Sentencing Law and Policy

"Plea Bargaining Abolitionism: A History"

The title of this post is the title of this new piece authored by William Ortman now available via SSRN. Here is its abstract:

How does a tragedy on the scale of mass incarceration happen?  Scholarship has focused on the carceral appetite of politicians, criminal justice practitioners, and the public. R ightly so, but mass incarceration took more.  On paper, American law has a built-in check on carceral appetites: a labor-intensive system of criminal adjudication via trials. Yet as mass incarceration wreaked havoc in the 1980s and beyond, that system barely registered.  It had been supplanted, over the previous century, by a form of adjudication far better suited to punitive fervor.  Plea bargaining enabled mass incarceration.  If only Americans had been warned about plea bargaining before it was too late, maybe the catastrophe could have been avoided.

Except that they — we — were warned.  In the 1970s, an unlikely assortment of academics, prosecutors, judges, and even a Nixon-administration crime commission sought to rally the country to abolish plea bargaining.  While they did not speak in unison, they were united by a conviction that the system of plea bargaining that had matured in mid-century American courts was fundamentally unjust.

Plea bargaining abolitionists in the 1970s tried to tell us that something basic had gone wrong with the criminal process.  Perhaps predictably, the broader legal profession didn’t heed the warning.  When prosecutors and judges attempted to formally ban plea bargaining — as they did in Alaska, El Paso, and elsewhere — other prosecutors and judges, joined by defense lawyers, found ways to circumvent them.  And when scholars and politicians decried the injustice of plea bargaining, they were told to be more realistic.

Campaign for the Fair Sentencing of Youth reporting that "1,000 individuals who were sentenced to life in prison as children are now free"

I received an email this morning from The Campaign for the Fair Sentencing of Youth (CFSY) reporting in this way on what seems like a notable resentencing milestone:

As of June 6, 2023, we’ve reached an incredible milestone: 1,000 individuals who were sentenced to life in prison as children are now FREE! Since 2009, we have been fighting alongside family members, formerly incarcerated individuals, survivors of violence, lawyers, legislators, and advocates to reach this landmark. Today, we celebrate alongside each of you and affirm once again that “No Child Is Born Bad.”

The CFSY website also provides these notable particulars on the freed group:

What do you know about these 1000 individuals who were told as children they would die in prison serving life without parole and are now free? Their recidivism rates are exceedingly low, while the time they served is exceedingly high....

RECIDIVISM RATES OF FORMER JUVENILE LIFERS ARE EXTREMELY LOW: BETWEEN 0 AND 2%.  A study in Louisiana found the recidivism rate of those who were sentenced to juvenile life without parole to be 0% while a study in Pennsylvania found it to be 1.14%. the national recidivism rate is reported to be between 40% and 68%.

THE AVERAGE NUMBER OF YEARS THESE 1000 FORMER JUVENILE LIFERS SERVED IS EXTREMELY HIGH: 30 YEARS. The median time served for homicide in the U.S. is 17 years according to statistics from the federal bureau of justice – up from less than six years before the year 2000.

THE AVERAGE AGE UPON RELEASE: 47 YEARS OLD.  While teenagers are more prone to break the law, most who commit serious crimes mature out of a tendency to break laws around 25 years old, according to criminologists, biological brain researchers, and decades of experience.

AMERICANS OVERWHELMINGLY BELIEVE THESE 1000 HAVE A CAPACITY FOR POSITIVE CHANGE: 70%. Over two-thirds of Americans agree that children who receive lengthy sentences should have their sentences reviewed by a judge or parole board after no more than 15 years, with the opportunity for release. This majority holds across race, age, gender, political affiliation, and education.

THE LONGEST SERVING AND OLDEST TO BE FREED: JOE LIGON. Locked up at age 15, Joe Ligon became the nation’s longest-serving juvenile ‘lifer.’ at 83, he became the oldest to be freed.

"Calculating Torture: Analysis of Federal, State, and Local Data Showing More Than 122,000 People in Solitary Confinement in U.S. Prisons and Jails"

The title of this post is the title of this notable new report from the group Solitary Watch.  Here is the report's introduction (with cites removed):

Solitary confinement is a torturous and deadly practice.  Prisons, jails, and detention centers inflict solitary confinement disproportionately on Black people, Latino/a/x people, Native people, and other people of color.  Decades of research have attested to the lived experience of people who have been incarcerated and their loved ones, corroborating that solitary causes devastating harm to physical, mental, and behavioral health and is counterproductive to any goals of safety.  Any length of time in solitary confinement — days, or even hours at a time —can have severe consequences.

While there has been a growing recognition of the need to end solitary confinement, and some groundbreaking policy changes have shown movement in that direction, the use of solitary confinement in prisons, jails, and detention centers across the United States remains common and widespread.

This report provides the first ever comprehensive accounting of the total use of solitary confinement in both prisons and jails across the United States.  Analysis of data recently released by the federal Bureau of Justice Statistics (BJS) and by two state prison systems that did not report to BJS, as well as data from a survey of local jails conducted by the Vera Institute of Justice, reveals that state and federal prisons and local and federal jails in the U.S. have reported on a given day locking a combined total of more than 122,000 people in solitary confinement for 22 or more hours.

These newly available numbers come closer than have any previously published figures in accounting for the number of people in solitary confinement. Yet they still undoubtedly undercount the number of individuals who experience solitary and the number impacted by it.

To begin with, the numbers are self-reported by correctional systems.  Further, they cover only solitary confinement that involves being locked in a cell 22 or more hours a day.  They do not include various informal or transient forms of solitary confinement such as group lockdowns or quarantines, nor do they include so-called alternatives that amount to solitary by another name.

In addition, the figures represent a snapshot of the number of people in solitary confinement at a given moment in time, while many times that number are locked in solitary during the course of a year.

Moreover, the numbers include only people in prisons and jails. Immigration detention facilities lock people in solitary confinement nearly 9,000 times a year, and children and other young people in youth facilities continue to be subjected to solitary. 

Even given all these excluded factors, the numbers far exceed those of other recent counts, which, in the absence of more comprehensive figures, have been widely quoted by media outlets and even scholars and advocates. 

Solitary Watch has been investigating and documenting the widespread use of solitary confinement for more than a dozen years to increase awareness of and accountability for this humanitarian crisis.  The Unlock the Box Campaign and activists across the country have been urging policy makers at the local, state, and federal levels to build on recent efforts to end or limit the use of solitary and to take much more substantial action to significantly reduce or eliminate its use.  Together, we believe that accurate information — including the most comprehensive possible count of the numbers of people in solitary confinement — is critical to creating change.

"Risk Averse and Disinclined: What COVID Prison Releases Demonstrate About the Availability of the United States to Reduce Mass Incarceration"

The title of this post is the title of this notable new report authored by Julia Laskorunsky, Kelly Lyn Mitchell and Sandy Felkey Mullins released today by the Robina Institute of Criminal Law and Criminal Justice. Here is the Executive Summary from the 70+ page report:

This report examines the challenges and opportunities that states faced in deciding whether to release people from prison during the COVID-19 pandemic.  It focuses on the legal mechanisms available to jurisdictions and the factors that influenced whether they were willing or able to use those mechanisms to release people from prison.

Our goal is to illuminate whether back-end release mechanisms can be used to reduce prison populations that have been bloated by the policies of the mass-incarceration era or whether relief from mass incarceration must take some other form.

The report presents case studies of six states — Alabama, Illinois, Kansas, Minnesota, Pennsylvania, and Washington — to gain a more in-depth view of how events unfolded during the pandemic.  Overall, our study found that the number of individuals released early from prisons during the pandemic was limited due to a variety of factors, including politics, risk-averse decision-making, shifting external pressures, the limited scope of compassionate and medical release statutes and the use of discretion to deny release.  In addition, few changes to policy or practice that occurred during the pandemic had a lasting impact on back-end release practices.

We conclude that the back-end release mechanisms offer only a modest opportunity to reduce mass incarceration, and the current system is unlikely to make a substantial difference in addressing mass incarceration due primarily to risk aversion.  Instead, state-level carceral policies that focus on diffusing responsibility for back-end release and that reduce incarceration in the first place have the greatest chance of achieving long-term reductions in prison populations.

Minnesota through new legislation becomes 28th state to prohibit juve LWOP

Via email from The Campaign for the Fair Sentencing of Youth, I learned this afternoon that "Minnesota has officially become the 28th state to ban juvenile life without parole as an omnibus public safety bill (SF 2909) was signed by Minnesota Governor Walz after passing through the Minnesota Senate and House of Representatives." This Equal Justice Initiative piece provides some details and context:

Minnesota lawmakers this week abolished life imprisonment without parole for children. The reform is part of a public safety bill designed to transform the state’s approach to children accused of criminal offenses.

The bill not only retroactively eliminates juvenile life-without-parole sentences but also provides that children sentenced in adult court will be eligible for supervised release after at least 15 years in prison.

A newly created Supervised Release Board will be required to consider an expert assessment of the individual’s cognitive, emotional, and social maturity as well as relevant science on children’s neurological development.

Approximately 40 people will be eligible for review, University of Minnesota law professor Perry Moriearty told the Star Tribune.

The new law also creates a statewide Office of Restorative Practices to promote alternative, community-based approaches to hold children accountable, respond to victims’ needs, and address the issues underlying children’s behavior.

State grants will be provided to counties to develop local restorative justice initiatives, such as victim-offender dialogues and family group conferences, with input from parents, youths, school administrators, county prosecutors, and local law enforcement.

LawProf Mark Osler has this Twitter thread about the public safety bill that was just signed into law in Minnesota, and it highlights some other interesting sentencing features (among many others):

The bill restructures clemency. Among other features, the Pardon Board (the Gov, AG & Chief Justice) can grant clemency by a 2-1 vote with the gov in the majority. Previously, it required a unanimous vote. It also establishes a clemency commission to evaluate cases....

Adds members to the board of public defense and to the sentencing commission (including a formerly incarcerated member)....

Creates an avenue for prosecutor-initiated re-sentencing.

Caps probation at 5 years, and makes that cap retroactive for those already sentenced....

Establishes good-time credits for those in prison who pursue programming and education (up to 17% of a sentence can be earned), on top of the 1/3 of sentences that already are presumptively on supervised release.

The Sentencing Project releases new report covering “Youth Justice By The Numbers”

The Sentencing Project released today this notable new report titled, “Youth Justice By The Numbers.”  The very first page of this nine-page report spotlights that from "2000 (the peak year) and 2020, the number of youth held in juvenile justice facilities on a typical day fell from 108,800 to 25,000, a 77% decline." Here is how the start of this report contextualizes this finding and others presented in this report:

Youth arrests and incarceration increased in the closing decades of the 20th century but have fallen sharply since that time. Public opinion often lags behind these realities, wrongly assuming both that crime is perpetually increasing and that youth offending is routinely violent.  In fact, youth offending is predominantly low-level, and the 21st century has seen significant declines in youth arrests and incarceration.  Between 2000 and 2020, the number of youth held in juvenile justice facilities fell from 109,000 to 25,000 — a 77% decline.

As The Sentencing Project marks 50 years since the era of mass incarceration began, states working to end this overly punitive era can learn important lessons from both the rise and then the sustained fall in youth arrests and placements.

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

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

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

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

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

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

New Human Rights for Kids report documents those imprisoned for crimes committed as children

The group Human Rights for Kids has released this big new report titled "Crimes Against Humanity: The Mass Incarceration of Children in the US." Here is part of the report's executive summary:

The extensive negative impact on children from our practice of transferring them into the adult criminal justice system and treating them as if they were adults has been well-documented by state and federal government agencies, researchers, advocates and the press. What has not been documented to date, is the extent of the impact of these policies. This report provides the first ever snapshot and national estimate of the number of people in our prisons who have been there since they were children.

We gathered data from 45 states on every individual currently incarcerated who was under the age of 18 at the time of their offense. Our findings revealed that U.S. prisons are filled with at least 32,359 individuals whose crimes were committed as children....

Beginning in the summer of 2021, we requested data from departments of corrections in all 50 states and the District of Columbia on individuals who are currently incarcerated in adult prisons who committed their offense when they were under the age of 18. We received data from 45 states. Our analysis surfaced trends and findings across sentence length, decade of incarceration, gender, race and ethnicity. In addition to aggregating the data, we also conducted a comparative analysis to highlight which state practices constituted the worst human rights violations across categories.

