 years ago.  But the data and themes covered in this book remain quite timely, as well evidenced by two new pieces published this week.  The first is by Pfaff himself in Politico under the headline "What Democrats Get Wrong About Prison Reform." A paragraph from the start of this piece provides highlights: 

Drug crime is not what’s driving the high prison population in the United States.  It’s crimes of violence.  And this omission has consequences. It means that any “solution” is unlikely to achieve its intended goal and in the meantime society will continue to suffer long-term damage — physical, psychological and economic — from a persistent cycle of unaddressed violent crime.

The second is this much longer treatment of these important subjects in the Federalist Society Review under the title "Two Views on Criminal Justice Reform: The Author and a Critic on Locked In." This document has two terrific pieces: (1) an "An Interview with Professor John Pfaff" curated by Vikrant Reddy, and (2) "Refreshing Candor, Useful Data, and a Dog’s Breakfast of Proposals: A Review of Locked In by John Pfaff" authored by Kent Scheidegger. Here is how Scheidegger's review of Pfaff gets started:

John Pfaff gives us two books under one cover in Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform.  In the first book, he tells us that nearly everything we have been told about so-called mass incarceration by his fellow “reform” advocates is false.   His candor is a breath of fresh air. He convincingly makes the case with a mound of useful data.

The second book, in contrast, is thinly supported and heavily influenced by Pfaff’s predispositions.  He tells us that high incarceration rates are caused primarily by overcharging prosecutors, though his data do not rule out alternative hypotheses.  He claims that the election of tough prosecutors is caused by the “low-information, high salience electorate,” not by informed people who genuinely and justifiably disagree with him on priorities.   The primary ingredients in his stew of solutions are tools to save the ignorant masses from themselves by making our society less democratic and our criminal justice decision-makers less responsible to the people.  Other intriguing possibilities raised by his data go unexplored.

Pfaff does not define what he means by “reform,” but he appears to use that term for policies that have the single-minded purpose of reducing the number of people incarcerated.  Obviously, that is not the sole or universally accepted meaning of the term in criminal justice. The Sentencing Reform Act of 1984 definitely did not have that purpose.  In this review, I will put the word “reform” in quotation marks when used in Pfaff’s sense.

August 18, 2019 in Offense Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (0)

Thursday, August 15, 2019

"Is Mass Incarceration Inevitable?"

The title of this post is the title of this notable new paper authored by Andrew Leipold now available on SSRN. Here is its abstract:

The claim that American justice system engages in "mass incarceration" is now a cliché, albeit one that seems entirely justified by both the number and rate of people who are behind bars.  As a result, a large number of states and the fed­eral government have engaged in wide-ranging reform efforts to shorten senten­ces, divert people from prison, and in general reduce incarceration numbers to more manageable levels.  Although these efforts have made modest gains, there has been little discussion of whether their ultimate goal is feasible-reducing incarceration levels to a point where "mass" incarceration is no longer an apt description.

This article explores the likelihood of a meaningful, sustained reduction in incarceration rates. It begins by asking what we really mean by mass incarcera­tion and finds that while the definition is surprisingly complex, the label ulti­mately seems justified.  Then, using existing and original compilations of data, the article examines some of the less-obvious obstacles to reducing prison popula­tions.  In particular, it highlights the difficulty of reducing incarceration rates without addressing the problems created by those convicted of violent crimes, something few reforms have been willing or able to do.  It also argues that those who believe prison reform will lead to economic savings-a primary motivation in virtually every state-are misguided, and that illusion of economic savings might ultimately derail the reform efforts.

The article then takes a further step and suggests that efforts to decrease incarceration levels will inevitably be frustrated unless the most influential per­son in the creation of mass incarceration, the prosecutor, is induced to play a more central role.  To date, reform efforts have routinely targeted everyone in the process except prosecutors, and this article offers both suggestions on why this is so and an argument for why prosecutors are an indispensable part of any change.  The article concludes with the sobering prediction that, as useful as recent reforms have been, as currently constructed they will ultimately be inad­equate to erase the mass incarceration label for years to come.

August 15, 2019 in Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

Shouldn't all prosecutors (and judges and defense attorneys and police and probation officers) make regular and repeated visits to prisons?

Last month the folks at FAMM started the #VisitAPrison challenge which calls on lawmakers to visit a prison or jail and which rightly highlights that many legislators who make and change laws governing incarceration often have no direct or personal experiences with prisons or persons incarcerated therein. I consider the FAMM campaign very valuable and important, and this interesting new piece by Daniel Nichanian at The Appeal Political Report prompted the follow-up question that serves as the title of this post.  This piece is headlined "Prosecutor Sends Staff to Prison, in a Bid to Counter Their Reflex to Incarcerate,"and I recommend it in full. Here are excerpts:

Sarah Fair George, the state’s attorney of Chittenden County (home to Burlington) in Vermont, has instructed all staff and prosecutors who work in her office to visit the St. Albans prison, also known as the Northwest State Correctional Facility. “Most prosecutors have never stepped foot in the buildings that they sentence people to spend years in,” she wrote on Twitter. “That needs to change.”

I talked to George on Wednesday about her initiative, and how it could change practices in her office. She said prosecutors often treat prison time “nonchalantly,” as something abstract, and get in the habit of “just throwing out numbers.” “We say six months or two years, and don’t really have to think about what it means for the person,” she explained.

“It’s important to stand in that space and see it for yourself, and feel it for yourself,” she added. “My hope is that people recognize that six months is a long time to spend in jail. Maybe thirty days can be enough time, maybe no jail. Just being more cognizant of the space you’re sending people to when you put an arbitrary number on an offer sheet.”

George said this perspective should fuel shorter sentences, but also restrain prosecutors from seeking incarceration in the first place. “They spent an hour and a half there and were relieved to get out,” she said of staff members who have already visited St. Albans as part of her initiative. “So let’s imagine how this might impact somebody who is there for six months or a year, and how this impacts them as a community member when they get back out. Is there a way that we can avoid that entirely, and not risk them coming out a more violent person or with some type of trauma having been in jail? Can we find another way?”...

The interview has been condensed and lightly edited for clarity.

Q: You announced that you have instructed prosecutors in your office to visit a prison in the next month. What is the impetus for this, and what insights do you wish them to glean?

A:  For me, it has gone back to my own experience having been in some of these prisons. It has shaped a lot of my reform policies and how I approach prosecution in general. When I was in grad school, I went to multiple prisons and was on the mental health wards at those prisons, which were in some cases pretty appalling. Then, when I was at the public defender’s office, I went to several prisons and met with clients and heard the stories of either how they were treated in jail or the conditions of jail, solitary confinement, stuff like that. I came into being a prosecutor with that background, and with that idea of what some of those prisons are like.

I have always thought it is important for people to understand what probation does, and what some of our community partners do, and that’s always been stressed. But it’s never been stressed that they should also fully understand what prison means, and what a jail sentence means for these individuals. As prosecutors, we get very comfortable with just throwing out numbers as an amount of time. We say six months or two years, and don’t really have to think about what it means for the person, that six months for one person could be detrimental to their entire lives.

What are you thinking of when you say it’s important to understand what prison means for individuals? What it is that you think people in your office should have to witness?

Literally just seeing the facility, and understanding literally where they’re sending people. But also being in one of those cells and sitting on the bed in a cell and seeing how small that space is, and seeing a solitary confinement room and seeing how claustrophobic you get in five minutes in that room. Hearing those sounds in the jail of those doors closing, and how cold and harsh all of those sounds are. Seeing inmates in that environment. In Vermont, there is this idea that jail isn’t that bad, and in some sense we’re very lucky, but that’s a lot easier to say on the outside. You spend an hour and a half in the jail and you find yourself relieved to come out. You know you were always coming out, but you have that experience and you think, “Okay, maybe that TV and that good food is not as important as I thought it was when I just lost my freedom for an hour and a half, knowing full well I’ll be coming out and I’m still relieved.”

As a prosecutor, the only time I’ve been to a jail is for a deposition of an inmate, or an inmate who wants to do a proffer. Those meetings are very structured, they’re in a space right inside the jail, so you’re not going very far. There’s really nobody else around. That doesn’t count for me, that’s a very easy way to say you’ve been in a jail without actually being in a facility. I think it’s important to really stand in that space and see it for yourself, and feel it for yourself.

Q:  How exactly do you think prosecutors should take these things into account in the course of their work? At what stages of their discretion should this weigh in?

A: It may not start necessarily with the charging decisions, but I think in some cases it could. If you know for example that this person’s parole could be revoked and they may go back to jail, or you know that they might be held in bond or some other violation, then maybe it does charge at the charging decision. But at the very least, I think that when you’re giving an offer on a case and you nonchalantly say six months as if that’s not a lot of time, my hope is that people recognize that six months is a long time to spend in jail. Maybe thirty days is enough time, maybe no jail. Just being more cognizant of the space you’re sending people to when you put an arbitrary number on an offer sheet.

But also understanding where people are coming from. Somebody may have a long record, and that record has led to incarcerative sentences several times in their history — maybe you can have a better understanding of why they are in the place that they’re in, having spent all that time in jail. Maybe doing it again isn’t going to do them hasn’t favors. That hasn’t worked, that person is back. Maybe we need to find another way to address this particular person.

August 15, 2019 in Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (7)

Sunday, August 11, 2019

"Between 2007 and 2017, 34 States Reduced Crime and Incarceration in Tandem"

The title of this post is the title of this recent posting over at the Brennan Center for Justice authored by Cameron Kimble and Ames Grawert. The subheading provide a summary of its main points: "Some still argue that increasing imprisonment is necessary to reduce crime. Data show otherwise." Here are excerpts:

It’s now been several decades since states around the country began experimenting with criminal justice reform — specifically, by reducing the number of people behind prison bars. Now we can start to take stock of the results. They’re encouraging — but with the prison population still sky-high, there’s a lot more to do.

Between 2007 and 2017, 34 states reduced both imprisonment and crime rates simultaneously, showing clearly that reducing mass incarceration does not come at the cost of public safety. The total number of sentenced individuals held in state prisons across the U.S. also decreased by 6 percent over the same decade. And these drops played out across the country....

While it’s tempting to focus on the Southern states — which were some of the most notable early adopters of reform — reductions in the last decade occurred across the board. The Northeast saw the largest average decline in imprisonment rate (24 percent), with only Pennsylvania recording an increase (3 percent). Crime rates also dropped fastest in the Northeast region, falling by just over 30 percent on average.

By contrast, the Midwest saw imprisonment rates drop by only 1 percent on average, and that modest reduction was driven by Michigan (20 percent), where recent criminal justice reforms are focused on reducing recidivism. With returns to prison down 41 percent since 2006, the state is home to one of the most comprehensive statewide reentry initiatives in the country....

It’s tough to say why some states successfully reduced their prison population while others failed. One possible commonality relates to socioeconomic well-being. Over half of the states where imprisonment rates grew had poverty rates above the national average as well. Those states were also some of the hardest hit by the opioid epidemic. West Virginia typifies this experience: crime rates dropped, but incarceration rose amidst the state’s struggles with opioid abuse and poverty....

The data clearly demonstrate that the United States’ prison population can be reduced without sacrificing the public safety gains of recent decades. Thirty-four states seem to have accepted this notion, as reflected by their (often) sharp declines in rates of imprisonment. Others lag far behind.

To this day, the United States imprisons its citizens at a higher rate than any other Western democracy. Though recent progress is surely encouraging, at the current rate of decarceration it would take nearly 40 years to return to imprisonment rates observed in 1971 — the last time the national crime rate was this low. And some aspects of justice reform are moving backwards. According to one recent study, jail reform is a purely urban phenomenon, as rural incarceration rates are actually increasing.

There’s no single solution to mass incarceration. Instead, states must continue making efforts to reduce imprisonment. And the minority of states that have not embraced decarceration need not look far to see that overreliance on incarceration is an ineffective and expensive means of keeping the public safe.

August 11, 2019 in Data on sentencing, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (4)

Tuesday, August 06, 2019

Notable Govs make the case for pressing forward with additional criminal justice reforms

Jerry Brown, former governor of California, and Matt Bevin, current governor of Kentucky, have this new Hill commentary under the headline "The US has barely scratched the surface on criminal justice reform."  Here are excerpts:

In these highly polarized times, our nation is awash in loud and public fights about immigration, health care, global warming, and other daunting challenges. Criminal justice used to be on that list of divisive topics.  But now Americans of nearly every political and demographic perspective agree — we need a public safety approach that works better and costs less.

As current and former governors who prioritize greater justice and safety, we believe this historic moment carries great opportunity, but even greater responsibility.  We must ensure that our momentum does not slip away, and we must push forward with nonpartisan purpose toward a criminal justice system worthy of our nation.

Our states of Kentucky and California are very different.  But we and other leaders across the country have coalesced around the principle that while people must be held accountable for breaking our laws, we cannot build our way to a safer society with ever-more prisons....

But while several dozen states and the federal government have made laudable progress, we’ve barely scratched the surface of all that must be done.  Taxpayers spend a quarter trillion dollars per year to arrest, try, sentence, and supervise the 7 million adults behind bars or on probation and parole.  Yet return-to-prison rates remain high, too many communities struggle with violence and substance abuse, and new technologies are increasing our vulnerability to cybercrime and other threats.

Fortunately, we know a lot more about what works in criminal justice than we did 40 years ago, when our nation began an incarceration boom that has exacted a heavy toll, in both fiscal and human costs.  While there are no magic bullets, research has spotlighted effective strategies to stop the cycle of reoffending and better equip people leaving prison to resume stable lives....

We’ve witnessed the power of shifting political winds, and we know that, particularly with criminal justice reform, we must double down on our efforts and guard against backward-looking proposals that are borne of emotion or recycle failed ideas of the past.

August 6, 2019 in Elections and sentencing issues in political debates, Reentry and community supervision, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Thursday, August 01, 2019

"Using the ADA's 'Integration Mandate' to Disrupt Mass Incarceration"

The title of this post is the title of this new article now on SSRN authored by Robert Dinerstein and Shira Wakschlag.  Here is the abstract:

As a result of the disability rights movement's fight for the development of community-based services, the percentage of people with intellectual and developmental disabilities (I/DD) and mental illness living in institutions has significantly decreased over the last few decades.  However, in part because of government failure to invest properly in community-based services required for a successful transition from institutions, individuals with disabilities are now dramatically overrepresented in jails and prisons. 

The Americans with Disabilities Act's (ADA) "integration mandate" -- a principle strengthened by the Supreme Court's 1999 Olmstead v. L.C. decision, entitling individuals with disabilities to receive services in the most integrated setting appropriate to their needs -- may provide one avenue to disrupt the school-to-prison pipeline and overrepresentation of people with I/DD and mental illness in prisons and jails.  In this Article, we explore how the federal government and private parties have used--and are beginning to use in new ways -- the integration mandate to advocate for the rights of individuals with disabilities to receive the supports they need to thrive in the community and avoid unnecessary entanglement with the criminal justice system.

August 1, 2019 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2)

"The Singularity and the Familiarity of Solitary Confinement"

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

More than 60,000 people are held in solitary confinement in U.S. prisons.  This essay explores the ways in which solitary confinement is distinctive and yet also is a familiar feature of U.S. prisons.  To do so, I track the expansion of solitary confinement, analyze the debate in federal courts about its lawfulness, and provide recent data on its widespread use.

In 2005, the U.S. Supreme Court condoned the use of solitary confinement, even as it also licensed courts to inquire about whether a particular version imposed an “atypical and significant hardship” on an individual.  If a prisoner can make such a showing, prison officials must provide some procedural buffers against arbitrary placements.

Empirical understandings of the use of solitary confinement comes through nation-wide surveys undertaken by the Association of State Correctional Administrators and the Liman Center at Yale Law School.  Data from 2018 identified more than 60,000 individuals who were placed in cells for 15 days or more for 22 hours or more.  Almost 4,000 people have been so confined for three years or more.

Solitary confinement is thus all too “typical” a facet of prison life.  Yet its commonplace occurrence ought not insulate solitary confinement from the conclusion that it is an illicitly cruel practice that debilitates individuals.  The complexity of doing so stems not only from the widespread use of solitary confinement, but also from the ways in which U.S. prisons are committed to many practices that are isolating and disabling of individuals.