We are currently incarcerating approximately 32,359 individuals in ourprisons for crimes they committed as children.  Some were so young they were still subject to truancy laws, and an astonishing number weren’t even teenagers.  They comprise a full 3.1% of the United States’ overall state prison population –- the equivalent of an entire prison full of children in every state in the country.  Notably, this is close to the total number of children in youth prisons of 36,469.  We incarcerate more children as adults in our prison system than the total combined prison populations of Denmark, Iceland, Ireland, Northern Ireland, Norway, Sweden and Scotland.  In fact,there are more people in our prisons for crimes they committed as children than people in prison who committed their crimes as adults in 76.68% of the countries and independent territories in the world.

Longest sentence yet in Jan 6 case, 14+ years in federal prison, given to man with 38 priors

As reported in this Fox News piece, a "Kentucky man with a long criminal record was sentenced Friday to a record-setting 14 years in prison for attacking police officers with pepper spray and a chair as he stormed the U.S. Capitol with his wife." Here is more:

Peter Schwartz’s prison sentence is the longest so far among hundreds of Capitol riot cases.  The judge who sentenced Schwartz also handed down the previous longest sentence — 10 years — to a retired New York Police Department officer who assaulted a police officer outside the Capitol on Jan. 6, 2021.  Prosecutors had recommended a prison sentence of 24 years and 6 months for Schwartz, a welder.

U.S. District Judge Amit Mehta sentenced Schwartz to 14 years and two months in prison, followed by three years of supervised release.  Mehta said Schwartz was a "soldier against democracy" who participated in "the kind of mayhem, chaos that had never been seen in the country's history."

"You are not a political prisoner," the judge told him. "You're not somebody who is standing up against injustice or fighting against an autocratic regime."

Schwartz briefly addressed the judge before learning his sentence, saying, "I do sincerely regret the damage that Jan. 6 has caused to so many people and their lives."  The judge said he didn't believe Schwartz's statement, noting his lack of remorse. "You took it upon yourself to try and injure multiple police officers that day," Mehta said.

Schwartz was armed with a wooden tire knocker when he and his then-wife, Shelly Stallings, joined other rioters in overwhelming a line of police officers on the Capitol’s Lower West Terrace, where he threw a folding chair at officers. "By throwing that chair, Schwartz directly contributed to the fall of the police line that enabled rioters to flood forward and take over the entire terrace," prosecutor Jocelyn Bond wrote in a court filing.

Schwartz, 49, also armed himself with a police-issued "super soaker" canister of pepper spray and sprayed it at retreating officers.  to a tunnel entrance, Schwartz coordinated with two other rioters, Markus Maly and Jeffrey Brown, to spray an orange liquid toward officers clashing with the mob.  "While the stream of liquid did not directly hit any officer, its effect was to heighten the danger to the officers in that tunnel," Bond wrote....

Stallings pleaded guilty last year to riot-related charges and was sentenced last month to two years of incarceration.

Schwartz was tried with co-defendants Maly and Brown.  In December, a jury convicted all three of assault charges and other felony offenses.  Mehta sentenced Brown last Friday to four years and six months in prison.  Maly is scheduled to be sentenced June 9.

Schwartz’s attorneys requested a prison sentence of four years and six months.  They said his actions on Jan. 6 were motivated by a "misunderstanding" about the 2020 presidential election.  Then-President Donald Trump and his allies spread baseless conspiracy theories that Democrats stole the election from the Republican incumbent....

Schwartz was on probation when he joined the Jan. 6 riot. His criminal record includes a "jaw-dropping" 38 prior convictions since 1991, "several of which involved assaulting or threatening officers or other authority figures," Bond wrote....

The 10-year prison sentence that Mehta handed down in September to retired NYPD officer Thomas Webster had remained the longest until Friday.  Webster had used a metal flagpole to assault an officer and then tackled the same officer as the mob advanced toward the Capitol.

Sentencing Project releases new fact sheet on "Incarcerated Women and Girls"

The Sentencing Project this morning released this new six-page fact sheet titled simply "Incarcerated Women and Girls."  The document is full of data and graphics highlighting aspects of the reality that "the rate of growth for female imprisonment has been twice as high as that of men since 1980."  I recommend the full document, and here is some of its text:

Between 1980 and 2021, the number of incarcerated women increased by more than 525%, rising from a total of 26,326 in 1980 to 168,449 in 2021. While 2020 saw a substantial downsizing due to the COVID-19 pandemic, this trend reversed with a 10% increase in 2021.

Though many more men are in prison than women, the rate of growth for female imprisonment has been twice as high as that of men since 1980. There are approximately 976,000 women under the supervision of the criminal justice system....

In 2021, the imprisonment rate for Black women (62 per 100,000) was 1.6 times the rate of imprisonment for white women (38 per 100,000). Latinx women were imprisoned at 1.3 times the rate of white women (49 vs. 38 per 100,000).... Between 2000 and 2021, the rate of imprisonment in state and federal prisons declined by 70% for Black women, while the rate of imprisonment for white women rose by 12%....

The rate at which women are incarcerated varies greatly from state to state. At the national level, 47 out of every 100,000 women were in prison in 2021. The state with the highest rate of female imprisonment is Idaho (127) and the state with the lowest incarceration rate of women is Massachusetts (6).

Women in state prisons are more likely than men to be incarcerated for a drug or property offense. Twenty-five percent of women in prison have been convicted of a drug offense, compared to 12% of men in prison; 19% of incarcerated women have been convicted of a property crime, compared to 13% among incarcerated men. The proportion of imprisoned women convicted of a drug offense has increased from 12% in 1986 to 25% in 2020.

CCJ releases "How long is long enough?: Task force on long sentences final report"

I have repeatedly noted this post from last year discussing the Council of Criminal Justice's impressive Task Force on Long Sentences, in part because that Task Force for the better part of a year has been producing all sorts of important research and analysis concerning long sentences (see prior posts linked below).  And today I am excited to see that the Task Force's main report, titled "How long is long enough?," has been released today with 14 thoughtful recommendations.  Released along with this full report is this press release, which helps summarize the work of the Task Force and its report.  Here is how the press release starts:

As cities across the nation grapple with effective responses to increases in violent crime, a task force co-chaired by former U.S. Deputy Attorney General Sally Yates and former U.S. Rep. Trey Gowdy today released a report outlining a comprehensive approach for the use of lengthy prison sentences in the United States. 

The report, How Long is Long Enough?, presents 14 recommendations to enhance judicial discretion in sentencing, promote individual and system accountability, reduce racial and ethnic disparities, better serve victims of crime, and increase public safety.  Defining long sentences as prison terms of 10 years or longer, the panel’s proposals include:

• Shifting savings from reductions in the use of long prison sentences to programs that prevent violence and address the trauma it causes individuals, families, and communities (Recommendation 1).
• Allowing judges to consider all relevant facts and circumstances when imposing a long sentence, and requiring that sentencing enhancements based on criminal history are driven by individualized assessments of risk and other factors (Recommendations 6 and 8)
• Providing selective “second look” sentence review opportunities and expanding access to sentence-reduction credits (Recommendations 11 and 12)
• Focusing penalties in drug cases on a person’s role in a trafficking organization, rather than the amount of drug involved, (Recommendation 7)
• Reducing recidivism by providing behavioral health services and other rehabilitative living conditions and opportunities in prison (Recommendations 3 and 13)
• Strengthening services for all crime victims and survivors by enforcing victims’ rights, removing barriers to services, and creating restorative justice opportunities (Recommendations 2, 4, and 9)

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

• Notable CCJ new task force examining long prison terms
• Council on Criminal Justice releases "Long Sentences by the Numbers" 
• Council on Criminal Justice releases "Long Sentences: An International Perspective" 
• Council on Criminal Justice releases Illinois analysis of "The Public Safety Impact of Shortening Lengthy Prison Terms" 
• CCJ releases "Long sentences, better outcomes: Opportunities to improve prison programming" 
• CCJ report explores "The Relationship Between Sentence Length, Time Served, and State Prison Population Levels" 

"The 'Cruel and Unusual' Legacy of the Star Chamber"

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

Supreme Court justices have read the “cruel and unusual punishments” clause as prohibiting torturous methods of punishment, prohibiting grossly disproportionate punishments, and/or prohibiting arbitrary discretion over the infliction of the death penalty.

All three accounts face familiar and formidable historical challenges.  There is general agreement that the founders took the clause from Article 10 of the English Bill of Rights, and that Article 10 repudiated the horrific sentence passed on Titus Oates by the infamous Judge Jeffreys in 1685.  Each of the major interpretations fails to account for important pieces of the Oates puzzle.

The methods of punishment inflicted on Oates were two days of horrific flogging, recurring stands in the pillory, and life imprisonment.  These methods were not capital, were not unusual in 1685, and were all included in the Crimes Act passed by the First Congress.  Oates’s sentence was not, by contemporary standards, disproportionate. His perjuries caused the executions of numerous innocents, quite possibly by torture.  By the standards of the times, he deserved hanging.

The Eighth Amendment, however, responded to anti-federalist fears that Congress might adopt torturous methods of capital punishment.  Prevailing theories fail to account for the disconnect between what the English provision did and what the American provision meant to do.

This Article argues that prevailing accounts are breathtakingly incomplete.  The full story begins not with the flogging of Titus Oates in 1685, but with the abolition of the Star Chamber in 1641.  Sentencing Oates, Jeffreys claimed for King's Bench all the Star Chamber's lawless power to determine punishments less than capital.  The English Article 10 repudiated this attempt to resurrect the Star Chamber.  Then Congress, responding to anti-federalist fears about Congress adopting European-style executions by torture, freighted the "cruel and unusual" language with two additional meanings.  The clause now applied to capital, as well as noncapital, penalties.  It now also restricted legislative as well as judicial discretion.  Synthesizing the English original and the later concerns of the American founders, the Eighth Amendment forbids lawless discretion in both capital and noncapital cases, and torturous methods of punishment.  Proportionality was left to the legislature, subject to the powerful check provided by a constitutional requirement of even-handed enforcement.

At a time when the Court is reconsidering longstanding precedents from originalist premises, this account is not only a major advance in the academic literature.  It may also be, practically speaking, a matter of life and death.

"The Minimalist Alternative to Abolitionism: Focusing on the Non-dangerous Many"

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

In The Dangerous Few: Taking Prison Abolition and Its Skeptics Seriously, published in the Harvard Law Review, Thomas Frampton proffers four reasons why those who want to abolish prisons should not budge from their position even for offenders who are considered dangerous.  This essay demonstrates why a criminal law minimalist approach to prisons and police is preferable to abolition, not just when dealing with the dangerous few but also as a means of protecting the nondangerous many.  A minimalist regime can radically reduce reliance on both prisons and police, without the loss in crime prevention capacity and legitimacy that is likely to come with abolition.

Prior related post:

• "The Dangerous Few: Taking Seriously Prison Abolition and Its Skeptics" 

Prison Policy Initiative releases "Mass Incarceration: The Whole Pie 2023"

Though not all pies taste the same on March 14, so-called "Pi Day," sentencing fans and criminal justice data fans should find today especially delicious because the amazing folks at the Prison Policy Initiative have now posted the latest, greatest version of PPI's amazing incarceration "pie" graphic and associated report.  The latest report "Mass Incarceration: The Whole Pie 2023" provides a spectacular accounting of the particulars of who and how people are incarcerated in the United States.  As I have said in the past, the extraordinary "pies" produced by PPI impart more information in a couple of effective image than just about any other single resource I know about (and this PPI press release has the main visual and other highlights).  Here is part of this latest pie report's introductory text and the concluding discussion:

Can it really be true that most people in jail are legally innocent? How much of mass incarceration is a result of the war on drugs, or the profit motives of private prisons? How has the COVID-19 pandemic changed decisions about how people are punished when they break the law? These essential questions are harder to answer than you might expect. The various government agencies involved in the criminal legal system collect a lot of data, but very little is designed to help policymakers or the public understand what’s going on. As public support for criminal justice reform continues to build — and as the pandemic raises the stakes higher — it’s more important than ever that we get the facts straight and understand the big picture.