August 1, 2019 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Wednesday, July 24, 2019

Noticing the (inevitable?) contentions that the right people are in prison and the wrong people are getting out

At a time of considerable excitement about a range of criminal justice reforms (including leading Prez candidates seeking to outdo each other with ambitious reform proposals), and with the mainstream press giving coverage to many important human (and human-interest) stories surrounding the release of prisoners with the implementation of the FIRST STEP Act, it can be all too easy to forget that not everyone sees a need for criminal justice reform and not everyone is excited to see people released from prison.  These pieces caught my eye in recent days as providing useful examples that there are still plenty of folks eager to contend that the right people are in prison and the wrong people are getting out:

From the City Journal by Rafael Mangual, "Everything You Don’t Know About Mass Incarceration: Contrary to the popular narrative, most American prisoners belong behind bars."

From the Conservative Review by Daniel Horowitz, "Well, well: Criminal justice ‘reform’ wasn’t about ‘non-violent’ offenders after all"

From Fox News by Gregg Re, "Exclusive: Violent criminals and sex offenders released early due to 'First Step Act' legislation"

Some of these pieces are more responsible than others (e.g., the Fox News piece is particularly ugly for making much of the fact that all types of prisoners got the benefit of the "good time fix" that became effective last week). But all of these pieces highlight the kind of rhetoric and reasoning that it seems will be an inevitably enduring part of criminal justice conversations.

UPDATE: I have now seen these two notable responses to the last of the pieces noted above:

From Reason by C.J. Ciaramella, "Tucker Carlson's Unhinged Rant Against Prison Reform Makes Us All Dumber: Carlson claims the law 'allowed hundreds of violent criminals' back on the street. Here's what he didn't tell you."

From the Washington Examiner by Derek Cohen, "Tucker Carlson and John Kennedy get the First Step Act all wrong"

July 24, 2019 in FIRST STEP Act and its implementation, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (4)

Tuesday, July 16, 2019

US House Subcommittee hearing spotlights "Women and Girls in the Criminal Justice System"

Last week, as noted over at my marijuana blog, the Crime, Terrorism and Homeland Security Subcommittee of the Committee of the Judiciary of the US House of Representatives conducted a notable hearing titled "Marijuana Laws in America: Racial Justice and the Need for Reform."   This week, that subcommittee continue to spotlight the need for criminal justice reform through a hearing this morning titled "Women and Girls in the Criminal Justice System."  This ABC News piece, headlined "House Judiciary subcommittee meets on growing population of women behind bars," provides a an effective summary of parts of the hearing, and here are excerpts:

Like 80% of women incarcerated in the U.S., Cynthia Shank was a mother when she went to prison.  Shank was pregnant when she was indicted and like many incarcerated women, she served time for nonviolent offenses -- in her case, she was sentenced to 15-years for federal conspiracy charges related to crimes committed by her deceased ex-boyfriend.  Nearly 150,000 women are pregnant when they are admitted into prison.

Shank, along with other prison reform advocates, appeared in front of the House Judiciary subcommittee for a hearing on women in the criminal justice system to discuss ways to make sure women are not overlooked in the conversation on criminal justice reform.  "Prison destroyed my small young family," Shank said.  "Prison is set up to separate and destroy bonds."...

Piper Kerman, author of the novel turned Netflix series "Orange is the New Black," also shared what her experience was like while imprisoned and why there needs to be a shift in policy to directly impact the growing number of women in prison.  "Policies, not crime, drive incarceration," Kerman said.

Women are now the fastest growing segment of the incarcerated population and initiatives to slow and even reverse the growth of the prison population have had disproportionately less effect on women, according to the Prison Policy Initiative.  The total number of men incarcerated in state prisons fell more than 5% between 2009 and 2015, while the number of women in state prisons fell only a fraction of a percent, 0.29% "In a number of states, women's prison populations are growing faster than men's, and in others, they are going up while men's are actually declining," said Aleks Kajstura, legal director of the Prison Policy Initiative.

The war on drugs is what many of the panelists and lawmakers pointed to as part of the reason there are such high rates of women incarcerated.  "Much of the growth of women in prisons can be attributed to the war on drugs," said Jesselyn McCurdy, deputy director of the Washington legislative office for the American Civil Liberties Union.

"Addressing this unfair issue is important because the war on drugs appears to be a large driver of the incarceration rates of women, as illustrated by the fact that the proportion of women in prison for a drug offense has increased from 12% in 1986 to 25% in more recent years." Rep. Jerry Nadler, D-N.Y., said.

An estimated 61% of women are incarcerated for nonviolent crimes, according to The Sentencing Project.  McCurdy touched on what many women, including Shank, fall victim to in the criminal justice system -- conspiracy charges as they relate to a significant other, also known as the "Girlfriend problem."

"You don't have to necessarily have dealt drugs, you have to have some role in a conspiracy and that role is very little," McCurdy said. "You can pick up the phone in your house that you live in with your partner and that's enough to implicate you in a conspiracy."

Family trauma was also a major focal point of the hearing, as lawmakers turned to the panel to seek their insight on the best ways to address the trauma of family separation. Shank told the subcommittee members that while she was incarcerated in a federal prison in Florida, she was only able to see her children once a year and that her children would beg her not to hang up the phone when they spoke.  "I'm an adult, I accepted the consequences of my sentencing, but my children were the innocent victims of this," Shank said.

The committee also spent time discussing the relationship between male prison guards and female inmates, with both Shank and Kerman saying that there needs to be more attention on the safety of women who are behind bars with male guards. "I never felt safe changing," Shank said.  "Guards know your schedule, and if they want to single you out they will."

Panelists were also asked to speak on the need of bail reform for women behind bars, as 1 in 4 women who are incarcerated have not been convicted and over 60% of women who could not make bail are parents of minor children, according to the Prison Policy Initiative.  Kerman said that there needs to be primary care consideration in the courts that require judges to consider the impact on families in both pre-trial hearings and sentencing.

"Women will no longer be overlooked in the criminal justice conversation," Rep. Karen Bass, D-Calif., said. "We must have an overall approach to criminal justice reform that specifically considers women.

The full two-hour+ hearing, along with the written testimony submitted by the official witnesses, can all be found at this official webpage.  And Piper Kerman's written testimony has a first footnote that provides this statistical basis for heightened concerns about the modern treatment of women and girls in the criminal justice system: "Since 1978, women’s state prison populations have grown 834%, while men’s state prison populations have grown 367%."

July 16, 2019 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1)

FAMM releases materials in support of new "Second Look Act" proposed by Senator Cory Booker

As noted in this post, Senator Cory Booker is now promoting a notable new second look provision to be added to federal sentencing laws.  The group FAMM has marked this development with this press release that includes notable new materials helping to make the case for a second look provision in federal law.  Here is part of the press release and its linked materials:

This week Sen. Cory Booker (D-New Jersey) and Rep. Karen Bass (D-Calif.) will be introducing the Matthew Charles and William Underwood Act. The bill would create a second look sentencing provision to allow judges to reduce lengthy sentences if a person has served more than 10 years, has made significant strides toward rehabilitation, and is no longer a risk to public safety.

“We have to stop throwing so many people away. People can change, and our sentencing laws ought to reflect that,” said FAMM President Kevin Ring. “Lengthy prison sentences are not always the right answer, especially when someone has proven their commitment to rehabilitation. Public safety can be improved by taking a second look at those lengthy sentences, reducing them when warranted, and redirecting anti-crime resources where they might actually do some good.”...

The bill is named in honor of Matthew Charles, a FAMM Justice Fellow and the first beneficiary of the First Step Act’s retroactive sentencing reform, and William Underwood, who is currently serving a life without parole sentence for a federal drug conviction....

In support of the new legislation, FAMM is releasing the following:

FAMM has been a longtime supporter of expanding ways to revisit harsh sentences, including executive clemency, compassionate release, and second look. Last month, USA Today published an op-ed co-authored by Ring and former federal judge Kevin Sharp on the need for second look sentencing laws.

July 16, 2019 in Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, July 09, 2019

More coverage prisoner reentry issues as FIRST STEP Act's "good time" fix approaches

Prior FIRST STEP Act implementation posts (linked below) noted the delayed application of the Act's "good time" fix, which provides that well-behaved prisoners now get a full 15% credit for good behavior amounting to up to 54 days (not just 47 days) per year in "good time."   And in this post last month, I noted press coverage and efforts surrounding this "good time" fix as it gets closer to kicking in this month (assuming the Attorney General complies with a key deadline in the Act).  This press coverage continues with this Fox News piece headlined "Thousands of ex-prisoners to reunite with their families this month as part of First Step Act," and here are excerpts therefrom:

More than 2,200 federal inmates are returning to their families this month from behind bars under the bipartisan prison reform bill President Trump signed into law last year, according to policy experts and prisoner advocates involved in the effort.

This month will see the largest group to be freed so far under a clause in the First Step Act that reduces sentences due to "earned good time."  In addition to family reunification, the formerly incarcerated citizens, 90 percent of whom have been African-American, hope to get employment opportunities touted by Trump last month at the White House as part of the "Second Chance" hiring program.

"We’re a nation that believes in redemption," the president said, noting Americans with criminal backgrounds are unemployed at rates up to five times the national average, which was around 3.8 percent earlier this year. "You're gonna have an incredible future."

The Trump Administration has asked the private sector to help the ex-prisoners reacclimate to their newfound freedom with jobs and housing in one of the largest criminal justice public-private-partnerships ever assembled.

Kim Kardashian West, who successfully lobbied President Trump to free Alice Johnson, a great-grandmother who was serving a life sentence convicted of drug trafficking for a first-time, non-violent drug offense, announced a partnership with rideshare organization Lyft to hand out gift cards for reformed criminals to get to and from job interviews as transportation can be a barrier. "I just want to thank the president for really standing behind this issue and seeing the compassion that he's had for criminal justice has been really remarkable," the "Keeping Up with the Kardashians" star said during a Second Chance Hiring and Re-entry event at the White House in June....

Matthew Charles, the first inmate released from the program and recognized by Trump for being a “model citizen,” told “America’s Newsroom” barriers to employment and housing need to be “eliminated” so former inmates don’t find themselves back in prison.  The Trump Administration has a broad amount of support across governmental departments from labor to DOJ to DOE, as well as governors across the country streamlining state services in order to reduce the barriers Charles mentioned.

This article seems to imply that ninety percent of those who will be released from prison soon thanks to the "good time" fix are African-American, but that racial statistic actually relates to the distinct group of prisoners who have received reductions in their crack sentences due to a different provision in the FIRST STEP Act.  The group getting relief thanks to the operation of the "good time" fix later this month is likely to be more closely representative of the entire federal prison population (which is, very roughly speaking, about 1/3 white, 1/3 black, and 1/3 Latino).  And, as noted in another recent press article, a good number of non-citizen offenders will be deported upon their release from prison.

Prior related posts:

July 9, 2019 in FIRST STEP Act and its implementation, Prisons and prisoners, Race, Class, and Gender, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (0)

Monday, July 08, 2019

A critical perspective on the Lone Star State's experiences with criminal justice reform

A few months ago, as noted in this post, Marie Gottschalk had published a critical review of the achievements of the federal FIRST STEP Act.  Now, in this notable new commentary in The Baffler about the Texas experience with criminal justice reform, she provides a critical perspective on how little has changed in a big state that seems to get a lot of reform credit.  The extended piece is headlined "The Prisoner Dilemma: Texas fails to confront mass incarceration," and here are some excerpts:

The origin story of the latter-day turnaround in Texas’s criminal justice system dates back to 2007, when legislators decided against spending an estimated $2 billion on new prison construction to accommodate projections that the state would need an additional seventeen thousand prison beds by 2012.  Instead, they enacted some modest changes in probation and parole to redirect people to community supervision; they also restored some funding for substance abuse and mental health treatment.  The attempt to slow down prison construction was, in fact, a big change from the post-Ruiz era, when the state attempted to build its way out of the overcrowding problem.  And yet, even though Texas was required to face up to certain realities — first by the Ruiz case and later by budget constraints — the Texas penal system, after all these years, has not really changed its stripes.

For all the hype, Texas remains “more or less the epicenter of mass incarceration on the planet,” according to Scott Henson, author of Grits for Breakfast, the indispensable blog on criminal justice and law enforcement in Texas.  Other states have far surpassed Texas in reducing the size of their incarcerated populations and in providing safer and more humane lock-ups that are not such blatant affronts to the Eighth Amendment’s ban on cruel and unusual punishment.

Texas today incarcerates nearly one-quarter of a million people in its jails and prisons — more than the total number of prisoners in Germany, France, and the United Kingdom combined.  If Texas were a country, its incarceration rate would be seventh in the world, surpassed only by Oklahoma and five other Southern states.  Texas still operates some of the meanest and leanest prisons and jails in the country. Two meals a day on weekends during budget shortfalls.  Cellblocks without air-conditioning, fans, or even enough water to drink in triple-digit heat. Understaffed, overwhelmed, and unsafe lock-ups in isolated rural areas.

All the applause that Texas received for the prisons it did not build and the handful of prisons it closed has overshadowed the fact that the Lone Star State continues to be one of the most punitive in the country.  If you add the number of people in prison and jails to those on probation, parole, or some other form of community supervision in Texas, that quarter of a million number grows to about seven hundred thousand. This amounts to about one out of every twenty-five adults in the state.  That’s enough to fill a city the size of El Paso.

Between 2007 and 2018, the total number of people held in state prisons and county jails in Texas did fall somewhat — by about 6 percent. But while the number of incarcerated men in Texas prisons and jails has inched downward, the number of incarcerated women has continued to grow.  The state’s female incarceration rate ranks fifteenth nationwide.

Texas has yet to enact any landmark criminal justice reform legislation that would truly scale back the number of people in prisons and jails.  Meanwhile, it has created hundreds of new crimes and dozens of enhanced penalties. Unlike many other states, Texas has yet to reduce the penalties for even low-level drug crimes.  Last year, the number of new felony cases filed in Texas reached a near all-time high, “driven primarily by an increase in drug possession cases,” according to the annual report of the Texas Judiciary.

July 8, 2019 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (0)

Summer reading (with a Fall cover date) from the American Journal of Criminal Law

Over the holiday week, I noticed that American Criminal Law Review already has published its Fall 2019 issue, and that this issue includes a number of articles that sentencing fans may want to add to their summer reading list: 

The Biased Algorithm: Evidence of Disparate Impact on Hispanics by Melissa Hamilton

Is Mass-Incarceration Inevitable? by Andrew Leipold

Defining the Proper Role of “Offender Characteristics in Sentencing Decisions: A Critical Race Theory Perspective by Lisa Saccomano

Cruel, Unusual, and Unconstitutional: An Originalist Argument for Ending Long-Term Solitary Confinement by Merin Cherian

Pandora’s Algorithmic Black Box: The Challenges of Using Algorithmic Risk Assessment in Sentencing by Leah Wisser

July 8, 2019 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Recommended reading, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Friday, July 05, 2019

"The rapid expansion of the US prison population since the 1970s might have contributed substantially to the ongoing increase in overdose deaths"

The quote in the title of this post is a line from this notable new Lancet Public Health study titled "Economic decline, incarceration, and mortality from drug use disorders in the USA between 1983 and 2014: an observational analysis."  This new study, authored by Elias Nosrati, Jacob Kang-Brown, Michael Ash, Martin McKee, Michael Marmot and Lawrence King, starts with this summary:

Background Drug use disorders are an increasing cause of disability and early death in the USA, with substantial geographical variation.  We aimed to investigate the associations between economic decline, incarceration rates, and age-standardised mortality from drug use disorders at the county level in the USA.

Methods In this observational analysis, we examined age-standardised mortality data from the US National Vital Statistics System and the Institute for Health Metrics and Evaluation, household income data from the US Census Bureau, and county-level jail and prison incarceration data from the Vera Institute of Justice for 2640 US counties between 1983 and 2014.  We also extracted data on county-level control variables from the US Census Bureau, the National Center for Health Statistics, and the US Centers for Disease Control and Prevention.  We used a two-way fixed-effects panel regression to examine the association between reduced household income, incarceration, and mortality from drug use disorders within counties over time.  To assess between-county variation, we used coarsened exact matching and a simulation-based modelling approach.

Findings After adjusting for key confounders, each 1 SD decrease in median household income was associated with an increase of 12·8% (95% CI 11·0–14·6; p<0·0001) in drug-related deaths within counties.  Each 1 SD increase in jail and prison incarceration rates was associated with an increase of 1·5% (95% CI 1·0–2·0; p<0·0001) and 2·6% (2·1–3·1; p<0·0001) in drug-related mortality, respectively.  The association between drug-related mortality and income and incarceration persisted after controlling for local opioid prescription rates.  Our model accounts for a large proportion of within-county variation in mortality from drug use disorders (R²=0·975).  Between counties, high rates of incarceration were associated with a more than 50% increase in drug-related deaths.

Interpretation Reduced household income and high incarceration rates are associated with poor health. T he rapid expansion of the prison and jail population in the USA over the past four decades might have contributed to the increasing number of deaths from drug use disorders.

UPDATE: I see now that this journal issue also has this related editorial titled "US mass incarceration damages health and shortens lives." Here is an excerpt:

The findings of this study support a plausible case that mass incarceration has added to the damaging effects of economic decline in increasing drug use and mortality. Incarceration can lead to drug addiction and death by feeding feelings of stigmatisation, by entrenching poor economic prospects, by breaking up families and communities, and by worsening individual mental health.

Over the past 40 years, US politicians of all stripes have sought to appear tough on crime, which has led to an over-reliance on incarceration across many types of offences and damaged public health.  Drastic changes to the justice system will be needed to seriously reduce the prison population.  Legislators need to repeal regressive sentencing laws that inflate the use of imprisonment (such as the three strikes law) and allow judges to pass sentences that are proportional to the crime.  Discriminatory policies and those that unfairly pull the poor into incarceration — such as money bail, plea bargaining, and arrests for crimes of poverty — must also be addressed.  Finally, chronic substance abuse should be confronted with treatment, not criminalisation.  As Natasa Gisev and colleagues' study shows, also in this issue, consistent opioid agonist treatment can reduce criminal involvement.  Drug misuse is a public health issue; more than a criminal one, and like many other petty crimes, it would be more effectively addressed by investment in social and community services, and not in steel bars.

July 5, 2019 in Data on sentencing, Drug Offense Sentencing, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (4)

Emphasizing why community supervision realities must be focal point for criminal justice reforms

As noted in this post, last month the the Council of State Governments Justice Center produced this dynamic report spotlighting that a large percentage of all state prison admissions "are due to violations of probation or parole for new offenses or technical violations" and that "technical violations, such as missing appointments with supervision officers or failing drug tests, account"for almost a quarter of all state prison admissions.  Fittingly, I have recently seen two commentaries highlighting this CSG report to stress the importance of criminal justice reform efforts giving attention to this piece of the system.  Here are links to these pieces and a snippet therefrom:

From The Hill, "Want to cut the prison population?  Start by tackling probation reform" by Nila Bala:

Sadly, imprisoning technical violators often drives them even deeper into the criminal justice system. With a prison sentence, individuals can lose their jobs, their homes, and their children, which are all of the important social supports they had formed in their community, making them more likely to return to crime.  Imprisoning individuals for technical violations is also costing taxpayers to the tune of $2.8 billion in incarceration costs.

We should save prison beds for those who have committed serious and violent offenses instead of for those who have broken curfew or failed to pay a probation fee. Instead of imprisoning technical violators, we should hold them accountable in the community in ways that do not harm public safety.  By eliminating prison terms for technical violations, or at least by capping the length of their prison stays, states can work to reduce their prison numbers in a significant way.  Along with the reform of supervision conditions, we can work to limit probation to those who really need it and to divert the many lower risk individuals away from the system altogether.

If there is one foundational value that we can adopt in the criminal justice system to change its ethos, it is human dignity. It should not fall by the wayside when people are released from prison.  It is even more important as we welcome individuals back into the social fabric of our communities. The Council of State Governments report guides states in asking how they can limit the supervision to prison pipeline.  With this data, states hold the potential to reform their supervision practices in ways that improve public safety, yield valuable cost savings, and respect the human dignity of all.

From USA Today, "As candidates search for criminal justice talking points, parole and probation reform should top list" by Megan Quattlebaum and Juliene James:

Instead of moving people away from prison, the use of parole and probation is a prime contributor to still stubbornly high incarceration rates. This undermines people’s ability to reintegrate into a free society after conviction.

The nation can and should focus efforts and resources on reducing new criminal behavior. By keeping people out of prison, we can better ensure that they keep their jobs, stay connected to their families and have a fair chance at contributing to society.

The nation's probation and parole disproportionately burdens poor and minority communities. Black Americans account for more than 30% of the people on probation and parole, despite being only 13% of the U.S. population. How can we expect people to live successful lives when they’re under the constant scrutiny of unforgiving criminal justice supervision?

Red and blue states alike have prison systems that are straining under the weight of incarcerating significant numbers of people who have violated their supervision.

State lawmakers need to start looking at their own statistics and asking whether probation and parole are serving their intended goals. What types of new offenses are responsible for supervision revocations? What practices and programs can discourage people under supervision from committing new crimes? What is a better way to handle technical violations?

A few prior recent related posts:

July 5, 2019 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

Wednesday, June 26, 2019

The Sentencing Project reports one of every 15 women in prison (nearly 7,000) serving life or virtual life sentence

Via email I received this morning this fact sheet from The Sentencing Project titled "Women and Girls Serving Life Sentences" (which lead me to see that, a few weeks ago, it also release this related fact sheet titled "Incarcerated Women and Girls"). Here is the start of this latest publication:

Nationwide one of every 15 women in prison — nearly 7,000 women — is serving a life or virtual life sentence.  One-third of them have no chance for parole, so their prospects for release are highly improbable.  The number of women serving life sentences has grown dramatically despite declining rates of violent crime among women.

As is the case with imprisonment generally, men comprise the overwhelming proportion of people in prison for life; 97% of lifers are men.  At the same time, the number of women serving life sentences is rising more quickly than it is for men.  The Sentencing Project collected life-imprisonment figures by gender in 2008 and 2016. W e find that during this nine-year period the number of women serving life sentences increased by 20%, compared to a 15% increase for men.

The rise in life imprisonment among women has also been far more rapid than the overall prison population increase among women for violent offenses.  Between 2008 and 2016 there was a 2% increase in the number of imprisoned women for a violent crime, but a 20% increase in the number of women serving a life sentence.  When analysis is limited to life-without-parole sentences, we see that the number of women serving these sentences increased by 41% compared to 29% for men.

June 26, 2019 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

Thursday, June 13, 2019

"Is ‘Abolish Prisons’ the Next Frontier in Criminal Justice?"

The question in the title of this post is the headline of this effective Bloomberg commentary authored by Bill Keller.  Here are excerpts:

Five years ago, when the activist and cable TV host Van Jones launched the #cut50 campaign to reduce U.S. prison populations by half, many mainstream justice reform watchers rolled their eyes at what seemed to be a reckless overreach.... Now the campaign has attracted an A-list of celebrities, philanthropists and candidates pursuing the Democratic presidential nomination. These days, when Jones gets pilloried, it’s as likely to be for being too compromising: Why stop short of #cut100?

People who follow criminal justice policy for a living say the fastest growing subset of the reform movement consists of abolitionists who say a system that is inherently racist and based on retribution should be pulled up by the roots. Not just prisons and jails, but most of the institutions of law enforcement and criminal justice.

“Abolition has become a rallying cry for the progressive wing of the justice reform movement,” Jeremy Travis told me. “NO NEW JAILS. NO MORE MONEY FOR POLICE. ABOLISH ICE. ABOLISH PRISONS.” Travis, who oversees criminal justice issues for the Arnold Ventures philanthropy, has spent a career in the system, most recently as president of the John Jay College of Criminal Justice in New York. (Disclosure: Laura and John Arnold, the founders of Arnold Ventures, are donors to the Marshall Project, my former employer.) “There is lots of energy behind this reframing of the ‘reform’ agenda,” Travis said.

Prison abolition has decades of antecedents, led by once-fringe figures like Angela Davis, the 1960s communist firebrand, and Ruth Wilson Gilmore, the subject in April of a sympathetic profile in the New York Times Magazine. More recently abolition has been embraced by younger Americans who grew up after violent crime peaked in the early 1990s, and has helped kindle some fundamental rethinking in the mainstream.

Like other radical ideas — Medicare for All, the Green New Deal — abolition means different things to different people. Most of those who rally to the cause do not advocate a world where no one answers your 911 call and serial killers are set loose. Abolition is an ideal — like, say, “repeal and replace.” The real debate is what should replace the current institutions.

“There is always going to be some role for prisons, but maybe 10 percent of what we do now,” said Martin Horn, a former New York State parole director, now a professor at John Jay. “I think we need police. We may not need as many as we now have, and we want to use them differently.”

Abolitionists generally start the conversation with two immense objectives. The first is devolving responsibility for public safety to local communities. (“Civilianizing safety,” some experts call it.) One reason New York City has reduced its crime rate while simultaneously slashing arrests, incarceration and law-enforcement overreach is that the city has a nonprofit network on the ground, some of it subsidized by the city, to combat violence and to help the formerly incarcerated safely reenter society.

Abolitionists’ other aim is to redistribute government spending from police and prisons to narrowing the underlying, crime-breeding inequalities of wealth and opportunity. They would instead invest in housing, education, jobs and health — a goal that seems remote in the current political environment.

What is new, says Elizabeth Glazer, director of New York City’s criminal justice office, is that many of the ideas that animate the abolitionists “are now finding their way into established criminal justice structures” — not just scholars and activists but also prosecutors questioning what crimes should be prosecuted and judges seeking out-of-court remedies....

To reformists who work in or with the system, the abolitionists can be exasperating — a case of the ideal being the enemy of the good. DeAnna Hoskins, president of JustLeadershipUSA, which mobilizes former prisoners to press for reform, points to the campaign that persuaded New York to close the jail complex on Rikers Island. The plan depends on building smaller, more humane jails in four boroughs to house a much-reduced population of prisoners. Along with the inevitable resistance of prospective new neighbors, the city now faces vocal opposition from abolitionists who object to any new jails on principle. “That’s just not realistic,” Hoskins said. “We’re not going to close Rikers on Monday and not have any type of detainment.” She added, “When we talk about abolishing prisons and abolishing law enforcement, it’s actually reducing the power and the reach of those entities.”

One of the liveliest abolition debates concerns parole and probation, which get less attention than incarceration but regulate the lives of 4.5 million Americans, twice as many as are confined in prisons and jails. Because a parolee can be returned to prison for a technical infraction such as a missed appointment or a trace of drugs in a urine sample, the parole-to-prison pipeline is a major feeder of mass incarceration....

Although polling is scarce, it’s a fair bet that “abolition” is not a voter magnet. The electorate may want the system to be less cruel and more rehabilitative, but voters also want a professional answering that 911 call when their kid gets shot — and not a member of neighborhood watch. The bipartisan coalition that has found common ground on criminal justice would be severely strained by such a lurch to the left. The conservative attack ads write themselves.

But in recent years, with crime near historic lows, the iniquities and unintended consequences of American punishment have so captured public concern that even President Donald Trump coughs up an occasional platitude about “giving our fellow citizens a chance at redemption.”

There is a place for higher aspirations, if only to keep moving the middle. Closing Rikers was a radical idea, until it wasn’t. The #cut50 campaign was mocked as unrealistic until people realized that it was essentially restoring incarceration to 1980s levels.  “I don’t think that in my lifetime we’ll ever abolish prisons, but it’s a really important question, why we put people in prisons,” said Travis, adding that the abolition debate is “a healthy tension that is really challenging the pace of reform and the status quo.”

A few prior related posts:

June 13, 2019 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

Tuesday, June 11, 2019

"Bail and Mass Incarceration"

The title of this post is the title of this paper recently posted to SSRN and authored by Samuel Wiseman.  Here is its abstract:

It is widely known that the United States has the highest incarceration rate in the developed world, and the causes and ramifications of mass incarceration are the subject of intense study.  It is also increasingly widely recognized that the high rates of pretrial detention, often linked to the use of money bail, are unjust, expensive, and often counterproductive.  But, so far, the links between money bail, pretrial detention, and mass incarceration have been largely unexplored.  Our criminal justice system relies primarily on plea bargains to secure convictions at a relatively low cost.  And, as shown by recent empirical work, the bail system, which results in high pretrial detention rates for indigent defendants, plays a significant role in incentivizing quick pleas, and leads to more convictions and longer sentences.

Releasing more defendants pretrial would generate more pretrial motions, lengthier plea negotiations, and more trials, and would thus raise the cost — in the form of prosecutors, public defenders, and judges — of convictions and imprisonment.  In other words, if we release significantly more defendants pretrial, we will have to either spend more on criminal justice or convict fewer people and punish them less severely.  In addition to inducing quick, inexpensive guilty pleas from defendants unable to post bond, money bail also plays a more subtle role in sustaining high incarceration rates.  Money bail, by its very nature, discriminates based on wealth, and thus provides a built-in sorting mechanism — politically weak low-income defendants are pushed into the quick-plea process, while wealthier defendants are able to obtain release and the increased access to more robust process that it affords.  If politically better-represented wealthy and middle-class defendants were detained, and thus subjected to at least some of the same pressures to plead guilty as indigent defendants, there would, in all likelihood, be more demand for reform.

This Article explores the role of bail in mass incarceration, concluding that opponents of mass incarceration should pay increased attention to the pretrial process as a locus of reform.  Relatedly, it analyzes the likely impact of the bail–plea bargain link on future bail reform — which, of course, serves important interests beyond reducing the prison population, such as fairness and the avoidance of wrongful convictions.

June 11, 2019 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (0)

Thursday, June 06, 2019

Spotlighting the enduring business of jails

Keith Humphreys has this notable new Washington Post piece headlined "How jails stay full even as crime falls."  Here are excerpts:

Crime has fallen dramatically in recent decades.  The number of people in jail for committing crimes hasn’t.

New Bureau of Justice Statistics data reveal that jails held 745,200 inmates in 2017, virtually identical to the 747,500 they held in 2005, and significantly higher than the 584,400 they held in 1998.  How does the correctional system keep jails full when there just aren’t as many crimes as there used to be?  By locking up an increasing number of people who are awaiting trial and could well be innocent.

The number of individuals held in jail while awaiting trial has soared 45.3 percent, from 331,800 in 1998 to 482,000 in 2017.  By contrast, the number of convicted inmates is almost the same as it was 20 years ago (252,600 in 1998 vs. 263,200 in 2017).  About 95 percent of the jail population’s growth is thus accounted for by people who haven’t been convicted of a crime.

By jailing more and more people who are awaiting trial, the criminal justice system can keep jails full no matter how much crime falls.  This may be seen as a good thing by the hundreds of thousands of people who work in jails, the companies that supply services to jails (i.e., food), and the communities that value correctional facilities as a form of economic stimulus.  But it’s a world-class bug from the point of view of innocent people who are jailed while awaiting trial, not to mention taxpayers.

Given the internal incentives to keep jails full, change will have to come from outside the criminal justice system.  The most obvious lever available, which is picking up steam in multiple states, is bail reform.  States could simply mandate that individuals accused of low-level crimes are automatically released on their own recognizance before trial. Jurisdictions that have experimented with this approach have found rates of appearing at trial in excess of 98 percent....

States, cities and counties should also consider closing or at least downsizing jails.  If the system is going to find ways to keep every bed full regardless of the crime rate, cutting the number of beds available may be the only way to prevent an increasing number of people accused of crimes from being punished as harshly as those who are actually convicted.

June 6, 2019 in Data on sentencing, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Thursday, May 23, 2019

Making the case, now a quarter century after the 1994 Crime Bill, for the Reverse Mass Incarceration Act

Lauren-Brooke Eisen and Inimai Chettiar, who helped draft of the Reverse Mass Incarceration Act back in 2015 (first discussed here), have this new New York Daily News commentary making the case for this approach to prison reform under the headline "Joe Biden, Cory Booker, the 1994 Crime Bill and the future: How to unwind American mass incarceration."  I recommend the full piece, and here are excerpts:

As the 2020 field of candidates gets more crowded, Democrats have started weaponizing one of the most influential pieces of criminal justice legislation in the last 50 years — the 1994 Crime Bill.  Joe Biden, a key author of the bill when he served in the Senate, has doubled down, while his primary opponents correctly point to how it helped contribute to mass incarceration.

The debate is important, but an exclusive focus on the past underplays a crucial question: Moving forward, how will the country end mass incarceration that decades of federal funding helped create?  And what are presidential candidates’ plans to reverse failed policies?

The size of the U.S. prison system is unparalleled.  If each state were its own country, 23 states would have the highest incarceration rates in the world.  People of color are vastly overrepresented. African Americans make up 13% of the country’s population but almost 40% of the nation’s prisoners.

In response, Sens. Cory Booker (D-N.J.) and Richard Blumenthal (D-Conn.), along with Rep. Tony Cárdenas (D-CA), have just reintroduced the Reverse Mass Incarceration Act.  The bill, which they first introduced last Congress, provides financial incentives to states (which house 88% of America’s prison population) to reduce imprisonment rates.  It starts to unwind the web of perverse incentives set in motion by the Crime Bill and other laws.