Further complicating matters is the fact that the U.S. doesn’t have one “criminal justice system;” instead, we have thousands of federal, state, local, and tribal systems. Together, these systems hold almost 2 million people in 1,566 state prisons, 98 federal prisons, 3,116 local jails, 1,323 juvenile correctional facilities, 181 immigration detention facilities, and 80 Indian country jails, as well as in military prisons, civil commitment centers, state psychiatric hospitals, and prisons in the U.S. territories.

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

The United States has the dubious distinction of having the highest incarceration rate in the world.  Looking at the big picture of the 1.9 million people locked up in the United States on any given day, we can see that something needs to change.  Both policymakers and the public have the responsibility to carefully consider each individual slice of the carceral “pie” and 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 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 or needlessly exclude broad swaths of people. Keeping the big picture in mind is critical if we hope to develop strategies that actually shrink the “whole pie.”

Brennan Center publishes "A Proposal to Reduce Unnecessary Incarceration: Introducing the Public Safety and Prison Reduction Act"

The folks at the Brennan Center for Justice have a new report available here authored by Hernandez D. Stroud, Lauren-Brooke Eisen, and Ram Subramanian titled "A Proposal to Reduce Unnecessary Incarceration: Introducing the Public Safety and Prison Reduction Act."  Here is part of the report's introduction:

According to a 2016 Brennan Center for Justice report, nearly 40 percent of the U.S. prison population is incarcerated without any compelling public safety justification. Incarceration degrades people’s humanity, disrupts their social networks, and causes lifelong social and financial disadvantage through restricted access to education, jobs, and housing.  It also devastates families and communities, disproportionately affecting society’s most marginalized segments.

Reforms have reduced the population behind bars from its 2009 peak, yet an astonishing level of incarceration persists: today over 1.2 million people are confined to federal and state prisons, and just over 636,000 more are locked up in local jails.  Few states have achieved significant reductions in their prison populations, and in some places these populations have begun to grow again.

For a half century, the federal government has harnessed its grant-making power to spur states to incarcerate more people and to impose longer sentences, making the United States the most punitive country in the world.  It can now use that same funding power to reverse course.  The idea of using federal funding to reduce incarceration is not new, but recent programs have had mixed results.  For example, between 2010 and 2017, the U.S. Department of Justice’s Justice Reinvestment Initiative (JRI) provided state and local governments with technical assistance and direct funding to reduce their prison populations.  But this funding did not always produce the intended outcome....

Yet since assuming office in 2021, the Biden administration, while retaining JRI’s focus on recidivism reduction, now specifically allows grant money to support efforts to reduce incarceration for new crimes or technical violations of community supervision.  And more recently, in August 2022, as part of his 2023 budget proposal to Congress, President Biden unveiled a grant program called Accelerating Justice System Reform, which would dedicate $15 billion over 10 years for jurisdictions to implement crime prevention and public health approaches to public safety.

Building on this momentum, the Brennan Center for Justice calls on Congress to enact a new, $1 billion federal funding program, called the Public Safety and Prison Reduction Act, to channel money to states with the goal of reducing unnecessary incarceration while promoting humane and fair criminal-justice policies that preserve public safety.  The proposal, based on a previous Brennan Center policy solution — the Reverse Mass Incarceration Act — was crafted in consultation with a variety of stakeholders, including formerly incarcerated individuals.

Prison Policy Initiative reports on "Women’s Mass Incarceration: The Whole Pie 2023"

The folks at Prison Policy Initiative has released its latest update in its incarceration pie series with this new report titled "Women’s Mass Incarceration: The Whole Pie 2023" authored by By Aleks Kajstura and Wendy Sawyer. Everyone should click through to see all the great graphics that go with report, and here are parts of text toward the start and at the very end of the report:

With growing public attention to the problem of mass incarceration, people want to know about women’s experiences with incarceration.  How many women are held in prisons, jails, and other correctional facilities in the United States? Why are they there?  How are their experiences different from men’s?  Further, how has the COVID-19 pandemic changed the number of women behind bars?  These are important questions, but finding those answers requires not only disentangling the country’s decentralized and overlapping criminal legal systems, but also unearthing the frustratingly limited data that’s broken down by gender.

This report provides a detailed view of the 172,700 women and girls incarcerated in the United States, and how they fit into the even broader picture of correctional control.  We pull together data from a number of government agencies and break down the number of women and girls held by each correctional system by specific offense.  In this updated report, we’ve also gone beyond the numbers, using rare self-reported data from a national survey of people in prison, to offer new insights about incarcerated women’s backgrounds, families, health, and experiences in prison. This report, produced in collaboration with the ACLU’s Campaign for Smart Justice, answers the questions of why and where women are locked up....

Most notably, and in stark contrast to the total incarcerated population, where the state prison systems hold twice as many people as are held in jails, more incarcerated women are held in jails than in state prisons.  As we will explain, the outsized role of jails has serious consequences for incarcerated women and their families.

Women’s incarceration has grown at twice the pace of men’s incarceration in recent decades, and has disproportionately been located in local jails.  The data needed to explain exactly what happened, when, and why do not yet exist, not least because the data on women has long been obscured by the larger scale of men’s incarceration. Frustratingly, even as this report is updated using the same data sources from year to year, it is not a direct tool for tracking changes in women’s incarceration over time because we are forced to rely on the limited sources available, which are neither updated regularly nor always compatible across years....

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

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

CCJ report explores "The Relationship Between Sentence Length, Time Served, and State Prison Population Levels"

I keep noting this post from last year discussing the Council of Criminal Justice's impressive Task Force on Long Sentences, in part because that Task Force is continuing to produce all sorts of important research and analysis concerning long sentences (see prior posts linked below).  The latest report, which is available here, is authored by Gerald Gaes and Julia Laskorunsky and is titled "The Relationship Between Sentence Length, Time Served, and State Prison Population Levels."  Here is the part of the report's introduction and "key takeaways": 

Previous research for the Task Force shows that in recent years the share of the total U.S. prison population with sentences of 10 or more years has increased, driven by fewer people serving shorter terms.  In 2019, 57% of people in prison were serving a long sentence, up from 46% in 2005.  Over the same period, there was a 60% increase in the average amount of time served by people with long sentences.

This work builds on research conducted as part of the Robina Institute of Criminal Law and Criminal Justice’s Prison Release: Degrees of Indeterminacy (DOI) project, which examined the statutory and administrative policy frameworks that govern prison release (and thus time served) in each state, evaluated how these policies produced sizeable changes to time served in Colorado, and explored how back-end release discretion affects prison population levels across the United States.  This brief summarizes the relevant findings from the DOI project and provides additional analysis of the relationship between sentence length and time served.

Key Takeaways

• Actual time served in prison is often quite different from the sentence length pronounced in court, and therefore sentence length alone only partially explains the individual and policy-level implications of long sentences.
• The relationship between sentence length and time served varies greatly across states and jurisdictions due to the difference in the legal and statutory framework that governs prison release.
• States that have higher than average sentence length also have higher than average time served, but the relationship between these two factors is modest.
• The average judicial maximum sentence in states with highly indeterminate systems (7 years) is twice as long as in highly determinate states (3.5 years). However, the difference in average time served in highly indeterminate and highly determinate states is much narrower, ranging between 2.1 and 2.6 years.
• Some states are much more likely to impose long prison sentences than others. The proportion of people entering prison with long sentences ranges from 2% in Colorado to 66% in Michigan.
• Individuals serving long sentences in states with highly determinate systems spend, on average, nearly three times as long in prison as individuals serving long sentences in states with highly indeterminate systems.
• Nationally, back-end factors such as the allocation of sentence credit discounts, and for paroling states, the parole release framework explain more of the variation (60%) of average time served than variation in average sentence length (40%).
• States with identical average sentence length can have different average time served based on the degree of indeterminacy and back-end factors. For example, Oregon and Texas both had an average sentence length of 4.4 years in 2016, yet the average time served in Texas (2.1 years), a state with a high degree of indeterminacy, was lower than in Oregon (3.5 years), a state with a low degree of indeterminacy.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

New Sentencing Project report: "Counting Down: Paths to a 20-Year Maximum Prison Sentence"

The folks at the Sentencing Project have long advocated for an absolute limit on the length of prison terms, and this new 20-page report on the topic is titled "Counting Down: Paths to a 20-Year Maximum Prison Sentence."  Here is part of the report's executive summary:

In the United States, over half of people in prison are serving a decade or longer and one in seven incarcerated people are serving a life sentence.  To end mass incarceration, the United States must dramatically shorten sentences. Capping sentences for the most serious offenses at 20 years and shifting sentences for all other offenses proportionately downward, including by decriminalizing some acts, is a vital decarceration strategy to arrive at a system that values human dignity and prioritizes racial equity.

This report begins by examining the evidence in support of capping sentences at 20 years.  Countries such as Germany and Norway illustrate that sentences can be far shorter without sacrificing public safety.  A wealth of criminological evidence makes clear that unduly long sentences are unnecessary: people age out of crime, and even the general threat of long term imprisonment is an ineffective deterrent.

The Sentencing Project recommends the following seven legislative reforms to cap sentences at 20 years and right-size the sentencing structure:

1. Abolish death and life without parole (LWOP) sentences, limiting maximum sentences to 20 years.

2. Limit murder statutes to intentional killings, excluding offenses such as felony murder, and reduce homicide penalties.

3. Eliminate mandatory minimum sentences and reform sentencing guidelines to ensure that judges can use their discretion to consider mitigating circumstances.

4. Provide universal access to parole and ensure timely review.

5. Eliminate consecutive sentences and limit sentence enhancements, including repealing “truth-in-sentencing” and “habitual offender” laws.

6. Create an opportunity for judicial “second look” resentencing within a maximum of 10 years of imprisonment, regardless of an individual’s offense.

7. Shift all sentences downward, including by de-felonizing many offenses and decriminalizing many misdemeanors.

Finally, this report offers ideas for how stakeholders can take steps toward shrinking sentences today.  Prosecuting attorneys can use their discretion to limit sentences to 20 years when charging and plea bargaining, as well as engage in sentence review.  Judges can impose lower sentences where possible.  And communities can invest in interventions that prevent long sentences by keeping people from entering or reentering the criminal legal system altogether. Limiting maximum terms to 20 years need not be the end goal of criminal legal reform — 20 years is still an extraordinary length of time in prison — but it is an essential step toward a fair and proportionate justice system.

Vera Institute of Justice presents "A New Paradigm for Sentencing in the United States"

I am very pleased to see the official publication of this very interesting new report authored by Marta Nelson, Samuel Feineh and Maris Mapolski of the Vera Institute of Justice. I had the good fortune to see an early draft of this provocative document, and I hope it gets widely read and generates considerable discussion and debate. Here is a small portion of the lengthy report's executive summary:

This report posits that maintaining our system of mass incarceration will not bring people in the United States the safety and justice they deserve, while dismantling it in favor of a narrowly tailored sentencing response to unlawful behavior can produce more safety, repair harm, and reduce incarceration by close to 80 percent, according to modeling on the federal system.  In this report, the Vera Institute of Justice (Vera) addresses a main driver of mass incarceration: our sentencing system, or what happens to people after they have gone through the criminal legal system and are convicted of a crime.  The report

› provides a review of the history of sentencing in this country;

› summarizes the research and evidence surrounding sentencing’s impact on individual and community safety;

› offers new guiding principles that legislators should consider in place of the current primary reliance on deterrence, retribution, and excessive use of incapacitation;

› outlines seven key sentencing reforms in line with these guiding principles;

› models the impact of these reforms on both public safety and mass incarceration; and

› suggests a “North Star” for sentencing policy with a legal presumption toward community-based sentences except in limited circumstances....

Our current sentencing system defaults to putting most people convicted of crimes behind bars.  In 2006 in the United States — the last year in which national sentencing data was gathered — 70 percent of people convicted of state felonies ended up in prison; in the federal system, 90 percent of people convicted in 2019 did....

This default to incarceration does not build safety.  A 2021 meta-analysis of 116 studies found that custodial sentences not only do not prevent reoffending, but they can also actually increase it.  Explanations include that stripping neighborhoods of so many vital residents, including parents and breadwinners, can destabilize neighborhoods, and that the brutality of U.S. prisons, as well as the lack of opportunities after release, can negatively affect people’s behavior toward others while incarcerated — and afterward.

So how do we significantly change course? As a starting place, we must move away from retribution, deterrence, heavy reliance on incapacitation, and rehabilitation as the cornerstones of sentencing theory, policy, and practice.  These justifications for sentencing have been in currency for more than 200 years but are seldom scrutinized.  It is time to do so.