To receive federal funding awards under the Act, states must reduce the imprisonment rate by 7% every three years and keep crime at current record lows.  States can choose their own path to achieve those goals, since the legislation sets targets instead of dictating policy....

The federal government has a long history of using federal funds to shape the criminal justice landscape.  For example, a bill passed in 1968 — amid concerns over rising crime rates — set up grant programs that allocated money to states to be used for any purpose associated with reducing crime.  Over two years, it authorized $400 million (roughly $2.7 billion in today’s dollars) in grants.  Two decades later, the Anti-Drug Abuse Act of 1986 played a central role in government policy in the War on Drugs by reinstating mandatory minimum sentences for drug possession, establishing $230 million (nearly $500 million today) in grants to fund drug enforcement while not permitting funding of drug prevention programs.

The 1994 Crime Bill extended that trend. It promised $8 billion ($13 billion in today’s dollars) to states if they adopted “truth-in-sentencing” laws, which required incarcerated individuals to serve at least 85 percent of their sentences.  A study by the Urban Institute found that between 1995 and 1999, nine states adopted truth-in-sentencing laws for the first time, and 15 states reported the Crime Bill was a key or partial factor in changing their truth-in-sentencing laws.  By 1999, a total of 42 states had such laws on the books....

Over the past decade, states have taken steps to move away from harsh sentencing laws. And Congress has made reforms to sentencing at the federal level, including the FIRST STEP Act, passed last year.

Certainly, one piece of federal legislation alone will not end mass incarceration, just as the 1994 Crime Bill was not solely responsible for causing it. Innovative changes at the local level must continue....  But the Reverse Mass Incarceration Act is one of the strongest steps the federal government can take to end mass incarceration.  By providing financial incentives to help power important changes at the local level, it’s a national bill that would help set a tone across the country.  It will encourage states to orient criminal justice strategies across the country toward more just and fair outcomes.

A few prior related posts:

May 23, 2019 in Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (7)

Tuesday, May 21, 2019

Shouldn't it now constitutional problematic for extreme LWOP sentences to be preserved after legislative changes to three-strikes laws?

The question in the title of this post might be directed to some important federal cases in the wake of the FIRST STEP Act.  But this morning the question comes to mind due to this new AP article discussing state sentencing changes not made retroactive in Washington.  The article is headlined "‘3 strikes’ sentencing reform leaves out Washington inmates," and here are the disconcerting details:

A small group of inmates, disproportionately black, are set to stay in Washington state prisons for life — left out of the latest in a multi-year wave of reforms easing tough-on-crime “three strikes” laws around the U.S.

At least 24 states including Washington passed such laws during the 1990s, embracing tough-on-crime rhetoric. But nearly half have since scaled them back amid concern that habitual but less-violent offenders were being stuck behind bars for life with hardcore felons.

Washington’s 1993 three-strikes law was among the first and stands out as among the nation’s strictest. But lawmakers targeted it for reform this year with legislation removing second-degree robbery — generally defined as a robbery without a deadly weapon or significant injury — from the list of crimes qualifying for cumulative life sentences.

But while the original reform included a retroactive clause, making inmates sentenced under the old law eligible for resentencing, an amendment pushed by a prosecutors’ group cut out retroactivity. Washington governor and Democratic presidential contender Jay Inslee signed the changes into law April 29.

That means about 62 inmates convicted of second-degree robbery will be left serving life sentences, according to state records, even after judges stop “striking out” new offenders convicted of the same crimes. About half are black, despite African Americans making up only 4% of Washington’s population.

Under the original bill, the inmates with a robbery “strike” would have had the opportunity to have their life sentences re-examined by judges — but now they won’t. Supporters of the amendment have said even less-serious robberies can leave emotional scars, and that prosecutors might have set aside more serious charges because they knew second-degree robbery convictions would mean life in prison for those offenders.

But inmates among the 62 described frustration that offenders with similar records may face drastically shorter sentences going forward. “It’s just wrong on its face, to make people rot in prison for the rest of their life on a sentence that doesn’t even exist anymore,” said John Letellier, 67, whose 1999 fast food restaurant robbery earned him his third strike.

The push to take out the reform’s retroactivity clause emerged from the Washington Association of Prosecuting Attorneys, a group that represents prosecutors. Russell Brown, the group’s director, said he reviewed most of the cases listing second-degree robbery as the third strike, and believed that prosecutors in many probably refrained from seeking more serious charges because of the guarantee the charge — known in legal circles as “Rob 2” — would count as a third strike. But he acknowledged that he never confirmed his suspicions with any of the prosecutors who handled the cases....

In Washington, second-degree robbery has one of the lowest seriousness levels of any crime on the three-strikes list, hypothetically encompassing anything from demanding money from a clerk to snatching a purse. At least 11 states including Washington have eased their three strikes laws since 2009, often removing property crimes from “strike” lists or restoring discretion to judges over previously mandatory life sentences.

But lawmakers have also often been reluctant to make the three-strikes reforms retroactive: Out of the 11 only California has included such a clause...

In phone and email interviews, inmates among the 62 in Washington described how the reform raised their hopes — and the amendment dashed them. Among them is Devon Laird, age 54 and serving life on a robbery third strike. Convicted of snatching a wallet from an elderly man outside a drugstore in 2007, Laird’s court records include convictions for violent crimes in his early 20s, but also testimony portraying him as attempting to escape a past that included being stabbed at 14 and shot twice before age 21. “When they said it wasn’t retroactive, it really set in on me that, man, I got life,” said Laird.

Cheryl Lidel, 60, is also serving life for a 2010 robbery after being convicted of other robberies and theft. She described her crimes as driven by substance abuse that began shortly after she was sexually assaulted as a young girl. In charging documents for her third-strike robbery, prosecutors said Lidel was going through heroin withdrawal when she robbed a Subway blocks from a police station, sticking her hand in her pocket to imitate a gun. She then asked a taxi to take her to an area known for drug dealing. “The first time I came here I was 23 years old, and in March of this year I turned 60,” Lidel said.

While it’s hard to say exactly how much time any of the 62 would have faced without their robbery charges counting as strikes, few would have faced life.... According to state guidelines, the maximum for second-degree robbery, given to the highest-level offenders, is less than seven years....

Some of the 62 might not have received shorter sentences because of other serious crimes on their record, including at least eight with early robbery convictions but a final strike for murder. But nearly half the inmates on the list received a third strike only for some form of robbery.

The bill’s sponsor, Democratic Sen. Jeannie Darneille, said before the state’s legislative session ended that she did not want to change her bill with the amendment killing retroactivity but that it would have been at risk of failing without support from law enforcement or prosecutors because lawmakers would have feared being labeled soft on crime.

The particulars of this story are all too familiar, and long-time readers know that I have long argued that the standard presumption in favor of finality for criminal judgments need not and should not be elevated over other critical criminal justice interests when a defendant seeks only to modify an ongoing prison sentence based on new legal developments.  (My full perspectives on "sentence finality" and retroactivity appear in a law review article, "Re-Balancing Fitness, Fairness, and Finality for Sentences", and in some prior posts reprinted below).   

Moreover, as the question in the title of this post highlights, I think these issues have constitutional implications when extreme sentences are in play.  Notably, many state courts have ruled that it would be unconstitutional to carry out a death sentence for a person long ago sentenced for murder after a state legislature prospectively abolished the death penalty.  Given that the Supreme Court has in the last decade applied my capital Eighth Amendment precedents to the application of LWOP sentences, it seems reasonable to argue that state courts should find it unconstitutional to not reconsider an extreme LWOP sentence for a person long ago sentenced to LWOP on a basis that a state legislature has prospectively abolished.

(Significantly, and in response to the concerns so often raised by prosecutors in this retroactivity setting, a narrow version of the constitutional claim here might be just that a past LWOP sentence needs to be reexamined, not automatically changed.  Under such an approach, prosecutors would be able to argue against a sentence change by bringing forward evidence that the defendant could and would have gotten an LWOP sentence on grounds other than those changed by the legislature.  But at the very least, I think the constitutional norm should be reexamination of now-changed sentences, rather than their harsh preservation. )

Some (of many) prior posts on sentencing finality:

May 21, 2019 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Thursday, May 16, 2019

Brennan Center releases great new collection of essays titled "Ending Mass Incarceration: Ideas from Today's Leaders"

Back in late April 2015, roughly 18 months before a big election, the Brennan Center for Justice released this fascinating publication (running 164 pages) titled "Solutions: American Leaders Speak Out on Criminal Justice."  That 2015 publication had nearly two dozen leaders, mostly prominent political figures with big histories and/or plans, discussing a variety of criminal justice reform topics from a variety of perspectives.  In my original post about this great 2015 collection, I expressed concern that former Prez Bill Clinton was tasked with authoring the forward and that former Prez George Bush was not a contributor to the collection.  Others noted, quite rightly and tellingly, that Hillary Clinton's essay in this collection was filled "with platitudes and self-aggrandizing references" within a "shallow discussion" that was "especially embarrassing compared to Ted Cruz's."  I also noted here that the seven GOP political leaders included in the collection had set forth an array of reform priorities and proposals that made me optimistic for potential future bipartisan reforms.

Fast forward four years, and the Brennan Center for Justice is at it again.  Specifically, this morning it just released a 2019 version of timely criminal justice essays, this time under the title "Ending Mass Incarceration: Ideas from Today’s Leaders."  Interestingly, this new must-read collection is a bit shorter (only 112 pages), and it feels a lot more titled toward the left.  Specifically, as noted above, the 2015 collection had essays from seven prominent GOP politicians as well as two additional essays from past or present leaders of right-leaning advocacy groups (not to mention tough-on-crime Democrats like both Clintons and then-VP Joe Biden).  The new collection of essays, though it does include pieces by Jared Kushner, Mark Holden and Holly Harris, fails to have any essays from any elected Republicans or would-be presidential aspirants other than those running for the Democratic nomination.  Given that then-VP Joe Biden appeared in the last volume, I would have liked to now see an essay by current VP Mike Pence on these topics.  Notably, interesting Dem voices like Cory Booker and Kamala Harris got a chance to do repeat performances in this latest volume, but interesting GOP folks like Rand Paul and Rick Perry do not.  And many folks running for Prez on the Dem side are included, but we do not hear from folks like William Weld or John Kasich or any other distinctive right leaning voices.

I would not be surprised if the Brennan Center tried to get more GOP voices involved and ultimately had their requests for contributions denied.  So my goal here is not to fault the efforts in putting together this still very important volume.  I just think it important and significant (and perhaps telling) that the essays here do not appear nearly as bipartisan as they did back in 2015.  But that reality makes this collection no less significant, and I am looking forward to finding time soon to read (and perhaps blog about) all these essays here.

Prior related posts about 2015 volume:

UPDATE: I now see that the New York Times has this good article about this new publication under the bad headline "Left and Right Agree on Criminal Justice: They Were Both Wrong Before." (It is a bad headline because the "Right" is not really fully captured in this collection.)  Here are excerpts from the Times piece:

Of the more than 20 politicians and activists who contributed essays, all but three framed the issue explicitly as a matter of racial justice, emphasizing the deep disparities in a system in which people of color are many times more likely than white people to be incarcerated. Nine called for reducing or abolishing mandatory minimum sentences.  Eight called for eliminating cash bail.  Seven called for alternatives to prison for nonviolent crimes....

No one in the 2015 report suggested decriminalizing marijuana, but Mr. Booker, Senator Elizabeth Warren of Massachusetts and former Representative Beto O’Rourke of Texas did in the new one, and other candidates have suggested it elsewhere.  In 2015, limiting employers’ ability to ask about criminal history was the central proposal from Cornell William Brooks of the N.A.A.C.P.  This year, Mr. Booker, Mr. Kushner, Mr. O’Rourke and Senator Sherrod Brown of Ohio all called for it.

The new centerpieces include eliminating cash bail and getting rid of mandatory minimum sentences altogether.  Senator Kirsten Gillibrand of New York suggested abandoning prison sentences for low-level offenses.  Senator Bernie Sanders of Vermont, Ms. Warren and Mr. O’Rourke proposed abolishing for-profit prisons, which, Mr. Sanders wrote, “have a greater interest in filling the pockets of their shareholders by perpetuating imprisonment” than in rehabilitation.

May 16, 2019 in Recommended reading, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Saturday, May 11, 2019

New issue of Crime and Justice covers "American Sentencing — What Happens and Why?"

I just received an email reporting that the latest issue of Crime and Justice is in print, and all sentencing fans will want to get access to this volume. This issue has 10(!) amazing articles put together by editor Michael Tonry around the topic of "American Sentencing — What Happens and Why?." Here is the list of titles and authors (and clicking through here enables seeing abstracts for each):

May 11, 2019 in Federal Sentencing Guidelines, Recommended reading, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (0)

Wednesday, May 08, 2019

"Does our county really need a bigger jail?"

Pretrial_detention_growth450x337The question in the title of this post is the title of a new Prison Policy Initiative report that seeks to provide cities and counties with a guide for preventing unnecessary jail expansion.  This press release about the report reviews the essentials (and provides a link):

The report, Does our county really need a bigger jail?, lays out 33 questions that local decision-makers should ask in evaluating proposals for new or bigger jails.  “It’s very common today for jails to be overcrowded, because the number of people in jails nationwide has tripled in the last 30 years,” said report author Alexi Jones. “But in too many counties, jail growth is rooted in known policy failures like an overreliance on money bail. Local policymakers owe it to their constituents to find out if there is a better fix to overcrowding than just building a new or bigger jail.”

The report’s 33 questions for policymakers include:

  • On a typical day, how many people are confined in the existing jail who have not been convicted?
  • How many people in the county are incarcerated because they cannot afford to pay fines and fees?
  • What specialized “diversion” courts and treatment programs is the county using to divert people struggling with substance use and mental illness into more effective treatments than jail?
  • Do official cost estimates for building new jail space include not only the cost of construction, but the cost of debt service on the loan, annual operation costs, and collateral costs such as adverse impacts on public health?

“Building new jail space typically costs tens of millions of dollars or more, even as other options that are both more cost-effective and more compassionate are ignored,” said Jones. “If policymakers can’t answer these questions about why more jail space is necessary, they should not be undertaking jail expansion.”

For all 33 questions, the report also offers a set of alternatives and best practices, including:

  • Releasing more pretrial defendants on their own recognizance, and investing in pretrial services to help them make their court dates;
  • Requiring judges to set fines and fees based on a defendant’s ability to pay;
  • Investing in specialized “problem-solving” courts for people with mental health or substance use disorders that serve as true alternatives to jail time.

The report’s recommendations are accompanied by helpful graphics, as well as examples of local and state governments successfully implementing alternatives to jail expansion. “We know that the answer to mass incarceration begins at the local level,” said Jones. “That’s why it’s critical to help cities and counties think beyond jail expansion when it comes to improving public safety.”

May 8, 2019 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Wednesday, May 01, 2019

Terrific vision and plans in "Beyond Guilt," a new project of the Ohio Justice & Policy Center

Cropped-bg_ojpc_gavelI am so very pleased to see the announcement of a great new project by a leading criminal justice reform group in the Buckeye State. Specifically, the Ohio Justice & Policy Center (OJPC) has just launched "Beyond Guilt," which its website says "aims to do for over-punished prisoners who admit guilt what innocence projects have for wrongfully convicted persons who claim actual innocence."  I am especially drawn to the "Strategies" discussion set out in the new project's "Our Mission" statement, which I will quote here:

Beyond Guilt will seek to do for over-punished prisoners who admit guilt what innocence projects have done for wrongfully convicted persons who claim actual innocence.  Beyond Guilt is OJPC’s answer to criminal legal system reform efforts that focus narrowly on a more palatable side of the reform movement — freeing innocent prisoners and people convicted of low-level, non-violent offenses.  Unfortunately, current reform efforts leave many behind, particularly individuals convicted of more serious offenses, including violent crimes. Beyond Guilt will advance reform initiatives to include people who have paid their debt to society for serious crimes and can safely be released.  The project will do so in four ways:

First, Beyond Guilt will identify unfairly sentenced Ohio prisoners who illustrate widespread problems in our criminal legal system (e.g. imposition of life sentences for felony-murder; life without parole sentences for youthful offenders; broken parole systems that refuse to provide a second chance) and then fight for their release.  The project will represent individuals who have served significant portions of their sentences and can demonstrate rehabilitation within the prison walls and who have the skills and support systems on the outside to continue the process of rehabilitation once they are released.  Whenever possible, Beyond Guilt will partner with prosecutors, law enforcement officers and crime survivors who can help convince courts to release prisoners through various avenues.

Second, Beyond Guilt will lift up the stories of the people it represents to humanize these individuals and other prisoners like them whom society writes off for committing violent crimes.  The project will tell their stories through a variety of means, including traditional media, social media, film and a blog hosted on a dedicated Beyond Guilt website.  The project will also facilitate in-person meetings between its incarcerated clients and legislators who can benefit from seeing, face to face, the impact of overly punitive sentencing laws.  The goal is to enable our clients to tell their own stories, to be living breathing testaments to the power of people to change, and to become disciples, who through their stories, can inspire others to care about those that they left behind in prison.

Third, Beyond Guilt will partner with its clients — both those who are freed and those who remain incarcerated — to push for reform of Ohio sentencing laws that overly punish people who have committed serious crimes and parole systems that keep offenders locked up for longer than they need to be.

Fourth, Beyond Guilt will seek to build a national network of similar projects that work to reform sentencing practices for people convicted of violent crimes and to promote evidence-based ways to reduce lengthy sentences without compromising public safety.  Beyond Guilt will partner with law schools and public defender offices to build this network and with community and faith-based groups who work with returning citizens who need assistance once released.

May 1, 2019 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Noting the encouraging story of reduced rates of incarceration for African Americans

Charles Lane and Keith Humphreys have this nice new Washington Post commentary spotlighting one notable part of the last BJS numbers on prison populations (discussed here).  The piece is headlined "Black imprisonment rates are down.  It’s important to know why."  Here are excerpts:

The imprisonment rate for African Americans is falling, has been falling since 2001 and now stands at its lowest level in more than a quarter-century.  These remarkable data are hidden in plain sight, in the latest annual statistical survey of prisoners issued last week by the Bureau of Justice Statistics.

Comparing 2017 survey results with prior years shows that the African American male imprisonment rate has dropped by a third since its peak and is now at a level not seen since 1991.  African American women’s rate of imprisonment has dropped 57 percent from its peak and is now at a 30-year low.

How big a change does this represent? Had African American imprisonment held steady at its highest point (2001 for men, 1999 for women) instead of declining, about 300,000 more African Americans would be in prison right now.  Instead they are free to live in the community, to raise families, to hold jobs, to be healthy and happy.

Dramatic failures command attention and therefore often drive efforts at policy reform and innovation. Yet success can be just as informative. It’s just as vital to understand why black imprisonment rates have fallen as it was to understand why they rose.  Yet, so far, there is still more discussion about the latter than the former.

It’s time for the debate to catch up with the data.  Collapsing crime rates in black neighborhoods surely reduced imprisonment rates, but how did that increase in public safety come about?  Did programs to make policing and sentencing more equitable also contribute?  Do prisoner reentry programs deserve any credit for reducing incarceration, and if so, which ones?  What is being done right that should be expanded to accelerate the positive trends?

Obviously, there is a risk of feeding complacency in taking note of — and celebrating — the decrease in black imprisonment. Yet to do otherwise risks feeding defeatism in the face of clear evidence that progress is possible. It also would miss an opportunity to break down racist myths: The declining imprisonment rate for African Americans definitively rebuts any notion of intractable black criminality....

Undeniably, today’s still-high and still-disproportionate rate of black imprisonment represents the appalling legacy of institutional racism.  Equally undeniably, the continuing presence of about 1.5 million people in state and federal prisons poses a challenge to public policy and the nation’s conscience.  But in important respects, the situation is getting better.  We need to say so: The nation’s reformers could use the recognition and the inspiration.

May 1, 2019 in Data on sentencing, Detailed sentencing data, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

Tuesday, April 30, 2019

Spotlighting that, within top incarceration nation, it is not quite clear which state tops the per capital incarceration list

A helpful reader sent me this notable little local article headlined "Is Louisiana still the incarceration capital of the U.S.?". The piece serves as a useful reminder that data on incarceration (like data on just about everything in criminal justice systems) is subject to some interpretation. Here are excerpts:

For close to a year, Gov. John Bel Edwards has championed that Louisiana has lost its title as the incarceration capital of the United States after law changes he backed got through the Louisiana Legislature in 2017.  “I made a promise that, by the end of my first term, Louisiana would not have the highest incarceration rate in the nation,” Edwards said last June at a press conference.  “We have fulfilled that promise to Louisiana.”

Yet a report released by the Vera Institute of Justice last week [blogged here] called that victory into question.  The nonprofit, a leader in criminal justice research, concluded that Louisiana still had the top of incarceration rate in the country at the end of 2018, five months after the governor announced the state had lost that title to Oklahoma.

The discrepancy appears to be not so much about Louisiana’s prison population, but how prisoners in Oklahoma are counted.  Those who believe Oklahoma has the highest incarceration rate count hundreds of people who have been sentenced to prison time -- but are still in county jails and haven’t become part of the prison system officially yet -- as part of that state’s prison population. Without those inmates included in the prison population count, Louisiana still has the highest incarceration rate.

As of the end of December 2018, the number of people waiting to enter the Oklahoma prison system at county jails totaled 753.  If they’re included in the state count, Oklahoma’s incarceration rate is 702 people per 100,000 residents, higher than Louisiana’s rate of 695. If they aren’t included, Oklahoma’s incarceration rate is 683.

Pew Charitable Trusts and the Edwards administration use the higher Oklahoma count, therefore concluding that Louisiana has fallen to second place. Vera Institute used the lower count. “It seems like right now, the two states are really close . If a statistician was handling this question, they would say something like they are tied,” Jacob Kang-Brown, one of the authors of the Vera Institute report, said in an interview Thursday (April 25)....

Another nonprofit organization, the Prison Policy Initiative, concluded that Oklahoma passed Louisiana as the state with the highest incarceration rate back in 2016, before Louisiana approved its package of criminal justice changes in 2017.  That analysis took a wider view of incarceration. It counted not just state prisoners but also juveniles in custody, people in local jails and people from Louisiana in federal custody.  That report came out last year, prompting the Tulsa World newspaper to declare Oklahoma the prison capital of the country.

April 30, 2019 in Data on sentencing, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2)

Thursday, April 25, 2019

BJS releases "Prisoners in 2016" and "Jail Inmates in 2017" reporting notable declines in incarcerated persons

As reported in this press release, "from 2007 to 2017, incarceration rates in both prisons and jails decreased by more than 10%, according to reports released today by the Bureau of Justice Statistics." Here is more from the release:

Over a decade, the incarceration rate among state and federal prisoners sentenced to more than a year dropped by 13%, from 506 prisoners per 100,000 U.S. residents in 2007 to 440 prisoners per 100,000 in 2017. The prison incarceration rate also dropped 2.1% from 2016 to 2017, bringing it to the lowest level since 1997. The jail incarceration rate decreased by 12% from 2007 to 2017, from 259 to 229 jail inmates per 100,000 U.S. residents, but did not decline from 2016 to 2017.

The U.S. prison population was 1.5 million prisoners at year-end 2017, and the population of jail inmates in the U.S. was 745,000 at midyear 2017. There were 1.3 million prisoners under state jurisdiction and 183,000 under federal jurisdiction. From the end of 2016 to the end of 2017, the number of prisoners under federal jurisdiction declined by 6,100 (down 3%), while the number of prisoners under state jurisdiction fell by 12,600 (down 1%).

By citizenship status, non-citizens made up roughly the same portion of the U.S. prison population (7.6%) as of the total U.S. population (7.0%, per the U.S. Census Bureau). This is based on prisoners held in the custody of publicly or privately operated state or federal prisons. Among racial groups, the imprisonment rate for sentenced black adults declined by 31% from 2007 to 2017 and by 4% from 2016 to 2017, the largest declines of any racial group.

However, the imprisonment rate for sentenced black males was more than twice the rate for sentenced Hispanic males and almost six times that for sentenced white males (2,336 per 100,000 black males compared to 1,054 per 100,000 Hispanic males and 397 per 100,000 white males). The rate for sentenced black females was almost double that for sentenced white females (92 per 100,000 black females compared to 49 per 100,000 white females).

Among state prisoners sentenced to more than one year, more than half (55%) were serving a sentence for a violent offense at year-end 2016, the most recent year for which state data are available. An estimated 60% of blacks and Hispanics in state prisons were serving a sentence for a violent offense, compared to 48% of whites. At the end of fiscal year 2017, nearly half of all federal prisoners were serving a sentence for drug trafficking.

Privately operated prison facilities held 121,400 prisoners, or 8% of all state and federal prisoners, at year-end 2017. Inmates in these facilities were under the jurisdiction of 27 states and the Bureau of Prisons. The number of federal prisoners held in private facilities decreased by 6,600 from 2016 to 2017 (down 19%).

In 2017, almost two-thirds (482,000) of jail inmates were unconvicted, awaiting court action on a charge, while the rest (263,200) were convicted and either serving a sentence or awaiting sentencing.

The demographic characteristics of persons incarcerated in jails shifted from 2005 to 2017. During this period, the percentage of the jail population that was white increased from 44% to 50%, while the percentage that was black decreased from 39% to 34%. Hispanics accounted for 15% of all jail inmates in 2017, the same as in 2005. Asians accounted for less than 1% of jail inmates in both years. In 2017, the jail incarceration rate for blacks was more than 3 times the rate for whites and Hispanics, and more than 20 times the rate for Asians.

Jails reported 10.6 million admissions in 2017, which represented no change from 2016 but a 19% decline from 13.1 million in 2007. The overall weekly inmate turnover rate was 54% in 2017, while the estimated average time spent in jail before release was 26 days.

The full BJS reports are chock full of additional important data points, and are excitingly titled "Prisoners in 2017" (running 44 pages) and "Jail Inmates in 2017" (running 18 pages).  Especially because I am busy with end-of-semester tasks, I would be grateful to hear from others about any particular data points within these documents that seem especially notable and important.  Helpfully, the Sentencing Project has this release about the data with these interesting observations:

Analysis of the new data by The Sentencing Project reveals that:

  • The United States remains as the world leader in its rate of incarceration, locking up its citizens at 5-10 times the rate of other industrialized nations. At the current rate of decline it will take 75 years to cut the prison population by 50%.
  • The population serving life sentences is now at a record high. One of every seven individuals in prison — 206,000 — is serving life. 
  • Six states have reduced their prison populations by at least 30% over the past two decades — Alaska, Connecticut, California, New Jersey, New York, and Vermont. 
  • The rate of women’s incarceration has been rising at a faster rate than men’s since the 1980s, and declines in recent years have been slower than among men. 
  • Racial disparities in women’s incarceration have changed dramatically since the start of the century.  Black women were incarcerated at 6 times the rate of white women in 2000, while the 2017 figure is now 1.8 times that rate. These changes have been a function of both a declining number of black women in prison and a rising number of white women. For Hispanic women, the ratio has changed from 1.6 times that of white women in 2000 to 1.4 times in 2017.

April 25, 2019 in Data on sentencing, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

Wednesday, April 24, 2019

Vera Institute documents another drop in the US prison population in 2018

The Vera Institute of Justice today released this notable new "Evidence Brief" titled simply "People in Prison in 2018."  Here is part of this document's summary:

Effective advocacy and policy making require up-to-date information. V era Institute of Justice (Vera) researchers collected data on the number of people in state and federal prisons on December 31, 2018 to provide timely information on how prison incarceration is changing in the United States.  This report fills a gap until the Bureau of Justice Statistics (BJS) releases its 2018 annual report — likely in early 2020 — which will include additional data, such as population breakdowns by race and sex.

At the end of 2018, there were an estimated 1,471,200 people in state and federal prisons, down 20,000 from year-end 2017 (1.3 percent decline).  There were 1,291,000 people under state prison jurisdiction, 16,600 fewer than in 2017 (1.3 percent decline); and 179,900 in the federal prison system, 3,200 fewer than in 2017 (1.7 percent decline).

The prison incarceration rate in the United States was 450 people in prison per 100,000 residents, down from 458 per 100,000 in the previous year, representing a 1.8 percent drop. This brings the rate of prison incarceration down 15.2 percent since its peak in 2007.

The overall decline in the national prison incarceration rate was driven by the large decrease in the number of people in federal prisons, as well as greater than 5 percent declines in incarceration rates in seven states.  Of those states, a few have large prison populations, such as Missouri, South Carolina, New York and North Carolina.  However, the declines were not universal.  Mass incarceration is still on the rise in some states, such as Indiana, Texas, and Wyoming.

Vera has some visualizations and other related materials at this webpage.  The Marshall Project has this article about Vera's findings providing a broader context for the data and including these important points:

Advocates for prison reform have come to rely on Vera’s data as the federal reports are increasingly outdated. The Bureau of Justice Statistics compiles a comprehensive data set on people in prison, which includes demographic information. But because of budget cuts the latest report, released in 2018, covers prisoners in 2016. The 2017 data is set to be released on Thursday.

Timely data on the people in prison helps analysts and legislators understand where criminal justice changes are having the biggest impact, said Jacob Kang-Brown, one of the study’s authors. “This report shows whether states are following through and reducing the number of people that are locked up in prison,” he said, and which are “bucking the trend.”

April 24, 2019 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Tuesday, April 23, 2019

"Justice Denied: The Harmful and Lasting Effects of Pretrial Detention"

The title of this post is the title of this notable new "evidence brief" from the Vera Institute of Justice.  Here is its overview:

The pretrial population — the number of people who are detained while awaiting trial — increased 433 percent between 1970 and 2015.  This growth is in large part due to the increased use of monetary bail.  But pretrial detention has far-reaching negative consequences.  This evidence brief presents information on the way that pretrial detention is currently used and summarizes research on its impacts.  These studies call into question whether pretrial detention improves court appearance rates, suggests that people who are detained are more likely to be convicted and to receive harsher sentences, and indicate that even short periods of detention may make people more likely to become involved with the criminal justice system again in the future.  The brief concludes by highlighting strategies that some jurisdictions have employed to reduce the use of monetary bail and increase pretrial release.

April 23, 2019 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (2)

Monday, April 22, 2019

"The case against solitary confinement"

The title of this post is the headline of this lengthy and effective Vox piece from last week.  I call the piece effective in part because, in addition to being well-structured and well-written, it includes lots and lots of links.  Here is how the piece starts (with links retained):

Albert Woodfox was held in solitary confinement for more than 40 years in a Louisiana prison before being released in 2016, when he was 69 years old.  In his book Solitary, published last month, Woodfox writes that every morning, “I woke up with the same thought: will this be the day? Will this be the day I lose my sanity and discipline? Will I start screaming and never stop?”

Thousands of people — at least 61,000 on any given day and likely many thousands more than that — are in solitary confinement across the country, spending 23 hours per day in cells not much bigger than elevators.  They are disproportionately young men, and disproportionately Hispanic and African American.  The majority spend a few months in it, but at least a couple of thousand people have been in solitary confinement for six years or more. Some, like Woodfox, have been held for decades.

Solitary confinement causes extreme suffering, particularly over prolonged periods of months or years.  Effects include anxiety, panic, rage, paranoia, hallucinations, and, in some cases, suicide.

The United Nations special rapporteur on torture, Juan E. Méndez, deemed that prolonged solitary confinement is a form of torture, and the UN’s Mandela Rules dictate that it should never be used with youth and those with mental or physical disability or illness, or for anyone for more than 15 days.  Méndez, who inspected prisons in many countries, wrote, “[I]t is safe to say that the United States uses solitary confinement more extensively than any other country, for longer periods, and with fewer guarantees.”

Many practices in the US criminal justice system are harsh, ineffective, even absurd, from the widespread use of money bail to detain unconvicted people to extremely long sentences and parole terms, and a host of other outrages.  But placing people in solitary stands out as a violation of human rights.

Well over a century ago in the US, the practice fell out of favor, partly because of its capacity for psychological harm. Yet starting in the 1980s, its use in prisons and jails exploded again.

Over the past decade, there has been a movement to (again) stop the widespread use of solitary. There have been major steps forward in some states.  But there’s considerable need for more progress — and wider acknowledgment that this is something that we are all accountable for. As Laura Rovner, a law professor at the University of Denver, put it in a recent talk, “We torture people here in America, tens of thousands of them every day … it’s done in our names, with our tax dollars, behind closed doors.”