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

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

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

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

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

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

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

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

"We Can Ensure Public Safety And Still Reduce Incarceration"

The title of this post is the title of this new Law360 piece authored by Jeffrey Bellin.  The full piece is worth a full read (in part to see citations for various claims), and here are excerpts:

Between 1982 and 2010, the total amount spent by states on incarceration, including parole and probation, rose from $15 billion a year to $48.5 billion annually.  Between 1980 and 2013, annual federal corrections spending grew from under $1 billion to almost $7 billion.

That's why reducing jail and prison populations shouldn't be controversial.  It is mass incarceration that is the radical, expensive and unproven government policy.  And it is a policy that the country chose largely by accident.  In the early 1970s, this country's incarceration and crime rates were low and unremarkable. Then, a temporary crime spike spurred a new age of bipartisan penal severity....

There is, in fact, little correlation between violent crime and harsh or lenient criminal justice policies.  Understanding the past — and the unnecessary choices that this country made in response to the 1970s crime spike — is the best hope for a different future.

Sexual violence, armed robberies and murders were all serious crimes prior to the 1970s and were vigorously prosecuted.  But that's where the similarities between past and present end.  We didn't use to arrest, much less prosecute, so many drug offenders. We didn't use to hold so many people in jail prior to trial.  We used to sentence people to shorter prison terms.  And we relied on parole boards to let people out of prison, ensuring that prisons did not, as now, fill with the sick and elderly....

We used to be better at preventing violence and better at solving serious crimes, probably because that is where law enforcement focused its resources.  The people who suffer the brunt of violent crime typically embrace that focus — and their cooperation is a key factor in reducing crime.

When the police are viewed as working to solve and prevent serious violent crimes, the community turns out to support those efforts.  But if officers are viewed as arbitrary, incompetent and worse, the witnesses they rely on to help solve serious crimes become less likely to volunteer information.

While it is important to focus on reducing violent crime, there is no evidence that reembracing the policies that fueled mass incarceration will do that.  Those policies may even prove counterproductive.  For example, a December 2021 study from the Cato Institute found that certain prosecutions actually increased, rather than decreased, the likelihood of future crime.

We should put aside tough-on-crime rhetoric and focus on preventing violence in more promising ways, like those offered by the Council on Criminal Justice's Violent Crime Working Group to prevent gun violence before it happens.

The emerging resistance to criminal justice reforms illustrate not the merit of tough-on-crime policies, but the stubborn rhetorical appeal of the policies that fuel mass incarceration.  These policies are everywhere, the result of countless changes to local, state and federal laws and processes that emerged over decades.  A few of those changes targeted the violent crimes that grab the headlines, but most did not.

This complexity means that while there is no silver-bullet solution to our overreliance on incarceration, we can continue to reduce prison and jail populations without threatening public safety.

Our current incarceration rate — over 500 incarcerated per 100,000 people — still far exceeds our long-standing historical rate of around 100 per 100,000, as well as the incarceration rates of other, lower-crime countries, including England, France, Germany and Japan.  As our own history and the much lower incarceration rates around the world reveal, we do not need to choose between less violence and less incarceration.  We can have both.

UPDATE: Thanks to social media, I just saw that Keith Humphries authored a similar commentary just published in the Washington Monthly.  The full title of this new piece highlights its themes: "Violent Crime and Mass Incarceration Must be Tackled Together: Conservatives and liberals need to hear each other for us to become a low-crime, low-incarceration society. There are policies that can help." Here is the commentary's closing paragraph:

At the risk of sounding like I’m to break out into the chorus of Kumbaya, there is a rational way forward for both sides to move America into the low-crime, low-incarceration quadrant populated by most other developed nations.  This would require the tough-on-crime camp to give up on the idea that more incarceration will reduce violence and the anti-incarceration camp to stop minimizing violent crime in America.  (“It was worse in the 1980s,” a familiar refrain, is of no comfort to today’s grieving families of murder victims.)  Instead, both sides could rally around the range of health (e.g., expanding Medicaid), law enforcement (e.g., focused deterrence), and tax policies (e.g., raising the price of alcohol) that have good evidence of reducing violent crime, which in turn will reduce incarceration.  This policy agenda will require a broad coalition.  The first step towards that is for everyone in the debate to recognize that the people they’ve been yelling at have a good point, too.

"Joe Biden Hasn’t Kept His Promise to Reduce the Prison Population"

The title of this post is the title of this new opinion piece in the Daily Beast authored by Nazgol Ghandnoosh and Bill Underwood.  Here are excerpts:

For thousands of people in federal prisons and their loved ones, the last session of Congress ended on a heartbreaking note.  Despite high hopes and bipartisan support for several sentencing bills, Congress failed to pass any meaningful reform during 2022.

That repeated failure — coupled with the Bureau of Prisons’ refusal to make adequate use of compassionate release, and President Joe Biden’s limited use of executive clemency — has translated into the federal prison population increasing for the past two years (after nearly a decade in decline), despite the president’s promise to cut it by half.

This year, Congress must do better.  It’s time to pass the EQUAL Act, the First Step Implementation Act, and the COVID-19 Safer Detention Act.

We know firsthand the profound need for sentencing reform.  One of us served 33 years of a life sentence in federal prison before receiving compassionate release.  The other is a sentencing researcher who has documented the growth and harms of lengthy prison sentences. We’ve lived and studied the dramatic rise in the federal prison population and we know the urgency of finding solutions.

Federal prisons imprisoned 25,000 people in 1980.  Today, they imprison more than six times that — nearly 160,000 people. (Fortunately, today’s count does represent a 27 percent reduction from 2013, when the population was at its peak of 219,000 people.)

The past decade of legislative reforms and policy changes, amplified during the early pandemic, have downsized federal prisons. But in the absence of new reforms by Congress and bold action by the administration, the federal prison population has grown again for the past two years.

VERA Institute provides first-person accounts of "The Human Toll of Jail"

Via email today I learned that the Vera Institute of Justice has launched another round of first-person essays about jail experienced under the titled "The Human Toll of Jail."  Here is how the project is introduced on the site's main webpage (with links from the original):

Every year, people cycle through the revolving doors of the more than 3,000 jails operating in the United States — too often invisible to the public.  But the truth of this hidden population is that the roughly 10.3 million annual U.S. jail admissions cause immense harm and disruption to people’s lives, families, and communities.

In 2016, the Vera Institute of Justice launched the Human Toll of Jail project to humanize the costs of incarceration and uplift true stories about people whose lives are affected by jail, in their own words.  The project featured essays by people who had spent time in jail, their families and communities, and people who work in the system.

In 2023, mass incarceration continues to be the default setting of the U.S. “justice” system, and the conversation about the misuse of jails isn’t over.  Vera has now partnered with PEN America’s Prison and Justice Writing program to embark on a second round of stories from people living the harsh realities of life behind bars.

Together, Vera and PEN invited submissions from currently incarcerated people, who give an up-close and honest view of life within U.S. jails today.  From a wide-ranging pool of submissions, a selection committee chose eight winners, whose work appears here with custom illustrations inspired by each essay.  With these personal and eye-opening essays, Vera and PEN America seek to amplify the voices of incarcerated writers, further conversations about the horrors and trauma of jail, and ultimately, ensure that people in the system are treated with dignity.

"Where people in prison come from: The geography of mass incarceration"

The title of this post is the title of this new report from the Prison Policy Initiative authored by Emily Widra. Here is how the data-heavy report gets started:

One of the most important criminal legal system disparities in the United States has long been difficult to decipher: Which communities and neighborhoods throughout the state do incarcerated people come from?  Anyone who lives in or works within heavily policed and incarcerated communities intuitively knows that certain neighborhoods disproportionately experience incarceration.  But data have rarely been available to quantify how many people from each community are imprisoned with any real precision.

But now, thanks to redistricting reforms that ensure incarcerated people are counted correctly in the legislative districts they come from, we can understand the geography of incarceration in twelve states with up-to-date data. These twelve states — California, Colorado, Connecticut, Delaware, Maryland, Montana, Nevada, New Jersey, New York, Pennsylvania, Virginia, and Washington — are among the states that have ended prison gerrymandering, and now count incarcerated people where they legally reside — at their home address — rather than in remote prison cells.  This type of reform, as we often discuss, is crucial for ending the siphoning of political power from disproportionately Black and Latino communities to pad out the mostly rural, predominantly white regions where prisons are located.  And when reforms like these are implemented, they bring along a convenient side effect: In order to correctly represent each community’s population counts, states must collect detailed state-wide data on where imprisoned people call home, which is otherwise impossible to access.

These data also allow us to better understand how incarceration rates correlate with other community problems related to poverty, employment, education, and health.  While the data is not comparable between states, it does show us meaningful patterns in incarceration and researchers, scholars, advocates, and politicians can use the data in this report to advocate for programs and services housed outside the criminal legal system in the communities that need them most.

"A World Without Prosecutors"

The title of this post is the title of this new essay now on SSRN authored by Jeffrey Bellin.  Here is its abstract:

This Essay is part of a Symposium of responses to Bennett Capers’ provocative article, Against Prosecutors.  Capers proposes to (largely) abolish public prosecutors, a reform he suggests would slash the number of people incarcerated, particularly for drug crimes, and return the power of prosecution to the people.

Using data from my new book, Mass Incarceration Nation, this Essay suggests that Capers' proposal is unlikely to have the promised benefits because it targets only one of the many drivers of American criminal law.  Prosecutors matter. But they are one piece of a large and complex puzzle.  And most importantly, prosecutors are primarily reactive, responding to the laws enacted by legislators and the arrests made by police.  Capers’ proposal makes perfect sense if prosecutors are truly the one thing responsible for mass incarceration and the primary driver of drug enforcement.  If, however, politicians and police are also (or even primarily) pushing the “tough on crime” agenda, jettisoning public prosecutors becomes a murky policy prescription and may prove counterproductive.

Council on Criminal Justice releases Illinois analysis of "The Public Safety Impact of Shortening Lengthy Prison Terms"

I keep noting this post from earlier this year discussing the Council of Criminal Justice's impressive Task Force on Long Sentences.  That Task Force keeps producing all sorts of interesting documents about long sentences (see prior posts here and here), and this latest report is authored by Avinash Bhati and titled "The Public Safety Impact of Shortening Lengthy Prison Terms."  This press release about the report provides this background and some particulars:

Shortening Illinois prison sentences of 10 years or more by modest amounts would result in very few additional arrests, cutting the state prison population significantly without jeopardizing public safety, according to a new analysis for a Council on Criminal Justice (CCJ) task force.

Reducing lengthy prison terms by as much as 30% would result in “a virtually undetectable increase” (less than one tenth of one percent) in annual arrests statewide, according to the report for CCJ’s Task Force on Long Sentences, which was produced in partnership with the Illinois Sentencing Policy Advisory Council (SPAC). Most additional arrests would be for drug, property, and other nonviolent crimes.

More than 1,100 people were released from Illinois prisons during the three-year study period, after serving a decade or more; the group served an average of nearly 19 years. While any additional arrests are cause for concern, the research estimates that reducing prison time served by those in the study group by one, two, or three years would result in between 11 and 37 additional arrests; in 2020, there were 89,173 total index crime and drug arrests in Illinois. No individual in the study group was estimated to have more than one additional arrest....

The research was conducted by the data analytics firm Maxarth LLC, which analyzed detailed arrest history data for the 1,127 people released from Illinois prisons between June 2016 and June 2019. For those who had served 10 years or more, researchers then created “microsimulations” to estimate the number of arrests that were averted due to the individuals’ long prison stays. (Details on the calculations and analysis can be found in the report methodology.)

Reductions in the size of the prison population, the analysis found, would range from a 2.4% drop if prison terms were trimmed by 10% (or 1.9 years), to a 7.2% cut if sentences were shortened by 30% (or 5.7 years). Such reductions represent potential cost savings. A separate 2021 analysis by SPAC found that a 3,000-person reduction in the average daily prison population, along with a reduction in staffing, could represent nearly $148 million in annual state correctional appropriations. Saltmarsh said that while these reductions in and of themselves would not automatically produce cost savings for Illinois, they could lead legislators to make different choices about how to fund IDOC’s general operations.