April 22, 2019 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (1)

Saturday, April 20, 2019

Thoughtful look into prison abolitionism (and prison history) in theory and practice

The New York Times magazine has this week's must read under the headline "Is Prison Necessary? Ruth Wilson Gilmore Might Change Your Mind."  The piece is a profile of a noted prison abolitionist along with a broader discussion of prison history and prison abolitionism.  I heartily recommend the terrific lengthy piece in full, and here is an extended excerpt:

Prison abolition, as a movement, sounds provocative and absolute, but what it is as a practice requires subtler understanding.  For Gilmore, who has been active in the movement for more than 30 years, it’s both a long-term goal and a practical policy program, calling for government investment in jobs, education, housing, health care — all the elements that are required for a productive and violence-free life. Abolition means not just the closing of prisons but the presence, instead, of vital systems of support that many communities lack.  Instead of asking how, in a future without prisons, we will deal with so-called violent people, abolitionists ask how we resolve inequalities and get people the resources they need long before the hypothetical moment when, as Gilmore puts it, they “mess up.”...

In the wake of the Enlightenment, European reformers gradually moved away from corporal punishment tout court; people would go to prison for a set period of time, rather than to wait for the punishment to come.  The penitentiary movement in both England and the United States in the early 19th century was motivated in part by the demand for more humanitarian punishment. Prison was the reform.

If prison, in its philosophical origin, was meant as a humane alternative to beatings or torture or death, it has transformed into a fixed feature of modern life, one that is not known, even by its supporters and administrators, for its humanity.  In the United States, we now have more than two million incarcerated people, a majority of them black or brown, virtually all of them from poor communities.  Prisons not only have violated human rights and failed at rehabilitation; it’s not even clear that prisons deter crime or increase public safety.

Following an incarceration boom that began all over the United States around 1980 and only recently started to level off, reform has become politically popular.  But abolitionists argue that many reforms have done little more than reinforce the system. In every state where the death penalty has been abolished, for example, it has been replaced by the sentence of life without parole — to many people a death sentence by other, more protracted means.  Another product of good intentions: campaigns to reform indeterminate sentencing, resulting in three-strike programs and mandatory-minimum sentencing, which traded one cruelty for another. Over all, reforms have not significantly reduced incarceration numbers, and no recent reform legislation has even aspired to do so.

For instance, the first federal prison reform in almost 10 years, the bipartisan First Step Act, which President Trump signed into law late last year, will result in the release of only some 7,000 of the 2.3 million people currently locked up when it goes into effect. Federal legislation pertains only to federal prisons, which hold less than 10 percent of the nation’s prison population, and of those, First Step applies to only a slim subset.  As Gilmore said to me, noting an outsize public enthusiasm after the act passed the Senate, “There are people who behave as though the origin and cure are federal.  So many are unaware of how the country is juridically organized, and that there are at least 52 criminal-legal jurisdictions in the U.S.”

Which isn’t to say that Gilmore and other abolitionists are opposed to all reforms. “It’s obvious that the system won’t disappear overnight,” Gilmore told me.  “No abolitionist thinks that will be the case.”  But she finds First Step, like many state reforms it mimics, not just minor but exclusionary, on account of wording in the bill that will make it even harder for some to get relief.  (Those convicted of most higher-level offenses, for example, are ineligible for earned-time credits, a new category created under First Step.)  “So many of these proposed remedies don’t end up diminishing the system.  They regard the system as something that can be fixed by removing and replacing a few elements.”  For Gilmore, debates over which individuals to let out of prison accept prison as a given.  To her, this is not just a moral error but a practical one, if the goal is to actually end mass incarceration. Instead of trying to fix the carceral system, she is focused on policy work to reduce its scope and footprint by stopping new prison construction and closing prisons and jails one facility at a time, with painstaking grass-roots organizing and demands that state funding benefit, rather than punish, vulnerable communities.

“What I love about abolition,” the legal scholar and author James Forman Jr. told me, “and now use in my own thinking — and when I identify myself as an abolitionist, this is what I have in mind — is the idea that you imagine a world without prisons, and then you work to try to build that world.”  Forman came late, he said, to abolitionist thinking. He was on tour for his 2017 Pulitzer Prize-winning book, “Locking Up Our Own,” which documents the history of mass incarceration and the inadvertent roles that black political leaders played, when a woman asked him why he didn’t use the word “abolition” in his arguments, which, to her, sounded so abolitionist.  The question led Forman to engage seriously with the concept.  “I feel like a movement to end mass incarceration and replace it with a system that actually restores and protects communities will never succeed without abolitionists. Because people will make compromises and sacrifices, and they’ll lose the vision.  They’ll start to think things are huge victories, when they’re tiny. And so, to me, abolition is essential.”

The A.C.L.U.’s Smart Justice campaign, the largest in the organization’s history, has been started with a goal of reducing the prison population by 50 percent through local, state and federal initiatives to reform bail, prosecution, sentencing, parole and re-entry.  “Incarceration does not work,” said the A.C.L.U. campaign director Udi Ofer.  The A.C.L.U., he told me, wants to “defund the prison system and reinvest in communities.” In our conversation, I found myself wondering if Ofer, and the A.C.L.U., had been influenced by abolitionist thinking and Gilmore. Ofer even seemed to quote Gilmore’s mantra that “prisons are catchall solutions to social problems.”  When I asked him, Ofer said, “There’s no question.  She’s made tremendous contributions, even just in helping to bring about a conversation on what this work really is, and the constant struggle not to replace one oppressive system with another.”

April 20, 2019 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (2)

Thursday, April 18, 2019

"Quelling the Silver Tsunami: Compassionate Release of Elderly Offenders"

The title of this post is the title of this 2018 article authored by Jalila Jefferson-Bullock recently posted to SSRN. Though authored before the passage of the FIRST STEP Act, the article is still particularly timely in light of that new law's various provisions enabling the moving certain defendants out of prison and into home confinement.  Here is the article's abstract:

Sentencing reform appears resurrected.  Following a brief hiatus and an expectedly unwelcoming recent federal response, sentencing reform is again reemerging as a major initiative.  Congress and the several states are poised to immediately accomplish major reform of the United States criminal sentencing structure.  Proposals that would, among other initiatives, drastically reduce criminal sentences, restore rehabilitative programs to inmates, generate sentencing parity, normalize probation for low-level offenses, and shrink the overall prison footprint are ambling through various legislative processes throughout the country.  Though groundbreaking and certainly welcome, these reforms largely ignore the special needs of the imprisoned elderly.  One of the most foreseeable, yet ironically ignored, consequences of 1980's and 1990's harsh sentencing laws, is the dramatic upsurge in prison population through the predictable process of human aging.  Coined the prison “silver tsunami” phenomenon, surging numbers of elderly inmates raises significant moral, health, and fiscal implications deserving keen scrutiny.  It is imperative, then, that any overhaul of criminal sentencing focuses on how to meaningfully address the graying of America's prisons.

April 18, 2019 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Tuesday, April 16, 2019

Notable account of similar states now having different approaches to parole and sentencing reforms

Thanks the the Marshall Project, I just saw this recent local article headlined "As Alabama slowed early paroles, it was slapped for its overcrowded prisons."  The piece is notable in the wake of the recent awful Justice Department report, noted here, about the horrible condition of Alabama's prisons.  And I found particularly interesting the lengthy article's contrasting account of parole and sentencing reform practices in a neighboring state:

Mississippi, according to the Sentencing Project, took several steps highlighted in the Sentencing Project report, some which Alabama has yet to consider: It scaled back sentencing guidelines for nonviolent convictions and applied them retroactively, leading to a substantial increase in paroles and accounting for two-thirds of the population reduction.

Alabama, by contrast, did not apply its 2015 prison reform legislation retroactively and the Justice Department, in its scathing review of Alabama’s prison system, has taken note: “In an effort to decrease the prison population, the law created a new class for felonies for low-level drug and property crimes and reformed parole boards. However, it did not apply retroactively, and the effect on Alabama’s prison population has been minimal.”

Bennett Wright, executive director with the Alabama Sentencing Commission, said there “is a lot of discussion” in Montgomery toward possible retroactive considerations toward leniency. “I haven’t heard a legislator stand up and definitively say that, but there has been a lot of conversation about it,” said Wright. “That’s where our immediate future is in evaluating the possible effects and possible reforms on Alabama’s existing (prison) population and population moving forward.”

Mississippi adopted a risk assessment instrument that contributed to doubling of parole approval rate to more than 50 percent. The measures retroactively allowed consideration for parole for more types of crimes where certain “aggravating circumstances” had previously disqualified inmates from consideration.  Also, individuals deemed “nonviolent habitual offender” were allowed to petition for parole consideration.  The changes also allowed parole consideration for people ages 60 and up and who had served at least 10 years and were parolable under other provisions of the law.

Alabama, by contrast, does not have detailed risk assessment measurements, although the Board of Pardons and Paroles considers factors like family ties and employment prospects when considering early parole applications.  

A few decades ago it often seemed states were competing to see who could be tougher on crime.  Encouragingly (though still not consistently), modern politics and practical realities make it essential for states to try be ever smarter on crime.

April 16, 2019 in Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0)

Saturday, April 13, 2019

Noting a notable federal prisoner now benefiting from the FIRST STEP Act's elderly offender home confinement program

The New York Times has this notable new article focused on one notable federal offender now benefiting from the FIRST STEP Act.  The headline of the piece indirectly reveals some of its themes: "He Committed a $300 Million Fraud, but Left Prison Under Trump’s Justice Overhaul."  Here are some excerpts from the piece:

Three weeks ago, a 69-year-old man convicted of bank fraud quietly left a federal prison camp in Cumberland, Md., and moved into a friend’s one-bedroom apartment in Manhattan. He was one of the early inmates to benefit from a criminal justice bill signed into law by President Trump.  The law, the First Step Act, offered prisoner rehabilitation programs and overhauled sentencing policies that supporters claimed had a disproportionate effect on poor defendants, especially minorities.

But one person who benefited from the law was Hassan Nemazee, the prisoner at Cumberland, who was once an investor of enormous wealth and who donated heavily to Democratic political causes.  He was a national finance chairman for Hillary Clinton’s 2008 presidential campaign and later raised hundreds of thousands of dollars for Barack Obama’s first presidential contest.

Mr. Nemazee, who is serving the rest of his sentence in home confinement, acknowledged in interviews that he was not a fan of Mr. Trump, but he felt personally indebted to the president and his aides for pushing through “the most significant prison reform legislation in a generation.”...

Mr. Trump said recently at the White House that “unfair sentencing rules were contributing to the cycle of poverty and crime,” and since the First Step Act’s passage, more than 500 people with “unfair sentences have been released from prison and are free to begin a new life.”  But Mr. Nemazee left prison under a less publicized part of the bill that allows certain offenders who are over 60 and not considered a threat to others to be released into home confinement if they have completed two-thirds of their sentence.

In home confinement, Mr. Nemazee does not wear an ankle bracelet, but officials may call him on a landline late at night or early in the morning to verify he is at home. He may be summoned for a urine test at any time and must submit his weekly schedule for approval, he said.  Still, it feels a lot like freedom.  He may leave his apartment to go to work, the gym, religious services or appointments with his doctors and lawyers. He may also go out to lunch, “which is always a treat, given where I have been the last eight and a half years.”...

The Bureau of Prisons has said that since the bill’s passage, 10 prisoners — of 23 thus far deemed eligible — have been released into home confinement. The bureau would not identify the prisoners or comment on their cases.  Another is reported to be a white-collar criminal named Herman Jacobowitz, 60, who pleaded guilty in Brooklyn in 2005 in another large fraud case and was sentenced to 15 years, according to court papers and a lawyer familiar with the case. Mr. Jacobowitz could not be reached for comment.

Some of many prior related posts on FIRST STEP Act implementation:

April 13, 2019 in FIRST STEP Act and its implementation, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, White-collar sentencing | Permalink | Comments (0)

"Introducing Disruptive Technology to Criminal Sanctions: Punishment by Computer Monitoring to Enhance Sentencing Fairness and Efficiency"

The title of this post is the title of this paper recently posted to SSRN authored by Mirko Bagaric, Dan Hunter and Colin Loberg.  Here is its abstract:

The United States criminal justice system is the most punitive on earth.  The total correctional population is nearly seven million, equating to a staggering one in thirty-eight adults.  Most of the correctional population comprises offenders who are on parole or probation.  The financial burden this imposes on the community is prohibitive.  Further, a high portion of offenders who are on parole or probation offend during the period of the sanction.  This Article proposes an overdue solution to the crisis which exists in relation to the imposition of criminal sanctions.  The solution is especially timely given that there is now a considerable consensus emerging among lawmakers and the wider community that reforms need to be implemented to reduce the cost of criminal sanctions and improve their effectiveness.  Moreover, the United States Sentencing Commission has recently proposed an amendment to increase the availability of sentences which are alternatives to incarceration. 

With little hint of exaggeration, the sentencing system remains in a primitive state when it comes to adopting technological advances.  This Article seeks to address this failing as a means of overcoming the main shortcomings of current common criminal sanctions.  Forty years ago, it was suggested that the most effective way to deal with crime was to assign a police officer to watch over the every move of each offender.  The proposal was dubbed “cop-a-con”.  This would nearly guarantee that offenders did not re-offend, while eliminating the adverse consequences of prison.  This proposal was manifestly unviable due to its excessive costs.  Technological advances now make the concept achievable in a cost-effective manner.

It is now possible to monitor the locations and actions of individuals in live time and to detect crime as it is in the process of being committed.  Adapted properly to the criminal justice system, technology has the potential to totally reshape the nature and efficacy of criminal sanctions.  The sanctions which are currently utilized to deal with the most serious offenders, namely imprisonment, probation and parole can be replaced with technological monitoring which can more efficiently, effectively and humanely achieve the appropriate objectives of sentencing.  Technological disruption in the criminal justice sector is not only desirable, it is imperative.  Financial pressures and normative principles mandate that the United States can no longer remain the world’s most punitive nation.  The sanction suggested in the Article (“the monitoring sanction”) has the potential to more efficiently and economically impose proportionate punishment than current probation and parole systems, while enhancing public safety.

April 13, 2019 in Purposes of Punishment and Sentencing, Scope of Imprisonment, Technocorrections | Permalink | Comments (0)

Tuesday, April 09, 2019

"Who Belongs in Prison?"

The title of this post is the headline of this first-rate New Yorker article by Adam Gopnik discussing lots of aspects of modern criminal justices systems and a lots of first-rate recent books about these systems. (Emily Bazeon's great new book titled "Charged: The New Movement to Transform American Prosecution and End Mass Incarceration.") I recommend the lengthy piece in full, and the subheadline summarizes just one of its themes: "A truly just system must do more than protect the rights of the innocent; it must also respect the humanity of the guilty." Here is a small excerpt from a long piece:

The heroic rhetoric of class warfare that sometimes inflects these books can mask the truth that the progress in the past decade concerning the crisis of incarceration has in large part been made on classically American reformist terms.  As Bazelon ably reports, the reality of the anti-incarceration movement in this country is that rich philanthropists have been footing much of the bill, prompted simply by evident injustice.  George Soros’s foundations have poured millions into supporting anti-incarceration initiatives, and so, astonishingly, have the Koch brothers — some libertarians really do like to see people at liberty, it seems. 

But what all of these efforts appear to have in common is an attempt to move us out of the crisis of incarceration by moving us past the question of “guilt,” making us see that the categories of guilty and innocent, whether applied to the wrongdoer or to the one done wrong, miss harder social truths, and replace empathy with bureaucratized vengeance. “The crime is what you did, it’s not who you are” is an aphorism of anti-incarceration activists, and this perspective enlivens almost all the reformist literature.

And so the plethora of new books can sometimes seem to sit just outside the hardest issue.  The hardest cases aren’t those of harmless victims of mandatory-minimum laws....  The cases that test our convictions involve offenders whose crimes have had real social and human costs. What do we do about the violent carjacker, the armed robber, the brutal assailant?  Such people exist, of all kinds and colors, and wishing away the problem of impulsive evil by assimilating it to the easier problem of our universal responsibility for social inequities doesn’t help solve it.  It’s often said that white-collar criminals should not be treated better than no-collar ones, and yet the taste for punishing the white-collar miscreant is no less vindictive — indeed, there’s depressing social-science research showing that, once people are made aware of the inequities of the American criminal-justice system, they want even harsher penalties for white-collar offenders.  We should all be in this misery together.

April 9, 2019 in Offender Characteristics, Offense Characteristics, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Friday, April 05, 2019

Senator Klobuchar talking up "second step" criminal justice reforms with a focus on the clemency process

Senator Amy Klobuchar, who is running for President and who served as a local prosecutor for eight years, has this notable new commentary at CNN running under the headline "On criminal justice reform, it's time for a second step." Here are excerpts:

Our criminal justice system is broken. Today we know that our country has more than 20% of the world's incarcerated people, even though we have less than 5% of the world's population.  And we know racial disparities at every level of our system have removed millions of people of color from our society, destroying families and communities for generations.

Thanks to the work of countless reform advocates, we have finally started to acknowledge that there is racism in our criminal justice system and that we need to take action to fight it.  But the next president will have to do more than just talk about these issues.  She will have to take action.

Our criminal justice system cannot lose sight of the principles of fairness and compassion -- for victims, yes, but also for offenders.  Our Founding Fathers understood this point when they gave the president the power to grant clemency....

As president, I would create a clemency advisory board as well as a position in the White House -- outside of the Department of Justice -- that advises the president from a criminal justice reform perspective.  Law professors such as Rachel E. Barkow from New York University and Mark Osler from the University of St. Thomas in Minnesota have described what a better clemency system could look like.  Currently, the Department of Justice includes an Office of the Pardon Attorney, tasked with investigating and reviewing all requests for clemency for federal offenses and ultimately preparing a recommendation for the president.  Although the voices of our prosecutors and law enforcement officials are important and should continue to advise the president, there are additional voices that a president needs to hear.

A diverse, bipartisan clemency advisory board -- one that includes victim advocates as well as prison and sentencing reform advocates -- could look at this from a different perspective. And a criminal justice reform advocate in the White House will ensure that someone is advising the president on criminal justice reform.  That's why I'm committed to making these important changes during the first month of my presidency, should I be elected.

But we cannot solve the many problems associated with mass incarceration through better and smarter use of the presidential pardon alone.  Last year, we in Congress passed the First Step Act, which changed the overly harsh sentencing laws on nonviolent drug offenders and reformed our federal prisons.  But now it's time for the Second Step Act.

The reforms in the First Step Act only apply to those held in the federal system.  The new law doesn't help the nearly 90% of people incarcerated in state and local facilities.  One of my top priorities will be to create federal incentives so that states can restore some discretion from mandatory sentencing for nonviolent offenders and reform the unconscionable conditions in state prisons and local jails.

We have to do more to reduce inflexible mandatory minimums and add safety valves, building on the federal reforms we made last year.  True criminal justice reform includes the cash bail system, expanding funding for public defenders and eliminating obstacles to re-entering and participating fully in society.  That's why we also need better educational and job training programs that can help people both before and after they are released.

I'm also working to change the dialogue on drug and alcohol treatment and mental health services.  I did this in Minnesota as Hennepin County attorney, I've fought for expanded drug courts as a senator, and I'll make this a priority as president.

Regular readers will not be surprised to hear me praise the Senator's eagerness to change the clemency process. As long-time readers know, I started urging more clemency action from Prez Obama on the day he was elected and in 2010, I authored this law review article titled "Turning Hope-and-Change Talk Into Clemency Action for Nonviolent Drug Offenders," which closed with a recommendation that the president "seriously consider creating some form of a 'Clemency Commission'."   The advocacy in this commentary for the creation of a "diverse, bipartisan clemency advisory board" is truly music to my ears.

April 5, 2019 in Campaign 2020 and sentencing issues, Clemency and Pardons, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

In wake of gruesome DOJ report, Alabama Gov plans to build three large new prisons with taxpayer price tag of about a billion dollars

As detailed in this new piece, headlined "Torture, rape, murder: Details from investigation into Alabama’s prison crisis," a Justice Department report on Alabama's prisons released this week was truly brutal:

Sexually assaulted Alabama prison inmates fear reporting abuse, knowing they will be punished for what prison officials say is deliberately creating a safety hazard. Family members of inmates are extorted by other inmates who threaten their imprisoned loved ones -- unless the family pays a prisoner’s drug debt.

Understaffed prisons are overflowing with inmates who are armed with makeshift weapons and will kill officers over food and will kill fellow inmates for any number of reasons. Inmates are drugged, raped and tortured for days at a time, sometimes in retaliation for reporting sexual abuse.

These are the findings of a federal investigation of Alabama prisons, released Wednesday by the U.S. Department of Justice.

The full report is available at this link, and it highlights just some of the many harms of trying to do prison systems "on the cheap."  But, as this follow-up article highlights under the headline "Gov. Kay Ivey says new Alabama prisons part of fix for ‘major crisis’," the taxpayers in Alabama are probably going to now have to foot a big bill for a big prison population:

In the wake of a blistering report from the U.S. Department of Justice, Gov. Kay Ivey is moving ahead with her plan to build three large men’s prisons as a major part of her response to Alabama’s chronically crowded and understaffed correctional system.

The DOJ report released Wednesday acknowledged the “incredibly poor physical shape” of the state’s prisons but focused instead on the violence, sexual abuse, drug trade and extortion that led investigators to conclude that the prisons are so dangerous that there is reasonable cause to believe the state is in violation of the U.S. Constitution.

The report said new prisons might solve some problems but said “new facilities alone will not resolve the contributing factors to the overall unconstitutional conditions.”

Ivey said today she is committed to working with the DOJ to address the problems.  The governor said she is proceeding with plans to build prisons, expected to cost about a billion dollars.  Ivey said she expects a request for companies to make proposals to build the prisons will be released sometime this spring.

Attorneys with two advocacy groups with a history of shedding light on abuses in Alabama prisons said the DOJ report demands that the state move with urgency to make the existing prisons safer. “We have an emergency and we have to act immediately to protect the lives of the people who are incarcerated,” Charlotte Morrison, senior attorney at the Equal Justice Initiative, said. “So, the priority has to be a short-term plan to bring about immediate reform.”....

House Speaker Mac McCutcheon, R-Monrovia, said today the DOJ report called for immediate action.  McCutcheon said the House and Senate are putting together an emergency task force to address the issues raised in the report and help craft the state’s response.  He said that work cannot be delayed....

Lisa Graybill, deputy legal director for the Southern Poverty Law Center, said the DOJ report makes it clear that Alabama cannot build its way out of the prison crisis. The SPLC represents inmates in the federal lawsuit over health care.

“DOJ’s letter makes clear that the simple but incredibly expensive solution of construction isn’t going to address its problems,” Graybill said....

Sen. Cam Ward, R-Alabaster, who has led prison and criminal justice reform initiatives in the Legislature, said prison construction is one of multiple components in a comprehensive solution.  Ward said the Legislature could also consider sentencing reforms, including changing the penalties for some property crimes.  Lawmakers passed a reform package in 2015 that has helped reduce the prison population, although it is still at 180 percent of capacity in the major prisons, the DOJ said.

Ward called the DOJ report “deeply humiliating” and said the findings are at odds with Alabama’s posture as a state steeped in Christian ideals.  Ward said the nature of politics is at the root of the crisis.  “No one wants to fund prisons,” Ward said. “They’d rather fund schools or stuff that gets them votes back home. Nobody gets a vote back home supporting what’s going on in prisons. But as the complaint pointed out, you’re treating people like you wouldn’t treat dogs. And for a country of laws and obviously we have pushed up on the Eighth Amendment here.”

April 5, 2019 in Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

Wednesday, April 03, 2019

"Limiting Identity in Criminal Law"

The title of this post is the title of this interesting new article recently posted to SSRN and authored by Mihailis Diamantis.  Here is its abstract:

People change with time. Their personalities, values, and preferences shift incrementally as they accrue life experience, discover new sources of meaning, and form/lose memories. Accumulated psychological changes eventually reshape not just how someone relates to the world about her, but also who she is as a person.  This transience of human identity has profound implications for criminal law.  Previous legal scholarship on personal identity has assumed that only abrupt tragedy and disease can change who we are. However, psychologists now know that the ordinary processes of growth, maturation, and decline alter us all in fundamental respects.  Many young adults find it hard to identify with their adolescent past. Senior citizens often reflect similarly on their middle years.  However tightly we hold on to the people we are today, at some tomorrow we inevitably find ourselves changed.

Criminal justice has not come to grips with this aspect of the human condition.  The law — by imposing lengthy sentences, allowing enduring consequences of conviction, and punishing long bygone violations — assumes that people’s identities remain fixed from birth to death.  If people do change with time, these policies must violate the criminal law’s most basic commitment to prosecute and punish present-day people only for crimes they (and not some different past person) committed.

Drawing on contemporary psychology and philosophy of personal identity, this Article concludes that criminal law punishes too often and too severely. Lengthy prison terms risk incarcerating people past the point at which their identity changes.  Elderly inmates who have languished on death row for decades should have a new claim for release — that they are now different people, innocent of the misdeeds of yesteryear.  One-time felons should recover lost civil rights sooner.  And defendants should benefit from juvenile process well into their twenties, when personal identity first begins to stabilize.  By confronting the challenges posed by the limits of personal identity, the criminal law can become more just and humane.

April 3, 2019 in Collateral consequences, Offender Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (0)

Tuesday, April 02, 2019

"The Next Step: Ending Excessive Punishment for Violent Crimes"

The title of this post is the title of this notable new report written by Nazgol Ghandnoosh, Senior Research Analyst at The Sentencing Project.  Here is its executive summary:

While the First Step Act and other criminal justice reforms have limited the number of people imprisoned for drug crimes, they have yet to meaningfully reduce excessive penalties for violent crimes.  Nearly half of the U.S. prison population is now serving time for a violent offense, including assault and robbery.

Although the violent crime rate has plummeted to half of its early-1990s level, the number of people imprisoned for a violent offense grew until 2009, and has since declined by just 3%.  This trend stems from increased prison admissions and sentence lengths, despite evidence that excessive penalties are counterproductive.  Long sentences incapacitate older people who pose little public safety threat, produce limited deterrent effect since most people do not expect to be caught, and detract from more effective investments in public safety.

For those who seek to end mass incarceration, there are signs of hope.  In the past two decades, local, state, and federal lawmakers, governors, judges, and practitioners have rejected the death penalty, shortened excessive prison terms for violent convictions, scaled back collateral consequences, narrowed broad definitions of violence, and ended long term solitary confinement.  The 15 reforms featured in this report, implemented in over 19 states, represent more effective, fiscally sound, and morally just responses to violence.  While exceptions in a punitive era, these reforms serve as models for the future.  For example:

Rejecting torture in prison

In 2017, Colorado Department of Corrections’ executive director Rick Raemisch restricted solitary confinement to only serious violations in prisons and set a maximum duration of 15 days.

Using discretion to reduce extreme sentences

Philadelphia District Attorney Larry Krasner seeks to end the city’s heavy reliance on life without parole (LWOP) sentences.  He has made case-by-case evaluations when making resentencing offers to individuals convicted as juveniles, shown restraint in charging decisions and plea offers in homicide cases, and endorsed legislation to allow people serving LWOP to be evaluated for parole after 15 years of incarceration.

Legislators reducing excessive sentences

Mississippi legislators reformed the state’s truth-insentencing requirement for violent crimes in 2014, reducing the proportion of a sentence that individuals with certain violent convictions have to serve before becoming eligible for parole from 85% to 50%.

Recognizing the rehabilitative potential of youth and young adults

In 2010, the Supreme Court ruled that LWOP sentences were unconstitutional for non-homicide crimes committed by juveniles. The Court also later ruled that mandatory LWOP sentences for homicide failed to recognize young people’s “diminished culpability and greater prospects for reform.”  In 2018, California built on this precedent by directing individuals convicted under age 26 to “Youth Offender Parole Hearings.”

Scaling back collateral consequences

Floridians voted in 2018 to re-enfranchise people with felony convictions, including those convicted of most violent crimes.

The reforms identified in this report demonstrate that it is possible to undo excessive penalties for violent crimes while also promoting public safety. They are the next step of criminal justice reform and offer blueprints for policies that will better enable an end to mass incarceration within our lifetime.

April 2, 2019 in Offense Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Friday, March 29, 2019

New reform reports from Florida and Ohio with broader ideas and lessons

This week I came across two notable and reader-friendly reports that each focus on developments in one (swing) state and do so in ways that suggest broader ideas and lessons for reformers working in any jurisdiction. Here are links to these reports with some of their introductory text:

From the Urban Institute, "Smart Reforms to Prison Time Served Requirements in Florida":

Florida’s criminal justice policy decisions, including strict time served requirements, have resulted in an unsustainably large prison system.  The average length of time served in Florida prisons has risen dramatically in recent decades, far outpacing increases in other states and contributing to the state’s large prison population.  Adjusting the state’s inflexible time served requirement is one approach to reducing incarceration that could allow Florida policymakers to save money and invest instead in preventing crime and helping people succeed after coming home from prison.  This brief describes the results of an analysis that shows thousands of people in Florida’s prisons could be released at lower time served requirements, and, for the time they would have been in prison, would not be arrested.

From Alliance for Safety and Justice, Americans for Prosperity-Ohio, and The Buckeye Institute, "Building on Ohio’s sentencing changes to keep prison populations in check":

Bipartisan support for criminal justice reforms such as 2011’s Justice Reinvestment Initiative (HB 86), Targeted Community Alternatives to Prison (T-CAP) and probation reforms in the last biannual budget (HB 49), and SB 66 from the last general assembly allowed the state to minimally reduce the prison population and take steps to increase the use of local sentencing options to reduce recidivism and connect people to treatment.  These efforts, and reducing the use of confinement for juveniles, have garnered well-earned national attention, helped the state avoid or end costly litigation, and saved hundreds of millions of dollars on new prison construction.   

As lawmakers turn their attention to the new legislative session, the General Assembly has an opportunity to build on the success of their recent reforms to ensure Ohioans suffering from addiction have the tools necessary to become contributing members of society while potentially saving the state hundreds of millions of dollars every year.

Right now, Ohio spends $1.8 billion on corrections every year and, despite promises of decreased budgets because of reforms, corrections costs have risen.  There are numerous reasons for increased spending including inflation, healthcare costs for an aging prison population, and the Department of Rehabilitation and Correction granting tens of millions of dollars back to local governments. But one of the main reasons is that recent changes in the law have not led to the big reductions in prison populations that were projected because not as many people convicted of low-level felonies are being served locally as intended. 

March 29, 2019 in Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Thursday, March 28, 2019

"Decarcerating America: The Opportunistic Overlap Between Theory and (Mainly State) Sentencing Practise as a Pathway to Meaningful Reform"

The title of this post is the title of this new paper available via SSRN and authored by Mirko Bagaric and Daniel McCord. Here is its abstract:

Criminals engender no community sympathy and have no political capital. This is part of the reason that the United States has the highest prison population on earth, and by a considerable margin. Incarceration levels grew four-fold over the past forty years. Despite this, America is now experiencing an unprecedented phenomenon whereby many states are now simultaneously implementing measures to reduce prison numbers. The unusual aspect of this is that the response is not coordinated; nor is it consistent in its approach, but the movement is unmistakable.

This ground up approach to reducing prison numbers suffers from the misgiving that it is an ineffective solution to a complex issue. While prison numbers are reducing, it is at a glacial rate. Pursuant to current trends, it would take five decades to reach incarceration levels that are in keeping with historical levels in the United States, and which are in line with prison numbers in most other countries. The massive growth in prison numbers during the latter half of the twentieth century was as a result of a coordinated tough on crime strategy, spawned by the War on Drugs and the implementation of harsh mandatory sanctions. The response to these policy failings must be equally coordinated and systematic in order to be effective.

This Article provides the theoretical and empirical framework that can be used by lawmakers to tap into the community appetite to reduce prison numbers to make changes that are efficient and normatively sound, and which will significantly accelerate the decarceration process. In broad terms, the Article proposes a bifurcated system of sentencing, whereby sexual and serious violent offenders are imprisoned while other offenders (such as those who commit property, immigration and drug offenses) are dealt with by other forms of sanctions. The changes will especially benefit African American and Hispanics, given that they are incarcerated at disproportionately high levels. The empirical evidence also suggests that the proposed reforms will not result in an increased crime rate.

March 28, 2019 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1)

Wednesday, March 27, 2019

"Regulating Mass Prosecution"

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

Efforts to address our nation’s criminal justice crisis have hit a standstill; legislative solutions have proven inadequate and increased funding for public defenders is politically impractical.  Virtually everyone agrees that there is a problem: we incarcerate more people than any other developed nation and that imposes a significant cost on society.  The conventional solutions to this crisis focus on the legislative or public defense side of the equation — urging decriminalization of certain behaviors by state legislatures and increased funding for indigent defenders.  These proposed solutions are important but, alone, insufficient, for reasons that are all too predictable: a lack of political will to do right by indigent defendants.

In this paper, I advance a solution that is at the same time novel and achievable.  My proposed solution is novel because it focuses on an institutional actor that has, to this point, received comparatively little attention in the debates over mass incarceration — the prosecutor.  It is achievable because it does not require new legislation that would, in turn, depend upon political support that is unlikely to materialize. Instead, the solution is already a part of our legal backdrop: prosecutors should be required to comply with the same ethical rules that govern all other lawyers.  And those rules, I argue, are violated when prosecutors exercise their charging discretion in ways that contribute to massive public defender caseloads.