Prison Journalism Project taking a deep dive into "The Graying of America’s Prisons"

The Prison Journalism Project, which aspires to bring "transparency to the world of mass incarceration from the inside and training incarcerated writers to be journalists," this week is debuting a new "special project on America’s graying prison system."  This introductory article is fully titled "The Graying of America’s Prisons: In a first-of-its-kind project, PJP contributors chronicle the now ubiquitous experience of growing old behind bars."  This article starts, and sets the tone for the special project, in this way (links from the original):

Prison makes an awful elderly care facility, yet more prisons are rapidly becoming just that.

Thanks in large part to longer prison sentences and decreasing rates of parole, the number of incarcerated people 55 and older has climbed from 48,000 to 160,000 over the last two decades. 

In 2019, this age cohort made up 63% of state prison deaths for the first time since figures were tracked, according to the most recent data available. 

That’s why Prison Journalism Project is debuting a special project on America’s graying prison system.  Over the coming weeks, we’ll publish stories every Tuesday and Thursday from incarcerated writers that chronicle different facets of growing old behind bars. We will collect the stories below as they appear on the website.  Eric Finley brings us the first essay in the series, in which he explains the explosion of older people inside the Florida Department of Corrections. 

In the weeks to come, writers Mithrellas Curtis and Chanell Burnette will share stories on the legal battle for adequate senior health care inside their Virginia prison.

"Just for Kids? How the Youth Decarceration Discourse Endorses Adult Incarceration"

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

This article lays bare three interrelated and previously overlooked pitfalls of calls to reduce or abolish youth incarceration.  First, despite their anti-carceral semblance, such calls persistently portray the overwhelming majority of people in trouble with the law — namely, adults — as incorrigible, blameworthy, and therefore as deserving of punishment and imprisonment.  Second, this ageist rhetoric often disregards adult vulnerability.  Thus, despite adults’ greater medical vulnerability to the COVID-19 disease, it is youth whom some organizations singled out or even called to prioritize for release from prisons during the coronavirus pandemic.  Third, at the heart of the youth decarceration discourse are essentialist assumptions about youth, which rest on questionable science and downplay the socially constructed dimension of age differences.  All three pitfalls epitomize a dual fault of the child rights discourse more broadly, as evidenced in other contexts: repeatedly lending legitimacy to punitiveness and apathy toward adults while also working to the detriment of children.  Doubtless, there are compelling arguments against penal confinement, but it is only decarceration across the age spectrum that can truly challenge carceral thinking — and ageism.

Council on Criminal Justice releases "Reflections on Long Prison Sentences: A Conversation with Crime Survivors, Formerly Incarcerated People, and Family Members"

In this post last year, I noted the formation of the Council of Criminal Justice's impressive Task Force on Long Sentences.  Today,  CCJ released its latest publication from the Task Force, titled "Reflections on Long Prison Sentences: A Conversation with Crime Survivors, Formerly Incarcerated People, and Family Members."  This full 20-page report is worth a full read, and here are the document's "Key Takeaways":

While participants shared their experiences with long sentences from different perspectives, the views expressed reflected numerous common themes. These included:

+ Prison sentences-including long sentences-should serve the purpose of rehabilitation, a goal that many participants said was often impeded by a lack of programming in prisons.

+ Long sentences are not synonymous with accountability; rather, accountability comes from taking responsibility for the harm caused and making amends through personal changes.

+ People serving long sentences should have the opportunity to seek reconsideration of that sentence after a period of time through a process that bases release decisions, in part, on the cognitive, behavioral, and/or emotional growth individuals make while incarcerated.

+ Victims and survivors of crime should have a role in any sentencing reconsideration.

Participants made several specific recommendations in line with these themes.  These included:

+ Provide programming and counseling to all individuals serving long sentences

+ Permit crime victims and survivors to request specific programming for the defendant in their case to complete while incarcerated, as part of pre-sentencing investigation reports

+ Provide victims and survivors, upon request, with information regarding expressions of remorse, educational or skills training, and other personal changes made by incarcerated individuals in their cases

+ In cases of sentencing reconsideration, provide victims and survivors general information about supports available to the incarcerated person post-release

+ Provide more opportunities for victim-offender dialogue throughout long prison sentences

+ Enhance transparency and communication during criminal justice processes and create mechanisms for quickly referring victims and survivors to community-based counseling and other therapeutic services

+ Give judges more complete contextual information about the background of the person being sentenced or resentenced, including facts about the impact of the crime(s) on victims and survivors

+ Provide earlier intervention and healing to at-risk children to prevent future crime, sparing individuals, families, and communities from the pain of violence and from the loss of young persons to long prison sentences

Gearing up for a new federal sentencing year that might finally bring some new guideline amendments

Branch by branch, there are a lot of federal sentencing stories to watch as we start a new year.  The last Congress made (halting) progress on some statutory sentencing reforms, but nothing major made it all the way to the President's desk.  With the House of Representatives in GOP control in the new Congress, legislative dynamics have changed in ways that might diminish the prospects for any big reforms in 2023.  But with murder rates ticking down a bit in 2022 and crime narratives seemingly not having a huge midterm poitical impact, perhaps some modest consgressional reform could still happen in the coming year.

On the executive front, I will be watching closely for early impacts of Attorney General Garland's new charging and sentencing memos (basics here).  It will be particular interesting to see the effect of AG Garland's instructions to federal prosecutors to "promote the equivalent treatment of crack and powder cocaine offenses."  And, with Prez Biden having used his clemency powers a few times in 2022 (with grants in April, October and December), maybe executive grace as well as prosecutorial discretion will continue to impact federal sentencing realities in the coming year.

The judicial branch is the arena in which I am expecting the most action in this new year.  Focusing the courts, we may see in the coming weeks if the Supreme Court is finally ready to address acquitted conduct sentencing enhancments (details here).  Other notable sentencing issues may also make their way to the SCOTUS docket because circuits are split on important topics like deference to the guidelines and application of a key part of the FIRST STEP Act.  Other notable sentencing issues are sure to keep gurgling in district and circuit courts in the year ahead.

But I can most confidently predict judicial branch sentencing action in 2023 because the US Sentencing Commission, which is located in that branch, is finally now fully loaded and is hard at work on potential guidelines reforms.  The Commission has now officially announced that it will have a public meeting on January 12, 2023 with an agenda to include "Possible Vote to Publish Proposed Guideline Amendments and Issues for Comment."  Though we should not expect the USSC to advance amendments on all the topics mentioned in its ambitious list of priorities, we are sure to get some notable and impactful proposals to start the year from the Commission.

Notably, though the USSC's work is primarily focused on the sentencing guidelines, the agency can have real impact on other aspects of the justice system.  This new Forbes article by Walter Palvo, headlined "A Federal Public Defender Challenges U.S. Sentencing Commission To Help Fix The Bureau Of Prisons," highlights Steve Sady's new article in the Federal Sentencing Reporter urging the USSC to "make recommendations regarding the Bureau of Prisons’ execution of Guidelines sentences."  Here is an excerpt from the Forbes piece:

I recently spoke to Stephen Sady, Chief Deputy Federal Public Defender for the District of Oregon about a paper he wrote that was critical of the BOP but stated that the United States Sentencing Commission (USSC) could encourage the BOP to balance long guideline sentences by implementing ameliorative statutes that reduce actual prison time. As Sady told me, “The BOP has failed to adequately implement critical legislation to improve the conditions of people in prison.”

As Sady points out, even as Congress has repeatedly provided options and directives that would reduce the time defendants spend in prison, the BOP has failed to implement the full scope of the available authority, resulting in expensive and pointless over-incarceration. The most important of these can be put into six categories, 1) Increase the availability of community corrections commensurate with repeated statutory directives for greater use of residential reentry centers and home confinement (18 U.S.C. § 3624(c)), 2) Expand eligibility and availability of sentence reductions under Residential Drug Abuse Program (RDAP), 3) Eliminate computation rules that create longer sentences, 4) Implement broader statutory and guideline standards to file compassionate release motions any time extraordinary and compelling reasons exist, 5) Revive the boot camp program to provide nonviolent offenders sentence reductions and expanded community corrections and 6) Fully implement the First Step Act’s earned time credit program (18 U.S.C. §§ 3632(d) and 3624(g)). No new legislation would be required for any of these reforms. “It’s a pragmatic approach,” Sady said, “that uses the laws already in place to do what the BOP should already be doing. This is not a stretch.”

Interesting times as we start a new year.

Council on Criminal Justice releases "Long Sentences: An International Perspective"

In this post earlier this year, I noted the formation of the Council of Criminal Justice's impressive Task Force on Long Sentences.  Today, this CCJ press release, titled "New Analysis Shows U.S. Imposes Long Prison Sentences More Frequently than Other Nations," reports on a new issue brief from the CCJ Task Force.  Here are the details from the press release:

New research released today by a Council on Criminal Justice (CCJ) task force shows that while the use of prison sentences of 10 years or more has increased globally in recent decades, the United States is an outlier among nations in the extent to which it imposes them.

Long sentences are imposed more frequently and are longer on average in the U.S. compared with most other countries, according to the analysis produced for CCJ’s Task Force on Long Sentences by Prof. Lila Kazemian of the John Jay College of Criminal Justice.  The average long sentence in the U.S. is more closely aligned with criminal justice practices in Mexico, El Salvador, and other Latin American countries than with those of peer nations in Europe.

Differences in the actual amount of time people serve behind bars are smaller, the study found, owing to requirements in some countries that people serve greater portions of their court-imposed sentences before release.

The higher rate of homicide in the U.S. compared with European countries partially explains its more frequent use of long sentences, according to original calculations.  For instance, the report says that “while Georgia and Alabama were ranked first and second for the percent of the prison population sentenced to 10 or more years, these states dropped down to the 36th and 55th ranks, respectively, with the adjustment for their higher homicide rates.  Luxembourg, Italy, Spain, Croatia, and Utah are the top five users of long sentences adjusted for homicide rates.  Norway, which is ranked among the lowest nations for incarceration rate (73rd out of 75 jurisdictions included in the comparison) and percentage of people serving long prison terms (70th out of 75), jumps up to the 16th spot when considering its low homicide rate.”

“This is the most authoritative and comprehensive report to date on how long sentences in the U.S. compare with those in other nations,” said John Maki, director of the Task Force on Long Sentences. “Its findings underscore the uniquely severe features of U.S. sentencing, which has more in common with developing nations than other affluent countries.”

Because criminal justice policies and incarceration rates vary dramatically across U.S. states, Kazemian compared sentencing trends in individual states with other nations.  A higher proportion of long sentences in a jurisdiction could either be the result of greater use of such sentences or of less use of prison for more minor offenses.  As such, a high proportion of long sentences is not synonymous with more punitive sentencing policies and practices.

Additional findings in the report show that:

• Many European countries have increased their use of long sentences in recent decades.  In Germany, for instance, the proportion of the long-term prisoner population sentenced to life imprisonment increased from 21.4% in 1995 to 30.2% in 2012.

• For homicide and rape — the crimes most likely to result in a long sentence — Australia and the U.S. were leaders in the amount of time people actually serve behind bars, according to the most recent available data, with England, Wales, and Scotland not far behind.

• Comparisons of average sentence length for homicide show that the U.S. has the longest sentences among nations at 40.6 years, compared to 34.2 years for Mexico (ranked second) and 6.1 for France.  The higher average sentence length in the U.S. may partly reflect the fact that American policies allow for sentences exceeding 100 years.

• The U.S. holds a substantial portion (40%) of the world’s population of people serving life sentences, as well as the vast majority (83%) of those sentenced to life without the possibility of parole.  While most jurisdictions with life sentencing laws have a provision for release, the amount of time people must serve before becoming eligible varies widely. In Belgium, Denmark, and Finland, it’s 12 years or less. In Georgia, it’s 30 years and in Texas it’s 40 years.

The Bureau of Justice Statistics releases data on "Jail Inmates in 2021" and "Prisoners in 2021"

Just in time to ring in 2023, the Bureau of Justice Statistics in the US Department of Justice has a lot of great new data about incarceration levels and rates as of the end of 2021. This press release, titled "U.S. Jail Population Increased While Prison Population Decreased in 2021," provides these highlights (and links) to the lastest data:

The Bureau of Justice Statistics is announcing the release of statistical tables on Jail Inmates in 2021 and Prisoners in 2021. Of note, the two incarcerated populations diverged in 2021, with the number of persons held in local jails increasing by 16% from 2020, while the number of persons in prison decreased 1%.  Both populations decreased from 2019 to 2020 due to the COVID-19 pandemic.

Regarding the jail population, local jails held 636,300 persons on the last weekday in June 2021, up from 549,100 at midyear 2020.  The number of males confined in local jails increased 15% from 2020 to 2021, while females increased 22%.

The racial and ethnic composition of people held in local jails remained stable from 2020 to 2021.  At midyear 2021, about 49% of people in local jails were white, 35% were black, and 14% were Hispanic. American Indians or Alaska Natives; Asians, Native Hawaiians, or Other Pacific Islanders; and persons of two or more races together accounted for 2% of the total jail population.

At midyear 2021, 29% of persons held in jail (185,000) were convicted, either serving a sentence or awaiting sentencing on a conviction, while 71% (451,400) were unconvicted, awaiting court action on a current charge or held in jail for other reasons.  Unconvicted people in jail accounted for 81% of the increase in the jail population from midyear 2020 to midyear 2021.  Three-quarters (76%) of all persons incarcerated in local jails at midyear 2021 were held for felony offenses (485,700 persons) compared to 18% (114,000) for misdemeanors and 6% (36,600) for other types of offenses.

Based on the occupancy rate, jails are still less crowded than about a decade ago.  At midyear 2021, about 70% of jail beds were occupied, which is higher than the occupancy rate of 60% at midyear 2020 but lower than the rates from 2011 to 2019, which ranged from 81% to 85%.

The number of persons supervised by local jails outside of a jail facility increased by 12,100 (31%) from midyear 2020 to midyear 2021.  At midyear 2021, local jails supervised 50,800 persons in various programs, such as electronic monitoring, home detention, day reporting, community service, alcohol or drug treatment programs, and other pretrial supervision and work programs outside of a jail facility.

Regarding the U.S. prison population, for the eighth consecutive year, the number of persons held in U.S. prisons declined, dropping from 1,221,200 at yearend 2020 to 1,204,300 at yearend 2021.  The overall decline reflected a decrease in prison populations in 32 states that was offset by an increase in 17 states and the federal Bureau of Prisons (BOP). This one-year change is vastly different from 2019 to 2020, when 49 states (data for Idaho are not comparable) and the BOP had a decrease in the number of persons in prison, largely due to the COVID-19 pandemic.

The imprisonment rate for adult U.S. residents in state or federal prison serving a sentence of more than one year also declined (down 2%) from yearend 2020 to 2021, from 460 to 449 sentenced prisoners per 100,000 adult U.S. residents.  Over the 10-year period from 2011 to 2021, the adult imprisonment rate declined 30%.

Among racial and ethnic groups, black persons had the highest imprisonment rate in 2021 (1,186 per 100,000 adult black residents), followed by American Indian/Alaska Natives (1,004 per 100,000), Hispanics (619 per 100,00), whites (222 per 100,000) and Asians (90 per 100,000).  Compared to 2011, adult imprisonment rates declined for all racial and ethnic groups in 2021, including a 40% decrease for black persons, 37% for Hispanics, 34% for Asians, 27% for whites, and 26% for American Indian/Alaska Natives.

Regarding the offense for which people were imprisoned, more than 651,800 persons (62% of all state prisoners) were serving sentences in state prison for a violent offense at yearend 2020, the most recent year for which offense data were available.  Forty-seven percent (66,500) of all persons in federal prison were serving time for a drug offense on September 30, 2021 (the most recent date for which federal prison offense data were available), and an additional 20% (28,500) of persons sentenced to federal prison were serving a sentence for a weapons offense.

At yearend 2021, private facilities contracted to state departments of corrections or the BOP held 96,700 persons, a 3% decrease from yearend 2020.  Local jail facilities held an additional 65,400 state or federal prisoners, down 11% from yearend 2020.  Together, private and local facilities housed more than 13% of the total U.S. prison population in 2021.

The findings in the Jail Inmates in 2021 – Statistical Tables report are based on data from BJS’s Annual Survey of Jails, which BJS has conducted annually since 1982, and Census of Jails, which BJS has conducted periodically since 1970. It is the 35th report in a series that began in 1982.  Findings in the Prisoners in 2021 – Statistical Tables report, the 96th report in the series, are based on data from BJS’s National Prisoner Statistics program, which has collected data on the U.S. prison population annually since 1926.

Jail Inmates in 2021 – Statistical Tables (NCJ 304888) was written by BJS Statistician Zhen Zeng, PhD. Prisoners in 2021 – Statistical Tables (NCJ 305125) was written by BJS Statistician E. Ann Carson, PhD. 

"Mass Incarceration Nation: How the United States Became Addicted to Prisons and Jails and How It Can Recover (Excerpt)"

The title of this post is the title of a new book authored by Jeffrey Bellin and an excerpt is now available here via SSRN.  Here is the associated abstract:

Despite some reductions in recent years, the United States continues to imprison a stunningly high proportion of its population.  And the modest reforms enacted so far face an uncertain future in light of a growing perception of rising crime and the persistent allure of “tough on crime” politics.

Lasting progress requires an understanding of the true complexity of mass incarceration, including the myriad factors that fuel the phenomenon.  A new book, Mass Incarceration Nation: How the United States Became Addicted to Prisons and Jails and How It Can Recover, offers that understanding, providing a novel, descriptive account of the rise of mass incarceration that draws on the author’s experience both as an academic researcher and as a participant in the phenomenon (as a former prosecutor).  The final part of the book turns this descriptive account into a prescription for reform.  By highlighting the precise mechanisms by which legislators, police, prosecutors, judges, and other officials, overfill our prisons and jails, the book reveals a path to returning to the low incarceration rates (and low crime) that characterized the United States prior to the 1970s.

This excerpt includes the Table of Contents and the Introduction to the book, now available from Cambridge University Press.

Highlighting still more notable new Inquest essays

I continue to struggle to find time to keep up with the steady stream of great pieces regularly posted at Inquest.  As regular readers know from my regular postings, Inquest, "a decarceral brainstorm," keeps churning out must-read essays, and I try to keep up just by flagging here some of the recent sentencing/prison pieces folks may want to be sure check out:

By Katharine Blake, "A New Clarity: In search of an abolitionist language"

By Marcus Kondkar, "Face to Face: The Visiting Room offers an intimate glimpse into the stories of Louisianians serving life without parole"

By Abbe Smith, "Bars and Barriers: Far from a decarceral plan, 'Barred' is nonetheless a trenchant look at how the criminal system fails the innocent and guilty alike"

By Candice Delmas, "A Weapon of Last Resort: It's time to reconsider the power and promise of hunger strikes — without denying the tactic’s radical, disruptive, and violent character"

New Sentencing Project report covers "Why Youth Incarceration Fails: An Updated Review of the Evidence"

Via email, I learned of this lengthy new report from The Sentencing Project titled "Why Youth Incarceration Fails: An Updated Review of the Evidence."  Here is the start of the report's executive summary:

Though the number of youth confined nationwide has declined significantly over the past two decades, our country still incarcerates far too many young people.

It does so despite overwhelming evidence showing that incarceration is an ineffective strategy for steering youth away from delinquent behavior and that high rates of youth incarceration do not improve public safety.  Incarceration harms young people’s physical and mental health, impedes their educational and career success, and often exposes them to abuse.  And the use of confinement is plagued by severe racial and ethnic disparities.

This publication summarizes the evidence documenting the serious problems associated with the youth justice system’s continuing heavy reliance on incarceration and makes recommendations for reducing the use of confinement. It begins by describing recent incarceration trends in the youth justice system.  This assessment finds that the sizable drop in juvenile facility populations since 2000 is due largely to a substantial decline in youth arrests nationwide, not to any shift toward other approaches by juvenile courts or corrections agencies once youth enter the justice system. Most youth who are incarcerated in juvenile facilities are not charged with serious violent offenses, yet the United States continues to confine youth at many times the rates of other nations.  And it continues to inflict the harms of incarceration disproportionately on Black youth and other youth of color -- despite well-established alternatives that produce better outcomes for youth and community safety.

BOP reports that all federal inmates have been moved out of private prisons

As this ABC News piece reports, all "federal inmates housed in private prisons have been moved to Bureau of Prisons facilities and the agency has ended all contracts with private facilities, officials said." Here is more:

Last year, in one of his first actions in office, President Joe Biden signed an executive order directing BOP to move all inmates to federal facilities, rather than have them housed in private facilities.  "We have never fully lived up to the founding principles of this nation, to state the obvious, that all people are created equal and have a right to be treated equally throughout their lives," Biden said just before signing the actions in January 2021.  "And it's time to act now, not only because it’s the right thing to do. Because if we do, we'll all be better off."...

Advocates, including the ACLU, have said that private prisons reap lucrative financial rewards while taking advantage of people who are behind bars.

On Nov. 30, the McRae Correctional Facility in McRae, Georgia, was closed, making it the final facility to shutter its doors. Biden signed an order directing the attorney general to not renew contracts the Department of Justice has with privately-operated criminal detention facilities.  As expected it took about a year to complete the transition.

"BOP and privately managed facilities remained positive, while maintaining transparency and accountability," a release from BOP said.  "BOP inmates housed in these private prisons have been transferred to BOP facilities.  In the mid-1980s, the BOP began designating low security inmates with specialized needs, such as sentenced criminal aliens, to privately managed facilities to better manage the increasing population.  Over time, the BOP maintained contracts for 15 facilities, housing approximately 29,164 inmates. The overall BOP population peaked in 2013, with over 219,000 inmates."

The head of the Bureau of Prisons union told ABC News that the prison population has declined to a point where private prisons aren't needed, and has said previously the agency supports the president's decision to shutter private prisons.  "The fact remains that our population has declined to the point where we can safely return offenders who were temporarily housed in private prisons to vacant BOP facilities," Shane Fausey, president of the Council of Prison told ABC News through a text message. "The reality is additional beds are no longer needed and the most cost effective measure is not to renew or further private prison contracts at this time."

"Punishment Externalities and the Prison Tax"

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

Punishment as a social institution has failed to live up to the quixotic ideals of theory and has descended into the practice of mass incarceration, which is one of the defining failures of this generation.  Scholars have traditionally studied punishment and incarceration as parts of a social transaction between the criminal offender, whose crime imposes a cost to society, and the state that ensures the offender repays this debt by correcting past harms and preventing future offenses.  But if crime has a cost that must be repaid by the offender, punishment also has a cost that must be repaid by the state.  These social costs of punishment start by impacting the offender, but inevitably ripple out into the community.

While the costs of crime remain a predominant theme in criminal justice, scholars have also recorded the economic, political, and social costs of punishment.  This Article contributes to this literature by proposing a paradigm shift in punishment theory that reconceptualizes punishment as an industry that produces negative externalities.  The externality framework recognizes punishment and its practice of mass incarceration as an institution that purports certain benefits, but also must be balanced with the overwhelming social costs it produces in the community.

Viewing punishment and the carceral state as an externality problem that accounts for community costs creates a unique synergy between law & economics and communitarianism that deepens punishment theory while carrying the practical value of exploring externality-based solutions.  This Article argues for a Pigouvian prison tax, among other externality solutions, that will gradually lower the prison population while reinvesting revenue in the most impacted communities to mitigate punishment’s social costs in future generations.

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

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

The reforms focus on nine areas:

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

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

"The Inherent Problem with Mass Incarceration"

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

For more than a decade, activists, scholars, journalists, and politicians of various stripes have been discussing and decrying mass incarceration.  This collection of voices has mostly focused on contingent features of the phenomenon. Critics mention racial disparities, poor prison conditions, and spiraling costs.  Some critics have alleged broader problems: they have called for an end to all incarceration, even all punishment. Lost in this conversation is a focus on what is inherently wrong with mass incarceration specifically.  This essay fills that void and supplies an answer, drawing on the early modern English philosopher Thomas Hobbes.  On the Hobbesian account developed here, mass incarceration is always wrong because it is always inconsistent with having a free society.