Prosecutorial discretion allows the prosecutor, with few limitations, to choose which of many potential criminal charges she will pursue.  This means that prosecutorial discretion gives prosecutors a degree of control over the size and scope of the criminal court docket that other criminal court actors do not possess.  If we seek a solution to our nation’s problem of mass incarceration, then we must recognize that public defenders with massive caseloads compromise that goal.  This Article conveys that public defender overload, and the mass incarceration to which it contributes, is not simply a constitutional crisis limited to individual rights for individual defendants.  Instead, it defines the problem as an ethical one, with central concerns about how the legal profession is situated in the criminal justice domain.

March 27, 2019 in Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (2)

Thursday, March 21, 2019

"Reduce prison populations by reducing life sentences"

The title of this post is the title of this new Washington Post piece authored by Daniel Nagin.  Here are excerpts:

The imprisonment rate in the United States is now five times larger than it was in the early 1970s, and most of that increase happened at the state level.  Marc Mauer and Ashley Nellis of the Sentencing Project have made a bold recommendation for unraveling mass incarceration — abolition of life sentences.  Most lifers are in state prisons.

Research demonstrates that increases in already long prison sentences, say from 20 years to life, do not have material deterrent effects on crime.  There is no good reason for believing that life sentences are a better deterrent than the Mauer-Nellis recommendation of a maximum sentence of 20 years.

The political and social causes for mass incarceration are complex, but the mechanism is easily described — the system sends more people to prison for longer periods of time. One unintended consequence of this is that our prisons have become old-age homes.  Between 1993 and 2016, the percentage of U.S. prisoners ages 50 or older grew from 5 percent to 20 percent, and the number of those ages 40 years or older more than doubled, from 17.9 percent to 40.4 percent.

From a public safety perspective, this makes no sense.  Decades of research by criminologists demonstrate that nature’s best cure for crime is aging — crime is a young man’s game.  The principal driver of the graying prison population is the growing proportion of lifers, mostly in state prison systems.  One in 7 U.S. prisoners is now serving life or a virtual life sentence, a total of more than 200,000 people.  In 1984, there were only about 34,000 lifers....

The Mauer and Nellis proposal for complete abolition of life sentences is probably a bridge too far for our elected state legislators and governors.  But more moderate changes, such as reducing the use of life sentences and increasing the possibility of eventual parole for those serving life, could have a significant effect without jeopardizing public safety.

March 21, 2019 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (3)

Tuesday, March 19, 2019

"Mass Incarceration: The Whole Pie 2019"

Pie2019The Prison Policy Initiative has today posted the latest, greatest version of its remarkable incarceration "pie" graphic and associated report on the particulars of who and how people are incarcerated in the United States.  The extraordinary pies produced by PPI impart more information in one image than just about any single resource I can think of.  Here is part of the report's introductory text and the concluding discussion on my favorite law-nerd version of pie day:

Can it really be true that most people in jail are being held before trial?  And how much of mass incarceration is a result of the war on drugs?  These questions are harder to answer than you might think, because our country’s systems of confinement are so fragmented.  The various government agencies involved in the justice system collect a lot of critical data, but it is not designed to help policymakers or the public understand what’s going on.  As public support for criminal justice reform continues to build, however, it’s more important than ever that we get the facts straight and understand the big picture.

This report offers some much needed clarity by piecing together this country’s disparate systems of confinement.  The American criminal justice system holds almost 2.3 million people in 1,719 state prisons, 109 federal prisons, 1,772 juvenile correctional facilities, 3,163 local jails, and 80 Indian Country jails as well as in military prisons, immigration detention facilities, civil commitment centers, state psychiatric hospitals, and prisons in the U.S. territories.  This report provides a detailed look at where and why people are locked up in the U.S., and dispels some modern myths to focus attention on the real drivers of mass incarceration.

This big-picture view allows us to focus on the most important drivers of mass incarceration and identify important, but often ignored, systems of confinement.  The detailed views bring these overlooked systems to light, from immigration detention to civil commitment and youth confinement.  In particular, local jails often receive short shrift in larger discussions about criminal justice, but they play a critical role as “incarceration’s front door” and have a far greater impact than the daily population suggests.

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 justice system.  Every year, over 600,000 people enter prison gates, but people go to jail 10.6 million times each year.  Jail churn is particularly high because most people in jails have not been convicted.  Some have just been arrested and will make bail within hours or days, while many others are too poor to make bail and remain behind bars until their trial.  Only a small number (less than 150,000 on any given day) have been convicted, and are generally serving misdemeanors sentences under a year....

Now that we can see the big picture of how many people are locked up in the United States in the various types of facilities, we can see that something needs to change.  Looking at the big picture requires us to ask if it really makes sense to lock up 2.3 million people on any given day, giving this nation the dubious distinction of having the highest incarceration rate in the world.  Both policymakers and the public have the responsibility to carefully consider each individual slice in turn to ask whether legitimate social goals are served by putting each group behind bars, and whether any benefit really outweighs the social and fiscal costs.

Even narrow policy changes, like reforms to money bail, can meaningfully reduce our society’s use of incarceration.  At the same time, we should be wary of proposed reforms that seem promising but will have only minimal effect, because they simply transfer people from one slice of the correctional “pie” to another. Keeping the big picture in mind is critical if we hope to develop strategies that actually shrink the “whole pie.”

March 19, 2019 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Saturday, March 09, 2019

Notable review of juvenile lifers in Tennessee

This local article, headlined "3 takeaways from our review of all 185 Tennessee teen lifers," provides an effective review of the maxed-out incarceration of certain youth in the Volunteer State. Here are excerpts:

In December, activists confronted former Gov. Bill Haslam at an education event and demanded that he grant clemency to Cyntoia Brown, a Nashville woman serving a life sentence in prison for a murder she committed at 16.

At the time, the outgoing Republican governor said he wanted to treat the case fairly, along with cases that were similar but had not received the same level of publicity as Brown's case.  Indeed, Brown had celebrities — including Rihanna and Kim Kardashian West — advocating on her behalf, and she had a team of powerful lawyers who volunteered to pursue her freedom.

Ultimately, Haslam decided to grant Brown clemency, calling her sentence too harsh.  And he acknowledged her case was not unique, saying he hoped "serious consideration of additional reforms will continue, especially with respect to the sentencing of juveniles."

In the wake of his decision, the USA TODAY NETWORK - Tennessee spent weeks reviewing the cases of each of the 185 men and women serving a life sentence — or life without parole — for crimes they committed as teens....

Nearly three-quarters of those serving life sentences for crimes they committed before the age of 18 are African-American men.

Here are some of the other breakdowns of the 185 people serving life.  Seven are serving life sentences for crimes committed at age 14; 26 were 15 years old at the time of their crimes; 53 were 16. The rest were 17.  Ten are women.

Fourteen are serving life sentences without the possibility of parole, while the remainder face at least 51 years behind bars before their first chance for a parole hearing.  The oldest is Robert Walker, sentenced to life in prison for murder in 1972 at age 16. He is now 63....

State Sen. Raumesh Akbari, D-Memphis, said many young defendants face childhood hardships and traumas that can be overcome with time and treatment. “There are so many others like Cyntoia,” Akbari said. “It’s so complicated when you’re dealing with loss of life, but we are talking about children,” she said. “As horrific as it sounds that a child committed murder, the person they are now is not the person they will be in 20 years.”

Indeed, in many of the cases the USA TODAY NETWORK - Tennessee reviewed, court records document a history of abuse suffered by the convicted teens.

A 16-year-old girl sentenced to life in prison in the stabbing death of her mother was repeatedly forced to watch her mother have sex with multiple men.

A 15-year-old boy whose stepfather regularly beat his mother got into a confrontation with the man while asking if he would let them peacefully leave. The boy beat the stepfather to death with a baseball bat.

A 17-year-old boy killed his father after what he and his mother described as years of physical and emotional abuse that had been reported to the state. The father threatened to beat the boy after a suicide attempt and withheld mental health medication, according to the mother. The boy shot his father with a rifle and stole his truck.

The U.S. Supreme Court issued a pair of rulings in recent years that found mandatory life sentences for juveniles are unconstitutional except in rare circumstances....  In Tennessee, the Supreme Court's rulings have not had an impact because there is no mandatory life sentence. Life sentences with the possibility of parole include a mandatory review after at least 51 years served — a length of time advocates call a virtual life sentence.

This companion article, headlined "In Tennessee, 185 people are serving life for crimes committed as teens," includes this discussion of some talk of legislative change:

Sen. Raumesh Akbari, D-Memphis, said many young defendants face childhood hardships and traumas that can be overcome with time and treatment. “There are so many others like Cyntoia,” Akbari said....

Gov. Bill Lee's spokeswoman said he is “open to proposals addressing juvenile sentencing,” and a new state panel is considering future reforms. But there remains little consensus among Tennessee policymakers on what to do when children kill.

Akbari is trying to change Tennessee law to lower the minimum time served before a chance for parole to as low as 30 years for juveniles. The proposal could give many of the 185 a second chance at life outside prison walls for the first time in their adult lives.

Her effort is grounded in research about adolescent brain development that shows people do not fully develop rational decision-making abilities until their 20s. Other research has highlighted the impact of adverse childhood experiences on the developing brain, including sexual and physical abuse, poverty and incarcerated parents — events that can negatively wire some children’s brains.

March 9, 2019 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Data on sentencing, Offender Characteristics, Scope of Imprisonment | Permalink | Comments (1)

Monday, February 25, 2019

Making the conceptual and statistical case for going well beyond the FIRST STEP Act

UZU3HWQVUVE2JH5FXAH56P5MMMKeith Humphreys has this notable new Washington Post piece headlined "The new criminal justice law will modestly shrink prison populations. Should we go further?".   The piece has an important little chart that speaks interestingly to the reality of federal prison populations,and I recommend this piece in full.  Here are excerpts:

The recently enacted First Step Act reduces criminal sentences and promotes rehabilitative programs within the federal justice system. Combined with earlier reforms implemented during the Obama administration, the law should return the federal imprisonment rate back to what it was a generation ago.  But that would still leave the federal prison system with about seven times as many inmates as it had in 1980.  Could the United States ever return to a federal prison population that small, or would that unleash a horrific crime wave?

Questions about how big or small the federal prison system should be are part of the ongoing debate about mass incarceration. But they also have a unique dimension because even though the Constitution assigns most law enforcement powers to states, the federal role in prosecution and incarceration expanded in recent decades (e.g., to include many white-collar crimes, carjacking, DVD piracy, street-corner drug dealing).  As a result, the federal prison system went from accounting for only 7.4 percent of all imprisonment in 1980 to 12.6 percent of all imprisonment in 2016.  Even a decade before the federal prison system reached its peak size, a bipartisan American Bar Association task force argued that the expansion of federal law enforcement and corrections were “inconsistent with the traditional notion that prevention of crime and law enforcement in this country are basically state functions.”

Sometimes it is helpful in public policy to ask questions about first principles: Why should the federal government ever imprison anyone at all?  A common fear — which some opponents of the First Step Act stoked — is that the United States would be overwhelmed with violent crime if not for federal law enforcement and incarceration.  In reality, virtually every murder, rape, assault and battery is charged under state law and results in imprisonment at the state or local level.  The federal prison system holds only 1.8 percent of U.S. inmates serving time for violent crimes.

Federal law enforcement and imprisonment thus do not serve as the nation’s primary bulwark against violence.  But they are important in three defined contexts.

Combating state and local corruption....

Battling criminal organizations that overwhelm state and local law enforcement....

Punishing crimes specifically against the federal government....

All of the above types of crimes are destructive, and those who commit them and are sent to federal prison do not deserve our sympathy.  But it is implausible that the number of and deserved sentence length for such offenses are seven times greater than they were before the federal prison population exploded.  That reality, combined with the fact that the generational cutback in the size of the federal prison system has caused no evident problems, suggest the First Step Act should be considered just that — a first step.  The extremely broad coalition that supported the First Step Act can reasonably aim higher in its next round of proposed reform, returning the federal prison system to its traditional role as an important — but small — part of the U.S. correctional system.

February 25, 2019 in Offense Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

After swift cert denial in Rivera-Ruperto, should I just give up hoping for an improved Eighth Amendment to check extreme non-capital sentences?

Intrepid readers may realize that I have paid close attention to a case out of the First Circuit, US v. Rivera–Ruperto, because I thought it involved extraordinarily facts that made for a compelling Cruel and Unusual Punishments argument if that clause was to function as even the most minimal check on the imposition of extreme prison sentences on adult offenders.  But, frustratingly, today's Supreme Court order list has under a long list of cert denials "18-5384  Rivera-Ruperto, Wendell v. United States."  Grrrr.

Of course, I was not the only one who thought this was was exceptional: as noted here, the entire First Circuit issued a remarkable opinion last year while denying en banc review (available here) in which Judge Barron spoke for all his colleagues in urging the Justices to take up the Rivera-Ruperto to reconsider its Eighth Amendment jurisprudence.  I was sincerely hoping that this unusual statement from an entire circuit might at least get Rivera-Ruperto a single relist from the Supreme Court or maybe just a short statement from some Justices about the issue.  A single relist or a statement about a denial of cert would suggest that there was at least a single Justice who might think that a toothless Eighth Amendment is a problem in an era of mass incarceration.  (Tellingly, the legal press and criminal justice twitterverse has also entirely ignored this case, confirming my fears that one need to be a murderer on death row before just about anyone gets interested in an Eighth Amendment claim.)

I still want to hope that maybe a district court or the First Circuit could find a way to do better in this case when Wendell Rivera-Ruperto eventually brings a 2255 claim (which could now juice an Eighth Amendment argument, as I suggested here, on the fact that the FIRST STEP Act has changed the federal law that lead to his 130 years of mandatory-minimum prison time).  But even if Rivera-Ruperto is able to get some relief eventually, I am still this morning left deeply troubled by the notion that not a single Justice seems to be at all concerned about modern Eighth Amendment jurisprudence relating to extreme non-capital sentences.  Sigh. 

A few prior related posts:

February 25, 2019 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Friday, February 22, 2019

Brennan Center produces policy brief on "Ending Mass Incarceration: A Presidential Agenda"

2019_02_21_10AMJusticeAgendaforCandidates-1The Brennan Center for Justice yesterday released this notable new 16-page policy brief authored by Ames Grawert, Bryan Furst, and Cameron Kimble under the title "Ending Mass Incarceration: A Presidential Agenda."  Here is its introduction:

For many voters, the past two years have brought a new awareness of profound, continuing injustices in American society.  Among them is the civil rights crisis of mass incarceration.  Even with recent reforms, more than two million Americans remain behind the bars of jails or prisons.  Black men and women are imprisoned at roughly six times the rate of their white counterparts. The overuse of incarceration perpetuates economic and racial inequality, two issues at the top of the public concern.

Going into the 2020 election, contenders for the Democratic nomination — and the Republican incumbent — must have a plan to meet these challenges, or risk being out of step with the American people.

This report delineates how that can be done, outlining policies that would slash America’s incarceration rate, put people back to work, and reduce racial disparities in the process, while keeping the country safe.  These solutions can be a transformative piece of a presidential campaign and help define a new president’s legacy.

Some consensus for these changes already exists.  Late last year, Congress ended years of deadlock over federal sentencing reform by passing the FIRST STEP Act, which will reduce some of the most extreme and unjust sentences in the federal criminal code.  These changes will put families back together, make prison more humane, and help restore trust in law enforcement.

But the bill also raises the bar for any candidates seeking the Oval Office.  President Trump is already treating the act as a signature accomplishment, touting it among his top achievements in his State of the Union address.  Candidates who are serious about combating racial and economic injustice — and want voters to know it — will have to think bigger.

Rather than focusing on individual reforms, candidates for the presidency should commit to tackling some of the most pervasive and damaging parts of our criminal justice system, including overly punitive sentences, bail practices that favor the rich, and drug policies that unfairly target people of color.  These aren’t intractable problems, but they do call for sweeping changes, far more than what has been introduced to date. And enacting these in Washington can also spur more states to take action.

Incremental reforms will not make the history books.  The time for bold action is now, and this report outlines precisely the type of transformative solutions that candidates can champion to define their campaign or cement their legacy.

The report includes a number of large and small action items, all of which are interesting and important and all of which I hope get robustly discussed on the campaign trail.  The report has all prompted me to start a new blog category: "Campaign 2020 and sentencing issues."

February 22, 2019 in Campaign 2020 and sentencing issues, Elections and sentencing issues in political debates, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)