Rounding up recent disheartening stories in incarceration nation

In recent days, I have seen a number of notable stories and commentaries focused on various discouraging incarceration realities in US prisons and jails:

From The Marshall Project, "Why So Many Jails Are in a ‘State of Complete Meltdown’"

From NBC News, "Tech glitch botches federal prisons' rollout of update to Trump-era First Step Act"

From the New York Post, "Rikers Island detainee is 18th person to die in NYC’s prison system in 2022"

From the New York Times, "‘Dying Inside’: Chaos and Cruelty In Louisiana Juvenile Detention"

From the Omaha World Herald, "‘Waiting on death’: Nebraska prisoners are getting older, and it’s costing taxpayers"

From PennLive, "Sick people in Pa. jails are suffering, dying: ‘The Constitution allows for medical neglect’"

From the Reno Gazette-Journal, "Inmate deaths, drug overdoses on rise at Washoe County Jail"

From Washington Monthly, "Do Prisons Need to Be Hellholes?"

From WSB-TV, "Reality star Joe Exotic says zoo has better living conditions than Atlanta Federal Penitentiary"

Might the recent marijuana pardons by Prez Biden "make things worse for criminal legal reform"?

The question in the title of this post is prompted by this new Slate commentary by John Pfaff headlined "Biden’s Focus on Marijuana Is Part of the Problem." One should read the full lengthy piece to understand the full "hot take," but here are some excerpts (with my complaints to follow):

A bigger concern, though, is not just that the policy might accomplish very little, but that it might make things worse for criminal legal reform in the long run because it reinforces a false narrative about the causes of mass punishment in general and mass incarceration in particular.  It’s a narrative that shapes — or, better put, misshapes — policy.

Most Americans are deeply misinformed about why people are in prison.  A survey in 2017 found that solid majorities across the ideological spectrum agreed with the claim that a majority of people in U.S. prisons are there for drug crimes. That’s a far cry from reality: 14 percent of people in state prisons were locked up for drug offenses at the time, a number that has fallen since then.  (Those held in state prisons make up 90 percent of the nation’s incarcerated population.)  This misbelief likely contributed to the next two results from that survey: while majorities of liberals, moderates, and conservatives favored lesser sanctions for those convicted of non-violent crimes who posed little risk of reoffending, majorities of all three groups also opposed lesser sanctions for those convicted of violence who likewise pose little risk of reoffending.

We think we can decarcerate with easy choices.  We cannot.

Nationally, in 2019 almost 60 percent of all people in state prisons were convicted of violence; those convicted of just homicide or rape make up nearly 30 percent of the overall prison population....  If we released everyone held in state prisons convicted not just of marijuana crimes, nor just of drug offenses, but of all non-violent offenses combined, we would still have one of the world’s highest incarceration rates.  Unsurprisingly, this means that violent crimes are also at the heart of racial disparities in U.S. prison populations, as a recent study by the Council on Criminal Justice made clear.

Yet reforms continue to refuse to grapple with this reality.  A 2020 report by the Prison Policy Initiative found nearly 100 state reforms in recent years that had explicitly refused to extend the changes to those convicted of violence.  In some cases, the tradeoff between non-violent and violent crimes is explicit.  In 2016, Maryland’s Democratic legislature scaled back sanctions for non-violent crimes, but also increased punishment for violent offenses.  And just recently, California Gov. Gavin Newsom vetoed a bill to limit the use of solitary confinement, long viewed by behavioral scientists as torture, an indication of the lack of stomach for deeper reforms even among so-called progressive state leaders.

The inability to discuss crimes of violence remains clear in our current politics. Oz’s attacks on Fetterman on crime are now echoed in Wisconsin, where Republican Sen. Ron Johnson says Democratic challenger Mandela Barnes demonstrated “far greater sympathy for the criminal or criminals versus law enforcement or the victims.”  Anecdotal attacks about violent crime have already caused two different New York governors to roll back the state’s 2020 bail reform law, before it was even possible to assess its impact.  Even with new evidence suggesting reform did not contribute much if anything to rising crime in 2020, further rollbacks loom for 2023.  And Virginia recently amended a law that expanded the ability of people in prison to earn good time credits to expressly exclude those who were serving time for any crime of violence.

Meanwhile, as state prison populations fell nationwide by 15 percent from 2010 to 2019, Bureau of Justice Statistics data suggests that the number of people locked up for violence fell by just 1 percent; a separate analysis of the BJS data conducted by the Council on Criminal Justice estimated that the numbers confined for violence actually rose over that time, undermining the declines in drug and property cases.

Talking exclusively about drugs does little in the short-run and reinforces a narrative that appears to affirmatively undermine the sorts of difficult discussions we need to have about the ways we respond to violence.  There are things that Biden could have done, or at least done at the same time, that could have taken advantage of his bully pulpit.

He could have encouraged state and local governments to think about alternative ways to address not just crime, but serious violence.  Biden’s August 2022 Safer America Plan did include some funding for just this but that part of the plan was always secondary to the push to hire more police; it was even framed merely as a way to free up the police to focus more on violence....

He could have announced a push for a repeal of the PLRA or AEDPA, two Clinton era laws that continue to impose real costs on people held in prison or challenging potentially wrongful convictions.  Or, he could have pushed harder to amend the federal code to eliminate qualified immunity for police, or pushed state legislatures to pass such bills, about 35 of which have been proposed in the aftermath of George Floyd’s murder only to almost all be thwarted by police union lobbying.  Such an approach could help improve police-community relations, which in turn could help address the single biggest challenge we face in reducing violence: the general unwillingness of victims of violence to contact the police.

It’s true that these are long-shot proposals.  But short of pardoning every single person in federal prison — an impossibility — nothing any president does will have a significant impact on the size and reach of a criminal legal system that is almost entirely driven by local politics, policies, and funding.  The president’s biggest power is his ability to shape the debate around criminal legal policy, not the policy itself.

Biden’s proposal here did nothing to shape that debate. There are lots of ways he could have taken steps to push the discussion in the direction it needs to go, but he disappointingly chose to highlight, once again, marijuana.  That choice will make it harder to move the reform discussion beyond where it has mostly been mired for the past decade.

I am a big fan of so much of Pfaff's work, especially his emphasis on "the numbers," but there is much about this commentary that just does not add up.  For starters, these World Population data of incarceration rates suggests that the US would easily fall out of the top 10 in incarceration rates if we cut our prison population 40% by releasing everyone held for non-violent offenses.  Pfaff has long been eager to say we must not ignore violent offenders when thinking about the problem of mass incarceration.  That is basically right, but dramatic decreases in our use of prison for non-violent offense would still make a very big impact AND his own commentary highlights why this is far more politically achievable than massive cuts to sentences for violent offenders.  (Indeed, there is good reason to hope and expect that much shorter and many fewer prison sentences for non-violent offenses would serve as an essential first step to laying the foundation for reducing the overall severity scale of all our punishments.)  

More generally, Pfaff claims there is an "inability to discuss crimes of violence," but I am seeing plenty of discussion (and political ads) about crimes of violence and especially murder having increased considerably over the last few years.  When violent crime has spiked — which it clearly has and which Pfaff does not discuss — and when many polls indicate many voters are troubled greatly by this spike — which they clearly have and which Pfaff does not discuss — one should not be surprised that politicians are responsive to voter concerns about violent crime in their actions and rhetoric.  Indeed, I think it notable (and encouraging) that some criminal justice reform efforts continue moving forward (at least for non-violent crimes) even when "tough on crime" political conditions seems to be prevalent.

And while I support various reforms to PLRA and AEDPA and qualified immunity, I am not aware of any significant research or evidence that such reform will reduce violence in our communities.  If there was such evidence, these reforms could and likely would become a central element of reform supported by politicians on both sides of the aisle.  There are all sort of good arguments for all sorts of criminal justice reforms, but wishing away the facts of increased violent crime (and increased voter concerns about violent crime) will surely "make things worse for criminal legal reform in the long run," much more than will Prez Biden granting blanket pardons to thousands of marijuana possession offenders. 

"Promise or Peril?: The Political Path of Prison Abolition in America"

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

This article explores whether prison abolition as a movement will, on net, lead to more productive changes to criminal justice punishment practices or instead produce a backlash that hinders reform efforts.  For those who embrace abolition as an expressive reaction to what they view as the intolerable state of American punishment practices, the answer to that question may not matter.  But others adopt an abolitionist stance precisely because they believe it is the most effective political strategy for bringing about change to American criminal justice practices.  It is this latter goal of abolition that is the subject of this Article.

The most optimistic take is that the movement could shift the conversation around crime policy for bolder initiatives that dislodge the central role of prisons and punishment and shift attention to root causes of harm.  On this view, the abolitionist perspective can shift the Overton window to embrace much broader downsizing of prisons and investment in communities than would take place without the abolitionist challenge.  Moreover, the call for abolition is just the kind of simple, powerful rhetorical move that draws people to embrace it and helps mobilize grassroots efforts for change.

There is, however, a future political path for abolition that is less rosy.  Instead of helping the cause of decarceration and improving the lives of those under the control and supervision of the state’s punitive apparatus, there is the possibility that calls for abolition could lead to more harms than they prevent.  This risk exists for two main reasons. First, because the rhetoric of abolition is absolutist — the language being used is deliberate and calls for an end to prisons — there is the risk that approach will frighten segments of the public who would otherwise support even radical decarceration but who are not prepared to rule it out entirely.  The second reason an abolitionist framing may ultimately produce more harm than good is that some who seek abolition often use that goal as the yardstick for deciding what policy changes to support.  They reject what they call “reformist reforms” that do not contribute to dismantling the existing legal order. For example, many abolitionists reject calls to invest in improvements to prisons or put in place greater staffing, even if doing so would improve the lives of currently incarcerated people, on the view that this additional funding ultimately expands the role of prisons in society and leads to incarceration being more entrenched overall.  Abolitionists have also rejected laws that would release certain groups of incarcerated people —  such as those serving offenses that do not involve violence — because of a concern that those laws exclude others.  The abolitionist framing therefore runs the risk of sacrificing too many reforms that would benefit people currently suffering from incarceration for a utopia that will ultimately not materialize.

In weighing the pros and cons of abolition as a political organizing strategy, then, a great deal turns on the likelihood of prisons being abolished.  And on that score, the relatively recent history of another recent abolition movement — the movement to close state mental hospitals and provide community care to people with mental health needs known as deinstitutionalization — strongly suggests that the more pessimistic take on the fate of prison abolition will ultimately prove correct.  Deinstitutionalization is a cautionary tale with important lessons for today’s abolitionists and their political calculus.

It is an urgent question what strategy will best address the fact that prisons and jails in the United States are inhumane and dreadful.  For those of us committed to drastic changes to patterns of policing, prosecution, and punishment that perpetuate structural inequality and fail to reduce harm, what is the best path forward to achieve those goals?  Is the rhetoric and social organizing power of abolition beneficial because it will spark a successful political movement toward decarceration, or does it bring more political risks than benefits and therefore ultimately harm the goal of weening America off its reliance on prisons, jails, and other forms of detention?

This article answers these questions by first describing the abolitionist movement in Part I.  Part II considers the policy implications of an abolitionist framework.  Part III then turns to the political calculation and analyzes the political pros and cons of an abolitionist stance.  Drawing lessons from the defund the police movement and deinstitutionalization, it highlights where and why public resistance may emerge.

In the wake of historic pardons, noticing the federal prison population keeps growing during the Biden years

As a matter of pardon practice and marijuana policy, President Joe Biden's actions yesterday (basics here and here) qualify as both historic and consequential.  But, because nobody receives significant federal prison time for just simple marijuana possession, his mass pardon has absolutely no direct impact on the federal prison population.  I suspect some persons imprisoned for marijuana trafficking might cite the pardons in compassionate release motions, but I doubt these pardons alone will significantly impact how judges thinking about compassionate release issues.

More broadly, the same day as this pardon announcement, I thought to check the prison population numbers that the federal Bureau of Prisons updates weekly at this webpage.  As of October 6, 2022, the federal prison population clocks in at 158,949, which is the highest it has been since July 2020.   

The day after Joe Biden was inaugurated, I authored this post posing this question in the title: "Anyone bold enough to make predictions about the federal prison population — which is now at 151,646 according to BOP?".  That post highlighted notable recent realities about the the federal prison population (based on BOP data); there I highlighted that during Prez Trump's one term, the federal population count decreased almost 20%, dropping from 189,212 total federal inmates in January 2017 to 151,646 in January 2021. 

The dramatic federal prison population drop in the Trump years was largely a function of the FIRST STEP Act and especially COVID dynamics.  So, with COVID disruptions easing, it should not be too surprising to see some growth in the federal prison population.  Still, over the course of 21 months, we have now had the federal prison population grow over 7,300 persons, which amounts to federal population growth of almost 5%.  So, while I am eager to celebrate Prez Biden for getting out his clemency pen, there is still plenty more work to do.

Weekend round-up of stories from incarceration nation

Another busy week means another weekend effort to catch up with this round-up of links to a number of stories and commentaries concerning prison realities that caught my eye in recent days:

From the AP, "Alabama prisons reduce meals, nix visits amid inmate strike"

From Forbes, "First Appearance By Bureau Of Prisons Director Falls Shorts On Facts"

From The Guardian, "What’s Prison For? Concise diagnosis of a huge American problem"

From The Guardian, "‘Slavery by any name is wrong’: the push to end forced labor in prisons"

From the Marshall Project, "What an Alabama Prisoners’ Strike Tells Us About Prison Labor"

From NBC News, "Biden pledged to end solitary confinement. Federal prisons are increasing its use."

From the New York Times, "Justice Dept. to Seek Stiffer Sentences in Prisoner Abuse Cases"

From NPR, "What it's like serving a life sentence in prison with no chance of release"

From Scientific American, "Dementia in Prison Is Turning into an Epidemic: The U.S. Penal System Is Badly Unprepared"

From the Washington Post, "They’re in federal prison, and they’re done staying quiet"

Spotlighting again the decarceral success of the CARES Act

Because it is often so very easy to notice and spotlight government failings in the crime and punishment arena, it is nice to have opportunities to highlight government successes in this world.  So, though I have noted before the great data about the success of persons released from federal prison early under the CARES Act, I am happy to see Molly Gill talking up this data in this new Washington Post opinion piece headlined "Thousands were released from prison during covid. The results are shocking."  Here are excerpts:

We are keeping many people in prison even though they are no danger to the public, a jaw-dropping new statistic shows. That serves as proof that it’s time to rethink our incarceration policies for those with a low risk of reoffending.

To protect those most vulnerable to covid-19 during the pandemic, the Cares Act allowed the Justice Department to order the release of people in federal prisons and place them on home confinement. More than 11,000 people were eventually released. Of those, the Bureau of Prisons (BOP) reported that only 17 of them committed new crimes.

That’s not a typo. Seventeen. That’s a 0.15 percent recidivism rate in a country where it’s normal for 30 to 65 percent of people coming home from prison to reoffend within three years of release.

Of those 17 people, most new offenses were for possessing or selling drugs or other minor offenses. Of the 17 new crimes, only one was violent (an aggravated assault), and none were sex offenses.

This extremely low recidivism rate shows there are many, many people in prison we can safely release to the community. These 11,000 releases were not random. People in low- and minimum-security prisons or at high risk of complications from covid were prioritized for consideration for release....

The Cares Act policy teaches us that many of our prison sentences are unnecessarily lengthy. People who commit crimes should be held accountable, and that might include serious time in prison. Many of the people released to home confinement had years or even decades left to serve on their sentences. But they changed in prison and are no longer a danger to others, as the new data confirms.

Releases to home confinement were also focused on two groups of people who pose little to no risk to public safety: the elderly and the ill (i.e., those most likely to face serious covid complications). Study after study confirms that people become less likely to reoffend as they get older. America’s elderly prison population is growing rapidly, because of our use of lengthy prison terms.

People with serious chronic illnesses or physical disabilities are another group who can be safely released from long sentences. They are not dangerous, but their increased medical needs make them exponentially more expensive to incarcerate. Taxpayers aren’t getting much public safety bang for their buck when we incarcerate bedridden people.

The federal Cares Act home confinement program should inspire similar programs across the country. Virtually all states have programs available to release elderly or very sick people from prison, but they are hardly used and should be expanded. States should also give people serving the longest sentences a chance to go back to court after 10 or 15 years and prove that they have changed and can be safely released.

The data is in. It shows that we can thoughtfully release low-risk people from prison with supervision and not cause a new crime wave. At a time when crime is going up in so many cities and towns, we cannot afford to waste money or resources keeping those who no longer need to be in prison locked up.

Prior related posts:

• Another encouraging report on those released under federal CARES Act
• Celebrating "real" recidivism is essentially nil, and even technical violations stunningly low, for CARES home confinement cohort
• More notable details on the remarkable success of those released from federal prison under CARES Act  

New bill, Federal Prison Oversight Act, part of continued congressional push for federal prison oversight

As detailed in this AP article, a "bipartisan group of U.S. senators introduced legislation Wednesday to overhaul oversight and bring greater transparency to the crisis-plagued federal Bureau of Prisons."  Here is more:

The bill, called the Federal Prison Oversight Act, would require the Justice Department to create a prisons ombudsman to field complaints about prison conditions, and would compel the department’s inspector general to evaluate risks and abuses at all 122 federal prison facilities.

The bill, sponsored by Sens. Jon Ossoff, D-Ga., Mike Braun, R-Ind., and Dick Durbin, D-Ill., is being introduced a day before Bureau of Prisons Director Colette Peters is scheduled to testify before the Senate Judiciary Committee, which Durbin chairs.

Ossoff, Braun and Durbin are three founding members of the Senate Bipartisan Prison Policy Working Group. The panel launched in February amid turmoil at the Bureau of Prisons, much of it uncovered by AP reporting, including rampant sexual abuse and other criminal misconduct by staff, chronic understaffing, escapes and deaths. “It’s no secret that BOP has been plagued by misconduct,” Durbin said. “One investigation after another has revealed a culture of abuse, mismanagement, corruption, torture, and death that reaches to the highest levels. And yet it still operates without any meaningful independent oversight. The result has been catastrophic for both incarcerated people and staff.”

A companion bill in the House is sponsored by Reps. Kelly Armstrong, R-N.D. and Reps. Lucy McBath, D-Ga. Under the Federal Prison Oversight Act, the Justice Department’s inspector general would be required to conduct risk-based inspections of all federal prison facilities, provide recommendations to address deficiencies and assign each facility a risk score. Higher-risk facilities would then receive more frequent inspections.

The inspector general would also be required to report findings and recommendations to Congress and the public, and the Bureau of Prisons would then need to respond with a corrective action plan within 60 days. A prison ombudsman would be established to take complaints — via a secure hotline and online form — and investigate and report to the attorney general and Congress dangerous conditions affecting the health, safety, welfare and rights of inmates and staff....

The reforms have the backing of a wide array of groups involved in the federal prison system and across the political spectrum, including the correctional officers’ union, the inmate advocacy group Families Against Mandatory Minimums, the American Conservative Union and the Koch brothers-backed Americans for Prosperity....  Shane Fausey, the president of the Council of Prison Locals union, is also scheduled to testify Thursday, along with the former head of Pennsylvania’s state prison system, John Wetzel, and Cecilia Cardenas, a former federal inmate.

The folks at FAMM have this detailed summary of The Federal Prison Oversight Act of 2022.  Today's Senate Judiciary Committee hearing, "Oversight of the Federal Bureau of Prisons," can be followed at this link.  And Shanna Rifkin is live-tweeting the hearing starting with this tweet.

"Voices from Within the Federal Bureau of Prisons: A System Designed to Silence and Dehumanize"

The title of this post is the title of this notable recent report from the nonprofits More Than Our Crimes and The Washington Lawyers Committee for Civil Rights and Urban Affairs. Here is part of the report's executive summary:

Prison walls are erected not only to keep people in, but to prevent the world from seeing the abuses of our carceral system.  The inhumanity of what happens behind bars, as is demonstrated by the accounts of incarcerated persons in this report, is deliberately hidden from view in faraway prisons surrounded by high walls and double fences of razor wire.  Few people other than those who are confined or work in prisons have a full view of how they operate.  Glimpses provided by litigation or a scandal are rare and transitory; sustained transparency is nonexistent. This opacity allows dehumanizing conditions to be sustained and grow worse.

The Federal Bureau of Prisons (FBOP) is comprised of 122 institutions, incarcerating more than 157,000 people, that are among the least transparent and accountable in the nation.  The violent, dehumanizing and dangerous conditions in FBOP prisons harm families and communities in every state; impacting the mothers, fathers, children and siblings who lose loved ones to this sprawling network....

Yet, despite this extremely problematic history, the FBOP operates with no real accountability. The Department of Justice (DOJ) Inspector General routinely lists “maintaining a safe, secure and humane prison system” as one of its top management challenges.  FBOP and prison leadership seem to be either unwilling or incapable of ensuring that even minimum standards are met.  As Sen. Dick Durban, chair of the Senate Judiciary Committee, noted, FBOP Director Michael Carvajal (since resigned) has “overseen a series of mounting crises, including failing to protect BOP staff and inmates from the COVID-19 pandemic, failing to address chronic understaffing, failing to implement the landmark First Step Act, and more.”

However, the overarching conclusion of this report is that reform cannot be achieved solely by replacing Director Carvajal with new blood.  The problems with the FBOP are cultural, entrenched and systemic, and independently enforced accountability must be the cornerstone of any serious attempt to change.  That cannot be achieved without replacing the current grievance procedure that incarcerated individuals must follow — which too often triggers retaliation as severe as physical abuse — with a process that is safe, reliable and fair.

Taking account of extreme sentences under "habitual offender" laws in Mississippi and Louisiana

Tana Ganeva has this lengthy new piece at The Appeal which details the impact and import of repeat offender laws in two southern states. The full title of this piece previews in coverage: "'Habitual Offender' Laws Imprison Thousands for Small Crimes — Sometimes for Life: Data obtained by The Appeal show nearly 2,000 people in Mississippi and Louisiana are serving long — and sometimes life — sentences after they were labeled “habitual offenders." But most are behind bars for small crimes like drug possession." I recommend the full piece and here are some excerpts:

The Appeal took a deeper look at Louisiana and Mississippi, states that changed their laws in 1994 or 1995 and now have some of the highest rates of incarcerated people in the country.  The Appeal sent freedom of information requests to both the Mississippi Department of Corrections and Louisiana Department of Public Safety and Corrections for data on people serving 20-year-plus sentences and, where possible, information regarding whether their sentences had been enhanced by a habitual offender statute.  We broke the data down by race, crime, time served, and sentence. In total, datasets suggest there are close to 2,000 people currently serving long sentences enhanced by habitual offender statutes in these two states.

A small number of these people in these two states committed serious crimes.  But most are serving 20-plus years primarily because of habitual offender status, where the triggering offense was drug possession, drug sale, illegal gun possession, or another crime besides murder or rape.  Scores of people are serving virtual or literal life sentences for nonviolent drug possession....

In the mid-1990s, Mississippi instituted some of the most restrictive habitual offender laws in the country and virtually did away with parole for repeat offenders....  According to data analyzed by The Appeal, as of August 4, 2021, there were nearly 600 people in Mississippi who were serving 20 years or more with no parole date and were considered habitual offenders....  In Mississippi, 75 percent of “habitual offenders” are Black, while 25 percent are white. (Other racial groups make up a negligible number.) ...

The majority of habitual offender convictions analyzed by The Appeal are linked to possession of drugs, possession of firearms, or contraband in prison. In the most extreme cases, multiple people convicted of drug crimes were given virtual life sentences because of their habitual offender status.  Perry Armstead is serving 63 years for five charges of cocaine possession and sales. Keith Baskin is serving 60 years for possession of cannabis with intent to distribute. Timothy Bell is serving 80 years after being convicted of possessing a firearm as a felon and selling meth twice. Malcolm Crump is serving 56 years for selling meth on three occasions. Paul Houser got 60 years for meth. Anthony Jefferson got 60 years for possession of cannabis with intent to distribute....

There are nearly 900 people serving sentences longer than 20 years in Louisiana because of habitual offender statutes who aren’t eligible for parole. (Overall, there are more than four thousand people serving life without parole in the state.)

According to data acquired through a freedom of information request, the most serious crimes are in the minority. Less than 3 percent of those imprisoned due to habitual offender status were convicted of first-degree murder.  Slightly less than 5 percent are serving time for second-degree murder. Almost 6 percent are serving time for rape. Meanwhile, 12.6 percent are serving 20-plus years because of habitual offender statutes triggered by a drug crime.  Of those serving decades for drug crimes, 49 people were convicted for possession, 34 for possession with intent to distribute, and 31 for distribution.